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Pesticide cases could be upended

An L.A. judge's dismissal of Nicaraguan banana workers' litigation against Dole puts numerous related cases in jeopardy.

July 12, 2009|Victoria Kim and Alan Zarembo

The unraveling of multimillion-dollar Los Angeles cases alleging that Nicaraguan men had been sterilized by pesticide exposure is now threatening to upend hundreds of other claims in U.S. courts, as judges examine charges that plaintiffs' lawyers orchestrated an extraordinary international fraud.

At the center of the claims is the pesticide DBCP and allegations that workers in banana plantations in Central America and Africa were harmed by exposure to the chemical.

For The Record
Los Angeles Times Sunday, July 19, 2009 Home Edition Main News Part A Page 4 National Desk 3 inches; 119 words Type of Material: Correction
Pesticide cases: A July 12 article in Section A described the unraveling of lawsuits brought against U.S. corporations by Nicaraguan men alleging chemical exposure left them sterile. The article said that a ruling by a Los Angeles County Superior Court judge finding fraud in the cases was having an effect on suits pending elsewhere in the country, including some in Florida. The article said the judge's ruling "implicates Provost and Umphrey, a Texas law firm representing plaintiffs in the Florida case along with Podhurst Orseck, in the alleged fraud." Podhurst Orseck, a firm based in Miami, is representing plaintiffs in Florida along with the Texas firm. The judge's ruling did not implicate Podhurst Orseck along with Provost and Umphrey.

In November 2007, a Los Angeles jury awarded $5.7 million to six Nicaraguan men who sued Dole Food Co. and chemical companies, alleging they had been made sterile by DBCP on Dole's plantations. The amount was later reduced by a judge and is now on appeal. The case will probably be thrown out entirely in the wake of a judge's findings of fraud in two related cases.

Those cases against Dole, Dow Chemical Co. and AMVAC Chemical Corp. were set to go to trial this year. Then, in April, Superior Court Judge Victoria Chaney dismissed the claims, ruling that U.S. lawyers and their Nicaraguan partners had concocted the cases through an audacious fraud, recruiting plaintiffs who had never worked on banana plantations, training them to lie on the witness stand and then waging a campaign of intimidation to prevent the scheme from being uncovered.

Chaney's ruling could now affect hundreds of similar claims by plaintiffs from Nicaragua, Panama, Guatemala, Honduras, Costa Rica and Ivory Coast that are pending in U.S. courts, legal experts said.

The judge's ruling has already become a focal point in a federal court in Florida, where a judge is considering whether Dole and four other multinational fruit and chemical firms should pay $97 million awarded to 151 plaintiffs by a court in Nicaragua in 2005. Those cases have been on hold since early this year, when the Florida judge decided to await the outcome here before taking further action.

Nicaraguan courts have awarded more than $2 billion to thousands of peasants with DBCP claims since 2001 -- but with no means to help them collect. The plaintiffs turned to the federal court in Florida to try to enforce the Nicaraguan judgment. If they prevail, it is likely that other winners in the Nicaraguan system will attempt to collect judgments in U.S. courts.

In addition to its effect on those cases, the Los Angeles ruling will probably dissuade other plaintiffs' attorneys and make other U.S. judges more skeptical about DBCP claims brought before their courts, experts said.

"Once you see fire, you look closer to see if there's smoke in other cases like this one," said Stephen Yeazell, a UCLA law professor who specializes in international civil litigation.

DBCP, or dibromochloropropane, was used on banana farms in the developing world until at least 1979, two years after it was linked to sperm damage in factory workers who produced the chemical.

Litigation over DBCP has become something of an international industry in recent years, with U.S. lawyers competing for clients abroad with the goal of getting U.S. courts to try their cases or enforce foreign judgments.

The claims of the farmworkers had been portrayed sympathetically in the media, including in a documentary film -- premiered at the Los Angeles Film Festival last month -- that told the story from the point of view of plaintiffs in Nicaragua. Last week, attorneys for Dole sued the Swedish filmmaker behind the documentary for slander and libel, arguing that Chaney's ruling proved it was inaccurate and defamatory.

Chaney's ruling could lead to the end of the workers' litigation against Dole entirely or, at minimum, severely cloud plaintiffs' cases. The cases in Los Angeles Superior Court, spearheaded by Juan Dominguez, a personal-injury lawyer best known for his ads on Los Angeles buses, consumed months of court time and millions of dollars. Dominguez is now being investigated by the California state bar, under an order from Chaney.

The scam, Chaney wrote, was part of a much wider fraud in Nicaragua -- a thriving industry of manufacturing plaintiffs to capitalize on a justice system rigged against multinational corporations.

At the center of that system, she wrote, is a law passed by the Nicaraguan government in 2001 that ordered the courts to fast-track DBCP claims.

Anybody claiming to have been exposed to the chemical on a banana farm who can produce a lab report showing he is sterile is entitled to damages. Evidence presentation is limited to eight days, after which the court has three days to decide the case. Defendants, such as Dole, must deposit millions of dollars in a trust for the right to defend themselves. They generally don't bother because it is almost impossible for them to win.

As the Florida case is set to restart, attorneys for Dole have already submitted Chaney's ruling to bolster their argument that the $97-million judgment in Nicaragua was a sham.

The plaintiffs' attorneys countered that Chaney's ruling is full of inaccuracies and overly broad.

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