Premium Standard Farms’ expensive litigation fails to score the stinky pork producer a courtroom victory
For the first time in what seemed like weeks, sunlight glinted off the granite steps of the Jackson County Courthouse as Jonathan Harmon and two members of his legal team burst through the doors and outside. Grinning, their dress shoes clattering and blazers flapping, they raced toward 12th Street like stir-crazy kids ditching school.
For four weeks in Circuit Judge Jay A. Daugherty’s fifth-floor courtroom, Harmon had worn the serious face that corporate litigation necessitates. Harmon, a lawyer with McGuireWoods LLP, represents Premium Standard Farms, a pork manufacturer that owns large-scale confined-animal feeding operations (CAFOs) in northern Missouri. It was Harmon’s job to convince a jury that the stench created by 80,000 hogs living on PSF’s Homan Farm in Gentry County, Missouri, was just part of normal country living.
Harmon’s opponents contend that the stench is a life-altering nuisance to 15 family farmers who live within a mile and a half of the swine facility.
PSF’s lawyers were excited because, on that sunny day, the jury was going on a field trip. A bus would take the jury to Berlin, Missouri, past the homes of each plaintiff and the neighboring hog farm. The purpose was to give the jurors a sense of the properties’ proximity, not to detect hog odor — Daugherty had ruled that the bus’s windows stay sealed and its air vents kept closed.
While the jury rode around Gentry County, another group of citizens would sit around a table at Dunk’s Deli, a few blocks west of the courthouse on 12th Street. They, too, were deliberating the facts of the case. These were shadow jurors. PSF had installed them in the gallery during the trial in order to gauge how effective the plaintiffs’ arguments were.
PSF, which has used its pork-manufacturing profits to influence industry-favorable legislation and to fund industry-favorable science, had once again managed to convince people to see things its way. In two hours, the shadow jury returned the verdict that Harmon wanted to hear: Premium Standard Farms was not guilty of creating an odor nuisance.
Unfortunately for PSF, this wasn’t the jury that mattered.
The trial began February 3 of this year, and the shadow jury had been there from the start. Most onlookers assumed that the people furiously scribbling notes on the defendant’s side of the courtroom were law students or reporters.
Daugherty tells The Pitch that attorneys aren’t required to notify him when a shadow jury is present. In his 19 years on the bench in Division 13, he has rarely seen one. “I would assume they are very expensive and obviously time-consuming,” he says.
The weekend before the PSF trial’s start, employees for a company called Nolan Research made cold calls to Jackson County residents and said they were looking for people to participate in a market-research project. About 50 recruits who’d been promised $50 each went to a meeting at the Embassy Suites hotel near Westport. At the hotel, each was given a questionnaire to fill out and a nondisclosure agreement to sign. On February 2, 13 people received telephoned instructions to show up at the Jackson County Courthouse at 8 a.m. the next morning.
The shadow jurors entered the courtroom at the same time as the real jury and were ushered to the defendants’ side of the gallery. They had been instructed not to speak to anyone except one another, which is why those who were interviewed by The Pitch requested that their identities be kept confidential.
An older man with sloping shoulders and quick, darting eyes — the shadow jurors knew him as “Jack” — was the enforcer. During breaks, the shadow jurors were herded into an isolated corner of the fifth-floor hallway. If one of the men had to use the restroom, Jack went with him. Women shadow jurors went in pairs. Any who missed a day of the trial were kicked off the project. Each night, they were expected to wait by the phone for a call from L&E Research, a company based in Raleigh, North Carolina. The caller would survey their opinions of the day’s proceedings.
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For this, each shadow juror was paid $150 a day, plus compensation for parking fees. Lunch (a sandwich from Subway or from Quiznos) was covered. The real jurors pocketed just $6 a day.
Not many companies have the deep pockets to pay for a legal strategy that includes a shadow jury. Virginia-based Smithfield Foods, a giant in the meat-manufacturing industry, bought PSF in 2007 for $674 million. In its 2009 annual report, Smithfield calculated $12.5 billion in sales, and 2009 was considered a bad year.
One of the drawbacks to empaneling a shadow jury, however, is that the desire for money, rather than civic duty, compels the participants. One shadow juror felt strongly from the trial’s start that the plaintiffs should win, but when L&E called every night, the juror pretended to be on the fence, fearing dismissal and an early end to a $150-a-day paycheck.
The lead attorney for the plaintiffs’ case, Richard Middleton Jr., deserves credit for keeping the trial lively, despite an onslaught of technical testimony. Witnesses described, in punishing detail, odor-monitoring technology, next-generation hog-barn technology, and the chemical composition of pig feces.
Middleton, whose office is in Georgia, has a folksy manner and Southern accent. The shadow jurors called him Tommy Lee Jones. On the day of opening arguments, he wore a tie as green as a soybean field.
Middleton introduced each of his plaintiffs to the court. The men looked like farmers — some wore coveralls; most wore jeans. Their wives dressed in modest pantsuits and sweaters. All appeared to be in their 60s and 70s.
Throughout the day, Middleton referred to his plaintiffs as “real” farmers, some of whom work the same land that their ancestors farmed more than 100 years ago. “These people get up early to be good stewards of the land and to take care of their animals,” Middleton said.
PSF built Homan Farm in the mid-’90s. It’s home to 80,000 hogs at a time, split among 80 enclosed barns. The hogs stay at Homan for five and a half months, until they’re fat enough to be stacked in trucks and hauled away for slaughter.
In the barns, water flushes hog urine and feces through grates under their hooves and through pipes, emptying into one of 10 lagoons, each covers three or four acres and is 20 feet deep. The effluent is periodically sucked out of the lagoons and spread as fertilizer over the acres of PSF-owned land surrounding the Homan complex. Homan is permitted by the Missouri Department of Natural Resources and the Environmental Protection Agency to produce 83,977,740 gallons of hog waste a year. “That’s 230 gallons per day, seven days a week,” Middleton said in court.
Members of both juries were visibly disgusted by photos of the conditions at Homan, projected on a large screen. Neglect at the complex was evident: rusty barn roofs, broken pipes fixed with duct tape, spilled grain, garbage littering the grounds, remnants of a dead hog floating in one lagoon. Close-up shots of the lagoons revealed an inch-thick blanket of maggots covering the surface. “This is filth of a major scale,” Middleton said, “and the evidence will be that it is unprecedented, folks.”
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A shadow juror told The Pitch, “It looked like they’d either fired their maintenance crew or let the whole place decay out of spite.”
As Middleton spoke, Harmon looked on with a “who, us?” expression, fanning his face with a legal pad.
In previous nuisance cases, PSF retained Kansas City-based Shook, Hardy & Bacon LLP. After the Smithfield buyout, Lathrop & Gage became PSF’s local representation. Lathrop & Gage’s Jean Paul Bradshaw II, a lawyer known for his skill in white-collar criminal defense, sat with Harmon and four other attorneys at the defense table. The shadow jury referred to Bradshaw as “Harrison Ford” because of the way his reading glasses perched at the tip of his nose.
Charlie Speer was the most high-profile lawyer in the room, though it’s likely that neither jury knew it. The shadow jury knew him as “Mr. Burns” because of his slim build and white hair. In reality, Speer couldn’t be less like Homer’s miserly boss on The Simpsons. His gentle confidence kept the plaintiffs calm, even as their testimony was attacked. Speer tells The Pitch that he doesn’t coach his clients. “I tell them, ‘Just tell the truth.'”
Speer has devoted himself to battling large-scale animal-feeding operations. Because regulatory agencies have consistently failed to hold CAFOs accountable for the environmental damage they cause, Speer believes it’s his calling to do so through legal means. His aim is to force companies such as PSF to change their behavior by imposing punitive costs “because money is all they understand,” Speer says.
In the past decade, Speer has won $9.7 million in judgments against PSF. With the assistance of Middleton’s Georgia-based firm and New York’s Seeger Weiss LLP, Speer has filed nuisance cases against PSF in 11 Missouri counties.
Speer’s team was described as “talented and tenacious” by Smithfield’s general counsel in a 2008 memo marked “Attorney-Client Privilege Work Product” and “Confidential.” The memo was accidentally e-mailed by the counsel’s secretary to Jennifer Mann, then a business reporter for The Kansas City Star. It gave away the approximate dollar amounts that PSF spent defending against Speer’s previous three lawsuits: an average of $2.39 million for each. The memo described Smithfield’s litigation strategy as “Chinese water torture” — by requesting that the courts try the cases of 275 plaintiffs individually, the firm hoped to stretch its opponents’ more limited resources. The memo estimated that the trial schedule would extend through 2024.
After the memo went public, Speer’s team successfully petitioned the court to reconsolidate the cases. In Jackson County, Daugherty assembled the cases into groups according to the PSF facility associated with each complaint.
“They’ve spent 15 years trying to break me,” Speer says of these CAFOs and their counsel, “and I’m still standing.”
In January 1999, Missouri Attorney General Jay Nixon sued PSF and Continental Grain Company (the entity that then held PSF’s state permits) for violations of the Clean Air and Clean Water acts. Shortly after that, another lawsuit was filed against PSF in federal court by the Citizens Legal Environmental Action Network (CLEAN), a collective of Missourians living within three miles of PSF facilities. The EPA joined as a party to CLEAN’s lawsuit.
In 2002, PSF entered into a consent decree in the U.S. Court for the Western District of Missouri. This required the company to develop and install next-generation, odor-reducing technology at its 11 factory hog farms in northern Missouri, including Homan, by July 31, 2010. At first, the consent decree allowed PSF to cap its spending at $40 million, but in a later modification, the federal court removed the spending cap. PSF had to install the technology, regardless of its price tag.
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Three scientists on an expert panel studied PSF’s odor problems and concluded that biofilters comprised the technology best suited for PSF’s hog barns. The panel reiterated its recommendation at least once a year, with increasing urgency.
Meanwhile, at Homan, PSF employees constructed “air dams” — sheets of black plastic wrapped around wooden two-by-four frames and propped up behind the fans at the ends of each hog barn — in an effort to dissipate the odor by directing it upward. They tried to pass off rows of newly planted trees as next-generation technology, calling them “Vegetative Environmental Buffers.” Finally, they installed a system of motorized agitators in some of the lagoons to stir up the hog waste and evaporate some of its chemical concentrations, a method used by municipal water-treatment facilities. The bubbling shit fountains caused the lagoons to stink even worse.
Middleton argued that if PSF had spent its considerable resources installing biofilters, as it was ordered to do, rather than toying with cheap, ineffective alternatives, it could have avoided further litigation altogether.
Stan Berry, the first plaintiff to take the stand, painted a definitive portrait of what life on his property had become, thanks to PSF. He described how sweet-smelling April showers, happy summer raindrops and even winter snow had become permeated with the eye-watering stench of hog waste.
Berry and his wife, Norma Jean, testified that they couldn’t open their windows anymore. During the day, the sun’s radiation lifts the odor-causing chemicals from the lagoons high into the air, to be dispersed by wind in the upper atmosphere. But when the earth cools at night, the stench creeps low to the ground and spreads wide, like a reeking fog, into the Berry home.
“It’s like an invasion of my most treasured thing, my own home, without interference from anyone,” Berry said, his voice wavering.
Harmon, in the unenviable position of maligning elderly farmers, attempted to cushion his defense of PSF in his opening statement. “You need to know that we are not here to disparage country living or farms, but we have to get to the truth and not be inflamed by the other things,” he said.
Simply put, Harmon said, hogs stink. But to sue under Missouri nuisance laws, the plaintiffs would have to prove not only that they could smell the hogs at Homan but also that the smell “substantially impaired” the use and enjoyment of their property. One set of plaintiffs dared to purchase new lawn furniture in the years after 2002, Harmon pointed out. People who can’t stand to be outside don’t do that, do they?
Harmon went on to introduce a parade of witnesses for PSF who claimed that Homan Farm didn’t smell. One was Joe Heafner, a former Missouri Department of Natural Resources wastewater-treatment inspector. He testified that, from 2001 through 2008, he visited the Homan property three times a year and walked around the lagoons and the acreage to which the effluent is applied. He testified that he’d never smelled anything foul.
One of the shadow jurors, Fake Juror 1 (or FJ1 for short), doubted Heafner’s testimony because of the man’s size.
“The guy’s overweight,” FJ1 tells The Pitch. “There’s no way he could walk around every barn and every lagoon like he said he did — over 4,300 acres — in one day.”
A scientist named David Parker, testifying for the defense, also rubbed FJ1 the wrong way. Parker admitted that he’s an adviser to the National Pork Producers Council, which lobbies for the country’s largest pork manufacturers.
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“That ding-dong was so prideful and pompous, I thought his head would explode,” FJ1 says.
Another shadow juror, FJ2, reserved disdain for the plaintiffs: “I just think one of them decided to sue, and the rest of them jumped on the bandwagon because it looked like easy money.”
By the time Pamela Dalton took the stand, both juries were already familiar with the Ph.D.’s name. Dalton, who works for the pork-industry-funded Monell Chemical Senses Center, was commissioned by PSF to complete a $2.8 million odor study, and the defense had staked much of its case on Dalton’s results.
A dazzling amount of information had been collected by Dalton’s paid “sniffers” who, for $17 an hour, gathered data near each of the plaintiffs’ properties during daylight hours with a device called a nasal ranger. The bad-smell-to-no-smell ratio reported by the sniffers was illustrated to the court in pie charts. The color-coded diagrams were nearly monochromatic in favor of the “it’s all in the old folks’ heads” defense.
Middleton clearly relished the opportunity to blow cannonball-sized holes in Dalton’s study. At one point, he asked Dalton whether people who smoke are usually discouraged from taking part in odor studies.
“It’s very, very discouraged, yes,” Dalton said.
“How many smokers did you have?”
“I’m not sure,” Dalton answered.
“Well, let’s look and see,” Middleton said, firing up a montage of clips from the sniffers’ videotaped depositions. What followed was a comically prolonged series of affirmative replies to the question “Do you smoke?” The jurors smiled.
Middleton turned back to Dalton. “That was 15 or 16 people. Forty percent of the people out there working are deviating from the protocol. Is 40 percent a deviation that is acceptable in science, ever?”
Dalton, unperturbed, continued to defend her study, but Middleton had made his point.
The real jury took just a few hours over two days to render its $11 million verdict against PSF. Harmon shot out of the courtroom without shaking the hands of his opponents. Middleton waited until the defense counsel were all out of sight before crouching in a boxer’s stance and punching the air in victory. Speer allowed himself a broad smile.
That day, PSF issued a press release, announcing its intent to appeal and scolding the state: “In light of this decision and in view of the continuing hostile environment toward live hog production, we have serious concerns whether we will ever make any future investments in the state of Missouri.”
When the real jurors filed into the hallway, they dropped their impassive expressions and greeted the plaintiffs and their lawyers like fellow attendees of a long-overdue family reunion. One juror wrapped attorney Stephen Weiss in a bear hug. Their decision had been unanimous, and they’d deliberated only a few hours, mostly about how much to award the defendants. Some had wanted to give more.
A juror named Denise Benbrook smacked Middleton on the arm and teased him. “The faces you’d make — I had to try my hardest not to laugh with you,” she said.
The shadow jury hadn’t been allowed in the courtroom to hear the $11 million verdict. Reading about it the next day, FJ2 was stunned. In their own deliberations, the shadow jurors voted six to one for the defense. “With us, it came down to the fact that we didn’t think the plaintiffs proved substantial impairment,” FJ2 says.
As they deliberated, FJ2 says, they agreed that PSF could be doing more to address its odor problem. They also agreed that they never wanted to eat pork again.
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“Every time I see bacon, I think of that trial,” FJ2 says. “I used to love bacon.”
