Powell v. Tosh

Citation929 F.Supp.2d 691
Decision Date08 March 2013
Docket NumberCase No. 5:09–CV–121–R.
PartiesTerry POWELL, et al., Plaintiffs v. Jimmy TOSH, et al., Defendants.
CourtUnited States District Courts. 6th Circuit. United States District Court of Western District of Kentucky

OPINION TEXT STARTS HERE

Diana Riddick, Benton, KY, Elizabeth R. Bennett, Louisville, KY, John S. Harbison, Colchester, VT, Randal A. Strobo, W. Henry Graddy, IV, W.H. Graddy & Associates, Midway, KY, Jerome P. Prather, William R. Garmer, Garmer & Prather PLLC, Lexington, KY, for Plaintiffs.

Drew B. Meadows, John William Walters, Kellie M. Collins, Golden & Walters PLLC, Matthew T. Lockaby, Reminger Co., LPA, Lexington, KY, Timothy M. Strong, Floyd P. Bienstock, Steptoe & Johnson, LLP, Phoenix, AZ, Alexander M. Bullock, Kilpatrick Townsend & Stockton, LLP, Stewart D. Fried, Olsson, Frank, Weeda, Terman, Matz PC, Washington, DC, Brian Scott Jones, Reminger Co., LPA, Barry L. Dunn, Christopher E. Schaefer, Douglas C. Ballantine, Mark T. Hurst, Stoll Keenon Ogden PLLC, Louisville, KY, Van F. Sims, Boswell Sims & Vasseur, PLLC, Paducah, KY, for Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS B. RUSSELL, Senior District Judge.

This matter is before the Court upon the following motions:

(1) Defendant Eric Howell's motion for summary judgment, (DN 340), to which Plaintiffs have responded, (DN 376), and the Davis/Howell Defendants 1 have collectively replied, (DN 433).

(2) Defendants Ron and Heather Davis's motion for summary judgment, (DN 343), to which Plaintiffs have responded, (DN 378), and the Davises have replied, (DN 445).

(3) The Davis/Howell Defendants' joint motion for summary judgment on Plaintiffs' water contamination claims, (DN 344), to which Plaintiffs have responded, (DN 376), and the Davis/Howell Defendants have jointly replied, (DN 433).

(4) The Tosh Defendants' 2 partial motion for summary judgment on Plaintiffs' negligence per se claims, (DN 347), to which both Plaintiffs, (DN 379), and the Davis/Howell Defendants, (DN 396), have responded and the Tosh Defendants have replied, (DN 435).

(5) The Tosh Defendants' partial motion for summary judgment on Plaintiffs' product liability claims, (DN 353), to which both Plaintiffs, (DN 380), and the Davis/Howell Defendants, (DN 398), have responded and the Tosh Defendants have replied, (DN 434).

(6) The Tosh Defendants' partial motion for summary judgment on Plaintiffs' civil conspiracy claims, (DN 355), to which both Plaintiffs, (DN 382), and the Davis/Howell Defendants, (DN 392), have responded.

(7) The Tosh Defendants' partial motion for summary judgment on Plaintiffs' punitive damages claims, (DN 356), to which both Plaintiffs, (DN 383), and the Davis/Howell Defendants, (DN 399), have responded and the Tosh Defendants have replied, (DN 436).

(8) The Tosh Defendants' partial motion for summary judgment on Plaintiffs' battery claims, (DN 358), to which both Plaintiffs, (DN 384), and the Davis/Howell Defendants, (DN 388), have responded and the Tosh Defendants have replied, (DN 447).

(9) The Tosh Defendants' partial motion for summary judgment on Plaintiffs' trespass claims, (DN 359), to which both Plaintiffs, (DN 386), and the Davis/Howell Defendants, (DN 403), have responded and the Tosh Defendants have replied, (DN 448).

(10) The Tosh Defendants' partial motion for summary judgment on Plaintiffs' nuisance claims, (DN 360), to which both Plaintiffs, (DN 387), and the Davis/Howell Defendants, (DN 397), have responded and the Tosh Defendants have replied, (DN 450).

(11) The Tosh Defendants' partial motion for summary judgment on vicarious liability, (DN 361), to which both Plaintiffs, (DN 426), and the Davis/Howell Defendants, (DN 400), have responded and the Tosh Defendants have replied, (DN 446).

(12) The Plaintiffs' partial motion for summary judgment, (DN 363), to which both the Tosh Defendants, (DN 410), and the Davis/Howell Defendants, (DN 385), have responded and Plaintiffs have replied, (DN 440 & 441).

(13) The Plaintiffs' motion for a permanent injunction, (DN 365), to which both the Tosh Defendants, (DN 409), and the Davis/Howell Defendants, (DN 375), have responded and the Plaintiffs have replied, (DN 438).

(14) The Tosh Defendants' partial motion for summary judgment on Plaintiffs' negligence claims, (DN 366), to which both the Plaintiffs, (DN 391), and the Davis/Howell Defendants, (DN 395), have responded and the Tosh Defendants have replied, (DN 449).

(15) Plaintiffs' Motion to Amend/Correct the Scheduling Order, (DN 407), to which Defendants collectively have responded, (DN 455), and Plaintiffs have replied, (DN 465).

These matters are now fully briefed and ripe for adjudication.

BACKGROUND

In May 2009, Plaintiffs, who are residents and property owners in Marshall County, Kentucky, filed suit against the Defendants. Defendants Eric Howell, Ron Davis, and Heather Howell Davis (collectively the “Davis/Howell Defendants) are Marshall County residents and property owners who have constructed swine barns on their properties. Each named Plaintiff is within a one-mile radius of one of these swine barns. Through a variety of legal theories, Plaintiffs allege that these barns are defectively constructed products that create a nuisance and cause them injury.

Defendant Eric Howell operates three barns on Wilkins Road, with an aggregate capacity to house approximately 1800 pigs. The barns, built in 1973, 1991, and 1992, have partially slatted floors with 5–feet–deep pits. Defendant Ron Davis operates two barns on Brewers Highway,3 which began operations in December 2006 and May 2007, respectively. Defendant Heather Howell Davis has constructed two barns on her property on Lela Green Road. These barns became operational in 2007 and 2009. The Davises' four barns were built according to a standard industry “deep-pit” design required under a Swine Service Agreement with Tosh Farms General Partnership. The barns utilize 8–feet–deep concrete pits to store manure, which enters the pits after being pushed through slatted floors beneath the pig pens. The barns have the capacity to hold roughly 13 to 14 months' worth of accumulated waste, which the Davis/Howell Defendants will from time to time pump from the pits on row crop land owned by, or available to, them.

Plaintiffs have also brought claims against Jimmy Tosh; Tosh Farms General Partnership; 4 Tosh Farms, LLC; 5 Shiloh Hills, LLC; 6 Pig Palace, LLC; 7 Tosh Pork, LLC; 8 and Bacon by Gosh, Inc.,9referred to collectively in this opinion as the “Tosh Defendants.” Jimmy Tosh and his family own several affiliated companies that are engaged in commercial swine farming in both Kentucky and Tennessee. Each of these companies is engaged in a particular aspect of the swine-farming industry. For example, Bacon By Gosh is engaged in the transportation of swine and Shiloh Hills makes pre-cast concrete components for agricultural use.

Several years ago, Tosh Farms GP sought to expand its business in Western Kentucky and began seeking additional growers, including the Davis/Howell Defendants. There has been opposition to this expansion, including the filing of formal complaints with Kentucky state agencies. For example, to operate a hog barn, the owner or operator must be issued certain permits from the Kentucky Environmental and Public Protection Cabinet (“Cabinet”) and the Kentucky Division of Water (“Division”). Several individuals have opposed issuing permits to hog farm owners and operators by filing objections during the public comment period. Despite these objections, the necessary permits were issued and several hog barns are now in operation.

Although Defendant Eric Howell has previously raised hogs under contract with Tosh Farms GP, his current operations are not affiliated with any of the Tosh entities. However, Ron and Heather Davis began raising hogs pursuant to a Tosh Swine Services Agreement (SSA) in 2006, and that relationship continues today. Tosh Farms GP was party to the SSAs until 2007, at which point the partnership shifted its focus to row-cropping operations and assigned all its SSAs to Tosh Pork. Since 2007, Tosh Pork has entered into all subsequent SSAs and owns the hogs raised by the Davis/Howell Defendants under those agreements.

All Plaintiffs allege they began suffering from “recurring intolerable noxious odors emanating from the Defendants' swine waste facilities constituting a nuisance and decreasing the value of [their] residence and real property” soon after the second Brewers Highway barn began operations in the spring of 2007. The majority of Plaintiffs documented their experiences with the odors in odor logs, which they kept until the discovery deadline in this case. Plaintiffs assert they did not experience any odor events until Ron Davis built the Brewers Highway barns. Subsequent to the barns' construction, Plaintiffs frequently began to smell hog odors at their homes. Plaintiffs have described the hog odors as sickening, gagging and nauseating, pungent and terrible, overwhelming, oppressive, “knock you in the face bad,” “the raunchiest smell I ever smelled,” a rotting cow carcass, and “feces and raw urine.” As a result of these odors, Plaintiffs have variously testified that they no longer host friends and family members at their homes, their children are unable to play outside as frequently, they do not use their homes' swimming pools or patios, and they are unable to open their windows.

Additionally, some Plaintiffs allege other injuries. For example, certain Plaintiffs allege that the injection method utilized by the Davis/Howell Defendants to fertilize their land has and will constitute an additional recurring nuisance and further injure them. Plaintiffs Rhonda Free, Brenda Jordan, and Michael and Kandis Jordan allege water contamination. Plaintiff Terry Powell alleges the odors have caused physical symptoms such as congestion, a runny nose, and vomiting.

Plaintiffs filed their original complaint in Marshall Circuit Court on May 29, 2009, against the Davis/Howell Defendants and the Tosh Defendants. P...

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