Texas Supreme Court Rules in Favor of Ag Retailer in Drift Case
Via a member alert, ARA provided analysis from ARA member Faegre Drinker LLP on a March 3 Texas Supreme Court decision. This was in the case Helena Chemical Company v. Robert Cox, et al., No. 20-0881 (Texas 2023), which ARA highlights as an important and highly followed case focusing on the causation requirement in cases alleging yield loss to a crop from alleged exposure to pesticides.
The Court upheld and clarified its prior precedent in holding that:
“[T]he ultimate issue . . . in a toxic tort case . . . is always specific causation—whether the defendant’s product caused the plaintiff’s injury.” Bostic v. Georgia-Pacific Corp., 439
S.W.3d 332, 351 (Tex. 2014). It is important to emphasize at the outset that the plaintiffs’ injury here is not “damage” to cotton plants, such as wilted leaves. Instead, the injury for which the plaintiffs seek recovery is a financial one—decreased revenue from a reduced yield of cotton at harvest. It is therefore not enough for the plaintiffs to show that drifting herbicides reached their plants and “damaged” them in some way. Instead, they must show that Helena’s application of Sendero caused their plants to yield less cotton at harvest.
To satisfy this burden, the court held that it is not enough to merely claim that any exposure can harm the crop. In other words, visual symptoms in response to alleged exposure is insufficient. Instead, a plaintiff must show what amount of the alleged pesticide reached the crop, and whether that amount would substantially contribute to the claimed lost crop yields. In doing so, “there must be reliable evidence ruling out other plausible alternative causes.” The Court also noted that, at least in this case, lay opinions of the farmers themselves was not sufficient; expert testimony was required.
Additionally, in dealing with plaintiff’s burden of showing “whether it [was] the defendant’s product,” the Court noted that positive test samples showing the active ingredient may not carry the day if there is evidence of multiple products containing the same active ingredient being used in the geographic vicinity.
Finally, while the Court did not go so far as to explicitly require field by field (USDA fields) level causation, it made clear that a “plaintiff must show causation for the entire area for which he seeks recovery, and using U.S.D.A.’s field designations may be a useful way to do so.”
Here's a link to the full decision.
In summary, the Cox decision reinforced that traditional causation determinations applied in cases alleging yield loss to a crop from alleged exposure to pesticides, and that plaintiffs would be required to meet their burdens with reliable and admissible expert testimony based on sufficient evidence and data.
ARA was part of an amicus brief in this case and wrote a letter to the Supreme Court of Texas in August 2021 requesting it take on the case.
