Claims of Harm from DBCP Kept Alive in Lawsuit before State Supreme Court

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A lawsuit filed nearly two decades ago is finally going to be heard by the Hawai`i Supreme Court. And although the case has received little local publicity, it is part of a series of lawsuits around the country that pit Central American plantation workers against some of the giants of U.S. industry.

The plaintiffs in the Hawai`i case are six named individuals who worked in Central American banana plantations. They are suing several Dole Food and Del Monte companies, the Pineapple Growers Association of Hawai`i, AMVAC Chemical Corporation, Shell Oil, Dow Chemical, and Occidental Chemical, alleging that they were harmed by exposure to dibromochloropropane, or DBCP – a powerful soil fumigant developed in Hawai`i in the 1950s to control nematodes in pineapple fields.

Manufacturers of the chemical had been aware of the harmful effects of DBCP on lab animals since at least the early 1960s. But not until 1977, after male workers at a plant in California that produced the pesticide complained that they were unable to father children, did the Occupational Safety and Health Administration begin to regulate worker exposure. The Environmental Protection Agency followed suit, banning most uses of DBCP in the continental United States in 1978 (its use was allowed to continue on Maui pineapple fields through 1984).

However, DBCP continued to be used by U.S. fruit companies on foreign banana plantations. Often, the protective clothing and gear needed to prevent skin absorption and inhalation of fumes were not provided. Also, the ways in which the pesticide was mixed and applied generally meant foreign workers had greater exposure to DBCP fumes than did workers in the United States.

But whatever the state Supreme Court decides in this case – Patrickson v. Dole – it still will not address the fundamental reason for the litigation: the question of whether the defendants should be held liable for injuries the plaintiffs say they sustained as a result of the defendants’ actions or products. Instead, as with so many other lawsuits brought over the use of DBCP on foreign soil, the case turns on a legal technicality: did the plaintiffs file their lawsuit before the statute of limitations barred their complaint?

An Inconvenient Forum

Starting in 1993, tens of thousands of workers in plantations in Central America filed class-action lawsuits against the largest U.S.-based fruit growers with holdings in the region and the companies involved in the manufacture of DBCP. According to statements by three of the plaintiffs, they did not realize that their injuries were a result of DBCP exposure until after 1993, when a group of human-rights organizations began working on behalf of DBCP-affected workers in their communities. Among the defendants were Standard Fruit, owned since the 1960s by Dole Food, and Del Monte, two businesses with close ties to Hawai`i.

Many of the DBCP cases were removed to federal court by the defendants, whose attorneys then argued that, under the legal doctrine of forum non convenient (inconvenient forum), the litigation should by rights be conducted in the country where the exposure occurred. That approach only lasted so long as the foreign courts did not render significant judgments against the companies. Once large judgments began to be awarded, and the workers sought to collect, the fruit and chemical companies returned to U.S. courts.

The Hawai`i litigation began life on October 3, 1997, in 2nd Circuit Court (Maui). Immediately, Dole argued for removal to federal court, bringing into the litigation two companies based in Israel (Dead Sea Bromine Co. and Bromine Compounds, Limited,) that had at one point been largely owned or controlled by the government of Israel. With those companies now in the picture, Dole argued, the case involved a question of federal jurisdiction (the conduct of foreign relations). In addition, the two companies claimed immunity under a 1976 law, the Foreign Sovereign Immunities Act (FSIA).

The case came before Judge Helen Gillmor of the U.S. District Court for Honolulu. She denied the plaintiffs’ request to move the case back to state court – and then she dismissed it altogether, under the forum non convenient argument.

The plaintiffs appealed to the 9th U.S. Circuit Court of Appeals. Dole and other defendants in the original lawsuit appealed as well, wanting the appellate court to find in their favor on the matter of the FSIA argument and the federal jurisdiction issue.

Arguments were heard in August 2000; not until May 30, 2001, was the decision handed down. The judges overturned Gillmor’s dismissal, rejecting her finding that the case should be heard in another country and the argument of the defendants that the involvement of the government of Israel required it to be heard in federal court. “[N]othing in plaintiffs’ complaint turns on the validity or invalidity of any act of a foreign state,” the appellate court found. “Plaintiffs seek compensation for injuries sustained from the defendants’ manufacture, sale, and use of DBCP. Plaintiffs don’t claim that any foreign government participated in such activities or that the defendants acted under the color of foreign law.” The case was remanded to Gillmor, with instructions that she send it back to state court.

Dole and other defendants appealed to the U.S. Supreme Court, which agreed to hear the case. Another two years passed before the high court issued its opinion, in May 2003, finding that the Dead Sea companies “were not instrumentalities of Israel under the FSIA at any time.” (Dole had not appealed the 9th Circuit’s rejection of its argument that federal jurisdiction was required because of the involvement of foreign relations.)

The judgment of the appeals court was thus upheld, and the decision, Dole v. Patrickson, has become an oft-cited precedent in many subsequent lawsuits where applicability of the FSIA was claimed.

Back in Hawai`i

Per the Supreme Court’s instructions, in September 2003 the case was returned to 2nd Circuit Court (Maui), where it began life. The plaintiffs allege that Dole and the other companies being sued had conspired to hide facts about the effects of DBCP, thus depriving the plaintiffs of “an informed free choice as to whether to expose themselves” to it; had “published and disseminated incorrect, incomplete, and misleading scientific data, literature, and test reports;” had “distorted the results of medical examinations upon persons using DBCP-containing products by falsely concealing the harm they suffered;” and had “committed fraudulent representations, omissions, and concealments” so that the plaintiffs would continue to expose themselves.

One of the many complicating aspects of the case is the fact that the plaintiffs had, in 1993, joined a class-action lawsuit known as DelgadoDelgado involved thousands of citizens of twelve foreign nations who sought damages for DBCP exposure while working on farms in some 23 different countries. The case was held up from proceeding in U.S. courts while the Costa Rican courts considered whether they had jurisdiction. When that country’s supreme court determined the case should not be heard in that venue, litigation began anew in the United States.

Delgado went from state court to U.S. District, to the 5th Circuit, with the defendants making the same objections regarding federal jurisdiction as they raised in Patrickson. When the 5th Circuit issued an order that conflicted with that of the 9th Circuit, litigation was held up pending the Supreme Court decision. Finally, in 2007, with Delgado back in Texas court, the case was dismissed, since by then “the only remaining identified members of the class had previously opted to pursue their claims” in Patrickson.

For the next couple of years, the parties attempted to reach a settlement. Finally, in December 2006, at Dole’s request, venue was transferred to 1st Circuit (Honolulu). On July 28, 2010, Judge Gary W.B. Chang found in favor of a motion for partial summary judgment filed by several of the defendants, agreeing with the defendants’ new argument that the statute of limitations barred the claims.

Scott Hendler of HendlerLaw, the lead attorney for the plaintiffs, described the tactics of the defendants’ attorneys in a phone interview with Environment Hawai`i from his office in Austin, Texas. “First, they look for any kind of procedural argument to derail the case before they begin to deal with it on the merits.” There was the federal appeal, and when it did not work out, the attorneys raise the matter of the statute of limitations, he said. The clock doesn’t start ticking on the statute of limitations until the injury is discovered, and, Hendler argued, case law provides for its suspension while class-action litigation is ongoing, even if that litigation is in a different jurisdiction, as it was in this case.

The plaintiffs filed a timely appeal of Judge Chang’s decision, but for the next three and a half years, the case languished before the Intermediate Court of Appeals. Finally, on March 7 of this year, a three-judge panel of the ICA – Presiding Judge Daniel R. Foley and Associate Judges Katherine Leonard and Lisa Ginoza – upheld the lower court judgment. They agreed with the defendants that although the statute of limitations was tolled (suspended) while similar litigation in other courts was pending, by any reasonable standard, the two-year statue of limitations applying to most of the plaintiffs’ claims had expired before they filed their lawsuit in Hawai`i. The claim of a breach of implied warranty, for which a four-year statute of limitations applies, was also rejected. “[E]ven though a four-year statute of limitations applies to the breach of implied warranty claim,” the judges wrote, “that claim was not timely asserted because it accrued in the mid-1980s.”

A Grant of Cert

The plaintiffs appealed the ICA decision to the Hawai`i Supreme Court. The original lawsuit, they pointed out, was filed on October 3, 1997, which was within the two-year statute of limitations set by the October 11, 1995, date on which a Texas judge’s ruling in a related case took effect.

The defendants, led by attorneys for The Dow Chemical Company, argued vigorously against the plaintiffs’ application for a writ of certiorari from the high court. There was “no grave error of law” on the part of the ICA, wrote Honolulu attorney Calvin E. Young and Texas attorney Michael L. Brem, assisting in Dow’s defense. The time within which the plaintiffs’ could bring a class action ceased within two years of the Texas judge’s denial of their motion for class certification on July 11, 1995, they wrote, and as a result, “petitioners’ claims are hopelessly time-barred.”

For the plaintiffs, however, Sean Lyons (also of Texas, but admitted to the Hawai`i Bar in 2011) argued that the ICA opinion “creates a trap for putative class members by interpreting an ambiguous housekeeping order” – the Texas judge’s action – “as terminating class action tolling.”

When the Hawai`i Supreme Court finally does hear arguments on the case, scheduled for September 18, the limited question before it will be whether the lawsuit can proceed. If the court finds in the plaintiffs’ favor, that will clear the way for the lower court finally to weigh the merits of the case – more than three decades after the plaintiffs’ DBCP exposure occurred.

The defendants “are scared of the merits because their misconduct is so egregious,” says Hendler. “They’ll be exposed to significant punitive damages, since their conduct is so unconscionable. They’re spending many millions of dollars more to prevent these cases from reaching the merits than they would probably have to pay in a settlement because they’re afraid of the evidence.”

Susanna Bohme, author of the forthcoming Toxic Injustice and a lecturer at Harvard University, notes that many of the DBCP cases have been settled, while Patrickson continues. “It has survived a huge challenge, to the credit of the attorneys,” she told Environment Hawai`i.

“What’s sad about these cases, what’s really angering, is that the corporations know that if they can delay, the threat of suits will diminish over time. Delay is frustrating in and of itself, but it becomes tragic when you realize all these workers will die and, since so many of them are childless, there will be few family members to continue legal action.”

Volume 25, Number 3 September 2014

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