Preview of Fourth Circuit Court of Appeals

A Preview of the Upcoming Appeal of Nuisance Lawsuits

 It’s been nearly two years since a Wake County jury delivered its first verdict in the nuisance lawsuits against Murphy-Brown. That verdict, a $50 million judgement, will be the subject of an appeal heard by the U.S. Court of Appeals for the Fourth Circuit in Richmond on Friday, January 31.

 We’ve been waiting for this day.

 North Carolina hog farmers — along with their family, friends and neighbors who depend on a strong pork industry — want the opportunity to correct a series of mistakes made by the 88-year-old trial judge.

 The appeals court will finally hear oral arguments from Murphy-Brown. In its written appeal, the company identified seven critical mistakes that influenced the outcome of the cases.

 “These errors took a costly toll,” Murphy-Brown argues. “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.

 Murphy-Brown is asking the appeals court to consider the following options: reverse the punitive damages award, dismiss the case, or order a new trial under different circumstances (excluding improper evidence and testimony, etc.).

 Who will hear the arguments?

Arguments will be heard by a panel of three judges from the U.S. Court of Appeals. The identity of the panel will remain confidential until the day of the arguments.

 How long will it last?

Each side will have 20 minutes to present their case, beginning with Murphy-Brown. The court will post a recording of the oral arguments on Monday, February 3. 

 When will the court issue a ruling?

No time soon. The court typically issues a ruling within three to six months. The remaining nuisance lawsuits, including future planned trials, will remain on hold until the appeals court issues its ruling.

 Previous rulings by the Court of Appeals

This won’t be the first time the U.S. Court of Appeals for the Fourth Circuit has considered issues related to these nuisance lawsuits. In 2018, it was asked to overturn a gag order imposed by Judge Earl Britt during the second trial that prevented Murphy-Brown and others from commenting on the lawsuits.

 In that case, the appeals court strongly condemned the judge’s actions in overturning his decision.

 “The mischief of the trial court’s action should be apparent,” the court stated. “The gag order has already inflicted serious harm on parties, advocates, and potential witnesses alike. It has muted political engagement on a contested issue of great public and private consequence. It has hamstrung the exercise of First Amendment rights. Even in short doses, these harms are hostile to the First Amendment.”

 While that outcome was favorable to hog farmers, each appeal has its own unique set of legal issues that must be considered. We do not know which judges will hear this appeal or how the court may rule.

 Want to attend?

Oral arguments will be heard by the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia on Friday, January 31. Proceeding will begin at 8:30 am in Room 412. The Court of Appeals is located in the Lewis F. Powell Jr. Courthouse at 1100 East Main Street.  

Misleading Jurors & Spinning Tales in the Courtroom--What's Not Being Told in the Hog Nuisance Cases

The lawyer suing Smithfield Foods has a genius for creating villains in courtrooms – and he’s painted a picture of Smithfield Foods as an arrogant corporation driven by greed. For example, in the first trial Michael Kaeske told jurors Super Soils, which is one way to treat waste, was a ‘magic wand’ to cure all the problems caused by hog farms, and then he asked Smithfield executive Greg Schmidt, Why didn’t you implement Super Soils?

Greg Schmidt: It wasn’t economically viable.

Michael Kaeske: Did Smithfield do a study to determine how much it would cost to put Super Soils on its farms?

Greg Schmidt: No.

Kaeske made Smithfield look like a villain – it claimed Super Soils wasn't economically viable but it hadn’t done a study to determine what they cost. But Kaeske left out part of the truth. Smithfield didn’t do a study itself – instead it had funded a study by scholars at North Carolina State University to determine whether Super Soils was cost-effective. The research showed it wasn't. But Kaeske never mentioned that.

In the fourth trial, repeating the same point, Kaeske drew a bead on Wendell Murphy. Wendell Murphy, he said, was rich. He was the father of modern hog farming in North Carolina. And when he served in the state legislature he’d passed bills to make himself and other hog farmers wealthier. What did Kaeske leave out this time?

Wendell Murphy grew up on a farm in Duplin County, graduated from North Carolina State University in 1960, then returned to Rose Hill to teach high school. He also started raising hogs the old-fashioned way, outside in a field. Then, in 1969, a hog cholera epidemic hit and the Department of Agriculture destroyed his 3,000 pigs. He picked himself up, started over, and later he was one of the first farmers to raise hogs indoors.

Thirty-six years ago, in 1982, Wendell Murphy was elected to the State Legislature. He left the legislature twenty-six years ago in 1992. Michael Kaeske attacked Murphy for four bills that were passed decades ago. And Kaeske left out a key fact: “Those laws – adopted in the 1980’s and early 1990’s – often passed without a dissenting vote,” the News and Observer reported. Democrats voted for them. Republicans voted for them. The Secretary of Agriculture – a Democrat – supported them. The Governor – a Republican – supported them. For a simple reason: Tobacco was waning as a crop and the bills helped families continue to farm by raising hogs and chickens and turkeys.

Michael Kaeske didn’t mention any of that. In a courtroom, where the goal’s a fair verdict – based on the truth – Michael Kaeske spun a tale to mislead jurors.

This is the part 3 in a 6 part series about the hog nuisance cases.

Reviewing the First 4 Hog Nuisance Trials--What You Need to Know

 As we’re waiting for the fifth trial to begin, let’s re-examine the first four trials.

Fact #1: The trials didn’t happen because an irritated neighbor drove to a local lawyer’s office, sat down and said, My neighbor’s hog farm’s a nuisance. I want to sue him. Instead, a group of lawyers came to North Carolina, knocked on hog farmers’ neighbors’ doors and said, ‘We’ll sue the hog farmer. We’ll pay the bills. You sign here and be a plaintiff. And if we win you’ll get part of the money.’ It proved to be an enticing offer. It’s why we have these lawsuits.

Fact #2: Oddly, no juror heard about that fact during the trials. The lawyers for the plaintiffs asked the judge to instruct Smithfield’s lawyers not to mention it to jurors. And the judge agreed. Why did that matter?During the Joey Carter farm trial,four of Carter’s neighbors testified for him. One told the jury: “It’s not what they say. There is not an odor, and I live so close to the farm I can hear the feeders run out in the hog house.” Another said: “We live next door. My wife and kids, we walk on the farm and near it. There’s no issue, no concern, no odor.” A third testified what was being said about Joey Carter’s farm did not make sense. And a fourth testified: “I hate to feel like an innocent man is going down.”

A fifth witness, the local postwoman, told the jury, “I can’t tell you the last time I’ve smelled odor from the farm.” Day in and day out, that postwoman had delivered mail to Joey Carter’s farm – and she couldn’t recall the last time she smelled odor.

In addition, a respected scientist who’d done studies at Joey Carter’s farm had found no objectionable odor.

Two neighbors – who signed up for the lawsuits – testified against him.

But neither plaintiff was asked, You lived beside that hog farm for years but didn’t complain – then a lawyer knocked on your door and said, ‘We’ll sue the hog farmer. Join us, we’ll pay the bills and you could make money.’ Is the reason you’re suing to make money?

Wouldn’t that have gone straight to the heart of plaintiffs’ testimony? And their credibility? But no juror ever heard that question asked – or knew even it existed – because the Judge had ruled jurors shouldn’t be told that fact.

Part 2 of a 6 part series