E-Alert Case Updates
Ecuadorians Sprayed with Pesticides by American Corporation Permitted to Proceed to Trial on Battery and Emotional Distress Claims
Venancio Aguasanta Arias, et al. v. DynCorp, et al.
In a recent opinion, the United States District Court for the District of Columbia held that the battery and intentional infliction of emotional distress (IIED) claims of Ecuadorian citizens who had been sprayed with pesticides by an American corporation could proceed to trial.
Since the late 1990s, the United States has coordinated with Colombia to combat the Colombian drug trade. In the furtherance of that objective, the United States hired Defendant DynCorp, to spray aerial fumigants, including glyphosate, over drug farms in Colombia. In 2001, Plaintiffs filed a putative class action on behalf of all Ecuadorians living within ten (10) miles of the Colombian border, arguing that the glyphosate sprayed by Defendant was harmful to humans, animals, and plants in Ecudaor. Plaintiffs contended that the glyphosate drifted over the border from Colombia and that Defendant’s planes crossed the border and sprayed them from above. Plaintiffs later dropped their class action demand, and due to the enormous number of Plaintiffs, their claims were consolidated.
Eventually, the District Court proposed that the parties pursue the claims of twenty (20) Plaintiffs in a “test case” framework in order to facilitate a global resolution. The parties agreed, and discovery proceeded as to the claims of those twenty (20) Plaintiffs. Ultimately, Defendants were granted summary judgment because the test case Plaintiffs failed to substantiate their claims with expert testimony. The Court of Appeals for the District of Columbia Circuit subsequently affirmed in part the District Court’s decision, but concluded that Plaintiffs’ claims for battery, intentional infliction of emotional distress (IIED), and nuisance did not require expert testimony. Accordingly, the case was remanded to the District Court to consider those three claims. Defendants moved for summary judgment.
Judge Ellen Segal Huvelle, writing for the Court, granted, in part, and denied, in part, Defendants’ motion. Initially, the Court rejected Defendants’ arguments that the adjudication of the test case Plaintiffs’ claims bound the remaining 1,998 non-test case Plaintiffs. The Court concluded that the test case framework was established only to “adjudicate the factual sufficiency of a group of test claims prior to subjecting thousands of other claims to discovery, summary judgment briefing, and trial.” The purpose was not, as Defendants contended, to bind all Plaintiffs based upon the claims of the test case Plaintiffs. Instead, it was designed to assist in settlement negotiations as to the claims of the remaining Plaintiffs. Furthermore, to bind the claims of the other Plaintiffs based upon procedural issues in the test cases and the damages adduced in the test case Plaintiffs’ cases “would strain the limits of due process.”
The Court then proceeded to analyze the sufficiency of Plaintiff’s claims. With regard to the claim for battery, the Court stated that a battery occurs when an individual acts with “substantial certainty” that his or her actions will result in harmful or offensive bodily contact with another. In a heavily redacted analysis, the Court noted that DynCorp admitted that it flew missions over Ecuador, and that its pilots could see people below their planes while spraying glyphosate. There was thus sufficient evidence to show that DynCorp was “substantially certain” that the glyphosate came into contact with individuals in Ecuador. Moreover, a reasonable juror could find that being sprayed with a chemical constituted “harmful or offensive” contact. Nevertheless, approximately half of the test case Plaintiffs had failed to adduce any evidence that they had actually come into bodily contact with glyphosate, and their claims for battery therefore failed. The claims of the remaining Plaintiffs, however, could proceed to trial.
As to Plaintiffs’ claim for IIED, the Court concluded that DynCorp’s actions could reasonably be considered reckless. DynCorp was made aware that it was improperly making spray flights over Ecuador and failed to desist that conduct for approximately a decade. In fact, it appears that DynCorp employees mocked the concerns of Ecuadorians, and consciously chose not to address those concerns. Furthermore, DynCorp’s actions could be considered outrageous, as it: (1) willfully refused to address problems with pilots who failed to avoid spraying into Ecuador; (2) repeatedly continued to conduct flights over poor, subsistence farming communities in Ecuador for years after it was told to stop doing so; and (3) disobeyed clear reprimands from the Department of State to cease spraying in Ecuador. Only five (5) of the test case Plaintiffs, however, had alleged that they suffered severe emotional distress as a result of the flights. Although the IIED claims of those Plaintiffs could continue, the claims of the remaining test case Plaintiffs failed to withstand summary judgment.
Finally, as to Plaintiffs’ nuisance claim, the Court noted that Plaintiffs were required to establish that the alleged nuisance had “some degree of permanence” or repetition so as to constitute an “unreasonable use.” Thus, in another case, the District of Columbia Court of Appeals held that demonstrations held five (5) times at the plaintiff’s home and eight (8) times at his office over a period of several weeks was too sporadic to be a nuisance. Here, Plaintiffs complained of isolated flights, ranging from a single flight to “a handful” of flights, over a period of several years. Because this conduct was so sporadic, the Court granted Defendants’ motion for summary judgment as to Plaintiffs’ nuisance claims.
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