McAlpine v. Rhone-Poulenc Ag. Co.

Decision Date29 October 1997
Docket NumberRHONE-POULENC,No. 96-531,96-531
Citation285 Mont. 224,947 P.2d 474
Parties, Prod.Liab.Rep. (CCH) P 15,106 Thomas P. McALPINE and Ruby McAlpine, Husband and Wife, and Simmes Brothers, a Partnership, Plaintiffs and Appellants, v.AG. CO. and Ben Taylor, Inc., a Montana Corporation, Defendants and Respondents.
CourtMontana Supreme Court

Dan L. Spoon, John R. Gordon and Robert T. Bell (argued); Reep, Spoon Gordon, Missoula, for Plaintiffs and Appellants.

William O. Bronson (argued); James, Gray, Bronson & Swanberg, Great Falls, for Rhone-Poulenc Ag Company.

Neil E. Ugrin and Roger T. Witt (argued); Ugrin, Alexander, Zadick & Higgins, Great Falls, for Ben Taylor, Inc.

LEAPART, Justice.

Appellants Thomas P. and Ruby McAlpine, husband and wife, and Simmes Brothers, a partnership, appeal the order of the Ninth Judicial District Court, granting summary judgment in favor of Respondents Rhone-Poulenc Ag. Company (Rhone-Poulenc) and Ben Taylor, Inc. (Ben Taylor) and dismissing their amended complaint with prejudice. We affirm in part, reverse in part, and remand.

We address whether the Appellants' claims of negligence, breach of warranty, and strict liability are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

Factual and Procedural Background

The Appellants are farmers near Sunburst, Montana. Rhone-Poulenc and Ben Taylor are the manufacturer and distributor, respectively, of a herbicide called "Weedone LV6." In May 1990, the Appellants mixed Weedone LV6 according to the instructions provided by Rhone-Poulenc and Ben Taylor and applied it to their barley and spring wheat. For several weeks after Appellants applied the herbicide to their crops, the nighttime temperatures in Sunburst were near freezing. Soon after, Appellants discovered that their crops had been severely damaged. Appellants were informed by experts from Montana State University and the Montana Department of Agriculture that cool or cold temperatures following the application of Weedone LV6 can cause crop damage.

In July 1992, Appellants filed a complaint stating claims for negligence, breach of warranty, and strict liability. In December 1992, Appellants amended their complaint to plead damages with more specificity. Appellants' amended complaint alleged that Rhone-Poulenc and Ben Taylor were negligent in manufacturing, advertising, and selling Weedone LV6, a product they knew or should have known would be applied in cool, spring temperatures typical in Montana and, thus, a product that would cause crop damage even when applied according to its own instructions. They also alleged that Rhone-Poulenc and Ben Taylor negligently failed to warn them of the damage that could result from Weedone LV6.

Appellants' claims for breach of express and implied warranties are based on representations allegedly made by an employee of Ben Taylor that, if applied according to its directions, Weedone LV6 would control weeds. Appellants assert that Rhone-Poulenc and Ben Taylor carelessly and negligently designed, manufactured, sold and delivered a deficient product, which caused their crops to be damaged. Under strict liability, Appellants claim that Weedone LV6's performance in cold temperatures shows it is an unreasonably dangerous product.

Both Rhone-Poulenc and Ben Taylor filed motions for summary judgment, arguing that FIFRA expressly preempts states from imposing independent labeling requirements on pesticides and that because all of Appellants' claims are based on deficiencies in Weedone LV6's label, they are barred by FIFRA. The District Court granted summary judgment and dismissed Appellants' amended complaint with prejudice. The court held that each of Appellants' claims presented a state law challenge to Weedone LV6's label and was therefore preempted.

Standard of Review

This Court reviews a district court's grant of summary judgment de novo. Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156. Thus, we proceed to determine whether any genuine issues of fact exist and whether the movant is entitled to summary judgment as a matter of law. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903.

Discussion
I. Scope of FIFRA Preemption

Under the Supremacy Clause of the Constitution, the laws of the United States are"the supreme Law of the Land." U.S. Const., art. VI, cl. 2. Thus, where a state law or constitution conflicts with federal law or where it is the clear and manifest intent of Congress, state law is preempted. Cipollone v. Liggett Group, Inc. (1992), 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407. Congressional intent to preempt may be found in the express language of the statute or where federal law so occupies an entire field "as to make reasonable the inference that Congress left no room for the States to supplement it." Cipollone, 505 U.S. at 516, 112 S.Ct. at 2617 (quoting Fidelity Federal Sav. & Loan Assn. v. de la Cuesta (1982), 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664, 675).

When first enacted in 1947, FIFRA was primarily a licensing and labeling statute. Wisconsin Public Intervenor v. Mortier (1991), 501 U.S. 597, 111 S.Ct. 2476, 115 L.Ed.2d 532. In 1972, FIFRA was substantially amended by the Federal Environmental Pesticide Control Act and currently provides a comprehensive scheme for regulation of the use, sale, and labeling of pesticides. See 7 U.S.C. §§ 136-136y. The section at issue here, 7 U.S.C. § 136v, states:

(a) 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) 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.

The congressional intent to preempt is clearly found in the express language of § 136v and, thus, need not be inferred. However, FIFRA still leaves open a substantial portion of the field of pesticide regulation. Mortier, 501 U.S. at 613, 111 S.Ct. at 2486. In this case, while the parties agree that this statute preempts state law claims based exclusively on omissions or inclusions in the product label, they dispute whether Appellants have, in fact, pled claims that extend beyond the scope of this FIFRA preemption.

In Cipollone, 505 U.S. at 504, 112 S.Ct. at 2608, the Supreme Court addressed a nearly identical preemption question in the context of cigarette labeling regulation. Rose Cipollone began smoking in 1942 and died of lung cancer in 1984. Cipollone, 505 U.S. at 508, 112 S.Ct. at 2613. The plaintiff, Rose's son, claimed that the Liggett Group caused his mother's death by failing to provide adequate warnings on its cigarettes and by misrepresenting the dangers of smoking to the public. Cipollone, 505 U.S. at 508, 112 S.Ct. at 2613. The Public Health Cigarette Smoking Act of 1969 states that "[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter." 15 U.S.C. § 1334. The Supreme Court held that the phrase "requirement or prohibition" included state common law damage actions as well as positive legislative or administrative enactments. Cipollone, 505 U.S. at 522, 112 S.Ct. at 2620.

The Court went on to consider whether the plaintiff's claims were within the domain expressly preempted by 15 U.S.C. § 1334. Cipollone, 505 U.S. at 523, 112 S.Ct. at 2621. The plaintiff had alleged two claims based on failure to warn: 1) that Liggett Group was negligent in the manner of testing, researching, selling, promoting, and advertising its cigarettes; 2) that Liggett Group failed to provide adequate warnings of the health consequences of cigarette smoking. Cipollone, 505 U.S. at 524, 112 S.Ct. at 2621. The Court held:

insofar as claims under either failure to warn theory require a showing that [Liggett Group's] advertising or promotions should have included additional, or more clearly stated, warnings, those claims are preempted. The Act does not, however, pre-empt petitioner's claims that rely solely on respondents' testing or research practices or other actions unrelated to advertising or promotion.

Cipollone, 505 U.S. at 524, 112 S.Ct. at 2621.

The plaintiff had also alleged a breach of warranty claim, based largely on statements in the Liggett Group's cigarette advertisements. The Court held that the common law remedy for breach of a voluntary, contractual commitment should not be regarded as a requirement imposed under state law. Cipollone, 505 U.S. at 526, 112 S.Ct. at 2622. Thus, the Court held that plaintiff's claims based on breach of warranties found in the cigarette advertisements were not preempted. Cipollone, 505 U.S. at 526-27, 112 S.Ct. at 2622-23.

All of the circuit courts, and several state supreme courts, that have considered the effect of FIFRA's preemption clause have concluded that it should be given the same effect as the preemption clause interpreted in Cipollone. See, e.g., Taylor AG Indus. v. Pure-Gro (9th Cir.1995), 54 F.3d 555; Welchert v. American Cyanamid, Inc. (8th Cir.1995), 59 F.3d 69; Worm v. American Cyanamid Co. (4th Cir.1993), 5 F.3d 744; Shaw v. Dow Brands, Inc. (7th Cir.1993), 994 F.2d 364; Clubine v. American Cyanamid Co. (Iowa 1995), 534 N.W.2d 385; Quest Chemical Corp. v. Elam (Texas 1995), 898 S.W.2d 819; Hue v. Farmboy Spray Co., Inc. (1995), 127 Wash.2d 67, 896 P.2d 682. Further, in vacating the judgments of two circuit courts that held that FIFRA impliedly preempted state law claims based on failure to warn, the U.S. Supreme Court remanded, asking those courts to reconsider in light of its decision in Cipollone. See Arkansas-Platte & Gulf Partnership v....

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