Sep 8: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-35458, 10-35611, & 10-35592. Appeal from the United States District Court for the District of Idaho. In 1999 and 2000, the Federal Bureau of Land Management (BLM) applied the herbicide Oust to approximately 70,000 acres of Federal lands in South Central Idaho in an effort to combat a devastating wildfire cycle. Wind carried some of the Oust off the Federal land and onto privately owned farmland nearby. The herbicide caused significant damage to the crops on these farmlands. The Plaintiffs in this case, 134 farmers whose crops suffered as a result of the Oust applications, sued the Federal government and Oust's manufacturer E.I. Du Pont De Nemours and Company (DuPont). The district court adopted a bellwether trial plan and selected four Bellwether Plaintiffs to resolve those issues in the case that do not depend on individual circumstances. The resolution of these issues will bind both the Bellwether and all other Plaintiffs. The district court conducted a 16-week trial involving claims against both DuPont and the government. The jury returned an advisory verdict against the Federal government, and a verdict against DuPont.
As required by the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2402, the district court, upon its own fact-finding and independent review of the record, rendered a verdict against the Federal government. Both the jury and the district court allocated 60% of the fault to DuPont and 40% to the Federal government. The government and DuPont appealed. The Appeals Court indicates it is resolving the government's appeal in this opinion and DuPont's appeal, No. 10-35458, in a memorandum disposition
filed simultaneously with this opinion. The total damages for all four Bellwether Plaintiffs were nearly $17 million.
The government argues that jurisdiction is lacking, that the FTCA bars the "debt-based costs" that the district court awarded to Plaintiffs, and that Plaintiffs did not exhaust their administrative remedies for the crop damage they suffered in 2003 and 2004. The Appeals Court said, "Because we agree with the government that jurisdiction is lacking, we address only this threshold issue,
and we accordingly limit our discussion of the complex facts of this case."
As explained by the court Oust is a commercial name for the chemical compound sulfometuron methyl, which belongs to the sulfonylureas chemical family. Sulfonylureas chemicals inhibit amino lactase synthase and are known for their high potency in low doses as compared to other herbicides. Oust kills or injures crops by affecting a plant's root system, preventing it from taking up water and nutrients from the soil and causing drought-like symptoms. Oust is not labeled for any use on agricultural crops. BLM developed fire rehabilitation plans which included the use of Oust on tens of thousands of acres to kill Cheatgrass, an annual non-native plant that grows up early in the spring, dries out very early in the summer, and provides a continuous bed of fuel for wildfires.
The Appeals Court concluded in part, "BLM argues that we lack subject matter jurisdiction over Plaintiffs' FTCA claims for two reasons. First, BLM argues that Plaintiffs filed their lawsuit one day after the FTCA's statute of limitations had run, forever barring their claims. Second, BLM argues that the discretionary function exception, which provides immunity against FTCA claims even where a federal agency abuses its discretion, so long as the abuse occurs in the performance of non-mandatory duties, bars Plaintiffs' claims. Because we conclude that Plaintiffs' claims are barred by the FTCA statute of limitations, we do not address BLM's discretionary function argument."
In the memorandum disposition filed simultaneously with the opinion regarding DuPont's appeal (i.e. No. 10-35458). The Appeals Court explained that DuPont argues that the district court should have granted its Rule 50(b) motion on Plaintiffs' defective product claim because manufacturers cannot be held liable for manufacturing a product that does well what it is intended to do. However, the Appeals Court said, "Plaintiffs presented ample evidence from which a jury could infer that Oust was 'dangerous to an extent beyond that which would be contemplated by' the government, much less an 'ordinary consumer.' Id. For example, Plaintiffs presented evidence that Oust is susceptible to erosion and unusually longlasting -- both of which the jury could have construed as circumstantial evidence that Oust is unreasonably dangerous."
Among other finding, the district court found that Plaintiffs presented evidence that at most showed DuPont's nonfeasance, which cannot, as a matter of law, support an assumed duty of care claim. It therefore granted DuPont's Rule 50(b) motion as to
that claim. The Appeals Court ruled, "DuPont has not, however, identified any case in which a new trial has been granted in circumstances comparable to those here. We find no merit in DuPont's argument, particularly in light of the fact that it made strategic use of its corporate stewardship policy -- which was part of the assumed duty claim -- during the trial. DuPont must bear the risk of its own litigation strategy. Because DuPont has not cited any relevant authority in support of its new trial argument, the district court did not abuse its discretion when it denied DuPont's motion for a new trial on this ground." The Appeals Court subsequently denied a number of other arguments of DuPont and affirmed the district courts ruling in favor of farmers.
Access the complete opinion (click here). Access the unpublished memorandum disposition (click here). [#Toxics, #Agriculture]
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