Macias v. State of California
| Decision Date | 04 March 1994 |
| Docket Number | No. B071479,B071479 |
| Citation | 22 Cal.App.4th 1788,28 Cal.Rptr.2d 796 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 22 Cal.App.4th 1788, 28 Cal.App.4th 127, 33 Cal.App.4th 808 22 Cal.App.4th 1788, 28 Cal.App.4th 127, 33 Cal.App.4th 808, 62 USLW 2596, Prod.Liab.Rep. (CCH) P 13,838 Alfonso MACIAS et al., Plaintiffs and Appellants, v. The STATE of California et al., Defendants and Respondents. |
Litt, Marquez & Fajardo and Barrett S. Litt and Anne Richardson, Los Angeles, for plaintiffs and appellants.
Daniel E. Lungren, Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., Walter
Wunderlich, Sr. Asst. Atty. Gen. and Charles W. Getz, IV, Supervising Deputy Atty. Gen., for amicus State of California.
Haight, Brown & Bonesteel and Roy G. Weatherup and Mary Ann Murphy, Santa Monica, for defendant and respondent American Cyanamid Co.
Munger, Tolles & Olson and Charles D. Siegal, Allison B. Stein and Mark A. Merva, Los Angeles, for respondents Platte Chemical Co. and United Agr. Products.
Plaintiffs Alfonso and Sophia Macias and their son, Juan Macias (by and through his guardian ad litem) appeal an order and summary judgment in favor of defendants American Cyanamid Company ("Cyanamid") and Platte Chemical Company ("Platte") and United Agri Products ("United") (collectively the "Manufacturers"). 1 The Maciases sought damages and injunctive relief by reason of injuries suffered by 14 year old Juan. Juan sustained permanent optic nerve damage causing legal blindness as a direct result of the aerial helicopter spraying of the malathion mixed with bait upon him. 2 This spraying of insecticide over Los Angeles by the State of California was in response to the Mediterranean Fruit Fly (Medfly) infestation. 3
Cyanamid, Platte, and United were the manufacturers and/or distributors of the malathion used in the 1989-90 spray program. They were parties most knowledgeable about the risks and hazards of the toxic substance. The Maciases' product liability claim against the manufacturer defendants alleged a negligent failure to warn.
Specifically, the Second Amended Complaint alleges that the manufacturers and distributors knew that (1) their malathion was to be used in urban spraying, with direct exposure to the urban population of Los Angeles; (2) the government officials involved were misrepresenting the dangers involved; (3) the misrepresentations included the claim that there was no health hazard; there was a failure to warn those subject to the spray they should avoid contact with the spray and should immediately and vigorously wash and call a doctor right away if they did have contact; and (4) the "warnings" given were contrary to those which were placed on the manufacturer's label under Environmental Protection Agency (EPA) supervision for urban sprayings; they were contrary to what was called for by the EPA's approval of the State's request to engage in urban sprayings and they were unreasonable in light of the risks involved and the precautions needed.
The Maciases do not allege the manufacturer's label was inadequate. They allege that after the manufacturers learned the governmental entities to whom they had sold the malathion were giving false, misleading and inadequate warnings, the manufacturers had an independent duty to the public to warn of the risks, or at a minimum, to refuse to sell the malathion without assurances that the proper warnings would be provided.
A "Special Local Need" had been issued by EPA to allow the State to spray the malathion/bait mixture. It contained a number of requirements, among them, to give notice to the public of the warnings on the product label. ("The public shall be given prior notification....
.... Such information shall include the date treatment is to be made, material to be made, and the precautions listed on the product label"). (Emphasis added.)
That "Special Local Need", for which registration was obtained by the California Department of Food and Agriculture from the EPA, set out the requirements for the Malathion spraying program at issue here. Representatives of Cyanamid, Laura Whatley, and of Platte, Bob Ehn, among others, were specifically listed as receiving copies of that Special Local Need.
The precautions listed on the EPA approved label expressly stated that the product was harmful if swallowed, inhaled, or absorbed through the skin, and that certain precautions, such as washing vigorously and consulting a physician, should be taken in the event of exposure to the malathion. The complaint alleged the governmental defendants were supposed to have provided these warnings to the public but failed to do so, and that the manufacturer defendants were aware of these facts.
The information in fact given, it is alleged, was in clear violation of federal guidelines for labeling, pursuant to 40 C.F.R. section 156.10(a)(5), which prohibits representations that the product is safe or harmless, or words to that effect.
Specifically, that section provides:
The amended complaint alleges: Defendants were aware that the actual notice sent out to the public by the State violated all these federal standards for labeling of a pesticide. The false statement issued included: "NO HEALTH HAZARD," "no danger to pregnant women," and "one of the safest insecticides."
In June of 1990, an EPA memo recommended against granting an emergency exemption for the use of malathion to the California Department of Food and Agriculture in Southern California stating:
"[U]ncertainties exist at this time as to the likelihood that malathion at levels being applied in the aerial medfly eradication program will induce damage to the visual system analogous to that reported to have resulted from organophosphate aerial spraying in Japan [resulting in serious damage to the visual system]."
The EPA recommended against granting an exemption until further studies on optical effects had been conducted. (Id.)
It is further alleged, in 1991 the California Department of Health Services (DHS) released a "Health Risk Assessment of Aerial Application of Malathion." In its conclusions and recommendations, the DHS recommended that the use of aerial malathion-bait applications in urban areas for agricultural pest eradication be reconsidered. Specifically, the DHS emphasized the need for precaution for a sensitive subpopulation.
After Cyanamid's various motions were filed, the Maciases dropped all claims against the manufacturers except for strict liability and negligence for failure to warn.
On January 29, 1992, the judge issued an "Order on Submitted Matter," ruling the Maciases' claims against American Cyanamid were not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") to the extent the claims relied on a manufacturer's state-law duty to warn the public, "upon learning that a pesticide it has manufactured is being used, or is about to be used, in a manner not in accordance with the warnings on the EPA-approved labeling."
(Italics added.) The Court expressly left open the question of whether such a state law duty existed, but ruled, if it did, such a claim would not be preempted by FIFRA
At the same hearing the trial court found the Macias' claim for Cyanamid labeling was barred by FIFRA (federal) preemption.
On February 5, 1992, the trial court issued a "Further Ruling on Submitted Matter," dividing up the remaining state law question into two subparts:
First, did American Cyanamid bear some duty to ensure that the warnings provided by the FIFRA material were transmitted downstream to potentially affected bystanders, regardless of any notice of inadequate warnings to American Cyanamid?
Second, assuming American Cyanamid obtained actual notice that a downstream user was failing to provide proper warnings, did the acquisition of such actual notice impose a duty upon American Cyanamid to attempt to communicate proper warnings to down stream bystanders?
The court granted summary adjudication declaring American Cyanamid did not have a duty to provide warnings, assuming lack of actual notice, and "without regard to its state of knowledge or its participation in the spraying program." However, the court explicitly left open the remaining question of "whether a manufacturer, upon obtaining actual knowledge that its product was being used without proper warnings, incurs a duty of some scope to take action of some type to counteract the lack of proper warning, presumably by providing information or warnings of some type to downstream users or potential bystanders."
The court then ordered the parties to brief this final "duty to warn" issue. The parties briefed the issue. The State of California filed a statement in support of Cyanamid's position regarding warning claims. The State took this position: "Under Food & Agricultural Code section 5029, any duty to warn beyond that imposed by FIFRA does not fall on the vendors of the State of California, but upon the State of California and more specifically, the agency of the State subject to that section of the law." "The State and the State alone should defend [the Medfly Eradication Program] and its implementation as the responsible party...." 4
On May 5, 1993, the...
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Macias v. State
...v. STATE of California et al., Respondents. No. S039245. Supreme Court of California, In Bank. June 21, 1994. Prior report: Cal.App., 28 Cal.Rptr.2d 796. Petitions for review LUCAS, C.J., and KENNARD, ARABIAN, BAXTER, GEORGE and WERDEGAR, JJ., concur. ...