Problem: The Long Road through Court

In the summer of 2007, 12 banana plantation workers from Nicaragua got their day or, rather, their four months in a California federal district court. The workers were employed by Dole Food Co. on banana plantations in Nicaragua, where a pesticide known as DBCP, manufactured by Dow Chemical Co., was used to increase the weight of the banana harvest and help with rodent and pest control. In 1977 the U.S. government suspended the use of the chemical after complaints arose of sterility in California workers. When Dow informed Dole that it would no longer be producing the chemical, the two companies agreed that Dow would sell to Dole, for use in Central America, the more than 500,000 gallons that had been returned to it by other purchasers. The plaintiffs were some of the workers who were exposed to DBCP while working for Dole in Nicaragua, workers who then became sterile. After a successful suit was brought in the United States in the early 1980s on behalf of affected California workers, U.S. law firms began suing in U.S. courts on behalf of workers from other countries. Nearly every case ended when American courts ruled that the principle of forum non conveniens required the lawsuits to be maintained in the countries where the workers had suffered their injuries. Their view was that Nicaragua was a more appropriate forum for the dispute. So the workers tried again at home. After lengthy delays and, ultimately, a change in Nicaraguan law to facilitate the DBPC lawsuits, in 2002 a Nicaraguan court awarded nearly $490 million in damages and other judgments followed. But so far Dole and Dow have successfully blocked all enforcement of the judgments in U.S. courts. The new laws in Nicaragua have meant, however, that Dole and Dow have ceased invoking the forum non conveniens argument against new suits in the United States. After a month of deliberations in the 2007 case in California, the jury awarded six of the Nicaraguan workers a total of $3.3 million. Following a number of post-trial motions, the companies successfully reduced the award to $1.58 million to be shared among four of the plaintiffs. The jury decision as to one plaintiff was overturned and Dole was granted a new trial as to another.76 In the years following, Dole filed post-trial motions to have the jury verdict thrown out; in 2011, the judgment was vacated. At the same time, each side accused the other of fraud, including fraud instigated by the opposing attorneys, but the California State Bar is no longer pursuing investigations of those attorneys.77

Questions

1. Why do you think Dole and Dow did not object to the new suits brought in the United States after the plaintiffs' successful suit in Nicaragua?

2. Do you think the Nicaraguan judgments should be enforceable in the United States? Why or why not? 3. Apart from whether Dole or Dow Chemical or both are liable for health issues associated with exposure to DBCP, was it ethical for Dole to use and Dow to supply DBCP for use in Nicaragua and elsewhere after the chemical was banned in the United States? Explain.