Green v. George's Farms, Inc.

Decision Date31 March 2011
Docket NumberNo. 10–26.,10–26.
Citation378 S.W.3d 715,2011 Ark. 70
PartiesMary E. GREEN and Michael B. Green, Individually and as Parents, Next Friends, and Natural Guardians of Michael (Blu) Green During His Minority; and Michael (Blu) Green, Individually, Appellants v. GEORGE'S FARMS, INC., George's Processing, Inc.; Peterson Farms, Inc.; Simmons Foods, Inc.; Simmons Poultry, Inc.; and Tyson Foods, Inc., Appellees.
CourtArkansas Supreme Court

OPINION TEXT STARTS HERE

Lundy, Lundy, Soileau & South, L.L.P., by: Heather W. Lundy, Fayetteville, and Keith Prudhomme, for appellants.

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., Little Rock, by: Sherry P. Bartley, and McDaniel, Longwell, Acord & Kroll, PLLC, by: A. Scott McDaniel and Nicole M. Longwell, for appellee Peterson Farms, Inc.

COURTNEY HUDSON HENRY, Justice.

Appellants Mary E. Green and Michael B. Green, individually and as parents, next friends, and natural guardians of Michael Green during his minority, and Michael Green appeal the judgment entered by the Washington County Circuit Court in favor of appellees George's Farms, Inc., and George's Processing, Inc. (collectively George); Peterson Farms, Inc. (Peterson); Simmons Foods, Inc., and Simmons Poultry Farms, Inc. (collectively Simmons); and Tyson Foods, Inc. (Tyson). For reversal, appellants raise four issues contesting evidentiary rulings made by the circuit court and one point arising out of closing argument. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1–2(a)(7) because this is a subsequent appeal following one that was previously decided by this court. See Green v. Alpharma, Inc., 373 Ark. 378, 284 S.W.3d 29 (2008) (Green I ). We find no merit in the arguments raised and affirm.

I. Factual Background

Appellees are engaged in the poultry-production business in northwest Arkansas, including areas in the vicinity of Prairie Grove. As poultry producers, they provide and maintain ownership of the broiler hatchlings that they deliver to their respective growers. Appellees also supply the growers with medicine, and each furnishes the growers with feed, which they formulate according to their own unique specifications. For decades, their feeds have included the additive 3–Nitro, an FDA-approved product that is used to promote growth and prevent disease. Roxarsone, an organic derivative of arsenic, comprises twenty percent of the ingredients contained in 3–Nitro. Arsenic is recognized as a class-one carcinogen and is considered both a cancer-causing agent and a promoter of cancer. The roxarsone that is fed to the chickens degrades into an inorganic form of arsenic that is excreted by the chickens. Growers typically remove the chicken litter from poultry houses once a year, and the litter is applied as fertilizer to the fields surrounding Prairie Grove, including areas near the school campuses. The chicken litter is spread primarily in the spring and fall, commonly at a ratio of two tons per acre.

Appellant Michael Green, known as “Blu,” was born and raised in Prairie Grove in a neighborhood near the schools. In the fall of 1999, he experienced unexplained bruising, and doctors at Arkansas Children's Hospital diagnosed him with a rare form of leukemia called chronic myelogenous leukemia (CML). In April 2000, Blu underwent a bone-marrow transplant in Seattle, Washington, where he remained in the hospital for two months. After receiving extensive and often debilitating treatment, he achieved remission in 2004. However, his long-term prognosis is considered guarded, and he suffers permanent complications from the treatment, including cataracts, problems with nail and hair growth, sterility, and an increased risk of skin cancers.

In December 2003, appellants filed a complaint against appellees and Alpharma, Inc., the manufacturer of 3–Nitro.1 Seeking injunctive relief and both compensatory and punitive damages, appellants presented causes of action for negligence, negligence per se, intentional failure to warn, and strict products liability. As the basis for their complaint, they alleged that the arsenic-laced litter produced by roxarsone-fed chickens polluted the air in Prairie Grove as a result of ventilating the chicken houses, and the dust clouds formed when the litter is spread. Further, appellants asserted that Blu's exposure to this inorganic arsenic caused his leukemia. In pretrial rulings, the circuit court granted summary judgment in favor of appellees on the issue of causation. Additionally, the court excluded all testimony pertaining to Table 9 of a report entitled “Exposures to Carcinogenic Arsenicals and Other Toxic Substances in Washington County, Arkansas,” prepared in 2005 by appellants' expert, Dr. Rod O'Connor. In ruling this evidence inadmissible, the circuit court found that the methodology used by Dr. O'Connor did not meet the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Farm Bureau Mutual Insurance Company v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000).2 The case proceeded to trial against Alpharma, Inc., and the jury returned a defense verdict.

Following the entry of judgment, appellants brought the first appeal of this matter, challenging the circuit court's decision granting summary judgment to appellees and its ruling to exclude any testimony based on Table 9 of Dr. O'Connor's report. In Green I, we overturned the circuit court's grant of summary judgment. Applying the test for establishing proximate causation in cases involving joint tortfeasors as enunciated in Chavers v. General Motors Corporation, 349 Ark. 550, 79 S.W.3d 361 (2002), we held that a question of fact remained on the issue of causation. Green I, 373 Ark. at 396, 284 S.W.3d at 42–43. However, we found no abuse of discretion in the circuit court's decision to exclude the testimony regarding Table 9. Id. at 408, 284 S.W.3d at 51.

On remand, the circuit court conducted a two-week jury trial that began on April 30, 2009. Following the presentation of appellants' case, the circuit court granted Peterson's motion for a directed verdict. The court also directed a verdict on the issue of punitive damages. After the remaining appellees mounted their defense, the jury found in favor of the appellees. Appellants now bring this second appeal, urging five points for reversal.

II. Reconsideration of Ruling Regarding Table 9

Prior to the instant trial, appellants filed a motion asking the circuit court to reconsider its previous decision, which denied the admission of testimony based on Table 9 of Dr. O'Connor's 2005 report. Noting that the lack of publication and peer review had influenced the circuit court's earlier decision, appellants asserted that Dr. O'Connor's work had since been peer reviewed and published in the July 2008 edition of the Journal of Residuals Science & Technology under the title “Estimation of Chronic and Acute Air Arsenic Levels from House Dust Composition in Poultry Waste Disposal Areas.” Appellees responded to the motion and filed a joint motion in limine to prohibit the testimony. They argued that the law-of-the-case doctrine precluded reconsideration of this issue. In this regard, appellees asserted that the material facts had not changed in that the 2008 paper used the same methodology that the circuit court previously found unreliable. Appellees also maintained that the formula underlying Dr. O'Connor's calculations in Table 9, the use of which had been criticized by the circuit court, had not actually been subjected to peer review in the 2008 paper. Appellees also pointed out that Dr. O'Connor had altered certain values in his calculations without explanation and that he continued to disregard dust samples that were below detectable limits. In reply, appellants did not address the specific criticisms offered by appellees. They maintained only that the paper had been subjected to peer review and that the review detected no flaws in Dr. O'Connor's methodology.

The circuit court issued a written order denying appellants' motion for reconsideration. The court also entered an order granting appellees' motion in limine to exclude testimony regarding the 2008 article. The court found that the 2008 article utilized the same unreliable methodology to estimate peak air exposure concentration that it had previously ruled inadmissible, noting that its decision had been affirmed by this court on appeal. The circuit court also stated that the calculations were based on unreasonable assumptions and scientifically unsound mathematical extrapolations from dust samples collected in the Prairie Grove area and that Dr. O'Connor continued to use a formula that the EPA had warned should only be used to determine air levels of lead. The court found that the theory advanced in Table 9 had never been tested and still had not been tested by any other scientist. At trial, when appellants proffered the 2008 paper, the circuit court commented further that publication of the paper did not removethe doubts it previously had expressed about the methodology used in Dr. O'Connor's calculations. The circuit court also stated that we had an agreement” that all reports and opinions of experts were to have been provided in 2006 so that the parties would have an opportunity to take depositions. The court said that, when the 2008 paper came to its attention, the defense did not have an opportunity to depose Dr. O'Connor.

As their first point on appeal, appellants argue that the circuit court erred by not allowing testimony concerning Table 9 to be introduced into evidence. They assert that the law-of-the-case doctrine does not bar admission of the table because the peer review and publication of the 2008 paper represents a significant change in circumstances. Appellants further contend that the relative strengths or weaknesses of Dr. O'Connor's methodology go to the weight and credibility of his opinions but not to their...

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