Summary of a Recent
Judicial Development in
Environmental Law

Court Finds Plaintiff's "Failure to Warn" Claims
Were Not Pled with Sufficient Particularity

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In E.I. DuPont de Nemours and Co. v. Desarrollo Industrial Bioacuatico S.A., 857 So. 2d 925 (Fla. Dist. Ct. App. 2003), the Florida Court of Appeals, Fourth District, reversed the decision of the trial court, which had entered judgment in favor of a shrimp farmer. Seeking recovery for death of shrimp, allegedly caused by the use of a pesticide manufactured by E.I. DuPont de Nemours & Co. (DuPont), an Ecuadorian shrimp farmer brought this negligence action. The instant court held that farmer could not prevail on his claim of failure to warn because the claim was not pled with sufficient particularity.

Background

Desarrollo Industrial Bioacuatico S.A. (Desarrollo) owned and operated a shrimp farm in Ecuador, which consisted of many large shrimp ponds. Id. at 926. The shrimp ponds were located downstream from banana farms, Ecuador's largest agricultural industry. Id. In the early 1990s, Ecuadorian banana farmers were combating Black Sigatoka, a devastating fungus that developed after heavy rainfalls caused by El Nino. Id. Benlate, manufactured by DuPont, was one of the fungicides used by banana farmers to combat the fungus. Id. In 1992, Ecuadorian shrimp began dying at a rapid rate. Id. After scientists discovered lesions on the shrimp, which some alleged were caused by Benlate, Desarrollo filed suit against DuPont, claiming that the fungicide was responsible for the shrimp deaths. Id. at 926-27. In its complaint, Desarrollo alleged that "DuPont sold its products to the Ecuadorian banana farmers and had a duty to test its product to make sure that it was safe for the environment in which it was being used and would not harm non-target organisms or businesses which would come into contact with the chemical." Id. at 927. During discovery, Desarrollo questioned witnesses regarding the labels and warnings issued by DuPont regarding Benlate. Id. at 927. Thereafter, DuPont moved for summary judgment alleging that "despite [Desarrollo's] framing of its complaint, the case was a pure and simple failure to warn complaint which was precluded by the Fungicide Insecticide and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136-136y, which regulates the warning labels placed upon pesticides." Id. at 927-28. The court denied DuPont's motion for summary judgment, and ultimately the jury returned a verdict against DuPont. Id. at 929. It found that DuPont was negligent only for a failure to warn of Benlate and awarded $10,063,165 plus significant prejudgment interest. Id. DuPont appealed. Id.

Arguments

Desarrollo alleged that "DuPont sold its products to the Ecuadorian banana farmers and had a duty to test its product to make sure that it was safe for the environment in which it was being used and would not harm non-target organisms or businesses which would come into contact with the chemical." Id. at 927.

DuPont alleged that "despite [Desarrollo's] framing of its complaint, the case was a pure and simple failure to warn complaint which was precluded by [FIFRA] . . . ." Id. at 927-28.

Analysis and Holdings

The instant court framed its reasoning by quoting from Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561, 563 (Fla. 1988). See id. at 929. In Arky, the Florida Supreme court held that "where a claim is not pled with sufficient particularity for the opposing party to prepare a defense, the plaintiff is precluded from recovery on the unpled claim and a directed verdict is properly entered." Id. Similarly, Desarrollo never pled failure to warn as a cause of action in negligence, and its allegations made no mention of it. Id. at 930. The court held that Desarrollo's counsel took a calculated risk that the trial court ruled correctly in determining that the complaint properly pled a claim for failure to warn. Id. at 931. However, in doing so, the trial court erred and reversal was required. Id.

The case was decided on September 17, 2003.