Dole Fresh Fruit Company attorney Rick McKnight estimates that as many as 10,000 pesticide claims are pending worldwide for nearly US$35 billion. - AP

A California judge has thrown out US$2.5 million of 'punitive' damages awarded against Dole Food Company in the Tellez case last year, saying it was excessive and a violation of the company's constitutional rights.

Now instead of the near US$4.1 million awarded by a lower court, Dole's liability to five Latin American farm workers made ill by chemicals used to grow its bananas is US$1.58 million.

Appeals are pending.

Judge Victoria Gerrard Chaney of the Los Angeles Superior Court found in March that "any punitive damages awarded would be so arbitrary as to be grossly excessive, and thus violative of the Due Process Clause of the Fourteenth Amendment of the United States Constitution".

The 14th amendment deals with immunities and guaranteed privileges of citizenship.

The farmhands said they were made sterile by a pesticide Dole used in Nicaraguan banana plantations in the 1970s.

The case marked the first time a US jury heard a lawsuit involving sterility and the pesticide known as DBCP.

The lawsuit claimed Dole continued to use the pesticide long after its dangers were known and the company did not warn workers of the potential harm from exposure.

DBCP is now banned worldwide.

If Chaney's March ruling is upheld on appeal, it could preclude punitive damages in future against Dole and other similar lawsuits.

Chaney wrote in her decision that punitive damages cannot be used to punish "a domestic corporation for injuries that occurred only in a foreign country."

Punitive damages

A jury in November 2007 awarded the US$2.5 million punitive damages to the farm workers in addition to US$1.58 million compensatory damages.

The five complainants will split the US$1.58 million.

"We always have maintained that punitive damages are inappropriate in these cases and would violate fundamental constitutional principles," said C. Michael Carter, Dole's executive vice-president and general counsel in a company issued release.

"The rationale of Judge Chaney's ruling clearly appears to preclude the award of punitive damages against Dole in any of the other cases pending in California, regardless of whether the plaintiffs are from Nicaragua or any other foreign country."

Rick McKnight, attorney for Westlake Village-based Dole, estimated that as many as 10,000 pesticide claims are pending worldwide for nearly US$35 billion, the Associated Press reported.

"These cases will dry up, and they should," McKnight said.

Meanwhile, plaintiff's attorney Duane C. Miller said he will appeal Judge Chaney's ruling, but it will be quite a while - and many motions - before the case goes to trial again.

Carter says Dole has set up a programme for compensating hundreds of Honduran workers with similar claims and is trying to do the same thing in Nicaragua.

business@gleanerjm.com