Davidson v. Velsicol Chemical Corp.

• Decision Date: 12 August 1992
• Docket Number: No. 22464,22464
• Citation: 834 P.2d 931,108 Nev. 591
• Parties: , 61 USLW 2105, Prod.Liab.Rep. (CCH) P 13,306 Ernest DAVIDSON, Darlene Davidson, Individually and as Guardians ad Litem of Sherene Davidson and Ernest Davidson, Jr., their minor children, Appellants, v. VELSICOL CHEMICAL CORPORATION, an Illinois corporation, Respondent.
• Court: Nevada Supreme Court

Page 931

834 P.2d 931

108 Nev. 591, 61 USLW 2105, Prod.Liab.Rep.

(CCH) P 13,306

Ernest DAVIDSON, Darlene Davidson, Individually and as Guardians ad Litem of Sherene Davidson and Ernest Davidson, Jr., their minor children, Appellants, v. VELSICOL CHEMICAL CORPORATION, an Illinois corporation, Respondent.

No. 22464.

Supreme Court of Nevada.

Aug. 12, 1992.

Rehearing Denied Nov. 3, 1992.

Johns & Johns, Las Vegas, for appellants.

Jolley, Urga, Wirth & Woodbury, Las Vegas, and Spriggs & Hollingsworth, Washington, D.C., for respondent.

Crockett & Myers, Las Vegas, Baron & Budd and Charles S. Siegel, Dallas, Tex.,

and Arthur Bryant and Priscilla Budeiri, Washington, D.C., for amicus curiae Trial Lawyers for Public Justice.

[108 Nev. 592] Cory, MacDonald & Van, Las Vegas, for Nat. Pest Control Assn.

OPINION

PER CURIAM:

The main issue presented by this appeal is whether the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et seq. ("FIFRA"), pre-empts state common law actions against the manufacturers of pesticides based on failure to adequately label the pesticides. For the reasons set forth below, we conclude that FIFRA impliedly pre-empts such tort claims.

FACTS

In March of 1986, appellants ("the Davidsons") filed suit against respondent Velsicol Chemical Corporation ("Velsicol"). The Davidsons alleged that in 1979, Bill Beckmeyer's Pest-A-Way ("Pestaway") applied Gold Crest Termide, a termiticide produced by Velsicol, to their partially constructed home. Pestaway sprayed, by a method called "broadcast spraying," the ground in an area intended for the home's crawl space. ¹ By broadcast spraying, toxic chemicals allegedly migrated into the Davidsons' home.

The Davidsons claimed that Velsicol failed to give adequate warning and appropriate instructions concerning the application of its product to the foundation of newly constructed residences, namely, that broadcast spraying was inappropriate. They further claimed that as a result, they were exposed to harmful quantities of chemicals contained in Gold Crest Termide and suffered personal injuries. The Davidsons sought compensatory and punitive damages based on failure to warn, negligence and strict liability.

In 1980, after Pestaway had sprayed the Davidsons' home, Velsicol changed its label to provide a strict prohibition against broadcast spraying areas designated for crawl spaces. The Davidsons moved in limine for a ruling that the post-accident label change on Velsicol's Gold Crest Termide be admissible at trial. Velsicol countered in limine, seeking a ruling that FIFRA pre-empted state tort claims based on a failure to adequately label or warn and that the evidence of subsequent remedial measures was inadmissible.

The district court ruled that FIFRA impliedly pre-empts state common law tort suits against "manufacturers of Environmental Protection Agency ("EPA")-registered pesticides to the extent that such actions are based on claims of inadequate labeling." The district court also ruled that the evidence of the subsequent remedial measures was inadmissible.

DISCUSSION

Under the Supremacy Clause, U.S. Const., Art. VI, cl. 2, state laws which are contrary to, or which interfere with, the laws of Congress are invalid. Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, ----, 111 S.Ct. 2476, 2481, 115 L.Ed.2d 532 (1991) (citing Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824)). "If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted." Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984). This intent may be either expressed in the terms of the statute or implied. Mortier, 501 U.S. at ----, 111 S.Ct. at 2481. Where Congress has expressly provided for pre-emption, resort to the implied pre-emption doctrines is unnecessary; instead, the court need only determine the scope of the pre-emption. Cipollone v. Liggett Group, Inc., 505 U.S. 504, ----, 112 S.Ct. 2608, 2618, 120 L.Ed.2d 407 (1992).

In determining whether state law is pre-empted, courts must presume that the historic police powers of the states are not to be superseded by the Federal Act unless that is the clear and manifest purpose of Congress. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Tort remedies which compensate for personal injuries are traditionally considered properly within the scope of state superintendence. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 144, 83 S.Ct. 1210, 1218, 10 L.Ed.2d 248 (1963). The burden of establishing pre-emption is on the party seeking to give the statute such effect. Silkwood, 464 U.S. at 255, 104 S.Ct. at 625.

The Davidsons argue that FIFRA does not pre-empt its inadequate labeling claims against Velsicol. They cite Ferebee v. Chevron Chemical Co., 736 F.2d 1529, 1539 (D.C.Cir.1984), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1985), wherein the United States Court of Appeals for the District of Columbia held that FIFRA does not pre-empt such tort claims.

Velsicol, in turn, argues that the district court properly found that FIFRA pre-empts the Davidsons' claims. Velsicol relies on Arkansas-Platte & Gulf v. Van Waters & Rogers, 959 F.2d 158 (10th Cir.1992), where the United States Court of Appeals for the Tenth Circuit held that state damage actions based on labeling and failure to warn are impliedly pre-empted by FIFRA. ²

There is a split of authority on this issue. Ferebee and Arkansas-Platte represent the two views, and we therefore confine our discussion to these cases. ³

I. Congress did not expressly pre-empt state tort claims.

Velsicol argues that FIFRA expressly pre-empts state tort claims which are based on failure to adequately label. FIFRA provides:

(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 [FIFRA]. (b) Uniformity

Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under [FIFRA].

7 U.S.C. § 136v(a)-(b). Based on this language, several courts have held that FIFRA expressly pre-empts state action regarding pesticide labeling. See, e.g., Fitzgerald v. Mallinckrodt, Inc., 681 F.Supp. 404, 406 (E.D.Mich.1987); and Kennan v. Dow Chemical Co., 717 F.Supp. 799, 807 (M.D.Fla.1989) (pre-emption based on the express language and legislative history).

However, the majority of courts hold that FIFRA does not expressly pre-empt state action of pesticide labeling. See, e.g., Ferebee, 736 F.2d at 1542; Montana Pole & Treating Plant v. I.F. Laucks, 775 F.Supp. 1339, 1343 (D.Mont.1991); Riden v. ICI Americas, Inc., 763 F.Supp. 1500, 1505 (W.D.Mo.1991); Hurt v. Dow Chemical Co., 759 F.Supp. 556, 558-59 (E.D.Mo.1990); Fisher v. Chevron Chemical Co, 716 F.Supp. 1283, 1286-87 (W.D.Mo.1989).

We conclude that the majority's position is more persuasive. Although FIFRA provides that states shall not "impose or continue in effect" labeling requirements which differ from FIFRA, section 136v(b) makes no reference to the pre-emption of state common law remedies. Because Congress has expressly pre-empted common law in other pre-emption clauses, Congress' silence cannot be ignored--it is inimical to a finding of express pre-emption. Riden, 763 F.Supp. at 1505-06. Indeed, as stated by the New Jersey Supreme Court, courts should not strain to find pre-emption of state law:

[O]ur federal system, with its high regard for the several States' powers of governance requires that judges not preempt state law lightly.... [W]hen the Supreme Court considers whether the Congress has preempted state law, "[a]ny indulgence in construction should be in favor of the States, because Congress can speak with drastic clarity whenever it chooses to assure full federal authority."

Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 577 A.2d 1239, 1251 (1990) (quoting in part Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 780, 67 S.Ct. 1026, 1033, 91 L.Ed. 1234 (1947)). ⁴ Therefore, we hold that FIFRA does not expressly pre-empt state tort actions against pesticide manufacturers based on failure to adequately warn or label.

II. Congress implicitly intended to pre-empt state tort claims.

The next question is whether Congress implicitly intended to pre-empt state tort claims. Mortier, 501 U.S. at ----, 111 S.Ct. at 2481. Congress' intent may be implied if Congress occupies an entire field or if there is an actual conflict between state and federal law. Arkansas-Platte, 959 F.2d at 161.

A. Congress occupies the entire field of pesticide labeling.

Congress occupies an entire field if: (1) the federal regulation is so pervasive such that Congress left no room for the states to supplement it; (2) the federal act involves a field in which the federal interest completely dominates the field; or (3) if the goals sought or the obligations imposed by the federal law reveal a purpose to preclude state authority. Mortier, 501 U.S. at ---- - ----, 111 S.Ct. at 2481-82.

The Ferebee court recognized that FIFRA does not allow states to directly impose additional labeling requirements. Ferebee, 736 F.2d at 1541. The court, however, reasoned that state action which has the effect of changing federal labeling requirements is permissible because it falls within the states' power to regulate the "sale or use" of pesticides authorized in § 136v(a). Id.

In contrast, the Arkansas-Platte court held that FIFRA impliedly pre-empted state tort actions, reasoning that the federal government occupies the entire field of regulating labels. Arkansas-Platte, 959 F.2d at 164. Our review of the legislative history and the federal regulations supports a ruling that Congress occupies the entire field of pesticide labeling regulation.

In 1947, Cong...