TERMINIX MUST PAY $2 MILLION PLUS IN PUNITIVE DAMAGES IN CONQUER SPRAYING CASE

"The evidence supporting our conclusion that Terminix authorized, participated in, or ratified Sanchez's conduct ... establishes Terminix's indifference to, and reckless disregard for, the health and safety of the plaintiffs." 

 

Subject:   TERMINIX MUST PAY $2 MILLION PLUS IN PUNITIVE DAMAGES
Date:       Wed, 11 Oct 2000 15:10:45 -0400
From:        Stephen Tvedten <steve@getipm.com>
Organization:     Get Set Inc. (www.getipm.com)

To:     Paul Helliker <phelliker@cdpr.ca.gov>
          Director, State of California, Department of Pesticide Regulation 

Dear Mr. Helliker, I thought you might like to read an anonymous e-mail I just received entitled: TERMINIX MUST PAY $2 MILLION PLUS IN PUNITIVE DAMAGES IN CONQUER SPRAYING CASE - Sue Darcey' PESTICIDE REPORT (9/30/2000 Page 6).

The Tenth Circuit Court of Appeals ruled Sept. 6 that Terminix Int. must pay combined punitive damages of over $2 million for chronic injuries suffered by three New Mexico prison employees after an employee of the company sprayed "Conquer" pesticide in their workplace (Bielicki v. Terminix Int., Case No. 98-2349, 2000 WL 1260337, 10th Cir. (NM)).

The ruling affirms a judgment by the US District Court, District of New Mexico that the company was liable for actions of its employee, Marquis Sanchez, on April 17, 1997, when he sprayed Conquer (active ingredient esfenvalerate) near a kitchen of the New Mexico State Prison where Vicki Bilelicki, Marta Romana and Cindy Vigil were working.

Initially the lower court found in favor of the plaintiffs and awarded compensatory damages of $60,700 to Bielicki, $77,800. to Romano and $31,600 to Vigil. It also awarded punitive damages of $728,400, $933,600 and $379,200 to the three women, respectively.

In the case, the district court held that there was sufficient evidence to show that a Terminix manager, David Minder, authorized Sanchez to treat the prison kitchen with Conquer, despite the manager's knowledge that using Conquer as a fog and crack and crevice treatment in the brick plumbing of the building would cause the pesticide to enter the kitchen where the three woman were working.

Sanchez testified that he knew from Conquer's label that it was dangerous to spray it when people were present, but was told by Minder that the most important thing was to spray the insecticide, because Minder's fear of losing the prison's account.

Several Safety Practices Disregarded

In addition to the hazardous spraying near the kitchen, several other safety practices were apparently disregarded by Terminix during the incident, said court accounts. Sanchez was not properly licensed or trained, the court said; a corrections officer present was not provided with goggles or a respirator; a MSDS later requested by the corrections officer was not present in the Terminix vehicle brought to the site, against regulations, and although Sanchez later told his supervisor Minder that he spraying made three employees sick, Minder told him "not to worry about it," and never followed up on the employees' complaints.

According to the court records, another Terminix supervisor, Rick Boss, also failed to take action to investigate the incident and joked about it, saying Sanchez was "SAVING THE TAXPAYERS MONEY" by "GETTING RID OF THE INMATES." In ratifying the lower courts decision, the 10th Circuit Court of Appeals stated, "The evidence supporting our conclusion that Terminix authorized, participated in, or ratified Sanchez's conduct ... establishes Terminix's indifference to, and reckless disregard for, the health and safety of the plaintiffs." The appellate court added, "Because the atmosphere of condoning disregard of safety concerns resulted in permanent physical injuries to the plaintiff, we cannot denounce the award as excessive based in the lack of reprehensibility."

Well Mr. Helliker, You and I well know you have never bothered to register any of the "inert" ingredients, metabolites, contaminants, and/or transformation products that make up a "registered" pesticide formulation; but, clearly you have also not bothered to register or even consider any "potential" misuse or misapplications.  I remember when the President of the State Pest Control Association bragged to me: "Everyone in this room is in violation (of the labels)" - to which I answered: " Except me or you would have hung me years ago."  In the many hundreds of thousands of POISON applications my company made over the years, no "regulator" ever checked to see if ANY of them were made according to the label!  When you continue to pretend that your pesticide POISONS are "registered" and/or that they are being used according to the label you are clearly deceiving the public.  

Respectfully,  Stephen L. Tvedten

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