CHINANDEGA, Nicaragua – The people crammed into the stifling basketball gym. They filled the court, lined the walls and tumbled beyond the doors onto the sun-blistered streets.
They had gathered to hear a promise of justice.
Many had spent their lives toiling on banana plantations that U.S. companies operated in this region some 30 years ago. By day, the workers had harvested bunches of fruit to ship to North American tables. At night, some had sprayed pesticide into the warm, humid air to protect the trees from insects and rot. 0527 04
As the decades passed, the workers came to believe that the pesticide, called DBCP, had cost them their health. Prodded by U.S. lawyers, thousands joined lawsuits in the U.S. and Nicaragua alleging that the pesticide made them sterile.
The U.S. firms that sold and used the pesticide have never faced a U.S. jury trial over its use abroad. Last month, a Los Angeles attorney named Juan J. Dominguez stood before a sea of nearly 800 dark, hard faces and predicted that the day of reckoning was at hand.
“We are fighting multinational corporations. They are giants. And they are going to fall!” Dominguez thundered.
The crowd exploded. They leapt to their feet, waved their hats, shook fists in the air. “Viva! Viva!” they chanted.
The scene last month foreshadowed a legal drama set to play out in a Los Angeles courtroom this summer, when a lawsuit filed by Dominguez and his partners could end a struggle that has sprawled across three decades and courtrooms on four continents.
For the first time, a U.S. jury will have the chance to weigh the accusation that Dole Food Co. knowingly used a pesticide manufactured by Dow Chemical Co. that sterilized workers in Latin America three decades ago.
The complexity, history and geographic spread of the case demonstrate how legal systems have failed to keep pace with the rapid movement of goods across international borders. Jurisdictional and procedural issues have repeatedly impeded attempts to sue U.S. companies in the United States for alleged wrongdoing in other countries.
“The question is where do we litigate these issues,” said Alejandro Garro, a Columbia University law professor and expert in international law. “The answer is that we don’t have a global law. We are building it on a case-by-case basis.”
Dole, the Westlake Village-based food giant, and Dow, of Midland, Mich., deny the allegations. Both companies acknowledge that the pesticide DBCP has been linked to sterility in men exposed to it while manufacturing it in factories. And both companies acknowledge that the product was used in Nicaragua’s banana fields.
But the companies contend that there is no proof that DBCP (dibromochloropropane) sterilized any field worker. The quantities of DBCP used were too small, and the open-air conditions too diffuse, to cause harm, the companies say.
“Dow views most of today’s claims relative to the product as without merit,” said Dow spokesman William Ghant. Dow acknowledged that the possibility of harm existed but said the product was safe as long as instructions were followed.
Dole said it applied DBCP in Nicaragua 13 times in the 1970s, with each spraying lasting about two weeks. The pesticide was an effective killer of tiny worms that caused the roots of banana plants to rot.
“There is no reliable scientific evidence at all that points to this pesticide causing any injury to field workers in the open air environment,” said Michael Carter, Dole’s general counsel. “There is no science to support that. None.”
Earlier this month, Los Angeles County Superior Court Judge Victoria Chaney made a ruling that broadened the potential reach of the case.
Chaney linked Dominguez’s case with four other pending lawsuits in Los Angeles involving sterility claims on behalf of more than 3,000 former banana workers from Costa Rica, Honduras, Guatemala and Panama. In addition to Dow and Dole, Del Monte Fresh Produce Inc., Chiquita Brands Inc. and Shell Oil Co. are named as defendants in those cases.
Cincinnati-based Chiquita declined comment on the lawsuit but said it used the chemical briefly in the 1970s in Panama and Costa Rica. Shell said it sold no DBCP in Central America after 1974 and that “few, if any” banana workers were harmed by its product. Del Monte said it used the pesticide briefly in Costa Rica and Guatemala and declined further comment.
In the middle of the dispute are this region’s people. The case has spread its own kind of toxin, infecting every facet of life in this fertile bottomland wedged between volcanoes and the ocean on Nicaragua’s Pacific Coast.
After 30 years of being told they have been poisoned, locals tend to blame the region’s many health and environmental woes on DBCP.
They call themselves the afectados – the affected ones.
13 men, 1 lawsuit
Jose Adolfo Tellez never wanted to be a legal pioneer.
With dark hair and a broad, round face, Tellez lives in a two-room cinder-block house in Chichigalpa, a town in the heart of Nicaragua’s banana zone.
Early each morning he rides his battered black mountain bike seven blocks along rutted streets to the central market, a chaotic warren of shops where beef hangs in strips and baskets of papaya are lighted by shafts of sunlight.
Tellez haggles over prices before the day’s damp heat descends. Heading home, he spends a cordoba – about 5 cents – for a brick-sized block of ice to chill his meat and vegetables.
His main job is tending to his mother, 80, who shuffles across the home’s concrete floors with a donated walker. There is no one else to do the job. Tellez, 58, has no children, no wife, to help him.
He blames DBCP.
Tellez is the lead plaintiff in Tellez vs. Dole, scheduled for trial July 2. He joins a dozen other named plaintiffs, all of whom have had tests administered by their lawyers showing that their semen does not contain sperm.
Tellez believes that he became sterile after going to work outside the small town of Posoltega, 15 miles southeast of here, where Dole began operations in Nicaragua in the late 1960s.
On the plantation, where long, green alleys of banana trees stretched across more than 1,400 acres, he harvested bananas, cut weeds from the plants, trimmed leaves and hauled irrigation tubes.
Tellez said he was never given protective gear while working in the fields. Nor, he said, did anyone tell him that DBCP could cause sterility.
“They told us to go to work, and we would go to work,” Tellez said.
Tellez married, but he and his wife were unable to have children. She eventually left him to live with another man, Tellez said, and soon had a child.
Tellez had thought his wife had the problem. But tests showed he was sterile.
In the macho culture of rural Nicaragua, children are a measure of wealth and power. Tellez had neither. He was labeled a buey – slang for a castrated bull.
“It demoralized me,” he said. “I felt like a useless man.”
Sterility and pesticide
Epidemiological studies have confirmed that DBCP causes sterility in human males, according to the U.S. Agency for Toxic Substances and Disease Registry.
Evidence of other human health effects is less clear. However, lab animals exposed to DBCP have developed stomach and lung cancers and kidney and brain damage, according to the agency.
DBCP’s toxicity first made news in 1977, when about three dozen factory workers at an Occidental Petroleum Corp. subsidiary in Lathrop, Calif., where pesticides were mixed, reported problems having children. Tests showed the factory workers had zero or below-normal sperm counts.
Within months, the EPA had suspended most uses of DBCP. Government hearings revealed that Dow and Shell Chemical Co., then a subsidiary of Shell Oil Co., the primary makers of DBCP, had long known about its dangers. Tests dating to the 1950s showed the chemical atrophied lab animals’ testes.
Workers began filing lawsuits. In 1983, Duane Miller, a young Sacramento attorney, won a $4.9-million judgment against Dow on behalf of six Occidental workers. Two years later, the EPA permanently banned the use of DBCP in the United States.
It was the first skirmish in a legal war that soon spanned the globe.
U.S. law firms began suing in U.S. courts on behalf of workers in other countries – more than 50,000 plantation workers over 30 years in countries including the Philippines, Nicaragua, Costa Rica and Ivory Coast. The defendants have been the manufacturers of DBCP – Dow and Shell – and the fruit companies that used it: Dole, Del Monte and Chiquita.
Nearly every case ran into the legal doctrine forum non conveniens, which says lawsuits should be heard in the countries where the damage occurred. Lawyers for the companies convinced judges to transfer the cases to the countries of origin.
In practice, that stalled the lawsuits for years. Complex trials bogged down in ill-equipped Third World courts. Plaintiffs’ law firms lacked money to pursue cases in foreign countries.
The companies settled some cases without admitting culpability. In 1992, several firms reached a settlement in which $20 million was paid to 1,000 Costa Ricans. In 1997, Dow and other companies paid $41.5 million to 26,000 workers worldwide.
The money was divided among thousands of plaintiffs. After attorneys’ fees, some workers received no more than a few hundred dollars.
By the late 1990s, banana workers and attorneys were frustrated by their inability to get a case before a U.S. jury, with the potential for higher awards and, more important for some, a finding of wrongdoing by the companies.
New rules in court
Then Nicaragua changed the rules. In 2000, its legislators passed a special law to facilitate DBCP lawsuits.
The law stacked the deck in favor of the workers: DBCP was automatically considered the cause of sterility in any banana worker. Companies had to deposit $100,000 with Nicaraguan courts simply for the opportunity to defend themselves.
In December 2002, a Nicaraguan judge awarded nearly $490 million to about 450 workers. Other big judgments followed. Dow and Dole have so far blocked attempts to enforce the Nicaraguan judgments in U.S. courts.
The new law made Nicaragua hostile territory for Dow, Dole and other defendants. That created an opportunity for new lawsuits in the United States, which Dole and Dow no longer opposed.
Dominguez, perhaps best known for his ubiquitous personal-injury ads on Los Angeles buses, seized the opportunity. He partnered with Sacramento attorney Miller, who had filed the first DBCP lawsuits in the U.S. nearly 30 years earlier, and they filed suit in Los Angeles in 2004.
To build the case, Dominguez opened an office here, in the center of Nicaragua’s banana belt. He connected with local union bosses, ran advertisements on the radio, even sponsored a local baseball team.
Thousands came forward to provide sperm samples in a back room set up in Dominguez’s office, a yellow and brown one-story building near the main square here. The samples were analyzed by a laboratory paid for by the attorneys.
Dominguez and Miller filed legal briefs citing old corporate documents which, they said, showed that Dole officials were aware of the dangers. In a 1978 memo, a top Dole official warned that implementing all the procedures in a guide for safe use of DBCP was “well nigh impossible.”
“Did they warn you about this? No,” Dominguez told another crowd at a recent rally. “Did they put you in danger? Yes.”
Although only 13 plaintiffs have been named in the U.S. suit, a victory could result in settlements for the thousands of other former banana workers who can show sterility problems. An original defendant in the Tellez case, Amvac Chemical Corp. of Newport Beach, settled for $300,000 last month.
Dominguez has registered about 12,000 clients in Nicaragua alone. Worldwide, the number of possible clients is estimated to be hundreds of thousands.
Dole and Dow have long experience with such lawsuits. In some instances, the companies have been able to show that supposedly infertile men fathered children. The companies have also discovered plaintiffs who did not work on farms that used DBCP.
Dole has settled some cases directly with workers. It recently announced a program in Honduras to pay up to $5,800 to banana workers who agreed to drop their claims against the company. The company is seeking a similar accord in Nicaragua. Such settlements, Dole said, were not admissions of wrongdoing.
“We don’t want to spend our lives forever dealing with this, so the company has adopted an approach to find a reasonable resolution to these pending claims,” said Carter, Dole’s general counsel.
History of contamination
It is not easy to show that DBCP caused a worker’s sterility or health problems, especially in a poor country like Nicaragua.
The region around Chinandega has long been dominated by agriculture, producing cotton, sugar cane and other crops. For decades, growers – from both the United States and Nicaragua – sprayed DDT, DBCP and other highly toxic pesticides, many linked to developmental or health problems.
Seven studies conducted from 1995 to 2002 found contamination in community wells. Locals routinely drink water tainted with pesticides, said Valeria Delgado, an investigator at Nicaragua’s Center for the Investigation of Water. None of the studies tested specifically for DBCP.
Studies have also found that water supplies are laced with fecal matter and other pollutants. Medical care is scarce. Diet is subsistence level. Many of the men drink heavily.
Medical officials acknowledge that they have no proof, just strong suspicions, that the town’s ills are linked to pesticides.
“If you work in this environment and you wind up sick, I can presume it’s an effect of chemical intoxication,” said Yolanda Garcia, a toxicologist at the local clinic. “I can presume, but I can’t prove.”
Death of a mother
All across Nicaragua’s banana region, in churches and classrooms, at funerals and bars, DBCP is blamed for every illness.
One hot day last August, Leticia Vidabre, 63, lay dying on a mattress on the concrete patio behind her house.
A neighbor waved a folded piece of paper to keep off the flies. Acrid smoke wafted from a nearby cooking fire. Next door, salsa music blared.
Slipping in and out of consciousness, Vidabre struggled to tell her story. She worked in the packing section at one of Dole’s plantations, she said, putting bananas into boxes for shipping to the United States.
She said she believed that washing the bananas and drinking water on the plantations had exposed her to DBCP. After 16 years of working on a plantation called San Pablo, Vidabre began to feel sick. Her back hurt. Headaches were constant. She quit and became a housewife.
“When I started work at San Pablo, I was healthy. When I left, I was in a bad way,” she said.
Last year, a doctor told her that her kidneys were not functioning well. A large woman with heavy lips and eyes, Vidabre began spending her days in bed.
“Those bananas weren’t for us,” she said. “But so many of us have died.”
A month later, on Sept. 6, Vidabre died. She was buried in the town cemetery, just down the road from the old banana plantation.
Her relatives blamed the pesticide. But nobody really knew. Los Angeles Times