July 12, 2009
In what has become one of the most controversial films to hit the big screen, even without a distribution deal, is Fredrik Gertten’s BANANAS!* Originally slated as a competitor in the Documentary Category of the 2009 Los Angeles Film Festival , due to pressure from the Dole Food Company, the film was pulled from competition but still included in the Fest as a special screening. A last minute decision by LAFF also pulled the film from eligibility for the all important Audience Award. Directed by Swedish filmmaker Fredrik Gertten, BANANAS!* is an expose of one aspect of th multi-million dollar international agribusiness of bananas and the alleged poisoning of the banana farm workers due to use of the pesticide DBCP. Filmed in pure documentary style, the events are chronicled through interviews, actual trial film footage and narration.
By way of background, there have been multiple lawsuits going for a number of years against Dole Food Co. and various pesticide companies who manufacture, sell, distribute and/or use or have used dibromochloropropane (DBCP), a toxic chemical that causes, among others, kidney and liver damage as well as sterility, as a result of prolonged exposure. (Since the 70's, DBCP has been banned in numerous countries, including the U.S.) Since 2002, Nicaraguan courts alone have issued judgments in 32 lawsuits in the total sum of $2.05 billion dollars against Dole and DBCP manufacturers. Under Nicaraguan law, $100,000 is guaranteed to each plaintiff claiming and proving injury in the form of sterility, where they worked on a farm using DBCP. In Miami, the Court has been asked to enforce a $98.5 million Nicaraguan judgment against Dole and Dow. Dole, a California based company, had earnings of $7.62 billion last year. Of importance is that Dole lost its banana farms in Nicaragua during the 1979 Sandanista revolution.
BANANAS!* chronicles the story of the Tellez v. Dole Food Co. litigation as seen from the plaintiffs’ perspective through the eyes of plaintiffs’ attorney Juan "Accidentes" Dominguez. Tellez is the first parcel of plaintiffs in a class action matter filed on behalf of Nicaraguan plantation workers alleging bodily injuries suffered as a result of exposure to DBCP. The Tellez case, classified a long cause matter, was heard in the Los Angeles Superior Court before the Honorable Victoria Chaney, who is now being elevated to the Appellate Court by Governor Schwarzenegger. Following the completion of the Tellez litigation, additional groupings of plaintiffs commenced subsequent trials. However, BANANAS!* takes a look just at the Tellez story, up through the rendering of a verdict by the jury, a fact which has now prompted lawsuits by Dole against the filmmakers as it is Dole’s contention that BANANAS!* does not give an accurate depiction of events in light of the subsequent trials and Court rulings, thus defaming Dole Food Co.
It was the result of verdicts in Nicaragua that spurred the litigation frenzy in the United States, both in the Los Angeles State Court and the Federal Court of the Southern District encompassing complaints filed in Florida and Texas, as these plaintiffs now look to the U.S. judicial system for enforcement of their verdicts and recovery of damages against the U.S. based defendant, Dole Food Co. The result of the Tellez lawsuit rendered a substantial 2007 jury verdict in favor of numerous Nicaraguan laborers, however, it also rendered a defense verdict against many of those workers. Despite a reduction of the verdict by Judge Chaney, the matter is currently up on appeal.
But turning away from the legal wranglings now ongoing, including a lawsuit for defamation, libel and slander against Fredrik Gertten, his production partner and his film company, WG Films, at the core we have a documentary film that deserves more than a look.
On viewing BANANAS!*, we are presented with a film of archival footage, families grieving over the deaths of loved ones (deaths which heirs believe to be attributable to the decedents’ exposure to DBCP), actual courtroom trial footage, meetings between the Nicaraguan plaintiffs and their Los Angeles attorney Juan "Accidentes" Dominguez and one of the most ethical and passionate trial lawyers in California, plaintiffs’ trial counsel, Duane Miller, as well as the estimable defense attorney, Rick McKnight.
Attorney Juan Dominguez is nothing, if not a "personality." Proudly displaying his face on billboards and on the backs of buses throughout Los Angeles, he is well known as an "accident" attorney laying prey to the Hispanic community. To someone outside the Los Angeles area, Mr. Dominguez is a lawyer, a showman, a man who captures the imagination much as Johnnie Cochran did, a man who many identify as being a typical personal injury attorney. When the world thinks of U.S. attorneys, Johnnie Cochran is still the fact that comes to people’s minds. No longer with us, this now makes Dominguez the perfect focal piece for the telling of a story, particularly when he is someone with a story as interesting as that depicted in BANANAS!*. Living the high life with his red Ferrari, fancy office and palatial style of his home, it is easy to see that Dominguez is the rainmaker and not the litigator in this story. A fact which may now come back to haunt everyone.
Since the mid 1950's, DBCP was used around the world as an agricultural pesticide targeted at small worms, Nematodes, that lived in the soil feeding on plant roots. DBCP was administered either by air, through irrigation guns or pumped into the ground. By the 1970's it was determined that DBCP was also harmful other life forms. It had a definite effect on the mortality of fish, insects and mollusks. It affected the physiology of phytoplankton. And for humans, the toxicity ranged from carcinogenicity, reproductive and developmental toxicity, to neurotoxicity, we well as being directly attributable to kidney and liver damage. (For additional information checkout www.pesticideinfo.org.) The primary manufacturer of DBCP during this time was Dow Chemical Company. However when California banned its use in 1977, Dow recalled all of its DBCP stock from its customers in the US and stopped manufacturing it. One of those customers was Dole. In 1993, DBCP was declared illegal in Nicaragua.
Director Gertten was a journalist in Nicaragua in the 80's and 90's. During this time he heard a great deal about plantation chemical usage and workers falling ill allegedly due to same. So when litigation began popping up in the U.S. it seemed only natural from a journalistic and filmmaking standpoint to take a closer look and what better way than through film. As it so happens, attorney Dominguez became involved with potential plaintiffs relative to DBCP exposure and as happens with a good deal of attorneys, saw the pot of gold at the end of the trial rainbow and the potential for a class action lawsuit in the California State Court.
Proceeding through the litigation process, we are witness to attorney Dominguez and his Nicaraguan liaison team as they put the wheels in motion for this massive class action undertaking - spreading the word via town hall meetings, rallies and on the radio, interviewing potential plaintiffs, followed by the taking of their depositions and ultimately, trial testimony. There are interviews with family members who have their own interpretations (whether scientifically documented or not) of why a loved one has died or why a healthy baby is born after a pregnant woman stopped working on the plantation after prior miscarriages when she remained at work instead of stopping. These are people, like you and me, with their own opinions about events that have touched their lives. But as we move into the trial phase of the film, a more black and white picture is painted, which I am certain, if time permitted within the documentary itself, may provide even a few shades of grey.
On the witness stand, many of the plaintiffs are impeached. Despite initial claims of sterility and working conditions at the plantation allegedly exposing them to DBCP, they now negate their prior testimony. Not good from the plaintiffs’ standpoint. But there is one thing that no one can negate - - trial footage of Dole’s president attesting to the authenticity of letters written in 1977 to Dow Chemical Company wherein Dole threatened to sue Dow for breach of contract if Dow did not continue to supply Dole with DBCP, as well as letters documenting Dole’s offer to indemnify Dow and hold Dow harmless and protect Dow from any claims for personal injury that may arise by injured workers or other "third parties" exposed to DBCP. Interestingly, and as we see in the trial footage on exhibits introduced into evidence, Dow agreed to see all of its remaining DBCP (500,000 gallons) to Dole which it continued to use for an unknown time in its foreign divisions.
A great deal is also learned through watching the closing arguments of both Miller and McKnight, an aspect of the trial which I guarantee had an impact on the jury. Which way they were swayed is for you to decide for yourselves.
What we also see, particularly if you pay close attention to the head count, is the jury verdict for each of the initial plaintiffs - and as it is being read, attorney Dominguez’ crestfallen look with each point read. This was not a win-win scenario for the Nicaraguan workers and attorney Dominguez. And clearly, the verdict wasn’t only based on impeachment of witnesses as decisions came in for plaintiffs who had been impeached as well as for those that hadn’t. Verdicts were found even with no damages. A very complex jury trial to say the least.
In all fairness, it must be said many months later, post-trial motions were heard and the initial verdicts reduced, however, same is not shown on camera, although the ultimate reduced verdict amount is made known. While I do not have a concrete answer as yet, I believe the only reason post-trial motion footage is not included in the documentary is because Gertten and his team were not present with cameras rolling.
But what we do see through the camera is the good, the bad and the ugly of litigation; the ups and downs and what trial attorneys like Duane Miller (plaintiffs’ attorney) and Rick McKnight (Dole attorney and a very seasoned and superb litigator) face when the tables turn and your witnesses go south. And we see a company that by its own admission through its president chose to ignore well established scientific evidence (undoubtedly listening to bean counters as to what is more economical - losing crops or paying settlements and verdicts) and continue to use a toxin known to cause injury to humans. We see both sides of the litigation table and are given sufficient material to formulate our own opinions on the situation.
An extremely well crafted film, in addition to the courtroom drama, there is raw human emotion and even humor. This is life. This is litigation. This is a front row seat to a history making event, that of third world claimants being heard as plaintiffs for the first time in a U.S. Court. That in and of itself makes this film worthwhile. Gertten doesn’t get bogged down in facts and figures but for that told through trial, testimony and evidence. (Anyone with any doubts can go to the internet for some factual research.) He lets the camera tell the story, letting it flow, and then using his editing tools to establish pacing and tension as he builds to the ultimate verdicts. There is a polish to the overall production with its many textural components of archival footage, courtroom footage and present day observations and background material that makes for a compelling human drama. And as with all good documentaries, it raises questions - and not just about the legal turmoil - but about corporate responsibility, ethics and human rights.
From a filmmaking standpoint, the documentary is informative, educational, interesting and gives one pause to think about not only the events in this film, but the agricultural industry itself. If these chemicals can cause injury to the workers, how much residue remains in the food itself when it hits our grocery stores and dinner tables? On August 16, 2007, it was reported in the Global Fresh Produce and Banana News (www.freshplaza.com) that according to the Centro para la Investigacion de Recursos Acuatics de Nicaragua (CIRA) at the Universidad Nacional Autonoma de Nicaragua (UNAN), traces of DBCP and 11 other pesticides used during the 1970's and 1980's in the banana and cotton plantations of Chinandega were still found to be in underground water sources. People consume this contaminated water even today. The research team was led by Salvador Montenegro Guillen and Mario Jimenez Garcia. It was also noted at that time that according to the Association of Farmers affected by Nemagon, more than 8000 former workers at the banana and cotton plantations had some ill effect to their health while 2000 (yes, two thousand) died due to pesticides. While this specific information is not included in the film, perhaps had it been, Dole might not be so vigorously protesting what many are perceiving as the alleged fraud of one attorney, Juan Dominguez, and alleged defamation by a filmmaker. Data supporting adverse effects of DBCP is replete and readily available on the internet for the asking.
Many months after the completion of BANANAS!*, new developments arose when two other lawsuits parceled from the class action were thrown out of Court based on evidence that the plaintiffs’ attorneys, including L.A. attorney Juan Dominguez, allegedly fabricated the entire situation by "hiring" plaintiffs, falsifying evidence and promising payoffs. Dominguez may now face contempt charges and potential disciplinary actions by the California State Bar. Judge Chaney intimated that her perceptions on the subsequent cases may now impact the Tellez case.
As a result all the legal shenanigans, a reputable filmmaker has now found himself embroiled in the middle of a filmmakers’ battle for free speech and accused of libel and slander by the Dole Food Company, accusations which began before Dole ever screened the film and which have now manifested into a lawsuit since its viewing. Filmmakers tell a story based on what is put before them, what they see, what is made known. Fredrik Gertten did just that and has told a story from a particular viewpoint. It just happens to be an unflattering one to Dole. Should he, and other documentarians, be penalized for that? I think not.
When I recommended BANANAS!* as one of my "Must See Festival Films" at LA Film Festival, I had questions. I still do. Is it not just possible that at least some, if not all, of the events in the film are true? Even Judge Chaney has opined that to some extent in her ruling on the Mejia case. Should all plaintiffs be penalized even if there is found to be fraud as to some? If Dole was using DBCP and laborers were harmed, shouldn’t those laborers be entitled to recompense? And the even bigger question that arises, if DBCP was and/or is being used, what harm is it causing to the world population who eat these fruits? And if Dole has nothing to hide and is so certain the film contains falsehoods, do they not have enough faith in the public to ascertain for themselves what is fact and what is fiction? Better yet, counter it with their own film setting forth their position. These are questions that should be raised and that moviegoers should be allowed to ask for themselves.
Whether or not BANANAS!* will see the light of day in other theatres or festivals is currently unknown. I hope it does. But as of right now, we have no BANANAS!* today.
Written and Directed by Fredrik Gertten.