Junk v. Terminix Int'l Co.

Junk v. Terminix Int'l Co.

Opinion

RULING ON PLAINTIFF'S MOTION TO COMPEL RULE 30(b)(6) DEPOSITION OF DAS

The above resisted motion [114] is before the Court. The parties are in dispute about three subjects plaintiff wishes to inquire [*2]  into at a Rule 30(b)(6) deposition of DAS; Categories 1 (subparagraphs (b), (c) & (d)), 5 and 6 in the deposition notice.

Category 1 concerns a $876,000 penalty paid by DAS' predecessor, DowElanco, in 1995 in settlement of an Environmental Protection Agency ("EPA") administrative proceeding. Plaintiff wants to question DAS about:

1. The facts leading to the penalty of $876,000 imposed on Dow Elanco by EPA and approved by the Environmental Appeals Board on August 17, 1995 including:

. . . .

b) The basis and reasons for the penalty, including the allegations, facts and evidence supporting the penalty.

c) The dates and nature of reports received by Dow concerning adverse effects of pesticides.

d) The reasons for Dow's delay in notifying the EPA of reports of adverse effects of pesticides.

Some context is in order. Section 6(a)(2) of the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136d(a)(2), requires pesticide registrants to report to the EPA additional "factual information regarding unreasonable adverse effects on the environment of [a] pesticide." From the beginning the reporting requirement was a subject of dispute between the EPA and pesticide manufacturers. See American Crop Protection Ass'n v. EPA, 182 F. Supp. 2d 89 (D.D.C. 2002). In late 1994 DowElanco voluntarily submitted [*3]  to the EPA summaries of 288 incident reports, 219 (by the Court's count) of which involved chlorpyrifos. (EPA Amended Complaint at 2-3).¹ Chlorpyrifos is the substance in DAS' "Dursban" product which allegedly caused serious in utero neurologic injury to Rene Junk's son, T.J., namely cerebral palsy. The EPA alleged DowElanco had failed to submit the adverse incident reports within the time period required by § 6(a)(2) and commenced a statutory civil penalty proceeding. As noted, the proceeding was settled by payment of a penalty. The settlement was also without admission by DowElanco that it had violated § 6(a)(2).

Plaintiff wishes to inquire into the factual circumstances which prompted the administrative proceeding in order to develop evidence pertaining to DAS' notice and knowledge of health risks associated with Dursban. DAS objects on a number of grounds, principally that evidence concerning the administrative proceeding would be barred by Fed. R. Evid. 408 and unfairly prejudicial warranting exclusion under Fed. R. Evid. 403 as argued in DAS' pending motion in limine; that any explanation for the alleged "belatedness" of the incident reports would disclose communications and material protected by the attorney-client and work-product [*4]  privileges; plaintiff is attempting an "end-run" on this Court's January 24, 2008 discovery ruling (the "January 24 ruling"); and in certain respects the deposition would be duplicative of other discovery including DAS' production of the § 6(a)(2) reports involved.

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