Legal Disclaimer: Although Dr. Mitchell is a former law intern with trial and trial preparation experience at both the state and federal level, this article does not constitute legal advice of any kind. This is merely the opinion of the author based on a body of evidence that includes well-known and published legal facts, scholarly writings of legal experts, and the current industry trends towards litigating claims of negliglence relating to toxic pesticide applications. This section will be brief in that more work needs to be done to establish a clear set of guidelines for legal claims. We are fighting to get those guidelines established.
Now, the Federal Insecticide Fungicide Rodenticide Act (FIFRA) gives toxic pesticide makers somewhat of a shield against claims regarding improper labeling or failures to disclose inert ingredients. However, that shield has recently lost its deflective power. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) provides for federal regulation of pesticide distribution, sale, and use. All pesticides distributed or sold in the United States must be registered (licensed) by EPA. Before EPA may register a pesticide under FIFRA, the applicant must show, among other things, that using the pesticide according to specifications "will not generally cause unreasonable adverse effects on the environment.'
In my professional opinion, the language "will not generally cause unreasonable adverse effects on the environment," puts an end to toxic synthetic pesticides. The body of medical evidence, the hundreds of thousands of pesticide related cancer deaths, the discovery that pesticides cause ADHD and other diseases makes every synthetic pesticide unfit for use in the United States - according to federal law. The financial interests of the pesticide manufacturers are moot - they can make non-toxic pesticides instead of toxic poisons. FIFRA defines the term ''unreasonable adverse effects on the environment'' to mean: ''(1) any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide, or (2) a human dietary risk from residues that result from a use of a pesticide in or on any food inconsistent with the standard under section 408 of the Federal Food, Drug, and Cosmetic Act.'
The facts are overwhelming. First, breast cancer is an "unreasonable risk" resulting from chronic exposure to toxic synthetic pesticide poisons in the environment. The cost to treat breast cancer in the United States was $104.1 billion dollars in medical expenditures in 2006 (National Cancer Institute - Cancer Trends Progress Report 2009/2010 Update - Cost of Cancer Care). This burden of care shifts to the taxpayer in the form of higher taxes and increased medical insurance premiums. In my opinion, the manufacturing, sale, and application of toxic synthetic pesticides is the biggest healthcare fraud in U.S. history.
Next, on May 17. 2010, in a national news story, organophosphate pesticide residue was blamed without diminution for ADHD in our children. Thus, toxic synthetic pesticides pose a dangerous and life-altering dietary risk from the residues left behind on food and those residues that permeate the outer protective skin, hull, or rind. Additionally, unless specifically stated on the pesticide label, multiple toxins may be applied to the same food crop in the same growing season, thereby doubling or tripling the amount of pesticides on the food, but without increasing the acceptable tolerances of any single pesticide. The EPA has no protective measures in place to prevent excessive pesticide exposure from multiple pesticide residues. Pesticide manufacturers ensure that all U.S. citizens ingest a daily dose of poison without our knowledge or consent, while the EPA sets so-called acceptable tolerances for individual pesticides ignoring the cummulative residues on our food.
The law is clear on many subjects, the first being that you have a right to know when you have been placed in harms way by a third party. This usually finds itself in product liability claims. FIFRA had placed a shield around toxin makers until several recent court decisions proved that a claim for negligence was not a claim relating to labeling.
It is no secret that toxic synthetic pesticides are "ultra hazardous." Even the Texas Department of Agriculture agrees. The courts indicated that toxic pesticides posed unnecessary risks and therefore the application of the pesticides, regardless of the applicators strict compliance with label directions, was tantamount to negligence for having sprayed the toxin in the first place. Thank heaven! The court decisions open the doors for consumers to fight back and get the toxic pesticides out of our homes, off our store shelves, out of our schools, away from our children, and off our food.
We help you cancel contracts with companies that have applied these toxins to your home - regardless of the amount of toxin applied. Backed by over 300 medical and university resources, there are no arguments to be made and the toxin spraying pest control company has no defense. The fact is, any toxin-spraying pest control company dumb enough to argue that they had the right to poison you whether or not they disclosed the fact that they were going to poison you with a certain toxin, or that believes signing a contract to potentially harm yourself or your family through chronic exposure to poison is valid, or that objects to our informing you that you are being chronically subjected to possible carcinogens inside your home as a result of pesticide spraying, should be out of business and probably jailed.
In another area of the website, I briefly discussed why I believe that applying toxic pesticides to your property and especially without full medical disclosure is a crime and not a civil tort. Let me explain my reasoning further. According to FIFRA, the exposure to the toxin is clearly an unreasonable risk to you and the environment. The evidence is replete, accurate and impossible to refute. In that spirit, the application of a toxic synthetic pesticide to your home or property is a violation of federal law - FIFRA.
Applying these toxins to your home is negligent. Pesticide companies that spray these toxins are responsible for knowing or least familiarizing themselves with the effects of the toxins on their customers. There are no tenets in federal or state law that lessens the liability of the licensed professionals for acts clearly within the scope of the license itself. The label is the law. On the label, the words "Caution, Warning, Danger, or Poison" may appear. The amount of disclosure legally required to be free from claims of negligence amounts to a settlement agreement with the customer before the pesticide is ever applied. Applying the pesticide makes the pest control company culpable, and both the pesticide manufacturer and the EPA complicit in all pesticide related deaths.
According to the State of Texas, Texas A & M - Texas Pesticide Applicator General at page 269;
"Pesticide applications is considered very dangerous
or, in legal terms,
"ultra-hazardous." As a result, the applicator
may be liable for any injury to a person caused by
pesticide. The injured person must prove only that
he or she was not negligent and did not assume the
risk of pesticide exposure."
I find the statement "prove only that he or she was not negligent" to be a legal landmine for toxin-spraying pest control companies. The fact that you didn't spray that toxic garbage yourself is a bombshell against an army of toxin-sprayers for which there can be no retreat! The majority of residential pesticide applications occur in the absence of the homeowner. By the time a homeowner returns from work, the pesticide is usually dry. Thus, contact with the toxin is inevitable unless the technician visibly marked every location - every square inch of your property on which he or she applied the toxins. In the case of maintenance services, that entire exterior and interior of the home, all the shrubs, and even the lawn could have been contaminated by spray. Thus, for a homeowner to prove that he or she was not negligent, one may only have to prove that (a) he or she did not spray the toxin, or (b) the pest control company failed to properly identify the areas contaminated by the spray in a manner clear and visible to the occupants, or (c) the pest control company failed to disclose the dangers, or (d) the pest control company failed or refused to provide the pesticide label. Again, it would be rare that any toxin-spraying pest control company would have a defense. The contract to spray your home with toxins is legally uneforceable, the lack of disclosure warrants a full refund regardless of the services provided, and the "ultra hazardous" nature of the act itself makes toxin-spraying pest control companies liable to you for potentially decades.
Black's Law Dictionary defines "gross negligence" as "[t]he intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another."
Failure to know the toxicology of at least the active ingredient in a product clearly marked as poison could be considered gross negligence. Continuously using a product marked as a danger to humans and domestic animals when alternatives of equal potency but zero toxicity exists, could be construed as gross negligence. Failure to identify a particular insect infestation before the repeated applying of a toxin with known carcinogenic potential is gross negligence. Failure to inform the homeowner of the carcinogenic potential is gross negligence. Failure to identify properly the areas contaminated by toxin after spraying is completed is gross negligence. I assert that the acts of pest control companies and their technicians that apply the toxins rises to the level of gross negligence under the circumstances.
The state goes on to write that "did not assume the risk of pesticide exposure." I find this one tricky or even loaded. If the legislative intent and case law supports that, "assume the risk" means you signed a contract, then the battle gets harder. However, when the pest control company failed to disclose the dangers of the toxins for fear of losing you as a customer, you did not assume the risks because you did not know the risks or how dangerous the products are nor the potential for acute or chronic health problems related to exposure to the pesticide. An assumption of risk does not manifest itself automatically when you purchase consumer goods or services. Because the pest control company by law must have the labels for each product they use or warehouse, the risks of harm to humans and domestic animals is clearly identified on the label. Furthermore, failure to inquire about the other ingredients or even research the active ingredient is negligent.
Black's Law Dictionary defines "reckless negligence" as being when "the actor has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow."
There is no question that there are numerous warnings on toxic pesticide labels; warnings so severe that no reasonable person would permit another to contaminate his or her home and environment if he or she had been aware of dangers made obvious to the pest control operator and his technician via the stern warnings on the pesticide label. If the operator and/or technician ignored these warnings and applied the pesticide, then the technician jeopardized the life and property of another. Consequently, I contend that when the acts are taken in totality, the application of toxic pesticides to another's' property without disclosure amounts to reckless negligence and with disclosure - gross negligence.
The courts could also look at the lack of action to mitigate consumer harm. If the pest control company knew the product was dangerous, why did they apply it despite the warnings on the label? Pest control companies that spray these toxins for profit should be required to return every dollar to the consumers and disgorge all profits made from applying self-admitted toxic synthetic dangerous poisonous pesticides to your home, land, and in places where your children and pets frequent.
The inevitable class-action lawsuit will happen because state law claims for negligence are being permitted by the courts and harder to dismiss under FIFRA. There are millions of plaintiffs and certifying a class may prove a simple task given the weight of the evidence against the EPA, pesticide makers, and pesticide sprayers, along with decisions in recent state court cases. The defendants in a negligence claim could be many. Others may join the suit such as Attorneys General, healthcare agencies, insurance companies, and descendents of victims of pesticide related deaths. This kind of reckoning has happened before in the case of Indians and other groups. Furthermore, it happened in the tobacco industry. My thought is that even tobacco companies would join as plaintiffs because the pesticides make their products even more toxic, adding to the negative health effects of the existing 500 or more chemicals applied to cigarettes. The feeding frenzy would last for decades, but an immediate injunction that stops the sale and use of the synthetic toxins would be worth its weight in gold and good health.
How can we help? First, we help you cancel with your previous pest control company if they have ever sprayed a single drop of toxin on your property. If you were to continue with the same company, you may negatively impact any potential future claims by ostensible ratification of their acts.
Then, we work with you to get your home decontaminated. Decontaminating your home is a clear indicator to the courts that you disagreed with the application of poisons in and around your home or in places where your children and pets frequented. Furthermore, the cost to decontaminate your home may be a reimbursable expense that your previous company would have to pay.
Finally, we begin a non-toxic treatment program for your home using commercial grade products that are "Safe Around Children And Pets.". Please contact us immediately. We can help. Again, this is not legal advice and you should consult an attorney to preserve your rights.
AgriLIFE Extension, Texas A&M System / Texas Pesticide Applicator General
Pest Control Magazine, November 2005
Pest Control Times, August 2009
Texas Department of Agriculture, SPCS / Structural Pest Control Law and Regulations, 2009
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