Plantiffs In Wrongful Death Suit Affirm Trial Request

BERLIN – Just two weeks after the defendants in a multi-million wrongful death lawsuit involving the alleged spraying of a toxic pesticide over a residential area in Berlin, which allegedly caused the death of one local resident, filed a motion asking a U.S. District Court judge to throw out the case, the victim’s family filed a response to the motion last week outlining several reasons the case should proceed to trial.

The suit, filed in Worcester County in 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 in the case, Air Ag Inc. of Laurel, Del., and the company’s owner, Robert J. Collins.

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

Two weeks ago, attorneys for the defense entered a motion for summary judgment essentially asking the federal court to throw out the case for a variety of reasons, not the least of which was the assertion several companies are permitted to aerially spray pesticides in the area and there was no proof the plane in question was owned by Air Ag. Perhaps more importantly, the defense’s motion for dismissal cites the state medical examiner’s final report which states Brittingham died of a pre-existing heart condition and that his death was not related to any real or perceived exposure to the dangerous pesticide.

Last week, attorneys for the alleged victim’s family filed a response to the motion for summary judgment pointing out several flaws in the document and citing many reasons why the case should advance to trial. While certain facts in the case are consistent in both motions, the two sides part company on several other important components of the case.

For example, the defense motion suggests nobody ever positively identified the aircraft in question as belonging to Collins and Air Ag, but a neighbor, David Hensley, who also claims to have been sprayed by the aircraft and has filed his own complaints with several state and local regulatory agencies, testified he carefully wrote down the plane’s call letters, which were later identified as belonging to Air Ag.

The defense’s motion for dismissal also suggests Brittingham never complained on any symptoms consistent with toxic pesticide exposure in the two week between the alleged incident and his death, but the plaintiff’s attorneys state in their response Brittingham complained of symptoms in the two week period leading up to his demise.

“Between June 9 and June 21, 2003, the day of his death, Mr. Brittingham complained that his eyes were dried or burning, he had a constant cough which caused pain and headaches. Subsequent to the spraying, his wife noticed discoloration around his face and chest.”

Even on the day Brittingham died, he exhibited symptoms consistent with a toxic exposure, according to the response filed by the plaintiffs in the case. “Mrs. Brittingham and a paramedic observed a brown fluid oozing from Mr. Brittingham,” the response reads.

The medical examiner’s report cites atherosclerotic cardiovascular disease with some arteries closed by as much as 80 percent as the cause of Brittingham’s death, and while neither party completely disputes the findings, the plaintiffs contend the victim died of complications caused by his alleged exposure to the pesticide. “The autopsy revealed that Mr. Brittingham’s right lung weighed 1,000 grams, his left lung 900 grams, the liver weighed 3,000 grams and the spleen 300 grams,” the response reads. “The weights for these various organs were nearly twice the weight expected of normal organs of this type. The dramatic increase in lung and liver weight, along with the increased weight of the spleen, is most consistent with a toxicant event.”

In yet another departure in each side’s interpretation of the facts, the plaintiffs allege Collins knew he was spraying in an unauthorized area. “The plaintiffs will allege and prove at trial that Collins became aware, through direct visual communication with Hensley, that he had been caught improperly discharging pesticide on an unauthorized target site,” the response reads. “Collins immediately fled the area and flew in the direct path toward the Brittingham farm just seconds away.”

In addition, Collins testified he was obligated to be at a distant location at a pre-arranged time for another job and that the pesticides to be applied at the distant location were different than the mixture used at the Watson Powell farm. For that reason, Collins had to discharge his cargo somewhere else in order to reload for his next appointment.

“There was literally insufficient time for Collins to have accomplished this task and plaintiffs allege Collins chose the first available field location in order to discharge the remaining load that otherwise would have been applied to the Watson Powell field had Collins not been caught and compelled to make his hasty escape,” the response reads. “It was for this reason that Collins discharged the load over the Brittingham farm.”