Petition for Writ of Certiorari — Ackles v. Luttrell
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Supreme Court, U.S.
eS B
97.226 AUG 61997
OFFICE OF THE CLERK
No. 97-
IN THE
Supreme Court of the United tates
OCTOBER TERM, 1996
GARY E. ACKLES,
Petitioner,
RICHARD F. LUTTRELL AND PLETCHER FLYING SERVICE,
INC., A CORPORATION, N/K/A D & L FLYING SERVICE,
INC., A CORPORATION; BRADY COEN; AIR CARE, INC.,
A FOREIGN CORPORATION AND ELF ATOCHEM NORTH
AMERICA, INC., A FOREIGN CORPCRATION
Respondents.
On Petition for Writ of Certiorari
to the Supreme Court for the State of Nebraska
PETITION FOR WRIT OF CERTIORARI
MANDY L. STRIGENZ, #20208 J. MARVIN WEEMS, #14428
E. TERRY SIBBERNSEN, #13826 (Counsel of Record)
P.O. Box 24268 P.O. Box 170
Omaha, NE 68124 Ord, NE 68862-0170
(402) 493-7221 (308) 728-3285
Counsel for Petitioner
i
QUESTION PRESENTED
Does the Federal Insecticide, Fungicide and Rodenticide
Act (FIFRA) pre-empt a manufacturer’s state common-
law duty to use due care to inform innocent third parties
of the foreseeable risks involved in the use of dangerous
products it manufactures and to use due care in selecting,
training and supervising its workforce, purchasers and
users?
ii
RULE 14.1(b) STATEMENT
Petitioner Gary E. Ackles and Jeanne Ackles of Ord,
Nebraska are individuals.
The only defendant affected by these proceedings is Elf
Atochem North America, Inc., a corporation with its principal
place of business in Pennsylvania. Elf Atochem North America,
Inc. is the successor to Pennwalt Corporation, the manufacturer
of the pesticide (Penncap-M, methyl parathion) involved in this
litigation.
While other defendants were initially parties to the trial
court petition (7a) the litigation has terminated as to all
defendants except Elf Atochem North America, Inc.
Petitioner has no information concerning Elf Atochem
North America, Inc.’s parent companies and non-wholly owned
subsidiaries, if any.
lil
TABLE OF CONTENTS
QUESTION PRESENTED ............c cece ce cceeeeee i
RULE 14.1(b) STATEMENT ................-0-0-000- i
ce BO ee gy Vv
CE og oe eects es ce ev esees 2
ya y4 kis does veka 2
STATUTORY AND REGULATORY PROVISIONS
Bs eel ae rae 2
Bempeeres CG PPE CASE L... 2... 3
A. bY re 3
B. Facts and Trial Court Proceedings ................ 7
C. The Decision of the Nebraska Supreme Court ....... 9
REASONS FOR GRANTING THE WRIT ............. 11
I. THE DECISION BELOW IS INCONSISTENT WITH
THIS COURT’S DECISIONS IN MORTIER,
SILKWOOD AND MEDTRONIC ............... 1]
Il. THE DECISION BELOW IS INCONSISTENT WITH
THE ADMINSTRATIVE AGENCY’S INTERPRETION
OF FIFRA AND THIS COURT’S DECISIONS IN
RUTHERFORD AND HILLSBOROUGH ......... 14
Il. THE NEBRASKA SUPREME COURT HAS DECIDED
1V
AN IMPORTANT QUESTION OF FEDERAL LAW
THAT HAS NOT BEEN, BUT SHOULD BE,
SETTLED BY THIS COURT .................. 15
Se TE fk Kwa GR Oe pee UR eek eee 22
APPENDIX
Ackles v. Luttrell and Pletcher Flying Service, Coen; Air Care,
Inc., and Elf Atochem North America, Inc., 252 Neb. 273, 561
NW2d 573 (1997)
ee ee er Rn Eee ar ar ene as la
Nebraska Supreme Court Order Denying Rehearing ....... 2a
Eighth Judicial District Court Opinion Granting Summary
ire hes A on Se eae fan 3a
Section 24, FIFRA, 7 U.S.C. 136v .................... 4a
EPA Pesticide Regulation (PR) Notice 96-4 ............. Sa
GR I onion cs ceased eae na ser aescies 6a
Sixth Amended Petition ..................... cc ceeee Ta
I eerie ere EO As eee ie ye a See 8a
Vv
TABLE OF AUTHORITIES
CASES
Ackles v. Luttrell and Pletcher Flying Service, Coen: Air Care.
Inc., and Elf Atochem NorthAmerica, Inc., 252 Neb. 273, 561
SUNT Ue OUR RUPEE oo as na On 4c ess pace 2
Grenier v. Vermont Log Bidgs., Inc., 96 F.3d 559 (1st Cir.1996)
OEE Ee eS a FPF a: 11, 16
Kernats v. Smith Indus. Med. Sys. Inc. 669 N.E.2d 1300 (Ill.
App. C. 1996), 39 ATLA L.Rep. 410 (Dec. 1996) (cert pending)
Lewis v. American Cyanamid Co., 682 A.2d 724 (N.J. Superior
RE Te ioc eee 11, 16
Medtronic Inc. v. Lohr, _ U.S.__, 116 S.Ct. 2240 (1996)
Pe ee en ee ee 2-3, 10-11, 14-16, 20
Rose v. Buffalo Air Service, 170 Neb. 806, 104 N.W.2d 431
be Pe PO PEE aie Se ee an 12
Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ........ 3
Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1983) 11-12, 14
Burke v. Dow Chemical Co., 797 F. Supp. 1128 (E.D. NY, 1992)
STATUTES
Federal Insecticide, Fungicide and Rodenticide Act
pk Tome | | 7
7 U.S.C. § 136(p)(2)(A) 2.06 eee 7
TULS.C. § 13Gq) 0 ccc cece cece ee ne eae 6
7 U.S.C. § 136(q)(1) «0. cee 7
7 U.S.C. § 136(q)1)(A) 2.022 ee 7
7 U.S.C. § 136(q))(D) . «2 ee 4
7 U.S.C. § 136(q)1)(E) .. 2. ee 4
7 U.S.C. § 136(q)(1M(F). 2. ee 5
7 U.S.C. § 136(q)IY(G) ... 22 eee 4-5
TUBA. § TSGEE) on ck ce ese se sects avaenes 4
7 U.S.C. § 136a(a) 2... ee. 3
7 ULS.C. § 136a(c) 2... ee 10
7 U.S.C. § 136a(c)(1X(C) .. ee, 4
PUBL. © SGA) occ ccc sec sv ececcivewnwe 7
7 U.S.C. § 136d(ay(2) .. 0.2 eee 6
Fs OBIE on des deci s cee casecceneureiank even 7
7 U.S.C. § 136j(ay1(E) .. 22. ee, 6-7
7TUS.C. § 136j(ay(2)(C) .. 0. eee 7
7 U.S.C. § 136j(ay(2)(M) ... 22 ee 7
ARS oot Ek a nr a 7
FRE: GOON cerns esa eivdscceessreeieerdewetes 7
Sn
Vil
7ULS.C. § 136V 20. 10, 12-13
7US.C. § 136v(a) oo. eee eee. 2-3
7TU.S.C. § 136v(b) 2. eee. 3, 6, 10
BD UBC, § 1333 occ cc ccc cccvcccucccuce,” 4
1S U.S.C. § 4402(a)(1) 20 4
21 U.S.C. § 360k... 20
28 U.S.C. § 1257(a) 2... 2
REGULATIONS
see A re 10
wade | ns eee a 4
ree Be. 63. ok ie eee. 6
ae Seen) ee oe eee 4
We OO ED ss bes od bed eekc a 4
Pee Oe eC ee 4
WON PEIN oa sooo oikccoeencce en. 5
ride RS se ec rr 6
ee eee ee eee eee es 6
49 Fed. Reg. 37,960 (Sept. 26,1984) ................... 5
53 Fed. Reg. 15,956 (May 4, 1988)..................... 4
OTHER AUTHORITIES
R. David Allnutt, F/FRA Pre-emption of State Common Law
Claims After Cipollone v. Liggett Group, Inc, 68 WASH. L. REV.,
i re er care 7
NO. 97-
IN THE
Supreme Court of the United States
OCTOBER TERM, 1996
GARY E. ACKLES,
Petitioner,
¥.
RICHARD F. LUTTRELL AND PLETCHER FLYING SERVICE,
INC., A CORPORATION, N/K/A D & L FLYING SERVICE,
INC., A CORPORATION; BRADY C@EN; AIR CARE, INC., A
FOREIGN CORPORATION AND ELF ATOCHEM NORTH
AMERICA, INC., A FOREIGN CORPORATION
Respondents.
On Petition for Writ of Certiorari to the Supreme Court
for the State of Nebraska
PETITION FOR WRIT OF CERTIORARI
Petitioner Gary Ackles petitions for a writ of certiorari to
review the judgment of the Nebraska Supreme Court concerning
personal injuries petitioner sustained from exposure to a pesticide.
The Nebraska Supreme Court held that the Federal Insecticide,
Fungicide and Rodenticide Act (FIFRA) pre-empted labeling-based
common law causes of action against manufacturers that abide by
FIFRA regulations. The Nebraska Court held FIFRA expressly pre-
2
empts state “requirements for labeling and packaging in addition to
or different from” requirements under FIFRA, including petitioner’s
state-law claims for failure to warn and labeling based negligence
and strict liability. Because the decision below is inconsistent with
Medtronic, Inc. v. Lohr, 116 SCt. 2240 (1996), other decisions of
this Court and FIFRA’s administrative agency’s interpretation of the
Act, the petition for certiorari shouid be granted and the case
vacated and remanded to the Nebraska Supreme Court.
OPINIONS BELOW
The opinion of the Supreme Court of the State of Nebraska
is reported at 252 Neb. 273, 561 NW2d 573 (1997) and is
reproduced in the Appendix at la, rehearing denied, 2a. The
unreported opinion of the District Court for the Eighth Judicial
District of the State of Nebraska granting summary judgment against
Petitioner is reproduced at 3a.
JURISDICTION
The Supreme Court of the State of Nebraska entered
judgment on April 11, 1997. Petitioner filed a timely Motion for
Rehearing which that Court denied on May 14, 1997. This Court
has jurisdiction under §28 U.S.C. § 1257(a).
STATUTE INVOLVED
Section 24 of FIFRA, 7 U.S.C. § 136v, provides in pertinent
part:
Authority of States
(a) In general - A State may regulate the sale or use of any
federally registered pesticide or device in the State, but only
if and to the extent the regulation does not permit any sale
or use prohibited by this Act.
Wiitiiiiiciccsim fav
3
(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 Act.
STATEMENT OF THE CASE
A. The Structure of FIFRA
While FIFRA was before this Court in Ruckelshaus v.
Monsanto Co., 467 U.S. 986 (1984) and in Wisconsin Public
Intervenor v. Mortier, 501 U.S. 597, 111 SCt. 2476 (1991), this
Court has not yet considered whether and, if so, to what extent its
pre-emption provision, § 136v(b), pre-empts state-law damage
claims under this Court’s pre-emption standards found at Medtronic
v. Lohr, 116 S.Ct. 2240, at pages 2250-51 and other decisions of
this Court. As this Court noted in Mortier, review begins with the
observation:
“Of particular relevance to this case, Section 24(a)
specifies that states may regulate the sale or use of
pesticides so long as the state regulation does not
permit a sale or use prohibited by the Act. Section
136v(a).” 501 U.S. 597, 602. (1991).
FIFRA requires that the federal Environmental Protection
Agency (EPA) make certain regulatory decisions regarding
pesticides, but the Act rarely forbids a state or local government
from supplementing EPA decisions. For example, a pesticide may
generally not be sold or used in the United States without an EPA
registration. 7 U.S.C. § 136a(a). Although states generally may not
permit the sale or use of any pesticide not registered with EPA,
States may regulate or even ban the sale and use of a federally
registered pesticide. 7 U.S.C. § 136v(a). In this way, federal
pesticide regulation establishes minimum standards that may be
exceeded by additional state regulations.
4
Unlike federal statutes governing cigarettes and smokeless
tobacco, FIFRA does not mandate precise wording for pesticide
labels. Cf. 15 U.S.C. §§ 1333, 4402 (a)(1). Nor do EPA’s
regulations dictate the specific language to be used for the majority
of pesticide labels.’ Rather, as a part of an application for a
pesticide registration, the manufacturer submits not only efficacy,
health and environmental data, but also a draft label. 7 U.S.C. §
136a(c)(1)(C); 40 C.F.R. § 152.50(e). In this regard, EPA has
made clear that “(t)he registrant must take responsibility for quality
control of the product’s composition and for adequate labeling
describing the product, its hazards and uses.” 53 Fed. Reg. 15,956
(May 4, 1988).
FIFRA and EPA do establish certain minimum requirements
for pesticide labels. Pesticide labels must contain an EPA
registration number, the registrant’s name and address, the
pesticide’s name, brand or trademark, the net weight or other
measure of content. The use classification of the pesticide, an
ingredient statement, directions for use, a warning or cautionary
statement that is adequate to protect health and the environment,
and, for pesticides that are highly toxic to humans, see supra note
1, specific warnings and a description of appropriate first-aid
treatment. 7 U.S.C. § 136(q){1)(D), (G) & (2)(A)-(D); 40 C_F.R.
§ 156.10(a)(1). Any information required under FIFRA to be on a
pesticide’s label must be prominently and conspicuously placed in
comparison to other labeling information that is not federally
mandated. 7 U.S.C. § 136(q)(1)(E); 40 C.F.R. § 156.10(a)(2).
'EPA requires signal words (“warning” or “caution”) for
four toxicity categories and precise precautionary statements for
three. 40 C.F.R. § 156.10(h). The warnings and precautionary
statements in connection with these categories generally must
appear verbatim on the label.
5
Compliance with FIFRA’s general labeling requirements
does not necessarily satisfy the registrant’s FIFRA (or other)
obligations. To the contrary, a pesticide is misbranded if.
notwithstanding EPA’s registration of the pesticide and acceptance
of the label, it fails to contain whatever additional warnings are
necessary to protect against unreasonable adverse health and
environmental effects. 7 U.S.C. § 136(q)(1)(F)-(G). Indeed, EPA
has recognized that “(f)or liability reasons, companies often
voluntarily provide additional information on the label, particularly
in the area of precautionary statements.” 49 Fed. Reg. 37960,
37971 (Sept. 26, 1984). Neither FIFRA nor EPA regulations
prohibit the inclusion of additional label information or warnings,
provided that the information does not violate any specific statute or
regulator requirement. /d.
In short, EPA has long taken the position that FIFRA does
not pre-empt state tort actions. For example, it has said:
“one factor that would insure that pesticide
manufacturers (and registrants which terms
Petitioner and EPA for these purposes use
interchangeably) sold an efficacious product:
‘pesticide producers are aware that they are
potentially subject to damage suits by the user
community if their products prove ineffective in
actual use.”” Pesticide Regulation (PR) Notice 96-4
Quoting 47 Fed. Reg. 40659, 40661 (col. 2)
(September 15, 1982).). 5a, p. 3.
With respect to directions for use, pesticide labels must
contain directions necessary to effectuate the product’s intended
purpose and adequate to protect against fraud, personal injury, and
unreasonable health and environmental effects. 7 U.S.C. §
136(qX1)(F); 40 C.F.R. § 156.10(3)(1){i). Under EPA regulations,
directions for use must specifically identify the crops to be treated,
6
the dosage rate associated with each site and pest, instructions for
dilution, other application instructions needed to obtain effective
results, and “(a)ny limitations or restrictions on use to prevent
unreasonable adverse effects,” “to non-target organisms.” Jd.
§156.10(1)(2)(iii), (iv), (vi), (vii), (x); 40 C.F.R. §158.202.
Because EPA depends so heavily on manufacturer
submissions, FIFRA imposes continuing obligations on registrants
to submit complete, up-to-date information to EPA. Registrants
have ongoing obligations to provide to EPA all factual information
that they have regarding unreasonable adverse environmental
effects, 7 U.S.C. § 136d(a)(2), and ongoing obligations to ensure
that their labeling complies with FIFRA’s requirements. 7 U.S.C.
§§ 136(q), 136j(a)(1)(E).
Although § 136v(b) pre-empts state “labeling or packaging”
requirements “in addition to or different from” FIFRA requirements,
the Act expressly leaves manufacturers of registered pesticides many
other unrestricted means of conveying information to purchasers and
users. For example, EPA’s regulations identify the following means
of conveying information: “(b)rochures, pamphlets, circulars and
similar material offered to purchasers at the point of sale or by direct
mail; (n)ewspapers, magazines, newsletters and other material in
circulation or availablé to the public; (b)roadcast media such as
radio and television; (t)elephone advertising; and (b)illboards and
posters.” 40 C.F.R. § 152.168(b). Unlike labeling, manufacturers
do not submit such materials to EPA for review and approval as part
of the registration process.”
*The submitted labeling is limited to “the written, printed,
or graphic matter on, or attached to, the pesticide or devise or
any of its containers or wrappers,” or other detached written
matter accompanying the pesticide, such as an instructional
booklet, that serves the same purpose as a label. 7 U.S.C. §
7
If a pesticide label contains false or misleading statements or
lacks directions for use and warnings that are adequate to protect
health and the environment, the pesticide is misbranded. 7 U.S.C.
§§ 136(q)(1), 136j(a)(1)(E), 136j(ay2(C) & (M). In an
administrative action to cancel a pesticide’s registration or to seize
or bar use or sale, EPA registration is not a defense. 7 U.S.C. §§
136(qX(1){A), 136a(f(2). Violations warranting EPA action include
labeling that lacks required information and products that cause
unreasonable environmental effects even when used as directed on
the label. 7 U.S.C. §§ 136) and 136k; see also id. § 1361
(authorizing civil and criminal penalties for FIFRA violations).
FIFRA provides no remedy to compensate individuals who
sustain damages from pesticide use. See R. David Allnutt, 7 RA
Pre-emption of State Common Law Claims After Cipollone _v.
Liggett Group, Inc, 68 WASH. L. REV. 859 at 867 (1993)
B. Facts and Trial Court Proceedings
On August 2, 1991 Petitioner, a rural mail carrier, was
exposed to pesticide® Penncap-M (methyl parathion) manufactured
by Pennwalt Corporation while delivering mail along his usual route.
Respondent Elf Atochem is successor to Pennwalt, the manufacturer
of the pesticide at issue in this case. Upon being exposed Petitioner
experienced nausea, shaking, diarrhea, and vomiting. He was
hospitalized, has continued to experience severe physical ailments
136(p)(1) & (2)(A).
"Footnote 1. For purposes of our discussion of FIFRA,
the term “pesticides” includes herbicides, insecticides, fungicides,
rodenticides and plant regulators (see 2(t) and (u) of FIFRA as
amended 7 U.S.C. 136(t) and (u)).” Ruckelshaus v. Monsanto
Co., 467 U.S. 986 (1984) at page 994.
8
and has been declared disabled from his job as a postal carrier. He
sued the applicators (First Cause of Action) and the mapufacturer
(Second Cause of Action) for negligence and the manufacturer
(Third Cause of Action) for strict liability. 7a. From its label, the
manufacturer acknowledges it knew Penncap-M had a “very high
acute toxicity to humans” and the manufacturer would have some
responsibility to make sure:
1.
Application would be done under the direct
“physically present” supervision of a certified
applicator.
Commercial certified applicators must ensure “all
persons involved in the activities are informed of the
precautionary statements.”
All unprotected persons would be warned, vacated
and kept away from the treated area or where there
is danger of drift during application and for 24 hours
thereafter. Among the statements on the
manufacturer’s label producing the inferences of
danger and knowledge to this effect is the
manufacturer’s statement that “human flaggers are
prohibited.”
Persons in contact with Penncap-M must wear
specified, chemical resistant, protective clothing,
wash the same with soap and water and “contact
physician immediately.” 6a
From its label, the manufacturer also acknowledged it knew:
1.
State and local regulations governed at least the
destruction and burning of heavily contaminated
protective clothing and equipment.
9
2. If Penncap-M-contaminated waste cannot be
disposed of according to label instructions, state
pesticide, environmental control authority or the
nearest Hazardous Waste representative at the
nearest EPA office was to be contacted.
3. Protective information could be obtained from the
Cooperative Extension Service, a state entity. 6a.
The manufacturer’s Answer does not allege in what respect
or respects, if any, Nebraska labeling or packaging requirements are
not equal to or substantially identical to federal FIFRA
requirements. 8a.
On August 15, 1994 the manufacturer filed Motion for
Summary Judgment which the trial court granted January 9, 1995,
(Journal Entry filed January 20, 1995) on the theory FIFRA
expressly pre-empted failure to warn and labeling claims. 3a.
Petitioner appealed the grant of summary judgment in favor
of the manufacturer. On February 28, 1996 the Nebraska Supreme
Court, on its own motion, moved this case from the Court of
Appeals docket to the Supreme Court docket.
C. THE DECISION OF
THE NEBRASKA SUPREME COURT
The Nebraska Supreme Court found Congress had pre-
empted labeling-based common-law causes of action against
chemical manufacturers that abide by the regulations of FIFRA.
Accordingly, the Nebraska Court affirmed summary judgment in
favor of the manufacturer regarding the strict liability cause of action
and, while holding that Petitioner’ failure to warn or labeling-based
cause of action for negligence is pre-empted by FIFRA, reversed the
District Court’s granting of summary judgment against the
manufacturer as it relates to the negligence cause of action and
10
remanded that cause of action with orders that Petitioner be given
an opportunity to amend his petition to allege negligence other than
negligence based on failure to warn or labeling.
The Nebraska Court began its pre-emption analysis by
reference to FIFRA’s “comprehensive scheme for the regulation of
pesticide labeling and packaging. See Wisconsin Public Intervenor
v. Mortier, 501 U.S. 597, 111 S.Ct. 2476, 115 L.Ed.2d 532
(1991).” and the review process for the label which “must address
numerous concerns, including ingredients, directions for use, and
adverse effects of the product. See, s 136a(c); 40 C.F.R. s 152.50
& part 156 (1996).” la.
The Nebraska Court then focused on FIFRA’s pre-emption
provisions, 7 U.S.C. § 136v(b). (la). After noting “The U.S.
Supreme Court has not had the occasion to address the FIFRA pre-
emption issue concerning common-law causes of action against an
insecticide manufacturer,” the Nebraska Court went on to compare
FIFRA’s language with that found in Cipollone v. Liggett Group
Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) and,
while acknowledging the language was “not identical”, found
“(E)very federal court of appeals that has addressed the issue before
us has, in the wake of the Cipollone decision, held that both
failure-to-warn and labeling-based claims brought under
common-law causes of action against manufacturers of pesticides
are pre-empted by s 136v.” (1a)
The Nebraska Court then stated this court “has revisited the
field of pre-emption analysis with its decision in Medtronic Inc. v.
Lohr, which focused on the term "requirement" in concluding that
the common-law actions against the manufacturer were not pre-
empted” but in the language of Medtronic: “"Requirement" appears
to presume that the State is imposing a specific duty upon the
manufacturer, and although we have on prior occasions concluded
that a statute pre-empting certain state "requirements" could also
1]
pre-empt common-law damages claims, see Cipollone, 505 U.S., at
521-522, 112 S.Ct., at 2620 (opinion of STEVENS, J.), that statute
did not sweep nearly as broadly as Medtronic would have us believe
that this statute does. 116 S.Ct. at 2251.” la.
Relying on the interpretation placed on FIFRA after
Medtronic by Lewis v. American Cyanamid Co., 294 N.J.Super. 53,
682 A.2d 724 (1996) and Grenier v. Vermont Log Bldgs., Inc., 96
F.3d 559 (ist Cir.1996), the Nebraska Court disagreed with
Petitioner’s analysis of Medtronic, and, instead, saw the
manufacturer “between the proverbial rock and hard place in that it
would be required to use the label approved by the EPA, yet pay
damages because a jury determined that such label was not
sufficient.” la.
REASONS FOR GRANTING THE WRIT
I. THE DECISION BELOW IS INCONSISTENT WITH
THIS COURT’S DECISIONS IN, MORTIER,
SILKWOOD AND MEDTRONIC
The Nebraska decision is inconsistent with this Court’s
decisions in Wisconsin Public Intervenor v. Mortier, 501 U.S. 597
(1991), Silkwood v. Kerr-McGee, 464 U.S. 238 (1984) and
Medtronic v. Lohr, U.S. _, 116 SCt. 2240 (1996). In
Mortier, this Court made an extensive review of FIFRA’s legislative
history (see 501 U.S. 597, 609-10 and 613-14), found it to be
“complex and ambiguous” (501 U.S. 597, 612) and held: “FIFRA
does not pre-empt the town's ordinance either explicitly or implicitly
or by virtue of an actual conflict.” 501 U.S. 597, 606.
Mortier involved a specific local ordinance that required “the
permittee to post placards giving notice of the pesticide use and of
any label information prescribing a safe reentry time” (501 U.S. 597,
603), a requirement functionally equivalent to the general common
12
law duty the manufacturer owed petitioner. A manufacturer of a
dangerous substance has a general common-law duty in Nebraska
of “taking suitable precautions to avoid injury.” Rose v. Buffalo Air
Service, 170 Neb. 806, 104 NW2d 431 (1960). In holding FIFRA
“is wholly inadequate to convey an express pre-emptive intent on its
own” this Court said:
“Section 136(v) plainly authorizes the ‘states’ to
regulate pesticides and just as plainly is silent with
reference to local governments. Mere silence, in this
context, cannot suffice to establish a ‘clear and
manifest purpose’ to pre-empt local authority.”
Mortier, supra, 501 U.S. 597, 607.
Finally, Mortier is significant because it means this court has already
specifically held field pre-emption cannot be inferred from FIFRA.
(501 U.S. 597, 612).
Silkwood held a state common law award of punitive
damages (ten million dollars) in addition to $500,000 compensatory
damages was not pre-empted by the Federal Atomic Energy Act.
464 U.S. 238, 245. After pointing out there was no indication
Congress even seriously considered precluding the use of such
remedies when it enacted or amended the Act, the Silkwood court
went on to say: .
“This silence takes on added significance in light of
Congress’ failure to provide any federal remedy for
persons injured by such conduct. It is difficult to
believe that Congress would, without comment,
remove all means of judicial recourse for those
injured by illegal conduct.” 464 U.S. 238, 251 and
255-266.
BENE Cale RE RL ROD BBO P OE es Soe oe
i aaa
13
The Nebraska Court’s “rock and hard place” analysis
conflicts with the analysis of Section 136(v) of FIFRA found in
Mortier where a pesticide applicator raised the:
“specter of gypsy moth hoards safely navigating through
thousands of contradictory and_ineffective municipal
regulations,” (this Court said) “Congress is free to find that
local regulation does wreck such havoc and enact legislation
with the purpose of preventing it. We are satisfied.
however, that Congress has not done so yet.” Mortier,
supra, 501 U.S. 597, 615 (Emphasis supplied).
The key language before this Court in Medtronic:
(““no such state or political subdivision of a State may
establish or continue in effect with respect to a device
intended for human use any requirement (1) which is
different from, or in addition to, any requirement applicable
under [the MDA] to the device’” x x x 116 S.Ct. 2240 at
page 2243)
is identical to that found in FIFRA (“such states shall not impose or
continue in effect any requirements for labeling or packaging in
addition to or different from those required under the Act.”) 4a.
Due to the similarities between the MDA and the FIFRA,
Petitioner asks the Court to hold this case until it decides Kernats v.
Smith Indus, Med. Sys. Inc. 669 N.E.2d 1300 (Ill. App. C. 1996),
(cert pending as No. 96-1405) unless, of course, the Court grants
the petition in the instant case.
At this time, however, the Nebraska decision conflicts with
how this Court analyzes a pre-emption case (Medtronic v. Lohr, a
U.S. __, 116 S.Ct. 2240 at pp. 2250-51) and the majority decision
in Medtronic that “pre-emption occur only where a particular state
14
irement thr interfere with a specific federal interest.”
116 S.Ct. 2240 at page 2257. (Emphasis supplied).
As this Court in Medtronic has said:
“such additional elements of the state-law cause of action
would make the state requirements narrower, not broader,
than the federal requirement. While such a narrower
requirement might be "different from" the federal rules in a
literal sense, such a difference would surely provide a
strange reason for finding pre-emption of a state rule insofar
as it duplicates the federal rule. The presence of a damages
remedy does not amount to the additional or different
"requirement" that is necessary under the statute; rather, it
merely provides another reason for manufacturers to comply
with identical existing "requirements" under federal law.”
116 S.Ct. 2240 at 2255.
Accordingly, under this Court’s decisions in Mortier, Silkwood and
Medtronic this Court should grant the petition for writ of certiorari.
Il. THE DECISION BELOW IS INCONSISTENT WITH |
THE ADMINISTRATIVE AGENCY’S |
INTERPRETATION OF FIFRA AND THIS COURT’S
DECISIONS IN RUTHERFORD AND HILLSBOROUGH
Next, the Nebraska Supreme Court’s decision in Ackles
conflicts with the administrative agency’s (EPA) interpretation of
the Act. (Pesticide Regulation (PR) Notice 96-4 dated June 3,
1996). 5a. That is, at least since 1982, the EPA has made its
position that “pesticide producers are aware they are potentially
subject to damage suits” of public record. Sa, p. 3.
15
In such circumstances, this Court has instructed that “the
construction of a statute by those charged with its administration is
entitled to substantial deference.” United States v. Rutherford, 442
U.S. 544, 553 (1979). Moreover, this Court has deemed an
agency’s interpretation of its own regulations “dispositive” on the
issue of pre-emption of state law. Hillsborough County v.
Automated Medical Lab., Inc., 471 U.S. 707, 714 (1985).*
EPA has consistently adhered to its view that FIFRA does
not pre-empt product liability. As this Court noted in Mortier,
supra, the EPA discerns “no actual conflict between FIFRA and
local regulation generally.” 501 U.S. 597, 614. Under these
circumstances, the Court should grant the petition for writ of
certiorari.
lil. THE NEBRASKA SUPREME COURT HAS DECIDED
AN IMPORTANT QUESTION OF FEDERAL LAW
THAT HAS NOT BEEN, BUT SHOULD BE, SETTLED
BY THIS COURT.
The Nebraska Supreme Court concluded:
“Through its enactment of FIFRA, Congress has
pre-empted labeling-based common-law causes of
action against chemical manufacturers that abide by
the regulations of FIFRA. We therefore affirm the
*As Justice Breyer pointed out in his concurrence in
Medtronic, supra, an administrative agency’s: “responsibility
means informed agency involvement and, therefore, special
understanding of the likely impact of both state and federal
requirements, as well as an understanding of whether (or the
extent to which) state requirements may interfere with federal
objectives.” 116 S.Ct. 2240, 2260.
16
summary judgment in favor of Pennwalt regarding
Ackles' strict liability cause of action. Because
summary judgment was inappropriately entered
against Ackles' negligence action, we remand the
cause with directions.” App. 1a.
However, in remanding to replead, the Nebraska Court
noted “that, in accordance with the foregoing analysis, a
failure-to-warn or labeling-based cause of action is pre-empted by
FIFRA.” 1a.
AN INNOCENT BYPASSER
SHOULD NOT BE PRE-EMPTED
Petitioner was not an employee, purchaser, voluntary user or
voluntary consumer of this pesticide. He was simply an innocent
bypasser who did not receive the warning to which he was entitled
under Nebraska common law. The two post-Medtronic cases upon
which the Nebraska Supreme Court relied (Lewis and Grenier,
supra) did not involve an innocent bypasser. la.
At least two courts, one state and one federal, (New Jersey
and New York) have held FIFRA pre-empted common-law claims
are not pre-empted when innocent third parties are involved. Macrie
v. SDS Biotech Corp., 267 NJ Super 34, 630 A2d 805 (1993).
(“Mortier, Allenby, Jorling, and Burke convince us that, consistently
with FIFRA, State law may require a pesticide manufacturer like
defendant to take reasonable steps, either through instructions to its
customers or directly through its own efforts, to assure that persons,
like plaintiffs, who handle produce bought directly from farmers
who have used Bravo 500, will be warned of its dangers, at least by
receiving defendant's brochures in the form prescribed by the
E.P.A.” Supra at 48-9, 630 A2d 805 at 813, Weinstein, J.), and
Burke v. Dow Chemical Co., 797 F. Supp. 1128 (E.D. NY, 1992),
(FIFRA based motion for summary judgment denied in products
action filed against a manufacturer of active ingredient in household
17
insecticide and manufacturer of final product alleging that children
became brain damaged through their mother’s exposure to
insecticide while pregnant).
In addition to Mortier, supra, at least one other court has
concluded state-required point-of-warning signs are not pre-empted
by FIFRA’s labeling and warning provisions. Chemical Specialties
Manufacturers Association Inc. v. Allenby, 958 F2d 941 (CA 9
1992). After describing the split in authority, the Allenby court
went on to point out:
“The great split in authority is important to illustrate
that even when the consequences of state action
clearly pressure companies to change their FIFRA
labels, there is no consensus on whether the state
action is pre-empted.”
“(A) national safety standard would ease the burden
of compliance for chemical product manufacturers (x
x x but) would take police powers away from the
states who best know how to serve the interests of
their citizenry.” 958 F2d 941 at 948. (1992)
Suffice it to say, the state of the law has left us with a
procedural muddle which only this Court can resolve.
Moreover, an innocent bypasser should be entitled to the
protection of a manufacturer’s general duty to inform those who
could foreseeably be injured by potentially dangerous items of the
risks involved in their use regardless of whether he lives in
Wisconsin, New York, California, New Jersey or Nebraska. Unless
this court resolves that conflict, no manufacturer will know what its
duty is and no citizen will know what his protection is. As this
Court has pointed out, “inability to provide redress x x x vitiates the
ordinary arguments for pre-emption” and “creates disrespect for the
18
law.” Linn v. Plant Guard Workers, 383 U.S. 53, 63, 67.
At the least, an innocent bypasser should have the protection
of this Court’s presumption against pre-emption for the reasons
summarized by the Allenby court as follows:
“"(F ]ederal regulation of a field of commerce should
not be deemed pre-emptive of state regulatory
power in the absence of persuasive reasons--either
that the nature of the regulated subject matter
permits no other conciusion, or that the Congress
has unmistakably so ordained." Florida Lime &
Avocado Growers v. Paul, 373 U.S. 132, 142, 83
S.Ct. 1210, 1217, 10 L_Ed.2d 248 (1963). We have
noted two practical reasons for this presumption.
First, Congress has the power to make pre-emption
clear in the first instance. Second, if the court
erroneously finds pre-emption, the State can do
nothing about it, while if the court errs in the other
direction, Congress can correct the problem.
Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483,
488 (9th Cir.1984), cert. denied, 471 U.S. 1140, 105
S.Ct. 2686, 86 L.Ed.2d 703 (1985). [3] In
particular, "regulation of health and safety matters is
primarily, and historically, a matter of local
concer." ounty v. Automated Med.
Labs, Inc., 471 U.S. 707, 719, 105 S.Ct. 2371,
2378, 85 L.Ed.2d 714 (1985). Consequently, courts
houl ially unlikely to find pre-emption of
state laws in these areas. See id.” 958 F2d 941 at
943. (1992). (Emphasis supplied).
Just as this court has recognized the chemical company’s
property nights “are created and their dimensions are defined by
existing rules or understandings that stem from an independent
An © Ceuta
19
source such as state law” (Ruckelshaus v. Monsanto Co. 476 US
986 at 1001 (1984)), Ruckelshaus also recognized Congressional
pre-emption:
““by ipse dixit, may not transform private property
into public property without compensation . . . . This
is the very kind of thing that the Taking Clause of
the Fifth Amendment was meant to prevent." Webb's
Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S., at
164.” 467 U.S. 986, 1012
For at least the last 112 years, this court has recognized:
“If the (police power) laws enacted by a state be
within the legitimate sphere of legislative power, and
their enforcement be attended with the observance
of those general rules which our system of
jurisprudence prescribes for the security of private
rights, the harshness, injustice, and oppressive
character of such laws will not invalidate them as
affecting life, liberty, or property without due
process of law.” Missouri Pac. R. Co. v. Humes,
115 U.S. 512, 520 (1885).
This Court clearly recognized state law a year ago when it held:
“The legal duty that is the predicate for the Lohrs'
negligent manufacturing claim is the general duty of
every manufacturer to use due care to avoid
foreseeable dangers in its products. Similarly, the
predicate for the failure to warn claim is the general
duty to inform users and purchasers of potentially
dangerous items of the risks involved in their use.
These general obligations are no more a threat to
federal requirements than would be a state-law duty
i
‘
20
to comply with local fire prevention regulations and
zoning codes, or to use due care in the training and
supervision of a workforce. These _ state
requirements therefore escape pre-emption, not
because the source of the duty is a judge-made
common-law rule, but rather because their generality
leaves them outside the category of requirements
that s 360k envisioned to be "with respect to"
specific devices such as pacemakers. As a result,
none of the Lohrs' claims based on allegedly
defective manufacturing or labeling are pre- empted
by the MDA.” Medtronic Inc. v. Lohr, 116 SCt.
2240 decided 06/26/96 at page 2258, at Section V.
As this Court recognized last month, ours is a system of
“dual sovereignty” i heriff/Coroner, Ravalli County,
Montana v. United States, No. 95-1478, decided June 27, 1997, p.
10) and a failure to reverse the Nebraska Supreme Court will
produce another unfunded mandate which Printz specifically
disapproved. Supra, p. 14.
Unless reversed, the Nebraska decision in Ackles will, for all
practical purposes, produce “an anomaly in the law, a (virtual)
Constitutional right to ignore neutral laws of generally applicability”,
an anomaly this Court struck down last month in City of Boerne v.
Flores, Archbishop of San Antonio, et al., decided June 25, 1997, p.
4. The Nebraska Court’s interpretation of FIFRA would
unconstitutionally take the Petitioner’s family property by denying
an innocent bypasser the opportunity to earn a living for his family
and at the same time would unconstitutionally create a property
right in the chemical company by unconstitutionally furnishing that
chemical company immunity from accountability for foreseeable
injuries its product caused. Like the act Congress struck down in
the Flores case, the Nebraska Supreme Court’s construction of
FIFRA: “reflects a lack of proportionality or congruence between
csi oieaaa
21
the means adopted and the legitimate end to be achieved.” Supra,
p. 14.
As such:
“This is a considerable congressional intrusion into
the States' traditional prerogatives and general
authority to regulate for the health and welfare of
their citizens.” Flores, supra, p. 15.
As this court has said:
“(E)ven if a pre-existing state-law remedy ‘is a
species of “property” protected by the Due Process
Clause . . ., it would remain true that the State's
interest in fashioning its own rules of tort law is
paramount to any discernible federal interest, except
perhaps an interest in protecting the individual
citizen from state action that is wholly arbitrary or
irrational.”” Pruneyard Shopping Center v. Robins,
447 U.S. 74, 92 (1980).
NENG Cams tt es kn ead mSern
Finally, the construction given FIFRA by the Nebraska
Supreme Court as applied to an innocent bypasser fails to meet the
due process standard this court required in Duke Power Co. v.
Carolina Environmental Study Group, 438 US 59 (1978). (The
: Price-Anderson Act provides a reasonably just substitute for the
' common-law or state tort law remedies it replaces). FIFRA offers
j no such substitute.
ett pg IE I A FAD 2 dS
22
CONCLUSION
This Court should grant the petition for writ of certiorari.
RESPECTFULLY SUBMITTED this 28th day of July,
1997.
MANDY L. STRIGENZ, #20208 J. MARVIN WEEMS, #14428
E. TERRY SIBBERNSEN, #13826 (Counsel of Record)
8805 Indian Hills Drive, #325 218 South 16th Street
P.O. Box 24268 P.O. Box 170
Omaha, NE 68124 Ord, NE 68862-0170
(402) 493-7221 (308) 728-3285
Counsel for Petitioner
ve er a a e Lites.
GARY E. ACKLES, APPELLANT,
Vv.
RICHARD F. LUTTRELL ET AL., APPELLEES.
--- N.W.2d ----
252 Neb. 273
Filed April 11, 1997. No. S-95-257.
Motions for New Trial: Appeal and Error. A motion for
new trial is addressed to the discretion of the trial court,
whose decision will be upheld on appeal in the absence of an
abuse of that discretion.
Summary Judgment. Summary judgment is to be granted
when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.
Judgments: Appeal and Error. When reviewing a
question of law, an appellate court reaches a conclusion
independent of the lower court's ruling.
Federal Acts: Claims. Failure-to-warn and labeling-based
claims brought under common-law causes of action against
manufacturers of pesticides are preempted by the Federal
Insecticide, Fungicide, and Rodenticide Act.
Negligence: Proof. In order to succeed in an action based
on negligence, a plaintiff must establish the defendant's duty
not to injure the plaintiff, a breach of that duty, proximate
causation, and damages.
Negligence: Pleadings. A bare allegation of proximate
cause and damages without providing information as to what
negligence occurred fails to set forth a negligence cause of
action.
Summary Judgment. A motion for summary judgment is
not intended to be used as a substitute for a demurrer or
motion for judgment on the pleadings. [274]
‘la, page 1
Appeal from the District Court for Valley County: RONALD
D. OLBERDING, Judge.
Mandy L. Strigenz and E. Terry Sibbernsen, of E. Terry
Sibbernsen, P.C., and J. Marvin Weems, P.C., for appellant.
Brian D. Nolan, of Nolan, Roach & Lautenbaugh, and
Daniel J. Connolly and Mark J. Carpenter, of Faegre & Benson,
P.L.LP., for appellee Elf Atochem North America, Inc.
WHITE, C.J.., CAPORALE, WRIGHT, CONNOLLY, AND
GERRARD, JJ., AND COADY, D.J.
CONNOLLY, J.
The appellant, Gary E. Ackles, brought this negligence and
strict liability ac. »n against, among others, the appellee Pennwalt
Corporation, now known as Elif Atochem North America, Inc.
(Pennwalt), seeking damages for personal injuries sustained as the
result of being exposed to an insecticide manufactured by Pennwalt.
The district court granted Pennwalt's motion for summary judgment,
finding that the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA) preempted Ackles’ failure-to-warn and labeling based
claims. We affirm in part, because we conclude that FIFRA
preempts labeling-based claims. However, we remand Ackles’
negligence cause of action because it did not effectively state a cause
of action, thereby making a summary judgment disposition
inappropriate.
BACKGROUND
On August 2, 1991, Ackles, a U.S. mail carrier, was
delivering mail when he became exposed to Penncap-M which was
being sprayed on an adjacent comfield by a crop duster. Penncap-M
is an insecticide manufactured by Pennwalt. Upon being exposed to
the insecticide, Ackles experienced nausea, shaking, diarrhea, and
vomiting. Since the exposure, Ackles has experienced severe
la, page 2
physical ailments and has been declared disabled from his job asa
postal carrier.
Penncap-M, like all insecticides, is subject to regulation and
approval by the federal Environmental Protection Agency (EPA).
See 7 U.S.C. s 136a(a) (1988). Pursuant to FIFRA, [275] 7 U.S.C.
S 136 et seq. (1988 & Supp. II 1990), the EPA must review and
approve proposed labeling prior to any sale or distribution of the
product. In the instant case, it is undisputed that the EPA reviewed
and approved the Penncap-M labeling prior to Ackles’ injury.
Ackles filed suit against the crop duster and Pennwalt. In his
sixth amended petition, Ackles brought two causes of action against
Pennwalt: one sounding in negligence, with the second based on
strict liability in tort. The crux of these causes of action was that
Pennwalt failed to warn or convey appropriate information
regarding Penncap-M to those persons applying the
insecticide. Ackles contended in both causes of action that this
failure was the proximate cause of his personal injuries.
In its order, the district court overruled the crop duster's
motion for summary judgment, but granted Pennwalt's motion for
summary judgment, holding that
[Ackles'] failure to warn and labeling claims, found
in ... Causes of Action 2 and 3 of the 6th Amended
Petition, present a state law challenge to the
EPA-approved Penncap-M label, which challenge is
expressly preempted by s 136v(b) of the Federal
Insecticide Fungicide and Rodenticide Act, 7
U.S.Code s 136 et seq.
In a later order, the district court overruled Ackles' motion
for new trial. Ackles appeals.
ASSIGNMENTS OF ERROR
Ackles contends the district court erred in overruling his
motion for a new trial because (1) it was error to find that his
failure-to-warn claim, in the second cause of action, was expressly
preempted by FIFRA and (2) it was error to find that his labeling
la, page 3
claim, in the third cause of action, was also preempted by FIFRA.
STANDARD OF REVIEW
A motion for new trial is addressed to the discretion of the
trial court, whose decision will be upheld on appeal in the absence
of an abuse of that discretion. Menkens v. Finley, 251 Neb. 84, 555
N.W.2d 47 (1996); Farmers & Merchants Bank v. Grams, 250 Neb.
191, 548 N.W.2d 764 (1996). [276]
Summary judgment is to be granted when there is no genuine
issue of material
fact and the moving party is entitled to judgment as a matter of law.
Boyd v. Chakraborty, 250 Neb. 575, 550 N.W.2d 44 (1996);
Bogardi v. Bogardi, 249 Neb. 154, 542 N.W.2d 417 (1996).
When reviewing a question of law, an appellate court
reaches a conclusion independent of the lower court's ruling. Law
Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457, 558 N.W.2d
303 (1997); Olson v. SID No. 177,251 Neb. 380, 557 N.W.2d 651
(1997).
ANALYSIS
This appeal presents the issue of whether failure-to-warn and
labeling-based claims brought against the manufacturer of a chemical
that is regulated by FIFRA are preempted.
We begin with Ackles’ assigned error concerning the
granting of summary judgment in favor of Pennwalt against Ackles'
strict liability cause of action. In this cause of action, Ackles
contends Pennwalt is strictly liable for placing a defective product,
namely Penncap-M, into the stream of commerce. According to the
sixth amended petition, the defects referred to are the
following, and Pennwalt was negligent:
a. In failing to adequately and properly warn users of,
and other persons who will forseeably [sic] be endangered
by, the product known as Penncap-M of the toxic nature of
the product;
la, page 4
ait ne Se ee
b. In failing to provide written instructions to aerial
applicators of the product known as Penncap-M as to the
manner in which the product should be applied; and,
C. In placing on the market for use a product which is
toxic and creates an unreasonably dangerous condition when
human beings such as the Plaintiff become exposed to the
product.
preempted the claim. Ackles appeals that ruling, contending FIFRA
does not preempt his labeling claim put forth in the third cause of
Ackles' sole assigned error concerning his strict liability action
relates only to the district court's entering summary judgment
against his labeling claim in the strict liability cause of action, we
offer no opinion as to whether subparagraph c is itself preempted by
FIFRA, insofar as that issue was not preserved for appeal. See
Daehnke v. Nebraska Dept. of Soc. Servs., 251 Neb. 298, 557
N.W.2d 17 (1996) (errors not assigned will not be considered by
appellate court). Therefore, our concern in this appeal is whether
FIFRA preempts labeling-based strict liability claims against a
manufacturer of an insecticide, such as those Claims set forth in
subparagraphs a and b.
Originally enacted in 1947, FIFRA establishes a
comprehensive scheme for the regulation of pesticide labeling and
packaging. See Wisconsin Public Intervenor v. Mortier, 501 U.S.
597, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991). The administrative
agency in charge of setting appropriate regulations is the EPA.
Before a pesticide may be sold, it must be registered and its labeling
approved by the EPA. s 136a(a). The review process requires that
an applicant submit a Proposed label to the EPA for approval. This
label must address humerous concerns, including ingredients,
la, page 5
directions for use, and adverse effects of the product. See, s
136a(c); 40 C.F.R. s 152.50 & part 156 (1996). In addition to the
written material on the actual container, the term "label" also
includes written, printed, or graphic material accompanying the
container, to which reference is made. s 136(p). Once the label is
approved, FIFRA makes it unlawful for any person to alter it
without the prior approval of the EPA. See s 136j(a)(2)(A).
FIFRA specifically sets forth the authority the states shall
have concerning the labeling of pesticides. Section 136v provides,
in part:
(a) In general
A State may regulate the sale or use of any federally
registered pesticide or device in the State, but only if and to
the extent the regulation does not permit any sale or use
prohibited by [FIFRA].
(b) Uniformity [278]
Such State shall not impose or continue in effect any
requirements for labeling or packaging in addition to or
different from those required under [FIFRA].
It is the preemption effect of subsection (b) that is at issue in
this case. We are asked to determine whether this provision
preempts a common-law cause of action brought against a
manufacturer based on inadequate labeling if the manufacturer
complied with the requirements of FIFRA.
The U.S. Supreme Court has not had the occasion to address
the FIFRA preemption issue concerning common-law causes of
action against an insecticide manufacturer. However, in 1992 the
Court decided Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112
S.Ct. 2608, 120 L.Ed.2d 407 (1992), which involved a suit brought
against three cigarette manufacturers by the husband of a woman
who died of lung cancer after having smoked for 40 years. The
action was based on the common-law claims of design defects,
failure to warn, express warranty, fraudulent misrepresentation, and
conspiracy to defraud. The defendant manufacturers argued that the
Public Health Cigarette Smoking Act of 1969(Act) preempted the
la, page 6
common-law causes of action. The preemption clause of the Act
provides that "[n]o requirement or prohibition based on smoking
and health shall be imposed under State law with respect to the
advertising or promotion of any cigarettes the packages of which are
labeled in conformity with the provisions of this [Act]." 15 U.S.C.
s 1334(b) (1994),
A plurality of the Court held that "[t]he phrase ‘[n]Jo
requirement or prohibition’ sweeps broadly and suggests no
distinction between positive enactments and common law; to the
contrary, those words easily encompass obligations that take the
form of common-law rules." Cipollone, 505 U.S. at 521. See, also,
id. at 548 (Scalia, J., concurring in the judgment in part and
dissenting in part, joined by Thomas, J.) (" 'the language of the
[1969] Act plainly reaches beyond [positive] enactments' "). The
Court went on to note, however, that the preemption clause does
not preempt all common law, but, rather, only those actions
predicated on a theory that necessarily interferes with the Act. Thus,
it was determined that the plaintiffs failure-to-warn claim was
preempted because it was specifically at odds with the labeling [279]
requirement set forth in the Act, with which the manufacturer
complied.
While not identical, the language employed in the
preemption clause of FIFRA, s 136v(b) ("shall not impose or
continue in effect any requirements for labeling" (emphasis
supplied)), closely parallels that used in 15 U.S.C. s 1334(b) of the
Act ("[n]o requirement or prohibition based on smoking and health
shall be imposed under State law" (emphasis supplied)). Cognizant
of this similarity, every federal court of appeals that has addressed
the issue before us has, in the wake of the Cipollone decision, held
that both failure-to-warn and labeling-based claims brought under
common-law causes of action against manufacturers of pesticides
are preempted by s 136v. See, Welchert v. American Cyanamid,
Inc., 59 F.3d 69 (8th Cir. 1995); Taylor Ag Industries vy. Pure-Gro,
54 F.3d 555 (9th Cir.1995); Lowe v. Sporicidin Intern., 47 F.3d
124 (4th Cir.1995); Bice v. Leslie's Poolmart, Inc., 39 F.3d 887
la, page 7
(8th Cir.1994); MacDonald v. Monsanto Co., 27 F.3d 1021 (Sth
Cir.1994); Worm v. American Cyanamid Co., 5 F.3d 744 (4th
Cir. 1993); King v. EI. Dupont De Nemours and Co., 996 F.2d 1346
(1st Cir.1993), cert. dismissed 510 U.S. 985, 114 S.Ct. 490, 126
L.Ed.2d 440; Shaw v. Dow Brands, Inc., 994 F.2d 364 (7th
Cir.1993); Papas v. Upjohn Co., 985 F.2d 516 (11th Cir.1993),
cert. denied 510 U.S. 913, 114 S.Ct. 300, 126 L.Ed.2d 248;
Arkansas-Platte & Gulf v. Van Waters & Rogers, 981 F.2d 1177
(10th Cir.1993), cert. denied 510 U.S. 813, 114 S.Ct. 60, 126
L.Ed.2d 30.
In addition, our research reveals that numerous state
appellate courts in other jurisdictions have also held that FIFRA
preempts labeling-based common-law causes of action. See, e.g.,
Schuver v. E.I. Du Pont de Nemours & Co., 546 N.W.2d 610 (Iowa
1996); Hottinger v. Trugreen Corp., 665 N.E.2d 593
(Ind. App.1996); Hochberg v. Zoecon Corp., 421 Mass. 456, 657
N.E.2d 1263 (1995); Quest Chemical Corp. v. Elam, 898 S.W.2d
819 (Tex.1995); All-Pure Chemical Co. v. White, 127 Wash.2d 1,
896 P.2d 697 (1995); Jenkins v. Amchem Products, Inc., 256 Kan.
602, 886 P.2d 869 (1994).
Subsequent to the decisions of these courts, the U.S.
Supreme Court has revisited the field of preemption analysis [280]
with its decision in Medtronic, Inc. v. Lohr, U.S., --- U.S. ----, 116
S.Ct. 2240, 135 L.Ed.2d 700 (1996). The Court, in Medtronic, Inc.,
was asked to determine whether the preemption clause of the
Medical Device Amendments of 1976(MDA) to the Federal Food,
Drug, and Cosmetic Act precluded common-law damage claims
against the manufacturer of a cardiac pacemaker which was
regulated by the MDA. The preemption language at issue provided:
(a) General rule
Except as provided in subsection (b) of this section,
no State or political subdivision of a State may establish or
continue in effect with respect to a device intended for
human use any requirement--
(1) which is different from, or in addition to, any
la, page 8
‘i
requirement under this chapter to the device.
21 U.S.C. s 360k (1994).
Aware of its previous decision in Cipollone, the Medtronic.
Inc. Court focused on the term "requirement" in concluding that the
common-law actions against the manufacturer were not preempted.
A plurality of the Court reasoned that
if Congress intended to preclude all common-law causes of
action, it chose a singularly odd word with which to do it
The statute would have achieved an identical result, for
instance, if it had precluded any "remedy" under state law
relating to medical devices. "Requirement" appears to
presume that the State is imposing a specific duty upon the
manufacturer, and although we have on prior occasions
concluded that a statute pre-empting certain state
| "requirements" could also pre-empt common-law damages
claims, see Cipollone, 505 US., at 521-522, 112 S.Ct., at
2620 (opinion of STEVENS. J .), that statute did not sweep
nearly as broadly as Medtronic would have us believe that
this statute does.
116 S. Ct. at 2251.
According to the plurality, the Act at issue in Cipollone
prohibited state requirements that were “based on smoking and
health." 15 U.S.C. s 1334(b). The plurality was quick to point out
that those common-law claims not based on smoking and health
were not preempted. Concerning the MDA in Medtronic, [281]
Inc., however, it was determined that an examination of the entire
act makes it apparent that the term "requirements," as used
throughout, "is linked with language suggesting that its focus is
device-specific enactments of positive law by legislative or
administrative bodies, not the application of general rules of
common law by judges and juries." --- U.S. at ----, 116 S.Ct. at
2252. However, five Justices of the Court reiterated the sentiments
put forth in Cipollone that state common-law claims can be equated
with state requirements. See Medtronic, Inc., supra (Breyer, J.,
concurring in part and concurring in the judgment) and (O'Connor,
neat
a ns
la, page 9
J., concurring in part and dissenting in part, joined by Rehnquist,
C.J., and Scalia and Thomas, JJ.).
Thus, while at first blush Medtronic, Inc. appears to retreat
from the preemption analysis put forth in Cipollone, it was the
separate and distinct statutes that were involved in each case that
were the determining factor. We therefore must determine whether
the preemption language used in FIFRA preempts labeling-based
common-law actions, as was the case in Cipollone, or whether
FIFRA is more analogous to the statutory scheme of the MDA,
which was at issue in Medtronic, Inc.
Two courts have recently examined FIFRA's preemption
language in the aftermath of Medtronic, Inc. and have concluded
that common-law actions for failure to warn and labeling-based
claims are preempted. In Lewis v. American Cyanamid Co., 294
N.J.Super. 53, 682 A.2d 724 (1996), the court ruled that a
failure-to-warn claim against a manufacturer was preempted by
FIFRA. Recognizing the U.S. Supreme Court's apparent retreat
from preemption in Medtronic, Inc., the court concluded that the
preemption language employed in FIFRA was more similar to the
statutory language examined in Cipollone. The court reasoned that
{l]ike the preemption clause at issue in Cipollone and
unlike that in Medtronic, the preemption provision of FIFRA
is precise and explicit; i.e., a 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." Furthermore, FIFRA, like the Cipollone
statutes, leaves unconstrained all state common law causes
of action for defective products except [282] those based on
inadequate labels. Finally, FIFRA has no escape clauses like
the "grandfathering" and “substantially equivalent"
provisions of MDA. The statute and regulations provide that
substantially all pesticides are subject to extensive review by
the EPA, and the EPA prescribes precise content for
pesticide labels....
294 N.J.Super. at 66, 682 A.2d at 731.
. la, page 10
The Lewis court also expressly rejected the contention that
a common-law action imposing damages was not a state
"requirement," writing that
since FIFRA would preempt a state statute or regulation
which imposes a monetary penalty on a manufacturer for not
using a pesticide label different from that approved by the
EPA, FIFRA also preempts a common law rule that would
subject a manufacturer to a damage judgment for the same
adherence to federal rather than state law.
294 N.J.Super. at 67, 682 A.2d at 732.
actions were preempted by FIFRA. In determining that the
third-party plaintiffs claims, as set forth in the complaint, were
preempted, the court stated that "[i]t was once an open question,
but is now settled by the Supreme Court in Cipollone and
[Medtronic, Inc.}, that ‘requirements’ in this context presumptively
includes state causes of action as well as laws and regulations." 96
F.3d at 563. Thus, the court found that because the negligence and
warranty actions dealt specifically with labeling-based claims, they
were preempted. In so doing, the court was quick to point out that
not €very misdesign or mismanufacturing claim would be preempted
by FIFRA, but, rather, only those that are labeling based.
Despite the strong trend finding preemption before
Medtronic, Inc. and the adherence to the practice by two courts
after Medtronic, Inc., Ackles urges this court to take a different path
preempted. In support of this argument, Ackles asserts that in
determining whether preemption exists, a court must examine only
the language of the pertinent preemption clause, and that there exists
a strong presumption against preemption. Because s 136v does not
la, page 11
explicitly state that FIFRA preempts common-law causes of action
concerning pesticide labeling, Ackles argues that his claim against
Pennwalt should be allowed.
We disagree. If Ackles' labeling-based cause of action
against Pennwalt were allowed to proceed and be successful,
Pennwalt would be stuck between the proverbial rock and hard
place in that it would be required to use the label approved by the
EPA, yet pay damages because a jury determined that such label was
not sufficient. This result would obviously run contrary to the
intentions of Congress in passing FIFRA, namely, that labeling
information will be regulated solely by the federal government.
We therefore hold, in accordance with virtually all courts
that have ruled on this issue both before and after the U.S. Supreme
Court's decision in Medtronic, Inc., that Ackles' labeling-based
cause of action against Pennwalt is preempted by FIFRA and that
the district court was correct in entering a summary judgment in
favor of Pennwalt on that cause of action.
In his remaining assignment of error, Ackles argues that the
district court erred in dismissing his failure-to-warn claim alleged in
the second cause of action, which was based on a negligence theory,
because FIFRA does not preempt such claims.
Ackles' negligence cause of action against Pennwalt is set
forth on pages 5 through 7 of the sixth amended petition, containing
paragraphs 17 through 28. Paragraph 27 of the petition alleges that
Ackles' injuries were a proximate result of Pennwalt's negligence.
Subparagraphs a through i list the various manners in which
Pennwalt was allegedly negligent. However, pursuant to a district
court order dated October 25, 1994, paragraphs 19 through 27 of
the sixth amended petition were stricken. No further amended
petition was filed.
As a result of the October 25 order, there remain only three
paragraphs within the second cause of action, which provide: [284]
17. Plaintiff For his Second Cause of Action
incorporates paragraphs 1 through 16 of his Introductory
Allegations as if fully set forth herein.
la, page 12
18. Defendant Pennwalt manufactured, marketed and
sold the product known as Penncap-M for use by individuals
such as Defendants Brady Coen, Air Care, Inc., Pletcher
Flying Service and Richard F. Luttrell.
28. As a direct and proximate result of the Defendant
Pennwalt Corporation, as set forth above, Plaintiff has
Sustained damages as set forth in paragraph 11, above.
The record does not contain an amended petition after the order of
October 25.
In order to succeed in an action based on negligence, a
plaintiff must establish the defendant's duty not to injure the plaintiff.
a breach of that duty, proximate causation, and damages. Tess v.
Lawyers Title Ins. Corp., 251 Neb. 501, 557 N.W.2d 696 (1997);
Olson v. SID No. 177, 251 Neb. 380, 557 N.W.2d 651 (1997).
Obviously, the three remaining paragraphs for Ackles’ negligence
cause of action fail to plead necessary elements. A bare allegation
of proximate cause and damages without providing information as
to what negligence occurred fails to set forth a negligence cause of
action.
The record before us does not reflect whether Pennwalt's
motion for summary judgment also challenged the sufficiency of the
pleadings or the failure of the petition to state a cause of action in
negligence. We have repeatedly held that a motion for summary
judgment is not intended to be used as a substitute for a demurrer or
motion for judgment on the pleadings. See Ruwe v. Farmers Mut
United Ins. Co., 238 Neb. 67, 469 N.W.2d 129 (1991). We have,
however, held that when it is asserted in a motion for summary
judgment that an Opposing party has failed to state a cause of action,
then the motion may be treated, as to that issue, as one for judgment
on the pleadings. See Hoch vy. Prokop, 244 Neb. 443, 507 N.W.2d
626 (1993). Unique to the instant case is the fact that Pennwalt has
never challenged the sufficiency of Ackles' pleadings regarding the
negligence cause of action. We are thus left with a procedural
muddle. [285]
la, page i3
A motion for summary judgment is to be granted only when
there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Boyd v. Chakraborty, 250
Neb. 575, 550 N.W.2d 44 (1996); Bogardi v. Bogardi, 249 Neb.
154, 542 N.W.2d 417 (1996). Because the petition fails to set forth
a negligence cause of action in its current form, the entertaining of
a motion for summary judgment was inappropriate. See, Slagle v.
J.P. Theisen & Sons, 251 Neb. 904, --- N.W.2d ---- (1997) (court
may not enter summary judgment on issue not presented by
pleadings); Frerichs v. Nebraska Harvestore Sys., 226 Neb. 220,
410 N.W.2d 487 (1987). Remaining, however, is the issue of
whether the negligence claim can be amended such that it does state
a cause of action.
Consequently, we conclude that the district court erred in
granting summary judgment on a petition which fails to state a cause
of action. We therefore reverse the district court's granting of
summary judgment against Pennwalt as it relates to the negligence
causé of action and remand the cause with orders that Ackles be
given an opportunity to amend his petition. For purposes of
remand, we note that, in accordance with the foregoing analysis, a
failure-to-warn or labeling-based cause of action is preempted by
FIFRA.
CONCLUSION
Through its enactment of FIFRA, Congress has preempted
labeling-based common-law causes of action against chemical
manufacturers that abide by the regulations of FIFRA. We therefore
affirm the summary judgment in favor of Pennwalt regarding Ackles’
strict liability cause of action. Because summary judgment was
inappropriately entered against Ackles’ negligence action, we
remand the cause with directions.
AFFIRMED IN PART, AND IN PART REVERSED
AND REMANDED WITH DIRECTIONS.
ee Pee
NEBRASKA SUPREME COURT
AND NEBRASKA COURT OF APPEALS
OFFICE OF THE CLERK
P.O. BOX 98910
2413 State Capitol Building
Lincoln, Nebraska 68509
(402) 471-3731
May 14, 1997
J. Marvin Weems
WEEMS LAW FIRM
218 South 16th Street
P.O. Box 170
Ord, NE 68862 0170
IN CASE OF: S-95-0257, Ackles v. Luttrell
Appeilant/Motion for Rehearing & Brf filed
04/21/97 has been reviewed by the court and the fol-
lowing order entered: Motion of appellant for rehearing
overruled.
Respectfully,
CLERK OF THE SUPREME COURT
AND COURT OF APPEALS
_ 2a, page 1_ = - - -
IN THE DISTRICT COURT OF
VALLEY COUNTY, NEBRASKA
DOC. 21 PAGE 277
CASE NO. 6277
JOURNAL ORDER
(Filed Jan. 20, 1995)
GARY E. ACKLES,
Plaintiff,
VS.
)
)
)
)
RICHARD F. LUTTRELL, )
PLETCHER FLYING SERVICE, ?
INC., A Corporation, n/k/a D )
& L FLYING SERVICE, INC., ?
A Corporation, BRADY COEN, )
and PENNWALT )
CORPORATION, A Foreign
)
)
Corporation,
Defendants.
In regards to the Motion for Summary Judgment filed
by Air Care, Inc. on 10/20/94, said Motion is denied for
the reason that there exists a genuine issue of material
fact as to whether or not said Defendant had relinquished
full control over Mr. Brady Coen (co-Defendant) at the
time of the alleged incident at issue.
In regards to the Motions for Summary Judgment of
Defendants Richard F. Luttrell and Pletcher Flying Ser-
vice, Inc., said Motions are denied for the reason that
there exists issues of material fact as to whether or not
Defendant Mr. Brady Coen was an agent or employee of
Pletcher Flying Service, Inc. under the direct supervision
of Richard F. Luttrell.
In regards to the Defendant, Pennwalt Corporation,
n/k/a Elf Atochem North America, Inc.’s Motion for
Summary Judgment, the Court hereby grants said Motion
3a, page 1
for the reason that Plaintiff’s failure to warn and labeling
claims, found in Plaintiff’s Causes of Action 2 and 3 of
the 6th Amended Petition, present a state law challenge
to the EPA-approved Penncap-M label, which challenge is
expressly preempted by §136v(b) of the Federal Insec-
ticide Fungicide and Rodenticide Act, 7 U.S. Code §136 et
seq.
Furthermore, in light of the above decision, Penn-
walt’s request for a continuance of trial is now moot and
is therefore denied.
WHEREFORE, Defendants Air Care, Inc., Richard F.
Luttrell and Pletcher Flying Service, Inc.’s Motions for
Summary Judgment are hereby denied. Defendant Penn-
walt’s Motion for Summary Judgment is hereby granted
and Plaintiff’s 6th Amended Petition, as to the allegations
against Pennwalt, is hereby dismissed with prejudice.
/s/ Ronald D. Olberding
Hon. Ronald D. Olberding
Valley County District
Court Judge
3a, page 2
7 U.S.C. § 136(v)
(a) In general
A State may regulate the sale or use of any
federally registered pesticide or device in the
State, but only if and to the extent the regulation
does not permit any sale or use prohibited by
this subchapter.
(b) Uniformity
Such State shall not impose or continue in effect |
any requirements for labeling or packaging in |
addition to or different from those required |
under this subchapter. 7
(c) Additional uses
(1) A State may provide registration for addi-
tional uses of federally registered pesticides for- ,
mulated for distribution and use within that |
State to meet special local needs in accord with
the purposes of this subchapter and if registra-
tion for such use has not previously been
denied, disapproved, or canceled by the Admin-
istrator. Such registration shall be deemed regis-
tration under section 136a of this title for all
purposes of this subchapter, but shall authorize
distribution and use only within such State.
a ee ee ee ee
(2) A registration issued by a State under this 7
subsection shall not be effective for more than
ninety days if disapproved by the Administrator
within that period. Prior to disapproval, the
Administrator shall, except as provided in para-
graph (3) of this subsection, advise the State of
the Administrator’s intention to disapprove and
4a, page 1
the reasons therefor, and provide the State time
to respond. The Administrator shall not prohibit
or disapprove a registration issued by a State
under this subsection (A) on the basis of lack of
essentiality of a pesticide or (B) except as pro-
vided in paragraph (3) of this subsection, if its
composition and use patterns are similar to
those of a federally registered pesticide.
(3) In no instance may a State issue a registra-
tion for a food or feed use unless there exists a
tolerance or exemption under the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 301 et seq.)
that permits the residues of the pesticides on the
food or feed. If the Administrator determines
that a registration issued by a State is inconsis-
tent with the Federal Food, Drug, and Cosmetic
Act, or the use of, a pesticide under a registra-
tion issued by a State constitutes an imminent
hazard, the Administrator may immediately dis-
approve the registration.
(4) If the Administrator finds, in accordance
with standards set forth in regulations issued
under section 136w of this title, that a State is
not capable of exercising adequate controls to
assure that State registration under this section
will be in accord with the purposes of this sub-
chapter or has failed to exercise adequate con-
trols, the Administrator may suspend the
authority of the State to register pesticides until
such time as the Administrator is satisfied that
the State can and will exercise adequate con-
trols. Prior to any such suspension, the Admin-
istrator shall advise the State of the
Administrator’s intention to suspend and the
reasons therefor and provide the State time to
respond.
4a, page 2
MEALEY’S: Emerging Toxic Torts
June 3, 1996
Pesticide Regulation (PR) NOTICE 96-4
NOTICE TO MANUFACTURERS, PRODUCERS,
FORMULATORS, AND REGISTRANTS OF
PESTICIDE PRODUCTS
ATTENTION: Persons Responsible for Federal Registra-
tion and Reregistration of Pesticide Prod-
ucts
SUBJECT: Label Statements Involving Product Effi-
cacy and Potential for Harm to Property
I. INTRODUCTION
This notice explains EPA procedures in approving
pesticide labels that include claims relating to the efficacy
of agricultural pesticides and provides a warning to
growers regarding reliance on label statements regarding
pesticide efficacy. EPA is issuing this notice at this time to
correct a misunderstanding regarding the FIFRA label
approval process and efficacy claims that is reflected in a
series of court decisions concerning the preemptive effect
of FIFRA.
Il. LEGAL FRAMEWORK
A. Registration and the Label Approval Process
EPA approves pesticide labels in the process of regis-
tering a pesticide under FIFRA. FIFRA specifies that EPA
shall register a pesticide if:
5a, page 1
(1) its composition is such as to warrant the
proposed claims for it;
(2) its labeling and other material required to
be submitted comply with the requirements of
this Act;
(3) it will perform its intended function with-
out unreasonable adverse effects on the environ-
ment; and
(4) when used in accordance with widespread
and commonly recognized practice it will not
generally cause unreasonable adverse effects on
the environment.
7 U.S.C. 136¢(c)(5). Although the first registration
requirement identified above mandates that EPA consider
efficacy of label claims, Congress, in 1978, explicitly gave
EPA the authority to waive that requirement. FIFRA
States:
In considering an application for the registration
of a pesticide, the Administrator may waive
data requirements pertaining to efficacy, in
which event the Administrator may register the
pesticide without determining that the
pesticide’s composition is such as to warrant
proposed claims of efficacy.
7 U.S.C. 136c(c)(5). The legislative history explains that
Congress believed that product performance issues for
agricultural pesticides were adequately addressed by
information from government and university sources and
market forces:
This authority [to waive efficacy data] will be
used most commonly with respect to agri-
cultural pesticides, due to the high level of
5a, page 2
laa
knowledge concerning pesticidal efficacy that
prevails in the agricultural community, the exis-
tence of means for communicating efficacy
information to users, the organizational exper-
tise of the Department of Agriculture, the exten-
sion services, and the universities in this area,
and the stake the industry has in marketing
products that are efficacious.
S. Rpt. 95-334, 95th Cong., 1st Sess. 20 (July 6, 1977).
EPA has acted under this authority to waive, by
regulation, data requirements as to efficacy issues for all
agricultural pesticides. 44 Fed. Reg. 27932, 27938 (col. 3)
(May 11, 1979); 40 CFR 158.640(b)(1); see also 47 Fed. Reg.
57624 (December 27, 1982). EPA concluded that agricul-
ture pesticides are “effectively regulated by the mar-
ketplace,” 44 Fed. Reg. 27932, 27938 (col. 3) (May 11,
1979), and that waiving review of the efficacy of agri-
cultural pesticides in the registration process would
enable the Agency to focus of its “primary mandate
under FIFRA”: investigating “the health and safety
aspects of pesticides.” 47 Fed. Reg. 53192 (November 24,
1982); 47 Fed. Reg. 40659, 40661 (col. 1) (September 15,
1982). EPA pointed to private legal actions for damages as
one factor that would ensure that pesticide manufacturers
sold an efficacious product: “pesticide producers are
aware that they are potentially subject to damage suits by
the user community if their products prove ineffective in
actual use.” 47 Fed. Reg. 40659, 40661 (col. 2) (September
15, 1982).
EPA has also, by regulation, promulgated various
requirements pertaining to pesticide labels. These regulations
bar the registration of any pesticide with a misbranded label,
5a, page 3
40 CER. 152.112(f), and contain specific examples of label
Statements that are considered false or misleading and thus
render a label misbranded. 40 C.RR. 156.10(a)(5). Addi-
tionally, the regulations have requirements for warning state-
ments and mandate that pesticide products have adequate
use directions. 40 C.ER. 156.10(h) and (i).
B. State Preemption Under FIFRA
FIFRA permits states broad authority to regulate
pesticides but makes it unlawful for states that undertake
such regulation to “impose or continue in effect any
requirements for labeling or packaging in addition to or
different from those required under this Act.” 7 U.S.C.
136v(b). A number of federal court decisions have held
that this preemption of state authority as to pesticide
labels bars damage claims in state court by growers
against pesticide manufacturers. The courts have rea-
soned that allowing such a claim by a grower would be,
in effect, permitting the state to impose label require-
ments “in addition to or different from” the federally-
approved label.
Ill. LABEL APPROVAL AND PESTICIDAL EFFICACY
There have been several recent preemption decisions
involving claims by growers concerning pesticidal effi-
cacy or property damage caused by a pesticide. For exam-
ple, in Taylor Ag Industries v. Pure-Gro, 54 F.3d 555 (9th
Cir. 1995), several growers sued the manufacturers and
distributor of a pesticide that the growers alleged had
damaged their cotton crop even though they had applied
the pesticide according to the label directions. The court
Sa, page 4
denied the growers’ claims on the ground that allowing
recovery of damages would interfere indirectly with
EPA’s “rigorous label-approval process.” Id. at 560. In
Welchert v. American Cyanamid, Inc., 59 F.3d 69 (8th Cir.
1995), and Worm v. American Cyanamid, Inc. 5 F.3d 744
(4th Cir. 1993), growers sued a pesticide manufacturer
seeking recovery for harm to crops allegedly caused
when the manufacturer’s herbicide remained in the soil
and damaged rotated crops. Both courts dismissed the
growers’ claims noting that EPA’s labeling regulations
required instructions on rotational crop restrictions. The
courts reasoned that to permit such lawsuits “would be to
allow state courts to sit, in effect, as super-EPA review
boards that could question the adequacy of the EPA’s
determination of whether a pesticide registrant suc-
cessfully complied with the specific labeling require-
ments of its own regulations.” Welchert, 59 F.3d at 73;
Worm, 5 F.3d at 749.
These court decisions are based on the premise that,
in approving labels for agricultural pesticides, EPA exam-
ines, or at least has the obligation to examine, the efficacy
of the pesticide and related issues such as the potential
for the pesticide to cause property damage. The courts,
however, have not taken into account the plain language
of the statute on this issue and have misinterpreted the
thrust of EPA’s regulations. As noted above, in actual
fact, EPA, with Congress’ approval, stopped evaluating
pesticide efficacy for routine label approvals almost two
decades ago. Further, as explained below, EPA’s regula-
tions do not require a review of efficacy of property
damage issues for agricultural pesticides.
5a, page 5
EPA’s labeling regulations must be interpreted in
light of the statutory requirements for registration and
EPA’s waiver of the requirement for efficacy data on
agricultural pesticides. Because efficacy data is not
reviewed as part of the registration of agricultural
pesticides, it would be incorrect to contend that the label
approval process involves an examination of the efficacy
of the pesticide. Rather, the label approval process is
centered on the issue of the whether label, including the
specification of use sites and the directions for use on the
label, meets the core requirement for registration: that the
pesticide not cause “unreasonable adverse effects on the
environment.” That term is defined as “any unreasonable
risk to man or the environment... . ” 7 U.S.C. 136(bb).
Accordingly, the primary focus in the label approval pro-
cess for agricultural pesticides involves assessing and
regulating the potential risks to humans and the environ-
ment posed by such pesticides.
To this end, EPA applies the requirements in its label-
ing regulations with an eye to risk not efficacy issues.
This is illustrated by how EPA applies label requirements
regarding pesticide use sites and directions for the use of
pesticides including directions concerning rotational
corps. Label regulations require that pesticide use sites
(e.g., specific crops, animals, etc.) be listed on the label
because assessment of the dietary risk of pesticides is
based on the foods that legally may contain the pesticide,
and, under FIFRA, the label establishes the legal limits on
use of a pesticide. 7 U.S.C. 136j(a)(2)(G). Use sites are not
reviewed as to the pesticide’s efficacy for those crops. The
label regulations address the directions for use of a
Sa, page 6
pesticide for the purpose of insuring that pesticide appli-
cators and farmworkers are adequately protected. Addi-
tionally, directions for use establish legal limits as to the
amounts of pesticide that may be applied and thus allow
EPA to control and estimate dietary exposure. EPA does
not check to see whether application equipment men-
tioned in directions for use will be harmed or whether
other property damage might occur. For example, the
label regulations on directions for use specify that rota-
tion crop restrictions are required when needed “to pre-
vent unreasonable adverse effects upon the
environment.” 40 C.F.R. 156.10(i)(2)(x). Such restrictions
are needed for certain pesticides to prevent uptake of
residual pesticide residues from the soil into crops for
which the pesticide is not registered. EPA’s concern is
that the consumption of the rotated crop would increase
dietary exposure to the pesticide residue. Rotational crop
restrictions are not reviewed to determine if the rotated
crop would be injured by the residual pesticide residues.
An additional requirement for registration, noted
above, is that the pesticide’s labeling comply with the
Act. Separately, EPA, by regulation, has required that
labeling not be misbranded. 40 C.R.R. 152.112(f). How-
ever, these registration requirements should not be read
as reintroducing efficacy concerns into the label approval
process. Having directly given EPA the authority to disre-
gard efficacy issues, Congress could not have intended
that, once EPA exercised this authority, the same efficacy
issues would come in through the back door of the label
approval process. Under the statute and its regulations,
EPA still must determine in registering a pesticide if the
pesticide’s label complies with FIFRA or is misbranded
5a, page 7
ae! ott Slt eer MED Ra eel ed ah een rt lt AE Fey Be: Be NE a Ra! = Non
paar Fell}:
but, unless EPA reinstates the requirement to submit effi-
cacy data (either generally or with regard to a particular
pesticide), that compliance and misbranding inquiry will
generally not extend to the evaluation of the efficacy of
the pesticide.
Efficacy and property damage issues are at times
relevant to the continued registration of a pesticide.
FIFRA’s “unreasonable adverse effects” standard requires
EPA to take into account “economic, social, and environ-
mental costs and benefits of the use of any pesticide.” 7
U.S.C. 136(bb). A pesticide’s efficacy and its potential to
cause property damage are factors to be considered in
determining the economic benefit a pesticide provides to
farmers. However, in light of EPA’s waiver of the efficacy
data requirement for initial registration, these issues
would generally only arise following the registration of
the pesticide, including approval of the pesticide label.
For example, if a pesticide manufacturer were to learn
that one its registered pesticides was causing property
damage, the manufacturer would be obligated to report
that information under section 6(a)(2) of the statute. 7
U.S.C. 136¢(a)(2). Additionally, if EPA discovers new risk
concerns with an already-registered pesticide, it might
examine efficacy data with regard to the pesticide in
making an evaluation under the unreasonable adverse
effects standard to determine if the product’s registration
should be cancelled or suspended.
Sa, page 8
IV. CONCLUSION
EPA hopes this Notice will be useful to courts, the
regulated community, and pesticide users. EPA believes
this Notice should be helpful to courts in preemption
cases that involve EPA’s labeling regulations. For exam-
ple, some courts have mistakenly assumed that EPA’s
labeling regulations concerning the directions for use of a
pesticide have an efficacy component. Further, other
courts have erroneously concluded that because a
pesticide label contained warnings regarding property
damage that EPA had necessarily evaluated such warn-
ings and found them to be truthful and adequate. As to
registrants and applicants for registration, this Notice is
intended to confirm that EPA has not altered its regula-
tion relating to the waiver of efficacy data requirements
for the registration of agricultural pesticides. Finally, as to
pesticide users this Notice is intended to clarify that
EPA’s approval of a pesticide label does not reflect any
determination on the part of EPA that the pesticide will
be efficacious or will not damage crops or cause other
property damage.
Daniel M. Barolo
Director, Office of Pesticide
Programs
5a, page 9
SUPPLEMENTAL LABEL
[LOGO]
RESTRICTED USE PESTICIDE
Due to very high acute toxicity to humans and birds. For
retail sale to and use only by certified applicators or
persons under their direct supervision and only for those
uses covered by the certified applicator’s certification.
Direct supervision for this product is defined as the certi-
fied applicator being physically present during applica-
tion, mixing, loading, repair and cleaning of application
equipment. Commercial certified applicators must also
ensure that all persons involved in these activities are
informed of the precautionary statements.
ACCEPTED
FEB 21 1990
Under the Federal Insecticide, Fungicide, and
Rodenticide Act, as amended, for the pesticide
registered under.
EPA Reg. no. 4581-292
PENNCAP-M®
MICROENCAPSULATED INSECTICIDE
(EPA Reg No. 4581-292)
MODIFICATION IN RATE FOR CONTROL OF
APHIDS ON WHEAT, OATS AND BARLEY
DIRECTIONS FOR USE
It is a violation of Federal law to use this product in a
manner inconsistent with its labeling.
6a, page 1
INSECT PINTS/ACRE REMARKS
Aphids (including 2-3 Do not apply
Greenbug) within 15 days of
harvest or grazing
This label and the Federally registered label must be in the
possession of the user at the time of pesticide application.
Follow all applicable restrictions, precautions and
instructions on the Federally registered label.
(11/89)
Agchem Division e Pennwalt Corporation e
3 Parkway e Philadelphia, Pa. 19102 - (manufacturer’s
note at bottom of page 1)
RESTRICTED USE PESTICIDE
Due to very high acute toxicity to humans and birds.
For retail sale to and use only by certified applicators or
persons under their direct supervision and only for those
uses covered by the certified applicator’s certification.
Direct supervision for this product is defined as the certi-
fied applicator being physically present during applica-
tion, mixing, loading, repair and cleaning of application
equipment. Commercial certified applicators must also
ensure that all persons involved in these activities are
informed of the precautionary statements.
PENNEAP-M
MICROENCAPSULATED INSECTICIDE
ACTIVE INGREDIENTS:
O.0-Dimethyl O-p-nitrophenyl
ee eee 20.9%
ic hs OO EET LEE TEE LOTE 1.1%
Xylene Base Aromatic Solvent ............... 4.9%
6a, page 2
INERT ERAGRRUMEINTS 6 o.. occ iccscwceccivcccce. 73.1%
a eT A Ap te ee 100.0%
Methyl Parathion (Contains 2 pounds Methy]
Parathion and Related Isomers per Gallon)
U.S. Patent Nos. 3,429,827, 3,577,515, 3,959,464
KEEP OUT OF REACH OF CHILDREN
AVISO WARNING
PRECAUCION AL USUARIO
Si usted no lee ingles, no use este producto hasta que le
etiqueta haya sido explicado ampliamente.
STATEMENT OF PRACTICAL TREATMENT
IF SWALLOWED, induce vomiting immediately by giv-
ing two glasses of water and sticking finger down throat.
Call a physician. Never give anything by mouth to an
unconscious person.
IF ON SKIN, immediately wash with soap and water and
flush with plenty of water.
IF IN EYES, immediately flush eyes with plenty of water
for at least 15 minutes.
Refer to back panei for Precautionary and
First Aid statements and Note to Physician.
[LOGO] PENNWALT
CHEMICALS « EQUIPMENT
HEALTH PRODUCTS
EPA Registration No. 4581-292
EPA Establishment No. 4581-TX-1
Net Contents:__U.S. Gallons/___Liters
Sold by: :
AGCHEM DIVISION——PENNWALT CORPORATION
Philadelphia, Pa. 19102
6a, page 3
DIRECTIONS FOR USE
It is a violation of Federal Law to use this product in a
manner inconsistent with its labeling.
PENNCAP-M is a flowable formulation consisting of
water suspension of polymenctype microcapsules which
contain methyl parathion. It is applied by air or ground
equipment by diluting it with an amount of water suita-
ble for the specific crop and type of spraying equipment.
For air application, use at least 2 gallons total spray per
acre unless specified otherwise.
First add approximately half of the water to the spray
tank, then add the required quantity of PENNCAP-M
with good agitation, and finally add the rest of the water.
This procedure should be followed to insure proper mix-
ing of PENNICAP-M.
Mixtures of PENNCAP-M with emulsifiable concentrates,
organic solvents, or some surfactants may cause
increased toxicity and shorter residual effectiveness. This
effect is more pronounced with concentrated sprays and
extended periods between mixing and application.
DO NOT USE SCREEN OR NOZZLES FINER THAN 50
MESH. STIR OR SHAKE BEFORE USING.
PENNCAP-M will not control organophosphate resistant
insects.
WORK SAFETY RULES
The National Pesticide Telecommunication Network is
available for recommendations regarding poisoning man-
agement, emergency treatment, and other information
6a, page 4
regarding the toxicity of methyl parathion. The toll free
number for the National Pesticide Telecommunication
Network is 1-800-858-7378.
If handled indoors provide mechanical exhaust ventila-
tion. Keep all unprotected persons, children, livestock,
and pets away from treated area or where there is danger
of drift. Do not rub eyes or mouth with hands. If you feel
sick in any way. STOP work and get help right away. See
First Aid (Practical Treatment) section on main container
label.
HANDLE THE CONCENTRATE ONLY WHEN WEAR-
ING THE FOLLOWING PROTECTIVE CLOTHING AND
EQUIPMENT: Wear a protective suit of one or two pieces
that covers all parts of the body except the head, hands,
and feet. Wear chemical resistant gloves, chemical resi-
stant apron, and chemical resistant shoes, shoe coverings,
or boots. Wear goggles or a face shield. Wear a pesticide
respirator approved by the National Institute for Occupa-
tional Safety and Health under the provisions of 30 CFR
part II.
USE ONLY WHEN WEARING THE FOLLOWING PRO-
TECTIVE CLOTHING AND EQUIPMENT DURING MIX-
ING, LOADING, APPLICATION REPAIR, AND
CLEANING OF APPLICATION EQUIPMENT, DISPOSAL
OF PESTICIDE AND EARLY REENTRY INTO TREATED
AREAS: protective suit of one or two pieces covering all
parts of the body except the head, hands, and feet: chemi-
cal resistant gloves; chemical resistant shoes or chemical
resistant shoe coverings or chemical resistant boots); gog-
gles or face shield; hood or wide brimmed hat; NIOSH
approved respirator.
6a, page 5
IF MIXING/LOADING IS PERFORMED USING A
CLOSED SYSTEM, THE FOLLOWING PROTECTIVE
CLOTHING AND EQUIPMENT MAY BE WORN AS AN
ALTERNATIVE: long-sleeve shirt; long-legged pants;
chemical resistant gloves; chemical resistant apron; shoes
and socks. Goggles or face shield must be worn when the
system is under pressure. All other protective clothing
and equipment required for use with open systems must
be available nearby.
IF APPLICATION IS PERFORMED USING AN
ENCLOSED CAB OR COCKPIT, THE FOLLOWING PRO-
TECTIVE CLOTHING AND EQUIPMENT MAY BE
WORN AS AN ALTERNATIVE: long-sleeve shirt and
long-legged pants; shoes and socks. Chemical resistant
gloves must be available in the cab or cockpit and must
be worn during entry to and exit from the application
vehicle. All other protective clothing and equipment
required for use during application must be available in
the cab and must be worn when exiting the cab into
treated area. When used for this purpose, contaminated
clothing may not be brought back into the cab unless in
an enclosure such as a plastic bag. REMEMBER - THIS
CLOTHING IS INADEQUATE TO PROTECT YOU DUR-
ING REPAIR AND CLEANING OF APPLICATION
EQUIPMENT AND EARLY REENTRY TO TREATED
AREAS! REFER TO PROTECTIVE CLOTHING AND
EQUIPMENT REQUIREMENTS ABOVE.
IMPORTANT! If pesticide comes into contact with skin,
wash off with soap and water and contact a physician
immediately. Always wash hands, face, and arms with
soap and water before smoking, eating, drinking, or
going to the bathroom.
6a, page 6
—
AFTER WORK: before removing gloves, wash them with
soap and water. Take off all work clothes and shoes.
Shower using soap and water. Wear only clean clothes
when leaving job - do not wear contaminated clothing.
Personal clothing worn during work must be stored and
laundered separately from protective clothing and house-
hold articles. Store protective clothing separately from
personal clothing. Clean or launder protective clothing
after each use. Respirators must be cleaned and filters
replaced according to instructions included with the res-
pirators. Protective clothing and protective equipment
heavily contaminated or drenched with methyl parathion
must be destroyed according to state and local regula-
tions. HEAVILY CONTAMINATED OR DRENCHED
CLOTHING CANNOT BE ADEQUATELY DECONTAMI-
NATED. DURING AERIAL APPLICATION, HUMAN
FLAGGERS ARE PROHIBITED.
RE-ENTRY STATEMENT
Do not apply this product in such a manner as to directly
or through drift expose workers or other persons. The
area being treated must be vacated by unprotected per-
sons.
Reentry into treated fields is prohibited for 48 hours after
application, unless all protective clothing and equipment
required for early reentry as described under Work Safety
Rules are worn.
Written or oral warnings must be given to workers who
are expected to be in an area about to be treated with this
product. In case of accidental exposure, workers should
wash thoroughly with soap and water and contaminated
6a, page 7
clothing should be removed and washed before reuse.
When oral warnings are given, warnings shall be given in
a language customarily understood by workers. Oral
warnings shall be given if there is reason to believe that
written warnings cannot be understood by workers. Writ-
ten warnings must include the following information.
“WARNING. Area treated with PENNCAP-M™ insec-
tiide on (date of application). Do not enter without
appropriate protective clothing within 48 hours after
application. In case of accidental exposure, workers
should wash thoroughly with soap and water and con-
taminated clothing should be removed and washed
before reuse.
PRECAUTIONARY STATEMENTS
HAZARDS TO HUMANS
(AND DOMESTIC ANIMALS)
MAY BE FATAL IF SWALLOWED. HARMFUL IF
ABSORBED THROUGH SKIN OR INHALED.
Wash thoroughly with soap and water after handling and
before eating or smoking. Avoid contact with skin, eyes,
or clothing. Avoid breathing vapors and spray mist.
Remove contaminated clothing and wash before reuse.
Use in ventilated areas since accumulation of xylene
vapors may be hazardous. Use with adequate ventilation.
Avoid prolonged breathing of vapor.
FIRST AID: Call a physician in all cases of suspected
poisoning. It is suggested that a suitably equipped local
medical facility be identified prior to using this product.
6a, page 8
Warning symptoms of organophosphate poisoning
include weakness, headache, tightness in chest, blurred
vision, non-reactive pin-point pupils, salivation, sweat-
ing, nausea, vomiting, diarrhea and abdominal cramps. If
these symptoms appear transport the patient imme-
diately to the nearest hospital. Keep patient prone and
quiet. Start artificial respiration immediately if patient is
not breathing.
Note to Physician: The active ingredient of PENNCAP-M
is an organophosphate cholinesterase inhibitor. atropine
is antidotal. 2-PAM is also antidotal and may be adminis-
tered in conjunction with atropine. Morphine is contrain-
dicated.
ENVIRONMENTAL HAZARDS
This pesticide is extremely toxic to aquatic invertebrates
and wildlife. Birds in treated areas may be killed. Shrimp
and other aquatic organisms may be killed at recom-
mended application rates. Do not apply directly to water
or wetlands (swamps, bogs, marshes and potholes). Run-
off and drift from target areas may be hazardous to
aquatic organisms in adjacent aquatic sites. Do not con-
taminate water when disposing of equipment washwa-
ters. Do not apply when weather conditions favor drift or
runoff from target areas.
THIS PRODUCT IS HIGHLY TOXIC TO BEES exposed to
direct treatment or residues on crops or blooming weeks.
Do not apply this product or allow it to drift to blooming
crops or weeds if bees are visiting the areas to be treated.
Refer to and follow the more specific and applicable
precautions in the directions for certain crops. Protective
6a, page 9
information may be obtained from your Cooperative
Extension Service.
STORAGE AND DISPOSAL
Do not contaminate water, food, or feed by storage or
disposal.
Storage Instructions: Store in the original container. Do
not store in a manner where cross-contamination with
other pesticides, fertilizers, food or feed could occur. If
spilled during storage or handling, absorb with sand or
other inert material and dispose of absorbent in accor-
dance with the Pesticide Disposal Instructions listed
below.
Pesticide Disposal Instructions: Pesticide wastes are
acutely hazardous. Improper disposal of excess pesticide,
spray mixture, or rinsate is a violation of Federal Law. If
these wastes cannot be disposed of by use according to
label instructions, contact your State Pesticide or Envi-
ronmental Control Agency, or the Hazardous Waste rep-
resentative at the nearest EPA Regional Office for
guidance.
Container Disposal Instructions: Triple rinse (or equiva-
lent). Then offer for recycling or reconditioning, or punc-
ture and dispose of in a sanitary landfill, or by
incineration, or, if allowed by state and local authorities,
by burning. If burned, stay out of smoke.
WARRANTY AND DISCLAIMER
Pennwalt Corporation warrants that this material con-
forms to the chemical description on the label and is
6a, page 10
esi er ee een
reasonably fit for the Purposes referred to in the Direc-
tions for Use, subject to the risks referred to therein.
PENNWALT MAKES NO OTHER EXPRESS OR IMPLIED
WARRANTY OF FITNESS OR MERCHANTABILITY OR
ANY OTHER EXPRESS OR IMPLIED WARRANTY. IN
NO CASE SHALL PENNWALT OR SELLER BE LIABLE
FOR CONSEQUENTIAL, SPECIAL OR INDIRECT DAmM-
AGES RESULTING FROM THE USE OR HANDLING OF
THIS PRODUCT INCLUDING, BUT NOT LIMITED TO,
LOSS OF PROFITS, BUSINESS REPUTATION, OR CUS-
TOMERS; LABOR COST: OR OTHER EXPENSES
INCURRED IN PLANTING OR HARVESTING.
Pennwalt and seller offer this Product and the buyer and
user accept it subject to the foregoing conditions of sale
and warranty which may be varied only by agreement in
writing signed by a duly authorized representative of
Pennwalt.
6a, page 11
IN THE DISTRICT COURT OF
VALLEY COUNTY, NEBRASKA
GARY E. ACKLES, CASE NO. 6277
Plaintiff,
A
SIXTH AMENDED
RICHARD F. PETITION AT LAW
LUTTRELL and
PLETCHER
FLYING SERVICE,
INC., A Corporation,
n/k/a
D & L FLYING
SERVICE, INC..,
A Corporation,
BRADY COEN,
AIR CARE, INC.,
A Foreign
Corporation and ELF
ATOCHEM
NORTH AMERICAN,
INC., a
Foreign Corporation
Defendant.
i ee ee a a a oe a ee ee ee, ee ee, ee ee ee eee ee
PLAINTIFF STATES THAT:
Introductory Allegations
1. Plaintiff is a resident of Ord, Valley County, Nebraska.
2. Defendant Richard F. Luttrell is a resident of Greeley
County, Nebraska. Defendant Pletcher Flying Service, Inc., is a
corporation organized under the laws of the State of Nebraska, with its
principal place of business in North Loup, Valley County, Nebraska.
Pletcher Flying Service, Inc., is now known as ("n/k/a") D & L Flying
7a, page |
in Plaintiff's Petition. Defendant Air Care, Inc. is a corporation organized
under the laws of the State of Colorado, with its principat place of business
in Lamar, Prowers County, Colorado. Defendant Brady Coen is presently a
resident of the State of Colorado.
3. Richard F. Luttrell, Brady Coen and Air Care, Inc. were at
4. Defendant Elf Atochem North American, Inc., formerly
and hereinafter referred to as "Pennwalt”, is a corporation organized in a
state other than Nebraska with its principal place of business in
Pennsylvania.
a On August 2, 1991, between 10:45 a.m. and 11:00 a.m.,
while Plaintiff was delivering mail in Valley County, Nebraska, he became
exposed to a pesticide identified as Penncap-M which pesticide was being
sprayed on corn in a field adjacent to the road where Plaintiff was
6. Said pesticide was manufactured, marketed and sold by
Pennwalt.
A Upon information and belief, Plaintiff states that the field
being sprayed was located within the following legal description:
The Northeast one-quarter (NE 1/4) of Section
21, Township 18 North, Range 14 West, the 6th
PM, in Valley County, Nebraska.
apply aerial spray on the above described real estate on August 2, 1991.
Brady Coen was employed by Air Care, Inc. or Pletcher Flying Service, Inc.
or both on August 2, 1991.
9. The fumes from the pesticide known as Penncap-M were
ingested by Plaintiff and upon Plaintiff ingesting these fumes he became
nauseated and ill.
10. On August 4, 1991 Plaintiff was admitted to Good
Samaritan Hospital in Kearney Nebraska with an admission diagnosis of
"exposure to organophosphate poisoning” and was eventually discharged
on August 11, 1991.
11. As a direct and proximate result of the Plaintiff becoming
exposed to the pesticide known as Penncap-M, Plaintiff has sustained the
following by way of damages:
a. Organophosphate poisoning;
b. Depression and anxiety;
c. Physical pain and mental suffering in the past and
it is reasonably certain that Plaintiff will incur
physical pain and mental suffering in the future;
d. Medical bills in the past and it is reasonably
certain that Plaintiff will sustain medical bills in
the future;
e. Loss of wages in the past and it is reasonably
certain that Plaintiff will sustain future loss of
wages, and,
f. Permanent impairment of Plaintiff's earning
capacity.
12. Plaintiff was 52 years of age and had a life expectancy of
23.3 years on August 2, 1991.
13. Plaintiff's wife, Jeanne Ackles, has assigned to Plaintiff in
writing all causes of action she may have for medical bills and expenses as
a result of this accident, including loss of consortium. That a copy of said
Assignment is attached hereto, marked Exhibit "A", and incorporated
herein by reference.
7a, page 3
First Cause of Action
Negligence as to Brady Coen and Richard F. Luttrell
14. Plaintiff for his First Cause of Action incorporates
paragraphs | through 13 of Introductory Allegations as if fully set forth
herein.
15. The exposure of Piaintiff to the pesticide known as
AS TO THE DEFENDANT BRADY COEN
a. In failing to ensure that there were no humans,
such as Plaintiff, in close proximity to the field
where the defendant was spraying on August 2,
1991; and,
b. In failing to spray the field of corn with the
pesticide known as Penncap-M in such a manner
as to prevent the wind from blowing the pesticide
AS TO DEFENDANTS RICHARD F. LUTTRELL,
PLETCHER FLYING SERVICE AND AIR CARE, INC.
a. In failing to ensure that there were no humans,
such as Plaintiff, in close proximity to the field
where the Defendants were spraying on August 2.
1991:
b.- In failing to spray the field of corn with the
pesticide known as Penncap-M in such a manner
as to prevent the wind from blowing the pesticide
into an area where individuals such as Plaintiff
might be situated:
7a, page 4
Cc. In failing to properly supervise and control Brady
Coen while he was spraying the field of corn
previously identified in Plaintiff's Petition;
d. In failing to investigate the background of Brady
Coen to determine if he had training and/or
experience as an aerial pesticide applicator; and
6. In failing to determine whether Brady Coen was
duly licensed as a certified aerial pesticide
applicator in the State of Nebraska.
16. As a direct and proximate result of the negligence of
Defendants Brady Coen, Richard F. Luttrell, Pletcher Flying Service and
Air Care, Inc. as set forth above, Plaintiff has sustained damages as set
forth in paragraph 11, above.
Second Cause of Action
Negligence as to the Defendant Pennwalt Corporation
17. Plaintiff For his Second Cause of Action incorporates
paragraphs | through 16 of his Introductory Allegations as if fully set forth
herein.
18. Defendant Pennwalt manufactured, marketed and sold the
product known as Penncap-M for use by individuals such as Defendants
Brady Coen, Air Care, Inc., Pletcher Flying Service and Richard F. Luttrell.
19. Defendant Pennwalt knew, or should have known, the
danger involved in the condition of the product, Penncap-M, if the work
entrusted to the contractor was not carefully and skillfully done.
20. Defendant Pennwalt, knew, or should have known, the
character of the work was not of the kind which a competent contractor is
so likely to do properly that it is reasonable to rely entirely or to a certain
extent upon the contractor's competence as a sufficient assurance that the
work will be safely done.
21. Defendant Pennwalt knew, or should have known, the
ability which the employer had or should have to appreciate the proper or
improper character of the work done by the contractor.
22. Defendant Pennwalt knew, or should have known, the ease
or difficulty of ascertaining the actual character of the completed work.
7a, page 5
On
23. Defendant Pennwalt knew, or should have known, the
existence of a relation between the contractor's employer and those injured
by the €ss or incompetent work of the contractor which entitles them to
expect the employer will personally exercise care for their safety
24. By reason of the nature of the product known as Penncap-
M and relationship of the parties, Defendant Pennwalt had a nondelegable
failure to maintain and control the application ste in a safe condition fie
27. The exposure of Plaintiff to the pesticide known as
Penncap-M and the resulting illness which Plaintiff incurred were a direct
and proximate result of the negligence of Defendant Pennwalt in each and
all the following respects:
a. In failing to effectively train and warn applicators
they must ensure that there were no humans, such
as Plaintiff, in close proximity to the field where
Defendants Pletcher Flying Service, Inc., Richard
F. Luttrell, Air Care, Inc. and Brady Coen were
spraying on August 2, 1991; and,
b. In failing to effectively train and warn applicators
to spray the field of corn with the pesticide known
as Penncap-M in such a manner as to prevent the
wind from blowing the pesticide into an area
where individuals such as Plaintiff might be
situated.
7a, page 6
¢. In failing to properly supervise and control
Pletcher Flying Service, Inc., Richard F. Luttrell,
Air Care, Inc. and Brady Coen while spraying the
field of corn previously identified in Plaintiff's
Petition;
d. In failing to investigate the backgrounds of
Pletcher Flying Service, Inc., Richard F. Luttrell,
Air Care, Inc. and Brady Coen to determine if
they had training and/or experience as an acrial
pesticide applicator;
€. In failing to determine whether Brady Coen was
duly licensed as a certified aerial pesticide
applicator in the State of Nebraska;
f. In failing, neglecting and refusing to properly
design and carry out application of the product in
such a way to protect travelers and, in particular,
the Plaintiff, from unreasonable risk of personal
injury,
g. In failing, neglecting and refusing to maintain and
keep safe the area in which Plaintiff was
traveling;
h. In failing, neglecting and refusing to warn and
instruct those individuals traveling the road,
particularly the Plaintiff, as to the dangers
i. bs Seite eeciiaiien da eli ie geamecly
inspect, analyze and, if necessary, correct, the
aerial application process, particularly the
warning signs and barricades, so as to insure that
the road was in a safe condition, free from
hazards, defects and dangers.
28. As a direct and proximate result of the
Defendant Pennwalt Corporation, as set forth above, Plaintiff has sustained
damages as set forth in paragraph 11, above.
7a, page 7
Third Cause of Action
Strict Liability as to the Defendant Pennwalt Corporation
29. Plaintiff for his Third Cause of Action incorporates
paragraphs | through 28 of his Introductory Allegations as if fully set forth
herein.
30. Defendant Pennwalt manufactured, marketed and sold the
product known as Penncap-M for use by individuals such as the
Defendants Brady Coen, Air Care, Inc., Pletcher Flying Service, Inc. and
Richard F. Luttrell.
ak. Defendant placed Penncap-M on the market for use and
this Defendant knew, or in the exercise of reasonable care should have
known, that this product would be used by applicators such as Brady Coen,
Air Care, Inc., Pletcher Flying Service, Inc. and Richard F. Luttrell.
32. The product known as Penncap-M was in a defective
condition at the time it was placed on the market and left Defendant
Pennwalt's possession.
33. The defective condition rendered the Penncap-M
unreasonably dangerous.
34. The defects referred to in paragraphs 32 and 33 above,
were the following:
a. In failing to adequately and properly warn users
of, and other persons who will forseeably be
endangered by, the product known as Penncap-M
of the toxic nature of the product:
b. in failing to provide written instructions to aerial
applicators of the product known as Penncap-M
as to the manner in which the product should be
applied; and,
C. In placing on the market for use a product which
is toxic and creates an unreasonably dangerous
condition when human beings such as the Plaintiff
become exposed to the product.
7a, page 8
35. As a direct and proximate result of the defects set forth in
paragraph 34, above, the Plaintiff sustained damages as set forth in
paragraph 11, above.
WHEREFORE, Plaintiff prays for judgment on his First Cause of
Action against Defendants Air Care, Inc. Brady Coen, Pletcher Flying
Service, Inc., n/k/a D & L Flying Service, Inc. and Richard F. Luttrell, for
judgment on his Second Cause of Action against Defendant Pennwalt and
for judgment on his Third Cause of Action against Defendant Pennwalt for
his special damages, general damages as allowed by law, and his costs
incurred herein.
GARY E. ACKLES, Plaintiff
By: /s/ J. Marvin Weems
One of Plaintiff's Attorneys
Mandy L. Strigenz, #20208
E. Terry Sibbernsen, #13826
E. TERRY SIBBERNSEN, P.C.
P.O. Box 24268
Omaha, NE 68124
(402) 493-7221
and
J. Marvin Weems, #14428
J. MARVIN WEEMS, P.C.
218 South 16th Street
P.O. Box 170
Ord, NE 68862-0170
(308) 728-3285
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
above and foregoing Sixth Amended Petition At Law was mailed by
regular U.S. mail to John O. Sennett, P O Box 326, Broken Bow, NE
68822; Brian D. Nolan, 1905 Harney Street, #800, Omaha, Nebraska
68102; and Brady Coen, c/o Air Care, Inc., P O Box 321, Lamar, Colorado
81052 on the 9th day of September, 1994.
/s/ J. Marvin W:
J. Marvin Weems
7a, page 9
eT es
IN THE DISTRICT COURT OF
VALLEY COUNTY, NEBRASKA
GARY E. ACKLES,
Plaintiff,
DOC 21 PAGE
RICHARD F. LUTTRELL, CASE NO. 6277
PLETCHER FLYING SERVICE, AMENDED
INC., ANSWER
A Corporation, n/k/a/ D & L
FLYING SERVICE, INC., A
Corporation, BRADY COEN, and
PENNWALT CORPORATION, A
Foreign Corporation,
ett dn de i eh
Defendants.
COMES NOW Defendant, Pennwalt Corporation (n/
k/a Elf Atochem North American, Inc.), a Foreign Corpo-
ration, by and through its attorney of record, Brian D.
Nolan, and states the following in response to the Sixth
Amended Petition of the plaintiff:
1. This Defendant is without information to admit
or deny Paragraph i of Plaintiff’s Sixth Amended Peti-
tion.
2. This Defendant is without information to admit
or deny Paragraph 2 of Plaintiff’s Sixth Amended Peti-
tion.
3. This Defendant is without information to admit
or deny Paragraph 3 of Plaintiff’s Sixth Amended Peti-
tion. |
8a, page 1
4. This Defendant admits Paragraph 4 of Plaintiff's
Sixth Amended Petition.
5. This Defendant denies Paragraph 5 of Plaintiff's
Sixth Amended Petition.
6. This Defendant denies Paragraph 6 of Plaintiff’s
Sixth Amended Petition.
7. This Defendant denies Paragraph 7 of Plaintiff’s
Sixth Amended Petition.
8. This Defendant denies Paragraph 8 of Plaintiff’s
Sixth Amended Petition.
9. This Defendant denies Paragraph 9 of Plaintiff's
Sixth Amended Petition.
10. This Defendant admits Paragraph 10 of Plain-
tiff’s Sixth Amended Petition.
11. This Defendant denies Paragraph 11, including
all subparts thereto of Plaintiff’s Sixth Amended Petition.
12. This Defendant denies Paragraph 12 of Plain-
tiff’s Sixth Amended Petition for lack of information.
13. This Defendant denies Paragraph 13 of Plain-
tiff’s Sixth Amended Petition for lack of information.
14. For response to Paragraph 14 of Plaintiff’s Sixth
Amended Petition, this Defendant incorporates its
responses to Paragraphs 1 through 13 of Plaintiff's intro-
ductory allegations as if fully set forth herein.
15. This Defendant denies Paragraph 15 and all sub-
parts of Plaintiff’s Sixth Amended Petition
16. This Defendant denies Paragraph 16 of Plain-
tiff’s Sixth Amended Petition.
8a, page 2
17. For response to Paragraph 17 of Plaintiff’s Sixth
Amended Petition, this Defendant incorporates its
responses to Paragraphs 1 through 16 of Plaintiff’s intro-
ductory allegations as if fully set forth herein.
18. This Defendant admits Paragraph 18 of Plain-
tiff’s second cause of action in Plaintiff’s Sixth Amended
Petition.
19. No response is required as to Paragraph 19 of
Plaintiff's Sixth Amended Petition for the reason that
same was stricken by prior order of this court.
20. No response is required as to Paragraph 20 of
Plaintiff's Sixth Amended Petition for the reason that
same was stricken by prior order of this Court.
21. No response is required as to Paragraph 21 of
Plaintiff’s Sixth Amended Petition for the reason that
same was stricken by prior order of this Court.
22. No response is required as to Paragraph 22 of
Plaintiff's Sixth Amended Petition for the reason that
same was stricken by prior order of this Court.
23. No response is required as to Paragraph 23 of
Plaintiff’s Sixth Amended Petition for the reason that
same was stricken by prior order of this Court.
24. No response is required as to Paragraph 24 of
Plaintiff's Sixth Amended Petition for the reason that
same was stricken by prior order of this Court.
25. No response is required as to Paragraph 25 of
Plaintiff's Sixth Amended Petition for the reason that
same was stricken by prior order of this Court.
8a, page 3
26. No response is required as to Paragraph 26 of
Plaintiff's Sixth Amended Petition for the reason that
same was stricken by prior order of this Court.
27. No response is required as to Paragraph 27 of
Plaintiff's Sixth Amended Petition for the reason that
same was stricken by prior order of this Court.
28. This Defendant denies Paragraph 28 of Plain-
tiff’s Sixth Amended Petition.
29. For response to Paragraph 28 of Plaintiff’s Sixth
Amended Petition, this Defendant incorporates its
responses to Paragraphs 1 through 13 of Plaintiff's intro-
ductory allegations as if fully set forth herein.
30. This Defendant admits Paragraph 30 of Plain-
tiff’s Sixth Amended Petition.
31. This Defendant admits Paragraph 31 of Plain-
tiff’s Sixth Amended Petition.
32. This Defendant denies Paragraph 32 of Plain-
tiff’s Sixth Amended Petition.
33. This Defendant denies Paragraph 33 of Plain-
tiff’s Sixth Amended Petition.
34. This Defendant denies Paragraph 34 of all sub-
parts of Plaintiff's Sixth Amended Petition.
35. This Defendant denies Paragraph 35 of Plain-
tiff’s Sixth Amended Petition.
AFFIRMATIVE DEFENSES
This Defendant states the following as affirmative
defenses to the Plaintiff's Sixth Amended Petition:
8a, page 4
icaatinl
A. Misuse:
This Defendant affirmatively alleges that the
pesticide product at issue was misused in its application.
This misuse being unforeseeable, this Defendant cannot
be found liable for any resultant injuries in relation to the
use of the pesticide product.
B. Superseding Cause:
This Defendant affirmatively alleges that the acts of
third parties intervened, preventing any actions on behalf
of this Defendant from Causing, in any way, harm to the
Plaintiff, in that the co-Defendants misused the product
manufactured by this Defendant thus rendering this
Defendant not liable for any resultant injuries in relation
to the pesticide product at issue.
C. Intervening Cause:
This Defendant affirmatively alleges that an interven-
ing force actively operated to produce harm to the Plain-
tiff in that the Plaintiff was exposed to the pesticide
manufactured by this Defendant because of misuse on
behalf of co-Defendants in their application and therefore
this Defendant cannot be found liable for any resultant
injuries in relation to the use of this pesticide.
D. Preemption:
Plaintiff's alleged cause of action against this Defen-
dant is preempted by the provisions of the Federal Insec-
ticide, Fungicide and Rodenticide Act, § 24(a,b), as
amended 7 U.S.C.A. § 136v(a, b).
8a, page 5
E. State of the Art:
This Defendant affirmatively alleges that the product
it manufactured, identified as Penncap-M, and referred to
in Piaintiff’s Sixth Amended Petition represented the
state of the art for such products, thereby barring the
Plaintiff’s action.
F. Idiosyncratic Reaction:
This Defendant affirmatively alleges that in the event
that Plaintiff is found to have been exposed to this Defen-
dant’s product, which exposure is expressly denied, that
any reaction that Plaintiff has was an Idiosyncratic Reac-
tion, and does not indicate or in any manner suggest that
the Plaintiff’s product was unreasonably dangerous.
WHEREFORE, this Defendant prays that Plaintiff’s
Sixth Amended Petition be dismissed with prejudice at
Plaintiff’s cost and that this Defendant be allowed to
recover its costs expended herein.
PENNWALT CORPORATION, A
Foreign Corporation, Defendant
By: /s/ Brian D. Nolan
Hansen, Engles & Locher,
x
800 Exchange Building
1905 Harney Street
Omaha, Nebraska 68102
(402) 348-0900
Brian D. Nolan, #17764
8a, page 6
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 22nd
day of October, 1994, the above and foregoing was served
by regular United States mail, postage prepaid upon the
following:
E. Terry Sibbernsen, #13826
E. TERRY SIBBERNSEN, PC.
P. O. Box 24268
Omaha, Nebraska 68124-0268
J. Marvin Weems, #14428
P.O. Box 170
Ord, Nebraska 68862
John O. Sennett, #13766
Attorney at Law
P.O. Box 326
922 South E Street
Broken Bow, NE 68822
Brady Coen
c/o/ Air Care, Inc.
P.O. Box 321
Lamar, Colorado 81052
Mr. Gregory Jensen
1532 L Street
P. O. Box 310
Ord, NE 68862-0310
/s/ Illegible
8a, page 7
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.