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A Broward County, Fla., Circuit judge has ruled chemical manufacturer DuPont engaged in “a deliberate scheme to interfere” with rulings in more than a decade of litigation and struck its defenses in a pair of multimillion-dollar cases over the destruction of shellfish grown by Ecuadorean shrimp farms. Judge Charles Greene found DuPont committed fraud that “permeated the entire litigation” when it concealed information about the creation of a new Benlate fungicide formula that was not reviewed or approved by U.S. and Ecuadorean authorities and lied about the fungicide’s registration status. DuPont had claimed its U.S. formula registration barred the farmers’ claims. On Wednesday, lawyers for the Wilmington, Del.-based chemical giant planned to ask the judge for some latitude on evidence that jurors will hear on damages. But the lawyers appear to have a high bar to clear with a judge who has already concluded that the defense has been disobedient with the court. “It is this court’s opinion that defendant’s conduct has been a deliberate and contumacious disregard of the court’s authority,” Greene wrote in a June 11 ruling. “This type of deception simply cannot be tolerated in any court of law. … Conduct of this nature undermines the ability of courts to administer justice.” Greene issued a default judgment as sanctions, and two companion cases are set for trial in January. Ecuadorean shrimp farmers Aquamar, Molinos del Ecuador and Desarrollo Industrial Bioacuatico, or DIBSA, sued DuPont in 1997 and 1998, claiming Benlate runoff from nearby banana farms entered waterways and that its active ingredient killed shellfish. In separate negligence trials, DIBSA won a $14.3 million verdict, and Aquamar won $12.3 million for contamination. Both verdicts were overturned by the 4th District Court of Appeal. Another Broward judge granted a new trial after finding that DuPont engaged in discovery violations when it concealed a study that found Benlate could have caused the contamination. Greene also ruled that the plaintiffs are entitled to attorney fees and costs “associated with the needless discovery and litigation resulting from this improper action.” Plaintiff attorney Robert McKee of Krupnick Campbell Malone Buser Slama Hancock Liberman & McKee in Fort Lauderdale, Fla., said in an interview that the added sanctions could cost tens of millions of dollars. McKee said each client will be seeking $30 million in compensatory damages plus punitive damages. “Judge Greene’s ruling was sweet vindication for years of hard work trying to find the truth,” McKee said. “He did what you hope every good judge would do.” DuPont attorney Thomas Sherouse of Shook Hardy & Bacon in Miami said his client is disappointed with Greene’s ruling and intends to appeal at the appropriate time. He contends his client didn’t hide the change in formula. He said the only two ingredients added to Benlate were sugar and a chemical approved for use in animal and fish food as a binding agent. He said neither additive affected the fungicide’s active ingredient. &quo;There’s no way that the differences that we’re talking about have any bearing on this lawsuit,” Sherouse said. Greene disagreed. His order said DuPont’s actions prevented plaintiffs from being able to properly pursue their legal rights. “The plaintiffs engaged in discovery and went to trial in two separate cases under the mistaken belief that this product was properly registered,” the judge wrote. “An appeal was argued and a plaintiff’s verdict overturned on the basis of this falsity.” He noted it took the farmers nearly a decade of litigation despite “aggressive and thorough discovery attempts” to realize that Benlate had been reformulated but unregistered. Plaintiffs learned about the unregistered formula last winter during a deposition of a DuPont corporate representative and expert on Benlate labeling, approval and registration. Benlate was withdrawn from the market in 2001 — years after commercial nurseries in Florida, Georgia and Hawaii complained about crop failures. Greene considered Wednesday which witnesses DuPont may summon during a trial on the question of financial damages. The defense wants to present evidence that a virus contributed to the shrimp deaths that began in 1992 even though Greene ruled in favor of the farmers on causation. The farmers want to strike a defense expert who would testify on the virus as well as DuPont’s accounting expert.

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