US Sugar Corp. v. Henson, 1D99-2798.

• Decision Date: 29 December 2000
• Docket Number: No. 1D99-2798.,1D99-2798.
• Citation: 787 So.2d 3
• Parties: UNITED STATES SUGAR CORPORATION, Appellant, v. G.J. HENSON, Appellee.
• Court: Florida District Court of Appeals

787 So.2d 3

UNITED STATES SUGAR CORPORATION, Appellant, v. G.J. HENSON, Appellee.

No. 1D99-2798.

District Court of Appeal of Florida, First District.

December 29, 2000.

As Corrected April 5, 2001.

Opinion on Denial of Rehearing April 20, 2001.

Dennis M. Campbell of Thomson, Muraro, Razook, Hart, P.A., Miami; David G. Peltan, U.S. Sugar Corporation, Clewiston; and Eduardo E. Neret of Akerman, Senterfitt & Eidson, Miami, for Appellant.

Raymond Michael Ripple and Donna L. Goodman, E.I. du Pont de Nemours and Company, Wilmington, DE; and William W. Deem of McGuire, Woods, Battle & Boothe, LLP, Jacksonville, for Amicus Curiae E.I. du Pont de Nemours and Company.

Scottie J. Butler, General Counsel, Florida Farm Bureau Foundation, Gainesville, for Amicus Curiae Florida Farm Bureau Federation.

Bernard J. Zimmerman, Kevin G. Malchow, Rusten C. Hurd and Marc A. Consalo of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for Amici Curiae Alico, Inc.; A. Duda & Sons, Inc.; Barron Collier Partnership; Jack M. Berry, Inc.; Hilliard Brothers of Florida, Ltd.; Stitt Ranch, Inc.; and Frierson Farms, Inc.

Oren S. Tasini of Fleming, Haile & Shaw, P.A., North Palm Beach, for Amicus Curiae Rhone-Poulenc.

H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.A., West Palm Beach, for Amici Curiae Florida Fruit & Vegetable Association; Florida Citrus Mutual; Chemical Manufacturers Association; Florida Fertilizer & Agrichemical Association; American Crop Protection Association; Gulf Citrus Growers.

Mary Ann Stiles and Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Tallahassee, for Amicus Curiae Associated Industries of Florida, Inc.

Nina A. Sachs, Esq. and Randy D. Ellison, Esq., West Palm Beach, for Appellee.

VAN NORTWICK, J.

In this workers' compensation appeal, the United States Sugar Corporation (U.S.Sugar), the employer and servicing agent, appeals an order of the Judge of Compensation Claims (JCC) determining that G.J. Henson, appellee and claimant, is permanently and totally disabled, and that his disability was caused by pesticide¹ exposure in the workplace. Claimant suffered paralysis of the phrenic nerve, a peripheral nerve which supplies the diaphragm, resulting in respiratory and other medical complications which have left claimant virtually confined to a wheelchair and dependent upon a ventilator. Although U.S. Sugar raises several issues on appeal, the only point raised which merits discussion is U.S. Sugar's contention that, under Frye v. United States, 293 F. 1013 (D.C.Cir.1923) and its Florida progeny,² the JCC erred in admitting the causation testimony of claimant's expert witnesses. Because our de novo review establishes that there is general acceptance in the relevant scientific community both (i) for claimant's general causation theory that certain pesticides to which he was repeatedly exposed over a long period of time can cause peripheral neuropathy, and (ii) for the differential diagnosis methodology employed by claimant's physicians, which they used to exclude the other factors that might cause his condition and to determine that his pesticide exposure specifically caused his injury, we affirm. We also certify a question of great public importance.

Factual Background

The following factual summary is based upon competent substantial evidence in the record. Henson worked for U.S. Sugar as an agricultural mechanic for 28 years, ending in 1996 when he became disabled. He spent most of his day in the field repairing equipment which had malfunctioned in field operations. When he was asked how often he was in the field when pesticides were being applied, he responded that "50 percent of the time I'd be out there for some reason."

In the area in which Henson worked, there were usually five machines spraying pesticides simultaneously. When one spray machine was not functioning, the other four machines would continue to spray. The spray would visibly drift, and Henson testified that he could smell the pesticides. In order to make repairs, Henson frequently would be required to lie on ground which had been recently sprayed with pesticides. In addition, U.S. Sugar added soap to the pesticides to cause the chemicals to adhere to whatever they touched, including Henson. Further, Henson's truck had no air-conditioning, requiring him to drive to and through the fields with the windows down. At the same time, airplanes conducting aerial spraying would sometimes cover his truck with spray.

The machines on which Henson worked sprayed the pesticides 2,4-D, ametryn and atrazine and were used throughout the year and washed only when it rained.³ When a pump broke, Henson would be required to take it apart with the pesticides inside. If he was required to remove the hoses on the machine, pesticides would cover his hands and clothes. When the hoppers which distributed the pesticides parathion and mocap (or ethoprop) malfunctioned, Henson would be required to dig the pesticide out of the hopper with his hands.

U.S. Sugar also constructed and used a makeshift mosquito fogger, which worked by dripping malathion onto a hot engine manifold to create toxic smoke, the creation of which is contraindicated by the manufacturer's material safety data sheet (MSDS). When the fogger would malfunction, Henson was required to take it apart and, as a result, malathion and its byproducts would cover his hands and arms.

Henson also testified that he was exposed to other pesticides, including paraquat and azodrin. In addition to the pesticides expressly mentioned by claimant, the U.S. Sugar spray records indicate that the following were also applied while Henson was employed: dursban/chlorpyrifos,⁴ guthion, diazinon, dalapon/dowpon,⁵ MSMA (methal arsenic acid), asulox, and polado. These spray records reflect the level and identity of the pesticides sprayed at Runyan Farm (where Henson worked) from 1984 to 1996. Spray records are not available for the period before 1984.

According to Henson, he was told these pesticides would not harm him and was not given any training on safety precautions for handling the pesticides. Although U.S. Sugar provided Henson with both leather gloves and latex gloves, he testified that the leather gloves were too cumbersome to use while repairing the equipment, and the latex gloves quickly ripped apart on the equipment. Further, he had no access to soap or wash facilities in the field and did not begin carrying water on his truck until 1994.⁶

Claimant was seen in the U.S. Sugar clinic from 1977 to 1996 with complaints of shortness of breath, nausea, gastritis and muscle weakness. In February 1996, he began seeing his physician for weakness, dizzy spells and shortness of breath. His physician, Dr. Harland, performed a chest x-ray which revealed an elevated right hemidiaphragm. Claimant was referred to Dr. Warshoff, a pulmonologist, who, through a variety of tests, diagnosed claimant with a paralyzed phrenic nerve. Claimant suffered several severe respiratory illnesses and was near death several times. He was treated with steroids and, as a result, developed diabetes. Because of his restrictive lung disease, secondary to phrenic nerve paralysis, claimant has problems clearing secretions, and because the area of the lung next to the paralyzed diaphragm does not absorb enough oxygen, that area of the lung has collapsed.

Claimant's Expert Causation Testimony

At the final hearing, claimant's medical causation testimony was presented by deposition, as is typical in workers' compensation cases.

Dr. Bowsher. Dennis J. Bowsher, M.D., is board certified in clinical pharmacology and toxicology, as well as internal medicine, cardiology, and nuclear cardiology. He was trained in toxicology at Northwestern University, and received a national research award from the National Institutes of Health in 1983-84.

He evaluated the claimant clinically, reviewed U.S. Sugar's spray records and the MSDS sheets for the pesticides identified. In formulating his opinions, he reviewed a number of major textbooks and references in the toxicology scientific community.

Based upon claimant's history and his own examination, Dr. Bowsher concluded that Henson suffers from sleep apnea, motor mononeuritis of both the phrenic nerve controlling the right lung diaphragm and the nerve controlling the movement of the proximal right leg, sensory neuropathies, including partial deafness, loss of sensation in the right leg, and patchy lower extremity peripheral neuropathy, as well as a tremor. He testified that within a reasonable medical certainty, Henson's profound neurological illnesses are directly caused by the pesticides he was exposed to, which included mocap (an organophosphate insecticide), MSMA or methal arsenic acid (an arsenical), 2,4-D, (a herbicide known by several trade names), and atrazine.⁷

Dr. Bowsher explained that insecticides are designed to kill through suffocation, by paralyzing the insects breathing muscles. He explained that "organophosphates transfer their phosphorous group to acetylcholine⁸ so at the nerve or muscular junction ... there is ... no enzyme to break it down, the acetylcholine builds and with build up ... there is either tremor or tetani contraction of the muscles." He opined that this biological effect is well-settled, relying upon Ernest Hodgson, Richard B. Mailman, Janice E. Chambers, Dictionary of Toxicology 274 (1988) (organophosphorous insecticides, like parathion and malathion, work by inhibiting acetylcholinesterase (ACHE) which blocks the hydrolysis of the ACHE substrate acetylcholine (ACH), a neurotransmitter. The resultant toxicity is caused by excess stimulation at the neuromuscular junction by an accumulation of acetylcholine.).

Dr. Bowsher explained that whether a small amount of pesticide or other chemicals would cause a response depends not only on the magnitude of the dose, but also on the nature of the dose/response curve for that chemical. Although he acknowledged...