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Hagen v. Dow Chemical Co.11/12/1993
Rehearings Denied December 16, 1993.
, 50 St.Rep. 1421
Submitted on Briefs March 18, 1993.
Harold and Mary Hagen filed suit in the District Court for the Fifth Judicial District in Madison County, to recover damages sustained when over 8000 pounds of fish died subsequent to the Madison County Weed Management District's application of a weed poison adjacent to the ditch which supplied water to the Hagens' fish farm. The Hagens appeal from the District Court's order granting summary judgment in favor of the Weed District and Dow Chemical Company. The District Court concluded that the Hagens failed to submit sufficient evidence to establish that exposure to the weed poison caused the death of the fish.
We reverse.
The following issues are presented:
1. Did the court err when it granted summary judgment in favor of the defendants on the basis that, as a matter of law, there were no genuine issues of material fact regarding the cause of plaintiffs' damages?
2. Did the court err when it granted summary judgment in favor of Dow Chemical on the claim for punitive damages on the basis that there were no issues of material fact regarding actual fraud or malice on the part of Dow?
On July 12 and July 20, 1989, the Madison County Weed Management District sprayed a mixture of Tordon 22K, manufactured by Dow Chemical, and 2,4-D adjacent to the ditch which was the water supply of the Hagens' fish farm near Sheridan, Montana. On the afternoon of July 21, 1989, a heavy rain washed some of this weed poison into the ditch and ultimately into the tanks at the Hagens' fish farm. Within hours of the rainstorm, more than 8000 pounds of rainbow trout had died. During the next few weeks, more of the fish turned black, lost their mucous tissue, became blind, and eventually died.
The Montana Department of Agriculture was requested to investigate this unexplained fish kill. After performing autopsies on some of the fish and analyzing soil and vegetation samples, the Department concluded that the fish had been exposed to the weed poison, and cited the Weed District for violating Montana's pesticide application law. Although the Department did not find conclusive evidence that the fish were killed due to toxicity from 2,4-D and picloram (the active ingredient of Tordon), it did not rule out the possibility that mortality was caused by sublethal levels of the weed poison acting in combination with other stresses. The autopsies performed by the Department revealed no signs of disease in the dead fish.
Harold Hagen investigated to determine whether such things as improper tank maintenance, disease, or lack of oxygen had caused the fish kill. He also conducted tests in which fish were exposed to the same mixture of weed poison that had been applied by the Weed District. He observed that the test fish exhibited similar symptoms prior to death as did the trout at the fish farm, and based on his evaluation of conditions at the fish farm, concluded that the only probable cause of this incident was exposure to lethal levels of the weed poison. He also hired an independent aquatic testing laboratory, Keeton Fisheries Consultants, to conduct further tests to evaluate the effect of the weed poison on trout. Based on its observations of lethal levels of picloram over different periods of exposure, Keeton Fisheries recommended that Tordon not be used where it could contaminate fish culture facilities.
On April 18, 1990, the Hagens filed suit in District Court to recover damages, alleging that all of their fish stock (in excess of 15,000 pounds) were either killed or rendere
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