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The plaintiff's attorneys faced a daunting challenge going into the trial. While there are regulations to control pesticide drift from spraying done in the air, there are no regulations – state or federal – for pesticides that evaporate and drift through the air.

To overcome that challenge, attorney Nathan Benjamin of Santa Cruz, Calif., had to show jurors that while the application of the pesticides was done correctly, the company that markets the chemicals should have known about the potential risks of chemicals evaporating and becoming airborne.

"These chemicals volatilize and move," said Benjamin. "They attach to dust, move in wind. They attach to fog. We're in the coastal region of central California and every day fog rolls in and moves around."

Defense attorneys could not be reached for comment. In a statement, Western Farm Services said the proper use of pesticides should be determined by federal and state regulators, not by a jury.

Benjamin said he believes an appeal is unlikely.

Herb farm

For nearly two decades, Jacobs Farm/Del Cabo operated as a small organic farm on 120 acres of leased land at Wilder Ranch, a state park in Santa Cruz.

The farm specialized in growing herbs like dill, rosemary and sage.

During a random testing of the herbs by a vendor in October 2006, the farm owners discovered traces of organophosphate chemicals, including chlorpyrifos, diazinon and dimethoate.

The contamination rendered the entire harvest unmarketable, because national organic food guidelines prohibit the use of pesticides on organic crops.

Jacobs Farm contacted the company that applied the chemicals, Fresno, Calif.-based Western Farm Services, and served them with an injunction, but the crops were contaminated again in 2007.

At that point, Jacobs Farm filed suit. (The suit did not name the owners of the farms on which the pesticides were sprayed).

"Western Farm Services is the party that recommends to farmers what to use. They sell [products] on a commission basis and they apply them on farms," said Benjamin.

According to Benjamin, the defense argued they were only responsible for the physical application of the chemicals, and could not be blamed if a wind drift caused the chemicals to move from farm to farm.

But Benjamin claimed that wind drift had nothing to do with the movement of the chemicals. Instead, he argued the volatility of the chemicals made them prone to evaporate into the air and move quickly.

To demonstrate this phenomenon, Benjamin called atmospheric scientist Camille Sears to explain to jurors how the chemicals attach themselves to dust and fog, and how nearby areas get hit with the highest deposits of pesticides.

Benjamin said that Western Farm Services argued that the pesticides had been applied properly and noted that the county's agricultural commissioner had inspected the area while the initial injunction was in effect and cleared them of any wrongdoing.

But Benjamin dismissed that defense.

"I told jurors if there is an automobile accident and the police come but do not cite the [driver at fault], does that mean you can't ask jurors for [compensation] for injuries suffered? It doesn't matter that there was a quickie investigation. What matters is that this happened again."

The verdict

After a weeklong trial, jurors found against Western Farm Service on trespass, negligence and nuisance claims and awarded Jacobs Farm $1 million in damages.

Organic farming groups hailed the verdict, hoping it will send a message to the state that pesticides that evaporate in the air must be more strictly regulated.

"The message the jury sends to regulatory agencies and folks that sell [the chemicals] not only responsible when spraying," said Benjamin. "There's been scientific literature around for decades show that when these organophosphates volatilize, they move. If Western Farm Services didn't know this before, they do now."

Plaintiff's attorneys: Nathan Benjamin and Austin Comstock of Comstock Thompson Kontz in Santa Cruz, Calif.

Defense attorney: Dale Dorfmeier of Petrie, Dorfmeier & Morris, LLP in Fresno, Calif.

The case: Jacobs Farm v. Western Farm Services; Sept. 26, 2008. Santa Cruz County Superior Court, Calif.; Judge Robert Atack.

Questions or comments can be directed to the writer at: justin.rebello@lawyersusaonline.com