Dawson Farms L L C v. B A S F Corp et al

Filing 280

MEMORANDUM ORDER Sustaining in part and Overruling in part Objections to deposition transcripts. Signed by Judge Robert G James on 2/6/09. (crt,Crawford, A)

Ws~OISTRICT OURT C WESTERN DISTRICt OF LOUISIANA RECEIVED

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RDB~3)~HEMWELLCLERK F DEPUTY

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE IMYISION

DAWSON FARMS, LLC VERSUS BASF CORP., ET AL.

CIVIL ACTION NO. 06-0737 JUDGE ROBERT G. JAMES MAG. JUDGE KAREN L. HAYES MEMORANDUM ORJ)ER

Plaintiff Dawson Farms, LLC ("Dawson") and Defendant BASF Corporation ("BASF") submitted transcripts of nine trial depositions that will be offered at trial in this matter, including objections to designated testimony. For the following reasons, the objections are SUSTAINED iN PART and OVERRULED IN PART. I. GENERAL OBSERVATIONS First, the Court did not rule on objections that did not include a basis for the objection, unless the basis was readily apparent. Second, the Court finds that all counsel communications and objections are irrelevant and thus inadmissible. Finally, the Court has included pinpoint citations to the deposition testimony where necessary. The format is "page numbcr:line number." IT. DEPOSITION OF DR. RICHARI) EVANS BASF objects to Dr. Richard Evans's ("Dr. Evans") testimony regarding internal communications that post-date the sale of Outlook to Dawson. [21:12--24:4, 25:1--27:8,27:19--28:6, 42:11--44:2, 47:1--48:11]. 1

The Court finds that BASF's internal response to the farmers' complaints or BASF's awareness of an ~injury situation" is irrelevant to Dawson's product liability claims. However, evidence in Dr. Evans's email and his related deposition testimony regarding BASF's process and reasons for adding sweet potatoes to the Outlook label is relevant. With respect to the process, only evidence establishing that Outlook was or was not safe for use on sweet potatoes is relevant Accordingly, BASF' S obj ections are SUSTAINED IN PART and OVERRULED [N PART, and the following testimony is deemed admissible: 22:5--24:4, 25:1--27:8, 47:1--48:11. For the same reasons, the Court clarifies its previous Ruling [Doe. No. 229, pp. 18--19] with respect to the admissibility of the email correspondence between Dr. Evans, Dr. Dan Eric Westerberg, and Kyle Keller. Only the following statements in Dr. Evans's email are admissible: Dan: Please in very direct (bullet point) let me know: -To the best of your knnowledge what process was followed to add sweet potatoes to the DMTA-P label.
-

Anything else you know about DMTA-P on sweet potatoes.

[Rick Evans's signature line.] As explained i;?fra, the Court finds that portions of Dr. Westerberg's response to Dr. Evans's email is relevant, but that Kyle Keller's response is irrelevant and thus inadmissible. BASF also objects to Dr. Evans's testimony indicating that BASF is a German company. [9:13--24]. The Court finds that this testimony is irrelevant, and BASF'S objection is SUSTAThJED.

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ifi.

DEPOSITIONS OF NEIL BENTLEY BASF objects to Neil Bentley's ("Bentley")testimonyregarding BASF's marketing motives

and decision to expand the use of Outlook to sweet potatoes. BASF's objection is OVERRULED to the extent that Dawson seeks to offer this testimony for impeachment or rebuttal purposes. BASF objects on the basis of relevance to Bentley's testimony discussing Outlook's application to crops other than corn, indicating that Dual II Magnum was Outlook's principal competition in the corn herbicide market, and referring to a brochure that promotes Outlook for use on Irish (white) potatoes. The Court finds this testimony relevant, and BASF's objection is OVERRULED. BASF also objects to Bentley's testimony referring to marketing documents that post-date the sale of Outlook to Dawson. [November 16, 2007 Deposition, 50:17--51:8]. The Court finds that this testimony is irrelevant, and BASF's objection is SUSTAThJED. BASF objects to a portion ofBentley's testimony implying that Outlook was not labeled for use on sweet potatoes following the 2005 crop year. [September 25, 2007, Deposition, 60:16--19]. The Court reiterates its prior ruling that BASF's failure to renew the Outlook label for use on sweet potatoes following the 2005 crop year constitutes a subsequent remedial measure and is, therefore, inadmissible to prove liability. BASF's objection is SUSTA[NED 1N PART, and the following testimony is inadmissible: "for a one-year period of November of `04 to November of `05." IV. DEPOSITION OF JOW4 S. HARDEN BASF objects to John Harden's ("Harden") testimony about an email he received from Dr. 3

Evans in 2005 regarding the process for registering Outlook for use on sweet potatoes. [74:19--78]. BASF'S objection is SUSTAINED for the reasons cited previously, and only the following testimony is admissible: 74:19--75:12, 76:11--78:25. BASF also objects to counsel's comment on a BASF employee's German surname [10:1--2]; counsel's restated questions [41:18--24, 69:6--9]; and discussion between counsel [57:2--4] during Harden's deposition. The Court fmds these statements and questions by counsel are irrelevant, and BASF'S objections are SUSTAINED. BASF also objects to Harden's testimony regarding whether and when he reviewed documentary evidence in preparation for the deposition andlor whether that evidence was provided by counsel [43:9--16, 50:3--5]. The Court finds that the foregoing testimony will assist the jury in evaluating Harden's testimony. BASF's objection is OVERRULED, Dawson obj ects to Harden's testimony regarding whether he was involved in any discussions, studies, or research about whether to add sweet potatoes to the label for Outlook. [45:9--12, 17--19]. The Court finds this testimony is irrelevant, and Dawson's objection is SUSTAINED. Dawson objects to Harden's testimony that IR-4 is an inter regional group that assists growers in obtaining government approval forthe use ofherbicides on different crops [19:16--20:4] and that IR-4 asked BASF to add sweet potatoes to the use label for Outlook [32:5--1]. The Court fmds that, as BASF's contact person for IR-4, Harden has personal knowledge regarding the nature of IR-4 and its request. BASF's motives for expanding Outlook's application to sweet potatoes is helpfti.l background information, which Dawson is free to rebut, as explained 4

previously. Dawson's objection is OVERRULED. BASF objects to Harden's testimony regarding BASF's general internal decisionmaking process and whether he was aware of any internal discussions regarding the expansion of Outlook to sweet potatoes. [3 5:5--37:6]. Other than Harden's testimony regarding BASF's general decisiorunaldng process [35:18--25, 36:1--12], which provides helpful background information, the Court finds that his other testimony regarding the specific review process for Outlook's expansion to sweet potatoes is irrelevant since he was not involved. BASF'S objection is SUSTAINED IN PART and OVERRULED IN PART. Dawson objects to Harden's testimony regarding whether his review of studies applying Outlook to sweet potatoes included a review of the effect of Outlook on grade, root, or root shape. [85:8--19]. The Court finds that Harden's testimony is relevant to whether the studies indicated that Outlook was defective or to rebut BASF's claim that the studies indicated that Outlook was a suitable sweet potato herbicide. Dawson's objection is OVERRULED. Dawson objects to Harden's testimony regarding an email be sent and his explanation of the statements in his email. [67:12--25]. The Court fmds that this testimony presents a double hearsay problem: the statement in the email ("McKemie says go") andthetestimonyregardingMcKemie'sreasons as conveyedto Harden. The email statement is admissible as state-of-mind evidence, but BASF did not identify a hearsay exception for the second statement. The second question and answer [67:15--25] is inadmissible. Dawson's objection is SUSTAINED [N PART and OVERRULED IN PART.

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V.

DEPOSITION OF TOM McKEMW BASF objects to the inclusion of counsel communication. [11:18--25, 13:23--24]. BASF'S objection is SUSTAINED.

VI.

DEPOSITION OF HELENA CHEMICAL COMPANY Pursuant to Federal Rule of Civil Procedure 30(b)(6), Randy Mize ("Mize") testified as the

corporate representative for Helena Chemical Company ("Helena"). BASF objects to testimony regarding what documents Mize read and to whom he spoke in preparation for the deposition. [5:3--7:24]. BASF'S objection is OVERRULED for the reasons cited previously. BASF objects to counsel communication. [26:1--10]. BASF'S objection is SUSTAINED. BASF objects to Mize' s testimony that Outlook caused the damage to Dawson' s sweet potato crop. [21:16--23:12]. The Court finds that Mize is not qualified to offer an expert opinion, and the probative value of his lay opinion is outweighed by the danger of unfair prejudice. BASF'S objection is

SUSTAINED. Since the Court has sustained BASF's objection, Dawson's objection to Mize's explanation of the basis ofhis opinion [57:23--59:17] is OVERRULED as MOOT. Dawson objects to Mize's testimony regarding Helena's reasons for marketing Outlook for use on sweet potatoes. [29:9--2 1]. The Court fmds that Mize has the knowledge necessary to provide this testimony and that the testimony is otherwise admissible. Although Mize was not personally involved in Helena's marketing decision [13:14--25], he testified as Helena's corporate representative, and his position 6

with Helena and pre-deposition preparation qualify him to testify on this issue. This testimony is relevant to the extent that it provides helpful background information as to why Outlook was expanded to sweet potatoes (and corroborates BASF's position that it was in response to grower demand, not declining market share). With respect to the hearsay objection, Mize's testimony about Dr. Steve Kelly's letter is not offered for its truth, but rather to show Helena's state-of-mind. IVlize's testimony that growers were asking for the product is not a hearsay statement. Dawson' s objection is OVERRULED. BASF objects to lVIize's testimony regarding the contents of a letter that Helena received from Dr. Steve Kelly, an employee of the LSU AgCenter. [32:21--23, 34:15--1 8]. The Court finds that this testimony is relevant to whether users of Outlook were aware ofthe defect, and the letter's contents are not offered for their truth, but rather to establish state-of-mind or knowledge. BASF'S objection is OVERRULED. Dawson objects to Mize's testimony regarding whether Helena warned its customers that Outlook might have an adverse effect on or cause damage to sweet potatoes. [36:3--37:17, 56--57:8]. The Court finds that this testimony is relevant to the pending redhibitory defect claim. The personal knowledge requirement is satisfied by Mize's position in the company and his predeposition preparation. Finally, the statement on the Outlook label is not offered for its truth, but to show knowledge or state-of-mind. Dawson's objection is OVERRULED. Vii. DEPOSITION OF ALVIN RHODES BASF objects to Alvin Rhodes's ("Rhodes") testimony that he visited a number of growers, including "Mr. Prine" and "Mr. Todd." [8:4--5]. BASF'S objection is SUSTAINED IN PART and OVERRULED IN PART. The Court 7

previously excluded evidence ofthe claims of Mr. Prine [Doc. No. 253, p. 4] and thus any reference to Mr. Prine is inadmissible. BASF did not articulate a basis for excluding die reference to Mr. Todd nor is one readily apparent; therefore, this objection is overruled. BASF objects to counsel communications. [11:23--13:11,26:10--14,31:14-16; 40:5--17]. BASF'S objection is SUSTAINED. Dawson objects to Rhodes's testimony regard Dr. Kelly's research plots. [23:19--25:14]. The Court finds this testimony irrelevant, and Dawson's objection is SUSTAINED. BASF objects to Rhodes's testimony regarding a notation on a field service report of Mr. Corley's farm. [34:11--25, 35:7--36:4]. The Court finds that the field service report fails within the business record exception to the hearsay rule, and die notation on the report is admissible as a party admission if Mr. Ford was acting as BASF's agent. BASF's objection is OVERRULED. Dawson objects to Rhodes's testimony as to what Dr. Steve Kelly said when they visited IVIr. Ford's farm. [18--19:1--14]. The Court finds that Rhodes's testimony is inadmissible hearsay. Dawson's objection is SUSTAINED. Dawson objects to Rhodes's testimony that Mr. Thornhill said the fields that were treated with Outlook had excellent pigweed control, compared to the fields that were not treated with Outlook. [21:8--16]. The Court fmds that Rhodes's testimony is inadmissible hearsay. Dawson's objection is SUSTAINED. Dawson objects to Rhodes's testimony regarding his opinion on the cause of Mr. Thornhill `5 8

crop damage. [20:20--21:6]. The Court finds that Rhodes's testimony is relevant and does not include a hearsay statement. Dawson's objection is OVERRULED. VIII. DEPOSITION OF GEORGE CLINT STRIPLIIN Dawson objects to George Clint Striplin's testimony about the purchase and application of another chemical, SC-27, from a different chemical manufacturer. [15--16:22, 17:15--18:6]. The Court fmds that Striplin's testimony tends to rebut Dawson's claim tiiat the defect in Outlook would not have been discovered by reviewing and following the instructions on the label, which is relevant to the redhibitory defect claim. Dawson's objection is OVERRULED. Dawson objects to Striplin's testimony about whether he was aware of new herbicides in 2004. [32:7--35:8]. The Court fmds that this testimony is relevant to establish Dawson's normal practice with respect to the introduction ofnew herbicides. The statements identified as "hearsay" by Dawson are not offered for theft truth and, thus, are not hearsay. Dawson's objection is OVERRULED. Dawson objects to Striplin's testimony regarding die Dual label and Dawson's application of Dual to its crop. [37:12--38:24,40:6--42:9,42:15--18,43:14--15,43:19--44:24, 45:3--46:21]. The Court finds that this testimony tends to establish how Dawson has interpreted the statements on an herbicide's label, which is relevant to some ofdie issues raised in die redhibitory defect claim. Striplin offers a number of opinions, but given his experience as an herbicide applicator, the Court finds that he is qualified to render a lay opinion on these issues. Dawson's objection is OVERRULED, Dawson objects to Striplin's testimony that he did not "think" he observed Dr. Steve Kelly's 9

plot of sweet potatoes, which had been treated with Outlook. [88:9--1]. The Court finds that this testimony is irrelevant, and Dawson's objection is SUSTAINED. Dawson obj ects to the following question and answer: "Q. Mr. Striplin, my name is Patrick O'Cain. I'm a lawyer for Helena Chemical Corporation. You and I have not met before today; correct? A. Correct." [92:8--11]. The Court finds that this testimony is irrelevant, and Dawson's objection is SUSTAINED. BASF objects to a question and answer regarding whether Striplin was told by a Helena employee that he bad to sign a waiver or release in order to usc Outlook. [123:3--8]. The Court finds that this testimony is irrelevant, and BASF's objection is SUSTAThED. IBASF objects that its counsel's objections in the testimony should be removed. [129:18, 20--21, 23]. BASF's objection is SUSTAINED. BASF objects that several questions are leading and confusing. [133:5--21]. BASF's objection is OVERRULED. BASF objects that a question from Dawson's counsel "mischaracterizes prior testimony and [is] argumentative." [137:21--138:1]. The Court finds that Striplin testified previously that the potatoes he observed in the fields treated with Outlook were "obnoxiously large," "with pencil-like tubers," and "so crooked and deformed that OVERRULED. BASF objects to a leading question that was not answered, but was restated and then answered. [141:9--12]. 10
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just looked strange, very strange." [134:16--20].

BASF's objection is

BASF's objection is SUSTAINED. Dawson objects to questions regarding whether Striplin was aware of die yields for number 1-size sweet potatoes in fields treated with Outlook compared to theyields in fields treated with Dual the previous year and whether he would be surprised if the yields in fields treated with Outlook were higher. [151:1--15]. The Court finds that Striplin's response is relevant to evaluating his prior testimony. Dawson's objection is OVERRULED. Dawson objects to questions regarding whether Striplin understood that the grower is ultimately responsible for the products that are used, including the rate and manner in which the products are used. [151:16--23]. It is unclear to the Court whether Striplin's responses state a legal opinion regarding fault or his personal opinion that the grower ultimately controls die application of the product. Therefore, to avoid confusion to the jury, Dawson's objection is SUSTAINED. Dawson objects to the following question "Q.
. . .

[w]hether or not Helena pointed anything

out from die Outlook supplemental label or a Dual label or any other label, you were frilly reading those labels yourself to come up with--? A. Yes." [15 1:24-152:9]. The Court finds that this question and answer refer to Striplin' s personal practice, not a legal opinion regarding whether a Helena employee or someone else orally modified the label's instructions. Dawson's objection is OVERRULED. XIX. DEPOSITION OF DR. DAN ERIC WESTERIJERG BASF objects to a large portion of Dr. Dan Eric Westerberg's ("Westerberg") testimony regarding the 2005 email sent from Dr. Evans to Westerberg and several other BASF employees 11

about the process for registering Outlook for sweet potato use. [71:13--75:15,78:2--21,93:14-95:16, 96:4--97:3, 98:10--101:5, 101:14-102:25, 108:4--109:24]. For the reasons cited previously, BASF'S objection is SUSTAINED IN PART and OVERRULED IN PART, and only the following testimony is admissible: 72:6--21, 73:4--5, 73:14--74:10, 75:7--15, 94:13--95:16, 96:4--97:3, 98:10--99:25, 100:11--101:5, 101:14--102:3, 102:7--9, 102:12--25, 109:18--24. BASF objects to counsel communications and/or non-pertinent witness responses. [21:15--17]. BASF's objection is SUSTAINED. X. CONCLUSION For die foregoing reasons, Dawson's and BASF's obj ections to designated trial depositions are SUSTAINED IN PART and OVERRULED IN PART. MONROE, LOUISIANA, this_____ day of February, 2009.

ROBERTO. JAM S UNITED STATES DIS

T JUDGE

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