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Los Angeles Times: Pesticide trial begins against Dole, Dow: product… made Nicaraguan workers sterile, lawyer says.

EXTRACT:It soon grew to be one of the biggest sellers for Dow and Shell Oil Co., the two major producers of the chemical. An Occidental Petroleum Corp. subsidiary mixed DBCP with other ingredients at its factory in Lathrop, Calif.


The food company used a product by the chemical maker that made Nicaraguan workers sterile, lawyer says. The firms deny it.

By T. Christian Miller, Times Staff Writer
July 20, 2007

Nearly three decades of legal struggle came to a head in a Los Angeles courtroom Thursday, as a trial began in a case pitting impoverished Latino field hands against two of America’s largest corporations.

Dole Food Co. knowingly exposed Nicaraguan banana workers three decades ago to a pesticide made by Dow Chemical Co. that caused permanent sterility, an attorney for the men said in opening arguments in Los Angeles County Superior Court.

“The workers were not told that [the pesticide] may affect their fertility,” Duane Miller, a Sacramento attorney, told jurors. “They weren’t told until the ’90s — and they weren’t told by Dow or Dole.”

Attorneys for Dow, which is based in Midland, Mich., and Dole, which is based in Westlake Village, argued that the companies used the chemical responsibly and that the workers had not been exposed to enough to cause harm.

“We’re talking about no dangerous exposure to the plaintiffs,” said Rick McKnight, the lead attorney for Dole. He waved a silver tablespoon in the air to represent the amount of the chemical applied per banana tree. The pesticide “certainly wasn’t the cause of their sterility.”

The case marks the first time that an American company has gone before a jury to face accusations that the pesticide, called DBCP, poisoned field hands in banana plantations in another country.

Since the 1980s, attorneys have filed civil lawsuits on behalf of more than 30,000 workers on plantations in Africa, Latin America and the Philippines.

Although some of those lawsuits have settled, none has been presented to jurors. Twelve workers have alleged sterilization in Thursday’s case, though thousands of additional workers in Nicaragua are preparing to sue.

The case is also one of the few in which an American company has been sued in the U.S. for alleged damages occurring overseas. Typically, such lawsuits are referred back to their country of origin.

Coincidentally, one other case involving alleged damages committed abroad is now on trial. In that case, in federal court, an Alabama coal company is alleged to have worked with paramilitaries in Colombia to kill union officials. Company officials have denied the charge.

The cases have attracted the attention of legal scholars and plaintiff’s attorneys, who have struggled to determine an equitable system of justice in a world where commerce is global, but courts are local.

“This is the tip of the iceberg,” said Walter Lack, a Los Angeles attorney who represents another group of workers allegedly sterilized by the chemical. “This is the beginning.”

The pesticide cases’ serpentine history leads from a chemical vat in a dusty Central California town to the leafy jade green banana plantations along Nicaragua’s western coast.

At every step, the case has been marked by intrigue. Attorneys have been accused of fraud, and Nicaraguan workers have held hunger strikes. In addition, top Dole officials have met with Nicaraguan President Daniel Ortega to offer the possibility of jobs if the country made changes to its legal system that would make it more difficult to sue.

When introduced in the 1950s, DBCP, or dibromochloropropane, was considered a wonder chemical, able to destroy microscopic worms in the soil, which had wasted the crops of farmers for hundreds of years.

It soon grew to be one of the biggest sellers for Dow and Shell Oil Co., the two major producers of the chemical. An Occidental Petroleum Corp. subsidiary mixed DBCP with other ingredients at its factory in Lathrop, Calif.

Then in 1977, about three dozen workers at the plant were proven to be sterile in medical tests. Six sued, winning a $4.9-million judgment against Dow.

The attorney in that case was Miller. Returning to the same arguments 30 years later, he told jurors he would show that Dow and Dole knew the pesticide damaged lab animals’ testes as far back as the 1950s yet continued selling and using the product at its overseas plantations.

In Nicaragua, he said, Dole sprayed the chemical through the air, exposing laborers who lived near and worked in the fields, and did not provide proper protective equipment.

Miller methodically placed copies of old internal memos onto an overhead projector to show that the companies were aware of the dangers. In one memo, a Dole official said it was “well-nigh impossible” to implement some safety measures at the plantations.

Miller declined to state how much money his clients were seeking in damages.

“My clients went into the fields in clothing that you might wear in the streets — jeans, a cotton shirt and ordinary shoes,” Miller told the jury of seven men and five women.

Dow’s lead attorney, Gus Filice, told the jurors that the company had diligently investigated the chemical’s dangers and warned Dole about the precautions needed when using it.

He said tests taken by the company showed that the amount of DBCP in the air was far below the level that would cause damage.

“Dow Chemical Co. acted in a responsible manner at each and every step,” said Filice, who is based in Oakland. “They acted precisely the way we would want a large chemical company to act.”

The trial is expected to take two and a half months.

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