Brennan v. Dow Chemical Co.

• Citation: 613 So.2d 131
• Decision Date: 03 February 1993
• Docket Number: No. 91-2292,91-2292
• Parties: 18 Fla. L. Week. D433 Gregory F. BRENNAN, Appellant, v. DOW CHEMICAL COMPANY, a Michigan corporation; Great Lakes Chemical Corporation, a Delaware corporation; Woodbury Chemical Company, a Florida corporation; Southern Mill Creek Products, Co., Inc., a Florida corporation; Atlantic Fertilizer and Chemical Co., a Florida corporation; Van Waters & Rogers Inc., a Florida corporation; and Crummett Chemical, Inc., a Florida corporation, Appellees.
• Court: Court of Appeal of Florida (US)

Page 131

613 So.2d 131

18 Fla. L. Week. D433

Gregory F. BRENNAN, Appellant, v. DOW CHEMICAL COMPANY, a Michigan corporation; Great Lakes

Chemical Corporation, a Delaware corporation; Woodbury

Chemical Company, a Florida corporation; Southern Mill

Creek Products, Co., Inc., a Florida corporation; Atlantic

Fertilizer and Chemical Co., a Florida corporation; Van

Waters & Rogers Inc., a Florida corporation; and Crummett

Chemical, Inc., a Florida corporation, Appellees.

No. 91-2292.

District Court of Appeal of Florida,

Fourth District.

Feb. 3, 1993.

Michael J. Ferrin of Bailey, Freeman & Ferrin, West Palm Beach, for appellant.

Elena L. Ris and Janis Brustares Keyser of Gay, Ramsey & Lewis, P.A., West Palm Beach, for appellees-Dow Chemical Co. and Van Waters & Rogers, Inc.

Donald H. Benson of Vernis & Bowling, P.A., Fort Lauderdale, for appellee-Woodbury Chemical Co.

John H. Pelzer of Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, and Larry R. Fisher of Stuart and Branigin, Lafayette, IN, for appellee-Great Lakes Chemical Corp.

Robert M. Hustead of Marcus & Marcus, P.A., Homestead, for appellees-Atlantic Fertilizer and Crummet Chemical, Inc.

Daniel J. McGrath of Popham, Haik, Schnobrich & Kaufman, Ltd., Miami for appellee-Southern Mill Creek.

PER CURIAM.

The appellant sued the manufacturers of a chemical product, methyl bromide, for personal injuries, alleging negligence, breach of warranty and strict liability. We reverse the final order dismissing the complaint.

The plaintiff alleged failures or inadequacies with respect to the product and its dissemination as unreasonably dangerous; with respect to inadequacies in the instructions, testing, research, labeling, and warnings; and also as to information or advice given by a separate pamphlet concerning the product and its use.

The motion to dismiss was granted on the grounds that the appellant's claim was preempted by the Federal Insecticide, Fungicide, and Rodenticide Act, hereafter called FIFRA. It is clear that FIFRA regulates labeling of these products. Any separate state regulation of labeling or packaging would be prohibited. The issue here is whether FIFRA preempts all common law tort litigation for injuries caused by the chemical and the conduct of the defendants.

Recently, the United States Supreme Court held that although the Public Health Cigarette Smoking Act (PHCSA) of 1969 preempts state and federal rule-making bodies from mandating warnings on cigarette labels and advertisements, it does not preempt state common law damage actions. Cipollone v. Liggett Group, Inc., --- U.S. ----, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). In Cipollone, --- U.S. at ----, 112 S.Ct. at 2611, the petitioner filed a complaint alleging that the respondents were responsible for the death of his mother since they (1) breached express warranties contained in their advertising, (2) failed to warn consumers about smoking's hazards, (3) fraudulently misrepresented those hazards to consumers, and (4) conspired to deprive the public of information about smoking, in derogation of New Jersey law. Id. --- U.S. at ----, ---- - ----, 112 S.Ct. at 2611, 2613-2614. The Supreme Court held that PHCSA only preempts certain of the failure to warn claims, and did not preempt the claims based on express warranty or conspiracy. --- U.S. at ---- - ----, 112 S.Ct. at 2613-2614.

The Cipollone court narrowly construed PHSCA's language, in light of the general presumption against preemption. Cipollone, --- U.S. at ----, 112 S.Ct. at 2612. There, the "failure to warn" claims asserted that respondents "were negligent in the manner that they tested, researched, sold, promoted, and advertised their cigarettes, and that they failed to provide adequate warnings of smoking's consequences." The plaintiff's claims that additional or more clear warnings should have been given were held...