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WEST VIRGINIA RECORD

Friday, March 29, 2024

Calwell files California lawsuit against Dow over agricultural pesticide

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Chlorpyrifos

HANSFORD, California – A West Virginia attorney with a long history with chemical companies has filed a lawsuit against Dow and others regarding a boy’s exposure to an agricultural pesticide.

Parents Alba Luz Calderon de Cerda and Rafael Cerda Martinez filed the complaint on behalf of their 17-year-old son Rafael Cerda Calderon against Corteva Inc., Dow Chemical Company, the City of Huron, the City of Avenal, Woolf Farming Co. of California, “Applicator ID 1020351, Cottonwest and John A. Kochergen Properties Inc. The complaint was filed September 16 in the Superior Court of the State of California County of Kings.

Stuart Calwell of Calwell Luce diTrapano in Charleston is spearheading the case. Other attorneys at his firm as well as attorneys with Bonnett Fairbourn Friedman & Balint in San Diego and Phoenix also are helping with the case.


Calwell

Corteva is the rebranded successor of Dow Agrosciences. Woolfe Farming is a registered pesticide applicator in California, as is Cottonwest, John A. Kochergen Properties and the unknown entity identified as Applicator ID 1020351.

“Many years ago, we did a case against Dow Agrosciences,” Calwell told The West Virginia Record. “The story that was pitched by Dow in that case – and more cases later – was that once the parent compound chlorpyrifos gets inside an insect, it converts to chlorpyrifos oxon. That’s a phosphate, essentially like Sarin.”

Calwell said Dow got a patent for chlorpyrifos oxon but never could register it for use.

“The story they (Dow) told in earlier cases was that it’s OK because it’s only the amount of the parent compound the insect eats that is converted to the chlorpyrifos oxon,” he said. “It’s just a small amount in the dead bug. We successfully litigated against the company on that one.”

Earlier litigation by Calwell led Dow to stop selling chlorpyrifos for residential and school applications in the early 2000s, which left only agricultural applications. And, Dow stopped marketing it for use on tomatoes and apples, which were crops thought to be associated with consumption by children.

Still, chlorpyrifos and chlorpyrifos oxon are used on some crops today.

The boy in the California case grew up in the heart of the state’s Central Valley, one of the biggest agricultural regions in the world. According to the complaint, he has been diagnosed with Attention Deficit and Hyperactivity Disorder as well as mental retardation. The complaint says his injuries were caused by his exposure to chlorpyrifos and chlorpyrifos oxon even before he was born.

Further research has shown chlorpyrifos converts to chlorpyrifos oxon outside the body. It’s been found in air studies done by the State of California and in the homes of farm workers on walls, furniture and stuffed toys. It’s been found in water and town water supplies. It’s been found in blood samples of not just workers, but children and women who don’t work in the agricultural fields.

According to the 29-page complaint, the boy’s mother worked during her pregnancy in a packing house between Huron and Avenal in a “veritable ocean of pistachio orchards, lettuce, cotton, almonds and grapes – crops inundated with chlorpyrifos in this time frame.” It says she lived in an apartment complex located near agricultural fields as well when she was pregnant and during the boy’s first months of life.

The complaint says the tap water in that apartment was supplied by the City of Huron, which likely had chlorpyrifos or chlorpyrifos oxon in it. When they moved to the City of Avenal, it says that tap water also likely had the chemicals in it.

Calwell said he expects the case to be amended to include more remediation zones and maybe add more children in similar situations. He says his law firm has more than 50 children from California as clients who were allegedly injured by the chemical.

“It took us a couple of years to put this complaint together,” he told The Record.

The plaintiffs accuse the Dow defendants of negligence and strict products liability/failure to warn for “a pattern of conduct designed to hide the dangers of chlorpyrifos from its customers and the general public” from the 1980s to the 2000s. They accuse the City of Huron and the City of Avenal of negligence and strict products liability/manufacturing defect for breaching their duties to provide safe water to residents. They also accuse the applicator companies of negligent for allowing the spray drift and the overspray of the pesticide.

They seek compensatory damages for Rafael Cerda Calderon’s injuries, special compensatory damage for his loss of earning capacity and for medical expenses, special needs and care. They also seek damages for loss of consortium, mental anguish and sorrow suffered by his parents. They also seek punitive damages, pre- and post-judgment interest and other relief.

A spokesman for Dow said the company had not seen a copy of the lawsuit and declined comment.

In addition to Calwell, other Calwell Luce diTrapano attorneys working on the case are L. Dante diTrapano, Alexander McLaughlin and Christopher Hedges. Patricia Syverson and Van Bunch of Bonnett Fairbourn Friedman & Balint also are listed as plaintiff attorneys.

Superior Court of the State of California County of Kings case number 20C-0250

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