3rd Cir. Takes 2nd Look |at Toxic-Exposure Case

     PHILADELPHIA (CN) – An en banc Third Circuit on Wednesday betrayed few inclinations of whether it will reverse a ruling that barred farm workers from continuing their suit against Dole and other agribusinesses in a chemical-exposure case that stretches back to the early 1990s.
     A Third Circuit panel ruled this past August that because the workers’ claim in a Louisiana federal court had been dismissed, a district judge in Delaware properly refused to hear the case in his court to prevent the plaintiffs from forum shopping.
     That 2-1 ruling drew a scornful dissent from Circuit Judge Julio Fuentes, who, noting the workers’ claims of chronic illness and infertility after exposure to the pesticide dibromochloropropane or DBCP, wrote, “Twenty years after first bringing suit, no court has heard the merits of their claims.”
     At Wednesday’s en banc rehearing, the workers’ attorney Jonathan Massey said, “All the plaintiffs were trying to do by filing in Delaware was preserve in some form the ability to hear their claims.”
     Massey noted that the court has in the past allowed cases to continue despite their previous filings in other jurisdictions when doing otherwise would exert a “draconian effect.”
     Lacking the contentiousness typical of its hearings, the Third Circuit panel mostly listened to arguments in the labyrinthine case, which is tangled in procedure. The case’s confusion stems in large part from the jurisdiction net that the defendants – including Dole, Del Monte, Chiquita Banana, and chemical companies like Shell Oil – cast given their activities throughout the nation.
     The Louisiana district court ruled that too much time had passed between the alleged injuries and the suit to make the statute of limitations window. The Delaware court decided that the Louisiana ruling as time-bared meant the case could not be heard in Delaware.
     Andrea Neuman, counsel for all defendants except Chiquita Banana, argued that the case presented was a clear instance of a first-filed rule, allowing the Delaware court to hear the case only at its discretion.
     Last year, the Hawaii Supreme Court ruled that workers in a separate but related action could sue the companies for using the pesticides banned by the Environmental Protection Agency in 1979.

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