In 2007, attorney Juan J. Dominguez helped win nearly $6 million in the first U.S. verdict involving workers on Dole banana farms in foreign countries who claim they became sterile after being exposed to a pesticide known as DBCP.
Now, the judge in that case alleges that at least two other banana lawsuits filed by Dominguez of the Dominguez Law Group in Los Angeles "stink of the potential fraud" recently alleged by Dole Food Co., according to court papers.
On March 11, Los Angeles Superior Court Judge Victoria Chaney, who is overseeing most of the banana lawsuits in the nation, ordered both sides to explain why two lawsuits brought on behalf of dozens of Nicaraguan workers should not be dismissed as a terminating sanction against Dominguez and the plaintiffs for misconduct.
Among the evidence that has emerged in recent months indicating potential fraud: plaintiffs who had never worked on a banana farm, employment documents that were falsified and a Nicaraguan radio broadcast on which Dominguez has told listeners not to cooperate in the case, according to Chaney's order.
Dominguez did not return a call for comment. His assistant, Ivonne Rodriguez, said Dominguez was "not in a physical condition to call back." Scott Edelman, a partner at Los Angeles-based Gibson, Dunn & Crutcher, who represents Dole Food Co., declined to comment.
"Terminating a case as a punishment for lawyer misbehavior is very rare," said Lester Brickman, a professor of law and an expert on fraudulent practices in mass torts at Yeshiva University Benjamin N. Cardozo School of Law. "This goes beyond the typical malfeasance or misfeasance of a lawyer."
For more than a decade, dozens of lawsuits have been filed against Dole and many other defendants on behalf of thousands of workers who claim that they became sterile after being exposed to DBCP, or dibromochloropropane, on banana farms roughly 30 years ago in various countries, most of them in Central America. DBCP is banned in the United States.
In the first U.S. trial, a jury in Los Angeles awarded $5.8 million in damages to six Nicaraguan workers. Tellez v. Dole, No. BC312852 (Los Angeles Co., Calif., Super. Ct.). Last year, Chaney reduced the damages by more than half; the case is on appeal.
The plaintiffs lawyers in that case, Dominguez and Duane Miller, a partner at Miller, Axline & Sawyer in Sacramento, Calif., have filed two others involving dozens of Nicaraguan workers, one of which, Mejia v. Dole, No. BC340049 (Los Angeles Co., Calif., Super. Ct.), had been selected as the next U.S. case to go to trial.
But last fall, Dole's lawyers began filing depositions of unidentified witnesses in Nicaragua who stated that some of the plaintiffs in the case had never worked on banana farms and that work certificates and lab reports had been falsified, according to court documents. They also stated that some of the plaintiffs have children, despite claims of being sterile, court documents say.
"At a minimum, plaintiffs' lawyers appear to be filing claims on behalf of people they do not really know, whose claims -- at best -- they have not investigated, and whose stories on their face should put them on notice that they are fraudulent, facially baseless, or highly questionable and should never have been filed," Dole said in court papers.
SEPARATE TRIAL ON ALLEGATIONS
In October, Chaney set aside issues on the merits of the case and ordered that a separate trial commence on the fraud allegations, which do not involve Miller, Axline & Sawyer.
She also excluded Dominguez and an associated Nicaraguan attorney, Antonio Hernández Ordeñana, from the witness depositions. She further allowed deposition of their law firm employees, citing the crime fraud exception to the attorney-client privilege -- a move that Brickman of Cardozo Law School called rare and "indicates the court thought the lawyers had a significant role in creating this scheme."
In recent weeks, Dominguez has refused to be deposed, according to court documents. In this month's order, Chaney tossed the fraud trial, stating that recent concerns of witness safety and orders to "beat" and "club" Dole's investigators in Nicaragua had rendered further discovery improbable.
Dominguez, in court papers, has called Dole's allegations "hearsay and innuendo," not unlike similar claims made by Dole, which Chaney rejected in the Tellez case, that were based on a "Witness X," who, according to court papers, demanded $500,000 and a house and job in Florida in return for testimony.
Chaney, in this month's order, said Dominguez's bribery allegations consist of "no admissible evidence" so far.
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Judge Alleges Possible Fraud in Banana Cases
Orders both sides to explain why cases shouldn't be dismissed
The National Law Journal
March 24, 2009
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