Supreme Court Rejects Prairie Grove Cancer Appeal

— The Arkansas Supreme Court on Thursday said a local judge was right to exclude certain evidence in a lawsuit alleging arsenic in chicken litter caused a Prairie Grove resident to develop a rare form of leukemia.

Michael “Blu” Green and his parents in December 2003 sued Northwest Arkansas poultry companies claiming exposure to arsenic in the 1990s caused him to develop leukemia. Their lawsuit alleged it came from the arsenic-based feed additive Roxarsone, which is used in broiler feed to control parasites.

The theory was Roxarsone passes through the birds and then degrades into a harmful form of arsenic in the litter, which is spread on farm fields as fertilizer. Wind then carried the dust into homes and schools in the community.

At A Glance

What is Roxarsone?

Roxarsone, or 3-Nitro, is one of the most widely used growth-promoting and disease-controlling feed additives in the U.S. Most broiler chickens are fed Roxarsone to promote weight gain and control parasites.

Source: Staff Report

A Washington County Circuit Court jury in May 2009 took about an hour to reject the Greens’ argument and find for George’s Farms, Peterson Farms, Simmons Foods and Tyson Foods.

On appeal, the Greens argued Circuit Judge Kim Smith abused his discretion by limiting the testimony of Rod O’Connor and excluding tables O’Connor constructed for his report on human exposure to arsenic in Prairie Grove.

Smith ruled prior to trial O’Connor’s scientific methodology, including the formulas O’Connor used to arrive at his opinions about arsenic exposure in Prairie Grove, were not scientifically valid.

O’Connor used a formula designed for determining the amount of lead exposure in air from dust samples and applied it to arsenic.

Smith rejected the formula, saying it should not have been used to determine arsenic levels because other scientists had never used the formula, it had not been tested or peer-reviewed, it was not generally accepted by the scientific community and there was no supporting literature. Smith also said O’Connor discarded some variables that didn’t support his conclusions rather than using them to reach an average.

O’Connor admitted he didn’t use dust samples taken from the Prairie Grove schools to calculate exposure. He used samples taken from area homes to make his calculations for the schools. O’Connor claimed the schools were cleaned before his crews arrived to take dust samples.

Thursday’s opinion said Smith was prohibited from reconsidering the issue at the second trial because it had already been decided in an earlier appeal.

The high court said Smith was also correct to exclude testimony about potential arsenic concentrations because the calculations used were not disclosed prior to trial.

Smith also did not abuse his discretion in excluding evidence of other types of cancer in Prairie Grove, the court opined.

At trial, the poultry companies argued there’s no environmental link to chronic myelogenous leukemia, the type leukemia Green suffered. They also contended there’s no link between that type of leukemia and arsenic. And, there was never enough arsenic in the litter, less than an ounce per acre under normal spreading conditions, to be harmful, according to the poultry companies.

The 2009 trial was the second for the case. After a three-week trial in September 2006, a jury took 21 minutes to find for Alpharma, the maker of Roxarsone, and against the Greens.

The poultry companies were dismissed before that trial but the Arkansas Supreme Court sent the case back for another trial involving only the poultry companies.

The Green case was one of many similar cases pending. Members of about 50 other families in the Prairie Grove area say they’re convinced health problems in the community are linked to substances found in chicken litter, particularly Roxarsone. The lawsuits include about 100 plaintiffs.

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