Bradley v. Brown

• Decision Date: 17 May 1994
• Docket Number: Civ. No. 2:85 CV 958 JM.
• Citation: 852 F. Supp. 690
• Parties: Cherrye BRADLEY, Frances Roy, and Maryann Welch, Plaintiffs, v. Pickens BROWN and The Kill Company, Defendants.
• Court: U.S. District Court — Northern District of Indiana

852 F. Supp. 690

Cherrye BRADLEY, Frances Roy, and Maryann Welch, Plaintiffs, v. Pickens BROWN and The Kill Company, Defendants.

Civ. No. 2:85 CV 958 JM.

United States District Court, N.D. Indiana, Hammond Division.

May 17, 1994.

COPYRIGHT MATERIAL OMITTED

Terrance L. Smith, Julie R. Fouts, Smith and Debonis, East Chicago, IN, for plaintiffs Cherrye L. Bradley, Frances Roy and Maryann E. Welch.

Thom W. Kramer, Buoscio Pera Kramer and Nowak, Merrillville, IN, for defendants Pickens Brown, The Kill Co., Warren Harrin and U.S. Steel Corp.

ORDER

MOODY, District Judge.

From November 29, 1993 to December 1, 1993 the court conducted a bench trial in this case. Based on the following findings of fact and conclusions of law, the court now rules in favor of Cherrye Bradley, Frances Roy, and MaryAnn Welch and ORDERS the clerk to enter judgment against Pickens Brown and The Kill Company, jointly and severally, in the amounts stated in the conclusion of this decision. To the extent that any finding of fact is subsequently deemed to be a conclusion of law, the court adopts it as such; to the extent that any conclusion of law is deemed to be a finding of fact, the court adopts it as such. See Miller v. Fenton, 474 U.S. 104, 113-14, 106 S.Ct. 445, 451-52, 88 L.Ed.2d 405 (1985).

I. Findings of facts.

A. Undisputed facts.

There are few facts undisputed in this controversy. The parties do, however, agree to the following:

At all times relevant to this action, Pickens Brown was the owner and sole operator of The Kill Company. In this capacity, Brown did contract extermination work for U.S. Steel Corporation "USX" at its Gary Works plant in Gary, Indiana. Responding to repeated employee complaints about insect bites in the file room of the Accounts Payable Building at the Gary Works plant, Brown applied pesticides to the file room on April 20, 1983. Brown conducted the application in the file room between 6:00 a.m. and 6:30 a.m.

Prior to applying the pesticides, Brown sealed the room. The room itself has three entrances: two have doors, the third does not. Brown taped plastic garbage bags over the entrance without the door. When Brown finished the pesticide application, which included fogging the room, he left the Gary Works facility. An air circulation system was then activated. That system recirculated the air within the building, rather than moving the air outside.

Within an hour after the application was completed, employees who had begun arriving to work at the building became nauseous and displayed other symptoms of pesticide exposure. In all, 33 employees, including Roy, Bradley, and Welch had to be treated at the U.S. Steel dispensary. All were given blood serum cholinesterase and other tests to determine what was causing their symptoms. All 33 employees were released later the same day.

B. The court's findings of fact.

The court makes the following findings of fact based on its determination of the various witnesses' credibility and on other evidence, as noted:

The court finds Brown's testimony concerning the pesticide application largely credible. It finds the following facts based on that testimony.

In April 1983, Brown received several calls from USX relating that women working in the file room of the Accounts Payable Building were being bitten by unseen insects. He sprayed the file room with pesticides on more than one occasion in order to eliminate the culprit insects. On April 19, 1983, Brown met with Steve McFatridge, a supervisor in the accounts payable department at USX. McFatridge told Brown that if Brown could not rid the file room of the insects, USX would take the job to Orkin, one of Brown's competitors. Brown assured McFatridge that he could do the job. Brown expressed his desire to do so on a Saturday, when the Accounts Payable Building would not be in use. McFatridge, however, told Brown that union rules would make it difficult to have someone at the building to let Brown in on a Saturday. He suggested a weekday morning. He assured Brown that the file room would be ventilated prior to any employees arriving for work. Ultimately, Brown agreed to do the application the next day.

Pursuant to his meeting with McFatridge, Brown showed up at the Accounts Payable Building on April 20, 1983 sometime near 6:00 a.m. As he had done on at least one of his prior visits, Brown made a crack-and-crevice application using Diazinon 4E, an organophosphate pesticide. A crack-and-crevice application involves spraying the diluted Diazinon along the baseboards and in the corners of the room. Brown also sealed the file room, as described above, and fogged it using Pyrtox, a pesticide composed primarily of pyrethrins and mineral oil, in a kerosene base.

The plaintiffs maintain that Brown fogged with Diazinon. The court's finding that Brown did, in fact, fog the file room with Pyrtox, in a kerosene base, is founded upon:

• Brown's credible testimony that he fogged with Pyrtox,

• Brown's credible testimony that the Diazinon 4E he used for the crack-and-crevice application was water, not oil, soluble and that the fogging machine he used cannot fog water-based pesticides,¹

• Toxicologist Joanne Cardiff's testimony that reduction of blood serum cholinesterase is the first sign of Diazinon exposure and that the serum cholinesterase levels measured in the 33 exposed individuals in this case was not sufficiently reduced to indicate exposure.

• Dr. Alfred R. Johnson's testimony that the Diazinon screening test given Roy on April 20, 1983 was negative. Ex. NN at 31-32 (Johnson deposition).

• Cardiff, Dr. Richard L. Lipsey, see Ex. 22 at 129 (Lipsey deposition), and Dr. Tevor Novak's testimony that the primary symptoms (headache, breathing difficulties, dizziness, and nausea) displayed by those in the Accounts Payable Building on April 20, 1983 are consistent with exposure to Pyrtox in a petroleum distillate carrier, i.e. kerosene and mineral oil.

The court finds this testimony more persuasive than the contrary evidence offered by the plaintiffs. Perhaps most importantly, in the war of experts the court finds Cardiff's explanation of events more credible than that offered by Lipsey. For example, the court accepts Cardiff's opinion that inhaled Diazinon would inhibit blood-serum cholinesterase rather than Lipsey's that inhaled Diazinon would not act as a blood-serum cholinesterase inhibitor.

The court also rejects plaintiffs' effort to undermine Brown's credibility with the testimony of Margaret Hill, the janitress in the Accounts Payable Building. Hill let Brown into the building on April 20, 1983. Hill testified that she did not recall seeing Brown with any sprayer that could be used for a crack-and-crevice application. Hill's testimony is inconclusive, however; she stated frankly that she did not observe all of Brown's activity in the building. Accordingly, she cannot speak with authority about what Brown did not do.

Finally, the court gives short shrift to the probity of the statement attributed to Brown in the USX accident report filed the day after the incident. In that report, Brown is reported to have said that he "decided to fumigate the file room using a fogging machine and a concentration of Diazinon ... in a kerosene base." Ex. 1 at 1. Brown denied that he made this statement. Brown asserted that he would not have used the term "fumigate," which he stated has a very different meaning among pesticide applicators than does "fog." He emphatically denied telling anyone at USX that he fogged with Diazinon. The writer of the report did not testify. The court finds Brown's denial of the report credible.

The directions for Pyrtox state that the applicator should

close windows and doors and shut off ventilating systems.... Keep the area closed for at least 15 minutes. Vacate the treated area and ventilate before reoccupying.

Ex. B-1. It is undisputed that the file room was sealed and no ventilation was operating during the fogging. Brown testified that McFatridge told him that the building could be ventilated after the procedure. Brown testified that there was another man, a USX employee, present in the building and that he assumed that this man would turn the ventilation on when he left. Brown testified that he did not know whether the ventilation fans were on when he left at around 6:30 a.m. He testified that he relied on USX to assure the building would be properly ventilated. The court accepts this testimony as credible.

It is, as noted, undisputed that the purported ventilation system in fact recirculated the air in the Accounts Payable Building. This spread the Pyrtox fog about the building rather than removing it. Consequently, when employees arrived at the building sometime after 7:00 a.m. they were exposed to airborne Pyrtox in a kerosene base.

Bradley, Roy, Welch, and Elizabeth Larsen, another employee at the Accounts Payable Building on April 20, 1983, each testified to what happened next. The court finds their testimony in this regard credible.

Roy arrived first among these. Notwithstanding the fact that she noticed a odiferous mist in the air inside the building, she sat at her desk and poured and drank a cup of coffee. She then began to feel nauseous. Her chest was hot. Her eyes watered. She went outside to get some air, but then returned again to the building. She soon left the building again, and this time she "blacked out." When Larsen arrived, Roy was standing in the building's foyer. Larsen thought Roy "looked bad": Roy was pale and gasping.

Larsen entered the building. There was a haze inside and her eyes stung. She was nauseous and, after entering and leaving the building several times, she vomited.

Bradley arrived at the Accounts Payable Building around 8:00 a.m.. There was a group of employees gathered outside. She saw Roy passed out. She saw Welch pacing back and forth outside the building. Bradley nonetheless entered the building at the direction of a union "grievance person." Sh...