Plourde v. Gladstone

• Decision Date: 20 March 2002
• Docket Number: No. 1:00-CV-194.,1:00-CV-194.
• Citation: 190 F.Supp.2d 708
• Court: U.S. District Court — District of Vermont
• Parties: Daniel PLOURDE, et al., Plaintiffs, v. Walter GLADSTONE, et al., Defendants.

190 F.Supp.2d 708

Daniel PLOURDE, et al., Plaintiffs, v. Walter GLADSTONE, et al., Defendants.

No. 1:00-CV-194.

United States District Court, D. Vermont.

March 20, 2002.

R. Bradford Fawley, Downs, Rachlin & Martin, Brattleboro, VT, for Plaintiffs.

Richard P. Foote, Conley & Foote, Middlebury, VT, for Walter Gladstone.

Harry R. Ryan, III, Ryan, Smith & Carbine, Ltd., Rutland, VT, for Craig W. Trischman and Twin State Fertilizer.

RULING ON DEFENDANTS' MOTION TO EXCLUDE TESTIMONY OF DR. ROBERT K. SIMON

(Paper 116)

MURTHA, Chief Judge.

Before the Court in this toxic tort action is a motion by Defendants Walter Gladstone, Craig W. Trischman, and Twin State Fertilizer, Inc. to exclude the expert opinion testimony of Dr. Robert K. Simon. For the reasons explained below, Defendants' motion is GRANTED with respect to Dr. Simon's proffered testimony on the issue of injury causation.

I. Background

From 1997 through 2001, Plaintiffs Daniel and Margaret Plourde lived with their two children, Andre and Daniele Plourde, on their 25-acre dairy farm in North Haverhill, New Hampshire. Walter Gladstone, a resident of Bradford, Vermont, owns 140 acres of farmland located to the immediate west and upwind of the Plourde farm.¹ Gladstone uses his land to grow silage (feed) corn and pumpkins. Defendant Craig Trischman is the owner of Defendant Twin State Fertilizer, Inc., a Vermont corporation that applies fertilizers, herbicides, and pesticides for area farmers, including Gladstone. This dispute arises primarily from two herbicide spraying episodes during the growing seasons of 1999 and 2000.

A. Herbicide Applications

1. 1999

During four days in May and early June of 1999, Trischman applied the herbicide Command® 4EC to approximately 80 acres of Gladstone's pumpkin crop. The active ingredient in Command® 4EC is clomozone. On May 31, 1999, Trischman sprayed two herbicides — Prowl® 3.3EC and Bicep II® — on approximately 14 acres of silage corn crop. The active ingredient in Prowl® 3.3EC is pendimethalin, and the active ingredients in Bicep II® are atrazine and simazine.

Also during 1999, Gladstone hired Northeast Agriculture — a non-party in this case — to apply agricultural chemicals to his fields. On June 10, July 15 and 29, as well as August 6, 1999, Northeast Agriculture applied a variety of pesticides, herbicides, and fungicides to the Gladstone fields. At least one such pesticide, Sevin®, with an active ingredient of carbaryl, has a propensity to drift.

On June 21, 1999, the Plourdes first noticed trees and shrubs on their property turning white in color. The Plourdes contacted the State of New Hampshire Department of Agriculture, and on June 24, 1999 a State inspector, Claire Nadon, investigated the Plourde farm. Nadon confirmed that vegetation was discolored and collected some vegetation and soil samples for laboratory testing. For the most part, the State's laboratory results detected no presence of any of the chemicals used on the Gladstone property in 1999. However, one area tested positive for clomozone and a trace result for a commonly-used agricultural chemical.

On the basis of her investigation, Nadon filed an administrative complaint against Twin State and Trischman. On October 27, 1999, in agreeing to a $3000 civil penalty, Twin State and Craig Trischman formally admitted to New Hampshire's allegation that "[o]n one or more of the application dates (May 29, 30, 31 and June 5, 1999) the pesticide `Command 4 EC Herbicide,' ... was applied in a manner which caused contamination to the ... Plourde Farm." Paper 121, Ex. C.

2. 2000

On May 22, 2000, Trischman applied the following herbicides to Gladstone's corn crops: Banvel®, with an active ingredient of dicamba; Dual II Magnum®, with an active ingredient of S-metolachlor/benoxacor; and Princep 4L®, with active ingredients of atrazine and simazine. Evidently, Northeast Agriculture sprayed pesticides on the Gladstone fields during the 2000 growing season. See Paper 121, Ex. A, at ¶ 30.

On June 2, 2000, after being told by the Plourdes that trees and shrubs on their property were dying and turning yellow, Inspector Nadon returned to investigate the Plourde property. Nadon confirmed that some leaves on some of the trees were yellowed and drooping. Two vegetative samples collected on that day from two locations on the Plourde property were negative for the chemical compounds sprayed on the Gladstone property. However, a sample collected on June 20, 2000, from a windowsill of the Plourde's house directly facing the Gladstone property, reported the presence of dicamba.

Defendants' toxicological expert, Dr. Robert James, testified during his deposition as follows:

Q. Which compounds are you confident exposure occurred [during 1999 and 2000]?

A. Clomazone and dicamba.

* * * * * *

Well, let me back up.... When I'm talking about exposure, I'm thinking significant or measurable exposure. You might argue that some immeasurable or subdetectable exposure occurred. I'm tending not to discuss that because it wouldn't be significant. I'm talking about things that might be of significance and you would evaluate.

Paper 121, Ex. B, at 91-92.²

B. Daniel Plourde's Physical Condition Evaluations

1. Medical History Prior to the Sprayings

Over the course of several years prior to the spraying episodes, Daniel Plourde was diagnosed by his personal physician, Dr. Lynn Durand, with the following conditions or illnesses: (1) repeated bronchitis (respiratory infection), with associated persistent coughing and breathing difficulty; (2) sleep apnea, a condition where an individual stops breathing during sleep; (3) mild hypertension (i.e., elevated blood pressure); (4) serotonin deficiency (i.e., mild or lower-grade depression); and (5) occasional sore joints. See Paper 116, Ex. H. Daniel Plourde reported as a side effect of his bronchitis an occasional tendency to cough up mucosy sputum streaked with blood. Dr. Durand testified that one likely causal factor of Mr. Plourde's sleep apnea was his extra bodyweight, and that one symptom of sleep apnea is a feeling of fatigue. See id. at 116. Dr. Durand's notes from a February 1997 examination stated that "[a]ll of [Plourde's] life he has been somewhat stressed and he responds physically to stressful situations." Id. at 32. When asked to explain what he meant by that observation, Dr. Durand testified: "In other words, ... [Mr. Plourde] would tend toward physical symptoms during times of stress...." Id. at 33. Upon further questioning, Durand testified as follows:

Q. Generally, what are some of the ways an individual like Dan Plourde could respond physically to stressful situations?

A. Multiple ways ... migraine headache ... decreased weight ... increased weight ... back pain, muscle spasms, chest pain, angina, heart attacks ... rashes ... difficulty breathing ... feeling of numbness ... diminished memory ... nausea.

Id. at 35-36.

2. July 1999

On July 1, 1999, Mr. Plourde visited Dr. Durand complaining of coughing accompanied by blood, shortness of breath upon exertion, and swelling and redness on the side of his face that was facing the Gladstone property when he was working on his farm. Plourde alleged that the symptoms were due to the clomozone sprayed on the Gladstone property. Dr. Durand later testified that Mr. Plourde's face did not appear red or swollen, and explained he could not, "to a reasonable degree of medical certainty" conclude that the symptoms Mr. Plourde reported having was caused by exposure to "anything, including herbicide." Id. at 152-53.

3. June 2000

On June 4, 2000, Mr. Plourde, after completing his morning farm chores, checked into the emergency room at a local hospital. A hospital report prepared that day stated, in relevant part:

Patient noted left facial numbness with some question of drool on the left side of his mouth at approximately 2:00 a.m. this morning. Otherwise no complaints or symptoms. No chest pain. No shortness of breath, no nausea or vomiting. No headache, no back pain. No change in eczema. He completed his usual farm chores. He had no trouble with exertion, but appears fatigued. He went into the house and rested and reported to the ER shortly thereafter....

Paper 115, Ex. 26.

a. Dr. Charles Sawyer

After Plourde was admitted to the emergency room, he was first examined by Dr. Charles Sawyer. During his October 5, 2001 deposition, Sawyer testified as follows:

2. [Plourde] came in complaining of tingling in the left side of his mouth, and he listed the reason that he was having this was that he was exposed to an herbicide.

* * * * * *

He told me that he had a cow that was ill, also, that was unable to stand, and that the vet was taking care of the cow, and that I should call the vet to see what's wrong with the cow because maybe that's what's wrong with him.

* * * * * *

Q. What did your exam show?

A. If you read from the note, he was awake, alert, did not appear to be in any acute distress, his ears, nose, and throat exam are essentially normal, his lungs are clear, his heart and abdomen are normal, his back was normal, his extremities were normal, his neurologic exam looked to be grossly normal, and I didn't detect any facial weakness or asymmetry in his mouth.

Q. And he wasn't drooling?

A. He wasn't drooling, that I could tell.

Paper 115, Ex. 28, at 11-12, 14.

Dr. Sawyer also examined Mr. Plourde's body and observed cracks in the skin on Plourde's forearms and back. When questioned about this observation, Sawyer explained:

Q. Does that condition bring anything to mind for you, does that condition bring anything to mind for you that might explain the dermatitis?

A. There's a whole host of things, including chemical exposure, eczema, psoriasis, medication allergy.

Q. In this case there's just no way to know?

A. It's a long laundry list.

Q. You don't have an opinion at this time, do you?

A. Uh, no.

Id. at 75.

However, a blood test performed at approximately 10:40...