I. Introduction
The expansion of heavy pesticide use and the migration of cash crop farming into remote regions of developing Latin American countries has resulted in dire health consequences for certain local populations. Such is the case amongst the tobacco farming families in Provincia De Misiones, Argentina, whose children have experienced devastating birth defects. The use of civil claims by these Argentinian families to pursue compensation is illustrative of how transnational tort cases brought in the United States (US) can be used as a means of achieving accountability for agribusinesses’ harmful practices and products involving pesticides.
Misiones is located in the remote far north-eastern sector of Argentina, where tobacco was first grown in 1930, primarily for use in domestic cigarettes. In the early 1990s, Argentina began promoting and implementing conservational tillage techniques, known as no-till farming, which lessened the impacts of erosion on the land. No-till farming involved the use of pesticides to clear fields before and after crops were grown. At that time, the Monsanto Company was also promoting the use of no-till farming in Argentina, along with the use of its herbicide Roundup.Footnote 1 Historically, the primary type of tobacco in Misiones was ‘Criollo Misionero’, which was native to the region and typically grown on small family-owned farms.Footnote 2 However, tobacco farming in Misiones was transformed with the advent of no-till farming and its corresponding increase in pesticide use, as well as by the prevalence of tobacco brokerage companies for transnational cigarette corporations. From then on, the tobacco grown was predominantly Burley for use in cigarettes to be sold in the US and around the world.Footnote 3 While the number of tobacco farms and overall tobacco production in the US have both plummeted since the 1950s, tobacco production in developing countries, where costs and environmental controls are much lower, has greatly increased.Footnote 4
In the mid-1980s, Massalin Particulares, a Philip Morris subsidiary, and certain other entities created Tabacos Norte to purchase Burley tobacco through contracts with farmers in Misiones.Footnote 5 Tabacos Norte was integrally involved with the cultivation of the tobacco in Misiones and, along with Philip Morris USA’s Tobacco Technology Group, provided technical support to the farmers. Copious amounts of pesticides were required to farm tobacco intended for the international market and tobacco farmers and their families in Misiones were particularly vulnerable to the consequences of this type of agricultural development. They lived on the same land where they grew the tobacco and their farms were typically less than ten acres with little mechanization and no electricity.Footnote 6 Streams and other surface water on the farms were also used for bathing, laundry and consumption by the families.Footnote 7
Concern about increasing health problems coinciding with the exploding usage of pesticides in Argentina has steadily grown. Largely driven by the growth of Argentina as a leading soy producer that extensively utilizes genetically modified seeds and their corresponding herbicides like Roundup, researchers in Argentina began addressing public health impacts of these herbicides. A team of scientists in Argentina led by Dr Andres Carrasco published a study in 2010 that found glyphosate, the key ingredient in Roundup, caused brain, intestinal and heart defects in the embryos of amphibians at doses lower than those used in the fumigation of soy fields.Footnote 8 This work led to government investigations as well as a lawsuit by an Argentinian environmental organization in 2009, which unsuccessfully sought to ban glyphosate in Argentina due to health and environmental concerns.Footnote 9 In addition, an epidemiology study of a population in bordering Paraguay also found a significant association between parental exposure to pesticides sprayed on soybeans and other crops, and congenital malformations.Footnote 10 Finally, Dr Hugo Demaio, a paediatric neurosurgeon in Misiones, reported seeing live births with neural tube defects at rates 70 times higher than in the province overall, and found that all the families with severe deficits came from highly fumigated areas.Footnote 11 The results of these local investigations support a developing body of scientific studies that associate pesticides with the types of congenital malformations being seen in the children of tobacco farmers in Misiones.Footnote 12
News of the medical community findings on this environmental health hazard led the affected Argentinian families to explore their legal options, including where lawsuits against US companies allegedly responsible for pesticide injuries could be most successful. As set forth below, the families proceeded in a US court in which the law concerning forum non conveniens (FNC) at the time of filing was favourable to foreign plaintiffs electing to sue there. However, the ability of plaintiffs to overcome the challenge posed by changes in the FNC law would ultimately determine their ability to proceed against certain agribusiness companies in the US.
II. Birth Defect Victims Approach US Courts for Justice
The US civil justice system provides for monetary compensation for personal injuries suffered by persons harmed by a defendant’s product or conduct. In order to proceed with such a claim in US courts, a foreign plaintiff must establish that jurisdiction exists and that the claims are cognizable under the laws of the country where the action arose. A foreign plaintiff must also be prepared to withstand the challenge of FNC, a doctrine that gives courts discretion to decline jurisdiction when the convenience of parties and ends of justice would be better served if the action were tried in an alternative forum.Footnote 13
In February 2012, Tamara Lujan Hupan and seven other children with spina bifida and other birth defects filed a lawsuit, Hupan et al v Alliance One International, Inc., in the US state of Delaware, seeking compensation from certain Philip Morris affiliated companies and Monsanto for their injuries. The plaintiffs chose to proceed in this forum in part because of the well-established record of the civil justice system in the US providing compensation to injured persons, the right to a trial by jury and Delaware’s long-time recognition of the right of foreign plaintiffs to bring suit in its courts against companies incorporated therein.Footnote 14 Ultimately, a total of 127 children with birth defects from tobacco farming families in Misiones joined in this action. Unlike other actions brought by foreign plaintiffs under the Alien Tort Statute involving violations of the law of nations,Footnote 15 this case was filed on the basis of traditional and well-established state tort law.
The Hupan lawsuit alleged that 11 Philip Morris defendant companies controlled and were responsible for Tabacos Norte, which negligently supplied Roundup and other pesticides, and required their use as a condition of the agreement to purchase the tobacco grown by these farmers.Footnote 16 The suit further alleged that Monsanto manufactured a defective and unreasonably dangerous product, Roundup, which was predominantly used by plaintiffs’ parents on their tobacco farms. Plaintiffs claimed that as a result of the families’ participation in Tabacos Norte and their extensive use of pesticides (including Roundup), they were exposed to the pesticides on their farms, which resulted in the children’s birth defects.Footnote 17
A preliminary issue of major significance in Hupan was whether Delaware or Argentina law would apply when conflicts of law existed. After extensive briefing and expert evidentiary testimony over two years, the Hupan case moved forward on the basis that Argentina law would govern certain substantive legal issues.Footnote 18 One of the major impacts of the court’s acceptance of Argentina law was that a primary defense, federal pre-emption, was no longer available to Monsanto. Pesticide manufacturers commonly defend ‘failure to warn’ state tort claims by arguing that they are pre-empted or not permitted when the product label has been approved by the US Environmental Protection Agency.Footnote 19
While the Hupan case was being litigated, the law on the appropriateness of Delaware as a forum for such cases changed, having a dramatic effect on this litigation and imposing even more challenges for foreign plaintiffs seeking to sue in Delaware. In 2014, the Delaware Supreme Court decided Martinez v E.I. Dupont de Nemours & Co. (Martinez II), finding that a defendant may rely on ‘overwhelming hardship’ if forced to defend itself in Delaware, thereby allowing Delaware courts to dismiss cases on the basis of the FNC doctrine. The decision reversed prior rulings of lower courts, which had continuously decided that overwhelming hardship was not preclusive or an insurmountable burden.Footnote 20 Shortly after this decision was issued, Philip Morris filed to dismiss the claims against it in the Hupan case, relying on the Martinez II decision. The court granted the motion, finding Philip Morris had demonstrated that the requisite overwhelming hardship would exist.Footnote 21 Finally, the Delaware Supreme Court affirmed the lower court’s ruling that the availability of an alternative forum need only be considered as a factor in the FNC analysis, but is not a threshold requirement, thereby ending plaintiffs’ claims against Philip Morris in Delaware.Footnote 22
However, the Delaware litigation did involve a full inquiry into the substantive laws of Argentina, which are strongly supportive of such claims. As the Delaware court recognized, ‘Argentina is a civil law jurisdiction with its own courts and court rules that are capable of hearing this type of case … Argentina has a strong and distinct interest in legal determinations regarding the safety of products that are affecting their children and families.’Footnote 23 Accordingly, for the Misiones plaintiffs, the legal option now available and most likely to achieve their objective of obtaining compensation from Philip Morris necessary to care for their life-long birth injuries, is the pursuit of these claims in their home country.
III. Continuing Transnational Litigation in the US Against Agribusiness
Hupan and other pesticide cases pending in the USFootnote 24 may assist future foreign plaintiffs by providing a roadmap on forum and other important factors when considering to bring suits in the US. For instance, the decision in Hupan that the substantive law of the plaintiff’s home country applies in a US court will assist foreign plaintiffs in overcoming the pre-emption defence commonly asserted by pesticide manufacturers.
Moreover, litigation is ongoing in US courts to hold Monsanto accountable for Roundup’s negative impacts subsequent to the World Health Organization’s 2015 evaluation and classification of the herbicide glyphosate contained in Roundup as a probable carcinogen.Footnote 25 The first of these cases to go to trial in a US state court resulted in a substantial verdict for the plaintiff.Footnote 26 A federal US court has also recently found, after an extensive review of the scientific and medical evidence on the carcinogenicity of glyphosate, that such evidence is sufficiently reliable to allow hundreds of cases filed in federal US courts to proceed.Footnote 27 These results add to the growing body of evidence that pesticides made by US agribusinesses can cause cancer and other serious injury, and should be of utility to other plaintiffs in pesticide injury cases.
IV. Conclusion
As the above analysis shows, the FNC doctrine continues to present perhaps the most difficult challenge to foreign plaintiffs seeking to litigate against agribusinesses in US courts for harm done in their home countries. As Hupan demonstrates, a court’s final decision on FNC may take years to adjudicate, a factor that foreign plaintiffs must take into serious consideration when deciding whether to proceed in a US court. Since the decision on whether the court is an appropriate forum is at the discretion of the trial judge, courts in other states have interpreted the doctrine of FNC differently than the Delaware courts, permitting foreign plaintiffs to proceed.Footnote 28 Key to forum considerations is proof that the tortious conduct, such as corporate decision-making on health and safety involving practices or products utilized abroad, took place in the US.Footnote 29
Holding US agribusinesses accountable in US courts for injuries suffered in foreign countries due to pesticide exposure will continue to be a daunting task. The cases most likely to succeed in Delaware and perhaps other courts in the US will contain strong evidence of corporate decision-making taking place in the US by witnesses also located in the US resulting in harmful pesticide exposure in foreign countries where US agribusiness products and practices are employed. Maintaining forum in a US court will also entail convincing the court at the trial and appellate levels that undertaking such cases does not constitute an overwhelming hardship on agribusinesses, a high but not impossible bar.
