Pesticides: Federal Jury in Arkansas Awards $10.65 Million, Including $3 Million in Punitive Damages to 23 Tomato Farmers Who Suffered Crop Losses Caused By DuPont Fungicide Benlate 50 DF

Where 23 tomato growers from South Arkansas suffered devastating crop losses caused by DuPont's fungicide Benlate 50 DF. The farmers sued DuPont and established a sordid course of corporate malfeasance in development and marketing of the product.
Federal trial court and jury awarded $10.65 million, including $3 million in punitive damages against DuPont for flagrant corporate misconduct.
This judgment against DuPont on behalf of the South Arkansas farmers was rendered September 3, 1993. Harrod v. E.I. DuPont de Nemours and Company, United States District Court, Western Division, Arkansas No. 90-1127. Counsel for the tomato farmers were James Bruce McMath and Evans Benton, both of Little Rock, Arkansas.
In the Harrod complaint, plaintiffs charged that the Benlate, allegedly contaminated with foreign and deleterious ingredients including Atrazine, a herbicide harmful to crops, was inherently dangerous for its intended purpose. The complaint further alleged that the Benlate which had laid waste and brought ruin to the crops of some 23 tomato growers was improperly labeled, contaminated with herbicides, that DuPont had knowledge that the product was deleterious to tomato crops and refused to recall the product until after the damage was done and the Environmental Protection Agency took corrective action against DuPont for its distribution of this product.
During the trial of the Harrod case in Arkansas, DuPont had settled a Benlate damage claim with farmers in Georgia. The Georgia farmers were paid $4.25 million, only a fraction of the $430 million in actual and punitive damages that the farmers had sued for.
After the settlement with the Georgia farmers, the DuPont chairman was quoted as stating with exultation that they had paid the Georgia farmers, "far less than one percent of the plaintiffs' claims, thereby avoiding costly and time-consuming post-trial motions and appeals by the farmers."
The DuPont chairman is quoted as also stating in the post-settlement of the Georgia farmers' case that, "the company (DuPont) looks forward to defending its products in other trials." The next trial on DuPont's docket was the Harrod case in Arkansas which resulted in the award of $10.65 million, including $3 million in punitive damages against DuPont for flagrant corporate misconduct.
We see the result of the farmers' suit against this corporate leviathan, but how did it happen? What brought about this judgment, righting a wrong and holding DuPont responsible for its corporate misconduct?

DuPont has the means to hire batteries of lawyers, scores of experts, and has resources and facilities to conduct numberless tests under the direction and supervision of its own experts who use these test results to support their testimony at the trial. As one DuPont expert stated, "we can pick apart a claim of any farmer."
Under our judicial system in America, any citizen with a meritorious claim can take it to court.
The contingency fee system in place within the plaintiff's bar makes legal counsel available to claimants who do not have the resources to hire lawyers. Under the contingency fee system, if the lawyer does not win the case, the lawyer does not get paid.
The contingency fee system permits the citizen with a meritorious claim to exercise his right to go to court and to have his case tried before a jury. A jury composed of disinterested citizens who know nothing about the facts in the case; who are seeking nothing for themselves; who are not running for office or soliciting campaign contributions, looking for a job or seeking personal enrichment. The jury decides the case under the instructions of the court based upon the facts presented at the trial, brings in their verdict and returns to their respective places in society, hopefully feeling that as an instrument of our judicial system, they have done their best to act justly, correct a wrong and fulfill their civic responsibility.
So the tomato farmers hired a lawyer, Evans Benton of Little Rock, who associated Bruce McMath of The McMath Law Firm. The lawyers agreed to represent the farmers on a contingency. If no recovery was made, the lawyers would earn no fee, thus making it possible for these farmers, unable to pay a lawyer up front, to have their cause heard in a court of law.
The tomato farmers' law suit against DuPont was predictably a contest between two lonesome lawyers and a corporate giant, reminiscent of the biblical battle between David and Goliath. Comparatively, the lawyers for the Bradley County farmers were armed with a sling and a stone, "but their strength was the strength of ten because their cause was just."

The Harrod case began in April 1990, when tomato farmers in Bradley County, Arkansas noticed something unusual about their tomato plants in the greenhouses. The plants were not growing properly and manifested a yellow cast. The farmers had, for many years, used DuPont's Benlate fungicide, principally as a prophylactic measure for control of fungi in their greenhouses. The warm, damp interior of a greenhouse is a favorable breeding ground for these pests. In April 1990 one farmer received a flyer in the mail from DuPont stating that some of the Benlate 50 DF production had been contaminated with the herbicide Atrazine.
Atrazine is a herbicide, the use of which on tomato plants would be akin to consumption of cyanide by a human. The farmer took the flyer to the farm supplier from whom he had purchased his Benlate. The farm supplier contacted his distributor, who in turn contacted DuPont. A representative from DuPont appeared a few days later, confirming that all of the Benlate which had been sold in the 1990 crop season by the farm supplier had indeed been contaminated with Atrazine. The farm supplier immediately contacted his customers to whom Benlate had been sold and recovered the contaminated products.
DuPont dispatched its representative and plant analysis experts from A&L Southern Agricultural Laboratories in Pompano Beach, Florida. The A&L representatives visited the farms in April 1990 which had used the contaminated chemical, confirming that damage had in fact occurred. This was further confirmed in letters on each farm by the A&L representative and was addressed to Mr. Clyde Roberts of the DuPont company. Each letter cited the symptoms observed on the tomato plants on each of the affected farms and expressed the opinion that the damage in question was caused by Atrazine contaminated Benlate.
DuPont's representatives told the farmers they would be compensated for their damage. Time passed. With no payments forthcoming the farmers had to make out the best they could with their damaged crops.
Having heard nothing further from DuPont, the farmers concluded that they needed legal assistance.
The owner of the farm supply which had sold the Benlate to the farmers, Charles Roy Harrod, himself a farmer who had used the contaminated Benlate, retained Evans Benton, who had been his lawyer for many years. Benton immediately retained an expert on horticulture and tomato production, Dr. Burl Thomas, from Bradenton, Florida. (At the trial, Dr. Thomas would be the sole expert witness for the farmers, pitted against a galaxy of experts called by DuPont.)
DuPont was allowed to dispatch additional experts to inspect the farmers' crops. The farmers wanted to give DuPont every opportunity to observe the crop injury first hand.
Before permitting DuPont to send additional inspectors to the affected farms, Evans Benton, an experienced trial lawyer, made a far-reaching decision which would ultimately influence the conduct and the outcome of the trial.
As a condition for sending additional inspectors, DuPont was required to agree:
1. to share with the farmers their findings, video tapes, and results of analyses of plants and soil;
2. to provide to Benton copies of the letter reports to DuPont made by A&L Laboratories in April 1990, at the time A & L had inspected the farmers' damaged crops.
These reports were to prove vitally important given the damaging admissions these letters contained. DuPont subsequently strove without success to bar the use of these letters at the trial.
All the farmers involved in the lawsuit against DuPont harvested some tomatoes, but the damage from the use of the contaminated Benlate had cut each farmer's harvest to a marked degree. For example, one farmer whose historical production average was 1700 twenty pound boxes of tomatoes per acre, produced only 700 boxes of tomatoes in 1990.
A settlement of a lawsuit is highly desirable. This is particularly true where the plaintiffs are in dire financial circumstances, as is the case most of the time.
Preparation and trial of lawsuits can be terribly expensive. There are two sides of every lawsuit that goes to court. Anything can happen. If the venue is in federal court, a unanimous jury verdict is required. In most state courts at least 9 out of 12 jurors must agree on a verdict of liability and damages before judgment can be entered.
The farmers' continued efforts to settle their claim came to naught. Suit was filed October 30, 1990.

Evans Benton learned that suit had been filed in Wisconsin against DuPont by Greiling Farms, a large ornamental plant nursery, which had sustained a devastating blow, losing 20 million pansies from a single spraying of Benlate contaminated with Atrazine in early August, 1989. Benton contacted the attorneys for Greiling and was able to obtain valuable information in the form of documents provided by DuPont in that litigation.
DuPont had altered the formulation of Benlate. There was a change in method and mixture of ingredients rendering the product harmful to plants.

An internal DuPont memo revealed that in May 1989, DuPont knew Benlate contaminated with Atrazine was causing damage to plants. Despite knowledge of damage being inflicted upon growers, the decision was made by DuPont not to recall the product. The memo contained such language as, "downside of recalling" and "concerned about long-term reputation to product," stating further, "we think prudent risk to do nothing and knowing though that there is some risk that not recalling could result in more claims."
Approximately 80% of the Benlate produced in 1988 and 1989 was contaminated with Atrazine and Prowl, both contaminants and harmful to plants.
In 1988 DuPont began the manufacture and distribution of Benlate 50 DF as a fungicide. On September 1, 1989, the EPA placed a stop order on the sale, use and distribution of Benlate. In its order to DuPont, EPA stated, "EPA has reason to believe that you have been selling this pesticide in an adulterated condition which constitutes an unlawful act under FIFRA (Federal Insecticide Fungicide Rodent Act) … Analytical results showed numerous batches of Benlate and Tersan to be significantly contaminated with Atrazine."
The Atrazine contamination referred to by EPA occurred in 1988 and 1989 when the Benlate was being manufactured by a DuPont contract manufacturer, Terra International, Inc. Prior to producing Benlate, Terra had produced a herbicide called Prozine which is composed of Atrazine and Prowl. Terra attempted to clean out the traces of Atrazine and Prowl from its plant equipment by flushing it with starch and sugar. The contaminated starch and sugar was then used during Benlate production as inert matter, or a filler. An attempt was made by DuPont to measure the contaminated levels of Benlate so that there would be no greater than 20 parts per million. DuPont was not only aware of this process at Terra, but "ordered it."
The contamination of the Terra plant with Atrazine and Prowl, the cleaning out of the contaminants with starch and sugar, and the use of this contaminated "sludge" as inert material or filler in the packaged Benlate distributed to the farmers for use on their crops and the failure to advise the farmers of the presence of this contaminated and adulterated material, formed the basis of the jury's verdict in this case.
Hear the testimony of William Lea, formerly production manager at Terra's plant in Blytheville, Arkansas, when the Benlate was being formulated:
Q: What had been run previously before the production of Benlate began?
A: We had run a Terra product fungicide by the name of Bravo.
Q: And prior to that, what had been run in the facility?
A: It was a product by the name of Prozine for American Cyanamid.
Q: And Prozine is a combination of Prowl and Atrazine?
A: Yes.
The testimony of Mr. Lea continued:
Q: Now after you ceased producing Bravo, did you start producing Benlate immediately?
A: Basically. We flushed the system. That's when we started flushing the system with the starch and sugar and we did that for about two weeks, maybe two and a half weeks, before we ever put any Benomyl Tech into the system and tried to produce the Benlate finished product.
Q: What do you mean by Benomyl Tech?
A: There were some of the first material that was put through that was relatively high. I don't recall the exact amounts, but several thousand, maybe as high 20,000. I just don't remember.
Q: Is that 20,000 parts per million?
A: Right.
Q: Would that apply to Atrazine?
A: Yes.
Q: All right. Now, what was ultimately done with this starch and sugar that you just described?
A: It was put back into the finished product at a rate such that we could maintain 20 parts per million or less of the contaminated materials that we felt - had remained in the - that had been measured to be in the material, and we were trying to maintain the level of contamination in the finished product at 20 parts per million or less.
DuPont's authority over the process was further emphasized by Mr. Lea:
Q: Was there a DuPont contract administrator with whom you worked?
A: Yes.
Q: What was his name?
A: Ken Krupa.
Q: What was his function?
A: To oversee the run.
Q: Well, what kind of authority did he have?
A: I would say total authority. If he didn't like what was going on, he could shut it down.
DuPont had not tested Benlate containing Atrazine to determine its effect upon plants. However, DuPont set a trace contaminant action limit or "TCAL," for a permissible amount of Atrazine in Benlate. Notwithstanding overwhelming proof, DuPont continued to deny that it had allowed Atrazine to be in Benlate.
Dr. Hamlen and other DuPont representatives went to a meeting with EPA in Philadelphia on September 8, 1989 in an attempt to persuade EPA to allow DuPont to sell Benlate 50 DF containing 100 parts per million of Atrazine as attested to in Dr. Hamlen's deposition. This effort was unsuccessful as DuPont eventually recalled all Benlate 50 DF contaminated with 2 parts per million of Atrazine, the limit of analytical detection at that time.
The only action DuPont took from May to August 1989 was to attempt to recover the unsold quantities of Benlate containing the extremely high levels of Atrazine which was still in DuPont's warehouses. DuPont made no effort to remove or recall the contaminated Benlate from the marketplace.
In the first week of August 1990, DuPont learned of the Greiling Farms catastrophe. Greiling had called in the Wisconsin Department of Agriculture, and its personnel determined that Benlate was contaminated with Atrazine. The Wisconsin Department of Agriculture then notified the EPA which dispatched investigators who traced the contamination to Platte Chemical Company at Freemont, Nebraska, a producer of Benlate for DuPont. The Atrazine contaminated Benlate 50 DF was produced under contract for DuPont at Terra, a chemical company plant in Blytheville, Arkansas. The Benlate was then shipped to the Platte factory for repackaging. This was ordered by DuPont. During this process the Terra produced Benlate was mixed with Platte produced Benlate, thereby contaminating the Platte facility with Atrazine.
On August 7, 1989, an EPA investigator visited the Platte plant. A DuPont employee on site at the Platte facility notified DuPont, warning of the EPA investigation. This prompted a telephone call from DuPont to EPA on August 9, 1989 to advise the EPA of the contamination problem. This was the first contact by DuPont with the EPA on this subject.
The EPA directed DuPont to recall all Benlate 50 DF with levels of Atrazine at 2 ppm or greater, which was the lowest level at which it could be detected. DuPont's recall was limited to its distributors and not communicated to farmers in the field who were using the product. It was not until April 1990 that the farmers in Arkansas learned of the contamination problems. They had all sprayed their tomato plants at least once, some having sprayed several times with DuPont Benlate.
On March 22, 1991, DuPont announced a recall of all Benlate 50 DF, pulling it entirely off the market. By this time farmers over the country, but mostly centered in Florida, began to report widespread plant and crop damage from the use of DuPont Benlate.
In May 1991, Evans Benton and four other lawyers representing growers in claims against DuPont met in Philadelphia with EPA personnel concerning the Benlate controversy. The EPA still did not know how the Atrazine had come to be in the Benlate sold by DuPont. At this meeting, EPA employees referred to a "study" on Atrazine that DuPont had presented to them in September 1989 advising the lawyers that this DuPont information indicated that Atrazine contaminated Benlate would not have injured their client's crops.
DuPont continued to claim it had no idea how the Atrazine had been introduced into the Benlate 50 DF. From internal DuPont documents, it was learned that two employees of the Terra DuPont plant in Blytheville, Arkansas, the production manager and lab supervisor, had been fired. The whereabouts of these former employees were not known.
After the May meeting with EPA, Benton hired a private investigator who located the lab supervisor, Mark Meyer in Ohio. Benton contacted the former lab supervisor and was informed by him that, "DuPont had not only known of the introduction of Atrazine into Benlate, but had ordered it."
At the time the Arkansas tomato farmers, Harrod, et al., filed suit, there were a number of cases by farmers pending against DuPont. Lawyers for the respective farmer claimants were endeavoring to obtain DuPont's interoffice memos and documents revealing that DuPont was aware of the harmful effect Benlate was having on plants. The lawyers for each farmer claimant were endeavoring to obtain these incriminating documents by request for production or mandatory court orders.

DuPont set up what is referred to as the Benlate Depository near Wilmington, Delaware, DuPont's home base. Millions of documents were housed in this depository, mostly pertaining to Benlate and other chemicals. The depository originally contained about 80,000 documents, but the number of documents increased to approximately 4 million. Many of the documents were duplicates, confounding and confusing the lawyers who were seeking these documents in the preparation for trials in their respective cases.
DuPont stamped most of the documents in the depository as "Confidential/Proprietary," claiming that the documents could not be given to any lawyer outside the specific case for which the documents were requested on the basis of trade secrets and confidential information. DuPont was endeavoring to wall off the separate farmers' lawyers, isolate them from each other so that they could not share the information which they were gathering. DuPont sought the enforcement of this policy in the Harrod case by seeking a protective order from the court prohibiting Benton and McMath from discussing or having any of the documents that had been obtained from the depository by lawyers representing other farmers. A magistrate judge initially entered DuPont's requested order. McMath and Benton appealed to the district judge, convincing him to modify the protective order to allow them to communicate with other lawyers representing farmers whose crops had been damaged by DuPont's product. This was an incalculable benefit. Within a week of getting this modification, McMath and Benton were on a plane to Orlando, Florida. They met with attorney Chris Skambis who was representing several damaged growers in Florida. Chris had some 500,000 DuPont documents which he had obtained from the depository. He assisted McMath and Benton greatly in winnowing the information.
Other plaintiffs' lawyers with whom McMath and Benton collaborated were Ernest Sellers and Jimmy Prevatt of Live Oak, Florida; Dave Connor of Tampa, Florida; and Stan Roehrig, Andy Wilson, Chris Laguire, and Allen Williams in Hawaii.
DuPont's tactic in responding to discovery was to simply refer the lawyers to the several million documents in the depository in Wilmington, along with cursory index consisting of a few pages. It was almost an impossible task to narrow the search and find the relevant documents. Only through the joint efforts of the above-mentioned lawyers did a truly impossible task become manageable. One state court in Hawaii referred to DuPont's tactics as, "dump truck discovery," by which a lawyer representing a grower was subjected to a paper shower in discovery. Thousands of pages of documents would be reviewed, supposedly responsive to a particular subject matter, only to find that little or nothing contained in this material, ordered at considerable costs, was relevant to the topic or responsive to the lawyer's request or the court's order for production.
McMath and Benton set up a ready room in Benton's office in Little Rock where they accumulated over 150,000 DuPont documents. Additionally, they obtained over 30,000 pages of depositions in other cases filed against DuPont. Computers were utilized for each document requiring individual review.

The proof was overwhelming that the Benlate purchased from DuPont and used on the farmers' crops had caused damage. Nevertheless, DuPont contended that the farmers' claims were "frivolous" and that sanctions should be applied by the court.
Under Rule 11 of the Federal Rules of Civil Procedure, sanctions may be applied by the court covering costs of the litigation and the award of attorney's fees in the event the court determines that the lawsuit is frivolous. The intended purpose of Rule 11 is to discourage the filing of lawsuits having no merit; to save defendants from defending lawsuits that are groundless and have no support by the law or the facts; to spare the courts from having to hear groundless claims when the docket is already loaded with meritorious cases crying to be heard.
Rule 11's laudable intent is frequently used by corporate defendants to intimidate and discourage claimants with moderate means from going to court.
Not only was the proof overwhelming that the Benlate obtained from DuPont was the culprit in causing the farmers' damage, but DuPont's representatives inspecting the scene of damage had told the farmers that they would be compensated.
DuPont's threat to have the farmers saddled with DuPont's costs and attorney's fees did not deter the farmers from their course.

DuPont filed a motion with the court to sever the plaintiffs' claims, that is to have each farmer's claim tried separately, requiring a separate trial for each farmer.
Obviously, the plaintiffs could not have afforded a multitude of trials. Additionally, the core of the plaintiffs' case proving that DuPont's Benlate had caused the damage to the farmers' crops was to show that each of the 23 farmers had used the fungicide obtained from DuPont, had applied it in a similar manner, and suffered similar damages to their tomato crops.
Granting DuPont's petition for severance would have required the court and the jury to try each of the 23 cases separately; to go through the laborious process of resolving each farmer's case in a separate trial on the issue of both liability and damages.
The trial judge overruled DuPont's motion for severance. DuPont attempted to appeal the ruling to the United States Circuit Court of Appeals by a petition for a writ of mandamus. Neither McMath nor Benton had ever been confronted with a mandamus petition before, but they learned fast and successfully defeated DuPont's tactical maneuver to try the farmers, one case at a time.

Waiting for trial, the farmers were trying to survive financially. All had suffered heavy losses back in 1989 and 1990. Two of the farmers died before the trial. Each of the farmers had to sit for two separate depositions. One farmer was deposed up until 10:30 at night. DuPont requested every farmer's tax return, accounting ledgers, records of supplies, bank statements, and other information for the past several years. Every business in South Arkansas with whom the farmers did business was subpoenaed to produce any records of business transactions. This included banks, accountants, supply houses, Farmers Home Administration, and other government agencies. DuPont's demands extended to such subjects as the quantities of string and stakes purchased in each year which are used in tomato production. Airplanes flew over the farmer's properties taking aerial photographs. Satellite photographs were obtained by DuPont. DuPont's agents came to Bradley County many times to investigate each farmer, going through courthouse records, asking questions of neighbors, all in an attempt to dig up some incriminating evidence to defeat the farmers' claims.

The federal law of preemption applies if Congress has passed sufficiently comprehensive legislation governing a given subject or product, such as a pesticide in this case. In that event, federal law will govern and the law of the state is preempted.
One of the objectives of the advocates of "tort reform" is to have the common law of the states superseded or preempted by federal law.
Federal courts have ruled in pesticide cases that the state law is preempted and federal law will govern on the issue of warnings by the chemical manufacturer. There are exceptions. Under FIFRA (Federal Insecticide Fungicide Rodenticide Act) no pesticide may be sold in the United States unless registered with the EPA. A manufacturer wishing to market its product must first petition the EPA for registration. The manufacturer is responsible for filing with its application information and data regarding the product. The required elements of this information to be supplied are set forth in great detail in the Act. If the information provided by the manufacturer is not accurate or if important information is withheld, then the pesticide is misbranded.
In such case the manufacturer of the pesticide is not entitled to the sanctuary of preemption and the state law on warnings will apply.

In Harrod v. DuPont, DuPont's motion for preemption was not timely filed, hence not considered by the court.
The issue of preemption was subsequently raised by DuPont in another case in which McMath and Benton were the lawyers. Their response to DuPont's motion for preemption was that DuPont should not find sanctuary under a law which it had violated.
DuPont's motion for preemption in that case was denied on that basis.

Cross-examination of witnesses is important in the outcome of any lawsuit. It is crucial in a case where the verdict is dependent upon the testimony of expert witnesses. The secret of successful cross-examination is preparation, preparation, and still more preparation.
The farmers' lawyers were prepared. They had spent a great part of three years in discovery, taking depositions of witnesses, obtaining crucial DuPont interoffice memos and other documents.
These documents and memoranda were studied, analyzed, categorized, and filed so as to be immediately available in court.
The tomato farmers could not compete with DuPont in the number of experts on the playing field, but they could compete in the competence and credibility of their expert testimony.
Plaintiffs had the burden of proof. They had to prove their allegations against DuPont by a preponderance of the evidence. The scales of justice had to tilt in their favor. They had the burden of proving:

1. DuPont Benlate had been used on their tomato crops;
2. that the Benlate was defective;
3. that the Benlate was the proximate cause of the damage to their tomato crops;
4. that DuPont had knowledge or should have known that its product was damaging to plants;
5. that the Benlate was improperly labeled and that the farmers did not receive notice of the potential of damage to their plants; and
6. that the conduct of DuPont in manufacturing and marketing its defective Benlate was willful, and consciously pursued with a reckless disregard for the potential damage to the farmers' crops.

Evans Benton, when first retained by the farmers, had the wisdom to enlist the aid of one of the foremost tomato experts in the United States. Dr. Berl Thomas has extensive experience in the area of tomato production, having consulted throughout the United States and in Mexico with tomato growers. Dr. Thomas, based upon his experience, his observation of the damaged crops, and having reviewed the pertinent documents, testified unequivocally that Atrazine contaminated Benlate had damaged the farmers' crops. Dr. Thomas was unmoved, his testimony unshaken by DuPont's attorneys' vigorous cross-examination.
The farmers proved that Atrazine was present in the Benlate by DuPont's own test data and by DuPont's interoffice memos of their own scientists, and by the testimony of the farmers in the case.
Dr. Ron Hamlen, a DuPont scientist who had been heavily involved for years in the setting of permissible limits, in a deposition taken testified, "My understanding about permissible limits--would be that if it was Atrazine it would be 10 ppm to be in the box that would be sold to the customers. That was my understanding, permissible limits."
Dr. Ron Hamlen, DuPont's liaison with EPA, expressed his feeling about setting limits without testing as follows:
The following has the smell of my frustration around the whole benomyl contamination issue … we jump from Atrazine to flusilazole to "what is next." … We do not test the magnitude of crops or ornamentals to allow a reasonable level of confidence that no problems will occur from trace impurities. However, we still establish permissible level limits and, I feel, it is a little like playing Russian Roulette.
The two discharged employees, the production manager and the lab supervisor, at the Terra plant in Blytheville, Arkansas, were located and deposed and their depositions read into evidence at the trial. They testified that DuPont not only knew about the presence of Atrazine in its Benlate, but DuPont ordered it. EPA called a halt to the sale of Benlate containing Atrazine on September 1, 1989.
Under pressure from EPA, DuPont in September 1989, undertook a limited recall through its distributors, but did not alert farmers and growers of the danger from use of the contaminated product.

On March 22, 1991, DuPont withdrew all of the Benlate 50 DF, pulling it entirely off the market.
It was shown that DuPont never tested the Benlate contaminated with Atrazine to determine its effect on plants in the field.
The lead-off witness for DuPont was the top executive of the Agricultural Products Division, William Kirk. He was an articulate witness and had been carefully prepared to, "pick apart the farmers' claims." However, Bruce McMath on cross-examination of Kirk meticulously went back through all the incriminating DuPont documents which the plaintiffs had introduced in the case. This had the effect of reinforcing and driving home the farmers' case in the minds of the jurors. It was demonstrated that Kirk did not even know about some of the damaging internal memos which the farmers' lawyers had obtained from DuPont and placed into evidence.
Plaintiffs, at trial, took issue with DuPont's claimed result of its 1992 tests in Florida which was supposed to show that Benlate did not cause damage to plants. A DuPont scientist came into court with a slide and video show to demonstrate to the jury the results of the Florida test. The scientist fast forwarded the portion of the video of some of the tests which showed damaged tomato plants. Apparently, neither the scientist testifying, or DuPont's lawyers were aware that the farmers' lawyers had possession of some photos of half-dead tomato plants which the witness had omitted showing in his testimony. On cross-examination, the witness admitted that these damaged plants were from the 1992 Florida tests.
Another DuPont expert witness testified to a test he undertook with Benlate, supposedly demonstrating the lack of any damage. It was left to the plaintiffs, however, to show video tapes demonstrating that some of these plants had in fact died and others appeared withered and half-dead.

The jury was told that DuPont experts had analyzed the farmers' supply purchases and would testify that the farmers had misrepresented their acreage. There was no further proof on the farmers' alleged acreage exaggeration.
DuPont had argued in its motion for severance of the parties, in order to try each farmer's case individually, that there was a potential for confusion on the part of the jury, there being 23 separate farmer's claims to be decided. The solution by Benton and McMath was to prepare a booklet on each farmer, detailing information about his farm, his damages, and supporting documentation. On the cover of each book was a picture of the farmer, so that the jury could better relate the information in the booklet with the individual farmer, each of whom personally testified in the case. The last thing the plaintiffs wanted was confusion.
The plaintiffs called a Mr. Elton Passmore to corroborate the testimony of the farmers that the Benlate had caused damages to plants. Mr. Passmore was a greenhouse owner in North Central Arkansas. He came to the trial to give his testimony on the effect on petunia plants. Mr. Passmore testified that in his 35 years of nursery experience, he had never seen anything like the effect on plants of DuPont's Benlate. DuPont's lawyers strove mightily to exclude the testimony of Mr. Passmore contending that his situation was not sufficiently similar to that of the plaintiffs for his testimony to be relevant. The court overruled DuPont's objections to Mr. Passmore's testimony.

DuPont had contended that the farmers' loss was due to the fact that they were poor farmers. DuPont's own representative from South Arkansas testified that these farmers were some of the best tomato growers in the United States.

Judge Hendren instructed the jury on the law of the case. The jury retired to consider the evidence and reach a verdict.

The jury had been out only two hours. The lawyers received notice from the court to return to the courtroom.
This notice was ominous to the plaintiffs. It would be highly improbable for a jury, with all the claims that they had to consider, and the evidence they had to weigh, to reach a verdict for the farmers in two hours.
As the farmers' lawyers walked over to the courthouse, apprehensive as to what would unfold, Benton suggested optimistically that the jury might want a calculator.
A calculator was the precise request from the jury. Receiving the calculator, the jury returned to its deliberations, spent two days considering all the evidence and returned a verdict of $10.6 million for the farmers, including $3 million in punitive damages.
The Environmental Protection Agency barred the sale of any Benlate containing Atrazine.

DuPont settled with other farmers who had pending cases paying out several hundred million dollars in claims.

A small band of Arkansas farmers who had refused to be intimidated by the threats of a giant corporate entity had gone to court, presented their case to a jury, and obtained a landmark judgment for themselves and indirectly for other farmers who had sustained similar losses.

The right of trial by jury and the contingent fee system again served as a check and balance on corporate dereliction.

The lawyers had spent three years in discovering the facts and researching the law, and then four weeks away from home trying this case. When Bruce McMath went home on the second weekend of the trial, he was welcomed by his family consisting of his wife and three sons.

Bruce's youngest son, then six years of age, wanted to know why his dad was gone so long from home. Bruce told him they were trying to recover some money for the loss of the farmers' tomatoes.

Returning home at the conclusion of the case, Bruce was immediately asked by his inquisitive six-year-old son as to what happened. Bruce informed his son that the jury had returned a verdict of $10.6 million for the farmers. The child exclaimed, "Gee, Dad, that was a lot of tomatoes

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1 Law Reporter, Vol. 36, No. 10, December, 1993 (Tom on Torts)