Manufacturers, distributors, and sellers of products like fungicides and insecticides have, as do all manufacturers, the duty to provide products that are free from any potentially dangerous defect, that is, to see that there is no unreasonable risk of personal injury or property damage to persons using the products for purposes which the manufacturer may reasonably expect they will be employed and also to those whom the manufacturer may reasonably expect to be endangered by such probable use and to warn users of the potential dangers of their products. Insecticides and fungicides encompass a broad range of products, from agricultural applications to lice treatment for your children and flea and tick products for your pets.
To be included within the duty to warn, the dangers of the insecticides or fungicides must be foreseeable to the manufacturer or other provider, but not expected to be within the knowledge of the users or third parties who may come in contact with the product. Manufacturers have a duty to warn consumers about the dangers of even abnormal use of their products if it is reasonable to assume that such abnormal use will occur. Manufacturers must also provide warnings of any dangerous deficiencies in their products of which they become aware after the sale of the product. This continuing duty to warn arises if the manufacturer learns of a significant number of product failures, unanticipated dangerous uses, or a high injury rate involving the use of the product. If a manufacturer does not know the whereabouts of all of the dangerous products that have been sold, it may have a duty to provide warnings in publications with a wide circulation that are likely to be read by users of the insecticides or fungicides.
A plaintiff attempting to prove a products liability claim may rely on expert testimony as to the product’s defectiveness, evidence that demonstrates the product’s dangerousness, and evidence of other injuries involving the product. The defendant, on the other hand, may seek to offer expert testimony on the safety of the product, evidence of compliance with government and industry standards, and evidence of custom in the industry. Defendants in insecticide or fungicide products liability cases may also attempt to argue that the plaintiff does not have a legitimate claim because he or she assumed the risk, by knowingly using a potentially toxic product. Or the plaintiff may have been contributorily or comparatively negligent, such as by using the product in a careless manner. If, despite these arguments, the plaintiff is successful, he or she will be able to recover damages to compensate for the injuries suffered. In some cases, punitive damages are awarded if the manufacturer’s conduct shows a complete indifference to the safety of product users.
Various statutes apply to the sale and manufacture of agricultural products like fungicides and insecticides, and if the plaintiff can prove that the defendant violated the applicable statutes, that evidence may establish that the defendant was negligent and support the plaintiff’s claim for damages. The federal Insecticide, Fungicide and Rodenticide Act (FIFRA) contains a preemption provision, which expressly precludes the states from imposing or continuing in effect any requirements for labeling or packaging in addition to or different from those required under FIFRA. Many courts have held that FIFRA preempts any state-law tort actions based on allegations of failure to warn and/or inadequate warning labels or packaging.
Although environmental law has progressed a lot over the past three decades, there continues to be significant disagreement about the dangers that toxic chemicals pose to humans and animals. Nonetheless, use of these chemicals continues, since without them there could be a dramatically negative impact on the nation’s food supplies, as well as other potentially adverse consequences. Despite the Environmental Protection Agency’s best efforts, it has been impossible to keep up with the approximately 1,000 new chemicals that are developed each year. In fact, since World War II over 70,000 different synthetic chemicals have been developed, many for use in fertilizers, pesticides, and related products, and only a small fraction of these chemicals has been extensively studied.
Unfortunately, property damage, such as crop loss, and personal injuries may be the inevitable result of the inability to keep pace with insecticide and fungicide development and production. Personal injuries resulting from insecticide and fungicide exposure range from minor to life-threatening, including irritation, mutation, birth defects, cancer, cardiovascular problems, respiratory problems, neurological disorders, and even death. If you believe you have suffered these or any other adverse health consequences as a result of insecticide or fungicide exposure, see your doctor at once.
It may also be prudent to seek the advice of a seasoned products liability attorney. A lawyer with experience in products liability law can help you determine whether you may have an insecticide- or a fungicide-related products liability claim. Your attorney can advise you on whether you have a valid case and can represent you throughout the entire legal process to ensure that you achieve the best possible resolution of your lawsuit.
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