United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 14, 2014 Decided May 30, 2014

No. 13-7044

VENANCIO AGUASANTA ARIAS, HUSBAND, ON BEHALF OF

HIMSELF, AS GUARDIAN OF HIS FOUR MINOR CHILDREN, AND

ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, ET AL.,

APPELLANTS

v.

DYNCORP, ET AL.,

APPELLEES

Consolidated with 13-7045

Appeals from the United States District Court

for the District of Columbia

(No. 1:01-cv-01908)

(No. 1:07-cv-01042)

Christian Levesque argued the cause for appellants. With

her on the briefs were Terrence Collingsworth and Eric Hager.

Eric G. Lasker argued the cause for appellees. With him on

the brief were Joe G. Hollingsworth and Rosemary Stewart.

Before: TATEL, Circuit Judge, and SILBERMAN and

SENTELLE, Senior Circuit Judges.
2

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

SILBERMAN, Senior Circuit Judge: Appellants, a group of

Ecuadorian provinces and individual farmers, alleged that they

were injured by an anti-drug herbicide spraying operation in

Colombia, conducted by an American company. In a series of

rulings, the district judge dismissed all claims. Some of those

are appealed. We affirm all but one. 

I.

Since the late 1990s, the United States and Colombia have

cooperated in a program known as “Plan Colombia,” which

encompasses a range of policies designed to combat Colombian

drug cartels. That includes aerial herbicide spraying targeting

illegal coca crops. Defendant DynCorp, an American contractor,

conducted these spraying operations using an herbicide called

glyphosate.

On September 11, 2001, plaintiffs filed a putative class

action on behalf of all Ecuadorians who lived within ten miles

of the Colombian border. They alleged that herbicide had drifted

across the border from Colombia and that the planes themselves

had actually crossed the border and sprayed in Ecuador. The

plaintiffs invoked the district court’s diversity jurisdiction and

asserted a wide variety of tort claims for alleged injuries to

health, property, and financial interests, relying on both

Ecuadorian and District of Columbia law. All parties apparently

agree now, however, that D.C. substantive law governs. For

reasons that are not entirely clear to us, the case proceeded at a

glacial pace.
3

In 2006 and 2007, additional cases were filed in the

Southern District of Florida, on behalf of other individual

plaintiffs, as well as three Ecuadorian provinces. Those cases

were transferred to our district court, where they were

consolidated with the original suit. The initial plaintiffs dropped

their class action demand at this time, and discovery then

proceeded. 

In 2007, the district court attempted to move the

proceedings along by employing a requirement that plaintiffs

submit answers to questionnaires concerning their alleged

injuries – a common trial management technique in toxic torts

cases with multiple plaintiffs. Such an order is sometimes called

a Lone Pine order, in reference to Lore v. Lone Pine Corp., No.

L-33606-85, 1986 WL 637507 (N.J. Superior Ct. Nov. 18,

1986). It generally requires plaintiffs in a toxic torts case to

produce affidavits setting forth some basic information

regarding their alleged exposure and injury. “In the federal

courts, such orders are issued under the wide discretion afforded

district judges over the management of discovery under Fed. R.

Civ. P. 16.” Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th

Cir. 2000). Even after an extension of the response deadline,

numerous plaintiffs submitted incomplete responses. The court

warned the plaintiffs that a failure to fully complete the forms by

November 19, 2008, would lead to a dismissal with prejudice.

The judge apparently relented, however, extending the deadline

again to January 21, 2009. Then, a year later, in January of

2010, the court finally dismissed (with prejudice) those plaintiffs

who had failed to submit complete responses to the

questionnaires.

The court proceeded to hold that the Ecuadorian provinces

had failed to demonstrate Article III standing. The provinces

claimed that their budgets had been harmed by reduced tax
4

revenue and by necessary expenditures to address a public

health crisis supposedly caused by the Plan Colombia spraying.

But the court concluded that the provinces had either failed to

demonstrate an injury cognizable for purposes of standing, or

failed to demonstrate that DynCorp was the cause of the alleged

injuries.

As for the remaining individual plaintiffs, the parties agreed

that the court should focus on a limited number of “test

plaintiffs,” but disagreed as to how they would be chosen. 

Appellee argued they should be chosen half by the plaintiffs and

half by defendant, but the court ultimately sided with plaintiffs

who were to choose all the test plaintiffs. In their brief arguing

for their position, the plaintiffs included a footnote (which is

now hotly disputed) asserting that if the defendant’s proposed

test plaintiff selection method were accepted by the court, “no

binding effect could be given to the outcome of the remaining

claims,” thereby, at least, implying that if the court accepted the

plaintiffs’ position, the result would bind all plaintiffs.

The court ultimately dismissed all of the remaining claims

applicable to individual plaintiffs – both test and non-test

plaintiffs – because they failed to provide expert testimony

regarding the effects of glyphosate. 

II.

The plaintiffs advance a number of arguments. The

Ecuadorian provinces insist that they do have Article III

standing. The non-test plaintiffs argue that the court improperly

extended its summary judgment beyond the test plaintiffs. Those

plaintiffs who were dismissed for failing to submit complete

responses to the questionnaires argue that dismissal was too

harsh of a sanction, and all of the individual plaintiffs contend
5

that expert testimony was unnecessary to show that glyphosate

had damaged the plaintiffs’ crops, or to prove the torts of

trespass, battery, nuisance, intentional infliction of emotional

distress, or negligent infliction of emotional distress.

A.

We first consider the Ecuadorian provinces’ Article III

standing. They claim that the aerial spraying has caused health

problems and driven large numbers of people away from the

affected areas, which in turn forced the provinces to invest in

additional schools, health centers, and other infrastructure along

the border. The spraying allegedly has also cost them tax

revenue – which can be estimated by comparing their annual

budget deficits with their generally balanced budgets before the

aerial spraying began. Indeed, it is asserted that the provinces’

entire budget deficits are attributable to DynCorp’s actions.

The district court correctly concluded, however, that the

provinces had either failed to allege an injury-in-fact, or failed

to present facts sufficient to demonstrate that these financial

injuries were fairly traceable to DynCorp’s spraying. See Sierra

Club v. E.P.A., 292 F.3d 895, 898 (D.C. Cir. 2002). Lost tax

revenue is generally not cognizable as an injury-in-fact for

purposes of standing. Pennsylvania v. Kleppe, 533 F.2d 668,

672 (D.C. Cir. 1976). And the provinces’ own expert noted that

there are a number of economic and environmental factors that

were responsible for the provinces’ budget deficits, including

labor disputes, difficulty collecting taxes, and even a volcanic

eruption. Although the provinces generally allege that land and

crops were damaged, they never claim to actually own the land

or crops at issue.
6

To be sure, the provinces’ direct expenditures on facilities

like health centers could theoretically constitute an injury-in-fact

for standing purposes, but the provinces failed to show that these

injuries were “fairly traceable” to the defendants’ actions. For

example, the provinces contended that health centers were

needed to address a high infant mortality rate and a number of

prevalent diseases, but they do not even claim that these medical

issues are a result of the spraying. Other testimony referred to

explosions, grenades, and mortars across the border in

Colombia, which are not even asserted to be DynCorp’s

responsibility. A defendant in a tort suit can, of course, be liable

without being the sole cause of a plaintiff’s injury, but the

provinces have failed to demonstrate that DynCorp was any kind

of cause of their alleged financial injuries. So we agree with the

district court that the provinces lack standing.

B.

Turning to the individual plaintiffs, we easily reject the

challenge brought by the 163 plaintiffs who were dismissed for

failure to provide complete responses to the court-ordered

questionnaires. As we noted, the court had ordered these

plaintiffs to submit written statements detailing what specific

damages they suffered and where they were located when they

were allegedly exposed to the herbicide. After plaintiffs’

repeated failures to adequately complete the responses – and

three deadline extensions – the district court ultimately

exercised its Rule 37(b) prerogative to sanction the plaintiffs by

dismissing the case.

These plaintiffs argue that dismissal was too harsh of a

sanction – that the judge abused his discretion. According to

them, the district court failed to consider, as it was required to

do under our precedent, whether “less dire alternatives” would
7

be adequate. See Bonds v. D.C., 93 F.3d 801, 808 (D.C. Cir.

1996). Yet the court gave the plaintiffs every opportunity to

complete their responses. Indeed, the court appears to have been,

if anything, too patient, applying no sanctions at all for the

plaintiffs’ earlier failures. Only when further extensions were

obviously futile did the court dismiss these cases. It would, thus,

be impossible to conclude that the judge abused his discretion. 

C. 

The district court dismissed all individual plaintiffs’ claims

for crop damages because they failed to provide expert

testimony demonstrating “general causation.” In a toxic torts

case, proof of general causation is proof that the substance in

question is capable of causing the particular injuries complained

of.1

The plaintiffs argue that the district court erred in requiring

such an expert. They claim – correctly – that there is no dispute

as to whether glyphosate-based herbicides kill plants. But they

attack a straw man. The district court required expert testimony

not to prove that herbicides kill plants, but to determine whether

the specific herbicide at issue was capable of causing the

1

Proof of specific causation is still required to show that the

substance in question did, in fact, cause the injuries. Young v. Burton,

567 F. Supp. 2d 121, 138 (D.D.C. 2008) aff'd, 354 F. App'x 432 (D.C.

Cir. 2009). The distinction is important, because if the plaintiffs

cannot show general causation, that is a reason to dismiss all of the

crop damage claims, whereas proof of specific causation might be

expected to vary from case to case.
8

specific kinds of injuries complained of. For example, plaintiffs

claimed that the aerial spraying caused black spots to appear on

their crops, but the defendant presented unrebutted expert

testimony that glyphosate does not cause spotting. Because

District of Columbia law requires expert testimony where the

parties offer competing causal explanations for an injury that

turn on scientific information, the district judge appropriately

dismissed these claims. See Baltimore v. B.F. Goodrich Co., 545

A.2d 1228, 1231 (D.C. 1988). A general causation expert would

also, presumably, have been able to testify as to: the

concentration of herbicide necessary to produce varying effects,

the susceptibility of various types of plants, and the potential for

the herbicide to drift outside of the immediate vicinity of a

spraying operation. These are all issues that are not within the

ken of the average lay juror.

D.

More troubling is the plaintiffs’ claim that the district judge

improperly granted summary judgment against the non-test

plaintiffs, along with the test plaintiffs, because the former never

agreed to be bound by the latter’s prospects. DynCorp contends

that the fatal footnote constitutes consent – at least by

implication – and that plaintiffs are therefore estopped.

Although we doubt the footnote is sufficient to constitute formal

consent, it certainly could have given that impression to the

district judge. 

Indeed, the plaintiffs never brought to the judge’s attention

their claim that they now assert on appeal, and, of course, we

will not ordinarily consider an issue not presented below. Even

if the plaintiffs were “surprised” – which may be doubtful – by

the scope of the judge’s order, that does not excuse their failure

to bring the issue to the judge’s attention through a Rule 59(e)
9

motion (to alter or amend the entry of judgment). We have

squarely held that a party must preserve an issue for appeal even

if the only opportunity was a post-judgment motion. See Jones

v. Horne, 634 F.3d 588, 603 (D.C. Cir. 2011). And the

misleading footnote makes the plaintiffs’ failure to bring such

a motion particularly egregious.

E.

The individual plaintiffs do present one winning argument.

They assert that the district court was wrong to dismiss claims

that do not require expert testimony, namely, claims for trespass,

battery, nuisance, and emotional distress; which do not need

proof of actual damage from glyphosate. The defendant

contends that the plaintiffs have waived these arguments by

failing to present them first to the district court. But, as the

defendant concedes, the plaintiffs did raise at least most of these

arguments; they merely did so in a separate summary judgment

motion. Although arguments must be presented in the same

proceeding in order to preserve the issue for appeal, United

States v. British Am. Tobacco (Investments) Ltd., 387 F.3d 884,

887-88 (D.C. Cir. 2004), they need not be presented in a single

filing. 

Not so, regarding simple trespass on plaintiffs’ property;

that argument was not presented at all before the district court.

The plaintiffs argue in their appellate briefs that the tort of

trespass does not require proof of actual damage. But this

argument does not appear in their summary judgment motion.

Rather, the plaintiffs only argued below that their trespass injury

was crop damage, which could, they claimed, be demonstrated

without expert testimony. As we noted, supra, the district court

properly rejected that argument.
10

Plaintiffs’ claims for battery, nuisance, and intentional

infliction of emotional distress stand on different footing; none

of those claims requires proof of physical harm, and we see no

reason why expert testimony should be necessary to prove these

claims. See Evans v. Washington Ctr. for Internships &

Academic Seminars, 587 F. Supp. 2d 148, 150 (D.D.C. 2008)

(Battery requires a showing of a harmful or offensive touching.);

Homan v. Goyal, 711 A.2d 812, 817 (D.C. 1998) (A defendant

is liable for intentional infliction of emotional distress when the

plaintiff proves that the defendant’s conduct was outrageous,

intentional or reckless, and that it caused the plaintiff severe

emotional distress.); B & W Mgmt., Inc. v. Tasea Inv. Co., 451

A.2d 879, 882 (D.C. 1982) (“A public nuisance is an

unreasonable interference with a right common to the general

public,” and “private nuisance is a substantial and unreasonable

interference with private use and enjoyment of land.”) (citing

Rest. 2d Torts §§ 821B(1), 821D (1979)). Of course, we do not

mean to suggest as a matter of law that expert testimony is

always unnecessary where these torts are concerned. We simply

recognize that the defendant has presented no persuasive

arguments as to why expert testimony is necessary here.

Accordingly, the district court erred in dismissing these claims

– at least on the basis of a failure to produce expert testimony.2

By contrast, plaintiffs’ claim for negligent infliction of

emotional distress is more vulnerable. To recover under this tort

theory, plaintiffs must prove that they were within the “zone of

2

It is entirely possible that plaintiffs may be unable to produce

enough evidence relating to other elements of these torts, but that is an

issue for the district court to consider in the first instance.
11

physical danger” created by the defendant’s negligent action. A

classic example is that of the reckless driver who speeds by a

pedestrian, missing her by only inches. See, e.g., Quinn v.

Turner, 155 Ariz. 225, 226 (Ct. App. 1987). But under District

of Columbia caselaw a plaintiff must be in actual physical

danger to recover. The question is not the reasonableness of the

plaintiff’s distress, but rather the unreasonableness of the

defendant’s conduct. For example, it may be entirely reasonable

for a plaintiff to suffer severe emotional distress at seeing a

relative injured, but a defendant does not breach a duty to

plaintiffs unless he actually exposes them to danger. Williams v.

Baker, 572 A.2d 1062, 1064 (D.C. 1990). Because expert

testimony is necessary to determine whether any plaintiffs were

actually in the zone of physical danger, we affirm the district

court’s dismissal of the negligent infliction of emotional distress

claims.3

* * *

We remand for consideration of the individual plaintiffs’

claims for battery, nuisance, and intentional infliction of

emotional distress. In all other respects, the judgment of the

district court is affirmed.

So ordered.

3

 A toxic exposure case differs from that of the reckless driver

who barely misses a pedestrian because toxic torts plaintiffs will likely

not know for certain, at the moment of exposure, whether they have

had a close call. It is not until the nature of the substance is determined

that it is possible to say for certain whether a plaintiff was within a

zone of physical danger. That a plaintiff might be quite reasonably

distressed at being sprayed with an unknown substance does not affect

the result.