Fisher v. Chevron Chemical Co.

• Decision Date: 07 July 1989
• Docket Number: No. 88-4489-CV-C-9.,88-4489-CV-C-9.
• Citation: 716 F. Supp. 1283
• Parties: Joe W. (Billy) FISHER, et al., Plaintiffs, v. CHEVRON CHEMICAL COMPANY, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

716 F. Supp. 1283

Joe W. (Billy) FISHER, et al., Plaintiffs, v. CHEVRON CHEMICAL COMPANY, et al., Defendants.

No. 88-4489-CV-C-9.

United States District Court, W.D. Missouri, C.D.

July 7, 1989.

Louis J. Leonatti and Jerome W. Seigfreid, Seigfreid, Runge, Leonatti & Pohlmeyer, Mexico, Mo., for plaintiffs.

Fairfax Jones, Biggs & Hensley, P.C., Clayton, Mo., for Chevron Chemical Co. Thomas B. Alleman and Millie M. Donohoe, Niewald, Waldeck, Norris & Brown, Kansas City, Mo., for Estech, Inc. and Beatrice Foods, Inc.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS ESTECH AND BEATRICE FOODS' NOVEMBER 21, 1988, MOTION TO DISMISS

BARTLETT, District Judge.

On October 27, 1988, plaintiffs Joe and Susan Fisher filed a complaint against defendants Chevron Chemical Company (Chevron), Estech, Inc. (Estech) and Beatrice Foods, Inc. (Beatrice). Plaintiffs, who are farmers, allege that a neighbor who owns farmland adjacent to their land hired a spray plane to spray his crops and that the herbicide spray which contained the chemical Paraquat drifted onto plaintiffs' land causing personal injury and property damage. Plaintiffs allege that Chevron manufactured, distributed and sold the Paraquat that injured plaintiffs. They allege that Estech acquired (and is therefore answerable for the liability of) Shelby-Macon Fertilizer Company which sold and distributed Paraquat. Plaintiffs assert that Beatrice thereafter assumed the liabilities of Estech. Neither the neighbor nor the spray plane company are parties to this case. Jurisdiction is based solely on diversity.

Plaintiffs assert that defendants are liable under "one or all of the following theories:" 1) Chevron sold the Paraquat in a defective condition, unreasonably dangerous when put to a reasonably anticipated use; 2) Chevron failed to give an adequate warning of the dangers of Paraquat; 3) Chevron furnished Paraquat to Shelby-Macon for resale without warning Shelby-Macon or plaintiffs of the dangerous condition of the Paraquat; 4) Chevron sold Paraquat to Shelby-Macon which sold it to plaintiffs' neighbor who arranged to have it applied to his land and defendants failed to warn plaintiffs of the dangers posed by Paraquat; 5) Chevron is strictly liable for damages caused by aerial spraying which is an inherently or abnormally dangerous activity; and 6) Chevron failed to warn or take precautions to prevent Praquat "from being used as an aerial spray or warn against its use on congested or inappropriate areas or at inappropriate times and in inappropriate weather conditions." Complaint at 5-7.

Plaintiffs previously filed this case as No. CV 682-23CC in the Circuit Court of Monroe County, Missouri, and voluntarily dismissed it on November 4, 1987. The case was refiled within one year as authorized by the appropriate statute of limitations, Mo.Rev.Stat. § 516.230.

On November 22, 1988, Chevron filed an answer. On November 21, 1988, Estech and Beatrice filed a motion to dismiss on the grounds that: 1) plaintiffs failed to pay costs as is proper under Rule 41(d), Federal Rules of Civil Procedure, when the circuit court case was previously dismissed; and 2) plaintiffs' state common law tort actions are preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136, et seq.

On December 2, 1988, plaintiffs filed opposition to the motion to dismiss arguing that 1) Rule 41(d) does not permit me to dismiss an action for failure to pay costs of a previous action and 2) plaintiffs' state common law claims are not preempted or, alternatively, are not all preempted.

I. Plaintiffs' Complaint Will Not be Dismissed or Stayed Under Rule 41(d)

Rule 41(d) provides:

If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.

Defendants argue that on this basis plaintiffs' complaint should be dismissed or stayed. Defendants do not present any details to support their request such as the amount of costs at issue or whether plaintiffs have, in fact, received a cost bill from the circuit court. Plaintiffs state they did not receive a cost bill from the circuit court until after defendants' motion was filed.

Because defendants have not presented an adequate factual basis upon which to apply Rule 41(d) and because I am persuaded that Rule 41(d) does not authorize me to dismiss the case, I decline to either stay or dismiss this case.

II. Plaintiffs' Common Law Claims Based Upon Failure to Warn or Inadequate Warning Are Preempted

In the seminal case of Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210-11, 6 L.Ed. 23 (1824), the Supreme Court ruled that the Supremacy Clause, U.S. Const. Art. VI, gives Congress authority to legislate in preemption of state law. In Louisiana Public Service Commission v. Federal Communications Commission, 476 U.S. 355, 368-69, 106 S.Ct. 1890, 1898-99, 90 L.Ed.2d 369, 381-82 (1986), the Court summarized the principles of preemption:

Pre-emption occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, Jones v. Rath Packing Co., 430 U.S. 519, 51 L.Ed.2d 604, 97 S.Ct. 1305 (1977), when there is outright or actual conflict between federal and state law, e.g., Free v. Bland, 369 U.S. 663, 8 L.Ed.2d 180, 82 S.Ct. 1089 (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, 10 L.Ed.2d 248, 83 S.Ct. 1210 (1963), where there is implicit in federal law a barrier to state regulation, Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 77 L.Ed.2d 490, 103 S.Ct. 2890 (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. Santa Fe Elevator Corp., 331 U.S. 218, 91 L.Ed. 1447, 67 S.Ct. 1146 (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, 85 L.Ed. 581, 61 S.Ct. 399 (1941).

The gist of preemption is whether Congress did (expressly) or meant to (impliedly) displace state law or state law concepts in enacting federal law. Palmer v. Liggett Group, Inc., 825 F.2d 620, 625-26 (1st Cir.1987). The burden of demonstrating preemption falls upon defendants. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255, 104 S.Ct. 615, 625, 78 L.Ed.2d 443 (1984).

In FIFRA, Congress has provided a comprehensive system for the registration and labeling of pesticides. The parties agree that Paraquat is subject to the regulatory provisions of FIFRA. Under FIFRA, the Environmental Protection Agency (EPA) is directed to register a pesticide if the EPA determines that "it will perform its intended function without unreasonable adverse effects on the environment." 7 U.S.C. § 136a(c)(5)(C). When a pesticide is registered, the manufacturer must submit the proposed label to the EPA for approval. The label must be "adequate to protect health and the environment," see 7 U.S.C. § 136(q)(1)(G), and "likely to be read and understood...." See 7 U.S.C. § 136(q)(1)(E).

Congress has expressly stated its intent to preempt any state labeling or packaging requirements different from or additional to those mandated by FIFRA. (However, Congress has allowed states to have a greater role in regulating the sale and use of pesticides.)

(a) 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.

(b) 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(a), (b).

A. Express Preemption

Although § 136v(b) shows express congressional intent to preempt state labeling regulations, it does not expressly evidence intent to preempt state common law tort claims arising from allegedly inadequate labels and warnings. In reaching this conclusion, I rely on the general presumption against preemption (see Maryland v. Louisiana, 451 U.S. 725, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981)) and also Congress's failure to refer specifically to state common law remedies in § 136v(b) as it has in other statutes.¹

Where there is no express preemption, the Supreme Court has turned to principles of implied preemption in evaluating whether a federal statutory scheme preempts state common law remedies. See, e.g., Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984); Chicago & North Western Transportation Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981).

B. Implied Preemption

1. FIFRA Does Not "Occupy the Field" Encompassing Every Aspect of the Relationship Between Pesticides and Damages Arising From Their Use

Applying the principles of implied preemption, the first issue is whether Congress intended "to occupy the field" relating to pesticides and injuries arising from their use to the exclusion of state common law actions based on failure to warn. See Cipollone v. Liggett Group, Inc., 789 F.2d 181, 186 (3rd Cir.1986) (applying similar analysis in tobacco litigation). In FIFRA, Congress intended to occupy a field (regulation of labeling). However, Congress did not intend to preempt all state common law claims for damages from the sale and use of pesticides. See 7 U.S.C. § 136v(a) authorizing states to regulate the sale and use of pesticides more stringently than federal law.

Therefore, the scheme created by FIFRA is not "so pervasive" or the federal interest "so dominant" as to demonstrate an intent to preempt all state law claims. See Roberts...