Pesticide lawsuits – a DBCP overview
DBCP case files

Pesticide lawsuits – a DBCP overview

Note: this article will not be updated. Please see the News section or the article BANANAS!* under fire - a timeline for the latest developments.

Background
During the 1970s, the pesticide DBCP (Dibromochloropropane) was used extensively on banana plantations all over the world. DBCP, originally synthesized in 1955, had many brand names, such as Nemagon and Fumazone (read more about DBCP here).

DBCP was used to protect many different crops: vegetables, nuts, fruits, beans and cotton. The target pest was nematodes, tiny worms living in the soil, feeding on the roots. The pesticide was either pumped directly into the ground, or sprayed into the air with irrigation guns.1

In 1977, employees who had handled DBCP at the Occidental Chemical plant in California were found to be sterile. Within months, the Environmental Protection Agency (EPA) had suspended most uses of the chemical.2

In 1983, Sacramento attorney Duane Miller won a $4.9 million judgement against Dow on behalf of six of the Occidental plant workers. Two years later, the EPA permanently banned the use of DBCP in the United States.3

In March 1990, the Texas court announced they would allow cases with a foreign location as place of incident. This was not possible before due to a legal doctrine called “forum non conveniens”, which said lawsuits should be heard in the countries where the damage occurred.4

In 1992, this shift in regulation made it possible for 1,000 Costa Rican workers and their lawyers to win a case against Standard fruit (now Dole). The corporation agreed to pay $20 million to the affected workers. After legal fees, each worker was left with $1,500 to $15,000, depending on individual circumstances.5

In 1993, a class-action lawsuit was files in Texas by more than 16,000 banana plantation workers from Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua and the Philippines. The target was several fruit and chemical companies, including Dole, Chiquita, Del Monte, Dow, Shell and Occidental. The companies agreed to pay a total of $41.5 million in 1997 to those who proved they were sterile. However, when all legal fees were paid, the affected workers received relatively small payments.6

 

The Nemagon movement

The Nicaraguan Nemagon movement is the strongest independent popular movement in modern Nicaragua. It started up in the early nineties when former banana workers started to share strange experiences. Children were born with birth defects, women had miscarriages and the men seemed to be sterile. The former workers also suffered from skin and kidney diseases.

Under the name ASOTRAEXDAN (Association of Workers and Former Workers with Claims against Nemagon), this movement started protesting. They demanded justice, health care and coffins to bury their dead. An in-depth story about this can be found in the Envio Magazine article Victims of Nemagon hit the road (June, 2005).

In 1999, ASOTRAEXDAN began to push for a law to be passed in Nicaragua that would allow Nicaraguan workers to sue foreign companies. The law, known as "law 364", was registered in January 2001. In short, law 364 was directly intended to give DBCP victims and their relatives the right to demand compensation from the companies who imported and applied the chemical in Nicaragua. The law was instantly criticized by the U.S. Embassy in Nicaragua. They claimed the law being unfair to the transnational companies, and in March 2002, the Nicaraguan attorney general submitted a movement to the Nicaraguan Supreme Court to declare law 364 unconstitutional.7

In December 2002, Nicaragua’s Supreme Court ordered Dow Chemical Co., Shell Chemical Co. and Dole Food Co. to pay $490 million in compensation to 583 Nicaraguan banana workers. This landmark case was lead by plaintiff attorneys Thomas Girardi and Walter Lack, the same lawyers who fought the Erin Brockovich toxicity suit (which later became the blockbuster movie starring Julia Roberts).8

Neither Dow nor any of the other companies participated in the trial. Dow said they will not pay and called the judgment “unenforceable” because the case was supposed to be moved to a U.S. court. They also pointed at the previous claim of law 364 being unconstitutional. One year later, in October 2003, a judge in Los Angeles ruled that the judgment could not be enforced against the companies because they weren’t properly named or legally notified in the Nicaraguan court action.9

In April 2007, Amvac Chemical Co., one of the companies who produced and sold DBCP in the 1970s, agreed to pay a total of $300,000 to 13 Nicaraguan workers. In court papers, the company called the agreement a “compromise of disputed claims” and denied any wrongdoing.10

 

Tellez versus Dole

In 2004, Los Angeles based attorney Juan Dominguez teamed up with Duane Miller. Dominguez travelled to Nicaragua and started to register workers claiming they had been afflicted by the chemical. Over 10,000 clients were registered in Nicaragua alone.

In July 2007, the case was brought up in the Los Angeles Superior Court. Twelve workers alleged sterilization and accused Dole Food Co. and Dow Chemical Co. of negligence and fraudulent concealment in using DBCP. Compared to the cases from ’92 and ’93, this case was unique since no previous DBCP case had ever been presented to jurors.11

The companies acknowledged that DBCP can be linked to male sterility and that the product was used in Nicaraguan banana plantations. Dow also acknowledged that the possibility of harm existed, but said the product was safe as long as instructions were followed. Also, they claimed the quantities of DBCP were too small, and the open-air conditions too diffuse to harm workers.12

In 1977, Dow stopped their production of DBCP. Not only did Dole admit in court to using DBCP after this date, it demanded Dow to continue delivering it, or else Dow would be in breach of contract.

In November, 2007, the Los Angeles jury awarded $3.2 million to six of the twelve workers in compensatory damages. Jurors found that DBCP was defective and that its risks outweighed its benefits. They also found that Dole acted with malice and actively concealed the danger from its own workers.

Dow’s share of the damages ranged from 20% to 40% of the awards to each worker. Dow contended that the chemical was not defective if administered properly, and Dole denied that it had fraudulently concealed the danger. Dole called the verdicts unjust and appealed.13

Two weeks later, the jury added an additional $2.5 million in punitive damages against Dole as punishment for concealing the dangers of DBCP.

One of Dole’s attorneys, Rick McKnight, said the verdict was ”a huge defeat” for the workers. ”It doesn’t even pay their costs, much less their bills”, he said.14

Duane Miller said the verdict sends an important message to Dole: ”It lets [them] know that they’re accountable for what they do, even if they do it south of our border”, he said. ”Our reputation as a country is partially dependent on the reputations of our corporations doing things overseas”.15

But the case was not closed. In March 2008, the punitive damages were reduced by Judge Victoria Chaney from $2.5 million to six workers – to $1.58 million to four workers. Chaney found that because Dole was a user of the pesticide, not a marketer, the firm could not be subjected to liability without fault. She also reasoned that punitive damages may not be used to punish ”a domestic corporation for injuries that occurred only in a foreign country”.16

Dole later appealed and the case is still (May, 2009) pending in California.

 

The fraud case

In November 2008, Juan Dominguez brought two other DBCP cases on behalf of former Nicaraguan banana workers to the Los Angeles Superior Court.17

Dole claimed that all but one of 11 plaintiffs in the two cases had never worked on banana plantations and that the men were paid and coached by their attorneys. Several witnesses testified on videotape, some of them anonymous (the “John Doe witnesses”) since they claimed they feared for their lives for exposing the fraud.

In April 2009, Judge Victoria Chaney dismissed the cases.

“We’ll never know if anybody in Nicaragua was actually injured or harmed by the alleged wrongful conduct of the defendants, and people will never have the opportunity to learn, since this fraud is so pervasive and extensive that it has forever contaminated even our own ability to ever know the truth”, Chaney said during the April 23 hearing.

In May 2009, Dole attorneys tried to stop the film BANANAS!* from being shown based on the trailer. The film contains interviews with Juan Dominguez and courtroom scenes from the Tellez trial.

Judge Chaney refused to stop the film.

“Just so we’re clear, I am not in any way going to make, and I will not consider, any request for prior restraint on free speech”, Chaney said during the May 8 hearing.

Note: this article will not be updated. Please see the News section or the article BANANAS!* under fire - a timeline for the latest developments.

 

Links to the available transcripts from the Los Angeles court hearings:

 

Articles about the fraud case:

 

Notes and references

  1. Nicaragua fights for “Death’s Dew” compensation
    Letta Tayler, Newsday.com, Dec 2, 2006
  2. Dibromochloropropane (DBCP): a review
    National Center for Biotechnology Information (NCBI)
  3. Plantation workers look for justice in the North
    Christian Miller, Los Angeles Times, May 7, 2007
  4. Plantation workers look for justice in the North
    Christian Miller, Los Angeles Times, May 7, 2007
  5. Pesticide Hazard in Costa Rica
    TED Case Studies
  6. Banana Workers Win Against Dow, Shell and Standard Fruit
    Pesticide Action Network, Jan 6, 2003
  7. Death Sentence – an honorable job
    Richard Leonardi, Mar 31, 2003
  8. L.A. attorneys may face punishment in Dole case
    Alexa Hyland, L.A. Business Journal, June 16, 2008
  9. Dole, Dow and Shell Win Dismissal of Suit
    Los Angeles Times, Oct 25, 2003
  10. Pesticide company settles sterility suit for $300,000
    Christian Miller, Los Angeles Times, Apr 16, 2007
  11. Pesticide trial begins against Dole and Dow
    Christian Miller, Los Angeles Times, Jul 20, 2007
  12. Plantation workers look for justice in the North
    Christian Miller, Los Angeles Times, May 7, 2007
  13. Dole must pay farmworkers $3.2 million
    John Spano, Los Angeles Times, Nov 6, 2007
  14. Dole must pay $2.5 million to farmhands
    John Spano, Los Angeles Times, Nov 16, 2007
  15. Dole must pay $2.5 million to farmhands
    John Spano, Los Angeles Times, Nov 16, 2007
  16. L.A. judge reduces Dole’s damages in pesticide case
    John Spano, Los Angeles Times, Mar 11, 2008
  17. Mejia, et al. v. Dole Food Company, Inc., et al. and Rivera, et al. v. Dole Food Company, Inc., et al.

33 Comments

There is nothing on this page that refers to the fraud that the attorney is accused of by the judge.

Good point Tom. This was written before the most recent events. We will soon publish an update about the fraud accusations. In the meantime, the LA Times website has great coverage about the case.

This article has now been updated with info about the fraud case along with links to other articles.

[...] it from circulating in film festivals and theaters, the experience of all those farm workers, a generation of them across the planet, and the indignities they suffered for the sake of a fruit company, will also be prevented from [...]

It would be great to get an update here of what came out of Juan Dominguez’s appearance before the Los Angeles County Superior Court in reference to the alleged contempt of court. And when will this documentary be available for purchase on DVD? Thanks for your work and updates. And whatever the real truth is, is seems that the ones who always end up losing are the farm workers. ¡Que vivan los bananer@s!

I am currently trying to research the corporate communications between Dole and a lobby group or watch dog, does any one know of such a group what is working to fight Dole Food Company for their miss practices? Do you know of any information that might help me? specifically in relation to their corporate communications and how both parties are handling the situation, any information would be super helpful!!

Bias shows crystal clear here. So much detail on the history of the cases here, and one 6 word line saying that it was determined to be a scam against Dole.

“Judge Victoria Chaney dismissed the cases.”

Hm…

“Bias shows crystal clear here. So much detail on the history of the cases here, and one 6 word line saying that it was determined to be a scam against Dole.”

It’s a pity that the page isn’t updated, considering that the verdict was based on 27 people giving their testimony anonymously! What kind of a legal system is that? And that Chaney is a Republican in CA, where Dole sponsors the Republican party, where she now has been appointed to the court of appeal (http://www.courtinfo.ca.gov/presscenter/newsreleases/NR36-09.PDF) by govenor Schwarzenegger (Rep).

Also look on the page:
http://www.bananasthemovie.com/fraud-case-witnesses-dole-bribed-us

I start to wonder whether it is California and not the Latin American countries that should be called “banana republic”. Ask yourself why the term evolved and how it comes that when you investigate these things adds from Dole (via Google) show up giving “accurate factual information” where one is told that this is not true since “Our people are our greatest asset…”. Sure.

(or maybe a convenient definition of “people”)

I’m rewriting my 1978 book Death On the Job and soon afterwards I met Josh Hanig and David Davis who made the film SONG OF THE CANARY. I want to update my discussion of this issue, and find out the results of the lawsuits by US workers who were either sterilized or who got brain cancer, and the comparable results of lawsuits by workers in Central and South America and in the Philippoines and other places. It seems obvious frm a cursory look at your website that workers OUTSIDE the U.S. have very few de facto rights when sterilized by a U.S. company. Dan Berman

My father is a claimant from Philippines and have died waiting for hes compensation.. may i inquire the result of the case filed by the Philippine Pioneer Banana Plantation Workers Inc.

Ahora está la película en Alemania - Bien hecho e importante - la resistencia a los poderosos!

How true that the legitimate claimant of the Philippines against the big company’s will get the compensation? it has been 14 yrs since the case has filed in court…

my father worked in dole phils. for 25 yrs as material and supplies supervisor he died last 2005 because of liver disease, he was also a claimant and died waiting for the compensation, is there really a plan to release these since

Hi, I am trying to contact the worker´s cooperation ASOTRAEXDAN. But I cannot find their contact dates anywhere. Does anybody know how I could contact them urgently? Thanks!

Ecxelente trabajo. Me pregunto si eso mismo sucede en las bananeras o cafetales de sur america. Por ejemplo lo que sucede en Peru donde destrullen la ecologia por oro o por petroleo. Y nadie puede decir nada porque tiene que alimentar su familias.

My niece just died 4days ago, with lymphoma stage-4 , 6 months after she was diagnosed. She worked with dole phils,chemicals with no safety gears, masks, etc.. All medical records are kept for reference.

I want to know if there was really a claim filed in court by the Philippine Pioneer Banana Workers Inc. (PPBWI) collected money from chemical victim claimants/members for fee processing of supporting documents. Many members have died already without receiving the claim. The said group are still accepting claimants from different banana plantation companies in whole Mindanao who used the DBCP chemicals from 1977-1983. Is there a latest update of the case?

Five of us in our family have worked on banana plantation in davao. We are one of the claimants, we patiently waited that our claims will be granted this year. My brother died due to liver cancer, he supervises the harvesting crew at the field. Any updates?

My father have worked on banana plantation in Davao. Among the family we are claimants of the chemical victor that we awaited for several years. My father and my mother are sickly causing the effects of the chemical being applied in the plantation not only of them mostly our neighbors, my relatives and my classmates they are died due to different diseases. Hope the American President will help this claim. If there is any update of the case please pls. send us…thanks & more power!!!

i am 37 yr. old my father a standard fruit corp.engrineering dept. supervisor dole philippines nowadays. during the period 1972 t0 1992 works my father works.in my childhold years i experience severe skin allergies which marks my whole legs tainted with scars. i got married 29 years old i am 37 yrs. now i have any children which i suffered low sperms count. doctors asked if i have been exposed to chemical yes because our house in dapco, panabo davao del norte philippines is very near the plant bodega and our house is very also in banana fields. i thought not only employees who would a chemical also the inhabitans and older sister cannot bare child. i hope there would be answer for question. that only employees who have the rights to claim such damage?

Good article! Thank you. This topic is very important for us. The law firm Mastagni, Holstedt, Amick, Miller and Johnsen were added during the primary supervisor of workers’ compensation Sacramento for 35 years, to enforce the rights of injured peace officers, firefighters, officials public safety or public employees and private employees in California. With recent changes to the remuneration of workers in California, our lawyers workers compensation Sacramento remains at the forefront of demand for workers compensation with new methods of independent medical evaluation and management of coordinated case.

just curious about the latest update of chemical claims of claimants from PPBWI if the cagayan court were already release the Court Order for release of claim in fact last appearance of the Pioneer representatives appeared last March 21 @ Cagayan de oro, my question is is there already a release order of claim coming from the court? Thanks & waiting your immediate response.

WE NEED IMMEDIATE RESPONSE SPECIALLY WE EXPECT A LOT FROM THAT CLAIM. ENROLLMENT IS GOING ON,IT HELPS A LOT FOR US CANT AFFORD SCHOOL. WE ARE DEPENDING ON IT. WE MADE EFFORTS LONG AGO AND BORROW MONEY TO ACCOMPLISH REQUIREMENTS.PLS RESPOND

[...] that they were suffering from problems having children, and other related health problems. They filed law suits against the companies involved with DBCP production and distribution, and DBCP is now no longer [...]

i’m one of the member of the philippine pioneer banana plantation workers inc and a claimant/victim of the chemicals want to know the real status and i want also to ask if there was really claimed to be receive by all members who are now waiting for a very very long time and some died waiting and hoping for the claim.

[...] that they were suffering from problems having children, and other related health problems. They filed law suits against the companies involved with DBCP production and distribution, and DBCP is now no longer [...]

It’s very simple to find out any topic on net as compared to books, as I found this paragraph at this web site.

if this chemical claim is true please as soon as possible send us a fresh update about the releasing of the said claim.

Im about to get confuse…..

There is another payment for processing the Philippine Pioneer Banana Workers Inc. (PPBWI). when this will be end?? It’s been a long long time, many claimants passed until now there is no results at all, always payment payment payment.. I think we have to do some action for this.

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we would like to know about the Progress of the case. we are the PeoPle in Panabo who was affected by the chemicals. .

we would like to know about the Progress of the case. we are the PeoPle in Panabo who was affected by the chemicals. . Please do inform us about the toPic.

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