Palmas Y BAMBU, S.A., a Costa Rican company, and Productora de Semillas, S.A., a Costa Rican company, Appellants/Cross-appellees,
v.
E.I. DUPONT DE NEMOURS & COMPANY, INC., a Delaware corporation, Appellee/Cross-appellant.
District Court of Appeal of Florida, Third District.
*568 Podhurst Orseck Josefsberg Eaton Meadow Olin & Perwin and Aaron S. Podhurst; Colson Hicks Eidson and Marc Cooper and Maureen E. Lefebvre; Kozyak Tropin & Throckmorton and Janet L. Humphreys and Harley S. Tropin and Adam M. Moskowitz and Detra P. Shaw-Wilder, for appellants/cross-appellees.
Shook Hardy & Bacon and Edward A. Moss and Thomas M. Sherouse and Daniel B. Rogers; Hicks & Kneale and Mark Hicks and Dinah Stein, for appellee/cross-appellant.
Before SCHWARTZ, C.J., and COPE, and WELLS, JJ.
WELLS, Judge.
Palmas Y Bambu, S.A., and Productora De Semillas, S.A., two Costa Rican plant nurseries, appeal from an order directing a verdict in E.I. DuPont de Nemours, Inc.'s favor on the nurseries' RICO claims in this multi-count action for damages to ornamental plants allegedly caused by use of DuPont's Benlate 50 DF fungicide. DuPont cross-appeals from a $26,450,289 judgment in Palmas' and Productora's favor, claiming that a number of evidentiary errors and use of an adverse inference jury instruction regarding the purported 1992 testing of Benlate in Monte Vista, Costa Rica, mandate reversal. We affirm the directed verdict on Palmas' and Productora's RICO claims because the nurseries failed to establish that their injuries were directly caused by the predicate acts proved below and because they failed to establish the existence of an enterprise distinct from the entity charged with violating Florida's RICO act. Moreover, to the extent that the RICO claims were in actuality claims of improper labeling, the claims are preempted by federal legislation. We also find that the adverse inference instruction given to the jury regarding alleged Benlate testing in Monte Vista, Costa Rica, was erroneous and mandates reversal of the remainder of the judgment against DuPont.
Background
Palmas and Productora maintain that DuPont had knowledge of a defect in its early formulation of the commercial plant fungicide Benlate WP; that DuPont recklessly reformulated Benlate to create Benlate DF, also a defective product; and that after Benlate DF users reported plant damage, DuPont perpetuated a coverup and distributed Benlate DF in Costa Rica by misrepresenting and concealing the defective nature of the product, resulting in substantial damage to their nursery plants. Productora sued DuPont in Miami-Dade County Circuit Court, Case No. 97-18186; Palmas sued DuPont in Miami-Dade County Circuit Court, Case No. 97-18181. Each alleged product defect, negligence, and common law fraud claims. The nurseries also sought treble damages under the Florida RICO (Racketeer Influenced and Corrupt Organization) Act. The cases were consolidated for discovery, then later for trial before the same jury.
Pretrial, the nurseries alleged that in 1992 DuPont conducted secret Benlate tests in Monte Vista, Costa Rica, and that DuPont had destroyed both the plants and test results that established Benlate's defective *569 nature. The nurseries sought to strike DuPont's pleadings, to have DuPont sanctioned for destruction of evidence, and to have an adverse inference jury instruction read to the jury. DuPont vehemently denied that any Benlate testing had taken place at Monte Vista or that any test results existed. Following a number of evidentiary hearings on this matter, the trial court concluded that DuPont had conducted Benlate tests in Monte Vista and had destroyed the results of those tests. Finding that DuPont's denials about the testing and the results had not deceived anyone, the trial court denied the request to strike DuPont's pleadings and decided instead on what it described as the "less draconian sanction" of giving a permissive adverse inference jury instruction. That instruction advised the jury that Benlate testing had occurred at Monte Vista; that "DuPont had the obligation to preserve the evidence from those tests, but nonetheless destroyed the evidence"; and that the jury could, but was not obligated to, infer from these facts that the test results were unfavorable to DuPont.
Following a six-week trial, the jury returned a verdict for the nurseries on all claims. Thereafter, in response to DuPont's motions to set aside the verdict, for new trial, and for remittitur, the trial court set aside the RICO verdict and its trebling of damages. The trial court also decreased the damages awarded to Productora by $110,791, while otherwise rejecting DuPont's post-trial motions to set aside the verdict or grant a new trial. Judgment was entered against DuPont in favor of Palmas in the amount of $12,600,000, and against DuPont in favor of Productora in the amount of $13,850,289. The nurseries appeal from the directed verdict on the RICO claims; DuPont appeals from the $26,450,289 judgments in the nurseries' favor.
I.
The Nurseries' Appeal
The nurseries appeal from the trial court's order directing a verdict on their RICO claims, arguing that the trial court erred in concluding that reliance was an element of a civil RICO claim an element they say they proved. We disagree and affirm the directed verdict not only because the nurseries failed to establish causation, that is, damage flowing from reliance, but also because they failed to prove that the RICO defendant, or person, DuPont was distinct from the RICO enterprise, and because the RICO count, at least in part, is preempted by federal law.
A.
Causation: Damage Flowing From Reliance
The nurseries sought a treble damages award against DuPont in this products liability case under the provisions of section 772.104 of the Florida Statutes. That section provides that "[a]ny person who proves by clear and convincing evidence that he or she has been injured by reason of any violation" of Florida's RICO act, may recover "threefold the actual damages sustained...." § 772.104, Fla. Stat. (2003). Thus, to recover, the nurseries had to prove that they were injured "by reason of" DuPont's alleged criminal activities.
Where, as here, a private party alleges mail or wire frauds as the criminal, or predicate, acts underpinning a civil RICO claim, that party must prove more than the defendant's intentional participation in a scheme to defraud in violation of the federal mail or wire fraud statutes. The claimant must also show that his injury was caused by, that is, his damage was "by reason of," the predicate mail or wire fraud acts. To sustain this burden, reliance *570 on the predicate mail or wire fraud acts must be demonstrated:
When a private plaintiff relies on a violation of the mail or wire fraud statutes as a predicate act for civil RICO, he faces an additional hurdle before he can obtain recovery: he must show not only that the mail or wire fraud statutes have been violated, but also that he has suffered injury as a result of the violation. Section 1964(c)[the federal counterpart of section 772.104 of the Florida Statutes] provides civil remedies to those persons who are injured "by reason of" racketeering activity.... A civil RICO plaintiff must show ... that he was injured by reason of the defendant's acts of deception. As the Supreme Court stated in Sedima [Sedima, S.P.R.L. v. Imrex Co., Inc.,473 U.S. 479 ,105 S.Ct. 3275 ,87 L.Ed.2d 346 (1985)], "the plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation." The Court went on to hold that the plaintiff's damages must "flow from the commission of the predicate acts." Section 1964(c), as interpreted by the Supreme Court and lower courts, thus imposes a proximate cause requirement: the plaintiff's injury must have been proximately caused by the commission of the predicate acts.
There is some question whether the proximate cause requirement limits damages recoverable to those caused directly by the predicate act (e.g., by reliance on fraudulent misrepresentations) or to those caused indirectly by the predicate act (e.g., by purchasing property at a price that has been artificially inflated by a scheme to defraud). We have taken the more restrictive view, holding that a plaintiff has standing to sue under section 1964(c) only if his injury flowed directly from the commission of the predicate acts. This means that, when the alleged predicate act is mail or wire fraud, the plaintiff must have been a target of the scheme to defraud and must have relied to his detriment on misrepresentations made in furtherance of that scheme. See O'Malley v. O'Neill,887 F.2d 1557 , 1563 & n. 9 (11th Cir.1989) ....
Pelletier v. Zweifel,
As this court has confirmed, "indirect injuries, that is injuries sustained not as a direct result of predicate acts ... will not allow recovery under Florida RICO." O'Malley v. St. Thomas Univ., Inc.,
*571 In a civil RICO action predicated upon mail or wire fraud, "[t]he plaintiff has the burden of proving: (1) that the defendant intentionally participated, (2) in a scheme to defraud, (3) the plaintiff of money or property, (4) by means of material misrepresentations, (5) using the mails or wires, (6) and that the plaintiff relied on a misrepresentation made in furtherance of the fraudulent scheme, (7) that such misrepresentation would have been relied upon by a reasonable person, (8) that the plaintiff suffered injury as a result of such reliance, and (9) that the plaintiff incurred a specifiable amount of damages." Sikes v. Teleline, Inc.,
The nurseries based their RICO claims on nine "predicate" acts:
(1) a letter, dated August 11, 1989, from T.R. Vaux, DuPont's Benlate sales manager, to purchasers of Benlate 50 DF, stating that a number of batches of the product were contaminated with low levels of atrazine (Plaintiffs' Exhibit 108);
(2) a letter, dated August 24, 1989, from Ron Hamlen, DuPont's registration specialist, to the EPA, stating that a small portion of the 1989 Benlate 50 DF was contaminated with low levels of atrazine (Plaintiffs' Exhibit 121);
(3) a letter, dated December 27, 1989, from John A. Krol, DuPont's vice president of Ag Products, to all purchasers of Benlate 50 DF, stating that a small portion of Benlate was inadvertently contaminated with atrazine herbicides and had been recalled from the market and that the Benlate currently available was safe to purchase (Plaintiffs' Exhibit 120);
(4) a letter dated April 3, 1991, from Leon J. De Leon to Jaime Gurdian of Abonos Superior, DuPont's distributor, stating that the Benlate 50 DF shipped to Costa Rica was not contaminated (Plaintiffs' Exhibit 90);
(5) a letter dated November 6, 1992, from Thomas C. Humphrey to DuPont customers stating that based on scientific *572 testing, DuPont was not able to cause any crop damage from applications of Benlate and that DuPont had decided to no longer pay claims (Plaintiffs' Exhibit 112);
(6) a letter dated September 26, 1991, from Thomas M. Burke, DuPont's outside litigation counsel to Glen Baldwin, DuPont's in-house counsel stating that from a litigation aspect, it was better to leave as unresolved the cause of various growers' damage (Plaintiffs' Exhibit 89);
(7) DuPont's 1-800 Benlate hot-line assurances from as early as July 1991 until early 1992 that DuPont had been unable to detect a problem with Benlate or reproduce damage in plants (Plaintiffs' Exhibits 59 and 60);
(8) a letter dated July 1993 from Morris Bailey, DuPont's Benlate resolution manager, to one of plaintiffs' representatives stating that based upon DuPont's testing and research, Benlate could not have contributed to the reported plant damage and that DuPont did not see any plant damage in its Benlate tests (Plaintiffs' Exhibit 75);
(9) a nationally covered press conference conducted on June 16th, 1993, by a DuPont employee stating that DuPont's 1992 testing did not reveal any scientific evidence indicating that Benlate was defective (Plaintiffs' Exhibit 36, Defendant's Exhibit 53).
As the trial court noted in its order granting a directed verdict, with one exception (predicate act number 8) relating to a communication which occurred after the nurseries had stopped using Benlate, the jury heard no evidence that the nurseries saw or knew about any of these acts, all but one of which were directed to other persons.[2] The trial court, therefore, correctly found that the nurseries did not submit "any evidence that they relied on any particular predicate act."[3]
*573 In light of our holding in O'Malley that RICO plaintiffs must prove direct injury, not just any injury that may be traced to a predicate act, we reject the nurseries' arguments that they might still recover under a number of alternative (target/third party, fraud-on-the-regulator, and body of public information) theories that allegedly relax the reliance requirement. See Byrne v. Nezhat,
In sum, whether denominated as a lack of standing, a lack of reliance, or a lack of proximate causation, the necessary predicate proof of reliance was missing in this case. A verdict on the nurseries' RICO claim was, therefore, properly directed.[4]
*574 B.
The RICO "Person" And The Distinct RICO "Enterprise"
A verdict was also correctly directed on the nurseries' RICO claims because the nurseries failed to prove the existence of an "enterprise" separate and distinct from the "person" sued for RICO violations. The nurseries sought to recover under section 772.103(3) of the Florida Statutes which makes it "unlawful for any person ... [e]mployed by, or associated with, any enterprise to conduct or participate ... in such enterprise through a pattern of criminal activity...." The words "employed by, or associated with," as used in this provision, anticipates an enterprise separate and distinct from the person charged with a civil RICO violation:
The pertinent section of the statute to be construed states: "It is unlawful for any person employed by or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt." § 895.03(3), Fla. Stat. (1985). The issue before us is whether, within the meaning of section 895.03(3), the defendant can be both the "person" and the "enterprise." Basing our decision on the clear language of section 895.03(3) and on a series of cases which construe that same language in the federal RICO Act, 18 U.S.C.A. § 1962(c) (1984), we find that, given the facts of this case, the defendant cannot be charged with a RICO offense.
... The words "employed by or associated with" logically anticipate the enterprise being a separate entity, different from the person charged.
State v. Nishi,
It is well settled that an entity such as DuPont may be a "person" and also part of an "enterprise." See United States v. Goldin Indus., Inc.,
In this case, the growers sought to impose liability on DuPont as the person which in association with an enterprise comprised of DuPont, its employees, and its outside counsel (Burke) and his firm (Cabiniss & Burke), engaged in a scheme to defraud by use of the mails and wires.[6] Under these facts, no distinctness exists because the distinctness requirement cannot be circumvented by "alleging a RICO enterprise that consists merely of a corporate defendant [person] associated with its own employees or agents carrying on the regular affairs of the defendant":
Because a corporation can only function through its employees and agents, any act of the corporation can be viewed as an act of such an enterprise, and the enterprise is in reality no more than the defendant itself. Thus, where employees of a corporation associate together to commit a pattern of predicate acts in the course of their employment and on behalf of the corporation, the employees in association with the corporation do not form an enterprise distinct from the corporation.
Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A.,
Since no distinction was demonstrated between DuPont as the "person" and DuPont the "enterprise," a verdict was properly directed on the nurseries' civil RICO claims for this reason as well.
C.
Federal Law Preemption
Sub judice, DuPont argued that the majority of the nurseries' claims of mail and wire fraud were barred by FIFRA.[9] The trial court, while acknowledging that in "Florida Benlate cases, ... the Plaintiffs' `failure to warn' type claims *578 are barred by FIFRA," nonetheless rejected DuPont's argument concluding that "FIFRA does not apply extraterritorially" to preempt state claims that allege a failure to warn growers outside of the United States. We do not agree.
Recently, the Fourth District Court of Appeal in E.I. Du Pont De Nemours and Co. v. Aquamar S.A.,
In the face of ... [the] comprehensive sale and labeling regulation, Congress included an express preemption clause in FIFRA, prohibiting any "State" from "impos[ing] or continu[ing] in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter." § 136v(b). This language has been interpreted as prohibiting "any state common law cause of action that rests on an alleged failure to warn or convey information about a product through its label." See In re DuPont-Benlate Litig.,859 F.Supp. 619 , 622 (D.P.R.1994); ISK Biotech Corp. v. Douberly,640 So.2d 85 , 88 (Fla. 1st DCA 1994)(holding that "FIFRA preempts all state common law actions that are associated in any way with a claim of inadequate labeling"); see also Lowe's Home Ctrs., Inc. v. Olin Corp.,313 F.3d 1307 , 1310 (11th Cir.2002).
* * * *
... The ... requirements [of FIFRA] adequately demonstrate Congress's intent to regulate the "labeling" of dangerous pesticides produced in the United States, but exported to foreign markets.
Aquamar argues that the requirements of FIFRA were not intended to bar foreign plaintiffs from asserting claims against United States corporations in state courts for damages caused by the use of pesticides abroad. We agree, of course, that Ecuador is not a "State" and FIFRA's preemption provision could not be read to prohibit the country of Ecuador from imposing additional labeling or warning requirements upon pesticide manufacturers. And, under appropriate jurisdictional circumstances, a foreign plaintiff, relying on foreign law, could probably assert an inadequate warning or "labeling" claim in a state court based on injury arising from the use of a United States-manufactured pesticide abroad. In this case, however, the plaintiff elected to proceed in the State of Florida and under Florida law. Consequently, whether the pesticide at issue was registered for use in the United States and then exported, or simply exported without registration for use in the United States, FIFRA governs the product's label and prohibits the State of Florida from imposing any additional or different requirements.
Id. (second emphasis added).
Thus, to the extent that any claims in the instant action "depend[ed] upon a *579 showing that a pesticide manufacturer's `labeling or packaging' failed to meet a standard `in addition to or different from' FIFRA requirements, section 136v [of FIFRA] preempts those claims."[10]Papas v. Upjohn Co.,
II.
DuPont's Cross-Appeal
Before the trial began, the nurseries filed motions to strike DuPont's pleadings and for sanctions for what they described as DuPont's destruction of evidence. The nurseries argued that, some five years before this action began, DuPont, facing a mountain of product liability claims, "conducted a test in Costa Rica [at Monte Vista] with Benlate and ornamental plants," duplicating conditions as they existed for these Costa Rican nurseries, and when the test results proved disastrous, the plants and test results were destroyed.
As a threshold matter, the trial court found a duty to preserve any such evidence.[11] Finding that DuPont committed no fraud on the court, that there was no pattern of discovery violations, and that the events at Monte Vista constituted at most non-essential secondary evidence, the trial court refused to strike DuPont's pleadings.[12] The court decided instead to *580 give an adverse inference instruction advising the jury that DuPont had performed Benlate testing in Monte Vista, Costa Rica; that DuPont had an obligation to preserve the evidence from that testing, but had nonetheless destroyed the results; and that from these facts, the jury could infer that the test results were unfavorable to DuPont. DuPont maintains that this instruction improperly determined disputed facts for the jury and invaded the province of the jury. We agree.
"The rule is that the court's instructions to the jury must not assume the truth of facts which are controverted, or impose upon either party a duty not shown by the evidence to exist." Bessett v. Hackett,
The order issued in response to the nurseries' motions for sanctions irrefutably demonstrates that the trial judge weighed the credibility of conflicting testimony, and then made factual determinations:
The testimony presented by the witnesses in this case conflicts. This Court, having read the depositions of all witnesses filed in this case, having heard substantial live testimony, having reviewed numerous exhibits consisting primarily of DuPont documents, and having considered all facts bearing on the credibility of those witnesses, finds that the testimony of Leon Vargas [a Costa Rican agronomist which at least one witness characterized as the "father of ornamentals"] is persuasive, and represents the most accurate account of what occurred at the Monte Vista site in Costa Rica in 1992.
(Emphasis added).
The jury instruction evidencing this ruling informed the jury:
The Court has determined that DuPont performed tests using Benlate DF and Benlate WP on ornamental plants at Monte Vista, Costa Rica.... The Court has also determined that DuPont had an obligation to maintain and not destroy the results of those tests. Finally, the Court has also determined that, notwithstanding this obligation, the defendant destroyed the results of those tests. Because of the defendant's improper destruction of those Benlate test results, the Court instructs you that you may infer that the results of those tests were adverse or unfavorable to DuPont. You may consider this adverse inference, together with all the other evidence in the case, in considering the issues before you.
I emphasize maybe because it's not a requirement that you do so.
(Emphasis added).
These judicial fact determinations invaded the province of the jury and constitute reversible error.[13]See Southern Pine Co., *581
Additionally, considering the trial court's account of the circumstances surrounding the Monte Vista evidence and its conclusion that "[p]laintiff has not demonstrated an inability to proceed without [the Monte Vista evidence]," no instruction on the missing Monte Vista evidence would have been appropriate, even if made "contingent" on certain factual determinations by the triers of fact. Rather, the option of applying such an inference should have been limited to the arguments of counsel. See Jordan ex rel. Shealey,
This case is also wholly unlike Public Health Trust of Dade County v. Valcin,
An inference is not a presumption:
A presumption differs from an inference. An inference is a logical deduction of fact that the trier of fact draws from existence of another fact or group of facts. Whether the inferred fact is found to exist will be decided by the trier of fact. A presumption is stronger; it compels the trier of fact to find the presumed fact if it finds certain basic facts to be present. Even if a court finds that a presumption is not present in a particular situation, an inference of the same fact can be drawn if it is supported logically by the evidence.
Charles W. Ehrhardt, Florida Evidence § 301.1, at 89-90 (2003)(footnotes omitted); see also 2 J. Wigmore, Evidence § 285, at 192 (James H. Chadbourn rev., 1979). Unlike a Valcin presumption, an inference generally will not support a jury instruction:
It is important to note that an adverse inference from the failure to produce evidence is different than the Valcin rebuttable presumption. If the actions of the opposing party cause evidence to be lost that is necessary to prove a prima facie case, the Valcin presumption shifts the burden of proof to ensure that a jury decides the issue of negligence. In essence, the Valcin presumption supplies an essential element of the case negligence and shifts to the defendant the burden of proving that he or she was not negligent. The adverse inference merely allows counsel to argue to the jury the inference that the evidence was lost because it was damaging to the opposing party's case. The jury may accept or reject the inference as it sees fit.
6 Florida Practice, Personal Injury & Wrongful Death Actions § 26.6 (2004 ed.)(footnotes omitted); see Bulkmatic Transport Co. v. Taylor,
The adverse inference instruction should not have been given and was harmful to DuPont's defense. This error likewise *583 mandates that the judgment in the nurseries' favor be reversed.[14]
III.
Conclusion
As to the nurseries' claims of error, the trial court's order setting aside the jury verdict entered pursuant to the Florida RICO Act is affirmed. The necessary element of reliance was never proved; a RICO enterprise distinct from a RICO person was never established; and FIFRA applies extraterritorially to these claims. As to DuPont's claims of error, because the trial court's instruction concerning what occurred at Monte Vista invaded the province of the jury, we reverse the judgment in the nurseries' favor.[15]
Affirmed in part, reversed in part, and remanded with instructions.
NOTES
Notes
[1] Because of the similarities between Florida and federal RICO acts, Florida looks to federal authority regarding the interpretation and application of its act. Lugo v. State,
[2] Five of these communications were mailings never sent to, or known of, by the growers. Another was a letter from DuPont's outside counsel to DuPont, which plaintiffs could not claim to have relied on. The seventh was a set of hotline responses, a hotline which plaintiffs never called. The two final communications, only one of which was made to the nurseries, by the nurseries' own time line, came after the nurseries had stopped using Benlate DF.
[3] We reject the notion that the nurseries demonstrated direct reliance on the purportedly fraudulent letter dated April 3, 1991 (predicate act number 4), from DuPont's area manager Leon J. De Leon to Jaime Gurdian, assistant general manager and purchasing manager of Abonos, the company that distributed Benlate DF in Costa Rica. According to De Leon's uncontroverted testimony, the letter was sent to Gurdian in response to a specific question about possible contamination with atrazine. As De Leon explained, "they wanted to know the possibility that these lots [of Benlate held in Costa Rica] were affected." The letter in response to this inquiry, stated:
[i]f your concern is in reference to the possible contamination reported in the United States, let me assure your [sic] that the product received by you is not in that category.
The possible contamination reported is minimal and measures are currently being taken in the domestic market to comply with local regulations related to these cases.
The nurseries do not argue that the representations made in this response were actually untrue or communicated to them. They claim instead that the letter failed to warn that Benlate was phytotoxic resulting in Abonos' continued recommendation and sale of the product and ultimately in the nurseries' injury. However, Gurdian's testimony reflects only his receipt of this letter; there is no testimony that he relied on it or communicated its content to anyone. This cannot be deemed "clear and convincing evidence" of "injury by reason of violation of the provisions of s. 772.103" as mandated by section 772.104. § 772.104, Fla. Stat. (2003). Moreover, this failure to warn, predicate act appears to be pre-empted by federal law. See section C supra.
[4] DuPont did not waive the right to seek a directed verdict for the nurseries' failure to prove reliance (an essential element of their claim) because it agreed to a jury instruction that stated "to find that injury to the plaintiffs' business or property was caused by reason of the violation of the act, you must find that the injury was caused by, and was a direct result of a violation of Section 772.013(3)[sic]." As stated above, when the alleged predicate act is fraudulent misrepresentation, the plaintiff can prove direct causation only by proving detrimental reliance. Sandwich Chef of Texas, Inc.,
[5] Section 895.03(3) is the counterpart to section 772.103(3), which provides for civil remedies for criminal practices. Both of these provisions are patterned after, and are virtually identical to, 18 U.S.C. § 1962(c).
[6] The nurseries claim on appeal that the enterprise consisted of DuPont; nine of its officers, directors, and employees; its attorney, Burke and his firm; Crawford & Company, DuPont's claims investigation agency; Abonos Superior, DuPont's Costa Rican "agent"; and Terra, a company that formulated or mixed Benlate for DuPont. The nurseries' complaint and RICO Case Statement name only DuPont, its officers, directors and employees, and Burke and his firm as the enterprise.
[7] A number of post King cases (King being issued June 11, 2001) support the continued viability of the distinction outlined in Riverwoods. See Lockheed Martin Corp. v. Boeing Co.,
[8] While the trial court correctly recognized that a "person" for RICO purposes may also be one of a number of members of an "enterprise," it misconstrued Jacobson v. Cooper,
[9] The Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") provides a comprehensive scheme for pesticide labeling generally making it unlawful for American manufacturers to sell an unregistered pesticide within the United States. 7 U.S.C.A. §§ 136-136y (1999). "[A] manufacturer in the United States may sell or distribute an unregistered pesticide to a foreign country provided it complies with specified labeling requirements and provides a statement to the foreign country indicating that the product is not registered for use in the United States. 7 U.S.C.A. § 136o(a); 40 C.F.R. § 168.65." Aquamar S.A.,
[10] It will be for the trial court on remand to determine what claims, if any, (and of course, other than the precluded RICO claims), the nurseries may maintain. See, e.g., Schuver v. E.I. DuPont de Nemours & Co.,
[11] The trial court concluded that DuPont had a duty to preserve the Monte Vista evidence based on its knowledge of the flurry of litigation surrounding Benlate DF. DuPont argues that "[p]hotographs, videotape and testimony from direct observation were preserved and available" and that it was under "no duty ... to preserve dead or diseased plants." We will assume for the sake of the instant discussion that considering the facts before it, the trial court correctly determined a duty was owed. See Silhan v. Allstate Ins. Co.,
[12] The court noted that while the nurseries would never be able to examine the Monte Vista evidence, "[p]laintiff has not demonstrated an inability to proceed without it" and that "DuPont did not destroy the actual Benlate Plaintiff used, the formula for Benlate 50 DF, or any such similar piece of critical evidence. Plaintiff has shown at best that DuPont destroyed one of many pieces of evidence relevant to the Benlate crisis. Simply stated, there is no single piece of essential physical evidence in this case."
[13] Compare with the following adverse inference instructions (either given or proposed in similar circumstances) and with at least one Florida standard jury instruction:
(1) The Plaintiff claims that the railroad failed to maintain inspection and maintenance records from the train cars involved in the accident. If you find that: (1) the records at issue would be relevant to the claims made by the plaintiff; (2) that the records were destroyed; and (3) by the time the records were destroyed, the railroad knew or reasonably should have known they would be relevant in litigation that was reasonably foreseeable, then you may infer that the contents of these destroyed records would be harmful to the railroad's position in this case. You need not draw this inference; I merely instruct you that you may.
Pace v. Nat'l R. Passenger Corp.,
(2) You have heard testimony about evidence which has not been produced. Counsel for Plaintiffs have argued that this evidence was in Defendant's control and would have proven facts material to the matter in controversy.
If you find the Defendant could have produced the evidence, and that the evidence was within his control, and that this evidence would have been material in deciding among the facts in dispute in this case, then you are permitted, but not required, to infer that the evidence would have been unfavorable to the Defendant.
In deciding whether to draw this inference, you should consider whether the evidence not produced would merely have duplicated another evidence already before you. You may also consider whether the Defendant had a reason for not producing this evidence, which was explained to your satisfaction. Again, any inference you decide to draw should be based on all of the facts and circumstances in this case.
Gilbert v. Cosco Inc.,
(3) If you find that the circumstances of the occurrence were such that, in the ordinary course of events, it would not have happened in the absence of negligence, *[and that the instrumentality causing an injury was in the exclusive control of the defendant at the time it caused the injury,] or * [that the instrumentality causing an injury was in the exclusive control of the defendant at the time the negligent act or omission, if any, must have occurred and that the instrumentality, after leaving the defendant's control, was not improperly used or handled by others or subjected to harmful forces or conditions,] you may infer that the defendant was negligent unless, taking into consideration all of the evidence in the case, you conclude that the occurrence was not due to any negligence on the part of the defendant.
Florida Standard Jury Instruction (Civil) 4.6 (the res ipsa loquitur instruction)(emphasis added).
[14] In light of this opinion, the trial on remand will differ significantly from that presented below. At bottom, we perceive this case to be a products liability action. Thus, it will be for the trial court to decide what evidentiary rulings are appropriate considering the claims before it, keeping in mind that it would be error to allow any argument or instruction to result in an injustice to either party, or to become a feature of the trial. See Emerson Elec. Co. v. Garcia,
[T]he destroyed evidence must be relevant to the issue or matter for which the party seeks the inference. For example, the spoliation of a machine may raise an adverse inference with respect to a claim that that particular machine was defective, but such an inference may not be drawn with respect to a claim based upon design defect when the destruction would not hinder the defense. See Donohoe v. American Isuzu Motors, Inc.,
[15] DuPont maintains that the damages awarded plaintiffs, two modest-sized Costa Rican growers, were erroneous as a matter of law. Although we need not reach this issue, we note that it is virtually impossible to reconcile the record with the damages awarded. We therefore note for re-trial that:
In Florida, "[t]he objective in calculating the proper measure of damages is to place the plaintiff in the same financial position as that occupied before the property was damaged." Ocean Elec. Co. v. Hughes Labs., Inc.,
Nat'l R.R Passenger Corp. (Amtrak) v. Rountree Transp. & Rigging, Inc.,
We also caution that while a business can recover lost prospective profits regardless of whether it is established or has any track record, such profits must be established with a reasonable degree of certainty. See Sostchin v. Doll Enterprises, Inc.,