Hog lawsuitappeals filed

By: Alan Wooten - Bladen Journal

ELIZABETHTOWN — Hogs are being pulled from contract farms of Smithfield Foods that have lost nuisance lawsuits, appeals of those three litigations are underway and the next case to be tried has been pushed back.

The verdicts reached so far have all favored plaintiffs represented by Texas lawyer Michael Kaeske. Murphy-Brown, a subsidiary of Smithfield and its Chinese conglomerate parent WH Group, was the defendant in cases involving Kinlaw Farms of the White Oak community, the Joey Carter Farm in Beaulaville and Pender County farms owned by Elizabethtown-based HD3 Farms.

Juries awarded $549.25 million in damages, though the amounts were capped by North Carolina law on punitive damages at $97.88 million.

Travis Brown, of HD3 Farms, spoke recently with Mike Davis of “Inside Agriculture,” a radio program on the Southern Farm Network. He described the aftermath of the rulings, with hogs removed, and how local economies are starting to feel the pinch.

“They pulled the hogs off of our farm, they pulled the pigs off of Joey Carter when he lost, they pulled the pigs off of Billy Kinlaw when he lost and that’s money that we’re not making,” Brown said. “That’s money that I can’t go spend it at Hog Slat and help support Hog Slat, or, that’s two less farms that a feed truck driver doesn’t have to run feed to. It just trickles down from one to the next.”

Brown told the radio host the same sentiments that agriculture leaders across the state have voiced — the rulings are opening the floodgates against farmers beyond eastern North Carolina.

“People can say because I smelled your farm four days out of 365, you’re a nuisance even though you haven’t violated any state or federal laws, you’re a nuisance to me and I’m going to shut you down,” Brown said. “That’s not right.”

Judge Earl Britt presided over each case, placing a far-reaching gag order on those involved. He was expected to preside over the next 23 nuisance cases involving Smithfield Foods as well, but an announcement earlier this month said he would not be on the bench for the next trial involving Sholar Farms of Sampson County, which was scheduled to begin Sept. 4.

The new date, tentatively, is Nov. 13, a source told the Bladen Journal.

His place is to be taken by Justice David Faber of West Virginia. Chief Judge Roger Gregory of the U.S. 4th Circuit Court of Appeals based in Richmond, Virginia, made the change. Patricia Connor, the court clerk, told The Associated Press that Gregory acted “at the request of the district to assist with its case load.”

It is unclear if the change in dates will provide a change in judges, possibly sending Britt back in. He was among three judges hearing a redistricting case Monday.

Sources of the Bladen Journal familiar with the situation but unauthorized to speak on it publicly have said, with appeals starting, the next case won’t go forward until all three appeals have been heard. The case involving Kinlaw Farms ended in the spring, but the appeal was held up awaiting the semi-retired Britt’s signature.

A letter has been sent to all contract farmers for Smithfield, including those not named in lawsuits. In it, the company says removing hogs was the verdict’s “highly unfortunate, but nonetheless unavoidable consequence.”

The letter is signed by Gregg Schmidt, president of Smithfield’s Hog Production Division. “We do not know what actions can be taken on the farm to protect both the farmer and our company from even more costly litigation,” it read.

Smithfield uses different farms for different stages in the growth cycle of the animals. It contractually dictates how farmers raise them, an element of why the company was sued rather than the farmers.

The farms named in the lawsuits have not violated state laws.

According to The Associated Press, Smithfield Foods hasn’t changed the dominant method of hog waste disposal since hog operations multiplied in the state in the 1980s and 1990s. The practice involves housing thousands of hogs together, flushing their waste into holding pits, allowing bacteria to break down the material, then spraying the effluent onto fields with agricultural spray guns.

Lagoons and spray fields are allowed by state regulations that get renewed every five years.

Kaeske says Smithfield doesn’t change the method here because pork productions costs are lower than in China, where WH Group is headquartered. In Missouri, Smithfield Foods has started covering its waste pits. There, the waste is dripped onto fields from low-mounted hoses on tractors.

The first of the 26 cases involved Kinlaw Farms, owned by Billy Kinlaw along N.C. 53 where about 15,000 pigs were being raised. The jury on April 26 said 10 neighbors were awarded $50.75 million, an amount reduced to $3.25 million by the punitive damages law.

The case of the Joey Carter Farm ended June 29, with plaintiffs Elvis and Vonnie Williams awarded $25.13 million — $65,000 each in compensatory damages, $12.5 million each in punitive damages. The punitive cap, $250,000 each, put their combined award from the jury at $630,000.

HD3 Farms, owned by White Lake businessman Dean Hilton, was involved in the third lawsuit, where a judgment of $473.5 million on Aug. 3 included $450 million in punitive damages and $23.5 million in compensatory damages. State law reduced the combined amount to $94 million. HD3 Farms has operations in Bladen, Sampson, Robeson, Scotland, Columbus, Duplin, Hoke and Pender counties, and its Greenwood 1 & 2 farms in Pender were targeted in the lawsuit.

North Carolina is the country’s second-leading pork producing state behind Iowa. Supporters of farmers and the industry have denounced several of Britt’s decisions, including not allowing jurors to visit hog farms in question. A Duke University law professor observing the trials is among those saying his rulings have been impartial.

Kaeske, owner of a law firm in Austin, Texas, is a former member of the Dallas law firm suing Chemours, the chemical plant at the Bladen-Cumberland county line that produces the GenX compound.

McGuireWoods represents Murphy-Brown. The firm has headquarters in Virginia, an office in Raleigh and internationally in Beijing and Brussels.

Next trial pushed back to Nov. 13

Alan Wooten

Bladen Journal

Alan Wooten can be reached at 910-247-9132 or awooten@bladenjournal.com. Twitter: @alanwooten19.

Alan Wooten can be reached at 910-247-9132 or awooten@bladenjournal.com. Twitter: @alanwooten19.