- The Washington Times - Tuesday, April 21, 2009

LOS ANGELES (AP) - Two men with cloaked identities testified on videotape Tuesday that they were recruited by lawyers in Nicaragua to fraudulently claim they were rendered sterile by pesticides used on Dole Fresh Fruit Co. banana plantations.

The men said they never worked on plantations and that the lawyers gave them information to make up stories in hopes of collecting millions of dollars in lawsuits.

The videotapes of the two men and depositions of plaintiffs in pending California lawsuits were presented by Dole attorneys at a hearing before a judge hearing those cases.

Attorney Scott Edelman said at the hearing that witnesses fear being killed, and Superior Court Judge Victoria G. Chaney said she was concerned for the safety of investigators and attorneys and feared obstruction of justice and interference with due process.

The videotaped witnesses appeared as shadowy forms and were referred to as John Doe 10 and 16 by attorneys.

One said he rejected an offer of $25,000 to $30,000 to participate while the other said he went along and was given many training sessions to prepare for suing Dole.

“It didn’t seem legal to me,” said John Doe 10, who testified he declined. “I had to think what these people were doing was harming those who really needed help.”

John Doe 16 said he accepted and began to receive training manuals from the attorneys and to attend meetings “to guide us and prepare us.”

He said participants had to pay to attend meetings, for their own transportation and training documents. He said they were shown pictures and movies of banana farms in order to make their testimony seem authentic.

Once, he said, they went on a bus trip to see banana warehouses. He said he was told “when the time comes for the gringos or the companies to ask you questions, you won’t fail the test.”

He said men in the program were subjected to sperm tests and in some cases were told to deny the existence of their children.

“If these people become aware, I don’t know who could shoot me on the street,” John Doe 16 said of the danger. “They could even set fire to my house with my family in it.”

He said he was taking the risk, “because I can’t stand it any more. The soup has spilled over and there are others like me who have not testified because they are afraid.”

The allegations involve lawsuits over the pesticide DBCP, which was used in the 1970s and then banned over health issues.

A Los Angeles jury in November 2007 awarded $2.5 million in punitive damages to five workers, but the court later dismissed those damages, saying they could not be used to punish a domestic corporation for injuries that occurred only in a foreign country. The jury also awarded more than $3 million in actual damages, which were later reduced to $1.58 million.

The case marked the first time a U.S. jury heard a lawsuit involving sterility and DBCP. That lawsuit claimed Dole continued to use the pesticide, which is now banned worldwide, long after its dangers were known. The verdict is now on appeal.

In an opening statement, Edelman alleged a years-long conspiracy to defraud American companies and explained why some witnesses would be disguised and some court sessions would be closed.

“They fear the mob and what has become a political movement in Nicaragua. They are afraid of being lynched and having their tongues cut out and being killed,” he said.

Dole lawyers and the judge said the company left Nicaragua in 1982 following the Sandinista revolution.

Attorneys for the plaintiffs who sought to sue Dole made only a brief opening statement. But one of the lawyers, Michael Axline, said he agreed with the Dole lawyer that “all parties were in a nightmare situation.”

He expressed regrets for the actions of a one-time co-counsel in Nicaragua who is now accused of engineering the fraud.

Dole lawyers also presented videotape depositions from 15 plaintiffs and spouses in the pending lawsuits. Many gave conflicting accounts of when they supposedly worked at banana farms. Most could not remember the names of any co-workers other than the “captains” who purportedly supervised them.

Edelman said the names of the supervisors were in the training manuals.

Several plaintiffs talked about believing they had been rendered sterile but some said they had pre-existing venereal diseases.

One couple insisted that a pair of twins and a son that the woman bore were not fathered by her husband. Both said they believed the children were the result of an affair the woman had with another man.

“She was cheating on me,” the man testified. “She cleared up the truth for me that the children were not mine.”

Dole lawyers told the judge that subsequent DNA tests showed the husband fathered all the children.

Los Angeles attorney Juan Dominguez, who also had offices in Nicaragua and is alleged to have been involved, was not present at the hearing. He did not return calls from The Associated Press on Monday.

Chaney has been the judge in lawsuits filed in Los Angeles against Westlake Village, Calif.-based Dole and Michigan-based Dow Chemical Co., which manufactured the pesticide.

“The court became deeply concerned that fraud may be occurring and that it has tentacles that extend to all of the Nicaraguan (pesticide) cases pending before it,” Chaney wrote in proceedings leading up to the special hearing.

Similar lawsuits against Dole are pending in Florida, Texas and Hawaii, among other states.


Associated Press Writer Thomas Watkins contributed to this report.

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