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McElmurray v. Augusta-Richmond County7/11/2005
ich a jury could find that, in those fields from which soil samples were taken, there were unquestionably concentrations of at least some of the metals at issue exceeding state and federal regulatory limits at levels so high as to classify the tested soil as containing hazardous wastes. Specifically, one of the McElmurrays' experts identified findings of cadmium in the soil of various fields at concentrations well in excess of that which has resulted in federal clean-up orders in prior reported cases. Another expert verified that excessive levels of one or more of the metals in the McElmurrays' crop lands had been confirmed by extensive testing.
On the question of whether the excessive level of metals in the soil was caused by the sludge applications, plaintiffs' experts explained that they did not examine commercial fertilizers as a potential source of contamination because there have been no reported findings of damaging levels of heavy metals in commercial fertilizers; and that background concentrations of heavy metals in commercial fertilizers as well as animal mineral supplements have remained at low and consistent levels through the years. Moreover, one of the experts noted that all dairy farms in surrounding areas were purchasing commercial fertilizers and feed supplements from the same suppliers, yet the severe health and production problems associated with the McElmurray farm and one other (that also received the sludge applications) "stand out alone." The conclusion, therefore, was that the only avenue for heavy metal introduction was the sludge applications.
On the question of whether an excessive level of metals in the soil could have been transferred to the crops which were fed to the cows, one of the McElmurrays' experts noted that textbooks dating back almost 50 years have described a condition in cattle termed alkali disease or blind staggers, which is a selenium toxicity resulting from consumption of forages produced from selenium-toxic soils or from soils with proper conditions to accelerate the plant uptake of selenium. This expert further testified that peer-reviewed scientific studies do exist, but for other classes of cattle that are of relatively no use in regard to dairy cattle, and that the absence of such studies concerning dairy cattle is attributable to the high cost of investigating such a complex field of study.
On the question of whether there were excessive concentrations of metals in the McElmurrays' cows' tissues, the McElmurrays assert without contradiction that there is undisputed evidence that, at a minimum, toxically high levels of copper were found in tissue samples taken from their herd. One of their experts identified a report confirming accumulations of zinc, copper, and cadmium in liver and kidney tissues of McElmurray cows in levels high enough to be considered toxic. According to this expert, the findings of metals present in the tissues of other cows were not comparable to those for the McElmurray herd.
On the question of whether an excessive concentration of metals in the cows' tissues could have caused an immune system deficiency, one of the McElmurrays' experts testified that it is his view, and the consensus of pathologists, that toxic levels of metals negatively impact the liver's ability to carry out more than 1,500 biochemical functions. Another expert noted that an unusually high concentration of iron, zinc, manganese, copper, cobalt, molybdenum, and other heavy metals reduces the effectiveness of a key set of bovine enzymes known as metalloenzymes and results in a loss of metabolic function. This expert identified a number of scientific sources corroborating this view. And although none of the necroscopies or histolog
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