A group of cotton farmers won’t be allowed to proceed with a lawsuit alleging Helena Chemical Company’s negligent aerial application of Sendero damaged their crops after the state’s high court pointed out numerous evidentiary problems in a 28-page opinion issued Friday.
The Texas Supreme Court determined 8-0 the farmers should take nothing on their claims. Justice Evan Young did not participate in the decision. The farmers, led by Robert Cox, were seeking unspecified damages for what they alleged was a reduced harvest in 111 West Texas cotton fields caused by the herbicide.
The case asked the court to determine whether Cox and nine other farmers presented enough evidence to proceed with their lawsuit that a trial court tossed on a no-evidence summary judgment motion. An intermediate appellate court partially revived the farmers’ suit, and Helena took the fight to the state’s high court in January 2021.
Justice Jimmy Blacklock, writing for the court, held that because the farmers are seeking damages for a reduced yield, it’s not enough to present evidence that the leaves were wilted and yellowed or that the plants were gnarled, which would support the theory of herbicide drift.
To survive Helena’s bid for summary judgement, the farmers were required instead to show that the alleged negligent application of Sendero “caused their plants to yield less cotton at harvest,” he wrote.
“The plaintiffs suggest that, apart from the expert testimony on which they rely, the lay opinions of the farmers themselves about the source of their crop failure can provide evidence of causation sufficient to survive summary judgment,” the court wrote. “In the context of this case, we disagree. … Determining whether a particular application of aerial herbicide substantially contributed to the failure of crops miles away requires knowledge and analysis of scientific matters beyond the competence of laymen.”
The court also held that the farmers only offered “inconclusive or speculative” testimony about aerial-drift pattens and failed to rule out two plausible alternative causes of the damage: weather and other herbicides.
“We do not suggest that precision of proof is required in such a case. Nor do we suggest a rigid requirement that such cases must always be proved with scientific modelling of the aerial with any other precise category of evidence,” the court held. “But it defies reason to suggest that Helena’s aerial application of Sendero landed in roughly equal quantities on all 111 fields scattered across hundreds of square miles of Mitchell County. Some scientific attempt to model where the Sendero probably drifted, in what amounts, and why, could at least have provided rational estimates of how much of Helena’s Sendero, if any, reached these scattered fields.”
Robert Soza of Jackson Walker, who represents Helena, told The Lawbook the Texas Supreme Court’s analysis in the opinion ” tracked almost exactly how we argued the case in the briefing and how we argued at oral arguments.” The court’s decision is important to more than just the parties in this case, he said, because it offers guidance to farmers on what evidence will be required to get their case before a jury in the future.
“What this case does is it allows both the farmers and the applicators to see some standards for how you go out and investigate your claims and how you go out and collect evidence for your claim,” he said. “If a farmer can meet these standards… it’s likely they’re going to get their claims resolved without getting in front of the jury.”
Don Burns of Burns & McCabe, who represents the farmers, told The Lawbook he’ll be filing a motion for rehearing because he doesn’t believe all the evidence in the record was given appropriate consideration.
“We have the longstanding rule that enables farmers to be protected against the sort of trespass by chemical that was observed and reported here,” he said. “The law in the state of Texas has always been that a farmer does not have to account with precision after a crop is damaged because that would require a crystal ball that no one owns.”
Burns said the court’s ruling was “surprising” given the “uniform reports of damage” from each plaintiff farmer in the case and reports from the TDA showing damage consistent with herbicide damage over thousands of acres of fields “in the timeframe that left little or no room for doubt of its origins.”
In July 2015, according to court records, Helena aerially applied more than 3,300 gallons of Sendero to target mesquite trees on 15,000 acres of the Spade Ranch, requiring pilots to make more than 600 flights to apply the herbicide. The applications took place in Mitchell County, situated between Abilene and Big Spring along Interstate 20 in West Texas.
The cotton farmers noticed the crop damage between seven and 10 days after the Spade Ranch application. Those signs prompted the farmers — who had witnessed the pilots spraying the Spade Ranch — to file a complaint with Texas Department of Agriculture, whose investigator came out and looked for alternative sources but found none.
The TDA investigator traced the damage to Helena’s application, and testing of some fields showed exposure to an active ingredient in Sendero that is also used in other herbicides.
The cotton farmers brought suit in 2015 alleging that the herbicide was applied negligently during adverse conditions and that the strong winds carried it from the intended target to their crops, sometimes more than 20 miles away.
Helena has argued that there’s insufficient evidence linking its application of herbicide to the crop damage, that the farmers failed to rule out other possible causes and that to survive summary judgment the farmers must test each plaintiff’s fields.
The case came to the Texas Supreme Court when Helena filed its petition for review Jan. 29, 2021, challenging an October 2020 ruling from the Eleventh Court of Appeals in Eastland that revived the suit.
A three-justice panel of that court reversed Mitchell County District Judge Al Walvoord’s May 2018 ruling rendering a take-nothing judgment against the cotton farmers. But the panel agreed with the trial court that the farmers could not proceed with their claims for mental anguish and punitive damages against Helena because they failed to show that Helena or its pilots “willfully and deliberately caused Sendero to drift onto appellants’ properties.”
The Eleventh Court of Appeals also agreed with the farmers that the trial court wrongly struck the opinions and testimony from six of their experts, holding that while they couldn’t specifically trace the drift of herbicide from the Spade Ranch to the cotton fields, “they provided a reliable scientific basis for their opinions that appellants’ cotton crops were damaged by a large-scale aerial application of clopyralid to the south of appellants’ fields.”
Clopyralid is an ingredient in Sendero and other herbicides.
The U.S. Chamber of Commerce and the Texas Wine and Grape Growers Association threw their support behind opposite parties in the suit.
The Chamber argued that siding with the cotton farmers would threaten the entirety of the Texas economy by forcing businesses of all sorts to raise prices and lower wages in the face of “arbitrary and unpredictable liability.” Meanwhile, TWGGA argued that a ruling in favor of Helena would immunize negligent herbicide applicators and imperil the state’s $13 billion wine industry.
TWGGA told the court that its members — which includes wineries and wine and grape growers — are sounding alarms about the “significant damage that grapevines suffer as a result of herbicide spray drift.”
“In fact, both segments testified before the Texas House of Representatives that herbicide spray drift has emerged as the single greatest threat to the growth — and even the sustenance — of the industry,” the group said. “When spray drift occurs due to negligent aerial application, courts must apply the appropriate causation standard.”
Helena is also represented by Robert L. Soza, Jennifer Caughey, Danica L. Milios, Stephen A. Calhoun and Amanda N. Crouch of Jackson Walker.
The farmers are also represented by Cody McCabe of Burns & McCabe.
The case number is 20-0881.