Opposition Brief — Dow AgroSciences LLC v. Sleath

Supreme Court, U.S.

. ) FILED

C i

No. 00-1674 JUL 3 2001

In The CLERK

Supreme Court of the United States

¢

DOWELANCO; EPCO, INC.; and

ROFAN SERVICES, INC.,

Petitioners,

VS.

LIBBY SLEATH, MARY ANN HAYES,

GLENDA TRUESDELL, and MARY OWEN,

Respondents.

,

W

On Petition For A Writ Of Certiorari

To The Supreme Court Of The State Of Montana

¢

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

¢

Peter MicHaAtt MeELoy

Counsel of Record

JENNIFER S. HENDRICKS

Metoy Law Firm

The Bluestone

80 South Warren, P.O. Box 1241

Helena, Montana 59624

(406) 442-8670

Tom SCHEUNEMAN

2550 Point del Mar

Corona del Mar, California 92625

(949) 721-8114

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

TA CH AUTO oo hea k isc cei enccawneeas ii

UES cea haP us Aes dginw pach ei asedaka cs 1

STATEMGNs OF TEE CASE, «once nc ccc csnecenncs 1

REASONS FOR DENYING THE WRIT............. 3

I. This Court Lacks Jurisdiction Because the Deci-

sion Below Is Not a Final Judgment........... 3

A. The Decision Below Is Not a Final

IE 55 5.005 64 edb a on entas she ne eex nen 4

B. This Case Does Not Fall Within the

Recognized Exceptions to the Final Judg-

ge errerrrrr rer ere rr rer red 5

1. Reversal By This Court Would Not Ter-

minate the Litigation on the Relevant

eG gg ere reer rrr ret eer) e 6

2. Awaiting Final Judgment Would Not

Seriously Erode Any Federal Policy.... 8

II. The Question Presented Does Not Warrant This

eg BR ay Seen ore nr reine mee a erat one 11

A. This Case Is a Poor Vehicle for Addressing

ty ge | Pere PTET TTT Tere Tee 12

B. The Decision Below Does Not Conflict With

Any Decision of This Court................ 14

C. The Decision Below Was Correct........... 16

D. The Question Presented Is Not Ready for

Be TN OBO in nos his ednnd tren cars 19

phe eb ee UEC nore ree ry es ee ee rT ee eee 20

li

TABLE OF AUTHORITIES

Page

CASES

Ackerman v. Amer. Cyanamid Co., 586 N.W.2d 208

(lowe WOGB) .....ccasincenawekananedeees bees eseces 4

Am. Airlines, Inc. v. Wolens, 513 U.S. 219 (1995)...... 18

Andrus v. AgrEvo USA Co., 178 F.3d 395 (5th Cir.

W999)... ccecsccsusesakscaeeeeeeeeeeSOGREsenuses 19

Auer v. Robbins, 519 U.S. 452 (1997) ............. eee 17

Belknap, Inc. v. Hale, 463 U.S. 491 (1983). ..........4.. 9

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

App. 1999), rev. denied, 6 P.3d 1098 (Or. 2000)..... 19

Calder v. Jomes, 465 ULB. FES CEMUe uo 056s savascvccesas 9

Chem. Specialties Mfrs. Ass'n, Inc. v. Allenby, 958

F.2d 941 (9th Cir. 1992), cert. denied, 506 U.S. 825

(2992) os ccsccvenschancampeheeepeeetereetaaen seve. 12

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, inc., G67 WS. Ge Te as kas a pc cccevessss 17

Cipollone v. Liggett Group, Inc., 505 U.S. 504

¢ 4 eer ie te Ra 14, 15, 16, 19

Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) .... passim

Eide v. E.I. du Pont de Nemours & Co., 542 N.W.2d

TOD CSD. THOR) 5 iis xn ts oy ctepn teense dean weecan cs 3

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

SOD). «vcs snnascgae ne daneahoe teneneeeNeasy we 10, 19

Florida v. Thomas, __ U.S. __, 121 S.Ct. 1905

(BOGE)... 0c vcn onus ciiis\ Sateen Cnes Be mmeee sees 8

Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) ...7, 9

Geier v. Amer. Honda Motor Co., 529 U.S. 861 (2000) .... 17

iii

TABLE OF AUTHORITIES - Continued

Page

Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988) .... 10

Higgins v. Monsanto Co., 862 F.Supp. 751 (N.D.N.Y.

neti carve keaase nek hess sa wun ate aenen 18

Jefferson v. City of Tarrant, 522 U.S. 75

BORE ree Te eee eT errr ee a, 4, 9 Ti

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

1997), cert. denied, 523 U.S. 1137 (1998)............ 19

Local No. 438, Constr. & Gen. Laborers’ Union v.

eo meg OR 2 o era 9

Lorillard Tobacco Co. v. Reilly, _ U.S. __, 2001 WL

poe Be) re ener ere 14, 17

Mkt. St. Ry. Co. v. R.R. Comm'n, 324 U.S. 548 (1945) ..... +

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

Meh sins khdaekwsancieaesns thee sees » Fe

Medtronic, Inc. v. Lohr, 518 U.S. 470

RU ce cyan he hina uskeataseseeses 3, 14, 15, 16, 19

Mercantile Nat'l Bank v. Langdeau, 371 U.S. 555

Be ee rere ee Pry ee Pree rere Peer oe rete 9

Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241

| ER eee Tee eee Perr rere Tre er 9, 10

N.Y. State Pesticide Coalition, Inc. v. Jorling, 874 F.2d

eR ee Ea eer rer ree 12

Nat’l Bank of Commerce v. Dow Chem. Co., 165 F.3d

tgs ee err rrr rT tee 4,19

Nat'l Socialist Party v. Village of Skokie, 432 U.S. 43

SR Sei ey eer reer Teer rer rer Teer eer ye 9

Nathan Kimmel, Inc. v. DowElanco, 64 F.Supp.2d 939

Pe RNs ROE 5 ribs Asc ned cwesancacws Ue ewee sin’ 19

nT eee

iv

TABLE OF AUTHORITIES - Continued

Page

Pennsylvania v. Ritchie, 480 U.S. 39 (1987)............. 9

Pitts v. Dow Chem. Co., 859 F.Supp. 543 (M.D. Ala.

PEE io 5b Sack ox besa sean kiko Rhee eens aaeiens 6

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) .... 16

San Diego Gas & Elec. Co. v. City of San Diego, 450

See Me CEE ck hb xi be veka la oe bea noieeed caus 7

Shaffer v. Heitner, 433 U.S. 186 (1977)..............06. 9

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ......... 17

Sleath v. West Mont Home Health Servs., Inc., 16 P.3d

ee i EE ak Kae saree eb ee ears 19

Southland Corp. v. Keating, 465 U.S. 1 (1984).......... 9

Sternhagen v. Dow Co., 935 P.2d 1139 (Mont. 1997)..... 6

United States v. Mead, __ U.S. __, 121 S.Ct. 2164

SEES Sus ha dG eed aa de ee ana eee eee wae ae 17, 18

Wis. Pub. Intervenor v. Mortier, 501 U.S. 597

2, | RE Spey ep eER Met Leo aes 12, 15

Worm v. Amer. Cyanamid Co., 970 F.2d 1301 (4th

aee.. SUED has 00 ok 0c ake Sak a ee es 4

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

Rs x 05-54 Gaede aka kk a koe aad eee EL 5

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Const. art. VI (Supremacy Clause).............. 10

CED. SME MUN, Bis sic des ea Gi cis FR esa 9

rR a ee er rr: Pr 2, 15, 16, T9

Vv

TABLE OF AUTHORITIES - Continued

Page

pL ae ee | eee er re ee se tse st 14

DP WBA. © Rae vt 060k pease ereienesen i

RuLES

Moor. &. Co Pade. S66) bi iia eee 2

Bicone. BVM. Bes os vos cease secbasieiees eee 10

OTHER AUTHORITY

Chlorpyrifos; End-Use Prods. Cancellation Order, 66

Fem: Titi. Fee GHG) cc oncctsuncisnaneeueeie Fs

JURISDICTION

DowElanco contends the Court has jurisdiction

under 28 U.S.C. § 1257. DowElanco admits the decision

below is not a final judgment but argues this Court

should nonetheless exercise jurisdiction under the fourth

exception described in Cox Broadcasting Corp. v. Cohn, 420

U.S. 469 (1975). The inapplicability of that exception is

discussed below, as the first reason for denying the writ.

¢

STATEMENT OF THE CASE

Respondents Libby Sleath, Mary Ann Hayes, Glenda

Truesdell, and Mary Owen (collectively “Ms. Sleath”)

brought this action against DowElanco, among other

defendants, to recover for injuries caused by a Dow-

Elanco pesticide called Dursban. The active ingredient in

Dursban is chlorpyrifos, an organophosphate and a

chemical relative of the nerve gases used in World Wars I

and II. Dursban also contains other organophosphates

listed on the label as “inert” ingredients. (App. A to

DowElanco’s petition, pp. 3a-4a.)

Organophosphates, including chlorpyrifos and the

“inert” Dursban ingredients, are central and peripheral

nervous system poisons. They can cause numerous inju-

ries and symptoms, including headache, dizziness, flu-

like malaise, urinary frequency, confusion, and diffi-

culties with memory and concentration. After Dursban

was repeatedly applied inside the respondents’ work-

place without their knowledge, each of them developed

some or all of these symptoms. (App. A to petition, p. 4a;

Compl. {{ 13, 18-19.)

The EPA recently banned almost all uses of Dursban

because of its adverse effects on human health and the

environment. Chlorpyrifos; End-Use Prods. Cancellation

Order, 66 Fed. Reg. 7753 (2001).

The Complaint in this case states causes of action

under Montana law for negligence, strict liability due to

design defect, and breach of implied and express warran-

ties. Ms. Sleath’s express warranty claim is based on the

Dursban labels, which included the statement,

DowElanco warrants that this product conforms

to the chemical description on the label and is

reasonably fit for the purposes stated on the

label when used in strict accordance with the

directions, subject to the inherent risks set forth

below.

(App. A to petition, p. 4a.) The trial court was therefore

bound to follow the Montana Supreme Court’s decision

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

1997), and find the express warranty claim preempted by

the Federal Insecticide, Fungicide, and Rodenticide Act

(FIFRA), 7 U.S.C. § 136v(b). (App. B to petition, pp.

35a-36a.) The trial court went further, however, accepting

DowElanco’s argument that all claims, including the

design defect claim, are in some way “based on”: the

labels. (App. B to petition, pp. 36a-42a.) The court there-

fore granted DowElanco’s motion for summary judgment

on all claims.

The trial court certified the preemption question for

interlocutory appeal to the Montana Supreme Court

under Montana Rule of Civil Procedure 54(b). The Mon-

tana Supreme Court reversed. It noted it had decided

McAlpine without considering this Court’s decision in

- Oe =

— ere ne

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), and upon re-

examining the question it found McAlpine to be mistaken.

(App. A to petition, p. 18a.) The court concluded that

FIFRA does not preempt any of Ms. Sleath’s claims. It

therefore did not reach the question of which particular

claims are “based on” the pesticide labels, and it

remanded for trial.

DowElanco asks this Court to issue a writ of cer-

tiorari to consider whether FIFRA’s labeling —

preempt state common law causes of action “based on” a

pesticide’s labeling. If the Court rules in its favor, Dow-

Elanco asks that this case be remanded to the Montana

Supreme Court for determination of whether the design

defect, negligence, and implied warranty claims are label-

based. a

*

REASONS FOR DENYING THE WRIT

I. This Court Lacks Jurisdiction Because the Decision

Below Is Not a Final Judgment.

The decision below is “avowedly interlocutory,”

Jefferson v. City of Tarrant, 522 U.S. 75, 81 (1997), and is not

a final judgment for purposes of 28 U.S.C. § 1257. The Cox

exception relied upon by DowElanco does not apply

because immediate review would not terminate litigation

on all relevant causes of action and because adherence to

the final judgment rule would create no serious ‘threat to

federal policy. }

A. The Decision Below Is Not a Final Judgment.

“To be reviewable by this Court, a state-court judg-

ment must be final ‘in two senses: it must be subject to no

further review or correction in any other state tribunal; it |

must also be final as an effective determination of the

litigation and not of merely interlocutory or intermediate

steps therein. It must be the final word of a final court.’ ”

Jefferson, 522 U.S. 75, 81 (1997) (quoting Mkt. St. Ry. Co. v.

R.R. Comm'n, 324 U.S. 548, 551 (1945)). The final judgment

rule minimizes this Court’s interference with state litiga-

tion and promotes the orderly conduct of litigation. When

“{rjesolution of the state-law claims could effectively

moot the federal questions,” Jefferson, 522 U.S. at 82, a

writ of certiorari is unnecessary and therefore beyond the

scope of jurisdiction authorized by § 1257.

DowElanco asks this Court to decide the general

question of whether FIFRA preempts common law claims

“based on” a pesticide’s label. It suggests that the case

then be remanded to the Montana Supreme Court to

determine which of Ms. Sleath’s claims are label-based.

Of course, the decision on remand will be just as much a

“final judgment,” in DowElanco’s view, as the one cur-

rently submitted for review. If the Montana Supreme

Court were to hold that the design defect claim, for

example, is not based on the label, DowElanco would

then have, in its view, yet another “final judgment” on

which to petition for a writ of certiorari. See Ackerman v.

Amer. Cyanamid Co., 586 N.W.2d 208, 215 (Iowa 1998)

(design defect claims are not preempted by FIFRA); see

also, e.g., Nat'l Bank of Commerce v. Dow Chem. Co., 165 F.3d

602, 607 (8th Cir. 1999) (same); Worm v. Amer. Cyanamid

Co., 970 F.2d 1301, 1307 (4th Cir. 1992) (same), reaffirmed

5

after remand, 5 F.3d 744, 747 (1993); Eide v. E.I. du Pont de

Nemours & Co., 542 N.W.2d 769, 772 (S.D. 1996) (same). After

trial, Dow could file yet another appeal, claiming that the

facts as proved at trial show that even the design defect

claim was “really” label-related all along. In DowElanco’s

view, then, this litigation can be “final” in the state courts at

least three times before it is actually concluded.

B. This Case Does Not Fall Within the Recognized

Exceptions to the Final Judgment Rule.

In Cox, this Court held that it may treat an interlocutory

state-court decision as final in four types of circumstances.

The first three are when the “federal issue is conclusive or

the outcome of further proceedings preordained”; when the

federal issue “will survive and require decision regardless of

the outcome of future state-court proceedings”; and when

later review of the federal issue will be foreclosed regardless

of the outcome of the case. Cox, 420 U.S. at 479-81. Dow-

Elanco concedes that none of these first three exceptions

applies. It relies instead on the fourth exception:

[1] where the federal issue has been finally decided

in the state courts with further proceedings pend-

ing in which the party seeking review here might

prevail on the merits on nonfederal grounds, thus

rendering unnecessary review of the federal issue

by this Court, and [2] where reversal of the state

court on the federal issue would be preclusive of

any further litigation on the relevant cause of

action .. . , if a refusal immediately to review the

state court decision might seriously erode federal

policy.

Cox, 420 U.S. at 482-83.

Only the first component of the fourth Cox exception

is met in-this case. As to the second component of the

fourth exception, although the Montana Supreme Court

has finally decided the federal issue, reversal of its deci-

sion will not terminate litigation on the relevant causes of

action, and honoring the final judgment rule in this case

will pose no serious threat to federal policy. Therefore,

the fourth exception does not apply, and this Court lacks

jurisdiction to grant DowElanco’s petition.

1. Reversal By This Court Would Not Termi-

nate the Litigation on the Relevant Causes

of Action.

DowElanco argues that a ruling in its favor on the

question presented would preclude further litigation on

the express warranty claim. (Pet. p. 2 n. 1.) That claim,

however, is not the only relevant cause of action. Dow-

Elanco’s position is that all Ms. Sleath’s claims — express

warranty, implied warranty, negligence, and design

defect - are preempted. All four claims are therefore

“relevant” to the petition.

Ms. Sleath agrees with DowElanco that, if this Court

were to reverse, the individual claims would need to be

examined in the first instance by the state court. Whether

Ms. Sleath’s claims are “label-based” depends on what

she must prove. See, e.g., Pitts v. Dow Chem. Co., 859

F.Supp. 543 (M.D. Ala. 1994) (analyzing elements of state-

law claim to determine whether preempted). For exam-

ple, the fact that Montana does not recognize a state-of-

the-art defense to strict liability, see Sternhagen v. Dow Co.,

935 P.2d 1139 (Mont. 1997), is relevant to whether the

design defect claim impermissibly invades the federal

sphere. Analysis of that claim would also be affected by

the EPA’s recent order recognizing the dangers of

Dursban. Thus, even if DowElanco were to prevail here,

the federal preemption question would remain alive in

this litigation, and this Court could expect another peti-

tion — from either DowElanco or Ms. Sleath - asking for

review of the Montana court’s conclusions regarding

which particular claims are preempted. Because three

causes of action to which DowElanco claims a preemption

defense would continue to be litigated even if DowElanco

were to prevail in this Court, the fourth Cox exception is

not satisfied. See San Diego Gas & Elec. Co. v. City of San

Diego, 450 U.S. 621, 633 (1981) (state-court decision find-

ing a taking of property non-final because court

remanded for determination of compensation); Cox, 420

U.S. at 477 (“In most, if not all, of the cases in these

categories, [the] additional proceedings would not

require the decision of other federal questions that might

also require review by the Court at a later date.”).

DowElanco’s reliance on Fort Wayne Books, Inc. v.

Indiana, 489 U.S. 46 (1989), to avoid this problem is mis-

placed. The petitioner there had asserted a First Amend-

ment defense to prosecution under Indiana’s RICO

statute. He was charged with six obscenity violations in

addition to the two RICO counts, but he “rais[ed] no

objection to the obscenity indictments,” challenging only

the constitutionality of the RICO charges. Fort Wayne

Books, 489 U.S. at 54. A ruling in his favor by this Court

would have precluded any further litigation on the two

counts to which the question presented for certiorari was

relevant. Although the six obscenity counts remained,

they had nothing to do with the question presented to

this Court, and the fourth Cox requirement was satisfied.

That requirement would be satisfied in this case only if

DowElanco were to abandon its preemption defense to

Ms. Sleath’s design defect, negligence, and implied war-

ranty claims. Cf. Florida v. Thomas, __ U.S. __, 121 S.Ct.

1905, 1909 (2001) (holding Cox did not apply because “the

State has not conceded that the search is invalid,” despite

respondent’s concession at oral argument that affirmance

would, as a practical matter, end case). Because it has not

done so, a decision in DowElanco’s favor on the question

presented would lead inevitably to further litigation on

its preemption defense.

2. Awaiting Final Judgment Would Not Seri-

ously Erode Any Federal Policy.

This case also falls outside the exception because

postponing review until final judgment would not seri-

ously erode federal policy. Unless a case triggers some

special federal policy “that is not common to all run-of-

the-mine decisions” interpreting federal law, a petitioner

“can make no claim of serious erosion of federal policy.”

Florida v. Thomas, 121 S.Ct. at 1910. The cases this Court

has accepted under the fourth Cox exception have

involved a very few federal policies, none of which is

involved here. Accepting review at this juncture would

allow the fourth Cox exception to swallow the final judg-

ment rule.

The Court has found a danger to important federal

policies in cases involving questions of jurisdiction and

venue, in which the petitioner claims a federal policy

~

protects it from the jurisdiction asserted by the state

tribunal. For example, in Local No. 438, Construction &

General Laborers’ Union v. Curry, 371 U.S. 542 (1963),

which was discussed in Cox as an example of the fourth

exception, the state court had enjoined union picketing

despite the claim that the National Labor Relations Board

had exclusive jurisdiction over the controversy. This

action threatened to erode national labor policy requiring

the Board to oversee such disputes, and the issue of the

state court’s power to proceed was, in effect, separable

from the merits. See also, e.g., Calder v. Jones, 465 U.S. 783,

788 n. 7 (1988); Southland Corp. v. Keating, 465 U.S. 1, 6-7

(1984); Belknap, Inc. v. Hale, 463 U.S. 491, 497 n. 5 (1983);

Shaffer v. Heitner, 433 U.S. 186, 195 n. 12 (1977); Mercantile.

Nat'l Bank v. Langdeau, 371 U.S. 555, 557-58 (1963).

A few cases, including Curry and Pennsylvania v.

Ritchie, 480 U.S. 39, 48 n. 7 (1987), have suggested that the

time-dependent nature of a case may weigh in favor of

accepting review under the fourth exception. In Jefferson,

however, the Court limited Ritchie to its facts, indicating

that the urgency of the question to the parties would not

necessarily satisfy the requirement that the state-court

decision threaten to erode federal interests. Jefferson, 522

U.S. at 83-84. Here, there is nothing time-sensitive;

indeed, DowElanco has yet to be held liable on any claim,

and the decision below does not alter the status quo.

First Amendment issues, including those raised in

Cox itself, figure prominently under the fourth exception. -

See, e.g., Fort Wayne Books, 489 U.S. 46; Nat'l Socialist Party

v. Village of Skokie, 432 U.S. 43, 53 (1977); Miami Herald

Publ’g Co. v. Tornillo, 418 U.S. 241 (1974). Like the over-

breadth doctrine, the Court’s review of First Amendment

10

cases before final judgment reflects its willingness to

construe jurisdictional doctrines broadly in order to pre-

vent “chilling” of protected speech. See Cox, 420 U.S. at

484-85 (discussing Tornillo). No such policy is at issue

here.

Finally, in Goodyear Atomic Corp. v. Miller, 486 U.S.

174 (1988), this Court applied the fourth Cox exception

because the interests of the federal government were

directly at stake. Goodyear Atomic involved state regula-

tion of a federal facility - “the only nuclear facility pro-

ducing nuclear fuel for the Navy’s nuclear fleet.”

Goodyear Atomic, 486 U.S. at 180. As a general rule, such

regulation violates the Supremacy Clause. The state stat-

ute was saved only because Congress had authorized the

regulation. Contrary to DowElanco’s argument, Goodyear

Atomic does not stand for the proposition that all state

decisions rejecting preemption defenses pose serious

threats to federal policy and require immediate review.

DowElanco also suggests that the reasoning of the

Montana Supreme Court’s decision itself poses a threat to

some federal policy. In particular, Dow attacks the Mon-

tana court’s reliance on the government amicus brief. That

brief was filed by the United States Department of Jus-

tice, representing the EPA, in Etcheverry v. Tri-Ag Service,

Inc., 993 P.2d 366 (Cal. 2000), and thus required the con-

currence of the Solicitor General. The Montana Supreme

Court properly took judicial notice of the government’s

views under Montana Rule of Evidence 202. (Order,

8/26/99, denying DowElanco’s motion to strike.) Dow-

Elanco’s petition does not challenge the decision to take

judicial notice. Even if it were correct that the Montana

11

Supreme Court gave undue consideration to the govern-

ment’s views, such an error would not create a jurispru-

dential crisis or undermine any federal policy. The only

risk cited by DowElanco is that other courts might find

Montana’s reasoning persuasive. The danger, then, for

DowElanco, is that the decision below will cause other

jurisdictions to consider the government’s perspective

and perhaps reach a conclusion similar to Montana’s.

Although this possibility threatens DowElanco’s claimed

immunity from liability, it fails to constitute a threat to

federal policy. See also infra at part II.D.

“This case, still sub judice in [Montana], was brought

to this Court too soon.” Jefferson, 522 U.S. at 484. The

decision below poses no threat to any of the federal

policies this Court has identified as qualifying for the

fourth Cox exception. In light of the EPA’s position on

preemption, the Court can be assured there is no immi-

nent danger to that agency’s ability effectively to carry

out its regulatory duties. A ruling in DowElanco’s favor

by this Court would only trigger further litigation of

DowElanco’s preemption defense. This Court should

therefore dismiss the petition for lack of jurisdiction.

Il. The Question Presented Does Not Warrant This

Court’s Review.

The question presented in the petition is unworthy of

review because the preemption issue in this case is nar-

row, because there is no conflict with any decision of this

Court, because the decision below was correct, and

because the Court should allow further percolation in the

12

lower courts before acting on the issue of FIFRA preemp-

tion actually presented by this case.

A. This Case Is a Poor Vehicle for Addressing

FIFRA Preemption.

Granting a writ of certiorari in this case will not

allow the Court definitively to resolve issues surrounding

FIFRA preemption of common law claims because the

preemption issue in this case is exceptionally narrow in

three ways.

First, Ms. Sleath and the other plaintiffs were inno-

cent bystanders to the use of Dursban at their workplace.

They were not the pesticide applicators or users to whom

EPA regulations and the labels on the product were

directed. These plaintiffs never saw the labels, nor were

they intended to. Thus, they have failure-to-warn claims

based on the failure to provide point-of-use warnings,

rather than on the EPA-regulated labels. This Court has

already held that a state or local government can require

point-of-use warnings for pesticides with EPA-registered

labels. Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 603

(1991) (holding that local ordinance could require

“placards giving notice of the pesticide use and of any

label information prescribing a safe reentry time”). The

courts of appeals have also recognized the distinction

between labels and point-of-use warnings, and they have

concluded that state requirements governing the latter

are not preempted. Chem. Specialties Mfrs. Ass'n, Inc. v.

Allenby, 958 F.2d 941 (9th Cir. 1992) (holding consumer

notification requirements were not preempted), cert.

denied, 506 U.S. 825 (1992); N.Y. State Pesticide Coalition,

siti aia

13

Inc. v. Jorling, 874 F.2d 115, 199 (2nd Cir. 1989) (“FIFRA

‘labeling’ is designed to be read and followed by the end

user. .. . By contrast, the target audience of the New York

notification program is those innocent members of the

general public who may unwittingly happen upon an

area where strong poisons are present as well as those

who contract to have pesticides applied.”). Thus, there is

no split of appellate authority on this question, which is

narrower than the issue of whether a pesticide applicator

or user, who had read the labels, could bring common

law claims against the manufacturer.

Second, Ms. Sleath’s failure-to-warn claims are prem-

ised in large part on DowElanco’s failure to act on infor-

mation it acquired after Dursban was registered with the

EPA. This fact significantly narrows the preemption ques-

_ tion because it means Ms. Sleath’s claims do not involve

any attack on the EPA’s regulatory decision, based on the

information available at the time of registration.

Finally, particularly in light of the EPA’s recent order

recognizing the dangers of chlorpyrifos, Ms. Sleath’s

claim that Dursban is unreasonably dangerous does not

conflict with any action or policy of the EPA. Contrary to

DowElanco’s suggestion that a jury’s decision in a com-

mon law action is based on “inadequate information”

(Pet. p. 26), the jury in this case will have much more

information about Dursban than the EPA did when it

initially allowed DowElanco to register the label.

Dursban’s current status, the narrowness of the preemp-

tion issue in this case, and the fact that this Court has

already spoken on the issue of point-of-use warnings,

make this case a poor vehicle for the Court to develop an

14

analysis of FIFRA preemption that will be helpful to the

lower courts.

—

B. The Decision Below Does Not Conflict With

Any Decision of This Court.

Far from conflicting with this Court’s decisions in

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), and

Medtronic, the Montana Supreme Court's decision was a

faithful application of the teachings of those cases. Dow-

Elanco argues Cipollone and Medtronic held that the word

“requirements” in a preemption clause of a federal statute

always results in broad preemption of common law

claims. DowElanco is correct that Cipollone held that the

Public Health Cigarette Smoking Act’s prohibition of any

“requirement or prohibition . . . under State law,” 15

U.S.C. § 1335(b), preempted a common law claim for

failure to warn. Cipollone, 505 U.S. at 521. At the same

time, however, the Court held that an earlier version of

the same statute - stating, “[no] statement relating to

smoking and health . . . shall be required” - did not

preempt common law claims. Medtronic, 518 U.S. at 488,

n. 8 (discussing Cipollone, 505 U.S. at 518-20). Determin-

ing the scope of each preemption clause required careful

analysis of the statutory text and congressional intent.

The Court’s recent decision in Lorillard Tobacco Co. v.

Reilly, __ U.S. __, 2001 WL 721016 (June 28, 2001), drew

on Cipollone, dealt with positive enactments of state law

rather than common law damages actions, and reaffirmed

this approach by its detailed attention to congressional

intent with respect to cigarette labeling.

15

DowElanco is correct that many lower courts, includ-

ing the Montana Supreme Court in McAlpine, subse-

quently applied the first holding of Cipollone

mechanically to find preemption of all common law

claims wherever the word “requirement” appeared. This

Court’s decision in Medtronic demonstrated again that

preemption analysis requires consideration of the partic-

ular statute, not wholesale incorporation of conclusions

from another context. In Medtronic, a majority of the

Court held that the reference to “requirements” in the

Medical Device Act did not preempt the petitioner’s man-

ufacturing and labeling claims, nor did it preempt claims

premised on violations of federal regulations. Medtronic,

518 U.S. at 494-502. The Court was unanimous in con-

cluding that the design defect claim was not preempted.

Medtronic, 518 U.S. at 492-94; id. at 513 (O’Connor, J.,

concurring in part and dissenting in part).

The Montana Supreme Court heeded the teaching of

Medtronic by re-visiting McAlpine. It examined the text of

§ 136v(b) and of FIFRA as a whole. (App. A to petition,

pp- 1la-12a, 21a-23a.) It noted, for example, that outside

of § 136v(b) the word “requirements” appears in FIFRA

seventy-four times, in each instance referring only to

enactments of positive law. (App. A to petition, p. 22a.) It

considered the views of the agency charged with admin-

istering the Act. (App. A to petition, pp. 15a-16a.) It

compared the effects of common law damages actions to

the types of regulation FIFRA, as interpreted in Mortier,

expressly authorizes states to impose. (App. A to petition,

p- 23a.) Because the teaching of both Cipollone and

Medtronic is that a claim of preemption requires just this

16

kind of analysis, the decision below does not conflict with

any decision of this Court.

C. The Decision Below Was Correct.

In addition to applying faithfully the tenets of Cip-

ollone and Medtronic, the Montana Supreme Court's deci-

sion was correct. A full discussion of the merits is beyond

the scope of this brief, but a few points deserve comment.

When Congress legislates in a field traditionally

occupied by the states, this Court presumes “ ‘that the

historic police powers of the States were not to be super-

seded by the Federal Act unless that was the clear and

manifest purpose of Congress.’” Medtronic, 518 U.S. at

485 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

230 (1947)). This presumption applies to the scope as well

as the fact of preemption. Id. Despite DowElanco’s exten-

sive discussion of the legislative history of FIFRA, it does

not claim to have discovered there evidence of a clear and

manifest intent to preempt common law claims. Dow-

Elanco attacks the Montana Supreme Court’s conclusion

that Congress appeared to assume common law claims

would survive § 136v(b), but the most it can claim is that

the legislative history is inconclusive. In the court below,

it asserted that “Congress did not specifically consider”

preemption of common law claims when it debated

FIFRA. (Supp. Br. of Resps., 9/17/99, p. 12.) Given the

presumption against preemption, an inconclusive legisla-

tive history does not help DowElanco. Rather, it requires

the conclusion that common law claims are permitted by

§ 136v(b). Because DowElanco cannot seriously argue

that the common law claims asserted here directly con-

flict with federal law or that Congress has occupied the

17

field, Ms. Sleath’s claims are not preempted. See Lorillard,

2001 WL 721016, *10 (noting three ways in which preemp-

tion can arise).

Second, the Montana Supreme Court was correct to

give consideration to the government’s views. This Court

recently reaffirmed that the government’s views can

properly be considered in helping a court with its task. In

Geier v. American Honda Motor Co., 529 U.S. 861 (2000), the

Solicitor General submitted a brief explaining the Depart-

ment of Transportation’s position in favor of preemption.

The Court held those views were entitled to weight, even

though they were expressed in litigation rather than for-

mal rulemaking:

We have no reason to suspect that the Solicitor

General’s representation of DOT’s views reflects

anything other than “the agency’s fair and con-

sidered judgment on the matter.” . . . The failure

of the Federal Register to address pre-emption

explicitiy is thus not determinative.

Geier, 529 U.S. at 884 (quoting Auer v. Robbins, 519 U.S.

452, 461-62 (1997)). Even more recently, the Court noted

that the “well-reasoned views of the agencies implement-

ing a statute constitute a body of experience and

informed judgment to which courts and litigants may

properly resort for guidance.” United States v. Mead, __

U.S. __, 121 S.Ct. 2164, 2170 (2001) (distinguishing Chev-

ron deference from Skidmore deference, Chevron U.S.A.

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984), and Skidmore v. Swift & Co., 323 U.S. 134 (1944)).

Although the Montana Supreme Court did not have the

benefit of this Court’s opinion in Mead, and thus couched

its discussion solely in terms of Chevron, it did not simply

18

adopt the government’s views. Rather, it conducted its

own analysis, giving the government's brief “respect

according to its persuasiveness.” Mead, 121 S.Ct. at 2168.

That brief is not merely the litigating position of govern-

ment attorneys for the simple reason that the EPA is not

suing or being sued. The Montana court properly consid-

ered the federal government's views.

Finally, on the EPA-approved label attached to con-

tainers of Dursban, DowElanco voluntarily warranted the

safety of the product. That DowElanco proposed such a

label and the EPA approved it demonstrates that both

believed a warranty was possible. If DowElanco’s pre-

emption argument were correct, FIFRA would render

DowElanco legally incompetent to make a warranty, since

any warranty could never be enforced. Cf. Am. Airlines,

Inc. v. Wolens, 513 U.S. 219, 228 (1995) (federal preemption

did not “shelter airlines from suits alleging no violation

of state-imposed regulations, but seeking recovery solely

for the airline’s alleged breach of its own, self-imposed

undertakings”); Higgins v. Monsanto Co., 862 F.Supp. 751,

761 (N.D.N.Y. 1994) (“[A] warranty does not lose its

voluntary quality through EPA approval [under

FIFRA].”). Both DowElanco and the EPA understood that

Congress did not intend to deprive injured people of

their right to recover damages from the manufacturer of a

pesticide. Therefore, the Montana Supreme Court’s deci-

sion was correct. .

19

D. The Question Presented Is Not Ready for This

Court’s Review.

The EPA’s public stance on FIFRA preemption has

prompted action from other courts besides Montana’s. As

discussed above, the courts that have taken DowElanco’s

position in the past have done so by mechanically apply-

ing a portion of the holding in Cipollone to FIFRA. The

“overwhelming authority” cited by DowElanco consists

largely of those same courts adhering to prior decisions

without undertaking a thorough review of the statute.

See, e.g., Andrus v. AgrEvo USA Co., 178 F.3d 395, 398-99

(Sth Cir. 1999); Nat'l Bank, 165 F.3d at 608; Kuiper v. Amer.

Cyanamid Co., 131 F.3d 656, 662 (7th Cir. 1997), cert. denied,

523 U.S. 1137 (1998). A closer analysis of Medtronic and

consideration of the government’s brief has led both

Montana and Oregon to conclude that common law

claims are not preempted by § 136v. Sleath v. West Mont

Home Health Servs., Inc., 16 P.3d 1042 (Mont. 2000); Brown

v. Chas. H. Lilly Co., 985 P.2d 846 (Or. Ct. App. 1999), rev.

denied, 6 P.3d 1098 (Or. 2000). A federal district court has

reached the same conclusion and urged its court of

appeals to reconsider the question. Nathan Kimmel, Inc. v.

DowElanco, 64 F.Supp.2d 939, 944 (C.D. Cal. 1999). Only

the California Supreme Court, in a 4-3 decision, has

adhered to preemption after considering the govern-

ment’s position. Etcheverry, 993 P.2d_366. Other courts

should have the opportunity to weigh in on this matter.

The fact that the lower courts are engaged in a develop-

ing debate over FIFRA preemption, and that the Montana

Supreme Court’s decision in this case may contribute to

and influence the direction of that debate, is a reason for

20

this Court to wait until the arguments have been more

fully dissected by the states and by the courts of appeals.

+

CONCLUSION

The petition for a writ of certiorari should be denied

for lack of jurisdiction and because the question pre-

sented is not worthy of review.

Respectfully submitted,

Peter MicHAEL MELoy

Counsel of Record

JENNIFER S. HENDRICKS

ME toy Law Firm

The Bluestone

80 South Warren, P.O. Box 1241

Helena, Montana 59624

(406) 442-8670

Tom SCHEUNEMAN

2550 Point del Mar

Corona del Mar, California 92625

(949) 721-8114

Attorneys for Respondents