Matsuura v. E.I. Du Pont De Nemours and Co.
| Decision Date | 07 June 2004 |
| Docket Number | No. CV99-0660-MLR.,No. CV96-1180-MLR.,No. CV97-1185-MLR.,No. CV97-0716-MLR.,No. CV00-0328-MLR.,No. CV00-0615-MLR.,CV96-1180-MLR.,CV97-0716-MLR.,CV99-0660-MLR.,CV00-0328-MLR.,CV00-0615-MLR.,CV97-1185-MLR. |
| Citation | 330 F.Supp.2d 1101 |
| Parties | David MATSUURA, Individually and dba Orchid Isle Nursery, and Stephen Matsuura, Individually and dba Hawaiian Dendrobium Farm, Plaintiffs, v. E.I.. DU PONT DE NEMOURS AND COMPANY, a Delaware Corporation, Defendants. Fuku-Bonsai, Inc., a Hawaii Corporation and David W. Fukumoto, Plaintiffs, v. E.I.. du Pont de Nemours and Company, a Delaware Corporation, et al., Defendants. Living Designs, Inc. and Plant Exchange, Inc., Hawaii Corporations, Plaintiffs, v. E.I.. du Pont de Nemours and Company, a Delaware Corporation, Defendants. McCONNELL, INC., a California Corporation, Plaintiff, v. E.I. du Pont de Nemours and Company, a Delaware Corporation, Defendants. Anthurium Acres, a Hawaii general Partnership, Successor in interest to Island Tropicals; Mueller Horticultural Partners, a Hawaii Limited Partnership, Plaintiffs, v. E.I.. du Pont de Nemours and Company, a Delaware Corporation, Defendants, EI du Pont de Nemours and Company, a Delaware Corporation, Plaintiff/Counterclaim Defendant, v. Exotics Hawaii Kona, Inc. and Harvey Tomono, Defendants/Counterclaim Plaintiffs. |
| Court | U.S. District Court — District of Hawaii |
Ross N. Gushi, Bays, Deaver, Lung, Rose & Baba, James Rodney Veary, Honolulu, HI, Stephen T. Cox, Scott J. Allen, Molligan, Peter N. Molligan, Cox & Moyer, San Francisco, CA, A. Camden Lewis, Mary G. Lewis, Thomas A. Pendarvis, Lewis, Babcock & Hawkins, Columbia, SC, for Plaintiffs.
Judith Ann Pavey, Pavey & Glickstein, Howard Glickstein, Carl H. Osaki, Honolulu, HI, John C. Hentschel, David W. Moyer, Molligan Cox & Moyer, San Francisco, CA, Kris A. LaGuire, Attorney at Law, Hilo, HI, for Plaintiffs and Counter-Defendants.
Edward A. Moss, Shook, Hardy & Bacon LLP, Miami, FL, Susan C. Yi, Warren Price, III, Robert A. Marks, Terence S. Yamamoto, Price, Okamoto, Himeno & Lum, Lisa W. Munger, Goodsill, Anderson, Quinn & Stifel LLLP, Honolulu, HI, for Defendants.
A. Stephens Clay, William H. Boice, James F. Bogan, III, C. Allen Garrett, Kilpatrick Stockton LLP, Atlanta, GA, Paul T. Reid, Eileen L. Tilghman, Shook Hardy & Bacon LLP, Miami, FL, Mark B. Hutton, Channel P. Townsley, III, Hutton & Hutton, Wichita, KS, Ronald L. Raider, Kilpatrick Stockton LLP, Daniel W. Sigelman, Kellogg, Saccoccia & Sigelman, Washington, DC, Bruce L. Lamon, Goodsill, Anderson, Quinn & Stifel LLLP, Warren Price, III, Robert A. Marks, Price, Okamoto, Himeno & Lum, Kenneth T. Okamoto, Price, Okamoto, Himeno & Lum, Lisa W. Munger, Goodsill, Anderson, Quinn & Stifel LLLP, Riccio M. Tanaka, Melvin Y. Agena, C. Bryan Fitzgerald, Fitzgerald Law Firm, Honolulu, HI, for Defendants and Counter-Claimants.
The Court has reviewed fully the proceedings in each of the motions considered herein and has considered the memorandum submitted by defendant entitled Opinion and Order. It is an accurate and complete review of all the proceedings before the Court involving in excess of six file cabinet drawers of motions and points and authorities. In addition the Court has heard the arguments of counsel on all the issues involved in this litigation. The Court has also considered the objections of the plaintiffs which, in effect, are only a re-argument of their position already considered by the Court in hearings recited herein. The adoption of the memorandum is to accurately recite the facts and the basis for the rulings made in this order.
The following motions are before the Court: (1) "DuPont's Motion for Judgment on the Pleadings as to All Plaintiffs' Claims Based on Litigation Conduct"1 ("Litigation Conduct Motion"); (2) "DuPont's Motion for Judgment on the Pleadings as to Plaintiffs' RICO Claims"2 ("RICO Motion"); (3) DuPont's Motion for Summary Judgment on Plaintiffs' Claims Regarding the So-Called `ALTA Fraud'"3 ("ALTA Motion"); (4) "DuPont's Motion for Summary Judgment on the Speculative Nature of Plaintiffs' Damages"4 ("Speculative Damages Motion"); (5) "DuPont's Motion for Summary Judgment on Plaintiffs' Remaining Non-Fraud Claims"5 ("Non-Fraud Motion"); (6) "Plaintiffs' Motion to Vacate September 4, 2002 Reasonable Reliance Order, Deny Defendant Du Pont's Reasonable Reliance and Litigation Immunity Motions, and Set Case for Consolidated Trial"6 ("Plaintiffs' Motion to Vacate"); and (7) "DuPont's Counter Motion for An Order Clarifying and Superseding `Order Granting DuPont's Motion for Summary Judgment on Plaintiffs' Inability, As a Matter of Law, to Establish Reasonable Reliance'"7 ("Counter Motion for a New Reasonable Reliance Order").
This Judgment addresses all seven motions, granting the motions filed by DuPont and denying Plaintiffs' Motion to Vacate. As requested in the Counter Motion for a New Reasonable Reliance Order, this Judgment supersedes this Court's prior "Order Granting DuPont's Motion for Summary Judgment on Plaintiffs' Inability, as a Matter of Law, to Establish Reasonable Reliance," filed September 4, 2002 ("September 4 Order"). As a result of this ruling, the Court dismisses with prejudice all of the claims asserted by the Matsuura Plaintiffs against DuPont, as well as all of the fraud-based counterclaims asserted against DuPont by the defendants/counterclaim plaintiffs in Case No. CV97-01185-MLR/LEK.8
Many of the same undisputed facts are relevant to the different legal issues presented by the various pending motions. This background section sets forth the facts bearing on all of the motions, organized as follows: (a) the underlying cases; (b) the ALTA discovery disputes; (c) the Plaintiffs'9 settlements and dismissals with prejudice; (d) post-settlement "discovery fraud" proceedings; and (e) relevant proceedings in these cases, including the certified question proceedings before the Hawaii Supreme Court.
These cases arise from product liability cases filed by the Plaintiffs in 1992 and 1993 against E.I. du Pont de Nemours and Company ("DuPont") relating to their use of the DuPont fungicide known as Benlate(R) ("Benlate"), and which were settled in April, May, and October, 1994. These product liability cases, which were litigated in Hawaii state court, will be referred to as the "Underlying Cases." The Underlying Cases were among other Benlate cases that had been brought against DuPont in federal court in Georgia and state courts in Florida and Hawaii.
With one exception,10 all of the Plaintiffs were represented in the Underlying Cases by a Florida attorney named Kevin Malone ("Malone"). In the Underlying Cases, as well as other Benlate cases, the Benlate plaintiffs alleged that Benlate was contaminated with an herbicide that damaged their crops and contaminated their lands. Before the underlying cases were settled there were extensive allegations in the Underlying Cases and other Benlate cases around the country that DuPont had engaged in massive discovery abuse and other instances of litigation misconduct. Plaintiffs, particularly their counsel, monitored the other Benlate cases and were, at the time of the settlements, aware of the allegations that had been leveled against DuPont in those other cases.11
Plaintiffs' claims focus to a large extent on scientific testing conducted for DuPont by an outside consultant, ALTA Laboratories ("ALTA"). For various Benlate cases, ALTA analyzed soil and plant samples from Benlate plaintiffs' properties to determine whether a form of herbicide called sulfonylurea ("SU") was present. According to Plaintiffs: (1) certain data generated by ALTA as a result of this testing which was not produced until May 1994 ("the ALTA Data") contained information that Plaintiffs needed to know to evaluate settlement (i.e., the data allegedly showed that the soils of other Benlate plaintiffs were contaminated with SU herbicides manufactured by DuPont); (2) DuPont fraudulently concealed the ALTA Data by claiming that it was protected work product; and (3) assuming the ALTA Data had been disclosed, Plaintiffs would have received significantly more money in their settlements.
The undisputed evidence, however, shows that: (1) prior to Plaintiffs' settlements, their own expert witness had already concluded that ALTA had found SU contamination in Benlate; (2) Plaintiffs knew about the existence of the ALTA Data before they settled with DuPont and did not rely on DuPont's claims of work product protection but vigorously contested (and ultimately vitiated) those claims; and (3) even after the data were produced in the Hawaii Benlate litigation in May 1994, Benlate plaintiffs continued to settle their claims against DuPont (including Fuku-Bonsai, Inc., a Plaintiff here who was represented by Malone, and Harvey Tomono, a Plaintiff here who was represented by Hawaii attorneys Judith Pavey and Howard Glickstein).
As early as a deposition on February 10, 1994, Plaintiffs' analytical chemistry expert, Dr. Jodie Johnson, testified that, in his opinion, ALTA had found SUs in soil samples removed from the farms of plaintiffs in a Hawaii case (the Kawamata/Tomono case) and a Florida case (the Lambert case). Scott Lieberman, an attorney in Malone's law firm, attended Dr. Johnson's deposition.
At his deposition on March 2, 1994, ALTA scientist Robert Bethern testified about the ALTA Data, which consisted of test data generated in connection with a Benlate case filed in federal court in Georgia (the Bush Ranch case) and additional testing from the Lambert case in Florida. According to Bethem, those test results contained "peaks" in the retention time for some SUs — the same type of information on which Plaintiffs' expert Dr. Johnson had based his opinions during the underlying litigation that ALTA had found SUs.
An expert report prepared by Dr. Johnson and dated March 30, 1994 concluded that, based upon his "review of the [ALTA]...
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