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Oral Argument Before the Hawaii Supreme Court

No. SCWC-30700, Thursday, September 18, 2014, 11:15 a.m.

GERARDO DENNIS PATRICKSON; et al., Petitioners/Plaintiffs-Appellants, vs. DOLE FOOD COMPANY, INC.; et al., Respondents/Defendants-Appellees, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; and DOE CORPORATIONS 1-10, Defendants. DOLE FOOD COMPANY, INC., Defendant/Third-Party Plaintiff- Appellees, vs. DEAD SEA BROMINE CO., LTD and BROMINE COMPOUNDS LIMITED, Third-Party Defendants-Appellees

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioners:

Sean M. Lyons

Attorney for Respondents Del Monte Fresh Produce N.A., Inc. and Del Monte Fresh Produce (Hawaii) Inc.:

David W.H. Chee

Attorneys for Respondent Dow Chemical Co.:

Sidney K. Ayabe, Calvin E. Young, and Steven L. Goto

NOTE: Order accepting Application for Writ of Certiorari, filed 07/22/14.

COURT: MER, C.J.; PAN, SSM, RWP, & MDW, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Litigation in this case involves the nematocide dibromochloropropane (“DBCP”), which Plaintiffs alleged caused damage to their reproductive systems. The instant case has lasted decades, been back and forth between state and federal courts, and is related to multiple cases on the mainland. Specifically, this case is related to Jorge Carcamo v. Shell Oil Co., and Delgado v. Shell Oil Co., two putative class action cases initially filed in Texas state courts in 1993, then removed to federal court and consolidated with other DBCP cases. The Plaintiffs in the instant case are the same plaintiffs in the Carcamo case. On July 11, 1995, the Texas district court dismissed the consolidated cases for forum non conveniens, ordering in a final paragraph the following:

Other motions

In addition to defendant’s motion to dismiss for f.n.c., a number of other motions are pending. Because Delgado,Jorge Carcamo, Valdez, and Isae Carcamo may be dismissed in 90 days, all pending motions in those cases not otherwise expressly addressed in this memorandum and Order are DENIED as MOOT.

Delgado v. Shell Oil Co., 890 F.Supp. 1324, 1375 (S.D.Tex. 1995).

On October 3, 1997, the Plaintiffs filed a putative DBCP class action in Hawai`i. Defendant Dow Chemical Corporation filed a motion for partial summary judgment on statute of limitations grounds, which the circuit court granted. The Plaintiffs appealed, arguing that the pendency of class action certification motions in the Texas cases “cross-jurisdictionally tolled” the two-year Hawai`i statute of limitations under Hawai`i Revised Statutes section 657-7.

The ICA affirmed the circuit court’s judgment. The ICA did not reach the cross-jurisdictional tolling issue, holding that, in any event, the Texas district court’s July 11, 1995 order denying all pending motions as moot included the class certification motion pending in the Carcamo action. The ICA held that any tolling of Hawaii’s two-year statute of limitations thus ended on July 11, 1995. Therefore, the Plaintiffs’ class action complaint, which was filed approximately two years and three months after the July 11, 1995 order, was time-barred.

On certiorari, the Plaintiffs present the following questions:

A. Whether an order entered on July 11, 1995 – purportedly dismissing the prior class action – that explicitly did not take effect until October 11, 1995 operates to bar Petitioners’ October 3, 1997 lawsuit on limitations grounds.

B. Whether an administrative “housekeeping” order included in a forum non conveniens order denying “all pending motions” as “moot” – without specifying those pending motions – put putative class members on notice that class action tolling had ended.