ST. LOUIS (CN) - The 8th Circuit Court partly reinstated woman's claim that an insecticide caused her son's extensive disabilities when an exterminator sprayed the chemical in her home repeatedly from the time she was pregnant until her son was two years old.
Judge Diana E. Murphy upheld the district court's dismissal of the woman's claims against Dow Chemical and Terminix International, but said that her claims against the individual employee who sprayed the chemical in her home should have survived summary judgment.
Rene Junk claimed her son suffered severe neurological damages from being exposed to Dursban, an insecticide manufactured by Dow and distributed by Terminix.
Junk claimed she told Terminix employee Jim Breneman that she was concerned about the safety of the chemical during her pregnancy, but he assured Junk and her husband that Dursban was a "'naturally occurring organic material which would have no impact on human beings.'"
Junk claims Breneman sprayed Dursban in her home, which was infested with spiders, at least 20 times over a three-year period.
The district court dismissed Junk's claims against Breneman, finding that Junk had not shown that Breneman had deviated from Terminix's instructions.
But Judge Murphy cast doubt on that conclusion.
"Junk's complaint may reasonably be read to raise the issue whether Breneman acted outside of the scope of Terminix's 'plans, specifications and directions.'" Murphy wrote. "For example, it may be reasonably inferred from the complaint that Terminix would likely not have instructed its employees to represent that Dursban was 'a naturally occurring organic material' and 'would have no impact on human beings' when Dursban was in fact a synthetic chemical."
Murphy sent the Junk's claims against Breneman back to the state court for further proceedings.
Junk also argued that the district court should not have tossed out testimony from two expert witnesses and an EPA report.
But the appeals court agreed with the district court finding, noting that one toxicology expert deviated from his normal procedure, while the second expert relied on the first expert's flawed conclusion.
The appeals court also agreed with the district court in questioning the validity of an EPA report that summarized the effects of Dursban's active ingredient on pregnant women, noting that the EPA had placed a disclaimer on its own report stating that the report was "not sufficiently detailed" and was not "intended to be used directly for environmental assessments or decision making."
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