Secrecy and justice in the ongoing saga of DBCP litigation

Abstract

Since the 1980s, banana workers from Central America and elsewhere have filed cases in the United States for sterility damages caused by exposure to the nematicide dibromochloropropane (DBCP) used during the1960s and 1970s. These plaintiffs’ efforts at holding fruit and chemical corporations accountable have been met with numerous obstacles. Many cases have been dismissed on the grounds that they would “more conveniently” be tried elsewhere, despite the fact that significant barriers exist to bringing such cases in many of these workers’ home countries. Using this strategy, defendants including Dole Food, Chiquita, Dow and Shell Chemical have been mostly successful in avoiding any penalty for their part in exposing banana workers to DBCP without adequate protection or information. In fact, although a few cases have settled, the first DBCP case did not reach the trial stage until 2007. In that case, the damages awarded to the six Nicaraguan banana workers were $5 million, an amount later reduced to $2·3 million. In 2010, Dole successfully sought to dismiss not only that case, but other cases brought by Nicaraguan plaintiffs. The company claimed that there was evidence of widespread fraud among Nicaraguan plaintiffs, attorneys, and judges, as well as lawyers based in the US. However, many of those accused of fraud did not have a chance to respond to those allegations or cross-examine their accusers. In addition, allegations of fraudulent behavior on the part defendants suggest that the story is more complicated. Instead of dismissing these cases — a defacto victory for the defendant — US courts should move forward with deciding these cases on their own merits; leaving juries to determine the veracity of plaintiffs and defendants’ claims.

Keywords:

• Dibromochloropropane
• Occupational health
• Transnational litigation
• Nicaragua
• United States of America

Notes

i For example, she said of Law 364, “The companion law that works with it, the civil procedure that goes with it, that requires, I believe, that the defendants answer within I think three days, pay a $ 15 million approximate bond in order to walk into the courtroom.” However, in many of the Nicaraguan judgments, the defendants were relieved from posting the bond. In the Osorio case which was taken to Miami for enforcement, the judgment clearly indicates that the enterprises did not post a bond. Judge Chaney also stated in her bench ruling that the DBCP trials lasted 14 days, making it impossible to present an adequate defense. She thought that defendants only had 3 days to answer, 8 to produce evidence and that in only 3 days later the judgment was rendered. In fact, the Osorio litigation Dole made its first appearance on August 5, 2003 and filed its answer on April 24, 2005. It is true there are 3 days to answer, but that term kicks in after all other summonses are finalized which, in this case, took several months. The 8 days concerning evidence are to offer the proof, once offered the time to produce it is not limited. In Osorio evidence was filed during a term that exceeded two months, from May 16 to July 25, 2005. Dole never complained in Nicaragua about not having time to produce evidence. Further, on June 2, 2005, Dole requested that the court issue a decision. Finally, judgment was rendered after the evidentiary term closed, when the court had several months to ponder the evidence.