Banana Workers Peel Away Barrier to Pesticide Suit

MANHATTAN (CN) –  For 25 years, hundreds of former banana plantation workers from Costa Rica, Ecuador and Panama have sought compensation for their alleged exposure to a chemical pesticide linked to cancer and sterility.

Their effort breached an important barrier on Wednesday, as a U.S. judge rejected Occidental’s claims about the statute of limitations.

Tobias Bermudez Chavez, a Costa Rican citizen who said he became sterile after exposure to the chemical DBCP, is the lead plaintiff in the lawsuit at issue.

Though today’s ruling advances claims against only Occidental, Chavez’s case took aim at more than a dozen corporations, including Chiquita Brands International, Del Monte Fresh Produce, Dole Food, Dow Chemical and Shell Oil.

A Delaware court is weighing similar issues regarding the other defendants.

Outlining the case’s complicated history, U.S. District Judge Paul Engelmayer predicted massive litigation ahead.

“If [the lawsuit] proceeds forward, it will assuredly call heavily upon the resources, money, time, and commitment of all parties,” the 34-page ruling states.

“And on the merits, because this is a long-delayed case spanning two continents, involving complex questions of science and causation, and implicating the activities of multiple manufacturers beyond the defendant in this forum, the court anticipates a protracted discovery process, both as to fact and expert discovery,” Engelmayer added.

The U.S. Environmental Protection Agency banned the use of DBCP in 1979, but Chavez and his fellow plantation workers claim that their bosses recklessly kept spraying the fumigant throughout Latin America.

“The laborers wore no gloves, protective covering, or respiratory equipment to prevent skin absorption or inhalation of DBCP because no defendant ever informed them that they were in danger and because no defendant provided protective clothing or equipment to these workers, some of whom are plaintiffs in this case,” their June 2012 lawsuit stated.

Nearly a decade before this version of the suit was filed, the case began with a 1993 filing in a Texas state court, spawning a legal game of hopscotch through various jurisdictions in the Lone Star State and Hawaii before its dismissal some 17 years later.

Chavez’s 2012 complaint migrated to New York via a pit stop in Delaware after it was initially filed with a federal judge in the Eastern District of Louisiana in 2011.

Engelmayer’s ruling today rejects a motion by Occidental for judgment on   the pleadings, saying New York law tolled the statute of limitations while the claims were pending in another state.

Engelmayer noted that the important question of tolling has divided several courts in the district.

In an interview on the ruling, an attorney for the workers was cautiously optimistic.

“We won an important battle, but we haven’t won the war yet,” said Scott Hendler, with the firm Hendler Lyons Flores.

Such prudence is understandable: Hendler said that he has been on the case throughout its duration for more than a quarter-century.

“It’s an extraordinarily long and winding road to get to a hearing on the merits,” the Austin, Texas-based attorney said.

Hendler attributed the extensive delays to the tactics of Occidental and other co-defendants, a strategy that he said remains ongoing and has left his clients in limbo.

An estimated 20 of the workers Hendler represented originally died of cancer before they could see this minor victory, the attorney added, estimating that he has 285 remaining clients across Latin America.

“A substantial number have died waiting for this,” Hendler said.

“That seems to embody the concept that, ‘Justice delayed is justice denied,’” he added.

Occidental did not respond to telephone and email requests for comment.

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