agriculture, Courts & the Law, Environment

Federal judge reduces damages in hog nuisance case — far below the total of $50 million

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20 days ago
In agriculture, Courts & the Law, Environment

Hogs stand in feces and urine inside a barn at Kinlaw Farms in Bladen County. Last month, a federal jury awarded 10 neighbors of the farm a total of more than $50 million in damages against Murphy-Brown. A federal judge today reduced the total damages to $3.25 million. (Photos from court exhibits)

The 10 winning plaintiffs in a hog nuisance lawsuit won’t receive their $50 million in punitive damages  — $5 million each — against Murphy-Brown, as awarded by a jury. Instead, the total amount has been reduced to $2.5 million, just $250,000 apiece, according to a ruling handed down today by US District Court Judge Earl Britt.

Including compensatory damages for harm to their quality of life, the plaintiffs will each receive $325,000.

The first of dozens of hog nuisance lawsuits went to trial in federal court in April. After three weeks’ of proceedings, the jury ruled in favor of 10 Bladen County residents who live within a mile of Kinlaw Farms. The farm raises 15,000 hogs that are owned by Murphy-Brown, the world’s largest pork producer.

The jury had awarded each plaintiffs $75,000 in compensatory damages and $5 million in punitive damages. Punitive damages are awarded when a jury determines a defendant, in this case, Murphy-Brown, committed fraud, or acted with malice or engaged in willful or wanton conduct.”

Whether the plaintiffs would receive the full and historic amount was in doubt almost immediately after the award was announced.

Murphy-Brown attorneys with McGuireWoods appealed the amount, based on a state law and subsequent Supreme Court case that limits punitive damages to “no more than three times  the amount of compensatory damages or $250,000 whichever is greater.”

The law capping punitive damages, passed in 1995 by the NC legislators, received wide support from the influential hog industry.

Attorneys at Wallace & Graham, who represented the plaintiffs, argued that a limitation on the amount of punitive damages is “unconstitutional as applied.” Specifically, they argued that in this case for private nuisance, the statute violates their right to a jury trial.

US District Court Judge Earl Britt agreed with the defendants.

Some states have ruled punitive damage caps as unconstitutional, but not North Carolina, Michelle Nowlin, an expert in agricultural and food law, told Policy Watch after the jury’s decision. And in other states, judges can uphold the jury’s award, as long as he or she determines the award is not “excessive.” In North Carolina, though, the judge does not have this discretion. Nor can juries be instructed about damage limitations before weighing their decision.

Murphy-Brown attorneys have said they also plan to take the case to the Fourth Circuit of Appeals.

The second hog nuisance trial begins with jury selection on Tuesday, May 29, in US District Court in Raleigh.

 

 

 

agriculture, Environment

Environmental justice groups reach settlement with DEQ over federal complaint, hog farms

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24 days ago
In agriculture, Environment

This post has been updated with comments from the NC Department of Environmental Quality.

The NC Department of Environmental Quality has settled a long-standing federal civil rights complaint that environmental and community groups had filed with the EPA.

The Waterkeeper Alliance, NC Environmental Justice Network and REACH (Rural Empowerment Association for Community Help) filed the complaint in September 2014, the complaint alleged that the state’s general permitting process for swine farms disproportionately burdens communities of color.

By allowing those facilities to operate with “grossly inadequate and outdated systems of controlling animal waste” the complaint alleged, there was an “unjustified disproportionate impact on the basis of race and national origin against African Americans, Latinos and Native Americans.”

Elizabeth Haddix and Mark Dorosin, attorneys with the Julius C. Chambers Center for Civil Rights, represented the complainants.

DEQ’s Title VI coordinator, Sarah Rice, could not be reached for comment. Update: NC DEQ issued a press release with a statement on Thursday afternoon:

“The agreement underscores DEQ’s commitment to strengthening environmental protection and public engagement in communities that are impacted by industrial swine facilities,” said DEQ Secretary Michal Regan.”

Naeema Muhammed, executive director of NCEJN, said in a prepared statement that she recognized the “groundbreaking” nature of the settlement. Yet she cautioned that “at the same time, the harmful effects of the hog industry on communities in eastern North Carolina continue, and all of us involved in this struggle need to keep the pressure on. There is still a long way to go to address the harms caused by the swine industry.”

 Title VI civil rights complaints can be filed only against entities that receive federal funds. DEQ receives federal grants and other monies. That is why the hog industry was not a part of the settlement.

The settlement is lengthy, but the key points include a requirement that DEQ implement a temporary — and depending on the data,  potentially permanent — ambient air quality monitoring in and around Duplin County. 

DEQ has agreed to conduct at least one year of surface water monitoring in the affected areas, as well.

Other terms include enhancing public participation and transparency in granting animal waste permits. Within a year, DEQ will also prepare a draft rule designating a system of points, based on violations, to be assigned to farms operating under the general permit.

“While these changes may seem technical,” added Will Hendrick of Waterkeeper Alliance, “they will begin to address air and water pollution from the swine industry.”

The complaint originated in a disagreement over the state’s general permits for animal waste. In 2013, the complainants formally asked DEQ to modify the permits to account for the racial and ethnic impacts of the swine farms on neighboring communities before issuing the permits. Read more

agriculture, Commentary, Courts & the Law, Environment

Analysis: Besides the money, why the plaintiffs’ win over the hog industry is so historic

By
April 27, 2018
In agriculture, Commentary, Courts & the Law, Environment

Photos taken inside one of the hog barns at Kinlaw Farms and presented to the jury in the case of McKiver vs. Smithfield Hog Production Division (Photos from court filings)

For an industry used to getting its way, the jury’s verdict was a stunning rebuke.

On Thursday in federal court, the jury awarded 10 plaintiffs who live adjacent to an industrialized hog farm $75,000 each in compensatory damages, plus another $5 million apiece for punitive damages. The total: Upward of $50 million, an historic amount, assessed against Murphy-Brown/Smithfield Foods, the world’s largest pork producer.

Kinlaw was not the defendant; the hogs are owned by Murphy-Brown/Smithfield, and Kinlaw is responsible for raising them, but every other part of the farm’s operation is dictated by the company.

Because of a state law capping damages a jury can award, the breathtaking figure might not survive a legal challenge and could be reduced. But for the residents — most of them, related — of Pearl Lloyd Road in rural Bladen County, the judgment carries not only tangible benefits but also symbolic ones.

The case pitted North Carolina’s behemoth hog industry — the second-largest in the nation — against working-class, rural Black families. Murphy-Brown/Smithfield wields enormous power: in the legislature, in local governments, in politics, even at universities. But one place where the hog industry is on slippery footing is before a jury. Because jurors can look at a tornado of buzzards circling a dead box, can view photos of hogs wading in their own feces and urine, can listen to the dispassionate scientific testimony and the passionate narrative of the plaintiffs. Jurors can evaluate the evidence — and they can empathize.

The $50m judgment carries not only tangible benefits but also symbolic ones Click To Tweet

For years, the plaintiffs testified, life next to Kinlaw Farms has been hellacious: Acrid odor from the lagoons and the manure spray fields barges into their yards and homes. Flies swarm, and buzzards loiter in their yards, waiting to feast on hog carcasses in the farm’s dead box. Scientists found DNA from hogs’ fecal bacteria on the side of their homes. All of this, they testified — and photos shown the jury from inside the filthy barns amplfied the point — harmed their property values and eroded their quality of life.

Murphy-Brown/Smithfield, the plaintiffs’ attorneys argued, has the money — $452 million in operating profits — to upgrade their farms’ lagoon systems to reduce the odor and the nuisance, but have chosen to take the cheaper way out.

The jury agreed. But the 10-person panel could have stopped there, awarding merely compensatory damages for quality-of-life issues. Instead, jurors determined that the evidence met a higher threshold. To award punitive damages, jurors had to find that the company “committed fraud, or acted with malice, or engaged in willful or wanton conduct” — which indicates how appalled they were. Read more

agriculture, Courts & the Law, Environment

Jury awards plaintiffs more than $50 million in historic hog nuisance lawsuit

By
April 26, 2018
In agriculture, Courts & the Law, Environment

This is a developing story and will be updated tomorrow.
This post has been updated with more information about the law regarding punitive damages.

A jury deliberated for less than two days before awarding 10 plaintiffs $50 million in a hog nuisance lawsuit against Murphy-Brown/Smithfield Foods, the world’s largest pork producer.

According to the verdict sheet, the jury unanimously agreed that Murphy-Brown, which owns the hogs at Kinlaw Farms in  Bladen County, “substantially and unreasonably interfered with the plaintiff’s use and enjoyment of their property.” The jury awarded each of the plaintiffs $75,000 on those grounds. But the jury also had the latitude to award punitive damages. They did so: $5 million for each plaintiff. In sum, the plaintiffs, ranging in age from their teens to 85, were awarded a total of $50.7 million.

“We are pleased with the verdict,” said Mona Lisa Wallace of Wallace and Graham law firm in Salisbury, in a prepared statement. The firm represented the plaintiffs, and Michael Kaeske argued the case.  “These cases are about North Carolina family property rights and a clean environment.  I am grateful for the hard work of our co-counsel, Mike Kaeske, and the others who worked on this trial.  We are now preparing for the next which is scheduled for the end of May.”

At least a half-dozen more trials related to nuisances from industrialized hog farms are scheduled through the fall.

Smithfield Foods, a $15 billion global food company, issued a statement in response to the verdict, which the company said it will appeal to the Fourth Circuit Court. Here it is in full:

“We are extremely disappointed by the verdict. We will appeal to the Fourth Circuit, and we are confident we will prevail. We believe the outcome would have been different if the court had allowed the jury to (1) visit the plaintiffs’ properties and the Kinlaw farm and (2) hear additional vital evidence, especially the results of our expert’s odor-monitoring tests.

These lawsuits are an outrageous attack on animal agriculture, rural North Carolina and thousands of independent family farmers who own and operate contract farms. These farmers are apparently not safe from attack even if they fully comply with all federal, state and local laws and regulations. The lawsuits are a serious threat to a major industry, to North Carolina’s entire economy and to the jobs and livelihoods of tens of thousands of North Carolinians.

From the beginning, the lawsuits have been nothing more than a money grab by a big litigation machine. Plaintiffs’ original lawyers promised potential plaintiffs a big payday. Those lawyers were condemned by a North Carolina state court for unethical practices. Plaintiffs’ counsel at trial relied heavily on anti-agriculture, anti-corporate rhetoric rather than the real facts in the case. These practices are abuses of our legal system, and we will continue to fight them.”

The original jury pool of 40 or so people was roughly 50 percent Black. But after Smithfield attorneys finished their challenges to the jurors, the final 10-person panel was predominantly white. (A 12th juror, also white, became ill early in the trial and could not continue serving; another juror was excused because they knew one of the witnesses..) All of the plaintiffs are Black. Most are related and live in modest homes adjacent to Kinlaw Farms, which raises 15,000 hogs owned by Murphy-Brown/Smithfield Foods. Next door, Don Butler, a retired corporate executive for Murphy-Brown/Smithfield lives on a palatial estate where he raises horses. (This is a different Don Butler than the one that worked for Murphy-Brown.)

Attorney Mark Anderson, who represented Murphy-Brown, cited state law that caps the amount of punitive damages. He said that punitives can’t be more than three times the compensatory damages — in this case, $225,000 per plaintiff — or $250,000, whichever is higher. If the jury awards more than that amount, the trial court is supposed to reduce the award to the maximum amount.

However, Michelle Nowlin, clinical professor of law and supervising attorney for the Environmental Law and Policy Clinic at Duke University, said the standards could be different because this trial was held in federal court, not state court. But if the ratio of compensatory to punitive damages is more than 1 to 10, then the award could be reviewed; the extra damages aren’t prohibited, but do receive additional scruinty. If that standard applies in this case, the punitive awards could be capped at $750,000 per plaintiff.

Update: Nowlin later added that the state statute does apply. Some other states have found caps to be unconstitutional, but North Carolina is not one of them. In other states, judges have the discretion to uphold a jury’s award, as long as the judge determines the award is not “excessive.” In North Carolina, though, the judge does not have this discretion.

The state statue also prohibits the attorneys and the court from informing the jury of the cap on punitive damages.

Nowlin was not involved in the case, but is an expert in agricultural law and policy, and led the Southern Environmental Law Center’s Hog Industry Project.

Nonetheless,, Nowlin wrote in an email. “to award any punitive damages, the jury was required to find that the company committed fraud, or acted with malice, or engaged in willful or wanton conduct.”

“This is a significant victory for the community members who live next to these factory feedlots,” she said in a written statement. “They have suffered indescribable insults, not just from the immediate impacts of the feedlots themselves, but also from decades of government failure to come to their aid. Litigation was their last chance for justice, and this verdict and award will help them move forward.”

agriculture, Environment

Murphy-Brown destroyed samples, and other tidbits from Week 1 of the hog nuisance trial in federal court

By
April 9, 2018
In agriculture, Environment

[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.”

 

 

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