Letter of the Law

Editor’s note: This is the first in a two-part series about legal considerations regarding entomology and the pest control industry. Part 2 will appear in next month’s issue of PCT.

We live in an increasingly litigious society wherein just about every conceivable dispute in life or business is battled out in courts of law. Several popular television shows are great examples of this trend. I have personally watched episodes of the show Judge Judy where the litigants were squabbling over $1,500 or less. It seems ridiculous that people can’t work out their problems without taking every little thing to court.

Unfortunately, pest management professionals (PMP) are not immune to lawsuits filed by customers or citizens claiming neglect, harm, personal injury, emotional trauma, poisoning or damage to property from insects. Particularly “hot” issues right now attracting lawsuits are bed bug infestations, damage from termites and other wood-destroying insects, and pests found in food products.

At the other end of this spectrum is the situation where entomologists, PMPs or environmental health personnel serve as expert witnesses in court cases. Under this scenario, the professional entomologist is serving as a consultant or testifying expert in a court case. They aren’t being sued, but instead are hired as technical experts in someone else’s lawsuit. In this article, I will try to explain the interface between the legal profession and pest control, more specifically, forensic entomology in the broadest sense meaning only “pertaining to courts of law.” Many of the basic principles of record keeping, data integrity and transfer, and testifying are the same, no matter which side of the law you are on. What follows are ways to avoid a lawsuit (or at least, make it easier if you do get sued):

Stay within your outlined professional “duties.” Whether you work for a corporation, governmental entity or are an independent licensed PMP, one of the best ways to keep from getting sued is understand your duties and perform them well (and only them). A corporate, public, or government employee is usually fairly protected from lawsuits if he/she remains within his prescribed duties.

For example, if your job is to inspect restaurants, then inspect restaurants, following the policies and procedures outlined by the agency your work for. It sounds silly, but if you get sued, you can say something like, “Hey, I just followed the food regulation or IPM regulations adopted by my agency or health authority.” If you are a PMP, perform your inspections and treatments only as defined by your company policies and the insecticide label.

Stay within your expertise. Although similar to that discussed in the previous paragraph, there are important differences between duties and expertise. Never stray from your training or expertise, no matter how tempting.

If, for example, you are a pest control technician, and a customer asks you about mold growth in their bathroom, it would be best to say something like, “I’m not an expert on indoor molds. The best thing for you to do is to ask someone else, maybe a health department person or an industrial hygienist.”

As another example, if, during an inspection, you claim that the offending pest is a phorid fly, then you had better be able to demonstrate your fly identification abilities because this may be challenged in court. Attorneys for the other side will most certainly ask you questions like, “Mr. so-and-so, are you are board certified entomologist?” Or, “Could you please tell us what kind of entomological training you have received.” Or, “Mr. so-and-so, how many phorid flies have you ever identified?” “And, what are the distinguishing characteristics of this particular fly family?”

Another common problem is when customers ask a PMP a medical question or ask for a medical opinion. Non-physician health department inspectors or PMPs should never offer any type of medical advice or examine a patient or any lesions/bites on their body. Invariably, at some point, the customer will become angry or disgruntled and claim that you offered a medical diagnosis, leading to harm or injury.

Maintain good notes and records of your work. Good record-keeping is a must for both preventing and fighting lawsuits. All sorts of claims can be made by plaintiffs about you and your services, and if months or years have passed since the incident, written and digital records are critically important. PMP inspection reports, pest management logs or application records may be used to establish the mechanism of contamination in a single outbreak or to discern a pattern of neglect and sub-standard behavior. Records show what the “findings” were at the particular time of the incident, conditions, environmental data, and time and duration of your visit, etc.

For record-keeping beyond standard inspection forms or pesticide application reports, I suggest using a bound notebook (not loose-leaf) with consecutively numbered pages. This type of record book makes it difficult to claim that notes have been tampered with since the incident.

Good records may either help or hurt your case. Believe me, if the case goes to trial, your records will be prominently displayed on the wall in the courtroom for all to see. This can be quite embarrassing. I’ve personally seen lawsuits against PMPs won because the records revealed that the pest control technician was only at the site for less than 10 minutes (the argument being that it would be impossible to perform the necessary pest control applications in that short period of time).

On the other hand, I’ve seen frivolous lawsuits defeated or thrown out because the records showed that the technician followed accepted inspection and treatment guidelines. Remember, people can claim or allege that you did all sorts of terrible things, but proving maleficence is another thing altogether. Records are an integral part of that proving/disproving process.

Read and follow pesticide labels (don’t go off-label). In the same way that physicians are legally bound by prescription drug labels, PMPs are mandated to use pesticides only according to their label directions. Using a product “off-label” is illegal and punishable by fines and even imprisonment. A surefire way to invite lawsuits is to use a product at a higher rate than prescribed on the label or in a site not listed on the label. Conversely, if someone sues you claiming injury from pesticide use, if your records show that you were within label rates and guidelines, the chances of a successful suit are diminished.

Respond quickly to complaints. As I have often said, “Pest control is more of a business than a science.” One of the best prevention strategies against lawsuits is to immediately and thoroughly respond to your customer’s complaints. The longer an “injured” party is allowed to think on the incident, the more likely he/she will contact an attorney. In lawsuits, often part of the claim of injustice is that PMPs showed calloused disregard for the customer’s feelings. I personally know PMPs who avoid lawsuits by visiting the offended person(s) right away and saying things like, “How can I help? What will it take to make this right?” Complaints that are swiftly dealt with usually do not end up in court.

In the next article in this series, I will explore in greater detail the role of an entomologist or PMP in legal matters. Stay tuned.