McKiver v Murphy-Browne

24 November 2020 ,Samuel March Judgment: McKiver v. Murphy-Brown, LLC, No. 19-1019 (4th Cir. 2020) On 21 November 2020, the US Court of Appeals for the Fourth Circuit affirmed a jury's verdict that a commercial hog 'producer' was liable for both compensatory and punitive damages.

The Facts

Murphy-Brown, LLC (“the Appellant”) is a commercial hog producer, who contracted with third-party “grower” Kinlaw Farms LLC (“Kinlaw”) to operate an industrial pig feeding facility in North Carolina. The operation at Kinlaw annually maintained nearly 15,000 of Appellant’s pigs, who generated approximately 153,000 pounds of feces and urine daily. The Appellant was sued by a group of Kinlaw’s neighbours (“the Appellees ”), almost all of modest means and minorities, who live in close proximity to Kinlaw. The Appellees sought compensation in respect of odours, pests, and noises attributed to farming practices implemented by the Appellant at Kinlaw. At first instance the Appellees won, and the jury awarded damages of $75,000 in compensatory damages per plaintiff, along with a total of $5 million in punitive damages, which was subsequently reduced to $2.5 million due to North Carolina’s punitive damages cap.

The Issues

The Appellants appealed, raising a wide range of arguments including points about joinder, limitation, admissibility of expert evidence, damages in private nuisance law and whether the issue of punitive damages should have been left to the jury. The Decision The opinion was written by Judge Thacker. Finding for the Appellees on all but one issue, the court affirmed the verdict of the jury in respect of liability for compensatory and punitive damages. However, the court vacated the jury's judgment as to the amount of punitive damages and remanded for rehearing on that issue alone without the potentially inflammatory or prejudicial evidence about parent company’s finances.

Commentary On the face of it, this was an appeal on points of law pertaining to North Carolina law and civil procedure. It did not turn on laws that are explicitly animal protection laws, indeed the opinion is able to deal with the legal issues with no substantial thought given to the lived experiences of the 15,000 pigs per year at the centre of the claim. However, animal advocates internationally will be interested in the judgment of Judge Wilkinson who, as well as concurring with the opinion of the court, also wrote separately and in considerable depth analysing “the full harms that the unreformed practices of hog farming are inflicting.” [p68]

He prefaces this part of his judgment by acknowledging the centrality of hog farming to the state’s economy, but then goes on to deliver a judgment so scathing and impassioned that substantial passages of it bear reproducing in full. He writes at pp70-72: "How did it come to this? What was missing from Kinlaw Farms—and from Murphy-Brown—was the recognition that treating animals better will benefit humans. What was neglected is that animal welfare and human welfare, far from advancing at cross- purposes, are actually integrally connected. The decades-long transition to concentrated animal feeding operations (“CAFOs”) lays bare this connection, and the consequences of its breach, with startling clarity. Once, most hogs were raised on “smaller, pasture-based hog farms.” […] Now, the paradigm has shifted: “large numbers of hogs, often many thousands” crowd together in each of the many cramped “confinement structures” that comprise the typical hog CAFO. […]. The following illustrates how Kinlaw, an endpoint of this pasture-to-CAFO transition, created serious ecological risks that, when imprudently managed, bred horrible outcomes for pigs and humans alike.

The warp in the human-hog relationship, and the root of the nuisance in this suit, lay in the deplorable conditions of confinement prevailing at Kinlaw, conditions that there is no reason to suppose were unique to that facility. Confinement defined life for the over 14,000 hogs—all of which Murphy-Brown owned—that Kinlaw Farms had crammed into its twelve confinement sheds. […]. Consistent with Kinlaw’s role as a “finishing” facility, hogs arrived at around forty pounds, to be fattened to over seven times their starting weight. […]. The one thing that never grew with the hogs, though, was the size of their indoor pens. Even though “[h]ogs grow bigger now,” id., the pens’ design has not changed a whit in twenty-five years. See […]. The sad fate of Kinlaw’s hogs was, therefore, to remain in these densely packed pens from the time they arrived to the time they were shipped for slaughter, straining in vain as their increasing girth slowly but surely reduced them to almost suffocating closeness.”

Judge Wilkinson relies heavily on an amicus brief, filed by The Humane Society of the United States, along with several other organizations, highlighting how cruelty to animals and serious environmental harms and threats to human health are interconnected. He notes health risks to workers, the effect on air quality and water quality, and the risks of zoonoses and antibiotic resistance. He also recognises an “uncomfortable truth”, namely that “these nuisance conditions were unlikely to have persisted for long—or even to have arisen at all—had the neighbors of Kinlaw Farms been wealthier or more politically powerful”, noting that North Carolina’s ban on new systems implementing the same waste treatment methods arose after CAFOs threatened to expand into a General Assembly member’s home district of Moore County, a popular destination for golfers and tourists. [p79] Wilkinson’s judgment, although separate to the binding opinion of the court, can be cited by animal advocates as a persuasive and powerful reminder that “The scale of industrial hog farming is no warrant to ride roughshod over the property rights of neighbors, the health of workers and community members, and the lives of the hogs themselves.” [p79] *In the UK, the “Appellees” would be called the “Respondents” and the “Plaintiffs” would be called “Claimants”