The Pulse

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

By: - April 27, 2018 10:29 am
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.

[bctt tweet=”The $50m judgment carries not only tangible benefits but also symbolic ones” username=”NCPolicyWatch”]

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.

I sat across the aisle from the plaintiffs for part of the trial. Many of them, including the family matriarch, Joyce McKiver, age 85, brought seat cushions for the long, tedious days spent sitting in wooden seats. They were just everyday folks. They didn’t even know that they were living next to 15,000 hogs. They just knew that it stunk.

The plaintiffs had inherited their land and built their homes long before Kinlaw Farms moved in next door. Before Kinlaw Farms extended Pearl Lloyd Road and called it Porky’s Lane, where it dead-ends at the industrialized hog operation. A cornerstone of nuisance law is that the statutes should favor whoever had arrived first. But that provision and other nuisance statutes have been weakened or even dismantled by lawmakers cowed by industry pressure.

As Policy Watch reported last November,  over the past 15 years the American Legislative Exchange Council—a coalition of conservative politicians and large corporations and interest groups, including the National Pork Producers Council—has drafted model anti-nuisance laws for states to use. The point of these anti-nuisance laws is to thwart the very litigation that is unfolding in North Carolina. For example, Missouri tightened its anti-nuisance laws shortly after a jury awarded $11 million in damages to neighbors of industrialized hog farms.

Last year, over intense public opposition, North Carolina legislators passed a similar anti-nuisance law . (Gov. Cooper vetoed the bill, but lawmakers overrode it.) Now plaintiffs are limited in the amount of compensatory damages they can receive if they win a nuisance suit: only for the devaluation of their property, but not for any loss of quality of life.

Smithfield and the NC Pork Council, which represents the industry, lobbied for the bill, knowing these nuisance lawsuits — 26 in all — could some day go to court. However, the suits were filed two years before the bill was even filed. So per the industry’s wishes, the original bill contained language to make the statute retroactive in order to neuter those 26 lawsuits. But ultimately that retroactive provision was struck; the lawyers in the legislature knew it would have likely been challenged on constitutional grounds.

Undeterred, Murphy-Brown even petitioned the court after the law was passed, asking US District Court Judge Earl Britt to clarify the intent of the legislators: That they meant to make the law retroactive even if they explicitly struck the language to do so. Britt didn’t buy it.

[bctt tweet=”The trial tacitly raised environmental justice issues ” username=”NCPolicyWatch”]

The trial tacitly raised environmental justice issues that Murphy-Brown/Smithfield have repeatedly denied exist. Like many, but not all, of the neighbors of industrialized hog farms, the plaintiffs were Black. A federal environmental justice complaint, known as a Title VI, is still in mediation between other Black neighbors of huge farms and the state Department of Environmental Quality. (Title VI complaints can be filed only against recipients of federal funding; thus, DEQ, which regulates Animal Feeding Operations, is the target of the complaint.)

Those residents, unrelated to this case, are being represented by Elizabeth Haddix and Mark Dorosin of the Julius L. Chambers Center for Civil Rights. To illustrate how rough the NC Pork Council is willing to play, it had a hand in the UNC Board of Governors’ dismantling the UNC Center for Civil Rights, where Haddix and Dorosin used to work. It was during their tenure at the UNC Center where the two civil rights attorneys had taken on the hog industry. Then they were fired.

Murphy-Brown/Smithfield aplans to appeal yesterday’s verdict to the Fourth Circuit Court in Virginia. Within a month, another district court trial will begin, with a new pool of jurors. As part of a court agreement, attorneys for Murphy-Brown/Smithfield have chosen the parties in the next proceeding. The courtroom dynamic should be interesting. The plaintiffs are Black. The hog farmer is white and a retired police chief of Beulaville, in Duplin County.



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Lisa Sorg
Lisa Sorg

Assistant Editor and Environmental Reporter Lisa Sorg helps manage newsroom operations while covering the environment, climate change, agriculture and energy.