Judge tosses punitive damages claims in hog nuisance case

The punitive damages phase of the most recent hog nuisance trial against Smithfield Foods had lasted just a half-day before the judge pulled the plug.

Yesterday a jury found Smithfield had committed a nuisance against its neighbors of Sholar Farm in Sampson County and awarded eight plaintiffs compensatory damages. During the punitive phase, which began yesterday afternoon, plaintiffs’ attorney Michael Kaeske presented his case to the jury that Smithfield had acted with “willful and wanton disregard” for the neighbors — not just those on Herring Road, but throughout the state — and for more than 20 years.

But this morning, as Kaeske tried to enter seven exhibits into the record for the jury to review, Senior District Court Judge David Faber allowed only three to be admitted into evidence. Faber then ruled there wasn’t enough evidence for the jury to assess punitive damages. Case closed. The jury went home.

The purpose of punitive damages is to deter future bad behavior by the defendant — and that of other potential defendants who might consider comporting themselves the same way. Nine factors play into the question of whether to award these damages, including the duration of the misconduct and the defendant’s awareness of it.

During the opening statements for the punitive phase, held yesterday afternoon, Kaeske told the jury, backed by more than 20 years’ of articles, memos and documents, that Smithfield had known odor was a problem at its hundreds of farms. The company’s lobbyists and proxies at the NC Pork Council had helped craft pivotal legislation to give the industry even more power to site farms wherever it pleased and to undercut regulations on odor and water discharge.

“This is the way we finish the job,” Kaeske told the jury.

But the job now goes unfinished. Throughout the trial, Faber never hid his contempt for Kaeske’s argumentative style of questioning. But yesterday, the judge sighed, grumbled and told the courtroom that the case needed to end soon. Faber disallowed any mention that Smithfield is owned by a Chinese conglomerate; nor could Kaeske discuss the ample salaries of Smithfield executives. Kaeske had presented this information in previous trials to prove that Smithfield could well afford to upgrade its waste lagoon and sprayfield technology.

“Those are emotional arguments,” Faber said, dismissing Kaeske’s request.

Jim Neale of McGuireWoods, representing Smithfield, objected to many of Kaeske’s statements. In fact, Neale argued, unsuccessfully, that the word “Smithfield” should even be uttered because technically the Sholar Farm is owned by Murphy-Brown. However, Murphy-Brown is wholly owned by Smithfield — and, even the judge agreed, that fact had been central to the first phase of the case.

To underscore the Smithfield-Murphy-Brown connection, Kaeske asked his first witness, Don Butler, a former director of Smithfield Foods, about the signage in front of each farm. Yes, Butler said, Smithfield had replaced all the signs that read “Murphy-Brown” or “Carroll’s” or any of the companies it had bought. Now all of the signs say “Smithfield.”

And so on, for more than two hours of objections, overrulings and sustainings, until the judge, jury and courtroom observers were exhausted.

This morning, Judge Faber unveiled a prewritten statement as he called off the punitive phase of the case. No amount of Kaeske’s protestations changed the judge’s mind. By 11 o’clock, the jury had been sent home.

The next case, also overseen by Judge Faber, is scheduled for January.