TIMES INVESTIGATION
After
years of toil in Central American fields where they say pesticide use made them
sterile, they're suing Dow, Dole and other firms in L.A.
By T. Christian Miller, Times Staff Writer
May 27, 2007
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Chinandega,
Nicaragua — THE people crammed into the stifling basketball gym. They filled
the court, lined the walls and tumbled beyond the doors onto the sun-blistered
streets.
They had gathered to hear a promise of justice.
Many had spent their lives toiling on banana plantations that U.S. companies
operated in this region some 30 years ago. By day, the workers had harvested
bunches of fruit to ship to North American tables. At night, some had sprayed
pesticide into the warm, humid air to protect the trees from insects and rot.
As the decades passed, the workers came to believe that the pesticide, called
DBCP, had cost them their health. Prodded by U.S. lawyers, thousands joined
lawsuits in the U.S. and Nicaragua alleging that the pesticide made them
sterile.
The U.S. firms that sold and used the pesticide have never faced a U.S. jury
trial over its use abroad. Last month, a Los Angeles attorney named Juan J.
Dominguez stood before a sea of nearly 800 dark, hard faces and predicted that
the day of reckoning was at hand.
"We are fighting multinational corporations. They are giants. And they are
going to fall!" Dominguez thundered.
The crowd exploded. They leapt to their feet, waved their hats, shook fists in
the air. "Viva! Viva!" they chanted.
The scene last month foreshadowed a legal drama set to play out in a Los
Angeles courtroom this summer, when a lawsuit filed by Dominguez and his
partners could end a struggle that has sprawled across three decades and
courtrooms on four continents.
For the first time, a U.S. jury will have the chance to weigh the accusation
that Dole Food Co. knowingly used a pesticide manufactured by Dow Chemical Co.
that sterilized workers in Latin America three decades ago.
The complexity, history and geographic spread of the case demonstrate how legal
systems have failed to keep pace with the rapid movement of goods across
international borders. Jurisdictional and procedural issues have repeatedly
impeded attempts to sue U.S. companies in the United States for alleged
wrongdoing in other countries.
"The question is where do we litigate these issues," said Alejandro
Garro, a Columbia University law professor and expert in international law.
"The answer is that we don't have a global law. We are building it on a
case-by-case basis."
Dole, the Westlake Village-based food giant, and Dow, of Midland, Mich., deny
the allegations. Both companies acknowledge that the pesticide DBCP has been
linked to sterility in men exposed to it while manufacturing it in factories.
And both companies acknowledge that the product was used in Nicaragua's banana
fields.
But the companies contend that there is no proof that DBCP
(dibromochloropropane) sterilized any field worker. The quantities of DBCP used
were too small, and the open-air conditions too diffuse, to cause harm, the
companies say.
"Dow views most of today's claims relative to the product as without
merit," said Dow spokesman William Ghant. Dow acknowledged that the
possibility of harm existed but said the product was safe as long as
instructions were followed.
Dole said it applied DBCP in Nicaragua 13 times in the 1970s, with each
spraying lasting about two weeks. The pesticide was an effective killer of tiny
worms that caused the roots of banana plants to rot.
"There is no reliable scientific evidence at all that points to this
pesticide causing any injury to field workers in the open air
environment," said Michael Carter, Dole's general counsel. "There is
no science to support that. None."
Earlier this month, Los Angeles County Superior Court Judge Victoria Chaney
made a ruling that broadened the potential reach of the case.
Chaney linked Dominguez's case with four other pending lawsuits in Los Angeles
involving sterility claims on behalf of more than 3,000 former banana workers
from Costa Rica, Honduras, Guatemala and Panama. In addition to Dow and Dole,
Del Monte Fresh Produce Inc., Chiquita Brands Inc. and Shell Oil Co. are named
as defendants in those cases.
Cincinnati-based Chiquita declined comment on the lawsuit but said it used the
chemical briefly in the 1970s in Panama and Costa Rica. Shell said it sold no
DBCP in Central America after 1974 and that "few, if any" banana
workers were harmed by its product. Del Monte said it used the pesticide
briefly in Costa Rica and Guatemala and declined further comment.
In the middle of the dispute are this region's people. The case has spread its
own kind of toxin, infecting every facet of life in this fertile bottomland
wedged between volcanoes and the ocean on Nicaragua's Pacific Coast.
After 30 years of being told they have been poisoned, locals tend to blame the
region's many health and environmental woes on DBCP.
They call themselves the afectados — the affected ones.
13 men, 1 lawsuit
Jose Adolfo Tellez never wanted to be a legal pioneer.
With dark hair and a broad, round face, Tellez lives in a two-room cinder-block
house in Chichigalpa, a town in the heart of Nicaragua's banana zone.
Early each morning he rides his battered black mountain bike seven blocks along
rutted streets to the central market, a chaotic warren of shops where beef
hangs in strips and baskets of papaya are lighted by shafts of sunlight.
Tellez haggles over prices before the day's damp heat descends. Heading home,
he spends a cordoba — about 5 cents — for a brick-sized block of ice to chill
his meat and vegetables.
His main job is tending to his mother, 80, who shuffles across the home's
concrete floors with a donated walker. There is no one else to do the job.
Tellez, 58, has no children, no wife, to help him.
He blames DBCP.
Tellez is the lead plaintiff in Tellez vs. Dole, scheduled for trial July 2. He
joins a dozen other named plaintiffs, all of whom have had tests administered
by their lawyers showing that their semen does not contain sperm.
Tellez believes that he became sterile after going to work outside the small
town of Posoltega, 15 miles southeast of here, where Dole began operations in
Nicaragua in the late 1960s.
On the plantation, where long, green alleys of banana trees stretched across
more than 1,400 acres, he harvested bananas, cut weeds from the plants, trimmed
leaves and hauled irrigation tubes.
Tellez said he was never given protective gear while working in the fields.
Nor, he said, did anyone tell him that DBCP could cause sterility.
"They told us to go to work, and we would go to work," Tellez said.
Tellez married, but he and his wife were unable to have children. She
eventually left him to live with another man, Tellez said, and soon had a
child.
Tellez had thought his wife had the problem. But tests showed he was sterile.
In the macho culture of rural Nicaragua, children are a measure of wealth and
power. Tellez had neither. He was labeled a buey — slang for a castrated
bull.
"It demoralized me," he said. "I felt like a useless man."
Sterility and pesticide
Epidemiological studies have confirmed that DBCP causes sterility in human
males, according to the U.S. Agency for Toxic Substances and Disease Registry.
Evidence of other human health effects is less clear. However, lab animals
exposed to DBCP have developed stomach and lung cancers and kidney and brain
damage, according to the agency.
DBCP's toxicity first made news in 1977, when about three dozen factory workers
at an Occidental Petroleum Corp. subsidiary in Lathrop, Calif., where
pesticides were mixed, reported problems having children. Tests showed the
factory workers had zero or below-normal sperm counts.
Within months, the EPA had suspended most uses of DBCP. Government hearings
revealed that Dow and Shell Chemical Co., then a subsidiary of Shell Oil Co.,
the primary makers of DBCP, had long known about its dangers. Tests dating to
the 1950s showed the chemical atrophied lab animals' testes.
Workers began filing lawsuits. In 1983, Duane Miller, a young Sacramento
attorney, won a $4.9-million judgment against Dow on behalf of six Occidental
workers. Two years later, the EPA permanently banned the use of DBCP in the
United States.
It was the first skirmish in a legal war that soon spanned the globe.
U.S. law firms began suing in U.S. courts on behalf of workers in other
countries — more than 50,000 plantation workers over 30 years in countries
including the Philippines, Nicaragua, Costa Rica and Ivory Coast. The
defendants have been the manufacturers of DBCP — Dow and Shell — and the fruit
companies that used it: Dole, Del Monte and Chiquita.
Nearly every case ran into the legal doctrine forum non conveniens,
which says lawsuits should be heard in the countries where the damage occurred.
Lawyers for the companies convinced judges to transfer the cases to the
countries of origin.
In practice, that stalled the lawsuits for years. Complex trials bogged down in
ill-equipped Third World courts. Plaintiffs' law firms lacked money to pursue
cases in foreign countries.
The companies settled some cases without admitting culpability. In 1992,
several firms reached a settlement in which $20 million was paid to 1,000 Costa
Ricans. In 1997, Dow and other companies paid $41.5 million to 26,000 workers
worldwide.
The money was divided among thousands of plaintiffs. After attorneys' fees,
some workers received no more than a few hundred dollars.
By the late 1990s, banana workers and attorneys were frustrated by their
inability to get a case before a U.S. jury, with the potential for higher
awards and, more important for some, a finding of wrongdoing by the companies.
New rules in court
Then Nicaragua changed the rules. In 2000, its legislators passed a special
law to facilitate DBCP lawsuits.
The law stacked the deck in favor of the workers: DBCP was automatically
considered the cause of sterility in any banana worker. Companies had to
deposit $100,000 with Nicaraguan courts simply for the opportunity to defend
themselves.
In December 2002, a Nicaraguan judge awarded nearly $490 million to about
450 workers. Other big judgments followed. Dow and Dole have so far blocked
attempts to enforce the Nicaraguan judgments in U.S. courts.
The new law made Nicaragua hostile territory for Dow, Dole and other
defendants. That created an opportunity for new lawsuits in the United States,
which Dole and Dow no longer opposed.
Dominguez, perhaps best known for his ubiquitous personal-injury ads on Los
Angeles buses, seized the opportunity. He partnered with Sacramento attorney
Miller, who had filed the first DBCP lawsuits in the U.S. nearly 30 years
earlier, and they filed suit in Los Angeles in 2004.
To build the case, Dominguez opened an office here, in the center of
Nicaragua's banana belt. He connected with local union bosses, ran
advertisements on the radio, even sponsored a local baseball team.
Thousands came forward to provide sperm samples in a back room set up in
Dominguez's office, a yellow and brown one-story building near the main square
here. The samples were analyzed by a laboratory paid for by the attorneys.
Dominguez and Miller filed legal briefs citing old corporate documents which,
they said, showed that Dole officials were aware of the dangers. In a 1978
memo, a top Dole official warned that implementing all the procedures in a
guide for safe use of DBCP was "well nigh impossible."
"Did they warn you about this? No," Dominguez told another crowd at a
recent rally. "Did they put you in danger? Yes."
Although only 13 plaintiffs have been named in the U.S. suit, a victory could
result in settlements for the thousands of other former banana workers who can
show sterility problems. An original defendant in the Tellez case, Amvac
Chemical Corp. of Newport Beach, settled for $300,000 last month.
Dominguez has registered about 12,000 clients in Nicaragua alone. Worldwide,
the number of possible clients is estimated to be hundreds of thousands.
Dole and Dow have long experience with such lawsuits. In some instances, the
companies have been able to show that supposedly infertile men fathered
children. The companies have also discovered plaintiffs who did not work on
farms that used DBCP.
Dole has settled some cases directly with workers. It recently announced a
program in Honduras to pay up to $5,800 to banana workers who agreed to drop
their claims against the company. The company is seeking a similar accord in
Nicaragua. Such settlements, Dole said, were not admissions of wrongdoing.
"We don't want to spend our lives forever dealing with this, so the
company has adopted an approach to find a reasonable resolution to these
pending claims," said Carter, Dole's general counsel.
History of contamination
It is not easy to show that DBCP caused a worker's sterility or health
problems, especially in a poor country like Nicaragua.
The region around Chinandega has long been dominated by agriculture, producing
cotton, sugar cane and other crops. For decades, growers — from both the United
States and Nicaragua — sprayed DDT, DBCP and other highly toxic pesticides,
many linked to developmental or health problems.
Seven studies conducted from 1995 to 2002 found contamination in community
wells. Locals routinely drink water tainted with pesticides, said Valeria
Delgado, an investigator at Nicaragua's Center for the Investigation of Water.
None of the studies tested specifically for DBCP.
Studies have also found that water supplies are laced with fecal matter and
other pollutants. Medical care is scarce. Diet is subsistence level. Many of
the men drink heavily.
Medical officials acknowledge that they have no proof, just strong suspicions,
that the town's ills are linked to pesticides.
"If you work in this environment and you wind up sick, I can presume it's
an effect of chemical intoxication," said Yolanda Garcia, a toxicologist
at the local clinic. "I can presume, but I can't prove."
Death of a mother
All across Nicaragua's banana region, in churches and classrooms, at funerals
and bars, DBCP is blamed for every illness.
One hot day last August, Leticia Vidabre, 63, lay dying on a mattress on the
concrete patio behind her house.
A neighbor waved a folded piece of paper to keep off the flies. Acrid smoke
wafted from a nearby cooking fire. Next door, salsa music blared.
Slipping in and out of consciousness, Vidabre struggled to tell her story. She
worked in the packing section at one of Dole's plantations, she said, putting
bananas into boxes for shipping to the United States.
She said she believed that washing the bananas and drinking water on the
plantations had exposed her to DBCP. After 16 years of working on a plantation
called San Pablo, Vidabre began to feel sick. Her back hurt. Headaches were
constant. She quit and became a housewife.
"When I started work at San Pablo, I was healthy. When I left, I was in a
bad way," she said.
Last year, a doctor told her that her kidneys were not functioning well. A
large woman with heavy lips and eyes, Vidabre began spending her days in bed.
"Those bananas weren't for us," she said. "But so many of us
have died."
A month later, on Sept. 6, Vidabre died. She was buried in the town cemetery,
just down the road from the old banana plantation.
Her relatives blamed the pesticide. But nobody really knew.
t.christian.miller@latimes.com