United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued April 14, 2014                  Decided May 30, 2014

                         No. 13-7044

  VENANCIO AGUASANTA ARIAS, HUSBAND, ON BEHALF OF
 HIMSELF, AS GUARDIAN OF HIS FOUR MINOR CHILDREN, AND
  ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, ET AL.,
                     APPELLANTS

                              v.

                      DYNCORP, ET AL.,
                        APPELLEES


                  Consolidated with 13-7045


        Appeals from the United States District Court
                for the District of Columbia
                    (No. 1:01-cv-01908)
                    (No. 1:07-cv-01042)


     Christian Levesque argued the cause for appellants. With
her on the briefs were Terrence Collingsworth and Eric Hager.

     Eric G. Lasker argued the cause for appellees. With him on
the brief were Joe G. Hollingsworth and Rosemary Stewart.

   Before: TATEL, Circuit Judge, and SILBERMAN and
SENTELLE, Senior Circuit Judges.
                                2

    Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.

     SILBERMAN, Senior Circuit Judge: Appellants, a group of
Ecuadorian provinces and individual farmers, alleged that they
were injured by an anti-drug herbicide spraying operation in
Colombia, conducted by an American company. In a series of
rulings, the district judge dismissed all claims. Some of those
are appealed. We affirm all but one.

                                I.

     Since the late 1990s, the United States and Colombia have
cooperated in a program known as “Plan Colombia,” which
encompasses a range of policies designed to combat Colombian
drug cartels. That includes aerial herbicide spraying targeting
illegal coca crops. Defendant DynCorp, an American contractor,
conducted these spraying operations using an herbicide called
glyphosate.

     On September 11, 2001, plaintiffs filed a putative class
action on behalf of all Ecuadorians who lived within ten miles
of the Colombian border. They alleged that herbicide had drifted
across the border from Colombia and that the planes themselves
had actually crossed the border and sprayed in Ecuador. The
plaintiffs invoked the district court’s diversity jurisdiction and
asserted a wide variety of tort claims for alleged injuries to
health, property, and financial interests, relying on both
Ecuadorian and District of Columbia law. All parties apparently
agree now, however, that D.C. substantive law governs. For
reasons that are not entirely clear to us, the case proceeded at a
glacial pace.
                                3

     In 2006 and 2007, additional cases were filed in the
Southern District of Florida, on behalf of other individual
plaintiffs, as well as three Ecuadorian provinces. Those cases
were transferred to our district court, where they were
consolidated with the original suit. The initial plaintiffs dropped
their class action demand at this time, and discovery then
proceeded.

     In 2007, the district court attempted to move the
proceedings along by employing a requirement that plaintiffs
submit answers to questionnaires concerning their alleged
injuries – a common trial management technique in toxic torts
cases with multiple plaintiffs. Such an order is sometimes called
a Lone Pine order, in reference to Lore v. Lone Pine Corp., No.
L-33606-85, 1986 WL 637507 (N.J. Superior Ct. Nov. 18,
1986). It generally requires plaintiffs in a toxic torts case to
produce affidavits setting forth some basic information
regarding their alleged exposure and injury. “In the federal
courts, such orders are issued under the wide discretion afforded
district judges over the management of discovery under Fed. R.
Civ. P. 16.” Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th
Cir. 2000). Even after an extension of the response deadline,
numerous plaintiffs submitted incomplete responses. The court
warned the plaintiffs that a failure to fully complete the forms by
November 19, 2008, would lead to a dismissal with prejudice.
The judge apparently relented, however, extending the deadline
again to January 21, 2009. Then, a year later, in January of
2010, the court finally dismissed (with prejudice) those plaintiffs
who had failed to submit complete responses to the
questionnaires.

    The court proceeded to hold that the Ecuadorian provinces
had failed to demonstrate Article III standing. The provinces
claimed that their budgets had been harmed by reduced tax
                                4

revenue and by necessary expenditures to address a public
health crisis supposedly caused by the Plan Colombia spraying.
But the court concluded that the provinces had either failed to
demonstrate an injury cognizable for purposes of standing, or
failed to demonstrate that DynCorp was the cause of the alleged
injuries.

     As for the remaining individual plaintiffs, the parties agreed
that the court should focus on a limited number of “test
plaintiffs,” but disagreed as to how they would be chosen.
Appellee argued they should be chosen half by the plaintiffs and
half by defendant, but the court ultimately sided with plaintiffs
who were to choose all the test plaintiffs. In their brief arguing
for their position, the plaintiffs included a footnote (which is
now hotly disputed) asserting that if the defendant’s proposed
test plaintiff selection method were accepted by the court, “no
binding effect could be given to the outcome of the remaining
claims,” thereby, at least, implying that if the court accepted the
plaintiffs’ position, the result would bind all plaintiffs.

     The court ultimately dismissed all of the remaining claims
applicable to individual plaintiffs – both test and non-test
plaintiffs – because they failed to provide expert testimony
regarding the effects of glyphosate.

                                II.

     The plaintiffs advance a number of arguments. The
Ecuadorian provinces insist that they do have Article III
standing. The non-test plaintiffs argue that the court improperly
extended its summary judgment beyond the test plaintiffs. Those
plaintiffs who were dismissed for failing to submit complete
responses to the questionnaires argue that dismissal was too
harsh of a sanction, and all of the individual plaintiffs contend
                                5

that expert testimony was unnecessary to show that glyphosate
had damaged the plaintiffs’ crops, or to prove the torts of
trespass, battery, nuisance, intentional infliction of emotional
distress, or negligent infliction of emotional distress.

                               A.

     We first consider the Ecuadorian provinces’ Article III
standing. They claim that the aerial spraying has caused health
problems and driven large numbers of people away from the
affected areas, which in turn forced the provinces to invest in
additional schools, health centers, and other infrastructure along
the border. The spraying allegedly has also cost them tax
revenue – which can be estimated by comparing their annual
budget deficits with their generally balanced budgets before the
aerial spraying began. Indeed, it is asserted that the provinces’
entire budget deficits are attributable to DynCorp’s actions.

     The district court correctly concluded, however, that the
provinces had either failed to allege an injury-in-fact, or failed
to present facts sufficient to demonstrate that these financial
injuries were fairly traceable to DynCorp’s spraying. See Sierra
Club v. E.P.A., 292 F.3d 895, 898 (D.C. Cir. 2002). Lost tax
revenue is generally not cognizable as an injury-in-fact for
purposes of standing. Pennsylvania v. Kleppe, 533 F.2d 668,
672 (D.C. Cir. 1976). And the provinces’ own expert noted that
there are a number of economic and environmental factors that
were responsible for the provinces’ budget deficits, including
labor disputes, difficulty collecting taxes, and even a volcanic
eruption. Although the provinces generally allege that land and
crops were damaged, they never claim to actually own the land
or crops at issue.
                                 6

     To be sure, the provinces’ direct expenditures on facilities
like health centers could theoretically constitute an injury-in-fact
for standing purposes, but the provinces failed to show that these
injuries were “fairly traceable” to the defendants’ actions. For
example, the provinces contended that health centers were
needed to address a high infant mortality rate and a number of
prevalent diseases, but they do not even claim that these medical
issues are a result of the spraying. Other testimony referred to
explosions, grenades, and mortars across the border in
Colombia, which are not even asserted to be DynCorp’s
responsibility. A defendant in a tort suit can, of course, be liable
without being the sole cause of a plaintiff’s injury, but the
provinces have failed to demonstrate that DynCorp was any kind
of cause of their alleged financial injuries. So we agree with the
district court that the provinces lack standing.

                                B.

     Turning to the individual plaintiffs, we easily reject the
challenge brought by the 163 plaintiffs who were dismissed for
failure to provide complete responses to the court-ordered
questionnaires. As we noted, the court had ordered these
plaintiffs to submit written statements detailing what specific
damages they suffered and where they were located when they
were allegedly exposed to the herbicide. After plaintiffs’
repeated failures to adequately complete the responses – and
three deadline extensions – the district court ultimately
exercised its Rule 37(b) prerogative to sanction the plaintiffs by
dismissing the case.

    These plaintiffs argue that dismissal was too harsh of a
sanction – that the judge abused his discretion. According to
them, the district court failed to consider, as it was required to
do under our precedent, whether “less dire alternatives” would
                                   7

be adequate. See Bonds v. D.C., 93 F.3d 801, 808 (D.C. Cir.
1996). Yet the court gave the plaintiffs every opportunity to
complete their responses. Indeed, the court appears to have been,
if anything, too patient, applying no sanctions at all for the
plaintiffs’ earlier failures. Only when further extensions were
obviously futile did the court dismiss these cases. It would, thus,
be impossible to conclude that the judge abused his discretion.


                                  C.

     The district court dismissed all individual plaintiffs’ claims
for crop damages because they failed to provide expert
testimony demonstrating “general causation.” In a toxic torts
case, proof of general causation is proof that the substance in
question is capable of causing the particular injuries complained
of.1

     The plaintiffs argue that the district court erred in requiring
such an expert. They claim – correctly – that there is no dispute
as to whether glyphosate-based herbicides kill plants. But they
attack a straw man. The district court required expert testimony
not to prove that herbicides kill plants, but to determine whether
the specific herbicide at issue was capable of causing the

     1
      Proof of specific causation is still required to show that the
substance in question did, in fact, cause the injuries. Young v. Burton,
567 F. Supp. 2d 121, 138 (D.D.C. 2008) aff'd, 354 F. App'x 432 (D.C.
Cir. 2009). The distinction is important, because if the plaintiffs
cannot show general causation, that is a reason to dismiss all of the
crop damage claims, whereas proof of specific causation might be
expected to vary from case to case.
                                 8

specific kinds of injuries complained of. For example, plaintiffs
claimed that the aerial spraying caused black spots to appear on
their crops, but the defendant presented unrebutted expert
testimony that glyphosate does not cause spotting. Because
District of Columbia law requires expert testimony where the
parties offer competing causal explanations for an injury that
turn on scientific information, the district judge appropriately
dismissed these claims. See Baltimore v. B.F. Goodrich Co., 545
A.2d 1228, 1231 (D.C. 1988). A general causation expert would
also, presumably, have been able to testify as to: the
concentration of herbicide necessary to produce varying effects,
the susceptibility of various types of plants, and the potential for
the herbicide to drift outside of the immediate vicinity of a
spraying operation. These are all issues that are not within the
ken of the average lay juror.

                                D.

     More troubling is the plaintiffs’ claim that the district judge
improperly granted summary judgment against the non-test
plaintiffs, along with the test plaintiffs, because the former never
agreed to be bound by the latter’s prospects. DynCorp contends
that the fatal footnote constitutes consent – at least by
implication – and that plaintiffs are therefore estopped.
Although we doubt the footnote is sufficient to constitute formal
consent, it certainly could have given that impression to the
district judge.

     Indeed, the plaintiffs never brought to the judge’s attention
their claim that they now assert on appeal, and, of course, we
will not ordinarily consider an issue not presented below. Even
if the plaintiffs were “surprised” – which may be doubtful – by
the scope of the judge’s order, that does not excuse their failure
to bring the issue to the judge’s attention through a Rule 59(e)
                                9

motion (to alter or amend the entry of judgment). We have
squarely held that a party must preserve an issue for appeal even
if the only opportunity was a post-judgment motion. See Jones
v. Horne, 634 F.3d 588, 603 (D.C. Cir. 2011). And the
misleading footnote makes the plaintiffs’ failure to bring such
a motion particularly egregious.

                                E.

     The individual plaintiffs do present one winning argument.
They assert that the district court was wrong to dismiss claims
that do not require expert testimony, namely, claims for trespass,
battery, nuisance, and emotional distress; which do not need
proof of actual damage from glyphosate. The defendant
contends that the plaintiffs have waived these arguments by
failing to present them first to the district court. But, as the
defendant concedes, the plaintiffs did raise at least most of these
arguments; they merely did so in a separate summary judgment
motion. Although arguments must be presented in the same
proceeding in order to preserve the issue for appeal, United
States v. British Am. Tobacco (Investments) Ltd., 387 F.3d 884,
887-88 (D.C. Cir. 2004), they need not be presented in a single
filing.

     Not so, regarding simple trespass on plaintiffs’ property;
that argument was not presented at all before the district court.
The plaintiffs argue in their appellate briefs that the tort of
trespass does not require proof of actual damage. But this
argument does not appear in their summary judgment motion.
Rather, the plaintiffs only argued below that their trespass injury
was crop damage, which could, they claimed, be demonstrated
without expert testimony. As we noted, supra, the district court
properly rejected that argument.
                                   10

      Plaintiffs’ claims for battery, nuisance, and intentional
infliction of emotional distress stand on different footing; none
of those claims requires proof of physical harm, and we see no
reason why expert testimony should be necessary to prove these
claims. See Evans v. Washington Ctr. for Internships &
Academic Seminars, 587 F. Supp. 2d 148, 150 (D.D.C. 2008)
(Battery requires a showing of a harmful or offensive touching.);
Homan v. Goyal, 711 A.2d 812, 817 (D.C. 1998) (A defendant
is liable for intentional infliction of emotional distress when the
plaintiff proves that the defendant’s conduct was outrageous,
intentional or reckless, and that it caused the plaintiff severe
emotional distress.); B & W Mgmt., Inc. v. Tasea Inv. Co., 451
A.2d 879, 882 (D.C. 1982) (“A public nuisance is an
unreasonable interference with a right common to the general
public,” and “private nuisance is a substantial and unreasonable
interference with private use and enjoyment of land.”) (citing
Rest. 2d Torts §§ 821B(1), 821D (1979)). Of course, we do not
mean to suggest as a matter of law that expert testimony is
always unnecessary where these torts are concerned. We simply
recognize that the defendant has presented no persuasive
arguments as to why expert testimony is necessary here.
Accordingly, the district court erred in dismissing these claims
– at least on the basis of a failure to produce expert testimony.2

    By contrast, plaintiffs’ claim for negligent infliction of
emotional distress is more vulnerable. To recover under this tort
theory, plaintiffs must prove that they were within the “zone of


     2
      It is entirely possible that plaintiffs may be unable to produce
enough evidence relating to other elements of these torts, but that is an
issue for the district court to consider in the first instance.
                                    11

physical danger” created by the defendant’s negligent action. A
classic example is that of the reckless driver who speeds by a
pedestrian, missing her by only inches. See, e.g., Quinn v.
Turner, 155 Ariz. 225, 226 (Ct. App. 1987). But under District
of Columbia caselaw a plaintiff must be in actual physical
danger to recover. The question is not the reasonableness of the
plaintiff’s distress, but rather the unreasonableness of the
defendant’s conduct. For example, it may be entirely reasonable
for a plaintiff to suffer severe emotional distress at seeing a
relative injured, but a defendant does not breach a duty to
plaintiffs unless he actually exposes them to danger. Williams v.
Baker, 572 A.2d 1062, 1064 (D.C. 1990). Because expert
testimony is necessary to determine whether any plaintiffs were
actually in the zone of physical danger, we affirm the district
court’s dismissal of the negligent infliction of emotional distress
claims.3

                                  ***

     We remand for consideration of the individual plaintiffs’
claims for battery, nuisance, and intentional infliction of
emotional distress. In all other respects, the judgment of the
district court is affirmed.
                                                   So ordered.


     3
        A toxic exposure case differs from that of the reckless driver
who barely misses a pedestrian because toxic torts plaintiffs will likely
not know for certain, at the moment of exposure, whether they have
had a close call. It is not until the nature of the substance is determined
that it is possible to say for certain whether a plaintiff was within a
zone of physical danger. That a plaintiff might be quite reasonably
distressed at being sprayed with an unknown substance does not affect
the result.
