Jim Aana; et al. vs. Pioneer Hi-Bred International, Inc.

Filing 803

ORDER GRANTING DEFENDANTS' MOTION IN LIMINE NO. 1 RE HEALTH EFFECTS re 744 MOTION in Limine [Defendants' Motion in Limine No. 1 Re Health Effects] filed by Pioneer Hi-Bred International, Inc., Robinson Family Partners, Gay & Robinson, Inc.. Signed by JUDGE LESLIE E. KOBAYASHI on 08/26/2014. -- Defendants' Motion in Limine No. 1 Re Health Effects, filed May 23, 2014, is HEREBY GRANTED. This Court STRIKES Plaintiffs' expert w itnesses Charles M. Benbrook, Michael J. DiBartolomeis, Susan Kegley,Lorrin Pang, and Camille Sears. Further, in light of this Order, Plaintiffs are prohibited from presenting evidence or argument at trial regarding alleged health and environmental e ffects. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JIM AANA, et al., on behalf
of themselves and all others
similarly situated,
Plaintiffs,
vs.
PIONEER HI-BRED
INTERNATIONAL, INC., a DuPont
Business and Iowa
Corporation, GAY & ROBINSON,
INC., a Hawaii corporation;
ROBINSON FAMILY PARTNERS, a
general partnership
registered in Hawaii; and DOE
DEFENDANTS 1-10,
Defendants.
_____________________________
JEFFREY CASEY, et al., on
behalf themselves and all
others similarly situated,
Plaintiffs,
vs.
PIONEER HI-BRED
INTERNATIONAL, INC., et al.,
Defendants.
_____________________________

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CIVIL NO. 12-00231 LEK-BMK
CIVIL NO. 12-00665 LEK-BMK

ORDER GRANTING DEFENDANTS’
MOTION IN LIMINE NO. 1 RE HEALTH EFFECTS
On May 23, 2014, Defendants Pioneer Hi-Bred
International, Inc. (“Pioneer”), Gay & Robinson, Inc., and

Robinson Family Partners1 (all collectively “Defendants”) filed
their Motion in Limine No. 1 Re Health Effects (“Motion”).
no. 744.]

[Dkt.

Plaintiffs Jim Aana, et al., on behalf of themselves

and all others similarly situated (collectively, “Plaintiffs”),2
filed their memorandum in opposition on June 24, 2014, and
Defendants filed their reply on July 8, 2014.
774.]

[Dkt. nos. 766,

The Court finds this matter suitable for disposition

without a hearing pursuant to Rule LR7.2(d) of the Local Rules of
Practice of the United States District Court for the District of
Hawai`i (“Local Rules”).

The Court issued its summary ruling

granting the Motion on July 31, 2014.

[Dkt. no. 781.]

The

instant Order is this Court’s decision on the Motion, and this
Order supersedes the July 31, 2014 summary ruling.
After careful consideration of the Motion, supporting
and opposing memoranda, and the relevant legal authority,
Defendants’ Motion is HEREBY GRANTED for the reasons set forth
below.
BACKGROUND
The relevant factual and procedural background of this
case is set forth in this Court’s: August 9, 2013 Order Granting

1

This Court will refer to Defendants Gay & Robinson, Inc.
and Robinson Family Partners collectively as “the Robinson
Defendants.”
2

Insofar as the two cases have been consolidated, this
Court will refer to the plaintiffs in both cases collectively as
“Plaintiffs.”
2

in Part and Denying in Part Defendants Gay & Robinson, Inc. and
Robinson Family Partners’ Motion to Dismiss Plaintiffs’ Second
Amended Complaint Under Fed. R. Civ. P. 12(b)(6); and Granting in
Part and Denying Part Defendants Gay & Robinson, Inc., Robinson
Family Partners, and Pioneer Hi-Bred International, Inc.’s Motion
to Dismiss Plaintiffs’ Second Amended Complaint (“8/9/13 Order”);
and February 27, 2014 Order Granting in Part and Denying in Part
Defendants’ Motion to Dismiss Third Amended Complaint (Rule
12(b)(6)) (“2/27/14 Order”).

[Dkt. nos. 224, 608.3]

In the instant Motion, Defendants seek an order
“precluding Plaintiffs from calling at trial their retained
expert witnesses Charles M. Benbrook, Michael J. DiBartolomeis,
Susan Kegley, Lorrin Pang, and Camille Sears,[4] and excluding
any other evidence or argument regarding health and environmental
issues.”

[Motion at 1.]

Defendants contend that such evidence

is irrelevant and, even if the evidence has some relevance, this
Court should exclude the evidence pursuant to Fed. R. Evid. 403.
[Mem. in Supp. of Motion at 11-15.]

On May 28, 2014, this Court

issued an entering order construing the Motion as a motion to
strike instead of a motion in limine.

[Dkt. no. 748.]

3

The 8/9/13 Order is also available at 965 F. Supp. 2d
1157, and the 2/27/14 Order is available at 2014 WL 806224.
4

This Court will refer to these expert witnesses
collectively as “the Contested Experts.”
3

DISCUSSION
I.

Whether Plaintiffs Can Pursue Claims
for Health and Environmental Effects
Defendants ask this Court to strike Plaintiffs’

evidence and the Contested Experts’ opinions regarding the
alleged health and environmental effects of the farming practices
at the Waimea Research Center5 (“the Contested Evidence”) because
Plaintiffs only pled claims for property damage.
Plaintiffs’ operative pleading is titled “Third Amended
Complaint (Property Related Claims)” (“Third Amended Complaint”).
[Filed 9/6/13 (dkt. no. 331).]

Further, Plaintiffs expressly

state that the Third Amended Complaint “does not allege
individual personal injuries on behalf of Waimea Residents,[6]
which will be brought, if any, by separate complaint.”

[Id. at

pg. 24 n.37 (emphasis in original).]
The “Factual Allegations” section of the Third Amended
Complaint includes allegations about the health and environmental
impacts of the dust and pesticide drift from the GMO Test Fields:
35)

Pesticides and fugitive dust from the GMO
Test Fields are recognized pollutants that
present known and unknown risks to human
health and the environment associated with

5

Plaintiffs refer to “[a]ll fields leased by Pioneer from
the Robinson [Defendants] related to the Waimea Research Center”
as “the GMO Test Fields.” [Third Amended Complaint (Property
Related Claims), filed 9/6/13 (dkt. no. 331), at ¶ 16.]
6

The Third Amended Complaint refers to Plaintiffs as the
“Waimea Residents.” [Third Amended Complaint at ¶ 4.]
4

acute, sub-chronic, and chronic exposure.
36)

For example, Pioneer uses several restricteduse pesticides on its GMO [Test] Fields.
Restricted use pesticides are pesticides that
may cause unreasonably adverse effects to
human health and the environment even when
used as directed by the product labeling.

37)

A single exposure to the pesticides (or
combination of pesticides) used by Pioneer
can adversely impact human health. Likewise,
many of the delayed effects of exposure to
the individual pesticides and combinations of
pesticides used by Pioneer are unknown.

38)

Pesticides used by Pioneer also pose
substantial risks to the environment of
Waimea.

39)

Accordingly, the inherent risks associated
with Pioneer’s use of pesticides on the GMO
Test Fields cannot be eliminated.

40)

Because of the inherent risks
exposure and the potential of
migration, Pioneer has a duty
pesticides in a way that will
Residents directly or through

for pesticide
pesticide
to not apply
contact Waimea
spray drift.

[Id. at ¶¶ 35-40 (footnote omitted).]
The Third Amended Complaint also refers to health and
environmental risks in its statement of the claims.

For example,

Count I (negligence - failure to use due care) alleges that
Defendants “negligently failed to prevent the migration of
excessive fugitive dust, erosion, and dangerous pesticides into
the Waimea community and environment,” [id. at ¶ 132,] and that
Defendants’ “negligent failure to use due care caused the routine
migration of excessive fugitive dust and pesticides into Waimea

5

Residents’ homes, which has resulted in . . . an increase in
health risks for the Waimea community” [id. at ¶ 138].

Count II

(negligence - failure to investigate and warn) alleges that “the
routine migration of pesticides into Waimea Residents’
homes . . . has resulted in regular chemical odors in the
community [and] an increase in health risks for the Waimea
community . . . .”

[Id. at ¶ 146.]

Count IV (trespass) alleges

that the dust and chemical drift from the GMO Test Fields have
caused “an increase in health risks to the Waimea Community,”
[id. at ¶ 162,] and Count V (nuisance) includes a similar
allegation [id. at ¶ 169].
First, this Court notes that Plaintiffs’ allegations
about environmental effects are very general in nature.

Even if

Plaintiffs did intend to allege substantive claims based on
environmental effects, the claims would not survive a motion to
dismiss.

Plaintiffs’ general allegations of environmental

impacts are not sufficient to plead a plausible basis for their
standing to pursue substantive claims based on environmental
effects.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To

survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 554, 570, 127 S. Ct. 1955 (2007))).

6

“‘[T]he irreducible constitutional minimum of standing
contains three elements’: (1) injury in fact, (2) causation, and
(3) redressability.”

Ass’n of Pub. Agency Customers v.

Bonneville Power Admin., 733 F.3d 939, 970 (9th Cir. 2013)
(alteration in Bonneville Power) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130, 119 L. Ed. 2d
351 (1992)).
An individual bringing a substantive claim
related to environmental harms may establish an
injury in fact by showing “a connection to the
area of concern sufficient to make credible the
connection that the person’s life will be less
enjoyable — that he or she really has or will
suffer in his or her degree of aesthetic or
recreational satisfaction — if the area in
question remains or becomes environmentally
degraded.” Ecological Rights Found. v. Pac.
Lumber Co., 230 F.3d 1141, 1149 (9th Cir.
2000). . . .
W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 484 (9th
Cir. 2011).

Plaintiffs did not plead sufficient allegations

that, if proven, would establish the type of injury in fact that
is required for substantive claims based on environmental
effects.

This Court therefore concludes that the Third Amended

Complaint does not allege any substantive claim based on
environmental effects.
In determining whether the Third Amended Complaint
alleges any substantive claim based on health effects, this Court
reads Plaintiffs’ allegations about health effects in the context
of the entire complaint.

As with the allegations about
7

environmental effects, Plaintiffs’ allegations about health
effects are general in nature.

In contrast, the title of the

complaint and footnote 37 expressly limit the action to propertyrelated claims.

Reading the Third Amended Complaint as a whole,

the central claim is Plaintiffs’ nuisance claim.

This district

court has stated:
A “nuisance” is defined as:
. . . that which unlawfully annoys or does
damage to another, anything that works hurt,
inconvenience, or damage, anything which
annoys or disturbs one in the free use,
possession, or enjoyment of his property or
which renders its ordinary use or physical
occupation uncomfortable, and anything
wrongfully done or permitted which injures or
annoys another in the enjoyment of his legal
rights.
Littleton v. State, 656 P.2d 1336, 1344 (Haw.
1982) (quoting 58 Am. Jur. 2d Nuisances § 1 at 555
(1971)).
. . . A “nuisance” is an activity or
condition that actively interferes with an
individual’s right to use and enjoy land. See
Western Sunview Properties, LLC v. Federman, 338
F. Supp. 2d 1106, 1116 (D. Haw. 2004) (A nuisance
“has been defined as ‘a nontrespassory invasion of
another's interest in the private use and
enjoyment of his land.’”) (quoting Layton v.
Yankee Caithness Joint Venture, 774 F. Supp. 576,
577 (D. Nev. 1991). The “central idea of nuisance
is the unreasonable invasion” of a property
interest. Lussier v. San Lorenzo Valley Water
Dist., 206 Cal. App. 3d 92, 100 (Cal. Ct. App.
1988). A typical example of a nuisance is smoke
or fumes that invade an individual’s property from
another location. E.g., Olden [v.] LaFarge Corp.,
203 F.R.D. 254 (E.D. Mich. 2001). Other common
examples include noxious odors and unreasonably
loud noise. E.g., Crea v. Crea, 16 P.3d 922 (Id.
8

2000) (odor from hog farm could be a nuisance);
Schild v. Rubin, 232 Cal. App.3d 755 (Cal. Ct.
App. 1991) (excessive and inappropriate noise may
constitute nuisance).
Mitchell v. United States, Civ. No. 11–00088 HG–KSC, 2011 WL
4048986, at *7 (D. Hawai`i Sept. 12, 2011) (some alterations in
Mitchell).
Plaintiffs’ central nuisance claim, read together with
the title and footnote 37, clearly focused the action on property
damage.

This Court has stated:
Although Federal Rule of Civil Procedure
8(a)(2) requires only that a complaint include “a
short and plain statement of the claim showing
that the pleader is entitled to relief[,]” such a
statement must sufficiently put the defendants on
fair notice of the claims asserted and the grounds
on which they rest. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167
L. Ed. 2d 929 (2007) (citation omitted). . . .

Brewer Envtl. Indus., LLC v. Matson Terminals, Inc., Civil No.
10–00221 LEK–KSC, 2011 WL 1637323, at *16 (D. Hawai`i Apr. 28,
2011) (some alterations in Brewer Envtl.).

In the instant case,

the allegations of the Third Amended Complaint did not put
Defendants on notice that Plaintiffs were pursuing substantive
claims based on health effects.

This Court therefore concludes

that the Third Amended Complaint does not allege any substantive
claim based on health effects.
II.

Relevance of the Contested Evidence
This Court next turns to the issue of whether

Plaintiffs’ allegations about health and environmental effects
9

are relevant as support for Plaintiffs’ property claims.
Fed. R. Evid. 401 states:
Evidence is relevant if:
(a) it has any tendency to make a fact more
or less probable than it would be without the
evidence; and
(b) the fact is of consequence in determining
the action.
If evidence is not relevant, it is not admissible.

Fed. R. Evid.

402.
The crux of Plaintiffs’ property claims is that
Defendants’ conduct has caused “a substantial reduction in the
value and beneficial use and enjoyment of Waimea Residents’ homes
and community.”

See, e.g., Third Amended Complaint at ¶ 138.

If

Plaintiffs are able to present evidence at trial which
establishes that Defendants’ conduct has also affected the
environment in general and resulted in increased health risks, it
would support their claim that Defendants’ conduct has reduced
Plaintiffs’ use and enjoyment of their property.

This Court

therefore concludes that the Contested Evidence is relevant to
Plaintiffs’ property claims, but it emphasizes that this
relevance is limited because the action does not involve
substantive claims based on health and environmental effects.
III. Fed. R. Evid. 403 Analysis
Defendants next argue that, even if the Contested
Evidence has some relevance to the instant case, this Court
10

should exclude the evidence pursuant to Fed. R. Evid. 403.

Rule

403 states: “The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.”

This Court agrees with

Defendants that allowing Plaintiffs to present evidence of
alleged health and environmental effects, when there are no
substantive claims for health and environmental effects, would
exponentially increase the complexity of the pre-trial litigation
process and the ultimate length of trial.
The magistrate judge has not allowed Plaintiffs to
conduct discovery related to alleged environmental and health
effects because he has interpreted Plaintiffs’ claims in the same
manner as this Court has.

For example,

THE COURT: . . . [T]he final area is this
inquiry regarding pesticides. . . . [O]n this
point I kind of agree with the defense that, you
know, to get into all of the health related
issues, the assessment issues that you’re
interested in, you know, that just doesn’t relate
to the claims for property damage here. That
really smacks more of a connection to personal
injury issues or if there were some water -- in
other words, it sounds to me like exactly what I
was dealing with, with the Central Oahu pineapple
field water contamination, cancer causing health
hazard case, not the case we have here.
So if it relates solely to those questions
concerning the types of pesticides that were being
used, and I gather you know pretty much, you know,
what they are and the like, I mean I certainly
11

would permit that, but not all of it -- not all of
this health-related assessment issue stuff. . . .
[Trans. of 10/24/13 Hrg. on Defs.’ motions for protective order,
filed 10/31/13 (dkt. no. 353), at 45.]

Thus, allowing Plaintiffs

to pursue, and ultimately present, evidence regarding alleged
health and environmental effects would expand the scope of the
litigation and delay the resolution of this case.
Further, allowing evidence at trial of health and
environmental effects when there is no substantive claim based on
health and environmental effects would likely result in possible
jury confusion.

In light of the limited relevance of this

evidence, the Court finds that the delay and potential confusion
outweigh the relevance.

This Court therefore GRANTS Defendants’

Motion.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion in
Limine No. 1 Re Health Effects, filed May 23, 2014, is HEREBY
GRANTED.

This Court STRIKES Plaintiffs’ expert witnesses

Charles M. Benbrook, Michael J. DiBartolomeis, Susan Kegley,
Lorrin Pang, and Camille Sears.

Further, in light of this Order,

Plaintiffs are prohibited from presenting evidence or argument at
trial regarding alleged health and environmental effects.
IT IS SO ORDERED.

12

DATED AT HONOLULU, HAWAII, August 26, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

JIM AANA, ET AL. VS. PIONEER HI-BRED INTERNATIONAL, INC., ET AL.;
CIVIL 12-00231 LEK-BMK; JEFFREY CASEY, ET AL. VS. PIONEER HI-BRED
INTERNATIONAL, INC., ET AL; CIVIL 12-00655 LEK-BMK; ORDER
GRANTING DEFENDANTS’ MOTION IN LIMINE NO. 1 RE HEALTH EFFECTS

13