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FOX v. CHEMINOVA

August 25, 2005.

JAMES E. FOX; JOHN H. MAKOWSKY; and NICHOLAS J. GRISMALE, Individually and on Behalf of all others similarly situated, Plaintiffs,
v.
CHEMINOVA, INC.; CHEMINOVA AGRO A/S; AGREVO ENVIRONMENTAL HEALTH, INC.; CLARKE MOSQUITO CONTROL PRODUCTS, INC; ZOECON CORPORATION; and CORPORATIONS "1" THROUGH "5", Defendants.



The opinion of the court was delivered by: THOMAS PLATT, JR., Senior District Judge

MEMORANDUM AND ORDER

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.

  BACKGROUND

  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.

  The Parties

  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. 1)

  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.

  Procedural Background

  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 ...


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