DerGazarian v. Dow Chemical Co., Civ. No. 93-5004.

CourtU.S. District Court — Western District of Arkansas
Citation836 F. Supp. 1429
Decision Date25 October 1993
PartiesJohn DerGAZARIAN and Terri L. DerGazarian, Plaintiffs, v. The DOW CHEMICAL COMPANY, Defendant.
Docket NumberCiv. No. 93-5004.

836 F. Supp. 1429

John DerGAZARIAN and Terri L. DerGazarian, Plaintiffs,
v.
The DOW CHEMICAL COMPANY, Defendant.

Civ. No. 93-5004.

United States District Court, W.D. Arkansas, Fayetteville Division.

October 25, 1993.


Nicholas H. Patton, Young, Patton & Folsom, Texarkana, James G. Lingle, Lingle & Corley, Rogers, for plaintiffs.

Tilden P. Wright, III, Davis, Cox & Wright, Fayetteville, for defendant.

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

On this 22nd day of October, 1993, comes now before the court for consideration defendant Dow Chemical Company's motion for partial summary judgment. Also before the court is plaintiffs' response to said motion. The court has considered the pleadings and is now ready to rule. For the reasons set forth below, the court finds that the motion for partial summary judgment should be and hereby is granted in part and denied in part.

1. Statement of the Case

In a second amended complaint filed on February 4, 1993, plaintiffs alleged that the defendant manufactured an insecticide, Dursban 2E, which was applied, in a mixture of chemicals, to plaintiffs' residence on February 15, 1990, pursuant to a pest control agreement. Plaintiffs contend that the insecticide was in a defective and unreasonably

836 F. Supp. 1430
dangerous condition when applied to the plaintiffs' residence and that Dursban 2E was the proximate cause of injuries to the plaintiffs. Plaintiffs further contend that the defendant was negligent by failing to use ordinary care in the manufacture of the insecticide, in the selection of materials used in the insecticide, and in the formulation, inspection and testing of this insecticide. Plaintiffs similarly contend that defendant was negligent in failing to warn of the dangers in the use of the insecticide and in failing to properly label the insecticide

2. Motion for Partial Summary Judgment

Defendant has filed a motion for partial summary judgment asserting that several of plaintiffs' claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), codified at 7 U.S.C. § 136 et seq. Specifically, defendant contends that § 136v(b) expressly preempts common law actions premised upon an insecticide manufacturer's failure to warn or to properly label an insecticide. Defendant further contends that this section, together with the legislative history of the relevant portions of FIFRA, impliedly preempts these two types of common law tort actions. In support, defendant points to FIFRA regulations regarding labelling and packaging, promulgated in order to ensure uniformity, and argues that common law tort actions based upon inadequate labeling and warning would destroy the uniformity Congress sought to legislate, resulting in conflicting federal and state laws in violation of the Supremacy Clause. Additionally, defendant asserts that its labeling, formulation and testing of Dursban 2E was at all time in compliance with FIFRA requirements and approved by the EPA. Thus, defendant contends that plaintiff's claims with respect to defendant's failure to warn of the danger of the insecticide, failure to properly label the insecticide and failure to use ordinary care in the formulation, inspection and testing of Dursban 2E are preempted by provisions of FIFRA. Plaintiff's response to the summary judgment motion contends that FIFRA does not preempt any of plaintiff's claims.

3. Standard of Review

Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided on purely legal grounds. Holloway v. Lockhart, 813 F.2d 874 (8th Cir.1987); Fed.R.Civ.P. 56. The Supreme Court has issued the following guidelines for trial courts to determine whether this standard has been satisfied.

The inquiry performed is the threshold inquiry of determining whether there is a need for trial — whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). See also Agristor Leasing v. Farrow, 826 F.2d 732 (8th Cir.1987); Niagara of Wisconsin Paper Corp. v. Paper Industry Union — Management Pension Fund, 800 F.2d 742, 746 (8th Cir.1986).

The Eighth Circuit Court of Appeals has advised trial courts that summary judgments should be cautiously invoked so that no person will be improperly deprived of a trial of disputed factual issues. Inland Oil & Transport Co. v. United States, 600 F.2d 725 (8th Cir.1979), cert. denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979). The Court has recently reviewed the burdens of the respective parties in connection with a summary judgment motion. In Counts v. M.K. Ferguson Co., 862 F.2d 1338 (8th Cir.1988), the court stated:

The burden on the party moving for summary judgment is only to demonstrate, i.e., `to point out to the District Court,' that the record does not disclose a genuine dispute on a material fact. It is enough for the movant to bring up the fact that the record does not contain such an issue and to identify that part of the record which bears out his assertion. Once this is done, his burden is discharged, and, if the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent's burden to set forth affirmative evidence, specific facts, showing that there is a genuine dispute on that issue. If the respondent fails
836 F. Supp. 1431
to carry that burden, summary judgment should be granted.

Id. at 1339, quoting Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-74 (8th Cir.1988) (citations omitted) (brackets in original). However, the Court of Appeals for this circuit has also held that the court, in ruling on the motion for summary judgment, must give the non-moving party "the benefit of the reasonable inferences that can be drawn from the underlying facts." Fischer v. NWA, Inc., 883 F.2d 594, 598 (8th Cir. 1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2205, 109 L.Ed.2d 531 (1990) (citing Trnka v. Elanco Products Co., 709 F.2d 1223 (8th Cir.1983).

4. The Preemption Doctrine

Defendant contends that FIFRA preempts certain of the plaintiffs' state law claims. The preemption doctrine is based upon the Supremacy clause of Article Six of the Constitution. U.S. Const. art. VI, cl. 2. The Supremacy Clause invalidates state laws that "interfere with, or are contrary to" federal law. Hillsborough County, Fla. v. Automated Medical Labs., Inc., 471 U.S. 707, 712, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985), citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824) (Marshall, C.J.). The different forms of preemption may be found in the familiar Supreme Court opinion of Louisiana Public Service Comm'n v. Federal Communications Comm'n, 476 U.S. 355, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986):

The Supremacy Clause of Article VI of the Constitution provides Congress with the power to pre-empt state law. Pre-emption occurs when Congress, in enacting a federal statute, expresses a clear intent to preempt state law, Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977), when there is outright or actual conflict between federal and state law, e.g. Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962), where compliance with both federal and state law is in effect physically impossible, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), where there is implicit in federal law a barrier to state regulation, Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983), where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law, Rice v. Sante Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947), or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress. Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941).
* * * * * *
The critical question in any pre-emption analysis is always whether Congress intended that federal regulation supersede state law.

476 U.S. 355, 368-69, 106 S.Ct. 1890, 1898-99, 90 L.Ed.2d 369, 381-82 (1986).

5. Federal Insecticide, Fungicide, and Rodenticide Act

Any preemption analysis must originate with the source of the alleged preemption. FIFRA was enacted in 1947 to replace the government's first effort at pesticide regulation, the Insecticide Act of 1910. Wisconsin Public Intervenor v. Mortier, ___ U.S. ___, ___, 111 S.Ct. 2476, 2479, 115 L.Ed.2d 532 (1991). Like its predecessor, FIFRA as originally adopted "was primarily a licensing and labeling statute," Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991, 104 S.Ct. 2862, 2866, 81 L.Ed.2d 815 (1984), "designed to work in harmony with the uniform state insecticide, fungicide and rodenticide act which was adopted in many States." S.Rep. No. 92-838, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.Code Cong. & Admin.News 3993, 3999.

In 1972, environmental and safety concerns led Congress to undertake a comprehensive revision of FIFRA through the Federal Environmental Pesticide Control Act. These amendments significantly strengthened FIFRA's registration and labeling standards for pesticides and increased the EPA's authority for enforcement. See Ruckelshaus, supra; 7 U.S.C. § 136a.

FIFRA's legislative history indicates that Congress intended to establish a comprehensive regulatory scheme in which the EPA

836 F. Supp. 1432
Administrator would be responsible for determining whether to register a pesticide, and if so, under what circumstances. Congress recognized that the control of pesticides required a careful balancing of benefit against risk
While appropriate pesticides properly used are essential to man and his environment, many constitute
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15 practice notes
  • Higgins v. Monsanto Co., 92-CV-158.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • September 26, 1994
    ...(emphasis added); Williams v. State of Louisiana, 640 So.2d 365, 367 (La. App. 1st Cir.1994); see also DerGazarian v. Dow Chem., 836 F.Supp. 1429, 1447 (W.D.Ark.1993) (FIFRA does not preempt claims for failure to use ordinary care in formulation, inspection, and testing); Wright v. Dow Chem......
  • Romah v. Hygienic Sanitation Co.
    • United States
    • Superior Court of Pennsylvania
    • January 26, 1998
    ...(emphasis added); Williams v. State of Louisiana, 640 So.2d 365, 367 (La.App. 1st Cir.1994); see also DerGazarian v. Dow Chem., 836 F.Supp. 1429, 1447 (W.D.Ark.1993) (FIFRA does not preempt claims for failure to use ordinary care in formulation, inspection, and testing); Wright v. Dow Chem.......
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    • United States
    • California Court of Appeals
    • February 21, 1995
    ...845 F.Supp. 503; Trinity Mountain Seed Co. v. MSD Agvet (D.Idaho 1994) 844 F.Supp. 597; DerGazarian v. Dow Chemical Co. (W.D.Ark.1993) 836 F.Supp. 1429; Levesque v. Miles Inc. (D.N.H.1993) 816 F.Supp. 61; see also Stamps v. Collagen Corp. (5th Cir.1993) 984 F.2d 1416, 1420-1421 [under Cipol......
  • Kenepp v. American Edwards Laboratories, Civ. A. No. 92-3810
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 1, 1994
    ...Cyanamid Co., 840 F.Supp. 694 (D.Minn.1993); Kinser v. CibaGeigy Corp., 837 F.Supp. 217 (W.D.Ky.1993); DerGazarian v. Dow Chem. Co., 836 F.Supp. 1429 This court agrees with the foregoing authority and finds particularly persuasive Judge Cummings' reasoning for the Seventh Circuit Court of A......
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15 cases
  • Louisiana-Pacific Corp. v. Koppers Co., LOUISIANA-PACIFIC
    • United States
    • California Court of Appeals
    • February 21, 1995
    ...845 F.Supp. 503; Trinity Mountain Seed Co. v. MSD Agvet (D.Idaho 1994) 844 F.Supp. 597; DerGazarian v. Dow Chemical Co. (W.D.Ark.1993) 836 F.Supp. 1429; Levesque v. Miles Inc. (D.N.H.1993) 816 F.Supp. 61; see also Stamps v. Collagen Corp. (5th Cir.1993) 984 F.2d 1416, 1420-1421 [under Cipol......
  • Higgins v. Monsanto Co., No. 92-CV-158.
    • United States
    • U.S. District Court — Northern District of New York
    • September 26, 1994
    ...(emphasis added); Williams v. State of Louisiana, 640 So.2d 365, 367 (La. App. 1st Cir.1994); see also DerGazarian v. Dow Chem., 836 F.Supp. 1429, 1447 (W.D.Ark.1993) (FIFRA does not preempt claims for failure to use ordinary care in formulation, inspection, and testing); Wright v. Dow Chem......
  • Romah v. Hygienic Sanitation Co.
    • United States
    • Superior Court of Pennsylvania
    • January 26, 1998
    ...(emphasis added); Williams v. State of Louisiana, 640 So.2d 365, 367 (La.App. 1st Cir.1994); see also DerGazarian v. Dow Chem., 836 F.Supp. 1429, 1447 (W.D.Ark.1993) (FIFRA does not preempt claims for failure to use ordinary care in formulation, inspection, and testing); Wright v. Dow Chem.......
  • Kenepp v. American Edwards Laboratories, Civ. A. No. 92-3810
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 1, 1994
    ...Cyanamid Co., 840 F.Supp. 694 (D.Minn.1993); Kinser v. CibaGeigy Corp., 837 F.Supp. 217 (W.D.Ky.1993); DerGazarian v. Dow Chem. Co., 836 F.Supp. 1429 This court agrees with the foregoing authority and finds particularly persuasive Judge Cummings' reasoning for the Seventh Circuit Court of A......
  • Request a trial to view additional results

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