Jenkins v. Amchem Products, Inc.

• Decision Date: 16 December 1994
• Docket Number: No. 71406,71406
• Citation: 886 P.2d 869,256 Kan. 602
• Parties: , 40 ERC 1032, Prod.Liab.Rep. (CCH) P 14,153 Gary W. JENKINS, Appellant/Cross-Appellee, v. AMCHEM PRODUCTS, INC.; Union Carbide Agricultural Products Company; Rhone Poulenc Ag Company; Platte Chemical Company; and Farmland Industries, Inc., Appellees/Cross-Appellants.
• Court: Kansas Supreme Court

Page 869

886 P.2d 869

256 Kan. 602, 40 ERC 1032, Prod.Liab.Rep.

(CCH) P 14,153

Gary W. JENKINS, Appellant/Cross-Appellee, v. AMCHEM PRODUCTS, INC.; Union Carbide Agricultural Products Company; Rhone Poulenc Ag Company; Platte Chemical Company; and Farmland Industries, Inc. Appellees/Cross-Appellants.

No. 71406.

Supreme Court of Kansas.

Dec. 16, 1994.

Syllabus by the Court

1. Congress' intent to preempt state law may be explicitly stated in a statute's language or implicitly contained in its structure and purpose. In the absence of an express congressional command, state law is preempted if that law actually conflicts with federal law or if federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it.

2. Federal, rather than state, law governs whether and to what extent the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et seq. (1988), preempts a state cause of action arising out of a failure to warn.

3. To the extent that state law actions for damages depend upon a showing that a pesticide manufacturer's labeling or packaging failed to meet a standard in addition to or different from Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et seq. (1988), requirements, § 136v preempts the claims.

4. A common-law tort claim which challenges the labeling or packaging of products governed by the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et seq. (1988), constitutes a "requirement for labeling or packaging" barred by § 136v(b) notwithstanding the general grant of power in § 136v(a).

5. Any claims that point-of-sale signs, consumer notices, or other informational materials failed adequately to warn a plaintiff necessarily challenge the adequacy of the warnings provided on the product's labeling or packaging. A plaintiff may not interfere with the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et seq. (1988), scheme by bringing a common-law action alleging the inadequacy of, for example, point-of-sale signs. Because claims challenging the adequacy of warnings on materials other than the label or package of a product necessarily imply that the labeling and packaging failed to warn the user, these claims are also preempted by the Act. If a pesticide manufacturer places EPA-approved warnings on the label and packaging of its product, its duty to warn is satisfied, and the adequate warning issue ends.

6. One test for determining whether a claim is preempted is 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. If in seeking to avoid liability the manufacturer would alter the label of its product, a state law damages action imposing liability would impose a requirement for labeling beyond Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et seq. (1988) requirements. Such an action is preempted by § 136v(b). However, if in seeking to avoid liability the manufacturer would alter the product itself, rather than the product's label, a state law damages action imposing liability would impose no requirement for labeling beyond the Act requirements and § 136v(b) would not preempt such an action.

7. The United States Supreme Court has not recognized a quid pro quo requirement to the Due Process Clause. The Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common-law, to attain a permissible legislative object, despite the fact that otherwise settled expectations may be upset thereby. Indeed, statutes limiting liability are relatively commonplace and have consistently been enforced by the courts.

8. A plaintiff, to present a prima facie strict liability case, must produce proof of three elements: (1) The injury resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time it left the defendant's control. The defect may be in the product's preparation, in the product's container or packaging, or in the instructions or warnings necessary for the product's safe use. These are commonly referred to as "design defects," "manufacturing defects," and "warning defects."

9. In a products liability action, the fact that a defendant manufacturer does not claim its products were unavoidably unsafe does not relieve a plaintiff from the burden of proving that defendant's products were defective.

Mark A. Furney, Overland Park, argued the cause, and Brenden W. Webb, Overland Park, was with him on the briefs, for appellant/cross-appellee.

Stephen W. Jacobson, Kansas City, MO, argued the cause, and Monte Vines and Donald W. Bostwick, of Adams, Jones, Robinson & Malone, Wichita, were with him on the briefs, for appellees/cross-appellants.

Patti A. Goldman, of Sierra Club Legal Defense Fund, Seattle, WA, Brian Wolfman, of Public Citizen Litigation Group, Arthur H. Bryant and Adele P. Kimmel, of Trial Lawyers for Public Justice, Washington, DC and Gene E. Schroer, of Schroer, Rice, P.A., Topeka, were on the amici curiae brief, for Trial Lawyers for Public Justice and Public Citizen.

ABBOTT, Justice:

Plaintiff Gary Jenkins instituted this products liability action against defendants Amchem Products, Inc., Union Carbide Agricultural Products Company, Rhone Poulenc Ag Company, Platte Chemical Company, and Farmland Industries, Inc., alleging that his long-term use of the herbicide chemical commonly known as 2,4-D caused or contributed to his development of non-Hodgkin's lymphoma. The trial court ruled that if plaintiff proved defendants' products cause cancer, plaintiff would have established a prima facie strict liability claim without having to prove a more specific defect. However, the trial court granted summary judgment to defendants and determined that plaintiff's failure to warn and strict liability claims were preempted by the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. (1988). Plaintiff appeals and defendants cross-appeal.

Gary Jenkins has farmed and ranched for many years. During this time, he was exposed to chlorophenoxy herbicides, which have as an active ingredient the chemical commonly known as 2,4-D, manufactured or produced by the defendants. Chlorophenoxy herbicides are used to kill broad leaf weeds in fields and brush in pastures. In December 1990, plaintiff was diagnosed with non-Hodgkin's lymphoma.

Plaintiff instituted this action in the trial court, alleging that the defendants' products were defective and unreasonably dangerous and that the products either caused or were substantial factors in causing plaintiff's disease. Plaintiff's expert witness stated that the defendants' 2,4-D herbicide products were contaminated with toxic substances, including dioxin. Plaintiff's expert opined it was more probable than not that plaintiff's long-term exposure to 2,4-D significantly contributed to the causation of his disease, but the expert could not state "that the failure to manufacture 2,4-D, free of toxic contaminants ... is what caused Gary Jenkins' non-Hodgkin's lymphoma." The pretrial order set forth the following theories of liability: (1) negligence; (2) failure to adequately test the product to make sure it was safe and/or free from harmful contaminants; (3) failure to warn or properly communicate to plaintiff that long-term exposure to the products greatly increased his risk of developing non-Hodgkin's lymphoma; and (4) strict liability, as stated in PIK Civ.2d 13.21 (1993 Supp.), because chlorophenoxy herbicides were defective and unreasonably dangerous in that the products were dangerous to an extent beyond that which would be contemplated by the ordinary consumer and were defective because they were incapable of being produced free from harmful contaminants.

The defendants filed a motion to dismiss for failure to state a claim upon which relief could be granted, arguing that plaintiff's claims based on inadequate warnings were preempted by FIFRA. FIFRA covers pesticides, insecticides, slimicides, herbicides (2,4-D is a herbicide), and other chemicals. The court granted the motion to dismiss "as to [plaintiff's] failure to warn theory based upon labeling & packaging only due to pre-emption" by FIFRA.

The defendants also sought summary judgment, making the same argument as to plaintiff's entire cause of action for failure to warn. The trial court granted partial summary judgment, holding that the preemption extended to plaintiff's claims based on failure to warn by advertisements or other generalized means; by press releases or advisory circulars; by appropriate store displays, shelf placards, or counter signs; by limiting sale of the product so the sale does not exceed the scope of potential buyers who would not be adequately warned by labels on the product; and by disseminating any other type of warning which did not per se require that it be affixed as a label or to the package itself. The trial court concluded:

"[R]eferring to plaintiff's four legal theories as stated in the pretrial order, this ruling restricts theory 1 [negligence], leaves theory 2 [failure to adequately test] untouched, eliminates theory 3 [failure to warn], and restricts theory 4 [strict liability] to the extent it is based upon a failure to adequately warn or instruct. The court accepts plaintiff's explanation that his theory 4 includes strict liability based upon failure to warn/instruct, even though that basis may not appear from the express language in the pretrial order, and therefore finds it unnecessary to amend the pretrial order to make that clear."

Plaintiff then filed a "motion for pretrial determination of question of law, and motion to reconsider court's ruling granting summary judgment on failure to warn claim." The plaintiff set forth this question:

"Whether plain...