Holyfield v. Chevron U.S.A. Inc.

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

HENRY HOLYFIELD and )

TARA HOLYFIELD, )

)

Plaintiffs, )

)

v. ) Case No. 1:20-CV-00165-JAR

)

CHEVRON U.S.A., INC., et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on Motions to Dismiss filed by Defendants Syngenta Crop

Protection, Syngenta Corporation, and Syngenta AG (collectively “Syngenta”) (Docs. 26, 47)

and Chevron U.S.A., Inc. (“Chevron”). (Doc. 31). The motions have been fully briefed, and oral

arguments occurred on January 11, 2021.

I. BACKGROUND

Plaintiff Henry Holyfield worked as an agricultural aircraft laborer from approximately

1965 to 1975. (Doc. 22 at ¶ 53). In this role, Mr. Holyfield was exposed to the pesticide paraquat

as it was applied via crop dusting. (Id. at ¶ 54). Decades later, in 2015, Mr. Holyfield was

diagnosed with Parkinson’s disease. (Id. at ¶ 57). Mr. Holyfield and his wife allege that the

exposure to paraquat caused or contributed to his development of Parkinson’s disease. (Id. at ¶

56). Plaintiffs further contend that Defendants designed, marketed, licensed, manufactured,

distributed, and/or sold paraquat during the time Mr. Holyfield was exposed and should be held

liable under Missouri law. (Id. at ¶ 8). Plaintiffs initially filed suit in state court in Missouri, but

Defendants removed the case to this Court based on diversity jurisdiction. 28 U.S.C. § 1332.

(Doc. 1). Plaintiffs’ Amended Complaint (Doc. 22) includes the following counts:

Count II: Failure to Warn

Count III: Negligence

Count IV: Breach of Implied Warranty

Count V: Loss of Consortium

In their motions to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(6), both Syngenta

and Chevron argue that all of Plaintiffs’ claims are preempted by the Federal Insecticide,

Fungicide, and Rodenticide Act (“FIFRA”). 7 U.S.C. § 136 et seq.

II. LEGAL STANDARD

When ruling on a motion to dismiss for failure to state a claim under Fed. R. Civ. P.

12(b)(6), this Court must “accept the allegations contained in the complaint as true and all

reasonable inferences from the complaint must be drawn in favor of the nonmoving party.”

Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001). To survive the motions to

dismiss, Plaintiffs’ Amended Complaint “must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While detailed factual

allegations are not necessary at this stage, Plaintiffs’ obligation to provide the grounds of their

entitlement to relief “requires more than labels and conclusions.” Twombly, 550 U.S. at 555.

Dismissal is warranted, moreover, if the Amended Complaint is “fatally flawed in [its] legal

premises and designed to fail, thereby sparing litigants the burden of unnecessary pretrial and

trial activity.” Young, 244 F.3d at 627 (citing Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)).

III. STATUTORY CONTEXT

FIFRA was enacted in 1947, but Congress adopted substantial amendments as part of the

Federal Environmental Pesticide Control Act of 1972. Pub. L. No. 92-516, 86 Stat. 973 (1972).

These amendments “transformed FIFRA from a labeling law into a comprehensive regulatory

2

all pesticides must be registered with the Environmental Protection Agency (“EPA”) before

being distributed or sold in the United States.

The EPA will register the pesticide if it determines, among other requirements, that the

pesticide will not cause unreasonable adverse effects on the environment and its label is not

misbranded. 7 U.S.C. § 136a(c)(5)(B-D). Unreasonable adverse effects on the environment

include “any unreasonable risk to man.” 7 U.S.C. § 136(bb). A label is misbranded if it contains

any false or misleading information, does not have adequate instructions for use, or omits

necessary warnings or cautionary statements. 7 US.C. § 136(q)(1). “Because it is unlawful under

the statute to sell a pesticide that is registered but nevertheless misbranded, manufacturers have a

continuing obligation to adhere to FIFRA’s labeling requirements.” Bates v. Dow Agrosciences

LLC, 544 U.S. 431, 438 (2005) (citing 7 U.S.C. § 136j(a)(1)(E)).

Critically, FIFRA establishes that States “may regulate the sale or use of any federally

registered pesticide . . . in the State, but only if and to the extent the regulation does not permit

any sale or use prohibited” by FIFRA. 7 U.S.C. § 136v(a) (emphasis added). States may not,

however, “impose or continue in effect any requirements for labeling or packaging in addition to

or different from those required” under FIFRA. 7 U.S.C. § 136v(b) (emphasis added). The core

question on these motions to dismiss, a question which has been addressed by numerous courts

in one form or another, is whether FIFRA preempts Plaintiffs’ claims.

IV. DISCUSSION

No one can sell a pesticide in the United States until the pesticide has been registered

with the EPA pursuant to FIFRA. Once the pesticide has been registered, all distribution must

1 The parties extensively discuss the issue of whether the FIFRA amendments apply retroactively, since Mr.

Holyfield was allegedly exposed to paraquat as early as 1965. Because this Court determines that FIFRA does not

case is straightforward and understandable: to hold them liable under Missouri law is

fundamentally inconsistent with the EPA’s registration of paraquat. Consistently relying on this

general principle, Defendants contend that Plaintiffs’ claims are expressly and impliedly

preempted by FIFRA and that this Court should defer to the EPA pursuant to the doctrine of

primary jurisdiction.

A. Bates

Given its central role in the parties’ briefing, it makes sense to discuss Bates explicitly

before addressing Defendants’ specific arguments. In Bates, the Supreme Court squarely

addressed the issue of FIFRA preemption and determined that States retain “ample authority to

review pesticide labels to ensure that they comply with both federal and state labeling

requirements.” Id. at 442. Bates “overturned thirteen years of precedent during which pesticide

companies enjoyed relative immunity from tort liability” by taking a “narrow view” of FIFRA

preemption. Joseph Frueh, Comment, Pesticides, Preemption, and the Return of Tort Protection,

23 YALE J. REG. 299, 299-300 (2006). The Supreme Court relied on 7 U.S.C. § 136v(a), which

provides that States “may regulate” the sale or use of federally registered pesticides. Id. at 442

(“Nothing in the text of FIFRA would prevent a State from making the violation of a federal

labeling or packaging requirement a state offense, thereby imposing its own sanctions on

pesticide manufacturers who violate federal law.”). Accordingly, per Bates, FIFRA does not

expressly preempt all state tort law liability relating to registered pesticides.

Since Bates, courts have generally held that FIFRA does not preempt state law claims

(with some exceptions). See Schoenhofer v. McClaskey, 861 F.3d 1170 (10th Cir. 2017); Indian

preempt Plaintiffs’ claims even if applied retroactively, it need not decide this question at this juncture.

4

Ellis Co., 418 F.3d 883 (8th Cir. 2005); In re Dicamba Herbicides Litig., 359 F. Supp. 3d 711

(E.D. Mo. 2019); In re Roundup Prods. Liab. Litig., 364 F. Supp. 3d 1085 (N.D. Cal. 2019);

Beyond Pesticides v. Monsanto Co., 311 F. Supp. 3d 82 (D.D.C. 2018); Blitz v. Monsanto Co.,

317 F. Supp. 3d 1042 (W.D. Wis. 2018); Rawa v. Monsanto Co., No. 4:17-CV-01252 AGF,

2017 WL 3392090 (E.D. Mo. Aug. 7, 2017); Sheppard v. Monsanto Co., Civ. No. 16-00043

JMS-RLP, 2016 WL 3629074 (D. Haw. 2016); Hardeman v. Monsanto Co., 216 F. Supp. 3d

1037 (N.D. Cal. 2016); Carias v. Monsanto Co., No. 15-CV-3677 (JMA) (GRB), 2016 WL

6803780 (E.D.N.Y. Sept. 30, 2016). But see Mirzaie v. Monsanto Co., No. CV 15-04361 DDP,

2016 WL 146421 (C.D. Cal. Jan. 12, 2016); In re Syngenta AG MIR 162 Corn Litig., 131 F.

Supp. 3d 1177 (D. Kan. 2015); Wilgus v. Hartz Mountain Corp., No. 3:12-CV-86, 2013 WL

653707 (N.D. Ind. Feb. 19, 2013). The cases finding FIFRA preempts state law claims have been

routinely and convincingly criticized. See Carias, 2016 WL 6803780, at *6.

FIFRA’s express preemption provision does provide that States “shall not impose or

continue in effect any requirements for labeling or packaging in addition to or different from

those required” under FIFRA. 7 U.S.C. § 136v(b) (emphasis added). The Bates holding carefully

follows this language. Per Bates, a State rule is preempted if it is (1) a “requirement ‘for labeling

or packaging’” and (2) “‘in addition to or different from those required’” under FIFRA. Bates,

544 U.S. at 444 (emphasis in original) (quoting 7 U.S.C. § 136v(b)). The term “requirement,” as

used in 7 U.S.C. § 136v(b), “reaches beyond positive enactments, such as statutes and

regulations, to embrace common law duties.” Id. at 443. In disposing of the instant motions, this

Court is required to follow the clear test for preemption outlined in Bates.

Defendants make two critical arguments regarding Bates. First, Defendants claim that

Bates is factually distinguishable because the Supreme Court in Bates considered whether a

on pesticide efficacy. See Bates, 544 U.S. at 440 (“Congress addressed this problem by

authorizing EPA to waive data requirements pertaining to efficacy, thus permitting the agency to

register a pesticide without confirming efficacy claims made on its label.”). Defendants argue

that the EPA has specifically affirmed paraquat’s safety and assessed evidence regarding its

connection to Parkinson’s disease over decades of review.2

The problem for Defendants is that the Supreme Court did not limit its analysis in Bates

to claims regarding pesticide efficacy. See Bourbia v. S.C. Johnson & Son, Inc., 375 F. Supp. 3d

454, 465 (S.D.N.Y. 2019) (“But Bates never stated that the state law claims at issue were not

preempted because the EPA had waived efficacy review. Rather, the Court’s discussion of

preemption was about FIFRA in general.”). In Carias, Monsanto Company made an identical

argument, but the court found that “at least some passages in Bates seem to suggest that the

Supreme Court would reject the argument that EPA’s approval of a label preempts failure-to-

warn claims concerning risks to human health.” Carias, 2016 WL 6803780, at *4-5 (citing Bates,

544 U.S. at 450); see also Crespo v. S.C. Johnson & Son, Inc., 394 F. Supp. 3d 260, 270

(E.D.N.Y. 2019) (“[T]here is nothing in Bates – or in any of the Supreme Court’s subsequent

preemption cases – that conditions the scope of preemption on the status of efficacy-data review

for the particular pesticide being challenged.”). Consistent with these other courts, this Court

sees no basis on which to limit Bates to cases regarding pesticide efficacy.

2 As Defendants note, the EPA recently performed a systematic review of the literature on paraquat and determined

“there is insufficient evidence to link registered paraquat products to any of the health outcomes investigated,

including Parkinson’s Disease, when used according to the label.” EPA, Paraquat Dichloride: Human Health,

available at http://www.epa.gov/ingredients-used-pesticide-products/paraquat-dichloride (last accessed April 12,

2021); see UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, MEMORANDUM, PARAQUAT DICHLORIDE:

SYSTEMATIC REVIEW OF THE LITERATURE TO EVALUATE THE RELATIONSHIP BETWEEN PARAQUAT DICHLORIDE

EXPOSURE AND PARKINSON’S DISEASE (June 26, 2019). The EPA also recognized, however, “potential risks to

workers who apply paraquat or enter treated fields after application,” and its most recent registration proposed to

prohibit aerial application of paraquat for all uses except cotton desiccation. Id. Mr. Holyfield was allegedly exposed

to paraquat during aerial application.

6

constitute an absolute defense to claims of mislabeling. 7 U.S.C. § 136a(f)(2) (“In no event shall

registration of an article be construed as a defense for the commission of any offense under this

subchapter.”). Defendants’ interpretation of Bates and FIFRA is fundamentally incompatible

with this language. See Gucciardi v. Bonide Prods., Inc., 28 F. Supp. 3d 383, 392 (E.D. Pa.

2014) (“Moreover, to the extent that Defendants[] contend that the mere existence of the

registration negates Plaintiffs’ claims that the Product was dangerous, they are mistaken.”).

Under the clear text of FIFRA, the label is not the law.

Second, in response to Bates, Defendants rely heavily on subsequent Supreme Court

precedent regarding the issue of preemption under other statutes. See Mut. Pharm. Co. v.

Bartlett, 570 U.S. 472 (2013) (assessing preemption under Federal Food, Drug, and Cosmetic

Act (“FDCA”)); PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) (assessing preemption under

FDCA); Riegel v. Medtronic, Inc., 552 U.S. 312 (2008) (assessing preemption under Medical

Device Amendments to FDCA). While this Court recognizes that these cases are broadly

analogous and provide some valuable guidance, particularly Riegel given the comparable

statutory preemption language, it cannot ignore the clear precedent established by Bates when

assessing preemption under FIFRA, which adopts a distinct statutory scheme. Accordingly, this

Court will proceed to address Defendants’ motions by explicitly applying the framework laid out

by the Supreme Court in Bates.

B. Express Preemption

Defendants argue that Plaintiffs’ claims are expressly preempted by FIFRA. State laws

which conflict with federal law are without effect pursuant to the Supremacy Clause. U.S.

Const., Art. VI, cl. 2; see Maryland v. Louisiana, 451 U.S. 725, 745 (1981) (“It is basic to this

relevant types of preemption: express and implied.3 Express preemption exists when Congress

preempts state law “by so stating in express terms.” Hillsborough Cty., Fla. v. Automated Med.

Labs., Inc., 471 U.S. 707, 713 (1985) (citing Jones v. Rath Packing Co., 430 U.S. 519, 525

(1977)). If complying with both state and federal law is a “physical impossibility,” or the state

law “stands as an obstacle to the accomplishment and execution of the full purposes and

objectives of Congress,” the state law is impliedly preempted. Lankford v. Sherman, 451 F.3d

496, 510 (8th Cir. 2006) (quoting Pac. Gas & Elec. Co. v. State Energy Res. Conservation &

Dev. Comm’n, 461 U.S. 190, 203-04 (1983)).

When determining the scope of a statute’s preemptive effect, the “purpose of Congress is

the ultimate touchstone.” Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963). This Court

assesses preemption, however, under the “assumption that the historic police powers of the

States [are] not to be superseded by the [federal law] unless that was the clear and manifest

purpose of Congress.” Altria Grp., Inc. v. Good, 555 U.S. 70, 77 (2008) (quoting Rice v. Santa

Fe Elevator Corp., 331 U.S. 218, 230 (1947)); see also Medtronic, Inc. v. Lohr, 518 U.S. 470,

484 (1996) (“[W]e have long presumed that Congress does not cavalierly pre-empt state-law

causes of action.”). The Court also notes the Supreme Court’s clear guidance in Bates when

undertaking a preemption analysis at the pleadings stage: “To survive pre-emption, the state-law

requirement need not be phrased in the identical language as its corresponding FIFRA

requirement; indeed, it would be surprising if a common-law requirement used the same

phraseology as FIFRA.” Bates 544 U.S. at 454.

3 There is also “field preemption,” where Congress “creates a scheme of federal regulation so pervasive that the only

reasonable inference is that it meant to displace the states.” Wuebker v. Wilbur-Ellis Co., 418 F.3d 883, 886 (8th Cir.

2005). Field preemption is clearly inapplicable here.

8

paraquat caused or contributed to Mr. Holyfield’s injuries. (Doc. 22 at ¶ 65). In Count IV,

Plaintiffs claim that Defendants “breached the implied warranty because the paraquat was not

reasonably fit for its intended use . . . and failed to function safely.” (Id. at ¶ 87). The Supreme

Court in Bates specifically held that the petitioners’ “claim for defective design . . . are not pre-

empted” because defective design duties do not constitute a requirement for labeling or

packaging. Bates, 544 U.S. at 444. Chevron acknowledges this holding explicitly. (Doc. 32 at 9

(“To be sure, the Supreme Court held in Bates that FIFRA’s express preemption provision does

not preempt true design-defect claims because such claims do not impose requirements ‘for

labeling or packaging.’”)). The Supreme Court also found that the manufacturers’ obligations “to

honor their express warranties or other contractual commitments plainly do not qualify as

requirements for ‘labeling or packaging.’” Id.

This Court is bound by both this clear precedent and the Eighth Circuit’s holding in

Wuebker v. Wilbur-Ellis Co., 418 F.3d 883 (8th Cir. 2005). In Wuebker, decided just months

after Bates, the Eighth Circuit reversed the lower court and held that various state law product

liability claims were not preempted by FIFRA. The Eighth Circuit specifically determined that

the plaintiff’s claims for “defective design, breach of implied warranty of fitness for a particular

use, [and] breach of implied warranty of merchantability” were not preempted because “the rules

underlying them do not require anything in the way of labeling or packaging.” Id. at 887.4

Because a finding of liability for defective design and for breach of an implied warranty under

4 Wuebker specifically notes that these claims were not preempted “as pleaded.” Wuebker, 418 F.3d at 887.

Defendants allege that Plaintiffs’ claims, as pleaded, are thinly veiled failure-to-warn arguments which seek to

establish requirements for labeling or packaging. While the Court acknowledges some inartful pleading by

Plaintiffs, namely the inclusion of generic failure-to-warn language in Count I, it finds that Count I “as pleaded”

makes a defective design claim standing apart from Count II, which specifically alleges failure to warn. (Doc. 22 at

¶¶ 65-72). As in Wuebker, Plaintiffs’ claims are only not preempted as plead.

not expressly preempted by FIFRA.5

In Count II, Plaintiffs allege that Defendants distributed paraquat “without adequate

instructions on safe use” and “without instructions or warnings that the paraquat was dangerous

to health and life and caused disease.” (Doc. 22 at ¶ 69). In Count III, Plaintiffs claim that

Defendants “failed to use due care” and accordingly breached their duty towards Plaintiffs.

Unlike the defective design claim, the Supreme Court held in Bates that the petitioners’ “failure-

to-warn claims are premised on common-law duties that qualify as ‘requirements for labeling or

packaging.’” Bates, 544 U.S. at 446.6 Therefore, this Court must determine whether liability for

failure-to-warn under Missouri law imposes an obligation in addition to or different from those

required under FIFRA.

In In re Dicamba Herbicides Litigation, Judge Limbaugh of this district specifically

rejected the argument that failure to warn claims were preempted by FIFRA. 359 F. Supp. 3d

711, 733-36 (E.D. Mo. 2019). While there are relevant distinctions between In re Dicamba and

this case, including that the plaintiffs had relied on statements other than the labeling, these

distinctions do not disturb the thrust of Judge Limbaugh’s holding. As in In Re Dicamba,

Defendants here have not identified any relevant language in the Amended Complaint or

5 Syngenta argues that this element of Bates has been essentially overturned in Mutual Pharm. Co. v. Bartlett, 570

U.S. 472 (2013). (Doc. 51 at 12). Even if that were the case, and defective design claims could be interpreted as

seeking to impose a requirement for labeling or packaging, Syngenta offers no evidence that Missouri law imposes

duties in addition to or different from those required under FIFRA.

6 Count III includes various allegations of negligence. This section specifically addresses the negligent failure to

warn claims. (Doc. 22 at ¶ 76(d)-(g)). As to Plaintiffs’ claim of negligence testing (Id. at ¶ 76(a)-(b)), the Supreme

Court in Bates held that such claims do not attempt to impose a requirement for labeling or packaging. Bates, 554

U.S. at 444 (“Rules that require manufacturers to design reasonably safe products, to use due care in conducting

appropriate testing on their products, to market their products free of manufacturing defects, . . . plainly do not

qualify as requirements for ‘labeling or packaging.’”).

10

to or different from those under FIFRA.

The Supreme Court made clear in Bates that FIFRA does not “pre-empt any state rules

that are fully consistent with federal requirements.” Bates, 544 U.S. at 452. Defendants have

provided no evidence whatsoever that the Missouri common law duties Plaintiffs seek to enforce

are inconsistent with FIFRA. Indeed, Defendants rely heavily on the Supreme Court’s decision

in Bartlett yet ignore its advice that “the proper inquiry calls for an examination of the elements

of the common-law duty at issue.” Bartlett, 570 U.S. at 492 (quoting Bates, 544 U.S. at 445).

Without any briefing whatsoever on the scope of the applicable common-law duties,7 this Court

simply cannot find Counts II and III expressly preempted at the pleadings stage.

C. Implied Preemption

Defendants argue that any common law duty imposed under Missouri law is impliedly

preempted by the EPA’s registration of paraquat. A state law is impliedly preempted when it is

“impossible for a private party to comply with both state and federal law, and when state law

‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of

[the relevant agency].’” Wuebker, 418 F.3d at 887 (quoting Geier v. Am. Honda Motor Co., 529

U.S. 861, 873 (2000)). “Impossibility preemption is a demanding defense.” Wyeth v. Levine, 555

U.S. 555, 573 (2009).

7 The Court takes notice that certain Missouri statutes formally adopt FIFRA standards. See MO. REV. STAT. §

281.101.2(2) (“It shall be unlawful to recommend for use, to use, or to supervise the use of any pesticide in a manner

inconsistent with its labeling required by the labeling requirements of FIFRA, Missouri pesticide use act or Missouri

pesticide registration act.”). Defendants have provided no precedent or other evidence suggesting Missouri statutes

or common law duties are broader than FIFRA.

To the extent Missouri law goes further than FIFRA, moreover, the Court notes clear guidance from Bates that such

duties would only be preempted “to the extent of that difference.” Bates, 544 U.S. at 453.

argument was before it. Bates, 544 U.S. at 435 (“In response, Dow filed a declaratory judgment

action asserting that petitioners’ claims were expressly or impliedly pre-empted by FIFRA.”);

see also Ansagay v. Dow Agrosciences LLC, 153 F. Supp. 3d 1270, 1281 (D. Haw. 2015) (That

implied preemption was raised but ignored in Bates “indicates that the Bates Court rejected

impossibility preemption sub silentio.”). Defendants’ implied preemption theory is “difficult – if

not impossible – to square with” Bates. In re Roundup Prods. Liab. Litig., 364 F. Supp. 3d 1085,

1088 (N.D. Cal. 2019); see also Bates, 544 U.S. at 458 (Thomas, J., concurring in part,

dissenting in part) (“Today’s decision thus comports with this Court’s increasing reluctance to

expand federal statutes beyond their terms through doctrines of implied pre-emption.”).

The theory is also difficult to square with the plain text of FIFRA, which provides that

states “may regulate” pesticides and that registration shall not constitute an absolute defense. 7

U.S.C. §§ 136v(a); 136a(f)(2). Bates makes perfectly clear that the EPA’s registration of

paraquat does not preclude States from holding manufacturers liable, as the “impositions of state

sanctions for violating state rules that merely duplicate federal requirements” is consistent with

FIFRA. Bates, 544 U.S. at 442. While numerous courts have considered the question, this Court

is not aware of any precedent dismissing claims based on a theory of implied preemption under

FIFRA. Instead, courts have generally recognized that EPA registration “does not represent a

finding that the [product], as labeled, can never be deemed unsafe by later federal action, or as in

this case, the application of state law.” Ansagay, 153 F. Supp. 3d at 1283 (quoting Wyeth, 555

U.S. at 592 (Thomas, J., concurring in the judgment)).

Chevron does make one unique argument worthy of distinct consideration. Paraquat “is a

discrete chemical compound consisting of a single molecule.” (Doc. 32 at 11). Therefore,

Chevron argues, paraquat cannot be redesigned by definition, and Plaintiffs’ design defect claim

12

drug is chemically incapable of being redesigned.”); see also Brinkley v. Pfizer, Inc., 772 F.3d

1133 (8th Cir. 2014) (holding design defect claims preempted by impossibility under FDCA).

The Supreme Court held in Bartlett that the only way for the defendant to escape liability for

sulindac would have been to strengthen the warning label. Id. Looking at the plain text of

FIFRA, this Court sees no language indicating that design defect claims are expressly or

impliedly preempted, even for single molecule pesticides. Instead, it is apparent that the statutory

scheme established by Congress permits state law liability even for pesticides registered by the

EPA, including those that cannot be redesigned.8

D. Primary Jurisdiction

Defendants argue that this Court should dismiss or stay this case pursuant to the doctrine

of primary jurisdiction and in deference to the EPA’s active consideration of paraquat’s

registration. The doctrine of primary jurisdiction “applies to claims ‘properly cognizable in court

that contain some issue within the special competence of an administrative agency.’” Chlorine

Inst., Inc. v. Soo Line R.R., 792 F.3d 903, 909 (8th Cir. 2015) (quoting Reiter v. Cooper, 507

U.S. 258, 268 (1993)). “The contours of primary jurisdiction are not fixed by a precise formula.”

Alpharma, Inc. v. Pennfield Oil Co., 411 F.3d 934, 938 (8th Cir. 2005); see Louis L. Jaffe,

Primary Jurisdiction, 77 HARV. L. REV. 1037, 1037 (1964) (“The so-called doctrine of primary

jurisdiction cannot be stated in the form of a rule in terms either of its analytic structure of its

incidence.”).

One clear purpose of the doctrine is to promote “consistency and uniformity” in areas

“not within the conventional experience of judges or cases requiring the exercise of

8 Given this case is at the pleadings stage, this Court also believes that any dismissal based on such technical

arguments would be premature.

605, 608 (8th Cir. 1998)). Ultimately, however, the doctrine is to be “invoked sparingly, as it

often results in added expense and delay.” Red Lake Band of Chippewa Indians v. Barlow, 846

F.2d 477 (8th Cir. 1988) (quoting United States v. McDonnell Douglas Corp., 751 F.2d 220, 224

(8th Cir. 1984)).

This Court sees no convincing reason to dismiss or stay this case pursuant to the doctrine

of primary jurisdiction. Plaintiffs seek to hold Defendants liable under Missouri tort law; this

case will not turn on the results of the EPA’s ongoing review of paraquat. Ryan v. Chemlawn

Corp., 935 F.2d 129 (7th Cir. 1991), is instructive. In Ryan, the Seventh Circuit reversed the

district court’s dismissal pursuant to the doctrine of primary jurisdiction in a products liability

case concerning a registered pesticide. The court explained: “[T]he plaintiff has alleged state

common law causes of action and remedies that are not dependent on any EPA provisions . . . .

We fail to see how this claim is any different from the thousands of other personal injury suits

filed annually alleging a design defect or inherently unsafe product that are regularly decided in

the courts.” Id. at 132; see also Bates, 544 U.S. at 452 (“[L]ay juries are in no sense anathema to

FIFRA’s scheme.”).

Courts are particularly unlikely to invoke the doctrine of primary jurisdiction where

plaintiffs seek damages as opposed to injunctive relief. “Courts refuse to defer jurisdiction if the

plaintiff is seeking damages for injury to property or person, as this is the type of relief courts

routinely consider.” Schwartzman, Inc. v. Atchison, Topeka & Santa Fe Ry. Co., 857 F. Supp.

838, 843 (D.N.M. 1994). The relief Plaintiffs seek cannot be provided by the EPA.

Defendants argue that this Court should stay or dismiss this case because the EPA is

reviewing potential connections between paraquat and Parkinson’s disease. This Court is aware

of no case since Bates in which a court has declined jurisdiction over a FIFRA-related claim

14

moreover, will not dictate the success or failure of Plaintiffs’ claims. Defendants essentially ask

this Court to disregard the states’ essential role in enforcing FIFRA and protecting its citizens

from potentially dangerous pesticides, a role formally recognized by Bates and the EPA itself.

See EPA, About Pesticide Registration, available at http://www.epa.gov/pesticide-

registration/about-pesticide-registration (last accessed April 12, 2021) (“In general, states have

primary authority for compliance monitoring and enforcing against illegal pesticide use.”). This

Court declines to invoke the sparingly used doctrine of primary jurisdiction to stay or dismiss

Plaintiffs’ state law claims.

E. Other Arguments

Defendants make two arguments unrelated to FIFRA. First, Syngenta contends that

Count IV (Breach of Implied Warranty) should be dismissed because only the purchaser of a

product may bring a cause of action for breach of implied warranty under Missouri law. See MO.

REV. STAT. § 400.2-318. Syngenta cites substantial precedent indicating that Plaintiffs’ claims

are not cognizable under Missouri law because Mr. Holyfield was not the purchaser of paraquat.

See Cowens v. Siemens-Elema AB, 837 F.2d 817, 822 (8th Cir. 1988); Leonard v. BASF Corp.,

No. 2:06-CV-33 ERW, 2006 WL 3702700, at *5 (E.D. Mo. Dec. 13, 2006).9 Chevron adds that

Count IV is duplicative of Plaintiffs’ strict liability claim. See Guilford v Boston Sci. Corp., No.

4:19-CV-00955-DGK, 2020 WL 1669279, at *4 (W.D. Mo. Apr. 3, 2020) (“Under Missouri law,

the difference between strict liability and implied warranty is conceptual since the liability

imposed for either is based in tort.”).

9 Members of a purchaser’s household may bring a claim for breach of implied warranty under Missouri law.

Leonard, 2006 WL 3702700, at *5. Mr. Holyfield’s circumstances present the somewhat novel question of whether

an employee who is also a member of the purchaser’s household (Mr. Holyfield apparently worked for his father)

can bring such a claim.

failure to plead identifiable damages. Under Missouri law, loss of consortium requires damages

independent of those of the injured spouse. Thompson v. Brown & Williamson Tobacco Corp.,

207 S.W.3d 76, 113 (Mo. Ct. App. 2006) (“Damages are calculated separately from those that

may have been awarded to the injured spouse and determined in relation to the unique damages

suffered by the loss of consortium.”); Lear v. Norfolk and Western Ry. Co., 815 S.W.2d 12, 14

(Mo. Ct. App. 1991). Syngenta also notes that Missouri law does not permit punitive damages

for loss of consortium claims. Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322, 1337 (8th

Cir. 1988); Oliver v. SL Western Lounge, LLC, No. 4:17-CV-1556 JCH, 2017 WL 2955181, at

*2 (E.D. Mo. July 11, 2017). Count V of Plaintiffs’ Amended Complaint does not identify

special damages attributable to Mrs. Holyfield and demands punitive damages.

The Court disagrees with Plaintiffs’ assessment of these arguments as raising “hyper-

technical pleading deficiencies,” particularly as to Count IV. (Doc. 42 at 15). The Court will

dismiss Counts IV and V without prejudice while providing Plaintiffs an opportunity to seek

leave to amend their complaint. The Court notes that a motion for leave to file an amended

complaint may be denied on the basis of futility. Zutz v. Nelson, 601 F.3d 842, 851 (8th Cir.

2010) (quoting Cornelia I. Crowell GST Trust v. Possis Med., Inc., 519 F.3d 778, 782 (8th Cir.

2008)) (“Denial of a motion for leave to amend on the basis of futility ‘means the district court

has reached the legal conclusion that the amended complaint could not withstand a motion to

dismiss under Rule 12(b)(6).’”).

V. CONCLUSION

Plaintiffs seek to hold Defendants liable under Missouri law for injuries allegedly caused

by Mr. Holyfield’s exposure to paraquat. Defendants argue that FIFRA preempts any finding of

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liability, especially because the EPA has supposedly determined that paraquat exposure does not

cause Parkinson’s disease. In Bates, the Supreme Court held that States may continue to impose

liability for injuries relating to pesticides so long as they do not establish requirements in

addition to or different from FIFRA. At this early stage of litigation, Defendants have not

conclusively demonstrated that any finding of liability under Missouri law would necessarily

impose a requirement for labeling or packaging in addition to or different from FIFRA.

Accordingly,

IT IS HEREBY ORDERED that the Motions to Dismiss filed by Syngenta (Docs. 26,

47) and Chevron (Doc. 31) are GRANTED in part and DENIED in part. Counts IV and V of

Plaintiffs’ Amended Complaint are hereby DISMISSED without prejudice. Defendants’

Motions to Dismiss are denied in all other respects.

IT IS FURTHER ORDERED that Plaintiffs shall have up to fifteen (15) days from the

date of this Memorandum and Order to file a Motion for Leave to File Amended Complaint.

Dated this 12th day of April, 2021.

QL. bow

UNITED STATES DISTRICT JUDGE