Florida Federal Judge refuses to enforce Nicaraguan judgment against Dole Food
The tide is turning in favor of Dole Food in its decades old battle defending its use of the chemical compound dibromochloropropane (DBCP). In an action filed in the U.S. District Court for the Southern District of Florida, Osorio v. Dole Food Company, Judge Paul C. Huck refused
to enforce a $97 million Nicaraguan judgment under the Florida Uniform Out-of-country Foreign Money-Judgments Recognition Act..
Plaintiffs are 150 Nicaraguan citizens alleged to have worked on banana plantations in Nicaragua between 1970 and 1982, during which time they were exposed to the DBCP is an agricultural pesticide that was banned in the United States after it was linked to sterility in factory workers in 1977. Nicaragua banned DBCP in 1993. Defendants are Dole Food Company and The Dow Chemical Company. Dow manufactured DBCP from 1957 until 1977, and Dole used DBCP on its banana farms in Nicaragua until the farms were expropriated by the Sandinista regime that came to power in 1979.
The judgment in this case was rendered by a trial court in Chinandega, Nicaragua. The trial court awarded Plaintiffs approximately $97 million under “Special Law 364,” 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. Defendants have appealed the judgment to an intermediate appellate court in Nicaragua. That appeal is still pending.
Defendants raise several objections to domesticating the judgment. They contend that under the Florida Recognition Act this Court cannot enforce the judgment because (1) the Nicaraguan trial court lacked personal and/or subject matter jurisdiction under Special Law 364, (2) the judgment was rendered under a system which does not provide procedures compatible with due process of law, (3) enforcing the judgment would violate Florida public policy, and (4) the judgment was rendered under a judicial system that lacks impartial tribunals. The Court held that Defendants have clearly established their entitlement to non-recognition on each of these independent grounds.
Lead trial counsel for Dole was Andrea E. Neuman of Gibson, Dunn & Crutcher LLP, Los Angeles, CA,
The first DBCP lawsuits were brought in the mid-1990s, when thousands of plaintiffs from over 23 different countries filed DBCP suits in Texas against various defendants. Those cases were consolidated and the defendants, who included Dole, won dismissal on forum non conveniens grounds after arguing that the plaintiffs' various home countries provided adequate alternative forums.
In response to Delgado, which resulted in plaintiffs filing numerous DBCP claims in Nicaragua, the Nicaraguan National Assembly passed the “Special Law for the Conduct of Lawsuits Filed By Persons Affected By the Use of Pesticides Manufactured with a DBCP Base,” commonly referred to as “Special Law 364.” Since the passage of Special Law 364 in October 2000, over 10,000 plaintiffs have filed approximately 200 DBCP lawsuits in Nicaragua, most of which are still pending. To date, however, Nicaraguan courts have awarded over $2 billion in judgments. including the $97 million judgment that is the subject of this case.
In 2003, more than 450 Nicaraguan plaintiffs attempted to enforce a $489 million judgment in California, but their complaint was dismissed on technical and jurisdictional grounds without reaching the merits of the defendants' substantive objections. In a related action, Shell Oil Company obtained a declaratory judgment that it was not subject to personal jurisdiction in the original Nicaraguan lawsuit, which is a requirement for recognizing a judgment under the Uniform Foreign Money-Judgments Recognition Act.
In addition to the Special Law 364 litigation in Nicaragua, a few Nicaraguan plaintiffs have brought DBCP suits in the United States in recent years. In Tellez v. Dole Food Co., brought by 12 Nicaraguan plaintiffs and tried in 2007 in Los Angeles Superior Court, a jury awarded six plaintiffs over five million dollars and found that the defendants were not liable to the remaining plaintiffs.
Shortly after the verdict in Tellez, Dole alleged to the California trial court that some of the Tellez plaintiffs never worked on a banana farm, perjured themselves during the trial, and presented false documents as evidence. At the time, two other DBCP lawsuits, Mejia v. Dole Food Co. and Rivera v. Dole Food Co., were pending before the same California court, and Dole's fraud allegations implicated the Mejia and Rivera plaintiffs as well. To determine the veracity of Dole's fraud allegations, the court established procedures for gathering and presenting evidence from Nicaragua, and to ensure the safety of Nicaraguan witnesses, entered a protective order that permitted the defendants to take dozens of anonymous “John Doe” depositions to investigate the fraud claims.
After an evidentiary hearing, the California trial court concluded that the DBCP claims before it were the direct result of a widespread conspiracy to commit fraud by attorneys in Nicaragua and the United States, Nicaraguan doctors and judges (including the Nicaraguan trial judge who issued the judgment in this case), and the plaintiffs themselves. As a result, the California court dismissed with prejudice the fraud-tainted claims in Mejia and Rivera. A California appellate court recently remanded Tellez, with instructions that the trial court may vacate the judgment in light of the fraud findings in Mejia and Rivera. The DBCP claims of over 5,000 plaintiffs from various countries in Central America and Africa are currently pending in California Superior Court in Los Angeles.
