Worm v. American Cyanamid Co.

Decision Date15 September 1993
Docket NumberNo. 93-1003,93-1003
Citation5 F.3d 744
Parties24 Envtl. L. Rep. 20,120, Prod.Liab.Rep.(CCH)P. 13,651 James T. WORM, Sr.; James T. Worm, Jr.; Robert C. Worm, d/b/a Worm Brothers, d/b/a Jim Bob Farms, Copartners, Plaintiffs-Appellants, v. AMERICAN CYANAMID COMPANY, a body corporate of the State of Maine, Defendant-Appellee, and Southern States Cooperative, Incorporated, d/b/a Southern States Cooperative, Incorporated--Preston Service, a body corporate of the State of Virginia; Southern States Preston Cooperative, Incorporated, a body corporate of the State of Virginia, Defendants. National Agricultural Chemicals Association, Amicus Curiae.
CourtU.S. Court of Appeals — Fourth Circuit

Patti Ann Goldman, Public Citizen Litigation Group, Washington, DC (Brian Wolfman, Public Citizen Litigation Group, Washington, DC; Mark I. Cantor; and Delverne A. Dressel, Baltimore, MD, on brief), for plaintiffs-appellants.

Raymond G. Mullady, Jr., Piper & Marbury, Baltimore, MD, argued (William L. Reynolds and Brigit A. McCann, on brief), for defendant-appellee.

Lawrence S. Ebner, McKenna & Cuneo, Washington, DC, on brief, for amicus curiae.

Before WIDENER and NIEMEYER, Circuit Judges, and G. ROSS ANDERSON, Jr., United States District Judge for the District of South Carolina, sitting by designation.

OPINION

NIEMEYER, Circuit Judge:

In Worm v. American Cyanamid Co., 970 F.2d 1301 (4th Cir.1992) (Worm I ), we held that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. Sec. 136 et seq., does not, expressly or by implication, preempt the field of pesticide regulation or a more narrowly defined field, but it does preempt conflicting state law causes of action that impose a duty to provide a warning in addition to or different from federally established labeling requirements. We remanded this case to the district court for individual consideration of the plaintiffs' state law claims to determine whether they were preempted under the principles set forth in our ruling. On remand, the district court entered summary judgment in favor of the defendant, holding that the plaintiffs' common law claims were either preempted or unsupported by evidence sufficient to warrant proceeding to trial. This second appeal followed, and we now affirm.

I

James T. Worm, Sr., James T. Worm, Jr., and Robert C. Worm own a commercial farm in Caroline County, Maryland. In early 1987 they purchased a herbicide manufactured by American Cyanamid Company, known as "Scepter," for use on a soybean crop. The Scepter label, which had been approved by the Environmental Protection Agency (EPA) as required by FIFRA, and other promotional materials developed by American Cyanamid stated that corn could be safely planted 11 months after application of the Scepter herbicide. The Worms applied Scepter to 114 acres planted with soybeans in April and May 1987. About a year later, in May 1988, they planted sweet corn on 74 of the 114 acres.

The corn did not do well and ultimately had to be plowed under. The Worms claimed that the crop's failure was due to a "carryover effect" of Scepter. Although 11 months had passed since its application, Scepter, they contend, was still present in the soil and damaged the corn. While American Cyanamid denies that Scepter caused the damage to the Worms' corn, it has since acknowledged the possibility that the herbicide has a carryover effect beyond 11 months in drought conditions such as those that occurred in Maryland in 1987. In 1988 American Cyanamid placed an advertisement in the November edition of Farm Journal entitled, "How We're Handling the Scepter Carryover Problem," and prepared two brochures, "Drought '88: Tough Questions and Honest Answers About Scepter Herbicide Carryover," and "Statement on Scepter Carryover." It also distributed informational videotapes discussing the problem and the company's response to it. About the same time American Cyanamid submitted to the EPA a revised label addressing the risk of a more prolonged carryover of Scepter under drought conditions.

The Worms filed suit in state court, alleging five counts based on state law. In Count I they alleged (1) negligent failure to test and formulate Scepter adequately, (2) negligent manufacture of Scepter because it did not conform with announced specifications and formulations, (3) negligent marketing of Scepter because American Cyanamid knew or should have known that the directions for use in crop rotation were inaccurate, and (4) negligent failure to warn that it was not safe to plant sweet corn 11 months after Scepter's application. In Counts II, III, and IV the Worms alleged breach of express and implied warranties that corn could be planted safely 11 months after Scepter's application. In Count V they alleged strict liability for marketing Scepter in a defective condition due to inadequate warnings. After American Cyanamid removed the action to federal court, it filed a motion for summary judgment, arguing that the Worms' claims were preempted by FIFRA and the EPA's approval of the Scepter label. The district court agreed and dismissed all the state law claims, concluding categorically that they were preempted.

After we vacated that judgment in Worm I, remanding the case for individual consideration of the state claims to determine whether they were preempted, the district court reviewed the complaint and the record in light of our ruling. On Count I (alleging negligence) it found that the allegations of negligent testing, formulating, and manufacturing were not supported with "sufficient admissible evidence to create a genuine dispute of material fact" and therefore entered summary judgment on those claims in favor of American Cyanamid. The remaining allegations of negligence, it concluded, were "directed at the representations made on the Scepter label, or in the materials accompanying the product" and were therefore preempted by FIFRA. On Counts II, III, and IV (alleging breach of express and implied warranties) the court concluded that these claims were based only on Scepter's labeling materials and were therefore preempted. Finally, on Count V (alleging strict liability) the court noted that the Worms did not claim that a defect existed in the product itself, but only that "American Cyanamid's failure to provide an adequate warning of [Scepter's] carryover effects rendered it an unreasonably dangerous product." Because the claim was based on alleged inadequacies of an EPA-approved label, the court concluded that that claim, too, was preempted.

II

The Worms, urging a most narrow interpretation of FIFRA's preemptive scope, contend that (1) because American Cyanamid was free to provide warnings that would have prevented the Worms' crop failure and because FIFRA does not prohibit it from providing those voluntary warnings, a claim for damage caused by American Cyanamid's failure to provide the warning is not preempted; (2) the inadequacy of the labeling of Scepter that formed the basis for the Worms' common law claims alleging a failure to warn and breach of warranty also constitute a violation of FIFRA and therefore those claims are not inconsistent with and preempted by FIFRA; and (3) by reason of the Supreme Court's recent decision in Cipollone v. Liggett Group Inc., --- U.S. ----, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992), breach of warranty claims based on representations voluntarily made are not preempted.

In approaching these issues we begin with a review of our holding in Worm I, which construed the preemptive scope of FIFRA, 7 U.S.C. Sec. 136v(b). Section 136v(b) provides that a state may not "impose or continue in effect any requirements for labeling or packaging [herbicides] in addition to or different from those required under this subchapter" (emphasis added). In Worm I we held that the "language of Sec. 136v(b) manifestly ordains the preemption of the establishment or enforcement of any common law duty that would impose a labeling requirement inconsistent with those established by FIFRA." 970 F.2d at 1308. Thus we noted that if to comply with state law a manufacturer must violate federal law, the state law must yield. State law must similarly yield "if in complying with it, [a manufacturer] would be frustrating the objectives and purposes of federal law." Id at 1306. 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 in both intrastate and interstate commerce. Id. at 1305.

Five days after we decided Worm I, the Supreme Court decided Cipollone v. Liggett Group, Inc., --- U.S. ----, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992), 1 in which the Court considered the preemptive scope of the Federal Cigarette Labeling and Advertising Act of 1965 and the Public Health Cigarette Smoking Act of 1969, two statutes that also contain explicit language addressing the preemptive scope of their labeling requirements. Articulating a specific approach to interpreting a statute that expressly addresses preemption, the Court limited the task to first determining whether the relevant provisions reliably indicate congressional intent with regard to preemption of state authority, and second, if so, to interpreting the express language. --- U.S. at ----, 112 S.Ct. at 2618. That restrictive analysis would appear to require no change in the analysis of Worm I and the Worms do not argue that our conclusions in Worm I were incorrect or inconsistent with Cipollone. Instead, they argue that Sec. 136v(b) must be applied sufficiently narrowly to assure the continuing vitality of state common law actions based on a failure to warn that are not inconsistent with the warning requirements of FIFRA.

A review of what FIFRA does require reveals the establishment of an involved process of review by the EPA, culminating in approval of...

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