Personal Injury Law

From the Byron White Courthouse In Denver---Oklahoma Seeks Injunction Against Poultry Industry

 
The words above historic courtroom III in 10th Circuit Court of Appeals in Denver say 'Reason is the soul of all law.'

Below, three very experienced jurists –two wearing bow ties—this morning tried to make sense out of pollution by poultry litter on Oklahoma's Illinois River.

At issue was Oklahoma's appeal of Judge Gregory Frizzell's denial of a motion for preliminary injunction to prevent the further land application of poultry litter while Oklahoma's federal case winds its way toward a fall 2009 trial date.

The State was seeking to halt land application of litter in the Illinois River Watershed (IRW) due to the "substantial and imminent" danger caused by bacteria originating from the chicken litter.

Led by Tyson, the poultry industry defended its practices on the grounds that Oklahoma could not scientifically identify poultry waste as a leading or primary cause of the high bacteria levels in the IRW, as other non-poultry areas of Oklahoma, which  also have high bacteria levels, and the State's expert witnesses asserting a DNA link between the bacteria and poultry was not sufficiently reliable to be considered.

Thus, the issues for the appeals court to decide is whether Judge Frizzell, the trial judge, applied the correct legal standard - "substantial and imminent danger," whether the State met its burden of proof in meeting that standard, and whether the State's microbiological experts scientific method and study meets the evidentiary standard announced in Daubert v. Merrel Dow Pharmaceuticals, Inc., which grants to the court the "gate-keeping" function of what scientific evidence will be admitted before a jury or other trier of fact.

Today's hearing was held before a panel of experienced appellate jurists - Judge Kelly, Judge Ebel, and Judge Murphy.   Their decision is expected later this spring.

Judge Ebel was critical of the lack of detail in Judge Frizzell's order. Judge Ebell referred to the lower court opinion as "inadequate," a rather "terse opinion," and that it left "nothing for the appellate court to go on."

Oklahoma was represented by Frederick Baker, a lawyer with the Motley Rice law firm of South Carolina. Attorney General Drew Edmondson was at counsel table. Edmondson told us after the proceedings that Motley Rice has invested $24 million in the poultry litter pollution case in support of the State of Oklahoma's position to date.

Tyson and the other chicken players were represented by Jay Jorgenson, a lawyer with the Washington, D.C. firm of Sidley & Austin. (At one point, Justice Murphy asked Mr. Jorgenson if the water he was drinking was from the Illinois River.)

Mr. Baker, for the State of Oklahoma, explained to the Court that there was much more evidence in the record concerning the proliferation of poultry waste bacteria in the Illinois River than just the two expert witnesses testimony at issue under Daubert.

Mr. Baker went on to explain that the federal RCRA statute governing hazardous and solid waste disposal does not require proof of a "sole source" of contamination to prove that improper disposal "may present a substantial and imminent danger."

The judges asked about the correct standard to be applied in a preliminary injunction case and whether issues concerning "balancing of the equities" - whether the alleged harm to the public must be weighed against the harm to the poultry growers and users of the chicken litter as fertilizer -- an issue not addressed in Judge Frizzell's ruling.

At this point, it was suggested by the Court that the failure by the State to obtain a preliminary injunction at this time did not necessarily mean that it would not succeed upon the full trial of the case. This was a very important point that many in the media are missing. The further point is that the other part of the case surrounds the issue of nutrient overload caused by chicken waste that was not a part of the preliminary injunction at all.

The chicken industry insisted there was a the lack of causation - the failure to absolutely link the bacteria in the IRW to poultry with appropriate scientific evidence and through a "fate and transport" study. This was an issue that caught Judge Kelly's attention. He wanted to know how the State could identify bacteria as belonging not just to chickens, but to the chickens raised by these Defendants. On rebuttal, it was pointed out that all of the chicken producers in the IRW are defendants, not just Tyson's, but this is still appears to be an issue of concern for Judge Kelly.

As to the admissibility of the scientific studies of Dr. Harwood (identifying a poultry source of bacteria through DNA testing) and Dr. Olson (identifying a poultry source of bacteria through chemical changes in water), Judge Murphy raised the issue that no single Daubert factor is decisive, and that a new application of a standard methodology or scientific principle should not be disallowed on that basis alone or because it has not yet been published or subjected to peer review. (In asking the question, he was stating the State's argument for allowing this new scientific approach into evidence.

Mr. Jorgenson, on behalf of Tysons, raised the specter of Dr. Harwood's paper being rejected for publication by a scientific journal to the Court. 

There was some confusion about whether the State of Oklahoma actually issues permits for land application of chicken litter through the Dept of Agriculture or simply licenses chicken litter applicators and approves best management plans submitted by the growers.  Observers said,  this is a cause of concern because the appeals court is not seeing all of the issues in context.

Full post as published by Campylobacter Blog on March 11, 2009 (boomark / email).