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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

"It's amazing to me that a judge can criticize in a sweeping way an entire country's integrity and make a ruling on every individual's honesty and integrity, even those who aren't before her," said plaintiffs' attorney Steven Marks of the Miami-based firm Podhurst Orseck.

Chaney's ruling implicates Provost and Umphrey, a Texas law firm representing plaintiffs in the Florida case along with Podhurst Orseck, in the alleged fraud in Nicaragua. Chaney wrote that one of its attorneys, Mark Sparks, was present in a 2003 meeting in Nicaragua at which lawyers, medical laboratory officials and a judge set out a plan to manufacture evidence and bolster cases in the Nicaraguan courts.

In court filings, Sparks and his firm denied he ever attended such a meeting, and argued that Chaney's ruling was fundamentally unfair because it did not offer them the right to defend themselves.

The ruling was based primarily on information from witnesses whose names and unredacted testimony to Dole lawyers remain sealed under an order by Chaney, who became convinced that their lives would be in danger if their identities were made public.

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 any case, the plaintiffs' lawyers in the Florida case said they had no involvement in the California cases.

Sparks and his firm released a statement saying they "are confident that our investigation, testing and diagnosis protocols were superior to other firms in this litigation."

The battle over DBCP is part of a murky debate in international law about how justice should be administered when a company is accused of wrongdoing on foreign soil.

International law prefers that cases be tried where they happen. But many courts in the Third World are ill-equipped to handle complex cases, have little authority to enforce judgments and often do not afford attorneys the powers they would have in U.S. courts to gather evidence.

"There are alleged international, global wrongful acts, but we don't have a proper forum, and it's ping-pong between countries, between the courts of developing and developed countries," said Alejandro Garro, a Columbia University law professor who has testified on behalf of banana workers.

Before the Nicaraguan fast-track law went into effect, multinational defendants were generally able to keep their cases out of U.S. courts and stalled in the Nicaraguan system.

However, the fast-track law made the prospect of a Nicaraguan trial so unappealing to multinational corporations that they began agreeing to have such cases heard in U.S. courts.

That, of course, is no guarantee of success.

In addition to the cases from Nicaragua, a DBCP lawsuit brought before Chaney by nearly 700 men from Ivory Coast is also unraveling.

In April, a man claiming to represent workers there contacted Dole, offering information about the plaintiffs' lawyer in that case, Raphael Metzger.

"We are ready to collaborate with any initiative to expose and prosecute corrupt lawyers," Jean Pierre Nassoue wrote in an e-mail to a Dole executive.

Attorneys for Dole asked Chaney for permission to look into Nassoue's claims and bring him to the U.S. to testify. Metzger objected, saying Nassoue was a dangerous, disgruntled former legal assistant who was trying to blackmail him for more money.

In June, Metzger indicated that he would like to withdraw as the plaintiffs' counsel on the case, telling the court that the allegations by Nassoue makes it impossible for his firm to effectively represent them.


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