Civil suit over crop damage set for trial in Piggott

The paperwork filed in the civil suit over the use of 2,4-D has generated thousands of sheets of paper, which are all stored on these three shelves in the Clay County Circuit Clerk's vault in the courthouse in Piggott. All the red folders contain paperwork related to the case. The original complaint is contained in the first folder, at the top left.
(Times photo/Tim Blair)

[Click to enlarge]

The civil action involves dozens of Northeast Arkansas and Southeast Missouri farmers and stems from damage sustained to the 2006 cotton crop by the "off-drift" of herbicide products containing the chemical dichlorophenoxyacetic acid, or 2, 4-D.

The complaint was filed June 2, 2009, by Gail Burns and Joe Burns of Rector against Universal Crop Protection Alliance. In the months since, dozens of plaintiffs have joined the suit and the number of defendants grew to 20. That group includes the chemical manufacturers, those companies that used it in their herbicides, along with national, regional and local distributors and applicators.

The complaint notes the action was filed by producers in both Arkansas and Missouri whose cotton crops were materially damaged by the herbicide products being sprayed on rice. It charges "Defendants' defective and misbranded 2,4-D products proximately caused significant injury and damage to the Plaintiffs cotton crops in 2006," citing the "Arkansas Deceptive Trade Practices Act and the common law theories of negligent design, negligent testing, negligent warning, breach of implied warranty of fitness for a particular purpose and implied warranty of merchantability."

The suit notes that "off-target" drift during application may cause damage to plants many miles from the site where it is sprayed. It maintains the manufacturers, distributors and applicators didn't properly label or use the chemical accordingly. It further noted the manufacturer should not have sold the product for use in times and places that are likely to cause harm to sensitive off-target crops. Also at question was the use of proper application measures and conditions.

The complaint further states the Plaintiffs seek relief in the form of compensatory damages, punitive damages, attorneys' fees and other costs of litigation.

Regardless of the outcome of the suit, Clay County taxpayers will bear some of the cost of determining blame. "We have been instructed to summon a total of 600 jurors for the pool by Judge David Laser," circuit clerk Janet Luff Kilbreath noted. "It cost the county about $5,000 each time we have to call a pool by the time we send out the notification cards and pay those that respond their $15 for jury duty," she added. "Luckily, a new state law went into effect July 1, and it makes provisions that should cover the jury duty costs over the remainder of the trial -- we've looked into it and there should be adequate funds to cover that." Kilbreath first estimated it could cost the county over $40,000 to conduct the trial.

Despite the cost to the county, the civil action has already benefited the city of Piggott financially. In the past few months lawyers for both the Plaintiffs and Defendants have rented all available offices and suitable buildings. Many of them have rented local homes for temporary lodging as well.

"There have been a couple of the parties dismissed in the past few days," Kilbreath added. "Plaintiff Lloyd Dale Smith was dismissed due to the fact that he had passed away, and Ritter Crop Services was dismissed as a Defendant."

In fact, Kilbreath's office has filed hundreds of pages of documents in relation to the case in the months since it was filed. The files occupy several shelves in the vault, and more seem to come in daily. "One day we got six full boxes at one time," Kilbreath added.

No one can estimate how long the trial will take, although one of the manufacturers submitted a witness list that was well over a page long. But the first step will come with jury selection, which is set for Monday, Tuesday and Wednesday, Aug. 30, 31 and Sept. 1, at the courthouse in Piggott.