Company Seeks $5M Wrongful Death Lawsuit Dismissal

BERLIN – The defendants in a multi-million dollar wrongful death lawsuit filed in Worcester County in June 2006 involving the alleged spraying of a toxic pesticide over a residential area in Berlin filed a motion for summary judgment, essentially asking a U.S. District Court judge to throw out the case.

The suit, filed in Worcester County Circuit Court in early June 2006 on behalf of the widow and children of the late Edward Louis Brittingham of Berlin and his estate is seeking $5 million in compensatory damages from the defendants named in the case, Air Ag Inc., of Laurel, Del. and the company’s owner Robert J. Collins.

Brittingham died in June 2003 after allegedly being exposed to a highly toxic pesticide. According to the suit, Air Ag Inc. was applying the pesticide by airplane on a wheat field near Berlin on or about June 9, 2003 when the plane inadvertently sprayed its toxic cargo on a residential area adjacent to the targeted fields.

The suit alleges Brittingham was exposed to the toxic pesticide when it drifted over his property and “as a direct and proximate result of the negligence of the defendants, Edward Brittingham was inadvertently caused to inhale the toxic substance,” the suit filed in June 2006 reads. “He became immediately ill and ultimately died shortly thereafter as a direct and proximate result thereof, with no negligence on his part contributing thereto.”

The civil suit filed a year and a half ago has been slogging its way through the discovery period and pre-trial posturing without any significant activity until last week when attorneys for the defendants filed a motion for summary judgment asking a U.S. District Court judge to dismiss the case in favor of his clients. The motion for summary judgment presents a set of facts far different than the civil suit first filed against Air Ag and Collins in June 2003.

Instead, the defense motion asks for a dismissal based on a variety of facts it alleges are true including but not limited to the chief medical examiner’s autopsy report, which determined Brittingham died of a pre-existing heart condition and the decedent never sought any medical attention in the 12 days between his alleged exposure and his death nor did he ever complain of any symptoms between his exposure and his death.

The motion for summary judgment also states Brittingham, his son or another acquaintance could not identify or describe the plane in question although they all reported seeing it in the area in days around the alleged exposure. The motion also states there were as many as six other companies authorized to apply pesticides by airplane over the area at the time of the incident.

Perhaps the most significant part of the motion for summary judgment deals with Brittingham’s apparent health between his alleged exposure and his death 12 days later. The plaintiffs allege Brittingham became “immediately ill and died a short time later,” but the statement of facts in the defendants motion suggests otherwise.

For example, after Brittingham was allegedly sprayed, he went in the house and took a shower, and although he complained his skin and eyes stung, he ate dinner with his family as usual, and the next day, went to work with his son as usual and did not complain of any symptoms.  A long-time family friend, Dan Schultz, testified he saw Brittingham days after the alleged spraying but before he died and Brittingham made no complaints about having any physical problems, nor did Schultz notice any.

On June 21, 2003, a full 12 days after Brittingham was allegedly sprayed, he went to a picnic. When he returned, he complained of being tired and laid down on a couch. He was subsequently found in distress and he stopped breathing. Paramedics arrived, provided CPR and took Britt to hospital. In emergency room, he was found to be in cardiac arrest and was not able to be resuscitated.

An autopsy performed by the Chief Medical Examiner’s Office concluded Brittingham died of natural causes as a result of atherosclerotic cardiovascular disease. The autopsy further revealed Brittingham had one coronary artery blocked up to 80 percent and another artery blocked 60 percent.

While the plaintiff’s civil suit alleges Brittingham became immediately ill, the motion for summary judgment filed last week suggests neither the decedent nor his family ever gave any indication he was sick in the days leading up to his death.

“From the moment Brittingham was allegedly sprayed until he died 12 days later, he did not seek any medical attention. Neither Brittingham nor his wife Carol called the poison control center in connection with his alleged exposure,” the motion reads. “They did not call the police or sheriff’s department or dial 911. They did not call neighboring farmers to find out what he had been sprayed with and by whom.”

The “by whom” is another issue for debate according to the motion.