Most of the questions fired off by Texas Supreme Court justices during oral arguments Wednesday challenged the evidentiary standard Helena Chemical Co. argues is required for a group of cotton farmers to take to trial allegations that negligent aerial herbicide application damaged their crops.
The Texas Supreme Court has been asked to determine whether Robert Cox and a group of nine other farmers who allege the aerial application of Sendero damaged 111 West Texas cotton fields have 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.
On appeal, Helena has argued there’s a lack of evidence linking its application of herbicide to the cotton 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.
Justice Brett Busby asked Helena’s attorney, Robert L. Soza of Jackson Walker, if he wanted the court to overrule its own precedent outlining the standard for causation evidence in crop-dusting cases — laid out in a 1961 opinion in Pitchfork Land & Cattle Co. v. King.
“That case is obsolete for two reasons, both legally and scientifically,” Soza said.
Subsequent rulings from the Texas Supreme Court, Soza said, have beefed up the role of the trial court in acting as gatekeeper for what type of expert testimony is admissible, making the case legally irrelevant. Justice Busby followed-up asking why the case wasn’t still “good law as to the type of causation evidence that is necessary.”
“For example, the cases that you cite typically have to do with latent disease causation where there’s a very long amount of time between exposure and the manifestation of injury,” Justice Busby explained. “Because … you can’t actually experiment on the person to see if there’s evidence of specific causation. But it doesn’t seem like those are circumstances you have in a spray-drift case.”
Soza disagreed, telling the court that it’s true the latency period is shorter when dealing with cotton crops, but “more importantly, [Pitchfork] is wrong scientifically.”
The experts in this case, Soza said, have made clear that “the mere expression of symptoms by a plant are not sufficient to identify the herbicide that caused those symptoms.”
Justice Debra Lehrmann interrupted Soza, trying to reframe Justice Busby’s question, specifically addressing the latent disease causation requirements the court adopted in its 1997 ruling in Merrell Dow Pharmaceuticals Inc. v. Havner.
“Excuse me, but I think what Justice Busby is getting at is, we’re talking about the kind of studies that Havner suggested that we need to depend upon. The reason for that is because you can’t actually get a person and expose them to something that could cause them serious harm or even death, for obvious reasons,” Justice Lehrmann said. “These are plants, so, why would it apply?”
The epidemiological studies in Havner, in 2014’s Bostic v. Georgia-Pacific Corp and in 2007’s Borg-Warner Corp. v. Flores were another way to prove causation, Soza said before again being interrupted.
“But that was because you could not use real human beings, “Justice Lehrmann said. “You can use plants.”
Soza said that’s true, and is why the farmers in this case should have done more testing than they did.
Justice Lehrmann closed her eyes and shook her head in response.
Justice Busby jumped in again.
“But you don’t have to test it because the label says this will — that’s what it’s for, it kills plants.” Justice Busby said. “And it says don’t use it on cotton.”
Soza said the missing link here is evidence that the Helena’s chemicals reached the 111 cotton fields involved in this case.
Was Soza suggesting that an essential element of causation is the presence of chemical evidence inside the plant, Justice Jane Bland asked. Soza affirmed that was his argument.
“So would every plant need to be tested to show chemical exposure?” she asked.
Not every plant, Soza said, but a statistically representative sample would suffice — something more than what he characterized as the six samples taken from 111 fields in this lawsuit.
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, who live upwind of the application site, brought suit alleging that the herbicide was applied negligently during adverse conditions and that strong winds carried it from the intended target to their crops, sometimes more than 20 miles away.
An inspector from the Texas Department of Agriculture 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.
Justice Jeff Boyd asked counsel for the farmers to explain what guardrails would prevent unscrupulous attorneys from signing up farmer clients for similar litigation without investigating the claims if the court were to agree with the evidentiary standard urged by the plaintiffs here.
Don Burns of Burns & McCabe, who argued on behalf of the farmers, said Boyd’s question “crystalizes an important issue in this case.”
“I would go back to the days of Chief Justice [Robert] Calvert when they wrote the Pitchfork opinion,” Burns said. “It was sufficient then for the farmers to observe yellowing leaves on a trail from the target to the impacted field. And in this instance, that’s where this started.”
His cotton farmer clients, to whom he pointed in the gallery, noticed 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 TDA, whose investigator came out and looked for alternative sources, Burns said.
“He tracked the trail, the footprints, if you will, of this feral animal from the target fields to the impacted fields as far as 20 miles away,” Burns said. “To preserve his evidence, he took 284 photographs.”
Justice Boyd posed the same question to Elizabeth Geary-Hill of Kelly Hart & Hallman, who argued on behalf of amicus the Texas Wine and Grape Growers Association.
She said there must be some probative evidence. Justice Boyd asked if that meant “on a field-by-field level, an owner-by-owner level or a leaf-by-leaf level.”
At the summary judgment level, Geary-Hill said it would be on a plaintiff-by-plaintiff level.
“For the court to get into such a factual determination as to which fields were injured at the summary judgment level does not make sense based on what the plaintiff is required to show at that point,” she said.
Justice Evan Young did not participate in oral arguments Wednesday.
The farmers are also represented by Cody McCabe of Burns & McCabe
Texas Wine and Grape Growers Association is also represented by Derek L. Montgomery of Kelly Hart & Hallman. The cause number is 20-0881.