Terrence Collingsworth of Conrad & Scherer. (Diego M. Radzinschi)
The military contractor DynCorp International has mostly defeated claims that its use of an aerial herbicide harmed Ecuadorean citizens two decades ago. But the long-running litigation isn’t quite over, thanks to an appeals court ruling issued on Friday.
In an 11-page decision, the U.S. Court of Appeals for the D.C. Circuit held that a trial judge properly tossed most of the plaintiffs’ claims. The D.C. Circuit revived some tort claims brought by a group of Ecuadorean plaintiffs, however, finding that the judge erred in ruling that they required expert testimony to make their case.
The litigation grew out of Plan Colombia, an initiative from the late 1990s in which the U.S. government tried to root out Colombian drug cartels. As part of that effort, the U.S. government hired DynCorp to spray coca crops in Colombia with the herbicide glyphosate.
In a 2001 class action, Ecuadorean plaintiffs alleged that the aerial spray drifted over the country’s northern border with Colombia, sickening them and fouling their land. Copycat suits were filed and consolidated before U.S. District Judge Richard Roberts in Washington. International tort specialist Terry Collingsworth of Conrad & Scherer represents the plaintiffs.
By 2007 DynCorp and its lawyers at Hollingsworth LLP were facing claims by 3,200 individual plaintiffs, not to mention three Ecuadorean provinces that were seeking a combined $555 million in damages. But DynCorp steadily chipped away at the case. In 2010 Roberts dismissed about 1,000 plaintiffs on the grounds that they repeatedly failed to furnish completed questionnaires about their alleged exposure and injuries. Later that year, Roberts ruled that the three Ecuadorean provinces lacked standing to sue.
In February 2013, Roberts disqualified the plaintiffs’ expert witness. He then dismissed the entire case, reasoning that there was no way for the remaining plaintiffs to prevail without an expert on causation to tie DynCorp’s conduct to their injuries. We named the Hollingsworth LLP duo that represented DynCorp, Eric Lasker and Rosemary Stewart, our “Litigators of the Week” for the victory.
Turns out the case isn’t quite over. In Friday’s ruling, a D.C. Circuit panel led by Laurence Silberman affirmed that the provinces and the individuals who botched the questionnaires couldn’t sue. But the court revived the individual plaintiffs’ battery, nuisance and intentional inflection of emotional distress allegations, finding “no reason why expert testimony should be necessary to prove these claims.” The court added that “it is entirely possible that plaintiffs may be unable to produce enough evidence relating to other elements of these torts, but that is an issue for the district court to consider in the first instance.”