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ARTICLE ID 47037
$________ NET COMBINED - TOXIC TORT - FERN DAMAGE CAUSED BY THE CHEMICAL FUNGICIDE BENLATE - EXCESSIVE BACTERIA CAUSES LEAF DISTORTION - LOSS OF PROFITS TO 27 SEPARATE GROWERS OF LEATHER LEAF FERNS.
Miami-Dade County
This consolidated action was brought by 27 separate growers of
leather leaf ferns, a popular fern used in floral arrangements.
The growers, all from Costa Rica, claimed in this consolidated
action that the defendant E.I. Du Point De Nemours & Company
negligently produced and marketed the fungicide Benlate. The
plaintiffs alleged that Benlate caused a distortion in the leaves
of the leather leaf fern which rendered them unmarketable. The
defendant maintained that the fern leaf distortion resulted from
a plant virus and did not result from the use of its product.
The plaintiff growers testified that they sprayed the fungicide
Benlate on their ferns and that the leaves became twisted and
distorted. The testimony established that the chemical was
sprayed on the ferns by various methods, including application on
nursery seedlings and mature plants through an irrigation system.
The growers testified that within 45 days of application of
Benlate, the ferns exhibited a noticeable distortion of the
leaves.
The plaintiffs botanist testified that the Benlate caused an
excess of bacteria on the plant leaves resulting in the leaf
distortion. He testified that he conducted studies in a laboratory
environment and discovered that the Benlate readjusts the
endophytic bacteria population and allows the pseudomonas
bacteria to dominate, resulting in the leaf distortion.
The plaintiffs contended that the distorted ferns were not
marketable for floral arrangements. The plaintiffs alleged that
millions of leather leaf ferns were damaged by Benlate over a 15-
year period beginning in approximately the late 1980s. The 27
plaintiffs requested roughly $10 million each in damages for a
total of $________ million.
The plaintiff offered evidence of approximately ________ prior
claims involving use of Benlate in both the United States and
Costa Rica. Thus, the plaintiff argued that the defendant was on
notice of the problem yet continued to produce and market the
product. The plaintiff alleged that the defendant was negligent
in failing to adequately test Benlate before marketing it and in
failing to perform bacterial testing when complaints about the
product began.
The defendants expert in plant diagnostics testified that the
distortion of the plaintiffs fern leaves was caused by a virus.
This expert testified that for purposes of this lawsuit, he
conducted tests related to Benlate application on leather leaf
ferns in both Florida and Costa Rica. The defendants expert
contended that the application of Benlate did not cause a
distortion of the plaints leaves.
The defendant argued that in addition to the virus, the ferns
were affected by lack of proper draining, improper fertilization,
inadequate irrigation and other factors for which the growers
were responsible. In addition, the defense claimed that a
hurricane resulted in the loss of many plants in the Costa Rican
growing area.
The jury awarded the plaintiffs a combined gross total of $________
million. The jury also assessed varying percentages of
comparative negligence against each of the 27 individual
plaintiffs. One plaintiff was found to be 70% comparatively
negligent; 12 plaintiffs were assessed 50% comparative negligence
and 14 plaintiffs were found to be 45% comparatively negligent.
After reduction for comparative negligence the total amount of
the net verdict against the defendant was $57.9 million.
The jury also found that the claims of seven plaintiffs were
partially barred by the applicable statute of limitations. The
amount of the verdict reduction stemming from the statute of
limitations finding is pending. Both sides have filed post-trial
motions.
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