Pesticide-Exposure Case Given Second Chance

     (CN) — The en banc Third Circuit unanimously revived banana plantation workers’ claims that Dole Foods, Chiquita, Dow Chemicals and others knowingly exposed them to a chemical that causes cancer and sterility.
     Hundreds of Latin American banana plantation workers allege that Dole Foods, Chiquita, Dow Chemicals and other multinational giants deliberately exposed them to dibromochloropropane, or DBCP, a pesticide banned in the United States that causes cancer and sterility.
     Litigation in these consolidated cases began more than 20 years ago, but procedural developments led the workers out of Texas courts and into Louisiana.
     Then, on well-founded fears their claims would be dismissed in Louisiana over timeliness, the workers filed suit in Delaware Federal Court.
     In their Delaware complaints, the banana workers claimed the defendants knowingly exposed them to DBCP, a chemical used to kill nematodes in the soil.
     The U.S. Environmental Protection Agency lists DBCP as a probable carcinogen and banned domestic use of the pesticide in 1979, exempting pineapple growers in Hawaii until 1985.
     The banana workers say the defendants did not provide workers with protective covering or equipment while they injected the pesticide into the soil or sprayed it over the fields.
     According to one complaint, the “fumes and vapors released by the chemical remained trapped under the canopy created by the large impermeable banana leaves which cut off almost all ventilation and drifted throughout the banana plantation exposing anyone working in the vicinity.”
     Exposure to DBCP allegedly caused the workers to suffer infertility, cancer, compromised renal systems and defective sperm.
     A federal judge dismissed the Delaware lawsuits with prejudice under the “first-filed rule,” but the full Third Circuit revived the case Friday in an 11-0 decision.
     “As these cases come to us today, there is a serious possibility that no court will ever reach the merits of the plaintiffs’ claims. More than 20 years after this litigation began, we think that outcome is untenable,” Judge Julio Fuentes said, writing for the unanimous court.
     The judges ruled that the Delaware Federal Court should have applied the first-filed rule by staying the workers’ case rather than dismissing it.
     “In the vast majority of cases, a court exercising its discretion under the first-filed rule should stay or transfer a second-filed suit. Even a dismissal without prejudice may create unanticipated problems. A dismissal with prejudice will almost always be an abuse of discretion,” Fuentes said. (Emphasis in original.)
     The Philadelphia-based appeals court said it was skeptical of Dole and Chiquita’s claim that the workers have engaged in impermissible forum shopping by trying to preserve their right to litigate in two different jurisdictions.
     “Whatever else the first-filed rule demands, it does not require litigants to see through a glass darkly in order to predict whether a court will consider their claims timely,” Fuentes said.
     The judge noted that the workers have not gained any advantage by filing in two courts, and are indifferent as to which court hears their claims as long as one court will hear them.
     Further, the doctrine of res judicata, or claim preclusion, does not bar relitigation of similar claims in Delaware given the exceptional circumstances of the case, the Third Circuit ruled.
     “In this case, the plaintiffs had no way to predict that the Louisiana Supreme Court would reject cross-jurisdictional class action tolling, thereby rendering their claims untimely in Louisiana courts,” Fuentes wrote. “While parties should be prevented from ‘burdening courts with claims already litigated,’ we must be ‘mindful of not barring plaintiffs from having their day in court by overzealously preventing them from having two days in court.’ We think a Louisiana court would reach the same conclusion.”

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