Pest control advisors play a critical role in both preventing and investigating pesticide spray drift incidents. But their recommendations to applicators and growers can put them in legal jeopardy when an herbicide impacts neighbors.
Paul Squires, who has nearly three decades of experience as an independent crop consultant and has served as an expert witness on about 230 claims, has a few tips to help PCAs protect themselves when insurance lawyers come calling. Squires shared his insights Monday at the annual conference of the California Association of Pest Control Advisors in Reno.
He detailed several cases when common sense errors have led to massive damages. One applicator confused sulfur dust with glufosinate, spraying 47 gallons of the herbicide on a winegrape vineyard in Sonoma County, effectively killing it. He had assumed he was following the dry powder’s label recommendation for pounds by pouring the pesticide into a bucket and weighing it on a scale.
“You just you can't make this stuff up,” said Squires.
Another vineyard was at stake in a separate case, when an organic grower decided to use a conventional herbicide, 2,4-D, and damaged the vines.
A 2014 incident in the Lodi and Stockton area, he explained, led to a $50 million settlement agreement six years later, after discovering the applicator had miscalculated an aerial herbicide application. The pilot covered thousands of acres a day while the wind was hitting up to 30 miles per hour.
“We saw stuff go a lot farther than we thought it might,” said Squires.
With such little crop protection, the corn grew only to knee height.
Squires hoped his advice to PCAs could prevent such drift incidents in the future and paint the industry in a more positive light. A narrative he often confronts in the wake of spray drift incidents is references to contamination samples measured in parts per billion, which inflates the perception of the exposure. He compared the minute measurement to finding a drop of Kool Aid in an Olympic-sized swimming pool or singling out one car in a line of vehicles stretching from San Francisco to Chicago. He said it never holds up in court, since judges only consider parts per million.
Squires stressed that careful documentation ahead of time could avoid serious legal challenges later. He once advised a friend preparing to spray his rice field to take drone images of a neighboring casino and its landscaping. The freshly planted ornamental plants were not taking well to their new home. Squires sent the photos to the county before the application and avoided a potential legal fight.
“The conversation gets really short when you have that evidence prior to the application taking place,” he said. “Records are extremely important.”
Yet he cautioned PCAs to be careful when emailing or texting, since the discovery process before a deposition goes to court can dredge up even deleted texts.
For PCAs testifying in a deposition, Squires warned that the attorneys may not be seeking the truth, but it is the PCA’s job to use the facts and show the documentation to back it up.
“In that process of what took place, it all started most likely with us,” he said. “We’ve got our boots in the field, our solutions, our recommendation to a grower or an applicator. And what took place after that sometimes it's out of your hands. But if your name is on the recommendation, you're going to be sitting in there answering the questions.”
He recently agreed to a two-hour deposition that ultimately stretched into five hours, with lawyers pinging him the same questions, hoping he would impeach himself—a legal tool they could wield if the case went to court.
Having witnessed so many PCA recommendations misinterpreted, Squires has made the controversial decision to not sign his name to any herbicide recommendations, avoiding liability for any subsequent actions.
Insecticides, however, are generally difficult to detect when it goes offsite, while “herbicides are going to tell on you.”
Instead, Squires does his job, investigates the field and makes a good recommendation that is by the label and the grower agrees with. But it turns into a grower recommendation at that point, leaving the farmer in charge of applying the pesticide or hiring an applicator.
“When something goes wrong, they can't come back to me and say, ‘Well, are your names on this recommendation?” he said. “I know that's an unpopular thing for me to say up here, but it's the truth.”
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He also stressed to PCAs to be specific in their recommendations. Rather than incorporating a boilerplate advisory on avoiding drift, instruct the applicator to not drift on the east side house or the canal.
“I know it takes time, but not as much time as if you end up in a deposition,” he said, noting that circumstances could pose risks the PCA cannot be unaware of. “When walnuts are worth 30 cents and [a farmer] can't break even, they're looking for somebody else to help pay for things.”
A neighbor could easily find a few contact spots with an herbicide, take a sample and “all of a sudden your phone rings and you're in a situation that you never thought you'd be in.” Even if someone else made a mistake, PCAs must have their facts and documentation to protect themselves.
He urged PCAs to not bow to pressure and force an application when the conditions are not right. Last Fall Squires spoke at a meeting for Spray Safe, a grower-sponsored program facilitating communication between farmers about pesticide applications. He noticed the ground was saturated and advised the PCAs present to take pictures if they plan to apply anything next to wheat, which is vulnerable to moisture. He got a call from an insurance company a week later after a Roundup mix killed a wheat field. Though the crop was already dying, no one had taken pictures ahead of time to document that.
“Unfortunately, we have to think beyond just what our job is,” he said. “You have to think about all of the pieces and all the people involved in that process.”
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