Plaintiffs rest; judge won't allow punitive damages

Last updated Monday, September 18, 2006 9:33 PM CDT in News

By Ron Wood
The Morning News

"When I figured out I'd have to have a bone-marrow transplant, it got a little touchy. I was really just praying I'd get that match," Green said. "I knew it was a long shot. I just wanted to be normal."

His prayers were answered. Then came radiation and chemotherapy to destroy his immune system and prepare him for the transplant.

"For me, the radiation was by far the worst part," Green said. "When I wasn't sleeping, I was throwing up."

Green told jurors that while being treated himself, he watched as Holly Green, another Prairie Grove child who died of leukemia, was taken off life support. The families are not related but met at the Seattle cancer hospital where both were being treated.

"I held her brother while they unplugged her," Green said.

Both Blakemore and Holly Green had been in remission before their leukemia returned and proved fatal, Blu Green said. Blakemore had also had a marrow transplant.

"I kept thinking 'I'm in remission, what's next?'"

The transplant was successful, but Green then had to battle his body's attempts to reject the transplant, pneumonia and fungal infections in his lungs. Green maintains that the fungal infection was caused by fungi in chicken litter that he was exposed to upon returning home. That meant another trip to Seattle, another hospitalization and experimental drugs.

"I just had to be really careful because I didn't have any immune system," Green said. "If there was somebody sick, I had to get somewhere else."

Being home was nice, Green said. But his friends were two blocks away and he couldn't join them for months. In addition, he was still on medication and looked and felt awful.

Green's leukemia has not returned. He was able to return to high school, star on the basketball team and excel in the classroom. He is now a senior at the University of Arkansas, has a girlfriend and hopes to follow his father as a basketball coach.

"You know, life is good today," Green said. "I don't take it for granted, but it's good. I'm thankful for every day that I get."

But Green will be at increased risk of cancer and graft-versus-host disease the rest of his life, his body is scarred and he faces medical testing for the rest of his life.

"It's kind of like being shot at and having to wait two weeks to see if you're hit," Green said. "The anxiety level's pretty high."

The radiation left him with cataracts and skin problems and he is still sterile but does have sperm banked for the future.

"I want to have kids and I don't know if I'll be able to do that or not," Green said.

At the end of the plaintiffs' case, Alpharma attorneys asked Washington County Circuit Judge Kim Smith to dismiss the case, saying the Greens failed to prove their case. Smith declined to dismiss the suit but said he may consider dismissing more claims at the end of the defense's case.

They also argued that Green could have been exposed to arsenic in chicken litter before Alpharma bought the rights to Roxarsone and 3-Nitro in 1991 and that the Greens can't prove that exposure after 1991 was responsible for the leukemia. They also said there's been no causal link between arsenic and the rare type of leukemia Green suffered. Finally, they argued that Green cannot prove he was exposed to any specific amount of arsenic.

In a blow to the plaintiffs, Smith did rule that the Greens cannot seek punitive damages because there was no indication that Alpharma acted intentionally to harm Green or with wanton disregard for the public's safety. Smith said it was clear Alpharma followed the federal regulatory process.

Lawyers for the Greens argued that Alpharma was marketing an unreasonably dangerous product because it contained arsenic, which they argue is a human carcinogen. They also said Alpharma didn't warn the public about the risk of exposure.

Fraud and outrage claims were voluntarily dropped.

Alpharma lawyers wasted no time going into attack mode Monday afternoon. They went after what they consider embellishments that have popped up in testimony such as the frequency of spreading events near the school and an allegation that air filters were changed at the school to foil testing for arsenic by a company hired by the Green's lawyers.

They also called witnesses to dispute stories that clouds of dust engulfed the schools, that dust and feathers in the buildings were a problem and that athletic practices and recesses and other outdoor activities were sometimes canceled because of the spreading of chicken litter.

They also said they did not remember any complaints being lodged with school officials about the spreading.

Former superintendent Tom Louks, former principal Frank Dalmut, former custodian Virgil Laproe and Becky Glass, a former teacher and sponsor of the cheerleading squad, all said spreading on fields near the school was done primarily in the spring and fall, less frequently at other times of the year, and not once or twice per week as some witnesses had said.

Defense witnesses also disputed testimony from Green's mother that the litter smelled like garlic, which, according to an expert witness last week is an indication it contained arsenic. They have also gone after Beth Green and Blu for saying he had marks on his nails indicative of arsenic exposure, arguing that no one had mentioned "Meese lines" during the depositions or interrogatories exchanged before trial.

They also hammered on the failure of the plaintiffs to ever test Green specifically for arsenic contamination.

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