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From Products Liability Law Daily, December 30, 2015

State law claims against pesticide maker not preempted under FIFRA

By Susan Lasser, J.D.

In an action stemming from the injuries and death allegedly caused by a worker’s contact with Dursban TC, a pesticide manufactured by Dow Agrosciences LLC, state-law claims asserted by the worker’s spouse were not preempted under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), a federal district court in Hawai’i ruled (Ansagay v. Dow Agrosciences LLC, December 29, 2015, Mollway, S.).

Dow developed, manufactured, marketed, and distributed the insecticide, Dursban TC, which has as an active ingredient the chemical chlorpyrifos. Dow registered Dursban TC in 1981 with the U.S. Environmental Protection Agency (EPA), pursuant to FIFRA, a comprehensive regulatory statute regulating the use, sale, and labeling of pesticides. FIFRA requires a manufacturer seeking to market a pesticide to first petition the EPA for registration; and then as part of the petition process, the manufacturer must submit data about the pesticide, as well as a proposed label. Dursban TC was sold with an EPA-approved product label warning that the product could be fatal if swallowed and that “excessive absorption” through the skin could be fatal. The label also instructed users to observe certain handling procedures for safety, in addition to including a “Warranty Limitations and Disclaimer” section.

Pesticide exposure. From 1988 to 1991, the worker, a pesticide applicator for a Hawaiian exterminator, used Dursban TC on an almost daily basis. Before his death, he admitted that he did not wear a respirator when applying Dursban TC, notwithstanding the instruction on the product label’s safety procedures. He explained that he believed that he did not need to wear a respirator because he had been told by the product’s distributors that the pesticide was safe for humans and would “flush out” of his body within a week. His testimony was corroborated by co-workers.

Allegations. The worker’s wife, on behalf of herself, her husband’s estate, and their minor children, filed suit against Dow. She alleged that her husband began to suffer from a number of health problems after his employment with the extermination company ended. In 2011, he learned that he had contracted lung cancer. The wife alleged that his exposure to Dursban TC resulted in his infertility, depression, hypogonadism, lung cancer, and death; and her complaint asserted claims against Dow that included negligence and strict product liability.

Dow argued that the spouse’s tort claims were preempted under FIFRA because it would be impossible for the manufacturer to comply with both FIFRA and the state-law duties that the spouse sought to impose. The court, however, rejected the argument, and determined that FIFRA did not preempt the claims.

FIFRA express preemption clause. Congress included an express preemption clause in FIFRA, the language of which provided the scope of preemption under the statute. The section provides that generally a state can “regulate the sale or use of any federally registered pesticide or device” in that state, but only to the extent the regulation does not permit any sale or use that is prohibited by the federal law; and provides that the state cannot impose “any requirements for labeling or packaging in addition to or different from those required” under the statute.

Bates v. Dow Agrosciences LLC. The court agreed with the worker’s spouse that Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005), was controlling precedent for the current case insofar as it addressed FIFRA’s preemptive effect on state-law claims. In Bates, the U.S. Supreme Court held that FIFRA did not preempt claims that included defective design, defective manufacture, and negligent testing. The Court observed that the FIFRA express preemption provision “authorizes a relatively decentralized scheme that preserves a broad role for state regulation” and that it mainly preempts competing state labeling standards and “any statutory or common-law rule that would impose a labeling requirement that diverges from those set out in FIFRA and its implementing regulations.” The Bates Court also set forth a two-part test to determine whether a claim was preempted by FIFRA: (1) the claim must concern a requirement for labeling or packaging (rules governing the design of a product are not preempted); and (2) the claim must impose a labeling or packaging requirement that is “in addition to or different from those required” under the statute. The High Court instructed that an “occurrence that merely motivates an optional decision does not qualify as a requirement” under the FIFRA preemption test. As such, the Court in Bates held that claims for defective design, defective manufacture, negligent testing, and breach warranty were not preempted because none concerned requirements for “labeling or packaging.”

Dow’s arguments. Dow contended that Bates did not apply to the current case because Bates addressed only express preemption, while the current case involved implied conflict preemption. However, the district court found that briefs in Bates did address implied preemption, but that the arguments raised by both parties were ignored in the majority opinion, indicating that the Supreme Court rejected impossibility preemption “sub silentio.” Further, the court found that Dow, as the party moving for summary judgment on its preemption defense, had the burden of showing that it was impossible for it to comply with both FIFRA and state law, but that it failed to carry this burden. FIFRA and the EPA recognized certain regulation by states within their borders.

Dow also argued that the district court’s analysis should be guided by Mutual Pharmaceutical Co., Inc. v. Bartlett, 133 S. Ct. 2466 (2013) and Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011), instead of Bates. However, Bartlett and Mensing involved preemption under the Federal Food, Drug, and Cosmetic Act (FDCA); and although Bartlett and Mensing were decided more recently, neither overruled Bates as it applied to FIFRA. In particular, the statutory scheme in the FDCA did not contemplate FIFRA’s level of state participation in regulating products within a federal statute’s purview, according to the district court.

Negligence claims. The court held that the spouse’s negligence claims were not preempted under FIFRA. Her negligence claims alleged that the pesticide manufacturer owed a duty of care not to injure a consumer or user of Dursban TC. One negligence claim alleged that Dow breached that duty by supplying the carcinogenic Dursban TC, and that this caused the worker’s cancer. The other negligence claim alleged that Dursban TC caused the worker to suffer infertility and depression. The claims were not preempted under Bates because they did not impose a labeling or packaging requirement. Rather, they were based on the premise that Dursban TC itself was unsafe.

Defective design, testing, and/or manufacturing. The wife also alleged that Dow was negligent in designing, testing, and manufacturing Dursban TC. The court found these claims similar to the other negligence claims and that they also were not preempted by FIFRA. Moreover, the court rejected the manufacturer’s attempt to characterize these claims as failure-to-warn claims. The common thread in the wife’s negligence claims was that Dow designed an unreasonably dangerous substance, according to the court.

Strict product liability. The spouse’s strict liability claim asserted that Dursban TC had a defect which caused cancer, male infertility, and depression, and that this defect made the product unreasonably dangerous for its intended or reasonably foreseeable use. As long as this claim was not based on an insufficient warning, it was not preempted by FIFRA.

Breach of express and implied warranty claims. The court further held that FIFRA did not preempt claims for breach of an express warranty, because express warranty claims were not based on a requirement that a manufacturer label its products in any particular way. The wife's express warranty claims were not preempted as based on “labeling requirements” because those claims were derived solely from Dow, the warrantor, and were not imposed by state law. Moreover, as to any warranty, express or implied, the court noted that the EPA allowed a label to be revised without registration of an amended or new product if the revision consisted of “[c]hanges in warranty or warranty disclaimer statements.” As such, Dow could potentially comply with FIFRA and at the same time alter the warranties on the Dursban TC label.

Intentional and negligent infliction of emotional distress claims. Because the wife’s intentional and negligent infliction of emotional distress claims were not premised on any allegation that the packaging or labeling of Dursban TC provided an inadequate warning of its dangers or should have otherwise been changed, neither claim was preempted.

Wrongful death. Wrongful death is a derivative claim under Hawaii law. Therefore, to the extent that the wrongful death claim was based on underlying claims that were not preempted, the wrongful death claim was not preempted.

Restatement (Second) of Torts §402A. Finally, the court rejected the manufacturer’s argument that its EPA-approved label was a legally adequate warning that barred all claims, pursuant to §402A of the Restatement (Second) of Torts, which had been adopted by Hawai’i.

The case is Civil No. 15-00184 SOM/RLP.

Attorneys: Brian K. Mackintosh (William S. Richardson School of Law) for Nena Ansagay. Dean T. Barnhard (Barnes & Thornburg) for Dow Agrosciences LLC.

Companies: Dow Agrosciences LLC; Van Waters & Rogers Corp.

MainStory: TopStory PreemptionNews ChemicalNews HawaiiNews

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