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Final arguments start in Dole pesticide case

Latin American men claim sterility


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LOS ANGELES — Even as Dow Chemical Co. was saying it was stopping production of a toxic pesticide and refusing to be held accountable for people exposed to it, Dole Food Co. continued using it in Nicaragua in the 1970s, a lawyer for banana workers said Wednesday.

The closing argument came in the final days of a trial that's lasted three months in Los Angeles District Court. The case involves 12 Nicaraguan men who claim they became sterile after working at Dole's Latin American banana plantations.

It is the first foreign case to take American companies before a United States jury. The litigation dates back to the 1980s. The outcome will be significant for the companies when deciding whether to settle thousands of similar claims filed by foreign workers.

The banana workers allege the manufacturer of the toxic pesticide DBCP — Midland, Mich.-based Dow — and Dole caused them to become sterile by not alerting them to the risks of being exposed to DBCP, which was used to kill microscopic worms that invade plant roots.

The companies assert that the workers weren't exposed to enough chemical to cause health problems and that their individual claims involve faulty causal connections.

Dave DeLorenzo, president and chief executive of Westlake Village-based Dole, was present at the start of closing arguments Wednesday.

The workers' lawyer Duane Miller argued that Dole demanded Dow keep shipping the pesticide after Dow said it would no longer produce the pesticide.

Miller then pointed out DeLorenzo's previous testimony: "We told them that we expected them to keep delivering to us."

DBCP was manufactured by several chemical companies, including Dow and Shell, and was registered by the U.S. government for use on food crops at that time.

Dole applied DBCP on banana farms in Latin America and the Philippines, and on pineapple farms in Hawaii.

The Environmental Protection Agency banned its use in 1979, two years after Dow announced it was suspending its use because male farmworkers in Arkansas became sterile.

Miller said Dole was alerted to Dow's action in 1977, but opted to continue using DBCP until the EPA banned it.

Worldwide, Dole is facing DBCP cases claiming damages totaling $41 billion, with Nicaraguan lawsuits representing about 87 percent.

"This is a massive international public health catastrophe that was entirely foreseeable and predictable and was all about money," said Raphael Metzger, a Long Beach lawyer who represents 675 people in similar cases pending in state and federal courts.

Plaintiffs' lawyers have been criticized for using state courts to bring lawsuits for foreigners seeking damages.

"Why should a jury in Los Angeles be allowed to impose punitive damages against a company for actions that were legal in Nicaragua and caused no injuries in California?" an editorial in The Wall Street Journal posed last month.

"All of the activity regarding this pesticide occurred in California," Metzger said. "It was designed here, it was developed here, it was patented here, all the research went on at the University of California at San Francisco. California was the hub of all this activity."

Defense lawyer Gus Filice argued in his closings that the men who are suing did not have enough exposure to DBCP to cause adverse affects on their systems. Filice also revisited a video showing water washes being applied to the fields.

"Water was applied 24/7 as regular irrigation water," he said. "People got wet because of irrigation water. The evidence is that DBCP was effectively washed off these leaves."

Closing arguments continue today.

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