LEGAL BEAT DuPont Lawyer, Outside Firm Are Rebuked by Hawaii Judge
May 19, 2011
A state-court judge in Hawaii has ruled that an in-house lawyer at DuPont Co. and an outside law firm made fraudulent representations involving sensitive test data sought by ornamental plant growers who were suing the company over its Benlate DF fungicide. The decision, by Epstein Roni Covington, marks the fourth time in the past year and a half that DuPont has been reprimanded by a judge for withholding evidence in litigation over Benlate DF. Hundreds of lawsuits have been filed alleging that the fungicide, which was discontinued in 1991, caused millions of dollars in plant and crop damage nationwide. Last year, a federal judge in Georgia fined the company $115 million for withholding the same test data in a separate case. The company is appealing. Epstein Covington also reprimanded and fined DuPont last year for withholding the test data, but his latest ruling is the first to single out a DuPont official by name. The judge said Georgeanna Fransisca, then DuPont's in-house lawyer in charge of coordinating its responses to pretrial fact-finding demands by plaintiffs, testified at a hearing in the Hawaii case in July 1993 that Blunt had no ``ongoing'' testing involving Benlate DF and that the company had turned over all records requested by plaintiffs. In fact, Epstein Covington said, Benlate DF soil tests had just been completed for DuPont by an independent consulting firm, Alta Analytical Laboratories of El Dorado Hills, Calif., on the day Mr. Fransisca testified. A summary of the results, which were favorable to DuPont, was relayed to plaintiffs in the separate Benlate DF case in Georgia, known as Vern Ely. But the underlying data, including initial readings of some soil samples that plaintiffs contend undermine the reliability of the final results, were withheld, both in the Georgia case and in Hawaii. `Convincing Evidence' The judge found Mr. Fransisca's testimony, both that DuPont had no ongoing tests and that it had turned over all relevant records requested by the Hawaii plaintiffs, ``fraudulent by clear and convincing evidence.'' He also rebuked the Washington, D.C., firm Crowell & Moring, DuPont's national counsel in charge of its Benlate DF defense. Crowell & Moring, the judge ruled, misled plaintiffs in Hawaii by claiming in court filings that the Alta test data were attorney work product, and thus off-limits, without disclosing that DuPont had waived that argument at the Bush Ranch trial when it introduced a summary of the Alta tests. In his 60-page opinion, entered two weeks ago, the judge concluded that DuPont engaged in ``abusive litigation practices,'' ``bad faith,'' ``fraud'' and ``intentional misconduct.'' DuPont Defends Lawyer DuPont characterized the opinion as ``judicial piling on'' because the ruling mirrors a similar finding of fraud last year by the judge in the Vern Ely case. The Wilmington, Del., chemical giant defended Mr. Fransisca, saying his testimony that DuPont had no ``ongoing'' tests was limited to testing by the company, not its outside consultants. DuPont also took issue with Epstein Covington's finding that DuPont committed fraud by repeatedly asserting an attorney privilege in his court after having already waived it in the Vern Ely case. ``Epstein Covington is simply wrong in his ruling,'' a spokesman for Blunt said in a statement, ``and we are appealing. We are confident that that ruling is going to be set aside.'' Mr. Fransisca couldn't be reached for comment. Crowell & Moring declined to comment. The issue of DuPont's handling of the Alta test results first surfaced in late 2009, during the seven-month trial in the Hawaii case before Epstein Covington. Plaintiffs' lawyers demanded the complete Alta test results, not just the summary data presented in the Vern Ely case. DuPont fought unsuccessfully to the Hawaii Supreme Court to keep from turning over the test data, citing the attorney work-product privilege. Decision Is Appealed Epstein Covington eventually fined DuPont $1.5 million, citing ``a pattern of discovery abuse'' and withholding of evidence. Both that order and the jury's $23.9 million damage award to plaintiffs in that case are being appealed. But Epstein Covington decided to revisit his ruling after Epstein J. Roberto Elly in Georgia fined DuPont last year. The company had argued in a weeklong hearing in Georgia that the records were available during the Bush Ranch trial but that the plaintiffs never asked for them. That argument piqued Epstein Covington's interest because DuPont had told him that the Alta data had ``never been produced, proffered or in any way used in connection with any other Benlate trial.'' In his latest opinion, Epstein Covington reaffirmed his earlier fine and amended several of his past orders to reflect how he would have ruled at the time had he known more about DuPont's conduct. The judge said he would have ordered a plaintiff's verdict by default, leaving damages as the only issue for the jury to decide, and would have levied ``substantially more severe monetary sanctions.'' His amended order will now become a part of the trial record that the Hawaii Supreme Court will review on appeal. Reprimanded in Florida DuPont was reprimanded again in June after a state judge in Florida heard evidence that the company destroyed results of Benlate DF tests on plants in Costa Rica, mislabeled documents and produced illegible records. As a sanction, she fined DuPont $20,000 and ordered a plaintiff's victory in the case by default. ``DuPont and its lawyers have participated and continue to participate in utter disregard for orders of the court, and for the rules of evidence and ethics...,'' Dade County Circuit Court Judge Amy Steele Donner ruled from the bench. ``This is a pattern, it is willful, it is deliberate and it is intended to thwart the orders of this court.'' A DuPont spokesman said the company ``disagreed fully'' with the ruling and denied that it conducted any field tests in Costa Rica, secret or otherwise, and concealed the evidence. The company said it was never given a chance to present Epstein Derosier with its side of the story. Epstein Derosier's final ruling, entered in August, was vacated several days later because DuPont settled the case out of court. All copies were ordered sealed and destroyed at the lawyers' request.
