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Wednesday, May 22, 2024 | Back issues
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Contractor to Face Chemical-Spray Claims

WASHINGTON (CN) - A federal judge on Wednesday ruled in favor of 19 Ecuadoreans who claim that a U.S. company sprayed a toxic herbicide on them as part of a campaign to combat Colombian drug cartels.

The 19 Ecuadorean "test" plaintiffs in the case say that DynCorp, which contracted with the U.S. State Department to carry out "Plan Colombia," sprayed them with glyphosate as part of an effort to eradicate cocaine and heroin poppy drug farms in Colombia.

U.S. District Judge Ellen Segal Huvelle said the record shows that DynCorp engaged in "a consistent pattern of reckless behavior."

"Defendants were repeatedly informed that their pilots were spraying chemicals on communities in Ecuador - at the latest, by September 2001- yet continued to carry out spray operations in a manner that deeply troubled Ecuadorian population centers, the United States government, and employees within DynCorp itself," the 26-page ruling states.

Huvelle also found DynCorp's actions outrageous.

"The fact that plaintiffs include impoverished farmers who rely on their land to survive and defenseless children make defendants' recklessness all the more outrageous," the judge wrote.

Huvelle said the spraying could amount to battery, which does not require "purposeful intent," but only "knowledge that harmful or offensive contact to somebody will occur with substantially certain probability."

"In short, there is ample evidence to suggest that DynCorp and its pilots simply ignored (and sometimes mocked) the fact that plaintiffs from specific areas of Ecuador were complaining about the company's sloppy spraying flights. They were repeatedly informed of systemic problems with the Plan Colombia missions and dangerous incidents, yet consciously chose to not meaningfully address them, despite the clear and obvious risks to people and property on the ground," the ruling states.

Some of the glyphosate drifted across the border from Colombia, but lead plaintiffs Venancio Aguasanta Arias and Nestor Ermogenes Arroyo Quinteros say planes also crossed the border into Ecuador and sprayed them directly.

"DynCorp themselves have admitted to seven specific missions that released spray in Ecuador between 2001 and 2004, despite the fact that DynCorp had no contractual authorization or permission from the U.S. government to spray in Ecuador," Huvelle wrote.

DynCorp insisted wind patterns were to blame for drift of the toxin, but Huvelle disagreed.

"There are two problems with this argument. First, DynCorp employees and pilots appear to have consciously and routinely ignored the operational parameters set specifically so that spray would not drift outside spray zones [redacted]. In sum, the court finds sufficient evidence to support the contention that DynCorp understood the troubling consequences of its spray operations in Ecuador," the judge said.

The consolidated class action has been winding its way through the courts since 2001.

At its peak, it had more than 3,000 plaintiffs, but in 2013, a federal judge ruled in favor of DynCorp. An appeals court partially affirmed the ruling, but remanded the case back to the lower court on battery, nuisance and emotional distress claims.

Because of the massive nature of the case, the court decided to litigate the claims of 20 test plaintiffs, one of which has since died, to later facilitate a resolution for the roughly 2,000 remaining plaintiffs.

DynCorp, however, argued that the non-test plaintiffs should be bound by the court's ruling on the test claims, an argument Huvelle rejected.

"Even if such an extraordinary arrangement did not already strike the court as implausible and unfair, if not unconstitutional, the court also cannot find any evidence of its existence in the record," the ruling states.

Huvelle also rejected DynCorp's argument that the claims should be time-barred, but dismissed battery claims for 11 of the test plaintiffs because only nine of them testified that glyphosate had touched their bodies.

Huvelle allowed five test claims of severe emotional distress to survive, but tossed out all of the nuisance claims, agreeing with DynCorp that "the alleged sprayings were too sporadic and isolated in time to constitute a nuisance, which generally must be continuous and permanent in character."

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