It used to be that America’s hogs were produced on small farms – with anywhere from a couple of dozen hogs to a couple of hundred.
Then hog farms were replaced with hog factories.
They are now called confined animal feeding operations (CAFOs).
The major CAFO player, Smithfield Foods, contracts out with small operators, mostly in eastern North Carolina. Buildings are built to house thousands of hogs.
Hogs produce anywhere from five to ten times more waste than humans. They relieve themselves on slatted floors. The waste drops down through pipes into unlined lagoons. And the resulting smell and disease is a disaster for those living in the surrounding communities – mostly African American residents whose families have lived there for generations.
Their complaints landed on deaf ears until about 2013, when they met a lawyer named Mona Lisa Wallace.
She sued Smithfield arguing that the company’s factory operations were interfering with the reasonable use and enjoyment of her clients’ homes.
In federal court in Raleigh, Wallace and her legal team brought civil actions against Smithfield to force change within the industry.
Smithfield vowed never to settle the cases.
But after losing the first five bellwether cases, Smithfield cried uncle and settled the remaining ones.
The story of the cases against Smithfield is told by Corban Addison in his new book Wastelands: The True Story of Farm Country on Trial (Penguin Random House, 2022).
How did the Smithfield case come in the door?
“Another lawyer brought it to us, but at that same time, our law firm was already involved in the health effects of hog waste,” Wallace told Corporate Crime Reporter in an interview last month. “We had brought the case involving a young man who had died when he was transferring waste from an overhead tanker at a Smithfield processing plant. That lawsuit was already pending.”
“We were extremely interested in the hazards of the hog waste and also of course, the environment because our firm has always been very interested in tackling environmental issues.”
Smithfield immediately launched a public relations attack on the basis that the case was brought by an out of state lawyer. But you are not an out of state lawyer.
“The industry tried to get everyone to not believe in our case. I’ve practiced here for 40 years. I’ve lived here all my life as has Bill Graham and everyone here who was involved in the case. There was really only one out of state lawyer who was involved in this case, and his name is Mike Kaeske. He’s an incredible trial lawyer out of Texas and Utah.”
“Of course, most of Smithfield’s legal team were out of state lawyers. The Smithfield attorney who tried the fourth and fifth cases was from Texas himself.”
You are in Salisbury, which is west of I-95 in North Carolina. Most of the factory hog farms are east of I-95 in North Carolina. Did you have a sense of the extent of the problem when the case came in the door?
“When I first got the case of the young man who at 26 years old had inhaled hydrogen sulfide on that tanker and died almost instantly, I began researching processing plants, and the types of gasses that are given off by hog waste.”
“I knew a little bit about it, but it wasn’t until I traveled down to eastern North Carolina that I became aware of just what a horrific situation it was. The odors, the hogs, the flies, the buzzards, the noise and the traffic. It was just a completely unreasonable situation – for the environment and for the people who lived near these hog factories.”
The hogs defecate five to ten times more than humans defecate. When the hogs defecate, where does it go and how does it adversely affect the neighbors?
“They are called concentrated animal feeding operations (CAFO). There might be as many as five or more buildings in each hog factory. And each one of these buildings holds thousands of hogs. The hogs never see the light of day. They are put in these buildings and they are fed and they poop and they are fed and they poop. They are intentionally fed to get as much weight gain as possible.”
“The waste – the urine and the feces – goes through wooden slats on the floor through an underground pipe. And those millions and millions of gallons of waste goes through an underground pipe into what is often an unlined lagoon.”
“It might be the size of a football field – and it holds waste – feces and urine combined. Much of it evaporates into the air. And you can imagine what it’s like down there in eastern North Carolina. A lot of these CAFOs are built in floodplains. And so the waste that remains in the massive lagoon, the millions of gallons, what doesn’t evaporate essentially is literally sprayed in the air onto the surrounding land. And these factories are essentially in the same community, often right next door to the homes. And the homes are generally homes of minorities in poor communities. And there is often a local church nearby.”
“The lagoon and spray system significantly impairs the ability of people to use and enjoy their homes, their churches and their way of life.”
These farmers are contract farmers with Smithfield and they spray their own fields to fertilize them?
“They call it fertilizer, but often you will see it’s just land that often is barren. It’s just a way to get rid of the waste without having a proper system to dispose of waste.”
In 2013, Smithfield was purchased by a Chinese multinational.
“Yes, the company was Shuanghui. And then it changed its name to WH, a more American sounding name.”
China is a huge importer of pork, a huge consumer of pork, but in the pigs that they grow, that they raise, they don’t allow for this lagoon and sprayfield system. They spent millions of dollars to dispose of the waste.
This is how Addison Corban puts it in the book Wastelands:
“The cost of raising a hog in China is about half that of raising a hog in North Carolina. Hogs in China urinate and defecate just as much as hogs in the United States, but the Chinese government doesn’t allow its hog farmers to use lagoons and sprayfields. It has invested in treatment facilities for wastewater, digester systems that convert manure into biogas for heating and electricity generation, and biological odor control systems to protect neighbors. When it comes to managing hog wastes, China is a paragon of progress and North Carolina is a backwater of pollution.”
“Pork is China’s primary meat of choice,” Wallace said. “And you can raise and export bacon and hog products much much cheaper here in eastern North Carolina and other parts of this country than you can in China. And that’s because of the lack of regulations and essential controls on the hog and the pork industry in the United States. And the lack of regulations and controls are directly related to the industry practice of lobbying, and just having so much influence.”
“As a result, you have the problem of groundwater and surface water contamination. You have problems with leaching. You have massive problems because of the heat down in eastern North Carolina with the flies and buzzards. And the trucks made an atrocious mess. Prior to our litigation, the trucks would run 24 hours a day.“
“And can you imagine the sound of trucks loaded with dead hogs coming within feet of people’s homes, especially when their children are outside? Or the lights in the middle of the night shining into their bedroom windows? And just the sound of the hogs themselves.”
Why are dead hogs being moved out of the feeding facilities?
“A significant number of hogs in these buildings would die, many of them from breathing in the gas itself, from the heat, from disease. When there are thousands of hogs that close together, it’s easy to spread disease from one to the other. There is a significant death rate of hogs, even before hogs are taken out of the building to take them to slaughter.”
“Prior to our lawsuits, the industry would dump the hogs in big boxes out in the open and they would throw the carcasses of the dead hogs into the boxes. And of course, these boxes would be located in the community, sometimes literally beside someone’s home.”
“Where you have dead hogs, they are going to attract flies and buzzards. And the odor is just atrocious. The cheapest way of disposing of hogs is to throw them out into the open hot air. And they would wait a couple of days before the truck came to get them.”
Where would they take the dead hogs?
“They would take them to a processing plant where they would be used for dog food and other products.”
“The whole process needs to change in the US. The lagoon and spray system are way outdated. There is new technology available but they simply do not want to spend the money to implement this new technology. And because of their political influence, unfortunately, the state and the environmental regulators are not requiring them to implement it.”
When these cases were first filed, Smithfield vowed never to settle, to take all the cases to court. But after five federal trials and that massive $473 million punitive award, they settled the rest of the cases. How many more cases were there?
“I can’t address anything regarding the settlement. It’s confidential. We initially filed on behalf of 26 communities. And there were approximately 525 individuals. There were 84 individuals represented in the first five bellwether cases. In those bellwether trials, the federal judge allowed the plaintiffs to choose a group out of the 26 communities – and when I say choose a group, you could choose two or ten. A reasonable number. Then Smithfield chose the group for the second trial, we chose the group for the third, Smithfield for the fourth, and we chose for the fifth. That’s how it worked.”
“Very few individual cases – less than 30 individual cases – we tried. That means that about 500 individual cases were pending when they settled.”
The verdicts had to be unanimous. And in those five trials, there were 60 total jurors. And the call came to the same decision?
“Each and every individual jury in each and every verdict form concluded that there had been an unreasonable and substantial interference with the reasonable enjoyment of the property. One family had owned their property back almost 100 years.”
From the time the cases came in the door to the time they all settled, what was the time span?
“It would have been about seven years – from 2013 to 2020.”
During that time, the industry went to the North Carolina legislature and restricted the rights of homeowners to bring similar lawsuits.
“There were numerous laws that were changed during the period these cases were pending. A law was passed that made farm records private and confidential so that attorneys and others could not get access to them. There were anti-gag laws that would make it a misdemeanor for employees at processing plants to provide certain information. There was a law that affected our ability to use drones. There was a law passed that made it much harder to bring a lawsuit for a family member who had lived there, moved away and came back.”
“And then ultimately, after we got over all of these obstacles and we were finally able to go before a jury, there was a bill that was quickly put into the legislature that would have overruled a federal court order essentially allowing us the right to seek a trial by jury and have our case heard.”
“It was admitted that the purpose of the bill was to get our cases dismissed. That bill was voted on by the North Carolina legislature. By a two vote margin, our cases were allowed to proceed to trial. But it did significantly limit future nuisance recoveries to the declines in a property’s market value. It left very little if any right at all for them. The homes were not rented out. They were modest homes.”
The industry is still doing lagoon and spray. But the industry did make changes in response to your litigation.
“During the third and fourth trial, industry witnesses began to testify about positive changes they had made. We wanted the new technology implemented. We wanted the lagoons capped. And the industry has covered its lagoons in some of its facilities. We wanted the lagoons to be lined. There was significant groundwater pollution because of leaching. There have been fish kills and contamination of drinking water. And some changes were made by the industry.”
“In response to our lawsuit, the truck traffic began running generally just during daylight hours and stopped running 24 hours a day. They would stop before late evening. They implemented refrigeration units to transport dead hogs. If the children are playing outside, they won’t get the horrific odor on their clothes from the dead hogs going by.”
“Positive changes were made. But I feel strongly that the lagoon and spray system is the problem and the industry has to get rid of it. It’s archaic. It destroys the health of the people.”
Do you anticipate a movie being made on this book?
“I certainly hope so. We were being attacked from day one by Smithfield. But we never told our story to the press. We simply told it to the juries. We decided to try the case before the juries and not the press. We agreed to be interviewed in the book. Now that the book is out, I’m hoping that the public will read it and the industry will change its ways. I’m hoping it will be taught in law schools.”
[For the complete q/a format Interview with Mona Lisa Wallace, see 36 Corporate Crime Reporter 36(12), September 19, 2022, print edition only.]