Toxic Exposure in Arkansas: The Chicken Littered Case of Green v. Alpharma, Inc. *

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1 Toxic Exposure in Arkansas: The Chicken Littered Case of Green v. Alpharma, Inc. * I. INTRODUCTION In Green v. Alpharma, Inc., the Arkansas Supreme Court found that the Green family provided sufficient evidence of arsenic exposure under the frequency, regularity, and proximity test to overcome a motion for summary judgment in their toxictort action against poultry-feed manufacturers. 1 Because the test allows for the use of circumstantial evidence to establish causation, it is controversial in toxic-exposure cases where there are multiple defendants whose tortious actions are indistinguishable and where the plaintiffs harm could be caused by the tortious action or by natural or unknown causes. On August 2, 2006, the Washington County Circuit Court granted summary judgment in favor of separate poultryproducing appellees: George s Farms, Inc.; George s Processing, Inc.; Simmons Foods, Inc.; Simmons Poultry Farms, Inc.; Peterson Farms, Inc.; and Tyson Foods, Inc. 2 The circuit court denied summary judgment in favor of the defendants, Alpharma, Inc. and Alpharma Animal Health Co., the poultryfeed manufacturers. 3 On appeal, the Arkansas Supreme Court reviewed whether the circuit court erred in granting summary * The author would like to thank Meredith Morgan, J.D. 2009, and Kim Flannery Coats, Associate Professor of Law, University of Arkansas School of Law. Without their patience and incite, this paper would not have been possible. The author would also like to thank the Arkansas Law Review Editorial Board, with whom it was an honor and a pleasure working with this year Ark. 378, 395, 284 S.W.3d 29, 42 (2008). The case against the poultry producers was remanded for trial in May 2009; the jury in that trial found for the defense. Trish Hollenbeck, Jury Hands Victory to Poultry Companies in Chicken Litter Lawsuit, NW. ARK. TIMES, May 15, 2009, at A1. 2. Green, 373 Ark. at 385, 284 S.W.3d at 29. These parties will be individually referred to as George, Simmons, Peterson, and Tyson respectively. Collectively they will be referred to as the poultry producers. 3. Id. The case against Alpharma and Alpharma Animal Health Co. proceeded to trial, and it took a jury approximately twenty-one minutes to find in favor of both companies. Scott F. Davis, Plaintiffs Want Expert Witness Testimony Allowed in 2nd Trial, NW. ARK. TIMES, Jan. 24, 2009, at A5.. These parties will be referred to as Alpharma.

2 392 ARKANSAS LAW REVIEW [Vol. 63:391 judgment to the poultry producers and in limiting and excluding expert testimony at trial. 4 The true question placed before the Arkansas Supreme Court was whether the appellants, Mary E. Green and Michael B. Green individually and as parents, next friends, and natural guardians of Michael Blu Green (Blu) during his minority and Blu Green, individually, produced sufficient evidence to overcome the appellees motion for summary judgment. 5 In deciding the matter, the Arkansas Supreme Court applied the frequency, regularity, and proximity test to evaluate whether the appellants provided sufficient evidence of toxic exposure. 6 This test allows a plaintiff to use circumstantial evidence including the frequency of exposure, the regularity of exposure, and the proximity of the toxic substance to the plaintiff s home or work to establish a prima facie case of causation. 7 The Arkansas Supreme Court found that the Greens provided sufficient circumstantial evidence in the form of the frequency, regularity, and proximity test to raise a genuine issue of material fact in order to prevail over the poultry producers motions for summary judgment. 8 This comment will address the application of the frequency, regularity, and proximity test to toxic-exposure cases where there are multiple defendants whose tortious actions are indistinguishable and where the plaintiff s harm could be caused by the tortious action or by natural or unknown causes. First, this comment will include the factual history of Green v. Alpharma, Inc., the most recent case where the Arkansas Supreme Court applied the frequency, regularity, and proximity test. 9 In order to analyze the use of the test, this comment will provide background information on the origins of the test beginning with its inception as an alternative to rigid proximatecause standards that require direct evidence of exposure. 10 Next, this comment will discuss the two main alternatives to the 4. Green, 373 Ark. at , 284 S.W.3d at Id. at 386, 284 S.W.3d at Id. at 389, 284 S.W.3d at See Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1163 (4th Cir. 1986). 8. See Green, 373 Ark. at , 284 S.W.3d at See infra Part II. 10. See infra Part III.A.

3 2010] TOXIC EXPOSURE IN ARKANSAS 393 use of the frequency, regularity, and proximity test alternative liability and market-share liability. 11 After that, this comment will outline the history of the frequency, regularity, and proximity test in Arkansas, including its application in Green. 12 Finally, this comment will suggest that the Arkansas Supreme Court should only apply the frequency, regularity, and proximity test when a plaintiff s disease is a type that does not ordinarily develop in the absence of negligence. 13 II. FACTUAL HISTORY Blu was a lifelong resident of Prairie Grove, Arkansas. 14 He lived with his parents, Mary and Michael Green, Sr., in their home located approximately one block from the Prairie Grove schools. 15 Blu attended school in Prairie Grove from 1991 until In the fall of 1999, Blu was diagnosed with a rare form of leukemia known as chronic myelogenous leukemia. 17 As a result, Blu received a bone-marrow transplant in April Following a lengthy hospital stay and follow-up care, Blu s medication had to be administered through a shunt with a direct line to his heart for two years. 19 While his cancer went into remission, Blu continued to suffer from permanent side effects, 11. See infra Part III.A See infra Part III.B See infra Part IV. 14. Green v. Alpharma, Inc., 373 Ark. 378, 382, 284 S.W.3d 29, 33 (2008). Prairie Grove is a small community composed of approximately 3,900 residents and is located four miles from Fayetteville, Arkansas. Prairie Grove has traditionally been an agricultural community. City of Prairie Grove, Arkansas, About Us, prairiegrovearkansas.org/aboutus.htm (last visited Apr. 14, 2010). Prairie Grove is located in Northwest Arkansas. This area is home to several of the world s largest poultry companies, including Tyson Foods, Inc. in Springdale. See Tyson, History, tyson.com/corporate/abouttyson/ (last visited Apr. 14, 2010). 15. Green, 373 Ark. at 382, 284 S.W.3d at Id. 17. Id. Chronic myelogenous leukemia is a rare form of cancer affecting blood cells. Chronic myelogenous leukemia is considered chronic because it generally progresses slowly, sometimes over a period of years. MayoClinic.com, Chronic Myelogenous Leukemia, DS00564 (last visited Apr. 14, 2010). 18. Green, 373 Ark. at 382, 285 S.W.3d at Id.

4 394 ARKANSAS LAW REVIEW [Vol. 63:391 including cataracts, nail- and hair-growth problems, sterility, and an increased risk of skin cancers. 20 The Greens alleged that these injuries were the result of his exposure to chicken litter containing arsenic from the animal-feed additive 3-Nitro In 1991, poultry-feed manufacturers began selling 3-Nitro This additive contains roxarsone, an organic arsenical compound Nitro 20 is said to improve growth efficiency and to prevent certain intestinal diseases in chickens. 24 The packaging of 3-Nitro 20 includes warnings that it is toxic and that the dust should not be inhaled. 25 Each poultry producer involved in the case had used 3- Nitro 20 as an additive in their chicken feed for the past few decades. 26 Once consumed by the chickens, the arsenic in 3- Nitro 20 passes through the chickens and into their litter. 27 As part of the production agreement with the individuals who contract to raise the chickens, the poultry producers required their growers to remove all the chicken litter from the houses after each flock is removed. 28 Those growers then had the litter spread as a fertilizer on fields around Prairie Grove and other areas. 29 The court noted that according to the spreaders and the Prairie Grove residents, the spreading process caused dust clouds around town. 30 Because of the injuries believed to have been caused by exposure to the toxic dust, in December 2003 the Greens and a number of other named plaintiffs filed a complaint against Alpharma; Cal-Maine Farms, Inc.; Cargill, Inc.; George s Farm, Inc.; George s Processing, Inc.; Peterson Farms, Inc.; Simmons 20. Id. 21. Id. at , 284 S.W.3d at Id. at 382, 284 S.W.3d at Green, 373 Ark. at 382, 284 S.W.3d at Id.; see also Drugs.com, Veterinary Product Information, vet/3-nitro-20.html (last visited Apr. 14, 2010). 25. Green, 373 Ark. at 382, 284 S.W.3d at Id. at , 284 S.W.3d at Id. at 382, 284 S.W.3d at Id. 29. Id. 30. Green, 373 Ark. at 382, 284 S.W.3d at 33.

5 2010] TOXIC EXPOSURE IN ARKANSAS 395 Foods, Inc.; and Tyson Foods, Inc. 31 The plaintiffs alleg[ed] that the arsenic-laden chicken litter, which was produced by [the defendants ] 3-Nitro-fed chickens, polluted the air surrounding Prairie Grove and infiltrated their homes, schools, and places of business, thereby causing [Blu s] leukemia and the other plaintiffs injuries. 32 More specifically, the plaintiffs alleged that their exposure to byproducts of the poultry industry led and/or contributed to their injuries. 33 Further, plaintiffs alleged that exposure to the arsenic contained in the chicken litter had created a cancer cluster 34 in the Prairie Grove area. 35 In their complaint, the plaintiffs alleged four counts: (1) negligence; (2) negligence per se; (3) intentional failure to warn, concealment, and/or misconduct; and (4) strict liability/product liability. 36 All the individual poultry producers filed separate motions for summary judgment. 37 On January 25, 2006, Tyson filed a motion for summary judgment claiming that [t]he medical conditions involved in this case [were] not the type of conditions for which the scientific community has recognized a causal connection with poultry litter and/or arsenic. 38 On January 30, 31. Id. at , 284 S.W.3d at 33. The circuit court granted the appellees motions to sever the claims of each of the individual plaintiffs. The court stated that the claims were improperly joined and [did] not meet the standard for permissive joinder set forth in Arkansas Rule of Civil Procedure 20(a). Id. at 383 n.1, 284 S.W.3d at 33 n Id. at , 284 S.W.3d at Id. at 383, 284 S.W.3d at A cancer cluster is defined as a greater-than-expected number of cancer cases that occurs within a group of people in a geographic area over a period of time. Centers for Disease Control and Prevention, About Cancer Clusters, clusters/about.htm (last visited Mar. 2, 2010). A 2002 study by the Arkansas Department of Health found that children at Prairie Grove Schools were not being exposed to soil contaminants from the school at levels that could cause adverse health effects. Press Release, Ark. Dep t of Health, Prairie Grove Upper Elementary School Soil Sample Results (Dec. 4, 2002), available at pr_prairiegrove_water_ html. The Arkansas Department of Health also conducted water- and soil-sample testing as a part of its investigation into the claims that the Prairie Grove area was a cancer cluster. Press Release, Ark. Dep t of Health, Update on Cancer Investigation in Prairie Grove (May 15, 2002), available at com/news/pr_prairiegrove_update_ htm. This study, including a sample taken from the high school football field, revealed that residents were not exposed to soil contaminants at levels that cause adverse health effects. Id. 35. Green, 373 Ark. at 383, 284 S.W.3d at Id. 37. Id. at , 284 S.W.3d at Id. at 383, 284 S.W.3d at 34.

6 396 ARKANSAS LAW REVIEW [Vol. 63: , Simmons filed a summary-judgment motion claiming that the plaintiffs could not meet their burden of proof on causation. 39 On January 31, 2006, Peterson filed a motion for summary judgment and argued that the plaintiffs failed to produce evidence that Peterson s acts were the specific cause of the plaintiffs injuries because Peterson did not have a poultry contract in Washington County prior to Finally, George filed a motion for summary judgment adopting Tyson s arguments. 41 Essentially, each defendant argued that the plaintiffs could not show sufficient evidence that an individual company specifically caused their damages. 42 On August 2, 2006, the Circuit Court of Washington County granted the poultry producers separate motions for summary judgment and denied summary judgment for Alpharma. 43 In an order at the end of the hearing, the court stated: The burden is on the plaintiff to prove that the exposure of the plaintiff to the product applied was a substantial factor applied by a specific defendant.... [U]nfortunately for the plaintiffs in this case, Arkansas has not adopted the market share theory of liability, but has retained the traditional requirement of proximate cause to each defendant. I understand that s a difficult proposition sometimes, but that still doesn t mean that s not what the law requires. As I read the law the best I can, each plaintiff must prove that each defendant s product was a substantial factor in causing their particular disease. 44 The Greens filed a timely notice appealing that order Id. 40. Green, 373 Ark. at 383, 284 S.W.3d at Id. at , 284 S.W.3d at Id. 43. Id. at 385, 284 S.W.3d at Id. 45. Green, 373 Ark. at 385, 284 S.W.3d at 35.

7 2010] TOXIC EXPOSURE IN ARKANSAS 397 III. HISTORICAL BACKGROUND A. Development of Standards for Toxic Tort Liability The standards developed for evaluating causation are consistently evolving in order to better determine and assign liability in tort cases. This section will address the but-for and substantial-factor tests for establishing causation. 46 In addition, this section will evaluate the standards developed to evaluate causation in toxic-tort cases, including the frequency, regularity, and proximity test. 47 Finally, this section will address standards used as alternatives to the frequency, regularity, and proximity test General Standards for Establishing Causation Typically, a plaintiff in a negligence or intentional-tort action is required to show that the defendant caused his or her injury. This causation element generally requires a showing that the defendant s actions were of a type capable of causing such an injury and that the actions were an actual and proximate cause of the injury. 49 Generally, there are two types of tests that can be used to establish proximate cause the but-for test and the substantial-factor test. 50 The but-for test evaluates whether or not the plaintiff would have been injured but for the defendant s negligent actions. 51 This test, which is the general rule in most jurisdictions, is not without limitation. 52 Such limitations include situations where some other person s negligence also contributed to the harm See infra Part III.A See infra Part III.A See infra Part III.A Like many others, this paper includes in its discussion of proximate cause the concept of legal cause. This is consistent with the way in which many courts treat proximate cause. See, e.g., AMERICAN LAW OF PRODUCTS LIABILITY 4:2 (3d ed. 2008) DAVID G. OWEN ET AL., MADDEN & OWEN ON PRODUCTS LIABILITY 2:12 (3d ed. 2000). 51. See id. 52. Id. 53. See, e.g., Hill v. Edmonds, 26 A.D.2d 554 (N.Y. App. Div. 1966). In Hill, the plaintiff was a passenger in an automobile that was involved in an accident. Id. at 554. The plaintiff sued both the driver of the vehicle the plaintiff was riding in and the owner of the other vehicle, which had been parked in the road with its lights off. Id. The court,

8 398 ARKANSAS LAW REVIEW [Vol. 63:391 and where there are concurrent causes of the harm, each of which is sufficient to cause the same harm without the others. 54 As an alternative to the but-for test, several jurisdictions have developed the substantial-factor test. 55 The substantialfactor test was originally developed for use in independent- and concurrent-cause circumstances where the but-for test could not be used to assess liability as between two or more equally culpable and causally connected actors. 56 Substantial, in the test, means that the defendant s negligent act had such an effect on the plaintiff as to lead a reasonable person to believe that the act was a cause of the harm. 57 If the defendant s act is found to be a substantial factor, then the act is the actual cause of the plaintiff s damage. 58 The classic example of the necessity for the substantial-factor test is where two negligent actors start separate fires that together burn down the plaintiff s home Causation in Toxic Exposure Litigation In toxic-tort litigation, a court or jury evaluates no more difficult question than that of causation. 60 Like causation in other areas of tort litigation, fact finders in toxic-tort litigation generally must answer two specific questions regarding causation. 61 The first question that must be answered is whether assuming arguendo that the driver was negligent, found that the combined negligence caused the accident and that neither party should be dismissed because the accident would not have occurred without the other party s negligence. Id. 54. See, e.g., Kingston v. Chicago & N.W. Ry., 211 N.W. 913 (Wis. 1927). In Kingston, the plaintiff brought suit against the defendant for damages stemming from a fire caused by the defendant s train. Id. at 913. Defendants argued that the fire from the train merged with a fire from an unknown source and combined to burn the plaintiff s property. Id. at 914. The court held that the defendant was liable for the entire damage, even though the damage could have been caused without the defendant s act. Id. at See OWEN ET AL., supra note Id. 57. RESTATEMENT (SECOND) TORTS 431 cmt. a (1965). 58. See id See OWEN ET AL., supra note Danielle Conway-Jones, Factual Causation in Toxic Tort Litigation: A Philosophical View of Proof and Certainty in Uncertain Disciplines, 35 U. RICH. L. REV. 875, 886 (2002). 61. See Brian M. DiMasi, The Threshold Level of Proof of Asbestos Causation: The Frequency, Regularity, and Proximity Test and a Modified Summers v. Tice Theory of Burden-Shifting, 24 CAP. U. L. REV. 735, 740 (1995) (evaluating causation for plaintiffs alleging asbestos exposure).

9 2010] TOXIC EXPOSURE IN ARKANSAS 399 or not exposure to the substance can cause injuries of the type the plaintiff suffered. 62 The second, more difficult, question for the fact finder to answer is whether exposure to a substance manufactured or used by a defendant was an actual or specific cause of the plaintiff s injuries. 63 Typically, the first question can be answered through medical testimony showing or not showing a link between the substance the plaintiff was exposed to and the injury. 64 Plaintiffs, however, have had a much more difficult time proving specific causation, and this struggle has been the source of controversy and change in the toxic-tort arena. 65 This creates a difficult burden for the plaintiff to meet even in the traditional tort case. In the simplest cases, it can be difficult to provide direct evidence showing the causal link between the defendant s actions and the plaintiff s injuries. This difficulty is magnified in toxic-tort cases where the injuries can be attenuated from the exposure, 66 where the toxic substance is not readily identifiable as the cause of injury, 67 and where the injury can often also be caused by natural or unidentified means. 68 Simply, a plaintiff in those circumstances often cannot establish[] direct traceability in toxic exposure cases to satisfy 62. DAN B. DOBBS, THE LAW OF TORTS 166 (2000). 63. Id. 64. See id. 65. See id. 166, See Mark D. Seltzer, Personal Injury Hazardous Waste Litigation: A Proposal for Tort Reform, 10 B.C. ENVTL. AFF. L. REV. 797, (1983). The author notes, [By] the very nature of hazardous waste pollution-related diseases... the causal links in the chain between exposure and injury are seriously attenuated. Id. at Ora Fred Harris, Jr., Toxic Tort Litigation and the Causation Element: Is There Any Hope of Reconciliation?, 40 SW. L.J. 909, 909 (1986). The singular nature of a toxic tort injury with its inherent problems of latency and causal indeterminacy wreaks havoc with establishing the fault of a specific individual or corporate entity and presents well-nigh insuperable problems in demonstrating the requisite causal relationship between exposure to a hazardous waste or toxic substance and a victim s subsequent injury. Id. 68. See Samuel D. Estep, Radiation Injuries and Statistics: The Need for a New Approach to Injury Litigation, 59 MICH. L. REV. 259, 262 (1960) ( When... the biological causal relationship also is non-specific (it may be caused by radiation but also arises among unexposed groups and no differentiation between those cases caused by radiation and those caused otherwise is possible), the legal problems, difficult before, become unmanageable under existing rules. ).

10 400 ARKANSAS LAW REVIEW [Vol. 63:391 the causation element. 69 For those reasons, courts have attempted to establish a number of alternatives to this rigorous proximate-cause standard. 3. The Lorhrmann v. Pittsburgh Corning Corp. Frequency, Regularity, and Proximity Test In an effort to solve some of these difficult causation issues in asbestos cases, the Fourth Circuit Court of Appeals applied the frequency, regularity, and proximity test as a standard for evaluating the sufficiency of the evidence of exposure in Lorhmann v. Pittsburgh Corning Corp. 70 This test allowed for the use of circumstantial evidence to show exposure. In Lohrmann, the appellant was a pipefitter who worked in a Baltimore shipyard. 71 He claimed that he developed asbestosis as a result of exposure to various asbestos-containing products manufactured by numerous defendants. 72 The lower court granted directed verdicts to a number of defendants, finding as a matter of law that there was insufficient evidence to establish causation. 73 On appeal, the plaintiff challenged the standard used by the court in granting the directed verdicts. 74 He proposed that the Fourth Circuit adopt a rule that would allow toxic-exposure cases to proceed to a jury any time a plaintiff could produce any evidence that an asbestos-containing product and the plaintiff were simultaneously present at the plaintiff s workplace. 75 The Fourth Circuit declined to adopt this rule, instead adopting the district court s rule that [w]hether a plaintiff could successfully get to the jury or defeat a motion for summary judgment under such a theory would depend upon the frequency of the use of the product and the regularity or extent of the plaintiff s employment in proximity thereto. 76 The court described this as 69. See Conway-Jones, supra note 60, at F.2d 1156, 1158 (4th Cir. 1986). 71. Id. at Id. 73. Id. at Id. at Lohrmann, 782 F.2d at Id. at The court also described the rule in this manner: To support a reasonable inference of substantial causation from circumstantial evidence, there must be

11 2010] TOXIC EXPOSURE IN ARKANSAS 401 a de minimis rule requiring the plaintiff to prove more than a casual or minimum contact with the product. 77 The Fourth Circuit found this rule appropriate because of the nature of asbestos litigation. 78 The court explained that asbestos litigation: [H]as developed over the past decade, most plaintiffs sue every known manufacturer of asbestos products, and during the course of discovery some of the defendants are dismissed on motions for summary judgment because there has been no evidence of any contact with any of such defendants asbestos-containing products. Other defendants may be required to go to trial but succeed at the directed verdict stage. Some defendants settle prior to trial, and these are usually the defendants whose products have been most frequently identified by the plaintiff and his witness as having been used by the plaintiff or by others in his presence or working near him. 79 The court determined that Lohrmann s case was typical of that pattern. 80 The court also found that the frequency, regularity, and proximity test was consistent with Maryland s laws for establishing causation. 81 It noted that [t]o establish proximate causation in Maryland, the plaintiff must introduce evidence which allows the jury to reasonably conclude that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. 82 For both evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked. Id. 77. Id. at See id. 79. Id. 80. Lohrmann, 782 F.2d at Id. 82. Id. This is the same standard as that set forth in section 431 of the Restatement (Second) of Torts, which provides: The actor s negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm. RESTATEMENT (SECOND) OF TORTS 431 (1965).

12 402 ARKANSAS LAW REVIEW [Vol. 63:391 reasons, the court adopted the frequency, regularity, and proximity test. 83 The Lohrmann test has been adopted by numerous courts. 84 However, it is not without its criticisms. 85 The court reasoned that without evaluating the dosage there were situations where there was no way to determine whether the exposure was sufficient to cause the plaintiff s damage Alternative Theories for Establishing Causation Because of the perceived shortcomings of the frequency, regularity, and proximity test, a number of courts and scholars developed alternative theories for evaluating causation in toxictort-exposure cases. Numerous theories abound. The two main alternatives proposed are alternative liability and market-share liability. a. Alternative Liability Alternative liability is a theory that was first proposed in the California Supreme Court case of Summers v. Tice. 87 In Summers, two quail hunters both negligently fired shotguns toward the plaintiff, and a pellet from one of the shots injured the plaintiff s eye. 88 The two hunters fired more or less simultaneously; therefore, the plaintiff could not identify whose shot was responsible for the eye injury. 89 The court found that 83. Lohrmann, 782 F.2d at See, e.g., Jackson v. Anchor Packing Co., 994 F.2d 1295, 1303 (8th Cir. 1993); Tragarz v. Keene Corp., 980 F.2d 411, 420 (7th Cir. 1992); Slaughter v. Southern Talc Co., 949 F.2d 167, 171 (5th Cir. 1991). In all but the First, Second, Fifth, and D.C. Circuits, courts have adopted the frequency, regularity, and proximity test. Charles T. Greene, Determining Liability in Asbestos Cases: The Battle to Assign Liability Decades After Exposure, 31 AM. J. TRIAL ADVOC. 571, 573 (2008). State Courts in Michigan, Massachusetts, New Jersey, Illinois, Pennsylvania, Maryland, Nebraska, Oklahoma, and Arkansas have adopted the test as well. Id. 85. See, e.g., Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 773 (Tex. 2007) (holding that plaintiff must provide [d]efendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos-related disease ). 86. Id. at P.2d 1 (Cal. 1948). 88. Id. at Id. at 2-3.

13 2010] TOXIC EXPOSURE IN ARKANSAS 403 both defendants had acted negligently toward the innocent plaintiff. 90 Under traditional proximate-cause standards, however, the plaintiff would have been unable to show which defendant was likely to have caused the eye injury. 91 To deal with this problem, the lower court required that the plaintiff show both defendants acted negligently, then shifted to each defendant the burden of proving that he was not the actual cause of the eye injury. 92 Damages were then assessed under the theory of joint-and-several liability. 93 The California Supreme Court adopted this burden shift and affirmed. 94 In situations of multiple negligent tortfeasors, often the plaintiff s problem is that even though all defendants acted negligently, only one actually caused the injury. 95 To solve this issue, under an alternative-liability theory the court presumes that all defendants caused the whole injury unless a defendant can prove otherwise. 96 One court noted that under the alternative liability theory, a plaintiff does not prove individual causation as part of a prima facie case but rather just a threshold level of factual connection. 97 Instinctively, this burden shift seems fair where all the individuals who could have caused the harm appear before the court and each has equal odds of being the actual cause of the plaintiff s harm. 98 The authors of the Restatement (Second) of Torts justified this burden shift in order to prevent the injustice of permitting proved wrongdoers, who among them have inflicted an injury upon the entirely innocent plaintiff, to escape liability merely because the nature of their 90. Id. at Id. 92. See Summers, 199 P.2d at 2; see also RESTATEMENT (SECOND) OF TORTS 433B(3) (1965) (adopting language similar to that in Summers). 93. Summers, 199 P.2d. at Id. 95. See, e.g., id. at See id. at Menne v. Celotex Corp., 861 F.2d 1453, 1466 (10th Cir. 1988) (holding that it is not unreasonable to allow for a burden shift in asbestos cases.). 98. Id. The court continued, [T]he requirement that all potential defendants be before the court assures that the cause is before the court and will be among those found liable. Id.

14 404 ARKANSAS LAW REVIEW [Vol. 63:391 conduct and the resulting harm has made it difficult or impossible to prove which of them has caused the harm. 99 b. Market-Share Liability A second alternative to the frequency, regularity, and proximity test is market-share liability. The market-shareliability theory also involves a shift of the burden of proof to the defendants once a showing is made that all the defendants acted negligently. 100 The theory imposes liability based upon a defendant s share of the market for the product that caused the plaintiff s injury. 101 In order for the burden shift to occur, the plaintiff must join as defendants all manufacturers who represent a substantial share of the market for that particular product. 102 Once liability has been established, each manufacturer is liable for the portion of the judgment that corresponds to its share of the market, unless the manufacturer can show that it did not make the actual product that injured the plaintiff. 103 The market-share-liability theory was developed in California during litigation involving diethylstilbesterol (DES), a drug that is a synthetic compound of the female hormone estrogen. 104 Doctors prescribed the drug to expectant mothers in order to prevent miscarriages. 105 The drug was found to cause cancer in women exposed to the drug before birth. 106 A plaintiff alleged several causes of action against the numerous manufacturers of DES. 107 The plaintiff could not show which company manufactured the actual pill that her mother took, and as such, the plaintiff proceeded under several theories of liability. 108 These theories essentially include alternative liability and enterprise liability. 109 The court rejected those and 99. RESTATEMENT (SECOND) OF TORTS 433B(3) cmt. f (1965) AMERICAN LAW OF PRODUCTS LIABILITY 89:23 (3d ed. 2009) Id Id Id Sindell v. Abbott Labs., 607 P.2d 924, 925 (Cal. 1980) Id Id Id. at Id. at Sindell, 607 P.2d. at 928. The term enterprise liability is sometimes used broadly to mean that losses caused by an enterprise should be borne by it. Id. at 928 n.9.

15 2010] TOXIC EXPOSURE IN ARKANSAS 405 proposed as an alternative the extension of Summers v. Tice s theory of alternative liability. 110 This extension allowed for the shifting of the burden of proof, not only when all the defendants were joined, but also when defendants representing a substantial share of the market were joined. 111 One main reason the court proposed the use and extension of the Summers theory was that it placed the burden of proof on those who were in the best position to provide evidence showing which defendant or defendants caused the injury. 112 The court reasoned that this was fair because the defendants had acted negligently. 113 The ultimate reason the court cited for the extension is that the plaintiff was not at fault for being unable to show which of the negligent defendants was the actual cause of the damages, and in general as between an innocent plaintiff and negligent defendants, the latter should bear the cost of the injury. 114 B. Causation Theories in Arkansas As in any jurisdiction, a plaintiff in a tort action in Arkansas is required to prove the defendant was the proximate cause of his injuries. 115 Arkansas courts have described proximate cause as the cause that in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. 116 Where the acts of multiple defendants 110. Id Id. at Id. at Id Sindell, 607 P.2d at See, e.g., Jackson v. Anchor Packing Co., 994 F.2d 1295, 1301 (8th Cir. 1993) ( We note at the outset that Arkansas tort law has traditionally required plaintiffs to prove proximate causation whether they are proceeding under a negligence or strict liability theory. ) Chambers v. Stern, 347 Ark. 395, 406, 64 S.W.3d 737, 744 (2002) (quoting Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997)). For more information on Arkansas s standard for proximate cause, see J.E. Merit Constructors, Inc. v. Cooper, 345 Ark. 136, 142, 44 S.W.3d 336, 340 (2001) (holding that to establish a prima facie case in tort, a plaintiff must show that the defendant s negligence was a proximate cause of the damages); Arthur v. Zearley, 337 Ark. 125, , 992 S.W.2d 67, (1999) (holding when there is evidence to establish a causal connection between the negligence of the defendant and the damage, it is proper for the case to go to the jury).

16 406 ARKANSAS LAW REVIEW [Vol. 63:391 individually may have produced the plaintiff s injuries, the plaintiff must introduce sufficient evidence to allow a jury to find that more likely than not [the defendant s actions were] a substantial factor in producing [his] injuries The Adoption of the Frequency, Regularity, and Proximity Test in Arkansas: Chavers v. General Motors Corp. In apparent conjunction with the substantial-factor requirement, the Arkansas Supreme Court adopted the frequency, regularity, and proximity test for use in asbestos litigation. 118 In the Chavers case, Mr. Chavers was diagnosed with malignant mesothelioma. 119 After his death, Chavers widow filed a wrongful-death action alleging that Mr. Chavers developed mesothelioma as a result of his exposure to a number of asbestos-containing products, including brake parts. 120 According to Mr. Chavers, who was deposed prior to his death, he was exposed to asbestos while working in the construction industry, while working for a demolition company, and while working as a shade tree mechanic. 121 Originally, Ms. Chavers suit was against a variety of companies alleged to have engaged in the manufacture or sale of asbestos-containing products. 122 However, the court dismissed her suit except against several automobile and automobile-part manufacturers, Proximate cause may be shown from circumstantial evidence, and such evidence is sufficient to show proximate cause if the facts proved are of such a nature and are so connected and related to each other that the conclusion may be fairly inferred. Id. at , 992 S.W.3d at 73. The original act is not eliminated as a proximate cause by an intervening act, unless the latter is in itself sufficient to stand as the cause of the injury, and the intervening cause must be such that the injury would not have been suffered except for the act, conduct, or effect of the intervening cause totally independent of the acts or omissions constituting the primary negligence. Ouachita Wilderness Inst., Inc. v. Mergen, 329 Ark. 405, S.W.2d 780, 785 (1997) Green v. Alpharma, Inc., 373 Ark. 378, 388, S.W.3d (2008) (quoting Jackson v. Anchor Packing Co., 994 F.2d 1295 (8th Cir. 1993)) See Chavers v. General Motors Corp., 349 Ark. 550, 562, 79 S.W.3d 361, 369 (2002) Id. at 552, 79 S.W.3d at Id. at , 79 S.W.3d at Id. at , 79 S.W.3d at Id. at 553 n.1, 79 S.W.3d at 363 n.1.

17 2010] TOXIC EXPOSURE IN ARKANSAS 407 including General Motors Corp., Ford Motor Company, and AlliedSignal, Inc. 123 Mr. Chavers testified that when working as a mechanic, his work generally consisted of replacing brakes and transmissions. 124 Mr. Chavers also testified that replacing brake drums required him to blow dust out of the drum before putting new brakes on the car. 125 He specifically remembered working with brake products from General Motors, Ford, and AlliedSignal, Inc. 126 Based on this information, each of the appellees filed a separate motion for summary judgment. 127 Essentially, each appellee argued that Ms. Chavers had failed to show that the actions of the appellees were a substantial factor in causing Mr. Chavers s illness. 128 The trial court granted their motions, finding that Ms. Chavers had failed to produce evidence of specific product identification and had failed to produce sufficient evidence to satisfy the frequency, regularity, and proximity test. 129 Ms. Chavers appealed a number of the trial court s decisions; particularly she argued that it was an error for the court to apply the frequency, regularity, and proximity test to mesothelioma cases. 130 She argued that the frequency, regularity, and proximity test was inappropriate in cases of direct rather than circumstantial evidence. 131 After citing language from several Eighth Circuit decisions, 132 the Arkansas Supreme Court rejected Ms. Chavers s arguments and adopted 123. Chavers, 349 Ark. at 553 n.1, 79 S.W.3d at 363 n Id. at , 79 S.W.3d at Id. at 554, 79 S.W.3d at Id. General Motors marketed brakes under the brand name AC-Delco; AlliedSignal marketed brakes under the Bendix brand. Id. at 563, 79 S.W.3d at Id. at 557, 79 S.W.3d at Chavers, 349 Ark. at 557, 79 S.W.3d at Id. at , 79 S.W.3d at Id. at 558, 79 S.W.3d at Id. at 558, 79 S.W.3d at Chism v. W.R. Grace & Co., 158 F.3d 988 (8th Cir. 1998) (applying the frequency, regularity, and proximity test in an asbestos exposure case); see also Jackson v. Anchor Packing Co., 994 F.2d 1295 (8th Cir. 1993) (finding the frequency, regularity, and proximity test to be the proper test in Arkansas law to determine whether proximate cause had been established in asbestos cases).

18 408 ARKANSAS LAW REVIEW [Vol. 63:391 the frequency, regularity, and proximity test. 133 The court found that in order to survive a motion for summary judgment, Ms. Chavers was required to prove the following elements: (1) exposure to a particular asbestos-containing product made by the defendants; (2) with sufficient frequency and regularity; (3) in proximity to where he worked; and (4) such that it is probable that the exposure to the defendants products caused the plaintiff s injuries. 134 In applying the test to the facts in the Chavers case, the court found that Ms. Chavers failed to supply sufficient evidence to meet each requirement for each individual appellee. 135 As to the defendants General Motors and AlliedSignal, the court found that the plaintiff failed to establish sufficient exposure to a product manufactured by either company. 136 In his previous testimony, Mr. Chavers never identified any General Motors products that he had used, nor could he recall the makes and models of vehicles that he had worked on. 137 As for AlliedSignal, Mr. Chavers identified a box of Bendix brakes but noted that they were disc brakes and that he mostly used brake shoes. 138 However, AlliedSignal indicated in its response to interrogatories that it did not manufacture brake shoes containing asbestos. 139 For those reasons, the court found the evidence insufficient to establish exposure to asbestoscontaining products manufactured by either General Motors or AlliedSignal. 140 Regarding Ford, the court found that Ms. Chavers evidence failed to establish that the exposure took place with sufficient frequency or regularity. 141 Mr. Chavers could only recall specifically using Ford Motor Company products one time. 142 The court found that one exposure was not sufficient to 133. Chavers, 349 Ark. at , 79 S.W.3d at Id. at 562, 79 S.W.3d at Id. at , 79 S.W.3d at Id. at 562, 79 S.W.3d at Id. at 563, 79 S.W.3d at Chavers, 349 Ark. at 563, 79 S.W.3d at Id Id Id Id. at 564, 79 S.W.3d at 370.

19 2010] TOXIC EXPOSURE IN ARKANSAS 409 meet the requirements of frequency or regularity. 143 Because Ms. Chavers did not meet the requirements of the frequency, regularity, and proximity test, the court affirmed the district court s grant of summary judgment The Application of the Frequency, Regularity, and Proximity Test in Green v. Alpharma, Inc. In Green, the Arkansas Supreme Court used the frequency, regularity, and proximity test to evaluate the plaintiffs evidence of exposure and determined that the plaintiffs had provided sufficient evidence to overcome the defendant s motion for summary judgment. 145 In beginning its analysis, the court recognized the origins of the frequency, regularity, and proximity test in both the Fourth the Eighth Circuits. 146 Applying the test as described in Chavers, the court first noted that the Greens were required to prove that: (1)[Blu] was exposed to the arsenic-laced chicken litter spread by the poultry producers, (2) with sufficient frequency and regularity, (3) in proximity to where he actually worked (or, in this case, where he lived and went to school), (4) such that it is probable that the exposure to the arsenic-laced chicken litter caused [Blu] s injuries. 147 The court then analyzed each of the four prongs of the test separately. 148 First, the court analyzed the exposure prong of the test. 149 Under the exposure prong of the test, the Greens were required to prove exposure to the arsenic-laced chicken litter. 150 To meet this requirement, the Greens provided the affidavit of Dr. Rod O Conner. 151 In the affidavit, Dr. O Conner testified that 143. Chavers, 349 Ark. at 564, 79 S.W.3d at Id Green v. Alpharma, Inc., 373 Ark. 378, , , 284 S.W.3d 29, 37-38, 42 (2008) Id. at , 284 S.W.3d at Id. at 389, 284 S.W.3d at See infra Part II.B Green, 373 Ark. at , 284 S.W.3d at Id. at 389, 284 S.W.3d at Id.

20 410 ARKANSAS LAW REVIEW [Vol. 63:391 there was arsenic in the Greens home that originated from poultry operations. 152 Dr. O Conner also stated that: [S]ufficient information has been obtained from poultry litter spreaders, landowners, growers, and persons in the area to establish a reasonable degree of scientific certainty that poultry litter from [Tyson, Simmons, George, and Peterson] was frequently and regularly applied, over a period of at least twenty years, at locations in such a manner as to harmfully impact [the] Plaintiffs. 153 The Greens also provided numerous other evidentiary items, including a study finding that the dust in the Green household contained 66.9 parts per million of arsenic; 154 the affidavit of Dr. Devraj Sharma; 155 and numerous affidavits and depositions of spreaders, property owners, teachers, and medical personnel. 156 In response, Tyson argued that (1) if defendants products were used in the general vicinity of a large area, then plaintiff s presence may be deemed as insufficient evidence of exposure to withstand summary judgment ; and (2) expert testimony cannot contain broad and conclusory allegations or that testimony would be insufficient to raise a general [sic] issue of material fact. 157 The court found Tyson s arguments insufficient. 158 First, it stated that Dr. O Conner s findings regarding Green s exposure were not merely conclusory but were in fact based upon the application of his own sample with the appropriate research 152. Id. Dr. O Conner based this conclusion on the finding of Roxarsone in the home. Id Green, 373 Ark. at 389, 284 S.W.3d at 38 (alteration in original). As a part of the normal process of raising chickens, the growers clean the litter out of the chicken houses. Id. at 382, 284 S.W.3d at 33. A spreader then spreads the litter on farm fields as a fertilizer. Id Id. at , 284 S.W.3d at Id. at 390, 284 S.W.3d at 38. The affidavit establish[ed] facts concerning the longevity, durations, frequency, and regularity of Plaintiff s exposures at locations that [were] in close proximity to areas where the arsenic from Roxarsone was regularly discharged into the atmosphere by the practice of spreading of poultry-litter Id. at 391, 284 S.W.3d at 39. The affidavits supported the conclusion that Green was exposed to poultry litter. Id Id. at 390, 284 S.W.3d at Green, 373 Ark. at 390, 284 S.W.3d at 39.

21 2010] TOXIC EXPOSURE IN ARKANSAS 411 materials. 159 Next, the court found that Dr. Sharma based his testimony on scientific investigations of data, reports, and analyses of data. 160 Finally, the court noted that the affidavit of an expert is sufficient to defeat a motion for summary judgment, 161 and accordingly the plaintiffs affidavits had done just that. 162 The court included in its breakdown of the exposure prong of the frequency, regularity, and proximity test an analysis of the general-causation requirement. 163 In order to meet this generalcausation requirement, the court recognized that the Greens had to provide evidence linking arsenic exposure to chronic myelogic leukemia. 164 On this issue, the Greens submitted the affidavit of at least three doctors. The first, Dr. James Dahlgren, testified that [w]ith reference to general causation, arsenic is a potent cancer promoter in adults and a complete carcinogen in the fetus... [t]here is no safe level of exposure to a carcinogen. 165 Next, Dr. William Sawyer testified through his affidavit that he was certain to within a high degree of toxicological certainty that [the plaintiffs] were exposed to excessive arsenic through household dust ingestion on a chronic and regular daily exposure basis... [sufficient] to induce both cancer and non-cancer toxicological endpoints associated with arsenic. 166 Finally, the Greens supplied the affidavit of Dr. Michael A. Wolfson, who testified that the arsenic exposures caused or substantially contributed to the development of Blu s chronic myelogic leukemia. 167 After considering these affidavits, the court concluded that the Greens raised sufficient 159. Id Id Id. at , 284 S.W.3d at 39 (citing Benton County v. Overland Dev. Co., Inc., 371 Ark. 559, 268 S.W.3d 885 (2007)) Id. at 391, 284 S.W.3d at Green, 373 Ark. at , 284 S.W.3d at 39-40; see also supra notes and accompanying text (discussing the distinct difference between the analysis of general or medical causation and legal causation) See Green, 373 Ark. at 391, 284 S.W.3d at Id. at 391, 284 S.W.3d at Id. at 392, 284 S.W.3d at Id. (alteration in original).

22 412 ARKANSAS LAW REVIEW [Vol. 63:391 facts regarding general or medical causation to defeat the motion for summary judgment. 168 Next, the court considered whether Green had been exposed to the chicken litter with sufficient frequency and regularity. 169 In order to support their allegation that the poultry producers had used arsenic in their chicken feed for years, the Greens submitted numerous depositions. 170 These depositions included testimony confirming that George, Peterson, Simmons, and Tyson had begun using chicken feed containing 3-Nitro 20 at least thirteen-and-one-half years before. 171 The Greens also submitted testimony from numerous spreaders from in and around Prairie Grove. 172 The spreaders testified that they took chicken litter from each of the poultry farmers and spread it on fields in and around the Prairie Grove area, including the area around the Prairie Grove School. 173 In addition, the spreaders testified that they had spread chicken litter one or two times a year some for as long as thirty years. 174 Again, the court s discussion of the evidence and its ultimate holding show that it found the Greens evidence sufficient to satisfy the frequency prong of the frequency, regularity, and proximity test. 175 Next, the court had to consider whether the Greens satisfied the proximity requirement. 176 In order to meet the traditional proximity requirement, the Greens would have had to prove that the litter was found in close proximity to where Blu worked. 177 Because when he had been exposed to the litter Blu had not been of age to be employed, the court adapted the test to require the Greens to show that the chicken litter was located in close 168. Id. at , 284 S.W.3d at Green, 373 Ark. at 392, 284 S.W.3d at Id. at , 284 S.W.3d at Id. (noting that George began using 3-Nitro 20 in 1958, Peterson in 1981, Simmons more than thirteen years previous, and Tyson in the early 1970s) Id. at 393, 284 S.W.3d at Id. at , 284 S.W.3d at Green, 373 Ark. at 393, 284 S.W.3d at Id. at 395, 284 S.W.3d at Id. at 394, 284 S.W.3d at See Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, (4th Cir. 1986) (establishing the proximity of the toxic product to the individual s work place as a requirement for the frequency, regularity, and proximity test).