Law360, Washington (November 2, 2016, 7:04 PM EDT) — A Washington, D.C., federal court has further pared down claims from Ecuadorean nationals who say DynCorp battered them with herbicide during a drug eradication program, granting in part the company’s motion for summary judgment.
In an opinion issued in September and unsealed Wednesday, Judge Ellen Segal Huvelle tossed claims of battery and intentional infliction of emotional distress for more than half of the 20 test plaintiffs and nixed all nuisance claims in a case over Colombian drug spraying operations that strayed across the border, allegedly affecting thousands of Ecuadoreans since the 1990s.
The D.C. Circuit had already reduced the claims against defense contractor DynCorp, finding in 2014 the plaintiffs had failed to present evidence that their exposure to the herbicide glyphosate, Monsanto’s proprietary Roundup product, caused personal injury or property damages.
The court found that just five of the 20 test plaintiffs testified to a physical manifestation of emotional distress resulting from DynCorp’s spraying activities, such as personality changes, depression or loss of sleep, while the remaining 15 failed to distinguish their claims of extreme emotional distress from previously dismissed claims of damages from contact with the herbicide.
“A large number of test plaintiffs provided declarations attesting to how they were emotionally distressed as a result of their physical injuries, damaged crops, and resulting economic difficulties,” the opinion said. “These types of emotional anxiety are not sufficiently severe as a matter of law.”
Similarly, the court found battery claims from 11 of the plaintiffs failed as a matter of law since they did not claim they had been personally exposed to glyphosate sprayed by DynCorp.
“Clearly there can be no battery where there is no evidence of physical contact between the herbicide spray and a test plaintiff,” the court found.
The district court previously dismissed all claims by the group over alleged damages from exposure of their crops, livestock and bodies to herbicide sprayed by DynCorp as part of a joint U.S. and Colombian effort to eradicate cocaine and poppy plantations. The plaintiffs failed to present expert testimony linking glyphosate exposure to alleged negative health and economic impacts, the court ruled in 2013.
But the folllowing year, the D.C. Circuit put the case back before the lower court, minus personal injury and property damages, when it ruled that expert testimony was not necessary to support claims of battery, intentional infliction of emotional distress and harassment relating to the unwelcome chemical exposure.
The most recent ruling further withers the case from 20 test plaintiffs but does not necessarily affect the prospects of nearly 2,000 nontest plaintiffs from the Ecuadorean border province of Sucumbios who claim DynCorp’s eradication efforts negatively impacted them when fumigants drifted across the border onto their farms. The court found that applying its decision to the entire prospective class would be unfair and unprecedented.
“Even if such an extraordinary arrangement did not already strike the Court as implausible and unfair, if not unconstitutional, the Court also cannot find any evidence of its existence in the record,” the opinion said.
DynCorp was hired by the U.S. Department of State to destroy Colombian cocaine and heroin poppy plantations by spraying them with herbicides under a joint program between the U.S. and Colombian governments to fight Colombian drug cartels, called Plan Colombia, in an increasingly controversial plan that continues to this day.
Residents of Sucumbios first filed suit against the DynCorp in September 2001, claiming people, crops and livestock all suffered from fumigants that drifted across the border and were, in some cases, sprayed directly onto farmers by planes that had crossed into Ecuadorean airspace.
Representatives for the parties could not immediately be reached for comment.
DynCorp is represented by Rosemary Stewart, Joe G. Hollingsworth, Eric G. Lasker and Katharine R. Latimer of Hollingsworth LLP.
The cases are Arias et al. v. DynCorp et al., case number 1:01-cv-01908, and Quinteros et al. v. DynCorp et al., case number 1:07-cv-01042, in the U.S. District Court for the District of Columbia.
–Editing by Christine Chun.