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Settlement reached in fatal pesticide lawsuit

By Emiley Morgan | Posted - Dec. 7, 2011 at 4:26 p.m.


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FARMINGTON — The family of two Layton girls who died just days after a fumigant was placed around their home has settled the wrongful death lawsuit they filed against the pesticide company and the employee involved.

The lawsuit was filed in 2nd District Court in March by the family of Rebecca Kay Toone, 4, and her sister, Rachel Ana Toone, 15 months, who died in February of 2010. On Nov. 21, a motion and stipulation was filed and signed by Judge Michael Allphin. It stated that the issue was "fully settled and compromised" and dismissed the case with prejudice, meaning that the family couldn't refile a lawsuit on a similar claim.

The signed order did not outline any of the details other than the fact that each party was to pay for its own attorney expenses.

The Toone family's attorney, Peter Summerill, said the family did not want to comment on the settlement.

Authorities believe the Toone girls might have inhaled phosphine fumes emitted from tablets of Fumitoxin, a rat poison, as the Utah Medical Examiner's Office reported that the girls had elevated levels of phosphorus in their bodies.

The girls' deaths came after Coleman Nocks, an exterminator for Bugman Pest and Lawn Inc., allegedly applied Fumitoxin pellets around the family's home in a manner "inconsistent with labeling."

The complaint named the Bountiful-based pest control company, Nocks, Bugman owners Raymond Wilson Sr. and Raymond Wilson Jr., and five unidentified individuals "who may have sold, provided, distributed or otherwise allowed the other named defendants to possess, acquire, use or apply pesticides … or may have held either an ownership of controlling interest in Bugman."

They called for unspecified damages to compensate for the negligence, infliction of emotional distress, nuisance and "abnormally dangerous activities" they believe were committed by Bugman and Nocks.

Attorneys representing the pesticide company could not be reached Wednesday.

Last February, Wilson Sr. expressed his feelings over the ordeal.

"I feel terrible. I feel terrible for that family. I feel terrible for anyone that would lose their children in an incident related to this," he said at the time.

But as he spoke to reporters, he was reticent to accept a role in what had happened, saying he didn't believe an analysis of the situation had been properly pursued. Last month both Wilson and Nocks changed their pleas to guilty to charges of misapplying a registered pesticide. As part of the plea, Wilson and Nocks did accept responsibility for the deaths.

In a statement issued by the family when the lawsuit was filed, the family said it intended "to see that those responsible for this tragedy are held fully accountable, both within the criminal and civil justice system."

Nocks and the pest control company also faced federal charges and both parties pleaded guilty in U.S. District Court to separate misdemeanor counts of unlawful use of a registered pesticide in October.

Nocks will be sentenced in federal court on Jan. 6.

Less than two months after the Toone girls died, the U.S. Environmental Protection Agency prohibited the residential use of Fumitoxin. The Utah Pest Control and Lawn Care Association — which regulates the use of pesticides — also tightened their rules and increased accountability in the wake of the deaths, mandating that consumers be notified in advance and given specific written information when products labeled "danger" are used.

Email:emorgan@ksl.com

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