Study rejected in suit to run in peer-reviewed journal

— Research that was rejected in 2009 as evidence in Oklahoma’s lawsuit against Arkansas poultry companies will be published in a peer-reviewed journal.

The work of Valerie “Jody” Harwood will appear next month in Applied and Environmental Microbiology, a publication of the American Society for Microbiology. The Journal of Applied Microbiology published similar work by the University of South Florida biologist last year.

Harwood’s research centered on a “biomarker” that she said allows her to detect bacterial contaminants from poultry manure in farm-field runoff, surface water and groundwater.

Oklahoma officials hired Harwood as an expert witness in its legal battle against Springdale-based Tyson Foods Inc. and five other poultrycompanies. The lawsuit claims that the practice of spreading bird manure on fields as fertilizer within the Illinois River watershed in both Oklahoma and Arkansas caused unhealthy amounts of phosphorus in the river.

Tyson Foods spokesman Gary Mickelson said the publication of Harwood’s work has no impact on the lawsuit. Her biomarker is unable to differentiate between the manure of chickens, ducks, geese andhumans, he said.

“Simply put, her work is unreliable and her biomarker is useless,” Mickelson said by e-mail.

U.S. District Judge Greg Frizzell of Tulsa has not ruled in the case, although closing arguments were presented a year ago.

Harwood testified in February 2008 during Oklahoma’s unsuccessful bid for an injunction to stop poultry farmers from spreading manure onfields in the Illinois River watershed.

During the nine-day hearing, a Tyson Foods attorney described Harwood’s work as “novel,” “cutting edge” and “revolutionary” - but it had no place in court because it hadn’t been scrutinized by peers.

Attorneys for the poultry firms also said Harwood’s work failed to pass the so-called “Daubert test.” In the 1993 Supreme Court case Daubert v. Merrell Dow PharmaceuticalsInc., justices suggested that lower courts carefully evaluate scientific evidence of expert witnesses. The court encouraged judges to consider whether experts’ work had been published in peer-reviewed, scientific journals.

Testimony at trial revealed that an editor with Applied and Environmental Microbiology in January 2009 declined to publish information about Harwood’s biomarker research,telling her by e-mail that “two of the reviewers expressed serious concerns regarding your manuscript.”

In July 2009, Frizzell forbade evidence derived from Harwood’s microbial sourcetracking method during a 50-day trial that started Sept. 24 that year. The judge said Harwood’s work was “not sufficiently reliable.”

On appeal to the 10th U.S. Circuit Court of Appeals in Denver, Frizzell’s decision was upheld. Appellate Judge PaulKelly said Frizzell was right to give Harwood’s work “scant weight.”

Harwood said publication of her work “doesn’t vindicate me.”

“I knew itwould get published, but I get happiness that it’s now out there in the world,” she said.

“I had sympathy from scientists for the beating I took. I’m an experienced scientist, and I knew it was good work.”

Three members of the Applied and Environmental Microbiology editorial board reviewed Harwood’s manuscript, said Jim Sliwa, a spokesman for the American Society of Microbiology. He declined to identify them.

“They are microbiologists who are experts in the field they reviewed,” he said. “Once it’s published, it’s not considered to be absolute canon, but it shows it’s got merit.”

Harwood said her research might be used as evidence if other lawsuits about poultry manure are filed in Arkansas, Oklahoma or other states.

“It has long-term implications and shows how we may be able to use microbial sourcetracking in other places,” she said.

Harwood said she didn’t anticipate her work would face such tough scrutiny in federal court, and she now wonders whether Oklahoma should have slowed its push to get to trial. A delay would have allowed her work to be published and, in turn, it might have been allowed in as evidence, she said.

“I’ve thought a couple of times that maybe we should have waited to get this sucker published,” Harwood said. “But there are reasons to go forward. If you are stopping pollution, you want to stop it fast. Maybe we were too fast.”

Northwest Arkansas, Pages 17 on 02/20/2011

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