Following arguments in a Richmond, Virginia, courtroom on Friday, three judges for the 4th U.S. Circuit Court of Appeals now have 90 days to issue their ruling on hog nuisance lawsuits in Bladen County and North Carolina.

The panel heard from counsel representing both plaintiffs and Murphy-Brown, the subsidiary of Smithfield Foods named as defendant in all five cases heard thus far. Judgments before punitive damage law kicks in from the juries has totaled $549,772,400. The punitive damage law reduces that amount, including compensatory amounts, to $97.9 million.

“Joyce McKiver, et. al. v. Murphy-Brown, LLC” was a compilation of all five cases. They included the Billy Kinlaw farm in White Oak, two farms in a case based in Pender County connected to White Lake commissioner and businessman Dean Hilton, two cases involving Joey Carter in Duplin County, and a case involving the Sholar Farm from Sampson County.

Michael Kaeske is the Texas lawyer representing plaintiffs in these and 21 more cases yet to be heard. Plaintiffs, carefully selected over years by Kaeske, number more than 500.

A report on Friday’s developments from the N.C. Pork Council, an advocate for farmers, said three rulings by Judge Earl Britt were predominantly in the crosshairs. He allowed testimony about compensation of Smithfield’s top executives; he permitted testimony for the plaintiffs about odor from an expert but did not allow a different expert to testify for the defendants; and the definition of “willful and wanton misconduct” as he applied it to cases.

A report on Friday’s activities from the Food & Environment Reporting Network, which appeared in major state newspapers whose opinion pages are of a liberal slant, led by saying the lawyers for Smithfield Foods “received a sharp lecture from the bench about environmental justice and economic fairness.” The story offered some detail only on Kinlaw’s operation, saying he in the 1990s bought property near the homes of McKiver and her neighbors and started a hog operation that was permitted to house more than 14,000 animals at a time.

Smithfield Foods owned the animals and contracted Kinlaw to raise them. The McKiver case and the other four are considered something of a litmus test among all 26.

Donald van der Vaart, in an opinion piece that appeared Feb. 8, 2019, in the Bladen Journal and earlier in The News & Observer, has pointed out a state law and how it may apply to the cases.

“In 1998,” he wrote, “armed with statutory authority from the General Assembly and technology being developed at N.C. State, DEQ wrote and promulgated rules to stop nuisance odors caused by hog farms. Thousands of farms were required, by mid-1999, to implement best management practices such as ensuring sprayed wastewater did not drift beyond the boundary of the animal operation.”

Unclear, as he also wrote, is “whether neighbors of the targeted farms complained to DEQ, whether DEQ sent their trained odor inspectors to investigate, whether the farms were cited for violating the rules, and whether additional controls were imposed on the farms to prevent odors.”

Lawyer Stuart Raphael, the published reports say, argued Friday that before these lawsuits, there were no complaints to Murphy-Brown, and no violation of North Carolina law.

Also up for debate Friday was Britt allowing information on top executives from Smithfield Foods to impact punitive damage amounts, and the connection to WH Group. That’s the company in Hong Kong of which Smithfield is a subsidiary. Judge G. Steven Agee said the latter wasn’t relevant; Judge J. Harvie Wilkinson III connected the executives’ salaries to the analogy of “throwing a dead rat on the table.”

Judge Stephanie Thacker, the Food & Environment’s report said, was largely silent during the proceedings. She’s an appointee of President Barack Obama, Agee was appointed by President George W. Bush, and Wilkinson was appointed by the late President Ronald Reagan.

The Pork Council’s report said “it was clear that the judges were well versed on the case and the issues at hand. They referenced the important role that our hog farms play in supporting the economy and providing food for our families. But there were also some incorrect assumptions made by the judges about what conditions are like on our farms.”

One of the early knocks on Britt, the octogenarian fedeal judge with ties to Robeson County, was not allowing the urban-based jury from Raleigh to visit hog farms in eastern North Carolina.

The impact of the court’s decision on Bladen County may be greatest, where 44 percent of those employed are in some capacity of the pork industry. The next highest county in the state is Sampson, at 23 percent.

A 2019 report by Dr. Kelly Zering at N.C. State says the pigs and pork production industry is valued at $13 billion in North Carolina, with full-time job equivalencies of more than 43,000. Nationally in pork production, Duplin and Sampson counties are first and second, respectively, and Bladen fluctuates between 11th and 12th.

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Alan Wooten

Bladen Journal

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