By Vicent Boix
On March 22, Nuevo Diario reproduced the statements of the executive vice president of Dole Food Company Inc., Michael Carter, in the framework of possible negotiations with a group of people affected by the agrochemical DBCP (Nemagón and Fumazone) headed by Victorino Espinales.
On March 22, Nuevo Diario reproduced the statements of the executive vice president of Dole Food Company Inc., Michael Carter, in the framework of possible negotiations with a group of people affected by the agrochemical DBCP (Nemagón and Fumazone) headed by Victorino Espinales. Present at said public appearance were Margarita Gurdián (Minister of Health), members of the Attorney General's Office and Espinales himself.
Carter didn't beat around the bush. It was direct, clear and concise. As conditions for future settlements, he demanded that the lawsuits filed against Dole and the repeal of Law 364 be withdrawn. From other sources, I have learned that Carter would have offered the possibility of new investments in the country.
So far the summary of what happened. Let's move on to analyze and unravel the details in detail. As Valeria Imhof points out in her article of the 22nd, Carter starts from the premise that the DBCP did not cause harm to the workers who applied it in the fields. Specifically it says:
"There is no scientific support for the harmful consequences of Nemagon, except for male sterility in those who were exposed in the manufacturing plant, so Dole has never lost a lawsuit as a result of Nemagon in the United States."
Already in 1961, Dr. Torkelson and a team of scientists published in the journal Toxicology and Applied Pharmacology, an article where they began to discover the negative effects of the chemical. It is the first public document and the following can be read in it:
"This report reviews the results of toxicological studies on laboratory animals, conducted to analyze the toxic hazards associated with their manufacture, handling, and use."
On October 29, 1979, Douglas M. Costle, then Administrator of the United States Environmental Protection Agency (EPA), unconditionally suspended all uses of DBCP except for pineapples in Hawaii. For this, he affirmed that the chemical causes not only male sterility as Carter says, but that it is also a probable mutagenic and carcinogenic agent in humans. Then add:
“I also find that human exposure to DBCP can occur as a result of drinking drinking water contaminated with DBCP; consumption of DBCP residues in crops produced on soils treated with DBCP; inhalation of levels of DBCP in ambient air in or around fields treated with DBCP; and by dermal contact with DBCP, either during application and related procedures, or due to residues in the soil, plant bark or foliage. "
As can be seen, both the comments of Dr. Torkelson's group of scientists and those of the EPA Administrator do not admit any distinction by job title. Not only can DBCP manufacturing plant operators be affected, but it is clearly specified that the chemical poses a hazard to applicators and workers in the field. EPA recognizes that contact can occur even in adjacent fields. And it goes further when it points out that exposure can be caused by the consumption of food with DBCP residues, which is why the unconditional suspension of 19 licenses had been promoted in 1977.
Far from limiting risks to manufacturing plant operators, EPA recognized and admitted various avenues of contact and risk. But they were not the only ones, there was another much more worrying.
Between May and July 1979, the California Department of Health Services (CDHS) tested water wells in some areas where DBCP had been sprayed. The results were surprising. The chemical was found in 36.6% of the 527 samples. Also in wells and groundwater for domestic consumption. Based on these findings, CDHS concluded that there was a risk to the health of people in the contaminated areas of California.
Based on these tests, the threat from the chemical took on a new dimension. From being a product that affected only the workers of the production factories, as Carter claims, to being a true public risk capable of moving through water sources and endangering the health of thousands of citizens.
These data would show that there was contact and risk for the thousands of affected Nicaraguans who today fight for a little justice. And speaking of justice, in his public appearance, Carter also makes some inroads in this field and in the words of Valeria Imhof he declares:
"Despite the company's announcement to sit down and talk, Carter denied that it had been affected by Nemagón in Nicaragua, arguing that no North American agricultural worker who had contact with the pesticide has filed any lawsuit in that country."
Let's uncover some of the battles won by farm workers affected by the DBCP and see how Carter's assessments are imprecise.
1- In May 1983, two North American agricultural workers (Pérez and Jones) win legal proceedings against the Dow Chemical company, due to the damages caused by the DBCP.
2- Borja v. Dole Food Company. Initially filed in Texas, it is currently awaiting trial date. It includes five Costa Rican agricultural workers represented by attorney Fred Misko. They would only face Dole.
3- Delgado v. Shell Oil Co. Without a doubt the most emblematic case of the DBCP fight in North American courts. It was introduced in 1993 and after many years of struggle in various countries around the world, in 2005 it was returned again to the state courts of the state of Texas that accepted to process the cases. It would be made up of Costa Rican agricultural workers advised by attorney Charles Siegel. They would only face Dole.
4- Already in Nicaragua, the results obtained are frankly positive. The group of Ojeda, Gutiérrez and Espinoza has obtained several favorable sentences under Law 364. Dole is one of the accused companies. Although at the moment it has not been able to execute them in the United States, it is trying in several South American countries. Venezuela would have accepted the cause. In addition, in January of this year, he succeeded in having a Managua court seize the Shell brand.
5- The Provost & Umprey group and its Nicaraguan partners Barnard Zavala, Martha Cortes and Jacinto Obregón; they won in August 2005, a lawsuit under Law 364 in a Chinandega court. The sentence written by Dr. Socorro Toruño is forceful, devastating and enlightening. For more details about it, you can read the four reports in a row that Valeria Imhof made in Nuevo Diario. This group is currently working to enforce the sentence in the United States and has filed new lawsuits in Chinandega.
6- The group of Juan José Domínguez and his Nicaraguan partner Antonio Hernández, has already participated in the first trial carried out in the United States for Nicaraguan agricultural workers. They await sentencing for this year and have new causes ready in both the United States and Nicaragua with Law 364.
When observing these data, it can be seen that in the United States there have been workers who have obtained triumphs in DBCP damages lawsuits. In these cases, Dole was not charged because in this country the chemical had a rather domestic use, that is, it was applied mainly by small farmers and peasants. It was in numerous plantations in other countries where agro-export companies like Dole used it. That's why the workers suing Dole in the United States are foreigners.
Having clarified this aspect and contrary to what Carter says, my personal opinion is that the DBCP's judicial fight is at the best moment of all, and especially for the affected Nicaraguans. In 5 of the 6 cases that have been exposed above, the Dole company has either been sentenced or is part of the judicial process. The amount of compensation that has been issued in Nicaragua is known, but a victory in the case that Juan José Domínguez decides in the United States could grant much more succulent compensation, thus raising the economic scale for future out-of-court settlements.
From there we should begin to glimpse the sudden interest of Dole is to reach the aforementioned agreements.
Some considerations to keep in mind.
1-Traditionally, in the processes opened around the DBCP, companies have directed their efforts to avoid the trial, rather than to face it and defend themselves from the accusations. In the United States, thousands of affected people from various countries have been filing lawsuits for years. The strategy used by companies to avoid lawsuits has revolved around the doctrine of the “inappropriate forum”. With it, the defendants always justified that the most convenient and appropriate courts (courts) to elucidate the causes of the foreign victims, were those of the affected countries themselves. Most of the lawsuits were dismissed in this way due to an “inappropriate forum”, despite the fact that the option exercised by thousands of foreign victims consisting in opening cases in the United States was perfectly legitimate, in accordance with the law and endorsed in some international agreements.
Thus, for example, a person affected by the Guatemalan DBCP who had presented his case in a US court, through the "inappropriate forum" lost the opportunity to participate in a trial in the United States and was forced to present his lawsuit in Guatemalan courts.
And there came the problem. In most of the countries affected by the DBCP it was almost impossible to carry out a trial of this nature due to the lack of applicable legislation. The accused companies knew that very well, and it was ultimately what they were looking for: to evade justice.
2-Law 364 approved by the Nicaraguan Assembly in 2000, represents a 180 degree turn in the legal scenario of the DBCP cases in Nicaragua. A law is approved that allows handling of this type of case, thus blocking the traditional escape route used by companies.
Now a Nicaraguan affected person can open a case in the United States and companies can no longer so easily resort to the “inappropriate forum”, because the Nicaraguan legal system contains Law 364 that is capable of judging and convicting them. The other possibility that has been applied by some lawyers is to directly initiate the process in Nicaraguan courts.
Regardless of the option that lawyers choose, multinationals are facing trial and that is precisely what they have been avoiding for decades. Here is the importance of Law 364 for workers and the great stone in the shoe that it represents for companies.
3-From the two previous points, a contradiction can be discovered that clearly projects the double standards of the accused multinationals.
Initially, they resorted to the “inappropriate forum” arguing that it was better to initiate the cases in the countries of the accused, knowing that this option was practically utopian given the lack of legislation. Now that many affected people have presented the causes in their countries of origin (Nicaragua), companies are fighting for those affected to withdraw them and in the process repeal the law that facilitates the process. In short, they work tirelessly to avoid processes.
Even in some of the lawsuits in Nicaragua, multinationals have tried to torpedo them rather than confront them. On this point, Dr. Toruño indicates in her sentence the following:
"The defendants' marked reluctance to deal head-on with the content of such evidence only increases their power of conviction." or:
“… The defendants did not dispute the specific content of the documents or allege their falsity. None of the defendants suggests that they did not know that the DBCP was toxic (…) none argue that the workers were clearly warned about the dangers of the nematicide, or that nemagón and fumazone had explicit instructions in Spanish, nor do these defendants state that a workers were given protective equipment. Very serious accusations, such as that the pipes and sources of water for human consumption were also used for the DBCP, have not been specifically attacked by these defendants. These companies also avoid outright denying the assertion that after the DBCP was restricted in the United States of America, they entered into contracts for its sale or use “abroad” (…) Faced with such serious and clearly documented accusations, the strategy of defending themselves with formalities and general refusals, without going into the substance of the matter, is to evade the truth of the facts. "
4- The first thing that came to mind after reading Carter's statements would be summarized as follows: a company that pleads not guilty to an accusation wants to negotiate and reach an agreement with those who accuse it.
If this curious "philanthropic detail" is taken into account and everything that has been exposed so far, I think that Dole's intentions are gradually being known, which would go through getting rid of the demands of the Nicaraguan affected and what is possibly more important , to bury Law 364 that, in addition to having shaken the paradise of impunity in which multinationals happily lived, also threatens to spread its basic essence of justice and sovereignty to a continent that gives obvious signs of not wanting to continue being the backyard of U.S.
5-And in all this, how does the Espinales group fit in? In principle, it must be remembered that thousands of those affected do not belong to this group and therefore will not negotiate with Dole, at least at this juncture. The reason is that they are participating in legal processes that are being or may be fruitful.
The Espinales group must be applauded for the commendable and heroic struggle in the streets that they have maintained during these years. They have known how to defend Law 364 like nobody else and have managed to internationalize the fight. But for different reasons they broke ties with some lawyers and have run out of judicial options, at least so far. Consequently, the position in the negotiation is very unfavorable.
Although all are speculations, it is more than likely that if an agreement between the parties materializes, the agreed economic sums will be minimal and in no case fair. Also subject to clauses that will prevent those affected from suing Dole in the future.
But the big question is whether Dole will want to use the repeal of Law 364 as a bargaining chip in the negotiation with the Espinales group. Said in a more direct way, if in exchange for financial compensation, this human group would be willing to sacrifice a law that they defended even with the health and life of those who participated in the mythical "marches of no return."
If this remote possibility takes life, the scene would once again be one of absolute division between the different groups of workers. Hopefully I never know and the Espinales group maintains the dignity that always characterized it. Negotiating with a company is legitimate, but never at the expense of others. Time will tell the rest. Luck and justice for all.
* By Vicent Boix
Part of the information used in this article can be found in the summary of the case Miguel Sánchez Osorio y otros v. Standard Fruit Company and Others. Processed in the Second Civil and Labor Court of the District of Chinandega, Nicaragua, in May 2005. Also of the summary of the case Juan Ramon Herrera Ríos y otros v. Dole Food Company Inc and Others. Processed in the Second Civil and Labor Court of the District of Chinandega, Nicaragua, in early 2006.