LYNCH, HOPPER, SALZANO & SMITH P. KYLE SMITH Hawaii Bar
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Case 1:12-cv-00231-LEK-BMK Document 766 Filed 06/24/14 Page 1 of 25 PageID #: 7895 LYNCH, HOPPER, SALZANO & SMITH P. KYLE SMITH Hawaii Bar No. 9533 970 N. Kalaheo, Ste. A301 Kailua, HI 96734 T:(808) 791-9555 LAW OFFICES OF GERARD JERVIS GERARD A. JERVIS Hawaii Bar No. 2490 354 Uluniu Street, Ste. A205 Kailua, Hawaii 96734 T: (808) 262-2828 Attorneys on behalf of Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF HAWAII JIM AANA et al., on behalf of themselves ) and all others similarly situated, ) ) CIVIL NO.: CV12 00231 –JMS BMK Plaintiffs; ) vs. ) ) PLAINTIFFS’ OPPOSITION TO PIONEER HI-BRED INTERNATIONAL, ) DEFENDANTS’ MOTION IN LIMINE INC., a DuPont Business and Iowa ) NO. 1 RE HEALTH EFFECTS; Corporation, GAY & ROBINSON, INC., a ) EXHIBITS 1- 8; DECLARATION OF Hawaii corporation; ROBINSON FAMILY PARTNERS, a general partnership ) KYLE SMITH; AND CERTIFICATE registered in Hawaii; and DOE ) OF SERVICE DEFENDANTS 1-10; ) ) Defendants. ) ) Case 1:12-cv-00231-LEK-BMK Document 766 Filed 06/24/14 Page 2 of 25 PageID #: 7896 TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................. 1 II. ARGUMENT… .................................................................................................................. 2 A. The Health Risks Associated with Pioneer’s Pesticide Use Are Intertwined with Dust Impacts and Relevant to the Nature of the Nuisance and Plaintiffs’ Use and Enjoyment of Their Homes ..................................................................................... 2 B. Judge Kurren Did Not Bar Discovery Into Health and Environmental Issues, He Barred Further Discovery ....................................................................................... 7 C. Plaintiffs’ Expert Reports are Directly Relevant to the Claims, Damages, and Defenses At Issue In this Case. .............................................................................. 9 1. The environmental and health aspects of Pioneer’s pesticide use are central to Plaintiffs’ claims ............................................................................................. 10 2. The environmental and health aspects of Pioneer’s pesticide use are central to Defendants’ defenses ...................................................................................... 12 3. The environmental and health aspects of Pioneer’s pesticide use impact Plaintiffs’ damages for property and injunctive relief .................................... 13 D. Rule 403 Does Not Bar Evidence of the Health Risks and Environmental Concerns Raised by Pioneer’s Pesticides ............................................................. 15 1. There is no unfair prejudice to Defendants ..................................................... 16 2. No confusion will result for the jury ............................................................... 16 3. The of trial is to resolve the issues in dispute, not ignore relevant evidence . 17 V. CONCLUSION ................................................................................................................. 18 ii Lynch Hopper Salzano & Smith Law Offices of Gerard Jervis Case 1:12-cv-00231-LEK-BMK Document 766 Filed 06/24/14 Page 3 of 25 PageID #: 7897 TABLE OF AUTHORITIES Cases Town of Mount Pleasant v. Van Tassell, 166 N.Y.S.2d 458 (N.Y.1957)( ......................................................................................... 12 Statutes & Other Authority 66 C.J.S. Negligence §23(d)(1966) ................................................................................................. 4 Hawaii Revised Statutes §149A-31 ........................................................................................ 10, 11 Hawaii Revised Statutes §149A-2 ................................................................................................ 11 Hawaii Revised Statutes §165-4 ................................................................................................... 12 Hawaii Revised Statutes § 508D-1 ............................................................................................... 14 iii Lynch Hopper Salzano & Smith Law Offices of Gerard Jervis Case 1:12-cv-00231-LEK-BMK Document 766 Filed 06/24/14 Page 4 of 25 PageID #: 7898 No person shall: …(2) use, store, transport or discard any pesticide or pesticide container in any manner that would have unreasonable adverse effects on the environment. Hawaii Revised Statute 149A-31. “Environment” includes water, air, land, and all plants and humans and other animals living therein, and the interrelationships that exist among these. Hawaii Revised Statute 149A-2. “Unreasonable adverse effects on the environment” means any unreasonable risk to humans or the environment, taking into account the economic, social, and environmental costs and benefits of the use of the pesticide. Hawaii Revised Statute 149A-2. I. INTRODUCTION Defendants’ Motion In Limine No. 1 asks the Court to exclude five expert opinions – sight unseen – because they address Pioneer’s use of pesticides and the human health and environmental risks posed by such chemicals. In support of their motion, Defendants notably fail to attach any of the five opinions they seek to exclude. Instead, they ask the Court to blindly base its decision on self-serving snippets taken out of context from discovery, Judge Kurren, and Plaintiffs’ Rule 26(f) expert disclosures. Because Defendant’s arguments, however, are factually wrong, legally flawed, and misrepresent the record, Plaintiffs request this Court to deny Defendants’ motion because: • The public health and environmental impact of Pioneer’s pesticides is directly relevant to Plaintiffs’ claims, Defendants’ defenses, and Plaintiffs’ damages. Indeed, HRS 149A-31 requires consideration of the environmental and human health risks to determine if Pioneer’s pesticide use is unreasonable. The environmental and human health aspects are also relevant to whether Defendants followed “generally accepted agricultural practices” as well as to Plaintiffs’ damages for stigma, loss of use of enjoyment of their property, and punitive damages. • Rule 403 does not bar evidence of the environmental and health risks of Pioneer’s pesticides. Rather, none of Defendants’ reasons justify exclusion of the five reports at issue, which are all directly relevant to the claims, defenses, and damages of the case. 1 Lynch Hopper Salzano & Smith Law Offices of Gerard Jervis Case 1:12-cv-00231-LEK-BMK Document 766 Filed 06/24/14 Page 5 of 25 PageID #: 7899 II. ARGUMENT A. The Health Risks Associated with Pioneer’s Pesticide Use Are Intertwined with the Dust Impacts and Relevant to the Nature of the Nuisance and Plaintiffs’ Use and Enjoyment of Their Homes. The crux of Defendant’s motion is that because “Plaintiffs’ principal claim is that dust from Pioneer’s farming operations interferes with their use and enjoyment of their property,”1 the simultaneous drift of pesticides must be irrelevant. This logic is flawed. Contrary to Defendants’ arguments, one cannot neatly separate the “dust impact” from the “pesticide impact” in Waimea into neat boxes. For example, while pesticides readily drift by themselves, pesticides are also carried when dust blows from fields.2 Therefore, the impact of dust is a concern not simply because of the huge imposition to clean it, but because dust carries pesticides along when it blows. This has been part of this case from Waimea residents’ first petition to Pioneer.3 Even without dust to carry pesticides into Waimea, however, Plaintiffs experts confirm that Pioneer’s pesticides reach Waimea4 and that these pesticides pose substantial risks to the health of Waimea residents.5 Thus, with or without the dust impact, Pioneer’s pesticides constitute a nuisance to Waimea. 1 Motion (ECF 744) at 3. 2 Expert Report of Susan Kegley, attached hereto as Exhibit 1, at 7-8 (“Drift can also occur after pesticides have been applied, from several days to several weeks after the initial application. Post- application drift takes two forms: 1) Drift of pesticide contaminated dust particles; and 2) volatilization drift, where pesticides evaporate off leaf and soil surfaces for several days to several weeks after the application and are transported off-site by prevailing winds.”). 3 Petition for Cleaner Air, Exhibit 5 to Third Amended Complaint(“TAC”) (ECF 331) (“We are concerned this dust may contain pollutants, such as fertilizers and/or pesticides that are used in commercial agriculture, and that the long-term health consequences of continuing present behavior may be severe.”). 4 Ex. 1, Expert Report of Susan Kegley;, at 11 (“There are many studies demonstrating the presence of volatilized pesticides in air both near and far from application sites, with a subset of the data showing concentrations of pesticides in air that are above toxicological levels of concern. In the section below, I present data from these studies to support my opinion that the people of Waimea are more likely than not 2 Lynch Hopper Salzano & Smith Law Offices of Gerard Jervis Case 1:12-cv-00231-LEK-BMK Document 766 Filed 06/24/14 Page 6 of 25 PageID #: 7900 It should also be recognized that the degree of a nuisance in any case turns in large part upon the nature of the nuisance. One cannot address the nuisance of Pioneer’s pesticides without recognizing the health risks they pose to Plaintiffs. Nevertheless, Defendants continue to try. For example, in many of the sixty depositions taken by Defendants, Defendants’ counsel explained