A federal appeals court judge’s remarkable speech is the latest surprise in NC’s hog nuisance lawsuits

Last Friday morning in Richmond, Va., midway through oral arguments in the hog nuisance lawsuit of McKiver v. Murphy-Brown, Fourth Circuit Court of Appeals Judge J. Harvie Wilkinson III removed his glasses and briefly rested his cheek on his hand, as if burdened by the content of thousands of pages of case documents he had read.

“What troubled me as I looked at the complaint and at trial [transcripts],” Wilkinson began, comments that in retrospect, were stunning for their empathy. “Yes, the hog farming certainly provides many jobs in eastern North Carolina. It’s important to the economy and national food supply. But it’s harmful to the people who live nearby. It’s got to be environmental harmful to the waterways. Nobody wants another Flint, Michigan. It can’t be good for children’s respiratory systems.”

Wilkinson, an avuncular 75-year-old who was appointed to the bench by President Ronald Reagan, seemed to not only look at Murphy-Brown’s attorney, but also to look through him. He looked to the back of the packed courtroom, where on one side of the aisle assembled several lawyers, hog farmers, including farmer Joey Carter and members of the N.C. Farm Bureau and N.C. Pork Council had assembled; and on the other, environmental advocates, more lawyers and Elsie Herring of Duplin County, one of 500 plaintiffs suing the world’s largest pork producer for nuisance.

Wilkinson went on: “And the inhumanity to the animals and the fatality rate. Some people may think [pigs] are ugly and they can treat them the way they want.”

He was not finished: “If this were my property I’d be outraged at some of these conditions that were allowed to persist. Less fortunate citizens have property rights, too. They have a right to good health and enjoyment of their property. If this were some McMansion surrounding hog farming operations, or houses of the affluent and more politically powerful were here, wouldn’t these conditions have been cleared up sooner rather than later? That is my problem.”

That has been the plaintiffs’ central, if tacit, point for the nearly six years since the nuisance suits were originally filed in federal district court. All of the plaintiffs are modest of means, politically disadvantaged and Black. They have had to fight and overcome centuries of discrimination to own and keep their land.

And the plaintiffs’ enjoyment of their property, as well as its value, have been harmed by Murphy-Brown’s industrialized hog operations, five juries have determined. The company is responsible for the flies and stench emanating from the spray fields and the open-air pits of feces and urine; the truck traffic rolling by homes in the middle of the night; the buzzards that flock to rotting carcasses in the dead boxes.

Over the last two years, juries at the federal district court level have awarded 34 eastern North Carolina plaintiffs $97.9 million in compensatory and punitive damages for nuisance claims. 

Murphy-Brown appealed all of the verdicts. And on Friday, a company lawyer focused on several rebuttals in the first case, arguing them before a three-judge panel of Wilkinson, G. Steven Agee, appointed by President George W. Bush, and Stephanie Thacker, an Obama appointee. Those arguments included:

• Its contract farmers are “indispensable parties” to the lawsuits, meaning that their participation is required in rendering a judgment.
• The finances and the pay of company executives for Smithfield Foods (owner of Murphy-Brown) should not have been allowed at trial.
• The 2017 North Carolina Right to Farm Act should be reinterpreted to retroactively nullify the plaintiffs’ right to sue for nuisance.
• The testimony of plaintiffs’ expert witness Shane Rogers about odors and the presence of hog fecal bacteria on the neighbors’ houses should have been struck.

The plaintiffs’ legal strategy has intentionally focused on suing Murphy-Brown and Smithfield, not the farmers. Through its contracts with farmers, Murphy-Brown dictates every aspect of the operations, down to the amount and type of feed the pigs receive. And the company, not the farmers, has the money to pay damages.

But Murphy-Brown attorney Stuart Raphael argued that because of the nuisance suits’ verdicts, the company has been forced to remove its pigs from the offending farms. “The contract farmer has the responsibility to control the odors,” Raphael said — even though the farmers can’t upgrade their waste management systems without company permission.

However, in at least one case, Murphy-Brown has continued to pay Kinlaw as if he had pigs, according to a story by Barry Yeoman in The Nation.

“Whatever happened to Kinlaw was an independent decision by Murphy-Brown,” Wilkinson countered. “They could have taken the pigs for a number of reasons other than a verdict.”

(And in a separate ongoing lawsuit, Murphy-Brown is suing its insurance companies because they are refusing to cover the legal damages incurred by the nuisance litigation. The insurers claim that the company’s waste management practices caused the damage.)

“Murphy-Brown’s contractual language can require technological advancements,” Wilkinson added. “Can you assert control and use it to your advantage and then back away from the control when it comes to a verdict? I’m just wondering whether you’re wearing two masks.”

In fact, Murphy-Brown has been selective about when and how it depopulates its farms. The company has allowed at least one of its other operations to violate the terms of its permit — and even environmental law — for years before removing its pigs. 

Lanier Farm in Jones County had at least a six-year history of flagrantly violating the terms of its permit, according to state records. Murphy-Brown knew of the violations, and over time, even sent company representatives to the farm.

Finally, in 2018, after Lanier discharged more than one million gallons of feces and manure into a tributary of the Trent River — and tried to mislead state investigators about its misconduct — Murphy-Brown, facing Clean Water Act violations, pulled the pigs from Lanier.

In federal district court, Murphy-Brown tried to convince the juries that they are a small company, separate from the corporate billion-dollar behemoth Smithfield and its Chinese corporate behemoth, the WH Group. Raphael made the same case before the three appellate judges. “We objected to Smithfield’s and WH Group’s finances as evidence of ability to pay for upgrades,” he said.

The plaintiffs have consistently argued that Murphy-Brown and Smithfield are in effect one and the same, their corporate futures and profits intertwined. For example, Murphy-Brown farms post signs at the end of their driveways that read “Smithfield.” 

And in 2015, the Sampson Independent reported that “Murphy-Brown will soon be no more, at least in name. … While the company has been part of Smithfield since its inception 15 years ago, the livestock production subsidiary now also bears its parent company’s name — specifically Smithfield Hog Production Division.”

“We’ve always been part of Smithfield,” the paper quoted Don Butler, vice president of government relations and public affairs for Smithfield Hog Production Division, formerly Murphy-Brown, as saying. “We’re just leaving the Murphy-Brown name behind. It’s part of a larger Smithfield initiative called ‘One Smithfield.’”

Wilkinson’s patience, though, wore thin at the introduction of the executive salaries, which, including WH Group CEO Wan Long, totals more than $300 million. “What is their relevance?” Wilkinson said. “That’s like throwing a dead rat on the trial desk.”

Raphael also claimed— although the judges seemed unimpressed by his argument — that the North Carolina Right to Farm Act should apply retroactively, which would nullify all of the nuisance suits. When the bill was introduced on March 23, 2017, it contained language that if it became law, it would apply to nuisance suits retroactively.

But the final version applied only to future nuisance cases, “commenced or brought on or after” its effective date. The law did not affect those cases already filed or pending in federal court.

Murphy-Brown unsuccessfully petitioned the federal district court to enact a “clarifying amendment.” Applying the law retroactively doesn’t change the substance, company attorneys claimed, but only clarifies the intent. “It gives further insight into the way the legislature intended the law to apply from its original enactment.”

Plaintiffs’ attorney Tillman Breckenridge was also subjected to legal grilling, particularly in regards to the qualifications of the plaintiffs’ expert witness, Shane Rogers. 

A former EPA environmental engineer, Rogers testified in all five trials that odors can travel on air particles. Since particles of Pig2Bac, a marker for hog fecal bacteria, were detected on the outside of some neighbors’ homes, it was likely that odors could be present.

Murphy-Brown countered at trial that since Rogers was not an odor expert, he should not be allowed to testify on the matter. The company’s own expert witnesses rebutted Rogers’ claims, but Judge Earl Britt more tightly controlled their testimony.

“Pigs stink. Everybody knows this,” Judge Agee said. “But the expert witness was leading the jury. … There was no scientific testing or peer-reviewed articles. The inequity causes me concern.”

The Fourth Circuit Court’s decision could affect the current cases under appeal, as well as serve as a bellwether for the 20 more — and their 500-some plaintiffs — that have yet to be heard in federal district court. The opinion is not expected for several weeks, if not months.

This post has been updated to note that Joey Carter was in the audience, but Billy Kinlaw was not.

Disclosure: The North Carolina Justice Center filed a brief in support of plaintiffs suing Smithfield/Murphy-Brown for nuisance. NC Policy Watch is a project of the Justice Center, but had no role in the decision to file the brief nor its contents. In order to maintain its editorial independence, Policy Watch has not read the brief and has not communicated with anyone at the Justice Center about it.