How to Avoid Pesticide Exposure Lawsuits: July, 2001 Issue of Pest control Magazine
Here are some tips to keep your company out of legal matters over your pest products.
Subject: The following article is from the July, 2001 Issue of Pest control Magazine..........
Date: Fri, 13 Jul 2001 15:15:57 -0400
From: Stephen Tvedten <steve@getipm.com>
Organization: Get Set Inc. (www.getipm.com)
How to Avoid Pesticide Exposure Lawsuits
Here are some tips to keep your company out of legal matters over your pest products.
By Dan Gerber, Contributor
Having represented pest management companies in nearly 100 court cases in Florida, my firm and I know that pest management professionals (PMPs) are often the target of lawsuits. Too often, customers of PMPs sue because they believe they have been poisoned through exposure to pesticides.
Recent introductions of new termiticides and termite treatment techniques have not curtailed the threat of these unjustified lawsuits. Unfortunately, some customers continue to believe that pesticide application leads to long- and short-term health effects.
The typical pest management product exposure case begins with a call from a customer with one of several complaints. These complaints are based upon the customer's perceptions. For example, pesticide odors and stains provide the litigious customer with an obvious starting point for a claim. At the next level, a customer may complain about headaches, dizziness or other mild physical symptoms commonly associated with illnesses. Because of the timing and association of symptoms, odors and stains, however, the customer may come to the erroneous conclusion that his or her headache was caused by the product.
Building the Case Propelled into suspecting a pest management product illness, the customer may find many sources of information with which to pursue the claim. Unscrupulous lawyers are one source. Another source is Web sites dedicated to those opposed to the use of pest management products. There are chat rooms used by junk scientists and plaintiff's lawyers to prey upon people's fears, convincing them that they were injured by an application.
Further, savvy customers can often read material safety data sheets (MSDSs) or product descriptions online. These vehicles provide lists of common symptoms experienced from exposure and precautions that should be taken to avoid exposure. Too often, we have seen claimants create "self-fulfilling prophecies" by reading these materials, whether online or given by the PMP, and then matching their symptoms to the literature.
For example, a customer of one of our clients had eye irritation following an application of a product containing cypermethrin. The customer filed a suit, alleging that the pest management product caused her injury. While it was true the product was used in her home and that irritation is a possible result of exposure to the product, it was also true that the customer had just started applying a skin care product to her face. Early visits led the doctors to the conclusion that it was the skin care product, not the pesticide, that caused the injury. Yet, the customer attempted to place blame on the pest management product, believing it was a more obvious cause of her injury.
In addition, junk scientists disguised as medical care providers then convince the customer that they were in fact injured by the products, and offer expensive treatments. These treatments are often more harmful than long-term exposure to the pest management products, and contribute more to ill health than anything else.
By this time, the lawyers get involved. Now the PMP is embroiled in a lawsuit, which wastes time, could injure a company's reputation and could cost thousands of dollars if the company is not insured.
Avoiding the Lawsuit PMPs can take action well in advance to reduce the risk of lawsuits. Such measures can include employee training, making wise product decisions, application methods, good customer responsiveness and simple cleanup practices.
Training-PMPs should exceed, not simply meet, state standards for training their employees. A blend of on-the-job and classroom training is beneficial in many ways. First, the PMP can "weed out" individuals who are not motivated, cannot follow instructions or have questionable work habits. Second, a structured training program ensures that employees are not sent into the field until they understand the complexity of the issues that they will encounter. Third, if litigation occurs, a well-documented training program will provide beneficial evidence for a jury.
Product selection-Obviously, there are many factors that contribute to the decision to purchase one product over another. Price, ease of distribution and supply, and the area of use are factors. Beyond that, though, efficacy and "perceived safety" should also be considered from a risk management perspective.
Termiticide effectiveness, for example, is often measured by field performance studies. To reduce property damage claims, a PMP obviously wants to select an effective product. It is also important to select an effective product to ward off potential lawsuits from homeowners claiming an ineffective termiticide was used. Such claims may lead to fraud allegations that may include claims for punitive damages.
"Perceived safety" is not a legal principle, but one of marketing and customer attitude. As stated previously, customers are now able to view MSDS data online, and some states require PMPs to provide product information to customers on demand. For customers who are predisposed to lawsuits in the first place, exaggerating the effect of pest management product exposure is more likely to be encouraged by their chances of prevailing in light of severe MSDS or label health effect statements.
We have seen more than one PMP customer and lawyer steer themselves into a lawsuit over label language suggesting dangers from use of the product. Of course, much of the label language is directed toward use of the concentrated product or exposure to very high doses. Customers and their lawyers misunderstand this label language. When products offer similar efficacy, choosing the pesticide that offers a favorable toxic profile can also help you reduce the chance of a lawsuit.
Account preparation-Product application is where the "rubber meets the road." Product application has many different aspects, including preparation, application and recordkeeping. PMPs should prepare for an application by inspecting the area to be treated and conducting a detailed survey of the structure. Note any disqualifying conditions for treatment.
While we're on the subject of preparation, note that personal protective gear, while sometimes necessary, can lead to misperception by customers, too. We have a case in which a customer believed she was poisoned because the PMP wore a respirator during application. The customer, of course, re-entered the home without a respirator, believed she smelled a chemical odor, and fell into the trap that smelling an odor without wearing a respirator must mean a poisoning occurred. Educating the customer in advance as to what to expect during and after treatment may help avoid such a problem.
Product application-All responsible PMPs know to apply products in compliance with the label. However, we have seen customer complaints and lawsuits arise from applications that are within the label, yet sloppily performed. Prepare the customer for the appearance of the property after the treatment, whether the treatment includes drill holes, bath traps or other modifications, and exceed the customer's expectations in the repair.
We have defended two frivolous lawsuits against PMPs in applications in which the amount of active ingredient was less than two ounces. Be precise in your product mixture. Using prepackaged doses, metered measuring devices and rigorous training of employees will reduce lawsuits and enhance success in those lawsuits that are filed.
Recordkeeping practices-Precise recordkeeping is a requirement in today's environment. We have encouraged our clients to incorporate technology into their everyday practice to ensure accurate results. Lawsuits are typically filed two or three years after an application. During the time between the application and the lawsuit, memories fade, employees leave and some employees may turn hostile. Mandating accurate recordkeeping keeps those memories alive and those potential bad apples in check.
Make sure that all fields in your treatment record are filled out. If you are a manager, take an extra few seconds to review each record and make sure that every box and space that should be completed is finished and in compliance with the label and your own procedures. Use this review to take any necessary corrective action. Using global positioning satellite (GPS) and recordkeeping software with required fields will also help guard you against work by your employees that falls below your own personal standards.
Customer responsiveness-It's often been said that the difference between a satisfied customer and a lawsuit is how you respond to the customer's first complaint about a situation. A $150 professional home cleaning, an additional half-day of drill hole repair or a second complimentary service may be inexpensive compared to the hassle of litigation. Consider the damage to your reputation, distraction from your business and wasted time spent in a two-year lawsuit before denying yourself the opportunity to make a relatively quick fix of a customer's property-which, in the end, may get you another referral.
In many instances, there are existing conditions that can be easily corrected by the customer from the beginning. These conditions will often disqualify a structure from treatment if not corrected. Far too often, we have seen PMPs enter into handshake agreements with a customer, only to have the customer have amnesia about the agreement should litigation occur. If there are any conditions you place on treatment or the effectiveness of treatment, put them in writing and have the customer sign for them. If you tell a customer to leave her home and not return for eight hours, put it in writing.
Cleanup and remediation-If there is an accident that requires cleanup, follow the label carefully. Keep in mind that the customer may have access to cleanup procedures specified by the product manufacturer as well. Make your product supplier and manufacturer work for you. Measure the quality of technical support you obtain from the supplier and manufacturer, who may become your best allies if a claim is made.
In conclusion, lawsuits can be time-consuming distractions that can hurt your business. There may come a time in which there is a groundswell of litigation concerning even the newest pest management products. Make an effort to reduce the chances of litigation by proactively taking prevention efforts today. PC
Dan Gerber is an attorney with Rumberger, Kirk & Caldwell in Orlando, Fla. He has litigated cases involving alleged pesticide poisoning, warranty and guarantee actions involving wood-destroying organisms (WDOs).
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