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From Products Liability Law Daily, June 2, 2014

Expert testimony not required to prove causation in all claims arising out of herbicide spraying operation in Columbia

By Pamela C. Maloney, J.D.

Although expert testimony was required to prove causation in some of the toxic tort claims brought by Ecuadorian farmers against an American company that conducted an anti-drug herbicide spraying operation in Columbia, such testimony was not required for all claims. Therefore, the U.S. Court of Appeals for the District of Columbia Circuit reversed a district court’s grant of summary judgment and remanded the farmers’ claims for battery, nuisance, and intentional infliction of emotional distress for further consideration (Arias v. DynCorp, May 30, 2014, Silberman, L.).

Background. Beginning in the late 1990s, the United States and Columbia cooperated in a program known as “Plan Columbia,” which is designed to combat Columbia drug cartels including conducting aerial herbicide spraying operations targeting illegal coca crops. DynCorp., an American contractor, conducted these operations using an herbicide called glyphosate. In 2001, a putative class action was filed on behalf of all Ecuadorians who lived within 10 miles of the Columbia border, alleging that the herbicide had drifted across the border and that the planes had actually crossed the border and sprayed in Ecuador. The complaint asserted a wide variety of tort claims for alleged injuries to health, property, and financial interests. After deciding that District of Columbia law applied to the action, the district court dismissed the claims because the plaintiffs failed to provide expert testimony on the effects of glyphosate.

Expert testimony–general requirement. District of Columbia law requires expert testimony when parties offer competing causal explanations for an injury that turns on scientific information. In the case at hand, the plaintiffs claimed, for example, that the aerial spraying caused black spots to appear on their crops; however, DynCorp presented unrebutted expert testimony that glyphosate does not cause spotting. The court concluded that a general causation expert was needed to testify as to: (1) the concentration of herbicide necessary to produce varying effects, (2) the susceptibility of various types of plants, (3) and the potential for the herbicide to drift outside of the immediate vicinity of a spraying operation because these issues were outside the knowledge of the average lay juror.

Expert testimony–specific claims. Despite this finding, the appellate court agreed with the farmers’ assertion that the district court erred in dismissing claims that do not require expert testimony, specifically, claims for trespass, battery, nuisance, and emotional distress. The farmers had argued that none of these claims required proof of actual damage or physical harm from the herbicide and that, therefore, expert testimony was not required. In so finding, the court made it clear that it was not suggesting that, as a matter of law, expert testimony was always unnecessary where these torts are concerned. Instead, the court found that DynCorp failed to present persuasive arguments as to why expert testimony was necessary on these claims in this case. Therefore, the district court erred in dismissing these claims on the basis of a failure to produce expert testimony.

The case number is 13-7044.

Attorneys: Terrence Collingsworth (Conrad & Scherer, LLP) for Venancio Aguasanta Arias. Eric G. Lasker (Hollingsworth LLP) for DynCorp., Dyncorp Aerospace Technology, Dyncorp Technical Services, LLC, and Dyncorp Int’l, LLC.

Companies: DynCorp.; Dyncorp Aerospace Technology; Dyncorp Technical Services, LLC; Dyncorp Int’l, LLC

MainStory: TopStory ExpertEvidenceNews ChemicalNews DistrictofColumbiaNews

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