IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION No. 7:14-cv BR ) ) ) ) ) ) ) ) ) )

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1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION No. 7:14-cv BR JOYCE MCKIVER, et al. Plaintiffs, v. MURPHY-BROWN, LLC, Defendant. DEFENDANT MURPHY-BROWN LLC S MOTION TO IMPOSE STATUTORY CAP ON PUNITIVE DAMAGES Pursuant to N.C. Gen. Stat. 1D-25 and Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996, Defendant Murphy-Brown LLC ( Murphy-Brown hereby moves for an order granting its Motion to Impose Statutory Cap on Punitive Damages, reducing the punitive damages award for Plaintiffs Joyce McKiver, Delois Lewis, Daphne McKoy, individually and as guardian of her minor child A. (daughter, and minor child A. (son, Archie Wright, Jr., Tammy Lloyd, Deborah Johnson, Ethel Davis, and Priscilla Dunham ( First Trial Plaintiffs to $250,000 per First Trial Plaintiff. Murphy-Brown also requests that this Court award such other and further relief as the Court deems appropriate. The grounds for this Motion are set forth with particularity below N.C. Gen. Stat. 1D-25(b states that [p]unitive damages awarded against a defendant shall not exceed three times the amount of compensatory damages or two hundred 1 Murphy-Brown reserves all rights related to its punitive damages arguments in its Motion to Dismiss (Doc. 18, Motion for Partial Summary Judgment on Plaintiffs Punitive Damages Claims (In re: NC Swine Farm Nuisance Litigation, Master Case No. 5:15-CV BR ( MC (MC Doc. 282, Motion for Judgment as a Matter of Law (Doc. 225, Motion for Judgment as a Matter of Law at the Close of Evidence (Doc. 255, and forthcoming appeal that this Court should not have permitted the First Trial Plaintiffs punitive damages claims to be submitted to the jury and that Murphy-Brown is entitled to judgment as to those claims. Case 7:14-cv BR Document 275 Filed 05/02/18 Page 1 of 5

2 fifty thousand dollars ($250,000, whichever is greater. Further, [i]f a trier of fact returns a verdict for punitive damages in excess of the maximum amount specified under this subsection, the trial court shall reduce the award and enter judgment for punitive damages in the maximum amount. N.C. Gen. Stat. 1D-25(b (emphasis added. 2. State statutes limiting damages unquestionably apply in diversity actions. In Gasperini, the Supreme Court of the United States analyzed whether the district court sitting in diversity had to apply a New York law capping recoverable damages for the prevailing plaintiff. 518 U.S. at , 426. The Supreme Court answered this question in the affirmative, holding that Erie [R. Co. v. Tompkins] precludes a recovery in federal court significantly larger than the recovery that would have been tolerated in state court. 518 U.S. at 431. The Supreme Court explained that if federal courts failed to apply the damages cap, substantial variations between state and federal money judgments may be expected. Id. at 430 (quoting Hanna v. Plumber, 380 U.S. 460, (1965. This would undermine the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws. Id. at 428, (quoting Hanna, 380 U.S. at 468. Thus, the Supreme Court ruled that state statutes capping damage awards are substantive law and must be applied in diversity actions. Id. at 428; see also Racher v. Westlake Nursing Home Ltd. P Ship, 871 F.3d 1152, 1162 (10th Cir ( It is undisputed that a state s statutory limit on damages is substantive law that federal courts sitting in diversity must apply[.] (citing Gasperini, 518 U.S. at Furthermore, this Court has recently applied N.C. Gen. Stat. 1D-25(b. See Vandevender v. Blue Ridge of Raleigh, LLC, No. 5:14-cv-150-BO, 2017 WL , at *4 (E.D.N.C. July 5, 2017; see also Mann v. Swiggett, No. 5:10-cv-172-D, 2012 WL , at 2 Case 7:14-cv BR Document 275 Filed 05/02/18 Page 2 of 5

3 *4-5, *8 (E.D.N.C. Oct. 9, 2012 (applying North Carolina law on punitive damages. For these reasons, N.C. Gen. Stat. 1D-25 applies here. 4. Although the First Trial Plaintiffs live different distances and directions from Kinlaw Farm and alleged different interferences with the use and enjoyment of their property, the jury awarded each First Trial Plaintiff the same $75,000 figure in compensatory damages. (Doc Multiplying this number by three (on a per-plaintiff basis 2 equals $225,000. Because $225,000 is less than $250,000, N.C. Gen. Stat. 1D-25 requires reduction of the assessed $5 million in punitive damages per First Trial Plaintiff to $250,000. Indeed, the language of the statute, which states that the trial court shall reduce the award, leaves this Court no discretion. The overall punitive damage award in favor of the First Trial Plaintiffs totals $2.5 million. 5. A proposed Order is attached as Exhibit 1 to this Motion. Murphy-Brown reserves the right to request a ruling from this Court pursuant to Fed. R. Civ. P. 54(b that the judgment entered as to the First Trial Plaintiffs is final and appealable and will be filing a motion requesting such an order within the coming week. Respectfully submitted: May 2, 2018 /s/ Mark E. Anderson Mark E. Anderson (N.C. Bar No Fayetteville St. #2600 Suite 2600 Raleigh, North Carolina Telephone: ( Facsimile: ( manderson@mcguirewoods.com 2 The Supreme Court of North Carolina held in Rhyne v. K-Mart Corp., 358 N.C. 160, (2004, that the mandatory punitive damage award reduction under N.C. Gen. Stat. 1D-25 operates on a per-plaintiff basis. 3 Case 7:14-cv BR Document 275 Filed 05/02/18 Page 3 of 5

4 Eugene E. Mathews III (Va. Bar No Tennille J. Checkovich (Va. Bar No (By Special Appearance Gateway Plaza 800 East Canal Street Richmond, Virginia Telephone: ( Facsimile: ( Attorneys for Murphy-Brown LLC 4 Case 7:14-cv BR Document 275 Filed 05/02/18 Page 4 of 5

5 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION No. 7:14-cv BR JOYCE MCKIVER, et al. Plaintiffs, v. MURPHY-BROWN, LLC, Defendant. CERTIFICATE OF SERVICE I, Mark E. Anderson, do hereby certify that on the 2nd day of May, 2018, I caused a true and correct copy of the above and foregoing DEFENDANT MURPHY-BROWN LLC S MOTION TO IMPOSE STATUTORY CAP ON PUNITIVE DAMAGES to be filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing (NEF to all CM/ECF registered attorneys indicated on the NEF, including counsel for Plaintiffs. Respectfully submitted, /s/ Mark E. Anderson Mark E. Anderson (N.C. Bar No Fayetteville St. #2600 Suite 2600 Raleigh, North Carolina Telephone: ( Facsimile: ( manderson@mcguirewoods.com Attorney for Murphy-Brown LLC 5 Case 7:14-cv BR Document 275 Filed 05/02/18 Page 5 of 5