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Settlement Slips Away For Nicaraguan Banana Workers

September 13, 2010

A judge in Los Angeles, California has handed down a landmark decision that essentially slams the door shut on banana plantation workers in Nicaragua and other Central American nations who have spent decades seeking damages for pesticide poisoning they suffered at the hands of US-owned multinationals.

Los Angeles County Superior Court Judge Victoria Chaney decided July 15 to dismiss a 2007 jury ruling against fresh fruit and vegetable giant Dole Food Co. Dole was supposed to have paid a US$1.58 million settlement to six Nicaraguan banana plantation workers allegedly made sterile from exposure to a toxic agrochemical called Nemagon.

Also marketed under the name Fumazone, Nemagon contains the dangerous compound dibromochloropropane (DCBP), which the US Environmental Protection Agency outlawed in 1979 after dozens of workers in the US plants that manufactured the pesticide were found to be sterile. For several years afterwards, however, the manufacturers, Dow Chemical Company and Shell Chemicals, continued to sell the product overseas, including in Central America, where Dole and other multinational fruit companies allegedly used DCBP until the mid 1980s.

Close But No Cigar

The original 2007 Tellez vs. Dole Food Co. jury ruling, over which Judge Chaney presided, was a vanguard decision, a first crack in the legal shield that had long made Dole and other multinationals basically immune to enforceable liability.

Central American banana workers had tried since the 1980s to make Dole, Dow and other US companies accountable for the widespread chemical poisoning. In US courts, however, the corporations were protected by a doctrine called forum non conveniens, by which cases involving foreign plaintiffs can be rejected on the grounds that it would be more convenient to carry out proceedings elsewhere, in places like Nicaragua. Unfortunately for banana workers, Nicaragua did not have a law in place under which to try the Nemagon cases (see NotiSur, 2005-04-21).

In 2000, following major worker mobilizations, Nicaragua finally established such a law (Ley 365), opening the door for a flurry of lawsuits – against Dole, Dow, Del Monte Foods and Chiquita Brands International, among others. Since then Nicaraguan courts have entered more than US$2 billion in verdicts against the corporations. The settlements proved unenforceable. The rulings did, however, allow Nicaraguan plaintiffs to finally sidestep the forum non conveniens doctrine and bring their cases directly before US courts.

A pioneer case, Tellez vs. Dole Food Co. went to trial in 2007. The suit involved a dozen Nicaraguan banana workers who claimed they were made sterile from exposure in the late 1970s and 1980s to DCBP. Attorneys for the plaintiffs argued that both Dole and Dow, which sold the toxic pesticide, were aware of the associated health risks yet allowed Nemagon to be used anyway.

On Nov. 5, the Los Angeles Superior Court jury ruled in favor of six of the plaintiffs, calling on Dole and Dell to pay damages of US$3.3 million. Ten days later, the same jury ordered Dole to pay five of the six men a total of US$2.5 million in punitive damages.

Overjoyed human rights advocates celebrated the watershed ruling, insisting it would usher in a new era of corporate responsibility and allow thousands of similar cases – filed by banana workers throughout Central America – to finally move forward in US courts.

The optimism, however, proved to be premature as Dole, with the help of a sympathetic judge, fought back. At the company’s behest, Chaney quickly overturned the jury’s punitive damage decision and reduced the original US$3.3 million settlement by half. In addition, she granted Dole’s request for a new trial with respect to one of the plaintiff’s testimony.

Two years later, Judge Chaney again decided in Dole’s favor when she threw out a pair of similar Nicaragua banana worker suits before they’d even made it to trial. Chaney dismissed the cases as phony, basing her decision on testimony by secret defense witnesses who shed light on a “pervasive conspiracy” involving “deliberate and egregious misconduct” by Nicaraguan lawyers. The attorneys recruited and coached the plaintiffs, some of whom weren’t even banana workers, Dole’s defense team claimed.

Encouraged by her 2009 dismissals, Dole petitioned Chaney to throw out the original Tellez ruling as well. After again reviewing testimony from the so-called “John Doe” witnesses, the judge decided that the Tellez case too was wrought with “blatant.” fraud. “The judgment is vacated,” Chaney said. “Retrial is not an option.”

Muddying The Waters

Lawyers for the plaintiffs leveled their own fraud allegations, saying Dole attorneys carried also recruited witnesses, bribing poor Nicaraguans to concoct false testimony and thus shed doubt on the case. Because Chaney sealed both the identities and testimonies of the witnesses – for their own protection, she argued – plaintiff attorneys were excluded from secret depositions and hearings and were thus never able to conduct their own interviews with the John Does.

Nor were they able to cross reference Dole’s witness list with a group of banana workers who in a May press conference in Nicaragua claimed they were “tricked” and “bribed” by the fruit company. One of the workers, Francisco Atenor Cano Centeno, 50, said he was promised a house and more than US$200,000 in exchange for testifying that he wasn’t really a banana worker and that his health exams had been altered. “They tricked us, they tricked all of us,” he said. “They only gave me US$300. That’s it.”

“These declarations make it clear that we never lied,” said Francisco Palacios, head of an organization called Asociación de Trabajadores Bananeros y Ex Bananeros de Nicaragua (ATBEN ). “Nemagon did hurt us. There are many sick people, and the tests have confirmed that.”

Dole, a veritable giant in the produce industry, celebrated Judge Chaney’s ruling – and with good reason. Not only did the decision exempt the corporation from a more than US$2 million payout, but it is also likely to discourage thousands of similar suits, by plaintiffs in Nicaragua and throughout Central America, from advancing in US courts.

“Today’s dismissal finally brings closure to these fraudulent Nicaraguan claims. They all lacked any semblance of credibility,” said C. Michael Carter, Dole’s executive vice president and general counsel. “These claims are a fraud on the California courts and never should have been brought in the first place.”

Steve Condie, one the plaintiff lawyers, promised to appeal the decision, but admitted Chaney’s ruling “has effectively destroyed any Nicaraguan’s ability to seek compensation in (US) court.” “We had a judge who had already decided that my clients and every American attorney opposing Dole in Nicaragua were part of a vast conspiracy,” he added.

One of the other plaintiff attorneys, Antonio Hernandez Ordenana, called the decision “immoral”, saying it “rides roughshod over the 2007 judgment that found Dole acted improperly by selling pesticides [in Nicaragua] that were prohibited under US laws.” In an interview with the Nicaraguan press, Hernandez was even more outspoken in his criticism. “[Judge Chaney] acted like a monster. She has a pact with Dole,” he said.

What About The Workers?

It may never be clear exactly who bribed whom or which lawyers tampered with which evidence. What is apparent is that with their respective fraud allegations, attorneys on both sides muddied the legal waters to such a degree as to nullify the whole case, which according to Judge Chaney, threatened the “sanctity of the system.”

Left out of the equation, sadly, were the workers themselves; thousands of whom – in Nicaragua and elsewhere – most likely were poisoned by a chemical that US companies, fully aware of its risks, sold and applied abroad.

Male sterility is just one of the presumed effects of Nemagon/ Fumazone, which according to studies, targets the endocrine system and can lead to menstrual disruptions, miscarriages and breast and uterine cancer in women. In both men and women, furthermore, DCBP exposure can cause migraines, blindness, weight loss, anxiety disorders, depression, skin rashes, liver damage, and kidney, stomach, and other cancers. The list goes on. In Nicaragua, more than 450 people have died of Nemagon-provoked cancer, reports a US-based Ngo called NicaNet.

“The decisions by Judge Chaney are important because they create a precedent for DBCP cases. They foment skepticism among other judges who could have cases come before them related to this chemical and, in general, they can influence other cases not related to DBCP where the plaintiffs come from the global south,” Vicent Boix, author of a book on Central American banana farming called “El parque de las hamacas” (The Park of the Hammocks,” explained in a 2009 interview with journalist Giorgio Trucchi.

[Sources: Reuters, 07/15/10; Business Wire (press releases), 07/12/10, 07/16/10; Bloomberg, 04/29/09, 10/21/09, 07/15/10; Los Angeles Times, 07/16/10; BBC, 07/16/10; Associated Press, 05/14/10, 07/15/10; Uprising Radio, 07/21/10; El Diario Nuevo (Nicaragua), 07/15/10; La Prensa (Nicaragua), 04/29/09; Eco Portal, 05/20/09; Golden Gate University Environmental Law Journal, 10/04/09]

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