Etcheverry v. Tri-Ag Service, Inc.

• Court: California Court of Appeals
• Writing for the Court: BLEASE; Bayer argued that FIFRA preempts all of Etcheverry's potential causes of action because they are predicated upon a breach of a duty to warn and the recognition of such a duty is barred by FIFRA. The trial court; Thereafter defendants Tri-Ag a
• Citation: Etcheverry v. Tri-Ag Service, Inc., 76 Cal.Rptr.2d 466, 65 Cal.App.4th 467 (Cal. App. 1998)
• Decision Date: 08 July 1998
• Docket Number: TRI-AG,No. C024045,C024045
• Parties: Previously published at 65 Cal.App.4th 467 65 Cal.App.4th 467, Prod.Liab.Rep. (CCH) P 15,277, 98 Cal. Daily Op. Serv. 5403, 98 Daily Journal D.A.R. 7517 Monique ETCHEVERRY et al., Plaintiffs and Appellants, v.SERVICE, INC. et al., Defendants and Respondents.

Page 466

76 Cal.Rptr.2d 466

Previously published at 65 Cal.App.4th 467

65 Cal.App.4th 467, Prod.Liab.Rep. (CCH) P 15,277,

98 Cal. Daily Op. Serv. 5403,

98 Daily Journal D.A.R. 7517

Monique ETCHEVERRY et al., Plaintiffs and Appellants, v. TRI-AG SERVICE, INC. et al., Defendants and Respondents.

No. C024045.

Court of Appeal, Third District, California.

July 8, 1998.

Review Granted Sept. 16, 1998.

Mehlhaff & Hay, Souza, Coats, McInnis, Mehlhaff & Hay, Robert Mehlhaff, Tracy, for Plaintiffs and Appellants.

Borton, Petrini & Conron, Bradley A. Post, Samuel L. Phillips, Modesto, for Defendants and Respondents Tri-Ag Service, Inc., et al.

James W. Rushford, Rushford & Bonotto, Sacramento, Holtzman & Urquhart, James L. Moore, Jack E. Urquhart, John W. Ghezzi, Houston Tx., Thompson, Meade, Nielsen & Rushford, Holtzman, Urquhart & Moore, for Defendant and Respondent Miles, Inc.

BLEASE, Acting Presiding Justice.

Plaintiffs (Etcheverry) appeal from defense summary judgments in an action for damages to walnut orchards allegedly caused by the application of pesticides. The pesticides were manufactured by defendant Bayer Corporation (Bayer) and sold to Etcheverry by defendant Tri-Ag Service, Inc. (Tri-Ag). Etcheverry alleged that their walnut crop was damaged by the combined application of two pesticides, each of which is subject to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

Etcheverry's complaint tenders causes of action for misrepresentation, breach of warranty, and manufacturer's liability. The lattermost claim alleges that the pesticides are unsafe without a warning of the damage that can result from the combined application.

The defendants obtained a summary judgment on the ground all of the claims are preempted by FIFRA. We will conclude that FIFRA does not preempt the failure to warn claims and we will reverse the judgment.

FACTS AND PROCEDURAL BACKGROUND

The complaint contains the following essential allegations. Bayer manufactured Guthion and Morestan. Paul Osterlie, a pest control advisor licensed under California law, worked for Tri-Ag. In June 1993 Osterlie recommended the combined application of Guthion and Morestan at three pounds each per treated acre, along with other substances, and water delivered in an aggregate of 125 gallons of material per acre. Etcheverry followed Osterlie's recommendations and applied the combination to three orchards, resulting in approximately $150,000 damage to the walnut crop.

Bayer moved for summary judgment. In the ensuing proceedings Bayer adduced Etcheverry's answers to contention interrogatories which established the following essential theories of the causes of action.

The active ingredient in Guthion and in Morestan is not very soluble in water. Each of the pesticides uses "surfactant" or adjuvant chemicals to "wet" the active ingredient so that it can be dispensed through a water spray. A sufficient concentration of the surfactant chemicals can solubilize or dissolve waxes on the surface of plant tissue causing damage to the plants (phytotoxicity).

Osterlie's specific recommendation of the application level came from Bayer. Bayer knew or should have known, based on numerous identified technical articles concerning the effect of surfactants on leaf surface waxes, that the combination of surfactants in Guthion and Morestan in a water solution was dangerous as potentially phytotoxic. Bayer recommended a level of application of the pesticides which was dangerous and failed to warn of the danger. Bayer failed to test Guthion, alone or in combination with Morestan, at the level at which it was applied to the Etcheverry orchards.

In opposition to Bayer's motion Etcheverry adduced evidence that Bayer conducted two studies in 1965 of the combined use of Morestan and Guthion. Etcheverry also adduced the declaration of counsel that Bayer had produced no other documents in response to a discovery request inquiring about the existence of tests, experiments, or trials of the combination of Morestan and Guthion. The first study by Bayer concerned combined use on apples during the early post-bloom period. The study concluded that Morestan should not be used on apples during this period at rates above eight ounces per 100 gallons and it should not be combined with Guthion if phytotoxicity is to be avoided. The second study concerned use on apples during mid-summer. It reached similar conclusions.

Etcheverry also adduced labels, bulletins, and advertising brochures for Morestan and Guthion.

A Morestan label contains the following information of interest. Application to walnuts to kill aphids and mites is a recommended use. The amount recommended for Morestan is one to one and a half pounds per hundred gallons of water as a full coverage spray. Under a section entitled "Restrictions" the following warning is provided.

"Under certain adverse weather conditions, particularly those that create slow drying of spray deposits, injury may occur to foliage of strawberries and deciduous fruit trees having new and/or tender growth."

This restriction pertains to a risk of phytoxicity from dissolution of the surface layers of plant tissue on new or tender growth.

The Guthion label contains the following information of interest. Application to walnuts to kill Codling moth and other insects is a recommended use. The amount recommended is three to four pounds of Guthion per acre as a full coverage spray.

Etcheverry also adduced excerpts of Osterlie's deposition testimony. Osterlie averred that he was told by Bayer representatives to advise combined use of Guthion and Morestan, with three pounds of Morestan per acre, in 100 or 125 gallons of water. The Bayer representatives told him that the only problem with the mix was that "you would get some yellowing of the leaves."

Bayer argued that FIFRA preempts all of Etcheverry's potential causes of action because they are predicated upon a breach of a duty to warn and the recognition of such a duty is barred by FIFRA. The trial court, Judge Grande presiding, granted the motion for summary judgment except with respect to the sixth count of the complaint for misrepresentation.

Thereafter defendants Tri-Ag and Osterlie moved for summary judgment on FIFRA preemption grounds, asking the court to judicially notice the showing made by Bayer. In addition, Tri-Ag and Osterlie adduced Etcheverry's admission, in response to an interrogatory, that Osterlie did not know of the phytotoxic effects of combining Morestan and Guthion when he made the recommendation in issue. In some manner not disclosed by the record, the motion was set to be heard before another department of the superior court, Judge McNatt presiding.

Bayer "joined" in the summary judgment motion of Tri-Ag and Osterlie. Bayer adduced Etcheverry's further answers to interrogatories. Etcheverry asserted in those answers that the nature of Bayer's purported false representations was the failure to disclose the facts known exclusively to it that a combination of Morestan and Guthion alone or with other surfactants or adjuvants were phytotoxic. When asked what writings contained such false representations Etcheverry responded that there were none, but that the two test reports were examples of writings demonstrating that Bayer had exclusive knowledge of material facts which it failed to disclose. Bayer argued that these responses demonstrated that Etcheverry had no substantial evidence to support a theory of intentional misrepresentation, the sole basis of its evasion of the preemption bar in the earlier summary judgment proceedings.

Etcheverry opposed the combined motions for summary judgment. The matter came on for hearing before Judge McNatt, he granted the motions for summary judgment. Etcheverry appeals from the ensuing summary judgments.

DISCUSSION

I

The claim that FIFRA preempts state law causes of action is grounded on subdivision (b) of 7 United States Code section 136v ¹ (hereafter section 136v). It provides:

"(b) [A] 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."

The argument for preemption, simply put, is that subdivision (b) precludes a state law action predicated on a failure to warn because liability for failure to warn is a requirement for labeling in addition to or different from that required by FIFRA. The central flaw in the argument, simply put, is that liability under state law for failure to warn, e.g., under a strict liability theory for harm caused by an unsafe product, is not a requirement for labeling or packaging different from that required under FIFRA.

We conclude, contrary to numerous earlier opinions (e.g., Louisiana-Pacific Corp. v. Koppers Co. (1995) 32 Cal.App.4th 599, 38 Cal.Rptr.2d 257; Taylor AG Industries v. Pure-Gro (9th Cir.1995) 54 F.3d 555; MacDonald v. Monsanto Co. (5th Cir.1994) 27 F.3d 1021; Worm v. American Cyanamid Co. (4th Cir.1993) 5 F.3d 744; King v. E.I. DuPont de Nemours and Co. (1st Cir.1993) 996 F.2d 1346; Shaw v. Dow Brands, Inc. (7th Cir.1993) 994 F.2d 364; Papas v. Upjohn Co. (11th Cir.1993) 985 F.2d 516 (Papas II); Arkansas-Platte & Gulf v. Van Waters & Rogers (10th Cir.1993) 981 F.2d 1177 (Arkansas-Platte II); Kuiper v. American Cyanamid Company (1997) 131 F.3d 656, that FIFRA does not preempt state law causes of action predicated on a failure to warn.

At the root, the view that section 136v, subdivision (b), bars such causes of action is grounded on the reflexive notion that it is unfair to impose liability for a failure to warn when the manufacturer is compelled under federal law to adhere to the warning label required by EPA. (See, e.g., Arkansas-Platte I, supra, 959 F.2d at p. 162.) It is a policy argument. However, the force of this sentiment does not withstand careful examination.

The defendant's summary judgments presuppose for present purposes that there would be liability but for...