U.S. Unjustified Campaign To Discredit Cuba’s Foreign Medical Mission Program 

Over the last several years, the U.S. has been waging a campaign seeking to discredit Cuba’s foreign medical mission program. This campaign includes the State Department’s annual reports on human trafficking that have alleged Cuba has been engaged in illegal forced labor of some of its medical professionals in these programs. Another part was the recent decision to deny U.S. visas to Cuban officials directing the medical mission program.[1] The most recent measure has been the U.S. Agency for International Development (USAID’s) soliciting bids to conduct research and analysis of evidence regarding the forced labor allegation. Some Congressmen also have suggested reactivation of a U.S. program providing U.S. parole visas for such medical professionals to be admitted to the U.S.[2] Unsurprisingly Cuba denies these allegations and condemns these U.S. programs. (Emphases added.)

Here we will look at key parts of this trafficking in persons report, the recent USAID solicitation of bids for research and analysis, Cuba’s response to that solicitation and a demonstration why the U.S. allegations are specious.

U.S. 2019 Trafficking in Persons Report [3]

The most recent such report, which was issued on June 20, 2019, said the following, in part:

  • In November 2018, Cuban healthcare workers filed a class action in the U.S. District Court Southern District of Florida under the Trafficking Victims Protection and the Racketeering Influenced and Corrupt Organization Acts alleging the Cuban government profited from the export of healthcare professionals; the case remains pending.[4] In Brazil, the Cuban government collected revenue for each professional’s services and paid the worker a fraction of the revenue depositing a large percentage of the worker’s wages in an account in Cuba only accessible upon completion of the mission and return to Cuba. . . . Some participants in foreign medical missions as well as other sources allege Cuban officials force or coerce participation in the program; the government has stated the postings are voluntary, and some participants also have stated the postings are voluntary and well-paid compared to jobs within Cuba. Observers report the government does not inform participants of the terms of their contracts, making them more vulnerable to forced labor. The Cuban government acknowledges that it withholds passports of overseas medical personnel in Venezuela; the government provided identification cards to such personnel. Some Cuban medical personnel claim they work long hours without rest and face substandard working and living conditions in some countries, including a lack of hygienic conditions and privacy. Observers note Cuban authorities coerced some participants to remain in the program, including by withholding their passports, restricting their movement, using “minders” to conduct surveillance of participants outside of work, threatening to revoke their medical licenses, retaliate against their family members in Cuba if participants leave the program, or impose criminal penalties, exile, and family separation if participants do not return to Cuba as directed by government supervisors.” (Emphases added.)

USAID’s Solicitation of Research Bids [5]

On August 12, 2019, the U.S. Agency for International Development (USAID) announced that it was offering up to $3 million to organizations that would “investigate, collect, and analyze information related to human rights violations – including forced labor – of Cuban medical personnel exported overseas.”

USAID purported to justify this effort by alleging, “The Cuban regime exploits its medical professionals, teachers and other workers, using them to buy international financial and political support and keep its struggling economy afloat, while pocketing the majority of these workers’ salaries and subjecting them to poor living conditions, constant surveillance, and threatening those who wish to leave their mission. At the same time, Cubans on the island struggle to find adequate healthcare and other basic services while the regime touts the false narrative that it has the best medical care in the world.” (Emphasis added.)

In addition, USAID said, “the information collected should also document the effects of these practices on Cubans on the island. The data collected would be used for advocacy within Cuba, in Latin America and with regional and international bodies, such as the Inter-American Commission on Human Rights (IACHR) and the United Nations Human Rights Council (UNHRC) in an effort to pressure the Cuban regime to improve the living conditions of doctors and other workers, and promote greater respect for labor and other basic human rights for all Cuban citizens.”

Cuba’s Response[6]

In an August 30 Declaration, the Cuba Foreign Ministry “energetically denounces and condemns the recent aggression of the government of the United States against Cuba via a USAID program designed to fund actions and information searches to discredit and sabotage the international cooperation being provided by Cuba in the health area in dozens of countries for the benefit of millions of persons.  This is an endeavor added to the crude pressures exercised against a number of governments in order to obstruct Cuban cooperation and to the earlier efforts for the same purpose such as the special ‘parole’ program designed to steal human resources trained in Cuba.”

“The heart of this immoral calumny consists of alleging, with no factual foundations whatsoever, that Cuba is involved in the traffic of persons or in the practice of slavery, and wishing to degrade the meritorious work that hundreds of thousands of Cuban health professionals and technicians are voluntarily undertaking, and have been undertaking, throughout history, in a number of countries, especially in the Third World.”

This is “an affront to the bilateral and intergovernmental cooperation programs, all lawfully set up between the Cuban Government and the governments of dozens of countries, which have been consistent with the [U.N.] guidelines referring to South–South cooperation and which have responded to the health requirements that those same governments have defined in a sovereign manner.”

“This is an attack against the efforts in solidarity which have received the acknowledgement of the international community and the specific praise from the most senior officials of the United Nations, the World Health Organization and the Pan-American Health Organization.”

“These lies reveal the low morality of the [U.S.] government and its politicians who devoted themselves to the business of aggression against Cuba.  The campaign has millions of dollars of funds and the complicity of a number of the mass media giants and, particularly, of unscrupulous reporters who have sacrificed their so-called impartiality and objectivity in the service of the political interests of the [U.S.] government.”

“For decades . . . in those nations having more unfavorable economic conditions, that cooperation has been provided, and is being provided, as a gesture of solidarity; its expenses are covered by Cuba practically in their entirety. Likewise, and following the [U.N.] conceptions on cooperation between developing countries, this is being offered in various nations on the basis of complementarity and partial compensation for services rendered.”

Cuba has provided “self-sacrificing and humanist professionals ready and willing to work of their own free will in the most difficult of conditions, and of the ideas of health coverage that years of successful experience has permitted us to build up.”

“The Cuban technicians and professionals participating in those programs do so in an absolutely free and voluntary manner.  While serving their missions, they continue to be paid their entire Cuban salaries and they also receive stipends from the destination countries, along with other forms of compensation.”

“In cases where Cuba receives compensation for the cooperation being provided, those . . . [countries] distinguish themselves by contributing a highly valued, fair and totally lawful amount for the funding, sustainability and development of the massive and free health system that is accessible to each and every Cuban, as well as for the cooperation programs that are carried into many parts of the world.”

“Access to health is a human right.  The United States is committing a crime when it wishes to deny that or to obstruct it for political reasons or as aggression.”

This Cuban criticism was echoed in an August 31 tweet by President Miguel Diaz-Canel, who said, “The carelessness, the lie, the perversity of the empire crumble before the moral height accumulated by the dignified history of the Cuban missions in health.”

The Specious U.S. Allegation of Illegal Forced Labor [7]

The contention that Cuban medical personnel in Cuba’s foreign medical mission program are engaged in illegal forced labor is meritless for at least the following reasons:

  • Medical education in Cuba is free and requiring medical graduates to pay the country back by such participation seems entirely appropriate and may indeed be a contractual or quasi-contractual obligation.
  • International medical aid has been a significant part of the Cuban people’s tradition of international solidarity, and some Cuban medical personnel have said that such service had a major positive impact on their lives and medical careers.
  • The relevant standard for evaluating the allegationthat Cuba’s international medical mission program violates international law is the International Labor Organization’s Forced Labour Convention, 1930.
  • That multilateral Convention or treaty provides that “for the purposes of this Convention, the term forced or compulsory labour shall not include . . . any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country.” (Art. 2(2)(b).) (Emphasis added.)
  • Although it is true that the Cuban government receives direct payment from other countries for the foreign medical mission program and that the Cuban government retains some of those payments before paying the Cuban medical professionals, it also is true that such payments to those professionals exceed what they would have earned for similar services in Cuba. In addition, some of the payments to the Cuban professionals are deposited in Cuban accounts only accessible upon their completion of service and return to Cuba. But such practices do not constitute proof of forced labor.
  • While it also is true that some Cuban medical professionals who have participated or are now participating in the foreign medical mission program allege that they were coerced into doing so, the report indicates that the Cuban government and other participants deny that allegation and that there has been no independent adjudication of that allegation. (Emphases added.)
  • Also relevant to this allegation is Cuban medical professionals’ undoubted awareness of the significantly higher compensation they potentially could obtain if they were able to relocate in the U.S. or certain other countries.
  • A detailed study by Indiana State University’s Emeritus Professor of International Politics and Latin America, Dr. H. Michael Erisman, has rejected this accusation of forced labor.

The latest report on Cuba also fails to mention that the U.S. and Cuba apparently had friendly bilateral discussions about other human trafficking issues during the Obama Administration (2015 through January 17, 2017) and the Trump Administration (2017-2018).

The hypocrisy of the State Department’s repeated assertion of this claim of forced labor without recognizing the ILO’s Forced Labour Convention is shown by Secretary of State Pompeo’s congratulating the ILO on its centennial anniversary only one day after the release of the 2019 Trafficking in Persons Report. The Secretary said:

  • “The dignitaries that convened in Paris in 1919 to end the Great War knew that any lasting peace needed to be rooted in the protection of individual rights, including the rights of workers and employers to associate freely and bargain collectively. “
  • The United States proudly hosted the first International Labor Conference in 1919 and the “war-time conference that enshrined the ILO’s enduring founding principles and aims in the Declaration of Philadelphia. As strong supporters of the ILO and its mission, we reflect on the important role played by Americans to create and sustain this organization, including David Morse, who served as ILO Director-General for 22 years, and under whose leadership the ILO won the Nobel Peace Prize.”
  • “As the ILO enters its second century pursuing objectives critical to economic prosperity and security around the world, the United States recommits itself to advancing the rights of workers globally.

Another rebuttal of the U.S. allegations about the medical mission program recently was provided by a U.S. citizen, Dr. Graham Sowa, who has a Cuban medical degree and who now is a resident in internal medicine in a Florida hospital. He did not participate in the Cuban medical mission program, but his Cuban friends who are now physicians have done so and who totally reject this allegation. Sowa said, ““Cuba says they want to provide humanity with medical care. It is their commitment toward international solidarity.”

Conclusion

No matter how many times the U.S. alleges that Cuba’s foreign medical mission program engages in illegal forced labor does not make it so. The U.S. has not even publicly submitted an attempted legal justification for these allegations.  The U.S. is wasting money on this specious claim.

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[1]  New U.S. Government Hostility Towards Cuba’s Medical Mission Program, dwkcommentaries.com (Aug. 14, 2019)

[2] Senators Rubio and Menendez Call for Restoring U.S. Parole Program for Cuban Doctors, dwkcommentaries.com (Jan. 11, 2019). See also posts listed n the “Cuban Medical Personnel & U.S.” section of List of Posts to dwkcommentaries—Topical: CUBA.

[3] State Department Unjustly Downgrades Cuba in Annual Report on Human Trafficking, dwkcommentaries.com (June 22, 2019).

[4]  Pais, Health Organization Accused of Trafficking Doctors to Brazil, Courthouse News Service (Dec. 3, 2018)  The class action complaint, which was filed November 30, 2018, alleges that the Pan American Health Organization collected over $75 million since 2013 by enabling and managing the illegal trafficking of Cuban medical professionals in violation of the Trafficking Victims Protection Act and the Racketeering Influenced and Corrupt Organizations Act. Nothing of substance has happened so far in this case. The last docket entry was on July 2, 2019, for an order setting a hearing on July 18, 2019, for Pan American Health’s objections to and appeal from a magistrate judge’s order denying its motion to transfer the case to the U.S. District Court for the District of Columbia. (Civil Docket, Rodriguez v. Pan American Health Org., Case #: 1:18-cv-24995-DPG (Aug. 30, 2019).

[5] Eaton, USAID plans to spend up to $3 million to investigate Cuban doctors, Cuba Solidarity Campaign (Aug. 12, 2019).

[6] Cuba Foreign Ministry, Statement: The Government of the United States Is Earmarking Millions of Dollars To Obstruct Cuban Medical Cooperation (Aug. 30, 2019); The regime blames the US for complaints about the exploitation of Cuban doctors, Diario de Cuba (Aug. 29, 2019); Diaz-Canel described the ‘attacks’ and the ‘attacks by the US on the slae of medical services, Diario de Cuba (Sept. 1, 2019).

[7] State Department Unjustly Downgrades Cuba in Annual Report on Human Trafficking, dwkcommentaries.com (June 22, 2019); Guzzo, Are Cuban physicians human trafficking victims? No way, says Brandon doctor with Havana degree, Tampa Bay Times (Aug. 29, 2019).

 

 

Litigation Over an Early Compact Fluorescent Lamp

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In 1988 the Faegre & Benson law firm of Minneapolis was retained to defend the Phillips Lighting Company [1] in a civil lawsuit brought in U.S. District Court for the District of Minnesota, and I was assigned as the lead attorney for the case.[2]

The plaintiff was Ibac Industries, Inc. of Princeton, Minnesota, a small town about 50 miles north of Minneapolis. It had been working at manufacturing a plastic cover for an early Compact Fluorescent Lamp (CFL) designed by Phillips.[3]

The complaint asserted claims for alleged breach of a joint venture agreement; violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), which if successful entitled the plaintiff to treble the amount of actual damages plus attorneys’ fees; fraud; negligent misrepresentation; and four other theories. I do not recall what the alleged damages were except that they were significant.

Before trial on behalf of Phillips I successfully moved to dismiss the RICO and joint venture claims for failure to state a claim on which relief could be granted and for summary judgment on another claim. I also was successful in resisting the plaintiff’s motion for leave to amend the complaint to add a claim for punitive damages.

As a result, we went to trial in December 1989 on the fraud, negligent misrepresentation and three other claims. At the end of the evidence, the court granted Philips’ motion for directed verdict on the three other claims, leaving only two for the jury to decide.

The jury returned a special verdict for Phillips on the fraud claim. Thus, the only remaining claim for resolution by the jury’s special verdict was negligent misrepresentation.

Under the Minnesota common law of negligent misrepresentation, at the time, as I recall, a person who, through his or her profession, business, or employment, or in any transaction in which he or she has a pecuniary interest, fails to exercise reasonable care or competence in obtaining or communicating information and thereby supplies false information while guiding others in their business transactions, is liable for any pecuniary loss caused by the claimant’s justifiable reliance on the information. However, such a claim is subject to the comparative fault doctrine, whereby the plaintiff can recover only the percentage of fault attributable to the defendant, and if the plaintiff’s fault exceeds the defendant’s, the plaintiff can recover nothing.

To prevail on a negligent misrepresentation claim under Minnesota law at the time, as I recall, a plaintiff must establish that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant supplied false information to the plaintiff; (3) the plaintiff justifiably relied upon the information; and (4) the defendant failed to exercise reasonable care in communicating the information; and (5) damages.

Even though, as I recall, Phillips contested all of these elements, the jury’s special verdict found such negligent misrepresentation and assigned slightly greater responsibility to Phillips (something like 60%) than to Ibac (something like 40%). This was good news for Phillips in that Ibac’s recovery of its damages would be reduced by the percentage of responsibility assigned to Ibac. This was bad news for Phillips, on the other hand, in that Ibac was not shut out from recovering anything. At the time I was disappointed after coming so close to “zeroing out” the plaintiff.

The trail was bifurcated between liability and damages, and after the above jury determinations on liability and before a trial before the same jury on damages, there was a settlement in January 1990 with Phillips paying Ibac a sum of money, the amount of which I do not recall.

The bifurcation of the trial provides insights about the life of the litigator/trial lawyer and being subject to the demands or whims of the court.

Judge Edward J. Devitt
Judge                Edward J. Devitt

As I recall, U.S. Senior District Court Judge Edward J. Devitt, the presiding judge,[4] called a pretrial conference in early December 1989 and much to my surprise and consternation and without any prior notice, set the trial to commence just before Christmas, only a few weeks away. Perhaps this was the Judge’s stratagem to try to force a settlement because of all the difficulties this short notice would present to the parties and their attorneys.

Unfortunately my wife and I already had paid for a vacation to Costa Rica for later that month. When I objected to this date for the trial on that basis and on the difficulties of having my client’s witnesses come from Boston on short notice during the holiday season, Judge Devitt accommodated me by bifurcating the trial between liability and damages and only conducting the liability trial before I was scheduled to go on vacation.

While I was in Costa Rica, I received news from my law firm that the plaintiff was increasing its alleged damages. This forced me to leave Costa Rica early when I was not feeling well. I well remember leaving La Selva Research Station in the rain forest where we were staying to catch a local bus on a country road for a long ride to the capital city of San Jose. When the bus came over the mountain, I saw the widespread lights of the city looking as large as Los Angeles. That really impressed upon me the lure of cities across the world to people living in the countryside.

The opposing counsel for Ibac was Mark N. Stageberg, an able, very experienced civil trial lawyer. He discusses this very case, I assume based on recollection, in his memoir, Win Some Lose Some: The Trials and Tribulations of a Trail Lawyer (pp. 94-96). [5]

I have no disagreements with what Stageberg said about this case, except for the following:

  • First, he did not mention his losses on the previously mentioned pretrial motions that significantly reduced the potential of his case.
  • Second, he says his client had “developed and sold a new prototype fluorescent lightbulb to . . . Phillips.” According to my firm recollection, that is absolutely erroneous because the bulb, to my recollection, was designed by Phillips, especially its crucial electronics parts, and Ibac was only retained to manufacture the plastic cover according to Phillips’ specifications
  • Third, I do not recall Stageberg’s account of the so-called “smoking gun” document from Phillips’ files, and I certainly do not believe that this document or any other evidence proved that the Phillips’ witnesses were lying, as Stageberg claims. Indeed, the jury’s rejection of the fraud claim undercuts Stageberg’s interpretation or recollection of this point.
  • Fourth, contrary to what Stageberg said, the jury did not determine that Phillips had “breached its contract and had committed fraudulent misrepresentations” with Ibac. As previously stated, the breach of contract claim was dismissed on motion or on directed verdict, and the jury determined that there was no fraudulent misrepresentation.
  • Fifth, we will never know that would have happened if Ibac had started the whole process with a more reasonable demand.

Nevertheless, I have to admit that after all of the skirmishing, his client walked away with a substantial settlement amount (minus attorneys’ contingent fee).

I also note that Stageberg expressed his consternation in another case when he was subjected to a trial court’s unexpectedly setting a trial date that interfered with his plans to do other things. (Win Some Lose Some at 189-192).

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[1] Phillips was part of Koninklijke Philips N.V. (Royal Philips, commonly known as Philips), a Dutch diversified technology company headquartered in Amstrerdam and one of the largest companies in the world.

[2] This post is based upon my personal recollection and on my December 1989 and 1990 descriptions of the status of this case in my annual reports to the partner in charge of my group at Faegre & Benson, which I am confident accurately reflected what had happened in the case. I do not have any documents from the case. I am confident that Faegre’s files for a 24-year-old closed case were destroyed a long time ago under regular document-retention guidelines. Finally the court’s files for the case (# 3:88cv-00482-EJD) have been sent to storage in a remote federal facility.

[3] In 1980 Phillips introduced its model SL, which was a screw-in lamp with integral magnetic ballast. The lamp used a folded T4 tube, stable tri-color phosphors, and a mercury amalgam. This was the first successful screw-in replacement for an incandescent lamp. All of this, as I recall, was before any involvement of Ibac with respect to the plastic cover.

[4] In 1989 Judge Devitt at age 78 was a very eminent federal jurist. He had served as one of Minnesota’s federal District Judges, 1954-1958, as its Chief Judge, 1959-1981, and as one of its Senior Judges since 1982. He continued in that capacity until his death in 1992. Before his federal judicial career, he served one term in the U.S. House of Representatives.

[5] I plan to write a general review of the memoir after I finish reading it.