Petitioners Brief — Bates v. Dow Agrosciences LLC

FILED /

QB 933.88 seP 9 2008.

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

DENNIS BATES; JIMMY BURSON; BENNY JUDAH, doing

business as CLEARWATER FARMS; TOMMY COLEMAN;

RICHARD COX; WAYNE DAVIS; NEIL FRIESSEN; JAKE

FORESE; THOMAS FUSTON; ARTHUR GALVAN, doing business

as G-5 PARTNERSHIP; GREG HUGHES; SANDRAAND KARL

DON HUGHES doing business as JH CATTLE CO.; RUDY

KLASSEN; RONNIE LOVE; KEVIN MATHIS; BRAD PALMER;

KIRK PARRISH, doing business as K-L FARMS; JERRY PARRISH;

JoEVELYN PATTERSON and DONALD GRUBEN; STACEY

PRICE; BENNY JUDAH doing business as PROGRESSIVE

FARMS; MORRIS RUSHING, doing business as PEA-COT

FARMS; BILLY SHANNON, FLOYD STOKES; CRAIG WES7;

FRENCHIE LEE WHEELER

Petitioners,

v.

DOW AGROSCIENCES LLC,

Respondent.

On PETITION FOR A Writ oF CERTIORARI TO THE

UNITED STATES Court OF APPEALS FOR THE FirtuH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Pui WATKINS KIMBERLY S. KELLER

BetuH W. Squires Counsel of Record

PHit Warkins, P.C. THE KeL_Ler Group

700 North St. Mary’s Street 14302 Ben Brush Lane

Suite 1750 San Antonio, Texas 78248

San Antonio, Texas 78205 (210) 857-5267

(210) 225-6666

Attorneys for Petitioners

—-

t

i

QUESTION PRESENTED

Which, if any, state law crop injury claims are preempted

by the Federal Insecticide, Fungicide, and Rodenticide Act,

7 U.S.C. §§ 136-137?

li

STATEMENT PURSUANT TO RULE 29.6

None of the corporate Petitioners has a parent company

and no publicly held company owns 10% or more of the stock

of any such corporate Petitioner.

ul

TABLE OF CONTENTS

Page

TE cr ccaeddededeséccccccccess i

Statement Pursuant to Rule 29.6 ............... il

csi ceesscccbeccdoccccccscces ill

Table of Cited Authorities .............6.00005. Vv

ED Scccdcccsdcescccccccocces xii

EEE sbseccccccccccccosccccccecees l

Statement of the Jurisdiction .................. l

Statutory Provisions Involved ................. l

Statement of the Case ...........ccccccccceees l

Reasons for Granting the Petition .............. 3

DTT Pa neebeccccccccscceccececs 3

i ED cdeccceccocecccccecces 6

A. Relevant Provisions ................ 7

B. Legislative History ................ 8

C. Administrative Commentary ......... 11

Ill. This Court Should Grant Review to Reconcile

the “Jurisprudential Mare’s Nest” Regarding

Whether FIFRA Preempts State Law Tort

Tree ee eaGebeeccccccccccece 12

iv

Contents

Page

A. Pre-Cipollone FIFRA Case Law ...... 13

B. Cipollone v. Liggett Group, Inc. ...... 13

C. Post-Cipollone FIFRA Case Law ..... 14

D. Medtronic, Inc. v. Lohr ............. 16

E. Post-Medtronic FIFRA Case Law ..... 16

IV. This Court Should Grant Review to Clarify

the Proper Analysis in Determining Which,

if Any, State Tort Claims Are Preempted by

PUES ednecaneecdssnsasdsednwtseceas 19

A. The Common Aims Test ............ 19

B. The Bificacy Test ...........ccccee 22

C. The Risk-Utility Test ............... 22

D. The Label-Based Test .............. 24

E. The Inducement Test ............... 25

V. The Particular Disposition and Facts of This

Case Present This Court with the Opportunity

to Finally Resolve the Conflict Surrounding

FIFRA’s Preemption Clause. ............. 27

GERI 0 ccscdcdcccdéucsisddidiscasbeiece 30

Vv

TABLE OF CITEDAUTHORITIES

Page

Cases: °

Am. Cyanimid Co. v. Geye, 79 S.W.3d 21 (Tex. 2002),

cert. denied, 123 S. Ct. 2637 (2003) ......... passim

Andrus v. AgrEvo USA Co., 178 F.3d 395 (Sth Cir.

SOUED Sececndesecescseccedsicdcsacescuse passim

Ark.-Platte & Gulf P ship v. Van Waters & Rogers,

Inc., 981 F.2d 1177 (10th Cir. 1993) ..... 4, 14, 15, 24

Arnold v. Dow Chem. Co., 110 Cal. Rptr. 2d 722

Se GEG EEE Gcdaccevdccdccusesncdas 19

Bice v. Leslie's Pool Mart, Inc., 39 F.3d 887

SE SUED 66 phbebeddededbddecaceseoees 15

Brown v. Chas. H. Lilly Co., 985 P.2d 846 (Or. Ct.

Ba GES 60 kc cncendecsccececcpecccsceces 19, 21

Burke v. Dow Chem. Co., 797 F. Supp. 1128

ls HEU 600 ceenecescevecesenesecens 15

Chem. Specialties Mfrs. Ass'n v. Allenby, 958 F.2d

Fe ED HEED cencccescnccesccvenscess 25

Ciba-Geigy Corp. v. Alter, 834 S.W.2d 136 (Ark.

St gcacuedekebaqeeedééeeeeeceeseececes 6, 21

TTTTITITITITITITITT LITT passim

Cox v. Velsicol Chem. Corp., 704 F. Supp. 85

PL CED ocdnedécsncoesconesdecbecss 13

vi

Cited Authorities

Page

CSX Transp., Inc. v. Easterwood, 507 U.S. 658

DE cedensdssnahédedudcueesesececennsans 8

Etcheverry v. Tri-Ag Serv., Inc., 993 P.2d 366

Da 6éncbeddeceéannenntdbeddonsess passim

Eyl v. Ciba-Geigy Corp., 650 N.W.2d 744

(Neb. 2002), cert. denied, 123 S. Ct. 2646 (2003)

$bn660684666065050006000006b06 Reds bCbdas 18

Ferebee v. Chevron Chem. Co., 736 F.2d 1529

ete Ge SUE cdededeuscescoeestesenedes passim

Fisher v. Chevron Chem. Co., 716 F. Supp. 1283

SSE SED wéncoehhcsuscecadacssncdes 15

Grenier v. Vt. Log Bldgs., Inc., 96 F.3d 559 (1st Cir.

ED ensddacddabineseessduvesecusushabes 4,14

Goodyear Atomic Corp. v. Miller, 486 U.S. 174

SED addneeededeessctneoesosesedstentdees 9

Gorton v. Am. Cyanamid Co., 533 N.W.2d 746

DUD SEED adecvenseceececocenedseseneese 24, 25

Hawkins v. Leslie’ Pool Mart, Inc., 184 F.3d 244

SE SED Gaddecneddéeuesees ddendees 4, 17,24

Jack v. Orkin Exterminating Co., No. 97-CV-7012

(JG), 2001 WL 25641 (E.D.N.Y. Jan. 5,2001).. 17

Johnson v. Monsanto Chem. Co., 129 F. Supp. 2d

SP ED ocbseuesecsceseasecused 17

vil

Cited Authorities

Page

King v. E.1. Dupont De Nemours & Co., 996 F.2d

SOE GED ncuueeccveccevesecdsess 14

Kuiper v. Am. Cyanamid Co., 131 F.3d 656 (7th Cir.

DD ‘eenasbecsekesbebdandaseedeesneses 4, 24, 25

Lowe v. Sporicidin Int'l, 47 F.3d 124 (4th Cir. 1995)

(ieeneebeeeddkesdddopuaseuasbeceeeentaee 4,24

Lowe's Home Centers, Inc. v. Olin Corp., 313 F.3d

gs GS ere ee 16

MacDonald v. Monsanto Co., 27 F.3d 1021 (Sth Cir.

DD eidenddeeceuessesdeepocenseteaceces 25, 26

Mann v. H.W. Anderson Prods., Inc., 676 N.Y.S.2d

658 (N.Y. App. Div. 1998) pondesousdeesteuce 21

McAlpine v. ey ware Ag. Co., 16 P.3d 1054

SE DEED aecendnedensccccceusseecnséeds 17, 20

McAlpine v. Rhone-Poulenc Ag. Co., 947 P.2d 474

PE PEED coccseceesscoseesecesés 17-18, 19, 20

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) .... passim

Nathan Kimmel, Inc. v. DowElanco, 64 F. Supp. 2d

Fe eG HEED ec ccccceccccsoscecsocess 17

Nat'l Bank of Commerce, of El Dorado, Ark. v. Dow

Chem. Co., 165 F.3d 602 (9th Cir. 1999) ...... 16

Netland v. Hess & Clark, Inc., 284 F.3d 895 (8th Cir.

2002), cert. denied, 537 U.S. 949 (2002) ..... 4, 6, 28

vill

Cited Authorities

Page

Papas v. Upjohn Co., 985 F.2d 516 (11th Cir. 1993)

paeeeeesebbdsenssessesesenseneonendesl 4, 15,24

Papas v. Upjohn Co., 926 F.2d 1019 (11th Cir. 1991),

vacated sub nom. 505 U.S. 1215 (1992) ....... 15

Papike v. Tambrands Inc., 107 F.3d 737 (9th Cir.

8 PORT T TTT TTT iT eee Tee 23

Quest Chem. Corp. v. Elam, 898 S.W.2d 818

DE GHEE daducésddeokdwnebsboseessatane 18

Roberts v. Dow Chem. Co., 702 F. Supp. 195

a SE 65006s00NndnSdesdedaecusdde 21

Ruiz-Guzman v. Amvac Chem. Corp., No. 98-35088,

2000 WL 1763212 (9th Cir. Nov. 28, 2000) ....22, 23

Ruiz-Guzman v. Amvac Chem Corp., 7 P.3d 795

POLED ereccceedle sescecdcseabéwesce 23

Shaw v. Dow Brands, Inc., 994 F.2d 364 (7th Cir.

PEED dubscancsedsgccbencdcéesbccadiusews 14, 24

Sleath v. W. Mont Home Pealth Servs., Inc., 16 P.3d

1042 (Mont. 2000), cert. denied sub nom. Dow

Agrosciences LLC v. Sleath, 534 U.S. 814 (2001)

ix

Cited Authorities

Page

Sullivan v. Stroop, 496 U.S. 478 (1990) ......... 12

Sun Valley Packing v. Consep, Inc., 114 Cal. Rptr.

2d 237 (Cal. Ct. App. 2001) ......... cece eee 17,19

Taylor AG Indus. v. Pure-Gro, 54 F.3d 555 (9th Cir.

SED: aececescibecsosresessceseseeess 4, 6, 15, 17

Tyler v. Dow Chem. Co., Inc., 683 N.Y.S.2d 619

(N.Y. App. Div. 1996) ......ccccccccccsvcees 19

Villari v. Terminix Int'l, Inc., 692 F. Supp. 568

A DU DEED co ccescecesccecenccscceesce 21

Welchert v. Am. Cyanamid, Inc., 59 F.3d 69 (8th Cir.

SUED ccbecsessdccvescocccestedeséccesone 15

Wilson v. Chevron Chem. Co., 1986 WL 14925

(S.D.N.Y. Dec. 17, 1986) ......... eee ee eens 13, 21

Wis. Pub. Intervenor v. Mortier, 501 U.S. 597 (1991)

ceeneded bade duce tcecsesecescoseeseues 6, 8, 10

Worm v. Am. Cyanamid Co., 5 F.3d 744 (4th Cir.

PPP PFPTTTTTTITTTTTT TTT TTT TTT Tee 26

Wright v. Dow Chem. U.S.A., 845 F. Supp. 503

CED. TEM. BOGGD oc cccccccccccccccccccoses 15

Yee v. City of Escondido, 503 U.S. 519 (1992) .... 29

x

Cited Authorities

Page

Statutes:

PI BOD aivckc sks shvcc.cccnucavens: i, 7

FO SE Gh eGeddneduesccecddndaes 7

F as OP CUED bcc neecuccscucesscces 23

PO BI 6 ois ven cvcvetencustaicacxs 23

FO PE ws hash eeeis bh ine tebebesieess l

Fl CE ii vakaWed ceeds dnedwer'esases 8

FE EEE R066 6adaceucaweosavens 3, 4, 8,14

APRS ERE PE pt aa 13

Sr ee EE ie kaki Ware kewewaNondacnes 14

Foe ss coekiduiidecen cgi 1

ND ohn 654 donnudecansseeuveevads 29

Legislative History:

H.R. Rep. No. 92-511 (1971), reprinted in 1972

DP OEE 64h evecbeseshescecdecée< 10

S. Rep. No. 92-838 (Supplemental Report) (1972),

reprinted in 1972 U.S.C.C.A.N. 3993 ......... 10

S. Rep. No. 92-970 (1972), reprinted in 1972

Fe A re eee

xi

Cited Authorities

H.R. Conr. Rep. No. 92-1540, reprinted in 1972

FE ES a ng er

H.R. Rep. No. 95-343 (1977), reprinted in 1978

I SUPE ch da eevedecienadavsesess

H.R. Rep. No. 95-663 (1977), reprinted in 1978

OEE ‘osc cic itebesedessones sae

Federal Environmental Pesticide Control Act of

1971: Hearings Before the House Comm. on

Agric. and Came, $ CISTI)... cc cccccvcscese

Federal Environmental Pesticide Control Act of

1971: Hearings Before the Subcomm. on Agric.

Research of the Sen. Comm. on Agric. and

Forestry, 92nd Cong. (1971) .............0055

Federal Environmental Pesticide Control Act of

1971: Hearings Before the Subcomm. on Agric.

Research of the Sen. Comm. on Agric. and

Forestry, 92nd Cong. (1972) .............4..

Federal Environmental Pesticide Control Act of

1971; Hearings Before the Subcomm. on the Envt.

of the House Comm. on Commerce, 92nd Cong.

SED o6Nente detec dnstdeddssncenereesases

Regulations for the Enforcement of the Federal

Insecticide, Fungicide, and Rodenticide Act;

Proposed Registration, Reregistration, and

Ciassification Procedures, 47 Fed. Reg. 40,659

yf rere errr tt

Page

9-10

xii

Cited Authorities

Page

Amicus Briefs:

Brief of Amicus Curiae the United States on Petition

for a Writ of Certiorari, Am. Cyanamid Co. v.

Geye, 79 S.W.3d 21 (Tex. 2002), cert. denied,

123 S. Ct. 2637 (2003) (No. 02-367) ...... 5, 7,21, 28

Brief of Amicus Curiae the United States, Etcheverry

v. Tri-Ag Serv., Inc., 993 P.2d 846 (Cal. 2000)

SE DEO Kdouceddadeadedwebdetusseees passim

Brief of Amicus Curiae the United States, Hart v.

Bayer Corp., 199 F.3d 239 (Sth Cir. 2000)

ED nd neces etdiebbakiaeeen 21

Other Authorities:

RESTATEMENT (THIRD) OF Torts § 2 cmt. f, at 24

SE chk bud eadnueeseNeensenbanks cones 23

OFFICE OF PesticiIpE ProGrams, U.S. Evtt. Pror.

AGENCY, PESTICIDE REGULATION Notice 96-4

Dd otdetedbetesteuuenbenleeace 4

CAROLINE S. GLEATON & Cart G ANDERSON, Facts

About Texas & U.S. Agriculture, The Texas

Cooperative Extension, Dept. of Agricultural

Economics. The Texas A&M University System

SD ines padwvinadeudeddeveudivnctadeaes 5

xi

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States Court

Of Appeals For The Fifth Circuit Filed June 11,

REE eee SE ER Ee er Oe la

Appendix B — Order Of The United States District

Court For The Northern District Of Texas,

Lubbock Division Dated And Filed June 3,

a tne a ee eee ee ae Te 2la

l

Petitioners respectfully petition for a writ of certiorari to

review the judgment of the United States Court of Appeals for

the Fifth Circuit in this case.

OPINIONS BELOW

The district court’s opinion (per Cummings, D.J.) granting

respondent’s summary judgment motion (Appendix (“Pet.

App.”) 21a-31a) is published at 205 F. Supp. 2d 623. The opinion

of the court of appeals (per Feldman, D.J. (District Judge of the

Eastern District of Louisiana, sitting by designation), joined by

Garwood and Higginbotham, JJ.) affirming (Pet. App. 1a-20a)

is published at 332 F.3d 323.

STATEMENT OF THE JURISDICTION

The court of appeals entered its order and opinion on June

11, 2003. Petitioners invoke this Court’s jurisdiction under 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

7 U.S.C. § 136v provides as follows:

Authority of States

(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.

STATEMENT OF THE CASE

The need for clarification by this Court in this area of federal

preemption has never been more evident than in the facts

presented by this case. Petitioners are farmers from west and

northwest Texas who purchased and applied Strongarm to

prevent weeds in their peanut crops. Strongarm, a recently

2

released herbicide manufactured by Dow Agrosciences LLC

(“Dow”), was the only herbicide applied to the farmers’ crops

in the 2000 growing season. After each farmer experienced

stunted peanut growth and reduced crop yield, they retained

counsel to prepare a state lawsuit in the various counties where

the farmers resided. Pretrial discovery indicated that Strongarm

causes injury to peanut roots in soils with pH levels of 7.0 or

greater, and that before the herbicide’s release, Dow was aware

of the harmful effect of applying Strongarm to peanuts grown

in the high pH-level soils of Texas, New Mexico, and Oklahoma.

The Texas Deceptive Trade Practices Act (“DTPA”) governs

such claims and requires a plaintiff to give a defendant sixty

days notice of the complaint before filing suit. After receiving

the notice required by state law, and during the sixty day period

in which the farmers’ were prohibited from filing suit, Dow

filed a declaratory judgment action in federal district court in

Lubbock, Texas for the sole purpose of declaring the validity of

its affirmative defenses. The farmers contested the federal court’s

jurisdiction and filed a motion to dismiss. Upon denial of that

motion, the farmers filed a counterclaim, raising the state law

tort claims of breach of warranty, fraud, defective design,

negligence, and violations of the DTPA against Dow. The district

court dismissed the farmers’ claims on motion for summary

judgment by Dow, finding the state law tort claims were

preempted by the Federal Insecticide, Fungicide, and

Rodenticide Act (“FIFRA”).

The farmers appealed the ruling to the United States Court

of Appeals for the Fifth Circuit, arguing that the district court

lacked jurisdiction and that FIFRA did not preempt their state

law tort claims. The Fifth Circuit affirmed. Regarding the

jurisdiction challenge, the court held that jurisdiction was proper

because the amount in controversy for each farmer exceeded

$75,000. The court also held that although Dow engaged in

some degree of forum shopping, the district court correctly

conducted its abstention analysis under the Declaratory

Judgment Act. Regarding the FIFRA issue, the Fifth Circuit

3

held that because liability on these claims would induce Dow

to change its product or label, the farmers’ causes of action were

label-related and thus, expressly preempted.

The farmers respectfully petition this Court to review the

holding of the Fifth Circuit.

REASONS FOR GRANTING THE PETITION

Petitioners respectfully request this Court grant their

Petition for Writ of Certiorari to clarify the confusion

surrounding the preemption clause in FIFRA. Relevant case law

conflicts in two ways. First, federal and state courts are at odds

regarding whether FIFRA’s preemption clause, found at 7 U.S.C.

§ 136v(b), preempts state law tort claims. Second, among the

courts holding that FIFRA does preempt tort claims, there exists

disagreement as to the appropriate analysis to apply in

determining which, if any, tort claims are preempted by the

clause. The lack of clarity has left the judiciary struggling to

interpret the ambiguous statutory language. After two decades

of conflicting case law, the issue has sufficiently percolated

throughout the judicial system without resolution, necessitating

guidance from this Court.

I. Introduction

This case presents this Court with the proper disposition

and set of facts with which it may resolve the plethora of

contradictory case law regarding the scope of the preemption

clause in FIFRA. Since Congress enacted FIFRA, the judiciary

has struggled to interpret the preemption provision, section 1 36v,

leadyig to a “jurisprudential mare’s nest.”' These opinions,

attempting to apply this Court’s mandates in Cipollone v. Liggett

1. A substantial body of federal and state case law conflicts on the

issue cf whether FIFRA completely preempts tort law claims. Compare

Dow Agrosciences LLC v. Bates, 332 F.3d 323, 333 (Sth Cir. 2003)

(holding FIFRA preempts state law tort claims), and Etcheverry v. Tri-

Ag Serv., Inc., 993 P.2d 366 (Cal. 2000) (same), with Ferebee v. Chevron

Chem. Co., 736 F.2d 1529 (D.C. Cir. 1984) (holding FIFRA does not

preempt state law tort claims), and Am. Cyanimid Co. v. Geye, 79 S.W.3d

21 (Tex. 2002) (same).

4

Group, Inc., 505 U.S. 504 (1992) and Medtronic, Inc. v. Lohr,

518 U.S. 470 (1996), have resulted in a vast array of holdings

aad a variety of analyses applied in the interpretation of the

FIFRA preemption clause. A majority of federal courts hold

that FIFRA preempts state law tort claims,’ while many state

courts, protective of their common law claims, hold the

opposite.’ In essence, the confusion surrounding FIFRA has

pitted federal judge:. ag» inst state judges.

The long-standing controversy over the breadth of FIFRA’s

preemption clause prompted the Environmental Protection

Agency (“EPA”), the agency authorized to enforce FIFRA, to

speak out as to its interpretation of Congress’s intent. OFFICE OF

Pesticipe Procrams, U.S. EvtL. Prot. AGENCY, PESTICIDE

REGULATION Notice 96-4 (June 3, 1996). When its voice went

unheeded, the EPA entered the judicial fray by filing an amicus

brief in conjunction with the Office of the Solicitor General.‘

In this brief, the EPA and the Solicitor General aligned with the

state courts calling for a narrow interpretation of FIFRA’s

preemption clause. Recently, however, the Solicitor General

2. Several circuit courts have held that section 136v(b) expressly

preempts any label-related damages claims, including those based upon

failure to warn. See Netland v. Hess & Clark, Inc., 284 F.3d 895

(8th Cir. 2002); Hawkins v. Leslie's Pool Mart, Inc., 184 F.3d 244

(3d Cir. 1999); Andrus v. AgrEvo USA Co., 178 F.3d 395 (Sth Cir. 1999);

Kuiper v. Am. Cyanamid Co., 131 F.3d 656 (7th Cir. 1997), Grenier v.

Vt. Log Bidgs., Inc., 96 F.3d 559 (ist Cir. 1996); Taylor AG Indus. v.

Pure-Gro, 54 F.3d 555 (9th Cir. 1995); Lowe v. Sporicidin Int'l, 47 F.3d

124 (4th Cir. 1995); Papas v. Upjohn Co., 985 F.2d 516 (11th Cir. 1993);

Ark.-Platte & Gulf P ship v. Van Waters & Rogers, Inc., 981 F.2d 1177

(10th Cir. 1993).

3. See, e.g., Geye, 79 S.W.3d at 29; Sleath v. W. Mont Home Health

Servs., Inc., 16 P.3d 1042 (Mont. 2900), cert. denied sub nom. Dow

Agrosciences LLC v. Sleath, 534 U.S. 814 (2001).

4. Brief of Amicus Curiae the United States, Eicheverry v.

Tri-Ag Serv., Inc., 993 P.2d 846 (Cal. 2000) (No. 98-127) (filed on behalf

of the EPA and the Environment and Natural Resources Division of the

U.S. Department of Justice).

5

alone filed an amicus brief, asserting that it had changed its

position and that it agreed with the majority of federal cases

holding that FIFRA preempts state law tort claims for failure to

warn. See Brief of Amicus Curiae the United States on Petition

for a Writ of Certiorari, Am. Cyanamid Co. v. Geye, cert. denied,

123 S. Ct. 2637 (2003) (No. 02-367). The federal and state

judiciary, along with manufacturers, retailers, and consumers

of pesticides, are equally perplexed as to whether FIFRA

preempts state law tort claims. This confusion leads to harm

across jurisdictional lines in every state.

The need for review by this Court is underscored by the

legal landscape in Texas, one of the largest agricultural-

production states.* The opinion handed down by the Fifth Circuit

in this case directly contradicts the opinion of the Supreme Court

of Texas. In 2002, the Supreme Court of Texas ruled that FIFRA

does not preempt the crop injury claims of strict liability, breach

of express and implied warranty, and other violations of the

Texas Deceptive Trade Practices Act. See Geye, 79 S.W.3d at

29. Importantly, the Geye opinion pitted Texas against another

agricultural production giant, the State of California, which

previously ruled that such claims were preempted by FIFRA.

Etcheverry, 992 P.2d at 377. In the case before this Court, the

Fifth Circuit rejected the analysis of the Supreme Court of Texas

in Geye and held that FIFRA preempts the same crop injury

claims. Bates, 332 F.2d at 330 (Sth Cir. 2003).

Accordingly, as the law stands in the State of Texas, a

plaintiff suing in state court is permitted to proceed on crop”

damage claims, whereas had the plaintiff filed the same suit in

federal court or should the case be removed, the claims are

preempted as a matter of law. As a result, plaintiffs and

defendants alike ave encouraged to forum shop because venue

5. Caroune S. Gieaton & Cari G. Anperson, Facts About Texas

& U.S. Agriculture, The Texas Cooperative Extension, Dept. of

Agricultural Economics, The Texas A&M University System (2002)

(stating that California and Texas lead the nation in farm receipts and

market value of agricultural products sold).

6

of the suit is outcome determinative. Furthermore, the problems

caused by forum shopping are compounded due to the unique

facts of this case, where Dow relied on the Declaratory Judgment

Act to forum shop and “strike first,” securing the favorable

federal venue during the time the farmers complied with the

state law requirements of providing Dow with sixty days notice

of their claims. Bates, 332 F.3d at 324.

Texas is not the only state to suffer from conflicting FIFRA

jurisprudence. Compare Sleath, 16 P.3d at 1042 (Mont. 2001)

(holding FIFRA does not preempt Montana state law damages

actions), and Ciba-Geigy Corp. v. Alter, 834 S.W.2d 136 (Ark.

1992) (recognizing that strict liability, negligence, breach of

warranty, and misrepresentation causes of action under Arkansas

state law not preempted by FIFRA), with Taylor, 54 F.3d at 562

(9th Cir. 1995) (preempting state law tort claims for strict

liability, negligent testing, and breach of warranty), and Netland,

284 F.3d 899-900 (8th Cir. 2002) (finding preemption of state

law strict liability, negligence, and failure to warn claims). Until

this Court provides guidance to define where FIFRA falls in the

continuum between its holdings in Cipollone and Medtronic,

all parties involved in pesticide manufacturing, selling, and

usage will suffer from the maze of conflicting case law.

Moreover, throughout this time of confusion, FIFRA’s goals of

uniformity and protection of health are eviscerated.

The farmers respectfully request this Court grant this Petition

for Writ of Certiorari to resolve the conflict created by the lower

courts.

Il. History of FIFRA

FIFRA was originally passed as a “labeling statute” in 1947.

Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 601 (1991). Since

that time, Congress has strengthened the provisions of FIFRA

to address health and safety concerns regarding pesticides. /d.

The current version of FIFRA effectuates a regulatory scheme

authorizing the EPA to control the labeling, marketing, and

selling of pesticides. /d.

A. Relevant Provisions

Under FIFRA, a pesticide may not be sold in the United

States until it is registered with and its labels approved by the

EPA. 7 U.S.C. §§ 136-137. After the enactment of the 1972

amendments, however, the EPA requested that Congress

eliminate the requirement that it review the efficacy’ of a product

during the labeling regulation because the approval process was

overly cumbersome. H.R. Rep. No. 95-343 (1977), reprinted in

1978 U.S.C.C.A.N. 1974 (statement of EPA Administrator

Douglas M. Costle). In describing the EPA’s burden, the

House Agriculture Committee stated, “The registration and

reregistration process, which is the foundation of the program,

has come to a virtual halt.” H.R. Rep. No. 95-663 (1977),

reprinted in 1978 U.S.C.C.A.N. 1991.

Congress reacted to the EPA’s concerns by amending FIFRA

to permit the EPA to waive the inquiry into product efficacy

and limit its review only to the propriety of the label:

Approval of registration

In considering an application for the registration of

a pesticide, the Administrator may waive data

requirements pertaining to efficacy, in which event

the Administrator may register the pesticide without

determining that the pesticide’s composition in such

as to warrant proposed claims of efficacy.

7 U.S.C. § 136a(c)(5). Since the enactment of section 136a(c)(5),

the EPA has waived efficacy inquiries and limited its review to

the propriety of the product label. As such, because FIFRA

contains no private cause of action, state law tort suits are the

only legal vehicle serving to regulate the efficacy of pesticides.

6. The term “efficacy” has been given an assortment of meanings

by various courts. As defined by the EPA, “efficacy” has two components:

product performance (whether the product controls the target pest) and

phytotoxicity (whether the product harms the target crop). Brief of

Amicus Curiae the United States, Etcheverry v. Tri-Ag Serv., Inc., 993

P.2d 846 (Cal. 2000) (No. 98-127).

Along with the provisions governing the labeling

procedures, FIFRA also contains a preemption clause, limiting

the rights of state courts in the area of pesticide labeling

regulation. See 7 U.S.C. § 136v(a)-(b). These provisions are at

the center of this controversy among federal courts, state courts,

and the EPA. Specifically, courts have split over whether

Congress intended to encompass state law tort claims within

the scope of FIFRA’s preemption clause.

As this Court has instructed, the “task of statutory

construction must focus on the plain wording of the clause,

which necessarily contains the best evidence of Congress’

preemptive intent.” CSX Transp., Inc. v. Easterwood, 507 U.S.

658, 664 (1993). This Court has also emphasized that where

the regulation contains express preemptive provisions, it is

improper to infer a Congressional intent to preempt state law

tort claims. Cipollone, 505 U.S. 504. Subsection (a) of FIFRA

provides that a “State may regulate the sale or use of any federally

registered pesticide . . . but only if and to the extent the regulation

does not permit any sale or use prohibited by this subchapter.”

7 U.S.C. § 136v(a). In addition, subsection (b) provides:

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.

Id. § 136v(b). Since the enactment of FIFRA, the judiciary has

speculated as to Congress’s intent regarding the preemption of

state tort claims.

B. Legislative History

Because there is no clear expression as to whether Congress

intended to preempt state law tort claims by enacting FIFRA,

courts often turn to FIFRA’s legislative history as a guide to

interpreting the provision. In 1991, this Court reviewed the

legislative history of FIFRA. Mortier, 501 U.S. at 609-10. Before

9

drafting the 1972 amendment, Congress held twenty-five days

of hearings and issued several committee reports. Significantly,

throughout the hearings and committee reports, there is no

mention of FIFRA serving to preempt state law tort claims.

Because Congress was aware that consumers regularly brought

state tort claims against pesticide manufacturers, it is absurd to

infer that Congress intended to extinguish these ongoing causes

of action without express mention in either the statutory language

or the legislative history. See Goodyear Atomic Corp. v. Miller,

486 U.S. 174, 185 (1988) (stating the court should presume

that Congress is aware of the current legal landscape when it

acts); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251 (1984)

(noting the unlikelihood that Congress would ban plaintiffs’

claims without comment).

Similarly, debate surrounding the amendment’s enactment

indicates that Congress intendec to “not affect tort liability”

During the hearings, General Counsel for the EPA emphasized

that states play a “major and continuing role in pesticide

regulation” and that the EPA:

wish[es] to encourage and not supplant these efforts

by providing that States may prohibit the use of a

particular pesticide within their jurisdiction even if

the pesticide is registered under the Federal authority.

States thus are not precluded from imposing stricter

standards or added requirements, but they may not

permit any sale or use of a pesticide which is

prohibited under the authority of the Act.

Federal Pesticide Control Act of 1971: Hearings Before-the

House Comm. on Agric., 92nd Cong. 8 (1971). The EPA went

on to state in the hearing, without objection, that FIFRA “does

not affect tort liability.” /d. at 42; see also Federal Environmental

Pesticide Control Act of 1971: Hearings Before the Subcomm.

on Agric. Research of the Sen. Comm. on Agric. and Forestry,

92nd Cong. (1972); Federal Environmental Pesticide Control

Act of 1971: Hearings Before the Subcomm. on the Envt. of the

House Comm. on Commerce, 92nd Cong. (1972); Federal

10

Environmental Pesticide Control Act of 1971: Hearings Before

the Subcomm. on Agric. Research of the Sen. Comm. on Agric.

and Forestry, 92nd Cong. (1971).

As noted by this Court, the Committee Reports underlying

FIFRA’s preemption clause are contradictory at best. Mortier,

501 U.S. at 609-10. On the one hand, the Senate Commerce

Committee drafted a report in which an entire section was

entitled, “Authority of States” indicating that the intent of the

bill was “to leave to the States and local gevernments the

authority to impose stricter regulations on pesticides [sic] use

than that [sic] required under the Act.” S. Rep. No. 92-970,

at 44 (1972), reprinted in 1972 U.S.S.C.A.N. 3993, 4092.

The report also contained a section entitled, “Authority of Local

Governments to Regulate the Use of Pesticides.” /d. at 27.

This section noted local governments should be given the

authority to regulate the sale or use of a pesticide beyond the

requirements imposed by state and federal authorities under the

pending legislative scheme. See id.

On the other hand, the report of the Senate Committee on

Agriculture and Forestry noted that local governments should

not regulate pesticides in any manner. S. Rep. No. 92-838, at 16

(1972), reprinted in 1972 U.S.C.C.A.N. 3993, 3993. However,

the report also stated that enforcement of FIFRA would be

enhanced by “authorizing cooperation with States.” /d. This

Court, in reviewing FIFRA’s legislative history concluded that

these two committees, which were primarily responsible for the

language in FIFRA, never resolved their differences regarding

the scope of FIFRA’s preemption. Mortier, 501 U.S. at 609-10;

see also H.R. Conr. Rep. No. 92-1540, reprinted in 1972

U.S.C.C.A.N. 3993, 4130; S. Rep. No. 92-838 (Supplemental

Report) (1972); S. Rep. No. 92-970 (1972), reprinted in 1972

U.S.C.C.A.N. 3993, 4092; H.R. Rep. No. 92-511 (1971),

reprinted in 1972 U.S.C.C.A.N. 3993.

“dl

C. Administrative Commentary

The EPA, the agency with regulatory power under FIFRA,

has been outspoken as to Congress’s intent regarding the scope

of the preemption clause. As previously noted, the EPA issued

a report in 1996 stating that courts were misinterpreting FIFRA’s

preemption clause. Pesticipe REGULATION Notice 96-4. Most

significantly, the EPA emphasized that it does not evaluate a

pesticide’s efficacy prior to approval. With Congress’s consent,

the EPA has waived inquiries into efficacy, partially because it

believed that state tort law would ensure the accuracy of

statements regarding a product’s efficacy. That report stated,

This notice explains EPA procedures in approving

pesticide labels. . . . EPA is issuing this notice at this

time to correct a misunderstanding regarding the

FIFRA label approval process and efficacy claims

that is reflected in a series of court decisions

concerning the preemptive effect of FIFRA. .. . EPA

has acted under this authority to waive, by regulation,

data requirements as to efficacy issues for all

agricultural pesticides [sic]. . . . [A]griculture [sic]

pesticides are “effectively regulated by the

marketplace,” and. . . waiving review of the efficacy

of agricultural pesticides in the registration process

would enable the Agency to focus of [sic] its

“primary mandate under FIFRA” investigating

“the health and safety aspects of pesticides.”

Id. The EPA went on to quote 47 Fed. Reg. 40,659, 40,661

(Sept. 15, 1982), stating that private tort-based actions ensure

that pesticide manufacturers sell efficacious products and that

“pesticide producers are aware that they are potentially subject

to damage suits by the user community if their products prove

ineffective in actual use.” Jd.

When its words went unheeded, the EPA filed an amicus

brief in 2000 in a California Supreme Court case. Etcheverry,

993 P.2d 366. In its brief, the EPA raised the same sentiments

expressed in its 1996 report and argued for a narrow

12

interpretation of FIFRA’s preemption clause. Brief of Amicus

Curiae the United States, Etcheverry v. Tri-Ag Serv., Inc., 993

P.2d 846 (Cal. 2000) (No. 98-127). The EPA highlighted the

original purpose of FIFRA, to protect humans and the

environment and effectuate uniformity in labeling. Jd. at 33-35.

The EPA, in reviewing FIFRA’s plain language and legislative

intent, emphasized the lack of express language encompassing

state tort claims within the preemption clause. /d. at 14, 19-32.

Each of the seventy-five times the word “requirement” is used

in FIFRA, the term refers only to positive law enactments, not

tort remedies. Jd. at 14. Because “identical words used in

differing sections of a statute are presumed to have the same

meaning,” the EPA argued that Congress must have intended to

preempt only positive law enactments and not state tort claims.

Id. (quoting Sullivan v. Stroop, 496 U.S. 478, 484 (1990));

see also Sprietsma v. Mercury Marine, 123 S. Ct. 518 (2002).

Moreover, the EPA emphasized that FIFRA creates no

private cause of action, which means that if the preemption

clause encompasses tort claims, there is no remedy for those

injured by a pesticide. /d. at 6. Thus, the EPA contended, it is

unlikely that Congress intended to eviscerate pesticide-related

tort claims without mention in either the text of FIFRA or its

legislative history. Jd. at 14-16. Once again, as in its 1996 report,

the EPA explained that it does not evaluate a product’s efficacy;

it relies on state law tort claims to govern manufacturers in that

area. Id. at 44, 19-32.

Ill. This Court Shouid Grant Review to Reconcile the

“Jurisprudential Mare’s Nest” Regarding Whether

FIFRA Preempts State Law Tort Claims.

Since FIFRA’s enactment in 1972, federal and state courts

have manifested their confusion regarding the scope of FIFRA’s

preemption clause by developing a maze of contradictory case

law. As federal and state courts struggled over which, if any,

state law tort claims were preempted by FIFRA, this Court

handed down two opinions addressing the scope of preemption

clauses in other federal statutes. See Medtronic, 518 U.S. 470;

13

Cipollone, 505 U.S. 504. Despite the Medtronic and Cipollone

holdings, lower courts have been unable to interpret FIFRA’s

preemption clause uniformly; rather, the birth of Medtronic and

Cipollone only added another layer of confusion, leading to a

variety of cases where courts attempted to either analogize or

distinguish this Court’s holdings. These varying opinions can

best be organized in a chronological manner.

A. Pre-Cipollone FIFRA Case Law

Before this Court handed down a modern opinion

about federal preemption of state law tort clatms, a few

courts addressed the breadth of FIFRA’s preemption clause.

See, e.g., Ferebee, 736 F.2d 1529; Cox v. Velsicol Chem. Corp.,

704 F. Supp. 85 (E.D. Pa. 1989); Wilson v. Chevron Chem. Co.,

1986 WL 14925 (S.D.N.Y. Dec. 17, 1986). First, in Ferebee, the

Circuit Court for the District of Columbia held that FIFRA did

not preempt the plaintiff’s failure to warn claim against the

manufacturer of a herbicide registered under FIFRA. Ferebee, 736

F.2d at 1530. Next, in Wilson, the plaintiff sought punitive damages

on a failure to warn claim after her husband died from exposure to

a herbicide manufactured by Chevron. Wilson, 1986 WL 14925

at *2. The Southern District Court of New York held that FIFRA

did not preempt state law tort claims. Jd. at *4. Thus, at least in

the beginning there seemed to be some agreement that FIFRA

did not preempt state law tort claims. This uniformity, however,

would be greatly impacted by this Court’s opinion in Cipollone.

B. Cipollone v. Liggett Group, Inc.

In 1992, this Court addressed a preemption clause in federal

tobacco regulation. Cipollone, 505 U.S. at 515. In Cipollone, a

smoker sued Liggett Group after becoming ill from smoking

cigarettes. Jd. at 509. Liggett argued the claim was preempted by

federal tobacco regulations found in the Federal Cigarette Labeling

and Advertising Act of 1965 and the Public Health Cigarette

Smoking Act of 1969. Jd. at 510. In reviewing the 1965 Act,’

7. “No statement relating to smoking and health, other than the

statement required by . . . this Act, shall be required on any cigarette

package.” 15 U.S.C. § 1334(a).

14

this Court held that because Congress passed the Act mainly to

create labeling uniformity and only intended to supersede

positive enactments of state and local governments, Congress

did not intend to preempt state law tort claims. /d. at 519.

However, in reviewing the 1969 Act,* this Court held that the

broader language indicated a congressional intent to ban all state

requirements regarding advertising or promotion of cigarettes,

including state common law claims if they could be said to

impose such requirements. Jd. at 523-24.

C. Post-Cipollone FIFRA Case Law

Many federal courts saw Cipollone as the answer to the

confusion over FIFRA and interpreted FIFRA to be analogous

to the cigarette regulations in Cipollone. The First Circuit

interpreted FIFRA broadly and held that the plaintiffs’ state law

claims of negligence and strict liability were preempted because

they imposed an additional “requirement” prohibited by section

136v(b). King v. E.I. Dupont De Nemours & Co., 996 F.2d 1346,

1347 (ist Cir. 1993); see also Grenier, 96 F.3d 559 (1st Cir.

1996) (holding that claim based on inadequate labeling of log

preservative used in home was preempted by FIFRA). The

Seventh Circuit also relied on Cipollone to hold that section

136v(b) preempted state law tort claims. Shaw v. Dow Brands,

Inc., 994 F.2d 364 (7th Cir. 1993) (preempting plaintiff’s claims

of strict liability and negligence). :

After this Court remanded a Tenth Circuit opinion in light

of Cipollone, the Tenth Circuit, joined the First and Seventh

Circuits in preempting state law tort claims.’ On remand, the

Tenth Circuit likened section 136v(b) to Cipollone’s 1969 Act

and held that “[t]o the extent the state tort claims in this case

8. “No requirement or prohibition based on smoking and health

shall be imposed under State law with respect to the advertising or

promotion of any cigarettes the packages of which are labeled in

conformity with the provisions of this [Act].” 15 U.S.C. § 1334(b).

9. Ark.-Platte, 981 F.2d at 1178. In its pre-Cipollone opinion, the

Tenth Circuit held that failure to warn claims were impliedly preempted

under FIFRA. Jd.

15

require a showing that defendants’ labeling and packaging should

have included additional, different, or alternatively stated

warnings from those required under FIFRA, they would be

expressly preempted.” Ark.-Platte, 981 F.2d at 1179. In a pre-

Cipollone opinion, the Eleventh Circuit held the plaintiffs’

claims were “impliedly preempted” after characterizing the

claims of negligence, strict liability, and breach of implied

warranty of merchantability claims as “inadequate labeling”

claims. Papas v. Upjohn Co., 926 F.2d 1019, 1026 (11th Cir.

1991), vacated by 505 U.S. 1215 (1992) (“Papas I”). This Court

remanded that case in light of Cipollone and the Eleventh Circuit

changed its holding to reflect that label-related claims were

expressly preempted by FIFRA. Papas v. Upjohn Co., 985 F.2d

516, 518 (11th Cir. 1993) (“Papas IT’).

The Eighth and Ninth Circuits also visited FIFRA’s

preemption clause after Cipollone, with both courts holding that

tort claims are preempted by FIFRA. See, e.g., Welchert v. Am.

Cyanamid, Inc., 59 F.3d 69 (8th Cir. 1995) (preempting express

warravity claims if based on statements required on product

label); Taylor, 54 F.3d 555 (holding that negligent testing, breach

of warranty and strict liability claims were all preempted under

FIFRA); Bice v. Leslie's Pool Mart, Inc., 39 F.3d 887 (8th Cir.

1994) (preempting failure to warn claims). Further, several

district courts held that FIFRA preempts some, if not all, state

law tort actions related to labeling. See, e.g., Wright v. Dow

Chem. U.S.A., 845 F. Supp. 503 (M.D. Tenn. 1993) (preempting

all tort claims except defective design and failure to properly

test product); Fisher v. Chevron Chem. Co., 716 F. Supp. 1283

(W.D. Mo. 1989) (finding failure to warn claims preempted).

Throughout this time, however, some district courts refused to

find that Cipollone required courts to interpret section 136v(b)

as broadly. See, e.g., Burke v. Dow Chem. Co., 797

F. Supp. 1128, 1134-40 (E.D.N.Y. 1992) (likening FIFRA to

the 1965 Act discussed in Cipollone and holding that FIFRA

does not preempt state law tort claims).

16

D. Medtronic, Inc. v. Lohr

In 1996, this Court again visited the issue of federal

preemption of state law tort claims. Medtronic, 518 U.S. 470.

In Medtronic, this Court addressed the Medical Device

Amendments of 1976 and whether they served tc preempt a

plaintiff, whose pacemaker malfunctioned, from bringing

negligence and strict liability claims against the manufacturer.

Id. at 481-84. A four-justice plurality held that Congress did not

intend to encompass state law tort claims within the Act’s

preemption clause. /d. at 487-91. In distinguishing Cipollone,

the Court held that Congress only intended to preempt those

claims that conflicted with specific regulations issued by the

authorized agency, the Food and Drug Administration. /d. at

500-01. Because the FDA had not acted in the area regarding

the plaintiff's claims, the claims were not preempted. /d. at 501.

Thus, this Court’s Medtronic reasoning implies that where

the federal government has not issued regulations specific to

the product or claim at issue, state tort claims in the unregulated

area will not be preempted. /d. at 500. As in Medtronic, the use

of the term “requirement” in FIFRA is not dispositive as to

congressional intent to preempt state tort claims in an area of

the law. Jd. at 487. Rather, where a federal law bans additional

requirements by states, the full import of such a ban must be

interpreted in the relevant statutory provisions. /d. at 484-86.

E. Post-Medtronic FIFRA Case Law

Since Medtronic, many of the circuit courts that relied upon

Cipollone have failed to revisit the issue of the breadth of

FIFRA’s preemption clause. See, e.g., Bates, 332 F.3d 323

(relying solely on Cipollone); Lowe 's Home Centers, Inc. v. Olin

Corp., 313 F.3d 1307 (11th Cir. 2002) (same); Nat’! Bank of

Commerce, of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602

(9th Cir. 1999) (citing one post-Medtronic case but using it for

an unrelated point). However, some federal courts, along with

state courts, have adjusted their holdings in light of Medtronic

and the EPA’s strenuous arguments in favor of a narrow

17

interpretation of the preemption clause. See, e.g., Sleath, 16 P.3d

1042 (adopting EPA’s viewpoint that FIFRA not intended to

preempt state law tort claims); Sun Valley Packing v. Consep,

Inc., 114 Cal. Rptr. 2d 237 (Cal. Ct. App. 2001) (relying on

post-Medtronic case law to hold various state law tort claims

unaffected by FIFRA). These cases focus on what, if any, state

law tort claims are preempted and distinguish between claims

based on a variety of tests and analyses. In 1999, the Third Circuit

held that claims based on negligent failure to package in a

manner designed to protect against decomposition of the product

are not preempted by FIFRA. Hawkins, 184 F.3d at 255. Further,

federal district courts have begun carving out exceptions to the

previous holdings of their circuit courts requiring preemption

of state law tort claims by FIFRA. See, e.g., Johnson v. Monsanto

Chem. Co., 129 F. Supp. 2d 189 (N.D.N.Y. 2001); Jack v. Orkin

Exterminating Co., No. 97-CV-7012 (JG), 2001 WL 25641

(E.D.N.Y. Jan. 5, 2001).

Some of the federal district courts that are bound by broad-

sweeping pre-Medtronic precedent, hesitantly continue to find

that state law tort claims are preempted by FIFRA. For instance,

a California district court, bound by the Ninth Circuit’s opinion

in Taylor, preempted the plaintiff’s state law tort claims. Nathan

Kimmel, Inc. v. DowElanco, 64 F. Supp. 2d 939, 944-45 (C.D.

Cal. 1999), aff'd, 275 F.3d 1199 (9th Cir. 2002) (affirming in

relevant part and preempting all of plaintiff's claims). That court

reached its holding only after openly criticizing Taylor and

urging the Ninth Circuit to reconsider its analysis in light of

Medtronic and the EPA’s position. /d.

Several state courts addressing the issue have recognized

that FIFRA more closely resembles the statute in Medtronic

and, thus, does not completely preempt state law tort claims.

See, e.g., Sleath, 16 P.3d 1042. However, state courts mirror

federal courts in their struggle to interpret the breadth of FIFRA’s

preemption clause. See, e.g., McAlpine v. Rhone-Poulenc Ag.

Co.; 16 P.3d 1054 (Mont. 2000) (“McAlpine IT’) (reversing the

court’s three year-old decision in McAlpine v. Rhone-Poulenc

18

Ag. Co., 947 P.2d 474 (Mont. 1997) (“McAlpine I”)).

For example, the Texas Supreme Court has vacillated on the

issue throughout this Court’s development of preemption

jurisprudence. In 1995, that court held that FIFRA preempts all

common law tort suits against manufacturers of EPA-registered

pesticides when the claim relates directly or indirectly to

labeling. Quest Chem. Corp. v. Elam, 898 S.W.2d 818, 820 (Tex.

1995).

After Medtronic, the Texas court reconsidered it position.

Geye, 79 S.W.3d 21. In addressing the viability of the plaintiffs’

crop injury claims based on strict liability, breach of express

and implied warranty, and violation of the Texas Deceptive Trade

Practices Act, the Supreme Court of Texas held the claims were

not preempted by FIFRA. /d. at 29. The court, focusing on the

EPA’s 1996 report, held that FIFRA did not preempt all state

law tort claims. The Geye court distinguished its previous

opinion in Quest by stating that Quest “involved a ciaim for

personal injury while [Geye] involved a claim for target crop

damage.” Jd. The Texas court found this distinction important

because the EPA has no interest in whether a pesticide is toxic

to its target crop. Jd. However, as one of its primary mandates,

the EPA stringently regulates the impact pesticides have on

human health. /d.

In one case where the EPA filed an amicus brief, the

Supreme Court of California held that any claim “however

couched, [that] boils down to an assertion that a pesticide’s label

failed to warn of the damage plaintiff allegedly suffered, the

claim is preempted by FIFRA.” Etcheverry, 993 P.2d at 377;

see also Eyl v. Ciba-Geigy Corp., 650 N.W.2d 744 (Neb. 2002),

cert. denied, 123 S. Ct. 2646 (2003) (holding that bystander

state tort claims for personal injury were preempted by FIFRA).

Etcheverry, however, was not the last word regarding the breadth

of FIFRA’s preemption clause in California. In 2001, two

California intermediate courts held that defective design, breach

of express warranty, and negligence claims were not preempted

19

by FIFRA. See Arnold v. Dow Chem. Co., 110 Cal. Rptr. 2d 722

(Cal. Ct. App. 2001); Sun Valley, 114 Cal. Rptr. 2d 237.

In 2000, the Supreme Court of Montana rejected

California’s stance on FIFRA preemption. Sleath, 16 P.3d 1042,

overruling McAlpine I, 974 P.2d 474. Relying on Medtronic

and the EPA’s Etcheverry brief, that court overruled a previous

holding and clarified that FIFRA does not preempt common

law tort claims. /d. Other intermediate state appellate courts

have also relied on Medtronic to distinguish federal cases and

to hold that FIFRA does not preempt state law tort claims.

See, e.g., Brown v. Chas. H. Lilly Co., 985 P.2d 846 (Or. Ct.

App. 1999); Tyler v. Dow Chem. Co., Inc., 683 N.Y.S.2d 619,

620 (N.Y. App. Div. 1998).

IV. This Court Should Grant Review to Clarify the Proper

Analysis in Determining Which, if Any, State Tort Claims

Are Preempted by FIFRA.

As previously argued, federal and state judges are pitted

against each other in the battle over the viability of state law

tort claims in pesticide-related cases. Significantly, there exists

an additional layer of conflict in the FIFRA preemption

controversy. Courts that are united in holding that FIFRA

preempts tort claims are splintered on the issue of the proper

analysis to apply in determining which tort claims are preempted.

While some courts apply a broad test, preempting all tort claims

raised, others have applied more narrow tests, carving out

exceptions and permitting certain claims to survive FIFRA

preemption. The variety of tests applied by lower courts can

be grouped into five categories: (1) Common Aims Test;

(2) Efficacy Test; (3) Risk-U%ility Test; (4) Label-Based Test;

and (5) Inducement Test. This Court should grant review to

clarify the proper analysis for determining which, if any, tort

claims survive FIFRA’s preemption clause.

A. The Common Aims Test

The Circuit for the District of Columbia, one of the first

courts to address the issue, held that state law tort claims

were not preempted by FIFRA. Ferebee, 736 F.2d at 1540.

20

The Ferebee opinion, which has never been revisited by the

court, recognized that FIFRA’s regulatory function differed from

the compensatory function of state law tort claims. Id. Noting

that potential liability promotes legitimate regulatory aims, the

Ferebee court held that tort claims do not conflict with the

language of FIFRA’s preemption clause. /d. at 1543. The court

also stated that liability for state law tort damages does not

require the manufacturer to alter its label; a verdict merely

informs the manufacturer that if it chooses to sell harmful

pesticides in that jurisdiction, it may have to compensate for

some of the resulting injuries. Jd. at 1541. Thus, the Ferebee

court upheld the Maryland plaintiff's claims based on inadequate

labeling and established the first of the many analyses used today

to determine which, if any, tort claims are preempted by FIFRA.

Id. at 1543.

This approach is also followed in the state of Montana.

Sleath v. W. Mont Home Health Servs., Inc., 16 P.3d 1042 (Mont.

2000), cert. denied, 534 U.S. 814 (2001). In 2000, the Supreme

Court of Montana handed down sister opinions in Sleath and

McAlpine II, reversing the position it took “a scant three years”

earlier. Jd. at 1053 (Gray, J., dissenting). Compare McAlpine II,

16 P.3d 1054, with McAlpine I, 947 P.2d 474. As one basis for

its abrupt about face, the Montana court relied on the EPA's

anti-preemption position articulated in its amicus brief in

Etcheverry.

Like the D.C. Circuit, the Montana Supreme Court

recognized the difference between a state directly commanding

that a pesticide manufacturer alter its label and a damage award

that may prompt the manufacturer to make such a change. S/eath,

16 P.3d at 1051. Perhaps most importantly, the Montana

Supreme Court scrutinized the differences between this Court's

opinions in Medtronic and Cipollone and found that the analysis

in Medtronic, leading to a finding of no congressional intent to

preempt state law tort claims, applied with equal force to FIFRA.

Id. at 1053. The state courts of Arkansas, Oregon, and New

21

York, along with other federal.courts,'° have adopted a similar

analysis. Alter, 834 S.W.2d at 145; Brown, 985 P.2d 846;

Mann v. H.W. Anderson Prods., Inc., 676 N.Y.S.2d 658

(N.Y. App. Div. 1998).

Until recently, the Solicitor General of the United States

supported use of this test in its amicus briefs. Briefs of Amicus

Curiae the United States, Etcheverry v. Tri-Ag Serv., Inc., 993

P.2d 846 (Cal. 2000) (No. 98-127) and Hart v. Bayer Corp.,

199 F.3d 239 (Sth Cir. 2000) (No. 98-60496). In these briefs,

the Solicitor General and the EPA submitted that the “courts

that have concluded that FIFRA preempts state-law damages

actions have done so ... without fully examining the text,

regulatory background, legislative history, and purposes of

FIFRA,” factors which illustrate congressional intent for state

law tort actions to continue compensating for injuries caused

by pesticide use. /d. To read FIFRA’s preemption section any

other way produces an absurd and unintended result — granting

complete immunity to an industry Congress deemed in need of

more stringent regulation. The Solicitor General and the EPA

therefore urged a holding that FIFRA categorically does not

preempt state law tort claims. /d.

However, the Solicitor General recently departed from this

view. See Brief of Amicus Curiae the United States on Petition

for a Writ of Certiorari, Am. Cyanamid Co. v. Geye, 79 S.W.3d

21 (Tex. 2002), cert. denied, 123 S. Ct. 2637 (2003) (No. 02-

367). Interestingly, the EPA did not join the Solicitor General

in submitting the amicus briefing in Geye as it had in Etcheverry

and Hart. Furthermore, the EPA has not retracted Pesticipe

REGULATION Notice 96-4. Although it is unclear whether the lack

of the EPA’s imprimatur on the Solicitor General’s Geye amicus

10. See, e.g., Roberts v. Dow Chem. Co., 702 F. Supp. 195 (N.D.

Ill. 1988) (following the Ferebee decision); Villari v. Terminix Int'l, Inc.,

692 F. Supp. 568, 578 (E.D. Pa. 1988) (noting “the obvious purpose

underlying FIFRA’s prohibition of state labeling and packaging

requirements... is not undermined by the plaintiffs’ failure-to-warn

claim”); Wilson, 1986 WL 14925 (holding that liability for damages,

including punitive damages, is consistent with FIFRA’s purpose).

22

briefing suggests a divergence between the interpretation of the

two offices, the fact that the Office of the Solicitor General has

changed its approach between 1999 and today illustrates the

widespread confusion in this area of law.

B. The Efficacy Test

Courts applying the efficacy test refuse to preempt claims

related to the efficacy of a product. According to the EPA,

“efficacy” is defined as either product performance (whether

the product controls the target pest) or phytotoxicity (whether

the product harms the target crop). Brief of Amicus Curiae the

United States, Etcheverry v. Tri-Ag Serv., Inc., 993 P.2d 846

(Cal. 2000) (No. 98-127). In 2002, the Supreme Court of Texas

applied the efficacy test to hold that the plaintiff's claims of

strict liability, breach of express and implied warranty, and

violation of the Texas Deceptive Trade Practices Act were based

on the efficacy of the product and, thus, not preempted by

FIFRA. Geye, 79 S.W.3d at 27-29.

In arriving at its holding, the Geye court found it persuasive

that the EPA requested to be relieved of its duty to regulate

efficacy and Congress permitted the EPA to waive efficacy

inquiries. Jd. At 27. Thus, the EPA’s waiver of efficacy regulation

prompted the Geye court to recognize the viability of pesticide-

related claims based on efficacy. /d. at 29 (stating “without EPA

regulation, there can be no preemption”). Thus, although the

common aims test and the efficacy test do allow for some state

law tort claims to survive FIFRA’s preemption clause, they

conflict in their analyses and results. This conflict illustrates

the endemic confusion surrounding the importance of the EPA’s

role in answering FIFRA preemption questions and underscores

the need for direction from this Court.

C. The Risk-Utility Test

In an unpublished opinion, the Ninth Circuit departed from

its usual FIFRA preemption analysis after receiving the answers

to two questions it certified to the Washington Supreme Court.

Ruiz-Guzman v. Amvac Chem. Corp., No. 98-35088, 2000 WL

1763212 (9th Cir. Nov. 28, 2000). In that case, the plaintiffs

23

sued on a defective design theory of strict liability after becoming

ill from exposure to a pesticide.'’ Under Washington law, a

plaintiff may recover in strict liability under either the “consumer

expectation” test or the “risk-utility” test. Ruiz~-Guzman, 2000

WL 1763212, at *1.

On the one hand, the Ninth Circuit noted that, because

FIFRA preempts label-related claims, the court was prevented

from applying the consumer expectation test, which inquires

into the adequacy of the product’s label. /d. (citing Papike

v. Tambrands Inc., 107 F.3d 737, 743 (9th Cir. 1997) (stating,

“To rule otherwise would allow the anomalous circumstance

that a consumer is entitled to expect a product to perform more

safely than its government-mandated warnings indicate’”’)).

Because the warnings on the pesticide at issue complied with

FIFRA, the plaintiffs were unable to rely on the consumer

expectation test to establish the pesticide’s defective design. Jd.

On the other hand, the Ninth Circuit held the risk-utility

test, which examines whether the pesticide’s utility greatly

outweighs the risks posed by its use, did not conflict with the

territory regulated by FIFRA. /d. As such, the court remanded

the plaintiffs’ design defect claim for application of the risk-

utility test. Jd. The Ninth Circuit’s recognition that the risk-

utility test may be the appropriate analysis for certain FIFRA

preemption issues adds yet another varying approach to resolving

this issue. The risk-utility test incorporates the existence of safer,

alternative products into the equation and utilizes a cost-benefit

analysis to the arena of pesticide manufacture and retailing. /d. ;

see also 7 U.S.C. § 136(bb) & 7 U.S.C. § 136a(d)(1)(C);

RESTATEMENT (THIRD) OF Torts § 2 cmt. f, at 24 (1998).

Significant to this Court, the application of the risk-utility test

to FIFRA preemption issues adds yet a fifth category of analyses

11. Jd. at *1. Notably, due to the toxicity of the pesticide at issue

and its anticipated use, the manufacturer “worked with the Washington

State Department of Agriculture to develop additional restrictions on

[the pesticide’s] sale and use in Washington orchards.” Ruiz-Guzman v.

Amvac Chem. Corp., 7 P.3d 795, 797 (Wash. 2000).

24

applied by courts across the country that are struggling to resolve

the issue of FIFRA preemption. In the two decades of conflicting

case law, the need for guidance from this Court has never been

more evident. Pe

D. The Label-Based Test

The “label-based test,” which asks whether the plaintiff's

claim can be related back to the pesticide’s label, has been

applied to preempt claims that a pesticide did not perform as —

promised,'? “off label” warranty claims,'* and negligence and

strict liability claims alike.'* The gravamen of this test is once

“a pesticide manufacturer places EPA-approved warnings on

the label and packaging of its product, its duty to warn is satisfied

and the adequate warning issue ends.” Papas II, 985 F.2d at

518; Etcheverry, 993 P.2d at 368. Accordingly, under this

analysis, all state law tort claims that can be linked to the

product’s label are preempted. Ark.-Platte, 981 F.2d 1177.

This test, or some derivative thereof, is applied by most Circuit

Courts of Appeal. However, the fact that courts purport to apply

the same test does not provide parties with predictable results.

Compare Hawkins, 184 F.3d at 254 (3d Cir. 1999) (holding no

preemption of defective packaging based claims), with Lowe,

47 F.3d at 129 (preempting defective packaging-based claims).

For this reason, this area of law remains unsettled.

Conversely, should the court hold that the claim is not label-

related, the plaintiff’s cause of action survives. The exclusion

of “off label” warranties from preemption under the label-based

test is based on the principle that, “[q]uite simply, claims based

on misrepresentations of fact do not challenge the labeling of a

manufacturer’s product.” Gorton v. Am. Cyanamid Co., 533

N.W.2d 746, 755 (Wis. 1995). This rule led the Supreme

Court of Wisconsin to hold that misrepresentation claims

related to the manufacturer’s written promotional materials,

12. See Andrus, 178 F.3d 395.

13. See Kuiper, 131 F.3d 656.

14. See Shaw, 994 F.2d 364.

25

advertisements, and technical reports were not preempted. /d.

Further, the plaintiff's claims based on oral statements made by

the manufacturer’s technical service representatives survived

FIFRA preemption. /d.

However, the results of applying the label-related test are

neither consistent nor predictable. For example, in 1992, the

Ninth Circuit held that a state statute requiring point-of-sale

warnings is not preempted, but in 1995, the same court found

that failure to warn claims based on the inadequacy of point-of-

sale signs were preempted. Compare Chem. Specialties Mfrs.

Ass'n v. Allenby, 958 F.2d 941, 946-47 (9th Cir. 1992), with

Taylor, 54 F.3d at 561. Incorporating a new layer of analysis,

the Seventh Circuit held that off-label statements that repeat

information contained in the label are preempted, as are claims

challenging the advertising or marketing of a pesticide. Kuiper,

131 F.3d at 662-63.

The Fifth Circuit has applied the Kuiper test, but noted that

other courts preempt “any claims that point-of-sale signs,

consumer notices, or other informational materials failed

adequately to warn the plaintiff’ as such a claim “necessarily

challenges the adequacy of the warnings provided on the

products labeling or packaging.” Andrus, 178 F.3d at 400.

Therefore, even within the courts purporting to apply the label-

based test, there is a splintering in the application process. The

conflict created by such a variety of approaches undermines the

concept of uniformity that Congress sought to effectuate by

enacting FIFRA. The need for guidance from this Court is plainly

evident.

E. The Inducement Test

Of all five categories, the inducement test is the most broad-

sweeping of the tests used to interpret the scope of FIFRA’s

preemption clause. The inducement test focuses on the

subjective inquiry of whether the tort claim would “induce” the

manufacturer to change its label. MacDonald v. Monsanto Co..,

27 F.3d 1021, 1025 (Sth Cir. 1994). Unlike the other tests, the

inducement test encompasses claims that are objectively label-

26

related and expands to include those that, although not directly

related to the label, may induce the manufacturer to change its

label. Andrus, 178 F.3d at 398-99. Application of this test results

in the preemption of virtually all claims arising from pesticide-

related injuries. /d.

The Fourth Circuit applied this test to preempt claims for

negligent testing, manufacture, marketing, and failure to warn.

Worm v. Am. Cyanamid Co., 5 F.3d 744, 747-48 (4th Cir. 1¢ 93).

As evidence that liability on the plaintiffs’ claims would induce

the manufacturer to alter its product or label, that court

emphasized that “about the same time [as the Worms filed their

claim] American Cyanamid submitted to the EPA a revised label

addressing the risk” complained of by the Worms. /d. at 746.

This bolstered American Cyanamid’s argument that the threat

of liability would induce it to alter its label. /d.

In the case before this Court, the Fifth Circuit further

expanded the inducement test. Bates, 332 F.2d 323. The Fifth

Circuit ruled that the farmers’ breach of warranty, fraud, DTPA,

negligence, and strict liability causes of action were preempted.

Id. at 329. However, to support its holding, the Fifth Circuit

expanded upon the test originally applied by that court in Andrus,

stating that the claims were preempted because they would have

“the ‘undeniable practical effect’ of inducing a manufacturer to

alter the product or label to avoid liability.” /d. at 329 n.9

(emphasis added) (citing MacDonald, 27 F.3d at 1025).

Adoption of this altered version of the inducement test

spans beyond the scope of the issues regulated by the EPA.

See Pesticipe REGULATION Notice 96-4. The EPA governs the

propriety of labels, not the efficacy of the product.'* However,

the Fifth Circuit’s most recent interpretation of FIFRA’s

preemption clause, asking whether state law tort liability would

15. As previously mentioned, the EPA defines “efficacy” as either

product performance (whether the product controls the target pest) or

phytotoxicity (whether the product harms the target crop). See Brief of

Amicus Curiae the United States, Etcheverry v. Tri-Ag Serv., Inc., 993

P.2d 846 (Cal. 2000) (No. 98-127).

27

induce the manufacturer to change the product or label, will

insulate defendants from liability for the manufacture or sale of

a defective product regardless of whether the labeling will be

affected. Bates, 332 F.3d at 329. Further, it places no duty upon

manufacturers to correct that defect, whether it be a flawed

product or a deficient label. Jd.

With the EPA refusing to regulate pesticide efficacy and

the Fifth Circuit preempting all claims that may induce

manufacturers to change their products, no agency or individual

is regulating the efficacy of this nation’s pesticides. See, e.g.,

Andrus, 178 F.3d at 399. This grossly exaggerated /aissez faire

governance is precisely what Congress sought to avoid in

enacting FIFRA and is wholly ineffective at regulating new

products. Indeed, the inducement test directly contravenes the

underlying motivation prompting Congress to enact FIFRA,

protecting the health and environment from unsafe products.

Thus, as courts continue to employ this test and insulate

manufacturers from all claims, the goal of FIFRA to protect

man and the environment will be rendered impotent.

Congressional intent is continually frustrated as courts

continue to vary in their approach. In the states of Texas,

Arkansas, Montana, Oregon, and New York, a plaintiff’s claims

against a manufacturer are viable in state court, but are

preempted in the corresponding federal court. Thus, the conflict

over the scope of the preemption clause and the proper analysis

to be applied will encourage consumers and manufacturers to

forum shop, seeking a venue friendly to their cause. As courts

struggle to interpret FIFRA’s preemption clause, there is not

now nor will there ever be uniformity in the requirements of

pesticide manufacturing.

V. The Particular Disposition and Facts of This Case Present

This Court with the Opportunity to Finally Resolve the

Conflict Surrounding FIFRA’s Preemption Clause.

This case is distinguishable from the other FIFRA cases in

which this Court has denied review. First, this case, unlike the

case of American Cyanamid Co. v. Geye, 79 S.W.3d 21 (Tex.

28

2002), cert. denied, 123 S. Ct. 2637 (2003), contains a final

disposition of the matter in controversy. Here, the Fifth Circuit

finally disposed of all claims raised by the farmers by affirming -

the district court’s grant of summary judgment giving this Court

jurisdiction over the appeal.

Second, as opposed to Netland v. Hess & Clark, Inc., 284

F.3d 895 (8th Cir.), cert. denied, 123 S. Ct. 415 (2002), this

case contains claims inextricably intertwined with the two

layers of conflicting case law discussed in this Petition. Most

significantly, this case raises claims of crop injury, as opposed

to the personal injury claim brought in Netland, and implicates

the EPA’s waiver of efficacy oversight. Permitting litigation

based on crop injury claims fills the gap left open by the EPA’s

refusal to regulate the efficacy of pesticide-related products and

encourages the productior of safer pesticides. Furthermore,

where Netland raised only or claim, failure to warn, this case

includes the vast array of claims that would normally be brought

in a crop injury case: breach of warranty, fraud, violations of

state consumer protection laws, and strict liability based on

defective design. By granting review of this case, this Court

can finally resolve all issues related to the differing positions

taken by federal and state courts, the EPA, and the Solicitor

General regarding the scope of FIFRA’s preemption clause.

Third, in this case, the Fifth Circuit ruled on each of the

claims presented, holding that all claims were label-related and,

therefore, preempted by FIFRA. Upon the invitation of this Court

the Solicitor General of the United States filed an amicus brief

advocating that this Court should not grant review because, inter

alia, the lower court did not rule on whether the claims were

label-related or imposed a “requirement” as defined by FIFRA.

See Brief of Amicus Curiae the United States on Petition for a

Writ of Certiorari, Am. Cyanamid Co. v. Geye, 79 S.W.3d 21

(Tex. 2002), cert. denied, 123 S. Ct. 2637 (2003) (No. 02-367).

In the case before this Court, however, the Fifth Circuit

characterized each of the claims as label-related and as

29

“inducing” the manufacturer to change its label or product

Thus, the questions left unanswered in Geye have been answered

in this case.

Fourth, this case is distinguishable from all other FIFRA-

related cases brought to this Court because it highlights the harm

caused by the lack «i uniformity in the area of FIFRA

preemption. In this case, Petitioners complied with state law

oe we _ _ notice of their claims before filing suit.

g that time, Dow used the Declarato

(“DJA”), codified at 28 U.S.C. § 2201, to Rateebad "ete

a venue favorable to its defenses. Dow, by using the DJA

expressly for purposes of forum shopping, has compounded the

harm resulting from the lack of unif: sity in the area of FIFRA

preemption. Because conflicts of this kind give rise to a serious

risk of forum shopping, they are especially deserving of this

pom attention. Yee v. City of Escondido, 503 U.S. 519, 538

Both consumers and manufacturers are encouraged

shop based on the differing precedent of state pote ag a

For example, consumers in Texas will seek venue in state court

to ensure the viability of their claims. Geye, 79 S.W.3d at 24.

Manufacturers will seek venue in federal court, which preempts

virtually all pesticide-related claims. Bates, 332 F.3d at 327

pote nay em by this Court, venue will remain the

spositive factor in pesticide-relat

parties to forum — apes catalan

Moreover, should consumers choose to raise a claim under

a statute containing a notice provision, like the Texas DTPA,

they will be required to give notice to the manufacturer prior to

filing suit. It is safe to assume that Dow, along with other

manufacturers, will continue to use this grace period to “strike

first” and secure a venue in federal court through the offensive

use of the DJA. Thus, the conflict between federal and state

courts, along with the differing arguments raised by the EPA

and the Solicitor General, serve as the primary motivation for

30

forum shopping. The requirement of notice under the laws of

several states and existence of the DJA compound this problem.

This Court should grant review to remove the issue of venue

from the forefront of FIFRA cases, prevent forum shopping,

and focus litigants’ attention on the proper issue, the merits of

their case.

CONCLUSION

This case raises important questions of state and federal

law and the interaction between the two. The Fifth Circuit’s

preemption of the state law tort claims raised in this case

conflicts with a 2002 decision of the Supreme Court of Texas

that permits the same crop injury claims to survive. Conflicts

like this exist between several other state courts of last resort

and the pertinent Circuit Courts of Appeal, creating incongruent

results based on geographical and jurisdictional happenstance.

This case presents an important question of federal law that has

not been, but should be, settled by this Court.

Respectfully submitted,

Pui. WATKINS KIMBERLY S. KELLER

BetH W. Squires Counsel of Record

Pu Warkins, P.C. THE KELLER Group

700 North St. Mary’s Street 14302 Ben Brush Lane

Suite 1750 San Antonio, Texas 78248

San Antonio, Texas 78205 (210) 857-5267

(210) 225-6666

Attorneys for Petitioners

APPENDIX

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

FILED JUNE 11, 2003

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-10908

DOW AGROSCIENCES LLC,

Plaintiff-Appellee

versus

DENNIS BATES; JIMMY BURSON; BENNY JUDAH,

doing business as Clearwater Farms;

TOMMY COLEMAN; RICHARD COX; ET AL.,

Defendants- Appellants

Appeal from the United States District Court

For the Northern District of Texas.

Before GARWOOD and HIGGINBOTHAM, Circuit Judges,

and FELDMAN, * District Judge.

FELDMAN, District Judge:

Dow Agrosciences LLC sought a declaratory judgment

against 29 Texas peanut farmers whom were threatening to

* District Judge of the Eastern District of Louisiana, sitting by

designation.

2a

Appendix A

sue Dow for damages caused by a Dow-manufactured

herbicide. Dow sought, among other things, a judicial

declaration that the Federal Insecticide, Fungicide and

Rodenticide Act (FIFRA), 7 U.S.C. § 136 (West 2002),

preempts the farmers’ state law claims. The district court

denied the farmers’ motion to dismiss for lack of subject

matter jurisdiction and for failure to state a claim upon which

relief can be granted, and granted Dow’s motion for summary

judgment, holding that FIFRA preempts the farmers’ state

law claims. We affirm.

Strongarm is a herbicide produced and marketed by Dow

to control the growth of weeds in peanuts. Strongarm is

registered with the United States Environmental Protection

Agency as required by FIFRA.

In the spring of 2000, many peanut farmers from west

and northwest Texas bought Strongarm from local retailers.

Many of these farmers contend that Strongarm stunted the

growth of peanut plants, caused yellowing, inhibited peanuts

from lapping or properly developing foliage, delayed

maturity, reduced total peanut production, and increased the

expense of harvesting future peanut crops.

The farmers sent Dow demand letters, claiming that

Dow retailers had misrepresented Strongarm.' The letters

1. The farmers contend that the retailers failed to disclose that

Strongarm damages peanut crops planted in soil with a pH level

above 7.0.

3a

Appendix A

threatened to sue Dow for false advertising, breach of

warranty, and fraudulent trade practices under the Texas

Deceptive Trade Practices Act (DTPA). See Tex. Bus. & Com.

Code Ann. § 17.505(a) (Vernon 2002).

Dow struck first, and sued for declaratory judgment

against 29 of the farmers. Dow sought a declaration that:

(1) FIFRA preempts the farmers’ state law claims; (2) the

“Limitation of Remedies” paragraph on the Strongarm label

limited the farmers’ remedies to the purchase price of the

product; and (3) the “Warranty Disclaimer” paragraph on the

label barred any other claims based on a warranty of

representation. The farmers counterclaimed against Dow

for negligence, breach of implied and express warranties,

fraud, fraud in the inducement, defective design, estoppel,

and waiver.

Il.

A. Subject Matter Jurisdiction

The farmers first contend that federal diversity

jurisdiction did not exist over Dow’s lawsuit because three

of the farmers’ claims failed to meet the $75,000 amount-in-

controversy requirement. 28 U.S.C. § 1332(a) (West 2002).

The issue of subject matter jurisdiction is subject to plenary

review by this Court. See Julian v. City of Houston, 314 F.3d

721, 725 (Sth Cir. 2002). As the party invoking diversity

jurisdiction, Dow bears the burden of establishing the amount

in controversy. See Hartford Ins. Group v. Lou-Con Inc.,

293 F.3d 908, 910 (Sth Cir. 2002).

4a

Appendix A

When the claim is one for declaratory relief, the amount

in controversy is determined by “the value of the right to be

protected or the extent of the injury to be prevented.”

St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250,

1252-53 (5th Cir. 1998). The amount claimed by the

plaintiff controls “if the claim is apparently made in good

faith.” Jd. at 1253 (quoting St. Paul Mercury Indem. Co. v.

Red Cab Co., 303 U.S. 283, 288 (1938)).

Dow’s complaint for declaratory relief states that the

value of each of the individual claims exceeds $75,000.

But that bare allegation, by itself, does not invest a federal

court with jurisdiction. See Asociacion Nacional de

Pescadores v. Dow Quimica, 988 F.2d 559, 566 (Sth Cir.

1993). We must therefore ascertain, based on “summary

judgment type evidence,” whether the amount in controversy

requirement has been met. St. Paul Reinsurance, 134 F.3d

at 1253.

The farmers point to the claims of Burk Denman, Richard

Cox, and Frenchie Lee Wheeler. Their demand letters

claim the following damages: Denman, $37,992.50;

Cox, $33,227.50; and Wheeler, $18,242.50. All three,

moreover, sought an additional $10,000 in attorney’s fees.

See Hartford Ins., 293 F.3d at 912 (including “attorneys’ fees,

penalties, statutory damages and punitive damages” in the

amount-in-controversy calculation).

The farmers’ original damage requests, on their face,

do not satisfy the $75,000 requirement; the farmers’ actual

claims, however, are substantially greater because the DTPA

Sa -

Appendix A

permits a plaintiff to recover the costs of litigation, pre and

post-judgment interest, and treble damages.’ See Tex. Bus.

& Com. Code Ann. § 17.50(b)(1) (Vernon 2002) (providing

for an “award not more than three times the amount of

damages for mental anguish and economic damages”).

The three farmers’ original demand letters did not include

claims for punitive damages. Not only were such damages

available to them under the DTPA, but they later sought such

damages in their counterclaims. We agree with the district

court that “additional demands for attorneys’ fees and

punitive damages exalts the total amount in controversy over

$75,000.” Thus, federal diversity jurisdiction existed over

Dow’s lawsuit.

B. Abstention

Appellants next urge that the district court should have ©

abstained from taking jurisdiction over Dow’s lawsuit.

2. The DTPA, however, does not permit the value of attorneys’

fees, costs, and prejudgment interest to be included in the treble

damages calculation. See Tex. Bus. & Com. Code Ann. § 17.50(e)

(Vernon 2002).

3. The mere availability of treble damages establishes that

Denman’s and Cox’s claims satisfy the $75,000 requirement.

After trebling Wheeler’s request of $18,242.50, and adding his claim

for attorneys’ fees, Wheeler’s potential recovery is only $64,727.50.

After an independent review of the record, this panel agrees with the

district court that Wheeler’s stated claim of $18,242.50 did not

include his claim for future damages. After future damages are added

to the amount of his original claim, Wheeler’s total claim meets the

$75,000 requirement for federal diversity jurisdiction.

6a

Appendix A

District courts have a broad, but not unfettered, measure of

discretion in deciding whether to entertain an action for a

declaratory judgment. See Travelers Ins. v. Louisiana Farm

Bureau Federation, Inc., 996 F.2d 774, 778 (Sth Cir. 1993);

Torch, Inc. v. LeBlanc, 947 F.2d 193, 194 (Sth Cir. 1991).

Thus, a grant of declaratory relief is reviewed for abuse of

discretion. See Magnolia Marine Transport v. Laplace

Towing Corp., 964 F.2d 1571, 1581 (Sth Cir. 1992).

While acknowledging the district court’s broad discretion

to exercise jurisdiction over declaratory judgment suits, this

Circuit requires courts to consider various factors, on the

record, before abstaining from a declaratory judgment action:

1) whether there is a pending state action in

which all the matters in controversy may be fully

litigated, 2) whether the plaintiff filed suit in

anticipation of a lawsuit filed by the defendant,

3) whether the plaintiff engaged in forum

shopping in bringing the suit, 4) whether possible

inequities in allowing the declaratory plaintiff to

gain precedence in time or to change forums exist,

5) whether the federal court is a convenient forum

for the parties and witnesses, ... 6) whether

retaining the lawsuit in federal court would serve

the purposes of judicial economy, ... [and]

7) whether the federal court is being called on to

construe a state judicial decree involving the same

parties and entered by the court before whom

parallel state suit between the same parties is

pending.

7a

Appendix A

St. Paul Ins. Co. v. Trejo, 39 F.3d 585, 590-91 (Sth Cir. 1994).

The district court correctly considered the Trejo factors

on the record before opting to entertain Dow’s declaratory

action. Appellants, however, assert that the 7rejo analysis

favors abstention because Dow’s lawsuit fails to implicate

the core purposes of the Declaratory Judgment Act. They

mistakenly rely primarily on our decision in Magnolia

Marine. 964 F.2d 1571.

In Magnolia Marine, which preceded Trejo, our Court

reversed the district court’s decision to accept a declaratory

judgment action. Jd. at 1581. We mandated abstention

because the declaratory suit was filed immediately after the

defendant conveyed her intent to sue the plaintiffs in state

court, and, we said, the plaintiffs initiated the lawsuit “solely

to obtain their preferred forum in which to anticipate a

defense that they could adequately raise” in state court.

Id. at 1581-82.

Dow’s first strike seems somewhat similar to the conduct

in Magnolia Marine. Dow, too, filed for declaratory relief in

anticipation of being sued in state court. Dow engaged in at

least some degree of forum shopping.‘

4. Although Dow chose to lay venue in Lubbock, a place

convenient for the farmers, the choice of a federal court was no

doubt a strategic one. See American Cyanamid Co. v. Geye, 79 S.W.3d

21, 23 (Tex. 2002).

8a

Appendix A

Against the measure of Magnolia Marine, the first three

Trejo factors appear to favor abstention.’ We nonetheless

agree with the district court that the last three factors clearly

instruct against abstention: the resolution of this dispute in

a single federal forum furthers the interests of judicial

economy;° the federal forum does not appear to be incon-

venient to the farmers; and the federal court was not asked

to construe a state judicial decree involving the same parties

as those involved in a parallel, pending state suit.’ See Trejo,

39 F.3d at 590-91.

5. We assume, arguendo, that the first Trejo factor supports

abstention despite the fact that the federal suit was filed first. Pursuant

to the statutory notice requirements of the DTPA, the farmers were

precluded from bringing a state court action at any time within sixty

days from the date the demand letters were mailed, and Dow brought

its declaratory judgment action after the farmers had taken the

requisite first steps toward bringing a DTPA action.

6. In Cunningham Brothers, Inc. v. Bail, 407 F.2d 1165

(7th Cir. 1969), the Seventh Circuit disregarded the fact that federal

court abstention would force the defendant to defend lawsuits in

various jurisdictions against a variety of plaintiffs. Jd. at 1168-69.

The Cunningham panel, however, emphasized repeatedly that the

underlying action was one of personal injury. Because the scope of

Cunningham appears limited to personal injury actions, and is not a

ruling of this Circuit, we find it to be of little persuasion. We find

that resolving the farmers’ claims in a single federal forum clearly

furthers the interests of judicial economy.

7. It is unclear from the record whether the fourth factor,

concerned with inequities gained by a plaintiff’s precedence in time,

supports abstention.

9a

Appendix A

Thus, “{i]n light of the breadth of the district court’s

discretion,” Torch, 947 F.2d at 195, and because the weight

of the 7rejo factors appears to be balanced and to have been

properly considered by the district court on the record,

we find that the court did not abuse .:.. discretion by enter-

taining Dow’s suit for declaratory judgment.

C. FIFRA Preemption

Appellants also contend that the district court erred when

it decided, by way of summary judgment, that FIFRA

preempted their state law claims. Our review of a district

court’s grant of summary judgment is de novo. See Young v.

Equifax Credit Information Services, Inc., 294 F.3d 631,

635 (Sth Cir. 2002).

Preemption analysis proceeds from “the assumption

that the historic police powers of the States were not to be

superseded by the Federal Act unless that was the clear and

manifest purpose of Congress.” Wisconsin Public Intervenor

v. Mortier, 501 U.S. 597, 605 (1991). Preemption may

nonetheless occur in one of three ways: it may be expressed

by the federal statute, it may be implied from the terms or

structure of a federal statute, or it may arise in a situation

where a conflict between state and federal regulations makes

compliance with both a phy 3ical impossibility. See id.

The district court found that FIFRA expressly preempted the

farmers’ state law claims. We agree.

FIFRA is a comprehensive regulatory scheme aimed at

controlling the use, sale, and labeling of pesticides. See id.

at 601. FIFRA requires, among other things, that manu-

10a

Appendix A

facturers submit proposed product labels for EPA approval.

See 7 U.S.C. § 136a(c)(1)(C) (West 2002).

Section 136v of FIFRA announces:

(a) In General

A State may regulate the sale or use of any federelly

registered pesticide or device in the State, but oly

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 efiect

any requirements for labeling or packaging '

addition to or different from those required under

this subchapter.

The Court has addressed the scope of § 136v(b) many

times. See Hart v. Bayer Corp., 199 F.3d 239 (5th Cir. 2000);

Andrus v. Agrevo USA Co., 178 F.3d 395 (Sth Cit. 1999);

MacDonald v. Monsanto, 27 F.3d 1021 (Sth Cit. 1994).

Our decisions reveal three clear principles. First, FIP RA does

not completely preempt all state or local regulation of

pesticides. See Hart, 199 F.3d at 244 (rejecting an attempt to

premise federal question jurisdiction on a claim of Complete

preemption). Second, FIFRA does not preempt ©O™mmon

law that is unconcerned with herbicide labeling, ror does it

preempt those state laws concerned with herbicid® labeling

that do not impose any requirement in addition to of different

lla

Appendix A

from the FIFRA requirements.* See Andrus, 178 F.3d at 398;

see also Hart, 199 F.3d at 245 (“FIFRA preemption does not

extend to non-labeling state common-law causes of action.”’).

Finally, FIFRA preempts state laws that either directly

or indirectly impose different labeling requirements.’°

See MacDonald, 27 F.3d at 1025.

The district court found that each of the farmers’ state

claims were preempted under § 136v(b) because they

constituted “requirements for labeling and packaging

in addition to those required under” FIFRA."® Appellants

advance two arguments against preemption. First, they

contend that state labeling requirements related to product

effectiveness are not within the scope of FIFRA’s express

preemption clause. Second, they assert that their claims are

not sufficiently related to the content of the Strongarm label.

We reject each argument.

8. It is well-established that the term “any requirements”

encompasses both positive state enactments as well as common-law

causes of action. See Andrus v. Agrevo USA Co., 178 F.3d 395, 398

(Sth Cir. 1999).

9. For example, different requirements may be imposed when

a court authorizes a damage award against a manufacturer that has

the “undeniable practical effect” of inducing a manufacturer to alter

the product or label to avoid liability. See MacDonald v. Monsanto,

27 F.3d 1021, 1025 (Sth Cir. 1994). It is this mandate that is fatal to

appellants’ argument.

10. Thus, we first review whether the farmers’ claims are

expressly preempted by § 136v(b); if FIFRA does not expressly

preempt the farmers’ claims, it becomes necessary to analyze whether

such claims conflict with federal law.

l2a

Appendix A

1) State Labeling Requirements Related to

Product Effectiveness are Within Scope of

FIFRA’s Express Preemption Clause

Appellants urge that their product effectiveness claims,

even those which impose a labeling requirement, are not

within the scope of FIFRA’s express preemption clause

Their argument suggests that FIFRA preemption of

performance-related claims requires the existence of

conflicting EPA enactments.

In Cipollone v. Liggett Group, Inc., the Supreme Court

held that, as long as a federal statute'’ contains an express

preemption clause, it is wholly unnecessary and inappropriate

to import notions of implied preemption through conflict into

the express preemption analysis.'* 505 U.S. 504, 517, 531-

11. Cipollone reviewed the express preemption clause in the

Public Health Cigarette Smoking Act of 1969. The Smoking Act of

1969 and FIFRA are strikingly similar. The Tenth Circuit has written,

“Although the words employed in § 136v(b) are different ‘rom those

in § 5(b) of the Cigarette Smoking Act, their effect is the same . . .

{and w]e see no difference between the operative effect of the two

acts.” Arkansas-Platte & Gulf v. Van Waters & Rogers, 981 F.2d 1177,

1179 (10th Cir. 1993). Moreover, the Seventh Circuit also

“discern{ed] no significant distinction at all” between the two clauses.

Shaw v. Dow Brands, Inc., 994 F.2d 364, 371 (7th Cir. 1993) (“Not

even the most dedicated hair splitter could distinguish these

statements.”).

12. “Where, as here, Congress has included in legislation a

specific provision addressing . . . pre-emption, the Court's task is

one of statutory interpretation—only to identify the domain expressly

(Cont'd)

l3a

Appendix A

32, 544, (1992)(plurality opinion). Nowhere in FIFRA’s text

is § 136v(b)’s express preemptive command, or § 136v(a)’s

savings clause, linked to the interplay of EPA regulations.

7 U.S.C. § 136 (West 2002); see also Arkansas-Platte &

Gulf Partnership v. Van Waters & Rogers, 981 F.2d 1177

(10th Cir. 1993)(“We believe Congress circumscribed the

area of labeling and packaging and preserved it only for

federal law . . . [w]ith the same stroke, Congress banned any

form of state regulation, and the interdiction law is clear and

irrefutable.”) (emphasis added).

Although FIFRA’s text does not define the scope of

FIFRA’s preemption clause to be a function of existing EPA

regulations, appellants nonetheless insist that an implied

conflict preemption analysis must be imported into § 136v(b).

To support their claim, they rely primarily on the Texas

Supreme Court’s decision in American Cyanamid Co. v. Geye,

which held that the EPA’s decision to not regulate product

labeling “with respect to how well a product works” meant

that “state common-law claims about target area crop damage

are not preempted.” 79 S.W.3d 21, 23 (Tex. 2002). The Texas

(Cont’d)

pre-empted by the provision. An interpreting court must begin with

the language employed by Congress and the assumption that the

ordinary meaning of that language accurately expresses the legislative

purpose. We resort to principles of implied preemption—that is,

inquiring whether Congress has occupied a particular field with the

intent to supplant state law or whether state law actually conflicts

with federal law—only when Congress has been silent with respect

to pre-emption.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 532

(Blackmun, J., concurring in part and dissenting in part) (internal

quotations omitted).

l4a

Appendix A

high court reasoned, “EPA regulations define the domain

expressly preempted” by FIFRA because Congress gave

the EPA the “role of evaluating and determining the content

of pesticide labels.” Jd. at 24 (citing 7 U.S.C. 136w(a)(1)

(West 2002)) (internal quotation omitted).

We find Geye unhelpful because it did not address the

principal issue: whether the scope of FIFRA’s express

preemption clause includes product effectiveness claims

which relate to product labeling. Geye holds only that the

specific Texas state-law claims for crop damage did not

present a problem of conflict preemption under the applicable

EPA regulations. In other words, Geye proceeds from the

assumption that the claims at issue did not relate to product

labeling and that FIFRA’s express preemption clause did

not apply."”

The scope of FIFRA’s express preemption clause is

defined by the simple text of § 136v. That the EPA has not

elected to impose labeling regulations concerning product

13. That Geye is properly understood as an ordinary conflict-

preemption case is evident from two portions of the opinion.

First, in the opening paragraphs of its opinion, the Texas court

references only the “exception to preemption” clause of FIFRA.

American Cyanamid Co. v. Geye, 79 S.W.3d 21, 22 (Tex. 2002).

By the “exception to preemption” clause, the court was clearly

referring to § 136v(a), not to the express preemption clause of

§ 136v(b). Second, it is also apparent from Part V of its opinion,

in which the court appeared to conclude that the underlying claim

alleged to be preempted was not a claim “relating directly or indirectly

to labeling,” see 79 S.W.3d at 29 (distinguishing Quest Chemical

Corp. v. Elam, 898 S.W.2d 819 (Tex. 1995)), that the court’s opinion

did not purport to interpret section 136v(b).

15a

Appendix A

effectiveness does not alter the plain meaning of § 136v(b)

nor avoid preemption of a claim that has the effect of

imposing labeling requirements. For a state to create a

labeling requirement by authorizing a claim linked to the

specifications of a label, even where the EPA has elected not

to impose such labeling requirements, would clearly be to

impose a requirement “in addition to or different from those”

required under FIFRA. See 7 U.S.C. § 136v(b). Thus, the

farmers’ claims, including those which challenge Strongarm’s

effectiveness, are within the scope of FIFRA’s express

preemption clause if they are related to the content of the

Strongarm label.

2) The Farmers’ Claims are Sufficiently

Related to the Content of Strongarm Label

The farmers argue that their claims are not related to

the Strongarm label. This argument betrays the facts and it

betrays common sense. We have observed that FIFRA’s

express preemption clause is self-executing. Thus, the

farmers’ claims are expressly preempted under § 136v(b)

if a judgment against Dow would induce it to alter its

product label. See Andrus, 178 F.3d 395, 399 (Sth Cir. 1999)

(finding that state law claims that herbicide had “failed to

perform as specified pursuant to the label” were preempted

by FIFRA because the plaintiff’s success on such claims

would necessarily have had the effect of “imposing additional

labeling standards”).

The facts aside for one moment, a claim’s relatedness to

a product label may be determined simply by reference to

the party’s pleadings. See id., at 399. Unlike Andrus, where

l6a

Appendix A

the plaintiff’s complaint specifically referenced “specifi-

cations set forth in the label,” the farmers’ counterclaim

simply asserts in general that the label did not include a valid

disclaimer or limitation of remedies. We, therefore, look at

each of the farmers’ state claims'* to determine whether

a judgment against Dow would cause it to need to alter

the Strongarm label. See MacDonald, 27 F.3d at 1024

(“[C]ourts must compare the particular language of a statute’s

preemption provision with each common law claim asserted

to determine whether the common law claim is in fact

preempted.”).

a) Breach of Warranty, Fraud and DTPA

The farmers base their breach of warranty, fraud, and

DTPA claims on misleading comments made by Dow

retailers. Claims for breach of warranty based upon an

“off label” representation are preempted by FIFRA only if

the representation deviates from the contents of the product

label. See Andrus, 178 F.3d at 399. Success on such an

“off label” claim would provide a manufacturer with a strong

incentive to alter its label to avoid future liability. See id.

The district court found that the farmers failed to

establish a genuine issue of material fact that the Dow

retailers’ comments differed or strayed in any material manner

14. Although the farmers asserted breach of contract in their

counterclaim, they failed to address this issue in their brief. Thus,

any objection related to the district court’s finding of preemption

regarding breach of contract is waived. See Oden v. Oktibbeha

County, Miss., 246 F.3d 458, 470 n.12 (Sth Cir. 2001).

17a

Appendix A

from the contents of the Strongarm label.'* Atver reviewing

the record, we agree with the district court. Thus, the farmers’

warranty claims are preempted under § 136v(b). See id.

at 400 (refusing to overturn a grant of summary judgment on

a defense of preemption where the plaintiffs failed to establish

that the representations forming the basis of the claim differed

from the contents of the FIFRA label).

The farmers’ fraud claims, based upon the same

“off label” statements by Dow representatives, are subject

to an identical analysis. Because no evidence was presented

demonstrating that the retailer statements deviated from the

contents of the Strongarm label, the fraud claims are similarly —

preempted by § 136v(b).

The DTPA does not create a warranty; rather,

it establishes a remedy for the breach of an independent

warranty. See Centex Homes v. Buecher, 95 S.W.3d 266,

269 (Tex.2002). Because the only warranty at issue is based

upon these “off-label” comments, the farmers’ success on

a DTPA action would also induce Dow to alter its label.

The DTPA claim is thus necessarily preempted by FIFRA

§ 136v(b).

15. The district court held that one pre-sale representation

by Dow retailers deviated from the content of the Strongarm label.

The court found that the representation, however, was controlled by

the label’s “Limitation of Remedies” provision. The farmers’ do not

seek appellate review of the district court’s application of the

“limitation of remedies” provision.

18a

Appendix A

~

b) Defective Design

Defectively manufactured or designed products properly

labeled under FIFRA are generally subject to state regulation.

See Netland v. Hess & Clark, Inc., 284 F.3d 895, 899

(8th Cir. 2002). Dow, however, correctly contends that the

farmers’ defective design claim is merely a disguised claim

for failure to warn. See Grenier v. Vermont Log Buildings,

Inc., 96 F.3d 559, 564 (1st Cir. 1996) (“[MlJerely to call

something a design or manufacturing defect claim does not

automatically avoid FIFRA’s explicit preemption clause.”).

One cannot escape the heart of the farmers’ grievance:

Strongarm is dangerous to peanut crops in soil with a pH

level over 7.0, and that was not disclosed to them.

In Netland, the Eighth Circuit evaluated a FIFRA

preemption defense to a strict liability claim. See Netland,

284 F.3d at 899. The Netland court found that the plaintiff’s

expert testimony was insufficient to establish a design defect,

and that the claim was obviously more directed to deficiencies

in the EPA-approved label. See id. at 900-01.

Netland is a good guide for us. The farmers’ counterclaim

presents a straightforward design defect claim, that Strongarm

was unreasonably dangerous at the time it left Dow’s control.

Nonetheless, the farmers did not claim that Strongarm is

unreasonably dangerous for use on all peanut crops; rather,

they asserted that Strongarm is dangerous when applied to

crops in soil with high pH levels. See Grenier, 96 F.3d at

565 (finding plaintiff’s claim that a product was defectively

designed because it was foreseeable that it would be used in

19a

Appendix A

a particular way “is effectively no more than an attack on the

failure to warn against [that] use and therefore is a preempted

claim”).

We find that the farmers’ strict liability counterclaim

is functionally a disguised claim for failure to warn. It is

inescapable that success on this claim would again necessarily

induce Dow to alter the Strongarm label. The district court

did not err in ruling that FIFRA expressly preempts the

farmers’ defective design claim.

c) Negligence

The farmers also maintain that Dow was negligent

in the testing, manufacture, and production of Strongarm.

They overlook that a negligent testing claim is, as a matter

of Texas law, a variation of an action for failure to warn.

See American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 437

(Tex. 1997). We agree with the district court that the farmers’

negligent manufacture claim was, again, simply a disguised

claim for failure to warn and is preempted by § 136v(b).

Each of the farmers’ claims exceeded the $75,000

statutory requirement for federal diversity jurisdiction.

Moreover, the district court conducted a proper Trejo

abstention analysis. Given that the balance of the Trejo factors

does not appear to point clearly toward abstention, we find

that the district court did not abuse its discretion by enter-

taining the declaratory judgment action. We reiterate that,

because FIFRA’s express preemption clause is self-executing,

20a

Appendix A

FIFRA preemption of performance-related state law claims

is not dependent upon the existence of conflicting EPA

regulations. Moreover, the farmers’ claims for breach of

warranty, fraud, DTPA, defective design and negligence are

all preempted by FIFRA’s express preemption clause because

success on such claims would necessarily induce Dow to alter

its product label. AFFIRMED.

2la

APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT

OF TEXAS, LUBBOCK DIVISION

DATED AND FILED JUNE 3, 2002

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

Civil Action No. 5:01-CV-331-C

DOW AGROSCIENCES, LLC,

Plaintiff,

v.

DENNIS BATES, et al.,

Defendants.

ORDER

On this day the Court considered Plaintiff’s Motion for

Summary Judgment filed March 13, 2002. Defendants filed

a Response to Plaintiff’s Motion to Dismiss on April 2, 2002.

Plaintiff filed a Reply on April 19, 2002. After considering

all relevant arguments and evidence, the Court GRANTS

Plaintiff’s Motion for Summary Judgment.

22a

Appendix B

I,

BACKGROUND

Plaintiff, Dow AgroSciences, manufactures pest

management and biotechnology products. Plaintiff introduced

Strongarm in the spring of 2000. Strongarm is used as a

preemergence herbicide to control certain weeds in peanuts.

Plaintiff began receiving demand letters from individua'

peanut growers (Defendants) conténding that Strongarm

wes “highly toxic” and failed to control the weeds in their

peenut crops. The Defendants also contended that Plaintiff

misrepresented the product and that the misrepresentations

constituted false, misleading, and deceptive acts and

practices. In addition, Defendants alleged false advertising,

breach of warranty, and statutory claims for alleged deceptive

and fraudulent trade practices. Defendants’ demand letters

demanded payment from Plaintiff for certain damages,

including consequential and incidental damages, treble

damages, and attorneys’ fees and expenses. On December

21, 2001, Plaintiff brought suit seeking declaratory judgment.

Il.

STANDARD

Summary judgment is appropriate only if “the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any,” when viewed in the

lignt most favorable to the non-moving party, “show that there

is No genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Anderson v.

23a

Appendix B

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal

quotations omitted). A dispute about a material fact is

“genuine” if the evidence is such that a reasonable jury could

return a verdict for the non-moving party. Jd. at 248.

In making its determination, the court must draw all

justifiable inferences in favor of the non-moving party.

Id. at 255. Once the moving party has initially shown “that

there is an absence of evidence to support the nonmoving

party’s case,” Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986), the non-movant must come forward, after adequate

time for discovery, with significant probative evidence

showing a triable issue of fact. Fed.R.Civ.P. 56(e); State Farm

Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (Sth Cir. 1990).

Conclusory allegations and denials, speculation, improbable

inferences, unsubstantiated assertions, and legalistic

argumentation are not adequate substitutes for specific facts

showing that there is a genuine issue for trial. Douglass ~.

United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (Sth Cir. 1996)

(en banc); SEC v. Recile, 10 F.3d 1093, 1097 (Sth Cir. 1993).

To defeat a properly supported motion for summary

judgment, the non-movant must present more than a mere

scintilla of evidence. See Anderson, 477 U.S. at 251. Rather,

the non-movant must present sufficient evidence upon which

a jury could reasonably find in the non-movant’s favor. /d.

III.

DISCUSSION

Plaintiff filed this suit in an effort to have the Court

determine the parties’ rights and obligations under the

applicable federal law. Plaintiff contends that the Federal

24a

Appendix B

Insecticide, Fungicide and Rodenticide Act (“FIFRA”)

expressly preempts all of Defendants’ claims against f !aintiff.

Defendants assert that their claims are not exPressly

preempted by FIFRA.

FIFRA creates a comprehensive regulatory sch¢me for

pesticide and herbicide labeling. See Wisconsin Public

Intervenor v. Mortier, 501 U.S. 597, 601 (1991). Under its

provisions, all herbicides sold in the United States must be

registered with the Environmental Protection A8ency

(“EPA”). See 7 U.S.C. § 136a(a). FIFRA also est#blishes

a complex process of EPA review that culminates in the

approval of the label under which the product is m@rketed.

See 7 U.S.C. § 136a(c). A pesticide manufacturer must Submit

a “statement of all claims to be made for” the herticide as

well as directions for its use, its ingredients, and its #¢verse

effects. See 7 U.S.C. § 136a(a). The EPA then registers the

herbicide if it determines that its composition is sih as to

warrant the proposed claims for it, that its labeling cOMPlies

with FIFRA requirements, and that it will perform its "tended

function without unreasonable adverse effe-'S on the

environment. See 7 U.S.C. § 136a(c)(5). J« 4M effort to

preserve uniformity of laws concerning “beling, FIFRA

provides that states “shall not impose ‘ continue in efiect

any requirements for labeling or pac’#8!ng in addition to or

different from those required un¢-" FIFRA. See 7 U.S.C.

§ 136v(b). Section 136v(b) pr-©™Pts those state laws that

impose or effect different -! @dditional labeling require-

ments. MacDonald y. M-"Santo Co., 27 F.3d 1021, 1025

(Sth Cir. 1994) The -*Press language of FIFRA clearly

indicates that Cong~~$5 intended that the federal act preempt

25a

Appendix B

conflicting state law, including state common law tort

claims. MacDonald vy. Monsanto Co., 27 F.3d 1021, 1025

(Sth Cir. 1994).

Plaintiff’s first assertion is that FIFRA expressly

preempts Defendants’ alleged breach of implied warranty

claims. Defendants on the other hand claim that FIFRA does

not preempt their implied warranty claims because these

claims are not based on inadequacies in labeling. Defendants

claim that the alleged breach of implied warranty claims arise

from field day projects sponsored by Plaintiff. Defendants

allege that at the field day projects, they were told that

Strongarm was an excellent herbicide to use for weed control

on West Texas Peanuts. The Court finds that FIFRA preempts

Defendants’ breach of implied warranty claims because

“[i}n every instance the defects alleged [by Defendants] are

linked to the specifications set forth in the label.” Andrus v.

Agrevo USA Co., 178 F.3d 395, 399 (Sth Cir. 1999).

Defendants attempt to avoid FIFRA preemption because

they “challenge misrepresentations that were made separately

from the label.” See Andrus, 178 F.3d 395, 400 (quoting

Kuiper v.. American Cyanamid Co., 131 F.3d 656, 662

(7th Cir. 1997)). Defendants’ argument fails as Defendants

have failed to raise a genuine issue of material fact suggesting

that the advice and statements made at the field day projects

differed trom the contents of the Strongarm product label.

The implied warranty claims are preempted by FIFRA

because they challenge the Strongarm label.

Plaintiff also asserts that FIFRA preempts Defendants’

alleged breach of express warranty claims. Defendants

claim that because express warranties are not a requirement

26a

Appendix B

imposed by a state, they are not preempted under FIFRA.

However, premising liability on the inaccuracy of a statement

on the label is in effect challenging the label, and FIFRA

preempts any claim that directly or indirectly challenges

the sufficiency of the label. The express warranty claims

are preempted by FIFRA because they challenge the

Strongarm label.

Additionally, Plaintiff claims that Defendants’ alleged

breach of implied and express warranty claims are foreclosed

by Strongarm’s label provisions. Strongarm’s label provisions

specifically disclaim any implied warranties and provide a

limited express warranty.' In Texas, the UCC provides for

the exclusion or modification of warranties. Tex. Bus. &

Com. Code Ann. § 2.316(b) (Vernon 2000). Section 2.316(b)

provides as follows:

(b) Subject to subsection (c), to exclude or modify

the implied warranty of merchantability or any

part of it the language must mention

merchantability and in case of a writing it must

be conspicuous, and to exclude or modify any

implied warranty of fitness the exclusion must be

writing and conspicuous. Language to exclude all

1. Strongarm’s label provides as follows: “Dow AgroSciences

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”. Dow AgroSciences MAKES NO

OTHER EXPRESS OF IMPLIED WARRANTY OF MERCHANT-

ABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY

OTHER EXPRESS OR IMPLIED WARRANTY.

27a

Appendix B

implied warranties of fitness is sufficient if it

states, for example “there are no warranties which

extend beyond the description on the face hereof”.

Whether a disclaimer is conspicuous or not is a question

of law. Section 1.201(10) of the Texas Business and

Commerce Code states that “a term or clause is conspicuous

when it is so written that a reasonable person against whom

it is to operate ought to have noticed it. A printed heading

in capitals is conspicuous.” Tex Bus. & Com. Code Ann.

§ 1.201(10) (Vernon Supp. 2002). Strongarm’s label

provision excluding any express or implied warranty meets

the letter of the Texas UCC and thus is enforceable. Tex Bus.

& Com. Code Ann. § 2.316(b); 2.316(b), (c) (Vernon 2000).

Assuming arguendo that Defendants’ claims for an alleged

breach of express and implied warranties were not preempted

by FIFRA, the claims would be foreclosed by Strongarm’s

label provisions. Plaintiff's Motion for Summary Judgment

on Defendants’ breach of implied and express warranty

claims is GRANTED.

Plaintiff contends that Defendants’ Deceptive Trade

Practices Act and Fraud claims are preempted by FIFRA

because these claims ultimately challenge the Strongarm

label. Plaintiff claims that Defendants’ DTPA and

fraud claims are in essence misrepresentation through

advertising claims which are challenges to the Strongarm

iabel. Defendants deny that their DTPA and fraud claims are

predicated su!ely . n advertisements. Defendants assert that

their claims arise from the representations made by Plaintiff's

retail distributors and employees who conducted the field

day projects and who instructed Defendants about the uses

28a

Appendix B

of Strongarm and from promotional advertising by Plaintiff.

Defendants claim that their DTPA and fraud claims are based

on the representations and promises made by Plaintiff’s

authorized local retail distributors and representatives.

Controlling Fifth Circuit law establishes that FIFRA

preempts claims that rely on advertising and marketing

materials as the basis for their DTPA and fraud claims.

Andrus, 178 F.3d at 400. Specifically, the Fifth Circuit has

held that FIFRA preemption cannot be avoided “simply

because [he] challenge[s] alleged misrepresentations that

were made separately from the label.” Andrus, 178 F.3d at

400 (citing Kuiper v. American Cyanamid Co., 131 F.3d 656,

662 (7th Cir. 1997)). Defendants state that their claims arise

from representations made by Plaintiff’s retail distributors

and employee representatives who conducted field day

projects and “held meetings with the Defendant growers

instructing them about the uses of Strongarm, how to apply

it, extolling its excellent results in west Texas soils with west

Texas weeds and from promotional advertising” by Plaintiff.

Defendant has offered no evidence that these “off-label”

remarks were different from the information contained

in the Strongarm label. See Andrus, 178 F.3d at 400

(citing Kuiper, 131 F.3d at 662-63). Off-label remarks are

preempted when they merely repeat the information on the

label. See id. These remarks Defendants complain of merely

repeat the information contained on the Strongarm label;

therefore, FIFRA preempts these claims.

Defendants also complain about statements made by

Plaintiff’s employee representatives who examined the

Defendants’ fields and advised them that the peanuts would

29a

Appendix B

grow out of the problem and that Plaintiff would pay the

growers for any production loss and increased expenses.

These off-label remarks do not repeat any information found

on the Strongarm label. FIFRA does not preempt these claims.

However, the Strongarm label contained a Limitation of

Remedies provision. The provision provides as follows:

“The exclusive remedy for losses or damages resulting

from the use of this product (including claims based on

contract, negligence, strict liability, or other legal theories)

shall be limited to, at Dow AgroSciences’ election, one of

the following:

1. refund of purchase price paid by buyer or user

for product bought, or

2. replacement of amount of product used.”

Dow AgroSciences shall not be liable for losses or

damages resulting from handling or use of this product unless

Dow AgroSciences is promptly notified of such loss or

damage in writing. In no case shall Dow AgroSciences be

liable for consequential or incidental damages or losses.

The Terms of the Warranty Disclaimer above and this

Limitation of Remedies cannot be varied by any written or

verbal statements or agreements. “No employee or sales agent

of Dow AgroSciences or the sell is authorized to vary or

exceed the terms of the Warranty Disclaimer or this

Limitation of Remedies in any manner.”

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Appendix B

Section 2.719 of the Texas Uniform Commercial Code

provides that parties can limit their liability in damages.

Tex Bus. & Com. Code Ann. § 2.719. The Limitation of

Remedies on the Strongarm label complies with the Texas

UCC. As such, the alleged statements made by the Plaintiff’s

employees and representatives do not vary the terms of the

Limitation of Remedies. Defendants are limited to the

remedies provided in the Limitation of Remedy provision.

Plaintiff’s final assertion is that Defendants’ negligence

claims are preempted by FIFRA. Defendants argue that

Plaintiff was “negligent in the development, manufacture,

production and promotion of Strongarm.” In support of their

argument, Defendants claim that the affidavit of John M.

Brown, Ph.D. demonstrates that Plaintifi was negligent in

the design, fermulation, manufacture, and promotion of

Strongarm in west Texas. In addition, Defendants claim that

the fact that Plaintiff changed the Strongarm label for the

2001 peanut season supports their assertion that Plaintiff was

negligent in the design, formulation, manufacture, and

promotion of Strongarm. Defendants further state that had

the 2001 label changes been made in 2000, “the growers

would not have used Strongarm and would not have

suffered the injuries to their crops that they did.” In effect,

the Defendants are challenging the Strongarm label. The

Defendants’ negligence claim is in actuality a failure to warn

claim that is preempted. Cipolone v. Liggett Group, 505 U.S.

504, 524 (1992). Plaintiff's Motion for Summary Judgement

on this point is GRANTED.

3la

Appendix B

IV.

CONCLUSION

For the reasons previously discussed, Plaintiff's Motion

for Summary Judgment is GRANTED. All other pending

motions are DENIED as MOOT. All relief not expressly

granted is DENIED.

SO ORDERED.

Dated this 3% day of June, 2002.

s/ Sam R. Cummings

SAM R. CUMMINGS

UNITED STATES DISTRICT JUDGE