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.  

Murphy-Brown appeal highlights seven errors in nuisance lawsuits

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.

Positive Outcomes Have Eluded Farmers in Recent Lawsuits--What Went Wrong?

When lawyers went door to door signing up clients so they could sue Smithfield Foods two of Joey Carter’s neighbors signed up.

At the trial four other neighbors of Joey Carter 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.

So how did Joey Carter’s farm end up on the losing end of the lawsuit?

First, the jury never heard the respected scientist’s testimony about odor. The lawyer suing Smithfield Foods filed a motion to block her testimony and the judge agreed.

Second, the jury never heard about lawyers promising the two neighbors who sued Joey Carter that they’d make money if they won the lawsuit. The lawyer who filed the lawsuit made a motion to block that testimony as well and the judge agreed.

Third, the jurors were never allowed to visit Joey Carter’s farm because the judge blocked that too.

And, finally, at the trial the jurors were told the lawsuit wasn’t against Joey Carter – it was against Smithfield Foods. That statement was technically true. But the hard fact is the jury’s verdict – it awarded the two people who sued $25 million – put Joey Carter out of business.

You have to wonder: How could these things happen in an American courtroom? They shouldn’t. But that’s why Americans have the right to appeal unfair verdicts to higher courts. And that’s where the road to justice leads for Joey Carter: Straight to the Court of Appeals.

This is the sixth part to a six part series.