Burt v. Fumigation Service and Supply, Inc.

Decision Date21 May 1996
Docket NumberNo. 1:95 CV 459.,1:95 CV 459.
Citation926 F. Supp. 624
PartiesCorrine M. BURT; Duane N. Burt; Darleen A. Dronchi; Joseph Dronchi; Joy K. Router; Irma Rodriguez; and Elias Rodriguez, Plaintiffs, v. FUMIGATION SERVICE AND SUPPLY, INC., a foreign corporation, and Great Lakes Chemical Corporation, a foreign corporation, Defendants.
CourtU.S. District Court — Western District of Michigan



John C. Buchanan, Buchanan, Silver & Beckering, Grand Rapids, MI, for Corrine M. Burt, Duane N. Burt, Darleen A. Dronchi, Joseph Dronchi, Joy K. Router, Irma Rodriguez, Elias Rodriguez.

Howard Patrick Morris, Johnson & Bell, Ltd., Chicago, IL, Frederick D. Dilley, Boyden, Waddell, Timmons & Dilley, Grand Rapids, MI, for Fumigation Service and Supply, Inc.

James W. Smith, Dietrich, Zody, Howard & Vander Roest, Kalamazoo, MI, Larry R. Fisher, David A. Starkweather, Stuart & Branigin, Lafayette, IN, for Great Lakes Chemical Corporation.


ENSLEN, Chief Judge.

This matter comes before the Court on defendant Great Lakes Chemical Company's ("Great Lakes'") motion for summary judgment. Great Lakes seeks dismissal of the complaint filed by plaintiffs Corrine M. Burt, Duane N. Burt, Darleen A. Dronchi, Joseph Dronchi, Joy K. Router, Irma Rodriguez and Elias Rodriguez ("plaintiffs") for damages incurred as a result of Fumigation Service and Supply, Inc.'s ("Fumigation's") fumigation of a building using a Great Lakes product containing methyl bromide gas.

Great Lakes is a Delaware corporation with its principle place of business in Indiana. Fumigation is an Indiana corporation with its principle place of business also in Indiana. Plaintiffs are Michigan residents. Although plaintiffs raise no federal claims, the parties are of diverse citizenship and the amount in controversy exceeds $50,000. This Court has jurisdiction pursuant to 28 U.S.C. § 1332(a).


On or about October 4, 1992, Fumigation fumigated a building at the Gerber Products Company in Freemont, Michigan, ("Gerber") using a Great Lakes product called Meth-O-Gas. Meth-O-Gas is the trade name for a 100% methyl bromide pesticide. Methyl bromide is a colorless, odorless, tasteless gas that does not irritate human skin or eyes. It is used to fumigate commodities such as fruits, nuts and grains. The gas dissipates rapidly after use, leaving no residue. The United States Environmental Protection Agency (EPA) classifies methyl bromide as a Restricted Use Pesticide. As a Restricted Use Pesticide, the agent may only be purchased and used by or under the direct supervision of certified applicators. See 40 C.F.R. § 152.175. Inhalation of methyl bromide can be fatal or cause serious acute illness or delayed lung and nervous system injury. Exposure to toxic levels may occur without warning or detection.

Plaintiffs Corrine Burt, Darleen Dronchi, Joy Router and Irma Rodriguez were employees of Gerber working at the time of the fumigation. While answering telephones in a building near the one being fumigated, they became ill and continue to suffer. They, and three spouses, brought the instant suit against Fumigation and Great Lakes claiming that the methyl bromide caused their personal injuries. Plaintiffs assert claims in negligence, breach of warranty and loss of consortium against Great Lakes. The crux of plaintiffs' complaint against Great Lakes is that Meth-O-Gas is defective because it is not safe and fit for foreseeable use and misuse in that, inter alia, the product lacks a "warning agent" to alert anyone to exposure.


In reviewing a motion for summary judgment pursuant to Rule 56, this Court should only consider the narrow questions of whether there are "genuine issues as to any material fact and whether the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). On a Rule 56 motion, the Court cannot resolve issues of fact, but is empowered to determine only whether there are issues in dispute to be decided in a trial on the merits. Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987); In re Atlas Concrete Pipe, Inc., 668 F.2d 905, 908 (6th Cir. 1982). The crux of the motion is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986); Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1310 (6th Cir.1989).


Great Lakes brings this motion on the grounds that: 1) all of plaintiffs' claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136 et seq.; 2) Great Lakes had no duty to warn plaintiffs under the "sophisticated user" doctrine; 3) plaintiffs' design defect theory cannot support a verdict in plaintiffs' favor as a matter of law.


The doctrine of federal pre-emption is founded on the Supremacy Clause, United States Constitution art. VI, cl. 2. Federal laws are the supreme law of the land; thus, any "state law that conflicts with federal law is `without effect.'" See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407, 422 (1992) (citation omitted).

A state law is pre-empted when: 1) Congress expresses a clear intent to preempt state law; 2) when there is outright or actual conflict between the federal and the state law; 3) when compliance with federal and state law is effectively impossible; 4) where there is an implicit federal barrier to state regulation; 5) where Congress has occupied the entire field of regulation; 6) where state law "stands as an obstacle" to the objectives of Congress. Louisiana Public Serv. Comm'n v. Federal Communications Comm'n, 476 U.S. 355, 368-69, 106 S.Ct. 1890, 1898-99, 90 L.Ed.2d 369 (1986) (citations omitted). The key question is whether Congress intended to pre-empt state law. Congressional intent may be express or implied:

Congress' intent may be explicitly stated in the statute's language or implicitly contained in its structure and purpose.... In the absence of an express congressional command, state law is preempted if that law actually conflicts with federal law ..., or of federal law so thoroughly occupies a legislative field "`as to make reasonable the inference that Congress left no room for the States to supplement it.'"

Cipollone, 505 U.S. at 516, 112 S.Ct. at 2617. "Absent express pre-emption, courts are not to infer pre-emption lightly, particularly in areas traditionally of core concern to the states such as tort law." Burke v. Dow Chemical Co., 797 F.Supp. 1128, 1136 (S.D.N.Y.1992) (citing Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 144, 83 S.Ct. 1210, 1218, 10 L.Ed.2d 248 (1963); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). This is because the pre-emption doctrine presumes that police powers historically left to the states are not supplanted by federal law. Cipollone, 505 U.S. at 516, 112 S.Ct. at 2617.

Express Pre-emption: 7 U.S.C. § 136v(b)

Great Lakes contends that FIFRA contains an express pre-emption provision codified at 7 U.S.C. § 136v which precludes consideration of plaintiffs' causes of action. Seven U.S.C. § 136v provides in part:

(a) In general
A state may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.
(b) Uniformity
Such State shall not impose or continue in effect any requirements for labelling or packaging in addition to or different from those required by this subchapter.

In Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 613, 111 S.Ct. 2476, 2485-86, 115 L.Ed.2d 532 (1991), the Supreme Court noted that § 136v was an express pre-emption provision. The provision supported the Court's finding that FIFRA did not pre-empt the entire field of pesticide regulation, for § 136v indicated an intent to pre-empt only some aspects of pesticide regulation. Id. The Court went on to hold that FIFRA does not expressly or impliedly pre-empt local government use permit regulations. The precise scope of § 136v, including whether § 136v pre-empts common law causes of action, was left for the lower courts to resolve.

Since the Supreme Court's opinion in Cipollone, a case dealing with the Public Health Cigarette Smoking Act (PHCSA), 15 U.S.C. § 1331-1340, the majority of decisions interpreting FIFRA hold that § 136v expressly pre-empts some common law causes of action. See, e.g., Reutzel v. Spartan Chemical Co., 903 F.Supp. 1272, 1280 (N.D.Iowa 1995) (citing a litany of cases throughout the federal circuits). In Cipollone, the plaintiff filed a state common law tort action against cigarette manufacturers for failure to warn consumers of the hazards of smoking. The defendant cigarette manufacturers contended that the PHCSA preempted the state law claims. That is, Congress intended even common law claims for damages to be pre-empted.

Section 1334(b) of the PHCSA provides that "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." A plurality of the Supreme Court held that "the phrase no `requirement or prohibition' sweeps broadly and suggests no distinction between positive enactments and common law; to the contrary, those words easily encompass obligations that take the form of common law rules." Cipollone, 505 U.S. at 522, 112 S.Ct. at 2620. Therefore, some of the plaintiff's claims were expressly preempted. The plurality then set forth a test to determine the scope of a statute's pre-emptive effect: "We ask whether the legal duty that is the predicate of the common law damages action constitutes a `requirement or...

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