Welchert v. American Cyanamid, Inc.

• Decision Date: 26 June 1995
• Docket Number: No. 94-3336,94-3336
• Citation: 59 F.3d 69
• Parties: , Prod.Liab.Rep. (CCH) P 14,246 Donald WELCHERT, Rick Welchert, Jerry Welchert, Deborah Welchert, Appellees, v. AMERICAN CYANAMID, INC., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 69

59 F.3d 69

64 USLW 2080, Prod.Liab.Rep. (CCH) P 14,246

Donald WELCHERT, Rick Welchert, Jerry Welchert, Deborah Welchert, Appellees, v. AMERICAN CYANAMID, INC., Appellant.

No. 94-3336.

United States Court of Appeals Eighth Circuit.

Submitted March 13, 1995.

Decided June 26, 1995.

Mark Woollums, Davenport, IA, argued (Jean Dickson Feeney, on the brief), for appellant.

Gregory G. Barntsen, Council Bluffs, IA, argued, for appellees.

Before McMILLIAN, FAGG and HANSEN, Circuit Judges.

McMILLIAN, Circuit Judge.

American Cyanamid Co. (Cyanamid) appeals from a final judgment entered in the United States District Court for the District of Nebraska upon a jury verdict finding it liable to plaintiffs for breach of an express warranty. The jury awarded damages to plaintiffs Deborah and Jerry Welchert in the amount of $61,430.60 and to plaintiffs Donald and Rick Welchert in the amount of $55,734.25. For reversal, Cyanamid argues that the district court erred in refusing to grant its motion for judgment as a matter of law because the claims of breach of express warranty were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. Secs. 136-136y. For the reasons discussed below, we reverse.

I. BACKGROUND

The facts in the present case are largely uncontroverted. In 1989, Deborah and Jerry Welchert began raising vegetables as a commercial enterprise. To that end, they leased land in Fort Calhoun, Nebraska. The following year, Deborah and Jerry Welchert decided to lease a different tract of land. They, therefore, leased approximately 38 acres of land southeast of Blair, Nebraska. Jerry's brother, Rick, also farmed this property. Before Deborah and Jerry Welchert began farming these 38 acres, they were not told, nor did they ask, whether any chemicals had been applied to the ground which might interfere with the planting and cultivating of vegetables.

Soon after they began planting vegetables on this tract, they observed growth problems. Some time after they noticed these problems, they learned that Pursuit, a herbicide manufactured by Cyanamid, had been applied to the land in 1989. After Deborah Welchert made this discovery, someone provided her with a Pursuit Plus label. Pursuit Plus is also a herbicide manufactured by Cyanamid. They are, however, two different products. Deborah Welchert reviewed the Pursuit Plus label with her husband Jerry, and his brother, Rick. Specifically, they focused on a paragraph which stated that other rotational crops, such as vegetable crops, could be planted eighteen months after an application of Pursuit Plus. Deborah Welchert also met with a Cyanamid representative in 1990. The only statement which he remembered making to Deborah with regard to the damage to her vegetable crops was that, according to the label, it would be safe to plant after eighteen months.

Relying on the language of the Pursuit Plus label, Jerry and Deborah Welchert planted crops again in 1991 but experienced the same growth problems. Also in 1991, brothers Rick and Donald Welchert leased fourteen acres of land for the purpose of vegetable farming. In May 1989, this property was treated with Pursuit Plus. Rick never actually read the Pursuit Plus label. Rather, he relied on what Deborah had related to him regarding its contents. Donald, in turn, relied only on what Rick told him about the eighteen-month rotational crop period. The vegetables they planted in 1991 also suffered growth problems.

Plaintiffs Deborah, Jerry, Don, and Rick Welchert (the Welcherts) filed this action in the United States District Court for the Southern District of Iowa in October 1991, seeking recovery for damage to their vegetable crops allegedly caused by Pursuit and Pursuit Plus. Jurisdiction was based on diversity of citizenship. 28 U.S.C. Sec. 1332. On November 16, 1992, Cyanamid filed a motion for summary judgment on the various claims asserted in the Welcherts' complaint. On August 27, 1993, the district court found there were material facts in dispute regarding which one of the Welcherts actually read the warranty language and at what point in time, and disputed fact issues regarding the alleged unconscionability of the warranty language. Welchert v. American Cyanamid Co., Civil No. 1-91-CV-20057 (S.D.Iowa Aug. 27, 1993) (Order). The district court also held, however, that the Welcherts' claims for inadequate labeling were preempted by FIFRA. Id. at 4. The district court then transferred the case to the United States District Court for the District of Nebraska pursuant to 28 U.S.C. Sec. 1404.

On September 15, 1993, the United States Court of Appeals for the Fourth Circuit decided the case of Worm v. American Cyanamid Co., 5 F.3d 744 (4th Cir.1993) (Worm ), in which the court held that the plaintiffs' express and implied warranty claims based on a herbicide label were preempted under FIFRA. As a result of the Fourth Circuit's ruling, Cyanamid filed a motion to reconsider in the present case. The district court for purposes of clarity construed the motion as simply another motion for summary judgment. The district court held that the implied warranty claims were preempted by FIFRA, but that the express warranty claims were not. Welchert v. American Cyanamid Co., No. 8:CV93-00508 (D.Neb. Feb. 14, 1994) (Order). Cyanamid then requested certification of the issue for immediate appellate review, but the district court denied the request. After the jury returned its verdict, the district court again denied Cyanamid's renewed motion for judgment as a matter of law. Id. (Aug. 19, 1994) (Order). This appeal followed.

II. DISCUSSION

FIFRA creates a comprehensive scheme for the regulation of pesticide labeling and packaging. ¹ See Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 601, 111 S.Ct. 2476, 2479-80, 115 L.Ed.2d 532 (1991). Furthermore, all pesticides sold in the United States must be registered with the Environmental Protection Agency (EPA). ² See 7 U.S.C. Sec. 136a(a). "The objectives and purposes of FIFRA include the strengthening of federal standards, increasing EPA authority for their enforcement, and providing a comprehensive and uniform regulation of the labeling, sale, and use of pesticides." Worm, 5 F.3d at 747. FIFRA establishes an complex process of EPA review that culminates in the approval of a label under which a product may be marketed. Manufacturers must submit draft label language addressing a number of different topics, including ingredients, directions for use, and adverse effects of the products, see 7 U.S.C. Sec. 136a(c); 40 C.F.R. Sec. 152.50 & pt. 156, and a final label must be submitted to the EPA prior to registration. 40 C.F.R. Sec. 156.10(a)(6).

Section 24 of FIFRA, as amended, provides in part:

(a) In general

A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.

(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.

7 U.S.C. Sec. 136v(a), (b). At issue in the present case is the extent to which subsection (b) preempts a state law cause of action for breach of an express warranty.

The Supreme Court's decision in Cipollone v. Liggett Group, 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (Cipollone ), includes an extensive analysis of a preemption provision in the Public Health Cigarette Smoking Act of 1969 ("1969 Act"), 15 U.S.C. Secs. 1331-1340, which is substantially similar to the preemption provision in FIFRA. ³ In Cipollone, the plaintiff brought an action against three cigarette companies in connection with the death of his wife, who had lung cancer. Among his stated causes of action, the plaintiff based a claim for breach of an express warranty on many statements made in the cigarette manufacturers' advertising. Justice Stevens, in a plurality opinion joined by three other members of the Court, explained why this claim would survive preemption: "A manufacturer's liability for breach of an express warranty derives from, and is measured by, the terms of that warranty. Accordingly, the 'requirements' imposed by an express warranty claim are not 'imposed under State law,' but rather imposed by the warrantor." Id. at 525, 112 S.Ct. at 2622 (italics in original). Noting the contractual nature of express warranty claims, the plurality opinion further provided that "a common law remedy for a contractual commitment voluntarily undertaken should not be regarded as a 'requirement ... imposed under State law' within the meaning of Sec. 5(b)." Id. Accordingly, the plurality concluded that such claims were not preempted under the 1969 Act. ⁴

In Worm, the Fourth Circuit was faced with a set of facts very similar to those before us. The plaintiffs planted sweet corn on land that had previously been treated with Scepter, another Cyanamid herbicide. The Scepter label, which had been approved by the EPA, stated that corn could be safely planted eleven months after application of the herbicide. The corn, planted about a year after application, did not do well and had to be plowed under. The plaintiffs' filed a state court suit, which was subsequently removed, alleging a number of claims including a claim for breach of express warranty based on the language of the label. 5 F.3d at 746. The plaintiffs argued that the express warranty claim was not preempted by FIFRA because the label's language on the period of carryover effect ⁵ was voluntarily provided. The plaintiffs thereby attempted to employ the plurality's analysis in Cipollone to save their express warranty claim from preemption under Sec. 24(b) of FIFRA. Addressing this argument, the Fourth Circuit noted that "American Cyanamid's inclusion on its label of the information that corn could be safely planted 11 months following...