I recently defended a pest control company that had been sued by a woman who claimed to have a condition known as Reactive Airways Dysfunction Syndrome (commonly referred to as “RADS”) as a result of an alleged exposure to pesticide that had been applied by my client at the woman’s workplace. For those of you who have never heard of that medical condition, RADS is a severe asthmatic condition that results from a one-time heavy exposure to a chemical, vapor, gas, or other similar substance that permanently damages a person’s lungs and causes that person to have chronic long-term respiratory problems. The diagnosis of RADS requires the patient to have had no prior history of respiratory problems, the onset of asthmatic symptoms that occur within 24 to 48 hours after the exposure, and persistent breathing difficulties and respiratory problems that do not respond to standard asthmatic medications for a period lasting more than two months. In some cases, RADS can be a permanent condition. In this case, the alleged exposure came on December 9, 1999, and the trial of the case occurred almost five years to the date thereafter. At the time of trial, the woman claiming RADS was still having severe breathing difficulties, was in an electric wheelchair, and was wearing an oxygen mask.

The scary part about RADS is that there is no defined list of what can and cannot cause it. RADS merely requires that a person be exposed to some type of chemical, vapor, gas, or “other similar substance” that can cause lung injury. However, virtually any airborne substance in our environment can injure a person’s lungs if the person is exposed to sufficient quantities of the substance. No one would argue that a liquid pesticide that somehow becomes airborne is incapable of injuring a person’s lungs if inhaled in sufficient quantities. In fact, certain medical articles suggest that pesticides can cause RADS. Nevertheless, prior to this trial, I was not aware of any reported cases where a pesticide had been determined by a jury to have caused RADS. That is why this trial was so important, not just locally, but nationally.

In the case in question, the female worker (the “Plaintiff”) allegedly was exposed to Talstar, which Plaintiff testified had been applied by the pest control technician around her desk in the reception area at her office. Talstar is a synthetic pyrethroid whose active ingredient is bifenthrin. Although the pest control technician denied that he had ever applied Talstar around the Plaintiff’s desk, for purposes of the trial and disproving the Plaintiff’s theory of recovery, I had to assume that Talstar had been applied around the Plaintiff’s desk. Although the Plaintiff did not complain of illness or breathing problems while the pesticide was being applied, approximately five minutes after the technician left the Plaintiff’s workplace, the Plaintiff began experiencing severe breathing difficulties. Various co-workers at the office testified that the Plaintiff was not only having breathing problems and coughing uncontrollably, but also had a red rash on her face. Plaintiff was immediately rushed to a hospital emergency room by a co-worker, where she was treated as if she was having an allergic reaction.

The temporal relationship between pesticide application and the onset of Plaintiff’s symptoms was a very difficult fact to overcome in the case.

Plaintiff was treated at the emergency room on the day of her alleged exposure but was released that evening. She was treated in the emergency room with steroids, as the doctors assumed she had had an allergic reaction to the pesticide.

No medical tests were performed to confirm that a pesticide had actually caused Plaintiff’s reaction. Nevertheless, the doctors noted “pesticide exposure” in their medical records as the cause of Plaintiff’s reaction based on the history reported to them by her.

Over the next few days, Plaintiff went to various emergency rooms complaining of severe breathing difficulties. In each case, the doctors assumed that pesticide exposure was the cause of Plaintiff’s symptoms based on the history she gave to them. The numerous references in medical records to pesticides as the cause of Plaintiff’s condition was problematic for the defense of the case.

After being seen at several emergency rooms, Plaintiff began treating with a local pulmonologist, who very quickly diagnosed Plaintiff with a “classic case of RADS.” At the time of trial (almost five years after the alleged exposure), that pulmonologist maintained that Plaintiff had RADS, was unable to work, would never be able to work again, would always have RADS, would need constant medical attention, and had a shortened life expectancy. The Plaintiff essentially had not worked since the date of her alleged exposure.

Plaintiff’s medical bills at the time of trial were in the hundreds of thousands of dollars, and the future medical cost projections were staggering. The lowest demand to settle the case before and throughout the trial was $5,000,000.

The appropriate treatment for a chronic respiratory condition like RADS is steroids. However, steroids have numerous harmful side-effects. At the time of trial, Plaintiff had steroid-induced diabetes, steroid-induced hypertension, steroid-induced obesity, and a variety of other steroid-induced problems. Plain- tiff physically appeared to be in poor health. The internist who had been managing Plaintiff’s diabetes testified that Plaintiff likely could never come off of steroids and that Plaintiff’s life expectancy had been shortened as a result of the side effects associated with chronic use of steroids.

We defended the case at trial on three different levels. First, we argued that the technician had not misapplied the pesticide, even assuming the pesticide had been applied as testified to by the Plaintiff (i.e. around her desk while she was sitting at the desk). That position was supported by the testimony of trained company employees, the Department of Agriculture, and the formulation chemist who had created the Talstar formula, submitted the toxicological data to the EPA, and had drafted the Talstar label. Our primary goal, of course, was to prove label compliance in the application of the pesticide.

Our second line of defense was that, even assuming Talstar had been applied around the Plaintiff’s desk, Plaintiff could not have been exposed to sufficient airborne levels of the pesticide to cause Plaintiff to have RADS. Although Plaintiff presented the testimony of an expert entomologist who testified that, in his opinion, the pesticide applied around the Plaintiff’s desk had become airborne, drifted up over Plaintiff’s desk, and been inhaled by the Plaintiff, the Talstar formulation chemist refuted such testimony. According to the chemist, bifentrin, the active ingredient in Talstar, has such a low vapor pressure it would have been virtually impossible for Plaintiff to have inhaled sufficient quantities of Talstar to cause her injury.

Our final level of defense was perhaps the most in- teresting. While Plaintiff contended that she has RADS (a respiratory condition), we argued that Plaintiff does not have RADS but, instead, suffers from a condition known as Vocal Chord Dysfunc- tion (“VCD”). VCD is not a respiratory condition like RADS. It is a condition where, for a variety of reasons, the muscles around the vocal chords go into spasm, causing the vocal chords to act paradoxically. In other words, the vocal chords close when they should open and open when they should close. This causes the person to feel like they cannot breathe. In other words, VCD mimics asthma.

VCD can be caused by a various factors, including gastroesophogeal reflux disease, however, it is most often associated with psychological factors. Psychological factors that have been known to cause or contribute to VCD include anxiety and panic disorders. In this case, in addition to demonstrating that Plaintiff had a preexisting history of gastroesophogeal reflux disease, we were able to offer evidence that Plaintiff suffers from some anxiety and panic issues.

Plaintiff’s prior medical history allowed us to suggest to the jury that Plaintiff’s breathing difficulties were due to VCD associated with panic and anxiety, rather than RADS caused by an exposure to a pesticide. Prior to her alleged exposure in 1999, Plaintiff had three incidents where she allegedly went into anaphylactic shock as a result of being bitten by fire ants or being stung by a bee. Anaphylactic shock is a severe allergic reaction that causes respiratory swelling, extreme breathing difficulties, and, sometimes, death. It must be treated immediately to avoid severe medical consequences.

Before her alleged pesticide exposure, Plaintiff had twice been bitten by fire ants and once stung by a bee, all of which allegedly caused her to go into severe anaphylactic shock. On each occasion, she was unable to breathe, became unconscious, and had to be rushed to a hospital emergency room for treatment. After the third such episode, Plaintiff was directed to a local allergist to be tested for allergies. Such testing revealed that, although Plaintiff is allergic to fire ant venom, she is not allergic to bee stings. Hence, according to the allergist (who I called as a witness at trial), Plaintiff’s “allergic reaction” to a bee sting had to be nothing more than the consequence of a severe panic attack. In other words, her emotional panic about being stung by a bee physically affected her to the point where she collapsed, was unable to breathe, and had to be rushed to the hospital, even though she was not actually allergic to bee stings. Such testimony was obviously favorable to our position in the case.

Also of significance to the case was the fact that, prior to her alleged exposure, Plaintiff was involved in an incident where she and a co-worker were eating a pack of Twizzlers candy and allegedly discovered dead bugs in the candy. Plaintiff testified that she became sick as a result of eating the dead bugs. Ultimately, she made a personal injury claim against the Brock Candy Company for the incident. Although we were unable to bring up the claim against Brock Candy Company at trial, we were certainly able to present the incident as evidence that Plaintiff possibly suffers from some type of “bug phobia.” Anxiety to bugs, in my opinion, was a legitimate issue in the case.

As a final note, one of the underlying themes presented at trial was that Plaintiff’s primary pulmonologist (who had early on diagnosed Plaintiff as having a “classic case of RADS ”), had misdiagnosed and mistreated Plaintiff’s condition. As noted, the appropriate treatment for RADS is steroids. On the other hand, steroids are not the appropriate treatment for VCD and carry with them numerous harmful side effects. VCD is generally treated with psychological counseling, speech therapy, and/or medications to eliminate gastroesophogeal reflux disease (if the patient has gastroesophogeal reflux problems). I aggressively attacked the treating pulmonologist on the witness stand as having misdiagnosed Plaintiff’s condition early on, having mistreating her with steroids for many years, and being in a position at trial where he could not back down from his diagnosis of RADS because, to do so, would be to acknowledge that he has been committing malpractice on Plaintiff for years. Such cross-examination proved to be effective. According to several jurors, it appeared that the “wrong Defendant” may have been at trial.

I am pleased to report that, after seven days of trial, the jury rendered a Defendant’s verdict and awarded the Plaintiff no money damages. The trial was a huge victory for pesticide manufacturers and the pest control industry. Had Plaintiff been successful at trial, it is likely that numerous other lawsuits would pop up around the country against pest control companies and pesticide manufacturers alleging RADS as a result of misapplication of pesticides.

Unfortunately, the trial result is not yet final. Plaintiff has filed a Motion for New Trial and asked the trial court to set aside the verdict. If that Motion is denied, Plaintiff will likely appeal the case to the Georgia Court of Appeals. Hence, the decision likely will not be final until 2006, at the earliest.

Nevertheless, as things now stand, it is a tremendous victory for the industry.