WILMINGTON, Del. – Three men from Argentina accusing chemical maker DuPont of exposing them to asbestos in Argentina have invoked American jurisdiction pursuant to a treaty that President Franklin Pierce signed in 1853.
The eighth article of the Treaty of Friendship, Commerce, and Navigation between Argentina and the United States promises free and open access to each other's courts.
Wilmington lawyer Thomas Crumplar seeks to test the strength of that pledge.
In June he sued DuPont in New Castle County courthouse at Wilmington on behalf of Ceferino Ramirez, Cristian Dematei and Juan Carlos Laborda.
According to the complaints they worked for DuPont at Mercedes, Argentina.
According to the complaints Ramirez was born in 1932, DeMatei was born in 1973, and Laborda was born in 1940.
According to the complaints Ramirez worked at Mercedes from 1961 to 1993, DeMatei from 1991 to 2002, and Laborda from 1968 to 1980.
Crumplar wrote that recovery would be predicated on substantive law of Argentina, Delaware, or both, "or such law as the court holds to be applicable."
Each complaint repeated the same allegations, and each repeated a sentence that started but never finished.
"These asbestos containing materials being used on the land of premises defendant of which the defendant knew or should have known and/or had reason, to know of, and had a duty under the circumstances to inspect, warn, make safe or otherwise remedy," Crumplar wrote.
The complaints identified Joe Satterley of Louisville, Ky., as "of counsel."
Other Argentinians have already employed the treaty of 1853 to plant their flag in American courts.
Last November the Commodity Futures Trading Commission consolidated cases of 50 Argentinians claiming Citigroup loused up their investments.
In May U.S. appeals judges in Chicago affirmed two district judges who dismissed Argentinian plaintiffs in a car crash case and a class action over contaminated blood.
Neither district judge, however, closed the door to Argentinian litigation.
One explicitly ruled that she would take the case back if Argentina didn't take it, and the other achieved the same result by dismissing without prejudice.
The Seventh District appeals court opened the door still wider.
"Even without the treaty, we would agree that a foreign plaintiff has the same rights in an American court as an American citizen has," Justice Richard Posner wrote.
"It should make no difference that the plaintiffs are Argentines rather than Alaskans," Posner wrote.
He and Justices Terence Evans and John Tinder tilted to Argentina in the blood case because they didn't think an American court should make Argentine law.
In the car crash case they tilted to Argentina because plaintiffs irritated them.
Posner wrote that their lawyers didn't substantiate a figure of $4 to $5 million for the extra cost of litigating in Argentina.
He wrote that they found it tremendously significant that the vehicle would have to be shipped from Chicago to Argentina.
"The vehicle is unlikely to be dragged into the courtroom for inspection by the judge (there is no civil jury in Argentina)," he wrote.
The text of Article VIII of the Treaty of Friendship, Commerce and Navigation follows:
All merchants, commanders of ships and others, citizens of the United States, shall have full liberty, in all the territories of the Argentine Confederation, to manage their own affairs themselves, or to commit them to the management of whomsoever they please, as broker, factor, agent or interpreter; nor shall they be obliged to employ any other persons in those capacities than those employed by citizens of the Argentine Confederation, nor to pay them any other salary or remuneration than such as is paid in like cases by citizens of the Argentine Confederation. And absolute freedom shall be allowed in all cases to the buyer and seller to bargain and fix the price of any goods, wares or merchandise imported into, or exported from, the Argentine Confederation, as they shall see good, observing the laws and established customs of the country. The same rights and privileges, in all respects, shall be enjoyed in the territories of the United States, by the citizens of the Argentine Confederation.
The citizens of the two contracting parties shall reciprocally receive and enjoy full and perfect protection for their persons and property, and shall have free and open access to the courts of justice in the said countries respectively, for the prosecution and defense of their just rights, and they shall be at liberty to employ in all cases such advocates, attorneys or agents as they may think proper; and they shall enjoy, in this respect, the same rights and privileges therein as native citizens.