The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The Court has before it Dupont's motion to establish the preclusive effect of the bellwether trial, the BLM's partial joinder in that motion, and the plaintiffs' motion for attorney fees and costs. The Court held oral argument on the motions, and took them under advisement. For the reasons expressed below, the Court will give preclusive effect to certain issues described below, and will reserve ruling on the merits of plaintiffs' request for fees and costs until the final trial is concluded.
Legal Standard for Preclusion
Issue preclusion prevents a party from re-litigating an issue decided in a previous action if four requirements are met: (1) there was a full and fair opportunity to litigate the issue in the previous action; (2) the issue was actually litigated in that action; (3) the issue was lost as a result of a final judgment in that action; and (4) the person against whom collateral estoppel is asserted in the present action was a party or in privity with a party in the previous action. Kendall v. Visa U.S.A. Inc., 518 F.3d 1042, 1050 (9th Cir. 2008). The burden to prove each of these elements is on the party seeking to rely upon issue preclusion. Id. at 1050-51.
Prior Decisions on Preclusion
Prior to trial in this case, the Court issued two decisions on preclusion. See Memorandum Decisions Dkts. 272 & 1047. In each, the Court noted that a final decision on preclusion must await the trial, but the Court did offer guidance to counsel to assist them in their trial presentation. It is important to review this history because it shows the notice all parties had going into the bellwether trial as to what issues might be accorded preclusive effect.
In the first decision, filed August 1, 2007, the Court held that this case would proceed to a "bellwether trial with preclusive effect." The Court reasoned that the large number of plaintiffs made unworkable a single trial on all issues. Instead, the Court decided to select a small representative sample -- the bellwether plaintiffs -- and proceed to trial on their claims. To avoid wasteful repetition, the Court held that common issues resolved in the first trial would be given preclusive effect in subsequent trials.
As examples, the Court listed issues involving both causation and liability. The Court stated that "[l]ikely candidates" for preclusion could include answers to the following questions: (1) Was DuPont negligent in its design, manufacture, testing, labeling, and marketing of Oust?; (2) Was the BLM negligent in selecting Oust for this project?; (3) Is Oust capable of causing crop damage and, if so, under what conditions; and (4) What was defendants' awareness of these conditions?
The Court broke down further the causation issues that appeared amenable to preclusive treatment. They included, (1) the amount of Oust necessary to damage crops; (2) the length of time that Oust remains viable in the soil; (3) how Oust works on plants to cause damage; (4) the winds necessary to transport Oust;
(5) the sensitivity of various crops to Oust; and (6) the symptoms of Oust damage. Finally, the Court noted that "resolution of these issues does not relieve plaintiffs of the requirement to prove that Oust caused the damage alleged by each and every plaintiff."
In a second decision filed about two years later on May 4, 2009, the Court refined its earlier analysis. The Court observed that liability issues were candidates for preclusion with two exceptions: (1) the fraud claim in Count 15 that requires individual proof on whether a particular plaintiff heard and relied upon the alleged misrepresentation, and (2) the trespass claim that appears to require individual proof of trespass onto the farms of each plaintiff. The Court noted that "[t]he liability findings on the other 13 claims in the case -- whether based on negligence, negligence per se, strict liability, or misbranding -- will almost certainly be given preclusive effect." See Memorandum Decision Dkt. 1047 at p. 4.
With regard to causation issues, the Court held that there was a distinction between general causation issues, that apply to all plaintiffs, and specific causation issues, that must be proved by each plaintiff. The Court observed that in analogous cases involving toxic torts, causation "is typically discussed in terms of generic and specific causation." See In Re Hanford Nuclear Reservation Lit., 292 F.3d 1124, 1133 (9th Cir.2002). General or generic causation means "whether the substance at issue had the capacity to cause the harm alleged." Id. In Hanford, for example, the Ninth Circuit explained that the general causation inquiry was "whether exposure to a substance for which a defendant is responsible, such as radiation at the level of exposure alleged by plaintiffs, is capable of causing a particular injury or condition in the general population." Id.
To ultimately prevail in such a lawsuit, however, a plaintiff must show both general and "individual" or "specific" causation. Id. Specific causation refers to whether a particular individual suffers from a particular ailment as a result of exposure to a substance. Id. "Although many common issues of fact and law will be capable of resolution on a group basis, individual particularized damages still must be proved on an individual basis." Id. at 1135 (quoting Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1200 (6th Cir.1988)).
In this case, the Court noted, general causation issues would include (1) the amount of Oust necessary to damage crops; (2) the length of time that Oust remains viable in the soil; (3) how Oust works on plants to cause damage; (4) the winds necessary to transport Oust; (5) the sensitivity of various crops to Oust; and (6) symptoms of Oust damage. The Court found it likely that "the resolution of these issues will apply to all plaintiffs and will not be subject to change due to variation in individual circumstances." Id. at p.7.
Going further, the Court stated that it "envisions that the first jury will be asked to find whether Oust was or was not transported by wind-blown dust to areas outside of the application area and whether such wind-blown dust is capable of damaging crops in down-wind locations." Id. at p. 7. The Court signaled its intent that if those questions were answered in the affirmative -- as they eventually would be by the jury -- the answers would "have preclusive effect on the defendants and will be an established fact for all future trials." Id. The Court explained that "[t]he only causation question remaining for subsequent juries is whether the Oust-contaminated dust settled on the non-bellwether plaintiffs' fields and whether it damaged their crops." Id.
The Court refused "to go further and establish in this bellwether trial a 'zone of contamination' that would extend beyond the location of any specific crops that this jury finds were damaged by Oust." Id. at pp. 7-8. The Court explained its refusal as follows:
To establish such a zone would extend this trial immensely. The evidence would have to establish with precision boundaries of the "zone" and, within it, the toxicity of Oust border-to-border. The "zone" would include areas and crops that are not even at issue in this bellwether trial. And how many years will such a "zone" last? By the second or third year after application -- years for which plaintiffs claim damages -- different sections of land within any "zone" may have been treated, tilled, and worked much differently than other sections of land within the "zone." In other words, individual variations matter -- establishing a "zone" under those circumstances would deprive defendants of their right to require plaintiffs to prove specific causation.
At the conclusion of the bellwether trial, the jury completed a 21-page Special Verdict Form, answering 47 questions. See Special Verdict Form (docket no. 1446). The jury found against DuPont on both liability and causation questions. The Court issued Findings of Fact and Conclusions of Law, containing a mixed bag of rulings both for and against the BLM. See Findings and Conclusions (docket no. 1681). The jury allocated fault 60% to DuPont and 40% to the BLM, and the Court made the same finding as against the BLM.
Liability Preclusion and the BLM
The plaintiffs and the BLM agree that certain liability findings must be given preclusive effect. With regard to liability findings in favor of plaintiffs, the parties agree to give preclusive effect to findings that the BLM was negligent in its selection of Oust and the application sites. With regard to liability findings in favor of the BLM, the parties agree to give preclusive effect to findings that (1) the BLM did not violate the IPCA; (2) the BLM did not violate FIFRA; (3) the BLM did not negligently fail to follow the Oust label; and (4) the BLM did not negligently supervise the applicators. Pursuant to these agreements, the Court will give preclusive effect to these findings.
The BLM agrees with plaintiffs that the allocation finding -- allocating 60% of the fault to DuPont and 40% to the BLM -- should be given preclusive effect.
DuPont disagrees, and the Court will resolve this issue below in the section dealing with DuPont. The Court will also discuss later in this opinion the concerted action claim, in which plaintiffs claim that the BLM and DuPont are jointly and severally liable.
The parties disagree over the preclusive effect to be given the findings that
(1) the BLM violated the Idaho nuisance statute, and (2) that the BLM committed a trespass on the growers. The BLM argues that these findings have no preclusive effect, while plaintiffs respond that they are entitled to a partial preclusive effect.
Idaho Code § 52-101 states in relevant part: "Anything which is injurious or any obstruction to the free use of property, so as to interfere with the comfortable enjoyment of . . . property . . . is a nuisance." The Court's Findings and Conclusions held that (1) a nuisance claim can give rise to FTCA liability;
(2) BLM's application of Oust was injurious or obstructed the bellwether plaintiffs' free use of property so as to interfere with the comfortable enjoyment of property; (3) the BLM's interference with the bellwether's property was substantial; (4) the BLM's conduct was intentional; (5) the BLM's conduct was negligent or wrongful under all of the circumstances; and (6) the BLM engaged in a course of conduct that unreasonably interfered with the growers' enjoyment of their property.
The findings entitled to preclusive effect are (1), (4), and (5). Those findings do not depend on the individual circumstances of particular plaintiffs. However, the other findings -- (2), (3), and (6) -- were unique to the four bellwether plaintiffs and thus cannot be accorded preclusive effect.
A "trespass" involves the "wrongful interference with the right of exclusive possession of real property." Mock v. Potlatch Corp., 786 F.Supp 1545, 1548 (D. Idaho 1992); Moon v. North Idaho Farmers Ass'n, 96 P.3d 637, 642 (Id.Sup.Ct. 2004). Trespass can give ...