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A Florida appeals court on Wednesday threw out a $14 million verdict against the DuPont Co. in a product liability case involving an Ecuadorean shrimp farm that claimed that runoff of the fungicide Benlate from nearby banana farms damaged its shrimp harvests. In E.I. DuPont De Nemours and Co. v. Desarrollo Industrial Bioacuatico S.A., a three-judge panel of the 4th District Court of Appeal unanimously overturned a Fort Lauderdale jury’s November 2000 award because the shrimp farm’s initial complaint did not allege that the chemical maker failed to warn the shrimp farmers of the dangers of Benlate. Desarrollo Industrial Bioacuatico was one of 27 Ecuadorean shrimp farms that sued DuPont, alleging that Benlate runoff poisoned crustacean harvests in the early 1990s. Desarrollo sued the Wilmington, Del., company in Florida’s Broward County Circuit Court for negligence for failing to manufacture and distribute Benlate in a way that was safe for shrimp, failing to test the chemical to ensure it wouldn’t kill shrimp, manufacturing a product that was harmful to the surrounding environment and distributing a product it knew was dangerous. It was the first of the 27 cases to go to trial. “None of the allegations suggest a failure to warn was the basis of the cause of action,” 4th DCA Judge Martha Warner wrote for the court. Judges Robert Gross and Barry Stone concurred. “We are pleased that the 4th District Court of Appeal ruled in favor of DuPont with a strong, well-supported opinion,” DuPont spokesman Mike Ricciuto said. A second case in which a jury rendered another $14 million verdict against DuPont for a similar shrimp farm claim brought by Aquamar S.A. is also pending appeal before the 4th DCA on slightly different grounds. The other 25 cases have been put on hold while waiting for appellate decisions in the first two cases that went to trial. Attorneys on both sides say the 4th DCA ruling has no effect on an estimated $5 million in sanctions that Broward Circuit Judge O. Edgar Williams levied against DuPont for discovery violations during litigation of the 27 Ecuadorean shrimp farm claims. Williams ruled that DuPont hid documents central to the plaintiffs’ cases. Williams ordered DuPont to pay the shrimp farmers’ attorney fees and legal costs since the date of the plaintiffs’ discovery request. DuPont counsel Daniel Molony and David Johnson of Shook Hardy & Bacon in Tampa are appealing Williams’ order to the 4th DCA. They also are asking the appellate court to disqualify Judge Williams from the case for allegedly having ex parte communication with the plaintiffs. The attorneys representing the shrimp farmers included Walter “Skip” Campbell, Robert McKee and Ivan Cabrera of Krupnick Campbell Malone Buser Slama Hancock McNelis Liberman & McKee in Fort Lauderdale. No Krupnick Campbell attorney was available for comment. Prior to trial in the Desarrollo case in 2000, DuPont had filed a motion for summary judgment on the basis that Desarrollo’s claim amounted to a failure to warn case. That type of claim is barred by the federal Fungicide Insecticide and Rodenticide Act. Under the law, plaintiffs are precluded from filing state and federal lawsuits against pesticide companies for deficient warning labels because labeling of pesticides is regulated by the U.S. Environmental Protection Agency. In response to DuPont’s motion for summary judgment, attorneys representing the shrimp farmers disputed that their suit was a “disguised labeling claim.” Judge Williams denied DuPont’s motion for summary judgment. DuPont then filed a motion to exclude any evidence related to failure to warn allegations from the trial. But two days before trial, Desarrollo’s counsel argued that the complaint did include a failure to warn allegation. “They initially avoided dealing with [the Fungicide Insecticide and Rodenticide Act] by saying there was no failure to warn claim in their lawsuit,” said DuPont’s trial counsel, Thomas Sherouse of Shook Hardy & Bacon in Miami. “Then right before trial, they said they had reversed their position.” Williams ruled that the evidence regarding failure to warn was admissible. After a six-week trial in late 2000, a Broward County jury found DuPont negligent for failing to warn the shrimp farmers that the chemical could be hazardous to shellfish. The jury, however, did not find DuPont liable for the other two claims on the verdict sheet — failure to test Benlate to ensure it wasn’t toxic to shrimp and negligent distribution of the chemical. After the verdict, DuPont appealed, arguing that Desarrollo won the case on a claim it had never pleaded. On appeal, Desarrollo contended that its lawsuit encompassed a failure to warn claim and that DuPont had a fair opportunity to defend itself against the allegation. “DuPont treated it like a failure to warn case and filed an affirmative defense,” said Desarrollo’s appellate counsel, Beverly Pohl of Fort Lauderdale. “They were not prejudiced by any defect in the pleading.” But the 4th DCA cited a 1988 Florida Supreme Court case that held that a plaintiff cannot recover damages on a claim that was not specifically raised in the initial complaint. Allowing a plaintiff to do so would hinder the defendant’s ability to present an adequate defense, the high court said in Arky Freed Stearns Watson Greer Weaver & Harris P.A. v. Bowmar Instrument Corp. “How can it be said that DuPont should have prepared for trial on a cause of action that Desarrollo expressly rejected only two months prior to trial?” the 4th DCA wrote.

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