Despite legislative wins, North Carolina pork giant loses again in court

Murphy-Brown had in its pocket 111 lawmakers who voted last week to all but end nuisance lawsuits against industrialized hog farms. But what the world’s largest pork producer didn’t have turned out to be as important: 12 jurors.

After a month of tense and combative testimony that included a gag order and surprise documents, a federal jury ruled against Murphy-Brown. Instead, it awarded $25 million in compensatory and punitive damages to Elvis and Vonnie Williams, whose property lies roughly a quarter-mile from a farm owned by former Beulahville Police Chief Joey Carter.

Because of a state cap on punitive damages, U.S. District Court Senior Judge Earl Britt will be required to reduce the total award to a maximum of $315,000 for each plaintiff.

A Murphy-Brown spokeswoman said the company could not comment because of the judge’s gag order on the parties to the lawsuit.

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The judgment in the nuisance case, the second loss this year, was a gut punch to Murphy-Brown. Considering the number of plaintiffs — upward of 500 — and the cases, roughly two-dozen —  Judge Britt directed attorneys for the plaintiffs and defense to alternate in choosing the parties for each trial.

This was supposed to be Murphy-Brown’s strongest case. The outside of the Williams’ house had not been tested for pig feces, as their neighbors’ homes had been. They had not complained to Carter himself about the stench and the flies and the buzzards. They had moved to the area when a portion — but certainly not all — of Carter’s two large farms had been built.

Yet confronted with what plaintiffs’ attorney Michael Kaeske said was “common sense” — millions of gallons of hog feces will stink, with or without swabbing a house for poop — Murphy-Brown failed to convince the jury that Carter’s farm and its 4,750 hogs are a benign, “petty annoyance,” as attorney Mark Anderson of McGuireWoods law firm argued in court.

But the company has succeeded outside the courtroom. Now that the NC Farm Act is law, only the nuisance suits pending before the court can proceed. They will likely be the last of the trials, unless someone successfully challenges the law on constitutional grounds.

As it stands, the legislature has placed such onerous legal burdens on potential plaintiffs that it’s unlikely any such suits will be filed again. For example, a farm that hasn’t been recently penalized by the state — a rare occurrence — can’t be sued for nuisance.

The company and by extension, the legislature, are also stoking divisions within communities that actually should be united for economic and environmental justice. What started as a legal battle has now become personal, pitting neighbor versus neighbor.

Last week, shortly before the governor’s veto of the N.C. Farm Act, Murphy-Brown, the N.C. Pork Council, Murphy-Brown/Smithfield and Agriculture Commissioner Steve Troxler held a tense “Stand Up For NC Farm Families”  rally in front of the Legislative Building. The implication was that people who oppose the health and environmental hazards emanating from an antiquated method of waste management must also oppose farmers. The truth and nuance were lost.

Any nuance was also absent in committee hearings, and on the House and Senate floor, including during the successful vote to override the veto. There, bill sponsors of the Farm Act claimed the legislation was vital to ridding the state of “frivolous” lawsuits. Rep. Jimmy Dixon said that the judge in these cases “was wrong” in allowing them to proceed.

While the judge does have power over motions, evidence and other protocols of the court, these are not bench trials. They are protracted proceedings in front of 12 jurors from the court’s Eastern District, the pool of which includes residents of hog-producing counties. In effect, lawmakers are doubting their own constituents’ ability to render a fair judgment.

The constituents also include neighbors of the industrialized farms, who were rarely even mentioned throughout the debate. Instead, lawmakers repeatedly warn that if the billion-dollar company continues to lose these cases — the fault of “out-of-state lawyers” and money-seeking plaintiffs — the state’s hog industry will collapse.

Anderson, Murphy-Brown’s attorney, underscored that point to the jury. “The bold rhetoric is an attack on Joey Carter. It’s an effort to tear down what he has built.”

He quoted Duplin County officials as saying any harm to the hog industry would be “catastrophic.”

A catastrophe, though, is not inevitable. Murphy-Brown could upgrade its waste systems.

Although called as a witness, Joey Carter was not on trial.Smithfield, which owns Murphy-Brown, was the defendant. It owns the farm’s 4,740 hogs and dictates Carter’s operations, including the management of the stinking open pits of waste — 49,348 pounds a day — that attract flies and buzzards.

“This is an agricultural community,” said Michael Kaeske, attorney for the plaintiffs. “But that doesn’t mean you can cause a nuisance placing hogs that close to neighbors. They aren’t against farms. But we need a balance. It can be done given the money Smithfield makes. “

Murphy-Brown has so far refused to upgrade its waste management systems, despite, as its Chinese parent company, WH Group, proudly reported to investors, recording four consecutive years of record-breaking financial results. In 2017, according to the company’s annual shareholder report, net profits topped $1 billion, an increase of 7.5 percent.

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Meanwhile, Murphy-Brown contracts allow it to pull its pigs for any reason, and that can be devastating for farmers, already cash-strapped by the terms of the agreements. (Farmers are paid by the hog. After expenses, such as loan payments on buildings and land, for example, many earn less than $45,000 a year. )

For example, after losing the first nuisance suit, which resulted in a $50 million verdict — later reduced to $3.25 million because of a state law capping punitive damages — the company is choosing to no longer replenish the Kinlaw Farm with pigs. After those 15,000 hogs are gone, the Bladen County farm could be in limbo, pending an appeal.

Murphy-Brown could do the same to Joey Carter.

“Nobody wants Joey Carter to go out of business … In fact, Joey Carter should be over here, on our side,” Kaeske told the jury. “Companies can’t put a human shield between them and the nuisance.”

Ironically, while lawmakers were subverting the judicial system, Anderson was extolling it.

“The great thing about this country,” Anderson said in his closing arguments to the 12 men and women, “is the jury system.”

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BILLY HOUSTON, MISSING DOCUMENTS AND A GAG ORDER

Billy Houston, the target of an unrelated SBI investigation, is now among the players in a recent hog nuisance trial involving allegations that Duplin County government withheld public records from the plaintiffs. Those records included a key document showing that neighbors did complain about Joey Carter’s farm as long ago as 1985.

Until he retired two weeks ago, Houston was a soil technician at the county Soil and Water Conservation District. 

Documents filed with the court show that a year ago, Bo Thompson, an attorney hired by Smithfield to represent farmer Joey Carter, had sent a confidential letter to Houston about the court’s “legal hold” regarding public records.

Smithfield, not Carter, was the defendant, but his farm was the focus of the nuisance suit.

In the letter to Houston, Thompson spelled out the court order that required the county to retain all documents related to the Joey Carter farm. However, Thompson also requested Houston and the district provide him with files, notes, records, spreadsheets — all documents that government officials have still failed to provide to the plaintiffs.

The defense received the documents even though plaintiffs’ attorneys at Wallace and Graham had requested them before the trial started, but never received them. The attorneys also met with Houston last month in an effort to obtain them for the trial. 

On June 20, after the plaintiffs rested their case, Thompson produced a key document, he wrote to Wallace and Graham, because they had not been able to obtain it through a public records request. (Failure to disclose the document would have also violated the rules of discovery.)

Because the plaintiffs had rested their case, the jury never saw the document. The defense team would not have introduced it into evidence; the information cut through the heart of the company’s argument.

The defense had argued that no one, including the Williams couple, had ever complained about Carter’s farm. “Joey Carter’s farm is immaculate,” defense attorney Mark Anderson told the jury. “It is exemplary. It is not a nuisance.”

But the undisclosed document from 1985 showed that three Duplin County neighbors, although not the Williamses, did indeed complain about Carter’s expansion of his hog farm. The lagoon, the USDA report read, would be 850 feet from one home, and 1,500 feet from 11 others. One neighbor had planned to sell residential lots on land he owned; the lagoon would be adjacent to the acreage.

“Discussed the problems that might be caused by neighbor’s complaints in future with Joey,” an entry dated March 4, 1985, reads, “but he is determined to proceed.”

On May 7, 1985, an entry reads, “Joey said he has heard that his neighbors plan to sue him for damaging their property values.” 

This document would have presumably been included in public records requests filed by Wallace and Graham, who represented the plaintiffs. The request was filed in May before the trial started with Duplin County, state and USDA officials, who all stonewalled it. 

Last week, Judge Britt forbade those associated with the case — attorneys, potential witnesses, and even court personnel — from speaking with the media about any information that is not part of the public record. The intent, Britt said in his order, was to avoid tainting future jury pools with “extrajudicial” information.

The gag order extends to all future trials associated with the nuisance cases.

The third trial involves neighbors of several Pender County operations that house more than 10,000 hogs. Jury selection begins July 10.