One Flew Under Courthouse Door
Dallas Morning News
Friday, February 26, 1993
Foreigner beats new law barring suits
By Charles B. Camp
Legal Affairs Writer of the Dallas Morning News
Texas lawmakers this week may have slammed the courthouse door on lawsuits by foreigners, but not before David Augustin Aguilar slipped by.
If things go his way, he just might have last word on the issue that started the controversy over access to the state's courts in the first place.
Attorneys for Mr. Aguilar, a Costa Rican banana plantation worker, two weeks ago quietly filed a class action suit in Houston alleging that a pesticide sold by three multinational chemical companies caused injuries, including sterility, to him and an unknown number of fellow workers.
Mr. Aguilar's suit seeks unspecified damages, including punitive damages from Houston-based Shell Oil Co., Dallas-based Occidental Chemical Corp. and Michigan-based Dow Chemical Co. Dow operates a major plant in Texas.
An Occidental spokesman said Thursday that the company stopped using the material in products in 1977, and it doesn't believe any of them were sold in Costa Rica. Dow and Shell officials couldn't be reached for comment.
The suit is almost a carbon copy of the so-called "Al-faro" case filed by about 80 Costa Rican banana workers in the same city in 1984.
That case eventually spawned a fierce legal and public debate between trial lawyers and business over who should use the state's courts. The battle ended only this week when legislators passed a bill sharply restricting the rights of non-Texans to sue in Texas civil courts.
The bill is expected to be signed into law by Gov. Ann Richards, but it won't take effect until Sept. 1, and isn't retroactive.
Mr. Aguilar's suit was put together over the last few mouths by Philadelphia attorney Myles H. Malman, even as lawmakers in Austin prepared their bill. Mr. Malman gained prominence as deputy chief of the federal trial team that won conviction of former Panama Gen Manuel Noriega on drug conspiracy charges. Mr. Malman was joined in the filing by Houston attorney Rusty Hardin.
"We're very serious about this," Mr. Malman said. He said he was aware of the original suit, settled late last year, and the impending action by the Texas Legislature. He said he believes the problems of the Costa Rican banana workers "have to be addressed," he said.
He said, "the difference between the original case and the new one is that Mr. Aguilar's action seeks damages for all Costa Rican banana workers.
"We're very serious about this."
Myles H. Malman,
Plaintiff's attorney
"This will take care of. them all once and for all" if it succeeds, he said. The Alfaro settlement was secret, but some people familiar with the case estimate it was for several million dollars. Mr. Malman estimated there are "several thousand" banana workers suffering from ailments caused by the chemicals.
Mr. Malman said he became involved because he "has a lot of interest in Latin America," enhanced in part by several trips to Panama, a banana-producing nation neighboring Costa Rica, during the Noriega case.
All three defendants at times before the early 1980s made or sold products containing a pesticide that was found to cause sterility, impotency and other problems, possibly including cancer, in humans, the lawsuit contends. The material was progressively banned in the United States starting in 1977.
Sale of the material continued. in some oversees markets into the early 1980s, however Mr. Malman said Mr. Aguilar worked with the chemicals for years starting when he was a teenager. He said Mr. Aguilar discovered he was sterile when he recently sought to marry.
Mr. Malman said that in addition to money damages, the suit seeks a company-paid medical fund and facility in Costa Rica to "address the tong-term effects and risks of their products."
