Judge rules to postpone next chicken-litter trial

BY TRISH HOLLENBECK Northwest Arkansas Times

Posted on Friday, December 29, 2006

Fourth Circuit Judge Kim Smith ruled Thursday in Washington County Circuit Court that the next chicken litter trial be continued until rulings in the first one are resolved by a higher court.

Trial for the Austin Johnson suit was set for April 23, but that is now continued, and Smith did not set a new date. He ruled for a continuance until the Arkansas Court of Appeals rules on issues brought up on appeal from the September Michael and Beth Green trial, the first in a multi-lawsuit case alleging chicken litter causes cancer.

The claim involving Johnson, who died of brain cancer, is one of several others in a lawsuit that names the Greens and their son, Blu, as lead plaintiffs. The Green plaintiff-led suit is one of eight lawsuits in the case alleging chicken litter has caused cancer and other ill health effects.

The Greens did not prevail in a three-week trial in September, when jurors took just 21 minutes on Sept. 28 to find in favor of defendants Alpharma Animal Health Co., makers of a feed additive, roxarsone, blamed by several plaintiffs for causing cancer after turning into a harmful form of arsenic in chicken litter.

The Greens and others in the Prairie Grove area claim the litter spread as fertilizer caused illnesses, including Blu Green’s leukemia when he was a teen-ager. He survived the cancer.

Roxarsone is a growth enhancer and used to prevent poultry diseases.

The Greens asked for about $ 900, 000 in compensatory damages, claiming product liability, failure to warn and negligence.

They are appealing and plaintiffs’ lawyers asked for a stay or continuance of other claims in the suit in which the Greens are lead plaintiffs, pending appeal to the higher court.

That was one of the issues Smith ruled on during a hearing Thursday.

He also ruled that plaintiffs in the Green-led suit be allowed to proceed with a Arkansas Rule of Civil Procedure certificate to allow all the Green suits’ plaintiff evidentiary issues to be decided on appeal.

In arguing for the delay of the Johnson trial, plaintiffs’ attorney Russell Winburn of Fayetteville said that it does not make any sense to try the remaining cases in the suit until issues are resolved on appeal.

Other issues on appeal include the exclusion of expert testimony dealing with dose calculation related to exposure of the plaintiffs and evidence regarding excess childhood cancers — not including leukemia.

Winburn did suggest to the judge that work on one of the other seven lawsuits begin while the Green issues are resolved on appeal, arguing that the Green suit rulings would not apply to the other suits, but only to the claims in the Green-led lawsuit.

Fayetteville attorney Tim Brooks, representing Alpharma, questioned the plaintiffs’ logic of wanting to continue the Johnson case but move forward on non-Green suit trials.

He said the logic seemed contradictory if the plaintiffs do not want to go to the expense of moving forward on other Green suit cases pending appeal.

“ It’s the same expense. In fact, it’s more expensive because these cases have not been worked up for trial, ” Brooks argued.

Arguing against a stay or continuance of proceedings, Brooks said there was not a likelihood that the plaintiffs would succeed on appeal, and a delay would cause extensive harm to Alpharma.

He also said not delaying the cases would be beneficial to the public, to determine if there is something to the chicken litter allegations.

One of the issues discussed Thursday was the removal of poultry companies from plaintiffs in the Green-led lawsuit. The companies were excluded from the case by Smith because Arkansas does not recognize market share liability, which allocates liability based on companies’ market shares. This means that the plaintiffs would have to prove a link between litter spread in the area and a specific company.

Plaintiffs plan to appeal Smith’s exclusion of the companies and Smith’s ruling Thursday will allow the court of appeals to rule on this and other issues pertaining to all of the separate plaintiffs in the case in which Greens were lead plaintiffs.

Poultry companies named in the suit were George’s Farms, George’s Processing, Peterson Farms, Simmons Foods, Simmons Poultry Farms and Tyson Foods.

Other issues on appeal include the exclusion of expert testimony dealing with dose calculation related to exposure of the plaintiffs and evidence regarding excess childhood cancers — not including leukemia.