High court fines DuPont
for hiding info

The state Supreme Court
also upholds a $23 million judgment
won by Big Isle growers in 1995

By Harold Morse
Star-Bulletin

The Hawaii Supreme Court yesterday upheld a $23 million judgment and a $1.5 million fine against DuPont and other companies.

In the 1995 judgment, jurors found that Big Island growers Kawamata Farms and Stanley and Cynthia Tomono, doing business as S.T.T. Farms, suffered crop loss and soil damage because of a pesticide produced, packaged and sold by the companies.

Attorney Peter V.N. Esser, who did the appellate work for the growers, called yesterday's decision a victory for the Hawaii County farmers.

"In product liability cases, the corporations making those products have all the information about how the products are made," he said. "In this case, the Hawaii Supreme Court said that if those companies are sued, they have to provide discovery (relevant information). The Big Island judge had found DuPont deficient in this regard and fined them $1.5 million payable to the state court system."

"But the message behind that affirmance was that corporations have to cooperate in civil litigation, and if they don't they will be subject to sanctions," Esser said.

Big Island Judge Ronald Ibarra came up with the $1.5 million fine, and the Big Island jury came up with the $23 million-plus settlement, he added.

Goodsill Anderson Quinn & Stifel, the Hawaii law firm representing DuPont, had no immediate comment on the Supreme Court ruling.

Four justices signed the majority opinion. Justice Mario Ramil agreed with most of the majority opinion but dissented on the farms' attorneys receiving fees for their discovery work. The judiciary rule used was the appropriate vehicle, Ramil said.

Attorneys Stanley Roehrig and Andrew Wilson earlier argued the case before the Big Island court for seven months.

"My reaction is that my clients and our staff are quite pleased that this part of the process is over with," Roehrig said.

Kawamata Farms -- growing ornamental flowers and the Tomonos growing tomatoes, cucumbers, orchids and other products -- initially filed court actions in 1991 and 1992 respectively.

They said their plants, soil and farm structures were damaged by the fungicides manufactured by DuPont.

They sued DuPont and related defendants on negligence, product liability and other grounds. The jury later found in favor of the farms and against DuPont and related defendants.

The Supreme Court ruling chastised DuPont, noting the lower court issued 54 discovery orders and 27 of these imposed sanctions for discovery violations.

"Five of the orders contained findings that DuPont had intentionally withheld material evidence," the Supreme Court said.

The crux of the farms' case was that a defect in Benlate, the fungicide, had injured their plants, soils and farm structures because it had been contaminated with atrazine and sulfonylureas, which are herbicides. "Because of these defects, the Benlate caused crop damage," the high court said.

The Supreme Court said the Big Island circuit court did not abuse its discretion and backed its awards. "We affirm the judgment and all of the circuit court's orders," the Supreme Court said.