What's Next: The Plaintiff's Perspective - Jurors Send an Unmistakable Message to Corporate Factory Farming
In this regular feature, Bulletproof interviews top plaintiffs' attorneys for their perspective on the crises likely to affect businesses in the near future.
Today we talk to Richard Middleton, a Savannah, Ga.-based trial lawyer who won a recent case in Missouri against Premium Standard Farms (PSF). Mr. Middleton’s clients are Missouri farmers variously affected by vile odors and deplorable sanitary conditions arising from PSF’s factory pig farm close by their own farms in Jackson County.
On March 4, the jury in that trial awarded plaintiffs $11 million, which was only the latest in a series of court awards and consent decrees involving PSF. With two past cases involving some of the same plaintiffs, total judgments have so far equaled around $21 million.
Premium Standard Farms is a subsidiary of the publicly traded Smithfield Foods.
Why was yet another trial needed, especially since PSF says it spent $39 million to remediate the problem?
Richard Middleton: PSF was required by the court-appointed expert panel to remediate conditions – described by one expert witness as worse than anything he’d ever seen in the slums of Calcutta – by installing next-generation technology on their waste lagoons, their land applications, and, most important, on the barns housing the animals. Of the $39 million they say was earmarked for remediation, $10 million was spent on a for-profit venture to convert solid waste into fertilizer pellets. That enterprise failed.
In fact, the price tag for the mandated bio-filters was hundreds of millions of dollars. Absurdly, in lieu of this required technology, PSF simply set up wind deflectors. PSF’s argument was that the next-generation technology was not economically feasible. Of course, economic feasibility was never an issue under consideration. Whatever the economic cost, it was so ordered.
PSF is still not in compliance and is facing further action by Missouri’s attorney-general in August. Additional plaintiffs’ cases are likewise headed for court.
Is it possible that, as an alternative to investing so much in new technology, litigation is for this company an acceptable cost of doing business?
Richard Middleton: The problem with that interpretation is that PSF is litigating so aggressively and spending so much on legal fees. It doesn’t make sense for them to be doing so unless they’re arrogant enough to think they can actually start winning these cases.
What message do you have for the shareholders of parent company Smithfield Foods?
Richard Middleton: I’d only opine that their company has a questionable litigation strategy and is wasting significant resources. Early on we offered to wrap this whole thing up in a class action. We’d efficiently dispatch the litigation end of it while everybody would sit down and start coming up with reasonable solutions. Those solutions could certainly have included a practicably new technology investment schedule.
But PSF wanted none of that. Instead, they opted to fight every round. In the recent trial, they produced two expert witnesses who had originally been tapped as experts by the expert panel. The defendant’s case crumbled when I exposed the glaring conflict to the jury. I mention it here as an example of the defendant’s arrogance; presumably, they thought they could get away with it. At the next trial, they’ll be using another expert witness whose preposterous data was totally debunked at the last trial..
I happen to be a veteran of the asbestos wars where I certainly saw some inexplicable behavior among companies in that industry. But I’ve never seen arrogance like this.
PSF has threatened to cease future investments in Missouri. How do you assess that strategy?
Richard Middleton: At bottom, they have nothing else, but it’s not a useful weapon for them. Do they think the jurors at the next trial, or the state AG, are going to buckle under such threats? That kind of bullying is not all that rare in litigation but I’ve never known it to work.
Is this case anomalous or is it relevant to corporate factory farming beyond these specific circumstances?
Richard Middleton: This case speaks to the very essence of corporate factory farming today and the message of the case is likewise relevant industry-wide. These corporations have bought their way around Washington, stifling reform. Affected communities and individuals – including individuals who serve on juries – are fed up with the results. The consequences for the industry will likely be dearer than if they had done the right thing in the first instance.
Animal growth rates are out of control as bottom-line pressures force more and more production. As a result, you have the kind of grotesque conditions that we saw with PSF in Jackson County. But those conditions are just the tip of the iceberg. Think of the vicious cycle when, because too many animals are housed together, you need to pump up production of antibiotics, which, in turn, eventually produces staff-resistant bacteria and sickening effects on human consumers as well.
Like all industries that have fought needed regulation at every turn, factory farming will pay the consequences in increased litigation volume and increased litigation severity.
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Larry Smith is Senior Vice President of Levick Strategic Communications, the nation's top crisis communications firm, and a contributing author to Bulletproof Blog. Connect with Levick on Twitter: @Levick.