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Courts At Odds on Damage Victim Suits, Supreme Court Passes
(Beyond Pesticides, July 1, 2003) The U.S. Supreme Court on June 27, 2003 let stand a Texas Supreme Court ruling in American Cyanamid Co. v. Terry Geye and Brandon Geye (No. 01-0008), which affirmed the right of Texas peanut farmers to sue a chemical company for property damage. The farmers argued that their crops were destroyed by a mixture of the herbicides "Prowl" and "Pursuit." The Texas court said that industry had left itself open to such lawsuits because federal law does not require pesticide manufacturers to submit their pesticide efficacy claims to EPA as part of pesticide registration (with the exception of pesticides that carry a public health claim). At the same time, the Supreme Court failed to take up another case, Harold Eyl v. Ciba Geigy et al., after the Nebraska Supreme Court overturned a $2.1 million injury award to a man who was severely injured by an herbicide. (See Public Citizen and Community Rights Counsel briefs.) Both cases hinge on the question of whether Section 136(v)b of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) preempts personal injury claims.

The cases provided the Bush Administration with the opportunity to support chemical industry protection from lawsuits in which victims seek compensation for damages they claimed were caused by pesticide products, reversing the government's longstanding position in support of the right to sue. The Solicitor General, Theodore Olson, said in a brief solicited by the Supreme Court, "On the merits of the question of FIFRA preemption, the United States has, on two occasions, filed briefs as amicus curiae urging that Section 136v(b) categorically does not preempt state-law actions seeking compensation for injuries from pesticide use, including claims arising from crop damage. That position no longer represents the view of the United States." For more background on these cases and other related cases, see Pesticide and Toxic Chemical News.

As the high court deliberated on the rights of citizens to seek just compensation for loses attributed to pesticide exposure, Alabama State Veterinarian Dr. Tony Frazier announced last week that phorate, an organophosphate that has been linked with increased risk of prostate cancer, is responsible for the deaths of 58 cows in Elberta, Alabama, reported the Mobile Register on June 27.

Jason Frank, owner of the cattle and the farm on which the incident occurred, had a state-authorized permit allowing him to use restricted pesticides, according to records obtained from state pesticide management records.

According to a study released in May by the National Cancer Institute, among men with a family history of previous exposure to six pesticides - chlorpyrifos, coumaphos, fonofos, permethrin, butylatem, and phorate - was associated with an increased risk of prostate cancer.

Furthermore, the EPA reports that phorate is extremely toxic to persons and animals who are in contact with it, even in small doses. In fact, in 1982, a 22-month old child died after playing near a can filled with a phorate-based pesticide, according to the EPA.

Frank notified state investigators of the cattle deaths on June 6 after discovering them the night before. When Frazier and other officials visited the farm on June 6, 2003, 56 cows were dead. Subsequently, two more fell ill and were euthanized.

According to Frazier, there is "no indications at this time" that the pesticide was applied improperly.