M & H Enterprises v. Tri-State Delta Chemicals, Inc.

Decision Date03 December 1998
Docket NumberTRI-STATE,No. 22097,22097
Citation984 S.W.2d 175
PartiesProd.Liab.Rep. (CCH) P 15,420 M & H ENTERPRISES, Gary Hogan, and John Maddox, Plaintiffs-Appellants, v.DELTA CHEMICALS, INC., and Bernardo Chemicals, Ltd., Defendants-Respondents.
CourtMissouri Court of Appeals

Kenneth L. Dement, Jr., Sikeston, for Appellant.

Thomas F. Fisher, Kansas City, Wendell W. Crow, Kennett, Elizabeth R. Jones, Denver, CO, Gary W. Callahan, Greeley, CO, for Respondent Tri-State Delta Chemicals.

Timothy A. Ryan, III, Memphis, TN, J. Michael Mower, Kennett, for Bernardo Chemicals, Ltd.

SHRUM, Presiding Judge.

M & H Enterprises, Gary Hogan, and John Maddox ("Appellants") appeal from the trial court's order granting the Respondents' motions for summary judgment. Appellants sought damages after a herbicide they had used failed to control weevils in a stored pea crop. The trial court entered both summary judgments on the basis that Appellants' claims were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136 et seq. We affirm in part; we reverse and remand in part.


In 1992, Appellants, who were brokers and growers of agricultural produce, purchased an insecticide known as Gastoxin Sachets ("Gastoxin") from Respondent Tri-State Delta Chemicals, Inc. ("Tri-State"). Respondent Bernardo Chemicals, Ltd. ("Bernardo"), 1 distributed the Gastoxin to Tri-State. Appellants purchased the Gastoxin intending to use it to protect a large quantity (approximately 900,000 pounds) of purple hull peas from a weevil infestation. At all relevant times, the labeling and manual that accompanied the Gastoxin were registered with and approved by the U.S. Environmental Protection Agency ("EPA") pursuant to FIFRA. The Gastoxin's manual recited that the product was "registered with the [EPA] as an aid in the control of ... weevil[s]" and was "registered with the [EPA] for the fumigation of ... seed and pod vegetables."

Appellants claim that, although they used the Gastoxin in accordance with the product's instructions, the product failed to protect their purple hull peas from weevils, and, as a result, they suffered substantial financial damage ($300,000). Seeking to recover their damages, Appellants filed a three-count amended petition naming Tri-State (in Counts I and II) and Bernardo (in Count III) as defendants. In Count I, Appellants alleged that Tri-State was liable for breach of express warranty and breach of implied warranty of fitness based on the representations contained in Gastoxin's labeling, packaging, and/or manual. 2 In Count II, Appellants alleged that Tri-State was liable for negligent misrepresentation for representations made by Tri-State's employees regarding the Gastoxin's effectiveness in general and as compared to a similar product, Phostoxin. In Count III, Appellants alleged that Bernardo was liable for breach of express warranty and breach of implied warranty of fitness for a particular purpose, again apparently based on the product's labeling, packaging, and/or manual. Both Tri-State and Bernardo moved for summary judgment on the grounds that Appellants' claims were preempted by FIFRA. The trial court granted summary judgment on all three counts. This appeal followed.

Preemptive Effect of FIFRA in Missouri

Preliminarily, we examine FIFRA and consider its preemptive effect. FIFRA requires pesticide manufacturers, among others, to register pesticides with and submit all proposed labeling for pesticides to the U.S. Environmental Protection Agency ("EPA") for its approval before the manufacturers may distribute the product. FIFRA defines the terms "label" and "labeling" as follows:

"(1) Label

"The term 'label' means the written, printed, or graphic matter on, or attached to, the pesticide or device or any of its containers or wrappers.

"(2) Labeling

"The term 'labeling' means all labels and all other written, printed, or graphic matter--

"(A) accompanying the pesticide or device at any time; or

"(B) to which reference is made on the label or in literature accompanying the pesticide or device...."

7 U.S.C. § 136(p). Proposed labeling for a pesticide must include, among other things, pertinent safety information, usage instructions, and information regarding the product's "target" pests and sites of application (e.g., crops, animals, etc.). See 7 U.S.C. §§ 136(p), (q), and 136a(c)(1)(C); 40 C.F.R. §§ 152.50 and 156.10(a), (h), and (i). FIFRA's "preemptive" language reads:

"(a) In general

"A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.

"(b) Uniformity

"Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter."

7 U.S.C. § 136v. Many courts, including this one, have concluded that this language preempts state common law claims predicated on a product's EPA-approved labeling because an award of damages for such claims would effectively impose additional or different labeling or packaging requirements on the manufacturer. See Yowell v. Chevron Chemical Co., 836 S.W.2d 62, 65-66 (Mo.App.1992).

In Yowell, the plaintiffs brought a wrongful death suit against Chevron Chemical Company ("Chevron") alleging that the decedent's use of two pesticides manufactured by Chevron caused his death. Id. at 62. The plaintiffs' suit was "based on alternative theories of strict liability and negligence," and, in each count, plaintiffs alleged that "Chevron 'did not give an adequate warning of the dangers.' " Id. The trial court, believing the plaintiffs' claims were preempted by FIFRA, granted Chevron's motion for summary judgment. Id. at 62-63. This court upheld the trial court's entry of summary judgment for Chevron, reasoning that causes of action predicated "solely on alleged defective labeling" are preempted by FIFRA. Id. at 63.

Point I: Does FIFRA Preempt Appellants' Breach of Warranty Claims?

Appellants' first point relied on contains four arguments, each maintaining that the trial court erred in finding that FIFRA preempted their breach of express and implied warranty claims as pled in Counts I and III. The first three of Appellants arguments under Point I appear to challenge Tri-State's and Bernardo's right to judgment as a matter of law. We believe this court's decision in Yowell controls as to Counts I and III. Accordingly, the trial court did not err in ruling that Respondents were entitled to judgment as a matter of law on those counts. 3 Nonetheless, we address each of Appellants' arguments.

In their first argument, Appellants attempt to escape the preemptive effect of FIFRA by looking to the Act's purpose, which they assert "is to regulate pesticide labeling to insure product safety." Appellants characterize their action as one dealing with product efficacy and not product safety. This distinction is important, Appellants contend, because FIFRA preempts only those defective labeling cases involving product safety. It appears to us that the sole purpose of this argument is to distinguish the issues involved in this case from those disposed of by this court in Yowell. Appellants contend that Yowell involved only issues of product safety.

To support their argument, Appellants cite authorities generally stating that FIFRA's purpose is to promote safety. See, e.g., Merrell v. Thomas, 608 F.Supp. 644 (D.Or.1985), aff'd 807 F.2d 776 (9th Cir.1986). However, Appellants fail to cite a single case in which a court has held that FIFRA's preemptive effect is limited to cases involving product safety. "Failure to cite relevant authority where available, or to set forth why such authority is not available, constitutes an abandonment of the point under Rule 84.04(d)." Williams v. Belgrade State Bank, 953 S.W.2d 187, 190 (Mo.App.1997). Furthermore, Respondents cite cases from other jurisdictions in which courts have held that FIFRA preempts label-based claims of product ineffectiveness much like the one now before us. See, e.g., Bruce v. ICI Americas, Inc., 933 F.Supp. 781 (S.D.Iowa 1996) (holding that label-based claims for damage to corn crop resulting from pesticide's failure to control corn rootworms were preempted by FIFRA); Trinity Mountain Seed Co. v. MSD Agvet, 844 F.Supp. 597 (D.Idaho 1994) (holding that label-based claims for damage to potato crop resulting from failure of fungicide to control fungus and dry rot are preempted by FIFRA). Because Appellants do not support their argument with any relevant authority, because we find no authority that supports their argument, and because courts in other jurisdictions have held that FIFRA preempts "efficacy" claims as well as "safety" claims, we reject Appellants' first argument.

In their second argument, Appellants contend that their claims are not preempted by FIFRA because "Congress did not intend to preempt state law damage claims." Their argument rests primarily on the fact that Congress did not mention state common law claims in 7 U.S.C. § 136v(b). They assert that "[h]ad Congress intended to preempt state common law remedies, it would have done so in simple and unambiguous language." The problem with this contention is that the majority in Yowell rejected this same argument when it was proffered by the dissent in that case. Yowell, 836 S.W.2d at 67.

Appellants attempt to avoid Yowell's adverse holding by citing Connelly v. Iolab Corp., 927 S.W.2d 848 (Mo.1996). There, our supreme court held that a different federal statute, the Medical Devices Amendment of 1976 ("MDA"), 21 U.S.C. § 360c et seq., did not preempt the state common law claims asserted by the plaintiffs. Id. at 855. The statutory language on which the...

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