In 30 Years of Litigation, Only Once Has a Jury Heard Case on the Merits

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On her web page, attorney Andrea E. Neuman boasts of her knock-out court victories in several prominent lawsuits brought against her corporate clients, including Dole Food.

Neuman, a partner with the white-shoe New York law firm of Gibson, Dunn & Crutcher, discusses at some length her involvement with DBCP litigation. She notes that she “successfully defeated all pending DBCP claims against Dole in Hawai`i in Adams v. Dole and Patrickson v. Dole….”

Actually, it is a bit early to carve notches in her belt for those cases. Patrickson will be argued before the state Supreme Court on September 18. And Adams – “the only DBCP claims to have ever been made by U.S. agricultural workers,” in Neuman’s words – still clings to life. In January, the Intermediate Court of Appeals remanded that case back to the 1st Circuit Court for further proceedings.

Still, Neuman and several other high-profile attorneys have pulled out all stops to prevail, not only in courts of law, but in the court of public opinion as well, in many of the other cases brought on behalf of foreign agricultural workers who claim injury as a result of DBCP exposure.

Background

Although exposure for most of the Central American workers occurred in the 1970s and early 1980s, not until the late 1980s did most workers find out that DBCP could be associated with some of the problems they were experiencing, including low sperm counts or even complete sterility.

One of the earliest lawsuits, Domingo Castro-Alfaro, was brought against Dow and Shell in a Texas court in 1984. After an appeal to the Texas Supreme Court upheld the plaintiffs’ right to bring the case in 1990, a settlement was reached in 1992, with the more than 80 plaintiffs receiving from $1,000 to $10,000 each. Similar cases brought in Florida and California around the same time were dismissed on the ground of forum non conveniens. In some instances, foreign courts heard the lawsuits, but many times awards were capped at such low levels that attorneys had little incentive to pursue them.

In 2001, the Nicaraguan government enacted Special Law 364, which allowed for generous awards for plaintiffs claiming harm from DBCP exposure, with the result that banana workers there received a number of favorable judgments.

“In contrast to their earlier assertions that cases should be tried in plaintiffs’ home countries,” write Vicent Boix and Susanna Bohme in a commentary published in 2012 in the International Journal of Occupational and Environmental Health, “the fruit and chemical companies argued that these cases were invalid. According to The New York Times, Dole, Dow, and Shell hired people who had been prominent in the Reagan and Clinton administrations to obtain the collaboration of the Bush administration in repealing Law 364,” the law that facilitated the DBCP trials.

The Nicaraguan Supreme Court upheld the law, however, and Nicaraguan plaintiffs sought to enforce judgments in courts not only in the United States, but in other jurisdictions as well, where the corporations had a presence.

The approathech hasn’t succeeded, however. In one of the more prominent cases involving a Law 364 judgment, the Nicaraguan workers filed a lawsuit in Miami (Osorio v. Dole), seeking to enforce an award of $97 million against Dole and other companies. In 2009, the judge threw out the lawsuit, holding that certain provisions of the law were inconsistent with international standards of justice.

California Court

In another case – notorious or celebrated, depending on one’s viewpoint – 12 Nicaraguan workers filed suit in California state court against Dole and other DBCP producers or users. The case, known as Tellez v. Dole, was the first – and, so far, only – in the United States in which a jury heard the merits of the worker claims argued.

In 2007, the jury awarded six of them a total of $3.2 million in compensatory damages. Five of those six were awarded additionally punitive damages in the total amount of $2.5 million, with the jury determining that Dole had concealed DBCP’s danger from the workers. Dole protested the verdict, and the trial judge, Victoria Chaney, dismissed the punitive damages altogether and reduced compensatory damages to just $1.58 million to be distributed among just four of the original 12 plaintiffs.

Following the Tellez verdict, attorneys representing the plaintiffs filed two more lawsuits involving similar claims – Mejia v. Dole and Rivera v. Dole. This time, Dole challenged the employment histories of the plaintiffs, alleging that the plaintiffs never worked for Dole, had been coached on their testimony by their attorneys, and were perpetrating a fraud on the court. They rounded up witnesses in Nicaragua who supported the claim of fraud, although Dole asked that their identities not be disclosed to the plaintiffs on the ground that the witnesses feared for their safety.

Boix, of the Polytechnic University of Valencia, and Bohme, a lecturer at Harvard University, discuss these cases at length in their commentary, “Secrecy and justice in the ongoing saga of DBCP litigation.”

“Chaney seemed to accept the story offered by Dole’s witnesses, despite the fact that, in contravention of usual practice, no meaningful cross-examination of their story was allowed,” they write. Chaney then dismissed both the Mejia and Rivera lawsuits with a finding that a fraud had been committed on the court by the plaintiffs’ law firms, their doctors and laboratories, and Nicaraguan judges.

Dole’s attorneys asked Chaney to vacate the Tellez verdict as well, which they claimed was built on the same kind of fraud. She obliged by overturning that in July 2009.

Since then, write Boix and Bohme, “evidence countering the version given by the secret witnesses in California emerged,” including allegations that Dole investigators had paid some of the secret witnesses to provide scripted testimony.

The Tellez case has been exceptionally nasty, with charges and counter-charges of unethical behavior being leveled against attorneys from both sides. In February 2011, the California State Bar dismissed the plaintiffs’ complaint against three Dole counsel. Also, the defendants’ complaint to the bar over the conduct of Juan Dominguez, a flamboyant attorney representing the Nicaraguan workers, was dismissed, with the bar finding “this matter does not warrant further action.”

Tellez was appealed to the Court of Appeals in California (under the title Laguna v. Dole). In March of this year, the appellate court affirmed Judge Chaney’s ruling.

Health Effects

On its website page titled “DBCP Facts,” Dole states, “there is no credible scientific evidence that Dole’s use of DBCP on banana farms caused any of the injuries claimed in any of the DBCP lawsuits, including sterility.”

Some researchers have even cast doubt on the claim that DBCP exposure results in long-term sterility or other reproductive problems. In a study published last year in The Open Urology and Nephrology Journal, the four authors – Kathleen Hwang, Michael Eisenberg, Rustin Walters, and Larry Lipshultz – argue that while sperm counts in lab rats clearly decline after DBCP exposure, similar effects are not seen in humans, since rats “produce more damaging DBCP metabolites than humans and are less able to detoxify these resulting products.” In other words, they argue, rats are more sensitive to DBCP than humans.*

They go on to pooh-pooh the various legal actions taken by foreign workers. “Despite the lack of substantive scientific data indicating a causal relationship between testis failure and the agricultural application of DBCP, extensive litigation continued and extends even to the present day. Driven by suspect putative data, international political ambitions, and potentially large settlements, the legal journey reads like a Hollywood movie.”

The Environmental Protection Agency has no qualms about linking DBCP to reduced sperm counts in workers who have experienced chronic exposure. “Chronic exposure to DBCP causes male reproductive effects,” the EPA states on its fact sheet for the chemical. “Decreased sperm counts have been observed in men occupationally exposed to DBCP.”

Bohme also takes exception to the arguments of Lipschultz and his co-authors that would minimize the impact of DBCP on male reproductive health. “Claims that there is no evidence of reproductive harm in farmworkers are so contrary to the clinical evidence of DBCP damage that they seem geared toward mounting a scientific defense in the courtroom in case the defendants’ procedural gambits fail to protect them from a trial,” she said in an email to Environment Hawai`i.

As to the “legal journey that reads like a Hollywood movie,” the defendants have played up this interpretation. But Bohme, whose book, Toxic Injustice, will be published in December by the University of California Press, has a different spin.

The defendants “have successfully avoided trials in these cases from 1983 until 2007,” she said in a phone interview. The first jury trial of the claims, she added, “resulted in a very measured jury verdict in favor of the Nicaraguan workers, but the defendants used no-holds-barred, unethical tactics to overturn the verdict.”

Now, she said, “they’re very focused on avoiding jury trials or any trial on the merits.”

Bottom Line

As the years pass, the likelihood of a verdict favorable to any of the Central American workers grows dim. This fact is reflected in the public filings with the Securities and Exchange Commission by several of the defendant companies that are publicly traded. (Dole dropped out of this category two years ago.)

The Dow Chemical Company, for example, writes in its annual filing with the SEC, “Numerous lawsuits have been brought against the Company and other chemical companies, both inside and outside of the United States, alleging that the manufacture, distribution or use of pesticides containing dibromochloropropane (DBCP) has caused personal injury and property damage, including contamination of groundwater. It is the opinion of the Company’s management that the possibility is remote that the resolution of such lawsuits will have a material impact on the Company’s consolidated financial statements.”

The American Vanguard Corporation, whose subsidiary AMVAC produced DBCP, is similarly sanguine about its prospects in various pending DBCP lawsuits. “At present, there are approximately 100 lawsuits, foreign and domestic, filed by former banana workers in which AMVAC has been named as a party,” the company states in its 10-K filing dated December 31, 2013. “Fifteen of these suits have been filed in the United States (with prayers for unspecified damages) and the remainder have been filed in Nicaragua.”

American Vanguard discusses several of the lawsuits at length, including the two Hawai`i cases. Regarding both Patrickson, where the plaintiffs are Central American banana workers, and Adams, the case involving Hawai`i pineapple workers, the company says it “does not believe that a loss is either probable or reasonably estimable and, accordingly, has not set up a loss contingency for this matter.”

* In an oddly worded disclaimer, the authors of the article state at the conclusion that “this article content has no conflicts of interest.” One of the authors, Lipshultz, a professor of urology at Baylor College of Medicine, testified for defendants in a Florida case brought by Latin American plantation workers, Orsorio v. Dole. He told the court he was billing defendants “my usual hourly rate of $850.00 per hour.”

Volume 25, Number 3 September 2014

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