Companies ask Del. SC to dismiss lawsuit over banned pesticide

By Jessica M. Karmasek | Apr 15, 2013

DOVER, Del. (Legal Newsline) -- Last week, attorneys for Dow Chemical Co. and Dole Food Company Inc. asked the Delaware Supreme Court to dismiss a lawsuit against them over a now-banned pesticide that has been linked to sexual and reproductive abnormalities.

On Wednesday, the state's high court heard arguments in Dow Chemical Corp. & Dole v. Rufino. Attorneys for the two companies argued that the lawsuit against them should be dismissed due to Delaware's statute of limitations.

In 1993, a number of plaintiffs filed a putative class action claim in a Texas state court alleging personal injuries suffered by workers in various foreign countries due to exposure to a pesticide.

Within a short while, the case was removed to a federal court in Texas. Issues then arose concerning federal jurisdiction over one of the defendants, a foreign company and forum non conveniens. The district court conditionally dismissed the suit on that latter ground without deciding the request for class certification but it left open the possibility of reopening the case.

Years later, it was reopened after the U.S. Supreme Court, in a parallel litigation, held there was no federal jurisdiction over the same defendant.

Thereafter, plaintiffs asked the district court in Texas to reopen the case and remand it to the state court, which it did.

In June 2010, that court finally denied the plaintiffs' request for class certification.

Then, in July 2011, one of those plaintiffs, Jose Rufino Canales Blanco, filed suit in Delaware.

Blanco worked on a banana plantation in Costa Rica from 1979-80 as a contract laborer.

He alleges that during this time, he was exposed to a now banned toxic pesticide known as dibromochloropropane, or DBCP. Banana farmers used DBCP to kill worms that attack the roots of banana trees.

Exposure to DBCP is known to cause sterility, sexual and reproductive abnormalities and even cancer.

Delaware has a two-year statute of limitations for personal injury cases. In particular, the state jurisprudence has recognized tolling of the statute of limitations where a plaintiff relies upon a pending class action in the same jurisdiction.

In this case, the companies argue that Delaware should not recognize cross-jurisdictional tolling -- that is, its statute of limitations is tolled by actions in another jurisdiction.

Last year, Superior Court Judge Jerome Herlihy ruled against the companies. He sided with Blanco, holding that the state's statute of limitations was tolled even though the original filing was in another jurisdiction.

In particular, the two-year clock did not start until the 2010 decision by the judge in Texas, Herlihy ruled.

In their arguments last week, the companies contend the lower court's ruling -- if upheld -- could lead to a wave of "forum shopping" lawsuits in the state.

From Legal Newsline: Reach Jessica Karmasek by email at

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