The opinion of the court was delivered by: THOMAS PLATT, JR., Senior District Judge
Defendants Cheminova, Inc. and Cheminova A/S ("Defendant" or
"Cheminova") move against Plaintiffs James E. Fox, John H.
Makowsky, Nicholas J. Crismale on behalf of all others similarly
situated ("Plaintiffs") (i) for summary judgment under Federal
Rule of Civil Procedure 56; (ii) to exclude ten (10) of
Plaintiffs' experts pursuant to Daubert v. Merrill Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993); and (iii) to strike
the Plaintiffs' supplemental expert affidavits that were produced
as a response to Defendant's Daubert motion.
For the ensuing reasons, all motions are DENIED.
As this Court has previously written on a motion to dismiss in
this case, see Fox v. Cheminova, 213 F.R.D. 113 (2003), familiarity with the
factual background as outlined in that opinion will be presumed.
Thus, the Court will only briefly detail the relevant events.
This lawsuit is brought on behalf of licensed commercial
fishermen from New York and Connecticut who were in the business
of trapping and selling lobsters in the Long Island Sound ("LI
Sound") and who were damaged as a result of the die-off of the
lobsters that began in September 1999.
Plaintiffs brought this action against various manufacturers of
insecticides (adulticides and larvicides) that were sprayed in
and around the New York Metropolitan area beginning in September
1999 to combat the perceived threat of the West Nile Virus
("WNV") outbreak that first appeared in Queens County. Plaintiffs
allege that the pesticides caused or contributed to the massive
mortalities of lobsters which resulted in a loss of revenue from
harvesting and selling lobsters.
Defendant Cheminova is a manufacturer and distributor of a
certain pesticide called Fyfanon®ULV ("Fyfanon"), an adulticide
containing the active ingredient malathion.*fn1 The West Nile Virus Outbreak and Application of Pesticides
In August and early September 1999, an encephalitis type
illness was discovered among several, mostly elderly, people in
Queens County, New York City.
Plaintiffs contend that City officials, although not at that
stage believing that the situation presented a true emergency,
decided to spray the entire city of New York twice with
pesticides. Plaintiffs also contend that this plan was developed
by Gerald McCarty ("McCarty"), then a member of the Mayor's
Office of Emergency Management. Plaintiffs claim that McCarty and
his assistants had no experience responding to such a disaster.
Defendant Cheminova, the movant herein, paints a different
picture in which, on September 3, 1999, trained experts made an
informed decision to administer the pesticides given the state of
emergency. The superintendent for the Division of Vector Control
in Suffolk County Department of Public Works, his counterpart in
Nassau County, and representatives from NYC Department of Health,
NYC Mayor's Office of Emergency Management, New York State
Department of Environmental Conservation, the Federal Centers for
Disease Control and Prevention in Atlanta ("CDC"), and Mayor Rudolph Giuliani all met on September 3, 1999.
According to the Defendant, the parties made a unanimous decision
to begin application.
What followed was the application (ie. the spraying) of various
pesticides in and around the Metropolitan New York area,
including Nassau and Suffolk counties on Long Island, all five
Boroughs of New York City, Westchester County, and Connecticut.
The spraying involved various "adulticides" (products used to
kill adult mosquitos that are airborne) and "larvicides"
(products used to kill mosquitos still in their larva stage).
Plaintiffs contend that numerous areas were treated along the
shoreline of the LI Sound, and in some instances directly over
the islands and waters of the LI Sound. Several types of
pesticides were applied aerially and by truck and other
ground-based methods, and several types were used to treat storm
drains and other areas where mosquitos and mosquito larva breed.
In this suit, Plaintiffs contend that the pesticides sprayed in
September and October of 1999 caused or contributed to the
lobster die-off in Long Island Sound. In addition, the Plaintiffs
further allege that the damaging effects of the pesticides on the
lobster population were exacerbated by the passing of the
Tropical Storm Floyd from September 17-19, 1999, which dumped
large amounts of rain and caused a significant runoff of effluent
and storm water to enter the Long Island Sound.
Though the case commenced on a design and manufacturing defect
theory, it has now apparently evolved into a failure to warn case with the
Plaintiffs alleging that Chemoniva's Fyfanon label in effect in
1999 did not sufficiently warn that the product should not be
applied in and around areas where lobsters are commercially
harvested. (Pl.'s Opp. Mem. at 16; Def.'s Mem. Sum. J. at 1, n.
Chronology of the Fyfanon Label
The parties disagree as to the exact chronology of the Fyfanon
label. However, it is undisputed that at the time of the spraying
in 1999, the Fyfanon label read as follows:
This product is toxic to fish. Keep out of lakes,
streams, ponds, tidal marshes and estuaries. Do not
apply where runoff is likely to occur. Do not apply
when weather conditions favor drift from areas
treated. Do not contaminate water by cleaning of
equipment, or disposal of wastes. Shrimp and crab may
be killed at application rates recommended on this
label. Do not apply where these are important
resources. This pesticide is highly toxic to bees
exposed to direct treatment or to residues remaining
in the treated area. Do not apply when bees are
actively visiting the crop, cover crop, or weeds
blooming in the treated area. Apply this product only
as specified on this label.
It is also undisputed that, at the time of the 1999 spraying,
the Defendant had applied for and received EPA approval for an
amended (but not yet implemented) label that provided as follows:
This pesticide is toxic to fish, aquatic
invertebrates, and aquatic life stages of amphibians.
For terrestrial uses, do not apply directly to water, or to areas where
surface water is present or to intertidal areas below
the mean high water mark. Drift and runoff may be
hazardous to aquatic organisms in areas near the
application site. Do not contaminate water when
disposing of equipment washwaters.
Note for Aquatic Uses: Broadcast use only over
intermittently flooded areas. Application may not be
made around bodies of water where fish or shellfish
are grown and/or harvested commercially.*fn2
The parties dispute when the EPA approved this amended label
and thus consequently, when the Defendant was required to
implement the new label on its product. A corollary issue is also
whether, assuming the new label were timely implemented, it would
have changed the way the pesticide was applied in this situation.
Plaintiffs maintain that the new language should have been
included on the Defendant's label as early as 1994. Furthermore,
the Plaintiffs maintain that, had the new amended label been
"timely" implemented, it would have prevented the spraying which
they claim caused the lobsters to die-off. To support this
argument, the Plaintiffs mainly point to the language on the
amended label: "Application may not be made around bodies of
water where fish or shellfish are grown and/or harvested
commercially." Defendant, however, claims that although they applied to the
EPA as early as 1994 to amend the Fyfanon label, the EPA did not
officially approve the amendment until 1999. Instead, the
Defendant claims that the EPA "accepted with comments" the
proposed changes, thus withholding final approval until the
comments were implemented. In any event, Defendant argues that a
change in the language of the label would not have altered the
way that Fyfanon was applied.
On August 25, 2000, Plaintiffs filed a complaint asserting that
as a result of the application of the Defendants' pesticides and
insecticides to the Greater New York area, the lobsters died-off
in the Long Island Sound.
On February 28, 2003, this Court granted class certification
status to the Plaintiffs, finding that the requirements of
numerosity, commonality, typicality, and adequate representation
had been met.
On December 15, 2004, Defendants AgrEvo Environmental Health,
Inc.*fn3 and Clarke Mosquito Products, Inc. settled their
cases with Plaintiff, leaving Cheminova and Zoecon Corporation as
the remaining Defendants. On November 30, 2004, Defendant
Cheminova filed a motion for summary judgment against the
Plaintiffs and a motion in limine to exclude the Plaintiffs'
experts. Zoecon did not join in the motions and was dismissed from the action in August ...