Big Isle farmers' suit against DuPont wins round at high court

Trial is set for this fall in a case involving the discontinued fungicide Benlate

HILO » The U.S. Supreme Court refused yesterday to consider DuPont Co.'s attempt to stop a lawsuit filed by six Hawaii plant growers who accuse the chemical company of racketeering.

"The bottom line for DuPont is that they're going to face a RICO (Racketeer Influenced and Corrupt Organizations Act) claim in Honolulu," said San Francisco attorney Stephen Cox, representing the six Hawaii nurserymen.

Trial is set for November before U.S. District Judge Susan Oki Mollway, said Hilo attorney Kris Laguire, working with Cox.

Beginning in the 1980s, reports surfaced on the mainland and in Europe that DuPont's fungicide Benlate, instead of protecting plants, damaged them.

Among those experiencing damage was Big Island nurseryman David Matsuura, a state senator in 1998-2002. In 1994, Matsuura received a settlement of $1 million, about a quarter of his actual loses, Laguire said.

But a Kona case in 1995 revealed that DuPont had known for years that Benlate damaged crops, and covered up the fact.

Saying they would have sought the full amount of their losses if they had known about the cover-up, Matsuura and five others sued DuPont in 1996, alleging fraud and RICO violations. DuPont tried to get the RICO charges thrown out, but the Supreme Court said yesterday that it would not even hear the request.

RICO is significant because the law calls for triple the amount of actual damages to be granted to the plaintiffs.

Laguire said DuPont also wanted the issue of whether there was a cover-up retried in the upcoming Honolulu proceedings, but based on the 1995 Kona case, Magistrate Judge Leslie Kobayashi ruled orally against that.

That means the fact that DuPont committed fraud is a given, Laguire said. "It's obstruction of justice, lying and cheating," he said. But Matsuura and other plaintiffs still have to prove that the fraud caused damage to them, he said.

Even if the Hawaii growers win, DuPont has given notice that the Supreme Court's refusal to hear DuPont's claim is not the final word.

"The Supreme Court ruled that, at this particular time, it would not use its discretion to hear one of the components of the case, deciding that it would not consider our appeal at this juncture," DuPont spokesman Anthony Farina said in a written statement. "The entire case now returns to trial at the U.S. District Court in Honolulu, where we are confident that we will be successful."

That means DuPont could drag out the case for more years, Laguire said. "Time is of no consequence to them," he said.

DuPont stopped making Benlate in 2001. It has paid out more than $1 billion in settlements and legal fees associated with the product.