Monday, November 30, 2020


              Murphy-Brown, LLC is a commercial hog producer, who contracted with Kinlaw Farms to operate an industrial hog feed facility. Joyce McKiver and others owned residential properties near Kinlaw Farms. They sued Kinlaw for nuisances associated with hog operations, claiming they could no longer enjoy their outdoor gardens, hold cookouts, or even keep their windows open.

             Kinlaw maintained 15,000 hogs at the farm. The hogs generated 153,000 pounds of feces and urine daily. Kinlaw housed the hogs in sheds that used vents and fans to move fumes to the outside of the building. By design, the hog waste in the sheds fell through slats in the floor. Then, the waste was stored in three open-air pits within view of McKiver’s home.

             The lagoons contained millions of gallons of hog waste.

             Kinlaw periodically drained waste from the pits and spread it as fertilizer across open fields on Kinlaw’s property. Approximately 8 million gallons of hog feces were sprayed in the air annually at Kinlaw Farms.

             Kinlaw was aware that residential housing was in close proximity to its farm and as a consequence, instructed its personnel to refrain from discharging the hog waste to spray fields if the neighbors planned to entertain guests for a wedding or cookout. Despite the policy, spraying of hog waste in summer months occurred at Kinlaw Farms three to five days each week, for an average of six hours each day.

             Additionally, trucks regularly delivered new hogs, removed live hogs, and retrieved dead hogs, at an all-day, all-night pace.

             Dead hogs were stored in “dead boxes,” which were dumpsters placed in open fields at Kinlaw Farms. Hog carcasses would pile up and rot in the dumpsters. The dead boxes attracted buzzards, gnat swarms, and flies that would also frequent neighboring properties.

             In 2013 McKiver and her neighbors had enough and asserted a lawsuit in State court, then removed it to federal court in 2014. The federal district court consolidated 26 related cases filed by neighbors.

             In Spring 2018 the jury returned a verdict awarding $75,000 in compensatory damages to each of 10 plaintiffs, and also awarding $5 million in punitive damages. The district court applied the State’s punitive damages cap, reducing the total punitive award to $2.5 million.

             Kinlaw appealed.

             Kinlaw claimed on appeal that McKiver and neighbors were not entitled to damages for loss of use and enjoyment of their property, as State laws including a “Right to Farm Act.” The federal Court of Appeals made short work of that argument, citing that “. . . it is beyond debate that North Carolina case law dating back over 100 years includes recognition of loss of use and enjoyment from annoyance and discomfort, as well as other forms of damages . . .”

             Next, Kinlaw pivoted to a challenge of McKiver’s experts. First up was Dr. Shane Rogers. Dr. Rogers had testified that DNA markers for hog feces could be found on the homes surrounding Kinlaw Farms. His specialty was described as “the fate and transport of fecal pathogens.”

             I won’t go into graphic detail regarding the feces collection, sampling, analysis, and labeling issues litigated by Kinlaw. Suffice it to say that the Court of Appeals determined that Dr. Rogers’ opinions were both reliable and relevant.

             Judgment for Joyce McKiver and her neighbors was mostly affirmed, in a decision that took 144 pages to explain. Of which the first 67 pages constitutes the formal opinion of the Court, while the remaining 77 pages consists of various concurring and dissenting criticisms. Some of the dissenting and concurring opinions offered suggestions regarding Chinese racial issues, xenophobic appeals, and olfactometer readings.

             See Joyce McKiver v. Murphy-Brown, LLC: Case No. 19-1019: US Court of Appeals; 4th Circuit; November 19, 2020:

           Lessons / Questions / Issues:

  1. Issue: So, no surprises here – the outcome is exactly as you expected, right? I look at this differently. What if the neighbors knew of the hog farm operations, nuisance, stink, and related health issues when they bought their properties, and then assumed the risk by moving in and occupying the properties as their residence. Should Kinlaw be liable in that situation? 
  1. Question: Does this case suggest that you can buy residential property near an airport or toxic dump site which is publicly disclosed or visibly apparent, move in, then later assert a valid claim?
  1. Statement: There is no question but that McKiver and her neighbors were and likely still are substantially damaged, for which money may not be compensatory if their health was adversely impacted. As one of the appellate judges stated, nobody wants another situation like Flint, Michigan. I hope this is not further appealed, that the money recovery is enough for them to move far away, and that science can provide a better answer for this issue that must be recurrent in every State.
          PS v1: One stinkin’ year; one stinkin’ post. 

          PS v2: Happy Holidays!

                                                                                     Stuart A. Lautin, Esq.*

* Board Certified, Commercial (1989) and Residential (1988) Real Estate Law, Texas Board of Legal Specialization

Licensed in the States of Texas and New York


Reprinted with the permission of North Texas Commercial Association of REALTORS®, Inc.


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