Tomatoland (8 page)

In his early forties at the time of Carlitos’s birth in 2004, Yaffa is widely recognized as one of the top lawyers in the state. He has won many multimillion dollar settlements in cases tried before some of Florida’s toughest judges. One of Yaffa’s competitors in Florida described him to me in an e-mail as “a great lawyer … solid person … integrity … partner in a fabulous law firm … creative … innovative … bright … ethical … the works!”

Yaffa is tall and has the sort of telegenic good looks that would make him a shoo-in to play the role of the leading man if someone ever does a movie version of his life as a crusading attorney. His short dark hair is brushed back and moussed neatly in place, and I caught the merest whiff of cologne. His handsome face is tempered by a kind of Midwestern earnestness. (He’s actually a Virginia native.) Yaffa establishes an instant rapport, speaking with a soft, unwavering voice. When I asked him why he chose to take on such a long shot case as that of Carlitos Candelario, he eyed me the way he might stare at an uncooperative witness and said, “I see a lot in my work. But when I see a child or a family that has been harmed and in distress, I don’t need a whole lot more motivation than that.”

Initially, Yaffa could hardly believe what his friend had told him. He needed to see for himself and to talk to the child’s parents. Were they people who would come across as credible? Would a jury relate to them? Would they even want his help? Leaving behind his usual car, a new BMW, to avoid drawing attention to himself, he got in the road-weary Chevy Suburban reserved for weekend fishing outings and trips to the beach with his kids and drove from his Miami office across miles of uninhabited saw grass prairies in the Everglades to the shabby two-bedroom trailer that the young couple and their tragically deformed child shared with seven other migrants. When Yaffa knocked on the door, Herrera answered. He was struck by the fact that the petite, round-faced woman was barely older than a child herself. All the men who lived in the trailer were in the fields. Carlitos was propped up in a baby seat. Strips of drying meat hung from a
clothesline stretched across the living room, and the humid air was rank and pungent. Flies buzzed everywhere. When Carlitos began fussing, Herrera took the six-month-old baby out of the seat and laid him on the floor. An orphaned puppy that the trailer’s residents had adopted came bouncing around, and the child watched it, smiling and cooing. The puppy yipped, pounced, and started nipping at the baby. Carlitos began to scream, and Herrera rushed to pick him up. Yaffa was powerfully affected. The child, who did not even have the ability to flick away a fly or push back against a puppy, faced a lifetime of need. “The pesticides got into her system and affected this child that was forming and lo and behold, he ends up being born with no arms and no legs,” he told me.

Speaking in Spanish, he tried to draw out Herrera, who spoke very little Spanish herself. As is the case of many migrant farmworkers, her first language and the one she was most comfortable communicating in was a native Indian dialect. Yaffa explained that a social worker had contacted him, and he was there for one reason—to help her. He told Herrera that there was no pressure for her to work with him. As is the norm for lawyers in his field, he would bear all the legal expenses himself and be paid only by taking a percentage of anything they won.

When Herrera finally nodded her head, Yaffa vowed that he would do everything in his power to help his new client. But even a lawyer of his track record and courtroom acumen had his work cut out for him. Because of all the nearly infinite variables—heredity, exposure to chemicals at other job sites, possible smoking or drug abuse, environmental factors—cases linking pesticide exposure to birth defects are notoriously hard to prove.

Instead of pursuing the conventional approach by trying to determine the chemical that caused the damage and suing the company that made it, Yaffa decided to do something he had never done: He would try to get compensation from the corporate farm where Herrera had worked. In essence, he would try the entire modern agricultural industry and the chemical-based philosophy on which it is founded.

Florida calls itself the Sunshine State. A more accurate moniker might be the Pesticide State.
In terms of raw quantities
, Florida is awash in toxic chemicals, even compared to other states where agriculture is a lynchpin of the economy. In California, for instance, where the number of acres dedicated to fresh tomato production was virtually the same as in Florida, slightly fewer than one million pounds of insecticides, fungicides, and herbicides were used on those crops in 2006. During the same year, Florida’s tomato farmers applied eight times as much: nearly eight million pounds.

Despite all those chemicals being spread across its fields, Florida has an abysmal record when it comes to protecting its farmworkers,
employing only about fifty inspectors
(ten were hastily added following the media furor surrounding the birth of the deformed Immokalee babies) compared to California’s 350. Florida officials take a what-we-don’t-know-won’t-hurt-us approach to enforcing pesticide
application laws and recording instances of farmworkers being exposed to chemicals while on the job. In 2006, a typical year, the Florida Department of Health reported that there were only two definite or probable cases of harmful
pesticide exposure among its migrant and seasonal agricultural
workforce of roughly 400,000
men and women. Compare that to California, where two hundred cases were recorded. Although California has three times as many laborers on its farms as Florida, that is not enough to account for the hundredfold difference of reported cases between the two states. According to
Paula DiGrigoli of the
Collier County Health Department, whose district includes the Immokalee area—where tens of thousands of laborers work in citrus and tomato fields each winter—between 2006 and mid-2010 there were no reported cases of pesticide exposure in her region. The likely reason is that regulators in Florida simply looked the other way.

In both Florida and California, physicians are required to report cases of pesticide
poisoning. But in Florida that law is unenforced and ignored. The director of the hospital where the three deformed
Immokalee babies were born said that he was not even aware that such a law was on the books. He was by no means alone. In 2000,
Together for Agricultural Safety
, a group working to reduce pesticide exposure, revealed that most Florida health care workers did not know that they were supposed to report cases of suspected and confirmed pesticide poisoning. California, meanwhile, receives thousands of notifications every year. The reason for the discrepancy between the two states cannot be explained by the relative honesty of doctors in the two states nor even by Florida’s less-than-robust enforcement policies. In California, a doctor who is treating someone exposed to pesticides must file a report to the state in order to be paid. Because of differences in workers compensation policies, Florida doctors do not have to file similar reports to get reimbursed. With no incentive, it’s easy to see how an overworked Florida practitioner might not get around to filling out yet another government form.

When instances of pesticide misuse do surface in Florida, penalties are rarely levied against the farms that are responsible. Between 1993 and 2003,
less than 8 percent
of the
violations of pesticide regulations in Florida resulted in fines. Even when they did, the amounts were miniscule enough for farmers to consider them as just part of the cost of doing business. After the birth of the deformed babies in Immokalee, the state government did launch an investigation into the use of pesticides by Ag-Mart. Agents
leveled eighty-eight counts
against the firm, fining it $111,200. Ag-Mart denied wrongdoing, and a judge later dismissed seventy-five of the charges (ten had been resolved earlier) and reduced the fine to $8,400.

In Florida, the job of enforcing the U.S. Environmental Protection Agency Worker Protection Standard falls to the
Florida Department of Agriculture and Consumer Services, whose mandate is also to promote Florida’s agricultural sector. Those standards consist mainly of such common sense requirements as conducting pesticide
training programs, delaying workers’ entry into sprayed fields for the legally required period after applications, insisting that workers use
protective equipment under certain circumstances, posting warning signs around sprayed fields, and immediately transporting workers who have been exposed to chemicals to medical facilities—hardly unreasonable given that America’s
agricultural workers are more likely to be poisoned
by pesticides on the job than those in any other occupation.

A scathing portrait
of the Florida Department of Agriculture and Consumer Services’s poor or nonexistent
pesticide-
abuse investigation and
enforcement program emerges in the conclusions of
Shelly Davis and
Rebecca Schleifer of the
Farmworker Justice Fund in Washington, DC:

• The state repeatedly failed to find a causal connection between pesticide exposure and injuries suffered by farmworkers. In only two instances out of the forty-six complaints the researchers investigated over a five-year period did it conclude that pesticide exposure had led to worker injury. One of these would seem to have been an open-and-shut case: One worker passed out after applying an extremely toxic pesticide. In the other case, a grower admitted placing unprotected workers in a pesticide-treated field during the quarantine period.
  
• The state found regulatory violations in thirty-one instances but issued only two fines.
  
• The state failed to adequately investigate poisoning complaints even when a farmworker was seriously injured or killed. It systematically failed to interview coworkers or other eyewitnesses outside of the presence of supervisory personnel and with adequate translators, failed to obtain relevant medical records, routinely accepted uncorroborated employer claims of compliance, used checklists as a substitute for thorough on-site inspection, and ignored evidence of employer retaliation.
  

The authors concluded, “Only a completely revamped, enforcement-oriented system can assure farmworkers that their health
will be protected and that compliance with the Worker Protection Standard will be achieved.” A labor lawyer summed the situation up more colloquially as “a classic case of the fox guarding the henhouse.”

But even a completely revamped system won’t deal with one of the biggest problems with enforcing pesticide regulations in the state: The vast majority of the workers who are exposed to pesticides on the job do not report the incidents. Lacking medical insurance, pickers are often reluctant to go to doctors because of the cost, and without legal documentation, they go to great lengths to avoid speaking to government officials. Ignorance also plays a role. Workers often are not taught how to identify the initial symptoms of
pesticide exposure, which can be similar to those of a chest cold, the stomach flu, a hangover, or a rash. Others are embarrassed by not being macho enough. “Come on, you’re a man. You can take it,” one boss told a worker I spoke with after he complained of pains in his chest. And often, the pickers are threatened with dismissal by the labor contractors if they report being sprayed or take time off from work to recover.

Guadalupe Gonzales III
learned all about that. On September 12, 2005, at about seven o’clock in the morning, Gonzales, a twenty-nine-year-old laborer, arrived at work on a farm operated by
Thomas Produce Company. Based in Boca Raton, Thomas farmed thirteen thousand acres, making it one of the biggest players in the Florida produce business at the time. Like many Florida farmworkers, Gonzales did not report directly to the managers of the large packing company but to a contractor, or “crew boss,” named
Raul Humberto Ruiz. Gonzales’s job that day was to apply methyl bromide, the potent soil fumigant. In humans, methyl bromide can damage the lungs, throat, eyes, skin, kidneys, and central nervous system and has been linked to birth defects and cancer. It can trigger pneumonia, heart problems, and in some cases, death.

The
U.S. Environmental Protection Agency classifies methyl bromide as a “
Category I Acute Toxin,” the most deadly category. In addition to warning users to wear long pants and long-sleeved shirts, the
label instructions on the chemical’s container read, “All persons working with this fumigant must be knowledgeable about the hazards, and trained in the use of the required respirator equipment and detector devices, emergency procedures and proper use of the equipment.”

Gonzales, who had been on the job for only two weeks, claimed that he had received no training. In an affidavit, he noted that he was not even told the name of the pesticide he was going to be working with that morning, and he was wearing a short-sleeved shirt. By eleven o’clock, he detected a strong smell. His head started aching, his eyes stung, and his chest was wracked with a severe pain. But when he reported his symptoms to his crew leader, instead of being taken to a medical facility, Gonzales was told to sit in a pickup truck with the air conditioning blasting. He felt better after a few minutes and returned to work, but that evening his condition worsened, and he went to the emergency room at the Hendry Regional Medical Center, where he received treatment. When he went back to the fields two days later, his symptoms returned, so he filed for worker’s compensation. Ultimately, the state fined the company $5,000 for pesticide-handling violations, a sum that was reduced to $3,500 on appeal, a slap on the wrist for such a large operation. According to Gonzales, the second time he reported symptoms of chemical poisoning, his boss said, “If you keep feeling bad, I can’t keep you as part of the crew anymore,” and fired him. Ruiz has denied the claim, but whatever the reason, the thanks that Gonzales got for following official protocol was that he lost his job.

When growers supply workers with the required pesticide training sessions, the results can be almost farcical. I met
Victor Grimaldi one morning in the Immokalee offices of the
Farmworker Association of Florida, where he is a member of the board of directors. Among other activities, the Farmworker Association tries to educate pickers about the potential dangers of handling pesticides. Grimaldi, a small graying man, who spent twenty years in the fields before retiring, recalled his initial encounter with pesticide-
handling instructions. Speaking through a translator, he told me, “I was taken into the office,
and the first thing the boss said was, ‘Sign this!’ It was a document written in English, which I don’t read or speak, but I needed work, so what was I going to say?” Grimaldi was then shown a pesticide-handling safety video—also in English—but from the graphics he was able to understand a few snippets of what was going on. Although training is now conducted in Spanish, many workers who speak Mixtec and other Amerindian dialects cannot understand that language, either. Once “trained,” Grimaldi was given a backpack-mounted tank full of pesticide, dispatched into a field, and told to start spraying a row of tomatoes. As he worked along, he came near a group of pickers. He abandoned the row they were working in and proceeded to the next. The crew boss came up and said, “Why did you move?” Grimaldi answered that he had just seen a video showing that spraying near people was against the law. “I’m the law out here,” the subcontractor said, and ordered Grimaldi back to the row with the pickers.