High-powered trial lawyers joust as latest hog trial commences

1,800 words, six-minute read

Robert Thackston, who is tall, bald, with a trunk as straight as a redwood’s, removed his midnight-blue suit jacket to reveal a white twill shirt so crisp it threatened to shatter.

On the seventh floor, in Room No. 2 of the federal courthouse in Raleigh, the Texas lawyer sat at the head of a scurry of attorneys hired by Smithfield, the world’s largest pork producer. He rocked in his chair and flipped through his thicket of notes, as if perusing a wine list. He raised his eyes and gazed at the grid of lights in the ceiling. He seemed to be rehearsing.

Behind him, in the gallery, fellow Texas attorney Michael Kaeske, graying but boyish, smiled and shook hands with each of the plaintiffs. The eight Black neighbors of a 6,000-head industrialized hog farm near Rose Hill in Sampson County had entrusted him with their story. It seemed to weigh on him. Flanked by lawyers from the Salisbury firm Wallace and Graham, which hired him as the lead attorney, he approached his desk and turned around to face the packed courtroom. He touched three fingers to the side of his neck, as if measuring his pulse.

The fourth hog nuisance case against Smithfield Foods began in US District Court on Wednesday. Yet even before the trial, its methods and strategies contrasted with the previous three. The farm in question, Sholar, is owned and operated by Smithfield Foods. Although in all of the cases the defendant is Smithfield, the company has often used its growers — family farmers contractually bound to corporate whims — as a public relations tool to elicit sympathy. This time, there is no family farmer. There is just Smithfield.

It’s not a coincidence that when a corporate farm was on the line, Smithfield hired a new legal team. In the previous cases, attorneys from McGuireWoods, a high-flying law firm with 23 offices in the US and Europe, had whiffed. They batted zero-for-three, losing jury verdicts that awarded a total of more than a half-billion dollars to plaintiffs in compensatory and punitive damages. (Because of a state cap on punitive damages, those monetary awards were slashed to a fraction of the original. McGuireWoods is also appealing the verdicts to the Fourth Circuit Court.)

Enter Thackston, a notoriously aggressive trial attorney whose swagger suggests he not only likes to win, but he also enjoys seeing others lose. He and Kaeske have faced off before in personal injury cases involving asbestos claims. It’s a formidable match-up, akin to Muhammad Ali versus George Foreman, Luke Skywalker versus Darth Vader.

And there is a different judge. Eighty-six-year-old Earl Britt, who was verbally assailed by state lawmakers siding with Smithfield, has taken a break to deal with an ailing back, and has been temporarily replaced by another senior judge 10 years younger: David Faber from the Southern District of West Virginia. 

Less grandfatherly than Britt, Faber has narrowed the breadth of what the jury will hear and see. Thackston and McGuireWoods, which is still on the case but in a diminished role, filed dozens of motions objecting to the Kaeske’s previous exhibits and witness testimony. As a result, the jury will view tightly edited video testimony from Steve Wing, the late epidemiologist who studied the effects of industrialized hog farms on the mental and physical health of their neighbors. 

The jury will hear less from Shane Rogers, an environmental engineer and university professor who studies how bacteria, pollution and other contaminants travel beyond the property lines of industrialized hog farms. 

The boundaries of “community,” taken to mean eastern North Carolina in the previous cases, have shrunk from a region packed with hog farms to a few country blocks. There will be few, if any references to Smithfield’s Chinese ownership. Kaeske will have to rein in his argumentative style of questioning. 

Faber, though, also foreclosed on several of the defense’s tactics. He struck down Smithfield’s attempts to dismiss the case based on North Carolina’s new “Right to Farm” law that all but prohibits nuisance suits against hog operations. These industrialized farms, with their thousands of pigs crammed in concrete barns, produce millions of gallons of waste held in open pits. The waste is sprayed from hoses at rates of 200 gallons a minute onto fields for fertilizer. The waste attracts flies. The dead hogs lure buzzards. And the flies and the buzzards, along with the odor of feces and the truck traffic, Kaeske argued, create an unreasonable and substantial impediment to neighbors’ enjoyment and use of the property, as laid out by common law.

Faber denied a motion to exclude discussion of political lobbying. And the judge seemed offended by the defense’s motion to exclude arguments “meant to make the jury think the defendant’s farms are a threat to the environment, clean water … and to them. These tactics are meant to make the jury go into fear and preservation mode and ignore the real issues.”

This, the defense team, explained, is the “Reptile Theory.”

“The theory is that each juror has an inner ‘reptile’ that can be awakened by sensing danger, real or imagined,” the court documents read. “If a juror begins to fear of his or her own safety, or the safety of others, emotions override reason and the juror will make decisions out of self-preservation rather than on the evidence. Reptile teaches that fear wins over facts.”

Thinly veiling his contempt, Faber wrote, “The court is not particularly impressed with this filing. It does not set the sort of tone appropriate for attorneys practicing before this court and any arguments contained within the motion could have been made in a more professional and specific manner.”

Motion denied.

And with the reptiles put to bed, opening statements began. 

First, with the story of a 100-year-old neighborhood at Herring and Moon Johnson roads.

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Sitting in the second row of the gallery, Lottie Fowler was born in 1938 in her great-grandmother’s house near Herring and Moon Johnson roads — the latter named after William Tom Moon Johnson. The other plaintiffs are the descendants of the McNeills and the Tatums and the Picketts and the Johnsons, whose families had owned land there for as long as a century. A newcomer, Josephus West, bought a few acres in 1960.

Hemmed in by forests, the families, just a few generations removed from slaves, grew row crops on the open land, and raised a few animals for food. They were — and are — closely knit, by blood, history and circumstance.

In 1984, Murphy Farms, now part of the Smithfield corporate family, chose the neighborhood with its 22 homes, to build an industrialized hog farm at the end of Moon Johnson Road and near Clear Run Creek. Within a decade, Murphy Farms had purchased more land from the heir of a neighbor, and cut 12 acres of woods, and eventually 33 more, to expand. The neighbors complained about the odor, Kaeske said in his opening statement, “but Murphy Farms chose to do nothing.”

Meanwhile, hog farmer Wendell Murphy, born just a year after Lottie Fowler and also near Rose Hill was elected to the legislature. A Democrat, Murphy used his influence to pass laws that favored industrialized farms. Counties could no longer use zoning to restrict their location. The industry helped craft the state’s odor laws, which are vague and difficult to enforce. Despite the inconveniences of living near these operations, Eastern North Carolinians embraced them. Textiles, tobacco, manufacturing — those jobs had disappeared. Hogs, they thought, would save eastern North Carolina.

The industry did create jobs — although poverty remains endemic in the region. But the proliferation of these farms and their hogs — nine million animals — also caused environmental problems, particularly to waterways, and created friction between farmers, most of them white, and neighbors, many of them Black or low-income, who had tired of the smell that drove them into their homes even on the most perfect of North Carolina days.

Now the Sholar farm raises 6,000 hogs in five buildings, using two open-pit lagoons and nine spray fields to dispose of the tens of millions of gallons of waste. It is one of more than a dozen industrialized hog farms that have been built around the Herring Road area, but it is the one closest to the neighbors — closer than a half-mile.

“The neighborhood was there first,” Kaeske told the jury. “Let me say that again: The. Neighborhood. Was. There. First.”

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“Everybody likes a good story,” began Robert Thackston, “The big guy is flushing the little guy. But it’s fiction.”

He portrayed the era of small family farms as mythology, as an antiquated method of raising hogs when there are so many people to feed. He even made the dubious claim that raising pigs indoors, in confined barns, where they never touch dirt or smell fresh air, as a “way to keep disease out.” In fact, when hogs are confined, disease spreads, and the stress can make them prone to illness. That, and the incentives to grow hogs quickly, are why farmers feed them antibiotics.

Undercutting his own argument, Thackson later told the jury that Smithfield posted No Trespassing signs because of potential “biosecurity” hazards. This is true, and commonplace at farms. Visitors could track in pathogens — or they could track them out, and to other farms.

Thackston, though, honed in on Kaeske’s methods, including his word choices. “He’s using terms we’d rather not use: feces, urine, defecation, sewage, filth,” Thackston said. “Is that necessary or a way to get you upset, for you to think, ‘That’s nasty’?”

Effluent — feces and urine, and even placentas from sows who have given birth — from the lagoon, is “natural and organic fertilizer,” Thackston said. “And is important for new growth of crops.” That material is indeed the byproduct of natural biological processes, but it is not “organic” in the way people think of the term: Unadulterated and healthy. “You don’t have to spray your crop,” he went on. “You can do it organically.” (While spraying waste does preclude the need for fertilizer, farmers spray these fields for weeds, as a condition of their permit.)

There are dozens of farms, hog and poultry, even a composting facility, in the area. The stench is impossible to trace solely to Sholar Farms, Thackston said. The neighbors live farther away — 1,000, 2,000 feet from Sholar — not hundreds, than the plaintiffs claim. Someone — not a party to the lawsuit — even built an in-ground swimming pool 1,000 feet away. Herring Road is no longer a quiet country byway. Trucks from various enterprises, not just Sholar, travel that road each day. “Everything you will hear is subjective claims,” he went on. “There is no test for odor.”

As for the flies, they could be coming from anywhere, Thackston said. And what’s the problem with these disease-carrying vectors? After all, he said,  “a sign of a good barbecue place is flies.”

The trial continues today and is expected to last through early December.