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.

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.

Smithfield Trial: The Rest of the Story

After reading the transcript of the trial I thought, They were in a trap before the first witness spoke a word.The roots of the lawsuit against Smithfield Foods run back over five years to when a pair of out-of-state lawyers, Charles Speer from Kansas City and Richard Middleton from Savannah, saw a way to make money by suing North Carolina hog farmers.To file their lawsuits Speer and Middleton needed clients. So, with the help of anti-hog farming groups, lawyers from their firms knocked on doors of farmers’ neighbors, saying, ‘Sign here, we’ll file the lawsuit, we’ll pay the bills, and if we win you’ll get part of the money.’It worked. They signed up hundreds of clients.They then partnered with a North Carolina law firm, Wallace and Graham, and filed their lawsuits. But, not long after that, a state judge sent Speer and Middleton packing, adding he didn’t ever want to see them in his courtroom again. The judge handed the lawsuits (and the clients) to Wallace and Graham which then partnered with a law firm from Texas.Earlier this year, before the first ‘nuisance’ trial started, the lead lawyer from Texas asked the judge to instruct Smithfield’s lawyers not to mention Speer and Middleton to the jurors. And the judge agreed. So, Smithfield couldn’t tell jurors about lawyers filing lawsuits to make money.As soon as the trial started the plaintiffs’ lawyer, Michael Kaeske, began hammering Smithfield Foods, telling jurors Smithfield was a big corporation with a lot of money and if it had just spent $500 million it could have cured the problems with odor on hog farms across North Carolina. Why hadn’t Smithfield done that? The answer was simple: Greed. Michael Kaeske made Smithfield Foods into a villain.And when the trial ended that was the picture the jury had: Smithfield was a greedy varmint and Michael Kaeske’s clients were long-suffering victims.No juror ever heard the rest of the story. Because no lawyer could ask a plaintiff: You lived beside Billy Kinlaw’s hog farm for 18 years and never complained once about odor – until those lawyers from Missouri and Georgia knocked on your door and said you could make money if you joined their lawsuit. Was that a coincidence?The jurors didn’t even know that the lawyers standing in front of them, suing Smithfield Foods, had asked the judge to keep that fact from them.Often, at the end of a trial, a jury has to answer a straightforward question: Who’s the villain? Michael Kaeske, free to say pretty much whatever he wanted about Smithfield Foods, turned it into a villain. And Smithfield’s lawyers, with their hands tied, couldn’t tell the rest of the story.