Eric Lasker, of Hollingsworth LLP, was selected as Litigator of the Week by American Lawyer for his work in a defense victory for DynCorp.
From The Litigation Daily by American Lawyer:
It's been two decades since a lawyer named Cristobal Bonifaz first filed an environmental suit over oil pollution in the Ecuadorean Amazon that would eventually become a global $19 billion legal morass for Chevron Corporation. But Chevron wasn't the only U.S. corporation Bonifaz targeted on behalf of the region's indigenous people. In 2011 he also sued the military contractor Dyn Corp International, claiming its aerial herbicide spraying in conjunction with the State Department's "Plan Colombia" anti-narcotics effort had sickened thousands of Ecuadoreans.
"It is a tragedy of major proportions that in the same region where [Chevron predecessor] Texaco devastated the environment and caused untold suffering to the people of the rainforest, a new enemy now comes from the air, poisoning the people, killing their crops and destroying their land," Bonifaz told sympathetic journalists back in 2002.
Fast-forward to the present. Chevron is paying a battalion of lawyers to wage an incredibly costly battle with the Amazonian plaintiffs and their counsel in at least five countries. Bonifaz, for his part, has been thoroughly sidelined from both cases. And DynCorp? Its lawyers at Hollingsworth LLP, led by Eric Lasker and Rosemary Stewart, are savoring a complete defense victory.
In a February 15 decision made public this week, U.S. District Judge Richard Roberts in Washington D.C., finally threw out the Ecuadorean's case against DynCorp. The judge disqualified the plaintiff's sole expert witness, who was set to testify that they developed health problems because DynCorp sprayed their property with excessive amounts of the herbicide glyphosate. Without the expert witness, Roberts ruled that the plaintiffs couldn't establish causation and granted summary judgment to DynCorp. The ruling knocks out the last remaining claims against DynCorp relating to its herbicide use near the Columbia-Ecuador border.
When the case kicked off in 2001, the standard defense playbook in mass foreign tort cases was to seek dismissal on forum non conveniens grounds. U.S. courts were relatively plaintiff-friendly on the same key issues, like damages, and most corporations preferred their odds in foreign courts. The Chevron vouched for the Ecuadorean court system that the oil giant now says is hopelessly corrupt.
Lasker and Stewart took a different approach and submitted to U.S. jurisdiction. "We didn't have faith in the Ecuadorean courts," Lasker explained.
Still, at first Lasker and Stewart has reason to doubt the wisdom of choosing a U.S. forum. Judge Roberts took more than four years to rule on a motion to dismiss. Then, in 2006, plaintiffs lawyers filed copycat claims in U.S. district court in Florida. By 2007, DynCorp was facing claims by roughly 3,200 individual plaintiffs. Three Ecuadorian provinces also filed suit against DynCorp on behalf of their citizens, demanding $555 million in damages.
After years of discovery, the tide started to turn in 2010. In January of that year, Roberts dismissed about a thousand plaintiffs on the grounds that they failed to properly fill out court-mandated questionnaires. Roberts didn't give the plaintiffs leave to amend, ruling that they were given repeated opportunities to provide specifics about their alleged exposure and damages and failed to do so. "We spend a great deal of time chipping away at those questionnaires," said Stewart.
The Hollingsworth duo's knock-out blow came with last month's summary judgment ruling. They convinced Roberts that the plaintiffs expert, while well-credentialed, had little basis for his opinion that DynCorp used excessive amounts of herbicide, causing both short and long-term health problems. "He had no idea what he was talking about, to be quite honest," Lasker told us. "If he had read the entire label [on the herbicide], he would have understood that the spraying was exactly in compliance."
Lasker and Stewart insist that the plaintiff's claims are bogus. "It would have been nice to get a judgment that, by golly, the spray didn't event drift into Ecuador," admitted Stewart. But she pointed out that DynCorp hasn't won because of some procedural loophole. "This ruling is very substantive," she said. "The plaintiffs did not support, and could not support, their claims," she told us emphatically.
"It's a vindication," Lasker added.