### UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA

Venancio AguasantaArias, 

### etal., Plaintiffs,


### v. DynCorp, 

### etal., Defendants.
NestorErmogenes Arroyo Quinteros, 

### etal., Plaintiffs, 

### v. DynCorp, 

### etal., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 

### CaseNo. l:Olcv01908 (ESH) REDACTED

Case No. 1:07cv01042 (ESH) (Cases consolidated for case management and discovery) REDACTED

MEMORANDUM OPINION Plaintiffs, over two thousand Ecuadorian citizens, allege that airplanes sprayedthem and their property with the herbicide glyphosate during an anti-drug fumigation campaign conducted by an American company, defendant DynCorp, in consultation with the U.S. Department of State. Two separate 

### cases-Quinterosv. DynCorp, CaseNo. 07-cv-1042 and

### Arias v. DynCorp, Case No. 01-cv-1908-havebeen consolidated inthis litigation, andthe claims oftwenty test plaintiffs selected for initial adjudication. Afterthe D.C. Circuitremanded the case with only three claims remaining (battery, intentional infliction ofemotional distress (IIED), and nuisance), 

### Arias v. DynCorp, 752 F.3d 1011 (D.C. Cir. 2014), it was reassigned to this Court.\ Defendants now move for summaryjudgmentas to the twenty testplaintiffs' three remaining common law claims, and ask thatthe Court's decision bind the other 1,998 non-test plaintiffs. (Defs.' Motion for Summary Judgment, December 14, 2014 [Quinteros ECF Nos. 362 (Redacted) & 363 (SEALED);AriasECF Nos. 414 (Redacted) & 415 (SEALED)] ("Defs.' Mot.").) Forthe following reasons, the Court grants the Motion in part and denies it in part. 

### BACKGROUND Since the late 1990s, the United States and Colombiahave cooperated in a program known as "Plan Colombia," which includes a variety ofpolicies designed to combat Colombian drug cartels. The Department ofState hired DynCorp to help eradicate Colombian cocaine and heroin poppy plantations by using airplanes to spray aerial fumigants over Colombian drug farms. SeeArias v. DynCorp, 856 F. Supp. 2d 46, 49 (D.D.C. 2012). According to plaintiffs, however, the planes also released a "fumigantthat is harmful to humans, animals, and plants otherthan cocaine and opium poppies" onto plaintiffs' lands in the Sucumbios province of Ecuador, nearthe border with Colombia. 

### Id. 1 On September 11, 2001, plaintiffs filed a putative class action onbehalfofall Ecuadorians who lived within ten miles ofthe Colombianborder. (See Comp

### I. [Arias ECF No. 1] ("Arias Compl.").) TheAriasplaintiffs allege that glyphosate drifted across the border from Colombia and landed on theirproperties andbodies, and thatthe planes themselves actually crossed the border into Ecuador and sprayed individuals from directly overhead. In 2006 and

1 It is undisputed that DynCorp is the prime contractorwith the U.S. government and is responsible for performance ofall obligations underthe contract, including training, equipping, and directly supervising all pilots flying Plan Colombia missions. (Pis' Statement ofUndisputed Material Facts, March 2, 2015 [Arias ECF No. 417] ("Pis' SUMP").) 22007, additional cases were filed in the Southern District ofFlorida, on behalfofindividuals now referred to as the "Quinteros Plaintiffs." Those cases were transferred to this district on May 23, 2007, where they were consolidated with theArias lawsuit and assigned to then ChiefJudge Richard Roberts. 2 At that point, overthree thousand plaintiffs became active participants in the consolidated litigation, and theAriasplaintiffs dropped their class action demand. (First Am. Compl., March 24, 2008 [Arias ECF No. 66].) Due to the enormous number ofplaintiffs, the district courtpursued a testplaintiffcase management framework to facilitate global resolution. In November 2007, plaintiffs proposed twenty individuals for a first phase ofadjudication, including sixteen adults and four minors. (See Joint Rule 16.3 Statement, Nov. 19, 2007 [Quinteros ECF No. 19].) The parties then proceeded to conduct fact and expert discovery targeting the claims ofthe twenty testplaintiffs, which closed in May 2011. In 2013, the district court granted summaryjudgment in favor ofdefendants. Arias v. DynCorp, 928 F. Supp. 2d 1 (D.D.C. 2013). Plaintiffs appealed. The D.C. Circuit affirmed the dismissal ofall claims for personal injury and property damages, due to plaintiffs' failure to substantiate them with experttestimony as to general causation; however, it also found that experttestimony was not necessary to substantiate the three common law claims that do not depend on demonstrations ofphysical harm: battery, IIED, and nuisance. Arias v. DynCorp, 752 F.3d 1011, 1018 (D.C. Cir. 2014). Followingremand, the post-appeal case is considerably narrower, consisting of2,018 plaintiffs (including the group oftestplaintiffs) and three remaining common law claims.

2 Then ChiefJudge Roberts presided overthe case until his retirement in March 2016, after which it was reassignedto this Court. 3Defendants moved for summaryjudgmentas to the plaintiffs' remaining three common law claims on December 15, 2014. On March 2, 2016, plaintiffs filed their Opposition, including a notification that test plaintiffEdgar Sandoval had recently died. (Pls.' Oppositionto Mot., March 2, 2015 [Quinteros ECF No. 365,AriasECF No. 417] at 2 n.2 ("Pls.' Opp.").)3 Defendants then filed a motion onMarch 11, 2016, seeking leave to amend their Answerto add
a statute oflimitations defense. (See Motion to Reinstate the Defendants' August 11, 2011 Motion for Leave to Amend TheirAnswerto the Quinteros Plaintiffs' FirstAmended Consolidated Complaint [Quinteros ECF No. 366].) Defendants' Reply in Support oftheir Motion for Summary Judgment was filed onApril 16, 2016. Afterthis Courtwas reassigned the Arias-Quinteros case on April 6, 2016, it held a Motions Hearing on July 15, 2016. ANALYSIS I. STANDARD OF REVIEW Summaryjudgment is appropriate when a party fails to "make a showing sufficientto establish the existence ofan element essential to thatparty's case, and on which thatparty will bearthe burden ofproofat trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the party seeking summaryjudgmentinforms the courtofthe basis for its motion and identifies those parts ofthe record that demonstrate the absence ofa genuine issue ofmaterial fact, id. at 323, the burden shifts to the nonmoving party, who must offer more than a "mere
... scintilla ofevidence" to support its claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

3Although plaintiffs indicated thatthey were planning to move pursuantto Federal Rule of Civil Procedure 25(a) to substitute a party to prosecute Mr. Sandoval's claim, no such motion has been filed at this time. Thus, because ninety days have passed since notification ofMr. Sandoval's death, the Court must dismiss his test claim in its entirety. See Fed. R. Civ. P. 25(a) ("Ifthe motion [to substitute] is not made within 90 days after service ofa statement noting the death, the action by or againstthe decedent mustbe dismissed."). 4(1986). "Although the finder offact may draw inferences from the evidence, they must be reasonably probable and based on more than speculation." Rogers Corp. v. EPA, 275 F.3d 1096, 1103 (D.C. Cir. 2002) (internal citation and quotation marks omitted). "The summary judgment standard requires thatthe Court construe the facts and make all inferences in the plaintiffs' favor, but it does not command the Courtto credit as true naked assertions lacking any basis in the record." Ross v. DynCorp, 362 F. Supp. 2d 344, 361 (D.D.C. 2005). II. ADJUDICATION OF TEST PLAINTIFFS' CLAIMS The recent death ofEdgar Sandoval (and plaintiffs' failure to submit a Rule 25 motion within ninety days ofnotification ofdeath) leaves nineteen testplaintiffs.4 As an initial matter, the Court considers whether adjudication ofthese nineteen testplaintiffs' claims affects the prospects ofthe other 1,998 non-testplaintiffs. Defendants argue thatthese non-testplaintiffs have consented to be boundby the Court's findings as to the legal sufficiency and timeliness of the test claims. Defendants are not simply suggesting that adjudication ofthe test claims extends to common issues impacting general liability and causation. Instead, they insist that all rulings-from the timeliness ofatestplaintiffs cause ofaction (Defs.' Mot. at 22-24), to specific causation, damages, and case-by-case details such as whether DynCorp's herbicide contacted the skin ofa testplaintiff(id. at 3, 13, 19-20) have the powerto extinguish thousands ofnon-testplaintiffs' causes ofaction. Even ifsuch an extraordinary arrangement did not already strike the Court as implausible and unfair, ifnot unconstitutional, the Court also cannot find any evidence ofits existence in the record. When asked at oral argument to provide the Courtwith specific evidence that Judge Roberts had intended such an unprecedented framework, defense counsel

4See note 3 (citing Rule 25(a) as grounds for dismissal ofMr. Sandoval's claim), supra. 

### 5was unable to do so. (See Oral Argument, July 15, 2016, Tr. at 24.) On the contrary, it appears thatthe perfectly reasonable purpose ofthis case managementplanwas to adjudicate the factual sufficiency ofa group oftest claims priorto subjecting thousands ofother claims to discovery, summaryjudgmentbriefing, and trial. The court discussed the testplaintiffapproach at a status conference in 2008, noting its purpose was "to give everybody a broad idea ofwhatwe have." (Pls.' Opp., Ex. A, Nov. 25, 2008, Tr. at 27-28.) The court encouraged the parties to select
some kind ofsample to "narrow[ ] down the number of
...testtrials or identify[ ] in some realistic way what playing field [they] should be on with respect to potentially discussing
... global settlement." (Id. at 28.) Ata 2009 status con(erence, the court advisedplaintiffs to select a "mix" ofstrong and weak cases to avoid any delay in "see[ing] how the weak cases play out and what impactthat may eventually have on any theoretical settlement discussions." (Pls.' Opp, Ex. B, July 17,**2009~** Tr. at-36.) Then, at a 2010 status conference, the court again clearly indicated thatthe test plaintiffgroup would be litigated first: The aim has been in this
... litigation to identify a test group ofplaintiffs and to prepare the cases potentially for trial
...

### andthen once the results of the trial are infor the test group of plaintiffs, allow those results to inform thefuture direction of case efforts, be ittoward settlement or ... for additional trials. (Id., Ex. C, Apr. 30, 2010 Tr. at 4:3-10 (emphasis added).) Following the establishment ofthis framework, DynCorp narrowed its discovery efforts to focus on the testplaintiffs. No non-test plaintiffs were deposed. Itthus appears that Judge Robert's intent was simple and unremarkable for this type of
mass toxic tort case: to litigate the claims ofa group oftestplaintiffs in the hopes offacilitating a global resolution for the remaining plaintiffs.5

5 Although the D.C. Circuit affirmed the dismissal ofclaims relating to physical injury and crop damage for 

### all plaintiffs in the case (not only test-plaintiffs), it noted that plaintiffs had failed to 6Moreover, extending the resolution ofindividual issues to bind non test-plaintiffs would be contrary to law. Certainly, there are numerous examples ofcourts using "bellwether" plaintiffs to resolve common issues ofliability and general causation, but binding large populations ofplaintiffs to the prospects ofa test group on issues like timeliness and damages would strain the limits ofdue process. See In re Chevron USA, 109 F.3d 1016, 1017 (5th Cir. 1997) (in oil spill case with overthree thousand plaintiffs and 30 testplaintiffs, only general causation and common liability issues may bind non-testplaintiffs);Allen v. US., 527 F. Supp. 476, 490 (D. Utah 1981) (rejecting "wholesale" timeliness determination for hundreds of plaintiffs and holding that "[e]ach individual plaintiff
... is lawfully entitled to an individualized determination ofthe statute oflimitations issue"); Fisher v. Ciba Specialty Chemicals Corp., 238 F.R.D. 273, 309 (S.D. Ala. 2006) (agreeing with DynCorp defendants thattheir "limitations defense weighs against class certification because ofits individual-specific nature").6 Accordingly, the Court's presenttask is limited to evaluating defendants' Motion with respect to the claims ofthe nineteen remaining test plaintiffs selected by the parties.

preserve for appeal their argumentthatthe ruling should not be extended to the non-test plaintiffs. Arias v. Dyncorp, 752 F.3d 1011, 1016 (D.C. Cir. 2014). The Court ofAppeals actually expressed doubtthatthe otherplaintiffs had consented to be bound by the outcome of the test litigation. Id Moreover, the dismissal ofthe physical damage claims was a matter of general causation germane to all plaintiffs, due to the plaintiffs' failure to provide expert testimony in a toxic tort case. See id at 1016 n.1 ("The distinction [between general causation and specific causation] is important, because ifthe plaintiffs cannot show general causation, that is a reason to dismiss all ofthe crop damage claims, whereas proofofspecific causation might be expected to vary from case to case.").
6 In fact, defendants themselves stated that a statute oflimitations defense "would ofcourse be raisedon a case-by-case,plaintiff-by-plaintiff basis based on the date(s) ofan individual plaintiffs exposure and injury" when they first requested permission to amend their Answerto include it as an affirmative defense. (Defs.' Reply in Support oftheir Motion Seeking Leave to Amend, Sept. 1, 2011 [Quinteros ECF No. 227] at 8.) 

### 7

### III. STATUTE OFLIMITATIONS Defendants argue thatthe adult testplaintiffs' remaining common law claims are barred by the applicable statutes oflimitations for Battery, IIED, and Nuisance. (Defs.' Mot. at 20.) Plaintiffs counterthatdefendants have forfeited their statute oflimitations defense by not pleading it as an affirmative defense in any ofthe five separate Answers and Amended Answers it has filed in this consolidated litigation. (See Answer, August_29, 2007 [Arias ECF No. 54]; Amended Answer, Oct. 15, 2007 [Arias ECF No. 57]; Answer to Amended Compl., March 31, 2008, [Arias ECF No. 67]; Answer, Sept. 28, 2007 [Quinteros ECF No. 16; Answer to Amended Compl., April 14, 2008 [Quinteros ECF No. 24].) "Ordinarily in civil litigation, a statutory time limitation is forfeited ifnot raised in a defendant's answer or in an amendment thereto." Dayv. McDonough, 547 U.S. 198, 202 (2006). The D.C. Circuit has made clear that "Rule 8(c) means what it says: a party mustfirst raise its affirmative defenses in a responsive pleading before it can raise them in a dispositive motion." Harris v. Secretary, US, Dep'tofVeteransAffairs, 126 F.3d 339, 345 (D.C. Cir. 1997) (emphasis added); Fed. R. Civ. P. 8(c)(l) (responsive pleadings "must affirmatively state any ... affirmative defense, including
... statute oflimitations"). The pleading requirement of Rule 8(c) "gives the opposing party notice ofthe defense ofuntimeliness andpermits the party to develop in discovery and to argue before the District Courtvarious responses to the affirmative defense." These responses could include, for example, "facts and legal arguments that require the tolling ofthe statute, whether by action oflaw,**~y** agreement ofthe parties, or by equitable means." Id. at 343. Rule 15 provides a mechanism whereby aparty who has failed to plead an affirmative defense may cure his error. 

### "Inthe absence ofany apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part ofthe movant,
8repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue ofallowance ofthe amendment, futility ofamendment, etc.-the leave sought should, as the rules require, be freely given." Foman v. Davis, 371 U.S. 178, 182 (U.S. 1962). As discussed above, the procedural history ofthis case is not typical. Aboutfour years after filing their initial Answer in the Quinteros case, and following the close ofdiscovery in May 2011, defendants first sought leave to amend it to include a statute oflimitations defense
on August 11, 2011. Plaintiffs opposed the motion on multiple bases, including the fact that a statute oflimitations defense would prejudice them, requiring additional fact-gathering as to equitable tolling theories after discovery had already closed. Defendants' only real explanation for their delay was that they had only recently learned the dates when the twenty testplaintiffs had alleged injuries from deposition testimony. (Defs.' Reply in SupportofMotion Seeking Leave to Amend, Sept. 1, 2011 [Quinteros ECF No. 227] at 10.) The court ultimately denied defendants' motion as moot after it granted their motion for summaryjudgment. (Quinteros ECF No. 345 at 2.) After the D.C. Circuit remanded the case to the district court, defendants raised their statute oflimitations argument in the instant Motion for Summary Judgment. Afterplaintiffs noted in their March 2, 2015 Opposition that defendants had never bothered to renew their Motion to Amend, let alone been grantedleave to amend their Answer, defendants filed a motion to add the statute oflimitations defense to their Answer on March 11, 2015. The Court is mindful thatthe Rules were not designed to function as formalistic barriers to proper decision-making and thatthey "rejectthe approach that pleading is a game ofskill in ' which one misstep by counsel may be decisive to the outcome." Harris, 126 F.3d at 344

9(quoting Conley v. Gibson, 355 U.S. 41, 48 (1957)). In this case, however, the Court is not evaluating "one misstep," and cannotview defendants' repeated failures to cure the deficiencies in their Answers as anything but undue delay. Defendants have filed five separate Answers and Amended Answers in the Quinteros andArias litigation. They failed to include a statute oflimitations defense in eithertheir 2007 Answerto the Quinteros Complaint or the 2008 Answerto the Quinteros Amended Complaint. Their first request thatthe court grant them permission to add such a defense came in 2011-fouryears after their initial Answer. Their second attempt came over seven years after their Answer, and defendants did not seek leave to amend until raising the statute oflimitations argument in a dispositive motion. See Jones v. Mukasey, 565 F.Supp.2d 68, 74 (D.D.C. 2008) (holding it to be "improper" for defendant to raise an affirmative defense "forthe first time in his summaryjudgmentmotion");
see also Bode & Grenier, LLPv. Knight, 808 F.3d 852, 860 (D.C. Cir. 2015) (holding that a request to amend an Answer to add new defenses "simply came too late," having "arrivedfour years after litigation began"); Elkins v. District of Columbia, 690 F.3d 554, 565 (D.C. Cir. 2012) (finding undue delay when a motion to amend arrived five years after the initial complaint); Doe v. McMillan, 566 F.2d 713, 720 (D.C.Cir.1977) (affirming a denial to amend a pleading thirty-eight months after the filing ofthe complaint). Defendants' explanation for the delay-thata statute oflimitations defense did not become relevant until testplaintiffs' deposition testimony about the dates oftheir injury-is nonsensical. First, the need to preserve a limitations defense should have been dramatically
more obvious before the crowd ofover three thousand plaintiffs was narrowed down to twenty test cases, not less. After all, the overwhelming majority ofthe thousands ofEcuadorians alleging injuries beginning in December 2000 filed their claims in 2007-2008. (See Amended

10Comp!., April 3, 2008 [Quinteros ECF No. 23] at 6.) The idea that defendants had no strategic
reason to preserve a limitations argument until they learned specific dates ofinjury from a small group oftwenty testplaintiffs is simply disingenuous. Even though Harris is clearthatprejudice is not required to deny a party's Rule 15 motion, seeJones v. District of Columbia Dept. of Corrections, 429 F.3d 276, 279 (D.C. Cir. 2005), the Court nonetheless finds prejudice here. First, when plaintiffs proposed the twenty test-plaintiffs in March 2009, they had received no fair notice thattimeliness might be a relevant issue in the litigation. A party "mustmake strategic decisions about howto proceed, and can plot its course adequately only ifit can anticipate which issues will dispose ofthe case. Failure to raise an affirmative defense in pleadings deprives the opposing party ofprecisely the notice that would enable it to dispute the crucial issues ofthe case on equal terms." Harris, 126 F.3d at 343. Surely notice ofdefendants' intentions would have been a meaningful consideration in selecting testplaintiffs whose injuries had occurred within the limitations period for the various common law causes ofaction. Second, defendants' excessive delay in seeking leave to amend their Answer until after plaintiffs had pointed outthe deficiency in their Opposition cannot be excused. Whetherthe delay was due to bad faith or innocent mistake, defendants effectively forced plaintiffs to formulate a legal argument without knowing the full state ofplay. Finally, defendants argue that a Joint Status Report from September 2014 demonstrates fair notice because it mentioned an impending, separate motion for summaryjudgmentbased
on a statute oflimitations defense. (Defs.' Reply at 18 n.41.) Courts have found similar attempts to show notice through alternative means outside the mechanisms ofthe Federal Rules ofCivil Procedure to be inadequate atbest, and often, indications ofundue delay and

11gamesmanship. 

### See, e.g., Bode & 

### Grenier, LLP, 808 F.3d at 861 (appellants' argument "that they gave fair notice of
...[an affirmative] defense in deposition questions posed years before they filed the motion to amend
...fails" and "proves only that
...appellants had no reason to wait years before addressing those defenses in their answer"). Moreover, even ifthe Status Report 

### didconstitute fair notice to plaintiffs at best, it came three years after the close ofdiscovery. In short, defendants failed to raise the statute oflimitations defense in their Answers, waited years before seeking permissionto address that failure, and did not provideplaintiffs with sufficient notice to properly account for its viability. The Court denies defendants' Motion to Amend TheirAnswer, and consequently finds the testplaintiffs' claims to not be time-barred.7 

### IV.BATTERY In addition to challenging the timeliness ofthe testplaintiffs' claims, defendants also argue thatthere is insufficient evidence to satisfy the elements oftestplaintiffs' remaining
common law claims ofBattery, IIED, and Nuisance. Plaintiffs respond that discovery has produced adequate evidence to suggestthat there are genuine issues ofmaterial fact for ajuryto weigh as to each cause ofaction. The Court considers the merits ofeach common law claim in turn. 8 A battery is "an intentional actthat causes harmful or offensive bodily contact." 

### Harris
v. US. DepartmentofVeteransAffairs, 776 F.3d 907, 913 (D.C. Cir. 2015) (citing**Evans~Reid**

### v. Districtof Columbia, 930 A.2d 930, 937 (D.C. 2007)). The intent element is satisfied ifthe actor

7 As a result ofthis conclusion, the Court need not consider the parties' arguments regarding the proper limitations period for plaintiffs' IIED claims orthe availability oftolling.
8 

### It is uncontested that D.C. law governs plaintiffs' three remaining common law claims. 12realizes with "substantial certainty" that harmful oroffensive contactwill result from his conduct. Restatement (Second) ofTorts § 18, cmt. e; see also Konah v. Districtof Columbia, 915 F.Supp.2d 7, 23 (D.D.C. 2013). Defendants argued at the hearingthat the intent element would only be satisfied in this case by evidence thatpilots were specifically targeting individuals
on the ground with the motivation ofhitting them with herbicide. (Oral ArgumentTr. at 26.) This is not an accurate statement ofthe law. The intent element ofBattery does not require purposeful intentto hit a specific person, but merely knowledge thatharmful or offensive contact to somebody will occurwith substantially certainprobability. Acosta Orellana v. CropLife Intern., 711 F.Supp.2d 81, 91 (D.D.C. 2010); see also Roeder v. At!. RichfieldCo., 2011 WL 4048515, at *6 (D. Nev. Sept. 8, 2011) (discussing battery where plaintiffs alleged exposure to toxic substances that escaped a mine, the court found intentto be satisfied "where an actor subjectively desires no harm to any person at all, butbelieves that harmful consequences are substantially certain to befall someperson as a result ofhis actions"). Thus, to satisfy the elements ofbattery in this case, DynCorp or its pilots must have: (1) known with substantial certainty (2) that the glyphosate herbicide being released was making bodily contactwith testplaintiffs; and (3) thatbodily contactwas either offensive orharmful. A. Substantial Certainty While "issues ofintent often raise disputes overmaterial fact that can bestbe resolved at trial, no special rules apply to state-of-mind questions. When a moving party meets the requirements ofRule 56, summaryjudgmentwill be granted." Sununu 

### v. PhilippineAirlines, Inc., 792 F. Supp. 2d 39, 49 (D.D.C. 2011). "[A] court must initially determine whetherthe plaintiffs' allegations, viewed in the lightmost favorable to the plaintiff, are minimally sufficient to showthe existence ofsuch intent."' Ross, 362 F. Supp. 2d at 360 (alterations

13omitted) (quoting Waldon v. Covington, 415 A.2d 1070, 1078 (D.C. 1980)) (internal quotation marks omitted)). The Court finds that there are disputed issues offact as to whether defendants were substantially certain that individuals would be contacted by the sprayed chemicals. DynCorp became aware that individuals in the Sucumbios province ofthe Ecuadorian borderlands were complaining ofbeing sprayed by Plan Colombia pilots by September2001, at the latest, when theArias Complaintwas filed.
(See Pls.' SUMF**~** 19

(See, e.g., Pls.' SUMF**~~** 7-10;**id.~** 11 (quoting Pls.' Opp., Ex. 1, at DEDP-00074634).)

(See Pls.' Opp., Ex. 1, atDOS 3040; see also 

### id. at DEMP 27174

14(See, e.g., Pls.' Opp., Ex. 1, at DOS 32504.)

(Pls.' Opp., Ex. 1, atDEMP-172255.)

DynCorp themselves have admitted to seven specific missions thatreleased spray in Ecuadorbetween 2001 and 2004 (Defs.' Mot. at4-5; Defs.' App., Dec. 15, 2014 [ECF No. 415-2] at 343-344), despite the fact thatDynCorp had no contractual authorization or permission from the U.S. governmentto spray in Ecuador. (See Dep. ofRandy Beers, Assistant Secretary ofState for International Narcotics and Law EnforcementAffairs, at 21).
(Pls.' Opp., Exs. 12-15.) Evidence shows not only proximity between spraying and testplaintiffs' homes, but also that pilots could clearly see the people, crops, and the ground belowthem when spraying. (Pls.' SUMF 

### if 19.) In addition, most ofthe testplaintiffs testified thattheplanes sprayedherbicide extremely close to their homes. (See Pl's SUMF 

### ifif 2, 4; SDMF 

### if 9.) Spraying chemicals in such close proximity to plaintiffs' properties suggests thatthe pilots themselves were
15substantially certain ofthe consequences oftheir conduct. See Werlein v. US., 746 F. Supp. 887, 907 (D. Minn. 1990) (because the defendant "disposed ofhighly toxic substances into sandy ground directly above a regional aquifer," there was "sufficient evidence that [it] knew that its conduct was substantially certain to cause an offensive orharmful contactto preclude summaryjudgment").
(See, e.g., Pis.' Opp., Ex. 1, at DEMP-100489

(Pls.' Opp., Ex. 1, at DEMP-115700.)

Defendants respond that, to the extentthat individuals were contacted by spray, pilots
were not intentionally spraying individuals belowthem; instead, herbicide "drift" from wind patterns was to blame. 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 notdrift outside spray zones

16- (Pls.' Opp., Ex. 1, DEMP-168106

(See, e.g., Pls.'**SUMP~** 8.) Second, atthis stage oflitigation, it is difficult-withoutmore facts-to isolate those testplaintiffs who may have been sprayed as a result of"drift" incidents from those who were directly sprayed by pilots flying overhead. In sum, the Court finds sufficient evidence to supportthe contention thatDynCorp understood the troubling consequences ofits spray operations in Ecuador. There is thus a material factual dispute as to whether defendants and theirpilots were "substantially certain" thatherbicide was routinely contacting individuals on the ground in Ecuador. 

### B. Bodily Contact Clearly there can be no battery where there is no evidence ofphysical contactbetween the herbicide spray and a test plaintiff. See Dingle v. Dist. of Columbia, 571 F. Supp. 2d 87, 98 (D.D.C. 2008) ("In view ofthe centrality ofoffensive touching to the tort ofbattery, summary judgment is appropriate where the plaintifffails to allege she was offensively touched.").

17Although plaintiffs assertthat fourteen ofthe original twentyplaintiffs alleged that spray touched their bodies (PJ's Opp. at 23), the Court finds that only nine ofthe test plaintiffs (including the now-deceased Edgar Sandoval) testified to bodily contact.9 Because the Court finds no evidence ofbodily contact for the remaining eleven test plaintiffs, their battery claims do not survive summaryjudgment. 10 C. Offensiveness Whether bodily contact qualifies as "offensive" follows an objective reasonableness standard. Restatement (Second) ofTorts § 19 ("A bodily contact is offensive ifit offends a reasonable sense ofpersonal dignity."). Ittherefore matters less whetherthe testplaintiffs found the spray on theirbody to be offensive, as opposed to whetherthejurywould find the contact reasonably offensive. See Evans v. Washington Ctr.forInternships andAcademic Seminars, 587 F. Supp. 2d 148, 150-51(D.D.C.2008) (finding "defendants' argumentthatthe contact could not possibly be construed as harmful or offensive
... is also a factual question"). In the Court's view, having one's body sprayed with chemicals could constitute offensive bodily contactto a reasonablejuror. It is instructive thatthe Restatement uses an example ofbeing splashed with "afew drops ofdirty water"-amuch less objectively offensive bodily contactthan being covered in glyphosate herbicide by overheadplanes-as a

9 The following nine test plaintiffs alleged in sworn testimony thatthe spray touched their skin: Victor Mestanza (Dep. Tr. at 68), Jorge Salas (Dep. Tr. at 26-27, 40-41, 58), Lauren Sanchez (Dep. Tr. at 40, 79, 80), John Salas (Dep. Tr. 34-35), Dociteo Sandoval (Dep. Tr. at 41, 67), Wilber Sandoval (Dep. Tr. at 25, 26, 34, 35), Edgar Sandoval (Dep. Tr. at 22, 41, 43), Elvia Alvarez (Dep. Tr. at 33-34), and Edgar Balcazar (Dep. Tr. at40). 10 The following eleven test plaintiffs never testified to having been touched bythe herbicide, and thus defendants' motion for summaryjudgment is granted with respectto theirbattery claims: Santos Calero, Calixta Pineda, Betty Calero, Yuli Calero, Edy Mestanza, Jennifer Mestanza, ErciliaBosquez, RosaAltamirano, Luciano Quevedo, Edith Quevedo, Robinson Quevedo. 18textbook example ofbattery. Restatement (Second) ofTorts§ 18, cmt. g ("Athrows dirty water from his window at B who is walking on a street below. A few drops fall on B'shand but do him no bodily harm. A is subjectto liability to B."); 

### id § 18, cmt. c (one is liable for battery "ifhe throws a substance such as water, upon the other"); see also US. v. Gomez, 690 F.3d 194, 211 (4th Cir. 2012). The Court is not persuaded by defendants' reliance on two WestVirginia cases, in which the court did not find battery based on plaintiffs' exposure to chemicals. (Defs.' Mot. at 20 (citingMcClenathan v. Rhone-Poulenc, Inc., 926 F. Supp. 1272 (S.D. W. Va. 1996); Rhodes v. E.I. du Pontde Nemours & Co., 657 F. Supp. 2d 751, 756, 773 (S.D. W. Va. 2009).) Unlike the District ofColumbia, WestVirginia does notrecognize battery based on offensive contact alone. See Rhodes v. E.I. du Pontde Nemours & Co., 636 F.3d 88, 95 (4th Cir. 2011) (citing FuneralServs. by Gregory, Inc. v. Bluefield Comm. Hosp., 186 W. Va. 424 (1991) (refusing to embrace a definition ofbatterythat does notrequire "actual physical impairment"). By contrast, a Kentucky case found that coal dust contacting the skin ofthe plaintiffs could constitute battery, since in Kentucky, battery "is an offense against the dignity ofthe plaintiff[and thus] neither physical injury nor actual damage must be proved." Barnette
v. GrizzlyProcessing, LLC, 809 F. Supp. 2d 636, 647-648 (E.D. Kty. 2011) (citing 13 Ky. Prac. TortLaw§ 2:1 (2010)). That is not the case here. As the Court ofAppeals noted in its opinion in this case, the very reason thatthe test plaintiffs' battery claims survived was because battery "requires a showing ofa harmful or offensivetouching." Arias, 752 F.3d at 1017 (emphasis in original) (citing Evans, 587 F. Supp. 2d at 150). The Court therefore grants defendants' Motion for Summary Judgment as to the battery

19claims ofthe eleven test plaintiffs who did notprovide evidence ofbodily contact with the spray, but denies it withrespectto the battery claims ofthe remaining nine. 11 V. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED) Intentional infliction ofemotional distress requires "extreme and outrageous conduct on the part ofthe defendant which intentionally or recklessly causes the plaintiffsevere emotional distress." Konah, 916 F. Supp. 2d at 22 (D.D.C. 2013). Forthe test plaintiffs' IIED claims to survive summaryjudgment, they must demonstrate some material dispute offact as to each of the following elements: (1) defendants' recklessness, (2) defendants' extreme and outrageous conduct, and (3) severe emotional distress caused by defendant. A. Recklessness Recklessness is a lower threshold ofmens rea than the "substantial certainty" standard ofintent required to satisfy battery. Whereas defendants are only liable for battery ifDynCorp
or its Plan Colombia pilots realized with substantial certainty thatthey were dumping herbicide
on plaintiffs, they need only have consciously disregarded the risks oftheir spraying to meetthe recklessness element ofIIED. In re Romansky, 938 A.2d 733, 740 (D.C. 2007). Thus,**Dy~Corp's** recklessness can be inferred from the conduct already outlined in Part IV.A. See Howard Univ. v. Best, 484 A.2d 958, 985 (D.C. 1984) (holding thatrecklessness may be inferred from one's conduct). The record can be read to reflect a consistentpattern of reckless behavior by DynCorp and its pilots. Defendants were repeatedly informed thattheir pilots were spraying chemicals on communities in Ecuador-atthe latest, by September 2001- yet continued to carry out spray operations in a mannerthat deeply troubled Ecuadorian

11 Although Edgar Sandoval provided sufficient evidence ofbattery, his complaintwill be dismissed, following his death. See note 3, supra. 20population centers, the United States government, and employees within DynCorp itself.

(Pls.' SUMF 

## iiii 2-7, 20-29; SMDF 

## ii 9; see also Pis.' SUMF 

## ii 8 (The record suggests that more than 75,000 spray flights broke speed parameters, over 16,000 sprayings occurred above the maximum spray height, and more than 27,000 sprayings were in violation ofthe spray mix application rate).) 12 In short, there is ample evidence to suggestthatDynCorp and its pilots simply ignored (and sometimes mocked) the fact thatplaintiffs from specific areas ofEcuador 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. There is no question that plaintiffs have presented sufficient evidence ofrecklessness to survive summaryjudgment. B. Outrageousness In determining whether reckless conduct is outrageous, "the court must considerthe specific context in which the conducttookplace." Ortbergv. Goldman Sachs Grp., 64 A.3d 158, 163 (D.C. 2013). DynCorp's decision to continue to spray missions spraying border communities in Ecuador for years after it was told that such spraying was causing harm aggravated what already amounts to troubling conduct. Waldon, 415 A.2d at 1077 (outrageousness for an IIED claim may be inferred "whenthe defendanthas informationthat

12 Formore evidence demonstrating defendants' recklessness, see Part IV.A, supra. 21plaintiffs health is being adversely affected by his actions and nonetheless fails to desist"). Defendants rely uponPlourde v. Gladstone, 69 Fed.Appx. 485 (2d Cir. 2003), in which the Second Circuit determined thatthe defendant's accidental spraying ofherbicide on a neighbor's property was not outrageous; yetthe court in Plourde deemed itcritical that there had been no complaints ofherbicide drift in prioryears, and the defendant specifically chose an herbicide with a lower propensity to drift. Id. at 488. In this case, defendants were repeatedly informed ofthe damage they were doing and willfully refused to address the problems with pilots who
were disobeying the drift parameters. The fact thatplaintiffs include impoverished farmers who rely ontheir land to survive and defenseless children make defendants' recklessness all the more outrageous. See Drejza v. Vaccaro, 650 A.2d 1308, 1309 (D.C. 1994) (holding "the outrageousness determination mustbe made with [the plaintiffs] special circumstances in mind"). The testplaintiffs were obviously "more susceptible [to emotional distress] than a member ofthe public at large." Id. at 1314. Thejury should be allowed to decide ifthe evidence presented, viewed in context ofthe test plaintiffs' vulnerability, rises to the level ofoutrageousness. Drejza, 650 A.2d at 1316 ("If reasonable people may differ as to whether, given [the plaintiffs] condition and circumstances, [the defendant's] conductwas outrageous ...the issue must be left to_thejury."). Finally, defendants violated U.S. governmentpolicy by disobeying clear reprimands by the Department ofState and spraying territory in Ecuador, where DynCorp's pilots had no legal right to conduct operations. See Best, 484 A.2d at 986 ("Actions which violate public policy may constitute outrageous conduct sufficientto state a cause ofaction for infliction ofemotional distress.").

22

### C. Severe Emotional Distress Under D.C. law, an IIED claim generally requires a plaintiff's distress to be so intense that there is some physical manifestation ofthe emotional turmoil. See Restatement (Second) of Torts § 46 cmt. k (1965) ("Normally, severe emotional distress is accompanied orfollowed by shock, illness, or other bodily harm, which in itselfaffords evidence that the distress is genuine and severe."); Ortbergv. Goldman Sachs Grp., 64 A.3d 158, 164 (D.C. 2013) (requiring emotional distress "ofso acute a nature that harmful physical consequences might be not unlikely to result"). Ifaplaintiffis merely sad orupsetby an event, that does not constitute
severe emotional distress. If, however, an individual's emotional shockpermanently alters their daily activities, changes theirpersonality, destroys their ability to live or sleep comfortably, or overwhelms the person with stress or depression, such physical impacts may suffice under D.C. law. See Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261, 275 (D.D.C. 2005) (citing "various emotional conditions [that] can support an award of compensatory damages for IIED," including depression, stress, and personality changes); Robinson v. Sarisky, 535 A.2d 901, 906 (D.C. 1988) (affirming mental distress award where the plaintiffhad "feelings of violation, anxiety, and helplessness which disrupted his activities and disturbed his sleep over a period ofseveral weeks," underwent a negative personality change, and "drankmore"); Homan


### v. Goyal, 711 A.2d 812, 821 (D.C. 1998) (the plaintiff"was driven from his home for a month in fear for his life,
... missed a day ofwork,
... found it difficultto concentrate when he was at work, and
...had no idea when and ifhis ordeal was going to end"). In this case, some ofthe testplaintiffs claim to have suffered severe emotional distress from the anxious experience ofDynCorp's planes spraying theirproperty or body with glyphosate herbicides. As the D.C. Circuit expressly recognized in this case, "aplaintiffmight

23be quite reasonably distressed at being sprayed with an unknown substance." 752 F.3d at 1018 n.3. Itis important to distinguish physical harm arisingas a manifestation ofthe emotional distress, shock, and fearful experience ofbeing sprayed, from the physical harm and property damage directly causedbythe glophosate spray. Whereas the latter type ofphysical harm required plaintiffs to provide experttestimony as to general causation (which they failed to do), the former is a necessary element oftest plaintiffs' surviving IIED claims. Ofthe original twenty testplaintiffs, five testified to suffering acute emotional distress that included physical signs ofseverity, while fifteen did not. 13 A large number oftest plaintiffs provided declarations attesting to how they were emotionally distressed as a result oftheirphysical injuries, damaged crops, and resulting economic difficulties. (See, e.g., Deel. Edgar Balcazar; Deel. Edith Quevedo; Deel. Calixta Pineda.) These types ofemotional anxiety are not sufficiently severe as
a matter oflaw. By contrast, Elvia Alvarez, Victor Mestanza, Luciano Quevedo, Rosa Altamirano, and Dociteo Sandoval all testified to some type ofphysical manifestation oftheir distress, whetherthat be a changed personality, depression, or loss ofsleep. The Courttherefore denies defendants' Motion for Summary Judgment as to the five aforementioned test plaintiffs' IIED claims, and grants it as to the IIED claims ofthe other fifteen.

13 The following five test plaintiffs testified to suffering severe emotional distress: Elvia Alvarez, Victor Mestanza, Luciano Quevedo, Rosa Altamirano, and Dociteo Sandoval. By contrast, the other fifteen test plaintiffs did not provide sufficient testimony ofsevere emotional distress: Santos Calero, Calixta Pineda, Betty Calero, Yuli Calero, Edy Mestanza, Jennifer Mestanza, Ercilia Bosquez, John Salas, Jorge Salas, Lauren Sanchez, Wilber Sandoval, Edgar Sandoval, Edith Quevedo, Robinson Quevedo, and Edgar Balcazar. 24VI. NUISANCE Defendants argue that the testplaintiffs' nuisance claim fails as a matter oflaw for two
reasons: first, because the D.C. Court ofAppeals has ruled that "[n]uisance ordinarily is not a separate tort in itselfbut atype ofdamage so that aplaintiffseekingto recover on a nuisance theory must allege and prove some sort oftortious conduct." Ortbergv. Goldman Sachs Group, 64 A.3d 158, at 167, 168 (D.C. 2013); and second, because the alleged sprayings were too sporadic and isolated in time to constitute a nuisance, which generally must be continuous and permanent in character. (Defs.' Mot. at 11-12.) Because the Court has found sufficient evidence to supporttwo other types oftortious conduct, defendants' first argument-that nuisance is not recognized as a separate tort under D.C. law-is largely irrelevant. In any event, the Court agrees with defendants' alternative point. To qualify as a nuisance under D.C. law, "the offendingthing must be marked by some degree ofpermanence such thatthe continuousness orrecurrence ofthe things, facts or acts which constitute the nuisance, give rise to an unreasonable use." Ortberg, 64 A.3d at 168. The Ortbergcourt concluded that the plaintiffs allegations in Ortbergoffive demonstrations atthe plaintiffs home and eight demonstrations at his office over a period ofseveral weeks was insufficiently continuous to create a nuisance. Id. The test plaintiffs' nuisance claims are based
on far more sporadic conduct. None ofthe original twenty testplaintiffs claims to have suffered anything resembling an extended period ofcontinuous spraying. Theirdescriptions instead generally reflect isolated, memorable incidents that occurred between one and a handful oftimes
overmultiple years. Nor do they claim to have suffered injuries from the battery and IIED torts

25that have created "substantial harm flowing from some degree ofpermanence with regard to the [DynCorp defendants'] actions." Ortberg, 64 A.3d at 168. 14 CONCLUSION Forthe reasons discussed above, defendants' Motion for Summary Judgment is granted in part and denied in part. A separate Order accompanies this Memorandum Opinion

Date: September 23, 2016 

### Is/ l1£en 

### Sega£ .'JUwef£e ELLEN SEGAL HUVELLE United States District Judge

14 Had the D.C. Circuit not affirmed the dismissal ofall common law claims relating to property damage and physical injury, plaintiffs would have a far easiertime satisfying this "permanent harm" requirement through their claims ofproperty damage and physical injury. Emotional distress and offensive bodily contact are not viable expressions ofpermanence. 26