LITTLE ROCK (AP) Arkansas poultry producers dismissed two years ago from a lawsuit that seeks to hold them responsible for a man's leukemia are targets again of the legal action.
The Arkansas Supreme Court on Thursday overturned a lower-court judge and found that Michael Green and his parents had presented sufficient evidence to pursue their case against Tyson Foods Inc., George's Farms Inc., Peterson Farms Inc., and Simmons Foods Inc.
The high court said the evidence was enough to show "the poultry-producers' chicken litter probably caused Green's injury."
But while the high court said Washington County Circuit Judge Kim Smith should not have granted summary judgment to the companies Aug. 2, 2006, the court also said the judge correctly excluded testimony from an expert witness when the case went to trial against the remaining defendants.
In the 2006 trial, the jury ruled against the Greens and in favor of Alpharma and Alpharma Animal Health, makers of the arsenic-based feed additive Roxarsone, which is used by contract growers for the poultry companies.
"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," Tyson spokesman Gary Mickelson said in a statement.
"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. The jury took only 21 minutes to reach its verdict in favor of Alpharma and Alpharma Animal Health."
A lawyer for the Greens, Jason Hatfield of Fayetteville, said Thursday a circuit court order in the case prohibits the parties from commenting on it. Kimmie Provost, a spokeswoman for Simmons, said the company had no comment.
Green and his parents, Michael Green Sr. and Mary Green, filed suit in 2003 along with other Prairie Grove residents, citing the presence of "cancer clusters" in the northwest Arkansas community. The court decided in 2006 to hear the claims separately, and the other cases remain pending.
The Greens claimed the younger Green was exposed to the toxin when the feed passed through the chickens, degraded into a harmful form of arsenic in poultry litter, and farmers spread the litter on fields as fertilizer. Wind then carried the dust into homes and schools, they said.
The younger Green was diagnosed with a rare form of leukemia when he was a boy, while attending Prairie Grove schools about a block from his home. The disease has since gone into remission but he suffered permanent side effects, including cataracts, sterility, and an increased risk of skin cancers, according to the court opinion.
In its ruling, the high court said the Greens had presented ample evidence toward making a case that the younger Green was exposed to a toxin and that the exposure was frequent and in close proximity during the 12 years he lived near the school and attended classes there.
The court said the Greens submitted to the circuit court 61 exhibits, including affidavits from scientists.
"The Greens submitted numerous affidavits and deposition testimony of (litter) spreaders, property owners, teachers, and medical personnel that support these experts' contentions that Green was exposed to the poultry producers' chicken litter," Associate Justice Jim Gunter said in the opinion.
In affirming the circuit court's decision to exclude certain testimony, the Supreme Court agreed that expert Rod O'Connor had used a method that was not generally accepted by the scientific community to test for arsenic dust in homes in Prairie Grove.
"The circuit court found that Dr. O'Connor was well-credentialed and qualified," Gunter noted. But "the circuit court ruled that he was only prohibited from testifying about Table 9 and from testifying that the dust he found in homes was dust found in Prairie Grove schools."
