dissenting:
I respectfully dissent and would affirm the decision of the trial court, granting defendant’s motion for summary judgment.
The allegations in this case are unusual. Over the years, plaintiff has complained that farmers spraying herbicide have damaged his red-bud trees, apple trees, and tomato plants. See Kleiss v. Cassida, 297 Ill. App. 3d 165, 696 N.E.2d 1271 (1998). On April 27, 1998, plaintiff observed possible herbicide damage to his tomato plants. Although plaintiff lives in a farming area, “a fog of chemicals,” according to a pesticide specialist with the Illinois Department of Agriculture, plaintiff picked out defendant’s farm, l3/4 miles away, as the source of his problem. Plaintiff did that by driving around until he saw a farm (defendant’s farm) where weeds had been “damaged.” Plaintiff alleges that defendant’s spraying of 2,4-D on or about April 23, 1998, was negligent and caused the damage to plaintiffs crops.
While summary judgment has been called a drastic measure, it is an appropriate tool to employ in the expeditious disposition of a lawsuit in which the right of the moving party is clear and free from doubt. Robertson v. Sky Chefs, Inc., 344 Ill. App. 3d 196, 199, 799 N.E.2d 852, 855 (2003); Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986). If a party moving for summary judgment supplies facts that, if not contradicted, would entitle such party to a judgment as a matter of law, the opposing party cannot rely on his pleadings alone to raise issues of material fact. Thus, facts contained in an affidavit in support of a motion for summary judgment that are not contradicted by counteraffidavit are admitted and must be taken as true for purposes of the motion. Purtill, 111 Ill. 2d at 240-41, 489 N.E.2d at 871-72.
As the trial court stated in its order, defendant’s expert (Wilson) gave the opinion that Bozdech’s spraying could not have caused the damage. Plaintiffs own expert (Masiunas) had the same opinion. Masiunas testified that defendant had applied low-volatile 2,4-D, that volatilization was only a problem above 95 degrees, that the highest temperature in the area between April 23 and May 5 was 77 degrees. Masiunas testified the tomato injuries could not have been caused by spray drift, that the wind was mostly out of the west during the relevant period. Foster, the Illinois Department of Agriculture specialist, could not say that defendant’s spraying caused plaintiffs damage. Foster took samples of the most severely damaged tomatoes, but laboratory tests detected no 2,4-D. The Department of Agriculture refused to send a warning letter to defendant. Wilson had never seen spray drift more than 3,000 to 3,500 feet; Foster had never seen herbicide drift cause damage beyond one mile.
At oral argument, plaintiffs attorney stated that plaintiff had two friends, Ries and Bateman, who were allowed to pick vegetables on plaintiffs farm. Ries, a retired professor in environmental sciences and crop sciences, testified he was certain, to a reasonable degree of professional certainty, that defendant’s field was the source of plaintiffs 2,4-D damage. Ries did not explain his conclusion. Ries had never seen spray drift occur more than “a couple of hundred yards.” Ries testified that 2,4-D travels via volatile drift and that volatilization drift can exceed IV2 miles where the temperature is above 85 degrees with a 20 mile-per-hour wind. Ries was unaware of the weather conditions when defendant sprayed his field and had no opinion as to whether defendant did anything improper in applying the chemicals.
Bateman is a retired extension adviser who worked as a paid consultant for plaintiff from 1991 until 1998. Based upon his experience in the 1950s, Bateman opined that 2,4-D could drift l1/? miles. Bateman acknowledged that the 2,4-D used in the 1950s is not the same as the low-volatile 2,4-D used today. Bateman testified that 2,4-D could drift IV2 miles with a wind speed of five miles per hour. Bate-man did not base that upon any studies he or others had conducted, but upon the warning on the label, which advises a user not to spray unless the wind speed is lower than that. Bateman did not know the weather conditions during the appropriate time but testified that based upon a reasonable degree of scientific certainty, defendant’s spraying was the source of plaintiffs damage. Bateman did not explain his conclusion. Bateman testified that 2,4-D damage was clearly identifiable but later testified that Banvel or Dicamba damage would be similar.
The trial court correctly concluded that plaintiffs experts, Ries and Bateman, did not present a scientific analysis or basis for their opinions. An expert opinion is only as valid as the reasons for the opinion. Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 299, 775 N.E.2d 964, 987 (2002). When an expert testifies simply that plaintiff should win but is unable to support that conclusion with reasoned analysis, the expert’s testimony is worthless, provides no assistance to the jury, and should be stricken. Kleiss, 297 Ill. App. 3d at 174, 696 N.E.2d. at 1277 (referring to previous testimony of Bateman). There is no genuine issue of a material fact in this case. Plaintiffs affidavits did not contradict the facts supplied by defendant. Plaintiff should not be allowed to get his case to a jury by standing on his pleadings.
Assuming that plaintiffs damage was caused by 2,4-D, how was it possible to pick out defendant’s farm, ls/4 miles away, as the source of that damage? Foster testified that plaintiffs’ farm was in a “fog of chemicals out there” and it was hard to pinpoint where they may have come from. Ries testified to the increased use of chemicals with no-till farming and acknowledged that it was possible that a farm located between plaintiff’s and defendant’s farms could have applied a herbicide spray. Plaintiff testified he was able to follow the pattern of damage all the way back to his farm, but there was no testimony what herbicides were applied by the intervening farms during this period. All the testimony was that defendant applied his herbicide properly, in the manner directed by the manufacturer. There was no testimony what herbicides were applied on the farms surrounding plaintiff.
How can plaintiff ever prevail in a case like this? How can plaintiff establish that defendant’s 2,4-D caused his damage when he lives in an area described as “a fog of chemicals?” Laboratory tests cannot tie defendant’s herbicide to plaintiffs damage; in fact, laboratory tests here cannot even establish that plaintiff suffered 2,4-D damage. Summary judgment is appropriate here because plaintiff lacks sufficient evidence to prove an essential element of his cause of action. Williams, 316 Ill. App. 3d at 688, 737 N.E.2d at 668 (Celotex test). There is another reason why summary judgment is appropriate here. Even if some issue of fact is presented by a motion for summary judgment, if what is contained in the pleadings and affidavits would have constituted all of the evidence before the court at trial and upon such evidence nothing would be left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered. Fooden v. Board of Governors of State Colleges & Universities of Illinois, 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500 (1971); Koziol v. Hayden, 309 Ill. App. 3d 472, 477, 723 N.E.2d 321, 324-25 (1999). That is the situation here.
Whether a duty exists in a particular case is a question of law to be determined by the court. Among the factors to be considered in determining whether a duty should be imposed are the magnitude of the burden of guarding against such injury and the consequences of placing that burden on the defendant. Happel, 199 Ill. 2d at 186-87, 766 N.E.2d at 1123-24. The majority characterizes plaintiffs complaint as sounding in absolute liability: if defendant (or anyone else) applies a herbicide, and the herbicide causes damage to plaintiff, defendant is liable even though defendant followed all recommended precautions. Such a rule would impose a severe burden on farmers and have extensive consequences. We should not impose such a duty.