Court OKs lawsuits over home bug spray
Two babies reported to have become sick by exposure to EPA-approved pesticides

Bob Egelko, Chronicle Staff Writer

Wednesday, August 15, 2001

Pesticide companies can be sued for making and selling home bug sprays that allegedly sickened children, a state appellate court ruled yesterday.

A Court of Appeal panel in Los Angeles rejected arguments by Dow Chemical and other manufacturers that the U.S. Environmental Protection Agency's approval of the pesticides for residential use barred damage suits under state law.

The court said that EPA-approved warning labels could not be challenged but that a jury could still decide whether a chemical's dangers to human health outweighed its benefits.

"We believe that the burden of the cost of serious injury actually caused by pesticides should . . . be borne by the pesticide manufacturers and distributors rather than the innocent consumers," wrote Justice Michael Nott. He noted, however, that the family had not yet proved the causes of the illnesses.

"This industry has been fairly well insulated from liability," said Raphael Metzger, attorney for a San Fernando Valley family who claimed ant spray caused brain damage to their unborn child and sickened their baby daughter. "This case is a significant inroad to obtaining redress for people who have pesticide-induced injuries."

Calls to attorneys for Dow Chemical and FMC Corp., another manufacturer in the case, were not immediately returned.

According to the suit, Chad and Michelle Arnold's landlord had their home and yard sprayed several times in 1997 to get rid of an infestation of ants. The pest control company used Dursban, Dragnet and Baygon, all EPA-approved for home use, though the EPA withdrew its approval of Dursban for home and school use last year.

The Arnolds said their daughter Alexa, who was born six months after the spraying started, had suffered a stroke in her mother's womb, causing mental retardation and partial paralysis. Her sister Ashley, 18 months old when the spraying began, suffered pancreatitis and hepatitis and was hospitalized several times, the suit said.

A Superior Court judge dismissed the suit, citing the EPA's approval of each product, but was overruled by the appellate court, which said the case should go to trial. The court said a state Supreme Court ruling last year, in a suit by walnut growers, established that federal approval protected pesticide companies against claims that warning labels were inadequate, but not against other claims of dangers or defects.

The Arnolds were not arguing that the pesticides' labels should be improved,

but were instead alleging that, because of their contents, "they cannot safely be used in the home," the appellate court said.

E-mail Bob Egelko at begelko@sfchronicle.com.