A $50-million award in punitive damages to North Carolina residents who live near a hog production facility has been reduced to $2.5 million.

Senior U.S. District Judge W. Earl Britt found May 7 that the state’s law capping punitive damages awards applied to the case, in which 10 residents sued Murphy-Brown LLC, a Smithfield Foods subsidiary, for diminishing their enjoyment of their property.

Specifically, they said the “noxious and sickening odor” from Kinlaw Farm, which raises about 15,000 hogs on contract with Murphy-Brown, at times made it difficult for them to breathe. They also complained of “onslaughts of flies and pests, nausea, burning and watery eyes” that they linked to the hog manure applied to the facility’s land.

A jury originally awarded each plaintiff $75,000 in compensation and $5 million in punitive damages, but the judge applied a North Carolina law that caps punitive damages awards at three times the amount of compensatory damages or $250,000, whichever is higher. If the verdict survives on appeal, each plaintiff would be in line to receive $325,000.

While good news for Smithfield Foods, which owns Murphy-Brown and has vowed to appeal, the verdict and the attendant publicity were welcomed by opponents of the hog industry’s expansion.

More lawsuits are already on the way in North Carolina, with more than two dozen related cases teed up in federal court there.

But pork producers may be wondering whether the North Carolina verdict will translate into nuisance lawsuits – and the possibility of large jury awards – in their states.

The answer is: It depends. That’s because every case is different, says Eldon McAfee, an attorney with Brick Gentry in Des Moines and legal counsel for the Iowa Pork Producers Association. Iowa is the country's top pork producing state. 

“These nuisance cases usually don’t have a precedential effect,” McAfee said in an interview. “They’re so fact-specific.” In addition to the facts, the testimony of the witnesses who are called has a big impact on the outcome of specific cases, he says.

“It could have some effect on whether someone would file a nuisance case,” he added. Attorneys in other states will examine the North Carolina verdict to see whether it provides a road map for litigation they may want to bring.

McAfee also said that while legal victories by plaintiffs receive a lot of attention, there are many other situations where producers prevail. He cited a 2016 case in Scott County, Illinois, where a jury found no nuisance and awarded no money to plaintiffs who were suing over two 7,500-head swine finishing operations. And in December, a Minnesota jury also ruled for a producer facing a nuisance suit.

“Those (cases) probably have as much impact, but they don’t often receive attention like a case like this,” McAfee said.

Iowa Citizens for Community Improvement, which actively campaigns against new hog operations in the state and has worked to strengthen Iowa’s oversight of them, has a different take on the verdict.

Jess Mazour, an organizer on CCI’s Farm and Environment team, says the verdict shows that large hog farms “are a nuisance in everyday life. This sends a strong message that we are right on that.”

“They can’t keep ignoring the people who are impacted,” she said, speaking of the pork industry.

But Mazour also says the law in Iowa makes it difficult to bring nuisance cases against livestock facilities. In 1995, state lawmakers approved legislation limiting economic damages in nuisance lawsuits brought against ag producers. The constitutionality of that law has been challenged in a case now being considered by the Iowa Supreme Court.

Right-to-farm laws throughout the country are another barrier to nuisance lawsuits. As the National Agricultural Law Center explains, “All 50 states have enacted right-to-farm laws that seek to protect qualifying farmers and ranchers from nuisance lawsuits filed by individuals who move into a rural area where normal farming operations exist, and who later use nuisance actions to attempt to stop those ongoing operations.”

A key ruling in the North Carolina case was when Judge Britt determined in November that the state’s right-to-farm law did not apply. “This is not a case in which the non-agriculture use extended into an agricultural area,” he said then in his ruling, noting that the plaintiffs’ homes “had been in existence well before the operations of the subject farms began.”

Scott Sobel, a senior vice president for crisis and litigation communications at kglobal in Washington, D.C., questioned the verdict itself, which has been criticized widely by farm groups and even Agriculture Secretary Sonny Perdue, who called it “despicable.”

“If the farmer’s not breaking the law, how fair is the verdict?” he asked, alluding to the fact that the operation in question had not run afoul of state environmental laws. But he also said, “It’s got to be better for both sides to reach some sort of mediated, reasonable solution, as opposed to a conflict solution, if that’s possible.”

He said if he were advising Smithfield, he would tell them “to get as much information out in the public to allow consumers to make rational, common-sense decisions, based on facts and not just emotional, hyperbolic, sensational information.” Sobel’s firm has done work for the pork industry.

The publicity surrounding the verdict could present an opportunity for companies selling materials to reduce odor in manure. One of those is Drylet of Houston, which makes ManureMagic, “a dry powder formulated with patented particles seeded with mixed microbial cultures that turbo-charge the natural process of anaerobic digestion,” according to the company’s website.

Gary Tomlinson, sales director for the company, says case studies have shown that ManureMagic reduces solids in deep pits and lagoons, and reduces odor by slashing the amount of hydrogen sulfide that is released.

Studies by Purdue and Iowa State have documented significant reductions in sludge and biosolids when ManureMagic is used, but also have called for more research.

“Treatment with ManureMagic reduced solids content, methane production rate, foam stability, and resulted in an altered microbial community,” the ISU researchers found.

Daniel Andersen, an assistant professor in Iowa State’s College of Engineering and College of Agriculture and Life Sciences and a co-author of the report on ManureMagic’s effectiveness, said about one-third of hog farmers in Iowa use some type of product to reduce odor, but so far there is not enough data on all of them.

“There’s no silver bullet” to solve the odor problem, he said, adding that there are “a lot of structural things,” such as wet scrubbers, biofilters or electrostatic precipitation, that can be used, as well.

Tomlinson said the current situation, with rural areas increasingly becoming more urban, gives the hog industry a chance to make changes.

“The challenges they’re facing are not going to go away,” he said. Now, they have “an opportunity to do the right thing for the local communities and themselves.”

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