(Beyond Pesticides, October 27, 2009) U.S. District Judge Paul Huck (Miami) has said a multimillion dollar judgment against U.S. food giant Dole and the Dow Chemical Company cannot be enforced because, â€ś[T]he judgment was rendered under a system which does not provide impartial tribunal or procedures compatible with the requirements of due process of law, and the rendering court did not have jurisdiction over Defendants.â€ť A trial court in Chinandega, Nicaragua, had awarded the money in 2005 to 150 Nicaraguan citizens who believe they were injured by exposure to the pesticide dibromochloropropoane, or DBCP, when they worked on Dole banana plantations between 1970 and 1982. This actiion was taken despite findings in the U.S. that DBCP causes sterility and regulatory action to remove it from the market.
The trial court awarded Plaintiffs approximately $97 million under â€śSpecial Law 364,â€ť enacted by the Nicaraguan legislature in 2000 specifically to handle DBCP claims. The average award was approximately $647,000 per plaintiff. According to the Nicaraguan trial court, these sums were awarded to compensate plaintiffs for DBCP-induced infertility and its accompanying adverse psychological effects.
In similar cases in the past, the companies have refused to pay. Dow Chemical has called such judgments â€śunenforceableâ€ť because the ruling was â€śbased on a law passed in Nicaragua that its own attorney general has called unconstitutional.â€ť Judge Huck says that the law “unfairly discriminates against a handful of foreign defendants with extraordinary procedures and presumptions found nowhere else in Nicaraguan law.â€ť
Dole claims that Nicaraguan courts have issued judgments in 32 such suits for a total of $2.05 billion against Dole and pesticide makers since 2002. After this ruling, it is unlikely that Dole and Dow will pay any settlements to injured Nicaraguan banana workers.
According to the Los Angeles Times, Dole argued that the 2001 Nicaraguan law is biased against defendants like itself. They say the statute was enacted to litigate injury claims against foreign corporations by banana workers and presumes that DBCP causes sterility and other injuries. Environmentalists and public health advocates argue that decades of EPA data confirms that DBCP exposure is linked to adverse health impacts, and that use of the pesticide continued abroad after it was banned for causing sterility in the U.S.
Until 1977, DBCP was used in the U.S. as a soil fumigant and nematocide on over 40 different crops. From 1977 to 1979, EPA suspended registration for all DBCP-containing products except for use on pineapples in Hawaii. In 1985, EPA issued an intent to cancel all registrations for DBCP, including use on pineapples. Subsequently, the use of existing stocks of DBCP was prohibited. In Nicaragua, DBCP was legal from 1973 until 1993.
EPAâ€™s website states the following:
Acute (short-term) exposure to DBCP in humans results in moderate depression of the central nervous system (CNS) and pulmonary congestion from inhalation, and gastrointestinal distress and pulmonary edema from oral exposure. Chronic (long-term) exposure to DBCP in humans causes male reproductive effects, such as decreased sperm counts. Testicular effects and decreased sperm counts were observed in animals chronically exposed to DBCP by inhalation. Available human data on DBCP and cancer are inadequate. High incidences of tumors of the nasal tract, tongue, adrenal cortex, and lungs of rodents were reported in a National Toxicology Program (NTP) inhalation study. EPA has classified DBCP as a Group B2, probable human carcinogen.
Read the judgment here.