Canales Martinez v. Dow Chemical Co.

• Decision Date: 16 July 2002
• Docket Number: No. Civ.A. 95-3212.,Civ.A. 95-3212.
• Citation: 219 F.Supp.2d 719
• Parties: Lucas Pastor CANALES MARTINEZ, et al., v. DOW CHEMICAL COMPANY, et al.
• Court: U.S. District Court — Eastern District of Louisiana

219 F.Supp.2d 719

Lucas Pastor CANALES MARTINEZ, et al., v. DOW CHEMICAL COMPANY, et al.

No. Civ.A. 95-3212.

United States District Court, E.D. Louisiana.

July 16, 2002.

COPYRIGHT MATERIAL OMITTED

Michael P. Maslanka, Attorney at Law, Houston, TX, Stephen D. Susman, James T. McCartt, Michael Lee, Sofia Androgue-Gustafson, Johnny W. Carter, Susman Godfrey, LLP, Houston, TX, Gerald Edward Meunier, Stevan C. Dittman, Gainsburgh, Benjamin, David, Meunier & Warshauer, New Orleans, LA, Fred Misko, Jr., Edward Chin, John Volney, Fred Misko, Jr., PC, Dallas, TX, Charles S. Siegel, Attorney at Law, Dallas, TX, Scott Hendler, The Hendler Law Firm, Austin, TX, for Plaintiffs.

Michael L. Brem, F. Walter Conrad, Baker Botts, LLP, Houston, TX, Charles Morris Steen, Stephanie G. McShane, Steen, McShane & Williamson, LLP, New Orleans, LA, for Dow Chemical Co.

Sherman Gene Fendler, Don Keller Haycraft, Liskow & Lewis, New Orleans, LA, D. Ferguson McNiel, Vinson & Elkins, LLP, Houston, TX, for Occidental Chemical Corp.

Mary S. Johnson, Kiskow & Lewis, New Orleans, LA, Keith Eric Gisleson, Chaffe, McCall, Phillips, Toler & Sarpy, LLP, New Orleans, LA, Thomas M. McNamara, Liskow & Lewis, Lafayette, LA, Mark A. Marino, Attorney at Law, Destrehan, LA, David Randolph Richardson, Schully, Roberts, Slattery, Jaubert & Marino, New Orleans, LA, R. Burton Ballanfant, Attorney at Law, Houston, TX, for Shell Oil Co.

Phillip A. Wittmann, Richard Edward Sarver, John P. Farnsworth, Stone, Pifman, Walther, Wittmann & Hutchinson, LLP, New Orleans, LA, Terence M. Murphy, James S. Teater, Michael L. Rice, Jones, Day, Reavis & Pogue, Dallas, TX, for Standard Fruit Co., Dole Food Co., Inc. and Dole Fresh Fruit Co.

Robert Emmett Kerrigan, Jr., Darrell K. Cherry, Deutsch, Kerrigan & Stiles, New Orleans, LA, Samuel E. Stubbs, William D. Wood, Fulbright & Jaworski, Houston, TX, for Chiquita Brands, Inc. and Chiquita Brands Intern., Inc.

Henry Bernis Alsobrook, Jr., Adams & Reese, New Orleans, LA, Robert T. Greig, Amy S. Schulman, Boaz S. Morag, Cleary, Gottlieb, et al., New York City, for Del Monte Fresh Produce, N.A.

Steven W. Copely, Ernest Enrique Svenson, Gordon, Arata, McCollam, Duplantis & Eagan, LLP, New Orleans, LA, Peter R. Paden, Bryan Cave, LLP, for Dead Sea Bromine Co. Ltd. and Bromine Compounds, Ltd.

ORDER AND REASONS

BARBIER, District Judge.

Before the Court are defendants' Motion to Dismiss for Forum Non Conveniens and Motion to Strike Testimony of Alejandro Garro. Plaintiffs oppose the motions. The Court held oral argument on the motions on April 19, 2002, after which it took the matter under advisement. Now, having considered the record, the memoranda and argument of counsel, and applicable law, the Court finds the motions should be DENIED for the reasons which follow.

BACKGROUND

The instant Motion to Dismiss requires the Court to take up an issue that has vexed federal courts for nearly 20 years: whether the Court should dismiss the claims of scores of foreign plaintiffs who claim to have been rendered sterile by a chemical produced by the manufacturer defendants¹ and utilized by the fruit grower defendants² in banana-growing regions around the world, on the ground that this Court is an inconvenient forum. All of the direct defendants are United States corporations. The chemical in question, dibro-mochloropropane (commonly known as "DBCP") is a nematocide which defendants continued to use on foreign banana farms after its use in the United States was banned in 1977.³ The instant case⁴ involves plaintiffs who claim to have been exposed to DBCP on banana farms in Costa Rica, Honduras, and the Philippines.

Plaintiffs originally filed their suit in state court in Jefferson Parish, from which it was removed to this Court. On September 5, 1996, Judge Patrick Carr remanded the case based on his finding that third-party defendant Dead Sea Bromine Company, Ltd. was not a foreign state, and the matter was not preempted by federal law.⁵ Following the Fifth Circuit's decision in Delgado v. Shell Oil Co., 231 F.3d 165 (5th Cir.2000), holding that Dead Sea is a "foreign state" for purposes of the Foreign Sovereign Immunities Act, defendants again removed the case to federal court on November 15, 2000. The parties do not dispute jurisdiction or venue; the sole issue presently before the Court is the forum non conveniens question.

Arguing that the alleged exposure took place in plaintiffs' home countries, and that "virtually all of the evidence and witnesses are located there,"⁶ defendants contend that plaintiffs' home countries offer plaintiffs an adequate forum which also happens to be more convenient. Defendants further urge the Court to "resist plaintiffs' attempt to circumvent Delgado" and various post-Delgado decisions which it claims have "held conclusively that these claims should be brought in plaintiffs' home countries,"⁷ citing the Court to the decisions in Patrickson v. Dole Food Co., Civil Action No. 97001516 HG (D.Haw. Sept. 9, 1998), rev'd on other grounds, 251 F.3d 795 (9th Cir.2001), cert. granted in part, Dole Food Co. v. Patrickson, ___ U.S. ___, 122 S.Ct. 2657, 153 L.Ed.2d 834 (2002) and cert. granted in part, Dead Sea Bromine Co., Ltd. v. Patrickson, ___ U.S. ___, 122 S.Ct. 2658, 153 L.Ed.2d 834 (2002), and the Espinola-E cases; see, e.g., Espinola-E v. Coahoma Chem. Co., Civil Action No. 96-360 (S.D.Miss. Mar. 30, 1998), remanded by 248 F.3d 1138, 2001 WL 85834 (Table) (5th Cir.2001).⁸

Plaintiffs counter that defendants have failed to carry their heavy burden of persuasion which requires a showing that this is one of the very rare cases where, despite the fact that the Court has jurisdiction and venue is proper, this Court should decline to exercise its jurisdiction out of consideration for the convenience of parties and witnesses. In fact, plaintiffs argue that the Court need not reach the convenience analysis, because the foreign fora advocated by defendants are unavailable and inadequate.

DISCUSSION

I. Motion to Strike

In connection with the motion to dismiss as it pertains to the Costa Rican plaintiffs, defendants have offered the expert testimony of Diego Baudrit; plaintiffs have offered the expert testimony of Alejandro Garro.

Four days before the hearing on the Motion to Dismiss, defendants filed a Motion to Strike the expert testimony of Garro, on the grounds that he is not qualified to render expert testimony on the issue at hand, and further, that his testimony is not relevant or reliable, citing, inter alia, Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Plaintiffs take issue with both the timeliness and the substance of the motion. Pointing out that Garro's discovery deposition was taken six weeks prior to the perpetuation deposition taken for use at the hearing on the forum non conveniens motion, plaintiffs argue that the motion is the equivalent of a Daubert motion brought after trial testimony. The Court agrees with this assessment. Garro's qualifications, and indeed, the gist of his testimony, have been well-known to defendants for a long time. This Court's standing order requires Daubert motions to be filed in time to be heard 30 days prior to trial. Accordingly, defendants' motion filed shortly before the hearing and after his perpetuation deposition is untimely.

Further, even if it was timely, the Court finds the motion legally unfounded. The motion is premised on defendants' allegations that Garro's testimony does not comport with a variety of evidentiary rules, but strangely, does not even mention in passing Federal Rule of Civil Procedure 44.1, which governs the Court's determination of foreign law. That rule, which provides as follows, is largely determinative of the issue presented in defendants' motion to strike:

A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law.

Emphasis added.

Thus, under applicable law, the Court may consider evidence not technically admissible under the Federal Rules of Evidence, so long as it is relevant.

The only argument advanced by defendants that goes to the standard set forth in 44.1 is that Garro's testimony is not relevant because his opinions on the adequacy of foreign fora were formed with reference to his own definition of "adequate" as opposed to the Fifth Circuit definition. In this vein, defendants cite to testimony from Garro in which he concedes that his opinion as to adequacy is based on "basic standards" of "meaningfulness" applicable to "any court in the world."⁹ Reviewing Garro's testimony as a whole, it is clear that his "basic standards" analysis goes to the question of the fundamental fairness of the foreign courts, an inquiry which is encompassed in the Fifth Circuit and U.S. standards, as is borne out by defendants' articulation of the adequacy issue as "whether Costa Rica and Honduras will deprive plaintiffs of all remedies or treat them unfairly."¹⁰ Furthermore, to the extent Garro may have premised his opinions on standards not applicable to the Court, the Court has either disregarded such testimony or considered that in determining what weight to accord it.

Second, defendants' argument that Garro's testimony should be discarded because of his inappropriate adequacy standard overlooks the fact that the majority of his testimony addresses the issue of availability, and is based on his comparative analysis of the differences between civilian and common law systems. A review of Garro's credentials — which reveal that he is a law professor at Columbia University Law School teaching...