News Article

Murphy-Brown appeal highlights seven errors in nuisance lawsuits

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If you have been following the events of the nuisance lawsuits involving North Carolina’s hog farms, you know that many questionable decisions were made in the courtroom. You know that there were many mistakes and a whole lot of heartache. Murphy-Brown has filed an appeal that highlights seven serious errors made by the trial court. Those arguments include:

 Punitive damages should not have been allowed. NC law says a plaintiff “must prove the existence of an aggravating factor by clear and convincing evidence” to be awarded punitive damages. Aggravating factors include fraud, malice, and willful or wanton conduct, which means the “conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damage, or other harm.”

 The standard for imposing punitive damages requires evidence of even “more than gross negligence.” The plaintiffs in this case fell far short of reaching that high bar. Murphy-Brown noted that it was not aware of any alleged problems at Kinlaw Farm and took proactive steps on the farm to reduce odors. In addition, the plaintiffs did not prove any misconduct by Murphy-Brown.

 Improper evidence was allowed, and the court failed to separate the trial into two phases. The district court made two important mistakes. First, it allowed plaintiffs to introduce “irrelevant and highly prejudicial evidence” relating to profits and executive compensation at Smithfield Foods and WH Group, the grandparent company of Murphy-Brown. Then, the court compounded that mistake by refusing Murphy-Brown’s request to divide the case into two phases: one dealing with the question of whether the farm posed a nuisance, then a second phase (if necessary) focused on the issue of punitive damages.

 “Plaintiffs were also allowed to emphasize that WH Group is based in China, and to suggest that Murphy-Brown made profits that were sent overseas. That appeal to raw prejudice sought to inflame the jury. And it worked,” Murphy-Brown says.

 With regard to the court’s failure to hold a separate phase for punitive damages, Murphy-Brown noted North Carolina’s mandatory bifurcation statute, “which ensures that a jury does not hear inflammatory evidence supporting punitive damages until after it has found liability and set compensatory damages.” (Bifurcation is the legal term for separating a trial into two phases.)

 Notably, when a substitute judge presided over the fourth trial, the case was bifurcated – and no punitive damages were allowed.

 Plaintiffs’ expert opinions were admitted, while Murphy-Brown’s were excluded. The law says that testimony must be “based on sufficient facts or data” and derive from “reliable principles and methods” that “the expert has reliably applied . . . to the facts of the case.”  Murphy-Brown argues that the court “failed to apply those principles correctly or evenhandedly.”

 The plaintiffs’ star witness was a professor from New York named Shane Rogers. He conceded he is not an odor expert but was allowed to testify about the presence of odor at the plaintiffs’ homes “based on an untested and unreliable methodology.” Murphy-Brown argues that “because Rogers’s methodology was untested and unreliable, his testimony should have been excluded in its entirety.”

 On the other hand, the court excluded an extensive odor study by a recognized authority on environmental odors: Dr. Pamela Dalton, a Murphy-Brown witness who relied on a published, peer-reviewed protocol and nationally-accepted tool to measure odor. Dalton has a doctorate in experimental psychology, a master’s degree in public health, and is a researcher at the world’s only independent, non-profit scientific institute dedicated to research on the senses of taste and smell.

 Dalton conducted a thorough, multi-week study to monitor odor frequency and intensity around Kinlaw Farm. Her study showed that any odor the plaintiffs experienced from the farm was minimal: only 3.1% of farm odors (66 out of 2109 total readings) were detected at an intensity that could be considered elevated and objectionable. In studies she conducted at other North Carolina hog farms involved in these lawsuits, Dalton found results that showed even less odor intensity.

 As a result of this uneven treatment, the jury was deprived from hearing objective odor evidence that favored Murphy-Brown and wrongly allowed to hear testimony from only the plaintiffs’ expert on the central issue of odor.

 The district court erred in concluding that Kinlaw Farms is not a necessary and indispensable party. These lawsuits were filed against Murphy-Brown and did not include the family farmers who own and operate the farms in many of the cases. Excluding these farmers was an intentional ploy by the plaintiffs to keep the cases out of state court. When this issue was raised with the court, it concluded that the Kinlaw Farm was “not an indispensable party required for the case to proceed.”

 And, yet, there are no hogs on Billy Kinlaw’s farm today. After a jury declared his Bladen County farm a nuisance, Murphy-Brown could not continue to place animals at this facility, to protect itself and the farmer amid the ongoing litigation. There is simply no denying that this case had a direct bearing on the farm’s continued viability.

 The appeal goes on to highlight four additional errors:

 The jury was improperly allowed to consider damages beyond diminution in property value. The Right to Farm Act, as clarified in 2017, limits nuisance damages to the loss of property value. (And the plaintiffs claimed no loss of property value.)

 The court rejected Murphy-Brown’s statute-of-limitations defense. NC law imposes a three-year statute of limitations on nuisance actions. A claim for “continuing” nuisance — when a single event causes alleged continuing damage — must be brought within three years of the original event causing the harm. A claim for a “recurring” nuisance — when periodic acts allegedly cause repeated injuries — can be brought more than three years after the first occurrence, but damages are limited to a three-year window preceding the suit. The jury was not given the opportunity to determine if the claims in this case involved a continuing or recurring nuisance. 

 Murphy-Brown notes that the plaintiffs successfully argued to the court that the nuisance was recurring, then “changed their tune at trial, telling the jury that the nuisance was constant and permanent.” It highlights testimony from plaintiffs such as Daphne McKoy, who said the conditions have “always been the same.” Even Michael Kaeske, the Texas trial lawyer representing the plaintiffs, said in his opening argument that “odor is a relatively constant nuisance.”

 The district court wrongly predicted that North Carolina would adopt “vicarious liability” for nuisance. This is a somewhat complicated legal issue relating to the court’s instructions to the jury. Essentially, the court was wrong to tell the jury that Murphy-Brown could be “vicariously liable” for conduct at Kinlaw Farm that it had “reason to know” was likely to become a nuisance.

 In addition to the Murphy-Brown appeal, the NC Pork Council, NC Farm Bureau and other agricultural groups filed a brief that highlights additional issues that call into question the “overall fairness of the trial, which does not give the appearance of having been conducted on a level playing field.” Specifically, they highlight the location of the trial and the court’s refusal to allow jurors to visit the Kinlaw Farm themselves.

 Read more about what happens next.

The N.C. Pork Council recently published a comprehensive update on the nuisance lawsuits and the appeal filed by Murphy-Brown with the U.S. Court of Appeals. NC Farm Families is providing a condensed summary of that article to keep our farm families informed about the status of the lawsuits and the arguments in Murphy-Brown’s appeal. You can read the entire article in the NC Pork Report.

All eyes on Richmond: An update on Murphy-Brown’s appeal of nuisance lawsuits

 North Carolina’s hog farmers came under a vicious, well-financed attack by class-action law firms in recent years. Five cases went to trials, with negative – and unfair – outcomes in each. Now, the first trial, which involved the Kinlaw Farm in Bladen County, is making its way through the appeals process at the U.S. Court of Appeals for the Fourth Circuit, based in Richmond, Va.

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 The first trial verdict must be reversed. That’s the message from defendant Murphy-Brown in a persuasive 58-page brief that outlines, in meticulous detail, the numerous and significant errors made by W. Earl Britt, the judge who presided over the case.

 The appeal makes clear how critical the appeals court’s review will be.

 “This suit is the tip of a spear aimed at North Carolina’s agricultural economy,” the appeals brief says. “… A great deal depends on the outcome of these coordinated lawsuits, including the livelihoods of many in eastern North Carolina’s predominantly agricultural communities.”

 Indeed, it does.

 The appeals court filings — and accompanying briefs filed by the NC Pork Council, NC Farm Bureau, and other agricultural groups — outline how the plaintiffs received unfair jury decisions by claiming that hog farms near their rural North Carolina homes are a nuisance.

 The appeals note that the plaintiffs did not seek any injunctive relief — that is, they did not ask the court to make any changes on the farms. They just want money, and they have their sights set on Murphy-Brown, the state’s largest hog producer and a division of Smithfield Foods.

 Murphy-Brown has identified seven critical mistakes that occurred during the trial and by the judge that influenced the outcome of the cases. Those mistakes can be read here.

 “These errors took a costly toll. Deprived of the opportunity to resolve factual disputes, improperly exposed to prejudicial evidence, misled by one-sided expert testimony, and misinformed about the law, the jury awarded ten plaintiffs more than $50 million — all for the alleged annoyance and discomfort of living near a farm that opened nearly 25 years ago,” the court filing says.

 The brief filed by the NC Pork Council, NC Farm Bureau and other agricultural groups raises concerns about additional issues that call into question the “overall fairness of the trial, which does not give the appearance of having been conducted on a level playing field.” Specifically, they highlight the location of the trial and the court’s refusal to allow jurors to visit the Kinlaw Farm themselves.

 Through five trials, held from April 2018 to March 2019, juries awarded 36 plaintiffs a total of $550.5 million. (The awards were later reduced to approximately $98 million due to a state law that places a limit on punitive damages.)  Those verdicts have put family farmers out of business and taken a toll on our rural communities.

 What Happens Next

Murphy-Brown has asked the U.S. Court of Appeals for the Fourth Circuit to consider the following options:

 (1) Reverse the punitive damages award because there was insufficient evidence to allow punitive damages, and order a new trial limited to liability and compensatory damages;

 (2) Dismiss the case because (a) damages should have been limited to the plaintiffs’ loss of property value, of which none was presented, and (b) the trial did not include Kinlaw Farms, an indispensable party, thereby forcing the plaintiffs to refile their case in state court; or

 (3) Order a new trial that (a) excludes the testimony of plaintiffs’ expert Shane Rogers and permits the excluded testimony of Dr. Pamela Dalton; (b) excludes improper evidence relating to the profits of Smithfield Food and WH Group, as well as the nationality of ownership; and (c) allows the jury to determine whether the claimed nuisance is continuing or recurring.

 Murphy-Brown has requested the opportunity to present its case in front of a Court of Appeals panel. At this time, no decision has been made about whether oral arguments will be made. If allowed, those arguments would not be made until December 2019 or early next year.

 There is no set timeline for when the Court of Appeals may ultimately decide this case. If oral arguments are presented, the court typically issues a ruling within three to six months. In the meantime, the remaining nuisance lawsuits – and future planned trials – are on hold.

 So, we wait. And we pray. And we hope that the appeals court will exercise wisdom and good judgment in reversing the many errors that were made in a Raleigh courtroom.  We will continue to stand by our family farmers and tell their side of the story.

The N.C. Pork Council recently published a comprehensive update on the nuisance lawsuits and the appeal filed by Murphy-Brown with the U.S. Court of Appeals. NC Farm Families is providing a condensed summary of that article to keep our farm families informed about the status of the lawsuits and the arguments in Murphy-Brown’s appeal. You can read the entire article in the NC Pork Report.

Firing back against another attack on the pork industry

Another media outlet — funded by activists who oppose animal agriculture — has taken aim at North Carolina’s pork industry. The Food & Environment Report Network (FERN) and The Guardian published an article from a freelance reporter decrying the relatively low number of complaints filed against North Carolina hog farms and implying that complaints had “vanished.” (The News & Observer and The Charlotte Observer subsequently jumped at the opportunity to run another negative article about hog farmers.)

The article reports that North Carolina received only 33 public complaints against livestock operations from 2008 to 2018, while other hog states registered “literally thousands” during the same time period.  

An interesting theory, perhaps, but one that is factually wrong.

State records, publicly available and posted online, show that there were at least 474 complaints in North Carolina during that 10-year period. Not 33.

That’s still fewer than a state like Iowa, which had 2,393 complaints (assuming that data is accurate) during those ten years.

A good reporter might ask “why is that?” and do a little digging. He might, for example, consider that Iowa has three times as many hog farms as North Carolina.

Or, a good reporter might explain that North Carolina has one of the nation’s most stringent regulatory programs for hog farms, including mandatory on-site inspections of every hog farm in the state — every year — to ensure they are complying with the rules and regulations.

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That means that, during that 10-year period, there were more than 24,000 on-site inspections of our hog farms. A good reporter might consider the idea that a rigorous inspection program leads to fewer complaints. Rather than attack state regulators, he might praise them. 

Instead, this freelance reporter jumps to his own conclusion and speculates that complaints simply vanish into thin air — despite no evidence to support that claim.

To bolster his argument, the reporter points to a sudden rise in complaints from November 2018 to April 2019.

The state received 138 complaints related to animal agriculture during that time-frame, resulting in 62 violations. Only 11 of those violations involved hog farmers. 

Two reactions:first, it’s worth noting that fewer than half of the complaints resulted in any type of violation. Farmers have often been upset about unfounded allegations that are made against them.

Second, if there were 11 violations against hog farms, that means there were 51 violations (82%) that involved something other than hog farming. So, why did the reporter direct his attack at hog farmers?

We all know the answer. Because hog farming is constantly in the cross-hairs. And activist organizations that want to do away with animal agriculture are often involved in directly funding this type of “reporting.” (Read more about that from the North Carolina Pork Council.)

The bias is clear.

Here’s one example: The article featured comments from Rene Miller, from Duplin County, who lives near a hog farm. Here’s what she says about living near a farm: “it smells like a body that’s been decomposed for a month.”

The reporter initially failed to mention that Miller is a plaintiff in the ongoing series of nuisance lawsuits filed against Murphy-Brown and thus had a clear motivation for making such outlandish, ridiculous and unbelievable comments.

But it sure did make a great quote! The Guardian actually used her quote as the headline for its story.

The reporter went on to dutifully highlight a litany of allegations against the pork industry, including unsupported claims of health issues and false accusations about the demographics around hog farms.  

The NC Pork Council provided detailed rebuttals to both “studies” — providing factual data about who lives near North Carolina hog farms and a report from a PhD that outlines serious problems with the health study mentioned in the article.

The reporter gave scant attention to those objections, mischaracterizing the Pork Council’s concerns and failing to explain why it believes the studies are flawed.

This type of reporting about our industry is disappointing, but not surprising. Our farmers have been under constant attack and there are no signs of it letting up. NC Farm Families will continue to stand up for our farmers and fight back against these blatant mischaracterizations of our industry.

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