Dole announced itself pleased by the fact that a Los Angeles Superior Court jury verdict in the Tellez case found that six of the 12 plaintiffs did not suffer any injury as a result of their alleged exposure to an ag chemical called DBCP on an independent banana farm in Nicaragua almost 30 years ago.
Doubtless it was less pleased by the award of $2.5 million in compensatory damages to the other six plaintiffs. Dole intends to appeal those verdicts.
In its announcement, Dole focused on the facts of the case:
“Dole has always believed that there is no scientific basis to support these alleged injuries,” said C. Michael Carter, Dole’s executive vice president and general counsel. “However, the six verdicts against Dole are flat wrong and the result of junk science, raw emotional appeals and false testimony. These six men were not injured by DBCP or Dole, and it is unjust for them to be awarded money from us. We are appealing to set the record straight.”
- All the independent scientific research demonstrates that, to be possibly injured, a man would have to be exposed to hundreds of times the amount of DBCP that an agricultural worker could possibly receive. The only possible injury caused by exposure to DBCP is male sterility, and even that effect can occur only at very high levels of exposure over extended periods of time.
- Some of the plaintiffs claimed to have been made sterile by DBCP even though they were still fertile after they left work on the farm.
- Some of the other plaintiffs were sterile before they came to work on the farm.
- Other plaintiffs had become sterile through common causes like serious alcoholism and sexually transmitted diseases.
Dole believes there is no reliable scientific basis for alleged injuries from the agricultural field application of DBCP. Nevertheless, Dole has consistently demonstrated its willingness to compensate fairly those male banana workers who meet minimum criteria consistent with reliable science, as an effort to resolve disputed claims — scientific research indicates that DBCP does not have any harmful effects in women. As in Honduras, where Dole, worker unions and the Government of Honduras have implemented a successful worker program to deal with DBCP claims, Dole is committed to finding a prompt resolution to DBCP claims in Nicaragua, and is prepared to discuss a structured worker program with science-based criteria.
Dole is prepared to litigate cases anywhere in the world where there is a fair and independent judicial process and where resolution cannot be reached. Dole will not be intimidated by ugly accusations, fraudulent claims, junk science, or threats from U.S. trial lawyers, and is prepared to fully litigate each and every case.
The Pundit, however, is more concerned with the abuse of the US judicial system represented by this case. Note that this is not the end of things. The Court could still award punitive damages.
Our questions is this: Whoever may be right or wrong, what in the world is a dispute between a Nicaraguan banana farm and Nicaraguan farm workers doing being heard in a U.S. courtroom?
We are not the only one who has asked this question. The Wall Street Journal ran an editorial that raised the same issue:
Lawyers Without Borders
How did it come to pass that a lawsuit concerning banana farmers in Nicaragua is being adjudicated in a state court in downtown Los Angeles? Just the latest abuse of the U.S. civil justice system, courtesy of the plaintiffs bar.
The jury trial got underway earlier this month and involves 12 male plantation workers who allege that exposure to the pesticide DBCP in the mid-1970s in Nicaragua left them sterile. Dole Food, which contracted with the plantations where DBCP was used, is the lead defendant, even though the Nicaraguan government was already spraying the pesticide long before Dole entered the picture.
There’s no evidence that the farm workers were ever exposed to harmful levels of DBCP, or that the level of exposure they did experience causes sterility or any other health problems in humans. But there is evidence that some plaintiffs were already sterile before exposure, while others had children afterward. It’s worth noting as well that DBCP, which kills the microscopic worms that attack plant roots, was also approved at the time for use in the U.S., Europe, Australia and South America. Which is to say that untold millions were exposed to the chemical without incident. But never mind all that.
The real mystery is why this case is being heard in a U.S. courtroom. These are foreign nationals, after all, with no connection to our civil justice system. Prior to the start of the trial, the plaintiffs had never even set foot in the U.S. And the claims being brought on their behalf concern lawful conduct that took place in another country 30 years ago.
Unfortunately, the Dole case isn’t anomalous. U.S. class-action firms best known for tobacco and asbestos suits increasingly are reaching out across the globe to drag all manner of claims into American courts. Back in 2000, the Australian-based mining giant, Rio Tinto, was sued by a Seattle-based plaintiffs law firm, Hagens Berman, on behalf of South Pacific Islanders who claim that Rio conspired with the government of Papua New Guinea to quell civil resistance to a mining operation in the 1980s. The suit, which continues, was allowed to be brought in the U.S. District Court in San Francisco because Rio happens to have a subsidiary headquartered in Los Angeles.
Earlier this month a U.S. district judge in Miami dismissed a lawsuit filed against two United Arab Emirate sheiks on behalf of thousands of children who were forced to race camels in various Persian Gulf countries. Although no forced camel jockeying actually took place in the U.S., the plaintiffs attorneys argued that the court had jurisdiction because the defendants had interests in racehorses in the Miami area. Motley Rice, the U.S. law firm that brought the suit (on a contingency-fee basis, of course), is reportedly considering whether to appeal the decision or try another state.
As a practical matter, these cases consume limited judicial resources and clog our courts with claims that have no connection to anything that actually occurred in the U.S. But they also raise Constitutional issues. The plaintiffs in the Dole case are seeking not only compensatory damages but also punitive damages for conduct that has no connection to the state.
Why should a jury in Los Angeles be allowed to impose punitive damages against a company for actions that were legal in Nicaragua and caused no injuries in California? In its 2003 State Farm vs. Campbell decision, among others, the Supreme Court made clear that the Constitution precludes a state from “punish[ing] a defendant for conduct that may have been lawful where it occurred.”
The tort bar won’t police itself, so it falls to others to do the job. Congress, state legislatures and courts could take steps to create higher jurisdictional hurdles and limit the ability of plaintiffs lawyers to seek punitive damages. That won’t stop every abuse, but it’s a start.
Many things happen in the world — but U.S. courts have neither the capacity nor the competency to try every wrong the planet might present. Besides, cases such as this challenge the very nature of law itself — because the behavior Dole is accused of was completely legal in Nicaragua 30 years ago.
Dole is obviously concerned with its image and so has tried to help legitimate victims, but if the principle is established that anyone, anywhere, can bring a lawsuit anyplace, then there will never be a way for anyone to ascertain if his behavior is legal or not, because there will never be a single set of laws that one can say applies to a given situation.
We hope the case goes to the US Supreme Court and that the Court vacates the decision on the grounds that a US court lacks jurisdiction in such matters.