No decision in farmers’
suit against DuPont Co.

Chemical company wants
case dismissed under a state law

By Lyn Danninger
Star-Bulletin

Federal District Judge David Ezra yesterday declined to take any action on a lawsuit brought by two Big Island farmers against chemical giant DuPont Co. until the Hawaii Supreme Court settles a question raised by DuPont's attorneys.

Yesterday's ruling affects other farmers who have similar cases waiting to be heard both on Oahu and the Big Island.

Ezra was to hear two motions by DuPont to dismiss the case as well as the farmers' opposing motion.

The lawsuit and similar complaints filed by farmers against DuPont in 20 other states stem from a case involving a DuPont fungicide, Benlate DF. Because of a manufacturing defect, the fungicide wiped out crops and poisoned plants and soils during the late 1980s and early '90s.

Though many of the cases were settled, later cases in 1995 and 1996 initiated by farmers in Georgia and Hawaii brought to light evidence that DuPont had deliberately concealed and lied about critical test results showing Benlate had been contaminated with herbicides.

Farmers involved in those cases were awarded substantial judgments. DuPont was subsequently fined $112 million by the Georgia judge and in 1996, Big Island Circuit Court Judge Ronald Ibarra fined Dupont $1.5 million.

Since those findings and judgment awards, farmers who originally settled with DuPont for what they say was pennies on the dollar, have gone back to court.

The two farmers involved in yesterday's proceedings are state Sen. David Matsuura and his brother, Steven. Both men run orchid farms on the Big Island.

DuPont argued that the case should not go forward in federal court because of a Hawaii law relating to so-called litigation immunity.

The company contends that under the state law, it cannot be held responsible for what occurred in previous legal cases because any of its actions at that time were in the context of that litigation.

But the farmers' attorney, Steven Cox, contends the Hawaii law relates only to questions involving defamation.

"This is not a defamation matter," said Cox.

Cox said the case has dragged on for many years already and his clients are frustrated waiting for it to be settled.

Moving the case on to the Supreme Court would only prolong the matter further, he argued. Cox also said delay has been part of Dupont's strategy in all similar cases.

"Delay at all costs is Dupont's entire strategy," he said.

While acknowledging how long the matter could rest with the Hawaii Supreme Court, Ezra said he did not want to go forward with the case until the court looks at the matter.

"I don't want to go forward on my own when the Hawaii Supreme Court could entirely disagree," Ezra said. "It's a question of Hawaii law."