United States District Court, District of Columbia
Natacha H. Thys, Terry P. Collingsworth, Conrad & Scherer, LLP, Washington, DC, William R. Scherer, III, Gregory R. Barthelette, Jeff L. Frazier, William J. Wichmann, Conrad & Scherer LLP, Fort Lauderdale, FL, Eric J. Hager, Conrad & Scherer, LLP, Ecuador, for Plaintiffs.
Eric Gordon Lasker, Joe Gregory Hollingsworth, Katharine R. Latimer, Rosemary Stewart, Hollingsworth LLP, Washington, DC, for Defendants.
MEMORANDUM OPINION AND ORDER
RICHARD W. ROBERTS, District Judge.
Plaintiffs, approximately 2,000 Ecuadorian citizens and domiciliaries, bring common law negligence and other tort claims
against the DynCorp defendants, alleging personal injury and property damage caused by the defendants spraying herbicides over the plaintiffs' lands in Ecuador. The defendants have moved for summary judgment, arguing that the plaintiffs have proffered no expert testimony to show the dose and duration of the plaintiffs' exposure to any herbicides or to show that such exposure caused the injury and damage. The plaintiffs counter that expert testimony is unnecessary where, as here, hundreds of eyewitnesses have testified that their exposure to the herbicides caused them to suffer symptoms that are consistent with the herbicide's known effects, and where an expert has corroborated certain of those claims. Because the plaintiffs failed to raise a genuine issue of material fact as to any injury to the plaintiffs' crops, livestock, and fish, but met their burden regarding general and specific causation as to their personal injuries, summary judgment will be granted in part and denied in part.
The Department of State (" DOS" ) hired the defendants to help eradicate Colombian cocaine and heroin poppy plantations. Arias v. DynCorp, 856 F.Supp.2d 46, 49 (D.D.C.2012). To carry out the mission, which was known as " Plan Colombia," the defendants' planes sprayed aerial fumigants over Colombian drug farms. However, the planes allegedly also unleashed a " fumigant that is harmful to humans, animals, and plants other than cocaine and opium poppies" onto the plaintiffs' lands in Ecuador. Id. (internal quotation marks omitted). These fumigations are alleged to have severely damaged the plaintiffs and their property and, as a result, forced those residing in the affected areas to flee. Id. The plaintiffs now bring common law tort claims and claims under the Alien Tort Claims Act against the defendants, all arising from injuries the fumigants allegedly caused.
The plaintiffs proffer as an expert " Dr. Michael Wolfson, an occupational and environmental health specialist[.]" Pls.' Opp'n to DynCorp's Mot. for Summ. J. Based on the Lack of Necessary Expert Test. (" Pls.' Opp'n" ) at 11. In his deposition, Wolfson " testified that Plaintiffs['] symptoms were consistent with those experienced after exposure to Glyphosate-containing herbicides" and that no " precise dose information" was necessary to reach that conclusion. Id. He also " testified that to a reasonable degree of medical certainty, Plaintiffs' exposure to the Plan Colombia Glyphosate-containing herbicides (" GBH" ) sprayed on or near the Plaintiffs' homes and farms ... caused their symptoms and increased their risk of developing certain cancers and non-Hodgkins Lymphoma." Id. at 34-35; see also Pls.' Opp'n, Ex. 1, Michael Wolfson Dep. (" Wolfson Dep." ) at 90:25, 91:1-6. However, Wolfson offered no expert opinion as to the specific amounts of herbicide-laden spray that may have drifted into Ecuador as a result of Plan Colombia, or the degree or duration of individual plaintiffs' exposure to such drift. Wolfson Dep. at 7:22-25, 8:1-6. Neither did Wolfson opine on the plaintiffs' claims of injury to their crops, animals, and fish. Defs.' Mot. for Summ. J. Based on the Lack of Expert Test. (" Defs.' Mot." ) at 6; see also Wolfson Dep. at 8:12-14, 9:9-12.
The test plaintiffs also have supplied " [eyewitness] accounts of their exposure to the spray and the symptoms they developed immediately or soon after the spraying [.]" Pls.' Opp'n at 16; see also id. at 34. For example, within two hours of having observed aerial spraying, Martina Bosquez Garcia and Edgar Balcazar Bravo experienced itching and burning sensations on the skin and in the nose and throat. Pls.'
Opp'n, Ex. 1, Martina Bosquez Garcia Dep. at 38:3-17; id. at Ex. 1, Edgar Balcazar Bravo Dep. at 42:4-10. All in all, between nine and eleven of the twenty test plaintiffs reported having experienced similar symptoms in the immediate aftermath of spray events. Pls.' Opp'n, Pls.' Stmt. of Material Facts, Pls.' Stmt. of Disputed Material Facts (" Pls.' SDMF" ) ¶ 4. To bolster these eyewitness accounts, the plaintiffs cite studies and evaluations conducted by the Ecuadorian Scientific Commission, [redacted] and Dr. Adolfo Maldonado, which reflect that the ecological " impacts on [Ecuadorian] properties [ ] ... [were] consistent with" the farmer's complaints, and that the vast majority of those residing in the affected areas were poisoned as a result of the spraying. Pls.' SDMF ¶ 9; Pls.' Opp'n at 35.
The DynCorp defendants' experts counter that the amount and type of herbicide drift to which the plaintiffs were exposed did not cause the alleged damage. Dr. Andrew Hewitt, an expert in the drift of aerial herbicides, concluded that " there ... could not have been any meaningful drift of Plan Colombia herbicide onto the farms of any of the ... test plaintiffs[.]"  Defs.' Mot. at 10; Defs.' Mot., Defs.' App. (" Defs.' App." ) (Andrew Hewitt Rpt. (" Hewitt Rpt." )) at 198. Dr. Robert I. Krieger, based upon his " background, training and experience in environmental, human and animal toxicology; risk characterization; and risk assessment" concluded that " [t]here is no scientific basis to conclude that the test plaintiffs' ...