Osorio v. Dole Food Co.

Decision Date20 October 2009
Docket NumberCase No.: 07-22693-CIV.
Citation665 F.Supp.2d 1307
PartiesMiguel Angel Sanchez OSORIO, et al., Plaintiffs, v. DOLE FOOD COMPANY, et al., Defendants.
CourtU.S. District Court — Southern District of Florida

Aaron Samuel Podhurst, Ramon Alvaro Rasco, Ricardo M. Martinez-CID, Steven Craig Marks, Carolina Maharbiz, Joel Douglas Eaton, Podhurst Orseck Josefsberg et. al., Miami, FL, Joe J. Fisher, II, Provost Umphrey Law Firm LLP, Mark Sparks, Beaumont, TX, for Plaintiffs.

Theodore J. Boutrous, Jr., Andrea E. Neuman, William E. Thomson, Gibson, Dunn & Crutcher LLP, Los Angeles, CA, for Defendant.


PAUL C. HUCK, District Judge.

This is an action to enforce a $97 million Nicaraguan judgment under the Florida Uniform Out-of-country Foreign Money-Judgments Recognition Act (Florida Recognition Act). FLA. STAT. §§ 55.601-55.607 (2009). Plaintiffs are 150 Nicaraguan citizens alleged to have worked on banana plantations in Nicaragua between 1970 and 1982, during which time they were exposed to the chemical compound dibromochloropropane (DBCP). DBCP is an agricultural pesticide that was banned in the United States after it was linked to sterility in factory workers in 1977. Nicaragua banned DBCP in 1993. Defendants are Dole Food Company and The Dow Chemical Company, both Delaware corporations.1 Dow manufactured DBCP from 1957 until 1977, and Dole used DBCP on its banana farms in Nicaragua until the farms were expropriated by the Sandinista regime that came to power in 1979.

The judgment in this case was rendered by a trial court in Chinandega, Nicaragua. The trial court awarded Plaintiffs approximately $97 million under "Special Law 364," enacted by the Nicaraguan legislature in 2000 specifically to handle DBCP claims. The average award was approximately $647,000 per plaintiff. According to the Nicaraguan trial court, these sums were awarded to compensate Plaintiffs for DBCP-induced infertility and its accompanying adverse psychological effects. Defendants have appealed the judgment to an intermediate appellate court in Nicaragua. That appeal is still pending.

Defendants raise several objections to domesticating the judgment. They contend that under the Florida Recognition Act this Court cannot enforce the judgment because (1) the Nicaraguan trial court lacked personal and/or subject matter jurisdiction under Special Law 364,2 (2) the judgment was rendered under a system which does not provide procedures compatible with due process of law, (3) enforcing the judgment would violate Florida public policy, and (4) the judgment was rendered under a judicial system that lacks impartial tribunals.3 For the reasons set forth below, the Court holds that Defendants have clearly established their entitlement to non-recognition on each of these independent grounds.

1. Overview of DBCP Litigation

This is not the first DBCP case brought in the United States. The first DBCP lawsuits were brought in the mid-1990s, when thousands of plaintiffs from over 23 different countries filed DBCP suits in Texas against various defendants. Those cases were consolidated and the defendants, who included Dole and Dow, won dismissal on forum non conveniens grounds after arguing that the plaintiffs' various home countries provided adequate alternative forums. See Delgado v. Shell Oil Co., 890 F.Supp. 1324, 1362 (S.D.Tex. 1995) (finding that Nicaragua provided adequate remedies for Nicaraguan plaintiffs). None of the plaintiffs in Delgado are plaintiffs in this action.

In response to Delgado, which resulted in plaintiffs filing numerous DBCP claims in Nicaragua, the Nicaraguan National Assembly passed the "Special Law for the Conduct of Lawsuits Filed By Persons Affected By the Use of Pesticides Manufactured with a DBCP Base," commonly referred to as "Special Law 364." Since the passage of Special Law 364 in October 2000, over 10,000 plaintiffs have filed approximately 200 DBCP lawsuits in Nicaragua, most of which are still pending. To date, however, Nicaraguan courts have awarded over $2 billion in judgments, including the $97 million judgment that is the subject of this case. In a sister case tried after this one, Herrera Ríos v. Standard Fruit Co., the same trial judge awarded 1248 plaintiffs over $800 million, an average recovery of approximately $648,000 per plaintiff.

Nicaraguan claimants have made one previous attempt to enforce a DBCP judgment in the United States. In 2003, more than 450 Nicaraguan plaintiffs attempted to enforce a $489 million judgment in California, but their complaint was dismissed on technical and jurisdictional grounds without reaching the merits of the defendants' substantive objections. See Franco v. Dow Chemical Co., No. CV 03-5094 NM (PJWx), slip op. at 7-16, 2003 WL 24288299 (C.D.Cal. Oct. 21, 2003). In a related action, Shell Oil Company obtained a declaratory judgment that it was not subject to personal jurisdiction in the original Nicaraguan lawsuit, which is a requirement for recognizing a judgment under the Uniform Foreign Money-Judgments Recognition Act. See Shell Oil Co. v. Franco, No. CV 03-8846 (PJWx), 2005 WL 6184247 (C.D.Cal. Nov. 10, 2005).

In an effort to head off multiple enforcement actions in the United States, some DBCP defendants, including Dow, sought declaratory relief in federal court in California against plaintiffs who obtained judgments in Nicaragua but had not yet sought enforcement in the United States. In Dow Chemical Co. v. Calderon, 422 F.3d 827 (9th Cir.2005), the DBCP defendants asked the Ninth Circuit Court of Appeals to hold that the judgments obtained in Nicaragua could not be enforced in the United States on due process grounds similar to those raised in this case. The Ninth Circuit did not reach defendants' due process arguments, however, because it found that the Nicaraguans were not subject to personal jurisdiction in the United States and therefore the DBCP defendants could not sue the Nicaraguan plaintiffs in federal district court. Accordingly, the Ninth Circuit affirmed the district court's dismissal of the action without reaching the merits of whether Nicaraguan judgments obtained under Special Law 364 are enforceable in the United States.

In addition to the Special Law 364 litigation in Nicaragua, a few Nicaraguan plaintiffs have brought DBCP suits in the United States in recent years. In Tellez v. Dole Food Co., brought by 12 Nicaraguan plaintiffs and tried in 2007 in Los Angeles Superior Court, a jury awarded six plaintiffs over five million dollars and found that the defendants were not liable to the remaining plaintiffs. See Tellez v. Dole Food Co., Los Angeles Superior Court Case No. BC312852 (Nov. 5, 2007) (special verdict form).

Shortly after the verdict in Tellez, Dole alleged to the California trial court that some of the Tellez plaintiffs never worked on a banana farm, perjured themselves during the trial, and presented false documents as evidence. At the time, two other DBCP lawsuits, Mejia v. Dole Food Co. and Rivera v. Dole Food Co., were pending before the same California court, and Dole's fraud allegations implicated the Mejia and Rivera plaintiffs as well. To determine the veracity of Dole's fraud allegations, the court established procedures for gathering and presenting evidence from Nicaragua, and to ensure the safety of Nicaraguan witnesses, entered a protective order that permitted the defendants to take dozens of anonymous "John Doe" depositions to investigate the fraud claims.

After an evidentiary hearing, the California trial court concluded that the DBCP claims before it were the direct result of a widespread conspiracy to commit fraud by attorneys in Nicaragua and the United States, Nicaraguan doctors and judges (including the Nicaraguan trial judge who issued the judgment in this case), and the plaintiffs themselves. As a result, the California court dismissed with prejudice the fraud-tainted claims in Mejia and Rivera. See Mejia v. Dole Food Co. & Rivera v. Dole Food Co., Los Angeles Superior Court Case Nos. BC340049, BC379820 (June 17, 2009) (order terminating two DBCP lawsuits for fraud on the court). A California appellate court recently remanded Tellez, with instructions that the trial court may vacate the judgment in light of the fraud findings in Mejia and Rivera. See Dole Food Co. v. Tellez, Los Angeles Superior Court Case No. B216182, B216264 (July 7, 2009) (order to show cause).

The DBCP claims of over 5,000 plaintiffs from various countries in Central America and Africa are currently pending in California Superior Court in Los Angeles. The plaintiffs in Herrera Ríos, Osorio's sister action in Nicaragua, have not yet attempted to enforce their $800 million judgment in the United States. This Court now turns to the background issues relevant to determine whether the Nicaraguan judgment at issue in this case may be enforced under the Florida Recognition Act.

2. Special Law 364

At the heart of this case lies Special Law 364. Despite the availability of an agreed upon English translation, the parties contest the import of practically every clause in this law.4 Their disagreements focus on whether Special Law 364's provisions can be waived, whether they were applied in this case, and whether they are consistent with due process and public policy. Special Law 364 is unique in that its provisions apply only to DBCP litigation, and only against specific defendants such as Dole and Dow. Nicaragua has no comparable law that only applies to a specific type of litigation and a narrowly defined class of defendants.

Special Law 364's stated purpose is to regulate procedures for DBCP lawsuits "with regard to compensation" of persons injured by the pesticide. Article 1. To accomplish this goal, the law contains some notable provisions which to a great extent are the crux of this litigation....

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