A Honolulu attorney suing DuPont Pioneer wants to stop representing three plaintiffs who refused to sign a waiver that would prevent them from suing the seed company for medical issues associated with dust from the company’s fields on Kauai.

Attorney Kyle Smith represents more than 190 plaintiffs who live near DuPont Pioneer’s fields in West Kauai. Last year, in a bellwether trial, a federal court jury awarded $500,000 to 15 plaintiffs who contended the dust from the nearby fields damaged their homes.

That case dealt solely with the issue of property damage, despite concerns from some residents that agricultural pesticides may have contaminated their homes. A judge barred witnesses from talking about health issues associated with the dust.

photograph Anita Hofschneider/CIvil Beat
DuPont Pioneer closed its Kekaha parent seed facility last year, but still operates farms in Waimea on the west side of Kauai. Anita Hofschneider/Civil Beat

Since last year’s victory, Smith has been involved in settlement negotiations with DuPont Pioneer for all 190 plaintiffs.

But the attorney filed motions in federal court last month to withdraw as counsel for Klayton Kubo, Wendell Kabutan and his wife Wanda. Judge Barry Kurren plans to hold a hearing on the motions at 2 p.m. Thursday in Honolulu.

Laurie Yoshida, a spokeswoman for DuPont Pioneer, declined to comment for this story due to ongoing litigation. Smith declined to comment on ongoing settlement negotiations or settlement terms.

“As far as the motion to withdraw, it’s related to a fundamental disagreement on how to proceed in the case,” he said, adding that there was a “breakdown in communication between the clients and myself.”

Kubo and Kabutan tell a different story. They said Smith is leaving them hanging out to dry after they refused to sign a waiver giving up their right to sue DuPont Pioneer over any medical issues that might arise from dust in their homes.

Hawaii’s seed industry generally has maintained that there’s no evidence its agricultural operations have harmed public health on Kauai. A recent draft of a government-sponsored study seemed to back that up, concluding that it could not find statistically significant evidence that pesticide use on Kauai has harmed the community or the environment.

But the report also pointed out that large data gaps hindered the analysis. It recommended additional data reporting requirements that the seed industry has resisted.

Kubo said he is giving up $12,000 — his share of a proposed settlement — by rejecting the waiver. But he doesn’t want to give up the right to sue DuPont Pioneer if he gets sick from the dust that blows into his home.

His neighbor, Kabutan, said his asthma got so bad when he lived in Waimea Town that he went to the emergency room multiple times. He and his wife moved to Oahu last October to get away from the dust, and ended up living in a van for two months before they found a home with friends.

Kabutan said he doesn’t think he should have to sign a medical waiver in order to receive compensation for property damage by DuPont Pioneer.

“It doesn’t make any sense except it’s advantageous to DuPont Pioneer to get everyone to sign a waiver so they know they’re off the hook,” Kabutan said.

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