Dole Banana Worker Cases Illustrate the Conflicts Between “Good” Plaintiffs and “B

Here is an article reporting on Los Angeles Superior Court Judge Victoria Chaney ruling on the contentious issues regarding a jury verdict involving six people who claimed to have suffered personal injuries from having worked at a Dole banana plantation in Nicaragua. Judge Chaney overturned a jury verdict, and said she would issue a written opinion soon. The opinion probably will make for interesting reading.

The Dole situation illustrates the ways in which merits issues for "good" plaintiffs can be corrupted by the actions of "bad" plaintiffs. The ongoing saga also illustrates the amount of spin that is endemic to major mass tort cases, and why detailed coverage and questions would help readers make better judgments. For example, in prior chapters in this saga, Dole sued a filmmaker in Europe for defamation, but then dismissed the lawsuit after complaints by consumers and others.

The lawsuits arise from a situation that Dole created by using overseas a pesticide that was the subject of great concern in the US, and indeed was later banned in the US before Dole stopped using it in Nicarauga. Dole defends use of the pesticide on the grounds that doing so was still "legal" in Nicaragua. Decisions that are "legal" may still constitute bad decisions that may result in liability for negligent or willful conduct, and so Dole appears to be hardly an innocent. The following excerpts from a prior post link to an August 19, 2009 Wall Street Journal article by Steve Stecklow that provides an overview of why the issues exist at all. The facts reported by the WSJ do not paint a pretty picture of Dole, to say the least. But, a current reader about the "bad" plaintiffs might never know of those realities because the current article does not revisit the general factual setting. As per the WSJ:

" DBCP, short for dibromochloropropane, was widely used around the world in the 1960s and 1970s to control microscopic worms called nematodes that attack roots and destroy crops. "The first year after we used" the pesticide, "the bananas were huge," says Isaias Paz, who worked for years as a foreman on a Dole-operated banana plantation outside Chinandega. In 1977, California health officials discovered that workers at a DBCP manufacturing plant there had become sterile. Another manufacturer, Dow Chemical Co., one of Dole’s suppliers for Central America, stopped production and announced a recall.

Dole, which began using the pesticide in Nicaragua in 1973, had a contract to purchase DBCP for another two years. It threatened Dow with breach of contract for stopping deliveries, stating there was no evidence that plantation workers who apply DBCP had been rendered sterile, according to records in a lawsuit later filed by Dow against a Dole unit in Michigan circuit court. In 1978, Dow agreed to sell Dole some of its remaining stocks only after the fruit company agreed to hold Dow harmless from any injury claims.

In 1979, the U.S. Environmental Protection Agency banned DBCP in the U.S. for nearly all uses, including bananas, stating that "farm workers, pesticide applicators and the public at large…run varying degrees of risk of cancer, gene and chromosomal damage" and male infertility. Dole stopped using the pesticide in Nicaragua in 1980, according to Scott A. Edelman, a Dole attorney. The company’s "use of the remaining stocks" of DBCP from 1978 to 1980 "was legal," he says."

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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