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CASE TYPE: Products liability, negligence, fraud, civil RICO CASE: Palmas y Bambu v. E.I. du Pont de Nemours & Co., No. 97-12186CA23, 97-12185CA23 (Miami-Dade Co., Fla., Cir. Ct.) PLAINTIFFS’ ATTORNEYS: Janet L. Humphreys, Adam M. Moskowitz and Detra P. Shaw-Wilder of Miami’s Kozyak Tropin & Throckmorton DEFENSE ATTORNEYS: John A. Boudet of the Orlando, Fla., office of Greenberg Traurig; and David C. Banker of the Tampa, Fla., office of Kansas City, Mo.’s Shook, Hardy & Bacon JURY VERDICT: $88.5 million, after trebling For the past decade, E.I. du Pont de Nemours & Co. has been stuck in a litigation quagmire over the fungicide Benlate. Growers in Florida, Hawaii, Georgia and elsewhere have sued DuPont, contending the product killed more than the fungi it was aimed to destroy. So far, DuPont has paid more than $1 billion in settlements and litigation costs, and may pay millions of dollars more. At the heart of most lawsuits is the claim that Benlate is defective, but in this suit, brought by Costa Rican ornamental plant growers, the plaintiffs’ attorneys added another claim — that DuPont’s actions in the marketing of, denying problems with and continuing to sell Benlate constituted civil racketeering under Florida’s RICO statute. The plaintiffs, Productura de Semillias and Palmas y Bambu, each used Benlate WP on their ornamental plants for years before switching in 1989 to Benlate DF, a dry, flowable granular powder that is mixed with water before spraying. This form of Benlate “caused devastating damage” to their plants, said plaintiffs’ attorney Janet L. Humphreys. “Benlate caused their plants to yellow, to die, to not grow roots, to become deformed.” Both growers stopped using Benlate DF in early 1992, Humphreys noted. In 1997, Productura de Semillias and Palmas y Bambu filed a products liability action against DuPont. But the plaintiffs also charged DuPont with fraud and violation of the Florida civil racketeering act covering civil remedies for criminal practices. “Filing a RICO claim is not something that we do lightly,” said Humphreys. “The evidence of product defect and negligence was so strong, we could have just gone with those. But the counts were dictated by the facts.” Winning on a civil RICO count also meant that any damages awarded would be automatically trebled. The essence of this claim, said Humphreys, was that “DuPont marketed a product they knew to be defective and covered up and concealed its defectiveness from the public and their customers.” DuPont documents were acquired through discovery not only from DuPont, but also from other lawyers who had handled Benlate cases. The plaintiffs introduced 20 internal memos, including memos from the time the plaintiffs were buying and using the product. One from September 1991 read: “Benlate is phytotoxic and can cause severe crop damage by itself.” At the time that DuPont personnel were writing these memos, the company was making public statements, Humphreys charged, “that there was nothing wrong with Benlate, there were no symptoms of damage. These statements were targeted at growers.” To press the point that DuPont was covering up problems with Benlate, the plaintiffs prepared a chart for closing statements, using excerpts from the memos. On the top of the chart, Humphreys noted, was “what DuPont knew. On the bottom was what DuPont said. It was pretty dramatic, we thought.” “A cover-up is a type of fraud that can be prosecuted criminally,” Humphreys said. “It was our theory that a criminal fraud had been perpetrated.” This gave the plaintiffs a predicate to accuse DuPont of violating the Florida civil racketeering act covering civil remedies for criminal practices, she said. DuPont denied that Benlate was defective or that it had injured the plaintiffs’ crops, and denied that the company had committed any illegal acts. But on Aug. 10, 2001, a Miami jury found Benlate defective and that DuPont had committed fraud and violated the civil RICO statute. The jury awarded $14 million to Palmas and $15.5 million to Productura. The award was automatically trebled. In a prepared statement, DuPont said the jury’s verdict was “the product of confusion caused by rulings that excluded key evidence.” DuPont added, “The conclusion that it is a crime for a company to defend its product, particularly based on a smear campaign and pseudo-science, as this trial was, is an absurdity.” Post-trial motions are pending. DuPont has announced that it will stop making Benlate.

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