$113,486,100 Verdict Against DuPont Could Initiate Another Wave of Benlate Litigation
On May 17, attorneys and professionals from Holland & Hart LLP obtained one of the largest verdicts ever against E. I. DuPont de Nemours & Co. ("DuPont"). The Miami jury delivered this verdict in favor of 27 growers of leatherleaf fern in Costa Rica for damages caused by a DuPont product known as Benlate. The jury's verdict of $113, 486,100 was reached after a nine-week trial and five days of jury deliberations.
Benlate was the world's best selling fungicide before DuPont recalled the product from the market in 1991 for certain types of plants, including leatherleaf fern. Benlate was removed from the market by DuPont for all plants in 2001. The law suit against DuPont had been filed in 2001 and involved the Denver and Boise offices of Holland & Hart as well as local counsel, Don Russo representing the 27 Costa Rican growers, in addition to attorneys from the Denver and Chicago offices of Bartlit Beck Herman Palenchar & Scott, LLP and attorneys from the Miami office of Shook, Hardy & Bacon representing DuPont. In all, over 50 attorneys and professionals from these various law firms were involved in a hotly contested trial that lasted nine weeks in Miami.
In addition to its trial team of Steve Andersen, Peter Houtsma, David Black, Maureen Witt, Craig Allely, Bill Maywhort, Jennifer Weddle, Antonio Gallegos, Angelica Ochoa, Diego Hunt, Marcy Weaver, and Susanne Johnson, Holland & Hart had on site in Miami during the entire trial members of its graphics and animation department, its trial and jury consulting team, and a team of Spanish speaking attorneys to assist in trial preparation and presentation matters. Most of the Costa Rican documents were in Spanish and had to be translated to be admitted into evidence and translators were required for certain parts of the presentation of the growers case. According to trial attorney Peter Houtsma, "this case allowed Holland & Hart to showcase to the jury all aspects of our trial capabilities, which we have been building for the last 20 years." Holland & Hart has not only a highly experienced team of trial lawyers, but it is also one of the few law firms in the country with its own graphics and animation department and with a full time staff of four Ph.D. level jury and trial consultants.
DuPont had been involved in several thousand claims involving Benlate since the late 1980's and into the 1990's. DuPont documents indicated that it had paid out over $500 million in claims, primarily through insurance, before it made a corporate decision not to pay for any claims involving crops that became damaged due to Benlate over several growing seasons - "recrop claims" as DuPont referred to them. All of the Costa Rica claims involved recrop claims. Certain of DuPont shareholders had in fact sued the company and its former Chairman, Edgar Wollard, in 1995 contending that they had concealed material information regarding the magnitude of the Benlate problem. That law suit was eventually settled by the company. The victory for the Costa Rican growers in the case may start a new wave of litigation against the company for the lasting effects that Benlate has caused to a myriad crops around the world.
In this most recent case, the Costa Rican growers presented scientific proof which had not been the subject of any prior litigation showing that Benlate changed the balance of bacteria inside the plants and produced hormone effects that caused over 40% of the fern to become distorted and unmarketable. DuPont's defense was that a virus was causing the problem. The Costa Rican growers also presented expert testimony indicating that DuPont erred in marketing the chemical without adequate testing and erred in failing to ever test for the effects of Benlate on bacteria that live inside the plant. The case pitted DuPont, the science company, against Costa Rican growers, most of whom had never previously been involved in litigation of any manner and none of whom had ever been involved in litigation in the United States.
In addition to representing the Costa Rican growers of leatherleaf fern, Holland & Hart also represents 23 growers of citrus in Costa Rica who have filed Benlate claims against DuPont in the same Miami court before the same trial judge, the Honorable Amy Steele Donner. Those cases have not yet been set for trial, but Holland & Hart has indicated that they will take action to obtain a trial date in the near future. For three years, DuPont sought to keep all of the cases brought by Holland & Hart for Costa Rican growers from going to trial in Miami before Judge Donner arguing that the cases should be tried in its home state of Delaware or in Costa Rica. All such attempts by DuPont failed. The victory by the Costa Rican leatherleaf fern growers has renewed interest from others about pursuing a new wave of Benlate claims.
At the conclusion of the case, the six member jury comprised of diverse individuals some of whom had immigrated to America, presented a letter to Judge Donner. . Judge Donner indicated that it was the first time in 23 years on the bench that she had received such a communication from a jury. The letter, which was read to all in open court, stated:
"Today is a very emotional day for all of us since this case comes to an end after nine long weeks. At the beginning we had the impression that this case was going to be an interruption to our daily routines but we have to admit that it has been a great experience without a doubt. It has been a great experience especially for some of us who immigrated into this great nation many years ago and were deprived of their legal rights in their own countries.
During this time not only have we learned about each others lives and families inside the jury room but we have received the greatest first hand education of our judicial system and are thankful for that. We have also concluded that people of different ethnic backgrounds can sit at a table and solve problems. This is a valuable lesson for the community in which we live.
Now please accept our verdict, it is the result of our collective wisdom and individual backgrounds. We believe we have followed your instructions and guidelines to the best of our abilities and based on our knowledge of the case.
Once again, thank you for the opportunity to participate in this case. We are very proud of having you and your team serving Miami Dade County and this country. Obviously we have to have our share of participation in this case and cannot end without an objection. Please change the lunch menu! You and only you can sustain or over rule this request.
Sincerely, the jurors of case number 01-6932CA23 and 01-23796CA23"