Show 12F Sunday Business Mav 7 1995 DuPont: Study of a legal fungicide case could be backfiring in ' V" h r t L 'fy ’ of bias against the Bush Ranch judge and of misconduct against the plaintiffs' lawyers DuPont claims the plaintiffs settled because they had inside information that the jury was about to come back with a verdict for DuPont ing charges Company strategy i Twi Charge of civil fraud weeks before ihe first o'rr claims that a fungicide wiped out ihousunds of acres of crops and plants three defense lawyers t r DuPont ( o huddled for a conference call fin the line were two researchers trom a lab hired to test soil sprayed with DuPont's Benlate Df fungicide The initial results the researchers reported showed traces of precise Is what the growers contended had destroyed their nurseries one ol DuPont's deadliest weedkillers Pul DuPont never turned over to the plaintiffs lho-carls results and subsequent tests supporting the growers' claims as it had agreed to do and as court rules appeared to require Instead DuPont's lawyers presented the court with a summary ol the tests one they said proved there was no contamination fntil recently this courtroom aggressiveness seemed to pa olT Fearing deleat the four nursery owners who brought the case hastily agreed to a bargain-basemesettlement And across the country 1(H) other growers soon followed suit But now DuPont's strategy could be backfiring Those early lest icsults and other raw data surfaced in a separate Benlate trial in Flawau last year The federal judge who tried the first case — known as Bush Ranch alter the lead plaintiff — ordered DuPont to explain why it shouldn't be found to have committed fraud by withholding the evidence — and in contempt of court The judge is holding hearings now in federal district court in ( olumbus Cia Other allegations DuPont's cal in defending Benlate claims has led to other allegations of misconduct In Florida plairlilts are alleging in state court that the company and its lawyers withheld test results in one trial two years ago and misrepresented the results of other tests in another case last year And in Hawaii where DuPont fought unsuccessfully to the state's highest court to keep from turning over the initial Bush Ranch test results a state court judge fined the company $15 million lor intentionally withholding evidence DuPont is appealing DuPont says it has done nothing wrong It contends that the final test results it presented in the Bush Ranch case had disproved the earlier findings and that its own test of Benlate had showed the fungicide was untainted DuPont's counsel the prominent Atlanta firm of Alston A Bird says in court pleadings that the tests presented were well founded and that its own conduct was "consistent with any relevant standard of professional responsibility” The law firm has also launched an aggressive counterattack levcl- - nAAAAAAlliliUATH SI mNDSHIELDJt ijsiaFREE Thai 72 5 rii Jcr a Inied pa yea: insurance re GLASS n Rarely jggressivc defenses trigger Ihe kind of charge DuPont faces — of civil fraud Indeed in bringing such a complaint the nursery plaintiffs art themselves engaging in unusually aggressive courtroom tactics But the complaint poses a risk for DuPont as well as for Alston & Bird A fraud finding could be used against the company in the 210 Benlate cases still pending for the lawyers it could result in disciplinary proceedings “The most powerful weapon that plaintiffs could come out of this with is a judicial finding of conscious wrongdoing by the defendant and counsel” says Stephen Ciillcrs a New York University law profev sor “They could just take that into a courtroom and with very little more turn that into gold" Promising products These were among the company's most promising new products e A judgment blaming them for crop losses would be a sethigh-profil- back The Benlate nightmare began four years ago when a few nurseries that used it to keep plants fungus-fre- e began complaining of stunted growth DuPont pulled Benlate off the market amid concern that some might have gotten tainted with a common herbicide called Atrainc The company began investigating the damage and assessing growers’ claims Its focus was on reassuring them not fighting them evidence pointed to the SI s They and the active ingredient in Benlate were made at the same plant m Belle W'Va And DuPont's quality control there and at other agricultural-chemica- l plants had been less than ideal according to the company's records Twice m 19X4 DuPont suspected that airborne SUs had contaminated Benlate at the plant though subsequent tests turned up negative In 19X7 a DuPont researcher warned about the danger of SI I contamination in a fungicide used in French vineyards In 1990 a DuPont researcher likened continuproblems to ing quality-contr"playing Russian roulette” DuPont decided to start compensating growers The reason: "overwhelming circumstantial evidence that Benlate is likely responsible for the damage in some way" according to a July 1991 internal memo now in court records But within months the company and its lawyers started laying the groundwork for what would become its litigation strategy Its top See DUPONT on 15F o Stk sickly yellowish cast rotting leaves and dead roots Fruit and vegetable growers told of acres of dead or deformed plants Division of the Windowslccks CassMSRP NEW INSTALLATIONS SAVE ON ALL SIZES work guaranteed Expert installations Legs on all jobs Financing available All FREE ESTIMATES ON NEW INSTALLATIONS 520 S STATE CLEARFIELD 773-4836292-16- FRIGIKING 36 SERVICE IS OUR MIDDLE NAME TFDfffe C IDJMasOWBfflSRL 'hottoni 11 Mt- '9ti999l8&f' 13269 BUY B8LOW INVOICE $17850 ePETE‘iyEN MOTOIl 900 W Riverdale Road Ogden 394-550- 0 627-670- 1 Exit Riverdale 627-675- 2 3— — ER The Sale Everyone Has Been Waiting For TmiJ1 lowb For two weeks you can take advantage eof our Free Labor on custom-maddraperies Df 80 and 100 inches long hbriat w FEATURING: HunterOouqtas FABRICUT HUNTER DOUGLAS SALCO CLASSIC 50 United Savings Bank FABRICS 21 AND TDI Treatments and Short Drapes Offers Great Interest Rates and Any Top labor Easy Access to Your Money — Earn up to Comparable Prices for sizes not shown Call for price on those not WIDTH 392-107- 2 Qualirv Class —t RS Approved by all nsuraree companies i Fast tret nxbic serice tout Ogdra to Prom I 3 Glass Act ivv ytti L- -Ji 432333 4 Dr Silver Blue Loaded Air Power Seat Keyfwa Enfty Power Soon the complaints got worse a i L- BUY OP THR CRNTURY BU1CK CENTURY CUSTOM ACT i datable up to '100 ZJ ol SALE! K Pre-Seas- on OUR LOT IS OVERFLOWING WITH Big nurseries in Florida and Hawaii reported plants with cover-u- p "Many ornamental growers may be put out of business" wrote Kent Reasons director of development for agricultural products m a memo that later became evidence in the Bush Ranch trial "Lives are (We) may have being shattered only touched the tip of the problem” The “greatest fear" Reasons noted was that Benlate had been contaminated not by the common herbicide but by DuPont's new line of ullrapolent weedkillers sulfonyl-urca- s or SI s OVER-STOC- ERVICE IS OUR MIDDLE- NAM - DuPont executives went to check What they found one of them jotted down on the flight back from F iorida was more serious than realized back at headquarters in Wilmington Del Circumstantial Siarniard- - E xarmr-- : Groups listed n: WIDTH Comparable Prices tor sizes not wiW s ti ticank shown Call for price on those not listed m in lip j i‘ Federally insured Unlimited withdrawals Write up to three checks per month Transfer money to and from other United accounts 24 hours a day via any touch tone phone No monthly fee with $1000 minimum balance I&t gSHgB'BBHBESQ GEWSSmBSSSS m‘’W WIDTH Comparable Prices tor sizes not shown Call lor price on those not o v!1 iJi'n’i ' h "MO listed come to your Granite window covering exports service Is FREE home to assist In your doCorating-th- e when you buy from us! 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