ustxtxb_obs_1990_07_13_50_00010-00000_000.pdf

First World Justice Costa Rican Farmworkers in Texas State Courts BY ELLEN HOSMER DIBROMOCHLOROPROPANE must have seemed like a miracle pesticide when it was introduced on the banana plantations of Costa Rica. Injected into the ground, DBCP eradicated the nematode worm that persistently ate the roots of the banana plants. For companies like Standard Fruit, the dibromochloropropane Chemical meant huge harvests and healthy profits. For farmworkers, trudging through the banana fields and applying DBCP was a way to feed their families. But dibromochloropropane had another effect, one that Shell and Dow were less than eager to have associated with their popular and deadly efficient substance. Not only did DBCP eliminate the nematode, it caused sterility in humans who were exposed to it. As early as the 1950s, animal studies of the health effects of DBCP produced disturbing results. In tests conducted by both Shell and Dow, sperm counts in animals were lowered and testicles shriveled up and atrophied when lab animals were exposed to the pesticide. In the United States, workers who handled the product at the manufacturing end unwittingly provided the human specimens for tests of the pesticide’s safety. Workers in several plants that manufactured DBCP found that after working with the product, they became sterile. Although Shell, Dow, and other companies acted quickly to limit the damage to U.S. workers and thereby stop the multi-million dollar lawsuits that the allegations had spurred, the companies allegedly continued to ship the product overseas for use by Third World farmers. Environmental activists describe DBCP as one of the “Dirty Dozen” pesticides. And it is not only environmentalist groups that have been concerned about the chemical. DBCP has been on the U.S. Environmental Protection Agency hit list since 1977, when the agency ordered a phase-out of the pesticide’s use on food. Later, the EPA ordered off the U.S. market all pesticides that contained DBCP. Yet selling DBCP, and other similar products overseas, was and is not prohibited by U.S. law. In Costa Rica and many other Third World countries it took much longer to get the pesticide out of use. By the time public con Ellen Hosmer is a writer living in El Paso. LOUIS DUBOSE Attorney Charles Siegel cern resulted in some action, a thousand workers allegedly had been sterilized in Costa Rica alone, and many face elevated risks of stomach cancer from exposure to the pesticide. That would have been the end of the story, simply another tragic example of Third World workers or consumers exposed to hazardous products or processes no longer acceptable in the United States. But Domingo Castro Alfaro and 81 other Costa Rican workers and their spouses decided to challenge the U.S. corporations that they claim had drastically changed the course of their lives. They took their case to the courts of the country where the product had been produced. Thrown out of courts in California and Florida, on grounds of the legal doctrine forum non conveniens, they persisted and brought their case to Texas, home of Shell’s world headquarters and of a Dow-owned chemical plant that is the largest in this country. At first, the farmworkers and their attorney, Charles Siegel of the Dallas law firm Baron & Budd, found that Texas was less than receptive to their cause. Their suit against Shell and Dow was dismissed in a Houston state district court, on the grounds that the court was not a convenient \(that is, “proper” the case. At the appeals court, however, the farmworkers convinced the judge that their case should be heard in Texas. Dow and Shell quickly appealed that decision to the Texas Supreme Court. 0 N MARCH 28, 1990, the Texas Supreme Court handed down a landmark decision that shocked the business community and bucked the national trend restricting foreigners from suing U.S. corporations in U.S. courts for injuries caused overseas. The court’s 5-4 decision served notice to U.S. companies that if they hawk their hazardous wares overseas they may find themselves hauled into U.S. courts, at least in Texas. The opinion in Dow Chemical Company and Shell Oil Company v. Domingo Castro struck down a doctrine known as forum non conveniens, which allowed judges to dismiss suits by foreign plaintiffs on the grounds that the forum or court that the plaintiff had chosen to sue in was not convenient or proper because the injury or death took place elsewhere. The Supreme Court’s decision, though not a ruling on the merits of case itself, was nevertheless a victory for the farmworkers and a setback for Dow and Shell and other corporations who apply different health and safety standards to products and processes they ship overseas. The ruling provoked an outcry from the business community. The Texas Association of Business warned that it could spell disaster for the Lone Star State. “[A]llowing foreign workers to sue Texas companies could drive industry from the state or keep new companies from moving in,” the association noted in a brief statement. It is, they wrote, a “significant blow not only to Texas business but to future economic development.” Dissenting Supreme Court justices had equally ominous predictions. Why “should Texas be the only state in the country, perhaps the only jurisdiction on earth, possibly the only one in history, to offer to try personal injury cases from around the world?” asked Justice Nathan Hecht in his dissenting opinion. “As the courthouse of the world, will Texas entice employers to move here, or people to do business here, or even anyone to visit?” Lawyers from Shell were astounded by the decision. “We thought the law was well established that the doctrine of forum non conveniens was available in Texas,” said James Evans, an attorney with Shell. “We 10 JULY 13, 1990