Former American Lawyer Litigator of the Week Theodore Boutrous Jr. of Gibson, Dunn & Crutcher is an appellate specialist with a world of experience in pitching arguments to judicial panels. It's rare for him to undertake a cross-examination in trial court. But if the results he got for Dole Food at a Miami federal district court hearing involving the enforcement of a $98 million Nicaraguan toxic torts judgment are any guide, he should seriously consider making more appearances as a trial lawyer.
Dole and Dow Chemical were found liable in the Nicaraguan courts for allegedly exposing banana plantation workers to a pesticide that left them sterile. (The claims mirrored those tossed last April in a fire-breathing ruling by a Los Angeles state court judge who found plaintiffs lawyers had committed a fraud on the court; for the full backstory on how Dole and Gibson Dunn exposed the fraudulent claims check out this Corporate Counsel cover story by David Hechler.)
In the Miami enforcement action, Dole and Dow argued, among other things, that the Nicaraguan court that awarded the plaintiffs almost $100 million was not an impartial tribunal. And during Boutrous' cross-examination, one of the plaintiffs' expert witnesses conceded as much. In testimony Judge Paul Huck cited in his 60-page opinion, the plaintiffs' expert "admitted that some judges are not impartial or independent and emphasized the need to improve Nicaragua's judiciary," the judge wrote. "In fact, at several junctures in his testimony, [the expert] refused to vouch for the impartiality of the Nicaraguan judiciary when given the opportunity to do so.
Judge Huck declined to enforce the judgment against Dole and Dow, assailing the court system in Nicaragua. (He did not opine on the integrity of the plaintiffs or their counsel.) "The evidence before the court is that the judgment in this case did not arise out of proceedings that comported with the international concept of due process," the judge concluded. "It arose out of proceedings that the Nicaraguan trial court did not have jurisdiction to conduct. During those proceedings, the court applied a law that unfairly discriminates against a handful of foreign defendants with extraordinary procedures and presumptions found nowhere else in Nicaraguan law."
Boutrous told the Litigation Daily on Monday that the decision doesn't bode well for plaintiffs seeking to collect $2.1 billion in judgments they've won in similar cases in Nicaragua. Plaintiffs lawyer Steven Marks of Podhurst Orseck was not available for comment.
At the four-day September hearing in the enforcement action, Boutrous and Andrea Neuman of Gibson Dunn represented Dole; Michael Foradas of Kirkland & Ellis and Mike Breen, a solo practitioner, represented Dow.
This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.
