Judge bars testimony of plaintiffs’ expert witness in chicken litter lawsuit
Posted on Tuesday, April 4, 2006
Washington County Circuit Judge Kim Smith Monday granted a motion from defendants to prohibit the testimony of an expert in a case alleging chicken litter spread as fertilizer in the Prairie Grove area has caused adverse health effects, including cancer.
Smith stated that the expert, Arthur Fisk, who has a Ph. D. in experimental psychology and is an expert on human factors, is not qualified to testify on warnings about or alternatives to Roxarsone - a substance at the center of the case.
As an expert on human factors, Fisk focuses on the study of how people interact with products, tools, procedures and any processes likely to be encountered in the modern world.
Roxarsone is a substance used to enhance chicken growth. Lawsuits against six companies claim Roxarsone, 3-nitro-4-hydroxypher ylarsonic acid, breaks down into arsenic in litter. Poultry industry representatives say there is no link between chicken litter and the health problems cited.
Defendants Alpharma, Alpharma Animal Health and Tyson Foods, filed motions to exclude Fisk's testimony in the scheduled Sept. 5 trial involving Michael and Mary Green and their son, Michael B., or Blu, Green, who suffered from leukemia as a child. The Greens are lead plaintiffs in one of several suits and theirs will be the first trial in the case.
According to a support document to the motion argued Monday, defendants asked the court to bar Fisk's testimony about the allegedly "unreasonably dangerous"nature of Roxarsone; the availability of alternative designs for chicken feed (thereby "designing out"the hazard); and "warning systems"that could or should have been placed on Roxarsone.
Rob Adams, an attorney for Alpharma, noted that Fisk received all of his information about the case from the plaintiffs' attorneys and archival research - reading materials. Adams said that anyone, such as a juror, could read the same information and come to the same conclusions.
Adams also said Fisk admitted when deposed that he did not have any expertise on Roxarsone, arsenic or chicken litter.
The defendants' motions argued Monday are termed "Daubert"motions. The Daubert Standard is a legal precedent set in 1993 by the U.S. Supreme Court about admissibility of expert witnesses' testimony. The idea behind Daubert is that trial judges evaluate expert witnesses to determine whether their testimony is relevant and reliable. As Smith noted, judges are to be "gatekeepers"of scientific evidence.
Clayton Davis, arguing for the plaintiffs, said Fisk's expertise involves talking about the decision-making process people undergo and the underlying principle to design a hazard out of a product. "The jury needs to understand that this man brings to the table that expertise and he can talk about it and explain it,"Davis said.
He also said Fisk can talk about the alternative if a hazard cannot be designed out - which is to provide warnings - and about how people moderate behavior based on warnings.
Adams, however, said Fisk admitted in his deposition that he had never designed a warning for a consumer product. Still, Davis said, one does not need to have designed a warning to testify about it.
In his ruling, Smith said Fisk does not have the scientific knowledge to say whether Roxarsone is a dangerous product or not, and his testimony about warnings for dangerous products would be a matter of common sense. "We don't need an expert to tell us that,"he said.
Attorneys are expected to argue a motion today to exclude testimony of another expert for the plaintiffs, Rod O'Connor, Ph. D.
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