Sleath v. West Mont Home Health Services

• Decision Date: 28 December 2000
• Docket Number: No. 99-185.,99-185.
• Parties: Libby SLEATH, Mary Ann Hayes, Glenda Truesdell, and Mary Owen, Plaintiffs/Appellants, v. WEST MONT HOME HEALTH SERVICES, INC., West Mont Home Management Services, Inc., Orkin Extermination Company, Inc., and EP Co., Inc., and Rofan Services, Inc., d/b/a Dowelanco, Defendants/Respondents.
• Court: Montana Supreme Court

16 P.3d 1042

2000 MT 381

304 Mont. 1

Libby SLEATH, Mary Ann Hayes, Glenda Truesdell, and Mary Owen, Plaintiffs/Appellants, v. WEST MONT HOME HEALTH SERVICES, INC., West Mont Home Management Services, Inc., Orkin Extermination Company, Inc., and EP Co., Inc., and Rofan Services, Inc., d/b/a Dowelanco, Defendants/Respondents.

No. 99-185.

Supreme Court of Montana.

Heard January 11, 2000.

Submitted February 15, 2000.

Decided December 28, 2000.

Rehearing Denied February 1, 2001.

Peter Michael Meloy, Meloy & Morrison, Helena, Montana; Tom Scheuneman, Corona Del Mar, CA, For Appellants.

Ronald F. Waterman, Gough, Shanahan, Johnson & Waterman, Helena, MT; Andrew J. Detherage, Charles P. Edwards, Barnes & Thornburg, Indianapolis, IN, For Respondent DowElanco.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Appellants Libby Sleath, Mary Ann Hayes, Glenda Truesdell, and Mary Owen brought this personal injury action against Respondents West Mont Home Health Services, Inc. and West Mont Home Management Services, Inc. (collectively referred to as "West Mont"); Orkin Extermination Company, Inc. (Orkin); and Ep Co., Inc. and Rofan Services, Inc. d/b/a DowElanco (collectively referred to as "DowElanco"), for injuries Appellants allegedly suffered when Orkin applied a pesticide manufactured by DowElanco at the West Mont building where plaintiffs worked. The District Court for the First Judicial District, Lewis and Clark County, granted summary judgment in favor of DowElanco on the basis that Appellants' claims are preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). We reverse and remand for further proceedings consistent with this opinion. ¶ 2 Appellants present the following issues for review:

¶ 3 1. Whether Appellants' failure to warn claims, pleaded in negligence, strict liability, and breach of express warranty, are preempted by FIFRA because they are based upon or implicate the pesticide's labels.

¶ 4 2. Whether the failure to warn claims in Appellants' negligence and strict liability theories of liability are preempted by FIFRA when Appellants were not purchasers or users of the pesticide and were, instead, unwitting bystanders who never saw the pesticide's labels and who suffered injury from the use of the pesticide by others.

¶ 5 3. Whether Appellants' strict liability for design defect theory of liability is preempted by FIFRA.

¶ 6 Because we conclude that Issue 1 is dispositive, we do not address Issues 2 and 3.

Factual and Procedural Background

¶ 7 Appellants worked in a building in Helena owned by their employer, West Mont. Sometime in 1991, West Mont ordered that all windows in the building be closed and that the operating cranks for the windows be removed, thereby preventing fresh air ventilation of the building. Between 1991 and 1994, Orkin applied various pesticides, collectively referred to here as Dursban, to the interior of the West Mont building every three to six weeks without prior or subsequent warnings to Appellants. These pesticides were manufactured and sold by DowElanco.

¶ 8 Each of the Appellants began suffering from various physical ailments and were forced to leave their employment on advice of their physicians. Appellant Hayes worked in the West Mont building until June 28, 1993; Appellant Owen worked until July 12, 1993; Appellant Truesdell worked until August 24, 1993; and Appellant Sleath worked until May 1994. Appellants first learned that they were routinely exposed to Dursban in 1995 when they requested information from West Mont about the pesticide applications. Prior to 1995, Appellants were unaware that they had been exposed to Dursban.

¶ 9 Dursban is DowElanco's registered trademark for a group of insecticides developed, manufactured, and marketed by Dow-Elanco. The active ingredient in each of the Dursban products is a synthetic chemical compound known as chlorpyrifos which is one of a group of compounds known as organophosphates. Organophosphates are synthetic chemical relatives of the nerve gases used in World Wars I and II. They are central and peripheral nervous system poisons that inhibit the action of the enzyme acetylcholinesterase.

¶ 10 Depending on exposure frequency and dosage levels, the toxicity to the central and peripheral nervous systems can cause symptoms such as headaches, dizziness, flu-like malaise, urinary frequency, confusion and difficulties with memory and concentration. Each of the Appellants exhibits one or more of these symptoms, all of which are toxicologically consistent with excessive exposure to chlorpyrifos as contained in Dursban.

¶ 11 Dursban's labels are registered in accordance with FIFRA and its implementing regulations. Each of the Dursban labels relevant to this case contains the following statement:

DowElanco warrants that this product conforms to the chemical description on the label and is reasonably fit for the purposes stated on the label when used in strict accordance with the directions, subject to the inherent risks set forth below.

¶ 12 DowElanco markets and sells its Dursban products only to professional applicators, distributors, and formulators. It does not market or sell Dursban products to the general public. In fact, Dursban's labels require that it be applied by, or under the direction of, commercial applicators.

¶ 13 On January 5, 1996, Appellants filed a complaint against West Mont, Orkin, and DowElanco. Thereafter, on October 9, 1996, Appellants, with leave of the District Court, filed their Second Amended Complaint wherein they alleged that West Mont was negligent for failing to ensure that the building in which Appellants were working was free from hazardous chemicals and for failing to warn Appellants and other employees about the possible health risks of the pesticides applied in the building. Appellants also alleged that Orkin negligently and carelessly failed to give warning or otherwise take steps to ensure that Appellants and others would not be exposed to the pesticide's adverse effects.

¶ 14 As to DowElanco, the complaint alleged negligent design and manufacture of Dursban, strict products liability for the design and manufacture of Dursban, and breach of express and implied warranties. Moreover, the negligence and strict liability theories contained allegations that DowElanco failed to provide adequate warnings about the dangers of Dursban.

¶ 15 During the course of discovery, Dow-Elanco served each Appellant with an identical set of 15 interrogatories. Appellants' answers to these interrogatories were nearly identical. And, in response to many of these interrogatories, Appellants referred to Dursban's labels.

¶ 16 On February 24, 1998, DowElanco moved for summary judgment on the basis that all of Appellants' claims are preempted by FIFRA because Appellants' complaint and interrogatory answers show that Appellants' theories of liability are all based solely upon inclusions in or omissions from Dursban's labels. The specific provision in FIFRA to which DowElanco refers is 7 U.S.C. § 136v(b), which provides:

(b) Uniformity

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.

¶ 17 Appellants responded to DowElanco's motion for summary judgment by redacting their interrogatory answers to exclude specific references to Dursban's labels. Appellants also submitted a supplemental affidavit from Robert K. Smith, Ph.D., one of Appellants' proposed expert witnesses, setting forth his opinion that Dursban is defective and unreasonably dangerous "in the context of interior workplace application of those products."

¶ 18 DowElanco moved to strike this supplemental affidavit, but the District Court denied the motion. The court determined, however, that even considering the supplemental affidavit and excluding references to Dursban's labels in Appellants' interrogatory answers, all of Appellants' claims are based on Dursban's labels. Hence, the District Court concluded that pursuant to this Court's opinion in McAlpine v. Rhone-Poulenc Ag. Co. (1997), 285 Mont. 224, 947 P.2d 474, all of Appellants' claims against DowElanco are preempted by FIFRA. Accordingly, the District Court granted summary judgment in favor of DowElanco.

Standard of Review

¶ 19 Our standard of review in appeals from summary judgment rulings is de novo. Oliver v. Stimson Lumber Co., 1999 MT 328, ¶ 21, 297 Mont. 336,

¶ 21, 993 P.2d 11, ¶ 21(citing Motarie v. N. Mont. Joint Refuse Disposal (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785). When we review a district court's grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. Oliver, ¶ 21 (citing Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903). We set forth our inquiry in Bruner as follows:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Oliver, ¶ 21 (quoting Bruner, 272 Mont. at 264-65, 900 P.2d at 903).

¶ 20 Moreover, in a summary judgment proceeding, the evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences will be drawn therefrom in favor of the party opposing summary judgment. Oliver, ¶ 22 (citing Joyce v. Garnaas, 1999 MT 170, ¶ 8, 295 Mont. 198, ¶ 8, 983 P.2d 369, ¶ 8). Consequently, we will view the evidence in the light most favorable to the Appellants and all reasonable inferences will be drawn in...