Originally created 09/27/03

City argues sewage award should be pulled



A jury's $550,000 award to a Burke County family who claimed their cattle and pastures were poisoned by the city of Augusta's sewage sludge should be set aside, the city's lawyers reiterated Friday.

"Obviously, your honor, there is nothing wrong with the land," said Jim Ellison, who defended the city in a two-week civil trial that concluded June 24, when jurors sided with the Boyce family.

During a hearing before Judge Carlisle Overstreet, Mr. Ellison contended that the Boyce family's claims were barred by the four-year statute of limitations; that the plaintiffs failed to prove their case; and that common cow diseases - not sludge - were responsible for the high cattle mortality.

The Boyces' attorney, Ed Hallman, countered that many expert witnesses testified that sludge from Augusta's Messerly Wastewater Plant, applied as fertilizer to their pastures, contaminated land and killed cows.

Testimony to the contrary, he added, came mostly from Mr. Ellison - and not the city's defense witnesses.

"What we were left with, once again, is the testimony of defense counsel - which is an age-old trick," Mr. Hallman told Judge Overstreet.

Mr. Hallman also disputed Mr. Ellison's claim that the evidence failed to prove that improperly treated sludge with toxic levels of heavy metals caused excessive mortality in the Boyce dairy herd.

"It's like saying, if I rob a bank and spend the money, but you can't find those exact bills, then you can't convict me of bank robbery," he said.

The jury's $550,000 award to the Boyce family fell far short of the $12.5 million initially sought by the plaintiffs. Judge Overstreet asked Mr. Hallman for an opinion on how jurors came up with that number.

Jurors, Mr. Hallman speculated, were divided on whether to award a large amount or a small amount, and the $550,000 likely was a compromise.

"Obviously, it's not the amount of money we hoped for, but every bit helps," he said.

Judge Overstreet said he will take the arguments of both sides under advisement and make a decision later.

The city also faces a similar lawsuit from another farm that received Augusta's sewage sludge. R.A. McElmurray & Sons of Hephzibah filed their lawsuit in February 2001, a week after the Boyces' lawsuit was filed. That case has not been tried.

Reach Robert Pavey at (706) 868-1222, ext. 119, or rob.pavey@augustachronicle.com.