[This is one of several stories and blog posts that will cover the hog nuisance trial in federal court in Raleigh. Check the Progressive Pulse blog for updates and analysis. Neighbors of the farm begin testifying this week. The trial is expected to last through the April.
The life-size ceramic dirty pink pig that stood in front of the jury box did not testify last week. But the mere presence of the porcelain porcine spoke volumes.
With US Senior District Court Judge Earl Britt’s permission, plaintiffs’ attorney Michael Kaeske had carted in the prop to help illustrate the testimony of an expert witness — environmental engineer, scientist and animal waste specialist Shane Rogers. The pig was likely unnecessary. Rogers testified in painstaking detail for two days about what he saw and smelled at Kinlaw Farms, the Murphy-Brown-owned facility in question. He described how he found bacteria from hog feces on 17 of 19 houses a half-mile away. He narrated graphic photos of the crammed interior of a hog barn, where the animals sloshed in their own waste.
And in what appeared to be a match of legal judo, the plaintiffs’ and defense attorneys took turns flipping Rogers’ testimony to buoy their case.
Rogers was aggressively cross-examined by Murphy-Brown’s defense attorney Mark Anderson, whose task was to try to undermine Rogers’ scientific methods, credentials and conclusions. Although the jury includes a woman with an extensive science background, at least one juror is a climate change skeptic. Casting doubt on the science was clearly a strategy — although one that potentially backfired.
“You brought a team of people with you, correct?” Anderson asked, showing Rogers a photograph of two people sitting about 30 yards from a hog barn at the farm. “They’re eating lunch.”
But as the jury learned in later testimony, the people were eating lunch by the hog barn — without respirators or other protective gear — because there was no where else to go on the farm.
“This is fairly unfortunate,” Rogers said, when Kaeske later asked him to provide context.. “The defense team showed up with an RV. They would not let us in the RV to eat, and they said if we went offsite, we couldn’t come back. I had no idea this was the case beforehand.”
Women were allowed to use the bathroom in the RV, Rogers testified, but not the men.
Another photo showed Rogers in a boat sampling from a waste lagoon. “This lagoon was particularly awful,” Rogers said. But Rogers wasn’t wearing a respirator, Anderson noted.
There was a valid reason for the lack of a respirator, Rogers testified. Beforehand, he had worn a respirator in a barn where he conducted sampling. The odor “was very very strong,” Rogers said, and the hydrogen sulfide meter was “oversaturated.” (Hydrogen sulfide smells like rotten eggs.) He burned through three respirator cartridges and had none left. “So I sampled the lagoon without one,” Rogers said.
(Rogers did amend his testimony to say that he had misremembered an aspect of the NC State University research farm on Lake Wheeler Road. It doesn’t use clean wastewater to flush its barns. Like Kimlaw, the farm uses wastewater from the lagoons.)
Rogers is being paid $250 an hour by the plaintiffs’ for his expert testimony. That testimony includes his findings, released in 2016, of the presence of DNA from fecal bacteria on 17 of 19 houses near the Kinlaw Farm. The bacteria DNA — known as Pig2BACT — indicates that not only odors but also pathogens are intruding on the plaintiffs’ property.
“I would not want to live there. It smells. I didn’t need to swab the wall for DNA to know that.”
“Then why did you test for Pig2BACT?” asked plaintiffs’ attorney Michael Kaeske.
“I wanted to bring physical evidence to show that the bacteria had moved from farm to the neighborhood,” Rogers said. The odors come and go, “but the fecal bacteria stays there.”
Anderson seized on the fact that Kaeske had done some of the swabbing of the walls, raising chain of custody and quality control issues. However, Rogers testified that he had trained Kaeske on how to conduct the test — taking a sterile swab, rubbing it over a small portion of a wall, placing the swab in a sterile container, before shipping it off to an accredited lab.
Murphy-Brown, Rogers said, did not test for Pig2BACT, but could have.
Rogers said he was followed by at least one Murphy-Brown representative as he studied the site. He testified that none of the company scientists took samples alongside him. Rogers gave them some of his samples, he testified. “But Murphy-Brown destroyed them.”