Hawaii court weighs whether banana workers proved pesticide exposure

The case over a banned pesticide used on banana plantations in Costa Rica has spanned thirty years and multiple courts.

by Jeremy Yurow, Court House News, April 23, 2026

HONOLULU (CN) — Thirty years ago, six Costa Rican banana plantation workers said they were exposed to a banned pesticide that left them sterile and caused miscarriages.

Now, they’re asking the Hawaii Supreme Court how much evidence a plaintiff must show to establish toxic exposure, and what standard appellate courts should apply when reviewing a trial court’s decision to exclude expert testimony.

Since the late 1990s, the class action over exposure to dibromochloropropane, or DBCP — a pesticide injected into the soil to kill nematodes in banana fields — has wound through federal and state courts, including multiple levels of the Hawaii judiciary, and even a foray into Texas.

One named plaintiff, Fernando Jimenez Arias, says exposure to the chemical caused his infertility and his wife’s miscarriages. Jimenez Arias died earlier this year, after the Hawaii Supreme Court agreed to take up the case.

DBCP was originally manufactured by Dow Chemical Company and applied by Del Monte Fresh Produce in Costa Rican operations. The EPA banned most uses of the pesticide in the United States in 1979 after male workers at a California plant reported they could not father children, but companies continued distributing it abroad.

An Oahu judge granted summary judgment for Dow and Del Monte in 2022 and excluded expert testimony from Dr. Michael DiBartolomeis, who offered circumstantial evidence that Jimenez Arias was more likely than not exposed to DBCP and that the exposure caused his injuries.

The lower court found DiBartolomeis’ opinion lacked an evidentiary basis on causation and that the record contained no direct evidence of exposure. The Intermediate Court of Appeals reversed in 2025, finding genuine disputes of fact on both exposure and causation. Dow and Del Monte then appealed.

Michael Brem, an attorney for the companies, told the justices that Jimenez Arias’ own deposition testimony was fatal to his case.

Jimenez Arias worked primarily as a fruit inspector at a packing plant, not in the fields, and testified he entered the fields only “every once in a while.”

“He testified himself that he had never used the product,” Brem said. “He testified himself that he couldn’t identify a container of DBCP. He has no direct exposure.”

“Circumstantial evidence cannot be considered?” Acting Chief Justice Sabrina McKenna asked, noting his testimony that Jimenez Arias rested in warehouses where farm chemicals were stored.

Brem said that without evidence linking DBCP to the fruit Jimenez Arias handled, whether through rainfall, timing or other factors, any inference would be speculative. He added that Jimenez Arias saw only unidentified bags, not DBCP, which came in sealed liquid drums, and that there was no evidence of spills.

Justice Todd Eddins pointed to Del Monte’s admissions that DBCP was applied across 18 farms in two-month cycles, twice a year, while Jimenez Arias rotated through those farms full-time.

“Why wouldn’t there be a reasonable inference under those facts that he was exposed?” Eddins asked.

Brem said the chemical was injected into the ground, not sprayed, and there was no evidence it reached the packing station.

Jonathan Massey, arguing for the plaintiffs, described heavy and continuous exposure on the Bandeco plantations.

During Jimenez Arias’s two and a half years there, thousands of gallons of DBCP were applied each year, Massey said. Banana plants formed a canopy that trapped vapors for days, while Jimenez Arias lived and worked on the farms seven days a week, with one day off every eight days.

Based on DiBartolomeis’ calculations, Massey said even conservative estimates put Jimenez Arias’ exposure in the packing plant at 50 times the EPA standard, and a single afternoon in the fields at 200 times or more.

“The magnitude by which he exceeded the EPA standard makes a lot of the quibbling about how much irrelevant,” Massey said.

Massey urged the court not to adopt rigid exposure tests from asbestos cases, pointing to Ninth Circuit precedent and a recent federal decision in the Red Hill water contamination litigation that allowed claims without proof of precise dose.

Brem responded that the Ninth Circuit misread prior cases and said even Washington state’s more lenient test requires factors not met here. He also rejected using injury alone as proof of exposure.

“You cannot say: I have condition X, condition X is known to be caused by substance Y, therefore I was exposed,” Brem said. “That would put this state as a definite outlier in the jurisprudence across the country.”

On expert testimony, Brem said the appeals court improperly applied a summary judgment framework and reviewed the exclusion de novo rather than for abuse of discretion.

Massey countered the appeals court applied the correct standard and that the trial court’s finding of no exposure evidence was clearly erroneous, making the exclusion an abuse of discretion.

Acting Chief Justice McKenna presided alongside Justices Todd Eddins, Lisa Ginoza and Vladimir Devens, with First Circuit Judge Taryn Tomasa sitting by assignment.

The court took the matter under advisement.

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