PITTSBURGH – A local man who alleged he suffered permanent facial and oral injuries after being exposed to a copper-based pesticide being used to spray trees while he was out on a run in Mount Lebanon nearly two years ago, has settled his claims.
Michael Palladino of Pittsburgh first filed suit in the Allegheny County Court of Common Pleas on July 26, 2023 versus The Davey Tree Expert Company (also known as “Davey Tree”), of Gibsonia.
“On May 24, 2022, at approximately 10:30 a.m., plaintiff Michael Palladino was jogging on a windy morning on Baywood Avenue, approaching its intersection with Cochran Road in Mount Lebanon, Allegheny County, Pennsylvania 15228,” the suit said.
“At that time, defendant Davey Tree’s employee Vanessa was wearing a face shield and gloves while spraying a large pine tree on the corner of Baywood Avenue and Cochran Road with CuPRO 5000, a pesticide classified as a fungicide with the active ingredient of Copper Hydroxide.”
The suit added the employee Vanessa was “spraying the CuPRO 5000 up into the air in an arch-like trajectory in a manner that caused the wind to carry the fungicide beyond the area of the tree.”
“At that time, plaintiff turned left onto Cochran Road and after taking only a few steps, the wind carried the CuPRO 5000 directly into plaintiff’s face. The label for CuPRO 5000 states that it ‘causes irreversible eye damage, is harmful if swallowed, is harmful if absorbed through skin, is harmful if inhaled, should not be in a person’s eyes, on their clothing, on their skin and anyone exposed to the substance should avoid breathing dust,” the suit stated.
“As a direct and proximate result of defendant Davey Tree’s actions, plaintiff Michael Palladino suffered and sustained serious and severe personal injuries, some or all of which may be permanent in nature, as follows: Burning in the eyes, burning of the face, burning of the mouth, dysgeusia, permanent loss of taste, taste disorder, tongue paresthesia, loss of sensation of the tongue, mouth paresthesia and other injuries as may be yet undiscovered and will be revealed in the medical records.”
The defendant company removed the action to the U.S. District Court for the Western District of Pennsylvania on Aug. 31, 2023, citing the amount of damages at stake and complete diversity of citizenship between the parties (the defense asserted the company is instead principally based in Kent, Ohio.)
Furthermore, the defendant filed an answer and new matter on Sept. 7, 2023, which denied liability for the plaintiff’s injuries.
“Plaintiff’s complaint fails to state a cause of action or claim upon which relief may be granted. Plaintiff’s claims are or may be barred, in whole or in part, because Davey’s actions were not the proximate cause any injury or damage sustained by plaintiff. Plaintiff’s claims are or may be barred, in whole or in part, by plaintiff’s own negligence. Plaintiff’s claims are or may be barred, in whole or in part, because any injury or damage sustained by plaintiff was caused by his own conduct, or by the intervening, unforeseeable or superseding conduct of third-parties or others. Plaintiff’s harm or damages, if any, were caused in whole or in part by the acts or omissions of persons/entities other than Davey. Plaintiff’s claims are or may be barred, in whole or in part, by plaintiff’s failure to reasonably mitigate his alleged damages, if any. Plaintiff’s claims are or may be barred, in whole or in part, due to lack of timely notice from plaintiff,” the new matter stated.
“Plaintiff’s claims are barred, in whole or in part, and/or plaintiff’s damages reduced, as a result of the comparative negligence and/or contributory negligence on the part of the plaintiff. Plaintiff’s claims are or may be barred, in whole or in part, because the plaintiff’s knew about the risk, and voluntarily undertook and assumed the risk, which led to any alleged injuries or damages. Plaintiff’s claims may be barred in whole or in part by the applicable statute of limitations, the doctrines of laches, waiver, unclean hands and/or estoppel. Plaintiff’s punitive damages claims are barred and not justified under Pennsylvania law, in whole or in part, due to the lack of reckless, willful, wanton or other egregious behavior by Davey. Plaintiff’s claims for punitive damages violate the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution, and therefore fails to state a claim under which punitive damages can be awarded. Davey asserts all defenses contained in Rule 8(c) of the Federal Rules of Civil Procedure.”
UPDATE
After an additional six months of discovery and mediation proceedings, the parties arrived at a settlement and informed the Court of same – leading U.S. District Court for the Western District of Pennsylvania Judge Nora Barry Fischer to order the case administratively closed on March 4. Settlement terms were not disclosed.
“The Court having been advised by counsel for the parties that the above-captioned case has been resolved and that the only matters remaining to be completed are the preparation and execution of a written settlement agreement, payment of the settlement proceeds, if any, and the submission of a stipulation for dismissal under Federal Rule of Civil Procedure 41(a), and, it appearing that there is no further action required by the Court at this time, it is hereby ordered, that the Clerk mark the above-captioned case closed,” Fischer stated.
“That nothing contained in this order shall be considered a dismissal or disposition of this action, and, that should further proceedings therein become necessary or desirable, either party may initiate them in the same manner as if this order had not been entered, and, it is further ordered that the Court expressly retains jurisdiction in this matter to consider any issue arising during the period when settlement is being finalized, including, but not limited to, enforcing settlement.”
The plaintiff was represented by Patrick C. Booth, A.J. Patterson and Eric T. Chaffin of Chaffin Luhana, in Pittsburgh.
The defendant was represented by Amy K. Pohl and Paul A. Ruscheinski of Litchfield Cavo, in Pittsburgh and Chicago, Ill.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-01576
Allegheny County Court of Common Pleas case GD-23-009097
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com