Pesticide Action Network Updates Service (PANUPS)
A Florida jury has found DuPont Co., makers of the fungicide Benlate (benomyl) liable for racketeering, negligence, fraud and defective product claims in a lawsuit filed by two Costa Rican-based plant nurseries. DuPont was ordered to pay US$78.3 million to the nurseries, but announced that it would appeal the decision.
This is the latest in a long line of cases against DuPont that have resulted in litigation and settlement charges totaling approximately US$1.3 billion to the company over the last ten years. In April 2001, DuPont announced that it would phase out sales of Benlate around the world by the end of 2002. (See PANUPS: DuPont Withdraws Benlate from Market, May 7, 2001 at http://www.panna.org./panna/resources/panups/panup_20010507.dv.html.)
The racketeering charges were based on information gathered from internal DuPont documents showing that the company conducted tests in Costa Rica in 1992, but destroyed the records as claims against Benlate mounted. The growers' attorney maintained that DuPont had launched a corporate "damage control" program by assigning an attorney to supervise the testing, skewing some results and discarding those that were unfavorable.
A plant pathologist from Pennsylvania State University, testifying for the growers, stated that DuPont documents dating back to 1980 describe Benlate as an unstable product prone to deterioration in hot, moist conditions. According to his testimony, some plants treated with Benlate grew to only 10% of their expected height, miniature roses in Florida dropped all of their leaves within two days of treatment, and Hawaiian orchids treated with Benlate were too malformed to sell. The plant pathologist attributed the problems to a natural byproduct of the breakdown of Benlate that, in his opinion, turned the fungicide into an herbicide.
DuPont's attorney stated that after U.S. testing in 1992, "DuPont reached the conclusion, the inescapable biological conclusion, that Benlate could not be the cause of the damage." According to DuPont, the problem was due to a one-time incident of herbicide contamination at a Benlate mixing plant. However, growers' complaints about crop damage continued long after the contamination occurred.
In a related story, attorneys representing growers in another Benlate case five years earlier made a side deal with DuPont as part of the settlement. The attorneys, who represented 20 farmers and nurseries suing DuPont for Benlate damage, personally collected US$6.4 million in return for agreeing to never bring another Benlate case against the company. The growers accepted a settlement of US$59 million from DuPont, but were not told about the side agreement with their lawyers, who also received US$20 million in fees for the case.
Some of the growers have since filed a malpractice suit against the lawyers and are also seeking punitive damages. DuPont defends the payment to the lawyers saying that the company didn't feel it was in its interest to bankroll the additional cases that these attorneys were threatening to pursue. DuPont maintains that while the side agreement was confidential, the confidentiality did not apply to the lawyers' clients. Attorneys for the plaintiffs are in the discovery phase and no trial date has been announced.
Sources: "DuPont hit with $78.3 million fine, ditches Benlate," Reuters, August 13, 2001. "Costa Rican farmers seek $29 million in Miami trial," Associated Press, August 8, 2001. "DuPont suffers blow as Benlate racketeering trial gets under way in Miami," Associated Press, July 9, 2001. "Clients sue over secret agreement," Miami Herald, February 22, 2001.
Contact: PAN North America.
PANUPS is a weekly email news service providing resource guides and reporting on pesticide issues that don't always get coverage by the mainstream media. It's produced by Pesticide Action Network North America, a non-profit and non-governmental organization working to advance sustainable alternatives to pesticides worldwide.