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Banana workers get day in court

(Monday, Jan. 20, 2003 -- CropChoice news) -- DAVID GONZALEZ with SAMUEL LOEWENBERG, NY Times, 01/18/03:

CHINANDEGA, Nicaragua — Manuel Guido Montoya never had the children he once hoped would ease his workload and bring home a few extra dollars. Years ago, he tried to start a family, he said, but the woman left him once she realized he was sterile.

Like scores of men and women in this banana-growing region — and thousands of field workers throughout Central America, the Caribbean, Africa and the Philippines — Mr. Guido blames dibromochloropropane, or DBCP, for his medical problems. The pesticide was banned in much of the United States in 1977 when it was found to cause sterility, but continued to be used for years in the banana plantations that supply American supermarkets.

For two decades, the workers say, their efforts to win compensation for the damage done by DBCP — including sterility, cancer, and birth defects in children — have been frustrated by the legal tactics of American chemical and fruit companies. But now they are getting their day in court.

A ruling by a federal judge in New Orleans has opened the way for a lawsuit brought by 3,000 Central American banana workers seeking millions in damages, the first time one of these cases would be tried in the United States. The United States Supreme Court will hear arguments Wednesday on whether or not to allow other DBCP lawsuits to be tried in state courts.

And over the objections of the Bush administration, which has pressed the Nicaraguan government on behalf of the corporate defendants, courts here have begun awarding hundreds of millions of dollars in damages to banana workers.

The companies facing lawsuits are giants of the chemical and fruit industries: Shell Oil, Dow Chemical and Occidental Chemical; Dole Food, Del Monte Fresh Produce and Chiquita Brands International.

Earlier cases resulted in two major settlements. Starting in 1997, all of the companies except Dole settled with 26,000 former banana workers in Central America, Africa and the Philippines for $41 million. After lawyer fees were deducted, the workers received an average of $1,500 each. A 1992 settlement in Costa Rica netted $20 million for 1,000 workers.

But tens of thousands of other workers still have suits pending in courts in Central America, the Philippines and the United States. "Our fight is over whether we get to tell our story," said Scott Hendler, who represents more than 3,000 plaintiffs seeking trials in Louisiana and Hawaii.

The companies insist, in statements and regulatory filings, that they have no further responsibility after settling claims years ago. They say that many of the thousands of workers who are now suing were never even exposed to the chemical, and that it has not been proved to cause the cancers, birth defects or organ damage now attributed to it.

Shell said that its products were never sold in Nicaragua; in any event, it added, DBCP was always labeled with appropriate safety precautions. Dow disputes its liability and notes that its product had warning labels — but says the companies that used it did not always communicate proper warnings to their employees. Dole says that DBCP's safety was tested by the manufacturers.

The companies have consistently argued that the cases should be heard in the country where the purported injuries occurred — a tactic that for years effectively put the litigation in limbo.

"Courts in foreign countries are not up to the task of handling these kinds of cases," said Alejandro Garro, a professor of Latin American law at Columbia University who has testified on behalf of the banana workers. "These countries have 19th- century legal structures and have no system in place to deal with extremely technical class-action cases involving thousands of workers."

But that obstacle has crumbled in Nicaragua. Pressed by labor unions, the government in 2000 passed a law for DBCP victims that requires corporate defendants to put up a bond of $100,000 a case within three months of being served. In all, the law has led to the filing of over 400 cases seeking more than $9.6 billion in damages on behalf of 7,000 plaintiffs.

Last month, after a trial in which the companies refused to take part, a Managua court ordered Shell, Dole and Dow to pay $489.4 million to 450 workers. Lawyers for the plaintiffs say they will try to get American courts to enforce the judgment.

The companies say they will not pay. Shell issued a statement arguing that Nicaragua's courts has no jurisdiction over Shell because its headquarters are in the United States and it has no employees in Nicaragua. Dow said that the Nicaraguan law "offends virtually every notion Americans have of fair play and substantial justice," adding that the company will seek to have the Nicaraguan cases retried in the United States. Dole said that the court never obtained jurisdiction over it and that the law violated the Nicaraguan Constitution.

Both Dow and Dole say in their fall 2002 quarterly reports that they do not expect the DBCP lawsuits to have a material impact on their financial condition. Dole did note in a conference call with analysts last November that it had increased its legal reserves by more than $10 million because of the lawsuits.

Shell and Occidental developed the pesticide in the 1940's. Tests on rats showed that it caused testicular atrophy and other damage, but company scientists persuaded the Department of Agriculture in 1961 that DBCP was safe for humans, according to company documents obtained by plaintiffs' lawyers.

But in 1977, the Environmental Protection Agency suspended use of DBCP in most of the United States after a third of the workers at Occidental's manufacturing plant in Lathrop, Calif., were found to be sterile. The E.P.A. made the ban permanent in 1979, finding that the pesticide caused sterility in humans and an increased risk of cancer and genetic damage.

The lawsuits here and in the United States charge that the chemical companies shipped DBCP abroad and the growers used it despite knowing about its harmful effects even before the ban. Some of the lawsuits charge that it was used as late as 1985.

In Nicaragua, Mr. Guido, 47, and others said they used DBCP throughout the 1970's without gloves, masks or protective suits, while the fruit companies told them nothing about the potential hazards.

"Walking through the plantations, we breathed in the vapors," Mr. Guido said, recalling times when he and co-workers were drenched in the chemical. "I'd get headaches, a bloody nose, stomachaches. You put up with a lot of pain."

Scores of his neighbors are childless, like him, or have children born ill or with birth defects — stigmas in a society where large families are not only expected but also necessary for economic survival.

Lawyers in the Louisiana case have screened dozens of Costa Rican banana workers in preparation for trial. For several days in November a procession of middle-aged men shuffled through the community center in Guαpiles, a commercial hub nestled among plantations and national parks, where they provided detailed medical and work histories.

Like Mr. Guido and his neighbors in Nicaragua, Costa Rican workers said in interviews that they were never told that DBCP was harmful, adding that any warning labels on the chemical drums were useless, since they do not read English.

Dow supplied the pesticide to Standard Fruit, Dole's predecessor in the Costa Rican banana fields, after it was initially banned by the E.P.A., but insisted on being indemnified against damages, according to Scot Wheeler, a Dow spokesman. The agreement between the companies listed numerous safety and health precautions.

In interviews and court filings, lawyers for the Costa Rican workers said that the fruit company ignored some of the safety requirements or provided inadequate protective gear. At the time, they added, local authorities did not have the ability to assess potential dangers from pesticides and were reluctant to challenge the growers, who were — and remain — a powerful economic force providing thousands of much-needed jobs.

After years of demanding that all the DBCP lawsuits be heard in the Third World, the companies may be coming to regret their wish. They are attacking Nicaragua's DBCP victim's law on every front.

Dole, Dow and Shell have hired former Clinton and Reagan administration officials to enlist the Bush administration's aid in pressing Nicaragua to repeal the law. Similar laws in Ecuador and Guatemala, they noted, were recently declared unconstitutional.

The administration, agreeing that the Nicaraguan law unfairly aims at a few companies decades after the fact, has taken up the cause. Secretary of State Colin L. Powell is said to have raised the issue with Nicaragua's foreign minister, although a department spokesman would say only that the United States has raised the issue "at the highest levels."

Oliver Garza, who was the United States ambassador in Managua until September, conveyed his reservations to the Nicaraguan foreign ministry last March, the State Department said. Otto Reich, the State Department official who was in charge of Western Hemisphere affairs, also raised the issue during a visit to Nicaragua in September, according to diplomats from both countries.

"The State Department said, `You have some large American companies that have an interest in this; it is in your interest to find a solution,' " said Carlos Ulvert, the Nicaraguan ambassador to the United States.

Although Nicaragua says it wants to support the workers, thousands of them marched five days from Chinandega to Managua in November to press the government to make good on its promise by providing financial or medical help.

Nicaraguan officials expect more American pressure to repeal the law during the current Central American free trade talks. Dow, Shell and Dole have repeatedly told senior Nicaraguan officials that the law hurts the foreign investment climate in the country, among the most impoverished in the hemisphere.

The companies "implied that they would do everything short of declaring war," a senior Nicaraguan official said. "These companies come with a lot of stick and very little carrot. I am perfectly aware of the two-by-four they hold over our heads."

Ambassador Ulvert said his government favored an out-of-court settlement of the DBCP suits, but that any compromise needed to provide fair compensation to the workers. Dole, Shell and Dow declined to comment further on the talks, although Dole filings with the Securities and Exchange Commission say the company is discussing a settlement with 2,000 Honduran workers.

Even today, the best-paid Central American banana workers earn about $7,000 a year, with many earning half that. Many of those who claim they were injured by DBCP still work on other farms or get by doing odd jobs.

But money is not their foremost concern. Mario Zumbado, a Costa Rican who worked in Dole's Rio Frio fields in the 1970's and who may be a witness in the Louisiana case, said his life had been ruined by his years in the fields. He barely remembers the $20,000 he was awarded in the 1992 decision. Each of his five wives left him, he said, when they realized his sterility was irreversible.

"My destiny is up to God," said Mr. Zumbado, who is 53 and now works as a barber. "It may be to be continued, to be abandoned. That is the life you have when you are alone, with no children. Staying that way is not easy, without soul, life or heart."