Defense Verdict in Chemical Case Affirmed

The Eleventh Circuit last week affirmed a jury verdict for chemical defendant E. I. DuPont de Nemours & Co. in a personal injury claim arising out of the use of the agricultural product Benlate. Ramirez v. E.I. DuPont de Nemours & Co., No. 11-10035 (11th Cir. 12/13/11).
 
The plaintiff/appellant alleged in his complaint that he used Benlate in conjunction with his farming
operations. Ramirez asserted that Benlate was a defective product because it contained an allegedly known carcinogen, atrazine. He also contended that the use of Benlate caused him to contract cancer. The case was tried to a jury which returned a verdict favorable to DuPont.  Specifically, although the jury found that Benlate was a defective product, it did not find that the Benlate was the cause of Ramirez’s cancer.
 
On appeal, Ramirez argued that the verdict in the case was inconsistent because the jury determined that the product was defective, but was not the cause of Ramirez’s injuries. The court agreed with DuPont's argument that defect and causation are separate elements of the strict liability cause of action, and a jury is free to go different directions on each.
 
The record showed that the jury was presented with numerous plausible reasons for determining that Benlate did not cause Ramirez’s cancer. For example, the jury heard that when Ramirez sprayed his crops, he rode inside an enclosed tractor cab, wore protective clothing, including goggles, a mask, a jumpsuit, gloves and boots, and thus had minimal exposure.  The jury also heard evidence demonstrating that Ramirez had numerous risk factors for cancer, including a family history of cancer and a history of smoking cigarettes.
 
Finally, plaintiff attacked DuPont’s expert, Dr. Cohen, contending that the testimony of Dr. Cohen should have been stricken pursuant to Daubert.  The court of appeals disagreed, finding Cohen was one of the world’s leading experts in cancer and chemical causation; clearly, he considered the type of scientific and factual information that experts in his field would reasonably rely upon in opining on causation.
 

Consolidated Benlate Trials Improper

A Florida appeals court recently reaffirmed its prior ruling granting new trials and reversing approximately $20 million in verdicts against defendant DuPont.  See Agrofollajes, S.A., et al., v. E.I. Du Pont De Nemours & Company, Inc., 2010 WL 4870149  (3d DCA, 12/1/10). The court had issued a prior opinion in December, 2009, but it then granted the farmers' motion for a rehearing.

This action involved the mass, consolidated tort cases commenced by twenty-seven Costa Rican growers of leatherleaf ferns against Du Pont, alleging product liability claims for injuries allegedly caused by Benlate, a systemic fungicide that Du Pont manufactured and marketed. Leatherleaf fern is an ornamental crop, a brightly colored and symmetrically shaped fern that florists use to enhance cut flower arrangements. The plaintiffs are commercial growers of leatherleaf fern in Costa Rica who grow the ferns for a worldwide market, providing ferns mostly for Europe and Japan. The complaints alleged that the plaintiffs’ leatherleaf fern plants were damaged by Du Pont
because: (1) the Benlate was cross-contaminated with other chemicals that were manufactured at the same facility, and (2) Benlate DF broke down into DBU, a herbicide-like agent called dibutylurea (DBU), which was toxic and caused the plant damage.

The plaintiffs sought a consolidated trial, representing to the trial court that consolidation would be more efficient because there were "many common issues" between the claims.  Conversely, Du Pont alleged substantial differences in the plaintiffs’ Benlate use, farm management, growing conditions, growing practices, chemical uses, periods in which deformities materialized, plant disease problems experienced, and damage claims. DuPont also proffered different alternative causes for the plant damages at the various ferneries. DuPont proposed that the court schedule either one fernery or one group of ferneries, under common management, as individual
plaintiffs in separate trials. The trial court nevertheless ordered a single, consolidated trial of
the claims by all twenty-seven plaintiffs.  At trial, however, the plaintiffs’ opening statement re-characterized the "common issues." The plaintiffs acknowledged instead that there was only one
material issue that was common to all the plaintiffs, the use of Benlate.  The evidence presented at trial substantiated the many differences that existed among the individual plaintiffs, including use of Benlate, use of other chemicals, and regarding the ferneries.

After an eight-week trial during which the parties introduced considerable evidence that alleged disparate material facts among the twenty-seven individual plaintiffs, the jury deliberated for five days. The jury found against DuPont on negligence and awarded each of the twenty-seven consolidated plaintiffs identical awards. The jury awarded every plaintiff the same percentage, sixty percent, of the past damages claimed.

On appeal, DuPont argued that the trial court denied defendant a fair trial by improperly consolidating plaintiffs’ twenty-seven disparate claims.  In deciding whether to consolidate cases, a Florida  trial court must consider: (1) whether the trial process will be accelerated due to the consolidation; (2) whether unnecessary costs and delays can be avoided by consolidation; (3) whether there is the possibility for inconsistent verdicts; (4) whether consolidation would
eliminate duplicative trials that involve substantially the same core of operative facts and questions of law; and (5) whether consolidation would deprive a party of a substantive right.  The court said that Florida courts have noted that Florida Rule of Civil Procedure 1.270(a) essentially “duplicates” Federal Rule 42(a).

The issues were with items four and five. The record demonstrated that the common issues did not predominate at trial. As plaintiffs’ counsel's candid opening statement remark confirmed, other than Benlate, the plaintiffs “don’t have anything else in common.”  Illustrative of the disparate experiences: fourteen ferneries claimed that the damage appeared immediately while others claimed that the symptoms did not appear for years. The plaintiffs’ ferneries were located in different areas of Costa Rica and were situated at different elevations, resulting in different climates and growing environments for the plants. The ferneries also experienced distinctive problems controlling pests and fungus and were subject to unique issues regarding hurricane damage, flooding, poor sunlight, over-harvesting and inadequate drainage.

DuPont further claimed that consolidation was not proper because it was deprived of a substantive right, as consolidation of the twenty-seven claims resulted in unfair prejudice to it. Unfair prejudice as a result of consolidation is a broadly recognized principle. The Florida Supreme Court in State v. Williams, 453 So. 2d 824, 825 (Fla. 1984), held that “even if consolidation is the ‘most
practical and efficient method of processing’ a case, practicality and efficiency should not outweigh a defendant's right to a fair trial.”  Here, the jurors were asked to recall a vast assortment of unique facts for each of the twenty-seven plaintiffs. The particulars included each fernery’s previous growing history, when the various symptoms manifested, what injuries Benlate allegedly caused, and what damage could be attributed to other causes, as well as numerous other factors that uniquely impacted fern production at each individual fernery. This almost guaranteed juror confusion.  The common awards by the jury, in conjunction with the vast amount of disparate evidence presented at trial, demonstrate that the consolidation of the twenty-seven claims resulted in a hopelessly confused jury.

Importantly, the court also saw that by consolidating the claims, the plaintiffs introduced evidence to the jury that would not have been admissible had the cases been tried separately.  For example, in considering evidence on claims by plaintiffs who did not use Benlate after 1991, the jury was allowed to hear evidence of DuPont’s subsequent remedial measures, even though the measures were inadmissible as to those plaintiffs.

The court of appeals reversed the trial court’s final money judgments and amended final
money judgments rendered upon disposition of the parties’ post-trial motions and
remanded the cases to the trial court for new individual trials and for further proceedings
consistent with the opinion. The trial court was left free to choose to schedule either one fernery or one group of ferneries, under common management, as individual plaintiffs in separate trials.