agriculture, Commentary, Courts & the Law, Environment

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

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

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.”

Courts & the Law, Defending Democracy, News

Meet the judges behind today’s story about judicial redistricting

At least six judges spoke to NC Policy Watch over the past two weeks to discuss how judicial redistricting plans could affect their future and impact the communities they serve.

Every single judge made a point to note that the plans were not about them specifically but about the bigger picture of an independent judiciary with access to fair and equal justice for all.

Their concerns are highlighted here, but it’s worth noting that they each bring different experiences and perspectives to the bench that would be a loss to the state should they lose their seat due to judicial redistricting.

Here are snippets of their stories, presented in order of how they were quoted in the PW story:

Robin Robinson:

Robinson has been a district court judge in New Hanover and Pender counties since 2011. She is mainly a family court judge, but also works in the DWI and drug treatment courts and presides over juvenile and other district court cases, including civil, criminal, domestic violence, child support and mental commitments.

She describes her interest in serving on the bench as “more evolutionary than revolutionary” over a long legal career.

Robinson recently received a YWCA Lifetime Achievement Award for her work. The women’s organization’s mission is to eliminate racism, empower women, stand up for social justice, help families and strengthen communities.

Her nomination letter describes her service to her family, community, friends and colleagues.

“From her experience with community service and pro bono work, to her legal career, pioneering the local bar’s alternative dispute resolution process, and qualification as a family law specialist, to her judgeship Judge Robinson has shown herself to be an outstanding member of our community,” it states. “She has set high goals for herself and has achieved them with quiet dignity, intelligence, humility and grace.”

In her PW interview, Robinson said judges try not to think about the impact of judicial redistricting so that they can keep serving the public to the best of their ability.

“Day to day, we want to be free to just do our jobs, which we take very seriously,” she said.

Allen Baddour:

Baddour was first appointed as a superior court judge in 2006. He went into private practice after law school and did “a little bit of everything” until becoming a prosecutor. He hadn’t initially set out to be a judge but his legal experience led him there and he hasn’t looked back.

“I like having a hand in how our system operates,” he said in a recent interview with PW. “I like to think that I don’t care who wins — it’s not about that, but it’s about doing my best to give everyone a shot at a just trial and an efficient trial. I think that’s really important.”

Baddour has held court in more than 25 counties across the state and is certified to preside over complex litigation. He helps educate fellow judges and lawyers, helped lead the design and construction of the new Chatham County Justice Center and speaks frequently with students about law and the courts.

He said he hasn’t decided what he would do in 2022 if still double-bunked with colleague Carl Fox, another superior court judge serving Chatham and Orange counties.

Carl Fox:

Fox has been a superior court judge since 2005. He was previously a district attorney and assistant district attorney. He described his move to the bench as a “natural transition” from his prior experience in superior court.

Fox said he enjoys traveling across the state to hold court and that he has been to Charlotte six times, Goldsboro at least three times and Greensboro anywhere from 12 to 20 times.

“I’ve gotten to see a lot of different places, a lot of different courtrooms and met a tremendous number of really nice people; lawyers, court personnel, clerks, bailiffs, judicial staff,” he said.

Fox also said he’s gotten to try a lot of restaurants across the state and joked that he could write a restaurant and hotel guide for all the places he’s stayed and eaten.

He was diagnosed in 2015 with a deadly blood cancer and had to set his judicial duties aside, but returned to the bench about a year later after receiving a blood marrow transplant using umbilical cord stem cells that saved his life.

Fox, like Baddour, said he has not yet decided what he will do in terms of 2022 if he is double-bunked.

“I hope we don’t have to attempt to address that at that point, but I realize that’s a real and distinct possibility,” he said.

Amber Davis:

This year marks Davis’ 18th year on the bench. She previously worked as an assistant district attorney and also practiced law in Guam for three years while her husband worked as a JAG officer for the military.

Davis said she enjoys working in the district court and moving around to meet different people. She described the judicial redistricting plan as an “emotional roller-coaster” for her and her family.

“To my children, my whole identity, they see me as mom and judge, and for that change [to take place] would shock them,” she said. “The mention of it is a shock to them.”

She is considered a senior judge in the first judicial district and said she grew up on the bench, noting that there is a lot to be said about her experience.

“We’ve taken our gut check, we’ve lost, we’ve been appealed, we’ve been reversed, we’ve learned, we’ve made mistakes and we’ve lost lots of sleep at night,” she said. “It’s one of those things where the more I do, the more I realize how much I don’t know.”

Carrie Vickery:

Vickery is in her first term on the bench as a district court judge. She was previously in private practice.

“This is the thing I had always wanted to do,” she said. “As an attorney, you touch so many lives and as a judge, you can touch so many more lives.”

She described district court as the “cornerstone of the community.”

Vickery has enjoyed several leadership roles within the legal community. She said still pinches herself some days because she feels so lucky to have her current job.

She said it’s difficult to know what is happening with judicial redistricting because there have been so many changes, but that she feels like the bench in Forsyth County is evenly divided and representative of the makeup of the area.

She added that party labels have nothing to do with her job as a judge.

“The things that I hear have nothing to do with party politics,” she said. “It would be inappropriate for me to try to insert politics in any way into the judiciary or the cases I hear.”

Eula Reid:

Reid has been a district court judge in the first judicial district for a little over 10 years. She was previously an assistant district attorney.

She made a bid to get on the bench after the retiring judge asked her if she would be interested in the seat.

“I enjoy helping people and I feel sometimes when you’re on the bench, people look at it differently, but it’s really nice to enter a judgement for or against someone and then you to see them out in public and they thank you for doing whatever you did, be it in their favor or not,” she said.

Reid is the only black female judge on the bench in her district and works to be a role model to young people. She said she has “maybe put her head in the sand” in regards to what she would do if her position was eliminated through judicial redistricting.

“I truly enjoy being a judge,” she said.

She described the job now as more political than it was in the past but said she remains independent.

“I’ve always thought that when people appear before me, they don’t really care if I’m a Republican or Democrat,” she said. “All they want to know is that I’m going to apply the law and that I’m going to apply it impartially.”

Courts & the Law, Defending Democracy, News

A familiar face in DC: rising SCSJ voting rights attorney argues first case at SCOTUS

Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice, argued Tuesday for the first time at the U.S. Supreme Court. (photo provided by SCSJ)

Allison Riggs argued at the U.S. Supreme Court this week for the first time, solidifying her rapid rise to the top in the world of voting rights litigation.

Riggs, 36, is the senior voting rights attorney for the Southern Coalition for Social Justice(SCSJ). She already has several federal court victories under her belt, including the successful challenge to North Carolina’s “monster” voter suppression law in the Fourth Circuit of Appeals.

She is usually arguing for fair voting districts in North Carolina, but this week she took on racial gerrymandering in Texas in Abbot v. Perez at the nation’s highest court.

Riggs called the experience amazing, “flat out, no matter what,” but said to stand up at the high court and be able to fight for what’s right and to be able to paint a picture of what it’s like for people of color to vote in Texas made it all the more meaningful.

“It sort of takes the honor to a whole new level,” she said in a phone interview Wednesday.

Riggs spent a ton of time preparing in what is called a moot, or practice round of court. She completed five moots in six days and felt like after, she was in pretty good shape for the real thing.

“There wasn’t a question I got [at the Tuesday hearing] that I hadn’t already heard in my moots,” she said.

SCSJ is a community-based civil rights legal non-profit in Durham that was created a little over a decade ago. It has since become a national leader in the voting rights field, successfully challenging racial gerrymandering efforts in North Carolina at nearly every level of government — congressional, state legislative, county, city and school board.

The most recent cases they were involved in include North Carolina v. Covington, the racial gerrymandering case that led to a special master’s involvement in the redrawing of legislative districts, and Common Cause v. Rucho/League of Women Voters v. Rucho, partisan gerrymandering cases that resulted in the state’s congressional plan being tossed out.

SCSJ currently has three cases pending at the high court.

The Texas case that SCSJ is involved in centers on questions of racial gerrymandering and how much say voters of color have in electing who represents them — 11 political districts are on the line. At the heart of the case is whether Texas lawmakers intentionally diminished the voting power of Hispanic and black voters to keep white incumbents in office, according to the Texas Tribune.

SCOTUSblog has a full rundown of Tuesday’s hearing online, including Rigg’s argument on behalf of the statehouse plan.

She tried to convince the justices that the Texas legislature had enacted its 2013 plan to “perpetuate its ill-gotten and racially discriminatory 2011 gains,” the post states.

Riggs speculated that justices might break on ideological grounds on the racial gerrymandering merits of the case (though Justice Anthony Kennedy didn’t tip his hand, she said) but she thinks they have a good chance of winning the jurisdiction argument involved in the case.

Several people from the Southern Coalition for Social Justice turned out Tuesday to the U.S. Supreme Court to support Allison Rigg’s first argument there. (Photo provided by SCSJ)

Dustin Chicurel-Bayard, communications director at SCSJ, described Riggs as a passionate and brilliant attorney “who is a force to be reckoned with.” He said her past victories didn’t matter much to her Tuesday.

“Riggs takes every case one at a time, much like a quarterback takes one game at a time,” he said, adding that she was prepared to be “laser focused, standing before our nation’s highest court, ready to advocate for voting districts that do not discriminate against voters based on race.”

Several folks from SCSJ were there to show their support, including former founder Anita Earls, who left to run for a seat on the state Supreme Court.

Everyone’s support meant a lot to Riggs, but Earls’ was particularly special.

“Anita is my mentor — she’s my person,” she said. “Her feedback and guidance means the world to me.”

She said Earls helped her along the way by giving her feedback and guidance that she was able to incorporate into a stronger argument at Tuesday’s hearing.

“She’s the only reason I was there yesterday,” Riggs said. “Before we started arguing, I turned around to make eye contact with her and she gave me a huge smile and a nod, like ‘you got this.'”

Riggs said she also thought it meant a lot to Earls to see her at the Supreme Court because it meant that SCSJ’s work would continue even as she went on a different path.

Riggs hopes Tuesday won’t be her only trip to the Supreme Court. She said she is just shy of her 37th birthday and hopes to have a long career ahead of her, in which she can become a good Supreme Court advocate.

She also promised that the fight for fair voting districts wouldn’t end here.

“Regardless of what happens, we’ll brush ourselves off and get up to fight another day,” she said.

Courts & the Law, News

Cooper appoints two superior court judges in Gaston, Vance areas

Judges Carolyn Thompson and David Phillips

Gov. Roy Cooper has announced two new superior court judicial appointments.

Carolyn Thompson was appointed to serve in district 9, which encompasses Vance, Granville, Franklin and Warren counties. She is replacing Judge Robert Hobgood, who is retiring at the end of this month.

She has served as a district court judge in the same district since 2009 and has presided over civil, criminal, domestic, juvenile and mental health hearings. She has also been a mentor and volunteer for teen and truancy courts, according to a news release from Cooper’s office.

David Phillips was appointed to serve in district 27A, Gaston County. He is replacing Judge Robert T. Sumner, who retired earlier this month.

He worked as an attorney in the same district for over 20 years, the release states. He also served on the Gaston County Board of Education for 12 years, ending his tenure in 2014.

“These appointees bring important experience, dedication to the law, and a commitment to justice to their positions,” Cooper said. “I’m grateful for their service to the people of North Carolina.”