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Judge apologizes for not being fair in hog industry lawsuit

By Charlotte Smith

The third federal lawsuit filed against Murphy-Brown/Smithfield Foods marches on in its second week with testimony from hog farmers and industry leaders. The plaintiffs’ side presses witnesses about farming practices and committee meetings while the defense side objects.

The crowd has dwindled in the US District courtroom in Raleigh since opening arguments last week. Farmers and their supporters fill half the seats in the courtroom gallery on the left side and the plaintiffs fill one and a half rows of the spectators seats on the right side. A few reporters are sprinkled throughout the seats jotting down notes along with some of the lawyers’ legal team members.

An attorney from Texas named Michael Kaeske and his team of lawyers began their legal pursuit against the hog industry in 2014. The first two cases in the series of lawsuit trails have awarded the Texas legal team and their plaintiffs millions of dollars after the verdicts were handed down. The Plaintiffs’ cases focus on the use of lagoons and spray fields for hog industry waste managemet.

Kaeske and his team continue to argue in each trial such practices present a public nuisance as they continue to go after pork producers. 

During this week of the trail Don Butler, a Bladen County hog producer and retired public relations officer from Smithfield, gave his testimony about the industry. News reports, committee reports and minutes from the 1990’s, opinion studies, hog industry procedures, lobbyists, political leaders’ press releases and Greenwood Farms are some of the items covered in the questions given to Butler.

Kaeske’s asked Butler about a focus study done where leaders, citizens, activists and hog producers were questioned about the hog industry. Kaeske asked for Butler’s view of a  statement, “Smell of swine odor is inside homes and outside the property,” given by some in the study. Butler testified to his mother living 800 feet from his hog farm. He claimed he would find it very hard to believe the odor could be smelled inside the home. He also testified to his mother hanging clothes outside on the line and not having any issues with lingering odors on clothes. 

When Butler was repeatedly asked about the focus study report Neale, the attorney representing Smithfield repeatedly objected stating Kaeske was being argumentative and it was three levels of hearsay. U.S. District Court Judge W. Earl Britt overruled several of the objections stating Butler may give his opinion on the opinion statements in the focus group study. 

Next Kaeske’s line of questioning for Butler moved to the focus of the lawsuit, Greenwood I and Greenwood II farms and their management. A photo of one of the plaintiff’s homes on Piney Woods Road was produced with a line drawn from the Plaintiff’s bedroom window to the hog farm’s road. 

According to Kaeske there is 34.65 feet from the Plaintiff Jimmy Jacob’s bedroom window to the hog farm road where hog trucks go and come all hours of the day and night. Butler was asked to weigh in with his opinion on the distance between the bedroom and the hog farm road.

Butler looked at the photo and pointed out the state road seemed to be about the same distance to the home as the hog farm road. Butler also reminded the lawyer and the jury the hog farms are regulated by the State of North Carolina and the road should be meet the zoning requirements given by the state. 

Next Kaeske presented photos of what appeared to be dirty hogs and lagoons to Butler for questioning. After many questions, objections, and Butler testifying he could not say what the photos were portraying, Kaeske would then lead the questions with, “Let’s assume.”

After multiple photos showing part of lagoons and Butler saying he was not sure what the photo was showing the jury was asked to leave for break. 

While the jury was out on break, Neale asked Judge Britt why the witness was allowed to be continually questioned about Greenwood I and II. “Mr. Butler has never seen the Greenwood operations,” Neale objected. 

After Neale explained Butler had not been to the property he was being questioned about and he was retired from Smithfield, Judge Britt said while chuckling, “I bet he wished he never worked for them,” referring to Butler’s employment with Smithfield.

Neale said firmly, “Your Honor, that is very inappropriate and not fair!” Judge Britt then apologized for his statement and acknowledged he may not have given Neale the opportunity to be heard during the trial proceeding. 

After the jury was brought back from the break the questions for Butler continued about the Standard Operating Procedure on Greenwood I and II. Kaeske flipped and flopped between a 2012 report card with a score of a 28 from the Greenwood operations to a letter addressed to one of the current Greenwood hog producers, Dean Hilton.

Butler testified the report card and the letter were proof the company [Smithfield] are listing things that are wrong and are needing to be fixed. 

Butler was also asked about his relationship with lobbying groups like Capital Link, LLC and elected officials. Butler admitted to Smithfield using the lobbying group Capital Link services and entering in agreements with the Attorney General to find alternative solutions for hog waste around the year 2000.

At least three objections were made by Neale because while Kaeske prepared to ask questions he would appear to be reading sections of memos or press releases; however, Kaeske was adding words not in print to the statements. After the first objection about Kaeske’s tactic Judge Britt sat up and moved closer to the computer screen to read the statement. 

After the third objection, Judge Britt said to Kaeske, “I believe you read that wrong.” 

China’s WH Group, bought Smithfield back in 2013 according to Kaeske and is the world’s largest pork producer. The hog producers Smithfield contracts with has not changed the method of waste management since the 1990’s according to Kaeske. One alternative approach found in the Smithfield funded study is the waste management method of Super Soils.

Kaeske asked Butler about Super Soils, the alternative method for the hog industry waste management. Butler stated the Super Soils were not an economically sound practice for hog waste management. 

Kaeske asked Butler if the hog producers could switch to the Super Soils alternative for hog farm waste management. Butler said, “If we wanted to put a bullet in our head and go out of business that would be the way to do it.”

Butler added the comment, “There is nothing to transition to today,” during his statement about alternative waste management for the hog industry.

Kaeske asked if the hog producers could cover the lagoons. Butler stated the lagoon covers would not be a good fix for the odor on the hog operations either because the majority of the odor produced on the hog farms do not come from the lagoons.

More testimonies are set to continue this week and next week for the Greenwood I and II operations located in Pender County. Hog industry operations included in the lawsuits stretch across Bladen, Duplin, Harnett, Johnston, Onslow, Pender, Robeson, Sampson, and Wake counties.

Previous related article:

Jury to decide country smell or collateral damage in hog industry law suit

Jury awards plaintiffs more than 50 million in historic hog nuisance lawsuit


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