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The decade-long saga about Benlate — the fungicide that has cost E.I. du Pont de Nemours and Co. about $1 billion in settlements — returned to the 11th U.S. Circuit Court of Appeals this week. The last time the 11th Circuit heard a Benlate case, in 1998, a three-judge panel issued a one-sentence ruling in favor of DuPont just hours after oral argument. Tuesday’s argument seemed to go a little better than last time for the plaintiffs, plant growers who claim DuPont hid evidence that would have encouraged the growers to hold out for better settlements. At the very least, the panel had not issued a decision by press time on Thursday. More substantively, the panel of Judges Stanley F. Birch Jr., Joel F. Dubina and Senior Judge Phyllis A. Kravitch didn’t appear to reject the plaintiffs’ arguments outright. That is what happened in the 1998 argument before Dubina, Judge Gerald B. Tjoflat and Senior Judge James C. Hill. At the very least, this time Birch was curious enough about one aspect of the case that he asked both sides to submit more briefs. Since 1991, commercial growers around the country have filed more than 600 suits against DuPont, claiming its fungicide caused hundreds of millions of dollars of damage to their plants. Many growers settled their cases, some crying foul after scientific evidence surfaced in a Hawaii case showing that Benlate could have been contaminated with a toxic herbicide. In Georgia, growers in the trial of Bush Ranch v. E.I. du Pont de Nemours and Co. settled their cases in 1993. But they later claimed DuPont and its lawyers at Atlanta-based Alston & Bird conspired to hide this evidence. That led to a new round of suits claiming DuPont and its lawyers defrauded growers into settling for less money than their suits were worth. But in 1997, the late U.S. District Senior Judge Richard C. Freeman ruled that the Bush Ranch plaintiffs who settled cases cannot keep their settlement money while suing again and claiming the settlement agreements were no longer in effect. On appeal, the 11th Circuit panel in 1998 expressed grave concerns about letting plaintiffs sue again without returning their settlement money, as typically required by federal rules of civil procedure. In their one-sentence decision, they affirmed Freeman’s “thorough and well-reasoned order.” By that time, the Bush Ranch discovery abuse allegations against DuPont and Alston & Bird had swung from civil litigation to a criminal investigation. But on New Year’s Eve in 1998, U.S. District Judge Hugh Lawson in Macon, Ga., hatched a settlement in which DuPont paid $11 million to fund legal ethics education at Georgia law schools. Alston & Bird paid $250,000 to the Georgia Supreme Court’s Commission on Professionalism. DuPont and Alston & Bird denied they did anything wrong, but the law firm acknowledged a “fundamental misunderstanding” of the trial court’s discovery orders. The agreement also gave an undisclosed amount to lawyers for three of the original plaintiffs. Nonetheless, the Benlate battles continued. Last year, a Florida federal judge dismissed a suit by 150 growers charging DuPont with, among other things, fraud, civil racketeering and spoiling evidence because of DuPont’s alleged wrongdoing in Bush Ranch and other cases. Florida Evergreen Foliage v. E.I. du Point de Nemours and Co., 165 F. Supp. 2d 1345 (S.D. Fla. 2001). That led to Tuesday’s argument at the 11th Circuit. South Carolina lawyer A. Camden Lewis, who argued in the 1998 debacle, complained that under the Florida judge’s decision, if a litigant accuses the other side of fraud, the accuser is not entitled to rely on the answers provided by the other side in litigation. The judge, Lewis said, “creates an ‘anything goes’ litigation privilege.” A. Stephens Clay, of Kilpatrick Stockton, also reprised his role from 1998 as the lawyer for DuPont. He said the plaintiffs could not claim to be defrauded by the alleged fraud of the DuPont lawyers in Bush Ranch, because the Florida plaintiffs were not parties in that case. Claiming to rely on the evidence in Bush Ranch “comes nowhere close to the finding of direct injury” required to bring the suit, said Clay. Kravitch asked Clay whether he supported “anything goes” litigation rules. “Of course discovery representations should be honest,” Clay responded. He added that if lawyers were not honest, “they should be punished.” Pressed by Birch as to what plaintiffs alleging fraud should do, Clay said they could have gone to Florida state courts to ask for sanctions or to have the settlements lifted — a move that would have required the plaintiffs to forfeit their settlement money. When Lewis returned for rebuttal, Dubina asked why he didn’t do what the lawyers in Bush Ranch did: press for federal criminal charges. “It doesn’t give me a remedy,” said Lewis. The district court could order sanctions, said Birch. But that didn’t happen in Bush Ranch, responded Lewis, noting that the money was required to be paid to law schools and the Georgia Supreme Court’s professionalism committee. At the end, Birch asked Clay and Lewis to write short briefs responding to why the Florida judge dismissed the plaintiffs’ claim to rescind their settlements. The argument came out of two consolidated cases, both called Green Leaf Nursery v. E.I. du Pont de Nemours and Co., Nos. 10-13345-J and 01-15693-J (11th Cir. arg’d Nov. 5, 2002).

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