MTN will conduct our first in a series of “Whiteboard Wednesdays” related to the current Paraquat litigation on Wednesday, April 21st from 2:00pm -4:00pm EST.
Although our initial Whiteboard Wednesday session will focus on Paraquat, future sessions will focus more broadly on litigation involving other products regulated by the EPA as well as State agencies that generally fall under the auspices of FIFRA as well as each State’s relevant laws.
WHY LOOK BEYOND PARAQUAT
MTN research has concluded that the recent EPA action related to Paraquat is likely to be the first in a series of actions related to Restricted Use Products (RUP), that are likely to give rise product liability/personal injury litigations resulting from direct exposure (farmers and agricultural workers), as well as chemical trespass (individuals who reside near farms exposed via overspray and drift).
WHY DO WE BELIEVE PARAQUAT IS THE TIP OF THE ICEBERG?
The EPA is required to review every RUP products safety and labeling at least once every 15 years. As it turns out, every single RUP product on the market is up for the 15-year review by or before October 1, 2022. The new restrictions, warnings, and instructions relevant to Paraquat were a result of the “15 year” review of this single product. Given the heightened awareness of the issues of overspray and drift, we have every reason to believe that the 15-year reviews of other RUP Herbicides and Pesticides, will result in additional EPA actions like those relevant to Paraquat.
More simply stated, changes in the way these dangerous products are handled and used are overdue, and despite industry efforts to forestall their fate, time has run out.
Prudent Plaintiffs firms should begin developing broad expertise in this species of litigation now, as we believe these litigations may become as common as drug and medical device litigation.
RESTRICTED USE PRODUCTS DEFINED
Restricted Use Products or RUPs (as opposed to General Use Products) are not available for purchase or use by the general public. RUPs have the potential to cause unreasonable adverse effects to the environment and injury to applicators or bystanders without added restrictions. The “Restricted Use” classification restricts a product, or its uses, to use by a certified applicator or someone under the certified applicator’s direct supervision. See detailed information on the restricted use classification: 40 CFR 152.160 – 152.175.
SIMILARITIES TO ASBESTOS
On first blush, it would be reasonable to conclude that the Paraquat and other potential RUP litigations would be like the current Roundup litigation, or possibly the Agent Orange litigation; however, MTN is of a different opinion. Our research concludes that this litigation as well as likely future litigations involving RUPs bear more similarity to the Asbestos litigation and general pharmaceutical product litigations. We will explain our conclusions in the upcoming Whiteboard Wednesday as well as why it is important to approach these litigations with the proper “historical” and “commonality” perspective. Register Now!
IF YOU COULD ROLL BACK TIME
As a plaintiff’s lawyer, if you could roll back time and be involved in the asbestos/mesothelioma litigation at the emerging phase, would you? Of course, you would!
Having rolled back time, would you also take the time and put forth the effort to learn everything you possibly could to retain and best represent your asbestos/mesothelioma clients? Of course, you would!
Will you be kicking yourself in the future if you fail to realize that the current Paraquat litigation has far more in common with the asbestos/mesothelioma litigation than you might think, and thus fail to act now to gain the knowledge and information required to be on the forefront of this litigation? Of course, you will! Avoid kicking yourself in the future, it hurts and kicking oneself should never be on any to do list. Join MTN for our first in a series of Whiteboard Wednesdays. Register Now!
PRIMER FOR FIRST PARAQUAT LITIGATION WBW SESSION: WHAT WAS KNOWN ABOUT PARAQUAT?
The fact that Paraquat causes certain adverse health consequences has been well documented in the scientific literature for over a decade. Additionally, the fact that the very low level of exposure required to cause these adverse health consequences, is also well documented.
Adverse health events show to be caused by paraquat include but are not limited to:
- Parkinson’s disease (long latency period).
- Brain damage absent Parkinson’s pathology. (generally long latency period).
- Liver Injury, including liver failure. (latency dependent on dose exposure and accumulation).
- Kidney injury, including bilateral kidney failure. (latency dependent on dose exposure and accumulation).
- Lung damage described in the literature as “Paraquat Lung” including complete respiratory arrest and failure (latency dependent on dose exposure and accumulation).
- Heart Failure, as a primary injury as well as secondary to lung damage (cardiopulmonary injury).
- (latency dependent on dose exposure and accumulation).
- Still Births and Birth Defects. The weight of the literature relevant to Still Births and Birth Defects caused by Paraquat is limited.
The current Paraquat litigation did not arise from the sudden recent discovery that this highly toxic substance, given sufficient exposure, causes adverse health consequences, including those listed above.
The forgoing begs the question; If the adverse health consequences of paraquat were known for over a decade, why are Plaintiffs filing claims now?
SUMMARY OF THE CURRENT CAUSE OF ACTION
The makers of Paraquat (defendants) containing products were, under a duty to instruct (warn) applicators (generally farmers) of steps and precautions required to prevent human exposure to the toxic substance, in sufficient doses to cause adverse health consequences.
The manufacturers (defendants) failed to properly instruct applicators, regarding the steps and precautions required to prevent exposure to the toxic substance in sufficient dosages to cause the adverse health consequences the substance is known to cause.
Additionally, the manufacturers failed to instruct applicators steps and precautions required to prevent chemical trespass from overspray and chemical drift.
The defendants failed to fulfill their duties.
THE EVIDENCE and THE WHY NOW
After many years of industry resistance, the EPA recently acted to (among other things) cause the makers of paraquat containing products to revise their labels to contain instructions for use and other information’s which plaintiffs contend should have been in place prior to their suffering injuries due to the absence of such instructions and warnings.
Additionally, the EPA has placed a complete restriction on the spraying of paraquat containing products from crop dusters as well as large scale mechanically pressurized ground based spraying equipment.
EPA has completed review of the public comments, and in October 2020 released the Proposed Interim Decision. In this document, EPA is proposing the following protections to reduce exposure to paraquat.
Prohibiting aerial application for all uses and use sites except cotton desiccation; Prohibiting pressurized handgun and backpack sprayer application methods on the label;
Requiring a residential area drift buffer and 7-day restricted entry interval (REI) for cotton desiccation.
Limiting the maximum application rate for alfalfa to one pound of active ingredient per acre;
Requiring enclosed cabs or PF10 respirators if area treated in 24-hour period is 80 acres or less;
Requiring a 48-hour REI for all crops and uses except cotton desiccation; and
Adding mandatory spray drift management label language.