National Bank of Commerce of El Dorado, Arkansas v. Dow Chemical Co.
| Decision Date | 16 February 1999 |
| Docket Number | No. 98-1200,98-1200 |
| Citation | 165 F.3d 602 |
| Parties | 29 Envtl. L. Rep. 20,456, Prod.Liab.Rep. (CCH) P 15,422 NATIONAL BANK OF COMMERCE, OF EL DORADO, ARKANSAS, guardian of the estate (only) of Matthew Nolan Arnold, a minor; Michael David Arnold, Individually, and as parent and next friend of Matthew Nolan Arnold, a minor, Appellants. v. DOW CHEMICAL CO.; Rofan Services, Inc.; Epco, Inc., of Indiana, doing business as Dowelanco; Chevron Chemical Company; Ciba Geigy Corp.; Bengal Chemical Company; United Industries Corporation; John Does # 1-10, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Bobby D. Davidson, Little Rock, AR, argued for Appellant.
D. Keith Fortner, Little Rock, AR, argued (G. Spence Fricke, Little Rock, AR, on the brief), for Appellee CIBA Geigy Corp.
Jon M. Moyers, St. Louis, MO, argued (J. William Newbold and Dudley Von Holt, St. Louis, MO, on the brief), for Appellee United Industries Corp.
Edward M. Slaughter, Arkadelphia, AR, argued for Appellee Bengal Chemical Inc.
Louis C. Woolf, Knoxville, TN, argued (Sammye L. Taylor and Don S. McKinney, Little Rock, AR, on the brief) for Appellee Chevron Chemical.
Joseph G. Eaton, Indianapolis, IN, argued (William E. Padgett and Dean T. Barnhard, Indianapolis, IN, on the brief) for Appellee EPCO, Inc., Dow Chemical Co. and Rofan Services, Inc.
Before RICHARD S. ARNOLD, BEAM, and HANSEN, Circuit Judges.
Representatives of Matthew Nolan Arnold, and his father Michael David Arnold (the Arnolds), appeal an adverse grant of summary judgment on their claims against several chemical companies. The district court 1 granted summary judgment in favor of Dow Chemical Co., Rofan Services, Inc. and Epco, Inc. because the evidence showed that their product had not been used in the Arnolds' home. The district court granted summary judgment to the remaining chemical companies, United Industries Corp., Ciba Geigy Corp., Chevron Chemical Co., and Bengal Chemical Co. because it found that the Federal Insecticide, Fungicide and Rodenticide Act preempts the Arnolds' claims. We affirm.
Jerry and Patricia Arnold had problems with roaches and other household insects. To eliminate the problem, they allegedly purchased and applied three pesticides: Spectracide Dursban Indoor and Outdoor Insect Control, Ortho Hi-Power Ant, Roach & Spider Spray/Formula II, and Bengal Roach Spray. Jerry and Patricia Arnold contend they were using these products when their son and daughter-in-law, Michael and Debra Arnold, moved into their home in December of 1992. Around the time they moved in, Debra Arnold became pregnant with Matthew Arnold who was born September 7, 1993. The use of pesticides allegedly continued throughout the early stages of Debra Arnold's pregnancy, that is until April 1, 1993. When Matthew Arnold was born, he suffered from multiple birth defects. The Arnolds filed this action in federal district court alleging negligence, products liability, and breach of warranty claims against Dow Chemical Co., Rofan Services, Inc. and Epco, Inc. of Indiana (collectively "Dow"), United Industries Corp., Ciba Geigy Corp., Chevron Chemical Co., and Bengal Chemical Co.
Dow manufactures the chemical Dursban. Dursban, in turn, is used by United Industries Corp. (United) to formulate the product Spectracide Dursban Indoor and Outdoor Insect Control (Spectracide). Spectracide is then distributed by United to the public. The Arnolds contend that the Spectracide was purchased from Henley's Feed Store and came in a metal or glass container. Buddy Henley, the proprietor of Henley's Feed Store, testified that the store has never sold nor stocked the Spectracide product and United, the product's distributor, presented evidence that the product was never formulated or distributed in a metal or glass container.
Ciba Geigy Corp. manufactures the chemical Diazinon. Diazinon is used by the Chevron Chemical Co. to formulate the product Ortho Hi-Power Ant, Roach & Spider Spray/Formula II. Chevron distributes this product to the public. Bengal Chemical Co. manufactures and distributes Bengal Roach Spray.
In order to market their products, Dow, United, Ciba Geigy, Chevron, and Bengal registered them with the United States Environmental Protection Agency (EPA) and received an approved label. The registration process includes, among other things, identification of the product's chemical, toxicological, physiological, biochemical, environmental, and ecological characteristics. The EPA then issues a Pesticide Fact Sheet summarizing the product's information. The authority and statutory framework for this process is provided by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). 7 U.S.C. §§ 136(a)-(y).
After discovery in this action had continued for over a year, but before the discovery completion deadline had passed, all of the companies moved for summary judgment. The Arnolds responded by seeking to delay summary judgment to allow completion of additional discovery. The Arnolds essentially stated only that more discovery could be helpful. The district court denied further discovery and granted summary judgment for each company. The district court granted summary judgment to Ciba Geigy, Chevron, Bengal, and United because it found that FIFRA preempts the Arnolds' claims. With respect to Dow, the district court found "the products used by the Arnolds could not have contained Dursban." National Bank of Commerce v. Dow Chem. Co., No. 96-1099, memorandum op. at 13 (W.D.Ark. Nov. 19, 1997). 2
The Arnolds advance three reasons why summary judgment was inappropriate. First, they assert that summary judgment was premature because discovery had not been completed. Second, they contend that the evidence adequately identifies the product used in the Arnolds' home. Finally, the Arnolds assert that FIFRA does not preempt their claims.
The Arnolds argue that the outstanding discovery in their case would have resulted in acquisition of "more evidence in support of their response to defendants' Motions for Summary Judgment." Brief for Appellants at 5. The Arnolds' contention is not novel since summary judgment is appropriate when there is "adequate time" for discovery and not solely when discovery is complete. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The district court has discretion to determine when there has been adequate time for discovery and we review that determination for abuse of discretion. See Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir.1987).
When faced with summary judgment motions before the completion of discovery, the district court also has discretion, upon a motion under Federal Rule of Civil Procedure 56(f), to refuse summary judgment or to order a continuance "to permit affidavits to be obtained or depositions to be taken or discovery to be had." Fed.R.Civ.P. 56(f). The Arnolds responded to the summary judgment motions by speculating that more discovery would be useful. 3 They failed to show how the additional discovery would alter the evidence before the district court. A conclusory statement that some useful evidence could possibly be found is insufficient to preclude the termination of discovery. See City of Mt. Pleasant v. Associated Elec. Coop., Inc., 838 F.2d 268, 280 (8th Cir.1988). We find the district court did not abuse its discretion by denying further discovery and ruling on summary judgment after over a year of discovery had been completed.
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party, see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The district court granted Dow summary judgment because the uncontroverted evidence established that United's Spectracide product, containing Dow's Dursban product, was not used by the Arnolds. 4 We review the district court's grant of summary judgment de novo. See South Dakota Mining Ass'n, Inc. v. Lawrence County, 155 F.3d 1005, 1009 (8th Cir.1998).
Before Dow and/or United can be held liable for causing an injury, the Arnolds must establish that the Spectracide product was actually used. The Arnolds argue that their affidavits demonstrate that a genuine issue of material fact exists concerning whether the Spectracide product was used in the Arnold home. 5 In their affidavits, the Arnolds state that they purchased the Spectracide product at Henley's Feed Store and that it came in a glass or metal container. However, during discovery Dow and United produced uncontroverted evidence that Henley's Feed Store has neither sold nor stocked Spectracide Dursban Indoor and Outdoor Insect Control and that it was never formulated or distributed in a metal or glass container. 6
Once a party moving for summary judgment has made a sufficient showing, the burden rests with the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. It is not enough to rest on the pleadings and allegations. See Chism v. W.R. Grace & Co., 158 F.3d 988, 990 (8th Cir.1998). Aside from the pleadings and allegations, the Arnolds rest their product identification burden on a snippet of uncertain testimony. 7 This does not create a genuine issue of material fact because the Arnolds "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. They must show there is sufficient evidence to support a jury verdict in their favor. See Anderson v....
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