Malathion spraying is assault, suit says 

By TODD KLEFFMAN Jul 24 2001

A federal class action lawsuit, filled on behalf of West Tennesseans who claim to have been harmed by cotton spraying, requests that the boll weevil eradication program "cease and desist the spraying of malathion on persons and their private properties and lands without permission."

The lawsuit, filed in U.S. District Court in Memphis earlier this month by Covington attorney Houston Gordon, claims the spraying program violates the civil and constitutional rights of residents by subjecting them to the pesticide.

"Such spraying of malathion, a poison, upon the person and property of the class plaintiffs amounts to assault and battery, trespass, invasion of privacy, and taking of liberty and property without due process of law," the lawsuit states.

The lawsuit does not ask for specific monetary damages. It seeks "compensatory and punitive damages as may be determined by a jury."

The suit names at least 43 defendants, including state Agriculture Commissioner Dan Wheeler, state administrator Boyd Barker, the Southeastern Boll Weevil Eradication Foundation and several of its employees, and numerous pilots involved in spraying malathion on cotton.

None of the defendants has yet responded to the suit. The first meeting in the case is scheduled next month in Memphis before U.S. District Judge John P. McCalla.

Officials with the state ag department and foundation declined to comment on the lawsuit Monday on the advice of attorneys. Gordon could not be reached.

There are 18 original plaintiffs signed on to the lawsuit, including Mindy Haywood of Chester County and Robert and Diane Cole of Friendship in Crockett County. Other plaintiffs live in Covington, Millington, Ridgely and Mason.

Haywood said Monday that plaintiffs have been advised not to discuss the case.

The lawsuit is the second filed against the boll weevil program this month. Hardeman County farmer John McKeen is seeking $1 million from the program, alleging that a malathion spill at an airport near his farm has poisoned his well and pond water and his cattle and made his family sick.

The class action lawsuit is likely to find several supporters around the region from among the hundreds who claim that malathion has made them sick and miserable. Wayford Washburn of Carroll County was excited to learn of the action Monday, just as he was planning to meet with neighbors to talk about hiring a lawyer of their own.

"It's about time. I've taken about all of this I can stand," said Washburn, who said spraying near his home on Hinkedale Road had made himself, his wife and neighbors sick, and killed his honey bees and a young cow. "It's poison. It's killing us all, and something needs to be done about it. If we don't get something done in court, there'll be war right here in West Tennessee."

The lawsuit defines potential members of the class as "All persons who ... lived and/or worked near agricultural fields where cotton was grown during the 2000 crop year and upon whom or upon whose lands and/or chattels the defendants sprayed or released malathion poison without permission or consent."

The lawsuit further states that "the members of the class are so numerous and geographically dispersed that naming them all would be "impractical. Class plaintiffs do not know the exact size of the class, but estimate that it will exceed 500 persons."

The $100 million eradication program, funded mostly by farmers, began a year ago with the goal of wiping out weevils in 575,000 acres of cotton in West Tennessee. About 100 aircraft and a handful of ground sprayers are being used to apply malathion in repeated doses to the cotton fields. The spraying resumed in June this year and is scheduled to continue into October. A third and fourth year of the spraying program are tentatively planned, depending on the success of the effort.

Malathion is an organophosphate pesticide that attacks the nervous system. The federal Environmental Protection Agency lists it as safe for aerial application if used properly, but the pesticide has been controversial across the country where massive spraying has been conducted.

Shortly after the planes went up last summer, people began complaining that the spraying was making them sick and forcing them indoors. Dozens of calls came into The Jackson Sun, and 166 official complaints were logged with the state ag department, which is responsible for administrating and monitoring the program. Investigations found 18 misapplications of the pesticide last year, and 12 pilots were fined.

The lawsuit contends that malathion was applied "in excess of the lawfully approved amounts and in manner inconsistent with its labeling. This caused the plaintiffs to suffer personal injuries and illnesses that required hospitalization and medical treatment. They also lost animals, fish and produce, and "became prisoners in their own homes."

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