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Burns v. Universal Crop Protection Alliance

September 25, 2007


The opinion of the court was delivered by: Susan Webber Wright United States District Judge


Eighty-two cotton farmers bring this diversity action against five herbicide manufacturers under theories of strict liability, negligence, breach of implied warranty, and violation of the Arkansas Deceptive Trade Practices Act. Plaintiffs claim that their 2006 cotton crops suffered damage from exposure to Defendants' herbicides containing dichlorophenoxyacetic acid ("2,4-D"). Before the Court is Defendants' motion for adoption of a Lone Pine order (docket entry #49), Plaintiffs' response in opposition (docket entry #59), and Defendants' reply (docket entry #61). After careful consideration, and for the reasons that follow, the motion will be granted.

Defendants request a Lone Pine order, named for Lore v. Lone Pine Corp., 1986 WL 637507, No. L-33606-85 (N.J. Super. Ct.1986). Lone Pine orders, issued pursuant to a trial court's discretion over case management, typically require Plaintiffs to substantiate certain elements of their claims through expert affidavits before they may proceed with discovery.

For example, in Acuna v. Brown & Root Inc., 200 F.3d 335 (5th Cir. 2000), the Fifth Circuit approved the use of Lone Pine orders where approximately 1,600 plaintiffs sued over 100 defendants for injuries allegedly caused by the defendants' uranium mining activities. The district court issued pre-discovery scheduling orders that required expert affidavits specifying the injuries or illnesses suffered by each plaintiff, the materials or substances causing the injury and the facility thought to be their source, the dates or circumstances and means of exposure to the injurious materials, and the scientific and medical bases for the expert's opinions. Acuna, 200 F.3d at 338. In approving the trial court's pre-discovery orders, and the trial court's dismissal of the plaintiffs' claims for failure to comply with the orders, the Fifth Circuit stated:

It was well within the court's discretion to take steps to manage the complex and potentially very burdensome discovery that the cases would require. The scheduling orders issued below essentially required that information which plaintiffs should have had before filing their claims pursuant to Fed. R. Civ. P. 11(b)(3). Each plaintiff should have had at least some information regarding the nature of his injuries, the circumstances under which he could have been exposed to harmful substances, and the basis for believing that the named defendants were responsible for his injuries. The affidavits supplied by plaintiffs did not provide this information. The district court did not commit clear error or an abuse of discretion in refusing to allow discovery to proceed without better definition of plaintiffs' claims.

Acuna, 200 F.3d at 340-41.

In this case, Plaintiffs allege that between June 18 to July 13, 2006 "in aggregate, tens of thousands of pounds of Defendants' 2,4-D products" were applied to rice crops in northeast Arkansas, west of Crowley's Ridge. Docket entry #1, ¶108. Plaintiffs allege that following the applications of 2,4-D, "a portion" of Defendants' 2,4-D products drifted east across Crowley's Ridge and caused damage to cotton crops located in a large area covering Clay, Green, Craighead, and Poinsett Counties.*fn1 Plaintiffs allege that beginning July 6, 2006, over 100 cotton farmers in the aforementioned counties filed complaints with the Arkansas State Plant Board ("ASPB") related to 2,4-D injury to their crops.

Defendants assert that many variables including temperature, wind speed, filed location, aircraft speed, and use of drift control products are pertinent to the causation issue in this case and will require "extraordinarily extensive third-party discovery, which will be burdensome not only to the Court and parties but also to the numerous third parties from whom discovery will be sought." Defendants contend that under the circumstances, the Court should require Plaintiffs to present evidence showing "which, if any, of the Defendants' products came into contact with each Plaintiff's 2006 cotton crop."

Defendants have proposed a case management order that would require the following:

1. Within 45 days from entry of the case management order, Plaintiffs provide affidavits from fact or expert witnesses that include the following information:

* Separately for each Defendant's product at issue, the date, location, and amount of each product application at issue and the name of the applicator.

* Separately for each Plaintiff, the location and acreage of each cotton field claimed to have been injured by one or more of Defendant's products in 2006.

* Separately for each cotton field identified, the manufacturer, distributor and brand name of each product allegedly transported to said field and the location from which the product was allegedly transported.

* The facts supporting Plaintiffs' claim that each Defendant's product was transported to Plaintiffs' cotton fields, including any testing ...

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