LITTLE ROCK Setbacks for Oklahoma Attorney General Drew Edmondson in his federal lawsuit against poultry companies operating in Arkansas have done nothing to restart long-stalled settlement negotiations.
The attorney general would "rather settle out of court than go to trial," but he has taken no recent steps in that direction, Edmondson spokesman Charlie Price said Tuesday.
Gary Mickelson, a spokesman for Springdalebased Tyson Foods Inc., one of the defendants, said the companies remain open to settlement, but their focus is on preparing for the trial that's scheduled to start Sept. 21.
"We'd rather not speculate about how such talks could be initiated or what they might entail," Mickelson said.
The poultry companies and Edmondson haven't discussed a settlement since last summer.
The past two weeks have been difficult for the attorney general, who sued eight poultry companies in 2005, accusing them of polluting the Illinois River watershed with bird manure that's spread on farm fields as fertilizer. From those fields, the manure leaches into streams and degrades water quality, Edmondson claims.
District Judge Greg Frizzell has made several key rulings in favor of the poultry companies regarding money, expert witnesses and water-sampling practices, but the decisions haven't discouraged Edmondson, Price said.
"The court has not ruled our way on a few things, but our case remains intact," Price said. "We've not lost anything we need to prove our case."
The most recent setback came last week, when Frizzell ruled that major portions of research by expert witnesses Jody Harwood and Roger Olsen are inadmissible in court.
Those witnesses' work was tossed because it failed to pass the "Daubert test," a standard established by a 1993 Supreme Court decision. In Daubert v. Merrell Dow Pharmaceuticals Inc., justices suggested that lower courts scrutinize scientific evidence of expert witnesses. The high court encouraged judges to consider whether the work of experts had been published in peer-reviewed scientific journals.
Olsen, a geochemist with Cambridge, Mass.-based Camp Dresser & McKee, claimed he tracked the chemical aspects of bird manure from chicken houses to farm fields to rivers.
Harwood, a University of South Florida biologist, claimed she tracked a poultry manure signature through the environment.
Frizzell also eliminated 72 percent of the hundreds of water samples collected and tested by watershed researchers specifically for the lawsuit. The district judge accepted the poultry companies' claims that the sampling failed to comply with federal EnvironmentalProtection Agency standards for testing. The standards require samples to be tested within six hours, and laboratory records showed it took more than 20 hours for some samples to arrive. Some went untested in laboratories for two weeks.
On July 22, Frizzell told Edmondson he couldn't pursue $611 million in natural resources damages because he failed to include the Cherokee Nation in his lawsuit. The federally recognized Indian tribe has its headquarters in Tahlequah, Okla., and it claims interest to the land and water in the Illinois River watershed.
On Monday, Edmondson asked the court to reconsider its ruling regarding damages.
David Riggs, whose Tulsa firm is among four private law groups helping Edmondson with the case, said Frizzell's decision won't discourage the private attorneys. The firms are helping Edmondson on a contingency fee basis, meaning their pay is severely limited if damages aren't awarded.
"It's still a solemn duty," Riggs said. "We're committed as lawyers to our client.
"I can't speak for everybody, but I certainly see no letup in dedication. Since getting that order regarding the Cherokee Nation, we've spent a lot of long hours on this case. We will not change our commitment, and it will be obvious."
Defendants in the lawsuit are Tyson; Simmons Foods;
Cargill Inc.; Cobb-Vantress Inc.; George's, Inc.; Peterson Farms; Willow Brook Foods of
Springfield, Mo.; and Cal-
Maine Foods Inc. of Jackson,
Community, Pages 3 on 08/12/2009