Legal News

On Bananas, Pesticides and Lawyers Behaving Badly

By Ashby Jones

Allright, LBers. The NYT today gave you a must-read front-page legal story. But so did the WSJ.

We’ve blogged before on the craziness that is the litigation against Dole Food Co. brought by banana-plantation workers. (Click here, here and here.) But WSJ reporter Steve Stecklow takes it all to another level today, with his front-pager, which takes a comprehensive look at the situation.

In a word, it’s ugly — on a whole bunch of levels.

The backstory involves a use of pesticide on banana crops back in the 1960s and 1970s, which can cause sterility. Dole used the pesticide, made and supplied by Dow Chemical, in Nicaragua from 1973 to 1980.

More recently, emboldened by plaintiffs’ lawyers who traveled to Nicaragua and other countries to recruit potential plaintiffs, former plantation workers filed suits. Lots of suits, actually, that ultimately led to plaintiffs winning $2.1 billion in local judgments.

But a California judge recently ruled that plaintiffs and their lawyers deployed fraudulent tactics, which included faking sterility tests and using plaintiffs who never worked on banana plantations. As a result, actual workers who may have been hurt may receive nothing, even though Dole continued to use the pesticide from 1977 to 1980, after it had been linked definitively to male sterility.

That, in our mind, is what’s ultimately so compelling about the story — nobody comes out of it looking very good. First, you’ve got Dole, which, Stecklow reports, continued to use the pesticide — DBCP — after its manufacturer, Dow, had stopped producing it and announced a recall and after the U.S. Environmental Protection Agency had banned it for many uses in the U.S.

According to Scott A. Edelman, a Dole attorney at Gibson Dunn & Crutcher, the company stopped using the pesticide in 1980. The company’s use of its “remaining stocks” of DBCP from 1978 to 1980 “was legal,” says Edelman. (Edelman says there’s no evidence that banana-plantation workers received enough exposure to DBCP to become sterile.)

Then there are the plaintiffs’ lawyers. After 2000, plaintiffs lawyers rushed to Nicaragua in order to sign up plaintiffs. Lab tests were allegedly falsified to show higher rates of sterility than existed, and people who’d never worked on the plantations signed on as plaintiffs.

In 2002, Juan J. Dominguez, a Los Angeles personal-injury lawyer who advertises on buses and billboards for accident victims, also came to Chinandega, Nicaragua. He teamed up with a local lawyer, Antonio Hernández. They advertised on the radio seeking former banana workers, used paid “captains” to find plaintiffs, and set up their own sterility-testing lab inside the law office. Some plaintiffs say they were told they could win tens of thousands of dollars.

Dominguez now is under federal criminal investigation for his actions in the cases, according to a person familiar with the matter.

Meanwhile, along the back streets of Chinandega, many plaintiffs say they have lost all hope of ever collecting the giant settlements the lawyers said were possible. “We heard $200,000,” says 69-year-old Maria Theresa Cornejo. “I was going to make a beautiful house and not live in these shacks.”

Full post as published by Law Blog - WSJ.com on August 19, 2009 (boomark / email).