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Monday, Oct 3, 2022

The Big Slip-Up

A new documentary called “Bananas!” follows a crusading lawyer as he represents Nicaraguan banana plantation workers who say they were made sterile by a pesticide that Dole Food Co. Inc. used on its farms.

But there’s one problem with the movie, which is to make its world premiere this month at the Los Angeles Film Festival: A judge found that the supposedly heroic lawyer actually took part in a massive fraud against Dole, the Westlake Village food giant. The judge said the supposed victims weren’t sterile and had never even worked on Dole’s banana farms.

Los Angeles Superior Court Judge Victoria Chaney ruled in late April that the attorney who serves as the centerpiece of the documentary, Los Angeles sole practitioner Juan Dominguez, was involved in a “blatant extortion” of Dole.

“We wrote the filmmaker and said, ‘You may not have known this when making the documentary, and we understand,'” said Scott Edelman, a partner at downtown L.A. firm Gibson Dunn & Crutcher LLP who represented Dole in the case. “But you really need to rewrite your movie to reflect the facts.”

The “Bananas!” documentary by Swedish filmmaker Fredrik Gertten is to be shown for the first time June 20 in Westwood.

Gertten, who was traveling, initially said he would answer questions via e-mail. But when he saw the questions, he declined to answer them.

A Web site that promotes the film acknowledges that the judge ruled that Dominguez committed fraud in the case. The site describes the film as a “suspenseful, layer-peeling, non-fiction chronicle on the global politics of food and first vs. third world dynamics.” The site states that Dominguez is “making history with his cases.”

Dominguez is best known in Los Angeles as a personal injury lawyer whose “Accidentes” ads adorn the back of the city’s commuter buses.

In the film, Gertten follows Dominguez to Nicaragua. According to the film’s trailer and Web site, the documentary depicts how the attorney signs up more than 10,000 Nicaraguan men who were allegedly harmed by exposure to the pesticide.

After the footage was shot, the judge ruled in favor of Dole’s argument that some of the men he signed up had never worked on farms and weren’t sterile.

In a statement to the Business Journal, Dominguez denied any wrongdoing but wouldn’t comment further, citing a gag order. Dole attorneys said there was no such order.

A hearing is scheduled for June 17, when Chaney will decide whether Dominguez’s alleged involvement in the fraud calls for monetary sanctions. She also said she would refer the lawyer to the State Bar of California for disciplinary action, and to federal prosecutors for investigation.

Edward Lear, a Century City attorney who is not involved in the case but has experience representing attorneys accused of wrongdoing, said the process will take some time. It can take up to two years for the State Bar to complete an investigation of an attorney, Lear said, and could result in anything from Dominguez being exonerated all the way up to his disbarment.

Pesticide problems

Dole has been battling litigation over its use of the pesticide DBCP since the 1980s, when plaintiff lawyers began filing claims in U.S. courts alleging that exposure to the toxic chemical caused sterility in banana plantation workers. The U.S. Environmental Protection Agency banned use of the pesticide, except on pineapples, in 1977, and then banned its use on that fruit in 1985.

Juries in Nicaragua have returned multimillion-dollar verdicts against Dole and other companies, but the company has fought their collection in U.S. courts.

Dominguez, alongside other American plaintiff lawyers who served as co-counsels in the cases, is the first attorney to try the pesticide cases in the United States.

He began his personal injury career in 1987 and his bus advertisements have made him a recognizable figure in Los Angeles. The Cuban-born, Spanish-speaking lawyer filed his first lawsuit against Dole in Los Angeles Superior Court in 2004. He later filed two other suits. Chaney has presided over all three cases.

The first suit alleged that Dole knowingly used the DBCP pesticide after it was banned by the EPA and that Nicaraguan banana plantation workers were made sterile as a result. The suit started with 25 plaintiffs, but 13 were dismissed because there were inconsistencies in their stories.

The case was the first to go before a U.S. jury, and is featured in Gertten’s documentary.

A Los Angeles jury awarded six of the 12 workers $3.3 million in damages in November 2007, and found that Dole concealed the danger of the pesticide from its workers.

The jury later added $2.5 million in punitive damages against Dole, which Chaney dismissed after ruling that U.S. corporations cannot be punished for injuries that occur in a foreign country. Chaney also reduced the $3.3 million in damages to $2.3 million, with Dole paying $1.58 million of the reduced award.

Chaney opted to try the other two cases filed by Dominguez on behalf of 11 Nicaraguan banana workers who also made claims of sterility.

At that point, early last year, Dole had brought on Edelman and two other Gibson Dunn partners, Andrea Neuman and Theodore Boutrous. Boutrous is a high-profile appellate and media lawyer.

After compiling evidence from witnesses and investigators, the Dole attorneys raised concerns in September that Dominguez and a lawyer who worked at his Nicaraguan law firm appeared to be recruiting thousands of men who had never worked on banana plantations, teaching them details of being a banana worker, and falsifying lab reports to show the men were sterile.

“It’s pretty astounding,” Edelman said. “Lawyers were training plaintiffs how to lie, giving them instruction manuals so that they could memorize facts, and obtaining phony labs reports of their sterility.”

Before the next two cases went to trial, Chaney held a three-day hearing in which she viewed Dole’s evidence. After that, she ruled that the stories told by all the plaintiffs in Nicaragua were fraudulent, including the story told in the first trial, which she refers to as the Tellez matter.

“Based on what I have seen here, had I known anything about that then, I would have taken different actions,” Chaney said in the ruling she issued in late April. “And, that the fraud that I have seen here has also contaminated each and every one of the plaintiffs in the Tellez matter.”

Dole had already appealed the Tellez case. In late May, the company asked a state court of appeal to send the case back to Chaney in light of the fraudulent activity.

“Judge Chaney indicated in her order that she now believes that the Tellez case is totally fraudulent,” said Dole attorney Edelman.

More battles

However, Chaney’s ruling said the fraudulent activity only applies to Nicaraguan plaintiffs.

That means Dole still has to battle other cases currently pending in Los Angeles Superior Court. Those cases have been brought on behalf of more than 3,600 plaintiffs, including 1,465 from Honduras, 1,533 from Costa Rica, and 661 from the Ivory Coast in West Africa.

However, Edelman said Chaney’s ruling will be helpful in Dole’s defense of those cases.

“The fact that the lawyers in Nicaragua had to do what they needed to do to come up with fake evidence, fake plaintiffs, fake work certificates, and fake lab reports to show that they were sterile does have application in other countries,” Edelman said. “It shows the length to which it’s necessary to go to try to develop these claims.”

However, plaintiff lawyers aren’t likely to be deterred from bringing DBCP pesticide lawsuits against Dole in the future.

Scott Hendler, a Texas plaintiff lawyer who has been involved in pesticide suits against Dole since the 1980s, said there are thousands of men who have been harmed by the toxic chemical in many countries and he says their grievances are legitimate. Hendler is in Hawaii this week for a hearing in a lawsuit he brought against Dole by banana plantation workers there.

“Nicaragua is an anomaly,” Hendler said. “It’s the result of an attempted fraud by a small group of Nicaraguan con men that tried to exploit a legitimate situation that is many hundreds and perhaps thousands of workers who were wrongfully exposed to a very dangerous chemical that the defendants knew would cause serious injuries.”

Representatives for the Los Angeles Film Festival did not return calls seeking comment. Edelman said a lawyer representing the festival asked Chaney to approve a statement on her findings of fraud that would be read before the screening.

The story of Dole, Dominguez and the documentary doesn’t stop here.

One filmmaker suggests that Gertten could add a postscript to “Bananas!”

“He is in a tough spot because he’s been fooled, too,” said Fernanda Rossi, a New York-based filmmaker and documentary consultant who has been involved in more than 300 films. “The filmmaker can expand the story and say, ‘Even though we have been fooled, we can make a story about this new development.’ This is phenomenal story material.”

Dole’s attorney suggests that the company expects more extensive revisions.

“I think he is obligated to rewrite his movie,” Edelman said. “From the trailer, it’s completely inaccurate and defamatory. It paints Dominguez as a hero fighting for the impoverished against a big bad corporation, and in fact he was exploiting them.”


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