Riden v. ICI Americas, Inc.

• Decision Date: 14 May 1991
• Docket Number: No. 89-0903-CV-W-1.,89-0903-CV-W-1.
• Citation: 763 F. Supp. 1500
• Parties: John RIDEN, et ux., Plaintiffs, v. ICI AMERICAS, INC., Defendant.
• Court: U.S. District Court — Western District of Missouri

763 F. Supp. 1500

John RIDEN, et ux., Plaintiffs, v. ICI AMERICAS, INC., Defendant.

No. 89-0903-CV-W-1.

United States District Court, W.D. Missouri, W.D.

May 14, 1991.

Max Foust, Kansas City, Mo., for plaintiffs.

James F. Duncan, Kansas City, Mo., for Cooper Animal Health.

ORDER

WHIPPLE, District Judge.

Before this court is defendant ICI Americas Inc.'s Motion to Dismiss, filed September 28, 1990. Plaintiffs filed their Suggestions in Opposition on October 10, 1990. Defendant filed its Reply Memorandum on October 22, 1990. For the reasons set forth below, defendant's motion to dismiss will be denied.

I. STATEMENT OF CASE

On August 17, 1989, plaintiffs John and Marilyn Riden ("Riden") filed a petition for damages against defendants ICI Americas, Inc. ("ICIA") and Coopers Animal Health, Inc. ("Coopers") for injuries Mr. Riden suffered after using Havoc, a rat poison manufactured by the defendants.¹ Between October of 1986 and January of 1987, Mr. Riden was employed on a farm in Stoutville, Missouri. As part of his job, Mr. Riden used and distributed Havoc around the farm grounds. The active ingredient in Havoc is a substance called brodifacoum.² Mr. Riden contends that as a direct and proximate result of using the brodifacoum-containing rat poison he suffered "severe bleeding from multiple orifices of his body, sores about his hands and legs, the blocking of Vitamin K coagulation system, gastrointestinal bleeding and other physiological damage to his person." First Amended Complaint at Count I ¶ 5.

In support of their petition for damages, the Ridens assert that ICIA is liable for 1) producing a product that is "defective and unreasonably dangerous when put to a reasonably anticipated use" due to its active ingredient brodifacoum (Count I ¶ 3); 2) failing to give users of the product adequate warning of the "severity or nature of the dangerous poison" it contains and failing to warn users that they should not handle the product with bare skin or breathe the dust from the product (Count II ¶ 9); and 3) negligently failing to properly test the product and to properly warn users of the product's dangerous nature (Count III ¶ 12). All of Mrs. Riden's claims are for loss of consortium.

II. ICIA'S MOTION TO DISMISS

The sole basis for ICIA's Motion to Dismiss — which is based on the Ridens' original petition for damages — is that all of the claims the Ridens assert are preempted by the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136 et seq. ICIA contends that FIFRA preempts claims based on a failure to warn theory because products registered under FIFRA must bear a label approved by the Environmental Protection Agency ("EPA"), the agency responsible for administering FIFRA.³ In support, ICIA argues that FIFRA's legislative history and express language infers that Congress intended to preempt any state role in regulating pesticide labeling. Reply Memorandum at 3.

In support of its contention, ICIA primarily relies on the Honorable Judge Bartlett's decision in Fisher v. Chevron Chemical Co., 716 F.Supp. 1283 (W.D.Mo.1989). Suggestions in Support at 4-7. Therein, the court held that state common law remedies are impliedly preempted by FIFRA because they conflict with the Act's objective of fostering national uniformity in pesticide labeling. Fisher principally relied on the reasoning in Fitzgerald v. Mallinckrodt, Inc., 681 F.Supp. 404 (E.D.Mich.1987) in reaching its conclusion. Fitzgerald was the first case to find that state common law remedies are preempted by FIFRA. The Fitzgerald court reached its decision in spite of the contrary position advanced in Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C.Cir.1984), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1985) (holding that a state jury award is not an obstacle to the purposes of FIFRA because a manufacturer would not be compelled to change its product's label). Instead, the Fitzgerald court relied on the reasoning set forth in Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir.1987), cert. denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989) (holding that state common law remedies are preempted by the Federal Cigarette Labeling and Advertising Act). The Palmer court did not believe, as the Ferebee court did, that a manufacturer would not be compelled to alter its label following an adverse jury verdict.

In response, the Ridens argue that the court should not follow the decision of the Fisher court because its result improperly relies on the Palmer decision. Suggestion in Opposition at 5-7. As noted above, the Fisher court relied on the reasoning in Fitzgerald which, in turn, relied on the reasoning in Palmer for the proposition that tort claims are impliedly preempted by FIFRA. The Ridens contend that contrary to Fitzgerald's reliance on Palmer, the First Circuit tacitly approved Ferebee's finding that FIFRA does not preempt state tort claims. The Palmer court distinguished the regulatory schemes of the two acts so as to justify its conclusion that the cigarette act preempts tort claims while FIFRA did not.

In reply, ICIA argues that Ferebee's reasoning, which has been referred to as the "choice of reaction" analysis, is not persuasive. Suggestions in Support at 7. Relying on Fisher's evaluation of Ferebee, ICIA asserts that Ferebee's analysis weakly seems to justify its result. In actuality, ICIA contends, a jury award will do just what FIFRA expressly prohibits the state legislatures from doing: regulate pesticide labeling and packaging.

III. DISCUSSION

A. Federal Preemption

Federal preemption of state law by the Congress finds its authority in the supremacy clause of the United States Constitution, article VI, clause 2. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210-11, 6 L.Ed. 23, 73 (1824). The U.S. Constitution provides: "The Constitution and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land...." The United States Supreme Court has described three instances where a finding of federal preemption is justified:

... Congress provides explicitly that particular state laws are pre-empted. Although courts should not lightly infer pre-emption, it may be presumed when the federal legislation is "sufficiently comprehensive to make reasonable the inference that Congress `left no room' for supplementary state regulation." In addition to express or implied pre-emption, a state law also is invalid to the extent that it "actually conflicts with a ... federal statute." Such a conflict will be found when the state law "`stands as an obstacle to the accomplishment and execution of the full purposes and objective of Congress.'"

International Paper Co. v. Ouellette, 479 U.S. 481, 491-92, 107 S.Ct. 805, 811, 93 L.Ed.2d 883, 896 (1987) (citations and footnote omitted).

Any analysis under the supremacy clause begins with the basic presumption that Congress did not intend to displace state law. Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576, 595 (1981). This presumption is heightened where the federal law would have the effect of barring a state from exercising its traditional police powers.⁴ In that instance, courts have been advised to "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447, 1459 (1947) (emphasis added).

The critical consideration in any preemption analysis is whether Congress intended that federal law supersede state law. Louisiana Public Service Comm'n v. F.C.C., 476 U.S. 355, 369, 106 S.Ct. 1890, 1899, 90 L.Ed.2d 369, 382 (1986). In searching for Congressional intent, courts often have looked to the law's legislative history, as well as its express language. See, e.g., Kennan v. Dow Chemical Co., 717 F.Supp. 799, 804 (M.D.Fla.1989). The burden is on the moving party to prove that Congress intended to preempt state law. See, e.g., Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255, 104 S.Ct. 615, 625, 78 L.Ed.2d 443, 457 (1984).

B. FIFRA: Its Legislative History and Regulatory Scheme (1) FIFRA's Legislative History

FIFRA was adopted in 1947 and later underwent substantial revision through the adoption of the Federal Environmental Pesticide Control Act of 1972. FIFRA replaced the Insecticide Act of 1910,⁵ the first federal regulatory foray into this area. In its original form, FIFRA's stated purpose was to "regulate the marketing of economic poisons and devices, and for other purposes." The principal provision of the 1947 Act was its requirement that all pesticides, fungicides and rodenticides had to be registered with the U.S. Department of Agriculture⁶ before they could be sold into interstate commerce. The Act also included provisions pertaining to the labeling of products registered thereunder. House Comm. on Agriculture, H.R.Rep. No. 313, 80th Cong., 1st Sess. 2, reprinted in 1947 U.S.Code Cong.Serv. 1200, 1201.

In 1972, FIFRA was amended and its scope of regulation was significantly expanded. The new version of FIFRA strengthened the EPA's enforcement powers, extended federal pesticide regulation to those products moving only into intrastate commerce, and authorized the EPA to refuse to register a pesticide that proved to be an unreasonable risk to man and his environment. S.Rep. No. 838, 92nd Cong. 2d Sess. 1-2, reprinted in 1972 U.S.Code Cong. & Admin.News 3993, 3993-94.

Additionally, the 1972 revision adopted a section expressly articulating the states' authority to regulate pesticides. See 7 U.S.C. § 136v. As originally drafted, FIFRA was designed to work in harmony with the Uniform State Insecticide, Fungicide, and Rodenticide Act.⁷ The legislative history of the 1972 amendment does not shed much light on why Congress added § 136v to the Act except to say: "In dividing the...