Sprayed Away
Did calling in an exterminator put health and home at risk?
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The house Angela Essenmacher owns is no longer a home. Afraid to live there, she ventures through the front door only when absolutely necessary. First, however, she pulls on long rubber gloves and straps a gray respirator with twin air filters over her nose and mouth for protection from the poisons she believes lurk inside.
It started with an invasion of carpenter ants more than four years ago. With the wood-eating pests threatening her yellow, two-story house in Royal Oak, she did what more than a million people do every year. She phoned the Orkin man for help.
And that, she now claims, is when her troubles truly began.
As a teenager, Essenmacher did more than just dream of owning a home some day. While still in high school she began socking away money for a down payment, banking earnings from jobs making pizzas, co-managing a video store and helping out at the engineering firm owned by her father. By the time she was 23, with a pair of associate degrees from Macomb Community College under her belt and a fledgling career helping design electrical systems for auto plants, she realized her goal. She bought a cozy two-bedroom home several blocks west of Main Street, for $72,000. She stripped off the old wallpaper and repainted. New light fixtures were put in, an alarm system installed, plumbing replaced.
“I was just enjoying my home, enjoying fixing it up,” she recalls. “I felt like being responsible for all those years had paid off. It was a great feeling, being able to go to my own home at night after work.”
Then the carpenter ants moved in. When they first became a serious problem in the summer of 1997, Essenmacher attempted to deal with them herself, putting out baited traps covered with a syrupy poison.
It didn’t work.
“I’d be sitting on my bed and ants would be crawling on my legs, or I’d be at home working on my computer and I’d go to take a sip of pop and there’d be a carpenter ant there in my drink,” Essemacher says.
So she decided to call in a professional. After considering several companies, she finally signed a contract with Orkin. With more than 400 branches in the United Sates, Canada and Mexico, and revenues of $652 million in 2000, it is one of the country’s two largest exterminators.
“I felt it was worth it to go with the bigger name,” she says. “They say they’re the world’s best.”
For $682 the company promised to come once a month for the next year and wipe out the ants. A contract was signed and work began in August 1997. Holes were drilled into the baseboards every few feet throughout the house so that pesticide dust could be pumped inside the walls to reach nests where the persistent pests bred. Cracks and crevices inside got a dose of liquid spray. An exterminator sprayed outside as well, creating a barrier to keep new ants from moving in.
At first, everything seemed to go fine. Essenmacher says she asked questions about any dangers the poisons might pose, but was told not to worry. One applicator, she claims, went so far as to equate the bug killer’s toxicity with that of the Wite-Out used to cover up typos in manuscripts.
“What did I know?” says Essenmacher now. “They were the professionals.”
Within months of signing on the dotted line, Essenmacher would come to sorely regret that trust.
According to allegations made in court records, Orkin’s pesticide applications corresponded with a malaise that wracked her body and eventually forced her out of her house. Inspectors would determine that some highly toxic pesticides had gotten into her home’s ventilation system.
Adding insult to injury, the fine print in her Orkin contract robbed her of her recourse in a court of law.
For its part, Orkin disputes every contention made by Essenmacher. The company contends that the cause of the contamination is still an open question, and it is adamant that there is absolutely no connection between Essenmacher’s health woes and the work it did. And Orkin doesn’t see any problem with denying Essenmacher her day in court.
Looking for numbers
How often do customers experience problems with the exterminators they turn to for help?
In the past decade, class-action lawsuits have been filed in a number of states against Orkin and its leading competitor, Terminix. But those disputes typically involve allegations of fraud or failure to adequately protect homes against pest damage.
Those cases are relatively easy to prove. If a company is supposed to be treating your home for termites, and the place collapses from bugs eating away at its timbers, there’s little doubt as to who’s at fault.
But allegations of illness are exponentially more difficult to prove. And trying to quantify the problem is almost impossible. According to experts interviewed by Metro Times, there is no comprehensive data regarding pesticide poisoning at homes and offices.
There’s no doubt regarding the dangers posed by pesticides. A report issued by the American Association of Poison Control Centers noted 88,880 incidents of pesticide exposure in 2000. Nearly 20,000 of the incidents recorded by the AAPCC involved treatment at a health-care facility. What those numbers don’t reflect is how many of those incidents involved professional applicators.
One reason comprehensive data isn’t available is the lack of uniform reporting requirements, according to Jerry Blondell, a statistician for the U.S. Environmental Protection Agency. Only 30 states mandate some form of reporting by hospitals, physicians or laboratories that identify evidence of pesticide-related illnesses, and just eight states require comprehensive investigations, reports Blondell. Michigan, he said, is not one of those states.
Adding to the difficulty of quantifying the problem, experts agree, is the high probability that most people suffering from pesticide exposure will never connect the cause with the effect.
“In many cases, people have no clue what has happened to them,” says Blondell. “I’d say it’s very safe to say that most cases of misapplication go unreported.”
Pollyanne Kapala, an enforcement officer for the Michigan Department of Agriculture, agrees that most incidents go unreported. Her agency is responsible for regulating all commercial applications of pesticides in the state, from field crops and orchards to Christmas trees and lawns.
She and her peers estimate that only about 2 percent to 10 percent of the “universe” of reportable incidents make it into the files.
From 1997 through 2000, the Agriculture Department received 124 complaints regarding professional exterminators, according to a review of data obtained by Metro Times through the Freedom of Information Act.
Here are some of our findings related to those 124 complaints:
• 57 involved allegations of human exposure.
• In 85 cases, the department determined that state regulations were violated.
• In 11 cases, letters were issued indicating that a company’s practices were, in Kapala’s words, “cause for concern.”
• Fines ranging from $250 to $6,000 were levied in 24 cases. Most of the time, the department let violators off with a warning.
Complaints most frequently involved human exposure, “misapplication” of pesticides or improperly licensed or certified applicators.
Case No. UI-98-77-09 fell within all three of those categories.
The person filing that complaint was Angela Essenmacher.
Symptoms
Essenmacher contends that problems began to arise after the second or third time the Orkin man came to assault the carpenter ants.
A short, petite woman with copper-colored hair and pale skin, the 32-year-old told Metro Times she has always been susceptible to illnesses. She’d had problems with maladies ranging from allergies to fatigue to depression.
But she claims to have experienced nothing like the combination of symptoms that developed in the late fall or early winter of 1997.
She remembers “being very thirsty. I couldn’t get enough to drink. And a lot of times I’d wake up in the middle of the night and just itch.”
Flu-like symptoms persisted, she says, and there were equilibrium problems. “I found myself doing things like walking into walls,” she says.
Most debilitating, though, was the fatigue.
“I was having a difficult time staying awake,” she says. “I was falling asleep during meetings at work. I’d go to work, come home and go to bed. I didn’t have a life that whole winter.”
When the alarm clock failed to arouse her in the morning, she rigged a timer to a photographer’s flood lamp that was positioned to shine on her face.
“I called it my Auschwitz light,” she says.
She visited her family doctor frequently. “He assumed I had mono,” she says. “Then I was diagnosed with Epstein-Barr.”
Her doctor prescribed anti-depressants.
Liver function tests were also abnormal, she says. (Liver function abnormalities may indicate the presence of toxins in the body.)
She was no longer the diligent housekeeper she had been in the past. But when warm weather rolled round in April 1998, she summoned the energy to give her home a thorough cleaning. Then a cold snap hit, and her furnace kicked back on.
She says that’s when she awoke to find a white powder on furniture that had just been cleaned.
The discovery triggered a dreadful epiphany.
“It was like, bam!,” she recalls.
Pesticides.
It took a number of phone calls, but with persistence she was finally directed to the Department of Agriculture, which dispatched an inspector to her home on April 23.
During that visit, according to a Department of Agriculture report, Essenmacher accused Orkin, which was still making monthly visits, of misapplying pesticides.
According to the state report, the applicators maintained that they did nothing improper.
Essenmacher also told the inspector about her health problems.
“Since Orkin Pest Control company has been treating her home she has suffered from chronic fatigue and shortness of breath,” states the report. “She has been diagnosed with Epstein-Barr Syndrome and is allergic to many materials.”
Inspectors, according to their report, found white powder on the basement walls, on the furnace’s cold-air return in the dining room and on furniture in Essenmacher’s bedroom on the second floor.
Five samples in various parts of the house were taken. Although multiple pesticides were applied over the months, according to Orkin billing statements, the Department of Agriculture tested for only one product — Ficam D, a powder whose active ingredient is bendiocarb.
Bendiocarb belongs to a class of insecticides known as “reversible cholinesterase inhibitors.” Such poisons, explains the EPA’s Blondell, disrupt essential nervous system enzymes, interfering with the ways nerves interact with each another as well as with organs, glands and muscles.
EXTOXNET, a Web project of the cooperative extension offices of Michigan State University and three other universities, describes bendiocarbs as “highly toxic” if ingested or absorbed through the skin.
On May 22, inspectors received the results of testing done on the five samples taken from Essenmacher’s home. The results: Everywhere they checked, bendiocarb was found.
Violations alleged
On July 15, the Agriculture Department accused Orkin of two violations. Each one carried administrative fines of up to $1,000 or prosecution as a criminal misdemeanor with fines of up to $5,000 if Orkin were found guilty.
The state alleged that Ficam D should not have been introduced into the air or sprayed on exposed surfaces. Photos taken by inspectors show it covering the walls of Essenmacher’s basement. According to state reports, Essenmacher told inspectors that one Orkin employee “applied a white powder to the walls and ceiling in the basement using a sweeping motion with his arm. He also applied material inside of the cold air return in the dining room,” introducing the poison into her home’s ventilation system.
Because of bendiocarb’s potential for acute toxicity, Ficam D’s label warns that it should not be applied to exposed surfaces or introduced into the air. (It was taken off the market in December 2001.)
That employee, according to state records, was not certified to be treating “structural pests” such as carpenter ants, forming the basis for the second alleged violation.
The Agriculture Department alleged errors as well. Documents show that on one occasion the wrong type of application equipment was used. In at least one other instance, important information such as amounts of pesticide used were not documented.
When Orkin agreed to pay for a cleanup, the state decided not to levy fines nor cite the company for any of the alleged violations. And no formal violations were issued.
The Department of Agriculture’s Kapala says that, in general, encouraging a company to foot the bill for a cleanup — which directly benefits a homeowner — is preferable to issuing a fine, which would go into the state’s coffers.
As a result of its discussions with the state, Orkin made a “good-faith offer” to cover cleanup costs up to $3,535.95. But Orkin also wanted to select the company that would do the work, and refused to have the whole house cleaned. “I felt like they wanted to put a Band-Aid on the problem,” Essenmacher says. The company that calls itself the “world’s best exterminator” had lost her trust.
She moved out of her house, and began seeing a doctor specializing in environmental medicine.
She also contracted with a private company to conduct a second test for pesticides. According to its report, along with bendiocarb, the home’s ventilation system and attic contained a second pesticide called piperonyl butoxide, another chemical applied by Orkin.
She hired an outside firm, at a cost of more than $10,000, to decontaminate the entire house and its furnishings. The Department of Agriculture tested the house again afterward, finding traces of bendiocarb still on the furnace’s cold-air intake. More cleanup was done. Then, in January 1999, Essenmacher, who had been out of her house for 10 months, living with family in Warren most of the time, returned home.
Essenmacher says that she remained in her home for 2-1/2 years. Along with seeing medical specialists she began receiving deep-tissue massages in an attempt to detoxify her body. Organic foods were the focus of her diet.
Still, she says, she couldn’t fully recuperate. Last June, on the advice of her attorney, she had the furnace’s air filter tested by an environmental toxicologist.
According to a letter written by environmental toxicologist Robert K. Simon, “a large number of pyrethrin and pyrethroid type pesticides were found, including a high level of cyfluthrin. …” That is another of the pesticides used by Orkin at Essenmahcer’s house.
Essenmacher was advised to move back out of the house and to limit her visits there to essential matters. She was also told to wear the respirator, gloves and protective clothing when going inside. Heeding the advice, she moved back in with her brother and has been living there since, keeping up mortgage payments and maintaining the house in Royal Oak like some sort of absentee landlord.
“To some extent,” she says. “I’m feeling better than I was. But I don’t feel completely better.”
She sits on her brother’s couch, her hair pulled back, neat and trim in rimless glasses and a black sweater buttoned up to her neck. Stacks of documents are piled up on the coffee table in front of her and in files alongside.
As the conversation wears on, she loses her place from time to time. It takes several moments of concentrated effort to recover.
Proving that her illnesses are the result of Orkin misapplying pesticides and contaminating her home won’t be easy. The company is unwavering in its contention that there is no possibility that Essenmacher became ill as a result of its actions.
“There is no evidence that the micrograms of this substance asserted to be found by the MDA pose any health risk at all,” asserts Orkin attorney Barbara H. Erard. “And there is no basis in medicine or science for connecting anything the MDA found in her home with her claimed illnesses.”
To obtain an independent opinion, Metro Times contacted Richard Lipsey, a Florida toxicologist who specializes in pesticide issues. With a resumé listing a variety of corporations, including Orkin and Terminix as clients, Lipsey says that he has provided expert testimony in hundreds of cases, with participation evenly split between plaintiffs and defendants.
Provided details of Essenmacher’s case, Lipsey said she is “exhibiting classic Ficam (bendiocarb) poisoning. He said also that the levels recorded by the Department of Agriculture are “high enough to cause symptoms in people with compromised immune systems and the elderly.”
Docs and torts
According to Dr. Michael Harbut, a nationally recognized environmental toxicologist and a Wayne State University faculty member, “neuropsychological problems” can follow exposure to neurotoxins such as bendiocarb. “My clinical experience is that I’ve often seen these sorts of ongoing effects associated with pesticide exposure,” he says. He is also not surprised that other pesticides have been detected in the home. In fact, he says, it’s rare for only one substance to be involved in such cases.
And although studies are done to learn the toxic effects of individual substances, little is known about what happens when exposure involves two or more chemicals.
He’s also seen another effect — one observed from inside courtrooms when he is called upon to testify on behalf of patients.
“A big part of the issue is that these pesticide companies are enormously wealthy, and as a result, they are enormously powerful. So you have someone whose house is sprayed, and they get sick. They have these enormous medical bills, they have these enormous expenses from being forced to leave their homes. And then they get in court, and you get to the time where proof has to be provided, and the lawyers will ask, ‘Don’t you have these sorts of chemicals all over the place anyway, polluting the environment? How do you know this problem is the result of what our applicator did and not from eating perch?’”
What has Angela Essenmacher concerned now, on top of everything else, is the fact that, when the time comes to consider questions like that in her case, it will not be a jury of her peers considering the evidence.
Instead, lawyers will be the judges.
Clause for concern
The contract Essenmacher signed with Orkin in August 1997 contained a clause Essenmacher didn’t pay much mind to.
It stated: “Any dispute arising out of or relating to this agreement or the services performed under this agreement or tort based on claims for personal or bodily injury or damage to real or personal property shall be finally resolved by arbitration administered under the commercial arbitration rules of the American Arbitration Association.”
“When I signed the contract, I didn’t know exactly what arbitration meant,” says Essenmacher.
She does now.
Last year she went to federal court in an attempt to have that clause invalidated. She wanted a jury to decide her case, not a panel of lawyers.
She’s not the only one concerned about the issue.
Since its passage in 1925, the Federal Arbitration Act has allowed contractual disputes between companies to be settled out of court. But in 1995, in a case involving the Terminix extermination company, the U.S. Supreme Court established that mandatory arbitration clauses could be used in contracts between companies and consumers. Since then, the practice has escalated rapidly, according to F. Paul Bland, a staff attorney for the group Trial Lawyers for Public Justice.
Testifying before a U.S. Senate subcommittee two years ago, Joan Claybrook, head of the national consumer group Public Citizen, argued that the escalating use of such clauses “are designed to give businesses significant advantages in their disputes with consumers and employees. They threaten the very basis of our justice system — equal justice under the law.
“We may be witnessing the birth of a private judicial system,” warned Claybrook.
The danger, she argued, is that arbitrators are handed all the power of judges with none of the public accountability. Decisions made by judges are open to public scrutiny, and judges can be impeached or voted out of office. That’s not the case with arbitrators. Nor can their decisions, by and large, be appealed.
Hand in hand with that lack of public accountability is the lack of a public record.
When Essenmacher’s lawyers, Donnelly Hadden and Steve Huff of Ann Arbor, argued that the clause should be invalidated because steep up-front arbitration fees — at least $2,000 — made it difficult for his client to proceed, Orkin offered to pick up the tab.
But beyond dispute was the fact that the ability of lawyers to compel release of evidence regarding a company’s past practices and problems through the discovery process was significantly curtailed by going to arbitration. Orkin’s own lawyers, Barbara H. Erard and Shari M. Borsini of Detroit’s high-powered Dickinson Wright firm, argued that point. It’s one of the factors that makes arbitration a more streamlined process than a trial.
And U.S. District Court Judge Bernard A. Friedman was unmoved by arguments that violations cited by the Department of Agriculture should invalidate the contract.
In the end, Friedman’s ruling was uncomplicated and straightforward: “… the reality is that Plaintiff will get a full and fair resolution of her claims in an arbitration forum. [Essenmacher] voluntarily signed an agreement that contained an arbitration clause and accepted the benefits of Orkin’s services under that contract. In accordance with the strong federal policies favoring enforcement of arbitration clauses, Plaintiff should be held to her end of the bargain.”
“As far as I’m concerned, they broke that contract when the told me they could benefit me, and they didn’t. I didn’t think I was signing away my right to have a jury trial, but that’s what I did,” says Essenmacher, who is unconvinced that arbitration offers a level playing field. Adding to her concern is Orkin’s insistence that just one arbitrator, instead of a three-person panel, decide her case.
“They put that in there to benefit themselves,” she contends. “I don’t see how it benefits me.”
The way she sees it, it’s one more brick added to the burden she’s been carrying for more than four years.
“I’ve got so many things on my mind, it’s overwhelming,” she says, weariness tugging at her voice. “I’ve been really having a tough time. I’ve been seeing a therapist who wants to put me on medication, but I’ve been resisting, because I don’t want to put more chemicals into my body.”
Adding to that depression are the occasional trips to the house that used to be her home.
“I go there, and I look through the window at my
things,” she says. “I can see them, but I can’t touch them. I want to curl
up on that afghan in there that my grandmother made me, but I can’t. It’s
all been really hard.”
Read Curt Guyette's related stories in this edition:
Curt Guyette is Metro Times news editor. Call 313-202-8004 or send e-mail to cguyette@metrotimes.com.
Original story: http://www.metrotimes.com/editorial/story.asp?id=2936
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