A federal judge in Manhattan has ruled that personal injury claims by a group of Central and South Americans who say they were sickened by pesticides used at banana plantations decades ago but who were absent from a similar case filed in 1993 were not barred by New York's statute of limitations.

U.S. District Judge Paul Engelmayer of the Southern District of New York ruled that the statute of limitations clock was stopped in New York from 1993 to 2010 for claims brought in 2011 by plaintiffs from Costa Rica, Ecuador and Panama who say they were injured by the pesticide dibromochloropropane, or DBCP.

By ruling in the case, Engelmayer waded into a split among Southern District judges as to whether or not New York law allows “cross-jurisdictional class action tolling,” or pausing on New York's three-year statute of limitations for class members while a class action is pending in another state.

The class in Chavez v. Occidental, 17-cv-3459, is made up of more than 250 Central Americans who lived or worked on banana plantations from the 1960s to the early 1980s where DBCP was used.

DBCP is known to cause cancer, sexual and reproductive abnormalities and infertility. The plaintiffs say they were never warned of the dangers of DBCP and thus did not wear protective equipment.

Their claims are similar to those brought in long-running DBCP litigation first filed in 1993 in Texas against Occidental Chemical Co. and other firms.

For roughly the next few decades, the litigation ran along what Engelmayer called a “long train of procedural misadventures,” winding through courts in Hawaii and Costa Rica and ending up back in Texas state court in 2010, when the plaintiffs took a voluntary dismissal after failing to win class certification.

In 2011, a group of plaintiffs with similar claims but who were absent from the original DBCP suit filed a complaint in Louisiana that also cut a circuitous route through courts across the country. In 2012, the same plaintiffs also brought claims in the U.S. District Court for the District of Delaware, which dismissed them under the filed-first rule because of the filing in Louisiana; a panel of the U.S. Court of Appeals for the Third Circuit in Philadelphia affirmed the ruling.

But in 2016, the full Third Circuit reconsidered the matter and ruled en banc to revive the claims. Last year, the case landed in the Southern District.

Moving to dismiss the claims as time-barred, Occidental argues that New York state courts have yet to wrestle with the issue of cross-jurisdictional tolling and, if that were to happen, it is likely that the New York Court of Appeals, the state's highest court, would not allow it.

Southern District Judges Vincent Briccetti and Naomi Reice Buchwald have said in unrelated cases that they predict the Court of Appeals would accept such tolling, Engelmayer wrote, but that Southern District Judges Shira Scheindlin, who retired in 2016, and Robert Sweet declined to accept tolling.

Siding with Bricetti and Buchwald on the issue, Engelmayer waved off Occidental's argument that cross-jurisdictional tolling would open the litigation floodgates in New York and noted that the state has a “borrowing statute” in which a suit can't be filed if the clock ran out in another state, thus preventing the filing of “placeholder” suits.

“It was reasonable for these plaintiffs to stay their hands and hold off initiating individual actions against each particular manufacturer, whether in New York and/or the other states in which the entities are based,” the judge said.

Engelmayer certified his order for interlocutory appeal, saying that certification for the Court of Appeals may be appropriate in the case, as it is a “pure question” of New York law that has yet to be addressed by the state courts or by the Second Circuit in Manhattan.

The plaintiffs' legal team includes Scott Hendler and Rebecca Webber of Austin, Texas-based Hendler Lyons Flores; Jonathan Massey of Massey & Gail in Washington, D.C.; and Barbara Stratton of Knepper & Stratton in Wilmington, Delaware.

Hendler said in an interview that tolling the statute of limitations in one state for claims brought in another helps to effectuate the policy behind class action suits to avoid duplicate filings for plaintiffs seeking to enforce their rights.

“It's just not a well-reasoned view to say that a class action in one state doesn't toll the statute of limitations in other states,” Hendler said.

Occidental's defense team includes Donald Ferguson McNeil III and Conor McEvily in Vinson & Elkins' Houston-based office; Devon Holstad from the firm's New York office; and Timothy Houseal and Jennifer Kinkus of Young Conaway Stargatt & Taylor in Wilmington, Delaware.
McNeil declined to comment on the ruling and on whether or not Occidental plans to appeal the decision.