By John Donovan
Shell Oil Company is one of the defendant’s, along with Dole Food Company, Dow Chemical Company and others, in a current lawsuit in the U. S. District Court, Eastern District of Louisiana (New Orleans).
The Plaintiffs – plantation workers from Ecuador, Panama, and Costa Rica – allege that their health, welfare, and lives have been damaged from exposure to an extremely hazardous chemical pesticide, dibromochloropropane (“DBCP”) manufactured and sold under various trade names, including Nemagon.
It is further alleged that:
- Shell and Dow continued to sell a DBCP product although already aware “testicular atrophy may result from prolonged, repeated exposure”
- A Shell official instructed that speculation about possible harmful conditions to man should be omitted from registration of the product with the United States Department of Agriculture.
- After the U.S. authorities banned the manufacture of DBCP the Defendants exported existing stocks of DBCP for use on plantations overseas.
The next hearing – a status conference – is scheduled 29 February 2012 before Judge Lemelle.
CASE No: 2:11-cv-01305-CJB-SS.
The following extracts are taken from the Plaintiffs’ Original Complaint filed on 1 June 2011.
1. Plaintiffs are citizens of Ecuador, Panama and Costa Rica. The Plaintiffs have had their health, welfare, and lives damaged from exposure to an extremely hazardous chemical pesticide, dibromochloropropane (“DBCP”), manufactured, distributed or used by the Defendants on the farms where the Plaintiffs worked in commercial banana cultivation.
2. This lawsuit is brought by Plaintiffs to recover compensation for damages to their health, welfare, and lives that resulted from the injuries caused by the Defendants and for the costs of medical monitoring for DBCP related conditions including sterility or abnormally low sperm counts, cornea damage, cancer, chronic skin disorders, compromised renal systems and damage to their pulmonary and respiratory function.
15. Defendant Shell Oil Company is a Delaware corporation with its principal place of business in Texas, which, at all times pertinent herein, was authorized to do and was doing business within the jurisdiction of this Honorable Court.
21.Defendants The Dow Chemical Company, Occidental Chemical Corporation, AMVAC Chemical Corporation, Shell Oil Company, Standard Fruit Company, Standard Fruit and Steamship Company, Dole Food Company, Inc, Dole Fresh Fruit Company, Chiquita Brands, Inc., Chiquita Brands International, Inc., Maritrop Trading Company and Del Monte Fresh Produce, N.A., manufactured, sold, distributed, and/or used nematocides containing the chemical dibromochloropropane, commonly known as DBCP, and sold under the trade names Fumazone, Nemagon, Oxy 12 and simply DBCP in places where the Plaintiffs lived and worked resulting in Plaintiffs’ exposure to DBCP.
22. Plaintiffs, on information and belief, allege that AMVAC Chemical Corporation, Shell Oil Company, The Dow Chemical Company, and Occidental Chemical Corporation (“the Manufacturer Defendants”) performed many of the tortious acts described below through their predecessors and/or alter ego/agent corporations in New Orleans that had a direct and deleterious impact on the Plaintiffs’ health and well being in and around the banana plantations where they lived and worked.
32. Environmentally, DBCP is regarded as a highly persistent and mobile pesticide. DBCP decomposes slowly in soil, and studies show that DBCP remains in soils for years and is able to migrate through certain soils. DBCP is chemically stable in water, even in very small amounts, and persists in water for years and DBCP has also been reported as a low-level air contaminant. DBCP has been widely found as a contaminant in ground and surface water in California, Hawaii, and elsewhere in the United States and abroad. In California and Hawaii, municipalities have recovered significant sums from The Dow Chemical Company, Shell Oil Company, Occidental Chemical Corporation and AMVAC for costs related to the clean-up of DBCP-contaminated water supplies.
33. The use of DBCP as a nematocide was first suggested by researchers at the Pineapple Research Institute, the research arm of the Pineapple Growers Association of Hawaii. The Pineapple Research Institute (PRI) and the Pineapple Growers Association (PGAH) were a joint venture principally of Dole and Del Monte, along with a small number of other Hawaiian pineapple growers, and both Dole and Del Monte were in control of and had access to the Institute’s research on DBCP from the outset of the product’s development. This research led to the first patented use of DBCP as a nematocide. The Institute later assigned the patent to both Dow and Shell for further development but retained a royalty interest in the patent.
34. What little pre-market toxicology research that was done on DBCP was conducted in or around 1958 by Dow’s company doctor, Dr. Ted Torkelson, and by Shell’s consultant, Dr. Charles Hine of the University of California Medical School in San Francisco. In testing DBCP on rats, both labs found that DBCP caused retarded growth, organ damage, shrunken testes, and sterility.
35. In an April 1958 “confidential report,” Dr. Hine at Shell wrote that “among the rats that died, the gross lesions were especially prominent in lungs, kidneys, and testes. Testes were usually extremely atrophied.” Dow’s first in-house report came three months later, in July 1958, and concluded that DBCP was “readily absorbed through the skin and high in toxicity in inhalation.” Dow’s data also showed that “liver, lung and kidney effects might be expected” and that “testicular atrophy may result from prolonged, repeated exposure.” This information, of course, should have stopped the marketing of DBCP before it was ever sold. Decades later, when American factory workers producing DBCP were found to be sterile and doctors in Costa Rica began to diagnose sterility in hundreds of banana plantation workers, health officials would question why Dow and Shell continued to sell a product knowing that “testicular atrophy may result from prolonged, repeated exposure.”
36. In 1961, a joint Dow-Shell report on the hazardous effects of DBCP was published in Toxicology and Applied Pharmacology. Although this data was published in an academic journal, the information contained in the report never appeared in technical data sheets (the forerunners to today’s material safety data sheets, or MSDSs). Moreover, the PGAH distributed this information to its members, including Dole and Del Monte, in 1961.
37. In May 1961, Dr. Hine, who was now working jointly for Dow and Shell, drafted a report in support of USDA registration of DBCP. Dr. Hine’s draft report called for work place concentrations of DBCP to be kept under one part per million (“ppm”) and recommended the use of impermeable protective clothing if skin contact with DBCP was likely. Louis Lykken, who was in charge of government registration of chemicals for Shell, dismissed the suggestion as “impractical.” Hine concluded the animal studies and then made the observation that repeated exposure could affect human reproduction, which was contained in the draft report to the USDA. Lykken made Shell’s interests clear: “Leave out speculation about possible harmful conditions to man. This is not a treatise on safe use.”
38. In 1961, responding to Shell’s proposed labels for DBCP, a USDA official wrote: “in view of the testicular atrophy demonstrated to occur in experimental animals, we would like to have information regarding health records of those individuals who have been employed for an extended period in the manufacture or formulation of products containing DBCP.” A flurry of memos ensued. The following are excerpts from Shell’s internal memoranda:
August 21, 1961: “We have discussed with Dr. Zavon USDA’s precautionary labeling and the hazards associated with this pesticide chemical. He shares our opinion that USDA is being over cautious in their views on labeling products containing this pesticide chemical. It is the consensus that Dr. Zavon and a representative of Dow’s toxicology group should meet with the USDA toxicology section representatives to settle this issue.”
August 29, 1961: “We have just received and reviewed the subject technical bulletin [and information brochure on Nemagon (Shell's flagship product)] and have some reservations with regard to the adequacy of the statements under safety precautions. In light of the fact that the threshold of odor detection has been reported at one point at seven parts per million and the lowest level studied [five parts per million] has demonstrated damage after repeated exposures, it appears the statement “there is a good margin of safety in handling” would be difficult to justify and might be prosecuted as negligent.”
November 9, 1961: “The pesticides regulations branch of the U. S. Department of Agriculture has expressed concern over the hazards associated with the use of Nemagon soil fumigant and proposed stringent labeling for the various formulations now being marketed. It is the consensus in the division office that the USDA is being overly cautious and the precautionary statements proposed could have an adverse affect on the sale of this product. This matter has been discussed with the USDA representatives and they are willing to relax their labeling requirements if we can provide them with a history of safe use experience in the field and in the manufacturing plant.”
39. Dow was similarly cavalier when it considered the effects that warning about DBCP’s dangers would have on sales of DBCP.
(First sentence only)
45. By 1976, DBCP had been identified as a suspected carcinogen by the EPA, even though Dow, Shell, Del Monte and Dole learned of the chemical’s health risks at least 15 years earlier. In July 1977, thirty-five of one hundred fourteen workers who manufactured DBCP at Occidental’s Lathrop, California plant were found to be sterile. One month later, the EPA suspended DBCP from all but a few highly controlled uses in Hawaii. Even in Hawaii, use was permitted only under heavily restricted conditions with extensive protective equipment. Finally, in 1979, the EPA canceled the registration for DBCP for all uses in the United States. Unfortunately, the large-scale use of DBCP on agricultural operations in the United States had already led to extensive groundwater contamination in Hawaii, California, and elsewhere and large stocks on hand.
46. The U.S. ban on manufacturing of DBCP, however, did not prevent the Defendants from exporting existing stocks of DBCP for use on plantations overseas. When Dow informed Standard that it planned to halt sales and wait for EPA test results, Standard responded by threatening to sue Dow: “Your halt of shipping our outstanding orders is viewed as a breach of contract.” Dow quickly relented after Standard agreed to indemnify Dow against claims for injuries resulting from DBCP use, compelling evidence that Dow expected such injuries to occur.
49. The Plaintiffs were diagnosed with sterility related to DBCP exposure. Defendants fraudulently concealed Plaintiffs’ injuries, the causes of Plaintiffs’ injuries, and the Plaintiffs’ legal right to compensation.
56. Plaintiffs further allege that the named Defendants and/or their predecessors in interest knowingly agreed, contrived, combined, confederated and conspired among themselves and with others to cause the Plaintiffs’ injuries, illnesses, and diseases by exposing the Plaintiffs to harmful and dangerous DBCP-containing products and to deprive the Plaintiffs of the opportunity of informed free choice as to whether to use the DBCP- containing products and to expose themselves to the dangers. Defendants committed the above-described wrongs by willfully misrepresenting and suppressing the truth as to the risks and dangers associated with the use of and exposure to Defendants’ DBCP-containing products. Each of the Defendants aided and abetted one or more of the other Defendants in committing the tortious acts that caused the Plaintiffs’ injuries.
77. Defendants demonstrated and are liable for a wanton and reckless disregard for public safety in the handling, storage and/or transportation of DBCP by continuing to sell, distribute and use DBCP after 1984. Such wanton and reckless conduct contributed to Plaintiffs’ exposure to DBCP through continued contamination of air the Plaintiffs breathed, water the Plaintiffs consumed and bathed in and soil in which the Plaintiffs worked.
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