E-Alert Case Updates

United States Court of Appeals for the District of Columbia Circuit Dismissed Plaintiffs’ Claims for Lack of Article III Standing and Failure to Demonstrate General Causation.

Venancio Aguasanta Arias v. Dyncorp
No. 13-7044 (D.C. Cir., May 30, 2014)
by Sarah M. Grago, Summer Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at http://www.cadc.uscourts.gov/internet/opinions.nsf/
3D456AD12FD74FC885257CE8004F4D90/$file/13-7044-1495244.pdf

In Venancio Aguasanta Arias v. Dyncorp, the United States Court of Appeals for the District of Columbia Circuit affirmed all but one of the prior judgments rendered by the District Court. Appellants consist of a group of Ecuadorian provinces and individual farmers who alleged personal injury and property damage resulting from an anti-drug herbicide spraying operation in Columbia conducted by Appellee, an American company. Said spraying operation, referred to as “Plan Columbia,” called for aerial herbicide spraying to combat illegal harvesting of coca crops by drug cartels. Plaintiffs contend that the spraying operation in Columbia drifted over to Ecuador to their detriment. Following standard protocol for multi-plaintiff toxic tort cases, the lower court required all Plaintiffs to submit a Lone Pine order enumerating any and all alleged injuries caused by the herbicide. Many Plaintiffs failed to submit complete responses; however, even after the lower court granted several extensions; and thus, the court dismissed said Plaintiffs’ claims with prejudice. Next, the court allowed the remaining Plaintiffs to choose a group of test-Plaintiffs on whom the court would focus when evaluating the claims for personal injury and property damage. Ultimately, the lower court dismissed all of Plaintiffs’ claims primarily for lack of Article III standing and failure to prove general causation required for an actionable toxic tort claim. The Court of Appeals affirmed all but one of the lower court’s rulings.

The Court of Appeals engaged in a separate analysis for each class of plaintiffs— the Ecuadorian provinces and the individual farmers. The provinces alleged harm caused by the spraying including: crop damage, costs of investing in infrastructure along the borders of the provinces as the spraying caused health problems that sparked mass migration to the border areas, and loss tax revenue. Although the Court recognized one of these harms to be an injury-in-fact, it affirmed the lower court’s dismissal for lack of standing because the Plaintiff failed to prove that any of the harm alleged was fairly traceable to the Defendant’s conduct. The individual Plaintiffs alleged crop damage and several tort claims including trespass, battery, nuisance, and emotional distress. The Court of Appeals affirmed summary judgment on the crop damages claim as well as the tort claims of trespass and negligent emotional distress, but reversed in regard to all of the other tort claims.

Additionally, the non-test Plaintiffs argued that summary judgment was inappropriate given that the non-test Plaintiffs never consented to be bound by the judgments against the test-Plaintiffs. The Court of Appeals declined to address this claim as the non-test Plaintiffs failed to preserve the issue. Further, the individual Plaintiffs who failed to timely submit Lone Pine Orders argued that the lower court’s dismissal reflected an abuse of discretion. Without much analysis, the Court of Appeals rejected the latter contention as the lower court had provided ample notice and several extensions and therefore, it did not constitute an abuse of discretion.

The court found that the provinces lacked Article III standing. First, many of the harms alleged did not constitute “cognizable harms” or injuries-in-fact and the one outstanding harm that may have been cognizable failed when Plaintiffs could not show it was “fairly traceable” to the Defendant’s conduct. First, the Court noted that lost tax revenue is typically not a recognizable injury-in-fact. Further, the plaintiffs’ expert indicated many other factors contributed to the provinces lost tax revenue and budget deficit. Similarly, the court found the fact that the provinces failed to prove ownership or allege specific crop damage indicative of a lack of an injury-in-fact. In contrast, the court accepted the cost of the infrastructure as a “cognizable harm,” but found that the Plaintiffs failed to demonstrate that the harm was “fairly traceable” to Defendant’s conduct. One example of added infrastructure within the province that informed the court’s analysis involved the addition of new health centers to meet the need of a higher infant mortality rate. While the court recognized this constituted a cognizable harm to the province, it found the required nexus lacking as the Plaintiff did not connect the infant mortality rate to the spraying operation. Although a Defendant in a tort suit need not be the sole cause of the alleged injury, here, the Plaintiff fell short of demonstrating any link between the Defendant’s conduct and the alleged injury.

Although the court addressed each of the plaintiffs’ claims, it centered its analysis primarily on the plaintiff’s failure to prove general causation. It noted that proof of general causation required proof that the substance at issue had the capability of causing the specific harms alleged. Moreover, here, the proof must go to demonstrate that the specific herbicide involved in this case was capable of causing the specific types of injuries of which plaintiffs complained. The court noted that is it not sufficient for expert testimony to convey that, in general, herbicide kills plants. Here, the plaintiffs allege that the herbicide, glyphosate, caused black spots on their crops along with other harms, but defendants rebutted this claim through expert testimony stating that the substance could and would not cause such spotting. District of Columbia law requires parties to provide expert testimony when they are proposing competing theories of injury causation; however, the plaintiffs failed to provide any expert testimony. Without the expert testimony, the plaintiffs could not neither rebut the Defendant’s expert testimony, nor speak to many relevant elements of general causation including the concentration of the herbicide necessary to cause harm as well as the probability that the herbicide would drift to areas outside the spraying operation area. Thus, the court affirmed the lower court’s dismissal of these claims.

Next, the court considered the tort claims alleged by the Plaintiffs. While it agreed with the lower court’s dismissal of the trespass and negligent infliction of emotional distress; it held the district court erred in dismissing the claims for battery, nuisance, and intentional infliction of emotional distress on the basis of lack of expert testimony. The court found that the district court erred in finding such claims required expert testimony because the claims did not need proof of actual damage from the herbicide. Further, the court found that the plaintiffs did not waive these arguments given that they included them in different summary judgment motions. Thus, while a party must present an argument to avoid waiver, the arguments need not be presented together within one filing. Moreover, the court remanded the case for consideration of Plaintiffs’ claims for battery, nuisance, and intentional infliction of emotional distress and affirmed the judgment on all other claims.