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December 20, 1982

RICHARD LEANDER FEREBEE, JR., et al., Plaintiffs,


The opinion of the court was delivered by: OBERDORFER

This products liability case is before the Court on defendant's motion for judgment notwithstanding the verdict. On November 4, 1982, a jury of six rendered a verdict for plaintiffs in the amount of $60,000. *fn1" Because the Court is convinced that there was sufficient evidence as a matter of law to support the jury's verdict, defendant's motion is denied.

 I. Facts of the Case

 Richard Leander Ferebee, the original plaintiff in this case, began work as an agricultural worker at the Beltsville Agricultural Research Center (BARC), an installation of the United States Department of Agriculture, in Beltsville, Maryland, in 1967. Mr. Ferebee's job frequently required him to spray various chemicals on the plants, including insecticides and herbicides, both inside the greenhouses and, in the summer, outside in the fields. Mr. Ferebee began spraying paraquat, a herbicide, in the summer of 1977. He used the product periodically during the outdoor growing seasons of 1977, 1978, and 1979.

 Mr. Ferebee learned how to mix and spray paraquat primarily through the oral instructions and demonstrations of his supervisors and co-workers, rather than from the written instructions on the label. Whether Mr. Ferebee ever read the label at all later became the subject of considerable controversy between the parties. *fn2"

 When Mr. Ferebee sprayed paraquat in the fields, he frequently got the dilute spray on his skin, *fn3" most frequently when he used his hands to shield plants while he sprayed weeds growing around them. In his testimony, he described two incidents of significantly greater exposure. The first incident occurred soon after he began using paraquat. On that day, he spent several hours walking behind a tractor that was spraying paraquat. His head and bare arms became drenched with spray. *fn4" At the end of the day, he began to feel dizzy and exhausted. When he went home, he did not even wash or change his clothes, but fell asleep instantly. However, the dizziness and other symptoms did not persist, and he later returned to work.

 Mr. Ferebee's other major single exposure to paraquat occurred later the same season. On that day, he was spraying weeds in the field, using a hand-held sprayer. *fn5" He had been spraying for some time when he noticed that the sprayer was defective and had leaked paraquat solution all over his pants. He stopped spraying and cleaned up as much as possible; however, he was not able to change his clothes until he went home.

 Mr. Ferebee testified that he always washed his hands after using paraquat and was very careful not to touch his face when he had paraquat on his hands, because his co-workers had warned him that paraquat was dangerous if swallowed. *fn6" However, BARC did not have shower facilities for its employees, and Mr. Ferebee rarely, if ever, changed his clothes during the work day. *fn7"

 Up until late 1977, Mr. Ferebee was in reasonably good health, although he did suffer from some health problems. For example, he had a life-long sinus problem. He was overweight during the mid-1970's, and he suffered from high blood pressure. However, according to the doctors who later treated him, none of these problems were life-threatening or seriously disabling, although he did suffer from some shortness of breath. He had no known lung problems before he began spraying paraquat.

 In late 1977, Mr. Ferebee began noticing a marked change in his physical condition, notably a substantial increase in shortness of breath. During the next four and a half years, his condition deteriorated steadily. He was hospitalized several times, and consulted a number of doctors, including Dr. Muhammad Yusuf, a practicing pulmonary specialist, and Dr. Ronald G. Crystal, Chief of the Pulmonary Branch of the Heart, Lung and Blood Institute of the National Institutes of Health. His condition was diagnosed as pulmonary fibrosis. After taking Mr. Ferebee's history *fn8" and performing a number of tests, *fn9" the treating physicians identified paraquat poisoning as the cause of the pulmonary fibrosis. All other known causes of pulmonary fibrosis were ruled out, *fn10" and, as Drs. Yusuf and Crystal testified at trial, the diagnosis of paraquat poisoning was made, to a reasonable degree of medical certainty, long before Mr. Ferebee's death.

 Mr. Ferebee instituted this suit in 1981, against Chevron Chemical Corporation, the sole distributor of paraquat in the United States. *fn11" On the eve of trial, on March 18, 1982, Mr. Ferebee died. A survival action was continued by his estate, and a wrongful death count was added on behalf of Mr. Ferebee's minor children. The amended complaint alleged negligence, breach of warranty, and strict liability, all stemming from defendant's alleged failure to provide an adequate warning that dermal exposure to paraquat could cause serious lung disease and death. Punitive damages were also sought. At the end of the 2 1/2 week trial, the Court directed a verdict for defendant on the punitive damages claim. The negligence and breach of warranty claims were also dropped, and only the product liability claim was submitted to the jury.

 After 3 days of deliberation, the jury was hopelessly divided, and the Court declared a mistrial. The case was tried for the second time in October, 1982. *fn12"

 At the second trial, plaintiffs presented excerpts from a videotape deposition of Mr. Ferebee taken before his death. Mr. Ferebee described his medical history and the circumstances surrounding his employment and exposure to paraquat. Plaintiffs' live witnesses included Drs. Yusuf and Crystal, who described their treatment of Mr. Ferebee and the considerations underlying their diagnosis of paraquat poisoning, including Mr. Ferebee's medical history, laboratory tests, consultations with other doctors, and the medical literature on other cases of paraquat induced illness. Members of Mr. Ferebee's family also testified about their observations of his illness and the children's loss of solatium. One of Mr. Ferebee's co-workers testified about paraquat use at BARC by Mr. Ferebee and others. *fn13"

 Defendant's live testimony focused primarily on the issue of whether paraquat caused Mr. Ferebee's illness and death. Dr. H. Kenneth Fisher, a pulmonary specialist who acts as a part-time consultant to defendant on paraquat, and Dr. Charles Carrington, a pathologist who was once involved in the treatment of a confirmed case of paraquat poisoning, gave their opinion that Mr. Ferebee's illness was not caused by paraquat. *fn14" Dr. Henry Wagner, a distinguished independent radiologist, testified that the gallium scans taken of Mr. Ferebee's co-workers were negative. *fn15" Defendant concluded by presenting evidence that the label on the container of paraquat Mr. Ferebee used complied with EPA labelling regulations in force at that time. Defendant also called a BARC employee, who testified that when he sprayed paraquat (usually from a tractor), he wore protective clothing.

 At the close of the evidence, the Court reaffirmed its directed verdict on the punitive damages issue and submitted the rest of the case to the jury on the issue of strict product liability. The Court instructed the jury that plaintiffs had the burden of proving all of the following elements by a preponderance of the evidence:

1. That paraquat proximately caused Mr. Ferebee's illness and death;
2. That paraquat is inherently dangerous;
3. That defendant knew, or should have known, at the time it sold the paraquat used by Mr. Ferebee, that paraquat is inherently dangerous;
4. That the resulting duty to provide an adequate warning of the danger was not met; and
5. That the inadequacy of the warning proximately caused Mr. Ferebee's illness and death.

 The jury was further instructed that if plaintiffs proved these elements, defendant had the burden of proving its defense of misuse. *fn16"

 The pecuniary damages suffered by plaintiffs were the subject of a stipulation between the parties. The jury was instructed to consider only nonpecuniary losses if it came to the point of assessing damages. After four hours of deliberation, the jury returned a verdict for plaintiffs and awarded $60,000 in the wrongful death action. *fn17" Judgment was entered on this verdict, and a separate judgment was entered for plaintiffs on the stipulation in the ...

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