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Arias v. DynCorp

United States District Court, District of Columbia

September 23, 2016

Venancio Aguasanta Arias, et al., Plaintiffs,
DynCorp, et al., Defendants. Nestor Ermogenes Arroyo Quinteros, et al., Plaintiffs,
DynCorp, et al., Defendants.



         Plaintiffs, 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.

         Defendants 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.").)

         For the following reasons, the Court grants the Motion in part and denies it in part.


         Since 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. Id.[1]

         On 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.[2] 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].)

         Due to 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.

         In 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.

         Defendants 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.").)[3]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.



         Summary 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).


         The 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.[4] 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 action.

         Even if 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 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.

         It thus 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 plaintiffs.[5]

         Moreover, 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 nature").[6]

         Accordingly, 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.


         Defendants 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].)

         "Ordinarily 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).

         As 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 ...

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