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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 plaintiff’s 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 defendant’s 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 defendant’s 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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