COLUMN ONE : Going an Extra Mile for Justice : At distant Costa Rican sites, worker illnesses were linked to a U.S.-made pesticide. Determined lawyers trod a long, rocky road to sue in America, and created a legal furor.

By the time forensic pathologist Roberto Chavez arrived here in 1982 to interview dozens of distraught banana plantation workers, much was already known.

The workers had first started appearing at the local Rio Frio Clinic five years before, saying they could not have children, their lives were over, they had no reason to live. Doctors eventually had found about 1,000 men sterile, with low or nonexistent sperm counts. Specialists had linked the men’s condition to the pesticide DBCP, which can cause testicular damage. Officials had learned that DBCP was widely used at the Standard Fruit Co.’s banana plantations in Costa Rica for years--including about 15 months after it had been banned in the United States.

So, for Chavez, then serving as the chief forensic scientist for the Costa Rican judiciary, only a solitary question remained: What to do? Chavez wanted more than compensation for the workers. He wanted to punish those responsible. He wanted to right a wrong.

Costa Rica’s system of workmen’s compensation offered little help, and its legal system promised even less, because the ceiling on tort claims was limited to about $1,800, and Costa Rican lawyers didn’t work on a contingency fee basis.

In time, Chavez fixed on a plan. One morning in the late fall of 1982, he called a colleague in Houston, a fellow toxicologist named Eric Comstock. Comstock, in turn, called a law firm he often worked for in Dallas. It was a long shot, the two men understood. According to long established legal doctrine and practice, foreigners injured on foreign soil generally were not allowed past a courtroom door in the United States. But maybe Baron & Budd could do something with this one.

In this fashion began a rocky, unlikely but now apparently successful campaign to convert a distant, tragic misfortune into the currency of the American judicial system.

Last March, after 82 Costa Rican banana workers had vainly sought an American courtroom for six years, the Texas Supreme Court, in an unprecedented, unexpected and bitterly disputed 5-4 decision, ruled that the Costa Ricans could sue the DBCP manufacturers, Shell Oil Co. and Dow Chemical Co., in Texas courts.

Shell’s world headquarters is three blocks from the Houston courthouse, after all, and Dow operates the country’s largest chemical plant just 60 miles from there.

In an ever-expanding global market, who is to hold U.S.-based multinational corporations accountable for their actions in foreign countries, particularly those that lack a sophisticated judicial machinery of their own? Where does the responsibility lie? Should American courts and citizens intrude on and override another country’s judicial system? Is it fair to ask a single state’s citizens to assume that moral burden, and then suffer economically when companies respond by taking their operations elsewhere? Such are the central questions underlying the case, known as Dow Chemical Co. and Shell Oil Co. vs. Domingo Castro Alfaro et al.

The answer provided by the Texas Supreme Court--to allow foreigners’ lawsuits when the defending companies are headquartered or do substantive business within the state--carries wide ramifications, because Texas is home to 39 of the country’s Fortune 500 companies and the site for hundreds of other major manufacturing plants.

Two other states--Georgia and Louisiana--already allow foreigners’ suits, but the Texas ruling promises to strip from many multinational corporations a doctrine that in recent years has become their chief means of avoiding lawsuits arising out of events in foreign lands.

As a result, the Costa Ricans’ footsteps at the courtroom door have aroused a chorus of protest from local newspapers, chambers of commerce, defense lawyers and business lobbyists. About 40 large corporations filed friend-of-the-court briefs when the case went to the Texas Supreme Court and later issued dire economic predictions about what would happen if they could be sued by anyone in the world.

Echoing those thoughts, each of the four justices on the losing side offered his own hotly worded dissenting opinion. State legislators began considering a bill to overturn the ruling.

Some of the argument is legal and technical, but much of the exchange arises not from law but from public policy.

“What purpose beneficial to the people of Texas is served by clogging the already burdened dockets with cases which arose around the world and which have nothing to do with this state?” Justice Nathan L. Hecht demanded in his dissent. “(This ruling) inflicts a blow upon the people of Texas, its employers and taxpayers that is contrary to sound policy . . . . Why should Texas be the only state in the country, perhaps the only jurisdiction on Earth, possibly the only one in history, to offer to try personal injury cases from around the world?”

“Texas has a substantial interest in the case . . . “ countered Justice Lloyd Doggett in his concurring majority opinion. “The . . . workers . . . were employed by an American company on American-owned land and grew Dole bananas for export solely to American tables. The (pesticide) . . . was researched, formulated, tested, manufactured, labeled and shipped by an American company in the United States to another American company. Yet now Shell and Dow argue that the one part of this equation that should not be American is the legal consequences of their actions . . . .”

Those who originally ignited the brouhaha, meanwhile, have been left looking somewhat dazed at what they’ve wrought. Russell Budd, 36, and Charles Siegel, 30, two plaintiffs’ attorneys from the 19-member law firm of Baron & Budd, these days spend a good deal of time trying to dampen the furor by explaining how limited their case’s reach truly is. They also spend a great deal of time trying to make sure they will have a case to carry into court.

That’s not a trifling consideration, for very few of the banana workers have phones and some don’t have mailing addresses. Inquiries and calls for meetings are communicated over the local radio station here in Costa Rica’s lush, remote tropics, a tortuous two-hour drive to the northeast of San Jose across a fog-shrouded mountain range. For most workers, travel to conferences is by horseback or bicycle. There are, in short, as many practical as philosophical obstacles to escorting 82 Costa Rican banana workers into an American courtroom.

“Forget all the talk about broad legal issues,” Budd observed. “The biggest problem is logistics.”

Budd, as it happened, offered that comment as he was peering through a fogged windshield and bumping along a dirt road. At 8:30 on a Saturday morning in early December of 1990, he and Siegel, along with the toxicologist Chavez and two others serving as guides, interpreters, advisers and liaisons, had left San Jose’s Herradura Hotel in two rented gray Toyotas. Snaking through thick stands of banana plants and wild coconut trees, they had made swift progress until the road branched into a network of rock-pitted paths and the hot humidity turned to a warm, driving rainstorm.

It was 11:30 a.m. when the group finally arrived in the hamlet of Rio Frio for a meeting that had been scheduled to begin at 10. Midway along the unpaved two-block main street, the visitors’ cars turned right onto a path that curved past a scattering of frail lean-tos, then gave onto an open field. Up ahead rose Rio Frio’s community center, the Club Social, a large open-air barn with a concrete floor, chain-link walls and a sloping tin roof.

The local radio station’s broadcast apparently had provided sufficient notice--massed in front of the social hall were about 200 men. In fact, the whole town seemed to be present. Young children darted about, mothers chatted and a busy entrepreneur with a pushcart sold snow cones hand-grated from a block of ice.

Most Saturdays, the men would have been working at the plantation, but this was a holiday--the day Costa Ricans celebrate the Immaculate Conception.

The two lawyers, climbing from their cars, waded through the crowd to the hall’s entrance, Budd’s tasseled loafers sinking into the mud. The Costa Ricans pressed against the chain-link wall, their eyes silently following the lawyers. While waiting to be called inside for their personal interviews, the men talked.

Each said much the same thing: I am sterile. I can’t have children. You don’t know how terrible that is. My wife has left me. I cannot find a wife. The whole point is to raise a family, be an old guy with my kids. Now I don’t have a future. There is no reason to live.

“I have not recovered from it yet,” said Ulises Subaja Araya, 35, who for 12 years worked in a small Standard Fruit Co. warehouse, preparing the mixture of DBCP and water that others then injected into the soil around the banana plants.

“My reaction was to come to my wife and ask for a divorce. Because I felt it was not for me to expose her to a childless destiny. It was not right. She was very surprised, for I didn’t tell her the reason. She was crying and demanding to know why. Then I told her I was sterile. I was feeling very bad. Then my wife said: ‘The wedding ceremony was an oath of having the same life to share.’ So we stayed together. But my morale is broken. Our sex life is broken. Friends mock me, say to me: ‘Why don’t you let me help your wife.’ I condemn the company that never told us about the toxicity of this product.”

As moving as such statements were, however, they were not particularly relevant to the legal matter at hand. In the meetings between lawyers and clients under way just then inside the social hall, the talk most likely was not of feelings and loss but of dates--precise dates.

The lawyers won’t say so, but they are wrestling with a tricky business involving a two-year statute of limitations. Just when, the lawyers need to know, did the workers learn their sterility was connected to the DBCP in the workplace?

It was sometime in early 1977 that plantation workers in Rio Frio first began publicly reporting their inability to have children. There were 10 at first, then two dozen, then more than 50. Eventually, the local doctors sent the workers to a hospital in San Jose, where so many sterile men from such a small, confined region aroused the curiosity and concern of Dr. Carlos E. Dominquez Vargas and other physicians.

Could the cause be tied to the men’s work at the banana plantation? Dominquez wondered. He had his patients bring him labels of the chemicals they were using there. At that time, in the middle of 1978, Dominquez knew nothing about DBCP. He wrote to the U.S. Environmental Protection Agency. What the doctor received in return provided interesting reading.

It turned out that years before, when it was first being developed by Shell and Dow in the 1950s, DBCP had been shown to cause sterility in rats. More recently, human workers exposed to DBCP at a chemical manufacturing plant in California had been found to be sterile. As a result, by both state and federal law the pesticide had been restricted in the United States since August of 1977. On Sept. 8, 1977, the EPA had issued a notice suspending DBCP use because “not only is DBCP a powerful carcinogen in animals . . . but . . . may cause sterility in men.” Shell and Dow had stopped making the pesticide, had alerted their customers and the press and had issued a recall to users and distributors.

Dow, however, had not stopped exporting its existing stockpile of DBCP to foreign countries. This was neither illegal nor unusual--about 500 million pounds of pesticides made in the United States still are exported overseas annually, and about a quarter of them are either banned by or not registered with the EPA.

The story has been told more than once, most notably in June of 1989 by the Center for Investigative Reporting and the magazine Mother Jones. Court documents connected to the current litigation provide further details.

There was an urgent need--DBCP kills nematodes, a pesky microscopic worm that feeds on plant roots. There was pressure--one memo wired between companies stated: “Dow has a contractual commitment to supply DBCP to C and C (Castle & Cooke, Standard Fruit’s parent). Your halt on shipping our outstanding orders is viewed as a breach of contract.” There were conditions--a letter from Castle & Cooke acknowledging DBCP’s toxicity and indemnifying Dow against all claims. There were calculations--a public relations release crafted for use by both companies “in case of adverse press reactions.” There was, finally, an agreement--Dow continued selling DBCP to Standard Fruit in Costa Rica until at least November, 1978, more than a year after the pesticide had been recalled from American users.

The workmen’s compensation settlements eventually provided by Costa Rica’s National Insurance Institute ranged from $500 to $4,000, and some men got nothing. Appeals followed, which in Costa Rica are handled by the federal judiciary and its staff of scientific advisers. In this fashion, the banana workers’ troubles first came to the attention of Chavez, the forensic toxicologist.

When Chavez traveled to the plantations, he found workers suffering from alcoholism and impotence, a psychological offshoot of the sterility. He found workers being mocked by others--one was called El Conejo, the rabbit. He found workers whose wives had left them. He found workers who’d seen their wives come home pregnant by other men.

Back in San Jose, Chavez argued with insurance institute physicians about the concept of pain, anguish and suffering, an uncommon notion in most foreign legal systems. It doesn’t incapacitate their working ability, the doctors would insist. You should worry not about the corporations but about the Costa Rican people, Chavez would reply.

Soon after, he decided to call his friend in Texas.

To Baron & Budd, which devotes its entire practice to claims involving toxic exposure, the Costa Ricans’ cases looked alluring--the California workers sterilized by DBCP, after all, had won amounts ranging from $500,000 to $4 million, and Baron & Budd’s cut of any award would be 40%. But the case also looked tricky. The challenge was to get the Costa Ricans into a U.S. courthouse.

The federal system and every state have rules to keep cases out of their courts if they have no significant connection with the forum where they are filed. Linked with these rules is a relatively obscure doctrine called forum non conveniens , rooted in 19th-Century British common law. By invoking it, a judge can throw out a case even when the rules say it should be heard, simply by deciding the forum was not a convenient one for all parties in the case.

The doctrine was hardly ever invoked until the mid-1970s, when the federal courts, besieged by a mushrooming number of complex multinational tort actions, began using it with greatly increasing frequency. In 1981, the U.S. Supreme Court endorsed it, and over the years so have 40 states. It was on the basis of forum non conveniens that a New York judge in 1986 dismissed lawsuits arising out of the 1984 Union Carbide disaster in Bhopal, India.

The Costa Ricans first tried to buck this trend in Florida, only to have a federal judge reject them in 1983. Next, they tried California, also vainly.”

Texas did not, at first, appear any more promising. Baron & Budd had filed a lawsuit there in 1984, but a district judge had dismissed it three years later. Then the tide turned. In March, 1988, a court of appeals panel ruled that an obscure 1913 state statute gave foreigners, under certain conditions, an absolute right to file claims in Texas courts.

The business community was stunned. Memos were drafted, meetings called. A flood of friend-of-the-court briefs soon began inundating the Texas Supreme Court, coming from a host of powerful corporations and associations--Armco, Bell Helicopter Textron, Conoco, Exxon, the Motor Vehicle Manufacturers Assn., the Texas Chamber of Commerce.

Much of the argument did not so much address the law as express dismay at the practical consequences of letting the Costa Ricans into Texas courts.

Doing so, it was observed, would “work an economic hardship on Texas residents and corporations.” Plaintiffs “will name Texas corporations as defendants even when involvement is speculative or colorably nonexistent.” The result would be “unnecessary expense to Texas business and residents . . . (which would) undo with one stroke all efforts to encourage businesses to incorporate or relocate to Texas.” If Texas becomes “the courthouse of the world,” a “dumping ground” for claims by foreigners, Texas businesses may be rendered “unable to compete abroad.”

Eventually, representatives of certain large multinational corporations found themselves in the curious position of fervently denouncing “colonialism,” which is how they described the prospect of imposing the values of the American judicial system on another country. “It seems to me the people of Costa Rica have established the appropriate court system for accidents occurring in their country, just as people of Texas have done in their state,” said Brad Gahm, vice president and general counsel of the Texas Assn. of Business. “Why can’t Costa Rica determine for itself?”

Budd and Siegel offered all the appropriate counter-arguments: When decisions are made, someone should be accountable; the lack of a sophisticated tort system in places such as Costa Rica is the result not of a conscious decision but a lack of legal evolution; statutes should not be binding only if they help business interests; high costs, along with assorted legal restrictions, will prevent all but the most meritorious cases from being filed.

The heart of the plaintiffs’ response, though, involved not an argument at all but a hard fact: If the Costa Rican banana workers claims are not heard in an American courtroom, Budd and Siegel pointed out, they almost certainly will not be heard anywhere.

David Robertson, a law professor at the University of Texas who has written on the topic, tracked every reported federal decision over the last 40 years in which the plaintiff was dismissed on forum non conveniens grounds and found that less than 5% ever took further legal action, mainly because tort laws in other lands are so undeveloped. “The idea that this case would ever have gone to trial in Costa Rica is a fiction,” Robertson concluded.

This circumstance was not the decisive issue for all five justices who voted to grant the Costa Ricans a courtroom but it was the driving force behind Justice Doggett’s impassioned concurring opinion.

“What is really involved is not convenience but connivance to avoid corporate accountability,” Doggett wrote. “ . . . Abolishing forum non conveniens will provide a check on the conduct of multinational corporations. Some will undoubtedly continue to endanger human life and environment . . . until the economic consequences . . . are such that it becomes unprofitable to operate in this manner . . . .”

Among the many agitated statements and denunciations that this opinion provoked, there were more than a few pointed reminders that Justice Doggett, before getting elected to the bench, had been a plaintiffs’ attorney. It’s fair to say the perennial tension between plaintiffs’ attorneys and the business community was boiling over. The dispute by then had come to have as much to do with politics and self-interest as with law and moral responsibility.

“It’s an invitation for plaintiffs’ lawyers to file lawsuits,” Gahm fumed after the state high court’s ruling. “Business clearly has economic self-interests here, yes, but those guys are pursuing their own economic interests too.”

“Like turn-of-the-century wildcatters, the plaintiffs in this case searched all across the nation for a place to make their claims,” Justice Eugene A. Cook wrote in his dissent. “Today they hit pay dirt in Texas.”

In early December of 1990, sitting in the Bar La Guaria, a bare, murky tavern deep in the Costa Rican tropics not far from Standard Fruit’s Valle de la Estrella banana plantation, Budd and Siegel shrugged and shook their heads when recollecting the fiery denunciations they’d left behind in Texas. They did not always seem exactly sure how to respond.

They could fairly point out that their law firm had gambled $140,000 so far, with prospects of $1 million more in expenses and no guarantee of recovery, but they would also have to acknowledge that, back home, Budd drove a Jaguar, not a Toyota. They would look foolish trying to deny that they had been forum shopping, because they had combed the country for years seeking a hospitable courthouse. And the Texas Supreme Court ruling indeed was an invitation, however restricted, to plaintiffs’ attorneys.

Several of the lawyers for plaintiffs hurt in the Bhopal disaster had already started talking about suing Union Carbide in Texas, where it does business. Lawyers specializing in airplane disasters also were circling overhead--”In a remarkable recent decision . . . the Supreme Court of Texas has opened a hole in the dike . . . “ the noted aviation lawyer Lee Kriendler recently told his colleagues in a New York Law Journal article.

Try as they might, though, Budd and Siegel could not see a resemblance between themselves or the Costa Rican farm workers and “turn-of-the-century wildcatters” out to “hit pay dirt.”

Perhaps it was just the setting, and the company. A warm unrelenting rain was pounding on the Bar La Guaria’s tin roof. Finding this meeting place along a dirt road near Costa Rica’s lush Caribbean coast had been harder even than locating the social hall in Rio Frio; there had been delays while Roberto Chavez sought directions from machete-waving passersby, then assisted a soaked, drunken women found sprawled in the middle of an isolated road.

When they finally arrived in Guaria, they discovered only 75 plantation workers awaiting them, far fewer than in Rio Frio. Again, most had gotten there by bike or horse, summoned by radio. Again, there were those who talked of sadness and loss. There was one with seven brothers, all sterile. There was one asking who would get his settlement, if any, after he died, because he had no children.

And there was Domingo Perez Hernandez, 47, a thin, earnest man who regularly adjusted his thick black-framed glasses as he sat talking at a table in the bar’s far corner. For three years on the Valle de la Estrella plantation, it had been his job to inject the pesticide DBCP into the soil.

“No one told us of danger,” he said. “Whenever the liquid touched my skin, I felt it was penetrating me. First it felt chilly, then warm. Three years after getting married, I went to the doctor because we had no children. They found I had no sperm. They gave me 7,000 colons (about $700) compensation. My wife is very young. She has adapted herself to the life God has given us. But I feel sexually weak. The others have a nickname for me--’The Ox’--because I am a very hard worker without balls.”

The questions posed to Perez that dark, wet afternoon implicitly invited expressions of his anger, but he, a devout Evangelical, had none to give. The bitter debate in Texas was distant, and not for him.

“I look to God,” he said. “He knows better than I. I have been assisted by God. This is God’s will. I am not angry at the company, although it is a consistent pattern, this treatment of the workers. I just pray to God to give the good people, the attorneys, the wisdom and strength to continue fighting to help victims and prevent more victims.”

No, Perez said, he does not feel bad when he looks at other peoples’ children.

“How could I?” Perez said. “When I look at them, I see the glory of God.”