An appeals court has erased a $26 million award against DuPont in a lawsuit brought by two Costa Rican growers who claimed the now-discontinued fungicide Benlate caused widespread plant damage on their farms. The Third District Court of Appeals decided ‘it is virtually impossible to reconcile’ the size of the award for lost profits with the evidence, saying the dollar amount ‘must be established with a reasonable degree of certainty.’ In other setbacks for the growers, the three-judge panel sent the case back for a retrial without considering the growers’ racketeering claims and without a special instruction telling jurors that they could hold against DuPont its destruction of testing results.
In the trial nearly three years ago, a jury sided with the growers, Palmas y Bambu and Productura de Demillas, in less than ten hours and agreed with claims of racketeering to triple the award. The appeals court wiped out both the underlying award and the chance of triple damages. During the original trial, DuPont, Wilmington, Delaware, dismissed the growers’ allegations as a smear campaign built on ‘pseudoscience’. It said Benlate was safe.
The Costa Rican growers said that in 1990 and 1991, bags of Benlate were exposed to moisture in their humid climate and the resulting chemical reaction resulted in the build-up of a toxic chemical, damaging their plants. In 1992, the company treated a test planting in Costa Rica with Benlate but destroyed the plants and the records of the tests before the two growers sued in 1997. DuPont said the plants were diseased. But Miami-Dade Circuit Judge Amy Steele Donner decided the missing results could be used by jurors as evidence of something wrong. The appeals court rejected that ruling.
US and Latin American growers have claimed in an assortment of lawsuits that DuPont launched a deceptive cover-up to shift blame from Benlate by concealing lab work and field tests, lying in sworn legal papers and intimidating and tampering with witnesses.
Agribusiness Examiner, No 350, May 2004. A weekly email newsletter providing in-depth running overview of agri-business activities. To subscribe email avkrebs@earthlinknet
[This article first appeared in Pesticides News No. 65, September 2004, page 18]