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Both sides may appeal citrus canker decision

Bradenton Herald – May 8, 2008

ASSOCIATED PRESS

FORT LAUDERDALE – Both sides got a taste of victory and defeat in the legal battle over the value of thousands of residential citrus trees destroyed in an attempt to eradicate canker disease. Now, it’s likely both the state and Fort Lauderdale-area homeowners will appeal.

And in September, a jury in Palm Beach County will wrestle with the same issues, with other cases to follow.

Jurors on Tuesday awarded the relatively low sum of $11.5 million to about 58,000 Broward County homeowners. Jurors were swayed by expert testimony put on by lawyers for the state Agriculture Department, which indicated the trees had been exposed to canker and were likely to become infected themselves.

“I believe the department was doing their job, trying to protect us from the disease,” said juror Yannick Joseph.

Attorney Robert Gilbert, who represents the Broward homeowners, said jurors should never have heard that testimony because Circuit Judge Ronald Rothschild had previously ruled the science was invalid. The judge said there was “no rational basis” for the state to chop down healthy citrus trees within a 1,900-foot radius of an infected tree.

“The judge allowed them to hear flawed science and that was the determining factor in the jury’s decision,” Gilbert said.

He also objected to the state lawyer’s repeated use of the word “hazard” to describe the healthy trees even though Rothschild had found they were not a “public nuisance.”

“It poisoned the jury throughout the trial,” Gilbert said.

The trees were cut down as part of a decade-long canker eradication program that ended in 2006 when officials decided the bacteria that causes the disease had been spread too far by hurricanes. In all, some 16.5 million residential, commercial and nursery trees were destroyed.

Canker causes blemishes on fruit and can make it drop prematurely, and eventually infected trees weaken and may stop producing fruit. The disease has no effect on humans or animals and fruit from an infected tree can still be eaten or juiced.

The Broward homeowners’ expected appeal also will focus on whether the award is too meager to meet the legal definition of “full compensation” for the loss in Broward of more than 133,700 orange, lemon, lime, grapefruit and other trees.

The jurors said the final payouts should deduct the $55 to $100 already paid to many residents by the government, which state attorneys said would leave only about $4.4 million or roughly $34 a tree. Gilbert said the full $11.5 million would equal about $86 a tree, but even that figure is misleading because it doesn’t count seven years of interest.

The residents were seeking as much as $400 per tree, or up to $50 million, because some of the trees were 25 feet tall or higher. They wanted a specific amount for trees based on height, health and other individual factors.

Agriculture Department officials had announced previously they would appeal the decisions by Rothschild and a Palm Beach County judge finding the agency liable for damages because the tree destruction constituted a government “taking” of private property that required compensation.

Agency spokesman Mark Fagan said Wednesday that no final decisions on appeals have been made, but the department stands by its contention that the destroyed trees had little or no value because they were exposed to canker.

Nancy La Vista, attorney for about 41,000 residents who lost trees on Palm Beach County, said jury selection begins there Sept. 15 for the compensation phase of that class-action case. La Vista, who was in the courtroom Tuesday when the Broward jurors reached their verdict, said she didn’t think that case would affect hers.

“Any trial lawyer will tell you, you can try a case 10 times and get a different result. The juries are different and the judges are different,” she said. “We’re ready to go.”

Similar lawsuits in Miami-Dade and Orange counties have not yet been certified as class actions. Still another case in Lee County is also pending.

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