Hawai`i Plaintiffs Await Court Action On Complaints Of Injury from DBCP

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Dibromochloropropane was invented in Hawai`i, and it continued to be used on pineapple fields in the state for years after the Environmental Protection Agency banned it elsewhere in the United States.

Despite that, there seems to have been just one court case brought by Hawai`i pineapple workers alleging they were harmed by exposure to the chemical. That case was brought by Mark K. Adams and Nelson Koon Sung Ng and their spouses, Joanie Adams and Zinnia K.L. Ng. In 2007, they filed a complaint in 1st Circuit Court against several Dole companies, the Pineapple Growers Association of Hawai`i, and DBCP manufacturers, including AMVAC, Dow, Shell, and Occidental Chemical.

According to the lawsuit, Adams, who was employed by Dole as a pineapple field worker in Wahiawa, was exposed in 1974 and 1975. As a result of the exposure, he claims he suffered serious injuries, including testicular cancer. Ng worked as a pineapple harvester from 1971 to 1973 on the island of Lana`i. He, too, claims he developed testicular cancer, among other injuries, as a result of the exposure to DBCP. Both say that they discovered their injuries were related to DBCP exposure within two years of the lawsuit being filed.

In March 2008, Dole filed a motion to dismiss the case. The Hawai`i Workers Compensation Law, Dole said, barred Ng and Adams from seeking damages in court for injuries sustained during their work.

In the meantime, in light of information gained through the discovery process, the plaintiffs’ attorneys filed a request with the court to amend their original complaint to include, among other things, a claim that they had experienced “non-work related” exposure to DBCP, allowing the case to go forward regardless of the legal effect of the Workers Compensation Law.

But without making a decision on the motion to amend, in August 2009, Judge Rom Trader granted Dole’s motion to dismiss.

The Appellate Journey

Attorneys for the plaintiffs appealed to the ICA. In January 2010, Chief Judge Craig H. Nakamura and Associate Judges Daniel R. Foley and Katherine G. Leonard signed a three-page decision finding that the appellate court had no jurisdiction because of technical flaws in Trader’s ruling. The case went back to 1st Circuit, where that July, the judge issued a revised ruling.

Again, the plaintiffs appealed. This time, the ICA took three and a half years to reach a decision in the case.

On the one hand, the judges – Presiding Judge Foley, Associate Judge Leonard and Associate Judge Lisa M. Ginoza – did not find that the lower court had improperly granted the motion to dismiss, based on the complaint as filed. However, they found that the court had “abused its discretion in denying the plaintiffs leave to amend their complaint.”

“Essentially,” the appellate judges found, “the Dole defendants argued … that the proposed amendments were made in bad faith to avoid the [Worker Compensation Law] exclusivity bar … and that granting leave to amend would further delay the action, cause prejudice, and prove futile….”

They rejected such arguments in strong language:

“At the time a complaint is filed, the parties are often uncertain about the facts and the law; and yet, prompt filing is encouraged and often required by a statute of limitations, laches, the need to preserve evidence and other such concerns. In recognition of these uncertainties, we … allow pleadings in the alternative – even if the alternatives are mutually exclusive. As the litigation progresses, and each party learns more about its case and that of its opponents, some allegations fall by the wayside as legally or factually unsupported. This rarely means that those allegations were brought in bad faith or that the pleading that contained them was a sham. Parties usually abandon claims because, over the passage of time and through diligent work, they have learned more about the available evidence and viable legal theories, and wish to shape their allegations to conform to these newly discovered realities. We do not call this process sham pleading; we call it litigation.”

Since the remand, there has not been any action to advance the litigation. Environment Hawai`i has been unable to reach any of the plaintiffs. They were represented by several different lawyers while the case was making its way through the lower court and the ICA. Elizabeth M. Dunne, the local counsel representing them most recently, according to the ICA record, is no longer practicing in Hawai`i.

Volume 25, Number 3 September 2014

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