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TDM Farms, Inc. v. Wilhoite Family Farm, LLC

Court of Appeals of Indiana

June 7, 2012, Decided; June 7, 2012, Filed

No. 79A02-1101-PL-33



NAJAM, Judge


TDM Farms, Inc. of North Carolina and Dale Johnson (collectively, "TDM")1 bring this interlocutory appeal from the trial court's denial of their motion for summary judgment against Wilhoite Family Farm, LLC ("Wilhoite"). Wilhoite had filed suit against TDM alleging nuisance, negligence, and trespass after TDM intentionally introduced a highly contagious virus—the Porcine Reproductive and Respiratory Syndrome ("PRRS")—to its hog farm, which then spread to Wilhoite's neighboring hog farm and caused significant loss. On appeal, TDM contends that summary judgment is appropriate  [**2] because Wilhoite's claims are either preempted by the federal Virus-Serum Toxin Act ("the VSTA"), 21 U.S.C. §§ 151-159, or they are barred by Indiana's Right to Farm Act, Ind. Code § 32-30-6-9.

We hold that Wilhoite's claims are outside the scope of the VSTA and corresponding federal regulations. We also hold that the Right to Farm Act does not apply on these facts. Thus, we affirm the trial court's denial of summary judgment.


TDM is a North Carolina-based commercial hog farming operation. Its primary breeding facilities and sow herds are in North Carolina. But once a pig is weaned from its mother, TDM ships the pig to a "finishing farm" where the pig is  [*100]  grown to market weight. TDM currently has about forty finishing farm contracts in Indiana, which, before 2008, included a contract with Dale Johnson for use of his farm in Tippecanoe County ("the Johnson farm").

In January of 2008, one of TDM's North Carolina  [**3] farms ("TDM #5") broke out with PRRS. PRRS is a highly contagious porcine virus believed to have hundreds, if not thousands, of different genetic strains. The virus can be spread in a number of ways: by contact with an infected pig; in utero from an infected mother to her fetus; or by contact with an area, such as a barn, shipping truck, or farmer, that was recently contacted by an infected pig. It is believed that insects and birds are capable of spreading the virus and, while "difficult to document," a leading theory suggests that PRRS is an airborne virus. See Appellant's App. at 515-16. Once a herd is infected, the virus tends to remain for an extended period of time. Along with respiratory symptoms, a pregnant sow infected with PRRS can have a spontaneous abortion, a still birth, weak piglets, and decreased future reproductivity. This, of course, results in serious financial harm to farmers.

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969 N.E.2d 97 *; 2012 Ind. App. LEXIS 272 **; 2012 WL 2051090

TDM FARMS, INC. OF NORTH CAROLINA and DALE JOHNSON, Appellants-Defendants, vs. WILHOITE FAMILY FARM, LLC, Appellee-Plaintiff.

Prior History:  [**1] APPEAL FROM THE TIPPECANOE SUPERIOR COURT. The Honorable Thomas H. Busch, Judge. Cause No. 79D02-0908-PL-39.


farm, serum, virus, preemption, nuisance, regulations, preempted, agricultural, agricultural operations, herd, trespass, animals, pig, summary judgment, inoculation, efficacy, infected, disease, potency, purity, trial court, biological, conditions, products, strain, hog, common law action, vaccine, gilts, farming operations

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Appeals, Summary Judgment Review, Standards of Review, Burdens of Proof, Movant Persuasion & Proof, Nonmovant Persuasion & Proof, Constitutional Law, Supremacy Clause, Federal Preemption, Supreme Law of the Land, Standards of Review, De Novo Review, Governments, Legislation, General Overview, Business & Corporate Compliance, Governments, Agriculture & Food, Disease & Pest Control, Real Property Law, Torts, Nuisance, Elements, Torts, Negligence, Trespass to Real Property