United States District Court, District of Columbia
SEGAL HUVELLE UNITED STATES DISTRICT JUDGE.
over two thousand Ecuadorian citizens, allege that airplanes
sprayed them and their property with the herbicide glyphosate
during an anti-drug fumigation campaign conducted by an
American company, defendant DynCorp, in consultation with the
U.S. Department of State. Two separate cases-Quinteros v.
DynCorp, Case No. 07-cv-1042 and Arias v.
DynCorp, Case No. 01-cv-1908-have been consolidated in
this litigation, and the claims of twenty test plaintiffs
selected for initial adjudication. After the D.C. Circuit
remanded the case with only three claims remaining (battery,
intentional infliction of emotional distress (IIED), and
nuisance), Arias v. DynCorp, 752 F.3d 1011 (D.C.
Cir. 2014), it was reassigned to this Court.
now move for summary judgment as to the twenty test
plaintiffs' three remaining common law claims, and ask
that the Court's decision bind the other 1, 998 non-test
plaintiffs. (Defs.' Motion for Summary Judgment, December
14, 2014 [Quinteros ECF Nos. 362 (Redacted) &
363 (SEALED); Arias ECF Nos. 414 (Redacted) &
415 (SEALED)] ("Defs.' Mot.").)
following reasons, the Court grants the Motion in part and
denies it in part.
the late 1990s, the United States and Colombia have
cooperated in a program known as "Plan Colombia, "
which includes a variety of policies designed to combat
Colombian drug cartels. The Department of State hired DynCorp
to help eradicate Colombian cocaine and heroin poppy
plantations by using airplanes to spray aerial fumigants over
Colombian drug farms. See Arias v. DynCorp, 856
F.Supp.2d 46, 49 (D.D.C. 2012). According to plaintiffs,
however, the planes also released a "fumigant that is
harmful to humans, animals, and plants other than cocaine and
opium poppies" onto plaintiffs' lands in the
Sucumbios province of Ecuador, near the border with Colombia.
September 11, 2001, plaintiffs filed a putative class action
on behalf of all Ecuadorians who lived within ten miles of
the Colombian border. (See Compl. [Arias
ECF No. 1] ("Arias Compl.").) The
Arias plaintiffs allege that glyphosate drifted
across the border from Colombia and landed on their
properties and bodies, and that the planes themselves
actually crossed the border into Ecuador and sprayed
individuals from directly overhead. In 2006 and 2007,
additional cases were filed in the Southern District of
Florida, on behalf of individuals now referred to as the
"Quinteros Plaintiffs." Those cases were
transferred to this district on May 23, 2007, where they were
consolidated with the Arias lawsuit and assigned to
then Chief Judge Richard Roberts. At that point, over three
thousand plaintiffs became active participants in the
consolidated litigation, and the Arias plaintiffs
dropped their class action demand. (First Am. Compl, March
24, 2008 [Arias ECF No. 66].)
the enormous number of plaintiffs, the district court pursued
a test plaintiff case management framework to facilitate
global resolution. In November 2007, plaintiffs proposed
twenty individuals for a first phase of adjudication,
including sixteen adults and four minors. (See Joint
Rule 16.3 Statement, Nov. 19, 2007 [Quinteros ECF
No. 19].) The parties then proceeded to conduct fact and
expert discovery targeting the claims of the twenty test
plaintiffs, which closed in May 2011.
2013, the district court granted summary judgment in favor of
defendants. Arias v. DynCorp, 928 F.Supp.2d 1
(D.D.C. 2013). Plaintiffs appealed. The D.C. Circuit affirmed
the dismissal of all claims for personal injury and property
damages, due to plaintiffs' failure to substantiate them
with expert testimony as to general causation; however, it
also found that expert testimony was not necessary to
substantiate the three common law claims that do not depend
on demonstrations of physical harm: battery, IIED, and
nuisance. Arias v. DynCorp, 752 F.3d 1011, 1018
(D.C. Cir. 2014). Following remand, the post-appeal case is
considerably narrower, consisting of 2, 018 plaintiffs
(including the group of test plaintiffs) and three remaining
common law claims.
moved for summary judgment as to the plaintiffs'
remaining three common law claims on December 15, 2014. On
March 2, 2016, plaintiffs filed their Opposition, including a
notification that test plaintiff Edgar Sandoval had recently
died. (Pls.' Opposition to Mot., March 2, 2015
[Quinteros ECF No. 365, Arias ECF No. 417]
at 2 n.2 ("Pls.' Opp.").)Defendants then
filed a motion on March 11, 2016, seeking leave to amend
their Answer to add a statute of limitations defense.
(See Motion to Reinstate the Defendants' August
11, 2011 Motion for Leave to Amend Their Answer to the
Quinteros Plaintiffs' First Amended Consolidated
Complaint [Quinteros ECF No. 366].) Defendants'
Reply in Support of their Motion for Summary Judgment was
filed on April 16, 2016. After this Court was reassigned the
Arias-Quinteros case on April 6, 2016, it held a
Motions Hearing on July 15, 2016.
STANDARD OF REVIEW
judgment is appropriate when a party fails to "make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the
party seeking summary judgment informs the court of the basis
for its motion and identifies those parts of the record that
demonstrate the absence of a genuine issue of material fact,
id, at 323, the burden shifts to the nonmoving
party, who must offer more than a "mere .. . scintilla
of evidence" to support its claims. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
"Although the finder of fact may draw inferences from
the evidence, they must be reasonably probable and based on
more than speculation." Rogers Corp. v. EPA,
275 F.3d 1096, 1103 (D.C. Cir. 2002) (internal citation and
quotation marks omitted). "The summary judgment standard
requires that the Court construe the facts and make all
inferences in the plaintiffs' favor, but it does not
command the Court to credit as true naked assertions lacking
any basis in the record." Ross v. DynCorp, 362
F.Supp.2d 344, 361 (D.D.C. 2005).
ADJUDICATION OF TEST PLAINTIFFS' CLAIMS
recent death of Edgar Sandoval (and plaintiffs' failure
to submit a Rule 25 motion within ninety days of notification
of death) leaves nineteen test plaintiffs. As an initial
matter, the Court considers whether adjudication of these
nineteen test plaintiffs' claims affects the prospects of
the other 1, 998 non-test plaintiffs. Defendants argue that
these non-test plaintiffs have consented to be bound by the
Court's findings as to the legal sufficiency and
timeliness of the test claims. Defendants are not simply
suggesting that adjudication of the test claims extends to
common issues impacting general liability and causation.
Instead, they insist that all rulings-from the timeliness of
a test plaintiffs cause of action (Defs.' Mot. at 22-24),
to specific causation, damages, and case-by-case details such
as whether DynCorp's herbicide contacted the skin of a
test plaintiff (id. at 3, 13, 19-20) have the power
to extinguish thousands of non-test plaintiffs' causes of
such an extraordinary arrangement did not already strike the
Court as implausible and unfair, if not unconstitutional, the
Court also cannot find any evidence of its existence in the
record. When asked at oral argument to provide the Court with
specific evidence that Judge Roberts had intended such an
unprecedented framework, defense counsel was unable to do so.
(See Oral Argument, July 15, 2016, Tr. at 24.) On
the contrary, it appears that the perfectly reasonable
purpose of this case management plan was to adjudicate the
factual sufficiency of a group of test claims prior to
subjecting thousands of other claims to discovery, summary
judgment briefing, and trial. The court discussed the test
plaintiff approach at a status conference in 2008, noting its
purpose was "to give everybody a broad idea of what we
have." (Pls.' Opp., Ex. A, Nov. 25, 2008, Tr. at
27-28.) The court encouraged the parties to select some kind
of sample to "narrow[ ] down the number of... test
trials or identify[ ] in some realistic way what playing
field [they] should be on with respect to potentially
discussing ...global settlement." (Id. at 28.)
At ¶ 2009 status conference, the court advised
plaintiffs to select a "mix" of strong and weak
cases to avoid any delay in "see[ing] how the weak cases
play out and what impact that may eventually have on any
theoretical settlement discussions." (Pls.' Opp, Ex.
B, July 17, 2009, Tr. at36.) Then, at ¶ 2010 status
conference, the court again clearly indicated that the test
plaintiff group would be litigated first:
The aim has been in this . . . litigation to identify a test
group of plaintiffs and to prepare the cases potentially for
trial... and then once the results of the trial are in
for the test group of plaintiffs, allow those results to
inform the future direction of case efforts, be it
toward settlement or ... for additional trials.
(Id., Ex. C, Apr. 30, 2010 Tr. at 4:3-10 (emphasis
added).) Following the establishment of this framework,
DynCorp narrowed its discovery efforts to focus on the test
plaintiffs. No non-test plaintiffs were deposed.
appears that Judge Robert's intent was simple and
unremarkable for this type of mass toxic tort case: to
litigate the claims of a group of test plaintiffs in the
hopes of facilitating a global resolution for the remaining
extending the resolution of individual issues to bind non
test-plaintiffs would be contrary to law. Certainly, there
are numerous examples of courts using "bellwether"
plaintiffs to resolve common issues of liability and general
causation, but binding large populations of plaintiffs to the
prospects of a test group on issues like timeliness and
damages would strain the limits of due process. See In re
Chevron USA, 109 F.3d 1016, 1017 (5th Cir.
1997) (in oil spill case with over three thousand plaintiffs
and 30 test plaintiffs, only general causation and common
liability issues may bind non-test plaintiffs); Allen v.
U.S., 527 F.Supp. 476, 490 (D. Utah 1981) (rejecting
"wholesale" timeliness determination for hundreds
of plaintiffs and holding that "[e]ach individual
plaintiff... is lawfully entitled to an individualized
determination of the statute of limitations issue");
Fisher v. Ciba Specialty Chemicals Corp., 238 F.R.D.
273, 309 (S.D. Ala. 2006) (agreeing with DynCorp defendants
that their "limitations defense weighs against class
certification because of its individual-specific
the Court's present task is limited to evaluating
defendants' Motion with respect to the claims of the
nineteen remaining test plaintiffs selected by the parties.
STATUTE OF LIMITATIONS
argue that the adult test plaintiffs' remaining common
law claims are barred by the applicable statutes of
limitations for Battery, IIED, and Nuisance. (Defs.' Mot.
at 20.) Plaintiffs counter that defendants have forfeited
their statute of limitations defense by not pleading it as an
affirmative defense in any of the five separate Answers and
Amended Answers it has filed in this consolidated litigation.
(See Answer, August 29, 2007 [Arias ECF No.
54]; Amended Answer, Oct. 15, 2007 [Arias ECF No.
57]; Answer to Amended Compl., March 31, 2008,
[Arias ECF No. 67]; Answer, Sept. 28, 2007
[Quinteros ECF No. 16; Answer to Amended Compl.,
April 14, 2008 [Quinteros ECF No. 24].)
in civil litigation, a statutory time limitation is forfeited
if not raised in a defendant's answer or in an amendment
thereto." Day v. McDonough, 547 U.S. 198, 202
(2006). The D.C. Circuit has made clear that "Rule 8(c)
means what it says: a party must first raise its affirmative
defenses in a responsive pleading before it can
raise them in a dispositive motion." Harris v.
Secretary, U.S., Dep't of Veterans Affairs, 126 F.3d
339, 345 (D.C. Cir. 1997) (emphasis added); Fed.R.Civ.P.
8(c)(1) (responsive pleadings "must affirmatively state
any . . . affirmative defense, including .. .statute of
limitations"). The pleading requirement of Rule 8(c)
"gives the opposing party notice of the defense of
untimeliness and permits the party to develop in discovery
and to argue before the District Court various responses to
the affirmative defense." These responses could include,
for example, "facts and legal arguments that require the
tolling of the statute, whether by action of law, by
agreement of the parties, or by equitable means."
Id. at 343. Rule 15 provides a mechanism whereby a
party who has failed to plead an affirmative defense may cure
his error. "In the absence of any apparent or declared
reason-such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc.-the leave sought should, as the
rules require, be freely given." Foman v.
Davis, 371 U.S. 178, 182 (U.S. 1962).
discussed above, the procedural history of this case is not
typical. About four years after filing their initial Answer
in the Quinteros case, and following the close of
discovery in May 2011, defendants first sought leave to amend
it to include a statute of limitations defense on August 11,
2011. Plaintiffs opposed the motion on multiple bases,
including the fact that a statute of limitations defense
would prejudice them, requiring additional fact-gathering as
to equitable tolling theories after discovery had already
closed. Defendants' only real explanation for their delay
was that they had only recently learned the dates when the
twenty test plaintiffs had alleged injuries from deposition
testimony. (Defs.' Reply in Support of Motion Seeking