What will it take for the company to cover its open-pit waste lagoons?
Shortly after 10 o’clock yesterday morning, a federal jury in the hog nuisance case Gillis vs. Murphy-Brown delivered the news: Hung.
After a fortnight of patiently listening to plaintiffs’ and defendants’ testimony, and two days of deliberation, the panel of eight women and two men declared they were deadlocked in deciding whether the Sholar Farm was culpable of nuisance: Did the 6,200-head industrialized hog farm, with its attendant odor, flies and truck traffic, from open-pit waste lagoons and spray fields, more likely than not impose a substantial and unreasonable interference on eight plaintiffs’ quality of life and enjoyment of the property in Sampson County?
They didn’t know.
Senior Judge David Faber, imported from the Southern District of West Virginia for the trial, sent the jury back.
Keep talking. Work it out.
The nuisance trial was the fourth of roughly two-dozen filed against Smithfield Foods, the world’s largest pork producer. Despite enlisting a cadre of attorneys from McGuireWoods — a high-profile law and lobbying firm with offices in Raleigh, Richmond, Va., as well as abroad — Smithfield lost the first three cases, and badly. Juries in those cases awarded not only compensatory but also punitive damages to the plaintiffs, totaling nearly a half-billion dollars. Smithfield has appealed the verdicts to the Fourth Circuit Court.
This case, though, potentially turned the corner. Smithfield hired a formidable pinch-hitter in Robert Thackston, a notoriously acerbic lawyer from Texas. Senior District Court Judge Earl Britt, who at 86 was ailing with a bad back, did not oversee the trial, to the delight of the hog industry, as well as several lawmakers, who felt Britt was biased toward the plaintiffs. (Rep. Jimmy Dixon called Britt an “activist judge,” without having observed any significant parts, and possibly none, of the trial.)
Judge Faber, stern and at times cantankerous, corseted the plaintiffs’ arguments, restricting what could be introduced as evidence. For example, in the 200-page pretrial order, Faber forbade any discussion of the Chinese ownership of Smithfield. There would be no mention of the fact that neighbors of the plaintiffs in this case were suing in future ones. The video deposition of Steve Wing, who studied the effects of industrialized hog farms on the mental and physical health of neighbors, was truncated. There would be no talk of punitive damages unless the jury ruled in favor of the plaintiffs.
And as part of a court-ordered agreement, the company picked the plaintiffs in this case. (They also selected them in the second trial, as the plaintiffs and defense attorneys alternate.) Six of the eight plaintiffs had moved to the neighborhood, on land inherited from their families, after the Sholar Farm had been established. Alone, this fact could have derailed the case, because if a plaintiff “moves to the nuisance” that undermines his or her claim.
So for two weeks, Thackston and Jim Neale with McGuireWoods tag-teamed against plaintiffs’ attorney Michael Kaeske. They repeatedly — and often successfully — objected to his argumentative style of questioning, to his introduction of evidence. Whether their objections were legitimately motivated, or whether they were intended to disrupt Kaeske’s flow, is unknown. But the result was a slog of a trial, interrupted by a Thanksgiving holiday and an unseasonably early snowstorm, that at times sputtered like a car with a bad clutch.
Unlike the farms in the previous three cases, Sholar is owned and operated by Smithfield, meaning there is no “family farmer” to shield the company from bad publicity. Although the lawsuits were filed in 2014, only in August — three months before the trial — did Smithfield begin to upgrade operations on the farm. The company installed a refrigerated deadbox to keep the flies and buzzards at bay. It reduced the number of truck trips through the neighborhood and restricted their hours. It revived a mothballed Aerway spray system that reduces the feces-laden aerosols that can drift to neighboring properties.
Although the open-pit lagoons were still key to its waste management system, Sholar Farms, the defense attorneys argued, was responding to neighbors’ concerns.
While in the previous three trials, the verdicts represented the juries’ disapproval of Smithfield’s farm operations, the decisions could also be viewed as an indictment of the state’s so-called regulations governing industrialized hog farms.
The farms have general “non-discharge” permits, which assume, incorrectly that effluent never leaves the property boundary. That is unlikely, considering recent state sampling data, supported by independent tests by Cape Fear River Watch, that show high — sometimes very high — levels of fecal coliform, ammonia, phosphorus and nitrogen in streams and tributaries in the heart of hog country, Duplin County. The state will have to track the source of these pollutants to determine the source; poultry farms, which operate with virtually no oversight, could contribute to the contamination.
Moreover, the NC Department of Environmental Quality has just three inspectors for more than 700 farms; annual inspections rarely last more than an hour. As DEQ’s Christine Lawson, program manager for the Animal Feeding Operations, acknowledged on the stand, a farm could be non-compliant for 364 days of the year and the state would never know.
Since law passed a decade ago by the legislature, the Division of Soil and Water Conservation has been in charge of inspecting industrialized hog farms in five counties, ostensibly to ease the workload on DEQ. But lawmakers moved the Division of Soil and Water Conservation from DEQ to the Department of Agriculture. And as Kaeske pointed out in a previous trial, division employees report to an elected commissioner, Steve Troxler, who receives campaign contributions from the hog industry.
At 11:41, an hour and a half after Judge Faber had told the jury to continue deliberating, the group returned to the courtroom. The verdict: In favor of all eight plaintiffs.
Although Kaeske had mentioned in his closing arguments that $3 million to $5 million per plaintiff would be fair, the compensatory damages were significantly more modest than the amounts awarded to previous plaintiffs.The figures were presumably based on the proximity of plaintiffs’ homes to the Sholar Farm. Four plaintiffs received just $100. Two, William and Edna Murphy, (no relation to Wendell Murphy, founder of Murphy Family Farms), got $1,000 each. Darlene Mayor got $25,000. The closest neighbor, octogenarian Lottie Fowler, born in her great-grandmother’s house long before Smithfield even conceived of Sholar Farm, was awarded $75,000.
In previous trials, the jury could award punitive damages in tandem with compensatory. But in this case, the punitive phase is separate. It continues this morning.
One outstanding question, though, is what will become of the hogs at the Sholar Farm? The company “depopulated” the previous three “family farms” —Carter, Kinlaw and Greenwood — where it dictated every aspect of management and operation. Smithfield had argued that since the jury had determined these farms were a nuisance — which doesn’t violate any state laws — the company had no choice but to reduce the number of pigs until there were none. And having batting 0-for-4, will Smithfield finally cover its lagoons?
Policy Watch asked Smithfield to comment on the case. The company did not respond.