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  • Kirk Hartley

Mass Torts, Media, and the Dole Chemical Exposure Cases

Here is a story regarding yet another aspect of the “mass tort” litigation industry – movies and other media drivers of public opinion. Remember – this situation is not unique. Indeed, other movies about “mass torts” were far bigger, such as Erin Brokovich and A Civil Action. Today, the mass tort wars are fought on many fronts and there are many forums for the battle over public opinion and perception, all of which can effect corporate reputation and the corporate stock price.

Recall also that there are two sides two every story, and that Dole’s actions were portrayed as less than laudable in this August 19, 2009 Wall Street Journal article by Steve Stecklow. Set out below are 1) the AP article and 2) key excerpts from the WSJ article.

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Dole withdraws lawsuit against Swedish filmmaker

By MALIN RISING (AP) – 4 hours ago

STOCKHOLM — Dole Foods is withdrawing a defamation lawsuit against a Swedish filmmaker after complaints in Sweden that it was trying to limit free speech, the company said Thursday. Dole had sued filmmaker Fredrik Gertten for showing his controversial documentary “Bananas!” despite a court ruling that said it was based on a fraud. The move sparked protests in Sweden, critics said the food company was trying to interfere with the freedom of speech. In a statement, Dole said it decided to withdraw the lawsuit “in light of the free speech concerns being expressed in Sweden, although it continues to believe in the merits of its case.” “While the filmmakers continue to show a film that is fundamentally flawed and contains many false statements we look forward to an open discussion with the filmmakers regarding the content of the film,” Dole’s Executive Vice President and General Counsel, C. Michael Carter said.

The documentary shows the alleged plight of Nicaraguan workers who say they were made sterile by a pesticide used at Dole banana plantations in the 1970s. It was completed before a fraud was uncovered showing that the workers were recruited by a lawyer to lie. That ruling has been appealed.

Earlier this week Swedish food chain ICA — a Dole customer — held a meeting with the company saying it felt the filmmaker had the right to express his side of the story. “We met their European division and … put forward our view on the matter,” ICA’s fruit and vegetables chief Lars Astrom told The Associated Press. “We said we thought they should withdraw the lawsuit and asked them to get back to us, and now they have done that.” The film’s producer, Margarete Jangard, welcomed Dole’s decision. “It feels fantastic that we have been able to make a difference, without an y money, only with the help of all the people who have supported us,” she told the AP.

The film was shown twice in June with a lengthy written disclaimer by Los Angeles Film Festival organizers who said it did not present a fair and accurate account but was worth showing as “a case study” of what happens when a story changes after a documentary is completed. Copyright © 2009 The Associated Press. All rights reserved.

______________________________________________________________ Excerpts from 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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