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September 21, 2014

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Family files suit alleging exposure to pigeon poison

Shortly after moving into a Henderson apartment complex three years ago, Lisa Casey got light-headed whenever she stood up.

Her headaches and dizziness led to vomiting. And it got just as bad for her youngest son, Shawn, who became so ill he missed 60 days of school and was held back a grade. Her other two sons also developed aches and pains.

Dr. Michael Casey, Lisa's husband and a surgical resident at University Medical Center, escaped illness. But his concern over his family's health led him to discover what he believed to be the culprit -- a controversial odorless bird poison that is legal in Nevada and throughout much of the country but banned in New York City and San Francisco, as well as in Great Britain.

In a lawsuit filed on Nov. 17, the Casey family alleged they were unwittingly exposed to Avitrol, which is commonly used in Nevada to ward off pigeons. The product is designed to scare off pigeons but kills many of them by attacking their nervous systems.

After first becoming ill in 2000, Lisa Casey had menstrual cycles every three weeks and, because of excessive hemorrhaging, underwent a complete hysterectomy in February 2001, the lawsuit stated. She also went from 130 pounds to 104 pounds in a single month.

Even now, she said she cannot pursue her hobby as an abstract acrylic painter because of low energy and depression.

"I still tire real easily," she said in her Las Vegas home. "I still have seizures and I get stressed out."

Shawn Casey, who is now 12, was ill the entire winter of 2000-2001 and was found to have parasites in his gastrointestinal tract. The result was painful cramping. He missed so much school he was forced to repeat fourth grade.

He and his brothers, Benjamin, 16, and Scott, 14, still suffer aches and pains and are no longer able to participate in scouting activities, their parents said.

"When Scott runs he starts to blank out and lose his vision," Michael Casey said.

While the chemical agent in Avitrol has been used experimentally to treat multiple sclerosis patients, the U.S. Environmental Protection Agency reported in 1999 that no human poisonings had occurred through "ordinary use" of the toxic substance.

Unique civil lawsuit

What makes the civil lawsuit unique is that the family is attempting to prove that the illnesses were caused by the "ordinary use" of Avitrol -- to ward off pigeons -- but that the bird poison was applied improperly and without their knowledge.

There had been only two reported cases of humans who became ill after accidental exposure to the chemical agent contained in Avitrol, the EPA stated in 1999 in its latest update on the substance.

Those involved two Virginia adults who ingested the poison in 1978, believing it was an aphrodisiac. Both experienced abdominal discomfort, nausea and dizziness and one had seizures and needed a ventilator. They recovered after three days, the EPA reported.

The Casey lawsuit names as defendants Phoenix Pest & Termite Control of Nevada Inc. and the family's former residence, Galleria Palms Apartments at 625 Whitney Ranch Drive in Henderson.

The family alleges that the apartment management initially lied about the use of bird poison on the property.

"I just felt we were treated like cattle," Lisa Casey said bluntly.

Phone messages for officials of the pest control company weren't returned. Craig Walsh, senior vice president of operations for apartment manager Standard Management Co., one of the defendants in the lawsuit, said "it was an incident we were aware of" but he had no further comment.

Legal strategy

Attorney Ronald Serota of Las Vegas, who is representing the family, said he purposely did not sue Avitrol Corp., the Tulsa, Okla., manufacturer of the toxic substance, because of legal strategy. But he said he would not be surprised if the lawsuit forced Nevada to ban Avitrol.

"I'm hoping the lawsuit raises public awareness of the dangers of Avitrol," Serota said. "There is a need to use certified applicators of Avitrol on a more consistent basis. Property managers also should tell residents what they're doing when they use Avitrol."

But Avitrol Corp. president Kelly Swindle said he is confident the plaintiffs will be unable to prove that his product caused their illnesses.

"We've actually never had a case against the product," Swindle said. "I feel quite confident that Avitrol was not the problem here."

Avitrol was developed by Phillips Petroleum Co. in the early 1960s and soon became the most widely used pigeon poison in the country. A white powder with the scientific name of 4-aminopyridine, it is added to grain baits such as corn kernels. It is most commonly applied on rooftops after the area has been pre-baited with untainted grains.

The intent, according to the manufacturer, is for a few birds to exhibit abnormal reaction immediately after eating the tainted kernels, scaring off other members of the flock. The birds who eat the toxic kernels are expected to die, although it can take several hours for that to happen.

Avitrol has been criticized by animal rights activists who claim that too many birds are killed by pest control companies that apply maximum doses and that the slow death by poisoning is inhumane.

The criticism extends to the fact that many of the affected birds go into convulsions and appear to hallucinate before they die and that the poison is indiscriminate because it can kill other birds and mammals. And the critics argue that pigeons will often return to the same location within months.

"There are more humane ways to solve conflicts with pigeons," John Hadidian, urban wildlife program director for the Humane Society of the United States in Washington, said.

Banned in New York

In New York City the substance has been banned since 2000, after pigeons were seen literally dropping from ledges of Manhattan skyscrapers. An advocate of the ban was Ward Stone, the lead wildlife pathologist for the New York Department of Environmental Conservation, who found Avitrol in a dead peregrine falcon.

"One problem with Avitrol is that it doesn't kill only target birds," Stone said. "It can kill any bird that is attracted to it. Changing the architecture of a building fundamentally is the better way to go."

A common complaint is that the dead pigeons are often left to rot instead of being removed from public view as recommended by the manufacturer.

Avitrol has been used in Nevada since at least the 1970s, with no reports of human ailments prior to the Casey lawsuit, according to the Nevada Department of Agriculture.

Of the 320 licensed pest control businesses in Southern Nevada, fewer than 50 use the toxic substance, Thomas Smigel, regional manager of the state agriculture department, said. All Avitrol users, which include hotels, must pass tests and be federally certified to use Avitrol since it is considered a restricted-use pesticide.

Chuck Moses, an environmental scientist with the agriculture department, said the state in the past five years has levied four fines in the $500 to $1,000 range for Avitrol-related violations of pesticide regulations. Two fines involved improper record-keeping of Avitrol use, one was for an individual who wasn't certified to use the poison, and the other was because the pesticide applicator failed to pick up unused tainted corn kernels in a timely manner.

In a separate enforcement action earlier this month, the EPA fined Univar USA Inc. of Kirkland, Wash., $10,450 for selling an Avitrol product to a Las Vegas company, All Pro Pest Control, that was not certified to use the substance.

The alleged suffering of the pigeons is something Avitrol Corp. sharply disputes. The company points to a 1979 study by pathologists at the University of Ottawa in Canada who concluded that pigeons that ingested the poison did not experience pain despite going through convulsions.

"Avitrol appears to be humane based on scientific evidence," the report concluded.

The Casey lawsuit raises an entirely different allegation: that the Avitrol was not applied properly, causing Shawn Casey to come in contact with the substance outdoors and then, unwittingly, contaminate his household.

Skin absorption eyed

The Caseys said they believe that Shawn and to a lesser extent, Scott, absorbed the Avitrol through their skin while wrestling or playing barefoot in the apartment complex yard. The parents also said the Avitrol -- which resembled mashed corn mix -- was tracked into their residence by the boys' shoes, scooters and skates.

Swindle, though, said he doesn't believe the children would have been seriously harmed unless they swallowed large quantities of Avitrol.

"We've heard of people sharing concerns that it's possible for Avitrol to blow off of a roof but I've never heard of anything like this," he said. "I have touched this stuff on a daily basis for 30 years. The only way you would have a negative reaction to it is if you ingested a large quantity of it."

Michael Casey took a sample of the Avitrol along with two of the dead pigeons to the local EPA office. A state agricultural department inspection team then visited the apartment complex in November 2001 and found "one or two" kernels near the yard that contained Avitrol and also examined a dead pigeon that had been poisoned.

Casey said he never heard of Avitrol until the agriculture department told him what it was. When he began doing his own research on the substance, he didn't like what he found. The family, worried about their health, moved out of Galleria Palms in January 2002.

"I don't think it should be used because you can't control what wild birds will eat," Michael Casey said of Avitrol.

Lisa Casey also said the poison should be banned in Nevada.

"I realize pigeons make the dung," she said. "But if Avitrol can kill a bird, it can also kill a dog or cat. And kids can pass by and put it in their mouth. They shouldn't put anything like that outside."

The manufacturer's directions indicate that Avitrol applicators wear gloves and remove unused kernels the same day they are applied.

"We don't want people touching it because there are lawyers out there who would like to sue us," Swindle said.

The labeling was upgraded by Avitrol Corp. after state agriculture departments in Nevada and other states pointed out that the instructions weren't specific enough. There had been numerous citizen complaints in Nevada in the mid-1990s that unused bait and dead pigeons weren't being removed in a timely fashion.

"Where uneaten bait may be a hazard to other birds or animals, it should be picked up at the end of each day," the instructions state. "Pick up and dispose of dead birds by burial."

Based on the fact the state has levied only one fine in Southern Nevada for failure to retrieve unused baits, Moses said he believes pest control applicators have been doing a better job of cleanup than in prior years. But he and Smigel said the state still fields complaints about dead pigeons that haven't been removed, particularly during summer months.

Smigel said that if his department is able to establish who killed the pigeons, it usually just takes a phone call to the party responsible to get the birds removed.

"We have an established population of pigeons," Smigel said. "It has always been an urban problem and Las Vegas is no different than any other city. If you use Avitrol, you're just pushing them from one site to another."

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