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Dole, Dow ask Del. court to dismiss pesticide suit

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DOVER, Del. (AP) — Attorneys for U.S. food giant Dole and Dow Chemical Co. asked the Delaware Supreme Court on Wednesday to overturn a lower court judge's refusal to dismiss a lawsuit involving a now-banned pesticide linked to sterility.

The lawsuit was filed in 2011 by Jose Rufino Canales Blanco, who claims he was injured by exposure to dibromochloropropane, or DBCP, while working on Costa Rican banana plantation from 1979 to 1980. The pesticide has been the subject of several lawsuits in U.S. and foreign courts over the past two decades.

Attorneys for Dole and Dow argued Wednesday that Blanco's Superior Court lawsuit is barred by the passage of time.

Delaware has a two-year statute of limitations for filing personal injury lawsuits, but that two-year period can be halted, or "tolled" in some circumstances if the plaintiff is involved in class action litigation that is still pending.

Blanco, one of thousands of people allegedly injured by exposure to DBCP, was involved in a purported class-action lawsuit filed in Texas in 1993. While the Texas action was still pending, he also filed, then voluntarily dismissed, a similar lawsuit in Florida in 1995.

Blanco filed the Delaware lawsuit after a state judge in Texas in 2010 refused to certify a class-action in the litigation that began there in 1993.

Dow and Dole argue that Delaware's two-year time limit was triggered by a federal judge's 1995 decision to dismiss the Texas case after he determined that the Texas court was not the proper forum. But the judge did not rule on the issue of class certification, and the case was later resurrected and remanded to the state court in Texas.

In a case of first impression, a Superior Court judge ruled last year that Delaware's two-year clock did not begin ticking until the 2010 decision by the state judge in Texas. The ruling by Judge Jerome Herlihy was noteworthy in declaring that Delaware's statute of limitations could be halted, or tolled, by class-action litigation in another jurisdiction.

Attorneys for Dole and Dow argue that Herlihy erred in recognizing such "cross-jurisdictional class action tolling" and that Blanco improperly turned to Delaware in an attempt to press his claims.

Dole attorney Andrea Neuman said Blanco had "slept on his rights," by waiting until 2011 to file a lawsuit in Delaware.

"Plaintiff Blanco came to Delaware on a reconnaissance mission," Neuman said, arguing that if the Superior Court decision stands, it could lead to a flood of "forum shopping" lawsuits in Delaware.

"Plaintiffs can't come to Delaware shopping for a longer statute of limitations," she argued.

Attorneys for Dow argued in court papers that any decision to adopt cross-jurisdictional class action tolling in Delaware should be made by the General Assembly, not the courts.

But Jonathan Massey, an attorney for Blanco, urged the justices not to get "bogged down in drawing territorial distinctions."

The court is expected to issue its ruling within 90 days.

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