Overcoming pesticide company's discovery abuse, counsel obtains verdict for victim of fire ant attack

Law Reporter, Oct 2002

OVERCOMING PESTICIDE COMPANY'S DISCOVERY ABUSE, COUNSEL OBTAINS VERDICT FOR VICTIM OF FIRE ANT ATTACK.

Devers v.. Greystone Ret. Cmty., Ala., Madison County Cir. Ct., No. CV-1999-2477, June 28,2002.

Lucille Devers, 79, was a resident in an assisted living facility. When she complained of itching and burning pains in her legs, she was taken to a doctor, who diagnosed her as having ant bites. Lucille, who suffered from depression and delusions, believed that she had "stickers" in her legs because Providence was punishing her.

The following day, a facility employee entered Lucille's room and found her covered with fire ants. The ants had entered her mouth, nose, ears, and genital and execretory organs. Although the employee immediately washed the ants off in a shower, Lucille had suffered hundreds of bites. Her psychiatric problems were aggravated, and she was hospitalized for 84 days. Her medical expenses, which were covered by Medicare, exceeded $100,000.

On her behalf, Devers's daughter, Jeanne Hupfer, contacted family friend and ATLA member S.A. "Bud" Watson Jr., of Huntsville, Alabama, to file suit against the facility. Watson associated ATLA member Thomas S. McGrath, also of Huntsville, who concentrates on pest control litigation. They named Terminix International, the company that provided pest control services to the facility, as a codefendant. Another ATLA member, Huntsville lawyer Ralph Hornsby Jr., assisted Watson and McGrath.

As next friend for Lucille, Jeanne alleged that the facility breached the standard of care by not keeping its premises pest-free, as required by state law. The facility knew it had a fire ant infestation, she charged, yet failed to act.

Jeanne alleged that Terminix's treatments were inadequate to prevent the infestation. Investigation revealed that the company typically spent less than 10 minutes per month at the facility although properly performed pest control treatments took at least 45 minutes.

Watson notes that the first major hurdle was bringing the case against Terminix to trial. A clause in the firm's service contract with the facility required that disputes be arbitrated. Terminix argued that this provision governed plaintiff's claim. Plaintiff contended that her claim was for negligence, not for breach of contract. Terminix knew that residents were aged and infirm when it made the service contract with the facility, she asserted, and owed a duty of care to them. The court denied Terminix's attempts to enforce the arbitration provision.

One of the greatest challenges in the case, McGrath maintains, was contending with Terminix's substantial discovery abuse. The company initially refused to respond to any discovery requests, then obstructed plaintiffs efforts to obtain the most basic documentation and learn the identities of fact witnesses. After a year, Terminix began producing minimal documentation and discovery responses but blocked plaintiffs attempts to depose any defense witnesses until three weeks before trial, he says.

In response, McGrath sought ex-employees, locating the company's former pest control manager two weeks before trial. Although that manager had responded to the attack on Lucille and treated the room, McGrath says, Terminix had never disclosed his identity to plaintiff.

Once obtained, the company's records demonstrated that in the five years preceding the attack, it had never devoted the time needed to properly treat the facility. Plaintiff's counsel were able to show that the service call right before the attack lasted only 12 minutes, and the call immediately after the attack took only nine minutes.

A jury awarded $5.35 million, including $3.5 million in punitive damages, for which defendants are equally liable. Terminix's posttrial motions are pending.

Plaintiff's experts included Arthur Appel, entomology, Auburn, Alabama; Bruce Alverson, entomology, Mobile, Alabama; Frankie Preston, psychiatry, Huntsville; and Kevin Butler, assisted living management, Baton Rouge, Louisiana.

Terminix's expert was Jerome Goddard, medical entomology, Jackson, Mississippi. The facility's experts were John White, assisted living management, Huntsville; and Roger Gold, entomology, Dallas, Texas. Defendants also retained Stoy Hedges, pest control, Memphis, Tennessee.

McGrath says he has no illusions that the verdict will change how Terminix does business. "The company has not changed a thing about the way it treats assisted care facilities, hospitals, day care centers, or schools. Since the case, it has simply changed its contract to exclude liability for fire ants."

Reflecting on the case, Watson said, "Both defendants operate businesses that require an investment of trust by customers. When businesses choose to engage in that type of endeavor, honoring that trust-not profit-should be paramount."

Documents in Devers v. Greystone Ret. Cmty. are available through the Court Document Sets section in the back of this issue, courtesy of Mr. McGrath.