# Opposition Brief — Dow AgroSciences LLC v. Sleath

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1768%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 814

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1768%3A3. Public record. Not legal advice.