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Thirteen years ago, foreign workers from more than a dozen foreign countries ranging from Nicaragua to the Philippines sued Dole Food Co. for fertility problems allegedly related to use of the pesticide DBCP to kill worms that damage banana plants. That was the first step in a long legal battle that is scheduled to culminate in a March 14 jury trial in Dallas. Borja v. Standard Fruit Co., No. 92-0320-F (116th Dist. Ct., Texas). Plaintiffs’ lawyers have overcome years of procedural hurdles to get to a state court. They consider the trial a “bellwether” for the remaining 375 plaintiffs with cases pending in Dallas, and approximately 6,000 cases throughout Louisiana and Texas. Dole’s defense team agrees it could be a bellwether, but has very different expectations. “The first thing out of my mouth, the first thing I’ll tell the jury, is that there is good news,” said Dole’s defense counsel, Terence Murphy of Jones Day’s Dallas office. “These men are not sick. The good news is that they are not infertile.” Plaintiffs’ lawyer Fred Misko, a Dallas solo practitioner, will paint a very different picture of the four Costa Rican plaintiffs. The men are agricultural workers who say exposure to DBCP between 1976 and 1978 left them with lower sperm counts and diminished fertility. “None of these men had the slightest idea this could happen to them,” said Misko, who will argue that Dole knew or should have known about the toxic effects of DBCP and provided the men with safety gear to limit their exposure. The four men, who have nine children altogether, are now in their forties and fifties, but were considerably younger when allegedly affected by DBCP. Misko will call experts to testify about the psychological effects the alleged diminished fertility places on Costa Rican men. “They are like lepers and the butt of much ridicule [due to their relatively low number of children],” said Misko, talking about how the men with low sperm counts are treated in their country. DBCP was provisionally banned by the Environmental Protection Agency (EPA) in 1979. Dole’s lawyer claims that the company received a letter in 1977 from Dow Chemical Co., its manufacturer, stating that concerns over DBCP were raised by allegations at an Occidental Chemical Corp. plant in California. Dow’s letter, according to Murphy, said the allegations were under investigation, but field workers were not at risk. Dole voluntarily stopped using DBCP in November 1978, before the EPA’s ban. “The employers and manufacturers are not together in this,” Murphy asserted. “It’s the manufacturer who tests it, makes an application to the government and says what warning labels should be on there.” Dole is an employer of workers who used DBCP, not a manufacturer of the pesticide. But Misko will argue that Dole’s workers poured the chemical from 55-gallon vats into smaller containers to spray the pesticide into the root of the banana plant. His clients are field workers in 13 countries who claim that breathing and skin contact to DBCP damaged their fertility. In all, more than 26,000 lawsuits were filed against manufacturers like Dow and Occidental and included employer defendants like Dole and Chiquita Brands International Inc. Many settled during the 1980s and 1990s when DBCP litigation came to a head. Dole settled with one group that included about 980 “carefully screened” plaintiffs, according to Murphy, but it has refused to settle with the current foreign plaintiffs because it fiercely denies their injuries. “Let’s talk about these four,” Murphy said. “They have nine children cumulatively. That’s 2.2 per person and the national average is 2.4 per family in Costa Rica.” Many of the original 2,500 plaintiffs in Dallas were dismissed, leaving 375, Murphy added. The names of the four Costa Rican plaintiffs were literally picked out of a hat by a judge as the first to be tried, he said. Court to court But plaintiffs’ lawyers have held out just as long for the chance to argue otherwise. They have spent 13 years on procedural wrangling, and have bounced between state, federal and Costa Rican courts. “The hardest part of this has been the procedural battle,” Misko said. The lawsuits were first filed in state court, but defense lawyers had them removed to federal court because an Israeli manufacturer was included as one of the minor defendants. “Almost always federal judges will dismiss these cases and tell plaintiffs to refile in their home countries,” Misko noted. And that is exactly what happened. Misko refiled in Costa Rica, but the courts there denied jurisdiction. “We came back here to federal court and said we want back in,” Misko said. By that time, the U.S. Supreme Court had just ruled in a related decision that the cases should not have been removed to federal court in the first place. Dole Food Co. v. Patrickson, 538 U.S. 468 (April 2003). So, on March 14, 13 years later, Misko will be back in state court where he started.

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