NEWSLETTER. Feature story: How You Gonna Keep Em Down On the Farm?

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1 Volume 2, Issue 1 NEWSLETTER 2011 Edition Feature story: How You Gonna Keep Em Down On the Farm? Cotten Schmidt & Abbott and co-counsel force Plaintiffs to abandon a 9-year, $27 million lawsuit against a major chemical manufacturer on the first day of trial. P laintiffs simply gave up. This is the story of why plaintiffs quit, and how Cotten Schmidt & Abbott, L.L.P., and cocounsel, Lightfoot Franklin White, L.L.C., collaborated in a remarkable win for their client. After nine (9) years of litigation, the plaintiffs expenditure of more than $1 million in attorney s fees and expenses, and only a single day of jury selection in Tarrant County (Fort Worth) Texas, all of plaintiffs claims were dismissed with prejudice, without the client paying a single dime. CSA s litigation team was made up of Larry Cotten, Brent Brown, Keanan Hall and Dennis Conrad, from our Fort Worth office. LARRY COTTEN BRENT BROWN BACKGROUND Plaintiffs were a group of large, corporate farms and ranches who produced alfalfa on an enormous scale on irrigated land in west Texas. When their crops began to fail, they filed suit against CSA and LWF s client, Griffin, L.L.C., of Valdosta, Georgia, a wholly owned subsidiary of E. I. du Pont de Nemours and Company. Griffin manufactured an herbicide used by plaintiffs for weed control. Plaintiffs allegations against Griffin were straightforward and very serious: they claimed that the herbicide had not only failed to control weeds, but also contained some unknown contaminant that was so toxic that it resulted in the death of their crops and caused economic damage so extensive that plaintiffs were effectively put out of business. KEANAN HALL DENNIS CONRAD To complicate the defense, at a time when the routinely retained product sample involved could not be identified, the client, in the normal course of business, had discarded the only lot number samples of herbicide from the production run that the plaintiffs had received. With no contamination free sample to compare, plaintiffs were free to argue that the missing samples pointed to an intentional destruction of evidence of a dangerous, contaminated product. Plaintiffs sought punitive damages far in excess of the $27 million in actual damages claimed. What ensued was a costly and protracted discovery and pre trial battle of fact witnesses and experts. The many disputes included matters of agronomy, horticulture, soil and weather conditions, real and imagined science and extravagant economic projections. For Griffin, this was far more than an esoteric debate over cause and effect: (cont. on page 2)

2 (cont. from page 1) the product at issue was manufactured on a clean and dedicated production line without a single past instance of contamination. Moreover, several other farms had used the same production run of that herbicide on other crops without incident or complaint. Of course, paying to settle spurious claims in high profile litigation often risks inviting more such claims. Confident that the allegations simply could not be true, yet lacking the clear evidence to put these claims to rest, Griffin had a decision to make: give in to the demands or fight. Griffin chose to fight. THE LOCAL COLOR Plaintiffs farms are located in Reeves County Texas, home of Judge Roy Bean, Billie Sol Estes, and the Chihuahuan Desert, near the Davis Mountains. It was here that Billie Sol launched his career in land swaps, the sale of interests in nonexistent anhydrous ammonia tanks, and other such schemes of interest to federal prosecutors. In fact, Billie Sol himself once owned at least part of one of the properties Plaintiffs farmed. The land in Reeves County is generally arid and poor, and the years in REEVES COUNTY, TEXAS question involved a decade of drought. The water that plaintiffs used for irrigation was heavily saline and enormously expensive to extract. While plaintiffs told a dramatic story of crop death and devastation resulting from an allegedly contaminated herbicide, they had inexplicably taken no contemporaneous photographs of their ruined crops, nor kept any samples of the allegedly devastating consequences of defendant s alleged conduct. THE INFAMOUS BILLIE SOL ESTES In short, this was a case destined to turn largely on personal credibility. Were the plaintiffs innocent victims, or opportunists who were not to be believed? STRATEGY AND TACTICS: MATTERS OF ART AND AS SCIENCE Throughout this case, the CSA and LFW law firms collaborated in joint representation of the client. Together, the firms brought enormous experience and resourcefulness to a complex set of claims and contentions. That collaboration was a key to executing the variety of strategies which ultimately proved successful and demonstrated the power and effectiveness that can result when firms work well together. Of course, commercial litigation generally involves waves of document requests, interrogatories, depositions and expert analysis, which in turn generally lead to yet more document productions and depositions. This is the familiar process of formal discovery, and it is often the primary, or even the exclusive path that many law firms follow. As important as such discovery is in every case, the conventional approach seemed lacking here. For one thing, the plaintiffs witnesses told a story that seemed unlikely, yet their discovery responses tended merely to recycle the same talking points. And, there were a great number of other questions: If alfalfa growers can make millions cultivating far west Texas rangeland, why aren t more people doing it? Why was there no hard evidence of contamination or even photos of dead and dying crops? And if the crop damage really put the corporate farms out of business, exactly how were they able to spend $1 million in funding their lawyers, who were being paid on an hourly basis? It seemed apparent that CSA and LFW needed to look elsewhere for real answers. To get behind the claims, CSA and LFW decided on the litigation equivalent of a full court press a strategy combining lots of shoe leather investigation by lawyers and legal assistants working parallel to the judicial process, the best available expert scientific and economic analysis, and all work supported by the careful use of the discovery process and aggressive motion practice. The key point: with credibility a key to winning, plaintiffs would be held fully accountable for each of their in court and out of court assertions. (cont. on page 3) 2

3 (cont. from page 2) Our strategy produced the following results: The aggressive use of conventional discovery uncovered a variety of farm production, financial and bank records that contradicted assumptions underlying plaintiffs $27 million damage model; Expert scientific analysis debunked much of plaintiffs contamination and crop damage theories as mere speculations. The science included sophisticated analysis of NASA satellite images of plaintiffs crops to confirm historical cultivation practices, failures and actual crop conditions. Ultimately, no legitimate scientist could posit a contaminant known to science that would have behaved as plaintiffs contended; Taking the lead on many expert issues, LFW identified and retained a key economic expert who created modeling which dramatically undercut plaintiffs damage study. By identifying fanciful assumptions and errors used by the plaintiffs and their experts, and substituting the real numbers gained from the analysis of the prior years true experience, the team demonstrated that plaintiffs operations actually were never profitable and failed of their own accord; Aggressive use of old fashioned shoe leather by CSA lawyers and legal assistants uncovered a treasure trove of hidden documents from prior lawsuits and claims traceable to these lands and to the partners and key shareholders of these litigants. The materials were found in state and federal document repositories and in the hands of third parties. Many revealed a pattern of asserting similar claims and taking entirely inconsistent positions as to their causes to various federal and state agencies, as well as private companies. Federal Small Business Administration applications and Farm Service Agency records of claims for disaster relief money and loans revealed many successful applications based upon claims of drought, wind damage, and other natural disasters during the time period at issue, but they never acknowledged any harm from our client s product; Utility records revealed that the electric service necessary to irrigate the crops was terminated for non payment at the same time that the plaintiffs were spending hundreds of thousands of dollars in pursuing the lawsuit; Motion practice: CSA presented and won a key pretrial motion to compel the production of wrongly withheld documents, and then won two separate motions for sanctions and discovery abuse for plaintiffs failure to comply with the Court s Orders. This led to plaintiffs production of more than 30,000 pages of additional documents less than two weeks before trial. Some of these withheld materials contained critical new evidence which had been concealed for years. Moreover, due to the Court s finding of serious discovery abuse, Griffin was granted the opportunity to amend its witness and exhibit lists throughout trial. The Court deferred the final imposition of monetary and other sanctions until the end of trial. THE END GAME As jury selection began, plaintiffs were served with a new trial subpoena for documents that had been in possession of a related limited partnership entity, which plaintiffs had kept out of the discovery process, and which this time required production of key financial records relating to their damage claims. Based on the Court s instruction, those records would now have to be revealed on the first full day of trial. Instead, that evening, Larry Cotten received a memorable telephone call from plaintiffs legal team. Plaintiffs would simply dismiss all claims, with prejudice, if CSA s client would be willing to release its pending sanctions motions. After a call to a very surprised and pleased client, the agreed dismissal was done. Which of these pressure points, or what combination, caused the surrender? What would cause the plaintiffs to abandon their lawsuit without a request for settlement dollars before the first witness was called? Whatever the reason, our attorneys efforts produced exceptional results for our client. COTTEN SCHMIDT & ABBOTT provides innovative and exceptional legal service to the individuals, businesses and institutions we represent, in any jurisdiction. In any legal situation, Cotten Schmidt & Abbott puts your interests and business first. We make what works for our clients work for us. 3

4 Larry Abbott and Charles Abbott Named to Louisiana Super Lawyers 2011 Cotten Schmidt & Abbott proudly announces that New Orleans attorneys, Larry Abbott and Charles Abbott, have been selected to Louisiana Super Lawyers They are featured in the current issue of Super Lawyers magazine, which lists and profiles the selected attorneys. Super Lawyers is a rating service of outstanding lawyers from more than seventy (70) practice areas who have attained a high degree of peer recognition and professional achievement. Accolades and Accomplishments The rigorous selection process is multi phased and includes independent research, peer nominations and peer evaluations. Only five percent (5%) of the lawyers in Louisiana are named each year as Louisiana Super Lawyers. Municipality and Its Employees Dismissed from Zoning Case Larry Abbott, Byron Kitchens and Nancy Brechtel represented a defendant municipality and certain of its employees in a zoning action, where plaintiffs claimed that they suffered damages arising from their reliance on advice from city officials on a zoning and permitting matter. Plaintiffs filed their lawsuit in the U.S. District Court for the Eastern District of Louisiana and raised federal constitutional claims, as well as claims under Louisiana state law. While the case was in federal court, the Firm s attorneys moved for dismissal on an initial motion prior to answer. The federal district court granted the motion, dismissing the federal constitutional claims, with prejudice, and the supplemental state law claims without prejudice. BYRON KITCHENS NANCY BRECHTEL The plaintiffs then pursued their remaining claims in Louisiana state court, in the Twenty second Judicial District Court of St. Tammany Parish. Again, as in the federal court, we met the suit with initial exceptions, and requested the dismissal of the municipality due, in part, to plaintiffs failure to adhere to the required administrative process. Although the trial court denied the exceptions, the Louisiana First Circuit Court of Appeal reversed the trial court, thereby dismissing the municipality. The Firm additionally attacked a procedural error made by plaintiffs counsel with respect to the municipality s employees. This resulted in their dismissal of all of the municipal employees from the lawsuit, and the end of the plaintiffs claims against them. 4

5 CSA Champions Substantial Settlement, Attorneys Fees for Bull Rider Subjected to Unauthorized Endorsements Randall Schmidt and Stephen Cheak, of our Fort Worth office, successfully represented Gilbert Carrillo, a member of the Texas Cowboy Hall of Fame and former two time Professional Rodeo Cowboys Association World Champion Bull Rider, in Mr. Carrillo s lawsuit against a national rodeo arena product manufacturer for its wrongful use of Mr. Carrillo s name and likeness to promote its products. The case was complicated by the underlying facts. Mr. Carrillo originally entered into an endorsement contract with another manufacturer who made similar rodeo arena products as the defendant. The endorsement contract had ended two (2) years before, and the original manufacturer was in bankruptcy. RANDALL SCHMIDT STEPHEN CHEAK The defendant manufacturer did not have an endorsement contract with Mr. Carrillo. It sold its products under a different name than the original manufacturer with whom Mr. Carrillo once had an endorsement contact. And, the defendant company did not actually use Mr. Carrillo s name or likeness as an endorser on its own website or in any of its own advertisements. However, the defendant manufacturer sold its products through a Texas distributor who had formerly carried the original manufacturers products and who continued to include Mr. Carrillo as an endorser on its website. The distributor s website contained web links to the defendant manufacturer s website. As a result of these links, the defendant manufacturer s customers associated Mr. Carrillo with its products and the defendant company was GILBERT CARILLO benefitting from the unauthorized endorsements. Since the defendant did not use Mr. Carrillo s endorsements in any of its own advertisements, the primary evidence that his name was tied to its sales was testimony from the Texas distributor s customers. Through Mr. Schmidt and Mr. Cheak s diligent efforts, Cotten Schmidt & Abbott was able to overcome the significant evidentiary and legal obstacles presented by this case. They secured a substantial settlement for the client, along with payment of his attorney fees and removal of the unauthorized endorsements from the internet. New Orleans Construction Firm Dismissed with Prejudice upon Plaintiff s Own Motion After Discovery Requests Expose Complete Lack of Evidence Byron Kitchens represented the interests of a New Orleans regional construction firm who became a target of a suit alleging a roadway defect. The plaintiff, a medical student, alleged that he was riding his bicycle at night on a New Orleans roadway when he hit a mass of concrete on the ground, and fell. The plaintiff complained of significant injury to his wrists, intimating a potentially significant future economic loss. In our early assessment of the litigation, it became apparent that the plaintiff had insurmountable evidentiary issues. Plaintiff's counsel had made certain assumptions of our client's involvement based on the presence of the client s construction equipment near the accident site. But, he lacked adequate evidentiary support. Mr. Kitchens propounded a single set of Interrogatories, Requests for Production and Requests for Admission. As expected, plaintiff could not provide sufficient responses or evidence. Faced with a complete lack of evidence to support his claims, plaintiff dismissed his actions against the Firm s client on his own motion, with prejudice. 5

6 Dismissal Secured After Discovery of Untimely Lawsuit Ryan Wallis secured a dismissal of all claims against a client chemical manufacturer in a case in Louisiana state court case after discovery revealed that the plaintiff s lawsuit was filed too late. The plaintiff was diagnosed with acute myelogenous leukemia ( AML ), a cancer that starts inside the bone marrow. He had been a longtime maintenance worker and painter at a box manufacturing facility. The plaintiff filed suit against our client and several other defendants, claiming that his AML was caused by exposure to benzene found in solvents and other chemicals that he used in his work. Plaintiff s pleadings stated that he timely filed suit after learning of his condition. But, the evidence obtained in the course of the litigation showed otherwise. During the plaintiff s deposition, Mr. Wallis and other defense counsel elicited testimony that revealed that the RYAN WALLIS plaintiff was aware that he might have a legal claim long before he actually filed suit, such that it was untimely. Mr. Wallis then collaborated with other defense counsel to prepare the appropriate pleadings. Faced with a winning argument that the plaintiff s claims were prescribed, his attorneys capitulated and voluntarily dismissed the plaintiff s claims. New Orleans and Fort Worth Offices Collaborate to Win Summary Judgment on Behalf of Client Chemical Manufacturer by Applying Texas Law in Louisiana Case. Interoffice teamwork by Ryan Wallis and Amy Maccherone, of the New Orleans office, and Steven Gordon and Dennis Conrad, of the Fort Worth office, produced winning results for a client chemical manufacturer, through the unusual application of Texas law to a case filed in Louisiana state court. AMY MACCHERONE STEVEN GORDON The plaintiff was a Texas resident and the surviving son of a worker who contracted and died from mesothelioma, a rare form of cancer that can develop in the outer lining of the lungs. During his life, the worker, also a Texas resident, had been employed as an industrial welder and boilermaker. The plaintiff claimed that his late father s disease was caused by exposure to asbestos while working for contracting companies at several different industrial facilities. Although a handful of these worksites were located in Louisiana, the vast majority of them were situated in Texas. Due to the plaintiff s and his late father s Texas citizenship and the location of most of the worksites at issue, Texas would have been the most logical jurisdiction for the plaintiff to file suit. But, instead, in an attempt to sidestep a number of Texas tort reform laws, the plaintiff filed his lawsuit in Louisiana. Mr. Wallis and Ms. Maccherone worked together on a motion to apply Texas law to the case, which was set for hearing in the trial court. Mr. Wallis presented the oral argument at the hearing, after which the court agreed with our position and granted the motion. Then, Mr. Gordon and Mr. Conrad collaborated with Mr. Wallis and Ms. Maccherone to prepare a Motion for Summary Judgment that applied Texas substantive law within the framework of Louisiana legal procedure. The team used complex Texas jurisprudence on a particular statutory defense to demonstrate that the client was not liable because there was no evidence that it exercised control over the deceased worker s work. The Court granted the Motion for Summary Judgment, finding in favor of the client and putting an end to the plaintiff s claims against it. Cases such as this, where a lawsuit is filed in one state based on events that took place in another state, are arising with increased frequency. This particular suit illustrates how our Firm, with offices and lawyers in Texas and Louisiana, coordinates efficiently to build an effective and innovative defense that crosses state lines. 6

7 CSA Obtains Quick Dismissal in Alleged Land Contamination Case Larry Abbott, Byron Kitchens and Amy Maccherone successfully represented E. I. du Pont de Nemours and Company ( DuPont ) before the 2 nd Judicial District Court of Claiborne Parish, Louisiana, in Tigner Farms Inc. v. The Mosaic Company of Delaware. The case involved a farming corporation in northern Louisiana who sued an assorted group of companies for damages allegedly sustained by contamination of land, including subsurface, by virtue of claimed wrongful operation of various oil and gas wells over a fifty three year time span. Quickly identifying a lack of any relationship between DuPont and the claimed predecessor identified in the Petition, the Firm obtained a dismissal of DuPont from the case and DuPont was extracted from litigation before the expense of responsive pleadings or discovery. LARRY ABBOTT Chemical Contamination and Trespass Claims of $1.8 Billion Against Major Corporation Dismissed With Prejudice Byron Kitchens recently procured a voluntary dismissal, with prejudice, in an alleged environmental contamination case before the U.S. District Court for the Eastern District of Arkansas. The plaintiff sought $1.8 billion in damages from the Firm s client and other defendants, claiming that the land and an aquifer had become contaminated and seeking remediation of its property. The plaintiff, a farming corporation, owned land that adjoined a former chemical plant. Plaintiff claimed, in particular, that the defendants engaged in the manufacture of various chemical compounds containing ethylene dichloride ( EDC ) at the former chemical plant site; constructed three waste ponds on site which were used as disposal sites for the washout water and for the disposal of off spec product; and disposed of and buried drums containing hazardous substances in various pits dug throughout the site. The plaintiff further alleged that these drums, which it believed to contain dinoseb (an herbicide) and nitrated benzoate ester, corroded and seeped chemicals into the soil and groundwater. Plaintiff also asserted that test wells were placed on the plant site and on the plaintiff s property in order to test for water and soil contamination. According to plaintiff, EDC seeped into the alluvial aquifer and resulted in soil and water contamination of its property. The claims were based in negligence, private nuisance, property damage, trespass, and strict liability. Plaintiff also sought punitive damages. The parties engaged in months of persistent battling. Plaintiff attempted to add claims under CERCLA (the federal Comprehensive Environmental Response, Compensation and Liability Act, also known as Superfund) and RCRA (the federal Resource Conservation and Recovery Act), and took the relatively unusual step, for plaintiffs, of filing Motions for Summary Judgment. Mr. Kitchens filed his own Motion for Summary Judgment on behalf of our client based on the absence of the client s liability, and propounded Requests for Admissions to force the plaintiff to admit that it had no specific evidence against our client. With these filings, plaintiff further faced the potential of cost shifting, to its disadvantage. Mr. Kitchens was able to convince opposing counsel that the Firm s client did not have any connection to the allegedly detected chemicals during the relevant time frames. Plaintiff entered its own Stipulation of Dismissal of the client and, thereafter, filed a Motion to Dismiss with Prejudice, eliminating any further participation by the client in the matter. The result was obtained without a single deposition of our client. Ryan Wallis Receives New Orleans Pro Bono Project Distinguished Service Award Ryan Wallis has been honored with a 2010 Distinguished Service Award from the New Orleans Pro Bono Project. This award is given annually to select attorneys in the New Orleans area for outstanding pro bono service provided to indigent clients of the New Orleans Pro Bono Project. Ryan was recognized in particular for his extensive and exceptional trial preparation work with his clients and their interpreter in a wage claim in Louisiana state court. The award was presented by Judge Ginger Berrigan of the U.S. District Court for the Eastern District of Louisiana, at the Pro Bono Project s annual Volunteer Appreciation and Recognition Awards Ceremony, which was held on December 9, NEW ORLEANS PRO BONO PROJECT 2010 VOLUNTEER APPRECIATION AWARD HONOREES. RYAN WALLIS, SECOND ROW, CENTER.

8 Admiralty/Maritime: Attorneys Defeat Motion Seeking Multi Millions in Security The team of Charles Abbott, as lead counsel, and Larry Abbott, Byron Kitchens, and Ryan Wallis, defeated an opposing party s Motion for Security of over $6 million after multiple hearings, discovery, and lengthy motion practice related to the seizure of an oceangoing vessel and its cargo in port in New Orleans. The vessel and its cargo of frozen chicken were seized in July of Emergency proceedings then took place over the course of five (5) days spanning the July 4, 2009, holiday weekend. Some of the vessel s cargo of frozen chicken would not be accepted by the importing country if the vessel had been delayed for one additional day. Mr. Abbott appeared before the U.S. District Court for the Eastern District of Louisiana and, as a result of the briefing and oral argument, the Court vacated the seizure. Opposing counsel then appealed the decision to the U.S. Fifth Circuit Court of Appeals and requested that the Court grant an Emergency Stay of the district court's ruling. The following morning, the Firm filed an CHARLES ABBOTT opposition brief in the Fifth Circuit, opposing the Emergency Motion to Stay. The appellate court ruled in favor of the Firm's client. It denied the plaintiff's request for injunctive relief and the Motion to Stay, which released the vessel from further attachment. The vessel was free to proceed with international trade, with its perishable cargo preserved. Following the appellate court s ruling, opposing counsel filed a Motion for Reconsideration with the district court. The Firm responded by opposing the Motion for Reconsideration and filing several dispositive motions. As a result of the voluminous briefing and oral argument by Mr. Abbott, the district court denied opposing counsel's Motion for Reconsideration. It did, however, permit the plaintiff time to conduct discovery. Lengthy discovery ensued. At its conclusion, opposing counsel filed a Motion for Security, asking the district court to require our client to post over $6 million as substitute security for the previously attached and released cargo for proceedings concurrently pending in London arbitration. In response, we filed several opposition briefs, motions for summary judgment, and motions to dismiss. Following another oral argument by Mr. Abbott, the U.S. District Court for the Eastern District of Louisiana denied Plaintiff's Motion for Security, saving our client from having to expend millions of dollars. New Orleans Building Construction Firm Dismissed with Prejudice in Alleged Building Defect Case Upon Motion for Summary Judgment Before Any Significant Discovery Byron Kitchens and Nancy Brechtel, of our New Orleans office, defended the interests of a regional construction firm accused of an alleged building defect. In this case, the plaintiff sued the client construction firm for negligence based on its alleged failure to place a handrail on a residential unit. The plaintiff claimed significant personal injury after she fell while she was exiting the unit. Asserting immunities afforded under Louisiana law, and arguing the client s lack of duty, breach and causation with regard to the plaintiff and her injuries, Mr. Kitchens and Ms. Brechtel sought summary judgment on behalf of the Firm s client. Their efforts resulted in a dismissal of the case, bringing finality to the client prior to trial. Moreover, their diligence saved the client from what would have otherwise led to significant expense in defending against the plaintiff s claims. The results were obtained without the Firm or client having to participate in a single deposition, demonstrating the Firm s commitment to minimizing the litigation costs otherwise borne by its clients. 8