October 12, 2010

Faegre & Benson Defeats Allegations of Pesticide Drift

On October 8, a Clay County, Arkansas, jury ruled in favor of five formulators of 2,4-D herbicide, rejecting claims by a group of cotton farmers that 2,4-D had drifted distances up to 100 miles to injure their cotton crops in 2006.

The trial focused on the claims of eight plaintiffs, with more than 12,000 acres of allegedly injured cotton, who were seeking over $4 million in claimed yield loss and other related damages.  The Clay County trial was the first trial of claims of 63 plaintiffs, with more than 60,000 acres of allegedly injured cotton, who are seeking in excess of $16 million.  The trial represented one of the first of its kind, where a jury has addressed claims of "localized pesticide drift" resulting in "regional air contamination."

The defendant 2,4-D formulators included Crop Production Services, Inc. (known as "UAP" in 2006); Nufarm Americas Inc.; Albaugh, Inc.; Universal Crop Protection Alliance, LLC; and Agriliance, LLC.  Crop Production Services, Inc. was represented at trial by John Mandler, Ross Johnson, Mark Carpenter and Shane Anderson of Faegre & Benson LLP.

The verdict in the case, Burns et. al v. UCPA et. al, came after 3½ years of litigation and a five-week trial on the farmers' claim that in 2006 a large number of 2,4-D applications to rice fields in northeastern Arkansas all combined to cause widespread injury to that year's cotton crop.

At trial, the plaintiff farmers claimed that more than 1,400 aerial applications of 2,4-D to rice fields over a six to eight week time period combined in a "localized drift event" resulting in "regional air contamination," where 2,4-D "loaded the atmosphere" with a sufficient amount of small particles to reach cotton fields many miles away.  2,4-D products have been sold and used since the 1940s. The plaintiffs argued that labels on the particular 2,4-D formulations at issue failed to adequately warn of the dangers of regional air contamination in areas where cotton is grown.

The defendant formulators argued that air models developed and approved by the U.S. Environmental Protection Agency (EPA) and U.S. Department of Agriculture (USDA) demonstrated that 2,4-D from legal applications made according to label directions could not have reached the plaintiffs' cotton fields in amounts sufficient to cause yield loss.  Investigators from the State of Arkansas testified that they suspected that the alleged injury may have come from applications made during temperature inversions.  Applications during temperature inversions are barred by state regulations and prohibited on the 2,4-D labels.

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