Petition for Writ of Certiorari — Netland v. Hess & Clark, Inc.

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Supreme Court, U.S.

FILED

02 219 AUG - 92002

No. 02- OFFICE OF THE GLERK

IN THE

Supreme Court of the United States

KIM NETLAND,

Petitioner,

HEss & CLARK, INC.,

‘Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth-Circuit

PETITION FOR A WRIT OF CERTIORARI

ROBERT J. FEIGH BRIAN WOLFMAN

CHRISTOPHER W. HARMONING (Counsel of Record)

GRAY, PLANT, MOoTY, ALLISON M. ZIEVE

Moorty & BENNETT, P.A. SCOTT L. NELSON

1010 West St. Germain PUBLIC CITIZEN LITIGATION

Suite 600 GROUP

St. Cloud, MN 56301 1600 20th Street, NW

(320) 252-4414 Washington, DC 20009

(202) 588-1000

Counsel for Petitioner

August 9, 2002

QUESTION PRESENTED

Does the Federal, Insecticide, Fungicide, and

Rodenticide Act, 7 U.S.C. § 136v, preempt state-law product-

liability claims premised on a defendant pesticide

manufacturer’s failure to warn of the pesticide’s hazards and to

properly design the pesticide?

TABLE OF CONTENTS

QUESTION PRESENTBOD 5.005.526.5235 obs esha i

TABLE OF AUTHORITIES ............ececcececes iv

PETITION FOR A WRIT OF CERTIORARI ........... 1

OPINED. cieic en ss l

JUMEEICTOR eeae e l

STATUTE BIVOENGD i. sooo ss 1

STATEMENT OF THE CASE ...............0.0000: 2

A. The Structure Of FIFRA. ............... 2

B. Factual Background And Proceedings Below.7

1. Kim Netland’s Injuries .............. 7

4. DOWN. 5.600524 8

3. Poocpodings Bas oc. kin ccceacntss 9

REASONS FOR GRANTING THE WRIT ............ 11

A. This Court Should Resolve The

Conflicts In Appellate Authority

On The Question Presented. ........... 11

B. The Decision Below Incorrectly

Construes The Scope Of

Preemption Under FIFRA. ............. 18

ESET ORE BTS CRETE EEE 28

PI 5k on Goin ct dawn de ve cedscvoneerscces la

Eighth Circuit Decision, March 26, 2002 .....-.- la

D. Minn. Decision, April 16,2001 .........-- lla

Eighth Circuit Order Denying Rehearing,

May 13, 2002 ........- eee cree ee eeeeees 24a

TABLE OF AUTHORITIES

CASES

Ackerman v. American Cyanamid Co.,

586 N.W.2d 208 (lowa 1998) ............. 15,17

American Airlines, Inc. v. Wolens, 513 U.S. 220 (1995) .. 14

American Cyanamid Company v. Geye,

2002 WL 1448843 (Tex. June 6, 2002) ............ 18

Andrus v. AgrEvo USA Co.,

7S F356 9S CG Cer. 1999) 2... ccc ccc cccse 16

Brown v. Chas. H. Lilly Co.,

985 P.2d 846 (Or. App. 1999),

rev. denied, 6 P.3d 1098 (Or. 2000) ............... 12

Chemical Specialties Manufacturers Association v. Allenby,

958 F.2d 941 (9th Cir.),

cert. denied, 506 U.S. 825 (1992) ................ 28

Cipollone v. Liggett Group, Inc.,

IOS U.S. SOG CUFSE) ow ce vescce 18, 21, 22, 23, 26, 27

Didier v. Drexel Chemical Co.,

938 P.2d 364 (Wash App. 1997) ................. 16

Eide v. E.I. Du Pont De Nemours & Co.,

542 N.W.2d 769 (S.D. 1996) ................. 15,17

Etcheverry v. Tri-Ag Services, Inc.,

76 Cal. Rptr. 2d 466 (Cal. App. 3d Dist. 1998),

rev'd, 993 P.2d 366 (Cal. 2000) .....---e eee ee eres 12

Etcheverry v. Tri-Ag Services, Inc.,

993 P.2d 366 (Cal. 2000) ....--- ese r errr 12, 18

Ferebee v. Chevron Chemical Co.,

736 F.2d 1529 (D.C. Cir. 19BA) 0 ccc cceeccce: 12, 24

Frey v. Montgomery Ward & Co.,

258 N.W.2d 782 (Minn. 1977) ..------s+sseerree 25

Geier v. American Honda Motor Co., Inc.,

529 U.S. 861 (2000) ....---eeereerrreserrrtt 14

Goodyear Atomic Corp. V. Miller, 486 U.S. 174 (1988) .. 23

Grenier v. Vermont Log Buildings, Inc.,

96 F.3d 559 (Ist Cir. 1996) ...---- essere 15, 16

Higgins v. Monsanto Co.,

862 F.Supp. 751 (N.D.N.Y. a) 17

Hillsborough County v. Automated Medical Laboratories,

Inc., 471 U.S. 707 (1985)... +--+ eee reer errr 14

Kawamata Farms v. United Agri Products,

948 P.2d 1055 (Haw. 1997) ...---- essere 18

Lee v. Madigan, 358 U.S. 228 (1959) ....--2eeeeeeees 19

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) .... 10, 14, 25

National Bank of Commerce v. Dow Chemical Co.,

165 F.3d 602 (8th Cir. 1999) ............ .. 10, 15,17

New York State Pesticide Coalition v. Jorling,

874 F.2d 115 (2d Cir. 1989)..................... 28

Papas v. Upjohn Co., 985 F.2d 516 (11th Cir. 1993) .... 28

Pfeifer v. EI. Du Pont de Nemours and Co. '

606 N.W.2d 773 (Neb.), cert. dismissed,

950 US. 19D OBO) oo 5s Be A hock oboe cee 16

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984) .... 23

Sleath v. West Mont Home Health Services, Inc..,

16 P.3d 1042 (Mont. 2000),

cert. denied sub nom., Dow AgroSciences LLC vy.

Sleath, 122 S. Ct. 40 (2001) .................. 12

Taylor Ag Industries v. Pure-Gro,

54 F.3d 555 (9th Cir. 1995) .................. 11,18

Wisconsin Public Intervenor y. Mortier,

IOs Ua OOe CN bins Sa dediince sce 3

Worm v. American Cyanamid Co.,

970 F.2d 1301 (4th Ci:. ce, LETT er ea & 11,15

Worm v. American Cyanimid Co. ;

> F356 POG GOR Cie NOPE) ons ccc bo ecce snk. 16

STATUTES

USL. § U6Q) nian 20

PU TORO ooo is. os csesnenantdavdtsckd- 27

OES BIA) 651.6 Se: 6

PELREt BARIIIIAD 5... oso ccecc ths den¥een tose bss 6

ne ne: OPE e rey eer ree 6,7

oreo Pere Ee 4

PUIGC; SOMA ... . occ ssccccseddeessovses 4

Ca, ee ore 5, 20

SRERS: ADT) . .. <0 5.000.00555 008 4, 5, 20, 25

PEROT BAMA)... 5500500 cc celeceeceess 4

Ce ane 4

sc ueveavas vedenbveenses 3

ee errr rr Pore re 4

Wie BARRE ois. oscas ss caetiti eee. 20, 25

PAR ROMINA) 55... 5.00000 seth iw seeeses. 4

PUM CIID «<5 55055 Seee nse cess 4

RO RU i a acon va tbindenne soe 6, 20

DU AN ai iki osc g hdtv iced vos 7,25

St ANON ac... Soo 5, 26

CGR 00 iii ite udbles ihe 7

FUSE CISION inne insc tind eens 6,7

TUR CI nin choad 7

ee arn ath eee 7

7 U.S.C. § 136k(bX3) ........ee eens. Nieside GDR) 7

TUR PIs... cc eee a 7

99160: 6K oi iin BURRS i, 1

PUNO CIDE fois cides hc th 3, 22

USC. 606i i passim

TUB OHIO icc c ose cssc..teees a 3

1S WO. GOON i ick ai Sad oaks ccc 3,19

UNC. CAMNiiid. ihe 3

8 OE. BTID: oo vickcenndssstoitentlas ae 27

5 OE ON 5252) eae 25

USC. 68k is... CREA

ee oy ee es rr re wee y 12

WUBL. 0 ISIN. oo. cins cscs eee 9

lowa Code Ann. § 206.32 ........ccccccccccccseces 23

Md. Agric. Code § 5-210.5 .....--eeeeeee errr ereeee 23

REGULATIONS

21 C.F.R. § 801.420 0... cece eee eee eee e eee ees 3

21 CF.R. § 801.430 .. 0... eee eee eee eee nee e reece 3

91 CFR. Part 820 .... 2. cece reece cece eee cceeeees 26

40 C.F.R. § 152.112 20... cece cere cece rece eee ees 4

40 C.F.R. § 152.168(b) ...-. cece eee eee eee eee ees 6

40 C.F.R. § 152.44 2... cece cece cere ener een eee ences 6

40 C.F.R. § 152.50(€) 0... ee eee eee e rece eee eeees 4

40 C.F.R. § 156.10(a1) «0... cece eee eee eee eees 20

40 C.F.R. § 156.10(aX2) .... ee eee cece e neers 4

40 C.F.R. § 156.10(h) 2.0... cece e ee eee erence eeees 3

40 C.F.R. § 156.1011)... eee eee ees 5, 20

40 C.F.R. § 156.10(i)(2)(iii) 6. eee 5, 20

40 C.F.R. § 156.10(i)(2)iV) . 6. eee eee eens 5

40 C.F.R. § 156.10(i( 2M Vi)... eee ee eee eee 5, 20

40 C.F.R. § 156.10(i(2M{vii) «6. eee eee eee eee 5, 20

40 CER. § 156.10) 2MX) ... eee eee e eee ee eres 5, 20

49 Fed. Reg. 37,960 (Sept. 26, 1984) .......-+--++> 5, 20

53 Fed. Reg. 15,952 (May 4, 1988) .....-----eeeereeee 4

60 Fed. Reg. 50,338 (Sept. 28, 1995) ....-.++eeeeeeeee 8

LEGISLATIVE HISTORY

S. Rep. No. 92-838, 92d Cong., 2d Sess. (1972),

reprinted in 1972 U.S.C.C.A.N. 3993 ....--++++++: 21

See S. Rep. No. 92-970, 92d Cong., 2d Sess. (1972),

reprinted in 1972 U.S.C.C.A.N. SE apovkent ea ees 23

MISCELLANEOUS

Stedman's Medical Dictionary (25th ed. 1990) .......--- 8

Michael K. Steenson & Peter B. Knapp,

Minnesota Practice (4% ed. 1999) .........4+0005: 25

PETITION FOR A WRIT OF CERTIORARI

Petitioner Kim Netland respectfully petitions this Court

for a writ of certiorari to review the decision of the United

States Court of Appeals for the Eighth Circuit.

OPINIONS BELOW

The Eighth Circuit’s opinion affirming the grant of

summary judgment to respondent is reported at 284 F.3d 895

(8" Cir. 2002), and is reproduced in the appendix at la. The

unreported order of the Eighth Circuit denying panel rehearing

and rehearing en banc is reproduced in the appendix at 24a.

The opinion of the United States District Court for the District

of Minnesota granting respondent’s motion for summary

judgment is reported at 140 F. Supp. 2d 1011 (D. Minn. 2001),

and is reproduced in the appendix at 1 1a.

JURISDICTION

The judgment of the Eighth Circuit was entered on

March 26, 2002. Petitioner filed a timely petition for rehearing

en banc on April 8, 2002, which the Eighth Circuit treated as a

petition for panel rehearing and for rehearing en banc and

denied on May 13, 2002. This Court has jurisdiction under 28

U.S.C. § 1254(1).

STATUTE INVOLVED

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 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.

STATEMENT OF THE CASE

Petitioner Kim Netland alleges that he has suffered

severe and permanent injuries from exposure to Bovinol, a

pesticide marketed by respondent Hess & Clark. The Eighth

Circuit held that, as a matter of federal law, petitioner is barred

from pursuing his Minnesota state-law product-liability claims.

Specifically, that court ruled that all of petitioner’s damages

claims are preempted by the Federal Insecticide, Fungicide, and

Rodenticide Act (“FIFRA”), a statute enacted to protect people

and the environment from pesticide hazards. As explained in

more detail below, this Court should grant review because the

federal and state courts are in conflict on the question presented

and because the Eighth Circuit’s decision is at odds with

FIFRA’s text and purpose.

Because an understanding of FIFRA is necessary to

evaluate the preemption issue, Part A describes the structure of

the Act. Part B explains the factual background of this case and

the decisions below.

A. The Structure Of FIFRA.

The Eighth Circuit ruled that FIFRA’s preemption

provision, 7 U.S.C. § 136v(b), preempts all of petitioner’s

damages claims. That provision can be construed properly only

in the context of FIFRA’s substantive requirements. FIFRA is

the federal component of a tripartite scheme in which pesticides

are regulated at the federal, state, and local levels. Wisconsin

Public Intervenor v. Mortier, 501 U.S. 597 (1990). 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

generally may not be sold or used in the United States without

an EPA registration. 7 U.S.C. § 136a(a). Although state and

local governments generally may not permit the sale or use of

any pesticide not registered with EPA, they may regulate or ban

outright the sale and use of a federally registered pesticide. 7

U.S.C. § 136v(a). For instance, Minnesota may restrict the use

of dichlorvos, the active pesticide ingredient at issue in this

case, or ban its use entirely. In this way, federal pesticide

regulation establishes a floor that may be exceeded by

additional state regulations. Moreover, FIFRA gives states the

lead role in enforcing pesticide use restrictions. 7 U.S.C. §

136w-l.

Unlike federal statutes governing cigarette and

smokeless tobacco labels, FIFRA does not mandate precise

wording for pesticide labels. Cf. 15 U.S.C. §§ 1333,

4402(a)(1). Nor do EPA’s regulations dictate any specific

language to be used for the majority of pesticide labels.’

Compare 21 C.FR. §§ 801.420, .430 (FDA regulations

demanding specific label warnings for particular medical

devices). Rather, as part of an application for a pesticide

IEPA 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.

registration, the manufacturer submits not only health and

environmental data, but also a draft label. 7 U.S.C.

§ 136a(c)(1)(C); 40 C.F.R. § 152.50(e). 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.

15,952, 15,956 (May 4, 1988).

EPA will register a pesticide if the manufacturer meets

FIFRA’s requirements. 40 C.F.R. § 152.112. The statute

requires that the pesticide’s composition warrant the claims —

made for it, that its labeling and other materials comply with

FIFRA’s requirements, that it will perform its intended function

without unreasonable adverse effects on the environment, and

that it will not generally cause unreasonable adverse effects on

the environment when used in accordance with widespread and

commonly recognized practice. 7 U.S.C. § 136a(c)(5)(A)-(D).

As to the product label, FIFRA and EPA establish

certain minimum requirements: 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, specific signal words 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); see supra note 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).

With respect to directions for use, FIFRA contains only

very general requirements: 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 US.C.

§ 136(q\(1)(F); 40 C.F.R. § 156.10(i(1)@). Thus, EPA

regulations provide that directions for use must specifically

identify the crops or animals to be treated, 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.” Id.

§ 156.10(i)(2)(iii),(iv),(vi),(vii), (x).

A registrant’s use of the label submitted with its

registration application 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

“(flor liability reasons, companies often voluntarily provide

additional information on the label, particularly in the area of

precautionary statements.” 49 Fed. Reg. 37,960, 37,971 (Sept.

26, 1984). Neither FIFRA nor EPA regulations prohibits the

inclusion of additional label information or warnings, provided

that the information does not violate any specific statutory or

regulatory requirement. Jd.

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)(1), 136j(a)(1)(E).

Thus, FIFRA anticipates that a manufacturer may have to make

labeling changes after registration of its product. FIFRA

provides that “[i]f the labeling or formulation for a pesticide is

changed, the registration shall be amended to reflect such

change if the Administrator determines that the change will not

violate any provision of this [Act].” 7 U.S.C. § 136a(f)(1). In

other words, the onus for deciding whether a label change is

necessary falls on the registrant, which must draft the revised

label and submit it to EPA for review. 40 C.F.R. § 152.44.

Although section 136v(b) preempts state “labeling or

packaging” requirements “in addition to or different from”

FIFRA requirements, the submitted labeling is limited to “the

written, printed, or graphic matter on, or attached to, the

pesticide or device 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. § 136(p)(1) & (2)(A). 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]Jewspapers, magazines, newsletters and other

material in circulation or available to the public; [b]roadcast

media such as radio and television; [t]elephone advertising; and

[billboards 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.

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 US.C. §§ 136(qX(1), 136j(a)(1)(©),

136j(a)(2)(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. § 136a(f)(2) (although if

no cancellation proceedings are in effect, registration is prima

facie evidence of compliance with FIFRA’s registration

provisions). 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) & 136k(b)(3); see also id. § 1361

(authorizing civil and criminal penalties for FIFRA violations).

FIFRA does not provide a remedy for individuals who

sustain injuries from pesticide use, and thus state-law damages

actions provide the only means of compensation for such

injuries.

B. Factual Background And Proceedings Below.

1. Kim Netland’s Injuries. In the summer of 1994,

petitioner Kim Netland was 17 years old and preparing to enter

his senior year in high school. That summer, petitioner sprayed

respondent’s pesticide, Bovinol, to control flies on his family’s

three horses. Petitioner’s mother, Margaret Netland, purchased

the Bovinol at a local feed store and gas station because she

wanted to minimize the risk of injury to her son from the

horses’ unpredictable behavior when they were annoyed by

flies. Mrs. Netland asked the sales clerk whether Bovinol

would work on horses, and he said that it would. Using a spray

bottle prepared by his mother, Kim sprayed Bovinol on his

horses three to four times per week for six weeks. He would

spray each horse with eight to 10 squirts and then ride one of

the horses. Kim did not wear any protective clothing or

equipment when he used the pesticide and did not read the label

(though his mother had read it when she prepared the spray

bottle). He believes that Bovinol got on his skin while riding

the horses because his clothes were damp after riding. See Pet.

App. 2a. He also inhaled the Bovinol spray. See, e.g., Dep. of

Harry S. Jacob, M.D., at 61, 67.

In mid-August 1994, Kim started high school football

practice and became very fatigued and began bruising easily.

On September 28, 1994, he collapsed on his way to school and

was taken to his family physician, who realized that he had a

severe blood problem and transferred him to a hematologist in

Fargo, North Dakota. The hematologist diagnosed Kim with

acquired aplastic anemia, a defective functioning of the bone

marrow in which the body fails to produce all types of blood

cells. Pet. App. 3a; see Stedman's Medical Dictionary 72 (25"

ed. 1990). Over the next year, Kim took large doses of steroids

and had approximately 35 blood transfusions. As a result of the

treatments, one of his hips had to be replaced with a prosthetic

hip and the other hip is at risk of failure. Pet. App. 3a.

2. Bovinol. Bovinol is registered with the EPA and its

label was approved by the EPA. Its active ingredient is

dichlorvos, an organophosphate whose purpose is to interfere

with neural transmission. Dichlorvos can be absorbed into the

human body by ingestion, by inhalation, and through the skin.

Pet. App. 3a. Despite its EPA registration, the dangers of

dichlorvos have not gone unnoticed. In 1988, the EPA notified

registrants that it was instituting a “special review” of

dichlorvos. Plaintiff's Statement of Material Disputed Facts,

35-36. In doing so, the agency stated that exposure to

dichlorvos may pose serious adverse health risks to individuals.

Id. 937. In 1995, the EPA preliminarily proposed to cancel use

of dichlorvos-containing products in all residential areas and to

prohibit all hand-held applications to farm livestock (except

poultry). Id. | 43; see 60 Fed. Reg. 50,338, 50,369 (Sept. 28,

1995). Numerous peer-reviewed articles link dichlorvos to

autoimmune disease, including aplastic anemia. See, e.g., Aff.

of Harry S. Jacob, M.D., 15 (listing and describing articles).

The Bovinol label indicates that the product may be

used on cattle, in animal buildings, including specifically horse

barns, and for certain outdoor uses (such as on picnic grounds,

refuse areas, and around service stations). The label does not

expressly state that Bovinol may be used on horses or that it

should not be used on horses, although it does state that it

should not be used on dogs. See Pet. App. 3a-4a.

3. Proceedings Below. On July 1, 1999, petitioner

filed a three-count complaint in the United States District Court

for the District of Minnesota alleging that respondent (1) was

strictly liable because Bovinol was defectively designed and

unreasonably dangerous, including specifically that it exposes

users unreasonably to immune system damage such as that

caused by aplastic anemia, Complaint, f¥ 12-13; (2) failed to

warn users of Bovinol’s dangerous characteristics, id. 4 15; and

(3) was negligent and breached its warranty that Bovinol was

safe for its ordinary purposes by failing to use reasonable care

in the design, manufacture, and sale of the product. Id. ¥ 18.

See generally Pet. App. 4a-Sa. The district court’s jurisdiction

was premised on diversity of citizenship under 28 U.S.C. §

1332(aX(1). Complaint, { 1.

In January 2001, respondent moved for summary

judgment, asserting that FIFRA preempts all of petitioner’s

state-law claims. Respondent also sought summary judgment

on the ground that petitioner had not offered proof of causation

linking Bovinol to his injuries and it simultaneously moved to

exclude the testimony of several of petitioner’s experts.

The district court granted respondent’s motion for

summary judgment solely on preemption grounds. Pet. App.

lla. The district court concluded that each of petitioner's

claims, even those based on defective design of the product, is

an attack on Bovinol’s labeling and thus preempted by FIFRA’s

preemption provision, 7 U.S.C. § 136v(b), which, as discussed

above, bars states from imposing certain types of pesticide

labeling and packaging requirements. See Pet. App. 19a-22a.

The Eighth Circuit affirmed. The court relied on its

prior decision in National Bank of Commerce v. Dow Chemical

Co., 165 F.3d 602 (8 Cir. 1999), which held that “FIFRA

preempts state common law claims for ‘inadequate labeling or

failure to warn.” Pet. App. 6a (quoting National Bank of

Commerce, 165 F.3d at 608). Petitioner acknowledged the

Eighth Circuit’s precedent, but urged the panel to reverse

course in light of this Court’s decision in Medtronic, Inc. v.

Lohr, 518 U.S. 470 (1996), the views of the United States on

the issue, and recent precedent from state appellate courts in

Montana and Oregon. The panel refused to consider those

arguments because of its rule that circuit precedent may only be

overruled by a decision of the full court sitting en banc. Pet.

App. 7a. The panel also held that petitioner’s design-defect

claim is preempted because it constitutes “an impermissible

challenge to the pesticide’s label.” Pet. App. 9a.

2The district court did not reach the causation and

admissibility issues. Petitioner’s experts testified that, given the

chronology of events, petitioner’s injuries, the medical literature

linking dichlorvos and other organophosphates with autoimmune

disease, including aplastic anemia, and the absence of other causal

explanations, the only plausible explanation for petitioner’s aplastic

anemia was his exposure to Bovinol. See, e.g., Aff. of Harry S.

Jacob, M.D., #f G.1- G.11; Aff. of Richard L. Lipsey, Ph.D., Fj 25-

27. Although respondent disagreed, these issues have never been

decided in this case; preemption was the only issue decided below

and is the only issue before this Court.

Petitioner sought rehearing en banc, asking the full court

to reconsider its prior FIFRA preemption holdings on the basis

of more recent precedent. The petition was denied on May 13,

2002.

REASONS FOR GRANTING THE WRIT

The petition should be granted for two reasons. First,

this Court should grant review to resolve conflicts in appellate

authority regarding the question presented: whether FIFRA

preempts state-law damages claims premised on 4a

manufacturer’s failure to warn of a pesticide’s hazards and on

defects in the pesticide’s design. Second, the majority of

decisions on the question presented, including the decision

below, have seriously erred in interpreting FIFRA and its

preemption provision, and have thereby eliminated injured —

persons’ rights to compensation under state law contrary to

Congressional intent.

A. This Court Should Resolve The Conflicts In

Appellate Authority On The Question Presented.

1. Petitioner acknowledges that a large majority of

FIFRA preemption decisions, including decisions of most of the

federal circuit courts, hold that state damages actions are among

the "requirements" within the preemptive reach of 7 U.S.C. §

136v(b). See, e.g., Taylor Ag Industries v. Pure-Gro, 54 F.3d

555 (9th Cir. 1995); Worm v. American Cyanamid Co., 970

F.2d 1301 (4th Cir. 1992); Pet. App. 6a (citing Eighth Circuit

decisions to that effect). Those decisions also hold that

damages actions alleging that the defendant failed to warn of a

pesticide’s dangers are preempted by 7 U.S.C. § 136v(b), under

which states are prohibited from issuing certain “requirements”

concerning pesticide “labeling or packaging” that are “in

addition to or different from” FIFRA requirements.

Several decisions, however, directly conflict with the

majority view, and hold that state damages actions are not

“requirements” within the meaning of section 136v(b). Those

rulings include the early decision of the District of Columbia

Circuit in Ferebee v. Chevron Chemical Co., 736 F.2d 1529

(D.C. Cir. 1984), and the relatively recent decisions of the

Montana Supreme Court in Sleath v. West Mont Home Health

Services, Inc., 16 P.3d 1042 (Mont. 2000), cert. denied sub

nom., Dow AgroSciences LLC v. Sleath, 122 S. Ct. 40 (2001),

and the Oregon Court of Appeals in Brown v. Chas. H. Lilly

Co., 985 P.2d 846 (Or. App. 1999), rev. denied, 6 P.3d 1098

(Or. 2000). In addition, the California Court of Appeal held in

1998 that FIFRA does not expressly preempt state-law damages

actions. Etcheverry v. Tri-Ag Services, Inc., 76 Cal. Rptr.2d

466 (Cal. App. 3d Dist. 1998). Although the California

Supreme Court reversed that decision, it did so by a narrow

four-to-three margin, over two forceful dissents. See

Etcheverry v. Tri-Ag Services, Inc., 993 P.2d 366 (Cal. 2000).

Petitioner believes that the minority position better comports

with the text of section 136v, the structure of FIFRA, and

Congressional intent. See Part B infra. For present purposes,

however, the question is not which position is correct, but that

there is a division among the courts under which state-law

damages claims may (or may not) go forward based solely on

geographical happenstance. This Court should grant certiorari

to establish uniformity on the question presented.

In Sleath, this Court denied review despite the clear conflict

in appellate authority. However, as the respondent in Sleath had

argued, the Montana state courts had not issued a “final judgment”

and thus this Court did not have jurisdiction under 28 U.S.C. §

1257(a). See Respondent’s Brief in Opposition, at 3-11, in Dow

AgroSciences LLC, et al. v. Sleath, et al., No. 00-1674 (U.S. filed

July 3, 2001).

The need for review is underscored by the position taken

by the EPA, which has stated that section 136v(b) does not

preempt any state-law damages action. The agency has filed

amicus curiae briefs in private appellate litigation to express its

concern that the courts have misinterpreted federal law and

regulations and FIFRA’s legislative history. The agency’s most

comprehensive brief — signed by the EPA’s general counsel as

well as by an Assistant Attorney General — was filed in the

Etcheverry litigation in California, in which the Justice

Department also presented oral argument. See Brief Amicus

Curiae for the United States in Support of Plaintiffs-Appellants,

in Etcheverry v. Tri-Ag Service, Inc., No. $072524 (Cal. S. Ct.

filed March 1999) (hereafter “U.S. Etcheverry Br.”). Copies of

that brief have been lodged with this Court, as have copies of

the EPA/Justice Department brief in a case from the Fifth

Circuit, which takes the same position. See Brief Amicus

Curiae for the United States in Support of Appellants in Hart

v. Bayer Corp., No. 98-60496 (Sth Cir. filed March 1999).

The EPA’s Etcheverry brief explains why the text,

structure, and history of FIFRA do not support preemption of

state damages claims and why the EPA has an interest in

assuring that the courts do not undermine the ability of state tort

systems to provide compensation to growers whose crops have

been damaged by pesticides and individuals who have sustained

personal injuries from pesticides. U.S. Etcheverry Br. at 8-33.

The United States summarized its views as follows:

While the term “requirements” may encompass

common law duties in some contexts, the text,

legislative history, and purposes of FIFRA

demonstrate that Congress had no intent that the

use of the term “requirements” in section

136v(b) would extinguish state law damages

actions. When section 136v(b) was enacted in

1972, state law actions against pesticide

manufacturers for failure to warn were a

commonplace and uncontroversial feature of the

legal landscape. No evidence from the text or

legislative history of FIFRA suggests that

Congress had any intent to extinguish those

actions or that Congress even considered doing

so. Indeed, Congress amended FIFRA in 1972

out of increasing concern for human health and

the environmental effects of pesticides such as

DDT. Given that FIFRA establishes no private

damages remedy for those injured by pesticides,

it would be astonishing that, without any

discussion, Congress would have intended to

deprive injured persons of all means of relief.

Id. at 5-6.

The EPA’s position is important because this Court has

sometimes given weight to an agency’s views of the preemptive

scope of the statute that it is charged with implementing, both

as expressed in agency regulations, see Medtronic, 518 U.S. at

496-97; id. at 505-06 (opinion of Breyer, J.); Hillsborough

County v. Automated Medical Laboratories, Inc., 471 U.S. 707,

714-15 (1985), and in the form of briefs filed in private

litigation. See Geier v. American Honda Motor Co., Inc., 529

U.S. 861, 883 (2000); American Airlines, Inc. v. Wolens, 513

U.S. 220, 232-34 (1995). The EPA’s position is not, of course,

dispositive on the merits and should only be accorded the

weight that its persuasive power deserves, but it provides a

further compelling reason to grant review. The majority view

in the lower courts effectively abrogates traditional state

damages remedies based on an interpretation of a federal statute

that is flatly at odds with the interpretation of the agency

authorized by Congress to enforce that statute. That situation

should not persist without this Court’s blessing.

2. The courts are also in tension with one another over

the scope of FIFRA preemption regarding state-law damages

claims premised on duties other than a failure to warn, such as

design defect, manufacturing defect, and breach of warranty.

Those kinds of claims allege that the pesticide product itself is

defective in some way — for instance, that it is unreasonably

dangerous because its risks outweigh its benefits or because

safer and more effective alternative prod icts were available.

Under those theories of liability, the fact that the pesticide was

marketed in a defective condition requires the manufacturer to

compensate people injured by it, whether or not the product was

accompanied by the appropriate warnings. The courts generally

have recognized that such claims are not preempted by FIFRA

because 7 U.S.C. § 136v(b) concerns only the “labeling or

packaging” of pesticides. See, ¢.g,, National Bank of

Commerce v. Dow Chemical Co., 165 F.3d 602, 609 (8" Cir.

1999) (“defectively manufactured or designed products properly

labeled under FIFRA may still be subject to state regulation in

the form of common law or other claims”); Grenier v. Vermont

Log Bldgs., Inc., 96 F.3d 559, 564 (1* Cir. 1996) (FIFRA does

not expressly preempt design and manufacturing claims); Worm

v. American Cyanamid Co., 970 F.2d 1301, 1307 (4" Cir. 1992)

(FIFRA does not preempt “state-imposed standard of care

relating to product design, manufacture, testing, and the like”);

Ackerman v. American Cyanamid Co., 586 N.W.2d 208, 215

(Iowa 1998) (FIFRA does not preempt negligent design and

testing claims); Eide v. E.J. Du Pont De Nemours & Co., 542

N.W.2d 769, 772 (S.D. 1996) (FIFRA does not preempt

defective design, manufacture, and production claims).

Courts have nevertheless held some claims preempted,

even if pleaded as defect claims, on the ground that they are

“disguised” failure-to-warn claims that, in effect, challenge the

warnings on the product label. See, e.g., Grenier, 96 F.3d at

565 (referring to manufacturing and design defect claim as

“disguised labeling claim”); Worm v. American Cyanimid Co.,

5 F.3d 744, 747-48 (4% Cir. 1993); Pfeifer v. E.I. Du Pont de

Nemours and Co., 606 N.W.2d 773, 778 (Neb.), cert.

dismissed, 530 U.S. 1300 (2000); Pet. App. 8a. In applying that

standard, a number of courts, including the Eighth Circuit

below, have asked “whether in seeking to avoid liability for any

error, would the manufacturer choose to alter the label or the

product.” Pet. App. 8a (citing Worm, 5 F.3d at 747-48); see

also, e.g., Andrus v. AgrEvo USA Co., 178 F.3d 395, 399 (5™

Cir. 1999); Didier v. Drexel Chemical Co., 938 P.2d 364, 369

(Wash App. 1997) (“the test for preemption is whether a

manufacturer, in seeking to avoid liability, would reasonably

choose to alter the product or the label”).

That is not the proper preemption inquiry for two related

reasons. First, when a plaintiff seeks recovery on a product-

defect theory, there is no preemption under the plain language

of 7 U.S.C. § 136v(b), and the question whether liability should

be imposed is solely a matter of state law. For instance,

petitioner’s first claim for relief alleges that Bovinol “was

defectively designed and unreasonably dangerous for its use, in

that it exposes users to a foreseeable risk of permanently

damaging the user’s immune system, including exposing the

user to acquiring aplastic anemia.” Complaint, { 12. That

allegation, which has nothing to do with whether the product

was accompanied by appropriate warnings, poses a question

solely under state law; it does not raise a preemption issue

because it does not challenge the product’s “labeling or

packaging.” Second, the question whether the defendant

manufacturer would or would not choose to change its label is

irrelevant to the preemption question. To be sure, in response

to a jury finding that a pesticide was defectively designed, the

manufacturer might include additional warnings on its label,

rather than modifying or ceasing to sell the product (or doing

nothing at all), but that does not alter the nature of the

plaintiffs claim or the basis of the jury’s decision. Both are

based solely on the product’s defective design.‘

In contrast to courts that ask- whether the defendant

would alter its label in response to a finding of liability, other

courts look to the underlying nature of the plaintiff's claims and

hold that allegations of liability on bases other than a failure to

warn are not preempted by FIFRA, without asking how the

defendant might react to a jury verdict in favor of the plaintiff.

See, e.g., National Bank of Commerce, 165 F.3d at 609;

Ackerman, 586 N.W.2d at 214 (noting the Worm test, but

allowing design and testing claims to go forward if they

challenge the production of the production and not its labeling);

Eide, 542 N.W.2d at 772; Higgins v. Monsanto Co., 862

F.Supp. 751, 757-60 (N.D.N.Y. 1994). A grant of review

‘For this reason, the Eighth Circuit’s reliance on the

testimony of one of petitioner’s experts that Bovinol could have been

used safely if the label warnings had been appropriate, Pet. App. 9a,

is irrelevant to the preemption question, even though it might be

relevant as a matter of state law to at least some of petitioner's

claims. That same expert also repeatedly stated that the product was

defective, in particular because safer and more effective products

were available. Dep. of Richard L. Lipsey, Ph.D, at 257-61; see also

Aff. of Richard L. Lipsey, Ph.D., § 20 (noting that because of

dangers of dichlorvos his former company had substituted “more

effective and safer pesticide chemicals for the Dichlorvos”). That

testimony underscores the fact that petitioner's design-defect claim

is not a “disguised” attack on the product’s label, see Pet. App. 8a,

but rather is a claim that the product should not have been marketed

at all.

would resolve this confusion in the case law as well.°

B. The Decision Below Incorrectly Construes The

Scope Of Preemption Under FIFRA.

1. The decision below, like the decisions of most other

courts to have addressed the scope of FIFRA preemption, is

flawed because it erroneously holds that FIFRA’s express

preemption provision applies to state-law damages claims. The

courts that have found preemption of damages claims under 7

U.S.C. § 136v(b) have relied almost exclusively on a rote

application of this Court’s decision in Cipollone v. Liggett

Group, Inc., 505 U.S. 504 (1992). Cipollone held that the word

“requirement,” as used in the preemption provision of the

Public Health Cigarette Smoking Act of 1969, could include

common-law claims for damages, including claims for failure

to warn. 505 U.S. at 520-24. The courts have erroneously

‘The appellate courts are also divided on a related FIFRA

preemption question: whether FIFRA preempts a pesticide user’s

state-law failure-to-warn claim that the product was not effective for

its intended use, e.g., a claim by a farmer alleging that a FIFRA-

registered pesticide’s ineffectiveness resulted in crop damage.

Compare American Cyanamid Company v. Geye,__ S.W.3d __.,

2002 WL 1448843 (Tex. June 6, 2002) (no preemption of crop-

damage claims because EPA does not review product labels for

efficacy and noting conflict); Kawamata Farms v. United Agri

Prods., 948 P.2d 1055, 1076-77 (Haw. 1997) (some such claims not

preempted and citing other authority), with Etcheverry, 993 P.2d 366

(crop-damage claims preempted); Taylor Ag Industries v. Pure-Gro,

54 F.3d 555 (9th Cir. 1995) (same); see also U.S. Etcheverry Br. at

33-42 (explaining that efficacy claims are not preempted by FIFRA

because, among other reasons, EPA does not conduct efficacy review

for pesticides). A grant of certiorari here would, if resolved in

petitioner’s favor, necessarily resolve the conflict in the crop-damage

cases.

concluded that this holding — concerning the use of a particular

word in one statute enacted by Congress in 1969 — necessarily

means that “requirement” as used by Congress in 1972 in

FIFRA’s preemption provision reaches common-law damages

claims. A fair reading of FIFRA’s preemption provision,

however, reveals that Congress did not intend preemption of

damages claims at all. See US. Etcheverry Br. at 9

(acknowledging that in some contexts “‘requirements’ may

encompass obligations imposed through common law damages

actions[,]” and explaining that the “text, legislative history, and

purposes of FIFRA demonstrate, however, that, as it is used in

section 136v(b), the term ‘requirements’. means direct

commands imposed by law regarding the contents of labels

[and] does not include state damages actions”); see also Lee v.

Madigan, 358 U.S. 228, 231 (1959) (“Only mischief can result

if those terms [appearing in different statutes] are given one

meaning regardless of the statutory context.”).

In Cipollone, the statute at issue set forth the specific

warning to be included on each label, that is, Congress itself

drafted the required warning language. See 15 U.S.C. § 1333

(stating exact warnings to appear on cigarette packages and

advertisements). It was Congress’ very specific and unusual

action — and only that specific action — that the preemption

provision sought to protect from conflicting state regulation.

Congress had dictated the warnings, and thus the Act preempted

challenges to the adequacy of those warnings.

By contrast, with regard to preemption under FIFRA,

petitioner’s common-law claims in no way challenge a

congressional determination, or even an agency determination,

that the label should state certain cautionary language and no

other. Quite the contrary, the label is drafted by the registrant,

i.e., the pesticide manufacturer. Although FIFRA specifies

warning “signal words” and precautionary statements for certain

toxicity categories, those warnings have nothing to do with the

types of warnings that might have prevented petitioner’s -

injuries here: for instance, that the product not be used on

horses or that it not be applied with a spray bottle. And even

where specific warnings are required, pesticide manufacturers

must include additional warnings or cautionary statements on

the labels as are needed to adequately protect health and the

environment. 7 U.S.C. § 136(q\(1)(F), (G); 40 C.F.R. §§

156.10(a)(1); 156.10(i)(1)(i). Whether or not one of the

specific toxicity warnings is required, the label must state "[a]ny

limitations or restrictions on use to prevent unreasonable

adverse effects." 40 C.F.R. § 156.10(i)(2)(x). FIFRA places

full responsibility on the manufacturer to provide adequate

warnings and directions for use on its product’s label. 7 U.S.C.

§ 136a(c)(5). FIFRA prescribes only general requirements for

pesticide labels and leaves it to the manufacturer to devise a

label that will adequately protect against adverse effects,

including damage to people, animals, and crops. Jd. §§ 136(),

136a(c)(5); 40 C.F.R. § 156.10(i)(2)(iii),(vi),(vii),(x). If a

registrant learns of inadequacies in the label after the EPA has

registered its pesticide, the registrant must promptly inform the

EPA of the inadequacies and revise its label to provide adequate

warnings and directions for use. 7 U.S.C. § 136a(f)(1).

Accordingly, respondent was not only free at any time to

provide information to purchasers and users that would have

enabled petitioner to avoid injury, it was obligated under FIFRA

to do so.

Indeed, one manifestation of FIFRA’s registrant-driven

scheme of labeling, as EPA has acknowledged, is that, “[flor

liability reasons, companies often voluntarily provide additional

information on the label, particularly in the area of

precautionary statements.” 49 Fed. Reg. 37,960, 37,971 (Sept.

26, 1984). The understanding that the federal regulatory system

and state-law tort compensation would co-exist makes sense in

the FIFRA context where registrants draft pesticide labels and

are subject to general, continuing duties to provide adequate

warnings.

2. The legislative history of the provision at issue in

Cipollone and the one at issue here also differ dramatically. In

Cipollone, the Court focused on a comparison of the 1969

preemption provision with its predecessor from the 1965

Cigarette Act. 505 U.S. at 520-23. Whereas the 1965 version

preempted only “statements,” the 1969 version preempted

“requirements or prohibitions.” The Court determined that the

change in language must have some significance, and, on that

basis, found that common-law claims could come within the

scope of the preemption provision of the 1969 Act. 505 U.S. at

522-23. The Court’s opinion makes clear that the dispositive

factor was the contrast between the 1965 and 1969 provisions,

not simply the use of the word “requirement” in the 1969

provision. Indeed, although the 1965 Act preempted any

“statement relating to smoking and health . . . required” in

cigarette advertising, the Court held that it did not preempt any

common-law claims. /d. at 518-20.

Here, in contrast, the legislative history of FIFRA

provides no evidence that Congress intended to preempt state

damages actions. Aside from technical changes, section

136v(b) has not been amended since its enactment in 1972 and

nothing analogous to the interpretive guide provided by the

amendments to the 1965 Cigarette Act is present in the history

of section 136v(b). Furthermore, FIFRA’s extensive legislative

history does not mention preemption of state damages claims.

See, e.g., S. Rep. No. 92-838, 92d Cong., 2d Sess. (1972),

reprinted in 1972 U.S.C.C.AN. 3993; see also U.S. Etcheverry

Br. at 22-31 (explaining that FIFRA’s legislative history

involving 25 days of hearings and numerous committee reports

does not even hint at intent to preempt any state damages

actions). As the United States has noted, the conclusion that

Congress did not enact “tort reform” in 1972 is underscored by

the fact that, in nearly a century of case law prior to FIFRA’s

passage, the courts uniformly held that pesticide manufacturers

had a duty to warn under state law. Jd. at 19-22.

3. Another fundamental problem with the lower courts’

FIFRA preemption analyses premised on Cipollone is that they

overlook the placement of subsection 136v(b). That provision

is part of a section entitled “Authority of States,” which —

with an anti-preemption clause:

A State may regulate the sale or use of any

federally registered pesticide or device in the

State, but only to the extent the regulation does

not permit any sale or use prohibited by this

subchapter.

7 U.S.C. § 136v(a). The preemption clause, which follows

immediately, 7 U.S.C. § 136v(b), begins with the words “Such

State,” thus tying the preemption provision to the activities of

the state discussed in section 136v(a), quoted above. Section

136v(a) addresses states’ general authority to “regulate” the sale

and use of pesticides, not the states’ authority to award

compensation through damages remedies. As this Court has

stated, the use of the word “regulate” refers not to common-law

damages remedies, but rather to positive-law enactments of

legislative and regulatory bodies. See Cipollone, 505 U.S. at

519, 523 (in 1965 Cigarette Act, “‘regulation’ most naturally

refers to positive enactments” of legislatures and agencies, “not

to common-law damages actions”). It follows, therefore, from

the structure and wording of section 136v, that subsection (b)

also does not encompass damages liability because it refers to

states only in their regulatory, not adjudicatory, capacity.

This conclusion is consistent with other decisions of this

Court, which have noted that Congress can, and does, rationally

distinguish state positive law and common law, preempting the

former but not the latter. See Cipollone, 505 U.S. at 518 (“there

is no general, inherent conflict between [express] federal

preemption of state [regulatory] warning requirements and the

continued vitality of state common-law damages actions”);

Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 185-86 (1988)

(“The effects of direct regulation ... are significantly more

intrusive than the incidental effects of such an award provision.

...Congress may reasonably determine that incidental regulatory

pressure is acceptable, whereas direct regulatory authority is

not.”); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256

(1984) (despite federal preemption of state regulatory authority,

state-law punitive damages awards not preempted even though

“regulatory in the sense that a nuclear plant will be threatened

with damages liability if it does not conform to state

standards”).

US.C.C.AN. 4092, 4111-12 (“Local governments could,

however, prohibit or restrict the sale or use of pesticides within

their jurisdiction.”). Indeed, states have done so. See, ¢.g.,

Iowa Code Ann. § 206.32 (banning sale, purchase, application,

and use of chlordane); Md. Agric. Code § 5-210.5 (restricting

use of various pesticides). A state could require that pesticide

manufacturers submit results of safety and efficacy testing to a

state environmental agency. Or a state could require that

pesticide manufacturers include warnings about risks to people

or the environment in any advertising within that state.

Indeed, a state could require that manufacturers, as a

condition to marketing in that state, compensate consumers for

damage to people, land, or crops caused by their products. The

state could do so without imposing any requirement on product

labels. Such a requirement would reflect a state’s decision that,

' “if it must abide by EPA’s determination that a label is

adequate, [the state] will nonetheless require manufacturers to

bear the risk of any injuries that could have been prevented had

[the state] been allowed to require a more detailed label or had

[the company] persuaded EPA that a more comprehensive label

was needed.” Ferebee, 736 F.2d at 1541. Or the state might

decide, based on the principle of strict liability, that

manufacturers should be held liable for damage caused by their

products, without regard to fault. Under either rationale, a

plaintiff's verdict would not require the manufacturer to change

its label. It would only require, consistent with subsection (a)’s

grant of authority to states to regulate pesticide “use,” that the

manufacturer pay damages associated with the use of its

product. The federal labeling requirements and the state use

requirement would not conflict, and the state requirement would

not run afoul of section 136v(b)’s proscription against “any

requirements for labeling or packaging in addition to or

different from those required” under FIFRA.

4. Even if it could be said that the state-law

“requirements” referred to in section 136v(b) encompass duties

that give rise to liability for damages, section 136v(b) would not

preempt petitioner’s claims because those claims would not be

based on duties in addition to or different from the duties

imposed by FIFRA. As discussed above, FIFRA requires

pesticide registrants to ensure that their labels and directions for

use are adequate to protect against unreasonable adverse effects

to health and the environment. 7 U.S.C. § 136a(c)(5).

Pesticides that lack adequate warning labels are misbranded,

even if EPA has approved the label. Jd. §§ 136(q)(1)(G),

136a(f)(2).

Petitioner alleges that respondent “failed to adequately

warn the user of the dangerous characteristics” of Bovinol.

Complaint, 15. Minnesota common law requires that sellers

provide adequate instructions for safe use and warn of dangers

inherent in improper use of the product. See, e.g., Frey v.

Montgomery Ward & Co., 258 N.W. 2d 782, 787 (Minn. 1977);

see also 4A Michael K. Steenson & Peter B. Knapp, Minnesota

Practice, CIVJIG 75.25, at 126-34 (4" ed. 1999) (standard jury

instruction on duty to warn). The common-law duties on which

those allegations were based thus mimic the manufacturer’s

duties under FIFRA, which places the burden of testing,

identifying, and labeling as to risks to people and the

environment on the registrant. To the extent that the claims

alleged here are based on duties that parallel requirements

imposed under FIFRA, see Medtronic, 518 USS. at 496-97, they

are not “in addition to or different from” FIFRA’s requirements

and, thus, are not preempted.

This conclusion is consistent with the Court’s analysis

in Medtronic. Looking to the general language of the

preemption provision of the federal Medical Device

Amendments (“MDA”), 21 U.S.C. § 360k(a) — which is

similar to the language of 7 U.S.C. § 136v(b) — the Court

identified an “overarching concer that pre-emption occur only

where a particular state requirement threatens to interfere with

a specific federal interest.” Medtronic, 518 U.S. at 500. More

specifically, in considering negligent manufacturing and failure-

to-warn claims, Medtronic made “a careful comparison between

the allegedly pre-empting federal requirement and the allegedly

pre-empted state requirement to determine whether they fall

within the intended pre-emptive scope of the statute and

regulations.” Jd. at 500. The Court concluded that the federal

manufacturing and labeling requirements were “important but

entirely generic” regulatory concerns, not the type of concerns

that section 360k(a) was designed to protect from potentially

contradictory state requirements. Similarly, the state common-

law duties at issue in Medtronic were general duties, not

developed specifically with respect to devices. Thus, the Court

found that those duties were not the kind of requirements that

Congress or the FDA feared might impede the FDA’s

implementation and enforcement of the MDA. Id. at 500-01.

Like the good manufacturing requirements and general

labeling requirements at issue in Medtronic, FIFRA’s labeling

requirements are general. (Indeed, the FDA’s good

manufacturing requirements are more comprehensive than the

EPA’s labeling regulations, see 21 C.F.R. Part 820, yet

Medtronic found that the MDA did not preempt manufacturing

claims.) The registrant, not the EPA, devises a label in

accordance with FIFRA’s general standards. And, as noted

earlier, in contrast to the statutorily prescribed warnings of the

1969 Cigarette Act, see Cipollone 505 U.S. at 508, pesticide

registrants are obliged under FIFRA to update their labels to

protect against adverse health and environmental effects. See

7 U.S.C. § 136d(a)(2).

5. Even if section 136v(b) preempts common-law

claims challenging the adequacy of a pesticide’s label, it does

not preempt failure-to-warn claims based on the theory that a

defendant should have warned through means other than

labeling. This conclusion follows directly from the language of

section 136v(b), which only preempts state requirements “for

labeling or packaging,” and from the Court’s ruling in

Cipollone.

The 1969 Act at issue in Cipollone preempted state-law

requirements “with respect to advertising or promotion.” 15

U.S.C. § 1334(b). Cipollone held that, although the 1969 Act

preempts failure-to-warn claims based on advertising or

promotion, claims based on the theory that the defendants

should have warned through other means were not preempted.

505 U.S. at 524-25 (failure-to-warn claim not preempted to

extent based on “actions unrelated to advertising or

promotion”).

Under FIFRA, “labeling” does not include oral

statements, point-of-sale signs or pamphlets, or advertising and

promotional material. See 7 U.S.C. § 136(p) (defining “label”

and “labeling”).° Thus, consistent with Cipollone, petitioner’s

claims cannot be preempted to the extent that they challenge

respondent’s failure to advise about the risks of Bovinol

7 U.S.C. § 136(p), provides in full:

Label and labeling.—

(1) Label.—The term "label" means the written, printed, or

graphic matter on, or attached to, the pesticide or device or any of its

containers or wrappers.

(2) Labeling —The term "labeling" means all labels and all

other written, printed, or graphic matter—

(A) accompanying the pesticide or device at any time; or

(B) to which reference is made on the label or in literature

accompanying the pesticide or device, except to current official

publications of the Environmental Protection Agency, the United

State Departments of Agriculture and Interior, the Department of

Health and Human Services, State experiment stations, State

agricultural colleges, and other similar Federal or State institutions

or agencies authorized by law to conduct research in the field of

through non-label means. That conclusion is consistent with

decisions of two circuits that have held that even direct state

regulation of communications by pesticide manufacturers are

not preempted by section 136v(b) where the state regulations

affirmatively require communications by means other than

labeling. See Chemical Specialties Manufacturers Ass'n v.

Allenby, 958 F.2d 941, 946 (9" Cir.) (“labeling” under FIFRA

does not include point-of-sale signs required under California's

Proposition 65), cert. denied, 506 U.S. 825 (1992); New York

State Pesticide Coalition v. Jorling, 874 F.2d 115, 119 (2d Cir.

1989) (“labeling” under FIFRA does not include posting of

signs to warn of impending use of dangerous chemicals,

required by New York law). Contra Papas v. Upjohn Co., 985

F.2d 516, 519 (11" Cir. 1993). The decision below is erroneous

for this reason as well.’

CONCLUSION

For the reasons stated above, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

Brian Wolfman

(Counsel of Record)

Allison M. Zieve

Scott L. Nelson

Public Citizen Litigation Group

1600 20" Street, N.W.

Washington, D.C. 20009

(202) 588-1000

"For the reasons stated above (at 16-17), the court below also

erred in granting summary judgment as to petitioner’s product-defect

claims.

August 9, 2002

Robert J. Feigh

Christopher W. Harmoning

Gray, Plant, Mooty, Mooty

& Bennett, P.A.

1010 West St. Germain, Suite 600

St. Cloud, MN 56301

(320) 252-4414

Attorneys for Petitioners

United States Court of Appeals

for the Eighth Circuit

No. 01-2182

Kim Netland,

Appellant,

Hess & Clark, Inc.,

Appellee.

Appeal from the United States

District Court for.the

- District of Minnesota.

Submitted: December 14, 2001

- Filed: March 26, 2002

Before McMILLIAN, JOHN R. GIBSON, and MAGILL,

Circuit Judges.

MAGILL, Circuit Judge.

Kim Netland brings this action against Hess & Clark,

Inc. (“Hess”), the manufacturer of the pesticide KenAg Bovinol

(“Bovinol”), claiming damages for injury resulting from

Netland’s use of Bovinol on his horses. The district court!

granted Hess’s motion for summary judgment holding that

Netland’s claims are preempted by the Federal Insecticide,

Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 et

seq,, because they are an impermissible challenge to Bovinol’s

label. For the reasons stated below, we affirm.

Netland, in the summer of 1994, following his junior

year of high school, used Bovinol to control flies on his

family’s three horses. Margaret Netland, Netland’s mother,

purchased the pesticide in June 1994, from a local retail feed

store for the purpose of minimizing the risk of injury to Netland

from the unpredictable behavior of horses due to the annoyance

of flies. The sales clerk informed Mrs. Netland that the

pesticide would work for horses. Prior to giving Netland the

pesticide, Mrs. Netland read the warning label and wore plastic

gloves to pour the pesticide into a bathroom cleaner spray

bottle. Thereafter, Netland sprayed the pesticide on his horses

three to four times a week over a six-week period. Prior to

riding, Netland sprayed each horse with eight to ten squirts of

the pesticide and would normally ride the horse within a minute

after spraying it with the pesticide. Netland did not wear any

protective clothing or equipment when he used the pesticide

and did not read the Bovinol label. Netland believes that he got

the pesticide on his skin by touching the horses because his

clothes were damp after riding.

\'The Honorable Ann D. Montgomery, United States

District Judge for the District of Minnesota.

In mid-August 1994, Netland began high school football

practice and began to experience fatigue and bruising. On

September 28, 1994, Netland collapsed on his way to school

and was taken to his family physician, Dr. Thabes. Realizing

that Netland had a severe blood problem, Dr. Thabes transferred

Netland to a hematologist in Fargo, North Dakota, where he

was diagnosed with acquired aplastic anemia.” Over the next

year, Netland’s treatment consisted of large doses of steroids

and approximately thirty-five blood transfusions. As a result of

this treatment, one of Netland’s hips failed and was replaced

with a prosthesis. Netland’s other hip is also at risk.

Bovinol is a registered insecticide with the

Environmental Protection Agency (“EPA”) under FIFRA and

carries an EPA-approved label. Dichlorvos (“DDVP”), the

active ingredient in Bovinol, is an organophosphate, which is

absorbed into the human body by ingestion, inhalation, and skin

absorption. The Bovinol label describes the approved and

lawful uses of the pesticide, including use on cattle, in animal

buildings (horse barns, shelter sheds, dairy barns, milk sheds),

in poultry houses, dog kennels, and outdoor uses (picnic

grounds, loading docks, outdoor latrines, parking areas, refuse

areas, around service stations, open-air drive-ins, outdoor ice

cream stands, and garbage collection and disposal areas). The

label does not expressly state that Bovinol may be used on

horses. The Bovinol label also contains a precautionary

2 Aplastic anemia is an anemia characterized by defective

function of the bone marrow, such that there is a failure to

properly form all types of blood cells.

ty be eR NERY tre Pr

instruction and warning.’

On July 1, 1999, Netland filed a three-count complaint

against Hess alleging (1) strict liability in that Bovinol was

*Specifically, the warning contained on the Bovinol

label states:

PRECAUTIONARY STATEMENTS

HAZARDOUS TO HUMANS

AND DOMESTIC ANIMALS

WARNING

May be fatal if swallowed, inhaled or absorbed

through the skin or eyes. Rapidly absorbed

through skin and eyes. Do not get into eyes, on

skin or on clothing. Do not breathe vapor or

spray mist. Wash thoroughly with soap and

water after handling and before eating or

smoking. Do not contaminate feed, water,

foodstuffs, milk or milking utensils. Wear clean

natural rubber gloves, protective clothing, and

goggles, faceshield or equivalent. Wear a

pesticide respirator jointly approved by the

Mining Enforcement and Safety Administration

(MESA) and the National Institute for

Occupational Safety and Health (NIOSH) under

the provisions of 30 CFR Part 11. Wear

impervious footwear or protective covers as

shoes, boots and other articles made of leather

or similar porous materials may be dangerously

contaminated.

defectively designed and unreasonably dangerous, (2) failure to

warn users of the dangerous characteristics inherent in the

Bovinol product, and (3) negligence and breach of warranty in

that Hess failed to use reasonable care in the design,

manufacture, and sale of Bovinol. On January 19, 2001, Hess

moved for summary judgment asserting federal preemption

under FIFRA and also that Netland failed to offer admissible

proof of causation. Hess also filed a motion to exclude the

opinion testimony of several of Netland’s expert witnesses.

The district court granted Hess’s motion for summary

judgment without reaching the issue of causation or the

admissibility of the testimony of Netland’s expert witnesses. In

particular, the district court found that each of Netland’s claims

is essentially an attack on Bovinol’s EPA-approved label, and

therefore is preempted by FIFRA. Netland v, Hess & Clark,

Inc., 140 F. Supp. 2d 1011, 1017-19 (D. Minn. 2001). Netland

timely appealed.

Il.

A grant of summary judgment is reviewed de novo.

Nat’] Bank of Commerce v, Dow Chem. Co,, 165 F.3d 602, 606

(8th Cir. 1999). Summary judgment is appropriate if, after

viewing the facts and all reasonable inferences in the light most

favorable to the nonmoving party, here Netland, the record

demonstrates that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a

matter of law. Id, See also Fed. R. Civ. P. 56(c); Celotex Corp.

v. Catrett, 477 U.S. 317, 322-23 (1986). In addition, preemption

is a question of law reviewed de novo. Nat’] Bank, 165 F.3d at

607.

Under FIFRA, all pesticides sold in the United States

must be registered with the EPA. See 7 U.S.C. § 136a(a)

(1994). When applying for registration, manufacturers must

submit draft label language addressing a number of topics

including ingredients, directions for use, and any information of

which they “are aware regarding unreasonable adverse effects

of the pesticide on man or the environment.” 40 C.F.R. §

152.50(f)(3) (2001). Prior to registering a pesticide, the EPA

must find that its labeling complies with FIFRA’s requirements,

such as a determination that the pesticide is not misbranded,

and that when the pesticide is used in accordance with its

labeling that it will perform its intended function without and

unreasonable adverse effect on the environment. See 7 U.S.C.

§ 136a(c)(5) (1994). Finally, FIFRA contains an express.

preemption clause, which provides that a state “shall not

impose or continue in effect any requirements for labeling . . .

in addition to or different from those required under this

subchapter.” 7 U.S.C. § 136v(b) (1994).

In National Bank, we held that once a label is approved,

FIFRA expressly provides a defense, arising from preemption,

against certain state law claims. 165 F.3d at 608. Specifically,

we held that FIFRA preempts state common law claims for

“inadequate labeling or failure to warn.” Id, (quoting Bice v,

Leslie’s Poolmart, Inc., 39 F.3d 887, 888 (8th Cir. 1994)).

Moreover, we stated: —

It is immaterial whether an inadequate labeling

or failure to warn claim is brought under a

negligence or products liability theory. If a state

law claim is premised on inadequate labeling or

a failure to warn, the impact of allowing the

claim would be to impose an additional or

different requirement for the label or packaging.

Id. (footnote omitted). Common law claims for breach of

express warranty also are preempted by FIFRA. Id. (citing

Welchert v. Am. Cyanamid, Inc., 59 F.3d 69, 73 (8th Cir.

1995)).

Netland concedes that our decision in National Bank

preempts his state law claims based on labeling or packaging

requirements in addition to or different from those required

under FIFRA. Nevertheless, Netland asks us to revisit our prior

decisions insofar as they hold that state law claims based on

failure to warn are preempted by FIFRA. Netland maintains that

a revisiting is necessitated by the Supreme Court’s decision in

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), and an amicus

curiae brief submitted by the United States Department of

Justice, representing the EPA, filed in Etcheverry v. Tri-Ag

Serv.. Inc., 993 P.2d 366 (Cal. 2000), which articulated the

government’s position that FIFRA does not preempt any state

law theories of liability, including failure to warn claims that

implicate pesticide labels. In addition, Netland draws our

attention to two recent state court decisions finding failure to

warn claims not preempted in light of these recent

developments. See

16 P.3d 1042, 1053 (Mont. 2000); Brown v. Chas. H. Lilly Co.,

985 P.2d 846, 853 (Ore. 1999). The law is well established,

however, that this court may not overrule one of its prior

decisions unless it does so en banc. Minn. Citizens Concerned

for Life v. FEC, 113 F.3d 129, 131 (8" Cir. 1997). Thus, until

modified or overruled by the court en banc, National Bank is

the law of this circuit. Accordingly, Netland’s failure to warn

and breach of warranty claims are preempted by FIFRA.‘

4At least two of our sister circuits have concluded that

the established interpretation of the FIFRA preemption clause

is unchanged by the Supreme Court’s decision in Medtronic,

Inc. v. Lobr, 518 U.S. 470 (1996). See, ¢.g., Grenier v, Vi. Log

Bidgs., Inc,, 96 F.3d 559, 563 (ist Cir. 1996) (“It. . . is now

settled by the Supreme Court in Cipollone [v. Liggett Group,

Inc., 505 U.S. 504 (1992)] and Lohr, that ‘requirements’ in this

context presumptively includes state causes of action as well as

laws and regulations.”); Hawkins v. Leslie’s Pool Mart, Inc.,

184 F.3d 244, 250 (3d Cir. 1999) (“even assuming that FIFRA

is analogous to the [MDA] addressed by the Supreme Court in

- Medtronic, contrary to [plaintiffs] assertions, we do not read

that case as standing for the overarching premise that tort

claims fall outside ‘preempted requirements’.”).

Next, Netland contends that his claims alleging strict

liability and negligence fall outside the state law causes of

action that are preempted by FIFRA. He argues that FIFRA

preempts only state law claims that directly challenge the

product label; therefore, FIFRA does not preempt his claims

that Bovinol was defectively designed and unreasonably

dangerous. The district court disagreed because it concluded

that Netland failed to produce any evidence of errors in the

manufacture of Bovinol other than the adequacy of the warning.

Netland, 140 F. Supp. 2d at 1017. Moreover, the district court

found that Netland’s liability expert, Dr. Lipsey, testified that

Bovinol is safe if properly used and distributed with appropriate

labeling, and therefore, Netland failed to produce any evidence

demonstrating that Bovinol is unreasonably dangerous. Id, at

1017-18. Thus, the district court concluded that Netland’s

claims alleging strict liability and negligence were nothing more

than a challenge to Bovinol’s label for failure to warn against

using the pesticide on horses before riding them. Id, at 1017-19.

On appeal, Netland argues that the district court’s

decision was in error because his complaint asserts a claim for

defective design, and therefore is not preempted by FIFRA. We

agree with Netland that defectively manufactured or designed

products properly labeled under FIFRA remain subject to state

regulation, in the form of common law or other claims.

Nevertheless, “if the state law claim is premised on inadequate

labeling or a failure to warn,” which results in the imposition of

additional or different labeling requirements, the claim is

nonetheless preempted regardless of the guise under which the

claim is presented. Nat’] Bank, 165 F.3d at 608. Thus, our task

is to determine whether Netland’s claims are essentially a

challenge to Bovinol’s label or the overall design of the

pesticide. To guide our analysis, we must ask whether in

seeking to avoid liability for any error, would the manufacturer

choose to alter the label or the product. See Worm v. Am.

Cyanamid Co,, 5 F.3d 744, 747-48 (4th Cir. 1993) (line

between mislabeling and defective design may not always be

clear but may be resolved by asking whether manufacturer

would alter the product or the label). After careful review of the

entire record, we agree with the district court and hold that

Netland’s claims are preempted by FIFRA because they are an

impermissible challenge to the pesticide’s label.

Netland contends that his claim is not preempted based

on Dr. Lipsey’s expert testimony that Bovinol was defectively

designed and unreasonably dangerous because it contained

DDVP as one of the active ingredients in its formula. In

particular, Netland asserts that Dr. Lipsey testified that a safer

and more effective alternative exists to DDVP, that being

pyrethrum. We disagree with Netland’s characterization of Dr.

Lipsey’s testimony. Dr. Lipsey did not testify that the inclusion

of DDVP makes Bovinol defective or unreasonably dangerous.

In fact, Dr. Lipsey testified that Bovinol is an EPA-registered

and approved product that can be safely used under appropriate

circumstances. Dr. Lipsey’s testimony merely indicated that Dr.

Lipsey personally sprays his horses prior to riding them with

pyrethrum, that he personally recommends pyrethrum for

horses, and that most people use pyrethrum for horses. It is

illogical to conclude that Bovinol is defectively designed or

unreasonably dangerous because a substitute product might be

the preferred pesticide for horses.

Dr. Lipsey’s remaining complaints with Bovinol all

directly challenge the pesticide’s label. First, Dr. Lipsey stated

“{a] prudent manufacturer would have put the fact that

[Bovinol] can affect bone marrow; that this . . . can cause

leukemia [on the label].”° Dr. Lipsey’s second complaint is that

the label is not specific about the parameters of using the

product on horses. In particular, Dr. Lipsey testified, “[the label

does not say] ‘Do not apply to horses.’ They said okay to horse

*Elaborating on this point, Dr. Lipsey further testified

that the label should include information about chronic health

effects so that the user could decide whether they wanted to use

it and could handle it in a safe manner.

10a

barns and okay to pests that get on horses, but they didn’t

exclude horses, so you can assume that you can apply it to

horses.” Dr. Lipsey’s final complaint with Bovinol also

concerns the pesticide’s label, but in this instance, he opines

that the label’s instructions to the user to use personal

protective equipment is “overkill,” and the label should merely

state “avoid breathing the vapors” or “avoid getting it on your

skin.” While Dr. Lipsey’s complaints with Bovinol may indeed

create genuine issues of fact, they nonetheless are insufficient

to avoid summary judgment because they fail to offer any

evidence of a design defect unrelated to the label. Thus,

Netland’s claims are preempted by FIFRA.

iil.

Because we find that the premise of each of Netland’s

claims is Bovinol’s label and is therefore preempted by FIFRA,

we affirm the well-reasoned and thorough opinion of the district

court granting summary judgment in favor of Hess.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

lla

United States District Court,

D. Minnesota.

Kim NETLAND, Plaintiff,

HESS & CLARK, INC., Defendant.

No. CIV.99-1032 ADM/RLE.

April 16, 2001.

MEMORANDUM OPINION AND ORDER

MONTGOMERY, District Judge.

I. INTRODUCTION

On February 1, 2001, the undersigned United States

District Judge heard Defendant Hess & Clark’s Motion for

Summary Judgment [Doc. No. 31]. Defendant seeks summary

judgment on Plaintiff Kim Netland’s claims for: (1) “strict

liability”; (2) “failure to warn”; and (3) “negligence and breach

of warranty.” Compl. 44 12, 15,18. Defendant argues that

the Federal Insecticide, Fungicide, and Rodenticide Act

(“FIFRA”), 7 U.S.C. § 136 ef seg., preempts all common law

actions against manufacturers of EPA-registered pesticides that

are based upon claims directly or indirectly relating to labeling,

including any failure to warn theory. For the reasons set forth

below, Defendant’s motion is granted.

II. BACKGROUND’

Plaintiff Kim Netland (“Netland”) alleges that he

developed aplastic anemia after using Defendant Hess &

Clark’s (“Defendant”) insecticide product, KenAg Bovinol

(“Bovinol”),” to spray his horses. Defendant’s Statement oi

Material Undisputed Facts (“SMF”) J 12-18, 24-26. Bovinol

is an organophosphate insecticide, registered with the United

States Environmental Protection Agency (“EPA”). SMF ¥ {

5-11. The product label describes all of its approved uses,

none of which include use on horses. SMF 9 J 19-21. Under

FIFRA, it is a violation of federal law to use a pesticide product

in a manner inconsistent with its labeling. See 7 U.S.C. §

136(ee). The Bovinol label lists various warnings and

precautions, including instructions to use specific personal

protective gear when spraying Bovinol. SMF { 22. Part of

the label reads:

Hazardous to Humans and Domestic Animals

Warning

May be fatal if swallowed, inhaled or absorbed

through the skin or eyes. Rapidly absorbed

through skin and eyes. Do not get into eyes, on

' In passing on a motion for summary judgment, the

court must review the facts in the light most favorable to the

party opposing the motion, and must give that party the benefit

of all reasonable inferences to be drawn from the evidence.

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

? Bovinol’s active ingredient is Dichlorvos, also known

as DDVP or Vapona. SMF ¥ 4.

13a

skin or on clothing. Do not breathe vapor or

spray mist. Wash thoroughly with soap. and

water after handling and before eating or

smoking. Do not contaminate feed, water,

foodstuffs, milk or milking utensils.

Wear clean natural rubber gloves, protective

clothing, and goggles, faceshield or equivalent.

Wear a pesticide respirator jointly approved by

the Mining Enforcement and Safety

Administration (MESA) and the National

Institute for Occupational Safety and Health

(NIOSH) under the provisions of 30 C.F.R. Part

11. Wear impervious footwear or protective

covers as shoes, boots and other articles made of

leather or similar porous materials may be

dangerously contaminated.

Bovinol Label, SMF 4 22.

In June 1994, Margaret Netland, Netland’s mother,

purchased Bovinol from a Bagley, Minnesota retailer, Marty

Brothers. SMF J 12. Margaret Netland purchased Bovinol

for her son’s use in keeping flies away from his horses. SMF §

§ 12-13. She was concerned about the risk of injury to

Netland if the horses reacted unpredictably to the flies. M.

Netland Dep., at 71. After reading the label, Margaret Netland,

using plastic gloves for protection, poured the Bovinol into a

“Lysol Basin, Tub & Tile” cleaner spray bottle. SMF 9 15-

17. She kept the spray bottle next to the large container of

Bovinol in the barn and told Netland to use the spray in the

bottle. Jd. Margaret Netland refilled the spray bottle at least

once, if not twice. M. Netland Dep., at 73. Netland admits he

did not read the Bovinol label. SMF ¥ 23.

14a

Netland alleges that he used Bovinol approximately

three to four times per week for a period of approximately six

weeks in the summer of 1994. SMF 4 24. During each use,

Netland testified that he sprayed one or two horses, with eight

to ten squirts from the spray bottle for each horse. Jd. Netland

rode the horses within minutes after spraying them. Netland

believes Bovinol contacted his skin as a result of his touching

the horses and the fact that his clothing was damp with Bovinol

after riding the horses. See K. Netland Dep., at 87-92, 94.

In late August and September of 1994, Netland began

feeling more fatigued each week. Jd. at 123-24. On September

28, 1994, Netland collapsed and was taken to his family

physician, Dr. Thabes, who referred him to a hematologist, Dr.

Kobrinsky. See Thabes Dep., at 18, 28, 41. Netland was

diagnosed with acquired aplastic anemia.’ SMF § 25.

Netland’s Complaint alleges theories of “strict liability,”

“failure to warn,” and “negligence and breach of implied

warranty.” Compl. § § 12, 15, 18. Netland’s liability expert is

Dr. Richard L. Lipsey. SMF § 37. Dr. Lipsey opined “the

only possible cause of [Netland’s] aplastic anemia has to be the

[Bovinol] product. Because he had a strong spatial correlation

[sic]. | He was there, he used it, he had no protective

equipment.” SMF § 45. Dr. Lipsey testified that the

Bovinol’s label was insufficient and that a prudent

manufacturer should have warned users to “avoid breathing the

vapors,” and “avoid getting it on your skin.” SMF 4 57. Dr.

Lipsey further testified that Bovinol is safe as long as it is used

3 Aplastic anemia is an anemia characterized by

defective function of the bone marrow, such that there is a

failure to properly form all types of blood cells.

15a

properly and is distributed with appropriate warnings so that the

user avoids breathing the spray mist. SMF J {J 56-61.

III. DISCUSSION

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56(c) provides that

summary judgment shall issue “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.” A genuine issue of material fact

does not exist “[w]here the record taken as a whole could not

lead a rational trier of fact to find for the non-moving party.”

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The

movant has the burden of showing that no genuine issue of

material fact exists. See Celotex Corp. v. Catrett, 477 U.S.

317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Once the movant meets its Rule 56(c) burden, the non-

movant “must set forth specific facts showing that there is a

genuine issue for trial.” Fed.R.Civ.P. 56(e). “The mere

existence of a scintilla of evidence in support of the [non-

movant’s] position will be insufficient; there must be evidence

on which the jury could reasonably find for the [non-movant].”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct.

2505, 91 L.Ed.2d 202 (1986). When weighing the evidence

offered by the parties on a motion for summary judgment, this

Court must review the evidence and all inferences drawn from

that evidence in the light most favorable to the party opposing

the motion. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.

The nonmovant, however, “must do more than simply show

16a

that there is some metaphysical doubt as to the material facts.”

Id. at 586, 106 S.Ct. 1348.

B. Preemption

Preemption is based on the Supremacy Clause of

Article VI of the United States Constitution. U.S. Const. art.

VI, cl. 2 (“This Constitution, and the Laws of the United States

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

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

be bound thereby, any thing in the Constitution or Laws of any

State to’ the contrary notwithstanding.”). The Supremacy

Clause invalidates state laws that interfere with or are contrary

to federal law. Wisconsin Public Intervenor v. Mortier, 501

U.S. 597, 604, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991);

Hillsborough County v. Automated Medical Labs., Inc., 471

U.S. 707, 712, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985);

‘Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824).

Such state laws may include legislative enactments and

executive pronouncements, i.e. positive law, as well as common

law claims recognized by state courts. See Cipollone v. Liggett

Group, Inc., 505 U.S. 504, 521-22, 112 S.Ct. 2608, 120

L.Ed.2d 407 (1992).* Given Congress’ power to preempt state

laws with federal regulation, the question is whether Congress

‘ The plurality’s judgment in Cipollone has been

embraced fully by the Supreme Court. See CSX Transp., Inc.

v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 1737, 123

L.Ed.2d 387 (1993); Freightliner Corp. v. Myrick, 514 U.S.

280, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995) (acknowledging

the possibility that tort claims may be impliedly preempted even

if not expressly preempted under an applicable statutory

provision).

17a

intended such federal regulation to supercede state laws.

“Congress’ intent may be explicitly stated in the statute’s

language or implicitly contained in its structure and purpose.”

Cipollone, 505 U.S. at 516, 112 S.Ct. 2608. In the case at

hand, FIFRA contains an express preemption clause. See 7

U.S.C. § 136v(b).

FIFRA creates a comprehensive scheme for the

regulation of the sale, labeling, packaging, and use of

pesticides. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991-

92, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984); Welchert v.

American Cyanamid, Inc., 59 F.3d 69, 71 (8th Cir.1995).

FIFRA requires that all pesticides to be sold and distributed in

the United States must be registered with the EPA. See 7 U.S.C.

§ 136a(a). FIFRA establishes a complex process of EPA

review that results in the approval of a pesticide label under

which the product may be marketed. Welchert, 59 F.3d at 71.

Manufacturers must propose draft label language addressing a

various number of topics, including ingredients, directions for

use, and adverse effects. Jd; 7 U.S.C. § 136a(c). The EPA’s

rules and regulations set forth specific labeling requirements.

See 40 C.F.R. § 156.10. The final label must be approved by

the EPA prior to registration. See 40 C.F.R. § 156.10(a)(6).

Under FIFRA, the EPA may not register a pesticide or

approve its labeling unless, inter alia, it finds that the product

“will perform its intended function without unreasonable

adverse effects on the environment [and] 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. § 136a(c)(5). As defined in

FIFRA, the term “environment” includes “water, air, land, and

all plants and man and other animals living therein.” 7 U.S.C.

§ 136(j) (emphasis added). Thus, the EPA must conclude that

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the product and its labeling are satisfactory to protect human

safety when the product is used in accordance with the

approved directions for use on the label.

Once a label is approved, FIFRA expressly provides for

a defense, based upon preemption, against certain state law

claims. National Bank of Commerce v. Dow Chemical Co., 165

F.3d 602, 608 (8th Cir.1999). The preemptive provision of

FIFRA states:

§ 136v. Authority of States

(a) In general

A State may regulate the sale or use of any federally

registered pesticide or device in the State, but only if

and to the extent the regulation does not permit any sale

or use prohibited 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 U.S.C. § 136v.

Thus, FIFRA expressly preempts state imposed

requirements in the areas of labeling and packaging that are “in

addition to or different from those required” by the EPA. 7

U.S.C. § 136v(b). The term “requirements” in § 136v

includes not only state statutory law but also state common-law

damages claims. See Medtronic, 518 U.S. at 487-88, 116 S.Ct.

2240; Cipollone, 505 U.S. at 521, 112 S.Ct. 2608 (concluding

that the term “requirements” sweeps broadly and “easily

encompasses] obligations that take the form of common-law

rules” and that an award of damages can be “ ‘a potent method

of governing conduct and controlling policy’ “ (quoting San

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Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247, 79

S.Ct. 773, 3 L.Ed.2d 775 (1959))). The legislative history

confirms that Congress intended § 136v(b) to completely

preempt state law with regard to labeling and packaging. See

H.R. Rep. 92-511, 92d Cong., 1st Sess. 16 (1971). Indeed, it

was Congress’ intent that § 136v(b) preempt “any State

labeling or packaging requirements differing from such

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

Sess., reprinted in 1972 U.S.C.C.A.N. at 4021. At all times

relevant to this case, the parties agree that the Bovinol product

was properly registered with the EPA pursuant to FIFRA and

carried the label approved by the EPA. SMF § 11.

1. “Failure to warn” claim

Netland alleges a failure to warn claim. State common

law claims for “inadequate labeling” or “failure to warn” are

preempted by FIFRA. National Bank of Commerce, 165 F.3d at

608. “It is immaterial whether an inadequate labeling or failure

to warn claim is brought under a negligence or products liability

theory.” Jd. Such claims attempt to impose liability for the lack

of warning labels “in addition to or different from those

required” by the EPA. See Welchert, 59 F.3d at 73 (“Where

Congress has so clearly put pesticide labeling regulation in the

hands of the EPA, [a] claim challenging the accuracy of the

[pesticide] label’s federally-mandated and approved statement

cannot survive. To hold otherwise 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 successfully complied with the specific

labeling requirements of its own regulations. In such case,

state court consideration of the label statement would be an

‘additional’ requirement.”) (internal citations omitted).

Netland’s failure to warn claim is preempted by FIFRA.

20a

2. “Negligence and breach of warranty” claim

Netland claims “negligence and breach of warranty,”

alleging that Defendant “failed to use reasonable care in the

design, manufacture, and sale of the [Bovinol] product.”

Compl. 4 18. To the extent that this claim also is predicated

on failure to warn and inadequate labeling, it too is preempted

by FIFRA. National Bank of Commerce, 165 F.3d at 608. A

claim of negligence for defective manufacture or design, which

does not directly attack the EPA-approved labeling, may escape

FIFRA’s preemption. Jd. at 609. However, merely alleging that

a claim is a design or manufacturing defect claim does not

automatically avoid FIFRA’s express preemption clause. See

Grenier v. Vermont Log Bldgs., Inc., 96 F.3d 559, 564 (ist

Cir.1996). Netland’s liability expert, Dr. Lipsey, testified that

Bovinol is safe as long as it is used properly and is distributed

with appropriate labeling. Netland has not produced any

evidence of errors in the manufacture of Bovinol by Defendant

other than the adequacy of the warning. See National Bank of

Commerce, 165 F.3d at 609 (holding that plaintiff's defective

manufacturing or design claims fail because they lack sufficient

evidentiary support to avoid summary judgment). Netland’s

only elaborated theory under the negligence claim is that

Bovinol was defectively designed or manufactured because it

was foreseeable that it would be used on horses and it was unfit

for this use. This semantically reworked claim is essentially

nothing more than a repeat salvo on the label’s failure to warn

against use on horses before riding. See Johnson v. Monsanto

Chemical Co., 129 F.Supp.2d 189, 194-95 (N.D.N.Y.2001)

(“Claims of misdesign or mismanufacture which the Court

regards as thinly veiled labeling or failure to warn claims will

not stand.”). FIFRA preempts Netland’s “negligence” claim.

See Grenier, 96 F.3d at 564-65.

2la

Netland’s breach of an express warranty claim is

necessarily based on the EPA- approved label. The Eighth

Circuit has held that FIFRA preempts common law claims for

breach of express warranty. See Welchert, 59 F.3d at 73.

Similarly, FIFRA preempts Netland’s breach of an implied

warranty claim. National Bank of Commerce, 165 F.3d at 608.

To allow Netland’s warranty claims would result in additional

or different requirements for the Bovinol label or package. Jd.

Summary judgment is thus appropriate for Netland’s warranty

claims. |

3. “Strict liability” claim

To establish a strict liability claim, Minnesota law

requires a plaintiff to prove that: (1) the defendant’s product

was in a defective condition unreasonably dangerous for its

intended use, (2) the defect existed when the product left the

defendant’s control, and (3)the defect was the proximate cause

of the injury sustained. Marcon v. Kmart Corp., 573 N.W.2d

728, 730 (Minn.App.1998) (citing Bilotta v. Kelley Co., 346

N.W.2d 616, 623 n. 3 (Minn.1984)). In determining whether a

product is defective, Minnesota courts apply a “reasonable care

balancing test.” Drager by Gutzman v. Aluminum Industries

Corp., 495 N.W.2d 879, 882 (Minn.App.1993). A

manufacturer is obligated to exercise a degree of care in its

design that avoids any unreasonable risk of harm to anyone who

is likely to be exposed to the danger when the product is used

in the manner for which it was intended or in a manner that was

reasonably foreseeable. Id.

Netland cannot elude FIFRA’s preemption provision

simply by alleging a strict liability claim. See Grenier, 96 F.3d

at 564. The evidence must be examined to determine whether

Netland’s strict liability claim is premised on something other

22a

than the label and whether the claim indirectly attempts to

impose label requirements in addition to or different than those

required by the EPA. See id. ; National Bank of Commerce, 165

F.3d at 608-09. Netland argues that because the Bovinol label

indicates an intended use for the control of insects in livestock

barns, including horse barns, Netland’s use of Bovinol on his

horses before he rode them was intended or reasonably

foreseeable. See Mem. In Oppos., at 9. However, Netland’s

liability expert testified that Bovinol is safe as long as it is used

properly and is distributed with appropriate labeling.

Moreover, as required by FIFRA, the EPA determined that

Bovinol would perform its intended function without

unreasonable adverse effects on humans and, when used in

accordance with widespread and commonly recognized

practice, it would not generally cause unreasonable adverse

effects on humans. See 7 U.S.C. § § 136a(c)(5), 136().

Because Netland fails to present evidence showing that Bovinol

was unreasonably dangerous, Netland cannot meet the first

element of a strict liability claim. See National Bank of

Commerce, 165 F.3d at 609 (finding plaintiff did not present

evidence proving that the product was unreasonably dangerous

and whether the defective condition proximately caused the

harm).

Essentially, Netland’s strict liability theory is that

Bovinol was in a defective condition unreasonably dangerous

for its intended use because it was foreseeable that it would be

sprayed on horses before riding them and it was unfit for this

use. This claim is simply another condemnation of the label’s

failure to warn against using Bovinol on horses before riding

them. See Grenier, 96 F.3d at 564-65. Netland’s strict liability

claim indirectly attempts to impose label requirements in

addition to or different than those imposed by the EPA. FIFRA

preempts such claims, regardless of the form in which they

appear.

Because FIFRA preempts Netland’s claims, the Court

does not reach Defendant’s arguments that Netland is unable

prove causation.

IV. CONCLUSION

Based upon the foregoing, and all of the files, records

and proceedings herein, IT IS HEREBY ORDERED that

Defendant Hess & Clark’s Motion for Summary Judgment

[Doc. No. 31] is GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 01-2182

Kim Netland,

Appellant,

Vv.

Hess & Clark, Inc.,

Appellee.

Order Denying Petition for

Rehearing and for Rehearing

En Banc

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

Judge Melloy took no part in the consideration of this

matter.

(5128-010199)

May 13, 2002

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit

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.