West v. G & H Seed Co.
| Decision Date | 28 August 2002 |
| Docket Number | No. 01-1453.,01-1453. |
| Citation | 832 So.2d 274 |
| Parties | Craig WEST, Troy West, and W.B. Farms Inc., et al. v. G & H SEED COMPANY, et al. |
| Court | Court of Appeal of Louisiana — District of US |
Arthur W. Landry, PlauchÉ, Maselli, Landry and Parkerson, L.L.P., New Orleans, LA, for Defendants/Appellants, G & H Seed Company, Inc. and Crowley Grain Drier, Inc.
Dawn M. Barrios, Bruce S. Kingsdorf, Barrios, Kingsdorf & Casteix, New Orleans, LA, Patrick C. Morrow, John Michael Morrow, Morrow, Morrow, Ryan & Bassett, Opelousas, LA, Gano Lemoine, Vance R. Andrus, Andrus, Boudreaux, Lemoine & Tonore, Lafayette, LA, Melanie M. Piech, Lori E. Andrus, Elizabeth J. Cabraser, Lieff, Cabraser, Heinmann & Bernstein, San Francisco, CA, William Neblett, Richard Arsenault, Neblett, Beard & Arsenault, Alexandria, LA, Kirk A. Guidry, Paul H. Due, Due, Caballero, Price, Guidry, Piedrahita & Andrews, Baton Rouge, LA, for Plaintiffs/Appellees, Craig West, Troy West and W.B. Farms, Inc.
Gary A. Bezet, Robert E. Dille, Gregory
M. Anding, Craig M. Freeman, Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Baton Rouge, LA, For Defendant/Appellant, Aventis Crop Science, USA LP.
Carl Duhon, Ike Huval, Duhon Law Firm, Lafayette, LA, Elwood Stevens, Jr., Kleinpeter, Schwartzberg & Stevens, L.L.C., Morgan City, LA, for Plaintiffs/Appellees, Patrick E. Phillips, Jr. d/b/a Phillips Seafood & Atchafalaya Processors, Inc.
Donald R. Smith, Smith & Davis, Baton Rouge, LA, for Defendant/Appellant, Terral Seed, Inc.
Peter F. Caviness, Dauzat, Falgoust Caviness & Bienvenu, L.L.P., Opelousas, LA, for Defendants/Appellants, Mamou Rice Driver & Warehouse & Nolan J. Guillot.
Homer Ed Barousse, Barousse & Craton, Crowley, LA, for Defendant/Appellant, G & H Seed Company, Inc.
J. Wendel Fusilier, Law Office of J. Wendel Fusilier, Ville Platte, LA, for Defendant/Appellant, Mamou Rice Dryer & Warehouse Supply, Inc.
Kenneth O. Privat, Privat & Regan, Crowley, LA, for Defendant/Appellant, Crowley Grain Drier, Inc.
Matthew Lundy, Hunter Lundy, Lundy & Davis, Lake Charles, LA, for Plaintiffs/Appellees, Jason Robin, Anthony Godeau, et al.
Michael Wheatley Merrit, Delhi, LA, for Defendant, Delhi Seed Company, Inc.
Court composed of HENRY L. YELVERTON, ULYSSES GENE THIBODEAUX, and BILLIE COLOMBARO WOODARD, Judges.
Plaintiffs sought to certify a class of crawfish farmers against Aventis, an insecticide manufacturer, and certain distributors of insecticide-treated rice seed. Under various legal theories, plaintiffs allege damage to their pond-grown crawfish crops as the result of the purchase and use of the insecticide. The trial court certified three plaintiff subclasses and denied plaintiffs' motion to certify a class of defendants. The defendants have appealed the certification of plaintiff subclasses. For reasons set forth below, we affirm in part and reverse in part.
We shall consider the issues for review in conjunction with one another, namely, whether the trial court erred in:
(1) abrogating Aventis' due process right to discovery of the nature of the claims against it and of absent class members;
(2) admitting the hearsay testimony of allegedly aggrieved parties in support of the numerosity requirement (3) granting plaintiffs' motion for class certification by certifying three subclasses of plaintiffs to pursue a collective claim against Aventis, manufacturer, and various rice seed distributors;
(4) failing to choose class representatives;
(5) defining three subclasses rather than one class; and,
(6) failing to establish geographic boundaries of the class consistent with the evidence presented.
This suit was instituted by Louisiana crawfish farmers who allege damage to their pond-grown crawfish crops as the result of the purchase and use of an insecticide. At this procedural stage of the suit, we are concerned only with the propriety of the certification, not with the merits of the plaintiffs' allegations.
Aventis Crop Science, USA LP (hereinafter "Aventis") manufactures Fipronil, an insecticide bearing the trade name ICON 6.2 FS. In July 1998, the United States Environmental Protection Agency authorized Aventis to market the insecticide, and it was extensively introduced into the Louisiana market in 1999. The chemical was sold in liquid form to seed distributors/applicators who, pursuant to contracts with Aventis, applied ICON to rice seed prior to planting. The purpose of the chemical treatment was to combat the rice water weevil.
In Louisiana, rice and crawfish are often conjunctively farmed, either in the same pond or in close proximity to one another. The rotation patterns for the two crops vary, but water that has been used in a rice field ("tailwater") is sometimes employed to irrigate crawfish ponds. After planting rice, tailwater might, also be discharged into surrounding ditches and canals, and a downstream crawfish farmer may retrieve this tailwater and introduce it into his pond. Crawfish are not always grown in rice fields.
The state-wide crawfish harvest declined by millions of pounds from 1999 to 2000. Plaintiffs allege that the use of ICON-treated rice seed in certain ponds has had a devastating effect on co-cultured crawfish harvests in 1999 and 2000. Some farmers have experienced total loss of their crawfish crop; others have experienced a commercially damaging decline.
Plaintiffs allege that once reports began to mount regarding ICON's ill effects on the crawfish industry, Aventis conducted field tests and concluded that any increase in crawfish mortality resulted either from a misapplication of ICON, was unrelated to ICON, or was attributable to the severe 1998 drought. Plaintiffs also allege that the Department of Agriculture only tested for the presence of Fipronil, the active ingredient in ICON. Fipronil was found in extremely low levels and, therefore, could not be conclusively linked to crawfish mortality. Plaintiffs argue, however, that these low levels result from the ingredient's tendency to rapidly break down into derivatives which bind to soil particles and do not dissolve in water.
Aventis admits that ICON's label states that the product is toxic to aquatic invertebrates, crawfish included. Aventis argues, however, that an ICON-treated seed is toxic to crawfish only if the seed is eaten. This should not happen, since by the time crawfish are introduced into a rice field approximately six to eight weeks after planting, the rice seed has sprouted and only traces of ICON residue remain. The defendants attribute the decline in crawfish production to the drought, which transpired at roughly the same time that ICON was introduced into the Louisiana market.
Plaintiffs sued Aventis, manufacturer of ICON, and eventually named as defendants several seed distributors/applicators who sold ICON-treated seed to their respective customers. Suit was brought under various legal theories, including product liability, redhibition, negligence, negligent misrepresentation, fraudulent concealment, intentional misrepresentation, fraud, and breach of contract. Plaintiffs proposed three plaintiff subclasses and also sought certification of a defendant class.
Following trial on plaintiffs' motion to certify a class, the judge issued written reasons for judgment on July 30, 2001. The judgment was signed on August 8, 2001 certifying three plaintiff subclasses as follows:
Subclass 3: All persons or legal entities from January of 1999 who participated in a sharecropping arrangement for the farming of crawfish in the State of Louisiana and who allege financial loss and damages as a result of its crawfish farmers' crop exposure to ICON.
The judgment denied plaintiffs' motion to certify a class of defendants.
In addition to filing their respective motions for appeal of the class certification, some named defendants also sought supervisory writs, which writ applications were granted and converted into an appeal. Those distributor defendants who presently appeal are Nolan J. Guillot, Inc. (hereinafter "Nolan Guillot"), Mamou Rice Drier and Warehouse, Inc. (hereinafter "Mamou Rice"), G & H Seed Company, Inc. (hereinafter "G & H Seed"), Crowley Grain Drier, Inc. (hereinafter "Crowley Grain"), Terral Seed, Inc., and ICON manufacturer, Aventis.
We note here that at oral argument, plaintiffs' counsel stipulated that they could not prove a claim for certification against Terral Seed, Inc., and that this defendant should be dismissed from the suit. We acknowledge this stipulation, reverse against Terral Seed, Inc., and dismiss it from this suit.
LAW AND DISCUSSION
Before discussing the class certification in general, we address the trial court's discovery ruling. During the course of litigation, the trial court granted in part and denied in part Aventis' Motion to Compel. The court ordered plaintiffs to submit to Aventis a list of witnesses whom they intended to use at the class certification hearing, and Aventis was given the right to depose all listed witnesses prior to the hearing. The defendant sought supervisory review of the judgment on the motion from both this court and from the Louisiana Supreme Court. A panel of this court denied writs and stated that "[t]he trial court did not abuse its discretion in this discovery ruling." The supreme court simply denied writs. Aventis now prays that we remand the matter to afford full...
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