Pitts v. Dow Chemical Co., Civ. A. No. 92-T-841-N.

• Decision Date: 29 July 1994
• Docket Number: Civ. A. No. 92-T-841-N.
• Citation: 859 F. Supp. 543
• Parties: Annie Mae PITTS, etc., Plaintiff, v. DOW CHEMICAL COMPANY, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

859 F. Supp. 543

Annie Mae PITTS, etc., Plaintiff, v. DOW CHEMICAL COMPANY, et al., Defendants.

Civ. A. No. 92-T-841-N.

United States District Court, M.D. Alabama, Northern Division.

July 29, 1994.

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Larry Lewis Raby; and Roger S. Morrow and Wesley Romine, Morrow, Romine & Pearson, P.C., Montgomery, AL, for plaintiff.

Dennis R. Bailey, Richard B. Garrett, Nathan Wayne Simms, Jr., Rushton, Stakely, Johnston & Garrett; and Tabor R. Novak, Jr., and Gerald C. Swann, Jr., Ball, Ball, Matthews & Novak, P.A., Montgomery, AL, for defendants.

MEMORANDUM OPINION

MYRON H. THOMPSON, Chief Judge.

In this lawsuit, plaintiff Annie Mae Pitts — representing the estate of her deceased son, Willie Pitts — charges that the defendants are liable in tort for her son's death. Her son died while applying "Dursban TC," a pesticide manufactured, distributed, and sold by defendants. Defendants are Dow Chemical Company, Eli Lilly & Company, Van Waters & Rogers, Inc., DowElanco, Terra International, Inc., and Riverside Chemical Company, Inc. This lawsuit is now before the court on the following motions: plaintiff's motion to amend her complaint; defendants' motions for summary judgment or, in the alternative, for judgment on the pleadings; and defendants' motion to strike certain exhibits. For the reasons given below, plaintiff's motion to amend will be granted, defendants' motions for summary judgment will be granted, and defendants' motion to strike will be denied as moot.

I. BACKGROUND

On July 6, 1990, according to plaintiff, her son was applying Dursban TC when he lost consciousness and died as a result of prolonged exposure to the product. Her son was then employed with Gunn Exterminators in Montgomery, Alabama as a termite treater and pest control specialist.

Plaintiff brought suit against defendants in state court in June 1992. Defendants removed the lawsuit to federal court based on diversity-of-citizenship jurisdiction, 28 U.S.C.A. §§ 1332, 1441. Each of the three counts in plaintiff's original complaint rests almost exclusively upon the inadequacy of the warning label on Dursban TC. Count I alleges that the warnings or instructions on Dursban TC were defective and inadequate, rendering the product unreasonably and inherently dangerous. Count II alleges that defendants negligently designed, formulated, developed, prepared, produced or failed to exercise proper quality control over the warnings and instructions which accompanied Dursban TC and that this negligence failed to apprise users of the dangers associated with that product. Count III alleges that defendants negligently failed adequately to warn users of Dursban TC of the dangers associated with the prolonged use of that product and failed adequately to disseminate information regarding the appropriate measures to avoid such dangers.¹ Defendants contend that plaintiff's claims are preempted by federal law, specifically, by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C.A. §§ 136-136y, which provides for the registration of pesticides and the approval of adequate warning labels by the United States Environmental Protection Agency (the "EPA").²

On November 5, 1992, the proceedings in this case were stayed pending a reconsideration by the Eleventh Circuit Court of Appeals of its holding in Papas v. Upjohn Co. (Papas I), 926 F.2d 1019 (1991). In Papas I, the Eleventh Circuit held that FIFRA impliedly preempts state common law tort claims based on inadequate labeling. The Supreme Court, however, vacated Papas I and remanded it for further consideration in light of the Court's decision in Cipollone v. Liggett Group, Inc., ___ U.S. ___, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). Papas v. Zoecon Corp., ___ U.S. ___, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992). At that time, plaintiff and defendants agreed that the Eleventh Circuit's decision on remand was potentially dispositive of the issues then before this court.

On remand, the Eleventh Circuit held in Papas v. Upjohn Co. (Papas II), 985 F.2d 516 (1993), that FIFRA expressly preempts state common law tort claims based on inadequate labeling. Defendants responded to this decision with motions to resume proceedings in this lawsuit. Defendants also filed motions for summary judgment or, in the alternative, for judgment on the pleadings, asserting that Papas II fully disposed of plaintiff's claims. Plaintiff then filed a motion to strike defendants' motions for summary judgment, asserting that, because a petition for writ of certiorari had been filed in Papas II, the Eleventh Circuit's holding had yet to become final. Before the court ruled on these motions, however, the Supreme Court denied certiorari in Papas II. ___ U.S. ___, 114 S.Ct. 300, 126 L.Ed.2d 248 (1993). On December 6, 1993, this court found that Papas II was final and controlling law in the Eleventh Circuit, granted defendants' motions to reopen proceedings, and denied plaintiff's motion to strike defendants' motions for summary judgment.

Plaintiff also filed a motion to amend her complaint. In an apparent attempt to state claims not based on inadequate labeling, plaintiff seeks three amendments to her complaint. First, she seeks to amend count III — negligent failure to warn users of dangers — to add a claim that Dursban TC is an unreasonably and inherently dangerous product for the purposes for which it was made available. Second, she seeks to add count V to state a claim under the Alabama Extended Manufacturer's Liability Doctrine (the "AEMLD") that Dursban TC is an unreasonably and inherently dangerous product for the purpose for which it was designed and that her son was an intended user of that product. Third, she seeks to add count VI to state a claim that Dursban TC was rendered unreasonably and inherently dangerous by defendants' negligent design and production of that product.

Defendants oppose these amendments, but argue that — even if the amendments are allowed by the court — all claims in the amended complaint remain preempted by FIFRA. Defendants also seek to strike certain evidentiary materials submitted by plaintiff to show that Dursban TC is an unreasonably and inherently dangerous product. The court will now consider the pending motions in turn.

II. PLAINTIFF'S MOTION TO AMEND

As described above, plaintiff has moved to amend her complaint to state claims that do not refer specifically to the inadequacy of Dursban TC's warning label.³ Defendants assert that the court should deny the motion to amend on the ground that the amendments would be futile because all claims in the amended complaint, as in the original complaint, are preempted by FIFRA.

After the period for amendment of a complaint has passed, "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); Stevens v. Gay, 864 F.2d 113, 116 (11th Cir.1989). It seems to have been the understanding of the parties at the time this case was continued that the Eleventh Circuit's decision on remand in Papas could be followed by amendments to the complaint. Plaintiff represented to the court in her motion for a continuance that the "ruling by the Eleventh Circuit may very well require amendments to the pleadings concerning additional theories and at a minimum will direct the process by which discovery will proceed."⁴ Defendants did not oppose plaintiff's motion. On the basis of this understanding, the court concludes that justice requires that the motion to amend be granted. Therefore, in ruling on the defendants' motions for summary judgment or, in the alternative, for judgment on the pleadings, the court will consider those motions with respect to all claims in the amended complaint. It is to those dispositive motions that the court now turns its attention.

III. DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

Because matters outside the pleadings have been presented to and not excluded by the court, defendants' motions for summary judgment or, in the alternative, for judgment on the pleadings, will be treated as motions for summary judgment and disposed of as provided in Rule 56 of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 12(c); Concordia v. Bendekovic, 693 F.2d 1073, 1075 (11th Cir.1982).

A. Summary Judgment Standard

Rule 56(c) provides that summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Once the party seeking summary judgment has informed the court of the basis for its motion, the burden shifts to the non-moving party to demonstrate why summary judgment would be inappropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir.1993) (discussing how the responsibilities on the movant and the nonmovant vary depending on whether the legal issues, as to which the facts in question pertain, are ones on which the movant or nonmovant bears the burden of proof at trial).

B. Discussion

1. The FIFRA Scheme of Pesticide Regulation and Labeling

FIFRA is a comprehensive regulatory statute governing the use, sale, and labeling of all pesticides sold in the United States. 7 U.S.C.A. § 136a. All pesticides sold or distributed in the United States must be registered with the EPA. 7 U.S.C.A. § 136a(a). A pesticide manufacturer seeking registration must submit proposed labeling and instructions for a pesticide, 7 U.S.C.A. § 136a(c)(1)(C), along with certain toxicological and other data generated from studies prescribed by the EPA. 40 C.F.R. §§ 158.240, 158.340, 158.390.

Upon receiving this information, the EPA cannot register a pesticide unless it finds that all of the following criteria have been met:

"(A) its composition is such as to warrant the proposed claims for it;

(B) its labeling and

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