TOPEKA, Kan. (Legal Newsline) - Municipal employees who complained of a variety of ailments after inhaling pesticide fumes in an office building can sue the city of Moscow, Kansas, as well as the company that applied the chemicals despite having little scientific evidence of exposure beyond their recollection of a “really, really bad smell,” a Kansas appeals court ruled.
Norma Najera and Teri Shope sued their employer as well as General Pest Control for negligence after GPC sprayed their building for insects, leaving them with headaches, sore throats, nausea and a burning sensation in their lips. The smell was bad enough the Environmental Protection Agency ultimately sent a Superfund Technical Assessment and Response Team to assess the building, although the results were ambiguous.
A trial court dismissed Najera and Shope’s claims, saying they hadn’t provided enough evidence the fumes caused their medical conditions. The Kansas Court of Appeals reversed, however, ruling that in a negligence lawsuit circumstantial evidence is enough to put the question before a jury if it supports a “reasonable inference” of causation.
Soon after the pesticide company began spraying, Najera called her supervisor and asked him to come to the building because “the spray was awful and making her eyes water,” the appeals court said. The spray "had a real pungent smell" that was "really, really bad," Najera testified, telling her boss “(I)t smells like poop, like rotten cabbage."
The workers returned the next day and were told GPC had inadvertently mixed two chemicals, Tandem and Orthene. The city distributed air fresheners and cleaned the carpets but the building still stank, and the city closed it in October 2015. The following July, the EPA Superfund team found traces of Tandem and another pesticide but none of Orthene, concluding other pesticides or chemicals could have caused the plaintiffs’ illnesses.
Dr. Eva Henry, a neurologist, treated Najera a year after the exposure and said she found elevated levels of chemicals including benzene and bisphenol A in her blood and urine, which she blamed on “acute overexposure” to Tandem and Orthene.” She diagnosed Najira with “toxic environment exposure,” thyroiditis, vitamin D deficiency, chronic fatigue and fibromyalgia. Dr. Henry also diagnosed Shope, reporting her neuropathy was related to her exposure.
Dr. Paul Goldstein of the University of Texas El Paso testified that Orthene belongs to a family of phosphate insecticides that are very dangerous to come in contact with. He said he’d never heard of mixing Orthene and Tandem.
The trial court granted the defendants’ motions to dismiss, ruling that there wasn’t enough evidence for the jury to determine if the plaintiffs’ conditions were caused by the pesticides. The appeals court disagreed.
To establish “causation in fact” sufficient to put a claim before a jury, the court observed, the plaintiff only has to provide evidence the defendant’s actions more likely than not caused the injury. To establish legal causation, the plaintiff also has to show the risk of harm was foreseeable.
In this case summary judgment was inappropriate, the court of appeals ruled, because only a jury could decide the fact question of whether the pesticides were a substantial factor in the plaintiffs’ injuries, regardless of whether other factors contributed.
The defendants cited a 2008 Kansas Supreme Court decision upholding the exclusion of an expert witness who briefly examined a plaintiff before diagnosing her with multiple-chemical-sensitivity, a condition that is not widely accepted by physicians. The appeals court rejected the comparison, saying the plaintiffs here provided better evidence of exposure and were diagnosed with “commonly accepted medical conditions.”
The appeals court also rejected the argument Dr. Henry’s diagnosis suffered from the post hoc, ergo propter hoc fallacy, concluding an exposure caused an illness simply because one predated the other.
“The pesticides used are known, the exposure is known, the potential effects of exposure are known, the plaintiffs' medical conditions and diagnoses are known, and the physical exams and lab work could support the medical diagnoses,” the court said.
The court likewise rejected an argument the plaintiffs had to show the amount of chemicals they were exposed to, saying if that were the rule, “defendants could avoid all liability simply through failure to keep accurate records.” A toddler who drank poison couldn’t be expected to remember how much was in the bottle, the court went on, but that isn’t an argument the case shouldn’t go before a jury.
“Plaintiffs are not required to prove causation beyond any doubt,” the appeals court concluded. “Circumstantial evidence is sufficient to support causation when it 'affords a basis for a reasonable inference by the court or jury of the occurrence of the fact in issue, although some other inference equally reasonable might be drawn therefrom.’”