In 1979, American environmental authorities banned a dangerous pesticide known widely as Nemagon. This toxic bug-killer – which was manufactured by big firms such as Dow Chemical and also known by the name dibromochloropropane, or DBCP – was accused of making men sterile and causing other health hazards.
But that ban only covered sale of Nemagon here on domestic soil. Incredibly, despite knowing the risks, Dow and its rivals continued to sell the product for a number of years in other places such as Central and South America, Africa and the Philippines — where the environmental laws remained lax and there were willing buyers such as the Dole Food Co., who still insisted on spraying their banana crops.
Poverty-stricken farm workers in places like Nicaragua paid a terrible price for their exposure. In 2003, when the extent of the use of Nemagon in the Central American nation was becoming fully known, the New York Times spoke with one of those workers, Manuel Guido Montoya. He said that not only could he not have children to help in the field but that his wife left him when she realized they wouldn’t be starting a family.
”Walking through the plantations, we breathed in the vapors,” the worker, Guido, said of his time on the banana plantation in the 1970s, recalling the days when he and co-workers were drenched in the chemical. ”I’d get headaches, a bloody nose, stomachaches. You put up with a lot of pain.”
“It’s a sperm-killer,” I told the New York Times recently when the newspaper interviewed me about major new developments in the case. “Thousands of individuals were knowingly put into the zone of risk of these pesticides after it was banned.”
Now, thanks to a novel new line of legal attack launched by an international legal team that includes me as well as François-Henri Briard, a French lawyer who practices before that nation’s Supreme Court, Nicaraguan banana growers might finally reap some justice, in the most unlikely of venues.
Earlier this month, our team moved to seize $110 million in assets owned in France by legal entities of the Dow group – what we hope will be the first step in an effort to rely on the French courts to achieve what other jurisdictions have been unable to do, which is make good on past judgments that put Dow and other chemical firms on the hook for hundreds of millions of dollars in damages.
A judge in Paris has agreed to hear the case of South American workers who have not previously been compensated at a later date in 2020. This may finally unlock a case that’s been stalled since an $805 million judgment against Dow, Shell Oil, and the firm once known as Occidental Petroleum provided hope — on paper — to more than 1,200 injured workers.
How we got here is a travesty of justice.
As the claims from sick workers mounted during the 1990s, Nicaragua lacked the legal structure to bring a complicated action against foreign companies. As a result, the nation passed a law in 2001 that was specifically intended to allow lawsuits against the pesticide makers to proceed. Two years later, a court in the capital city of Managua heard the case and awarded a significant $490 million judgement against Dow, Dole and Shell.
Justice, right? Wrong.
Suddenly, the companies insisted that the Nicaraguan courts actually lacked the jurisdiction to try the matter. Shell said that because it has no office or employees based in Nicaragua the case couldn’t be tried there. Dow, according the New York Times, said at the time that the Nicaraguan law ”offends virtually every notion Americans have of fair play and substantial justice.” The defendants now wanted the cases tried in the United States.
The first case on American soil was brought in my hometown of New Orleans in 2003, on behalf of several thousand Central American workers. These American lawsuits have been remarkably successful — so much so that the defendants have consistently changed their theories of the case. By the end of the 2000s, the chemical companies were instead claiming fraud, insisting that some of the Nicaraguan plaintiffs had never worked in the banana fields.
But none of that has changed the underlying facts of the case – that these firms showed gross negligence in their use of Nemagon, and that thousands of workers were exposed and that many were sickened.
Briard’s theory of the case — that the offending companies’ actions in Nicaragua are in violation of both international and European Union law and that there are other elements of the case that make the French legal system a legitimate venue — is strong. He has noted, for example, that the legal reasoning used by Nicaraguan judges is derived from the French tradition. A court order in the case would have to be upheld throughout the entire 28-nation European Union.
This uphill, seemingly endless fight that shows how hard it can be to fight Big Business, whose patience and resources to fight any responsibility for their negligent actions seem limitless. We believe these companies knowingly poisoned people and then left without any penalty, knowing these workers would be denied a normal family life. But this new legal strategy offers hope that they will finally collect what that are owed by Dow.
