ASSOCIATED PRESS / FEBRUARY 2001
The Gilley family says they lost all the strawberry fields after spraying the DuPont fungicide benlate from Dupont at their farm in Dade City, Fla. Jerry Gilley drives his tractor over fields once filled with strawberries.
Hawaii farmers can take DuPont to trial
HILO » A federal appeals court has ordered a trial for claims by several Hawaii ornamental plant growers who say their plants were severely damaged by the DuPont fungicide Benlate.
The farmers and nurserymen, who include former state Sen. David Matsuura, say they lost millions of dollars to the product, which was supposed to protect crops but was later found to harm them.
On Monday, the federal Ninth Circuit Court of Appeals overturned a lower federal court decision that had granted summary judgment to E.I. du Pont de Nemours Co., meaning DuPont had won the case at that point without a trial.
The Ninth Circuit decision said U.S. District Judge Manuel L. Real, on temporary assignment in Honolulu, made numerous errors when he granted summary judgment last year.
The Ninth Circuit ruling said it does not question Real's impartiality, but it nevertheless ordered that a different judge be selected when the case goes to trial.
Hilo attorney Kris Laguire, one of a team of attorneys representing clients in five case that were consolidated into one, said nurserymen in the cases settled for a total of $10 million in 1994. The money was distributed among the plaintiffs, with David Matsuura receiving $1 million, and his brother Stephen, who owned a separate nursery business, receiving $500,000.
That was before the trial of a separate suit by Big Island nurserymen Stanley Tomono and Raymond Kawamata that disclosed that DuPont knew that Benlate damaged crops but hid the fact from farmers in settlements across the country.
In 1995, a Kona jury awarded Tomono and Kawamata $23.8 million in damages, and Judge Ronald Ibarra fined DuPont $1.5 million for fraudulently hiding its knowledge of damage.
The Matsuura brothers and others had accepted settlements that paid them only about one quarter of the value of their financial losses, Laguire said. Learning that fraud was involved, they sued again for the full value.
But several legal questions stood in the way. Could they legally file suit if they already took a settlement? Although the case was in federal court, Hawaii law applied. In 2003, the Hawaii Supreme Court answered yes, the nurserymen could still file suit because of the fraud involved in DuPont hiding information.
Another question was whether DuPont could be sued for violating the federal Racketeer Influenced and Corrupt Organizations (RICO) Act, which could bring triple the amount of actual damages if the nurserymen won.
Visiting Federal Judge Real answered no, because DuPont's organizational structure didn't fit the definitions in the RICO Act. But in its ruling Monday, the Ninth Circuit said Real was wrong.
DuPont is represented in Hawaii by former state Attorney General Warren Price. He referred questions to DuPont's corporate spokesperson, who was not immediately available for comment.