Maker Is Ruled Not Liable in Malathion Suit

The California Supreme Court, ruling in the case of a Los Angeles boy who contends he was blinded by malathion spraying, said Monday that manufacturers of the pesticide cannot be held liable for injuries that occurred during the state’s emergency Medfly eradication program.

At the same time, the high court hinted that California officials did not issue adequate public health warnings during the 1990 aerial spraying of malathion in Los Angeles and sent the case back to Superior Court, so the boy--now a young man--can proceed with his suit against the state.

Deciding the case on narrow grounds, the court ruled on a 6-1 vote that it was the duty of the state--not the manufacturers--to warn the public of any hazards, because the aerial spraying came under a state declaration of emergency.

The court noted, however, that the state’s repeated declaration that the pesticide was safe was in direct contradiction to a federal Environmental Protection Agency warning that advised people to seek medical assistance if they got malathion on their skin or in their eyes.

“In contradistinction to the warnings set forth in the EPA-approved label, the state’s flyers represented that malathion posed no health risk and failed to alert persons exposed to the spray to wash immediately and consult a physician,” the court wrote. “The state’s flyers did warn, however, that the spray could cause ‘discoloration to finishes of some cars’ and advised residents to place their cars “in the garage, or cover them to avoid exposure.” The ruling comes in the case of Juan (Johnny) Macias, who contends he went blind at the age of 14 because he was exposed to malathion sprayed over his neighborhood.

According to his suit, he ran outside on the night of March 28, 1990, to tell his father to cover a pickup truck because the spraying was about to begin. As the helicopters flew overhead, he was caught in a downpour of the sticky mixture of bait and malathion, he says.

Within days, Macias became ill and began to lose his vision, the suit contends, and within two months he was legally blind. His doctors have concluded that malathion was the cause of his blindness--a finding disputed by the state.

The suit, filed by the boy and his family, contends that if a proper warning had been issued, he would not have gone outside and been exposed to the chemical or, if he had, would have immediately taken proper medical precautions.

The suit was filed against American Cynamid Co. and other firms that make the chemical, as well as against the state, but the trial judge dismissed the manufacturers as defendants.

Barry Litt, Macias’ attorney, argued that the companies had a duty to notify the public separately under standard product liability laws that require manufacturers to issue their own warnings if they know that distributors of their products have not put forth proper health advisories.

Litt appealed and won a ruling last year from a state appeals court overruling the trial judge and allowing the boy to sue the companies as well as the state.

The Supreme Court, however, ruled that the state, by declaring a state of emergency to control a Mediterranean fruit fly infestation, had relieved the companies of any independent obligation to issue warnings. Indeed, it said, such warnings could actually create a larger hazard by interfering with government efforts.

“To impose a common law duty to intervene in a declared state of emergency would represent an unprecedented intrusion on the state’s police power to protect the citizens and economy of California in times of peril,” the court held. “To authorize, indeed to compel, a party to undermine the public health warnings promulgated and published by the state . . . could severely compromise the government’s ability to respond effectively to the emergency.”

But the court, in the opinion written by Justice Armand Arabian, went on to point out the state’s obligation:

“We do not mean by this to suggest that the state may withhold critical information during an agricultural emergency to suppress public opposition. On the contrary, the Food and Agriculture Code clearly requires full disclosure.”

In a strongly worded dissent, Justice Stanley Mosk argued that it should be left for a jury to decide whether the makers of malathion fulfilled their responsibility to warn the public in the face of inadequate health advisories issued by the state.

But like the majority of the court, he came down hard on the issue of the state’s responsibility. “It appears, then, that the state did not meet its duty to ‘convey the most complete and accurate health information’ to the public,” Mosk wrote. “Instead, it omitted health and safety warnings--perhaps in a deliberate effort to allay public anxiety and avoid public opposition to aerial spraying of malathion over residential areas, perhaps through bureaucratic incompetence or mere inadvertence.

“In so doing, it violated express state and federal requirements. It thereby ‘placed in jeopardy’ if not ‘the lives, property and resources of the citizens of California,’ then at least the eyesight of Johnny Macias,” Mosk concluded.

Macias’ suit against the state is scheduled to go to trial in February, nearly six years after he went blind. Much of the case will turn on whether the state is protected from responsibility because the effort to eradicate the Medfly was part of a declared emergency, requiring fast action.

But Litt noted that the state has been carrying out its eradication effort under emergency declarations since 1980 and argued that, in fact, it has become an ongoing program.

“It seems they have long outworn the notion this is an emergency,” Litt said. “The state has to be responsible for what it’s done.”