Facts

This is a toxic tort wrongful death and survival action in which it was alleged that plaintiffs' decedent was poisoned by the herbicide Paraquat in the course of his employment resulting in his dying from pulmonary fibrosis.

Norman Turner worked for the California Department of Transportation ("Caltrans") from 1972 to 2000. Caltrans is responsible for controlling weeds and vegetation along the state's more than 15,000 miles of highways and right-of-ways. From about 1972 to 1979, Turner worked in the vegetation control program as a spray applicator. In that job, he mixed and applied a variety of commercial pesticides and herbicides along Southern California highways. He was later promoted to a supervisory position in which he continued to be exposed to chemical products.

In the late 1990s, Turner was diagnosed with pulmonary fibrosis (a lung disease) and multiple myeloma (a cancer of blood forming tissues). He sued more than 25 defendants whose pesticide products were allegedly used by Turner during the course of his Caltrans career. His wife, Barbara Turner, sued for loss of consortium.

Eventually, all defendants settled except for Chevron U.S.A., Inc. ("Chevron"), which was the target defendant for its Paraquat product. Norman Turner died during a jury trial in Turner I. The jury returned a verdict for Chevron in Turner I.

On appeal, plaintiff Barbara Turner claimed the trial court erred when it granted Chevron's nonsuit motion and dismissed her strict liability design defect (risk-benefit test) cause of action. The trial court's ruling was based on federal preemption under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"). Under FIFRA, the United States Environmental Protection Agency ("EPA") registers pesticides for specific uses and approves the content of the label and related use and warnings materials. Registrants may not modify the content of the label without first obtaining EPA approval.

The California Court of Appeal reversed the trial court's ruling based on Bates v. DowAgrosciences, 544 U.S. 431 (2005), a United States Supreme Court case interpreting the scope of express federal preemption under FIFRA. Bates was decided while the instant case was on appeal.

The case was remanded for a new trial. In the meantime, plaintiffs Barbara Turner and Todd Turner, the decedent's son, filed a wrongful death lawsuit resulting from the death of Norman Turner. The cases were consolidated for trial.

From about 1965 to 1986, Chevron was the sole formulator and distributor of Paraquat in the United States. Paraquat is a quick-acting, non-selective herbicide that kills green plant material on contact and by translocation within the plant. It is used as a plant desiccant and defoliant. (It was used, with some notoriety, in the 1970s to destroy the marijuana crop in Mexico.) Paraquat is highly toxic and capable of causing death quickly upon ingestion. Since the late 1970s, it has been designated as a "restricted use" herbicide by the EPA, meaning only licensed pesticide applicators, and those working directly under such person's supervision, may use the product.

PLAINTIFFS' CONTENTIONS:
During trial on the consolidated actions, plaintiffs proceeded on causes of action for negligence per se for "misbranding" (a term of art under FIFRA) and strict liability for defective product design under the risk-benefit test. Before submission to the jury, plaintiffs dismissed the misbranding cause of action.

The plaintiffs claimed that Norman Turner's frequent dermal exposure and inhalation of Paraquat in the period 1972 to 1979 resulted in a subclinical chronic irritation/inflammation of his pulmonary alveoli (air sacs) which, in turn, resulted in a smoldering but progressive pulmonary fibrosis which became manifest in the late 1990s. The plaintiffs did not pursue a claim for Norman Turner's multiple myeloma.

The plaintiffs claimed Paraquat was defective under the strict liability design defect risk-benefit test because the risks associated with the product outweighed its benefit to society. In particular, they asserted that Paraquat, lone among herbicides, had killed thousands of persons from lung disease and the others, safer alternatives existed and that Paraquat was a product that Chevron should not have marketed.

The plaintiffs also claimed that Chevron intentionally concealed information it was allegedly mandated to provide to the EPA regarding adverse incidents; and intentionally concealed information that a laboratory it hired to conduct animal studies for submission to the EPA, in support of Chevron's Paraquat registration, had engaged in fraud.

DEFENDANT'S CONTENTIONS:
Chevron moved for nonsuit on the grounds that plaintiffs' strict liability design defect claim was, despite artful pleading, impliedly preempted under FIFRA and abrogated by the California Food and Agricultural Code. Chevron also moved to dismiss the negligence per se misbranding claim on the ground that it boiled down to an impermissible "fraud on the agency" argument. Lastly, Chevron moved to strike punitive damages. The trial court denied all of Chevron's challenges to plaintiffs' legal theories.

Chevron asserted that Norman Turner's lung disease was not caused by his antecedent Paraquat use because his dose of the Paraquat was very low and not toxicologically significant; and the nearly 20 year delay in his onset of pulmonary fibrosis symptoms showed that Paraquat could not have been a cause. Chevron also asserted that Norman Turner's pulmonary fibrosis was caused by microaspiration of his stomach contents resulting from a large hiatal hernia and severe gastroesophageal reflux disease.

Additionally, Chevron asserted that Paraquat has been registered for use in the United States since the early 1960s; has undergone multiple reviews of its effectiveness and safety by the EPA and California Department of Pesticide Regulation; that the product is safe and, per the statutory standard, poses "no unreasonable risk to man or the environment" when used in conformance with the EPA-mandated and approved warning label; that the tragic history of death associated with the product results from the accidental or intentional ingestion of the product (it was commonly used as a suicide agent); and that the EPA's designation of the product as "restricted use" took the product out of the hands of the public.

Settlement Discussions

Chevron made a pretrial statutory offer to Barbara Turner of $130,000. Prior to trial, the plaintiffs made a $5 million demand to Chevron. During jury deliberations, Chevron increased its settlement offer to $700,000. The plaintiffs rejected the offer and did not make a counter demand.

Damages

The plaintiffs sought punitive damages for fraud, oppression and malice. The trial court submitted the punitive conduct question to the jury. Turner's personal injury case was immediately transformed into a survival action after his death. Under California law, pain and suffering damages are not recoverable in a survival action although punitive damages are potentially recoverable. The parties stipulated that the amount of Norman Turner's lost earnings and medical expenses was $333,322.79, and that issue was not submitted to the jury. Barbara and Todd Turner's claims for non-economic damages were submitted to the jury. The plaintiffs sought a multi-million dollar award for non-economic damages.

Result

The jury returned a defense verdict. The jury found, on a special verdict, that Paraquat's design was not a substantial factor in causing harm to Norman Turner.

Other Information

Chevron will seek to recover its expert witness fees as costs because plaintiff Barbara Turner rejected Chevron's pre-trial statutory offer of judgment and did not achieve a more favorable result.