Farm Progress

Something does not smell right about this case (pun intended).

Gary Baise 1, Environmental Lawyer/Blogger

December 20, 2016

3 Min Read
DarcyMaulsby/Thinkstock

Pork producers in the United States have won virtually every Concentrated Animal Feeding Operation CAFO case involving charges that odor was causing a nuisance to nearby neighbors. Now a big loss! Prestage Farms is an exception because it just lost an odor case in Iowa. On November 23, 2016, the Court of Appeals of Iowa awarded substantial damages to a plaintiff in her nuisance action based on odor from a CAFO. Prestage Farms of Iowa, L.L.C. lost at the trial court level as well.

The plaintiff was awarded $100,000 for past loss of use and enjoyment of her property and $300,000 for future loss of use and enjoyment of the property. Prestage argued that the trial verdict was excessive and raised a presumption that the verdict was “…the product of passion or prejudice.”

The Iowa Appeals Court demolished Prestage’s arguments, saying “We have already determined the award of damages for past and future use and enjoyment was supported by sufficient evidence.” The Court further asserted “The damages [in this case] represent personal inconvenience, annoyance, discomfort, and loss of full enjoyment of the property caused by the offensive odor.”

Amazingly without expert testimony and apparently without any facts, plaintiff McIlrath “…testified to what she believed was the value of her property without the odor from the hog confinement facility, and what she believed it was worth with the odor.” The Appeals Court believed the damages were reasonable and there was a reasonable basis in the record supporting damages in the above amounts. Prestage Farms argued in the appeal that it was entitled to a new trial because the jury’s verdict was not supported by sufficient evidence. This argument was not accepted by the Court. Prestage Farms attempted to keep the plaintiff’s expert from testifying about alternative odor control technology. The Court swatted this claim away by saying that Prestage was not prejudiced by this evidence.

Requesting damages

The plaintiff and her husband purchased their property in 1971. Prestage Farms constructed its CAFO in 2012 for 2,496 hogs approximately ½ mile away from the home. On July 1, 2013, the plaintiff filed a court action alleging odor from the Prestage CAFO created a nuisance and requested damages. Several motions were filed by both plaintiff and defendant regarding whether a statute in Iowa was constitutional. Prestage lost that legal battle.

The Court discusses the facts and must have left out many specifics because the Court’s description seems to be lacking. For example, the Court claims the plaintiff testified that an oppressive odor came from the CAFO when the wind was in the southwest. “She described the smell as ‘putrid’ and stated there would be an intense odor on thirty to fifty percent of the days.” (I find this assertion absolutely contrary to any of the testimony in any of the numerous cases I have won on this point.) This is a very easy point to prove, and the Court does not indicate any evidence was entered on this point which again I find hard to believe.

Plaintiff also had neighbors testify about the odor allegedly created from the Prestage CAFO. The Court writes that testimony about odor came from another neighbor who said “…he never found the odor from the hog confinement facility to be unreasonable or offensive. “ Prestage also presented two experts’ testimony, both agricultural engineers, who claimed very little gas would be emitted from a CAFO such as this and “…therefore there would be very little odor.” Something does not smell right about this case (pun intended).

Needless to say this decision will encourage more lawsuits to be filed against CAFO operators. It appears this Court decision is based on weak facts. It does appear Prestage may be correct that the jury verdict was based on passion and prejudice. This is clearly a lump of coal delivered before Christmas to pork producers.

About the Author(s)

Gary Baise 1

Environmental Lawyer/Blogger

Gary H. Baise is an Illinois farmer and trial attorney at the law firm Olsson Frank Weeda Terman Matz PC specializing in agricultural and environmental trial issues in state and federal courts. He also serves as outside General Counsel for the U.S. Grains Council, Agricultural Retailers Association, National Sorghum Producers and counsel to the American Soybean Association.

 

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