Plaintiffs Win Damages in Pesticide Suit

Attorneys, farmworker advocates and residents of one rural community are hoping that a recent settlement in a pesticide-related civil case in Kern County will send a strong message to companies that violate pesticide laws and compel them to take greater safety precautions when applying the chemicals.

Eighty-four residents near the farming town of Arvin who sued after being poisoned by a soil fumigant three years ago will share $775,000 for their injuries in one of the largest court settlements of its kind.

“It is significant,” said Michael Freund, a Berkeley-based attorney who represented the 84 plaintiffs. “If the government is not going to do its job, it takes lawsuits to hit the companies financially and get them to hopefully improve their practices.”

“The ball has been in the businesses’ court for some time to voluntarily come into compliance and to enforce the safety of farm workers, and they haven’t been doing that,” said John Mitchell, deputy district attorney in Kern County, who has filed civil cases in a couple of pesticide drift incidents.

“Any time you are able to compensate victims for negligence or actions that they had no control over, I think that’s a good thing,” he added.

County and state investigators found that Western Farm Service, a major Fresno-based distributor of fertilizers and crop protection products in the western United States, failed to take the necessary precautions when applying metam sodium to fields near Arvin in July 2002. As a result, more than 250 people became ill from exposure to chemicals produced as the fumigant broke down.

Western Farm Service was hired by Kirschenmann Farms in 2002 to fumigate its fields near Arvin, just outside Bakersfield.

On Nov. 18, Western Farm Service agreed to pay $500,000 and Kirschenmann Farms agreed to pay $275,000 to the 84 victims pending finalization of the settlement agreement.

The case has not technically been closed because a judge still has to approve the settlements pertaining to 32 minors, said Michael Fox, a San Francisco-based attorney for Western Farm Service. The company declines to comment until the agreement is finalized, Fox said.

Kirschenmann Farms representatives could not be reached for comment.

Freund said the court was expected to issue its final approval Tuesday.

Kern County has been the focus of several other high-profile pesticide drift incidents in recent years, including a 2003 case in Lamont, near Bakersfield, that also involved Western Farm Service and in which more than 170 people have sued the company. The case is pending.

The Arvin settlement comes as California awaits the start of its first criminal prosecution in a pesticide-related matter in 14 years in a case stemming from a 2004 methyl bromide poisoning incident in Oakdale. Methyl bromide can cause irreversible neurological damage and death.

The California Department of Pesticide Regulation classifies metam sodium -- at the center of the Arvin incident -- as extremely hazardous.

Symptoms from metam sodium exposure include burning and teary eyes; skin, nose and throat irritation; and vomiting.

Plaintiff Domenica Serna said she was pleased that the case had been resolved but thought the settlement amount was unfair given what the victims had suffered and the potential for continued health complications.

“We were exposed to a lot of chemicals. It was in our homes. It was on our clothes. It was everywhere,” said Serna, 26, who lives in Edmundson Acres, a residential development about a mile and a half north of Arvin, across the street from the fields that were fumigated. She said she suffered burning eyes and blurred vision and had trouble breathing.

Serna, the mother of an 8-year-old son, also expressed concern about possible negative effects to her reproductive system. She said she had miscarried two babies within the past two years. She added that she still suffers headaches, and her fiance often breaks out in a rash.

Francis Lyday, another plaintiff, said he was satisfied with the settlement, but only if it served to push violating companies to take responsibility for their actions.

“It wasn’t about the money. The idea was to stop this from happening,” said Lyday, a retired heavy-duty mechanic who has lived in the Arvin area for 35 years.

Lyday said he suffered burning eyes and migraine headaches after the incident. “We don’t like being poisoned.”

Teresa De Anda, Central Valley representative for the statewide coalition Californians for Pesticide Reform, said she favored mandatory criminal prosecution for companies that violate pesticide application regulations.

“If I were to take a can of Raid and spray my neighbor in the face, I would have to go to court,” De Anda said. “I can’t see the difference [for businesses].”

Last year the California Department of Pesticide Regulation resolved to settle with Western Farm Service in the Arvin case to save time and money. The company agreed to pay $50,000 in civil penalties to the state and $10,000 to the Kern County agricultural commissioner to cover the cost of its investigation.

Pesticide regulation department spokesman Glenn Brank said that in agreeing to settle, Western Farm Service did not admit any wrongdoing. But the state found that the company had committed multiple violations of pesticide law.

Critics say state and local authorities need to do more to ensure that pesticide companies abide by the law and that they are pushing for stricter and more consistent enforcement.

Freund, the lawyer, called for the buffer zone between fields and sensitive areas, such as schools and residential neighborhoods, to be expanded beyond the current recommended 500 feet.

He said companies should be compelled to give people substantial notice before any pesticide application so they could leave the area if they wished.

Brank, of the pesticide regulation department, said his agency was preparing further recommendations on buffer zones for metam sodium and other fumigants.

He noted that substantial information about safety precautions was available online in English and Spanish at www.cdpr.ca.gov.

In August, the Department of Pesticide Regulation and the statewide group of county agricultural commissioners adopted a policy aimed at strengthening and standardizing pesticide enforcement regulations statewide.

“We have to take a zero-tolerance stand against pesticide violators,” Brank said, adding: “Compliance with pesticide law is the law. But it’s also good business.”