North Carolina's Top Verdicts & Settlements 2018.

Byline: David Donovan

Hog farm verdicts kick off with $50.75M verdict

A massive federal jury verdict is a poor sign for North Carolina's porcine.

In a potentially groundbreaking decision, a jury in the state's Eastern District has awarded $50.75 million in damages to 10 residents living near an industrial hog farm in Bladen County to compensate them for the nasty odors produced by the farm's porkers.

The local residents had filed a private nuisance lawsuit against Murphy-Brown, a subsidiary of Smithfield Foods, alleging that the farm's stench interfered with their enjoyment of their property. On April 26, the jury awarded the plaintiffs $750,000 in actual damages, and $50 million in punitive damages.

The verdict is the first ever of its kind against North Carolina's hog farming industry, and could lay down a potentially significant marker for other similar lawsuits that are currently pending against pork producers in the state.

Previous attempts to sue hog farmers fizzled out in the 1980s after North Carolina passed a "right to farm" law that generally prevents nuisance lawsuits against agricultural operations. But the law permits such lawsuits when the nuisance results from the negligent or improper operation of a farm. The plaintiffs had alleged that Murphy-Brown had failed to update its operations to employ modern best practices to minimize its effect on the surrounding community and that it could have taken reasonable steps to reduce the stink.

Last year, in response to the lawsuits, the state's General Assembly overrode a veto by Gov. Roy Cooper to amend the right-to-farm law to cap damage awards in nuisance lawsuits at the market value of the property affected. An effort to make the change retroactive foundered after concerns were raised about whether such a change would be constitutional.

The dispute got ugly at times. The suits were filed in August 2014, shortly after Smithfield was purchased by WH Group, a Chinese corporation. The original complaints made numerous references to the Chinese government, its ruling Communist Party, and its military, the People's Liberation Army. Judge Earl Britt ordered the plaintiffs to edit out those references, finding that they were "highly prejudicial to defendant and have little to no bearing on plaintiffs' underlying claims."

In April, Britt denied a request by the defendants to have jurors visit the farm in question to smell the odors for themselves, saying that a quick visit to the farm wouldn't give jurors a true feel for the conditions. (The plaintiffs contended that the company had just undertaken an unprecedented effort to remove millions of gallons of waste from the farm, possibly in direct response to the lawsuit.)

Mona Lisa Wallace and John Hughes of Wallace and Graham in Salisbury represented the plaintiffs, along with attorneys from two law firms based in Texas.

"We are pleased with the jury's verdict," Wallace said in a written statement emailed to Lawyers Weekly. "These cases are about North Carolina family property rights and a clean environment."

Attorneys at McGuireWoods represented Murphy-Brown, with Mark Anderson of Raleigh serving as lead in-state counsel. Anderson said that the company was disappointed by the verdict and believes that there are some very significant issues which will be addressed on appeal.

"There are 10 additional cases already set. This is a marathon, not a sprint," Anderson said. "The future of agriculture in North Carolina hangs in the balance."

The punitive damages were later reduced due to the state's cap on punitive damages. Since this verdict, the plaintiffs have prevailed in three other cases, including one in which the jury awarded another group of plaintiffs $473.5 million, which was later reduced to $94 million.

VERDICT REPORT PRIVATE NUISANCE

Amount: $50.75 million

Injuries alleged: Interference with enjoyment of property

Case name: McKiver et. al. v. Murphy-Brown, LLC

Court: U.S. District Court for the Eastern District of North Carolina

Case number: 7:14-cv-00180

Judge: Earl Britt

Date of verdict: April 26, 2018

Special damages: $50 million in punitive damages [later reduced by court order]

Attorneys for plaintiff: Mona Lisa Wallace and John Hughes of Wallace and Graham in Salisbury; Eric Manchin, Michael Kaeske and Lynn Bradshaw of Kaeske Law Firm in Austin, Texas; and Lisa Blue Baron of Baron and Blue in Dallas, Texas

Attorneys for defendant: Mark Anderson and Matt Mathews of McGuireWoods in Raleigh and Richmond, respectively (lead attorneys)

Jury awards $32.7M to wife of mesothelioma victim

The family of a former factory worker who they say suffered horrifically after developing mesothelioma has won a jury verdict against an insulation company worth $32.7 million.

Franklin Delano Finch worked at a Firestone tire factory for 20 years, from 1975 through 1995. He installed molds in tire equipment, said Bill Graham of Wallace & Graham in Salisbury, who represented Finch's widow along with Jessica Dean of Dean Omar & Branham in Dallas, Texas.

Finch later developed mesothelioma. Covil Corp., a now-defunct pipe insulation company, installed asbestos-laden insulation in the plant, even though mesothelioma was already widely known to be caused by asbestos, and this caused Finch's illness, Graham said.

Finch died in 2017, but filed a lawsuit against Covil and other defendants, who have settled the case, before he died.

Graham argued that Covil installed the insulation "without regard to the safety of the workers in the plant," Graham said. "And the jury agreed with all that."

The jury handed down the verdict on Oct. 19, 2018.

Graham said evidence showed that Covil sold asbestos-laden insulation to Firestone into the late 1970s and "this lack of morality continued on into the trial."

Graham said that the company's owner testified that it stopped selling asbestos insulation in 1973, but invoices submitted to Firestone contradicted that claim.

"Covil refuses to own up to its mistakes from the past, and Mr. Finch's family a devoted wife and three loving children is one of many families who has suffered because of it," Graham said.

The defense argued that there was no concrete evidence that Finch was directly exposed to Covil insulation because the Firestone plant was so large and the amount of insulation the Covil sold to the plant was small in relation to the plant's size.

Finch was heavily involved in the maintenance of presses that contained asbestos gasket. His primary job at Firestone involved working directly with asbestos supplied by another company, so it was less likely that Covil's product was the cause of his cancer, the defense argued, according to Graham.

VERDICT REPORT ASBESTOS LITIGATION

Amount: $32.7 million

Injuries alleged: Death from mesothelioma

Case name: Finch, et al v. BASF Catalysts LLC et al

Court: U.S. District Court for the Middle District of North Carolina

Case No.: 1:16-cv-01077

Judge: Catherine Eagles

Date of verdict: Oct. 19, 2018

Attorneys for plaintiff: Bill Graham of Wallace & Graham in Salisbury and Jessica Dean of Dean Omar & Branham in Dallas, Texas

Attorneys for defendant: William Silverman and Mark Wall of Wall Templeton in Raleigh and Charleston, South Carolina, respectively

Jury awards $13M in high-speed rear-ender

A Robeson County jury has awarded a $13 million verdict to the family of a man who was killed by a tractor-trailer driver who plowed into the back of his pickup truck at full speed in a 2015 crash. The jury also awarded $4 million to another victim who was severely injured in the wreck. (See No. xx for that verdict report summary.)

Fayetteville attorney Wade Byrd reports that John Bonnabel, the deceased, was a mechanic who was driving behind a malfunctioning bobtail trailer as it limped back to the repair shop. Byrd said that both Bonnabel and Keith Pate, who was driving the bobtail, were traveling between 20 and 30 mph with their flashers on down a flat, straight stretch of I-74, in clear weather, with over a mile of visibility.

An 18-wheeler coming up behind them failed to slow down or take any evasive action before it rammed into the back of Bonnabel's truck at a speed of about 69 mph. The truck was launched from the highway and rolled several times down an embankment into a tree, killing Bonnabel immediately. The tractor-trailer continued on, slamming into the back of the bobtail. Pate suffered a permanent brain injury as a result of the collision.

A three-part trial began on April 16 with a liability phase. After the jury found on May 2 that the defendant driver and his company were liable for the wreck, separate damages trials were held, first for Bonnabel and then for Pate. Byrd said that for each phase of the trial, the jury was out for only about 30 minutes before returning with its verdict. He added that the damages phases were split because he didn't feel that it would be fair to either client to combine them.

Bonnabel, a 64-year-old grandfather from Raeford, is survived by his wife and three adult children.

"The family was just a wonderful, very close-knit, family, and so when I presented the argument to the jury I divided it among the heirs and said, here's what each heir is entitled to recover, and it seemed like a reasonable verdict to me," Byrd said.

Byrd said that the discovery phase of the litigation did not make clear why the driver failed to slow down or take any evasive action before the crash.

"It was pretty inexplicable. That's a quote from the safety director of the defendant company, actually. I asked him, how did this happen, and he said it's inexplicable," Byrd said. "What you have to assume is the guy just went to sleep."

The driver of the tractor-trailer died a few months after the crash. Byrd said that the cause of death was cirrhosis of the liver.

VERDICT REPORT AUTOMOBILE ACCIDENT

Amounts: $13 million

Injuries alleged: Death

Case name: Emily Bonnabel Windmiller, Administratrix of the Estate of John Van Bonnabel v. Harry B...