Amicus Curiae Brief — Chick Kam Choo v. Exxon Corp.

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Supreme Court, U.S.

FILED

FEB 19 1988

QOSEPH F. SPANIOL, JR.

NO. 87-505 U

IN THE

Supreme Court of the United States

OcTOBER TERM, 1987

CHICK KAM CHOO, et al.,

Petitioners,

Vv.

EXXON CORPORATION, et al.,

Respondents.

AMICUS —_— = — AMICUS CURIAE

BuRT BALLANFANT

SHELL Ort COMPANY

P. O. Box 2463

4794 One Shell Plaza

Houston, Texas 77252

(713) 241-7023

Counsel of Record

a re oR

Alpha Law Brief Co., Inc. — 8748 Westpark—Houston, Texas 77063 — 789-2000

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE

CERTIFICATE OF SERVICE

ATTACHMENT A—-Consent of Attorney of Peti-

tioner for Filing of Amicus Curiae Brief

ATTACHMENT B — Consent of Attorney for Respon-

dat for Filing of Amicus Curiae Brief

INTEREST OF AMICUS CURIAE

SUMMARY OF THE FACTS IN A SERIES OF

LAWSUITS BETWEEN COSTA RICAN BANANA

WORKERS AND DOW CHEMICAL COMPANY

AND SHELL OIL COMPANY

ARGUMENT

CONCLUSION

APPENDIX

APPENDIX A — Plaintiff's Original Complaint in

Sibaja, et al. v. Dow Chemical, et al., No. 83-14798,

11th Circuit Court, Dade County, Florida

APPENDIX B — Motion to Dismiss or, in the Alterna-

tive, Motion to Transfer in Sibaja, et al. v. Dow

Chemical, et al., No. 83-1347-Civ-JLK, United States

District Court for the Southern District of Florida

APPENDIX C — Order Dismissing Cause in Sibaja,

et al. v. Dow Chemical, et al., No. 83-1347-Civ-JLK,

United States District Court for the Southern District

of Florida

APPENDIX D — Plaintiff's Original Complaint in

Alfaro, et al. v. Dow Chemical C ompany, et al., No.

84-17171, 6lst District Court, Harris County, Texas

APPENDIX E — Partial Dismissal on Agreement in

Alfaro, et al. v. Sheel Oil Company

APPENDIX F — Order of Dismissal in Alfaro, et al.

v. Dow Chemical Company, et al., No. 84-17171,

61st District Court, Harris County Texas

APPENDIX G — Plaintiff's Original Complaint in

Aguilar, et al. v. Dow Chemical Company, et al.,

No. €570052. Los Angeles County Superior Court, i

Ce, c'nkcesceucschesecacastesesesuaeses a

APPENDIX H — Order Vacating Order to Show Cause

in Aguilar, et al. v. Dow Chemical Company, et al.,

No. 86-4753 JGD (TX), United States District

Court for the Central District of California ....... 72a

APPENDIX I — Plaintiff's Original Complaint in

Cabalceta, et al. v. Siandard Fruit Company, et al.,

No. 87-05102,. 11th Circuit Court, Dade County,

eee ee ne ee 88a

APPENDIX ]— Order on Motion to Remand, Motion

a Dismiss, od Related Motions, in Cabalceta, et al.,

». Standard Fruit Company, et al., No. 87-0457-Civ-

Atkins. in the United States District Court for the

Southern District of Florida ................+++-- 128a

TABLE OF AUTHORITIES

CASES Page

Acuilar, et al. v. Dow Chemical Company, et al., No.

nee saenet, Los Angeles County Superior Court, California 12

Alexander, et al. v. Richardson, Merrill, Inc., 541 F.Supp.

GB CIDER) 2. cccccccccceccesceccesceccceseses seeeee 15

Alfaro, et al. v. Dow Chemical Company, et al., No. 84-

17171, 61st Dist. Ct., Harris County, Texas .......... 10, 11, 12

Aliaro, et al. v. Dow Chemical Company, et al. No. 01-87-

00700-CV, First Court of Appeals, Texas .... cen eeeees 12

Cabalceta, et al. v. Standard Fruit Company, et al. No. 87-

05102, 11th Circuit Court, Dade County, Florida .... 13,14

Erie Railroad v. Tompkins, 304 US. 64, 58 S. Ct. 817, .

S'S) 8. | Ree .:

pat. Corp. v. Chick Kam Choo, 817 F.2d 307 (Sth Cir. a

TERIOR SAFE

Pusceretd v. Texaco, Imc., 521 F.2d 448 (2nd Cir. 1975),

cert. denied, 423 U.S. 1052 (1976) ...... 2.2.22. eenes 14

; Oi _ v. Gilbert, 330 US. 501, 675 S. Ct. 839

rea) ie Dulroresudinp xis adi 2st em 2, 16, 18, 19

Ill

CASES Page

In Re Ocean Ranger, 617 F.Supp. 435 (D.C. La. 1985) .. 14

In Re Richardson-Merrill, Inc., 545 F.Supp. 1130 (S.D.

Te nweccccccees 15

In Re Union Carbide Gas Plant Disaster at Bhopal, India,

> 16

Mizokami Bros. of Arizona, Inc. v. Mobil Chemical Corp.,

Se ee GO Oe, BOE) 2... ccc cc cc ccccccccece 14,15

Piper v. Reyno, 454 U.S. 235, 102 S. Ct. 252 (1981), reh.

den. 455 U.S. 928, 102 S. Ct. 1296 a sb 2, 16

Pastewka v. Texaco, Inc., 565 F.2d 851 (3rd Cir. 1977) ... 14,19

Sibaja, et al. v. Dow Chemical, et al., No. 83-14798, 11th

Circuit Court, Dade County, Florida ................ 10

Sibaja, et al. v. Dow Chemical Company, et al., 757 F.2d

Ne cccwcuceccece 9,13

Sibaja, et al. v. Dow Chemical Company, et al., cert. denied,

S74 US. 946, 106 S. Ct. 347 (1908S) ............... 10

Sperry Rand Corp. v. Rothkin, 288 F.2d 245 (2nd Cir.

es ceccwencccocece 18

UNITED STATES STATUTES

Ce es cu ceccoeccees 2,9,15

ccs ic kc beacncdnceccveccesces 15

Neen ie neewceeee 14,17

SE ee 16

Tn ceceeeeces 16, 17,18

FEDERAL RULES OF CIVIL PROCEDURE

EEE EE 17

TEXTS

18 C. Wright, A. Miller, E. Cooper, Federal Practice and

Procedure: Jurisdiction § 4226 (1981) ................ 17

NO. 87-505

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

CHICK KAM CHOO, et al.,

Petitioners,

EXXON CORPORATION, et al.,

Respondents.

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE AND BRIEF AMICUS CURIAE

Shell Oil Company hereby respectfully moves for leave

to file the attached brief amicus curiae in this case.

The consent of the attorney for both petitioner and

respondent has been obtained in writing and are attached

to this motion as Attachments A and B.

The interest of Shell Oil Company is that it is a party

to two cases: one in the Eleventh Circuit Court of Appeals

and one in the First Court of Appeals for the State of

Texas where the same issue is present—whether after a

United States District Court has granted a forum non

conveniens dismissal it can and should enjoin any further

proceedings in state or federal courts in the United States.

In the instant case, the respondent’s primary focus

is on the interaction between federal maritime law and

forum non conveniens: however, Shell Oil Company and

Dow Chemical believe the concurring opinion of Chief

Justice Clark in the Fifth Circuit articulates the correct

rule of law and is a logical and appropriate extension of

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 675 S. Ct. 839

(1947) and Piper v. Reyno, 454 U.S. 235, 102 S. Ct.

252 (1981), reh. den. 455 U.S. 928, 102 S. Ct. 1296

(1982). The amicus curiae brief will describe in some

detail how forum non conveniens is being handled prac-

tically in both state and federal courts in real life litigation,

the inefficiency and waste of resources that creates, and

will articulate what the amicus curiae believes is a logical

common sense solution to the problems whch exist in

this area.

Shell Oil Company (Shell) believes that foreign plain-

tiffs are manipulating the selection of the forum, the

defendants named and served, and the removal statute

to eviscerate this Court’s rulings in Gulf Oil Corp. v.

Gilbert, supra, and Piper v. Reyno, supra. Under the

change of venue statute, 28 U.S.C. § 1404, Shell submits

that in cases founded on diversity of citizenship the

district where a case is filed may hear the case or transfer

it in the interests of justice to the most convenient forum

within the United States. If after reviewing the facts

and legal arguments of that case, that court determines

that a foreign forum is the most convenient forum for

litigation of those claims then that finding should be

given preclusive effect within the United States in both

state and federal courts.

Accordingly, Shell requests this Court to accept their

amicus curiae brief in this matter and to consider its

argument which is articulated in the accompanying brief.

Respectfully submitted,

/ “4 eT:

BuRT BALLANFANT rd

SHELL Ort COMPANY

P. O. Box 2463

4794 One Shell Plaza

Houston, Texas 77252

(713) 241-7023

Counsel of Recora

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been

served upon all counsel of record by placing same in the

United States mai postage prepaid and properly ad-

dressed, this 47“ * day of February, 1988.

Lat £4 hg

BurRT BALLANFANT /

ATTACHMENT A

January 5, 1988

Mr. Burt Ballanfant

Shell Oil Company

Litigation Section - Legal Department

One Shell Plaza, Room 4794

Houston, TX 77001

Re: Chick Kam Choo vy. Exxon Corp.,

No. 85-501

In the United States Supreme Court

Dear Mr. Ballanfant:

This is to advise you for purposes of complying with the

Rules of the United States Supreme Court that as counsel

for the plaintiff-petitioner in the above styled action that

I have no objection to your filing an amicus curiae in

the above captioned matter on behalf of Shell Oil Com-

pany and Dow Chemical Company

Very truly yours,

/s/ BENTON MUSSLEWHITE

Benton Musslewhite

609 Fannin, Suite 511

Houston, TX 77002

cc: James Patrick Cooney

ATTACHMENT B

ROYSTON, RAYZOR, VICKERY & WILLIAMS

Attorneys At Law

2200 Texas Commerce Tower

Houston, Texas 77002

Area Code 713-224-8380

Cablegram “Houport”

Telex No. 762-648

Telecopier No. 713-225-9945

December 30, 1987

Benton Musslewhite, Esq.

Law Offices of Benton Musslewhite, Inc.

609 Fannin

Suite 511

Houston, Texas 77002

Chick Kam Choo v. Exxon Corporation

In the United States Supreme Court,

No. 85-505

Our File: 27,416

Dear Mr. Musslewhite:

As we advised by telephone, we have been contacted

by representatives of the Maritime Law Association of

the United States, the defendants in Zipfel v. Halliburton,

Inc. and Shell Oil Company with regard to the possibility

of their filing briefs amicus curiae in the above matter.

We have given our consent to the above request and

would appreciate hearing from you with regard to whether

Petitioners will likewise give their consent.

We look forward to hearing from you.

Very truly yours,

ROYSTON, RAYZOR.

VICKERY & WILLIAMS

By: /s/ JAMES PATRICK COONEY

James Patrick Cooney

cc.

ce.

ee:

ce:

cc:

Honorable Joseph F. Spaniol, Jr.

Clerk of the Supreme Court of

the United States

Office of the Clerk

Washington, D.C. 20543

ATTENTION: SANDY NELSEN,

ASSISTANT CLERK

Joel Klein, Esq.

Onek, Klein & Farr

2550 “M”™ Street, N.W.

Suite 350

Washington, D.C. 20037

John C. McHose, Esq.

Lillick, McHose & Charles

725 South Figueroa Street

Suite 1200

Los Anegeles, California 90017-2513

Michael Marks Cohen, Esq.

Burlingham, Underwood & Lord

One Battery Park Plaza

New York, New York 10004

Graydon §S. Staring, Esq.

L illick, McHose & Charles

Two Embarcadaro Center

San Fransico, California 94111

Burt Bellafant, Esq.

Litigation Department

Shell Oil Company

P. O. Box 2463

Houston, Texas 77252

NO. 87-505

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

CHICK KAM CHOO, et al.,

Petitioners,

Vv.

EXXON CORPORATION, et al.,

Respondents.

INTEREST OF AMICUS CURIAE

Amicus Curiae Shell Oil Company (Shell) is a cor-

poration which has exported goods and services abroad

and from time to time finds itself a party to litigation

based on claims by foreign citizens. During the last five

years, Shell has had first hand experience with a group of

Costa Rican litigants who have repeatedly sought to liti-

gate their claims in the United States. The repetitive re-

argument of essentially the same forum non conveniens

issue ir four different state and federal courts continues

and has cost Shell significant expense, state and federal

courts throughout the United States have experienced un-

necessary disruption of their dockets, and has delayed

the resolution of the claims of these Costa Rican banana

workers while they have pursued the allure of litigating

their claims in the United States for over five years, For

the reasons explained below. this Court could end mud-

dies such as these and encourage prompt resolution of

whether international claims should be brought in the

United States as opposed to the appropriate foreign

forum.

This amicus brief is being filed with the consent of

the parties, whose letters of consent have been filed with

the Clerk of the Court.

SUMMARY OF THE FACTS IN A SERIES OF

LAWSUITS BETWEEN COSTA RICAN BANANA

WORKERS AND DOW CHEMICAL COMPANY

AND SHELL OIL COMPANY

The history of litigation between a group of Costa

Rican banana workers employed by Standard Fruit Com-

pany in Costa Rica and Shell Oil Company and Dow

Chemical Company illustrates the compelling need for a

national forum non conveniens standard and for a dis-

missal based on that standard to be given preclusive

effect throughout the United States. On May 3, 1983,

fifty-eight plaintiff Costa Rican banana workers and their

wives filed an initial action in Dade County Circuit Court

in Florida. None of these plaintiffs were residents of

Florida; the cause of action arose not from exposure to

a product in Florida but from claimed exposure to a

chemical 1,2 dibromo 3 choloropropane (DBCP) on the

Rio Frio Plantation of Standard Fruit Company in Costa

Rica: moreover, neither Dow nor Shell were incorporated

in Florida nor had their principal place of business in

Florida. After the case was removed from Florida Cir-

cuit Court, Shell pursuant to 28 U.S.C. § 1404 filed a

Motion to Transfer to the United States District Court

for the Eastern District of Michigan simultaeously with

a Motion to Dismiss on the basis of forum non con-

veniens. Sibaja, et al. v. Dow Chemical, et al., No. 83-

14798, 11th Circuit Court, Dade County, Fla. See Ap-

pendix A and Appendix B of this brief. The District

Court for the Southern District of Florida never ruled

on Shell's Motion to Transfer, thereby denying it sib

silentio. Judge King considered plaintiffs’ arguments that

forum non conveniens was not recognized in Florida (a

position to which defendants objected) and that under

Frie Railroad v. Tompkins, 304 U.S. 64, 58 S. Ct. 817,

82 L.Ed 1188 (1938), the more restrictive Florida rule

governing forum non conveniens should govern the

United States District Court's consideration of forum non

conveniens and granted defendants’ Motion to Dismiss

on the basis of forum non conveniens. See, Appendix C

of this brief. The Eleventh Circuit Court of Appeals re-

viewed the District Court's forum non conveniens analy-

sis as well as the Erie question and affirmed the lower

court’s opinion. Sibaja, et al. v. Dow Chemical Company,

et al., 757 F.2d 1215 (11th Cir. 1985). The plaintiffs

filed a Petition for Certiorari to this Court which was de-

nied. Sibaja et al. v. Dov’ Chemical Company, et aal.,

cert. denied 474 U.S. 948, 106 S.Ct. 347 (1985).

On April 11, 1984, while the Sibaja case was pending

on appeal, eighty-two new and distinct Costa Rican ban-

ana workers from the same Rio Frio Plantation of Stand-

ard Fruit Company in Costa Rica represented by the

same attorneys filed suit in Harris County District Court

in Houston, Texas alleging almost identical claims against

three defendants: Dow, Shell, and Amvac Chemical Com-

pany (Amvac). Alfaro, et al. v. Dow Chemical Com-

pany, et al., No. 84-17171, 61st Dist. Ct., Harris County,

Texas. See, Appendix D of this brief. Dow removed the

case to the Federal District Court for the Southern Dis-

trict of Texas on May 21, 1984. The Federal District

Court remanded the case to Harris County District Court

on November 30, 1984.

After the remand to Harris County District Court,

both plaintiffs and defendants initiated vigorous discovery

on the forum non conveniens issues. The detailed history

of the Alfaro case discovery illustrates that the problems

a domestic defendant faces of conducting discovery

against foreign parties are not hypothetical but are real

and demanding. This brief discussion illustrates the

lengthy amount of time needed to obtain minimal dis-

covery from foreign plaintiffs on a narrow issue in the

litigation. After the case was remanded to Harris County

District Court, Shell filed certain discovery requests on

each plaintiff on November 14, 1985, in order to deter-

mine the factual basis for the Texas Court's jurisdiction.

The plaintiffs filed a Motion for a Protective Order to

this discovery on December 20, 1985. The District Court

entered an Order compelling the plaintiffs to answer this

discovery on February 28, 1986. An additional set of dis-

covery directed toward jurisdictional issues was served

on cach plaintiff on February 3, 1986. On May 13, 1986,

Shell filed a Motion for Imposition of Sanctions for fail-

ing to comply with the Court’s Order of February 28,

1986. The hearing on that motion was cancelled based

upon a representation by plaintiffs’ attorneys that they

would file answers by the time the deposition of a desig-

nated witness for Standard Fruit Company was taken.

The answers to those discovery requests had still not been

received when that deposition was taken. After some

minimal answers were filed by some of the plaintiffs but

no answers by many of the plaintiffs, Shell filed a new

Motion for Imposition of Sanctions on March 3, 1987.

On April 13, 1987, in the face of Shell's Motion for

Sanctions, forty-seven of the plaintiffs voluntarily dis-

missed their claims against the defendants. See Appendix

E of this brief. Prior to that time, some of the plaintiffs

attempted to cure some of the defects in their discovery

responses. At the time the Alfaro case was dismissed by

the district court, Shell had a Motion for Sanctions pend-

ing against the remaining plaintiffs for failing to have

their answers in proper form for a foreign document, for

having been filed too late, and for incompleteness. While

this history is not directly pertinent to Mrs. Choo’s claim,

it establishes that burdens faced by defendants in ob-

taining proof from parties who live in foreign countries

let alone third party witnesses are real and not merely

hypothetical.

On June 24, 1986, the deposition of the person desig-

nated by Sandard Fruit Company as the most knowledge-

able about the shipments and transportation of DBCP,

was taken in Boca Raton, Florida. The most interesting

testimony developed from these efforts was that Shell's

DBCP product was never used at the Rio Frio Plantation

of Standard Fruit Company and that as of the conclusion

of the discovery taken in the A/faro case, no Shell DBCP

product had ever been traced to Costa Rica by plaintiffs.

The same deposition testimony established that Amvac’s

DBCP product had reached Costa Rica but had been re-

exported. Subsequent to that deposition, the plaintiffs

dismissed Amvac on September 5, 1986 in the Alfaro

case, but continued to prosecute their case against Shell.

Shell believes that the plaintiffs’ decision not to dismiss

Shell is because to dismiss Sheil would make the case

susceptible to being removed to Federal Court. On June

22, 1987, after three years of discovery and briefing

solely on the forum non conveniens issues, the 61st Dis-

trict Court of Harris County, Texas. dismissed the case

on the basis of forum non conveniens. See, Appendix F

to this brief. The plaintifls have appealed that Order to

the First Supreme Judicial District of Texas. Alfaro, et al.

v. Dow Chemical Company, et al., No. 01-87-00700-CV,

First Court of Appeals, Texas.

After the Alfaro case had been filed, another group

of thirty-four plaintifls from the same Rio Frio Planta-

tion of Standard Fruit Company represented by the same

attorneys sued Dow, Shell, and Amvac in the Superior

Court for Los Angeles County, California. Following the

leposition of the designated witness by Standard Fruit

Co. in the Alfaro case. the plaintiffs dismissed Amvac on

September 10, 1986. With the dismissal of the California

resident from the case. Dow removed the case to the

United States District Court for the Central District of

California. Aguilar, et al. v. Dow Chemical Company,

et al.. No. C570052 Los Angeles County Superior Court,

California. See Appendix G of this brief. Following the

removal, the plaintiffs amended their Complaint to add

Dr. Charles Hine and Hine Laboratories, Inc. who are

citizens of California. After attempting to add these par-

tics, the plaintiffs filed a Motion to Remand. Judge

Davies held the removal proper and granted the defend-

ants Motion to Dismiss on the basis of forum non con-

veniens. See, Appendix H to this brief.

The remaining case in this saga was filed on February

4, 1987 in Dade County, Florida. Cabalceta, et al. v.

Standard Fruit Company, et al., No. 87-05102, 11th

Circuit Court, Dade County, Florida. See Appendix I to

this brief. This case was filed on behalf of 212 plaintiffs

which included all of the plaintiffs from Sibaja, Alfaro,

and Aguilar plus some thirty-eight additional plaintiffs.

In addition, the plaintiffs sued four new parties not named

in the prior lawsuits: Standard Fruit Company, Standard

Fruit and Steamship Company, Dole Fresh Fruit, and

Castle and Cook, Inc., who plaintiffs alleged were resi-

dents of Florida. The defendants removed to the United

States District Court for the Southern District of Florida.

The plaintiffs filed a Motion to Remand arguing that

the principal place of business of Standard Fruit Com-

pany and Dole Fresh Fruit was Boca Raton, Florida.

Standard Fruit Company argued the Court lacked juris-

diction over it and that its principal place of business was

other than Florida and Dole Fresh Fruit Company argued

that it was a sham defendant.

The Court on July 21, 1987, after considering all the

arguments, denied the plaintiffs’ Motion for Remand and

granted the defendants’ Motion to Dismiss on the basis of

forum non conveniens. See Appendix J to this brief. As

this was the fourth attempt to prosecute a suit in the

United States and the second suit for almost all the plain-

tiffs, the defendants asked the Court for an injunction

against the plaintiffs enjoining them from filing any more

suits as to these claims in the United States which was

denied on October 16, 1987. The defendants who did

not contest jurisdiction appealed that denial of the re-

quested injunction to the United States Eleventh Cir-

cuit Court of Appeals for the Eleventh Circuit. Cabalceta,

et al. v. Standard Fruit Company, et al., No. 87-5709

(} 1th Cir. 1987).

ARGUMENT

Shell believes that this Court should determine the

question of issue preclusion by judgments of United States

District Courts which have granted dismissal under the

doctrine of forum non conveniens. The facts of the litiga-

tion waged against Shell and Dow for five years by a

common group of foreign claimants represented by the

Same attorneys whose claims arise from the same seminal

facts demonstrate how inefficient and injudicious an ap-

proach to litigation will be allowed to flourish unless this

Court grants the effect of issue preclusion to a ruling

of a United States District Court as to forum non con-

veniens and authorizes federal courts to enforce their

rulings through the granting of injunctive relief. This is

especially appropriate since the only reason all of these

cases are not in federal court is the capriciousness of the

removal statute 28 U.S.C. § 1441.

This issue is one which is arising repeatedly in litiga-

tion in the United States brought by foreign nationals.

See, discussion supra; compare Mizokami Bros. of Ari-

zona, Inc. v. Mobil Chemical Corp., 660 F.2d 712 (8th

Cir. 1981) with Fitzgerald v. Texaco, Inc., 521 F.2d

448 (2nd Cir. 1975), cert. denied, 423 U.S. 1052 (1976)

and Pastewka v. Texaco, Inc., 565 F.2d 851 (3rd Cir.

1977); see also, in Re Ocean Ranger, 617 F.Supp. 435

(D.C. La. 1985). The majority view of lower courts

appears tc support issue preclusion under concepts of

res judicata, Pastewka v. Texaco, Inc., supra or collateral

estoppel, /n Re Ocean Ranger, supra; however, one court

has disagreed with these conclusions and recommended

a different course of action to achieve the same result,

see, Mizokami Bros. of Arizona, Inc. v. Mobay Chemical

Corp., supra. Shell believes that the practice they followed

in Sibaja, et al. v. Dow Chemical Co., et al., supra, serves

as the model of how these cases can be legitimately

reconciled while implementing a sound judicial practice

and doing so with a minimal burden on scarce judicial

resources,

In Sibaja, Shell initially filed a Motion to Transfer

the case pursuant to 28 U.S.C. § 1404(a) in conjunction

with its Motion to Dismiss on the grounds of forum non

conveniens which the District Court overruled sub silentio.

See Appendix B to this brief. This request for transfer

was similar to the transfer that was actually granted in

Alexander, et al. v. Richardson, Merrill, Inc., 541 F.Supp.

93, 96-99 (1982) and In Re Richardson-Merrill, Inc.,

545 F.Supp. 1130 (S.D. Ohio 1982). While not precisely

handling the issue in this fashion, the Court in Mizokomi

Brothers of Arizona, Inc. v. Mobay Chemical Corp.,

supra at 717-719 seems to recommend this course of

action. Shell believes that the most convenient forum

in the United States is established by one of three express

or implied methods: (1) where foreign plaintiffs have

selected a forum and the defendant does not object and

the District Court accepts the venue of the case, as to

that case that forum should be deemed the most con-

venient forum in the United States; e.g., Sibaja, et al. vy.

Dow Chemical Co., et al., supra; (2) where a case is

transferred to a Federal District Court pursuant to 28

U.S.C. § 1404, that Court has been determined to be the

most convenient in the United States, e.g.. In Re Rich-

ardson-Merrill, Inc., supra; or (3) where the multi-district

litigation panel has transferred a body of litigation to a

certain Court, that Court should be deemed the most

convenient forum in the United States. e.g.. In Re Union

Carbide Gas Plant Disaster at Bhopal, India, 809 F.2d

195 (2nd Cir. 1987). Once the most convenient forum

in the United States has been established by implied agree-

ment or judicial order, then that forum can apply the

public and private interest factors set out in Gulf Oil

Corperation v. Gilbert, 330 US. 501. 67 S. Ct. 839,

91 L. Ed. 1055 (1947), and reiterated and extended in

Piper Aircraft Company v. Reyno, 454 US. 235, 102

S. Ct. 252, 70 L.Ed.2d 419 (1981), reh. den. 455 US.

928, 102 S. Ct. 1296 (1982),

In the event the case is dismissed under forum non

conveniens based upon those factors, then the determina-

tion has been made that the foreign forum is superior

to the most convenient forum in the United States. That

determination should not be subject to repetitive relitiga-

tion in the federal or state courts of the United States

when the most appropriate court to address the issue of

forum non conveniens has determined that the foreign

forum is better than the most convenient forum in the

United States.

The remaining issue to be resolved by this Court is

whether that determination can then be enforced by an

injunction against litigation by plaintiffs in state court

and/or the state courts themselves under the All Writs

Statute, 28 U.S.C. § 1651, and is not barred from doing

so under the Anti-Injunction Act, 28 U.S.C. S$ 2283.

Shell believes that federal courts should be empowered

to issue injunctions such as the one issued by the District

Court in Exxon Corp. v. Chick Kam Choo. supra, in

order to effectuate the terms of a District Court’s Order

of Dismissal. There is limited authority on this issue and

to the extent that it exists it was thoroughly discussed in

Exxon Corp. v. Chick Kam Choo, 817 F.2d 307 (Sth

Cir. 1987). However, the Court of Appeals For the Fifth

Circuit below and Professors Wright and Miller have

articulated the belief that if the forum non conveniens

issue remains essentially the same between the federal

court and the state court, an order of dismissal on the

basis of forum non conveniens is the equivalent of a

judgment and issue preclusion is appropriate. See Exxon

Corp. v. Chick Kim Choo, supra, and 18 C. Wright,

A. Miller, E. Cooper, Federal Practice and Procedure:

Jurisdiction § 4226, at 346 (1981). Rule 54, Federal

Rules of Civil Procedure, defines a judgment as “a decree

and any order from which an appeal can be taken.”

Congress passed 28 U.S.C. § 2283 just after Rule 54,

Federal Rules of Civil Procedure, had been promulgated.

There is every reason to believe that Congress when it

passed the Anti-Injunction Act in the same year was using

the term “judgment” with the same meaning as defined

in Rule 54, Federal Rules of Civil Procedure. The Rule

54 definition would clearly encompass orders of dismissal.

A dismissal on forum non conveniens is even more

appropriately within that definition because except for

the oddity of 28 U.S.C. § 1441 which does not permit

removal if a defendant is a citizen of the state in which

the action is brought, all cases between foreign plaintiffs

and American defendants would be in federal court on

the basis of diversity of citizenship. Essentially as sug-

gested by Shell, the determination by the most convenient

forum within the United States that the United States is

not a convenient forum would be a final judgment that

foreign plaintiffs could have no recovery in the United

States. That construction promotes finality of judicial

determinations because it would preclude efforts by plain-

tiffs to manipulate the naming of defendants to avoid

removal under diversity jurisdiction in order to avoid

the preclusive effect of a federal court's determination

of forum non conveniens. Shell's suggested interpretation

which equates an order of dismissal with a final judgment

is consistent with the few cases to attempt to define

judgment in the context of 28 U.S.C. § 2283. Sperry

Rand Corp. v. Rothkin, 288 F.2d 245 (2nd Cir. 1961).

An analysis of the forum non conveniens factors shows

that there should be scant difference between federal

courts and state courts on this issue. In Gulf Oil Corp.

v. Gilbert, supra, the private factors to be considered were:

1. The relative ease of access to proof—this factor

is the same in state and federal courts. It is

arguable that ease of access to proof in a foreign

forum is better in federal court than state court.

Availability of compulsory process for attendance

of unwilling witnesses. This factor is the same

in state and federal courts. Just as is the case

with the first factor it is probably better in federal

courts.

3. The cost of obtaining willing witnesses. This

factor is the same in state and federal courts.

4. Possibility of a view of the premises. This factor

is the same in state and federal courts.

‘nn

All other practical problems. There is no reason

to believe these would be different in state courts

from federal courts.

In Gulf Oil Corp. v. Gilbert, supra, the public factors to

be considered are:

1. Congestion of the Courts—This is potentially a

different issue in state court than in federal court

but in practical terms it is probably about the

same in state and federal courts in the same

geographic location. Formal analysis may suggest

that it is actually better in the Federal Courts

which in many jurisdictions are less congested:

therefore, if the case adversely affects the conges-

tion of the federal court docket it would create

an even worse situation in state courts.

2. Imposition of jury duty on a forum which has no

relation to the litigation. This is the same in state

and federal courts.

3. The difficulty of applying foreign law. This is the

same in state and federal courts and may be

worse in state courts because they generally have

less staff to analyze foreign law and to make

translations if required.

Even a cursory review of the Gilbert factors shows that

the case issues between state and federal court are essenti-

ally the same. Accordingly issue preclusion is in order as

this is the kind of issue preclusion that the Pastewka Court

felt was covered by the Resiatement of Judgments in § 13

and to which Professors Wright and Miller felt that issue

preclusion should apply.

CONCLUSION

Shell submits that this Court should apply a scheme

whereby the most convenient forum in the United States

should decide the initial forum non conveniens issue and

then that Court should be allowed to effectuate its judg-

ment through an injunction.

Respectfully submitted,

bute hbded

BUR Lhe alin’/ \NFANA

Suectt On Company

P.O. Box 2463

4794 One Shell Plaza

Houston. Texas 77252

(713) 241-7023

Counsel of Record

CERTIFICATE OF SERVICE

| heredy certify that a copy o: the foregoing has been

erved upon all counse! of record by placing same in the

United States migy. postage prepaid and properly ad-

dressed. this {?' — day of February, 1988.

BuRT BALLANFAN1

APPENDIX

APPENDIX A

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT IN AND FOR

DADE COUNTY, FLORIDA

CASE NO. 83-14798

PLAINTIFFS’ ORIGINAL COMPLAINT

JURY TRIAL DEMANDED

SAUL MUNOZ SIBAJA and

RAFAELA ARRIETA PORRAS,

ROBRETO CERDA AGUILAR and

SINAI TORRES ROSALES,

VICENTE FLORES VALVERDE and

MARIA MAYELA VEGA FIGUREROA,

BOLIVAR ARIAS MORA,

ALFONSO CAMPOS RODRIGUEZ and

MARIA JIMENEZ BENAVIDES,

JUAN BAUTISTA VASQUEZ and

MARIA ISABEL CHAVARRIA SALAS,

VICTOR SOLIS ROJAS and

ROSA BADILLA PEREZ,

MIGUEL CHAVARRIA ZUNIGA,

JOAQUIN ZAMORA ARRIETA

TACITO CAMPOS GARCIA and

YAMILETH NURIS VILLEGAS DIAZ,

SEGUNDO RODRIGUEZ RODRIGUEZ and

MARY ELIZONDO UMANA,

ELIECER ACOSTA MONTERO and

EMMA JIMENEZ RAMIREZ,

MANUEL CHAVES NUNEZ and

MIREYA RODRIGUEZ RODRIGUEZ,

CARLOS GARITA SANDI and

MELITINA GONZALES,

EDWIN GOMEZ CASTRILLO and

ODILI TORRES ACUNA,

MAGIN FERNANDEZ GARCIA and

PAULA CORTEZ GOMEZ,

NEFTALI ARAYA GARITA and

LEDA ESPINOZA GAMBOA,

MARGARITO ZUNIGA GUTIERREZ and

ANAIS SANCHEZ ROJAS,

DANIEL LORIA MORERA and

PEIRA BERTA NAVARRETE TORRES,

MIGLEL ZUNIGA PENA and

MARIA DE LA CRUZ GONZALES GONZALES,

ISAIAS SANCHEZ RIVERA and

FIDELIA ALVARADO SOLORZANO,

ALGUSTO LEITON RODRIGUEZ and

MERCEDES RODRIGUEZ ARRIETA,

ANGEL LOBO ROJAS and

MARGOT VARELA RAMIREZ,

CASAMIRO LOPEZ SANDOVAL and

ALEJANDRINA VEGA VILLALOBOS,

JOSE SOSSA SOSSA and

FLORY ALFARO JIMENEZ,

ANTONIO GUTIERREZ ZUMBADO and

MARIA DE LOS ANGELES,

GERARDO PERAZA GARRO and

NELLY UMANA ARIAS,

ELIAS HERNANDEZ BADILLA,

BENEDICTO CAMPOS CORRALES,

MARIO SOLANO JIMENEZ,

BOLIVAR ARIAS MORA,

PEDRO JIMENEZ MURILLO,

JOSE GAMBOA RODRIGUEZ,

RODRIGO GARITA SANDI,

versus

DOW CHEMICAL COMPANY and

SHELL OIL COMPANY

COME NOW Plaintiffs, and files this their Original

Complaint against the Defendants and allege as follows:

1. This is an action for damages in excess of the sum

of Five Thousand and No, 100 ($5,000.00) Dollars.

2. Plaintiffs are citizens and residents of Costa Rica.

The Defendants are doing business in, and are residents

of Dade County, Florida. Therefore, venue is proper in

Dade County under F.S.A. § 47.051.

3. Defendant DOW CHEMICAL COMPANY is a

Delaware corporation qualified to transact business in

the State of Florida. Service of process on such Defendant

is predicated on F.S.A. § 48.081(3) and F.S.A. § 48.091.

Defendant's resident agent for service of process pursuant

to § 48.091 is C. T. Corporation System, 8751 W. Brow-

ard Boulevard, Plantation, Florida 33324.

4. Defendant SHELL OIL COMPANY is a Delaware

corporation qualified to transact business in the State of

Florida. Service of process on such Defendant is predi-

cated on F.S.A. § 48.081(3) and F.S.A. § 48.091. De-

fendant’s resident agent for service of process pursuant

to § 48.091 is C. T. Corporation System, 8751 W.

Broward Boulevard, Plantation, Florida 33324.

5. This cause of action is predicated on products lia-

bility theories of strict liability, implied warranty and neg-

ligence, as more specifically alleged herein. The products

complained of are nematocides containing the chemical

dibromochloropropane, commonly known as DBCP. The

product manufactured, sold and distributed by the De-

fendant DOW CHEMICAL COMPANY is marketed un-

der the trade name “Fumizone.” The product manufac-

tured by the Defendant SHELL OIL COMPANY is mar-

keted under the trade name “Nemagon.”

6. Plaintiffs SAUL MUNOZ SIBAJA, ROBERTO

CERDA AGUILAR, VICENTE FLORES VALVER-

DE, BOLIVAR ARIAS MORA, ALFONSO CAMPOS

RODRIGUEZ, JUAN BAUTISTA VASQUEZ, VIC-

TOR SOLIS ROJAS, MIGUEL CHAVARRIA ZUN-

IGA, JOAQUIN ZAMORA ARRIETA, TACITO CAM-

POS GARCIA, SEGUNDO RODRIGUEZ RODRI-

GUEZ, ELIECER ACOSTA MONTERO, MANUEL

CHAVES NUNEZ, CARLOS GARITA SANDI, ED-

WIN GOMEZ CASTRILLO, MAGIN FERNANDEZ

GARCIA, NEFTALI ARAYA GARITA, MARGAR-

ITO ZUNIGA GUTIERREZ, DANIEL LORIA MOR-

ERA, MIGUEL ZUNIGA PENA, ISAIAS SANCHEZ

RIVERA, AUGUSTO LEITON RODRIGUEZ, ANGEL

LOBO ROJAS, CASIMIRO LOPEZ SANDOVAL.

JOSE SOSSA SOSSA, ANTONIO GUTIERREZ ZUM-

BADO, GERARDO PERAZA GARRO, ELIAS HER-

NANDEZ BADILLA, BENEDICTO CAMPOS COR-

RALES, MARIO SOLANO JIMENEZ, PEDRO JIME-

NEZ MURILLO, JOSE GAMBOA RODRIGUEZ,

RODRIGO GARITA SANDI, allege that they were ex-

posed to Fumizone and Nemagon and, as a result thereof,

have suffered serious and permanent personal injuries in-

cluding, but not limited to, loss of reproductive function.

NEGLIGENCE

7. The illnesses and disabilities of said Plaintiffs are a

direct and proximate result of the negligence of each De-

fendant in that said Defendants produced, sold and/or

otherwise put into the stream of interstate and interna-

tional commerce, DPCP-containing materials which the

Defendants knew, or in the exercise of ordinary care

ought to have known, were deleterious and highly harm-

ful to said Plaintiffs’ health and well being. The Defend-

ants were negligent in one, some and/or all of the fol-

lowing respects, among others, same being the proximate

cause of said Plaintiffs’ illnesses and disabilities:

(a) In failing to adequately warn Plaintiffs of the

dangerous characteristics of DBCP;

(b) In failing to provide Plaintiffs with information

as to what would be reasonably safe and sufficient wear-

ing apparel and proper protective equipment and appli-

ances, if in truth there were any, to protect Plaintiffs from

being harmed and disabled by exposure to DBCP;

tainers of said DBCP-containing materials to warn of the

dangers to health of coming into contact with said DBCP;

(d) In failing to take reasonable precaution or exercise

reasonable care to publish, adopt and enforce a safety

plan and a safe method of handling and applying DBCP;

(e) In failing to develop and utilize a substitute ma-

terial for DBCP in the aforesaid nematocides;

(f) In failing to test DBCP prior to releasing these

products for sale; and

(g) In conceaning the results of any tests conducted

on DBCP by Defendants, if in fact either Defendant ever

tested its DBCP-containing products.

STRICT LIABILITY

8. All of the allegations contained in the previous

paragraphs are realleged herein.

9. The DBCP-containing products that were used and

applied by Plaintiffs were designed and manufactured by

Defendants and subsequently sold, directly and indirectly,

to the various employers of Plaintiffs. Said products left

the hands of Defendants in a defective and unreasonably

dangerous condition in the following respects:

(a) said DBCP-containing products did not contain

an adequate and timely warning regarding the serious

health health hazards associated with DBCP;

(b) said products did not contain an adequate and

timely warning to the effect that protective equipment

should be used when working with DBCP;

contained DBCP although a substitute for this chemical

was available at all times material to this litigation.

(d) said products were defectively designed in that

they did not contain an adequate and timely warning

concerning the hazards of DBCP and the need for safety

precautions when using DBCP;

(e) said products were unreasonably dangerous per se.

10. Each Defendant is and/or was engaged in the busi-

ness of manufacturing and/or distributing such DBCP-

containing products and these products, without substan-

tial change in condition after they were sold, were a

producing cause of the damages sustained by Plaintiffs.

11. Plaintiffs were unaware of the dangerous propens-

ities of the products which rendered them unsafe for their

intended use. Plaintiffs used the aforementioned products

in a manner that was reasonably anticipated by the De-

fendants. Further, during the periods that said Plaintiffs

were exposed to the products of the Defendants, said

products were being utilized in a manner which was in-

tended by Defendants.

IMPLIED WARRANTY

12. All of the allegations contained in the previous

paragraphs are realleged herein.

13. The Defendants impliedly warranted that their

DBCP-containing products were of good and merchant-

able quality and fit for their intended use.

14. The Plaintiffs would show that they worked in close

proximity to the DBCP-containing products of the De-

fendants and their presence was known or ought to have

been reasonably anticipated by the Defendants. The im-

plied warranty made by the Defendants that their afore-

said products were of a good and merchantable quality

and were fit for their particular intended use was breached

in that Plaintiffs’ work with Defendants’ products caused

them to be exposed to DBCP and to be injured as a proxi-

mate result thereof.

EXEMPLARY DAMAGES

15. The Plaintiffs would show that the damages in-

curred as described herein were directly and proximately

caused by the willful, malicious and intentional commis-

sion and omissions, conscious indifference, and utter dis-

regard for the welfare of the said Plaintiffs on the part

of the Defendants herein, their agents, servants, employees,

managers, superintendants, supervisors, and officers in

that they ignored and concealed evidence available to

them which indicated thet DBCP and DBCP-containing

materials were harmful and deadly to persons coming in

contact with said materials. Consequently, users of DBCP-

containing products, such as Plaintiffs, were deprived of

the opportunity of free choice as to whether or not to

expose themselves to the DBCP-containing products

manufactured by Defendants. Plaintiffs would show that

a8 a result of the conduct of Defendants as aforesaid, they

should be awarded an amount that would punish Defend-

ants and act as a deterrent to Defendants and others from

the commission of similar wrongs.

COMPENSATORY DAMAGES

16. As a direct and proximate result of Defendants

tortious conduct as aforesaid, Plaintiffs, SAUL MUNOZ

SIBAJA, ROBERTO CERDA AGUILAR, VICENTE

FLORES VALVERDE, BOLIVAR ARIAS MORA, AL-

FONSO CAMPOS RODRIGUEZ, JUAN BAUTISTA

VASQUEZ, VICTOR SOLIS ROJAS, MIGUEL CHA-

VARRIA ZUNIGA, JOAQUIN ZAMORA ARRIETA,

TACITO CAMPOS GARCIA, SEGUNDO RODRI-

GUEZ RODRIGUEZ, ELIECER ACOSTA MONTERO,

MANUEL CHAVES NUNEZ, CARLOS GARITA SAN-

DI, EDWIN GOMEZ CASTRILLO, MAGIN FERNAN-

DEZ GARCIA, NEFTALI ARAYA GARITA, MAR-

GARITO ZUNIGA GUTIERREZ, DANIEL LORIA

MORERA, MIGUEL ZUNIGA PENA, ISAIAS SAN-

CHEZ RIVERA, AUGUSTO LEITON RODRIGUEZ,

ANGEL LOBO ROJAS, CASIMIRO LOPEZ SANDO-

VAL, JOSE SOSSA SOSSA, ANTONIO GUTIERREZ

ZUMBADO, GERARDO PERAZA GARRO, ELIAS

HERNANDEZ BADILLA, BENEDICTO CAMPOS

CORRALES, MARIO SOLANO JIMENEZ, PEDRO

JIMENEZ MURILLO, JOSE GAMBOA RODRIGUEZ,

RODRIGO GARITA SANDI, have developed sexual and

reproductive abnormalities and other related conditions

and have been damaged in the following particulars for

all of which suit is herein brought:

(a) Said Plaintiffs have suffered great physical pain

and mental anguish and will continue to suffer great pain

of body and mind throughout their lifetime:

(b) Plaintiffs have incurred and will continue to incur

hospital, medical, pharmaceutical and other expenses in

the future due to their exposure to Defendants’ aforesaid

products;

hood of developing cancer as a result of their exposure

to DBCP-containing products manutactured, sold and/or

distributed by the named Defendants;

10a

(d) Plaintiffs suffer an extraordinarily increased risk

of genetic damage as a result of their exposure to Defend-

ants’ aforesaid products;

(e) Plaintiffs will suffer a loss of earning capacity due

to their exposure to said DBCP-containing products;

(f) Plaintiffs will incur expenses for domestic help and

nursing care in the future due to their exposure to Defend-

ants’ aforesaid products;

(g) Plaintiffs have lost the capacity to enjoy a full and

normal life and will continue to suffer such loss in the

future due to their exposure to Defendants’ aforesaid

products;

(h) Plaintiffs, SINAL TORRES ROSALES, ODILI

TORRES ACUNA, PAULA CORTEZ GOMEZ, YAMI-

LETH NURIS VILLEGAS DIAS, LEDA ESPINOZA

GAMBOA, NELLY UMANA ARIAS, ANAIS SAN-

CHEZ ROJAS, EMMA JIMENEZ RAMIREZ, PETRA

BERTA NAVARRETE TORRES, MIREYA RODRI-

GUEZ RODIGUEZ, MARIA DE LA CRUZ GON-

ZALEZ GONZALEZ, FIDELIA ALVARADO SOLO-

RAZANO, MARIA JIMENEZ BENAVIDES, MER-

CEDES RODRIGUEZ ARRIETA, MARY ELIZONDO

UMANA, MARGOT VARELA RAMIREZ, ROSA BA-

DILLA PEREZ, MELITINA GONZALES, ALEJAND-

RINA VEGA VILLALOBOS, RAFAELA ARRIETA

PORRAS, FLORY ALFARO JIMENEZ, MARIA MAY-

ELA VEGA FIGUREROA, MARIA ISABEL CHAVAR-

RIA SALAS and MARIA DE LOS ANGELES, have

suffered and will continue to suffer the loss of their hus-

bands’ services, consortium, financial support and the care

and comfort of their society because of their said injuries

and disabilities, and said wives will incur expenses for

lla

medical and nursing attention rendered to their said hus-

bands in the future.

WHEREFORE, PREMISES CONSIDERED, Plaintiffs

demand judgment against the Defendants, and each of

them, jointly and severally, for general and special dam-

ages and punitive damages, for their costs expended herein,

and for interest on said judgment from the date thereof

until paid, at the legal rate, and for such other and further

relief, both at law and in equity, to which the Plaintiffs

may show themselves justly entitled.

Respectfully submitted,

FREDERICK M. BARON &

ASSOCIATES

A Professional Corporation

1050 Dallas Fed. Savings Tower

Dallas, Texas 75225

(214) 369-3605

By: /s/ RUSSELL W. BUDD

Russell W. Budd

AND

ROBLES & ROBLES

Attorneys at Law

Suite 401

75 S.W. 8th Street

Miami, Florida 33130

By: .‘s/ LOUIS S. ROBLES

Louis S. Robles

l2a

IN THE CIRCUIT COURT OF THE 11TH

JUDICIAL CIRCUIT IN AND FOR DADE

COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO. 83-14798

SAUL MUNOZ SIBAJA and

RAFAELA ARRIETA PORRAS, et al..

Plaintiffs,

Vv.

DOW CHEMICAL COMPANY and

SHELL OiL COMPANY,

Defendants.

COMES NOW, MANUEL QUINTANA, duly ap-

pointed process server in the above referenced case and

files this his Affidavit of Service of the following items:

Complaint and Summons

Copy of Notice of Serving Interrogatories to DOW

CHEMICAL COMPANY and SHELL OIL COM-

PANY. An Original and one copy of First Set of

Interrogatories served on SHELL OIL COMPANY.

One copy of Interrogatories served on DOW CHEM-

ICAL COMPANY.

in the above captioned cased on, SHELL OIL COM-

PANY, and states:

1. That a copy of the foregoing items came into his

hand on the 3rd day of May, 1980, and that he executed

the same in Broward County, Florida at 1:35 P.M. on

5-3-83, by delivering a true copy of the original thereof

13a

with date and hour of service thereon to: C.T. Corpora-

tion System, 8751 W. Broward Blvd., Plantation, Florida.

/s/ MANUEL QUINTANA

/s/ SUSANA SIVES

Notary Public

Subscribed and sworn to before me

this 3rd day of May, 1983.

My Commission Expires:

Notary Public State of Florida at Large

My Commission Expires Nov. 19, 1984

Bonded thru General Ins. Underwriters

l4a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE SOUTHERN DISTRICT

OF FLORIDA

CASE NO. 83-1347-Civ-JLK

SAUL MUNOZ SIBAJA and

RAFAELA ARRIETA PORRAS, et al..

Plaintiffs,

Vv.

DOW CHEMICAL COMPANY and

SHELL OIL COMPANY,

Defendants.

MOTION TO DISMISS OR, IN ALTERNATIVE,

MOTION TO TRANSFER

COMES NOW the Defendant, SHELL OIL COM-

PANY, by and through its undersigned counsel, and files

this Motion to Dismiss on the ground of forum non-

conveniens and in the alternative files this further Motion

to Dismiss for improper venue pursuant to § 1404(a)

of Title 28 USC. The factors supportive of these alterna-

tive motions will be hereinafter set forth and supported

by affidavits submitted herewith, if available. or to be

followed as promptly as possible if currently unavailable.

The determinative factors supportive of both motions are

generally similar in nature, both in relationship to the

private interest of the parties and the public interest.

Such factors, as applied to the subject litigation, reflect

the following:

15a

1. Each individual plaintiff (exclusive of those who

may be asserting derivative claims only) was allegedly

exposed to one or both products complained of in Costa

Rica, and alleges resulting injuries or damages occurring

in Costa Rica. Each plaintiff is a citizen and resident of

Costa Rica and an alien with respect to the United States.

2. Relevant and significant factors in the defense of

the subject cause will include the following:

a. Identification of the particular product in use.

b. The place of alleged exposure, ie. marketing,

transportation, distribution or use.

¢. Method of application and resulting exposure,

i.e. use, inadvertent exposure through employ-

ment or as bystander.

d. Awareness of and/or reaction to warnings as

to proper and appropriate use.

e. Causation between exposure and alleged in-

juries or damages.

f. Use of protective devices.

3. The foregoing factual circumstances will be deter-

m.ned by witnesses in the nature of the plaintiffs themselves,

vendors and purchasers of the alleged product, employers,

supervisors, co-employees, treating or examining physi-

cians, hospital personnel, families and friends, all of whom

are residents of Costa Rica.

4. Critical to portions of the foregoing factual cir-

cumstances will be documentary evidence in the nature

of shipping records, purchase records, business records of

employers, medical records and hospital records, all of

which are situated, if available, in Costa Rica.

16a

5. That compulsory process to obtain any and all of

the foregoing evidence. through deposition, production or

appearance at trial, is available only in Costa Rica and

would be unavailable in the Southern District of Florida.

6. That were such evidence available through the

voluntary appearances of potential witnesses in the South-

ern District of Florida. the cost involved therein would

be significant and substantial if not prohibitive.

7. That those witnesses relating to the production,

marketing and sale of the involved product at the prin-

cipal place of business of this Defendant in Houston,

Texas. will be as readily available to a forum within

Costa Rica as Miami, Florida, at no greater if not less

cost and expense.

8. That documentary production, as required, from

this Defendant's principal place of business can be ac-

complished with equal ease and practicality within Costa

Rica as Miami, Florida.

9. That this cause will be governed by the laws of

Costa Rica pursuant to the Florida significant contact

principle with which laws the courts of Costa Rica have

far greater familiarly.

10. That the public interest relating to the Southern

District of Florida with respect to the congestion of the

docket and burdens upon local citizens serving as jurors

are contraindicative to the resolution of disputes arising

in foreign countries between aliens or citizens of a foreign

country and citizens of states other than Florida.

11. That both Defendants are subject to and/or will

submit to the jurisdiction of the judicial system within

Costa Rica.

17a

12. That the judicial system of Costa Rica recognizes

both joint and several liability as to all joint tortfeasors

including vicarious liability for acts of agents and em-

and including strict liability of owners or operators

of industrial facilities and further provides for the award

of compensatory damages arising from either an inten-

tional or negligent tort.

13. That in the defense of the subject litigation,

pursuant to the potential liability of other parties in the

nature of distributors, employers, supervisors or other

persons or entities who may have a legal liability to one

or more of the plaintiffs herein referable to their alleged

use and/or exposure of the subject products, third party

claims for contribution may well exist and can be asserted

only through process issued and served in Costa Rica

t to the Costa Rican judicial system where such

potential third party defendants reside and where the

alleged causes of action supportive of such third party

claims accrued.

Based on the foregoing factors, it affirmatively and

clearly appears that the private interests of the parties,

witnesses and this court including access to sources of

proof, availability of compulsory process for attendance

of unwilling witnesses, service of third-party claims, costs

of obtaining attendance of willing witnesses and familiarity

with applicable law require that this cause be dismissed

and litigated in Costa Rica, and the public interests

relating to the congested docket of this Court and result-

ing local burden upon the citizenry of this district with

respect to jury service require the dismissal of this cause.

Were this Court to deny the foregoing Motion to Dis-

miss or defer ruling thereon, as an alternative, this De-

18a

fendant urges, pursuant to § 1404(a) of Title 28 USC.

a transfer of this cause to U.S. District Court for the

Eastern District of Michigan, Northern Division. upon

the following grounds:

1. This action could have been brought in this pro-

posed transferee forum in that the Defendant, DOW. has

its principal place of business and is doing business there-

in, and the Defendant. SHELL is engaged in and doing

business within the District.

2. That sources of proof in the nature of witnesses

and documentary evidence of DOW pertaining to its

product and the marketing thereof is available within the

transferee district and will be more readily accessible

than the Southern District of Florida.

3. That witnesses and documentary evidence pertain-

ing to SHELL’S product although primarily within the

State of Texas at its principal place of business in Hous-

ton will be equally available within the transferee dis-

trict as within the Southern District of Florida.

4. The choice of law rule within the State of Florida

is predicated upon the significant contact principle and

pursuant thereto, the law of Costa Rica will apply. The

transferee district will be equally capable of applying

such foreign law as would the Southern District of Florida.

5. That the Southern District of Florida bears abso-

lutely no relationship whatsoever to the cause of action,

contains neither witnesses nor documents referable to the

products involved herein or the alleged damage resulting

from their use and would require all witnesses and all

documentary evidence to be produced at a locale far

19a

removed from the location of either such witnesses or

documents.

6. The court docket of the Southern District of Florida

in the nature of the known congestion is contraindicative

to the resolution of this dispute between citizens and

residents of a foreign country and corporations with their

principal places of business within the States of Michigan

and Texas.

7. That the community of South Florida from which

jurors would be drawn for any trial of the subject pro-

tracted litigation has absolutely no relationship to the

dispute, and it would be an undue burden to impose

upon such community a trial of the obvious duration that

would be required in a complex product liability case

of this nature involving 58 claimants.

Based on the foregoing factors, it affirmatively and

clearly appears as between the Southern District of Florida

and the Eastern District of Michigan that the private

interests of the parties, witnesses and the court including

access to sources of proof, availability of compulsory

process for attendance of unwilling witnesses, costs of

obtaining attendance of willing witnesses and familiarity

with applicable law requires that this cause be transferred

to the Eastern District of Michigan and the public in-

terests relating to the congested docket of this Court

and the resulting local burden that would be imposed

upon the citizenry of this district absent any local interest

in the dispute whatsoever further requires the transfer

of this cause to the Eastern District of Michigan.

20a

WE HEREBY CERTIFY that a copy of the above

and foregoing was mailed this 2nd day of June, 1983,

to the attorneys on the attached list.

FOWLER, WHITE, BURNETT,

HURLEY, BANICK &

STRICKROOT, P.A.

Attorneys for Shell Oil Co.

25 W. Flagler St.

Miami, Florida 33130

(305) 358-6550

By: /s/ HENRY BURNETT

Henry Burnett

2la

STATE OF FLORIDA _)

COUNTY OF DADE )

BEFORE ME, the undersigned authority personally

appeared, HENRY BURNETT, who, being duly sworn

deposes and says:

1. That he is a member of the firm of FOWLER,

WHITE, BURNETT, HURLEY, BANICK & STRICK-

ROOT, P.A., attorneys of records for SHELL OIL COM-

PANY herein, and upon information and belief, the fac-

tual information set forth above is true and correct.

FURTHER AFFIANT SAYETH NOT.

/s/ HENRY BURNETT

Henry Burnett

Sworn to and subscribed

before me this 2nd day

of June, 1983.

/s/ GLORIA M. KIGUES

NOTARY PUBLIC, State of

Florida at Large

My Commission Expires: February 5, 1984.

Bonded thru Maynard Bonding Agency

22a

LIST OF COUNSEL

Frederick M. Baron, Esq.

FREDERICK M. BARON & ASSOCIATES

1050 Dallas Federal Savings Tower

Dallas, Texas 75225

Attorneys for Plaintiffs

Louis S. Robles, Esq.

ROBLES & ROBLES

Suite 401

75 S.W. 8th Str.

Miami, Florida 33130

Attorneys for Plaintiffs

Edward Corlett, Esq.

CORLETT, KILLIAN, HARDEMAN,

McINTOSH & LEVI

116 West Flagier Street

Miami, Florida 33130

Attorney for Defendant, DOW CHEMICAL CO.

23a

IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE SOUTHERN DISTRICT

OF FLORIDA

CASE NO. 83-1347-Civ-JLK

SAUL MUNOZ SIBAJA and

RAFAELA ARRIETA PORRAS., et al...

Plaintiffs,

Vv.

DOW CHEMICAL COMPANY and

SHELL OIL COMPANY.

Defendants.

AFFIDAVIT

STATE OF FLORIA )

COUNTY OF DADE )

CHARLES G. DeLEO, a member of the law firm of

Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A..,

gives the following Affidavit:

I, CHARLES G. DeLEO, swear that I am an attorney,

educated in civil law, having studied law in a civil law

jurisdiction. I have personally researched the laws of

Costa Rica, and translated them from Spanish to English.

I am both fluent in Spanish, and have familiarity with

the legal systems of the Latin American States, having

been employed by a law office in Latin America. I am

currently a member of the Florida Bar.

24a

I have reviewed the motion and memorandum of Shell

Oil Company to dismiss or in the alternative to transfer,

said motion dated June 2, 1983. and the representations

therein pertaining to the fact and substance of Costa

Rican law are true and accurate.

/s/ CHARLES G. DeLEO

Charles G. Delco

SWORN TO AND SIGNED in my presence this 2nd

day of June, 1983.

‘s/ SUSAN A. WAXMAN

NOTARY PUBLIC,

State of Florida

My commission expires: September 9, 1988.

Bonded thru Maynard Bonding Agency

25a

CERTIFICATE OF SERVICE

WE DO HEREBY CERTIFY that a true and correct

copy of the above and foregoing Affidavit of Charles G

DeLeo was mailed this 2nd day of June, 1983, to:

Frederick M. Baron, Esq., Frederick M. Baron & Assoc..

1050 Dallas Federal Savings Tower, Dallas, Texas 75225:

Louis S. Robles, Esq., Robles & Robles, Suite 401, 75

S.W. 8th Street, Miami, Florida 33130 and Edward

Corlett, Esq., 116 West Flagler Street, Miami, Florica

33130.

FOWLER, WHITE, BURNETT,

HURLEY, BANICK &

STRICKROOT, P.A.

Attorneys for Shell Oil Co.

501 City National Bank Building

25 West Flagler Street

Miami, Florida 33130

TEL: 305/358-6550

Thomas F. Martin |

26a

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 83-1347-CIV-JLK

SAUL MUNOZ SIBAJA and

RAFAELA ARRIETA PORRAS, et al.

Plaintiffs,

Vv.

DOW CHEMICAL COMPANY and

SHELL OIL COMPANY

ORDER DISMISSING CAUSE

THIS CAUSE comes before the Court upon the De-

fendants’ Motions to Dismiss.

In support of their motions to dismiss the Defendants

have argued that this cause should be dismissed on the

ground of forum non conveniens, In support of that argu-

ment, they have asserted:

|. that each individual plaintiff was allegedly ex-

posed to the product in question in Costa Rica;

2. that the evidence and witnesses, including all of

the 58 Plaintiffs, are primarily located in Costa Rica;

}. that most of this evidence and these witnesses

would not be subject to the compubory process of

this Court;

27a

4. that even if such evidence and witnesses were

made available voluntarily, the cost involved would

be substantial;

5. that the witnesses and evidence within the United

States are in places other than the Southern District

of Florida and so would be just as obtainable in

Costa Rica as in Florida;

6. that the Florida law of conflicts would apply the

Costa Rican substantive law, which is in a foreign

language unfamiliar to this Court;

7. that this cause of action has no contact with the

Southern District of Florida and that the Public in-

terest in providing a forum in Florida is out weighed

by the costs of court congestion and jury duty;

8. that the judicial system of Costa Rica does pro-

vide a forum and a remedy for the Plaintiffs and

both Defendants are subject to the jurisdiction of

the Costa Rican judicial system or will submit to

that jurisdiction;

9. and, that the application of the doctrine of forum

non conveniens is within the sound discretion of the

Court.

For support of their argument, the Defendants rely on

Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), and

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).

In their response to the motion to dismiss the Plain-

tiffs’ argue that a major objective of Erie Railroad Co. v.

Tompkins, 304 U.S. 64 (1938), was to avoid the unequal

administration of the laws and the forum shopping that

had previously been caused by the diversity jurisdiction

28a

of the Federal Courts. The Plaintifls argue that to facili-

tate this objective the Erie Court attempted to minimize

the variations between state and federal law as it would

be applied in diversity cases. The argument then asserts

that under Florida law this action could not be dismissed

on the ground of forum non-conveniens because the De-

fendants are residents of Florida.

Because the doctrine of forum non-conveniens would

not be available in this case if it were in State Court the

Plaintiffs’ would have this Court distinguish this case from

Piper Aircrait Co, v. Reyne, 454 U.S. 235 (1981), relied

on by the Defendants, and then applying the Florida Law

of forum non-conveniens. The distinction that the Plain-

tiffs would have this Court make is that in Piper the state

law of forum non conveniens was the same as the federal

law of non conveniens while that is not the situation here.

The Court, having considered the arguments of the

parties and being fully advised, finds that the law as stated

in Piper Aircraft, 454 U.S. 235, and Gilbert, 330 US.

501, governs this case. The Court finds further that appli-

cation of the factors listed in Piper Aircraft and Gilbert to

the case at bar requires that the motions to dismiss be

granted.

The doctrine of forwm non conveniens is simply a tool

that a court may use to resist imposition upon its juris-

diction even when jurisdiction is authorized by the letter

of the law. General venue statutes are generally drawn to

allow a plaintiff a choice of forums and Plaintiffs may be

tempted to abuse their right to choose, Gilbert, 330 U.S.

at 507, While the Plaintiffs choice of forums is usually

assumed to be a convient forum, that assumption is less

reasonable and entitled to less weight when the Plaintiff

29a

is foreign. Piper Aircraft, 102 S. Ct. at 266. The deter-

mination of the forum non conveniens question is within

the sound discretion of the trial court and when it is based

on a reasonable consideration of the Gilbert factors, it

will not be disturbed. Piper Aircraft, 102 S. Ct. at 266.

The pertinent factors for consideration, as detailed in

Gilbert, are:

1. the private interests of the litigants:

a. the relative ease of access to sources of proof;

c. the cost of obtaining the attendance of witnesses;

4. the sbiliey of viewinn the '

e. and, all other practical problems that make trial

of a case easy, expeditious and inexpensive;

2. the public interest:

a. congestion of the court ddcket;

b. the burden of jury duty for a case that has little

or no relation to the community;

¢. the application of the law by a forum that is

femiliar with the law which governs the case.

Gilbert, 330 U.S. at S08.

In addition, the Court in Piper Aircraft considered the

availability of an alternative forum that could exercise

jurisdiction and offer the Plaintiffs a remedy: the inability

to implead potential third party defendants in one jurisdic-

tion; and, the added burden imposed on the Defendant

as compared to the added convenience to be realized by

the Plaintiffs. 102 S. Ct. 252.

30a

Applying these considerations to the case at bar, the

Court finds that the considerations overwhelming weigh in

tavor of dismissal. The private interests are hampered in

nesses are in Costa Rica and none are in Florida and

compulsory process would not be to compel

production of this evidence or the attendance of these

witnesses. The cost of obtaining the evidence from Costa

Rica would be substantial, if possible. The Defendants

would not be able to rmplead potential third party defend-

ants located in Costa Rica in this action in Florida. And,

as was the case in Piper Aircraft, the Plaintiffs have not

offered any specific reason showing the convenience of

their choice.

As to the pubhe interest factors, this case is essentially

fifty eight different law suits with different elements of

damoages. neghgence. contributory negligence etc. It could

not help but congest this Court's docket more than it

would that of a Court at the situs of the injury simply

because of the logistics of dealing with fifty eight different

Plaintills at this distance. It would force the Court to

conduct a complex exercise in comparative law and 'con-

sider a foreign law with which the Court is not familiar

and which ts in a foreign language. The avoidance of such

comparisons is one of the objectives of the doctrine of

forum non conveniens. Piper Aircraft, 102 §. Ct. at 263.

It would require local jurors to hear and decide a dispute

that has no connection with this community. And, finally,

the Defendants have asserted that Costa Rica offers the

Plaintiffs an alternative forum with an adequate remedy,

am assertion that fas not been rebutted by the Plaintiffs.

3la

The Plaintiffs contend that this Court must allow

further discovery before it decides the issue of forum non

conveniens. But the Court in Piper Aircraft found that a

detailed inquiry into the facts was not necessary and,

in fact would defeat the purpose of the doctrine. 102

S. Ct. at 267. As in Piper Aircraft, the Defendants here

have moved for dismissal precisely because many crucial

witnesses are located beyond the reach of the compulsory

process of this Court and are thus difficult to identify or

interview. The record contains the unrebutted allegations

of the Defendants as to the difficulties caused by this

choice of forum as well as affidavits substantiating such

difficulties, this information is sufficient for the Court to

adequately consider the Gilbert and Piper Aircraft factors.

As to the Plaintiffs’ contention that state law should

apply, the Court agrees with the statement of the United

States District Court for the Southern District of Ohio

in in re Richardson-Merrell, Inc., 545 F.Supp. 1130 (S.D.

Ohio 1982):

[G]iven the discretionary nature of the forum non

conveniens inquiry and the factors established by the

Supreme Court to guide such a determination, it

would appear anomalous for the Court to apply any-

thing but federal principles.

545 F.Supp. at 1132.

And:

Most of the ‘public interest factors’ affecting the con-

venience of the forum relate peculiarly to the court

in which the case is pending, rather than to the state

in which the federal court ts located.

id. at n.3.

32a

Accordingly, the Court does:

ORDER and ADJUDGE that the Defendants’ Motions

be, and they are GRANTED. This cause is DISMISSED.

DONE and ORDERED in chambers at the United

States Courthouse, Miami, Dade County, Florida this

25th day of August, 1983.

/s/ JAMES LAWRENCE KING

James Lawrence King

U. S. District Judge

cc: all counsel

33a

APPENDIX D

NO. 84-17171

IN THE DISTRICT COURT

FOR THE COUNTY OF HARRIS

113TH JUDICIAL DISTRICT

(Filed April 11, 1984:

DOMINGO CASTRO ALFARO;

ISMAIL CAMPOS ALPIZAR and

DEYANRA CORDERO ALVARADO;

OVIDIO MORERA ALVARADO and

FLORINDA ROJAS DURAN;

ALVARO MORERA ALVAREZ and

JEREMY MORERA LOPEZ;

JESUS HERNANDEZ BADILLA and

ELIDIETH ROMAN AZOFEIFA;

EDWIN LEON BARBOZA, ET. UX.;

EFRAIM HERRA BARBOZA;

WALDEMAR LOAIZA CALVO;

EDURADO PEREZ CAMPOS and

LUZ MARINA CAMPOS RODRIGUEZ;

CLAUDIO SALAZAR CARBALLO and

DELEFINA ALMANZA PEREZ;

JORGE VAZQUEZ CARRILLO and

NOEMY SALINAS SALINAAS;

EFRAIN NUNEZ CASTRO, ET. UX.;

34a

JOEL DINARTE CASTRO;

JORGE CASTRO CASTRO and

NURY BARBOZA MORA;

SERGIO ZAMORA CASTRO and

CLARA MARIA CHAVEZ VARGAS;

ALCIBIADES NUNEZ CESPEDES and

MARIA ESTER MONTERO BOGANTES;

MIGUEL ANGEL STELLAR CHAVES and

MARIA DEL SOCORRO SANCHEZ OSES;

DIDIER ARIAS ELIZONDO and

IRENE BARRERA CHAVARRIA;

GREGORIA PEREZ ESPINOZA and

TERESA SANCHEZ ADOLIO;

SIGIFREDO MORALES ESPINOSA;

FRANCISCO ARIAS FALLAS and

MARITZA GOMEZ PEREZ:

RIGOBERTO GARITA GARITA and

MARIA CRISTINA CRUZ MARTINEZ;

MANUEL GOMEZ GOMEZ and

DEYANIRA ENRIQUEZ QUEVARA;

ANGEL SOLANO GONZALES and

LUZ RODRIGUES RAMIREZ;

FRANCISCO MORERA GONZALEZ and

ELOISA RAMIREZ CAMPOS:

MARCIANO SOLANO GONZALEZ and

FLORA ELENA FERNANDEZ ROBLES;

ANDRES VEGA GRANADOS and

MARTA JIMENEZ GONZALES;

35a

ALFREDO BERMUDEZ HERNANDEZ and

MARIA LUISA BERMUDEZ ORDONEZ;

JUAN FIGUEROA MATARRITA and

MIREYA PEREZ PEREIRA;

URIEL NUNEZ MOYA and

MIRIAM CARTIN ARAYA;

ELI ORDONEZ MURILLO and

NATIVIDAD ROBLES DURATES;

ISMAEL SALAS NUNEZ and

BASELISA MEDINA MATARRITA,

ANTONIO VILLALOBOS ORTIZ and

MARITZA SOSSA SOSSA;

JORGE VEGA PEREZ;

CARLOS LUIS MUNOZ RAMIREZ;

FRANCISCO RAMIREZ RAMIREZ and

XINIA VINDAS CASTILLO;

VICENTE GUEVARA REYES and

MARIA CECILIA DURAN CORRALES,

GERARDO ESPINOZA RODRIGUEZ,

DANIEL ZUMBADO SALAS and

LEDA MARIA ROSALES ROSALES.

MARIO ZUMBADO SALAS and

ORLENDIA CASCANTE NAVARRO;

RUBEN MORALES SALAZAR and

BLANCA NIEVES ARIAS QUESADA,;

ABELINO ROJAS SEQUEIRA;

JOSE OBANDO SEQUEIRA and

JUDITH CAMPOS GONZALEZ;

36a

JOSE SIBAJA SOTA and

BLANCA NIEVES CASCANTE NAVARRO;

ELE! ELIZONDO UMANA and

ROSALIA SOLANO GONZALEZ:

JUAN ELIZONDO UMANA;

ARNOLDO GALLO VALLEJOS,

MANUEL FLORES VALVERDE

Plaintiffs,

DOW CHEMICAL COMPANY,

SHELL OIL COMPANY and

AMVAC CHEMICAL CORPORATION,

Defendants.

PLAINTIFF'S ORIGINAL PETITION

COME NOW the above-referenced Plaintiffs complain-

ing of the Defendants SHELL OIL COMPANY, DOW

CHEMICAL COMPANY and AMVAC CHEMICAL

CORPORATION and for cause of action would show the

Court and jury as follows:

|. Plaintiffs are residents of Costa Rica. Defendant

SHELL OIL COMPANY has its principal offices in Har-

ris County and, therefore, venue lies against all Defend-

ants in Harris County.

2. Defendant, SHELL OIL COMPANY is a Delaware

corporation with its principal place of business in Texas;

said corporation may be served through its registered

agent, C. T. Corporation, 811 Dallas Avenue, Houston,

Texas 77002.

37a

3. Defendant, DOW CHEMICAL COMPANY, is a

Delaware corporation with its principal place of business

in a state other than Texas: said corporation may be

served through its registered agent, C. T. Corporation

System, Republic National Bank Building, Dallas, Texas

75210.

4. Defendant, AMVAC CHEMICAL CORPORA-

TION, is a California corporation with its principal place

of business in a state other than Texas. Although Defend-

ant. AMVAC CHEMICAL CORPORATION, does busi-

ness within the State of Texas and is required to maintain

a registered agent for service of process, said Defendant

has not designated such an agent and may, therefore, be

served at its corporate headquarters, 4100 E. Washington

Boulevard, Los Angeles, California 90023 pursuant to

TEX. R. CIV. STAT. ANN. art. 2031(b) and TEX. R.

CIV. P. 108.

5. This cause of action is predicated on products lia-

bility theories of strict liability, implied warranty and neg-

ligence, as more specifically alleged herein. The products

complained of are nematocides containing the chemical

dibromochloropropane, commonly known as DBCP.

These products were manufactured, sold and distributed

by the Defendants DOW CHEMICAL COMPANY,

SHELL OIL COMPANY and AMVAC CHEMICAL

CORPORATION.

6. Plaintiffs, DOMINGO CASTRO ALFARO, IS-

MAIL CAMPOS ALPIZAR, OVIDIO MORERA ¢L-

VARDO, ALVARO MORERA ALVAREZ, JESUS

HERNANDEZ BADILLA, EDWIN LEON BARBOZA,

EFRAIM HERRA BARBOZA, WALDEMAR LOA-

IZA CALVO, EDUARDO PEREZ CAMPOS, CLAUD-

38a

iO SALAZAR CARBALLO, JORGE VASQUEZ CAR-

RILLO, EFRAIN NUNEZ CASTRO, JOEL DINARTE

CASTRO, JORGE CASTRO CASTRO, SERGIO ZA-

MORA CASTRO, ALCIBIADES NUNEZ CESPEDES,

MIGUEL ANGEL STELLER CHAVES, DIDIER ARI-

AS ELIZONDO, GREGORIA PEREZ ESPINOZA,

SIGIFREDO MORALES ESPINOZA, FRANCISCO

ARIAS FALLAS, MARITA GOMEZ PEREZ, RIGO-

BERTO GARITA GARITA, MANUEL GOMEZ GO-

MEZ, ANGEL SOLANO GONZALES, FRANCISCO

MORERA GONZALEZ. MARCIANO SOLANO GON-

ZALEZ. ANDRES VEGA GRANADOS, ALFREDO

BERMUDEZ HERNANDEZ, JUAN FIGUEROA MA-

TARRITA, URIEL NUNEZ MOYA, ELI ORDONEZ

MURILLO, ISMAEL SALAS NUNEZ, ANTONIO VIL-

LALOBOS ORTIZ, JORGE VEGA PEREZ, CARLOS

LUIS MUNOZ RAMIREZ. FRANCISCO RAMIREZ

RAMIREZ, VICENTE GUEVARA REYES, GERARDO

ESPINOZA RODRIGUEZ. DANIEL ZUMBADO SA-

LAS, MARIO ZUMBADO SALAS, RUBEN MORALES

SALAZAR, ABELINO ROJAS SEQUEIRA, JOSE O-

BANDO SEQUEIRA, JOSE SIBAJA SOTA, ELEI ELI-

ZONDO UMANA, JUAN ELIZONDO UMANA, AR-

NOLDO GALLO VALLEJOS and MANUEL FLORES

VALVERDE, allege that they were exposed to these pro-

ducts in Costa Rica and, as a result thereof, have suffered

serious and permanent personal injuries including, but not

limited to, sterility.

NEGLIGENCE

7. The illnesses and disabilities of the Plaintiffs. DO-

MINGO CASTRO ALFARO, ISMAIL CAMPOS AL-

PIZAR, OVIDIO MORERA ALVARDO, ALVARO

39a

MORERA ALVAREZ, JESUS HERNANDEZ BADILLA,

EDWIN LEON BARBOZA, EFRAIM HERRA BAR-

BOZA, WALDEMAR LOAIZA CALVO, EDURADO

PEREZ CAMPOS, CLAUDIO SALAZAR CARBALLO,

JORGE VAZQUEZ CARRILLO, EFRAIN NUNEZ

CASTRO, JOEL DINARTE CASTRO, JORGE CAS-

TRO CASTRO, SERGIO ZAMORA CASTRO, ALCI-

BIADES NUNEZ CESPEDES. MIGUEL ANGEL STEL-

LER CHAVES, DIDIER ARIAS ELIZONDO, GRE-

GORIA PEREZ ESPINOZA, SIGIFREDO MORALES

ESPINOZA, FANCISCO ARIAS FALLAS, MARITZA

GOMEZ PEREZ. RIGOBERTO GARITA GARITA,

MANUEL GOMEZ GOMEZ, ANGEL SOLANO GON-

ZALES, FRANCISCO MORERA GONZALEZ, MARCI-

ANO SOLANO GONZALEZ, ANDRES VEGA GRAN-

ADOS, ALFREDO BERMUDEZ HERNANDEZ, JUAN

FIGUEROA MATARRITA, URIEL NUNEZ MOYA,

ELI ORDONEZ MURILLO, ISMAEL SALAS NUNEZ,

ANTONIO VILLALOBOS ORTIZ, JORGE VEGA

PEREZ, CARLOS LUIS MUNOZ RAMIREZ, FRAN-

CISCO RAMIREZ RAMIREZ, VICENTE GUEVARA

REYES, GERARDO ESPINOZA RODRIGUEZ, DAN-

IEL ZUMBADO SALAS, MARIO ZUMBADO SALAS,

RUBEN MORALES SALAZAR, ABELINO ROJAS

SEQUEIRA, JOSE OBANDO SEQUEIRA. JOSE SIBA-

JA SOTA, ELEI ELIZONDO UMANA, JUAN ELIZON-

DO UMANA, ARNOLDO GALLO VALLEJOS and

MANUEL FLORES VALVERDE, are a direct and proxi-

mate result of the negligence of each Defendant in that

said Defendants produced, sold and/or otherwise put into

the stream of commerce, DBCP-containing materials

which the Defendants knew, or in the exercise of ordinary

care ought to have known, were deleterious and highly

40a

harmful to said Plaintiffs’ health and well being. The de-

fendants were negligent in one, some and/or all of the

following respects, among others, same being the proxi-

mate cause of said Plaintiffs’ illnesses and disabilities:

(a) In failing to adequately warn Plaintiffs of the

dangerous characteristics of DBCP:

(b) In failing to provide Plaintiffs with information

as to what would be reasonably safe and sufficient wearing

apparel and proper protective equipment and appliances,

if in truth there were any, to protect Plaintiff from being

harmed and disabled by exposure to DBCP:

on the containers of said DBCP-containing materials to

warn of the dangers to health of coming into contact with

said DBCP;

(d) In failing to take reasonable precaution or exercise

reasonable care to publish, adopt and enforce a safety

plan and a safe method of handling and applying DBCP;

(e) In failing to develop and utilize a substitute ma-

terial for DBCP in the aforesaid nematocides:

(f) In failing to test DBCP prior to releasing these

products for sale; and

(g) In concealing the results of any tests conducted

on DCPB by Defendants, if in fact any Defendant ever

tested its DBCP-containing products.

STRICT LIABILITY

8. All of the allegations contained in the previous

paragraphs are realleged herein.

4la

9. The DBCP-containing products that were used and

applied by Plaintiff were designed and manufactured by

Defendants and subsequently sold, directly and indirectly,

to the various employers of Plaintiffs. Said products left

the hands of Defendants in a defective and unreasonably

dangerous condition in the following respects:

(a) said DBCP-containing products did not contain an

adequate and timely warning regarding the serious

health health hazards associated with DBCP,

(b) said products did not contain an adequate and

timely warning to the effect that protective equip-

ment should be used when working with DBCP;

contained DBCP although a substitute for this

chemical was available at all times material to

this litigation;

(d) said producis were defectively designed in that

they did not contain an adequate and timely warn-

ing concerning the hazards of DBCP and the need

for safety precautions when using DBCP;

(e) said products were unreasonably dangerous per se.

10. Each Defendant is and/or was engaged in the

business of manufacturing and/or distributing such

DBCP-containing products and these products, without

substantial change in condition after they were sold, were

a producing cause of the damages sustained by Plaintiffs.

11. Plaintiffs were unaware of the dangerous pro-

pensities of the products which rendered them unsafe

for their intended use. Plaintiffs used the aforementioned

products in a manner that was reasonably anticipated

42a

by the Defendants. Further, during the periods that

said Plaintiffs were exposed to the products of the

Defendants, said products were being utilized in a

manner which was intended by Defendants.

IMPLIED WARRANTY

12. All of the allegations contained in the previous

paragraphs are realleged herein.

13. The Defendants impliedly warranted that their

DBCP-containing products were of good and merchant-

able quality and fit for their intended use.

14. The Plaintiffs would show that they worked in

close proximity to the DBCP-containing products of

the Defendants and their presence was known or ought

to have been reasonably anticipated by the Defendants.

The implied warranty made by the Defendants that

their aforesaid products were of a good and merchant-

able quality and were fit for their particular intended

use was breached in that Plaintiffs’ work with Defend-

ants’ products caused them to be exposed to DBCP

and to be injured as a proximate result thereof.

EXEMPLARY DAMAGES

15. The Plaintiffs would show that the damages

incurred as described herein were directly and proxi-

mately caused by the reckless and grossly negligent

commissions and omissions, conscious indifference, and

utter disregard for the welfare of the said Plaintiffs

on the part of the Defendants herein, their agents,

servants, employees. managers, superintendants, super-

visors. and officers in that they ignored and concealed

evidence available to them which indicated that DBCP

43a

and DPCP-containing niaterials were harmful and deadly

to persons coming in contact with said materials. Con-

sequently, users of DBCP-containing products, such as

Plaintiffs, were deprived of the opportunity of free

choice as to whether or not to expose themselves to

the DBCP-containing products manufactured by De-

fendants. Plaintiffs would show that as a result of the

conduct of Defendants as aforesaid, they should be

awarded an amount that would punish Defendants and

act as a deterrent to Defendants and others from the

commission of similar wrongs.

Compensatory Damages

16. As a direct and proximate result of Defendants

tortious conduct as aforesaid, Plaintiffs, DOMINGO

CASTRO ALFARO, ISMAIL CAMPOS ALPIZAR,

OVIDIO MORERA ALVARADO, ALVARO MO-

RERA ALVAREZ, JESUS HERNANDEZ BADIL-

LA, EDWIN LEON BARBOZA, EFRAIM HERRA

BARBOZA, WALDEMAR LOAIZA CALVO, ED-

URADO PEREZ CAMPOS, CLAUDIO SALAZAR

CARBALLO, JORGE VAZQUEZ CARRILLO, EF-

RAIN NUNEZ CASTRO, JOEL DINARTE CASTRO,

JORGE CASTRO CASTRO, SERGIO ZAMORA CAS-

TRO, ALCIBIADES NUNEZ CESPEDES, MIGUEL

ANGEL STELLER CHAVES, DIDIER ARIAS ELI-

ZONDO, GREGORIA PEREZ ESPINOZA, SIGIFRE-

DO MORALES ESPINOSA, FRANCISCO ARIAS

FALLAS, MARITZA GOMEZ PEREZ, RIGOBERTO

GARITA GARITA, MANUEL GOMEZ GOMEZ, AN-

GEL SOLANO GONZALEZ, FRANCISCO MORERA

GONZALEZ, MARCIANO SOLANO GONZALEZ,

ANDRES VEGA GRANADOS, ALFREDO BERML-

2 eT

44a

DEZ HERNANDEZ, JUAN FIGUERO MATARRITA,

CRIEL NUNEZ MOYA, ELI ORDONEZ MURILLO,

ISMAEL SALAS NUNEZ, ANTONIO VILLALOBOS

ORTIZ, JORGE VEGA PEREZ. CARLOS LUIS MU-

NOZ RAMIREZ, FRANCISCO RAMIREZ RAMIREZ,

VICENTE GUEVARA REYES. GERARDO ESPINO-

ZA RODRIGUEZ. DANIEL ZUMBADO SALAS, MA-

RIO ZUMBADO SALAS, RUBEN MORALES SALA-

ZAR, ABELINO ROJAS SEQUEIRA, JOSE OBANDO

SEQUEIRA, JOSE SIBAJA SOTA, ELEI ELIZONDO

UMANA, JUAN ELIZONDO UMANA, ARNOLDO

GALLO VALLEJOS and MANUEL FLORES VAL-

VERDE, have developed sexual and reproductive ab-

normalities and other related conditions and have been

damaged in the following particulars for all of which

uit is herein brought:

(a) Said Plaintiffs have suffered great physical pain

and mental anguish and will continue to suffer great

pain of body and mind throughout their lifetime:

(6) Plaintiffs have incurred and will continue to incur

hospital. medical. pharmaceutical and other expenses

in the future due to their exposure to Defendants’ afore-

said products;

(¢) Plaintiffs suffer an extraordinarily increased like-

lihood of developing cancer as a result of their ex-

posure to DBCP-containing products manufactured. sold

and/or distributed by the named Defendants;

(d) Plaintiffs suffer an extraordinarily increased risk

of genetic damage as a result of their exposure to De-

fendants’ aforesaid products;

45a

(e) Plaintiffs will suffer a loss of earning capacity

due to their exposure to said DBCP-containing products;

(f) Plaintiffs will incur expenses for domestic help

and nursing care in the future due to their exposure

to Defendants’ aforesaid products;

(g) Plaintiffs have lost the capacity to enjoy life and

will continue to suffer such loss in the future due to

their exposure to Defendants’ aforesaid products;

(h) Plaintiffs, DEYANIRA CORDERO ALVARA-

DO, FLORINDA ROJAS DURAN, JEREMY MORE-

RA LOPEZ, ELIDIETH ROMAN AZOFEIFA, LUZ

MARINA CAMPOS RODRIGUEZ, DELFINA AL-

MANZA PEREZ, NOEMY SALINAS SALINAAS,

NURY BARBOZA MORA, CLARA MARIA CHA-

VEZ VARGAS, MARIA ESTER MONTERO BO-

GANTES, MARIA DEL SOCORRO SANCHEZ OSES,

IRENE BARRERA CHAVARRIA, TERESA SAN-

CHEZ ADOLIO, MARITZA GOMEZ PEREZ, MARIA

CRISTINA CRUZ MARTINEZ, DEYANIRA ENRI-

QUEZ QUEVARA, LUZ RODRIGUES RAMIREZ,

ELOISA RAMIREZ CAMPOS, FLORA ELENA FER-

NANDEZ ROBLES, MARTA JIMENEZ GONZALES,

MARIA LUISA BERMUDEZ ORDONEZ, MIREYA

PEREZ PEREIRA, MIRIAM CARTIN ARAYA, NA-

TIVIDAD ROBLES DURATES, BASELISA MEDINA

MATARRITA, MARITZA SOSSA SOSSA, XINIA

VINDAS CASTILLO, MARIA CECILIA DURAN

CORRALES, LEDA MARIA ROSALES ROSALES,

ORLENDIA CASCANTE NAVARRO, BLANCA NI-

EVES ARIAS QUESADA, JUDITH CAMPOS GON-

ZALEZ, BLANCA NIEVES CASCANTE NAVARRO

46a

and ROSALIA SOLANO GONZALEZ, have suffered

and will continue to suffer the loss of their husbands’,

DOMINGO CASTRO ALFARO, ISMAIL CAMPOS

ALPIZAR, OVIDIO MORERA ALVARADO, ALVA-

RO MORERA ALVAREZ, JESUS HERNANDEZ BA-

DILLA, EDWIN LEON BARBOZA, EFRAIM HERRA

BARBOZA, WALDEMAR LOAIZA CALVO, EDU-

RADO PEREZ CAMPOS, CLAUDIO SALAZAR CAR-

BALLO, JORGE VAZQUEZ CARRILLO, EFRAIN

NUNEZ CASTRO, JOEL DINARTE CASTRO, JORGE

CASTRO CASTRO, SERGIO ZAMORA CASTRO,

ALCIBIADES NUNEZ CESPEDES, MIGUEL ANGEL

STELLER CHAVES, DIDIER ARIAS: ELIZONDO,

GREGORIA PEREZ ESPINOZA, SIGIFREDO MORA-

LES ESPINOSA, FRANCISCO ARIAS FALLAS, MA-

RITZA GOMEZ PEREZ, RIGOBERTO GARITA GA-

RITA, MANUEL GOMEZ GOMEZ, ANGEL SO-

LANO GONZALES, FRANCISCO MORERA GON-

ZALEZ. MARCIANO SOLANO GONZALEZ, AN-

DRES VEGA GRANADOS, ALFREDO BERMUDEZ

HERNANDEZ, JUAN FIGUEROA MATARRITA,

URIEL NUNEZ MOYA, ELI ORDONEZ MURILLO,

ISMAEL SALAS NUNEZ, ANTONIO VILLALOBOS

ORTIZ, JORGE VEGA PEREZ, CARLOS LUIS MU-

NOZ RAMIREZ, FRANCISCO RAMIREZ RAMIREZ,

VICENTE GUEVARA REYES, GERARDO ESPINO-

ZA RODRIGUEZ, DANIEL ZUMBADO SALAS, MA-

RIO ZUMBADO SALAS, RUBEN MORALES SALA-

ZAR. ABELINO ROJAS SEQUEIRA, JOSE OBANDO

SEQUEIRA, JOSE SIBAJA SOTA, ELEI ELIZONDO

UMANA, JUAN ELIZONDO UMANA, ARNOLDO

GALLO VALLEJOS and MANUEL FLORES VAL-

VERDE. services, consortium, financial support and the

47a

care and comfort of their society because of their said

injuries and disabilities, and they will incur expenses

medical and nursing attention rendered to her said

husband in the future.

WHEREFORE, PREMISES CONSIDERED, Plain-

tiffs demand judgment against the Defendants, and

each of them, jointly and severally, for general and

special damages and for punitive damages, for their

costs expended herein, and for interest on said judgment

from the date thereof until paid, at the legal rate, and

for such other and further relief, both at law and in

equity, to which the Plaintiffs may show themselves

justly entitled.

Respectfully submitted,

BARON & ASSOCIATES

A Professional Corporation

1050 Dallas Federal Savings

Tower

Dallas, Texas 75225

(214) 369-3605

By: /s/ RUSSELL W. BUDD

Russell W. Budd

State Bar No. 03312400

eee

48a

CAUSE NO. 84-1717]

Receipt No. 658279-$20.00-CBM

4-11-84 TR 70241695

DOMINGO CASTRO ALFARO, et al.,

Plaintiff,

SHELL OIL COMPANY, et at.

(Filed April 24, 1984)

CITATION

THE STATE OF TEXAS

County of Harris

To Any Sheriff or Constable of Texas

TO: Shell Oil Company, a Delaware corporation, by

serving its registered agent, C. T. Corporation

811 Dallas Ave.

Houston, Tx. 77002

You are hereby commanded to appear in the Court-

room of the 113th Judicial District Court in the Court-

house in the City of Houston, Harris County, Texas, by

filing a Written Answer in the Court and under the

number and style shown in the caption above, to the

accompanying Plaintiff's Petition attached hereto at or

before 10 o’clock AM of the Monday next after the ex-

piration of 20 days after the date you were served with

this Citation.

49a

A copy of the plaintiffs original Petition, filed on the

11th day of April 1984, the nature of which is set out in

said Petition, is attached.

TO OFFICER SERVING:

This Citation is issued the 17th day of April, 1984,

under my hand and the Seal of said Court. If this Citation

is not served within 90 days from this date of issuance,

it shall be returned to this Court unserved.

SEAL

RAY HARDY, Clerk of the

District Courts Of

Harris County, Texas

‘. By: /s/ SARAH DAVIS

Sarah Davis, Deputy

Issued at request of: Baron & Associates

A Professional Corp.

Address: 1050 Dallas Federal Savings Tower

Dallas, Texas 75225

Bar No.: 03312400

50a

APPENDIX E

CONRAD, F. WALTER, JR.

3000 ONE SHELL PLZ

HOUSTON, TX 77002

CRT — 061 CASE — 8417171

ALFARO, DOMINGO CASTRO

SHELL OIL COMPANY

THIS IS TO ADVISE THAT IN THE ABOVE

CAUSE A PARTIAL DISMISSAL ON AGREEMENT

WAS SIGNED ON 04/13/87 AS TO

ALVARADO, DEYANIRA CORD

LOPEZ, JEREMY MORERA

BARBOZA, EFRAIM HERRA

RODIGUEZ, LUZ MARINA

CARRILLO, JORGE VAZQUEZ

DURAN, FLORINDA ROJAS

AZOFEIFA, ELIDIETH ROMA

CAMPOS, EDURADO PEREZ

PEREZ, DELFINA ALMANZA

SALINAAS, NOEMY SALINAS

RAY HARDY, DISTRICT CLERK

HARRIS COUNTY, TEXAS

Sla

CONRAD, F. WALTER, JR.

3000 ONE SHELL PLZ

HOUSTON, TX 77002

CRT — 061 CASE — 8417171

ALFARO, DOMINGO CASTRO

SHELL OIL COMPANY

THIS IS TO ADVISE THAT IN THE ABOVE

CAUSE A PARTIAL DISMISSAL ON AGREEMENT

WAS SIGNED ON 04/13/87 AS TO

DURATES, NATIVIDAD ROBL

ORTIZ, ANTONIO VILLALOB

RAMIREZ, CARLOS LUIS MU

CORRALES, MARIA CECILIA

NAVARRO, ORLENDIA CASCA

MATARRITA, BASELISA MED

SOSSA, MARITZA SOSSA

CASTILLO, XINiA VINDAS

ROSALES, LEDA MARIA ROS

QUESADA, BLANCA NIEVES

RAY HARDY, DISTRICT CLERK

HARRIS COUNTY, TEXAS

52a

CONRAD, F. WALTER, JR.

3000 ONE SHELL PLZ

HOUSTON, TX 77002

CRT — 061 CASE — 8417171

ALFARO, DOMINGO CASTRO

SHELL OIL COMPANY

THIS IS TO ADVISE THAT IN THE ABOVE

CAUSE A PARTIAL DISMISSAL ON AGREEMENT

WAS SIGNED ON 04/13/87 AS TO

SEQUEIRA, JOSE OBANDO

NAVARRO, BLANCA NIEVES

VALLEJOS, ARNOLDO GALLO

GONZALEZ, FRANCISCO MOR

GONZALEZ, JUDITH CAMPOS

GONZALEZ, ROSALIA SOLAN

GOMEZ, MANUEL GOMEZ

RAY HARDY, DISTRICT CLERK

HARRIS COUNTY, TEXAS

53a

CONRAD, F. WALTER, JR.

3000 ONE SHELL PLZ

HOUSTON, TX 77002

CRT — 061 CASE — 8417171

ALFARO, DOMINGO CASTRO

SHELL OIL COMPANY

THIS IS TO ADVISE THAT IN THE ABOVE

CAUSE A PARTIAL DISMISSAL ON AGREEMENT

WAS SIGNED ON 04/13/87 AS TO

MARTINEZ, MARIA CRISTIN

RAMIREZ, LUZ RODRIGUES

ROBLES, FLORA ELENA FER

HERNANDEZ, ALFREDO BERM

PEREIRA, MIREYA PEREZ

QUEVARA, DEYANIRA ENRIQ

CAMPOS, ELOISA RAMIREZ

GONZALES, MARTA JIMENEZ

ORDONEZ, MARIA LUISA BE

ARAYA, MIRIAM CARTIN

RAY HARDY, DISTRICT CLERK

HARRIS COUNTY, TEXAS

54a

CONRAD, F. WALTER, JR.

3000 ONE SHELL PLZ

HOUSTON, TX 77002

CRT — 061 CASE — 8417171

ALFARO, DOMINGO CASTRO

SHELL OIL COMPANY

THIS [S TO ADVISE THAT IN THE ABOVE

CAUSE A PARTIAL DISMISSAL ON AGREEMENT

WAS SIGNED ON 04/13/87 AS TO

CASTRO, EFRAIN NUNEZ

MORA, NURY BARBOZA

BOGANTES, MARIA ESTER M

CHAVARRIA, IRENE BARRER

ESPINOSA, SIGIFREDO MOR

CASTRO, JORGE CASTRO

VARGAS, CLARA MARIA CHA

OSES, MARIA DEL SOCORRO

ADOLIO, TERESA SANCHEZ

PEREZ, MARITZA GOMEZ

RAY HARDY, DISTRICT CLERK

HARRIS COUNTY, TEXAS

55a

NO. 84-17,171

IN THE DISTRICT COURT

OF HARRIS COUNTY, TEXAS

61ST DISTRICT COURT

DOMINGO CASTRO ALFARO, ET AL

Vv.

DOW CHEMICAL COMPANY, ET AL

ORDER

On this the _____ day of April, 1987 came on to be

heard the motion of Dow Chemical Company and Shell

Oil Company for sanctions in seeking dismissal of certain

plaintiffs herein for failure to answer discovery; and, it

appearing to the Court that such motion should be granted,

it is, accordingly,

ORDERED, ADJUDGED AND DECREED that the

claims and causes of action asserted herein by the follow-

ing plaintiffs are dismissed for failure to answer discovery

including failure to file answers to requests for admission

or written interrogatories:

Deyanira Cordero Alvarado;

Florinda Rojas Duran;

Jeremy Morera Lopez:

Elidieth Roman Azofeifa;

Efraim Herra Barboza;

Eduardo Perez Campos;

Luz Marina Campos Rodriguez;

Delfina Almanza Perez;

Jorge Vazquez Carrillo;

Noemy Salinas Salinaas;

Efrain Nunez Castro;

56a

Jorge Castro Castro;

Nury Barboza Mora:

Clara Maria Chavez Vargas;

Maria Ester Montero Bogantes;

Maria Del Socorro Sanchez Oses;

Irene Barrera Chavarria:

Teresa Sanchez Adolio:

Sigifredo Morales Espinosa;

Maritza Gomez Perez:

Maria Christina Cruz Martinez:

Deyanira Enriquez Quesara:

Luz Rodrigues Ramirez:

Eloisa Ramirez Camos;

Flora Elena Fernandez Robles:

Marta Jimenez Gonzales:

Alfredo Bermudez Hernandez;

Maria Luisa Bermudez Ordonez:

Mireya Perez Pereira:

Miriam Cartin Araya;

Natividad Robles Durates:

Baselisa Medina Matarrita;

Antonio Villalobos Ortiz:

Maritza Sossa Sossa:

Carlos Luis Munoz Ramirez;

Xinia Vindas Castillo:

Maria Cecilia Duran Corrales;

Leda Maria Rosales Rosales;

Orlendia Cascante Navarro:

Blanca Nieves Arias Quesada;

Jose Obando Sequeira;

Judith Campos Gonzalez:

Blanca Nieves Cascante Navarro:

Rosalia Solano Gonzalez:

Arnoldo Gallo Vallejuos;

Manue! Gomez Gomez;

Francisco Morera Gonzalez.

Costs of court relating to the claims and causes of

action of those plaintiffs dismissed above shall be taxed

to the parties incurring them.

57a

In all other respects, the Motions for Sanctions and the

Motions to Dismiss for Failure to Provide Discovery*

in the above referenced cases are hereby dismissed.

SIGNED this _ day of April, 1987.

DISTRICT JUDGE

APPROVED AS TO FORM AND SUBSTANCE:

BAKER & BOTTS

By: /s/ F. WALTER CONRAD

F. Walter Conrad

Bar No. 04709000

Attorney for Defendant

Dow Chemical Company

SHELL OIL COMPANY

By: /s/ BURT BALLANFANT

Burt Ballanfant

Bar No. 1647000

Attorney for Defendant

Shell Oil Company

BARON & BUDD

By: /s/ CHARLES S. SIEGEL

Charles S. Siegel

Bar No. 18341875

Attorney for Plaintiffs

* which are set for hearing on April 13, 1987.

58a

APPENDIX F

NO. 84-17,171

IN THE DISTRICT COURT OF

HARRIS COUNTY, TEXAS

6Ist JUDICIAL DISTRICT

DOMINGO CASTRO ALFARO, et al.,

Plaintiffs,

Vv.

DOW CHEMICAL COMPANY, et al.,

Defendants.

ORDER OF DISMISSAL

On April 28, 1987, came on before the Court the

motions to dismiss for lack of jurisdiction and to dismiss

on the basis of forum non conveniens of Dow Chemical

Company and Shell Oil Company: and the Court having

heard argument of counsel, read the briefs and affidavits

filed by all the parties herein; reviewed the responses to dis-

covery on file with the Court: and reviewed the stipula-

tions filed by defendants has determined that the Court

has jurisdiction of all the remaining claims asserted herein

but that the defendants’ motion to dismiss on the basis

of forum non conveniens is meritorious and should be

granted as to all parties for the reasons stated in the briefs

and motions filed herein by the defendants; therefor it is

hereby

ORDERED that the claims of Domingo Castro Alfaro;

Ismail Campos Alpizar; Ovidio Morera Alvarado; Alvaro

Morera Alvarez; Jesus Hernandez Badilla; Edwin Leon

59a

Barboza; Waldemar Loaiza Calvo; Claudio Salazar Car-

bello; Joel Dinarte Castro; Sergio Zamora Castro; Alci-

biades Nunez Cespedes; Miguel Angel Steller Chaves;

Didier Arias Elizondo; Gregoria (Gregorio) Perez Es-

pinoza; Francisco Arias Fallas; Rigoberto Garita Garita;

Angel Solano Gonzales; Marciano Solano Gonzales; An-

dres Vega Granados; Juan Figueroa Matarrita; Uriel

Nunez Moya; Eli Ordonez Murillo; Ismael Salas Nunez;

Jorge Vega Perez; Francisco Ramirez Ramirez; Vicente

Guevara Reyes; Gerardo Espinoza Rodriguez; Daniel

Zumbado Salas; Mario Zumbado Salas; Ruben Morales

Salazar; Abelino Rojas Sequeira; Jose Sibaja Sota; Elei

Elizondo Umana; Juan Elizondo Umana; and Manuel

Flores Valverde; are dismissed as to all parties under the

doctrine of forum non conveniens subject to: (1) the

stipulations filed herein by Dow Chemical Company and

Shell Oil Company and (2) to this case being refiled if

the defendants do not comply with the terms of those

stipulations. The above-named plaintiffs, citizens of Costa

Rica, shall hereafter have the right to proceed with this

litigation, if they choose to do so, in Costa Rica where

the causes of action arose. All pending motions not ex-

pressly granted herein are denied. Limitations statute

tolled during pendency of this case in this Court.

SIGNED AND ENTERED at Houston, Texas this

22nd day of June, 1987.

By: /s/ SHEARN SMITH

Shearn Smith

Judge Presiding

APPROVED AS TO FORM AND SUBSTANCE:

By:

APPROVED AS TO FORM ONLY:

By:

60a

SHELL OIL COMPANY

BURT BALLANFANT

Burt Ballanfant

Bar No. 1647000

Room 4794

One Shell Plaza

P. O. Box 2463

Houston, TX 77252

JOSE A. BERLANGA

Jose A. Berlanga

Bar No. 02203400

Room 4708

One Shell Plaza

P. O. Box 2463

Houston. TX 77252

DOW CHEMICAL

F. WALTER CONRAD

F. Walter Conrad

Bar No. 04709000

3000 One Shell Plaza

Houston, TX 77252

PLAINTIFFS

CHARLES S. SIEGEL

Bar No. 18341875

8333 Douglas

Dallas, TX 75225

6la

APPENDIX G

RUSSELL W. BUDD

JANE N. SAGINAW

BARON & BUDD

8333 Douglas Avenue

10th Floor

Dallas, Texas 75225

214/369-3605

FEDERICO C. SAYRE

SAYRE, MORENO, PURCELL, AND BOUCHER

10351 Santa Monica Boulevard

Suite 406

Los Angeles, California 90025

213/556-8186

Attorneys for Plaintiffs

SUPERIOR COURT OF THE

STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

CASE NO. 0570052

COMPLAINT FOR DAMAGES:

1. Negligence;

2. Strict Liability;

3. Breach of Implied Warranty

of Merchantability;

62a

PLAINTIFF'S ORIGINAL COMPLAINT

AND JURY DEMAND

RODRIGO ESQUIVEL AGUILAR and

ADALI CORDERO ALVARADO;

JOSE ANTONIO ROJAS ARAYA and

AURORA AGUERO AGUERO;

OLGER CARTIN ARAYA;

OUIDIO AGUERO ARGUELLO and

MARIA ESTER BERMUDEZ ALAVARADO;

PORFIRO TREJOS BARRANTES and

ELISABETH SALAS RODRIGUEZ;

JUAN MANUEL JIMENEZ CAMBRONERO and

ELVIVA BELLO LOPEZ;

VASILIO SANCHEZ CARAZO and

VINCENTA GARCIA BARRIENTOS;

CLAUDIO SALAZAR CARBALLO and

DELFINA ALMANZA PEREZ;

RAMON VICTORIANO PEREZ FERNANDEZ and

ALEXA SUAREZ MORALES;

DAGOBERTO ARAYA GARITA;

JOSE ANTONIO ZUNIGA GUTIERREZ and

IRIABEL ESPINOZA RODRIGUEZ;

FRANCISCO MELENDEZ MELENDEZ and

ROSA LIZANO SATRUCH;

ADRIAN GOMEZ MONTERO;

MARIO TULIO VILLALOBOS MURRILLO and

LUZ MARIA AGUERO AGUERO;

OLMAN MIRANDA NUNEZ and

CLARIBEL MIRANDA CAJNA;

GERARDO ESPINOZA RODRIGUEZ and

MARIA SALAZAR BALTODANO;:

EDWIN CORRALES ROJAS and

63a

VIRGITA HERNANDEZ ARGUEDAS:

MANUEL SANCHEZ SEGURA and

ALEIDE GONZALEZ MORERA:

VICTOR JULIO RODRIGUEZ VASQUEZ

Vv.

DOW CHEMICAL COMPANY,

SHELL OIL COMPANY and

AMVAC CHEMICAL CORPORATION,

Defndants.

COME NOW the above-referenced Plaintiffs complain-

ing of the Defendants SHELL OIL COMPANY, DOW

CHEMICAL COMPANY and AMVAC CHEMICAL

CORPORATION and for cause of action would show

the Court and jury as follows:

1. Plaintiffs are residents of Costa Rica. Defendant

AMVAC CHEMICAL COMPANY has its principal of-

fices in Los Angeles, Los Angeles County, California and.

therefore, venue lies aganst all Defendants in Los Angeles

County.

2. Defendant. AMVAC CHEMICAL COMPANY is

a California corporation with its principal place of

business in Los Angeles County; said defendant may

be served at its corporate headquarters, 4100 East

Washington Boulevard, Los Angeles, California 90023.

3. Defendant, DOW CHEMICAL COMPANY, is

a Delaware corporation with its principal place of busi-

ness in a state other than California; said corporation

may be served through its registered agent, John E.

Dicks, Lover Ridge Road, Pittsburg, California 94565.

64a

4. Defendant, SHELL OIL COMPANY, is a Dela-

ware corporation with its principal place of business

in a state other than California: said corporation may

be served through its registered agent, C. T. Corporation

Systems, 800 South Figueroa Street, Los Angeles, Cali-

fornia 90017.

5. This cause of action is predicated on products

liability theories of strict liability, implied warranty and

negligence, as more specifically alleged herein. The

products complained of are nematocides containing the

chemical dibromochloropropane, commonly known as

DBCP. These products were manufactured, sold and dis-

tributed by the Defendants DOW CHEMICAL COM-

PANY, SHELL OIL COMPANY and AMVAC CHEMI-

CAL CORPORATION.

6. Plaintiffs, RODRIGO ESQUIVEL AGUILAR,

JOSE ANTONIO ROJAS ARAYA, OLGER CARTIN

ARAYA, OUIDIO AGUERO ARGUELLO, PORFIRO

TREJOS BARRANTES, JUAN MANUEL JIMENEZ

CAMBRONERO, VASILIO SANCHEZ CARAZO,

CLAUDIO SALAZAR CARBALLO, RAMON VIC-

TORIANO PEREZ FERNANDEZ, DAGOBERTO ARA-

YA GARITA, JOSE ANTONIO ZUNIGA GUTIER-

REZ, FRANCISCO MELENDEZ MELENDEZ, ADRI-

AN GOMEZ MONTERO, MARIO TULIO VILLA-

LOBOS MURRILLO, OLMAN MIRANDA NUNEZ,

GERARDO ESPINOZA RODRIGUEZ, EDWIN COR-

RALES ROJAS, MANUEL SANCHEZ SEGURA, and

VICTOR JULIO RODRIGUEZ VASQUEZ, allege that

they were exposed to these products in Costa Rica and,

as a result thereof, have suffered serious and permanent

personal injuries including, but not limited to, sterility.

65a

NEGLIGENCE

7. The illnesses and disavilities of the Plaintiffs,

RODRIGO ESQUIVEL AGUILAR, JOSE ANTONIO

ROJAS ARAYA, OLGER CARTIN ARAYA, OUI-

DIO AGUERO ARGUELLO, PORFIRO TREJOS

BARRANTES, JUAN MANUEL JIMENEZ CAM-

BRONERO, VASILIO SANCHEZ CARAZO, CLAL-

DIO SALAZAR CARBALLO, RAMUN VICTORIANO

PEREZ FERNANDEZ, DAGOBERTO ARAYA GARI-

TA, JOSE ANTONIO ZUNIGA GUTIERREZ, FRAN-

CISCO MELENDEZ MELENDEZ, ADRIAN GOMEZ

MONTERO, MARIO TULIO VILLALOBOS MURRIL-

LO, OLMAN MIRANDA NUNEZ, GERARDO ESPINO-

ZA RODRIGUEZ, EDWIN CORRALES ROJAS, MAN-

UEL SANCHEZ SEGURA, and VICTOR JULIO ROD-

RIGUEZ VASQUEZ, are a direct and proximate result

of the negligence of each Defendant in that said De-

fendants produced, sold and/or otherwise put into the

stream of commerce, DBCP-containing materials which

the Defendants knew, or in the exercise of ordinary

care ought to have known, were deleterious and highly

harmful to said Plaintiffs’ health and well being. The

Defendants were negligent in one, some and/or all of

the following respects, among others, same being the

proximate cause of said Plaintiffs’ illnesses and disabilities.

(a) In failing to adequately warn flaintiffs of the

dangerous characteristics of DBCP;

(b) In failing to provide Plaintiffs with information

as to what would be reasonably safe and sufficient

wearing apparel and proper protective equipment and

appliances, if in truth there were any, to protect Plaintiff

from being harmed and disabled by exposure to DBCP;

66a

on the containers of said DBCP-containing materials to

warn of the dangers to health of coming into contact

with said DBCP:

(d) In failing to take reasonable precaution or exer-

cise reasonable care to publish, adopt and enforce a

safety plan and a safe method of handling and applying

DBCP:

(ec) In failing to develop and utilize a substitute

material for DBCP in the aforesaid nematocides;

(f) In failing to test DBCP prior to releasing these

products for sale; and

(g) In concealing the results of any tests conducted

on DBCP by Defendants, if in fact any Defendant ever

tested its DBCP-containing products.

STRICT LIABILITY

8. All of the allegations contained in the previous

paragraphs are realleged herein.

9. The DBCP-containing products that were used and

applied by Plaintiff were designed and manufactured

by Defendants and subsequently sold, directly and in-

directly, to the various employers of Plaintiffs. Said

products left the hands of Defendants in a defective and

unreasonably dangerous condition in the following re-

spects:

(a) said DBCP-containing products did not contain

an adequate and timely warning regarding the

serious health health hazards associated with

DBCP;

67a

(b) said products did not contain an adequate and

timely warning to the effect that protective equip-

ment should be used when working with DBCP;

they contained DBCP although a substitute for

this chemical was available at all times material

to this litigation.

(d) said products were defectively designed in that

they did not contain an adequate and timely warn-

ing concerning the hazards of DBCP and the need

for safety precautions when using DBCP;

(e) said products were unreasonably dangerous per se.

10. Each Defendant is and/or was engaged in the

business of manufacturing and/or distributing such DBCP-

containing products and these products, without substan-

tial change in condition after they were sold, were a pro-

ducing cause of the damages sustained by Plaintiffs.

11. Plaintiffs were unaware of the dangerous pro-

pensities of the products which rendered them unsafe for

their intended use. Plaintiffs used the aforementioned

products in a manner that was reasonably anticipated by

the Defendants. Further, during the periods that said

Plaintiffs were exposed to the products of the Defendants,

said products were being utilized in a manner which was

intended by Defendants.

IMPLIED WARRANTY

12. All of the allegations contained in the previous

paragraphs are realleged herein.

13. The Defendants impliedly warranted that their

DBCP-containing products were of good and merchant-

able quality and fit for their intended use.

68a

i4. The Plaintifis would show that they worked in

close proximity to the DBCP-containing products of the

Defendants and their presence was known or ought to have

been reasonably anticipated by the Defendants. The im-

plied warranty made by the Defendants that their afore-

said products were of a good and merchantable quality

and were fit for their particular intended use was breached

in that Plaintiffs’ work with Defendants’ products caused

them to be exposed to DBCP and to be injured as a proxi-

mate result thereof.

EXEMPLARY DAMAGES

15. The Plaintiffs would show that the damages in-

curred as described herein were directly and proximately

caused by the reckless and grossly negligent commissions

and omissions, conscious indifference, and utter disregard

for the welfare of the said Plaintifis on the part of the

Defendants herein, their agents, servants, employees,

managers, superimtendants, supervisors, and officers in that

they ignored and concealed evidence available to them

which indicated that DBCP and DBCP-containing ma-

terials were harmful and deadly to persons coming in con-

tact with said materials. Consequently, users of DBCP-

containing products, such as Plaintiffs, were deprived of

the opportunity of free choice as to whether or not to

expose themselves to the DBCP-containing products

manufactured by Defendants. Plaintiffs would show that

as a result of the conduct of Defendants as aforesaid, they

should be awarded an amount that wound punish De-

fendants and act as a deterrent to Defendants and others

from the commission of similar wrongs.

COMPENSATORY DAMAGES

16. As a direct and proximate result of Defendants

tortious conduct as aforesaid, Plaintiffs, RODRIGO ES-

69a

QUIVEL AGUILAR, JOSE ANTONIO ROJAS ARA-

YA, OLGER CARTIN ARAYA, OUIDIO GUERO AR-

GUELLO, PORFIRO TREJOS BARRANTES, JUAN

MANUEL JIMENEZ CAMBRONERO, VASILIO SAN-

CHEZ CARAZO, CLAUDIO SALAZAR CARBALLO,

RAMON VICTORIANO PEREZ FERNANDEZ, DA-

GOBERTO ARAYA GARITA, JOSE ANTONIO ZUNI-

GA GUTIERREZ, FRANCISCO MELENDEZ MELEN-

DEZ, ADRIAN GOMEZ MONTERO, MARIO TULIO

VILLALOBOS MURRILLO, OLMAN MIRANDA NU-

NEZ, GERARDO ESPINOZA RODRIGUEZ, EDWIN

CORRALES ROJAS, MANUEL SANCHEZ SEGURA,

and VICTOR JULIO RODRIGUEZ VASQUEZ, have

developed sexual and reproductive abnormalities and other

related conditions and have been damaged in the follow-

ing particulars for all of which suit is herein brought:

(a) Said Plaintiffs have suffered great physical pain

and mental anguish and will continue to suffer great pain

of body and mind throughout their lifetime;

(b) Plaintiffs have incurred and will continue to incur

hospital, medical, pharmaceutical and other expenses in

the future due to their exposure to Defendants’ aforesaid

products;

hood of developing cancer as a result of their exposure to

DBCP-containing products manufactured, sold and/or

distributed by the named Defendants;

(d) Plaintiffs suffer an extraordinarily increased risk

of genetic damage as a result of their exposure to De-

fendants’ aforesaid products;

(e) Plaintiffs will suffer a loss of earning capacity due

to their exposure to said DBCP-containing products;

70a

(f) Plaintiffs will incur expenses for domestic help and

nursing care in the future due to their exposure to De-

fendants’ aforesaid products;

(g) Plaintiffs have lost the capacity to enjoy life and

will continue to suffer such loss in the future due to their

exposure to Defendants’ aforesaid products;

(h) Plaintiffs, ADALI CORDERO ALVARADO,

AURORA AGUERO AGUERO, MARIA ESTER BER-

MUDEZ ALVARADO, ELISABETH SALAS RODRI-

GUEZ. ELVIVA BELLA LOPEZ, VINCENTA GAR-

CIA BARRIENTOS, DELFINA ALMANZA PEREZ,

ALEXA SUAREZ MORALES, IRIABEL ESPINOZA

RODRIGUEZ, ROSA LIZANO SATRUCH, LUZ MA-

RIA AGUERO AGUERO, CLARIBEL MIRANDA

CAJNA, MARIA SALAZAR BALTODANO, VIRGITA

HERNANDEZ ARGUEDAS, and ALEIDE GONZALEZ

MORERA, have suffered and will continue to suffer the

loss of their husbands’, RODRIGO ESQUIVEL AGUI-

LAR, JOSE ANTONIO ROJAS ARAYA, OLGER CAR-

TIN ARAYA, OULIDIO AGUERO ARGUELLO, POR-

FIRO TREJOS BARRANTES, JUAN MANUEL JIM-

ENEZ CAMBRONERO, VASILIO SANCHEZ CAR-

AZO, CLAUDIO SALAZAR CARBALLO, RAMON

VICTORIANO PEREZ FERNANDEZ, DAGOBERTO

ARALA GARITA, JOSE ANTONIO ZUNIGA GUL-

TIERREZ, FRANCISCO MELENDEZ MELENDEZ,

ADRIAN GOMEZ MONTERO, MARIO TULIO

VILLALOBOS MURRILLO, OLMAN MIRANDA NU-

NEZ. GERARDO ESPINOZA RODRIGUEZ, EDWIN

CORRALES ROJAS, MANUEL SANCHEZ SEGURA,

and VICTOR JULIO RODRIGUEZ VASQUEZ, services,

consortium, financial support and the care and comfort

Tila

of their society respectively because of their said injuries

and disabilities, and they will incur expenses medical and

nursing attention rendered to her said husband in the

future.

WHEREFORE, PREMISES CONSIDERED, Plaintiffs

demand judgment against the Defendants, and each of

them, jointly and severally, for general and special dam-

ages and ior punitive damages, for their costs expended

herein, and for interest on said judgment from the date

thereof until paid, at the legal rate, and fer such other and

further relief, both at law and in equity, to which the

Plaintiffs may show themselves justly entitled.

Respectfully submitted,

BARON & BUDD

By: /s/ RUSSELL W. BUDD

Russel W. Budd

By: /s/ JANE N. SAGINAW

Jane N. Saginaw

Attorneys for Plaintiffs

AND

SAYRE, MORENO, PURSELL,

AND BOUCHER

10351 Santa Monica Boulevard

Suite 406

Los Angeles, California 90025

213/556-8186

By: /s/ FEDERICO CASTELAN SAYRE

Federico Castelan Sayre

72a

APPENDIX H

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. 86-4753 JGD (TX)

RODRIGO ESOUIVEL AGUILAR, et al.,

Plaintiffs,

DOW CHEMICAL COMPANY, et al.,

Defendants.

ORDER VACATING ORDER TO SHOW CAUSE

RE: REMAND: ORDER DISMISSING ACTION;

ORDER REGARDING CONDITIONAL DISMISSAL

On December 1, 1986, this Court found that it had

diversity jurisdiction of this action and then granted the

defendants’ motion to dismiss this action on forum non

conveniens grounds. Following the hearing, the parties

submitted post-hearing briefs on the conditions of dis-

missal. Numerous issues and complicated facts have arisen

during the brief time that this matter has been before this

Court. By this Order, the Court now clarifies its reasoning

in reaching the decisions of December 1, 1986 and also

sets forth the conditions of dismissal.

I. UNDERLYING FACTS

On October 15, 1986, the plaintiffs, thirty-four citizens

and residents of Costa Rica, filed a complaint in state

court alleging causes of action for negligence, strict lia-

bility, and breach of the implied warranty of merchant-

ability. The plaintiffs alleged that while working on a

73a

banana plantation in Costa Rica, they were exposed to

a chemical, dibromochloropropane (“DBCP”), which had

caused them to suffer personal injuries. Some of the plain-

tiffs’ wives also brought claims for loss of consortium.

The plaintiffs alleged that the defendants had manufac-

tured, produced, sold, or had otherwise placed DBCP into

the stream of commerce so that they were exposed to it.

Named as defendants were Dow Chemical Company

(“Dow”), Shell Oil Company (“Shell”), and Amvac

Chemical Corporation (“Amvac”). Neither Dow nor Shell

are incorporated in California; neither has its principal

place of business here. Amvac’s principal place of busi-

ness is in California, and it is incorporated in California.

Although all of the defendants were of diverse citizen-

ship from the foreign plaintiffs, the action could not

be removed to federal court because of Amvac’s presence.

See 28 U.S.C. section 1441(b) (diversity action is re-

movable “only if none of the parties in interest properly

joined and served as defendants is a citizen of the

State in which such action is brought”).

On July 22, 1986, Dow filed a petition for removal:

the other defendants joined in it. The reason alleged

for removal was that testimony given at a deposition

conducted on June 24, 1986 had disclosed that none of

the DBCP produced by Amvac had been used in the

Costa Rican operations of the plaintiffs’ employer. Dow

therefore claimed that Amvac was merely a sham de-

fendant and that the action was now removable to

federal court.

On July 29, 1986, Dow filed a motion in this Court

to the dismiss the action on forum non convenience

grounds. Amvac filed a motion on the same ground on

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July 31, 1986. Shell joined in Dow’s motion on August

4, 1986. Similar motions had been pending in state court

at the time the action was removed.

Because of uncertainty about the status of Amvac

as a defendant. on August 5, 1986, this Court served an

order to show cause why the matter should not be re-

manded to state court. The order required that the

defendants submit their papers by August 22, 1986

and that the plaintiffs file their response by August

29, 1986.

In accordance with the Court’s order to show cause,

the defendants submitted their memoranda of points

and authorities on the remand issue by August 22,

1986, briefing in particular their contentions that Amvac

was a “sham” defendant. On August 22, 1986, plaintiffs

filed a motion to conduct further discovery on forum

non conveniens. Their papers revealed for the first

time that in fact the plaintiffs had filed an amended

complaint in state court one day prior to Dow’s filing

of the petition for removal on July 22, 1986. As of

August 22, 1986, none of the defendants had been served

with the amended complaint, nor did any of them know

of its existence. The amended complaint named as new

defendants Dow Chemical International and Does 1

through 100.

Meanwhile. on September 10, 1986, this Court signed

an order dismissing without prejudice Amvac from the

action. The plaintiffs stated in their notice of dismissal

that they had been unable to discover any evidence that

the plaintiffs had been exposed to any DBCP-containing

products manufactured or distributed by Amvac.

75a

At a hearing conducted on September 15, 1986, this

Court granted the plaintiffs’ motion to conduct additional

discovery with respect to the defendants’ pending motions

to dismiss on forum non conveniens. The Court allowed

an additional month’s discovery, noting that the plaintiffs

had been on notice that this was an issue in the action

and had presumably been conducting discovery on it

since at least May 1986 when Dow filed a motion to

dismiss on forum non conveniens grounds in state court.

Because the remand issue had never been resolved,

that same date the Court served a minute order on all

parties. In effect, the Court requested that the parties

file supplemental briefs directed to the first amended

complaint and the new issue of the Doe defendants.

The Court suggested that the plaintiffs might use their

additional discovery time to attempt to identify the

Doe defendants. See Bryant v. Ford Motor Co., 794

F.2d 450, 453 F.2d (9th Cir. 1986) (suggesting that

the district court may wish to consider the state court

plaintiff's response to a claim that Doe defendants are

fictitious in determining whether remand is required).

On November 10, 1986, the Court continued reso-

lution of the remand issue and the defendants’ motion to

dismiss on forum non conveniens until December 1,

1986. The Court expressed its concern that the petition

for removal did not strictly comply with the requirements

of 28 U.S.C. section 1446(a) in that the petition had

been based upon and had attached to it the original

complaint filed in state court, rather than the amended

complaint. Although all of the parties upon learning

of its existence had treated the amended complaint as

the operative pleading. the Court requested that the

76a

defendants file an amended petition for removal that

would reflect the allegations of the amended complaint.

See London vy. Standard Oil of California, 417 F.2d

820, 822 (9th Cir. 1969) (allowing amendment of a

removal petition to “cure any deficiency in establishing

diversity jurisdiction” ).

On December 1, 1986, this Court, after first finding

that it had jurisdiction over this matter, granted the

defendants’ motion to dismiss on forum non conveniens.

{l. Legal Issues

A. Propriety of Removal

The plaintiffs in this action are all citizens of Costa

Rico; the named corporate defendants are citizens of

Various states. Plaintiffs are claiming damages in excess

of $10,000. District courts have original jurisdiction

of matters where the sum in controversy exceeds $10,000

and the action is between “citizens of a State and

citizens or subjects of a foreign state.” 28 U.S.C. section

1332(a)(2).

At the time of removal, Amvac was still a defendant

in this action, but the defendants had contended that

recent deposition testimony revealed that Amvac was

merely a “sham” defendant. Since Amvac was sub-

sequently dismissed by the plaintiffs, the issues involving

Amvac are now moot. Dow Chemical International was

named as a defendant in the amended complaint, al-

though it was apparently never served. But since Dow

Chemical International is incorporated in Delaware and

has its principal place of business in Michigan, its

presence would not have destroyed diversity.

77a

Therefore, the primary issue before this Court was

the effect of the Doe defendant allegations contained

in the amended complaint. In Sorosky vy. Burroughs

Corp., 798 F.2d 1274 (9th Cir. 1986), the Ninth Circuit

stated that as a general rule the presence of Doe de-

fendants defeats diversity since it prevents a court from

affirmatively ascertaining that complete diversity exists.

But the Ninth Circuit explained that an exception might

apply “‘when the Does are wholly fictitious or when

the charges against the Does are so general that no clue

is given as to their identity or their relationship to the

cause of action.”” Jd. at 1276. In Sorosky, the court

found that allegations that the Does were “agents and

employees” of the defendant, “while lean,’ sufficed to

give the defendants “ ‘some clue as to the possible ident-

ity’ of the Doe defendants.” Jd. See also Bryant v. Ford

Motor Co., 794 F.2d 450, 451-53 (9th Cir. 1986)

(purpose of allowing exception to rule was “the need

to prohibit plaintiffs who initiate actions in state court

froin defeating removal jurisdiction by the use of pleading

fictions” ).

At first glance, it appears that that the Doe allegations

in the case at hand would fall within the parameters

of the general rule set forth in Sorosky, supra, that the

presence of Doe defendants ordinarily defeats diversity

jurisdiction. The plaintiffs had alleged that each of the

Doe defendants “was an agent, servant or employee

of the remaining Defendants” and that the Doe defend-

ants were responsible for the “importation, operation,

design, distribution, ownership, possession, supervision,

servicing, maintenance, inspection, repair, control, en-

trustment, use, furnishing, manufacturing or sale of the

78a

premises which caused the injuries and damages herein

The complaint also alleged that the products in ques-

tion were “manufactured, sold and distributed by De-

fendants Dow Chemical Company. Shell Oil Company,

Amvac Chemical Corporation, Dow Chemical Inter-

national, Inc. and DOES | through 100, inclusive, and

However, given the peculiar circumstances of this

action, the Court was convinced that the Doe defendants

were “wholly fictitious.” The Doe allegations were so

broad that it was impossible to ascertain whether they

did, in fact, provide the named defendants with a “clue”

to the Doe defendants’ identity. There also were no alle-

gations in the amended complaint that even suggested

that any of the employees or agents of the named

defendants were foreign citizens. For in this particular

Situation, where all of the named plaintiffs were foreign

citizens, only if the Doe defendants were foreign citizens

would they defeat diversity.

In their supplementai brief on this issue, the plaintiffs

did not claim or suggest that any of the Doe defendants

were foreign residents. However, they identified Charles

Hine Laboratories, Inc., a California corporation with

its principal place of business in California, and Charles

H. Hine, M.D., a California resident [the “Hine enti-

tics’], as the Doe defendants. The plaintiffs alleged that

they would move the Court to further amend their com-

plaint in order to add the Hine entities as defendants.

The plaintiffs did not contend that the Hine entities

were agents or employees of the named defendants, but

79a

they did claim that the Hine entities were “responsible

for the testing” of DBCP-containing pesticides manu-

factured by Shell and that they had “participated in

studies” with Dow researchers. The exhibits attached

to the supplemental brief indicated that Charles H.

Hine, M.D., while connected with the University of

California, had conducted certain research related to

DBCP during the 1950's and early 1960's.

The plaintiffs’ “identification” of the Doe defendants

posed some interesting questions. For one, the Hine

entities do not appear to fall within the Doe allegations

made in the amended complaint. The amended complaint

stated that “each of the Defendants was an agent,

servant or employee of the remaining Defendants.”

As noted above, the plaintiffs did not claim that the

Hine entities were agents, servants, or employees of

the named defendants, and the exhibits attached to their

brief did not seem to indicate that this was the case.

Furthermore, despite the extremely long and broad list

of acts which the Doe defendants had allegedly per-

formed, none of the Doe allegations related to the

research and testing of the DBCP. There was also no

Suggestion that the Hine entities had “manufactured,

sold and distributed” DBCP, although it had been al-

leged in the amended complaint that the Doe defendants,

and “each of them,” had done so. Thus, the Court con-

cluded that the Hine entities were not identifiable by

the Doe allegations.

Moreover, the presence of the Hine entities in the

action would not destroy diversity since they were not

foreign citizens. The plaintiffs argued, however, that

the presence of Doe defendants that might be California

80a

residents dictated that the case be remanded to state court

because an action cannot be removed initially when a

defendant's citizenship is the same as the forum court.

28 U.S.C. section 1441(b) indicates that an action

based upon diversity of citizenship “shall be removable

only if none of the parties in interest properly joined and

served as defendants is a citizen of the state in which

such action is brought.” On its face, this section suggests

that a defendant who is a citizen of the forum state—but

who would not otherwise destroy diversity—must be

properly joined and served in order to prevent removal.

In the case at hand, neither Charles E. Hine, M.D.

nor Charles Hine Laboratories, Inc. had been joined

or served at the time this action was removed to federal

court. It thus appears that any later amendment adding

them to the action on the basis of Doe defendant allega-

tons or otherwise would not mandate remand to the

state court. Their presence could not destroy diversity

of citizenship, although it would have prevented removal

initially had they been properly joined and served at

that time.

The defendants drew this Court's attention to a

possible contrary interpretation of section 1441(b) in

Pecherski v. General Motors Corp., 636 F.2d 1156 (8th

Cir. 1981). This Court is not persuaded that Pecherski

is convincing authority for the proposition that once an

action has been removed, the federal court must remand

it to state court if newly-named defendants or defendants

substituted for Doe defendants are citizens of the forum

state—even if their citizenship would not destroy di-

versity. The Court reaches this conclusion in part from

the clear language of section 1441.

Sla

Moreover, Purcherski differs factually from the case

at hand. There the plaintiff was a citizen of the forum

state. If the Doe defendant in question, “Jane Doe,”

were also a resident, the action could not have been re-

moved because there would have been no diversity.

Any argument that the action should not have been

removed solely on the ground that she was a resident

of the forum state was necessarily subsumed by the

threshold question of diversity jurisdiction. But in the

case now before the Court, the plaintiffs are not citizens

of California. The presence of California defendants

cannot destroy diversity. Therefore, the citizenship of

the Hine eniities would be significant only if they had

been joined and served at the time the action was re-

moved.

Both the Fifth and Tenth Circuits have held that once

an action has been removed, a plaintiff may waive his

right to object that some of the removing defendants

were residents of the forum court. McKay vy. Boyd Con-

struction Co., 769 F.2d 1084, 1086-87 (Sth Cir. 1985):

American Oil Company v. McMullin, 433 F.2d 1091

(10th Cir. 1970).

In Grubbs v. General Electric Credit C orp., 405 US.

699, 92 S. Ct. 1344, 31 L.Ed.2d 612 (1972), the United

States Supreme Court, in refusing to vacate a judgment

on the ground that the district court had allegedly lacked

jurisdiction, held that after an action had been tried on

the merits “the issue in subsequent proceedings is not

whether the case was properly removed, but whether the

federal district court would have had original jurisdiction

of the case had it been filed in that court.” Jd. at 702-03.

82a

In reaching this conclusion, the Court distinguished

its decision from American Fire & Casualty Co. v. Finn,

341 U.S. 6, 71 S. Ct. 534, 95 L.Ed. 702 (1951). In

Finn, the plaintiffs and one of the defendants had been

citizens of the same state. Even though judgment had

been rendered, the Court held that the action had been

improperly removed, and it remanded the case to the

district court with instructions to vacate the judgment.

The distinguishing feature of Finn was that there was

not complete diversity of citizenship. The district court

did not have jurisdiction to try the case.

Waiver, of course, is not an issue in this case. But

the authorities cited above suggest that removal pro-

cedures are not jurisdictional since they may be waived.

There thus appears to be no reason why the “joined and

served” language of section 1441 should not be strictly

construed in those cases where diversity would not be

destroyed. As noted previously, a district court has

original jurisdiction of matters between “citizens of a

State and citizens or Subjects of a foreign state.” 28

U.S.C. section 1332(a)(2). This Court has original

jurisdiction over the parties. The presence of potential

California defendants cannot destroy this jurisdiction;

nor would their presence require remand since they were

not joined and served when the action was removd.

B. Forum Non Conveniens

The Ninth Circuit has apparently not decided whether

federal law or state law should be applied in making a

forum non conveniens determination. In Miskow y.

Boeing, 664 F.2d 205 (9th Cir. 1981), the plaintiffs had

filed an action in state court which the state court had

dismissed for forum non conveniens. They then filed the

83a

Same action in federal court, and the district court dis-

missed it for the same reason. On appeal, the Ninth

Circuit declined to decide whether state law would govern

forum non conveniens, but noted that if there was any

doubt, the plaintiffs would have “a difficult burden to

convince this court that it should not follow the state

court’s determination.” Jd. at 207 f.2.

Because of the facts in the case, the Ninth Circuit's

conclusion seems ambiguous. But the Ninth Circuit clearly

followed the standards enunciated by the Supreme Court

in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct.

839, 91 L.Ed. 1055 (1947), in affirming dismissal of

the action on forum non conveniens.

More recently, in Sibaja v. Dow Chemical Co., 757

F.2d 1215 (11th Cir.), cert. denied, 106 S. Ct. 347

(1985), the Eleventh Circuit held that federal law, rather

than state law, applied to a forum non conveniens deter-

mination. In that action, which was brought by co-workers

of these plaintiffs, the Eleventh Circuit first discussed

whether forum non conveniens is substantive or pro-

cedural. It then concluded that federal law should apply

because a “trial court only reaches the state rule of

decision, relating to the character and result of the litiga-

tion, once it has decided to try the case and determine

whether the plaintiff has a valid claim for relief.” Jd. at

1219.

This Court finds the reasoning of Sibaja persuasive and

therefore applies federal forum non conveniens standards

to this action. In Piper Aircraft v. Reyno, 454 U.S. 235,

102 S. Ct. 252, 70 L.Ed.2d 419 (1981), the Supreme

Court stated that under its earlier decisions the principal

forum non conveniens inquiry is “convenience.” /d. at

84a

249. The Court further stated that “dismissal will ordi-

narily be appropriate where trial in the plaintiff's chosen

forum imposes a heavy burden on the defendant or the

court, and where the plaintiff is unable to offer any

specific reasons of convenience supporting his choice.” /d.

Traditionally the inquiry focuses upon the “private

interest factors” affecting the litigants’ convenience and

the “public interest factors” affecting the forum's con-

venience. Jd, at 258. Private interest factors include the

ease of access to sources of proof; the availability of

compulsory process for attendance of unwilling witnesses;

the cost of obtaining willing witnesses; and the possibility

of viewing the premises. Public factors include adminis-

trative difficulties, such as applying foreign law. /d. at f.6.

Applying these tests mandates dismissal of this action.

All of the plaintiffs are citizens of Costa Rica and that is

the situs of their alleged injuries. It is undisputed that

much of the proof, including their medical records, is

found in Costa Rica. Although plaintiffs have offered

to bring certain witnesses to this forum at their expense,

it is clear that this offer may only apply to “willing”

witnesses—and many potential witnesses may not be will-

ing or cooperative with the plaintiffs. It may thus be

impossible for this Court to compel the attendance of

vital witnesses or to compel the production of sources

of proof. The convenience of the litigants could only be

impaired by conducting the litigation in this forum.

Furthermore, the public factors bearing upon the ad-

ministrative difficulties flowing from this action require

dismissal. Neither the plaintiffs nor the defendants are

citizens of this forum, and plaintiffs’ alleged injuries did

not occur in the State of California. Yet this Court would

85a

be required to conduct an action in which all of the thirty-

four plaintiffs are Spanish-speaking, and many of their

physicians (as evidenced by their affidavits) and other

important witnesses may also be Spanish-speaking.

This Court would also be placed in the position of

applying an unfamiliar law—that of Costa Rica. In

Hurtado v. Superior Court of California, 11 Cal. 3d 574,

114 Cal. Rptr. 106 (1974), the California Supreme

Court held that in determining the law to apply, it would

analyze the respective interests of the states involved

(governmental interest approach) . . .” Jd. at 579. In

Hurtado—where the defendants were California residents,

the site of the accident was California, and the plaintiffs

had chosen California as their forum—the court held that

California law applied.

Under the Hurtado analysis, Costa Rica clearly has

the more important governmental interest in providing

a forum for residents allegedly injured in that country.

But except for the most tenuous of claims, there is almost

an absence of connections between the plaintiffs and the

named defendants and this forum. The fact that in the

past California courts may have litigated unrelated-DBCP

cases is not sufficient to find that California would have

a governmental interest in applying its law. If that were

the benchmark for deciding whether a state’s law would

apply or whether it provided a convenient forum, the

doctrines or forum non conveniens and choice of law

as we now know them would be eviscerated.

Finally, the plaintiffs contend that Costa Rica does

not provide an adequate forum. While the documents

submitted by the parties are somewhat contradictory,

there does not appear to be any evidence that the plain-

86a

tiffs could not obtain a fair trial in Costa Rica or that

tort remedies are not available to them. While discovery

may be conducted differently in a civil law country, that

is not sufficient basis for requesting that an American

court make a value judgment that these procedures are

inadequate. Costa Rica provides an adequate forum. The

named defendants have agreed to submit themselves to

the jurisdiction of Costa Rican courts.

Even if the Court had determined that state law applied,

it believes that its response to the forum non conveniens

inquiry would have been the same. In Holmes v. Syntex

Laboratories, 156 Cal. App. 3d 383, 202 Cal. Rptr. 386,

an action in which British citizens were suing for injuries

they allegedly sustained from drugs sold and ingested by

them in England, a California appellate court appeared

to restrict those situations in which California courts

would dismiss for forum non conveniens.

But in determining that California provided a con-

venient forum, the court emphasized certain factors:

1) several of the defendants maintained their principal

places of business in California; 2) the plaintiffs had

alleged that the torts had been committed in California;

and 3) the plaintiffs had presented facts demonstrating

a connection between the defendants’ conduct as it related

to their injuries and California. While this showing may

be minimal, it is clearly much greater than that found

in the case at hand.

Il. CONDITIONS OF DISMISSAL

Having considered the post-hearing briefs submitted by

the parties on the conditions of dismissal, the Court now

makes the following order:

87a

1. That the defendants submit to Costa Rican juris-

diction;

2. That the defendants agree to waive any statute of

limitations defenses that have arisen during the pendency

of this action, i.e., since its commencement in California

Superior Court; and

3. That the defendants consent to satisfy any final

judgment that may be rendered against them in Costa

Rica.

DATED: December 23, 1986

/s/ JOHN G. DAVIES

John G. Davies

United States District Court

88a

APPENDIX I

IN THE

CIRCUIT COURT OF THE ELEVENTH

JUDICIAL CIRCUIT OF FLORIDA

IN AND FOR DADE COUNTY

CASE NO. 87-05102

GENERAL JURISDICTION DIVISION

PERFECTO BARRANTES CABALCETA. et al.,

Plaintiff

STANDARD FRUIT COMPANY, et al.,

Defendant

CIVIL ACTION SUMMONS

THE STATE OF FLORIDA:

To Each Sheriff of Said State:

YOU ARE HEREBY COMMANDED to serve this

summons and a copy of the complaint or petition in this

action on defendant:

SHELL OIL COMPANY

by and through its registered agent of record

C.T. Corporation Systems

8751 W. Broward Blvd.

Plantation, FL

Each defendant is required to serve written defenses to

the complaint or petition on Plaintiff's attorney, to wit:

89a

LOUIS S. ROBLES, P.A., whose address is: 75 S.W. 8th

Street, Suite 401, Miami, FL 33130

M.Q. 2-12 2:30

within 20 days after service of this summons on that

defendant, exclusive of the day of service, and to file

the original of the defenses with the Clerk of this Court

either before service on Plaintiff's attorney or immediately

thereafter. If a defendant fails to do so, a default will be

entered against that defendant for the relief demanded in

the complaint or petition.

DATED ON February 4, 1987.

Richard P. Brinker,

as Clerk of said Court

By: /s/ JENNIS L. RUSSELL

as Deputy Clerk

(Court Seal)

90a

IN THE

CIRCUIT COURT OF THE ELEVENTH

JUDICIAL CIRCUIT IN AND FOR

DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO. 87-05102

PLAINTIFFS’ ORIGINAL COMPLAINT

PEFECTO BARRANTES CABALCETA,

BENITO ALVAREZ ALVAREZ,

HERNAN VALDERDE ROMAN

AND MARIA MONGE CASTILLO,

JOSE PEDRO CARRILLO DOVER

AND IRIS MARIA JIMENEZ,

CARLOS RAMON PEREZ FERNANDEZ,

GERARDO PEREZ TREJOS,

BISAL FENANDEZ DELGADO,

NOE MARENCO IGLESIAS

AND CANDIDA VARGAS VARGAS,

VICTOR MANUEL FUENTES MONGE

AND ISABEL CARRANZA CARRANZA,

MARIO PENA PENA

AND ROSA MARIA MEZA,

REDUCINDO PICADO PORRAS

AND CLARA ERLINDA CASTRO ROLES,

ELIECER BUSTOS RIVERA

AND ANA RODRIGUEZ CASTRO,

9la

VICTOR HUGO MADRIGAL SALAZAR,

ANGEL ANTONIO PEREZ TREJOS

AND TORENA ROTO DIAZ,

JOSE BERMUDEZ VARGAS

AND GRACE MARTINEZ MARTINEZ,

ELIECER PEREZ CAMPOS

AND VICTORIA ROSALES PIJARO,

ADAN MIRANDA CASTRO

AND MARIA ANTONIA OREZO GARCIA,

VICTOR RODRIGUEZ CASTRO

AND FRINDAL GARCIA CARRILLO,

EDWIN TENORIO PENA,

VICTOR MANUEL BUSTOS RUIZ,

JUAN MANUEL ZAMORA ZAMORA,

RAFAEL JIMINEZ CAMPOS,

GERARDO MORA ESPINOZA

AND FLOR MARI BENOCAL MADRIGAL,

JOSE MANUEL CASTRILLO CORTES

AND MELBA GUIDO RIVAS,

SAUL MUNOZ SIBAJA

AND RAFAELA ARRIETA PORRAS,

ROBERTO CERDA AGUILAR

AND SINAI TORRES ROSALES,

VICENTE FLORES VALVERDE

AND MARIA MAYELA VEGA FIGUREROA,

BOLIVAR ARIAS MORA,

92a

ALFONSO CAMPOS RODRIGUEZ

AND MARIA JIMINEZ BENAVIDES,

JUAN BAUTISTA VASOUEZ

AND MARIA ISABEL CHAVARRIA SALAS,

VICTOR SOLIS ROJAS

AND ROSA BADILLA PEREZ,

MIGUEL CHAVARRIA ZUNIGA,

JOAQUIN ZAMORA ARRIETA,

TACITO CAMPOS GARCIA

AND YAMILETH NURIS VILLEGAS DIAS,

SEGUNDO RODRIGUEZ RODRIGUEZ

AND MARY ELIZONDO UMANA,

ELIECER ACOSTA MONTERO

AND EMMA JIMENEZ RAMIREZ,

MANUEL CHAVES NUNEZ

AND MIREYA RODRIGUEZ RODRIGUEZ,

CARLOS GARITA SANDI

AND MELITINA GONZALES,

EDWIN GOMEZ CASTRILLO

AND ODILI TORRES ACUNA,

MAGIN FERNANDEZ GARCIA

AND PAULA CORTEZ GOMEZ,

NEFTALI ARAYA GARITA

AND LEDA ESPINOZA GAMBOA,

MARGARITO ZUNIGA GUTIERREZ

AND ANAIS SANCHEZ ROJAS,

DANIEL LORIA MORERA

AND PETRA BERTA NAVARRETE TORRES,

93a

MIGUEL ZUNIGA PENA

AND MARIA DE LA CRUZ GONZALES GONZALES,

ISIAS SANCHEZ RIVERA

AND FIDELIA ALVARADO SOLORZANO,

AUGUSTO LEITON RODRIGUEZ

AND MERCEDES RODRIGUEZ ARRIETA,

ANGEL LOBO ROJAS

AND MARGOT VARELA RAMIREZ,

CASIMIRO LOPEZ SANDOVAL

AND ALEJANDRINA VEGA VILLALOBOS,

JOSE SOSSA SOSSA

AND FLORY ALFARO JIMENEZ,

ANTONIO GUTIERREZ ZUMBADO

AND MARIA DE LOS ANGELES,

GERARDO PERAZA GARRO

AND NELLY UMANA ARIAS,

ELIAS HERNANDEZ BADILLA,

BENEDICTO CAMPOS CORRALES,

MARIO SOLANO JIMENEZ,

BOLIVAR ARIAS MORA,

PEDRO JIMENEZ MURILLO,

JOSE GAMBOA RODRIGUEZ,

RODRIGO GARITA SANDI,

RODRIGO ESOUIVEL AGUILAR and

ADALI CORDERO ALVARADO;

JOSE ANTONIO ROJAS ARAYA and

AURORA AGUERO;

94a

OLGER CARTIN ARAYA;

OLIDIO AGUERO ARGUELLO and

MARIA ESTER BERMUDEZ ALVARADO:

PORFIRO TREJOS BARRANTES and

ELISABETH SALAS RODRIGUEZ:

JUAN MANUEL JIMENEZ CAMBRONERO and

ELVIVA BELLO LOPEZ;

VASILIO SANCHEZ CARAZO and

VINCENTA GARCIA BARRIENTOS;

CLAUDIO SALAZAR CARBALLO and

DELFINA ALMANZA PEREZ:

RAMON VICTORIANO PEREZ FERNANDEZ and

ALEXA SUAREZ MORALES;

DAGOBERTO ARAYA GARITA;

JOSE ANTONIO ZUNIGA GUTIERREZ and

IRIABEL ESPINOZA RODRIGUEZ;

FRANCISCO MELENDEZ MELENDEZ and

ROSA LIZANO SATRUCH;

ADRIAN GOMEZ MONTERO;

MARIO TULIO VILLALOBOS MURRILLO and

LUZ MARIA AGUERO AGUERO;

OLMAN MIRANDA NUNEZ and

CLARIBEL MIRANDA CAJNA;

GARARDO ESPINOZA RODRIGUEZ and

MARIA SALAZAR BALTODANO;

EDWIN CORRALES ROJAS and

VIRGITA HERNANDEZ ARGUEDAS;

95a

MANUEL SANCHEZ SEGURA and

ALEIDE GONZALEZ MORERA;

VICTOR JULIO RODRIGUEZ VASQUEZ;

DOMINGO CAMPOS ALFARO;

ISMAIL CAMPOS ALPIZAR and

DEYANIRA CORDERO ALVARADO;

OVIDIO MORERA ALVARADO and

FLORINDA ROJAS DURAN;

ALVARO MORERA ALVAREZ and

JEREMY MORERA LOPEZ;

JESUS HERNANEZ BADILLA and

ELIDIETH ROMAN AZOFEIFA;

EDWIN LEON BARBOZA, ET. UX.;

EFRAIM HERRA BAP.BOZA;

WALDEMAR LOAIZA CALVO;

EDURADO PEREZ CAMPOS and

LUZ MARINA CAMPOS RODRIGUEZ;

CLAUDIO SALAZAR CARBALLO and

DELFINA ALMANZA PEREZ;

JORGE VAZQUEZ CARRILLO and

NOEMY SALINAS SALINAAS;

EFRAIN NUNEZ CASTRO, ET. UX.;

JOEL DINARTE CASTRO;

JORGE CASTRO CASTRO and

NURY BARBOZA MORA;

SERGIO ZAMORA CASTRO and

CLARA MARIA CHAVEZ VARGAS;

96a

ALCIBIADES NUNEZ CESPEDES and

MARIA ESTER MONTERO BOGANTES:;

MIGUEL ANGEL STELLER CHAVES and

MARIA DEL SOCORRO SANCHEZ OSES;

DIDIER ARIAS ELIZONDO and

IRENE BARRERA CHAVARRIA;

GREGORIA PEREZ ESPINOZA and

TERESA SANCHEZ ADOLIO;

SIGIFREDO MORALES ESPINOSA;

FRANCISCO ARIAS FALLAS and

MARITZA GOMEZ PEREZ;

RIGOBERTO GARITA GARITA and

MARIA CRISTINA CRUZ MARTINEZ;

MANUEL GOMEZ GOMEZ and

DEYANIRA ENRIQUEZ QUEVARA;

ANGEL SOLANO GONZALES and

LUZ RODRIGUES RAMIREZ;

FRANCISCO MORERA GONZALES and

ELOISA RAMIREZ CAMPOS;

MARCIANO SOLANO GONZALES and

FLORA ELENA FERNANDEZ ROBLES;

ANDRES VEGA GRANADOS and ‘

MARTA JIMENEZ GONZALES;

ALFREDO BERMUDEZ HERNANDEZ and

MARIA LUISA BERMUDEZ ORDONEZ;

JUAN FIGUEROA MATARRITA and

MIREYA PEREZ PEREIRA;

97a

URIEL NUNEZ MOYA and

MIRIAM CARTIN ARAYA:

ELI ORDONEZ MURILLO and

NATIVIDAD ROBLES DURATES;

ISMAEL SALAS NUNEZ and

BASELISA MEDINA MATARRITA;

ANTONIO VILLALOBOS ORTIZ and

MARITZA SOSSA SOSSA;

JORGE VEGA PEREZ;

CARLOS LUIS MUNOZ RAMIREZ;

FRANCISCO RAMIREZ RAMIREZ and

XINIA VINDAS CASTILLO;

VICENTE GUEVARA REYES and

MARIA CECILIA DURAN CORRALES;

GERARDO ESPINOZA RODRIGUEZ;

DANIEL ZUMBADO SALAS and

LEDA MARIA ROSALES ROSALES;

MARIO ZUMBADO SALAS and

ORLENDIA CASCANTE NAVARRO;

RUBEN MORALES SALAZAR and

BLANCA NIEVES ARIAS QUESADA;

ABELINO ROJAS SEQUEIRA;

JOSE OBANDO SEQUEIRA and

JUDITH CAMPOS GONZALEZ;

JOSE SIBAJA SOTA and

BLANCA NIEVES CASCANTE NAVARRO;

98a

ELE! ELIZONDO UMANA and

ROSALIA SOLANO GONZALEZ:

JUAN ELIZONDO UMANA:

ARNOLDO GALLO VALLEJOS:

MANUEL FLORES VALVERDE

Plaintiffs

versus

STANDARD FRUIT COMPANY,

STANDARD FRUIT AND STEAMSHIP COMPANY.

DOLE FRESH FRUIT COMPANY,

CASTLE & COOKE, INC.,

DOW CHEMICAL COMPANY

AND SHELL OIL COMPANY,

Defendants

PLAINTIFFS’ ORIGINAL COMPLAINT

COME NOW Plaintiffls PERFECTO BARRANTES

CABALCETA, BENITO ALVAREZ ALVAREZ. HER-

NAN VALDERDE ROMAN AND MARIA MONGE

CASTILLO, JOSE PEDRO CARRILLO DOVER AND

IRIS MARIA JIMENEZ, CARLOS RAMON PEREZ

FERNANDEZ, GERARDO PEREZ TREJOS, BISAI

FERNANDEZ DELGADO, NOE MARENCO IGLESI-

AS AND CANDIDA VARGAS VARGAS, VICTOR

MANUEL FUENTES MONGE AND ISABEL CAR-

RANZA CARRANZA, MARIO PENA PENA AND

ROSA MARIA MEZA, REDUCINDO PICADO PORRAS

AND CLARA ERLINDA CASTRO ROLES, ELIECER

BUSTOS RIVERA AND ANA RODRIGUEZ CASTRO.

VICTOR HUGO MADRIGAL SALAZAR, ANGEL

99a

ANTONIO PEREZ TREJOS AND TORENA ROTO

DIAZ, JOSE BERMUDEZ VARGAS AND GRACE

MARTINEZ MARTINEZ, ELIECER PEREZ CAMPOS

AND VICTORIA ROSALES PIJARO, ADAN MIRAN-

DA CASTRO AND MARIA ANTONIA OREZO GAR-

CIA, VICTOR RODRIGUEZ CASTRO AND FRINDAL

GARCIA CARRILLO, EDWIN TENORIO PENA, VIC-

TOR MANUEL BUSTOS RUIZ, JUAN MANUEL ZA-

MORA ZAMORA, RAFAEL JIMINEZ CAMPOS, GER-

ARDO MORA ESPINOZA AND FLOR MARI BENO-

CAL MADRIGAL, JOSE MANUEL CASTRILLO

CORTES AND MELBA GUIDO RIVAS, SAUL MU-

NOZ SIBAJA AND RAFAELA ARRIETA PORRAS,

ROBERTO CERDA AGUILAR AND SINAI TORRES

ROSALES, VINCENTE FLORES VALVERDE AND

MARIA MAYELA VEGA FIRUREROA, BOLIVAR

ARIAS MORA, ALFONSO CAMPOS RODRIGUEZ

AND MARIA JIMENEZ BENAVIDES, JUAN BAU-

TISTA VASQUEZ AND MARIA ISABEL CHAVAR-

RIA SALAS, VICTOR SOLIS ROJAS AND ROSA

BADILLA PEREZ, MIGUEL CHAVARRIA ZUNIGA,

JOAQUIN ZAMORA ARRIETA, TACITO CAMPOS

GARCIA AND YAMILETH NURIS VILLEGAS DIAS,

SEGUNDO RODRIGUEZ RODRIGUEZ AND MARY

ELIZONDO UMANA, ELIECER ACOSTA MONTERO

AND EMMA JIMENEZ RAMIREZ, MANUEL CHA-

VES NUNEZ AND MIREYA RODRIGUEZ RODRI-

GUEZ, CARLOS GARITA SANDI AND MELITINA

GONZALES, EDWIN GOMEZ CASTRILLO AND

ODILI TORRES ACUNA, MAGIN FERNANDEZ

GARCIA AND PAULA CORTEZ GOMEZ, NEFTALI

ARAYA GARITA AND LEDA ESPINOZA GAMBOA,

MARGARITO ZUNIGA GUTIERREZ AND ANAIS

100a

SANCHEZ ROJAS, DANIEL LORIA MORERA AND

PEIRA BERTA NAVARRETE TORRES. MIGUEL

ZUNIGA PENA AND MARIA DE LA CRUZ GON-

ZALES GONZALES. ISALAS SANCHEZ RIVERA AND

FIDELIA ALVARADO SOLORZANO, AUGUSTO LEI-

TON RODRIGLEZ AND MERCEDES RODRIGUEZ

ARRIETA, ANGEL LOBO ROJAS AND MARGOT VA-

RELA RAMIREZ. CASIMIRO LOPEZ SANDOVAL

AND ALEJANDRINA VEGA VILLALOBOS. JOSE

SOSSA AND FLORY ALFARO JIMENEZ. ANTONIO

GLTIERREZ ZUMBADO AND MARIA DE LOS AN-

GELES. GERARDO PERAZA GARRO AND NELLY

UMANA ARIAS, ELIAS HERNANDEZ BADILLA,

BENCDICTO CAMPOS CORRALES. MARIO SO-

LANO JIMENcEZ. BOLIVAR ARIAS MORA, PEDRO

JIMENEZ MURILLO JOSE GAMBOA RODRIGUEZ.

RODRIGO GARITA SANDI RODRIGO ESOUIVEL

AGLILAR AND ADALI CORDERO ALVARADO;

JOSE ANTONIO ROJAS ARAYA AND AURORA

\GULERO AGUERO, OLGER CARTIN ARAYA; OUI-

WO AGUERO ARGLELLO AND MARIA ESTER

BERMUDEZ ALVARADO, PORFIRO TREJOS BAR-

RANTES AND ELISABETH SALAS RODRIGUEZ;

JUAN MANULL JIMENEZ CAMBRONERO AND EL-

VIVA BELLO LOPEZ: VASILIO SANCHEZ CARAZO

\ND VINCENTA GARCIA BARRIENTOS: CLAUDIO

SALAZAR CARBALLO AND DELFINA ALMANZA

PEREZ: RAMON VICTORIANO PEREZ FERNAN-

DEZ AND ALEXA SUAREZ MORALES: DAGO-

BERIO ARAYA GARITA: JOSE ANTONIO ZUNIGA

GLITERREZ AND IRIABEL ESPINOZA RODRI-

GLEZ: FRANCISCO MELENDEZ MELENDEZ AND

ROSA LIZANO SATRUCH: ADRIAN GOMEZ MON-

10la

TERO; MARIO TULIO VILLALOBOS MURRILLO

AND LUZ MARIA AGUERO AGUERO:; OLMAN

MIRANDA NUNEZ AND CLARIBEL MIRANDA

CAJNA; GERARDO ESPINOZA RODRIGUEZ AND

MARIA SALAZAR BALTODANO; EDWIN COR-

RALES ROJAS AND VIRGITA HERNANDEZ ARGU-

EDAS; MANUEL SANCHEZ SEGURA AND ALEIDE

GONZALEZ MORERA: VICTOR JULIO RODRI-

GUEZ VASQUEZ; DOMINGO CASTRO ALFARO:

ISMAIL CAMPOS ALPIZAR AND DEYANIRA COR-

DERO ALVARADO; OVIDIO MORERA ALVARDO

AND FLORINDA ROJAS DURAN; ALVARO MOR-

ERA ALVAREZ AND JEREMY MORERA LOPEZ:

JESUS HERNANDEZ BADILLA AND ELIDIETH

ROMAN AZOFEIFA; EDWIN LEON BARBOZA: EF-

RAIM HERRA BARBOZA; WALDEMAR LOAIZA

CALVO; EDURADO PEREZ CAMPOS AND LUZ

MARINA CAMPOS RODRIGUEZ; CLAUDIO SALA-

ZAR CARBALLO AND DELFINA ALMANZA PER-

EZ; JORGE VAZQUEZ CARRILLO AND NOEMY

SALINAAS; EFRAIN NUNEZ CASTRO; JOEL DIN-

ARTE CASTRO; JORGE CASTRO CASTRO AND NU-

RY BARBOZA MORA; SERGIO ZAMORA CASTRO

AND CLARA MARIA CHAVEZ VARGAS: ALCIBI-

ADES NUNEZ CESPEDES AND MARIA ESTER MON.-

TERO BOGANTES; MIGUEL ANGEL STELLER

CHAVES AND MARIA DEL SOCORRO SANCHEZ

OSES; DIDIER ARIAS ELIZONDO AND IRENE BAR-

RERA CHAVARRIA; GREGORIA PEREZ ESPINOZA

AND TERESA SANCHEZ ADOLIO; SIGFREDO MOR-

ALES ESPINOSA: FRANCISCO ARIAS FALLAS AND

MARITZA GOMEZ PEREZ: RIGOBERTO GARITA

AND MARIA CRISTINA CRUZ MARTINEZ:

102a

MANUEL GOMEZ GOMEZ AND DEYANIRA EN-

RIQUEZ QUEVARA: ANGEL SOLANO GONZALES

AND LUZ RODRIGUES RAMIREZ; FRANCISCO

MORERA GONZALEZ AND ELOISA RAMIREZ

CAMPOS: MARCIANO SOLANO GONZALEZ AND

FLORA ELENA FERNANDEZ ROBLES; ANDRES

VEGA GRANADOS AND MARTA JIMENEZ GON-

ZALEZ; ALFREDO BERMUDEZ HERNANDEZ AND

MARIA LUISA BERMUDEZ ORDONEZ; JUAN FIGU-

EROA MATARRITA AND MIREYA PEREZ PERE-

IRA; URIEL NUNEZ MOYA AND MIRIAM CARTIN

ARAYA; ELI ORDONEZ MURILLO AND NATIVI-

DAD ROBLES DURATES; ISMAEL SALAS NUNEZ

AND BASELISA MEDINA MATARRITA; ANTONIO

VILLALOBOS ORTIZ AND MARTITZA SOSSA SOS-

SA: JORGE VEGA PEREZ; CARLOS LUIS MUNOZ

RAMIREZ: FRANCISCO RAMIREZ RAMIREZ AND

XINIA VINDAS CASTILLO; VICENTE GUEVARA

REYES AND MARIA CECILIA DURAN CORRALES;

GERARDO ESPINOZA RODRIGUEZ; DANIEL ZUM-

BADO SALAS AND LEDA MARIA ROSALES RO-

SALES: MARIO ZUMBADO SALAS AND ORLENDIA

CASCANTE NAVARRO; RUBEN MORALES SALA-

ZAR AND BLANCA NIEVES ARIAS QUESADA;

ABELINO ROJAS SEQUEIRA: JOSE OBANDO SE-

QUEIRA AND JUDITH CAMPOS GONZALEZ; JOSE

SIBAJA SOTA AND BLANCA NIEVES CASCANTE

NAVARRO; ELE! ELIZONDO UMANA AND ROSA-

LIA SOLANO GONZALEZ; JUAN ELIZONDO UM-

ANA; ARNOLDO GALLO VALLEJOS; and MANUEL

FLORES VALVERDE, and file this their Original Com-

plaint against the Defendants and allege as follows:

103a

1. This is an action for damages in excess of the sum

of Five Thousand and No/100 ($5,000.00) dollars.

2 Plaintiffs are citizens and residents of Costa Rica.

Defendants are doing business in, and are residents of

Dade County, Florida. Therefore, venue is proper in this

Court under Fa. Stat. ANN. § 47.051.

3. Defendant STANDARD FRUIT COMPANY is a

Delaware corporation with its corporate headquarters

located at 2300 Glades Road, East Tower. Boca Raton,

Florida, 33431-0980. Plaintiffs allege that during all times

material to this action, this Defendant has transacted sub-

stantial business in the State of Florida from which it has

derived substantial revenues. This Defendant can be served

at its corporate headquarters pursuant to FLA. STAT. ANN.

$$ 48.081(1)(d) and (2).

4. Defendant STANDARD FRUIT AND STEAM-

SHIP COMPANY is a Delaware corporation qualified to

transact business in the State of Florida. Service of pro-

cess of such Defendant is predicated on FLA. STAT. ANN.

$ 48.081(3) and Fia. STAT. ANN. § 48.091. ( Defendant's

resident agent designated for service of process pursuant

to § 48.091 is CT Corporation Systems, 8751 West Brow-

ard Boulevard, Plantation, Florida 33324.

5. Defendant DOLE FRESH FRUIT COMPANY is

a Nevada corporation qualified to transact business in the

State of Florida. Service of process of such Defendant is

predicated on FLA. Stat. ANN. § 48.081(3) and FLa.

STAT. ANN. § 48.091. Defendant's resident agent desig-

nated for service of process pursuant to § 48.091 is CT

Corporation Systems, 8751 West Broward Boulevard.

Plantation, Florida 33324.

104a

6. Defendant CASTLE & COOKE, INC. is a Hawaii

corporation qualified to transact business in the State of

Florida. Service of process of such Defendant is predicated

on Fria. Stat. ANN. § 48.08!1(3) and Fra. Stat. ANN,

$ 48.091. Defendant's resident agent designated for service

of process pursuant to § 48.091 is CT Corporation Sys-

tems, 8751 West Broward Boulevard, Plantation, Florida

33324.

7. Defendant DOW CHEMICAL COMPANY is a

Delaware corporation qualified to transact business in the

State of Florida. Service of process of such Defendant is

predicated on FLA. Stat. ANN. § 48.081(3) and FLa.

STAT. ANN. § 48.091. Defendant's resident agent desig-

nated for service of process pursuant to § 48.091 is CT

Corporation Systems, 8751 West Broward Boulevard,

Plantation. Florida 33324.

8. Defendant SHELL OIL COMPANY is a Delaware

corporation qualified to transact business in the State of

Florida. Service of process of such Defendant is predi-

cated on Fria. STAT. ANN. §$ 48.081(3) and FLa. STAT.

ANN. $ 48.091. Defendant's resident agent designated for

service of process pursuant to § 48.091 is CT Corporation

Systems, 8751 West Broward Boulevard, Plantation,

Florida 33324.

9. This cause of action is predicated on negligence

and intentional tort theories and on products liability

theories of strict liability, implied warranty and negli-

gence, as more specifically alleged herein. The products

complained of are nematocides containing the chemical

dibromochloropropane, or DBCP. The product manu-

factured, sold and distributed by the Defendant Dow

Chemical Company was marketed under the trade name

105a

“Fumazone.” The product manufactured, sold and dis-

tributed by the Defendant Shell Oil Company was

marketed under the trade name “Nemagon.”

10. Plaintiffs PERFECTO BARRANTES CABAL-

CETA, BENITO ALVAREZ ALVAREZ. HERNAN

VALDERDE ROMAN AND MARIA MONGE CAS-

TILLO, JOSE PEDRO CARRILLO DOVER AND IRIS

MARIA JIMENEZ, CARLOS RAMON PEREZ FER-

NANDEZ, GERARDO PEREZ TREJOS, BISAI FER-

NANDEZ DELGADO, NOE MARENCO IGLESIAS

AND CANDIDA VARGAS VARGAS, VICTOR MAN.

UEL FUENTES MONGE AND ISABEL CARRANZA

CARRANZA, MARIO PENA PENA AND ROSA MA-

RIA MEZA, REDUCINDO PICADO PORRAS AND

CLARA ERLINDA CASTRO ROLFS, ELIECER BUS.

TOS RIVERA AND ANA RODRIGUEZ CASTRO.

VICTOR HUGO MADRIGAL SALAZAR. ANGEL

ANTONIO PEREZ TREJOS AND TORENA ROTO

DIAZ, JOSE BERMUDEZ VARGAS AND GRACE

MARTINEZ, ELIECER PEREZ CAMPOS AND VIC-

TORIA ROSALES PIJARO. ADAN MIRANDA CAS-

TRO AND MARIA ANTONIA OREZO GARCIA.

VICTOR RODRIGUEZ CASTRO AND FRINDAL

GARCIA CARRILLO, EDWIN TENORIO PENA,

VICTOR MANUEL BUSTOS RUIZ, JUAN MANUEL

ZAMORA ZAMORA, RAFAEL JIMINEZ CAMPOS.

GERARDO MORA ESPINOZA AND FLOR MARI

BENOCAL MADRIGAL, JOSE MANUEL CASTRIL-

LO CORTES AND MELBA GUIDO RIVAS, SAUL

MUNOZ SIBAJA AND RAFAELA ARRIETA POR-

RAS, ROBERTO CERDA AGUILAR AND SINAI

TORRES ROSALES, VICENTE FLORES VALVERDE

AND MARIA MAYELA VEGA FIGUREROA, BOLI-

106a

VAR ARIAS MORA, ALFONSO CAMPOS RODRI-

GUEZ AND MARIA JIMENEZ BENAVIDES, JUAN

BAUTISTA VASQUEZ AND MARIA ISABEL CHA-

VARRIA SALAS, VICTOR SOLIS ROJAS AND ROSA

BADILLA PEREZ, MIGUEL CHAVARRIA ZUNIGA,

JOAQUIN ZAMORA ARRIETA, TACITO CAMPOS

GARCIA AND YAMILELTH NURIS” VILLEGAS

DIAS. SEGUNDO RODRIGUEZ AND MARY ELI-

ZONDO UMANA, ELIECER ACOSTA MONTERO

AND EMMA JIMENEZ RAMIREZ MANUEL

CHAVES NUNEZ AND MIREYA RODRIGUEZ ROD-

RIGUEZ. CARLOS GARITA SANDI AND MELITINA

GONZALES. EDWIN GOM-Z CASTRILLO AND

ODILI TORRES ACUNA, MAGIN FERNANDEZ

GARCIA AND PAULA CORTEZ GOMEZ, NEFTALI

ARAYA GARITA AND LEDA ESPINOZA GAMBOA,

MARGARITO ZUNIGA GUTIERREZ AND ANAIS

SANCHEZ ROJAS, DANIEL LORIA MORERA AND

PLTRA BERTA NAVARRETE TORRES, MIGUEL

ZUNIGA PENA AND MARIA DE LA CRUZ GON-

ZALES. ISAIAS SANCHEZ RIVERA AND FIDELIA

ALVARADO SOLORZONO, AUGUSTO LEITON

RODRIGUEZ AND MERCEDES RODRIGUEZ AR-

RILTA, ANGEL LOBO ROJAS AND MARGOT VA-

RELA RAMIREZ, CASIMIRO LOPEZ SANDOVAL

AND ALEJANDRIA VEGA VILLALOBOS, JOSE

SOSSA SOSSA AND FLORY ALFARO JIMENEZ,

ANTONIO GUTIERREZ ZUMBADO AND MARIA

DE LOS ANGELES, GERARDO PERAZA GARRO

AND NELLY UMANA ARIAS, LLIAS HERNANDEZ

BADILLA, BENEDICTO CAMPOS CORRALES.

MARIO SOLANO JIMENEZ. BOLIVAR ARIAS MO-

RA. PEDRO JIMENEZ MURILLO, JOSE GAMBOA

107a

RODRIGUEZ, RODRIGO GARITA SANDI, ROD-

RIGO ESQUIVEL AGUILAR AND ADALI COR-

DERO ALVARADO; JOSE ANTONIO ROJAS ARA-

YA AND AURORA AGUERO AGUERO; OLGER

CARTIN ARAYA; QUIDIO AGUERO ARGUELLO

AND MARIA ESTER BERMUDEZ ALVARADO:

PORFIRO TREJOS BARRANTES AND ELISABETH

SALAS RODRIGUEZ; JUAN MANUEL JIMENEZ

CAMBRONERO AND ELVIVA BELLO LOPEZ: VA-

SILIO SANCHEZ CARAZO AND VINCENTA GAR-

CIA BARRIENTOS; CLAUDIO SALAZAR CARA-

BALLO AND DELFINA ALMANZA PEREZ; RA-

MON VICTORIANO PEREZ FERNANDEZ AND

ALEXA SUAREZ MORALES; DAGOBERTO ARA-

YA GARITA; JOSE ANTONIO ZUNIGA GUTIERREZ

AND IRIABEL ESPINOZA RODRIGUEZ: FRANCIS-

CO MELENDEZ MELENDEZ AND ROSA LIZANO

SATRUCH; ADRIAN GOMEZ MONTERO: MARIO

TULIO VILLALOBOS MURRILLO AND LUZ MA-

RIA AGUERO AGUERO; OLMAN MIRANDA NU-

NEZ AND CLARIBEL MIRANDA CAJNA; GERAR-

DO ESPINOZA RODRIGUEZ AND MARIA SALA-

ZAR BALTODANO,; EDWIN CORRALES ROJAS

AND VIRGITA HERNANDEZ ARGUEDAS: MAN.

UEL SANCHEZ SEGURA AND ALEIDE GONZALEZ

MORERA; VICTOR JULIO RODRIGUEZ VASQUEZ;

DOMINGO CASTRO ALFARO; ISMAIL CAMPOS

ALPIZAR AND DEYANIRA CORDERO ALVARA-

DO; OVIDIO MORERA ALVARADO AND FLORIN-

DA ROJAS DURAN; ALVARO MORERA ALVAREZ

AND JEREMY MORERA LOPEZ: JESUS HERNAN-

DEZ BADILLA AND ELIDIETH ROMAN AZOFEI-

FA; EDWIN LEON BARBOZA; EFRAIM HERRA

108a

BARBOZA: WALDEMAR LOAIZA CALVO; EDUA-

RADO PEREZ CAMPOS AND LUZ MARINA CAM-

POS RODRIGUEZ: CLAUDIO SALAZAR CARBAL-

LO AND DELFINA ALMANZA PEREZ; JORGE VAZ-

QLEZ CARRILLO AND NOELMY SALINAS SALI-

NAAS: EFRAIN NUNEZ CASTRO: JOEL DINARTE

CASTRO: JORGE CASTRO CASTRO AND NURY

BARBOZA MORA;: SERGIO ZAMORA CASTRO

AND CLARA MARIA CHAVEZ VARGAS: ALCI-

BIADES NUNEZ CESPEDES AND MARIA ESTER

MONTERO BOGANTES: MIGUEL ANGEL STEL-

LER CHAVES AND MARIA DEL SOCORRO SAN-

CHEZ OSES: DIDIER ARIAS ELIZONDO AND

IRENE BARRERA CHAVARRIA: GREGORIA PE-

REZ ESPINOZA AND TERESA SANCHEZ ADOLIO;

SIGIFREDO MORALES ESPINOSA: FRANCISCO

ARIAS FALLAS AND MARITZA GOMEZ PEREZ:

RIGOBERTO GARITA GARITA AND MARIA CRIS-

TINA CRUZ MARTINEZ: MANUEL GOMEZ GO-

MEZ AND DEYANIRA ENRIQUEZ QUEVARA; AN-

GEL SOLANO GONZALES AND LUZ RODRIGUES

RAMIREZ: FRANCISCO MORERA GONZALEZ

AND ELOISA RAMIREZ CAMPOS; MARCIANO

SOLANO GONZALEZ AND FLORA ELENA FER-

NANDEZ ROBLES: ANDRES VEGA GRANADOS

AND MARTA JIMENEZ GONZALES: ALFREDO

BERMUDEZ HERNANDEZ AND MARIA LUISA

BERMUDEZ ORDONEZ: JUAN FIGUEROA MA-

TARRITA AND MIREYA PEREZ PEREIRA; URIEL

NUNEZ MOYA AND MIRIAM CARTIN ARAYA:

ELT ORDONEZ MURILLO AND NATIVIDAD RO-

BLES DURATES: ISMAEFL SALAS NUNEZ AND BA-

SELISA MEDINA MATARRITA: ANTONIO VIL-

109a

LALOBOS ORTIZ AND MARITZA SOSSA SOSSA;

JORGE VEGA PEREZ: CARLOS LUIS MUNOZ RA-

MIREZ; FRANCISCO RAMIREZ AND XINIA_ VIN-

DAS CASTILLO; VICENTE GUEVARA REYES AND

MARIA CECILIA DURAN CORRALES: GERARDO

ESPINOZA RODRIGUEZ: DANIEL ZUMBADO SA.

LAS AND LEDA MARIA ROSALES ROSALES: MA-

RIO ZUMBADO SALAS AND ORLENDIA CAS-

CANTE NAVARRO; RUBEN MORALES SALAZAR

AND BLANCA NIEVES ARIAS QUESADA;: ABE-

LINO ROJAS SEQUEIRA: JOSE OBANDO SEQUE-

IRA AND JUDITH CAMPOS GONZALEZ: JOSE SI-

BAJA SOTA AND BLANCA NIEVES CASCANTE

NAVARRO; ELEI ELIZONDO UMANA AND ROSA-

LIA SOLANO GONZALEZ: JUAN ELIZONDO U-

MANA; ARNOLDO GALLO VALLEJOS: and MAN-

LEL FLORES VALVERDE. allege that they were

exposed to Fumazone and Nemagon in years up to and

including the early 1980's and as a result of such ex-

posure have suffered serious and permanent mental and

physical injuries incl

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