Tomatoland (10 page)

Four states have the power to override the U.S. Environmental Protection Agency’s
approval of a pesticide. Of these, New York and Washington refused to allow application of methyl iodide. California and Florida gave the new fumigant their blessing.
A report by the federal government
said, “Iodomethane formulated with chloropicrin (one of the Pesticide Action Network’s ‘Bad Actors’ in its own right) has shown good efficacy against key tomato pests… in a number of trials.” The same report said that methyl iodide would be technically feasible for Florida tomato growers to apply, and the only major impediments were that it costs more than methyl bromide and that some time will be required for Florida growers to make the transition to methyl iodide.

There are already signs
that the transition, if it takes place, could have serious health effects for Floridians—and not just those who work
in the fields. Tests conducted by Tokyo-based
Arysta LifeScience, the maker of methyl
iodide (which is sold under the trade name Midas), on wells in the Sarasota area near fields where the fumigant had been applied revealed disturbing results. Iodide, the chemical created when methyl iodide breaks down, was found at concentrations anywhere between six and fifteen hundred times the amounts normally found in fresh water. High levels were also found in the air nearby. According to
Susan Kegley, a scientist with the Pesticide Action Network, iodide can cause miscarriages, fetal death, and development disabilities in babies. Yet
Davis Daiker, a scientific evaluation administrator with the Florida Department of Agriculture and Consumer Services, told the Associated Press that evaluating the meaning of the water tests at that point was “premature.”

It seems like an unfortunate choice of wording, in light of Florida’s tragic history of agrichemical use and
reproductive disorders, most poignantly those that affected the migrant community in Immokalee.

Andrew Yaffa began work on the case of Carlitos Candelario with a huge cloud hanging over the lawsuit. The baby was an American citizen, but Herrera and Candelario were undocumented workers. At any time, immigration authorities could deport them back to Mexico. Without the parents as witnesses, any case Yaffa could cobble together would go nowhere. The opposing lawyers might even try to arrange for deportation. As a precaution, Yaffa decided to keep the location where the family was living a secret.

Yaffa also knew that Ag-Mart, the company that operated the fields in which Herrera had worked, would fight back with all its resources. After all, millions of dollars were at stake. “I knew Ag-Mart’s attorneys would do everything they could to say that the child’s condition was genetic,” he said. Determined to spare no expense in hiring expert witnesses, Yaffa contacted Dr.
Aubrey Milunsky, a geneticist and professor of human genetics at Boston University School
of Medicine. Milunsky’s laboratories are recognized worldwide as a referral center for prenatal genetic diagnosis. Among the more than twenty books the physician has authored or edited is a major reference work entitled
Genetic Disorders and the Fetus: Diagnosis, Prevention and Treatment
. Milunsky agreed to fly down to Miami. He administered a physical examination of Carlitos and took tissue samples from the baby and his parents back to his Boston laboratory, where he drew out DNA samples. Milunsky’s conclusion: Genetics could not have caused Carlitos’s condition. “Once we ruled out genetics,” Yaffa said, “it became an environmental exposure case.”

To marshal the evidence for the trial, Yaffa assembled an impressive panel of experts from around the country. Examining the cluster of deformed births in the small community during such a short period of time, Dr.
Omar Shafey, an epidemiologist with a PhD from the University of California Berkeley and now a professor of global health at Emory University, told Yaffa that such a “cluster” could not possibly have happened by chance. There had to be some cause.
Dr. J. Routt Reigart
, now director of general pediatrics at the Medical University of South Carolina and formerly chair of both the American Academy of Pediatrics Committee on Environmental Health and the U.S. Environmental Protection Agency’s Children’s Health Protection Advisory Committee, stated that in his opinion Herrera was exposed to a “witch’s brew” of herbicides during the early stages of her pregnancy.
Dr. Kenneth Rudo
, a toxicologist with the North Carolina Division of Public Health, said, “It does appear that an association more likely than not occurred between the exposure of these women to these teratogenic pesticides in the Ag-Mart fields and the adverse developmental effects observed.”

But even with the weight of expert testimony building up in favor of Candelario and Herrera, a great deal depended on how the couple would comport themselves before a jury in an American courtroom. Until coming to the United States, the young couple had spent all their lives in Huehuetono, a village of a half dozen streets along a twisty,
little-traveled road in the mountains of the Mexican state of Guerrero. Having grown up speaking in their Native American Amuzgo language, which is spoken by only forty-five thousand people living in parts of Guerrero and Oaxaca, Herrera and Candelario were barely literate, knew no English, and had only rudimentary Spanish.

On the morning of June 23, 2006
, the two opposing legal teams met to take the parents’ depositions around the marble-topped conference table at Yaffa’s partnership’s headquarters in Miami’s Coconut Grove neighborhood. The fifteenth-floor penthouse offices offered sweeping views of Biscayne Bay and the northern Keys.
Jeffrey Fridkin, of the Naples firm of Grant, Fridkin, Pearson, Athan, and Crown represented Ag-Mart. With over a decade more experience than Yaffa, Fridkin was a formidable opponent. He is listed in the commercial litigation section of
The Best Lawyers in America,
a peer-reviewed publication that is the legal equivalent of the Academy Awards.

Through a translator, Herrera painted a picture of a journey that is common to migrant workers in Florida’s tomato fields. She had gotten her job with Ag-Mart when a recruiter—in Herrera’s words a
pollero,
or “chicken smuggler” (also known as a
“coyote”)—came to her village and offered to take her to the company’s farms in North Carolina as part of a larger group of workers he had hired.

Despite her unsophisticated background, there were early signs during the four-hour deposition that the young mother would be a credible witness. Showing her a document called “
Chasing the Sun Training Acknowledgement,” which referred to a pesticide-handling training film that new Ag-Mart employees were supposed to watch before entering the fields, Fridkin asked if Herrera’s signature was on the document. She assented.

Fridkin asked, “Do you recall seeing that video?”

“No, no. I did not see any video,” Herrera answered. “I just signed the papers that they gave me.”

Fridkin moved on to ask her about a questionnaire that
Ricardo Davilos, an employee of the Florida Agriculture Department, filled
out after the birth of Carlitos. Quoting directly from the document, Fridkin, addressing Herrera in the third person, said, “The next sentence reads, ‘I have never been sprayed and was not made to work in a field that was sprayed.’ Did she tell that to Mr. Ricardo?”

“No, I didn’t say that.”

“What did you tell Mr. Ricardo about being sprayed or not being sprayed?”

“Well, I told him that when—every time they would spray, we would be there picking tomatoes, and we’d feel badly. And then we’d get headaches, earaches. Our eyes would burn. And, also, I—I would get sore throats. I always felt like it burned me and my stomach as well, and I would get a rash on my skin.”

“Is that what she told Mr. Ricardo?”

“Yes, that’s what I told him, but I don’t know how he wrote that down.”

“But she did tell him about getting rashes on her skin?”

“I told him about it. My husband has it to this day, he had some, like, blotches.”

“Okay. So we are clear, everything that she has just said about how she felt, her eyes burning, are all things that she told Mr. Ricardo at the time that she put her signature onto Exhibit Number Six?”

“I did tell them, but they did not tell me what they wrote down because it was all in English.”

“So did Mr. Ricardo ever tell her what he was writing down as her statement?”

“No.”

“The next sentence reads, ‘I notice when you picked tomatoes all day, your clothes would be all green, and you would smell.’ Is that something she said to Mr. Ricardo?”

“Yes,” Herrera responded.

After a few more questions, Fridkin asked, “Was it ever enough spray to make her clothes wet?”

“Well, yes,” Herrera said. “Like I said awhile back, when it’s very, very hot. And then it does wet you completely, the body, the face, the hair.”

“Was there ever a time when the spray, as opposed to sweat, made her wet?”

“Yes.”

“And would that be true on many occasions?”

“Yes.”

“And would that be true when she was picking that she would get enough spray that it would make her wet even with no sweat?”

“That’s right. Because when you put your hands in the plants, immediately it sticks to you.”

“Does she wear gloves?”

“No, I never use them because we didn’t have enough money to buy the gloves.”

“And when you were tying and staking, were you sprayed to where you would get your clothes wet with spray?”

“Yes.”

“And when you were tying and staking, how many times in a week did you get sprayed to where your clothes were wet with spray?”

“The—the same, two to three times a week.”

Toward the end of the deposition, Fridkin asked, “Was this pregnancy planned? Did they plan to have the baby?”

“Yes.”

“How did she find out—how did you find out you were pregnant?”

“Well, from the time I arrived, I always felt badly, but I didn’t know it was about pesticides. I always had headaches, stomach aches, pain in my eyes, my nose, my throat, my lungs, because I couldn’t breathe. But later I felt even worse. So I told my husband that I wanted to have a pregnancy test because I thought that I might be pregnant.”

“And how far in the pregnancy were you when you found out you were pregnant?”

“It was about a month. A month and two weeks.”

After a break
, Fridkin began to depose Candelario, whose testimony painted an even grimmer picture of the conditions under which the expectant couple toiled. “How was it that you would get sprayed to where your clothes were saturated?” asked Fridkin.

“Well, sometimes when they were going—when they’re passing close by us on one side of us, and then they’ll—they’ll spray and then wet us. But it’s when they are passing close by.”

“And would that happen more than one time a day?”

“Yes. Well, that would happen three times, three times or twice a week.”

“Did you ever report that to anybody at Ag-Mart?”

“No. Because the people that are spraying there, they’re—they’re right there. And sometimes we scream at them to let them know, ‘Why are you spraying us? Can’t you see that we’re here?’ So we would run. We didn’t have any other option. We would run.”

“Would you run two or three times a week out of the field?”

“No, not out. Where—from where they were spraying. So we would run, but the wind would take the spray with it, so we’d run, but it was all the same.”

“And that’s what happened two or three times a week for every week that you worked for Ag-Mart, whether you were in Florida or in North Carolina; correct?”

“Yes.”

The obvious question was why Herrera simply didn’t stop working, and her husband gave Fridkin the answer.

“We always had to work the same because we were threatened. Once I was—I told her, ‘Stay and rest,’ and the person in charge said, ‘Are you going to go to work, or are you just going to—just be that way and do nothing.’ One day she stayed at home, and then he asked for her. ‘Why isn’t she here working?’ Well, what can I tell him? She stayed behind. And then he said, ‘Well, what do you come here for? Do you come to work or not to work? If you’re not going to work, then you need to leave the house. You need to leave.’”

By the end of that day of depositions, Yaffa had no worries about how his clients would comport themselves on the witness stand, should the case make it to trial. But there was a weakness in their testimony that an opposing lawyer would surely exploit: Candelario and Herrera had an enormous amount to gain by claiming that they were exposed to pesticides. Yaffa needed a witness who had worked in those tomato fields, who had seen what happened and was willing to talk but had no vested interest in the outcome of the lawsuit. One afternoon his assistant took a call from a woman who identified herself as
Yolanda Cisneros. Cisneros told Yaffa that she had worked for Ag-Mart for five years before being summarily fired. She had been in the same fields as Herrero and Candelario, whom she remembered as an extremely good worker. And she had plenty more to say.

Cisneros and I agreed
to meet for lunch at a barbecue joint in Immokalee. She was a stocky woman in her mid-fifties, barely five feet tall, but with a forceful, outgoing personality. After a hard handshake, she introduced herself. “I’m the big-mouthed woman you heard about.” We took a booth at the back of the room. A jukebox played a string of twangy country tunes as she outlined her life story. Unlike most of the farmworkers in Florida, Cisneros was born on the right side of the Rio Grande, the Texas side. When she was a child, the family moved to Immokalee, and she grew up working in the fields beside her father, mother, and sister as the family followed the harvest each year north to South Carolina and then back to southwest Florida. When Cisneros became old enough to enter school, the family’s lifestyle changed. Her father worked in Immokalee for as long as possible each year and then went north alone. “Get an education,” he told his daughters. “That way, you’ll be able to do some good in the world.” The day school ended for the summer, Cisneros’s mother packed up Cisneros and her sister and joined her father. The entire family would harvest produce until school started again in the fall.