Papas v. Upjohn Co.
| Decision Date | 28 February 1991 |
| Docket Number | No. 89-3752,89-3752 |
| Citation | 926 F.2d 1019 |
| Parties | , 59 USLW 2554, 21 Envtl. L. Rep. 20,898, Prod.Liab.Rep.(CCH)P 12,776 Minas H. PAPAS, Ollie M. Papas, his wife, Plaintiffs-Appellants, v. The UPJOHN COMPANY, a Delaware corporation qualified to do business in the State of Florida, Zoecon Corporation, a Delaware corporation currently doing business in the State of Florida, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Lee S. Haramis, and Dana G. Bradford, II, Baumer, Bradford & Walters, P.A., Jacksonville, Fla., for plaintiffs-appellants.
Angela J. Nicita, Chambers, Steiner, Mazur, Ornstein & Amlin, P.C., Detroit, Mich. and Arthur H. Bryant, Washington, D.C., for amicus State of Fla.
Lawrence S. Ebner, McKenna & Cuneo, Washington, D.C., Frank W. Hession and Robert B. Guild, Matthews & Hession, Jacksonville, Fla., for Zoecon Corp.
Michael I. Coulson, Howell, Liles, Braddock & Milton, Jacksonville, Fla., for Upjohn Corp.
John J. Weinholtz, Peter D. Braun and Paul F. Jones, Buffalo, N.Y., for Reichhold.
Joshua Kardisch, Rivkin Radler Dunne & Bayh, Uniondale, N.Y. and Peter Jennings, Midland, Mich., for Dow Chemical.
Appeal from the United States District Court for the Middle District of Florida.
Before ANDERSON and EDMONDSON, Circuit Judges, and MORGAN, Senior Circuit Judge.
Minas and Ollie Papas ("Papas") filed a diversity action in federal district court against the Upjohn Company and Zoecon Corporation. The complaint alleged that Minas, while working for a humane society, had applied certain pesticides manufactured by Upjohn and Zoecon to dogs to rid the dogs of fleas, ticks, and other pests. The complaint also alleged that these chemical products caused him to suffer health problems. The complaint sounded in negligence, strict liability, and breach of implied warranty of merchantability, and included a derivative claim for loss of consortium. The three main counts were, in whole or in part, claims of inadequate labeling in the light of alleged dangers arising from exposure to the pesticides.
Zoecon moved for partial summary judgment on the labeling claims. It argued that the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.A. Secs. 136-136y ("FIFRA"), under which its product is registered preempted such claims. The district court agreed and granted Zoecon's motion. Having determined that this issue involves a controlling question of law on which there are substantial grounds for difference of opinion 1 and that an immediate appeal would materially advance the ultimate determination of the litigation, the district court certified the matter for interlocutory appeal, pursuant to 28 U.S.C.A. Sec. 1292(b). We granted the petition to appeal, and the appeal followed. We conclude that state common law tort claims for inadequate labeling are impliedly preempted by FIFRA and, accordingly, affirm the district court's grant of partial summary judgment.
Federal preemption of state law is based on the supremacy clause of the Constitution:
This Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Art. VI, cl. 2. Preemption can be either express or implied; it "is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." Fidelity Fed. Sav. & Loan Ass'n v. De La Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977)).
Preemption can be inferred
(1) "when there is outright or actual conflict between federal and state law;"
(2) "where compliance with both federal and state law is in effect physically impossible;"
(3) "where there is implicit in federal law a barrier to state regulation;"
(4) "where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law;" or
(5) "where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress."
Louisiana Public Service Comm'n v. F.C.C., 476 U.S. 355, 368-69, 106 S.Ct. 1890, 1898, 90 L.Ed.2d 369 (1986) (citations omitted); see also International Paper Co. v. Ouellette, 479 U.S. 481, 491-92, 107 S.Ct. 805, 811, 93 L.Ed.2d 883 (1987); Hillsborough County, Fla. v. Automated Med. Labs., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985); De La Cuesta, 458 U.S. at 153, 102 S.Ct. at 3022; Taylor v. General Motors Corp., 875 F.2d 816, 822, 825-26 (11th Cir.1989); Stephen v. American Brands, Inc., 825 F.2d 312, 313 (11th Cir.1987). A state law--even if it has the same ultimate goal as a federal law--may stand as an obstacle to the full implementation of a federal law and therefore be preempted "if it interferes with the methods by which the federal statute was designed to reach this goal." Ouellette, 479 U.S. at 494, 107 S.Ct. at 813.
The principle of implied preemption "applies whether the federal law is embodied in a statute or regulation, and whether the state law is rooted in a statute, regulation, or common law rule." Taylor, 875 F.2d at 826 (citations omitted). Accord Ouellette, 479 U.S. at 494-95, 499 n. 20, 107 S.Ct. at 813, 815 n. 20 (); Louisiana Public Service Comm'n, 476 U.S. at 369, 106 S.Ct. at 1898-99 (); Automated Med. Labs., 471 U.S. at 713, 105 S.Ct. at 2375 (); Cipollone v. Liggett Group, Inc., 789 F.2d 181, 187 (3d Cir.1986) () (decision and reasoning adopted by Eleventh Circuit in Stephen v. American Brands, Inc., 825 F.2d at 313). Thus, we have recognized that the "imposition of damages under state tort law has long been held to be a form of state regulation subject to the supremacy clause." Taylor, 875 F.2d at 824 n. 16 (citing San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959)).
The critical question in considering whether state law is preempted by federal law is Congressional intent--that is, "whether Congress intended that federal regulation supersede state law." Louisiana Public Service Comm'n, 476 U.S. at 369, 106 S.Ct. at 1899. "[I]n implied preemption analysis it is possible to infer preemptive intent solely from effects": even if statutory language or legislative history is unclear, federal law preempts state law if "the ordinary application of the two laws creates a conflict." Taylor, 875 F.2d at 826.
FIFRA, initially enacted in 1947, was completely revised in 1972, when the responsibility for its enforcement was transferred to the Environmental Protection Agency ("EPA") from the Department of Agriculture. The Senate Committee on Agriculture and Forestry, to which the bill was referred, identified two purposes of the 1972 revisions to FIFRA: to "(A) regulate the use of pesticides to protect man and his environment; and (B) extend Federal pesticide regulation to actions entirely within a single State." S.Rep. No. 92-838, 92d Cong. 2d Sess., reprinted in 1972 U.S.Code Cong. & Admin.News 3993. At that time, FIFRA was amended to define "protect health and the environment" and "protection of health and the environment" as "protection against any unreasonable adverse effects on the environment." 7 U.S.C.A. Sec. 136(x). "Unreasonable adverse effects on the environment" was, in turn, defined as "any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide." 7 U.S.C.A. Sec. 136(bb).
FIFRA's legislative history indicates that Congress intended to establish a comprehensive regulatory scheme in which the EPA Administrator would be responsible for determining whether to register a pesticide and, if so, under what circumstances. Congress recognized that the control of pesticides required a careful balancing of benefit against risk:
While appropriate pesticides properly used are essential to man and his environment, many constitute poisons that are too dangerous to be used for any purpose. Others are dangerous unless used extremely carefully.... Pesticides therefore have important environmental effects, both beneficial and deleterious. Their wise control based on a careful balancing of benefit versus risk to determine what is best for man is essential.
S.Rep. No. 92-838, 92d Cong. 2d Sess., reprinted in 1972 U.S.Code Cong. & Admin.News at 3996. The EPA Administrator was designated as the entity to conduct the balancing analysis The question [the Administrator] must decide is "Is it better for man and the environment to register this pesticide, or is it better that this pesticide be banned?" He must consider hazards to farmworkers, hazards to birds and animals and children yet unborn. He must consider the need for food and clothing and forest products, forest and grassland cover to keep the rain when it falls, prevent floods, provide clear water. He must consider aesthetic values, the beauty and inspiration of nature, the comfort and health of man. All these factors he must consider, giving each its due. No one should be given undue consideration, no one should be singled out for special mention, no one should be considered a "vital" criterion.
For each pesticide the Administrator must ask the same question.... In each case the...
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