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Nicaragua

People v. Dole

By Susanna Bohme - Boston Review, July 14, 2014

Disclaimer: The views expressed here are not the official position of the IWW (or even the IWW’s EUC) and do not necessarily represent the views of anyone but the author’s.

It was easy to find Antonio Hernández Ordeñana’s office in Chinandega, Nicaragua. Although the city is Nicaragua’s fourth largest, Hernández is well known, and the locals had no problem pointing the way. 

When I visited in 2006, the building looked newly painted in a bright green, with large letters on the front declaring, “Legal Offices for Banana Workers.” Twenty or thirty men waited in a lobby just as hot as the day outside. The men, most of them in their sixties, no longer labored in the fields—the banana industry had faded decades before. They had come to Hernández for reasons documented in scores of newspaper clippings tacked to the waiting room wall. Headlines announced the meetings, protests, and legal struggles of los afectados—former banana workers made sterile by exposure to the pesticide dibromochloropropane, also known as DBCP, Fumazone, or Nemagon.

Beyond the lobby, offices and storerooms were arranged around a leafy central courtyard. Hernández took me to a room crammed with files, where he explained the strategy he and Los Angeles–based attorney Juan José Domínguez were pursuing. Like a handful of other Nicaraguan and U.S. firms, theirs were filing cases against fruit and chemical companies in both countries in hopes of securing compensation for banana workers exposed in the 1970s and early ’80s, when DBCP was widely used to control soil-dwelling nematodes that fed on the roots of banana plants. Along with volumes of paper, the offices held objects that spoke to the pesticide’s history and legacy. One, a metal barrel, dull and rusty with age, bore Dow Chemical’s diamond-shaped logo and its Fumazone brand name. The label included no warning of serious health effects, and, in any case, was in English, which wasn’t much use to the rural laborers who dispensed its contents. Across the courtyard was a modest laboratory, used by a visiting technician to measure sperm counts. Warning me not to be shocked, Hernández brought me to the threshold of a small room adjacent to the lab. I could see through the doorway that the walls were hung with soft-core porn. This is where would-be plaintiffs were sent to provide semen samples. 

One of Hernández’s most controversial cases—originally known as Tellez—has travelled a roller coaster route between his offices and the doorstep of the California Supreme Court in San Francisco, more than 3,000 miles northwest of Chinandega. What seemed the height of victory for plaintiffs—a 2007 Los Angeles jury verdict in favor of six Nicaraguans—was transformed into defeat when that decision was reversed by Judge Victoria Chaney in 2010. The case—now in the hands of California appellate lawyer Steve Condie—ground to a halt this spring when the California Supreme Court refused a petition to review Chaney’s reversal.

Tellez is only the latest chapter in decades of tumultuous transnational DBCP litigation. The first Central American DBCP plaintiffs filed in Florida in 1983. Then, tort lawyers representing banana workers had every reason to be hopeful: after U.S. chemical production workers had conclusively linked their sterility to DBCP in 1977, they won up to $2 million each in their own lawsuits. Plaintiffs also had a nice assortment of “smoking gun” documents, including toxicological evidence of testicular effects dating to 1956 and an agreement between Dow and Dole to continue DBCP sales to banana plantations after DBCP was undisputedly understood to cause human sterility. Perhaps most damning, one 1978 Dole memo gave instructions to ignore safety precautions because they were “not operationally feasible.”

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