Warner v. American Fluoride Corp.

• Decision Date: 12 September 1994
• Parties: , Prod.Liab.Rep. (CCH) P 14,040 Sylvester WARNER, Appellant, v. AMERICAN FLUORIDE CORP., et al., Respondents (and a third-party action).
• Court: New York Supreme Court — Appellate Division

Page 534

616 N.Y.S.2d 534

204 A.D.2d 1, Prod.Liab.Rep. (CCH) P 14,040

Sylvester WARNER, Appellant, v. AMERICAN FLUORIDE CORP., et al., Respondents (and a

third-party action).

Supreme Court, Appellate Division,

Second Department.

Sept. 12, 1994.

Julien & Schlesinger, P.C., New York City (David B. Turret, of counsel), for appellant.

Lester, Schwab, Katz & Dwyer, New York City (Eric A. Portuguese and Judi L. Abbott, of counsel), for respondent American Fluoride Corp.

Donovan, Leisure, Newton & Irvine, New York City (Daniel J. Thomasch and Nicole M. Van Ackere, of counsel), for respondent Ciba-Geigy Corp.

Holtzman & Urquhart, Houston, TX, and Townley & Updike, New York City (Barbara M. Roth, of counsel), for respondent Mobay Corp. (one brief filed).

McCarter & English, New York City (John L. McGoldrick, of counsel; Frederick T. Smith, on the brief), for respondent Dow Chemical Corp.

Before LAWRENCE, J.P., and RITTER, FRIEDMANN and KRAUSMAN, JJ.

KRAUSMAN, Justice.

The central issue presented on appeal is whether the Federal Insecticide, Fungicide, and Rodenticide Act, more commonly known as FIFRA, preempts the plaintiff's State tort claims based upon the failure to adequately warn him of the dangers of the pesticides to which he was exposed as an employee of the New York City Department of Corrections. For the reasons which follow, we now join the majority of courts across the nation in concluding that the language of FIFRA, its legislative history, and the recent decision of the United States Supreme Court in Cipollone v. Liggett Group, Inc., 505 U.S. ----, 112 S.Ct. 2608, 120 L.Ed.2d 407, compel the conclusion that FIFRA expressly preempts the plaintiff's causes of action to the extent that they are premised on the adequacy of pesticide warning labels. Accordingly, we find that the plaintiff's action was properly dismissed by the Supreme Court, Westchester County.

I

The plaintiff Sylvester Warner is a former employee of the New York City Department of Corrections. Warner alleges that while employed as a corrections officer between 1966 and 1982, he was continuously exposed to several pesticides manufactured and distributed by the defendants, which were used to control pests and rodents at the Riker's Island and Hart's Island facilities. The pesticides sprayed at the facilities where the plaintiff was employed allegedly included Diazion 2D and 4E, manufactured by the CIBA-GEIGY Corp., Baygon, manufactured by the Mobay Chemical Corp., and Dursban 2E, manufactured by the Dow Chemical Company. As a result of his exposure to these pesticides, the plaintiff claims he developed toxic neuropathy, which left him permanently disabled, and prevented him from continuing employment as a corrections officer.

In 1983 the plaintiff commenced this action against the three manufacturers of the pesticides to which he had allegedly been exposed, and the American Fluoride Corp., which distributed the subject pesticides to the New York City Department of Corrections during the period of the plaintiff's employment. The complaint alleged, inter alia, that the defendants were negligent in manufacturing, selling, and distributing pesticides without properly and sufficiently testing them, and in failing to properly and sufficiently label the pesticides to warn the public of the danger of inhaling the chemicals, and how to avoid such danger. The complaint additionally contained causes of action premised upon breach of the implied warranty of merchantability and fitness for use, strict products liability, and violations of unnamed statutes, codes, laws, and ordinances.

In February 1992, nearly nine years after the commencement of this action, the defendant Dow Chemical Company (hereinafter Dow) moved for summary judgment, contending that the plaintiff's tort claims were preempted by Federal law because Dursban 2E, the insecticide manufactured and sold by Dow, had been approved and registered by the Environmental Protection Agency (hereinafter EPA) as required by FIFRA and its related regulations. In support of its motion, Dow noted that as part of the registration process, the EPA had approved all aspects of the form and content of the label which accompanies every container of Dursban 2E sold in the United States, and that the EPA's acceptance of the insecticide for registration demonstrated that the Federal agency had determined that Dursban 2E was reasonably safe if used pursuant to the mandated label. Dow further submitted that since FIFRA and its associated regulations form a pervasive regulatory scheme governing every aspect of the content of pesticide labeling, FIFRA's preemption of a State's authority to change EPA-approved labeling encompassed a state's authority to entertain common-law tort claims challenging the sufficiency of the warnings and instructions which accompany a pesticide. Dow also argued that if the plaintiff were to prevail on his failure to warn claim, a conflict between State and Federal law would arise, because the State of New York would, in effect, be requiring Dow to change its EPA-approved label or face a jury verdict, despite the EPA's determination that the label and warnings accompanying the product were adequate. Moreover, Dow contended that the approval by the EPA of Dursban 2E for registration and sale additionally barred any common-law state claim seeking damages based upon strict products liability, design defect, or breach of warranty.

The CIBA-GEIGY Corp. and the Mobay Chemical Corp. subsequently joined Dow in moving for summary judgment, similarly noting that the pesticides they manufactured were approved for registration by the EPA, and contending that FIFRA preempts a state's authority to entertain tort claims based upon inadequate warnings. In addition, the defendant American Fluoride Corp. moved for summary judgment, maintaining that as a distributor of the codefendants' products, it too was entitled to summary judgment upon the ground that the plaintiff's claims were wholly preempted by FIFRA.

In opposition to summary judgment, the plaintiff relied primarily upon the affidavit of Morris Zedeck, an expert in the field of pharmacology. Zedeck averred that the subject pesticide labels were inadequate because they contained no information or warning about the permanent effect on the nerves or muscles that could be induced by a chronic exposure, and did not advise the user to notify and or/warn those who could reasonably be expected to be present in an area which had just been treated or sprayed of the potential hazards of chronic exposure. Zedeck further opined that a manufacturer's compliance with the minimal requirements of FIFRA did not mandate a finding that its warnings were adequate. The plaintiff also submitted an excerpt from the deposition testimony of Dr. Henry Fleck, who diagnosed him as suffering from chronic toxic neuropathy caused by an extended period of exposure to chemicals.

On June 19, 1992, the Supreme Court, Westchester County, granted the defendants' respective motions for summary judgment dismissing the complaint, citing two cases of the United States Court of Appeals which had determined that State common-law claims for inadequate labeling are preempted by FIFRA (see, Papas v. Upjohn Co., 11th Cir., 926 F.2d 1019; Arkansas-Platte and Gulf Partnership v. Van Waters and Rogers Inc., 10th Cir., 959 F.2d 158). The plaintiff now appeals, urging this court to reject the view that FIFRA preempts or prohibits a person injured by exposure to pesticides from maintaining a tort action in State court for damages, even if that action includes an issue of whether the manufacturer's warnings were adequate.

II: THE FEDERAL REGULATORY SCHEME

Our analysis of the preemptive scope of FIFRA (7 U.S.C. § 136 et seq.), must begin with a consideration of the requirements of FIFRA and the goals which it is intended to achieve. As the United States Supreme Court recently observed in Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 598-601, 111 S.Ct. 2476, 2479, 115 L.Ed.2d 532, FIFRA was primarily a pesticide licensing and labeling law until 1972, when it was amended to authorize the EPA to regulate most aspects of the development, manufacture, sale, and use of pesticides (see generally, Ausness, Federal Preemption of State Products Liability Doctrine, 44 USCL Rev., 187, 213 [1993]. The 1972 amendments significantly strengthened the registration and labeling standards of FIFRA, and granted increased enforcement authority to the EPA, which had been charged with Federal oversight of pesticides since 1970 (see, Wisconsin Public Intervenor v. Mortier, supra, at 601-602, 111 S.Ct. at 2479-2480). Today, all pesticides sold in the United States must be registered with the EPA in compliance with the requirements of FIFRA and its associated regulations (see, 7 U.S.C. § 136a[a], [c].

In order to register a pesticide under FIFRA, a manufacturer must submit the pesticide's name, labeling information, and directions for use to the EPA. The EPA is then charged with the duty of determining what supporting data the manufacturer must provide concerning, inter alia, the physical and chemical characteristics of the pesticide (40 C.F.R. § 158.190). The EPA may approve a registration request only if the product can perform its intended function without "unreasonable adverse effects on the environment" (7 U.S.C. § 136a[c][5][C]. The phrase "unreasonable adverse effects on the environment", is, in turn, defined by the Act 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. § 136[bb]. At the time of registration, the manufacturer is also required to submit a proposed label to the EPA for approval (see, 7 U.S.C. § 136a[c][1][C], and the agency must ensure that the proposed label is both "adequate to protect health and the environment" (7 U.S.C. § 136[q][1][F], and "likely to...