Pesticide Makers Could Be on Hook for Illness
(CN) - Manufacturers of an ant and termite killer must face claims that their product gave a woman reactive airway disease and nausea, a federal judge ruled.
Steven Gucciardi bought the can of Bonide Termite and Ant Control at issue from a Lowe's in North Wilmington, Del.
Gucciardi said he used the product first in November 2006 and again on Jan. 24, 2010, after finding black insects crawling on his basement wall in Glen Mills, Pa. His wife Regina was in Key West, Fla., at the time.
In addition to following the can's instructions about wearing glasses and long sleeves while using the product, Gucciardi allegedly left the basement windows open for four to five hours. He nevertheless experienced a rapid heartbeat, headache and nausea the next evening, according to the complaint.
The overwhelming odor and resulting symptoms allegedly kept Gucciardi out of his home for five or six days, during which time he returned only occasionally to pick up some items.
Gucciardi's trial expert, Wayne Ross, M.D., opined that the fumes are so prevalent that they "would render any individual incapable of normally living in and breathing" at the home.
Regina, the wife, reported that the home still smelled horribly when she returned in early April. Although she allegedly stayed just about an hour to open the windows, her lips began to burn and she felt lightheaded. She claimed to have felt worse each time she entered the house.
Ross said Regina also experienced "nausea, headaches, eye irritation, dizziness, fatigue, profuse sweating, chemical hypersensitivity, weight loss and impaired concentration."
The doctor attributes Regina's April 2011 reactive-airway disease diagnosis to her pesticide exposure.
The Gucciardis also said that the pesticide caused several visitors to experience adverse health effects.
Toxicology expert Gary Whitmyre said that the pesticide has rendered the home "uninhabitable" and that the couple can never "have a normal life there."
The couple brought their complaint against Lowe's, Bonide Products Inc., Nationwide Chemical Products Inc., and its alleged successor, NCP of Northwest Ohio Inc.
Lowe's was dismissed as a defendant last year, but U.S. District Judge Ronald Buckwalter refused on June 24 to grant Bonide and the manufacturers summary judgment.
The 24-page ruling denies that the Federal Insecticide, Fungicide, & Rodenticide Act (FIFRA) pre-empts the liability, negligence and warranty claims.
"The 3rd Circuit has expressly held that such claims are not preempted by FIFRA because they do not implicate the product's label," Buckwalter wrote. "Nor does this court find that such claims impose any obligations in addition to or greater than those required by FIFRA," Buckwalter wrote. "The mere fact that plaintiffs' success on these claims could induce defendants to change their label on the product does not equate to a labeling 'requirement' that is inconsistent with FIFRA."
Punitive damages are also on the table, according to the ruling.
"While plaintiffs have not conclusively established an entitlement to punitive damages, their argument and evidence are sufficient to create a genuine issue of material fact as to whether defendants' actions rose to the level of deliberate indifference," Buckwalter wrote.
Though the claim that NCP succeeded Nationwide as the owner and seller of the pesticide is "tenuous at best," it remains a question for the jury, the court said.