Latest Developments in Ecuadorian Toxic Tort Case

Photo by Lotte Löhr on Unsplash

Since at least the early 1990s, Central and South American residents have been litigating in U.S. courts about their exposure to toxic pesticide called dibromochloropropane (“DBCP”). In the latest decision, Marquínez v. Dole Food Company, Judges Andrews in the District of Delaware held that a consolidated action on behalf of 65 Ecuadorian banana plant workers should not be dismissed based on the statute of limitations. In reaching this conclusion, the court needed to analyze Ecuadorian law and its relationship to the law of Delaware. This post briefly reviews how the court addressed foreign law as well as the interesting issues with which the court grappled.

The Questions

In 2012, Ecuadorian plaintiffs sued Dole, Dow Chemical, Shell, and other companies in federal court in Delaware for exposure to DBCP. The various cases were consolidated in front of Judge Andrews. The decision that is the subject of this post responded to a seemingly simple question: Does the statute of limitations bar these claims based on harms felt from the 1960s to 1980s? But this question is far from simple.

In a previous decision, the court concluded that Ecuadorian law governed the substance of most claims but Delaware law would determine the statute of limitations. Like many jurisdictions, Delaware has a “borrowing statute,” which provides that the statute of limitations for a claim arising outside of the state should be the shorter of the periods provided under Delaware law and the law of the place where the claim accrued. So, here, the statute of limitations would be the shorter of the statute of limitations applicable in Delaware and Ecuador.

Determining each of those periods presented complexities. Calculating the Delaware statute of limitations is complicated for reasons we do not need to consider deeply here. Briefly, although the Delaware statute of limitations is two years, a prior decision determined that the limitations period had been tolled by the filing of an overlapping class action in the Southern District of Texas. Thus, the 2012 complaint would have been timely under Delaware law.

The Ecuadorian statute of limitations also presented challenges. Everyone agreed that the Ecuadorian statute of limitations for a typical negligence claim would have been four years, and they agreed that the four-year period had elapsed. No tolling applied. But plaintiffs argued that their action could have been filed in the Ecuadorian courts as a so-called “protective action” for the protection of constitutional rights under the 2008 Ecuadorian Constitution. Under Ecuadorian law, there is no statute of limitations for a protective action. So if the plaintiffs were correct, then Delaware’s tolled statute of limitations would be the shorter one, and the case could proceed.

The Answers

Under Federal Rule of Civil Procedure 44.1, federal courts may consider any relevant material or source to determine the content of foreign law. Expert testimony is common in such situations, and indeed, in this case, both parties presented experts. Also common in these cases is that party-provided experts disagree with each other. That happened here too. Less common was this judge’s response: to ask the parties to get together and jointly nominate an expert for the court. The parties did so, and the jointly identified expert provided a declaration and sat for a deposition. Based on all the information provided, the court reached a series of conclusions (some of which I omit for brevity).

One key conclusion of the court was that it did not matter whether a negligence action or a protective action was the “most analogous” Ecuadorian form. Instead, the court asked only if the plaintiffs’ case could have been pleaded as a protective action, again, regardless of whether that would have been the most natural fit.

Relatedly, and relying on the jointly identified expert, the court also concluded that under Ecuadorian law, a party could bring a protective action even if it overlapped with a time-barred negligence claim. In other words, the fact that plaintiffs could have sued for negligence in Ecuador did not affect the analysis, even if such an action would have been the most analogous and even if such an action was time barred.

Turning to the complaint itself, and relying on the same expert, the court concluded that the plaintiffs could have pleaded their case against defendants as a protective action. That conclusion held even though their complaints in the United States did not mention a protective action, and even though they sought different remedies than typically follow from a protective action. (The expert explained away the lack of reference to the protective action in the complaint because the suit was filed in the United States, not Ecuador. The judge had another explanation, quipping “I too am not surprised, although for different reasons. The complaints in this case were filed in 2012 by American lawyers who probably were not paying close attention to recent developments in Ecuadorian constitutional law.”)

Yet another issue was whether the protective action device was retroactive. Again, the protective action was a creation of the 2008 Ecuadorian Constitution. All of the allegations in the complaint related to conduct that happened before 2008. Relying on the jointly identified expert, the court concluded that Ecuadorian courts would have heard a protective action for claims arising before 2008.

In sum, to apply Delaware’s borrowing statute, the court needed to compare an Ecuadorian action with no statute of limitation versus a Delaware action with a defined limitations period but for which that period had been tolled by the filing of a separate class action in Texas almost two decades earlier. The court concluded that the tolled Delaware period was shorter, so it applied, and because of the tolling, the plaintiffs’ claims could proceed.

Conclusion

The latest twist in the DBCP litigation does not end the dispute, but instead moves it one step closer to resolution on the merits. This decision also highlights the kinds of foreign law issues that arise in U.S. courts, and the tools available for judges to resolve them.