Lachenmeier, Enloe & Rall - February, 2004 Publication

OVERVIEW OF A PESTICIDE CASE

Ever since Rachel Carson published her ground breaking and polarizing book, Silent Spring in 1962 which dealt with the pesticide DDT and its thinning effects on the egg shells of birds, and since the controversial use of Agent Orange in Vietnam, the use of any chemical spray has become a very emotional issue. As a result, a pesticide spray drift case can be very costly in both time and money to defend. It is a challenge to keep the court and the jury (not to mention the parties) focused on the science and the law and to prevent the case from veering into an emotional, knee-jerk reaction to the use of pesticides. This article will address some of the areas that someone defending a pesticide spray case must focus on at the beginning of the case in order to keep the case on track legally and scientifically.

The Notice Statute
ORS 634.172(1) provides:

No action against a landowner, person for whom the pesticide was applied or pesticide operator arising out of the use or application of any pesticide shall be commenced unless, within 60 days from the occurrence of the loss, within 60 days from the date the loss is discovered, or, if the loss is alleged to have occurred out of damage to growing crops, before the time when 50 percent of the crop is harvested, the person commencing the action:

(a) Files a report of the alleged loss with the State Department of Agriculture;

(b) Mails or personally delivers to the landowner or pesticide operator who is allegedly responsible for the loss a true copy of the report provided for under paragraph (a) of this subsection; and

(c) Mails or personally delivers to the person for whom the pesticide was applied a true copy of the report required under paragraph (a) of this subsection if that person is not the person commencing the action.

“The apparent purpose of the statute is to permit the adverse party to inspect and determine the alleged damage, thereby permitting mediation of the claim.” Malaer v. The Flying Lion Inc, 65 Or. App. 154, 157, 670 P.2d 214 (1983). A claimant’s failure to file a Report of Loss with the Oregon Department of Agriculture (“ODOA”) within the time frames laid out in the statute is “fatal” to his claim against the “landowner, person for whom the pesticide was applied or pesticide operator.” Id at 158. Accordingly, it is imperative to immediately determine when the spraying occurred and when the claimant first discovered any damage to his property.

However, an adverse party can be estopped from raising the limitations period found in ORS 643.172(1). In Malaer, plaintiffs owned 14 acres of productive filbert trees. Defendants sprayed an adjoining wheat field with a pesticide which resulted in about ½ of plaintiffs’ property becoming contaminated. Within one week of the spraying, plaintiffs notified Oregon State University extension service of the over-spray. Within three weeks, plaintiffs notified defendants of their claim. Shortly thereafter, an adjuster from defendants’ insurance carrier came out to plaintiffs’ property to inspect the damage. The adjuster told plaintiffs that he would “take care of the claim,” that he thought the claim was “legitimate” and that “you don’t need to worry about it.” The adjuster did not tell plaintiffs that they needed to notify the State and plaintiffs were unaware that they needed to do so. Plaintiffs never did file a notice of loss with the State.

The court held that “the failure to report the loss to the Department of Agriculture is fatal. The evidence is that the extension agent is an employe (sic) of Oregon State University, not the Department of Agriculture. We hold that plaintiffs did not substantially comply with the notice provisions of ORS 634.172(1).” However, the court further held that defendants may be estopped from challenging notice due to the statements of the insurance adjuster. The court reasoned that the statements that he “would take care of the claim” and “you don’t need to worry about it” could be interpreted to mean that the insurance company was promising to pay the claim. The court determined that it was a genuine issue of material fact that should be decided by the jury. Accordingly, it is very important to watch what is being said to a claimant.

It is also important to keep in mind that not all people applying pesticides are covered by this statute. According to ORS 634.106(13), a “pesticide operator” is “a person who owns or operates a business engaged in the application of pesticides upon the land or property of another.” If the person applying the pesticide does not operate a commercial pesticide application business, he would not be protected by this statute (unless of course, he was also the landowner).

It is currently an open question in Oregon regarding exactly when the notice period begins to run. The authors recently had an herbicide overspray case in which damage to one crop was allegedly discover two days after the spraying while damage to another crop was not discovered until almost 60 days later. Notice was given to the ODOA 110 days after the initial spraying but only 57 days after the discovery of damage to the second crop. An issue that was never determined since the case settled was when did the 60 days start to run.

Another issue that arose in that case was whether an oral report to the ODOA would satisfy the statute. Plaintiffs had orally notified the ODOA within 60 days of the discovery of the damage to the first crop but did not file a written report with the ODOA. On summary judgment, the court stated there were genuine issues of material fact (without specifying what those facts were) and basically punted this issue to the jury. The court agreed that the statute appeared to contemplate written notice but still refused to grant summary judgment. Accordingly, even though the statute appears to be fairly cut and dry, it is not and can be a trap to the uninformed.

The Science

As soon as you receive notice that there has been a potential overspray of a pesticide, it is vital that you immediately have soil and plant samples taken to determine if the pesticide used can be found in the soil or plant material. Some pesticides have relatively short half-lives so the quicker the testing can be performed the better. For instance, according to the EPA, 2,4-D, one of the most commonly used herbicides in the world, has a half-life in terrestrial environments of 6.2 days. In other words, if you were to test for 2,4-D 60 days after it was sprayed, there would only be 1/1024 of the 2,4-D remaining and it soon would be below detectable levels.

It is important to determine if what the plants are exhibiting could have been caused by the chemical used. For instance, 2,4-D can kill broadleaf plants but does not harm grass in any way. Glyphosate (the active ingredient in Round-Up) will kill broadleaf plants and grasses. If the defendant sprayed 2,4-D and you see grass dying, it could not have been the 2,4-D that was sprayed causing the grass to die but it could be glyphosate.

Many diseases can mimic pesticide damage and vice versa. Different pesticides can have similar symptoms. It is therefore very important that a differential diagnoses is performed. In other words, it is important to eliminate other causes for the problems that are being seen with the plants. Could the problems have been caused by another chemical, a disease, an insect, farming techniques or a combination of these things?

Furthermore, as they say in medicine “the dose determines the poison.” For example, a little water is healthy; too much water will kill you. Consequently, it is necessary to determine just how much of the pesticide would have reached the off-target plants and how resistant the plant at issue is to the chemical that was used.

Finally, sometimes small amounts of an herbicide will actually stimulate growth of a plant. Therefore, it is important to mark off the area where the herbicide would have reached and see if there is a difference in growth patterns between the plants in that area and the plants not in that area.

The Spray Event

According to the EPA Spray Drift Task Force, the most important thing to look at to determine if drift is possibly is the droplet size. Accordingly, you need to determine the size and type of nozzle used, the height of the nozzles and the pressure at which the chemical was applied. The smaller the droplet size, the greater the chance that the chemical could drift.

It is also very important to determine the weather the day of the spraying (and in some cases for days afterwards). Of course, this does not need to be done as quickly as the soil and plant testing. However, at some point you will need to determine the temperature range on the day of the spraying, the humidity, the wind speed and its direction and whether an inversion occurred. Hiring a meteorologist is an efficient and accurate way of determining the weather surrounding the spray event.

This article provides a quick overview of a pesticide overspray case. In subsequent articles, the authors will delve into the issues of strict liability versus garden variety (pun intended) negligence in the pesticide application arena as well as damages available. In the meantime, if you have any questions, please feel free to contact the authors: Rudy Lachenmeier (Rudy@lerlaw.com) and Lori DeDobbelaere (Lori@lerlaw.com) at 503-768-9600.