The U.S. Chamber of Commerce and the Texas Wine and Grape Growers Association have thrown their support behind opposite parties in a lawsuit over crop damage allegedly caused by the aerial application of herbicide.
The interest groups recently filed dueling amicus briefs with the Texas Supreme Court in the case that’s set for Oct. 26 oral arguments. The Chamber argues 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, the TWGGA argues a ruling in favor of Helena Chemical Co. would immunize negligent herbicide applicators and imperil the state’s $13 billion wine industry.
TWGGA told the court that both the wine grape growers and the wineries that comprise its members 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.”
In the case that amici have presented as high stakes with far-flung implications, the Texas Supreme Court must decide whether Robert Cox and a group of other farmers who allege the aerial application of Sendero damaged 111 cotton fields have presented enough evidence to proceed with the suit that a trial court tossed on summary judgment.
Acknowledging the fact that the crop damage alleged by the cotton growers is “deeply unfortunate,” the Chamber urged the court to dismiss the lawsuit against Helena because of insufficient evidence that the chemical company caused the crop damage.
“Proving causation with reliable expert testimony requires ruling out possible alternative causes of damage — especially in toxic-tort litigation like this involving complex weather patterns over a large area of land,” the Chamber told the court. “The plaintiffs in this case failed to carry that burden. They have not ruled out possible alternative causes of the herbicide damage, nor proven that each cotton field was damaged, nor demonstrated the presence of enough Sendero to harm cotton plants.”
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 in excess of 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 brought suit 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.
The case came to the Texas Supreme Court when Helena filed its petition for review on 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 of six of their experts, holding that while they couldn’t specifically trace the drift of the 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.
“Relying on [Texas Department of Agriculture pesticide inspector Cory] Pence’s investigation and observations that Helena’s aerial application of Sendero, which was done in conditions that exacerbated drift, was the only such large-scale application at the relevant time and place, [the experts] concluded that the damage to appellants’ cotton crops was caused by Helena,” the panel wrote. “We see no analytical gap in such a conclusion.”
The Chamber is represented by Aaron M. Streett of Baker Botts.
TWGGA is represented by Derek L. Montgomery and Elizabeth Geary-Hill of Kelly Hart & Hallman.
Cox and the other cotton farmers are represented by Don C. Burns and Cody McCabe of San Angelo.
The cause number is 20-0881.