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Hog farm trials change judges

August 8th, 2018

— Two upcoming lawsuits against Smithfield Foods’ hog production division will be heard by a federal judge out of West Virginia, not the North Carolina judge who handled the first three suits against the company.

Farms from one of those previous suits hailed the news this week as an answer to prayers, given complaints the hog industry has had about U.S. District Judge Earl Britt’s handling of the cases. But there’s no indication the change says anything about Britt’s management. The change comes as a new designation of service in only two of 23 upcoming cases, not through a motion to disqualify Britt from the suits.

Britt, 85, complained of back issues during the most recent trial, and stood for much of the testimony one day as a result. His office declined to discuss the change Wednesday. Attorneys and others involved in the cases are subject to gag orders Britt issued and generally not allowed to speak to the press.

U.S. District Judge David Faber, from the Southern District of West Virginia, will pinch hit in at least two of the upcoming cases: Gillis v. Murphy-Brown and Anderson v. Murphy-Brown.

Murphy-Brown is a name for Smithfield’s hog division.

These are the fourth and sixth cases, respectively, in a string of 26 against the pork giant in North Carolina. They were brought by attorneys for 500 neighbors complaining of odors and other nuisances emanating from the farms and their open waste lagoons.

It’s unclear who will hear the fifth case or other cases going forward.

Faber, 75, was appointed to the bench in 1991 by President George H.W. Bush. Britt was a Carter appointee. State legislators and others upset over a trio of verdicts against Smithfield, including last week’s $473.5 million decision, have complained of unfair treatment during the first three trials.

“Today we have received remarkable news,” someone posting for HD3 Farms said on Facebook Tuesday. HB3 Farms owns two of the Pender County farms targeted in the most recent trial. “Judge Britt has been removed from the next two Smithfield Foods nuisance lawsuit cases. Most of you know, this is a divine answer to prayer. … We hope and pray that with a new judge on the bench, that justice and truth will prevail.”

David Long, a Poyner Spruill attorney with four decades of experience in North Carolina’s state and federal courts, said Wednesday that he doesn’t expect the change in judges to make much difference in the coming cases. It’s going to be the same evidence from the plaintiffs, the same witnesses for the defense and the same jury pool, Long said.

Long is not involved in any of the hog farm cases. He described Britt’s schedule in these cases – three full trials held since early April – as “aggressive.”

Michelle Nowlin, who is at the Duke Environmental Law and Policy Clinic and has been following these cases, said she believes the replacement is health related. She said she’s not familiar with Faber but expects him to be fair and impartial, “just as Judge Britt was.” She compared complaints about the judge to standard rants against sports referees.

Juries previously awarded verdicts of $50 million and $25 million against Smithfield. All three verdicts have been, or will be, appealed, and all three have been reduced significantly due to a state cap on punitive damages. Even with the cap, verdicts against the company still add up to nearly $100 million.

General Assembly members, who passed legislation earlier this year meant to make these types of lawsuits harder for neighbors to win, have said the suits could run Smithfield out of North Carolina, decimating eastern North Carolina’s economy. Advocates for neighbors have said the industry can afford upgrades at these farms, which have operated with the same basic technology since at least the 1990s.

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