Case 0:08-md-01916-KAM Document 3407 Entered on FLSD Docket 05/21/2023 Page 1 of 11

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-MD-01916-MARRA

IN RE: CHIQUITA BRANDS INTERNATIONAL, INC.

ALIEN TORT STATUTE AND SHAREHOLDER
DERIVATIVE LITIGATION
______________________________________________/
This Document Relates to:
ATS ACTIONS
______________________________________________/

08-80465-CIV-MARRA (D.C. Action) (Does 1-144)

10-80652-CIV-MARRA (D.C. Action) (Does 1-976)
11-80404-CIV-MARRA (D.C. Action) (Doe 1-677)
17-80475-CIV-MARRA (Does 1-2146)
______________________________________________/

Wolf Plaintiffs’ Response to Defendants Joint Motion

to Preclude Consolidation of All Bellwether 1A and 1B Cases [DE 3402]

The Defendants’ proposal would complicate the bellwether trial schedule. Having every

common witness testify in every trial - including ten times in the first group of trials alone - would

waste the witness’ time and create inconsistencies in their testimony. Instead, the Court should

order bifurcated trials, establishing the common facts in one, or perhaps several trials, and leaving

only the facts pertaining to particular cases to be resolved in subsequent trials. The main issue in

this case is whether the Defendants’ payments to terrorist groups were negligent,1 or should be

1
The Wolf Plaintiffs have always argued that the primary cause of action in this case is negligence,
and that the doctrine of negligence per se should apply, since the Plaintiffs are the kinds of persons
that the laws against terrorism financing were intended to protect. The Torture Victim Protection
Act provides an additional theory with a different statute of limitations, but does not apply to the
corporate Defendant. It’s not clear whether any of the nuances of U.S. tort law will apply, such as
proximate cause, foreseeability, or the difference between negligence and gross negligence. The
Defendants argue that “Certain claims, varying by location, may also have a stronger or weaker
perceived link to Chiquita than others.” DE 3402 at 16. Although it is unclear how the jury would
weigh this evidence, there does not appear to be an element of foreseeability in Colombian tort
law, and it’s not clear how such an element could be part of the jury instructions.
1
Case 0:08-md-01916-KAM Document 3407 Entered on FLSD Docket 05/21/2023 Page 2 of 11

excused due to the Defendants’ interest in protecting the safety of their employees. This is distinct

from the question of whether any particular injury was proximately caused by the payments, or the

foreseeable result of them.2

Alternatively, common witness testimony could be recorded by video and replayed in

subsequent trials. Allowing more than one jury to decide the common issues would provide a

statistical answer to the question of the Defendants’ overall liability, instead of an all-or-nothing

or “bet the company” result. However, this would be impractical if applied beyond a few rounds

of bellwether trials, and leave the key, common issue undecided. That is, whether the Defendants’

conduct was wrong, or whether their conduct was excused by duress.3

A. The Court should order that the trials are bifurcated, separating the common
witnesses and evidence from the witnesses and evidence pertaining to particular cases.

The litigation of asbestos cases in state courts provides a model we can use. After common

discovery, jury trials are typically held for small groups of plaintiffs with common defendants and

similar allegations of exposure. See Mark C. Weber, Mass Jury Trials in Mass Tort Cases: Some

Preliminary Issues, 48 DePaul L. Rev. 463 (1998); Thomas E. Willging, Asbestos Case

2
Another test we use is whether the Defendants’ conduct was a “substantial factor” in causing the
injury. The relatedness of each case to Chiquita’s payments will depend on the location and date
of each murder, and other factors suggesting whether or not the decedent would have been viewed
as a target. The jury will have to be instructed on a legal standard to apply, and determine whether
the Defendants’ conduct was substantial enough for liability. How or whether these concepts
appear in the jury instructions is an important question that is yet to be resolved.
3
From the Wolf Plaintiffs’ perspective, whether a particular Individual Defendant is liable for a
particular incident is a detail that will not affect most of them. Damages in TVPA cases typically
run into millions or tens of millions of dollars per case, but we don’t believe the Individual
Defendants have the resources to pay these kinds of judgments, except for the first few bellwether
cases, which could bankrupt them. This is not the result we are trying to get. The vast majority of
the Plaintiffs will have to recover their damages from the corporate Defendant under a negligence
theory. From our perspective, facts about the Individual Defendants are common facts. The first
trial or trials could determine whether a jury would find each of them liable, and a cutoff date when
they joined the conspiracy, that could be applied in subsequent cases. But the outcome of the case
turns on the question of whether the company, as a whole, was negligent.
2
Case 0:08-md-01916-KAM Document 3407 Entered on FLSD Docket 05/21/2023 Page 3 of 11

Management: Pretrial and Trial Procedures (1985) at 31-32 (noting that group trials of five to ten

asbestos cases are common in federal courts).4

A similar result could have been achieved using the doctrine of issue preclusion against the

defendants in separate trials, but few courts have applied offensive issue preclusion in asbestos

cases due to the inconsistency of the results. See Michael D. Green, The Inability of Offensive

Collateral Estoppel to Fulfill Its Promise: An Examination of Estoppel in Asbestos Litigation, 70

IOWA L. REV. 141, 147-52, 172-78 (1984). Without a doubt, the parties would want to argue

issue preclusion in subsequent cases, and these legal questions can be avoided by separating the

common issues in bifurcated trials. Then there would be no question of issue preclusion, because

the later juries wouldn’t even get to decide the issue.

B. The Hendrix factors do not favor the individual trials proposed by the Defendants.

The Defendants analyze the factors weighing for and against consolidation, including “(1)

the risk of prejudice in allowing the matters to proceed separately, (2) the potential for confusion

of facts or legal issues, (3) the risk of inconsistent verdicts, (4) the burden on parties, witnesses,

and the court, and (5) the length of time and relative expense involved in conducting a single trial

or multiple trials,” citing Blitz Telecom Consulting LLC v. Peerless Network, Inc., 727 F. App’x

4
For example, in AC & S, Inc. v. Godwin, 642 A.2d 192 (Md. 1994), asbestos cases filed in various
Maryland state courts were consolidated in the Baltimore Circuit Court. The transferee court
initially devised a plan to coordinate pretrial proceedings and try those cases that had not settled
or been dismissed in groups of ten. Then, the court modified the plan so that there would be a
four-phase combined trial embracing the claims of 8,555 plaintiffs and six defendants. Id. at 120-
121. In phase one, all defendants were tried as to the issues plaintiffs had in common against them.
The jury determined that the defendants were negligent and liable. In phase two, the jury decided
six representative plaintiffs' cases as to all remaining issues. The three plaintiffs selected by
plaintiffs' counsel received verdicts in their favor, and the three selected by defendants' counsel
lost, with the jury finding that they didn’t have asbestos-related injuries. The third and fourth
phases of the trial addressed punitive damages, with phase three establishing liability, and phase
four establishing a multiplier amount for compensatory damages in order to determine punitive
damages. Id.
3
Case 0:08-md-01916-KAM Document 3407 Entered on FLSD Docket 05/21/2023 Page 4 of 11

562, 570-71 (11th Cir. 2018) and Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495 (11th

Cir. 1985). Notably, Hendrix was an asbestos case. In Hendrix, the 11th Circuit affirmed the

district court's decision to consolidate four products liability cases that all alleged that asbestos

exposure caused them to contract an asbestos-related disease, notwithstanding the presentation of

different bodies of proof on causation. 776 F.2d at 1495–96. Therefore, the Court can be confident

that the Eleventh Circuit would uphold this procedure. The Wolf Plaintiffs agree that Hendrix is

the precedent case in this circuit, and our case should achieve the same result.

1. The risk of prejudice in allowing the matters to proceed separately is minimal.

The Defendants argue that until at least one round of bellwether trials has been completed,

the mass tort case will not be “mature,” and that consolidation wouldn’t be appropriate until that

has occurred. DE 3402 at 4-5. There is no case law defining this concept of maturity. The

Defendants cite Eghnayem v. Bos. Sci. Corp. 873 F.3d 1304, 1314 (11th Cir. 2017) as an example

of what can go wrong when different kinds of cases are consolidated. Eghnayem was a products

liability case about a medical device. The defendants argued that each plaintiff had different

complaints, different medical histories, and different treating doctors; was prescribed the product

at different times for different conditions; and claimed to suffer different injuries, after different

lengths of exposure, resulting in different treatment courses. Id. at 1312. The district court denied

the defendants’ motion and consolidated the cases for trial. Id. An eight day trial ensued, resulting

in jury awards of more than six million dollars to each of the plaintiffs. Id.

On appeal, the Eleventh Circuit began its analysis with Rule 42(a)5 and the Hendrix case.

Eghnayem, 873 F.3d at 1313. It noted that in exercising its discretion under this rule, the trial court

5
Rule 42(a) permits a district court to consolidate separate actions when they involve "a common
question of law or fact." Fed.R.Civ.P. 42(a). Consolidation may take several forms. The Court
may combine cases for discovery only, for trial only, or for all purposes. State courts in Florida,
4
Case 0:08-md-01916-KAM Document 3407 Entered on FLSD Docket 05/21/2023 Page 5 of 11

is obliged to consider “Whether the specific risks of prejudice and possible confusion are

overborne by the risk of inconsistent adjudications of common factual and legal issues, the burden

on parties, witnesses and available judicial resources posed by multiple lawsuits, the length of time

required to conclude multiple suits as against a single one, and the relative expense to all concerned

of the single-trial, multiple-trial alternatives.” Id. at 1313-1314. "The court must also bear in mind

the extent to which the risks of prejudice and confusion that might attend a consolidated trial can

be alleviated by utilizing cautionary instructions to the jury during the trial and controlling the

manner in which the plaintiffs' claims (including the defenses thereto) are submitted to the jury for

deliberation." Id. "A joint trial is appropriate where there is clearly substantial overlap in the issues,

facts, evidence, and witnesses required for claims against multiple defendants." Id., quoting

Allstate Ins. Co. v. Vizcay, 826 F.3d 1326, 1333 (11th Cir. 2016). But "[w]here prejudice to rights

of the parties obviously results from the order of consolidation, the action of the trial judge has

been held reversible error." Id., quoting Dupont v. S. Pac. Co., 366 F.2d 193, 196 (5th Cir. 1966).

"District court judges in this circuit have been urged to make good use of Rule 42(a) in order to

expedite the trial and eliminate unnecessary repetition and confusion." Id., quoting Young v. City

of Augusta, 59 F.3d 1160, 1169 (11th Cir. 1995) (quotation omitted and alterations adopted).

at least, may consolidate separate actions into one, and obtain a single judgment when the issues
and witnesses are the same, and the rights of the parties can be determined in one action. See
Tommie v. LaChance, 412 So. 2d 439 (Fla. 4th DCA 1982). It is also possible to consolidate
separate actions solely for trial, resulting in separate judgments for each action. See Shores Supply
Co. v. Aetna Cas. & Sur. Co., 524 So. 2d 722 (Fla. 3d DCA 1988) Cases consolidated for trial
don’t lose their separate identities. Wagner v. Nova University, Inc., 397 So. 2d 375, 377 (1981)
(consolidation doesn’t merge suits into a single cause, or change the rights of the parties, or make
those who are parties in one suit parties in another suit). Judgments entered in consolidated cases
apply only to the parties named in the judgments. Courts usually consolidate cases to speed up the
trial process and to eliminate duplicative trials involving the same parties, issues, and evidence.
See Maharaj v. Grossman, 619 So. 2d 399 (Fla. 4th DCA 1993).

5
Case 0:08-md-01916-KAM Document 3407 Entered on FLSD Docket 05/21/2023 Page 6 of 11

In Eghnayem, the 11th Circuit found that the district court didn’t abuse its discretion in

consolidating these cases for trial. This is opposite to the result the Defendants want. “The

plaintiffs all brought the same claims based largely on the same facts: BSC's Pinnacle device was

unreasonably dangerous by design, and BSC failed to include sufficient warnings with the device

to alert physicians to that danger. Although each plaintiff's proof of causation was necessarily

different, generally differences in causation are not enough, standing alone, to bar consolidation

of products liability claims. And any danger of prejudice arising from the consolidation was

reduced in this case, because the district court explained the consolidated nature of the trial to the

jury and expressly instructed it to consider each plaintiff's claims separately. Notably, this is not

the first time we have affirmed the consolidation of products liability claims that require individual

evidence of causation.” Id. at 1314.

The Defendants then try to distinguish our case from Eghnayem, the main case they rely

on. The Defendants argue that (1) the likelihood of confusion is higher in a personal injury type

of case than in a products liability case, (2) the Plaintiffs do not bring claims against the same

Defendants, and (3) that each injury resulted from a different event, rather than a single disaster or

use of a common product. Id. at 6. They assert that “Plaintiffs’ proofs require individual evidence

and analysis unlike when damage is caused by a known product or event.” Id. They further argue

that ten cases per trial is an “exceptionally high volume,” id. at 7, and that “the cases would likely

be impossible to keep straight,” id., again relying on the Eghnayem case, and ignoring language in

it that suggests the opposite. “BSC has not shown that this individual evidence made the suit so

confusing that it was obviously prejudiced and thus has failed to tie the confusion to the

consolidation order.” Id. at 1314.

6
Case 0:08-md-01916-KAM Document 3407 Entered on FLSD Docket 05/21/2023 Page 7 of 11

The Eghnayem case cited by the Defendants supports the Court’s consolidation order. A

bifurcated trial, separating the common issues from the issues particular to each case, simplifies

the jury’s task even more, and would greatly simplify the litigation after the first trials.

2. The potential for confusion of facts and legal issues is best reduced with
bifurcated trials.

The second Hendrix factor also supports a bifurcated trial schedule. It could be argued that

the more facts and issues there are to decide in one trial, the higher the potential for confusion.

The Defendants argue that the confusion will be less if only one case is tried at a time. This may

be true, but separating the common issues into a separate trial is even simpler. The Defendants’

plan would require many juries, and each one would have to decide both the common facts and

issues, and the ones particular to the Plaintiffs’ case.

What would confuse the jury would be to suggest that they have to link each Individual

Defendant to each particular murder. They only find that the person participated in the conspiracy,

or aided and abetted it, and (perhaps) the foreseeability of the injuries. Defendant Friedheim, for

example, may have advocated making regular payments to the terrorists, as reflected in certain

statements made at meetings, but his statements and actions were the same with respect to all

Plaintiffs. The Plaintiffs concede that he couldn’t be liable for murders occurring before he joined

the conspiracy, but this is a simple issue that can be resolved once. What would confuse the jury

would be to present this as the most important issue they have to decide. It isn’t.

3. The risk of inconsistent verdicts is less if common issues are only decided once.

The Defendants argue that trying the cases together would result inconsistent verdicts,

turning the analysis of the third Hendrix factor on its head. DE 3402 at 18.

They argue that different cases will be decided similarly if they are tried together, and that this

would be inconsistent. According to the Defendants, none of the cases are similar, and none of

7
Case 0:08-md-01916-KAM Document 3407 Entered on FLSD Docket 05/21/2023 Page 8 of 11

the verdicts should be consistent. They argue that “the predictive value” of the bellwether trials

will be destroyed if common issues and common facts are only tried once, and that these issues

and facts should be determined multiple times in order to achieve consistency. DE 3402 at 18-20.

It makes no sense to argue that ten trials, retrying the same common facts, would produce more

consistent results than one, or a few trials. It might produce a more accurate statistical estimate of

what a jury might do, but the results would be less consistent. The Defendants note that there have

already been inconsistencies in allowing modus operandi evidence to be used in some cases and

not others. DE 3402 at 17. This is another reason to consolidate the cases, to obtain consistent

rulings on the admissibility of similar evidence.

4. The burden on parties, witnesses, and the court will be less if common issues are only
tried once.

The time and expense involved will be less if the common issues are only tried once. No

efficiency will be achieved by allowing the Defendants to argue duress, and their version of their

meeting with Carlos Castaño, over and over again in hundreds, or thousands of cases. The issues

regarding the Individual Defendants, whether their conduct was significant enough to warrant

liability, and when the liability would have accrued, are issues common to all Plaintiffs. There are

about a half dozen Individual Defendants, but many thousands of Plaintiffs. The relationship

between each Individual Defendant and each Plaintiff is the same. The Plaintiffs do not allege that

the Individual Defendants personally participated in any of the murders. They aided and abetted

the murderous campaign of the AUC, with the knowledge that their conduct was illegal and was

resulting in the deaths of thousands of people.

The Defendants also argue that “Six of the cases involve events that occurred before the

AUC was designated by the U.S. Government as a Foreign Terrorist Organization (“FTO”) in

September 2001. Two of the cases involve events that occurred after Chiquita sold its Colombian

8
Case 0:08-md-01916-KAM Document 3407 Entered on FLSD Docket 05/21/2023 Page 9 of 11

operations in June 2004. The events also occurred in different Colombian regions (six in Antioquia

Department, four in Magdelena Department ), and under unique circumstances.” DE 3402 at 14.6

Whether a jury would consider the formal designation of the AUC as a terrorist organization in

September 2001, or the sale of Chiquita’s Colombian operations in June 2004 to be significant

enough facts to change the outcome, are also common issues that could establish a “cutoff date”

of some kind, but are common issues in all of the cases. The Plaintiffs recognize that the

circumstances in Uraba and Magdalena were a little different, and the paramilitary witnesses are

different, but this would at most divide the cases into two groups. If the circumstances are

significantly different, then there could be two sets of common facts about the payments, not facts

that are different in each case and have to be proven dozens, or even thousands of times. The

criminal case included the payments in both Uraba and Magdalena, and there is really not much

difference between them, other than geography and dates. When the AUC was designated as a

terrorist organization, and when the Defendants sold their Colombian farms, are common facts

that only need to be proven once.

5. Judicial economy favors having common witnesses testify only once, or

perhaps a few times in consolidated rounds of bellwether trials.

The Defendants argue that Consolidation of 10 cases into a single trial will make it nearly

impossible for the jury to keep track of critical facts. DE 3402 at 18. This argument can also be

6
The Defendants also argue that Chiquita’s payments began in 1997 and continued until 2004,
while the AUC was not designated by the U.S. government as an FTO until September 10, 2001.
DE 3402 at 16. This is factually incorrect. Numerous AUC witnesses, including Ever Veloza
Garcia, Raul Hasbun, and Salvatore Mancuso have testified that the the Defendants made
payments to the AUC on an ad hoc basis for several years before establishing a front company
with Raul Hasbun to launder the payments. This was summarized by plaintiffs’ counsel Kelsey
Jost-Kreegan at a hearing held on September 10, 2021. The date when the first payments were
made to terrorist groups is another common fact, not unlike the dates when each Individual
Defendant joined the conspiracy. It is not something that needs to be proven over and over again
for each case.

9
Case 0:08-md-01916-KAM Document 3407 Entered on FLSD Docket 05/21/2023 Page 10 of 11

turned around to show the benefits of bifurcated trials. If the common facts are established in the

first trial or trials, subsequent bellwether trials would only be for the purpose of determining

whether the AUC killed the individual. The Defendants argue that “each individual Defendant

started and ended his employment at Chiquita at a different time from other Defendants and the

Court has already ruled that a Defendant may not be held liable for a death that occurred before

his tenure at Chiquita.” Id. This is true, but not as complicated as the Defendants make it out to

be. A table showing the dates of ten murders, and the dates when the liable Individual Defendants

joined the conspiracy would be simple to construct. A dispute over when an Individual Defendant

joined the conspiracy would be a common fact that should be proven once, not ten times by ten

different juries. The finding of a “cutoff date” for each Individual Defendant would not be hard

to determine.

Finally, the Defendants argue that “there are, few, if any, common questions of fact, as

Plaintiffs assert different claims arising during different time periods, at various locations, and

under varying circumstances. Even issues that may, at first glance, appear common, such as

evidence of Chiquita’s extortion payments to the AUC and the effect of those payments, can differ

dramatically depending on the date of death of any particular decedent at the location of death.”

DE 3402 at 19. The Wolf Plaintiffs disagree with this characterization. The central question in

this case is whether the Defendants’ conduct was excused by an alleged extortion demand, and

their claimed duty to protect the lives of their employees. The evidence of Chiquita’s payments to

the AUC is identical in every case.

Conclusion

For the foregoing reasons, the Court should DENY the Defendants’ Motion, and order a

bifurcated trial procedure, with common witnesses testifying in a first trial to determine common

10
Case 0:08-md-01916-KAM Document 3407 Entered on FLSD Docket 05/21/2023 Page 11 of 11

issues, and subsequent trials on liability and damages for particular cases. The parties may simply

be ordered to designate which witnesses will testify about common facts and issues when they

produce their witness lists for the first trial.

Respectfully submitted,

/s/ Paul Wolf

_______________________
Paul Wolf, CO Bar #42107
Attorney for Plaintiffs
P.O. Box 60584
Colorado Springs, CO 80960
(202) 431-6986
paulwolf@yahoo.com
Fax: n/a

May 21, 2023

Certificate of Service
I hereby certify that on this 21st day of May, 2023, I filed the foregoing document with the
Clerk of the Court using the Court's Electronic Case Filing (ECF) system, which will send
electronic notices to all persons entitled to receive them.

/s/ Paul Wolf

________________
Paul Wolf

11