GERARDO DENNIS PATRICKSON; RODOLFO BERMUNDEZ ARIAS; BENIGNO TORRES HERNANDEZ; FERNANDO JIMENEZ ARIAS; MELGAR OLIMPIO MORENO; SANTOS LEANDROS; HERMAN ROMERO AGUILAR; ELIAS ESPINOZA MERELO'HOOKER ERA CELSTINO; ALIRIO MANUEL MENDEZ; and CARLOS HUMBER RIVERA, individually and on behalf of others similarly situated, Plaintiffs-Appellants,
DOLE FOOD COMPANY, INC.; DOLE FRESH FRUIT COMPANY; DOLE FRESH FRUIT INTERNATIONAL, INC.; PINEAPPLE GROWERS ASSOCIATION OF HAWAII; AMVAC CHEMICAL CORPORATION; SHELL OIL COMPANY; DOW CHEMICAL COMPANY; and OCCIDENTAL CHEMICAL CORPORATION, (individually and as successor to Occidental Chemical Company and Occidental Chemical Agricultural Products, Inc., Hooker Chemical and Plastics, Occidental Chemical Company of Texas and Best Fertilizer Company); STANDARD FRUIT COMPANY; STANDARD FRUIT AND STEAMSHIP COMPANY; STANDARD FRUIT COMPANY DE COSTA RICA, S.A.; STANDARD FRUIT COMPANY DE HONDURAS, S.A.; CHIQUITA BRANDS INC.; CHIQUITA BRANDS INTERNATIONAL, INC., (Individually and as successor in interest to United Brands Company, Inc.); MARITROP TRADING CORPORATION; DEL MONTE FRESH PRODUCE N.A., INC. (incorrectly named as Del Monte Fresh Produce N.A.); DEL MONTE MONTE FRESH PRODUCE COMPANY; DEL MONTE FRESH PRODUCE (HAWAII) INC., (incorrectly named as Del Monte Fresh Produce Hawaii, Inc.); DEL MONTE FRESH PRODUCE COMPANY and FRESH DEL MONTE N.V., Defendants-Appellees, and JOHN DOES 1-10; JANE DOES 1-10; DOES PARTNERSHIPS 1-10; and DOE CORPORATIONS 1-10, Defendants. DOLE FOOD COMPANY, INC., Defendant/Third-Party Plaintiffs -Appellees,
DEAD SEA BROMINE CO., LTD and BROMINE COMPOUNDS LIMITED, Third-Party Defendants-Appellee's
NOT FOR PUBLICATION IN WEST'S HAW AH REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT CIVIL NO. 07-1-0047
Scott M. Hendler (HendlerLaw, P.C.) Jonathan Massey (Massey & Gail LLP) Leslie S. Fukumoto (Leslie S. Fukumoto, AAL, ALC) for Plaintiffs-Appellants
Sidney K. Ayabe Calvin E. Young, Steven L. Goto (Ayabe, Chong, Nishimoto, Sia & Nakamura LLLP) Michael L. Brem (Schirrmeister Diaz-Arrastia Brem LLP) for Defendant-Appellee The Dow Chemical Company
Melvin M. Miyagi Ross T. Shinyama Angela T. Thompson (Watanabe Ing LLP) for Defendant-Appellee Pineapple Growers Association of Hawaii
Judy A. Tanaka Jason C. Zhao (Paul Johnson Park & Niles) D. Ferguson McNiel (Vinson & Elkins, L.L.P.) for Defendant-Appellee Occidental Chemical Corporation
Wendell H. Fuji Anthony F. Suetsugu (Kobayashi, Sugita & Goda) Robert E. Meadows (King & Spalding LLP) Lawrence P. Riff (Steptoe & Johnson LLP) for Defendant-Appellee Shell Oil Company
Melvin M. Miyagi Ross T. Shinyama Angela T. Thompson (Watanabe Ing LLP) Andrea E. Neuman (Gibson Dunn & Crutcher LLP) for Defendants-Appellees Dole Food Company, Inc., Dole Fresh Fruit Company, Standard Fruit Company, Standard Fruit and Steamship Company
Elise Owens Thorn (Clay Chapman Iwamura Pulice & Nervell) Boaz S. Morag (Cleary Gottlieb Steen & Hamilton, LLP) for Defendants-Appellees Del Monte Fresh Produce N.A., Inc. and Del Monte Fresh Produce (Hawaii) Inc.
Richard C. Sutton, Jr. (Sakai Iwanaga Sutton Law Group, AAL, LLLC) for Defendant-Appellee AMVAC Chemical Corporation
Foley, Presiding Judge, Leonard and Ginoza, JJ.
Plaintiffs-Appellants Gerardo Dennis Patrickson, Benigno Torres Hernandez, Fernando Jimenez Arias, Elias Espinoza Merelo, Alirio Manuel Mendez, and Carlos Humberto Rivera(collectively Six Plaintiffs) appeal from the July 28, 2010 Judgment in favor of defendants and against plaintiffs (Judgment) filed in the Circuit Court of the First Circuit (First Circuit Court) .
In this appeal, we consider whether the claims asserted by the Six Plaintiffs are barred by Hawaii's two-year statute of limitation for tort actions or whether a class action pending in another jurisdiction tolls the statute of limitation. We also consider whether the Six Plaintiffs have asserted claims for which a four-year or six-year statute of limitation applies, such that those claims are timely.
For the reasons discussed below, we affirm.
The Six Plaintiffs are citizens of the countries of Costa Rica, Ecuador or Guatamala. They contend that they were harmed from exposure to dibromochloropropane (DBCP) which was allegedly used or manufactured from the 1960s through the 1980s by Defendants-Appellees Dole Food Company, Inc., Dole Fresh Fruit Company, Pineapple Growers Association of Hawaii, AMVAC Chemical Corporation, Shell Oil Company, Dow Chemical Company, Occidental Chemical Corporation, Standard Fruit Company, Standard Fruit and Steamship Company, Del Monte Fresh Produce N.A., Inc., and Del Monte Fresh Produce (Hawaii) Inc. (collectively Defendants). DBCP was used to kill nematodes, which are worms that attack banana plant roots. The Six Plaintiffs contend that they were exposed to DBCP while employed by American fruit companies or their subsidiaries in the commercial cultivation of bananas for sale in the United States. They further contend that DBCP has been banned from use in the United States and allegedly causes sterility, sexual and reproductive abnormalities, and cancer.
In this appeal, the Six Plaintiffs assert that the First Circuit Court erred when it granted Defendant Dow Chemical Company's (Dow Chemical) and Defendant Shell Oil Company's (Shell Oil) respective motions for partial summary judgment, and the other Defendants' substantive joinders thereto, based on the two-year statute of limitations for tort claims under Hawaii Revised Statutes (HRS) § 657-7 (1993). The First Circuit Court granted the motions and joinders to the extent they were based on Dow Chemical's motion, which asserted that, more than two years before filing this action, the Six Plaintiffs were among numerous plaintiffs who had filed individual claims in a Florida lawsuit, Abarca, v. CNK Disposition Corp., No. 95-3765 (13th Jud. Cir. of Hillsborough Cnty., Fla., filed June 9, 1995) (the Abarca action), that were similar to those asserted in this case. Dow Chemical's motion thus argued that, at least by the time they filed the Abarca action, the Six Plaintiffs were well aware of their claims and therefore the claims asserted in this action --filed more than two years later -- are time barred by HRS § 657-7.
The Six Plaintiffs argued in opposition to Dow Chemical's motion, and similarly contend on appeal, that they were putative members of a class action lawsuit filed in Texas state court that asserted similar claims, Carcamo v. Shell Oil Company, No. 93-C-2290, 23rd Jud. Dist. of Brazoria Cnty., Tex. (Carcamo), that the statute of limitations for their claims was thus tolled until class certification was denied in Carcamo, and therefore their complaint in this case is timely. The Six Plaintiffs also argue that they have asserted claims in this case for fraud and negligent misrepresentation, which are subject to a six-year statute of limitations, and that they have also asserted an implied warranty claim which is subject to a four-year statute of limitation, such that these claims are timely.
This appeal therefore presents the following questions:
(1) whether the Carcamo class action lawsuit pending in another state tolled the statute of limitations for the Six Plaintiffs, who were putative members of the Carcamo class, such that this action was timely filed; and
(2) if class action tolling does not save their claims, whether the Six Plaintiffs have asserted causes of action for which a four-year or six-year statute of limitation applies, such that those claims were timely asserted in this case.
We hold that class action tolling does not save the Six Plaintiffs' claims from being untimely. Moreover, the only claim asserted by the Six Plaintiffs with a statute of limitations longer than two years is their claim for breach of implied warranty. However, even the breach of implied warranty claim is untimely.
II. Procedural History In This Case and the Related Cases
A. Identifying the Cases
To give context to the class action tolling issues, we set forth the relevant procedural history not only in this case, but also in the Carcamo class action and the Abarca action. As explained in fuller detail below, Carcamo was filed in August 1993, Abarca was filed in June 1995, and this case was filed in October 1997. These cases are interrelated for a variety of reasons and have each been before respective state and federal courts.
We further note that, for a period of time, Carcamo was consolidated with other similar cases which had all been removed to federal court in Texas and which were consolidated under Delgado v. Shell Oil Co., No. H-94-1337 (212th Dist. Ct., Galveston Cnty., Tex.) (generally Delgado). There were two published opinions issued by the federal courts in Delgado: one by the District Court for the Southern District of Texas in Delgado v. Shell Oil Co., 890 F.Supp. 1324 (S.D. Tex. 1995) (Delgado I); and the second by the Fifth Circuit Court of Appeals in Delgado v. Shell Oil Co., 231 F.3d 165 (5th Cir. 2000) (Delgado II).
B. Carcamo, Delgado, and Abarca
The Carcamo case was initiated on August 24, 1993 in Texas state court. Based on the undisputed evidence in this case, at least as of the Fourth Amended Petition filed on November 22, 1993 in Carcamo, the plaintiffs in that case asserted a class action on behalf of:
[a]11 persons exposed to DBCP, or DBCP-containing products, designed, manufactured, marketed, distributed or used by defendants between 1965 ...