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E.I. du Pont de Nemours & Co. thought years ago that it had seen the worst of its Benlate litigation. It had set aside $1 billion to settle hundreds of claims and an undisclosed number of lawsuits, which claimed that the fungicide had seriously damaged U.S. ornamental nurseries during the early 1990s. According to DuPont lawyers, those settlements were reached not because Benlate was responsible for any damage, but for public relations purposes and to limit soaring legal costs. Now, on an entirely new front, DuPont is confronted with charges that Benlate — and not a fatal oceanic virus, as DuPont has maintained — also caused tens of million of dollars more in damage to Ecuador’s billion-dollar shrimp industry. On Feb. 27, lawyers representing an Ecuadorian shrimp company won a $12.3 million verdict from a Broward County, Fla., jury against DuPont. The attorneys were from Fort Lauderdale, Fla.’s Krupnick Campbell Malone Roselli Buser Slama Hancock McNelis Liberman & McKee. After a six-week trial and four hours of deliberations, jurors found that Benlate, used on coastal banana plantations to eradicate harmful pests, had run into the ocean, killing entire populations of shrimp. Just weeks earlier, the same plaintiffs’ firm won a $10.03 million verdict against DuPont in the same Hollywood, Fla., courtroom for another Ecuadorian shrimp company. After a 10-week trial, jurors deliberated over nearly identical evidence for seven hours. Krupnick Campbell has another 27 DuPont-shrimp cases awaiting trial in Hollywood. Within days of the first shrimp verdict, DuPont appealed; the second verdict will be appealed as well, says DuPont corporation counsel Amy Kittredge. “This is a classic example of how a jury can be misled by junk science — and we will be vindicated on appeal,” says Thomas Sherouse, co-lead defense attorney for DuPont and a partner in the Miami office of Kansas City, Mo.’s Shook, Hardy & Bacon. Sherouse says that his appeal briefs will make two main arguments. First, he says, the trial judge, Broward County Circuit Judge O. Edgar Williams, abused his discretion by, among other things, excluding evidence that would have impeached the plaintiffs’ key expert witnesses. Sherouse intends to ask for a retrial for that reason, he says. Second, and preferably, he says, the suits and verdicts should be dismissed outright under the Frye doctrine, used by Florida courts, because the suits hinged on “invalid science” to establish a cause-and-effect relationship between DuPont’s Benlate and the dead Ecuadorian shrimp. SCIENTIFIC EVIDENCE In Frye v. U.S., 293 F. 1013, the U.S. Circuit Court of Appeals for D.C. in 1923 said that, for expert evidence to be admissible, it must generally be accepted by the majority of the relevant members of a given scientific community. Besides allowing for outright dismissal of a plaintiff’s case, another key advantage for defendants in Frye appeals, Sherouse says, is that the appeals court not only can consider the expert evidence presented at trial de novo, but also can consider additional scientific evidence. The Frye standard was applied on Feb. 21 by Florida’s 4th District Court of Appeal — the same appeals court that will hear the Benlate shrimp appeals — to reverse a $340,000 verdict in favor of a plaintiff. Kaelbel Wholesale Inc. v. Soderstrom, No. 4D99-406. Similarly, in the Benlate shrimp cases, argues Sherouse, the plaintiffs’ cause-and-effect arguments rest almost entirely on scientific theories espoused by two Ecuadorian scientists “that have never been validated in an independent laboratory.” According to Sherouse, those two plaintiffs’ experts, who allegedly have financial ties to the plaintiffs, for years have been waffling between blaming Benlate and two other fungicides, produced by Ciba-Geigy and BASF. PICKING BENLATE DuPont and Benlate were “picked” by the plaintiffs’ lawyers, he claims, because DuPont had offices in Florida and could be sued readily without jurisdictional complications. In contrast, says Sherouse, more than 20 independent peer-review studies published since 1995 established that the lethal Taura syndrome virus has spread into nearly every major shrimp-growing region in the Americas and has caused commercial losses estimated at up to $2 billion between 1992 and 1996. Especially relied on at the first two Benlate shrimp trials, he says, was work performed in recent years by the University of Arizona’s Donald Lightner, which established through sophisticated gene probes of archived dead Ecuadorian shrimp tissues that Taura syndrome virus was the real killer, not Benlate. Although Sherouse won’t say it, perhaps damaging to his cause was Lightner’s insistence that he only testify in court via a taped video deposition. Meanwhile, lawyers from Krupnick Campbell say that DuPont’s pending appeals is just so much griping. “The company blamed everybody except themselves,” says Walter G. “Skip” Campbell, a name partner at the firm and co-lead trial lawyer in the shrimp cases. According to Robert J. McKee, another Krupnick Campbell partner, DuPont’s own experts agreed at trial that Benlate, at low levels of exposure, was toxic to many shrimp species, including those that were killed off the shores of Ecuador. Despite knowing about this “poison bullet,” says Campbell, DuPont did nothing to warn the Ecuadorians about the threat, a point that he says was driven home to the jurors and will be re-emphasized on appeal. Krupnick Campbell lawyers also say they don’t understand why DuPont continues to turn its back on settlement talks in the shrimp cases, when it paid $214 million in 1994 to settle 220 Benlate crop-damage cases filed on behalf of Florida nursery owners. This happened after plaintiffs had won two jury verdicts of $3.7 million and $800,000, respectively. (Lawyers for both sides agree that the crop- and shrimp-damage cases rely on entirely different causation theories.) “With two strikes on them a second time, you would think they would be more willing” to discuss terms, says Professor Bruce Rogow, a professor at Fort Lauderdale’s Nova Southeastern University Shepard Broad Law Center who has been retained by Krupnick Campbell to handle the DuPont appeals. But other plaintiffs’ lawyers involved in the 140 Benlate-related cases still pending worldwide observe that DuPont’s defense lawyers have successfully overturned plaintiffs’ verdicts in Benlate litigation. “Whether DuPont will ever settle the shrimp cases is not for me to say,” concludes Sherouse. “But, it’s my personal opinion that the three appellate judges who will be considering the trial record will understand what we were trying to get at.”

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