Summary of a Recent
Judicial Development in
Environmental Law

Claims Voluntarily Dismissed to Facilitate Appeal Cannot be Resurrected
on the Basis of Mistake of Law

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Plourde v. Gladstone, 69 Fed. App'x 485 (2nd Cir. 2003), the United States Court of Appeals for the Second Circuit affirmed the ruling of the district court, which had granted the defendants' motion for summary judgment on several of the plaintiffs' claims and dismissed the remainder of the plaintiffs' claims with prejudice. A dairy farmer and his family brought the instant toxic tort action against an adjacent farmer, an herbicide application company, and the owner of the company alleging fraud, conspiracy to commit fraud, intentional personal injury, battery, intentional infliction of emotional distress (IIED), negligent infliction of emotional distress, nuisance, trespass, and negligence.

Background

The plaintiffs brought the instant toxic tort action against the defendants alleging damages from the defendants' herbicide sprayings in 1999 and 2000. Id. at 487. They claimed that the herbicides drifted onto their property causing damages to trees and shrubs, personal illness, and injuries to the plaintiffs' dairy herd. The defendants first moved to exclude the testimony of the plaintiffs' expert witness, and then motioned for summary judgment as to the plaintiffs' claims for conspiracy to commit fraud, fraud, intentional personal injury, battery, IIED, estoppel based on spoliation of the evidence, intentional trespass, nuisance, negligence, and injunctive relief. Id. The district court granted all of the defendants' motions except as to the plaintiffs' nuisance, negligence, and injunctive relief claims. Id. The plaintiffs then voluntarily moved to dismiss the remaining claims, and the court dismissed those claims with prejudice. Id. Following the bevy of motions and dismissals, the plaintiffs filed the instant appeal.

Arguments

The plaintiffs argued that the district court erred in dismissing their claims for nuisance, negligence, and injunctive relief; in excluding the testimony of their expert witness; and in granting summary judgment as to all of their other tort claims. Id. at 487-88.

Analysis and Holdings

The court first discussed the plaintiffs' argument regarding the dismissal of their claims for nuisance, negligence, and injunctive relief. Id. at 487. The plaintiffs asserted that they never intended to dismiss these claims entirely, but did so "to obtain the right to take an immediate appeal of the Rulings on the Merits." Id. However, the plaintiffs failed to "cite [anything] in the record to indicate that they did not intend to dismiss the remaining claims entirely." Id. Therefore, the court ruled the district court acted appropriately in dismissing the claims with prejudice. Id.

Next, the court addressed the plaintiffs' expert witness argument. Id. at 487-88. Because their expert witness was a "toxicologist and not a medical doctor" and he inappropriately relied on hearsay, the court ruled that the district court acted appropriately in excluding the witness's testimony. Id. at 488.

Finally, the court addressed the plaintiffs' argument that the district court inappropriately granted summary judgment as to the additional tort claims. Id. After examining each of the plaintiffs' tort claims in turn, the court ruled that each lacked a sufficient evidentiary backdrop to be maintained. Id. Therefore, the instant court affirmed. Id. at 488-89.

The case was decided on June 27, 2003.