Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc.

Decision Date05 January 1993
Docket NumberNo. 91-1085,ARKANSAS-PLATTE,91-1085
Citation981 F.2d 1177
Parties, 61 USLW 2452, 23 Envtl. L. Rep. 20,478, Prod.Liab.Rep. (CCH) P 13,372 & GULF PARTNERSHIP, a Colorado general partnership, Plaintiff-Appellee, v. VAN WATERS & ROGERS, INC., a Washington corporation; The Dow Chemical Company, a Delaware corporation, Defendants-Appellants. National Agricultural Chemicals Association; Western Agricultural Chemicals Association; National Pest Control Association; National Agricultural Aviation Association; Chemical Specialties; American Wood Preservers Institute; Chemical Manufacturers Association; Product Liability Advisory Council, Inc.; Trial Lawyers for Public Justice, Amici Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

Richard R. Young, Brent E. Rychener, and Walter H. Sargent, Holme Roberts & Owen, Colorado Springs, CO, for plaintiff-appellee.

David A. Bailey, Dean R. Massey, and Anne D. Weber, Parcel, Mauro, Hultin & Spaanstra, P.C., Denver, CO, for defendant-appellant, Van Waters & Rogers Inc.

C. Michael Montgomery and Peter S. Dusbabek, Montgomery, Green, Jarvis, Kolodny & Markusson, Denver, CO, for defendant-appellant, The Dow Chemical Co.

Before LOGAN and MOORE, Circuit Judges, and ALLEY, District Judge. *

OPINION AND ORDER ON REMAND

JOHN P. MOORE, Circuit Judge.

After examining the briefs this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P 34(e); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

This case is before us on remand from the Supreme Court. --- U.S. ----, 113 S.Ct. 314, 121 L.Ed.2d 235. To aid our compliance with the mandate, we ordered the parties to file simultaneous briefs discussing the applicability of Cipollone v. Liggett Group, Inc., --- U.S. ----, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). Having considered the matters on file, we conclude we must adhere to the opinion previously rendered in this case. Arkansas-Platte v. Van Waters & Rogers, Inc., 959 F.2d 158 (10th Cir.1992).

The mandate gave no specific direction to us; therefore, the parties have differing views of the scope of the remand. Plaintiff, Arkansas-Platte, broadly reads the remand, but defendants take a more narrow view.

Plaintiff argues as a result of the remand our entire holding has been vacated, including our determination that pre-1972 law does not apply to this case. To the contrary, argue the defendants. They contend the Court has sent us only one issue for consideration and that is whether Cipollone reverses our holding that 7 U.S.C. § 136v(b) preempts a state common law duty to warn. Thus, our first consideration is to decide the effect of the Court's remand.

Plaintiff has always, but unsuccessfully, argued the law in effect in 1987, the year in which contamination was discovered, does not apply to its claims against defendants. It contends liability must be predicated upon defendants' conduct prior to the time of the discovery. That issue was hotly contested, and we resolved it in favor of defendants by holding the claim did not arise until after the 1972 amendment of FIFRA. Arkansas-Platte, 959 F.2d at 160-61. Without a lengthy discussion, we held plaintiff's claim did not exist until it acquired the contaminated property.

Plaintiff now contends the Court reversed this holding. It points out Mrs. Cipollone's cancer was not diagnosed until 1984; therefore, her claim did not arise until that time. Yet, the Court's analysis of the Cipollone claim took into account statutes that existed before 1984. Therefore, plaintiff reasons, the Court must have disapproved our analysis of when Arkansas-Platte's claim arose. This argument is not persuasive.

Mrs. Cipollone started smoking and therefore was exposed to the consequences of tobacco smoke in 1942. Thus, her claim must logically be a continuing claim that has its foundation in the events that occurred when she first started to smoke. In contrast, until Arkansas-Platte came into possession of the contaminated property it had no claim against the defendants. Neither it nor any of its employees had any exposure to defendants' products until Arkansas-Platte moved onto the contaminated premises. Therefore, assuming plaintiff has any claim at all, it can only arise from its ownership of that land. 1

Nonetheless, a more significant reason belies plaintiff's argument. We find no indication in Cipollone that a question was ever raised, let alone decided, about when the plaintiff's claim arose in that case. Thus, not only is the timing and nature of Mrs. Cipollone's claim different from that of the plaintiff in this case, but also her case reflects no holding of the Supreme Court about the ripening of that claim.

In short, although it is not disputed plaintiff has never given up on the issue of when its claim arose, we do not believe the remand encompasses our holding on that question. That belief is further supported by the fact that the only issue this case has in common with Cipollone is the issue of preemption. Therefore, we shall only reconsider our holding on that issue. 2

After reviewing the briefs and the Court's holding, we conclude Cipollone does not require a conclusion different than the one we reached initially. We determined the legislative language relating to labeling contained in 7 U.S.C. § 136v(b) results in preemption, and Cipollone does not undercut that determination. Indeed, our conclusion is re-enforced because the labeling provision of § 136v(b) is as inclusive as that contained in § 5(b) of the Public Health Cigarette Smoking Act of 1969, 15 U.S.C. 1334(b), which the Court held constituted a preemption of state common law labeling and duty to warn claims. Cipollone, --- U.S. at ---- - ----, 112 S.Ct. at 2621-22.

Section 136v(b) prohibits a state from imposing "any requirement for labeling or packaging in addition to or different from those required under this subchapter." (emphasis added). In comparison, section 5(b) of the Cigarette Smoking Act states:

No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.

(emphasis added). Although the words employed in § 136v(b) of FIFRA are different from those in § 5(b) of the Cigarette Smoking Act, their effect is the same. Section 136v(b) exists in the context of...

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