The recent Nebraska Supreme Court’s decision in Lesiak v. Central Valley Ag Cooperative (CVA) provides an evidence standard for pesticide damage claims against applicators. In Lesiak, the Nebraska Supreme Court discussed burdens of proof, implied services warranties, the economic loss doctrine, blah, blah, blah, blah……..zzzzzzzzzzzzzzzzzzz.
You are asleep aren’t you? I get it. However, those involved in crop damage cases (especially lawyers) need to know what kind of evidence is necessary to get the claim past the judge and to the jury. Lesiak v. CVA provides that standard, but for the sake of brevity let’s go to the cliff notes.
The Lesiaks owned farm ground in Merrick and Nance Counties and had contracted with Central Valley Ag Cooperative for ag consulting and pesticide application for the 2005 growing season. CVA sprayed the Lesiaks’ corn crop with Guardsman Max to control weeds at an average rate of 4 pints per acre. (Guardsman Max Application Instructions) In June, 2005 the Lesiaks noticed the corn crop was stunted which they claimed was caused by chemical damage; specifically over-application of Guardsman Max. After harvesting the crop the Lesiaks turned in their lower-than-expected yield results to CVA looking for reimbursement. CVA denied the yield was damaged by Gaurdsman Max and the Lesiaks filed a lawsuit.
The trial court judge dismissed the Lesiaks’ claim because they did not provide the jury with sufficient proof that the corn crop was damaged by Guardsman Max rather than some other variable; such as lack of irrigation.
Overruling the trial court, the Nebraska Supreme Court ruled that the producer does not have to prove damages with mathematical certainty. Rather, the producer has to provide enough evidence that a judge or jury can reasonably estimate the damages caused by the application of pesticides.
The ruling essentially eliminates the judge automatically kicking a pesticide damage claim if the producer provides some evidence that the pesticide caused some damage. With that said, a jury can still find against the producer if the evidence is weak. Therefore, it is essential that a producer carefully document any suspicion of crop damage and maintain comprehensive records of yields, applications, and consulting reports. On the flip side, the applicator needs to compile and maintain similar records and documents to potentially disprove a pesticide damage claim.
With few exceptions, the side with the best evidence wins. Okay, now if you need to get back to sleep, read the full opinion: Lesiak v. Central Valley Ag Cooperative.