Ansagay v. Dow Agrosciences LLC

• Decision Date: 29 December 2015
• Docket Number: CIVIL NO. 15-00184 SOM/RLP
• Citation: 153 F.Supp.3d 1270
• Court: U.S. District Court — District of Hawaii
• Parties: Nena Ansagay, et al., Plaintiffs, v. Dow Agrosciences LLC; Van Waters & Rogers Corporation, Defendants.

153 F.Supp.3d 1270

Nena Ansagay, et al., Plaintiffs,

v.Dow Agrosciences LLC; Van Waters & Rogers Corporation, Defendants.

CIVIL NO. 15-00184 SOM/RLP

United States District Court, D. Hawai'i.

Signed December 29, 2015

Brian K. Mackintosh, Michael Jay Green, Honolulu, HI, for Plaintiffs.

Dean T. Barnhard, Joseph G. Eaton, Barnes & Thornburg LLP, Indianapolis, IN, Donna C. Marron, Kenneth S. Robbins, Margery S. Bronster, Bronster Fujichaku Robbins, Honolulu, HI, for Defendants.

ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Susan Oki Mollway

, United States District Judge

I. INTRODUCTION.

Before the court is Defendant Dow Agrosciences LLC's Motion for Summary Judgment against Plaintiffs. Plaintiff Nena Ansagay brought a suit individually; on behalf of the estate of her deceased husband, Benjamin O.K. Ansagay; and on behalf of their minor child, in connection with the death of Benjamin Ansagay, which Nena Ansagay attributes to his contact with Dursban TC, a pesticide manufactured by Dow. Dow contends that all the state-law claims are preempted under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”).

For the reasons discussed below, the court denies Dow's motion.

II. BACKGROUND.

Dow developed, manufactured, marketed, and distributed an insecticide called “Dursban TC,” which has as an active ingredient the chemical chlorpyrifos. See ECF No. 17-1, PageID # 204.

In 1981, Dow registered Dursban TC with the United States Environmental Protection Agency, pursuant to FIFRA. See ECF No. 16-1, PageID # 170. FIFRA is a comprehensive regulatory statute regulating the use, sale, and labeling of pesticides. See 7 U.S.C. § 136 et seq.

FIFRA requires a manufacturer seeking to market a pesticide to first petition the EPA for registration. As part of the petition process, the manufacturer must submit data about the pesticide, as well as a proposed label. See 7 U.S.C. § 136a(c)(1)(C), (F).

Dursban TC was sold with an EPA-approved product label that included the following words: “WARNING,” “MAY BE FATAL IF SWALLOWED,” and “EXCESSIVE ABSORPTION THROUGH SKIN MAY BE FATAL.” See ECF No. 17-3, PageID #s 207-08. The label instructed users to observe the following handling procedures for safety:

Wear protective clothing when using or handling this product to help avoid exposure to eyes and skin. As a minimum, chemical workers' goggles, neoprene or natural rubber gloves and footwear, a long-sleeved shirt and long-legged pants or coveralls are recommended. To avoid breathing spray mist during application in confined areas, wear a mask or respirator of a type recommended by [the National Institute for Occupational Safety and Health] for filtering spray mists and organic vapors.

See id. The label also included a “Warranty Limitations and Disclaimer” section that said, “[T]his product conforms to the chemical description on the label and is reasonably fit for the purposes stated on the label when used in strict accordance with the directions therein under normal conditions of use.” See id. , PageID #s 209-10.

From 1988 to 1991, Mr. Ansagay, a pesticide applicator for XTermco, Inc., used Dursban TC on an almost daily basis. See ECF No. 32, PageID # 809. Before his death, he admitted that he had not worn a respirator when applying Dursban TC, notwithstanding the instruction on the safety procedures on its label. See ECF No. 24, PageID # 536. According to Mr. Ansagay's deposition testimony in a related worker's compensation case against XTermco, he did not believe he needed to wear a respirator because he had been told by the distributors of Dursban TC that the pesticide was safe for humans and would “flush out” of his body within a week. See id. One of Mr. Ansagay's co-workers corroborated this statement, testifying that “representatives that sold Dursban TC to XTermco, Inc., told me and other ground treatment workers, that Dursban was safe to use because if it got in your system it would flush out of your system within one week.” ECF No. 20-3, PageID # 423. The distributors that allegedly sold Dursban TC to XTermco were Defendant Van Waters & Rogers Corporation and Brewer Environmental Industries. See ECF No. 20-2, PageID # 421. Mrs. Ansagay alleges that Dow intended that sellers like Van Waters, and users like Mr. Ansagay, would rely on claims Dow published stating that Dursban TC was safe. See ECF No. 32, PageID #s 809-10.

Mrs. Ansagay alleges that Mr. Ansagay began to suffer from an assortment of health problems after his employment with XTermco ended. From 1999 to 2011, Mr. Ansagay was treated for depression. See id. , PageID # 811. During this time, Mr. Ansagay was also diagnosed with hypogonadism

and male infertility, which was originally attributed to a genetic disorder. See id. In 2011, Mr. Ansagay learned that he had contracted lung cancer. See id.

On November 21, 2013, Mr. Ansagay filed a worker's compensation claim against XTermco that ended with XTermco's insurer accepting liability. See id. , PageID # 812. Mr. Ansagay died on August 15, 2014, from lung cancer

. See id. , PageID # 809.

On April 2, 2015, Mrs. Ansagay, on behalf of herself, Mr. Ansagay's estate, and their minor child, instituted a civil action against Dow in the Circuit Court of the First Circuit, State of Hawaii, Civil No. 15–1–0602–04. See ECF No. 1-1, PageID # 11.

On May 18, 2015, Dow removed the action to this court. See ECF No. 1.

In her Complaint, Mrs. Ansagay alleges that Mr. Ansagay's exposure to Dursban TC resulted in his infertility, depression, hypogonadism

, lung cancer, and death. See ECF No. 32, PageID # 806. The Complaint asserts claims against Dow for: (1) wrongful death; (2) negligence that caused Mr. Ansagay's cancer ; (3) negligence that caused Mr. Ansagay's infertility and depression; (4) breach of express warranties; (5) breach of implied warranty; (6) strict product liability; (7) defective design, testing, and/or manufacturing; (8) negligent infliction of emotional distress; and (9) intentional infliction of emotional distress. See id. , PageID #s 816-21.¹

III. STANDARD OF REVIEW.

Summary judgment shall be granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a)

(2010). See Addisu v. Fred Meyer, Inc. , 198 F.3d 1130, 1134 (9th Cir.2000). A movant must support his position that a material fact is or is not genuinely disputed by either “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials”; or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett , 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323, 106 S.Ct. 2548. A moving party without the ultimate burden of persuasion at trial—usually, but not always, the defendant—has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos. , 210 F.3d 1099, 1102 (9th Cir.2000).

The burden initially falls on the moving party to identify for the court those “portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n , 809 F.2d 626, 630 (9th Cir.1987)

(citing Celotex Corp. , 477 U.S. at 323, 106 S.Ct. 2548 ). “When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (footnote omitted).

The nonmoving party must set forth specific facts showing that there is a genuine issue for trial. T.W. Elec. Serv., Inc. , 809 F.2d at 630

. At least some “ ‘significant probative evidence tending to support the complaint’ ” must be produced. Id. (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co. , 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968) ). See Addisu , 198 F.3d at 1134 (“A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact.”). “[I]f the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial.” Cal. Arch'l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc. , 818 F.2d 1466, 1468 (9th Cir.1987) (citing Matsushita Elec. Indus. Co. , 475 U.S. at 587, 106 S.Ct. 1348 ). Accord Addisu , 198 F.3d at 1134 (“There must be enough doubt for a ‘reasonable trier of fact’ to find for plaintiffs in order to defeat the summary judgment motion.”).

All evidence and inferences must be construed in the light most favorable to the nonmoving party. T.W. Elec. Serv., Inc. , 809 F.2d at 631

. Inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. Id. When “direct evidence” produced by the moving party conflicts with “direct evidence” produced by the party opposing summary judgment, “the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact.” Id.

IV. ANALYSIS.

Dow's motion contends that Mrs. Ansagay's tort claims are all preempted under FIFRA because it would be...