Federal Judge Dismisses Pesticide Wrongful Death Suit

BERLIN - Citing a flawed reliance on 'speculation and conjecture' in the plaintiffs' case, a federal judge this week threw out a multi-million dollar wrongful death suit involving the alleged spraying of a toxic pesticide over a residential area in Berlin, which the suit claims resulted in the death of one local resident in June 2003.

The suit, filed in Worcester County in June 2006 on behalf of the widow and children of the late Edward Louis Brittingham of Berlin and his estate, was seeking $5 million in compensatory damages from the defendants in the case, Air Ag Inc. of Laurel, Del. and the company's owner, Robert J. Collins. According to the suit, Air Ag Inc. was applying the pesticide by aircraft on a wheat field near Berlin on or about June 9, 2003 when the plane inadvertently sprayed what was left of its cargo on a residential area adjacent to the targeted fields.

The suit alleged Brittingham was exposed to the toxic pesticide when it drifted over his property and 'as a direct and proximate result of the negligence of the defendants, Edward Brittingham was inadvertently caused to inhale the toxic substance,' the suit filed in June 2006 reads. Brittingham died two weeks later on June 23, 2003 after falling ill upon returning from a picnic.

The autopsy cited atherosclerotic cardiovascular disease with some arteries closed by as much as 80 percent as the cause of Brittingham's death, and while neither party completely disputed the findings, the plaintiffs asserted in the lawsuit Brittingham's death was caused by complications brought on by his alleged exposure to the pesticide.

The victim's family filed the wrongful death lawsuit against Air Ag Inc. and Collins in 2006 and attorneys on both sides bandied back and forth on the facts of the case. While there were certain basic facts both sides agreed on, the two parted ways on several fundamental elements of the case.

In December 2007, attorneys for the defense filed a motion for summary judgment essentially asking a federal court judge to throw out the case, not the least of which was the assertion several companies are permitted to aerially spray pesticides in the area and there was no firm proof the plane in question was owned by Air Ag. Perhaps more importantly, the defense's motion for dismissal cited the state medical examiner's final report which states Brittingham died of a pre-existing heart condition and that his death was not related to any real or perceived exposure to dangerous pesticide.

In the end, however, it was the rather loose painting of the chain of events leading up to the victim's death that caused U.S. District Judge Andre M. Davis to grant the defense's motion for summary judgment on Tuesday, officially closing the case.

'Assuming that a reasonable juror could reasonably conclude the plaintiffs' decedent was indeed exposed to one or more toxic substances in June 2003, and further, that the level of exposure was sufficient to cause biological harm to the decedent, I am constrained to the view that no reasonable juror could reasonably conclude that it was defendants here who proximately caused that harm,' the Davis opinion reads. 'The plaintiff's theory rests on a seriously flawed chain of inferences.'

In a separate documented case, Air Ag Inc. did disperse pesticides on a farm roughly five miles away from Brittingham property on June 9, 2003 and was later issued a warning from state authorities about inappropriate spraying and record-keeping. In that case, the offending Air Ag Inc. plane was identified by it color and registration number.

However, the plaintiffs in the Brittingham case could not positively identify the aircraft that allegedly sprayed pesticides that caused the victim's alleged exposure. For example, Brittingham's son testified at deposition the aircraft was red in color and a family friend corroborated the description. The flawed description contributed to the decision to throw out the case.

'Moreover, that same witness affirmatively testified it was a red aircraft he observed; there is no dispute that defendants own or operate no red aircraft,' the opinion reads.

Davis concluded the evidence as presented would not past muster with a jury, which was chief among his reasons for dismissing the case. In his opinion, Davis stated the chain of inferences laid out by the plaintiffs failed to satisfy their burden to establish by reasonable doubt the defendants, Air Ag Inc. and Collins, were negligent and the alleged negligence caused Brittingham's death.

Davis said in his opinion the question is not whether there is literally no evidence, but whether or not there is any evidence upon which a reasonable jury could properly proceed to find a verdict for the party resisting summary judgment.

'A mere scintilla of evidence is insufficient to survive summary judgment,' the opinion reads. 'Because reliance on the conjecture and speculation which infuse plaintiffs' proffered inferences in this case would violate the bedrock principle that jurors must act reasonably, summary judgment shall be granted as requested.'