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West v. G & H Seed Co.8/28/2002
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR TRIAL ON THE MERITS.
Plaintiffs sought to certify a class of crawfish farmers against Aventis, an insecticide manufacturer, and certain distributors of insecticide-treated rice seed. Under various legal theories, plaintiffs allege damage to their pond-grown crawfish crops as the result of the purchase and use of the insecticide. The trial court certified three plaintiff subclasses and denied plaintiffs' motion to certify a class of defendants. The defendants have appealed the certification of plaintiff subclasses. For reasons set forth below, we affirm in part and reverse in part.
I. ISSUES
We shall consider the issues for review in conjunction with one another, namely, whether the trial court erred in:
(1) abrogating Aventis' due process right to discovery of the nature of the claims against it and of absent class members;
(2) admitting the hearsay testimony of allegedly aggrieved parties in support of the numerosity requirement;
(3) granting plaintiffs' motion for class certification by certifying three subclasses of plaintiffs to pursue a collective claim against Aventis, manufacturer, and various rice seed distributors;
(4) failing to choose class representatives;
(5) defining three subclasses rather than one class; and,
(6) failing to establish geographic boundaries of the class consistent with the evidence presented.
II. FACTS AND PROCEDURAL HISTORY
This suit was instituted by Louisiana crawfish farmers who allege damage to their pond-grown crawfish crops as the result of the purchase and use of an insecticide. At this procedural stage of the suit, we are concerned only with the propriety of the certification, not with the merits of the plaintiffs' allegations.
Aventis Crop Science, USA LP (hereinafter "Aventis") manufactures Fipronil, an insecticide bearing the trade name ICON 6.2 FS. In July 1998, the United States Environmental Protection Agency authorized Aventis to market the insecticide, and it was extensively introduced into the Louisiana market in 1999. The chemical was sold in liquid form to seed distributors/applicators who, pursuant to contracts with Aventis, applied ICON to rice seed prior to planting. The purpose of the chemical treatment was to combat the rice water weevil.
In Louisiana, rice and crawfish are often conjunctively farmed, either in the same pond or in close proximity to one another. The rotation patterns for the two crops vary, but water that has been used in a rice field ("tailwater") is sometimes employed to irrigate crawfish ponds. After planting rice, tailwater might also be discharged into surrounding ditches and canals, and a downstream crawfish farmer may retrieve this tailwater and introduce it into his pond. Crawfish are not always grown in rice fields.
The state-wide crawfish harvest declined by millions of pounds from 1999 to 2000. Plaintiffs allege that the use of ICON-treated rice seed in certain ponds has had a devastating effect on co-cultured crawfish harvests in 1999 and 2000. Some farmers have experienced total loss of their crawfish crop; others have experienced a commercially damaging decline.
Plaintiffs allege that once reports began to mount regarding ICON's ill effects on the crawfish industry, Aventis conducted field tests and concluded that any increase in crawfish mortality resulted either from a misapplication of ICON, was unrelated to ICON, or was attributable to the severe 1998 drought. Plaintiffs also allege that the Department of Agriculture only tested for the presence of Fipronil, the ac
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