Case 2:20-cv-01221-DLR Document 1 Filed 06/18/20 Page 1 of 24
`
`Jonathon A. Talcott (030155)
`talcottj@ballardspahr.com
`BALLARD SPAHR LLP
`1 East Washington Street, Suite 2300
`Phoenix, AZ 85004-2555
`Telephone: 602.798.5400
`Facsimile: 602.798.5595
`Karla M. Vehrs (Pro Hac Vice Forthcoming)
`vehrsk@ballardspahr.com
`Conor H.M. Smith (Pro Hac Vice Forthcoming)
`smithchm@ballardspahr.com
`BALLARD SPAHR LLP
`2000 IDS Center
`80 South 8th Street
`Minneapolis, MN 55402-2119
`Telephone: 612.371.3211
`Facsimile: 612.371.3207
`Attorneys for Plaintiff Calyxt, Inc.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`No.___________________
`
`Calyxt, Inc.,
`
`Plaintiff,
`vs.
`Morris Ag Air & Sons, Inc.; Morris Ag Air
`Southwest, LLC; Amigo Farms, Inc.;
`Jeffrey Nigh, an individual; Tri-Rotor,
`L.L.C.; Tri-Rotor Ag Services, Inc.;
`Jonhenry Luke, an individual; and
`D’Arrigo Brothers Company,
`Defendants.
`
`COMPLAINT
`
`DEMAND FOR JURY TRIAL
`
`Plaintiff Calyxt, Inc. (“Calyxt”) hereby pleads the following claims against
`Defendants for strict liability, negligent trespass, negligence per se, and private nuisance
`arising under Arizona common law, and for violations of Arizona Revised Statutes
`§§ 3-114 and 3-367. These claims arise from Defendants’ unlawful actions relating to the
`aerial application of certain chemicals that caused extensive damage to Calyxt’s high fiber
`wheat crops growing for research and commercial development purposes on two fields in
`or near Yuma, Arizona. For its Complaint, Calyxt alleges as follows:
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`Case 2:20-cv-01221-DLR Document 1 Filed 06/18/20 Page 2 of 24
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`NATURE OF THE ACTION
`This is an agricultural dispute arising under Arizona statutory and common
`1.
`law. It is based on the unlawful acts of aerial applicators, their pest control advisors, and
`produce growers who recklessly undertook the aerial application of chemical herbicides
`near fields where Calyxt was growing highly valuable wheat crops susceptible to those
`herbicides.
`Due to weather, aerial application, proximity, and/or other adverse
`2.
`conditions about which Defendants knew or should have known, Defendants’ herbicides
`that were intended to be applied to Defendants’ leaf lettuce crops drifted onto Calyxt’s
`fields. These actions caused extensive damage to Calyxt’s innovative, high fiber wheat
`crop—a result that was entirely foreseeable to Defendants because wheat is a type of grass,
`and the chemical they applied is specifically intended to kill grasses. Accordingly, as
`alleged herein, Defendants are individually, jointly, and severally liable to Calyxt for these
`actions in violation of Arizona law.
`THE PARTIES
`
`Plaintiff Calyxt, Inc.
`A.
`Plaintiff Calyxt, Inc. (“Calyxt”) is an agriculture technology company
`3.
`focused on delivering plant-based solutions that are healthy and sustainable using
`proprietary gene-editing technology. Calyxt is a Delaware corporation with its principal
`place of business located at 2800 Mount Ridge Rd., Roseville, MN 55113.
`B.
`The Morris Defendants
`4.
`Defendant Morris Ag Air Southwest, LLC (“Morris Ag Air Southwest”) is
`an aerial applicator of agricultural pesticides and is organized as a limited liability company
`under the laws of the State of Arizona, with its principal place of business located at 6277
`W County 12th Street, Yuma, AZ 85365. Miles Morris is the only member of Morris Ag
`Air Southwest and, on information and belief, is an Arizona citizen with a permanent
`residence located at 340 W 32nd Street #413, Yuma, AZ 85364.
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`Case 2:20-cv-01221-DLR Document 1 Filed 06/18/20 Page 3 of 24
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`Defendant Morris Ag Air & Sons, Inc. (“Morris Ag Air & Sons”) is also an
`5.
`aerial applicator, and an Arizona corporation sharing the same principal place of business
`as Morris Ag Air Southwest, LLC, located at 6277 W County 12th Street, Yuma, AZ
`85365.
`On information and belief, Defendants Morris Ag Air Southwest and Morris
`6.
`Ag Air & Sons (collectively, “Morris Ag Air”) are alter egos and agents of each other,
`acting on each other’s behalf with a unity of interest and ownership, such that observance
`of their separate corporate forms would promote injustice. As such, the Morris Ag Air
`defendants are jointly, severally, and vicariously liable for each other’s actions and for the
`claims against them as alleged herein. Miles Morris is the statutory agent for both of these
`companies, he is the sole member of Morris Ag Air Southwest, and, on information and
`belief, his close relatives, Michael and Michelle Morris, are the officers and directors of
`Morris Ag Air & Sons. Defendants Morris Ag Air Southwest and Morris Ag Air & Sons
`also share a common address for their principal places of business.
`7.
`Defendant Amigo Farms, Inc. (“Amigo Farms”) is a grower of agricultural
`produce and is an Arizona corporation with its principal place of business located at 4245
`East 32nd Street, Yuma, AZ 85365. On information and belief, Amigo Farms leases and
`grows crops on fields located in and near Yuma, Arizona.
`8.
`Defendant Jeffrey Nigh (“Nigh”) is an individual who is a Pest Control
`Advisor (“PCA”) with Arizona PCA License No. 3464. On information and belief, at all
`relevant times, Nigh is and has been a citizen of Arizona, with a permanent residence in or
`near Yuma, AZ.
`9.
`Collectively, Morris Ag Air, Amigo Farms, and Nigh shall be referred to
`herein as the “Morris Defendants.”
`C.
`The Tri-Rotor Defendants
`10.
`Defendant Tri-Rotor, L.L.C. (“Tri-Rotor, L.L.C.”) is an aerial applicator of
`pesticides, organized as a limited liability company under the laws of the State of Arizona,
`with its principal place of business located at 18679 South Avenue D, Somerton, AZ 85350.
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`Case 2:20-cv-01221-DLR Document 1 Filed 06/18/20 Page 4 of 24
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`Defendant Tri-Rotor Ag Services, Inc. (“Tri-Rotor Ag Services”) is an aerial
`11.
`applicator and Arizona corporation sharing the same principal place of business as Tri-
`Rotor, L.L.C., located at 18679 South Avenue D, Somerton, AZ 85350.
`12.
`On information and belief, Defendants Tri-Rotor, L.L.C. and Tri-Rotor Ag
`Services (collectively, “Tri-Rotor”) are alter egos and agents of each other, acting on each
`other’s behalf with a unity of interest and ownership, such that observance of their separate
`corporate forms would promote injustice. As such, the Tri-Rotor defendants are jointly,
`severally, and vicariously liable for each other’s actions and for the claims against them as
`alleged herein. Matt Fieldgrove is the statutory agent for both of these companies and a
`director at Tri-Rotor Ag Services, which is the sole member of Tri-Rotor L.L.C. The
`businesses also share a common address for their principal places of business.
`13.
`Defendant D’Arrigo Brothers Company of California (“D’Arrigo Brothers”)
`is a grower of agricultural produce and is a California corporation with a principal place of
`business located at 21777 Harris Road, Salinas, CA 93908. On information and belief,
`D’Arrigo Brothers leases and grows crops on fields located in and near Yuma, Arizona.
`14.
`Defendant Jonhenry Luke (“Luke”) is an individual who is a Pesticide
`Control Advisor with Arizona PCA License No. 3773. On information and belief, at all
`relevant times, Luke is and has been a citizen of Arizona with a permanent residence in or
`near Yuma, AZ.
`15.
`Collectively, Tri-Rotor, D’Arrigo Brothers, and Luke shall be referred to
`herein as the “Tri-Rotor Defendants.”
`JURISDICTION AND VENUE
`This is a civil action regarding Defendants’ unlawful actions relating to the
`16.
`aerial application of chemical herbicides that drifted onto fields where Calyxt was growing
`high fiber wheat crops. This action arises under Arizona statutory and common laws
`created to protect innocent parties against the inherently dangerous aerial application of
`such chemical herbicides.
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`Complete diversity exists between Calyxt and Defendants. As set forth above
`17.
`in Paragraphs 4-15, none of the Defendants are citizens of Delaware or Minnesota.
`Pursuant to 28 U.S.C. § 1332(c)(1), Calyxt is a citizen of Delaware, where it is
`incorporated, and Minnesota, where its principal place of business is located. The Morris
`Defendants are all citizens of Arizona. Except for D’Arrigo Brothers, which is a citizen of
`California, the Tri-Rotor Defendants are all citizens of Arizona. The amount in controversy
`far exceeds $75,000.00, exclusive of interest and costs. Thus, the Court has subject matter
`jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)(1).
`18.
`The Court has personal jurisdiction over Defendants pursuant to the Due
`Process Clause of the United States Constitution and pursuant to Arizona’s long-arm
`statute, ARIZ. R. CIV. P. 4.2(a), as follows.
`19.
`The Court has general personal jurisdiction over Defendants because, on
`information and belief, Defendants have conducted substantial and continuous business in,
`and have substantial and continuous contact with, the District of Arizona. Among other
`things, Defendants conduct regular agricultural-related business within Arizona and, in
`particular, in and around Yuma, Arizona. All of the Defendants are citizens of Arizona
`except for D’Arrigo Brothers, which is a citizen of California. On information and belief,
`D’Arrigo Brothers also conducts substantial agricultural business in Arizona, including in
`Yuma.
`The Court also has specific personal jurisdiction over Defendants. As alleged
`20.
`herein, each of the Defendants has undertaken actions relating to farmland that they owned,
`operated, and/or sprayed with chemical herbicides that drifted onto the two Calyxt fields
`located in Yuma, Arizona, resulting in the destruction of significant portions of Calyxt’s
`valuable high fiber wheat crops. These acts give rise to Calyxt’s claims.
`21.
`Venue is also proper in this judicial district pursuant to 28 U.S.C.
`§ 1391(b)(2). A substantial part of the acts and events giving rise to Calyxt’s claims
`occurred in this judicial district, and the property damaged as a result of those acts is located
`in this judicial district.
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`Case 2:20-cv-01221-DLR Document 1 Filed 06/18/20 Page 6 of 24
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`FACTUAL BACKGROUND
`Background on Plaintiff Calyxt and the Gene-Edited Food Industry
`A.
`The food industry recently has experienced unprecedented growth in demand
`22.
`from consumers for products that support healthier eating, improved traceability and global
`sustainability. These demands for sourcing, transparency, traceability, environmental
`impact, and climate impact data have in turn contributed to a rapidly expanding market for
`nutritionally enhanced plant-based food products.
`23.
`Calyxt is a leading agricultural technology company that delivers products
`that satisfy the aforementioned unique consumer demands. Founded in 2010 and
`headquartered in Roseville, Minnesota, Calyxt specializes in delivering plant-based
`solutions that are healthy and sustainable. Using its proprietary technologies and expertise,
`including its exclusively licensed in the field of plants transcription activator-like effector
`nuclease (TALEN®) gene-editing technology, Calyxt develops crops with targeted traits
`more quickly and cost effectively than through traditional methods.
`24.
`Among other advantages, Calyxt’s proprietary technologies and intellectual
`property enable it to edit the plant genome by knocking out genes or making precise gene
`edits. Calyxt leverages its expertise in plant gene function to identify and select beneficial
`genetic variations that improve nutritional and other traits of value.
`25.
`An uninterrupted product development process is critical to the success of
`Calyxt’s highly specialized products. Generally, Calyxt’s product development cycle
`includes ideation, discovery, and three development phases before a product is
`commercialized. The following image at the top of the next page illustrates key activities
`in Calyxt’s product development cycle:
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`Ideation, Discovery and Phase 1 may take several years and begin with an
`26.
`idea. Calyxt identifies the type of plant product (e.g., soybean, wheat, or alfalfa), the
`desired beneficial traits, and the specific genes to edit. Once the target plant and editing are
`determined, Calyxt edits the plant cells in the laboratory. Ultimately, initial sets of plants
`are grown in a greenhouse to create additional seeds. Calyxt also undertakes the resource-
`intensive process of submitting information to the U.S. Department of Agriculture
`(“USDA”) to determine whether its product will be subject to USDA regulation.
`27.
`During Phase 2, Calyxt plants its initial sets of gene-edited seeds in the field
`to grow additional plants. In turn, these plants create additional seeds that Calyxt continues
`to subject to ongoing plant breeding techniques in an effort to focus and improve their
`traits. Plant breeding is similar to a funnel or screening process. Calyxt begins with a large
`number of plant or seed varieties, then narrows that number during the selection process to
`identify and select for optimal characteristics, including nutritional properties, utility for
`different applications, ability to withstand disease and pest pressures, and yield. During
`this breeding process, Calyxt must generate enough viable seeds of whichever variety it
`determines has optimal traits for marketing and commercializing. At this stage, Calyxt
`must have sufficient viable seeds to plant field trials needed for submitting data to the U.S.
`Food and Drug Administration (“FDA”) as part of Calyxt’s consultation with FDA for the
`product’s use in food and feed (Phase 3).
`includes
`28.
`Phase 3 of the gene-edited product development process
`successfully completing consultation with the FDA, developing the first commercial-scale
`pilot production, and performing final testing prior to commercialization.
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`The final stage is commercialization, where the product is commercially
`29.
`planted by farmers and the resulting crop is used for food and/or feed.
`30.
`Calyxt has already demonstrated success using the foregoing process. In
`early 2019, Calyxt brought to market a high oleic soybean oil product that delivers superior
`nutritional and functional benefits, including zero trans-fat per serving and 20% reduced
`saturated fat. This premium oil is a healthier alternative to standard vegetable oils used for
`fried food and in other cooking. Calyxt’s high oleic soybean was the first gene-edited food
`product commercialized in the United States.
`B.
`Calyxt’s High Fiber Wheat Project and the Yuma Fields
`31. Wheat is a type of grass and is the third largest commodity crop in the United
`States. In 2019 alone, the U.S. marketplace for wheat was estimated to be $8.6 billion
`dollars. Fiber is a key nutritional attribute of wheat, because fiber is the indigestible portion
`of food that is essential for maintaining healthy digestion. In recent years, consumers have
`grown increasingly mindful of the health benefits of high fiber diets, including the
`important role it can play in preventing chronic health conditions. This has translated to a
`strong growth in demand for high fiber food products.
`32.
`In 2015, leveraging its innovative TALEN® gene-editing technology, Calyxt
`began developing a groundbreaking high fiber wheat product. Superior to other wheat
`products, Calyxt’s high fiber wheat can be used to produce white flour with up to three
`times more dietary fiber than standard white flour (a 10% increase in nutritional daily
`value), all while maintaining the same flavor and convenience of use (hereafter, the “High
`Fiber Wheat” or “HFW” product or project).
`33.
`Calyxt completed Phase 1 of the development process for its HFW product
`in approximately March 2018, which is when it received confirmation from the USDA that
`the USDA deemed its HFW non-regulated. Confirmation that Calyxt’s HFW product is
`deemed non-regulated by the USDA paved the way for Calyxt to conduct field trials (as
`opposed to in the laboratory) and continue optimizing its product for commercialization.
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`Beginning in spring 2018 and continuing through fall harvest of 2019, Calyxt
`34.
`grew small quantities of seeds in Calyxt’s greenhouse and in test plots at the University of
`Minnesota. Test plots are small in-field plantings for evaluation purposes. The quantity of
`seed is multiplied each growing cycle as the plants produce seeds.
`35.
`In October 2019, Calyxt continued to progress in Phase 2 of its HFW product
`development by planting field trials of increasing size. Calyxt planned for HFW seed
`harvested from the October 2019 planting to be used in field trials to generate data for
`submission to FDA.
`36.
`Because of the area’s superior climate and growing conditions, Calyxt chose
`to plant its HFW seeds in the area of Yuma, Arizona. Calyxt engaged an experienced crop
`research organization called Second Nature Research, LLC (“SNR”) to identify suitable
`fields in the Yuma area. SNR selected two fields in Somerton, Arizona, which are located
`and identified, respectively, as follows:
`(1) South of the intersection of County Road 19 and Avenue G with Township,
`Range and Section coordinates of T10S R24W S21 (“Field 1”); and
`(2) 11492 South Avenue D with Township, Range and Section coordinates of T09S
`R24W S12 (“Field 2”).
`SNR initially planted 497 lines of Calyxt’s HFW seeds on Field 1 and 200
`37.
`lines of its HFW seeds on Field 2. Each “line” of Field 1 contained forty-five seeds (three-
`row plots of fifteen seeds each), while each line of Field 2 contained fifteen seeds (one-
`row plots of fifteen seeds each). Thus, the total number of Calyxt’s HFW seeds initially
`planted in the Yuma area was 25,365 (22,365 in Field 1 and 3,000 in Field 2). Each of the
`697 lines of seeds planted is unique, reflecting slight variations in genetic makeup and
`expressed traits.
`and
`development milestones
`its
`achieve
`to
`ability
`38.
`Calyxt’s
`commercialization of its HFW products depends on obtaining enough seeds from among
`the many different lines in this planting. This is because Calyxt’s product development
`cycle requires it to assess the attributes of each line and to continue to narrow its focus to
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`those lines exhibiting the most desirable qualities. This uninterrupted optimization process
`is crucial to the success of Calyxt’s gene-edited products, including the HFW products.
`39.
`As of early November 2019, all aspects of the HFW project were on track,
`and the HFW plants in Yuma were just beginning to emerge from the soil as expected.
`40.
`In April 2020, Calyxt harvested the remnants of the 697 lines of HFW plants
`that were allowed to grow out.
`41.
`As of the date of filing this Complaint, Calyxt has confirmed that, as a result
`of chemical herbicide damage, the yield from the HFW plants was severely reduced, with
`some seed varieties completely destroyed, and others severely reduced.
`C.
`Defendants’ Improper Application of Herbicides in November 2019
`42.
`Defendants Morris Ag Air and Tri-Rotor (collectively, the “Applicator
`Defendants”) are each what is known in the agricultural industry as an “aerial applicator.”
`An aerial applicator sprays chemicals from an airplane flying at low altitudes over a farm
`field. These chemicals are formulated for the very purpose of killing unwanted pests and
`plants that could otherwise threaten the crops growing in the field. The chemicals are
`known as pesticides.
`43.
`Arizona law defines “pesticides” as “any substance or mixture of substances
`intended to be used for defoliating plants or for preventing, destroying, repelling or
`mitigating insects, fungi, bacteria, weeds, rodents, predatory animals or any form of plant
`or animal life which is, or which the director may declare to be, a pest which may infest or
`be detrimental to vegetation, humans, animals, or households or which may be present in
`any environment.” A.R.S. § 3-341(20). A herbicide is a substance that is toxic to plants
`and used to destroy unwanted vegetation. Thus, “pesticides” under Arizona law and as
`referenced herein include herbicides as a type of pesticide.
`44.
`Defendants Amigo Farms and D’Arrigo Brothers (collectively, the “Grower
`Defendants”) grow leaf lettuce on fields adjacent to the fields in which the Calyxt HFW
`was growing. Upon information and belief, the Grower Defendants hired, contracted with,
`or otherwise engaged the Applicator Defendants to spray their respective fields with
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`pesticides in order to prevent the growth of unwanted grasses. See Ariz. Admin. Code R3-
`3-101 (definition of “Regulated Grower”).
`45.
`Either alone or acting in concert with the Applicator Defendants, the Grower
`Defendants hired, contracted with, or otherwise engaged agricultural pest control advisors,
`Nigh and Luke (collectively, the “PCA Defendants”). The PCA Defendants then actively
`participated in advising and providing instructions to the Grower Defendants and/or
`Applicator Defendants regarding the selection, control, and application of the pesticides.
`See Ariz. Admin. Code R3-3-101 (definition of “PCA”).
`46.
`Aerial application of pesticides is an inherently dangerous activity. Pesticides
`are by their nature intended to be lethal to insects and plants. They are comprised of
`dangerous chemicals that pose grave risks to the health and safety of animals, humans, and
`plants. For this reason, pesticides are heavily regulated by both federal and state law, which
`among other things require their labels to contain extensive warnings regarding their
`hazards and corresponding use restrictions.
`47.
`Spraying these dangerous chemicals into the air using a low-flying airplane
`serves only to exacerbate the risks. Among other risks, the aerial application of pesticides
`can lead to “drift” (or overspray), whereby pesticides intended to be sprayed onto a target
`location drift away from that location and onto off-target locations, thereby threatening the
`lives of plants, people, animals, and property located there. Drift can occur either during
`pesticide application, or after the application, when certain chemicals become vapors that
`can move off-site.
`48.
`Some factors that may affect the risks posed by aerial pesticide application
`include, among other things, the addition of thickening agents (also known as drift
`mitigation adjuvants), changes in applicator nozzle configurations or settings, local
`weather conditions, choice of flight path, and time of day.
`49.
`Due to the inherent dangers posed by aerial pesticide application, courts hold
`the target field’s grower vicariously liable for damage resulting from the aerial application
`of pesticides on the grower’s field. These courts reason that growers should not be able to
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`escape liability by outsourcing such extra-hazardous work on their land, even to
`independent contractors, because of the very high likelihood and well-known risks that
`toxic pesticides will drift to adjoining or nearby premises and damage valuable property
`located on it.
`50.
`Those inherent dangers have led the United States Environmental Protection
`Agency (“EPA”) to strictly regulate pesticides, and particularly their labeling. The EPA’s
`Label Review Manual, for example, states that “Pesticide product labels provide critical
`information about how to safely and legally handle and apply pesticides. . . . A critical
`function of the label is to translate the results of the science evaluations into a set of
`conditions, direction, precautions, and restrictions that define who may use a pesticide, as
`well as where, how, how much, and how often it may be used.” EPA regulations further
`provide that “[i]t is a violation of Federal law to use [pesticides] in a manner inconsistent
`with [their] labeling.” 40 CFR § 156.10(i)(h)(iii)(4)(C)(2)(ii).
`51.
`Additionally, because of the severe safety risks and potential damage posed
`by pesticide application, Arizona has joined other states in heavily regulating them and
`allocating the risk of loss to the parties involved in selecting and applying the pesticides.
`For example, Arizona requires growers, pesticide applicators, and agricultural pest control
`advisors (PCAs) to register pesticides and to meet stringent licensing requirements before
`using, selling, or applying pesticides. Arizona also imposes strict fines for using or
`instructing another to apply pesticides in a manner that is inconsistent with their labeling,
`allows drift onto neighboring fields, or that otherwise causes adverse effects to property,
`persons, and animals. See generally, e.g., A.R.S. Title 3, Chapter 2, Articles 5-6; Ariz.
`Admin. Code Title 3, Articles 1-5.
`52.
`To comply with safety application restrictions, PCAs and growers are
`required to provide a “Form 1080” to aerial applicators, which provides information and
`instructions for spraying their fields with pesticides. After completing the aerial
`application, the applicator must also sign the Form 1080 and report it to the Arizona
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`Department of Agriculture. See, e.g., Ariz. Admin. Code Rules R3-3-301, R3-3-302, R-3-
`404.
`
`On or about November 21, 2019, Morris Ag Air aerially applied pesticides
`53.
`to a field located near Field 1 where Calyxt’s HFW plants were growing. The applicable
`Form 1080 providing details concerning this aerial application is attached to this Complaint
`as Exhibit A (hereafter, the “Morris 1080”).
`54.
`As the Morris 1080 states, Morris Ag Air sprayed a field located at Site ID
`Y-9-2, on which grower Amigo Farms was growing “lettuce leaf.” Among other chemicals,
`Morris Ag Air sprayed the Amigo Farms field with a pesticide branded Select Max®,
`whose active ingredient is Clethodim.
`55.
`Clethodim is a pesticide that is formulated to target and selectively kill
`grasses, including wheat, while at the same time it is non-toxic to lettuce leaf. As the EPA-
`mandated product labeling and other documentation for the Select Max® product warns,
`Select Max® poses significant risks to adjacent land and crops. Applicators of this pesticide
`are required to take extraordinary precautions to avoid drift: specifically to do “everything
`possible” to reduce spray drift and not to apply it “under conditions involving possible drift
`to food, forage or other plantings that might be damaged or the crops thereof rendered unfit
`for sale, use or consumption.”
`The product label for Select Max®, attached to this Complaint as Exhibit B
`56.
`(hereafter the “Select Max Label”), specifically states:
`• Do not allow spray from ground or aerial equipment to drift onto
`adjacent land or crops. When drift may be a problem, do everything
`possible to reduce spray drift, including:
`• Do not apply when conditions are favorable for drift (high
`temperatures, drought and low relative humidity), especially when
`sensitive plants are located nearby.
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`Case 2:20-cv-01221-DLR Document 1 Filed 06/18/20 Page 14 of 24
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`• Do not spray if wind speed is 10 mph or greater. If sensitive crops
`or plants are downwind, extreme caution must be used under all
`conditions.
`• Do not spray if winds are gusty.
`• Do not apply when a temperature inversion exists. If inversion
`conditions are suspected, consult with local weather services before
`making an application.
`• Do not allow Select Max Herbicide with Inside Technology to come
`in contact with desirable grass crops such as corn, rice, small grains,
`sorghum or turf, as these and other grass crops will be injured or
`killed.
`On information and belief, the Morris Defendants did not exercise reasonable
`57.
`care when applying Select Max® to the Amigo Farms field on November 21, 2019. Among
`other improper actions, on information and belief, the Morris Defendants did not select or
`provide proper advice concerning an appropriate pesticide or chemical mix; did not add
`proper thickening agents to the pesticide chemical being sprayed; made improper changes
`to the applicator nozzle configurations or settings; failed to investigate neighboring fields
`and susceptible crops located thereon; did not have the proper spotters for identifying
`nearby hazards; disregarded local weather conditions (e.g., a temperature inversion); and/or
`undertook an improper flight path and inappropriate time of day to apply the pesticide.
`58.
`Under these conditions, the Morris Defendants knew or should have known
`that there was a significant risk that Select Max® (and Clethodim) would drift onto Field
`1 and cause damage to the Calyxt HFW. The Morris Defendants applied Select Max®
`despite this risk.
`59.
`On or about November 27, 2019, Tri-Rotor aerially applied pesticides to a
`field located near Field 2 where Calyxt’s HFW plants were growing. The applicable Form
`1080 providing details concerning this aerial application is attached to this Complaint as
`Exhibit C (hereafter, the “Tri-Rotor 1080”).
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`Case 2:20-cv-01221-DLR Document 1 Filed 06/18/20 Page 15 of 24
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`As the Tri-Rotor 1080 states, Tri-Rotor sprayed a field located at Site ID
`60.
`68402, on which grower D’Arrigo Brothers was growing “lettuce leaf.” Among other
`pesticide chemicals, Tri-Rotor sprayed the D’Arrigo Brothers field with a pesticide
`branded “Intensity® One,” whose active ingredient—just like the Select Max® sprayed by
`Morris Ag Air—is Clethodim, which is used to kill grasses, including wheat. As with Select
`Max®, product labeling and other documentation for Intensity® One provides extensive
`warnings that it poses significant risks to adjacent land and crops, specifying various
`restrictions and directing applicators to “minimize” and avoid drift to off-target plants such
`as grass crops, which includes wheat.
`61.
`The product label for Intensity® One, attached to this Complaint as
`Exhibit D, specifically states:
`THE APPLICATOR IS RESPONSIBLE FOR AVOIDING OFF-
`SITE SPRAY DRIFT. BE AW