After fighting lawsuits for decades over its use of a dangerous pesticide in the 1970s, Dole Food Co. is attempting a breakthrough move to settle outstanding claims by its former workers.
Lawyers for the Westlake Village produce giant have filed a request in Los Angeles Superior Court asking that nearly 1,500 Honduran farm workers who are suing Dole be allowed to drop out of those suits and settle their claims out of court under an existing program arranged by the company and Honduran government officials.
The benefit for Dole is that it could quickly end possibly years of litigation from thousands of former workers in an inexpensive way. What’s more, the program could serve as a model to help the company settle with plaintiffs from other countries. The workers meanwhile could get some money quickly instead of waiting years for an uncertain outcome, according to Dole.
However, some allege the plan is merely a way for the company to skate out of its responsibilities, and have vowed to fight the plan.
The former plantation workers, along with thousands of others in nearby Central American countries, claim they were made sterile by Dole’s use of dibromochloropropane, or DBCP, which has been linked to sterility and has since been banned.
“If this is a settlement structure that works for the workers, then our view is they should be able to avail themselves of it and extract themselves from the U.S. court system,” said Andrea Neuman, an attorney with downtown L.A.-based Gibson Dunn & Crutcher LLP who is representing Dole.
In 2006, the company developed a settlement plan known as the Honduran Worker Program, with approval from Honduran officials, which would pay workers between roughly $1,500 and $5,800 each if they can prove they worked on a Dole plantation and have become sterile. In exchange, the workers agree not to sue the company.
However, if the workers are suing Dole, they can’t participate in the program. The company said it has turned away 197 such individuals who voluntarily applied for settlements, according to a May 17 Los Angeles Superior Court filing.
Dole is now asking the court for permission to accept workers into the program even if they are suing Dole. As a result the workers would surrender their right to sue. The petition specifically seeks approval to add any of the 1,465 plaintiffs represented by the law firm Engstrom Lipscomb & Lack in Century City; Provost Umphrey Law Firm in Beaumont, Texas; and the Offices of Benton Musslewhite in Houston.
However, at least one of the plaintiffs’ attorneys is suspicious of Dole’s efforts, contending the program is an attempt to exploit uneducated men and cheat them out of potentially hundreds of thousands of dollars in trial damages.
“It’s just a deal to get Dole off the hook,” said attorney Benton Musslewhite, who plans to argue that the pesticide lawsuits should proceed and the program not be expanded.
“It’s not really fair and right for (the workers) to get so little money if they really do have sterility or other medical problems caused by DBCP,” he said.
Engstrom Lipscomb & Lack did not return calls for comment. Provost Umphrey declined comment.
Legal battles
Dole has been fighting pesticide-related lawsuits since the 1980s.
The saga began in the late 1970s, when the U.S. Environmental Protection Agency banned the use of DBCP on all fruit except pineapples after studies demonstrated a link between the pesticide and male sterility. DBCP use on pineapples was banned in 1985.
Dole continued using the substance at least in Nicaragua until 1980, and it has been hit with lawsuits from tens of thousands of former workers from that country as well as Honduras, Costa Rica, Ecuador, Panama, Guatemala, the Ivory Coast and Hawaii.
Dole has never admitted that its DBCP use may have led to the workers’ sterility, but it has attempted to settle the suits when possible as a more cost-effective solution.
While the company has settled many cases, including a $21 million agreement with workers in 1992, it has also lost cases in the United States and abroad. In Nicaragua alone, plaintiffs have won damages totaling more than $2 billion against Dole thanks to a worker-friendly Nicaraguan law, though the company is disputing those rulings.
Dole also is working to overturn a $3.3 million Los Angeles Superior Court judgment – later reduced to $2.3 million – for six plaintiffs in 2007. Dole alleges that the plaintiffs’ lawyer in that case, L.A. attorney Juan Dominguez, had worked with lawyers in Nicaragua to encourage plaintiffs to lie about being sterile and working for Dole in the 1970s.
Two other cases involving Dominguez already have been dismissed. Last year, Los Angeles Superior Court Judge Victoria Chaney said Dominguez participated in a “blatant extortion” of Dole by coaching plaintiffs to lie about their involvement with the company’s banana plantations in those two cases
Now, Chaney is presiding over a rehearing of the 2007 case in which Dole is alleging the same kind of fraud. Opening arguments started May 10.
Dominguez is under investigation by the California State Bar and the U.S. Department of Justice.
Settlement model
Dole hopes the Honduran settlement model can be replicated to settle claims in other countries where it used the pesticide. The company is facing a total of 2,300 claims from foreign workers in state court. It is unclear how many claims Dole is facing worldwide but the number runs well into the thousands.
To participate in the Honduran program, an individual must first prove that he was a banana plantation worker during the time when DBCP was in use and has not previously settled claims with Dole.
The company pays the claimant $100 in exchange for his signature on a release of all claims against the fruit company. Then the worker must definitively prove that he was exposed to DBCP during his employment and submit to “a thorough medical questionnaire and physical exam,” according to Dole’s court filing. Depending on the level of sterility, the worker will receive a payment of as much as 110,000 Honduran lempiras, or roughly $5,800.
But the workers’ attorneys argue that only a handful of applicants have walked away with any kind of settlement.
According to Dole’s records included in the filing, the company interviewed more than 1,000 applicants for the program, of which just 58 had been paid as of March 2009, the most recent date for which data was available.
The workers’ attorneys said the program severely disadvantages men who are suffering significant medical problems. The workers, most of whom have little formal education, have to go without legal representation, submit to invasive medical tests and prove 30-year-old facts to a multinational corporation armed with high-paid lawyers, doctors and other representatives.
What’s more, even if the workers receive the full settlement amount, it would be just a small fraction of what they could have won in court, the attorneys contend.
“(Dole is) giving very little to anyone,” Musslewhite said. “It would be a terrible mistake for that program to go forward.”
