Looking for what it called a “non-confusing, non-biased” legal perspective on the North Carolina hog farm nuisance trials involving Murphy-Brown, a subsidiary of Smithfield Foods, Meat Packing Journal turned to Bailey Brauer co-founder Clayton Bailey for its July-August 2018 cover story, “Successful Lawsuit Means Open Season On US Producers.” A trial and appellate attorney known nationally for his work within the agriculture industry, Mr. Bailey spoke in-depth on the key issues in the case against the hog farm and the potential impact of the original $50 million jury verdict. “Allegedly, the hog farm complied with laws regulating its operations, but the problem concerned the impact of that operation on the neighbours and whether the neighbours’ rights were infringed. The crux of the lawsuit boiled down to whether the hog farm’s operations substantially and unreasonably interfered with the neighbours’ use and enjoyment of their property,” said Mr. Bailey, in reference to the impact the smells and sounds emanating from a hog farm has on a nearby residential development . “When you move into a rural area, you have to anticipate animal sounds and smells. It’s like electing to live in Manhattan, New York, and becoming offended by hearing sirens, honking horns, and smelling car exhaust – what did you expect? That said, hog farms need to be good neighbours by taking reasonable steps to mitigate against sounds and smells. Other ways to be a good neighbour are to communicate, be proactive, and address complaints. Based on my experience, problems like the one in North Carolina can be avoided if there is good communication because the offended party is more likely to want to work with the farmer/company than to get involved in a legal fight.” Mr.
The April 27, 2018, edition of Politico’s The Morning Agriculture column examined the $50 million federal jury award in the bellwether trial against a Bladen County, N.C., commercial hog operation. Residents of a residential development had filed suit claiming conditions at nearby Kinlaw Farm contributed to their diminished quality of life. Bailey Brauer co-founder Clayton Bailey told Politico that the verdict could result in an uptick in similar nuisance cases against industrial operations. “Somebody will look at this and say: ‘These folks won, let’s see how they did it,’ and they’ll try to piggyback and bring one somewhere else,” said Mr. Bailey, who was not involved in this case. “It could be against Smithfield; it could be against someone else; it could be in a different industry — it could be in the cattle industry.” Kinlaw Farm operates under contract with Murphy-Brown, a subsidiary of Smithfield Foods. Murphy-Brown was sued in 2014 by approximately 500 residents for what they claim was the company’s “refusal” to invest in costly alternative waste-disposal methods that would have minimized odors emanating from Kinlaw Farm. The Bladen County trial was seen as a bellwether for subsequent trial. Morning Agriculture came back to Mr. Bailey when they revisited the dispute on July 18 to explore an emergency appeal of a gag order currently pending before the U.S. Court of Appeals for the 4th Circuit. The order was unexpected, as it was crafted without a request from either side, and Smithfield has argued that the order is a violation of the first Amendment. Mr. Bailey suggested that the appeal could play into Smithfield’s long-term plan to win at the appellate level even if juries continue to return verdicts against the company. Mr.
When a North Carolina federal jury awarded $50 million in compensatory and punitive damages to 10 homeowners over claims a hog farm had contributed significantly to their diminished quality of life, observers immediately labeled the decision as a “landmark” verdict. However, Bailey Brauer co-founder Clayton Bailey notes that upon closer review, there is the potential that the decision could have little or no lasting impact upon the agribusiness industry. Mr. Bailey explored the case in “’Landmark’ Hog Nuisance Verdict May Leave No Mark at All,” which appeared in the preeminent meat processing industry publication, The National Provisioner. Mr. Bailey notes that North Carolina state law caps exemplary damages which reduces the amount of the jury’s award significantly. “If the verdict withstands further scrutiny, the total recovery for all 10 plaintiffs, including both actual and punitive damages, would be somewhere around $3.25 million overall. That is a far cry from what the jury awarded,” he wrote. In addition, Mr. Bailey wrote, there are many issues ripe for exploration in the already announced appeal, including comments made by the judge as testimony concluded. “According to media accounts, the judge announced, ‘My only comment is that I am tired of looking at that dirty hog,’ referring to a life-size, waste-covered hog model that sat in the courtroom during the trial. If the company chooses, it could argue the judge’s comments prejudiced the jury, which could lead to a new trial altogether.” Mr. Bailey is respected for his trial and appellate work in complex tort and commercial cases in federal and state appellate courts throughout the nation. His work on both sides of the aisle has earned him significant professional honors and recognition, including being named a “Litigation Star”