Dow faces Nemagon Liability in Venezuela

This week, lawyers for former banana workers poisoned by the US-banned insecticide Nemagon announced that the Venezuelan Supreme Court has accepted their case, and may order the three corporations implicated – Shell Chemical Company, Dow Chemical Company, and Standard Fruit Company (Dole) – to pay the millions in compensation originally ordered awarded by a Nicaraguan court in 2002. Since that successful judgment, the poisoned workers haven’t been able to enforce it or collect their compensation, as their claims have been thrown out or denied in Ecuador, Colombia, Paraguay, and the United States.
According to Benjamin Chavez Romero, spokesman of the Ogesa law firm, the Venezuelan Supreme Court accepted the case for collection against the three transnational companies on Apr. 24. The Supreme Court issued a ruling on Apr. 25 that gives the three companies ten days to present themselves before the Court to respond to the Justices questions. Otherwise, plants, products, and bank assets of the companies in Venezuela could be impounded.
Gee, hasn’t Dow faced an order like this before?

More on Nemagon
Dow and three other companies continued to produce and export the extremely hazardous pesticide Di Bromo Chloro Propane (DBCP) to developing countries for years after it was banned in the US in 1979. The US ban occurred after DBCP, sold under the name of Nemagon and Fumazone, was linked to human sterility in California.
The companies knew at least since the 1960s that the product caused male sterility in rats, and even speculated that DBCP could be a male contraceptive. However they concealed this information. An “internal and confidential” report on DBCP from the Dow Chemical Company Biochemical Research Laboratory dated July 23, 1958 reads: “Testicular atrophy may result from prolonged repeated exposure. A tentative hygiene standard of 1 part per million is suggested.” However, Dow did not reduce exposures to the chemical, and neglected to report findings of reduced sperm and atrophied testicles of rabbits and monkeys when they submitted information for registration and labeling. It wasn’t until 1977, when 35 of 114 workers at a DBCP production plant in California were found to be sterile, that the U.S. Environmental Protection Agency (EPA) levied strict regulations of the chemical. One worker in a Dow manufacturing plant said, “After telling me that I shouldn’t worry about anything out there because it can’t hurt me, now to find out that I’m sterile from it, their answer was, don’t worry about that because you can always adopt children.”
When DBCP was first marketed in developing countries, it had no labels warning that it was extremely toxic and no instructions on the use of safety equipment. “We sprayed without any protections,” says José Antonio Rodríguez Pineda, a banana worker who was employed at the San Carlos plantation in El Viejo. “We worked in shorts because it was so muddy, without any protection on our feet or hands.” Francisco Gonzáles believes he lost his chance to be a father because of the pesticide DBCP. “I can’t have children,” says Gonzáles who began working in the banana plantations of Chinandega, Nicaragua, in 1975, when he was 20 years old. “It’s very painful, you know, each one of us would like to have our own child, a child of our blood. But I was poisoned.”
Widespread use of DBCP on banana plantations around the world has caused the permanent sterility of thousands of workers. One study found that approximately 20-25 % of the male working population in banana plantations on Costa Rica’s Atlantic coast, where workers had mixed DBCP by hand, were sterilized. DBCP is also believed to cause miscarriages, birth defects, liver damage and cancer when inhaled or absorbed by the skin. This has created a great deal of liability for the companies responsible–primarily Dow, Shell, and Dole. In a 1997 settlement, the four companies that produced the chemical (Dow, Shell, Occidental and Amvac) agreed to pay $41.5 million to 26,000 banana workers in 11 countries.
However several other lawsuits continue. On December 11, 2002, a Nicaraguan court concluded that Dow, Shell, and Dole should pay $489.4 million to 486 banana workers. However the companies have refused to pay and, led by Dole, they counter-sued the claimants for fraud and asked for $17 billion in damages. When workers pursued enforcement of the court judgment this year in the US – their last real hope for wresting compensation from the companies – the U.S. Federal Court refused to take the case.
In a separate case on March 15, 2004, a civil court in Managua decided these same companies must pay a group of 81 women $82.9 million in compensation; the women had been made chronically ill by their exposure to DBCP. In March of 2004, Nicaraguan banana workers brought a lawsuit in Los Angeles Superior Court against Dole, Dow, Occidental, and Shell, among other corporations, alleging that exposure to DBCP made them sterile. And in October of 2004, thousands of other workers filed suit against against Shell Chemical Co., Dow Chemical, Dole Food Co., Chiquita Brands International Inc. and Fresh Del Monte Produce Co, seeking compensation for what they describe as ”wanton and reckless acts… and outrageous and malicious conduct.” Altogether the number of pending DBCP-related lawsuits has grown to 295 in Nicaragua, representing a total of 6,544 plaintiffs and damages worth more than $11 billion.
As recently as April 14th, 2005, a new lawsuit representing 600 Honduran banana workers was filed in a Los Angeles federal court, charging Shell, Dow Chemicals, Chiquita, Del Monte and Dole Food Company with widespread cases of sterility, testicular atrophy, miscarriages and other serious health complaints. Among other charges, the companies are being sued for negligence, concealing the hazards of the product and conspiracy. Similar legal actions have also been raised in Costa Rica, Ecuador, Panama, Guatemala, and the Philippines, where Dow, Dole and others were named in a $4 billion DBCP action involving 35,000 individuals, which was thrown out in 2002 on appeal.
Dow hasn’t recognized many of the judgments against it, and it’s working hard to see that there aren’t more of them. According to The New York Times, Dow, Dole, and Shell hired lobbyists to encourage the Bush administration to help annul Law 364, a Nicaraguan law that makes it easier for farm workers to sue for DBCP compensation. Secretary of State Colin Powell was reported to have intervened with Nicaragua’s foreign minister over this issue, as did Otto Reich, Assistant Secretary of State for Western Hemisphere Affairs. Revelations of this interference in the Nicaraguan press prompted a massive protest of banana workers–several thousand strong–who marched on the capital and demanded that the government resist US pressure. Subsequently both the Nicaraguan government and the Supreme Court have backed Law 364, leading Dow and Shell, in January 2004, to ask a federal court in California to declare future rulings in Nicaraguan courts under the law “unenforceable” in the United States courts. See this excellent overview in Corpwatch, and this article in the Miami Herald.
More recently, in April of 2005, former banana workers in Nicaragua won the right to present their case to the United Nations Human Rights Committee after more than one thousand DBCP victims staged a month-long protest – including hunger strikes, threats to burn themselves alive, and the occupation of the Human Rights Ombudsman office – in Managua. Human Rights Ombudsman Omar Cabezas announced on April 7 that extensive details of the case would be put before the UN committee, including descriptions of the extent and type of health problems suffered by the banana workers, details of their treatment by the Nicaraguan government, and their demand for a multimillion dollar compensation settlement from Dole, Dow, and Shell.

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