Adams, et al v. USA

Filing 2122

MEMORANDUM DECISION AND ORDER-denied in part and reserved in part 1978 Fourth MOTION for Summary Judgment re Plaintiffs Fraud, Assumed Duty and Other Claims filed by E.I. Du Pont de Nemours and Company, Inc.; It is denied to the extent it se eks a summary judgment that Wada Farms is not the proper party to sue for damage to the 2000 potato crop on the 1,500 acre field. It is reserved in all other respects not yet resolved by other decisions. 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 DUPONT’S MOTION
THAT WADA FARMS IS NOT THE
PROPER PARTY IN INTEREST

Defendants.

INTRODUCTION

The Court has before it that portion of DuPont’s motion for summary judgment
alleging that plaintiff Wada Farms is improperly seeking to recover claims belonging to
Century Farms. The Court heard oral argument on October 3, 2011, and took the issue
under advisement. For the reasons expressed below, the Court will deny this portion of
DuPont’s motion.
ANALYSIS
In this lawsuit, Wada Farms claims that Oust contamination caused lost revenues
on 1,500 acres of potatoes in the 2000 crop year. In his deposition, Albert Wada was
shown an FSA document that listed Century Farms as receiving the revenues from the
potatoes grown on these 1,500 acres in 2000, and he was asked if “that is because the
revenues from this field went to Century Farms?” See Wada Deposition (Dkt. No. 2002-

Memorandum Decision & Order - 1

2) at p. 64. Wada answered “Yes.” Id.
DuPont responded by bringing this motion seeking to dismiss Wada’s claim for the
lost potato revenue on these 1,500 acres because the claim belonged to Century Farms, a
separate business entity that is not a party to this case. Wada responded by filing his
declaration stating that “I incorrectly testified that the revenues from those fields went to
Century Farms. It did not occur to me that the FSA document was wrong.” See Wada
Declaration (Dkt. No. 2001-18) at ¶ 12. Wada explains that the FSA document must be
wrong because “Century Farms grows wheat, not potatoes.” Id. at ¶ 13.1
DuPont counters that Wada cannot create an issue of fact with his declaration that
contradicts his clear deposition testimony. The Ninth Circuit has held that a court may
disregard a “sham” affidavit that a party files to create an issue of fact by contradicting
the party's prior deposition testimony. Van Asdale v. International Game Technology,
577 F.3d 989 (9th Cir. 2009). If a party could create an issue of fact simply by
contradicting his clear deposition testimony “this would greatly diminish the utility of
summary judgment as a procedure for screening out sham issues of fact.” See Kennedy v.
Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991).
At the same time, however, “[a]ggressive invocation of the rule also threatens to
1

Wada also explains that his Chief Financial Officer, Dallas Ward, called the FSA and
spoke with Elise Cumpton who told Ward that the FSA document was incorrect and that the
document should have listed Wada Farms as the producer on those acres. Id. at ¶ 13. DuPont
challenges these statements as inadmissible hearsay. The Court finds it unnecessary to resolve
the hearsay dispute because questions of fact exist even without the statements of Ward and
Cumpton, as is explained more fully above. Consequently, the Court did not consider the
statements of Ward and Cumpton in resolving this motion.
Memorandum Decision & Order - 2

ensnare parties who may have simply been confused during their deposition testimony
and may encourage gamesmanship by opposing attorneys.” Van Asdale, 577 F.3d at 998.
For that reason, the Circuit has “recognized that the sham affidavit rule should be applied
with caution.” Id. (internal quotation marks omitted). The inconsistency must be “clear
and unambiguous” and the district court “must make a factual determination that the
contradiction was actually a sham.” Id. (internal quotations omitted).
In this case there is a clear inconsistency between Wada’s deposition testimony
and his declaration. The Court cannot find, however, that Wada’s declaration is a sham.
Wada’s deposition was taken in 2011, more than a decade after the farming incident that
he was asked to recall. Throughout this litigation, the parties have engaged in a herculean
task of establishing the crops grown on a particular field in a particular year by a
particular producer. The plaintiff farmers are often confused over these particulars due to
the passage of time, their imprecise records, and the large number of fields they farm.
Due to these factors, the Court is convinced that the contradiction here was the result of
an honest discrepancy and is not a sham. Certainly Wada can be cross-examined about
the contradiction but the Court refuses to strike this declaration.
Wada’s declaration creates an issue of fact over whether Century Farms is the only
party that can sue for damage to the 1,500 acres of potatoes in 2000. Hence, the Court
will deny DuPont’s motion for summary judgment on this issue.
ORDER
In accordance with the Memorandum Decision set forth above,
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NOW THEREFORE IT IS HEREBY ORDERED, that DuPont’s motion for
summary judgment (docket no. 1978) be DENIED IN PART AND RESERVED IN
PART. It is denied to the extent it seeks a summary judgment that Wada Farms is not the
proper party to sue for damage to the 2000 potato crop on the 1,500 acre field. It is
reserved in all other respects not yet resolved by other decisions.

DATED: October 7, 2011

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

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