Journal rejects science used in suit
TULSA, Okla. (AP)--An environmental lawsuit pitting Oklahoma against Arkansas poultry companies--with major ramifications for the nation's meat-producing industry--depends on tracing the path of chicken waste from the bird to the region's polluted water supply.
A microbiologist's method for tracking this waste has been rejected for publication twice by a leading, peer-reviewed scientific journal, Applied and Environmental Microbiology, The Associated Press has learned.
In a memo obtained by the AP, one of the journal's editors says reviewers were concerned about "the potential for application of the method to other geographic regions," "lack of necessary controls" and the "lack of appropriate statistical analyses" to support conclusions made by Valerie Harwood, a University of South Florida professor and expert witness for the state.
Published peer-reviewed research is the gold standard for scientific evidence, said Lise T. Spacapan, chairwoman of the toxic torts and environmental law committee for the Chicago-based Defense Research Institute, an organization that defends businesses and individuals in civil litigation.
"Scientists want to determine, when there is a finding as important as this, they want to be able to see that it's reproducible, not something that's made up for litigation," she said.
Oklahoma Attorney General Drew Edmondson is suing the industry in federal court and has even gone so far as to suggest poultry litter could have caused an E. coli outbreak last year at a northeastern Oklahoma restaurant that used well water. The August outbreak killed one man and sickened hundreds more, and health officials have yet to discover what caused it.
But unless he can prove that chicken waste, and not other pollutants, are to blame for much of the water pollution in the Illinois River watershed, he may find himself fighting an uphill battle in court, including a big test before the 10th U.S. Circuit Court of Appeals in Denver on March 11.
Critics of Edmondson's 2005 lawsuit against 13 Arkansas poultry companies--including Tyson Foods Inc., the world's largest meat producer--say the journal's rejection of Harwood's research shows her methods are unreliable and casts doubt on whether chicken waste is the main cause of pollution in the 1 million-acre watershed.
A loss for the poultry companies would be a major blow to hundreds of middleman farmers and poultry growers in Oklahoma and Arkansas whose livelihoods are tied to the success of the industry, and could set the stage for similar environmental lawsuits in other parts of the country where the industry is most concentrated.
Edmondson's office says the poultry industry tried to meddle in the journal's peer-review process, contacting editors at least three times to express concern over Harwood's methods and to try to discredit her.
"Lawyers for the poultry companies went so far in their communications with the publication to suggest that if they did choose to publish Dr. Harwood's work, the publication's selection process and, therefore, credibility would come under fire," said Emily Lang, a spokeswoman for the attorney general's office. "This is bordering on if not overtly threatening."
Gary Mickelson, a spokesman for Tyson, said the companies did nothing wrong and threatened no one, and provided the journal the same information they previously supplied the federal court.
"Dr. Harwood's peers in the scientific community subsequently had the same reaction as the court, concluding her work is not scientifically valid," he said.
Harwood, the author of dozens of peer-reviewed publications, technical reports and a book chapter, did not return a phone call and e-mail seeking comment.
She testified last year that she identified a poultry litter-specific "biomarker," and reportedly traced a path that contamination from poultry waste travels from fields into the watershed, a region dotted with more than 1,800 chicken houses that produces billions of pounds of the nation's poultry.
Her science played a key role in Oklahoma's request for a federal injunction to prevent poultry companies from disposing of the waste in the watershed, a practice thousands of farmers have employed there for decades as a cheap fertilizer. The injunction hearing stemmed from Edmondson's larger lawsuit against the companies, which claims that over-application of the waste on land could be a danger to public health.
In September, a federal judge ruled against an injunction, saying Oklahoma had not yet met its burden of proving that bacteria in the watershed are caused by poultry litter application, rather than other sources like cattle manure and septic systems.
Key in the judge's opinion was his rejection of Harwood's research and that of another expert witness, geochemist Roger Olsen, labeling their testimony as "not sufficiently reliable" because their work had not been peer reviewed or published.
Oklahoma will argue its appeal on the ruling March 11 at the 10th Circuit.
Harwood submitted some of her work on the case to the AEM, a journal published by the American Society of Microbiology.
According to a Jan. 23 e-mail, one of AEM's editors, Marylynn Yates, wrote that two of the reviewers had concerns about Harwood's paper.
"One of the most serious concerns," she wrote, "is the potential for application of the method to other geographic regions, as other studies have shown that these biomarkers lose specificity when tests are conducted using samples from a broader geographic field ..."
The poultry industry recently argued in a letter to Oklahoma health officials that Harwood's poultry-specific biomarker can also be found in ducks, geese, beach sand and cattle.
Yates, who did not return a phone call and e-mail seeking comment, noted in the memo that it was the second time Harwood's manuscript was rejected for scientific reasons and, per the publication's policy, she could not "resubmit the manuscript to any American Society for Microbiology journal."
Companies named in Oklahoma's 2005 pollution lawsuit include Tyson Foods Inc., Tyson Poultry Inc., Tyson Chicken Inc., Cobb-Vantress Inc., Cal-Maine Foods Inc., Cargill Inc., Cargill Turkey Production L.L.C., George's Inc., George's Farms Inc., Peterson Farms Inc., Simmons Foods Inc., Cal-Maine Farms Inc. and Willow Brook Foods Inc.