Hog farm trial testimony: Crusty pigs, 'feces in the air'

Was it feces? Mixed with urine? On the witness stand, a retired executive for Smithfield Foods, the largest hog producer in North Carolina, said he couldn't be sure.

Another picture: A hog lagoon, apparently partially dried out, exposing blackening crud. Isn't that stuff supposed to be underwater, the attorney asked? Doesn't it smell?

"You can't tell from this photograph," said Don Butler, a former spokesman for Smithfield who's also a hog farmer himself.

Perhaps that's foam floating in the water, Butler said, not solids exposed to air.

What about the measuring device that scientist has extended into the lagoon, clearly touching dry ground, attorney Michael Kaeske asked.

I don't know how heavy that is, Butler said. Maybe it's floating, he said.

The pictures won't be released to the public until after the trial concludes, but this was some of the back and forth Thursday in the third of 26 lawsuits filed against Smithfield hog operations in eastern North Carolina. The legal team representing neighbors of the farms hopes to convince another jury that the smells emanating from these lagoons and from the spray cannon used to spread waste on nearby fields represent a nuisance deserving of legal damages.

So far, neighbors are 2-0, winning a pair of multimillion-dollar verdicts against the Chinese-owned pork giant, though those amounts will come down significantly due to a state cap on punitive damages.

James Neale, Smithfield's attorney, protested Kaeske's line of questioning Thursday. Butler has never been on the farm where the pictures were taken, Neale said, and had "no personal knowledge about the last 60 minutes."

Kaeske read later from an inspection report. "Bones present on ledge," it said. The total score for the farm that day, according to company inspectors: 28 out of 100.

"Could be a chicken bone from lunch," Butler said. "I don't know what kind of bones they are."

The poor scores are evidence that Smithfield, and its Murphy-Brown subsidiary before it, kept a close eye on the farms in this trial raising its hogs, Neale said. His legal team had hoped to bring the jury to a farm to see and smell in person.

U.S. District Judge W. Earl Britt decided against it. Witnesses have testified repeatedly in the trials that the smell comes and goes, depending on wind and weather. And when it comes, they say, they're embarrassed to have people over and all-but-unable to be outside or to open windows a mile away from the farms.

This trial has seen evidence of DNA markers showing pig feces settled on nearby homes. Smithfield's legal team has raised chain of custody issues with those results. Researcher Shane Rogers, testifying this week, said he's satisfied the results are clear.

"There's a lot of feces in the air," Rogers said.

Plaintiff Joyce Messick testified this week that sometimes she feels like she's taking the smell with her to work and that hog trucks braking as they pass her home wake her up in the middle of the night.

Smithfield's attorneys asked why Messick built a new home in the area in 2011 and paid to add front and back decks to it. They showed the jury pictures of chairs on the front porch and a swinging chair in the front yard. There was a grill and a picnic table there, too.

At one point, an attorney walked Messick through pictures of muddy spots in her backyard, asking if any were from her septic tank.

No, she said. They're just low spots.

"You worried about a little mud in my yard versus 7,000 pigs with feces?" Messick asked later from the stand. "Really?"

Smithfield's attorney asked why Messick never complained before filing the suit, something they've asked of other plaintiffs as well. The legal teams in these cases are subject to a gag order and can't give press interviews, but farm supporters have suggested this is just a cash grab, led by attorneys from Texas who recruited some 500 plaintiffs from around North Carolina farms.

"Who you gonna complain to?" Messick asked.

Butler testified that the company has a robust system for tracking complaints. But he also acknowledged that, after new odor regulations went into effect in the late 1990s, the company didn't do any outreach to let neighbors know they could reach out.

Kaeske's team has gone to great lengths in this trial to lay out the hog industry's decades of political sway in North Carolina. He hammered Thursday on Butler's role in crafting the 1999 odor rules and showed the jury an internal memo Butler authored describing the regulations as "so vague and subjective that enforcement will be difficult."

Retired police officer Wesley Sewell, who lives near Messick but isn't part of the lawsuit, testified that he didn't know who to complain to, either. He said the hog smell is one of the worst things he's ever smelled. Only two worse came to mind: A fiery plane crash he responded to once and a decayed human body recovered after a week.

Sewell said he wears out fly swatters at his house. He said he stopped buying collards from a man down the road after seeing the spray field nearby.

There is also a septic pumping operation in this part of Pender County, something the Smithfield team brings up often. Witnesses for the plaintiffs say it is not the source of the terrible smell, their lawyers say the waste is treated by different process. Sewell told the jury he knows the difference between hog waste and human waste – he patrolled a municipal sewage plant as a cop – and he smells hog waste at his home.

Farm supporters have cast these suits as a battle for survival, saying Smithfield may pull its millions of hogs out of North Carolina and move them to a friendlier state. That, legislators and other area leaders say, would decimate eastern North Carolina's economy.

"People can do without a lot of things," Butler testified Thursday. "But they cannot do without food, and somebody's got to grow it."

Plaintiffs have said repeatedly that they don't want these farms shut down, just cleaned up. They point to newer technologies that can cut down on the smell. Smithfield has said these changes are too expensive to be realistic in North Carolina.

"I love pork chops," Messick testified this week. "I love bacon. But I don't love the odor."

"I feel that if you're shooting the feces, stuff, it's in the air," she said. "That's why I don't open my windows."