Adams, et al v. USA

Filing 2115

MEMORANDUM DECISION AND ORDER granting 2024 Motion in Limine to exclude testimony inconsistent with preclusion decision. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

TIMM ADAMS, et al.,
Case No. 4:CV 03-49-BLW
Plaintiffs,
v.

UNITED STATES OF AMERICA, et al.,

MEMORANDUM DECISION AND
ORDER RE MOTION IN LIMINE
TO EXCLUDE TESTIMONY
INCONSISTENT WITH
PRECLUSION DECISION

Defendants.

INTRODUCTION

The Court has before it plaintiffs’ motion in limine to exclude testimony
inconsistent with the Court’s earlier preclusion decision. The Court heard oral argument
on the motion on October 3, 2011, and took it under advisement. For the reasons
expressed below, the Court will grant the motion.
ANALYSIS
On October 29, 2010 – about 14 months after the bellwether trial – the Court ruled
that certain aspects of the jury verdict would have preclusive effect on DuPont. The
Court held that “[t]he preclusive effect of the bellwether trial extends beyond just the
findings that Oust was capable of causing harm and also covers findings that Oust was
blown downwind onto the bellwether plaintiffs’ farms in sufficient quantities to damage
crops in 2000 to 2004.” Memorandum Decision (Dkt. No. 1807) at p. 18 (emphasis in
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original). In that decision, the Court reviewed the history of the litigation, which clearly
demonstrated that all parties – including DuPont, the bellwether plaintiffs and the nonbellwether plaintiffs – knew going into the bellwether trial that the Court would accord
preclusive effect to the jury’s findings on liability and general causation issues, including
whether Oust was capable of moving off-site in quantities sufficient to kill bellwether
crops. Indeed, DuPont had originally requested a bellwether trial on the ground that it
would be “helpful in applying the outcome of the bellwether trials to the claims of the
remaining plaintiff grower groups . . . .” See DuPont Motion (Dkt. No. 222) at pp. 5-6.
Because of this advance notice, all parties had a full and fair opportunity to litigate the
issues of liability and general causation.
About six months after the Court rendered its preclusion decision, DuPont filed its
expert reports. Plaintiffs argue that the defense experts ignored the Court’s preclusion
decision and challenged the capability of Oust to cause the damage found by the jury in
the bellwether trial:
Those experts boldly draw maps and make statements that leave no doubt,
under their view of the facts, what the Court and jury found could not, and did
not, happen. According to Defendants’ new experts, Oust never was deposited
onto most bellwether plaintiffs’ fields and would have quickly dissipated on
those it did reach. Further, they opine that crop damage beyond 2002 is
essentially impossible, except for fields practically adjacent to the source
areas.
Plaintiffs’ Brief (Dkt. No. 2024) at p. 11.
To evaluate plaintiffs’ argument, the Court turns to the expert reports and
documents provided by both parties in conjunction with this motion. Those materials
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show that DuPont’s expert opinions rely heavily on foundational work done by air
dispersion expert David Sullivan and soil expert Dr. Jiri Simunek. In turn, those two
experts relied on each other’s work. Simunek testified about the fate and persistence of
Oust, while Sullivan testified about how Oust was carried by the wind. More specifically,
(1) Simunek estimated how much Oust was available at the application sites to be blown
by the wind; (2) Sullivan estimated where the wind would blow that Oust and, relying on
Simunek’s work, how much Oust would be deposited at various distances from Oust
application sites; and (3) Simunek then calculated how deep the Oust went into plaintiffs’
fields, and, relying on Sullivan’s Oust deposit figures, how long it persisted there.1
With regard to the application sites, Simunek concluded that Oust concentrations
“decreased dramatically with time” and that “only small quantities of [Oust] were
leached” into the soil. See Simunek Report (Dkt. No. 2024-5) at pp. 65-66. That means
that very little Oust remained to be wind-blown after the applications.
Sullivan relied on those findings in estimating the amounts of Oust that were
deposited by the wind at various distances from the application sites. For example,
Sullivan concluded that wind-blown Oust could be transported from an application site at
a concentration of 6 parts-per-trillion (ppt) for distances of 15, 25, 10 and 1 mile in 2000,
2001, 2002 and 2003, respectively. See Sullivan Report (Dkt. No. 2024-8).
Turning to the plaintiffs’ fields, Simunek again concluded that Oust degraded

1

Simunek worked with another soil scientist, Dr. Husein Ajwa on the persistence issues.

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“dramatically with time” and that Oust concentrations in the root zone “remained above
10 ppt during the first two year only in areas immediately adjacent (up to 1 km) to the
[application sites].” Id at 66. At larger distances from the application sites, Oust
“concentrations in the root zone dropped below 10 ppt during the first year after the Oust
application in the [application sites].” Id.
Having established the transport, fate, and persistence of Oust, DuPont then turned
to other experts to determine the consequences of having a certain concentration of Oust
in a field of crops. For example, DuPont’s crop pathology expert for crops other than
potatoes, Dr. Stephen Miller, concludes that Oust concentrations of 6 ppt or lower would
cause no damage, and then uses Sullivan’s modeling to determine which plaintiffs are
making claims for non-potato crop losses within areas (and years) that Sullivan concluded
would have Oust concentrations in the soil of 6 ppt or higher. Dr. Miller concludes that
because no non-bellwether plaintiff (other than Perry Van Tassel) farmed land that would
have that concentration after 2002, “all other claims [that is, all claims other than Van
Tassel’s] after 2002 should not be allowed.” See Dr. Miller Report (Dkt. No. 2024-24) at
p. 13.
DuPont’s crop pathology expert for potatoes, Dr. Robert Thornton, concluded that
many plaintiffs making potato crop loss claims were not affected by Oust, and similarly
relied entirely on Sullivan’s model to determine the concentration of Oust in various
plaintiffs’ fields. Dr. Thornton concluded that concentrations of Oust less than 5 ppt
cannot harm potatoes. See Dr. Thornton Report (Dkt. No. 2024-24) at p. 46-47.
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Much of this testimony directly contradicts the jury verdict in the bellwether trial.
For example, Sullivan maps the area around the High Point Burn that he concludes
remains contaminated in 2004 with 1 part-per-trillion of Oust. See Map (Dkt. No. 20248). The area extends out from the High Point Burn only about 2 miles. Any area beyond
that point does not contain enough Oust to kill crops in 2004, according to the DuPont
experts, as discussed above. Id. This means that two of the bellwether plaintiffs whose
fields were between 11 and 33 miles from the High Point Burn – Jentzsch-Kearl and
Hansen Farms – would have no injury in 2004. Yet the bellwether jury found that both of
these parties suffered Oust damage in 2004 for sugar beets and potatoes.
The plaintiffs point out in their briefing that similar contradictions exist for the
years 2000 to 2003. Indeed, the plaintiffs assert that under the opinions rendered by
Dupont’s experts, “no bellwether plaintiff could have suffered the proven Oust damage in
2000.” See Plaintiffs’ Brief (Dkt. No. 2024) at p. 12. This would directly contradict the
bellwether jury’s findings that in 2000, there was Oust-caused damage to the sugar beets
of bellwether plaintiffs Clinger and Hansen and to the potatoes of Jentzsch-Kearl and
Hansen. DuPont offered no rebuttal to this argument, and it appears to be confirmed by
the Court’s cursory examination of the record.
DuPont knew that their experts’ opinions were necessarily cabined by the
preclusive effect given by the Court to the jury verdict in the bellwether trial, since the
Court’s preclusion opinion was issued some six months before DuPont’s expert reports
were due. Yet the experts appear to have made no effort to reconcile their opinions with
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that jury verdict. Indeed, it appears that there can be no reconciliation for many of their
opinions. When plaintiffs pointed this out in their briefing, DuPont’s response did not
contain any citation to their experts’ reports that explain how their opinions can co-exist
with the jury verdict.
At the oral argument on plaintiffs’ motion, the Court asked DuPont’s counsel if he
was arguing that “the jury should be allowed to . . . make a determination in this case that
would be utterly inconsistent with the determination they made during the first trial.”
DuPont’s counsel responded that “[u]nfortunately, because we didn’t preserve the issues
that needed to be preserved for preclusion, I’m thinking that’s exactly where we find
ourselves.” DuPont’s counsel elaborated that no precise preclusion boundary could be set
because the bellwether jury never made a specific determination on critical issues such as
(1) the level at which Oust injures crops, (2) the amount of Oust that remained in the
erodible layer of soil at the application sites, (3) the amount of Oust deposited in the
bellwether fields, and (4) the length of time that Oust persisted in those fields. The lack
of a specific jury finding on these issues, DuPont argues, means that DuPont’s experts
may render opinions on them without regard to the bellwether jury’s findings.
The Court disagrees. Even without those specific findings, the bellwether jury
verdict quite clearly means that Oust was capable of being transported to the fields of the
bellwether plaintiffs in sufficient quantities to damage crops from 2000 to 2004. The
testimony of all experts is constrained by the preclusive effect of these findings. An
expert – or group of experts – cannot testify that Oust was incapable of being transported
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up to 33 miles in sufficient quantities to damage crops from 2000 to 2004. Instead, all
experts must start from the premise that Oust was capable of being transported up to 33
miles in sufficient quantities to damage crops from 2000 to 2004.
DuPont argues, however, that Oust distribution by wind was “patchy,” and that
“finding Oust in a bellwether plaintiff’s field in the bellwether trial does not prove that
any other field – including a nearby field – was also contaminated.” See DuPont Brief
(Dkt. No. 2082) at p. 6. The Court agrees, and earlier rejected any attempt by plaintiffs to
establish a “zone” of contamination. DuPont’s experts are free to explain why the nonbellwether fields should be treated differently than the bellwether fields. Perhaps the
differences are explained by a plaintiff’s farming practices, disease, insects, irrigation, the
prevailing winds, the type of soil, or many other factors. The expert can point out these
differences and argue that even if the non-bellwether fields are adjacent to an Oustdamaged bellwether field – or closer to an application site than an Oust-damaged
bellwether plaintiff – the non-bellwether fields suffered no Oust damage.2 Moreover,
DuPont’s experts are free to rebut any testimony by plaintiffs’ experts that contradicts
their earlier testimony in the bellwether trial. Because of the preclusive effect of the
bellwether trial, DuPont cannot offer expert opinions that Oust was incapable of being
transported in sufficient quantities to damage crops for distances and years so as to
contradict – directly, or by implication – the bellwether jury’s verdict.
2

The Court expresses no opinion on whether DuPont’s experts have actually so testified in their
reports or depositions. If they have not, there may well be a serious Rule 26 issue, but it has not been
raised by this motion and so will not be considered here.
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DuPont’s suggestion that the bellwether jury’s verdict should not have preclusive
effect also raises an issue of Constitutional significance. The Reexamination Clause of the
Seventh Amendment, provides that, “no fact tried by a jury, shall be otherwise
reexamined in any Court of the United States, than according to the rules of the common
law.” Judge Posner has suggested, in the context of a request for class certification and
the bifurcation of issues for trial pursuant to Rule 42(b), that the interests protected by the
Seventh Amendment include,
a right to have juriable issues determined by the first jury impaneled to hear
them . . . and not reexamined by another finder of fact. This would be
obvious if the second finder of fact were a judge. But it is equally true if it
is another jury.
Matter of Rhone-Poulenc Rorer, Inc. 51 F.3d 1293, 1303 (7th Cir.1995)(citations
omitted); See also, McDaniel v. Anheuser-Busch, Inc.,987 F.2d 298, 305 (5th Cir.
1993)(“[I]nherent in the Seventh Amendment guarantee of a trial by jury is the general
right of a litigant to have only one jury pass on a common issue of fact.”). The Court,
having acceded to DuPont’s request that a bellwether trial be used to resolve liability and
general causation issues, cannot – consistent with the command of the Seventh
Amendment – permit a re-trial of any issue of general causation tried and resolved by the
bellwether trial.
For all of these reasons, the Court will grant plaintiffs’ motion in limine. The
Court has not yet resolved precisely how this decision will be carried out at trial. The
Court could take the traditional route and exclude any expert testimony from DuPont that

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contradicts the bellwether jury’s findings that Oust is capable of being blown by the wind
in quantities sufficient to damage crops on the bellwether plaintiffs’ fields from 2000 to
2004. In the alternative, the Court may allow the expert to testify freely, but will instruct
the jury before the expert’s testimony about the preclusive effect of the bellwether jury’s
findings, and then, after the expert’s direct examination, allow plaintiffs’ counsel to crossexamine the witness on how his testimony aligned with the Court’s instruction on
preclusion. That matter will be resolved at the pretrial conference. In either event, the
Court will be instructing the jury on the preclusive effect of the bellwether jury’s verdict.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion in limine
(docket no. 2024) is GRANTED.

DATED: October 6, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

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