The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER RE MOTION IN LIMINE TO EXCLUDE TESTIMONY PRECLUSION DECISION INCONSISTENT WITH
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.
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 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 non-bellwether 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 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.*fn1
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 "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 ...