were really disappointed at the decision.” Shell attorneys contend that bringing the case to the U.S. courts will be much more than inconvenient. “The problem that you have is that all the incidents took place elsewhere in the world, how can we get discovery, how can we get the medical records, how can we know what doctors examined the plaintiffs, how can we know what exposures the plaintiffs had, how can we even know what products the plaintiffs dealt with?” asked Evans. The Texas courts can’t force relevant witnesses to come forward from Costa Rica or doctors to release their records, he said . “We think we’re put in an extreme disadvantage to defend our case.” David Robertson, a professor at the University of Texas Law School, disagrees. According to Robertson, the problems that Shell or Dow would have in trying the case cannot fairly be compared to the plaintiffs’ difficulty in trying it in Costa Rica. “There’s no question but that these things are logistical nightmares wherever you have them but the fact is that it can be done here and mostly it can’t be done anywhere else,” Robertson said. Siegel maintains that the forum non conveniens argument was a device to keep the case out of U.S. courts, a point noted by Texas Supreme Court Justice Lloyd Doggett in his concurring opinion. “Shell Oil Company is a multinational corporation with its world headquarters in Houston, Texas. Dow Chemical Company, though headquartered in Midland, Michigan, conducts extensive operations from its Dow Chemical USA building located in Houston,” wrote Doggett. “The chemical allegedly rendering the workers sterile was researched, formulated, tested, manufactured, labeled and shipped by an American company in the United States to another American company. The decision to manufacture DBCP for distribution and use in the Third World was made by these two American companies in their corporate office in the United States. Yet now Shell and Dow would argue that the one part of this equation that should not be American is the legal consequences of their actions.” THE REAL REASONS for removing the case to Costa Rican courts, however, are clear to both plaintiffs and defendants. A costly trial would be impossible in Costa Rica, since the total compensation that could be received there wouldn’t cover even a fraction of the costs associated with suing a major multinational corporation. Even Evans recognizes that there is a disadvantage in workers’ filing such suits in Costa Rica. “The laws in Costa Rica provide for a set scheme of recovery. It provides with great specificity the amount of money that the plaintiffs are able to recover where in Texas we have a far wider range of recovery,” he said. After damaging evidence surfaced showing that the manufacturers of DBCP had had information on the health risks of the pesti cide for many years, workers alleging sterility from exposure to the pesticide in the United States received settlements in the high six figures, according to Siegel, while typical compensation for a worker sterilized on the job in Costa Rica is $1,500. Since Alfaro and the other farmworkers earn only a little over a dollar an hour, they would be unable to pay for a lawyer in Costa Rica nor would a settlement of this size be sufficient to cover costs for both lawyers and personal compensation. “We have been fighting Dow and Shell for six years now just on the issue of where the case is going to be tried,” Siegel said. “Our firm has spent a good deal over $100,000 on the case so far. As a practical matter, the only place in the world where workers can manage to take on companies like this is the United States.” In the United States, plaintiffs’ law firms try such cases on contingency, which allows them to collect a percentage of the damages, and to recover expenses, if they prevail. That arrangement is not available in Costa Rica or much of the Third World, where workers often find it impossible to even get into the courthouse. By the time the lawsuit comes to trial in midto late-1991, Siegel said, his firm will have spent hundreds of thousands of dollars. All the workers, their doctors, and their coworkers will have to be flown in for depositions, at the plaintiffs’ expense. And the trial may be put off once again, since lawyers from Shell and Dow are working on an appeal to the U.S. Supreme Court on the grounds that they have been denied due process of law. THE FORUM NON conveniens doctrine was originally intended to weed out cases that were clearly not appro priate for U.S. courts. Until the 1970s the doctrine was rarely used, except where the plaintiff was abusing the process or attempting to harass a defendant. But in the federal court system dominated by Reagan appointees, where most such cases were tried, the doctrine conveniently allows judges to shrink their dockets and to dismiss cases that they opposed on ideological grounds. “The appointments that have been made, particularly in the Reagan years, [were] of judges who were screened for an ideological bent that would predispose them to align with major U.S. corporations rather than Costa Rican farmworkers” said Tommy Jacks, president of the Texas Trial Lawyers Association. Reagan appointees had been looking for a new way, to deal with the growing number of foreign personal injury and death cases, and forum non conveniens fit the bill perfectly. It allowed judges to dismiss cases when the traditional rules of jurisdiction would have allowed such cases to remain in U.S. courts. “The federal courts began dusting off and using that old doctrine more and more readily,” said David Robertson. “This doctrine says we admit that rules of jurisdiction say the case is properly here but we think we have discretion to decline to hear it.” The shift of focus from abuse of the system to the judge’s discretion has allowed the federal judges to dismiss almost any case filed by a foreign plaintiff, since the other forum is almost always more convenient. Judges bow out, not on a case’s merit, but rather its complexity, the number of plaintiffs, the judge’s disposition toward the issue, and the size of the court dockets. “America, as far as I know, is the only place in the world where it’s legitimate for a court to say, ‘part of the reason we’re declining to hear this case is our dockets are crowded,’ ” said Robertson. As the federal courts became more assertive in their use of the forum non conveniens doctrine, and increasingly closed off access to foreigners, foreign plaintiffs started looking to the state courts. But at the state level, many courts had already followed the feds’ lead. Forty states and the District of Columbia have recognized forum non conveniens. Some states, though, held out. Texas, although allowing some cases to be dismissed on forum non conveniens grounds, left in place a state law giving foreigners access to Texas courts in certain cases. The Supreme Court decision, however, eliminated the judicial discretion that had allowed forum non conveniens to be applied on an ad hoc basis. For many multinational corporations, the absence of forum non conveniens in Texas is particularly worrisome. Texas is home to 39 of the Fortune 500 corporations, according to The New York Times. And so many corporations conduct business in the nation’s third most populous state, that more plaintiffs might claim that a corporation has significant enough ties with the state to mandate that lawsuits be heard here. The importance of Texas’s cooperation in the battle to limit corporate liability is not lost on the business community. Business leaders are already predicting repercussions that the Alfaro decision will cause. They claim that without the forum non conveniens doctrine, Texas will be seen as too inhospitable to multinational corporations and that companies won’t locate where they’re not wanted. Their opponents describe such claims as scare tactics. Safeguards, they argue, are still in place to ensure that cases brought to Texas courts have both merit and standing in the state. Jurisdictional rules still apply and the statute itself only allows plaintiffs from countries that maintain equal treaty rights with the United States. A majority of countries apparently do not have such treaties with the United States. And cases can still be removed to federal court, where forum non conveniens is alive and well, unless there is a local defendant in the case. But dissenting justices argue that despite such protections, cases by foreigners will clog the docket, forcing Texans to wait for justice. The state, charges Associate Justice Raul Gonzalez, will be an “irresistible forum for all mass-disaster lawsuits,” while Hecht charges that it will bring “personal injury THE TEXAS OBSERVER 1 1
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