Defense Win
Thursday, May 9, 2024
by: Betsy Smith, Law Office of Elizabeth G. Smith

Section: Spring 2024




A “Berry” Nice Verdict in Whatcom County
Vicente v. Elenbaas Company
Whatcom County Superior Court
 
A Whatcom County jury hung with Mark Horey and Betsy Smith through holidays, a medical emergency, and numerous unexpected delays from February 6 through February 26, 2024, and returned a “Berry” nice verdict. The case involved raspberry crop damage allegedly caused by herbicides recommended to the plaintiff by Elenbaas’ agronomist in 2016. The negligence claim asserted by plaintiff was dismissed on statute of limitations grounds (suit was not filed until 2020). Plaintiff proceeded on breach of warranty/fitness for a particular purpose. Plaintiff, originally from Guatemala, had been growing raspberries on 30-40 acres in Bellingham since the early 90’s. He testified through a Spanish speaking interpreter, though he was known to speak English. Elenbaas’ instructions to the plaintiff were given in Spanish but written down in English. Plaintiff claimed he misunderstood the instructions and that misunderstanding led to application of the wrong ratio of herbicide to water on his fields.

The case had been set for trial during Covid and continued several times. Between the first trial setting and the actual trial the plaintiff had suffered 2 unrelated strokes and was in a wheelchair. During the second attempt at direct examination by the plaintiff’s attorney the court interpreter interrupted the proceedings and identified a problem with plaintiff’s speech. Turns out the plaintiff was having a medical emergency and court was recessed for a long holiday weekend. On the return the following Tuesday the court denied our Motion for Mistrial, without prejudice to renew it if our cross examination was hampered at all. Plaintiff’s testimony on cross was better than we expected so we did not renew our Motion for Mistrial.

Plaintiff’s case was a parade of local raspberry legendary growers offered as experts. Only one grower was qualified as an expert by the court. The others testified about how “they did it” but did not have any direct knowledge of plaintiff’s practices. Plaintiff had trouble with getting statistical evidence in front of the court because much of the “evidence” was prepared by the paralegal and shown to the experts for the first time during their testimony or they had to admit they had no knowledge of the validity of the data. Plaintiff’s case encompassed 9 court days. The defense used only 1 ½ days The jury deliberated for 1 ½ days. Plaintiff asked the jury for 1.4M in closing and defense asked for a defense verdict. The last defense offer was $250,000 after plaintiff’s medical emergency. The jury returned a verdict for $104,939.  The parties eventually settled for payment and Release and Hold Harmless in the amount of $150,000.