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Farmers win $10 million in suit against DuPont.

Fungicide Damaged Crops, Forcing Some Farmers Out of Business

When 23 Southeast Arkansas farmers treated their tomato crops in 1989 and 1990 with the chemical Benlate DF,they never could have imagined the misery they would reap.

Three years later, several have quit farming and several have been forced to consider bankruptcy. But a $10.65 million judgment earlier this month against DuPont Co., manufacturer of Benlate, should help soothe some pain.

"It rights some of the wrongs that have happened in the last three or four years," says Randy Clinton, who raises about 100 acres of tomatoes in Bradley County. "I'm a professional farmer and, trust me, it was a chore to work through the Benlate years."

He has had to mortgage property his family has owned for generations to hang on financially.

In 1990, the farmers in Bradley, Lincoln and Drew counties suspected low crop production was caused by Benlate DF, a fungicide manufactured by DuPont. They hired Evans Benton, a Little Rock lawyer, to represent them.

Through months of investigation, Benton discovered that Benlate DF had become contaminated with atrazine, a herbicide or weed killer, at a plant in Blytheville. Clinton says the combination destroyed as much as 75 percent of his crop in 1989 and 1990, although he concedes bad weather contributed in 1989.

Benton soon realized DuPont was not going to settle his clients'case out of court. So in 1991, Benton brought in Bruce McMath, a lawyer with the McMath Firm in Little Rock, to assist him.

DuPont learned of some claims against Benlate DF in the spring of 1989, McMath says, and didn't do a recall. But when a pansy farmer in Bismarck, Wis., lost 20 million pansies after applying Benlate DF, the Environmental Protection Agency forced DuPont to do a complete recall in the spring of 1991.

McMath's and Benton's clients already had purchased Benlate DF, however, and applied it in 1989 and 1990 before the recall.

By 1991, the Wilmington, Del., chemical company paid about $500 million to settle almost 2,000 complaints of crop damage by Benlate. But in November 1992, DuPont decided to stop the settlements, claiming its own tests showed Benlate DF didn't cause crop damage.

DuPont's |Corporate Pride'

"DuPont has gotten their corporate pride into this, which is unfortunate," McMath says. "They made a mistake and they ought to pay for it. Their corporate inertia is moving in the direction of defense rather than payment. Their original instincts were right: to pay the claims, be a big boy about it and go on."

DuPont still faces as many as 400 Benlate damage suits nationwide, all of which, McMath says, DuPont is fighting "tooth and toenail."

The Arkansas case, decided by a federal jury in El Dorado, lasted a month. It was the first Benlate trial nationally to go to a jury.

Benton says DuPont's defense was to rake the farmers over the coals, drag them through the mud and subpoena everything in sight. DuPont used its corporate power to try to intimidate his clients, Benton says.

"It was unbelievable," Benton says. "They subpoenaed the supply houses, our clients' bank records, tomato buyers. You take anybody and subject them to that kind of scrutiny and you'll find something."

Clinton says DuPont's efforts were unwarranted.

"There is no question that they boxed and sold that Benlate, which was adulterated with atrazine," Clinton says. "DuPont knew that and they brought that stuff in here and sold it. They did that without regard with what it would do to crops."

Benton says he and McMath felt very confident about the jury's decision when they received word from the judge that he had received a note from the jury. All attorneys were asked to return to the courtroom.

"We joked that it would be great if they were asking for a calculator," Benton recalls.

In fact, that was what the jurors had requested. They wanted the calculator to add up damages against DuPont.

Mike Adams of Shreveport, La., DuPont's lead attorney in the El Dorado case, could not elaborate extensively because of a gag order from a judge in Florida that prevents DuPont or any of its attorneys from talking about Benlate cases.

Still Sold on DuPont

He did say, however, that DuPont was disappointed in the verdict at El Dorado and it plans to appeal.

"This was what is called a Benlate I case, meaning it involves atrazine contamination," Adams says. "Most of the cases in the rest of the country do not involve atrazine contamination, so the issues are really entirely different."

Benton says the appeal process could take another year before the case finally is completed.

Despite the problems, Clinton is still sold on DuPont products.

"People made a mistake, they tried to cover it up and it caught up with them," Clinton says. "Just because of the Benlate problem, that is not a sign that they are not a good company or that they don't make good products. I intend to continue using DuPont products every day."
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Title Annotation:E.I. du Pont de Nemours and Company Inc.
Author:Smith, David (American novelist)
Publication:Arkansas Business
Date:Sep 20, 1993
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Next Article:Commission OKs mall area development.

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