Over the summer, as Murphy-Brown lost three historic nuisance lawsuits in which juries penalized them more than a half-billion dollars, the hog industry and its surrogates changed tactics. If they could not win before a judge and jury, they would do so in the legislature and in the court of public opinion. At choreographed rallies, at press conferences, on the House and Senate floor, they threw red meat — or being pork, white meat — to their base to rally them against people suing industrialized swine farms for nuisance. The charge: Out-of-state trial lawyers have invaded North Carolina to ruin family farmers.
“We need to change the statutes and stop [the trial lawyers] from spreading like cancer in the country,” said US Sen. Thom Tillis at a National Agriculture Roundtable earlier this fall. One of his main campaign contributors is McGuireWoods, the firm that had been unsuccessfully defending Murphy-Brown, a Smithfield subsidiary, in the nuisance suits. “I hope we can put them out of a job.”
Now the world’s largest pork producer, Smithfield Foods has hired one of those out-of-state trial lawyers to defend it in the next hog nuisance case. Robert Thackston, a partner at Hawkins, Parnell Thackston & Young in Dallas, will square off against Michael Kaeske, the plaintiffs’ attorney, who is also from Dallas. Kaeske was hired by Salisbury firm Wallace & Graham to be the lead attorney at trial.
Jury selection is scheduled to begin Nov. 13 in US District Court in Raleigh. Judge David Faber, from the Southern District of West Virginia, will hear the case. Senior Judge Earl Britt, 86, presided over the first three cases.
A graduate of UNC law school, Thackston has represented plaintiffs, including landowners whose property was affected by a nearby nuisance, as well as defendants against those very types of claims, according the firm’s website. He has defended manufacturers who made products with ingredients like benzene, dioxin, PCBs and asbestos. (Thackston also gave a presentation, “Defending Retailers in Asbestos Litigation,” in 2003.)
Coincidentally, asbestos is how Kaekse made his name: by representing plaintiffs with mesothelioma, a fatal type of cancer caused by exposure to asbestos.
In the hog cases, McGuireWoods and Wallace & Graham, including Kaeske, spent the fall in mediation, hoping to avert the need for more trials. Those proceedings are confidential, but nonetheless, the fourth case, Gillis v. Murphy-Brown, will proceed in November. It is one more than 20 still pending before the court.
Gillis v. Murphy-Brown, which involves a farm raising 7,184 hogs in Sampson County, is different from the previous lawsuits, with potentially more at stake for the company. In all of the litigation, Murphy-Brown has been the defendant, not the individual farmer. Because the company owns the hogs and strictly dictates every aspect of farm’s operations, it is responsible for paying any punitive and compensatory damages related to odor and flies from open-pit hog lagoons and sprayfields that the juries have deemed a nuisance to the neighbors.
The individual farmers, contracted with Murphy-Brown, are penalized, but not by the jury; the company, instead of upgrading the waste systems and thus eliminating the nuisance, “depopulates” the farm. It chooses to remove the pigs and the primary source of the farmers’ livelihood. Without disclosing the nuances of these agreements, Murphy-Brown and the NC Pork Council have portrayed the lawsuits as an assault on small family farmers.
In the Gillis case, Smithfield not only owns the hogs but also the farm itself. There is no “family farmer” to shield the company from responsibility or to appear at rallies on its behalf.