Friday, September 26, 2008

Victory for NoSpray Activists

JUDGE RULES METRO SPRAY TRUCK DRIVER NEGLIGENT IN PEDESTRIAN SPRAYING INCIDENT

Nashville, Tennessee – Judge Thomas W. Brothers ruled in Circuit Court (Docket #04C2963) on Wednesday that John Primm of the Metro Public Health Department breached his duties when he sprayed citizen Emmett Clifford with the pesticide Anvil 2+2 while spraying a Donelson neighborhood for mosquitoes on October 15, 2003. Judge Brothers stated that the department had a practice of turning off the spray when pedestrians or vehicles were visible near the truck during spraying and that this was wise. He added that it is clearly foreseeable that people would not want to be sprayed with a pesticide. John Primm was charged with the duty to shut off the spray and therefore he was found to have breached that duty and to be negligent in spraying Clifford with Anvil 2+2 twice.

Clifford testified that he was returning home when he spotted the flashing yellow lights of a vehicle stopped on the side of the road. By the time he realized that it was an insecticide spray truck, the fog had entered his vehicle through his open window. Immediately, his eyes and exposed skin began to burn and he gasped for breath. He was a couple of hundred feet from his house, so he parked in front of his house and jumped out. He stood in his front yard rubbing his eyes, coughing, gagging and gasping for air. As he did this, the spraying truck made an unexpected 180-degree turn and headed toward his home. Before he could get inside to safety, the truck passed by and sprayed Clifford with insecticide again.

Primm stated under oath that he had always turned off the spray when pedestrians or vehicles were near and the manufacturer of the pesticide suggested this practice during his annual trainings. The supervisor of the Pest Management Department, Brent Hager, also testified that it was the department’s practice to turn off the spray when pedestrians or vehicles were near.

Citizen Rachel Sumner took the stand and said she had attended a meeting at the Health Department in August, 2003. At this meeting, two Fisk Park residents notified health officials that a Metro driver had failed to shut off the spray when pedestrians were plainly visible on the sidewalk. She stated that Hager had identified the driver as Primm in an Open Records request.

Sumner said she also had obtained documents from the Health Department’s files in 2004 showing that Hager was notified about two separate incidents of pedestrian sprayings in a West Meade neighborhood on October 9, 2003 - one week before Clifford was sprayed. Hager identified Primm as the driver in one of those incidents. Photos were also produced during the trial showing Primm’s white Dodge Ram 4x4 with the spray on and a man in the front yard in a North Nashville neighborhood in 2006.

Clifford was awarded costs for his emergency room visits and court costs. Clifford's attorney Mary Leech stated that a quirk in the law precluded Mr. Clifford's treating physician from testifying about causation. Therefore, the Court was limited to the testimony of the Health Department’s toxicologist who testified that it was impossible for Anvil 2+2 to cause any injury or adverse reaction whatsoever despite the fact that the label clearly indicates that the pesticide can cause injury. However, Primm testified that he wears a face mask and gloves when he works close to Anvil 2+2. Medical proof of causation is required to recover the damages Mr. Clifford suffered from the spray. Leech added that her client is considering whether he will appeal the decision in order seek compensation for the injuries he sustained. The manufacturer of Anvil 2+2 settled with Clifford out of court.

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