Product Liability

This matter regarded an allegation by plaintiff that defendant’s manufactured potting soils did not meet soil pH specifications. This negligent allegation cost plaintiff the loss of his entire growing operation and business.  The claim was in the realm of $14 million.

Plaintiff orders 25 yards of soil from a well-known and established manufacturer of soils (defendant).  The first load of 25 yards is delivered and plants are installed into the delivered soils.  This process replicates itself for 3 deliveries over a period of 4 months. 

Defendant starts to see problems in his plants including black spots.  Defendant retains a horticultural consultant who cannot identify the problem of the black spots but does note that the soil pH is “somewhat high”. 

 

 

Plaintiff continues to order soils from defendant manufacturer.  Things get worse. The horticultural consultant comes back 3 times to inspect and diagnose the affected of plants.  The horticultural consultant makes two epic recommendations; covering time-released fertilizer with soil for better release and applying a specific type of nutrient to the subject plants.  In sworn testimony plaintiff claims both of these recommendations were followed to the letter.

Plaintiff hires Ph.D. in soil sciences to diagnose problems.  The soil scientist notes that the soil pH is in fact too high thereby causing tie-up of certain nutrients from the soil profile into the plant biology.  The unavailability of these nutrients causes subject plants to become unmarketable.  Soil scientist conducts his own tests at plaintiff’s nursery.  One test group of plants is grown in a soil previously used by plaintiff and the other test group uses defendant soil to grow subject plants.  Test results demonstrate poor soil pH and resultant un-marketability of the subject plants grown in defendant soil while previously used soil grew an acceptable and marketable product.

A claim is filed for approximately $14 million of damage.  The defendant cannot demonstrate or show soil test results when the product left their manufacturing facility.  The defendant can demonstrate the precise addition of different ingredients subject to the defective soil during the manufacturing process.  Much like strictly following the recipe for baking a cake but never having eaten a sample of the finished product before distribution into the marketplace.

No records had been kept at the plaintiff nursery. No pictures of damaged plants had been produced during discovery.  There did exist a handwritten note on an invoice from plaintiff of one of his customers which demonstrated that plant product was not acceptable for resale.  The only records available were of the horticultural products plaintiff had ordered to manage and maintain plants during the claim and deposition testimony of plaintiff.  After 80 hours of reconstructing fertilizer purchases and soil amendments, the following was discovered and presented during defendant’s expert deposition testimony:

  1. Not enough soil had been ordered from the defendant to grow the number of plants claimed in the casualty loss.
  2. According to tax returns of the casualty period, not enough labor hours spiked in line item labor costs to cover the claim that the 2 recommendations from the horticultural expert (to cover time-released fertilizers with soil and apply the particular iron supplement) had been followed or implemented.
  3. There were actually two nursery operations being run by plaintiff under the same roof as the casualty claim. However, separate records had not been kept between the two separate nursery growing operations.  It could not be demonstrated by the plaintiff that alleged defective soil had not been used in both nursery operations.
  4. A product which raises soil pH was noted to have been ordered by the plaintiff with no explanation as to its use and application at plaintiff’s nursery operation. The only purpose for this product is to raise soil pH - the very heart of the claim; high soil pH.
  5. The number of plants claimed as a loss differed from the time period testified to by defendant.
  6. Nutrients which would have been made unavailable by high soil pH were countered by nutrients which would not have been available at the soil pH been correct. A classic fête accompli as the plaintiff was responsible for the specifications of the manufactured soils.
  7. The testing done by the soil scientist at plaintiff’s nursery was left unattended and unobserved for a period of months before soil scientist test results were taken as a conclusion to his opinion.
  8. The matter dramatically turns in defendant’s expert’s deposition on the question, why did plants in the previously used product soil at plaintiff’s nursery perform very well but the same plants did not perform adequately in defendant’s manufactured soils.  A close side-by-side examination of both soils, the soil previously used by plaintiff versus the soils being manufactured by defendant, demonstrated the difference in the composite makeup and manufacturing of the two soils.  The previously used soil by the plaintiff included vermiculite while the defendant’s soil instead used perlite.  Vermiculite has the ability to grasp and hold onto certain electrically charged nutrients while perlite does not.  The question then having been answered leaves plaintiff little room to negotiate the outcome of the matter as plaintiff was responsible for the defendant’s ingredients in the manufactured soil.

This matter settled after depositions.