Fruit of the Poison Tree

For banana growers, the pesticide DBCP seemed like a godsend when it came on the market in the 1960s. The chemical has no equal for killing parasites that can devastate a banana crop. But DBCP proved to be uniquely effective for another purpose as well: sterilizing the men who worked with it.

Carlos Sosa knows all about DBCP's horrible side effect. Back in the 1970s, the thought that the foul-smelling mist he was injecting into the Costa Rican soil might be ravaging his reproductive glands never entered his mind. These days the thought seldom leaves it. His testicles have withered to a fraction of their normal size since his years working for American fruit giant Dole Food Company Inc., spraying the American-made chemical on bananas destined for American grocery stores.

It seems only fair that now he is looking to America for justice. To America or, more specifically, to a Dallas County jury that, starting next week, will determine just how much Dole should pay for allegedly emasculating Sosa and hundreds of his co-workers--or if the company should pay at all.

The sheer scope of the problem defies the imagination. The chemical, whose full name is dibromochloropropane, was used for decades on bananas from Uganda to the Philippines. In Costa Rica alone, where DBCP use ended in 1979, estimates of the number of affected workers range from 2,000 to 20,000. A full accounting may never be possible in this West Virginia-sized nation of 4 million people, because many of the victims are ashamed to come forward.

In Central America, fertility is a reflection of virility, and "los afectados"--"the affected ones"--have been the objects of scorn and even the target of jokes. One Costa Rican government official was heard to compare them to neutered beasts of burden, saying that "oxen work better than bulls."

Sosa, 49, a barrel-chested, voluble man with thick black hair and angular features that hint at Indian descent, speaks quite openly about his injuries--to a point. "My left testicle is this small," he says, placing his forefinger a hairsbreadth away from his thumb. Tests of his semen reveal some 500,000 sperm per milliliter; anything below 10 million is generally considered sterile.

Among the affected workers, impotence has exacted a high price in divorces. Sosa readily admits that his sterility has extended to problems in the bedroom, straining his marriage. He tells of friends who allowed their wives to have children with other men to keep their marriages together. But of his own two medically improbable children, Sosa will only say, "I love them as my own."

The Dallas trial involves 370 plaintiffs who worked for Dole in and around the town of Rio Frio in central Costa Rica. The group is part of a massive wave of DBCP litigation, Borja v. Dow, begun in 1993 when some 26,000 banana workers from 23 countries filed suit against a group of chemical companies and banana growers in American courts.

A federal judge rejected most of those suits, sending them back to their home countries under a legal doctrine called forum non conveniens. In Costa Rica, however, the nation's highest court ruled that the "convenient forum" was indeed the United States. Now some 6,000 cases have returned to American courts, and the Borja suit has come to trial--12 years after it was filed.

Five of the companies involved--manufacturers Dow, Shell and Occidental and banana growers Del Monte and Chiquita--settled with the workers in 1997 and 1998, coughing up more than $50 million. Dole, however, chose to fight on.

"We feel that these claims are absolutely without merit," says Dole's lead counsel in the Dallas case, Terry Murphy of the Jones Day law firm. His take is that many of the Borja plaintiffs are hoping to cash in on health problems that have nothing to do with DBCP. In 1992, Dole and others settled a DBCP lawsuit brought by Costa Rican workers for $20 million. "In that first case, there may have been some injured workers," Murphy concedes, "but not these guys."

Sosa couldn't be happier about Dole's intransigence. He received about $1,000 from the settlement with the other companies--but no apology. "The irreversible damage we have, the best lawyer for the other side couldn't pay for it," he says. "Nobody can." Sosa wants confirmation that he and his fellow workers were wronged. "The only way to truly exact justice is in a trial."

At long last, he'll get one. Both sides have been preparing for this courtroom clash for more than a decade. Dallas personal injury lawyer Fred Misko, the plaintiff's lead counsel, will try to sway the jury with the bigger picture: the humiliation that his clients have suffered and their sense of betrayal at the hands of their wealthy employer. Murphy will try to raise doubts about the specifics of each case, playing up the fact that many of the plaintiffs do have children and stressing the near impossibility of establishing exactly how much of the toxin each worker was exposed to.

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Rick Kennedy