Jim Aana; et al. vs. Pioneer Hi-Bred International, Inc.
ORDER DENYING PLAINTIFFS' MOTION TO RECONSIDER ORDER GRANTING MOTION IN LIMINE NO. 1 RE HEALTH EFFECTS (ECF 803 ) re 813 Motion for Reconsideration. Signed by JUDGE LESLIE E. KOBAYASHI on 10/31/2014. (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
INTERNATIONAL, INC., a DuPont
Business and Iowa
Corporation, GAY & ROBINSON,
INC., a Hawaii corporation;
ROBINSON FAMILY PARTNERS, a
registered in Hawaii; and DOE
JEFFREY CASEY, et al., on
behalf themselves and all
others similarly situated,
INTERNATIONAL, INC., et al.,
CIVIL NO. 12-00231 LEK-BMK
CIVIL NO. 12-00665 LEK-BMK
ORDER DENYING PLAINTIFFS’ MOTION TO RECONSIDER ORDER
GRANTING MOTION IN LIMINE NO. 1 RE HEALTH EFFECTS (ECF 803)
On August 26, 2014, this Court issued its Order
Granting Defendants’ Motion Limine No. 1 Re Health Effects
[Dkt. no. 803.1]
Plaintiffs Jim Aana, et
al., on behalf of themselves and all others similarly situated
(collectively, “Plaintiffs”),2 filed a motion for reconsideration
of the 8/26/14 Order (“Motion for Reconsideration”) on
September 9, 2014.
[Dkt. no. 813.]
Defendants Pioneer Hi-Bred
International, Inc.,3 Gay & Robinson, Inc., and Robinson Family
Partners (collectively, “Defendants”) filed their memorandum in
opposition on September 23, 2014, and Plaintiffs filed their
reply on October 7, 2014.
[Dkt. nos. 821, 828.]
Rule LR7.2(e) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”), this
Court has considered Plaintiffs’ Motion for Reconsideration as a
After careful consideration of the motion,
supporting and opposing memoranda, and the relevant legal
authority, Plaintiffs’ Motion for Reconsideration is HEREBY
DENIED for the reasons set forth below.
The 8/26/14 Order is also available at 2014 WL 4244221.
Insofar as the two cases have been consolidated, the Court
will refer to the plaintiffs in both cases collectively as
“Plaintiffs.” The defendants are the same in both cases.
Pioneer Hi-Bred International, Inc., is now known as
DuPont Pioneer. [Third Amended Complaint (Property Related
Claims) (“Third Amended Complaint”), filed 9/6/13 (dkt. no. 331),
at ¶ 5; Pioneer’s Answer to Third Amended Complaint, filed
3/21/14 (dkt. no. 679), at ¶ 5.]
The parties and this Court are familiar with the
factual and procedural background of this case, and this Court
will only repeat the background that is relevant to the instant
Motion for Reconsideration.
On May 23, 2014, Defendants filed their Motion in
Limine No. 1 Re Health Effects (“Motion to Strike”).4
The Motion to Strike sought an order: 1) “precluding
Plaintiffs from calling at trial their retained expert witnesses
Charles M. Benbrook, Michael J. DiBartolomeis, Susan Kegley,
Lorrin Pang, and Camille Sears[;5]” [Motion to Strike at 1;]
2) excluding Plaintiffs’ evidence and the Contested Experts’
opinions regarding the alleged health and environmental effects
of the farming practices at the Waimea Research Center6 (“the
Contested Evidence”); and 3) precluding Plaintiffs from
presenting any arguments regarding alleged health and
On May 28, 2014, this Court issued an entering order
construing Defendants’ motion in limine as a motion to strike.
[Dkt. no. 748.]
This Court will refer to these expert witnesses
collectively as “the Contested Experts.”
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 at ¶ 16.]
In the 8/26/14 Order, this Court:
-concluded that the Third Amended Complaint does not allege any
substantive claims based on either environmental effects or
-concluded that the Contested Evidence is relevant to Plaintiffs’
property claims, but the relevance is limited in light of
the lack any substantive claims based on environmental or
-found that allowing Plaintiffs to pursue, and ultimately
introduce at trial, the Contested Evidence would
unnecessarily expand the scope of the litigation, delay the
resolution of the case, and likely cause jury confusion; and
-excluded the Contested Evidence, pursuant to Fed. R. Evid. 403,
because it found that the delay and potential confusion
outweighed the limited relevance.
2014 WL 2014 WL 4244221, at *3-5.
In the Motion for Reconsideration, Plaintiffs
essentially ask this Court to: 1) reconsider its rulings limiting
their claims; and 2) if this Court does not do so, allow
Plaintiffs to present the portions of the Contested Experts’
reports and opinions that are relevant to Plaintiffs’ other
This Court has described the standard applicable to a
motion for reconsideration as follows:
A motion for reconsideration must
(1) “demonstrate reasons why the court should
reconsider its prior decision” and (2) “must set
forth facts or law of a strongly convincing nature
to induce the court to reverse its prior
decision.” Hele Ku KB, LLC v. BAC Home Loans
Servicing, LP, 873 F. Supp. 2d 1268, 1289 (D. Haw.
2012). The Ninth Circuit has held that
reconsideration is appropriate if (1) the district
court is presented with “newly discovered
evidence,” (2) the district court “committed clear
error or the initial decision was manifestly
unjust,” or (3) “if there is an intervening change
in controlling law.” Nunes v. Ashcroft, 375 F.3d
805, 807 (9th Cir. 2004).
Terry v. Hawaii Air Nat’l Guard, Civil No. 13–00295 LEK–RLP, 2014
WL 5089179, at *1 (D. Hawai`i Oct. 8, 2014) (citation omitted).
Exclusion of Alleged Claims
Plaintiffs first argue that it was procedurally
improper for this Court to dismiss their claims in ruling on a
motion in limine.
First, this Court construed Defendants’ motion
in limine as a motion to strike.
See supra note 4.
although the 8/26/14 Order noted that, if the Third Amended
Complaint did allege substantive claims based on environmental
effects, they would not survive a motion to dismiss, 2014 WL
4244221, at *2, the order ultimately concluded that the Third
Amended Complaint does not contain claims seeking relief based on
health and environmental effects, id. at *3-4.
Thus, this Court
did not dismiss claims that Plaintiffs pled in the Third Amended
Plaintiffs also make the related argument that the
8/26/14 Order was procedurally improper because this Court should
not have excluded broad categories of evidence in ruling on the
Motion to Strike.
The limitation of evidence in light of the
ruling that the Third Amended Complaint does not contain
substantive claims based on health and environmental effects was
within this Court’s discretion to control its docket by limiting
the proceedings in this case to the claims actually contained in
the Third Amended Complaint.
See generally Murray v. Laborers
Union Local No. 324, 55 F.3d 1445, 1452 (9th Cir. 1995)
(“District court judges must have ample discretion to control
This Court therefore DENIES Plaintiffs’ Motion
for Reconsideration as to their argument that the 8/26/14 Order
was procedurally improper.
Plaintiffs also argue that this Court erred in its
analysis of whether they have standing to pursue their
To the extent that Plaintiffs continue to
assert that the Third Amended Complaint alleges substantive
claims based on health and environmental effects and that they
have standing to bring such claims, they are merely reiterating
arguments that this Court previously considered and rejected in
considering the Motion to Strike.
Although Plaintiffs disagree
with this Court’s rulings, their disagreement is not a sufficient
ground for reconsideration of the 8/26/14 Order.
See Morris v.
McHugh, 997 F. Supp. 2d 1144, 1172 (D. Hawai`i 2014) (“Mere
disagreement with a previous order is an insufficient basis for
This Court therefore DENIES Plaintiffs’
Motion for Reconsideration as to Plaintiffs’ argument that the
8/26/14 Order’s standing analysis was erroneous.
Exclusion of Evidence Relevant to Property Claims
Plaintiffs also argue that, even if this Court does not
reconsider its rulings regarding their claims based on health and
environmental effects, this Court must reconsider its rulings
precluding them from introducing the Contested Evidence in
support of their property claims.
Plaintiffs argue that, because
this Court noted that their nuisance claim is the “central”
claim, see 8/26/14 Order at *4, this Court ignored the fact that
health and environmental effects are relevant to claims other
than their nuisance claim.
Plaintiffs’ argument is misplaced.
This Court did not consider the relevance of the
Contested Evidence only as to the nuisance claim.
Plaintiffs’ remaining claims rely on the same alleged injury as
the central nuisance claim - the property damage that has
resulted from the drift of dust and pesticides from the GMO Test
This Court found that the Contested Evidence is relevant
to Plaintiffs’ remaining property claims.
4244221, at *4.
8/26/14 Order, 2014 WL
That relevance, however, is outweighed by:
1) the undue delay of this action in general and the unnecessary
prolonging of the trial by allowing Plaintiffs to pursue and
present - and forcing Defendants to respond to - evidence
regarding complex health and environmental issues; and 2) the
danger of potential jury confusion that would result from the
presentation of such complex, and time consuming, evidence when
there is no substantive claim based on either health or
Plaintiffs’ Motion for Reconsideration
merely disagrees with this Court’s Rule 403 ruling in the 8/26/14
Order, and that disagreement is not sufficient ground for
This Court therefore DENIES Plaintiffs’ Motion
for Reconsideration as to Plaintiffs’ argument that this Court
failed to consider the relevance of health and environmental
effects to claims other than their nuisance claim.
Finally, Plaintiffs argue that, even if this Court does
not reconsider any of its rulings regarding health and
environmental effects, this Court should reconsider its ruling
excluding the Contested Experts’ reports in their entirety.
Plaintiffs argue that the Contested Experts address issues
relevant to their claims for property damage, such as dust drift,
and this Court should allow them to present those portions of the
Contested Experts’ reports.
Plaintiffs’ argument has some logical appeal.
Plaintiffs, however, designated the Contested Experts as
addressing health and environmental effects.
Charles M Benbrook, Ph.D., . . . will testify
as to agronomic systems and pest management
practices and pesticide use, practices and
their effect on environmental, public health
and personal property for Waimea, Kauai..
Michael J. DiBartolomeis, Jr., Ph.D.,
DABT, . . . will testify as to pesticide use
and toxicology implications associated with
pesticide use for Waimea, Kauai.
Susan Kegley, Ph.D., . . . will testify as to
the pesticide transport, drift, and fate for
. . . .
Lorrin Pang, M.D., MPH[,] . . . will testify
as to the public health concern created by
Pioneer’s generation of pesticide drift and
fugitive dust for the Waimea community.
Camille Sears . . . will testify as to the
dispersion of pesticides and their impact for
[Pltfs.’ Designation of Expert Witnesses Pursuant to Fed. R. Civ.
P. 26(a)(2), filed 3/13/14 (dkt. no. 674), at 2-3.]
designation of the scope of the Contested Experts’ testimony is
broader than the claims that are before this Court, and this
Court will not cull through the experts’ extensive reports to
identify the portions that may be relevant to those claims.
Court therefore DENIES the Motion for Reconsideration as to the
admissibility of limited portions of the Contested Experts’
This Court notes that, if Plaintiffs re-designate the
Contested Experts to limit the scope of their testimony to
Plaintiffs’ remaining property claims and to exclude references
to health and environmental effects, Plaintiffs can use the
limited portions of the Contested Experts’ reports.
this Court notes that Plaintiffs’ expert witness disclosure
deadline has passed.
See Third Amended rule 16 Scheduling Order,
filed 5/12/14 (dkt. no. 740), at ¶ 11.a.
Although the parties
have a trial re-setting conference before the magistrate judge on
November 3, 2014, he might not re-open the parties’ expert
disclosure deadlines because, when this Court vacated the
January 13, 2015 trial date, it only vacated the trial-related
[EO, filed 10/20/14 (dkt. no. 842).]
magistrate judge does not re-open the expert disclosure
deadlines, Plaintiffs must either obtain a stipulation from
Defendants or file a motion for an amendment of the scheduling
order, which would require a showing of good cause pursuant to
Fed. R. Civ. P. 16(b)(4).
On the basis of the foregoing, Plaintiffs’ Motion to
Reconsider Order Granting Motion in Limine No. 1 re Health
Effects (ECF 803), filed August 26, 2014, is HEREBY DENIED.
IT IS SO ORDERED.
This Court emphasizes that it expresses no opinion as to
whether the magistrate judge should re-open the expert disclosure
deadlines at the trial re-setting conference. That decision is
within the magistrate judge’s sound discretion.
DATED AT HONOLULU, HAWAII, October 31, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
JIM AANA, ET AL. VS. PIONEER HI-BRED INTERNATIONAL, INC.,
CIVIL 12-00231 LEK-BMK; JEFFREY CASEY, ET AL. VS. PIONEER
INTERNATIONAL, INC., ET AL; CIVIL 12-00655 LEK-BMK; ORDER
PLAINTIFFS’ MOTION TO RECONSIDER ORDER GRANTING MOTION IN
NO. 1 RE HEALTH EFFECTS (ECF 803)
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