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

Filing 878

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION IN LIMINE NO. 2; AND DENYING PLAINTIFFS' MOTION IN LIMINE NO. 1 AND MOTION IN LIMINE NO. 2 re 831 Motion in Limine; re 839 Motion in Limine; re 840 Motion in Limine. Signed by JUDGE LESLIE E. KOBAYASHI on 01/13/2015. Pioneer's Valenzuela Motion is HEREBY GRANTED IN PART AND DENIED IN PART,Plaintiffs' Loudat Motion is HEREBY DENIED, Plaintiffs' Rei nhardt Motion is HEREBY DENIED (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 IN PART AND DENYING IN PART DEFENDANT’S
MOTION IN LIMINE NO. 2; AND DENYING PLAINTIFFS’
MOTION IN LIMINE NO. 1 AND MOTION IN LIMINE NO. 2
On October 15, 2014: Defendant Pioneer Hi-Bred
International, Inc. (“Pioneer”) filed its Motion in Limine No. 2

to Exclude Opinion Testimony of Hector Valenzuela Related to
Alleged Failure to Follow GAAMP with Respect to Pioneer’s Use of
Agricultural Chemicals (“Valenzuela Motion”);1 [dkt. no. 831;]
Plaintiffs Jim Aana, et al., on behalf of themselves and all
others similarly situated (collectively, “Plaintiffs”),2 filed
their Motion in Limine No. 1 to Exclude Expert Testimony of
Thomas Loudat (“Loudat Motion”); [dkt. no. 839;] and Plaintiffs
filed their Motion in Limine No. 2 to Exclude Certain Expert
Testimony of James Reinhardt (“Reinhardt Motion”) [dkt. no. 840].
On December 15, 2014: Plaintiffs filed their memorandum in
opposition to the Valenzuela Motion (“Valenzuela Opposition”);
[dkt. no. 862;] and Pioneer filed its memoranda in opposition to
the Loudat Motion (“Loudat Opposition”) and the Reinhardt Motion
(“Reinhardt Opposition”) [dkt. nos. 859, 861].

On December 21,

2014: Pioneer filed its reply in support of the Valenzuela Motion

1

Defendants Gay & Robinson, Inc., and Robinson Family
Partners (collectively, “the Robinson Defendants”) and Pioneer
(all collectively, “Defendants”) filed the Valenzuela Motion, but
this Court has granted summary judgment in favor of the Robinson
Defendants as to all of the remaining claims against them, and
they are no longer parties in this case. See Order Granting in
Part and Denying in Part Defendants’ Motion for Partial Summary
Judgment as to Counts I, II, IV, V and VI of the Third Amended
Complaint, filed 11/26/14 (dkt. no. 856) (“11/26/14 Summary
Judgment Order”), at 21, available at 2014 WL 6685628. This
Court therefore treats all motions pending after November 26,
2014 as relating only to Pioneer.
2

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

(“Valenzuela Reply”); [dkt. no. 867;] and Plaintiffs filed their
replies in support of the Loudat Motion (“Loudat Reply”) and the
Reinhardt Motion (“Reinhardt Reply”) [dkt. nos. 869, 868].
These matters came on for hearing on January 5, 2015.
After careful consideration of the motions, supporting and
opposing memoranda, and the arguments of counsel, Pioneer’s
Valenzuela Motion is HEREBY GRANTED IN PART AND DENIED IN PART,
Plaintiffs’ Loudat Motion is HEREBY DENIED, and Plaintiffs’
Reinhardt Motion is HEREBY DENIED for the reasons set forth
below.
BACKGROUND
The parties and the Court are familiar with the factual
and procedural background of this case, which is set forth in the
many orders that the Court has issued, and does not need to be
repeated here.

In particular, the Court refers to its Order

Granting Defendants’ Motion in Limine No. 1 re Health Effects
(“Health Effects Order”).

[Filed 8/26/14 (dkt. no. 803).3]

This

Order will only discuss the background that is relevant to the
instant motions.
I.

Valenzuela Motion
Hector Valenzuela, Ph.D., is a Professor and Vegetable

Crops State Extension Specialist at the University of Hawai`i at
3

The Health Effects Order is also available at 2014 WL
4244221.
3

Mânoa.

[Valenzuela Motion, Decl. of Clement L. Glynn in Supp. of

Motion in Limine No. 2 (“Glynn Valenzuela Decl.”), Exh. A (Hector
R. Valenzuela Curriculum Vitae) at 1.]

Plaintiffs state that he

“is a widely recognized expert concerning appropriate farming
practices and the application of pesticides through Integrated
Pest Management in Hawaii.”

[Valenzuela Opp. at 9.]

Plaintiffs

retained him
to review the production and soil conservation
practices followed by [Pioneer] at the Waimea
Agricultural Research Center from the period of
1998 to 2011. Basic questions that [he] was asked
to review include:
a.

Whether Pioneer followed “Generally
Accepted Agricultural and Management
Practices (GAAMP);”

b.

Whether Pioneer followed “Best
Management Practices” as required by
Kauai County Law; and

c.

Whether Pioneer followed appropriate
Integrated Pest Management (IPM)
Practices, as part of their overall
farming and research operations at the
Waimea Agricultural Research Center.

[Glynn Valenzuela Decl., Exh. B (Expert Report by Hector
Valenzuela, Ph.D., dated 3/12/14 (“Valenzuela Report”)) at 3.]
In the Valenzuela Motion, Pioneer asks this Court to
exclude Dr. Valenzuela’s opinion testimony regarding Pioneer’s
alleged failure to follow GAAMP “with respect to its use of
agricultural chemicals because such testimony is irrelevant, and
because allowing the jury to hear it would result in unfair
4

prejudice, undue consumption of time, and confusion of the
issues.”

[Valenzuela Motion at 2.]

Pioneer acknowledges that

the issue of whether it “takes adequate measures to reduce dust
emissions from the property it farms is fair game,” and Pioneer
does not seek to exclude Dr. Valenzuela’s opinion testimony
regarding dust.
II.

[Mem. in Supp. of Valenzuela Motion at 2.]

Loudat Motion
Thomas Loudat has a Ph.D. in Economics.

[Loudat Opp.,

Decl. of Clement L. Glynn in Supp. of Loudat Opp. (“Glynn Loudat
Decl.”), Exh. A (Thomas Anthony Loudat curriculum vitae) at 1.]
Dr. Loudat is a private consultant who has provided economic
analysis in “1000+ separate projects conducted between 1983 and
present related to the estimation of economic damages in wrongful
death, personal injury, wrongful termination, divorce and
business litigation cases.”

[Id. at 4.]

He has been qualified

as an expert in economics in this district court, as well as in
“each of Hawaii’s Circuit courts [sic] and Family Courts,
arbitration hearings and various public/legislative hearings.”
[Id.]

Dr. Loudat’s report states:
Pioneer Seed Company is part of the Hawaii seed
crop industry. Pioneer operates on Oahu and most
significantly West Kauai. Pioneer’s West Kauai
operations lead to economic and fiscal impacts not
only to West Kauai but Kauai County as well. This
report presents results of analyzing these
contributions focusing on the Kauai and West Kauai
economies.
5

[Pioneer Seed Co.’s Economic Contributions to the Kauai & West
Kauai Economies by Thomas Loudat, PhD, dated June 2014 (“Loudat
Report”), filed under seal 1/6/15 (dkt. no. 874), at i.]
In the Loudat Motion, Plaintiffs ask this Court to
exclude Dr. Loudat’s testimony at trial because: Dr. Loudat’s
testimony about the economic benefit of Pioneer’s operations is
irrelevant; and, even if Dr. Loudat’s testimony is otherwise
admissible, it would be unduly prejudicial because Defendants did
not provide Plaintiffs with sufficient financial information to
evaluate his opinions.

[Loudat Motion at 2.]

III. Reinhardt Motion
James N. Reinhardt, AIA, CSI, is the President of
Architectural Diagnostics, Ltd.

[Reinhardt Motion, Decl. of P.

Kyle Smith (“Smith Reinhardt Decl.”), Exh. 2 (Architectural
Diagnostics, Ltd. Report in Response to 2/24/14 Report by KHA,
dated 6/19/14 (“Reinhardt Report”)) at 18.4]

He is licensed in

Hawai`i and Washington and has been practicing continuously in
Hawai`i since 1968.

He has done work on Kauai, including work in

the Kekaha/Waimea area.

[Id. at 11, ¶¶ 6.1-6.2.]

He has been

qualified as an expert in various Hawai`i state courts in the
areas of “[a]rchitectural design, practice, and ethics,

4

Mr. Reinhardt’s Resume is part of his report. [Reinhardt
Report at 18-20.] The Court notes that the version of the
Reinhardt Report which Plaintiff filed as Exhibit 2 appears to be
missing page 12.
6

construction and construction industry practices, repair &
maintenance of buildings, waterproofing, window systems,
selection & evaluation of flooring materials, design & evaluation
of steps & stairways, interpretation of construction contracts &
documents, interpretation of property restrictions & restrictive
covenants.”

[Id. at 18.]

Mr. Reinhardt is the defense expert

“concerning the absence of property damage and economic loss to
Plaintiffs from Pioneer’s farming operations,” and Pioneer states
that he may testify “to rebut the testimony of certain of
Plaintiffs’ experts.”

[Reinhardt Opp., Decl. of Michael J.

Scanlon (“Scanlon Reinhardt Decl.”), Exh. D (Defs.’ Disclosure of
Expert Witnesses, dated 6/20/14) at 4-5.]

The Reinhardt Report

responds to the February 24, 2014 report prepared by David Knox
of Knox-Hoversland Architects, Ltd.5

[Reinhardt Report at 1.]

In the Reinhardt Motion, Plaintiffs seek an order
precluding Mr. Reinhardt from testifying regarding: “a) potential
sources of dust in Waimea; or b) an alternative cost of repair to
remediate Waimea homes.”

[Reinhardt Motion at 2.]

Plaintiffs

assert that Mr. Reinhardt’s opinions are not proper rebuttal
because he agrees with Mr. Knox that there is property damage in

5

Plaintiffs have designated Mr. Knox as their expert
regarding “the effect, investigation, mitigation, costs and
protocols associated with fugitive dust for Waimea, Kauai.”
[Scanlon Reinhardt Decl., Exh. A (Pltfs.’ Designation of Expert
Witnesses Pursuant to Fed. R. Civ. P. 26(a)(2), dated 3/12/14) at
2-3.]
7

Waimea from dust and that Pioneer’s operations are one of the
potential causes of the dust.

Plaintiffs argue that this Court

should exclude Mr. Reinhardt’s opinions regarding other potential
sources and alternate remediation costs because he did not
“perform any testing, investigation, or research to determine the
actual source of the dust or to quantify the actual impact,”
[id. at 4,] and he “did not perform any estimation of costs to
remedy, repair or rectify any of the conditions that afflict
Plaintiffs’ homes” [id. at 10].
DISCUSSION
I.

Valenzuela Motion
The Valenzuela Report summarizes Dr. Valenzuela’s

opinions as follows:
a)

Did DuPont Pioneer follow GAAMP? Based on my
review of the production management program
followed by DuPont Pioneer (“Pioneer”) over
the 1998-2011 period I conclude that Pioneer
did not follow Generally Accepted
Agricultural Management Practices (GAAMP).
Pioneer failed to conduct an environmental
and human-impact assessment of the sitespecific pre-existing conditions at the
Waimea Agricultural Research Center, given
the close proximity of Waimea Town, which is
located downwind from the research station,
and given the close proximity of sensitive
wildlife and aquatic habitats. Furthermore,
over extended periods of time, Pioneer failed
to obtain grubbing and grading permits,
agricultural exemptions, and to prepare or
follow Soil Conservation Plans as required by
County Law.

8

b)

Did Pioneer follow Best Management Practices?
Based on my review of the production
management program followed by Pioneer over
the 1998-2011 period I conclude that Pioneer
did not follow Best Management Practices, at
the Waimea Agricultural Research Center.
Pioneer failed to consider the site-specific
environmental conditions that existed in
Waimea, and to design management programs
that would help to mitigate pesticide drift
and fugitive dust escapes into the nearby
community and aquatic habitats; and prevent
run-off and erosion into sensitive aquatic
habitats. Pioneer also failed to adopt and
to follow through with the best management
soil conservation practices that were
outlined in plans that Pioneer had prepared
for Kauai County.

c)

Did Pioneer follow an Integrated Pest
Management program (IPM)? Based on my review
of the pest management programs followed by
Pioneer over the 1998-2011 period I conclude
that Pioneer did not follow Integrated Pest
Management Practices (IPM), at the Waimea
Agricultural Research Center. Pioneer did
not prepare an internal IPM manual that would
outline their pest management program with
clear guidelines as to pesticide thresholds,
and alternative management practices, which
could be used as a training manual for staff,
given the high staff turn-over rate at the
Waimea Research Center. Also, Pioneer’s pest
management programs were centered around the
use of pesticides, with less priority given
to alternative management programs, which is
counter to the generally accepted IPM
approach. Over the years, Pioneer was cited
numerous times by regulatory agencies with
complaints over pesticide drift and/or
improper pesticide use. Furthermore, an
internal pesticide safety use audit conducted
by Pioneer outlined a number of deficiencies
with respect to improper staff training and
inadequate pesticide use and handling at the
Waimea Agricultural Research Center.
9

[Valenzuela Report at 1 (bold emphasis in original, underline
emphasis added).]

Plaintiffs argue that Dr. Valenzuela’s

opinions regarding Pioneer’s use of pesticides and/or
agricultural chemicals are relevant to: 1) Plaintiffs’ claims
regarding pesticide drift into the Waimea community; and 2) their
burden to prove, as to all of their claims, that the Hawaii Right
to Farm Act, Haw. Rev. Stat. Chapter 165, does not apply because
Pioneer failed to operate the Waimea Research Center in a manner
consistent with GAAMP.6

6

Haw. Rev. Stat. § 165-4 which provides that:
No court, official, public servant, or public
employee shall declare any farming operation a
nuisance for any reason if the farming operation
has been conducted in a manner consistent with
generally accepted agricultural and management
practices. There shall be a rebuttable
presumption that a farming operation does not
constitute a nuisance.

Plaintiffs’ negligence and trespass claims are also considered
with the class of “nuisance” claims governed by the Farm Act.
See Haw. Rev. Stat. § 165-2; see also Order Denying Pltfs.’
Motion for Partial Summary Judgment to Dismiss Def. Dupont
Pioneer’s Third Affirmative Defense Based on the Hawaii Right to
Farm Act, Hawaii Revised Statutes, Chapter 165, filed 9/30/14
(dkt. no. 825), available at 2014 WL 4956489. In light of the
rebuttable presumption in § 165-4, “in order to establish their
negligence, trespass, or common law nuisance claims, Plaintiffs
will have to prove that Pioneer failed to operate the [Waimea
Research Center] in a manner consistent with generally accepted
agricultural and management practices.” See Order Granting in
Part and Denying in Part Defs.’ Motion to Dismiss Third Amended
Complaint (Rule 12(b)(6)), filed 2/27/14 (dkt. no. 608), at 7
(citation omitted), available at 2014 WL 806224.
10

A.

Claims Regarding Pesticide Drift
Without waiving their right to contest the issue on

appeal, Plaintiffs acknowledge that this Court has ruled their
Third Amended Complaint (Property Related Claims) (“Third Amended
Complaint”), [filed 9/6/13 (dkt. no. 331),] only alleges claims
for property damages.

They argue that one component of their

property damage claims is their claim that they have lost the use
and enjoyment of their property because they have observed the
pesticide drift and they are concerned about the effect that it
may have on their health and the environment.

This Court,

however, has ruled that the Third Amended Complaint does not
contain such claims.

See Health Effects Order, 2014 WL 4244221,

at *3 (concluding that “the Third Amended Complaint does not
allege any substantive claim based on environmental effects”
(emphasis added)), *4 (concluding that “the Third Amended
Complaint does not allege any substantive claim based on health
effects” (emphasis added)).

Similarly, there are no claims in

this case alleging harm to “wildlife and aquatic habitats” as a
result of pesticide drift from Pioneer’s operations.
Dr. Valenzuela’s testimony regarding Pioneer’s use of
pesticides and/or agricultural chemicals is irrelevant to
Plaintiffs’ claims for property damages, unless his testimony
specifically addresses the effect on relevant property.

11

For

example, testimony that pesticide drift from Pioneer’s operations
caused increased corrosion of vehicles in the Waimea area would
be relevant.

Further, this Court finds that Dr. Valenzuela’s

testimony regarding Pioneer’s use of pesticides and their effects
on relevant property would not: be unfairly prejudicial, confuse
the jury, or result in undue delay.
B.

See Fed. R. Evid. 403.

Whether Pioneer Complied with GAAMP
Plaintiffs also argue that Dr. Valenzuela’s testimony

regarding Pioneer’s use of pesticides and/or agricultural
chemicals is relevant to Plaintiffs’ burden to prove, as to all
of their remaining claims, that Pioneer failed to comply with
GAAMP.

If Pioneer failed to comply with GAAMP regarding harm

unrelated to the claims in this case, such as harm to coral reefs
and marine life, it arguably makes it more probable that Pioneer
failed to comply with GAAMP regarding harm to Plaintiffs’
property.

See Fed. R. Evid. 401(a) (“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.”).
This Court, however, finds that such relevance is
outweighed by the risk of undue prejudice and jury confusion.
Even if those risks could be addressed through jury instructions
about the limited purpose of that testimony, the limited
relevance is outweighed by the undue delay which would result.
12

Allowing such evidence would lengthen Dr. Valenzuela’s testimony,
and this Court would also have to allow Pioneer to respond with
its own expert witness testimony regarding those unrelated harms.
This would exponentially increase the length of the trial.

This

Court therefore concludes that Dr. Valenzuela’s testimony about
the effects of Pioneer’s use of pesticides that are unrelated to
Plaintiffs’ property claims should be excluded pursuant to Rule
403.
C.

Ruling
To the extent that the Valenzuela Report addresses the

effects of Pioneer’s use of pesticides and/or agricultural
chemicals on relevant property, Pioneer’s Valenzuela Motion is
DENIED.

At trial, Dr. Valenzuela may testify regarding those

effects and whether Pioneer complied with GAAMP to prevent and/or
mitigate such effects.

The Valenzuela Motion is GRANTED in all

other respects.
II.

Loudat Motion
A.

Relevance
Plaintiffs first argue that Dr. Loudat’s opinion

testimony is not relevant because any public, economic benefit of
Pioneer’s operations is not a defense to Plaintiffs’ claims.
Specifically, Plaintiffs argue that Hawai`i law does not
recognize a public benefit or economic value defense to a

13

nuisance claim.

[Loudat Motion at 6 & nn.14-16 (citing Fernandez

v. People’s Ice & Refrigerating Co., 5 Haw. 532, 534 (Hawai`i
Kingdom 1886)).]

In Fernandez, a nuisance action, the Supreme

Court of the Kingdom of Hawai`i held that: “It can be no defense
in this case that ice may be a necessity, or that the price of it
may have been reduced by the operation of defendants’ factory.”
5 Haw. at 534.

Although Plaintiffs acknowledge the age of

Fernandez, they argue that this Court must follow it because it
is the only Hawai`i state court case addressing the issue.
This Court has diversity jurisdiction over the instant
case pursuant to the Class Action Fairness Act.

[Notice of

Removal, filed 5/4/12 (dkt. no. 1), at ¶ 12 (some citations
omitted) (citing 28 U.S.C. § 1332(d)).]

The Ninth Circuit has

recognized that:
In determining the law of the state for purposes
of diversity, a federal court is bound by the
decisions of the highest state court. Harvey’s
Wagon Wheel, Inc. v. Van Blitter, 959 F.2d 153,
154 (9th Cir. 1992). If the state’s highest court
has not decided an issue, it is the responsibility
of the federal courts sitting in diversity to
predict “how the state high court would resolve
it.” Air–Sea Forwarders, Inc. v. Air Asia Co.,
Ltd., 880 F.2d 176, 186 (9th Cir. 1989) (internal
quotation marks omitted). . . .
Albano v. Shea Homes Ltd. P’ship, 634 F.3d 524, 530 (9th Cir.
2011).
The Hawai`i state courts consider case law from the
Supreme Court of the Kingdom of Hawai`i as Hawai`i Supreme Court
14

precedent.

See, e.g., Maunalua Bay Beach Ohana 28 v. State, 122

Hawai`i 34, 38-39, 222 P.3d 441, 445-46 (Ct. App. 2009)
(discussing Halstead v. Gay, 7 Haw. 587 (1889)).

However, it is

unclear whether Hawai`i law currently embraces the public benefit
holding in Fernandez because no Hawai`i state court case has
cited Fernandez for that proposition, or any other proposition.
Further, neither the parties nor this Court is aware of any other
Hawai`i state court case addressing the same issue.
Pioneer argues that the law of nuisance has evolved
significantly since the time of Fernandez, and the Hawai`i
Supreme Court would follow the modern approach, which is
described in Restatement (Second) of Torts § 822 (“Restatement
§ 822”) and its comments.

Section 822 states:

One is subject to liability for a private nuisance
if, but only if, his conduct is a legal cause of
an invasion of another’s interest in the private
use and enjoyment of land, and the invasion is
either
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable
under the rules controlling liability for
negligent or reckless conduct, or for
abnormally dangerous conditions or
activities.
Comment b to Restatement § 822 acknowledges the historical change
in nuisance law:
In early tort law the rule of strict liability
prevailed. An actor was liable for the harm
caused by his acts whether that harm was done
15

intentionally, negligently or accidentally. In
course of time the law came to take into
consideration not only the harm inflicted but also
the type of conduct that caused it, in determining
liability. This change came later in the law of
private nuisance than in other fields. Private
nuisance was remediable by an action on the case
irrespective of the type of conduct involved.
Thus the form of action did not call attention to
the change from strict liability to liability
based on conduct. But the change has occurred,
and an actor is no longer liable for accidental
interferences with the use and enjoyment of land
but only for such interferences as are intentional
and unreasonable or result from negligent,
reckless or abnormally dangerous conduct.
In addition, comment k to Restatement § 822(b) notes, in
pertinent part: “The standards for negligent or reckless conduct
. . . involve a balancing process . . . — that of balancing the
gravity of the harm against the utility of the conduct.”
(Emphasis added.)
When appropriate, this district court can predict that
the Hawai`i Supreme Court would abandon out-dated precedent in
favor of the modern trend in the applicable law.

See, e.g.,

Elliot Megdal & Assocs. v. Hawaii Planing Mill, Ltd., 814 F.
Supp. 898, 903-04 (D. Hawai`i 1993) (predicting the abandonment
of Kyles v. Lantis, 39 Haw. 440 (1952), in favor of the
principles in Restatement (Second) of Torts § 525).

In Elliot

Megdal, this district court noted that: “Hawaii courts have
increasingly relied upon the Restatement for guidance in tort
principles[;]” many of the state courts cited in Kyles
16

subsequently abandoned the rule that Kyles embraced; and
Prosser’s Law of Torts recognized the modern trend.

Id. at 904.

The same rationale applies in the instant case.
Hawai`i courts continue to look to the Restatement on issues of
tort law.

See, e.g., Adams v. Dole Food Co., 132 Hawai`i 478,

491-92, 323 P.3d 122, 135-36 (Ct. App. 2014) (discussing
Restatement (Second) of Torts § 18).

In listing examples of

cases holding that the utility of the conduct causing the alleged
nuisance is not a defense, Fernandez cited case law from, inter
alia, New York, New Jersey, and Massachusetts.

5 Haw. at 533

(citing Hutchins vs. Smith, 63 Barb. 251 (N.Y. App. Div. 1872);
Ross vs. Butler, 19 N. J. Eq., 294 (N.J. Ch. 1968); Wesson vs.
Washburne Iron Co., 13 Allen 95 (Mass. 1866)).

Those states now

follow Restatement § 822 and consider, as part of the analysis of
a nuisance claim, the balance of the harm to the plaintiff
against the benefit of the defendant’s conduct.

See, e.g.,

Rattigan v. Wile, 841 N.E.2d 680, 686-87 (Mass. 2006); Smith v.
Jersey Cent. Power & Light Co., 24 A.3d 300, 309-10 (N.J. Super.
Ct. App. Div. 2011); Baumler v. Town of Newstead, 668 N.Y.S.2d
814, 815 (App. Div. 1998).

Further, a leading tort treatise

describes Restatement § 822 as the “contemporary thought”
regarding nuisance.
ed. 2011) 622 § 400.

2 Dan B. Dobbs et al., The Law of Torts (2d
It also recognizes that “courts as well as

the Restatement do attempt to consider the usefulness of the
17

defendant’s activity.”

Id. at 631 § 401.

For these reasons, this Court predicts that the Hawai`i
Supreme Court would abandon the rule stated in Fernandez in favor
of Restatement § 822, and would hold that the utility of the
defendant’s conduct is relevant to the plaintiff’s nuisance
claim.

This Court therefore concludes that Dr. Loudat’s opinions

and testimony regarding the economic benefits of Pioneer’s
operations are relevant to Plaintiff’s nuisance claim.
In addition, this Court notes that Plaintiffs are
seeking a permanent injunction against Pioneer.
Complaint at pg. 38, ¶ 4.]

[Third Amended

This district court has stated that:

The standard for granting a permanent
injunction is essentially the same as for granting
a preliminary injunction, except that a party
seeking a permanent injunction must demonstrate
actual success on the merits as opposed to a mere
likelihood of success on the merits. See Amoco
Prod. Co. v. Village of Gambell, 480 U.S. 531, 546
n.12 (1987). A plaintiff seeking a permanent
injunction must demonstrate:
(1) that it has suffered an irreparable
injury; (2) that remedies available at law,
such as monetary damages, are inadequate to
compensate for that injury; (3) that,
considering the balance of hardships between
the plaintiff and defendant, a remedy in
equity is warranted; and (4) that the public
interest would not be disserved by a
permanent injunction.
Hawaii Pac. Health v. Takamine, Civil No. 11–00706 SOM/KSC, 2013
WL 1858554, at *3 (D. Hawai`i May 1, 2013) (quoting eBay Inc. v.
MercExhange, LLC, 547 U.S. 388, 391 (2006)).
18

This Court also

concludes that the utility and economic benefit of Pioneer’s
operations is relevant to the balancing of the hardships between
the parties and the public interest.
B.

Failure to Produce Supporting Information
Plaintiffs next argue that allowing Dr. Loudat to

testify would be unfairly prejudicial to them because, throughout
the litigation, Defendants failed to produce financial evidence
in discovery.

As a result, Plaintiffs did not have sufficient

information to properly evaluate Dr. Loudat’s opinions.

To the

extent that this portion of the Loudat Motion addresses discovery
disputes, those issues were, or should have been, raised before
the magistrate judge through the normal discovery process.
Plaintiffs cannot use a motion in limine as a substitute for a
timely appeal from the magistrate judge’s orders, and this Court
will not revisit his rulings here.
This Court, however, also construes the Loudat Motion
as arguing that Pioneer failed to make the Fed. R. Civ. P.
26(a)(2)(B) disclosures regarding the Loudat Report.

Pursuant to

Rule 26(a)(2)(B), the Loudat Report must include, inter alia:
(i) a complete statement of all opinions the
witness will express and the basis and reasons for
them;
(ii) the facts or data considered by the witness
in forming them; [and]
(iii) any exhibits that will be used to summarize
or support them[.]
19

At the hearing on the Loudat Motion, Plaintiffs acknowledged that
their counsel were able to review the materials provided to Dr.
Loudat for the preparation of his report.

Based upon Plaintiffs’

representation and this Court’s review of the Loudat Report, this
Court finds that Pioneer’s disclosures regarding the Loudat
Report complied with Rule 26(a)(2)(B).
C.

Ruling
Insofar as this Court has ruled that Dr. Loudat’s

opinion testimony is relevant, and Pioneer’s disclosures complied
with the applicable rules, Plaintiffs’ Loudat Motion is DENIED.
III. Reinhardt Motion
Plaintiffs seek to exclude Mr. Reinhardt’s opinion
testimony regarding: 1) alternate sources of Plaintiffs’ claimed
dust damages; and 2) the costs to repair, remediate, and clean
the dust damage.

As to these areas, Pioneer has offered

Mr. Reinhardt as a rebuttal expert in response to Plaintiffs’
expert, Mr. Knox.

See Reinhardt Opp. at 1-2.

Rule 26(a)(2)(D)(ii) “defines rebuttal experts as
presenting evidence that is intended solely to contradict or
rebut evidence on the same subject matter identified by an
initial expert witness.”

Lindner v. Meadow Gold Dairies, Inc.,

249 F.R.D. 625, 635-36 (D. Hawai`i 2008) (alterations, citations,
and internal quotation marks omitted).

The fact that

Mr. Reinhardt only responds to Mr. Knox’s report and analysis 20

instead of preparing his own analysis regarding alternate sources
and costs of repair and remediation - is not sufficient grounds
to exclude those portions of Mr. Reinhardt’s testimony.

Cf. id.

at 636 (“The mere fact that Plaintiff designated only rebuttal
experts on these issues is not sufficient grounds to strike . . .
[their r]eports and exclude their testimony.” (citation
omitted)).

However, to the extent that Pioneer has designated

Mr. Reinhardt as a rebuttal expert in these areas, his testimony
is limited.

At trial, he can only testify regarding those issues

if Plaintiffs present the opinions by Mr. Knox that Mr. Reinhardt
responded to in the Reinhardt Report.
Thus, this Court DENIES Plaintiffs’ Reinhardt Motion
because Mr. Reinhardt’s opinion testimony regarding alternate
sources of dust and costs of repair and remediation is proper
rebuttal expert testimony.
CONCLUSION
On the basis of the foregoing, Pioneer’s Motion in
Limine No. 2 to Exclude Opinion Testimony of Hector Valenzuela
Related to Alleged Failure to Follow GAAMP with Respect to
Pioneer’s Use of Agricultural Chemicals, filed October 15, 2014,
is HEREBY GRANTED IN PART AND DENIED IN PART, and Plaintiffs’
Motion in Limine No. 1 to Exclude Expert Testimony of Thomas
Loudat, and Motion in Limine No. 2 to Exclude Certain Expert
Testimony of James Reinhardt, both filed October 15, 2014, are
21

HEREBY DENIED.
In light of the instant Order, at trial, Plaintiffs are
prohibited from presenting Dr. Valenzuela’s opinion testimony
regarding Pioneer’s alleged failure to follow generally accepted
agricultural management practices with respect to its use of
pesticides and/or agricultural chemicals, except to the extent
that Dr. Valenzuela’s opinion testimony addresses the effect of
the pesticides and/or agricultural chemicals on Plaintiffs’
property and whether Pioneer complied with GAAMP to prevent
and/or mitigate those effects.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 13, 2015.

/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 IN PART AND DENYING IN PART DEFENDANT’S MOTION IN LIMINE
NO. 2; AND DENYING PLAINTIFFS’ MOTION IN LIMINE NO. 1 AND MOTION
IN LIMINE NO. 2

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