Nicaragua, January 18, 2003 -- NY Times: Manuel
Guido Montoya never had the children he once hoped would
ease his workload and bring home a few extra dollars.
Years ago, he tried to start a family, he said, but
the woman left him once she realized he was sterile.
Like scores of men and women in this banana-growing
region — and thousands of field workers throughout
Central America, the Caribbean, Africa and the Philippines
— Mr. Guido blames dibromochloropropane, or DBCP,
for his medical problems. The pesticide was banned in
much of the United States in 1977 when it was found
to cause sterility, but continued to be used for years
in the banana plantations that supply American supermarkets.
For two decades, the workers say, their efforts to
win compensation for the damage done by DBCP —
including sterility, cancer, and birth defects in children
— have been frustrated by the legal tactics of
American chemical and fruit companies. But now they
are getting their day in court.
A ruling by a federal judge in New Orleans has opened
the way for a lawsuit brought by 3,000 Central American
banana workers seeking millions in damages, the first
time one of these cases would be tried in the United
States. The United States Supreme Court will hear arguments
Wednesday on whether or not to allow other DBCP lawsuits
to be tried in state courts.
And over the objections of the Bush administration,
which has pressed the Nicaraguan government on behalf
of the corporate defendants, courts here have begun
awarding hundreds of millions of dollars in damages
to banana workers.
The companies facing lawsuits are giants of the chemical
and fruit industries: Shell Oil, Dow Chemical and Occidental
Chemical; Dole Food, Del Monte Fresh Produce and Chiquita
Earlier cases resulted in two major settlements. Starting
in 1997, all of the companies except Dole settled with
26,000 former banana workers in Central America, Africa
and the Philippines for $41 million. After lawyer fees
were deducted, the workers received an average of $1,500
each. A 1992 settlement in Costa Rica netted $20 million
for 1,000 workers.
But tens of thousands of other workers still have suits
pending in courts in Central America, the Philippines
and the United States. "Our fight is over whether
we get to tell our story," said Scott Hendler,
who represents more than 3,000 plaintiffs seeking trials
in Louisiana and Hawaii.
The companies insist, in statements and regulatory
filings, that they have no further responsibility after
settling claims years ago. They say that many of the
thousands of workers who are now suing were never even
exposed to the chemical, and that it has not been proved
to cause the cancers, birth defects or organ damage
now attributed to it.
Shell said that its products were never sold in Nicaragua;
in any event, it added, DBCP was always labeled with
appropriate safety precautions. Dow disputes its liability
and notes that its product had warning labels —
but says the companies that used it did not always communicate
proper warnings to their employees. Dole says that DBCP's
safety was tested by the manufacturers.
The companies have consistently argued that the cases
should be heard in the country where the purported injuries
occurred — a tactic that for years effectively
put the litigation in limbo.
"Courts in foreign countries are not up to the
task of handling these kinds of cases," said Alejandro
Garro, a professor of Latin American law at Columbia
University who has testified on behalf of the banana
workers. "These countries have 19th- century legal
structures and have no system in place to deal with
extremely technical class-action cases involving thousands
But that obstacle has crumbled in Nicaragua. Pressed
by labor unions, the government in 2000 passed a law
for DBCP victims that requires corporate defendants
to put up a bond of $100,000 a case within three months
of being served. In all, the law has led to the filing
of over 400 cases seeking more than $9.6 billion in
damages on behalf of 7,000 plaintiffs.
Last month, after a trial in which the companies refused
to take part, a Managua court ordered Shell, Dole and
Dow to pay $489.4 million to 450 workers. Lawyers for
the plaintiffs say they will try to get American courts
to enforce the judgment.
The companies say they will not pay. Shell issued a
statement arguing that Nicaragua's courts has no jurisdiction
over Shell because its headquarters are in the United
States and it has no employees in Nicaragua. Dow said
that the Nicaraguan law "offends virtually every
notion Americans have of fair play and substantial justice,"
adding that the company will seek to have the Nicaraguan
cases retried in the United States. Dole said that the
court never obtained jurisdiction over it and that the
law violated the Nicaraguan Constitution.
Both Dow and Dole say in their fall 2002 quarterly
reports that they do not expect the DBCP lawsuits to
have a material impact on their financial condition.
Dole did note in a conference call with analysts last
November that it had increased its legal reserves by
more than $10 million because of the lawsuits.
Shell and Occidental developed the pesticide in the
1940's. Tests on rats showed that it caused testicular
atrophy and other damage, but company scientists persuaded
the Department of Agriculture in 1961 that DBCP was
safe for humans, according to company documents obtained
by plaintiffs' lawyers.
But in 1977, the Environmental Protection Agency suspended
use of DBCP in most of the United States after a third
of the workers at Occidental's manufacturing plant in
Lathrop, Calif., were found to be sterile. The E.P.A.
made the ban permanent in 1979, finding that the pesticide
caused sterility in humans and an increased risk of
cancer and genetic damage.
The lawsuits here and in the United States charge that
the chemical companies shipped DBCP abroad and the growers
used it despite knowing about its harmful effects even
before the ban. Some of the lawsuits charge that it
was used as late as 1985.
In Nicaragua, Mr. Guido, 47, and others said they used
DBCP throughout the 1970's without gloves, masks or
protective suits, while the fruit companies told them
nothing about the potential hazards.
"Walking through the plantations, we breathed
in the vapors," Mr. Guido said, recalling times
when he and co-workers were drenched in the chemical.
"I'd get headaches, a bloody nose, stomachaches.
You put up with a lot of pain."
Scores of his neighbors are childless, like him, or
have children born ill or with birth defects —
stigmas in a society where large families are not only
expected but also necessary for economic survival.
Lawyers in the Louisiana case have screened dozens
of Costa Rican banana workers in preparation for trial.
For several days in November a procession of middle-aged
men shuffled through the community center in Guápiles,
a commercial hub nestled among plantations and national
parks, where they provided detailed medical and work
Like Mr. Guido and his neighbors in Nicaragua, Costa
Rican workers said in interviews that they were never
told that DBCP was harmful, adding that any warning
labels on the chemical drums were useless, since they
do not read English.
Dow supplied the pesticide to Standard Fruit, Dole's
predecessor in the Costa Rican banana fields, after
it was initially banned by the E.P.A., but insisted
on being indemnified against damages, according to Scot
Wheeler, a Dow spokesman. The agreement between the
companies listed numerous safety and health precautions.
In interviews and court filings, lawyers for the Costa
Rican workers said that the fruit company ignored some
of the safety requirements or provided inadequate protective
gear. At the time, they added, local authorities did
not have the ability to assess potential dangers from
pesticides and were reluctant to challenge the growers,
who were — and remain — a powerful economic
force providing thousands of much-needed jobs.
After years of demanding that all the DBCP lawsuits
be heard in the Third World, the companies may be coming
to regret their wish. They are attacking Nicaragua's
DBCP victim's law on every front.
Dole, Dow and Shell have hired former Clinton and Reagan
administration officials to enlist the Bush administration's
aid in pressing Nicaragua to repeal the law. Similar
laws in Ecuador and Guatemala, they noted, were recently
The administration, agreeing that the Nicaraguan law
unfairly aims at a few companies decades after the fact,
has taken up the cause. Secretary of State Colin L.
Powell is said to have raised the issue with Nicaragua's
foreign minister, although a department spokesman would
say only that the United States has raised the issue
"at the highest levels."
Oliver Garza, who was the United States ambassador
in Managua until September, conveyed his reservations
to the Nicaraguan foreign ministry last March, the State
Department said. Otto Reich, the State Department official
who was in charge of Western Hemisphere affairs, also
raised the issue during a visit to Nicaragua in September,
according to diplomats from both countries.
"The State Department said, `You have some large
American companies that have an interest in this; it
is in your interest to find a solution,' " said
Carlos Ulvert, the Nicaraguan ambassador to the United
Although Nicaragua says it wants to support the workers,
thousands of them marched five days from Chinandega
to Managua in November to press the government to make
good on its promise by providing financial or medical
Nicaraguan officials expect more American pressure
to repeal the law during the current Central American
free trade talks. Dow, Shell and Dole have repeatedly
told senior Nicaraguan officials that the law hurts
the foreign investment climate in the country, among
the most impoverished in the hemisphere.
The companies "implied that they would do everything
short of declaring war," a senior Nicaraguan official
said. "These companies come with a lot of stick
and very little carrot. I am perfectly aware of the
two-by-four they hold over our heads."
Ambassador Ulvert said his government favored an out-of-court
settlement of the DBCP suits, but that any compromise
needed to provide fair compensation to the workers.
Dole, Shell and Dow declined to comment further on the
talks, although Dole filings with the Securities and
Exchange Commission say the company is discussing a
settlement with 2,000 Honduran workers.
Even today, the best-paid Central American banana workers
earn about $7,000 a year, with many earning half that.
Many of those who claim they were injured by DBCP still
work on other farms or get by doing odd jobs.
But money is not their foremost concern. Mario Zumbado,
a Costa Rican who worked in Dole's Rio Frio fields in
the 1970's and who may be a witness in the Louisiana
case, said his life had been ruined by his years in
the fields. He barely remembers the $20,000 he was awarded
in the 1992 decision. Each of his five wives left him,
he said, when they realized his sterility was irreversible.
"My destiny is up to God," said Mr. Zumbado,
who is 53 and now works as a barber. "It may be
to be continued, to be abandoned. That is the life you
have when you are alone, with no children. Staying that
way is not easy, without soul, life or heart."