June 23, 2000

San Antonio Express-News

Case Costs DuPont $100 Million

Valley farmers win dispute

By Elizabeth Allen

Express-News Business Writer

A Starr County jury this week decided that DuPont should pay more than $100 million in damages to two Rio Grande Valley growers who said they lost crops because they relied on a faulty DuPont fungicide. 

 “It just got worse and worse,” Star Produce general manager Ross LaGrange said of the fungus that attacked his cantaloupe fields despite the chemical treatment. 

 “We kept putting on more and more, and eventually the whole field looked like Post Toasties.” 

The jury award is only the latest suit involving DuPont’s fungicide.  A recent Maverick County jury awarded $69 million to pecan growers who said the fungicide damaged their groves. 

In the most recent suit, Starr Produce Co. and Elmore & Stahl, Inc. v. E.I. du Pont de Nemours & Co., the growers alleged that the chemical Benlate WP, designed to kill crop-damaging fungi, was no help when a damp 1997 brought the gummy stem blight that wiped out their fields and meant a $10.2 million loss. 

Responding to the jury’s action, DuPont spokesman Mike Riccuito said Friday, “I got to tell you, that was an incredibly outrageous award and we will vigorously fight it on appeal.” 

 He added that 1995 tort reforms will make the court reduce the amount to about a third of the jury’s award.  He said the Maverick County award was reduced to $35 million. 

The growers’ lawyer, Robert Scott, said Benlate offered their crops no protection during an unusually wet year. He added that the company knew the fungicide would be more effective if mixed with another chemical but did not say so.  The fungus also developed a resistance to Benlate, he said. 

But Riccuito countered that label issues aren’t DuPont’s fault, because the U.S. Environmental Protection Agency decides label information. 

Scott countered that an EPA expert testified that DuPont could put that information on its many-page label without EPA permission.  As for the wet year, Riccuito said, it was tailor-made for the blight and “was about the worst it gets.” 

However, Scott said, “my expert from A&M said fungicide is supposed to work when you have fungus.”  He added that DuPont’s own documents say Benlate works best in such conditions. 

The resistance factor was mentioned in the label, he acknowledged, adding that it is only one sentence buried in pages of fine print. 

The case is different from that of the Maverick County pecan growers.  In Quirk Land & Cattle Co., et al v. DuPont, the growers charge that Benlate was contaminated with herbicides. 

They also charged that Benlate, as it breaks down in hot conditions, changes from a fungicide to a herbicide, lawyer Phil Watkins said. 

Riccuito said South Texas juries regularly side against corporate defendants.  “It’s hostile territory there for every large company.” 

“How about the hostility of the federal judge that found them in contempt for $100 million?” Scott replied, “The hostility toward DuPont is widespread.” 

He referred to a Georgia case in which a judge fined DuPont $115 million for withholding evidence.  An appeals court later reversed that penalty. 

The Delaware and Florida supreme courts have also ruled that because of similar allegations, farmers who had settled for less could file fresh lawsuits against the chemical giant. 

Riccuito said DuPont will fight every judgment against the product it has already spent $1 billion to defend. 

Starr Produce’s LaGrange said he’s ready.  “It’s an excellent case,” he said.  “I have no problem with them taking it to any appellate court they want to.”