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In a significant victory for the DuPont Co., a Florida appeals panel has overturned a $26.5 million verdict awarded to two Costa Rican nurseries that claimed the fungicide Benlate had caused widespread plant damage at their farms. The 3rd District Court of Appeal unanimously overturned the jury verdict because Miami-Dade Circuit Judge Amy Steele Donner, who presided over the trial, gave an improper jury instruction. The appeals court also said the size of the award was not supported by the record. The court, however, affirmed a ruling by Judge Donner following the six-week trial in August 2001, in which she dismissed state Racketeer Influenced and Corrupt Organizations Act claims against DuPont, which is based in Wilmington, Del. Donner’s ruling meant that the nurseries could not receive triple damages, as provided for under the RICO statute. The plant nurseries, Palmas y Bambu and Producturas de Semillas, had sued DuPont on charges of racketeering, fraud, negligence and product defect. The nurseries claimed that DuPont knew that Benlate caused widespread plant damage based on secret tests it conducted in 1992 in Costa Rica. DuPont officials allegedly conspired to cover up the evidence of damage by destroying the test results when its Benlate customers began filing product liability lawsuits. In August 2001, the jury found DuPont liable on all counts and awarded $29 million in compensatory damages, which Donner reduced to $26.5 million after the trial. In March 2002, Donner also set aside the part of the verdict based on RICO, saying the nurseries failed to prove that they directly relied on DuPont’s alleged misrepresentations. In Palmas y Bambu v. E.I. Dupont Nemours & Co., 02-1026, the 3rd DCA overturned the $26.5 million damage award because Donner improperly instructed the jury that DuPont had conducted Benlate tests in Costa Rica and destroyed records it had a legal obligation to preserve. Whether DuPont had destroyed the records was an issue of fact that should have been decided by the jury, the court said. But the appeals court affirmed Donner’s dismissal of the jury’s RICO violation finding. “RICO plaintiffs must prove direct injury, not just any injury that may be traced to a predicate act,” Judge Linda Ann Wells wrote for the three-judge panel. On the RICO counts, Donner also found that the nurseries failed to prove the existence of an “enterprise” that involved parties outside DuPont. The 3rd DCA upheld her on this point as well. The 3rd DCA remanded the case for a new trial without the racketeering claims and without the special instruction telling jurors it could hold DuPont liable for destroying the test results. Last month, the state’s 4th DCA overturned a $12.5 million jury verdict in Broward County Circuit Court against DuPont in a product liability case involving an Ecuadorean shrimp farm that claimed Benlate runoff destroyed its shellfish harvests.

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