Amicus Curiae Brief — Bates v. Dow Agrosciences LLC

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No. ae’

OFFICE OF THE CLERK

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IN THE

Supreme Court of the United States

DENNIS BATES, et al.,

Petitioners,

Vv.

Dow AGROSCIENCES LLC,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF FOR AMERICAN

CHEMISTRY COUNCIL AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

Richard O. Faulk

Counsel of Record

Diana L. Panian

Gardere Wynne Sewell LLP

1000 Louisiana, Suite 3400

Houston, Texas 77002-5007

(713) 276-5500

Counsel for Amici Curiae

American Chemistry Council

November 2004

TABLE OF CONTENTS

Page

I tl ]

I 2

TTT LAR SOD ONE TTY Ce NEN NC ed 4

SINCE PETITIONERS' CLAIMS CANNOT

BE EVALUATED APART FROM THE EFFICACY

OF RESPONDENT'S WARNINGS AND

INSTRUCTIONS, THEIR ILLUSORY "DESIGN

DEFECT" CLAIMS ARE PREEMPTED

TABLE OF AUTHORITIES

Akee v. Dow Chem. Co.,

272 F. Supp. 2d 1112 (D. Haw. 2003) ............... 10, 13

Allen v. Long Mfg. NC, Inc.,

322 S.C. 422, 505 S.E.2d 354 (S.C. Ct. App.

Andrus v. AgrEvo USA Co.,

178 F.3d 395 (Sth Cir. 1999)..............cccceseesssees 11,12

Arnold v. Dow Chem. Co.,

110 Cal. Rptr. 2d 722 (Cal. Ct. App. 2001) ............. 13

Bojorquez v. House of Toys, Inc.,

62 Cal. App. 3d 930 (Cal. Ct. App. 1976)..........-c000 8

Cassisi v. Maytag Co.,

396 So. 2d 1140 (Fla. Dist. Ct. App. 1981).............. wa

Cook v. Branick Mfg., Inc.,

736 F.2d 1442 (11th Cir. 1984) 0.0... ceecscceeeeeeeeenenees 8

Dow Chem. Co. v. Ebling,

723 N.E.2d 881 (Ind. Ct. App. 2000), aff'd in

part, rev'd in part, 753 N.E.2d 633 (Ind.

Eriksen v. Mobay Corp.,

41 P.3d 488 (Wash. Ct. App. 2002) ..........ccccccceeeeees 13

Ferguson v. F.R. Winkler GMBH & Co. KG,

79 F.3d 1221 (D.C. Cir.), cert. denied, 519

Tee 8

Gauthier v. AMF, Inc.,

788 F.2d 634 (Sth Cir. 1966) .............cccccccccccececcccseeeees 7

Haddix v. Playtex Family Prods. Corp..,

ke ee 13

Hansen v. Sunnyside Prods., Inc.,

55 Cal. App. 4th 1497 (1997) ...........:cccccssccceseeesereeeees 8

Jarrell v. Monsanto Co..,

528 N.E.2¢ 1158 (Ind. Ct. App. 1988) ..0........0...eceee 8

Leachman v. Beech Aircraft Co.,

oo 8

Lescs v. Dow Chem. Co. (“Lescs I’),

976 F. Supp. 393 (W.D. Va. 1997), aff'd sub

nom 168 F.3d 482 (4™ Cir. 1999) ......ccccccececeeees 13, 14

Lescs v. William R. Hughes, Inc. ("Lescs II"),

168 F.3d 482, 1999 WL. 12913 (4th Cir.

TEE 13

MacDonald v. Monsanto,

27 F.3d 1021 (Sth Cir. 1994) .................cccccccecccceeeeees 12

Marshall v. Clark Equip. Co.,

680 N.E.2d 1102 (Ind. Ct. App. 1997) ..0.........ccccceeee 8

Oken v. Monsanto Co..,

218 F. Supp. 2d 1361 (S.D. Fla. 2002)............... 10, 13

iii

Papike v. Tambrands, Inc., ore

107 F.3d 737 (9th Cir. 1997) ........-ccccceeeeeceeeeeeeenes 7, 13 rUTES

$F rns I icc ieee 4

Reece v. Good Samaritan Hosp.,

953 P.2d 117 (Wash. Ct. App. 1998) ...........c-eeseeeee 14 H.R. Rep. No. 100-939, at 26 (1988),

reprinted in 1988 U.S.C.C.A.N. 3474, 3475... 4

Ruiz-Guzman v. Amvac Chem. Corp., |

243 F.3d 549, 2000 WL 1763212 (9th Cir. - Texas Civ. Prac. & Rem § €2.005 (Vernce hii

, sa TTI

MISCELLANEOUS

Shell Oil Co. v. Harrison,

425 So. 2d 67 (Fla. Dist. Ct. App. 1982)..........-..-+0-+ 8 —— en

Sp UIPTIT Ep itecetehtiemncneitmectetemaineiaciait 7

Temple v. Velcro USA, Inc., :

148 Cal. App. 3d 1090 (1983).........-ccccceeeeeerernennnnnnes Restatement (Third) Torts: Prods. Liab.,§ 21998)... 5

Tillman v. R.J. Reynolds Tobacco Co., Morton F. Daller, Product Liability Desk Reference.

871 So. 2d 28 (Ala. 2003) ..........cccceeeceeeeeeennnnnennnennnees 8 Minima.

Vitanza v. Upjohn Co., g M. Stuart Madden, | Products weet § 8.3 (2d ed.

778 A.2d 829 (Comm. 2001 )..........ccccccceeeeeeeeeeeeeeeeeenenes 1988) . waits ee

Worm v. American Cyanamid Co.,

5 F.3d 744 (4th Cir. 1993) ........ccccceeeeeeeeeeneeeenenees 11,12

iV

STATEMENT OF INTEREST*

The American Chemistry Council (“ACC”)

represents the leading companies engaged in the business of

chemistry. Council members apply the science of chemistry

to make innovative products and services that make people’s

lives better, healthier and safer. These products include

pesticides and herbicides. The business of chemistry is a

$460 billion enterprise and a key element of the nation’s

economy. It is the nation’s largest exporter, accounting for

ten cents out of every dollar in U.S. exports. Chemistry

companies invest more in research and development than

any other business sector.

The ACC is very interested in the questions

presented by this case. Members of the ACC include

herbicide and pesticide manufacturers who are regulated by

the Environmental Protection Agency and the Federal

Insecticide, Fungicide, and Rodenticide Act (“FIFRA”).

Like Respondent, members of the ACC provide

their pesticide and herbicide labels to the EPA for approval.

Once the EPA approves the label, the warnings and

instructions for these products are deemed adequate as a

matter of law under FIFRA. As such, this Court’s ruling

on the preemption of Petitioners’ claims by FIFRA against

Respondent will have a large impact on the members of the

ACC.

*Pursuant to Rule 37.6, amici state that no counsel for any party authored

any part of this brief. No person or entity, other than amici, made a

monetary contribution toward the preparation or submission of this brief,

which is filed with the parties’ written blanket consent.

SUMMARY OF ARGUMENT

This amicus brief addresses a single issue raised by

this proceeding, namely, whether the Fifth Circuit correctly

held that Petitioners’ “design defect” claims are properly

preempted by FIFRA. The resolution of this issue is

important to the ACC and its members, not only because

they include manufacturers of pesticides and herbicides

governed by FIFRA, but also because of the singular nature

of chemical products and the way in which they may — and

may not — be subject to tort liability.

In particular, it is the ACC’s position that chemical

products that conform to manufacturers’ specifications can

be found “unreasonably dangerous” only in the absence of

adequate warnings and precautionary instructions. Because

the manufacturers’ warnings and instructions in this matter

were adequate as a matter of law pursuant to federal

approval, and because all other claims were preempted by

FIFRA, the Fifth Circuit’s judgment should be affirmed.

Chemicals are unique products — they “are what

they are.” Unlike machines or tools, chemical products are

not merely assemblies of discrete components. Instead,

chemicals are singular entities -- unique in themselves.

Their elements and molecules are locked together by natural

laws, not by nuts and bolts, and breaking chemical bonds

does not merely “change” products — it actually transforms

them into something completely different. Thus, it is

impossible to “improve” a chemical product’s “design”

without producing a different product and vitiating the

unique character of the original.

The nature of chemical products may be illustrated

by referring to naturally occurring chemical compounds. For

example, although carbon dioxide is not ordinarily toxic as

2

humans encounter it in everyday life, carbon monoxide is a

deadly toxin. There is nothing “defective” in the “design” of

carbon monoxide merely because it has one less oxygen

molecule in its formula. Instead, what is needed is an

adequate warning of its toxicity and adequate precautionary

instructions to protect users from those dangers. When that

information is provided, the dangers that are intrinsic to the

compound’s nature are not deemed “unreasonably

dangerous.”

The same principles apply to manufactured chemical

products. Such materials may differ in their formulas and

may have varying effects at varying doses and in varying

applications. Yet merely because a manufactured chemical,

such as a herbicide, has certain risks associated with its

intended use does not mean that it is “defectively designed.”

Rather, the inherent risks associated with the compound’s

usage must be addressed by adequate warnings and

instructions. In that way, the potential dangers associated

with the chemical can be eliminated.

These principles are especially important in this

action. Here, Petitioners contend that a_ herbicide,

manufactured precisely according to the manufacturer’s

specifications, was “defectively designed” because it proved

dangerous to crops when applied to soils of a particular

character. Petitioners make this argument not because the

product did not do what it was designed to do — namely, kill

vegetation — but rather because the product did exactly what

it was designed to do. To the extent that the product was

unsuitable for use in certain soils, that “problem” does not

arise from the product’s “design,” but rather from

Petitioners’ failure to appreciate the extent of the product’s

dangers and the precautions necessary to avoid them.

Petitioners’ contentions are no more than disguised

claims that Respondent failed to provide adequate warnings

and instructions to alert Petitioners of certain dangers and the

methods by which those dangers could be avoided.

Although Petitioners argue that the design frustrated their

“expectations” as consumers of the product, such

expectations legitimately arise only when they are based

upon information provided on the product’s approved label.

Because Petitioners’ expectations are defined by the label,

they also derive from the label’s sufficiency as a source of

necessary information. Accordingly, Petitioners’ “defective

design” claims are illusory. Further, because the labeled

warnings and precautions are adequate as a matter of law

under the Federal Insecticide, Fungicide, and Rodenticide

Act (“FIFRA”),' Petitioners are precluded from challenging

their adequacy as a matter of law. Hence, the Fifth Circuit

properly affirmed the district court’s denial of relief to

Petitioners.

ARGUMENT

SINCE PETITIONERS’ CLAIMS CANNOT BE

EVALUATED APART FROM THE EFFICACY

OF RESPONDENT’S WARNINGS AND

INSTRUCTIONS, THEIR ILLUSORY “DESIGN

DEFECT” CLAIMS ARE PREEMPTED BY

FIFRA.

Product liability claims are creatures of state law, and

the standards for evaluating “design defect” claims vary

' See 7 U.S.C. 136 et seq. Federal control over pesticides began with

the passage of The Insecticide Act in 1910. See H.R. Rep. No. 100-

939, at 26 (1988), reprinted in 1988 U.S.C.C.A.N. 3474, 3475. The

passage of the Federal Insecticide, Fungicide, and Rodenticide Act

(“FIFRA”) in 1947 replaced and repealed The Insecticide Act. See id.

4

from state to state.’ It is not the purpose of this brief to

analyze exhaustively whether Petitioners have stated a cause

of action under any particular state’s law. Rather, this brief

is filed to address the arguments Petitioners raise to evade

FIFRA’s preemptive sweep.

Fundamentally, the resolution of this case hinges

upon whether Petitioners can avoid FIFRA preemption by

characterizing their claims as “defective design” causes of

action, instead of as “failure to warn” claims that are plainly

preempted. Petitioners argue that when a chemical product,

such as a herbicide, is sold into the stream of commerce,

consumers of that product have certain “expectations”

regarding the product’s efficacy and safety for its intended

use. When a product fails to satisfy those “expectations” and

causes harm, Petitioners assert that the product is

“defectively designed” because its formulation is

inconsistent with safe usage under foreseeable

circumstances. Stated another way, Petitioners claim that the

product’s “risks” are allegedly outweighed by its “benefits.”

In Petitioners’ view, there are no meaningful

distinctions between a “design defect” claim involving a

chemical product and claims based upon defects in other

types of products, such as machinery or tools. If a chemical

product’s formulation presents an unreasonable danger to

persons or property in its foreseeable uses, the chemical is

“defectively designed” and the manufacturer is subject to

strict liability irrespective of the presence of adequate

warnings and instructions. In this way, Petitioners seek to

avoid FIFRA preemption by casting their claims as

something other than claims based upon “failure to warn.”

* ‘See generally, Morton F. Daller, PRODUCT LIABILITY DESK

REFERENCE, A FIFTY STATE COMPENDIUM (2004 ed.).

5

These arguments are fatally flawed because they

ignore ihe confluence between the fundamental

characteristics of chemical products and the necessity of

considering the impact of adequate warnings in the context

of “design defect” cases. Chemicals are unique products —

they “are what they are.” Unlike machines or tools,

chemical products are not merely assemblies of discrete

components. Instead, they are singular entities -- unique in

themselves. Their elements and molecules are locked

together by natural laws, not by nuts and bolts, and breaking

chemical bonds does not merely “change” change products —

it actually transforms them into something completely

different. Thus, it is impossible to “change” or “improve” a

chemical product’s “design” without producing a different

product and vitiating the unique character of the onginal.

Accordingly, the adequacy of product warnings and

instructions is the sole issue typically relevant in a chemical

product liability case.

The nature of chemical products may be illustrated

by referring to naturally occurring chemical compounds. For

example, although carbon dioxide is not ordinarily toxic as

humans encounter it in everyday life, carbon monoxide is a

deadly toxin. Yet carbon monoxide is not “defectively

designed” because it has one less oxygen molecule in its

formula. Instead, what is needed is an adequate warning of

its toxicity and adequate precautionary instructions to protect

users from those dangers. When that information is

provided, the dangers that are intrinsic to the compound’s

nature are not deemed “unreasonably dangerous.”

The same principles apply to manufactured chemical

products. Such materials may differ in their formulas and

may have varying effects at varying doses and in varying

applications. Yet merely because a manufactured chemical,

6

such as a herbicide, has certain risks associated with its

intended use does not mean that it is “defectively designed.”

Rather, the inherent risks associated with the compound’s

usage must be addressed by adequate warnings and

instructions. In that way, the potential dangers associated

with the chemical can be eliminated — and liability for

injuries resulting from its foreseeable uses can be avoided.

These principles are especially important in this

action. Whether a state court proceeds under a “consumer

expectations” or “risk/utility” analysis, or whether the

question hinges on the availability of an alternative “safer

design,” the adequacy of warnings and instructions is an

indispensable element of applying strict liability principles to

chemical products. Under comment j of the Second

Restatement of Torts,’ considerations of the “design” of a

product and its allegedly defective nature cannot be divorced

from the warnings and instructions that accompany it. In

fact, the thrust of comment j is that legally adequate

warmings and instructions negate liability for allegedly

defective designs as well as implied warranty claims.’

Hence, “an adequate warning will make the product not

unreasonably dangerous, thereby eliminating an essential

> RESTATEMENT (SECOND) OF TORTS, § 402A, Cmt. j (1965).

* See, e.g., Gauthier v. AMF, Inc., 788 F.2d 634, 635 (9th Cir. 1986)

Construing Montana law and holding “where adequate warnings are

given, a product is neither defective nor unreasonably dangerous.”). See

also Papike v. Tambrands, Inc., 107 F.3d 737, 744 (9® Cir. 1997) (“{T}he

legally-adequate warnings . . . foreclosed Papike’s claims for breach of

warranty. The claim for punitive damages obviously fails as well.”);

Temple v. Velcro USA, Inc., 148 Cal. App. 3d 1090, 1094 (1983) (“An

adequate warning is a sufficient defense to a strict liability action. ... If

the warning was adequate it certainly . . . would also negate any

negligence or willful misconduct.”) (citations omitted).

7

element within the definition of strict liability.”° Since

FIFRA makes the legal adequacy of Respondent’s warnings

incontestable, Petitioners right to pursue a “design defect”

claim under the Second Restatement is conclusively negated.

Even if liability is not precluded directly, liability is

> Jarrell v. Monsanto Co., 528 N.E.2d 1158, 1167 (Ind. Ct. App. 1988),

transfer denied, 555 N.E.2d 453 (Ind. 1990) (original emphasis); see also

Ferguson v. F.R. Winkler GMBH & Co. KG, 79 F.3d 1221, 1226 (D.C.

Cir.), cert. denied, 519 U.S. 949 (1996) (citations omitted)(“Much

relevant precedent confirms that the presence of warnings may transform

an otherwise unreasonably dangerous design, even as compared to other

designs, into a safe one.”). “When proper warnings are attached to such

products, they are excepted from the Restatement’s standard of

defectiveness.” Cassisi v. Maytag Co., 396 So. 2d 1140, 1145 n.4 (Fla.

Dist. Ct. App. 1981). See also Bojorquez v. House of Toys, Inc., 62 Cal.

App. 3d 930, 933 (1976) (“{Tjhe manufacturer of an unreasonably

dangerous product may insulate himself from strict liability by adding a

warning or giving directions on the container which keep the product

from being deemed unreasonably dangerous.”); Tillman v. R.J. Reynolds

Tobacco Co., 871 So.2d 28, 32 (Ala. 2003) (“[D]anger may be obviated

by an adequate warning.”); Vitanza v. Upjohn Co., 778 A.2d 829, 836

(Conn. 2001) (“Proper warnings, however, may prevent a product from

being unreasonably dangerous.”); Allen v. Long Mfg. NC, Inc., 322 S.C.

422, 505 S.E.2d 354, 357 (Ct. App. 1998) (“[A] seller may prevent a

product from being unreasonably dangerous if the seller places an

adequate warning on the product regarding its use.”); Hansen v.

Sunnyside Prods., Inc., 55 Cal. App. 4th 1497, 1515 (1997)

(“(C)onsideration of warnings . . . potentially permits the defendant to

escape liability because of the low likelihood of harm.”); Cook v. Branick

Mfg., Inc., 736 F.2d 1442, 1446 n.3 (11th Cir. 1984) (“[DJanger may be

obviated by an adequate warning”); Marshall v. Clark Equip. Co., 680

N.E.2d 1102, 1106 (Ind. Ct. App. 1997) .”), transfer denied, 698 N.E.2d

1186 (Ind. 1998)(“{[A] manufacturer may avoid liability by placing

adequate warnings on a product even when there is evidence of a ‘safer’

alternative design; Leachman v. Beech Aircraft Co., 694 F.2d 1301, 1306

(D.C. Cir. 1982) (“[T]he presence of warnings can cure the unreasonable

danger.”); Shell Oil Co. v. Harrison, 425 So. 2d 67 (Fla. Dist. Ct. App.

1982), rev. denied, 436 So. 2d 98 (Fla. 1983) (EPA-accepted product

label for pesticide sold in bulk was adequate as a matter of law, thereby

defeating claims for strict products liability and negligence).

8

nevertheless extinguished because “design” liability is

inextricably intertwined with the adequacy of Respondent’s

warnings and instructions.

Although the Third Restatement retreats from the

view that an adequate warning inevitably trumps a design

defect claim,° it still acknowledges that “[rJeasonable . . .

instructions or warnings . . . play important roles in the

production and distribution of reasonably safe products.” ;

Further, comment f specifically states that “the warnings and

instructions accompanying the product, and the nature and

strength of consumer expectations regarding the product” are

factors to be weighed in the “design defect” analysis.*

In cases involving chemical products, the issue of

warnings is dominant because the Third Restatement insists

upon proof of an alternative “safer design” as a prerequisite

to a finding that the product’s “design” is defective.’ Since

° RESTATEMENT (THIRD) TORTS: PRODS. LIAB., § 2 cmt 1 (1998).

” Id.

* Jd. Cut. f. -

° Id. at § 2(b)(A product “is defective in design when the foreseeable

risks of harm posed by the product could have been reduced or avoided

by the adoption of a reasonable alternative design by the seller or other

distributor, or a predecessor in the commercial chain of distribution, and

the omission of the alternative design renders the product not reasonably

safe.”). Significantly, this requirement has been codified by statute under

Texas law, the substantive law that governs the viability of Petitioners’

claim here. See TEX. CIV. PRAC. & REM. CODE 82.005 (Vernon Supp.

2004). The Texas rule is consistent with the standard for finding “design

defect” in the majority of other jurisdictions. See M. Stuart Madden, 1

PRODUCTS LIABILITY § 8.3, at 299 (2d ed. 1988) ("[T]he majority rule

posits that plaintiff cannot establish a prima facie case of defective design

without evidence of a technologically feasible, and practicable,

9

no “safer design” can be devised without transforming the

chemical into a different compound, product liability claims

involving chemical products can only be resolved by

evaluating the adequacy of the manufacturers’ warnings and

precautionary instructions. Since warnings must be

considered in any “design defect” calculus — regardless of

which Restatement’s standards are applied — all roads

inexorably lead to FIFRA preemption.'°

Here, Petitioners contend that a herbicide -

manufactured precisely according to the manufacturer’s

specifications —- was “defectively designed” because it

proved dangerous to crops when applied to soils of a

particular character. Petitioners make this argument not

because the product did not do what it was designed to do —

namely, kill vegetation — but rather because the product did

exactly what it was designed to do. To the extent that the

product was unsuitable for use in certain soils, that

“problem” does not arise from the product’s “design,” but

rather from Petitioners’ failure to appreciate the extent of the

product’s dangers and the precautions necessary to avoid

them.

alternative to defendant's product that was available at the time of

manufacture.").

10 See Akee v. Dow Chem. Co., 272 F. Supp. 2d 1112, 1132 (D. Haw.

2003) (“Plaintiffs are precluded from proving a strict liability design

defect claim based on Hawaii's articulation of the risk-utility test,

because such a claim is preempted by FIFRA.”). See also Oken v.

Monsanto Co., 218 F. Supp. 2d 1361, 1366-67 (S.D. Fla. 2002) ), aff'd,

371 F.3d 1312 (11th Cir. 2004)(FIFRA preempts Florida’s risk/utility

and consumer expectation tests for design defect). In the interest of

brevity, the ACC does not provide an exhaustive analysis of the

arguments supporting FIFRA preemption generally. The ACC presumes

that the parties and other amici will address those arguments thoroughly

in their own respective briefs.

10

As a result, Petitioners’ “defective design” claims

necessary depend upon a finding that the warning on the

federally approved label was absent or inadequate. Since the

“problem” alleged by Petitioners does not concern the

efficacy of the product itself, but rather the lack of sufficient

information to inform them of its alleged dangers, it

necessarily derives from a “failure to warn” claim. Indeed, it

seems clear that the “problem” can be “solved” merely by

changing the label, which Respondent actually did when it

secured approval for a supplemental label thereafter.’

If modifying the label is curative, as seems plain

here, Petitioners’ claims must be construed to challenge the

sufficiency of the original label. Such a claim has nothing to

do with the product’s “design” — and everything to do with

the alleged failure of the label to provide enough information

to prevent their injuries. Although the line between

mislabeling and a claim for a defective product has been

described as “razor thin,” the resolution turns upon “whether

one could reasonably foresee that the manufacturer, in

seeking to avoid liability for the error, would choose to alter

the product or the label.”'? Of course, such an alteration

actually occurred in this matter, illustrating Petitioners’ error

'! Respondent successfully petitioned the EPA for permission to issue a

supplemental label for use in 2001. J.A. 179. The supplemental label

provided more specific instructions for soils with pH levels of 7.2 or

higher, stating: “Do not apply Strongarm to soils with a pH of 7.2 or

greater.” J.A. 181.

'2 Worm v. American Cyanamid Co., 5 F.3d 744, 747 (4" Cir. 1993); see

also Andrus v. AgrEvo USA Co., 178 F.3d 395, 399 (S* Cir.

1999)(holding plaintiffs’ state law claims were preempted because

success on their claims would have necessarily had the effect of

“encsinn addisionel labeli tards”).

11

in insisting that their claims are legitimately true “defective

design.”

However creative Petitioners’ contentions may

appear, they are no more than a disguised claim that

Respondent failed to provide adequate warnings and

instructions to alert Petitioners of certain dangers and the

methods by which those dangers could be avoided.

Although Petitioners argue that the design frustrated their

“expectations” as consumers of the product, such

expectations legitimately arise only when they are based

upon information provided on the product’s approved label.

Because Petitioners’ expectations are defined by the label,

they also derive from the label’s sufficiency as a source of

necessary information.

FIFRA preempts state laws that either directly or

indirectly impose different labeling requirements. FIFRA’s

express preemption clause preempts claims if they would

induce the pesticide manufacturer to alter its product label,

irrespective of the particular cause of action asserted.’

Petitioners cannot legitimately argue that their “consumer

expectations” were frustrated by the herbicide’s “defective”

formula in this case. Legitimate “expectations” can only be

defined by the product’s label, not by vague notions conjured

in hindsight after a purchase is concluded. When a warning

label has been approved by the EPA, it would be “anomalous

to hold that a consumer is entitled to expect a product to

'S MacDonald v. Monsanto, 27 F.3d 1021, 1025 (S* Cir. 1994).

'* Worm v. American Cyanamid Co., 5 F.3d 744, 747 (4" Cir. 1993); see

also Andrus v. AgrEvo USA Co., 178 F.3d 395, 399 (S® Cir.

1999)(holding plaintiffs’ state law claims were preempted because

success on their claims would have necessarily had the effect of

“imposing additional tsheli tards”).

12

perform more safely than government-mandated warnings

indicate.”'° For that reason, FIFRA preempts “design

defect” claims based upon allegedly frustrated “consumer

expectations.” '° Any other holding “would represent an

'S Leses v. William R. Hughes, Inc. (“Lescs II”), 168 F.3d 482, 1999

WL 12913, at *12 (4” Cir. 1999) (citations and internal quotation marks

omitted). See also Oken v. Monsanto Co., 218 F. Supp. 2d 1361, 1366-

67 (S.D. Fla. 2002) (“The objective expectation of the public regarding

the dangerousness of a product necessarily involves consideration of the

warning given to the public. Therefore, such design defect claims as

Plaintiff brings under Florida law as to Dursban, a product regulated

under FIFRA by the federal government, are preempted.”); accord, Ruiz-

Guzman v. Amvac Chem. Corp., 243 F.3d 549, 2000 WL 1763212, at *1

(9th Cir. 2000) (“We agree with the district court that FIFRA preempts

Washington’s consumer expectation test.” (citing Papike)); Eriksen v.

Mobay Corp., 41 P.3d 488, 494-95 (Wash. Ct. App. 2002) (FIFRA

preempts Washington’s consumer expectation test for design defect);

Dow Chem. Co. v. Ebling, 723 N.E.2d 881, 910-922 (Ind. Ct. App. 2000)

(Sharpnack, C.J., dissenting in part), aff'd in part, rev'd in part, 753

N.E.2d 633 (Ind. 2001) (“State tort law that permits recovery based on

consumer expectations different from those that could be supported by

the information required to be set forth on labels by FIFRA is in effect no

different than state tort law that allows recovery for failure to make

warnings different from or in addition to those set forth on the label.”).

But see Arnold v. Dow Chem. Co., 110 Cal. Rptr. 2d 722, 743-45 (Cal.

Ct. App. 2001).

‘© Papike v. Tambrands, inc., 107 F.3d 737, 743 (9th Cir. 1997)

(“[Defendant’s} warnings met the federal requirements and [plaintiff's]

design defect claim therefore fails the “consumer expectation” test. 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.”); Haddix v. Playtex Family

Prods. Corp., 138 F.3d 681, 686 (7" Cir. 1998) (same); Akee v. Dow

Chem. Co., 272 F. Supp. 2d 1112, 1132 (D. Haw. 2003); Lescs v. Dow

Chem. Co. (“Lescs I’), 976 F. Supp. 393, 399 (W.D. Va. 1997), aff'd sub

nom. Lescs II, 168 F.3d 482 (4th Cir. 1999), cert. denied, 528 U.S. 1119

(2000)(““Plaintiff cannot proceed under a consumer expectations theory to

show defective design because such a claim is preempted by FIFRA. ...

Like the product in Papike, Dursban is regulated by a federal legislative

scheme which broadly preempts state claims based on federally approved

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unwarranted end-run around federal preemption.”

Accordingly, Petitioners’ illusory “defective design” are

preempted by FIFRA.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

Richard O. Faulk

Counsel of Record

Diana L. Panian

Gardere Wynne Sewell LLP

1000 Louisiana, Suite 3400

Houston, Texas 77002-5007

(713) 276-5500

Counsel for Amici Curiae

American Chemistry Council

November 2004

labeling. For this court to allow a claim of defective design based on

consumer expectations would represent an unwarranted end-run around

federal preemption. ... [T]he court is of the opinion that this aspect of

Plainnff's claim of unreasonably dangerous design is preempted by

FIFRA.”), Reece v. Good Samaritan Hosp., 953 P.2d 117, 123 (Wash.

Ct. App. 1998) (same).

" Leses 1, 976 F. Supp. at 399.

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