ParfumGigi@aol.com

The 9th U.S. Circuit Court of Appeals' latest removal of notoriously truculent Los Angeles federal Judge Manuel Real could mean a big-money trial for San Francisco plaintiffs lawyer Stephen Cox.

In criticizing Real last week for issuing an opinion basically written by defendant E.I. DuPont de Nemours, a three-judge 9th Circuit panel ordered the case be assigned to a new judge.

That's a small victory for Cox, a partner at Cox & Moyer, who in 1994 discovered that chemical giant DuPont had submitted fraudulent test data in suits brought against it by orchid growers who said the company's popular fungicide Benlate was damaging crops.

Cox is now representing a group of growers who settled suits against DuPont in the 1990s before the revelation that DuPont's lawyers had manipulated test results. The growers claim their settlements were undervalued due to DuPont's fraud.

The case bounced between a Hawaii district court and the 9th Circuit for several years before being transferred to Real -- an L.A. judge brought to Hawaii to temporarily fill a vacancy.

"They send Manny out there, and he torpedoes us," Cox said last week. "It looked like we were on our way to trial, but DuPont filed these summary judgment motions" that Real ended up copying in his order.

Real "adopted the 64-page proposed summary judgment order tendered by DuPont with only a few minor changes. Those changes consisted of additional language complaining about the volume of material involved," wrote 9th Circuit Judge Sidney Thomas for a unanimous three-judge panel that ruled on Dec. 5.

When Cox found that DuPont tried to conceal that Benlate was tainted with a powerful herbicide, he released a mushroom cloud of fungicide litigation.

In one suit, Cox won a $23.8 million verdict for clients in Hawaii. Another suit resulted in sanctions against DuPont for fraud, spawning at least two malpractice suits by growers against Florida plaintiffs lawyer Kevin Malone. A small number of clients claim Malone should have discovered the fraud before entering into settlements with DuPont.

Even though Cox discovered that fraud more than a decade ago, his attempt to sue DuPont for lying in court has been a slow saga, mostly featuring years of intense pretrial haggling.

The case was most recently waylaid in 2002, when someone decided that a good way to handle a quagmire of litigation would be to send Real -- a U.S. district court judge known to lawyers for being brusque and to 9th Circuit judges for being reversed -- to Hawaii.

The reversal of Real's ghost-written order could revitalize Cox's efforts. He's representing Malone's former clients, who want more money than they got in their lowball settlements. Malone, Cox said, will likely testify to the fraud if the case goes to trial. Malone's lawyer in a Hawaii malpractice case, Michael Lilly, did not return a phone message by press time.

The case has already cost DuPont some cash. A federal judge in Georgia dinged the chemical maker and its lawyers at Alston & Bird with $115 million in sanctions in 1995 -- a decision that was later overturned. The company eventually ended up reaching a settlement with the Justice Department that resulted in more than $11 million in fines.

Cox said Friday that while he believes Alston & Bird lawyers were directly involved in the fraud -- in 1994 he obtained notes detailing conversations between scientists and attorneys over how to manipulate data -- he does not plan to name them as defendants.

"We made a tactical decision not to file against the law firm because we wanted to keep the case in Hawaii," he said. Filing against the law firm would likely have meant trying the case in Atlanta and in the 11th U.S. Circuit Court of Appeals.

Even in Hawaii, the case has taken years to inch toward trial. Hawaii U.S. District Judge David Ezra dismissed the case in 1999, agreeing with DuPont that the earlier settlement agreements barred further claims.

But the 9th Circuit reinstated the case, and Ezra asked the Hawaii Supreme Court to clarify several questions of state law before the suit could move forward. Then it was reassigned to Real.

In addition to copying his order from DuPont filings, Real earned the ire of the 9th Circuit panel by flouting the opinion of the Hawaii high court, which Ezra had sought regarding standing issues.

Real, Thomas wrote, "declined to take the Hawaii Supreme Court's opinion into consideration, observing that 'I'm not a trial court of the Hawaii courts of appeal.'"

With favorable decisions from the Hawaii Supreme Court and the 9th Circuit, Cox said he's confident that the suit could now move toward trial, and once there, he argues, it'll be hard to mount a defense, given that the firm has already paid out millions as a result of the fraud.

DuPont might not agree.

"The lower court's ruling was based on pretrial motions concerning technical legal points. The 9th Circuit's reversal speaks to these technical legal points but is not an opinion on the merits of the case," a company spokesman wrote in a Friday e-mail. "If the case proceeds in the trial court, we will aggressively defend against the allegations."

James Bogan III, a partner at Kilpatrick Stockton in Atlanta who represented DuPont in front of the 9th Circuit, said he could not comment on the case.

The 9th Circuit opinion is Living Decisions v. E.I DuPont de Nemours, 05 C.D.O.S. 10160.

Hip hip hurrah! DuPont reminds me of, Dow Chemical to the Tee with both of there lies and toxic products they've hid evidence and data on purposely! GUILTY!