Jeffers v. Wal-Mart Stores, Inc., CIV.A. 3:99-0274.

Citation171 F.Supp.2d 617
Decision Date31 October 2001
Docket NumberNo. CIV.A. 3:99-0274.,CIV.A. 3:99-0274.
CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
PartiesTina Louise JEFFERS, Plaintiff, v. WAL-MART STORES, INCORPORATED, et al., Defendants.

John H. Skaggs, David H. Carriger, The Law Offices of Stuart Calwell, PLLC, Charleston, Counsel for Plaintiff.

James D. McQueen, Jr., Regenia L. Mayne, McQueen, Harmon & Murphy, L.C., Charleston, Counsel for Wal-Mart, Inc.

Thomas E. Scarr, Jenkins Fenstermaker, Huntington, Counsel for United Industries Corporation.

Marc Williams, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, Counsel for DOW Agrosciences, LLC.

Dean T. Barnhard, Joseph G. Eaton, Barnes & Thornburg, Indianapolis, IN, Counsel for DOW Agrosciences, LLC.

Michael M. Fisher, Offutt Fisher & Nord, Charleston, Counsel for C.L. Smith Container Company.


CHAMBERS, District Judge.

Plaintiff's Second Amended Complaint asserts several state common law claims against Dow Agrosciences LLC (Dow). Dow is the manufacturer of Dursban HF, a pesticide product used in retail pest control products, including some Spectracide products to which plaintiff alleges she was exposed. In Count III ("Liability of Product Manufacturers"), plaintiff claims negligence in the design, manufacture, packaging and distribution of pesticide products; failure to warn; failure to provide knowledge of safeguards; negligent packaging and handling, including the failure to warn; and negligent design of the packaging. Count IV alleges the manufacturer breached warranties of fitness and merchantability in that the packaging and warnings were inadequate. Count V asserts strict liability based on defective design, manufacture and use, again identifying the packaging and warnings.1

Dow groups plaintiff's claims into three categories and moves for summary judgment as to each. First, Dow seeks partial summary judgment in its favor as to all warning and labeling claims based on express pre-emption. Next, Dow asserts that Plaintiff's design defect claims should be dismissed because they are subject to implied conflict pre-emption. Last, Dow argues that Plaintiff's packaging claims should be dismissed because there is no evidence that Dow designed, made or distributed the packaging at issue.

Following extensive briefing on these issues, the Court entertained oral argument and received supplemental material from Plaintiff and Dow. The Court compliments counsel for their presentations in both written and spoken form. Having considered the issues, the Court GRANTS Dow's Motion for Partial Summary Judgment on Plaintiff's labeling claims, DENIES Dow's Motion for Summary Judgment on Plaintiff's design defect claim, and GRANTS Dow's Motion for Partial Summary Judgment on Plaintiff's packaging claims.

I. Plaintiff's Labeling Claims

Throughout Plaintiff's Second Amended Complaint, Plaintiff alleges that product manufacturers, including Dow, failed to provide adequate warnings and knowledge of risks and safeguards to persons who may be expected to handle these pesticide products. In particular, Plaintiff claims that the warnings failed to advise of hazards associated with mixing these products with other substances. The parties apparently agree that the EPA-approved label was affixed to the product. Dow relies upon the express pre-emption language of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U .S.C. § 136v(b) (2001), which the Court previously applied to Plaintiff's earlier claims against United Industries, another product manufacturer defendant in this action. See Jeffers v. Wal-Mart, 84 F.Supp.2d 775 (2000). Pointing out that the claims against it are nearly identical to those asserted against United Industries, Dow asks the Court for the same result. Plaintiff offers no resistance.

For the reasons stated in this Court's previous Order, the Court GRANTS Dow's motion for partial summary judgment on Plaintiff's labeling claims. All claims of the Plaintiff against Dow based upon the adequacy of the warnings, instructions, or labeling are expressly pre-empted under FIFRA.

II Plaintiff's Design Defect Claims

Dow asserts the defense of conflict pre-emption as a bar to plaintiff's claims of design defect. At this stage of the proceedings and for purposes of this motion, the Court assumes without deciding that plaintiff's design defect claims are premised on factual grounds distinct from her labeling and packaging claims. She argues that Dursban HF is defective under state products liability law, even if it was made and labeled in conformity with FIFRA's registration and labeling requirements, because some humans are particularly, but unknowingly, susceptible to certain deleterious effects of exposure.

State laws may be displaced by federal law where Congress expressly pre-empts state law, where federal law by implication pre-empts the field,2 or where state law conflicts with federal law. Lorillard Tobacco Co. v. Reilly, ___ U.S. ___, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001). Where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, federal law prevails. Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941). Pre-emption occurs whether the conflict is such that the state law prevents or frustrates the accomplishment of the federal objective or compliance with both is impossible. Geier v. American Honda Motor Co., 529 U.S. 861, 873, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). While express pre-emption and field pre-emption are found by reference to congressional intent, conflict pre-emption does not depend upon an expression of legislative intent to pre-empt. Even where a federal law includes a stated measure of express pre-emption, a court must look beyond it to determine the full pre-emptive effect of the law. The inclusion of express pre-emption provisions (7 U.S.C. § 136v(b)), here limited to labeling and packaging requirements, does not preclude implied conflict pre-emption. Freightliner Corp. v. Myrick, 514 U.S. 280, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995). Likewise, the presence of a saving clause conditioning the scope of express pre-emption does not foreclose the possibility of conflict pre-emption. Geier, 529 U.S. at 869, 120 S.Ct. 1913. Even the combination of both express pre-emption and a savings clause imposes no special burden to prevent the operation of ordinary conflict pre-emption. Id. at 870, 120 S.Ct. 1913.

Dow posits a detailed recitation of federal statutory and regulatory provisions in support of its fundamental assertion that EPA, through its authority under FIFRA, has expressly found Dursban HF to be reasonably safe by approval of its registration application and label. Dow lists the extensive data and studies an applicant must submit to EPA in the registration process, upon which EPA relies in deciding to register the pesticide and approve the label which must accompany the product. According to EPA's regulations, once it registers the product and approves its label, the "registrant may distribute or sell a registered product with the composition, packaging, and labeling currently approved by the Agency." 40 C.F.R. § 152.130 (2001).3 Dow points out that it provided EPA with the precise composition for Dursban HF, along with toxicological and other scientific data required by EPA, and that EPA registered the product and approved its label, allowing the product to be sold. Relying on several provisions of the Act (see 7 U.S.C. § 136a(c)(5) and § 136(bb)), Dow argues EPA's approval precludes any state law tort claim that the product is unreasonably dangerous. According to Dow, EPA has expressly concluded that this product produces no unreasonable adverse effects when used in conformity with the label.

While conflict pre-emption analysis does not depend upon an express statement of congressional intent to pre-empt, congressional purpose defines the scope and nature of federal statutory or regulatory provisions against which the state law must be measured. To determine whether a conflict exists, a court must first consider the purpose of the federal law, as the Supreme Court has consistently done in the leading cases on this issue. In Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984), the Court refused to apply conflict pre-emption to ban state tort law claims, citing certain congressional amendments to the federal regulation of nuclear energy safety. These changes in the statutory scheme implied congressional awareness of continuing state law claims against the regulated industry. Despite extensive federal regulation of nuclear energy through the Nuclear Regulatory Commission, the Court found that state tort damages were nonetheless available:

No doubt there is tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a state may nevertheless award damages based on its own law of liability. But as we understand what was done over the years in the legislation concerning nuclear energy, Congress intended to stand by both concepts and to tolerate whatever tension where was between them. We can do no less. It may be that the award of damages based on the state law of negligence or strict liability is regulatory in the sense that a nuclear plant will be threatened with damages liability if it does not conform to state standards, but that regulatory consequence was something that Congress was quite willing to accept.

Id. at 256, 104 S.Ct. 615. When the Court considered FIFRA in Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991), and rejected field pre-emption, the Court also rejected conflict pre-emption of local government regulations by focusing on the statute's goals, noting that FIFRA implies a partnership among federal, state and local governments. The Court stated...

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