High court rules poultry producers can be defendants
Posted on Friday, May 9, 2008
An Arkansas Supreme Court decision handed down Thursday means poultry producers can go to trial in a suit brought by Prairie Grove area residents who claim chicken litter has caused cancer.
The higher court reversed 4 th Circuit Judge Kim Smith's granting of a pretrial motion that eliminated poultry producers as defendants before a September 2006 trial in which feed-additive maker Alpharma prevailed.
"We're certainly disappointed by the ruling but will comply with it and are confident we'll be successful in a trial on this matter," said Gary Mickelson, spokesman for Tyson Foods Inc., one of the producers named as defendants.
"In fact, in 2006 a Washington County jury found in favor of the defendants in a similar case involving the same plaintiffs from Prairie Grove," Mickelson said. "The jury took only 21 minutes to reach its verdict in favor of Alpharma and Alpharma Animal Health."
Plaintiffs in the trial were Michael and Mary Beth Green and their son Blu, who suffered from leukemia as a youth. He has since recovered but has side effects, according to the Greens'suit.
The Greens' trial was the first in the multi-lawsuit case in which plaintiffs claim the chicken feed additive ingredient roxarsone, containing arsenic, polluted the air surrounding Prairie Grove via its presence in litter spread as fertilizer in surrounding fields. The plaintiffs claim it infiltrated their homes, schools and places of business, causing Green's leukemia and other injuries.
The Greens asked for about $ 900, 000 in compensatory damages, claiming product liability, failure to warn and negligence.
Following the 2006 verdict, the Greens appealed their case. They cited, among other things, Smith's granting of motions of summary judgment that eliminated from trial the poultry companies George's Farms, George's Processing, Peterson Farms, Simmons Foods, Simmons Poultry Farms and Tyson Foods.
While the Arkansas Supreme Court is reversing this ruling, it is upholding Smith's pretrial rulings excluding plaintiffs' expert testimony from the Alpharma trial.
The higher court decision came just six days after both sides gave oral arguments in Little Rock.
The Greens could not be reached for comment Thursday afternoon.
When called about the ruling, Jason Hatfield, Fayetteville lawyer for the plaintiffs, said he was prohibited by a circuit court order from commenting, but he did discuss a Feb. 7 article in the Pittsburgh Post-Gazette about a recent study on chicken litter and cancer. The study's lead author was researcher Partha Basu, associate professor in the Department of Chemistry and Biochemistry at Duquesne University.
"Although the effect of roxarsone on those who eat chicken is still undetermined, Dr. Basu said, chicken-farm workers are likely at risk because they could inhale dust containing arsenic from feed and waste," the article states. "In addition, those who work with or use commercial fertilizers containing waste from chickens that were fed the arsenic additive could also be expressed by breathing the dust."
The study's results have been published in Environmental Health Perspectives, an online journal of the National Institute of Environmental Health Sciences, which supported the study, according to the Post-Gazette article. Summary judgment issue Prior to the 2006 trial, poultry producers filed motions for summary judgment, arguing there was no real issue of material fact as to the cause requirement or liability. Tyson claimed that the plaintiffs' exposure to the trace amounts of arsenic could not have proximately caused the plaintiffs' injuries.
Peterson Farms attorneys argued that the plaintiffs failed to prove their injuries were caused by the poultrylitter substances - and that the plaintiffs admitted their inability to produce evidence that Peterson Farms'acts were the specific cause of injuries occurring before the company's first poultry contract in Washington County in 2002.
The Greens and the other plaintiffs responded that there were remaining facts relevant to Alpharma and the poultry producers' liability. They offered 61 exhibits consisting of deposition testimony mainly from area growers and litter spreaders.
Smith still granted summary judgment in favor of the poultry producers but denied a motion for summary judgment filed by Alpharma. The court ruled that the burden is on the plaintiff to prove that the plaintiffs'exposure to the product applied was "a substantial factor applied by a specific defendant...."
The circuit court also ruled that," unfortunately for the plaintiffs in this case, Arkansas has not adopted the market share theory of liability, but has retained the traditional requirement of proximate cause to each defendant. I understand that's a difficult proposition sometimes, but that still doesn't mean that's not what the law requires. As I read the law the best I can, each plaintiff must prove that each defendant's product was a substantial factor in causing their particular disease."
Citing the 2002 Arkansas case Chavers v. General Motors Corp., the Greens, in arguing on appeal, asserted that they produced ample evidence to show exposure to chicken litter.
They argued that "Blu Green met the burden of showing that each poultry defendant's conduct constituted a substantial factor in causing his injuries by showing the frequency, regularity and proximity of and to the exposure," according to the appeal.
In response, the poultry producers contended that the circuit court's ruling should be affirmed based on the Greens'failure to demonstrate a question of material fact on the issue of proximate causation - that the constitution of the chicken litter was the proximate cause of Green's injuries.
In reversing Smith's ruling, the Arkansas Supreme Court states that while the circuit court "correctly announced the factors of the Chavers test," it failed to apply that test to the case.
"In our review of the circuit court's grant of summary judgment, we note that summary judgment is not designed for assessing the probative strength of conflicting proof or expert opinions," the opinion states. "Rather, the process is correctly done by the trier of fact after a trial on the merits.
"In applying the Chavers test, we hold that the Greens have demonstrated that there is a genuine issue of material fact on the issue of causation."
Commenting on the higher court ruling, John Elrod, a lawyer for Simmons Foods, said," We will file a motion for rehearing based on the fact that the court did not address the issue of market share liability."
Market share liability is a legal doctrine applied to products that harm consumers but cannot be traced to a single manufacturer. It imposes liability on all manufacturers of the product in proportion to their shares of the market for the product.
Arkansas case law requires the defendants to show harm caused by each defendant, Elrod said.
The basis of Smith's dismissal of the poultry companies from the lawsuit is that the plaintiffs allege multiple defendants caused harm but admit they have no way to show which defendant is at fault, Elrod explained.
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