1. RECEIVED
      1. COMPLAINT
      2. e. teary eyes;
      3. f. restlessness;
      4. i. trouble breathing;
      5. excess of$100,000.00 for lost earning capacity.
      6. WABASH VALLEY SERVICE COMPANY AND HORTON FOR PERSONAL
      7. Respectfully submitted,
      8. INFORMATI ON
    2. REC~V~’
      1. CLER~SO~FI
      2. RELATING TO i’FLJ~JUNE 26, 1998 OVERSPRAY
      3. WABASH VALLEY SERVICE COMPANY AND HORTON FOR PERSONAL
      4. c. sensitivity to bright light;
)
)
)
)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLE~~~ED
VERNON andELAINE ZOHFELD,
JUL 1
2 2005
STATE OF ILLINOIS
Complainants,
~OIIUtiOnControl Board
vs.
PCB No. 05-193
(Citizen’s Enforcement, Air)
BOB
DRAKE, WABASH VALLEY
SERVICE COMPANY, MICHAEL J.
PFISTER, NOAH D. HORTON, and
STEVE KiNDER,
Respondents.
)
)
)
)
)
)
)
)
NOTICE OF FILING
TO:
Ms. Dorothy M. Gunn
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
(VIA
FIRST CLASS MAIL)
Carol Webb, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Post Office Box 19274
Springfield, Illinois 62794-9274
(VIA
ELECTRONIC
MAIL)
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk ofthe
illinois Pollution Control Board an original and nine copies each of an
ENTRY OF
APPEARANCE
OF THOMAS G. SAFLEY, ENTRY OF
APPEARANCE
OF GALE W.
NEWTON, STATUS REPORT,
VERIFIED
MOTION TO STAY PROCEEDINGS and
MOTION FOR EXTENSIONOF TIME on behalf of
Respondents, Wabash Valley Service
Company, Noah
D.
Horton and Steve Kinder, copies ofwhich are herewith served upon you.
Dated: July 8, 2005
Thomas G. Safley
Gale W. Newton
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
Respectfully submitted,
WABASH VALLEY SERVICE COMPANY,
NOAH D. HORTON, and STEVE
Respondents,
THIS FILING SUBMITTED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
I, Thomas G. Safley, the undersigned, certify that I have served the attached
ENTRY OFAPPEARANCE OF THOMAS G. SAFLEY, ENTRY OF APPEARANCE
OF GALE W. NEWTON, STATUS REPORT, VERIFIED MOTION TO STAY
PROCEEDINGS and MOTION FOR EXTENSION OF TIME upon:
Carol Webb, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Post Office Box 19274
Springfield, Illinois 62794-9274
via electronic mail on July 8, 2005, and upon:
Ms. Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Stephen F. Hedinger, Esq.
Hedinger Law Office
2601 South Fifth Street
Springfield, Illinois 62703
Thomas H. Bryan, Esq.
Fine & Hatfield, P.C.
520
N.W. Second Street
Post Office Box 779
Evansville, Indiana 47705-0779
by depositing said documents in the United States Mail in Springfield, Illinois, postage
prepaid, on July 8, 2005.
WVSC:002/Fil/NOF-COS
—
FOAs, Motion to Stay
2
JUL
~ED
1220
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE
OF
ILLINOIS
VERNON and ELAINE ZOHFELD,
)
~
Control Board
)
Complainants,
)
)
vs.
)
PCB No. 05-193
)
(Citizen’s Enforcement, Air)
BOB DRAKE, WABASH VALLEY
)
SERVICE COMPANY, MICHAEL J.
)
PFISTER,, NOAH D. HORTON, and
)
STEVE KINDER,
)
)
Respondents.
)
ENTRY OF APPEARANCE OF THOMAS G. SAFLEY
NOW COMES Thomas G. Safley, ofthe law firm ofHODGE DWYER ZEMAN,
and hereby enters his appearance on behalfofRespondents, WABASH VALLEY
SERVICE COMPANY, NOAH D. HORTON, and STEVE KINDER, in the above-
referenced matter.
Respectfully submitted,
WABASH VALLEY SERVICE COMPANY,
NOAH D. HORTON, and STEVE KINDER,
Respondents,
Dated: July 8, 2005
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
WVSC:002/FiIIEOA-TGS
~2
2.005
~ ~t~OS
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
s9~0~o~Board
VERNON and ELAINE ZOHFELD,
)
)
Complainants,
)
)
vs.
)
PCBNo.05-193
)
(Citizen’s Enforcement, Air)
BOB DRAKE, WABASH VALLEY
)
SERVICE COMPANY, MICHAEL J.
)
PFISTER, NOAH D. HORTON, and
)
STEVE KINDER,
)
)
Respondents.
)
ENTRY OF APPEARANCE OF GALE W. NEWTON
NOW COMES Gale W. Newton, ofthe law firm ofHODGE DWYER ZEMAN,
and hereby enters his appearance on behalf ofRespondents, WABASH VALLEY
SERVICE COMPANY, NOAH D. HORTON, and STEVE KINDER, in the above-
referenced matter.
Respectfully submitted,
WABASH VALLEY SERVICE COMPANY,
NOAH D. HORTON, and STEVE KINDER,
Dated: July 8, 2005
Gale W. Newton
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
Respondents,
WVSC:002/Fil/EOA-GWN
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUL 122005
VERNON and ELAINE ZOHFELD,
))
Pollution
STATE OF~
Control
ILLINOIS
Board
Complainants,
)
)
vs.
)
PCB No. 05-193
)
(Citizen’s Enforcement, Air)
BOB DRAKE, WABASH VALLEY
)
SERVICE COMPANY, MICHAEL J.
)
PFISTER, NOAH D. HORTON, and
)
STEVE KINDER,
)
)
Respondents.
)
STATUS
REPORT
NOW COME Respondents, WABASH VALLEY SERVICE COMPANY,
NOAH D. HORTON, and STEVE KINDER (“Respondents”), by their attorneys,
HODGE DWYER ZEMAN, and submit the following Status Report to the Illinois
Pollution Control Board (“Board”) in conjunction with their Motion to Stay Proceedings,
as requiredby 35 Ill. Admin. Code
§
101.5 14, stating as follows:
1.
On May 9, 2005, Complainants filed their initial Complaint with the
Board in this matter.
2.
The Complaint was served on the Respondents on May 7, 9, and/or 10,
2005.
3.
No discovery, scheduling conference, or other activity has occurred with
regard to the above captioned matter.
WHEREFORE, Respondents, WABASH VALLEY SERVICE COMPANY,
NOAH D. HORTON, and STEVE KINDER, respectfully request that the Illinois
Pollution Control Board stay this matter as set forth in Respondents’ Motion to Stay
Proceedings.
Respectfully submitted,
WABASH VALLEY SERVICE
COMPANY, NOAH D. HORTON, and
STEVE KINDER,
Respondents,
Dated: July 8, 2005
Thomas G. Safley
Gale W. Newton
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
F:\WVSC-002\Pilings\Status Report.doc
Attorneys
2
RECEIVED
CLERKS OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~YL
122005
STATE OF ILLINOIS
VERNON
and ELAINE
ZOHFELD,
)
POIi~tj~~Control Board
Complainants,
)
)
vs.
)
PCB No. 05-193
)
(Citizen’s Enforcement, Air)
BOB DRAKE, WABASH VALLEY
)
SERVICE COMPANY, MICHAEL J.
)
PFISTER, NOAH D. HORTON, and
)
STEVE KINDER,
)
)
Respondents.
)
VERIFIED MOTION TO STAY PROCEEDINGS
NOW COME Respondents, WABASH VALLEY SERVICE COMPANY,
NOAH D. HORTON, and STEVE KINDER (“Respondents”), by their attorneys,
HODGE DWYER ZEMAN, and move the Illinois Pollution Control Board (“Board”) to
stay the proceedings in this matter, pending the conclusion of a related criminal action
initiated against Respondents, stating as follows:
1.
“The Board has ‘inherent authority to a grant stay under certain
circumstances,” Israel-Gerold’s. v. Illinois EPA, PCB No. 91-108, 1991 IlL ENV LEXIS
517, at *2 (Ill.Pol.ControLBd. July 11, 1991) (citations omitted), including the authority
to stay its own proceedings.
2.
A party seeking a stay must submit a motion to the Board “accompanied
by sufficient information detailing why a stay is needed,” and “a status report detailing
the progress ofthe proceeding must be included in the motion.” 35 Ill. Admin. Code
§
101.514.
3.
The Board routinely grants stays ofits own orders and permit conditions,
and has granted stays ofits own proceedings pending the outcome ofrelated cases in
other courts.
$~
Carl and Edna Ball. d/b/a C & E Recycling and Resource Recovery v.
Illinois EPA. PCB No.
95-182,
1996 Ill. ENV LEXIS 181 (Ill.PoLControl.Bd. Feb.
15,
1996) (granting an additional stay ofBoard proceedings to allow the parties time in
which to resolve a related circuit court matter); Lefton Iron and Metal v. Moss-American
Corp. and Kerr-McGee Chemical Corp., PCB No. 87-191, 1990 IlL ENV LEXIS 981,
4-5
(Ill.Pol.Control.Bd. Nov. 9, 1990) (discussing a motion brought by Kerr-McGee to stay
the Board proceedings pending the outcome ofa circuit court action, which stay was
granted by the hearing officer); and Citizens ofLombard, et aL v. Village ofLombard
and the People ofthe State ofIllinois, PCB No. 79-98, 1982 Ill. ENV LEXIS 242
(Ill.Pol.Control.Bd. Dec. 2, 1982) (resuming matter before the Board following
conclusion ofthe proceedings in the Circuit Court after the Board had earlier granted a
motion
4.to
stay theTheBoardBoardproceedingshas
noted that,pendingwith respectfmal
actionto
Boardin
theproceedingsCircuit Courtthatcase).have1
been filed
gf~
Circuit Court proceedings, “if the parties believe that resolution ofthe
On occasion, the Boardhas refused to grant a motion for stay of its o~nproceedings bared on a related
civil case pending in another court. However, such denials were based on factors specific to civil cases
(sç~Environmental Site Developers, Inc. v. White & Brewer Trucking, Inc., PCB Nos. 96-180, 97-11,
1997 Ill. ENV LEXIS 409 (I11.Pol.Control.Bd. July 10, 1997) or where the related civil action was filed
after the matter filed with the Board (s~Village ofPark Forest v. Sears, Roebuck, & Co., PCB No. 01-
77, 2001 Ill. ENV LEXIS 101, at
*
16 (Ill.Pol.Control.Bd. Feb.
15,
2001). In contrast, the current case
involves a criminal case rather than a civil matter, and the criminal case at issue here was filed before the
relatedmatter was filed with the Board.
2
circuit court case will expedite the Board’s decision, the parties are free to request the
Board to grant a stay ofthis proceeding pending the outcome ofthe circuit court case.”
Morton College Board ofTrustees ofIllinois Community College Dist. No. 527 v. Town
of Cicero, PCB No.
98-59,
1998 Ill. ENV LEXIS 13, at *9 (Ill.Pol.Control.Bd. Jan 8,
1998).
5.
On May 9, 2005, Complainants filed their Complaint with the Board in
this matter.
6.
The Complaint alleges that “on or about May 8, 2000, and at other times
known better to Respondents.
. .
Respondents sprayed agricultural chemicals.
. .
in a
manner that allowed the agricultural chemicals to.
. .
drift and cloud onto and across the
adjacent property owned and occupied by the Complainants.” Complaint at 3.
7.
Almost four years earlier. On May 20, 2001, Complainants filed a civil
complaint with the Circuit Court ofthe Second Judicial Circuit, White County, Illinois
(the “Civil Matter”), relating to this same “incident,” and alleging, inter ~Jjg,that “on or
about May 8, 2000” Respondents “applied agrichemicals” to a field and “allowed the
agrichemicals to drift onto the adjacent property owned and occupied by the
Complainants.” ~ Vernon and Elaine Zohfeld v. Bob Drake, WabashValley Serv.
Co., Michael J. Pfister, and Noah D. Horton, Case No. 2001-L-21, (2d Cir. 2001)
(Complaint attached).
8.
Further, on April 26, 2005, a criminal Information (the “Information”) was
filed with the United States District Court ofthe Southern District ofIllinois relating to
this same “incident.” ~ United States ofAmerica v. Wabash Valley Service Co., Glen
3
S. Kinder, and Noah David Horton, Criminal No. 05-40029-JPG, a copy ofwhich
Information is attached hereto.
9.
The criminal Information alleges that “on or about May 8, 2000,
Respondents did use a registered pesticide in a manner inconsistent with its labeling.”
Id.
10.
The Illinois Appellate Court has held that:
A party may claim the fifth amendmentprivilege in a pending civil matter
to protect from involuntarily disclosing information which may implicate
himcriminally. Where a criminal action is simultaneously pending with a
civil action, courts may stay the civil proceeding based on the fifth
amendment until the resolution ofthe criminal matter. Courts are willing
to defer civil proceedings in such a manner inter alia: to protect a party
from making admissions or furnishing other proofofa crime; to protect
the party from not being able to defend a civil suit regarding the same
matter; to protect the party from abuse of discovery in the criminal matter;
and to protect the party from otherwise prejudicing his criminal case.
People, ex rel. Hartigan v. Kafka & Sons Bldg. & Supply Co., 252 Ill. App. 3d
115, 119 (1St Dist. 1993). (Citations omitted.)
11.
In addition:
The decision whether to stay civil proceedings in the face of a parallel
criminalproceeding should be made ‘in light ofthe particular
circumstances and competing interests involved in the case.’ This means
the decisionmakershould consider ‘the extent to which the defendant’s
fifth amendment rights are implicated.’ In addition, the decisionmaker
should generally consider the following factors: (1) the interest ofthe
plaintiffs in proceeding expeditiously with this litigation or any particular
aspectof it, and the potential prejudice to plaintiffs of a delay; (2) the
burden which any particular aspect ofthe proceedings may impose on
defendants; (3) the convenience ofthe court in the management ofits
4
cases, and the efficient use ofjudicial resources; (4) the interests of
persons not parties to the civil litigation; and
(5)
the interest ofthe public
in the pending civil and criminal litigation.
Keating v. Office ofThrift Supervision, 45 F.3d 322, 324-325 (9th Cir. 1995).
(Citations omitted.)
12.
Although a stay ofa civil proceeding due to a possible criminal
investigation “is not normally appropriate when a defendant has not been formally
charged,” “courts have indicated that an announced criminal charge against a
defendant weighs heavily in the defendant’s favor in deciding whether to stay civil
proceedings.” Jacksonville Say. Bank v. Kovack, 326 IlL App. 3d 1131, 1137 (4th Dist.
2002). (Emphasis added.)
13.
Here, Respondents have been formally charged in a criminal matter in
connection with the same “incident” that forms the basis of Complainants’ Complaint
before the Board. See Criminal Information.
14.
In light ofthis fact, for the reasons set forth below, Respondents move the
Board to stay this case pending the resolution ofthat criminal matter. (Respondents do
not by this Motion move the Board for a stay ofthis matterpending the resolution ofthe
Civil Matter, ifthat matter is still pending after the criminal matter is concluded.)
15.
First, Complainants would not be prejudiced by any delay caused by a stay
since before the Board they are seeking only civil penalties that would be paid to the
State and an order to cease and desist from future violations ofthe Illinois Environmental
Protection Act where the violation alleged was a discrete “overspray” incident rather than
a continuous and ongoing source ofair emissions such as emissions from a point source,
5
and since the Civil Matter, if successful, may provide Complainants with money damages
for their alleged injuries.
16.
Second, Respondents would maintain their rights against self-
incrimination by appropriate application ofthe Fifth Amendment in any civil matter,
including this case, and, therefore, the burden on Respondents would be onerous because
should they invoke their rights against self-incrimination in this matter to protect
themselves from use ofsuch testimony in the criminal case, the fact frnder in this matter
could be “entitled to draw negative inferences against those who assert fifth amendment
rights against self-incrimination.” People v. $1.124.905 United States Currency, 177 Ill.
2d 314, 362 (IlL 1997).
17.
Third, a stay would not inconvenience the Board in the management ofits
cases since no schedule has yet been established in this case, and a stay would promote
the efficient use ofjudicial resources since some ofthe facts at issue could be decided
during the criminal case.
18.
Fourth, no persons who are not parties to the Complaint have expressed
interest in the civil matters involved in the Complaint.
19.
Fifth, the public has not expressed any particular interest in the pending
civil matters involved in the Complaint.
20.
Sixth, Bob Drake, who owns the property adjacent to Complainants’
property, on which Respondents allegedly“sprayed agricultural chemicals,” and Michael
J. Pfister, are Respondents in the present matter but are not named in the Information.
6
21.
Bob Drake and Michael J. Pfister would be prejudiced in the present
matter if a stay were not issued because they would be unable to obtain information from
Respondents in respect to their defenses or in respect to any cross-complaints they may
file, since Respondents intend to maintain their Fifth Amendment rights against self-
incrimination.
22.
In addition, counsel for Bob Drake has indicated to the undersigned that
he agrees to the issuance ofa stay, and Michael J. Pfister, whom the undersigned also
represents in this matter, also agrees to the issuance ofa stay.
23.
Seventh, since the Complaint only alleges one discrete identifiable
incident which allegedly occurred on May 8, 2000, more than five years ago, neither the
public nor the environment would be harmed by the granting ofa stay.
24.
This Motion is made in good faith and not for purposes ofundue delay.
25.
At the time offiling this Motion for Stay ofProceedings, Respondents
also are filing a Motion for Extension ofTime to Respond to the Complaint pending the
Board’s resolution ofthis Motion for Stay.
26.
Pursuant to 35 Ill. Admin. Code
§
101.5 14, Respondents also have filed
herewith a Status Report detailing the progress ofthis matter to date.
WHEREFORE, Respondents, WABASH VALLEY SERVICE COMPANY,
NOAH D. HORTON, and STEVE KINDER, respectfully move the Illinois Pollution
Control Board to stay the proceedings in this matter based on Respondents’ Fifth
7
Amendment rights until the conclusion ofthe criminal matter referred to herein, and to
award Respondents all other reliefjust and proper in the premises.
VERIFICATION
STATE OF ILLINOIS
)
)
SS.
COUNTY OF SANGAMON)
Thomas G. Safley, being first duly sworn on oath, deposes and states, under
penalties provided by law pursuant to Section 1-109 ofthe Code ofCivil Procedure, that
the statements set forth above are true and correct, except as to matters herein stated to be
on information and belief, and as to such matters, the undersigned certifies as aforesaid
that he verily believes the same to be true.
Respectfully submitted,
WABASH VALLEY SERVICE
COMPANY, NOAH D. HORTON, and
STEVE KINDER,
Respondents,
Dated: July 8, 2005
Thomas G. Safley
Gale W. Newton
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
WVSC-002\Filings\Verinfed Motion to Stay Proceedings.doc
8
IN THE CIRCUIT COURT FOR THE
SECOND
JUDICIAL
WHITE COUNTY, ILLINOIS
ELAINE and VERNON ZOHFELD
)
as individuals and d/b/a EZ FARMS,
)
)
Plaintiffs,
)
v.
)
Case No._______
BOB
DRAKE, WABASH VALLEY SERVICE
)
COMPANY, MICHAEL J. PFISTER, and
)
NOAH D. HORTON,
)
)
Defendants.
)
COMPLAINT
NOW COME Plaintiffs, ELAiNE and VERNON ZOHFELD, as individuals and d/b/a EZ
FARMS, by and through their undersigned attorneys, HEDINGER & HOWARD, by Stephen F.
Hedinger, and for their Complaint against Defendants, BOB DRAKE (hereinafter “Drake”),
WABASH VALLEY SERVICE COMPANY(hereinafter “Wabash Valley”), MICHAEL J.
PFISTER (hereinafter “Pfister”), and NOA.H D. HORTON (hereinafter “Horton”) state as
follows:
Allegations Applicable to
MLCounts
1. Plaintiffs Elaine and Vernon Zohfeld (hereinaftercollectively “the Zohfelds”) are
residents of the County of Hamilton, State ofIllinois and have been at all times relevant to this
Complaint.
2. The Zohfelds own and run an equine breeding business located in Hamilton County
which is adjacent to property owned by Drake. They breed and raise thoroughbred horses until
they are about two years old, initially train them at a racetrack to race, and then sell them at
auction to trainers and others as racehorses.
3. Drake is a resident of the County of Hamilton, State of Illinois, who owns a forty-four
acre tract of land (hereinafter referred to as “field”) adjacent to the property ofthe Zohfelds.
4, Wabash Valley is an agricultural cooperative with at least one office, including its
main office, located in White County.
5.
Wabash Valley transacts business by engaging in the selling and application of
agrichernicals including, but not limited to, chemical peàticides and/or herbicides (hereinafter
collectively referred tb as “agrichemicals”) to fields in various counties ofIllinois, including
White and Hamilton Counties. Wabash Valley maintains its primary place of businessin White
County.
6. The movement of agrichemical spray particles and vapors offtargeted fields by air is
referred to as “spray drift” or “drift” or “over drift”.
7. Pfister is a resident ofthe County of Hamilton, State ofIllinois.
8. Horton is a resident of the County ofSaline, State of Illinois.
9. Pfister and Horton were and/or are agents of orare employed by Wabash Valley to
drive spray equipment used to apply agrichemicals to Drake’s fields.
COUNT I
-
NEGLIGENCE OF DEFENDANTS
DRAKE,
WABASH
VALLEY SERVTCE
COMPANY
ANDPFISTER
FOR PROPERTY
DAMAGE
RELATING TO THE
JUNE 26, 1998
OVERSPRAY
10. Plaintiffs repeat and re-allege Paragraphs 1
-
9, inclusive, as
and for their paragraph
10.
11. On or about June 26, 1998, at Drake’s request, Wabash Valley sprayed Drake’s field
with agrichemicals, including, but not limited to, Butyrac-200 and Roundup Ultra.
2
12. Two of the agrichemicals used by Defendants Drake, Wabash Valley and Pfister
relevant to this Complaint, and sprayed by Wabash Valley upon Drake’s field on June26, 1998,
include, but may not be limited to, Butyrac 200 and Roundup Ultra,
13. Some of the information on the specimen label for Butyrac 200 includes,but is not
limited to:
• Butyrac200 is a hazard to both humans and domestic animals;
• Butyrac 200 is a corrosive that causes irreversible eye damage;
• Butyrac 200 is harmful if swallowed orabsorbed through the skin;
• One
should avoid breathing Butyrac 200 spray mist;
• Butyrac 200 spray mist should not be permitted
to
drift onto susceptible plants
(cotton, okra, grapes, tomatoes, fruit trees, vegetables, flowers or other desirable
crop orornamental plants) since very small quantities ofButyrac 200 can cause
severe injury during the growing or dormant periods.
• A coarse spray should be used to minimize drift;
• Spray nozzles that produce fine spray droplets should not be used to apply
Butyrac 200;
• Spray drift ofButyrac 200 can be minimized by not spraying when wind exceeds
5
miles per hour;
• Butyrac 200 should not be applied in a way that will contact workers orother
persons, either directly orthrough drift. (See Exhibit A)
14. Some of the information on the specimen label for Roundup Ultra includes, but is not
limited to:
• Ingestion of Roundup Ultra or large amounts offreshly sprayed vegetation by
domestic animals may result in temporary gastrointestinal irritation;
• Roundup Ultra should not be applied in a way that will contact workers or other
persons, either directly or through spray drift;
• Only protected handlers should be in the area during application ofRoundup
Ultra;
3
•
Roundup Ultra should not be applied in a manner to allow mist, drip, drift or
splash onto desirable vegetation since minute quantitiesof this product can cause
severe damage or destruction to the crops, plants or other areas on which
treatment was not intended.
• The likelihood ofinjury occurring from the use ofRoundup Ultra increases when
winds are gusty, as wind velocity increases, whenwind direction is constantly
changing or when there are other meteorological conditions that favor spray drift;
• Avoid applying Roundup Ultra at extensive speeds or pressures. (See Exhibit B)
15. On or about June26, 1998, Wabash Valley, through its agent and/or employee,
Pfister, applied agrichemicals to the field owned by Drake during weather conditions and in a
•manner that allowed the agrichemicals to drift onto the adjacent property owned and occupied by
the Zohfelds.
16. Defendants Wabash Valley, Pfister, and/or Drake owed a duty to Zohfelds to apply or
facilitate the application of agrichemicals in accordancewith applicable specimen labels and in a
non-negligent manner that would prevent the agrichemicals from drifting from Drake’s field onto
Zohfeld’s adjacent property.
17. By applying agrichemicals during unfavorable weather conditions and/or in a mannerS
inconsistent with the agrichemicals’ specimen labels, Defendants Wabash Valley, Pfister and/or
Drake breached their duty to Zohfelds.
18. Zohfelds’ injuries and property damages were caused by one or more ofthe following
acts ofDefendants Wabash Valley, Pfister, and/or Drake, done in breach of their duty to the
Zohfelds:
a.
Spraying agrichemicals in windy conditions where winds exceeded
5
miles per hour;
4
b.
Spraying agrichemicals in high temperatures of 98°or above where
agrichemical spraying is not to occur at temperatures above 89°,according to the
specimen labels;
c.
Spraying agrichemicals in a manner that caused drifting from Drake’s
field onto Zohfelds’ adjacent property;
d.
Spraying agrichemicals in a manner which was not possibletoprevent
drifting from Drake’s field onto the property of others, including the adjacent
propertyowned and occupied by the Zohfelds;
e.
Spraying agrichemicals in a manner which resulted in persons and/or
animals coming into contact with the agrichemicals via drifting;
1.
Spraying agrichemicals when persons and/oranimals were outdoors and
would come in direct contact with the agrichemicals;
g.
Failing to warn the Zohfelds to avoid contact with plants and trees which
had been contaminated by drifting agrichemicals;
h.
Failing to warn the Zohfelds to avoid contact with areas that had been
contaminated by drifting agrichexnicals; and
i.
Failing to warn the Zohfelds not to feed livestockfrom areas contaminated
by drifting agrichemicals.
19. As a direct and proximate result of one or more of the foregoing acts or omissions of
the Defendants Drake, Wabash Valley and/or Pfister, Plaintiffs have suffered severe and
permanent injuries to their horses and as a consequence, their business as race horse breeders;
Plaintiffs have incurred and will continue to incur veterinary expenses as a result ofthe incident;
5
Plaintiffs will incur future losses from the inability to breed and sell horses as a result of the
incident.
20. The severe and permanent injuries suffered by the horses include, but are not limited
to the following:
a.
increase in temperature;
b.
increase in respiration;
c.
laboredbreathing and bloody-looking, flared nostrils;
d.
rash, hives, hair loss
and bloody patches;
e.
teary eyes;
f.
restlessness;
g.
decrease in appetite and increase in water consumption;
h.
lethargy;
i.
fever;
j.
cough and increase in mucus; and
k.
permanent injury and damages to the horses’ internal organs and systems,
including but not limited to lungs and respiratory systems, which rendered the horses
incapable and unsuitable for breeding and racing purposes, and has and will result in
death.
21, The severe and permanent injuries suffered by the Zohfelds’ equine stock have
caused the Zohfelds to incur damages in an amount in excess of $10,000 for veterinary care and
other assistance to the injured horses, and damages in excess of$250,000 in the Zohfelds’ horse
breeding business through permanent loss ofbreeding stock.
6
-j
‘WHEREFORE, Plaintiffs, Vernon and Elaine Zohfelcl request entry ofa judgment against
Defendants Robert Drake, Wabash Valley Service Company and/orMichael J. Pfister, jointly
and severally, as follows:
-
a. Damages in an- amount in excess of $10,000.00 for the costs ofveterinary expenses
already incurred and future veterinary expenses;
b. Damages in an amount in excess of$250,000.00 for the loss of the business, including
the inability to breed and sell horses;
c. Court costs and such other relief as this Court may deem proper.
PLAINTIFFS DEMAND
TRIAL BY JURY AS TO COUNT I
COUNT U
-
NEGLIGENCE OF DEFENDANTS
DRAKE AND
WABASH VALLEY SERVICE
COMPANY
FOR PERSONAL
JN.TURIES
OF
PLAINTIFF ELAINE
ZORFELD
RELATING
TO TIlE
JUNE
26, 1998
OVERSPRAY
22. Plaintiffs repeat and re-allegeParagraphs 1
-
21, inclusive, as and for their paragraph
22.
23, On or about June 26, 1998, Wabash Valley, through its agents and/or employees,
applied agrichemicals to the field owned by Drake and allowed the agrichemicals to drift onto
the person of Plaintiff ElaineZohfeld who was located on her property adjacent to Drake’s field,
and onto desirable vegetation, including edible vegetation, on the Zohfelds’ property.
24. Wabash Valley and Drake owed a duty to Plaintiff Elaine Zohfeld to apply or
facilitate the application ofagrichemicals in accordance with applicable specimen labels and in a
non-negligent manner that would prevent the agrichernicals from drifting -from Drake’s field onto
Zohfelds’ adjacent property, where they may come in contact with Elaine Zohfeld.
7
25. By applying agrichemicals during unfa’~iorableweather conditions and/or in a manner
inconsistent with the agrichemicals’ specimen labels,Wabash Valley and Drake breached their
duty to Elaine Zohfeld.
26. Plaintiff Elaine Zohfeld’s injuries and damageswere caused by one or more of the
following acts or omissions ofWabash Valley and Drake:
a.
Spraying agrichemicals in windy conditions where winds exceeded
5
miles per hour;
b.
Spraying agrichemicals in high temperatures of98°or above where
agrichemical spraying is not to occur at temperatures above 89°,according to the
specimen labels;
c.
Spraying agrichemicals in a manner that caused drifting from Drake’s
field onto Plaintiff Elaine Zohfeld’s person, or beneficial vegetation,including
edible vegetation, on the Zohfelds’ property;
-
d.
Spraying agrichemicals in a mannerwhich was not possible to prevent
-
drifting from Drake’s field onto the property ofothers, including the adjacent
property owned and occupied by the Zohfelds;
e.
Spraying agrichemicals in .a mannerwhich resulted in persons, including
Plaintiff Elaine Zohfeld, coming into contact with the agrichemicals through
spray drifting;
f.
Spraying agrichemicals when Plaintiff Elaine Zohfeld was outdoors and
would come in direct contact with the agrichemicals through skin absorption and
inhalation;
-
8
g.
Failing to warn Plaintiffs to avoid contact with plants and trees that had
been contaminated by drifting agrichemicals;
h.
Failing to warn Plaintiffs to avoid contact with areas that had been
contaminated by drifting agrichemicals.
27. The agrichemicals applied on June 26, 1998 by Wabash Valley as requested by Drake
upon Drake’s field over drifted onto Zohfelds’ property where they immediately came in contact
with Elaine Zohfeld’sperson, and
they also came in
contact with and contaminated numerous
beneficial
plants upon Zohfelds’ property. The direct contact of the agrichemicals upon the
person of Elaine Zohfeld has caused serious and permanent injuries, and in addition, Elaine
Zôhfeld, unaware that the beneficial plants on her property had been contaminated by the over
drift, ate contaminated blackberries harvested from her property, which ingestion of
agrichemicals caused further and additional serious and permanent injuries to Elaine Zohfeld.
28. As a direct and proximate result ofone or more of the foregoing acts or omissions of
the Defendants Drake and Wabash Valley, Plaintiff Elaine Zohfeld has suffered severe and
permanent injuries to her body; Plaintiff Elaine Zohfeld has incurred and will continue to incur.
medical expenses as a result ofthe incident; and Plaintiff Elaine Zohfeld has experienced and
will continue to experience great pain and suffering as a result of this incident.
29. The severe and permanent injuries suffered by Elaine Zohfeld include, but are not
limited to the following:
a.
frequent headaches;
b.
dizziness and shakiness;
c.
difficulty thinking and disorientation;
d.
rubbery, shaky and unsteady legs;
9
e.
tiredness;
-
f.
burning sensation in throat and mouth;
g.
nauseousness;
h.
irritated, raw throat;
i.
trouble breathing;
j.
rash; and
k.
damages and injuries to internal organs and systems, including damages to her
heart and lungs.
30. The exposure to the agrichemicals experienced by Plaintiff Elaine Zohfeld, in
addition to causing the injuries identified above, will also likely cause future medical conditions
and complications forwhich Plaintiff Elaine Zohfeld will be required to monitor, thereby
incurring additional injuries through stress and uncertainty, as well as incurring additional
medical expenses.
- - -
31. The injuries suffered by Plaintiff Elaine Zohfeld have caused and will cause her to
incur damages in an amount in excess of $10,000.00 for medical expenses already incurred, an.
amount in excess of$50,000.00 for future medicalexpenses, and an amount in excess of
$250,000.00 for her pain, suffering and loss offunctions and pleasures oflife, and an amount in
excess of$100,000.00 for lost earning capacity.
WHEREFORE, Plaintiff, Elaine Zohfeld requests entry ofa judgment against Defendants
Robert Drake and Wabash Valley Service Company, jointly and severally, as follows:
a. Damages in an amount in excess of $60,000.00 for the costs ofmedical expenses
already incurred and future medical expenses that she will incur;
10
b. Damages in an amount of$250,000.00 for Plaintiff Elaine Zohfeld’s pain, suffering
and loss of functions and pleasures of life;
c. Damages in an amount in excess of $100,000.00 for lost earning capacity; and
d. Court costs and such other relief as this Court may deem proper.
PLAINTIFF DEMANDS TRIAL BY JURY
AS TO
COUNT
II
COUNT UI
-
LOSS OF
CONSORTIUM
OF
PLAINTIFF VERNON ZOTIFELD
RELATING TO
THE
JUNE 26,1998 OVERSPRAY
32.
Plaintiffs
repeat and re-allege Paragraphs 1
-
31 inclusive, as
and fortheir paragraph
32.
33. Plaintiff Vernon Zohfeld has
been the lawful husband ofElaine Zohfeld at all times
relevant to this Complaint.
34. By reason of the injuries and damages sustained by Plaintiff Elaine Zohfeld, Plaintiff
Vernon Zohfeld has suffered the loss ofservices ofhis wife; Plaintiff Vernon Zohfeldhas been
and will continue to be deprived ofthe companionship, company, affection and love ofhis wife;
Plaintiff Vernon Zohfeld hasbeen compelled and will be compelled in the future to expend supis
of money having services performed for him which have been previously performedby his wife.
WHEREFORE, Plaintiff Vernon Zohfeld praysjudgment against Defendant Wabash
Valley Service Company and Defendant Robert Drake, jointly and severally, in an amount in
excess of$100,000.00 that is reasonable and equitable for his loss, and for Court costs and such
other relief as this Court may deem proper.
PLAINTIFF DEMANDS TRIAL BY JURY AS TO COUNT III
11
-
-
COUNT IV
-
NEGLIGENCE OF
DEFENDANTS DRAKE~
WABASH
VALLEY
SERVICE COMPANY
AND
HORTON FOR PROPERTY DAMAGE
RELATING
TO
THE
MAY
8, 2000 OVERSPRAY
35.
Plaintiffs repeat
and
re-allege Paragraphs 1
-
9, inclusive, as and for their paragraph
35.
36. On or about May 8, 2000, at Drake’s request, Wabash Valley, through its agent and
employee Horton,sprayed Drake’sfield with agrichemicals, including Bicep II Magnum and
Aatrex, and Celatom MP-79 which includes diatomaceous earth and crystalline silica.
37. Some of the information on the specimen label for Bicep II Magnum includes, but is
not limited to:
Bicep II Magnum is a hazard to both humans and domestic animals;
• Bicep II Magnum causes eye irritation;
• Bicep II Magnum is harmfulif swallowed, inhaled or absorbed through the skin;
• One should avoid breathing Bicep II Magnum spray mist;
• Bicep II Magnum may cause skin sensitization reactions in some people;
• Bicep
II Magnum should not be applied in a
manner that will contact workers or
other persons, either directly or through drift;
• To avoid spray drift, do not apply Bicep II Magnum under windy conditions;
• Drift potential is lowest between wind speeds of2-10 mph; however, many
factors, including droplet size and equipment type, determine drift potential at any
given speed;
• Bicep II Magnum should only be applied when the potential for drift to adjacent
sensitive areas (e.g., residential areas, bodies ofwater, known habitat for
threatened or endangered species, nontarget crops) is minimal (e.g., when wind is
• -
blowing away from the sensitive areas). (See Exhibit C)
38. Some of the information
on the specimen labelfor Aatrex
includes, but is not limited
to:
12
• Aatrex is a hazard to both humans and domestic animals;
• Aatrex is harmful if swallowed, inhaled or absorbed through skin;
• One should avoid breathing Aatrex vapors orspray mist;
Aatrex
should not be applied in a manner that will contact workers or other
persons, either directly or through drift;
• Aatrex should not be used near adjacent deshableplants or in greenhouses or
-
injury may occur;
• To avoid spray drift, Aatrex should not be applied under windy conditions. (See
Exhibit D)
-
39. Some ofthe information on the Material Safety Data Sheet for Celatom MP-79
includes, but is not limited to:
• Upper respiratory irritant that can cause coughing or throat irritation from acute
exposure to product;
-
• The International Agency for Research on Cancer and-National Toxicology
Program have recognized crystalline silica as carcinogenic to humans;
• Workers are requested to wear respirators when celatom dust is present;
• The handling procedures say to avoid creating celatom dust;
• Celatommay cause eye irritation or inflammation;
• Inhalation can cause dryness of nasal passages and congestion. (See Exhibit E.)
40. On or about May 8, 2000, Wabash Valley, through its agent and/or employee, Horton,
applied agrichemicals to the field owned by Drake and allowed the agrichemicals to drift onto
the adjacent property owned and occupied by the Zohfelds.
41. Wabash Valley, Horton, and Drake owed a duty to the Zohfelds to apply or facilitate
the application of the agrichemicals in accordance with applicable specimen labels and in a non-
13
negligent manner that would not allow the agrichemicals to drift from Drake’s field onto
Zohfelds’ adjacentproperty.
42. By applying agrichemicals during unfavorable weatherconditions and/or in a manner
inconsistent with the agrichemicals’ specimen labels, Wabash Valley, Drake and Horton
breached their duty to the Zohfelds.
43. Plaintiffs’ injuries and property damages were caused by one or more ofthe
fallowingacts or omissions ofWabash Valley, Horton, and/or Drake:
a.
Spraying agrichemicals in windy conditions where winds exceeded
5
miles per hour;
b.
Spraying agrichemicals in high temperatures of 98°or above where
agricultural spraying is not to occur at temperatures above 89°,according to the
specimen labels;
c.
Spraying agrichemicals in a manner that caused drifting from Drake’s
field onto the Zohfelds’ adjacent property;
d.
Spraying agrichemicals in a manner which was not possible to control
drifting from Drake’s field onto the property of others, including the property
owned and occupied by the Zohfelds;
-
e.
Spraying agrichemicals in a mannerwhich resulted in persons and/or
animals coming into contact with those agrichemicals through spray-drift;
f.
Spraying agrichemicals when persons and/or animals were outdoors and
would come in direct contact with the agrichemicals through spray drift;
g.
Failing to warn the Zohfelds to avoid contact with plants and trees which
had been contaminated by drifting agrichemicals;
14
h.
Failing to warn the Zohfelds to avoid contact with areas that had been
contaminated by drifting agrichemicals; and
i.
Failing to warn the Zohfelds not to feed livestock in orfrom areas
contaminated by the drifting agrichemicals.
44. As a direct and proximate result ofone or more of the foregoing acts or omissions of
the Defendants Drake, Wabash Valley and Horton, the Zohfelds have suffered severe and
permanent injuries to theirhorses and as a consequence, to their business as horse breeders; the
Zohfeldshave incurred and will continue to incur veterinary expenses as a result ofthe May 8,
2000 overspray incident; the Zohfelds will incur future losses from inability to breed and sell
horses as a result of the May 8, 2000 overspray incident.
• 45.
The severe injuries suffered by the horses include, but are not limited to the
following:
a.
increase in respiration;
- -
b.
labored breathing;
C.
restlessness;
d.
decrease in appetite and increase in water consumption;
e.
cough and increase in mucus; and
f.
coats lost luster.
g~
permanent injury and damage to the horses’ internal organs and systems,
including but not limited to respiratory systems, which rendered the horses incapable and
unsuitable for breeding and racing purposes, and has and will result in death.
46. The severe and permanent injuries suffered by the Zohfelds’ equine stock have
caused the Zohfelds to incur damages in an amount in excess of $10,000 for veterinary care and
15
other assistance to the injured horses, and damages in excess of$250,000 in the Zohfelds’ horse
breeding business through permanent loss of breeding stock.
WHEREFORE, Plaintiffs, Vernon and Elaine Zohfeld request entry of a judgment against
Defendants Robert Drake, WabashValley Service Company and Noah D. Horton, jointly and
severally as follows:
a. Damages in an amount in excess of $10,000.00 for the costs ofveterinary expenses
already incurred and future veterinary expenses;
b. Damages in an amount in excess of$250,000.00 for the costs ofloss ofthe business,
including the inability to breed and sell horses;
-
c. Court costs and such other relief as this Court may deem proper.
-
PLAINTIFFS DEMAND TRIAL BY JURY AS TO COUNT IV
COUNT V
-
NEGLIGENCE OF DEFENDANTS DRAKE,
WABASH VALLEY SERVICE COMPANY AND HORTON FOR PERSONAL
INJURIES
OF PLAINTIFF
ELAINE
ZOHFELI) RELATING TO THE
MAY
8, 2000 OVERSPRAY
47. Plaintiffs repeat and re-allege Paragraphs 1
—
9,
and
35
-
46,
inclusive, as and fortheir
paragraph 47.
48. On or about May 8, 2000, Wabash Valley, through its employee, Horton, applied
agrichemicals to Drake’s fleld and allowed the agrichemicals to drift onto the person ofPlaintiff
Elaine Zohfeld.
-
-
49. Wabash Valley, Horton and Drake owed a duty to Plaintiff Elaine Zohfeld to apply or
facilitate the application ofthe agrichemicals in accordance with applicable specimen labels and
in a non-negligent manner that would not allow the agrichemicals to drift from Drake’s field
onto Zohfelds’ adjacent property.
16
50.
By applying agrichemicals during unfavorable weatherconditions-and/or in a manner
inconsistent with the agrichemicais’ specimen labels, Wabash Valley, Horton and Drake
breached their duty to the Zohfelds.
51. Plaintiff Elaine Zohfeld’s injuries and damages were caused by one or more ofthe
following acts or omissions ofWabash Valley,Horton and Drake:
a.
Spraying agrichemicals in windy conditions where winds exceeded 5
miles per hour;
-
b.
Spraying agrichemicals in high temperatures of 98°or above where
agrichemical spraying is not to occur at temperatures above 89°,according to the
specimen labels;
c.
-Spraying agrichemicals in a manner that caused drifting from Drake’s
field onto Plaintiff Elaine Zohfeld’s person;
d..
Spraying agrichemicals in a manner in which- spray drifting was
uncontrolled causing the agrichemicals to drift from Drake’s property onto the
property of others, including the adjacent property owned and occupied by the~
Zohfelds;
e.
Spraying agrichemicals in a mannerwhich resulted in persons, including
Plaintiff Elaine Zohfeld, coming into contact with agrichemicals through spray
drifting;
f.
Spraying agrichemicals when Plaintiff Elaine Zohfeld was outdoors and
would come in direct contact with the agrichemicals through skin absorption and
inhalation;
17
g.
Failing to warn Plaintiffs to avoid contact with plants and trees which had
been contaminated by drifting agrichemicals;
h.
Failing to warnPlaintiffs to avoid contact with areas that had been
contaminated by drifting agrichemicals.
52.
The agrichemicals applied on May 8, 2000, by Wabash Valley and Horton as
requested by Drake upon Drake’sfield over drifted onto Zohfelds’ property where they
immediately came in contact with, and were ingested and inhaled by, Elaine Zohfeld. The direct
contact ofthe agrichemicals upon the person ofElaine Zohfeld has caused serious and permanent
injuries.
-
53. As a direct and proximate result of one or more ofthe foregoing acts oromissions of
Drake, Wabash Valley and Horton, Plaintiff Elaine Zohfeld has suffered severe and permanent
injuries to her body; Plaintiff has incurred and will continue to incur medical expenses as a result
ofthe incident; and Plaintiff has experienced and will continue to experience greatpain and
suffering as a result ofthis incident.
54.
The severe and permanent injuries suffered by Elaine Zohfeld include, but are not~
limited to the following:
a.
frequent headaches;
b.
difficulty breathing;
-
c.
sensitivity to bright light;
d.
reactive airways syndrome disease;
e.
chest pain;
f.
heart muscle damage; and
g.
chemical sensitivity.
18
55.
The exposure to the agrichemicals experienced by Plaintiff Elaine Zohfeld, in
addition to causing the injuries identified above, will also likely cause future medical conditions
and complications forwhich Plaintiff Elaine Zohfeld will be required to monitor, thereby
incurring additional injuries through stress and uncertainty, aswell as incurring additional
medical expenses.
56. The injuries suffered by Plaintiff Elaine Zohfeld have caused and will cause her to
incur damages in an amount in excess of $10,000.00 for medical expenses already incurred, an
amount in excess of $50,000.00 for future medical expenses, and an amount in excess of
$250,000.00 for her pain, suffering and loss offunctions and pleasures oflife, and an amount in.
excess of$100,000.00 forlost earningcapacity.
WHEREFORE, Plaintiff, Elaine Zohfeld requests entry ofa judgment against Defendants
Robert Drake, Noah D. Horton, and Wabash Valley Service Company, jointly and severally, as
follows:
-
a. Damages in an amount in excess of $10,000.00 for the costs ofmedical expenses
already incurred and future medical expenses that shewill incur;
b. Damages in an amount in excess of$250,000.00 for Plaintiff Elaine Zohfeld’s pain
and suffering and loss ofpleasures and functions oflife;
c. Damages in an amount in excess of$100,000.00 for lost earning capacity; and
-
d. Court costs and such other relief as this Court may deemproper.
PLAINTIFF DEMANDS TRIAL
BY JURY AS TO COUNT V
-
19
COUNT VI- LOSS OF CONSORTIUM OF
PLAINTIFF
VERNON ZOHFELD
RELATING
TO THE MAY 8~2000 OVERSPRAY
57.
Plaintiffs repeat and re-allege Paragraphs 1-9 and
35-56
inclusive, as and for
their
paragraph
57.
58. Plaintiff Vernon Zohfeld has been the lawful husband ofElaine Zohfeld at all
times relevant to this Complaint.
59.
By reason ofinjuries and damages sustained by Plaintiff Elaine Zohfeld,
Plaintiff Vernon Zohfeld has suffered the loss ofservices ofhis wife; Plaintiff Vernon
Zohfeld has been and will continue tobe deprived of the companions-hip, company~
affection and love ofhis wife; Plaintiff Vernon Zohfeld has been compelled and will be
compelled in the future to expend sums of money having services performed for him
which have been previously performed by his wife.
‘WHEREFORE, Plaintiff Vernon Zohfeld praysjudgment against Defendants Wabash
Valley Service Company, NoahD. Horton, and Robert Drake, jointly and severally, in an
amount in excess of $100,000.00 that is reasonable and equitable for his loss, and for Court
costs, and for such other relief as this Court may deem proper.
PLAINTIFF DEMAND TRIAL
BY JURY AS TO COUNT VI
Respectfully submitted,
Vernon and Elaine Zohfeld,
Plaintiffs,
By theirattorneys,
HEDINGER & HOWARD
By_______
20
Hedinger & Howard
1225 S.
Sixth St.
Springfield,
IL 62703
(217)
523-2753
phone
(217)523-4366 fax
21
Case
4:05-cr-40029-JPG
Document I
Filed 04/26/2005
Page 1 of 2
ORIGINAL
FILED
IN THE UNITED STATES DISTRICT COURT
APR 26 2O~5
FOR THE SOUTHERN DISTRICT OF ILLINOiS
UNITED STATES OF AMERICA,
)
-
)
Plaintiff,
)
vs.
)
CRIMINAL NO.
~g—~
WABASH VALLEY SERVICE CO.,
)
GLEN S. KINDER, and
)
Title 7, United States Code,
NOAH DAVID HORTON,
)
Sections 1 36j(a)(2), 1 36l(b)(1 )(B), and
)
I 361(b)(4), and Title 18, United States Code,
Defendants. )
Section 2
INFORMATI ON
TIlE UNITED STATES ATTORNEY CHARGES:
On or about May 8, 2000, in Hamilton County, within the Southern District ofIllinois.
WABASH VALLEY SERVICE COMPANY,
GLEN S.
KINDER,
and
NOAH DAVID HORTON,
Defendants herein, each ofwhom was a commercial applicatorofpesticides as defined by federal
regulations and statutes, did use a registered pesticide in a manner inconsistent with its labeling, in
that said Defendants did cause AAtrax 4L and Bicep 11 Magnum, each of which is
a
registered
pesticide, to be used in a manner inconsistent with its labeling
—
that is, said defendants caused
AAtrax 4Land Bicep II Magnum to be applied to a field located in Hamilton-County. Il1inois~during
a time when wind speed was approximately 20 m.p.h., which was inconsistent with the labeling of
both AAtrax 4L and Bicep II Magnum.
Case
4:05-cr-40029-JPG
Document 1
Filed 04/26/2005
Page 2 of 2
All in violation ofTitle 7, United States Code, Sections 1 36j(a)(2)(G) and 1 361(b)( I )(B)and
1361(b)(4), and Title 18, United States Code, Section 2.
UNITED STATES OF AMERiCA
RONALD
J. TENPAS
United1States Attorney
/
1/ -~
-
-
:
RANDY~.MASSEY
--- - •- -
First Assistant United States Attorney
- -
ROBERT
L. SIMPKINS
Assistant United States Attorney
RECOMMENDED BOND:
WABASH VALLEY SERVICE CO.:
$5,000 unsecured
GLEN S. KINDER:
$5,000 unsecured
NOAH DAVID HORTON:
$5,000 unsecured
2
REC~V~’
CLER~SO~FI
JUL 122005
SThTE ~
THE ILLINOIS POLLUTION CONTROL BOARD
poltuttOfl
VERNON and ELAINE ZOHFELD,
)
)
Complainants,
)
)
vs.
)
PCBNo.05-193
)
(Citizen’s Enforcement, Air)
BOB DRAKE, WABASH VALLEY
)
SERVICE COMPANY, MICHAEL J.
)
PFISTBR. NOAH D. HORTON, and
)
-
STEVE K1NDER~,
)
)
Respondents.
)
MOTION FOR EXTENSION OF
TIME
NOW COMB Respondents WABASH VALLEY SERVICE COMPANY, NOAH
D. HORTON, and STEVE KINDER (“Respondents”), by their attorneys, HODGB
DWYER ZBMAN, and move Carol Webb, Hearing Officer in this matter, to enter an
Order granting Respondents an extension oftime in which to answer or otherwise
respond to Complainant’s Complaint. In support ofthis Motion, Respondents state as
follows:
1.
“The Board or hearing officer, for good cause shown on a motion after
notice to the opposite party, may extend the time for filing any document or doing any act
which is required by these rules to be done within a limited period, either before or after
the expiration oftime.” 35 IlL Admin. Code
§
10
1.522.
2.
On May 9,
2005,
Complainants filed their Complaint with the Illinois
Pollution Control Board (“Board”) in this matter.
3.
On May 20, 2001, Complainants filed a civil complaint with the Circuit
Court ofthe Second Judicial Circuit, White County, Illinois (the “Civil Matter”), relating
to this same “incident.” See Vernon and Elaine Zohfeld v. Bob Drake, Wabash Valley
Serv. Co.. Michael J. Pfister. and Noah D. Horton, Case No. 2001-L-21, (2d Cir. 2001), a
copy ofwhich Complaint is attached hereto as Exhibit A.
4.
Further, on April 26, 2005, a criminal Information (“Information”) was
filed with the United States District Court ofthe Southern District ofIllinois relating to
this same “incident.” ~ United States ofAmerica v. Wabash Valley Service Co.. Glen
S. Kinder, and Noah David Horton, Criminal No. 05-40029-JPG, a copy ofwhich
Information is attached hereto as Exhibit B.
5.
Concurrently with the filing ofthis Motion, Respondents are filing a
Motion to Stay Proceedings (“Motion to Stay”) with the Board, moving the Board to stay
the proceedings in this case until the conclusion ofthe criminal matter described in the
Information.
6.
The Motion to Stay was filedto protect the Respondents’ Fifth
Amendment rights against self-incrimination in the related criminal case. ~
Motion to Stay.
7.
Ifthe Motion to Stay is granted by the Board, the Board
proceedings would not continue until the conclusion ofthe criminal matter
described in the Information.
8.
IfRespondents are required to file their Answer in the matterbefore the
Board prior to the Board’s ruling on the Motion to Stay, the purpose and intent of the
Motion to Stay would be thwarted, and, should the Board rule favorably on the Motion to
Stay, the purpose and intent ofthe Board’s issuance ofa stay would be thwarted because
2
Respondents potentially could be required to either invoke their rights under the Fifth
Amendment orAnswer the Complaint, and, thereby, potentially lose their rights against
self-incrimination.
-
9.
Respondents, therefore, request an extension oftime to answer
Complainants’ Complaint until: (1) in the event that the Board grants the Motion to Stay,
thirty (30) days after the conclusion ofthe criminal matter described in the Information;
or, (2) in the eventthat the Board denies the Motion to Stay, thirty (30) days after the
Board’s denial ofthe Motion to Stay.
10.
In addition, counsel for Bob Drake has indicated to the undersigned that
he agrees to the grant ofan extension oftime to answer, and Michael J. Pfister, whom the
undersigned also represents in this matter, also agrees to the grant ofan extension oftime
to answer.
WHEREFORE, Respondents, WABASH VALLEY SERVICE COMPANY,
NOAH D. HORTON, and STEVE KINDER, respectfully move the Hearing Officer to
enter an Order granting their request for an extension oftime to answer Complainants’
Complaint until: (1) in the event that the Board grants the Motion to Stay,
3
thirty (30) days after the conclusion ofthe criminal matter described in the Information;
or, (2) in the event that the Board denies the Motion to Stay, thirty (30) days afterthe
Board’s denial ofthe Motion to Stay.
Respectfully submitted,
WABASH VALLEY SERVICE
COMPANY, NOAH D. HORTON, and
STEVE IUNDER,
Respondents,
~
Dated: July 8, 2005
Thomas G. Safley
Gale W. Newton
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box
5776
Springfield, Illinois 62705-5776
(217) 523-4900
F:\WVSC-002\Pilings\Motion for extension of time.doc
4
IN
THE
CIRCUIT COURT FOR
THE SECOND JUDICIAL
WHITE
COUNTY, ILLINOIS
.
ELAINE and VERNON ZOHFELD
)
as individuals and dfb/a EZ FARMS,
)
)
-
Plaintiffs,
)
)
v.
)
__________
)
BOB
DRAKE, WABASH VALLEY SERVICE
)
COMPANY, MICHAEL
I, PFISTER, and
)
NOAH D. HORTON,
)
)
Defendants.
)
-
COMPLAINT
NOW COME Plaintiffs, ELAINE and VERNON ZOHFELD, as individuals and d/b/a EZ
FARMS, by and through their undersigned attorneys, HEDINGER & HOWARD, by Stephen F.
Hedinger, and for their Complaint against Defendants, BOB DRAKE (hereinafter “Drake”),
WABASH VALLEY SERVICE COMPANY(hereinafter “Wabash Valley”), MICHAELJ.
PFISTER (hereinafter “Pfister”), and NOAH D. HORTON(hereinafter “Horton”) stateas
follows:
Allegations Applicable to MI Counts
1. Plaintiffs Elaine and Vernon Zohfeld (hereinafter collectively “the Zohfelds”) are
residents of the County ofHamilton, State ofIllinois and have been at all times relevant to this
Complaint.
2. The Zohfelcls own and run an equine breedingbusiness located in Hamilton County
which is adjacent to property owned by Drake. They breed and raise thoroughbred horses until
they are about two years old, initially train them at a racetrack to race, and then sell them at
auction to trainers and others as racehorses.
Case No.
c200/ ~ ~,l I
EXIIIBIT A
3. Drake is a resident ofthe County of Hamilton, State ofillinois, who owns a forty-four
acre tract ofland (hereinafter referred to as “field”) adjacent to the property ofthe Zohfelds.
4. Wabash Valley is an agricultural cooperative with at least one office, including its
main office, located in White County.
5.
Wabash Valley transacts business by engaging in the selling and application of
agrichemicals including, but not limited to, chemical pesticides and/or herbicides (hereinafter
collectively referred to as “agrichemicals”) to fields in various counties ofIllinois, including
White and Hamilton Counties. Wabash Valley maintains its primary place ofbusiness in White
County.
6. The movement of agrichemical sprayparticles and vapors off targeted fields by air is
referred to as “spray drift” or“drift” or “over drift”.
7. Pfister is a resident ofthe County of Hamilton, State of Illinois.
8. Horton is a resident of the County of Saline, State ofIllinois.
9. Pfister and Horton were and/or are agents of or are employed by Wabash Valley to
drive spray equipment used to apply agrichemicals to Drake’sfields.
COUNT I
-
NEGLIGENCE OF
DEFENDANTS DRAKE,
WABASH
VALLEY SERVICE
COMPANY ANDPF1STERJ3’OR PROPERTY DAMAGE
RELATING
TO THE
JUNE
26, 1998
OVERSPRAY
10. Plaintiffs repeat
and
re-allege Paragraphs 1
-
9, inclusive, as and for their paragraph
10.
11. On
or about June 26, 1998, at Drake’s request,
Wabash
Valley sprayed Drake’s field
with agrichemicals, including, but not limited to, Butyrac-200 and Roundup Ultra.
2
12. Two of the agrichemicals used by DefendantsDrake, Wabash Valley and Pfister
relevant to this Complaint, and sprayed by Wabash Valley upon Drake’s field on June 26, 1998,
include, but may not be limited to, Butyrac 200 and Roundup Ultra.
13. Some ofthe information on the specimen label for Butyrac 200 includes, but is not
limited to:
• Butyrac 200 is a hazard to both humans and domestic animals;
• Butyrac 200 is a corrosive that causes irreversible eye damage;
• Butyrac200 is harmful if swallowed or absorbed through the skin;
• One should avoid breathing Butyrac 200 spraymist;
• Butyrac 200 spray mist should not be permitted to drift onto susceptible plants
(cotton, okra, grapes, tomatoes, fruit trees, vegetables, flowers or otherdesirable
crop or ornamentalplants) since very small quantities of Butyrac200 can cause
severe injury during the growingor dormant periods.
• A coarse spray should be used to minimize drift;
• Spray nozzles that produce fine spray droplets should not be used to apply
Butyrac200;
-
-
-
• Spray drift ofButyrac 200 can be minimized by not spraying when wind exceeds
5
miles per hour;
• Butyrac 200 should not be applied in a way that will contact workers or other
persons, either directly or through drift. (See Exhibit A)
14. Some ofthe information on the specimen label for Roundup Ultra includes, but is not
limited to:
• Ingestion of Roundup Ultra orlarge amounts of freshly sprayed vegetation by
domestic animals may result in temporary gastrointestinal irritation;
•
Roundup Ultra should not be applied in a way that will contact workers or other
persons, either directly or through spray drift;
• Only protected handlers should be in the area during application of Roundup
Ultra;
3
-l
• Roundup Ultra should not be applied in a manner to allow mist, drip, drift or
splash onto desirable vegetation since minute quantities ofthis product can cause
severe damage or destruction to the crops, plants or other areas on which
treatment was not intended.
• The likelihood ofinjury occurring from the use of Roundup Ultra increases when
winds are gusty, as wind velocity increases, whenwind direction is constantly
changing or when there are other meteorological conditions that favor spray drift;
• Avoid applying Roundup Ultra at extensive speeds or pressures. (See Exhibit B)
15.
On or about June 26, 1998, Wabash Valley, through its agent and/or employee,
Pfister, applied agrichemicals to the field owned by Drake during weather conditions and in a
.manner that allowed the agrichemicals to drift onto the adjacentproperty owned and occupied by
the Zohfelds.
16. Defendants Wabash Valley, Pfister, and/or Drake owed a duty to Zohfelds to apply or
facilitate the application of agrichemicals in accordancewith applicable -specimen labels and in a
non-negligent manner that would prevent the agrichemicais from drifting from Drake’s field onto
Zohfeld’s adjacent property.
-
-
17. By applying agrichemicals during unfavorable weatherconditions snd/orin s manner.
inconsistent with the agrichemicals’ specimen labels, Defendants Wabash Valley, Pfister and/or
Drake breached their duty to Zohfelds.
18. Zohfelds’ injuries and property damageswere caused by one or more ofthe following
acts ofDefendants Wabash Valley, Pflster, and/or Drake, done in breach oftheir duty to the
Zohfelds:
a.
Spraying agrichemicals in windy conditions where winds exceeded
5
miles per hour;
4
b.
Spraying agrichemicals in high temperatures of 980 or above where
agrichemical spraying is not to occur at temperatures above 89°,according to the
specimen labels;
c.
Spraying agrichemicals in a manner that caused drifting from Drake’s
field Onto Zohfelds’ adjacent property;
d.
Spraying agrichemicals in a manner which was not possible to preven-t
drifting from Drake’s field onto the propertyof others, including the adjacent
property owned and occupied by the Zohfelds;
e.
Spraying agrichemicals in a manner which resulted in persons and/or
animals coming into contact with the agrichemicals via drifting;
1.
Spraying agrichemicals when persons and/or animals were outdoors and
would come in direct contact with the agrichemicals;
g.
Failing to warn the Zohfelds to avoid contact with plants and trees which
had been contaminated by drifting agrichemicals;
-
h.
Failing to warn the Zohfelds to avoid contact with areas that had been
contaminated by drifting agrichernicals; and
i.
Failing to warn the Zohfelds not to feed livestock from areas contaminated
by drifting agrichemicals.
19. As a direct and proximate result of one or more of the foregOing acts or omissions of
the Defendants Drake, Wabash Valley and/or Pfister, Plaintiffs have suffered severe and
permanent injuries to their horses and as a consequence, their business as race horse breeders;
Plaintiffs have incurred and will continue to incur veterinary expenses as a result ofthe incident;
5
Plaintiffs will incur future losses from the inability to breed and sell horses as a result of the
incident.
20. The severe and permanent injuries suffered by the horses include, but are not limited
to the following:
a.
increase in temperature;
b.
increase in respiration;
c.
labored breathing and bloody-looking, flared nostrils;
d.
rash, hives, hair loss and bloody patches;
e.
teary eyes;
-
f.
restlessness;
g.
decrease in appetite and increase in water consumption;
h.
lethargy;
i.
fever;
- -
j.
cough and increase in mucus; and
k.
permanent injury and damages to the horses’ internal organs and systems,
including but not limited to lungs and respiratory systems, which rendered the horses
incapable and unsuitable for breedingand racing purposes, and has and will result in
death.
21. The severe and permanent injuries suffered by the Zohfelds’ equine stock have
caused the Zohfelds to incur damages in an amount in excess of$10,000 for veterinarycare and
other assistance to the injured horses, and damages in excess of$250,000 in the Zohfelds’ horse
breeding business through permanent loss of breedingstock.
6
-4
WHEREFORE, Plaintiffs, Vernon and Elaine Zohfeld request entry of a judgment against
Defendants Robert Drake, Wabash Valley Service Company and/or Michael J. Pfister, jointly
and severally, as follows:
a. Damages in an-amount in excess of $10,000.00 for the costs of veterinary expenses
already incurred and future veterinary expenses;
b. Damages in an amount in excess of $250,000.00 for the loss ofthe business, including
the inability to breed and sell horses;
-
c. Court costs and such other relief as this Court may deem proper.
PLAINTIFFS DEMAND TRIAL BY JURY AS TO COUNT I
COUNT IT
-
NEGLIGENCE OF
DEFENDANTS DRAKE
AN1~
WABASH VALLEY SERVICE
COMPANY
FOR PERSONAL JNJTJRIES
OF
PLAINTU~
ELAINE ZOHFELD RELATING TO
THE
JUNE 26, 1998
OVER.SPRAY
22. Plaintiffs repeat and
re-allege Paragraphs 1
-
21, inclusive, ~s and for their paragraph
22.
23. On
or about June 26,
1998,
Wabash Valley, through its agents and/or employees,
applied agrichemicals to the field owned by Drake and allowed the agrichemicals to drift onto
the person ofPlaintiff Elaine Zohfeld who was located on her property adjacent to Drake’s field,
and onto desirable vegetation, including edible vegetation, on the Zohfelds’ property.
24. Wabash Valley and Drake owed a duty to Plaintiff Elaine Zohfeld to apply or
facilitate the application ofagrichemicals in accordance with applicable specimen labels and in a
non-negligent manner that would preventthe agrichemicals from drifting from Drake’sfield onto
Zohfelds’ adjacent property, where they may come in contact with Elaine Zohfeld.
7
25.
By applying agrichemicals during unfa’t,orable weather conditions and/or in a manner
inconsistent with the agrichemicals’ specimen labels, Wabash Valley and Drake breached their
duty to Elaine Zohfeld.
26. Plaintiff Elaine Zohfeld’s injuries and damages were caused by one or niore ofthe
following acts or omissions of Wabash Valley and Drake:
a.
Spraying agrichenilcals in windy conditions where winds exceeded 5
miles per hour;
-
b.
Spraying agrichemicals in high temperatures of 980 or above where
agrichemical spraying is not to occur at temperatures above 590~, according to the
specimen labels;
-
c.
Spraying agrichemicals in a manner that caused drifting from Drake’s
field Onto Plaintiff Elaine Zohfeld’s person, or beneficial vegetation, including
edible vegetation, on the Zohfelds’ property;
-
d.
Spraying agrichemicals in a manner which was not possible to prevent
drifting from Drake’s field onto the property of others, including the adjacent
property owned and occupied by the Zohfelds;
e.
Spraying agrichemicals in .a manner which resulted in persons, including
Plaintiff Elaine Zohfeld, coming into contact with the agrichemicals through
spray drifting;
f.
Spraying agrichemicals when Plaintiff Elaine Zohfeld was outdoors and
would come in direct contact with the agrichemicals through skin absorption and
inhalation;
-
8
g.
Failing to warn Plaintiffs to avoid contact with plants and trees that had
been contaminated by drifting agrichemicals;
h.
Failing to warn Plaintiffs to avoid contact with areas that had been
contaminated by drifting agrichemicals.
27. The agrichemicals applied on June 26, 1998 by Wabash Valley as requested by Drake
upon Drake’s field over drifted onto Zohfelds’ property where they immediately came in contact
with Elaine Zohfeld’s person, and they also came hi contact with and contaminated numerous
beneficial plants upon Zohfelds’ property. The direct contact of the agrichemicals upon the
person ofElaine Zohfeld has caused serious and permanent injuries, and in addition, Elaine
Zohfeld, unaware that the beneficial plants on her property had been contaminated by the over
drift, ate contaminated blackberries harvested from her property, which ingestion of
agrichemicals caused further and additional serious and permanent injuries to Elaine Zohfeld.
28. As a direct and proximate result of one or more of the foregoing acts or omissions of
the Defendants Drake and Wabash Valley, Plaintiff Elaine Zohfeld has suffered severe and
permanent injuries to her body; Plaintiff Elaine Zohfeld has incurred and will continue to incur.
medical expenses as a result ofthe incident; and Plaintiff Elaine Zohfeld has experienced and
will continue to experience greatpain and suffering as a result- ofthis incident.
29. The severe and permanent injuries suffered by Elaine Zohfeld include, but are not
limited to the following:
a.
frequent headaches;
b.
dizziness and shakiness;
c.
difficulty thinking and disorientation;
d.
rubbery, shaky and unsteady legs;
9
e.
tiredness;
f.
burning sensation in throat and mouth;
g.
nauseousness;
h.
irritated, raw throat;
i.
troublebreathing;
j.
rash; and
k.
damages and injuries to internal organs and systems, including damages to her
heart and lungs.
30. The exposure to the agrichemicals experienced by Plaintiff Elaine Zohfeld,in
addition to causing the injuries identified above, will also likely cause future medical conditions
and complications forwhich Plaintiff Elaine Zohfeld will be required to monitor, thereby
incurring additional injuries through stress and uncertainty, as well as incurring additional
medical expenses.
- - -
31. The injuries suffered by PlaintiffElaine Zohfeld have caused and will cause her to
incur damages in an amount in excess of $10,000.00 formedical expenses already incurred, an
-
amount in excess of $50,000.00 for future medical expenses, and an amount in excess of
$250,000.00 for her pain, suffering and loss offunctions and pleasures oflife, and an amount in
excess of $100,000.00 for lost earning capacity.
WHEREFORE, Plaintiff, Elaine Zohfeld requests entry of a judgment against Defendants
Robert Drake and Wabash Valley Service Company, jointly and severally, as follows:
a. Damages in an amount in excess of $60,000.00 for the costs ofmedical expenses
already incurred and future medical expenses that she will incur;
10
b. Damages in an amount of $250,000.00 for Plaintiff Elaine Zohfeld’s pain, suffering
and loss of functions and pleasures oflife;
-
c.
Damages in an amount in excess of $100,000.00 for lost earning capacity; and
d. Court costs and such other relief as this Court may deem proper.
PLAINTIFF DEMANDS TRIAL
BY
JURY
AS TO COUNT II
COUNT UI
-
LOSS OF CONSORTIUM OF
PLAINTIFF VERNON
ZOHFELD
RELATING TO i’FLJ~JUNE 26, 1998 OVERSPRAY
32. Plaintiffs repeat
and re-allege Paragraphs 1
-
31 inclusive, as and for theirparagraph
32.
33. Plaintiff Vernon Zohfeld hasbeen the lawful husband of Elaine Zohfeld at all times
relevant to this Complaint.
34. By reason ofthe injuries and damages sustained by Plaintiff Elaine Zohield, Plaintiff
Vernon Zohfeld has suffered the loss ofservices ofhis wife; Plaintiff Vernon Zohfeld has been
and will continue to be deprived ofthe companionship, company, affection and love of his wife;
Plaintiff Vernon Zohfeld has been compelled and will be compelled in the future to expend sums
ofmoney having services performed for him which have been previously performedby his wife.
WHEREFORE, Plaintiff Vernon Zohfeld praysjudgment against Defendant Wabash
Valley Service Company and Defendant Robert Drake, jointly and severally, in an amount in
excess of $100,000.00 that is reasonable and equitable for his loss, and for Court costs and such
other relief as this Court may deem proper.
PLAINTIFF DEMANDS TRIAL
BY JURY AS TO COUNT III
11
COUNT IV
-
NEGLIGENCE OF
DEFENDANTS DRAKE,
WABASH VALLEY
SERVICE COMPANY
AND
HORTON FOR PROPERTY DAMAGE RELATING TO
THE
MAY
8, 2000 OVERSPRAY
35.
Plaintiffs repeat and
re-allege Paragraphs 1
-
9, inclusive, as and for their paragraph
35.
36. On or about May 8, 2000, at Drake’s request, Wabash Valley, through its agent and
employee Horton, sprayed Drake’s field with agrichemicals, including Bicep II Magnum and
Aatrex, and Celatom MP-79 which includes diatomaceous earth and crystalline silica.
37. Some of the information on the specimen label forBicep II Magnum includes, but is
not limited to:
• Bicep II Magnum is a hazard to both humans and domestic animals;
• Bicep IIMagnum causes eye irritation;
• Bicep IIMagnum is harmful if swallowed, inhaled or absorbed through the skin;
• One should avoid breathing Bicep II Magnum spray mist;
• Bicep II Magnum may cause skin sensitization reactions in some people;
• Bicep
II Magnum
should not be applied in a manner that will contact workers or
other persons, either directly or through drift;
• To avoid spray drift, do not apply BicepII Magnum under windy conditions;
• Drift potential is lowest between wind speeds of2-10 mph; however, many
factors, including droplet size and equipment type, determine drift potential at any
given speed;
• Bicep II Magnum should only be applied when the potential for drift to adjacent
sensitive areas (e.g., residential areas, bodies ofwater, known habitat for
threatened or endangered species, nontarget crops) is minimal (e.g., when wind is
• -
blowing away from the sensitive areas). (See Exhibit C)
38. Some of the information on the specimen label for Aatrex includes, but is not limited
to:
12
• Aatrex is a hazard to both humans and domestic animals;
• Aatrex is harmful ifswallowed, inhaled or absorbed through skin;
• One should avoid breathing Aatrex vapors orspray mist;
•
Aatrex should not be applied in a manner that will contact workers or other
persons, either directly or through drift;
• Aatrex should not be used near adjacent desirable plants or in greenhouses or
-
injury may occur;
• To avoid spray drift,Aatrex should not be applied under windy conditions. (See
Exhibit D)
39. Some of the information on the Material Safety Data Sheet for Celatom MP-79
includes, but. is not limited to:
• Upper respiratory irritant that can cause coughing or throat irritation from acute
exposure to product;
• The International Agency for Research~n Cancer and~NationalToxicology
Program have recognized crystalline silica as carcinogenic to humans;
• Workers are requested to wear respirators when celatom dust is present;
• The handling procedures say to avoid creating celatom dust;
• Celatom may cause eye irritation or inflammation;
• -
Inhalation can cause dryness ofnasal passages and congestion. (See Exhibit E.)
40. On or about May 8, 2000, Wabash Valley, through its agent and/or employee, Horton,
applied agrichemicals to the field owned by Drake and allowed the agrichemicals to drift onto
the adjacent property owned and occupied by the Zohfelds.
41. Wabash Valley, Horton, and Drake owed a duty to the Zohfelds to apply or facilitate
the application of the agrichemicals in accordance with applicable specimen labels and in a non-
13
negligent manner that would not allow the agrichemicals to drift from Drake’s fieldonto
Zohfelds’ adjacent property.
-
42. By applying agrichemicals during unfavorable weather conditions and/or in a manner
inconsistent with the agrichemicals’ specimen labels, WabashValley, Drake and Horton
breached their duty to the Zohfelds.
43. Plaintiffs’ injuries and property damages were caused by one or more ofthe
following acts or omissions ofWabash Valley,Horton, and/or Drake:
a.
Spraying agrichemicals in windy conditions where winds exceeded
5
miles
per hour;
-
-
b.
Spraying agrichemicals in high temperaturesof 98°orabove where
agricultural spraying is not to occur at temperatures above 89°,according to the
specimen labels;
c.
Spraying agrichemicals in a manner that caused drifting from Drake’s
field onto the Zohfelds’ adjacent property;
d.
Spraying agrichemicals in a manner which was not possible to control
drifting from Drake’s field onto the property of others, including the property
owned and occupied by the Zohfeids;
-
e.
Spraying agrichemicals in a manner which resulted in persons and/or
animals coming into contact with those agrichemicals through spray drift;
f.
Spraying agrichemicals when persons and/or animals were outdoors and
would come in direct contact with the agrichemicals through spray drift;
g.
Failing to warn the Zohfelds to avoid contact with plants and trees which
had been contaminated by drifting agrichemicals;
14
h.
Failing to warn the Zohfelds to avoid contact with areas that had been
contaminated by drifting agrichemicals; and
i.
Failing to warn the Zohfelds not to feed livestock in or from areas
contaminated by the drifting agrichemicals.
44. As a direct and proximate result ofone or more of the foregoing acts or omissions of
the Defendants Drake, Wabash Valley and Horton, the Zohfelds have suffered severe and
permanent injuries to their horses and as a consequence, to theirbusiness as horse breeders; the
Zohfeldshave incurred and will continue to incur veterinary expenses as a result ofthe May 8,
2000 overspray incident; the Zohfelds will incur future losses from inability to breed and sell
horses as a result of the May 8, 2000 overspray incident.
• 45. The severe injuries suffered by the horses include, but are not limited to the
following:
-
a.
increase in respiration;
-
- -
b.
labored breathing;
c.
restlessness;
ci.
decrease in appetite and increase in water consumption;
e.
cough and increase in mucus; and
f.
coats lost luster.
g
permanent injury and damage to the horses’ internal organs and systems,
including but not limited to respiratory systems, which rendered the horses incapable and
unsuitable for breeding and racing purposes, and has and will result in death.
46. The severe and permanent injuries suffered by the Zohfelds’ equine stock have
caused the Zohfelds to incur damages in an amount in excess of $10,000 for veterinary care and
15
other assistance to the injured horses, and damages in excess of $250,000 in the Zohfelds’ horse
breeding business through permanent loss ofbreeding stock.
WHEREFORE, Plaintiffs, Vernon and Elaine Zohfeld request entry ofa judgment against
Defendants Robert Drake, Wabash Valley Service Company and Noah D. Horton, jointly and
severally as follows:
a. Damages in an amount in excess of $10,000.00 for the costs ofveterinary expenses
already incurred and future veterinary expenses;
b. Damages in an amount in excess of $250,000.00 for the costs ofloss ofthe business,
including the inability to breed and sell horses;
-
c. Court costs and such other relief as this Court may deemproper.
PLAINTIFFS DEMAND TRIAL
BY
JURY
AS TO COUNT IV
COUNT V
-
NEGLIGENCE OF DEFENDANTS
DRAKE,
WABASH VALLEY SERVICE COMPANY AND HORTON FOR PERSONAL
INJURIES
OF PLAINTIFF
ELAINE
ZOHFELI) RELATING TO
TIlE
MAY
8, 2000
OVERSPRAY
47. Plaintiffs repeat and re-allegeParagraphs 1
-
9, and 35
-
46, inclusive, as and for their
paragraph 47.
48. On or about May 8, 2000, Wabash Valley, through its employee, Horton, applied
agrichemicals to Drake’s fleld and allowed the agrichemicals to drift onto the person of Plaintiff
Elaine Zohfeld.
-
49. Wabash Valley, Horton and Drake owed a duty to Plaintiff Elaine Zohfeld to apply or
facilitate the application of the agrichemicals in accordance with applicable specimen labels and
in a non-negligent manner that would not allow the agrichemicals to drift from Drake’s field
onto Zohfelds’ adjacent property.
-
16
50.
By applying agrichemicals during unfavorable weather conditions and/or in a manner
inconsistent with the agrichemicals’ specimen labels, Wabash Valley, Horton and Drake
breached their duty to the Zohfelds.
51. Plaintiff Elaine Zohfeld’s injuries and damages were caused by one or more of the
following acts or omissions ofWabash Valley, Horton and Drake:
a.
Spraying agrichemicals in windy conditions where winds exceeded
5
miles per hour;
-
-
b.
Spraying agrichemicals in high temperatures of98°or above where
agrichemical spraying is not to occur at temperatures above 89°,according to the
specimen labels;
-
c.
-Spraying agrichemicals in a manner that caused drifting from Drake’s
field onto Plaintiff Elaine Zohfeld’s person;
d.
-
Spraying agrichemicals in a manner in which spray drifting was
uncontrolled causing the agrichemicals to drift from Drake’s property onto the
property of others, including the adjacent property owned and occupied by the.
Zohfelds;
e.
Spraying agrichernicals in a manner which resulted in persons, including
Plaintiff Elaine Zohfeld, coming into contact with agrichemicals through spray
drifting;
f.
Spraying agrichemicals when Plaintiff Elaine Zohfeld was outdoors and
would come in direct contact with the agrichemicals through skin absorption and
inhalation;
17
-
g.
Failing to warn Plaintiffs to avoid contact with plants and trees which had
-
been contaminated by drifting agrichemicals;
h.
Failing to warn Plaintiffs to avoid contact with areas that had been
contaminated by drifting agrichemicals.
52.
The agrichemicals applied on May 8, 2000, by WabashValley and Horton as
requested by Drake upon Drake’s field over drifted onto Zohfelds’ property where they
immediately came in contact with, and were ingested and inhaled by, Elaine Zohfeld. The direct
contact of’the agrichemicals upon the personof Elaine Zohfeld has caused serious and permanent
injuries.
53.
As a direct
and proximate result of one or more ofthe foregoing acts or omissions of
Drake, Wabash Valley and Horton, Plaintiff Elaine Zohfeld has suffered severe and permanent
injuries to her body; Plaintiff has incurred and will continue to incur medicalexpenses as a result
of the incident; and Plaintiff has experienced and will continue to experiencegreat pain and
suffering as a result ofthis Incident.
-
54.
The severe and permanent injuries suffered by Elaine Zohfeld include, but are not
-
limited to the following:
a.
frequent headaches;
b.
difficulty breathing;
c.
sensitivity to bright light;
d.
reactive airways syndrome disease;
e.
chest pain;
f.
heart muscle damage; and
g.
chemical sensitivity.
18
55.
The exposure to the agrichemicals experienced by Plaintiff Elaine Zohfeld, in
addition to causing. the injuries identified above, will also likely cause future medical conditions
and complications for which Plaintiff Elaine Zohfeld will be required to monitor, thereby
incurring additional injuries through stress and uncertainty, as well as incurring additional
medical expenses.
56.
The injuries suffered by Plaintiff Elaine Zohfeld have caused and will cause her to
incur damages in an amount in excess of$10,000.00 for medical expenses already incurred, an
amount in excess of $50,000.00 for future medical expenses, and an amount in excess of
$250,000.00 for her pain, suffering and loss offunctions and pleasures of life, and an amount in•
excess of $100,000.00 for lost earning capacity.
WHEREFORE, Plaintiff, Elaine Zohfeld requests entry of a judgment against Defendants
Robert Drake, Noah D. Horton, and Wabash Valley Service Company, jointly and severally, as
follows:
— -
a. Damages in an amount in excess of $10,000.00 for the costs of medical expenses
already incurred and future medical expenses that she will incur;
b. Damages in an amount in excess of $250,000.00 for Plaintiff Elaine Zohfeld’s pain
and suffering and loss ofpleasures and functions of life;
c. Damages in an amount in excess of$100,000.00 for lost earning capacity; and
-
d. Court costs and such other relief as this Court may deemproper.
PLAINTIFF DEMANDS TRIAL
BY JURY AS TO COUNT V
-
19
COUNT VT
-
LOSS OF CONSORTIUM OF PLAINTIFF VERNON ZOHFELD
RELATING
TO
THE MAY 8, 2000 OVERSPRAY
57.
Plaintiffs repeat and re-allege Paragraphs 1-9 and
35-56
inclusive, as and for
their
paragraph
57.
58.
Plaintiff VernonZohfeld has been the lawful husband ofElaine Zohfeld at all
times relevant to this Complaint.
-
59.
By reason ofinjuries and damages sustained by Plaintiff Elaine Zohfeld,
Plaintiff Vernon Zohfeld has suffered the loss ofservices of his wife; PlaintiffVernon
Zohfeld has been and will continue tobe deprived of the companionship, company,
affection and love ofhis wife; Plaintiff Vernon Zohfeld has been compelled and will be
compelled in the future to expend sums of money having services performed for him
which have been previously performed by his wife.
WHEREFORE, Plaintiff Vernon Zohfeld praysjudgment against Defendants Wabash
Valley Service Company, Noah D. Horton, and Robert Drake, jointly and severally, in an
amount in excess of $100,000.00 that is reasonable and equitable for his loss, and for Court
costs, and for such other relief as this Court may deem proper.
PLAINTIFF DEMAND TRIAL BY JURY AS TO COUNT VI
Respectfully submitted,
Vernon and Elaine Zohfeld,
Plaintiffs,
By their attorneys,
HED~NGER&HOWARD
By__
-
20
Hedinger & Howard
1225 S. Sixth St.
Springfield, IL 62703
(217)
523-2753
phone
(217) 523-4366 fax
21
-
1
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Case
4:05-cr-40029-JPG
Document 1
Filed 04/26/2005
Page 1 of 2
ORIGINAL
FILED
IN THE UNITED STATES DISTRICT COURT
APR 262tX5
-
FOR THE SOUTHERN DISTRiCT OF iLLINOIS
CLERK U S DLSTRICT COURT
sOUThER~~~LUNO18
UNITED STATES OF AMERICA,
)
-
-
)
Plaintiff,
)
vs.
)
CRIMINAL NO. ~
WABASH VALLEY SERVICE CO.,
)
GLEN S. KINDER, and
)
Title 7, United States Code,
NOAH DAVID HORTON,
)
Sections 136j(a)(2), 1361(b)(1)(B), and
)
I 361(b)(4), and Title 18, United States Code,
Defendants.
)
Section 2
INFORM
AT!ON
TIlE UNITED STATES ATTORNEY CHARGES:
On or about May 8, 2000, in Hamilton County, within the Southern District ofIllinois.
WABASH
VALLEY
SERVICE COMPANY,
GLEN S. KINDER, and
NOAH DAVID HORTON,
Defendants herein, each ofwhom was a commercial applicatorofpesticides as defined by federal
regulations and statutes, did use a registered pesticide in a mannerinconsistent with its labeling, in
that said Defendants did cause AAtrax 4L and Bicep II Magnum, each of which is a registered
pesticide, to be used in a manner inconsistent with its labeling
—
that is, said defendants caused
AAtrax 4L and Bicep II Magnum to be applied to a field located in Hamilton-County, Illinois, during
a time when wind speed was approximately 20 m.p.h., which was inconsistent with the labelingof
both AAtrax4L and Bicep II Magnum.
EXHIBIT B
Case
4:05-cr-40029-JPG
Document I
Filed 04/26/2005
Page 2 of 2
All in violation ofTitle 7, United States Code, Sections 1 36j(a)(2)(G) and 1 361(b)(I )(B)and
I 361(b)(4), and Title 18, United States Code, Section 2.
UNITED STATES OF AMERICA
RONALD J. TENPAS
United~StatesAttorney
(1
-.-
-
RANDY~.MASSEY
-
--
First Assistant United States Attorney
-
ROBERT
M’2.
L. SIMPKINS
,d~iL~
Assistant United States Attorney
RECOMMENDED BOND:
WABASH VALLEY SERVICE CO.:
$5,000 unsecured
GLEN S. KINDER:
$5,000 unsecured
NOAH DAVID HORTON:
$5,000 unsecured
2

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