A Los Angeles jury on Monday awarded $3.2 million to six Nicaraguan farmworkers who had sued Dole Food Co. Inc., arguing they had been rendered sterile some three decades ago by the international corporate giant's application of a banned pesticide on the plantations where they worked.
Jurors return today to consider whether Dole, and codefendant Dow Chemical Co., should be punished with more monetary damages. They will decide whether Dole acted maliciously in failing to warn its workers of the danger, and whether Dow engaged in gross negligence in manufacturing the chemical.
Already, courts in Nicaragua have returned more than $600 million in judgments against Dole and other companies, according to lawyers for the workers -- judgments that have proved impossible to collect so far. The verdicts announced Monday marked the first case of foreign farmworkers prevailing in a U.S. court against Dole and Dow over harm from the pesticide, DBCP.
Four more lawsuits are pending in Los Angeles in which thousands of workers from Costa Rica, Honduras, Guatemala and Panama allege that they, too, were injured from the use of DBCP on plantations. Lawyers for workers say tens of thousands have sued worldwide over the chemical.
Dole officials called the verdicts unjust and said they would be appealed. They pointed out that jurors rejected the allegations of six other Nicaraguan workers.
"Dole will not be intimidated by ugly accusations, fraudulent claims, junk science or threats from U.S. trial lawyers, and is prepared to fully litigate each and every case of workers over the last 30 years," said Dole Vice President C. Michael Carter.
The plaintiffs' lawyers and their supporters hailed the outcome.
"It's good to see justice done for all the workers," said Stephenie Hendricks of the Pesticide Action Network North America. "It's a hopeful sign for corporate accountability in the United States and overseas."
The case was widely seen as a test of how the U.S. legal system responds to injuries inflicted through globalization. Because the harm occurred in Central America, the defendants had argued for years that the trials should take place there, rather than in the United States. Both sides considered the case a bellwether that would determine what sorts of claims would be pursued in the future.
DBCP has been banned virtually worldwide. The chemical fights pests that attack the roots of fruit trees, but also stops rabbits from procreating, and allegedly rendered sterile the workers who produced it.
The chemical boosts the weight of banana harvests by 20%, according to evidence in the six-month trial before Los Angeles County Superior Court Judge Victoria G. Chaney.
Jurors found that DBCP was defective and that its risks outweighed its benefits. They also found that Dole actively concealed the danger from its own workers. Dow's share of the damages ranged from 20% to 40% of the awards to each worker.
The chemical robbed the workers of their "male sexual identity," argued Duane Miller, the lead counsel for the workers.
The legal struggle over DBCP has run for 30 years and shows how accelerating trade among nations has at times outpaced the ability of legal systems to keep pace.
DBCP was suspended for most uses in the United States in 1977 after workers at a plant in Lathrop, Calif., were found to have low or zero sperm counts after working with the compound. Miller successfully represented those plant workers in lawsuits against the manufacturer.
Monday's verdict came in a lawsuit involving field workers, not production workers. The point at which exposure becomes dangerous to field workers -- through contact with the skin or inhalation -- was a key question in the trial. Jurors were polled individually by the judge Monday, and several verdicts involved 9-3 splits -- the maximum disagreement allowed in civil cases.
In its defense, Dow contended that the chemical was not defective if administered properly, and Dole denied that it had fraudulently concealed the danger from workers, according to court papers.
In the mid-1970s, Dow warned Dole of dangers associated with human contact with the chemical, and ended production, according to testimony. But Dole, according to court papers, threatened to sue if Dow did not honor an earlier production contract. The firm then accepted about 500,000 gallons of the chemical, including quantities that Dow had reclaimed from other users, and sent much of it to banana plantations in Central America.
Dole contended that the application of the chemical was carefully controlled and conducted at night to minimize the hazard to workers.
"They take the position that our clients weren't in the field when they were treated [with DBCP] at night, and when they reported at work in the morning there was little exposure," Miller argued in court. "Our position is that they used 1.4 million pounds of it."
Dole's lawyer, Rick McNight, declined to comment Monday. In the trial, he argued that the workers failed to establish proof that they had been exposed to too much DBCP.
McNight stressed in closing arguments that half of the workers had not been proved to be fertile before exposure, and alleged that many had misstated their conditions under oath. He also pointed out that many Dole executives who were involved in decisions about the chemical, made over 30 years ago, are now dead.
At the trial, workers testified that they could tell something was not normal on the Nicaraguan farms where they worked, but said Dole did not tell them what it was.
Worker Jose Gutierrez testified that in the mornings, he would smell "an odor sort of like copper. It was a foul odor. It would drop from the leaves and it would fall upon us." Some workers slept on the plantation, where shelters were open on all sides, according to transcripts of testimony by workers.
In closing arguments, Gennaro Filice, a lawyer for Dow, urged jurors to "take into account their society and where they live" to compensate "in the context of their world and their society."
Chaney quickly intervened, instructing jurors that they "must not be influenced by the plaintiff's disability, gender, race, religion, ethnicity, sexual orientation, age, national origin or socioeconomic status."
The focus moves today to whether Dole and Dow should face punitive damages. Miller earlier argued that punitive damages were justified, citing a 1963 warning from a Dole pineapple researcher that DBCP is hazardous. He also cited a 1960 Dow report that concluded that spraying DBCP could cause "serious adverse effects."
Miller produced a memo written in 1978 by Jack DeMent, a senior Dole executive, that reflected a proposed policy that "people in the areas to be treated will be notified to the effect in the language of the workers involved." Miller said a comment found on the draft undercut the good intentions. The comment read: "This is not operationally feasible and does not need to be implemented."
Dole, based in Westlake Village, said the verdict was not likely to have a material effect on its finances. A Dow spokesman praised jurors, while disagreeing with the verdict in favor of the six workers, and declined to comment further.