An attorney for six men who claimed they were left sterile by pesticide exposure while picking bananas for Dole Food Co. argued Thursday that they should get to keep the money despite findings of fraud in a similar case.
Dole investigators uncovered evidence that some Nicaraguans suing the company had lied, but the company deliberately withheld that evidence from the trial that ended in 2007 with jurors awarding $2.3 million to six men, plaintiffs' attorney Steve Condie argued.
The jurors were unaware that a number of the original plaintiffs had dropped out because their testimony was under suspicion.
Judge Victoria Chaney, who presided over the case, said she "smelled a whiff of a problem" at the time but she did not pursue it because there was no evidence to support fraud.
Dole attorney Theodore Boutrous said the company had only suspicions of fraud - and when they brought up the matter with the judge who preceded Chaney on the case, they were told: "You've got to have admissible evidence."
"Admissible evidence didn't exist" until months later, Boutrous said.
Dole is asking Chaney to overturn the ruling in the wake of previous testimony that two lawyers from Nicaragua and Los Angeles recruited men to say they were former banana workers and had been rendered sterile by exposure to pesticides on Dole plantations.
Evidence showed that most of the men were not sterile - some had children after the relevant time - and most never had worked at banana plantations. Based on those findings, Chaney dismissed a similar lawsuit last year.
"There is no question that there were fraudulent plaintiffs," Condie said outside court Thursday. "But my clients are all legitimate. They were sterilized."
During the hearing, the judge noted the difficulty of determining whether the plaintiffs had, indeed, worked for Dole.
Chaney said that she understood Dole's problems in investigating the case because there were no records of employment left at Dole plantations in Nicaragua from 1970 to 1980. They were destroyed during the Sandinista revolution there, she said.
Boutrous said that there never has been a case with such exhaustive investigation. He said Dole agents interviewed more than 250 people trying to get usable witnesses, but they were stopped by fear and intimidation by those who wanted to sue the company.
The suggestion that Dole withheld evidence of fraud is absurd, he said.
The judge also acknowledged that some of her rulings during the trial may have prevented Dole from putting forth its suspicions in court.
Chaney made no immediate ruling Thursday and questioned whether she even has the authority to dismiss the case.
Chaney now is on California's 2nd District Court of Appeal. She was designated to return from the appellate court to hear the case because she presided over the original 2007 trial in Los Angeles Superior Court.
That case cost the state a lot of money and took up four months of courtroom time, and "if it was fraudulent, it's extreme and outrageous," the judge said.
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