One of the three circuit judges in the Smithfield Murphy-Brown court case loss (reported here last week) was Steven Agee, a former justice of the Supreme Court of Virginia. He was appointed to the 4th Circuit Court of Appeals by President George W. Bush. He graduated from the University of Virginia Law School and has a master’s in law from New York University.
Why am I telling you about Judge Agee? Here’s what he said about the majority opinion in the Smithfield case:
“The prejudice from this error is so profound that a full new trial is necessary.”
His dissent is worth reviewing for future CAFO cases. The majority opinion is so incorrect regarding admissibility of expert witness testimony that it is breathtaking. Judge Agee’s dissent found “…the district court abused its discretion in (1) failing to exercise its Daubert gatekeeping function, which should have led to the limitation of testimony from Plaintiffs’ expert witness Dr. Shane Rogers, and (2) [not] excluding Murphy-Brown’s expert witness Dr. Pamela Dalton from testifying about the results olfactometer measurements taken at and near Kinlaw Farms (a contract grower for Murphy Brown). These evidentiary errors so affected the entire trial that they too require remanding for a new trial.”
Dr. Shane Rogers, accepted by the trial court as an expert, never mentions odor in his resume. He teaches at Clarkson University in New York and has worked as an environmental engineer for the U.S. EPA. Dr. Pamela Dalton, on the other hand, is a PhD and attempts to perceive how odor and sensory irritation impacts individuals. Dr. Dalton has published articles on odor and how the individual perceives odor and sensory irritation from volatile chemicals.
The District Court judge and the Court of Appeals majority accepted Dr. Shane Rogers’ view of odor and excluded Smithfield Murphy-Brown’s Dr. Dalton testimony.
The courts made a “huge legal mistake” on this expert issue. Judge Agee was correct in his analysis on the expert testimony and it is surprising and appalling other judges dismissed his view. His dissent in the Smithfield Murphy-Brown case should be read by all lawyers defending CAFO odor cases.
Dr. Rogers was allowed to testify as an expert witness because he had used a test known as “pig-2-bac”. His theory about this genetic marker is that it is unique to pig feces. Therefore, if he finds pig feces, they act as a chemical representation of odor. (I have been involved in numerous similar cases and have never heard of this test.)
Dr. Rogers convinced both the district court and the Court of Appeals that evidence of pig-2-bac “…served as a reliable proxy for evidence of odor.” Keep in mind that pig-2-bac has never, to my knowledge, been used in a court of law for odor. In fact, Dr. Rogers indicated he did not know of anyone who had ever used his method. Smithfield Murphy-Brown tried to exclude Dr. Rogers’ testimony and even moved for a new trial, and the District Court of North Carolina summarily denied this motion.
What is the Daubert rule?
There is a legal gatekeeping obligation for all judges under what is known as the Daubert Standard. The Daubert rule, in the Federal Rule of Evidence 702, tells the court how to admit scientific evidence from an expert.
It is hard to imagine any judge would be so prejudiced as to not allow Smithfield Murphy-Brown to enter and have examined Dr. Pamela Dalton, a renowned expert of odors. Judge Agee, in commenting on this issue, said, “Even a cursory review of the record demonstrates that the court abandoned this [Daubert] required function.”
The dissent was also extremely critical of Dr. Rogers’ protocols for collecting samples. In fact, the judge was so critical of the district court judge he stated that it is the Daubert function “…to protect juries from being swayed by dubious scientific testimony…”
It appears from the dissent that Dr. Rogers should have been excluded from the original trial, not Dr. Dalton.
The dissent raises concern as to how unfair, improper, and yes illegal Smithfield Murphy-Brown was treated by the court system. Judge Agee’s dissent is a road map for all who find themselves in a Right-to-Farm action based on nuisance.
The dissent also demonstrates how unobjective even the ag media covers issues of critical importance to animal agriculture.