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american lawyer media news service West palm beach, fla.-Like a recurring nightmare, E.I. du Pont de Nemours & Co.’s Benlate woes just won’t go away. In the company’s latest courtroom misadventures over its litigation-plagued plant fungicide, a state trial judge in Fort Lauderdale, Fla., slapped the multinational chemical giant with an estimated $5 million in sanctions for violations relating to discovery and other matters. The penalty came in the cases of 27 Ecuadorean shrimp farmers that alleged that Benlate runoff from banana farms poisoned their harvests in the early 1990s. Two other related cases went to trial in 2000 and 2001; the plaintiffs won separate $14 million verdicts against Wilmington, Del.-based DuPont. Judge O. Edgar Williams of Broward County Circuit Court ruled on June 5 that DuPont hid documents that concerned “the central allegations in the plaintiffs’ cases and the affirmative defenses of DuPont.” Failure to disclose these documents “caused undue delays and confusion [and] caused plaintiffs substantial and undue expenditures of time and money.” In re 1997 and 1998 Claims of Ecuadorian Shrimp Farmers, No. 97-020364-27. Williams ordered DuPont to pay all fees and costs for the plaintiffs’ attorneys starting at the date of the discovery request. Those fees and costs total about $5 million, according to plaintiffs’ attorney Ivan Cabrera, an associate at Krupnick Campbell Malone Buser Slama Hancock McNelis Liberman & McKee in Fort Lauderdale, which represented the shrimp farmers. Counsel for DuPont are partner Daniel Molony and associate David Johnson in the Tampa, Fla., office of Kansas City, Mo.-based Shook, Hardy & Bacon. “It became plain to us in the course of trying [other shrimp farmers' Benlate claims] that defense statements in open court were misleading,” Cabrera said. “Basically, they were lying to us.” Molony said the judge’s order was “legally unwarranted and factually flawed, just plain wrong. We will undoubtedly appeal.” DuPont, a publicly traded company with 2002 revenues of $24 billion, did not return calls for comment. Multitude of lawsuits filed The shrimp farmers’ claims are among hundreds of lawsuits filed against DuPont for alleged Benlate-related damages. In 1992, the company paid more than $500 million to settle crop-damage cases nationally, paying $214 million more in another 220 cases two years later. More recent verdicts against DuPont are on appeal. The Ecuadorean shrimp farmers’ claims arose from DuPont’s introduction of Benlate for use as a fungicide by banana farmers in the highlands above Ecuador’s Taura River estuary, where the shrimp were raised. According to court documents, following the outbreak of a new banana virus in the early 1990s, sales of Benlate to the area shot up from 10,000 to 125,000 pounds a year. At the same time, the shrimp farms experienced a massive shrimp die-off. DuPont has maintained that an oceanic virus was responsible for the die-off. According to the Benlate litigation page of the “Heritage” section of the DuPont Web site, the company initially paid many claims to maintain “good customer relations,” and initiated “the most intensive investigation in the history of U.S. agriculture . . . .When the testing could not duplicate the claimed plant injuries, the company declined to pay any further claims.” It says that “there is still no credible scientific evidence demonstrating that Benlate caused either the crop or health problems alleged in the lawsuits.” But the shrimp farmers allege that DuPont failed to test for Benlate’s suitability for that country’s environment-specifically, for its propensity to run off and for its toxic effect on the shrimp DuPont knew were raised nearby. Krupnick Campbell attorneys won jury verdicts in the first two shrimp farmers’ claims to be tried. Final judgments of $14 million were entered in each of the two cases in early 2001. Both verdicts are on appeal before the Florida 4th District Court of Appeal. The remaining 27 cases have been stayed pending the results of the appeals. Krupnick Campbell’s Cabrera said damages for all 27 of the shrimp farms could reach $600 million. While DuPont still maintains that Benlate is safe, it took the product off the market in April 2001. The company estimates its total costs in Benlate settlements and litigation at $1.7 billion. It has recovered $200 million of that through insurance. In his ruling, Williams found that DuPont was in “significant and material violation” of the rules of civil procedure, “both in letter and spirit.” The judge spared the company the ultimate penalty. He wrote that “striking of the defendant’s pleadings is too severe a sanction.”

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