Expert testimony from a vitally important witness is missing from the nuisance trial in Raleigh underway against a Duplin County hog farm.
The witness’ name is Dr. Pamela Dalton.
Dr. Dalton is an expert on odor.
Actually, not just any expert.
Dr. Dalton is a world-renowned expert on odor. Her research has been funded previously by the National Institutes of Health, the Department of Defense and NASA. Her research is cited and quoted extensively.
But Dr. Dalton has been repeatedly prohibited by the judge from offering any of her expert testimony about odor to the jury.
You see, the judge has ruled that North Carolina doesn’t have a bright-line standard for what could be considered “objectionable” odor.
But that’s not entirely the case. As court filings and arguments have made clear, North Carolina does have one – and it’s in place for determining whether, of all things, a new hog farm could be built. Indeed, in North Carolina, a new swine farm has to demonstrate that odor doesn’t leave the property in an objectionable way.
It turns out, there are machines and science that can determine this.
And this is precisely the standard and methods that Dr. Dalton used her expertise on to conduct a series of studies around North Carolina hog farms as part of the ongoing lawsuits.
In the courtroom, there have been repeated attempts by the defense to ensure Dr. Dalton can testify, and repeated attempts to block it by the Texas lawyer on the other side.
If nothing else is clear about the nuisance trial, it is this: The Texas lawyer does not want the jury to hear what Dr. Dalton’s expert opinion is about odor on the Joey Carter farm.
And, as with a number of other rulings, the judge has agreed, preventing her expert testimony. He has only allowed her to speak about her own personal experience there, which reduces her testimony to that of a visitor to the farm, not a scientist there to study the odor.
But the question remains – what did Dr. Dalton find?
Well, if she had been allowed to testify as an expert, the court papers and arguments suggest Dr. Dalton would clearly tell the jury that:
- She conducted studies at the Joey Carter hog farm according to accepted science.
- There is no objectionable odor from the Carter farm at the property of the husband and wife bringing the lawsuit.
- The farm does not produce odors at a nuisance level that travel off the farm.
- Her scientific odor studies at the farm are in direct contrast to what the plaintiffs say about the odor from the farm.
Again, it is worth repeating, the jury won’t hear that.
There are no words to fully describe how impactful it must be for the jury to sit for weeks in a case that is all about odor – and not hear from an expert for the defense who has opinions based on science.
This is especially outrageous – yes, a strong word and, yes, a necessary one – because it is in stark contrast to what the Texas lawyer has been allowed to present to the jury.
You see, Michael Kaeske, the lawyer taking aim at the Joey Carter farm and Smithfield Foods, was allowed to bring in an “air quality expert” for his side of the case to testify as an expert about… drum roll, please… odor.
His name: Shane Rogers, an associate professor at Clarkson University in northern New York.
When Rogers is not busy investigating ghost sightings, he looks into air and water quality matters.
Rogers was in court to support Kaeske’s theory that offensive odors do leave the Joey Carter farm and are so unbearable that they significantly disrupt the couple who lives more than a quarter-mile, as the crow flies, from the closest hog house.
As part of the plaintiffs’ legal team, Rogers was allowed to spend a day on the Carter farm conducting tests and collecting samples that would support those contentions.
But a funny thing happened when Rogers was on the farm.
Or didn’t happen.
He brought to the farm a device called a dust tracker. It measures volatile organic compounds, which Rogers identified as one of the main causes of odor on hog farms.
But Rogers didn’t use it to collect any samples on the Carter farm. Not a single one.
Rogers also brought a real-time ammonia monitor to the farm. The monitor can provide accurate readings of ammonia levels, another leading cause of odor on hog farms, according to Rogers.
He didn’t use that tool either. He didn’t take any ammonia measurements with the real-time monitor – not in the barns, near the lagoons, or on the edge of the property.
So you have an “air quality expert” who came to the farm will all the tools and equipment necessary to conduct tests that would accurately measure the odor. And he chose not to.
In fact, he didn’t personally take a single air quality sample during the many hours he was on the Carter farm.
Instead, this expert focused on something called Pig2Bac – a type of bacteria that Rogers says can serve as a substitute for measuring odor. But the testimony made clear that he is the only person in the world who has ever claimed that measurements of this specific bacteria can prove odor from hog farms.
No other scientist – none – has ever made a similar claim. And Rogers has never published any research about this notion of using bacteria to prove odor.
The question remains: Why didn’t Rogers use accepted scientific practices to measure odor? He had the equipment with him, and he apparently has the expertise to use these tools.
Surely, it must be clear by now why he wouldn’t want to take those measurements.
To the jury, it all probably seems like a mystery.
But it’s a mystery that Dr. Pamela Dalton would have cleared up with an expert opinion that can be distilled into seven words:
The Joey Carter farm isn’t a nuisance.
– Andy Curliss, CEO