Litigation Fraud Allegations Hotly Disputed in Dole Banana Case

Amanda Bronstad

The National Law Journal

02-01-2010

After months of silence, plaintiffs lawyers have been speaking out and adamantly denying allegations that fraud underlies a raft of lawsuits accusing Dole Food Co. Inc. of poisoning workers with the pesticide DBCP on banana plantations in Central America and elsewhere.

Most of the fraud allegations emerged after former Los Angeles County, Calif., Superior Court Judge Victoria Chaney issued a written order in June concluding that plaintiffs lawyers in Nicaraguan DBCP cases had hired "captains" to recruit and coach workers who joined the cases as plaintiffs. They also fabricated work certificates and falsified medical records, she said.

"Because of the interrelationships of the law firms and plaintiff groups in all DBCP cases in and emanating from Nicaragua, the taint of the fraud proven in this case permeates and discredits all such cases," Chaney wrote.

In interviews, a number of attorneys pressing DBCP claims argued that Chaney's conclusions were unfair and a distraction from genuine claims involving a a pesticide that Dole used abroad after it was banned in the United States because of links to health problems including sterility.

"Their defense in the case was not that they didn't have a terrible product that harmed a bunch of people, but their defense was: 'Let's screw over Girardi,' " Los Angeles plaintiffs attorney Tom Girardi, one of the lawyers caught up in the controversy, said of Dole's attorneys. "And believe me, they did great."

"The dramatic things Judge Chaney said about Amer ican lawyers, specifically, are not true," said Steve Condie, a solo practitioner in Oakland, Calif., who now represents Nicaraguan plaintiffs in a case in which Dole's lawyers have petitioned to vacate a $5.8 million jury verdict based on Chaney's order. A hearing on the motion is scheduled for Feb. 10.

Dole used DBCP, or dibromochloropropane, the active ingredient in the brand-name pesticide Nemagon, on its banana plantations in Central America during the 1970s. Most of the recent suits have been filed in Nicaragua, where more than $2 billion in judgments have been issued under Nicaraguan law since 2000, according to Dole's annual report. Some plaintiffs attorneys have sought to enforce those judgments in other countries, including the United States.

Meanwhile, dozens of DBCP suits have been filed in the United States, most in Los Angeles.

In one of those cases, Chaney issued terminating sanctions against two plaintiffs lawyers, Juan J. Dominguez of Los Angeles and Antonio Hernandez Ordeñana of Nicaragua, dismissing two of their cases. The State Bar of California is investigating Dominguez, who did not return a call for comment.

Chaney's order implicated Socorro Toruño, a Nicaraguan judge who issued a $97 million judgment that Beaumont, Texas-based Provost Umphrey Law Firm had been attempting to enforce in U.S. district court in Miami. According to Chaney's order, in 2003 the Nicaraguan judge met privately with Mark Sparks of Provost Umphrey and Benton Mussle­white, a Houston lawyer who works with Provost Umphrey on DBCP cases.

U.S. District Judge Paul Huck of the Southern District of Florida declined to follow up on the fraud claims, but on Oct. 20 he refused to enforce the judgment on the ground that the Nicaraguan law on which it was based was "unfair and discriminatory" against defendants.

Given that ruling, along with Chaney's order, "I think it's extremely unlikely that a United States court will ever enforce one of those judgments emanating from Nicaragua," said Scott Edelman, a partner at Los Angeles-based Gibson, Dunn & Crutcher who represents Dole.

Sparks, at Provost Umphrey, declined comment. In court papers, he denied that he had attended a 2003 meeting with the Nicaraguan judge in the Miami case.

Musslewhite also denied that he was there. The meeting, he said in an interview, is "a big lie" and a "tragic example" of "a power-play by a big corporation like Dole." Chaney's probe, he said, amounted to a "star chambers" proceeding. "It was just not true. None of that was true."

Sharing that view was Condie. He noted that Chaney, who has since ascended to California's 2d District Court of Appeal, had entered a protective order shielding Dole's witnesses. The plaintiffs could cross-examine those witnesses, he said, but had no opportunity to independently investigate their stories.

Meanwhile, attention has focused on a separate case involving Girardi Keese and Engstrom, Lipscomb & Lack. Both Los Angles firms have been "affiliated" with Nicaraguan firm Ojeda Gutierrez & Espinoza, according to a document that Dole filed in the Miami case. Ojeda Gutierrez was identified in Chaney's order.

The U.S. Court of Appeals for the 9th Circuit is considering whether to discipline name partners Girardi and Walter Lack for alleged misconduct in a separate DBCP case in which they sought to enforce a $489 million Nicaraguan judgment. A special master concluded that the lawyers had filed an affidavit identifying as the target of the Nicaraguan judgment the Dole Food Co. when the actual judgment named "Dole Food Corp.," which doesn't exist. Although Girardi withdrew the appeal, the special master concluded that he had been unintentionally reckless and scolded Lack for intentionally misleading the court.

Girardi conceded error. "My name was on a brief I did not read. I acknowledge that. That is the truth," he said. But he strongly denied that he committed any fraud. "I have done a billion things wrong in my life. This isn't one of them."

As for the Nicaraguan firm, Girardi said he has met its representatives only once.

Lack did not return a call for comment, nor did his lawyer, Bob Baker of Baker, Keener & Nahra in Los Angeles.

Rick McKnight, a partner at Jones Day who formerly represented Dole, defended Dole's litigation strategy against "irresponsible behavior by the plaintiffs bar that was propagating cases that had no business being in U.S. courts." Defense attorneys said their witnesses feared reprisal at home in Nicaragua absent assurances of confidentiality.

So far, no fraud allegations have surfaced in the remaining DBCP cases filed in the United States by workers in Costa Rica, Honduras, Panama and Guatemala. "Nicaragua provides a clear window into what the plaintiffs lawyers as a group felt it necessary to do in order to win, and that was to fabricate claims with phony plaintiffs and fake work histories," Gibson Dunn's Edelman said. "We have no reason to believe we won't see it elsewhere."

A number of cases from Ivory Coast involve workers on pineapple and banana plantations. plaintiffs attorney Raphael Metzger of the Metzger Law Group in Long Beach, Calif., withdrew from the litigation after English-speaking Ivory Coast journalist Jean-Pierre Nassoue, whom he'd hired to coordinate his medical team on the ground, told Dole that plaintiffs evidence had been fabricated. The judge threw out the cases on Oct. 30 because the plaintiffs failed to find another lawyer.

Dole's lawyers argue that Metzger withdrew because scrutiny of his cases began to escalate as the date approached when Nassoue was scheduled to testify.

Metzger adamantly denied wrongdoing and cast doubt on Nassoue's claims.

"There was absolutely no fraud here whatsoever," he said. "Dole was basically seizing on the Nicaraguan situation and saying all these cases are fraudulent."

Contact Amanda Bronstad at abronstad@alm.com.