From the LA Times, May 27:

Chinandega, Nicaragua — THE people crammed into the stifling basketball gym. They filled the court, lined the walls and tumbled beyond the doors onto the sun-blistered streets.

They had gathered to hear a promise of justice.

Many had spent their lives toiling on banana plantations that U.S. companies operated in this region some 30 years ago. By day, the workers had harvested bunches of fruit to ship to North American tables. At night, some had sprayed pesticide into the warm, humid air to protect the trees from insects and rot.

As the decades passed, the workers came to believe that the pesticide, called DBCP, had cost them their health. Prodded by U.S. lawyers, thousands joined lawsuits in the U.S. and Nicaragua alleging that the pesticide made them sterile.

The U.S. firms that sold and used the pesticide have never faced a U.S. jury trial over its use abroad. Last month, a Los Angeles attorney named Juan J. Dominguez stood before a sea of nearly 800 dark, hard faces and predicted that the day of reckoning was at hand.

"We are fighting multinational corporations. They are giants. And they are going to fall!" Dominguez thundered.

The crowd exploded. They leapt to their feet, waved their hats, shook fists in the air. "Viva! Viva!" they chanted...

For the first time, a U.S. jury will have the chance to weigh the accusation that Dole Food Co. knowingly used a pesticide manufactured by Dow Chemical Co. that sterilized workers in Latin America three decades ago.

The complexity, history and geographic spread of the case demonstrate how legal systems have failed to keep pace with the rapid movement of goods across international borders. Jurisdictional and procedural issues have repeatedly impeded attempts to sue U.S. companies in the United States for alleged wrongdoing in other countries.

"The question is where do we litigate these issues," said Alejandro Garro, a Columbia University law professor and expert in international law. "The answer is that we don't have a global law. We are building it on a case-by-case basis."

Dole, the Westlake Village-based food giant, and Dow, of Midland, Mich., deny the allegations. Both companies acknowledge that the pesticide DBCP has been linked to sterility in men exposed to it while manufacturing it in factories. And both companies acknowledge that the product was used in Nicaragua's banana fields.

But the companies contend that there is no proof that DBCP (dibromochloropropane) sterilized any field worker. The quantities of DBCP used were too small, and the open-air conditions too diffuse, to cause harm, the companies say.

"Dow views most of today's claims relative to the product as without merit," said Dow spokesman William Ghant. Dow acknowledged that the possibility of harm existed but said the product was safe as long as instructions were followed.

Dole said it applied DBCP in Nicaragua 13 times in the 1970s, with each spraying lasting about two weeks. The pesticide was an effective killer of tiny worms that caused the roots of banana plants to rot.

"There is no reliable scientific evidence at all that points to this pesticide causing any injury to field workers in the open air environment," said Michael Carter, Dole's general counsel. "There is no science to support that. None."

Earlier this month, Los Angeles County Superior Court Judge Victoria Chaney made a ruling that broadened the potential reach of the case.

Chaney linked Dominguez's case with four other pending lawsuits in Los Angeles involving sterility claims on behalf of more than 3,000 former banana workers from Costa Rica, Honduras, Guatemala and Panama. In addition to Dow and Dole, Del Monte Fresh Produce Inc., Chiquita Brands Inc. and Shell Oil Co. are named as defendants in those cases.

Cincinnati-based Chiquita declined comment on the lawsuit but said it used the chemical briefly in the 1970s in Panama and Costa Rica. Shell said it sold no DBCP in Central America after 1974 and that "few, if any" banana workers were harmed by its product. Del Monte said it used the pesticide briefly in Costa Rica and Guatemala and declined further comment.

In the middle of the dispute are this region's people. The case has spread its own kind of toxin, infecting every facet of life in this fertile bottomland wedged between volcanoes and the ocean on Nicaragua's Pacific Coast.

After 30 years of being told they have been poisoned, locals tend to blame the region's many health and environmental woes on DBCP.

They call themselves the afectados — the affected ones.

[...]

DBCP's toxicity first made news in 1977, when about three dozen factory workers at an Occidental Petroleum Corp. subsidiary in Lathrop, Calif., where pesticides were mixed, reported problems having children. Tests showed the factory workers had zero or below-normal sperm counts.

Within months, the EPA had suspended most uses of DBCP. Government hearings revealed that Dow and Shell Chemical Co., then a subsidiary of Shell Oil Co., the primary makers of DBCP, had long known about its dangers. Tests dating to the 1950s showed the chemical atrophied lab animals' testes.

Workers began filing lawsuits. In 1983, Duane Miller, a young Sacramento attorney, won a $4.9-million judgment against Dow on behalf of six Occidental workers. Two years later, the EPA permanently banned the use of DBCP in the United States.

It was the first skirmish in a legal war that soon spanned the globe.

U.S. law firms began suing in U.S. courts on behalf of workers in other countries — more than 50,000 plantation workers over 30 years in countries including the Philippines, Nicaragua, Costa Rica and Ivory Coast. The defendants have been the manufacturers of DBCP — Dow and Shell — and the fruit companies that used it: Dole, Del Monte and Chiquita.

Nearly every case ran into the legal doctrine forum non conveniens, which says lawsuits should be heard in the countries where the damage occurred. Lawyers for the companies convinced judges to transfer the cases to the countries of origin.

In practice, that stalled the lawsuits for years. Complex trials bogged down in ill-equipped Third World courts. Plaintiffs' law firms lacked money to pursue cases in foreign countries.

The companies settled some cases without admitting culpability. In 1992, several firms reached a settlement in which $20 million was paid to 1,000 Costa Ricans. In 1997, Dow and other companies paid $41.5 million to 26,000 workers worldwide.

The money was divided among thousands of plaintiffs. After attorneys' fees, some workers received no more than a few hundred dollars.

By the late 1990s, banana workers and attorneys were frustrated by their inability to get a case before a U.S. jury, with the potential for higher awards and, more important for some, a finding of wrongdoing by the companies.

New rules in court

Then Nicaragua changed the rules. In 2000, its legislators passed a special law to facilitate DBCP lawsuits.

The law stacked the deck in favor of the workers: DBCP was automatically considered the cause of sterility in any banana worker. Companies had to deposit $100,000 with Nicaraguan courts simply for the opportunity to defend themselves.

In December 2002, a Nicaraguan judge awarded nearly $490 million to about 450 workers. Other big judgments followed. Dow and Dole have so far blocked attempts to enforce the Nicaraguan judgments in U.S. courts.

The new law made Nicaragua hostile territory for Dow, Dole and other defendants. That created an opportunity for new lawsuits in the United States, which Dole and Dow no longer opposed.

Dominguez, perhaps best known for his ubiquitous personal-injury ads on Los Angeles buses, seized the opportunity. He partnered with Sacramento attorney Miller, who had filed the first DBCP lawsuits in the U.S. nearly 30 years earlier, and they filed suit in Los Angeles in 2004.

To build the case, Dominguez opened an office here, in the center of Nicaragua's banana belt. He connected with local union bosses, ran advertisements on the radio, even sponsored a local baseball team.

Thousands came forward to provide sperm samples in a back room set up in Dominguez's office, a yellow and brown one-story building near the main square here. The samples were analyzed by a laboratory paid for by the attorneys.

Dominguez and Miller filed legal briefs citing old corporate documents which, they said, showed that Dole officials were aware of the dangers. In a 1978 memo, a top Dole official warned that implementing all the procedures in a guide for safe use of DBCP was "well nigh impossible."

[More...]

From Bloomberg, April 24:

Dole Food Co., the world's largest fresh fruit and vegetables producer, persuaded a California judge to throw out two consolidated lawsuits by purported Nicaraguan banana workers because of lawyer misconduct.

Judge Victoria Chaney, at a hearing yesterday in state court in Los Angeles, agreed with Dole that the workers' claims that a pesticide used in the 1970s made them sterile should be dismissed because of a pattern of "deliberate and egregious misconduct" by lawyers in Nicaragua who recruited the plaintiffs.

"What has occurred here is not just a fraud perpetrated on this court, but a blatant extortion of the defendants," Chaney said. "I cannot in good conscience allow this case to continue."

At least 16,000 Latin American workers have sued in the U.S. in the past two decades seeking damages from chemical companies that made the pesticide dibromochloropropane, or DBCP, and growers that used it. Nicaraguan courts have entered more than $2 billion in verdicts against Dole and other U.S. companies, part of which plaintiffs' lawyers are seeking to have enforced in U.S. courts.

The two dismissed lawsuits were the second and third ones Chaney intended to try as bellwether cases that would provide guidance for settlements in other cases. After the first trial in 2007, which resulted in a partial verdict for the plaintiffs, evidence emerged of witness intimidation and obstruction of justice, the judge said.

"Serious Crimp"
Yesterday's ruling will put a "serious crimp" on efforts to enforce Nicaraguan damages awards in U.S. courts, Scott Edelman, a lawyer for Dole, said after the hearing. A federal judge in Florida stayed an enforcement action of a $98 million Nicaraguan award to await the outcome of this hearing, Edelman said.

Lawyers for Westlake Village, California-based Dole argued during a hearing that lawyers in Nicaragua recruited poor people who had never worked on a banana farm to file complaints, trained them to lie and faked lab tests and employment records.

Most of Dole's records in Nicaragua were destroyed in the aftermath of the Sandinista revolution, opening the door to the fraudulent claims, the company's lawyers said.

Retribution Feared
Nicaraguan witnesses for Dole whose faces were hidden and whose voices were distorted to prevent identification said in videotaped statements shown in court that they feared retribution if it became known they provided information to company investigators.

Michael Axline, a lawyer for the plaintiffs, had no comment on the ruling. The judge said Axline's firm was not at fault for the fraud that was committed by lawyers in Nicaragua.

Chaney said she will refer the case to the appropriate state bar associations and to prosecutors.

More than 40 related DBCP cases with thousands of plaintiffs from Costa Rica, Guatemala, Panama, Honduras and the Ivory Coast are pending in Los Angeles.

The cases are Mejia v. Dole Food, BC340049, and Rivera v. Dole Food, BC379820, California Superior Court, Los Angeles County (Los Angeles).

From Bloomberg News, Oct. 21:

Dole can't be forced to pay judgment by Nicaraguan court, U.S. judge rules
Dole Food Inc. can't be forced in the U.S. to pay a $97-million judgment ordered by a Nicaraguan court, a federal judge said.

The award, won four years ago by 150 Nicaraguans who said they suffered injuries from pesticides used at Dole's banana farms in the 1970s, can't be enforced because it was based on a law that violates international legal standards, U.S. District Judge Paul Huck in Miami said in a ruling Tuesday.

"The law under which this case was tried stripped defendants of their basic right in any adversarial proceeding to produce evidence in their favor and rebut the plaintiffs' claims," Huck said.

Dole argued at a four-day hearing before Huck that the 2001 Nicaraguan law is biased against defendants like itself. The statute was enacted to litigate injury claims against foreign corporations by banana workers and presumes the pesticide dibromochloropropane causes sterility and other injuries.

Nicaraguan courts since 2002 have issued judgments in 32 such suits for a total of $2.05 billion against Dole and pesticide makers, Dole said. The company said that if the plaintiffs had won in Miami, their lawyers would try in U.S. courts to collect the other judgments that the companies have refused to pay.

"This is a powerful ruling," said Theodore Boutrous Jr., a lawyer for Dole. "It will be a major deterrent to bringing other verdicts to the U.S."

Steven Marks, a Miami-based lawyer for the Nicaraguan workers, didn't immediately comment.

From AP, May 14:

MANAGUA — Several banana workers denied Friday they were part of a conspiracy to defraud Dole Foods Co. by falsely claiming in a damage lawsuit to have worked on a banana plantation and been made sterile by pesticides.

Seven workers at a news conference in Nicaragua, where the contamination allegedly occurred in the 1970s, accused Dole of having tricked or bribed them into casting doubt on claims in the suit that led to a $2.3 million judgment against the company.

They said they wrongly agreed to testify on behalf of Dole in a court case under way in Los Angeles that there had been a fraud in the recruiting or testing of some of the plaintiffs in the suit.

"They tricked and bribed humble farmworkers who, out of poverty, agreed to lie to overturn the ruling," said lawyer Antonio Hernandez. About 1,000 former workers gathered for the Friday event.

A judge in Los Angles is considering throwing out the 2007 damages award for workers exposed to the pesticide DBCP. Some of the workers involved in the U.S. lawsuit against Dole were later found either not to have been made sterile by pesticides or never to have worked at the company's plantations.

Francisco Cano Centeno, 50, who said he worked as a plantation foreman, said Dole offered him money to testify in the latest court case.

"What they wanted was for me to testify that the tests had been altered, that they had not worked on the banana plantation, and that for saying what they wanted, they would give me $225,000," Cano Centeno said.

"I agreed to lie because they know that we are poor and know how to use you. They took me to Costa Rica and there I said everything they asked of me."