https://indyweek.com/news/northcarolina/smithfield-appeals-hog-farm-verdict-feature/
Randy Davis admits he’s not a natural warrior.
“I try to make everybody happy,” he says. “My nature is to get along.”
When an industrial hog farm went up near his home in Stantonsburg in 1991, and four years later, he watched pink wastewater flow toward the creek where he played as a child—even then, he shied away from confrontation. It was early in his career, and he didn’t want to be seen as a rabble-rouser.
“If you’re too vocal sometimes,” he says, “things can go sour.”
He dates his turning point to a crisp, sunny day in 2012. Davis and his family were living in his grandparents’ old house, across the road from where he grew up, on land that straddles Wilson and Greene Counties. He and his eight-year-old had been on a father-daughter outing. They arrived home, he says, to an odor that had wafted over from the nearby hog facility, Stantonsburg Farm. Swine operations don’t export their odor 24-7. But at its worst, the manure smells like “rotten eggs and ammonia,” says the federally funded journal Environmental Health Perspectives. It chases people indoors and sticks to clothing, to the point that Davis and his wife no longer hang their laundry outside to dry.
When they stepped out of the truck, Davis says, the stink was particularly strong.
“Dad, why do we have to live like this?” he recalls his daughter asking. “When I go to my friends’ house, I don’t smell this smell.”
The question thwacked Davis. He had grown up swimming and fishing in the nearby sandpits and creeks, and expected his kids to have a footloose childhood, too. When his oldest son—now an adult—was a child, they would pitch tents on their own property and camp overnight.
“We didn’t go to the mountains or wherever,” he says. “We live in the country.”
His two younger kids have had a more ambivalent relationship to the outdoors.
“It’s not like we stayed inside with the blinds pulled,” he says.
But living near Stantonsburg Farm, which has a permit to raise 4,800 pigs at a time, has meant less camping and fishing. The children didn’t have birthday parties around the swimming pool, because they never knew when the smell would chase everyone inside. That uncertainty, he says, has taken a toll.
“A man’s home is his castle, and he feels he needs to defend his castle, and so it makes you feel weaker,” he says. His children have noticed their parents’ helplessness, he says, and have internalized it themselves: “It makes them not as bold. Makes them not as daring. Makes them not as willing to challenge.”
Stantonsburg Farm raises the pigs for the Virginia-based Smithfield Foods, which is owned by a Chinese company. In 2014 Davis signed on as one of more than 500 plaintiffs suing Smithfield’s hog-production subsidiary, then called Murphy-Brown. The 26 lawsuits allege that industrial hog farming makes life intolerable for those living nearby—in legal parlance, that it creates a “private nuisance.” The plaintiffs live near farms contracted to, or owned by, Smithfield. They allege that the facilities produce a recurring stench and attract flies, buzzards, and late-night truck traffic.
The lawsuits claim that Smithfield can control the nuisance by changing how its farmers dispose of the pigs’ urine and feces. The waste is currently flushed into large open pits called “lagoons,” where it sits until growers spray it on their fields as fertilizer.
Smithfield insists that the nuisance claims are overblown and that alternative disposal technologies cost too much.
“From the beginning, the lawsuits have been nothing more than a money grab by a big litigation machine,” the company said in a 2018 statement. The company calls the suits “a serious threat to a major industry, to North Carolina’s entire economy, and to the jobs and livelihoods of tens of thousands of North Carolinians.”
But the company lost all five federal cases that went to trial in 2018 and 2019. Juries awarded 36 neighbors a total of almost $550 million, which the court dialed back to about $98 million because of a North Carolina law limiting punitive damages.
Davis’s case has not yet gone to trial. But on January 31, in Richmond, the Fourth U.S. Circuit Court of Appeals will hold oral arguments in the first of Smithfield’s appeals. The appellate court’s decision will help determine whether Davis’s lawsuit moves forward—whether he can seek damages for what he calls his children’s diminished childhood.
The case before the Fourth Circuit is called McKiver vs. Murphy-Brown. It involves a rural community in Bladen County and a swine facility that opened in its midst in the mid-1990s. Owner Billy Kinlaw had a contract with Smithfield’s Murphy-Brown subsidiary and a permit to raise more than 14,000 pigs at a time. Like all 26 lawsuits, this one was filed by Wallace and Graham, a Salisbury law firm that often takes on large corporations.
The trial took place at the U.S. District Court in Raleigh in April 2018. On the witness stand, Kinlaw’s neighbors recounted how the odor, buzzards, flies, and truck traffic upended their lives.
“My father was a sharecropper,” plaintiff Daphne McKoy, an administrative assistant, testified. “We didn’t have a lot, and what he did leave to his family was that little piece of land.”
Back then, she said, it was quiet, and the air was fresh: “You could spend all day on the porch or under the tree, but no one does that anymore. You can ride through and it looks like a ghost town compared to when I was coming up.”
Many of McKoy’s relatives still live along that road. But McKoy said she fears that when her own children grow up, they will settle down in less noxious surroundings.
“They’re embarrassed by the odors,” she testified. “They’re embarrassed to have their friends over.”
Like Randy Davis, three counties away, McKoy said she felt frustrated by her inability to give her kids a pastoral North Carolina childhood.
“I would like for you to know how helpless I feel as a mother to hear them complain about how the kids say, ‘Your house smells like a trash dump,’” she told the jury. “I just want you to know how sometimes hopeless and helpless it feels.”
This frustration, argued plaintiffs’ co-counsel Michael Kaeske, was as avoidable as the smell itself. “Smithfield has saved untold millions of dollars by refusing to use alternative technology that will fix the problems,” he said during his opening argument. He added that Smithfield has tried to evade responsibility for the stench.
One of the documents Kaeske offered as evidence was a 1999 memo from a now-retired Smithfield executive, Don Butler, lauding the state’s new odor regulations. “The rules, as written, are so vague and subjective that enforcement will be difficult,” Butler wrote. “This may be to our benefit.”
Smithfield pushed back against the plaintiffs’ narrative. “There was never an odor issue raised about the Kinlaw farm before this lawsuit,” defense attorney Mark Anderson told the jury.
Among his witnesses was Jacquelyne Creed-Enloe, a neighbor whom the Kinlaws have invited over for oyster roasts and pig pickings. Her children sometimes visit the farm, too, she testified, and feed the resident donkeys. They wouldn’t do that, she said, if the farm had a strong odor. One daughter is “really prissy,” and her son “has a keen sense of smell, and he would have a meltdown. He can’t handle gassy smells.”
Over three weeks, the jury heard from parents and children, scientists, and industry leaders who told contradictory stories of life in swine country. Then the jury delivered a decisive verdict: Not only did Smithfield harm the plaintiffs, but it also committed such “egregiously wrongful acts” that it deserved to pay punitive damages. The jury awarded the 10 plaintiffs a total of $50.75 million. State law reduced the award to $3.25 million.
Smithfield appealed the verdict, saying that Senior U.S. District Judge W. Earl Britt “committed numerous errors”—first among them “allowing the jury to consider and award punitive damages despite a lack of sufficient evidence.”
That’s the appeal that the Fourth Circuit will hear on January 31.
After the McKiver verdict, Billy Kinlaw couldn’t understand how his farm, with its clean environmental record in the eyes of state government, could be the source of a multimillion-dollar jury award.
“Quite frankly, I’ve lost a lot of respect for the legal system,” said Kinlaw, who was not himself sued, in an interview for an article published by the Food & Environmental Reporting Network and The Nation. “I’ve never had any type of violation, never had any type of write-up, and this is in 24 years. And now, all of a sudden, I’m a nuisance.”
The industry said the same thing. As part of the Fourth Circuit appeal, four industry groups argued that the court should consider the fact that state regulators have never cited Kinlaw Farms.
“[P]laintiffs’ legal theories do not target rogue operators who flout environmental laws,” said an amicus brief filed by the North Carolina Pork Council, North Carolina Farm Bureau Federation, and their national counterparts. “They challenge operators who comply with the law and carry out ordinary farming practices. It is no exaggeration to say that a plaintiff win in these lawsuits would subject the everyday activities of all farmers to punitive damages.”
If Randy Davis’s lawsuit makes it to trial, it will be harder for Smithfield and the industry to make that argument. Stantonsburg Farm, which generates an estimated 12 million gallons of hog waste a year, has received multiple write-ups by regulators over the past quarter-century.
The first came in January 1995.
Prakash Menon was on emergency standby for the state Division of Environmental Management when his beeper interrupted a Saturday afternoon. Menon, an environmental engineer, was summoned to Stantonsburg, where he saw stagnant pink liquid in the ditches lining both sides of a rural road. (Bacterial action turns hog waste pink.) Several neighbors, including Davis, were there to meet him.
The discharge came from Stantonsburg Farm, according to a violation notice issued by the state government. And it emptied into Contentnea Creek, where Davis had spent so much of his youth. Contentnea Creek, in turn, flows into the Neuse River.
“Wastewater of this nature has the potential to deplete dissolved oxygen in the affected water body to a point which is harmful to aquatic life,” said a DEM inspection report stemming from the incident. But when Menon showed up at the farm, the manager refused him entry. The engineer had to call the Greene County Sheriff’s Office for help.
On a follow-up visit, two other DEM employees found dead pigs improperly dumped in a drainage area, half-covered with water. During that visit, according to state records, the manager again was “not cooperative.”
The 1995 incident was one of several noted by regulators, including waste discharges in 1999, 2009, and 2013. All the while, neighbors continued to complain.
“How would you feel if you couldn’t drink the water from your own well, go to church without the smell of hog waste permeating your clothing, or even have a barbecue with friends on your own property?” said Don Webb, a plaintiff and former hog farmer, in a 2014 statement released by the Waterkeeper Alliance, an environmental group. Webb died in 2018.
Stantonsburg Farm is owned by Murphy Family Ventures, a company founded and headed by Wendell “Dell” Murphy Jr. He’s the son of Wendell Murphy Sr., who pioneered the expansion of North Carolina’s swine industry and also served in the state legislature from 1983–93. As The News & Observer chronicled in “Boss Hog,” its 1995 Pulitzer-winning investigation, the elder Murphy and his legislative allies championed laws to protect the industry, including sales-tax exemptions and restrictions on county zoning powers.
Smithfield’s subsidiary, Murphy-Brown, leased and managed Stantonsburg Farm from 2002–12.
Smithfield declined an interview request for this article and declined to answer questions by email. Representatives of Murphy Family Ventures and Stantonsburg Farm did not return phone calls.
In its formal response to the lawsuit, Smithfield acknowledged “a few instances where application of effluent at the Stantonsburg Farm resulted in runoff onto neighboring land and waterways.” The company added that the farm and its owners “undertook efforts immediately to remediate any runoff,” and that Smithfield has worked with the farm to minimize the smell and generally improve its environmental performance.
Over the past three years, Davis says he’s noticed a change: “The hog operation has been very minimal nuisance.” He wonders if this is a result of the lawsuit.
The relief has brought Davis little comfort.
“Some people say, ‘Well, aren’t you happy about that?’ Well, no. That made me mad as hell.” To him, the improvement shows that Stantonsburg Farm could have mitigated the odors all along. “But it cost pennies more to do it, where you can be a better neighbor versus you don’t give a crap about your neighbor.”
“The last three years of my life living here has been great,” he says. “The prior 20 years, it was hell.”