Arnold v. The Dow Chemical Co.

• Court: California Court of Appeals
• Citation: 110 Cal.Rptr.2d 722,91 Cal. App. 4th 698
• Parties: (Cal.App. 2 Dist. 2001) ASHLEY ARNOLD et al., Minors, etc., et al., Plaintiffs and Appellants, v. THE DOW CHEMICAL COMPANY et al., Defendants and Respondents. B143708 SECOND APPELLATE DISTRICT, DIVISION TWO Filed
• Decision Date: 14 August 2001

110 Cal.Rptr.2d 722 (Cal.App. 2 Dist. 2001) ASHLEY ARNOLD et al., Minors, etc., et al., Plaintiffs and Appellants,
v.
THE DOW CHEMICAL COMPANY et al., Defendants and Respondents. B143708 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT, DIVISION TWO Filed 8/14/01

(Los Angeles County Super. Ct. No. EC024869)

APPEAL from the judgment of the Superior Court of Los Angeles County. Carl J. West, Judge. Affirmed in part, reversed and remanded in part.

Law Offices of Raphael Metzger, Raphael Metzger and James A. von Sauer for Plaintiffs and Appellants.

Haight, Brown & Bonesteel, Farah Nicol; Barnes & Thornburg, Andrew J. Detherage and Charles P. Edwards for Defendants and Respondents The Dow Chemical Company and Dow Agrosciences, LLC.

Prindle, Decker & Amaro, Mark Pepys; Baker & Hostetler, James L. Moore and John W. Ghezzi for Defendant and Respondent Bayer Corporation.

Seyfarth Shaw, John D. Dwyer, Todd C. Hunt and Richard E. Elder for Defendant and Respondent FMC Corporation.

Akin, Gump, Strauss, Hauer & Feld, David C. Allen, Phillip J. Eskenazi and Lisa C. Phelan for Defendant and Respondent Van Waters & Rogers Inc.

Klinedinst, Fliehman & McKillop, Kendra J. Hall and Jennifer N. Lehman for Defendants and Respondents Lumber City Corporation and Ezell Nursery Supply, Inc.

Law Offices of Gerald Philip Peters, Gerald Philip Peters; Snyder, Dorenfeld & Tannenbaum and Bradley A. Snyder for Defendant and Respondent W.B. Scott Company, Inc.

CERTIFIED FOR PUBLICATION IN THE OFFICIAL REPORTS

NOTT, J.

Appellants Ashley and Alexa Arnold, through Michelle Arnold, as guardian ad litem, appeal from a judgment entered after the trial court granted summary judgment in favor of respondents Q.B. Scott Company, Inc. (Scott), Lumber City Corporation (Lumber City), Ezell Nursery Supply, Inc. (Ezell), Dow Agrosciences LLC and The Dow Chemical Company (collectively referred to as Dow), Van Waters & Rogers Inc. (Van Waters), FMC Corporation (FMC), and Bayer Corporation (Bayer; collectively referred to as respondents).

At issue is whether the preemption provisions of the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 136v; FIFRA) operate to foreclose appellants' state common law causes of action. We conclude that appellants' causes of action are not preempted. It is important to note that if the state common law claims are preempted, then appellants will have absolutely no recourse for their injuries, since no private right of action exists under FIFRA. Here, the record shows that appellants used the pesticides which allegedly caused their injuries, as directed. Under those facts, we believe that the burden of the cost of serious injury actually caused by pesticides should, as a matter of public policy, be borne by the pesticide manufacturers and distributors rather than the innocent consumers. We emphasize that the issue of causation played no part in the summary judgment motions below, and may be a determinative factor in future proceedings.

We affirm in part and reverse and remand in part. We conclude that the trial court erred in granting summary judgment as to appellants' cause of actions as to strict liability and breach of implied warranties of fitness and merchantability. However, to the extent that appellants alleged a cause of action in paragraphs 43 and 44 based on failure to warn, that cause of action is stricken.

CONTENTIONS

Appellants contend that the trial court erred in granting summary judgment on the basis that their claims for strict liability and breach of implied warranty were preempted by FIFRA, because those causes of action fall outside FIFRA preemption, which is limited to labeling and packaging.

Respondents variously contend that: (1) the strict liability cause of action is expressly preempted; (2) the consumer expectations test under a theory of strict liability is inapplicable; (3) the strict liability cause of action is impliedly preempted; (4) the breach of implied warranty of merchantability cause of action is expressly preempted; and (5) the breach of implied warranty of merchantability cause of action fails due to the lack of privity between appellants and respondents.

FACTS AND PROCEDURAL BACKGROUND

Appellants claim that Alexa suffered an intrauterine stroke, which resulted in hemiparesis (paralysis affecting one side of the body), hemianopsia (blindness affecting half of the field of vision) and disability as a result of pesticides sprayed in and scattered around her home when she was in utero. Appellants also claim that Ashley suffered pancreatitis and hepatitis as a result of exposure to the same pesticides.

The Second Amended Complaint

On June 2, 1999, appellants filed a second amended complaint (SAC) against respondents¹ alleging causes of action for: (1) strict liability-design defect and (2) breach of implied warranties. As to the cause of action for strict liability-design defect, appellants alleged that the injuries sustained by them were caused by their exposure to the pesticides Dursban, Mr. Scott's Do-It-Yourself Pest Control, Dragnet and Baygon. Appellants alleged that on January 31, 1997, Don's Dropdead Pest Control was hired by the Arnolds' landlord to eliminate ant infestations in and around the home in which Michelle, her husband Chad, and their one and one-half year old daughter Ashley were residing. Michelle was pregnant with Alexa at that time. Don's Dropdead Pest Control applied a pesticide product containing Dursban and Baygon, in and around the Arnold residence. On July 9, 1997, Don's Dropdead Pest Control made another visit and applied Dursban and Dragnet to the home. Alexa was born on July 20, 1997. On December 13, 1997, Chad purchased and used a product inside the home called Mr. Scott's Do-It-Yourself Pest Control from Lumber City. Appellants alleged that "Said products were defective in their design, because they failed to perform as safely as an ordinary user would expect when used in their intended or reasonably foreseeable [manner]." The SAC alleged that the products in question contained Dursban which, in turn, contains chlorpyrifos, a pesticide with numerous known adverse toxic effects to humans. Appellants alleged that Dragnet contains the active ingredient permethrin, a pesticide with numerous adverse side effects to humans, and that Baygon, also known as Propoxur, is a pesticide with numerous adverse side effects to humans.

As to the second cause of action for breach of implied warranties, the SAC alleged that by placing the products in the stream of commerce, respondents warranted the products to be reasonably fit for their intended use and that such products were of merchantable quality. The SAC alleged that the respondents "breached said implied warranties, because said products were not fit for their intended use, were not of merchantable quality, and did not function as safely as an ordinary consumer would expect when used as directed, intended or in a reasonably foreseeable manner."

The SAC alleged that respondents knew of the dangers of the chemical products but consciously disregarded appellants' safety despite knowledge of the probable dangerous consequences of exposure to said chemical products, and willfully and deliberately failed to avoid said dangerous consequences befalling appellants.

Deposition Testimony of Michelle Arnold

Michelle testified that in January 1997, Don's Dropdead Pest Control began spraying Dursban on the baseboard of the kitchen floor in her residence while she and Ashley were inside the house. After approximately 15 to 20 minutes, she and Ashley left the residence. When she returned, she noticed an oily residue along the baseboard, on the countertops, and in the cupboards. Upon inquiry, she was told by the exterminator to let the oily residue dry and then wipe it up with soap and water, which she did. During that same visit, the exterminator also scattered Dursban granules through the yard. In July 1997, Don's Dropdead Pest Control applied pesticides to the front yard while Michelle and Ashley remained in the house. Michelle could hear the exterminator on the roof of the house at one point. Later, she found pesticide granules in the yard.

Declaration of Michelle Arnold

Michelle declared that: "At no time when pesticides were applied in and around our home did I expect that they would cause my daughter, Ashley, to suffer pancreatitis and hepatitis, or our daughter, Alexa, to sustain an intrauterine stroke, resulting in hemiparesis, hemianopsia and great disability. Indeed, I do not believe that any parent would reasonably expect that the products designed and intended for home use would cause such injuries to children."

The Summary Judgment Motions

Dow's motion for summary judgment

Dow, the manufacturer of Dursban Pro, All-Pro Dursban 2.5 G, and the chemical chlorpyrifos alleged to have been an active ingredient in Mr. Scott's Do-It-Yourself Pest Control with Time Release Dursban² filed its motion for summary judgment on April 28, 2000, urging that FIFRA expressly and impliedly preempted any state law tort claim that directly or indirectly challenged the sufficiency of the labeling for a registered pesticide approved by the Environmental Protection Agency (EPA). Dow also argued that the implied warranty claims were expressly preempted and that they independently failed because appellants lacked privity of contract with Dow. The trial court denied appellants' request for leave to amend and on June 5, 2000, granted the motion for summary judgment. The trial court did not rule on evidentiary objections filed by Dow to exhibits attached to appellants' counsel's declaration.³

FMC's motion for summary judgment

FMC, the manufacturer of Dragnet, filed its summary judgment motion on May 31, 2000, arguing that FIFRA expressly and impliedly preempted any state law tort claim that directly or indirectly challenged the sufficiency of the EPA-approved labeling for a...