What the Swine Nuisance Verdicts in NC Could Mean for Midwestern Producers

In April, June, and August, juries in North Carolina ruled against the pork production division of Smithfield Foods in nuisance cases involving contract growers. The verdicts, ranging from $25 million to $473.5 million (all reduced by state law), have shocked and scared hog farmers across the U.S., who are wondering if this could affect them in the future.

Michael Blaser, an attorney with BrownWinick, Des Moines, Iowa, says he got calls immediately from pork producers seeking advice after the April ruling. “I told them I don’t think the verdict translates here,” says Blaser. “There isn’t a good analogy between the manure-handling systems they’ve been using down there and the systems primarily used in Iowa and the surrounding states.”

Blaser was general counsel to Iowa Select Farms from 1995 to 2000, and he is on the environmental committee for the National Pork Producers Council (NPPC). He points out that most hog manure in Iowa is knife-injected into the ground. “As a general rule, we don’t use spray guns or center pivots, so there is little drift.”

The verdicts set a dangerous precedent for American livestock agriculture, says Jim Heimerl, NPPC president and a hog farmer from Johnstown, Ohio. “American hog farmers already face serious headwinds, including export market uncertainty caused by ongoing trade disputes.” He says the lawsuits threaten the livelihood of livestock farming families, undermine the rural economy, and unnecessarily increase food prices for consumers.

Smithfield calls the lawsuits “an outrageous attack on animal agriculture, rural North Carolina, and thousands of independent family farmers who own and operate contract farms. From the beginning, the lawsuits have been nothing more than a money grab by a big litigation machine.”

Not all cases are alike

Eldon McAfee, an attorney with Brick Gentry, West Des Moines, Iowa, says the outcomes of farm nuisance cases are very specific to the individual facts of each case.

“Most come down to manure-handling practices,” he says. “The jury considers evidence of the practices used by the producer and also general practices for farms in that area. In the April case in North Carolina, the jury found those particular practices caused a nuisance.”

McAfee tracks nuisance cases for the Iowa Pork Producers Association. (See a few important cases below.) He says that in four out of five of the cases in the past 10 years, juries found no nuisance.

“It all depends on the individual facts introduced at trial to the jury,” says McAfee. “I’m sure Smithfield introduced evidence that supported its position that there was no nuisance, but the jury found otherwise.

“As an attorney representing livestock producers, I’ve been on the winning side and I’ve been on the losing side of jury verdicts,” says McAfee. “It comes down to the individual facts presented to the jury as witness testimony and evidence.”

Testimony from third-party witnesses is vital, he explains. “Juries pay particular attention to witnesses who aren’t parties in the case, such as other neighbors located near the hog farm. They may say, ‘Yeah, I smell it, but it doesn’t cause me any problems.’ That is pretty powerful evidence for the jury to consider and can be the determining factor.”

verdicts in other cases

McIlrath v. Prestage Farms of Iowa, Poweshiek County, Iowa, 2015. Plaintiff lived 2,200 feet northeast of a 2,490-head swine finishing site. Jury awarded $400,000 in personal damages and $125,000 in loss in property value. The judge reduced the verdict to $462,500.
Pauls et. al. v. JBS Live Pork, LLC, Wapello County, Iowa, 2016. The case involved nine plaintiffs 1.2 to 2.5 miles away from a 4,280-head finishing site. Jury verdict was no nuisance and $0 awarded. After trial, the court ordered plaintiffs to pay $48,666.61 in litigation costs.
Scott County, Illinois, 2016. The case involved two 7,500-head swine finishing farms .25 mile apart and 10 plaintiffs from .10 to 1.6 miles away. Jury verdict was no nuisance and $0 awarded.
Todd County, Minnesota, 2017. The case involved a 3,200-head sow farm and six plaintiffs from .25 to .5 mile away. Jury verdict was no nuisance and $0 awarded.