Terminix aka Terminex Newspaper Excerpts and Lawsuits
“Exterminators Become Pests for Customers” Hartford Courant 12jul98
A TV commercial for the nation’s largest termite exterminator proclaims that homeowners who hire Terminix International can expect “no bugs, no hassles.” But if you talk to Jeffrey Mehler and his wife, Mary Russell, they’ll tell you they’ve had nothing but hassles since hiring the Memphis-based company two years ago.
“Terminix’s Practices Investigating by State” Hartford Courant 15jul98
State consumer-protection officials have begun an investigation into the business practices of the nation’s largest termite-control company, Terminix International. Mark A. Shiffrin, commissioner of the Department of Consumer Protection, last week signed an order requiring Terminix to answer questions and provide documents on its dealings with some of its residential customers in Connecticut.
“Pest Control Licenses Denied” Hartford Courant 17mar99
Terminix International is appealing the state’s findings that the company’s North Haven, Waterbury and Trumbull offices violated environmental laws.
The state is stripping the nation’s largest termite exterminator of licenses to run three of its four Connecticut offices after a lengthy investigation found repeated violations of pesticide-safety laws, officials said Tuesday.
Terminix International, which is appealing the license denials, came under investigation by the Department of Environmental Protection more than a year ago after a Deep River couple complained that pesticide applicators punctured a heating oil line, causing oil to seep under their home, and that the company used a pesticide in their basement near their drinking water well, in violation of the law.
The DEP criticized Terminix in unusually strong terms. “This is a company that has chosen to put its business interests ahead of its customers’ interests and the environment,” said Richard Barlow, chief of the DEP’s waste bureau. “The DEP strongly recommends that homeowners and businesses employing the services of applicators like Terminix learn more about them before utilizing their services.”...
“Terminix Draws Charges, Contract” Hartford Courant 30oct99
While the state says Terminix International violated pesticide-safety laws and should not be allowed to operate three Connecticut offices, the state also just gave one of those branches a $676,000 contract to treat state buildings. Competing pest control companies say they are bewildered by the state Department of Administrative Services’ decision to award Terminix a three-year contract to treat 336 state buildings after the Department of Environmental Protection revoked the licenses last March.
“State Revokes Contract with Exterminator Firm” Hartford Courant 4nov99
The state Department of Administrative Services has done an about-face and pulled a $676,000 contract awarded to a termite-control company the state says has repeatedly violated pesticide-safety laws. The agency recently had awarded the three-year contract to Terminix International to treat more than 300 state buildings, despite a state Department of Environmental Protection decision last March to revoke the licenses of three of the company’s four branches in Connecticut.
“State Suing Terminix Over Alleged Violations” Hartford Courant 11nov99
Terminix International flagrantly broke Connecticut’s pesticide-safety laws more than 5,000 times in the past four years and should pay heavy fines and be forced to comply, the state attorney general said Wednesday.
The state announced it was filing a lawsuit against the nation’s largest termite-control company after completing a months-long investigation into Terminix’s practices in the state since September 1995.
“Terminix degraded the environment, defied the law, and endangered Connecticut citizens,” Attorney General Richard Blumenthal said. “Our investigation was lengthy and intensive because these violations were extraordinary in scope and severity.”
The state is seeking tens of thousands of dollars in fines, Blumenthal said.
Terminix denies any wrongdoing.
Steve Good, a spokesman for Memphis-based Terminix, said the lawsuit is an attempt to “reinvigorate a weak case” that the attorney general and the Department of Environmental Protection are pursuing in a DEP hearing. He said Terminix will not be intimidated into a settlement and will “vigorously rebut the meritless allegations.”
Blumenthal said that, on thousands of occasions since 1995, Terminix operated without having an employee present who had the required supervisory pesticide-safety certification and failed to give adequate written instructions for spraying pesticides. On hundreds of occasions since 1995, Blumenthal said, Terminix knowingly falsified records on pesticide use and supervision, and refused to allow the state access to records.
“Pesticide Contract Had Bugs In It” Hartford Courant 3dec99
Barbara Waters, head of the State Department of Administrative Services, made the right call last month when she reversed her agency’s award of a $676,000 contract with Terminix International to treat state buildings with pesticides. Ms. Waters said she terminated the agreement on the advice of Attorney General Richard Blumenthal because Terminix’s ability to do business in Connecticut is in jeopardy.
Republican-American on 11nov99
In a Superior Court lawsuit, the DEP has accused Terminix of thousands of violations, including numerous instances of improper recordkeeping, refusing access to state inspectors, and operating an office without registration.
The state will seek fines ranging from $2,500 to $5,000 per day per violation, and up to $25,000 per day for infractions recorded from a 1997 incident when a Terminix worker punctured a heating oil supply line on a call at a Deep River home. The action caused the release of a undetermined amount of oil into the ground beneath the property.
“These alleged violations are all erroneous,” said Steve Good, a Terminix vice president. “This goes back to what we said earlier in the year -- we have operated in full compliance with state regulations.
In the Deep River case, Good said, Terminix spent $500,000 to buy the property, another $500,000 for environmental cleanup, and purchased environmental insurance policies for the neighboring land owners. However, it prompted the state’s Terminix investigation in 1997.
In March of this year, the DEP chose not to renew Terminix’ licenses at the company’s branches in Waterbury, North Haven, and Trumbull. The move was made in response to a series of customer complaints, misapplication of pesticides, and questionable billing practices -- all charges that the company has denied.
The battle between the state and Terminix doesn’t stop there. The firm was awarded a three-year, $700,000 contract last month from the state Department of Administrative Services, but when DAS learned of the DEP investigation, it revoked the deal.
“We’re going to fight that as well,” Good said. “We expect this to go to trial, and we expect to win.”
California -- Virga vs. Terminix, alleged faulty termite clearance.
The civil suit that started this web site, Virga vs. Terminix, Sutter County Superior Court Case #50646, alleging misrepresentation, negligence, and fraud for failure to report damages amounting to approximately $20,000. The jury trial commenced on October 5, 1993. After the disappearance out of state by plaintiffs’ expert witness (the inspector for the California Structural Pest Control Board who was under subpoena to testify on behalf of plaintiffs and whose testimony was vital to get the evidence against Terminix admitted into court), the judge, with no explanation to the jury recessed outside the courtroom, dismissed the case against Terminix for nonsuit -- based on lack of evidence. Bankrupted from the legal expenses, we were unable to appeal.
California -- Terminix vs. Virga, alleged defamation.
In March 1998, Terminix filed a defamation suit in Sutter County Superior Court and sought an injunction to force the removal of this web site from the Internet. Fortunately, California has anti-SLAPP legislation; and the judge threw Terminix’s case out when they were unable to provide any evidence of defamation, which was necessary to give some indication they might be able to prevail at a trial. Terminix was ordered to pay my attorney fees. They did not appeal; but over a year later, they filed a suit in Tennessee on the grounds of trademark infringement.
California -- Langenhuizen vs. Terminix, alleged exposure to Methyl Bromide causing serious health problems and loss of home and possessions -- arbitration scheduled for May 2000.
“Family Sues Terminix Exterminator: For 17 Months, Pleasanton Couple Haven’t Been Able to Move Back into Their Home,” San Jose Mercury News 31jan00
When William and Antoinette Langenhuizen left on vacation 17 months ago, they thought they would return within weeks to their newly remodeled home on Foothill Road.
But the Pleasanton couple, who say they were forced out by a botched termite fumigation, have never moved back.
William and Antoinette Langenhuizen are suing Terminix for $5.5 million for problems created when their home was tented and fumigated with the chemical methyl bromide. The case was scheduled for arbitration in May.
In a related case, the housekeeper, a contractor, a carpet cleaner, and the Langenhuizen’s daughter have filed a joint personal injury lawsuit against Terminix and its subcontractor, Ultratech Division, for exposure to toxic chemicals and resulting health problems.
Colorado -- Richard R. Ross vs. Terminix, alleged racial discrimination.
“Exterminator Charges Race Bias in Suit” Denver Post 22aug97 - Richard R. Ross, a Denver employee of Terminix International Co., filed suit against Terminix, alleging Terminix discriminated against him because he African-American. Mr. Ross, represented by Karen Hay, is seeking damages of $45 million ($1 million in compensatory damages and $44 million in punitive damages) for allegations of being subjected to racially-derogatory names and to a “racially hostile work environment” and for Terminix failing to pay him for work performed, paying him less than they pay non-African American employees, giving him less desirable or low-paying routes, and refusing to allow him to take vacation time off when giving vacation time to nonminority employees with less seniority.
Connecticut -- Mehler and Russell vs. Terminix, alleging Terminix
caused a break in the heating fuel line underneath the slab and a discharge of
heating fuel to the soil and groundwater below the property. State of
Connecticut taking action as a result.
Terminix drilled holes in a basement slab, causing a break in the heating fuel line underneath the slab. The break in the line caused a discharge of heating fuel to the soil and groundwater below the property. Terminix’s motion to force the plaintiffs into binding arbitration was denied by the District Court in Connecticut. Terminix appealed to the 2nd Circuit Court of Appeals in New York City. In a 2-1 split decision in February 2000, the US Court of Appeals for the 2nd Circuit ruled in Terminix’s favor and remanded the case to be decided in arbitration. This case prompted an investigation by the State of Connecticut, which resulted in revocation of the operating licenses of three of the four Terminix branches. The state is seeking a permanent injunction requiring Terminix to hire qualified consultants to investigate the degree and extent of contamination at the Deep River home and to submit and then complete a plan for remediation of the site. The state is also seeking fines ranging from up to $2,500 to $5,000 per day per violation, and up to $25,000 per day for the violations involved in the Deep River incident.
Connecticut -- State of Connecticut vs. Terminix, alleging Terminix degraded the environment, defied the law, and endangered Connecticut Citizens. Investigation prompted by Mehler case.
Connecticut Attorney General's Office Press Release "State Sues Terminix For Numerous Violations Of Environmental Laws" 10nov99
Attorney General Richard Blumenthal and the state Department of Environmental Protection today announced a lawsuit against Terminix International Co. LP, a pesticide company with four offices in Connecticut, for thousands of violations of state environmental laws.
The violations include misuse of pesticides, falsifying records concerning the use and supervision of the application of pesticides, refusing access to state inspectors, failing to keep proper records, misuse of pesticides and operating one of the offices without proper registration.
"Terminix degraded the environment, defied the law, and endangered Connecticut citizens. Overwhelming evidence established abysmal record keeping, shoddy work, sloppy application of hazardous chemicals, and substandard training for employees. Such flagrant, blatant abuses ought to bring serious and swift sanctions," Blumenthal said. "Our investigation was lengthy and intensive because these violations were extraordinary in scope and severity. Terminix must make amends, not just apologies, for its egregious, repeated lawlessness."
"After countless hours of investigating Terminix's operation in Connecticut, the DEP, along with the Attorney General, has developed an extensive list of environmental violations and compliance problems that demonstrate systematic problems with Terminix's business practices," said DEP Deputy Commissioner Jane K. Stahl. "Terminix's non-compliance has been and continues to be detrimental to both their customers and the state's environment and cannot be tolerated."
Terminix currently operates from four offices in Connecticut: North Haven, South Windsor, Trumbull and Waterbury. From around July 9, 1997 to August 31, 1998, it also operated an office in Meriden -- though for several months during that time frame, it did so without having the required registration certificate to operate.
On thousands of occasions since September 1995, Terminix operated its business without having an employee present who possessed required supervisory certification and failed to provide adequate written instructions for the application of pesticides.
On hundreds of occasions since September 1995, Terminix knowingly falsified all or part of records concern the use and supervision of pesticides by falsely indicating individuals with the proper supervision certification had performed certain activities. In thousands of other instances, the company failed to create or maintain records. In addition, Terminix on numerous occasions refused to allow the state to access those records for inspection.
The lawsuit was prompted, in part, by Terminix's handling of a pesticide application at a Deep River home, where the company drilled holes in a basement slab, causing a break in the heating fuel line underneath the slab. The break in the line caused a discharge of heating fuel to the soil and groundwater below the property.
The state is seeking a permanent injunction requiring Terminix to hire qualified consultants to investigate the degree and extent of contamination at the Deep River home and to submit and then complete a plan for remediation of the site. The state is also seeking fines ranging from up to $2,500 to $5,000 per day per violation, and up to $25,000 per day for the violations involved in the Deep River incident.
Connecticut -- State of Connecticut civil suits on line at State of Connecticut Judicial Branch Civil/Family Case Look-up.
Florida -- Terminix International Co. v. Michaels, alleging negligence
and strict liability in connection with its ultra-hazardous activity of applying
dangerous chemicals to the house.
Terminix International Co. v. Michaels, 668 So. 2d 1013 (Fla. 4th DCA 1996) (decided February 7, 1996)
Issue - IS A PARTY PRECLUDED FROM A JURY TRIAL WHERE A TORT CLAIM ARISES BETWEEN PARTIES WHO HAVE A CONTRACTUAL RELATIONSHIP REQUIRING THAT A CLAIM ARISING OUT OF OR RELATING TO AN AGREEMENT OR A BREACH OF AN AGREEMENT MUST BE SUBJECTED TO ARBITRATION?
Facts - Horst Michaels became the assignee of a termite protection plan when he purchased his home in 1990. The signed plan contained an arbitration clause which stated in pertinent part: The purchaser and Terminix agree that any controversy or claim between them arising out of or relating to the interpretation, performance, or breach of any provision of this agreement shall be settled exclusively by arbitration. Michaels later sued Terminix alleging negligence and strict liability in connection with its ultra-hazardous activity of applying dangerous chemicals to the house. Pursuant to the agreement, after the suit was filed Terminix moved to compel arbitration in compliance with the agreement.
Holding - In affirming the trial court's decision denying Terminix's motion to compel arbitration, the court looked to whether the claim arose out of the agreement. In order for the dispute to be characterized as "arising out of or relating to" the subject matter of the contract, and thus subject to arbitration, it must, at the very least, raise some issue the resolution of which requires a reference to or construction of some portion of the contract itself. If such a connection to the contract is not present, tort claims between parties cannot reasonably be intended to have been subject to arbitration within the meaning of an arbitration clause requiring this method of resolution only for claims "arising out of or related to" the contract. If the contract places the party in a unique relationship that creates new duties not otherwise imposed by law, then a dispute regarding a breach of a contractually imposed duty is one that arises from the contract. On the other hand, if the duty alleged to be breached is one imposed by law in recognition of public policy and is generally owed to the others besides the contracting party, then a dispute regarding such a breach is not one arising from the contract, but sounds in tort .In the instant case, Michaels alleged that their injuries occurred because of Terminix's failure to warn them of the dangerous nature of the chemicals which it used. Michaels alleged both negligence and strict liability based on the ultra-hazardous nature of the chemicals. Therefore, the duty owed was a general duty imposed on the producer and distributor of hazardous chemicals, not one imposed by contract. The personal injury claim did not relate to interpretation, performance or breach of any provision of the agreement. The protection of persons who are not within the subject matter of the contract. Dissent: Judge Polen; The arbitration clause appears to be plain and unambiguous on its face. The clause states that any controversy or claim arising out of the performance of the agreement will be settled by arbitration. The Michaels claim clearly arose out of Terminix's performance under the contract, and as such should be submitted to arbitration.
Practice Tip - In evaluating cases involving contracts containing arbitration clauses, or in determining whether to insure companies who enter into contracts with their customers, make sure that the arbitration clause specifically refers to negligent acts in personal injury actions arising out of the performance of the service in order to receive the benefit of the arbitration provision.
Florida -- Florida Attorney General vs. Terminix International.
Terminix to Offer Refunds, Retreatments, for Termite Protection. Agreement
with Terminix settles allegations the company failed to provide consumers with
promised services through nine of its Florida locations.
TERMINIX TO OFFER REFUNDS, RETREATMENTS FOR TERMITE PROTECTION
NOTE: Number of potentially affected consumers revised downward from original estimate
TALLAHASSEE -- Up to approximately 5,400 Floridians could be eligible for refunds or chemical retreatments to protect their homes from termites under an agreement announced today by Department of Agriculture and Consumer Services Commissioner Bob Crawford and Attorney General Bob Butterworth.
The agreement with Terminix International Company Limited Partnership settles allegations that the company failed to provide consumers with promised services through nine of its Florida locations.
"Our joint investigation revealed that in many instances, Terminix failed to fully treat properties for subterranean termites despite its promise to lay down a complete protective barrier against the destructive insects," Crawford said.
"On the properties we inspected, we found that as many as 25 percent of the holes drilled for chemical injection were in effect dummy holes with no chemicals applied," Butterworth added. "We also found supposedly treated areas where the company had drilled no holes at all."
The investigation focused on nine Terminix office locations in Deland, Jacksonville, Longwood, Miami, Orlando, Plantation and Port St. Lucie whose services had generated numerous consumer complaints. Crawford and Butterworth said the company cooperated fully with the investigation.
Without admitting wrongdoing, Terminix agreed to offer reinspection to customers who purchased termite protection from the affected business locations within the past four years. If reinspection reveals a failure to properly treat, Terminix will offer consumers the choice of canceling their contract and receiving a full refund or obtaining retreatment at no charge.
The company also will repair or replace materials damaged by termites on those properties determined to have been improperly treated.
The company also will pay for independent contractors hired, trained and supervised by the Department of Agriculture to do follow-up inspections on 10 percent of the properties Terminix reinspects and determines to have been properly treated. For each follow-up inspection that reveals the property had in fact not been properly treated, Terminix would be liable for a $10,000 penalty.
Crawford and Butterworth said the company's costs for reinspections, retreatments, refunds and repairs could amount to millions of dollars. In addition, Terminix will pay $200,000 to cover the cost of the state's investigation.
Those Terminix customers covered by the agreement will be contacted by the company in writing and advised that they are entitled to a reinspection of their property, Crawford and Butterworth said. They advised consumers seeking more information to call the Terminix toll-free hotline at: 1-800-358-2101.
The settlement agreement was handled by Assistant Attorney General Bob Buchner.
Kentucky -- Kentucky Attorney General vs. Terminix. January 4, 1999, Attorney General announced $800,000 Terminix settlement of allegations relating to a 1994 Consent Judgment.
Kentucky Attorney General announces $800,000 Terminix settlement
FOR IMMEDIATE RELEASE 4jan99
CONTACT: David MacKnight (502)696-5642 Todd Leatherman (502)696-5300
FRANKFORT, Ky. (Monday, January 4, 1999)--The Kentucky Office of the Attorney General and Terminix International today announced an $800,000 settlement of allegations relating to a 1994 Consent Judgment. As part of the agreement, Terminix has implemented a new Quality Assurance Program to provide ongoing quality assurance inspections for customers of the pest control company's termite control services and to reinspect and retreat certain identified customers. The settlement program including reinspections and retreatments for some customers will be monitored by the Attorney General's Office and Kentucky Department of Agriculture for 2 years.
"The agreement we have reached with the company ensures that Kentucky has one of the strongest consumer protection programs in the nation when it comes to assuring quality termite control services," said Albert B. Chandler III, Attorney General. "The initiatives are forward-looking, innovative and, importantly, focused on the consumer."
The Attorney General's Office believes the company has come forward with creative ideas and made significant commitments to remedy past problems including:
1) conducting quality assurance inspections for termite services performed in the Commonwealth;
2) renewing the Company's commitment to have managers' compensation plan provide for a financial incentive tied directly to the quality of termite treatments;
3) committing significant resources to educating consumers concerning termite control services;
4) funding important research work at the University of Kentucky to enhance the termite control industry's development, and consumers' understanding, of innovative pest control technologies;
5) funding state compliance administration.
These programs will cost $533,000. Civil penalties will constitute the balance of the settlement.
In 1994 Terminix entered into a Consent Judgment with the Office of Attorney General to settle allegations concerning Terminix termite control services. As part of the Consent Judgment, Terminix was required to reinspect all home treated for termites between 1989 and 1994 and where appropriate retreat and repair termite damage. Terminix maintains that it has fulfilled its obligations under the Consent Judgment. Both the Attorney General's Office and Terminix believe that this agreement, rather than prolonged litigation, is in the best interest of Kentucky consumers.
Massachusetts -- State vs. Terminix, alleging Terminix violated the law more than 2,000 times between January and September of 1991 by hiring unlicensed and uncertified workers to apply pesticides.
“State files lawsuit against exterminator” The Patriot Ledger 22dec92
State officials filed suit yesterday against the Memphis-based Terminix International Co. for violating the state’s pesticide control law. The company allegedly violated the law more than 2,000 times between January and September of 1991 by hiring unlicensed and uncertified workers to apply pesticides, Attorney General Scott Harshbarger said.
The suit, filed yesterday in Suffolk Superior Court, charges that the company violated an administrative order by failing to keep accurate and complete records, Harshbarger said. But company officials say their workers were properly trained and they blame the state for what they say is an unusually lengthy and complicated licensing procedure. The company could face fines of $10,000 dollars for each violation of the pesticide law, and up to $25,000 for each violation of the administrative order. The Massachusetts Pesticide Control Act is designed to prevent harm to humans, wildlife and the environment, Harshbarger said.
Minnesota -- Herb vs. Terminix, alleged personal injuries from
exposure to fenvalerate.
McLaughlin Gormley King Company,
Plaintiff - Appellee, Appeal from the United States District Court for the District of Minnesota. Terminix International Company, L.P.
Defendant - Appellant.Submitted: November 18, 1996 Filed: January 29, 1997
The HONORABLE PAUL A. MAGNUSON, Chief Judge of the United States District Court for the District of Minnesota.
Terminix also urges us to leap ahead of the district court and decide the issue of arbitrability. We decline to do so. The issue properly before us is whether the district court erred in not referring the issue of arbitrability to the arbitrator.
Minnesota -- McLaughlin Gormley v Terminix Intl. Co. Terminix
settled the Herb lawsuit (above) and filed a demand to arbitrate its claim
against MGK for indemnification and defense costs. MGK refused to arbitrate...
McLaughlin Gormley King Company, Plaintiff - Appellee,
Appeal from the United States District Court for the District of Minnesota.
Terminix International Company, L.P., Defendant - Appellant.
Submitted: November 18, 1996
Filed: January 29, 1997
Before BEAM, FRIEDMAN,* and LOKEN, Circuit Judges. ___________ LOKEN, Circuit Judge. The main issue on this appeal is whether a court or an arbitrator should determine whether the parties' commercial dispute is arbitrable. Agreeing with the district court(1) that the contracting parties left that issue to the court, we affirm. In 1984, McLaughlin Gormley King Company ("MGK") agreed to supply fenvalerate, an insecticide, to Terminix International Company for repackaging and sale to exterminators. The written contract provided for arbitration of "[a]ny controversy arising out of, or relating to this Agreement or any modification or extension hereof." In 1990, the Herb family sued Terminix, alleging personal injuries from exposure to fenvalerate. MGK refused to indemnify or defend Terminix against this claim. Terminix settled the Herb lawsuit and filed a demand to arbitrate its claim against MGK for indemnification and defense costs. MGK refused to arbitrate and filed this declaratory judgment action, claiming that the dispute is not arbitrable because the 1984 contract expired before the events giving rise to the Herb lawsuit. MGK moved for a preliminary injunction prohibiting Terminix "from asserting or further asserting" its demand to arbitrate, and for partial summary judgment declaring the dispute non-arbitrable. Terminix responded with a motion to compel arbitration. When these motions came on for decision, the district court concluded that it needed further discovery on the issue of arbitrability. Therefore, it granted the requested preliminary injunction, denied Terminix's motion to compel arbitration, and continued the motion for partial summary judgment for ninety days. Terminix appeals. I. Appealability. Terminix argues that we have jurisdiction under 28 U.S.C. SS 1292(a)(1) because of the order's "injunctive effect." However, appealability is governed by the specific appeal provisions added to the Federal Arbitration Act in the 1988 Judicial Improvements and Access to Justice Act. Those provisions permit an appeal from an order "denying an application . . . to compel arbitration," 9 U.S.C. SS 16(a)(1)(C), and from "an interlocutory order granting . . . an injunction against an arbitration subject to [the Act]," SS 16(a)(2). In many cases, such as Nordin v. Nutri/Sys., Inc., 897 F.2d 339 (8th Cir. 1990), the arbitrability issue comes to this court after the district court has ruled the dispute non-arbitrable. Here, before deciding that question, the court has entered an order freezing resolution of the parties' dispute pending discovery pertinent to the issue of arbitrability. Terminix argues that the arbitrator, not the court, must initially decide arbitrability.(2) If Terminix is correct, the order being appealed will have improperly and unnecessarily delayed the arbitration process. Thus, although temporary in nature, it is "an order that favors litigation over arbitration" and is immediately appealable under SS 16(a). Stedor Enters., Ltd. v. Armtex, Inc., 947 F.2d 727, 730 (4th Cir. 1991). II. Who Decides Arbitrability. The Supreme Court recently clarified the standard for deciding whether the court or the arbitrator determines arbitrability. The issue, the Court explained, turns on whether the parties "agree[d] to submit the arbitrability question itself to arbitration." First Options of Chicago, Inc., v. Kaplan, 115 S.Ct. 1920, 1923 (1995). In answering that question, [c]ourts should not assume that the parties agreed to arbitrate arbitrability unless there is `clea[r] and unmistakabl[e]' evidence that they did so. In this manner the law treats silence or ambiguity about the question `who (primarily) should decide arbitrability' differently from the way it treats silence or ambiguity about the question `whether a particular merits-related dispute is arbitrable because it is within the scope of a valid arbitration agreement.' Id. at 1924 (citations omitted). Any other rule would "too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide." Id. at 1925. Accord Litton Fin. Printing Div. v. N.L.R.B., 501 U.S. 190, 208-09 (1991) ("a party cannot be forced to `arbitrate the arbitrability question'"); AT&T Techs., Inc. v. Communications Workers, 475 U.S. 643, 649 (1986); Local Union No. 884, United Rubber, Cork, Linoleum, and Plastic Workers v. Bridgestone/ Firestone, Inc., 61 F.3d 1347, 1354 (8th Cir. 1995). In this case, neither the arbitration clause nor any other provision in the 1984 contract between Terminix and MGK clearly and unmistakably evidenced the parties' intent to give the arbitrator power to determine arbitrability. The arbitration clause made no mention of a "controversy" over arbitrability. Terminix argues that the federal policy favoring arbitration requires that the arbitrator decide issues of arbitrability if the arbitration clause is broadly worded. The Court in First Options rejected that contention, explaining that "the basic objective in this area is . . . to ensure that commercial arbitration agreements, like other contracts, `are enforced according to their terms.'" 115 S. Ct. at 1925 (citations omitted). Thus, the district court correctly undertook to decide the issue of arbitrability. III. The Preliminary Injunction. Terminix further argues that the order preliminarily enjoining it from pursuing arbitration was an abuse of the district court's discretion under Dataphase Systems, Inc. v. CL Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981). In particular, Terminix argues that the monetary cost MGK would incur in arbitration is not legally recognized irreparable harm, citing cases such as Emery Air Freight Corp. v. Local Union 295, 786 F.2d 93, 100 (2d Cir. 1986), in which irreparable injury was discussed only after the court concluded that the dispute was, in fact, arbitrable. In this case, our decision that the district court has properly undertaken to resolve the question of arbitrability makes this issue quite easy to resolve. If a court has concluded that a dispute is non-arbitrable, prior cases uniformly hold that the party urging arbitration may be enjoined from pursuing what would now be a futile arbitration, even if the threatened irreparable injury to the other party is only the cost of defending the arbitration and having the court set aside any unfavorable award. See PaineWebber Inc. v. Hartmann, 921 F.2d 507, 514 (3rd Cir. 1990); Nordin, 897 F.2d at 343; U.S. v. Pool & Canfield, Inc., 778 F. Supp. 1088, 1092 (W.D. Mo. 1991). If that is so, then the order the court issued here, briefly freezing the parties' dispute resolution activities until it determines arbitrability, is surely appropriate. See Dean Witter Reynolds, Inc. v. McCoy, 995 F.2d 649, 651 (6th Cir. 1993). Cf. Daisy Mfg. Co. v. NCR Corp., 29 F.3d 389, 392 (8th Cir. 1994) ("before a party may be compelled to arbitrate under the Federal Arbitration Act, the court must engage in a limited review to ensure that the dispute `is arbitrable'"). Indeed, although the court labeled this portion of its order a preliminary injunction, the "injunction" furthers its expeditious determination of the arbitrability question and thus looks very much like a nonappealable order controlling the conduct and progress of litigation before the court. See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 279 (1988); Hamilton v. Robertson, 854 F.2d 740, 741 (5th Cir. 1988). The order of the district court is affirmed. A true copy. Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT. **FOOTNOTES** *The HONORABLE DANIEL M. FRIEDMAN, United States Circuit Judge for the Federal Circuit, sitting by designation.
The HONORABLE PAUL A. MAGNUSON, Chief Judge of the United States District Court for the District of Minnesota.
Terminix also urges us to leap ahead of the district court and decide the issue of arbitrability. We decline to do so. The issue properly before us is whether the district court erred in not referring the issue of arbitrability to the arbitrator.
New Jersey -- Kannankeril vs. Terminix, alleged exposure to Dursban
causing serious health problems.
Kannankeril v. Terminix Int'l., Inc., Third Circuit, No. 96-5818 (Decided October 17, 1997)
Physician Not Required to Conduct Own Clinical Examination of Plaintiff Before Offering Expert Opinion as to Cause of Injury.
By Raoul Bustillo
A district court granted summary judgment in favor of Defendant after holding that the opinion of Plaintiff's expert with respect to causation was unreliable due to the fact that the expert had not examined Plaintiff. The Court of Appeals for the Third Circuit vacated the district court's summary judgment decision and remanded the matter for further proceedings. The Court of Appeals held that the opinion of Plaintiff's expert was reliable, despite the fact that the expert formed his opinion without having examined Plaintiff. The weight given to such an opinion was a matter for the jury to decide.
Plaintiff Mary Kannankeril sued Defendant Terminix International, Inc., alleging that she had suffered injuries to her cognitive systems as a result of Defendant's application of pesticides to the Kannankeril residence. Plaintiff's expert, Dr. Benjamin Gerson, was prepared to testify that Plaintiff's exposure to Dursban, a chemical found in Defendant's pesticides, over a one-year period was the cause of the injuries to Plaintiff's central nervous system.
Dr. Gerson never examined Plaintiff. His opinion was based on Plaintiff's account of her symptoms and on a report prepared by a neuro-psychologist who did examine Plaintiff. Dr. Gerson also relied on a summary of the dates on which Defendant applied Dursban to Plaintiff's home, on his general experience, and on standard medical references. The District Court determined that because Dr. Gerson did not examine Plaintiff, Dr. Gerson's opinion was unreliable and unsupported by facts. As a result, the District Court granted summary judgment in favor of Defendant, holding that Plaintiff had failed to produce any evidence with respect to the cause of her injuries.
The Court of Appeals vacated the District Court's summary judgment decision. Basing its decision on Rule 702 of the Federal Rules of Evidence, the Court of appeals held that the "differential diagnosis" technique used by Dr. Gerson to form his opinion was reliable, given the condition at issue and the information available to Dr. Gerson. Dr. Gerson was not required to perform any clinical tests to support his opinion of causation. The weight to be given to Dr. Gerson's opinion was a matter for the jury to decide.
New Jersey -- Search for Terminix and Terminex lawsuits in New Jersey at KnowX.com web site resulted in 100 cases from 5/88 to 12/99 (defendant 99; plaintiff 1).
New Mexico -- Vigil, Romano, and Bielicki-Cooper vs. Terminix,
exposure to Conquer causing serious health problems. Terminix ordered to
pay more than $2,000,000.
Three state prison workers who said they suffered nerve damage from a pesticide used against cockroaches won more than $2 million in a lawsuit against Terminix. A federal jury in Albuquerque ordered Terminix International LP to pay compensatory and punitive damages to the plaintiffs, Cyndy Vigil, Marta Romano, and Vicky Bielicki-Cooper. US District Judge John Conway allowed the punitive damages after finding the company acted recklessly. The three women were food service employees at the Penitentiary of New Mexico in April 1997, when Terminix sprayed a pesticide named Conquer. They suffered neurological damages and other illnesses after a Terminix worker sprayed the pesticide while they worked in the prison kitchen, said their attorney Merit Bennett of Santa Fe. “These companies used very toxic chemicals cavalierly, and after they hurt you, they say you’re not hurt,” he said. Terminix’s attorney -- Tim Hale of Albuquerque.
New York -- Search for Terminix and Terminex lawsuits in New York at KnowX.com web site resulted in 24 cases from 3/84 to 3/99 (defendant 22; plaintiff 2).
New York -- Not included in KnowX results is the case of Trimper vs.
Terminix, alleged exposure to Dursban causing severe health problems.
State of New York taking action as a result.
Pesticide on trial with EPA - ENN 25jan00 Robinson Shaw
In August 1996, Bruce and Karen Trimper's house in Rotterdam, New York, was sprayed for termites. A month later, doctors couldn't explain why the couple's 3-year-old son was having difficulty breathing or why his fever wouldn't go away.
Today, the Trimpers believe they know why. The couple is embroiled in a $215 million lawsuit against Terminix, the largest termite and pest control company in the world.
The lawsuit blames Terminix for a wave of medical problems that the Trimpers allege were caused by the pesticide formula Dursban TC.
According to the lawsuit, Karen Trimper suffered two miscarriages in 1997. Bruce Trimper has difficulty breathing. Both parents also suffer from "impaired reproductive capacities," the suit notes.
In 1998, the family moved from their home after tests by the state and a private lab turned up chemicals used by Terminix two years earlier.
The active ingredient in Dursban TC is chlorpyrifos, a controversial, widely used pesticide and the focus of many studies and debates. The Environmental Protection Agency is currently reviewing the pesticide for the second time.
Every year about 30 million pounds of chlorpyrifos are sprayed into American homes, businesses and fields. "There's a lot of information out there about the dangers of chlorpyrifos that shows it shouldn't even be used at all," said Pam Hadad Hurst, executive director of the New York Coalition for Alternatives to Pesticides.
Chlorpyrifos kills pests by disrupting normal nerve transmission, inhibiting an enzyme in the insect's nervous system. In humans, chlorpyrifos can cause headaches, blurred vision, nausea, convulsions, flu-like symptoms and even seizures. In extreme cases, it has been linked to quadriplegia, genetic damage, birth defects, immune-system abnormalities and death.
The Trimpers are not alone in their suffering. From 1985 to 1992, 25,995 cases of chlorpyrifos exposure were reported to the American Association of Poison Control Centers. Two children, A.J and Christie Ebling, suffered seizures, learning disabilities and incontinence after their family's apartment was repeatedly sprayed with Dursban TC.
Studies show that chlorpyrifos is generally safe when it is used in recommended amounts. But while chlorpyrifos is no more toxic than other pesticides, data shows it has caused the most life-threatening medical conditions of any organophosphate pesticide on the market. Organophosphates are a group of closely related pesticides that affect the nervous system.
Researchers studied Poison Control Center data from 1993 to 1997 to determine the hazards of organophosphate pesticides used in homes. Of 13 insecticides analyzed, chlorpyrifos showed the highest percentage of life-threatening or fatal effects. From 1993 to 1997, one child died and 34 other children and adults suffered life-threatening illness from exposure to chlorpyrifos.
Individuals with low levels of the enzyme paraoxonase are especially vulnerable to the damaging effects of chlorpyrifos.
Dow AgroSciences, which began manufacturing chlorpyrifos more than 30 years ago, stands behind its product. "Three decades of use have shown that chlorpyrifos products can be applied safely by homeowners, gardeners, pest-control operators and others," said Garry Hamlin, a spokesman for the chemical company. "Unless these products are seriously misused, their margins of safety are wide enough to protect both adults and children with the potential to be exposed."
The EPA is the fourth phase of a review of chlorpyrifos. For 90 days, beginning in April, the agency will consider comments, data and risk-mitigation proposals from the public on chlorpyrifos. The EPA will also develop a revised risk assessment, which will be sent to the U.S. Department of Agriculture for review.
The agencies will then conduct public meetings and technical briefings to share its assessment and discuss risk-management strategies.
Terminix has repeatedly denied that Dursban TC caused the health problems alleged by the Trimpers. The company has filed a motion to dismiss the couple's lawsuit, arguing that the contract signed by the Trimpers voids their claims.
New York's Department of Environmental Conservation filed a related complaint against Terminix for the company's failure to: use termiticides properly at the Trimper residence; give proper notice to the homeowners; and keep records required for pesticide application under New York state law. The DEC has asked the company to restore the Trimpers' home to a safe standard and pay $25,000 in fines for violation of state laws.
Safe household alternatives to chlorpyrifos include boric acid and silica gels for household pests, and solutions of vinegar, soap or garlic for outdoor insects and fungi. Sealing cracks and crevices, storing food in sealed containers and eliminating water leaks in roofs and pipes can significantly decrease roach, ant and rodent infestation.
Biological controls such as microbial agents (Bacillus thuringiensis and certain fungi), plant extracts, insect hormones and natural enemies (parasitic wasps, nematodes, and ladybugs) disrupt the mating patterns of pests.
Farming strategies such as mulching, natural biotic communities, crop rotation and cover crops, which break up weed and insect cycles, keep agricultural pests in check.
Pennsylvania -- Search for Terminix and Terminex lawsuits in Pennsylvania at KnowX.com web site resulted in 98 cases from 3/82 to 6/99 (defendant 95; plaintiff 3).
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