Kennan v. Dow Chemical Co., 86-69-Civ-J-14.

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Citation717 F. Supp. 799
Docket NumberNo. 86-69-Civ-J-14.,86-69-Civ-J-14.
PartiesEdith KENNAN, as personal representative of George Kennan, Deceased, Plaintiff, v. DOW CHEMICAL COMPANY, et al., Defendants.
Decision Date20 July 1989

Wayne Hogan, Jacksonville, Fla., for plaintiff.

Charles C. Howell, III, William R. Swain, Jeffrey D. Dunn, Don H. Lester, Frank Hession, Victor M. Halback, Jr., Jacksonville, Fla., Joseph J. Ortego, Uniondale, N.Y., and Peter D. Braun, Buffalo, N.Y., for defendants.


SUSAN H. BLACK, District Judge.

This case came on to be heard on Reichold Chemicals, Inc.'s Motion For Summary Judgment, filed on October 21, 1988. The remaining defendants adopted Reichold's motion. Plaintiff filed a response in opposition to the motion on November 14, 1988. The Court heard oral argument on December 2, 1988. At the hearing, the Court ordered the parties to file various supplemental memoranda. Reichold filed a supplemental memorandum on December 16, 1988. Plaintiff filed a response to the supplemental memorandum on January 6, 1989. Reichold filed a reply to plaintiff's supplemental memorandum on January 18, 1989.

I. Procedural History

Plaintiff filed the original Complaint in this case on December 18, 1985, in the Circuit Court for Duval County, Florida. The original Complaint named Dow Chemical Company, Monsanto Chemical Company, Reichold Chemicals, Inc., and Vulcan Materials Company. The defendants jointly removed the case to this Court on January 30, 1986, pursuant to the Court's diversity jurisdiction. Subsequently, the various defendants filed answers to the Complaint.

On November 25, 1986, this Court entered an Order For Limiting Time For Completion Of Discovery And Setting Pretrial Conference. That order cut off discovery on March 31, 1987, set a deadline for filing motions to add parties and for summary judgment on April 5, 1987, and set a pretrial conference for May 5, 1987.

On April 3, 1987, plaintiff filed a motion to add Idacon and Forshaw Industries as defendants. On April 6, 1987, defendant Vulcan Materials filed a motion requesting additional time in which to file a motion for summary judgment. On April 9, 1987, this Court filed an Amended Order For Pretrial Conference and Limiting Time For Completion Of Discovery. The Court extended the discovery deadline to May 30, 1987, set a deadline on which motions were to be filed for June 22, 1987, and set the pretrial conference for July 22, 1987.

On May 5, 1987, the Magistrate granted plaintiff's motion to add parties. Pursuant to that order, plaintiff on June 17, 1987, filed the Amended Complaint at bar. The defendants subsequently filed answers to the Amended Complaint. On June 18 and 19, 1987, respectively, Defendants Dow Chemical and Monsanto moved to continue the pretrial conference. The Court granted the motion on June 23, 1987. The Court extended discovery through September 30, 1987, required that motions for summary judgment be filed no later than October 12, 1987, and that the parties attend a pretrial conference on November 12, 1987. On September 10, 1987, the Court set the case for trial during the trial term commencing on December 28, 1987.

Defendants Idacon, Forshaw, Dow Chemical Co., and Monsanto filed motions for continuance of trial. Defendants Idacon and Forshaw argued that because they were joined late in the litigation that they did not have adequate time to conduct discovery. Defendants Dow and Monsanto argued that they needed more time to conduct discovery so that they could properly prepare a motion for summary judgment. The Court denied the motions for continuance on November 2, 1987, with leave for the defendants to renew their motions and present oral argument in support of their motions at the pretrial conference.

At the pretrial conference on November 12, 1987, it appeared that plaintiff had failed to provide the defendants with certain evidence that plaintiff intended to introduce at trial. In addition, plaintiff failed to list the evidence in the pretrial stipulation filed by the parties on November 6, 1987. The Court ordered plaintiff to provide the evidence to the defendants and for the defendants to then file motions with specific objections to the evidence. The plaintiff provided the defendants with the evidence, and the defendants subsequently filed motions to strike the evidence arguing that they were prejudiced by plaintiff's late disclosure and their inability to conduct discovery.

On December 18, 1987, the Court granted defendants' motions to exclude any evidence not specifically listed by plaintiff on the pretrial stipulation filed on November 6, 1987. The Court gave plaintiff leave to file a motion for continuance of trial with the understanding that such a motion would be automatically granted and that discovery would be reopened concerning the aforementioned evidence. Plaintiff filed a motion for continuance on December 21, 1987. The Court granted plaintiff's motion for continuance on December 23, 1987, and removed the case from the trial calendar. The Court also extended discovery through February 1, 1988.

The defendants each filed motions for summary judgment on the issue of causation in May and June, 1988. Plaintiff filed a response on June 16, 1988. On September 29, 1988, the Court filed an opinion and order denying the motions for summary judgment.

On September 19, 1988, the Court once again set the case for trial during the trial term commencing on February 27, 1989. Thereafter, defendant Reichold filed the instant motion for summary judgment on October 21, 1988. The other defendants adopted the motion, the plaintiff responded, the Court heard oral argument, and the parties filed supplemental memoranda.2

II. Summary Of The Amended Complaint

The Amended Complaint filed on June 17, 1987, alleges that George Kennan hereinafter "decedent" was exposed to pentachlorophenol hereinafter "PCP", a chemical contained in products manufactured by the defendants, while working for Koppers Company in Alachua County, Florida, beginning in 1961 and continuing through the 1970's and 1980's. Plaintiff alleges that due to the decedent's exposure to PCP, the decedent contracted a blood disease, suffered severe complications, and died.

Count I of the Amended Complaint alleges a claim for negligence in that the defendants: 1) failed to warn the decedent of the dangers associated with products containing PCP and highly toxic contaminants including dioxin, Amended Complaint ¶¶ 8(c) & 8(d); 2) continued to design, manufacture, and market products containing PCP after it became reasonably feasible to design comparable products not containing the chemical, Amended Complaint ¶ 8(b); and 3) failed to take reasonable steps to remove highly toxic contaminants from products containing PCP. Amended Complaint ¶ 8(c).

Count II of the Amended Complaint alleges a claim for strict products liability in that the products produced by the defendants: 1) did not have a reasonably adequate warning of the potential harm that might result from exposure to the products containing PCP, an adequate warning of the presence of highly toxic contaminants, including dioxins, or instructions for working in the vicinity of PCP, Amended Complaint ¶¶ 14(a) & 14(d); 2) contained PCP after it became reasonably feasible to design, manufacture and market reasonably comparable products not containing PCP; and 3) carried with them highly toxic contaminants including dioxins.

III. Defendants' Motion For Summary Judgment

Defendants argue that neither count of the Amended Complaint states a cause of action because of federal preemption of state tort law. In particular, the defendants argue that a damage award under either count would have the effect of regulating insecticide labels contrary to regulations promulgated by the Environmental Protection Agency hereinafter "EPA" pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act, hereinafter "FIFRA", 7 U.S.C. § 136, et seq. Defendants argue that plaintiff's negligence count is wholly based on a theory that an inadequate label constituted negligent failure to warn, and that damage award based on state negligence law would cause the defendants to change their labels in contravention of FIFRA. Similarly, the defendants argue that the strict liability count is based on a theory that an inadequate label rendered the defendants' products that contained PCP defective and unreasonably dangerous. A damage award based on strict liability, defendants argue, would also contravene FIFRA.

Plaintiff responds that preemption is an affirmative defense, and that the defendants' failure to plead preemption in their answers to the Amended Complaint constitutes waiver of the defense.3 Plaintiff also argues that defendants' assertion of the defense at this late date will cause her prejudice. Plaintiff further responds that because the decedent's exposure to PCP occurred prior to the promulgation of FIFRA's labeling provisions, the cause of action could not be preempted. Finally, plaintiff states that there is no preemption because state law is not in conflict with federal law.

A. Standard On Summary Judgment

A district court's review of a case on a motion for summary judgment is governed by Fed.R.Civ.P. 56. A moving party discharges its burden on a motion for summary judgment by "showing" or "pointing out" to the district court that there is an absence of evidence to support the nonmoving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Fed.R.Civ.P. 56 permits the moving party to discharge its burden with or without supporting affidavits and to move for summary judgment on the case as a whole or on any claim. 477 U.S. at 325, 106 S.Ct. at 2553. When a moving party has so discharged its burden, the nonmoving party must then "go beyond the pleadings and by her own affidavits, or by the `depositions,...

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