Casper v. EI Du Pont De Nemours and Co.

• Decision Date: 02 November 1992
• Docket Number: No. CS-91-319-FVS.,CS-91-319-FVS.
• Citation: 806 F. Supp. 903
• Parties: Brad CASPER and Sannette Casper, husband and wife, Plaintiffs, v. E.I. DU PONT DE NEMOURS AND CO., a foreign corporation, and PureGro Company, a foreign corporation, Defendants.
• Court: U.S. District Court — District of Washington

806 F. Supp. 903

Brad CASPER and Sannette Casper, husband and wife, Plaintiffs, v. E.I. DU PONT DE NEMOURS AND CO., a foreign corporation, and PureGro Company, a foreign corporation, Defendants.

No. CS-91-319-FVS.

United States District Court, E.D. Washington.

November 2, 1992.

Brian J. Iller, Raekes Rettig Osborne Forgette & O'Donnell, Kennewick, Wash., for plaintiffs.

Andrew C. Bohrnsen, Lukins & Annis, Spokane, Wash., for E.I. Du Pont De Nemours & Co.

Lucinda S. Whaley, Winston & Cashatt, Spokane, Wash., for Puregro Co.

ORDER RE MOTIONS TO DISMISS

VAN SICKLE, District Judge.

THIS MATTER came before the Court on October 21, 1992, for argument of separate motions to dismiss brought by defendants Du Pont and Puregro. This order is intended to memorialize the Court's prior rulings.

Defendant Du Pont is represented by Andrew C. Bohrnsen and Jerry J. Moberg; defendant Puregro is represented by Lucinda S. Whaley and Mary Ellen Gaffney-Brown. The plaintiffs are represented by Brian J. Iller.

For the reasons set forth below, Du Pont's motion is granted, and Puregro's motion is denied with respect to those claims which allege breach of either an express warranty or an implied warranty of fitness for a particular purpose.

I.

Du Pont manufactures a herbicide known as "Velpar." (Defendant PureGro's LR 56 Statement of Material Facts (Ct.Rec. 18), at 2.) During December of 1990, PureGro employees applied Velpar to the plaintiffs' alfalfa fields. Id. By March of 1991, other alfalfa fields in the area had begun to turn green. However, those of the plaintiffs' fields which had been treated with Velpar in December were still brown. Upon closer examination, plaintiff Brad Casper discovered that alfalfa plants in the treated fields had sustained serious injury. (Affidavit of Brian J. Iller in Opposition (Ct.Rec. 25), Exhibit 1 at 111 (Casper Deposition).)

The plaintiffs filed suit against both Du Pont and PureGro in Franklin County (Washington) Superior Court. The action was removed to federal court based upon diversity of citizenship. 28 U.S.C. § 1332(a). Neither jurisdiction nor venue are disputed.

II.

Du Pont moves to dismiss those of the plaintiffs' claims which allege failure to warn and inadequate labeling, arguing that state tort claims which are based upon such theories are preempted by the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136-136y (1991). (Defendant Du Pont's Motion to Dismiss (Ct.Rec. 12).)

A.

The Supremacy Clause provides "that the laws of the United States `shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.'" U.S. Const. Art. VI, cl. 2. See Cipollone v. Liggett Group, Inc., ___ U.S. ___, ___, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992). As a result, "state laws that `interfere with, or are contrary to the laws of congress, made in pursuance of the constitution' are invalid." Wisconsin Public Intervenor v. Mortier, ___ U.S. ___, ___, 111 S.Ct. 2476, 2481, 115 L.Ed.2d 532 (1991) (quoting Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824)).

However, in considering issues arising under the Supremacy Clause, it is presumed that "`the historic police powers of the States are not to be superseded by ... Federal Act unless that is the clear and manifest purpose of Congress.'" Cipollone, ___ U.S. at ___, 112 S.Ct. at 2617 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). Thus, the question of preemption necessarily turns upon congressional intent. Mortier, ___ U.S. at ___, 111 S.Ct. at 2481.

There are three circumstances in which state law is preempted under the Supremacy Clause. English v. General Elec. Co., 496 U.S. 72, 78-80, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65 (1990). In the first instance, a federal statute may contain a provision which explicitly supplants state authority. Mortier, ___ U.S. at ___, 111 S.Ct. at 2481. Absent such language, state law may be preempted when it "regulates conduct in a field that Congress intended the Federal Government to occupy exclusively." English, 496 U.S. at 79, 110 S.Ct. at 2275. Finally, preemption "may occur to the extent that state and federal law actually conflict." Mortier, ___ U.S. at ___, 111 S.Ct. at 2482.

B.

Congress enacted FIFRA in 1947. In its original form, FIFRA served primarily as a licensing and labeling statute. Mortier, ___ U.S. at ___, 111 S.Ct. at 2479 (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991, 104 S.Ct. 2862, 2866, 81 L.Ed.2d 815 (1984)). However, as a result of amendments passed in 1972, it was transformed into a comprehensive regulatory statute governing the use, sale, and labeling of pesticides. Mortier, ___ U.S. at ___, 111 S.Ct. at 2479-80.

Notwithstanding FIFRA's comprehensive nature, neither its text nor the scope of its regulatory scheme evidence an intent to exclude all state regulation of pesticides. Mortier, ___ U.S. at ___, 111 S.Ct. at 2486. To the contrary, FIFRA provides that:

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.

7 U.S.C. § 136v(a) (1991).

It is important to note that § 136v(a) does not "serve to hand back to the States powers that the statute had impliedly usurped. Rather, it acts to ensure that the States can continue to regulate use and sales even where, such as with regard to the banning of mislabeled products, a narrow preemptive overlap might occur." Mortier, ___ U.S. at ___, 111 S.Ct. at 2486.

Even though a state may participate in the regulatory process, its authority is subject to an important qualification. In the event a state chooses to promulgate pesticide regulations:

Such state shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.

7 U.S.C. § 136v(b) (1991).

That limitation reflects the fact that, historically, FIFRA has focused on the labeling of pesticides. Mortier, ___ U.S. at ___, 111 S.Ct. at 2486 (citing Monsanto, 467 U.S. at 991, 104 S.Ct. at 2867). The 1972 amendments were enacted "to strengthen existing labeling requirements and to insure that these requirements were followed in practice." ___ U.S. at ___, 111 S.Ct. at 2486 (citations omitted).

C.

To resolve Du Pont's motion, the Court must first decide whether § 136v(b) explicitly preempts those state tort claims which allege failure to warn and inadequate labeling. In that regard, Cipollone v. Liggett Group, Inc., supra, is instructive.

In 1983, Rose Cipollone and her husband sued certain cigarette companies alleging that Mrs. Cipollone had developed lung cancer from smoking cigarettes manufactured and sold by the defendant companies. ___ U.S. at ___ - ___, 112 S.Ct. at 2613-14. The cigarette manufacturers argued "that the Federal Cigarette Labeling and Advertising Act, enacted in 1965, and its successor, the Public Health Cigarette Smoking Act of 1969, protected them from any liability based on their conduct after 1965." ___ U.S. at ___, 112 S.Ct. at 2614.

The Supreme Court first considered the scope of the 1965 Act, and ruled that it did not preempt "state law damages actions." ___ U.S. at ___, 112 S.Ct. at 2619. It then turned to § 5(b) of the 1969 Act, which provides:

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.

Cipollone, ___ U.S. at ___, 112 S.Ct. at 2617.

With respect to that provision, the Cipollone plaintiffs argued that § 5(b) does not pre-empt common law actions because such actions "do not impose `requirements or prohibitions.'" ___ U.S. at ___, 112 S.Ct. at 2620. The Supreme Court disagreed. It said, "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." ___ U.S. at ___, 112 S.Ct. at 2620.

In reaching that conclusion, the Supreme Court recognized that "common law damages actions of the sort raised by the Cipollone plaintiffs are premised on the existence of a legal duty...." ___ U.S. at ___, 112 S.Ct. at 2620. That being the case, the Court found it "difficult to say that such actions do not impose `requirements or prohibitions.'" ___ U.S. at ___, 112 S.Ct. at 2620 (citation omitted).

Like § 5(b), 7 U.S.C. § 136v(b) forbids imposition of "any requirements for labeling or packaging in addition to or different from those required under FIFRA." (Emphasis added.) Since "it is the essence of the common law to enforce duties that are either affirmative requirements or negative prohibitions," ___ U.S. at ___, 112 S.Ct. at 2620 (emphasis in original), § 136v(b) necessarily comprehends common law duties arising under state law.¹

Not all common law claims are preempted, however. Section 136v(b) must be construed narrowly, keeping in mind the strong presumption against preemption. See Cipollone, ___ U.S. at ___, 112 S.Ct. at 2621. Thus, the "central inquiry" is whether "the legal duty that is the predicate of the common law damages action," see ___ U.S. at ___, 112 S.Ct. at 2621, constitutes a requirement for labeling or packaging which is either "in addition to" or "different from" those required by FIFRA.

D.

Before a pesticide may be sold or used, it must be registered with the Environmental Protection Agency ("EPA"). 7 U.S.C. § 136a(a) (1991). See Chemical Specialties Manufacturers Assoc., Inc. v. Allenby, 958 F.2d 941, 944 (9th Cir.1992). With certain exceptions, a pesticide may not be sold "unless the EPA first determines that the product's labeling contains warnings and directions for use that are `adequate to protect...