First Nat. Bank in Albuquerque v. U.S.
| Decision Date | 24 March 1977 |
| Docket Number | No. 75-1301,75-1301 |
| Citation | 552 F.2d 370 |
| Parties | FIRST NATIONAL BANK IN ALBUQUERQUE, as guardian for and on behalf of Dorothy Jean Huckleby, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William G. Gilstrap, Albuquerque, N. M. (Smith, Ransom & Gilstrap, Albuquerque, N. M., on brief), for plaintiffs-appellants.
William R. Hughes, Jr., Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., Albuquerque, N. M., on brief), for defendant-appellee.
Before HOLLOWAY, BARRETT and DOYLE, Circuit Judges.
This tragic case arose from the mercury poisoning of four children of a New Mexico family. The source of the poison was meat from a hog which had been fed seed treated with a mercury fungicide. The plaintiffs appeal from a judgment dismissing their suit brought under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et seq., for alleged negligence on the part of Government employees in the registration for interstate sale and approval of the labeling of the fungicide pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.A. § 135 et seq.
The basic facts are not in dispute. Mr. Ernest Huckleby raised hogs as a sideline to his regular work as a janitor in the public schools of Alamogordo, New Mexico. In 1969, he and other local hog-raisers bought grain from the Golden West Seed Company in Clovis to be used as feed for their hogs. They were also given a large amount of "waste" grain which had been partially bagged and stored in a shed on the premises of Golden West. The waste grain included some seeds, pink in color, which had been treated with a mercury fungicide, Panogen 15, to protect the seed before it was planted.
The fungicide was manufactured by Morton Chemical Company, whose name was changed to Nor-Am Agricultural Products, Inc., before this litigation began. Panogen 15 was registered with, and its labeling was approved by, the Pesticides Regulation Division (PRD) of the Department of Agriculture pursuant to the provisions of FIFRA.
Some of the treated grain was mixed with garbage and fed daily to the family's hogs. One of the hogs was slaughtered in the fall of 1969 and the family began eating the meat daily. In early December the first of the Huckleby children became ill; by early January, two more children were similarly stricken, and a fourth was ultimately afflicted. 1 By this time, state and federal health authorities had been called in to determine whether an epidemic might be starting.
In mid-January, after an investigation by these authorities, it was determined that the Huckleby children were suffering from organic mercury 2 poisoning as a result of their eating the meat from the hog which had been fed the grain treated with Panogen 15. 3 Thus a "food-chain" poisoning was involved.
Alkyl mercury poisoning does irreversible damage to the central nervous system. It affects sight, speech, locomotion and the ability to grasp objects or otherwise use one's hands properly. The Huckleby children suffered severe permanent injuries as a result of the poisoning, 4 as the district court found.
After an administrative claim was denied, plaintiffs brought this suit under the Federal Tort Claims Act. 5 Their main claims of negligence were that the failure of PRD to require a label with an adequate warning of the danger of food-chain poisoning, and the failure to cancel the registration of Panogen 15 on the basis of known facts, were a proximate cause of the injuries; that the registration would have been cancelled had PRD followed an Interdepartmental Agreement among the Departments of Agriculture, Interior and HEW; and that the number of Public Health Service objections to PRD over the registration of products containing organic mercury compounds should have led to testing and investigation on the adequacy of the labels.
The Government denied any negligence. It also alleged that PRD employees were exercising due care in the administration of the statute and regulations and hence it was exempt from liability under the exception in 28 U.S.C.A. § 2680(a), and that liability was likewise barred by the discretionary function exception of § 2680(a).
After a lengthy trial the district court found for the Government. The court's opinion essentially found that PRD had evaluated the label in accordance with FIFRA and the regulations as far as specific label items required by the statute and regulations were concerned; that PRD had discretion in that it must make policy judgments as to necessary label contents beyond those specific requirements; that the decision on the need for further testing and investigation of the alkyl mercury compound was a determination within the discretion of the Director of PRD; and that argument as to the failure of PRD to implement the Interdepartmental Agreement was immaterial because cancellation of Panogen's registration was within the Director's discretion.
The court concluded, inter alia, that where the agency performed its duties under the statute, and where the evaluation of the label and the decision to re-register the product involved discretion, even if that discretion was abused, 28 U.S.C.A. § 2680(a) applied and the Government was immune from suit. The action was dismissed and this appeal followed.
FIFRA provides the basic framework for the federal regulation of "economic poisons" in interstate commerce. 6 The Act requires that every economic poison must be registered with the Secretary of Agriculture before it can be marketed in interstate commerce. 7 U.S.C.A. § 135b(a). In order to have his product registered under the Act, an applicant had to demonstrate to the satisfaction of the Secretary 7 that his economic poison is effective as claimed and that it meets the safety requirements of the Act. 7 U.S.C.A. § 135b(b).
The Secretary delegated his authority to the Director of PRD. 7 CFR § 362.3 (Jan. 1, 1970). 8 In order for a product to be registered, the manufacturer was required to submit to PRD an application for registration which included copies of the proposed labeling and the results of tests which measured the product's toxicity and efficacy. 7 U.S.C.A. § 135b(a); 7 CFR § 362.10(c) (Jan. 1, 1970). The application was evaluated by three separate groups within PRD. First, the "new chemicals evaluation staff" reviewed the label for accuracy in such areas as ingredient statements, chemical composition and chemical nomenclature. Second, the "product evaluation staff" reviewed the test data and the labels for the purpose of evaluating statements on the poison's effectiveness in the control of pests and other plant diseases. Third, the "pesticides safety evaluation staff" reviewed the toxicological data relating to the product's safety with respect to man and animals, and determined which warnings and precautionary statements should be placed on the label. When the poison's labeling was approved and the Secretary found that the claims for the product were warranted, he registered the product. 7 U.S.C.A. § 135b(b).
This registration was good for five years. At the end of this time the Secretary was authorized to cancel the registration, or, if requested by the applicant in accordance with the regulations, the pesticide could be re-registered for another five-year period. 7 U.S.C.A. § 135b(f) (1976 Supp.). However, at any time when an economic poison's labeling was found not to comply with the Act, the Secretary could suspend or cancel the product's registration. 7 U.S.C.A. § 135b(c) (1976).
Mercury is often combined with organic chemical compounds to form what are known as "organic mercurials." These serve a wide variety of purposes. In agriculture, it was discovered that organic mercurials were effective as fungicides and that methylmercury was one of the most effective. The first reported use of an organic mercurial as a seed treatment to kill plant fungi was reported in 1913. This practice became widespread in the United States and other developed parts of the world by the 1930s.
A typical mercury fungicide will contain both active and inert ingredients. The active ingredient is often a methylmercury combined with another chemical compound in such a way that the active ingredient is then water soluble. This facilitates the fungicide's application on seeds during the treatment process. For example, the only active ingredient in Panogen 15 is Cyano(methylmercuri) guanidine which is a combination of methylmercury and guanidine. This compound comprises 2.2% of the Panogen 15 by weight. The remainder (97.8%) is made up of inert ingredients.
Panogen 15 was first registered with the Department of Agriculture in 1953 and has been re-registered several times since then, mostly recently in 1968. Panogen's registration was suspended in January, 1970, primarily due to the Huckleby incident. 10
The Panogen 15 sold to the Golden West Seed Company came in 54-gallon drums. The drum label shown to have been in use at about the time of these injuries is reproduced in the appendix to this opinion. 11 The most pertinent parts of the label to note for our purposes are the following warnings under the caption "Caution":
This product is toxic to fish and wildlife. Keep out of any body of water. Treated seeds exposed on soil surface will be hazardous to birds and other wildlife. Rinse equipment and containers and dispose of wastes by burying in noncrop lands away from water supplies.
Further down under the heading "Precautions" was a statement directed to persons using Panogen 15 to treat seeds. This statement referred to the contents of the tags to be placed on bags of treated seed, and it read in part:
. . . The statement 'Do not use this seed for food, feed or oil purposes' must appear in 8 point or larger. 12
The plaintiffs claim...
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