By: Brian D. Kaider, Esq
Chemical drift, the movement of herbicide/pesticide to unintended areas from the site of application, is a continuing problem in many farming areas, including vineyards. In the Nov/Dec 2019 issue of The Grapevine Magazine, Judit Monis and I wrote an article (https://thegrapevinemagazine.net/2019/11/herbicide-drift-a-common-issue-affecting-vineyards-worldwide/) describing how herbicide drift affects vineyards and some of the legal causes of action that may be available to those who have suffered damage to their crops
In the July/August issue, another article (https://thegrapevinemagazine.net/2020/06/liability-coverage-for-chemical-drift/) addressed insurance coverage for herbicide drift. This article will focus on litigation of these cases, including the types of evidence needed to pursue or defend against the claims. As with any legal issue, the details will vary from state to state and from case to case, depending upon the facts. So, this article is not intended to convey legal advice, but rather to provide background information of the types of issues that may arise.
To frame the discussion, we will discuss a hypothetical case in which Victoria is the owner of a vineyard who discovers damage to her vines, such as distorted leaves, defoliation of some vines, and damaged fruit. She believes a neighboring farmer, Stephen, applied an herbicide to his soybean fields, which are adjacent to Victoria’s vineyard, that damaged her vines. As a first step, Victoria should look to her own insurance policy to see if damage caused by third parties is covered. If so, and if the policy covers the extend of the damage to her property, Victoria’s best option may be to simply file a claim with her insurance. Assuming that not to be the case, Victoria may need to file a lawsuit.
Before going to court, Victoria has to have a reasonable basis for alleging that Stephen is responsible for the damage to her vineyard. So, when she speaks with her attorney, the litigation process begins with a “pre-suit” investigation. Because the effects on her plants are likely to change over time, it is critical that Victoria start to document the damage as soon as she notices it. She should take photographs and detailed notes about the condition of her vines, the location and extent of the damage on her property, as well as weather and environmental conditions, and she should update this information regularly. If she has any knowledge or reason to believe that Stephen applied an herbicide to his soybean fields prior noticing the damage to her vines, she should document that information as thoroughly as possible.
Causation is always an issue in these cases. Victoria will have to show that it was Stephen’s chemical application that caused the damage to her vines. So, she should also attempt to collect data that would rule out any other cause of the damage. For example, she should have thorough documentation of all chemicals that she has applied to her own property, she should note the location of farms other than Stephen’s in the area, whether she has seen them apply chemicals, and what the prevailing wind patterns are in her area. She should also take samples from her vines to be sent for analysis to determine, if possible, to which herbicide(s) the vine has been exposed.
Once the pre-suit investigation is complete and there is a reasonable basis to assert that Stephen caused the damage to her crop, Victoria’s attorney will prepare a Complaint and file it in the relevant court. This begins the official litigation process.
When Stephen receives the complaint, he will have a certain amount of time to respond, typically with an Answer to the Complaint. As his attorney begins to prepare the Answer, he will need to begin collecting information, as well, including documentation of the time, place, and manner of all chemicals he has applied to his land.
The vast majority of all lawsuits settle out-of-court rather than reaching trial. While the parties may reach settlement at any time, there are three points at which it is most common. The first is during the Complaint/Answer stage. At this point, the parties have not expended a great deal of money on the litigation process and if it is very clear which party is in the wrong or if the damages are not substantial compared to the cost of litigating, it is often prudent to settle at this stage. If the parties do not settle, the case will proceed to the “discovery” phase, and things get expensive very quickly.
Discovery is the process by which the parties seek information from one another in order to evaluate the strength of the claims and defenses and to obtain evidence they will use at trial. There are four main forms of discovery: document requests, interrogatories, requests for admission, and depositions. Document requests, as the name suggests, is the process of asking the other party for documents or other tangible evidence. Interrogatories are written questions that the other party has to answer in writing. Requests for admission present a series of statements and require the other party to admit or deny the truth of those statements. And depositions are a process where a person is placed under oath and asked questions to which they must respond on-the-spot. There is typically a court reporter there taking a transcript of the questions and answers and they are often videotaped, as well. All four of these processes take a tremendous amount of attorney time and are, therefore, very costly. Discovery is often the most expensive part of a lawsuit.
Whether the case involves negligence, strict liability, trespass, and/or nuisance, there are several issues that will almost certainly arise in discovery. As the plaintiff, some of the materials that Victoria should request include:
• documentation of the time, place, and manner of all chemical applications on Stephen’s land, including the type of chemical, who applied it, how it was applied, the quantity, and the environmental conditions at the time of application
• copies of the labels and/or package inserts for the chemicals
• information about crop buffer zones or setbacks on Stephen’s property and/or request permission to inspect the property to measure these areas
• a copy of any and all insurance policies that cover Stephen’s land
In preparation of his defense, Stephen will not only want to seek information that undermines the case against him, but also evidence that supports his affirmative defenses and/or counterclaims. He will want, for example:
• documentation of all chemical applications on Victoria’s land
• all information Victoria has on chemical applications by third parties not in the case
• historical records about the health of Victoria’s vines and crop yields from prior years
• detailed accounting of the number of allegedly affected vines and their condition
• documentation of Victoria’s current and previous irrigation practices
• documentation of insects or other pests on the land in current and prior years
• any other information that could suggest that the damage to Victoria’s crops was caused by something other than Stephen’s chemical application
• documentation of any and all tests Victoria has had conducted on her vines before or after the commencement of the litigation
Discovery may also involve the services of experts. Both sides may use experts to support or refute the theory that the damage to Victoria’s crops was caused by Stephen’s chemicals. Each expert may submit a written report and is then likely to be deposed in order to try to undermine or discredit that report.
The court will set a specific time period during which discovery must occur. When that window closes, there is generally no more exchange of evidence between the parties. This is the second point in which it is common to settle the case. Each side is then in full possession of all of the evidence that may be presented. Often it becomes clear from discovery that one side’s position has significant weaknesses and is likely to lose if the case goes to trial. Since it will still require a significant investment of time and money to see the case to the end, it makes sense in that instance to reach settlement between the parties.
If again the parties do not settle, they will begin to prepare for trial. Typically, this involves a variety of written motions asking the court to rule on certain issues in the case. There may be summary judgment motions requesting that the court rule in a party’s favor as a matter of law. One or more parties may file evidentiary motions seeking to exclude certain information from the judge or jury’s consideration. There are also many procedural issues for the court to decide, such as what instructions will be given to the jury, how much time each party will be allowed to present its case, etc. Depending upon the outcome of these various issues, a third opportunity to settle the case often presents itself just before trial. For example, if the court rules that a key piece of one party’s evidence is inadmissible, that party may be more inclined to throw in the towel.
Of course, if the parties still do not settle, the case will then go to trial. Litigation is not to be entered into lightly. The costs for each party to take a case all the way to trial will almost certainly reach six figures and, for more complicated matters, could reach seven.
As always an ounce of prevention is worth a pound of cure. If you are applying herbicides to your property, there are several precautions that can help keep you from affecting neighboring properties and exposing yourself to legal liability. First, examine the surrounding properties to identify potentially vulnerable crops. Some states even have listings of vulnerable crops that may help guide your choices. Second, make sure you fully understand the chemicals you are applying and what crops may be adversely affected. The University of Kentucky has a great resource website to cross reference herbicides, what weeds they affect, and which crops are vulnerable or resistant to the herbicide (https://www.uky.edu/Ag/Horticulture/masabni/xreflist.htm). Third, when applying chemicals, be sure to follow the manufacturer’s instructions to the letter and document everything, including date, time, volume of chemical, manner of application, and environmental conditions.
Brian Kaider is a principal of KaiderLaw, an intellectual property law firm with extensive experience in the craft beverage industry. He has represented clients from the smallest of start-up breweries to Fortune 500 corporations in the navigation of regulatory requirements, drafting and negotiating contracts, prosecuting trademark and patent applications, and complex commercial litigation.
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