Gooch v. E.I. Du Pont De Nemours & Co.

Decision Date08 February 1999
Docket NumberNo. Civ.A. 4:97CV-144-M.,Civ.A. 4:97CV-144-M.
Citation40 F.Supp.2d 863
PartiesSteve GOOCH d/b/a Gooch Farms, Plaintiff, v. E.I. DU PONT DE NEMOURS & COMPANY, Defendant.
CourtU.S. District Court — Western District of Kentucky

Kenneth W. Humphries, Hopkinsville, KY, for plaintiff.

J. Michael Brown, Wyatt, Tarrant & Combs, Louisville, KY, John P. Mandler, Mark J. Carpenter, Faegre & Benson, Minneapolis, MN, for defendant.


McKINLEY, District Judge.

This matter is before the court on the Motion of the Defendant, E .I. du Pont de Nemours & Company (hereinafter DuPont), for Summary Judgment. [DN 45]. The Plaintiff, Steve Gooch d/b/a Gooch Farms (hereinafter Gooch), timely filed a response to this motion. [DN 53]. Gooch initiated this products liability lawsuit to recover for damages suffered after he applied the Defendant's herbicide to his corn crop. Plaintiff's claims are based on the theories of negligence, strict liability, breach of express and implied warranty, violation of the Kentucky Consumer Protection Act, and fraud.1 The Court held oral arguments on the Motion for Summary Judgment on January 22, 1999. Having considered these arguments and the party's briefs, the Court finds this matter ripe for decision. For the reasons discussed below, the Defendant's Motion is GRANTED.


Gooch owns and operates a large farming operation under the business name of Gooch Farms. In 1996, the time relative to this lawsuit, Gooch farmed approximately 1900 acres. Of these 1900 acres, Gooch owned 500 acres with the remainder being farmed under sharecropping agreements. Gooch planted corn on approximately 1000 acres of this land. Gooch is an experienced, sophisticated and successful farmer. Gooch is also a licensed private pesticide applicator in the state of Kentucky with over 30 years of experience.

In June of 1996, Gooch purchased Accent®SP (hereinafter Accent) for application to the corn crop from Parrish Shop and Sales. Accent is a herbicide manufactured by DuPont designed to control rhizome johnson grass. Gooch stated in his deposition that he used Accent every year since the product became available in the market in 1989 or 1990. Gooch also testified that he read the label accompanying the Accent before applying it in 1996. Furthermore, he testified that in prior years when he purchased and applied Accent, he likewise read the label before applying the product. The label contains the following warranty information:2


It is impossible to eliminate all risks associated with the use of this product. Such risks arise from weather conditions, soil factors, off target movement, unconventional farming techniques, presence of other materials, the manner of use or application, or other unknown factors, all of which are beyond the control of DuPont. These risks can cause: ineffectiveness of the product; crop injury, or; injury to non-target crops or plants.

DuPont does not agree to be an insurer of these risks. WHEN YOU BUY OR USE THIS PRODUCT, YOU AGREE TO ACCEPT THESE RISKS.

DuPont warrants that this product conforms to the chemical description on the label thereof and is reasonably fit for the purpose stated in the Directions for Use, subject to the inherent risks described above, when used in accordance with the Directions for Use under normal conditions.



[DN 53, Affidavit of Steve Gooch, Attachment]. The warranty further limits damages to recovery of the purchase price of the Accent or replacement of the product.

Before purchasing the Accent, Gooch engaged in several conversations with DuPont's field representative, Earl Strawder, who informed him that Accent was a good product to control rhizome johnson grass. Gooch conducted additional research about Accent by reading the information contained in the herbicide's brochures, speaking with other farmers and county extension agents, and reviewing magazine articles. As mentioned above, Accent is a herbicide that when applied to a field kills selective plants, specifically johnson grass, without similarly affecting other plants, specifically corn. Gooch purchased the Accent to accomplish just that purpose.

After purchasing the product, Gooch set out to apply the Accent to a portion of his corn crop by using a John Deere hi-cycle sprayer. When Gooch reached the site he was to spray, he mixed the Accent which came in a solid form in plastic bags that showed no signs of tampering. Gooch testified that he followed the label instructions in mixing the Accent. Gooch then applied the mixture to approximately 56 acres of his farmland. Three days following the application, Gooch began to notice signs of stunting injury to the corn. During the next two weeks the corn worsened as it began to curl and twist. Gooch testified by deposition that this injury only occurred to the rows of corn sprayed with Accent, the unsprayed rows of corn remained healthy and productive. The corn, however, did not completely die. It eventually grew out of the injury, but not in time to produce any ears of corn.

Alarmed, Gooch notified Parrish Shop & Sales from whom he purchased the product, as well as the local county extension agent of the problem with the corn. The agent took samples of the corn for testing. Gooch and Ed Strawder also took individual samples of the corn to conduct their own tests. Dr. James Martin performed the tests on the samples obtained by the county extension agent. These tests disclosed that the corn suffered from severe Accent damage. Mr. Strawder's testing, performed by APT Labs, Inc., concluded that the corn suffered because it contained glyphosate in a concentration of 1.74 parts per million. Glyphosate is the main ingredient contained in a chemical commonly known as Roundup which is lethal when applied to plants. Gooch's samples were sent to A & L Labs who subcontracted the testing to Minnesota Valley Testing Laboratories. These tests revealed that the samples contained glyphosate at a concentration of only .16 parts per million. Other testimony in the form of depositions and affidavits obtained by Gooch express an opinion that the injury to the corn resulted from the application of the Accent.

In June of 1997, Gooch filed this lawsuit against DuPont in the Henderson Circuit Court. DuPont timely remove the action to this Court pursuant to 28 U.S.C. § 1441. Gooch's existing claims are grounded in theories of negligence, strict products liability, breach of express and implied warranty. DuPont has filed a Motion for Summary Judgment to which Gooch filed a timely response.


In ruling on a motion for summary judgment, this Court must determine whether there is a genuine issue as to any material fact and if the moving party is entitled to a judgment as a matter of law. FED.R.CIV.P. 56(c); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472 (6th Cir.1989). The party moving for a summary judgment bears the burden of showing an absence of a material fact in the case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine dispute exists when the evidence is of such a nature that "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, this Court must determine if there is significantly probative evidence, not merely colorable evidence, to support a verdict for the nonmoving party. Id. at 249, 106 S.Ct 2505. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252, 106 S.Ct. 2505. The simple possibility that a factual dispute exists is insufficient to prevent summary judgment. Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986). Summary judgment is warranted where, after the close of discovery, one party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. When examining the evidence on a motion for summary judgment, the Court must look to the evidence in light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348; Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996), cert. denied 519 U.S. 1055, 117 S.Ct. 683, 136 L.Ed.2d 608 (1997). This Court has original jurisdiction under the diversity of citizenship provision found in 28 U.S.C. § 1332. Thus, this Court must apply the substantive law of the state of Kentucky.

A. Implied and Express Warranty Claims
1) Application of Warranty Disclaimers Found on the Accent Label

DuPont asserts that Gooch's claims for breach of implied warranty must fail because of the language found within the Accent label which disclaims any implied or express warranties. Gooch responds that such disclaimers are ineffective and unconscionable. Additionally, Gooch avers that the course of dealing or usage of trade imply warranties that a company will compensate a farmer in the event his or her crop is injured or lost because of a chemical application.

Under Kentucky law, a party may exclude or disclaim any implied warranty of merchantability or any implied warranty of fitness by including the appropriate language in the contract or agreement. The KRS 355.2-316(2) provides as follows:

[T]o exclude or modify the implied warranty of merchantability or any...

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