Farmers Breathe Easier After N.C. Trial. More Battles on the Horizon

by Sara Corcoran, Courts Monitor Publisher
(Originally published in CityWatch LA on 4/1/19)

Nationwide, including California, agricultural interests are likely breathing a collective sigh of relief after a North Carolina jury awarded a relatively low judgement to 10 plaintiffs in that state’s latest round of nuisance” hog farm lawsuits.

However, it would be premature to assume that farmers are in the clear: In North Carolina alone, close to 21 cases are on the docket with hundreds of plaintiffs still awaiting their day in court.

Nuisance litigation has taken on national implications in part because they involve “concentrated animal feeding operations,” or CAFOs. The practice of centralizing production began with poultry farms in the 1950s and is a common practice both globally and in the U.S. For example, there are close to 20,000 CAFO operations across the U.S., with approximately 1,000 in California.

N.C. grocery store shows support for hog farmers.

Initially, the first three North Carolina hog farm trials made headlines as juries awarded $500,000 million to plaintiffs (North Carolina state-mandated caps on non-economic damages will lower the final judgment to the $100 million range). The next two trials, however, brought awards of “only” about $500,000. This represents a significant departure from the aforementioned pattern as these judgments are supposed to be “discovery pool” trials that will inform any potential future settlements of the still-pending cases. The latest trial was before a judge considered more plaintiff-friendly than the judge for the previous case; that judge decided that the pork producers would not even face punitive damages.

It’s worth noting that people suing assure juries they “like bacon” and that the lawyers involved have been linked to anti-animal agriculture groups. They argue against concentrated corporate farming and harken back to a time in the 1970s when small farms produced a few hogs. With twice as many people on earth now that would lead to pork prices that only wealthy lawyers could afford.

I should also note that in these types of personal injury-contingency cases, legal fees consume most of the award. Specifics of settlements are usually confidential, however, expert witnesses, miscellaneous support expenses, and 40 percent fees off the top can leave little of the awards to the original injured parties. Under the terms of any probable payout scenario, even with all the cases under appeal, the last two North Carolina cases are significant financial setbacks for the litigation firms suing the farms. Notwithstanding that, it’s actually highly unusual to have such trials because close to 95 percent of all civil injury cases reach pre-trial settlements.

Some agricultural observers posit that the North Carolina arguments over odor and other issues could bypass state “right to farm” laws because those harms are not usually addressed the way water quality or health issues might be. The idea is that juries, not lawmakers, can drive policy changes.  Every state has some version of right-to-farm, and they vary greatly. North Carolina, for example, updated its farm laws after the hog farm cases began with Republican lawmakers overriding a veto from Democratic Governor Roy Cooper. The state’s Pork Council makes the political landscape clear: “[On the hog farm cases]  all across eastern North Carolina and beyond, county commissioners and elected town officials have done the same. Elected officials (of both political parties, it must be said) have rendered their verdicts.”

Yet another aspect of the litigation, as I noted in an earlier column, is that it has drawn the attention of nationally known asbestos-lawsuit firms. Since asbestos litigation has forced about 100 companies into bankruptcy, there are serious implications for North Carolina’s economy, which has suffered from an exodus of jobs from the tobacco and textile industries. Additional parallels to asbestos litigation have also been noted.  Tactics, such as not suing individual farmers (who juries might find sympathetic) but instead suing the companies providing the pigs amid very specific contracts. Large corporations are less sympathetic on the national stage and tend to have more resources.

There have been allegations of other parallels to asbestos litigation tactics such as mass sign-up of African-American plaintiffs to fit a narrative that hog farms are located only in economically disadvantaged African-American communities. But in the last trial, at least five of the neighbors who lived very close to the farm (and were white) testified there was no nuisance. The lawsuits also target the deep-pocketed owner of the hogs, not the farmers who actually raise them.

Nationally, the North Carolina lawsuits are also being monitored because they technically sidestep most of the core environmental debates, like health concerns, water quality or even how carbon footprints of animals are managed. These lawsuits focus on how much the smell of the operations impact neighbors, and farmers are quick to point out that there were virtually no complaints about odors and other issues (flies, buzzards, even truck traffic) until after a team of lawyers began organizing the lawsuits a few years ago. A local journalist covered that aspect of the story at a Wilmington TV station website; the report at WECT offers detailed background on how the cases came to exist.

That report illustrates how people’s perspectives on the hog farm trials fall along a rural-urban divide. Farm-area families are outraged that urban-area juries are not visiting the actual farms being sued, especially when they hear journalist Casey Roman, who did the WECT report, tell an interviewer: “I went and stood maybe a foot from the edge of the lagoon, in front of millions of gallons of pig waste… I didn’t smell anything. At that point, I was like, alright, this is clearly something more than what I’ve been reading.”

That contrasts sharply with reporting in the California-owned urban dailies in Charlotte and Raleigh, where coverage has been seen as decidedly more anti-farmer.

What seems clear, for now, is that at least one North Carolina hog farmer is out of the pig business, and state ag leadership stresses that if it can happen to him it can happen to anybody. The argument of “who came first?” is fairly weak in these cases because even residences that pre-date the hog farm in question moved into an area already hosting centralized poultry operations and other animal-farming activity.

The idea that what happens in North Carolina will not stay in North Carolina, but indeed can happen anywhere, means that the hog farm trials are really a de facto debate over national policy. Hog litigation averts involvement of elected officials and diverts power directly to judges and juries – and with multiple billions of dollars at stake, not to mention possible impacts to the U.S. food supply, you can bet these cases are about more than tomorrow’s bacon and will soon be headed to a breakfast table near you.

(Sara Corcoran writes DC Dispatch for CityWatch. She is the Publisher of the California and National Courts Monitor and contributes to Daily Koz, The Frontier Post in Pakistan and other important news publications.)

Passenger sues airline for suitcase falling on his head

Photo Credit: Joe Amon, The Denver Post as part of a report on the Southwest Airlines law suit.

An airplane passenger has sued Southwest Airlines in U.S. District Court in Denver after a suitcase fell from an overhead bin onto his head, reports The Denver Post.

According to the report, “Charles E. Giebel II was in his plane seat at Denver International Airport awaiting a flight to Newark, New Jersey on March 22, 2017, when an ‘infirm’ passenger trying to load a suitcase in an overhead bin dropped it on Giebel’s head, the lawsuit said.”

Timothy Fields, the Colorado Springs attorney that filed the lawsuit, claims flight attendants should have noticed the passenger was struggling with his suitcase and should have helped.

The Denver Post reported that Giebel is seeking an unspecified award from Southwest.

Connecticut’s highest court rules against Remington over Sandy Hook

Photo Credit: REUTERS/Joshua Roberts, as included in the report by Reuters on 3/14/19.

Remington Outdoor Co. Inc. can be sued for the 2012 mass shooting at Sandy Hook Elementary School in Newtown, Conn., that left 20 school children aged 6 and 7 and six adult staff dead, a court ruled on March 14.

This marks a “setback for gun makers long shielded from liability in mass shootings,” Reuters reported.

“In a 4-3 ruling widely expected to be appealed to the U.S. Supreme Court, Connecticut’s highest court found the lawsuit could proceed based on a state law protecting consumers against fraudulent marketing,” noted Reuters.

Litigants argued that Remington marketed its AR-15 Bushmaster rifle “based on its militaristic appeal.”

USA Today noted the larger ramifications of the ruling: “By ruling against a gun-maker, the Connecticut Supreme Court appears to have pierced a legal shield that could lead to more lawsuits and damaging disclosures involving the arms industry, gun control advocates say.”

The newspaper added that the method of marketing was questioned, quoting Justice Richard Powers in the majority opinion: “The regulation of advertising that threatens the public’s health, safety and morals has long been considered a core exercise of the states’ police powers.”

California marijuana retailer sued by former chief financial officer

Image: MedMen Chief Executive Adam Bierman as reported by Los Angeles Times. Photo Credit: Ricardo DeAratanha / Los Angeles Times.

MedMen, a major marijuana industry operator in California with 1,243 employees, faces a lawsuit by its former chief financial officer, the L.A. Times reports.

“As California’s marijuana industry works to project an image of mainstream respectability, one of its best-known companies has come under attack by a former insider,” the newspaper reports.

MedMen Enterprises Inc. is trying to bring pot sales into the mainstream by providing sleek, comfortable stores in high-profile locations, and its strategy often is said to emulate the Apple store model.

The marijuana retailer is being sued by its former chief financial officer, James Parker, “who alleges the Culver City firm forced him out for objecting to a variety of alleged misdeeds at the company, whose stock became publicly traded last year.” A MedMen official denies the allegations.

Parker’s suit was filed in Los Angeles County Superior Court following his departure from the firm on Nov. 5.

“After earlier rounds of private funding, MedMen went public last May through a reverse takeover — MedMen bought an existing Canadian public company — that enabled MedMen’s stock to be listed on the Canadian Securities Exchange,” the L.A. Times reports. “Although California and more than two dozen other states allow medicinal or adult recreational use of marijuana, cannabis remains illegal under U.S. federal law and thus the major U.S. stock exchanges will not list cannabis firms that operate in the United States.”

Pre-trial bail rejected by San Francisco judge

San Francisco’s money bail schedule deprives plaintiffs of their rights, a judge ruled while overturning the law, possibly creating an opening for additional challenges.

Findlaw.com reports that U.S. District Judge Yvonne Gonzalez Rogers ruled that the sheriff’s use of the bail schedule “has significantly deprived plaintiffs of their fundamental right to liberty by sole reason of their indigence.”

The concept of bail, Findlaw.com notes, “means that thousands of potentially innocent people are stuck in jail — often for minor offenses — simply because they can’t afford bail.”

One of the plaintiffs in the case decided by Judge Rogers lost her job while in custody, only to have the charges against her dropped.

The ruling is not an isolated rejection of money bail, the site notes. “Cities, states, courts, and the Department of Justice have come out against pre-trial money,” the site reports.