Hoelck v. ICI Americas, Inc.
| Decision Date | 15 September 1998 |
| Docket Number | No. A-96-1268,A-96-1268 |
| Citation | 7 Neb.App. 622,584 N.W.2d 52 |
| Parties | , Prod.Liab.Rep. (CCH) P 15,363 John A. HOELCK, Appellant, v. ICI AMERICAS, INC., Appellee. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Federal Acts: Claims. Failure-to-warn and labeling-based claims brought under common-law causes of action against manufacturers of pesticides are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act.
2. Federal Acts: Claims. Packaging-based claims brought under common-law causes of action against manufacturers of pesticides are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act.
3. Federal Acts: Claims: Proof. A factual predicate to a successful defense that the Federal Insecticide, Fungicide, and Rodenticide Act preempts labeling- and packaging-based claims is proof that the label or package in question has been approved by the Environmental Protection Agency.
4. Federal Acts: Claims. The Federal Insecticide, Fungicide, and Rodenticide Act does not preempt claims based upon a manufacturer's failure to provide information to the Environmental Protection Agency.
5. Federal Acts: Claims: Negligence. The Federal Insecticide, Fungicide, and Rodenticide Act does not preempt claims based upon a manufacturer's negligent testing of a product.
6. Summary Judgment. The primary purpose of the summary judgment statute is to pierce sham pleadings and to dispose of those cases where there is no genuine claim or defense.
7. Summary Judgment. Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
Patrick M. Connealy and Laurice M. Margheim, Chadron, for appellant.
Thomas J. Culhane, of Erickson & Sederstrom, P.C., Omaha, for appellee.
Plaintiff, John A. Hoelck, a farm laborer, was allegedly injured when gases from bags which had contained an insecticide, Dyfonate 20-G, exploded and his clothing caught on fire. Hoelck filed a negligence and strict liability action against his employer and against the manufacturer of the insecticide, ICI Americas, Inc., now called ZENECA (hereafter ZENECA). The trial court granted ZENECA's first summary judgment motion, finding that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136 to 136y (1988), preempted the bulk of Hoelck's claim. A sole remaining allegation of negligence was dismissed on ZENECA's second motion for summary judgment. Hoelck appeals. The employer is not part of this appeal.
According to Hoelck's operative petition, on June 16, 1989, Hoelck's employer instructed him to burn some empty paper and plastic bags in which Dyfonate 20-G, a granular insecticide manufactured by ZENECA, had been sold. The label on the bags informed users that the insecticide was considered noncombustible and that once the bags were emptied they could be disposed of by burning. The label warned users to stay out of the smoke because toxic materials could be given off. Hoelck ignited several Dyfonate 20-G bags in a barrel, and as the bags started to burn, gases from the bags exploded, igniting his clothing and causing severe burns.
Hoelck filed a lawsuit against his employer and ZENECA. In paragraph VIII of his amended petition, Hoelck alleged that ZENECA was negligent as follows:
A. In misbranding by stating that Dyfonate 20-G is "considered noncombustible" when it is highly combustible under the conditions likely to occur during use by consumers.
B. In recommending that the empty bags be destroyed by burning when it knew, or should have known, that gases given off when Dyfonate 20-G is heated are highly combustible.
C. By failing to investigate and determine if Dyfonate 20-G bags could be safely burned as stated by [ZENECA] and as directed by [Hoelck's employer].
D. In marketing a combustible insecticide when other reasonable alternatives were available to it.
E. In packaging flammable chemicals in paper bags for sale to consumers.
F. By failing to warn [Hoelck] that the residue in Dyfonate 20-G bags might be dangerously combustible.
G. In failing to adequately warn of risks involved in burning Dyfonate 20-G bags.
In paragraph IX, Hoelck further alleged:
Dyfonate 20-G, as manufactured and packaged by [ZENECA] was defective and unreasonably dangerous to users or consumers because:
A. it is combustible material packaged in a flammable package;
B. of defective and misleading labeling and misbranding of the container;
C. [ZENECA] failed to warn of the danger inherent in burning any amount of Dyfonate 20-G.
ZENECA's answer alleged by way of defense that, inter alia, Hoelck's petition failed to state a cause of action because
Dyfonate 20G is a pesticide regulated by the United States Government under the terms of [FIFRA], which act sets forth the only labeling requirements applicable to Dyfonate 20G and preempts, by virtue of 7 U.S.C. § 136v, any state laws or actions brought under state law based upon allegations of improper labeling and/or a failure to warn users of risks associated with use of Dyfonate 20G.
Prior to trial, ZENECA filed a motion for partial summary judgment. The motion is not included in our records, but presumably ZENECA alleged that all but one of Hoelck's claims were preempted by FIFRA. The trial court granted ZENECA's motion for partial summary judgment, stating that all of Hoelck's allegations of both negligence and strict liability, except those stated in paragraph VIII(D) of his petition, were barred because they were preempted by FIFRA.
ZENECA subsequently filed a second motion for summary judgment on the remaining allegation. The trial court granted ZENECA's motion, finding that there were no genuine issues of material fact and that ZENECA was entitled to judgment as a matter of law. Hoelck timely appeals.
Hoelck alleges the trial court erred (1) in receiving and considering the affidavit of Andrew Davidson, a ZENECA employee; (2) in finding that FIFRA preempted Hoelck's claims; and (3) in granting ZENECA's second motion for summary judgment.
In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Marrs v. Keelan, 254 Neb. 723, 578 N.W.2d 442 (1998); Syracuse Rur. Fire Dist. v. Pletan, 254 Neb. 393, 577 N.W.2d 527 (1998).
Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Marrs v. Keelan, supra; Houghton v. Big Red Keno, 254 Neb. 81, 574 N.W.2d 494 (1998).
Regarding questions of law, an appellate court is obligated to reach conclusions independent of those reached by the trial court. First Nat. Bank v. Daggett, 242 Neb. 734, 497 N.W.2d 358 (1993).
FIFRA Generally.
The evidence is clear that Dyfonate 20-G is a pesticide. Congress originally adopted FIFRA in 1947 as a pesticide labeling statute. Wright v. Dow Chemical U.S.A., 845 F.Supp. 503 (M.D.Tenn.1993). Under FIFRA, no pesticide may be sold or distributed unless it has been registered with the Environmental Protection Agency (EPA). 7 U.S.C. § 136a(a).
Since its initial passage in 1947, FIFRA has undergone several significant transformations, each reflecting dissatisfaction with existing mechanisms for limiting potential health risks posed by chemical pesticides. See Burke v. Dow Chemical, 797 F.Supp. 1128 (E.D.N.Y.1992). In its current form, FIFRA requires that EPA rely on manufacturers for information about the safety of their products. 7 U.S.C. § 136a(c). However, much of the information known to the manufacturer is withheld from the public; indeed, "[t]he production of data to support a pesticide registration is controlled by the registrant, and this data may be withheld from public scrutiny as a trade secret." Burke, 797 F.Supp. at 1134 (quoting Tybe A. Brett & Jane E.R. Potter, Risks to Human Health Associated with Exposure to Pesticides at the Time of Application and the Role of the Courts, 1 Vill.Envtl.L.J. 355, 363 (1990)).
Unless alerted by the manufacturer to dangers or the need for special restrictions in the use of the product, it is unlikely that EPA will assume the burden of deciding whether a product should not be sold to the public. Id. at 1135. Although no insecticide may be sold in the United States unless registered with EPA, it is the applicants for registration who are responsible for submitting performance data and draft product labels to EPA. 7 U.S.C. § 136a( [c] ). The degree of specificity that must be submitted depends on the nature of the pesticide and its intended use. See 40 C.F.R. §§ 158.100-158.740.
Higgins v. Monsanto Co., 862 F.Supp. 751, 755 (N.D.N.Y.1994). Although FIFRA does provide for individuals with standing to petition EPA to cancel or suspend registrations and also to seek judicial review of EPA decisions under 7 U.S.C. § 136n(a), because consumers will not ordinarily bring such petitions absent a catastrophe or voluntary action by the manufacturer, EPA oversight will not be nearly as protective of persons exposed to pesticides as state tort law.
FIFRA Preemption.
"In deciding whether federal law preempts state law, courts must 'start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that is the clear and manifest purpose of Congress.' "...
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