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Wednesday, September 18, 2019

Second Circuit seeks answers to questions in pesticide lawsuit by foreign banana workers against Occidental

Federal Court

By Colin Froment | Sep 10, 2019


NEW YORK (Legal Newsline) – A federal appellate court has sent questions to the New York Court of Appeals in a lawsuit filed by more than 100 former plantation workers and owners allegedly injured by the use of a pesticide across banana plantations in Central and South America for two decades.

The lawsuit, Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp., was initially filed in 2012 before the claims were transferred to the U.S. District Court for the Southern District of New York in 2017. During this time, Occidental filed a motion of judgment, stating that the claims were brought up after the state’s three‐year statute of limitations for personal injury suits. 

In January 2018, Judge Paul A. Engelmayer denied the motion, bringing up the many previous claims related to this case that were initially introduced between 1993 and 2010 in a class action in Texas.

Now on appeal, Judge Robert Sack of U.S. Court of Appeals for the Second Circuit wrote Aug. 7 that several questions need answered that the New York Court of Appeals is better suited to answer. Sack said the state court needs to address if New York law recognizes cross‐jurisdictional class action tolling and if non-merits dismissal of class certification can terminate class action tolling under New York law and if the orders did so.

During the 1960s through the 1980s, Occidental and other corporations manufactured, sold, distributed, and applied dibromochloropropane (DBCP) on plantations, the Second Circuit states. While managing and residing on the lands, the plaintiffs - who are from Costa Rica, Ecuador, Panama and other countries - allegedly were exposed to the chemical and developed many major health issues, including sterility, sexual and reproductive abnormalities, cancer, liver damage, vision loss, chronic skin disorders, and compromised pulmonary and respiratory systems.

Sack wrote that in 1976, the Environmental Protection Agency (EPA) classified the pesticide as a suspected carcinogen. A year later, it prohibited its use nationwide with the exception of some areas in Hawaii. Sack wrote that Occidental continued to manufacture and sell DBCP for agricultural use until at least 1979.

Previous lawsuit attempts from groups of plaintiffs were filed in courts in Texas, Costa Rica and Hawaii from 1993 to 1997. By 1999, all cases were agreed to be dismissed by the courts with agreement from the defendants. 

The U.S. District Court for the District of Hawaii dismissed the cases on forum non conveniens, or the power to dismiss cases to other courts that are better suited for the specific case. The Costa Rica courts dismissed their claims due to a lack of personal jurisdiction, a decision that was eventually affirmed by the Costa Rica Supreme Court.

In 2011, claims in a federal court in Louisiana were filed but dismissed in 2012 because of the state’s statute of limitations. In the same year, eight additional complaints were filed by a group of plaintiffs in Delaware, where the case was eventually transferred again to New York in 2017 when Engelmayer stated the state’s Court of Appeals was most likely to adopt cross-jurisdictional tolling.

During the appeal process, Occidental stated that it does not believe New York courts would permit cross-jurisdictional tolling, according to the opinion.

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U.S. Second Circuit Court of Appeals New York Supreme Court

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