Federal hog trial #3: New tactics, nauseating details highlight closing arguments

After a long day working with patients, all Joyce Messick wants is to lay her burdens down at her doorstep, sit on her porch and drink a Sun Drop. But the stench of hog feces sometimes denies her that simple pleasure and chases her inside. “You never know when it’s coming,” she testified in federal court last month.

Messick and five of her neighbors along Piney Woods Road near Burgaw, in Pender County, had finally grown weary of the stench, flies in their homes, buzzards on their roof and the noise of “dead trucks” that haul away hog carcasses, often in the middle of the night. They sued Smithfield, the world’s largest pork producer. It owns the 7,400 hogs that are crammed into three concrete barns at Greenwood Farms. The billion-dollar company dictates the farm’s operations, including the management and design of the open-pit waste lagoons and sprayfields.

Yesterday, closing arguments in the third hog nuisance trial summarized four weeks’ of testimony that exposed not only the failures of Murphy-Brown to adequately manage some of its farms, including Greenwood, but also an anemic state regulatory system that fails to protect the environment and the rights of neighbors.

Jurors learned that industrialized hog farms can violate rules with impunity for years. They learned that Smithfield is loathe to spend money to upgrade its antiquated lagoon system. They learned the complaint system is no system at all. And yet neighbors are supposed to move or live with a problem not of their making.

With each trial, the stakes get higher for Smithfield. (A man identifying himself as an insurance representative for the company has been attending the proceedings.) Batting zero-for-two against plaintiffs’ attorney Michael Kaeske, the pork producer plans to appeal jury verdicts awarding millions of dollars in compensatory and punitive damages to two sets of neighbors.

And yesterday, Kaeske in his closing arguments deployed a tactic he had not used in these trials so far. He sowed in the minds of the jurors the amount of compensatory damages that his clients deserved: $2 million to $4 million each. He based the figure, he said, on “the costs to prevent the harm” — to upgrade the waste systems at Greenwood Farms.

This was a bold move, and one to which Smithfield attorney Jim Neale vehemently objected.

“Overruled,” responded US District Court Judge Earl Britt.

These figures are significant because if the jury awards punitive damages — those that punish a defendant for willful or wanton disregard, malice and/or fraud — by state law the amount is capped at three times the compensatory amount or $250,000 each, whichever is greater. The greater the compensatory damages, the greater the possible punitive award.

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“Smithfield and Murphy-Brown have plenty of money to fix this problem,” Kaeske told the jury after detailing the company’s billions in profits and $245 million paid in executive salaries over five years. “And they could still be enormously profitable. The purpose of punitive damages is to make it stop. That’s what this community wants. And the only way to make it stop is to speak in Smithfield dollars.”

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From the feeding of the hogs to the flushing of waste, industrialized hog farms are highly automated. Theoretically, a person could run an operation without ever stepping inside a barn. That’s how someone could miss the bones.

In 2016 and five times in 2017, Smithfield inspectors found bones in a barn at Greenwood Farms. When a hog dies prematurely — from illness, injury, heat — and the farmer neglects to go inside the barn to retrieve the body, the other hogs eat it. Except for the bones.

Over the past 20 years, Greenwood Farms, known in the trial as Greenwood 1 and 2, has had several owners and a long violation history with the state. Even Smithfield’s own audits indicated the farm has often performed far below expectations.

But conditions inside a barn aren’t regulated, testified Christine Lawson, program manager of Animal Feeding Operations at the Division of Water Quality. However, lagoon conditions are, and aerial photos shown at trial showed enormous areas of solid feces on the open pit’s surface, like crust on creme brulée. That’s a violation, but not one that usually shuts down a farm.

The state enacted its general permit system to control swine waste discharge in 1997, shortly before lawmakers passed a moratorium prohibiting new or expanded hog farms from using the open lagoon and spray field system. The moratorium hamstrings Smithfield from expanding, but it also functions as a de facto market control by deterring competitors from doing the same.

Enforcement of the permit system has been weak. State records show that many farms rack up penalties but stay in business. Franklin Lindsay Farm in Sampson County has been penalized three times since 2012, and fined upward of $20,000. It’s still operating.

Only after 12 years of chronic and severe violations, in February the state finally fined Lanier Farms in Jones County $64,000 for discharging million gallons of hog waste into the Trent River. Smithfield, potentially facing violations of the Clean Water Act, shut the farm down.

Greenwood Farms, too, has a lengthy violation history, which includes a $5,900 civil penalty assessed as recently as January. Even missing and falsified spray field records, allegedly altered by an employee of a contractor, had no major repercussions.

Lawson testified that she referred the case to the SBI two years ago, but never followed up to ask why there was no enforcement action. “I didn’t go digging up things I had no direct knowledge about,” she said.

(The SBI has recently brought charges in another case involving more than 30 farms whose lagoon sampling records were allegedly falsified by independent contractor Billy Houston. He makes his first court appearance in Duplin County today.)

Murphy-Brown attorney Jim Neale told the jury that citizens, regular folks like the plaintiffs, can formally comment on a general permit. However, that opportunity arises only every five years; the next permit renewal is in 2019.

“To think that six people from Piney Woods Road can get Lawson to change a permit,” Kaeske argued. “She came here to defend them [Smithfield]. That’s the system.”

In fact, the only way the state has been forced to strengthen its enforcement of swine farms has been through the legal system. In 2014, Elizabeth Haddix and Mark Dorosin, now of the Julius Chambers Center for Civil Rights in Chapel Hill, and Marianne Lado at Yale’s Environmental Justice Clinic filed a civil rights complaint with the EPA against the Department of Environmental Quality. That complaint stated that the general permitting process for industrialized swine operations disproportionately harmed communities of color.

The EPA accepted the case and referred it to mediation. Under the previous DEQ leadership, the talks stalled. But in May, under pressure from Cape Fear River Watch, DEQ, under Secretary Michael Regan, agreed to modify the permits to increase oversight and transparency, as well as to monitor air quality and establish a point system for violations.

During closing arguments, Neale accused Kaeske of putting the permit system on trial. Neale called the company “part of the solution.” It puts farms on probation, devises a plan of action and refuses to deliver more pigs until the problems are fixed. “We should commend Murphy-Brown,” Neale said. “Murphy-Brown tracks all complaints. Do we want to punish that conduct?”

Tracking complaints, though, doesn’t mean the problem is fixed. Kaeske showed the jury the company’s complaint tracking form. No changes were ever made, he said, even after Murphy-Brown received the complaints. It followed up on none of them

***

Before Neale began his final arguments, he carried four stacks of paper about 18 inches high to a table in front of the jury. “This is every word of the last four weeks,” Neale said. Most of the sheets were white; a very small portion were blue and represented Kaeske’s direct examination of his clients.

“The colored pages are hard to see,” Neale said. The plaintiffs’ testimony “is buried in an avalanche of distraction and manipulation.”

The point of Neale’s prelude was to demonstrate to the jury that the history of the farm, the company’s changing ownership, scientific testimony and old newspaper articles containing damning statements by Smithfield/Murphy-Brown officials were all long in the past and irrelevant.

Smithfield bought Murphy-Brown in 2000, although it retained many of the same executives. “Smithfield has been the biggest part of positive change, Neale said.”The plaintiffs want you to focus on the before. … The plaintiffs are manufacturing crises that don’t exist. Don’t be confused by that trick.”

The moratorium and other performance measures have cured the problems of the 1990s, Neale said. “A lot of those don’t exist today. It’s a different world with different regulations, different health concerns and risks.” Lawson of the Division of Water Resources had even testified that the permitting process is “the most extensive and robust in the nation,” a statement repeated on the DEQ website.

That contention is debatable, and even if it’s true, that doesn’t make the permitting process adequate for the nation’s second-largest pork producing state. Neale characterized the lagoon and spray system as “natural and effective,” with “natural, organic material coming-out of the lagoons. That’s why the state has permitted it.”

Neale’s portrayal of manure sounds like he’s describing granola bars. It is technically correct — manure is a byproduct of a natural process and does contain carbon, and thus is “organic.” But it’s hardly innocuous, and teems with bacteria and other pathogens. The manure and urine are sprayed on fields to fertilize crops, but those crops are turned into animal feed, not human food.

Neale said the state requires farms to prove the lagoons are working before spraying the feces-urine mix on their fields. “They have to take a sample and send it to the state lab for analysis,” Neale said.

But we now know that those samples can be falsified. As noted above, Billy Houston, an independent contractor providing this service to farms in Duplin and Sampson counties, faces 28 felony counts, filed by the SBI, related to allegations that he falsified sampling records.

There are no odor problems at Greenwood Farm, Neale said, because people continue to move to the neighborhood. And some of the plaintiffs have even moved back to their old stomping grounds. “They decided to live on Piney Woods Road,” he said, showing photos of porch swings and grills. “If there was a substantial and unreasonable interference to the enjoyment of their property, they would have looked elsewhere.”

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This statement ignores the lack of mobility that low- and even moderate-income people have. Many of the plaintiffs returned to family land they had inherited and lived on as children. It is part of their identity. The plaintiffs are not well-off, and they would have to sell their property — possibly for less than it would be worth, because of its proximity to the hog farm — and find another place to live. And in eastern North Carolina, it would be tough to find an affordable place completely isolated from a hog farm.

“Smithfield says ‘We won’t believe you because you still live there,’” Kaeske said in an impassioned rebuttal. “The idea that folks shouldn’t move back or not live there, it’s shameful.”

“Despite lobbyists, legislators and regulators, we still have jurors. That’s still how we get change,” Kaeske told the jury in the final minutes of the trial. “The legislature isn’t going to stop it. Regulators aren’t going to stop it. These six people are taking on a corporation for the benefit of everybody,”