Farmworker Pesticide Poisoning Suit Settles

Lawsuit Against Manufacturer of Phosdrin Exposed Outrageous Conduct and Made Important New Law

Apple orchard in Washington State. Photo by Scott Bauer, Agricultural Research Service, USDA.

Trial Lawyers for Public Justice  announced on May 14, 2002, that a settlement had been reached in Guzman v. Amvac Chemical Corporation, its lawsuit against the manufacturer of the pesticide Phosdrin for poisoning farmworkers Ricardo Guzman, Martin Martinez and Miguel Farias. The lawsuit, filed in September 1995, was resolved on the eve of trial in federal district court in Spokane, Washington. During its seven-year pendency, it exposed outrageous conduct by Amvac and won an important Washington Supreme Court decision enhancing consumers’ and workers’ rights.

"This is a case that made a huge difference," said co-lead counsel Marcia Meade of Spokane’s Dawson & Meade. "It uncovered Amvac’s disregard for its own employee’s warnings and its willingness to market a pesticide it knew could never be used safely. It also made new law benefiting all consumers and workers in Washington."

The farmworker plaintiffs in Guzman were poisoned by Phosdrin, an extraordinarily toxic pesticide containing the chemical mevinphos, when they mixed, loaded, and applied it to control aphids in apple orchards in Mattawa, Washington, in the summer of 1993. Sold as a concentrate to be mixed with water, Phosdrin has an extreme dermal (skin) toxicity – 78 to 2000 times higher than any other pesticide. The pale yellow liquid quickly absorbs through the skin and targets organs including the eyes, skin, respiratory system, central nervous systems, and cardiovascular system. Results can include dizziness, blurred vision, confusion, difficulty breathing, heart irregularities, uncontrolled twitching, exhaustion, vomiting, diarrhea, loss of consciousness, and death. Unlike other highly toxic pesticides, Phosdrin compromises thinking and brain function within minutes. This propensity makes Phosdrin exceedingly dangerous, because the ability to appreciate a potential overexposure and to protect oneself is almost immediately compromised. The pesticide is so toxic that ten drops of the concentrate on the skin can kill a 150-pound person.

Shortly after Guzman, Martinez, Farias, and 23 other farmworkers in Washington were poisoned, the U.S. Environmental Protection Agency ("EPA") issued an order effective July 1, 1994, cancelling the registration of Phosdrin and all other pesticides containing mevinphos. As a result, Phosdrin can no longer be sold in the United States – but it continues to be manufactured in countries that have not banned its use. In the meantime, TLPJ’s lawsuit discovered that Amvac knew of Phosdrin’s dangers long before the EPA took action.

The suit brought to light that Amvac knew in 1992 that the State of California was preparing to prohibit the use of Phosdrin because it was poisoning hundreds of farmworkers in that state. Despite extensive safety regulations and aggressive worker training, Phosdrin poisonings in California were occurring at rates 5 to 10 times higher than those involving any other pesticide. Aware of these facts, Amvac still urged Washington state regulators to endorse a pilot program using Phosdrin in the 1993 apple growing season, without disclosing the injuries taking place in California or its own research showing that Phosdrin could not be safely mixed in open systems or applied with air sprayers. Amvac provided Washington State regulators with training materials and a video in English and Spanish that it said would be used as part of the program. In fact, however, when the proposed program was approved, Amvac never used the training manual or distributed the video. Moreover, after farmworkers in Washington were poisoned and the Guzman case was filed, Amvac blamed the farmworkers’ injuries on the farmworkers, their employers, and Washington state for not having stronger regulations.

"This company acted reprehensibly," said co-lead counsel Richard Eymann of Eymann, Allison, Fennessy, Hunter & Jones in Spokane. "It was willing to sacrifice farmworkers’ lives and safety for profits. It had to be held accountable."

The lawsuit charged that Phosdrin was so unsafe and defectively designed that it should never have been sold at all. It also alleged that the farmworkers had not been properly trained to use it. On the eve of a scheduled trial in October 1997, however, the federal district court district dismissed the case based on the Federal Insecticide Fungicide, and Rodenticide Act (FIFRA) and its interpretation of Washington state law.

On appeal, the U.S. Court of Appeals for the Ninth Circuit certified two questions of state law to the Washington Supreme Court. The first question was whether a plaintiff may rely on an alternative product to prove a design defect under the "risk-utility" test of Washington product liability law. The second was whether a pesticide can be an "unavoidably unsafe product" as described in comment k to the Restatement (Second) of Torts §402A. As urged by plaintiffs, Washington’s high court answered the first question affirmatively. The court ruled that "a plaintiff may satisfy the requirement of showing an adequate alternative design by showing that other products can more safely serve the same function as the challenged product." On the second question, the court held that a pesticide can be an unavoidably unsafe product, but only "if its utility greatly outweighs the risks and utility of the pesticide." Based on those answers, the Ninth Circuit reversed and remanded the district court’s grant of summary judgment for Amvac on one of plaintiffs’ design defect claims.

"The Washington State Supreme Court ruling was important both to our clients in Guzman and to all workers and consumers," said TLPJ President-Elect Paul Stritmatter of Stritmatter Kessler Whelan Withey Coluccio in Hoquiam, Washington, who argued the appeal before the Court. "Amvac was essentially arguing that it was free to harm workers and consumers with impunity."

The case was then remanded by the Ninth Circuit for further discovery and trial. As the newly-scheduled trial was about to start, the case settled.

In addition to Meade, Eymann, and Stritmatter, TLPJ’s legal team in this case included Michael Withey of Stritmatter Kessler Whelan Withey Coluccio in Seattle; Eugene M. Moen of Chemnick, Moen & Greenstreet in Seattle; TLPJ’s Adele Kimmel; and appellate co-counsel Brent M. Rosenthal of Baron & Budd in Dallas and Patti A. Goldman of Earthjustice Legal Defense Fund in Seattle.