The farmworker parents of a girl with autism, obesity, and vision problems are suing
In the lawsuit filed Tuesday in California Superior Court for Kings County, parents Carmela Zamora Avila and Reymundo Arciniega Herrara say their daughter Britney, now 13, was exposed to chlorpyrifos in the womb, through contaminated drinking water, from exposed air, and by tainted dust in her home.
Chlorpyrifos, which has been linked to developmental problems in children, was pulled from the residential market in 2000. Starting in January, commercial application in California will be banned for nearly all types of the insecticide.
At the center of the case is a claim that chlorpyrifos degrades into its analog—chlorpyrifos oxon—when mixed with chlorine-treated water, or reacts with sunlight during and after application. Chlorpyrifos oxon is 1,000 times more dangerous than its parent and isn’t registered as pesticide because it’s a neurotoxin, the lawsuit said.
“The practical effect of this reality is that an application of chlorpyrifos to the fields and orchards of California’s Central Valley is an application of the unregistered neurotoxin, chlorpyrifos oxon,” the lawsuit alleges. “At no time did Dow provide any label warning regarding the dangers of oxon contamination related to the application of chlorpyrifos.”
A similar complaint was filed by the same attorneys in September.
Corteva was formerly Dow AgroSciences and Dow Chemical, which was the primary manufacturer of chlorpyrifos, marketed as Lorsban commercially and Dursban residentially.
The city of Avenal is named because it runs a treatment plant that delivered water in the region and used a canal from the California Aquaduct as its source. Companies John A. Kochergen Properties and Westside Harvesting, which applied chlorpyrifos, sprayed too high, allegedly causing the insecticide to drift, and failed to comply with water setback rules near the canal.
Drift from blowing winds and storm runoff contaminated the canal, and treatment likely didn’t fully remove chlorpyrifos oxon, according to the complaint.
The companies named in the lawsuit didn’t immediately respond to requests for comment.
While pregnant, Avila picked grapes, cleaned grapefruit fields, and worked in a packing house where crops were washed and Herrara worked in grape and pistachio fields. All drank the local water, adding to the exposure, the lawsuit said.
“Long-term, low-level chronic exposure presents a real risk to the developing nervous system,” said Stuart Calwell, an attorney at West Virginia firm Calwell Luce diTrapano, which is representing the family.
History of Problems
The Environmental Protection Agency in July 2019 announced it wouldn’t ban chlorpyrifos, saying that data supporting objections to the pesticide’s use was “not sufficiently valid, complete or reliable.” It said it would continue to monitor the safety of chlorpyrifos through 2022.
But chlorpyrifos, first registered in 1965, has long been on the radar of regulators. The EPA fined DowElanco, a joint venture between Dow and Eli Lilly, in 1995 for not reporting adverse incidents related to pesticides, including the chlorpyrifos brand Dursban.
In 2000 the agency ordered Dursban removed from residential use. Dow at the same time stopped marketing Lorsban commercially for apple and tomato crops, highlighted in the complaint as common childrens foods.
In 2002, the Department of Agriculture reported that water treated with chlorine lead to the quick conversion into chlorpyifos oxon, which is 1,000 times more toxic than its parent.
“This means that there is a risk that humans and pets may inadvertently be exposed directly to chlorpyrifos oxon when chlorpyrifos products that have been mixed with tap water are used,” the studysaid.
Dow actively and willfully misrepresented science and should have properly warned consumers about the dangers, the lawsuit alleges.
“Dow’s negligence, recklessness, and willfulness were the proximate cause of Britney’s developmental and neurological injuries, including autism, developmental delay, and compulsive behaviors,” according to the complaint.
Cause of Action: Strict products liability, including failure to warn, design defect, and manufacturing defect; negligence.
Relief: Punitive and compensatory damages for pain and suffering, loss of wages, medical expenses, and parental anguish.
Response: Corteva, Dow, city of Avenal and representatives for Kochergen Properties and Westside Harvesting didn’t immediately respond to a request for comment.
Attorneys: Stuart Calwell of Calwell Luce diTrapano PLLC and Patricia Syverson of Bonnett, Fairbourn, Friedman & Balint P.C. are representing the plaintiffs.
The case Carmela Zamora Avila, Reymundo Arciniega Herrara vs. Corteva, Inc., Cal. Super. Ct., No. 20C-0311, Complaint 10/27/20.