Green v. George's Farms, Inc.
378 S.W.3d 715
Ark.2011Background
- Appellees are northwest Arkansas poultry producers owning chicks, feed, and medicines; roxarsone-fed litter contains 3-Nitro and arsenic; litter is spread on Prairie Grove fields near schools; Blu Green developed leukemia after exposure; prior trial granted summary judgment on causation and excluded Dr. O’Connor’s Table 9 testimony; Green I reversed summary judgment but affirmed exclusion of Table 9; remand trial resulted in verdict for appellees; appellants challenge evidentiary rulings and closing argument on appeal.
- Green and co-plaintiffs allege inhalation/air exposure to inorganic arsenic from poultry operations caused Blu’s leukemia and seek injunctive, compensatory, and punitive damages against Alpharma and several poultry companies.
- Trial decisions on admissibility of Dr. O’Connor’s Table 9, Cackle Corner dose calculations, exclusion of other cancers evidence, Pilkington email, and closing argument were reviewed on second appeal; law-of-the-case doctrine applied to several issues.
- Daubert v. Merrell Dow Pharmaceuticals, Inc. and Farm Bureau Mut. Ins. Co. v. Foote provided standards for expert-admissibility analysis; law-of-the-case limited reconsideration of issues decided on prior appeal.
- Appellants sought reconsideration of the Table 9 ruling; circuit court denied reconsideration and excluded Table 9 testimony; this court held the law-of-the-case doctrine barred reconsideration.
- The circuit court refused to allow O’Connor to use the Cackle Corner formula because it was not included in his report; this court found no basis to reconsider on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/reconsideration of Table 9 evidence | Green sought admissibility due to peer review/publication in 2008 | Law-of-the-case barred reconsideration; methodology unreliable | Law-of-the-case barred reconsideration; Table 9 testimony excluded |
| Use of Cackle Corner dosage formula | O’Connor should apply the formula to estimate airborne arsenic | Formula not disclosed in report; trial court proper | Testimony excluded for not disclosed in report; no error on appeal |
| Exclusion of evidence of other cancers | New study on arsenic and cancer changes relevance | Law-of-the-case controlling; not materially changed facts | No abuse of discretion; law-of-the-case applies |
| Admissibility of Pilkington email | Email shows Tyson knew of arsenic danger; supports negligence | Issue not raised in first appeal; law-of-the-case applies | Law-of-the-case barred consideration; email excluded |
| Closing argument challenge based on suggesting lack of ill individuals | Argument not addressed on appeal; issue deemed waived |
Key Cases Cited
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (U.S. Supreme Court 1993) (factors for admissibility of expert testimony; publication as a factor)
- Farm Bureau Mut. Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (Ark. 2000) (adopted Daubert framework in Arkansas)
- Chavers v. General Motors Corporation, 349 Ark. 550, 79 S.W.3d 361 (Ark. 2002) (joint tortfeasor proximate causation standard)
- Cadillac Cowboy, Inc. v. Jackson, 347 Ark. 963, 69 S.W.3d 383 (Ark. 2002) (law-of-the-case doctrine; efficiency/finality in remand)
- First Commercial Bank v. Walker, 333 Ark. 100, 969 S.W.2d 146 (Ark. 1998) (law-of-the-case doctrine governs issues not raised earlier)
- Weiss v. McFadden, 360 Ark. 76, 199 S.W.3d 649 (Ark. 2004) (material change required to overcome law-of-the-case)
- McDonald’s Corp. v. Hawkins, 319 Ark. 1, 888 S.W.2d 649 (Ark. 1994) (law-of-the-case applicability in successive appeals)
- Whiteside v. Russellville Newspapers, Inc., 2009 Ark. 135, 295 S.W.3d 798 (Ark. 2009) (new arguments raised for first time on appeal not considered)