Hardin v. Basf Corp.
| Decision Date | 26 September 2003 |
| Docket Number | No. 4:00 CV 00500 SWW, 4?00 CV 00503 SWW.,4:00 CV 00500 SWW, 4?00 CV 00503 SWW. |
| Citation | 290 F.Supp.2d 964 |
| Parties | Randy HARDIN, E.C. Hardin, Jr., Evelyn H. Allmon, Vernon Blasingame, Gary E. Goodwin, Melanie R. Goodwin, Ed Fortson and Marion Fortson Plaintiffs v. BASF CORPORATION Defendant Forrest Falls, Mary Ann Falls, Hilda Baumgarner, Leroy Baumgarner, Allen Cook, Kerry Falls, Lane Falls, Sandy Falls, Gary Houston, Keith Houston, Rose Houston, Bennie Ladd, Ruth Ladd, Melvin Messer, Ruth Messer, Shelby Newberry, and Artie Winningham Plaintiffs v. BASF Corporation Defendant |
| Court | U.S. District Court — Eastern District of Arkansas |
Joseph Henry Bates III, Esq., McMath, Vehik, Drummond, Harrison & Ledbetter, P.A., Little Rock.
J. Bruce McMath, Esq., McMath, Vehik, Drummond, Harrison & Ledbetter, P.A., Little Rock.
Patrick William McAlpine, Esq., Quattlebaum, Grooms, Tull & Burrow PLLC, Little Rock.
John E. Tull III, Esq., Quattlebaum, Grooms, Tull & Burrow PLLC, Little Rock.
Steven W. Quattlebaum, Esq., Quattlebaum, Grooms, Tull & Burrow PLLC, Little Rock.
Plaintiffs, commercial tomato growers in eastern Arkansas, bring this lawsuit pursuant to the Court's diversity jurisdiction, seeking compensatory and punitive damages for crop losses allegedly caused by a herbicide marketed under the trade name Facet, manufactured by Defendant BASF Corporation ("BASF"). This order addresses two motions currently pending in this case: (1) BASF's motion for summary judgment based on federal preemption (docket entry # 111) and (2) Plaintiffs' motion for reconsideration of their motion to amend to add a claim for violations of the Arkansas Deceptive Trade Practices Act (docket entry # 174). After full consideration of these motions, as well each related response and reply and pertinent portions of the record, the Court concludes that Defendant's motion for summary judgment should be granted and Plaintiffs' motion for reconsideration should be denied.
Plaintiffs allege that Facet, which is used by rice farmers to kill barnyard grass, poses a substantial danger to non-target vegetation, particularly tomatoes. They claim that since 1992, Facet applied to rice fields in eastern Arkansas has drifted to their tomato crops and damaged them. According to Plaintiffs, regardless of precautions followed in using Facet, it is a defective and unreasonably dangerous product.
Plaintiffs seek relief under two theories: negligence and strict liability. They claim that BASF negligently designed, manufactured, and supplied Facet and failed to test the herbicide and "take measures to abate or remediate the damage caused by drift or movement of Facet onto off-target locations, including Plaintiffs' property." Docket entry # 149, ¶ 119. Additionally, they charge that BASF supplied Facet in a defective condition-specifically, with the alleged capacity to harm non-target plants-rendering the herbicide unreasonably dangerous. BASF moves for summary judgment, asserting that Plaintiffs' claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA").
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). As a prerequisite to summary judgment, a moving party must demonstrate an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion for summary judgment, the non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When considering a motion for summary judgment, a court must construe all evidence in favor of the non-moving party. Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). However, the non-moving party may not rest on mere allegations or denials of his pleading but must "come forward with `specific facts showing that there is a genuine issue for trial.'" Id. at 587, 106 S.Ct. 1348.
In 1972, Congress amended FIFRA, transforming what had been a labeling law into a comprehensive regulatory statute governing the use, sale, and labeling of pesticides1 produced and sold in intrastate and interstate commerce. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991-95, 104 S.Ct. 2862, 2867-2862, 81 L.Ed.2d 815 (1984) (). As amended, FIFRA gives the Environmental Protection Agency ("EPA") authority over the registration, cancellation, and suspension of pesticides. No person in any state may distribute or sell a pesticide that is not registered with the EPA in accordance with FIFRA. See 7 U.S.C. § 136a.
FIFRA establishes an complex review process for approval of a label under which a pesticide may be marketed. Pesticide manufacturers must submit draft labels addressing several topics including ingredients, directions for use, and adverse affects. As a prerequisite to registration, the EPA must determine, among other things, that a pesticide will perform its intended function without causing unreasonable adverse effects on the environment. See 7 U.S.C. § 136a(c)(5)(A)-(D). FIFRA defines "environment" as "water, air, land, and all plants and man and other animals living therein and the interrelationships which exist amount these." 7 U.S.C. § 136(j).
To ensure uniform labeling requirements for pesticides, FIFRA expressly prohibits states from imposing "any requirements for labeling or packaging in addition to or different from those required under [FIFRA]." 7 U.S.C. § 136v(b)(emphasis added).2 The Eighth Circuit has interpreted this express preemption provision to usurp any state law claims, whether predicated on statutory or common law, premised on inadequate labeling or failure to warn. See Nat'l Bank of Commerce of El Dorado, Arkansas v. Dow Chemical Co., 165 F.3d 602, 608 (8th Cir.1999).
Under the law of this Circuit, whether a plaintiff's claim is preempted under § 136v(b) does not depend on the label a plaintiff attaches to his claim: Id. at 608 (emphasis in original).
The line between claims attacking a pesticide's label and those seeking relief for a defective product is not always clear. Recognizing this fact, in Netland v. Hess & Clark, 284 F.3d 895 (8th Cir.2002), the Eighth Circuit adopted a test for determining whether a state law claim actually imposes a labeling requirement preempted under FIFRA. Id. at 100. That test inquires "whether one could reasonably foresee that the manufacturer, in seeking to avoid liability for the error, would choose to alter the product or the label." Worm v. American Cyanamid Co., 5 F.3d 744, 747-48 (4th Cir.1993).
Plaintiffs argue that BASF would not alter Facet's label to avoid liability because Facet is so toxic that no label warnings or application instructions could make the herbicide safe for the environment, namely non-target plants. However, as explained below, the record shows otherwise.
In 1992, when Facet appeared on the market, Plaintiffs began suffering significant crop losses, which they reported to the Arkansas State Plant Board ("ASPB"). See docket entry # 154, Jan. 21, 2001 Hr'g Tr. at 27.3 ASPB investigators, local cooperative extension service personnel, and University of Arkansas ("U of A") professors examined Plaintiffs' fields, and, after a few years, reached a consensus that quinclorac, the active ingredient in Facet, was damaging Plaintiffs' tomatoes. Id. at 29.
In 1999, the ASPB, EPA, and BASF funded a study carried out by U of A professors, named the "Bansal study" after U of A Professor R.K. Bansal, to learn more about Facet's effect on non-target crops. As part of the study, researchers took air, plant, and soil samples on a regular basis during the 1999 tomato growing season at five, on-farm experimental sites in northeast Arkansas. See docket entry # 143, Ex. 86 () at 3. The conclusion segment of the Bansal study report reads, in part, as follows:
Tomato plants at all five experimental sites in this study were found to have varying degrees of abnormal growth symptoms from the second or third week of May onward. Earliest appearance of symptoms was on May 12. By May 18 all sites had abnormal growth symptoms. The most common symptoms were severe curling and cupping of leaves, small leaf size, lack of vigor, bloom shedding, and poor setting/growth of fruit. At some sites, fruit set on the first set of clusters were quite good. However, fruit set on secondary clusters was extremely poor due to excessive bloom shedding. The observed foliar symptoms were consistent with those known to be caused by quinclorac.... Results from the analysis of air samples showed that the ambient air over the tomato fields contained detectible amounts of quinclorac on many days during the season.... With our limited data on Facet applications, it was not possible to determine the specific sources of quinclorac found in the ambient air. It was...
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