The U.S. Court of Appeals for the District of Columbia recently affirmed the dismissal of all but three claims brought by individual and government entity plaintiffs against defendant DynCorp based on claims of injury by an anti-drug herbicide spraying operation in Colombia. (Aguasanta Arias v. Dyncorp, --- F.3d. ---, 2014 WL 2219109 (C.A.D.C), May 30, 2014.) The court found that the government entities lacked Article Three standing; that dismissal without prejudice for failing to submit questionnaire responses was within the trial court’s discretion; and that most of the plaintiffs’ claims were properly dismissed for failure to provide expert testimony regarding the effects of the herbicide glyphosate.
The plaintiffs—both individuals and a number of Ecuadorian provinces—filed a class action in 2001 on behalf of all Ecuadorians residing within ten miles of the Colombia border, alleging that the anti-coca herbicide glyphosate had caused damaged to their health, property and financial interests. Defendant DynCorp was alleged to have conducted the spraying operations.
The Court of Appeals held that the Ecuadorian provinces had failed to show Article Three standing under the Constitution by proving that they had a cognizable injury or that DynCorp caused their injuries. The court stated that lost tax revenue is generally not cognizable as an injury for purposes of standing. Further, while recognizing that a defendant need not be the sole cause of a plaintiff’s injuries, the court found that the provinces’ claimed economic loss was not “fairly traceable” to DynCorp. For example, although increased expenditures on healthcare facilities would constitute an injury-in-fact for purposes of standing, the provinces did not even claim that high infant mortality and a number of diseases were caused by the spraying.
To speed up the glacially moving case, in 2007 the district court required the plaintiffs to submit answers to a questionnaire regarding their injuries. After extending the deadline for submitting completed questionnaires several times, the court finally dismissed with prejudice the claims of all plaintiffs who had failed to do. The Court of Appeals found that, under the circumstances, the district court had not abused its discretion in granting this harsh sanction.
The district court dismissed all of the remaining individual plaintiffs’ claims for failure to submit expert testimony supporting “general causation”—that is, that glyphosate could cause the types of injuries alleged by the plaintiffs (without addressing the “specific causation” issue as to any particular plaintiff). On appeal, the Court of Appeals found that expert evidence was necessary for the plaintiffs’ claim for negligent infliction of emotional distress, in order to prove that plaintiffs were actually in the zone of physical danger. However, the court also found that expert testimony was not necessary to prove the plaintiffs’ claims for battery (harmful or offensive touching), nuisance (unreasonable interference with use of land) and intentional infliction of emotional distress (outrageous conduct causing severe emotional distress). The court found that, under the circumstances, these claims could be decided by average lay jurors without the assistance of expert testimony.
The Court of Appeals’ ruling in this case resolves almost every claim in favor of DynCorp even though three claims were remanded for further consideration. The ruling represents a significant victory for the defendant in a large case originally filed in 2001, involving numerous plaintiffs and substantial trial costs and potential damages.