Local firm has experience with Dole banana picker lawsuits

By Marilyn Tennissen | Apr 30, 2009

A judge in Los Angeles recently dismissed two cases against Dole filed by banana pickers because she found the plaintiff's attorneys committed fraud.

But in a separate case, a local plaintiffs' firm claimed it was the Dole attorneys that were behaving badly, committing defamation and civil conspiracy.

On April 23, Los Angeles County Superior Court Judge Victoria Chaney dismissed suits by Dole workers in Nicaragua who claimed they became sterile after exposure to the banned pesticide DBCP.

Chaney found that U.S. and Nicaraguan lawyers produced fraudulent plaintiffs, fabricated work histories and conspired with Nicaraguan judges to manufacture false lab reports.

Although thousands of plaintiffs have won judgments against Dole in Nicaragua in recent years, they have not been enforced because the company no longer has any assets in Nicaragua.

One of the firms representing banana workers in Nicaragua and elsewhere is Beaumont's Provost Umphrey.

In 2001, the law firm obtained power of attorney from about 3,000 banana workers who claimed they were sterile because of the pesticide.

A Nicaraguan court issued a $97 million judgment in favor of about 150 Provost Umphrey clients in 2005, but the judgment has not been enforced.

Shortly after the judgment, Provost Umphrey claimed that Michael Carter, who is general counsel for Dole, began making public appearances with Victorino Espinales, a non-lawyer political activist who claimed to represent 70 percent of the Nicaraguan banana workers.

Provost Umphrey alleged Carter and Espinales jointly advised workers to withdraw their suits and that Carter told the banana pickers to revoke their powers of attorney and transfer the powers to him.

In one news article found among court papers and translated from Spanish in 2006, Espinales said the banana workers "had not received five cents," but believed the lawyers "had pocketed a good amount of money."

"The lawyers have been telling a series of lies to us, and for six months we been revoking all the powers to them, because by the judicial route we do not have possibilities of anything," Espinales said.

Humberto Hurtado, a spokesman for Dole, is quoted as saying "We have agreed that these judgments have not had any positive result for the ex-banana workers, and there has been manipulation and deceit from the lawyers, creating false expectations in them."

On May 26, 2006, the Provost Umphrey office in Chinandega, Nicaragua, received a fax from Espinales revoking the powers of attorney of 2,400 workers. The list included 66 Provost Umphrey clients who were about to undergo sterility testing and provide testimony in a Nicaraguan court.

Represented by Joe Fisher of its Beaumont offices, Provost Umphrey took action and sued Dole, Carter and, James Teater, a Dole attorney from Houston, for negotiating directly with its clients.

The suit alleged the firm had been defamed, and that Dole and its
attorneys committed tortious interference with a business relationship and business disparagement and committed civil conspiracy to accomplish an unlawful purpose through unlawful means.

Fisher also sought a temporary restraining order to stop Dole from talking to Provost Umphrey clients.

Judge Gary Sanderson granted the TRO the same day, ruling there was no time to give Dole notice or hold a hearing.

From Jefferson County, the case was transferred to federal court in Beaumont, but U.S. District Judge Marcia Crone sent it back to Jefferson County for Judge Donald Floyd to deal with.

Dole then wanted it transferred to Harris County where Teater resided, but Floyd denied Dole's motion.

Dole appealed, and Floyd finally agreed to the transfer in June 2008 under a conditional writ of mandamus from the appeals court.

The case ended up with Judge Dion Ramos, Harris County 55th District Court.

According to documents on the Harris County District Clerk's site, the plaintiffs agreed to non-suit without prejudice on Feb. 6.

Provost Umphrey vs. Dole et al: Jefferson County Case No. E177-138
Provost Umphrey vs. Dole et al: Harris County Case No. 200849393

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