Preventing Pesticide Illness Claims

MPs and manufacturers sometimes face a variety of claims from consumers, spurred by anti-pesticide activists, alleging that consumers were harmed by pest control products. Typically, these lawsuits are defeated because it can be proven that there is no scientific connection between the consumer’s claimed injuries and the molecules that they blamed.

By and large, modern pest control products are targeted to specific attributes of the intended insect populations. I often find that the main question asked by an attorney representing an individual alleging injury from an IGR product is usually something along the lines of, “Does your client molt? Because if they don’t, then this product wouldn’t affect them.”

Pest management professionals always should be prepared to ensure the greatest likelihood of success if and when they are confronted by a pesticide illness claim.

“ABOVE & BEYOND” TRAINING. The key to limiting claims and prevailing on those that are made is training. A major claim made in lawsuits involving pesticide injury is “negligent training.” At all phases of the employment relationship, ongoing verifiable training is critical to reducing the chance of a lawsuit. Training takes on different forms at different phases of the employment relationship.

New hire training is usually mandated by the state. New hires can include first-time trainees with no experience in the industry, and also those with substantial industry experience hired by your company for the first time. Some state-mandated training sets the minimum standard to get started in the industry. For example, 40 hours of classroom or computer-aided training followed by a certain number of days of on-the-job training with a certified operator or service manager may be required. But that training standard can be voluntarily exceeded.

Showing a judge, jury or an arbitrator that your company is dedicated to “above and beyond” new hire training indicates a level of responsibility and attention to detail greater than the “industry standard,” which is the level against which most judges, juries and arbitrators will measure your training.

First-time industry members and veteran hires also may subject your firm to a “negligent hiring” claim if a pesticide misapplication, for example, occurs. A negligent hiring claim is usually based on the claimant discovering that there was some “red flag” in the employee’s past that was not discovered in the hiring process, which led to the alleged misapplication. The discovery of documented irresponsible behavior, a criminal record or poor performance at other companies might lead to a lawsuit. Documented efforts to learn about a prospective employee’s background before hiring can limit a negligent hiring claim.

Whether the employee is new or experienced in the industry, verifiable ongoing training is a necessity. “Verifiable” means that there is an ongoing, permanent record of the training given and recorded attendance at the training session or completion of an online course. Going above and beyond the industry standard can include, for example, a half hour spent at a weekly technician meeting, reviewing label obligations, record-keeping, personal protective equipment use, ventilation and equipment maintenance.

While this amount of training may seem overwhelming, keep in mind that there is no reason to think about a new course and new topics each and every week for years. Feel free to recycle topics as reminders. Consider establishing a yearly schedule. For example, the sixth week of the year can be “PPE Use,” the seventh week can be “Pesticide Use Record Keeping,” and so on. Keep a record of your efforts and maintain attendee lists either in a corporate file or in individual personnel files.

NO BAD HABITS. There are two main types of pesticide lawsuits: An alleged misapplication to a non-targeted area or an allegation that the pesticide used was either more concentrated than otherwise allowed for that use or that there was “too much” product used.

Accurate paperwork is key to prevailing in a pesticide misapplication allegation lawsuit. Details are important, so it is imperative to prevent personnel from getting comfortable with failing to detail the product used, the concentration and the volume. Yes, it can seem cumbersome and rudimentary to record these details six to ten times a day. However, a routine spot check or an ongoing review of service records by trained personnel, service managers or ownership is critical to maintaining record-keeping discipline and may be the law in your state.

Maintaining accurate paperwork includes not only the concentration and amount of product used, but the location. Memories fade over time, and accurate, real- time records of the location and type of application are the best evidence of what really happened if there is a lawsuit three or four years after the service is complete.

Of course, product selection for the pest control challenges your company faces is paramount. Ensure that the products selected are the right products for controlling or preventing infestation.

EXCELLENT CUSTOMER SERVICE. John Mulrennan, the long-time chief at the Florida Bureau of Entomology, State Board of Health, was fond of saying that the difference between a satisfied customer and a lawsuit is how you handle the first complaint call. Some lawsuits start as a customer service call about an odor or a spray pattern on a wall or sofa. How you handle that first call may determine whether the customer’s initial concerns explode into a costly claim. Using a label approved clean-up procedure, with documentation that the clean-up was performed for customer satisfaction only with no admission of liability, may be enough to satisfy the customer.

If you visit the customer, you can collect evidence by taking photographs of the alleged misapplication area. Note and photograph if the customer has self-performed pest control. Garages and cabinets may reveal evidence that the customer, not your technician, applied the product in question. Other than pesticide containers, note other types of evidence that could reveal that a commonly used outdoor product was brought indoors by the customer, even if inadvertently.

EMAILS ARE EVIDENCE. Be honest and truthful at every turn, but keep in mind that all communications, both inside and outside your company, might be read by the other side and shown to the judge, jury or arbitrator. Do not make casual remarks that can be interpreted as lack of concern or hostility towards the customer or claimant. Emails and texts are as discoverable as a note in a customer file.

Virtually all service industries attract media attention for one reason or another, and pest control is no different. Invigorating and verifiable training and documentation efforts will ensure that pest management professionals are in the best position to avoid and defend pesticide-related claims.

Daniel J. Gerber is a partner of RumbergerKirk (www.rumberger.com), where he represents clients in the areas of toxic tort, class actions, commercial litigation and governmental affairs. He frequently defends pest control companies and manufacturers of pesticides in claims alleging injury from chemical exposure.