Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co., Inc.

• Decision Date: 01 December 2010
• Docket Number: Nos. 3D07-2322, 3D07-2318, 3D07-1036.,s. 3D07-2322, 3D07-2318, 3D07-1036.
• Citation: 48 So.3d 976
• Court: Florida District Court of Appeals
• Parties: AGROFOLLAJES, S.A., et al., Appellants/Cross-Appellees, v. E.I. DU PONT DE NEMOURS & COMPANY, INC., Appellee/Cross-Appellant.

48 So.3d 976

AGROFOLLAJES, S.A., et al., Appellants/Cross-Appellees,

v.E.I. DU PONT DE NEMOURS & COMPANY, INC., Appellee/Cross-Appellant.

Nos. 3D07-2322, 3D07-2318, 3D07-1036.

District Court of Appeal of Florida, Third District.

Dec. 1, 2010.

Holland & Hart, and Peter C. Houtsma, Maureen R. Witt, and Marcy G. Glenn; Elizabeth K. Russo; Don Russo, Miami, for appellants.

Shook, Hardy & Bacon and Tom Sherouse, Daniel Rogers and Sergio Pagliery, Miami; Hicks, Porter, Ebenfeld & Stein, P.A., and Mark Hicks, Dinah Stein, and Gary Magnarini, Miami, for appellee.

Before RAMIREZ, C.J., and CORTIÑAS, J., and SCHWARTZ, Senior Judge.

ON MOTIONS FOR REHEARING AND/OR CERTIFICATION

RAMIREZ, C.J.

The appellants have moved for rehearing and/or certification, and the appellee has moved for rehearing. Upon consideration of these motions, we grant the appellants' motion for rehearing and deny their motion for certification. Furthermore, we deny the appellee's motion for rehearing, and we vacate our opinion of December 16, 2009, and issue the following opinion in its stead.

The appellants are the plaintiffs who appeal the trial court's final judgments and amended final judgments rendered upon disposition of the parties' post-trial motions, including the plaintiffs' motion for additur, the plaintiffs' motion to set aside verdict on comparative negligence defense and for entry of judgment in accordance with the plaintiffs' motion for directed verdict on said defenses, the plaintiffs' motion to set aside portion of seven verdicts reduced by statute of limitations defense and for entry of judgment in accordance with the plaintiffs' motion for directed verdict on said defense, and the plaintiffs' motion for award of prejudgment interest.¹

Case numbers 3D07-1036 and 3D07-2322 are appeals from the final money judgments and the amended final money judgments entered in favor of certain plaintiffs. Case number 3D07-2318 is an appeal from judgments entered in favor of the defendant E.I. Du Pont de Nemours & Co. and against certain plaintiffs, based on statute of limitations defenses raised by Du Pont. In addition, Du Pont cross-appeals these judgments. We reverse and remand for new separate trials because the trial court erred in ordering a single, consolidated trial of the claims raised by all twenty-seven plaintiffs.

I. Factual Background

This action involves the mass, consolidated tort cases commenced in 2001 by twenty-seven Costa Rican growers of leatherleaf ferns against Du Pont, alleging product liability caused by Benlate, a systemic fungicide that Du Pont manufactured and marketed. The plaintiffs challenge the trial court's decision to submit Du Pont's statute of limitations defense to the jury; the trial court's decision to deny pre-judgment interest under Florida law or indexation under Costa Rican law to the damages awarded by the jury; as well as the trial court's directed verdict against seven plaintiffs, on statute of limitations grounds.² The plaintiffs further allege that the trial court abused its discretion in denying an additur for the plaintiffs' remediation cost and related lost profits. Du Pont cross-appeals the trial court's decision to consolidate the twenty-seven cases, as well as the entry of judgment against it for the remaining twenty plaintiffs. Du Pont further appeals on the grounds that the trial court repeatedly abused its discretion and committed reversible error.

Leatherleaf fern is an ornamental crop, a brightly colored and symmetrically shaped fern that florists use to enhance cut flower arrangements. The plaintiffs are commercial growers of leatherleaf fern in Costa Rica who grow the ferns for a worldwide market, providing ferns mostly for Europe and Japan. The leatherleaf fern is grown from an underground, root-like stem system called a rhizome. After a rhizome is planted, leatherleaf fern fronds grow from it and are harvested every six to eight weeks. The harvesting process involves cutting the fern foliage or fronds from the rhizomes, which remain in the ground. This process is repeated, subsequent fern crops grow in, and the new fronds are likewise harvested. Each rhizome continues to produce successive generations of leatherleaf fern for years, usually decades. During harvesting, the fronds are sorted manually to select out any malformed or discolored fern, and the good fern is sold for distribution to florists. Ferns are propagated using a vegetative reproduction method whereby the rhizomes are divided and planted to establish new fern crops.

A. Du Pont's Benlate Fungicide

Du Pont's agricultural business develops insecticides, herbicides and fungicides for the worldwide market. These productsare promulgated for the protection of crops from pests and disease. In 1970, Du Pont introduced the first "systemic" fungicide under its brand name Benlate WP ("Wettable Powder"), containing the active ingredient benomyl. Benlate WP became the world's leading fungicide, used in more than one-hundred countries in a wide variety of crops. Systemic fungicides are differentiated from conventional fungicides in that while conventional fungicides act outside of the plant, a systemic fungicide is absorbed into the plant and thus protects and cures crops by acting from within the plant.

In 1987, Du Pont reformulated the Benlate product, introducing Benlate DF ("Dry Flowable"), a dust-free formulation, which like Benlate WP, also contained benomyl as its active ingredient. Consequently, Benlate DF supplanted Benlate WP as the leading fungicide.

B. The Trial

Plaintiff Agrofollajes and the other twenty-six plaintiffs filed their 2001 claims seven months apart in two complaints that contained similar extensive, detailed allegations of plant damage. The Super Helechos complaint was 38 pages long and contained 187 paragraphs of allegations, and the Euro Flores complaint was 37 pages long and contained 174 paragraphs of allegations. The complaints alleged that the plaintiffs' leatherleaf fern plants were damaged by Du Pont because: (1) the Benlate was cross-contaminated with other chemicals that were manufactured at the same facility, and (2) Benlate DF broke down into DBU, a herbicide-like agent called dibutylurea (DBU), which was toxic and caused the plant damage.

The plaintiffs represented to the trial court that consolidation would be more efficient because there were "many common issues" between the claims. Conversely, Du Pont alleged substantial differences in the plaintiffs' Benlate use, farm management, growing conditions, growing practices, chemical uses, periods in which deformities materialized, plant disease problems experienced, and damage claims. Du Pont also proffered different alternative causes for the plant damages at the various ferneries. Du Pont proposed that the court schedule either one fernery or one group of ferneries, under common management, as individual plaintiffs in separate trials. The trial court ordered a single, consolidated trial of the claims by all twenty-seven plaintiffs. Du Pont timely filed an objection to the consolidated trial as well as motions to sever.

At trial, however, the plaintiffs' opening statement re-characterized the "common issues." The plaintiffs acknowledged instead that there was only one material issue that was common to all the plaintiffs, the use of Benlate:

Somebody I think in jury selection said, "One farm? Two farms? Five farms? But 27 farms?" That's what you're going to hear. They don't have anything else in common. They're in different levels of the country. They have different practices. They have different employees. They even had different sources for their rhizomes, although they were all treated with Benlate. They have different rainfall. Different insect problems from time to time. Different fungus problems from time to time.

What is the one thing they have in common? The proof is going to be Benlate. That's the chain that links every one of these people that you see in the courtroom today.

The evidence presented at trial substantiated the many differences that existed among the individual plaintiffs. For example, of the twenty-seven plaintiffs, fourteenapplied Benlate to their ferns, ten did not, and there was conflicting evidence regarding the remaining three. Those plaintiffs who did apply Benlate had differences in the concentrations used, as well as in the application methods used. Some of the growers, like Follajes Las Trojas, applied Benlate as a drench and dip to rhizomes. Other plaintiffs, like Super Helechos, additionally sprayed the rhizomes. Still others, like Inversiones Bosqueña and Flores del Caribe, also sprayed Benlate on their plants. One plaintiff, Jardín Botánico, did not provide competent evidence that Benlate had been applied to its rhizomes. Jurors considering the claims of plaintiffs who either never used Benlate or used it after 1991 heard evidence of Du Pont's subsequent remedial measures.

Various plaintiffs used numerous chemicals in diverse ways. In addition to Benlate, some plaintiffs, like Rio de Janeiro, Follajes Las Trojas, Inversiones Bosqueña, and L.L. Ornamentales, applied Manzate, Daconil, Vydate, and dozens of other chemicals to their plants and rhizomes. Some, like Inversiones Bosqueña, Super Helechos, and Flores y Follajes las Joyas, used other fungicides that contained benomyl, the same active ingredient as Benlate. In fact, on cross examination, Inversiones Bosqueña testified that over the years it had used dozens of different types of fungicides in addition to possibly having used twenty or thirty chemicals on its ferns that were not listed as usable for ornamental plants by the Costa Rican Ministry of Agriculture. Inversiones Bosqueña testified that it used Benlate from 1987 to 1999 and that its practice was to keep receipts of the chemicals they bought. However, aside from producing one 1987 receipt for a minute amount of Benlate, none of the dozens of other entries regarding fungicide purchase in Inversiones...