Nutrien Ag Solutions, Inc., formerly known as Crop Production Services Inc., filed a petition in the Supreme Court of Texas last week asking them to review an Amarillo, Texas Seventh Court of Appeals decision in a case. Nutrien claimed the injuries were not its fault under Texas law and that the appeals court erred in its decisions.
The lawsuit was initiated by Peter and Martha Balderas, for themselves and on behalf of their deceased children, as well as other injured children. They sought damages and awards for the deaths and injuries caused to family members after Peter Balderas used a “restricted use pesticide” under the family’s home.
The petition argued that the court of appeals “abused its discretion” by declining the Interlocutory Appeal of two district court orders from July 6, 2020, although it did approve the appeal by Nutrien’s co-defendant. It also claimed that Nutrien had grounds to challenge the decision because the plaintiffs did not give evidence of negligence and the company did not have a duty to “train or supervise” Hereford Grain, the company that bought the product. Specifically, the petition said the issues it includes are important to Texas jurisprudence, because the state rejects liability theories based on probability and does require businesses to monitor third parties.
Nutrien argued that their action would advance the ultimate end of the litigation. The company asked the court to remand the case to the court of appeals and ask that court to grant the appeal or to grant its petition and address the questions of law presented in the case. It argued that if the trial court’s orders were allowed to stand, as the appeals court had decided, it would “allow the jury to engage in probabilistic determinations” and “impose a duty on retailers and manufacturers to monitor all of their customers’ behavior to ensure that the customers act lawfully.”
The pesticide involved in the suit is Weevil-Cide, specifically pellets from Batch 18 shipped to the United States from India and distributed during 2009 and 2010. Nutrien said that it tracked every canister iof the batch and all of the ones that passed through its location in Hereford, Texas were sold to Hereford Grain Corporation. The plaintiff reportedly placed one of the Weevil-Cide canisters under his home to kill rodents, which led to the death of four of his children.
According to the filing, Balderas has given varied accounts of where he received the substance, so law enforcement has been unable to determine where it was obtained. In the investigation, law enforcement determined that Nutrien was the only company that had records of the batch and Hereford Grain complied with the rules for restricted-use pesticides. Thus, the Texas Department of Agriculture charged Balderas with “illegally obtaining, applying, storing, and disposing of Weevil-Cide,” and gave him a $10,000 penalty. None of the other parties received a charge.
The petitioners are represented by Bryan Cave Leighton Paisner, LLP and Young & Newsom, PC. The respondents are represented by Puls Haney Lyster PLLC; Lovell, Lovell, Isern & Farabough, LLP; and Griffith, Jay & Michel, LLP.