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September 21, 2020

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D.C. Circuit Rejects Toxic Tort Claims Based on Aerial Spraying of Herbicide

Reinforcing the importance of standing and causation in toxic tort cases, the U.S. Court of Appeals for the District of Columbia affirmed the entry of summary judgment in favor of Defendant DynCorp on key claims arising from the aerial spraying of herbicides on illegal coca crops in Colombia. See Arias v. DynCorp, No. 13-7044 (D.C. Cir. May 30, 2014). A group of Ecuadorian provinces and farmers brought suit alleging damages from the spraying near the Colombia-Ecuador border, arguing both that the herbicides drifted and that some planes inadvertently crossed the border resulting in direct spraying of Ecuadorian land. Plaintiffs alleged that the spraying caused health problems and drove people away from the affected areas, which forced the provinces to invest in additional schools and health centers and harmed their financial interests.  

The D.C. Circuit held that Plaintiffs lacked Article III standing because they failed to allege injury-in-fact and failed to prove that the financial injuries were traceable to DynCorp’s spraying. For example, the provinces claimed that they built health centers to address the high infant-mortality rate but did not contend that the medical issues were caused by spraying. The court held that the district court properly dismissed the individual Plaintiffs’ claims for crop damages because they failed to provide expert testimony demonstrating general causation. The D.C. Circuit dismissed all of Plaintiffs’ claims, except those for battery, nuisance, and intentional infliction of emotional distress because expert testimony was not necessary to prove those claims.

The authors gratefully acknowledges the assistance of Monisola O. Salaam in the preparation of this article.

© 2020 Beveridge & Diamond PC National Law Review, Volume IV, Number 218


About this Author

Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its...

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Mackenzie S. Schoonmaker Environmental Litigation Attorney Beveridge & Diamond New York, NY

Mackenzie’s practice includes both litigation and regulatory matters arising under FIFRA, the Clean Water Act, and related environmental laws.

She is passionate about conserving air, water, wildlife, and land for future generations, and enjoys helping clients navigate and enforce the detailed framework of environmental law because she believes compliance is key to preventing adverse impacts to the environment.

Mackenzie is a co-chair of Beveridge & Diamond’s Industrial Hemp & Cannabis industry team. She advises clients, and regularly writes and presents, on federal and state environmental regulations impacting this thriving industry. 

Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Mackenzie represents pesticide companies in data compensation arbitrations, focusing on defending the rights of data owners against follow-on registrants of pesticides. She has also worked extensively with task forces comprised of national and multinational companies of all sizes that operate as joint ventures or limited liability companies to generate data and other information to meet government requirements under FIFRA.

Among the wide range of issues under the Clean Water Act that Mackenzie has handled are assisting companies with responses to Clean Water Act Section 308 information requests and Clean Water Act Section 404 compensatory mitigation requirements.

Mackenzie also defends public utilities against toxic tort claims. She was part of the team that obtained a defense judgment after a three-week trial regarding claims alleging that the client supplied corrosive water to apartment buildings. The case, Cormier v. D.C. WASA, 2011 D.C. Super. Lexis 7, 84 A.3d 492 (2013), was successfully upheld on appeal.