Legal Complaint of Ecuador Banana Workers

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1--: U:. . LESLIE S. FuKUMOTO,

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LESLIE S. FUKUMOTO, #2708 Suite 1711, Davies Pacific Center 841 Bishop Street Honolulu, HI 96813 Telephone No. (808) 537-4541

Attorney for Plaintiffs

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

FOR THE STATE OF HAW API

1 C -1 l -; ~. -0 6 LEOPOLDO MAURICIO QUEZADA ) CIVIL NO. _________ P W P VITONERA; ROBERTO WILLIAM ) (PRODUCT LIABILITY) BARONA BENITEZ; ODILO CASTRO ) LOPEZ; MANUEL JOSE PORRAS ) ALVAREZ; MAURO GREGORIO ) ZERDA GUERRA; JUAN CRISTOBAL ) COMPLAINT; SUMMONS ENRIQUEZ )

) Plaintiffs, )

) vs. )

) THE DOW CHEMICAL COMPANY; ) SHELL OIL COMPANY; OCCIDENTAL ) CHEMICAL CORPORATION ) (individually and as successor to ) Occidental Chemical Company and ) Occidental Chemical Agricultural ) Products, Inc., Hooker Chemical and ) Plastics, Occidental Chemical Company of ) Texas and Best Fertilizer Company); ) AMV AC CHEMICAL CORPORATION; ) DOLE :FOOD COMPANY, INC.; ) DOLE fRESH FRUIT COMPANY; ) ST ANDARD FRUIT COMPANY; ) ST ANDARD FRUIT AND STEAMSHIP ) COMPANY; DEL MONTE FRESH ) PRODUCE, N.A., INC; DEL MONTE ) FRESH PRODUCE (HAWAIl) INC; ) PINEAPPLE GROWERS )

ASSOCIATION OF HAWAII; ) JOHN DOES 1-10; JANE DOES 1-10; ) DOE PARTNERSHIPS 1-10; and DOE ) CORPORATIONS 1-10, )

) Defendants. )

COMPI~AINT

Plaintiffs above-named, by and through their attorney, Leslie S. Fukumoto, hereby file

this Complaint against the Defendants, above-named, Plaintiffs intend to request entry, Pro Hac

Vice of the law firm HENDLERLAW, P.C., of 816 Congress Ave., Suite 1670, Austin, Texas

78701, Telephone No. (512) 439-3202, and allege and aver as follows:

I. PRELIMINARY STATEMENT

1. Plaintiffs are citizens of the country of Ecuador. The Plaintiffs have had their health,

welfare, and lives damaged as a result of exposure to an extremely hazardous chemical pesticide,

dibromochloropropane ("DBCP"), made and distributed by some of the Defendants and

distributed and used by other Defendants, or at their discretion, on lands where the Plaintiffs

were exposed.

2. Plaintiffs bring this civil action to recover compensation for damages to their health,

welfare, and lives that resulted from the injuries caused by the Defendants.

II. JURISDICTION

3. This Court has subject matter jurisdiction to hear the claims in this Complaint pursuant to

Haw. Rev. Stat. § 603-21.5, personal jurisdiction over the Defendants pursuant to Haw. Rev.

Stat. § 634-35 and venue over the claims in this Complaint pursuant to Haw. Rev .. Stat. § 603-36.

Venue is proper in this Circuit as the majority of the parties in related litigation has so agreed.

III. PARTIES

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4. Plaintiffs LEOPOLDO MAURICIO QUEZADA VITONERA, ROBERTO WILLIAM

BARO~'JA BENITEZ, ODILO CASTRO LOPEZ, MANUEL JOSE PORRAS ALVAREZ,

MAURO GREGORIO ZERDA GUERRA, JUAN CRISTOBAL ENRIQUEZ are reside:nts of

Ecuador and were exposed to and injured by the chemical pesticide, dibromochloropropane

(DBCP).

5. Defendant The Dow Chemical Company is a Delaware corporation with its principal

place of business in Michigan, and which, at all times pertinent herein, was authorized to do and

was doing business within the jurisdiction of this Honorable Court.

6. Defendant Shell Oil Company is a Delaware corporation with its principal place of

business in Texas, which, at all times pertinent herein, was authorized to do and was doing

business within the jurisdiction of this Honorable Court.

7. Defendant Occidental Chemical Corporation is a New York corporation with its principal

place of business in Texas, which, at all times pertinent herein, was authorized to do and was

doing business within the jurisdiction of this Honorable Court.

8. Defendant Amvac Chemical Corporation is a California corporation with its principal

place of business in California, which, at all times pertinent herein, was authorized to do and was


9. Defendant Dole Food Company, Inc. was a Hawaii corporation at the time of the events

giving rise to this case. At all times pertinent herein, Dole Food Company, Inc was authorized to

do and was doing business within the jurisdiction of this Honorable Court. Dole Food Company,

Inc. is the ultimate parent corporation of Standard Fruit Company, Standard Fruit and Steanlship

Company, and Dole Fresh Fruit Company. These subsidiaries are so integrated and controlled

by Dole Food Company, Inc. that they are the alter ego of Dole Food Company, Inc. The

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Plaintiffs are suing these Defendants for the tortious activities perfonned at the behest and under

the diredion of their alter ego Dole Food Co., Inc and its predecessors in interest. 1bese

Defendants are referred to collectively as "The Dole Defendants.'l

10. Defendant Dole Fresh Fruit Company is a Nevada corporation with its principal place of

business in California, which, at all times pertinent herein, was authorized to do and was doing


11. Defendant Standard Fruit and Steamship Company is a Delaware corporation with its

principal place of business in California, which, at all times pertinent herein, was authorized to

do and was doing business within the jurisdiction of this Honorable Court.

12. Defendant Standard Fruit Company is a Delaware corporation, with its pJincipal place of

business in Ecuador, which, at all times pertinent herein, was authorized to do and was doing


13. Defendant Del Monte Fresh Produce, N.A. is a Florida corporation with its principal

place of business in Florida, which, at all times pertinent herein, was authorized to do and was


14. Defendant Del Monte Fresh Produce (Hawaii) Inc., is a Delaware corporation with its

principal place of business in Hawaii, which, at all times pertinent herein, was authorized to do

and was doing business within the jurisdiction of this Honorable Court.

15. Defendant Pineapple Growers Association of Hawaii is a California corporation with its

principal place of business in Hawaii. Pineapple Growers Association of Hawaii, at all times

pertinent herein, was authorized to do and was doing business within the jurisdiction of this

Honorable Court.

16. Defendants The Dow Chemical Company, Occidental Chemical Corporation, Shell Oil

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Company, Amvac Chemical Corporation, Standard Fruit Company, Standard Fruit and

Steamship Company, Dole Food Company, Inc, and Dole Fresh Fruit Company, Del Monte

Fresh Produce, N.A., and Del Monte Fresh Produce (Hawaii) Inc. and their subsidiaries and/or

affiliates, manufactured, sold, distributed, or used nematocides containing the chemical

dibromochloropropane, commonly known as DBCP.

17. John Does 1-10, Jane Does 1-10, Doe Partnerships 1-10, and Doe Corporations 1-10

("Doe Defendants") are sued under fictitious names because their names and identities are

presently unknown to the Plaintiffs, except that they are persons and/or entities who are in the

same manner presently unknown to the Plaintiffs and who engaged in the activities alleged

herein; and/or are in some manner responsible for the injuries and damages to the Plaintiffs;

and/or are persons who conducted some activity in a negligent, and/or willful manner who failed

to fulfill a duty or obligation, whose conduct or omission to act was a proximate cause of the

injuries or damages to the Plaintiffs; and/or were in some manner related to the previously

named Defendants engaged in the activities alleged herein. Plaintiffs ask to insert their true

names and capacities, activities and/or responsibilities, whether individual or corporate, when

their names are ascertained.

18. The Plaintiffs allege that they were exposed to this toxic product manufactured,

distributed, and/or used by Defendants from 1960 and thereafter, and as a result, have suffered

serious and permanent injuries including, but not limited to, severe injury to their reproductive

capacities.

19. The Plaintiffs claim damages that exceed the minimal jurisdictional amount required by

this Court.

IV. BACKGROUND

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20. Defendants manufactured, distributed, or used DBCP from approximately 1960 and

thereafter. Some of the defendants were involved in the development and manufacturing of

DBep including Dow, Shell, the PGAH, Occidental and AMY AC. Dow and Shell, with the

direction and involvement of the PGAH and its Hawaiian based research arm, the Pineapple

Research Institute (PRI), tested and developed DBep, eventually becoming co-owners of the

DBCP patents. The manufacturers and the PGAH marketed it first to the pineapple industry and

then to commercial fruit growers generally and the banana industry in particular for use in

Plaintiffs' countries. The PGAH also engineered and developed the delivery systems used to

apply DBep including injectors and the boom spray, both specifically used to apply DBep in

ways that proved unreasonably dangerous and reckless, resulting in substantial exposure from

overspray, spillage and splashing, and the concentration of vapors under the canopies formed by

the banana leaves, all of which was a substantial factor in causing Plaintiffs exposure, injuries

and damages. Plaintiffs used DBep application devices and systems to apply DBep into the soil

to protect against microscopic worms called nematodes that dwell in cultivated soils.

21. Unknown to the plaintiffs, each breath taken during the daily hours of mixing and using

DBep became a health hazard, whether they handled the chemical directly or worked in the

general vicinity of others handling DBep. The fumes released by the chemical remained trapped

within the banana canopy created by the oversized banana leaves, which cut off almost all

ventilation. Workers were also exposed through their skin when DBep splashed on them in the

course of refilling their canisters, when their injectors hit rocks or other objects, or the spray

booms showered them in the chemical. Many workers absorbed so much DBep each day that

their urine would give off the smell of the chemical at night. And DBep often leeched into

ground water supplies contaminating the drinking water ingested by workers, including

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Plaintiffs, compounding exposure. In addition to drinking contaminated water, chemical residue

contaminated food the Plaintiffs ate, clothing Plaintiffs wore and soil Plaintiffs worked in.

A. Sterility

22. Workers affected by DBCP suffer from sterility, one signature effect of DBCP exposure.

DBCP decreases the quantity of sperm, causing men to be azoospermic (no sperm) or

oligospermic (abnormally low sperm count). DBCP also affects the motility and formation of

sperm, causing production of sperm that is slow moving and/or deformed, thereby further

decreasing fertility and, where insemination occurs, diminishing the viability of offspring. As a

result, men adversely affected by DBCP are significantly less likely to father a healthy, normal

child .

.8. Cancer

23. The National Cancer Institute ("NCI") lists DBCP as one of the most potent known

carcinogens. NCI tests demonstrate that DBCP induces cancer in a wide range of organs and

sites, generally at the lowest doses tested. Studies of the exposed workers have demonstrated

excess cancer rates and there is no safe threshold for exposure.

C. Birth Defects

24. DBCP has been associated with a variety of birth defects, and is a suspected cause of

miscarriages in exposed women. Women working on banana plantations in various countries

have reported multiple consecutive miscarriages.

D. Kidney and Liver

25. The United States EPA has found that DBCP potentially causes acute damage to kidneys

and the liver, and that long-term exposure to DBCP potentially causes permanent damage to

kidneys.

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E. Other Harmful Health Effects

26. Studies have revealed DBCP's hannful effects upon the health of other bodily systems.

DBCP is a serious irritant to eyes, skin and sinuses, and to gastro-intestinal and respiratory

systems, and has been found to be a central nervous system depressant. The effects upon these

systems can be pennanent as well as acute, depending on the level, frequency and length of

exposure.

F. Environmental Harm

27. Environmentally, DBCP is regarded as a highly persistent and mobile pesticide. DBCP

decomposes slowly in moist soil with studies showing DBCP may remain in soils for years and it

is able to migrate through certain soils. DBCP has been widely found as a contaminant in

ground and surface water in Hawaii, California and elsewhere in the United States and abroad. It

is highly chemically stable in water, even in very small amounts. It has also been reported as a

low level air contaminate. In California, municipalities have recovered hundreds of millions of

dollars from the manufacturers of DBCP for costs related to the clean-up of DBCP contaminated

water supplies. These companies paid large settlements to several communities for groundwater

contamination from DBCP and litigation has been filed in Hawaii against many of these same

Defendants over contamination of drinking water wells containing DBCP over the maximum

contaminant level ("MCL") on Maui, Lanai and Oahu. The MCL for DBCP in drinking water is

2 parts per billion; the EPA's goal for water systems, because of DBCP's serious health risks, is

zero contamination.

G. Testing For Hazards

28. What little pre-market toxicology research was done on DBCP was conducted in or

around 1958, by the Defendant Dow's company doctor, Dr. Ted Torkelson, and by Defendant

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Shell's consultant, Dr. Charles Hine of the University of California Medical School in San

Francisco. In testing of DBCP on rats, both labs found DBCP caused retarded growth, organ

damage, shrunken testes or testicular atrophy, and sterility.

29. In an April 1958 "confidential report," Dr. Hine wrote that "among the rats that

died, the gross lesions were especially prominent in lungs, kidneys, and testes. Testes were

usually extremely atrophied." Dow's first in-house report came three months later, in July

1958, and concluded that DBCP was "readily absorbed through the skin and high in toxicity

in inhalation." Dow's data also showed that "liver, lung and kidney effects might be

expected" and that "testicular atrophy may result from prolonged, repeated exposure.'"

H. USDA Registration: 1961

30. Hine, working jointly for Dow and Shell, drafted a report in support of FDA registration

in May of 1961 calling for work place concentrations of DBCP to be kept under one part per

million ("ppm"), and reconunending impermeable protective clothing if skin contact was likely.

Louis Lykken, in charge of government registration of chemicals for Shell, commented that the

suggestion was "impractical." Responding to Hine's observation that repeated exposure could

affect human reproduction, Lykken wrote: "Leave out speculation about possible harmful

conditions to man. This is not a treatise on safe use."

I. Product Labeling

31. In 1961, a USDA registration official wrote Shell upon receipt of the company's proposed

labels, stating that "in view of the testicular atrophy demonstrated to occur in experimental

animals, we would like to have information regarding health records of those individuals

who have been employed for an extended period in the manufacture or formulation of

products containing DBCP." A flurry of memos ensued. The following excerpts from Shell

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documents demonstrate Defendant Shell's attitude:

August 21, 1961: "We have discussed with Dr. Zavon USDA's precautionary labeling and the hazards associated with this pesticide chemicaL He shares our opinion that USDA is being over cautious in their views on labeling products containing this pesticide chemicaL It is the consensus that Dr. Zavon and a representative of Dow's toxicology group should meet with the USDA toxicology section representatives to settle this issue."

August 29, 1961: "We have just received and reviewed the subject technical bulletin [and information brochure on Nemagon (Shell's flagship product)] and have some reservations with regard to the adequacy of the statements under safety precautions. In light of the fact that the threshold of odor detection has been reported at one point at seven parts per million and the lowest level studied [five parts per million] has demonstrated damage after repeated exposures, it appears the statement "there is a good margin of safety in handling" would be difficult to justify and might be prosecuted as negligent."

November 9, 1961: "The pesticides regulations branch of the U. S. Department of Agriculture has expressed concern over the hazards associated with the use of Nemagon soil fumigant and proposed stringent labeling for the~ various formulations now being marketed. It is the consensus in the division office that the USDA is being overly cautious and the precautionary statements proposed could have an adverse affect on the sale of this product. This matter has been discussed with the USDA representatives and they are willing to relax their labeling requirements if we can provide them with a history of safe use experience in the field and in the manufacturing plant."

DBCP was entered in the toxicology card file in Dow's medical library. The toxicology card for

Dow's flagship product, Fumazone, noted eye and skin affects, and stated that testicular damage

"may result from chronic exposure to active material." Liver and kidney damage were also

discussed, but the toxicology cards were soon altered to delete information on testicular damage.

32. As a result of Defendants' lack of precautions, Plaintiffs had regular, heavy exposure to

DBCP through vapor inhalation, skin absorption and/or ingestion of contaminated water or

products or foods. Production manuals contained no warnings of the testicular affects ofDBCP,

and did not advise the use of safety gear or other precautions. The labels on Fumazone certainly

did not tell them, and workers such as Plaintiffs and farm workers throughout the world

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invariably state that no warrung of the product's dangers was ever given by any of the

Defendants.

J. Banning and Exportation

33. In the United States, DBCP had by 1975 been termed a suspected carcinogen by the EPA.

In July 1977, thirty-five of one hundred fourteen workers manufacturing DBep at Occidental's

Lathrop, California plant were found to be sterile. One month later, the EPA suspended DBCP

from all but a few uses in Hawaii. Even in Hawaii, use was permitted only under heavily

restricted conditions with extensive protective equipment because manufacturers' representatives

assured regulatory authorities that DBCP could be used safely under such conditions.

Nevertheless, in 1985, the EPA canceled the registration for DBCP for all uses because despite

industry claims to the contrary there was no safe level of exposure. Unfortunately, the large

scale use of DBCP on pineapple plantations in Hawaii has led to extensive groundwater

contamination in the islands as well as toxic occupational exposure to thousands of Hawaiian

pineapple field workers.

34. The U.S. ban on manufacturing ofDBCP, however, did not prevent the Defendants from

exporting DBCP. The Manufacturers still had stocks to sell. When Dow informed Standard that

it planned to suspend sales and wait for EPA test results, Standard threatened to sue, complaining

that "your halt of shipping our outstanding orders is viewed as a breach of (~ontract." Dow

agreed to continue delivery only after Standard agreed to indemnify it against claims for injuries

resulting from DBCP use. This controversy even became the focus of hearings in the United

States Senate:

[l]ndustry studies ... were kept secret from domestic chemical company employees and from agricultural workers using DBCP in the field. Now, tragically, twenty years later, the sterilization that had been predicted by laboratory tests became a reality - increasing numbers of workers in the manufacturing plants and banana

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fields found they could not have children. EPA finally banned DBCP from nearly all domestic farm uses, but the companies then dumped their unused stocks overseas where it continued to be used ...The tale of DBCP is an appalling one.

Senator 1. Leahy, Circle of Poison: Impact of U. S. Pesticides on Third World Workers,

Hearings before the Committee on Agriculture, Nutrition, and Forestry, 102 Cong., First Sess. 1

(June 5,1991).

35. When available stocks of DBCP began to be exhausted, Castle and Cooke, Inc. (now

known as Dole Food Company, Inc.) entered into negotiations with Dow to arrange for Dow to

set up a DBCP plant to be run by Castle & Cooke, Inc. outside the United States. Thus, despite

all the known hazards of DBCP and the damage done to workers exposed to DBCP, Castle &

Cooke, Inc. continued to look for a way to circumvent the health related ban on production of

DBCP in the United States.

v. FIRST CAUSE OF ACTION - GENERAl" NEGLIGENCE

36. All relevant allegations and facts set forth in the preceding paragraphs are realleged and

incorporated by reference herein where applicable.

37. Defendants had a legal duty to exercise reasonable care in the manufacture, sale, testing,

quality assurance, quality control, distribution, use, and/or placement of DBCP into the stream of

commerce, including a duty to assure that Persons who might be exposed to the product did not

suffer from adverse health effects. Defendants breached this duty and were negligent in that they

failed to exercise reasonable care in the manufacture, sale, testing, quality assurance, quality

control, distribution, use, and/or placement ofDBCP into the stream of commerce.

38. In addition to PGAH's role in testing and developing DBCP with Dow and Shell, and

promoting and marketing it to the commercial fruit industry, the PGAH engineered and

developed the technology and delivery systems used with DBCP, including but not limited to,

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the injector and the boom spray. At the direction of those who tested, developed and

manufactured DBCP, including the PGAH, both types of application equipment were utilized to

apply DBCP on banana plantations in Plaintiffs' countries substantially contributing to Plaintiffs'

exposure through spillage and splashing when applied by injector, and overspray that drifted

through the air when applied by boom spray, contaminating the Plaintiffs' breathing zones; in

fact, both types of application techniques designed and engineered by the PGAH-the injector

and the boom spray--caused the accumulation and concentration of DBCP vapors in the

Plaintiffs' breathing zones, especially under the near impenneable canopies fonned by thousands

of banana leaves. The banana leaves created an insular environment trapping the dangerous

DBCP vapors and exponentially compounding exposure to Plaintiffs in the area. The defective

design, marketing and use of the equipment was a substantial factor causing Plaintiffs' exposure

and resulting injuries and damages.

39. The acts and/or omissions of Defendants that constitute negligence include, but are not

limited to, the following:

a. providing DBCP-containing products to Plaintiffs to handle and apply;

b. failing to properly instruct Plaintiffs in the handling and applications of DBCP

containing products;

c. using DBCP-containing products in locations and in a manner causing DBCP

exposure to Plaintiffs;

d. distributing for use DBCP or DBCP-containing products when it was foreseeable

to Defendants that the Plaintiffs would use the DBCP in the manner it was used and that such use

would foreseeably cause the injuries of which Plaintiffs now complain;

e. failing to adequately warn the Plaintiffs and the public of the dangerous

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characteristics of DBCP and the health hazards of exposure to it, or to cause their subsidiaries or

affiliates to do so;

[. failing to warn the Plaintiffs' in their native language of the health hazards of

exposure to DBCP, or to cause their subsidiaries or affiliates to do so;

g. failing to provide the Plaintiffs \vith information as to what would be reasonably

safe protective clothing and proper protective equipment and apparatuses, if in truth there were

any, to protect the Plaintiffs from health hazards of exposure to DBCP, or to cause their

sub~idiaries or affiliates to do so;

h. failing to take reasonable precautions or exerCIse reasonable care to adopt,

publish, and enforce a safety plan for a safe method of handling and applying DBCP, or to cause

their subsidiaries or affiliates to do so;

1. failing to adequately supervise and instruct the Plaintiffs in the safe and proper

handling and applying of DBCP-containing products, or to cause their subsidiaries or affiliates to

do s);

J. failing to implement proper methods and techniques of handling and applying of

DBCP-containing products, or to cause such implementation, or to cause their subsidiaries or

affillates to do so;

k. failing to implement and enforce a safe use program to instruct the Plaintiffs in

the wearing of adequate protective clothing and equipment during handling and applying of

DBCP-containing products, or to cause their subsidiaries or affiliates to do so;

1. failing to use a substitute material for DBCP in the nematocide, or to cause their

subsidiaries or affiliates to do so to prevent exposure;

m. failing to adequately test DBCP prior to releasing DBCP-containing products for

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distribution and use to determine safe methods of handling and applying them, or to cause their

subsidiaries or affiliates to do so;

n. failing to reveal the results of tests conducted on DBCP to the Plaintiffs, public

health and safety officials andlor the public, or to cause their subsidiaries or affiliates to do so;

o. concealing from the Plaintiffs information concerning the observed effects of the

products on the Plaintiffs and their co-workers, or causing Defendants' subsidiaries or affiliates

to do so;

p. failing to adequately monitor the health of the Plaintiffs and their co-workers

exposed to the products, or to cause their subsidiaries or affiliates to do so;

q. failing to use due care in designing and manufacturing DBCP so as to avoid the

aforementioned risks to individuals from occupational exposure to DBCP, or to cause their

subsidiaries or affiliates to do so;

r. failing to conduct adequate pre-market and laboratory testing and post-marketing

surveillance to determine the safety of DBCP, or to cause their subsidiaries or affiliates to do so;

s. failing to provide adequate training to fruit company medical care providers so

that health care providers were aware of the health dangers posed to the workers exposed to

DBCP, or to cause their subsidiaries or affiliates to do so;

t. marketing, supplying and using DBCP despite its potential for side effects, and

failing to adequately test for carcinogenic, mutagenic and teratogenic potential or other adverse

health effects, particularly where such effects were known by Defendants to be potentially

severe, permanent and not readily recognizable to the user; and,

u. continuing to distribute or use DBCP or DBCP-containing products after its toxic

side effects became known and/or after its distribution and use was banned in the contiguous

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United States; and,

v. designing and placing into the stream of commerce defectively designed

applicator devices and systems, the use of which was a substantial factor in Plaintiffs exposure to

DBep.

40. Defendants' negligent acts and/or omissions were a legal cause of Plaintiffs injuries and

damages, as more fully set forth below, and said acts and/or omissions are the basis of other

causes of action set forth particularly herein.

VI. SECOND CAUSE OF ACTION - NEGLIGENT DESIGN



42. Defendants had a legal duty to take reasonable measures to design their product to protect

against reasonably foreseeable risk of injury. Defendants did not take such reasonable measures

and instead designed, manufactured, distributed, and sold DBeP-containing products and

application devices and systems despite reasonably foreseeable risks of injury to Plaintiffs, who

used the product and worked around the product in a foreseeable manner.

43. Defendants' negligent design was a legal cause of Plaintiffs injuries and damages, as

more fully set forth below.

VII. THIRD CAUSE OF ACTION - NEGLIGENT FAILURE TO WARN



45. Defendants were part of the chain of distribution of DBeP-containing products and

application devices and systems in that they manufactured, sold, distributed, used or otherwise

placed in the stream of commerce their DBeP-related products. Defendants knew or should

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have known that DBeP-containing products and application devices and systems created risks of

injury to Plaintiffs when used as intended or in a reasonably foreseeable manner. By acts and

omissions more fully described herein, Defendants failed to use ordinary care to warn the

intended and foreseeable users of DBeP-containing products and application devices and

systems of said risks, as well as those bystanders whose exposure was foreseeable, or Defendants

failed to cause Defendants' subsidiaries, affiliates or buyers to do so.

46. Defendants' failure to warn was a legal cause of Plaintiffs injuries and damages, as more

fully set forth below.

VIII. FOURTH CAUSE OF ACTION NEGLIGENT MISREPRESENTATION

47. Plaintiffs reallege all relevant allegations in the preceding paragraphs :md incorporate

them by reference herein where applicable.

48. In the course of designing, formulating, manufacturing, selling, distributing, and/or using

DBep, DBeP-containing products and DBep application devices and systems, Defendants

made representations concerning the safety of DBep, DBeP-containing products and DBep

application devices and systems to Plaintiffs. Defendants supplied false information for the

guidance of others, and Defendants did not exercise reasonable care or competence in obtaining

or communicating this information. These representations contained misrepresentations,

including but not limited to:

a. false statements of fact;

b. statements of opinion based on false statements of fact;

c. statements of opinion that Defendants knew to be false; and,

d. expressions of opinion that were false, made by Defendants who claimed or

implied they had special knowledge of the subject matter of the opinion.

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49. Plaintiffs and those directing Plaintiffs were in the class of persons intended by

Defendants to receive or "benefit" from Defendants' representations. Plaintiffs and those

directing Plaintiffs justifiably relied on representations made by Defendants.

50. The negligent misrepresentations and justifiable reliance were a legal cause of Plaintiffs

injuries and damages, as more fully set forth below.

IX. FIFTH CAUSE OF ACTION - STRICT LIABILITY

51. Plaintiffs reallege all relevant allegations in the preceding paragraphs and incorporate


52. Defendants were part of the chain of distribution of DBCP-containing products in that

they manufactured, sold, distributed, used or otherwise placed in the stream of commerce DBCP

containing products.

53. The DBCP and DBCP products and application equipment and devices designed,

manufactured, marketed, sold or otherwise distributed by Defendants were defective in design or

formulation in that, it was more dangerous than an ordinary user would expect when used as

intended or in a reasonably foreseeable manner.

54. Further, and/or in the alternative, the DBCP and the DBCP application devices and

systems desib'1led, manufactured, marketed, sold or otherwise distributed by Defendants were

defective in design or formulation in that, when it left the hands of the manufacturer and/or

suppliers, the risks of danger inherent in the design or formulation outweighed the benefits

associated with the design or formulation and the product was used in a reasonably foreseeable

manner.

55. Further, and/or in the alternative, the DBCP and the DBCP application devices and

systems designed, manufactured, marketed, sold or otherwise distributed by Defendants were

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defective in design or formulation, in that, when it left the hands of the manufacturer and/or

suppliers, it was unreasonably dangerous because it was more dangerous than other alternatives.

56. Further and/or in the alternative, the DBCP and the DBCP application devices and

systems designed, manufactured, marketed, sold or otherwise distributed by Defendants were

defective in design or formulation, in that, when it left the hands of the manufacturer and/or

suppliers, it involved substantial danger known to them but not readily recognized by the

ordinary user, and not accompanied by adequate warnings of the danger or instructions for safe

use.

57. The DBeP-containing products that were used in proximity to and applied by the

Plaintiffs were designed, manufactured, formulated, marketed and/or distributed by Defendants

and subsequently sold, directly and indirectly, to the Plaintiffs or to Plaintiffs' employers who are

either named defendants or were directed to use DBCP by named defendants. Similarly, the

nBCP application devices and systems were designed, manufactured, formulated, marketed, sold

and/or distributed by Defendants and subsequently sold, directly and indirectly to the Plaintiffs

and Plaintiffs' employers who are either named Defendants or were directed to use these DBCP

application devices and systems by named defendants. The products left the possession and

control of Defendants in a defective and unreasonably dangerous condition, induding, but not

limited to, the following respects:

a. Defendants defectively designed the products in that they contained DBCP;

b. Defendants failed to warn those whose exposure was foreseeable of the health

risks of exposure and how to avoid such exposure;

c. neither the DBeP-containing products nor the DBep application devices or

systems contained an adequate and timely warning in the Plaintiffs' language: regarding the

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serious health hazards associated with DBCP;

d. the products did not contain an adequate and timely warning in the Plaintiffs'

language concerning safety precautions and the need for protective equipment when working

with DBCP;

e. the DBCP products were unreasonably dangerous per se;

f. the DBCP application devices and systems were unreasonably dangerous per se;

g. the substance of the warning on the approved labels was inadequate because the

approval of the labels was based on false, fraudulent and misleading and incomplete information

supplied to the regulatory agencies responsible for approving the labels; and,

h. the DBCP products and the DBCP application devices and systems were defective

due to inadequate post-marketing warning or instruction because, after the manufacturer km::w or

should have known of the risk of injury from DBCP, it failed to provide adequate warnings to

foreseeable users or consumers or exposed persons of the product and application devices and

systems and continued to distribute the products.

58. Defendants' distribution of DBCP-containing products containing manufacturing defects,

design defects, marketing defects and/or defective warnings and/or defective instructions was a

legal cause of Plaintiffs' injuries and damages, as more fully set forth below.

X. SIXTH CAUSE OF' ACTION - BREACH OF WARRANTY



60. The Defendants warranted that their DBCP-containing products were of good and

merchantable quality and fit for their intended use, both expressly and impliedly, by making

representations, affirmations of fact, and/or promises concerning their products' fitness for

20

intended use and/or safety, and by marketing and selling them for such intended use. The

Plaintiffs would show that they worked in close proximity to the Defendants' DBCP-containing

products and the Defendants knew or ought to have reasonably anticipated these working

conditions. Defendants had or ought to have had a reasonable expectation that Plaintiffs would

use or be exposed to Defendants' DBCP-containing products. Plaintiffs relied upon Defendants'

skill or judgment in selecting a suitable product and safe application device and system for the

use intended. The Defendants breached their express and implied warranties that their DBCP

products and DBCP application devices and systems were of good and merchantable quality and

were fit for their particular intended use by placing their DBCP-containing products into the

stream of commerce where Plaintiffs encountered it as end users and/or bystanders.

61. Defendants' DBCP-containing products' and DBCP application devices' and systems'

non-conformance with Defendants' express and implied warranties-specifically, the inherent

yet undisclosed unreasonably dangerous nature of the products-was a legal cause of Plaintiffs

injuries and damages, as more fully set forth below.

XI. SEVENTH CAUSE OF ACTION - PREMISES LIABILITY



63. Defendants that owned, occupied or controlled land where Plaintiffs exposure to DBCP

occurred had a duty of reasonable care to maintain the land in a safe condition and give adequate

warnings to those reasonably anticipated to be on the land of the dangers that existed. These

Defendants breached this duty by exposing Plaintiffs to the risks of health hazards of D BCP

exposure. Defendants who owned, occupied, or controlled land where Plaintiffs exposure to

OBCP occurred had sufficient control over the land to take reasonable measures to protect

21

Plaintiffs from DBCP exposure, either by preventing said exposure or by adequately warning

and/or instructing Plaintiffs concerning risks so that Plaintiffs could take steps to protect

themselves, but Defendants failed to take such reasonable measures. This failure was a breach of

their duty to Plaintiffs and was a legal cause of Plaintiffs injuries and damages, as fully set forth

below.

64. Defendants that did not own and/or occupy land where Plaintiffs exposure to DBCP

occurred affirmatively took actions to induce Plaintiffs and others to handle and apply DBCP

containing products, including but not limited to, the use of DBCP application devices and

systems in settings such as those where Plaintiffs' were exposed to DBCP. These Defendants'

actions created a false appearance of safety concerning use of and exposure to DBCP upon

which Plaintiffs relied to their detriment. Defendants' acts or omissions inducing Plaintiffs'

reliance were a legal cause of Plaintiffs injuries and damages, as more fully set forth below.

XII. EIGHTH CAUSE OF ACTION - AIDING AND ABETTING AND CONSPIRACY TO MISREPRESENT AND COMMIT FRAUD

65. Plaintiffs allege all relevant allegations in the preceding paragraphs and incorporate them

by reference herein where applicable.

66. Plaintiffs further allege that the named Defendants and/or their predecessors in interest,

their subsidiaries and/or affiliates, knowingly agreed, contrived, combined, confederated and

conspired among themselves and with one or more others to cause the Plaintiffs' injuries,

illnesses, and diseases by exposing the Plaintiffs to harmful and dangerous DBCP-containing

products and to deprive the Plaintiffs of the opportunity of informed free choice as to whether to

use the DBCP-containing products and to expose themselves to the dangers by marketing a

product they knew to be unreasonably dangerous.

67. Defendants committed the above-described wrongs by willfully misrepresenting and

22

suppressing the truth as to the risks and dangers associated with the use of and exposure to

Defendants' DBeP-containing products and the use of DBep application devices and systems.

Each of the Defendants aided and abetted the other Defendants in committing the tortious acts

that caused the Plaintiffs' injuries by designing, manufacturing, selling, distributing, marketing or

using DBep and DBep application devices and systems and withholding information from

Plaintiffs.

68. In furtherance of these conspiracies, Defendants committed acts and/or omISSIons,

including but not limited to the following:

a. For many years, Defendants, individually, jointly and in conspiracy with each

other, possessed medical and scientific data, and test reports which clearly indicated that DBCP

containing products were unreasonably dangerous, hazardous, deleterious, carcinogenic, and

potentially deadly; and that DBep was suspected of being mutagenic, teratogenic and causing

infertility;

b. despite medical and scientific data, literature and test reports possessed by or

available to Defendants, Defendants individually, jointly and in conspiracy with each other,

fraudulently, willfully and maliciously:

(l) withheld, concealed, suppressed and otherwise ignored the medical and

scientific data, literature and test reports regarding the risks of DBCP-containing products from

the workers who were exposed to them and using them, the public, and the agricultural

community;

(2) caused to be released, published, and disseminated medical and scientific

data, literature, and test reports containing information and statements regarding the risks of

DBeP-containing products which Defendants knew were incorrect, incomplete, and misleading;

23

and,

c. by the false and fraudulent representations, omissions, and concealments set forth

herein, the named Defendants individually, jointly, and in conspiracy with each other, intended

to induce the Plaintiffs to rely upon the false and fraudulent representations., omissions, and

concealments and to continue to expose themselves to the dangers inherent in the use of and

exposure to Defendants' DBCP-containing products.

69. The Dole Defendants and the Del Monte Defendants aided, abetted and conspired with

the POAH in developing, marketing and promoting the use of DBCP. These Defendants took

actions in furtherance of this conspiracy by meeting in Hawaii regularly, serving on the Board of

Trustees of the POAH, directing the activities of the POAH and subsidizing and funding the

POAH and its research arm, the Pineapple Research Institute, in developing and testing DBCP

for use as a commercial nematocide. These Defendants also jointly aided, abetted and conspired

with each other in the development of the DBCP application devices and delivery systems and

promoted the use of DBCP without proper or adequate safety measures, and promoted the

application of DBCP through these delivery systems that were in fact defective in design in

Plaintiff., countries. These actions were a substantial factor in causing Plaintiffs exposure,

injuries ~md damages.

70. The Plaintiffs and others, reasonably and in good faith, relied upon the false and

fraudulent representations, omissions, and concealments made by the Defendants regarding the

nature of the DBCP-containing products and use of the DBCP application devices and systems.

71. As a legal result of the Plaintiffs' and others' reliance on the Defendants' false and

fraudulent representations, omissions, and concealments, the Plaintiffs have sustained injuries

and damages as more fully set forth below.

24

XIII. GROSS NEGLIGENCE, WILLFUL AND WANTON CONDUCT



73. Defendants acts and/or omissions in designing, manufacturing, distributing, marketing,

supplying and using DBCP and DBCP application devices and systems despite the dangerous

side effects and in failing to adequately test for carcinogenic, mutagenic and teratogenic potential

or other adverse health effects, from exposure, particularly where defendant had reason to know

DBCP had serious, dangerous side effects and which effects it knew or should have known to be

permanent constitute gross negligence, indifference and callous disregard of public health, and

willful and wanton conduct, so as to subject Defendants to the payment of punitive damages.

74. Defendants' acts and/or omissions herein described constitute gross negligence, in that

they demonstrate a more extreme disregard for the health and welfare of others than is fairly

characterized by ordinary negligence.

75. Further, Defendants acts and/or omissions herein described were willful in that they were

premeditated, unlawful, without legal justification, and/or done with a bad motive or purpose,

and with indifference to their natural consequences. Defendants' acts and/or omissions were

wanton in that they were reckless, heedless, characterized by extreme foolhardiness, and in

callous disregard of, and callous indifference to, the rights or safety of others.

76. Defendants' grossly negligent, willful and wanton acts or omissions include, but are not

limited to, the following:

a. Defendants knowingly concealed information concerning the observed health

effects ofDBCP or DBCP-containing products from the Plaintiffs, the United States and foreign

governments, and the medical, scientific and agricultural communities;

25

b. Defendants knew of the hazards posed by DBCP-containing products, yet with

reckless disregard for the anticipated consequences they exposed Plaintiffs to DBCP products in

operations involving the Plaintiffs and/or sold and distributed those DBCP products for use by

the Plaintiffs;

c. Defendants knew of the hazards to the Plaintiffs posed by DBCP-containing

products and by the methods of application utilized, yet, they continued to use these methods

and/or allow others to continue to use these methods;

d. Defendants knew of the hazards to the Plaintiffs posed by DBCP-containing

products, yet, they failed to provide adequate protective clothing and equipment to the Plaintiffs;

e. Defendants knew of the hazards to the Plaintiffs posed by DBCP-containing

products, yet, they did not instruct consumers of the product, including the Plaintiffs, in safe

application techniques; and,

f. Defendants continued to sell, purchase and use DBCP-containing products even

after the United States regulatory authorities suspended or banned their use and, therefore, after

Defendants were indisputably on notice ofDBCP's dangerous properties.

77. As a legal result of the Defendants' grossly negligent, willful and wanton acts or

omissions, the Plaintiffs have sustained injuries and damages as more fully set forth below.

XIV. ALTER EGO AND AGENCY

78. Defendants and their agents, subsidiaries and/or predecessors are liable to the Plaintiffs

individually and on alternative liability theories, "alter ego", single business enterprise,

continuing business enterprise, and/or successor liability theories. Plaintiffs allege that the

agents, employees, managers, officers, superintendents and/or servants of these Defendants

carried out the acts and omissions described herein in the course and scope of their employment

26

for these: and other named Defendants in the furtherance of a common corporate cause or

purpose.

79. Dole Food Company, Inc. is the successor in interest to Castle & Cooke, Inc. Standard

Fruit and Steamship Company is the alter ego of Dole Food Company, Inc., Standard Fruit

Company, and/or Dole Fresh Fruit Company. Standard Fruit Company is the alter ego of Dole

Food Company, Inc., Standard Fruit and Steamship Company, and/or Dole Fresh Fruit

Company. Dole Fresh Fruit Company is an alter ego of Standard Fruit Company, Standard Fruit

and Steamship Company, Dole Food Company, Inc., Standard Fruit Company de Costa Riea,

S.A., Standard Fruit Company de Honduras, S.A., Dole Fresh Fruit International, Limited" and

Dole Fresh Fruit International, Inc. These subsidiaries are so integrated and controlled by Dole

Food Company, Inc. that they are the alter ego of Dole Food Company, Ine, as well as each

other, and constitute a single business enterprise.

80. Plaintiffs, on information and belief, allege that Standard Fruit Company, Standard Fruit

and Steamship Company, Dole Food Company, Inc., Dole Fresh Fruit Company, Del Monte

Fresh Fruit Company, Inc., and the Pineapple Growers Association of Hawaii ("the Grower

Defendants") performed many of the tortious acts described herein through their agents,

predecessors and/or alter ego corporations, both foreign and domestic.

81. Plaintiffs, on information and belief, allege that Amvac Chemical Corporation, Shell Oil

Company, the Dow Chemical Company, and Occidental Chemical Corporation performed many

of the tortious acts described herein through their agents, predecessors and/or alter ego

corporations, both foreign and domestic.

XV. COMPENSATORY DAMAGES

82. Defendants' tortious conduct herein described is a legal cause of Plaintiffs injuries and

27

damages. As a result of Defendants' conduct, the Plaintiffs are entitled to general and special

damages and have been rendered sterile and infertile, have developed sexual and reproductive

abnormalities, have suffered other health maladies, all of which have only manifested recently,

and/or are subject to an increased risk of cancer and other adverse health conditions. Plaintiffs

have been damaged in some or all of the following particulars for which they have brought suit,

all in such amounts as will be shown at the time of trial:

a. Plaintiffs have suffered in the past and will continue to suffer in the future great

physical pain and suffering, mental anguish and emotional distress;

b. Plaintiffs have suffered in the past and will continue to suffer in the future

medical, rehabilitative, and health related expenses;

c. Plaintiffs have suffered in the past and will continue to suffer in the future lost

income, lost wages, and lost earning capacity;

d. Plaintiffs have suffered in the past and will continue to suffi~r in the future

permanent and partial disability and physical impairment;

e. Plaintiffs have suffered in the past and will continue to suffer in the future

disfigurement;

f. Plaintiffs have suffered an extraordinarily increased risk of developing serious

illness, including cancer, damage to the testes, kidneys, liver and gastrointestinal tract, damage to

skin and eyes, and respiratory system, from exposure to DBCP-containing products that will

require medical monitoring. To detect the early onset of such diseases and illnesses the Plaintiffs

will incur substantial expenses for medical testing, evaluation, examination, and other related

expenses. The Plaintiffs' need for medical monitoring is reasonable in light of the follmving

reasons:

28

(1) Plaintiffs have suffered substantial exposure to Defendants' DBCP

containing products;

(2) DBCP-containing products are so toxic and hazardous to human health

that the U.S. government has banned their use;

(3) diseases caused by DBCP-containing products are serious and potentially

fatal;

(4) Plaintiffs have a substantially increased risk for developing such diseases;

(5) early detection and diagnosis of diseases caused by DBCP-containing

products \\1.11 improve the prospects for cure, treatment, and minimization of pain and disability;

g. Plaintiffs have suffered in the past and will continue to suffer in the future an

extraordinarily increased risk of genetic damage;

h. Plaintiffs have suffered in the past and will continue to suffer in the future a loss

of capacity to enjoy life; and,

L Plaintiffs have suffered a loss of economic support and loss of consortium.

lne Plaintiffs claim damages (including compensatory damages, punitive damages and

other damages, if any) that exceed the minimal jurisdictional amount required by this Court.

XVI. PUNITIVE DAMAGES

83. Plaintiffs reallege all relevant allegations contained m the prevIOUS paragraphs and

incorporate them by reference herein where applicable.

84. As a direct and proximate result of all the Defendants' breach of duties to the Plaintiffs,

the Plaintiffs have sustained injuries and damages as set forth above as well as humiliation and

social ostracism because they are unable to have a family in accordance with the cultural norms

of their society. The Plaintiffs will show that the damages incurred were legally caused by the

29

grossly negligent, willful and wanton acts and omissions, consciOUS indifference and other

disregard for the health and welfare of the Plaintiffs on the part of the named Defendants, their

agents, servants, employees, managers, superintendents, managing directors, and officers in that

they ignored and concealed evidence available to them which demonstrated that DBCP and

DBCP-containing materials were harmful and deadly to persons coming in contact with such

materials. The Defendants' committed acts and omissions described above maliciously,

intentionally, and with flagrant disregard for the rights of the Plaintiffs and others, and with the

actual awareness on the part of the Defendants that the acts and omissions would foreseeably

result in great bodily harm to the Plaintiffs. Consequently, users of DBCP-containing products,

such as the Plaintiffs, were deprived of knowledge of the risks and thereby deprived of the

opportunity of free choice as to whether or not to expose themselves to DBCP-containing

products manufactured, formulated and used by the named Defendants. The Plaintiffs will show

that as a result of the aforesaid conduct, they should be compensated in an amount that would

punish the Defendants, act as a deterrent to Defendants for the commission of similar wrongs,

and serve as an example or warning to Defendants and others not to engage in such conduct.

85. The Plaintiffs claim damages (including compensatory damages, punitive damages and

other damages, if any) that exceed the minimal jurisdictional amount required by this Court.

PRAYER

86. WHEREFORE, the Plaintiffs demand judgment against the Defendants, and each of

them, jointly and severally, for general and special damages and for punitive damages, for their

costs expended, for interest on the judgment from the date rendered until paid, at the legal rate,

for pre-judgment interest, and for such other and further relief both at law and at equity, to which

the Plaintiffs may show themselves justly entitled.

30

87. The Plaintiffs pray for relief as follows:

a. For general damages in a sum in excess of the jurisdictional minimum of this

Court, according to proof;

b. For special damages, including but not limited to, medical, incidental, hospital,

and service expenses according to proof;

c. Loss of earnings and earning capacity according to proof;

d. Medical monitoring according to proof;

e. Prejudgment and post judgment interest as provided by law;

f. Compensatory damages in excess of the jurisdictional minimum of the Court,

according to proo f;

g. Consequential damages in excess of the jurisdictional minimum of the Court,

according to proof;

h. Punitive damages according to proof;

1. Attorneys' fees, expenses, and costs of this action; and,

J. Such further relief as this Court deems necessary, just, and proper.

DATED: Honolulu, Hawaii, June 4, 2010.

~~ Attorney for Plaintiffs

31

LESLIE S. FUKUMOTO,

ATTORNEY AT LAW,

A LAW CORPORATION

LESLIE S. FUKUMOTO, #2708 Suite 1711, Davies Pacific Center 841 Bishop Street Honolulu, HI 96813 Telephone No. (808) 537-4541

Attorney for Plaintiffs

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

FOR THE STATE OF HAWAI'I

LEOPOLDO MAURICIO QUEZADA VITONERA; ROBERTO WILLIAM BARONA BENITEZ; ODILO CASTRO LOPEZ; MANUEL JOSE PORRAS ALVAREZ; MAURO GREGORIO ZERDA GUERRA; JUAN CRISTOBAL ENRIQUEZ

Plaintiffs,

vs.

THE DOW CHEMICAL COMPANY; SHELL OIL COMPANY; OCCIDENTAL CHEMICAL CORPORATION (individually and as successor to Occidental Chemical Company and Occidental Chemical Agricultural Products, Inc., Hooker Chemical and Plastics, Occidental Chemical Company of Texas and Best Fertilizer Company); AMVAC CHEMICAL CORPORATION; DOLE FOOD COMPANY, INC.; DOLE FRESH FRUIT COMPANY; STANDARD FRUIT COMPANY; STANDARD FRUIT AND STEAMSHIP COMPANY; DEL MONTE FRESH PRODUCE, N.A., INC; DEL MONTE FRESH PRODUCE (HAWAII) INC; PINEAPPLE GROWERS

) CIVIL NO. ________ ) (PRODUCT LIABILITY) ) ) ) ) SUMMONS ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) } } ) } ) } )

ASSOCIATION OF HAWAII; ) JOHN DOES 1-10; JANE DOES 1-10; ) DOE PARTNERSHIPS 1-10; and DOE ) CORPORATIONS 1-10, )

) Dekndanh. )

SUMMONS

STATE OF HAW AI' I

TO THE ABOVE-NAMED DEFENDANT(S):

You are hereby summoned and required to serve upon Plaintiffs' attorney, LESLIE S.

FUKUMOTO, Attorney at Law, A Law Corporation, whose address is 841 Bishop Street, Davies

Pacific Center, Suite 1711, Honolulu, Hawaii 96813, an Answer to the Complaint which is

attached. This action must be taken within twenty (20) days after service of this Summons upon

you, exclusive of the day of service. If you fail to make your Answer within the twenty (20)

day time limit, judgment by default will be taken against you for the relief demanded in the

Complaint.

This summons shall not be personally delivered between 10:00 p.m. and 6:00 a.m. on

premises not open to the general public, unless a judge of the above-entitled court permits, in

writing on this summons, personal delivery during those hours.

A failure to obey this summons may result in an entry of default and default judgment

against the disobeying person or party.

DATED: Honolulu, Hawai'i, _______"'_:_:_;2_C:_'~f_!---H:"~

N. ANAYA

CLERK OF THE ABOVE-ENT

2

Documents

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