Federal pesticide case awaits fate; local court weighs terminating Terminix

Court documents say the powder post beetle was a common target of Terminix exterminators using methyl bromide in the Virgin Islands.

ST. CROIX — A few weeks after Terminix admitted they misused toxic pesticides in the Virgin Islands before a federal judge, a new battle over the same issue began locally. A lawyer representing the pest control company and its corporate parent has told a judge in Superior Court they want to see that case tossed out.

Most recently the head of the VI Department of Justice contested the motion to dismiss. Attorney General Claude Walker says ServiceMaster and Terminix, its subsidiary, violated product safety laws and colluded with its VI franchisees to hide those violations.

The St. Croix lawyer representing the Tennessee corporation in Superior Court accused local prosecutors of trying to piggyback on admissions of guilt that were made in January before District Court Judge Curtis Gomez. Those admissions were linked to a near fatal incident in March 2015 for a family of tourists at a St. John resort.

Attorney Kevin Rames is asking that the case be dismissed because the local court lacks jurisdiction.

On March 29, Terminix Vice President and Secretary Thomas Campbell pleaded guilty to four federal counts of violating the Federal Insecticide, Fungicide and Rodenticide Act.

Those pleas were related to the harm suffered by members of the Esmond family, visitors to St. John from Delaware.

Each count is a Class A misdemeanor.

Campbell also admitted guilt to misuse of a restricted pesticide by company agents or alter egos at 12 locations on St. Croix and one on St. Thomas between September 7, 2012 and February 9, 2015.

Gomez set sentencing in the federal case for July 27.

Through a statement issued by his office on May 5, Walker said that the March 2015 incident, at the Sirenusa Condominium Resort, was part of a seven year pattern involving multiple violations on St. Croix, St. Thomas and St. John.

The local case, filed in December, alleges that ServiceMaster, Terminix LP and Terminix USVI violated the Virgin Islands Pest Control Law and the VI Consumer Fraud and Deceptive Business Practices Act.

“The government brings this action following an investigation — initiated following Sirenusa — that made clear defendants ServiceMaster, Terminix LP, Terminix USVI (collectively, Terminix), for seven or more years engaged in violations of numerous laws of the Territory and that it is only by sheer luck there have not been more known tragedies in the Virgin Islands,” said Assistant Attorney General Carol Thomas-Jacobs.

In addition to the four member Esmond family, a report by the U.S. Environmental Protection Agency documented methyl bromide related ailments to 18 others at the St. John condominium resort during two visits by Terminix exterminators. Those visits occurred in October 2014 and March 2015.

The EPA report described ailments ranging from sore throats, to headaches and skin rashes, lasting no longer than three weeks. Up to 13 more people were believed to have been exposed at the same location around the specified dates but investigators said they were unable to contact them.

Part of the local government’s legal strategy is to invoke the long arm statute, to hold large corporations liable for tortious injury caused by subsidiaries, agents and others working with their products or services.

In his filing Rames said VI Justice made only a flimsy connection between the local franchise holder — a company doing business as Bugbusters — and ServiceMaster or Terminix LP.

“The mere fact that an indirect subsidiary such as Terminix USVI is ‘at home’ in a jurisdiction is not sufficient to make an indirect parent at home,” Rames said.

But local prosecutors point to the website used by the franchisee, with the Terminix name, the appearance of corporate logos and other features to establish the business link. Added to that was the allegation that franchisees in the Virgin islands “continued to market, sell and provide fumigation services using methyl bromide…”

Methyl bromide, a highly toxic pesticide, is prohibited for use in residential settings by federal law.

Local prosecutors also said senior safety managers at Terminix knew that company employees were not properly trained to handle methyl bromide. They also accuse company officials of colluding with its local agents to import methyl bromide into the territory.

A judge’s ruling is expected as to whether to terminate the local case or allow it to proceed.