Kleiss v. Cassida
Case Date: 06/26/1998
Court: 4th District Appellate
Docket No: 4-97-0604
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IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT BARRY KLEISS and CAROLYN KLEISS, d/b/a ) Appeal from KLEISS BERRY FARM, ) Circuit Court of Plaintiffs-Appellants, ) Douglas County v. ) No. 95L5 JERALD CASSIDA, a/k/a JERRY CASSIDA, ) and SANDOZ CROP PROTECTION CORPORATION, ) Defendants-Appellees, ) and ) JAMES FISH and RON HUDSON, d/b/a CUSTOM ) Honorable SPRAY SERVICE, and ILLINI F.S., INC., ) Frank W. Lincoln, Defendants. ) Judge Presiding. _________________________________________________________________ JUSTICE COOK delivered the opinion of the court: Plaintiffs, Barry and Carolyn Kleiss, farm 185 acres of grain crops, fruits, and vegetables in Douglas County. They filed this suit contending they suffered crop damage in 1990. Plaintiffs alleged two separate sprayings of herbicides on nearby farms, one by defendant Jerald Cassida (Cassida) and one by Fish and Hudson Custom Spray Service (Fish and Hudson), damaged their crops because the herbicides contained dicamba. Dicamba, a plant growth regulator, is a chemical used by farmers to kill weeds. It is the active ingredient in two different herbicides, Banvel and Marksman. Defendant Sandoz Crop Protection Corporation (Sandoz) is the sole manufacturer of dicamba. Designed to kill broadleaf weeds, dicamba can also damage broadleaf crops, by causing cupping of the leaves, and curling and twisting of the stems, if it comes into contact with them. Excluding a direct application, dicamba can come into contact with broadleaf plants in two ways: spray drift and volatilization. High temperatures, wind, and the manner of application affect spray drift and volatilization. Spray drift occurs as a result of the conditions during the application of dicamba. Under some circumstances, droplets of spray containing dicamba will move off the spray target area, blow through the air, and land on plants outside of the target area. Volatil- ization is associated with conditions after the application of dicamba. After the chemical is applied to the target area, under some conditions, it will become a vapor and deposit on plants outside the target area. Barry Kleiss first noticed damage to his crops on April 27, 1990. All the crops and fruit trees on his farm showed leaf cupping, discoloration, and twisted stems. Kleiss believed the crops suffered from dicamba damage. Around April 30, 1990, Kleiss phoned Steven Sturgeon from the Illinois Department of Agriculture (Department), and Dale Bateman, a consultant for Kleiss, complaining of dicamba damage to his crops. He asked the Department to investigate the source of the injury affecting his crops. Both Sturgeon and Bateman visited Kleiss' farm several times in 1990. In May 1990, Kleiss noticed the green beans on his farm quit growing, as well as some cupping, crinkling, and discolor- ation of the leaves. Some of the crops were starting to recover after this time, but additional damage began to appear around June 1, 1990. On June 14, 1990, Kleiss observed cupping and discoloration of leaves, and twisting of stems on virtually all of his crops. On June 29, 1990, Kleiss noticed that injury to the crops was more visible and new growth showed leaf cupping. He believed the source of the dicamba damage came from an area to the south of his field since the plants at the south end of his field were smaller than those at the north end. Kleiss used a number of herbicides on his farm in 1990, including Lasso, Round-up, Duel and 2-4-D. Kleiss had no record of his own chemical use in 1990, but testified he did not use dicamba on his farm. He believed the chemicals he did use do not cause the symptoms he described as dicamba damage. He admitted his crops, in addition to dicamba damage, also had wind damage, environmental, mechanical, and bacterial problems, scorching, seedling blight, nitrogen deficiency, and powdery mildew. However, he did not believe he had a loss of yield due to any of those factors or individual error. On April 26, 1990, from about 7 a.m. to 2:30 p.m., defendant Cassida sprayed an 80-acre cornfield (Findley 80), whose northern boundary is located one mile to the south of the southern boundary of Kleiss' farm, with a mixture that included Banvel. The concentration of Banvel in the mix was .17 pounds per acre, well within the recommended label rate of .5 to 1.0 pounds per acre. Cassida testified the spray booms were as low to the ground as possible, and he used a nozzle that produced a coarse spray, all to prevent spray drift. It was Cassida's practice, from which he did not deviate on April 26, to read and follow the Banvel labels on proper use of the product. Spraying Banvel is not recommended when it is too hot (above 85 degrees) or too windy (more than 5 miles per hour), or if sensitive crops, including broadleaf plants, fruits, and vegetables, are nearby. Cassida understood "nearby" to mean in the next field or within a quarter of a mile. Cassida did not consider it too windy to spray, nor did he believe the temperature exceeded 85 degrees on April 26. However, wind and temperature information gathered from two Champaign County locations for April 26 indicated that on that date wind speeds at the two locations ranged from 6.2 to 28.7 miles per hour from the south or southwest. Temperatures ranged from 70 degrees at 7 a.m. to 85 degrees at noon. Cassida knew Kleiss had a farm to the north but did not consider it to be in the nearby area. Cassida experienced spray drift before, but the farthest he had known it to go was around 600 feet. Another herbicide spraying occurred on May 31, 1990, when Steven Miller, an employee of defendant Fish and Hudson sprayed a cornfield (Deavers 40), located about one-quarter mile southeast of Kleiss' farm, with a mixture containing Marksman. Miller believed the wind was blowing about 5 miles per hour and the temperature was less than 85 degrees that day. He was aware of label precautions warning about drift, temperature, and applying the herbicide near sensitive crops. Miller's experience was that dicamba could drift from 300 to 500 feet. As a result of these two sprayings, and the alleged dicamba damage to their crops, plaintiffs filed suit against several parties. Count I of their complaint alleged that on April 26, 1990, Cassida negligently sprayed Banvel on the Findley 80, which damaged plaintiffs' crops. Counts II through IV alleged Fish and Hudson and Illini F.S. were negligent in spray- ing Marksman on the Deavers 40 around May 24, 1990, which damaged plaintiffs' crops. Counts VI and VII were brought against Sandoz. Count VI alleged strict product liability in tort in that Sandoz exclusively produced and distributed Marksman and Banvel, "unreasonably dangerous" products that damaged plain- tiffs' crops. Count VII alleged wilful and wanton misconduct in Sandoz's manufacturing, selling, and distributing the herbicides. A jury trial began on January 30, 1997. In addition to the foregoing evidence, the following testimony was presented at trial. Steven Sturgeon, a plant and pesticide specialist for the Illinois Department of Agriculture, was unable to determine the cause or the source of injury to Kleiss' crops after visiting the farm on numerous occasions in 1990. He did not positively know if chemical damage was the cause, much less if Banvel or Marksman was involved. The damage he observed could have been caused by environmental factors. He also found at least three or four dicamba sprayings took place on farms in the area around the time Kleiss began to experience difficulty with his crops. Dr. Malcolm Shurtleff, an extension plant pathologist at the University of Illinois with a Ph.D. in plant pathology, had seen spray drift that travelled several miles and damaged plants. Shurtleff did not elaborate as to what conditions were necessary for spray to drift several miles or whether the spray was capable of causing damage after such a drift. Dr. Shurtleff did not visit Kleiss' farm in 1990; he only examined photos of the crops. It was his opinion to a reasonable degree of scien- tific certainty that the main cause of the damage he observed in the photos, including cupping of leaves and twisting of stems, was caused by plant growth regulator. However, he found Kleiss' plants to be suffering from a wide variety of injuries. Dr. Shurtleff testified that there was no way to tell what plant growth regulator was involved without a chemical analysis, and even if the chemical was dicamba, there was no way to be sure whether it was in the form of Banvel or Marksman. He could not give an opinion as to the source of the damage; however, he believed there would have had to have been multiple exposures in this case. The damage he saw in the photos would affect yield. Dale Bateman, a retired University of Illinois exten- sion advisor in agriculture for Douglas County, worked as a chemical damage consultant for Kleiss. Bateman visited Kleiss' farm on April 30, June 11, and June 14, 1990, and observed cupping of leaves, as well as color changes on the leaves of the crops. On June 30, Bateman observed more severe damage on the south side than the north side of the farm indicating a chemical coming from the south. Bateman gave several opinions, which he stated were within a reasonable degree of agricultural certainty. He provid- ed no reasoned analysis for any of his conclusions, supporting them only based on his work experience. Bateman concluded, "from [his] experience in the 30 some years of investigating crops," that the injuries he observed to Kleiss' crops in 1990 were caused by dicamba, found in Banvel and Marksman, and that there was more than one exposure of dicamba to Kleiss' crops in 1990. Bateman did notice damage that may have been caused by factors including wind or insects, but the overriding injury resulted from airborne contaminants. He concluded Kleiss suffered econom- ic loss as a result of the damage to the crops. Bateman also testified that dicamba can drift up to two miles and still have the effects he observed on Kleiss' crops. The sole basis for that opinion was his "experience in the 30-- over 20 to 25 year period with dicamba." On cross-examination, the following exchange took place: "Q. Now, I think you indicated you had an opinion on drift, that drift could go two miles, is that correct? A. That's correct. Q. You have any written documentation to support your opinion, or was this your experience? A. My experience. Q. Okay. No written documentation, right? A. Right." Bateman was not aware of nor had he conducted any research regarding how far dicamba could drift. Bateman also concluded the information contained on the Banvel and Marksman labels was not specific enough. Both labels stated the product should not be sprayed near, in the vicinity, or if the wind is moving in the direction of nearby sensitive crops, but neither defined what "nearby" or "in the vicinity" meant. Bateman was questioned: "Q. What, in your background and your experience, has led you to form the opinion that you have?*** A. 20 years of experience in the field --20 years of field experience." Bateman's training in labelling consisted of label interpreta- tion, rather than label preparation. It was also his opinion based on his 20 years' experi- ence that Marksman and Banvel were unreasonably dangerous prod- ucts as manufactured and entered into the stream of commerce by Sandoz. Bateman gave no explanation for this opinion. Dr. Richard Wilson holds a Ph.D. in plant physiology and is a former employee of Sandoz. He has researched off-target drift of pesticides for over 18 years and is a member of the Spray Drift Task Force (SDTF), an organization that completed a study of pesticide drift in 1996. Wilson authored a 1996 report on Banvel drift and volatilization based on a literature review, SDTF results, and his own research. The farthest that SDTF studies detected dicamba spray drift, under extreme conditions (spray boom high from the ground, high winds, and a nozzle producing many small droplets), was 600 feet off target downwind. Wilson was familiar with about 2,000 scientific articles on spray drift, and none allowed for the possibility of drift as far as a mile away. Wilson also studied volatility. Under extreme condi- tions, 20 feet downwind was the farthest Wilson could measure any chemical. Based on a reasonable degree of scientific certainty, 20 feet downwind is as far as volatility can be measured and injury to a plant occurs only at less than 20 feet. Wilson also calculated what the spray drift would have been under the conditions when Cassida sprayed on April 26, 1990, and concluded no spray drift would have deposited dicamba beyond 200 to 300 feet downwind. It was his opinion to a reasonable degree of scientific certainty that none of the spraying done by Cassida could have drifted or volatized to cause damage to Kleiss' farm, located 1 to 1 |