Pesticides, Children\u27s Health Policy, and Common Law Tort Claims

The Food Quality Protection Act of 1996 was heralded with great expectations as a means to increase protection for children from the adverse effects of pesticides. However, its implementation has not yet created a sufficient structure to significantly protect children from harmful pesticide exposure. Moreover, targeted lawsuits against EPA to improve implementation of the FQPA\u27s key provisions have had little success as a result of procedural administrative law hurdles. By contrast, recent developments in state law tort actions to recover damages for pesticide-related harms, notably the Supreme Court\u27s 2005 Bates v. Dow Agrosciences decision, support the proposition that state law tort actions may provide a vehicle to increase protection for children\u27s health. In order to accomplish this goal, environmental and children\u27s nonprofit organizations should work more closely with plaintiffs\u27 lawyers representing children in pesticide exposure cases to present the best causation data available. Moreover, where good data is not available, such groups can help courts understand the nature of the scientific uncertainty and encourage them to implement the precautionary principle inherent in the FQPA. Plaintiffs can then argue that when currently unavailable causation data could be reasonably obtained, but the defendant has not conducted the testing to obtain such data, the plaintiff has established its evidentiary burden under Daubert and the burden of proof on causation should be shifted to the defendant. In this way, the tort system can encourage positive developments in testing, product availability, and regulation of pesticides as they impact children\u27s health