# Joyce McKiver v. Murphy-Brown, LLC > Court of Appeals for the Fourth Circuit · November 19, 2020 · 980 F.3d 937 URL: https://www.frixlaw.com/law-library/cases/4588098 ## Case - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** November 19, 2020 - **Citations:** 980 F.3d 937 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 76 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4588098 ## How later opinions describe it (automated extraction) - finding that an absent party was not a necessary party because it “did not seek to join the suit or otherwise claim an interest relating to the subject of an action” - affirming denial of joinder under Rule 19(a)(1)(B)(1) where party seeking joinder expected that it could lose a contract based on the outcome of the litigation ## Opinion text PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-1019 JOYCE MCKIVER; DELOIS LEWIS; DAPHNE MCKOY; ALEXANDRIA MCKOY; ANTONIO KEVIN MCKOY; ARCHIE WRIGHT, JR.; TAMMY LLOYD; DEBORAH JOHNSON; ETHEL DAVIS; PRISCILLA DUNHAM, Plaintiffs - Appellees, and DENNIS MCKIVER, JR.; LAJUNE JESSUP; DON LLOYD, Administrator of the Estate of Fred Lloyd; TERESA LLOYD; TANECHIA LLOYD; CARL LEWIS; ANNETTE MCKIVER; KAREN MCKIVER; BRIONNA MCKIVER; EDWARD OWENS; DAISY LLOYD; A. (DAUGHTER); A. (SON), Plaintiffs, v. MURPHY-BROWN, LLC, d/b/a Smithfield Hog Production Division, Defendant – Appellant. ------------------------------ AMERICAN FARM BUREAU FEDERATION; NATIONAL PORK PRODUCERS COUNCIL; NORTH CAROLINA FARM BUREAU FEDERATION; NORTH CAROLINA PORK COUNCIL; NORTH AMERICAN MEAT INSTITUTE; NATIONAL ASSOCIATION OF MANUFACTURERS; GROCERY MANUFACTURERS ASSOCIATION; CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; NATIONAL TURKEY FEDERATION; NATIONAL CHICKEN COUNCIL; JOEY D. CARTER; JOEY CARTER FARMS; WILLIAM R. KINLAW; KINLAW FARMS, LLC; PAUL STANLEY; PAGLE CORP.; GREENWOOD LIVESTOCK, LLC, Amici Supporting Appellant. LAW PROFESSORS WITH EXPERTISE IN TORT AND REGULATORY LAW; AMERICAN ASSOCIATION FOR JUSTICE; NORTH CAROLINA JUSTICE CENTER; HUMANE SOCIETY OF THE UNITED STATES; PUBLIC JUSTICE, P.C.; FOOD & WATER WATCH; WATERKEEPER ALLIANCE, INC.; NORTH CAROLINA ENVIRONMENTAL JUSTICE NETWORK; RURAL EMPOWERMENT ASSOCIATION FOR COMMUNITY HELP; DR. LAWRENCE CAHOON; ELIZABETH CHRISTENSON; DR. BRETT DOHERTY; MIKE DOLAN FLISS; DR. JILL JOHNSTON; BOB MARTIN; DR. SARAH RHODES; DR. ANA MARIA RULE; DR. SACOBY WILSON; DR. COURTNEY WOODS, Amici Supporting Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. W. Earl Britt, Senior District Judge. (7:14-cv-00180-BR; 5:15-cv- 00013.BR) Argued: January 31, 2020 Decided: November 19, 2020 Before WILKINSON, AGEE and THACKER, Circuit Judges. Affirmed in part, vacated and remanded in part by published opinion. Judge Thacker wrote the opinion, in which Judge Wilkinson concurred. Judge Wilkinson wrote a concurring opinion. Judge Agee wrote an opinion concurring in part and dissenting in part. ARGUED: Stuart Alan Raphael, HUNTON ANDREW KURTH, LLP, Washington, D.C., for Appellant. Tillman J. Breckenridge, PIERCE BAINBRIDGE BECK PRICE & HECHT, LLP, Washington, D.C., for Appellee. ON BRIEF: Robert M. Tata, Washington, D.C., Trevor S. Cox, Kevin S. Elliker, David M. Parker, HUNTON ANDREWS KURTH LLP, Richmond, Virginia, for Appellant. Mona Lisa Wallace, John Hughes, WALLACE AND GRAHAM, P.A., Salisbury, North Carolina; Tanya Fridland, PIERCE BAINBRIDGE BECK PRICE & HECHT, LLP, Washington, D.C., for Appellees. Michael B. Kimberly, Washington, D.C., Timothy S. Bishop, Brett E. Legner, Jed Glickstein, Chicago, Illinois, Michael B. Kimberly, MAYER BROWN LLP, Washington, D.C.; Ellen Steen, Travis Cushman, AMERICAN FARM BUREAU FEDERATION, Washington, D.C.; Phillip Jacob Parker Jr., NORTH CAROLINA FARM 2 BUREAU FEDERATION, Raleigh, North Carolina; Michael C. Formica, NATIONAL PORK PRODUCERS COUNCIL, Washington, D.C., for Amici The American Farm Bureau Federation, National Pork Producers Council, North Carolina Farm Bureau Federation, and North Carolina Pork Council. Daryl L. Joseffer, Michael B. Schon, UNITED STATES CHAMBER LITIGATION CENTER, Washington, D.C., for Amicus Chamber of Commerce of the United States of America. Sean Marotta, HOGAN LOVELLS US LLP, Washington, D.C., for Amici Chamber of Commerce of the United States of America, North American Meat Institute, National Association of Manufacturers, Grocery Manufacturers Association, National Turkey Federation, and National Chicken Council. Matthew Nis Leerberg, Kip D. Nelson, Troy D. Shelton, FOX ROTHSCHILD LLP, Raleigh, North Carolina, for Amici Joey D. Carter, Joey Carter Farms, William R. Kinlaw, Kinlaw Farms, LLC, Paul Stanley, Pagle Corp., and Greenwood Livestock, LLC. Steven M. Virgil, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Amici Law Professors with Expertise in Tort and Regulatory Law. Elise Sanguinetti, President, Jeffrey R. White, AMERICAN ASSOCIATION FOR JUSTICE, Washington, D.C.; David Arbogast, ARBOGAST LAW, San Carlos, California, for Amicus American Association for Justice. Elizabeth Haddix, Mark Dorosin, JULIUS L. CHAMBERS CENTER FOR CIVIL RIGHTS, Carrboro, North Carolina, for Amici North Carolina Environmental Justice Network and the Rural Empowerment Association for Community Help. Emily P. Turner, NORTH CAROLINA JUSTICE CENTER, Raleigh, North Carolina; J. Jerome Hartzell, HARTZELL & WHITEMAN, LLP, Raleigh, North Carolina, for Amicus North Carolina Justice Center. Anna Frostic, Laura Fox, Peter Brandt, THE HUMANE SOCIETY OF THE UNITED STATES, Washington, D.C., for Amicus The Humane Society of the United States. Marianne Engelman-Lado, YALE SCHOOL OF FORESTRY & ENVIRONMENTAL STUDIES, New Haven, Connecticut; Peter Hans Lehner, Alexis Andiman, EARTHJUSTICE, New York, New York, for Amici Dr. Lawrence B. Cahoon, Elizabeth Christenson, Dr. Brett Doherty, Mike Dolan Fliss, Dr. Jill Johnston, Bob Martin, Dr. Sarah Rhodes, Dr. Ana María Rule, Dr. Sacoby Wilson, and Dr. Courtney Woods. Tarah Heinzen, FOOD & WATER WATCH, Washington, D.C., for Amicus Food & Water Watch. David S. Muraskin, Jessica L. Culpepper, Kellan Smith, PUBLIC JUSTICE, P.C., Washington, D.C., for Amici Public Justice and Food & Water Watch. Chandra T. Taylor, Blakely Hildebrand, Nick Jimenez, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for Amicus Waterkeeper Alliance. 3 THACKER, Circuit Judge: Murphy-Brown, LLC (“Appellant”) challenges a jury verdict against it awarding compensatory and punitive damages to neighbors of its hog production facilities. Those neighbors, residents of rural Bladen County, North Carolina, sought relief under state nuisance law from odors, pests, and noises they attribute to farming practices Appellant implemented at an industrial-scale hog feeding farm. Having heard evidence of those harms and Appellant’s role in creating them, a jury returned a verdict in favor of the neighbors, to the tune of $75,000 in compensatory damages per plaintiff, along with a total of $5 million in punitive damages, which was subsequently reduced to $2.5 million due to North Carolina’s punitive damages cap. Appellant asserts seven reasons why we should overturn the decision below and grant a new trial. For the reasons detailed below, we affirm the jury’s verdict as to liability for compensatory and punitive damages, but we vacate the award of punitive damages and remand for a rehearing on that issue based on our evidentiary standards. I. A. Appellant is a commercial hog producer, who contracted with third-party “grower” Kinlaw Farms LLC (“Kinlaw Farms”) to operate an industrial hog feeding facility in Bladen County, North Carolina. 1 Appellant is a single-member LLC of a wholly owned 1 Appellant is a vertically integrated hog producer, which means Appellant farms hogs on an industrial scale by controlling each stage of pork production from the raising and feeding of the livestock to slaughter and packaging for sale. Appellant operates in part (Continued) 4 subsidiary of Smithfield Foods, Inc. (“Smithfield”), which is in turn owned by WH Group Limited (“WH Group”), a publicly traded company based in Hong Kong. Industrial farming operators like Appellant require their contract growers like Kinlaw Farms to comply with specific policies. The controlling industrial farmer issues detailed mandates to its growers in order to ensure consistency across their various contract operations. Appellant imposes standard operating procedures for all of its contract growers. Specifically, Appellant (1) directs grower management procedures; (2) mandates design and construction of operations; (3) can require the use of technological enhancements; (4) can require capital investments; (5) dictates how many of its hogs are to be placed at a given operation; and (6) controls hog waste management systems. Joyce McKiver, Delois Lewis, Daphne McKoy, Alexandria McKoy, Antonio Kevin McKoy, Archie Wright, Jr., Tammy Lloyd, Deborah Johnson, Ethel Davis, and Priscilla Dunham (collectively, “Appellees”) are North Carolina residents who owned properties near Kinlaw Farms. Appellees are a subset of a number of plaintiffs (“Plaintiffs”) who sued Appellant for alleged nuisances associated with the hog operations at Kinlaw Farms. The operation at Kinlaw Farms annually maintained nearly 15,000 of Appellant’s hogs. These hogs generated approximately 153,000 pounds of feces and urine daily. Kinlaw Farms housed the hogs in hog sheds that used vents and fans to move fumes from the hogs to the outside of the building. By design, the hog waste in the sheds fell through by supplying livestock and feed to contractors known as “growers” who house and care for Appellant’s hogs for certain portions of the animals’ life cycle, subject to Appellant’s control. 5 slats in the flooring, where the waste was then stored in three open-air pits within view of Appellees’ homes. These pits or “lagoons” contained millions of gallons of hog waste. As part of its standard operating procedures for contract growers, Appellant wrote the policy dictating how Kinlaw Farms disposed of the waste from Appellant’s hogs. At Appellant’s direction, Kinlaw Farms used what is known as the lagoon-and-sprayfield method for hog waste disposal. Kinlaw Farms periodically drained waste from the lagoons and spread it across open “sprayfields” on the Kinlaw Farms property. Approximately eight million gallons of hog feces were sprayed in the air annually at Kinlaw Farms. Appellant was aware of the proximity of Kinlaw Farms to neighboring residences because Appellant’s corporate predecessor had sited and designed the facility, and Appellant routinely visited the Kinlaw Farms property for inspections. Notably, because of its operations’ proximity to surrounding properties, Appellant instructed its growers to refrain from applying the hog waste to sprayfields “out of respect for [their] neighbors” if the contractor was aware that neighbors planned to have guests over for weddings or cookouts. Despite this policy, spraying of hog waste in summer months occurred at Kinlaw Farms as regularly as three to five days a week for an average of six hours per day. Additionally, through its contractual arrangement, Appellant was solely responsible for the Kinlaw Farms trucking schedule and for the decision of where to site the facility’s entrance road that passed near Appellees’ properties. Trucks frequented Kinlaw Farms on a regular basis to deliver new hogs, take away live hogs, and pick up dead hogs. Appellant set Kinlaw Farm’s delivery and pickup schedules for trucks at an all-day, all-night pace. 6 As an example, on one night in 2016, at least 12 trucks passed through to the Kinlaw Farms property between midnight and six in the morning. At Appellant’s direction, hog carcasses pending pickup were stored in “dead boxes,” dumpsters placed in open fields on the Kinlaw Farms property. Hog carcasses would pile up and rot in these dumpsters in open fields until collection of the carcasses was scheduled. These dead boxes attracted dozens of buzzards and flies that would accumulate around the dead boxes and frequent Appellees’ neighboring properties. B. For decades predating the lawsuit at issue here, agricultural experts and lay media alike researched and reported environmental effects associated with industrial hog operations in Eastern North Carolina. Indeed, Appellant itself collected and stored hundreds of newspaper articles documenting neighbors’ complaints about lagoon-and- sprayfield industrial hog operations and was aware of scientific studies and state government documents reporting the effects of odor, including upper respiratory and gastrointestinal ailments, on neighbors of concentrated animal feeding operations like Kinlaw Farms. For years, Appellant defended its practices against critics in North Carolina communities and public offices, and routinely opposed regulations that would require lagoon-and-sprayfield operations to curtail their effects on neighbors. In particular, Appellant’s former director Don Butler admitted that Appellant was aware of Bladen County community complaints about unabated lagoon-and-sprayfield hog operations of the 7 kind Appellant prescribed to its growers -- specifically that individuals were complaining about “odor, flies, noise, trucks, [and] interference with their quality of life.” J.A. 7466. 2 Although there is no evidence of complaints made directly to Appellant about Kinlaw Farms specifically, Kinlaw Farms did receive complaints from one plaintiff in this suit and another neighbor, who also complained about Kinlaw Farms to the North Carolina Department of Environment and Natural Resources. The record demonstrates that all parties agreed Kinlaw Farms consistently followed Appellant’s policies, compliance which Appellant actively monitored. Yet before the recent nuisance suits, Appellant had neither monitored odor at any operation (including Kinlaw Farms), nor terminated a grower because of complaints about odor. C. Reacting to mounting community pressure, in 1997, North Carolina banned new lagoon-and-sprayfield hog operations. See N.C. Sess. Laws 1997–458. Existing farms including Kinlaw Farms were grandfathered in and not subjected to the ban, but the North Carolina legislature did bind the state’s Department of Agriculture to “develop a plan to phase out the use of . . . lagoons and sprayfields as primary methods of disposing of animal waste at swine farms.” See id. § 12.4(a). And in 1999, North Carolina’s governor announced an intention to end lagoon-and-sprayfield operations. The following year, Smithfield, Appellant’s parent company, signed an agreement with the Attorney General of North Carolina to fund research for replacement technologies 2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal. 8 and to implement technologies found to be feasible (the “AG Agreement”). In 2006, the scientific expert designated by the AG Agreement identified alternative abatement technologies but, applying the AG Agreement’s criteria, the designee did not deem those technologies economically feasible at that time for existing hog farms. This 2006 feasibility analysis did not consider Smithfield’s profits or ability to pay. Appellant’s growers were not expected to pay for waste management improvements on their own. Because of the extensive control Appellant maintained over its contract growers -- and the control in turn exerted over Appellant by Smithfield and its parent WH Group -- Appellant’s president explained it had the power to implement abatement technologies at its growers’ operations by prescribing those technologies and getting money from the parent companies to help pay for them. Due to the integrated nature of Appellant’s farming operations, company procedures would have Appellant receive funding from the parent companies for waste management improvements it might choose to implement. D. In 2013, Appellant and several of its contract growers, including Kinlaw Farms, were sued in North Carolina state court by neighbors of their hog operations, including Appellees. As Appellees explained, “after learning the full extent of [Appellant’s] control over the operations causing the nuisance and the growers’ powerlessness to address it,” the plaintiffs dismissed those state actions and refiled suit in federal court in the Eastern District of North Carolina in 2014, naming Appellant only. Appellees’ Br. 16. 9 The district court for the Eastern District of North Carolina coordinated 26 related cases filed by neighbors of Appellant’s various hog operations as part of a Master Case docket. 3 During the Master Case proceedings, the district court issued a number of decisions, including denying Appellant’s motion for judgment on the pleadings based on failure to join its contract farmers including Kinlaw Farms as necessary parties. The court also denied Appellant’s motion to dismiss claims for noneconomic damages and motion for partial summary judgment on the plaintiffs’ punitive and annoyance damage claims. On the other hand, the court granted the plaintiffs’ motion for partial summary judgment on Appellant’s statute of limitations defense. In the fall of 2017, the district court ordered trials to move forward from the Master Case docket, with Appellees’ case being first in line. During the trial, the district court denied Appellant’s motion to bifurcate the punitive damages phase from the liability phase of the trial and also denied Appellant’s evidentiary objections as to proof of profits, executive compensation of its parent companies, and certain expert opinions. At the close of all evidence, the district court denied Appellant’s motion for judgment as a matter of law as to (i) the sufficiency of evidence to support punitive damages; (ii) vicarious liability; 3 In all, this opinion refers to three sets of plaintiffs involved in suits against Appellant. Complainants in the Master Case Docket cases were neighbors of Appellant’s various hog operations. Among this broadest set of neighbor plaintiffs were our Plaintiffs, neighbors of Kinlaw Farms whose claims related particularly to Appellant’s operations there. Appellees are a subset of the Plaintiffs who originally brought suit against Appellant over the Kinlaw Farms operation. 10 (iii) the statute of limitations; and (iv) evidence supporting fear of future injuries. And, before submitting the case to the jury, the district court rejected Appellant’s proposed jury instructions relating to the (i) statute of limitations; (ii) scope of available compensatory damages; and (iii) vicarious liability for contractors. In Spring 2018, the jury returned a verdict awarding $75,000 in compensatory damages to each of the ten Appellees and also awarding $5 million in punitive damages. The district court then applied North Carolina’s punitive damages cap, reducing the total punitive award to $2.5 million. See N.C. Gen. Stat. § 1D-25(b) (limiting per-plaintiff punitive damages to the greater of $250,000 or treble compensatory damages); Rhyne v. K- Mart Corp., 594 S.E.2d 1, 5 (N.C. 2004) (explaining N.C. Gen. Stat. § 1D-25 “applies to limit recovery of punitive damages per each plaintiff”). Appellant timely appealed, challenging each of the rulings noted above. Following the judgment, Appellant terminated its relationship with Kinlaw Farms and withdrew its hogs from that facility, alleging in the termination letter that Kinlaw Farms failed to “comply with standard operating procedures.” J.A. 9593 (quoting May 4, 2018 Kinlaw Letter at 2, McKiver v. Murphy-Brown, LLC, No. 14-cv-00180-BR (E.D.N.C. Sept. 28, 2018), ECF No. 324-2). On appeal, Appellant asserts, “[t]he jury’s nuisance finding effectively required that Kinlaw Farm cease operations until any nuisance is abated.” Appellant’s Br. 12. II. Appellant raises seven purported errors on appeal, each of which Appellant contends will require a new trial. We address each in turn. 11 A. Necessary and Indispensable Party First, Appellant argues that Kinlaw Farms was a necessary and indispensable party to this suit, and thus, should have been joined pursuant to Federal Rule of Civil Procedure 19. Appellant presented this argument to the district court in both a motion pursuant to Federal Rule of Civil Procedure 12(c) and in a post-trial motion. The district court rejected Appellant’s contentions on each occasion. 1. We review a district court’s Rule 19 rulings for an abuse of discretion. Nat’l Union Fire Ins. Co. of Pittsburgh v. Rite Aid of S.C., Inc., 210 F.3d 246, 250 (4th Cir. 2000) (citation omitted). Generally, “[t]he inquiry contemplated by Rule 19 is a practical one,” properly “addressed to the sound discretion of the trial court.” Coastal Modular Corp. v. Laminators, Inc., 635 F.2d 1102, 1108 (4th Cir. 1980) (citations omitted). 2. Rule 19 sets up “a two-step inquiry.” Owens-Illinois, Inc., v. Meade, 186 F.3d 435, 440 (4th Cir. 1999) (citation omitted). We ask “first whether the nonjoined party is necessary under Rule 19(a) and then whether the party is indispensable under Rule 19(b).” Gunvor SA v. Kayablian, 948 F.3d 214, 218 (4th Cir. 2020) (citation omitted). Pursuant to Rule 19(a), a party is necessary if (A) in that person’s absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of an action and is so situated that disposing of the action in the person’s absence may: (i) as a practical matter 12 impair or impede the person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. Fed. R. Civ. P. 19(a). A necessary party should be ordered into the action. See Owens- Illinois, Inc., 186 F.3d at 440. But “[w]hen a party cannot be joined because its joinder destroys diversity, the court must determine whether the proceeding can continue in its absence or whether it is indispensable pursuant to Rule 19(b) and the action must be dismissed.” Id. (citation omitted). Rule 19(b) provides guidance on the identification of an indispensable party: “If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” Fed. R. Civ. P. 19(b). In this regard, we are given the following nonexclusive factors to consider: (1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties; (2) the extent to which any prejudice could be lessened or avoided by: (A) protective provisions in the judgment; (B) shaping the relief; or (C) other measures; (3) whether a judgment rendered in the person’s absence would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder. Id. “Courts are loath to dismiss cases based on nonjoinder of a party, so dismissal will be ordered only when the resulting defect cannot be remedied and prejudice or inefficiency will certainly result.” Owens-Illinois, Inc., 186 F.3d at 441 (citations omitted). 13 Neither prong of Rule 19 is to be applied merely as a “procedural formula.” Home Buyers Warranty Corp. v. Hanna, 750 F.3d 427, 433 (4th Cir. 2014) (quoting Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 119 n.16 (1968)). To the contrary, the “[d]ecisions must be made pragmatically, in the context of the substance of each case, and courts must take into account the possible prejudice to all parties, including those not before it.” Id. (citations and internal quotation marks omitted). 3. Applying Rule 19(a), there is nothing before us to suggest that the district court could not have “accord[ed] complete relief among existing parties” in this suit without the addition of Kinlaw Farms, and Appellant does not so claim. Fed. R. Civ. P. 19(a)(1)(A). Nor does Appellant argue that it would be subject to multiple or inconsistent judgments. Fed. R. Civ. P. 19(a)(1)(B)(ii). Instead, Appellant argues “Kinlaw Farms has significant pecuniary and contractual interests threatened by this litigation.” Appellant’s Br. 55. This argument is aimed at the second prong of Rule 19(a)’s test -- whether a third party “claims an interest relating to the subject of an action” whose ability to protect that interest “as a practical matter” will be impaired or impeded if excluded from the existing suit. Fed. R. Civ. P. 19(a)(1)(B)(i). This aspect of the test “directs us to consider a non-joined party’s ability to protect its own interests.” Home Buyers Warranty Corp., 750 F.3d at 433. Appellant insists that Kinlaw Farms needed to be made a party to this suit in order to protect its own interests. Yet Kinlaw Farms did not seek to join the suit or otherwise “claim[ ] an interest relating to the subject of an action” before the district court, and 14 Appellant did not assert a claim against Kinlaw Farms to bring the grower into the suit. Fed. R. Civ. P. 19(a)(1)(B)(i). Unlike the instant case, our Rule 19(a) decisions Appellant cites each involve a situation where the contracts or obligations of the “necessary” party were being interpreted or were otherwise directly at issue. See Home Buyers Warranty Corp., 750 F.3d at 434 (determining third parties “actively contesting their liability in state court” under a contract and entitled to insurance by the defendants for construction defects like those alleged had “a natural interest in any adjudication of the terms of [the] contract”); Yashenko v. Harrah’s NC Casino Co., 446 F.3d 541, 552–53 (4th Cir. 2006) (deeming necessary and indispensable the third party whose preferential hiring policy dictated the defendant casino operator’s conduct, where the court would be deciding the legality of the policy); Nat’l Union Fire Ins. Co. v. Rite Aid of S.C., Inc., 210 F.3d 246, 251 (4th Cir. 2000) (indicating that the court’s decision would “necessarily require it to interpret the notice provisions of the policy and other agreements” between the plaintiff and the absent party). “[E]ven if [an absent party] is alleged to have played a central role” in the action at issue, “and even if resolution of the action will require the court to evaluate the absent party’s conduct,” that party “in many cases . . . will not have interests that warrant protection under Rule 19(a)(1)(B)(i).” Ward v. Apple Inc., 791 F.3d 1041, 1050 (9th Cir. 2015). The interest in question should “be more than a financial stake, and more than speculation about a future event.” Id. at 1051 (internal quotation marks omitted). Here, the suit’s practical consequence for the third party, Kinlaw Farms, was Appellant’s termination of its grower relationship. But Appellant’s post-verdict 15 termination of Kinlaw Farms was not a necessary or inevitable consequence of anything resolved in this suit. Though no doubt financially difficult for Kinlaw Farms, that termination was not compelled by the court’s decision and cannot control Appellees’ case. Appellant’s termination letter to Kinlaw Farms suggested that Kinlaw Farms failed to “comply with standard operating procedures.” J.A. 9593 (quoting May 4, 2018 Kinlaw Letter at 2, McKiver v. Murphy-Brown, LLC, No. 14-cv-00180-BR (E.D.N.C. Sept. 28, 2018), ECF No. 324-2). But this is the exact opposite of what Appellant (and Appellees) argued at trial, where both parties had contended that Kinlaw Farms followed Appellant’s policies to the letter. Nothing found by the jury in this case or mandated by the judgment required Appellant’s termination of its relationship with Kinlaw Farms after the litigation was over. The jury’s decision left Appellant free to continue its grower relationship with Kinlaw Farms in a manner that respects the property rights of its neighbors if it so chose. Appellant’s assessment of the costs and benefits of doing so -- and its business decision based thereon -- cannot retroactively make Kinlaw Farms a necessary party. And even assuming Kinlaw Farms was a necessary party, dismissal of a case is “a drastic remedy that should be employed only sparingly.” Gunvor SA, 948 F.3d at 219 (quoting Home Buyers Warranty Corp., 750 F.3d at 433). Owing deference to the district court’s determination under the abuse of discretion standard, we see no reason to hold that Kinlaw Farms is a necessary party, let alone an indispensable one whose absence warrants dismissal. Appellant’s arguments that Kinlaw Farms is indispensable are cursory and do not creditably address any of the Rule 19(b) factors, other than pointing out that Plaintiffs 16 could have brought this suit against Kinlaw Farms and Appellant in state court. There is nothing to indicate that the judgment rendered is not adequate or that Kinlaw Farms’s absence unfairly prejudices either Kinlaw Farms or Appellant. We therefore affirm the district court’s judgment as to Rule 19. B. Statute of Limitations Next, Appellant contends the district court erred in rejecting its statute of limitations defense. Appellant contended that Plaintiffs’ claims should have been barred by a three- year statute of limitations applying to actions involving a “continuing” nuisance. In response, Plaintiffs moved for partial summary judgment on Appellant’s statute of limitations defense, asserting that this case involves a “recurrent” nuisance, for which the three-year limit acts only to constrain the amount of damages available, not to completely bar the claim. The district court partially denied Plaintiffs’ summary judgment motion with regard to certain other affirmative defenses but held “as a matter of law” with regard to the statute of limitations defense that the alleged nuisance was recurring. J.A. 3473. 4 Appellant alleges this was error. Appellant further claims the court erred in refusing to give an instruction for the jury to decide whether the nuisance was continuing or recurring. 4 The denial of Plaintiffs’ summary judgment motion with regard to the other affirmative defenses is not at issue in this appeal. 17 1. We review a district court’s summary judgment decision de novo, Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018) (citation omitted), and the court’s refusal to grant a jury instruction for abuse of discretion, United States v. Savage, 885 F.3d 212, 222 (4th Cir. 2018). A district court’s refusal to provide a jury instruction is reversible only if the defendant’s requested instruction “(1) was correct; (2) was not substantially covered by the court’s charge to the jury; and (3) dealt with some point in the trial so important, that failure to give the requested instruction seriously impaired the defendant’s ability to conduct his defense.” Savage, 885 F.3d at 223 (quoting United States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995)). 2. North Carolina law applies a three-year statute of limitations for suits based on “trespass upon real property,” and this standard applies equally to nuisance actions. N.C. Gen. Stat. Ann. § 1-52(3); Wilson v. McLeod Oil Co., 398 S.E.2d 586, 596 (N.C. 1990). “When a trespass is a continuing one,” the suit must be “commenced within three years from the original trespass, and not thereafter.” N.C. Gen. Stat. Ann. § 1-52(3). A “continuing” nuisance (involving a single event causing ongoing damage) is materially distinct from a “recurrent” nuisance (involving repeated injuries). See Wilson, 398 S.E.2d at 596. The North Carolina Supreme Court in Wilson v. McLeod Oil Co., Inc., 398 S.E.2d 586, 595 (N.C. 1990), made clear that the distinction between a continuing trespass and a recurrent one hinges on whether there has been a completed act. The Wilson court 18 referenced a previous case in which it had rejected a statute of limitations defense for repeated flooding: “Suppose [the defendant] had lamed the plaintiff’s horse more than three years ago, and he had continued lame ever since; the action would be barred. So, as he first injured the plaintiff’s land more than three years age, and it has continued injured ever since, the action is barred.” [quoting the defendant]. The fallacy [in this premise] is in not drawing the distinction between a single act of injury and continuous acts. In our case, he flooded the land more than three years ago, it is true; and for that the action is barred; but he has also continued to flood it anew every day within three years, and for that the action lies. Id. (quoting Spilman v. Roanoke Nav. Co., 74 N.C. 675, 678 (1876) (emphasis in original)). Noting this, the Wilson court refused to apply the statute of limitations to bar a suit where plaintiffs complained of ongoing seepage of gasoline from a neighboring property. See id. at 596. Because the invasion of the plaintiffs’ land stemmed from an ongoing leak, the North Carolina Supreme Court concluded that it was a renewing or recurrent injury and not complete. See id. Though damages were to be limited to the previous three-year period, the court did not bar the plaintiffs’ nuisance suit from going forward even though there was evidence to demonstrate that the plaintiffs knew of gasoline contamination well before the three-year mark. See id. Appellant itself cites Wilson in attempt to support its defense. However, Appellant fails to apply the case’s analysis to the facts at hand. The harm claimed here is the loss of use and enjoyment of property caused by repeated invasion by odor, noise, and pests. Appellant argues that statements by Appellees referring to these invasions as constant 19 raised a material dispute of fact for the jury to decide whether the nuisance was continuing. See, e.g., Appellant’s Br. 53 (citing one Appellee’s statement that “there’s not a day we don’t have trouble with buzzards” (quoting J.A. 7425), another Appellee’s testimony that “the odor was ‘always annoying’ and that she heard ‘hogs squealing all the time’” (quoting J.A. 7754–55), and another Appellee’s statement “that traffic annoyed her ‘all the time, day and night’” (quoting J.A. 7917)). In response, Appellees point out that interpreting these statements as though there was literally unending odor, truck noise, and pests is unreasonable. We agree with Appellees on this point. Moreover, even at that most extreme, Appellees’ cited harms would be no less constant than the gas seepage in Wilson, claims which were spared from the three-year statute of limitations due to their recurrent nature. As the North Carolina Supreme Court there explained, “[c]ontinuous injuries caused by the maintenance of a nuisance are barred only by the running of the statute against recurrent trespasses . . . .” Wilson, 398 S.E.2d at 596 (emphasis supplied) (quoting Anderson v. Waynesville, 164 S.E. 583, 587 (N.C. 1937)). In this regard, it is important to note that Appellees did not rest their case on establishing Kinlaw Farms constituted a nuisance per se. That is -- the nuisance alleged was not simply the years-ago construction of a lagoon-and-sprayfield hog operation -- but rather the ongoing maintenance of conditions that in fact caused harm. Put in the simple terms of the Wilson court, the question before us is whether the injurious act is completed or ongoing. See Wilson, 398 S.E.2d at 595 (quoting Spilman, 74 N.C. at 678). That is, do the harms flow from something done in the past as a single, complete act or do the harms constitute a renewed, avoidable violation each time they 20 occur? Here, maintenance of odiferous, noisy, and pest-ridden farm operations resulted in repeated -- i.e., recurrent -- invasions of Appellees’ properties. The nuisance was not the solitary act of building a lagoon-and-sprayfield hog farm in the past but was instead the practical operation of that farm in a manner inconsistent with its neighbors’ use and enjoyment of their own properties. The district court’s decision as to the applicable statute of limitations was therefore not legal error and refusing to give the inapplicable jury instruction on continuing nuisances was not an abuse of discretion. C. Private Nuisance Damages Appellant’s third argument in this appeal is that North Carolina private nuisance law bars recovery of compensatory damages of any kind, other than damages for reduction in the harmed properties’ fair market or rental value. Specifically, Appellant points to a 2017 amendment to North Carolina’s Right to Farm Act (the “2017 RTFA amendment”) enacted three years after the filing of the lawsuit in this case. The 2017 RTFA amendment limited compensatory damages in nuisance suits to the reduction in fair market value caused by the nuisance (for permanent nuisances) and to the diminution in fair rental value (for temporary nuisances). See N.C. Sess. Laws 2017-11, codified at N.C. Gen. Stat. § 106- 702. Appellant asserts that the amendment merely “clarified” this limitation on the available forms of compensatory damages in North Carolina nuisance law. Appellant’s Br. 44. Because Appellees stipulated they were not seeking damages for property or rental value losses and focused only on loss of use and enjoyment of their property, the parties 21 do not disagree that this suit if filed today would likely be barred by the 2017 RFTA amendment. But the question before us is whether the 2017 RTFA amendment’s limitation of damages actually changed the state’s law or simply clarified a preexisting principle. If the former, the district court did not err; if the latter, Appellant’s argument holds water. At summary judgment, the district court concluded that the issue of annoyance and discomfort damages should go to the jury, citing longstanding North Carolina case law allowing such recovery in nuisance suits, including compensation for “the inconvenience, discomfiture, and unpleasantness sustained.” J.A. 3476 (quoting Thomason v. Seaboard Air Line Ry., 55 S.E. 198, 204 (N.C. 1906)). In the face of that decision, Appellant still sought a jury instruction that North Carolina plaintiffs “may not recover damages for physical discomfort or annoyance.” J.A. 5373. The district court refused to give this instruction. 1. We review a district court’s summary judgment decision de novo, Woods, 888 F.3d at 691, and the refusal of a jury instruction for an abuse of discretion, Savage, 885 F.3d at 222. Both federal and North Carolina courts maintain a longstanding presumption against retroactive application of legislation. See Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994); Vanderbilt v. Atl. Coast Line R.R. Co., 125 S.E. 387, 391 (N.C. 1924). Indeed, “the presumption is very strong that a statute was not meant to act retrospectively, and it ought never to receive such a construction if it is susceptible of any other.” Vanderbilt, 125 S.E. at 391 (quoting U.S. Fid. & Guar. Co. v. United States, 209 U.S. 306, 314 (1908)). 22 We must not give a statute a retroactive construction “unless the words used are so clear, strong and imperative that no other meaning can be annexed to them or unless the intention of the Legislature cannot be otherwise satisfied.” Id. (quoting U.S. Fid. & Guar. Co., 209 U.S. at 314). In North Carolina, “[t]he primary goal of statutory construction is to effectuate the purpose of the legislature in enacting the statute.” State v. Curtis, 817 S.E.2d 187, 189 (N.C. 2018) (internal quotation marks omitted). “The intent of the General Assembly may be found first from the plain language of the statute, then from the legislative history, the spirit of the act, and what the act seeks to accomplish.” Midrex Techs., Inc. v. N.C. Dep’t of Revenue, 794 S.E.2d 785, 792 (N.C. 2016) (quoting Lenox, Inc. v. Tolson, 548 S.E.2d 513, 517 (N.C. 2001)). And of course, “[a] statute will not be construed to have retroactive effect unless that intent is clearly expressed or arises by necessary implication from its terms.” In re Mitchell’s Will, 203 S.E.2d 48, 50 (N.C. 1974) (citations omitted). Case law is thus very clear that we should look for clear signs of intentional and unavoidable retroactive application if a statute is indeed to have that effect. 2. Turning to the statute’s text, the 2017 RTFA amendment, enacted as HB 467 on May 11, 2017, includes the following effective date language: “This act is effective when it becomes law and applies to causes of action commenced or brought on or after that date.” N.C. Sess. Laws 2017-11, codified at N.C. Gen. Stat. § 106-702. Appellees argue that our inquiry should start and end with this provision inasmuch as they assert this language speaks clearly about which causes of action fall under the amended law and no other part 23 of the statute provides such a “clear, strong and imperative” message. Vanderbilt, 125 S.E. at 391 (quoting U.S. Fid. & Guar. Co., 209 U.S. at 314). Appellant, for its part, points to the 2017 RTFA amendment’s title: “An Act to Clarify the Remedies Available in Private Nuisance Actions Against Agricultural and Forestry Operations.” N.C. Sess. Laws. 2017-11. This title, Appellant asserts, indicates that the North Carolina General Assembly only intended the law to “clarify” existing law rather than change anything substantive about the law. According to Appellant, this distinction matters because North Carolina law provides, “[a] clarifying amendment, unlike an altering amendment, is one that does not change the substance of the law but instead gives further insight into the way in which the legislature intended the law to apply from its original enactment.” Ray v. N.C. Dept. of Transp., 727 S.E.2d 675, 681 (N.C. 2012) (citation omitted). If the 2017 RFTA amendment only clarified “the way in which the legislature intended the law” to originally apply, the amendment would be stating the law as it applied at the time of the pending suit as well as how it will apply going forward. Id. (“[I]n addition to applying to all cases brought after their effective dates, [clarifying] amendments apply to all cases pending before the courts when the amendment is adopted, regardless of whether the underlying claim arose before or after the effective date of the amendment.” (citations omitted)). Evaluating each of these arguments, we note -- as do Appellees -- that the 2017 RTFA amendment expressly states it will apply to causes of action going forward. See N.C. Sess. Laws 2017-11. And, apart from the amendment’s title, no provision lends itself to a view that the legislature was merely “clarifying” North Carolina law on damages. 24 While we cannot ignore the act’s title, it does not control as compared to the operative text of the statute. See United States v. Capers, 61 F.3d 1100, 1110 (4th Cir. 1995) (explaining that the drafters’ characterization of an enactment as clarifying “cannot be accepted as conclusive, because that would enable [them] to make substantive changes in the guise of ‘clarification’” (internal quotation marks omitted)). Nevertheless, Appellant points to Ray v. North Carolina Department of Transportation, 727 S.E.2d 675, 682 (N.C. 2012), which specifies that a prospective effective date does not itself determine whether a law is clarifying or altering. In Ray, the court held that the amendment relevant there was meant to clarify “the General Assembly’s original intent” regarding claims created “when the legislature enacted the S[tate] T[ort] C[laims] A[ct].” Id. There, the court explained, “[g]iven that all statutes have [ ] effective dates, an effective date standing alone, is insufficient information” for the court to determine whether an enactment is clarifying or substantive. Id. But if the 2017 RTFA amendment is a “clarifying” one -- what precisely is it clarifying? Before the 2017 amendment, North Carolina’s RTFA codified the “coming- to-the-nuisance” defense, thereby limiting who could bring nuisance claims. But before 2017, the law did not contain any provision as to the damages available for those claims. This situation poses a stark contrast to Ray and the examples it contains -- situations where a statute “initially fails expressly to address a particular point” related to what the statute originally set out or created. See Ray, 727 S.E.2d at 682 (suit at issue was brought under the State Tort Claims Act, which originally “did not address the application of the public duty doctrine to claims made under it” (emphasis supplied)); Ferrell v. Dep’t of Transp., 25 435 S.E.2d 309, 311 (N.C. 1993) (law empowering department to reconvey property did not specify at what price). By contrast, here, the General Assembly added a new section to the RTFA expressly limiting the damages available in private common law actions for nuisance. The RFTA never previously purported to do anything of the sort. For the “clarifying” principle to apply here, we would need to conclude that, through the original RFTA and its previous amendments, the General Assembly intended -- but never saw fit to mention -- that the law revoked a long-recognized measure of recovery in North Carolina nuisance suits, being the loss of use and enjoyment of one’s property beyond mere property value. See, e.g., Hanna v. Brady, 327 S.E.2d 22, 25 (N.C. Ct. App. 1985) (explaining the availability of “physical pain, annoyance, stress, deprivation of the use and comforts of one’s home” as damages “left to the sound judgment and discretion of the trier of fact”). In Ray, the court concluded, “[b]ecause the legislature left essentially all [the state’s] pre-amendment cases intact,” the amendment did not constitute “a complete change in the law but instead only an explanation of the limited role of the public duty doctrine” to suits brought pursuant to the State Tort Claims Act. 727 S.E.2d at 683. In the case of the 2017 RTFA amendment, however, stripping all but property value losses from traditional nuisance suits did violence to North Carolina precedent. While it is true that the parties here are able to cite to conflicting authorities, it is beyond debate that North Carolina case law dating back over 100 years includes recognition of loss of use and enjoyment from 26 annoyance and discomfort, as well as other forms of damages now barred by the 2017 RTFA amendment. 5 Thus, the 2017 RTFA amendment represents a substantive, forward-looking change in the law. This is supported by the legislative history and statements about the law’s intended effect. Even focusing on Appellant’s substantive-versus-clarifying test, we have nothing from which to conclude the 2017 RFTA amendments should apply retroactively. In contrast, we have a multitude of backdrop principles guiding us firmly away from that conclusion. For one thing, the implications for vested rights -- and therefore the doctrine of constitutional avoidance -- support rejection of retroactivity here. Both the federal and North Carolina constitutions protect vested rights. See Landgraf, 511 U.S. at 266 (noting the Fifth Amendment’s role in protecting vested rights); Fogleman v. D & J Equip. Rental, Inc., 431 S.E.2d 849, 852 (N.C. 1993) (refusing retroactive application of an amended statute where it “deprived appellants of vested rights and, thus, was unconstitutionally retroactive”). Even where there are two reasonable constructions of a statute’s language, we are to avoid adopting the unconstitutional reading. See United States v. Mills, 850 F.3d 693, 699 (4th Cir. 2017). 5 See BSK Enters., Inc. v. Beroth Oil Co., 783 S.E.2d 236, 249–50 (N.C. Ct. App. 2016); Broadbent v. Allison, 626 S.E.2d 758, 762 (N.C. Ct. App. 2006); Evans v. Lochmere Recreation Club, Inc., 627 S.E.2d 340, 343 (N.C. Ct. App. 2006); Whiteside Estates, Inc. v. Highlands Cove, LLC, 553 S.E.2d 431, 440 (N.C. Ct. App. 2001); Hanna v. Brady, 327 S.E.2d 22, 25 (N.C. Ct. App. 1985); Barrier v. Troutman, 55 S.E.2d 923, 926 (N.C. 1949); Oates v. Algodon Mfg. Co., 8 S.E.2d 605, 606 (N.C. 1940); Thomason v. Seaboard Air Line Ry., 55 S.E. 198, 204 (N.C. 1906). 27 In North Carolina, the right to compensatory damages “vest in a plaintiff upon injury.” Rhyne v. K-Mart Corp., 594 S.E.2d 1, 12 (N.C. 2004) (citation omitted). Appellant’s only response to this point is to say that a right to annoyance damages did not exist at the time of injury. But, as explained, the weight of North Carolina case law and the district court’s determination on the basis of that law are to the contrary. And, “annoyance” damages aside, the 2017 RTFA amendment limited available damages to only reduction in market value (for permanent nuisances) and rental value (for temporary nuisances). See N.C. Sess. Laws 2017-11, § 1; codified at N.C. Gen. Stat § 106-702(a). This without question would strip plaintiffs in pending suits of vested rights to damages noted even in Appellant’s authorities, such as “reasonable costs of replacement or repair [and] restoration of the property to its prenuisance condition; and other added damages for incidental losses.” Rudd v. Electrolux Corp., 982 F. Supp. 355, 372 (M.D.N.C. 1997). Further, policy and justice concerns weigh against allowing retroactive amendments to alter the damages available in pending suits. A decision in Appellant’s favor as to the effect of the 2017 RTFA amendment would reward powerful defendants who, faced with a possible judgment against them, could escape responsibility by raising a specter of doubt about something the state’s courts have long made available. North Carolina’s legislators were worried about the constitutionality and fairness of the RTFA’s amendment, and these concerns motivated the change from the original language -- specifying it would apply to pending cases -- to the current version applying only to claims filed on or after the effective date. Motivated by all of the above concerns, we have previously declined to apply responsive enactments and we do so here. See Ward v. Dixie Nat’l Life Ins. Co., 595 F.3d 28 164, 171–72 (4th Cir. 2010) (refusing to retroactively apply an amendment where, on first appeal, we ruled for the plaintiffs and the state legislature then adopted a definition purporting to affect pending cases that “was, in effect, that advocated by defendants and rejected by this court”). We therefore affirm the district court with regard to the availability of compensatory damages beyond property or rental value in this case. D. Expert Testimony Next, Appellant asserts the district court erred when it approved the testimony of Appellees’ expert, Dr. Shane Rogers, but excluded certain opinions of Appellant’s own expert, Dr. Pamela Dalton. 1. We review a district court’s decisions on the admissibility of expert testimony for abuse of discretion. United States v. Campbell, 963 F.3d 309, 313 (4th Cir. 2020). Rule 702 of the Federal Rules of Evidence provides that a qualified expert witness “may testify in the form of an opinion or otherwise if . . . [his or her] scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a). The expert’s testimony must be “based on sufficient facts or data” and be “the product of reliable principles and methods.” Fed. R. Evid. 702(b), (c). And “the expert [must] reliably appl[y] the principles and methods to the facts of the case.” Fed. R. Evid. 702(d). 29 “Implicit in the text of Rule 702 is a district court’s gatekeeping responsibility to ‘ensur[e] that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.’” Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th Cir.) (alteration in original) (emphases in original) (quoting Daubert v. Merrell Dow Pharms., 509 U.S. 579, 597 (1993)). “With respect to reliability, the district court must ensure that the proffered expert opinion is based on scientific, technical, or other specialized knowledge and not on belief or speculation, and inferences must be derived using scientific or other valid methods.” Id. (internal quotation marks omitted) (emphasis omitted). “Relevant evidence, of course, is evidence that helps ‘the trier of fact to understand the evidence or to determine a fact in issue.’” Id. (quoting Daubert, 509 U.S. at 591). As the Supreme Court has repeatedly explained, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), offers district courts several guidepost factors that the court “may consider” in assessing an expert’s evidentiary reliability to the extent that the factors are relevant to the specific facts of the case at hand. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (emphasis in original). These factors include “[w]hether a theory or technique . . . can be (and has been) tested”; whether the theory or technique “has been subjected to peer review and publication”; whether a given technique has a “high known or potential rate of error and whether there are standards controlling the technique’s operation”; and “[w]hether the theory or technique enjoys general acceptance within a relevant scientific community.” Id. at 149–50 (internal quotation marks omitted). These factors “may or may not be pertinent in assessing 30 reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his [or her] testimony.” Id. at 150 (internal quotation marks omitted). 2. a. Dr. Rogers i. Appellees called upon Dr. Shane Rogers to testify that a DNA marker of hog feces could be found on the homes neighboring Kinlaw Farms, as support for the idea that hog waste chemicals could and did reach their properties. The district court qualified Dr. Rogers as “an expert in environmental engineering, . . . animal waste management engineering and technology, and microbiology.” J.A. 6185. The district court was informed that Dr. Rogers earned a Ph.D with honors in environmental engineering, has held professorships in civil and environmental engineering for a decade, and previously served as an environmental engineer at the United States Environmental Protection Agency. His specialty was described as “the fate and transport of fecal pathogens.” Id. at 6184. According to Appellant, Dr. Rogers offered unreliable opinions both in his report and at trial. As support, Appellant cites purported errors in sample collecting and limited training and experience of Dr. Rogers’s teams. Appellant further contends that Dr. Rogers utilized a DNA indicator called Pig2bac to show the presence of fecal material “as a proxy for odor” leaving the farm, even though he conceded that he is not an expert on how people perceive odor and that this use of Pig2bac had not been peer-reviewed. Appellant’s Br. 35. 31 Appellant argues the district court did not discharge its Daubert “gatekeeping” responsibility in admitting the testimony of Dr. Rogers. In this regard, Appellant asserts that the court failed to “make any reliability findings” and did not use “Daubert’s guideposts or any other factors to assess the reliability of [Rogers]’s testimony.” Appellant’s Br. 34 (quoting Nease, 848 F.3d at 230). Appellant further complains that its request for a Daubert hearing was refused. ii. As to the reliability of Dr. Rogers’s testimony, the errors Appellant alleges as to Dr. Rogers’s sample collecting and labeling were explained to the district court in briefing as resulting from Appellant’s last minute changes to the sampling location. Appellees informed the court that these issues were fully considered in the report’s methodology. And, while it is true that Dr. Rogers’s Pig2bac method itself has not been peer-reviewed, this is only one of the several factors -- that do not “necessarily nor exclusively” apply in every case. Kumho Tire Co. Ltd., 526 U.S. at 141 (citing the “flexible” nature of the reliability test (quoting Daubert, 509 U.S. at 594)). “[A] trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony’s reliability.” Id. Here, though Dr. Rogers’s work itself had not been peer-reviewed, Pig2bac, upon which the report was based, has been used globally to demonstrate the traceability of swine fecal wastes and was applied in this case using protocols for sampling and analysis by a team of four Ph.D. holders, each with experience with field work, animal operations, and environmental health and engineering. Moreover, Appellant was permitted to put on a 32 counter-expert, Dr. Jennifer L. Clancy, who critiqued Dr. Rogers’s report but who also admitted that Dr. Rogers’s method “was acceptable,” at least “in some cases.” Dep. of Jennifer Lee Clancy, Ph.D. at 4, McKiver v. Murphy-Brown, LLC, No. 14-cv-00180-BR (E.D.N.C. Sept. 28, 2018), ECF No. 124-1. Finally, any contention that Dr. Rogers was not qualified was met with evidence that his area of expertise in waste management qualified him to opine on odor traceability, waste management measures, and their testability. See Expert Report of Dr. Shane Rogers at 4, McKiver v. Murphy-Brown, LLC, No. 14-cv-00180-BR (E.D.N.C. Sept. 28, 2018), ECF No. 81-2 (citing Dr. Rogers’s work with livestock agriculture and related emissions and “development of good management practices to decrease potential exposures of manure pollutants to neighbors and downwind produce growing areas”). Although Dr. Rogers is not (and never claimed to be) an expert on the ability of humans to perceive odor, that is beside the point. Appellees called Dr. Rogers as an expert on tracing how the compounds creating odor travel in agricultural settings. Taking all of this information as a whole, we conclude that the district court did not abuse its discretion in determining that Dr. Rogers’s opinions were both reliable and relevant to the issues in this case. iii. Further, as to Appellant’s grievance that the district court ruled on the admissibility of the testimony of Dr. Rogers without first affording Appellant a hearing, this argument fails. 33 A trial court has “considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Kumho Tire Co., Ltd., 526 U.S. at 152 (emphasis supplied). As the Supreme Court has made clear, Daubert’s factors “do not constitute a definitive checklist or test.” Id. at 150 (emphasis in original) (internal quotation marks omitted). “[T]he gatekeeping inquiry must be tied to the facts of a particular case.” Id. (internal quotation marks omitted). Importantly, “[t]he trial court must have the same kind of latitude in deciding how to test an expert’s reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert’s relevant testimony is reliable.” Id. at 152 (emphasis in original). As the Supreme Court has explained, the district court here was entitled to rely on the parties’ materials without requiring further submissions or a Daubert hearing. The district court’s ruling from the bench reflected that it considered the parties’ arguments and briefing as to Dr. Rogers’s qualifications, area of expertise, and the relevance and reliability of his report. We conclude that the district court had sufficient information before it -- as detailed above -- such that refusing to grant a Daubert hearing was not an abuse of discretion. b. Dr. Dalton i. According to Appellant, it was prejudiced by the district court’s “allowing only Plaintiffs’ expert to testify on the central issue.” Appellant’s Br. 33 (emphasis in original). 34 While Dr. Rogers was permitted to testify, Appellant argues that its own odor expert, Dr. Pamela Dalton, was improperly prevented from testifying about her “odor monitoring study and her opinion regarding the lack of odor nuisance emanating from Kinlaw Farm[s].” J.A. 8596. The district court qualified Dr. Dalton, a scientist specializing in understanding the human perception of odor, as an odor expert, but it barred her from offering certain testimony about odor monitoring she conducted at Kinlaw Farms. Appellant’s arguments about the testimony of Dr. Dalton are inaccurate on a number of levels. First, contrary to Appellant’s assertions, the issues on which Dr. Rogers and Dr. Dalton opined are not the same. 6 Dr. Rogers did not purport to opine as to whether odors reaching Appellees’ properties constituted a nuisance or that an objective measure of objectionable odors was even possible. Dr. Dalton, on the other hand, asserted “to a reasonable degree of scientific certainty . . . that the normal operating activities at the farm do not produce odors that travel offsite at an intensity, frequency or duration that would be considered a nuisance level at the [Appellees’] properties.” Expert Report of Pamela Dalton, Ph.D, MPH at 5, McKiver v. Murphy-Brown, LLC, No. 14-cv-00180-BR (E.D.N.C. Sept. 28, 2018), ECF No. 96-1. Dr. Dalton also indicated, “It is generally agreed that unless 6 Though the Rules of Evidence do not guarantee perfect correspondence of adverse expert witness testimony, Appellant was in any event permitted to use Dr. Jennifer L. Clancy as a rebuttal witness to Dr. Rogers. Dr. Clancy’s testimony included her critique of Dr. Rogers’s methodology and report. 35 an odor can be detected at a 7:1 dilution or higher, it is not an objectionable odor.” Id. at 4. Citing its obligation to ensure “a valid scientific connection to the pertinent inquiry,” Nease, 848 F.3d at 229 (quoting Daubert, 509 U.S. at 592), the district court rejected the proposed testimony of Dr. Dalton as to the odor levels emanating from Kinlaw Farms. Though the court did allow Dr. Dalton to testify about the unreliability of human self- reports of odor, it excluded Dr. Dalton’s “testimony about the odor monitoring study and her opinion regarding the lack of odor nuisance emanating from Kinlaw Farm[s].” J.A. 8596. The district court explained, “North Carolina (unlike some other jurisdictions) has not adopted a dilution to threshold ratio or any other objective standard for assessing whether an odor is objectionable,” and even Dr. Dalton recognized “the perception of odors is a highly subjective experience.” Id. For these reasons, the district court concluded that her testimony “would have a strong likelihood of confusing or misleading the jury,” and her opinion based on her report would likewise “not be helpful to the jury and would be confusing.” Id. ii. We conclude that the exclusion of Dr. Dalton’s odor monitoring testimony was not an abuse of discretion. Though an expert’s “opinion is not objectionable simply ‘because it embraces an ultimate issue to be decided by the trier of fact’ -- [here, whether the odors leaving Kinlaw Farms created a nuisance] -- . . . such an opinion may be excluded if it is not helpful to the trier of fact under Rule 702.” Kopf v. Skyrm, 993 F.2d 374, 377–78 (4th Cir. 1993) (quoting Fed. R. Evid. 704(a)). Dr. Dalton purported to provide objective 36 evidence as to whether Kinlaw Farms was giving off odors constituting a nuisance and asserted that odors below a particular threshold were not considered objectionable. Given that North Carolina has not adopted an objective measurement for nuisance odors, and that Plaintiffs themselves would be testifying about their experiences relative to the nuisance at their respective properties, the district court’s judgment that Dr. Dalton’s testimony would not be helpful and would in fact confuse the jury was not an abuse of discretion. 3. The Supreme Court has cautioned appellate courts against “fail[ing] to give the trial court the deference that is the hallmark of abuse-of-discretion review” in the expert testimony context. General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997). “[I]t is very much a matter of discretion with the court whether to receive or exclude the evidence; [such that] the appellate court will not reverse in such a case, unless the ruling is manifestly erroneous.” Id. at 142 (quoting Spring Co. v. Edgar, 99 U.S. 645, 658 (1879)). This is true whether the evidence is physical or testimonial, from a lay witness or expert. See id. Here, none of the concerns lodged by Appellant render the district court’s evidentiary decisions “manifestly erroneous.” Id. (quoting Spring Co., 99 U.S. at 658). And Appellant’s argument that the district court erred in admitting one expert without the other fails to appreciate that the testimonies speak to different issues -- one to whether odor- causing particles are present and the other to whether the odors were causing a nuisance -- not to mention that no such parity is guaranteed by the Rules of Evidence. We therefore affirm the district court’s decisions as to admission and exclusion of the testimonies of Drs. Rogers and Dalton, respectively. 37 E. Jury Instruction as to Vicarious Liability for Nuisance Next, Appellant contends the district court misstated North Carolina law in its jury instruction on nuisance. Specifically, the district court instructed the jury that a party can be vicariously liable for nuisance “if it employs an independent contractor to do work which that party knows or has reason to know to be likely to involve the creation of a nuisance.” J.A. 9165. This language was based on section 427B of the Restatement (Second) of Torts (1965). Appellant claims, however, that this instruction misstated North Carolina law because the North Carolina Supreme Court has not explicitly adopted the language from this Restatement. 1. “We review de novo whether the district court’s instructions to the jury were correct statements of law.” Gentry v. East West Partners Club Mgmt. Co., 816 F.3d 228, 233 (4th Cir. 2016) (quoting Emergency One, Inc. v. Am. FireEagle, Ltd., 228 F.3d 531, 538 (4th Cir. 2000)). “Even if a jury was erroneously instructed, however, we will not set aside a resulting verdict unless the erroneous instruction seriously prejudiced the challenging party’s case.” Id. (emphasis in original) (quoting Bunn v. Oldendorff Carriers GmbH & Co. KG, 723 F.3d 454, 468 (4th Cir. 2013)). 2. First, we look to the language of Restatement section 427B, which states, “One who employs an independent contractor to do work which the employer knows or has reason to know to be likely to involve a trespass upon the land of another or the creation of a public 38 or a private nuisance, is subject to liability for harm resulting to others from such trespass or nuisance.” The comments to section 427B explain that the section applies particularly “where the contractor is directed or authorized by the employer to commit such a trespass, or to create such a nuisance, and where the trespass or nuisance is a necessary result of doing the work.” Restatement (Second) Torts § 427B cmt. b. But the section 427B rule will apply even if the employer did not “direct[] or authorize[]” the nuisance; “[i]t is sufficient that the employer has reason to recognize that, in the ordinary course of doing the work in the usual or prescribed manner, the trespass or nuisance is likely to result.” Id. 3. As Appellant indicates, North Carolina’s highest court has not expressly adopted the Restatement provision at issue. But Appellees urge that North Carolina case law demonstrates the Restatement’s “likely to” liability theory applies here. First and foremost, we are mindful of our role as a federal court sitting in diversity. In Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88 (4th Cir. 2011) we explained, “[a] federal court acting under its diversity jurisdiction should respond conservatively when asked to discern governing principles of state law.” Id. at 96 (citing Day & Zimmermann, Inc. v. Challoner, 432 U.S. 3, 4 (1975) (per curiam)). As a result, “in a diversity case, a federal court should not interpret state law in a manner that may appear desirable to the federal court, but has not been approved by the state whose law is at issue.” Id. With this principle in mind, in Rhodes, “we decline[d] the plaintiffs’ invitation to predict that the West Virginia Supreme Court of Appeals would adopt the specific provisions of the Restatement advanced by the plaintiffs.” Id. The Rhodes court identified a case from West 39 Virginia’s highest court directly conflicting with one of the Restatement theories the plaintiffs urged and found nothing else to show the alternative theory had been “embraced” by the state’s courts. See id. at 95–96. “But in a situation where the [state’s highest court] has spoken neither directly nor indirectly on the particular issue before us, we are called upon to predict how that court would rule if presented with the issue.” Private Mortg. Inv. Servs., Inc. v. Hotel and Club Assocs., Inc., 296 F.3d 308, 312 (4th Cir. 2002). The state’s intermediate appellate courts’ decisions “constitute the next best indicia of what state law is, although such decisions may be disregarded if the federal court is convinced by other persuasive data that the highest court of the state would decide otherwise.” Id. (internal quotation marks omitted). We are therefore tasked with understanding whether North Carolina has embraced the jury instruction’s rule, as borrowed from the Restatement. 4. In Coastal Plains Utilities, Inc. v. New Hanover County, 601 S.E.2d 915 (N.C. Ct. App. 2004) itself -- the case Appellant cites for what it says is a general rule against contractor liability -- the intermediate Court of Appeals of North Carolina considered a party’s argument that a contractor’s employer is liable for a trespass “if the independent contractor’s trespass was committed at the direction of the employer, or where the work necessarily involved a trespass or where trespass is likely to occur.” Id. at 925 (emphasis supplied) (internal citations omitted). The plaintiff there directly cited Restatement section 427B for this principle and argued that the defendant’s water and sewer system was likely to result in a trespass. See id. at 925–26. Without question, the court went straight to 40 applying the “likely to” test Appellant here challenges. Id. at 926. The independent contractor rather than its employer designed the project, so the court observed, “[The plaintiff] ha[d] not pointed to any evidence that the project, if properly designed, would likely have caused a trespass. Without such evidence, the County could not be held liable under this theory.” Id. at 926 (emphasis supplied). If “North Carolina does not hold employers vicariously liable for hiring independent contractors to do work that is ‘likely’ to create a nuisance,” as Appellant contends, Appellant’s Br. 47 (emphasis in original), we would expect that the Court of Appeals would have just said so, rather than attempting to apply that very standard. The district court’s jury instruction on the “likely to” exception here thus appears to be consistent with North Carolina law. The district court here possessed North Carolina precedent applying that very test, with nothing from the state’s highest court to suggest otherwise. Application of the test appears in the very case Appellant advances to demonstrate North Carolina’s rule. See Appellant’s Br. 47 (quoting Coastal Plains Utils., Inc., 601 S.E.2d at 923). Where the Rhodes court saw the West Virginia Supreme Court of Appeals announcing a contrary rule to the Restatement and silence as to an alternative Restatement theory, 636 F.3d at 96, the district court here was presented with North Carolina precedent applying the exact exception provided in the jury instruction it selected. Still, Appellant argues that the allegedly erroneous vicarious liability jury instruction given by the district court “significantly prejudiced” Appellant’s defense and permitted “reams of so-called ‘notice’ evidence about odor problems at other farms” to be admitted. Appellant’s Br. 49 (emphasis omitted). In Appellant’s view, evidence that 41 Appellant knew of odor problems at contract grower operations other than Kinlaw Farms would only be relevant under a theory of vicarious liability. But Appellant’s awareness of the known issues associated with its prescribed farming methods is relevant under a direct liability theory as well, such that -- even if the contested instruction as to vicarious liability were erroneous -- prejudice did not result. In North Carolina, harms caused by a “corporation’s acts or policies” constitute “a theory of direct liability” in the punitive damages context. Everhart v. O’Charley’s Inc., 683 S.E.2d 728, 737 (N.C. Ct. App. 2009). Therefore, the jury’s finding in favor of punitive damages could rest on Appellant’s acts itself, in making and enforcing the problematic policies and decisions, not merely on its direction of Kinlaw Farms. Evidence of the known effects of Appellant’s policies and procedures, as uniformly applied across their various grower operations including Kinlaw Farms, would therefore be relevant irrespective of any supposed vicarious liability theory based on supervision of its contractor. As a result, we hold that the contested jury instruction did not prejudice Appellant because the evidence admitted and the jury’s judgment equally apply under a theory of direct liability such that, even if the instruction were erroneous, it did not prejudice -- much less “seriously prejudice[]” -- Appellant. Gentry, 816 F.3d at 233 (emphasis in original). 42 F. Punitive Damages Finally, Appellant asks us to decide whether the district court erred in submitting the issue of punitive damages to the jury, rather than deciding as a matter of law that Appellees could not meet the punitive damages standard. 1. At the close of Appellees’ case and again at the close of all evidence, Appellant moved for judgment as a matter of law that Appellees did not present sufficient evidence to meet North Carolina’s standard for punitive damages. The district court denied the motion each time. We review denial of a motion for judgment as a matter of law de novo, with all evidence and reasonable inferences taken in the light most favorable to the nonmoving party. See Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 391 (4th Cir. 2014). Judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50 is proper when “a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a)(1). A district court should grant judgment as a matter of law “if the nonmoving party failed to make a showing on an essential element of his case with respect to which he had the burden of proof.” Russell, 763 F.3d at 392 (internal quotation marks omitted). North Carolina makes punitive damages available to plaintiffs who demonstrate that (1) the defendant is liable for compensatory damages and (2) either fraud, malice, or willful 43 or wanton conduct are present as aggravating factors and are related to the injury for which compensatory damages were awarded. N.C. Gen. Stat. Ann. § 1D-15(a). A plaintiff bears the burden of proving the existence of one of the aggravating factors by clear and convincing evidence. Id. § 1D-15(b). Here, Appellees alleged “willful or wanton conduct,” which North Carolina defines as “the conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damage, or other harm.” Id. § 1D-5. “Willful or wanton conduct means more than gross negligence.” Id. (internal quotation marks omitted). North Carolina does not permit punitive damages to be awarded “solely on the basis of vicarious liability for the acts or omissions of another.” N.C. Gen. Stat. Ann. § 1D- 15(c). “Punitive damages may be awarded against a person only if that person participated in the conduct constituting the aggravating factor giving rise to the punitive damages, or if, in the case of a corporation, the officers, directors, or managers of the corporation participated in or condoned the conduct” in question. Id. In this context, we have previously explained, “[t]he plain meaning of ‘condone’ is to ‘forgive or overlook,’ or ‘permit the continuance of.’” Vandevender v. Blue Ridge of Raleigh, LLC, 901 F.3d 231, 239 (4th Cir. 2018) (quoting Miller v. B.H.B. Enters., Inc., 568 S.E.2d 219, 225 (N.C. Ct. App. 2002)). This means, for example, “[a] manager condones employees’ actions when the manager is aware of those actions and fails to intervene.” Id. (citation omitted). 44 2. Appellant argues Appellees did not put forth evidence from which a reasonable jury could conclude Appellant engaged in willful or wanton conduct as an aggravating factor supporting punitive damages. Appellant makes no argument that the conduct at issue was not “related to” the claimed injuries. N.C. Gen. Stat. Ann. § 1D-15(a). a. Appellant Claims Lack of Knowledge Appellant’s primary wanton-and-willful argument is that it lacked knowledge of the conditions associated with its operation at Kinlaw Farms, and therefore cannot be said to have consciously disregarded any possible nuisance there. Appellant points, in part, to a lack of complaints from Appellees to Appellant as to the Kinlaw Farms operation. But Appellees argue that industrial hog operations are a “predictably messy business,” In re Murphy Brown, LLC, 907 F.3d 788, 792 (4th Cir. 2018), and contend Appellant “has known for decades that its ‘messy business’ is a nuisance when placed near residences,” Appellee Br. 30. i. Knowledge of Harms A lack of complaints about Kinlaw Farms in particular does not save Appellant from punitive damages. There can be no doubt that Appellees provided evidence of Appellant’s deliberate corporate policies and evidence that Appellant knew these policies had associated harms. Appellees’ proof in this regard included Appellant’s own collection of 45 media articles reporting conditions associated with its farming practices and policies, as well as its knowledge of studies detailing the effects of lagoon-and-sprayfield operations and types of effective remediation. 7 This evidence details effects on properties much further from the various hog operations than Appellees’ were from Kinlaw Farms. Yet, despite this knowledge, Appellant persisted in practices it knew were reasonably likely to result in injury to neighboring properties. The practices include but are not limited to (i) use of the existing lagoon-and-sprayfield waste management system without further remedial measures; (ii) the use of “dead boxes” to collect corpses; and (iii) persistent and unconstrained truck traffic. Still, according to Appellant, the lack of evidence that it had received complaints about Kinlaw Farms in particular forced Appellees to resort to what it calls a “nuisance per se” argument. Appellant’s Br. 20. But Appellees’ theory of liability was not that all lagoon-and-sprayfield farms are “inherently bad,” as Appellant phrases it, id. at 22, but rather that they create known risks to neighbors that must be monitored and remediated to avoid creating a nuisance. That is, Appellees sought to provide evidence sufficient for a reasonable jury to conclude that, in practice, Appellant’s persistent use of lagoons and sprayfields with only minimal remedial methods -- i.e. methods not comparable to known 7 Articles in Appellant’s possession and read into the record include accounts explaining that hog farms in Bladen County “stink” with a “sickening and nauseating odor,” such that neighbors “can’t plan outdoor activities because [they] never know which way the wind will blow.” J.A. 7451. In one letter in Appellant’s possession read at trial, a Bladen County resident explained that the hog farm in her community was affecting her “house and land and most of all [her] health” and that she had made verbal complaints about odor “several times.” Id. at 7449. 46 effective methods -- created a nuisance affecting neighbors of Kinlaw Farms, and that Appellant knew its failure to fully remediate the harms associated with those practices was “reasonably likely to result in injury, damage, or other harm.” N.C. Gen. Stat. Ann. § 1D- 5. For instance, Appellant admitted awareness of a number of available waste management technologies (such as soil technologies or lagoon covers) that would prevent nuisance odors from reaching neighbors and admitted that it could have its growers change to such technologies if it so chose. Yet Appellant argues that, because its farms were operated legally and consistent with all requisite permits, Appellees failed to prove that its lagoon-and-sprayfield operations were nuisances per se. This is beside the point. Lawful enterprises can constitute a nuisance in fact. See Jones v. Queen City Speedways, Inc., 172 S.E.2d 42, 47 (N.C. 1970). The parties do not debate that Kinlaw Farms’s grandfathered use of the lagoon-and-sprayfield system satisfied North Carolina’s permitting requirements. But North Carolina law hardly “protects” these operations as Appellant suggests. Appellant’s Br. 21. Indeed, new hog operations seeking permits in North Carolina cannot utilize the lagoon-and-sprayfield methods as they existed at Kinlaw Farms and existing lagoon-and- sprayfield farms are being slated for conversion to other methods of waste management. See N.C. Gen. Stat. § 143-215.10I; N.C. Sess. Laws 1997–458. The farm’s “grandfathering” does not serve to shield Appellant from nuisance liability, but rather is evidence a jury could use to conclude Appellant knew its operations posed a threat of nuisance to neighboring properties absent additional remedial measures. 47 Moreover, Appellees’ claims were not solely based on effects of lagoon-and- sprayfield practices, but also on other known side effects associated with industrial hog farming. For example, “dead boxes” and frequent traffic doubtlessly can create a nuisance in fact by interfering with neighbors’ use and enjoyment of their land due to pests, odors, and noises. Appellant’s former director Don Butler’s testimony reflected the company’s knowledge that Bladen County residents complained about “odor, flies, noise, trucks, [and] interference with their quality of life” from neighboring hog farms. J.A. 7466. A jury reasonably could hold Appellant responsible for knowing about the likelihood of these resultant harms but still persisting in its existing carcass-management and trucking policies. Appellant cites Finch v. BASF Catalysts, LLC, No. 1:16-cv-1077, 2018 WL 3941978 (M.D.N.C. Aug. 16, 2018), for the principle that “general awareness of danger is not enough to establish a conscious disregard of a known duty.” Id. at *5–6 (citation omitted). Indeed, “knowledge of broad statements about potential harms under undefined conditions is insufficient to show willful and wanton misconduct.” Id. at *6 (internal quotation marks omitted). But, although Appellant may not have had received specific complaints about Kinlaw Farms, the known dangers here were far from generic. Appellant had far more knowledge than the defendant in Finch, who was only “generally aware asbestos had health risks.” 2018 WL 3941978, at *6. Appellant was specifically aware of the risks associated with its chosen policies: Appellant possessed studies of Eastern North Carolina lagoon-and-sprayfield hog farms that explained the effects of those operations on their neighbors’ properties, received comments specifically about farms managed with its own methods, and knew Kinlaw Farms was in fact 48 implementing those practices as directed. The evidence demonstrates that Appellant ensured that its growers, including Kinlaw Farms, uniformly applied its practices: Appellant conducted weekly inspections of Kinlaw Farms to confirm that it maintained total compliance with Appellant’s prescribed policies. From this, a jury could reasonably conclude Appellant knew that Kinlaw Farms’s compliance with those procedures would create nuisance conditions for its neighbors. Further still, Appellees’ evidence demonstrated that Appellant knew the conditions as they actually existed at Kinlaw Farms based on multiple weekly inspections of the facility, including the proximity of neighbors, number of hogs, use of dead boxes, trucking schedule, and absence of control technologies. Thus, Appellees provided evidence from which a jury could conclude Appellant knew the procedures in place at Kinlaw Farms did not adequately address -- and actually persisted in -- known harms associated with lagoon- and-sprayfield operations and similar tightly controlled large hog farms in the region. ii. Intentional Disregard of Harms In all, there is abundant evidence supporting Appellant’s conscious disregard of the conditions at Kinlaw Farms. Appellees supplied evidence that Appellant knew the farming methods it mandated at Kinlaw Farms -- including lagoon-and-sprayfield waste management, minimal distance from neighboring properties, dead boxes, all-hours trucking, and a high volume of hogs -- caused known impacts to neighbors. This evidence included scientific studies and news reports in Appellant’s own collection, exposure to and participation in years of accumulated public comment on Appellant’s practices, and visible 49 political pressure to ensure adequate mitigation of the effects of those practices -- practices Appellant worked hard to ensure its contract growers, including Kinlaw Farms, implemented precisely. Appellees further provided evidence that, despite this knowledge, Appellant did not attempt to alleviate the effects of methods it knew Kinlaw Farms used at Appellant’s direction. Appellees also provided evidence demonstrating Appellant was aware of available technologies and its ability to alleviate the above described harms but chose not to implement those technologies. Finally, Appellees’ evidence demonstrated that Appellant did not even attempt to assess the impact of its operations on neighbors, despite known risks. Based on this abundance of evidence, a jury could reasonably conclude that Appellant persisted in its chosen farming practices despite its knowledge of the harms to its neighbors, exhibiting wanton or willful disregard of the neighbors’ rights to enjoyment of their property. b. Proactive Measures by Parent Companies Appellant also attempts to defeat punitive damages by relying on proactive measures taken by its parent companies as evidence that it could not have acted with wanton or willful disregard. Appellant offers Faris v. SFX Ent., Inc., No. 3:04-cv-08, 2006 WL 3690632, at *7 (W.D.N.C. Dec. 12, 2006), for the proposition that “even ineffective action may ‘show assertive effort inconsistent with disregard or indifference to the safety of others,’” Appellant’s Br. 22–23 (quoting Faris, 2006 WL 3690632, at *7). 50 First, as a district court opinion, Faris has no precedential value. See Booker v. S.C. Dep’t of Corrs., 855 F.3d 533, 538 n.1 (4th Cir. 2017). Beyond that, Faris fails to aid Appellant’s cause. In Faris, having heard word that two patrons had been electrically shocked in a stairwell, the defendant concert venue had a maintenance worker tape off the fixtures suspected of causing the problem; thus, the tortfeasor acknowledged the problem and took targeted action aimed at completely removing the risk of harm. 2006 WL 3690632, at *7. The court credited the defendant’s repeated efforts to correct, then test the correction, of the danger. Id. Therefore, the district court in Faris concluded that the plaintiff had not “produce[d] evidence that [the defendant] intentionally turned a blind eye to the danger: he looked, he saw, and he acted,” though his action was unfortunately ineffective. Id. The Faris court itself contrasted the facts presented there with a situation -- much like Appellant’s -- where the defendant “looked at [its options], saw the danger involved in using [the chosen approach], and used it despite the known danger.” 2006 WL 3690632, at *7. Here, Appellees presented clear and convincing evidence Appellant knew about likely harms, denied their existence, and fought for them not to come to light. Appellees also provided evidence demonstrating that the supposed proactive steps -- investment in feed conversion and nutrient output -- were motivated by profit and/or efficiency of operations, as opposed to concern for neighbors of Appellant’s hog operations. The fact that Appellant’s policies expressly encouraged growers to avoid spraying at times neighbors were known to be outside demonstrates that Appellant knew its sprayfield operation was still likely to interfere with its neighbors’ use and enjoyment of their 51 property, even taking into account other supposed proactive efforts. Even further, Appellant’s indifference to the effectiveness of its supposed remediation methods reasonably implies corresponding indifference to the rights of others to be free from the harms those methods are meant to avoid. See id. (noting defendant’s repeated efforts to ensure problem was resolved). Appellant’s conduct -- through its parent Smithfield -- might suggest an effort to reduce some odor effects. But a jury could still reasonably find conscious disregard of neighbors’ rights as evidenced by Appellant’s awareness that its methods fell far short of abating the problem, while it rejected alternatives demonstrably able to do so. 8 Moreover, even making proactive efforts to reduce fecal odor does not excuse Appellant from persisting in other practices such as dead boxes and all-hours trucking without any attempt to limit these practices out of respect for neighbors’ rights. On the whole, Smithfield’s limited proactive measures cannot rescue Appellant from punitive damages. 8 We pause here to note the inapplicability of Ward v. Autozoners, LLC, 958 F.3d 254 (4th Cir. 2020) provided by Appellant as supplemental authority on this point. Ward is wholly inapposite to the case at hand. Ward applied a theory of vicarious liability pursuant to Title VII, which provides its own separate standard for punitive damages, requiring the employer to act “with malice or with reckless indifference.” 42 U.S.C. § 1981a(b)(1). In Ward, we concluded that an employee’s supervisors had been negligent “at best . . . not recklessly indifferent” where “there was simply not sufficient evidence demonstrating that [they] engaged in . . . steps [to address harassment] with ‘subjective appreciation’ of the inadequacy.” Id. at 268. Appellant attempts to use Ward to illustrate how punitive damages represent a “high standard [for a plaintiff] to meet,” but the standard the plaintiff there was asserting would apply punitive damages “imputed to an employer based solely on negligence by management level employees.” Id. at 269 & n.5 (emphasis supplied). Here, by contrast, we are of course not applying Title VII’s punitive damages standard, and the evidence in the record supports a reasonable jury finding more than negligence. 52 c. Participation in or Condoning Misconduct Appellant’s final argument as to why punitive damages should not have been an available option for the jury is that Appellees failed to prove Appellant’s officers, directors, or managers “participated in or condoned” any misconduct. Appellant’s Br. 24 (quoting N.C. Gen. Stat. § 1D-15(c)). i. Appellant’s Policies Pursuant to North Carolina law, “[a] corporation may be subject to punitive damages based on a theory of direct liability where the corporation’s acts or policies constitute the aggravating factor.” Everhart v. O’Charley’s Inc., 683 S.E.2d 728, 737 (N.C. Ct. App. 2009) (citation omitted). In Everhart v. O’Charley’s, Inc., 683 S.E.2d 728 (N.C. Ct. App. 2009), an intermediate North Carolina appellate court considered whether a company’s policy of requiring managers to complete an incident form before rendering aid to customers in medical distress met the wanton-and-willful standard. There, the court concluded a jury could reasonably find the company chose to protect the restaurant from harm over preventing or mitigating harm to others, and from this the jury could find willful or wanton disregard of guests’ rights. See id. at 736. As in Everhart, a reasonable jury here could conclude that Appellant’s own policies reflected conscious and intentional disregard of the safety and wellbeing of others in the interest of protecting the company’s bottom line, rendering direct liability applicable. See id. at 737 (explaining that the company’s policy “recklessly disregards customers’ safety and well-being in order to begin 53 the process of protecting O’Charley’s against potential litigation,” supporting direct liability). Here, Appellees advanced evidence that Appellant’s own corporate policies -- as opposed to a separate policy of Kinlaw Farms -- prescribed the lagoon-and-sprayfield system, waste and carcass management, and all-hours truck traffic underlying the complaints. As a result, in contrast to vicarious liability for acts of its contractor, Appellant’s liability is premised on the corporation’s own act of maintaining a set of policies it knew perpetuated the effects of hog farming that (i) caused the state to outlaw such operations within a mile of homes, except where neighbors came to the nuisance and (ii) resulted in well-documented complaints and study results that applied to Kinlaw Farms, since the policies mandated uniform conditions across Appellant’s grower sites. ii. Officers & Managers Condoning Conduct Furthermore, the evidence demonstrates that Appellant’s officers and managers had notice of the harms caused by its operations, based on studies, community meetings, and political engagement. See N.C. Gen. Stat. Ann. § 1D-15(c). Yet Appellant’s leadership persisted in mandating the culpable practices and participated in political efforts aimed at minimizing regulation of harms known to be associated with Appellant’s chosen farming methods. This evidence is sufficient to support punitive damages. In Vandevender v. Blue Ridge of Raleigh, LLC, 901 F.3d 231, 238–39 (4th Cir. 2018), plaintiffs provided sufficient evidence to support an award of punitive damages by demonstrating the defendants’ managers had notice that their policy of maintaining 54 inadequate staffing created a danger to their facilities’ patients. See 901 F.3d at 238–39. Similarly, here Appellees provided sufficient proof by demonstrating Appellant’s principals had notice that their policy of maintaining their standard lagoon-and-sprayfield systems, bins, and trucks created annoyance and disturbance to neighbors, as evidenced by (i) community comments; (ii) studies focused on their practices and region; (iii) successful legislation/activism to ban their form of farming and find alternatives; (iv) regular inspections of the farm in question, showing knowledge that its practices were by-the-book; and (v) longstanding advocacy to limit nuisance suits by neighbors, from which a jury could reasonably infer knowledge that Appellant intended to persist in its methods without amending its conduct to respect its neighbors’ use and enjoyment of their property. We did not require the plaintiffs in Vandevender to show the defendant knew the likely harms had already come to pass at the facility in question. It is therefore clear that a jury could find Appellant’s principals at minimum “forg[a]ve,” “overlook[ed],” or “permit[ted] the continuance of’” the conditions at Kinlaw Farms. Vandevender, 901 F.3d at 239 (each quoting Miller, 568 S.E.2d at 225). Appellees here provided evidence that Appellant’s decisionmakers actually required Kinlaw Farms’ continued application of the problematic policies and attendant harms (such as dead boxes), in the face of statewide policy pressure to change these methods due to their known effects on neighbors when used as Appellant prescribed and with the knowledge that area residents were complaining about odor, flies, noises, and trucks associated with industrial hog operations. 55 Therefore, considering all evidence in the light most favorable to Appellees, we conclude the district court did not err in allowing the jury to decide whether Appellant’s principals “participated in or condoned” the aggravating conduct -- here, requiring its growers to persist in methods known to have associated harms. d. In sum, Appellees presented “clear and convincing evidence that [Appellant] w[as] fully aware” of the nuisance effects of its prescribed farming practices “yet did nothing or worse.” Vandevender, 901 F.3d at 239. From the evidence here, a jury could reasonably conclude Appellant and its officers “knew -- because they were repeatedly told -- that [their currently prescribed remediation of odors, noise, and pests] was reasonably likely to result in [injury to neighboring properties].” Id. at 240. “They nonetheless deliberately continued to disregard duties imposed by law” -- here the duty not to harm neighbors’ use and enjoyment of their own land -- “because doing so would increase profits.” Id. “This is precisely the type of egregious conduct punitive damages are meant to deter.” Id. (citing N.C. Gen. Stat. § 1D-1, which explains that the purpose of punitive damages is “to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts”). Having reviewed all of the evidence in this case, we lack reason to reject either the district court’s submission of the question of punitive damages to the jury or the jury’s determination here that clear and convincing evidence established that punitive damages apply. 56 G. Financial Evidence Appellant’s final assignment of error is that the district court erred by admitting financial information of Appellant’s “corporate grandparent” Smithfield and “ultimate parent entity” WH Group, and by refusing to bifurcate the punitive damages portion of the trial from the liability phase due to the allegedly inflammatory nature of such evidence. Appellant’s Br. 26. The contested evidence includes the values of Appellants’ parent companies and their executive compensation. We address this “parent evidence” argument in two parts. First, we analyze the evidence in the context of the jury’s verdict as to liability. Then, we do the same with regard to punitive damages. 1. Parent Evidence with Regard to Nuisance Liability a. Federal Rule of Evidence 403 states that a “court may exclude relevant evidence if its probative value is substantially outweighed by a danger of,” among other things, “unfair prejudice.” Fed. R. Evid. 403. “Except under the most ‘extraordinary’ of circumstances, where [the district court’s] discretion has been plainly abused, this Court will not overturn a trial court’s Rule 403 decision.” In re C.R. Bard, Inc. MDL. No. 2187, Pelvic Repair Sys. Products Liab. Litig., 810 F.3d 913, 920 (4th Cir. 2016) (internal quotation marks omitted). 57 b. We turn first to assess the probative value of the challenged financial evidence with regard to liability. The finances and executive compensation expenditures of Smithfield and WH Group were relevant to the question of nuisance liability because they are probative of the feasibility or impracticality of Appellant’s adoption of mitigation measures to avoid the harm to neighbors’ lands. In this regard, Appellees put forward testimony indicating that if Appellant wanted to cover its lagoons, Smithfield or WH Group would cover the costs. Specifically, Appellant’s president George Schmidt testified as follows: [Appellees’ Counsel]: If or when -- if the hog production division wanted to go cover the lagoons, it could go ask Smithfield or WH Group for the money to do it, right? Mr. Schmidt: That would be the procedure, yes. [Appellees’ Counsel]: And, as a matter of fact, if you wanted to do it, that would be where you’d get the money, you’d go to Smithfield or the WH Group for them to give you the money, right? Mr. Schmidt: Correct. J.A. 7908. The ability of Smithfield and WH Group to pay is therefore relevant evidence of whether Appellant would face undue hardship in abating the nuisance. If the cost of remediation were to be borne by a highly profitable parent company, Appellant’s claim that it would be harmed -- or that financial limitations prevented successful remediation -- rings hollow. Indeed, the AG Agreement itself committed Smithfield to providing financial assistance to convert lagoon-and-sprayfield systems operated by its contract growers. Smithfield’s ability to pay to do so thus is fundamental in deciding whether such 58 conversions were feasible. And significantly, Appellant conflated itself with its parent company, Smithfield, when asking the district court to credit Appellant with the AG Agreement and other policies adopted by Smithfield as though they were Appellant’s own. For all these reasons, we deem the parent financial evidence relevant to the question of whether any feasible effective remedial measures were out of Appellant’s reach. Therefore, we cannot conclude that the district court abused its discretion in deciding the probative value of this evidence -- which speaks to a key defensive argument raised -- was not “substantially outweighed” by unfair prejudice. Fed. R. Evid. 403. The district court carefully considered whether mention of Appellant’s parent companies’ finances was unduly prejudicial and whether this prejudice outweighed the probative value of that information. Further, the court made clear that the parent companies’ information could not itself be used to argue in favor of punishing Appellant. See J.A. 5726–27 (explaining that comparing individual executives’ salaries to local residents or using the foreign identity of Appellant’s corporate grandparent could not be used to argue in favor of punishment). The court also recognized that keeping information about parent companies’ ability to pay from the jury would permit a defendant to unfairly claim both that it is too poor to afford existing remedial measures, but also that it has been proactive (through its parent company) in developing new alternatives. And because Appellant wanted to claim Smithfield’s conduct as a shield, the district court reasonably concluded that evidence of Smithfield’s ability to cover remediation costs also could come in as a sword. Furthermore, due to North Carolina’s particular nuisance framework, mention of the parent companies’ identities and ownership bears a cognizable relationship to the 59 question before the jury. See N.C. Pattern Jury Instr. (Civ.) § 805.25 (noting the relevance of the “nature, utility, and social value of the defendant’s operation” to the existence of a nuisance). The task before the jury was to compare the community’s benefit with Appellees’ harm, and the fact that much of the profit from the injurious conduct left the area while Appellant and its local grower Kinlaw Farms were left unable to afford to abate the harm speaks to whether and how much the community benefitted from the operation. Ultimately, the district court did not bar Appellant from claiming its parent companies’ efforts as its own, but likewise also did not bar evidence of those companies’ abilities to do better. Though Appellant admits that contrasting “the community’s benefit against the harm to [Appellees]” is consistent with North Carolina law, Appellant’s Br. 28 (citing N.C. Pattern Jury Instr. (Civ.) § 805.25), it nonetheless contends that conflating Appellant and its parent companies in this analysis was unnecessary and unfair. But having invoked its parent companies’ identities in its defense, Appellant cannot complain that the court allowed the jury to have information about those entities for the purposes of comparing benefits and harms as delineated by North Carolina law. Where this is the case, we cannot override the district court’s considered judgment that the evidentiary value of the parent companies’ information was not substantially outweighed by undue prejudice. 2. Parent Evidence with Regard to Punitive Damages Though we decline to overturn the district court’s admission of Appellant’s parent company financial evidence relevant to liability, we reach a different conclusion as to bifurcation and the amount of punitive damages. Specifically, we conclude that the value 60 and compensation evidence was relevant to whether punitive damages should have been awarded and do not disturb the district court’s considered judgment that any prejudice associated with that information did not substantially outweigh its probative value in that context. However, this evidence does not bear the same level of relevance to the determination of the amount of punitive damages supported by Appellant’s conduct. Because of this irrelevance and because of the particular ability of potentially inflammatory evidence to sway a jury’s calculation of punitive damage awards, we vacate the judgment below as to the amount of punitive damages and remand for rehearing on that issue alone. a. We review a district court’s decision not to bifurcate a trial for abuse of discretion. Shetterly v. Raymark Indus., Inc., 117 F.3d 776, 782 (4th Cir. 1997). North Carolina has a mandatory bifurcation statute. N.C. Gen. Stat. § 1D-30. “But, in our federal system, bifurcation is a case-specific procedural matter within the sole discretion of the trial court.” Nester v. Textron, Inc., 888 F.3d 151, 163 (5th Cir. 2018) (citation omitted). Federal courts sitting in diversity “are to apply state substantive law and federal procedural law.” Hanna v. Plumer, 380 U.S. 460, 465 (1965). Therefore, “a district court is simply not bound by state law when deciding whether to bifurcate.” Nester, 888 F.3d at 163 (citing Getty Petroleum Corp. v. Island Transp. Corp., 862 F.2d 10, 15 (2d Cir. 1988) and Rosales v. Honda Motor Co., 726 F.2d 259, 260 (5th Cir. 1984)); see Shugart v. Cent. Rural Elec. Co-op, 110 F.3d 1501, 1504 (10th Cir. 1997); Sellers v. Baiser, 792 F.2d 690, 694 (7th Cir. 1986); Moss v. Associated Transp., Inc., 344 F.2d 23, 27 (6th Cir. 1965). 61 Federal Rule of Civil Procedure 42(b) specifies, “[f]or convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues . . . .” As we have explained, “when it is determined that the evidence relevant to the appropriate amount of punitive damages will be prejudicial to the jury’s consideration of liability or compensatory damages, bifurcation of the trial under Fed. R. Civ. P. 42(b) remains an available solution.” Mattison v. Dallas Carrier Corp., 947 F.2d 95, 110 (4th Cir. 1991) (citation omitted). This does not mean it is the only solution. “[S]ince the evidence usually overlaps substantially, the normal procedure is to try compensatory and punitive damage claims together with appropriate instructions to make clear to the jury the difference in the clear and convincing evidence required for the award of punitive damages.” Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1021 (9th Cir. 2004) (alteration in original) (quoting McLaughlin v. State Farm Mut. Auto. Ins. Co., 30 F.3d 861, 871 (7th Cir. 1994)). “The party requesting separate trials bears the burden of convincing the court that such an exercise of its discretion will (1) promote greater convenience to the parties, witnesses, jurors, and the court, (2) be conducive to expedition and economy, and (3) not result in undue prejudice to any party.” F&G Scrolling Mouse, LLC v. IBM Corp., 190 F.R.D. 385, 387 (M.D.N.C. 1999) (citations omitted). b. Appellant raises a very real specter of prejudice stemming from the parent company financial information. The Supreme Court has reminded us that “the presentation of evidence of a defendant’s net worth creates the potential that juries will use their verdicts 62 to express biases against big businesses, particularly those without strong local presences.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003) (quoting Honda Motor Co. v. Oberg, 512 U.S. 415, 432 (1994)). Importantly, “[o]ur concerns are heightened when the decisionmaker is presented . . . with evidence that has little bearing as to the amount of punitive damages that should be awarded,” because “[v]ague instructions, or those that merely inform the jury to avoid passion or prejudice do little to aid the decisionmaker in its task of assigning appropriate weight to evidence that is relevant and evidence that is tangential or only inflammatory.” Id. at 418 (internal quotation marks omitted). As explained above, the district court here did not abuse its discretion where, through the AG Agreement and Appellant’s admissions, Appellant’s ability to remediate harms necessarily implicated the financial worth and expenditures of its parent companies. But having decided to admit this evidence on the question of liability, the district court nonetheless needed to evaluate the effect that same information would have in the context of punitive damages and whether the risk of prejudice -- as described by the Supreme Court -- required bifurcation. A jury must be convinced by clear and convincing evidence to award punitive damages. This is a higher evidentiary burden than applies to the simple question of whether a defendant is liable for a nuisance. In finding nuisance, the jury had already concluded that Appellant had the ability to abate the harm without undue hardship. As with nuisance liability, we recognize the relevance of parent company financials relative to punitive damages where, as here, a defendant admits the connection of its parents to its own ability 63 to abate a nuisance. However, with regard to determining the amount of punitive damages to award, we fail to see what value the parent company financial evidence would have that could possibly outweigh the substantial risk of prejudice it carries in that delicate context. As the Supreme Court has recognized, inflammatory financial evidence can be especially destructive in the context of punitive damages because of the leeway given to juries in selecting the appropriate amount necessary to punish and deter. See State Farm Mut. Auto Ins., 538 U.S. at 417 (explaining how “punitive damages pose an acute danger of arbitrary deprivation of property” because of the “wide discretion” given to juries “in choosing amounts”). To be sure, juries are and should be afforded substantial room to exercise their discretion, but it is the court’s responsibility to ensure that the tools the jury uses to exercise that discretion are appropriate. See Mattison, 947 F.2d at 105 (“When a jury is left to its own devices to take property or mete out punishment to whatever extent it feels is best in the course of the process, our sensibilities about that process are offended.”). “[A] defendant’s financial position is a proper consideration in assessing punitive damages.” See Stamathis v. Flying J, Inc., 389 F.3d 429, 442 (4th Cir. 2004) (citing Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 22 (1991)). The jury here was instructed to consider Appellant’s ability to pay punitive damages, and the district court did not reference Appellant’s parents’ ability to pay. This makes sense: while testimony indicated that Appellant’s parent companies would be responsible for remediation costs -- justifying admission of the financial evidence on the matter of liability -- there was no such evidence 64 that Appellant’s parent companies would be made to bear the costs of a punitive damage award. Still, without a more specific jury instruction, a jury exposed to the high-dollar values of Appellant’s parent companies and the parents’ executive compensation could understandably -- but inappropriately -- apply that information when it came time to decide how much money would be required for Appellant to “feel” the effect of the damages award. Appellees used the high values and high-dollar compensation figures of Smithfield and WH Group to argue that Appellant, through its relationship to these wealthy parents, “ha[d] the money to eliminate the odor, [yet] cho[se] to do nothing.” J.A. 5817; see also J.A. 9050 (“They know there is a problem. They know there is a fix. They willfully choose not to do anything about it. Not even figure out how much it would cost [to fix], but yet they pay $245 million to four people over four years. That’s the kind of money they can spend when they want to.”) But though this evidence is relevant to the question of whether Appellant’s refusal to change policies and technologies was a willful choice, it does not bear the same relevance to the proper amount of punitive damages necessary “to punish [Appellant] for egregiously wrongful acts.” N.C. Gen. Stat. § 1D-1. Thus, given the irrelevance of the parents’ financial information to the amount of punitive damages, and given the lack of guidance provided to the jury as to how that information is to be applied in the analysis, in the absence of a limiting instruction, we conclude that the district court should have bifurcated the trial pursuant to Federal Rule of Civil Procedure 42(b) in order to avoid any undue prejudice associated with such evidence. To be quite clear -- we do not disturb the district court’s decision to submit the availability 65 of punitive damages to the jury or the jury’s determination that those damages are appropriate in this case; rather, we are only remanding for a new calculation of those damages absent the parent company financial evidence that threatens significant prejudice without any relevance to the question of the appropriate amount of punitive damages to award. “Exacting appellate review ensures that an award of punitive damages is based upon an application of law, rather than a decisionmaker’s caprice.” State Farm Mut. Auto. Ins., 538 U.S. at 418 (internal quotation marks omitted). Juries are given greater latitude in assigning value to punitive damages than they possess in the liability and compensatory damages contexts, where the damages awarded are grounded in actual losses to the plaintiff. Because of this distinction, our deferential standard of review requires us to only redress the evidentiary prejudice as it pertains to the amount of punitive damages, where financial prejudice has a unique ability to do harm to a defendant. Here, a limited remand so that the amount of the punitive damages award can be reconsidered with constraints on the parent financial information will ensure that the award is based solely on Appellant’s own conduct and ability to pay, and not on any unfair prejudice against its status as the subsidiary of a wealthy parent. We therefore vacate the jury’s judgment as to the amount of punitive damages, and remand for rehearing with omission of the inflammatory parent company financial evidence. III. For the foregoing reasons, we conclude that none of Appellant’s arguments require the grant of a new trial wholesale. We do however remand this case for the limited purpose 66 of determining the proper amount of punitive damages without the parent company financial evidence, including executive compensation. AFFIRMED IN PART; VACATED AND REMANDED IN PART 67 WILKINSON, Circuit Judge, concurring: I am pleased to concur in Judge Thacker’s well-reasoned opinion. It ably explains why compensatory and punitive damages were appropriate here and why the admission of certain financial information, specifically the valuation and executive compensation structure of Murphy-Brown’s parent companies, was especially prejudicial with respect to the amount of any punitive award. As Judge Thacker notes, punitive damages represent an especially unmoored and ungrounded form of relief, and it makes sense to keep their consideration free of gratuitously inflammatory evidence. The danger of an unleashed jury, moreover, is far greater where it sets the amount of a punitive award than when it determines willfulness and wantonness. See Sasaki v. Class, 92 F.3d 232, 238 (4th Cir. 1996) (affirming a jury finding of punitive liability while remanding for a redetermination of punitive damages). It is that danger that Judge Thacker rightly perceives requires a remand here. I write separately, however, to highlight the facts in this case that support the jury’s finding that liability for compensatory and punitive damages in some amount was warranted. It is past time to acknowledge the full harms that the unreformed practices of hog farming are inflicting. This is not to say that the industry is unimportant. In fact, quite the contrary. Hog farming is central to economic life in North Carolina. It supports 46,000 much-needed, mostly low-skill jobs and accounts for approximately $11 billion of the state’s annual economic productivity. Brief of the American Farm Bureau Federation et al. as Amici Curiae Supporting Appellant 8, McKiver v. Murphy-Brown (No. 19-1019) [hereinafter 68 Am. Farm Bureau Brief]. 1 This economic activity is concentrated in the state’s relatively rural eastern region. Sampson, Duplin, and Bladen counties collectively contain over forty percent of the state’s hog farms, where size undoubtedly makes for market efficiencies. See id. at 8–9. The efforts of those who work in these farms play an important role in preserving the nation’s food supply. Pork products include not only bacon, sausage, ham, and pork chops, but also byproducts with pharmaceutical applications. Inedible byproducts such as pig hair and skin can be useful in producing, respectively, such things as paint brushes and wallets. John R. Romans et al., Purdue University, Pork By-Products, https://www.animalgenome.org/edu/PIH/128.html. It is the hog’s misfortune, and, I suppose, humanity’s good fortune that it has become such an indispensable animal. To safeguard the hog farming industry, the state legislature amended the Right to Farm Act, limiting future nuisance recoveries to declines in a property’s market value. See N.C. Sess. Laws 2017-11, codified at N.C. Gen. Stat. § 106-702. The state had also generally capped punitive awards per plaintiff at “three times the amount of compensatory damages or two hundred fifty thousand dollars ($250,000), whichever is greater.” N.C. Gen. Stat. § 1D-25(b). In passing these laws, the state legislature acted within its constitutional police powers. 1 While it is of course true that amicus briefs were not part of the jury’s consideration, they align in this case to an exceptional extent with the extensive trial testimony that is herein referenced. 69 But our job is different. In this case, the ancient tort of nuisance, which has long refereed disputes between neighbors, see e.g., Tenant v. Goldwin (1705) 92 Eng. Rep. 222, is claimed to have a very contemporary application. Plaintiffs, almost all of modest means and minorities, live in close proximity to Kinlaw Farms, the hog farm at issue in this case. They have brought suit contending that Murphy-Brown, which by virtue of contract directed Kinlaw’s operations, “substantially” and “unreasonabl[y]” interfered—in a “willful and wanton” manner—with the “use and enjoyment of their property.” Complaint at 35, 39, McKiver v. Murphy-Brown, LLC, No. 4:14-cv-00153-F (E.D.N.C. Aug. 21, 2014); see also Morgan v. High Penn Oil Co., 77 S.E.2d 682, 689 (N.C. 1953); N.C. Gen. Stat. § 1D-15(a). The industry counters that such suits pose “a dire threat to hog farming” [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4588098. Public record. Not legal advice.