Petition for Writ of Certiorari — Papas v. Zoecon Corp.

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80-1837 fF Supteme Court, 0.8.

FILED

NO. 91- MAY 29 W990

4 E CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

MINAS H. PAPAS, et al.,

Petitioners,

VS.

THE UPJOHN COMPANY, and ZOECON CORPORATION,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

Dana G. Bradford, II

(Counsel of Record)

Lee S. Haramis

BAUMER, BRADFORD, WALTERS

& LILES, P.A.

225 Water Street, Suite 2000

Jacksonville, Florida 32201

904/358-2222

Arthur H. Byrant

TRIAL LAWYERS FOR

PUBLIC JUSTICE, PC.

1625 Massachusetts Ave., NW

Suite 100

Washington, D.C. 20036

202/797-8600

Attorneys for Petitioners

Drew Communications Group, Inc.” 1-800-368-7768

1.7

QUESTIONS PRESENTED.

1. Did the court of appeals err in ruling that Congress intend-

ed the Federal Insecticide, Fungicide and Rodenticide Act, 7

U.S.C. § 136 et. seg. (FIFRA), to impliedly preempt state com-

mon law damage claims for failure to warn and inadequate

labeling?

2. Did the court of appeals err in ruling that Congress intend-

ed FIFRA to impliedly preempt such claims, even when the

Environmental Protection Agency (’EPA’) registered a product

and approved its label on the basis of inaccurate information

submitted by the manufacturer?

‘ Petitioners, Minas H. Papas and Ollie M. Papas, his wife, appeared as Plain-

tiffs/Appellants below. Respondents The UpJohn Company and Zoecon Cor-

poration appeared as Defendants/Appellees below. In addition, the following

parties appeared as amicus curiae in the Court of Appeals: The State of Florida,

Attorney General Robert A. Butterworth; Consumers Union of the United

States, Inc.; National Coalition Against the Misuse of Pesticides; United Farm

Workers of America; Farm Workers Justice Fund, Inc.; Comite DeApoyo A

Los Trabajadores Agricolas; and Trial Lawyers for Public Justice, PC (..'] in

support of Petitioners) and National Agricultural Chemicals Association;

Chemical Manufacturers Association; Chemical Specialties Manufacturers

Association; American Wood Preservers Institute; National Pest Control

Association; Product Liability Advisory Counsel; Reichhold Cnemicals, Inc;

and The Dow Chemical Company (all in support of Respondent Zoecon).

Questions Presented

Table of Authorities

Opinions Below

Jurisdiction

Statutes and Regulations

Statement

TABLE OF CONTENTS

The Decision Below Conflicts With

The Only Other Federal Circuit

Court of Appeals Decision On The

Issue And There Is A Wide Split Of

Authority In The Federal District

Courts And The State Courts On The

BO vn vanc cuncikecatiadieae ee

The Preemption Analysis Conducted

In The Decision Below Conflicts

With The Analytical Framework For

Preemption Analysis Established By

Earlier Supreme Court Opinions And

Other Circuit Court Opinions ................

Whether Congress Intended FIFRA

To Preempt State Common Law Of

Inadequate Labeling Claims Is An

Important Federal Question,

Which Was Wrongly Decided Below ........

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ee |

Pee eo eee ee eee eee eeeeeeene

iii

4. Whether Congress Intended

To Preempt State Cemmon Law

Inadequate Labeling Claims

Where The EPA Has Registered A

Product And Approved Its Label On

The Basis Of False Or Inaccurate

Information Is Also An Important

Federal Question, Which Was

Wrongly Decided Below....................sseseeeees 25

te Men LEL GAL icin snannns eeadsconaenee scenes hs 29

Appendix

1. Papas v. Upjohn Co., Opinion of the

Eleventh Circuit Court of Appeals,

February 28, 1991, reported at 976 F.2d

I ID ss sk asctadthsexemgnn Akavneds oneoves ]

2. Papas v. Upjohn Co., United States District

Court, Middle District, Jacksonville

Division, Order and Partial Summary Judgment

EE isch vinbindedescdcenvuhaversscdadesveveses 13

TABLE OF AUTHORITIES

Cases:

Abbot by Abbot v. American Cyanamid Co.,

844 F.2d 1108 (4th Cir. 1988) ....................0.0008 6, 19

Almond Hill School v. U.S. Dept. of Agriculture,

768 F.2d 1030 (9th Cir. 1985) ...............cccessecseeess 24

Arkansas Platte & Gulf Partnership

v. Van Waters & Rogers, Inc.,

748 F. Supp. 1474 (D. Colo. 1990)

(interlocutory appeal pending) .....................0.0000s 16

Associated Industries of Massachusetts v. Snow,

Se ee Pe CO GA BOD vesenncccssccscvescccdccccscces 20

Begley v. Truly Nolan Exterminating, Inc.,

573 So.2d 1038 (Fla. 3d DCA 1991)...................068 17

Bolduc v. Chemed,

Case No. 43-94-55 (Superior Ct.,

Orange County, Cal., April 10, 1989),

(affirmed on other grounds),

(No. G00838 Ct. of Appeals, 4th Appellate

District, Cal., September 24, 1990.) ..................... 17

Cipollone v. Liggett Group, Inc.,

789 F.2d 181 (3d Cir. 1986),

893 F.2d 541 (3d Cir. 1990),

cert. granted, 59 U.S.L.W.

3652, 111 S.Ct. 386 (1991) ............... 12, 14, 15, 16, 30

Cox v. Velsicol Chem. Corp.,

704 F. Supp. 85 (E.D. Pa. 1989) ................. cece eee 16

Dubois v. Ray’s Feed Mill, Inc.,

File No. 8809140-NZ (Cir. Ct.,

Delta County, Mich., Jan. 26, 1990)..................... 17

English v. General Electric Co.,

58 U.S.L.W. 4679, 110 S.Ct. 2270 (1990)....... 19, 21, 22

Environmental Encapsulating Corp.

v. New York City,

— Fe F Foe errr rrr rrr rer 20

Evenson v. Osmose Wood Preserving, Inc.

& American Wood Preserves Inst.,

1990 WL 285756 (S.D. Ind. 1990)...............cceee eee 16

Ferebee v. Chevron Chemical Co.,

736 F.2d 1529 (D.C. Cir. 1984),

cert. denied, 469 U.S. 1062

TED cseensessca 6, 7, 9, 10, 11, 12, 13, 15, 16, 23, 24, 28

Fiedler v. Clark,

2 $f bg | rere cer 24

Fisher v. Chevron Chem. Co.,

716 F. Supp. 1283 (W.D. Mo. 1989) ...........:ceeeeeee 16

Fitzgerald v. Mallinckrodt, Inc.,

681 F. Supp. 404 (E.D. Mich. 1987)...............5. 12, 16

Florida Lime and Avocado Growers, Inc. v. Paul,

Ne Ee eso cth cnntdcctenachicnssvadivaidnesetnatinn 19

Goodyear Atomic Corp. v. Miller,

GS TES. FIG Ci cxecveceseccecsctsccncvsspsecnses 19, 21, 23

Herr v. Carolina Log Bldgs., Inc.,

No. EV 85-262-1283 (S.D. Ind. Sept. 22, 1989)........ 16

Hillsborough County v.

Automated Med. Labs, Inc.,

GIN Te FR bnsncccticesddsisewntisiptncbervesreentinns 19

Hurley v. Lederle Lab. Div. of American

Cyanamid, 863 F.2d 1173 (5th Cir. 1988) ........... 7, 26

Hurt v. Dow Chem. Co.,

759 F. Supp. 556 (E.D. Mo. 1990)....................00: 16

In Re: Agent Orange Product

Liability Litigation,

ae MN OUT PEI, BUOY cc cc csccnccccadacnndpscccccces 24

Jones v. Rath Packing Co.,

ees HINES, 5 cdc kuch val inns nuagevevebedsusaeteeees 14

Kennan v. Dow Chemical Co.,

717 F. Supp. 799 (M.D. Fla. 1989) ...................005. 16

Kerns v. Dow Chemica! Co,

C.V. No. 89-649-PA (D. Oregon 1990) ................0.. 16

Lopez v. Chevron,

Case No. 89272! (Superior Ct.,

Venturi County, N.Y., Dec. 11, 1989) ..............0.00.. 17

Lorillard v. Pons,

UE 6 Sateen cetdendktiseaddcdhsckaabiianns 23

Louisiana Public Service Comm'n. v. F-.C.C.,

Se NN IIE Gaioccnnenercascccnscenacesnecasaxucsececs 19

Maryland v. Louisiana,

WU UI, FE Can ccecsccnncnccccccnscnncccccnsccsncccccen 18

Merrill v. Dow Chemical Co.,

File No. PI88-2630 (D.C. 4th

Judicial Circuit, State of

Minnesota, County of Hennepin,

SE I Touts Ces aca ics Caza cua tosinackdsdaccuxtccsbives 17

vii

Nader v. U.S. E.PA..,

ee ae EE EE GE ID vn cikcnenscncsssesccncesenecees 24

National Agr. Chemicals Ass'n v. Rominger,

500 F. Supp. 465 (E.D. Cal. 1980) ....................08. 22

New York State Pesticide Coalition v. Jorling,

Be be | rere 28, 29

Pacific Gas Electric Co. v. State Energy

Resources Conservation & Development Comm.,

APM: BPW NEED 5 ck asso ncsadcwksdneccqsndsccececssaceseces 2]

Packowski v. Orkin Exterminating Co.,

Case No. 85-46671-NI (Cir. Ct. Kent

County, Michigan, May 5, 1989) ...................06006 17

Palmer v. Liggett Group, Inc.,

Se NE A, BED ince en scccescvenessscunse 13, 15

Pe ak ini iiccivicdatndcvcivpensiedescctwees passim

926 F.2d 1019 (1ith Cir. 1991),

Pet. App. 1-12

Paul v. NCH Corp.,

Index No. 48262 (Sup. Ct., Niagara

CL, Dein, MOUN EL MDS cbiieedenccesisedaccconssznees 17

Penn Dairies v. Milk Control Com..,

i inca duh aneegad iasketacséavansauta 18

Perry v. Dow Chemical Co.,

(Cir. Ct. 15th Judicial Circuit,

Palm Beach County, Fla., Case No.

CL 88 10227 AN, June 30, 1989)..................cce000- 17

Privette v. Armour Exterminating,

(Cir. Ct. of the 15th Judicial

Circuit, Palm Beach County, Fla.,

Case No. 85-6279-CA, February 26

SRS Sy EE EEE lviciotnac sen cdunbainsyiccesscoccwses 17

Viii

Rice v. Sante Fe Elevator Corp.,

Be EN it bnducscnbaseerscaccessddudcncnsancancsest 18

Roberts v. Dow Chem. Co.,

702 F. Supp. 105 (N.D. Til. 1068)...........sccccccscceees 16

Rogers v. Thumb Pest Control of Florida Inc.,

Case No. 88-3462 (Cir. Ct. 13th

Judicial Circuit of Fla., Oct. 10, 1989).................. 17

Ruckelshaus v. Monstanto Co.,

ee Ee ditncntscksccanssassaokiaacainanenss 10,

Selvig v. Lentz Fertilizer, Inc.,

File No. 85CV456 (Cir. Ct.,

Dunn County, Wis., Dec. 26, 1988) ...................5. 17

Silkwood v. Kerr-McGee Corp.,

464 U.S. B36 (1084) ........ccccccccecseees 14, 19, 21, 22, 25

Stewart v. Ortho Consumer Products,

BGGO WL, SGIBD (E.D. Tim. BBD) .........cccccccccccccsess 16

Taylor v. General Motors Corp.,

875 F.2d 816, 824 (llth Cir. 1989),

cert. denied, 58 U.S.L.W. 3628,

BP UU GIN evn dbndsckscccececcenccesescccess 8, 9, 20

Tessman Seed and Chemical Co.

v. State of Minnesota, File

No. C8-89-349 (Minn. D.C. 2nd

Fenccinn Erbtatok, Day DO, TOGGD. oo. 0cacscccssccncceccsccdsas 17

United Construction Workers v.

Laburnum Construction Corp.,

| PTI. SIO EN TORIES PETTOTE 14, 19

United States v. Bass,

IEEE do Uiacacuhaacecciueasccstaunescceusanahuds 12

Watson v. Orkin Exterminating Co.,

No. JFM-88-2427 (D. Md. Nov. 8, 1988)................ 16

Wells v. Ortho-Pharmaceutical Corp.,

788 F.2d 741 (11th Cir. 1986),

cert. denied 479 U.S. 950 (1986) ...................5. 12, 15

Whitner v. Reilly Indus., Inc.,

Pe, He NE BI is ivctcinccids wc dcdcis ccaceanns 16

Wilson v. Chevron Chem. Co.,

BD We ee Ue CNG e, BD occscccccciccccccccssenccess 16

Wisconsin Public Intervenor v. Mortier,

I, ee cee cnc céicasncuidactanches 19

Wixson v. Sonford Products Corp.,

Case No. 24,847 (Chancery Ct.,

Rankin County, Miss., May 1, 1989)...................6. 17

Statutes:

PE CII siacincth dcconsnncnninicnscancesacudauts passim

hai ccossacdicubsrcaueucereehancessgneniaes 5, 27

sini cosh ccthecdinbeeanagananabbecnee 2, 3, 29

da dicen ddicckednad ubanssencoeuencbashadaean 2

ans eccaccandancdanteakiehuneineens 2,6

ee I OO, ad cca cacebsnneanaes ceubuphiveapeies 12

ie i oko eva ensnphaanicunshenpeeaens 5, 26, 27

I icon sa sclakakhassbaandebanenausacsesstsetsteh l

sks chin aduncehicnuacsanvebesssbacabaasansenen 7, 18

Regulations:

ee acs cxsnnsnkened bketeubnbshuacesaedens §

40 C.F.R. Part 158 (1988) ....0......cccccccesesceceessceeeeeseeeees 5

Legislative History:

H.R. Rep. No. 939 100th Cong. 2d Sess.

(1988) 26-27 reprinted in 1988, U.S.

Cong. and Ad. News, 3475-3476 ..........cceccscsssvesccccsees 22

Miscellaneous:

United States General Accounting Office,

Report to Congressional Requesters,

Pesticides, EPA’s Formidable Task To

Assess And Regulate Their Risks (April 1986) ............... 24

NO. 9]-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

MINAS H. PAPAS, et al.,

Petitioners,

vs.

THE UPJOHN COMPANY, and ZOECON CORPORATION,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

OPINIONS BELOW

The opinion of the district court is unreported and appears

in the appendix to this petition at Pet. App. 13-26. The opinion

of the court of appeals is reported at 926 F.2d 1019 (11th Cir.

1991), and appears at Pet. App. 1-12.

JURISDICTION

The judgment of the court of appeals was entered on Febr-.ary

28, 1991. This Court has jurisdiction pursuant to 28 U.S.C. §

1254 (1).

STATUTES AND REGULATIONS

The Federal Insecticide, Fungicide and Rodenticide Act, 7

U.S.C. § 136 et. seq. (FIFRA’), provides in pertinent part as

follows:

§ 136v. (1988) Authority of States

(a) In general

A State may regulate the sale or use of any federal

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 continuein effect

any requirements for labeling orpackaging in addi-

tion to or different from those required under this

subchapter.?

2 2 ae €

§ 136(p) Label and labeling -

(1) Label. - The term “Label” means thewrit-

ten, printed, or graphic matter on, orattached to, the

pesticide or device, or anyof its containers or wrappers.

(2) Labeling. - The term “Labeling” means all

labels and other written, printed orgraphic matter -

2 § 136v(b) of FIFRA was amended, effective October 25, 1988. The only

change to the language of this portion of the statute was to add the heading

to § 136v(b) “Uniformity”. The events that formed the factual basis for the

Petitioners’ claims in the underlying lawsuit all occurred prior to 1988.

(A) accompanying the pesticide or

device at any time; or

(B) to which reference is made on the

label or in literature accompanying the

pesticide or device, except to current official

publications of the Environmental Protec-

tion Agency, the United States Departments

of Agriculture and Interior, the Department

of Health and Human Services, States ex-

periment stations, State agricultural col-

leges, and other similar Federal or State in-

stitutions or agencies authorized by law to

conduct research in the field of pesticides.

STATEMENT

This is a diversity action, filed pursuant to 28 U.S.C. §1332,

seeking damages under Florida common law for severe personal

injuries suffered by petitioner Minas H. Papas and derivative

injuries suffered by his wife, Oilie M. Papas. From 1982 through

1986, Mr. Papas was employed by the Clay County Humane

Society in Clay County, Florida. One of his duties was the ad-

ministration of treatments for dermatological disorders found

in dogs housed in the Humane Society's animal shelter. This re-

quired physically dipping the dogs in a bath containing one of

two products - -Paramite, a product manufactured by respon-

dent Zoecon, or Mitaban, an extremely similar product

manufactured by Upjohn. Throughout the course of his employ-

ment, Mr. Papas was repeatedly and continuously drenched by

these products, and inhaled their fumes.

In July of 1986, Mr. Papas began displaying symptoms of

serious health disorders. He was ultimately hospitalized in late

1986, diagnosed as having aplastic-anemia/pancytopenia, a

debilitating hematological disorder, and declared totally disabl-

ed. His condition and symptoms were consistent with a classic

case of benzene poisoning. Once Mr. Papas was completely

removed from his work env:ronment and no longer administered

the products, his condition improved to a limited degree (in-

dicative of the causal relationship between exposure to the pro-

duct and the disease), but he still suffers from irreparable

damage to his hematological system and remains disabled.

Both Zoecon’s and Upjohn’s products contained, as approx-

imately 70% of their makeup, an aromatic petroleum based

hydrocarbon solvent as an inert ingredient. The solvent utiliz-

ed in Zoecon’s product (known as “Sure-Sol 190”) typically con-

sisted of 1/10 of 1% (0.10%) of benzene by weight. The solvent

utilized in Upjohn’s Mitaban product also contained benzene,

in a somewhat smaller, but nevertheless measurable, amount.

Benzene is a highly toxic substance which has been placed on

the EPA’s “list of inerts of toxicological concern.”

While both Paramite and Mitaban were registered with the

EPA and the Food and Drug Administration ("FDA’), and each

bore a label approved by one of those agencies, neither product’s

label informed end users, such as Mr. Papas, that the product

contained any benzene. Similarly, neither label included any

warning whatsoever of the potential for the development of

diseases, such as aplastic anemia/pancytopenia, which could

result from long term exposure.

Under EPA regulations promulgated pursuant to FIFRA,

manufacturers seeking to register pesticides submit self- prepared

test data to the EPA, which EPA then reviews, but does not ac-

tually test itself. See, 40 C.F.R. Part 15° (1988). Manufacturers

also submit proposed labels for pesticides to the EPA, which can

approve, disapprove, or suggest modifications to them, and

manufacturers may apply to have the EPA approve changes in

previously approved labels. See, 40 C.F.R. Part 156 (1988).

In this case, however, none of those regulatory procedures pro-

vided any protection to Mr. Papas and his wife. Amazingly,

plaintiffs learned during discovery that neither Zoecon nor Up-

john informed either the EPA or the FDA of the presence or

quantities of benzene contained in their products.*

3 Both Upjohn’s and Zoecon’s products have been registered with both the

FDA, pursuant to the Federal, Food, Drug and Cosmetic Act, 2] U.S.C. § 301

et. seq. (the “FDCA”), and the EPA, under FIFRA. The base formulation of

Zoecon’s Paramite product had previously been registered as a pesticide under

FIFRA prior to the amendment of the statute and creation of the EPA in 1972.

When FIFRA was amended in 1972 it allowed for products previously

registered, such as the base formulation of Paramite, to be re-registered by

EPA with relatively little regulatory review of the product and its labels. That

is what happened with Paramite. The Paramite product was later also deem-

ed to be a new animal drug, but, since its base forrnulation was already

registered with the EPA, that agency, rather than the FDA, reviewed and ap-

proved the Paramite label. Upjohn’s Mitaban product was initially proposed

for approval in the late 1970’s and was deemed at that time to be a new animal

drug. Accordingly, the FDA approved the labels borne by that product. See,

7 USC. § 136(u).

Ir. February 1988, Mr. Papas and his wife commenced this

action against Upjohn and Zoecon in the United States District

Court for the Middle District of Florida, seeking damages from

both companies in separate counts for negligence, strict liabili-

ty, and breach of implied warranty of merchantability. Com-

mon to each count, in addition to other asserted bases for relief,

was the charge that the labels failed to adequately warn of the

products’ dangers and of steps that should be taken to avoid

them. The answers filed by both Zoecon and Upjohn raised as

a defense that they had fully complied with all federal labeling

requirements under FIFRA, thereby satisfying any duty to warn.

On April 10, 1989, Zoecon moved for partial summary judg-

ment on the basis that section 136v(b) of FIFRA expressly

preempts all of plaintiffs’ claims to the extent that they allege

inadequate warning or labeling.‘ In response, the Papases

asserted that FIFRA neither expressly nor impliedly preempts

state common law failure to warn claims, relying upon the

holding in Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C.

* Upjohn did not join in Zoecon’s motion for partial summary judgment,

in part because its product’s label was approved by the FDA, rather than the

EPA, since its product was deemed by the agencies to be a new animal drug

and not a pesticide. In light of case law which overwhelmingly holds there

is no preemption of such claims by the FDCA, which contains a provision

comparable to 7 U.S.C. § 136v(b), Upjohn recognized that to join in the mo-

tion would have been futile. See, e.g. Abbot by Abbot v. American Cyanamid

Co., 844 F.2d 1108, 1112 n.1, 1113-14 (4th Cir. 1988).

Cir. 1884), cert. denied, 469 U.S. 1062 (1984). The Ferebee case

was the only federal appellate decision in the country address-

ing the issue of FIFRA’s preemptive effect on common law

damage claims. It held that there was no preemption whatsoever.

The Papases also contended, relying on Hurley v. Lederle Lab.

Div. of American Cyanamid, 863 F.2d 1173 (5th Cir. 1988)

(which held that FDA approval of a proposed label has no

preemptive effect if based on incomplete or inaccurate infor-

mation), that the EPA’s registration of Paramite and approval

of its label could not preempt plaintiffs’ claims because EPA’s

actions were based on incomplete and inaccurate information.

Simply put, Congress could not have intended that EPA’s ap-

proval of Paramite’s label would immunize Zoecon from liability

for failure to warn of benzene, when Zoecon had not even told

the EPA that Paramite contained that highly dangerous

chemical.

On August 2, 1989, the district court granted Zoecon’s mo-

tion and entered judgment for Zoecon and against the Papases

to the extent that the Papases’ claims were based on failure to

warn, finding that FIFRA expressly preempted such claims. The

district court recognized the controlling nature of this preemp-

tion ruling and certified its order for interlocutory appeal under

28 U.S.C. § 1292 (b).5 Zoecon agreed with the Papases’ applica-

5 The district court stayed the proceedings pending the disposition of an

interlocutory appeal.

tion and in fact asked the Eleventh Circuit to hear the interlocutory

appeal, which it did. See, Papas v. Upjohn Co., Pet. App. 2.

On February 28, 199i, the court of appeals issued its deci-

sion, per curiam, holding that FIFRA impliedly preempts the

Papases’ claims to the extent they are based upon inadequate

warning and labeling. The decision did not explicitly mention

basic legal principles of the presumption against preemption or

basic legal principles of preemption analysis (particularly im-

plied preemption analysis), but the court’s ruling turned on the

presumption’s presence and (in the court’s view) its absence.

The court first reviewed FIFRA’s statutory language and

regulations promulgated by EPA under FIFRA, and, undoubted-

ly, due in part to the presumption against preemption, declin-

ed to find that plaintiffs’ common law claims were expressly

preempted. “([Ml]indful that "Congress has long demonstrated

an aptitude for expressly barring common law actions when it

so desires’”’ the court said, quoting its earlier decision in Taylor

v. General Motors Corp., 875 F.2d 816, 824 (llth Cir. 1989), cert.

denied, 58 U.S.L.W. 3628, 110 S.Ct. 1781 (1990), “we admit to

a little uncertainty and pass over the question of express preemp-

tion. Papas, Pet. App. 7.

The court’s implied preemption analysis, however, was not

affected by the presumption against preemption, however,

because, in the Eleventh Circuit’s view, the presumption

simply does not apply to an implied preemption analysis. It

recently stated:

[I]n contrast to the strong presumption against

preemption that we apply in determining whether the

language of a federal statute or regulation expressly

preempts state law, no such presumption is applicable

in deciding whether state law conflicts with federal

law, even where the subject of the state law is a mat-

ter traditionally regarded as properly within the scope

of the states’ rights.

Taylor, supra.

In the case at bar, the Eleventh Circuit was guided by and

ratified this view, noting:

{I]n implied preemption analysis it is possible to in-

fer preemptive intent solely from effects: even if

statutory language or legislative history is unclear....

Papas, Pet. App. 4, quoting Taylor, supra.

With this starting point, the Eleventh Circuit concluded that

FIFRA impliedly preempted state common law damage inade-

quate warning claims for essentially two reasons. First, in an

unprecedented finding, it held that Congress had completely

occupied the field of pesticide labels and warnings. Second, it

found a conflict between state law damage actions and com-

pliance with FIFRA because the court believed that permitting

state damage actions to proceed would “stand as an obstacle

to the accomplishment and execution of the full objectives of

Congress.” Pet. App. 9. Although the court acknowledged that

its holding directly conflicted with Ferebee, it neither

distinguished Ferebee nor gave any meaningful explanation as

to why it disagreed with the Ferebee court’s analysis and con-

clusions. Pet. App. 1, 10.

The court also rejected the Papases’ contention that there

could be no preemption where, as here, the EPA had approved

the proposed labels and warnings based upon inaccurate and

incomplete information provided by the manufacturer. Under

FIFRA, the court said, it was up to the EPA to decide whether

the label was inadequate or based on inaccurate information

and, if so, whether the label should be changed. It did not ex-

plain why Congress would have wanted to give preemptive ef-

fect to labels approved on the basis of inaccurate information.

REASONS FOR GRANTING THE WRIT

The federal government has been regulating pesticide label-

ing for over forty years. In 1947, Congress enacted FIFRA as

“primarily a licensing and labeling statute”; the legislation “con-

tained general standards setting forth the types of information

necessary for proper labeling of a registered pesticide, including

instruction for use; warnings to prevent harm to people, animals,

and plants; and claims made about the efficacy of the product.”

Ruckelshaus v. Monstanto Co., 467 U.S. 986, 991 (1983). Twenty-

five years later, in 1972, “[b]Jecause of mounting public concerns

about the safety of pesticides and their effect on the environ-

ment and because of a growing perception that the existing

legislation was not equal to the task of safeguarding the public

interest,’ Congress expanded FIFRA’s scope, transforming it

“from a labeling law into a comprehensive regulatory statute.”

Id. Neither version of FIFRA, however, said anything about com-

pensating pesticide poisoning victims or displacing the tradi-

tional role of the states in providing for such compensation.

Throughout this time period, consumers injured by inade-

quately labeled pesticides sought and obtained compensation

through state common law tort actions. As in other product

liability cases, manufacturers routinely argued that compliance

with federal standards precluded a finding of liability and, again

as in other such cases, the states routinely rejected that argu-

ment - - holding that compliance constituted strong, but not

conclusive, evidence that the manufacturers gave an adequate

warning for purposes of state common law.

In the early 1980’s, the manufacturers, taking another tack,

even argued that EPA approval of pesticide labels under FIFRA

preempted state common law based warning claims. This argu-

ment, however, was seemingly put to rest by the unanimous deci-

sion of The United States Court of Appeals for the District of

Columbia Circuit in Ferebee, supra. The Ferebee court rejected

the preemption argument in its entirety, holding that Congress

had no intent whatsoever to preempt state common law based

warning claims relating to pesticides.

Thus, for virtually the entire past forty years, a judicial state

of affairs has existed whereby compliance with FIFRA, like com-

pliance with other federal consumer protection statutes, did not

wholly immunize manufacturers from liability under state com-

mon law. See, e.g., Wells v. Ortho-Pharmaceutical Corp., 788

F.2d 74] (llth Cir. 1986), cert. denied 479 U.S. 950 (1986) (in

which the Eleventh Circuit quoted extensively from Ferebee;

United States v. Bass, 404 U.S. 336 (1971).

A few years after Ferebee, manufacturers defending against

inadequate warning claims in cases involving cigarettes began

to successfully assert the defense that such claims were preemp-

ted by the Federal Cigarette Labeling and Advertising Act, 15

U.S.C. § 1331 et. seg. (the “Cigarette Act’). See, Cipollone v. Lig-

gett Group, Inc., 789 F.2d 181 (3d Cir. 1986), 893 F.2d 541 (3d

Cir. 1990), cert. granted, 59 U.S.L.W. 3652, 111 S.Ct. 386 (1991).

Consequently, pesticide manufacturers again aunt to claim that

FIFRA’s labeling provisions preempted state common law war-

ning claims relative to pesticides, arguing that FIFRA was

analogous to the Cigarette Act, and seeking to overturn the

Ferebee decision. The first reported case where such an argu-

ment was given any judicial support was in Fitzgerald v. Mallin-

ckrodt, Inc., 681 F. Supp. 404 (E.D. Mich. 1987).

There are, it should be noted, significant differences between

the Cigarette Act and FIFRA, which make the argument for

FIFRA preemption of pesticide warning claims far less com-

pelling than the argument for preemption asserted in the

cigarette cases. As the First Circuit said in Palmer v. Liggett

Group, Inc., 825 F.2d 620, 629 n. 13. (Ist Cir. 1987):

Under FIFRA, each manufacturer drafts a warning

label for each product for EPA approval. Thus, two

manufacturers of the same regulated product may use

different labels of their ewn choosing, provided only

that they obtain prior EPA approval. Further, [FIFRA]

permits “states to impose more stringent constraints

on the use of EPA-approved pesticides than those im-

posed by the EPA,” indicating that Congress was in-

different to regulation of these products through state

tort law. In contrast, the [Cigarette Act] explicitly (i)

applies to cigarettes only; (ii) mandates the precise

language of the label; and (iii) prohibits any state from

regulating any aspect of cigarette warnings.

Despite these differences, the pesticide manufacturers rely on

the cigarette cases to contend that FIFRA both expressly and

impliedly preempts failure to warn claims. The Ferebee court

rejected both of these contentions and the Eleventh Circuit re-

jected the former. The Eleventh Circuit, however, is the first

federal appellate court to find implied preemption by FIFRA.

In so doing, it takes two extraordinary steps. First, the Eleventh

Circuit bases its analysis on an unwarranted principle, that the

presumption against preemption simply does not apply to im-

plied preemption. Second, it holds that pesticide warning claims

are impliedly preempted even when the evidence shows that the

EPA approved a pesticide’s label based upon inaccurate and in-

complete information submitted by the manufacturer.

This Court has long recognized that, where Congress has

neither provided nor suggested a substitute method for tradi-

tional state common law daraage claims for compensating in-

jured victims, preemption of state tort law should not be found.

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

struction Workers v. Laburnum Construction Corp., 347 U.S.

656, 663-64 (1954). In the instant case, the Eleventh Circuit,

with a single stroke of its pen, has rejected this long standing

principle as well as the equally long standing principle that state

common law is not preempted by Congressional enactment

without a clear and unequivocal expression of Congress’s intent

to preempt. Jones v. Rath Packing Co., 430 U.S. 519 (1977). Thus,

under its rationale thousands of persons injured by defective and

inadequately labeled pesticides, including the Papases, will no

longer be able to seek redress for their injuries in the courts of

the United States, or the various states, despite there being no

clear congressional intent to eliminate such remedies.

This Court has granted review of the Cipollone decision regar-

ding cigarette warning claim preemption. See, Cipollone, supra.

Here, it is even clearer that there is no preemption of plaintiffs’

failure to warn claims. Given that there is a clear split of authori-

ty in the federal circuits and trial courts throughout the nation

on the issue and in light of the important federal question

presented by the instant case, this Court should also grant cer-

tiorari to review the Eleventh Circuit's ruling below. Alternative-

ly, this Court should hold the instant petition for writ of cer-

tiorari in abeyance, pending resolution of Cipollone.

1. The Decision Below Conflicts With

The Only Other Federal Circuit

Court of Appeals Decision On The

Issue And There Is A Wide Split Of

Authority In The Federal District

Courts And The State Courts On The

Issue.

Prior to the decision below, the only federal circuit court deci-

sion on the preemptive effect of FIFRA on state common law

warning claims was Ferebee, supra, in which the District of Col-

umbia Circuit unequivocally held that FIFRA neither express-

ly nor impliedly preempted such claims. Other circuit courts,

in cases not directly involving FIFRA, favorably noted the

Ferebee decision. See, e.g., Palmer, supra; Wells, supra.

The Eleventh Circuit’s opinion in the case at bar aknowledges

that the decision is contrary to that reached in Ferebee, creating

a clear conflict in the federal circuits. Pet. App. 2. The opinion

below also documents that there is a clear split of authority on

the issue at the district and state court level. See, Papas Pet.

App. 2.

In 1987, the first reported decision out of any federal court

appeared which took exception with the holding in Ferebee. Fit-

zgerald, supra. In Fitzgerald the court, relying on Cipollone,

supra, held that pesticide warning claims are expressly preemp-

ted by FIFRA. Since that time, federal district courts have sharp-

ly divided on the issue of FIFRA’s preemptive effect on state

common law warning claims, as the Eleventh Circuit noted in

its decision. ®

* For example, federal district court cases holding that there is no preemp-

tion of such claims under FIFRA include Arkansas Platte & Gulf Partnership

v. Van Waters & Rogers, Inc. , 748 F. Supp. 1474 (D. Colo. 1990) (interlocutory

appeal pending); Evenson v. Osmose Wood Preserving, Inc. & American Wood

Preserves Inst. , 1990 WL 285756 (S.D. Ind. i990); Stewart v. Ortho Consumer

Products, 1990 WL 36129 (E.D. La. 19Su); Kerns v. Dow Chemical Co., C.V.

No. 89-649-PA (D. Oregon 1990); Cox v. Velsicol Chem. Corp. , 704 F. Supp.

85 (E.D. Pa. 1989); Whitner v. Reilly Indus., Inc. , No. 87-5224 (S.D. Ill. 1989);

Roberts v. Dow Chem. Co., 702 F. Supp. 195 (N.D. Ill. 1988); Wilson v.

Chevron Chem. Co., 1986 WL 2412 (S.D.N.Y. 1986). The Eleventh Circuit

also noted federal district court cases finding preemption of some type to in-

clude: Hurt v. Dow Chem. Co., 759 F. Supp. 556 (E.D. Mo. 1990); Kennan

v. Dow Chemical Co., 717 F. Supp. 799 (M.D. Fla. 1989) (decided by the same

district judge who decided the instant case); Fisher v. Chevron Chem. Co.,

716 F. Supp. 1283 (W.D. Mo. 1989); Herr v. Carolina Log Bldgs., Inc., No.

EV 85-262-1283 (S.D. Ind. Sept. 22, 1989); Watson v. Orkin Exterminating

Co., No. JFM-88-2427 (D. Md. Nov. 8, 1988).

The situation in the state courts is equally confused. Several

state court cases directly conflict on the ise:e of FIFRA

preemption.’

Thus, a state of affairs exists whereby litigants in federal and

state courts asserting common law claims relating to pesticide

labeling and warnings, as well as defendants raising defenses

to such claims, face a situation where it is wholly unpredictable

as to whether the courts in their cases will find that their claims

are preempted or will be permitted to proceed. This situation

creates a strong incentive for forum shopping. It is also manifest-

ly unjust, as certain injured parties will obtain recoveries, while

others will not, and certain defendants will not be held liable,

while others will, solely because of the particular forum in which

their cases are pending.

7 State court cases finding no preemption of common law warning claims

by FIFRA include Perry v. Dow Chemical Co., (Cir. Ct. 15th Judicial Cir-

cuit, Palm Beach County, Fla., Case No. CL 88 10227 AN, June 30, 1989);

Packowski v. Orkin Exterminating Co., Case No. 85-46671-NI (Cir. Ct. Kent

County, Michigan, May 5, 1989); Privette v. Armour Exterminating, (Cir. Ct.

of the 15th Judicial Circuit, Palm Beach County, Fla., Case No. 85-6279-CA,

February 26 and March 16, 1988). State court cases finding preemption in-

clude Begley v. Truly Nolan Exterminating, Inc., 573 So.2d 1038 (Fla. 3d DCA

1991); Tessman Seed and Chemical Co. v. State of Minnesota, File No.

C8-89-349 (Minn. D.C. 2nd Judicial District, July 9, 1990); Merrill v. Dow

Chemical Co., File No. P188-2630 (D.C. 4th Judicial Circuit, State of Min-

nesota, County of Hennepin, May 1, 1990); Dubois v. Ray’s Feed Mill, Inc.,

File No. 8809140-NZ (Cir. Ct., Delta County, Mich., Jan. 26, 1990); Lopez

v. Chevron, Case No. 89272 (Superior Ct., Venturi County, N.Y., Dec. 11, 1989);

Paul v. NCH Corp., Index No. 48262 (Sup. Ct., Niagara County, N.Y., Dec.

ll, 1989); Rogers v. Thumb Pest Control of Florida Inc., Case No. 88-3462

(Cir. Ct. 13th Judicial Circuit of Fla., Oct. 10, 1989); Wixson v. Sonford Pro-

ducts Corp., Case No. 24,847 (Chancery Ct., Rankin County, Miss., May 1,

1989); Bolduc v. Chemed, Case No. 43-94-55 (Superior Ct., Orange County,

Cal., April 10, 1989), aff'd on other grounds, (No. G00838, Ct. of Appeals

4th Appellate District, Cal., September 24, 1990); Selvig v. Lentz Fertilizer,

Inc., File No. 85CV456 (Cir. Ct., Dunn County, Wis., Dec. 26, 1988).

Given the diversity of judicial opinions on FIFRA’s preemp-

tive effect, this Court should intervene to finally decide the ques-

tion and lend certainty to judicial proceedings throughout the

nation. The district court and the Eleventh Circuit in the ins-

tant case recognized the same by virtoe of the 28 U.S.C. § 1292(b)

certification (joined in by Zoecon) and its acceptance. Accor-

dingly, the issue is ripe for determination by this Court and ought

to be decided.

2. The Preemption Analysis Conducted

In The Decision Below Conflicts

With The Analytical Framework For

Preemption Analysis Established By

Earlier Supreme Court Opinions And

Other Circuit Court Opinions.

This Court has repeatedly made clear that preemption

analysis begins with the assumption and presumption that Con-

gress did not intend to displace state law. Maryland v. Loui-

siana, 451 U.S. 725 (1981). Recognizing the critical federalism

principles at stake, this Court has consistently admonished the

lower courts that there is a strong presumption against preemp-

tion of any type, and that preemption should not be found ab-

sent a clear and unequivocal statement of Congress’s intent to

preempt. See, e.g., Rice v. Sante Fe Elevator Corp. , 331 U.S. 218

(1947); Penn Dairies v. Milk Control Com., 318 U.S. 261 (1943).

This is particularly true in areas traditionally governed by state

and local law, such as the regulation of health and safety

matters, Florida Lime and Avocado Growers, Inc. v. Paul, 373

U.S. 132 (1963), including the compensation of victims.®

This Court has also made it plain that the presumption against

preemption is particularly strong in regard to state common law

claims when a finding of preemption would leave injured vic-

tims without any remedy. Silkwood, supra; United Construc-

tion Workers, 347 U.S. at 663-64;. Accord, Abbot by Abbot, 844

F.2d at 1113. This Court has also repeatedly stated that the in-

direct regulatory pressure asserted by common law claims is far

less intrusive on federal regulatory schemes than direct state

regulation, and that Congress may quite reasonably preempt

the latter, but leave the former intact. English v. General Elec-

tric Co., 58 U.S.L.W. 4679, 110 S.Ct. 2270 (1990); Goodyear

Atomic Corp. v. Miller, 486 U.S. 174, 185-186 (1988); Silkwood,

464 U.S. at 256. Finally, this Court’s decisions unequivocally

establish that the presumption against preemption is equally ap-

plicable to express and implied preemption analysis. See, e.g.,

Louisiana Public Service Comm'n. v. F-C.C. , 476 U.S. 355 (1986);

Hillsborough County v. Automated Med. Labs, Inc., 471 U.S.

707 (1985).

* Undoubtedly, there is an acute local interest in the instant matter, as

evidenced by the appearance of the Attorney General of the State of Florida

as amicus curiae in favor of the Petitioners in the proceedings below. This Court

is also aware of the acute local interest in the regulation of pesticides, as it

has accepted certiorari in the case of Wisconsin Public Intervenor v. Mortier,

111 S.Ct. 750 (1991), to review the Supreme Court of Wisconsin's ruling that

Wisconsin municipalities’ regulation of pesticides is preempted by FIFRA.

Disregarding all of the above, the Eleventh Circuit based its

preemption analysis on the erroneous principle set forth in its

earlier decision in Taylor, 875 F.2d at 824, that the presump-

tion against preemption does not apply in an implied preemp-

tion analysis and that, regardless of what Congress said, im-

plied preemption can be found solely on the basis of effects. The

court’s decision to discard the presumption against preemption

is, of course, directly contrary to well-established principles of

federalism, this Court’s precedents, and the holding of numerous

other federal circuit courts. See, e.g., Associated Industries of

Massachusetts v. Snow, 898 F.2d 274 (Ist Cir. 1990); Environmen-

tal Encapsulating Corp. v. New York City, 855 F. 2d 48 (2d Cir,

1988). It also makes no sense. If anything, courts should be more

hesitant to find preemption of state law when they are inferr-

ing Congress’s intent from its actions than when they are when

interpreting its express words.

The Eleventh Circuit compounded this fundamental error by

automatically equating the indirect regulatory pressure arguably

created by plaintiffs’ tort claims with the unquestionable in-

terference with federal regulation created by direct, contradic-

ting state regulations. In the Eleventh Circuit's view, plaintiffs’

common law claims must be preempted because Congress

preempted state regulations and plaintiffs’ claims might have

the same regulatory impact. Established preemption doctrine

recognizes the difference between tort law and regulatory law,

however, and says that Congress does not automatically preempt

the former when it preempts the latter, despite the latter’s

arguable regulatory impact. See, e.g., English, supra; Goodyear

Atomic Corp., supra; Silkwood, supra.

3. Whether Congress Intended FIFRA

To Preempt State Common Law Of

Inadequate Labeling Claims Is An

Important Federal Question,

Which Was Wrongly Decided Below.

The Eleventh Circuit’s finding of implied preemption in this

case is predicated on two basic conclusions. The first is that the

federal government had completely occupied the entire field of

pesticide labeling, leaving no room for state common law to aug-

ment FIFRA. The second is that jury awards of damages would

directly conflict with federal law because state common law suits

for inadequate labeling will stand as an obstacle to the ac-

complishment and execution of the full objectives of Congress.

The conclusion that the federal government has occupied the

entire field of pesticide labeling is a totally unprecedented and

unwarranted finding. This Court has repeatedly found that

federal regulations far more comprehensive than those at issue

here do not occupy the entire field, much less preempt state com-

mon law claims for damages. See, e.g., English, supra; Pacific

Gas Electric Co. v. State Energy Resources Conservation &

Development Comm., 461 U.S. 190 (1983); Silkwood, supra. In-

deed, if the Eleventh Circuit’s conclusion is correct, then

pesticide manufacturers would even be immune from state

criminal prosecution for fraud in connection with their warn-

ing labels, regardless of the outrageousness of their conduct, since

federal law which has occupied the entire field, warranted it.

See, English, 110 L.Ed. 2d at 80.

In determining that state common law suits for inadequate

labeling would stand as an obstacle to FIFRA’s purpose, the

Eleventh Circuit failed to take notice of Congress’s overriding

intent in enacting the legislation. The essential purpose of FIFRA

is to protect individuals and the environment from toxic effects

associated with pesticide use and to prevent deceptive labeling.

H.R. Rep. No. 939 100th Cong. 2d Sess. (1988) 26-27 reprinted

in 1988, U.S. Cong. and Ad. News, 3475-3476. See, also, Na-

tional Agr. Chemicals Ass’n v. Rominger, 500 F. Supp. 465 (E.D.

Cal. 1980). The Eleventh Circuit’s opinion improperly subor-

dinates that purpose to Congress’s desire for uniformity in label-

ing, but in fact, uniformity of labeling was not particularly im-

portant to Congress. Indeed, FIFRA noted, does not preclude

manufacturers of identical products from using vastly different

labels, as long as each submits its label to EPA for approval.

The Eleventh Circuit also improperly equates a jury finding that

a manufacturer must pay damages with an order that it must

change its label. As a result, it imposes a rule under which

manufacturers escape liability even if their labels are woefully

deficient, as long as the EPA approved them.

This rationale is completely at odds with the District of Col-

umbia Circuit’s recognition in Ferebee that pesticide manufac-

turers can, if they wish, continue to use their old labels (without

seeking to change them pursuant to FIFRA) and pay damages

for the resulting injuries. See, also, Goodyear Atomic Corp., 486

U.S. at 185-186, dismissing the argument that preemption must

be found if a manufacturer can comply with federal law and

still be required to pay state law based damage awards. It also

disregards the fact that, as Ferebee recognized, allowing state

common law awards for inadequate labeling does not interfere

with Congress’ objectives in enacting FIFRA, but, rather, fur-

thers Congress’s paramount purpose of safety by piquing the

interest of the EPA and giving manufacturers an incentive to

formulate and propose more adequate labels and warnings.

The Eleventh Circuit's analysis similarly fails to acknowledge

that Congress extensively amended FIFRA in 1988, after the

Ferebee decision and with full knowledge of its holding, but

did not alter FIFRA’s provisions relating to labeling other than

to add the heading “Uniformity”. By so doing, Congress ratified

and accepted the interpretation in Ferebee. See, e.g., Lorillard

v. Pons, 434 U.S. 575, 580-581 (1978).

Congress was also aware in 1988 of the EPA's inability to ade-

quately deal with inert ingredients (the culprit in the instant

case) contained in pesticide formulations, its failure to conduct

sufficient chronic toxicity testing of pesticides, and its general

inability to adequately regulate the numerous pesticides

marketed in the United States. See, United States General Ac-

counting Office, Report to Congressional Requesters, Pesticides,

EPA's Formidable Task To Assess And Regulate Their Risks (April

1986). In light of Congress's awareness of the Ferebee decision

and the EPA’s inability to adequately cope with the hazards pos-

ed by pesticides, as well as Congress's failure in 1988 to make

clear an intent to preempt state common law tort claims, one

can only conclud that Congress simply did not intend that war-

ning claims be preempted.

The Eleventh Circuit's ruling effectively means that, in many

cases, persons injured by pesticides will have no remedy what-

soever. There is no private remedy under FIFRA. Nader v. U.S.

E.P.A., 859 F.2d 747 (9th Cir. 1988); Almond Hill School v. U.S.

Dept. of Agriculture, 768 F.2d 1030 (9th Cir. 1985); Fiedler v.

Clark, 714 F.2d 77 (9th Cir. 1983); In Re: Agent Orange Pro-

duct Liability Litigation, 635 F.2d 987 (2d Cir. 1980). This

radical shift from the traditional state and federal balance of

powers -- and the elimination of remedies for pesticide poison-

ing victims -- can not be what Congress intended when it enacted

FIFRA, which, of course is totally silent on the subject of the

preemption of state common law remedies.

Indicative of the Supreme Court’s admonishments against

implied preemption resulting in the eradication of state com-

mon law remedies is this Court’s decision in Silkwood, which

stated at 251:

[I]t is difficult to believe that Congress would, without

comment, remove all means of judicial recourse for

those injured by illegal conduct.

Even the dissenting justices in Silkwood, who believed that Con-

gress had intended to preempt punitive damage awards, refus-

ed to attribute to Congress an intent to preempt compensatory

damage claims stating:

[I]t is inconceivable that Congress intended to leave

victims with no remedy at ail...

Id. at 263 (Blackmun, J. dissenting).

The Eleventh Circuit’s decision in the case at bar has resulted

in such an inconceivable situation. It should not be allowed to

stand.

4. Whether Congress Intended FIFRA

To Preempt State Common Law

Inadequate Labeling Claims

Where The EPA Has Registered A

Product And Approved Its Label On

The Basis Of False Or Inaccurate

Information Is Also An Important

Federal Question, Which Was

Wrongly Decided Below.

The plaintiff in this case, Minas Papas, is suffering from

benzene poisoning. As the petitioners have noted, while the EPA

did register Zoecon’s product and approved the label, discovery

has revealed that the EPA was never informed that Zoecon’s pro-

duct contained benzene in extremely dangerous quantities. In

Hurley, 863 F.2d at 1180, the Fifth Circuit, considering the

preeriuptive effect of an FDA approved label, held that there

is no preemption under the FDCA in such circumstances. It ruled

that summary judgment must be denied where a factual issue

remains as to whether the manufacturer provided the agency

with all necessary and available information about the propos-

ed product.

The Eleventh Circuit’s decision below rejects the Fifth Cir-

cuit’s rationale, holding that the question of whether the EPA

was provided with complete and accurate information is simp-

ly a matter to be resolved between the EPA and the manufac-

turer. Pet. App. 12. This leaves an injured party with no com-

pensation even in the extreme case in which a manufacturer pur-

posely defrauded the EPA. A manufacturer could only be sanc-

tioned by the EPA, and only in the event that the agency

discovered such a state of affairs, which is often times only

discovered through inquiries made in connection with civil tort

litigation.

The Eleventh Circuit’s decision also ignores the practical

realities involved when manufacturers submit proposed labels

to the EPA for approval. Marketing pressures are present

whereby manufacturers will seek approval of labels containing

the least ominous warnings, so as not to have consumers avoid

purchasing products which warn of potential dire consequences

when used. This would particularly be the case if manufcturers

are immunized from suit, as results from the Eleventh Circuit's

ruling. Thus, the label borne by Zoecon’s seemingly innocuous

product warned neither of its benzene content nor the serious

health disorders which could result from exposure.

In the instant case, the Eleventh Circuit's ruling creates a par-

ticularly anomalous result because, as we have noted, Zoecon’s

formulation was initially registered as a pesticide, and its label

approved by the EPA, while Upjohn’s product was determined

to be a new animal drug, and its label was approved by the FDA.

See, 7 U.S.C. § 136(u). Nevertheless, the products performed

essentially the same function, i.e., dips for dogs to rid the dogs

of fleas, lice, vermin and dermatological disorders. Thus, the

regulatory determination as to whether products such as these

are to be considered as a pesticide or a new animal drug itself

determines whether a remedy exists for inadequate warnings,

i.e., a claim for an inadequately labeled pesticide is preemp-

ted, whereas a claim relating to new animal diug regulated by

FDA is not necessarily preempted. Surely, Congress could not

have intended the decision as to whether the EPA or the FDA

approves the label to be dispositive.

For the Eleventh Circuit to find common law warning claims

are preempted by FIFRA, while a vast body of case law holds

that such claims are not preempted by the FDCA given the

similarity of the acts, is completely illogical. To find FIFRA

preemption one must determine, as the Eleventh Circuit did,

that Congress designated the EPA as being omniscient on the

subject of pesticide safety and the sine qua non on the subject.

However, since there is no FDCA preemption, it must be assum-

ed that Congress did not consider the FDA to have similar ex-

pertise in the area of food, drugs and cosmetics, products which

come into even more direct contact with human beings than

pesticides. As the court noted in Ferebee, unless FIFRA can be

viewed as an affirmative subsidization of the pesticide industry

which commands states to accept EPA approved pesticides and

their labels, it cannot be reasoned that FIFRA preempts com-

mon law warning claims. Moreover, from the facts in this case,

which establish that EPA was uninformed about Paramite’s

benzene content, it is easy to see that EPA’s approval of labels

is not the last word in product safety.

Indicative of the incongruous reasoning conducted by the

Eleventh Circuit is that court’s apparent agreement with the

holding in New York State Pesticide Coalition v. Jorling, 874

F.2d 115 (2d Cir. 1989). In Jorling, the Second Circuit held that

additional written warning requirements imposed by New York

state law were permitted by FIFRA’s use regulation provisions,

despite FIFRA’s express prohibition of direct state regulation of

labeling. While petitioners have no quarrel with that ruling,

it is astounding that the Eleventh Circuit cites it with approval.

The New York regulations at issue in Jorling required written

warnings to be posted at the location of the application of the

pesticide. FIFRA defines labeling as “all labels and other writ-

ten, printed or graphic matter accompanying the pesticide . .

. at any time”, 7 U.S.C. § 136(p). How such arguably direct state

regulation of labeling and warnings could not be found to run

afoul of FIFRA’s provisions, while the Papases’ common law

claims for damages for inadequate warning can be said to violate

Congress's intent in creating those provisions is a result which

cannot be explained.

Such illogic permeates the decision below, which leaves in-

jured parties without remedies and gives no incentive for

manufacturers to formulate safe products and adequate labels,

despite there being no evidence whatsoever that this was Con-

gress’ intent when it enacted FIFRA. Congress was well aware

of its power to preempt and the means by which to accomplish

such preemption. It simply did not preempt state common law

failure to warn claims relating to pesticides.

CONCLUSION

The petition for writ of certiorari should be granted. In the

alternative, this Court should hold the instant petition in

abeyance, pending the resolution of Cipollone.

May 27, 1991

Respectfully submitted,

Dana G. Bradford, II

(Counsel of Record)

Lee S. Haramis

BAUMER, BRADFORD, WALTERS

& LILES, P.A.

225 Water Street, Suite 2000

Jacksonville, Florida 32201

904/358-2222

Arthur H. Byrant

TRIAL LAWYERS FOR

PUBLIC JUSTICE, PC.

1625 Massachusetts Ave., NW

Suite 100

Washington, D.C. 20036

202/797-8600

Attorneys for Petitioners

APPENDIX

Minas H. PAPAS, Ollie M. Papas, his

wife, Plaintiffs-Appellants

Vv.

The UPJOHN COMPANY, a Delaware corporation qualified

to do business in the state of Florida, Zoecon Corporation,

a Delaware corporation currently doing business in the

State of Florida, Defendants-Appellees.

No. 89-3752.

United States Court of Appeals,

Eleventh Circuit.

Feb. 28, 1991.

Appeal from the United States District Court for the Middle

District of Florida.

Before ANDERSON and EDMONDSON, Circuit Judges,

and MORGAN, Senior Circuit Judge.

PER CURIAM:

Minas and Ollie Papas (“Papas”) filed a diversity action in

federal district court against the Upjohn Company and Zoecon

Corporation. The complaint alleged that Minas, while working

for ahumane society had applied certain pesticides manufactured

by Upjohn and Zoecon to dogs to rid the dogs of fleas, ticks, and

other pests. The complaint also alleged that these chemical products

caused him to suffer health problems. The complaint sounded in

negligence, strict liability, and breach of implied warranty of

merchantability, and included a derivative claim for loss of consortium.

The three main counts were, in whole or in part, claims of inadequate

labeling in the light of alleged dangers arising from exposure to

the pesticides.

Zoecon moved for partial summary judgment on the labeling

claims. It argued that the Federal Insecticide, Fungicide, and

Rodenticide Act, 7 U.S.C.A. §§ 136-136y (“FIFRA”), under which

its product is registered, preempted such claims. The district

court agreed and granted Zoecon’s motion. Having determined

that this issue involves a controlling question of law on which

there are substantial grounds for difference of opinion’ and that

an immediate appeal would materially advance the ultimate

determination of the litigation, the district court certified the

matter for interlocutory appeal, pursuant to 28 U.S.C.A. § 1292(b).

We granted the petition to appeal, and the appeal followed. We

conclude that state common law tort claims ‘or inadequate labeling

are impliedly preempted by FIFRA and, accordingly, affirm the

district court’s grant of partial summary judgment.

I. THE DOCTRINE OF FEDERAL

PREEMPTION

Federal preemption of state law is based on the supremacy

clause of the Constitution:

This Constitution and the Laws of the United States which

shall be made in Pursuance thereof; and all Treaties made, or

which shall be made, under the Authority of the United States,

shall be the supreme Law of the Land; and the Judges in

every State shall be bound thereby, any Thing in the Constitution

or Laws of any State to the Contrary notwithstanding.

Art. VI, cl. 2. Preemption can be either express or implied; it

“is compelled whether Congress’ command is explicitly stated in

the statute’s language or implicitly contained in its structure and

‘ Only one federal appellate court has considered the issue: in ferebee v. Chevron

Chemical Company 736 F.2d 1529 (D.C.Cir.1984), the court concluded that

FIFRA did not preempt state common law tort suits based on inadequate labeling.

District courts are split on the issue. Cases finding preemption include Hurt v.

Dow Chem. Co., No. 90-0783-C(3) (E.D.Mo. Sept. 28, 1990); Kennan v. Dow

Chem. Co., 717 F.Supp. 799 (M.D.Fla. 1989); Fisher v. Chevron Chem. Co., 716

F.Supp. 1283 (W.D.Mo. 1989); Herr v. Carolina Log Bldgs., Inc., No. EV 85-262-

C (S.D.ind. Dept. 22, 1989); Watson v. Orkin Exterminating Co., No. JFM-88-

2427 (D.Md. Nov. 8, 1988); and Fitzgerald v. Mallinckrodt, Inc , 681 F.Supp. 404

(E.D.Mich. 1987). Cases in which district courts found no preemption include

Arkansas Platte & Gulf Partnership v. Van Waters & Rogers, Inc., 748 F.Supp.

1474 (D.Colo. 1990); Evenson v. Osmose Wood Preserving, Inc. & American

Wood Preservers Inst., No. IP 87-383-C (S$.D.Ind. Sept. 18, 1990); Stewart v.

Ortho Consumer Products, 1990 WL 36129 (E.D.La. 1990); Cox v. Velsicol Chem.

Corp., 704 F.Supp. 85 (E.D.Pa. 1989); Whitener v. Reilly Indus., Inc., No. 87-

5224 (S.D.Ill. 1989); Roberts v. Dow Chem. Co., 702 F.Supp. 195 (N.D.Ill. 1988);

and Wilson v. Chevron Chem. Co., 1986 WL 14925 (S.D.N.Y. 1986).

Ne le PY Rea it ce ay ee nt

purpose.” Fidelity Fed. Sav. & Loan Ass’n v. De La Cuesta, 458

U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982) (quoting

Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309,

51 L.Ed.2d 604 (1977)).

Preemption can be inferred

(1) “when there is outright or actual conflict between federal

and state law;”

(2) “where compliance with both federal and state law is in

effect physically impossible; “

(3) “where there is implicit in federal law a barrier to state

regulation;”

(4) “where Congress has legislated comprehensively, thus occupying

an entire field of regulation and leaving no room for the States

to supplement federal law;” or

(5) “where the state law stands as an obstacle to the accomplishment

and execution of the full objectives of Congress. “

Louisiana Public Service Comm'n v. F. C. C., 476 U.S. 355, 368-69,

106 S.Ct. 1890, 1898, 90 L.Ed.2d 369 (1986) (citations omitted):

see also International Paper Co. v. Ouellette, 479 U.S. 481, 491-92,

107 S.Ct. 805, 811, 93 L.Ed.2d 883 (1987); Hillsborough County,

Fla. v. Automated .Med. Labs., 471 U.S. 707, 713, 105 S.Ct. 2371,

2375, 85 L.Ed.2d 714 (1985); De La Cuesta, 458 U.S. at 153, 102

S.Ct. at 3022; Taylor v. General Motors Corp., 875 F.2d 816, 822,

825-26 (Ith Cir.1989); Stephen v. American Brands, Inc., 825 F.2d

312, 313 (llth Cir. 1987). A state law - even ifit has the same ultimate

goal as a federal law - may, stand as an obstacle to the fullimplementation

of a federal law and therefore be preempted “if it interferes with

the methods by which the federal statute was designed to reach this

goal” Ouellette, 479 U.S. at 494, 107 S.Ct. at 813.

The principle of implied preemption “applies whether the

federal law is embodied in a statute or regulation, and whether

the state law is rooted in a statute, regulation, or common law

rule.” Taylor, 875 F .2d at 826 (citations omitted). Accord Ouellette,

479 U.S. at 494-95, 499 n. 20 107 S.Ct. at 813, 815 n. 20 (state

nuisance suits preempted by Clean Water Act); Louisiana Public

Service Comm'n, 476 U.S. at 369, 106 S.Ct. at 1898-99 (federal

agency action may preempt state regulation); Automated Med.

Labs., 471 U.S. at 713, 105 S.Ct. at 2375 (federal regulations

can preempt state law); Cipollone v. Ligget Group, Inc., 789

F.2d 181, 187 (3d Cir.1986) (state common law damage actions

can have effect of imposing requirements which create obstacle

to accomplishment of “full purposes and objectives of Congress”)

(decision and reasoning adopted by Eleventh Circuit in Stephen

v. American Brands, Inc., 825 F.2d at 313). Thus, we have

recognized that the “imposition of damages under state tort law

has long been held to be a form of state regulation subject to

the supremacy clause.” Taylor, 875 F.2d at 824 n. 16 (citing

San Diego Building Trades Council v. Garmon, 359 U.S. 236,

79 S.Ct. 773, 3 L.Ed.2d 775 (1959)).

The critical question in considering whether state law is preempted

by federal law is Congressional intent -that is, “whether Congress

intended that federal regulation supersede state law.” Louisiana

Public Service Comm'n, 476 U.S. at 369, 106 S.Ct. at 1899. “[I]n

implied preemption analysis it is possible to infer preemptive intent

solely from effects”: even if statutory language or legislative history

is unclear, federal law preempts state law if “the ordinary application

of the two laws creates a conflict.” Taylor, 875 F.2d at 826.

II. THE FIFRA SCHEME Of PESTICIDE

REGULATION AND LABELING

FIFRA, initially enacted in 1917, was completely revised in

1972, when the responsibility for its enforcement was transferred

to the Environmental Protection Agency (“EPA”) from the Department

of Agriculture. The Senate Committee on Agriculture and Forestry,

to which the bill was referred, identified two purposes of the 1972

revisions to FIFRA: to “(A) regulate the use of pesticides to protect

man and his environment; and (B) extend Federal pesticide regulation

to actions entirely within a single State.” S.Rep. No. 92-838, 92d

Cong. 2d Sess., reprinted in 1972 U.S. Code Cong. & Admin.

News 3993. At that time, FIFRA was amended to define “protect

health and the environment” and “protection of health and the

environment” as “protection against any unreasonable adverse

effects on the environment.” 7 U.S. C.A. § 136(x). “Unreasonable

adverse effects on the environment” was, in turn, defined as “any

unreasonable risk to man or the environment, taking into account

rN ve eee ee ON See een Te rare et et Tenet at Senate ITN a wNU Ser:

the economic, social, and environmental costs and benefits of the

use of any pesticide.” 7 U.S.C.A. § 136(bb).

FIFRA’s legislative history indicates that Congress intended

to establish a comprehensive regulatory scheme in which the EPA

Administrator would be responsible for determining whether to

recognized that the control of pesticides required a careful balancing

of benefit against risk:

While appropriate pesticides properly used are essential to

man and his environment, many constitute poisons that are

too dangerous to be used for any purpose. Others are dangerous

unless used extremely carefully . . . Pesticides therefore have

important environmental effects, both beneficial and deleterious.

Their wise control based on a careful balancing of benefit

versus risk to determine what is best for man is essential.

S.Rep. No. 92-838, 92d Cong. 2d Sess., reprinted in 1972 US.

Code Cong. & Admin.News at 3996. The EPA administrator was

designated as the entity to conduct the balancing analysis:

The question [the Administrator] must decide is “Is it better

for man and the environment to register this pesticide, or is it

better that this pesticide be banned?” He must consider hazards

to farmworkers, hazards to birds and animals and children yet

unborn. He must consider the need for food and clothing and

forest products, forest and grassland cover to keep the rain

when it falls, prevent floods, provide clear water. He must

consider aesthetic values, the beauty and inspiration of nature,

the comfort and health of man. Ail these factors he must

consider, giving each its due. No one should be given undue

consideration, no one should be singled out for special mention,

no one should be considered a “vital” criterion.

Foreach pesticide the Administrator must ask the same question...

In each case the Administrator must take into account all

relevant factors and decide whether it is better for man and

the environment that this product be registered.

Id. at 4032-33. Under FIFRA, the Administrator is required to

any restrictions imposed on it, the pesticide warrants the proposed

claims made for it; its labeling and other materials comply with

FIFRA requirements; it will perform its intended purpose without

unreasonable adverse effects on the environment; and when used

in accordance with common practice, it will not generally cause

unreasonable adverse effects on the environment. See 7 U.S.C.A.

§ 136 a(c)5).

In this comprehensive regulatory scheme for pesticides, Congress

delineated the extent to which the states could regulate pesticides

in section 136v:

§ 136v. 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

bv 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.

(1) A State may provide registration for additional uses of

federally registered pesticides formulated for distribution

and use within that State to meet special local needs in

accord with the purposes of this subchapter and if registration

for such use has not previously been denied, disapproved,

or canceled by the Administrator...

7 U.S.C.A. § 136v (West 1980 & Supp.1990) (subsection headings

added by 1988 amendment).

The statute’s language, by itself, is a powerful limit on state

power over labeling. A report accompanying the bill, as originally

reported out of the House Committee, also indicated the limits on

state power due to the division of authority between the federal

and state governments: “In dividing the responsibility between the

States and the Federal Government for the management of an

effective pesticide program, the Committee had adopted language

which is intended to completely preempt State authority in regard

to labeling and packaging.” H.R.Rep. 92-511, 92d Cong. Ist Sess.

16 (1971). Congress recognized that, while the intent of this provision

was “to leave to the States the authority to impose stricter regulation

on pesticides use than that required under the Act,” subsection (b)

preempted “any State labeling or packaging requirements differing

from such requirements under the Act.” S.Rep. 92-838, 92d Cong.2d

Sess., reprinted in 1972 U.S.Code Cong. & Admin.News at 4021

(emphasis supplied); see also S.Rep. 92-970, 92d Cong.2d Sess.,

reprinted in 1972 U.S.Code Cong. & Admin.News 4092, 4128.

FIFRA directs that States “shall not impose or continue in

effect any requirements for labeling or packaging” beyond the

requirements imposed by FIFRA. Given FIFRA’s words and its

legislative history, FIFRA may expressly preempt state common

law actions of the kind before us, just as FIFRA preempts other

legal requirements in the form of state statutes and regulations.

But, mindful that “Congress has long demonstrated an aptitude

for expressly barring common law actions when it so desires,”

Taylor, 875 F.2d at 824, we admit to a little uncertainty and pass

over the question of express preemption. Instead, we will decide

whether federal preemption of state common law tort claims

based on labeling deficiencies can be inferred from FIFRA and

the labeling regulations promulgated under it.

III. STATE COMMON LAW TORT LABELING

CLAIMS IMPLIEDLY PREEMPTED BY FIFRA

Under FIFRA, the federal government— through the EPA—

has the sole and exclusive right to regulate pesticide labels. While

states can regulate the sale or use of federally registered pesticides,

no state can “impose or continue in effect any requirements for

labeling or packaging [of pesticides] in addition to or different

from” those required by FIFRA. 7 U.S.C.A. § 136v(b).

In 40 C.F.R. Part 156, the EPA has regulated almost every

aspect of pesticide labeling. The EPA specifically regulates the

manner in which warnings and precautionary statements for the

pesticides are to be presented and provides specific requirements

about the content, placement, type size, and prominence of the

wernings and precautionary statements. See 40 C.F.R. § 156.10(h)

(1990). These warnings and precautionary statements concern

the toxicological hazards of the pesticide, including “hazard to

children, environmental hazard and physical and chemical hazard.”

Id. The EPA also requires that a statement of practical treatment

(that is, first aid or other treatment) for each pesticide appear on

the label. 40 C.F.R. § 156.10(h)(1)(iii). Additional warnings and

precautionary statements about risks to humans are required

under the heading “Precautionary Statements” and the subheading

“Hazard to Humans and Domestic Animal.”* Typical precautionary

statements are prescribed which must be modified or expanded

to reflect specific hazards.” See 40 C.F.R. § 156.10(h)(2)(i)(B)

and table.’ In addition, the EPA requires that pesticide labels

must contain directions for use stated in terms “which can be

easily read and understood by the average person likely to use or

to supervise the use of the pesticide.” 40 C.F.R. § 156.10(i)(1)(i).

These directions, when followed, “must be adequate to protect

the public from fraud and from personal injury and to prevent

unreasonable adverse effects on the environment.” Id.‘ It is in

the light of these comprehensive regulations that the EPA approves

a specific label for each pesticide.

We conclude that FIFRA impliedly preempts state common

law tort actions based on labeling claims in several ways. First,

having considered FIFRA’s express prohibition of state labeling

requirements in addition to those required under FIFRA, 7 U.S.C.A.

§ 136v(b), and having examined the labeling regulations adopted

* The EPA requires that if a hazard exists to humans or domestic animals, these

precautionary statements must indicate (1) “the particular hazard,” (2) “the route(s)

of exposure,” and (3) “the precautions to be taken to avoid accident, injury or

damage.” 40C.F.R. § 156.10(h)(2)i)(A). The precautionary statements indicate

whether protective equipment or garments are necessary when applying the pesticide.

* A pesticide is considered misbranded if “the label does not contain a warning or

caution statement which may be necessary” and which if complied with, “is adequate

to protect health and the environment.” 7 U.S.C.A. § 136(q)(1)(G). A manufacturer

is subject to penalties under FIFRA if its pesticide is misbranded.

“ In addition, a pesticide is considered misbranded—and a manufacturer subject

to various penalties, including registration revocation—if the labeling “does not

contain directions for use which are necessary for effecting the purpose for which

the product is intended and if complied with ... are adequate to protect health and

the environment.” 7 U.S.C.A. § 136(q)(1)(F). “The basic purpose of the statute [is]

to regulate the labelling of such products to provide purchasers with assurance of

effectiveness and safety when used in compliance with the manufacturer's instructions.”

Roberts v. Dow Chemical Co. 702 F.Supp. 195, 196 (N.D. IIl.1988) (quoting

Continental Chemiste Corp. v. Ruckelshaus 461 F.2d 331, 335 (7th Cir.1972)).

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pursuant to FIFRA, see supra, we hold that the federal government

has occupied the entire field of labeling regulation, leaving no

room for the states to supplement federal law, even by means of

state common law tort actions.

We also hold that jury awards of damages in such tort actions

would result in direct conflict with federal law. For EPA registered

pesticides, the warning and use statements present on the labels

indicate that the EPA has determined that those statements are

adequate to protect man and the environment: that the pesticide as

labeled does not pose “any unreasonable risk to man or the environment,

taking into account the economic, social, and environmental costs

and benefits of the use of any pesticide.” See 7 U.S.C.A. §§ 136(q)(1)(F),

136(q)(1)(G), 136(bb); 40 C.F.R. §§ 156.10(h), 156.10(i). Thus, a

jury determination, via a state common tort judgment, that a pesticide’s

labeling is inadequate results in a direct conflict with the EPA’s

determination that the labeling is adequate to protect against health

risks. Such a jury determination is also in direct conflict with the

Congressional intent that the EPA Administrator determine the

reasonableness of the risks to man and the environment posed by

pesticides, at least with respect to the labeling of pesticides.*

In addition, allowing state common law tort suits for inadequate

labeling would “stand as an obstacle to the accomplishment and

execution of the full objectives of Congress.” One of the EPA’s

objectives in its labeling regulations is the uniformity of labeling

* The states are specifically permitted to meke such determinations with respect

to the “sale or use” of pesticides, as long as they do not permit any sale or use

prohibited by the federal government under FIFRA. See 7 U.S.C.A. § 136v(a).

New York State Pesticide Coalition Inc. v. Jorling 874 F.2d 115 (2d Cir.1989), is

instructive about the respective authority of the state and federal governments to

regulate pesticides under FIFRA. In Jorling the Second Circuit upheld certain

state notification requirements placed on commercial pesticide applicators. It

noted that “(t]he states have joint control with the federal government in regulating

the use of pesticides, for the safety of its citizens and the environment .. . with the

exception of the EPA’s exclusive supervision of labeling.” 874 F.2d at 118 (citation

omitted). It drew a distinction between FIFRA labeling which “is designed to be

read and followed by the end user,” and notification requirements—regulation on

pesticide use—placed on particular end users (professional pesticide applicators)

which require them to provide certain information to those who contract to have

pesticide applied, and to members of the public who may be exposed to the

chemicals as a result of their application to public areas. Id. at 119.

across the nation and among (1) different brands of the same pesticide,

(2) different pesticides performing the same function, and (3) different

pesticides posing the same or similar risks to health and the environment.

See 40 C.F.R. Part 156° This objective of achieving uniformity in

labeling was endorsed by Congress: in 1988, without changing the

language of § 136v(b) which prohibits state regulation of pesticide

labeling and packaging, Congress added the heading “Uniformity”

to this section. A jury determination that a label was inadequate

would require that the manufacturer change the label) or risk additional

suits for damages. Such a change, if permitted by the EPA, would

destroy the uniformity that Congresss and the EPA seeks to achieve

in pesticide labeling because the warning label for that pesticide

would not be based on the same criteria the EPA uses to establish

warnings for all other pesticides.

It might be possible for a manufacturer to comply with both

federal regulations and the requirements of state common law as

dictated by state law damages awards against pesticide manufacturers,

see Ferebee, 736 F.2d at 1541-42, but the pressure of such awards

would interfere with the EPA’s regulatory process because

manufacturers would likely press the EPA to change its labeling

requirements to reflect the jury awards so as to free the manufacturer

from future tort liability for the same jury-found “inadequacies”

in labeling. See Kennan v. Dow Chem. Co., 717 F.Supp. 799,

806-07 (M.D.Fla. 1989); Fitzgerald v. Mallinckrodt, Inc., 681

F.Supp. 404, 107 (E.D.Mich.1987); see also Palmer v. Liggett

Group, Inc. 825 F.2d 620, 627-28 (Ist Cir.1987) (damages awards

* This desire for uniformity is particularly evident in the regulation of pesticide

warnings. Pesticides are grouped into four human toxicity categories based on

selected hazard indicators, which include oral, inhalation, and dermal toxicity

indicators and the effects of pesticide contact with eyes or skin. See table at 40

C.F.R. § 156.10(h)(1). The text of the warning on the front panel of the label is

based on the pesticide’s toxicity category. 40 C.F .R. § 156.10(h)(1). EPA regulations

dictate which of four signal words can be used on the front panel of the label,

depending on the toxicity category into which the pesticide falls—”Danger” and/

or “Poison” for category I; “Warning” for category II; and “Caution” for categories

Ill and IV.40C.F R. §§ 156.10(hX 1XiXA)—156.10(hX1 iD). A pesticide manufacturer

is not allowed to use “signal word(s) associated with a higher Toxicity Category” on

its label, unless the EPA determines that “such labeling is necessary to prevent

unreasonable adverse effects on man or the environment.” 40C.F.R. § 156.10(hX1iXE).

In addition, a manufacturer cannot put more than one human hazard signal word

on the front panel of the label. Id.

28 ex

for inadequate labeling preempted by Federal Cigarette Labeling

and Advertisir.g Act). This case-by-case, state-by-state outside

pressure on the regulatory process would hinder the development

of an orderly, systematic, and uniform nationwide labeling scheme.

In this way, state common law tort suits based on labeling claims

would also “stand as an obstacle to the accomplishment and execution

of the full objectives of Congress” even if such suits led to “better” or

“more adequate” labels, thereby serving FIFRA’s goal of regulating

pesticides “to protect man and his environment.” A state law action

which shares the same purpose as the federal law in question is preempted

if it attempts to achieve that purpose by a method which interferes

with the federal methods; as the Supreme Court said in Ouellette,

it is not enough to say that the ultimate goal of both federal

and state law is to eliminate water pollution. A state law also

is preempted if it interferes with the methods by which the

federal statute was designed to reach this goal.

479 US. at 494, 107 S.Ct. at 813. For the labeling of pesticides, the

EPA evaluates the toxicological data of any individual pesticide in

comparison with the toxicological data for other pesticides, to achieve

the protection of “man and his environment” through a labeling

system that is uniform and consistent across the broad spectrum of

pesticides. A jury's imposition of damages in a state tort suit premised

on labeling claims would disrupt the methods by which FIFRA

protects man and the environment because it would inject irrelevant

considerations into the EPA’s evaluation of a pesticide and its

labeling and would second guess the EPA’s conclusions.’

Allowing state common law tort actions based on labeling

claims would permit state court juries to do what state legislatures

and state administrative agencies are forbidden to do: impose

7. As the Supreme Court noted in the context of the Clean Air Act,

[s]uch penalties would compel the source to adopt different control standards

and a different compliance schedule from those approved by the EPA, even

though the affected State had not engaged in the same weighing of the costs

and benefits.... If the Vermont court ruled that respondents were entitled to

the full amount of damages and injunctive relief sought in the complaint, at

a minimum IPC would have to change its methods of doing business and

controlling pollution to avoid the threat of ongoing liability... The inevitable

result of such suits would be that Vermont and other States could do indirectly

what they could not do directly—regulate the conduct of out-of-state concerns.

Ouellete 479 U.S. at 495, 107 S.Ct. at 813.

requirements for labeling pesticides. As we have stated before,

the “imposition of damages under state tort law has long been

held to be a form of state regulation subject to the supremacy

clause.” Taylor, 875 F .2d at 824 n. 16. Considering our understanding

of Congress’s intent, we decline to permit such state regulation.

IV. CONCLUSION

We hold that FIFRA impliedly preempts state common law

tort suits against manufacturers of EPA-registered pesticides to

the extent that such actions are based on claims of inadequate

labeling.*

The judgment of the district court is AFFIRMED.

* Papas contends that even if we hold that FIFRA preempts state common law tort

suits based on labeling claims, we should recognize an exception for instances in

which, as Papas says exists here, a manufacturer has failed to provide the EPA

with complete information on the pesticide. See Hurley v. Lederle Labs. Div. of

American Cyanamid Co. 863 F.2d 1173, 1179-80 (Sth Cir.1988). To the extent

that Hurley purports to recognize an exception to federal preemption of common

law tort labeling claims when the federal statute involved explicitly prohibits state

regulation of labeling and the federal agency has received incomplete information

from the manufacturer, we reject its holding at least as applied to FIFRA-

pesticides. Given the FIFRA regulatory scheme, it would be up to the EPA—and

not a jury—to determine first (1) whether the information provided was incomplete

or inaccurate; (2) whether the omitted information is significant enough to mandate

a change in the label; and (3) how, if at all, the label should be corrected.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MINAS H. PAPAS and OLLIE

M. PAPAS, his wife,

Plaintiffs,

vs. Case No. 86-116-Civ-J-14

THE UPJOHN COMPANY, a Delaware

corporation qualified to do

business in the State of

Florida, and ZOECON CORPORATION,

a Delaware corporation currently

doing business in the State of Florida,

Defendants.

ORDER AND PARTIAL SUMMARY JUDGMENT

I. Defendant’s Motion For Partial Summary Judgement

This case came on to be heard on Defendant Zoecon Corporation's

Motion For Partial Summary Final Judgment, filed April 10, 1989;

Plaintiffs’ Motion For Leave To File Amended Complaint And For

Leave To Join Koch Refining Company As Defendant, filed May

24, 1989; and plaintiffs’ Motion To Defer Consideration And Ruling

Upon Defendant Zoecon’s Motion For Partial Summary Judgment,

filed May 24, 1989. The Court heard oral argument on May 26,

1989.

Defendant Zoecon argues that plaintiffs’ claims for negligence,

strict liability, and implied warranty are preempted by the Federal

Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136, et seq.,

{hereinafter "FIFRA"], to the extent that the claims are based on

defendant’s failure to warn about the dangers of Paramite. The

Court shall review the legislative history of FIFRA and determine

whether or not FIFRA preempts plaintiff's claims based on defendant's

failure to warn.

A. Standard To Be Applied On Summary Judgment

A district court’s review of a case on a motion for summary

judgment is governed by Fed.R.Civ.P. 56. A moving party discharges

its burden on a motion for summary judgment by “showing” or

“pointing out” to the district court that there is an absence of

evidence to support the nonmoving party's case. See Celotex Corp.

v. Catrett, 477 U.S. 317, 325 (1986). Fed.R.Civ.P. 56 permits the

moving party to discharge its burden with or without supporting

affidavits and to move for summary judgment on the case as a

whole or on any claim. 477 U.S. at 325. When a moving party has

so discharged its burden, the nonmoving party must then “go beyond

the pleadings and by her own affidavits, or by the ‘depositions,

answers to interrogatories, and admissions on file, 'designate' specific

facts showing that there is a genuine issue for trial.”” 477 U.S. at

324.

The district court must enter summary judgment “after adequate

time for discovery and upon motion, against a party who fails to

make a showing sufficient to establish the existence of an element

essential to that party's case, and on which that party will bear the

burden of proof at trial.” 477 U.S. at 322; Fed.R.Civ.P. 56(c). See

also Reflectone, Inc. v. Farrand Optical Co., Inc., 862 F.2d 841,

843-4 (11th Cir. 1989). Whether or not the moving party has met

its burden of establishing that there is no genuine issue as to any

material fact and that he is entitled to judgment as a matter of law,

requires the court to draw inferences from the evidence as viewed

in the light most favorable to the nonmoving party, and to resolve

all reasonable doubts in that party's favor.

The Eleventh Circuit Court of Appeals explained the

reasonableness standard in WSB-TV v. Lee, 842 F.2d 1266,

1270 (1ith Cir. 1988):

In deciding whether an inference is reasonable, the court

must “cull the universe of possible inferences from the facts

established by weighing each against the abstract standard of

reasonableness.” . . . The opposing party’s inferences need

not be more probable than those inferences in favor of the

movant to create a factual dispute, so long as they reasonably

may be drawn from the facts. ... When more than one inference

reasonably can be drawn, it is for the trier of fact to determine

the proper one.

842 F.2d at 1270 (citations omitted).

Fed.R.Civ.P. 56(c) requires the district court to deny a motion

for summary judgment if the court finds that there exists a genuine

issue for trial. What constitutes a “genuine issue for trial” was

addressed by the Supreme Court in Anderson v. Liberty Lobby.

Inc., 477 U.S. 242 (1986). In Anderson, the Court stated that “summary

Judgment will not lie if the dispute about a material fact is ‘genuine,’

that is if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” 477 U.S. at 248. The Court further

stated that the inquiry is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” 477 U.S.

at 251-52.

The Court finds that the parties have had adequate time to

conduct discovery in this case. The Court will, therefore, address

the motion for partial summary judgment.

B. Preemption Of State Tort Law By FIFRA

1. The Concept of Federal Preemption

The doctrine of preemption is based on Article VI, Clause 2

of the United States Constitution which provides:

The Constitution and the Laws of the United States

which shall be made in Pursuance thereof . . . shall be

the supreme Law of the Land; and the Judges in every

State shall be bound thereby, any Thing in the Constitution

or Laws of any State to the Contrary notwithstanding .

Preemption is deemed mandatory when Congress expresses

a clear intent to preempt state law, where there is a conflict between

state and federal law, where compliance with both state and federal

law is impossible, where federal law implicitly bars state regulation,

where Congress has legislated comprehensively, or where state law

serves as an obstacle to federal objectives. Public Service Commission

v. Federal Communications Commission, 476 U.S. 355, 368-69

(1986) Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984). This

Court has recognized that, in deciding whether a federal statute

preempts state law, “the Court must ascertain Congressional intent

in enacting the federal statute at issue." Blue Cross and Blue Shield

of Florida. Inc. v. Department of Banking and Finance, 613 F.

Supp. 188, 191 (M.D. Fla. 1985), affd 791 F.2d 1501 (11th Cir.

1986). An analysis of the legislative history and the specific provisions

of FIFRA reveals that in enacting FIFRA Congress expressly intended

to preempt state labeling requirements.

2. Legislative History of FIFRA

FIFRA represents the federal government's detailed comprehensive

system for the strict regulation of pesticides. FIFRA was enacted in

June, 1947, to replace and expand the protection afforded by the

Insecticide Act of 1910, the first federal act regulating the pesticide

industry. H.R. Rep. No. 313, 80th Cong., 1st Sess., reprinted in

1947 U.S. Code Cong. & Ad. News 1200, 1201. The 1947 Act gave

the United States Department of Agriculture authority over the

regulation, registration and labeling of “economic poisons and devices.”

In 1972, FIFRA was completely revised. Responsibility for

enforcement of FIFRA was transferred from the Department of

Agriculture to the newly created Environmental Protection Agency

{hereinafter “EPA”]. The two major goals of the 1972 revisions

were to “regulate the use of pesticides to protect man and his

environment” and to “extend Federal pesticide regulations to actions

entirely within a single State.” S. Rep. No. 92-838, 92d Cong. 2d

Sess., reprinted in 1972 U.S. Code Cong. & Ad. News 3993 (emphasis

added). The intent to create a comprehensive regulatory statute is

demonstrated by the President’s environmental message included

in the Senate report on the proposed 1972 Act. It noted, in pertinent

part, that:

Currently, Federal controls over pesticides consist of

the regulation of the registration and labeling requirements

of the Federal Insecticide, Fungicide and Rodenticide

Act. The administrative processes contained in the

law are inordinately cumbersome and time consuming,

and there is no authority to deal with the actual use

of pesticides. The labels approved under the Act specify

uses to which pesticide may be put, but there is no

way to insure that the label will be read or obeyed.

The comprehensive strengthening of our pesticide

control laws is needed.

S. Rep. No. 92-970, 92d Cong., 2d Sess., reprinted in 1972 U.S.

Code Cong. & Ad. News 4092, 4093-94.

Both the House and Senate bills explicitly detail the desire for

federal preemption concerning labeling. The House bill provides:

Section 23. AUTHORITY OF STATES

Subsection (b) preempts any State labeling or packaging

requirements differing from such requirements under

the Act.

H.R. 10729, 92d Cong., 2d Sess., reprinted in 1972 U.S. Code

Cong. & Ad. News 4010, 4021 (emphasis added). Similarly, the

Senate bill provides:

Section 24. AUTHORITY OF STATES

Subsection (b) preempts any State or local government

labeling or packaging requirements differing from

such requirements under the Act.

S. Rep. No. 92-970, 92d Cong., 2d Sess., reprinted in 1972 U.S.

Code Cong. & Ad. News 4092, 4128 (emphasis added). Therefore,

it is clear that the express istent of Congzess in enacting the 1972

revisions to FIFRA was to preempt state regulation of labeling

requirements. The authority to promulgate such regulations was

reserved exclusively for the EPA.

3. Preemption Of State law By FIFRA

FIFRA is explicit as to the preemption of state authority to

regulate pesticide labeling. It specifically provides that:

Such State shall not impose or continue in effect any

requirements for labeling or packaging in addition to or

different from those required under this subchapter.

7 U.S.C. § 136v(b). The statutory language of FIFRA creates a

prohibition of “any requirements for labeling” by states. Similarly

FIFRA SS legislative history demonstrate a definitive congressional

mandate that the regulation of pesticide labeling be controlled

solely by the EPA." It is clear that Congress has legislated comprehensively,

barring the states from interfering with the regulation of pesticide

labels .

4. Judicial Precedent in Support of

FIFRA Preemption

FIFRA’s preemption of state law claims based on theories of

negligent labeling and failure to warn was recognized in Fitzgerald

v. Mallinckrodt, 681 F. Supp. 404 (E.D. Mich. 1987). In Fitzgerald

plaintiff alleged personal injuries resulting from his exposure to

defendant’s chemical product, Calo-Clor, during the course of his

* Pursuant to FIFRA, the EPA has enacted a series of regulations. Pursuant to 7

U.S.C. § 136a(c)(5)(C), the administrator of the EPA shall register a pesticide if he

determines, inter alia, that it will perform its intended function without “unreasonably

adverse effects” on man or the environment. A pesticide that is duly registered

with the EPA must bear a label which contains EPA-approved warnings that the

product is adequate to protect health and the environment. 7 U.S.C. § 136(q)(1)(G).

Moreover, a label cannot contain language that is not approved by the EPA. 40

C.F.R. 162.10(a) Pursuant to the regulations promulgated under FIFRA, the

EPA not only specifies the particular warning language required, see 40 C.F .R. §

162.10(a)(1), but also the type size, see 40 C.F.R. 162.10(a)(2)(iiXA), color, see 40

C.F.R. 162.10(a)2)(iiX B), and placement, see 40 C.F .R. 162.10(a)(4), of the warning

and all other specifications concerning labeling.

Pen Cee

employment. Calo-Clor is an inorganic mercury-based fungicide

which was registered with the EPA pursuant to FIFRA.

In granting summary judgment to the defendant on the basis

of preemption, the Court recognized that in enacting FIFRA “Congress

had enacted a comprehensive system for the registration and

labeling of pesticides.” 681 F'. Supp. at 406 (emphasis added). The

Court determined that “any state law tort recovery based on failure

to warn theory, would abrogate the Congress’ intent to provide

uniform regulations governing the labeling of pesticides.” Id. at

407.

In reaching its conclusion that state tort claims were preempted

by FIFRA, the Court in Fitzgerald considered and rejected an

earlier contrary holding in Ferebee v. Chevron Chemical Company,

736 F.2d 1529 (D.C. Cir.), cert. denied, 469 U.S. 1062 (1984).

Instead, the court relied on the recent holding in Palmer v. Liggett

Group. Inc., 825 F.2d 620 (1st Cir. 1987), cert. denied, 1989 U.S.

LEXIS 338, where the First Circuit reasoned that a finding that a

label is inadequate under a state tort theory,

effectively compels the manufacturer to alter its warning

toconform to different state law requirements as “promulgated”

by a jury's findings . . . . This challenge to the federal

warning label’s sufficiency-——surely contravenes the Act's

policy of uniform labeling . . . . Indeed, it arrogates to a

single jury the regulatory power explicitly denied to all

fifty states’ legislative bodies

Fitzgerald, 681 F. Supp. at 407, (quoting Palmer v. Liggett Group.

Inc., 825 F-2d at 627-28). See also Cipollone v. Liggett Group.

Inc., 789 F.2d 181 (3rd Cir. 1986) (finding the Federal Cigarette

Labeling and Advertising Act preempts state tort claims based on

alleged inadequacy of warnings).

The reasoning of Fitzgerald applies in this action. To permit

additional labeling requirements to be imposed under state common

law “would effectively authorize the state to do through the back

door” that which was expressly preempted through the front. Fitzgerald,

681 F. Supp. at 407.

Plaintiffs’ argument against preemption is primarily based

upon Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C. Cir.

1984), which held that FIFRA does not preempt state tort actions

based on the inadequacy of an EPA-approved label. Central to the

decision in Ferebee was the determination that a state court jury

verdict does not automatically “require” a manufacturer to change

its labels, but rather leaves to the manufacturer the “choice of how

to react” to such jury verdict. Id. at 1542. (“Chevron can continue

to use the EPA-approved label and can at the same time pay damages

to successful tort plaintiffs such as Mr. Ferebee; alternatively, Chevron

can petition the EPA to allow the label to be made more comprehensive.”

This Court must reject any argument holding that a state

court jury verdict would merely leave to the manufacturer the

“choice of how to react” to such jury verdict and would not

automatically “require” a manufacturer to change its labels. As

the First Circuit noted in Palmer:

This “choice of reaction” seems akin to the free

choice of coming up for air after being underwater.

Once a jury has found a label inadequate under state

law, and the manufacturer liable for damages for negligently

employing it, it is unthinkable that any manufacturer

would not immediately take steps to minimize its exposure

to continued liability. The most obvious change it

can take, of course, is to change its label.

Palmer v. Liggett Group, 825 F.2d at 627-28 (emphasis added).

This “choice of reaction” analysis was expressly considered

and rejected in Fitzgerald v. Mallinckrodt. Inc., 681 F. Supp. 404

(E.D. Mich. 1987), in which it was held that FIFRA preempts state

tort actions based on the inadequacy of an EPA-approved label.

Most recently, the “choice of reaction” analysis has been rejected

by the United States Supreme Court in International Paper Company

v. Ouellette, 479 U.S. 481 (1987).

Ouellette involved an action against a paper mill located in

New York State that discharged effluent into Lake Champlain pursuant

to a discharge permit issued under the Clean Water Act, 33 U.S.C.

§ 1251, et. seq. Plaintiffs, residents of Vermont, filed suit against

the paper mill alleging that the discharge constituted a common-

law nuisance under Vermont law. A preemption argument was

raised based upon the Clean Water Act’s prohibition of state regulation

of an out-of-state “source” of discharged effluent. The Supreme

Court held that the Clean Water Act preempted the common-law

nuisance action. In doing so, the Court noted:

The affected state’s nuisance laws would subject [International

Paper] to the threat of legal and equitable penalties . . . .

Such penalties would compel the source to adopt

different control standards and a different compliance

schedule from those approved by the EPA ....

Ouellette, 479 U.S.at 495 (emphasis added). Additionally, the Court

held that:

If the Vermont court ruled that respondents were

entitled to the full amount of damages and injunctive

relief sought in the complaint, at a minimum [International

Paper] would have to change its methods of doing

business and controlling pollution to avoid the threat

of ongoing liability . ... The inevitable result of such

suits would be that Vermont and other states coula

do indirectly what they could not do directly—regulate

the conduct of out-of-state sources.

Id. (emphasis added).

Although the Eleventh Circuit Court of Appeals has not specifically

considered whether or not FIFRA preempts state common law

torts that impose requirements for insecticide labels, the court has

in a recent case affirmed the principle that a State regulates by

creating common law tort claims just as it does by creating other

forms of preventive relief. See Taylor v. General Motors Corp., No.

87-5879 (11th Cir. June 14, 1989). The court held that the National

Traffic and Motor Vehicle Safety Act impliedly preempted state

tort law. The court came to this conclusion even in the face of a

“savings clause” which stated that “[c]ompliance with any Federal

motor vehicle safety standard issued under this subchapter does

not exempt any person from any liability under common law.” Id.

at 2978 (quoting 15 U.S.C. § 1397(c).

The preemption of state tort law by FIFRA is even stronger

than the preemption found in Taylor. In this case, Congress has

expressly preempted state law. Furthermore, Congress has not

provided a savings clause that would revive any common law remedies

that regulate insecticide labels.

The Court finds, therefore, that a state court jury verdict would

have the effect of “regulating” the content of a warning label. Since

FIFRA expressly preempts state law regulation of pesticide labeling,

plaintiffs’ state law claims fail to the extent that they are based on

defendant's failure to warn.

5. Approval Of Defendant’s Labels

By The EPA

Plaintiffs argue that the defendant has not established that

the EPA approved its labels and that absent such approval, the

preemption defense is not established. Plaintiffs specifically

object to the defendant's introduction of the affidavits of individuals

who do not have personal knowledge of whether or not the

EPA approved defendant's labels.

The Court disagrees with plaintiffs’ implicit assumption that

the preemption defense requires a showing that the EPA actually

approved defendant's labels. At most, such a showing would establish

that the defendant violated federal regulations concerning labeling.

Such a showing would not negate the fact that Congress has expressly

preempted state regulation of labeling through a specific expression

to that effect by statute. The Court finds that various affidavits

submitted by the defendant to show that the EPA approved its

labels are irrelevant to this proceeding and have no bearing on this

Court’s finding of preemption.

6. Necessary And Available Information

The Court disagrees with plaintiffs’ argument that preemption

requires defendant to show that they have provided to the regulatory

agency all the necessary and available information on which to

base a warning. A showing that the EPA approved defendant's

labels based on inadequate information would not negate a

finding that under the law of preemption, the EPA has the

exclusive right to regulate those labels. A showing that the EPA

based its decision on inadequate information would be appropriate

if, for example, the agency approval of defendant’s labels were

offered for its collateral estoppel effect. This Court’s finding of

preemption is not based on collateral estoppel or on the agency's

approval of the defendant's labels.

The Court’s finding of preemption in this case is based on the

fact that Congress expressly preempted state law. If Congress has

taken away the ability of the states to regulate labels and assigned

the regulation of labels to a federal agency, Congress has determined

that such an assignment promotes the general welfare. Whether

that federal regulatory agency carries out its function based on all

available and necessary information is, therefore, irrelevant to a

preemption inquiry. This Court cannot second guess the wisdom

of that decision. A cause of action based on insufficient labeling

would subvert the regulatory scheme for pesticide labeling. Such a

cause of action would permit states to regulate labels in the guise of

an action for damages and violate Congress’s expressed mandate

that state’s should not regulate labels.

C. Plaintiffs’ Remaining Claims: Defectiveness

And Unreasonable Dangerousness Under

Non-Warning Theories

In Florida the elements of a cause of action for strict liability

in tort are 1) the manufacturer's relationship to the product in

question, 2) the defective and unreasonably dangerous condition

of the product, and 3) the existence of the proximate causal connection

between such condition and the user’s injuries or damages. West v.

Caterpillar Tractor Company. Inc., 336 So. 2d 80, 87 (Fla. 1976).

The elements of a cause of action in a negligence products liability

case are 1) the existence of a duty on the part of the defendant to

protect the plaintiff from injury or damage of which plaintiff complains,

2) the failure of the defendant to perform that duty, and 3) injury

ox damage to plaintiff proximately caused by such failure. Blackton

Building Supply Co. v. Garesche, 383 So. 2d 250, 251 (Fla. 5th

DCA 1980). In practice, the causes of action for strict liability in

tort and negligence are similar, and both require proof that the

defendant’s product was defective and unreasonably dangerous.

See Witt v. Norfe. Inc., 725 F.2d 1277-79 (11th Cir. 1984).

Florida law recognizes that the defective and unreasonably

dangerous condition of a product can be established by showing

that a product contained a manufacturing flaw, see Matter of Standard

Jury Instr. (Civil Cases), 435 So. 2d 782, 782-83 n.* (citing Restatement

(Second) of Torts, § 402A, comment k, (1965)), or by showing that

a product contained a design defect. Id. It appears that Florida

courts have not spoken definitively as to whether or not a manufacturer's

failure to warn can constitute a ground for finding a product defective

and unreasonably dangerous. See id., 435 So. 2d at 783 n.°.

This Court assumes without deciding that Florida law would

recognize that a manufacturer’s failure to warn could at least under

certain conditions render a product defective and unreasonably

dangerous. Although this Court is aware that other jurisdictions

have found that a manufacturer’s failure to warn can constitute an

independent ground for finding a product to be defective and

unreasonably dangerous, see 2 American Law of Products Liability

3d, Part 5, Chapter 17, § 17:3, n.9 (T.E. Travers ed. 1987), this

Court's ruling should not be interpreted as any extension of Florida

law on this issue. In light of the Court’s conclusion that any cause

of action based on the defendant's failure to warn is preempted,

the existence of the cause of action in the first instance is immaterial

to the Court’s decision.

The Court finds that plaintiffs’ theory for finding the products

defective and unreasonably dangerous is not based exclusively on

defendant's failure to warn, but on a theory that products containing

Paramite have design defects and/or manufacturing flaws. To the

extent that plaintiffs’ claims are based on the defective and unreasonably

dangerous condition of defendant’s products due to defendant's

failure to warn, plaintiffs’ claims are preempted as a matter of law.

To the extent that plaintiffs’ claims are otherwise based on the

defectiveness or unreasonable dangerousness of defendant’s product

on theories of defective design or manufacturing flaw, the plaintiffs’

claims remain viable.

This Court stresses that this opinion does not address any

issue not raised and briefed by the parties. In particular, the parties

have not addressed the question whether or not the defendant can

assert its warnings as a defense to plaintiffs’ remaining claims, or

whether or not the assertion of a defense of warning is preempted

by FIFRA.

Il. Interlocutory Appeal

The Court finds that this order and partial judgment, although

interlocutory in character, involves a controlling question of law as

to which there is substantial ground for difference of opinion and

* tena SE

upon which an immediate appeal from the order may materially

advance the ultimate termination of the litigation. In particular,

the Court finds that whether or not FIFRA expressly preempts

state products liability law is such a question. The Court so certifies

pursuant to 28 U.S.C. § 1292(b).

The Court reminds the parties that either or both of them

have ten (10) days from the date of this order in which to file an

application under 28 U.S.C. S$ 1292(b) for the Court of Appeals to

review this order and partial judgment. If either of the parties file

such an application with the court of appeals, this Court shall stay

all proceedings in this case pending the disposition of the § 1292

application by court of appeals and any interlocutory appeal which

that court may entertain.

III. Plaintiffs’ Remaining Motions

As to Plaintiffs’ Motion For Leave To File Amended Complaint

And For Leave To Join Koch Refining Company As Defendant,

filed May 24, 1989, the Court finds that the Amended Complaint

attached to the motion contains claims based on defendant's failure

to warn. The Court also notes that the ultimate contents of the

complaint may be affected by a possible interlocutory appeal.

The Court will, therefore, deny the motion to file the amended

complaint attached to the motion. The Court will, however, give

plaintiffs leave to file an amended complaint subsequent to the

court of appeals’ decision on any application for interlocutory appeal

and subsequent to any interlocutory appeal that the court of appeals

may thereupon entertain.

Accordingly, it is

ORDERED and ADJUDGED:

1. That Defendant Zoecon Corporation’s Motion For Partial

Summary Final Judgment, filed April 10, 1989, is granted.

2. That judgment is hereby entered for defendant Zoecon

and against the plaintiffs to the extent plaintiffs’ claims are based

on the defendant Zoecon’s failure to warn.

3. That Plaintiffs’ Motion For Leave To File Amended

Complaint And For Leave To Join Koch Refining Company As

Defendant, filed May 24, 1989, is denied.

4. That plaintiffs’ Motion To Defer Consideration And Ruling

Upon Defendant Zoecon’s Motion For Partial Summary Judgment,

filed May 24, 1989, is denied.

5. That this Court hereby certifies that this order and partial

judgment involves a controlling question of law as to which there is

substantial ground for difference of opinion and that an immediate

appeal under 28 U.S.C. § 1292(b) would materially advance the

ultimate termination of the litigation.

6. That either or both parties may within ten (10) days

from the date of this order file an application under 28 U.S.C. §

1292(b) with the court of appeals to review this order and partial

judgment.

7. That if either plaintiff or defendant Zoecon should file a

§1292(b) application with the court of appeals, all proceedings in

this case shall thereupon be stayed pending the disposition of the §

1292 application and any interlocutory appeal which the court of

appeals may thereupon entertain.

8. That if the court of appeals accepts jurisdiction over the

interlocutory appeal, the pretrial conference set for December 19,

1989, shall automatically be cancelled until further order of the

Court, and the parties shall automatically be relieved from being

required to file a pretrial stipulation until further order of the

Court.

DONE AND ORDERED at Jacksonville, Florida, this 2nd day of

Aug., 1989.

/S/ SUSAN H. BLACK

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

Garry Randolph, Courtroom Deputy Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.