Smithfield loses another Right-to-Farm legal battle over CAFOs
This clearly is a case of a judge creating law rather than interpreting the law.
Senior Judge W. Earl Britt issued a procedural decision in a new case on March 15, 2021, that let a complaint against Smithfield and Murphy-Brown, its subsidiary, go forward.
This case, Barden v Murphy-Brown and Smithfield, was started in May 2020. The defendant lost a motion to dismiss and motion to strike. Judge Britt did strike two claims of the plaintiff for civil conspiracy and unjust enrichment with prejudice. This was a small victory for common sense!
The plaintiff, Jeannie Mae Barden, claimed that Smithfield had been sold to the Chinese and as a result, had the financial resources to deal with the concentrated animal feeding operation (CAFO) in question. Murphy-Brown and Smithfield claimed certain of the plaintiff’s allegations amount to “…character assassination with prior bad acts and guilt by association.” So, Judge Britt stated, “While the connection may be tenuous, again, the court emphasizes that at this stage, it is not ruling on the admissibility of evidence offered in support of any allegations.”
Judge Britt who has ruled against Smithfield in a prior major case said these Chinese claims were not impertinent or scandalous. (Talk about stacking the deck!)
Another Right-to-Farm case
To put this in perspective, this is another Right-to-Farm case. In fact, there is a major section in the written opinion by the Judge on Right-to-Farm.
Murphy-Brown and Smithfield tried to claim that North Carolina’s Right-to-Farm Act (RTFA) was passed to stop the state’s loss of agricultural and forestry resources. As in most states, RTFA put into place certain requirements for the plaintiff to assert, if not, the complaint would be dismissed.
The CAFO defendants reported that other states such as Indiana protected CAFOs from alleged odors. Judge Britt even conceded that some states did immunize certain agricultural CAFOs against claims based on public or private nuisance or even trespass.
Not so in North Carolina.
The plaintiff, Ms. Barden, claimed odors from the CAFO created harm to her physical and mental health and decreased the value of her property. Judge Britt believed these claims allow the complaint to go forward even if there was an unintentional trespass.
The judge, being smarter than the legislators, said he would not “…restrict plaintiffs’ allegations to a nuisance cause of action.” The court went on to say that the plaintiffs’ claim of negligence could also be asserted and upheld.
The claim of negligence involves the existence of a duty that defendants cannot impose injuries on the plaintiff, Ms. Barden. Judge Britt bought Ms. Barden’s argument that Murphy-Brown and Smithfield have a duty to not create any dust, urine and fecal matter that might travel to neighboring properties. Judge Britt indicated there was “…alleged proximate cause”.
Consequently, Judge Britt found Ms. Barden has a claim for negligence.
The defendants attempted to strike some of these claims under the RTFA. Judge Britt would have none of this and is allowing the case to go forward.
The background of the judge
This clearly is a case of the judge creating law rather than interpreting the law. Senior Judge Britt was born in North Carolina and is 88 years old. He is the Senior United States District Judge for the Eastern District of North Carolina. He also was Chief Judge of the District. He was appointed by President Jimmy Carter and engaged in private practice from 1959-1980. He has been a judge for over 40 years. He has no agricultural background.
Judge Britt appears to have no understanding of the RTFA in North Carolina as judges have in other states. Judge Britt has ruled consistently against farmers and the North Carolina Right to Farm statute. This is a case to keep an eye on.