Pesticide Case by Hawaii Banana Workers Revived

     (CN) – The Dole fruit and Dow chemical companies must face a lawsuit from migrant farm workers who claim they were harmed by a pesticide, the Hawaii Supreme Court ruled.
     In the case at hand, banana plantation workers from Costa Rica, Ecuador, Guatemala and Panama say they suffered reproductive injuries from exposure to the nematode worm killer dibromochloropropane. A previous ruling denied the plaintiffs class status, so the case involves just six named plaintiffs, led by Gereado Patrickson.
     Dow Chemical and Shell Oil manufactured DBCP originally, but the chemical companies continued to distribute the nematocide to fruit companies in developing nations after the Environmental Protection Agency banned it in 1979.
     While considering whether the case Patrickson and others brought in Hawaii belonged in state or federal court, the Ninth Circuit remarked in 2001 that nematocide is “alleged to cause sterility, testicular atrophy, miscarriages, liver damage, cancer and other ailments you wouldn’t wish on anyone.”
     When the case finally settled in state court, specifically Hawaii’s First Circuit Court, the defendants – among them Dow, Dole, Del Monte, Chiquita and Shell Oil – moved for summary judgment in 2009.
     They contended that the plaintiffs waited too long to sue, since all six plantation workers had been part of a similar case filed in Florida in June 1995 and dismissed a month later.
     For their part, the plaintiffs said they filed that Florida case only to preserve their rights when it seemed an injunction in unrelated DBCP litigation in Texas would bar new lawsuits.
     The trial court sided with the companies, however, saying the plaintiffs should have filed within two years of the 1995 dismissal.
     Hawaii’s Supreme Court reversed Wednesday, however, finding that two-year window had been tolled by putative class actions in Texas that were ongoing.
     Writing for the unanimous court, Justice Sabrina McKenna explained that some states do not use cross-jurisdictional tolling to prevent “forum-shopping and delay,” while other states use it “to promote the effective utilization of judicial resources and the reduction of costs to individual litigants.”
     “We find the reasoning of those states adopting cross-jurisdictional tolling to be more persuasive, as well as our existing precedent,” McKenna added.
     Last month, the Third Circuit agreed to hold an en banc rehearing of a separate DBCP lawsuit against Dole and Dow. More than 200 migrant farm workers filed that lawsuit in 1993, but a divided three-judge panel of the Third Circuit barred it over the summer on jurisdictional grounds.
     Judge Julio Fuentes complained in a dissent to that ruling that the workers deserved their day in court. “They say they have injured kidneys, are infertile and are at heightened risk of cancer,” Fuentes wrote. “Twenty years after first bringing suit, no court has heard the merits of their claims.”
     The Philadelphia-based federal appeals court is scheduled to rehear the case en banc in February 2016, and the August panel opinion has been vacated.

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