Case 1:12-cv-00695-RGA-SRF Document 1 Filed 05/31/12 Page 1 of 63 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`CIVIL ACTION NO.:
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`JURY TRIAL DEMANDED
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`LUIS ANTONIO AGUILAR MARQUINEZ
`DANIEL SERRANO CHITO
`FEDERICO SALINAS JIMENEZ
`JACINTO MARTINEZ IBARRA
`GUZMAN CASTRO EPIFANO
`LUIS ALBERTO PESANTEZ REDROVAN
`HERIS GEOVANNY MALLA LOPEZ
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` Plaintiffs,
`vs.
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`
`DOLE FOOD COMPANY, INC.;
`DOLE FRESH FRUIT COMPANY;
`STANDARD FRUIT COMPANY;
`STANDARD FRUIT AND STEAMSHIP
`COMPANY;
`THE DOW CHEMICAL COMPANY;
`OCCIDENTAL CHEMICAL
`CORPORATION (individually and as
`successor to Occidental Chemical Company
`and Occidental Chemical Agricultural
`Products, Inc., Hooker Chemical and Plastics,
`Occidental Chemical Company of Texas and
`Best Fertilizer Company);
`AMVAC CHEMICAL CORPORATION;
`SHELL OIL COMPANY;
`CHIQUITA BRANDS INTERNATIONAL,
`INC; CHIQUITA BRANDS, L.L.C. as
`successor in interest to Maritrop Trading
`Corporation; CHIQUITA FRESH NORTH
`AMERICA, L.L.C. (individually and as
`successor in interest to United Fruit Sales
`Corporation and Chiquita Brands, Inc.); DEL
`MONTE FRESH PRODUCE, N.A., INC.,
`
`
` Defendants.
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`
`PLAINTIFFS’ ORIGINAL COMPLAINT
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`1
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` Plaintiffs named above and in the body of this Complaint file this Original Complaint
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`and allege as follows:
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`I.
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`PRELIMINARY STATEMENT
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`1.
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`Plaintiffs file this Original Complaint for personal injuries sustained as a result of
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`exposure to 1, 2, dibromo 3, chloropropane, commonly known as DBCP and referred to hereafter
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`as “DBCP”.
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`II.
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`JURISDICTION and VENUE
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`2.
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`This Court has jurisdiction to hear the claims in this Complaint based on diversity
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`of citizenship between Plaintiffs and Defendants and because each Plaintiff’s damages exceed
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`$75,000.00 exclusive of interest and costs.
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`3.
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`The Plaintiffs are foreign nationals from Costa Rica, Panama, or Ecuador. The
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`Defendants are United States corporations.
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`4.
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`Certain of the Defendants maintain facilities in the District of Delaware and
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`conduct business in the District. Defendants Shell Oil Company, Dow Chemical Company, Dole
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`Foods Company, Inc., Standard Fruit Company and Standard Fruit and Steamship Company are
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`incorporated in Delaware and were when the acts and/or omissions and/or other operative facts
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`occurred that gave rise to the Plaintiffs’ causes of action set forth below.
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`III. BACKGROUND
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`5.
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`Workers on banana-growing plantations in Costa Rica, Ecuador, and Panama,
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`among other countries, injected 1, 2, dibromo 3, chloropropane “DBCP” into the soil or sprayed
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`DBCP over the fields to protect against microscopic worms called nematodes that dwell in
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`cultivated soils. The laborers wore no gloves, protective covering, or respiratory equipment to
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`prevent skin absorption or inhalation of DBCP because no Defendant ever informed them that
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`they were in danger and because no Defendant provided protective clothing or equipment to
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`these workers, some of whom are Plaintiffs in this case.
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`6.
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`Moreover, the fumes and vapors from DBCP released during the application of
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`the chemical exposed everyone in the vicinity. Unknown to the workers as well as bystanders in
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`the vicinity of the fumes and vapors, each breath they took after workers mixed DBCP or
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`injected it into the ground or sprayed it over the banana fields became a health hazard. The
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`fumes and vapors released by the chemical remained trapped under the canopy created by the
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`large impermeable banana leaves which cut off almost all ventilation and drifted throughout the
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`banana plantation exposing anyone working in the vicinity. The banana leaves formed a
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`virtually impermeable ceiling in the fields that trapped humidity, moisture, and the fumes and
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`vapors from DBCP in the breathing zones of all those present under the banana leaf canopy
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`(think of fish steamed in a banana leaf – the banana leaf’s impermeable character traps the steam
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`and moisture that cooks the fish).
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`7.
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`In addition to inhaling the fumes and vapors released from the handling and
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`application of DBCP, workers who handled DBCP sustained exposure through their skin when
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`DBCP splashed on them in the course of filling their canisters, or when their injectors hit rocks
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`or other objects causing the injection of DBCP to spray into the air and onto their person. Many
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`workers absorbed so much DBCP each day that their urine would give off the smell of the
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`chemical at night.
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`Effects - Sterility
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`A.
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`Among other adverse health effects, the affected Plaintiffs suffer from various
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`8.
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`degrees of sterility. Their bodies produce little or no sperm and the sperm that is produced is
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`often deformed and/or inactive. Men whose testes produce no sperm are termed azoospermic;
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`3
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`men who produce fewer sperm than normal are oligospermic. Even a man with a normal sperm
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`count level may have slow moving, deformed, or stunted sperm as a result of DBCP exposure
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`that compromises his reproductive capacity and renders him effectively infertile.
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`B.
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`Effects – Cancer
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`9.
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`The United States Environmental Protection Agency (“EPA”) lists DBCP as a
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`probable human carcinogen and has done so since at least 1976. The National Cancer Institute
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`("NCI") lists DBCP as one of the most potent known carcinogens. NCI tests have demonstrated
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`that DBCP induces cancer in a wide range of organs and sites, generally at the lowest dose tested
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`and as a result is regarded as a multi-site carcinogen which means it is capable of causing cancer
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`in multiple locations and organs in the human body.
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`C.
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`Effects - Other Health Hazards
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`10.
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`DBCP has been linked to a variety of birth defects and is a suspected cause of
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`miscarriages in women who have sustained repeated exposures. Women working on plantations
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`who sustained exposure to DBCP or who attempted to conceive with a man who had been
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`exposed to DBCP have reported several consecutive miscarriages. Medical and scientific
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`research has revealed that in addition to causing sterility, DBCP can cause damage to the cornea
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`in exposed persons and can compromise a person’s renal system, respiration system, can cause
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`chronic skin disorders, as well as testicular atrophy, impotence, headaches, and chronic stomach
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`ailments.
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`D.
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`Effects – Environmental Harm
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`11.
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`Environmentally, DBCP is regarded as a highly persistent and mobile pesticide.
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`DBCP decomposes slowly in soil. Studies show that DBCP remains in soils for years and is able
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`to migrate through certain soils to groundwater. DBCP is chemically stable in water, even in
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`4
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`very small amounts, and persists in water for years. DBCP has also been reported as a low-level
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`air contaminant. DBCP has been widely found as a contaminant in ground and surface water in
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`California, Hawaii, and elsewhere in the United States and abroad. In California and Hawaii,
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`municipalities have recovered hundreds of millions of dollars from The Dow Chemical
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`Company, Shell Oil Company, Occidental Chemical Corporation, and AMVAC Chemical
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`Corporation, the principal manufacturers of DBCP, for the costs related to remediation of DBCP-
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`contaminated water supplies.
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`E.
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`Testing for Hazards – Dow and Shell’s Early Discoveries
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`12. What little pre-market toxicology research that was done on DBCP was
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`conducted in or around 1958 by Dow's company doctor, Dr. Ted Torkelson, and by Shell's
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`consultant, Dr. Charles Hine of the University of California Medical School in San Francisco. In
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`testing DBCP on rats, both labs found that DBCP caused retarded growth, organ damage,
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`shrunken testes, and sterility. In an April 1958 "confidential report," Dr. Hine, working for
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`Defendant Shell, wrote that "among the rats that died, the gross lesions were especially
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`prominent in lungs, kidneys, and testes. Testes were usually extremely atrophied." Emphasis
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`added. Dow's first in-house report came three months later, in July 1958, and concluded that
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`DBCP was "readily absorbed through the skin and high in toxicity in inhalation." Dow's data
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`also showed that "liver, lung and kidney effects might be expected" and that "testicular
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`atrophy may result from prolonged, repeated exposure. " Emphasis added.
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`13. When scientists working for Dow informed corporate decision makers of
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`evidence that DBCP caused a series of health problems, Dow intentionally played down the
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`health risks and resisted warning about DBCP’s dangers because of the negative effect Dow
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`believed it would have on sales of DBCP. DBCP was actually entered in the toxicology card
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`file in Dow's medical library. The toxicology card for Dow's flagship product, Fumazone,
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`initially noted eye and skin effects, and stated that testicular damage "may result from chronic
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`exposure to active material." Emphasis added. Liver and kidney damage were also discussed,
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`but the toxicology cards were soon altered to delete information on testicular damage. Dr.
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`Torkelson, Dow’s consultant, would later opine that, "the cards addressed singular exposures,
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`and you don't see testicular changes on single exposures. It was put on some of the cards
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`because whoever wrote it knew about it and thought it was important enough to put it on there
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`along with liver and kidney effects. When it was retested, the testes didn't show an affect from
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`a single exposure, and a new card was made out." Emphasis added.
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`F.
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`USDA Registration and Product Labeling
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`14.
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`In May 1961, Dr. Hine, who was now working jointly for Dow and Shell, drafted
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`a report in support of USDA registration of DBCP. Dr. Hine’s draft report called for work place
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`concentrations of DBCP to be kept under one part per million ("ppm") and recommended the use
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`of impermeable protective clothing if skin contact with DBCP was likely. Louis Lykken, who
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`was in charge of government registration of chemicals for Shell, dismissed the suggestion as
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`"impractical." Emphasis added. After concluding DBCP related animal studies, Hine made the
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`observation that repeated exposure could affect human reproduction, which was contained in the
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`draft report to the USDA. Lykken’s response: "Leave out speculation about possible harmful
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`conditions to man. This is not a treatise on safe use." Emphasis added
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`15.
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`In 1961, Shell officials discussed how to dilute the strength of precautionary
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`statements that Shell expected governmental regulatory authorities to require. The following are
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`excerpts from Shell’s internal memoranda:
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`August 21, 1961:
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`"We have discussed with Dr. Zavon USDA's precautionary labeling and the hazards associated
`with this pesticide chemical. He shares our opinion that USDA is being over cautious in their
`views on labeling products containing this pesticide chemical. It is the consensus that Dr. Zavon
`and a representative of Dow's toxicology group should meet with the USDA toxicology section
`representatives to settle this issue."
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`August 29, 1961:
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`"We have just received and reviewed the subject Technical Bulletin [and information brochure
`on Nemagon (Shell's flagship product)] and have some reservations with regard to the adequacy
`of the statements under safety precautions. In light of the fact that the threshold of odor
`detection has been reported at one point at seven parts per million and the lowest level studied
`[five parts per million] has demonstrated damage after repeated exposures, it appears the
`statement "there is a good margin of safety in handling" would be difficult to justify and
`might be prosecuted as negligent."
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`Emphasis added.
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`And then two months later, in November 9, 1961 Shell officials made the following
`observations:
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`"The pesticides regulations branch of the U. S. Department of Agriculture has expressed concern
`over the hazards associated with the use of Nemagon soil fumigant and proposed stringent
`labeling for the various formulations now being marketed. It is the consensus in the division
`office that the USDA is being overly cautious and the precautionary statements proposed could
`have an adverse effect on the sale of this product.”
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`Emphasis added.
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`G.
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`Central American Banana Plantation Trials
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`16.
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`Despite early and clear indications of adverse health effects, DBCP trials
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`nevertheless began on the Standard Fruit Company's Central American banana plantations in
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`approximately 1965. William Liebhard, who would go on to become a professor of agriculture
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`at the University of California-Davis, but at the time was a young scientist with Standard Fruit in
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`Honduras, recalled early DBCP trials:
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`In the DBCP trials, toxicological analyses were not undertaken on the potential
`effects of those chemicals on user's health or in the environment. . . . We did not
`consider such factors at all at that time frame.
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`7
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`17.
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`The Standard Fruit Company (now a subsidiary and the alter ego of Dole)
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`maintained its corporate headquarters in New Orleans. The United Fruit Company (now
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`Chiquita) also maintained corporate offices in New Orleans. Both of these two multi-national
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`banana growing concerns engaged with one or more of the Manufacturing Defendants—The
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`Dow Chemical Company, Shell Oil Company, Occidental Chemical Company, and the AMVAC
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`Chemical Corporation—to procure DBCP and distribute DBCP to their banana growing
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`operations in Costa Rica, Panama, and Ecuador.
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`18.
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`Throughout the banana plantations in Latin America owned, operated or
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`otherwise controlled by Dole, Del Monte, and Chiquita, warehouse workers and mixers, field
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`applicators, irrigation tower workers, and field hands had regular, heavy exposure to DBCP
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`through vapor inhalation and skin absorption. In addition, workers in the vicinity of the
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`application process as well as children visiting their parents in the fields to deliver coffee or
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`meals sustained substantial toxic exposure to DBCP that would have permanent effects.
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`19.
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` None of the banana plantation production manuals contained warnings of the
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`damaging testicular effects of DBCP or the adverse health effects from exposure and did not
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`advise of the need to use safety gear or provide reasons for persons in the zone of exposure to
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`take precautions. The labels on the DBCP containers certainly did not alert anyone, and field
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`workers invariably state that no warnings of the product's dangers were ever given.
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`20.
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`In fact, six months after the EPA suspended use of DBCP in the United States
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`because of the adverse health effects from exposure, a March 3, 1978 memorandum regarding
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`DBCP safe handling procedures authored by Dr. Jack Dement, the director of worldwide pest
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`control efforts for the Dole predecessor Castle & Cooke, Inc. actually directed Dole plantation
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`managers to ignore certain proposed guidelines for DBCP use. For example, Dr. Dement
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`directed his farm managers to ignore a guideline “not [to] apply DBCP unless the treated area
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`was a safe distance away from worker housing and work areas or unless all people had been
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`evacuated from those surrounding areas. “Referring to this guideline, Dr. Dement wrote, “This is
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`not operationally feasible and does not need to be implemented.” Dr. Dement's memorandum
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`went on to indicate that, “only personnel working at the DBCP pump, rather than applicators,
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`should be provided respiratory devices for the protection against DBCP vapors.” Emphasis
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`added.
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`H.
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`Banning and Exportation
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`21.
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`By 1976, the EPA had identified DBCP as a suspected carcinogen. In July 1977,
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`thirty-five of one hundred fourteen workers who manufactured DBCP at Occidental's Lathrop,
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`California plant were found to be sterile. Approximately one month later, in September 1977,
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`the EPA suspended DBCP from all but a few highly controlled uses in Hawaii, and only under
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`heavily restricted conditions with extensive protective equipment. Finally, in 1979 the EPA
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`canceled the registration for DBCP for all uses in the United States, exempting Hawaii pineapple
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`until 1985 when the EPA canceled the registration for pineapple as well. By then the large-scale
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`use of DBCP on agricultural operations in the United States had already led to extensive
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`groundwater contamination in Hawaii, California, and elsewhere. Even though the EPA
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`prohibited most uses of DBCP, there were still large stocks on hand and Dow, Occidental,
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`AMVAC, Shell, Dole, and Del Monte decided not to let it go to waste.
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`22.
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`The ban on manufacturing and using DBCP in the United States did not stop the
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`Defendants from exporting existing stocks of DBCP for use on pineapple and banana plantations
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`overseas, and some workers have reported using DBCP until at least 1985. In 1977, when Dow
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`informed Standard Fruit (now Dole) that it planned to halt sales of DBCP, Standard Fruit
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`responded by threatening legal action: "Your halt of shipping our outstanding orders is viewed
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`as a breach of contract." Emphasis added. Dow relented once Standard Fruit agreed to
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`indemnify Dow against claims for injuries resulting from DBCP use. This offers compelling
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`evidence that both Dow and Dole anticipated such injuries would occur and nevertheless
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`continued to sell and use DBCP with a conscious disregard for the consequences.
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`23.
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`AMVAC perceived a market opportunity and deliberately entered the Latin
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`American market to supply multi-national banana growers, including the Dole Defendants, after
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`the United States EPA severely limited the permissible uses for DBCP in 1977. AMVAC
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`described this business strategy in documents filed with the U.S. Securities and Exchange
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`Commission in 1978:
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`[AMVAC] Management believes that because of the extensive publicity and notoriety
`that has arisen over the sterility of workers and the suspected mutagenic (alterations in
`living cells) and carcinogenic nature of DBCP, the principal manufacturers and
`distributors of this product (Dow, Occidental and Shell) have temporarily, at least,
`decided to remove themselves from the domestic marketplace and possibly from the
`world marketplace….Notwithstanding all the publicity and notoriety surrounding DBCP
`it was [AMVAC] Chemical’s opinion that a vacuum existed in the marketplace that
`[AMVAC] Chemical could temporarily occupy providing [AMVAC] Chemical met all
`the requirements imposed by a variety of governmental bodies at various levels.
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` * * * * *
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`Beginning early January 1978, [AMVAC] Chemical began receiving a limited quantity of
`DBCP from a Mexican manufacturer. Subsequently a second foreign manufacturer also
`began supplying small quantities of product….The combined sales of DBCP along with
`other manufactured products continues to sustain [AMVAC] Chemical’s operations…An
`additional problem confronting [AMVAC] Chemical is product liability exposure.
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`See AMVAC Form 10k for the fiscal year ended December 31, 1977.
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`24.
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`In fact, Occidental and Shell did not exit the international market after all.
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`Occidental continued to sell DBCP in 1978 for use on banana plantations in the Plaintiffs’
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`countries, and a unit of Shell sold DBCP to Dole as late as 1981 for use on its banana plantations
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`in Africa.
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`25.
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`The controversy over DBCP use abroad after the EPA suspended its use even
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`became the focus of hearings in the United States Senate:
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`[I]ndustry studies. . . were kept secret from domestic chemical company
`employees and from agricultural workers using DBCP in the field. Now,
`tragically, twenty years later, the sterilization that had been predicted by
`laboratory tests became a reality - increasing numbers of workers in the
`manufacturing plants and banana fields found they could not have children. EPA
`finally banned DBCP from nearly all domestic farm uses, but the companies then
`dumped their unused stocks overseas where it continued to be used. As a result,
`more banana workers in Costa Rica were sterilized. The tale of DBCP is an
`appalling one.
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`Senator J. Leahy, Circle of Poison: Impact of U. S. Pesticides on Third World Workers,
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`Hearings before the Committee on Agriculture, Nutrition, and Forestry, 102 Cong., First Sess. 1
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`(June 5, 1991).
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`
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`26.
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`Once available stocks of DBCP began to be exhausted, Castle and Cooke,
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`Inc.(now Dole) entered into negotiations with Dow to arrange to set up a DBCP plant to be run
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`by Castle & Cooke, Inc. (now Dole) outside the United States. Dole also entered into contracts
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`to procure stocks of DBCP from both Occidental Chemical and AMVAC Chemical Corporation
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`at least as late as 1978 even though the U.S had already suspended DBCP use. Thus, despite all
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`the known hazards of DBCP and despite the extensive damage already done to those who had
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`sustained exposure to DBCP, Castle & Cooke (now Dole) continued to look for a way to
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`circumvent the ban on production of DBCP in the United States so it could continue to use it in
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`the developing countries where it operated around the world.
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`IV.
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`PARTIES
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`A.
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`Defendants
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`27.
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`In accordance with FRCP 10(c), Plaintiffs incorporate by reference section III.
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`Background as if fully set forth herein as well as all other previous paragraphs where applicable.
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`28.
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`Defendants The Dow Chemical Company, Shell Oil Company, Occidental
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`Chemical Corporation, and AMVAC Chemical Corporation (collectively referred to hereafter as
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`“the Manufacturing Defendants”), manufactured, sold, distributed, and otherwise placed into the
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`stream of commerce nematocides containing the chemical 1, 2, dibromo 3, chloropropane,
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`commonly known as DBCP, and upon information and belief, sold under the trade names
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`Fumazone by Dow, Nemagon by Shell, DBCP 12 by Occidental, and simply DBCP by AMVAC
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`as well as other more specific trade names.
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`29.
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`The Plaintiffs sustained exposure to the Manufacturing Defendants’ DBCP as set
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`forth below on or near banana plantations owned, operated, or otherwise controlled by the Dole
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`Food Company, Inc., Dole Fresh Fruit Company, Standard Fruit Company, and Standard Fruit
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`and Steamship Company (collectively referred to hereafter as “the Dole Defendants”) in Costa
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`Rica or Ecuador; by Chiquita Fresh North America, LLC (successor in interest to Chiquita
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`Brands, Inc.), Chiquita Brands International, Inc., and Maritrop Trading Corporation, upon
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`information and belief, now Chiquita Brands, LLC, and Chiriqui Land Company, the wholly
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`owned subsidiary and, upon information and belief, the alter ego of Chiquita Brands
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`International, Inc. Chiquita Brands, LLC and Chiquita Fresh North America (collectively
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`referred to hereafter as the “Chiquita Defendants”) in Costa Rica or Panama; or by Del Monte in
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`Costa Rica. The Dole Defendants, the Chiquita Defendants, and Del Monte are referred to
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`collectively as “the Grower Defendants.” The Plaintiffs’ exposure to DBCP manufactured by
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`one or more of the Manufacturing Defendants while present on or near a banana plantation
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`owned, operated, or otherwise controlled by one of the Grower Defendants was a proximate
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`cause of each of the Plaintiff’s injuries and illnesses alleged here and as more fully set forth
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`below.
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`1. Shell Oil Company
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`30.
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`Defendant Shell Oil Company (“Shell”) is a Delaware corporation with its
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`principal place of business in Texas, which, at all times pertinent herein, was authorized to do
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`and was doing business within the jurisdiction of this Honorable Court. Plaintiffs will request
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`Defendant Shell to waive service in accordance with Federal Rule of Civil Procedure 4(d).
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`31.
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`Shell manufactured DBCP under the trade name Nemagon and then sold and
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`distributed the product to Del Monte for use on banana plantations owned, operated or controlled
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`by Del Monte in Costa Rica, to the Dole Defendants for use on banana plantations owned,
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`operated, or controlled by the Dole Defendants in Costa Rica and Ecuador, and to the Chiquita
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`Defendants for use on banana plantations owned, operated, or controlled by the Chiquita
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`Defendants in Panama and Costa Rica.
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`32.
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`The use of DBCP as a nematocide was first suggested by researchers at the
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`Pineapple Research Institute (“PRI”), the research arm of the Pineapple Growers Association of
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`Hawaii. The Pineapple Research Institute (PRI) and the Pineapple Growers Association of
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`Hawaii (“PGAH”) were trade associations established principally by Dole and Del Monte, along
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`with a small number of other Hawaiian pineapple growers, but upon information and belief Dole
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`and Del Monte exercised control over the trade association. With the consent of its members, the
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`PRI assigned the patent for DBCP to both Dow and Shell for further development but retained a
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`royalty interest in the patent.
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`33. What little pre-market toxicology research that was done by Shell on DBCP was
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`conducted in or around 1958 by Shell's consultant, Dr. Charles Hine of the University of
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`California Medical School in San Francisco. In testing DBCP on rats, both labs found that
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`DBCP caused retarded growth, organ damage, shrunken testes, and sterility. In an April 1958
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`"confidential report," Dr. Hine, working for Defendant Shell, wrote that "among the rats that
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`died, the gross lesions were especially prominent in lungs, kidneys, and testes. Testes were
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`usually extremely atrophied. " Emphasis added.
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`34.
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`In May 1961, Dr. Hine, who was now working jointly for Dow and Shell, drafted
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`a report in support of USDA registration of DBCP. Dr. Hine’s draft report called for work place
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`concentrations of DBCP to be kept under one part per million ("ppm") and recommended the use
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`of impermeable protective clothing if skin contact with DBCP was likely. Louis Lykken, who
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`was in charge of government registration of chemicals for Shell, dismissed the suggestion as
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`"impractical." Emphasis added. After concluding animal studies, Hine included his observation
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`that repeated exposure could affect human reproduction in the draft report to the USDA. Lykken
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`made Shell’s interests clear: "Leave out speculation about possible harmful conditions to man.
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`This is not a treatise on safe use." Emphasis added.
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`35.
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`Although mentioned earlier in this complaint, the preceding and following
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`excerpts from Shell’s internal memoranda regarding the labeling and language of precautionary
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`statements for DBCP warrant inclusion here to substantiate specific allegations plead in support
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`Plaintiffs’ allegations of Shell’s liability.
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`36.
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`August 21, 1961: "We have discussed with Dr. Zavon USDA's precautionary
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`labeling and the hazards associated with this pesticide chemical. He shares our opinion that
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`USDA is being over cautious in their views on labeling products containing this pesticide
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`Case 1:12-cv-00695-RGA-SRF Document 1 Filed 05/31/12 Page 15 of 63 PageID #: 15
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`chemical. It is the consensus that Dr. Zavon and a representative of Dow's toxicology group
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`should meet with the USDA toxicology section representatives to settle this issue."
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`37.
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`Shortly thereafter, on August 29, 1961: "We have just received and reviewed the
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`subject technical bulletin [an information brochure on Nemagon (Shell's flagship product)] and
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`have some reservations with regard to the adequacy of the statements under safety
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`precautions. In light of the fact that the threshold of odor detection has been reported at one
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`point at seven parts per million and the lowest level studied [five parts per million] has
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`demonstrated damage after repeated exposures, it appears the statement "there is a good
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`margin of safety in handling" would be difficult to justify and might be prosecuted as
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`negligent." Emphasis added.
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`38.
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`Then on November 9, 1961: "The pesticides regulations branch of the U. S.
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`Department of Agriculture has expressed concern over the hazards associated with the use of
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`Nemagon soil fumigant and proposed stringent labeling for the various formulations now being
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`marketed. It is the consensus in the division office that the USDA is being overly cautious and
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`the precautionary statements proposed could have an adverse effect on the sale of this product.
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`Emphasis added.
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`39.
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`Shell’s conduct as set forth in part above constituted and reflects some of the
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`misstatements and/or omissions of material fact used by Shell to defraud and mislead regulatory
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`authorities, public health authorities, and others, including but not limited to end users such as
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`Plaintiffs, who were in a position to prevent the Plaintiffs from sustaining harmful exposure to
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`DBCP.
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`40.
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`Plaintiffs allege that Shell committed the acts and omissions above because it
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`feared precautionary statements that accurately represented the risks posed from exposure to
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`DBCP would adversely affect the sales of DBCP.
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`41.
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`The Plaintiffs relied on the lack of adequate precautionary statements on DBCP
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`containers and were therefore unaware of the risks to human health posed from repeated
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`exposure. The lack of adequate precautionary statements on Shell DBCP products was a
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`proximate cause of each Plaintiff’s injury who sustained exposure between 1965 through 1977 as
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`more fully set forth infra in section IV. B—Plaintiffs—and incorporated by reference as if fully
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`set forth here.
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`42.
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`The Plaintiffs also relied on the absence of adequate warnings in their native
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`language and the lack of effective safe use guidelines in their native language that Shell failed to
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`provide with its Nemagon product about the hazards to human health including, but not limited
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`to, the risk of sterility and damage to male sperm production. Shell’s acts in misleading
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`regulatory authorities, public health authorities, and Plaintiffs to believe that the risks from
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`exposure to DBCP were not as severe and imminent as Shell knew them to be were a proximate
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`cause of each Plaintiff’s DBCP related injury for Plaintiffs who sustained exposure to DBCP
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`between 1965 through 1977 as more fully set forth infra in section IV. B—Plaintiffs—and
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`incorporated by reference as if fully set forth here.
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`43.
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`Upon information and belief, from 1965 through at least 1971, Shell dominated
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`the DBCP market in Latin America and was the exclusive direct supplier of DBCP to each of
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`the Grower Defendants for their operations in Costa Rica, Panama, and Ecuador up through
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`1971.
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`44.
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`Plaintiffs further allege, upon information and belief, that from 1971 through
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`1977 Shell continued to sell DBCP to distributors in Costa Rica, Ecuador, and Panama who in
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`turn sold it to banana plantation managers for use on plantations owned, operated, or otherwise
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`controlled by the Dole Defendants in Costa Rica and Ecuador, the Chiquita Defendants in Costa
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`Rica and Panama, and Del Monte in Costa Rica where Plaintiffs sustained exposure to DBCP
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`while on or near those plantations. As a result of Shell’s acts in manufacturing, marketing,
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`distributing, and otherwise placing DBCP into the stream of commerce, Plaintiffs sustained
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`exposure to Shell’s Nemagon DBCP between 1965-1977, inclusive, that was a proximate cause
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`of the injuries and il