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Kawamata Farms Inc. v. United Agri Products12/11/1997
ircuit court realign the Declaratory Defendants as plaintiffs. The circuit court denied these motions, because it found that the Declaratory Defendants were adverse to the Tomono Plaintiffs. As a result, during jury selection, the Liability Defendants had six of the defense's eight total peremptory challenges, and the Declaratory Defendants had the other two.
D. Discovery
Discovery in this matter was very contentious. As the manufacturer of Benlate, DuPont had exclusive possession and control of the vast majority of documents relating to the defects in Benlate. The Plaintiffs' discovery requests sought hundreds of thousands of documents, including documents that DuPont claimed were privileged. In response to some of DuPont's objections, the Plaintiffs accused DuPont of stonewalling. From the commencement of discovery in November 1992, until the post-trial issuance of an amended punitive sanction order on May 16, 1995, the circuit court issued fifty-four discovery orders against DuPont. Of those fifty-four discovery orders, twenty-seven imposed sanctions for discovery violations. Five of the orders contained findings that DuPont had intentionally withheld material evidence from the Plaintiffs. DuPont challenged the circuit court's discovery and other pre-trial orders by filing three petitions for writs of mandamus in this court in Case Nos. 17369, 17834, and 18004, which we denied.
E. The Trial
The trial lasted seven months, from June 1994 to January 1995. The crux of the Plaintiffs' case was that a defect in Benlate had injured their plants, soils, and farm structures. The Plaintiffs asserted that: (1) Benlate had been contaminated with atrazine and sulfonylureas, which are herbicides, when the Liability Defendants manufactured it; and (2) the benomyl in Benlate produced phytotoxic substances called butyl isocyanate and/or dibutylurea. Because of these defects, the Benlate caused crop damage.
One of the controversies occurred during opening statements, when the Plaintiffs' counsel made a brief reference to a verdict against DuPont in another case entitled Peterson Brothers, Inc. v. E.I. DuPont De Nemours and Co. and Greenlight Chemical Co., Case No. 91-CI-12100, 24th Judicial District Court of Bexar County, Texas. Following an objection, counsel for the Liability Defendants moved for a mistrial. After hearing the parties' arguments regarding the relevancy of the verdict to the instant case, the circuit court denied the motion.
There were at least three major discovery disputes during the trial, which occurred when Plaintiffs' counsel discovered relevant documents showing herbicide contamination of Benlate at numerous farms where Benlate had been applied. In each of these three major discovery disputes, DuPont had failed to either produce or properly identify documents in response to previous discovery requests and circuit court orders.
For example, during the trial in late July 1994, the Plaintiffs moved for sanctions against DuPont based upon their discovery of the deposition testimony of a DuPont employee, Dennis Keeler (Keeler), in a Benlate-related case in Florida entitled Smith v. DuPont, slip op., Case No. 92-240-CA, Third Circuit Court, Florida. At that deposition on June 8 and 9, 1994, Keeler had been shown a document that summarized the results of Benlate testing that DuPont had carried out or commissioned. Upon review of the document, Keeler had testified that the Benlate-testing summary appeared to be accurate. Keeler identified three sets of documents as containing nearly one hundred percent of all contamination test results of Benlate 50 DF. However, in the instant case, DuPont had not identified these Benlate test
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