Judge rules in Okla. chicken litter case
Posted on Sunday, May 11, 2008
A federal judge on Monday accepted the testimony of two Oklahoma experts who spoke in favor of banning poultry litter in the Illinois River watershed.
Judge Greg Frizzell's decision struck a blow to the Arkansas poultry companies who'd asked the judge to exclude the testimony and research of Jody Harwood and Roger Olsen.
"I can understand the companies' desire to exclude the testimony from these two experts," Oklahoma Attorney General Drew Edmondson said in a statement. "The scientific data that Harwood and Olsen presented to the court is evidence that damage to the water is directly traceable to the defendant companies."
Attorneys for the companies said the work of Harwood and Olsen shouldn't be considered because it didn't pass the socalled "Daubert test," which calls for research used in court cases to be tested, reviewed and accepted by other scientists.
"The court concludes that in this case, the proffered testimony of experts Harwood and Olsen ought not be stricken and that defendants' arguments will be considered as to the weight, not the admissibility," Frizzell wrote in a two-page decision.
Frizzell hasn't ruled on whether to grant a preliminary injunction to ban poultry litter in the watershed after a nineday hearing in Tulsa that ended March 12.
Edmondson claims litter spread on farm fields threatens human health and that it's "solid waste "under the Resource Conservation and Recovery Act of 1976.
Frizzell's decision about an injunction is important to Arkansas poultry farmers because portions of Washington and Benton counties are in the watershed. Farmers rely on poultry litter as inexpensive fertilizer.
Russ Florence, a spokesman for the eight companies sued by Edmondson in 2005, said the companies expected Frizzell to allow Harwood and Olsen's testimony.
"Judge Frizzell asked the defense in court whether he is required to refuse to even listen to Harwood and Olsen, or whether he can listen to them and then decide whether he believes them or not," Florence wrote in an email. "Our side said it's the latter - you can listen to them, but then must decide what weight to give to their testimony."
At issue with Harwood's and Olsen's testimony was Daubert v. Merrell Dow Pharmaceuticals Inc., a 1993 U. S. Supreme Court decision. The high court advised federal judges to scrutinize scientific evidence of experts presented. The intent of the court's guidance was to ensure that juries see good scientific evidence.
The research of Harwood, a University of South Florida biology professor, and Olsen, an environmental consultant with Cambridge, Mass.-based Camp Dresser & McKee's Denver office, hasn't been published or peer reviewed.
Edmondson in previous interviews identified Harwood and Olsen as the keys to his injunction case.
Harwood testified that she used microbial source tracking to find a poultry biomarker in fecal bacteria of chickens and turkeys and followed it from farm fields into groundwater and streams.
Olsen tracked a chemical poultry signature, seeing 25 components unique to poultry and finding them in groundwater and streams.
Attorneys for the poultry companies argued that Harwood and Olsen hadn't done their research well. They said they failed to take into account all the other animals that could be affecting the watershed, including cows, horses, geese, ducks, pigs and wild animals.
They also argued that the microbial source tracking had never been successfully done with poultry waste.
Also Monday, Frizzell denied permission for 11 organizations to file so-called friend of the court briefs in the case.
Those entities, including the Arkansas Farm Bureau Federation and the National Cattlemen's Beef Association, side with the poultry companies in their bid to prevent Edmondson from obtaining a poultry litter ban.
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