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Update: Tellez v. Dole Food Company, Inc.; Allegations Against Plaintiffs' Attorneys Found False; Case Dismissed Despite False Testimony; Thousands of Cases in Jeopardy As Courts Await Appeal

Allegations Against Plaintiffs' Attorneys Found False; Case Dismissed Despite False Testimony; Thousands of Cases in Jeopardy As Courts Await Appeal

March 14, 2011

Los Angeles- Today Los Angeles Judge Victoria Chaney Issued a final, redacted decision in the controversial Tellez v. Dole Food Company, Inc. In her ruling, Judge Chaney exonerated plaintiffs' attorneys Mark Sparks, of the Texas-based law firm Provost Umphrey, and Benton Musselwhite, a solo practitioner located in Houston, of charges that the attorneys perpetrated a fraud on the court or conspired to fabricate false testimony.

Despite Judge Chaney's ruling that the testimony against Sparks and Musselwhite has no basis, the judge continues to rely upon evidence from the same discredited "witness" as the grounds for her dismissal in Tellez.  That case claims that Dole used a pesticide that had been banned in the United States on its banana plantations in Central America. The pesticide led to the sterilization of thousands of farm workers and has resulted in 9,766 similar cases filed in Nicaragua, Costa Rica, Honduras, Panama and California. In California alone, plaintiffs have filed 2,290 cases for damages against Dole valued at millions of dollars.

Although Oakland appellate attorney Steve Condie is expected to appeal Judge Chaney's decision in Tellez, lawyers for the plaintiffs who are not involved in Tellez, like Sparks, are concerned that this "secret" evidence of fraud against the court by a now discredited "witness" could still jeopardize thousands of these legitimate cases pending in other courts. As a result, judges in the U.S. and Central America handling these other cases are watching the outcome of Tellez closely.

"The whole reason I took this case is that I expected to appeal it," said Condie. "I believe that the danger of a single judge rendering decisions based on secret testimony should be addressed by the appellate court, to ensure that justice is done"

Sparks believes the Tellez case impacts other courts overseeing litigation against Dole. "Even though I was exonerated, if the appellate court affirms Judge Chaney's dismissal, this could have a ripple effect across thousands of cases taken by Provost Umphrey," Sparks said. "That would be tragic, unwarranted and unfair as this witnesses' testimony against the plaintiffs has already been discredited by Judge Chaney's very own decision that exonerated me."

Add to that the fact that Judge Chaney has ordered sanctions against Condie, as a result of his efforts to report alleged wrongdoing by of attorneys for Dole to the California State Bar. In her sanctions order, Chaney alleged that Condie violated a protective order by revealing the names of secret witnesses in the Tellez case during his meeting with the Office of the State Bar Trial Counsel. There, Condie had filed an ethics claims for misconduct against Gibson Dunn & Crutcher's Scott Edelman, as well as Dole's Vice President and Chief Counsel Michael Carter. Gibson Dunn represents Dole. Several witnesses at the meeting insist that Condie never revealed the names of the secret witnesses and should never have been recommended for court-ordered sanctions by attorneys for Dole.

"This whole situation stemmed from Judge Chaney allowing secret witnesses for the defendants to make wild accusations against the plaintiffs and their lawyers, without allowing the accused to face their accusers," Sparks says.

Condie's complaint claimed that Edelman, Carter and Perrino broke the Rule of Professional Conduct 5-310, "by offering witnesses valuable consideration in exchange for testimony" and presented recorded testimony as evidence. Later, the plaintiffs discovered that the key secret witness admitted to discussing a financial settlement with Edelman and Carter.

"If Judge Chaney's ruling is allowed to stand, what will it say to foreign litigants seeking justice against American companies in the United States?" asks Sparks, who has represented foreign-born plaintiffs in the firm's Chemical Exposure and Toxic Tort practice against U.S. companies for over a decade in numerous domestic and international venues.