'Not guilty' pleas in Fumitoxin death case

Feb 25 2011 - 11:49pm

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Nocks
Nocks

SALT LAKE CITY -- A former pest exterminator and the company he used to represent both entered not guilty pleas to charges that they misapplied the pesticide Fumitoxin around a house, which eventually led to the deaths of two Layton girls.

Bugman Pest and Lawn Inc. and Coleman Nocks, the exterminator who buried several Fumitoxin pellets in the front and back of Nathan and Brenda Toone's home in February 2010, have each been charged with three counts of unlawful use of a registered pesticide, class A misdemeanors.

One of those counts deals with the deaths of Rebecca and Rachel Toone, while the two other counts come from instances in which investigators say Fumitoxin pellets were applied around homes in a manner "inconsistent with labeling."

Nocks, 63, and the company appeared separately before Magistrate Judge Samuel Alba in U.S. District Court in Salt Lake City.

Alba set a May 2 trial date before Judge Dee Benson to try both cases together.

Nocks, who declined to speak with the media, is very saddened and worn down by what has happened, said his attorney, Bob Steele.

"It's going to be an exhausting process," Steele said. "There are two children dead, and the allegations are that he had a hand in causing that."

Rebecca, 4, and her sister Rachel, 15 months, died in the days after Nocks' visit to the home.

The medical examiner's reports indicate the two girls had "elevated phosphorous levels and lung damage consistent with inhaling a harmful substance."

Nocks faces up to a $100,000 fine per count. However, if at the time of sentencing the judge rules the deaths were caused by the misapplied pesticide, the penalty could change to one year in prison and a $250,000 fine per count.

Bugman Pest and Lawn Inc. faces a fine of $200,000 on each count if convicted for its role, and that fine would also change to $500,000 per count if the deaths are considered in the sentencing.

The company does not feel responsible for the deaths, nor that any misapplication of the pesticide was performed.

"Bugman has a long history of safety and adherence to procedures," said Dennis James, attorney for Bugman Pest and Lawn Inc.

"There are in-house requirements, and there is also a long history of enforcement and discipline of those policies and procedures."

The Environmental Protection Agency has since banned the residential use of Fumitoxin.

Bugman Pest and Lawn Inc.'s president, Ray Wilson, said he also is still saddened about the deaths of the two Toone girls. However, he pointed out that there could have been another factor in those deaths.

"What the public has not been told is that carbon monoxide alarms (in the home) had gone off," Wilson said.

He said officials from Questar and the police and fire departments all responded to the house and did not smell anything the day before Rebecca died.

"If anyone would have smelled that, they would never have let the family back in," Wilson said.

Assistant U.S. Attorney Jared Bennett said the counts against Nocks and his former employer are not about proving the girls died as a result of the Fumitoxin.

He said justice needs to be served, and it is the U.S. Attorney Office's belief that Nocks misapplied the pesticide four different ways.

"Specifically, he applied the pesticide too close to the home. He applied it when the temperature was too low. He applied it without providing the homeowners with the material safety data sheet, which provides helpful information when someone is exposed to the pesticide, and basically violated those provisions which the label requires," Bennett said.

He gave 12 discs of information to the two defendants. They will have until March 25 to review that material and file any motions.

Questions for Benson need to be submitted by April 29.

Alba also said that plea negations, if any, should be completed by April 18 in order to avoid calling a jury.

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