ENVIRONMENT: DU PONT’S BILLION-DOLLAR FUNGICIDE

PETER KATEL

In the late ‘8os, something terrible happened to nurseries and fruit plantations in the Southeast. Millions of acres of shrubs, fruit trees and vegetable plants shriveled, turned brown and died. Angry farmers in Florida, Georgia and Texas pinned the blame on a Du Pont fungicide called Benlate, a chemical brew that had seemed particularly well suited to the demands of the region’s hot climate. Remarkably, Du Pont acknowledged that its product seemed to be at fault and began paying claims–about $510 million. But last year, the company concluded that its product wasn’t to blame, halted all damage payments and set the stage for a series of product-liability suits that seek billions of dollars in damages.

The first of the 500 lawsuits is now being tried in a federal court in Georgia. Four ornamental-plant growers are demanding $37.5 million in compensation and $400 million in punitive damages. Much of the evidence they wield against the company comes directly out of Du Pont’s own files. Using selected items from 4 million memos, electronic-mail messages, letters and test reports Du Pont was forced to turn over, plaintiffs’ lawyers are trying to paint a picture of a corporation that knew its product had been contaminated–but tried hiding the evidence. Citing the company’s own laboratory data, for example, a University of Florida chemist testified that one company scientist had found toxic contamination in Benlate–and then got rid of many of the computer tapes on which she based the alleged conclusion. One executive writes that the possibility of contaminated Benlate was Du Pont’s “greatest fear.”

Lawyer’s memo:

“We’ve got people from high levels of Du Pont reading things they’ve written telling the jury and the public that what they wrote really didn’t mean what it said,” growers’ lawyer C. Neal Pope said in court. He’s also using a memo from a Du Pont lawyer advising the company to keep looking for a cause of Benlate damage–but not too energetically. “It is a much better litigation position to state that we have looked, are looking, and will continue to look but have had no success, leaving the issue unresolved…” wrote the lawyer, Thomas M. Burke of Orlando, Fla. A company official said Du Pont rejected that approach.

Du Pont’s lead lawyer, Dow Kirkpatrick II, accuses his opponents of using “smoke and mirrors” against a deep-pocket corporation by bringing in documents selectively and out of context. Corporate officials say that even as they were paying damage settlements they were desperately trying to figure out what went wrong with Benlate. After extensive field and laboratory tests were run, they could find no flaws. “Once we had conclusive proof that Benlate did not do it,” William Kirk, agricultural-products vice president, testified last week, “then we had to take a firm stand and live with our principles and say, ‘We will not pay any more’.”

Even as the trial progresses, other Du Pont adversaries are poring over company documents and trying to get more. For instance, Florida’s agriculture commissioner is trying to force the release of some Du Pont records that were used in the early settlements. As potentially damaging memos and messages are found, the lawyers in the cases expect to pool them; the Georgia suit, in fact, relies on papers turned over by lawyers in companion suits. With the trial half over, Du Pont can only hope its lawyers are as effective in combating the barrage of documents as the company’s products are in killing weeds and fungi.