A sticky situation for L.A. lawyer
In the sweltering hub of Nicaragua’s once-thriving banana industry, Juan Dominguez saw an opportunity.
He arrived in Chinandega in 2002, shortly after watching a CNN report about men claiming they had become sterile from exposure to DBCP, a pesticide used on banana plantations in the 1970s. Until then, Dominguez was best known as the mustachioed personal injury lawyer pictured on the backs of Los Angeles buses and had no experience in international law.
“I’m not a religious man,” he said recently, “but this felt like a calling.”
Today, it feels more like a disaster.
Dominguez stands accused by a judge of participating in a broad conspiracy built on phony claims. Cases that he expected would go to trial this year have been thrown out. A $3.2-million jury verdict on behalf of six plaintiffs in 2007, which he had hoped would be the first of many victories against Dole Food Co. and Dow Chemical Co., is likely to be overturned.
The accusations against him came in a highly unusual proceeding in which Los Angeles County Superior Court Judge Victoria Chaney relied on secret testimony collected by Dole. Dominguez and other plaintiffs’ attorneys had set out to find legitimate claims but turned to fraud when they found few, she wrote. What resulted was a “heinous” scheme “cemented together by human greed and avarice,” she said in making her ruling.
Dole, which ran the banana plantations at the time, has used the ruling to cast doubt on dozens of other DBCP claims in U.S. courts, including efforts to enforce tens of millions of dollars in judgments from courts in Nicaragua. “An international legal shakedown,” Theodore Boutrous, an attorney for Dole, calls the claims.
Dominguez, 52, now faces investigations by the State Bar of California and scrutiny by the U.S. Department of Justice.
He said he has done nothing wrong: “I don’t engage in anything illegal or unethical.”
“The whole thing is a crazy nightmare,” he said.
In Nicaragua, the judge’s ruling was widely met with disgust. “That Chaney,” people say. The local version of events blames the multinational companies and their pesticide for much of what ails people. Anyone who disagrees is accused of being paid by Dole.
Here, DBCP is more than a pesticide. It is a political movement. The forces of poverty and corruption cloud the most basic facts surrounding the claims. The truth that can be established is one that Chaney alluded to in her ruling: If Nicaraguans truly were injured by DBCP a generation ago, what has happened since makes identifying the victims nearly impossible.
In the late 1970s, several men repackaging DBCP at a factory in Lathrop, Calif., realized that they all had the same problem: They couldn’t get their wives pregnant.
After the chemical was shown to have caused their sterility, the United States suspended most uses in 1977 and banned DBCP two years later. Dole continued to spray it on banana plantations in Nicaragua until at least 1980.
It’s unclear what level of exposure farmworkers had to DBCP. The irrigation workers who sprayed the chemical to kill worms in banana tree roots presumably got the highest doses. But science hasn’t determined what minimum level causes sterility.
Regardless of those unknowns, the chances of Nicaraguans winning compensation were slim. The courts did not have the resources to handle such complex litigation and, in any case, couldn’t force U.S. companies to pay up. And Dole successfully argued that U.S. courts were inappropriate forums for the Nicaraguan cases.
Then in 2001, Nicaragua enacted a fast-track law that made it far easier for alleged DBCP victims to win judgments in Nicaragua.
Suddenly Dole, which is based in Westlake Village, was less resistant to having DBCP cases heard in the U.S. courts. Several U.S. firms, lured by the potential for big jury verdicts, set up operations in Chinandega.
Their arrival fanned a political movement around DBCP, known to Nicaraguans by the brand name Nemagon. To many poor Nicaraguans, it became a catchall cause for their ills: cancer, kidney trouble, headaches, blemishes, nervousness, even bad eyesight.
Three years ago, several hundred people claiming to be victims erected a shantytown in front of the national assembly in Managua, the capital, to draw attention to their complaints. They are still there.
On a recent day, one of the encampment’s leaders, Altagracia Socorro Solis, ushered an old woman into a shelter and pointed to her swollen knees.
“See the deformities,” Solis said. “It’s the pesticide.”
More than 20,000 men and women have signed on as clients with law firms in Chinandega, equivalent to about a sixth of the city’s population. Many had been rounded up by union bosses, activists and paid recruiters.
Wilber Wilson, a 60-year-old taxi driver in the city, said a former neighbor asked him to join a lawsuit.
“I told him, ‘No. I wasn’t a banana worker,’ ” he said. “He said, ‘It doesn’t matter.’ ”
In Chinandega, Dominguez partnered with a local lawyer, set up the Law Office of the Ex-Banana Workers and began a recruiting effort akin to a Nicaraguan political campaign.
Drawing interest with free raffles of bicycles and TVs, he filled the local stadium with potential clients and railed against the multinationals like a preacher against the devil.
Many Saturdays he went on national radio to talk about DBCP, often calling in from Los Angeles. He liked to be introduced as a “super lawyer,” a designation bestowed upon him by a U.S. legal magazine.
He made the same pledge to the Nicaraguan clients that he made representing poor Spanish-speaking accident victims in Los Angeles: “If we don’t win, you don’t pay.”
His partner in Nicaragua, Antonio Hernandez Ordenana, handled the Nicaraguan cases, while Dominguez focused on those deemed to have the best chances in the United States.
Dominguez, who was born in Cuba and came to the United States at 10, said he believed his Latin roots and fluent Spanish gave him an advantage over the other U.S. law firms. He immersed himself in Chinandega, buying a hotel and sponsoring amateur baseball teams.
He welcomed members of the media, including a Los Angeles Times reporter who in 2007 wrote a front-page story about his cause. A filmmaker, Fredrik Gertten, followed him for a documentary.
“He loved to have the camera team around him,” said Gertten, who was sued last month by Dole over the film, called “Bananas!” “It added some excitement to his life, and he was Mr. Something.”
Jose Francisco Gutierrez Fletes, 58, who worked as a “captain” to recruit and manage plaintiffs, said he faced constant pressure from Dominguez’s office to deliver more. “We had to keep bringing people in,” he said.
Dominguez’s operation signed up about 12,000 people in Nicaragua, of whom 4,500 have cases in courts there. Several dozen cases were chosen to be filed in U.S. courts.
Potential clients were vetted by interviews and medical exams, Dominguez said. They had to be sterile, without any children born after the men claimed to have been exposed to DBCP.
Dominguez said he did not have the final word. Being a negotiator and not a litigator, he had recruited Duane Miller, a Sacramento attorney who had sued and won on behalf of the Lathrop DBCP victims, to try his cases.
Miller sent a Los Angeles specialist in male infertility to Chinandega to conduct exams. That eliminated several men.
Miller declined to comment for this story. Chaney ruled that there is no evidence that Miller or his firm knowingly participated in fraud, adding that her ruling did not address the question of whether they should have known once the cases were filed.
The men brought to the United States were producing little or no sperm, according to court records. But tests could not rule out every other possible cause. Nor could they determine when the men lost their ability to reproduce, a problem that was underscored later when Dole used DNA testing to show that one plaintiff had fathered children in the 1990s.
There was another problem in blaming DBCP: According to Dole, records showing who worked on the farms were destroyed by the Sandinista government in the early 1980s.
The first signs of trouble in Dominguez’s cases came well before Chaney issued her April ruling -- in routine depositions.
In 2005, Miguel Angel Zelaya, wearing new shoes and trousers purchased by Dominguez, boarded an airplane for the first time and flew to Los Angeles.
In Dominguez’s office on the top floor of a 22-story Wilshire Boulevard high-rise, Dole attorneys asked him the names of co-workers, how much he was paid, whether he collected his pay from an office, whether the farm even had an office.
Over and over, according to a transcript, his answer was the same: “I don’t recall.”
Even so, Zelaya’s claim remained alive until Chaney threw it out with the others this year. He was among the nine plaintiffs -- out of 11 -- who had lied about working on banana farms, the judge concluded.
In an interview in July in his house, a dirt-floored shelter with a small stack of logs burning in one corner for cooking, Zelaya stuck by his testimony, even after a reporter pointed out he would have been 11 at the time he said he started working at a Dole farm.
“The lawyers would ask me the same thing five times,” he said. “It was confusing.”
His wife opened a freezer -- there was no electricity -- and pulled out legal documents that had recently arrived from Miller’s firm. He asked a reporter to explain them. A letter said that he would need to find new lawyers.
Zelaya said he had been hoping for money to buy a bus to generate steady income.
The Times interviewed five other plaintiffs in the cases that Chaney dismissed. All continued to insist that DBCP had rendered them sterile.
The most convincing was 57-year-old Jose Adolfo Tellez, who had been featured in the 2007 L.A. Times article. He described in detail the process of applying the pesticide.
The judge ruled that Tellez indeed had worked on a plantation but was lying about having been on an irrigation crew.
Tellez, who lives with his mother outside of Chinandega, said that many people were lying but that he wasn’t. “Those who are really affected, who are truly sterile, are few,” he said.
In a 2008 deposition, plaintiff Francisco Donald Quinonez testified that one of Dominguez’s captains had trained him “like a parrot” to recite facts about the farm. But the captain, Carlota Rivera, said in an interview in Nicaragua that she knew him from their days together on a plantation and helped him only because he is mentally slow.
“We’re still waiting for them to give me the money,” Quinonez said.
Dominguez blamed poverty, illiteracy and the passage of time for clients who did “horribly” in their testimony.
“Many of them have a second- or third-grade education,” he said. “You pair that with an Ivy League-trained lawyer, the best of the best, and you know how that is going to come out.”
Hernandez, his Nicaraguan partner, said the weak depositions proved that the judge was wrong in saying workers were coached to lie.
“Frankly, we didn’t prepare anybody,” he said.
The Dole investigation that served as the basis of Chaney’s ruling consisted of statements from and interviews with 27 witnesses.
The evidence remains mysterious. The witnesses’ names have been kept secret -- even from Dominguez in most cases.
Dole persuaded Chaney, a veteran judge who has handled several high-stakes cases, that witnesses would be in danger if their names were known in Nicaragua. Miller’s firm could be present for the depositions but was not allowed to investigate the witnesses.
Among her most startling findings was that U.S. lawyers, including Dominguez, met in Chinandega with local justice officials, laboratory owners and captains in October 2003 and made arrangements to rig cases in the Nicaraguan courts.
The Nicaraguan judge, Socorro Toruno, who was allegedly there, called the accusation “absurd.”
Two other U.S. attorneys named by the judge, neither of whom was working with Dominguez, deny being present at such a meeting.
Dominguez said he wasn’t in Nicaragua at the time.
“It’s easy to make me the boogeyman,” he said.
At the Law Office of the Ex-Banana Workers, lists of thousands of names of alleged DBCP victims still are taped to the walls.
Dominguez’s Nicaraguan partner is still filing cases in the courts there.
But the dreams of a judgment in the United States are essentially over.
Since Dominguez and Miller have bowed out of Nicaraguan DBCP cases, the plaintiffs in the 2007 case, the sole victory, don’t even have lawyers.
The award in that case had already been reduced and was under appeal before Chaney’s ruling.
Carlos Enrique Diaz Artiaga, 56, who was awarded $452,000, is vague about the details of what the judge did in California but remains hopeful.
“They say we won,” he said.
He lives alone in a cinder-block hut, with a picture of himself at Universal Studios on the wall.
Whatever happens, Diaz said, he is grateful to Dominguez for the trip.
“How’s a poor guy ever going to get a chance to travel on an airplane?” he said.