Metropolitan News-Enterprise


Thursday, December 30, 2010


Page 1


Court Upholds Dismissal of Foreign Banana Workers’ Suit

Panel Says Michigan, Home of Dow Chemical, Is Suitable Forum


By STEVEN M. ELLIS, Staff Writer


This district’s Court of Appeal yesterday upheld the dismissal of a lawsuit by several thousand banana workers from Guatemala and Panama who sued Dow Chemical Company, Chiquita and Del Monte over the effects of chemical pesticide.

Div. Two, in an unpublished opinion, said Los Angeles Superior Court Judge Ann I. Jones did not err in dismissing the case on grounds of forum non conveniens and in finding that Michigan, where Dow is headquartered, was a suitable alternative forum.

The plaintiffs brought suit in 2005 alleging that they suffered “sterility and other serious injuries” after being exposed to a pesticide called Dibromochlorpropane, sold under the brand names Nemagon and Fumazone. The substance, which Dow manufactured, has been banned in the United States since 1979, but the plaintiffs claimed Chiquita and Del Monte—and Dole, which is no longer part of the litigation—continued to use it in Panama despite its harmful qualities.

Dow previously sought to remove the suit from state to federal court under the federal Class Action Fairness Act, but the Ninth U.S. Circuit Court of Appeals in 2006 affirmed a district judge’s ruling that the company failed to meet its burden of showing the case was a “mass action” involving more than 100 plaintiffs.

Following remand to state court, the defendants argued Michigan was a more convenient forum. They stipulated to submit to jurisdiction there and appoint an agent for service, to allow discovery from the California litigation to be used, and to waive the assertion of any statute of limitations defenses in Michigan that arose after the case started.

The defendants also agreed to apply the discovery rule as understood and applied in California in determining the accrual of a cause of action, and Jones granted the defendants’ motion based on the stipulations.

She also found that public and private interest factors warranted litigating the claims in Michigan because none of the litigants was a California resident and no injuries or tortious conduct occurred in California, and she opined that the case would place a substantial and undeserved burden on California courts and taxpayers.

On appeal, the plaintiffs argued that the stipulations did not adequately deal with limitations issues in Michigan and they contended the suit could be barred there unless California law on the statute of limitations and the discovery rule applied. Presiding Justice Roger W. Boren, however, wrote that the defendants had effectively stipulated to doing so, and he rejected as “a rash assumption” the plaintiffs’ suggestion that a Michigan court might decline to honor the stipulation.

The justice said Jones did not abuse her discretion in ruling that the claims might be more appropriately tried in Michigan, noting that California had no connection to the plaintiffs or the defendants. Chiquita and Del Monte are headquartered in Ohio and Florida, respectively.

The plaintiffs pointed to Dow’s activities in California before 1977 mixing and finalizing the pesticide in California, selling it there and maintaining sales offices, but Boren said “such unrelated activities by Dow in California do not create a California interest in plaintiffs’ subsequent and geographically unrelated claims.”

He rejected the plaintiffs’ challenge to Jones’ reliance on the factor of court congestion. He also said she did not err in dismissing the action outright rather than staying it and retaining jurisdiction because the plaintiffs were not California residents and the court had no “drastic concerns” about the ability to obtain a fair trial in Michigan.

Justices Kathryn Doi Todd and Judith M. Ashmann-Gerst joined Boren in his opinion.

Dow was represented by Gennaro A. Filice III, Paul R. Johnson and Richard H. Poulson of Filice Brown Eassa & McLeod, and Michael L. Brem of Schirrmeister Diaz-Arrastia Brem.

Frederick J. Ufkes of Hinshaw & Culbertson and Boraz S. Morag of Cleary Gottlieb Steen & Hamilton represented Del Monte, while J. Richard Morrissey and Nathan M. Spatz of Pillsbury Winthrop Shaw Pittman represented Chiquita.

Joe J. Fisher II and Mark Sparks of Engstrom of the Provost Umphrey Law Firm and Elizabeth Crooke of Lipscomb & Lack represented the plaintiffs.

The case is Abrego Abrego v. Dow Chemical Company, B222612.


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