Document K6edVVGKMgbqz62J878wKv5pK

'- / Cvi \0 co t - > l UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA RUTH DAVIS, Individually and as Special Administrator for the Estate of JAMES R. DAVIS; LAURA DAVIS; DONNA DAVIS REINER; Plaintiffs, V. THE DOW CHEMICAL COMPANY, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) No. 85-1208 PHX EHC STATE OF MARYLAND ) ) S S .: COUNTY OF ) I, LEONARD CHIAZZE, JR, being duly sworn, de and says the following: 1. I am LEONARD CHIAZZE, JR. and reside at 11237 Waycross Way, Kensington, Maryland. I submit this affidavit in support of defendant, THE DOW CHEMICAL COMPANY'S (hereinafter "DOW") motion for summary judgment. 2. I have been designated as one of DOW's experts in the above-captioned case. O . I am currently Professor and Director, Division of Biostatistics and Epidemiology, Department of Community and Family Medicine at Georgetown University School of Medicine. I am also the Director of the Graduate Program in 733 -*7 4 ? -- Biostatistics and Epidemiology at Georgetown University Graduate School and School of Medicine. I have been on the faculty at Georgetown since 1966. A copy of my curriculum vitae is attached hereto as Exhibit "A". I have performed extensive research in the field of epidemiology, including the epidemiology of cancer and I / have published numerous articles on the subject of epidemiology including the epidemiology of cancer. Epidemiology is the study of diseases occurring in populations with the purpose of trying to identify associations (or connections) between diseases and potential causes. 4. I am familiar with the published scienti literature concerning 2,4,5-trichlorophenoxyacetic acid (hereinafter "2,4,5-T") and 2,3,7,8-tetrachlorodibenzo-para- dioxin (hereinafter "2,3,7,8-TCDD"). 5. Prior to May 1983 and, indeed, as early 1977, there were numerous articles published in both scientific journals and in the popular press concerning 2,4,5-T, 2,3,7,8-TCDD and cancer. The authors of some of these articles published as early as 1977 expressed the view that there was a possible causal relationship between exposure to 2,4,5-T and/or 2,3,7,8-TCDD and the development of certain cancers. For example, Hardell and co O workers reported cases of soft tissue sarcoma (a cancer of connective tissues) allegedly associated with exposure to phenoxyacetic acids including 2,4,5-T in the British Journal of t-- Cancer in 1979. The techniques and results of the Hardell studies have been attacked and widely debated since their publication. Another example is the Honchar and Halperin risk estimates of soft 734 p.74 3 tissue sarcoma allegedly associated with exposure to 2,4,5-T in the journal Lancet in 1981. That journal is one of the most widely read medical journals in the world. The Honchar and Halperin observations were demonstrated to be likely erroneous subsequent to May 1983. (See Excerpts from Proceedings of / Symposium held at Rockefeller University on the Public Health Risks of the Dioxins, October 1983, by Marilyn Fingerhut et. al., copies of which are attached as Exhibit "B".) 6. Prior to May 1983 and as early as 1981, there were several international symposia and scientific meetings on the subject of 2,3,7,8-TCDD in which the above reports were discussed. (See e. g . , excerpt from the Proceedings of an International Symposium on Chlorinated Dioxins and Related Compounds, October 1981, by Ralph Cook, attached hereto as Exhibit "C", and excerpt from the Proceedings of the Third International Symposium on Chlorinated Dioxins and Related Compounds, October 1982, attached hereto as Exhibit "D".) 7. In 1979, 2,4,5-T was the subject of a Rebuttable Presumption Against Registration (RPAR) proceeding conducted by the United States Environmental Protection Agency. During that proceeding, much public debate was had concerning some claims of alleged health effects associated with exposure to 2,4,5-T and/or 2,3,7,8-TCDD. 8. In 1976, an explosion at a chemical plant in Seveso, Italy caused world-wide discussion of 2,3,7,8-TCDD, a chemical which has been identified by plaintiffs in this lawsuit, and claims as to potential health effects including cancer. This 735 v- event was widely reported in the scientific and popular press. Moreover, the explosion and its aftermath were written about in many newspapers, at or around the time of the explosion. 9. All of the above events illustrate that 2,4,5-T and 2,3,7,8-TCDD were widely discussed both in the scientific and lay communities prior to May 1983 and as early as 1977. Included as part of this wide ranging and widely publicized controversy were claims as to possible roles in cancer formation. Indeed, I can think of few chemicals which have received such widespread publicity. Although I believe that the scientific evidence does not support any of the claims made in this lawsuit, and that the scientific evidence making any association between exposure to 2,4,5-T and/or 2,3,7,8-TCDD and the development of cancer in human beings to be lacking in foundation and scientifically unsupportable, such discussions about alleged health effects occurred well before May 1983 and were readily available to and accessible by both the scientific community and the general public. Sworn to before me this_ of September, 1988. ^day 736 say that a Dr. Freireich in a published article in 1966 showed there are drugs, including 2,4,5-T and its dioxin TCDD, that are more toxic in man than in any mouse or other laboratory test animal by at least a factor of 10 to 15. The real problem with most of the studies or tests done by the major chemical companies to prove that their products are safe fail to be valid for the following reasons: (1) They are not done in the environment of the herbicides' actual use; (2) They are not done with man being observed or tested? (3) There are no synergistic studies done in the environment that shows what the combined effects of 2,4-D/2,4,5-T would be; (4) The laboratory environment is only operated in with healthy animals in an absolutely controlled temperature and humidity setting that is nothing like the environment of use; (5) Tests done in laboratories use a different form of the "pure chemicals" that you never actually see in the environment. These chemicals are not in an active state, but are in a inert condition and do not react on the test animals in the way that they operate on the humans in the actual use environment; (6) Most laboratory tests only study acute exposures and ignore the long-term chronic effects which is what anyone should be concerned about in an environmental exposure; (7) No one in industry ever pays any attention to actual case studies done by individual doctors or small groups. They certainly never pay attention to all the litigation cases such as Greenhill v. D o w . Mover v. D o w . Davis v. D o w . v. qv, Keister v. Dow, etc; (8) Almost all studies talk about comparative theories and never talk about actual personal experiences such as a forest worker who uses 2,4-D and 2,4,5-T together in an environment where they are soaked to the bone day after day; (9) Chemical companies never tell you that certain people are morg susceptible to these health hazards than others based on their individual chemical make-ups and their 737 : fv % L previous exposures such as smokers, Vietnam veterans, chemical plant workers, forest workers, agricultural workers, etc; (10) They never tell you that a damp or wet product will produce much more damage health wise than a dry one tested in a laboratory environment; (11) The real test has to do with the amount of exposure that an individual has and the particular absorption that the person has experienced, especially when working with clothes that are soaked in the herbicides day after day. The washing of these clothes in a normal washing cycle will not even begin to get the chemicals out, therefore, when the worker reuses the same clothes over and over again, each exposure is additive in nature. One of the keys to the toxicity of these herbicides is based on their pH. At low pH's toxic and mutengenic effects occur. To stop these effects, you only have to raise the pH to a higher level. This is exactly what all the chemical companies do when they administer them orally to their test animals. Therefore, they are never given a potent part of these herbicides. There was one document that showed a particular research' study conducted on how to wash clothes that had been exposed with these herbicides. They made the very important point of showing 2,4D/2,4,5-T molecules are more readily absorbed through the skin because of their larger molecule size, than ever would be brought into the body by swallowing it or breathing it. This is especially true when the herbicide is wet, and when it soaks into one's clothes through multiple uses over a period of days. NOTE; It is interesting to see that none of these chemical companies have ever given health tests to their own workers before using these herbicides or being around them in the manufacturing process. Anyone that has been previously exposed will already have a weakened immune system and these chemicals will easily attack their bodies, in fact, I am amazed that they don't prohibit the use of these herbicides among high exposed occupations such as roadside brush spraying, railroad right-of-way spraying, forest service workers, farmers, chemical manufacturers, etc. I discovered many labels from Dow as I looked through these files 7 RICHARD D. SCHULER WENDY H. WERB JA M E S D. W ILKERSO N, JR. LO U IS L. W ILL IA M S * B O A R D C E R T IFIE D CIVIL TRIA L LAWYER September 11, 1992 TELEPHONE 4 0 7 - 6 8 9 - 8 1 8 0 FACSIMILE 4 0 7 - 6 8 4 - 9 6 8 3 ADMINISTRATOR: CAROLYN SHAFER INVESTIGATORS: ROBERT F. BLEAK GRACE E. SMITH Carolina Library Service, Inc. 209 North Columbia Street Chapel, Hill, N.C. 27514 Re: Medical Articles Gentlemen: Mr. Schuler has requested that the medical articles marked on the attached pages along with the following: 1. "Chemical Carcinogenesis: Introductory Remarks." Occupational Carcinogenesis, Annals of the New York Academy of Sciences, Vol 271, page 39, 1976, Leonard Chiazze, Jr. 2. Also another article by Chiazze "Discussion of Part II: Chemical Carcinogenesis (I)" In Occupational Carcinogenesis, Annals of the New York Academy of Sciences, Vol 271, pages 473-480, 1976. 3. Book: "Chemical Deception", Marc Lappe, Sierra Book Club. 4. Article on Brain Injury published in the New England Journal of Medicine, August 30, 1990. Thank you. Dee Weichman, Secretary to Richard D. Schuler Enclosures 73 Sciences effect of metabolic activatj0r) >f --veral A'-nitrosamines 0n I utat. Res. 26: 361-366 i t-i...Jiated assay, a practice | its in mammals. In Cherry. ! Detection. A. Hollaender N.Y . '' Hozumi & T. Matsushima iran derivatives. In Cherny matis, Eds. IARC Scientific yon, France. ment of screening methods le Problem of Mutagenesis mental Conference, United im. Unpublished, reformation with chemical nation of normal cells to Cancer Inst. 35: 641-661. Quantitative studies of in Jat. Cancer Inst. 42: 867- ulture. Adv. Cancer Res. lemical carcinogenesis. In L. Tomatis, Eds. IARC mcer. Lyon, France. '.. In vitro transformation ical carcinogens. Nature 1973. Malignant transsamine and IV-methyl-N'O. 1973. Carcinoma after from rat liver following tO' "12. . ( t-mediated in vivohoi. 95: 380-385. jl. pAKT Chem ical Carcinogenesis CHEMICAL CARCINOGENESIS: INTRODUCTORY REMARKS Leonard Chiazze, Jr. Georgetown University School of Medicine Washington. D.C. 20007 The growing number of environmentally related cancers suggests that surveilshould play a greater role in identifying potential carcinogenic risks among *afl king populations. Although a later session will be devoted to surveillance w0 ,, high-risk groups, a few comments may be appropriate here. Potential 3 cinogens are being identified with increasing frequency. The evidence would " hi to indicate that this identification comes more as a result of accidental Hiical observations than from a systematic surveillance effort. Events leading c the systematic study of vinyl chloride workers is a case in point. It has been gsted that the high risk of this disease for polymerization workers might have gone unnoticed except for observation by a plant physician (J. W. Lloyd-- NI0SH Communication, January 1975). Unfortunately, components of a suryeijiance program are complex, and data acquisition requires a significant organized effort to identify risks early enough for effective action. In order to accomplish this goal, timely information must be available, which will enable 0ne to characterize a working population and its environment, to provide appropriate outcome measures, and to measure effectively the interrelationship among the three. The usual course of action is to apply classic epidemiologic methods to test hypotheses about risk factors once suspicions have been raised by accidental observations or descriptive studies. Any number of studies have demonstrated clearly that both population and outcome (measured by mortality) can be described retrospectively. Procedures are difficult and time-consuming, but the goals are achievable. Unfortunately, there usually is no way of retrospectively describing the precise working environment. Further, the use of mortality as an outcome measure means that the problem is identified long after it arose and that others will probably be affected before effective preventive measures can be initiated. It is clear, then, that in order for surveillance to be effective in early identification of excess risk, it must include early effects recording as well as continual monitering of the working environment. Unfortunately, there are serious deficiencies in our capability to provide uni form, complete, and up-to-date information on effects. Consider the varying levels at which health effects may be measured: (1) death, (2) morbidity (clinical illness), and (3) early abnormality (abnormal lab test). For mortality, there is a national data-acquisition effort. While some information on morbidity and early abnormalities is available, that information is not part of any sys tematic occupational health-data system. A cooperative uniform reporting and analysis system could result in early risk identification enabling action, rather than reaction. Such a system would involve a minimum uniform data set for outcomes and exposures and could utilize data from nationally sponsored pro grams such as those of NCHS and NCI (SEER) that focus on morbidity. Industry records are, of course, the key to any early warning system with the capability of providing a total system of environmental and effects evaluation. It is likely that components for reasonably effective surveillance exist currently if properly drawn together. E arning bv c o c v r,c Tit)Relit may k* co 1 S c h u l e r , Wil k e r s o n , Halv o r so n & Williams pr o fe ssio n a l association A T TO R N EY S AT LAW ALAN FIEDEL STEVEN W, H ALV O R SO N * AMY U. HICKMAN BRIAN T, SCHER RICHARD D. SC H ULER* WENDY H. WERB JA M E S D. W ILKERSO N. JR .* LOUIS L. W IL L IA M S * BARRISTERS BUILDING 1615 FORUM PLACE W e s t P a lm B e a c h , F l o r id a 33401-2382 TELEPHONE 4 0 7 - 6 9 - 8 I8 0 FACSIMILE 4 0 7 - 6 8 4 - 9 6 0 3 ADMINISTRATOR: CAROLYN SHAFER IN V E S T IG A T O R S . ROBERT F. BLEAK GRACE E. SMITH * B O A R D C E R T IF IE D CIVIL TRIAL LAW YER September 11, 1992 Carolina Library Service, Inc. 209 North Columbia Street Chapel, Hill, N.C. 27514 Re: Medical Articles RECEIVED SEP 4 1332 Gentlemen: Mr. Schuler has requested that the medical articles marked on the attached pages along with the following: 1. "Chemical Carcinogenesis: Introductory Remarks." Occupational Carcinogenesis, Annals of the New York Academy of Sciences, Vol 271, page 39, 1976, Leonard Chiazze, Jr. 2. Also another article by Chiazze "Discussion of Part II: Chemical Carcinogenesis (I)" In Occupational Carcinogenesis, Annals of the New York Academy of Sciences, Vol 271, pages 473-480, 1976. 3. Book: "Chemical Deception", Marc Lappe, Sierra Book Club. 4. Article on Brain Injury published in the New England Journal of Medicine, August 30, 1990. Thank you. Dee Weichman, Secretary to Richard D. Schuler Enclosures T4 * P - 7 10 Sciences y; e. I think that most 'oxio Substances legislation right now and I think that ty, Baltimore, M d. ) : [yr istry that wanted to manu- and found it to be highly that you had a basis f0r s carcinogenicity? >r of the test for mutagenic negatives. We have to deell transformation systems, all the positives. uld be basically taboo, but ie issue of the risk versus and your risk, but we can ): I think that everybody chemicals to be tested on 'ong-term tests, even when tat were reviewed by the experimental animals are r year. Rochester, N .Y .) : I think e animal models. Human ime statistics. It's one out tundred or one out of five ie to the other concerning not make that translation, any event will sooner or f positives and false Bates why the final report by the contractor to the ic record in the National It is therefore an official .y methods won't obscure lich probably hasn't been ere is a proliferation of n. As scientists we know that their use also pro- :h, unfortunately, always emphasize that the data vpanded so that we can edictive index for man. nal hazards, but I think ted to participate in the the time. DISCUSSION OF PART II: CHEMICAL CARCINOGENESIS (I) Leonard Chiazze, Moderator Georgetown University School of Medicine Washington, D.C. 20007 0 r. Rodolfo Saracci (Italian National Research Council, University of pisa, P`sa' lAt/y): I want to underline some general features of this session's pers, three of which stand out. First, chlorinated organic compounds have been known for a long time, as have their pharmacological and toxicological properties and effects. Classical compounds that one can mention are chloroform and carbon tetrachloride. However, members of this broad family of compounds recently have been shown to have a series of disturbing properties, among which are oncogenic, teratogenic, and embryogenic characteristics and action on genetic material, all of which were discussed in this session. Second, studies like those presented this morning on humans are not only useful for identifying and quantitating risk loads but also in elucidating the actual paths of correlation among the different properties, such as oncogenesis, teratogenesis, mutagenesis, and embryogenesis. This same ensemble of proper ties is something that was underlined yesterday as being characteristics for short-term predictive tests. Today's epidemiological studies have beautifully shown the correlation between animal bioassay and human epidemiological findings. Third, a rather broad spectrum o f methodological approaches has been shown, ranging from animal studies to clinical case reports, formal epidemio logical studies, evaluation of screening programs, and to evaluation of doseresponse curves, both in animals and in humans. The first paper, by Mr. Waxweiler and his colleagues, extended what can already be considered classic results, of cancer in workers exposed to vinyl chloride. It went further in classically documenting for the first time the parallel between the multiple-site oncogenicity found in animals and that found in humans exposed to vinyl chloride. It was mentioned that in the factories studied, there was, of course, a mix ture of compounds. In particular, vinylidene chloride was mentioned. Do the investigators have some information on other chemicals used, and were these compounds taken into account in the analyses or are investigations planned on these aspects? I noticed that there was a deficit in cirrhosis of the liver. In view of the fact that the liver is the first target organ for vinyl chloride, could the deficit of liver cirrhosis be a function of the expectation being spuriously high because of the use of general population vital statistics? Finally, I think that the way the data were presented doesn't tell the entire story. The data are presented in a cumulative form. That is, analyses of work ers who had 10 or more years since onset of exposure and then of workers with 15 or more years since first vinyl chloride exposure really is analysis of a subgroup of the first group. I especially enjoyed the paper by Dr. Infante, because he has moved success- 473 m A O WARNING T`. material may k* c 474 Annals New York Academy of Sciences fully ahead in the same direction as we are moving with a similar study jn ., Tuscany region in Italy. I have, therefore, a few questions to ask him. Vv environmental measurements done, and if they were measured, what pollut^ mixtures were present? Also, I find the part related to congenital malformatfnt more well founded than the part related to tumors. The part related to tum0n is essentially based on current rates without taking migration into accou rS > Because the study communities are small communities, migration may k* important. e Dr. Corbett first reviewed the epidemiological studies of mutagenic, tera togenic, and oncogenic effects associated with anesthetic gases and then presented a new animal inhalation study of cancer following isoflurane adrnin istration. I would like to ask Dr. Corbett--why was this particular kind 0f experimental design used with administration of the anesthetic both antenatal) and postnatally? Next, Dr. Sakabe presented some interesting results; however, he unfortu. nately attached to them some p value that I didn't expect to appear. I think that the distinction between epidemiologic and clinical studies is, in a sense just a matter of convenience. In another sense, it may be very misleading, j think that there are good studies and less good studies which stand on solid or less solid foundations. I would have preferred not having any statistics on that group of cases; rather, I would have preferred to have firm diagnoses. Of four cancer cases, there are two cases in which there are no histological findings. While I recognize the value of small studies, such as the original case reports of angiosarcoma among workers exposed to vinyl chloride and leukemia and past benzene exposure, I don't think one should prematurely force statistical interpretation to case reports. r0brt was presented, but ^ o re fully, to place it in the The cohort study involv ,y C ) workers were studies; porkers and workers whos< tion area on a regmar ba ,,eluded. In the fourth pi previously seen, everybody in synthetic rubber producl The total number of li ,2 met the criteria of the y C work area and 10 yes y C workers with duration cohort study criteria, and 1 exposure. Pathology specimens h 0f the 47 cases. These 22 by M r. Waxweiler, seven workers not eligible for the The 22 specimens were of the National Cancer I Dr. Marvin Kuschner of tl Health Organization classif Of these 22, two were three were small-cell anapl, undifferentiated, with one i of that which was expects The next paper, by Mr. Lemen and his colleagues, demonstrated a variety mon, and large-cell undiff of statistical methods, from the case control study of sputum to the retrospective the total in most series. cohort study of cancer incidence. My only question is--do they plan to do a follow-up of the workers in order to see the effect of the sputum screening program? All 10 VC workers wr or large-cell undifferentiat carcinomas were in work In Dr. Nelson's presentation, I most appreciated the study of dose-response plants. Interestingly, five effects in humans. However, as he talked about speculative exposure and ex also had adeno- and large- posure score, I was hoping that he would expand a bit more on those points, ) because they are critical inputs to his study. Next, consideration o exposure, shows very stri Finally, I entirely agree with what Dr. Lloyd said about the character of cinomas were seen in she the data he presented so well, although he was called in at the very last minute than one year at the plants to do so. I would emphasize the point he made about averages, that is, the The pathology to date need for more data related to the exposed population, not only to the cases. I would go a bit further than that. I'm always in a very difficult position when I have to evaluate what average age of the event means. It can come out in l logic types. However, tlx we obviously must compl are currently putting togi such a different combination of ways if one takes the pain of going back to the four areas. data. I frankly would prefer to have the distributions and then work out the Next, although large-c proper statistics myself. ing history, I think we ob D r. Henry Falk (Center for Disease Control, Atlanta, Ga.): Mr. Waxweiler began the morning session by presenting the results of a NIOSH mortality study at four vinyl chloride plants. As part of that study, in addition to the statistical data and death certificate information, we at NIOSH-CDC have been i cases, including exposure left and worked elsewhere This is a very differen seen in the angiosarcorr polymerization areas at tl collecting medical record information and pathology specimens where indicated. and large-cell carcinomas The finding of a statistically significant increased risk of lung cancer in the 743 V 77^- Sciences a similar study n [u^itiioonns to ask him. e measured, what Wt. .,ere to congenital malfoPromllauttiaonnt The part related to tumors ig migration into account mities, migration may t,e ;tudies of mutagenic, teranesthetic gases and then ollowing isoflurane admin-as this particular kind 0f anesthetic both antenatally ults; however, he unfortuexpect to appear. 1 think cal studies is, in a sense lay be very misleading, j s which stand on solid or ving any statistics on that i firm diagnoses. Of four : no histological findings, the original case reports iloride and leukemia and maturely force statistical i, demonstrated a variety iutum to the retrospective is--do they plan to do a of the sputum screening i ie siudy of dose-response ulative exposure and ex it more on those points, about the character of 1 at the very last minute ut averages, that is, the not only to the cases. / difficult position when is. It can come out in tin of going back to the and then work out the anta, Ga. ) : Mr. Wax5 of a NIOSH mortality udy, in addition to the IIOSH-CDC have been :imens where indicated, k of lung cancer in the Discussion 475 rt was presented, but I think it is important to discuss this information c re fully, to place it in the appropriate context. nlThe cohort study involved four plants. In three of them, only vinyl chloride \lO workers were studied, although included in this group are polymerization orkers and workers whose jobs would have brought them into the polymeriza* area on a regular basis; in one plant, compounding workers were also Ueluded. In the fourth plant, because of the high incidence of angiosarcoma 1 eviously seen, everybody, including nonvinyl chloride workers, such as those P synthetic rubber production, was assessed for input into the pathology study. Ifl The total number of lung cancer cases observed was 47. Of these cases, j2 met the criteria of the cohort study, which were 5 years of exposure in a yQ work area and 10 years of latency. Of the remaining 35 cases, 20 were yC workers with duration of employment or latency insufficient to meet the cohort study criteria, and 15 cases were among workers who had no direct VC exposure. pathology specimens have been obtained and reviewed at this point on 22 0f the 47 cases. These 22 cases include eight of 12 in the VC cohort discussed by Mr. Waxweiler, seven of 15 nondirect VC workers, and seven of 20 VC workers not eligible for the cohort. The 22 specimens were reviewed by Dr. Louis Thomas and Dr. Tad Powell of the National Cancer Institute, by Dr. Laslo Mock of Louisville, and by Pr. Marvin Kuschner of the State University of New York by use of the World Health Organization classification system of Kreyberg. Of these 22, two were considered to be epidermoid carcinoma of the lung, three were small-cell anaplastic, six were adenocarcinoma, and 10 were large-cell undifferentiated, with one not classified. This distribution is virtually the reverse of that which was expected. Generally, epidermoids would be the most com mon, and large-cell undifferentiated cancers would generally be about 10% of the total in most series. All 10 VC workers with more than one year of exposure had either adenoor large-cell undifferentiated carcinoma. Most of the epidermoid and small-cell carcinomas were in workers with less than one year of VC exposure at the plants. Interestingly, five of the seven workers who had no direct VC exposure also had adeno- and large-cell undifferentiated carcinomas. Next, consideration of the total time worked at the plant, regardless of exposure, shows very strikingly that all of the epidermoid and small-cell car cinomas were seen in short-term workers, whereas all 13 workers with more than one year at the plants had large-cell or adenocarcinoma. The pathology to date suggests a strikingly unusual distribution of the histo logic types. However, there still are several questions about these data. First, we obviously must complete the sample to eliminate the possibility of bias. We are currently putting together a control group of matched lung cancers in the four areas. Next, although large-cell undifferentiated types do not correlate with smok ing history, I think we obviously need more epidemiologic information on these cases, including exposure at plants other than the VC plants for people who left and worked elsewhere. This is a very different distribution in terms of work exposure than we have seen in the angiosarcoma cases. In the angiosarcoma, all cases worked in polymerization areas at these plants. We've seen here, in these adenocarcinomas and large-cell carcinomas, a mixture of work exposure at the plants. We have 744 V-1*13 476 Annals New York Academy of Sciences cases who have worked in the polymerization area. We also have cases have worked in milling and packing areas, where VC exposure would be lower. We have a few cases who worked in synthetic rubber product^, ^ these plants, where their exposure might be to other chemicals, such as v at cyanide. We also have a few individuals who worked at different parts of1'^ plant, such as an electrician, a pipefitter, a guard, and a mechanic. I theref think the specific relationship of these excessive cases of undifferentiated re adenocarcinomas of the lung is not yet really clear in terms of etiologic facto^^ Having raised the question of complex chemical exposures, I would a^' like to stress that very little is known of the possibility that other vinyl co^ pounds, for example, vinyl cyanide, vinylidene chloride, and vinyl alcohol, J"' enhance or accelerate the carcinogenic risks of VC. Virtually all of the Anted can polymeriza.tion plants w...i..th cases of hepatic angiosarcoma hLa_v. e_ used ofll vinyl compounds. Detailed exposure data will have to be kept for all cases'^ document and study these interactions. I think that this point applies equally well to chloroprene. In preliminary discussions at that plant when this question first arose, it was learned that vinyl cyanide, vinyl fluoride, and other fluorinated hydrocarbons have been in use, and this says nothing of the possibility that trace amounts of VC might be released during production and polymerization of chlorobutadiene. Mr. R. J. W axw eiler: Let me first answer the question raised as t0 whether vinylidene chloride was accounted for. It was not accounted f0r insofar as we couldn't identify those who had been exposed to vinylidene chloride and those who had not been exposed to it. Some of the products that are made at some of these plants under study are vinylidene chloride, vinyl acetate, dibetal maliate, hydrogen betalmalate, methyl acrylates, styrene, ac rylonitrile, and isoprene. At one point, Dr. Falk brought up the point that a 1 lot of these chemicals haven't been tested for carcinogenicity. While this state- , ment is true, it is difficult to evoke any etiology other than vinyl chloride for 1 this excess of multisite oncogenesis, in light of the close similarity between the NIOSH epidemiologic observation and the findings previously demonstrated in animals by Dr. Maltoni. In answer to the second question, about cirrhosis, we often find deficits of cirrhosis of the liver during our occupational health studies. These cases can be directly related to alcoholism programs or screening physi cals given by management prior to hiring. In answer to the last question, latency was presented as it was because beyond 20 years of latency, the person-years were too small in the categories to permit any sound judgment. Dr. C. Maltoni: I was very interested to hear Mr. Waxweiler and Dr. Falk state that the feature of pulmonary tumor in the VC workers is quite peculiar, at least its distribution. I think that when 10 of 20 lung cancers are large-cell carcinomas, this figure is quite an abnormal distribution as compared with what one usually sees in pathologic laboratories. I would like to ask these two 1 colleagues if they would provide some further detail. Are the tumors squamoustype large cell or are they of the large-cell adenocarcinoma type? When, in 1969, we looked at the sputum of people exposed to VC, we were quite im pressed by the fact that, microscopically, we found cells of this aplastic type, ( which we had never seen with such a high frequency in any other group, never in heavy smokers or in the general population. I therefore think that this finding I is quite interesting, because it matched very well with the different distribution ? of tumors shown by NIOSH-CDC. I would also add that little is known about j r inyl acetate. In pm of vinyl ac ompound was c nd we succeede coup of 96 rat ibserve any turn ,ow repeating th. Dr. E. P. r a n Louisville, I ; -ather than on p: ."r-vc-u TT,,, Louisville plant, VC workers, anc at the study by digestive system et a!, study, the workers and not Dr. A. Engi Sweden): It mi cohort of VC p started just afte: ployed at the fit began to work have so far died are a few import First, it has because the woi great deal all tf response study. Second, wit) cancers in the j that it is rather pancreatic tumc using for our a nosis. We havi against the cam Obviously, i creatic cancers by the cancer re We have nc has been menti< circulatory disc cardiac arrhyth Dr. P. F. I toring of envir small amount c 745 | P' 7 7 4 f , eciences We a,so have cases wh C exposure would be mUcK hetic rubber production " er chemicals, such as vinvi ed at different parts of th nd a mechanic. I therefor ses of undifferentiated an*j n terms of etiologic factors al exposures, I would aisn >ility that other vinyl com ide, and vinyl alcohol, m ' Virtually all of the Ameri iosarcoma have used other to be kept for all cases to t this point applies equally at plant when this question aride, and other fluorinated ling of the possibility that luction and polymerization the question raised as to t was not accounted for en exposed to vinylidene Some of the products that vinylidene chloride, vinyl hyl acrylates, styrene, acought up the point that a genicity. While this stateer than vinyl chloride for c imilarity between the rtviously demonstrated in estion, about cirrhosis, we ccupational health studies, grams or screening physi- sented as it was because 1small in the categories to . Waxweiler and Dr. Falk porkers is quite peculiar, i ijjg cancers are large-cell 9 f a s compared with what i qe like to ask these two vie the tumors squamouscinoma type? When, in ) VC, we were quite im:ells of this aplastic type, in any other group, never ore think that this finding the different distribution that little is known about Discussion 477 vjnyl acetate. In 1970 we started an experiment on animals exposed to 10,000 om of vinyl acetate. At that dose, all hamsters died in a few weeks. The comPound was 9u`te toxic. Subsequently, we lowered our dose to 2500 ppm, nd we succeeded in getting a few animals to survive for 20 months. In this roup of 96 rats, although very few were alive after 600 days, we did not observe any tumors. However, since their survival rate was so poor, we are Oow repeating this experiment at a 100 ppm level. Dr. E. P. Radford: In the studies done by Monson et al. of VC workers n Louisville, I am told that the mortality statistics, based on mortality rates rather than on proportional mortality, are remarkably similar to those reported ,y NIOSH. The fact that there is such close agreement is, of course, not too surprising, because the Louisville plant was included in the NIOSH study. One discrepancy between the two studies is the fact that digestive cancers were found in excess by Monson et al. but not by NIOSH. Mr. Waxweiler, would you comment on this point? Mr- W axweiler: The study by Monson et al. included everyone in the Louisville plant, with no breakdown as to whether they were rubber workers or VC workers, and that plant does have a large rubber facility. Now, if one looks at the study by McMichael et al. of rubber workers, one finds an excess of digestive system tumors. The excess of digestive tract cancers in the Monson el al. study, therefore, would appear to be related to exposure of the rubber workers and not to VC exposure. Dr. A. Englund (The Swedish Confederation of Trade Unions, Stockholm, Sweden): It might be of interest for you to know that we are also following a cohort of VC polymerization workers at one company in Sweden; this study started just after World War II. Approximately 800 persons have been em ployed at the firm since the study was initiated. However, only a few of them began to work there more than 20 years ago. Slightly more than 50 people have so far died in the cohort. We have not completed the study yet, but there are a few important experiences worth describing. First, it has been very difficult to assign people to different exposure levels, because the workers move around quite a lot, and the exposure level changes a great deal all the time. In addition, no nice exposure levels exist for a doseresponse study. Second, with regard to effect, although there have been many pancreatic cancers in the group, liver tumors have been surprisingly infrequent. We feel that it is rather difficult to know exactly what is a liver tumor and what is a pancreatic tumor when talking in terms of this kind of statistics. Also, we are using for our analyses the National Bureau of Statistics death certificate diag nosis. We have, however, separately, quite separately, matched our findings against the cancer register, which covers the whole country since 1958. Obviously, there are difficulties in diagnoses. For example, one of the pan creatic cancers has now been classified as angiosarcoma of the liver, as shown by the cancer registry records. We have not, as far as I know, seen any excess in cerebral tumors, which has been mentioned by NIOSH. On the other hand, we are a bit curious about circulatory diseases because of reports that show VC to be associated with cardiac arrhythmias. Dr. P. F. Infante: Dr. Saracci asked whether there has been any moni toring of environmental pollution in those areas. To my knowledge, only a small amount of preliminary monitoring was done for VC in Painesville. As I 746 478 Annals New York Academy of Sciences understand it; this monitoring was done well over a year ago, and monit, techniques have monitor again, if been modified since that time. Perhaps they we feel that the birth defects may possibly be remlaatyedwta0m0rine8 VatsBut, again, this was a population study, and I have made these obser-- although we don't defects are related yet to. know what I think that aspect of there are environmental exposure two factors to consider. Othneesef3w(li| is out-plant VC pollution associated with these observations. If this factorCL a___n_eCffeAct, you certainly wouldn't expect____________________________1J U __________i it ito have _sIhown up !in. .1the expert`sn; in North Ridgeville, because that community is about eight or 10 miles f,^ the Avon Lake VC facility, so the findings would have to be related to wort1" experience. However, in Painesville, there is a greater possibility that this fac(er is important, because this town has two VC plants. The community also ha<jr i significantly greater number of central nervous system anomalies in live 3 f stillborn infants; central nervous system (CNS) cancers in adults were 1 much greater than expected. The second factor, with regard to migration that there were no CNS cancers in Avon Lake, where the population has'1* creased 30% in the last 10 years, so there was quite an in-migration. And*! think it would probably take a while for anything to show up environmentally In Painesville, however, the population has been stable over the past 10~2o years, the period during which the brain cancers were observed. Dr. M uriel L. N ewhouse (London School of Hygiene and Tropical Medi. cine, London, England): Dr. Infante, do you have any information on neural defects in earlier years and by geographic area, because these defects do have j very odd geographic distribution, which is not always easily explained? Dr. Infante: At the present time, I have just looked at the last four yean in those specific areas and have just completed these analyses in the last week, but I am planning to go back to 1957. I have data available but haven't looked at them yet. Dr. T. C orbett: I'd like to respond to the question raised by Dr. Saracci He asked why we used the transplacental route for exposures in our study. We did this for two reasons. First, the fetus is usually considered to be more sensitive, than the adult toward the action of a carcinogen. Second, it is a faster determination. Usually, you will see a spectrum of tumors earlier by this route than if you had gassed adult animals. We felt a sense of urgency in testing this particular drug, because it is undergoing human clinical trials at present and is being considered by the Federal Drug Administration for use in the general population. If it is carcinogenic, we wanted to find out prior to its release. Mr. R. A. Le m e n : One point that might further complement the studies presented this morning relates to some work recently completed by Dr. Frost and his colleagues at Johns Hopkins University. These investigators undertook a cytology program among three groups: utility, asbestos, and chemical work ers. The latter group was identified as being possibly exposed to bisfchloro- methyl) ether. The first screening identified a very definite dose-response effect for cytologic findings. Four weeks later, they did a repeat cytologic examination for all individuals who had nonnegative cytology on the first screening, and the results were 13% nonnegative cytologic findings in utility workers, 30% in asbestos workers, and 58% in the bis(chloromethyl)ether (BCME) workers, of which three frank malignancies were detected by the program. These cyto logic findings certainly complement those presented this morning by NIOSH. Dr. W illiam Weiss (Hahnemann Medical College, Philadelphia, Pa.): Mr. Lemen referred to a study in Philadelphia on workers exposed to chloro- ethyl methylether. Tetails now, and I \ end of 1962, we be| jji vvere exposed ii " c rkers, 49 had mo periodic screening w like some of group, that there is toms, chronic cougl histories. Of the w chloromethyl methy noncigarette smokei -phe remaining 36 w than one pack per c carcinomas, occurre First, the lung eXposed workers. ! noncigarette smokei smokers, one of twc smokers. We thus among nonsmokers cigarette smokers ' These observations uranium workers. DR. V. K. Row interest to extend tl ether. We have just tory, and this infoi cology. In this stu 100 p arts/10, the cancers that invade that there were no t 10 animals were ex results at 10 parts relationship that se< D r. E. Farber: fit more or less the the tumor patterns seems to give a vei far as I know, this never sees oat cell not trivial because for an animal mod human probably is a sclera cell. We c the reason for the D r. N. N elsoi this point, which I genic in origin, it's of the precise pat! the mouse adenom y .... ir^es r ugo, and monitorin,, ps they may want to ibly be related to V c de these observations il exposure these birth ) consider. One factor 3ns. If this factor has i up in the experience ght or 10 miles frorn > be related to worker sibility that this factor community also had a anomalies in live and s in adults were also jgard to migration, s he population has in in-migration. And I v up environmentally, over the past 10-20 sserved. le and Tropical Medinformation on neural lese defects do have a sily explained? at the last four years yses in the last week, >le but haven't looked raised by Dr. Saracci. > :s in our study, bti-.uered to be more Second, it is a faster s earlier by this route irgency in testing this trials at present and or use in the general rior to its release, nplement the studies npleted by Dr. Frost vestigators undertook . and chemical work.posed to bisfchloro: dose-response effect :ytologic examination st screening, and the ty workers, 30% in r (BCME) workers, rogram. These cytomorning by NIOSH. Philadelphia, P a .): s exposed to chloro- Discussion 479 tt,yl methylether. Our report in 1973 was rather skimpy. We have more ^tails now, anc* * would like to mention two additional observations. At the , 0f 1962, we began a prospective study of 125 chemical workers, of whom et> were exposed in some degree to chloromethyl methylether. Of the 88 c^ers, 49 had moderate to heavy exposure. During the first 5 years, we did ^riodic screening with x rays and symptom questionnaires. The questionnaires P? ^ like some of the animal work reported by the New York University snoUp, that there is a dose-response relationship for chronic bronchitis symp8 s chronic cough, and expectoration. In addition, we looked at smoking '. ,0'ries. Of the workers, 49 were exposed either moderately or heavily to hloromethyl methylether. Thirteen of these men were either nonsmokers or c gjgarette smokers when we began this prospective study in December 1962. The remaining 36 were current smokers; most of them were light smokers, less than one pack per day. During the next 10 years, 11 lung cancers, all oat cell arcinomas, occurred among the total group of 88 workers. First, the lung cancers all occurred among the moderately and heavily exposed workers. Second, six of them occurred in the 13 nonsmokers and noncigarette smokers. A more detailed breakdown shows three of eight nonsmokers, one of two pure cigar and pipe smokers, and two of three ex-cigarette smokers. We thus are comparing a 10-year lung cancer incidence of 46% among nonsmokers and noncigarette smokers against a 14% incidence among cigarette smokers who were current smokers when the observations began. These observations do not look anything like those seen among asbestos or uranium workers. Dr. V. K. Rowe (Dow Chemical Co., Midland, Mich.): It might be of interest to extend the information that Dr. Nelson gave on bis(chloromethyl)ether. We have just finished a study that extended the work done in his labora tory, and this information was reported 2 weeks ago at the Society of Toxi cology. In this study, we found that practically 100% of our rats exposed to 100 parts/109, the same concentration that Dr. Nelson's group used, had nasal cancers that invaded mostly into the cranium. We were very surprised to find that there were no tumors of this nature or others beyond the background when 10 animals were exposed for 6 months and then kept for their lifetime. These results at 10 parts/109 or 1 part/109 indicate a very distinct dose-response relationship that seems to fit the experience even in people. Dr. E. Farber: Dr. Nelson, it's always comforting if the experimental data fit more or less the Human experience. I think this is true certainly in terms of the tumor patterns. One outstanding exception this morning is BCME, which seems to give a very striking incidence of bronchogenic carcinoma, and yet, as far as I know, this incidence has not been observed in rats. Is it true that one never sees oat cell carcinoma in a rat, only squamous or mixed? This point is not trivial because, as I'm sure you're well aware, there is a very urgent need for an animal model. Of course, one possibility is that the cell of origin in the human probably is not the epithelial lining cell but some special cell, perhaps a sclera cell. We don't know whether that cell exists in the rat, which may be the reason for the discrepancy. Do you have any comments on this point? Dr. N. N elson: A s a nonpathologist, I have a simple-minded approach to this point, which I guess comes down to the following. If the tumor is broncho genic in origin, it's helpful to have that information. To expect direct mimicking of the precise pathogenesis is asking too much. I felt that the warning from the mouse adenoma was significant-- not as significant as a bronchogenic cancer, 748 P"7'7'7 480 Annals New York Academy of Sciences not nearly as significant, but still significant. If it had been oat cell n it would have been even more significant, but I think we're quibbling0r0is8inn,' straws. er With respect to Dr. Rowe's statement, I would be very cautious in assu^- that this dose-response result obtained by Dr. Leong reveals a very sharp ^ crease in incidence rates with the dropping from 100 to 1 ppm. These co6 ' pounds are direct-acting carcinogenic agents. I am sure that you will see1" i least trace contamination with DNA. Therefore, to be practical, we should k! very concerned about not assuming that this represents a sharp threshold. 06 D CHEM II University D r. Mancuso: At tt some background summ speakers. N o one really, national environment jn i our industrial chemicals, turing process for the pa potential of the chemical many thousands of chemi ment. The mathematical pa and in combination exp environment convey the to the carcinogenic imp scientists in recent years pointed out the broad \ necessary sensitivity, am substance in experiments Now, the major que cancer interaction betwn cals in the work environ mation effect of sequent ments over the life-spans In the face of these t pational cancer has na problems, relative to 4 carcinogens, are further response. We do knowj carcinogen in a chromp similarly exposed will nd Similarly, we have n migrated from the Soutf the South. Somehow, e of the early years of lit that may induce biochej to carcinogenic agents. It is necessary to k response as a means of more precise identifies! scientists have emphasn In summary, we hs the microchemical envi IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR ORANGE COUNTY. CASE NO: Cl 89-8657 DIVISION: 32 THOMPSON KIMBERLY MOYER, as Personal Representative of the Estate of ROBERT W. MOYER, II, deceased. Plaintiff, v s. DOW CHEMICAL COMPANY, et al., Defendants. _____________________________________ / NOTICE OF TAKING DEPOSITION *DUCES TECUM TO: TO ALL ATTORNEYS ON ATTACHED MAILING LIST PLEASE TAKE NOTICE that the undersigned attorneys will take the deposition of: NAME AND ADDRESS: Mr. V. K. Rowe, c/o Alan Wagner, Esq., Carlton, Fields, Ward, et al., First Florida Bank Building, P. O. Drawer 190 Tallahassee, FL 32302 DATE AND TIME: November 10, 1992 at 9:30 a.ra. PLACE OF TAKING: Offices of Bartelt & Kenyon, 234 North Central Ave., Suite 600, Phoenix, AZ 85004 (602/2544111) upon oral examination before Bartelt & Kenyon, Court Reporters Notary Publics, or any other officer authorized by law to take depositions in the State of Arizona. The oral examination is being taken for the purpose of discovery, for use at trial, or for such other purposes as are permitted under the applicable Statutes or Rules of the Court. DUCES TECUM See Subpoena marked as Exhibit "A" and attached hereto. t ist L>. V?o I HEREBY CERTIFY that a true copy of the foregoing has been furnished to the attorn listed on the attached mailing list by U. S. Mail, this the _1 __day of October, 1992. SCHULER, WILKERSON, HALVORSON & WILLIAMS, P.A. Attorneys for Plaintiff Barristers Building - Suite 4-D 1615 Forum Place West Palm Beach, FL. 33401 (407) 689-8180 c c : Court Reporter BY: Richard D . Schuler FBN 158226 752 MC JR V. DOW CHEMICAL CO., et .1 LIST OF COUNSEL ROGER LUTZ, ESQUIRE Holland & Knight Attorneys for HELENA CHEMICAL COMPANY P. O. Box 1526 800 North Magnolia Avenue Penthouse A Orlando, FL 32802 (407) 425-8500 Fax: (407) 423-3397 and ROGER LUTZ, ESQUIRE Lutz, Webb, Bobo & Baitty Attorneys for HELENA CHEMICAL COMPANY 1 Sarasota Tower, 5th Floor 2 North Tamiami Trail Sarasota, FL 34236 (813) 951-1800 Fax: (813) 366-1603 ALAN WAGNER, ESQUIRE Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Attorneys for DOW CHEMICAL COMPANY & OCCIDENTAL 215 So. Monroe Street, Suite 500 First Florida Bank Building Tallahassee, FL 32301 (904) 224-1585 Fax: (904) 222-0398 DANIEL C. JOHNSON, ESQUIRE Carlton, Fields, Ward Emmanuel, Smith & Cutler, P.A. Co-Counsel for DOW CHEMICAL COMPANY & OCCIDENTAL Post Office Box 1171 Orlando, FL 32802 (407) 849-0300 Fax: (407) 648-9099 PAUL T. REID, ESQUIRE Popham, Haik, Schnowbrich & Kaufman, Ltd. Attorneys for MONSANTO COMPANY and SOUTHERN MILL CREEK PRODUCTS C O ., INC. 4100 One Centrust Financial Center 100 S.E. 2nd Street Miami, FL 33131 (305) 530-0050 Fax: (305) 530-0055 753 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR ORANGE COUNTY. CASE NO: Cl 89-8657 DIVISION: 32 THOMPSON KIMBERLY MOYER, as Personal Representative of the Estate of ROBERT W. MOYER, II, deceased. Plaintiff vs DOW CHEMICAL COMPANY et a l ., Defendants ./ SUBPOENA DUCES TECUM FOR DEPOSITION TO: Mr. V. K. Rowe c/o Alan Wagner, Esq. Carlton, Fields, et al P. O. Drawer 190 Tallahassee, FL 32302 YOU ARE HEREBY COMMANDED to appear before a person authorized by law to take depositions at the offices of Bartelt & Kenyon, 234 North Central Ave., Suite 600, Phoenix, Arizona, on the 10th day of November, 1992, at 9:30 a.m. for the taking of your deposition in this action. You are commanded to have with you at that time and place the following documents: DEFINITIONS As used herein, the term Hdocuments" includes, but is not limited to, both originals and copies of all paper material of any 754 kind, whether written, typed, printed, punched, filmed, or marked in any way; recording tape or wires, films, photographs, movies, or any graphic matter, however produced or reproduced; and all mechanical or electronic sound recordings or transcripts thereof. References to any corporation herein includes all officers, employees, and agents of said corporation. DOCUMENTS 1. You are to produce any and all documents produced by you or at your direction during the course of your employment with Dow Chemical Company or it subsidiaries that pertain to any research, analysis, formulation, study or production of the chemicals 2,4-D, 2,4,5-T, Silvex or any product or substance containing these chemicals or any ingredients used in making these chemicals or any contaminants or dioxins contained in any of these chemicals or their ingredients. 2. All billing records, billed by any entity whatsoever, for professional expert witness services or consulting services rendered by you in connection with litigation against Dow Chemical Company or Occidental Chemical Company pursuant to any consulting services contract or testimonial services contract provided to these defendants or any subsidiary from 1981 through 1992. 3. All documents, including reports, articles, or transcripts, relating to any opinion you have ever formed regarding the cause of soft tissue sarcoma, or the toxicology or health effects of exposure to 2,4-D; 2,4,5-T; Silvex; 2,4,5-TP; or any product or substance containing any of these chemicals. 755 4. All documents relating to every instance since 1981 that you have been employed by a party or his attorney in connection with or related to litigation involving personal injury or the risk of personal injury allegedly caused by exposure to a pesticide, herbicide, or other chemical or substance. 5. All documents relating to any opinion you have communicated or formed since 1981 in connection with any employment or professional services rendered as an expert witness or consultant, including but not limited to: A. Deposition transcripts; B. Contracts for professional services; C . Reports; D. Trial transcripts; E. Correspondence; F. Documents explaining, setting forth, summarizing or relating to any opinion you have formed, the grounds for your opinion, and the facts upon which it was based. 6. Any contract for professional services between you and either DOW CHEMICAL COMPANY, OCCIDENTAL CHEMICAL CORP., or their attorneys, and any document relating to any work or service that you have performed pursuant to any contract (whether oral or written) with the Defendants in this case or their attorneys. 7. All documents provided to you by the Defendants or their attorneys in this cause or that you obtained from the named Defendants in this cause through other lawsuits or consultations. 756 V r tf' WITNESS my hand and the seal of said Court on this day of 1992. CLERK OF CIRCUIT COURT BY As Deputy Clerk RICHARD D. SCHULER Florida Bar No: 158226 Schuler, Wilkerson, Halvorson & Williams, P.A. Suite 4-D, Barristers Bldg. 1615 Forum Place West Palm Beach, FL 33401 (407) 689-8180 Attorneys for Plaintiff 757 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR ORANGE COUNTY. CASE NO: Cl 89-8657 DIVISION: 32 THOMPSON KIMBERLY MOYER, as Personal Representative of the Estate of ROBERT W. MOYER, II, deceased. Plaintiff, v s. DOW CHEMICAL COMPANY, et al., Defendants. ./ SUBPOENA DUCES TECUM FOR DEPOSITION TO: Mr. V. K. Rowe c/o Alan Wagner, Esq. Carlton, Fields, et al P. 0. Drawer 190 Tallahassee, FL 32302 YOU ARE HEREBY COMMANDED to appear before a person authorized by law to take depositions at the offices of Bartelt & Kenyon, 234 North Central Ave., Suite 600, Phoenix, Arizona, on the 10th day of November, 1992, at 9:30 a.m. for the taking of your deposition in this action. You are commanded to have with you at that time and place the following documents: X DEFINITIONS As used herein, the term "documents" includes, but is not limited to, both originals and copies of all paper material of any 758 p. 7 v7 kind, whether written, typed, printed, punched, filmed, or marked in any way; recording tape or wires, films, photographs, movies, or any graphic matter, however produced or reproduced; and all mechanical or electronic sound recordings or transcripts thereof. References to any corporation herein includes all officers, employees, and agents of said corporation. DOCUMENTS 1. You are to produce any and all documents produced by you or at your direction during the course of your employment with Dow Chemical Company or it subsidiaries that pertain to any research, analysis, formulation, study or production of the chemicals 2,4-D, 2,4,5-T, Silvex or any product or substance containing these chemicals or any ingredients used in making these chemicals or any contaminants or dioxins contained in any of these chemicals or their ingredients. 2. All billing records, billed by any entity whatsoever, for professional expert witness services or consulting services rendered by you in connection with litigation against Dow Chemical Company or Occidental Chemical Company pursuant to any consulting services contract or testimonial services contract provided to these defendants or any subsidiary from 1981 through 1992. 3. All documents, including reports, articles, or transcripts, relating to any opinion you have ever formed regarding the cause of soft tissue sarcoma, or the toxicology or health effects of exposure to 2,4-D; 2,4,5-T; Silvex; 2,4,5-TP; or any product or substance containing any of these chemicals. 759 4. All documents relating to every instance since 1981 that you have been employed by a party or his attorney in connection with or related to litigation involving personal injury or the risk of personal injury allegedly caused by exposure to a pesticide, herbicide, or other chemical or substance. 5. All documents relating to any opinion you have communicated or formed since 1981 in connection with any employment or professional services rendered as an expert witness or consultant, including but not limited to: A. Deposition transcripts; B. Contracts for professional services; C . Reports; D. Trial transcripts; E. Correspondence; F. Documents explaining, setting forth, summarizing or relating to any opinion you have formed, the grounds for your opinion, and the facts upon which it was based. 6. Any contract for professional services between you and either DOW CHEMICAL COMPANY, OCCIDENTAL CHEMICAL CORP., or their attorneys, and any document relating to any work or service that you have performed pursuant to any contract (whether oral or written) with the Defendants in this case or their attorneys. 7. All documents provided to you by the Defendants or their attorneys in this cause or that you obtained from the named Defendants in this cause through other lawsuits or consultations. 769 D-'rn O, WITNESS my hand and the seal of said Court on this CLERK OF CIRCUIT COURT BY As Deputy Clerk RICHARD D. SCHULER Florida Bar No: 158226 Schuler, Wilkerson, Halvorson & Williams, P.A. Suite 4-D, Barristers Bldg. 1615 Forum Place West Palm Beach, FL 33401 (407) 689-8180 Attorneys for Plaintiff 761 V 7 7 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR ORANGE COUNTY. CASE NO: Cl 89-8657 DIVISION: 32 THOMPSON ROBERT W. MOYER, II and KIM MOYER, his wife, Plaintiffs, ^ v s. DOW CHEMICAL COMPANY, et al., Defendants. _____________________________________/ STIPULATION FOR APPOINTMENT OF COMMISSIONERS TO TAKE DEPOSITIONS IT IS HEREBY STIPULATED by the undersigned counsel, pursuant to Fla. R. Civ. P. 1.300, that the following parties or the designated agent of the court reporting entity as Notary Publics are authorized to that the depositions as listed to continue from day to day until completed, upon oral examination. 1. Piper & Kirby Court Reporters, Lake Merritt Plaza, 1999 Harrison St., Suite 740, Oakland, CA. for the deposition of Dr. Allan H. Smith on November 3, 1992; 2. Bartelt & Kenyon Court Reporters, 234 North Central Ave., Suite 600, Phoenix, AZ. for the deposition of Mr. V. K. Rowe on November 10, 1992; 3. Larsen & Smith, Inc., Court Reporters, 1325 4th Ave., Suite 1740, Pudget South Plaza, Seattle, WA. for the deposition of David Eaton, Ph.D. on November 25, 1992; 4. City Court Reporters, 5226 State St., Saginaw, MI. for the depositions of Mr. Andrew J. Watson and Dr. Karl L. Krumel on January 6 and 7, 1993; 5. Associated Reporting, Inc., 2 Market Square Center, Suite 940, 251 East Ohio, Indianapolis, IN. for the deposition of Mr. Larry Silverstein on January 8, 1993; 6. Jon-Anne Winstead, Court Reporter, Lincoln Parrish Courthouse, 100 W. Texas, Ruston, LA. for the deposition of Kenny S. Crump, Ph.D. on January 19, 1993; 7. A. William Roberts, Jr. & Associates, Court Reporters, P. 0. Box 21965, Columbia, South Carolina for the deposition of Carl Schultz, Ph.D. on February 3 and 4, 1993; Dated this day of October, 1992. SCHULER, WILKERSON, HALVORSON & WILLIAMS, P.A. Attorneys for Plaintiffs 1615 Forum Place, Suite 4D West Palm Beach, FL 33401 407/689-8180 BY: t j m ) i i h m * - ( :hard D .Schuler, EsqS* Q 158226 CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P.A. 500 First Florida Bank Tower Post Office Box 190 Tallahassee, FL .*32302 904/224-1585 Attorneys, f o r f o w Chemical Co. BY: ATan F/ W^jVier F l o r l o a N o .: 374105 ORDER ON STIPULATION THIS CAUSE having come before the Court on the foregoing Stipulation for the Appointment of Commissioner to Take Deposition, and the Court having been fully advised in the premises, it is thereupon ORDERED AND ADJUDGED that said Stipulation is granted. DONE AND ORDERED at Orlando, Orange County, Florida, this ________________ day of ____________________ , 1992. CIRCUIT COURT JUDGE Copies furnished to: Counsel on attached mailing list 764 MOYER v. DOW CHEMICAL CO., et al LIST OF COUNSEL ROGER LUTZ, ESQUIRE Holland & Knight Attorneys for HELENA CHEMICAL COMPANY P. O. Box 1526 800 North Magnolia Avenue Penthouse A Orlando, FL 32802 (407) 425-8500 Fax: (407) 423-3397 and ROGER LUTZ, ESQUIRE Lutz, Webb, Bobo & Baitty Attorneys for HELENA CHEMICAL COMPANY 1 Sarasota Tower, 5th Floor 2 North Tamiaxui Trail Sarasota, FL 34236 (813) 951-1800 Fax: (813) 366-1603 ALAN WAGNER, ESQUIRE Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Attorneys for DOW CHEMICAL COMPANY & OCCIDENTAL 215 So. Monroe Street, Suite 500 First Florida Bank Building Tallahassee, FL 32301 (904) 224-1585 Fax: (904) 222-0398 DANIEL C. JOHNSON, ESQUIRE Carlton, Fields, Ward Emmanuel, Smith & Cutler, P.A. Co-Counsel for DOW CHEMICAL COMPANY & OCCIDENTAL Post Office Box 1171 Orlando, FL 32802 (407) 849-0300 Fax: (407) 648-9099 PAUL T. REID, ESQUIRE Popham, Haik, Schnowbrich & Kaufman, Ltd. Attorneys for MONSANTO COMPANY and SOUTHERN MILL CREEK PRODUCTS CO., INC. 4100 One Centrust Financial Center 100 S.E. 2nd Street Miami, FL 33131 (305) 530-0050 Fax: (305) 530-0055 765 > '7 ? y RICHARD D. SCHULER, ESQUIRE Schuler, Wilkerson & Halvorson, Attorneys for PLAINTIFFS Suite 4--D , Barristers Bldg. 1615 Forum Place West Palm Beach, FL 33401 (407) 689-8180 Fax: (407) 684-9683 P.A. 766 11 /09 92 10:11 9 1 9 933 1253 CAROLIB -i* "4 SCH IL HAL IL 0 001 I JD: S e l o > 2 . s . M i:. Mm erod paq&s (mcktdmQocwl Le ffl&cU5& CAit t f \ o d U - t 9 f t ~ 9 2 9 - 4 8 / 0 ijf fh & r & a r & a n y . p r o 6 & n r u s v v tfh tfi& tr a r u s r r ta l c f ff m d o c u m & n C . fiard&oftyand irw ia& ip^cw viaU Srnaii. 767 j> m CAROLIB SCHJIL HAL WIL -- - CAROLIB ,1^002 aaN n e a fil *TVen W, KAi_voSN* A M r U. H IC k m a n BRIAN T, BCHER BICHAR9 B. SCH ULCft* WENDY H. WERD JAM ES & . W ILK E S O N . JH . LOUIS L. W IL LIA M S * S O * ftS e C R T IP re fr ervcu T lAt_ L A W V E fl I Vk st Palm B e a c h , F l o b iu a 3340 's n e e N ovem ber; 3 , 1992 TCLFPNONE 4-07-6 8 3 -6 1 6 0 FACSIMILF 4 0 7 - 6 8 4 * 9 5 6 3 ADM INISTRATOR; Ca r o l y n s K a f e r invcstioators: R O B E R T r . O i-E A K GRACE E. SMITH Carolina Library Service/ Inc. 209 North Columbia street Chapel/ Hill/ N.C. 27514 Re: Articles by V. K. Rowe Our file: Moyer v Dow Gentlemen: i Please provide us with the following articles on a RUSH basis. I need them in hand by Monday, November 9, 1992 before noon. Our fax number is 407/654-9683 or our Federal Express No. is 1048-5378-1. Adams, E. M.; Irish, D. D-; Spencer,, H. C.j and Rowe, V. K.., 1941. The response of rabbit skin 2. Schwetz, B.A.; Norris, J|. M. t Sparashu, G. L.; and Rowe, V. R.* Gehring, P. J.; Emerson, J. L.? and Gerbig, C. G* 1973 Toxicology of chlorinated dibenao-p-dioxins. Environ Health Perspect no. 5:87-99. Thank you. Dee Welchman, Secretary to Richard D. Schuler via Facsimile Transmission 768 P-777 11/09/92 10:12 9 1 9 933 .1253 CAROLIB ____ SCH WIL HAL WIL [g]003 and is r of cases up fo r ^ p i^ / jV X ) 7T R I A L H YG IE N E SECTION `-Om es u o orf vith n a r. Jdency to al bena^ rstioii fg ertha S' f '- `eiy, in ^ tely tfie ion the*iort her. " la jo rity orkm en's St r S +1 ,,remote und tiiougW ,"b^ W csnciremg indurfrial hyPi""** TJot-BtfiSi*sn6B,dn"*w*"fter*o,,'ltarlen- s* fJ jo r wtffe drofal com- ffSJLtm '**t9cL2*"**^' . -fr.rt-k&diie*o!sslopne*hvOnl .Htur* The Editorial Commrttee will **ere5s* its boil judgment in soIocHng for pubIlcotion the moferia! which preiaofx most exactly the factor* affecting indunri-at health and development! for control cf potentially injurious ex posures. The editor* may net concur in opinions expressed by the author* but will endeavor to assure authen ticity of fact. TKe Science, the Law and the Economics of industrial Health ^vantag^g '0 Indus, ti hereda. Of the lieh does s e le c tio n obtained it below , e, where, tics, the from 0 a t offers form - o f ases, the a fibrous :o f some ha si *rhi<u. its e to an tire su riar with, ad par s also injecting red ph ythe uEL- Of th e ated b y the out re hands f It fr- S- 2bfe* tpe.rimemai 1JSI.LQS.jrurTnregisegt Bosnie, fer Idurg,,lac., t lain-nou ss a t die & a. lie Injsc- Ciildrea. aiment of Mpa-i.InSjeeen-, iMt=' "of In- L t i' V. Mosby ^nKitnn fan, Oct, i. JA N U A R Y , 1941 Section 1 CONTENTS THE RESPONSE O f RABBIT SKIN to COMPOUNDS Reported to have Coused Acueform Dermatitis----- Sy E M. ADAME D. D. IRISH, H, C. SPENCER, end Y- K. ROWE 1 GLYCEROL, Effoets upon Rabbits ond Rats----- ....---By WILHELM DEICHMANN UHT and- LIFE--Some Glimpres into the Future--, , Sy SAMUEL - H1BBEN S 6 VENTILATION PROBLEMS in industrial Hygiene------- 11 ByP.W.GUMAER NEWS and NOTES___________ -- ---------------- -...-- M O FFICIAL P ublication- o f th e A merican- Industrial Hygiene A ssociation-, W a b s &ss A_ C o os, Chicago, TIL, President; D onald E. CUMMiNes, D enver, Colo., President-Elect; Gordon C . S akroip, D etroit, M idi., Secretary; Theodors Ha ic e , Philadelphia, F a., Treas urer. Published in January, A p ril, July, and October o f each year as the Industrial H ygiene Section o f I ndus trial M edicine. Editorial Committee: H. H. Schrenk, P hD , Chairm an PROS'- Theodore' Hatch Ailen D . Brandt, S cD . Prop. P h tt.t p Drinker J. Wm . Fehnhl Ws l G . Frederick, P hD . Lsroy IT. G ardner, M P . D on-D . I rish , P k D . A , G- Kammer, M D. Wiliah b Ma c h is, MX). C. P . Y aglou Editorial Offices: 540 North M ichigan A v e , Chicago, Illinois. Managing Editor: A. D . Cloud, M anaging Editor, I ndustrial Medicine. The Response of Rabbit Skin to Compounds Reported to Have Caused Acneform D erm atitis E . M . A dam s, D . D . I rish, H . C . S pences, . an d V . K . R owe, B ioch em ical Research Laboratory, The Dow Chemical Company Midland, `Michigan T H O SE Of u s a cq u a in ted w ith, th e in d u str ia l field h a v e recogn ized th e n eed o f a n exp eri m en ta l m ethod, fo r stu d y in g sh in irritation . W e w ou ld p rofit g r e a tly b y k n ow in g th e p o ten tia l sk in hazards o f a su b stan ce b efore it is p u t in to u se; w e w o u ld b e a b le to ta k e proper p recau tion s in th e ch eap est an d m ost satisfactory m anner and m any u n d esirab le in cid en ces cou ld b e avoid ed . In th e .lite r a tu r e th ere a re m any in stan ces o f irrita tio n te sts u p on th e sk in o f an im als, b u t ap p aren tly th e r e h as n o t b een a com p rh en sive stu d y. In an attem p t to develop an ex p erim en ta l m ethod, w e began about six years ago to stu d y th e resp on ses o f rab b its1 sk in to variou s ty p es o f sub sta n ces. W e con sid ered th e p ossib ility- th a t if enough w ere k now n o f th ese resp on ses to d ifferen t typ es o f com pounds, p articu larly to th ose w ith w h ich th ere h a s b een con sid erab le hum an exp eri en ce, th en th ese resp on ses cou ld b e organ ized to form th e b asis o f an exp erim en tal m ethod. A cn eform d erm atitis, ch aracterized b y. su ch lesio n s as fo llic u litis, com edones, n od u les, p ap u les, p u stu les, an d inflam m atory changes, h as b een r e p orted arisin g from exp osu re to q u ite v a ried sub stan ces in clu d in g p etroleu m o ils and greases, sh a le o il, p araffin , zin c oxid e, . ch lorin e, tars, p itc h e s, c h lo r in a te d d ip h e n y ls, c h lo rin a ted ..naph th a le n e s, and. cru d e c h lo rin a ted p h en o ls.1* * s- * r* S. 9, 19. 15. IS, 14. 15. IS, IT. IS, 25. 29. 22. 23. 2S, 2T, 23. 23. 33. 22. 33. 34. K T he recen t occurrence in th is country of such an a cn efo rm e r u p tio n ,4i 9;,,14 18 so m etim es c a lle d "eh loraen e," h a s attracted p articu lar in terest, an d v r n D'Htf 11/09/92 Page 2 10:12 9 1 9 933 1253 CARpLIB brousTQTAT, IVI" cine I n d u s tr ia l H y g ie n e S e c tio n SCH WIL HAL IVIL L]004 J a n u a r y , 1341fc VOL- A., `'v. - We included in our animal -studies five types of substances known to cause the reaction. Today w e wish to describe the,-tmusual response of the rabbits' skin to these materials and to consider its pc ile significance^ E xperim ental T art IN OUR experiments, materials have been ap plied to the inner surface of the ear of albino rabbits ?-nd to the shaven belly. The undiluted jpatoriaig have been used as w ell as solutions of various concentrations in olive oil, paraffin oil TT. S. P., propylene glycol, ethanol, and water, lib era l applications w ere made on the ear w ith out any covering. The applications on. the ab domen were made in a small cotton pad which was covered by a large bandage of filter cloth held in place by adhesive tape* Applications were TPftdA once a day, five days a week, for four weeks or until a marked reaction resulted. The responses obtained follow ing the applica tion of same hundreds of test substances are easily arranged according to type. Certain of the strongest irritants produc a rapid destruction of the tissue (necrosis), without the skin having an opportunity to show an active response. Irritants w ith m ilder and slower actions than this have some effect upon the tissues, as a result of which w e see certain responses on the part of the tissue. M ost irritants have resulted in responses in the rabbits' skin w hich tend to develop rapidly and to subside in a short time. T relatively rapid response, which w e have tween .thes, and some overlapping occurs, <. vision was rather easy and has been very useful. Least detectable epithelial hyperplasia: This degree of response is m anifest -as an increased w prominence ;of the hair follicles on the inside of the ear. The little dots that one sees on the inside of the ear sim ply become slightly larger. After exposures are ended this enlargement regresses in a short tim e, leaving the skin apparently normal This degree o f response is commonly seen as part of a m ild sim ple irritation which is maintained by repeated; exposures. Thus far w e have been unable to attach a particular significance to this intensity of reaction. V ery slight epithelial hyperplasia: This reaction appears on the ear as a slight enlargement of the hair follicles, which protrude and become bare, K causing the-ear tq feel rough. The thickness of the ear m ay be increased. A very slight scaly exfoliation m ay accompany this degree of re sponse, but seldom is there any detectable hyperemia or hair loss. On the abdomen one sel dom sees any gross evidence of hyperplasia. Slight epithelial hyperplasia: In this reaction the ear increases in thickness to about twice normal and feels slightly stiffened and "leather- like." There is some hyperemia, scaly exfoliation and hair loss. The hair follicles become slightly enlarged, raised and hard. On the abdomen there may be a slight thickening of the skin and an ex foliation, but enlargment of the follicles is not ! apparent. Moderate epithelial hyperplasia: This reaction a result they fc Exfoliation at later flaky? anc kair follicles a th&tium and 1 siderable exfo large m asses c Ing pits that r On the abdc lium cracks ai ions of a caf cheesy, foul-sr and comes ofi eVin beneath. The exfoliat at first, w hief complete hair This prolife progress only peated applies slowness and is to be emph hyperplasia u borhood o f tw foliation arour and hyperem: Although v and belly, the in the'm ost sa reactions are follicles are i donnnal skin ritation. termed a simple irritation or reaction, m ay in consists of a thickening of the ear to 3 to 4 times H istology clude, depending upon the severity, any of the following: hyperemia, congestion, inflammation, exfoliation, edema, blistering, sloughing, exuda tion, erustation, necrosis, induration, hair loss. Microscopically one m ay see hyperemia, conges tion, hemorrhage, edema, blistering, leucocytic infiltration, sloughing, and various degenerative changes. normal as a result o f:which it is quite stiff and leathery. The follicles on the ear become moder ately enlarged, raised and hard, causing the sur face of the;ear to feel lik e the coarsest of sand paper. A fter a tim e the protruding hard masses can be easily expressed by the finger-nail or by bending the ear. At tim es the enlarged follicles are not apparent until after considerable exfolia TV/TICROSC 1 V 1 ing 10 im b ed d in g , a: T h e slig h ts a v ery slig h t: and th e d ev p a p illa e) o f stages of m o One type of response has been observed, how tion has occurred. A moderate hyperplasia is ever, which requires a somewhat longer interval usually accompanied by a slight to moderate degrees of th ep ith eliu m . in which to become apparent, and which has a hyperemia. Exfoliation of a granular or scaly type w ard from t much more prolonged course. This latent reaction is of moderate intensity and hair loss is nearly cartilage o f is a proliferative response which m ay possibly complete. A fter a number of weeks the ear is sp reads outw occur in any of the structures of the skin, but that com pletely denuded of hair, slightly pitted, with ^ g u lfin g ha: about which w e are particularly concerned now a slight or moderate hyperem ia and possibly some p a te n tly the; is epithelial hyperplasia, w ith its resultant thick ening of the skin, follicle enlargement and sequellae. Naturally responses vary to some extent, and exfoliation.; The abdominal skin may show a greater sim ple irritation than does the ear; hy peremia, ediema, and even sloughing and exuda tion have occurred. Hyperemia is usually main ^ccotapanyh gastion , ev er O ncocytic ir L ater th e we have observed various combinations of these tained during the course of thickening. The ab e P s a n d th o reactions, depending upon the substances applied dominal skin finally becomes hard and stiff, fol to the skin and the intensity of action. lowed by a marked scaly and granular exfoliation, becom e m qr to k era tin iz For purposes of classification w e have arbitaxily which persists for weeks. f-yexs 0 f t h e divided the proliferative response into the follow Severe hyperplasia: This reaction is usually tayex m ark e ing five groups according to intensity: preceded b y a marked simple irritation, including ^oasses o f h 1. Least detectable. . Very slight. 3. Slight. even necrosis; however, there may be only hyperemia, and edema. As a severe hyperplasia i- progresses, a marked hyperemia is evident until i- sectio n o f s of p a rtly ke " ro w n ofr z --Moderate. obscured by the thickened epithelium. The thick- jk 5. Severe. n ess-of tiie ear is increased to many tim es normal, W hile there are naturally no sharp breaks be ears at least 1 cm. thick having been formed. As oorneum . A -U ndergoes < 11/09/92 10:14 919 933 1253 CAROLIB ->->- SCH IL HAL IL 1^1005 Industrial Hygiene Secon In d u st r ia l M edicene Page 3 aceu-r*. s K Thk in crease i inside 0f the in si^ ;er- A f t^ re g re ss^ ly normal P art USfTTitfli ^ aave b e^ ice to thjg is reaction f erit of l ome har^ t ickness of r ight scaly . ee of re, t detectable |: n one $el- r lasia. f. s reaction out twice "leather- f spoliation, ! :e slightly f_. mer '-ere | nd ex- !;_ tes is not | s reaction r-.. to.4 tim es : stiff .and " ae moder- % l the sur- k t of sand ? rd masses v tail or by j. i follicles >" e"exfolia- ] fplasia is i moderate i. scaly type is nearly i. he ear is i. rted, w ith r ibly some [ show a ear; hv- | id exudk- | lly m ain- &. The ab- |stxff, fol- j; rioliation, i i" s m 3l,illy ;. including l be only perplasia .ent until r, h e thick- |-s normal, | +hey become very stiff, hard, and heavy. hard plugs that may be expressed. Completely a result w j a granular consistency, , engulfed follicles and glands are destroyed as the w &and persists for months. The enlarged ; hyperplastic epithelium is keratinized and thrown - later je buried under th e thickened epi- off. d become apparent only after con- The sebaceous glands have seemed to be in ibeliu fo lia tio n has occurred. From them active. One sees them, apparently normal, being fld e ^ tg se s of keratin m ay be expressed leav- engulfed by proliferating epithelium. Some glands, large _i may reaek 2 to 3mm. in. width. of normal size and appearance, are seen opening ini P1? abdomen the hardened mass of epithe- : into the pits or cysts; others are seen w ith their 0U^peks and lifts off in large pieces like por- ; ducts extending through large masses of kera livu ^ a caSt. Often beneath these is a soft, ; tinized epithelium. oUi-smeLIing material, which soon dries Sections taken at a late stage show an atrophic cbee57' revealing a markedly exfoliating ; or very slightly thickened surface epithelium and fyn beneath- . numerous large pits surrounded by slightly hy " EL exfoliation often has a granular consistency : perplastic epithelium. The corium m ay still be ^st, which later becomes flaky. There is a i thicker than normal. atmolete hair loss. U ltim ately there is a tendency for the pits to ^ ^ is proliferation of th e epithelium seems to broaden out and become shallower, and one sees oress only to a certain extent, even w ith re- a very irregular atrophic epithelium. SaSdappIications of the provoking agent. The ?k>wness and persistence of this latent reaction - to be emphasized. The maximum of a severe hyperplasia usually has occurred in the neigh borhood of two weeks, the largest amount of ex foliation around four weeks, and a scaly exfoliation and hyperemia have persisted for months. Although w e make exposures upon both ear and belly, the. skin of the ear appears to respond in the m ost satisfactory manner. There the m ildest reactions are more apparent and the enlarged are more easily seen. As a rule the ab D iscussion T HERE are certain points which Indicate a relationship between this reaction observed In the rabbit and the acnefoim dermatitis of man. First, th e reaction in the rabbit was produced by 5 types of substances known to cause an acneform dermatitis in man. They w ere chlorinated di phenyls, chlorinated naphthalenes, chlorinated diphenyloxides, crude chlorinated phenols, and petroleum oils. A few other types of substances have produced the epithelial hyperplasia,butthere dominal pkin shows a more marked sim ple ir has been no exposure of these on man. Wacker ritation. and Schmincke2* reported the experim ental pro duction of epithelial hyperplasia w ith various oils, H istology fats, and paraffin. Sachs,23 and others, apparently, M ICROSCOPIC ex a m in a tio n s w ere m ad e u s have produced the identical epithelial hyperplasia in g 10% fo r m a lin a s fix a tiv e , p araffin fo r in rabbits w ith a number of dyes. In his review im bedding, and h e m a to x y lin -eo sin a s sta in . of the pertinent literature, Sachs states that the The slightest hyperplastic response is shown by most common dermatosis arising from exposure to a very slight increase in thickness of the epithelium aniline ..and, coal tar dyes is eczema; however, and the development of sm all projections (like: w arty growths and acneform derm atitis have also papillae) of but a few cells in size. The early occurred- Thus it appears probable that the de stages of more severe responses show increasing; velopment of an outstanding hyperplastic response degrees of thickening of the surface and follicular1 of the rabbits' skin is specific for those substances epithelium. Numerous projections reach down capable of causing an acneform dermatitis in man, ward from the surface epithelium, nearly to the. and possibly, the related papular and warty erup cartilage of the ear. The follicular epithelium; tions. spreads outward and downward, often completely: Secondly, by gross and microscopic examina engulfing hair follicle and sebaceous glands. A p-; tion, the enlarged follicles produced in the rabbit parently there is also a hyperplasia in the corium .: resemble the comedones, nodules, and cysts of the Accompanying this hyperplasia, one m ay see con dermatitis in man. In both cases there is a rela gestion, even occasional hemorrhages, edema, and tively large pit or cyst whose wiafls are composed leucocytic infiltration. of epithelium and which contains varying amounts Later the rate of proliferation apparently les-; of keratinized epithelium, and at tim es hair, hair sens and those changes resulting in keratinization; follicles, and debris. become more evident. As those changes leading: Tn b o th th e ra b b it an d in m an th e r e is h y p er to keratinization progress from the lowermost; p la sia o f th e e p ith eliu m . P r o life r a tiv e ch an ges layers of the epithelium , which constitute a basal; h a v e n o t b e e n str e sse d in d escrip tio n s - o f th e layer markedly displaced from the original, large h u m an rea c tio n an d p ro b a b ly h a v e n o t b e e n seen Classes of material- are thrown off. Thus in one to a g rea ter e x te n t b eca u se tissu e s w e r e ta k en section of abdominal skin w e see a thick layer a t r e la tiv e ly la te sta g e s o f th e rea ctio n . T h ere are Oj- partly keratinized and degenerate tissue being; rep o rts o f in crea sed n u m b ers o f m ito ses a n d o f thrown off above a flat, normal-appearing stratum 1 th ic k e n in g o f th e r e te M a lp ig h ii. 3. 2*. 30. 34. as P ro s- comeum. At th e hair follicles most of the tissue iA _......3 .1 - 1___ _j_i.. i __ s*AX- se r W h ite34 d escrib es a c a n th o sis in th e "p rim ary --------T-77 -----S.7___________ __ i __________4-1^ 11/09/92 10:15 0 9 1 9 933 1253 CARpLIB SCH WIL HAL 'IL 1^1006 fyga 4 Induse - Medcese I n d u s t r i a l H y g i e n e S e c t i o n J a n u a r y , l $ 4i Voi~ 2 Nc production of oil folliculitis to be the chemical irritant causing auxetac cell growth. The ability of tar to cause active m itosis is w ell known. n Bomemann's3 first case, examined at a late stage, neHes par le triehlorcnaphthalne, Annotes "d m d. tjj L de crim in, 14, 539-544 (1934). .^ \ 9. F ulton, W . B , and J. L . M athews: A Preliminary [ Report of the Dermatological and Systemic Effects cf Exposure to- Hexachloro-naphthalene and Chlordiphenyi, j- showed m ore' m itoses than, normal and slight Penna. Dept. Labor, Special BulL No. 43 (1936). i thickening; but in bis second case, examined at an earlier stage, the thickening of the epithelium was much more marked. Although m ention is often made of sebaceous 10. Herxhetmer, E .: TTeber Chlarakae, M nchen, Med. ' W ochnschr. 46, 278 (1899). _ 11. Jambon: Treatment of Eczema with Coal Ter, 'Ann. Z d e derm , e t de syph., Jan, 1909, page 22. Quoted by JL Prosser;White, The'Dennatergoses, H. K. Lewis and Co, ' cysts in descriptions of the acneform dermatitis, L td, London, 1934. only two instances w ere found of the specific men tion of sebaceous glands in descriptions of the microscopic picture. Jones and Alden12 reported 12. Jones, J. W ,, and BL S. Aeden: An Acneform Derm. ! atergosis, Arch. D erm , and Syph. 33, 1022-1034 (1936). 13. IgwtN, L.: Weber aQgemene und Hautvergiihmg : durch Petroleum, Virchow's Arch,, f. Pathol., A natom ie -u. . slight edematous changes in a few glands they Phys. 112, 35-69 (1888). t saw; Curgil and Acton6 said that the sebaceous glands w ere unaffected. Bomemann3 felt that the cysts were of sebaceous origin but admitted the difficulty of proof, and his description shows them 14. McEwstn Acne due to Tar, J. Cut. Dis. 35, 853 ; ( 1917) . , 15. Mackenzie, S.; A Case of Tar Eruption, B rit. J. D erm . 10, 417 (1898). 16. Maters, M. IL, and M. G-. Silversesc: Skin Condi to he essentially epithelial structures. tions Resulting from Exposure to Certain Chlorinated These facts, together w ith our experim ental re Hydrocarbons, J. Indust. Hyg. & Tax. 20, 244-258 (1938). sults, indicate that the so-called "sebaceous cysts7* of the acneform dermatitis in man are directly 17. Ncolas and J. LacaSSagNB: Un cas d'acn chlori- que. Bull. sac. frang. derm at. e t syph . 36, 223 (1929). 18. NCtrER-MoH, S., and M. Grau-Bahbera: Contribu the result of an epithelial hyperplasia. -Their con tion a l-tude des poildlodermies k propos de trois css de tent of sebaceous-like m aterial is probably due to the occurrence of inflammatory and degenera tive changes in th e mass of epithelial tissue. Of course, the retention of sebum may also occur, toxidermie folliculaire et pigmentaire d'origine esog&ne, Ann. d derm, et de syph. S, 379-401 (1934), 7th senes. 19. Ogston, O.: On the Local Effects of Crude Paraffin, Edin. M ed. J . 17, 544-547 (1871- 2). 20. Oepekeeim, ML: Affections of the Shin Caused by and influence the picture to some extent, but this Occupation and Profession, The Medical Press 169 (N ils). appears to be a secondary reaction. Bacterial in fection m ay be a factor influencing the nature of the reaction. 66-69 (1924). 21. Page, C- G,, and L. D. BushnelL Oil Folliculitis, J. In d vst. H yg. S, 62-75 (1921). 22. Frdon, H. S.: On a Eitherto Undescribed Form of C onclusions Skin Disease, Lancet, 1874, ii, 724-5. 23. Pusv, W. A.: Casa, of Acne, J. C at. D is. 26, 426 THEBE have been a number of hypotheses con ( 1908) .; / 24. Boss, BL C., and J. W. Cropper: The Problem of file cerning the formation of this acneform erup Gasworks Pitch. Industries and Cancer. The J. EL Mc- tion in man. ^ 35 W e feel that evidence shows this Fadden Researches, 1913. Quoted by R. Prosser Wettb, acneform derm atitis to be the visible response of 'the skin to an irritant acting upon it from the exterior, and that this response takes the form of The Dennatergoses, H. K Lewis and Co, Ltd., London, 1934, 25. Saces, O.: Ktnische und ezparimentelle Untersochungen ueber die Einwirkung von Anflinfarbstoffen auf die first epithelial hyperplasia, second inflammatory menschliche und Tierische Baut, Arch. f. D erm , u. Syph. and degenerative changes, and finally regenera tive processes. And in conclusion, it is possible that this ap parently unusual response of the rabbits' skin of lie , 555-634 (1913). 26. Scott, A.: The Occupational Dermatoses -of. the Paraffin Workers of the Scottish Shale Oil Industry, Bt%. M ed. J .\2, 381-385 (1922). , 27. SizAEE, P. Vallert-Radot, and Benoist: Mlnose fers us an experim ental method which w ill in de Riehl, bouton huSe, byperkratose folliculaire chez dicate the ability o f substances to produce an un ouvrier toumeur sur mtaux, Bull. soc. franc, de. acneform derm atitis in man. derm at. et de syph. 34, 139-143 (1927). 28. Sulzberger, ML B,, A. R ostenberc, Jeu and J. J. Bibliography; Seer: Acneform Eruptions, Jv`. Y . S tate J. M ed. 34, 899-908 ( 1934) . : 1. Bettmanni "Chlor-akne," eine besondere Form von 29. Telekn: Die Femakrankheit, K lin . W chnschr. 6, professioneller Hauterkrankung, Dent. m ed. Wochtischr. 845-848 (1927); 6, 897-901 ( 1927); 7, 214 (1928). . 27, 437-440 (1901). 30. Totsusa, R.: Study of the So-called "Oeteratee,1* 2. Blascbso: D erm atol, Z e a . 18, 70-72 (1911). Produced by the Industrial Use of Mineral Oil and Tur 3. B ohnemann, W.: Ueber die Histologic der Chlor- pentine,; Jap. ZeH. f. D erm . u. UroL 17, 395 ( 1917). Ab- . sene, Arch. f. D erm , u. Syph. 62, 75-89 (1902). stracted;in B rit. J. Derm atol. 29, 227-228 (1917). 4. Bustler, "M. G-.: Acneform Dermatosis Produced by SI. Tuhaine, Solents, Mntrel, and Avrrun: CiqU- Ortho-(2-iChloropbenyl) Phenol Sodium and Tetrschlor- ante-quatre cas de dermatitis par trichloronaphfhalinei phenol Sodium, A rch , Derm , and Syphil. 35, 251-254 Bull. soc. frang, de derm , et dm syph , 41, 265-26S (1934). (1937). 32. T urner, J. A.: An Occupational Dermatoconicisis 5. CouKrois-SufTEr, T ouraine et MenSteel: Etude among Zinc Oxide Workers, U. S. Public Health Reports sur l'intozication professionnelle par le triohloro-naph- 36, 2727-2732 (1921). halene, A nnates d e m id , leg. de crim in. 14, 422-427 33. Wards, W.: A Case of Oil Folliculitis, B rit. J. D er (1934). m atol. 12, 212-213 ( 1900). 6. Curgil, D. F,, and H. W. Acton; Jute Dermatitis, 34. White, R. Prosser: The Dennatergoses, BL EL Lewis Indian J. M ed. Res. 12, 257-260 (1924-5), and Co, 1L td, London, 1934, jpp. 195- 241. 7. Dutton, W_ F.; Petroleum Dermatitis, M edical Rec 35.- Occupation and Health, international Labour Office, ord, 140, 550-552 (1934). Geneva, 1930. See Chlorine, Coal Tars, Paraffin, Petrol 8. Duvom, M , Apropos des dermatoses profession- eum Oils, Pitch, Shale Oil Industry. * l --l g etterin i ver men, auc Iished certain c corded i T he T on /~'L Y C VJT ter ally cute albino ra Repeat aqueous htm tf of Re o 5 5 5 5 a 5 10 10 10 10 10 1C 1( It It S c h u l e r , Wi i k e b s o n , Ha l v o h s o n 8 c Wil l ia m s PROFESSIONAL ASSOCIATION A TTO R N EY S AT LAW ALAN FIEDEL STEVEN W. H ALVO R SO N * AMY U. HICKMAN BRIAN T. SCHER RICHARD D. SCH ULER* WENDY H. WERB JA M E S D. W ILK E RS O N . JR,* LO U IS L. W IL L IA M S * BARRISTERS BUILDING 1615 FORUM PLACE W e s t P a l m B e a c h , F l o r i d a 334.01-2382 TELEPHONE 4 0 7 * 6 8 9 - 8 1 8 0 FACSIMILE 4 0 7 - 6 8 4 - 9 6 8 3 A D M IN IS T R A T O R : CAROLYN SHAFER IN V E S T IG A T O R S : ROBERT F. BLEAK GRACE E. SMITH B O A R D C E R T IF IE D CIVIL TRIA L LAWYER wovembe r 3, 1992 Carolina I.ibrary Service, Inc. 209 North Columbia Street Chapel, Hill, N.C. 27514 He: Articles by V. K. Rowe Our file: Moyer v Dow Gentlemen: Please provide us with the following articles on a RUSH basis. I need them in hand by Monday, November 9, 1992 before noon. Our fax number is 407/684-9683 or our Federal Express No. is 1048-5378-1. 1. Adams, E. M . ; Irish, D. D . ; Spencer, H. C . ; and Rowe, V. K . , 1941. The response of rabbit skin to compounds reported to have caused acneform dermatitis. Ind. Med. Ind. Hyg. sec. 2:1-4 2. Schwetz, B.A.; Norris, J. M . ; Sparashu, G. L.; and Rowe, V. K . ; Gehring, P. J.; Emerson, J. L . ; and Gerbig, C. G. 1973 Toxicology of chlorinated dibenzo-p-dioxins. Environ Health Perspect no. 5:87-99. Thank you. Very truly yours.,. Dee Weichman, Secretary to Richard D. Schuler Via Facsimile Transmission 9 SCHULER, WILKERSON & HALVORSON, P. A. 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" y \ M ^ C ^ Q^cX lO- ' ^JLa T C - D P CxVL 791 g ^ yf '^/:2c y v u i- . , f^-o-iL- ' .^ c A 'P */?=*- & J & ---- - w 0:o+ c r^ \ " ///'? 7 ^ fe .O ^ L y / jC L ^ ---------------------------------- ,,. f e f ^]0 CLS) oii& K - 6~\ ^ - ^ L < L kr^u ^u ^r -C < cj j J l O<A '\ ^ C jVj&-&- ^ ^ iU ^ ~ ~ p , s-u h H iA . ^ - * y , C ^S ^L ^f 1^0--4. - y s rio c ^ -^ e 'u j^ -^ -/^ t// 192 r r- rr VvAvA/VLiM/ 22 ,f~ P / f 7 > X -- ~ > t & jz ^ ----- Y~s ^ kJ 7 , fr V -(J *n3 <D Ul CIPPOLONE V LIGGETT GROUP INC MOYER V DOW 08/03/92 14:20 ^ p407 684 9683 SCHULER. W&H CAROL IB 1^] 002 S c h u l e r ,W i l e e r s o n ,H a l v o k s o n <Sc W i l l i a m s PROFESSIONAL ASSOCIATION A T TO R N EY S AT LAW ALAN HE^EL. S T E V E N W. H A L V O d iO u ' A M Y II. H 'C K M A N BRIAN T S C ^E R P I N A R D O . S C H U L ITR * W END Y H. W ERO J A M E S D. W IU K E P 5 0 N . J R LO U lG L. W IL L IA M S * B O ARCs Ot:RTjreo CWII. TSiAt ; AA<Vft B A R R I S T E R S BIJH OING IC/5 FORUM PLACE 3 0 4 2W e s t T a l m B k a c h , K l o h i d a oi-ana TFI.PM(.iNE-a0/*i5SSBI80 Facsim il e 4 0 7 -G6 4 < 9 6 6 3 ADMINISTRATOR! CAROLYN SNAFER investigators: ROBERT F. BLEAK G R A C E E. S M IT H August 3, 1992 Carolina Library Service, Inc. 209 North Columbia Street Chapel Hill, NC 27514 Dear Sir or Madam: l It would be greatly appreciated if you could obtain the following items on a rush basis and fax copies to this office; 1. "Risks to Human Health Associated with Exposure to Pesticides at the Time of Application and the Role of the Courts", 1 Villanova, Environmental Law Journal, 355, 1990, authors - Brett & Potter. 2. The modern status of landlords' tort liability for injury or death of tenant or third person caused by the danger ous condition of the premises, located at 64 ALR 3d 339. 60 U.S.L.W. 4703 If you have problems in obtaining copies of any of the above, please contact me at (407) 689-8180. My fax number is (407) 684-9683. Thank you. dith Crady Spano, CLA ,egal Assistant to RICHARD D. SCHULER RDS/js 798 V- w-jr The United States Law W eek June 23, 1992 THE BUREAUOFNATIONALAFFAIRS, INC, WASHINGTON, D.C, Extra Edition No. 1 Supreme Court Opinions Volume 60, No. 50 Opinions Announced June 24, 1992 The Supreme Court decided: ATTORNEYS-- F e e s Enhancement of lodestar amount of attorneys' fees for contin gency is not permitted under typical federal fee-shifting statute, which, like Solid Waste Disposal Act and Clean Water Act provisions at issue in this case, authorizes award of reasonable attorneys' fees to prevailing party. (Burlington v. Dague, No. 91810) ...................................L...............Page 4717 SCHOOLS AND COLLEGES-- Church and S ta te Inclusion in public secondary school graduation ceremony of prayer delivered by member of clergy who is selected by school officials and instructed to compose non-sectarian prayer consti tutes governmental coercion of students to participate in reli gious exercise in violation of First Amendment's Establishment Clause. (Lee v. Weisman, No. 90-1014) ............. Page 4723 CRIMINAL LAW AND PROCEDURE-- S p ee d y Trial Presumptive prejudice to defendant's ability to defend against criminal charges, arising from delay of eight and one-half years between indictment and arrest, when considered with facts that 'ay was extraordinarily long, that it was due to government's iligence in locating defendant, and that defendant asserted right to speedy trial promptly after learning of charges, requires dismissal of indictment under Sixth Amendment right to speedy trial. (Doggett v. US., No. 90-857)..................... Page 4741 PRODUCT SAFETY AND LIABILITY-- P re-em ption Section 5(b) of 1965 Federal Cigarette Labeling and Adver tising Act, which provides that "{njo statement relating to smoking and health shall be required in the advertising of any cigarettes the packages of which are labeled in conformity with the provisions of this Act," does not pre-empt state law damage actions against cigarette manufacturers based on their cigarette advertising and promotional activities; Section 5(b) as amended in 1969, which provides that "[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion oF' lawfully labeled cigarettes, pre-empts state common law claims based on failure to warn, to extent such claims require showing that post-1969 advertising or promotions should have included additional or clearer warnings, and also pre-empts fraudulent misrepresenta tion claims alleging that manufacturers neutralized federally mandated warnings in advertising and promotions, but does not pre-empt claims based on breach of express warranty, on fraudu lent misrepresentation by way of false statements and conceal ment of material facts in advertising, promotions, and other channels of communication, and on conspiracy to misrepresent or conceal material facts concerning health hazards of smoking. (Cipollone v. Liggett Group fnc.. No. 90-1038) .. Page 4703 Full Text of Opinions No. 90-1038 THOMAS CIPOLLONE, INDIVIDUALLY AND AS EXECUTOR O F THE e s t a t e o f ROSE D. CIPOLLONE, PETITIONER V. LIGGETT GROUP, INC., ET a l . ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 90-1038. Syllabus A rgued O ctober 8, 1991--R eargued J a n u a ry 13, 1992--Decided Ju n e 24, 1992 Section 4 of th e F ederal C igarette L abeling and A dvertising A ct {1965 Act) required a conspicuous label w arning of smoking's h ealth haz a rd s to be placed on every package of cigarettes sold in th is country, w hile 5 of th a t Act, captioned "P reem ption," provided: "(a) No statem en t relating to sm oking and health, other th an th e [4] s t a t e m e n t . . . shall be re q u ire d on any cig arette package," and "(b) No [such] s ta te m e n t. . . shall be required in th e advertising of any cigarettes th e packages ,of which are labeled in conformity w ith" 4. Section 5(b) was am ended by the Public H ealth C igarette Smoking Act of 1969 (1969 Act) to specify: "No requirem ent or prohibition based on sm oking and health shall be imposed under S tate law with respect to the advertising or promotion of any cigarettes th e packages of which a re [law fully] labeled." P e titio n e r's com plaint in his action for dam ages invoked the D istrict Court's diversity jurisdiction and alleged, inter alia, th a t respondent cig a re tte m a n u fa c tu re rs were responsible for the 1984 death of his m other, a smoker since 1942, because they breached express w arranties contained in th e ir ad v ertis ing, failed to w arn consum ers about sm oking's hazards, fraudulently m isrepresented those hazards to consumers, and conspired to deprive th e public of medical and scientific inform ation about smoking, all in derogation of duties created by New Jersey law. The D istrict Court ultim ately ruled, among other things, th a t these claims were pre em pted by the 1965 and 1969 Acts to th e extent th a t th e claims relied on respondents' advertising, promotional, and public relations NOTICE: These opinions arc subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States. Washington. D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. NOTE: Where it is deemed desirable, a syllabus (headnote) will be released * * * al the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared bj the Reporter of Decisions for the convenience of the reader. See United States i\ Detroit Lumber Co.. 200 U.S. 321, 337. Section 4 G w n t f i <1992 7v The Bureau o f Salumai Affairz. /nc 0148-61/ W. .50 WARNING m aterial D- 1/04 T h e U n ite d S ta te s LAW WEEK 6-23- activities after the effective date of the 1965 Act. The C ourt of Appeals affirmed on this point. Held: The judgm ent is reversed in p a rt and affirm ed in part, and the case is remanded. 893 F. 2d 541, reversed in part, affirmed in part, and rem anded. JUSTICE Stevens delivered the opinion of th e C o u rt w ith respect to P a rts I, II, III, and IV, concluding th a t 5 of th e 1965 A ct did not pre-em pt s ta te law dam ages actions, but su p erse d e d only positive enactm ents by state and federal rulem aking bodies m andating p articu lar w arnings on cigarette labels or in cig arette advertisem ents. This conclusion is required by the section's precise and narrow prohibition of required cautionary "statem ent[s]"; by the strong presum ption against pre-emption of state police pow er regulations; by the fact th a t the required 4 w arning does not by its own effect foreclose additional obligations im posed under state law ; by the fact th a t there is no general, inherent conflict betw een federal pre-em p tion of state warning requirem ents and the continued vitality of common law dam ages actions; and by th e A ct's s ta te d purpose and regulatory context, which establish th a t 5 was passed to p rev en t a m ultiplicity o f pending and diverse "re g u la tio n s," a w ord th a t m ost naturally refers to positive enactm ents rath er th an common law actions. J ustice Stevens, joined by T he Chief J ustice, J ustice W hite, a n d JUSTICE O'Connor, concluded in P a rts V an d V I t h a t 5(b) of th e 1969 Act pre-em pts c ertain of p etitio n er's failu re to w a rn and fraudulent m isrepresentation claims, bu t does not pre-em pt other such claim s or the claims based on express w arran ty or conspiracy. (a) T he broad language of am en d ed 5(b) e xtends th e section's pre-em ptive reach beyond positive enactm ents to include some common law d am ages actions. The sta tu to ry p h ra se "re q u ire m e n t or prohibition" suggests no distinction between positive enactm ents and common law, b u t, in fact, easily encom passes obligations th a t tak e th e form of common law ru les, while th e p h rase "im posed u n d e r S tate law " clearly contem plates common law as well as s ta tu te s and regulations. This does not mean, however, th a t 5(b) pre-em pts all common law claims, nor does the statu te indicate th a t any fam iliar subdivision of common law is or is not pre-empted. Instead, the precise language of 5(b) m ust be fairly but--in light of th e presum p tion against pre-em ption--narrowly construed, and each of peti tio n e r's common law claim s m u s t be exam ined to d e te rm in e w h e th er it is in fact pre-empted. The central inquiry in each case is straig h t forward: w hether the legal duty th a t is th e predicate of th e common law d am ag es action satisfies 5(b)'s ex press te rm s, giving th o se te rm s a fair bu t narrow reading. Each phrase w ithin the section lim its the universe of common law claim s pre-em pted by th e statu te. (b) In so far a s claim s u n d e r e ith e r of p e titio n e r's fa ilu re to w arn th e o rie s--i. e., th a t resp o n d en ts were negligent in th e m a n n e r th a t they tested, researched, sold, promoted, an d advertised th e ir ciga re ttes, and th a t they failed to provide adequate w arnings of sm ok in g 's consequences-- require a showing th a t re sp o n d en ts' post-1969 advertising or promotions should have included additional, or more clearly stated , w arn in g s, those claim s rely on a s ta te law "re q u ire m ent or prohibition . . . with respect t o . . . advertising or prom otion" w ith in 5(b)'s m ean in g and are pre-em pted. (c) To th e e x te n t th a t p e titio n er h a s a viable claim for b re a c h of express w arranties, th a t claim is not pre-em pted. W hile the general duty not to breach such w arranties arises under state law, a m an u fa c tu re r's liab ility -fo r th e breach derives from , and is m e a su re d by, th e term s of the w arranty. A common law remedy for a contractual com m itm ent voluntarily undertaken should not be regarded as a "re q u ire m e n t. . . imposed under S tate law" under 5(b). (d) B ecause 5(b) p re-em pts `*prohibition[s)" a s well a s "re q u ire m en t(sj," it su p ersed es p e titio n er's first fra u d u le n t m isre p re se n ta tio n theory, which is predicated on a state law prohibition ag ain st ad v er tis in g an d prom otional s ta te m e n ts tending to m inim ize sm o k in g 's health hazards, and which alleges th a t respondents' advertising neutralized the effect of the federally m andated w arning labels. H ow ever, th e claim s based on p e titio n er's second fra u d u le n t m is re p re sentation theory--which alleges intentional fraud both by false representation and concealment of m aterial facts--are not pre em pted. The concealm ent allegations, insofar as they rely on a state law' duty to disclose m aterial facts through channels of com m unica tion other th an advertising and promotions, do not involve an obliga tion "w ith resp ect to" those activities w ithin 5(b)'s m ean in g . Moreover, those fraudulent m isrepresentation claim s th a t do arise w ith respect to a d vertising and prom otions are not p redicated on d uty "based on sm oking and h e a lth " b u t ra th e r on a m ore genera obligation--the duty not to deceive. (e) P e titio n e r's claim alleging a conspiracy am ong respondent; tm isrep resen t or conceal m a te ria l facts concerning sm oking's health hazards is not pre-em pted, since the predicate duty not to conspire to com m it fraud th a t u n d e rlie s th a t claim is not a prohibition "based on sm oking and h e a lth " as th a t 5<b) p h ra se is properly construed J ustice Blackmun, joined by J ustice Kennedy and J ustice SOUTER, concluded th a t th e modified language of 5(b) in th e I9$ci Act does not clearly exhibit the necessary congressional in te n t to pr. em pt state common-law dam ages actions, and therefore concurred m th e judgm ent th a t certain of petitioners failure to w arn an d fraudu len t m isrepresentation claim s, as well as his express w arran ty and conspiracy claim s, are not pre-em pted by Act. J ustice Sc a u a , joined by J ustice Thom as, concluded t h a t all 0f p e titio n e r's common-law claim s a re pre-em pted by th e 1969 Act under ordinary principles of statutory construction, and therefore concurred in the judgm ent th a t certain of his post-1969 failure-to-w am claims and certain of his fraudulent m isrepresentation claim s are preem p ted . STEVENS, J ., announced th e ju d g m e n t of th e C ourt and delivered the opinion of th e C ourt w ith resp ect to P a rts I, II, III, and IV, in which R eh n q u ist , C. J ., a n d W h ite, Blackm un, O 'C onnor, Ken n ed y , and SOUTER, J J . f joined, and an opinion w ith respect to P a rts V a n d VI, in which R ehnquist, C. J ., a n d WHITE a n d O'CONNOR, J J ., joined. Blackmun, J., filed an opinion concurring in part, concurring in the ju d g m e n t in part, and d issenting in p a rt, in which KENNEDY and SOUTER, J J ., joined. SCALlA, J ., filed a n opinion concurring in the ju d g m e n t in p a rt an d dissen tin g in p a rt, in which THOMAS, J ., joined. J u s t ic e S t e v e n s delivered the opinion of the Court, except as to Parts V and VI. "W a r n in g : T h e S u r g e o n G e n e r a l H a s D e t e r m in e d T h a t C ig a r e t t e S m o k in g Is D a n g e r o u s t o Y o u r H EA LTH ." A federal statute enacted in 1969 requires that warning (or a variation thereof) to appear in a conspic uous place on every package of cigarettes sold in the United States.1 The questions presented to us by this case are whether that statute, or its 1965 predecessor which required a less alarming label, pre-empted peti tioner's common law claims against respondent cigarette manufacturers. Petitioner is the son of Rose Cipollone, who began smoking in 1942 and who died of lung cancer in 1984. He claims that respondents are responsible for Rose Cipollone's death because they breached express warranties contained in their advertising, because they failed to warn consumers about the hazards of smoking, because they fraudulently misrepresented those hazards to consumers, and because they conspired to deprive the public of medical and scien tific information about smoking. The Court of Appeals held that petitioner's state law claims were pre-empted by federal statutes, 893 F. 2d 541 (CA3 1990), and other courts have agreed with that analysis.2 The highest courts of the 1P u b lic H e alth C igarette Sm oking A ct of 1969, Pub. L. 9 1 -2 2 2 ,8 4 S tat, 87, a s am ended, 15 U. S. C. 1331-1340. In 1984, C ongress am ended th e statu te to require four more explicit w arnings, used on a rotating b a sis. See C om prehensive Sm oking E ducation Act, P ub. L. 98--474, 98 S tat. 2201. Because petitioner's claims arose before 1984, neither party relies on th is later Act. ' T he C o u rt of A ppeals' analysis w as in itia lly s e t forth in Cipollone v. Liggett Group, Inc., 789 F.2d 181 {CA3 1986). O th e r federal c ourts have ad o p ted a sim ila r analysis. See Pennington v. V isiron Corp., 876 F. 2d 414 (CA5 1989); Roysdon v. R. J . Reynolds Tobacco C o., 849 F . 2d 230 iCA6 1988);SiepAen v .American Brands, I n c 825 F .2d 312 (CA11 1987); Palmer v. Liggett Group, Inc,, 825 F.2d 620 (C A l 1987). Published each Tuesday except first Tuesday in Septem ber, last T uesday in July, and last Tuesday in December by The Bureau of National Affairs, Inc., 1231 Twenty-Fifth Street, N.W ., W ashington, D.C. 20037. Subscription rates (payable in advance) $668.00 first ^ 3 %$632.00 per year thereafter. Second class postage paid at W ashington, p.C.,, and at additional mailing offices. D - 9 0 .7 States of Minnesota and New Jersey, however, have held The Court of Appeals accepted an interlocutory appeal that the federal statutes did not pre-empt similar common pursuant to 28 U. S. C. 1292(b), and reversed. Cipollone law claims.3 Because of the manifest importance of the v. Liggett Group, Inc., 789 F.2d 181 (CA3 1986). The court issue, we granted certiorari to resolve the conflict, 500 U. S. rejected respondents' contention that the federal Acts I ----(1991). We now reverse in part and affirm in part. I expressly pre-empted common law actions, but accepted their contention that such actions would conflict with On August 1, 1983, Rose Cipollone and her husband filed a complaint invoking the diversity jurisdiction of the Federal District Court. Their complaint alleged that Rose Cipollone developed lung cancer because she smoked cigarettes manufactured and sold by the three respondents. After her death in 1984, her husband filed an amended complaint. After trial, he also died; their son, executor of both estates, now maintains this action. Petitioner's third amended complaint alleges several federal law. Relying on the statement of purpose in the statutes,5 the court concluded that Congress' "carefully drawn balance between the purposes of warning the public of the hazards of cigarette smoking and protecting the interests of the national economy" would be upset by state law damages actions based on noncompliance with "warn ing, advertisement, and promotion obligations other than those prescribed in the [federal] Act." Id., at 187. Accord ingly, the court held; different bases of recovery, relying on theories of strict "the Act pre-empts those state law damage[s] actions liability, negligence, express warranty, and intentional tort. relating to smoking and health that challenge either These claims, all based on New Jersey law, divide into five the adequacy of the warning on cigarette packages or categories. The "design defect claims" allege that respond the propriety of a party's actions with respect to the ents'cigarettes were defective because respondents failed to advertising and promotion of cigarettes. [WJhere the use a safer alternative design for their products and success of a state law damage[s] claim necessarily because the social value of their product was outweighed by depends on the assertion that a party bore the duty to the dangers it created (Count 2, App. 83-84). The "failure provide a warning to consumers in addition to the to warn claims" allege both that the product was "defective warning Congress has required on cigarette packages, as a result of [respondents'] failure to provide adequate such claims are pre-empted as conflicting with the Act." warnings of the health consequences of cigarette smoking" Ibid, (footnote omitted). % (Count 3, App. 85) and that respondents "were negligent in the manner [that] they tested, researched, sold, promoted, and advertised" their cigarettes (Count 4, App. 86). The "express warranty claims" allege that respondents had "expressly warranted that smoking the cigarettes which they manufactured and sold did not present any significant health consequences" (Count 7, App. 88). The "fraudulent misrepresentation claims" allege that respondents had wilfully "through their advertising, attempted to neutralize the [federally mandated] wamin[g]" labels (Count 6, App. 87-88), and that they had possessed, but had "ignored and failed to act upon" medical and scientific data indicating that "cigarettes were hazardous to the health of consumers" (Count 8, App. 89). Finally, the "conspiracy to defraud claims" allege that respondents conspired to deprive the public of such medical and scientific data (Count 8, App. 89). As one of their defenses, respondents contended that the Federal Cigarette Labeling and Advertising Act, enacted in 1965, and its successor, the Public Health Cigarette Smoking Act of 1969, protected them from any liability based on their conduct after 1965. In a pretrial ruling, the District Court concluded that the federal statutes were intended to establish a uniform warning that would prevail throughout the country and that would protect cigarette manufacturers from being "subjected to varying require ments from state to state," Cipollone v. Liggett Group, Inc., 593 F. Supp. 1146, 1148 (NJ 1984), but that the statutes did not pre-empt common law actions. Id., at 1153-1170.4 Accordingly, the court granted a motion to strike the pre emption defense entirely. The court did not, however, identify the specific claims asserted by petitioner that were pre-empted by the Act. This Court denied a petition for certiorari, 479 U. S. 1043 (1987), and the case returned to the District Court for trial. Complying with the Court of Appeals mandate, the District Court held that the failure to warn, express warranty, fraudulent misrepresentation, and conspiracy to defraud claims were barred to the extent that they relied on respondents'advertising, promotional, and public relations activities after January 1, 1966 (the effective date of the 1965 Act). Cipollone v. Liggett Group, Inc., 649 F. Supp. 664, 669, 673-675 (NJ 1986). The court also ruled that while the design defect claims were not pre-empted by federal law, those claims were barred on other grounds.6 Id., at 669-672. Following extensive discovery and a fourmonth trial, the jury answered a series of special interroga tories and awarded $400,000 in damages to Rose Cipollone's husband. In brief, it rejected all ofthe fraudulent misrepre sentation and conspiracy claims, but found that respondent Liggett had breached its duty to warn and its express warranties before 1966. It found, however, that Rose Cipollone had "voluntarily and unreasonably encounter!ed) a known danger by smoking cigarettes" and that 80% of the responsibility for her injuries wras attributable to her. See 893 F.2d, at 554 (summarizing jury findings). For that reason, no damages were awarded to her estate. However, the jury awarded damages to compensate her husband for losses caused by respondents' breach of express warranty. On cross-appeals from the final judgment, the Court of Appeals affirmed the District Court's pre-emption rulings "'Forster v. R. J . Reynolds Tobacco Co.. 437 N. W. 2d 655 (M inn. 1989); Dewey v. R. J . Reynolds Tobacco Co., 121 N .J. 69, 577 A. 2d 1239 (1990). 'T h e court explained; "How ever, th e existence of th e p re sen t federally m a n d a ted w a rn in g does not prevent an individual from claiming th a t the risks of sm oking are greater th an the warning indicates, and th a t therefore such w arning is in a d e q u a te . T he co u rt recognizes th a t it will be ex trem ely difficult for a p lain tiff to prove th a t the present warning is inadequate to inform of th e dangers, w hatever they may be. However, the difficulty of proof cannot preclude th e opportunity to be heard , and affording th a t o p p o rtu n ity will n o t underm ine th e purposes of th e A ct." 593 F . Supp., at 1148. 5"It is th e policy of the C ongress, an d th e purpose of th is ch ap ter, to establish a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health, whereby-- "(1) th e public may be a d eq u a te ly inform ed th a t c ig a re tte sm oking m ay be hazard o u s to h ealth by inclusion of a w arning to th a t effect on each package of cigarettes; and "|2 ) commerce and the national econom y m ay be (A) protected to the m axim um extent consistent with th is declared policy and (Bl not im peded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship betw een sm oking and h e a lth ." 15 U. S. C. 1331 (1982 ed.l. GWe a re not presented w ith any q u e stio n concerning th e se claim s. T h e U n ite d S ta te s LAW WEEK 6 0 LW 4706 but remanded for a new tH-;' | several issues not relevant to our decision We ^ ' ultd ther Petltion for certlorari t0 packages of which are labeled in conform, . . - provisions of this Act." ^ consider the p r ^ ,ptive effect of ^ federaJ statutes- Although the Act took effect January 1, 1966, 10 of * ugh physicians had suspected a link between Ai,l"itk'i"ng and illness for centuries, the first medical studies of that connection did not apPear until the 1920s. See U. S. Dept, ofHealth and Human Services, Report of the Surgeon General, Reducing the ^ ea^ h Consequences of Smoking: 25 Years /"P ro g re s s 5 (1989). The ensuing decades saw a wide range of epidemiologic and laboratory studies on the health hazards of smoking. Thus, by the time the Surgeon General convened an advisory committee to examine the issue in 1962, there were more than 7,000 publications examining the relationship between smoking and health. Id., at 5-7. In 1964, the advisory committee issued its repeat, which stated as its central conclusion: "Cigarette smoking is a health hazard of sufficient importance in the United States to warrant appropriate remedial action." U. S. Dept, of Health, Education, and Welfare, U. S. Surgeon General's Advisory Committee, Smoking and Health 33 (1964). Relying in part on that report, the Federal Trade Commis sion (FTC), which had long regulated unfair and deceptive advertising practices in the cigarette industry,7 promul gated a new trade regulation rule. That rule, which was to take effect January 1, 1965, established that it would be a Act provided th at its provisions affecting the re g u la te * advertising would terminate on July 1 1969. As th at termination date approached, federal authonu* prepared to issue further regulations on cigarette advert., ing The FTC announced the reinstitution of iu proceedings concerning a warning requirement for cigarrtu advertisements. 34 Fed. Reg. 7917 (1969). The Communications Commission (FCC)i announced that would consider "a proposed rule which would ban the Hwiadrast of cigarette commercials by radio and televUw* stations " 34 Fed. Reg. 1959 (1969). State authorities also prepared to take actions regulating cigarette advert)- m Tf1was in this context th at Congress enacted the Public w 1th Ciearette Smoking Act of 1969, which amended fe 1965 Act in several ways. First, the 1969 Act strengthened the warning label, in part by requiring a statement th at cigarette smoking "is dangerous rather than that U "may be hazardous." Second, the 1969 Act banned agarett* , in "anv medium of electronic communication subject to [FCC] jurisdiction." Third, and related the 1969 Act modified the pre-emption provision by replacing the original 5(b) with a provision that reads. violation of the Federal Trade Commission Act "to fail to "(b) No requirement or prohibition based on smoking disclose, clearly and prominently, in all advertising and on and health shall be imposed under State law with every pack, box, carton, or container [of cigarettes] that respect to the advertising or promotion of any ciga cigarette smoking is dangerous to health and may cause rettes the packages of which are labeled in conformity death from cancer and other diseases." 29 Fed. Reg. 8325 with the provisions of this Act." (1964). Several States also moved to regulate the advertis ing and labeling of cigarettes. See, e.g., 1965 N.Y. Laws, ch.470; see also 111 Cong. Rec. 13900-13902 (1965) (statem ent of Sen. Moss). Upon a congressional request, the FTC postponed enforcement of its new regulation for six months. In July 1965, Congress enacted the Federal Cigarette Labeling and Advertising Act.8 The 1965 Act effectively adopted half of the FTC's regulation: the Act mandated warnings on cigarette packages ( 5(a)), but Although the Act also directed the FTC not to "take any action before July 1 ,1971, with respect to its pending trade regulation rule proceeding relating to cigarette advertising," the narrowing of the pre-emption provision to prohibit only restrictions "imposed under State law" cleared the way for the FTC to extend the warning-label requirement to print advertisements for cigarettes. The FTC did so in 1972. See In re Lorillard, 80 F.T.C. 455 (1972). barred the requirement of such warnings in cigarette advertising ( 5(b)).9 Section 2 of the Act declares the statute's two purposes: (1) adequately informing th"publicThat cigarette smoking may be hazardous to health, and (2) protecting the national economy from the burden imposed by diverse, nonuniform and confusing cigarette labeling and advertising regula tions.10 In furtherance of the first purpose, 4 of the Act made it unlawful to sell or distribute any cigarettes in the United States unless the package bore a conspicuous label Stating: "C A U T IO N : C IG A R ETTE SM O K IN G M a y B e H A ZA RD O U S TO Y o u r H e a l t h ." In furtherance of the second purpose, 5, captioned "Preemption," provided in part: "(a) No statement relating to smoking and health, other than the statement required by section 4 of this Act, shall be required on any cigarette package. III Article VI of the Constitution provides that the laws of the United States "shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." Art. VI, cl. 2. Thus, since our decision in McCulloch v. Maryland, 4 Wheat. 316, 427 (1819), it has been settled that state law that conflicts with federal law is "without effect." Maryland v. Louisiana, 451 U. S. 725, 746(1981). Consideration of issues arising under the Supremacy Clause "startfs] with the assumption that the historic police powers of the States [are] not to be superseded by . . . Federal Act unless that [is] the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). Accordingly, "`[tjhe purpose of Congress is the ultimate touchstone'" of pre emption analysis. Malone v. White Motor Corp., 435 U. S. "(b) No statement relating to smoking and health shall 497,504 (1978) (quoting Retail Clerks v. Schermerhorn, 375 be required in the advertising of any cigarettes the U. S. 96, 103 (1963)). Congress' intent may be "explicitly stated in the statute's See, c.g ., B row n & W illiam son Tobacco Corp., 56 F.T.C. 956 (1960); L ig g e tt & M y ers Tobacco Co., 55 F .T .C . 354 (1958); P hilip M orris & Co., L td , 51 F .T .C . 857 (1955); R. J . R eynolds Tobacco Co., 48 F.T.C. 682 language or implicitly contained in its structure and purpose." Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977). In the absence of an express congressional com- (1952); L ondon Tobacco Co., 36 F.T .C . 282 (1943). " P u b . L. 8 9 -9 2 , 79 S ta t. 282, a s a m e n d e d , 15 U. S. C. 1331-1340. ^H ow ever, 5(c) of th e Act expressly p re serv ed "th e authority.-of th e 11F o r e x a m p le , th e C a lifo rn ia S ta te S e n a te p a ss e d a to ta l b a n on both V- (Fd V fal ^ r a d e i C m m s s i x ^ ^ S 's p e c t to u n f a ir o r d ecep tiv e a c ts or p r in t a n d e le c tro n ic c ig a r e tte a d v e r tis e m e n ts . "C a lifo rn ia S e n a te Votes practices in th e a y ^ is ii^ ^ C Ig ie tte s ." 79 S tat. 283. B a n O n C ig a re tte A d v e rtis in g ," W a sh in g to n P o s t, J u n e 26, 1969, p- A9. ' '." See n r 5 , fr~pra;.'-- _ ,, . --- . 12P u b . L. 9 1 -2 2 2 , 84 S t a t . 87 , a s am e n d ed , 15 U . S . C. 1331-1340. 2 c f. c 6-23-92 The U n ited S ta tes LAW WEEK mand, state law is pre-empted if that law actually conflicts wii - deral law, see Pacific Gas & Elec. Co. v. Energy Res^..ces Conservation and Development Comm'n, 461 U. S. 190, 204 (1983), or if federal law so thoroughly occupies a legislative field `" as to make reasonable the inference that Congress left no room for the States to supplement it.'" Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141, 153 (1982) (quoting Rice v. Santa Fe Elevator Corp., 331 U. S., a t 230). The Court of Appeals was not persuaded that the pre emption provision in the 1969 Act encompassed state common law claims.13 789 F.2d, at 185-186. It was also not persuaded that the labeling obligation imposed by both the 1965 and 1969 Acts revealed a congressional intent to exert exclusive federal control over every aspect of the relationship between cigarettes and health. Id., at 186. Nevertheless, reading the statute as a whole in the light of the statem ent of purpose in 2, and considering the potential regulatory effect of state common law actions on the federal interest in uniformity, the Court of Appeals concluded that Congress had impliedly pre-empted petition er's claims challenging the adequacy of the warnings on labels or in advertising or the propriety of respondents' advertising and promotional activities. Id., at 187. In our opinion, the pre-emptive scope of the 1965 Act and the 1969 Act is governed entirely by the express language in 5 of each Act. When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a "reliable indicium of congressional ir ' t with respect to state authority," Malone v. White A. Corp., 435 U. S., a t 505, "there is no need to infer congressional intent to pre-empt state laws from the substantive provisions" of the legislation. California Federal Savings & Loan Assn. v. Guerra, 479 U. S. 272, 282 (1987) (opinion of Marshall, J.). Such reasoning is a variant of the familiar principle of expressio unius est exclusio alterius: Congress' enactm ent of a provision defining the pre-emptive reach of a statute implies that matters beyond th a t reach are not pre-empted. In this case, the other provisions of the 1965 and 1969 Acts offer no cause to look beyond 5 of each Act. Therefore, we need only identify the domain expressly pre-empted by each of those sections. As the 1965 and 1969 provisions differ substantially, we consider each in turn. ^ IV In the 1965 pre-emption provision regarding advertising (5(b)), Congress spoke precisely and narrowly: "No statement relating to smoking and health shall be required in the advertising of [properly labeled] cigarettes." Section 5(a) used the same phrase ("No statement relating to smoking and health") with regard to cigarette labeling. As 5(a) made clear, th at phrase referred to the sort of warning provided for in 4, which set forth verbatim the warning Congress determined to be appropriate. Thus, on their face, these provisions merely prohibited state and federal rule-making bodies from mandating particular cautionary statements on cigarette labels ( 5(a)) or in cigarette advertisements ( 5(b)). ^eyond the precise words of these provisions, this reading ppropriate for several reasons. First, as discussed above, we must construe these provisions in light of the 13In its e x p re ss p re -e m p tio n a n a ly sis , th e c o u rt did n o t d is tin g u is h betw een the pre-em ption provisions of the 1965 and 1969 Acts; it relied solely on the la tte r, a p p aren tly believing th a t the 1969 provision w as a t le a s t a s b ro a d a s th e 1965 p ro v isio n . T h e c o u rt's u ltim a te ru lin g t h a t p e titio n e r 's c la im s w e re im p lie d ly p re -e m p te d effective J a n u a r y 1, 1966, reflects the fact th a t th e 1969 Act did not alter th e statem e n t of purpose in 6 2. w hich w a s c ritic a l to th e c o u rt's im p lie d p re -e m p tio n a n a ly s is . presumption against the pre-emption of state pohce power.- regulations. This presumption reinforces the'approprtat--^'* ness of a narrow reading of 5. Second,' the"'Warning ' required in 4 does not by its own effect foreclose additional obligations imposed under state law. That Congress requires a particular warning label does not automatically pre-empt a regulatory field. See McDermott v. Wisconsin, 228 U. S. 115, 131-132 (1913). Third, there is no general, inherent conflict between federal pre-emption of state warning requirements and the continued vitality of state common law damages actions. For example, in the Compre hensive Smokeless Tobacco Health Education Act of 1986,M Congress expressly pre-empted State or local imposition of a "statement relating to the use of smokeless tobacco products and health" but, at the same time, preserved state law damages actions based on those products. See 15 U. S. C. 4406. All of these consider ations indicate that 5 is best read as having superseded only positive enactments by legislatures or administrative agencies that mandate particular warning labels.'145 This reading comports with the 1965 Act's statem ent of purpose, which expressed an intent to avoid "diverse, nonuniform, and confusing labeling and advertising regulations " with respect to any relationship between smoking and health." Read against the backdrop of regulatory activity undertaken by state legislatures and federal agencies in response to the Surgeon General's report, the term "regulation" most naturally refers to positive enactments by those bodies, not to common law damages actions. The regulatory context of the 1965 Act also supports such a reading. As noted above, a warning requirement promul gated by the FTC and other requirements under consider ation by the States were the catalyst for passage of the 1965 Act. These regulatory actions animated the passage of 5, which reflected Congress' efforts to prevent "a multiplicity of State and local regulations pertaining to labeling of cigarette packages," H.R. Rep. No. 89--449, 89th Cong., 1st Sess., 4 (1965), and to "pre-empt [all] Federal, State, and local authorities) from requiring any statement . . . relating to smoking and health in the advertising of cigarettes." Id., at 5 (emphasis supplied).16* For these reasons, we conclude that 5 of the 1965 Act only pre-empted state and federal rulemaking bodies from mandating particular cautionary statements and did not pre-empt state law damages actions.1' V Compared to its predecessor in the 1965 Act, the plain language of the pre-emption provision in the 1969 Act is much broader. First, the later Act bars not simply "state ments" but rather "requirement[s] or prohibition[s]. . . im- 14P u b . L. 9 9 -2 5 2 , 100 S ta t. 30, a s codified, 15 U . S. C. 4 4 0 1 - 1408. 15Cf. B a n z h a fv . F C C . 132 U . S. App. D .C. 14, 4 05 F .2 d 1082 (1968), cert, denied, 396 U. S. 842 (1969) (holding th a t 1965 A ct did not pre-em pt F C C 's fa irn e s s policy a s a p p lie d to c ig a re tte a d v e rtis in g ). 16J u stic e S c a LIA ta k e s is su e w ith o u r n a rro w r e a d in g of th e p h r a s e "No s tatem e n t." H is criticism , how ever, relies solely on an in te rp reta tio n of those two words, artificially severed from both tex tu al and legislative c o n te x t. As d e m o n s tra te d above, th e p h ra s e "N o s ta t e m e n t" in 5(b) re fe rs to the sim ila r p h ra se in 5(a>, w hich refers in tu rn to 4 , w hich its e lf se ts forth a particular statem e n t. T his context, com bined w ith th e reg u lato ry settin g in which Congress acted, establishes th a t a narrow re a d in g of th e phrase "No statem e n t" is ap p ro p ria te . ' T his in terp retatio n of th e 1965 Act ap p ears to be con sisten t w ith re sp o n d en ts' contem poraneous u n d erstan d in g of th e Act. A lthough respondents have participated in a great deal of litigation relating to c ig a r e tte u se b e g in n in g in th e 1950's, i t a p p e a rs t h a t th is c ase is th e first in w hich they have raised 5 as a pre-em ption defense. 3 oO 801 SI D-s 3o 6 0 LW 4 7 0 8 T he U n ited S ta te s LAW WEEK posed under State law." Second, the later Act reaches beyond statements "in the advertising" to obligations "with respect to the advertising or promotion" of cigarettes. Notwithstanding these substantial differences in lan guage, both petitioner and respondents contend that the 1969 Act did not materially alter the pre-emptive scope of federal law.1* Their primary support for this contention is a sentence in a Committee Report which states that the 1969 amendment "clarified" the 1965 version of 5(b>. S. Rep. No. 91-566, p. 12 (1969). We reject the parties' reading as incompatible with the language and origins of the amendments. As we noted in another context, "[i]nferences from legislative history cannot rest on so slender a reed. Moreover, the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." United States v. Price, 361 U. S. 304, 313 (1960). The 1969 Act worked substantial changes in the law: rewriting the label warning, banning broadcast advertising, and allowing the FTC to regulate print advertising. In the context of such revisions and in light of the substantial changes in wording, we cannot accept the parties' claim that the 1969 Act did not alter the reach of 5(b).*19 Petitioner next contends that 5(b), however broadened by the 1969 Act, does not pre-empt common law actions. He offers two theories for limiting the reach of the amended 5(b). First, he argues th at common law damages actions do not impose "requirement[s] or prohibition[s]" and that Congress intended only to trump "state statute[s], injunction[s], or executive pronouncement!s]."20 We disagree; such an analysis is at odds both with the plain words of the 1969 Act and with the general understanding of common law damages actions. The phrase "[njo require ment or prohibition" sweeps broadly and suggests no distinction between positive enactments and common law; to the contrary, those words easily encompass obligations th at take the form of common law rules. As we noted in another context, "[state] regulation can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensa tion can be, indeed is designed to be, a potent method of governing conduct and controlling policy." San Diego Building Trades Council v. Garmon, 359 U. S. 236, 247 (1959). Although portions of the legislative history of the 1969 Act suggest that Congress was primarily concerned with positive enactments by States and localities, see S. Rep. No. 91-566, p. 12, the language of the Act plainly reaches beyond such enactments. "We must give effect to this plain language unless there is good reason to believe Congress intended the language to have some more restrictive meaning." Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 97 (1983). In this case there is no "good reason to believe" that Congress m eant less than what it said; indeed, in light of the narrowness of the 1965 Act, there is "good reason to believe" th at Congress meant precisely what it said in amending th at Act. Moreover, common law damages actions of the sort raised by petitioner are premised on the existence of a legal duty and it is difficult to say that such actions do not impose "requirements or prohibitions." See W. Prosser, Law of Torts 4 (4th ed. 1971); Black's Law Dictionary 1489 (6th ed. 1990) (defining "tort" as "always [involving] a violation of '"S ee B rief for P etitio n e r 2 3 -2 4 ; B rief for R espondents 21-23. 19A s n o te d a b o v e, th e 1965 A c t's s ta t e m e n t o f p u rp o se ( 2) s u g g este d t h a t C o n g re ss w a s c o n ce rn e d p rim a r ily w ith "r e g u la tio n s "-- positive en actm en ts, ra th e r th an com m on law dam ages actions. A lthough the 1969 A ct did no t am end 2, we o re not persuaded th a t the retention of th a t portion of th e 1965 Act is a sufficient basis for rejecting the plain m e a n in g o f th e b ro ad language.-that C ongress added to 5(b). 20B r ie f f i r PetetinnnT y o -- some duty owing to plaintiff'). It is in this 1969 version of 5(b) differs from its predecessor^ the common law would not normally require a any specific statement on its packages or in its ~?****** ments, it is the essence of the common law to enf that are either affirmative rreeqquuiirreemmeenntts or prohibitions. We therefore reject petitioner's arm ***t*Yk the phrase "requirement or prohibition" limits Act's pre-emptive scope to positive enactments by f tures and agencies. y Petitioner's second argument for excluding comm rules from the reach of 5(b) hinges on the phrase lao under State law." This argument fails as well since Erie R. v. Tompkins, 304 U. S. 64 (1938) we recognized the phrase "state law" to include common law * well as statutes and regulations. Indeed just last Term Court stated that the phrase "all other law, including c and municipal law " "does not admit of [a] distinction1*1* between positive enactments and common-law rule* liability." Norfolk & Western R. Co. v. Train Dispatch* 499 U. S. ---- , ---- (1991) (slip op., at 11). A lth o u g h ^ presumption against pre-emption might give good reason to construe the phrase "state law" in a pre-emption provision more narrowly than an identical phrase in another context, in this case such a construction is not appropriate A* explained above, the 1965 version of 5 was precise ar^j narrow on its face; the obviously broader language of the 1969 version extended that section's pre-emptive reach Moreover, while the version of the 1969 Act passed by the Senate pre-empted "any State statute or regulation wtth respect to . . . advertising or promotion," S. Rep. No. 91-566, p. 16, the Conference Committee replaced this language with "State law with respect to advertising ot promotion." In such a situation, 5(b)'s pre-emption of "state law" cannot fairly be limited to positive enactments. That the pre-emptive scope of 5(b) cannot be limited to positive enactments does not mean that that section pre empts all common law claims. For example, as respondents concede, 5(b) does not generally pre-empt "state-law obligations to avoid marketing cigarettes with manufactur ing defects or to use a demonstrably safer alternative design for cigarettes."21 For purposes of 5(b), the common law is not of a piece. Nor does the statute indicate that any familiar subdivi-" sion of common law claims is or is not pre-empted. We therefore cannot follow petitioner's passing suggestion tha: 5(b) pre-empts liability for omissions but not for acts, or th at 5(b) pre-empts liability for unintentional torts but net for intentional torts. Instead we must fairly but--in light of the strong presumption against pre-emption--narrowly construe the precise language of 5(b) and we must look tc. each of petitioner's common law claims to determine whether it is in fact pre-empted.22 The central inquiry in each case is straightforward: we ask whether the legal duty that is the predicate of the common law damages action constitutes a "requirement or prohibition based on smoking and health . . . imposed under State law with respect to . . . advertising or promotion," giving that clause a fair but narrow reading. As discussed below, each phrase 802 *21B rie f for R esp o n d en ts 14. 22P e titio n e r m a k e s m uch of th e fact t h a t C o n g re ss did n o t e x p r r ;? in c lu d e c om m on la w w ith in 5 's p re -e m p tiv e re a ch , a s it h as ir. oy, s ta tu te s . See, e .g ., 29 U. S. C. 1144(cX l); 12 U. S. C. 1 7 1 5 : - R e s p o n d e n ts m a k e m u ch of th e fact t h a t C o n g re ss did not tr.c sav in g s cla u se p re serv in g com m on law claim s, again, as it ha> 11 s ta tu te s . See, e .g ., 17 U. S. C . 301. U nder our an aly sis of i a. om issions m ake perfect sense: Congress was neither pre-em pting D`#3I sav in g com m on law as a whole-- it was sim ply pre-em pting p.irl..u-*T 3 -9 2 T h e U n ited S ta te s LAW WEEK ..jjpHthin th at clause limits the universe of common law claims ^re-em pted by the statute. We consider each category of damages actions in turn. In doing so, we express no opinion on whether these actions 'W"iure viable claims as a matter of state law; we assume Wbrguendo that they are. f Failure to Warn To establish liability for a failure to warn, petitioner m ust show th at "a warning is necessary to make a product . . . ^reasonably safe, suitable and fit for its intended use," th at respondents failed to provide such a warning, and th at th at failure was a proximate cause of petitioner's injury. Tr. 12738. In this case, petitioner offered two closely related theories concerning the failure to warn: first, that respon dents "were negligent in the manner [that] they tested, researched, sold, promoted, and advertised" their cigarettes; and second, th at respondents failed to provide "adequate warnings of the health consequences of cigarette smoking." App. 85-86. Petitioner's claims are pre-empted to the extent that they rely on a state law "requirement or prohibition . . . with respect to . . . advertising or promotion." Thus, insofar as claims under either failure to warn theory require a howing that respondents' post-1969 advertising or promo tions should have included additional, or more clearly stated, warnings, those claims are pre-empted. The Act does not, however, pre-empt petitioner's claims th at rely Solely on respondents' testing or research practices or other ctions unrelated to advertising or promotion. E| itreach o f Express Warranty % " 'Petitioner's claim for breach of an express warranty ' arises under N. J. Stat. Ann. 12A:2-313(lXa)(West 1991), 5 which provides: X. "Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and h, becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise." Petitioner's evidence of an express warranty consists largely of statements made in respondents' advertising. See 893 P, 2d, a t 574, 576; 683 F. Supp. 1487, 1497 (NJ 1988). Applying the Court of Appeals' ruling that Congress pre empted "damage[s] actions . .. that challenge . . . the Propriety of a party's actions with respect to the advertising and promotion of cigarettes," 789 F.2d, at 187, the District Court ruled th at this claim "inevitably brings into question [respondents'] advertising and promotional activities, and is therefore pre-empted" after 1965. 649 F. Supp., at 675. As demonstrated above, however, the 1969 Act does not sweep so broadly: the appropriate inquiry is not whether a claim challenges the "propriety" of advertising and Promotion, but whether the claim would require the apposition under state law of a requirement or prohibition based on smoking and health with respect to advertising or Promotion. A m anufacturer's liability for breach of an express Warranty derives from, and is measured by, the term s of s that warranty. Accordingly, the "requirements" imposed by express warranty claim are not "imposed under State / 'law," but rather imposed by the warrantorTM If, for exam- tjjt T hus it is th a t express w arranty claim s are said to sound in co n tract h e r th a n in to r t. C o m p a re B la ck 's L aw D ic tio n a ry 1 4 8 9 1 6 th ed. 1990) fining "t o r t ": "T h e re m u s t a lw a y s be a v io la tio n o f so m e d u ty . . .a n d [fierally such d u ty m u st arise by operation of law and n o t by m ere 'e m e n t o f th e p a rtie s " ) w ith id., a t 322 (d e fin in g "c o n tr a c t": "A n d e m e n t b e tw e e n tw o . . . p e rso n s w hich c re a te s a n o b lig a tio n "). pie, a manufacturer expressly promised to pa~& medical bills if she contracted honor th at promise could not fairly be said to be "imposed under state law," but rather is best understood as under taken by the manufacturer itself. While the general duty not to breach warranties arises under state law, the particular "requirement . . . based on smoking and health . . . with respect to the advertising or promotion [of] cigarettes" in an express warranty claim arises from the m anufacturer's statements in its advertisements. In short, a common law remedy for a contractual commitment voluntarily undertaken should not be regarded as a "requirement . . . imposed under State law" within the meaning of 5(b).24 That the terms of the warranty may have been set forth in advertisements rather than in separate documents is irrelevant to the pre-emption issue (though possibly not to the state law issue of whether the alleged warranty is valid and enforceable) because although the breach of warranty claim is made "with respect to advertising" it does not rest on a duty imposed under state law. Accordingly, to the extent that petitioner has a viable claim for breach of express warranties made by respondents, that claim is not pre-empted by the 1969 Act. Fraudulent Misrepresentation Petitioner alleges two theories of fraudulent misrepresen tation. First, petitioner alleges that respondents, through their advertising, neutralized the effect of federally man dated warning labels. Such a claim is predicated on a state-law prohibition against statements in advertising and promotional materials that tend to minimize the health hazards associated with smoking. Such a prohibition, however, is merely the converse of a state law requirement th at warnings be included in advertising and promotional materials. Section 5(b) of the 1969 Act pre-empts both requirements and prohibitions; it therefore supersedes petitioner's first fraudulent misrepresentation theory. Regulators have long recognized the relationship between prohibitions on advertising that downplays the dangers of smoking and requirements for warnings in advertisements. For example, the FTC, in promulgating its initial trade regulation rule in 1964, criticized advertising that "asso ciated cigarette smoking with such positive attributes as contentment, glamour, romance, youth, happiness . . . at the same time suggesting that smoking is an activity at least consistent with physical health and well-being." The Commission concluded: "To avoid giving a false impression th at smoking [is] innocuous, the cigarette manufacturer who represents the alleged pleasures or satisfactions of cigarette smoking in his advertising must also disclose the serious risks to life that smoking involves." 29 Fed. Reg., at 8356. Long-standing regulations of the Food and Drug Adminis- 2,JUSTICE S calia c o n te n d s t h a t b e c a u s e th e g e n e ra l d u ty to h o n o r express w arran ties arises under state law, every express w arranty obligation is a "requirem ent. . .im posed u n d er S tate law ," and th'at, th e re fo re , th e A ct p re -e m p ts p e titio n e r's e x p re s s w a rra n ty claim . JUSTICE s c a l ia m ig h t b e co rre c t i f th e A ct p re -e m p te d "lability* im p o sed u n d e r sta te law (as he suggests, post, a t 8); b u t in ste ad th e Act expressly p re -e m p ts only a " requirement or prohibition" im p o se d u n d e r s ta te lc^w. T h a t a "co n tract h as no legal force a p a rt from th e [state] law th a t a c k n o w le d g e s its b in d in g c h a r a c te r," Norfolk & Western Railw ay Co. v. A m erican Train Dispatchers A ssn ., ___ U . S. ___ , ___ (1991), does n o t m e a n t h a t e v ery c o n tra c tu a l p rovision is "im p o s e d u n d e r S ta te la w ." To th e contrary, common understanding dictates th a t a contractual r e q u ir e m e n t, a lth o u g h only en fo rceab le u n d e r s ta t e la w , is n o t "im posed" b y th e s ta t e , b u t r a t h e r is "im p o se d " by th e c o n tra c tin g p a rty upon itself. 803 -33 6 0 LW 4 7 1 0 T h e U n ite d S ta te s LAW WEEK tration express a similar understanding of the relationship between required warnings and advertising that "negates or disclaims" those warnings: "A hazardous substance shall not be deemed to have met [federal labeling] requirements if there appears in or on the label . . . statements, designs, or other graphic material that in any manner negates or disclaims [the required warning]." 21 CFR 191.102 (1965). In this light it seems quite clear that petitioner's first theory of fraudulent misrepresentation is inextricably related to petitioner's first failure to warn theory, a theory th at we have already concluded is largely pre-empted by 5(b). Petitioner's second theory, as construed by the District Court, alleges intentional fraud and misrepresentation both by "false representation of a material fact [and by] concealfment of] a material fact." Tr. 12727.25 The predicate of this claim is a state law duty not to make false state ments of material fact or to conceal such facts. Our pre emption analysis requires us to determine whether such a duty is the sort of requirement or prohibition proscribed by 5(b). Section 5(b) pre-empts only the imposition of state law obligations "with respect to the advertising or promotion" of cigarettes. Petitioner's claims that respondents concealed material facts are therefore not pre-empted insofar as those claims rely on a state law duty to disclose such facts through channels of communication other than advertising or promotion. Thus, for example, if state law obliged respondents to disclose material facts about smoking and health to an administrative agency, 5(b) would not pre empt a state law claim based on a failure to fulfill that obligation. Moreover, petitioner's fraudulent misrepresentation claims th at do arise with respect to advertising and promotions (most notably claims based on allegedly false statements of material fact made in advertisements) are not pre-empted by 5(b). Such claims are not predicated on a duty "based on smoking and health" but rather on a more general obligation--the duty not to deceive. This under standing of fraud by intentional misstatement is appropri ate for several reasons. First, in the 1969 Act, Congress offered no sign that it wished to insulate cigarette manufac turers from longstanding rules governing fraud. To the contrary, both the 1965 and the 1969 Acts explicitly reserved the FTC's authority to identify and punish deceptive advertising practices--an authority that the FTC had long exercised and continues to exercise. See 5(c) of the 1965 Act; 7(b) of the 1969 Act; see also nn. 7, 9, supra. This indicates that Congress intended the phrase "relating to smoking and health" (which was essentially unchanged by the 1969 Act) to be construed narrowly, so as not to proscribe the regulation of deceptive advertising.26 Moreover, this reading of "based on smoking and health" is wholly consistent with the purposes of the 1969 Act. State law prohibitions on false statements of material fact do not create "diverse, nonuniform, and confusing" stan dards. Unlike state law obligations concerning the warning " T he D istrict C o u rt stated th a t th is claim "consists of the following elem ents: l ) a m aterial m isrepresentation o f . . . fact [by false statem en t o r c o n c e a lm e n t]; 2) k n o w led g e o f th e fa lsity . . .; 3) in te n t t h a t th e m is re p r e s e n ta tio n be re lie d u p o n ; 4) ju s tifia b le re lia n c e . . .; 5) r e s u lta n t d a m a g e ." 6 8 3 F . S u p p . 1487, 1499 (N J 19881. 26T h e S e n a te R e p o rt e m p h a siz e d t h a t th e "p re e m p tio n of re g u la tio n or p ro h ib itio n w ith re s p e c t to c ig a re tte a d v e rtis in g is narrowly phrased to preem pt only S ta t c a c lio n h w aid-on. smoking and health. I t w ould in no w ay affect" th e p o w ^ ^ ; a ^ B t o t e . r . . w ith respect to th e ta x a tio n or th e prohibition of sm oking in public .j3 lx d d in g s.,J H ,^ 5 i ^ f e i i i ^ b t i S i n ^ B i o r i o n s . " S. R ep. No. 9 1 -5 6 6 . o. 12 necessary to render a product "reasonably 8af proscriptions on intentional fraud rely onl *' '*** I** uniform standard: falsity. Thus, we cond !Su * **a<V phrase "based on smoking and health" fairlv h **** /cion nnesltnrwueirdi drloAeaes nn rotft eAnnAcortmmrp\nac>ssn t4hUe. _m_ore gene' raJdtrt, r *'**^ make fraudulent statements. Accordingly 1 claim based on allegedly fraudulent statement! respondents'advertisements are not pre-emmoH - -- the 1969 Act.2728 Conspiracy to Misrepresent or Conceal Material F Petitioner's final claim alleges a conspiracy ^ respondents to misrepresent or conceal materia] concerning the health hazards of smoking.2* The Uo. duty underlying this claim is a duty not to consjHr, commit fraud. For the reasons stated in our anal petitioner's intentional fraud claim, this duty is n m * ^ empted by 5(b) for it is not a prohibition "bated** smoking and health" as that phrase is properly constnw Accordingly, we conclude that the 1969 Act does n o t * empt petitioner's conspiracy claim. ***' VI To summarize our holding: The 1965 Act did not nr*, empt state law damages actions; the 1969 Art pre-emou petitioner's claims based on a failure to warn and th* neutralization of federally mandated warnings to the exusu th at those claims rely on omissions or inclusions in respon dents'advertising or promotions; the 1969 Act does not pre empt petitioner's claims based on express warranty, intentional fraud and misrepresentation, or conspiracy. The judgment of the Court of Appeals is accordingly reversed in part and affirmed in part, and the u remanded for further proceedings consistent with opinion. It is so ordered Justice Blackmun, with whom Justice Kennedy and JUSTICE Souter join, concurring in part, concurring in the judgment in part, and dissenting in part. I The Court today would-craft a compromise position concerning the extent to which federal law pre-empts persons injured by cigarette manufacturers' unlawful 27Both J ustice Blackmun and J ustice Scalia challenge the lev: a' generality employed in our analysis. JUSTICE BLACKMUN contends that as a m atter of consistency, we should construe failure-to-warn claim as based on smoking and health, but rather as based on the broader duf> "to inform consumers of known risks." Post, at 13. JUSTICE Stal-U contends th at, again as a m atter of consistency, we should construe fraudulent m isrepresentation claims not as based on a general duty fvrs to deceive but rath er as "based on smoking and health." Admitted}) each of these positions has some conceptual attraction. However, oar ambition here is not theoretical elegance, but rather a fair understand* of congressional purpose. To a n a ly z e f a ilu r e to w arn c laim s a t th e h ig h e st level of generality (a* JUSTICE Blackmun w ould h a v e u s do} w ould re n d e r th e 1969 a m e n d m e n ts a lm o st m ean in g less and would pay too little respect to Congr** s u b sta n tia l re w o rk in g of th e Act. On th e o th e r h an d , to analyze fra* c la im s a t th e lo w e st level of g e n e ra lity (a s JUSTICE SCALIA w ould hav* u s do) w ould c o n flic t b o th w ith th e b a ck g ro u n d p re su m p tio n ******* p re e m p tio n a n d w ith leg islativ e h is to ry t h a t p la in ly e x p resses an mi** to p re s e rv e th e "police re g u la tio n s " o f th e S ta te s . See supra, n-2S 28T h e D is tr ic t C o u rt d e sc rib e d th e ev id e n ce of conspiracy as "E v id en c e p r e s e n te d by [p e titio n e r], p a r tic u la rly t h a t c o n t a in e d * r. ~ < d o cu m en ts of [resp o n d en ts] th em selv es, in d icates . . . .th a t th e r.wu*-- of which th ese [respondents] w ere and are a p a rt entered * so p h isticated conspiracy. T h e conspiracy w as organized to u n d erm in e, an d n eu tralize inform ation com ing from th e scientific m p d if r il r n m m n n i t v " P Q u n n + 1 /<00 f* 804 0433 The U n ited S ta te s LAW WEEK 60 I w 4711 tt h pnduct from bringing state common-law damages claims Against those manufacturers. I, however, find the Court's divided holding with respect to the original and amended versions of the federal statute entirely unsatisfactory. Our precedents do not allow us to infer a scope of pre-emption Ibeyond that which clearly is mandated by Congress' language. In my view, neither version of the federal legislation at issue here provides the kind of unambiguous ^ evidence of congressional intent necessary to displace state 5common-law damages claims. I therefore join parts I, II, 'III, and IV of the Court's opinion, but dissent from parts V "and VI. A I agree with the Court's exposition, in part III of its opinion, of the underlying principles of pre-emption law, and in particular with its recognition that the pre-emptive scope of the Federal Cigarette Labeling and Advertising Act (the 1965 Act) and the Public Health Cigarette Smoking Act of 1969 (the 1969 Act) is "governed entirely by the express language" of the statutes' pre-emption provisions. Ante, at 10. Where, as here, Congress has included in legislation a specific provision addressing--and indeed, entitled--pre emption, the Court's task is one of statutory interpreta tion--only to "identify the domain expressly pre-empted" by the provision. Ante, at 11. An interpreting court must . "begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.'" FMC Corp. Vv.Holliday, 498 U. S . __ , __ (1990) (slip op. 4), quoting Park 'N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U. S. 189, 194 (1985). See California Coastal Comm'n. v. Granite y Rock Co., 480 U. S. 572, 591-593 (1987); California Federal ' Savings & Loan Assn. v. Guerra, 479 U. S. 272, 282 (1987) % (opinion of Marshall, J.). We resort to principles of implied pre-emption--th at is, inquiring whether Congress has 7 occupied a particular field with the intent to supplant state law or whether state law actually conflicts with federal law, see English v. General Electric Co., 496 U. S. 72, 79 (1990)--only when Congress has been silent with respect to pre-emption. I further agree with the Court that we cannot find the " state common-law damages claims at issue in this case pre empted by federal law in the absence of clear and unambig uous evidence th a t Congress intended that result. See ante, at 9. The Court describes this reluctance to infer pre emption in ambiguous cases as a "presumption against the pre-emption of state police power regulations." Ante, at 11-12. Although many of the cases in which the Court has invoked such a presumption against displacement of state law have involved implied pre-emption, see, e.g., Florida Rime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 146-152 (1963); Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 236-237 (1947), this Court often speaks in general terms without reference to the nature of the pre-emption at issue in the given statutory scheme. See, e.g., Maryland v. Louisiana, 451 U. S. 725, 746 (1981) ("Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law"); Avocado Growers, 373 U. S., at 146-147 ("[W]e are not to conclude that Congress legislated the ouster of this [state] J' 8tatute . . . in the absence of an unambiguous congressional y| mandate to that effect"); Bethlehem Steel Co. v. New York $ State Labor Relations Bd., 330 U. S. 767, 780 (1947) ("Any indulgence in construction should be in favor of the States, because Congress can speak with drastic clarity whenever chooses to assure full federal authority, completely placing the States") (opinion of Frankfurter, J.). The principles of federalism and respect for state +V\i+ nv'xrlnylio P o n r f 'e n ln r+ o n o o +a iirsrl ri y-n_ emption where Congress has not spoken directly to the issue apply with equal force where Congress has spoken, though ambiguously. In such cases, the question is not whether Congress intended to pre-empt state regulation, but to what extent. We do not, absent unambiguous evidence, infer a scope of pre-emption beyond that which clearly is mandated by Congress' language.1 I therefore agree with the Court's unwillingness to conclude that the state common-law damages claims at issue in this case are pre empted unless such result is `" the clear and manifest purpose of Congress.'" Ante, at 9 (quoting Rice v. Santa Fe Elevator Corp., 331 U. S., at 230). B I also agree with the Court's application of the foregoing principles in part IV of its opinion, where it concludes that none of petitioner's common-law damages claims are pre empted by the 1965 Act. In my view, the words of 5(b) of th at Act ("No statement relating to smoking and health shall be required in the advertising of any cigarettes the packages of which are labeled in conformity with the provisions of this Act") can bear only one meaning: that States are prohibited merely from "mandating particular cautionary statements . . . in cigarette advertisements." Ante, at 11. As the Court recognizes, this interpretation comports with Congress' stated purpose of avoiding `" di verse, nonuniform, and confusing labeling and advertising regulations'" relating to smoking and health. Ante, at 12 (quoting 15 U. S. C. 1331(2)). The narrow scope of federal pre-emption is thus apparent from the statutory text, and it is correspondingly impossible to divine any "clear and manifest purpose" on the part of Congress to pre-empt common-law damages actions. II My agreement with the Court ceases at this point. Given the Court's proper analytical focus on the scope of the express pre-emption provisions at issue here and its acknowledgement that the 1965 Act does not pre-empt state common-law damages claims, I find the Court's conclusion th at the 1969 Act pre-empts at least some common-law damages claims little short of baffling. In my view, the modified language of 5(b), 15 U. S. C. 1334(b) ("No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this Act"), no more "clearly" or "manifestly" exhibits an intent to pre-empt state common-law damages actions than did the language of its predecessor in the 1965 Act. Nonetheless, the Court reaches a different conclusion, and its reasoning warrants scrutiny. A The Court premises its pre-emption ruling on what it terms the "substantial changes" wrought by Congress in 5(b), ante, at 14, notably, the rewording of the provision to pre-empt any "requirement or prohibition" (as opposed merely to any "statement") "imposed under State law'." As an initial matter, I do not disagree with the Court that the phrase "State law," in an appropriate case, can encompass the common law as well as positive enactments such as statutes and regulations. See ante, at 16. I do disagree, 'T h e C o u rt c o n s tru e s c o n g ressio n al in ro a d s on s ta t e p o w e r n a rro w ly in o th er contexts, as well. For exam ple, the C ourt repeatedly h a s held hat, in o rd e r to w aive a S ta te 's sov ereig n im m u n ity fro m s u it in fe d e ra l c o u rt, C ongress m u s t m ake its in te n tio n "u n m ista k ab ly clear in th e language o f th e s ta tu te ." Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 MQRSl- r w / ~ . , i t v dOl TT 999 9 9 M Q 9 0 i 805 D-ny 6 0 LW 4 7 1 2 T h e U n ite d S ta te s LAW WEEK C'jf'.y.vtfvs'i' however, with the Court's conclusion that "State law" as used in 5(b) represents such an all-inclusive reference. Congress' intention in selecting that phrase cannot be understood without considering the narrow range of actions--any "requirement or prohibition"--that Congress specifically described in 5(b) as "imposed under" state law. See United States v. Morton, 467 U. S. 822, 828 (1984) ("We do n o t. . . construe statutory phrases in isolation; we read statutes as a whole. Thus, the words [in question] m ust be read in light of the immediately following phrase"); Jarecki v. G.D. Searle & Co., 367 U. S. 303, 307 (1961) ("The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress"); see also Norfolk & Western R. Co. v. Train Dispatchers, 499 U. S .__ , __ (1991) (slip op. 5-6) ( S t e v e n s , J., dissenting) (declining to read the phrase "all other law, including State and municipal law" broadly). Although the Court flatly states that the phrase "no requirement or prohibition" "sweeps broadly" and "easily encompass! es] obligations that take the form ofcommon law rules," ante, at 15, those words are in reality far from unambiguous and cannot be said clearly to evidence a congressional mandate to pre-empt state common-law damages actions. The dictionary definitions of these term s suggest, if anything, specific actions mandated or disal lowed by a formal governing authority. See, e.g., Webster's Third New International Dictionary 1929 (1981) (defining "require" as "to ask for authoritatively or imperatively: claim by right and authority" and "to demand as necessary or essential (as on general principles or in order to comply with or satisfy some regulation)"); Black's Law Dictionary 1212 (6th ed. 1990) (defining "prohibition" as an "[a]ct or law prohibiting something"; an "interdiction"). More important, the question whether common-law damages actions exert a regulatory effect on manufacturers analogous to that of positive enactments--an assumption crucial to the Court's conclusion th at the phrase "require m ent or prohibition" encompasses common-law actions--is significantly more complicated than the Court's brief quotation from San Diego Building Trades Council v. Garmon, 359 U. S. 236, 247 (1959), see ante, at 15, would suggest. ____ _ The effect of tort law on a manufacturer's behavior is necessarily indirect. Although an award of damages by its very nature attaches additional consequences to the m anufacturer's continued unlawful conduct, no particular course of action (e.g., the adoption of a new warning label) is required. A manufacturer found liable on, for example, a failure-to-wam claim may respond in a number of ways. It may decide to accept damages awards as a cost of doing business and not alter its behavior in any way. See Goodyear Atomic Corp. v. Miller, 486 U. S. 174, 185-186 (1988) (corporation "may choose to disregard [state] safety regulations and simply pay an additional" damages award if an employee is injured as a result of a safety violation). Or, by contrast, it may choose to avoid future awards by dispensing warnings through a variety of alternative mechanisms, such as package inserts, public service advertisements, or general educational programs. The level of choice th at a defendant retains in shaping its own behavior distinguishes the indirect regulatory effect of the common law from positive enactments such as statutes and administrative regulations. See Dewey v. R. J. Reynolds Tobacco Co. r 121-N.J. 69, 90, 577 A.2d 1239, 1249 (1990); ___=_____ icy and Civil LiabilityfA Modest 1423, 1454 (1980). Moreover, ' from riirp rt fnrm c of-npim latirm See Ferebee v. Chevron Chemical Co., 237 U. ^ _ 164, 175, 736 F. 2d 1529,1540, cert, denied, 469 -- (1984). : j p*** Despite its earlier acknowledgement, consistent foregoing conception of damages actions, that "there general, inherent conflict between federal pre-em pt** state warning requirements and the continued vitath w state common law damages actions," ante, at 12,1the Co m apparently finds Garmons statement that "regulation** be as effectively exerted through an award of damage** through some form of preventive relief," 359 U /sT juL T sufficient authority to warrant extinguishing the ' law actions at issue in this case. See ante, at 14-15. 1 not persuaded. Not only has the Court previously guished Garmon,23 but it has declined on several rccvta occasions to find the regulatory effects of state tint 1* direct or substantial enough to warrant pre-emption In Goodyear Atomic Corp. v. Miller, for example, the Court distinguished, for purposes of pre-emption analysfe. "direct state regulation" of safety matters from *tb* incidental regulatory effects"of damages awarded pursuant to a state workers' compensation law. 486 U. S., at 1 & Relying in part on its earlier decision in Silkwood v. Kerr- McGee Corp., 464 U. S. 238, 256 (1984),4 the Court stated th at "Congress may reasonably determine th at incidental regulatory pressure is acceptable, whereas direct regulatory authority is not." 486 U. S., at 186. Even more recently, the Court declined in English v. General Electric Co., 496 U. S., at 86, to find state common-law damages claims for emotional distress pre-empted by federal nuclear energy law. The Court concluded that, although awards to former employees for emotional distress would attach "additional consequences" to retaliatory employer conduct and conld lead employers to alter the underlying conditions about which employees were complaining, ibid., such an effect would be "neither direct nor substantial enough"to warrant pre-emption. Id., at 85. In light of the recognized distinction in this Court's juris prudence between direct state regulation and the indirect regulatory effects ofcommon-law damages actions, it cannot be said th at damages claims are clearly or unambiguously "requirements" or "prohibitions" imposed under state law. The plain language of the 1969 Act's modified pre-emption provision simply cannot bear the broad interpretation the Court would impart to it. B Not only does the text of the revised 5(b) fail clearly or 2C ongress, in fact, h a s expressly allow ed common-law damage a rb cm to survive w hile pre-em pting other, m ore direct form s of state regulative S ee, e .g ., C o m p re h e n siv e S m o k e le ss Tobacco H e a lth E d u c a tio n Art t i 1986, 7 ,1 0 0 S ta t. 3 4 ,1 5 U . S. C. 4401 etseq.; O c cupational Safety a&4 H e a lth A ct o f 1970, 84 S ta t. 1500, 29 U . S. C. 6 5 1 et seq., a s eonairve* in G a d e v. N a tio n a l S o lid Wastes Mgm t. A s s n .,___ U . S . ___ (1992s. 3T h e C o u r t h a s ex p la in ed t h a t Garm on, in w h ic h a s ta te com m on-la dam ag es aw ard w as found to be pre-em pted by th e N ational Lata* R elatio n s Act, involved a special "presu m p tio n of federal pre-empt!-* re la tin g to th e p rim ary jurisdiction o f th e N ational Labor R e la te B oard. See Brown v. Hotel Employees, 468 U. S. 491,502 (1984r.Ea^baA v. General Electric Co., 496 U . S . 72, 8 6 -8 7 , n. 8 (1990). 'T he C ourt in Silkwood declined to find sta te punitive damage aa*4 p re -e m p te d b y fe d e ra l n u c le a r s a fe ty la w s, ex p lain in g : "It m ay ba tba th e aw ard of dam ages based on th e sta te law of negligence of *rti lia b ility is re g u la to ry in th e sen se th a t a n u c le a r p la n t will be threataoerf w ith d a m a g e s lia b ility if i t does n o t conform to s ta t e s ta n d a rd s , but than reg u lato ry consequence w as som ething th a t C ongress was quits wtS* to accept." 464 U. S., a t 256. A lthough th e C ourt h as noted, th at t* d e c isio n in Silkw o od w a s b a s e d in "s u b s ta n tia l p a rt" on afRnest--- evidence in th e legislative history suggesting th a t CongT d -- in te n d to include com m on-law dam ages rem edies w ithin the prr-svr field, see English, 496 U. S., a t 86, Silkwood's discussion '* re g u la to r y e ffe c ts of t h e com m on law is in s tru c tiv e a n d ha beo r*t*rt on in R n h sp o n en t ppppo. Rpp p. tr. Goodvear. 486 U. S., a t 166 ~r fc-23-92 The United States LAW WEEK - 6 0 LW 4 7 1 3 manifestly to require pre-emption of state common-law state common-law damages actions. See ante, at 12 ages actions, but there is no suggestion in the legisla (concluding that;_Congress' expressed intent to avoid tiv e history th at Congress intended to expand the scope of diverse, nonuniform, and confusing regulations "most k the pre-emption provision when it amended the statute in naturally refers to positive enactments by [state legislatures I 1969. The Court acknowledges the evidence that Congress and federal agencies], not to common law damages r itself perceived the changes in 5(b) to be a mere "clarifica actions"). tion]" of the existing narrow pre-emption provision, ante, at Finally, there is absolutely no suggestion in the 14 (quoting S. Rep. No. 91-566, p. 12 (1969) (hereinafter S. legislative history that Congress intended to leave plaintiffs Rep.)), but it dismisses these statements of legislative who were injured as a result of cigarette manufacturers' intent as the "`views of a subsequent Congress.'" Id., at 14, unlawful conduct without any alternative remedies; yet that quoting United States v. Price, 361 U. S. 304, 313 (1960). is the regrettable effect of the Court's ruling today that The Court is wrong not only as a factual matter--for the many state common-law damages claims are pre-empted. statements of the Congress th at amended 5(b) are contem The Court in the past has hesitated to find pre-emption poraneous, not "subsequent," to enactment of the revised where federal law provides no comparable remedy. See pre-emption provision--but as a legal matter, as well. This Rabin, A Sociolegal History of the Tobacco Tort Litigation, Court accords "great weight" to an amending Congress' 44 Stan. L. Rev. 853, 869 (1992) (noting the "rather strong interpretation of the underlying statute. See, e. g., Red Lion tradition of federal deference to competing state interests in Broadcasting Co. v. FCC, 395 U. S. 367, 380-381 & n. 8 compensating injury victims"). Indeed, in Silkwood, the (1969). Court took note of "Congress' failure to provide any federal Viewing the revisions to 5(b) as generally remedy" for injured persons, and stated that it was "diffi nonsubstantive in nature makes sense. By replacing the cult to believe th at Congress would, without comment, word "statement" with the slightly broader term, remove all means of judicial recourse for those injured by "requirement," and adding the word "prohibition" to ensure illegal conduct." 464 U. S., at 251. See also id., at 263 th at a State could not do through negative mandate (e. g ., ( B l a c k m u N , J., dissenting) ("[i]t is inconceivable th at banning all cigarette advertising) that which it already was Congress intended to leave victims with no remedy at all"). forbidden to do through positive mandate (e.g., mandating Unlike other federal statutes where Congress has eased particular cautionary statements), Congress sought to the bite of pre-emption by establishing "comprehensive" "clarifly]" the existing precautions against confusing and civil enforcement schemes, see, e.g., Ingersoll-Rand Co. v. nonuniform state laws and regulations. S. Rep., p. 12.*I5 McClendon, 498 U. S . __ , __ (1990) (slip op. 9-10) (dis Ju st as it acknowledges the evidence that Congress' cussing 502(a) of ERISA), the Cigarette Labeling and '' rges in the pre-emption provision were nonsubstantive, Advertising Act is barren of alternative remedies. The Act Court admits th at "portions of the legislative history of merely empowers the Federal Trade Commission to the 1969 Act suggest th at Congress was primarily con- regulate unfair or deceptive advertising practices (15 I cemed with positive enactments by States and localities." U. S. C. 1336), establishes minimal criminal penalties Ante, at 15. Indeed, the relevant Senate report explains (misdemeanor and fine not to exceed $10,000) for violations that the revised pre-emption provision is "intended to of the Act's provisions (1338), and authorizes federal include not only action by State statute but by all other courts, upon the Government's application, to enjoin administrative actions or local ordinances or regulations by violations of the Act (1339). Unlike the Court, I am any political subdivisions of any State," a list remarkable unwilling to believe that Congress, without any mention of for the absence of any reference to common-law damages state common-law damages actions or of its intention actions. S. Rep., p. 12. Compare, e.g., 29 U. S. C. dramatically to expand the scope of federal pre-emption, 1144(a) and (cXl) (ERISA statute defines "any and all State laws" as used in pre-emption provision to mean "all laws, decisions, rules, regulations, or other State action having the effect of law") (emphasis added). The Court would have eliminated the only means ofjudicial recourse for those injured by cigarette manufacturers' unlawful conduct. Thus, not only does the plain language of the 1969 Act dismisses this statem ent with the simple observation that fail clearly to require pre-emption of petitioner's state "the language of the Act plainly reaches beyond such common-law damages claims, but there is no suggestion in [positive] enactments." Ante, at 15. Yet, as discussed the legislative history that Congress intended to expand the above, the words of 5(b) ("requirement or prohibition") do scope of the pre-emption provision in the drastic manner not so "plainly" extend to common-law damages actions, and th at the Court attributes to it. Our obligation to infer pre the Court errs in placing so much weight on this fragile emption only where Congress' intent is clear and manifest textual hook. mandates the conclusion that state common-law damages The Court further acknowledges that, at the same time actions are not pre-empted by the 1969 Act.6 that Congress amended the pre-emption provision of 5(b), it made no effort to alter the statement of purpose contained in 2 of the 1965 Act. Ante, at 14, n. 19. Although the Court relegates this fact to a footnote, the continued vitality of 2 is significant, particularly in light of the Court's reliance on the same statement of purpose for Ill Stepping back from the specifics of the Court's pre emption analysis to view the result the Court ultimately reaches, I am further disturbed. Notwithstanding the Court's ready acknowledgement that "`[t]he purpose of its earlier conclusion th at the 1965 Act does not pre-empt I ` In the one reported case construing the scope of pre-em ption under th e 1965 Act, B anzhafv. F C C --a case of w hich C ongress w as aw are, see S- R ep., p. 7--th e C o u rt of A p p e a ls for th e D is tric t of C olu m b ia C irc u it Oaed th e te rm "a ffirm a tiv e r e q u ir e m e n ts " to d e sc rib e 5 (b )'s b a n on "s ta te m e n tls ]." 132 U . S. A p p . D .C . 14, 22, 405 F. 2d 1082, 1090 (1968), - c ert- denied sub nom. Tobacco Institute, Inc. v. F C C , 396 U. S. 842 i ^lSSE)). It is b u t a sm a ll s te p from "a ffirm a tiv e re q u ire m e n t" to th e , converse, "n e g a tiv e r e q u ir e m e n t" ("p ro h ib itio n "), a n d , from th e re , to th e S *ingle explanatory p h ra se, "re q u ire m e n t or prohibition." `Every C ourt of A ppeals to consider the question, including th e T hird C ircuit in an e arlier opinion in this case, sim ilarly has concluded th a t s ta t e c o m m o n -la w d a m a g e s claim s a re not e x p re ssly p re -e m p te d u n d e r th e 1969 A ct. S ee, e .g .y Cipollone v. Liggett Group. Inc., 789 F. 2d 181, 185-186 (CA3 1986), cert, denied, 479 U. S. 1043 (1987); Pennington v. Vistron Corp., 876 F. 2d 414, 418 (CA5 1989); Roysdon v. R .J . Reynolds Tobacco Co., 849 F . 2d 230, 234 (CA6 1988); Palmer v. Liggett Group, In c.y 825 F. 2d 620, 625 (CA1 1987). See also Dewey v. R .J . Reynolds Tobacco Co., 121 N J . 69, 85, 577 A.2d 1239, 1247 (1990); Forster v. R J . Reynolds Tobacco C o ., 437 N.W .2d 655, 658 (M inn. 1989). *I f ) -r ** V * 07 SUPREM E COURT INDEX OU LW 4 7 1 4 T h e U n ite d S ta te s LAW WEEK 6-23-< Congress is the ultimate touchstone' of pre-emption analysis," ante, at 9 (quoting Malone v. White Motor Corp., 435 U. S. 497, 504 (1978)), the Court proceeds to create a crazy quilt of pre-emption from among the common-law claims implicated in this case, and in so doing reaches a result that Congress surely could not have intended. The most obvious problem with the Court's analysis is its frequent shift in the level of generality a t which it examines the individual claims. For example, the Court states that fraudulent misrepresentation claims (at least those involv ing false statements of material fact in advertisements) are "not predicated on a duty *based on smoking and health'but rather on a more general obligation--the duty not to deceive," and therefore are not pre-empted by 5(b) of the 1969 Act. Ante, at 22. Yet failure to warn claims--which could just as easily be described as based on a "more general obligation" to inform consumers of known risks--implicitly are found to be "based on smoking and health" and are declared pre-empted. See ante, a t 18. The Court goes on to hold that express warranty claims are not pre-empted because the duty at issue is undertaken by the manufacturer and is not "imposed under State law." Ante, at 19. Yet, as the Court itself m ust acknowledge, "the general duty not to breach warranties arises under state law," ibid, (emphasis added); absent the State's decision to penalize such behavior through the creation of a commonlaw damages action, no warranty claim would exist. In short, I can perceive no principled basis for many of the Court's asserted distinctions among the common-law claims, and I cannot believe that Congress intended to create such a hodge-podge of allowed and disallowed claims when it amended the pre-emption provision in 1970. Although the Court acknowledges th at 5(b) fails to "indicate that any familiar subdivision of common law claims is or is not pre-empted," ante, at 17, it ignores the simplest and most obvious explanation for the statutory silence: that Congress never intended to displace Btate common-law damages claims, much less to cull through them in the manner the Court does today. I can only speculate as to the difficulty lower courts will encounter in attem pting to implement the Court's decision. IV By finding federal pre-emption of certain state commonlaw damages claims, the Court today eliminates a critical component of the States' traditional ability to protect the health and .safety of their citizens. Yet such a radical readjustment of federal-state relations is warranted under this Court's precedents only if there is clear evidence th at Congress intended that result. Because I believe th at neither version of the Federal Cigarette Labeling and Advertising Act evidences such a clear congressional intent to pre-empt state common-law damages actions, I respect fully dissent from parts V and VI of the Court's opinion. J u s t i c e S c a l i a , with whom J u s t i c e T h o m a s joins, concurring in the judgment in part and dissenting in part. Today's decision announces what, on its face, is an extraordinary and unprecedented principle of federal statutory construction: that express pre-emption provisions must be construed narrowly, "in light of the presumption against the pre-emption of state police power regulations." Ante, at 12. The life-span of this new rule may have been blessedly brief, inasmuch as the opinion th at gives it birth in P art I proceeds to ignore it in Part V, by adjudging at least some of the common-law tort claims at issue here pre empted. In my view', there is no merit to this newly crafted doctrine Of narrow, construction. Under the Supremacy CThus6;ilT.=S .:Const., Art. VI, cl. 2, our job is to interpret Congress's decrees of pre-emption neither narrowly n, broadly, but in accordance with their apparent meaning we did that job in the present case, we would find, unde the 1965 Act, pre-emption ofthe petitioner's failure-to-war claims; and under the 1969 Act, we would find pre-emptio: of the petitioner's claims complete. I The Court's threshold description of the law of pre emption is accurate enough: Though we generally sum[e] that the historic police powers of the States [are] not to be superseded by . . . Federal Act unless that [is] the clear and manifest purpose of Congress,'" ante, at o (quotingRice v. Santa Fe Elevator Corp., 331 U. S. 218 230 (1947), we have traditionally not thought that to require express statutory text. Where state law is in actual conflict with federal law, see, e.g., Pacific Gas & Elec. Co. v. Energ\ Resources Conservation and Development Comm'n, 461U S 190, 204 (1983), or where it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of CongTess," Hines v. Davidowitz, 312 U. S. 52 67 (1941), or even where the nature of Congress's regula tion, or its scope, convinces us th at "Congress left no room for the States to supplement it," Rice, supra, at 230, we have had no difficulty declaring th at state law must yield The ultimate question in each case, as we have framed the inquiry, is one of Congress's intent, as revealed by the text structure, purposes, and subject matter of the statutes involved. See, e.g., English v. General Elec. Co., 496 U. S. 72, 78-79 (1990); Shaw v. Delta Air Lines, Inc., 463 U S 85,95(1983). The Court goes beyond these traditional principles, however, to announce two new ones. First, it says that express pre-emption provisions must be given the narrowest possible construction. This is in its view the consequence of our oft-repeated assumption that, absent convincing evidence of statutory intent to pre-empt, "`the historic police powers of the States [are] not to be superseded,'" see ante, at 11-12. But it seems to me that assumption dissolves once there is conclusive evidence of intent to pre empt in the express words of the statute itself, and the only remaining question is what the scope of that pre-emption is meant to be. Thereupon, I think, our responsibility is to apply to the text ordinary principles of statutory construction. That is precisely what our express pre-emption cases have done. Less than a month ago, in Morales v. Trans World Airlines, Inc., 504 U. S .__ (1992), we held that the Airline Deregulation Act's provision pre-empting state laws "relating to [airline] rates, routes, or services," 49 U. S. C App. 1305(a)(1), was broad enough to reach state fare advertising regulations despite the availability of plausible limiting constructions. We made no mention of any "plain statement" rule, or rule of narrow' construction, but applied the usual " `assumption that the ordinary meaning of thr statutory] language accurately expresses the legislative purpose.' " Morales, supra, a t __ (slip op., at 6) (quoting FMC Corp. v. Holliday, 498 U. S .__ , __ (1990) (slip op . at 4)) (emphasis added). And last Term, in Norfolk & Western R. Co. v. American Train Dispatchers Ass'n, 499 U. S. __ (1991), we interpreted an express preempuon provision broadly despite the fact th at a w e ll-re sp e c te d canon of statutory construction supported a narrower reading. See id., a t __ (slip op., at 11); id., at -- fsbp op a t 3-4) (Stevens, J., dissenting). We said not a word a "presumption against . . . preemption," ante, at 11, t.;.'. was to be applied to construction of the text. In light of our willingness to find p r e -e m p tio n in absence of any explicit statem ent of p r e - e m p tiv e in te n t, t - .''.(23-92 T he U n ited S ta tes LAW WEEK 60 I W 471 a notion that such explicit statements, where they exist, Eire of construction, the Court finds (not surprisingly) that none ibject to a "plain-statement" rule is more than somewhat of petitioner's claims--common-law failure to warn, breach odd. To be sure, our jurisprudence abounds with rules of of express warranty, and intentional fraud and misrepre "plain statement," "clear statement," and "narrow construc sentation--is pre-empted under 5(b) of the 1965 Act. And tion" designed variously to ensure that, absent unambigu save for the failure-to-wam claims, the Court reaches the t ous evidence of Congress's intent, extraordinary' constitu same result under 5(b) of the 1969 Act. I think most of tional powers are not invoked, or important constitutional th at is error. Applying ordinary principles of statutory protections eliminated, or seemingly inequitable doctrines construction, I believe petitioner's failure-to-wam claims applied. See, e.g., United States v. Mitchell, 445 U. S. 535, are pre-empted by the 1965 Act, and all his common-law 538 ( 1980) (waivers of federal sovereign immunity must be claims by the 1969 Act. "unequivocally expressed"); Will v. Michigan Dept, of State Police, 491 U. S. 58, 65 (1989) (clear statement required to II compel States to entertain damages suits against them With much of what the plurality says in Part V of its i selves in state courts); Atascadero State Hospital v. Scan opinion I agree--th at "the language of the [1969] Act i lon, 473 U. S. 234, 243 (1985) (abrogation of state sovereign plainly reaches beyond [positive] enactments," ante, at 15; immunity must be expressed "in unmistakable language"). th a t the general tort-law duties petitioner invokes against But none of those rules exists alongside a doctrine whereby the cigarette companies can, as a general matter, impose the same result so prophylactically protected from careless "requirement[s] or prohibition[s]" within the meaning of explicit provision can be achieved by sheer implication, with 5(b) of the 1969 Act, ibid.; and that the phrase "State law" no express statem ent of intent at all. That is the novel as used in that provision embraces state common law, ante, regime the Court constructs today. a t 16. I take issue with the plurality, however, on its The results seem odder still when one takes into account application of these general principles to the present case. the second new rule that the Court announces: "When Its finding that they produce only partial pre-emption of Congress has considered the issue of pre-emption and has petitioner's common-law claims rests upon three mispercep included in the enacted legislation a provision explicitly tions th at I shall discuss in turn, under headings indicating addressing that issu e,. . . we need only identify the domain the erroneously permitted claims to which they apply. expressly pre-empted by [that provision]." Ante, at 11. Once there is an express pre-emption provision, in other words, all doctrines of implied pre-emption are eliminated. A Pre-1969 Failure-to-Warn Claims This proposition may be correct insofar as implied "field" According to the Court,1 5(b) of the 1965 Act "is best ore-emption is concerned: The existence of an express pre read as having superseded only positive enactments by emption provision tends to contradict any inference that legislatures or administrative agencies that mandate Congress intended to occupy a field broader than the particular warning labels," ante, at 12 (emphasis added). statute's express language defines. However, with regard In essence, the Court reads 5(b)'s critical language "No I to implied "conflict" pre-emption--i. e., where state regula statement relating to smoking and health shall be required" tion actually conflicts with federal law, or where state to mean "No particular statement relating to smoking and regulation "stands as an obstacle to the accomplishment health shall be required." The Court reasons that because and execution" of Congress's purposes, Hines, supra, at common-law duties do not require cigarette manufacturers 67--the Court's second new rule works mischief. If taken to include any particular statem ent in their advertising, but seriously, it would mean, for example, that if a federal con only some statem ent warning of health risks, those duties sumer protection law provided that no state agency or court survive the 1965 Act. I see no basis for this element of shall assert jurisdiction under state law over any workplace "particularity." To require a warning about cigarette health safety issue with respect to which a federal standard is in risks is to require a "statement relating to smoking and effect, then a state agency operating under a law dealing health." If the "presumption against. . . pre-emption,"ante, with a subject other than workplace safety (e.g., consumer at 12, requires us to import limiting language into the 1965 protection) could impose requirements entirely contrary to Act, I do not see why it does not require us to import federal law--forbidding, for example, the use of certain similarly limiting language into the 1969 Act--so that a Safety equipment th at federal law requires. To my knowl "requirement . . . based on smoking and health . . . with edge, we have never expressed such a rule before, and our respect to advertising" means only a specific requirement, prior cases are inconsistent with it, see, e.g., Jones v. Rath and not just general, noncigarette-specific duties imposed Racking Co., 430 U. S. 519, 540-543 (1977). When this by tort law. The divergent treatment of the 1965 Act second novelty is combined with the first, the result is cannot be justified by the Act's statement of purposes, extraordinary: The statute that says anything about pre which, as the Court notes, expresses concern with "diverse, emption must say everything; and it must do so with great nonuniform, and confusing cigarette labeling and advertis exactitude, as any ambiguity concerning its scope will be ing regulations," 15 U. S. C. 1331(2) (emphasis added). read in favor of preserving state power. If this is to be the That statem ent of purposes was left untouched by Congress law, surely only the most sporting of congresses will dare to in 1969, and thus should be as restrictive of the scope of the say anything about pre-emption. later 5(b) as the Court believes it is of the scope of the The proper rule of construction for express pre-emption earlier one.2 provisions is, it seems to me, the one that is customary for 'tatutory provisions in general: Their language should be 1 T h e p lu ra lity is jo in e d by JUSTICES Bl.ACK.MUN, KENNEDY, AND given its ordinary meaning. FMC Corp. v. Holliday, supra, SOUTEK in its a n a ly sis nf th e 1965 Act. a t __ (slip op., at 4); Shaw v. Delta Air Lines, 463 U. S., at " T h e C o u rt a p p a re n tly th in k s th a t because 4 of th e Act, im posing the 97. When this suggests that the pre-emption provision was fe d eral p ack ag e -la b e lin g re q u ire m e n t, "its e lf sets fo rth a particular Attended to sweep broadly, our construction must sweep broadly as well. See, e.g., id., at 96-97. And when it 3aks a narrow scope of pre-emption, so must our idgment. See, e.g., Fort Halifax Packing Co., Inc. v. 'pyne, 482 U. S. 1, 7-8 (1987). Applying its niggardly rule s ta te m e n t," ante, a t 13, n. 16, 5(b), th e a d v ertisin g pre-em ption provision m u st be read to proscribe only those state law s th a t compel the use of particular sta te m e n ts in ad v ertising. Besides being a com plete non sequitur, th is re a so n in g proves too m uch: The sim ila r p rescrip tio n o f a particular w a rn in g in th e 1969 Act would likew ise re q u ire u s to confine th e pre-em ptive scope of th a t la te r statu te to specific, prescrip- 809 CP?3$ 6 0 LW 4 7 1 6 T h e U n ite d S ta te s LAW WEEK To the extent petitioner's claims are premised specifically today, that "[a] contract has no legal force qbn*,*., on respondents'failure (during the period in which the 1965 law that acknowledges its binding character.'' 49q l? B, Act was in force) to include in their advertising any state __ (slip op., at 12). Compare id., a t ___ (slip on ' ^ ment relating to smoking and health, I would find those (S t e v e n s , J., dissenting). I would find petitioner's lv claims, no less than the similar post-1969 claims, pre breach of express warranty pre-empted by 5(^1 0f r101 ^ fk empted. In addition, for reasons I shall later explain, see Act. infra, Part III, I would find pre-emption even of those L_/ e claims based on respondents'failure to make health-related Post-1969 Fraud and Misrepresentation Claims statements to consumers outside their advertising. Howev er, since 5(b) of the 1965 Act enjoins only those laws that require "statementlsl" in cigarette advertising, those of petitioner's claims that, if accepted, would penalize state ments voluntarily made by the cigarette companies m ust be deemed to survive. As these would appear to include petitioner's breach-of-express-warranty and intentional fraud and misrepresentation claims, I concur in the Court's judgment in this respect. According to the plurality, at least one of petit; intentional fraud and misrepresentation claims 80 *- * 5(b) of the 1969 Act because the common-1a w d ** underlying that claim is not "based on smoking and within the meaning of the Act. See ante, at 22 Ir understand the plurality's reasoning, it proceeds from thi implicit assumption th at only duties deriving from uZ* that are specifically directed to "smoking and health^' that are uniquely crafted to address the relation^ B between cigarette companies and their putative victim^ j J j Post-1969 Breach-of-Express-Warranty Claims within 5(b) of the Act, as amended. Given that N , Jersey's tort-law "duty not to deceive," ibid., is a genera] In the context of this case, petitioner's breach-of-express- one, applicable to all commercial actors and all lrinfa warranty claim necessarily embodies an assertion that commerce, it follows from this assumption that 5fb) respondents' advertising and promotional materials made not pre-empt claims based on breaches of that duty statements to the effect that cigarette smoking is not This analysis is suspect, to begin with, because - unhealthy. Making such statements civilly actionable plurality is unwilling to apply it consistently. As Jusnct certainly constitutes an advertising "requirement or Blackm un cogently explains, see ante, at 13 (opinion prohibition . . . based on smoking and health." The plu concurring in part and dissenting in part), if New Jersey's rality appears to accept this, but finds that liability for common-law duty to avoid false statements of material breach of express warranty is not "imposed under State fact--as applied to the cigarette companies'behavior_is not law" within the meaning of 5(b) of the 1969 Act. "based on smoking and health," the same must be said of "[RJather," it says, the duty "is best understood as under New Jersey's common-law duty to warn about a product's taken by the manufacturer itself." Ante, at 19. I cannot dangers. Each duty transcends the relationship between agree. the cigarette companies and cigarette smokers; neither duty When liability attaches to a particular promise or was specifically crafted with an eye toward "smoking and ' representation, it attaches by law. For the making of a health." None of the arguments the plurality advances to voluntary promise or representation, no less than for the support its distinction between the two is persuasive. That commission of an intentional tort, it is the background law Congress specifically preserved, in both the 1965 and 1969 against which the act occurs, and not the act itself, that Acts, the Federal Trade Commission's authority to police supplies the element of legal obligation. See Home B uild deceptive advertising practices, see 5(c) of the 1965 Act; ing & Loan Assn. v. Blaisdell, 290 U. S. 398, 429 (1934); 7(b) of the 1969 Act; ante, at 22-23, does not suggest that N.J. Stat. Ann. 12A:2-313(1), 12A:2-714, and 12A:2-715 Congress intended comparable state authority to survive (West 1962) (providing for enforcement of express warran 5(b). In fact, at least in the 1965 Act (which generally ties). Of course, New Jersey's law of express warranty excluded federal as well as state regulation), the exemption attaches legal consequences to the cigarette manufacturer's suggested that 5(b) was broad enough to reach law* voluntary conduct in making the warranty, and in that governing fraud and mispresentation. And it is not true narrow sense, I suppose, the warranty obligation can be that the States'laws governing fraud and misrepresentation said to be "undertaken by the manufacturer." But on that in advertising impose identical legal standards, whereas logic it could also be said that the duty to warn about the their laws "concerning the warning necessary to render a dangers of cigarettes is undertaken voluntarily by manufac product `reasonably safe'" are quite diverse, ante, at 23 turers when they choose to sell in New Jersey; or, more The question whether an ad featuring a glamorous, youth generally, that any legal duty imposed on volitional behav ful smoker with pearly-white teeth is "misrepresentative" ior is not one imposed by law. would almost certainly be answered differently from State The plurality cites no authority for its curious view, which is reason enough to doubt it. In addition, however, we rejected this very argument last Term in Norfolk & Western R. v. American Train Dispatchers Assn., where we construed a federal exemption "from the antitrust laws and from all other law," 49 U. S. C. 11341(a), to include an exemption from contract obligations. We observed, in a passage flatly inconsistent with the plurality's analysis to State. See ante, at 21 (discussing FTC's initial cigaretteadvertising rules). Once one is forced to select a consistent methodology for evaluating whether a given legal duty is "based on smoking and health," it becomes obvious th at the methodology must focus not upon the ultimate source of the duty (e.g., the common law) but upon its proximate application. Use of the "ultimate source" approach (i. e., a legal duty is not "based on smoking and health" unless the law from which it derives is directed only to smoking and health) would gut tive "req u irem en ts or prohibition[s]" (which, I presume, would not the statute, inviting the very "diverse, nonuniform, and include tort-law obligations to warn consumers about product dangers). confusing cigarette . . . advertising regulations" Congrrt^ i And under both the 1965 and 1969 versions of the Act, the package- sought to avoid. 15 U. S. C. 1331(2). And the problem labeling pre-emption provision of 5(a), no less than the advertising pre- not simply the common law: Requirements could * _ , . E a ^ f e a n gtmyiiHBn ^ drjWf irnfild have to be limited to the prescription of states free to impose general health- j abe] ing r equirements -T n ese results are obviously contrary to the Act's imposed by state executive agencies as well, so long a* were operating under a general statute a u th o riz in g thox )- supervision of "commercial advertisin cr" nr "u n fa ir t r * V >-23-92 The United. S ta tes LAW WEEK 6 0 LW 4 7 1 7 Lctices." New Jersey and many other States have such tutes already on the books. E.g., N. J. Stat. Ann. 56:8-1 et seq. (West 1989); N. Y. Gen. Bus. Law 349 et fgeq. (McKinney 1988 and Supp. 1992); Texas Bus. & Com. fGode Ann. 17.01 et seq. (1987 and Supp. 1992). fp I would apply to all petitioner's claims what I have called |it; "proximate application" methodology for determining hether they invoke duties "based on smoking and fle a lth "--I would ask, th at is, whether, whatever the source #of the duty, it imposes an obligation in this case because of iShe effect of smoking upon health. On that basis, I would ;|find petitioner's failure-to-warn and misrepresentation I'&laims both pre-empted. III ' Finally, there is an additional flaw in the plurality's Opinin, a systemic one th at infects even its otherwise -correct disposition of petitioner's post-1969 failure-to-wam claims. The opinion states that, since 5(b) proscribes only ."requirements] or prohibitions] . . . `with respect to . . . 5advertising or promotion' " state-law claims premised on iJhe failure to warn consumers "through channels of commu n i c a t i o n other than advertising or. .promotion" are not gSavered. Ante, at 22 (emphasis added); see ante, at 18. ig ilhis preserves not only the (somewhat fanciful) claims Jp ase d on duties having no relation to the advertising and Ijjjromotion (one could imagine a law requiring manufactur- to disclose the health hazards of their products to a te public-health agency), but also claims based on duties .t can be complied with by taking action either within the ertising and promotional realm or elsewhere. Thus, as appears to be the case in New Jersey--a State's immon law requires manufacturers to advise consumers of ifteir products' dangers, but the law is indifferent as to how hat requirement is met (i.e., through "advertising or iromotion" or otherwise), the plurality would apparently be prepared to find pre-emption as long as the jury were tructed not to zero in on deficiencies in the manufac- ers' advertising or promotion. I think th at is inconsistent with the law of pre-emption, vertising and promotion are the normal means by which manufacturer communicates required product warnings prospective customers, and by far the most economical eans. It is implausible that Congress meant to save :arette companies from being compelled to convey such ita to consumers through th at means, only to allow them 'be compelled to do so through means more onerous still, a practical m atter, such a "tell-the-consumers-any-way- |p^ou-wish" law compels manufacturers to relinquish the `advertising and promotion immunity accorded them by the fgSct. The test for pre-emption in this setting should be one fgW practical compulsion, i.e., whether the law practically compels the manufacturers to engage in behavior that | Congress has barred the States from prescribing directly, ., e.g., Ray v. Atlantic Richfield Co., 435 U. S. 151, 173, 25 (1978). Though the hypothetical law requiring disclo se to a state regulatory agency would seem to survive this t, I would have no difficulty finding that test met with spect to state laws that require the cigarette companies meet general standards of "fair warning" regarding .tooking and health. *** Like J u s t i c e "IB l a c k m u n , can only speculate as to the iculty lower courts will encounter in attempting to plement [today's] decision." Ante, at 14 (opinion concurg in part and dissenting in part). Must express preption provisions really be given their narrowest reasone construction (as the Court says in Part III), or need fy not (as the plurality does in Part V)? Are courts to ignore all doctrines of implied pre-emption whenever the statute at issue contains an express pre-emption provision, as the Court says today, or are they to continue to apply them, as we have in the past? For pre-emption purposes, does "state law" include legal duties imposed on voluntary acts (as we held last Term in Norfolk & Western R. Co.), or does it not (as the plurality says today)? These and other questions raised by today's decision will fill the law-books for years to come. A disposition that raises more questions than it answers does not serve the country well. LAURENCE H. TRIBE, Cambridge, Mass. (MARC Z. EDELL, BUDD LARNER GROSS ROSENBAUM GREENBERG & SADE P.C., ALAN M. DARNELL, and WILENTZ, GOLDMAN & SPITZER P.C., on the briefs) for petitioner; H. BARTOW FARR HI, Washington, D.C. (RICHARD G. TARANTO, KLEIN, FARR, SMITH & TARANTO, MUDGE, ROSE GUTHRIE, ALEX ANDER & FERDON, ARNOLD & PORTER, and SHOOK, HAR DY & BACON, on the briefs) for respondents. No. 91-810 CITY OF BURLINGTON, PETITIONER v. ERNEST DAGUE, S R ., E T AL. O N W RIT O F CERTIORARI TO TH E UNITED STATES COURT OF APPEALS FOR TH E SECOND CIRCUIT Syllabus No. 91 -8 1 0 . A rgued April 21, 1992--Decided Ju n e 24, 1992 A fter ru lin g on th e m erits for respondents, th e D istrict C ourt d eter m in e d t h a t th e y w ere "s u b s ta n tia lly p re v a ilin g " p a r tie s e n title d to "r e a s o n a b le " a tto r n e y 's fees u n d e r th e a tto r n e y 's fee p ro v isio n s of th e Solid W aste D isposal Act and th e C lean W ater Act. T he D istrict C o u rt c alc u la te d th e fee a w a rd by, inter alia, e n h a n c in g th e "lode star" am o u n t by 25% on th e grounds th a t respondents' attorneys w ere retain ed on a contingent-fee basis and th a t w ithout such enh an cem en t respondents would have faced su b stan tial difficulties in o b tain in g su ita b le counsel. T he C ourt of A ppeals affirm ed th e fee aw ard. H eld: The fee-shifting statu tes a t issue do not perm it enhancem ent of a fee aw ard beyond the lodestar am ount to reflect th e fact th a t a p a r ty 's a tto r n e y s w ere re ta in e d on a c o n tin g e n t-fe e b a s is . In P ennsyl vania v. Delaware Valley Citizens' Council for Clean A ir, 483 U . S. 711 (Delaware Valley II), th is C o u rt ad d ressed , b u t did n o t resolve, a question essentially identical to the one presented here. The position ta k e n by th e principal opinion in th a t case, id., a t 723-727 (opinion o f WHITE, J.)-- th a t th e typical federal fee -sh iftin g s ta tu te d o e s n o t p e r m it a n a tto rn e y 's fee a w a rd to b e e n h a n c e d on a c c o u n t o f co ntingency--is adopted. T he position advocated by Delaware Valley IT s c o n c u rre n c e , id., a t 731, 733 (O 'CONNOR, J ., c o n c u rrin g in p a rt an d concurring in ju d g m en t)-- th a t contingency en h an cem en t is ap p ro p ria te in defined lim ited circum stances--is rejected, since it is based upon propositions th a t are m utually inconsistent as a practical m atter; would m ake enhancem ent tu m upon a circular te st for a very larg e proportion of contingency-fee cases; and could not possibly achieve its supposed goal of m irroring m arket incentives to attorneys to tak e cases. Beyond th a t approach, th ere is no o ther basis, fairly derivable from th e fee-shifting statu tes, by which contingency en han cem en t, if adopted, could be restricted to few er th a n all contin gent-fee cases. M oreover, contingency enhancem ent is not com patible w ith th e fee-shifting sta tu te s a t issue, since such en h an cem en t would in effect pay for th e attorney's tim e (or anticipated tim e) in cases w h ere h is c lie n t does not p revail; is u n n e ce ssa ry to th e d e te rm in a tio n of a re a s o n a b le fee a n d in c o n s is te n t w ith th is C o u rt's g e n e ra l re je c tion of th e contingent-fee model in favor of th e lo d estar model, see, e. g .. B lanchard v. Bergeron. 489 U . S. 87, 96; a n d w ould m a k e th e se ttin g of fees m ore complex and arb itrary , hence m ore unpredictable, and hence m ore litigable. 935 F. 2d 1343, reversed in part. Sc.ALlA, J., delivered the opinion of the Court, in which REHNQU1ST, C. J., and W h ite , Kennedy, So u ter, and T hom as. J J .. m ined. Black- 08/04/92 11:24 f919 933 2S3 IL The U nited States JuV! 23.1992 THEBUREAUOFNATIONALAFFAIRS, INC, WASHINGTON. D.C, E x tra E d itio n N o ^ iS u p re m e C o u rt O p i n i o n s . l; _- Volume SO, No- SO Opinions Announced June 24,1992 The Supreme Court decided: SCHOOLS AND COLLEGES--Church and State ATTORNEYS-- F e e s Enhancement o flo d ester am ount o f attorneys' fees for contin gency is not perm itted under typical federal fee-shifting statute, w hich, like Solid W aste D isposal A ct and Clean W ater A ct provisions at issue in this case, authorizes award o f reasonable -attorneysT fees to. prevailing party. (Burlington v. Dagtie, N o . 91810) ........................................... - - ____ . - 7 . . . . . P age 4717 Inclusion in public secondary school graduation cerem ony o f prayer delivered by member o f clergy who is selected by school officials and instructed to com pose non-sectarian prayer consti tu tes governm ental coercion o f students to participate in reli gious exercise in violation o f First Amendment's Establishm ent C lause- (Lee v. W eisman, N o- 90-1014) ................. P age 4723 CRIMINAL LAW AND PROCEDURE--Speetiy Trial Presum ptive prejudice to defendant's ability to defend against crim inal charges, arising from delay o f eigh t and one-half years between indictm ent and arrest, when considered with facts that was extraordinarily long, that it was due to government's .genet in locating defendant, and that defendant asserted right to speedy trial prom ptly after learning of charges, requires dism issal o f indictm ent under Sixth. Am endm ent right to speedy trial. (Dogger: v, t/lS ,, N o . 9 0 -8 5 7 )........................... Page 4741 PRODUCT SAFETY AND LIABILITY--Pre-emption Section 5 (b ) o f 1965 Federal C igarette Labeling and Adver tising A ct, which provides that **[n]o statem ent relating to sm oking and health sh all be required in the advertising o f any cigarettes th e packages o f which axe labeled in conform ity with th e provisions o f this A ct," does not pre-empt state law dam age actions against cigarette m anufacturers based on their cigarette advertising and prom otional activities; Section 5(b) as am ended in 1969, w hich protides that *`[n]o requirem ent or prohibition based on sm oking and health sh all b e im posed under S ta te law w ith respect to the advertising or promotion o r law fully labeled cigarettes, pre-em pts sta te com m on law claim s based on failure to warn, to extent such claim s require showing that post-1969 advertising or prom otions should have included additional or clearer w arnings, and also pre-em pts fraudulent m isrepresenta tion daim s alleging th at m anufacturers neutralized federally m andated warnings in advertising and prom otions, but does not pre-empt claim s based on breach o f express warranty, on fraudu len t m isrepresentation by w ay o f false statem ents and conceal m ent o f m aterial facts in advertising, promotions, and other channels o f com m unication, and on conspiracy to m isrepresent or conceal m aterial facts concerning health hazards o f sm oking( Gpollone v. Liggett Group Inc., N o. 90-1038) - . Page 4703 Full Text of Opinions No. 94-1038 THOMAS CIPOLLQNE, INDIVIDUALLY a n d AS EXECUTOR OF THE estate OF ROSE D. CIPOELONE, PETITIONER c. LIGGETT GROUP, INC., ET AL ON WRIT OF CERTIORARI TO THE UNTIED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Syllabus No. 94-1038. Argued October S, 1991--R eargued Ja n u a ry 13, 1992--Decided Ju n e 24.1992 Section 4 o f the Federal Cigarette LeEeEngrad Advertising Act (1995 Act) required a conspicuous label warning of smoking's h ealth haz ards to be placed on every package of eigarattes sola in this country, while $ 5 of th a t Act, captioned "Preemption," provided; *(a) No statem ent relating to smoking and health, other th an the [4] s ta te m e n t. . . , shall be required on any cigarette package," a n a "Cb> No [soeh] statem ent -- shall be required is th e advertising of any cigarettes the packages,of which are labeled in conformity with" 4. Section 3(b) was amended by the Public H ealth Cigarette Smoking Act of 1969 (1969 Act) to specify; *No requirem ent or prohibition based on smoking and health shell be imposed under State law with respect to the advertising or promotion ofany cigarettes th e packages of which are [lawfully] labeled." Petitioner's com plaint in his action for damages invoked the District Courtis diversity jurisdiction and alleged, inter alia, th a t respondent cigarette m anufacturers were responsible for the 1984 death of h is m other, a sm oker since 1942. because they breached express warranties contained in their advertis ing, failed to w arn consumers about smoking's hazards, frandulently misrepresented those hazards to consumers, and conspired to deprive th e public of medical and scientific information about smoking, all in derogation of duties created by New Jersey law. The D istrict Court ultim ately ruled, among other things, th a t these claims were pre em pted b y .the 1965 and 1959 A rts to th e extent th a t th e claim s relied on respondents' advertising, promotional, and pnhlie relations NOTICE: These Opinions arc subject to fanao! rarto bfese pubticliiofl is die preliminary pfmt o f the United States Reports. Rtgdect are romcsied 20 notify the Reporter a! DedsfcS* 5apscm Gouft of the United S a to . Washington D.C 20543. o f any typographical cc other forro! toc. in urd that correct* may bo made before the prcEzzrinaiy print go to press- NOTE: Where it b deemed beatable: a syllabus (bcobootc) w31 bo raleaied * * * at the lane the Opiniao if issued. The xviliibuf attfututes co pan o f Ihc cpuim of the Court but has been prapetixl hy the Reporter of Dctfaonf for the eonvaneaee of the mulct. Sec UlUrtd Shires v. Drrnxl Lumber C o. 200 U S . 321. 3J7. 812 rTnn 4 01C fttn a ta * Bi ty Th*ArflfOB SdD t^a L A ffiiin * Ina t H l60 L \P 4 7 0 5 1 SUPREME COURT INDEX 08/04/i? 11:25 9 1 9 . 2 3 1253 CAROLIB SCIILIL.E.** T h e U n ited S ta te s U W W E E K . pcrivities after tb s effective date of th * 1965- Act- The C oart of with respect to advertising and promotions are ** jrfccaSed on -. ,Appeals affirmed oti th is point. dirty ``bssfcd an saioloou beaitii'' h a t ra th e r on a. more Beldi'T he judgm ent is reversed in p a rt and affirmed in part, a n d t u . -biigat.ton--th e doty nnt to deceive. case is remanded. / > . . (e` P i n n e r ' s d a im alleging a oanspiracy among respondents v. 893 S'- a-1 e e i , reversed in part, affirmed in part, and remanded. / i? TM =rePl1se n t or conceal m aterial facta concerning sm oking's heahfa J ustice Stsven!? d`el..i.v..e..r.e..d....t.h...e...o..p..inion of the C ourt w ith rtsp e cr^- t i n z a r d s is not pre-em pted, since th e predicate d oty not to conspire to P a rts I, U, H t and IV, concluding th a t 5 of th e 1965 Act did not to commit fraud t h a t underlies th a t claim is n o t a prohibition "eased pre-empt state law damages actions, b u t superseded only positive on smoking and health" as th a t f 5(b) phrase is properly eo nsruec. enactments by state and federal rulem aking bodies mandating particular warnings on cigarette labels or in cigarette advertisements. This conclusion is required by the sections precise and narrow prohibition of required cautionary "statem entisl": by the strong presumption against pre-emption of state police power regulations; by the fact th a t the required 54 warning does not fay i ts own effeet foreclose additional obligations imposed under state law; by the fact th at thore is no general, inherent con3ict between federal pre-emp tion of state wanting requirements and the continued vitality of common law damages actions and by the Act's stated purpose and regulatoty context, which establish th a t 5 was passed to prevent a multiplicity of pending and inverse "regulations," a word th a t most naturally refers to positive enactments rather than common law actions. J ustice Buckmun, joined by J ustice E ennedt a n d J ustice SouTER, concluded th a t the modified language of 15(b) in the I9e> A ct does not d early exhibit th e necessary congressional in te n t to pr<^ em pt state common-law damages actions, and therefore concurred i= th e judgm ent th a t certain o f petitioners failure to warm a n a frauds, le n t m isrepresentation claims, os well a s h is express w arranty M j conspiracy daim s, are not pre-empted by A ct J ustice Scaua. joined by J ustice Thomas, conduced t h a t al) of petitioner's common-law claims a re pre-em pted by th e 1969 A ct under ordinary principles ofstatutory consamdion, and therefore concurred in th e judgment th at certain of his past-1969 failure-to-wara daim s and certain of h is fraudulent misrepresentation claims a re pre empted. J ustice Steven^ joined by The Chief J ustice, J ustice White, and J ustice O'Connor, eondtodad in P a rts V a n d V I t h a t 5fbj of STEVENS, J-, announced th e judgm ent of th e Court an d delivered the th e 2969 Act p re em p ts certain of petitioner's failure to warn and opinion of the Court with respect to B arts I, H, IE , and 17, in which fraudulent m isrepresentation daim s, b u t does n o t pre-em pt other Rehnquist, C. j , an d `W a n s , Blackmon, O'Connob, Kennedy, ana such d aim s or th e d aim s based on express w arranty o r conspirator. SOUTER, J J , joined, and a n opinion with respect to P a rts V a n d VI, ir, ta) The broad language of amended 53(b) extends th e section's pre-emptive reach beyond positive enactm ents to include some which UBHNquisr, C. J , and White and O'Con'Nor. J J ,, joined. B lacKMUN, J , fileid a n opinion concurring in p a rt, concu rring i n th e common law damages actions. The statutoty phrase "requirem ent or prohibition" suggests no distinction between positive enactm ents and ju dgm ent in p art, a n d dissenting in p art, in which KENNEDY and Sot-TER, J J ., joined, Scalia. J-, Sled an opinion coneuning in the common law, b a t, in fact, easily encompasses obligations t h a t tak e judgm ent, in p a rt and dissenting i s p a rt, in which THOMAS, J , joined. th e form of common law rules, while the phrase Im posed under S tate law" d eariy contemplates common law a s well a s sta tu te s and regulations. This dees not mean, however, th a t 5(b) pre-empts all JUSTICE Stevens delivered the opinion of the Court, except as to Parts V and VL common law daim s, nor does the gtatate indicate th a t any familiar subdivision of common law is er is not pre-empted. Instead, the precise language of 13(h) m ust be fairly bufc-'in Kght of the presump tion against pre-emption--narrowly construed, and as eh of peti tioner's common law daim s m u st be examined to determ ine w hether "Warning: tbs Surgeon general Has Determined teat Cigarette Smoking is Dangerous to Tour HEALTH." a federal Statute enacted in 1969 requires that warning (or a variation, thereof) to appear in a conspic it is in fact pre-empted- The central inquiry in each ease is straight uous place on every package of cigarettes sold in the forward: w hether th e legal duty th a t is the predicat* of the- common taw damages action salisfes5To)'a express term s, giving those term s a fair b u t narrow reading- Each phrase within the section lim its the universe of common law claims pre-empted by th e statute. fa} Insofar a s d aim s u n d er either of petitioner's failure to w ars United States.1 The questions presented to ns by this case are whether that statute, or its IS65 predecessor which, required a less alarming label, pre-empted peti tioner's common law daims against respondent cigarette theories--*, e.. tim t respondents were ngliget in th e m anner th a t manufacturers. they tested, researched, sold, promoted, and advertised th eir ciga Petitioner is the son of Rose Cipollone, who began, rettes, and th a t they failed to provide adequate warnings of smok in g's consequences--require a showing t h a t respondents' post-1909 advertising or promotions should have included additional, or mors eleariy stared, warnings, those claims rely on a state law "require m ent or prohibition - - - with respect to -- advertising or promotion" smoking in 1942 and who died oflung cancer in 1984. He claims that respondents are responsibleforBoseCtpoHosie's death because theyhreached ejagess warranties contained in their advertising,because theyfailed to wgra consumers within SIb)'e m eaning and are pre-empted. about the hazards of smoking, because_th@fesudnlently"'' (.c) To the extent th a t petitioner h as a viable daim for broach of misrepresented those hazatiS~tb consumers, and because 3 express warranties, th a t daim is ro t pre-empted. While the general duty not to breach such warrantics-m0Bea-undfcir stS te law. a m anu facturer's liability to r th e breach derives from, and is m easured by. thejc&nsplred to deprive the public ofmedical and scien tific information about smoking- The Court of Appeals th e term s of th e warranty. A common law remedy for a contractual held that petitioner's state law claims were pre-empted by commitment voluntarily undertaken should not be regarded a s a federal statutes, 893 F. 2d 541 (CA3 1990), and other courts "requirem ent. . , imposed under S tale law* under 5(b>. have agreed with that analysis.2 The highest courts of the Id) Because 55(h) pre-em pts "prohibitionfer a s wen a s "require- ment(s]," i t supersedes petitioner's first fraudulent m isrepresentation theory, which is predicated on a state law prohibition against adver tising and promotional statem ents tending to minimize smoking's health hazards, and which alleges th a t respondents' advertising neutralized the effect of the federally mandated warning labels. However, th e claims based on petitioner's second fraudulent m isrepre/ a mentation theory--which alleges intentional fraud both by false r j .representation and concealment of m aterial facts--are n ot preempted. The concealment allegations, insofar as they rely on a state law duty to disclose m aterial facts through channels of communica tion other than advertising and promotions, do not involve an obliga tion "with respect to" those activities within |S(h)'s meaning. Moreover, those fraudulent misrepresentation daim s th at do arise `Public H ealth Cigarette Smoking Act of 196 9 ,P n b .L .9 1 -2 2 2 ,84S te t. 87, a s am ended, IS U. S, C. 51331-1340. Iti 198s, Congress am ended the statu te to require four more explicit warnings, used on a rotating basis. See Comprehensive Smoking Education A rt, Pub. L. 98-474, SB S tat- 2201, Because petitioner's claims arose before 1984, n either p arty relies on th is la te r Act. "The C ourt o f Appeals' analysis was initially sot forth in CipaUann v. Liggett Croup, Ins., 789 i\2 d 181 (CA 31986). Other federal courts have adopted a sim ilar analysis. See Pennington v. Vhtran. Carp., 876 P. 2d 414 (CA5 1989); Royadan v. I t J . Reynold!! Tobacco C o , 843 F - 2d 230 (CAo V388);Seep/ten v.Amerioxr.Srandm, Inc-, 825P2d 312 (C.Ml 1987); Palmer v .itg g e ti Group, Die., 825 F.2a 620 (CAi 19S7E ( Published each Tuesday except first Tuesday bt September, last Tuesday in July, and last Tuesday m December by T he Bureau of National Affaire. In c , 1231 Twemy-iffith Street, N.W ,, Washington, D.C. 20037, Subscription rates (payable in advance) S668.00 first year and 5632,00 per year thereafter. Second class postage paid at Washington, D .C . and a t additional mailing offices. |^ 3 - 9 2 T he U n ited S ta te s L A W WEEK 60-W -4705 'States of Minnesota and New Jersey, however, have held that the federal statutes did not pre-empt similar common law claims.3 Because of the manifest importance of the :.f issue, we granted certiorari to resolve the conflict, 50017. S--- (1991). We now reverse in part and affirm in part. 1 On August 1,1983. Rose CipoUonand her husband filed a complaint invoking the diversify jurisdiction of the Federal District Court. Their complaint alleged that Rose Cipollone developed lung cancer because she smoked cigarettes manufactured and sold by the three respondents. After her death in 1984, her husband Sled an amended complaint. After trial, he also died; their son, executor of both estates, now maintains this action. Petitioners third amended complaint alleges several different bases of recovery, relying on theories of strict liability, negligence, express warranty, and intentional tort. These claims, ah based on New Jersey law, divide into five categories. Th^design defect claims" allege that responds''cigarettes were-defectivehecaii5e,respondentsfeedto use a safer alternative design for their products and because the social value oftheir product was outweighed by the dangers it created (Count 2, App. 83-84). Tb? "failure to warn claims" allege both that the product was "defective as a result of [respondents'] failure to provide adequate warnings of the health consequences of cigarette smoking" (Count 3, App. 85) and that respondents "were negligent in y manner [that! they tested, researched, sold, promoted, ud advertised* their cigarettes (Count 4, App. 86). The "express warranty claims" allege that respondents had "expressly warranted th a t smoking the cigarettes which they manufactured and sold did not present amp;significant health consequences* (Count.7, App. 88). Tiw'fraudulent misrepresentation claims" allege that respondents had. wilfully "through their advertising, attempted to neutralize the [federally mandated] wamin[gT labels (Count 6, App. 87-88), and that they had possessed, hut had "ignored and felled to act upon" medical and scientific data indicating th at "cigarettes were hazardous toA e health ofconsumers" (Count 8, App. 89). Finally, tf^conspixacy to defraud claims* lege that respondents conspired to deprive the public of such medical and scientific data (Count 8, App- 89). As one of their defenses, respondents contended that the Federal Cigarette Labeling and Advertising Act, enacted in 1965, and its successor, the Public Health Cigarette Smoking Act of 1969, protected them from any liability based on their conduct after 1965. In a pretrial ruling, the District Court concluded that the federal statutes were intended to establish a uniform warning that would prevail throughout the country and that would protect cigarette manufacturers from being "subjected to varying require ments from state to state," Cipollone v, Liggett Group, Inc, 593 F. Supp. 1146, 1148 (NJ 1984), but that the statutes did not pre-empt common law actions. Id., at 1153-1170." Accordingly, the court granted a motion to strike the pre emption defense entirely. The Court of Appeals accepted an interlocutory appeal pursuant to 28 U- S. C. 1292(b),' and reversed. Cipollone v.Liggett.Group, Inc., 789 F.2d 181 (CAS 1986). The court rejected respondents' contention that the federal Acts expressly pre-empted common law actions, but accepted their contention that such actions would conflict with federal law. Relying ou the statement of purpose in the statutes,5 the court concluded that Congress' "carefully drawn balance between the purposes of warning the public of the hazards of cigarette smoking and protecting the interests of the national economy" would be upset by state law damages actions based on noncompliance with "warn ing, advertisement, and promotion obligations other than those prescribed in the [federal] Act" Id., a t 187. Accord ingly, the court held; "the Act pre-empts those, state law damage[s] actions relating to smoking and health that challenge either the adequacy of the warning on cigarette packages or the propriety of a party's actions with respect to the advertising and promotion of cigarettes. [Wlhere the success of a state law damagets] claim n ecessarily depends ou the assertion that a party bore the duty to provide a warning to consumers in addition to the warning Congress has required on cigarette packages, such claims are pre-empted as conflictingwith the Act." Ibid, (footnote omitted). The court did not, however, identify the specific c1a;ms asserted by petitioner that ware pre-empted by the Act. This Court denied a petition for certiorari, 479 U. S. 1043 (1987), and the case returned to the District Court for trial Complying with, the Court ofAppeals mandate, the District Court held that the failure to warn, express warranty, fraudulent misrepresentation, and conspiracy to defraud claims were barred to the te n t that they relied on respondents' advertising, promotional, and public relations activities after January 1, 1966 (die effective date of the 1965 Act). Cipollone v. Liggett Group, Inc., 649 F. Supp664, 669, 673-675 (NJ 1986)., The court so ruled that while the design defect claims were not pre-empted by federal law, those claims were barred on other grounds* Id., at 669-672. Following extensive discovery and a fourmonth trial, the jury answered a series ofspecial interroga tories and awarded $400,000 in damages to Rose Cipollone's husband- Inbrietitrejectedall ofthe fraudulent misrepre sentation and conspiracy claims, but found that respondent Liggett had breached its duty to warn and its express warranties before 1966. It found, however, that Rose Cipollone had "voluntarily and unreasonably encountered] a known danger by smoking cigarettes" and that 80ir of the responsibility for her injuries was attributable to her. See 893 FJ2d, at 554 (summarizing jury findings). For that reason, no damages were awarded to her estate. However, the jury awarded damages to compensate her husband for losses caused by respondents' breach of express warranty. On cross-appeals from the final judgment, the Court of Appeals affirmed the District Court's pre-emption rulings 1Forster V. R. J. Reynolds Tobacco Co., 437 N . W. 24 ESS [Minn. 1989); Deuxy H J. Reynolds Tobacco Co, 121 N J . 69,577 A- 2d 1239 (1990). AThe court explained: "However, th e existence of the p reso rt federally m andated w arning does n o t prevent an individual from tJafminE th a t xlU risk s of smoking are greater th an the warning indicates, and th at therefore such warning is inadequate. The eovrt recognizes th a t it will he extremely difficult for a plaintiff to prove th a t the present warning is inadequate to inform of the dangers, w hatever they may be- However, th e difficulty of proof cannot preclude the opportunity to he hoard, and affording th a t opportunity will not undermine th e purposes of the Act,* 393 F . Supp- tc It i s the p o li of the Congress, and d ie purpose of this chapter, to establish a comprehensive Fdrai program to deal with mgsrette labeling and advertising with respect to any relationship between smoking and health, whereby-- "(1) th e public may be adequately informed th a t cigarette smoking may be hazardous to health by ndusion of a w arning to th a t ef&et on cad package of cigarettes and "(2) commerce and the national economy m ay be (A) protected to the maximum extent consistent with th is declared policy a n d (B> not impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to anv relationship between amoldng ar.d health.' IS U. S. C. 1331 ( 1982 ed.). 'W e ar* not presented with any question concerning these claims. 27 04/92 11 9 1 9 933 1253 c a r o l ib SCHULER, W&H 017 The United States LA.W WEEK 60 LW 4706 , 10n. several issues not relevant but r e m a n d e d .f c a s e ^ ^ petiti(J11 &p ccrtiorari to packages of which are labeled in conformitv provisions of this Act" r*- to our d eo sx o ^ W ^ v e effect of the fed*! statutes. consider the pre-"" ^ ^ Although the Act took effect January l, lagg physicians h a i suspected a link between and illness for centuries ^ ^rst medical studies u m l s* u .a. nfHeaith Services, Report ofthe Surgeon Reducing i*1* Health Consequences of Smoking: ^Years-fflTProsI`<!SS5 (1989)* Ths ensuing decades saw a wide/sag of epidemiologic and laboratory studies on the hazards of smoking. Thus, by the time the Surgeon General convened an advisory committee to examine the issue in 1962, there were more than 7,000 publications examining the relationship between smoking and health. Id., a t 5-7. 119 6 4 the advisory committee issued its report, which stated as its central conclusion: "Cigarette smoking is a health hazard ofsufficient importance in the United States to warrant appropriate remedial action." U- S. Dept, of Health, Education, and Welfare, U. S. Surgeon General's Advisory Committee, Smoking and Health 33 (1964). Relying in part on th at report, the Federal Trade Commis sion (FTC), which, had long regulated unfair and deceptive advertising practices in the cigarette industry,7 promul gated a new trade regulation rule. That rule, which was to take effect January 1,1965, established that it would be a Act provided that its provisions affecting the 7" advertising would terminate on July i, 1969. As that termination date approached, federal au th o r^ prepared to issue further regulations on agarette mg. The FTC announced the reinstitution of i u 'j t S proceedings conearning a warning requirementfor advertisements. 34 Fed. Reg. 7917 (1969). The p S S .Communications Commission (FCC) would consider "a proposed rule which would baa broadcast of cigarette commercials by radio and stations." 34 Fed. Reg. 1959 (1969). State a u th o j^ ^ ^ ^ prepared to take actions regulating cigarette advert*. m eats.11 It was in this context that Congress enacted the PahBt Health Cigarette Smoking Act of 1969,12which the 1965 Actin several ways. First, the 1969 Actstrength- ened the warning label, in part by requiring a **-rfir-n that cigarette smoking "is dangerous" rather tRem tb^t jj "maybe hazardous." Second, the 1969 Act bannedc ig a re tte advertising in "any medium of electronic communication subject to IFCC3jurisdiction." Third, and rdated,*theT9 Act modified the pre-emption provision by replacing the original 5(b) with a provision that reads: f ' ; c violation of the Federal Trade Commission Act "to M l to "(b) No requirement orprohibition basedonsmokisg disclose, dearly and prominently, in all advertising and on and health shall be imposed under State law with every pack, box, carton, or container [of cigarettes] that respect to the advertising or promotion of soy-ciga cigarette smoking is dangerous to health and may cause rettes the packages of which are labeled in conformity death from cancer and other diseases." 29 Fed. Reg. 8325 with, the provisions of this Act." (1964). Several States also moved to regulate the advertis ing and labeling of cigarettes. See, e.g,, 1963 N.Y. Laws, ch.470; see also H I Cong. Rec. 13900-13902 (1965) (statement of Sea. Moss). Upon a congressional request, the FTC postponed enforcement ofits new regulation for six months. In July 1965, Congress enacted the Federal Cigarette Labeling and Advertising Act The 1965 Act effectively adopted half of the FTC's regulation: the Act mandated warnings on cigarette packages (5(a)), but Although the Act also directed the PTC not to "take any action before July 1*1971, with respect to'its peningtrade regulation rule proceedingrelatingto cigarette advertising." the narrowing ofthe pre-emptionprovision to prohibit only restrictions "imposed under State law" cleared the way for the FTC to extend the warning-label requirement to print advertisements for cigarettes. TheFTC did so in 1972. See In. re Loridard, 80 F.T.C. 455 (1972). ( barred the requirement of Such warnings in cigarette HI advertising (5(b)>f Section 2 of the Act declares the statute's two purposes;__' iA,,rtitcnlee_VvuI uobf the Constitution nravviiudwesj--bfseiaaSv--Lthuee l*aaww&sremf" 1 ) adequatelyinforming the publfc that cigarette smoking may be hazardous to health, and (2) protecting the national economy from the burden imposed by diverse, nonuniform and confusing cigarette labeling and advertising regula tions.16 In furtherance o f the fir s t purpose, 54 of the Act made it unlawful to sell or distribute any cigarettes in the United States unless the package bore a conspicuous label stating: "CAUTION: CIGARETTE SMOKINGMay BE HAZARD OUS TO YotJR Health." In furtherance of the second purpose, 5, captioned "Preemption," provided in part: "(a) No statement relating to smoking and health, United States "shall be the supreme Law .ofthe I-and; . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding," Art. VL cL 2. Thus, since our decision in McCulloch v. Maryland, 4 Wheat. 316,427 (1819), it has been, settled that state law that conflicts with federal law is "without effect." Marylandv. Louisiana, 451 U. S, 725,746 (1981). Consideration ofissues arising under the Supremacy Clause "start[sl with the assumption that the historic police powers of the- States [are] not to be superseded by. . . Federal Act unless th at [is] the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp.t 331 U .S..218, 230 (1947). Accordingly,- "Tt]he other than the statement required by section 4 of this purpose of Congress Is the ultimate touchstone'" of pre Act, shall he required on any cigarette package. emption. analysis, .Malone v. White Motor Corp., 435 U. S. "(b) No statement relating to smoking and health shall 497,504 (1978) (quotingRetail Clerks v. Schermerhom, 3"5 be required in the advertising of any cigarettes the' U, S. 96, 103 (1963)). Congress'intent may be "explicitly stated in the statute's ' See, <>.., B ttw n Sc. W illiam son Tobacco Corp-> 56 F.T .C . 956 (1960); L iggett & M yers Tohacco Co., 5$ F.T-C. 334119581; P hilip M orris & Col, Ltd, 51 F.T.C. S57 (1955); R. X Reynolds Tobacco C o, 48 F.T.C. 682 language or implicitly contained in its structure and ` purpose." Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977). In the absence of an express congressional com- (1952); London Tobacco Co,, 36 FtT.C. 282 (1943). *Pnb. L. 89- 32, 79 S la t. 282,.^ a m e n d e d , 15 U . S. C. 1331-1340. preserved "the an th arjjy w f the " For xaiipU, th California S tate Senate passed a total ban on bota .pre^san;Bfca speet to unfair or deceptive-acts or a." 79 S t a r .-283. _ p rrn t and_elestrortic cig a re tte a d v ertisem ente. "C alifornia S en ate Vate* B a n O n C ig a re tte A dvertising," W ashington P o st, J u n e 26,1569, y. iS . 0 ' ~Z~tf!a " P a h -L. 91-222, 84 S tat. 87 " ~* 08/04/92 11:28 9 1 9 933 1253 CAROLIB SCHULER, ff&H -23-92 The United States LAW WEEK at " "tate law is pre-empted if that law actually conflicts presumption against the pre-emption'o` itl i c r o l l a w , j o e P a c i f i c G o t* & E L c c . 0 < r* v . E n e r g y a r e g o l a t i c m c . T i i i c j `ig "ia c m n lull esources ConservationandDevelopmentComm'n, 461U. S. ness of a narrow reading of 5. )Q, 204 (19SSJ, or if federal law so thoroughly occupies a required in 1 4 does not by its own effect foreclose additional gjsla.ti.ve field "`as to make reasonable the inference that obligations imposed'"under state law. That Congress nngros.it left no room for the States to supplement it.'" requires a particularwaming label does not automatically 'delity Federal Savings &. LoanAssn. v. De la Cuesta, 458 pre-empt a regulatory field. See McDermott v. Wisconsin, . S. 141, 153 (1982) (quoting Rice v. Santa Fe Elevator 228 U. S. 115,131-132 (1913). Third, there is no general, 3777., 331 U-S., at 230). inherent conflict between federal pre-emption of state The Court of Appeals was not persuaded that the pre- warning requiremeats-and the continued vitality of state nption provision in the 1969 Act encompassed state commonlaw damages actions. For example, in the Compre immon Jaw daims.13 789 F.2d, at 185-186. It was also hensive Smokeless Tobacco Health Education Act of jt persuaded that the labeling obligation imposed by both 1986,14 Congress expressly pre-empted State or local ie 1965 and 1969 Acts revealed a congressional intent to imposition of a "statement relating to the use of smokeless cert exclusive federal control over every aspect of the tobacco products and health" but, at the same time, ilationship between cigarettes and health. Id-, at 186. preserved state law damages actions hased on those evertheless, reading the statute as a whole in the light of products. See 15 U. S. C. 4406. All of these consider ie statement of purpose in 2, and .considering the ations indicate that 5 is best read as having superseded otential regulatory effect of state common law actions on only positive enactments by legislatures or administrative ie federal interest in uniformity, the Court of Appeals agencies that mandate particular warning labels.15* included that Congress had impliedly pre-emptedpetitioo- This reading comports with the 1965 Act's statement of :'s claims challenging the adequacy of the warnings on purpose, which expressed an intent to avoid "diverse, thels_or. in. advertising or the propriety of respondents' nonuniform, and confusing labeling and advertising dvertising and promotional activities. Id., at 187, regttteitoEr_wiUi respect-to--any relationship--between In cu r opinion, the pre-emptive scope ofthe 1965 Act and smoking and health." Read against the backdrop of se X969 Act is governed entirely by the express language regulatory activity undertaken by state legislatures and i5 ofeach Act. When Congress has considered the issue federal agencies in response to the Surgeon General's f pre-emption and has included in the enacted legislation report, the term "regulation" most naturally refers to provision explicitly addressing that issue, and when that positive enactments by those bodies, not to common law rovioion provides a "reliable indirium of congressional damages actions. it with respect to state authority," Malone v. White The regulatory context ofthe 1965 Act also supports such Tatar Carp., 435 U- S-, at 505, "there is no need to infer a reading. As noted above, a warning requirement promul angressional intent to pre-empt state laws from the gated by the FTC and other requirements under consider ubstantive provisions" of the legislation. California ation by the States were the catalyst for passage of the 'ederal Savings & LoanAssn v. Guerra, 479 U. S. 272,282 1965 Act These regulatory actions animated the passage 1987}(opinion ofMarshall, J.). Such reasoning is a variant of 5, which reflected Congress' efforts to prevent "a f the familiar principle of expressio unius est exclusio multiplicity of State and local regulations pertaining to Iterius: Congress' enactment of a provision defining the labeling ofcigarette packages," H.R. Rep. No. 89-449,89th re-emotive reach of a statute implies that matters beyond Cong., 1st Sess, 4 (1965), and to "pre-empt [all] Federal, oat reach are not pre-empted. In this case, the other State, and local authorities] from requiring any statement revisions of the 1965 and 1969 Acts offer no cause to look . . . relating to smoking and health in the advertising of eyond 5 ofeachAct, Therefore,we need only identify the cigarettes." Id ., at 5 (emphasis supplied)-15 .otnain expressly pre-empted by each ofthose sections. As For these reasons, we conclude that 5 of the 1965 Act be 1965 and 1969 provisions differ substantially, we only pre-empted state and federal rulemaking bodies from onsider each in turn. mandating particular cautionary statements and did not IV pre-empt state law damages actions.17 In the 1965 pre-emption provision regarding advertising S5(b)), Congress spoke precisely and narrowly. "No tatement relating to smoking and health shall be required z the advertising of [properly labeled] cigarettes." Section Ka) used the same phrase ("No statement relating to molting and health") with regard to cigarette labeling. As 5(a) made clear, that phrase referred to the sort of Taming provided for in 4, which set forth verbatim the taming Congress determined to be appropriate. Thus, on heir face, these provisions merely prohibited state and sderal rule-making bodies from mandating particular autionary statements on cigarette labels (5(a)) or in iga-Tfitte advertisements (5(b)). nd the precise words ofthese provisions, this reading s appropriate for several reasons. First, as discussed ibove, we must construe these provisions in light of the V Compared to its predecessor in the 1965 Act, the plain language of the pre-emption provision in the 1969 Act is much broader. First, the later Act bare not simply "state ments" but rather "requirement^] or prohibitionTsl. . . im- " Pob. L. 99-2 5 2 .1 0 0 S tat. 30. as codified. 15 U. S. C. 14401-CC08. lsCf. Banckafv. FCC. 132 U . S . A pp. D .C. 14, 405 F 2 d 1082 (1968), eert. denied, 396 U . S . 842 (1969) (holding th a t 1965 Act (d n o t pre-em pt F C C s fairness policy as applied to cigarette advertising). MJUSTICE Scalia ta k e s issue w ith o u r n arro w re ad in g of th e ph ru se "N o statem ent.* H is criticism , how ever, re lics solely on a n in te rp re ta tio n of those two words, artificially severed from both textual and legislative context. As dem onstrated above, th e phrase "No statem en t" in $5(b) refers to th e sim ilar phrase in S(a), which refers in tu rn to 4, which its e lf s e ts forth a particular statem ent- T his context, com bined w ith th e " la its express pre-em ption analysis, the m a rt did not distinguish Fetwecil th e pre-em ption provisions of th e 1965 and 1969 Acts; i t relied olely on th e latter, apparently believing th a t th e 1969 provision w as at e ast os broad as th e 1965 provision. T he court's ultim ate ruling th a t leittio n e r's claim s w ere im pliedly pre-em pted effective J a n u a r y 1 , 1966, e fle c ts th e Fact t h a t th e 1969 A ct did n o t a lte r th e sta te m e n t o f purpose regulatory setting in which Congress acted, establishes th a t a narrow read in g o f th e phrase "No statement" is appropriate. ''T h is interpretation of the 1965 Act appears to be consistent with respondents' contemporaneous understanding of th e Act. Although respondents have participated in a great deal of litigation relating to c ig a rette u se beginning in th e 1950's, i t a p p ea rs t h a t th is case is th e firs t --- ,. *t-,,liens oe J f 2 0018. 00 i 8 Q -W i 04/92 11 =29 9 1 9 933 1253 CAROLIB SCHULER, W&H 6 0 LW 4708 The United States LAW WEEK posed under State law." Second, the later Act reaches soma duty owing to plaintiff"). It is ^ ^ beyond statements "in the advertising" to obligations "with 1969 version of5(b) differs from its predecees^u* * respect to the advertising or promotion" of cigarettes. the common law wouldnotnonnally re q u ij^ ^ ^ v ^ tte e t Notwithstanding these substantial differences in lan any specific statement on its packages or in guage, both petitioner and respondents contend that the ments, it is the essence ofthe common law to 1969 Act did not materially alter the pre-emptive scope of that axe either affirmative requirementsemrct federal law.5* Their primary support for this contention is prohibitions. Wethereforerejectpetitioner's ~nrmmT*" a sentence in a Committee Report which states that the the phrase "requirement or prohibition" 1969 amendment "clarified" the 1965 version of 5(b). S. Art's pre-emptive scope to positive r* Rep, No. 91-566, p. 12 C1969). We reject the parties' tures and agencies. * reading as incompatible with the language and origins of Petitioner's second argument for excluding com the amendments. As we noted in another context, "[ijnfer- rules from the reach of5(b) hinges on *** ences from legislative history cannot rest on so slender a under State law." This argument &>Hs as welL reed. Moreover, the views of a subsequent Congress form since Erie R. v. Tompkins, 304 U. S. 64 (1938L a hazardous basis forinferring the intent ofan earlier one" recognized the phrase "state law"to in^H e United States v. Price, 361U. S. 304,313 (I960). The 1969 well as statutes and regulations. Indeedjust lastTana.J!* Art worked substantial changes in the law: rewriting the Court stated that the phrase "all other law, label warning, banning broadcast advertising, and allowing and municipal law" "does not admit of [a] distincxky*** the FTC to regulate print advertising. In the context of between positive enactments and common-law n k ''J such revisions and in light of the substantial changes in liability." Norfolk & Western R. Co. v. Train TMTrttrl> ,. wording, we cannot accept the parties' claim that the 1969 499 U. S._-- , -- (1991) (slip op, a t 1 1 ). A lth o u g h Act did not alter the reach of 5(b).19 presumption againstpre-emption might give goodteaumte Petitioner next contends that 5(b), however broadened construe the phrase "state law" in a pre-emption prnifojn by the 1969 Act, does not pre-empt common, law actions. more narrowly than an identical phrasein another-- He offers two theories for limiting the reach ofthe amended in this case such a construction is not apprupriateT'iir 5(b). First, he argues that common law damages actions explained above, the 1965 version of 5 was preose and do not impose "requirement^] or prohibitionls]" and that narrow on its face; the obviously broader ^^ Congress intended only to trump "state statute[sl, injunc- 1969 version extended that section's pre-emptive tion[sl, or executive pronouncementCsj."" We disagree; Moreover, while the version of the 1969 Ad. passed by i y such an analysis is at odds both with the plain words of Senate pre-empted "any State statute or regulation with the 1969 Act and with the general understanding of respect to . . . advertising or promotion," S. Sep. So. common law damages actions. The phrase -"[n]o require 91--566, p. 16, the Conference Committee replaced this ment or prohibition'' sweeps broadly and suggests no language with "State law with respect to advertising or distinction between positive enactments and common law; promotion " In such a situation, 5(b)'s pre-emption. t to the contrary, those words easily encompass obligations "state law" cannot fairly be limited to positive pwachna.tf that take the form of common law rules. As we noted in That the pre-emptive scope of 5(b) cannot be KrnitoA^ another contest, "[state] regulation can be as effectively positive enactments does not mean that that section pre exerted through an award of damages as through some empts all commonlaw claims. Forexample, as responds* form ofpreventive relief. The obligation to pay compensa concede, 5(b) does not generally pre-empt "state-Jaw tion can be, indeed is designed to be, a potent method of obligations to avoid marketing cigarettes with manufactur governing conduct and controlling policy." San Diego ing defects or to use a demonstrably safer alternative Building Trades Council v. Carman, 359 U. S. 236, 247 design for cigarettes."21 For purposes of 5(b), the common (1959). law is not of a piece. Although portions of the legislative histmw of the.19.69---- Nor.dnes-the statute-indicate-that-any fa'miforrgnnriv>. Act suggest that Congress was primarily concerned with sion of common law claims is or is not pre-empted. We positive enactments by States and localities, see S. Rep. No. therefore cannotfollow petitioner's passing suggestion *>) 91-566, p. 12, the language of the Art plainly reaches 5(b) pre-empts liability for omissions but not for acts, or beyond such enactments. "Wemust give effect to this plain th at 5(b) pre-empts liability for unintentional torts but act language unless there is good reason to believe Congress for intentional torts. Instead we must fairly but--in light intended the language to have some more restrictive of the strong presumption against pre-emption--narrowly meaning.1* Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 97 construe the precise language of 5(b) and we must look to (1983). In this case there is no "good reason to believe" that each of petitioner's common law rbim s to determine Congress meant less than what it said; indeed, in light of whether it is in fact pre-empted.22 The central inquiry in the narrowness of the 1965 Act, there is "good reason to each case is straightforward: we ask whether the legal believe" that Congress meant precisely what it said in duty that is the predicate of the common law- damages amending that Act. action constitutes a "requirement or prohibition,based an Moreover, common law damages actions ofthe sort raised smoking and health . . . imposed under State law with by petitioner are premised on the existence of a legal duty respect to . . . advertising or promotion," givingthat clause and it is difficult to say that such actions do not impose a fair but narrow- reading. As discussed below, each phrase "requirements or prohibitions." See W. Prosser, Law of Torts 4 (4th ed. 1971); Black's Law Dictionary 1489 (6th ed. 1990) (defining "tort" as "always [Involving! .a.violation of = B rief for Respondents 14. "" P e titio n e r m ak e s m uch o f th e fa ct th a t C ongress did n ot txprrMr; " See Brieffor Petitioner 33-24; BriefforRespondents 21-23. in clu d e com m on la w w ithin f 0's pre-em ptive reach, a s i t h a s in " As noted above, th e 1965 Act's sta te m e n t o f purpose ( 2) suggested sta tu te s . See, e.g., 33 U. S. C. 5 tl4 4 (cX l); 12 U . S. C- ITlSi-Jt i t h a t C ongress w a s concerned .p rim arily w ith "regulations'--positive R e sp o n d en ts m ak e m uch o f th e fa ct t h a t C ongress did not - ... en actm en ts,-rath er.th aiv eo n tro u D law dam ages actions. Although th e sa v in g s c lau se p reserv in g common la w claim s, again, a s i t h a s in . 1969-A ct d id n o rs m e n tf '5 '2 f w c !,a r e n e t p ersu ad ed th a t th e reten tio n of s ta tu te s . S e e .e .j?., 17 U. S . C. $ 3 0 1 . U nder o u r analysis a f 5 . t W j th a t portion 2if.ihe'ISSs'Ac"is a sufficient basis for rejecting thf. plain onrissions m ake perfect sense: Congress w as:neither pre-em ptnii -- - - - - " - i * ^ ---** * ---***-*- ------- - addfcd to 5;b). Savini? rn^'mvsrs ' 08/04/92 11:30 9 1 9 933 1253 CAROLIB SCHULER, "&H 020 1-92 The United States LAW WEEK in that clause limits the universe ofcommon law claims pie, a manufacturer expressly preinisefi'ty e m p ts ^ t y til ctafeuta. z u o d ie d b ills t f L coiitifftfffcai iWeconsider each, category ofdamages actions in turn. In honor that promise could not fairly be said to be "imposed so,-we express no opinion on whether these actions tinder State law," but rather is best understood as under viable daims as a matter of state law; we assume taken by the manufacturer itself. While the general duty ndo that they are. not to breach warranties arises under state law, the particular "requirement. . . based on smoking and health '^Failure to Warn . . . with respect to the advertising or promotion [of] .^'To establish liability for a failure to warn, petitioner must cigarettes" in an express warranty claim, arises from the .fshow that "a warning is necessary to make a product. . . manufacturer's statements in its advertisements. In short, treasonably safe, suitable and fit for its intended use,1*that a common law remedy for a contractual commitment :'respondents failed to provide such a warning, and that that voluntarily undertaken should not be regarded as a 'M ure was a proximate cause of petitioners injury. Tr. "requirement . . . imposed under State law" within the 2738. In this case, petitioner offered two closely related meaning of 5(b).M theories concerning the.failure to warn: first, that respond That the terms of the warranty may have been set forth dents "were negligent in the manner [that] they tested, in advertisements rather than in separate documents is .researched, sold, promoted, and advertised" their cigarettes; irrelevant to the pre-emption issue (though possibly not to and second, that respondents failed to provide "adequate the state law issue ofwhether the alleged warranty is valid warnings ofthe health consequences ofcigarette smoking." and enforceable) because although the breach of warranty App. 85--86. claim is made "with respect to advertising" it does not rest `"Petitioner's daims are pre-empted to the extent that they on a duty imposed under state law. Accordingly, to the rely on a state law "requirement or prohibition . . . with extent that petitioner has a viable claim for breach of respect t o . advertising or promotion." Thus, insofar as express warranties made by respondents, that claim is not jfeimfc under either failure to warn theory require a pre-empted by'the 1969'A'ct. ------------- . -bowing that respondents* post-1969 advertising or promo- :. fens should have included additional, or more dearly Fraudulent Misrepresentation .-.stated, warnings, those claims are pre-empted. The Act Petitioner alleges two theories offiaudulent misrepresen Ttfees not, however, pre-empt petitioner's daims that rely tation. First, petitioner alleges that respondents, through w id ely on respondents* testing or research practices or other their advertising, neutralized the effect of federally man ';rons unrelated to advertising or promotion. dated warning labels. Such a claim is predicated on a state-law prohibition against statements in advertising and J0&eack ofExpress Warranty promotional materials that tend to minimize the health i'M r^Petitioner's daim for breach of an express warranty hazards associated with smoking. Such a prohibition, R in ses under N. J. Stat. Arm. 12A:2-313(IXal (West 1991), however, is merely the converse of a state law requirement $ which provides: that warnings be included in advertising and promotional "Any affirmation of feet or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an materials. Section 5(b) of the 1969 Act pre-empts both requirements and prohibitions; it therefore supersedes petitioner's first fraudulent misrepresentation theory. ' ' express warranty that the goods shall conform to the ; ^ affirmation or promise." Regulators havelong recognized the relationship between prohibitions on advertising that downplays the dangers of smoking and requirements for warnings in advertisements. ^Petitioner's evidence ofan expresswarranty consists largely For example, the FTC, in promulgating its initial trade .ictsftentente made in respondents' advertising. See 893 regulation rule in 1964, criticized advertising th at "asso 'X%2d, at 574, 576; 683 F. Supp. 1487, 1497 (NJ 1988). ciated cigarette smoking with such positive attributes as ...li^Bplying the Court of Appeals' ruling that Congress pre- contentment, glamour, romance, youth, happiness. . . at the .-.iempted "damageisl actions . . . that challenge . . . the .^propriety ofa party's actions with respectto the advertising same time suggesting that smoking is an activity at least consistent with physical health and weH-being." The :- Sad promotion of d g a re tte s 789 F.2d, at 187, the District Commission concluded: v7Court ruled that this daim "Inevitably brings into question ' [respondents'] advertising and promotional activities, and "To avoid giving a false impression that smoking [is] j. is therefore pre-empted" after 1965. 649 F. Supp., at 675. .n'As. demonstrated above, however, the 1969 Act does not innocuous, the cigarette manufacturer who represents the. alleged pleasnres or satisfactions of cigarette :>sweep so broadly: the appropriate inquiry is not whether smoking in his advertising must also disclose the a. daim challenges the "propriety" of advertising and serious risks to life that Smoking involves." 29 Fed- ^promotion, but whether the daim would require the Reg., at 8356. / 'imposition under state law of a requirement or prohibition Long-standing regulations of the Food and Drug Adminis- ;based on smoking and health with respect to advertising or j.-piDmotion. .-.-/'A manufacturer's liability for breach, of an express 'aTanty derives from, and is measured by, the terms of |r. $ a t warranty. Accordingly, the "requirements"imposed by express warranty claim are not "imposed under State but rather imposed by the warrantor.a If, for exam- aiJUSTICEScalia eanUnds that because the general duty to honor express warranties irises finder state law, every express warranty obligation is a "requirement. . .imposed under State law,' and that, therefore, the Act pre-empts petitioner's express warranty claim. J usticeScalia.mightbe correctifthe Ait pre-empted *linbMty"imposed under state law(ashe suggests,post, at 8);butinsteadtheActexpressly pre-emptsonlya "requiVentenforprohibition."imposedunderstate law. That a "contract bn* no legal force apart from the [stale] law that T h u s i t is th a t express w arran ty d a im s are said to sound in contract acknowledges its binding character,"Norfolk & Westernj?nf?ccgyCo. v. th a n in to rt. C om pare Black's L aw D ictionary 1459 (6 th od, 1990) A m erican. T ra in D ispatchers A s s n .,__ U. S. __, __ (1991), does not S "to rt": "T h e re m u s t alw ays be a violation o f som e d u t y . . .an d m ea n t h a t every co ntractual provision is "im posed u n d e r S ta te law ,* To `ta lly su ch d u ty m u s t a rise by operation o f law a n d n ot by m ere th e co n trary , common u n d e rstan d in g d icta te s t h a t a co n tractu al a m e n t o f th e parties*) w ith id., a t S22 (defining "contract": "An Vir*iA-eon ftxrn riAwonno vrVv*-? aaMtoo on -- re q u ire m e n t, although on3y enforceable u n d e r s ta te aw . is n o t "im posed" C ..-V , -T. __*T__ ; _ c ________ .' w v .____ _ 81 0' 08/04/92 11:32 0 9 1 9 933 1253 CAROLIB SCHULER, VV&H @021 6 0 LW 4-710 The United States LAW WEEK tration express a similar understanding ofthe relationship between required warnings and advertising that "negates or disclaims" those warnings: "A hazardous substance shall not be deemed to have met [federal labeling] requirements if there appears in or on the label__statements, designs, or other graphic material that in any manner negates or disclaims [the required warning]." 2 1 CFR 191.102 (1965). In this light it seems quite dear that petitioner's first theory of fraudulent misrepresentation is inextricably related to petitioner's first failure to warn theory, a theory that we have already conduded is largely pre-empted by 5(b). Petitioner's second theory, as construed by the District Court, alleges intentional fraud and misrepresentation both by "false representation of a material fact [and by] con cealment of] a material fact" Tr. 12727.25 The predicate of this claim is a state law duty not to make false state ments of material fact or to conceal such facts. Our pre emption analysis requires us to determine whether such a duty is the sort ofrequirement or prohibition proscribed by 5(blSection 5(b) pre-empts only the imposition of state law obligations "with respectto the advertising orpromotion" of dgarettes. Petitioner's claims that respondents concealed material facts are therefore not pre-empted insofar as those claims rely on a state law duly to disdose such facts through channels of communication other than advertising or promotion. Thus, for example, if state law obliged respondents to disdose material facts about smoking and health to an administrative ,agency, 5{b) would not pre empt a state law claim based on a failure to fulfill that obligation. Moreover, petitioner's fraudulent misrepresentation rlgimB that do arise with respect to advertising and promotions (most notably claims based on allegedly false statements ofmaterial fact madein advertisements) are not pre-empted by 5(b). Such claims are not predicated on a duty "based on smoking and health" but rather on a more general obligation--the duty not to deceive. This under standing of fraud by intentional misstatement is appropri ate for several reasons. First, in the 1969 Act, Congress offered no sign th at it wished to insulate cigarette manufac turers from longstanding rules governing fraud. To the .Contrary, both--the--1365-and -the--1969-Acts- explicitly reserved the FTC's authority to identify and punish deceptive advertising practices--an authority that the FTC had long exercised and continues to exercise. See 5(c) of the 1965 Act; 7(b) ofthe 1969 Act; see also nn. 7,9, supra. This indicates th at Congress intended the phrase "relating to smoking and health" (which was essentially unchanged by the 1969 Act) to be construed narrowly, so as not to proscribe the regulation of deceptive advertising.*1* Moreover, this reading of"based on smoking and health" is wholly consistent with the purposes of the 1969 Act. State law prohibitions on false statements of material fact do not create "diverse, nonuniform, and confusing" stan dards. Unlike state law obligations concerning the warning " The D istrict C o u rt stated th a t th is claim 'co n sists of th e following ele m en ts; D a r u a t e r ia l m isrepresentation o f ___fact [by false s ta te m e n t or concealm ent]; 2) knowledge o f the falsity . . 3 ) inten t th a t the m is rep re se n ta tio n b e retied upon; 4) justifiable re lia n c e __ ; 5) re s u lta n t dam age." 6S3 F . S a p p . 1437.1-499 ( N J 1988). " The S enate Report em phasised th a t the "preem ption of regulation or prohibition tvith respect-to ciga re tte advertising i s n n r ro w ly -p h m se d to ^ Stiuo^ iS a rt^' f'S ^ i-smokinj; and Aecriib...It-.wUid in no sal'ereiS*'' with respect to th e taxatSjffor the ie' prohibition o f amnlrfn g a n - pnh lir Ehs." S . Hep. N o. 9irf 6)-p. 12 necessary to render a product "reason ah ly^ ^ ^ r^ ^ proscriptions on intentional fraud rely uniform standard: falsity. Thus, w /co n d t^ U * 1 phrase "based on smoking and health* f i construed does not encompass th ei make fraudulent statements, A ccoring}^ claim based on allegedly fraudulent stat^ f l ^ respondents' advertisements are notnre^m ^=j? ***5 * the 1969 A ct57 P Conspiracy to Misrepresent or Conceal Material V ' Petitioner's final daim alleges a conspira^f0 reessppoonndents to misrepresent or conceal maaftperij concerning the health hazards ofsmnolrkiwingg* Thfaenrr v * duty underlying this daim is a duty not to commit fraud- For the reasons stated in our 2 * petitioner's intentional fraud claim, this duly ^ empted by 5(b) for it is not a prohibition' "baae/*" smoking and health" as that phrase is properly cj 08 Accordingly, we condude that the 1969 Act does not empt petitioner's conspiracy claim. VI . ' ' ---- To summarize our holding: The 1965 Act-did aot p .. empt state law damages actions; 4he 1969 A ap h -e a a tt petitioner's claims based on a failure to warn, neutralization offederally mandated warnings to the f ^ r y that those claims rely on omissions or inrlagir^g ;n m rTro dents'advertising or promotions; the 1969Act doessot ps*. empt petitioner's claims based on express -rwnrraaiy, intentional fraud and misrepresentation, or conspiracy. The judgment of the Court of Appeals is accordingly reversed in part and affirmed in. part, end the a remanded for further proceedings consistent, with fhi* opinion. it is so ordered Justice Blackmon, with whom Justice Kenneht and JUSTICE SOUTEKjoin, concurring in part, concurringin the judgment in part, and dissenting in part. 1 The .Court today--would crpfr--ar-comprosase-gositias---Concerning the extent to which federal law pre-empts persons injured by cigarette manufacturers' unlawful 17B a th J u s t ic e B la csm u n a n d J u stic e S calia shall eng th e sf g e n era lity em ployed in o u r an aly sis. JUSTICE B lackmun contend* th a t, as a m atter of consistency, we should construe failare-to-w arn daim* w e as based on sm oking and health, h a t ra th e r as based on th e broader sn "to inform con su m ers of know n risk s.0 Post, a t 13. JUSTICE S r w > contends th at, again as a m atter of consistency, we should esnstror frau d u le n t m isrep resen tatio n claim s cor a s based on a general doty oca to deceive b n t r a th e r a s `b a se d on sm oking e n d h e alth ." A dm itted^, each of these positions h as some conceptual attraction. However. =cr am bition here is not theoretical elegance, b u t ra th e r a fair nfidersU m inc of congressional purpose. To analy se failu re to w arn claim s a t th e h ig h e s t level of g e n e r a l - < JUSTICE BLackMUN would h a v e u s do) w ould re n d e r th e 1969 emwvi- m e n ts alm o st m eaningless a n d would pay too little re sp ec t to Coot11m substantial rew orking of the Act. On the o th er hand, to analyte c laim s a t the low est level o f g e n era lity (as JUSTICE S c ALIA would fcsw n s do) would conflict both w ith th e background presumption * * * * * preem ption an d w ith legislative history th a t plainly ex p rs* * -*u11,1 r to preserve th e "police reg u latio n s" of th e S ta te s . See sapra, a 25. " The District Court described the evidence of conspiracy 25 "E vidence p re se n te d by [petitioner], p articu larly t h a t contained sc - docum ents o f [respondents] th e m s d ves, in d ic a te s ------ t n a l th e trvdamc of which those [respondents] were and are a p art entered sophisticated conspiracy- The conspiracy w as organized to und erm in e, a n d n a u trsJize infarmAtrtn mmi-no- fi-nm 08/04/92 11:33 9 1 9 933 1253 CAROLIB JCHULER,JV&H _ 022 Th United Slates LAW-WEEK !^ ^ ^ id u c t from bringing- state common-law damages claims z n a i i n i a e t v g ^ c t i . J> k o i f e r B r } E n d i k e C o u r t s raided holding with respect to the original and amended sions ofthe federal statute entirely unsatisfactory. Our its do not allow as to infer a scope of pre-emption pnd that which dearly is mandated by Congress' Slanguage, In my view, neither version of the federal ^legislation a t issue here provides the Mud ofunambiguous ipgridence ofcongressional intent necessary to displace state -^common-law damages claims. I therefore join parts I, II, 3gjn, and IV of the Court's opinion, but dissent from parts V " /andVL emption-where Congress has not spoken direcdy-to- theissue apply with equal force where Congress has'-.spoken,' though ambiguously. In such cases, the question is not whetherCongress intended to pre-empt state regulation, but to what extent. We do not, absent unambiguous evidence, infer a scope of pre-emption beyond that which dearly is mandated by Congress' language.1 I therefore agree with the Court's unwillingness to coadude that the state common-law damages claims at issue in this case are pre empted unless such result is "'the dear and manifest purpose ofCongress.'" Ante, at 9 {quotingBice v. Santa Fe Elevator Corp., 331 U. S.,, at 230). AB ..-I agree with the Court's exposition, in p art.Ill of its I also agree with the Court's application ofthe foregoing opinion, of the underlying prindples of pre-emption law, principles in part IV ofits opinion, where it condudes that and in particular with its recognition that the pre-emptive none of petitioner's common-law damages claims are pre scopeofthe Federal Cigarette Labeling and Advertising Act empted by the 1965 Act. la my view, the words of 5(b) of (the 1963 Act) and the PublicHealth Cigarette Smoking Act th at Act ("No statement relating to smoking and health of 1969 (the 1969 Act) is "governed entirely by the express shall be required in the advertising of any cigarettes the language" ofthe statutes'pre-emption provisions. Ante, at packages of which are labeled in conformity with the 10. Where, as here, Congress has induded in legislation a provisions of this Act") can hear only one meaning: that - specific provision addressing--and indeed, entitled--pre- States are prohibited merely from "mandating particular ...... anptinnJ tiie~Courffe tasg~is~oTie^of statutory Ittterpreta- "cautionary 'statements " ."in dgarette advertisements . tion--only to "identifythe domain expresslypre-empted" by Ante, at 11. As the Court recognizes, this interpretation tiie provision. Ante, .at II. An interpreting court must comports with Congress' stated purpose of avoiding "`di begin with the language employed by Congress and the verse, nonunifoim, and confusing labeling and advertising .'^assumption that the ordinary meaning of that language regulations'" relating to smoking and health- Ante, at 12 -.accurately expresses the legislative purpose."' FMC Corp. (quoting 15 U. S. C. 1331(2)). The narrow scope offederal ./foHollidoy, 498 U. S .__ , __ (1990) (slip op. 4), quoting pre-emption is thus apparent from the statutory text, and WFly, Ino, v.DollarParkandFly, Ina, 469 U. S -189, it is correspondingly impossible to divine any "dear and .194 (1985). See California Coasted Comtn'n. v. Granite manifest purpose" on the part of Congress to pre-empt 'g. Sack Co., 480 U. S. 572,591-593 (1987);CaliforniaFederal \% Savings & LoanAssn, v. Guerra, 479 U. S. 272,282 (1987) ^(opinion ofMarshall, J.). We resort to principles ofimplied .-^preemption--that is, inquiring whether Congress has . -^-QCcnpi&da particular fieldwith the Intent to supplant state ' law or whether state law actually conflicts with federallaw, . see English v. General Electric Co., 496 H. S. 72, 79 . (1990)--only whan Congress has been silent with respect to common-law damages actions: n My agreementwith the Court ceases at this point Given the Court's proper analytical focus on the scope of the express pre-emption provisions at issue here and its acknowledgementthat the 1965Act does notpreem pt state common-law damages daims, I find the Court's condusion :: pre-emption. that the 1969 Act pre-empts at least some common-law - ;.-I farther agree with the Court that we cannot find the damages daims little short of baffling. In my view, the "state common-law damages daims at issue in this case pre- modified language of 5(b), 15 U. S. G. 1334(b) ("No ^ canpted by federal law in the absence ofdear and unambig- requirement or prohibition based on smoking and health '/nous evidencethat Congress intended that result See ante, shall be imposed under State law with respect to the ' a t 9. The Court describes this reluctance to infer pne- advertising or promotion of any dgarettes the packages of . eruption in ambiguous cases as a "presumption against the which are labeled in conformity with the provisions of this pre-emption of state police power regulations." Ante, at Act"),no more "dearly" or"manifestly" exhibits an intent to - 11--12. Although many ofthe cases in which the Court has pre-empt state common-law damages actions than did the ; invoked such a presumption against displacement of state language of its predecessor in the 1965 Act, Nonetheless, ' law have involved implied pre-emption, see, e.g., Florida the Court reaches a different condusion, and its reasoning lin e & Avocado Growers, Inc- v. Paul, 373 U. S. 132, warrants scrutiny. v 146-152 (1963);Rice v. Santa Fe Elevator Corp., 331U. S. . . 218, 236-237 (1947), this Court often speaks in general A forms without reference to the nature ofthe pre-emption at The Court premises its pre-emption ruling on what it / issue in the given statutory scheme. See, eg., Maryland v. terms the "substantial changes" wrought by Congress in ,. Louisiana, 451U. S. 725,746 (1981) ("Consideration under 5(b), ante, at 14,notably, the rewording ofthe prevision to -. tite Supremacy Clause starts with the basic assumption pre-empt any "requirement or prohibition" (as opposed :/ (hat Congress did not intend to displace state law"); merely to any "statement") "imposed under State law." As [' Avocado Growers, 373 U. S.f at 146--147 ("[W]e aie not to an initial matter, I do not disagree with the Court that the 'gteadude that Congress legislated the ouster of this [state] phrase "State law," in an appropriate case, can encompass ^ Statute. . . in the absence ofan unambiguous congressional the common law as well as positive enactments such as Mplandate to th at effect"); Bethlehem Steel Co. v. New York statutes end regulations. See ante, at 16. I do disagree,* '?tate Labor Relations B<L, 330 U. S. 767,780 (1947) ("Any j^l&dulgence in construction should be in favor ofthe States. ..jM^canse Congress can speak with drastic c la r ify whenever *Th C o u rt co n stru es Congressional in ro a d s on s t a te pow er narro w ly in ' chooses to assure full federal authority, completely placing the States") (opinion of Frankfurter, J.). e principles of federalism and respect for state o th er contexts, a s welL F o r example, th e C otut repeatedly h as held th a t, in ord er to Waive a S ta te 's sovereign im m u n ity from s u it in federal co u rt, Congress m ost make its intention `unm istakably d e a r in the language of th e s ta tu te .' Atascadero State Hazmiul v. S m h f c . TT c re- o -o 8?0 08/04/92 11:34 919 933 1253 CAROLIB SCHULER, W&H 60 LW 4712 The United States LAW WEEK however, with the Court's conclusion that "State law'' as used in 5(b) represents such an all-inclusive reference. Congress' intention in selecting that phrase cannot be understood without considering the narrow range of actions--any "requirement or prohibition"--that Congress specifically described in 5(b) as "imposed under"state law. See UnitedStates v. Morton, 467 U. S. 822,828 (1984)("We do not. . . construe statutory phrases in isolation; we read statutes as a whole. Thus, the words [in question] must be read in light ofthe immediately following phrase");Jarecki v. GdX Searle & Co., 367 U. S. 303,307 (1961) ("Themaxim noscitur a soctis, that a word is known by the company it keeps, while not an inescapablerule, is often wiselyapplied where a word is capable ofmanymeanings in order to avoid the giving of unintended breadth to theActs of Congress"); see also Norfolk & WesternR. Co. v. TrainDispatchers, 499 U. S. _ . __ (1991) (slip op. 5-6) (STEVENS, J,, dissenting) (dedining to read the phrase "ah otherlaw, including State and municipal law" broadly). Although the Court flatly states that the phrase "no requirement or prohibition" "sweeps broadly" and "easily encompass[es] obligations that take the form ofcommon law rules," ante, at 15, those words are in reality far from unambiguous and cannot be said dearly to evidence a congressional mandate to pre-empt state common-law damages actions. The dictionary definitions ofthese teems suggest, if anything, specific actions mandated or disal lowedby a formal governing authority. See, e.g., Webster's Third New International Dictionary 1929 (1981) (defining "require" as "to ask for authoritatively or imperatively; dahn by right and authority" and "to demand as necessary or essential (as on general principles or in order to comply with or satisfy some regulation)"); Black's Law Dictionary 1212 (6th ed. 1990) (defining prohibition" as an "[a]ct or law prohibiting something"; an "interdiction"). More important, the question whether common-law damages actions exerta regulatory effectonmanufacturers analogous to that of positive enactments--an assumption, crucial to the Court's Conclusion that the phrase "require ment or prohibition" encompasses common-law actions--is significantly more complicated than the Court's brief quotation from San Die,go Building Trades Council v. Garmon, 359 U. S. 236, 247 (1959), see ante, at 15, would suggest. The effect of tortflaw oh a- manufacturer's behavior is necessarily indirect. Although an award ofdamages by its very nature attaches additional consequences to the manufacturer's continued unlawful conduct, no particular course of action (e.g., the adoption of a new warning label) is required. A manufacturer found liable on, for example, a failure-to-wam daim may respond in a number of ways. It may deride to accept damages awards as a cost of doing business and not alter its behavior in any way. See Goodyear Atomic Carp. v. Miller, 486 U. S- 174, 185-186 (1988) (corporation "rosy choose to disregard [state] safety regulations and simply pay an additional" damages award if an employee is injured as a result of a safety violation). Or, by contrast, it may choose to avoid future awards by dispensing warnings through a variety of alternative mechanisms, such as package inserts, public service advertisements, orgeneral educationalprograms. The level of choice that a defendant retains in chaping its own behavior distinguishes the indirect regulatory effect ofthe commonlaw from positive enactments such as statutes and administrative regulations. See Dewey v. R J- Reynolds 90. 577 A 2 J 1239, 1249 (1990); jjfegggalj&cvand.ryil KaMiy3Modest gsSfey. 1423,1454 (I960). Moreover, parate fuactions^m pensating See Ferehee v. Chevron Chemical Co.. 237ht 164,175,736 F. 2d 1529,1540, cert denied,'469;^ ^ iU S i" : (3.984). Despite its earlier acknowledgement, co n sist^ foregoing conception of damages actions, general, inherent conflict between federal state warning requirements and the contiuuedr2 * state common law damages actions," ante,.at apparently finds Garmon's statement that he as effectively exerted through an award rfdamj* ^ * 6 through some form of preventive relief" 359 DTsLat?J f sufficient authority to warrant extinguishing the cem^l" law actions at issue in this case. See ante, at 14-45J not persuaded. Not only has the Court previously guished Garmon,s but it has declined on several -i*^" occasions to find the regulatory effects of state tajt taw direct or substantial enough to warrant pre-emptiwy. , _ In Goodyear Atomic Corp. v. Miller,-iar Court distinguished, for purposes of pre-emption,asaink: "direct state regulation" of safety ~matters --4ttth: incidental regulatory effects"ofdamagesawardedpursuant to a state workers' compensation law. 486 .&, at-US. Relying in part on its earlier decisionin Sdkuxody.Ear- McGee Corp,, 464 U- S. 238, 256 (1984),* the Court a * r t . . . * ' V ' ____ ___ ______ -- ---------------- ~ V t -- J -- -------- S - ... - regulatory pressureis acceptable, whereasdirectregulatory authority is not." 48$ U. S., a t 186- -Even moteteemafy, the Court declined in English v. General Electric Co, 49 U. S-, at 86, to find state common-law damages Arni f r emotional distress pre-empted by federal nuclear m irfy law. The Court concluded that, although awards to former employees for emotional distress would attach 'additional consequences" to retaliatory employer conduct and mold lead employers to alter the underlying conditions about which employees were complaining, iSiti.-such'' an effect would be "either direct nor substantial enough' to waru t pre-emption. Id., at 85. In light ofthe recognized distinction in this Court'sjuris prudence between direct state regulation"and the indirect regulatory effects ofcommon-Iawdnrnages actions,itcaimot be said that damages claims are dearly or unambiguously "requirements" or "prohibitions' imposed under state law. The plain language ofthe 1969 Act's modifiedpre-earptSoo provision simply cannot bear the broad_mteipre^ftSLtbfcCourt would impart to it. Not only does the text of the revised 5(b) fall dearly < 2 C ongress, in fact, h a s expressly allowed common-law damages astsetm to survive while pre-empting other, more direct forms ofstale regolsscc. Sec, c-g., C om prehensive Sm okeless Tohacco H ealth Education AA 4 1986, 7 ,1 0 0 S u it, 3 4 ,1 5 U . S . C. 4401 ci saj.-, Occupational Safety ed H e a lth Act of 19 7 0 ,8 4 StaL 1 500,29 U . S. C . 651 * ax}., u w a r n e d in Gadc v. N ational Solid Wastes Mgntt- A ssn ,,___U . S . ___ (!99Zi. 'T he C o u rt h a s explained t h a t Garmon, in w hich a s ta te ooam oeJiw dam ages aw ard w as found to be pre-em pted by the Natstea l L ab R elations Act, involved * special "presum ption of federal p n re la tin g to th e prim ary ju risdiction of th e N ations! L s i w Rei n * " * Board. See Brown v.J3otd2oiploy=s, 468 U .S . 491,502 C lS S tX & s* * v. GeneralElectric Co., 496 U . S . 72, 86-87, n . 8 (19901, 'T h e C o u rt in Silhwoad declined to find state p m itiv e d a m a g e s * * pre-em pted b y federal nuclear safety law s, explaining; T t m *J he th e aw ard of dam ages based on th e state law of negHgepo* w liab ility is regulatory in the sen se t h a t a n u c le a r p la n t win beth i >*** w ith dam ages liability if i t does not conform to sta te standards. hCtUJ r e g u l a t o r consequence was som ething t h a t C ongress w as -jh * wt*< to accept." 464.U. S , a t 258. Although th e C ourt has B rtedCa B decision in SUkwood w as b ased in "su b stan tial p a rt" on a l l 1--*r evidence in th e legislative h isto ry suggesting t h a t C on.** in ten d to include common-law dam ages rem edies within the field, see English. 496 U .S ., a t 66, SUZuxxxTs d isra sc o a -- regulatory effects of th e common law is instructive and h** 08/04/92 11:35 9 1 9 933 1253 CAROLIB SCHULER, W&H f^ 2 3 -9 2 The United States LAW WEEK _.jnsnifestly to require pre-emption of state common-law state conmion*law>jfemages:.-actioiis.- .-See,ante, a t 12:" ' acfiDna, bu.t there is no suggestion in the legisla- (concluding tJiai--Congress". express^"zmtenJr_t6^'avbi2i._" , history th at Congress intended to expand the scope of diverse, nanuniform,.and--amfhsing regulations "most the pre-emption provision when it amended the statute in naturally refersto positiveenactments by[state legislatures 1969. The Court acknowledges the evidence that Congress and federal agencies], not to common law damages itselfperceived the changes in 5(b) to he a mere "dsrifi[ea- actions"). tjonT ofthe dieting narrow pre-emption provision, ants, at Finally, there is absolutely no suggestion in the 14 (quoting S- Bap. No. 91-566, p. 12 (1969) (hereinafter S. legislative history that Congress intendedto leave plaintiffs Rep.)), but it dismisses these Statements of legislative who were injured as a result of cigarette manufacturers' intent as the "`views ofa subsequent Congress."' Id., at 14, unlawful conduct withoutany alternative remedies;yetthat quoting United States v. Price, 361 U. S. 304, 313 (I960). is the regrettable effect of the Court's ruling today that The Court is wrong not only as a factual matter--for the many state common-law damages hums are pre-empted. statements ofthe Congress that amended 5(b) are contem The Court in the past has hesitated to find pre-emption poraneous, not ''subsequent," to enactment of the revised where federal law provides no comparable remedy. See pre-emption provision--but as a legal matter, as welL This Rabin, A Sociolegal History ofthe Tobacco Tort Litigation, Court accords "great weight" to an amending Congress' 44 Stan. L. Rev. 853, 869 (1992) (noting the "rather strong interpretation, ofthe underlyingstatute. See, e.g.,RedLion tradition offederal deference to competingstate interests in Broadcasting Co. v. FCC, 395 U. S. 367, 380-381 & n. 8 compensating injury victims"). Indeed, in Silkwood, the (1969). Court took note of"Congress'failure to provide any federal Viewing the revisions to 5(b) as generally remedy" for injured persons, and stated that it was "diffi nonsubstantive in nature makes sense By replacing the cult to believe that Congress would, without comment, word "statement" with the slightly broader term, remove all means ofjudicial recourse for those injured by "requirement," and adding the word "prohibition."to ensure illegal conduct." 464 U. S., at 25L See also idL, at 263 "that a State could'not do through negative mandatele..( "TBlaOKMUN, J,, dissenting) ("[i]t~is inconceivable `th a t" banning all cigarette advertising) that which it already was Congress intended to leave victims with no remedy at all"). farhidden to do through positive mandate (e.g.t mandating Unlike other federal statutes where Congress has eased particular cautionary statements), Congress sought to "darifty]" the easting precautions against confusing and nenuniform state laws and regulations. S. Rep,, p. 12.5 Just as it acknowledges the evidence that Congress' cv ge$ in the pre-emption provision were nonsubstantive, t ourt admits th at "portions ofthe legislative history of the 1969 Act suggest th at Congress was primarily con cerned with positive enactments by States and localities " Ante, at 15- Indeed, the relevant Senate report explains that the revised, pre-emption provision is "intended to include not only action by State statute but by all other administrative actions or local ordinances orregulations by any political subdivisions of any State," a list remarkable for the absence of any reference to common-law damages actions. S. Bep., p. 12. Compare, e.g., 29 U- S. C. 1144(a) and (cXl) (ERISA statute defines "any and all State laws" as used in pre-emption provision to mean "all laws, decisions, rules, regulations, or other State action having the effect of. law") (emphasis added). The Court dismisses this statement with the simple observation that "the language of the Act plainly reaches beyond such [positive] enactments." Ante, a t 15. Yet, as discussed above, the words of 5(b) ("requirement or prohibition") do notso "plainly" extendto common-lawdamagesactions, and the Court errs in placing so much weight on this fragile textual hook. The Court further acknowledges that, at the same time the bite of pre-emption by establishing "comprehensive" civil enforcement schemes, see, e.g., IngersoR-Rand Co. v. McClendon, 498 U. 5. __, __ (1990) (slip op. 9-10) (dis cussing 502(a) of ERISA), the Cigarette Labeling and Advertising Act is barren of alternative remedies. The Act merely empowers the Federal Trade Commission to regulate unfair or deceptive advertising practices (15 U. S- C. 1336), establishes minimal mminal penalties (misdemeanor and fine not to exceed $10,000} forviolations of the Act's provisions (1338), and authorises federal courts, upon the Governments application, to enjoin violations of the Act (1339). Unlike the Court, I am unwilling to believe that Congress, without any mention of state common-law damages actions or of its intention dramatically to expand the scope of federal pre-emption, would have eliminated the only means ofjudicial recourse for those injured by cigarette manufacturers' unlawful conduct. Thus, not only does the plain language of the 1969 Act fail dearly to require pre-emption of petitioner's state common-law damages claims, but there is no suggestion in the legislative history that Congress intended to expand the scope of the pre-emption provision in. the drastic manner th at the Court attributes to it. Our obligation to infer pre emption only where Congress' intent is clear and manifest mandates the conclusion that state common-law damages actions are not pre-empted by the 1969 Act that Congress amended the pre-emption provision of5(b), It made no effort to alter the statement of purpose contained in 2 of the 1965 Act. Ante, at 14, n. 19. Although the Court relegates this fact to a footnote, the continued vitality of 2 is significant, particularly in light ofthe Court's reliance on the same statement ofpurpose for m Stepping back from the specifics of the Court's pre emption analysis to view the result the Court ultimately reaches, 1 am further disturbed. Notwithstanding the Court's ready acknowledgement that "t[t]he purpose of its ooilier conclusion that the 1965 Act does not pre-empt *1*1 th e QTit re p o rte d case c o n stru in g th e scope o f pre-em ption u n d e r th e 19SS Act, B anchafv, F C C - a ease of which Congress w as aw are, see S. R e p , p- ?--th e C o u rt of A ppeals for th e D istrict of C olum bia Circuit V*ed th e term "affirm ativ e re q u ire m e n t* ' to describe SSib)1* b a n on *statem ent[s].' 132 U. S . A pp. D.C. 1 4 ,2 2 ,4 0 5 P . 2d 1032,1090 (1968), te rt. denied su b na m . Tobacco Institute, Inc. v . FC C , 396 U . S . 642 (1969), I t is b u t a sm all ste p from 'affirm ative requirem ent* to the Converse, "negative r e q u ir e m e n t' ("p ro h ib itio n 'V a n d , from th e re , to th e ingle ex planatory p h ra s e , "re o m re e te n t o r nrohibitirm .' 'E very C ourt of Appeals to consider the question, including th e Third C ircu it in An e arlie r opinion i n th is case, sim ilarly h a s concluded t h a t s ta te com m on-law dam ages claim s a re Hat expressly p re-em p ted u n d e r th e 1963 A ct. S ee, e.g ., CipaOane v. Iiggett Group, Inc., 789 F- 2d 181, 185--186 (CA3 1986), cert, denied. 479 U . S, 1043 (1997); Pennington v. Vistron Carp., 876 F . 2d 4 1 4 ,4 1 8 (CAS 1989); Rpysdon v . R J . Reynolds Tobacco Co., 849 F . 2 d 230, 234 (CA6 1988); Palmer v . Liggett Group, Inc., 825 F . 2d 820, 625 (C A l 1987). See also Detoey v . R J . Reynolds Tobacco Co., 1 2 1 N J . 6 9 ,8 5 ,5 7 7 A M 1 239,1247(5990); Forster v . R .J. R c v T L n M * T W t x r r w . A * A ' i l "MTCT PiA e r r <" "<> r r- @024 SUPREM E COURT INDEX 08/04/92 l919 933 1253 H tfU * CAROLIB *.. SCHULER, "'&H The United States LAW WEEK UA.w 6-23-. Congress is the ultimate touchstone' of pre-emption Congress's decrees of pre-empt. either narrowly analysis," ante, a t 9 (quoting Malone v. White Motor Corp., broadly, but in accordance with their apparentmeaning 435 U. S. 497, 504 (1979)), tho Court proceeds to create a we did that job in the present case, we would crazy quilt of pre-emption, from among the common-law the 1965 Act, pre-emption ofthe petitioner's failure-to-w^r claims implicated in this case, and in so doing reaches a claims; and under the 1969 Act, we would find pre-aamio result that Congress surely could not have intended. of the petitioner's claims complete. The most obvious problem with the Court's analysis is its frequent shift in the level ofgenerality a t which it examines I the individual claims. For example, the Court states that The Courtis threshold description of the law 0f prfr fraudulent misrepresentation, claims (at least these involv emption Is accurate enough; Though we generally ing false statements ofmaterial fact in advertisements) are sume] that the historic police powers ofthe States .are] not "not predicated ona duty `based onsmoking and health'but to be superseded by . . . Federal Act unless that [is] the rather on a more general obligation--tie duly not to clear and manifest purpose of Congress/" ante, at o deceiveand therefore are not pre-empted by 5(b) of the (quotingRice v. Santa Pe Elevator Corp., 331 U. S. 21S, 230 1969 Act. Ante, at 22. Yet failure to warn claims--which (1947), we have traditionally uot thought that to require could just as easily be described as based on. a "more express statutory text. Where state law is in actual caoxiici general obligation" to inform consumers of known with federal law, see, e.g., Pacifie Gas Else. Co. v.Eneroy risks--implicitly are found to be "based on smoking and ResourcesConservationandDevelopment Comm'n,agj.u. "g health" and are declared pre-empted. See ante, at 18. The 190,204 (1983), or where it "stands as an obstacle to the Court goes on to hold that express warranty claims are not accomplishment and execution of the full purposes and pre-empted because the duty at issue is undertaken by the objectives of Congress," Hines v. Dauidowitz, 312 U. S. 52 manufacturer and is not Imposed under State law." Ante, 67 (1941), or even where the nature of Congress's regale-' a t 19. Yet, as the Court itself must acknowledge, "the tien, or its scope, convinces us th at "Congress left no room general duty not to breach warranties arises under state for the States to supplement it," Rice, supra, at 230, we law," ibid, (emphasis added); absent the State's decision to have had no difficulty declaring that state law-must yield. penalize such behavior through the creation of a common- The ultimate question in each case, as we have framed the law damages action, no warranty claim would exist. inquiry, is one of Congress's intent, as revealed by the text, In short, I can perceive no principled basis for many of structure, purposes, and subject m atter of the statutes the Courtis asserted distinctions among the common-law involved. See, e.g., English v. General Elec. Co., 496 U. S. claims, and I cannot believe that Congress intended to 72, 78-79 (1990); Shout v. Delta Air Lines, Inc., 463 U. S create such a hodge-podge ofallowedand disallowed claims 85, 95 (1983). when it amended the pre-emption provision in 1970, The Court goes beyond these traditional principles, Although the Court acknowledges that 5(b) falls to however, to announce two new ones. First, it says "that "indicate that any familiar subdivision of common law express pre-emptionprovisions musthe giventhe narrowest claims is or is not pre-empted," ante, at 17, it ignores the possible construction. This is in its view the consequence simplest and most obvious explanation for the statutory of our oft-repeated assumption that, absent convincing silence: that Congress never intended to displace state evidence of statutory intent to pre-empt, "`the historic common-law damages darns, much less to cull through police powers ofthe States [are] not to be superseded,'"see them in the manner the Court does today. I can only ante, at 11-12. But it seems to me that assumption speculate as to the difficulty lower courts will encounter in dissolves once there is conclusive evidence of intart to pre attempting to implement the Court's decision. empt in the express words ofthe statute itself, andthe only IV By finding federal pre-emption of certain state commonlaw damages claims, -the Court today eliminates a critical component of the States' traditional ability, to protect the health,,,and-safbty-of th eir ritizehs. Tet such a radical readjustment offederal-state relations is warranted under this Court's precedents only if there is clear evidence that Congress intended that result Because I believe that neither version of the Federal Cigarette Labeling and Advertising Act evidences such a dear congressional intent to pre-empt state common-law damages actions, I respect fully dissent from parts V and VI of the Courtis opinion. remaining question is what the scope of that pre-emption is meant to be. Thereupon, I think, our responsibility is to apply to the text ordinary nrincrples-of-statutorr------construction. --------- That is precisely what our express pre-emption cases have done. Less than a month ago, in Morales v. Trans WorldAirlines, Inc., 504 U. S .,, (1992), we held that the Airline Deregulation Act's provision pre-emptingstate laws "relating to (airline] rates, routes, or services," 49 U. 5. C. App. 1305(aXl), was broad enough to reach state fare advertising regulations despite the availability ofplausible limiting constructions. We made no mention ofany "plain statement" rule, or rule ofnarrow construction, but applied the usual " `assumption that the ordinary meaning ofithr Justice Sc a u a , with whom Justice Th o m a s joins, statutory] language accurately expresses the legisiatirr concurring in the judgment in part and dissenting in p a rt purpose/ f Morales, supra, at (slip op., at 6) (qnotinr Today's derision announces what, on its face, is an PMC Corp. v. Holliday, 498 .S . __ ____(1990) (slip op.. extraordinary and unprecedented principle of federal at 4)) (emphasis added). And last Term, in Horfotk statutory construction: that express pre-emption provisions Western R. Co. v. American Train Dispatchers AsPn, 499 must be construed narrowly, "in light of the presumption U . S . _ _ (1991), we interpreted an express preemption against the pre-emption of state police power regulations." provision broadly despite the fact that a well-respected Ante, at 12. The life-span of this new rule may have been canon of statutory construction supported a narrower blessedly brief, inasmuch as the opinion that gives it birth reading- See id., a t _ ( s lip op., at 11 ); at, (siip op- Q in P art I proceeds to ignore it in Part V, by adjudging at at 3--4) (STEVENS, J., dissenting). We said not a wordabaci- O least some ofthe common-lawtort daims at issue here pre a "presumption against. . . preemption," ante, at II. su.v,.w=- empted. In my view, there is no merit to this newly crafted was to be applied to construction of the text. t-bT-- V. ..do<ttrine--Tifm.:aifw^irtstxuctian. Under the Supremacy In light of our willingness to find pre-emption -- Jy p53ttoefe,-Art. VI, cL 2, our job is.to interpret absence ofany explicit statement.ofure-amntr11-*TM-* 08/04/92 11:37 919 933 1253 CAROLIB SCHULER, "&H r^ 3 -9 2 The United States LAW 'WEEK "-- _ ^ f i c r o that such explicit statements, where they exist, are of construction, the Court finds (not surprisingly) th at .none. "TJhiect to a "plain-statem ent1' rule is mors than-Somewhat o fp a fitia iu ^ e .^ ls x m E -- a^ m m o n-Iaw feth x rc tv-w ttE n, farMwAa.: JdL To be sure, our jurisprudence abounds with rules of of express warranty, and intentional fraud and misrepre k "plain statement," "clear statement," and "narrow construc- sentation--is pre-empted under 5(b) of the 19S5 Act. And tjon" designed variously to ensure that, absent unambigu- save for the failure-to-wara claims, the Court reaches the " ons evidence of Congress's intent, extraordinary constitu- same result under o(b) of the 1969 Act. I think most of pnTinl powers are not invoked, or im portant constitutional th a t is error.- Applying ordinary principles of statutory protections eliminated, or seemingly inequitable doctrines construction, I believe petitioner's failure-to-wam claims applied. See, eg-, United States v. Mitchell, 445 U. S. 535r ^ a r e pre-empted by the 1965 Act, and all his common-law 533 (1980) (waivers of federal sovereign immunity must be claims', by the 1969 Act. "unequivocally expressed"); Will v. Michigan Dept ofState Police, 491U. S. 58,65 (1939) (dear statem ent required to compel States to entertain damages suits against them With much of what the plurality says in P art V of its selves in state courts); Atascadero State Hospital v. Scan opinion I agree--th a t "the language of the [19693 Act lon, 473 U. S. 234,243 (1985) (abrogation of state sovereign plainly reaches beyond [positive] enactments," ante, at 15; immunity m ust be expressed "in unmistakable language"). th a t the general tort-law duties petitioner invokes against But none of those rules exists alongside a doctrine whereby the same result so prophylactically protected from careless explicit provision can be achieved bysheer implication, with no express statem ent of intent a t all. That is the novel regime the Court constructs today. The results seem odder still when one takes into account the second new rule th at the Court announces: "When Congress'has considered tEe issue of preem ption and Els' the cigarette companies can, as a general matter, impose "raquirementis] or prohibitionLsr within th e meaning of 5(b) ofthe 1969 Act, ibid; and th a t the phrase "State law" as used in th at provision embraces state common law, ante, a t 16. I take issue, with the plurality, however, on its application of these general principles to the present case. Its finding- th a t they produce only partial pre-emption of petitioner's conuumrla w claims rests upon three mispercep included in the enacted legislation a provision explicitly tions th at I shall discuss in turn, under headings indicating addressing th a t issu e,. . . we need only identify the domain the erroneously permitted claims to which they apply. expressly pre-empted by [that provision]." Ante, a t 11. Once there is an express pre-emption provision, in other nurds, all doctrines of implied pre-emption are diminated. Pre-1969 Failure-ta-Warn. Claims TVds proposition m ay be correct insofar as implied "field" According to the Court,1 5(b) of the 1965 Act "is best ris-emption is concerned: The existence of an express pre- read as having superseded only positive enactments by aption provision tends to. contradict any inference th at legislatures or administrative agencies th at mandate Congress intended to occupy a field broader than the particular warning labels," ante, at 12 (emphasis added). statute's express language defines. However, with regard In essence, the Court reads 5(b)'s critical language "No to implied "conflict" pre-emption--L e.rwhere state regula statement relating to smoking and health shall be required" tion actually conflicts with federal law, or where state to m ean "No particular statement relating to smoking and regulation "stands as an obstacle to the accomplishment health shall be required." The Court reasons that because and execution'' of Congress's purposes, Hines, supra, at common-law duties do not require cigarette manufacturers 67--th e Court's second new rule works mischief. If taken to include anyparticularstatem ent in their advertis Lng, but seriously, i t would m ean, for example, th at if a federal con only some statem ent warning of health risks, those duties sumer protection law provided th at no state agency or court survive the 1965 Act. I see no basis for this element of shall assertjurisdiction under state law over any workplace "particularity." To require a warning about cigarette health Safety issue with respect to which a federal standard is in risks is to require a "statem ent relating to smoking and effect, then a state agency operating under a law dealing health." If the "presumption a g a in s t.. .pre-emption,"onto, -"With, a subject other th an workplace safety (e.g., consumer a t 12, requires ns to import limiting language into the 1965 protection) could impose requirements entirely contrary to Act, I do not see why it does not require us to import federal law--forbidding, for example, the use of certain similarly limiting language into the 1969 Act--so th a t a safety equipment th at federal law requires. To my knowl "requirement . . . based on smoking and health . . . with edge, we have never expressed such a rule before, and our respect to advertising" means only a specific requirement, prior cases are inconsistent with it, see, e.g., Janes v. Rath and not ju st general, nanrigarette-speciSc duties imposed Packing Co., 430 U. S. 519, 540-543 (1977). When this by tort law. The divergent treatm ent of the 1965 Act second novelty is combined with the first, the result is cannot be justified by the Act's statem ent of purposes, extraordinary: The statute th at says anything about pre which, as the Court notes, expresses concern with "diverse, emption m ust say everything; and it m ust do so with great nonuniform, and confusing cigarette labeling and advertis exactitude, as any ambiguity concerning its scope will be ing regulations," 15 U. S. C. 1331(2) (emphasis added). read in favor of preserving state power. If this is to be the T hat statem ent of purposes was left untouched by Congress law, surely only th e most sporting ofcongresses will dare to in 1969, and thus should be as restrictive ofthe scope of the ay anything about pre-emption. la te r 5(b) as the Court believes it is of the scope of the The proper rule of construction for express pre-emption earlier one* . -provisions is, it seems to me, the one th at is customary for \tutary provisions in general: Their language should be ! The plurality is joined by Justices Blackmon, Kennedy, and -ea its ordinary meaning. FMC Corp, v, Holliday, supra, St')LfTHm its analysis ofthe 1965 Art. __ (slip op., a t 4); Sham v. Delta Air Lines, 463 U. S-, at *T h e C o u rt a p p a re n tly th in k s t h a t becau se 4 of th e A ct, impoai ng th e 37. When this suggests th at the pre-emption provision was federal package-labeling requirem ent, 'its e lf set forth a particular -intended to sweep broadly, our construction m ust sweep sta te m e n t, ante, a t IS, n. 16, 5(b), th e ad v ertisin g pre-em ption ifigpadly as well. See, e.g., id., a t 96-97. And when it ffijjgNspeaks a narrow scope of pre-emption, so m ust onr " ^ g ig m e n t. See, eg ., Fort Halifax Packing Co., Inc. v. e, 432 U. S. 1, 7 -8 (1987). Applying its niggardly rule provision m ust be rend to proscribe only those state law s th a t compel th e u s e o f particular s ta te m e n ts in ad vertising. B esides b ein g a com plete non SKqruztw. th is re a so n in g proves too m uch; T he s im ila r prescription of a particular w a rn in g in th e 1S69 A ct would likew ise req u ire n s to confine th e pre-em ptive scope of th a t later statu te to socdfic. crescri-c- 08/04/92 11:38 6 0 LW 4716 0 9 1 9 933 1253 CAROLIB SCHULER, W&H The United States LAW WEEK @027 To the extent petitioner's claims are premised specifically today, that "[a] contract has no legal ferceraj^a..'U . onrespondents'failare (duringthe period in -whichthe 19S5 law that acknowledges its binding character* Act was in force) to include in their advertising any state __ (slip op., at 12). Compare id,, a t ___(ip a ^ ment relating to smoking and health, 1 would find those (STEVENS, ,,L, dissenting), I would find petitione/s'"3 claims, no less than the similar post-1969 claims, pre breach' of express warranty pre-empted by o(fe) empted. In addition, for reasons I shall later explain, see Act. infra, Part III, I would find pre-emption even of those- claims based onrespondehtsTailure to make health-related Post-1969 Fraud and Misrepresentation Clean* statements to consumers outside tbeitidvirtising- Howeverrsiiree~3fi(bl oTthelS65 Act enjoins only those laws that require "statement[sF in cigarette advertising, those of petitioner's claims that, if accepted, would penalize state ments voluntarilymade bythe cigarette companies must be deemed to survive. As these would appear to include' petitioner's breach-of-express-warranty and intentional According to the plurality, at least one of pe intentional fraud and misrepresentation daas it 5(b) of the 1969 Act because the coinmmL)^^ * underlying that claim is-not "based on smokingss within the meaning of the Act. See ante, & t understand the plurality's reasoning, it proceeds fiom tii implicit assumption that only duties deriving fraud and misrepresentation claims, I concur in the Court's that are specifically directed to "smoking and judgment in this respect. that are uniquely crafted to address the ielatioa B Post-1969 Breach-ofrExpress-Warraniy Claims between cigarette companies and their tmtativa within 15(b) of the Act, as amended- Giver t h a t 'l l , Jersey's tort-law "duty uot to deceive," ibid., is a In the context ofthis case, petitioner's bre&ch-of-express- one, applicable to all commercial actors and a llta trf warranty claim necessarily embodies an assertion that commerce, it follows from this assumption that 5Cbj( i e respondents' advertising and promotional materials made not pre-empt claims based on breaches of that duty. ' statements to the effect that cigarette smoking is not This analysis is suspect, to begin with. TSw ^ "^r unhealthy. Making such statements civilly actionable plurality is unwilling to apply it consistently! ^usn -r certainly constitutes an advertising "requirement or BLAC2M UN cogently explains, see ante,, t J3 (option prohibition . . . based an smoking and health." The plu concurring in part and dissenting in part), if.NewJersey's rality appears to accept this, but finds that liability for common-law duty to avoid false statements' of material breach of express warranty is not "imposed under State fact--as applied to the cigarette companies'behavior--isnofc law" within the meaning of oib) of the 1969 Act. "based on smoking and health," the same must be sai "[RJather," it says, the duty "is best understood as under New Jersey's common-law duty to warn atonta prodnrfk taken by the manufacturer itself" Ante, at 19. I cannot dangers. Each duty transcends the relationship between agree. the cigarette companies and cigarette smokers;neitherduty When liability attaches to a particular promise or was specifically crafted with an eye toward "smoking,and representation, it attaches by law. For the making of a health." None of the arguments the plurality advances to I voluntary promise or representation, no less than for the support its distinction between the two is persuasiva. That commission of an intentional tort, it is the background law Congress specifically preserved, in both the 1965.and136S against which the act occurs, and not the act itself, that Acts, the Federal Trade Commission's, authority t police supplies the element oflegal obligation.. See Some Build deceptive advertising practices, see 5(c) of the 1565 Art; ing & Loan- Assn. v. Blaisdell, 290 UJ. S. 398, 429 (1934); 7(b) ofthe 1969 Act; ante, at 32-23, does not suggest that N J. Stat. Ann. 12A:2-313<1), 12.4:2-714, and 12A2-715 Congress intended comparable state authority to survive (West 1962) (providingfor enforcement of express warran 5(b). In fact, at least in the 1965 Act (which gensaSy ties). Of course, New Jersey's law of express warranty excluded federal as well as state regulation), the exwwptim attaches legal consequences to thexigarette manufacturer-^-- suggested'that"5(b) 'was broad enough to roarb Jg** voluntary conduct in making the warranty, and in that govern.ing. fra.ud and. mi.spresent.a..t.i..o..n........n..d...i.t...is not true narrow sense, I suppose, the warranty obligation can be that the States'laws governingfraud and misrepreseniati said to be "undertaken by the manufacturer." But on that in advertising impose identical legal standards, whereas logic it could also be said that the duty to warn about the their laws "concerning the warning necessary to rends" a dangers ofcigarettes is undertaken voluntarily by manufac product *reasoiiably safe'" are quite diverse, ante, at 23. turers when they choose to sell in New Jersey; or, more The question whether an ad featuring a glamorous, youth generally, that any legal duty imposed on volitional behav ful smoker with pearly-white teeth is "misrepresentatire' ior is not one imposed by law. would almost certainly be answered differently from State The plurality cites no authority for its curious view, to State. Sea ante, at 21 (discussing FTC's initial cigarette which is reason enough to doubt it. In addition, however, advertising rules). we rejected this very argument last Term in Norfolk & Once one is forced to select a consistent methodology for WesternR. v. American Train DispatchersAssnMwhere we construed a federal exemption "from the antitrust laws and from all other law," 49 IT.S. C. 11341(a), to include an exemption from contract obligations. We observed, in a passage flatly inconsistent with the plurality's analysis evaluating whether a given legal duty is "based onsmoking and health," it becomes obvious that the methodologymost focus not upon the ultimate source of the duty (&-. the common. law) but upon its proximate application. Use cf the "ultimate source" approach (i. e., a legal duty is not "based on smoking and health* unless the law from wbi it derives is directed ouly to smoking and health) wouldgSt tiv e "requirementTs] or^prohibitiorfs)* (which, I presum e, would not the statute, inviting the very "diverse, nonuaiform, sxd include tort-law obligations to w aru consum ers about product dangers). confusing cigarette . . . advertising regulations" Congr^a 8 2A nd u n d e r both th e 19$5 s a d 1369 versions o f th e Act, th e pacJwge- sought to avoid. 15 U. S. C. 1331(2). And the pw ? * ^r^/sh ii^Jl eT em p titep iy v isM n o f 5(a), no less th a n th e ad v ertisin g pre- not simply the common law: Requirements stateo free to impose general health, imposedby state executive agencies as well, so long as results are obviouslycontraiyto the Act's were operating under a general statute autlmflzipp e . ..0 4 " 788 SS9 NEW YORK SUPPLEMENT, 2d SERIES pie have not waived their statutory rights. Thus, the People's motion to introduce the w itness' prior trial testimony into evidence ;at the second trial is granted. I:. : . . yE KEYNUMBER SVSTIM er, company which applied insecticide, and owner o f dock to which insecticide was applied. <!'/ Manufacturers motion granted; ' re maining defendants' motions denied. 1. Courts =37(1) 148 Misc.2d 11 M ichael T. LITTLE and D iane L. Little, Plaintiffs, DOW CHEMICAL COMPANY, INC., J.G. Pieri Company, Niagara Frontier Ser vices, Inc., Tops, Inc., a subsidiary o f Niagara Frontier Services, Inc., Defen dants. Supreme Court, Erie County. July 23, 1990. Chemical company's failure to plead that Federal Insecticide, Fungicide and Ro denticide Act (FIFRA) preempted state la beling and warning requirements and state court tort actions for failure to warn as affirm ative defense in answer to tort claim did not waive claim, and thus, claim was properly before trial court on chemical company's motions for summary judgment. McKinney's CPLR 3018(b); Federal Insecti cide, Fungicide, and Rodenticide Act, 2 et seq., as amended, 7 U.S.C.A. 136 et seq. 2. Courts =37(1, 2) States <3=18.3 Plaintiff, who was exposed to insecti cide, Dursban 2E, manufactured by Dow Chemical Company, while working on prop erty owned by his employer, sued manufac turer, employer, company which applied in secticide, and owner of loading dock to which insecticide was applied. Defendants moved to dismiss and for summary judg ment. The Supreme Court, Erie County, McGowan, J., held that: (1) preemption is sue need not be pled, could not be waived, and could be raised at any point in course o f litigation, and thus, defendant's preemp tion claim made for first time on motion for summary judgment was properly before court; (2) Federal Insecticide, Fungicide and Rodenticide A ct (FIFRA) did not ex pressly preempt tort action based on fail ure to warn; (3) FIFRA's regulatory scheme did not preempt state tort law by implication; (4) causes o f action against manufacturer for improper labeling and failure to warn conflicted with FIFRA and thus, claims were preempted; and (5) genu ine issue of material fact existed as to whether exposure to insecticide could have caused plaintiff's injuries precluding sum mary judgment on claims against employ To raise preemption issue is to chal lenge court's competence to entertain cer tain kind o f case and is essentially question o f subject m atter jurisdiction; as such, pre emption need not be pled, cannot be waived, and may be raised at any point in course o f litigation. 3. States =18.3 Federal preemption of state law, which is rooted in supremacy clause, occurs when Congress expressly displaces state law, when federal regulatory scheme is so per vasive that intent to preclude state action can be inferred and when state law is in conflict with federal law. U.S.C.A. Const Art. 6, cl. 2. 4. A griculture <3=9.13 States <3=18.65 Federal Insecticide, Fungicide, and Ro denticide A ct (FIFRA) did not expressly preempt common-law negligence action alleging that manufacturer failed to warn users and individuals who m ight come into contact with insecticide, Dursban 2E. Fed eral Insecticide, Fungicide and Rodenticide Act, 2 et seq., as amended, 7 U.S.C.A. | 136 et seq. O 00 ^ to LITTLE V. DOW CHEMICAL CO., INC. Cite u 559 N.Y-S-M 78S (Sup. 1990) 789 6. States =18.3 . 10..Judgment =181(33) Preemption analysis is essentially mat ter of statutory construction, and first step is to read statute in light o f its legislative history. U.S.C.A. Const. A r t 6, cl. 2. 6. Agriculture =9.12(1) States =18.65 - Genuine issue of material fact existed as to whether exposure to insecticide, Dursban 2E, caused injuries to individual, who w as exposed to insecticide while work ing on property owned by his employer, precluding summary judgm ent in personal injury claim against employer, owner of State regulation of pesticide labeling is loading dock to which insecticide was ap expressly preempted by Federal Insecti plied adjacent to employer's property, and cide, Fungicide, and Rodenticide Act. Fed company which applied insecticide., . eral Insecticide, Fungicide, and Rodenticide Act, 2 et seq., as amended, 7 U.S.C.A. 136 et seq. Magner, Love & Morris, P.C.,' Buffalo, for plaintiffs; Lawrence J. Regan, of coun i. Agriculture =9.13 sel. States =18.65 Phillips, Lytle, Hitchcock, Blaine & Hu Federal Insecticide, Fungicide, and Ro ber, Buffalo, for defendant Dow Chemical denticide Act's (FIFRA) regulatory scheme Co., Inc.; Paul M. Taylor, o f counsel. did not preempt common-law tort action for failure to warn users of dangers of expo sure to insecticide, Dursban 2E, by implica tion since Congress intended to leave to states authority to impose stricter regula Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo, for defendants Pieri, Niagara Frontier & Tops; R. William Lar son, of counsel. tion on pesticide use than required under FIFRA. U.S.C.A. Const. Art. 6, cl. 2; Fed eral Insecticide, Fungicide, and Rodenticide Act, 2 et seq., as amended, 7 U.S.C.A. 186 et seq. THOMAS F. McGOWAN, Justice. ' MICHAEL T. LITTLE w as exposed to Dursban 2E, an insecticide manufactured by D efendant DOW CHEMICAL COMPA NY, INC. (Dow), on July 24th, 1981, while 8. Agriculture =9.13 States =18.65 Common-law negligence actions against manufacturer of insecticide, Durs ban 2E, for improper labeling and failure to warn conflicted with Federal Insecticide, Fungicide, and Rodenticide A ct (FIFRA) and, thus, were preempted. U.S.C.A. Const. Art. 6, cl. 2; Federal Insecticide, Fungicide, and Rodenticide Act, 2 e t seq., as amended, 7 U.S.C.A. 136 et seq. working on property owned by his employ er, BATTENFELD AMERICAN, INC., on Clinton Street in Buffalo, N ew York. The insecticide, which had been mixed by an employee o f Defendant TOPS, INC., was applied by another Tops employee to the loading dock of a food warehouse, owned by Defendant J.G. PIERI COMPANY (Pi eri), adjacent to Battenfeld's property. Plaintiff subsequently commenced the in stant action, alleging, inter alia, that the Defendants were negligent in labeling the 9. Agriculture =9.13 Environmental Protection A gency's registration of insecticide, Dursban 2E, based on finding that insecticide was not unreasonably risky to human beings, obvi insecticide and in failing to provide ade quate warnings to its users and individuals who m ight come into contact with it. D e fendants now move to dismiss and for sum mary judgment. ated claims of negligence, strict liability in Dow and its Co-defendants advance two tort for defective design and breach of separate grounds for the relief requested. warranty against manufacturer. Federal The first, that the Federal Insecticide, Fun Insecticide, Fungicide, and Rodenticide Act, gicide and Rodenticide A ct (FIFRA) (7 3(c)(5)(C), as amended, 7 U.S.C.A. U.S.C. Section 136, e t seq.) preem pts State 136a(c)(5)(C). labeling and warning requirements and, 790 559 NEW YORK SUPPLEMENT, 2d SERIES therefore, state court tort actions such as American Constitutional Law, Section 6-25, this. Second, that the scientific evidence at 480 [2d ed.]). The first step, then, is to adduced establishes that the injuries suf read the statute in light of its legislative fered by Little could not have resulted history (Ferres v. City of New Rochelle, 68 from his exposure to Dursban 2E. N.Y.2d 446, 451, 510 N.Y.S.2d 57, 502 [1,2] Preemption was raised for the N.E.2d 972). first time on this motion. It was not plead ed as an affirmative defense, nor have De fendants formally moved to amend their answers to add it. Plaintiffs contend that the failure to plead preemption operates to waive it, in accord with the customary con struction of CPLR 3018(b). Their argu ment, however reflexively cogent it may appear, is misplaced. To raise the preemp tion issue is to challenge the Court's com petence to entertain a certain kind of case. [6] FIFRA provides that a State "shall not impose or continue in effect any re quirements for labeling ... in addition to or different from those required under this Act" (7 U.S.C. Section 136v[b]). State reg ulation of pesticide labeling is expressly preempted. No mention is made, however, of State common law negligence actions. FIFRA does not expressly preempt tort actions based on the failure to warn.- It is then essentially a question of subject matter jurisdiction (Nuemberger v. State o f New York, 41 N.Y.2d 111, 115-117, 390 N.Y.S.2d 904, 359 N.E.2d 412; Lacks v. Lacks, 41 N.Y.2d 71, 75, 390 N.Y.S.2d 875, 359 N.E.2d 384). As such, preemption need not be pleaded, cannot be waived, and may be raised at any point in the course of litigation (Robinson v. Oceanic Steam Navigation Co., 112 N.Y. 315, 324, 19 N.E. 625). Defendants' claim that FIPRA preempts State common law negligence ac tions is, therefore, properly before the [7] Nor can it be said that Congress sought to preclude State action regarding pesticides. The Senate Report states that "generally, the intent of this provision is to leave to the States the authority to impose stricter regulation on pesticides use than that required under the Act" (Sen.Rep. No. 838, 92nd Congress, 2nd Sess. 30 [1972], reprinted in 1972 U.S.Code, Cong. & Admin.News 3993, 4021). FIFRA's regula tory scheme does not preempt State tort law by implication. Court. [8] The question before the Court boils [3] Federal preemption of State law is down to whether FIFRA preempts State rooted in the Supremacy Clause (U.S. tort law because of a conflict between the Const. Art. VI, Clause 2; Gibbons v. Og two. In other words, do common law negli den, 22 U.S. [9 Wheat.] 1, 210-211, 6 L.Ed. gence actions make compliance with FI 23). Preemption occurs when Congress ex FRA impossible or serve as an obstacle to pressly displaces State law, and when the the accomplishment of the Congressional Federal regulatory scheme is so pervasive objectives underlying the statutory scheme. that the intent to preclude State action can be inferred. State law is also preempted when it conflicts with Federal law (Pacific Gas & Electric Co. v. State Energy Re sources Conservation & Development Commission, 461 U.S. 190, 203-204, 103 S.Ct 1713, 1721-1722, 75 L.Ed.2d 752). [4] Here, Defendants claim that FIFRA preempts State common law negligence ac tions based on an alleged failure to warn. There are cases on both sides of the ques tion. In Ferebee v. Chevron Chemical Co., 736 F.2d 1529, the United States Court of Appeals for the District of Columbia Cir cuit held that FIFRA did not preempt fail ure to warn actions. The Court reasoned that: "[s]tate damages actions of the sort at issue here do not stand as an obstacle to the accomplishment of FIFRA's pur poses. Such a conflict would exist only if FIFRA were viewed not as a regula tory statute aimed at protecting citizens GJ0 Preemption analysis is essentially a from the hazards of modern pesticides, 00 of statutory construction (Tribe, but rather as an affirmative subsidiza LITTLE V. DOW CHEMICAL CO.. INC. 791 Clic u 339 NLY.SJd 788 (Sup. 1990) tion of the pesticide industry that com r , that state's citizens. Congress has not manded states to accept the use of r expressed a `clear and manifest purpose' ,EPA--registered pesticides. That inter to achieve such a result; on the contrary, pretation of FIFRA, however, is preclud . protection of pesticide users and victims ed by both the explicit savings clause at 7 U.S.C. Section 136v(b) and by the entire legislative history of the Act Of equal importance, federal legislation has tradi tionally occupied a limited role as the floor of safe conduct; before transform ing such legislation into a ceiling on the by both federal and state law lies at the . center of the Act's design." This Court finds Judge Mikva's opinion compelling. Those cases cited by Defen dants which hold that FIFRA preempts State law (Kennan v. Dow Chemical Co., ability of states to protect their citizens, I l l F.Supp. 799; Fisher v. Chevron Chem and thereby radically adjusting the his ical Co., 716 F.Supp. 1283; Fitzgerald v. toric federal-state balance, United States Mallinckrodt, Inc., 681 F.Supp. 404) v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, reached that result by relying on the First 523, 30 L.Ed.2d 488 (1971), courts should Circuit's decision in Palmer v. Liggett wait for a clear statement of congres Group, Inc., 825 F.2d 620. That reliance is sional intent to work such an alteration. misplaced inasmuch as the First Circuit The Supreme Court has often counselled explicitly distinguished the Cigarette Label such hesitance. Thus, in Nader v. Alle ing and Advertising Act where "Congress gheny Airlines, 426 U.S. 290, 96 S.Ct. mandated the precise wording required in a 1978, 48 L.Ed.2d 643 (1975), the Court label" from the minimum requirement stan held that, even were the Civil Aeronau dards set by FIFRA (id., at 623, n. 5; see tics Board to find that an action was not a `deceptive' one within the meaning of =the Federal Aviation Act of 1958, a state - jury remained entitled to find that action fraudulent. That the action was permis sible under federal law did not mean, in the absence of a clear congressional in tent to promote the action, that states Cox v. Velsicol Chemical Corp., 704 F.Supp. 85, 86-87; Roberts v. Dow Chemi cal Co., 702 F.Supp. 195, 198-199). However, the Supreme Court's recent de cision in International Paper Co. v. Ouel lette, 479 U.S. 481, 107 S.Ct. 805, 93 L.Ed.2d 883 undercuts Ferebee's prece were required to tolerate it. See also dential value. There, the question was Silkwood v. Kerr-McGee Corp., 464 U.S. whether Vermont common law nuisance ac 238, 104 S.Ct., 615, 78 L.Ed.2d 443 (1984). tions were preempted by the Clean Water So too in this case the fact that Congress Act. The Supreme Court held the Act has chosen to allow the states to regulate preempted such suits, noting that; the use of pesticides approved by the EPA means that states retain the lesser power to control the use of such pesti cides by requiring that at least some of the resulting injuries be compensated. In response, Chevron perhaps will choose not to send paraquat into Maryland; per' haps the company will distribute addi tional information on paraquat to Mary land users; or Chevron may petition the "These liabilities would attach even . though the source had complied fully with its state and federal permit obli gations. The inevitable result of such suits would be that Vermont and other states could do indirectly what they could not do directly--regulate the conduct of out-of-state sources" (id., at 495, 497, 107 S.Ct at 813, 814). EPA to be allowed to use a more detailed The impact of the State common law tort label. What Chevron cannot do, how action held to be preempted in Internation ever, is to force states, under the pur al Paper is too closely analogous to that ported aegis of a statute aimed at pro- here to ignore. Plaintiffs' causes of action tecting against the hazards of modem for improper labeling and failure to warn pesticides, to accept the use of paraquat conflict with FIFRA and, therefore, are . and to tolerate uncompensated injuries to preempted. 792 559 NEW YORK SUPPLEMENT, 2d SERIES [9] Dursban 2E was registered with EPA. For Dow to register its product, the 148 Misc.2d 83 ! EPA had first to find that the pesticide -would not have "unreasonably adverse ef fects" (7 U.S.C. Section 136a[c][5][C]) and that exposure to the product would not adversely affect human physiology (40 C.F.R. 162.11[l][i][F]; [ii][F]; [iii][D]). The EPA's registration, based as it is on 'the finding that Dursban 2E was not un reasonably risky to human beings, obviates Plaintiffs' remaining claims of negligence, strict liability in tort for defective design Robert M. MORGENTHAU, D istrict At. | torney New York County, Plaintiff Claiming Authority, 1 v. CITISOURCE, INC., Marvin B. Kaplan, ; Albert J. Kaplan, Robert Richards, . Stanley Friedman, Marvin Kushnick . and M artin Solom on, Defendants. Supreme Court, New York County, IAS, Part 51. . and breach of warranty. Plaintiffs' com plaint is, therefore, dismissed as to Dow July 24, 1990. . Chemical Company, Inc. . In postconviction forfeiture action aris- j [10] The remaining Defendants seek summary judgment on the grounds that the relevant scientific evidence shows that exposure to Dursban 2E could not have caused Little's injuries. Defendants' proof is contravened by the affidavits of Plain tiffs' two physicians, Drs. McClenathan and Zwirecki. The evidentiary material tendered by Plaintiffs is sufficient to raise a question of fact requiring a trial (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 1067-1068, 416 N.Y.S.2d 790, 390 N.E.2d 298). It is therefore ing out of convictions for selling worthless stock, the Supreme Court granted motion to confirm attachment. The Supreme Court, Appellate Division, 121 A.D.2d 353, 504 N.Y.S.2d 108, modified and remanded, Appeal was taken. The Court of Appeals, 68 N.Y.2d 211, 508 N.Y.S.2d 152, 500 N.E.2d 850, reversed and remitted. The Supreme . Court, _Appellate Division, .128 A.D.2d 459, 513 N.Y.S.2d 429, remanded. On remand, the Supreme Court, New York County, Stecher, J., held that: (1) claims by law firm and accounting firm for services rendered to former receiver of corporation were to be paid out of fund consisting of proceeds from sale of worthless shares of stock; (2) law firm's retaining lien on prop t ; I ORDERED, that Defendant Dow's mo tion for summary judgment is granted; and it is further ORDERED, that the motions for summa ry judgment by Defendants J.G. Pieri Com pany, Niagara Frontier, Inc., and Tops, Inc., are denied. erty delivered to it by corporate client was not lien upon funds attached in forfeiture proceeding and was therefore not entitled to priority created by forfeiture statute for liens upon money or property attached by claiming authority; and (3) balance of fund was transferred to federal court in which class action suit by defrauded shareholders 1 r; ' was pending for distribution to sharehold- ' ers in proportion approved by federal judge ' after any judgment is entered with undeliv- j erable balance remaining subject to further `i order of state court. '> Ordered accordingly. j 1. F orfeitures =10 In postconviction forfeiture action fol lowing convictions of corporate officials for grand larceny in second degree and viola00 to fc tt-0 MORGENTHAU v. CITISOURCE, INC. CUeu 539 N.Y^id 792 (Sup. 1990) 793 0f General Business Law, claims by second degree and violations of General Jw firm and accounting firm for services Business Law, was transferred to jurisdic tendered to former receiver of corporation tion of federal court hearing class action required to be paid out of forfeiture Buit by defrauded shareholders for distribu *fnnd which consisted of proceeds acquired tion to shareholders in proportion approved by corporation and individual defendants by federal judge after judgment is entered through fraudulent sales of worthless ' hares of stock. McKinney's CPLR 1310, . gnhds. 2, 5, 1311, subd. 1(a); McKinney's p en a l Law 156.40, subd. 1; McKinney's General Business Law 340, 352-c, .subds. 2, 5, 6. !/j , A tto rn e y a n d C lie n t = 184 with any undeliverable portion of fund re maining subject to further order of state court McKinney's CPLR 1310, subds. 2, 5, 1311, subd. 1(a), 1349, subd. 2(b, g); McKin ney's Penal Law 155.40, subd. 1; McKin ney's General Business Law 340, 362-c, subds. 2, 5, 6. Law firm's retaining lien was not gen- ;'eri lien for entire balance of account be- .Robert M. Morgenthau, Dist Atty., New ; tween attorney and corporate client, but York City (George M. Donohue, of counsel), 'ben only on that portion of corporation's pro se. property delivered by corporation or, on its "behalf, to attorney, and lien was not upon .funds attached in postconviction forfeiture -action against corporation and its officials, Garwin, Bronzaft, Gerstein & Fisher, New York City (Bruce E. Gerstein, of coun sel), for plaintiff class in class action. .and thus, law firm was not entitled to. Leon Friedman, Stroock Stroock & La- Apriority created by forfeiture statute which van, and Parker, Chapin, Flattau & Klimpl, t was limited to liens upon money or proper- New York City, for defendants. -ty attached by claiming authority. McKin ney's CPLR 1349, subd. 2(a). MARTIN B. STECHER, Justice: " ~ 1 Forfeitures =1 Primary purpose of postconviction for feiture statute is seizure and forfeiture of :proceeds of crime as law enforcement mea' sure; restoration of property to its true *owners, if any, is not reason statute was enacted. McKinney's CPLR 1310 et seq. 4. Forfeitures =10 Highest priority for distribution of pro ceeds of crime pursuant to postconviction forfeiture statute is given to amounts or dered to be paid by court in satisfaction of .any lien or claim against property forfeit ed; priority is not given to those with liens on nonforfeited property of person whose Hproperty was forfeited, nor to those with claims against person or corporation whose property was forfeited. McKinney's CPLR 1349, subd. 2(a). Forfeitures <=10 This is a motion for final judgment in a forfeiture action (Art 13-A, CPLR). As it is a civil action (CPLR, 1311, Subd. 1) a motion for judgment must be judged by the standards of any motion for summary judg ment in a civil action (see, e.g., CPLR, 3212, 3213, 3211[c]); that is, that "there is no substantial fact issue in the case and therefor no necessity for a trial" (Siegel, New York Practice, 278, p. 333). The sorry facts of this case are too well known (see 68 N.Y.2d 211, 508 N.Y.S.2d 152, 500 N.E.2d 850, rev'g 121 A.D.2d 353, 504 N.Y.S.2d 108; 128 A.D.2d 459, 513 N.Y.S.2d 429 on remand) to require de tailed repetition: suffice to say that the corporate defendant, operating under the direction of most of the individual defen dants, mulcted the corporation's sharehold ers of their stock subscriptions by false and fraudulent representations, resulting Balance of fund, which consisted of in a 27-count indictment handed down in Proceeds received by corporation and corpo New York County (People v. Marvin Kap rate officials through fraudulent sales of lan, el aL, Index No. 1913/86) alleging "^^tetess stock certificates, forfeited after violations of Penal Law, 155.40[1] (Grand convictions for grand larceny in Larceny In the Second Degree) and of Gen- 559 N.Y.S.2d--20 I I SERIES . DAVIDSON v. VELSICOL CHEMICAL Cite u 834 P J d 931 (N ev. 1992) Nev. ; 931 he admitted th a t' approximately rs p ^ t o that date, he had come ox xe of sexual assault upon n in this case, his daughter P.T. to the agreement, his prosecution offense was deferred for two "he agreement was entered into without objection as State's Ex- or cross-examination of C.T. and ` t ! ' ' :4. Agriculture :=9.13 > . > ! '. Ernest DAVIDSON, Darlene Davidson, " States =18.65 Individually and as Guardians ad Li Federal Insecticide, Fungicide, and Ro tem of Sherene Davidson and Ernest denticide Act (FIFRA) does not, expressly Davidson, Jr., their minor children, Ap preempt state tort actions against pesticide pellants, ! manufacturers based on failure to ade v. I quately warn or label. Federal Insecticide, VELSICOL CHEMICAL CORPO RATION, an Illinois corpora tion, Respondent Fungicide, and Rodenticide Act, 2 et seq., as amended, 7 U.S.C.A. 136 et seq.; U.S.C.A. Const. A rt; 6, cl.'2. : cerning an event that occurred No. 22464. ; 5. States =18.5, 18.7 , ,, y were nine and ten years of age, years prior to trial, relating to 3 Supreme Court of Nevada. With : respect to preemption of state law, intent of Congress may be implied if or not they were present in the Aug. 12, 1992.; Congress occupies entire Held or if there is and whether the victim and the actual conflict between state and federal t were in the bedroom or the bath ing the commission of the offense, Des not rise to a probative value rants a reversal of this conviction. d affirm. Homeowners brought action against manufacturer of termiticide to recover for injuries allegedly caused by th product The Eighth Judicial District Court, Clark County, Joseph S. Pavlikowski, J., granted law. U.S.C.A. Const A rt 6, cl. 2. : 6. States =18.7 For purposes of implied preemption of state law, Congress occupies entire field if federal regulation is so pervasive that Con manufacturer's motion in limine, ruling gress left no room for states to supplement that action was preempted by federal law, it if federal act involves field in which ^ and homeowners appealed. The Supreme federal interest completely dominates field, Court held that: (1) Federal Insecticide, or if goals sought or obligations imposed Fungicide, and Rodenticide Act (FIFRA) by federal law reveal purpose to preclude does not expressly preempt state tort ac state authority. U.S.C.A. Const. Art. 6, cl. tions against pesticide manufacturers based on failure to adequately warn or label, but (2) FIFRA implicitly preempts such claims. , Affirmed. 2. '' - 7. Agriculture.=9.13 1 States =18.65 :Federal Insecticide, Fungicide, and Ro denticide Act (FIFRA) implicitly preempts state tort claims based on failure to ade 1. States @=18.3 Where Congress has expressly provid ed by preemption, resort to implied preemp tion doctrines is unnecessary; instead, court need only determine scope of preemp tion. U.S.C.A. Const. Art. 6, cl. 2. 2. States @=18.11 1 quately label pesticide. U.S.C.A. Const. A rt 6, cl. 2; Federal Insecticide, Fungicide, and Rodenticide Act, 2(q)(l)(E), (bb), 3(c)(5), (cX5)(C), 9(c)(1), 12(a)(lXA), (a)(2)(M), 24, 24(a, b), as amended, 7 U.S.C.A. 136(q)(lXE), (bb), ,136a(c)(5), (c)(5)(C), 136g(cXl), 136j(a)(l)(A), (a)(2)(M), 136v, 136v(a, b); 24(a, b); as amended, 7 U.S.C. In determining whether state law is (1982 Ed.) 136v(a, b). . . . . . . . preempted, courts must presume that his toric police powers of states are not to be superseded by federal statute unless that is Johns & Johns,,,Las Vegas, clear and manifest purpose of Congress. lants. r'^rf n n i n __ l '' t . i cb, -i A ` Jolley, Urga, Wirth & Woodbury, Las Vegas, and Spriggs & Hollingsworth, Washington, D.C., for respondent Crockett & Myers, Las Vegas, Baron & Budd and Charles S. Siegel, Dallas, Tex., 830 y f j ?932 Nev. 834 PACIFIC REPORTER? 2d SERIES I f * tt..'! t i t and Arthur Bryant arid Priscilla1Budeiri, broadcast spraying areas designated for Washington, D.C., for amicus curiae Trial crawl spaces.' The. Davidsons moved in Lawyers for Public Justice.) limine for a ruling that the post-accident Cory, MacDonald & Van, Las Vegas, for label change on Velsicol's Gold Crest Ter- Nat. Pest Control Assn. mide be admissible at trial.' Velsicol coun tered in limine, seeking a ruling that FI OPINION PER CURIAM: ' "' \ 1 FRA pre-empted state tort claims based on a failure to adequately label or warn and that the evidence of subsequent remedial' The main issue presented by this appeal is whether the Federal Insecticide, Fungi cide, and Rodenticide Act, 7 U.S.C. 136 et seq. ("FIFRA"), ' pre-empts state common 1law actions against the manufacturers of pesticides based on failure to adequately label the pesticides. For the reasons set forth below, we conclude that FIFRA impli edly pre-empts such tort claims. measures was.inadmissible.; - . --<v' - ,1 ' The district court ruled that FIFRA im pliedly pre-empts state common law tort suits against "manufacturers of Environ mental Protection Agency ("EPA")-reg- istered pesticides to the extent that such actions are based on claims of inadequate labeling." The; district court also ruled 1 that the evidence of the subsequent remedi 4 FACTS al measures was inadmissible. In March of 1986, appellants ("the David sons") filed suit against respondent Velsi col Chemical Corporation ("Velsicol"). The Davidsons allged that in 1979, Bill Beckmeyer's Pest>-A-Way ("Pestaway") applied Gold Crest Temide, a termiticide produced by Velsicol, to their partially constructed home. Pestaway sprayed, by a method called "broadcast spraying," the ground in an area intended for the home's crawl space.1 By broadcast spraying, toxic chem icals allegedly migrated into the Davidsons' home. The Davidsons claimed that Velsicol failed t give adequate warning and appro priate instructions concerning the applica tion of its product to the foundation of newly constructed residences, namely, that broadcast spraying was inappropriate. They furthr claimed that as a result, they were exposed to hamful quantities of chemicals contained in Gold Crest Temide and suffered personal injuries. The David sons sought compensatory and punitive damages based on failure to warn, negli gence and strict liability. In 1980, after Pestaway had sprayed the Davidsons' home, Velsicol changed its label to provide a strict prohibition against : . DISCUSSION .. - [1] Under the Supremacy Clause, U.S. Const., Art. VI, cl. 2, state laws which are contrary to, or which interfere with, the laws of Congress are invalid. Wisconsin Public Intervenor v. Mortier, --- U.S. I l l S.Ct. 2476, 2481, 115 L.Ed.2d 532 (1991) (citing Gibbons .v. Og den, 9 Wheat. 1, 211,. 6 L.Ed. 23 (1824)). "If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted." ' Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 , S.Ct. 615, 621, 78 L.Ed.2d 443 (1984). This intent may be either expressed in the terns of the statute or implied. Mortier, -- U.S. at ---- i l i ' S.Ct at 2481.. Where Congress has expressly provided for pre emption, resort to the implied pre-emption doctrines is unnecessary; instead, the court need only determine the scope of the pre-. emption. Cipollone , v. Liggett Group, : Inc., -- U.S. -- -, -- , 112: S.Ct. 2608,; 2618? 120 L.Ed.2d 407 (1992). J , : .... ................ i [2,3]. In determining whether state law? is pre-empted, courts must presume that' the historic police powers of the states are j not to be superseded by the Federal Act'] 1. T h e D a v id so n s c o n tr a s t b ro a d c a s t s p ra y in g to "rodding and trenching." B roadcast is defined as "[c]ast ab ro ad r all o v er a n rea, as seed sow n thus rath er th an in drills o r row s." The Living W ebster E ncyclopedic D ictionary 124) ( 1 9 7 5 ) . : ' -'- ./.' I 4 831 HDAVIDSON vii VELSICOL CHEMICAL Nev.i 9 33 Cite a s 834 P-2d 931 (N ev. 1992): unless that is the clear and manifest pur lies on Arkansas-Platte & Gulf v. Van pose of Congress; Rice v. Santa Fe Eleva Waters & Rogers, 959 F.2d 158 (10th Cir. tor Corp., 331 U.S. 218, 230, 67 S.Ct, 1146, 1992), where the United States Court of 1152, 91 L.Ed. 1447 (1947). Tort remedies Appeals for the Tenth Circuit held that . which compensate for personal injuries are state damage actions based on labeling and traditionally considered properly within the scope of 9tate superintendence. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 144, 83. S.Ct. 1210,' 1218, 10 L.Ed.2d 248 (1963). The burden of estab lishing pre-emption is on the party seeking to give the statute such effect Silkwood, failure to warn are impliedly pre-empted by FIFRA.2 i There is a split of authority on this issue. Ferebee and Arkansas-Platte represent the two views, and we therefore confine our discussion to these cases.3 464 U.S. at 255, 104 S.Ct. at 625. The Davidsons argue that FIFRA does not pre-empt its inadequate labeling claims against Velsicol. They cite Ferebee v. I. Congress did not expressly pre-empt state tort claims. Velsicol argues that FIFRA expressly Chevron Chemical Co.,. 736 F.2d 1529, pre-empts state tort claims which are based 1539 (D.C.Cir.1984), cert denied, 469 U.S. on failure to adequately label. FIFRA pro 1062, 105 S.Ct. 545,'83 L.Ed.2d 432 (1985), vides: wherein the United States Court of Ap- (a) In general . peals for the District of Columbia held that FIFRA does not. pre-empt such, tort claims. A State may regulate the sale or use of any federally registered pesticide or Velsicol, in turn, argues that the district device in the State, but only if and to the court properly found that FIFRA pre extent the regulation does not permit any empts the Davidsons' claims. Velsicol re- sale or use prohibited by [FIFRA]. 12. V elsico l a ls o re lie s o n Papas v. Upjohn Co., 926 F .2d 1019 (11th Cir.1991).' At the tim e of o ral argum ents in this case, a petition for w rit of c e r tio r a r i h a d b e e n file d in Papas. See -- U.S. ------ , 112 S.Ct. 3020, 120 L .E d .2 d 892 (1991). H ow ever, since oral argum ents, the U nited States Suprem e Court issued a sum m ary order granting certiorari, vacating the judgm ent and "rem an d [in g ] to the U nited S tates C o u rt o f Ap peals for the Eleventh Circuit for fu rth er consid e ra tio n in lig h t o f Cipollone v. Liggett Group, Inc., [-- U .S .------ , 112 S.Ct. 2608, 120 L .E d.2d 407 (1992) ]." See Papas v. Zoecon Corp., ----U.S. ------ , 112 S.Ct. 3020, 120 L .E d .2 d 892 (1992). 'V f Cipollone in v o lv e d w h e th e r th e P u b lic H e a lth C igarette Sm oking Act o f 1969 o r its 1965 prede cessor, the Federal C igarette L abeling and Ad v ertisin g Act, pre-em pted p e titio n er's co m m o n law claim s against several cigarette m anufactur e rs. Cipollone, -- U.S. a t ------ , 112 S.C t. a t 2613. Cipollone a n n o u n c e d th a t if th e re is a determ ination of express pre-em ption, it is not necessary to infer Congressional intent (through the application of the im plied pre-em ption doc trin e s). Cipollone, -- U.S. a t ------ , 112 S.C t. a t 2618. T h e Papas c o u rt a p p a re n tly c o n tra v e n e d the p re -e m p tio n a n a ly sis se t fo rth in Cipollone by failing to determ ine w hether FIFR A 'expressly pre-em pts state tort claim s based o n inadequate la b e lin g . See Papas, 926 F .2d a t 1024 ("[W ]e adm it to a little uncertainty and pass over the question of express preem ption.") O ur opinion ; is c o n s o n a n t w ith Cipollone in th a t w e a d d re ss im plied pre-em ption only after concluding that FIFRA does not expressly pre-em pt such claim s (as discussed below). W e d o n o t fin d Cipollone in stru c tiv e o n w hether : FIFRA pre-em pts the Davidsons' claim s; thus, w e decline to draw anything fur th er fro m the C ourt's su m m ary reco n sid eratio n o rd e r. P erh ap s Ju stice B lack m u n a rticu lated it b e s t in Cipollone w h e n h e sta te d : "I c a n o n ly speculate as to the difficulty low er courts will encounter in attem pting to im plem ent the . C o u rt's d e cisio n ." Cipollone, -- U.S. a t ------ , 112 S.Cl at 2631 (B lackm un, J., co n cu rrin g in part and dissenting in part). 3. Federal district courts finding pre-em ption in c lu d e Hurt v. Dow Chemical Co., 759 F.S upp. 556 (E.D .M o.1990); Kennan v. Dow Chemical Co., 717 F .S u p p . 799 (M .D .Fla.1989); Fisher v. Chevron Chemical Co., 716 F.S upp. 1283 (W .D .M o.1989); Herr v. Carolina Log Bldgs., Inc., 771 F .S u p p . 958 (S.D .Ind.1989); Fitzgerald v. Mallinckrodt, Inc., 681 F .S u p p . 404 (E .D .M ich. 1987). Cases in w hich district courts found no pre e m p tio n in clu d e Riden v. ICI Americas, Inc., 763 F .S u p p ., 1500 (W .D .M o.1991); Evenson v. Os mose Wood Preserving Inc., 760 F .S u p p . 1345 (S.D .Ind.1990); Stewart v. Ortho Consumer Products, N o. 87^)252, 1990 W L 36129 (E .D .L a. 1990); Cox v. Velsicol Chem. Corp., 704 F .S u p p . 85 (E .D .Pa.1989); Roberts v. Dow Chem. Co., 702 F.S upp. 195 (N.D.I11.1988). $1934 viNev. J <834; PACIFIC REPORTER, 2d SERIES '*'(''j (b) Uniformity gress can speak with - drastic :;Such State shall not impose or continue , .whenever it chooses to assure full fedei; in effect any requirements for labeling al authority." or packaging in addition to or different Dewey v. R.J. Reynolds Tobacco Co., 42? , . from those required under [FIFRA]. NJ. 69, 577 A.2d 1239,1251 (1990) (quoting! 7 U.S.C. 136v(aHb). Based on this lan in part Bethlehem Steel Co. v. New York% guage, several courts have held that FI State Labor Relations Board, 330 U.S.l FRA expressly pre-empts state action re 767, 780, 67 S.Ct. 1026, 1033, 1 L.Ed. 12341 garding pesticide labeling. See, e.g., Fitz (1947)).4 Therefore, we hold that FIFRAj gerald v. Mallinckrodt, Inc., 681 F.Supp. does not expressly pre-empt state tort ac-| 404, 406 (E.D.Mich.1987); and Kennan v. tions against pesticide manufacturers: Dow Chemical Co., 717 F.Supp. 799, 807 based on failure to adequately want o r || (M.D.Fla.1989) (pre-emption based on the label. !l " express language and legislative history). However, the majority of courts hold that FIFRA does not expressly pre-empt II. Congress implicitly intended to pre . empt state tort claims. ; state action of pesticide labeling. See, e.g., [5] ' The next question is Whether Con- -| Ferebee, 736 F.2d at 1542; Montana Pole gress implicitly intended to pre-empt state & Treating Plant v. I.F. Laucks, 775 tort claims. Mortier, -- U.S. at ----- , i l l F.Supp. 1339,1343 (D.Mont.1991); Riden v. S.Ct. at 2481. Congress' intent may be ICI Americas, Inc., 763 F.Supp. 1500, 1505 implied if Congress occupies an entire field vi (W.D.Mo.1991); Hurt v. Dow Chemical or if there is an actual conflict between Co., 759 F.Supp. 556, 558-59 (E.D.Mo.1990); state and federal law. Arkansas-Platte, . Fisher v. Chevron Chemical Co, 716 959 F.2d at 161. ' F.Supp. 1283, 1286-87 (W.D.Mo.1989). [4] We conclude that the majority's po A. Congress occupies the entire field of sition is more persuasive. Although FI pesticide labeling. 1 - FRA provides that states shall not "impose or continue in effect" labeling require ments which differ from FIFRA, section 136v(b) makes no reference to the pre-emp tion of state common law remedies. Be cause Congress has expressly pre-empted common law in other pre-emption clauses, Congress' silence cannot be ignored--it is inimical to a finding of express pre-emp tion. Riden, 763 F.Supp. at 1505-06.' In deed, as stated by the New Jersey Supreme [6] Congress occupies an entire field if: ' (1) the federal regulation is so pervasive such that Congress left no room for the states to supplement it; (2) the federal act. involves a field in which the federal inter-est completely dominates the field; or (3) if the goals sought or the obligations imposed by the federal law reveal a purpose to preclude state authority. Mortier, -- U.S. a t ----- -, 111 S.Ct. at 2481-82. , Court, courts should not strain to find pre [73 The Ferebee court recognized that emption of state law: . FIFRA does not allow states to directly -; [0]ur federal system, with its. high re impose additional labeling requirements.^ gard for the several States' powers of Ferebee, 736 F.2d at 1541/ The court, how governance requires that judges not ever, reasoned that state action which has 1 preempt state law lightly.... [W]hen the effect of changing federal labeling re- : the Supreme Court considers whether quirements is permissible because it falls the Congress has preempted state law, within the states' power to regulate the "[a]ny indulgence in construction should "sale or use" of pesticides authorized in be in favor of the States, because Con- 136v(a). Id. ; ' ' 4. In the sam e fashion, as Congress could have ty an d H ealth Act o f 1970, 29 U.S.C; 653(b)(4). included a reference to pre-em ption of state (1982). .Fisher, 716 F .S u p p . a t 1287, n. 1. T hus, com m on law. Congress could have also includ the lack of reference to state com m on law is ed a "savings clause" expressly sheltering state - im portant only because of the presum ption com m on law as.it did in the O ccupational Safe- a g ain st pre-em ption. Id. 833 0-M rlDAVIDSON v. VELSICOL CHEMICAL Nev. 935 Cite as 834 P J d 931 (Nev. 1992) ; fli i. In contrast,' the Arkansas-Platte court completely preempt State authority in ' fjheld that FIFRA impliedly pre-empted regard to labeling and packaging.. instate tort actions, reasoning that the feder^ al government occupies the entire field of yj: regulating labels.. Arkansas-Platte, 959 .j. F.2d at 164- Our review of the legislative Sl history, and the federal, regulations sup-i ports a ruling that Congress,occupies the entire field of pesticide labeling regulation. Id. at 16 (emphasis added). 1 Moreover, in its report to the Senate, the Agriculture and Forestry Committee noted that section 136v(b) "preempts any state labeling or packaging requirements differ ent from such requirements under the Act." S.Rep. No. 838, 92d Cong., 2d Sess. - In 1947, :Congress enacted FIFRA to re (1972) reprinted in 1972 U.S.C.C.A.N. place the Insecticide Act of 1910. Mortier, 3993, 4021 (emphasis added); see also, -- U.S. at - --y 111 S.Ct at 2479 (citing 61 S.Rep. No. 970, 92d Cong., 2d Sess., re Stat. 163). Originally, FIFRA "was pri printed in 1972 U.S.C.C.A.N. 4092, 4128 marily a licensing and labeling statute." (the Commerce Committee also stated that Id. (quoting Ruckelshaus v. Monsanto Co., 136v(b) "pre-empts" any state labeling or 467 U.S. 986, 991, 104 S.Ct 2862, 2866, 81 packaging requirements).8 . L.Ed.2d 815 (1984)). Increased environ The 1972 Amendments added 7 U.S.C. mental and safety concerns prompted Con 136v. That section, captioned "Authority gress to comprehensively amend FIFRA in of the States," provided in part: 1972. Id. (citing 86 Stat 973). These (a) A State may regulate the sale or use 'amendments enhanced .FIFRA's registra of any federally registered pesticide or tion and labeling standards, and the EPA device in the State, but only if and to the . was granted increased enforcement author- extent the regulation does not permit any ity.. Id. -- U.S. at ------------, 111 S.Ct. at sale or use prohibited by [FIFRA]. : 2479-80. Thus the 1972 amendments con (b) Such State shall not impose or contin verted FIFRA from a labeling law into a ue in effect any requirements for label comprehensive regulatory statute. Id. ing or packaging in addition to or differ (quoting Ruckelshaus, 467 U.S. at 991, 104 - ent from those required under [FIFRA]. ; S.Ct at 2866). ' 7 U.S.C. 136v(aHb). In 1988, `Congress A House of Representatives'"report on added the title, "In general,"'to subsection the 1972 amendments to FIFRA indicated (a) and added the title, "Uniformity," to the proposed authority of the states: subsection (b). Pub.L. No. 100-532, 102 The States are given prime responsibility Stat. 2654, 2682 (1988). : for the certification and supervision of FIFRA- precludes the EPA from autho pesticide applicators. The ' Federal rizing the sale of a pesticide unless the Government sets the program standards product, as labelled, will not cause "unrea the States must meet. State authority sonable adverse effects on the environ to change Federal labeling and packag ment." 7 U.S.C. 136a(c)(5)(C). Such ef ing is completely preempted, and State fects are defined as: "[A]ny unreasonable authority to-1further regulate "general risk to man or the environment, taking into use" pesticides is partially preempted. account the economical, social, and environ H.R.Rep. No. 511, 92d Cong., 2d Sess. 1-2 mental costs and benefits of the use of any (1972) (emphasis added). This report reit- pesticide." 7 U.S.C. 136(bb). The label erated that: must be such that it is "likely to be read In dividing the responsibility between and understood by the ordinary individual . the States and the. Federal Government under customary conditions of purchase for the management of an effective pesti and use." 7 U.S.C. 136(qKU(E). cide program, the Committee has The EPA cannot approve a pesticide un adopted language which is intended to less it complies with FIFRA's require- 5. H ouse R eport 10729, w hich ultim ately was enacted as th e 1972 am endm ents, w as referred to two com m ittees: (1) the A griculture and For estry Com m ittee, and (2) the C om m erce Com- m ittee. See S.R ep. No. 838, 92d Cong., 2d Sess. (1972); reprinted in 172 U.S.C.C.A.N. 3993; n Q S.Rep. N o. 970, 92d Cong., 2d Sess., reprinted in O 0 1972 U.S.C.C.A.N. 4092 (1972). i *  3 6 Nev- . 834' PACIFIC REP0RTER-i2d.SERIES ; ' . ' -> Iff H j ,,,i-\ ments,' as set forth in 136(c)(5), and the t United States ^Attorney - General who, in EPA's labeling requirements. 40 C.F.R.r turn, will institute criminal or civil proceed 152.112(f). The EPA has extensively ings against th e : violator.' 7 U.S.C. regulated pesticide labeling, see generally 136g(c)(l).6 : 40 C.F.R. 156 (1991), and provides specif- 1 We reject Ferebee's reading of FIFRA ic requirements for the contents of each as it conflicts with the language and legis label (including ingredient . statements, lative history of the statute/ First, 'the warnings, and directions for use). 40 ' excerpts from the legislative;history dem C.F.R. 156.10(a)(1). The EPA details onstrate that Congress intended section how warnings are to be presented and pro 136v(b) to "completely pre-empt" state au vides specific requirements for the content, thority to change federal labeling. . See, placement, type, size and prominence of the e.g., H.R.Rep. No. 511, 92d Cong., 2d Sess. warnings. 40 C.F.R. 156.10(h). 1-2 (1972). Second, it is unlikely that Con gress would have: designated federal con Also, there must be a statement of prac trol over labeling in section 136v(b) if it tical treatment. . 40 . C.F.R. 156.- . thought that the provision could be circum 10(h)(l)(iii).. If hazards exist to humans vented by state action authorized by and domestic animals, precautionary state 136v(a). Third, federal regulation of pes ments are required which "indicat[e] the ticide labeling created by FIFRA is "so particular hazard, the route(s) of exposure pervasive" and "so dominant" such that and the precautions tq .be taken to avoid Congress left no room; for the states to accident, injury or damage." . 40 C.F.R. . supplement it.7-, ., . i 156.10(h)(2)(i)(A). Directions for .use of Therefore, we hold that FIFRA occupies the pesticide must be stated in terms which : the entire field of pesticide labeling and are easy to read and understand by the implicitly pre-empts state tort claims based average person. 40 C.F.R. 156.i0(i)(l)(i). on failure to adequately label the pesti When followed, they must be sufficient to cide.8 protect the public "from fraud ,and from . personal injury." Id. If a pesticide manu B. State tort claims conflict >with FI- facturer violates either (the general require-. ments of FIFR or the regulations promul-. . The final question is whether state tort gated by the EPA, the EPA will notify the claims actually conflict with FIFRA. Mor- 6. A m ong other things, FIFRA m akes it unlaw ful p re -e m p te d . Mortier, -- - U.S. a t ---- , 1i 1 S.C t. to sell o r distribute a pesticide that is n o t reg a t 2486; see also Arkansas-Platte, 959 F .2d a t istered o r to alter the EFA-approved com posi 163. I n Mortier, th e C o u rt s ta te d :: -, tio n of the p ro d u c t.' 7 .S.C. 136j(a)(l)(A ), (2)(M ). In addition, it is' unlaw ful to sell a m isb ran d ed pesticide. (See 7 U.S.C. 1 3 6 (q )(l) fo r a description of w hen a pesticide-is. m is b ra n d e d .) - I n th e f ir s t p la c e ; 1136v itself u n d e r c u ts s u c h . an inference. The provision im m ediately fol low ing th e statute's g ran t .of reg u lato ry au th o rity to th e S tates declares th at "[s]uch S tate shall not im pose o r continue in effect any 7. Several co u rts have sidestepped this aspect o f . requirem ents for labeling and packaging in FIFRA by finding that FIFRA does not create a addition to o r different from those required com prehensive schem e to pr-em pt "all state u n d e r" FIFRA . 7 U.S.C. 136v(b). T his lan la w c la im s." See, e.g., Riden, 763 F .S u p p l at guage w ould be pure surplusage if Congress 1506. T h ese c o u r ts h a v e p p ro a c h d im p lie d 1" h a d in te n d e d to occupy- th e e n tire f i e l d - o f pre-em ption too broadly. The dispositive ques pesticide re g u la tio n . Taking such pre-emption tion is w hether FIFRA occupies the particular field o f p e stic id e la b e lin g . See Mortier, --^ U.S. a t ------ , 111 S.C t. a t 2486 ("W h a te v e r e lse F IF R A m ay supplant, it does not occupy the field of pesticide regulation in general or the area of ' local use p erm ittin g in p articu lar.") as the premise, 136v(a) would thus grant States the authority to regulate the "sale or use" o f pesticides while 136v(b) w ould super fluously add that States did not have the au thority to regulate `labeling or packaging," an addition that w ould have been doubly super 8. T his holding is strengthened by the recent fluous given FIFRA's historic focus on labeling . U n ite d S ta te s S u p re m e C o u rt's d e cisio n in Mor . . to begin with. . . ,? tier, w h e re th e C o u rt n o te d th a t th e e n tir e field , i Mortier, -- . U.S. a t ^ -- , 111 S.C t. a t 2486 (em - o f pesticide regulation w as not pre-em pted but, ... p h asis.ad d ed ). ,. . - in dicta, em phasized th at pesticide labeling w as >!.- <S) bfis -rii?*; ' 835 04b3 | v9 3 8 ,v N ev . .! 834 PACIFIC!'REPORTER,: 2d .SERIES on inadequate; labeling but that FIFRA im- stated above, >we affirm the order of: the pliedly pre-empts such claims.- Our re<suovl*u- .d-7i--s*t--rict .court.,an.' o'.o... . i.*v?s*: v1 tion of this issue makes it unnecessary for ;[ .v; ; / J V v ?' ! iTr.-i; us to address the Davidsons' i ining : - ( o l ~ TM > i,.......... contention: ' Accordingly, for the reaisons 7'v,!*`''77 | ^- i '.. }M - : -v: tr- -..= .<'c:'n*<; 1 '.'Ci IN;*, C:i:*1 - ; ,NN> i'i );!h : '!' ! . . 7, ... * . 1 ' ,'1 ' :-i-:n-. > : 'j ' s i J n j i o a i '*36yf*fA,'3jfP ,!w- < -!l'V ?') ?.. -Mi--''i !..; 4 no Vs*:*"Ion; Mb''sjj.'mjsbo' hjj -.A -v ' -- .. :,,;T r;; I n.".rtWv*HPV-- ' ( ''i-.-Ood 'rN r'rioiii'vy ' hNio'B i'M .SoJ-i'V i::': r . f ' c ~ 7 * 'v-'T.i .'.'v i ' * i.-v .; x a (!!>'.! ;> ':;i .v .:j - t K i.y y v .D'.iss'tfK1 " - -;i h..'d I *0 W'Mi!? >(>?' .,,if !f<.tf-i 'has--.Vd" ' i*': X * }. >:< : i `iVi - : - ' &! j-fi. J . 'i 'V 5 : ; -o-j :! ' . - : ! ;A" :: va! ;- j. -'; 'i '. .> ' ' Si : j ..ii.. <r!:> i ; : . : i-. ' . . 'fi'-' i 1 - l. 'm.i i s . 1?. .!' ; -S . i - -!.-' " , av - ; s-r - ; ; ...v . o-.: -,'. hjY:?, ->.{' ii;ii;!' ->rr) a! 'o ' ',A.' J-': "i-l ''-yif::Ooi - ' i'; " ' .V ',:- v V - '.;i.A : ` oi-.L- : ...' ! *' - * ; V1 !,!R >'; - ; "*'"' ''7 ' : : r / 3 . 1 , ^ . .' . : ,0. il J: : : . i c i .. . iV fr ' 7 k :`: Vl "i >' - : - ' a:-.-- ; r4 ::.i v 'i*:;: ; -1, IV :>) a ' , : i: 1';.' ..l` i. ' > .. u . ,i r!.- ' .. .i T ' `i : .V _:r! i.-'l-.'it.j rr!;Ap -v. "' >. ... . `..1;*?*.'V `A. .i-A; :,.:o -a .!-:!>-Vt-vl lii . `j r h i K W V.-vj'F. ' ' ' \ : 'iN v ! ,' . ^; v'- ., .... . . . . . .. ; .........' . VJ' ..c, . . . . A , ; . , ..-i.!. .1 C !A ' : l ' ; Jc-Otib .* ' i .. '4`~'; !.;' ;w !- .-..i.i :x i :v. 1 ' I'Si'! `1. . ... - . .*! - ' : "i : .! ` ; ' -i.: - .' , v. <"' .' ->v.- .'^L^r ..r'.i "Y.-xav r r . ->CAA'' ^6iA> '0 lij jo :: : i?:i *. ; , y\- si .., ' o ; . ; ;. '.v. 1 : - y-: \ v- . !v tM *' ! ^. =i ,;' 'c ; ;? '! ; i : i, i . : ' A / '1.0 . ..`O:;i > \Wt?} ^ , : . : . ;... / .v ` ; I ' . A'!A: j O l AHG y b "i rx:: ................... .............................................:'0.; > -'rij V'i . . _ ; Jah* viri ;>.! -: wi'iViTfi .i- t!a \ - > . : v.*.',? ^ ' ,-.*'.i' i b!iio;- ''-jinai.T>icb--- . ; iiofs ..AiA: (ry -So: V-' ' " `-'jv' &-- t s nj noO ,S8?t 1 -9 .: ^ ii/v il r . s . v .f Yi.dtri -t-fc y d i (I s r-.^ -icicsi -'(? ^I'^sfted-i tiro T 836 E)-R 136 Ark. 834 SOUTH WESTERN .REPORTER, 2d SERIES -r . . 309 Ark. 426',. 4. Evidence =>213(1) ` CIBA-GEIGY CORPORATION, ' Although testimony of settlement ne Appellant, gotiations might have been admissible as it ... . y. John ALTER, Appellee. related to breach of settlement contract, `such testimony was inadmissible on issues of 'strict liability, negligence, breach of ! , . ' No. 91-235. ^ 123 warranty and misrepresentation in action Supreme Court of Arkansas. " May 26, 1992. Com farmer who sustained severe in jury to his com crop allegedly as result of use of herbicide, brought action against manufacturer of herbicide alleging theories of strict liability, negligence, breach of warranty, misrepresentation, and breach of settlement contract. The Circuit Court, Ar kansas County, Russell Rogers,!., entered judgment on jury verdict awarding farmer $100,410.51, and manufacturer appealed. by com farmer against herbicide manufac turer. 5/ ;Trial =>3(5) , ... Trial court abused its discretion in fail ing to bifurcate trial so as to separate breach of settlement contract claim from strict liability, negligence, breach of war ranty and misrepresentation claims brought against herbicide manufacturer by com farmer, where failure to bifurcate re sulted in inadmissible evidence of settle ment negotiations coming before jury. Rules Civ.Proc., Rule 42(b). The Supreme Court, Newbem, J., held that: (1) trial court abused its discretion by re 6. Agriculture =>9.13 fusing to bifurcate trial, so as to separate States =18.65 breach of settlement contract claim from Federal Insecticide, Fungicide, and Ro remaining claims; (2) Federal Insecticide, denticide Act did not preempt com farmer's Fungicide, and Rodenticide Act did not claims for strict liability and negligence preempt inadequate labelling claims; and based upon inadequate labeling. U.S.C.A. (3) award of prejudgment interest was Const.Amend. 6; Federal Insecticide, Fun proper. gicide, and Rodenticide Act, 2-31, as Reversed and remanded. amended, 7 U.S.C.A. 136-136y. 1. Appeal and Error =964 Absent abuse of discretion, trial court's decision regarding bifurcation of claims or issues will not be reversed. 2. Trial =3(1) Purpose of rule allowing bifurcation of trial of claims or issues is to further conve nience, avoid delay and prejudice, and serve needs of justice; primary concern is effi cient judicial administration, as long as no party suffers prejudice by bifurcation. Rules Civ.Proc., Rule 42(b). 3. Evidence =213(1) Offers of compromise or settlement are inadmissible to prove party's liability on underlying claims; they may, however, be admissible if offered for another pur pose. 7. States =18.11 Absent expressed preemptive lan guage, congressional intent to supersede state law may be implied. 8. States =18.5, 18.7 Implied preemption can occur when scope of federal regulation is so pervasive as to make reasonable inference that Con gress left no room for state to act, when state or federal law actually conflict, when compliance with state and federal law is physically impossible, or when state law stands as obstacle to accomplishment of full objective of Congress. 9. States =18.13 Historic police powers of states are not to be superseded by federal act unless it is clear and manifest purpose of Congress. CIBA-GEIGY CORP. v. ALTER A. 137 10. States =>18.11 Cite u 834 S.W.2d 136 ( A r t 1991) 17. S ales =261(1) Burden is on moving party to prove Affirmation of fact must be part of Congress intended to preempt state law. basis of parties' bargain to be express war 11. Appeal and Error =927(7) Trial =139.1(17) When asked to review denial of motion for directed verdict, Supreme Court exam ines evidence, along with all reasonable inferences deducible from it, in light most ranty. . 18. Sales =261(1) When buyer is not influenced by state ment in making his or her purchase, state ment is not basis of bargain and thus not express warranty. favorable to party against who motion is sought; only when proof of one party is so clear, convincing, and irrefutable that no other conclusion could be reached, should issue be taken from jury and decided by court 19. Sales =262 Herbicide manufacturer's advertising materials, which contained express warran ty that farmer need not worry about crop injury when using herbicide, were not basis of bargain and thus did not constitute ex 12. Contracts =9(1) press warranty, where com farmer did not To have valid contract, all terms read any of advertising materials. should be definitely agreed upon; however, it does not follow that parties must share identical, subjective opinions as to meaning of terms. 20. Sales =445(2) Whether herbicide manufacturer's statements that herbicide was safe and would not injure com crop were affirma 13. Compromise and Settlement =24 - Whether com farmer and herbicide manufacturer entered into binding, mutual agreement on yield loss compensation was tions of fact or mere opinions or commen dations was question for jury in breach of warranty action brought by com farmer against herbicide manufacturer. question for jury in breach of settlement 21. Sales =286 contract action brought by com farmer. Limitation of remedies provision which 14. Contracts =9(1) Terms of contract are reasonably cer tain if they provide basis for determining existence of breach and for giving appro restricts remedies available to buyer when breach of warranty is established is avoid ed by buyer if limitation fails of its essen tial purpose. AC.A. 4-2-719(l)(a), (3). priate remedy. 22. Sales =260 15. Compromise and Settlement =7 Although no precise dollar figure was agreed upon, terms of settlement contract between com farmer and herbicide manu facturer were not too indefinite to be enfold cible, where formula, from which com farmer was able to arrive at precise dollar figure for yield loss compensation, was Unconscionability of limitations of rem edies provision must be determined in light of general commercial background, com mercial needs in trade or particular case, relative bargaining positions of parties, and other circumstances existing when contract was made. A.C.A. 4-2-719 comment. 23. Fraud =61 agreed upon by parties. Punitive damages are available in 16. Sales =260 cases of misrepresentation or deceit ` If express warranties and disclaimer of 24. Interest =39(2.15) express warranties can not reasonably be In cases where damages cannot be construed as consistent with each other, ascertained at time of loss, prejudgment disclaimer is ineffective. interest should not be allowed. 138 Ark. 834 SOUTH WESTERN REPORTER, 2d SERIES 25. Interest =>39(2.50) Prejudgment interest could be award ed for damages which accrued after com fanner provided herbicide manufacturer with all necessary harvest figures; dam ages from herbicide were capable of exact determination at that time. Dual. Gives you peace of mind. That's worth alot." Dual was accompanied by a "label," con sisting of several printed pages, which con tained the following language at page five; Conditions of Sale and Warranty * ' * * * CIBA-GEIGY warrants that this product G. Spence Fricke, Little Rock, Winthrop A. Rockwell, Minneapolis, Minn., Lawrence S. Ebner, Washington, D.C., for appellant conforms to the chemical description on the label and is reasonably fit for the purposes referred to in the Directions for Use subject to the inherent risks referred James M. Moody, Little Rock, amicus ` to above. CIBA-GEIGY makes no other brief for National Agricultural Chem. As express or implied warranty of fitness or soc. ' merchantability or any other express or Russell D. Berry, De Witt, DeWitt Shy, Jr., Memphis, Tenn., Chad Farris, Chief Deputy Atty. Gen., L. Moulton, Asst. Atty. Gen., Little Rock, for appellee. implied warranty. In no case shall CIBA-GEIGY or the Seller be liable for consequential, special, or indirect dam ages resulting from the use or handling of this product. NEWBERN, Justice. Directions for Use John Alter sustained severe injury to his com crop allegedly as the result of his use of Dual BE, a herbicide manufactured by Ciba-Geigy, Inc. Alter sued Ciba-Geigy FAILURE TO FOLLOW ALL PRECAU TIONS ON THIS LABEL MAY RESULT IN POOR WEED CONTROL, CROP IN asserting theories of strict liability, negli JURY, OR ILLEGAL RESIDUES. gence, breach of warranty, misrepresenta The following warning is found in the label tion, and breach of a settlement contract. in a box at page six; The jury returned a general verdict of Precaution: Injury may occur following $100,410.51 in Alter's favor. Ciba-Geigy the use of Dual 8E under abnormally argues the Trial Court abused its discretion high soil moisture conditions during ear by refusing to bifurcate the trial, separat ly development of the crop. ing the breach of settlement contract claim from the remaining claims. Ciba-Geigy contends the failure to bifurcate resulted in inadmissible evidence of settlement negoti ations coming before the jury. We agree and reverse and remand on this point. Other issues which may arise on retrial will also be addressed. In early 1985, Ron Wulfkuhle and John McLeod, two Ciba-Geigy sales representa tives, met with several Arkansas County farmers to promote the use of Dual. Alter was present at the meeting. Alter testified the salesmen told him Dual would control weeds longer at a cheaper price than other herbicides. They also said Dual was safe Dual is a herbicide registered with the and would not injure a corn crop. Al Environmental Protection Agency (EPA), though Wulfkuhle knew that Dual could and it is widely used by farmers to control damage a corn crop if the crop received 838 weeds and grass. The herbicide was adver heavy moisture after planting, he did not tised as giving farmers longer control over tell Alter about that possibility. Hazards weeds and grass for a lower price than associated with Dual use were not men competitive products. It was "the longer tioned. Alter testified he generally read lasting grass herbicide." The advertising the labels accompanying herbicides, but he materials which were distributed to farm could not recall whether he read the pre V ers by Ciba-Geigy also stated, "Crop inju cautionary language on the Dual label. Al ry? You don't have to worry when you use ter did not read the Dual advertising mate- CIBA-GEIGY CORP. v. ALTER Cite u W4 S.WOd H i (Ark. 1992) rials, but purchased Dual in reliance on the ing an agreement was reached on yieie .oss representations made by the salesmen. He compensation. began planting his 997.8 acre corn crop on March 19th. A week and a half later Alter applied Dual to the crop. Midway through the Dual application, a heavy rain fell. According to Alter, he, McLeod, and Wulfkuhle agreed that compensation would be determined by utilizing a formula. Al ter would first obtain an average yield on Alter noticed severe injury to his corn crop in early May. The greatest injury occurred in the field referred to as Pittman # 3. Some corn was simply not coming up, and other plants looked twisted and "buggywhipped." The crops treated with Dual nearest the time of the rainfall were se verely injured, but those treated with Dual after the rainfall were not injured. Alter immediately reported the problem to his herbicide supplier, Martin Gilbert Gilbert then called Wulfkuhle who came to the Alter farm. Wulfkuhle determined the percentages of injury of the crop in the various fields. He noticed that some fields were 100% injured, and there were others with less than 2% crop injury. Wulfkuhle admitted the damage looked like it had been caused by Dual. Wulfkuhle told Al ter to replant his crop and that Ciba-Geigy would pay him $25.00 an acre for replant ing costs. Alter replanted 139 acres. his three best Helds: Pittman # 8, Alter # 3, and Alter # 15. The average yield would be obtained by using what was re ferred to as a "random plot method." Al ter harvested random plots in his three best fields and obtained an average yield for these plots. Alter testified that McLeod and Wulfkuhle told Alter that Ciba-Geigy would pay the difference be tween the average yield of the random plots and the balance of the corn crop. The difference would represent Alter's loss of yield resulting from the Dual application. McLeod refused to put the agreement in writing. Sometime after the July meeting, Alter put the formula into operation. Alter har vested the random plots on his best fields and arrived at an average yield of 159.829 bushels per acre. He subtracted the 105,199.630 bushels he had harvested and ar rived at a total loss figure of 54,357.746 bushels. Alter multiplied that figure by On May 30th, Alter's counsel sent a let the $2,558 Belling price per bushel to come ter to Ciba-Geigy's main office in Greens up with a dollar crop yield loss of $139,- boro, North Carolina. Counsel informed 047.11. He added replanting costs and con Ciba-Geigy of the injury to Alter's crop cluded his total loss was $142,522.11. Al and demanded compensation for loss of ter provided the figures to Wulfkuhle on crop yield resulting from the Dual applica October 1st tion, as well as replanting costs. CibaGeigy responded on June 28th. The re sponse indicated Alter's yield loss would be determined at harvest, and that Wulfkuhle would be checking on the harvest frequent ly. Ciba-Geigy agreed to pay Alter $25.00 an acre for replanting costs. Alter stated Wulfkuhle was actively in volved in the measuring and harvesting of the random plots. Wulfkuhle did not ob ject to the random plot method. Wulfkuhle testified that neither he nor McLeod made a settlement offer to Alter. He only told Alter that Ciba-Geigy would work with Wulfkuhle came to Alter's farm on sev him through the harvest McLeod did not eral occasions to check the harvest Alter recall meeting with Alter. Jim LeCroix, told Wulfkuhle he wanted Ciba-Geigy to who was present during the sales meeting, pay for his loss of crop yield resulting from stated Wulfkuhle told him Ciba-Geigy had the Dual application. He told Wulfkuhle to agreed on a formula to compensate Alter bring someone to the farm who had the for his loss of yield. LeCroix stated Alter authority to settle the matter. John also told him about Ciba-Geigy's agree McLeod, a district manager for Ciba-Gei ment Martin Gilbert, who sold the Dual to gy, came to the farm with Wulfkuhle in Alter, testified that McLeod and Wulfkuhle July. Alter testified that during this meet had agreed to compensate Alter based on 140 Ark. 834 SOUTH WESTERN REPORTER, 2d SERIES the formula. Alter stated that although no Dual use when high moisture conditions precise dollar figure was .agreed upon, occurred within seven days to a month everyone agreed on the formula to be used after the seed was planted. Dr. Cowlett in calculating yield loss. admitted a farmer could not determine On October 21, 1985, Alter's counsel whether it was safe to apply Dual after again wrote to Ciba-Geigy requesting a planting. The farmer will not know wheth settlement. The letter stated that Alter er there will be an abnormally high mois bad worked extensively with Wulfkuhle in ture condition within seven days to a month an effort to resolve the matter and had after planting. For this reason, Ciba-Gei provided Wulfkuhle with the necessary doc gy put the precautionary language on the umentation on yield loss. No response was label. Dr. Cowlett further stated that the received until October 29th when Ciba-Gei Dual label was approved by the EPA. gy offered Alter $31,036 in damages. Dr. Edward Higgins, an employee of the On November 22nd, Alter rejected Ciba- agricultural division at Ciba-Geigy, stated Geigy's offer and counter-offered to settle Dual was safe to use on corn. He stated for $142,522.11. In this letter, Alter indi Ciba-Geigy had conducted several studies cated that $142,522.11 represented the and tests on Dual. The tests showed that yield loss as determined by the formula he the type of crop damage Alter experienced and McLeod had agreed upon. The letter outlined the formula in detail. Ciba-Geigy replied with an offer of $45,000 which Alter rejected and countered at $110,000. This, his final counter-offer, was rejected by Ciba-Geigy on January 28, 1986, and Alter filed the action underlying this appeal. occurred in only one-tenth of one percent of cases. Dr. Higgins said the warnings on the Dual label were adequate, and they were like those commonly used in the her bicide industry. Placing the warnings in two places on the label would be burden some. The strict liability and negligence theo The jury returned a general verdict in ries were premised upon Ciba-Geigy's fail Alter's favor for $100,410.51 in compensa ure adequately to warn of risks associated tory damages and no punitive damages. with the use of Dual. Alter also requested $2 million dollars in punitive damages. Pri or to trial, Ciba-Geigy moved to bifurcate I. Bifurcation the breach of settlement contract claim [1,2] Ciba-Geigy moved to bifurcate from the other claims. The motion was the breach of settlement contract claim denied, and the case proceeded to trial. from the remaining strict liability, negli Harper Grimes, a former trouble shooter for Ciba-Geigy, testified that Dual caused the damage in Alter's field. He stated Dual frequently caused damage when the soil was extremely wet or when a substan tial rain occurred in a short period of time during or just after application. The crit ical point for Dual damage was from the gence, breach of warranty, and misrepre sentation claims. The basis of the motion was that allowing all claims to be tried together would result in the admission of evidence of settlement negotiations which would unfairly prejudice the defense of the claims for liability other than breach of the settlement contract. time of germination. Grimes did not be Arkansas R.Civ.P. 42(b) provides: lieve that the precautionary language on The court, in furtherance of convenience the Dual label adequately informed farm ers about the risks of rainfall. The warn ing should have been placed in two loca tions, and it should have described the con or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or ditions of danger more adequately. third-party claim, or of any separate is Dr. Everett Cowlett, director of technical sue or any number of claims, cross- services for Ciba-Geigy, stated there was a claims, counterclaims, third-party claims, 5<sn potential for crop injury resulting from or issues. CIBA-GEIGY CORP. v. ALTER Ai -141 C1U U 834 S .W M 13 (Ark. 1M2) Absent an abuse of discretion, the Trial "A" by producing evidence on claim "B" Court's decision regarding bifurcation will when that evidence is irrelevant to claim not be reversed. Transit Homes Inc. v. "A." See also Larsen v. Powell, 16 F.R.D. Bellamy, 282 Ark. 468, 671 S.W.2d 158 322 (D.Colo.1954) (if evidence would be rel (1984). The purpose of Rule 42(b) is to evant and material to one issue but improp further convenience, avoid delay and preju er and prejudicial with respect to another, dice, and serve the needs of justice. The separate consideration of each issue is indi primary concern is efficient judicial admin cated); 6 Moore's Federal Practice 42.- istration, as long as no party suffers preju 03(1) (1987) (a separate trial may be appro dice by the bifurcation. Hunter v. McDan priate where a defendant in a negligence iel Bros. Const Co., 274 Ark. 178, 623 action pleads a release, if the court believes S.W.2d 196 (1981). the jury may be prejudiced by faying the In addressing whether the Trial Court issues as to the existence and validity of abused its discretion by failing to bifurcate the release with the issues on the merits). the settlement contract claim, we must also examine Ark.R.Evid. 408. It provides, in part: Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valu able consideration in compromising or at tempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liabili ty for, invalidity of, or amount of the claim or any other claim. [3] Offers of compromise or settlement are clearly inadmissible to prove a party's [5] Although a combined trial of all claims might have been judicially economi cal, the prejudice to Ciba-Geigy resulting from the inadmissible evidence coming be fore the jury was substantial. In no area of the law are we disposed to promote the interests of judicial economy over a party's right to receive a fair trial. Because the only way to avoid unfair prejudice in these circumstances would have been to bifur cate the breach of settlement contract claim, the Trial Court abused its discretion in failing to do so. liability on the underlying claim. They may, however, be admissible if offered for another purpose. See, e.g., McKenzie v. If. Issues on retrial A. FIFRA preemption Tom Gibson Ford, Inc., 295 Ark. 826, 749 [6] Ciba-Geigy argues that the Federal S.W.2d 653 (1988); Elrod v. G & R Const Insecticide, Fungicide, and Rodenticide Act Co., 275 Ark. 151, 628 S.W.2d 17 (1982). (FIFRA), 7 U.S.C. 136-136y (1978), [4] There was an abundance of testimo ny about Ciba-Geigy's offers to settle Alter's claim. Alter testified in detail about the settlement negotiations. Alter's coun sel stated in closing argument that CibaGeigy would not have offered to settle had they not believed liability existed. Al though the testimony on settlement negoti ations might have been admissible as it related to the breach of settlement con tract, it was clearly inadmissible in a trial on the other claims against Ciba-Geigy. In Ismail v. Cohen, 706 F.Supp. 248 (S.D.N.Y.1989), the District Court dis preempts Alter's claims based on inade quate labeling. It is undisputed that Dual is a herbicide registered with the EPA un der FIFRA, and that the Dual label has met with EPA approval. The essence of Ciba-Geigy's argument is that, by impos ing certain labeling requirements on pesti cide manufacturers, Congress intended through FIFRA to preempt state common law tort claims based on the alleged inade quacy of the labels. We disagree and con clude state common law tort claims for inadequate labeling are neither expresslynor impliedly preempted by FIFRA. cussed the circumstances in which preju dice to a party may require separate trials 1. Preemption doctrine of certain issues. The paramount concern [7] The doctrine of federal preemption is prejudicing the jury with respect to claim is based upon the supremacy clause in Arti- 1 4 2 Ark. 834 SOUTH WESTERN REPORTER, 2d SERIES cle VI, cl. 2, of the United States Constitu submitted comply with the requirements of tion. Under the supremacy' clause, state the Act, it will perform its intended func laws that "interfere with, or are contrary tion without unreasonable adverse effects to the laws of congress, made in pursuance on the environment, and when used in ac of the constitution'' are invalid. Gibbons v. cordance with widespread and commonly Ogden, 22 U.S. (9 Wheat.) 1, 211, 6 L.Ed. 23 recognized practice it will not generally (1824). Congressional intent to supplant cause unreasonable adverse effects on the state authority in a particular field may be environment 7 U.S.C. 136a(c)(5). "Un express. Jones v. Rath Peeking Co., 430 reasonable adverse effects on the environ U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 ment'' is defined as "any unreasonable risk (1977). No case has held that Congress to man or the environment, taking into through FIFRA has expressly preempted account the economic, social, and environ state common law tort claims. Absent ex mental costs and benefits of the use of the press preemptive language, congressional pesticide." 7 U.S.C. 186(bb). intent to supersede state law may be im As part of the registration statement, a plied. copy of the pesticide's label is submitted to [8] Implied preemption can occur in the the EPA for approval. 7 U.S.C. following circumstances: (1) when the 136a(c)(l)(C). To obtain EPA approval, scope of federal regulation is so pervasive the manufacturer must comply with the as to make reasonable the inference that EPA Labeling Requirements for Pesticides Congress left no room for the state to act, and Devices found in 40 C.F.R. 156.10 (2) when the state and federal law actually (1991). One requirement is that the pesti conflict, (3) when compliance with state and federal law is physically impossible, (4) when the state law stands as an obstacle to the accomplishment of the full objectives of Congress. See, e.g., Florida Lime & Avo cado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct 1210, 10 L.Ed.2d 248 (1963); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). [9,10) We begin with the assumption that the historic police powers of the states are not to be superseded by a federal act unless that is the clear and manifest pur pose of Congress. Rice v. Santa Fe Eleva tor Corp., supra, at 230, 67 S.Ct. at 1152. The burden is on the moving party to prove that Congress intended to preempt state law. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). cide label provide the consumer with warn ings or precautionary statements. 156.10(a)(l)(vii). The warnings must be "clear ly legible to a person with normal vision and must be placed with such conspicuous ness and expressed in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use." 156.10(a)(2). The manufacturer submits its draft label to the EPA for approval. A manufacturer of some toxic pesticides is required to in clude "signal words" on the front panel of the label. For example, a manufacturer of a pesticide classified in Toxcicity Category I must include the signal word "Danger" on the front panel. 156.10(h)(l)(i)(A). When an environmental hazard exists from the pesticide, precautionary language stat ing the nature of the hazard and the appro 2. FIFRA requirements priate precautions to avoid potential acci All pesticides, fungicides, and rodenti- dent, injury, or damage is required. cides must be registered with the EPA 156.10(h)(2)(H). before they can be sold in interstate com In enacting FIFRA, Congress expressly merce. 7 U.S.C. 136a. FIFRA directs delineated the extent to which states could the EPA Administrator to register a pesti regulate pesticides. Section 136v provides cide when its composition is such as to in part: warrant the proposed claims for it, its la (a) In general. A State may regulate beling and other material required to be the sale or use of any federally reg- 839 D&Z CIBA-GEIGY COUP. v. ALTER Ark. 143 Cite u 834 S.WJd 134 (Ark. 1392) istered pesticide or device in the State, ordering changes in EPA approved labels. but only if and to the extent the regula- Compliance with federal and state law was . tion does not permit any sale or use not impossible because a manufacturer prohibited by this subchapter. could either continue to use the EPA ap (b) Uniformity. Such State shall not im- proved label and pay damages or petition ; pose or continue in effect any require- the EPA to allow the label to be made more ments for labeling or packaging in addi- comprehensive. State damage actions did . tion to or different from those required not stand as an obstacle to the accomplish under this subchapter. ment of FIFRA's purposes. In some cir PIFRA prohibits a state from imposing through statute or regulation different or additional requirements on pesticide label ing. The question we must answer, how ever, is whether a state tort claim based on inadequate labeling is also prohibited by cumstances, tort recovery could promote legitimate regulatory aims by exposing new dangers associated with pesticides. Successful actions may lead manufacturers to petition the EPA to allow more detailed labeling of their products. FIFRA. Federal district and appellate courts disagree on this issue, and it is an 4. The Papas case issue of first impression for a state appel Other federal appellate decisions have late court. disagreed with the Ferebee decision and concluded FIFRA preempts state tort S. The Ferebee case claims. In Papas v. Upjohn Co., 926 F.2d :: The first case to address the question 1019 (11th Cir.1991), Papas was injured presented was Ferebee v. Chevron Chemi from exposure to pesticides manufactured cal Co., 736 F.2d 1529 (D.C.Cir.1984). Fer by Upjohn. The three main claims were ebee contracted pulmonary fibrosis as a based on inadequate labeling of the pesti result of long-term skin exposure to para cides. The United States Court of Appeals quat, a herbicide manufactured by Chev for the Eleventh Circuit held that the EPA ron. Ferebee's estate brought suit on the had regelated almost every aspect of pesti ground that Chevron's label failed to warn cide labeling, thuB leaving no room for the adequately of the risks associated with pa states to supplement federal law by means raquat. Addressing the preemption issue, of state common law tort actions. The the District of Columbia Circuit first recog Court held that a jury determination that a nized that FIFRA and state tort law served pesticide's labeling was inadequate was in different purposes. The fact that the EPA direct conflict with the EPA's determina had determined a label adequate for pur tion that the labeling was sufficient to pro poses of FIFRA did not compel a jury to tect against health risks. The verdict find the label adequate for purposes of would require the manufacturer to change state tort law. The Court stated: its EPA approved label, thus destroying p; FIFRA aims at ensuring that, from a the uniformity of labeling that Congress tii cost-benefit point of view, paraquat as sought to achieve by enacting FIFRA. The labelled does not produce "unreasonable United States Court of Appeals for the i adverse effects on the environment" Tenth Circuit recently agreed with the Pa . State tort law, in contrast, may have pas case rationale in Arkansas-Platte & q. broader compensatory goals; conceiva- Gulf Partnership v. Dow Chemical Co., j-t. bly, a label may be inadequate under 959 F.2d 158 (10th Cir.1992). state law if that label, while sufficient ^ under a cost-benefit standard, none- 5. This case tt theless fails to warn against a significant a. Conflict between state risk. and federal laws jfe-The Court held that Congress did not Vie do not agree that the federal scheme implicitly preempt state damage actions but is so pervasive that states are left no room joerely precluded the states from directly for common law tort claims, even though a 144 Ark. 834 SOUTH WESTERN REPORTER, 2d SERIES state court judgment may have implica b. Uniformity tions affecting the uniformity of labeling The final preemption question is whether hazardous products. allowing state damage actions in cases Congress expressly recognized the states' continued right to regulate the use of pesticides in Section 136v(a). The fact that states are allowed to regulate the use of EPA label-approved pesticides indicates Congressional recognition of retention in the states of power to control the use of such pesticides by requiring that some re sulting injuries be compensated. Ferebee v. Chevron Chemical Co., supra. The adoption of Section 136v(a) demonstrates that the scheme created by FIFRA is not so pervasive or the federal interest so dom inant as to demonstrate an intent to preempt state tort claims. such as this may not be allowed because it would conflict with the congressional pur pose of promoting uniform labeling. The argument is that changing the label to con form to a jury verdict would destroy the uniformity that Congress and the EPA sought to achieve in FIFRA. It has been stated that, although broad in scope, the EPA requirements stop short of creating absolute uniformity in pesticide labels. As one court has observed, "the EPA require ments permit labeling variations even among products containing the same active ingredient Thus, to argue that an adverse jury award would threaten FIFRA's policy of uniform labeling belies the truth." Ri The more difficult question is whether a tort judgment based on inadequate labeling conflicts with the EPA determination that the label is sufficient. A conflict can occur to the extent compliance with federal and state law is impossible. The Ferebee ratio den v. ICI Americas, Inc., supra. The fact that manufacturers submit their own labels implies a duty to provide a label that gives adequate warnings about the risks associated with the product's use notwith standing the need for EPA approval. nale that a manufacturer can comply with The intent of Congress in enacting FI both federal and state law by continuing to FRA was to set minimum standards for use the EPA approved label and paying pesticide labeling. "Federal legislation has damages to successful plaintiffs has met traditionally occupied a limited role as the with sharp, justified criticism. See, e.g., floor of safe conduct; before transforming Fitzgerald v. Mallinckrodt, Inc., 681 such legislation into a ceiling on the ability F.Supp. 404 (E.D.Mich.1987) (a jury verdict of states to protect their citizens, a court effectively compels the manufacturer to al should wait for a clear statement of con ter the warning to conform to different gressional intent." Ferebee v. Chevron state law requirements). A manufacturer who has to pay damages under state law is obviously not complying with the state law Chemical Co., supra; Cox v. Velsicol Chemical Corp., 704 F.Supp. 85 (E.D.Pa. 1989). but is being held liable for not complying. In conclusion, Ciba-Geigy has failed to overcome the strong presumption that Con The Court in the Ferebee case was cor gress intended to leave intact a states abili rect, however, in concluding that after a ty to compensate its citizens for injuries jury determines a pesticide label to be inad resulting from pesticide use. Congress has equate the manufacturer can simply peti not occupied the field of pesticide regula tion the EPA to allow the label to be made tion so pervasively as to leave no room for more comprehensive. By doing so, the the states to act in the area of tort compen CO manufacturer would be in compliance with sation. There is no conflict between the .ffw state tort law and with EPA regulations. EPA determination that a label is adequate > See also Riden v. ICI Americas, Inc., 763 for purposes of FIFRA and a jury determi F.Supp. 1500 (W.D.Mo.1991) (a manufactur nation that a label is inadequate for pur er is not "compelled" to alter a label in the poses of state tort law. Although we do j same way that it is "compelled" to comply not entirely agree with the Ferebee ratio with a state law or regulation). nale, we agree with the conclusion that CIBA-GEIGY CORP. v. ALTER Ark. 145 Cite u 834 S .W Jd 13 (Ark. 1W2) FIFRA and state tort law serve different ed by the court Barger v. Farrell, 289 purposes. Ark. 252, 711 S.W.2d 773 (1986). FIFRA seeks to ensure that, from a cost- benefit standpoint, a pesticide does not im pose an unreasonable adverse effect on the environment. State tort law seeks to com pensate injured parties when a manufactur er fails to give a reasonable and adequate 1. Mutual assent ; [12] To have a valid contract, all terms should be definitely agreed upon. Madden v. Hart, 249 Ark. 1054, 463 S.W.2d 352 warning of foreseeable dangers in using (1971). It does not follow, however, that the product As the Court pointed out in the parties must share identical, subjective the Ferebee case, a label or warning may opinions as to the meanings of the terms. be inadequate under state tort law but We have held mutual assent can be based sufficient under the EPA cost-benefit stan on "objective indicators] or agreement" dard. Crain Indus., Inc. v. Cass, 305 Ark. 566, . Finally, we understand the desirability of 810 S.W.2d 910 (1991). See also Dziga v. uniformity in labeling hazardous products, Muradian Business Brokers, Inc., 28 Ark. and we do not doubt that Congress intend App. 241, 773 S.W.2d 106 (1989). ed to achieve uniform minimum labeling standards by passing the Act. We cannot, however, conceive of a plan by Congress to supplant the laws by which the states rec ompense, and to a degree protect, their citizens and others from injury resulting from the use of those products. Congress surely did not intend to put in place a [13] Three witnesses testified that sometime in July of 1985 Ciba-Geigy and Alter entered into a binding, mutual agree ment on yield loss compensation. In re liance upon this agreement, Alter changed his normal procedures and harvested ran dom plots on his three best fields. Wulf- system of uniformity in labeling so abso kuhle, an agent for Ciba-Geigy, helped Al lute as to subvert the tort laws of the ter measure and harvest these plots. This states. evidences objective indications of mutual assent Although Wulfkuhle later denied B. Breach of settlement contract the existence of the agreement, the jury Ciba-Geigy argues the Trial Court should have directed a verdict in its favor on the breach of settlement contract claim because the evidence did not show a mutual was clearly free to disbelieve his testimony in light of the other evidence. Hodges v. Jet Asphalt, 305 Ark. 466, 808 S.W.2d 775 (1991). agreement between the parties and the terms of the settlement contract were too indefinite to be enforced. Ciba-Geigy con tends the evidence showed only that the parties were engaging in settlement negoti ations and no mutual agreement on com pensation was reached. Ciba-Geigy contends the later settlement negotiations show the parties did not in tend to be bound in July. An examination of the evidence reveals the opposite conclu sion was equally plausible. Alter's subse quent "negotiations" can be interpreted as attempts to get Ciba-Geigy to perform un 111] When asked to review the denial of der the terms of the agreed upon formula. a motion for a directed verdict, we examine The negotiations standing alone do not con the evidence, along with all reasonable in clusively show a contract was not formed ferences deducible from it, in the light in July. Although the parties used the most favorable to the party against whom terms "offer" and "counter-offer" in their the motion is sought McWilliams v. Zed- negotiations, one need not necessarily con Utz, 294 Ark. 336, 742 S.W.2d 929 (1988).' clude Alter thereby conclusively demon Only when the proof of one party is so strated there was no contract Again, the clear, convincing, and irrefutable that no negotiations could well have been for the other conclusion could be reached, should purpose of settlement pursuant to the al the issue be taken from the jury and decid leged contract 146 Ark. 834 SOUTH WESTERN REPORTER, 2d SERIES Ciba-Geigy also argues the jury conclud ed no settlement contract existed because the verdict did not correspond to the amount Alter requested under the contract This issue may not arise upon retrial, but we note it has been held that "a verdict need not correspond in amount to the proof adduced by either party." Garrison Prop erties, Inc. v. Branton Constr. Co., 253 Ark. 441, 486 S.W.2d 672 (1972); Dickson v. Delhi Seed Co., 26 Ark.App. 83, 760 S.W.2d 382 (1988). or limit the warranty shall be construed wherever reasonable as consistent with each other; but negation or limitation is inoperative to the extent that such con struction is unreasonable. 4-2-316(1). Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable, or the limited remedy fads of its essential purpose. Ark.Code Ann. 4-2-719(2) and (3) (Repl.1991). 1. Disclaimer of warranties 2. Uncertainty [14] Terms of a contract are reasonably certain if they provide a basis for determin ing the existence of a breach and for giving an appropriate remedy. Restatement (Sec ond) of Contracts, 33. The law does not favor the destruction of contracts because of uncertainty. Shibley v. White, 193 Ark: 1048, 104 S.W.2d 461 (1937). [15] Alter testified in detail about the formula upon which he, Wulfkuhle, and McLeod agreed upon for determining yield loss compensation. Although no precise dollar figure was agreed upon, Alter stated that everyone agreed on the formula to be used in settling the case. From this formu la, Alter was able to arrive at a precise dollar figure for yield loss compensation. We do not decide the question, but we note a factual issue with respect to the implied warranties claim. The language on the Ciba-Geigy label could have been effec tive to disclaim all implied warranties un der 4-2-316(2). The disclaimer was in bold type on page five of the label and clearly mentioned merchantability. The Uniform Commercial Code defines "con spicuous" as being "written in that a rea sonable person against whom it is to oper ate ought to have noticed it. Language in the body of a form is conspicuous if it is in larger or other contrasting type or color." Ark.Code Ann. 4-1-201(10) (Repl.1991); Walker Ford Sales et aL v. Gaither, 265 Ark. 275, 578 S.W.2d 23 (1979). [16] The next question is whether Ciba- It is not difficult for us to determine from the formula the amount of damages Alter suffered. Geigy's express warranties and the dis claimer of all express warranties can be reasonably construed as consistent with each other under 4-2-316(1). If they C. Breach of warranty cannot, the disclaimer is ineffective. First Ciba-Geigy also asserts a directed ver dict should have been granted in its favor on the breach of express and implied war ranty claims because the Dual label effec tively disclaimed all warranties, and the label prohibited recovery for consequential damages in the form of lost profits. To exclude the. implied warranty of mer chantability, the disclaimer must mention merchantability and be conspicuous. Ark. Code Ann. 4-2-316(2) (Repl.1991). To ex clude the implied warranty of fitness, the to be examined is the nature of the express warranties Ciba-Geigy made to Alter. "Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affir mation or promise." Ark.Code Ann. 42-313(l)(a) (Repl.1991). An affirmation of the seller's opinion or commendation does not create an express warranty. Ark.Code Ann. 4-2-313(2) (Repl.1991). exclusion must be in writing and conspic [17-19] The advertising materials dis uous. 4-2-316(2). Words or conduct rel tributed to farmers by Ciba-Geigy con evant to the creation of an express warran tained an express warranty that a farmer ty and words or conduct tending to negate need not wony about crop injury when 841 CIBA-GEIGY CORP. v. ALTER Atk. 147 Cite u 834 S.WJd 134 (Ark. 1992) using Dual. Alter, however, did not recall ineffective. Walcott & Steele v. Carpen reading any of the advertising materials. ter, 246 Ark. 95, 436 S.W.2d 820 (1969). An affirmation of fact must be part of the basis of the parties bargain to be an ex '-`ll 2. Limitation o f remedies press warranty. See Currier v. Spencer, 299 Ark. 182, 772 S.W.2d 309 (1989). When a buyer is not influenced by the statement in making his or her purchase, the state ment is not a basis of the bargain. See generally American Law o f Warranties 2:7 (1991). Clearly, Alter was not influenced by the advertising materials when purchasing Dual, and hence they were not a basis of the bargain. [21] A seller of goods may limit the buyer's remedies for breach of warranty pursuant to Ark.Code Ann. $ 4-2-719(l)(a) (Bepl.1991).A limitation of remedies pro vision restricts the remedies available to the buyer once a breach of warranty is established, An otherwise valid limitation of remedy is avoided by the buyer if the limitation fails of its-essential purpose, Great Dane Trailer Sales, Inc. v. Pulp-, [20] There was testimony that Wulfkuhle and McLeod told Alter during the wood, 301 Ark. 436, 785 S.W.2d 13 (1990), or is unconscionable. 4-2-719(3). sales meeting that Dual was safe and The "failure of essential purpose" excep would not injure a corn crop. The question is whether this was a mere statement of opinion. In the misrepresentation context, we indicated "an opinion is merely an as sertion of one man's belief as to a fact" Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987), citing Prosser & Keeton on Torts (5th Ed.), Ch. 19 109 (1984). There are no set criteria to help ascertain opinion from affirmation of fact, and the determination must be made on a case-by case basis. Williston on Sales, 17-6 (4th ed. 1974). The evidence before the Trial Court sup ported the conclusion that Ciba-Geigy's statements that Dual was safe and would not injure a com crop were affirmations of fact and not mere opinions or commenda tion is most commonly applied when the buyer's remedy is exclusively limited to repair or replacement of defective goods, and the seller is unable to repair or replace the goods to conform to the warranty. See, e.g., Great Dane Trailer Sales, Inc. v. Pulpwood, supra; Walker Ford Sales et ' aL v. Gaither, supra. In this case, we are not dealing with a seller who failed to correct a defect after being asked to do so by the buyer, and the failure of essential purpose exception is not applicable. See Hill v. BASF Wyandotte Corp., 696 F.2d 287 (4th Cir.1982). Ciba-Geigy has not lim ited or substituted Alter's remedy to repair or replacement of the defective goods and has only limited its liability for consequen tial damages. tions. The jury had sufficient evidence to [22] While we cannot definitely resolve conclude the statements were not "sales the issue, some comment on whether the puffing" and constituted specific express limitation on consequential damages was warranties that the goods would conform unconscionable and unenforceable under to the affirmations. See, e.g., Pritchard v. 4-2-719(3) is appropriate. Unconsciona-. Liggett & Myers Tobacco Co., 295 F.2d 292 bility must be determined in light of gener (3rd Cir.1961) (if a manufacturer assures al commercial background, commercial the public that his product is safe when in needs in the trade or the particular case, - fact it is harmful, he can "no doubt" be the relative bargaining positions of the pa . held liable for breach of warranty); Ameri ties, and other circumstances existing when can Law of Warranties 2:57 (1991) (a the contract was made. Kohlenberger v .:. statement that a product is safe is general Tyson's Foods, 256 Ark. 584, 510 S.W.2d ly an absolute undertaking that it is so). 555 (1974). The commentary to 4-2-719 Again, we do not decide the issue, but we states "it is of the very essence of a sales note that if the evidence is the same on contract that at least minimum adequate retrial, a jury could conclude the disclaimer remedies be available." 148 Ark. 834 SOUTH WESTERN REPORTER, 2d SERIES In Dessert Seed Co. v.Drew Farmers Supply, 248 Ark. 858, 454 S.W.2d 307 (1970), we held a limitation of liability clause unreasonable, unconscionable, and against public policy when negligence of the seller was clearly established, and the buyer was unable to discover the defect in the goods. See also Latimer v. William Mueller & Son, Inc., 149 Mich.App. 620, 386 N.W.2d 618 (1986) (limitation of reme dy unconscionable when the defect could not be discovered); Majors v. Kalo Labora tories, Inc., 407 F.Supp. 20 (N.D.Ala.1975) (limitation of remedy unconscionable when a latent defect is involved). Because other evidence might be presented on this issue on retrial, we cannot pass on the unconscionability question on this appeal. Kohlenberger v. Tyson's Foods, supra. rianna Fed. S & L Assn., 267 Ark. 164, 589 S.W.2d 577 (1979). In this case, Alter's damages from the use of Dual were not capable of exact determination until har vest The Trial Court's award of prejudg ment interest was only for damages ac crued after Alter provided Ciba-Geigy with all necessary harvest figures. At that time, damages were capable of exact deter mination, and the prejudgment interest award was not error. Reversed and remanded. NUMBER SYSTEM> D. Punitive damages 309 Ark. 491 [23] Ciba-Geigy argues that, although Lois MONTGOMERY and Bill no liability for punitive damages was im Montgomery, Appellants, posed, the issue of punitive damages and evidence of financial condition should not v.......................... have been submitted to the jury. Ciba- Dr. R.C. BUTLER, Appellee. Geigy fails to mention that the jury was instructed on the tort of deceit. Although No. 91-100. we do not know the basis of the general Supreme Court of Arkansas. verdict in this case, punitive damages are available in cases of misrepresentation or June 1, 1992. deceit. Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992); Thomas Auto Co. v. Craft, 297 Ark. 492, 763 S.W.2d 651 (1989). If there is substantial evidence to show deliberate misrepresentation or deceit the issue of punitive damages may be sub mitted to the jury. Stein v. Lukas,, supra. Patient and spouse brought medical malpractice action against physician for his alleged negligence in failing to diagnose that patient suffered from Crohn's disease. The Circuit Court, Jefferson County, Randall Williams, J., entered judgment on E. Prejudgment interest jury verdict in favor of physician, and pa CO [24,25] Ciba-Geigy's final point is that the Trial Court erred by awarding Alter prejudgment interest because the amount of damages was not ascertainable at the time of injury. The Trial Court awarded Alter prejudgment interest at the rate of six percent beginning on November 22, tient and spouse appealed. The Supreme Court, Holt, CJ., held that; (1) surgeons were properly permitted to testify as de fense experts regarding treatment of Crohn's disease, and (2) other claims were not preserved for appellate review or in volved errors that were not prejudicial 1985, through March 19, 1991. In cases Affirmed. i'O where damages cannot be ascertained at the time of the loss, prejudgment interest should not be allowed. The damages must 1. Appeal and Error $=>757(1) be capable of exact determination as to Appellants' appendix was deficient for time of accrual and amount. Lovell v. Ma- its failure to include any pleadings, verdict, hes~Q MONTGOMERY v. BUTLER Ark. 1 4 9 Cite u 834 S.W Jd 148 (Ark. 1991) notice of appeal, or any posttrial motions. 7. Appeal and Error =>201(2) Sup.Ct.Rules, Rule 9(d). : Claim that trial court made inappropri 2. Appeal and Error <766 ate comment on testimony was not pre Appeal would be decided on merits de* spite appellants' filing defective appendix, served for appeal, where appellants failed to make objection during trial. where briefs and appendices presented suf 8. Appeal and Error =1048(6) ficient material parts as were necessary for understanding of questions at issue and for decision on merits. Sup.CtRules, Rule 9(d). Appellants were not prejudiced by trial court's sustaining objection to cross-exami nation of expert regarding medical study, where appellants in fact subsequently 3. Appeal and Error =>766 made extensive use of study in their exami Claim that appellee presented inadmis nation of appellee's witnesses. sible and prejudicial evidence warranting mistrial would not be decided on merits, where evidence at issue, two defense exhib its, was not in appellants' appendix, and only reference relating to exhibits set forth in appellants' brief did not provide exact nature of documents or their contents. 9. Appeal and Error =204(7) Claim that trial court applied incorrect legal standard regarding form of opinion expressed by expert medical witness could not be considered on appeal due to appel lees' failure to object in trial court Sup.Ct.Rules, Rule 9(d). 4. Evidence =512 Surgeons were properly permitted to testify as defense experts in medical mal practice action concerning treatment of Crohn's disease by medication as distin guished from treatment by surgery; sur geons were qualified to discuss Crohn's disease, their testimony aided jury in understanding evidence, and jury was free to weigh testimony based upon particular qualifications of each individual surgeon. 6. Trial =133.6(4) Patient and her spouse were not preju diced in medical malpractice action by phy sician's counsel's use of phrase "guilty of medical malpractice" during cross-examina tion of defense expert, where trial court properly instructed jury on appropriate standard of negligence of medical profes sional and further charged jury that it should not consider any rule of law not contained in instructions. AMI 101, 1501. 6. Appeal and Error e=204(7) -4 Claim that trial court erred in requir ing expert's subsequent report, in addition to his initial report, to be used for crossexamination of expert, since initial report Waa used in attempt to impeach or test tesis for expert's opinions, could not be Raised for first time on appeal.. Phillip J. Duncan, Little Rock, for appel lants. Colleen M. Barger, R.T. Beard, III, Little. Rock, for appellee. HOLT, Chief Justice. This is an appeal from a jury verdict in favor of the appellee, Dr. R.C. Butler, on a claim of medical malpractice against him by the appellants, Lois and Bill Montgom ery. The underlying facts show that Mrs. Montgomery was referred to Dr. Butler, a gastroenterologist, by her family physician, Dr. Howard R. Harris, for tests and treat ment of her complaints of recurrent stom ach pains, nausea, and diarrhea, including evaluation for possible Crohn's disease. In February 1987 Dr. Butler performed a colo noscopy, in which he found no evidence of Crohn's disease, and instituted treatment for inflammatory bowel disease. In June 1987, Mrs. Montgomery entered Baptist Medical Center where another gastroenter ologist referred by Dr. Harris, Dr. Bill Morton, performed tests that revealed the presence of Crohn's disease. Dr. Morton treated Mrs. Montgomery for six weeks, and she showed temporary signs of improvement In late July 1987, how- 620 825 FEDERAL REPORTER, 2d SERIES charges were pending at the time of the Rule 11 hearing; the defendant was charged only with a misdemeanor offense. Although we can perceive a potential for prosecutorial overreaching in this case, Santiago's finality interests--being much weaker than Brown's--do not implicate the Double Jeopardy Clause. The mere accept ance of a guilty plea does not carry the same expectation of finality and tranquility that comes with a jury's verdict or with an entry of judgment and sentence as in Brown. Cf Ricketts v. Adamson, -- U.S. --- , 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987) (assumes that jeopardy at least attaches when the defendant was sentenced on his guilty plea to a lesser included offense). Ann M. PALMER, as Administratrix of the Estate of Joseph C. Palmer, and Ann M. Palmer and Daphne S. Palmer Plaintiffs, Appellees, > v. ' ` LIGGETT GROUP, INC., and Liggett & Myers Tobacco Co., Inc., Defendants,' ' Appellants. , No. 86-1525. . United States Court of'Appeals, First Circuit. , Heard Oct 9, 1986. Decided Aug. 25, 1987. We hold that jeopardy did not attach when the district court accepted the guilty plea to the lesser included offense and then rejected the plea without having imposed sentence and entered judgment Cf. Unit ed States v. Snchez, 609 F.2d 761 (5th Cir.1980) (stating that jeopardy did not at tach when the court conditionally accepted the guilty plea). Certainly in this case, in which the judge initially accepted the guilty plea but then rejected it within the same proceeding, defendant was not placed in jeopardy in any meaningful sense. Jeopar dy first and only attached when the jury was empaneled and sworn in the felony case. See Serfass, 420 U.S. at 388, 95 S.Ct. at 1062. This was a single prosecution case. Accordingly, the Double Jeopardy Clause did not prohibit the United States from continuing its prosecution of Santiago on the charges of obstruction of correspon dence and theft of mail matter. For the reasons articulated in Johnson, supra, we also reject the collateral estoppel conten tion because there can be no "findings of fact" at a Rule 11 hearing. Affirmed. .. Suit was brought against cigarette manufacturers and distributors claiming that they were negligent in failing to pro-, vide adequate warnings about harmful health effects of cigarette smoking and that negligence proximately caused death of smoker. The United States District Court for the District of Massachusetts, 633 F.Supp. 1171, A. David Mazzone, J., denied motion to dismiss, and manufactur ers and distributors appealed. The Court of Appeals, John R. Brown, Senior Circuit Judge, held that suit for damages against cigarette manufacturers and distributors on common-law theory of inadequate warn ings about harmful health effects of ciga rette smoking would excessively disrupt balance of purpose between health protec tion and trade regulation set by Congress under the Federal Cigarette Labeling and Advertising Act, and thus is preempted. \ Reversed and remanded. . 1. States <8=18.3 Gist of "preemption" is whether Con gress (expressly) did or (impliedly) meant to displace state law or Btate law concepts in enacting federal law.. . 2. States =18.5, 18.7 In determining whether state law suit is preempted by federal law, instead of. CO attempting to fit federal law into some precast mold of "impossibility" or "frustra- GO i PALMER v. LIGGETT GROUP, INC. 621 Cite 8 2 5 F-2d 20 (U tC ir. 1987) tibn," courts look to effect suit will have on liamson Tobacco Corp. and Lorillard, Inc., federal scheme set up by Congress; if amici curiae. state law disturbs too much the congressionally declared scheme, whether denom inated as "occupying the field" or "actually conflicting with federal law," it will be displaced through force of preemption. Richard P. Campbell, John A.K. Grunert, Timothy Wilton, Campbell and Associates, Professional Corp., Boston, Mass., and Wil liam H. Crabtree, Knoxville, Tenn.,': on brief, for Product Liability Advisory Coun 3. S ta te s @=>18.3 cil, Inc. and Motor Vehicle Manufacturers For state law to be preempted by fed Ass'n of the U.S., Inc., amicus curiae. eral law, harm of state law on federal ' Robert S. Potters with whom Daniel A. scheme should be actual, not potential. Shapiro and Nix & Potters, Boston, Mass., were on brief, for appellees. 4. P ro d u c ts L ia b ility =59 . S ta te s <fc=18.65 , Suit for damages against cigarette manufacturers and distributors on com mon-law theory of inadequate warnings about harmful health effects of cigarette smoking would excessively disrupt balance, of purpose between health protection and trade regulation set by Congress under the Alan.B. Morrison with whom Cornish F. Hitchcock, William B. Schultz, Matthew L.' Meyers, Washington, D.C., and Scott D. Ballin were on brief, for American Cancer Society, ' American Heart Association, American Lung . Association, AmericanPublic Health Association, and Public Citi zen, amici curiae. Federal Cigarette Labeling and Advertising Act, and thus is preempted, where warning given by manufacturers and distributors complies with the Act. Federal Cigarette Before BOWNES, Circuit Judge, BROWN," Senior Circuit Judge, and TORRUELLA, Circuit Judge. Labeling and Advertising Act, 2 et seq., JOHN R. BROWN, Senior Circuit Judge. 2, 4, S, as amended, 15 U.S.C.A. 1331 et seq., 1333, 1334. This interlocutory appeal presents one highly disputed issue: whether the Federal 5. C o n s titu tio n a l L a w <S=321 There is no constitutional requirement that federal law cutting off state remedies either duplicate recovery at common law or provide reasonable substitute remedy. Cigarette Labeling and Advertising Act, 15 U.S.C. 1331 et aeq. (the Act), preempts the Palmers' smoking and health related claims that challenge either the adequacy . of the federal warning on cigarette pack ages or the propriety of Liggett's advertis ing and promotion of cigarettes. In. defer Donald J. Cohn with whom Webster & ence to the congressional declaration that Sheffield, New York City, Samuel Adams, (i) cigarettes be labeled uniformly and (ii) a Joseph J. Leghorn, Warner & Stackpole, balance be struck between the priority giv Boston, Mass., and James V. Kearney, New en to tobacco commerce and to our national York City, were on brief, for appellants. health policy, we hold that the Act does- Paul M. Bator, Chicago, 111., with whom preempt the Palmers' state law claims, and; Kathryn A. Oberly, Washington, D.C., reverse the decision of the District Court Mayer, Brown & Platt, Chicago, III., Mar shall Simonds, Goodwin, Procter & Hoar, A Saga of Cigarette Smoking Boston, Mass., Arnold & Porter, Washing Because the certified issue, before us is ton, D.C., Shook, Hardy & Bacon, Kansas on appeal from a motion to dismiss, we are : City, Mo., and Jones, Day, Reavis & Pogue, limited to viewing the facts of the case only Washington, D.C., were on brief, for Philip as alleged in the pleadings, interrogatory Morris, Inc., RJ. Reynolds Tobacco Co., answers, and pre-trial submissions of the The American Tobacco Co., Brown & Wil- parties. *Of the Fifth Circuit, sitting by designation. 622 825 FEDERAL REPORTER, 2d SERIES Joseph C. Palmer died on August 26, 1980, at the age of 49, allegedly from lung cancer. The Palmers allege that Palmer smoked between three and four packs of Liggett's cigarettes per day until his death. On August 19, .1983, Ann M. Palmer, individually and as administrator of the estate of her late husband, and her motherin-law, Daphne S. Palmer, filed this diversi ty action in the District Court. In their amended complaint, the Palmers contended that liability should be imposed on Liggett because of its failure to warn adequately of the health consequences of cigarette smok ing. The Palmers asserted causes of ac tion for common law negligence, breach of warranty, under Mass.Gen.Laws, c. 106, 2-314 et seq., and violations of the Mas sachusetts Consumer Protection Act, Mass. Gen.Laws c. 93A. At bottom, the Palmers complained that Liggett negligently gave inadequate warnings about the dangers of cigarette smoking and that this negligence proximately caused Palmer's death. In response, Liggett filed a motion to dismiss all inadequate warning claims on the ground that they were preempted by the Act. After a thorough review of the record, Judge Mazzone denied Liggett's motion to dismiss. The court concluded that "Congress [could not have] meant, by its silence on the issue of common law claim preemption, to do away with all means of obtaining compensation for those hurt by inadequate cigarette warnings in advertising." Palmer v. Liggett Group, Inc., 633 F.Supp. 1171, 1173 (D.Mass.1986). The District Court also relied heavily on the analysis contained in Judge Sarokin's opinion in the District Court decision of Cipollone v. Liggett Group, Inc., 593 F.Supp. 1146 (D.NJ.1984), since reversed, 789 F.2d 181 (3d Cir.1986), cert denied, -- U.S. -----, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987). Because Judge Mazzone found the pre emption issue to involve "a controlling question of law," 28 U.S.C. 1292(b), he certified sua sponte this issue for interloc utory appeal,, which we have accepted. Upon application by Liggett to this court, the proceedings below have.been stayed while this limited appeal comes to us. ;j The Act .The District Court, the defendants, and the plaintiffs agree that the issue of the Act's preemptive force controls the disposi tion of virtually the entire case. If the Labeling Act is found to preempt state law actions, either expressly or impliedly, the Palmers lose. If Congress did not intend for the Act to be so preemptive, Liggett loses the appeal. The line thus drawn, we proceed now to a discussion of how Con gress constructed the Labeling Act. In 1964, the Surgeon General released the now famous "Smoking and Health: Re-' port of the Advisory Committee to the Sur-' geon General." That initial report was one of the first official, scientifically approved statements linking cigarette . smoking to. lung cancer, bronchitis, and emphysema. The public response was immediate and vocal; clearly, some form of governmental action was imminent In a rush to protect and inform its citi zens, several states proposed and adopted mandatory warning labels for cigarette packages to be sold in their individual' states.1 Given the potential maze of con flicting state regulations, Congress stepped in in 1965 to set up a uniform, nationally consistent system of warning labels for cigarettes. Further, it did so with the ex press intention of striking a balance be tween its concern for the national health policy of smoking education and its protec tion of the trade and commerce aspects of the tobacco industry.1 After much internal and external debate, with classic confrontations between North and South, rural and urban states, together 1. For example, the New York state legislature adopted the following label In June 1965: "WARNING: Excessive Use Is Dangerous To Health." Laws of New York 1965, Ch. 470. co hU 4a. 2. At the time the Act was originally adopted, tobacco ranked third in agricultural export, products, fifth among all cash crops, and sup ported some 750,000 fanning families. See 111 Cong.Rec. 13,950, 13,898 (1965) (remarks of Sens. Ervin and Bass). PALMER v. LIGGETT GROUP, INC. CUe u 825 F J d 20 ( l i t Clr. 1987) 623 with vigorous lobbying by all forms o f in dress the preemption issue raised here. terested groups and businesses, the mem First is 1331, the A ct's declaration o f bers of Congress negotiated a hard-fought policy and purpose. . compromise with the passage of the Feder al Cigarette Labeling and Advertising Act, Pub.L. No. 89-92, 79 S ta t 282 (1965), codi fied as amended by the Public Health Ciga rette Smoking Act of 1969, Pub.L. No. 91222, 84 Stat. 87 (1970) at 15 U.S.C. 1331 et seq. In 1984, Congress further amended the Act by the Comprehensive Smoking Education Act, Pub.L. No. 98-474, 98 S ta t 2200 (1984).' This case, like so many we are called on' to decide, turns on a question of statutory construction and interpretation. It is by definition a frustrating task, for if the law's meaning is truly "plain" enough or its effect clear-cut enough, there is no need for us to pronounce what we discern its meaning or effect to be. In cases such as this one, however, we must marshal sup port from the ready arsenal of the canons of statutory construction to declare soberly It is the policy of the Congress, and the purpose of this chapter, to establish a ;. comprehensive Federal program to deal ` with cigarette labeling and advertising ` -with respect to any relationship between smoking and health, whereby-- ;. .(1) The public may be adequately informed that cigarette smoking may be hazardous to health by inclusion of a warning to that effect on each package u of cigarettes; and (2) commerce and the national economy may be (A) protected to the maximum extent consistent with this declared . policy and (B) not impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health. . 15 U.S.C. 1831.4 the deconstructed meaning of the omission Second, $ 1333 prescribes the exact label' by Congress o f a savings clause, "because- of w arning to be placed on each package of Congress knew how to provide a savings cigarettes.' The language imposing this' clause when it wanted to." We are expect mandatory warning is as follows: ed to "discover" the true congressional in tent of the phrase "No requirement shall be imposed under State law," yet w e are limited to contradictory, even self-serving language from the statu te's legislative his tory to discern that intent It shall be unlawful for any person to manufacture, import, or package for sale or distribution within the United States any cigarettes the package of which fails to bear the follow ing statem en t "Warn ing: The Surgeon General H as Deter-' Nevertheless, that is the task assigned to mined That Cigarette Smoking Is Dan-. us, and having acknowledged the inherent gerous to Your Health." Such state-, ly unsatisfying nature o f i t we come now ment shall be located in a conspicuous to the actual words of the law. In some place on every cigarette package and ways, the A ct -is more straightforward in shall appear in conspicuous and legible declaring its intent and effect than are type in contrast by typography, layout, many other analogous regulatory schemes. or color with other printed matter on the The Act contains three sections that ad- package. A The amendments enacted in 1984 took effect 5. The very fact that Congress mandated the pre after Joseph Palmer's death, and therefore are cise wording required in a label, rather than not relevant in this case. . m erely establishing the ``minimum require 4. Subparagraph (1) o f 1331 w as amended in 1984 to read: (1) the public may be adequately informed about any adverse health effects o f cigarette .1. smoking by inclusion of warning notices on -. each package of cigarenes and in each adver; tisement of cigarettes; and . .. 15 U.S.C. $ 1331(1) (West Supp.1987). ments" standard often found in labeling acts distinguishes the Act from cases relied upon by the court and the Palmers as persuasive authori ty. See, e.g,, F erebee v. C h ev ro n C h em ic a l Co., 736 F.2d 1529 (D.C.Cir.) (involving FIFRA mini m um labeling standards), c e r t d en ied , 469 U.S. 1062, 105 S.CU 545, 83 L Ed.2d 432 (1984), and discussion in fr a at note 13. 624 825 FEDERAL REPORTER, 2d SERIES 15 U.S.C. 1333. Finally, 1334 sets out the section m ost relevant to our preemption analysis-- the preemption section: (a) No statem ent relating to smoking and health, other than the statem ent required by section 1333 o f this title, shall be required on any cigarette package. (b) No requirement or prohibition based on smoking and health shall be im posed under State law with respect to the advertising or promotion of any cigarettes the packages o f which are labeled in conformity with the provi sions of this chapter. 15 U.S.C. 1334.7 The remainder of the Act includes sec tions that prohibit radio and television ad vertising ( 1335), require manufacturers to report cigarette ingredients to the Secre tary of the Department of Health and Hu man Services ( 1335a), and require the HHS Secretary to report to Congress annu ally about developments .in, "the current information in the health consequences of smoking" ( 1337). Further, 1337 also requires the Federal Trade Commission to report to Congress regarding its opinions on the effectiveness of cigarette labeling and the impact of advertising and market ing, along with any recommendations the FTC may desire to make. Sections 1338 and 1339 confer jurisdiction on the District Courts to enjoin violations of the Act, and provide for criminal penalties o f not more than $1 0 ,0 0 0 . 6. When Congress originally enacted the Act in 1965, and w hen the link to the hazards of smok ing was less firmly established, the warning was a' more moderate statement: "Caution: Ciga rette Sm oking May Be Hazardous to Your _ Health." Pub.L. No. 89-92, $ 4, 79 Stat. 282, 30 283 (1965). Ik In 1984, Congress extensively revised the la beling'requirements that w ere in force under / I the 1969 amendments. Although the 1969, not 1984, warnings are controlling in this case, the Palmers have relied upon the m ost recent amendments as evidence of the inadequacy of the prior warnings. For Information purposes, 3 we set them out below: [1] SURGEON GENERAL'S WARNING: ( Sm oking Causes Lung Cancer,. Heart Disease, Emphysema, And May Complicate Pregnancy. The P reem inence o f P reem ption Having set out the relevant portions of the Act, we now consider the preemptive force that it brings to bear on the Palmers' state-based tort claim. The different forms of preemption are usually summarized by neat citations to familiar Supreme Court authority. Al though we are somewhat wary that these ready citations list, but do not describe, and catalog, but do not define, any real distinc tions among the various types of preemp tion, we nevertheless offer the following recitation from the Court in L o u is ia n a P u b lic S e r v ic e C o m m 'n v. F e d e r a l C o m m u n i c a ti o n s C o m m 'n , 476 U.S. 355, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986). The Supremacy Clause of Article VI of the Constitution provides Congress with . the power to pre-empt state law. Pre emption occurs when Congress, in enact.. ing a federal statute, expresses a clear .intent to pre-empt state law, J o n e s v. R a th P a c k in g Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977), when there is outright or actual conflict between fed eral and state law, e.g., F ree v. B la n d ,369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962), where compliance with both feder-. .al and state law is in effect ph ysically impossible, F lo r id a L im e & A v o c a d o G row ers, In c. v. P a u l, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), where there is implicit in federal law a barrier to state regulation, S h a w v. D e lta A ir , L in e s, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983), where Congress [2] SURGEON GENERAL'S-WARNING: Quit- . - ting Smoking Now Greatly Reduces Serious . Risks to Your Health. , [3] SURGEON GENERAL'S WARNING Smoking By Pregnant Women May Result in Fetal Injury, Premature Birth, And Low Birth Weight. [4] SURGEON GENERALS WARNING: Cig arette Smoke Contains Carbon Monoxide. 15 US.C. S 1333(a)(1) (West Supp.1987). 7. Section 1334(b) o f the original 1965 Act read as follows: No statement relating to smoking and health shall be required In the advertising o f any cigarettes the packages o f which are labeled In conformity w ith the provisions o f th is A ct PALMER v. LIGGETT GROUP, INC. Cite u 825 F J d 20 (le t Clr. 1987) 625 has legislated comprehensively, thus oc Judge Mazzone first discussed express cupying an entire field of regulation and preemption. Because that type of preemp leaving no room for the States to supple tion has been so strictly construed in the ment federal law, R ic e v. S a n ta F e E le v a to r C orp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947), or where the state law stands as an obstacle to the accom plishment and execution of the full objec tives of Congress. H in e s v. D avidow itz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941). past, and because of the strong presump tion against preemption, M a r y la n d v. L o u is ia n a , 451 U.S. 725, 746, 101 S.Ct. 2114, 2128, 68 L.Ed.2d 576, 595 (1981), it is un necessary to disturb the court's conclusion that there is no express preemption p r e se n t Because we have no hesitation in determining that the Act impliedly preempts (under whatever rubric) the Palmers' claim, w e need not overturn the The critical question in any pre-emption D istrict Court's view that the preemption analysis is always whether Congress in tended that federal regulation supersede state law. section of the Act does not e x p lic itly enough preempt state-based claims to be "expressly" preemptive. 476 U.S. a t ------ , 106 S.Ct. at 1898-99, 90 The parties have focused their express L.Ed.2d at 381-82. preemption arguments on vigorous debates The D istrict C ourt O pinion In its thoughtful and detailed scrutiny of this case, the District Court considered at length the reasoning in the three major opinions rendered to date in these cigarette products liability cases--the two C ip o llo n e decisions, 593 F.Supp. 1146 (D.NJ.1984) (Sarokin, J.), re v 'd , 789 F.2d 181 (3d Cir. 1986) (Hunter, J.), c e r t d e n ie d , -- U.S.' ------ , 107 S.Ct. 907, 93 L.Ed.2d 857 (1987), and R o ysd o n v. R.J. R e y n o ld s Tobacco over the significance of the fact that there is neither a clause explicitly preempting state claim s8 nor a "savings clause" ex pressly preserving them.8 Rather than wade into the bog of doublespeaking legis lative history to divine congressional intent from words n o t used, w e simply acknowl edge that the preemption section reads "no requirement . . . shall be imposed under State law," not "State-based tort claims are hereby preempted." 190 Co., 623 F.Supp. 1189 (E.D.Tenn.1985). The Third Circuit and R o y s d o n courts held that the Act preempted state law tort claims, while the District Court in C ipol lo n e held the claims were not preempted.- [1 -3 ] The opinion next discusses the subtypes of implied preemption. Although the District Court broke down implied pre emption into four categories--occupation of the field, conflict, impossibility, and frus A fter reviewing the basic approaches to tration of purpose, w e do not find such preemption analysis, the District Court con labels necessarily helpful, and certainly do sidered and rejected the argum ent that ei not deem them determinative in ascertain/, ther express or any of the form s o f implied m g preemption. Rather, the g ist of pre-. preemption were present in this case. We emption is whether Congress (expressly), reverse and hold that the A ct impliedly- did or (impliedly) meant to displace state., preempts the Palmers' claim. law or state law concepts in enacting the 8. See, e.g., Copyright Act o f 1976, 17 U .S.C .. 301(a); Employee Retirement Income Securi: ty Act o f 1974, 29 U.S.C. 1144(a) & (c)(1); Domestic Housing and International Recovery and Financial Stability Act, 12 U.S.C. 1715*17(d), 1715z-18(e). 9. See, e.g,, Copyright Act o f 1976, 17 U.S.C. S 301(b); Occupational Safety and Health Act of 1970, 29 U.S.C. 653(b)(4). 10. As part o f Its express preemption discussion, the court held that compensatory damages, could not act as extra-statutory "regulation," s o ; as to be expressly preempted. We need not; decide whether such damages constitute express, or Implied preemption. Rather, as w e discuss in fr a at 627-28, w e simply note here that, con-* trary to the District Court's conclusion, w e do view compensatory damages as potentially regu latory In nature. 626 825 FEDERAL REPORTER. 2d SERIES federal law. Thus, instead of attempting to fit the Act into some pre-cast mold of "impossibility?, or "frustration," we look to the e ffect the Palm ers' su it w ill11 have on the federal scheme set up by Congress. If the state law disturbs too much the congressionally declared scheme--w hether de nominated aa "occupying the field" or "ac tually conflicting with federal law"--it will be displaced through the force of preemp tion. In this case, Congress has eased our task of figuring out its intent by including both a statement of purpose and a preemption section. Because the language of the Act is straightforward and unambiguous, we need not resort to legislative history to determine congressional intent. "Reliance on legislative history in divining the intent of Congress is, as has often been observed, a step to be taken cautiously." S ee A m e r i c a n Tobacco Co. v. P a tte r s o n , 456 U.S. 63, 75, 102 S .C t 1534, 1540, 71 LEd.2d 748, 759 (1982); N e w E n g la n d P o w e r Co. v. N e w H a m p s h ir e , 455 U.S. 331, 342, 102 S.Ct. 1096, 1102, 71 L.Ed.2d 188, 197 (1982);' P ip e r v. C h ris-C ra ft In d u s tr ie s , 430 U.S. I, 26, 97 S.Ct. 926, 941, 51 L.Ed.2d 124, 143 (1977). poses of warning the public of the hazards of cigarette smoking and protecting the interests of national economy." C ipollone, 789 F.2d at 187. -: . [4] . It is these policies, and more impor tantly, the balance fixed between them that is our focus. The language o f 1331 even m easures the relative w eight of the poli cies: the federal warning should protect commerce "to the maximum extent" con sistent with its health policy. Thus, we consider now the effe c t of the introduction o f a state tort claim into this congressionally calibrated system . A s discussed earlier, Congress ran a hard-fought, bitterly parti san battle in striking the compromise that became ,the Act. It is inconceivable that Congress intended to have that carefully wrought balance o f national interests su perseded by the views of a single state, indeed, perhaps o f a single jury in a single state. Contrary to the District Court's view, we therefore hold that a suit for dam ages on a common law theory of inade quate warning--if the warning given com plies with the Act--disrupts excessively the balance of purpose se t by Congress, and is thus preempted. In adopting the Act, Congress explicitly announced a two-pronged purpose. It plainly sought to inform the public that "cigarette smoking may be hazardous to health by inclusion of a warning to that effect." The educational purpose, how ever, was tempered by a consideration that "commerce and the national economy . . . [be] protected to the maximum extent con sistent with this declared policy." Further, commerce was to be unimpeded by "di verse, nonuniform and confusing cigarette labeling" regulations. 15 U.S.C. 1331(1) & (2). Stated differently, in drafting the Act, Congress had two policies--health pro tection (through education) and trade pro tection--to implement, but only one pur pose: to strike a fair, effective balance between these two competing interests. The result is an Act that "represents a carefully drawn balance between the pur- To permit the interposition of state com mon law actions into a well-defined area of federal regulation would abrogate utterly the established scheme of health protection as tempered by trade protection. The Su premacy Clause of the Constitution, as en forced through the doctrine of preemption, prohibits this. The R em a in in g C ontentions H aving held that the Act impliedly preempts the Palmers' suit because it dis turbs the federally calibrated balance of national interests, we briefly address other issu es discussed by the District Court or raised by the Palmers on appeal. First, the Palmers argue, and the District Court agreed, that to prohibit such statebased tort suits would effectively--and wrongly--leave plaintiffs like the Palmers II. The harm of the state law on the federal scheme should be actual, not potential. See R ice v. N o r m a n W illia m s Co., 458 U.S. 654, 659, 102 S.Ct. 3294. 3298, 73 L.Ed.2d 1042, 1049-50 (1982). \ PALMER v. LIGGETT GROUP, INC. Cite i t 825 F J d 620 ( l i t Cir. 1987) 627 without any remedy for their injuries. Re- "statutory law " from imposing any "re iying on Justice White's statem ent in S i lk - quirement or prohibition" different from w o o d v. K err-M cG ee C orp., 464 U.S. 238, the A ct's w arning label. 15 U.S.C. 1334. 104 S.Ct. 615, 78 LEd.2d 443 (1984) that, I f a m anufacturer's warning that complies "it is difficult to believe that Congress with the A ct is found inadequate under a would, without comment, remove all means state tort theory, the damages awarded of judicial recourse for those injured by and verdict rendered against it can be illegal conduct," 464 U.S. at 251, 104 S .C t viewed as state regulation: the decision at 623, 78 L.Ed.2d at 454, the Palmers effectively compels the manufacturer to al argue that allowing the Act to preempt ter its warning to conform to different traditional state tort compensation, an area state law requirements as "promulgated" traditionally left to the states for regula by a jury's findings. tion, is an impermissible overreading o f the More than that, the practicalities o f mod A ct e m litigation would inevitably involve con [5] We reject this argument for several flict between the congressionally ordained reasons. F irst cigarette smoking, at least warning and the common law label argued initially, is a voluntary activity. In the for by th e plaintiffs. A trial court would cases relied on by the Palmers in which not merely submit the question of whether state remedies were not preempted, the victims had little or no choice in their par ticipation in the regulated fields. See, e.g., the warning w as adequate. Evidence pro and con would have to be offered, including specific examples of what sort of warning S ilk w o o d (nuclear energy development); reasonably w as called for, how it was to be U n ite d C o n s tr u c tio n W o r k e r s v. L a B u r - given, and the like. Following the close o f n u m C o n stru c tio n C orp., 347 U.S. 656, 74 evidence, the trial court would have to sub S.Ct. 833, 98 L.Ed. 1025 (1954) (employ m it the issu e to the jury. In a federal ment). Second, the Supreme Court has of court--as is this case-- the judge, either ten left parties without a remedy by find under a general charge or one on special ing state common law preempted. S ee interrogatories under F.R.Civ.P. 49(a), C hicago & N W T ra n sp . Co. v. K a lo B r ic k would have to submit the question of warn & T ile Co., 450 U.S. 311, 101 S.Ct. 1124, 67 ing with precision. This would be neces L.Ed.2d 258 (1981) (finding that the Inter sary so that a reviewing court could deter state Commerce Act preempts state com mine whether or not the warning fixed by mon law action for damages against a reg the jury conflicted with the statutory warn ulated railroad); F a r m e r s U n io n v. ing. This challenge to the federal warning W D A Y , 360 U.S. 525, 79 S.Ct. 1302, 3 label's sufficiency--and the confusion it L.Ed.2d 1407 (1959) (finding that the Feder would engender--surely contravenes the al Communications A ct preempts state libel Act's policy o f uniform labeling. claim againBt a radio station). There is no constitutional requirement that a federal law cutting off state remedies "either du plicate the recovery at common law or pro vide a reasonable substitute remedy." D u k e P o w e r Co. v. C a r o lin a E n v t l . S t u d y G roup, In c., 488 U.S. 69, 8 8 , 98 S.Ct. 2620, 2638, 57 L.Ed.2d 595, 620 (1978). The Palmers also contend, and the Dis trict Court agreed, that "the effect of com pensatory awards on defendants' behavior is indirect and not regulatory in nature." We reject this characterization. The District Court held that an award of damages "would have only an indirect ef fe ct on defendant's labeling and advertis ing practices." 633 F.Supp. at 1177. The Palmers disingenuously maintain that any monetary damages awarded would not compel a manufacturer to change its label for, after all, "the choice of how to react is left to the manufacturer." This "choice of reaction" seem s akin to the free choice of coming up for air after being underwater. Once a jury has found a label inadequate under state law, and the manufacturer lia The preemption clause of the Act ex ble for damages for negligently employing pressly prohibits "state law," not merely it, it is unthinkable that any manufacturer 628 825 FEDERAL REPORTER, 2d SERIES would not immediately take steps to mini mize its exposure to continued liability. The most obvious change it can take, of course, is to change its label. E ffecting such a change in the manufacturer's behav ior and imposing such additional warning requirements is the very action preempted by 1334 of the A c t Indeed, it arrogates to a single jury the regulatory power ex plicitly denied to all fifty states' legislative bodies. Further, the Supreme Court itself has long acknowledged this power. [R egulation can be as effectively e x e r t . ed through an award of damages as through some form of preventive relief. . The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and con trolling policy. S a n Diego Bldg. Trades C ouncil v. G ar m o n , 359 U.S. 236, 247, 79 S.C t 773, 780, 3 L.Ed.2d 775, 784 (1959). Thus, the regula tory effect of the Palmers' claim is direct, and must be preempted by the Act. In addition, given the substantial differ ences in subject matter, we dism iss as un persuasive the analogies made by the Palmers and the District Court to the S ilk w ood case. The District Court evidently believed that G a rm o n 's reasoning had been discredited by the Supreme Court's decision in S ilk w o o d --even though nothing in S ilk w o o d even remotely su g g ests that G a rm o n has been qualified or overruled, and even though the Court in S ilk w o o d stated that federal law will "preempt the recovery of damages based on state law '' whenever "imposition of a state standard in a damages action would frustrate the objectives of the federal law." 464 U.S. at 256, 104 S.Ct. at 626, 78 L.Ed.2d a t 457-58. First, the District Court did not even mention the fact that the Atomic Energy A ct of 1954, 42 U.S.C. 2011 e t seq., at issue in S ilk w o o d , contains no preemption provision whatever. Moreover, while the Atomic Energy Act has been read by the Supreme Court by implication to confer exclusive federal jurisdiction to regulate issues of nuclear safety, the Act also ex pressly reserves significant authority to the sta te s.12 :: 1 In contrast, the "comprehensive Federal program" established by the Act contains a sweeping preemption provision, and con spicuously fails to provide a n y role for the states in the area o f cigarette labeling and advertising. Further, the enactment and legislative history of the Atomic Energy Act, as amended by the Price-Anderson Act, Pub.L. No. 85-256, 71 Stat. 576, make clear Congress' explicit judgment that state common law damage actions for injuries caused by nuclear operations should be per mitted to continue. S e e S ilk w o o d , 464 U.S. at 251-56, 104 S.C t at 623-25, 78 KEd.2d at 454-57. For that reason, it was the starting place in S ilk w o o d , and common ground among all the parties (as well as among all the Justices of the Supreme Court), that state common law damage ac tions were n o t preempted; the only issue w as the much more refined question of whether p u n itiv e damages (as opposed to compensatory damages) were preempted. The Court's 5-4 decision-- that punitive damages were not preempted--was based on the unremarkable conclusion that such damages are part and parcel o f the "tradi tional state tort law" that Congress had decided to preserve within the AEA's regu latory scheme. Id. at 255, 104 S.Ct. at 625, 78 L.Ed.2d at 457. S ilk w o o d thus took for granted the an sw er to the issue that is the central contro versy here. It therefore sheds no light at all on the fundamental question in this case--whether state common law damage actions based on alleged failure to provide adequate warnings are permissible in the first instance.12 12. See, e.g,, 42 U.S.C. 2018 (AHA does not affect state authority with respect to generation, sale, or transmission of electric power through use of federally-licensed nuclear facilities); 42 U.S.C. 2021(b) (federal-state agreements au thorized so that states may assum e regulatory authority over certain nuclear materials); 42 U.S.C. S 202l(k ) (section does not affect state authority to regulate activities for purposes oth. er than protection against radiation hazards). 13. The only preemption case cited by the Dis trict Court w as Ferebee v. C h evro n C h em ic a l Co., 736 F.2d 1529 (D.C.Cir.), cert, d en ied , 469 U.S. 84 PASHMAN v. CHEMTEX, INC. 62 Cite as 825 F-2d 62 (2nd Clr. I87) Vl . . The L ast P u ff . Pratt, Circuit Judge, held that costs incurred .Accordingly, having dismissed the Palm ers' arguments against preemption as mer itless, and having determined the effects of state tort liability to be seriously disruptive to the congressionally calibrated balance of national interests, we hold the Palmers' state-based claim of inadequate warning to be preempted by the Act. The decision o f the District Court must be reversed, and remanded for proceedings consistent with this opinion. ; REVERSED AND REMANDED. by employer to purchase equity in paint plant that it sold were not "capital expenses," but could be deducted from revenues to determine net profits on sale o f plant and to determine compensation o f salesman un der employment agreement, which awarded 10% of pretax profits on all sale6, where purchase of equity share in project was necessary expense for employer to close deal and to obtain financing for i t Affirmed. . . Oakes, Circuit Judge, dissented in sep-' arate opinion. Howard B. PASHMAN, P la in tiff-A p p ella n t, v. CHEMTEX, INC., Defendant-Appellee. No. 1265, Docket 87-7240. United States Court of Appeals, Second Circuit. Argued June 18, 1987. Decided July 17, 1987. Salesman brought action against em ployer to obtain additional commission af ter sale price for paint plant was increased. The United States District Court for the Southern District of N ew York, 664 F.Supp.' 701, John Walker, Jr., J., granted summary judgment in favor of employer. Salesman appealed. The Court of Appeals, George C. 1. Master and Servant ^70(3) "Profits" within meaning of sales man's contract that awarded 10%of pretax profits on all sales, did not mean revenues. See publication Words and Phrases for otiier judicial constructions and . definitions. 2. M aster and' Servant =70(3) ' Costs incurred by employer to pur chase equity in paint plant that it sold were not "capital expenses," but could be de ducted from revenues to determine netr profits on sale o f plant and to determine compensation o f salesman under employ ment agreement, which awarded 10% of pretax profits on all sales, where purchase o f equity share in project w as necessary expense for employer to d o s e deal and to obtain financing for it See publication W ords and Phrases for other judicial constructions and definitions. Philip Estermah, N ew York City (Gideon J. Karlick, EBterman & Esterman, N ew York City, o f counsel), for plaintiff-appel lant. 1062, 105 S.Ct. 545, 83 L-Ed.2d 432 (1984), in which the court of appeals held that Maryland tort claim s were not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 e l seq. FIFRA, w hich applies to some 40,000 different herbicide and pesticide formulations, imposes an entirely dif ferent type of regulatory scheme from that es tablished under the Act. S ee 16 Env*t Rep. (BNA) 9 (May 3, 1985). Under FIFRA, each manufacturer drafts a warning label for each product for EPA approval. Thus, two manufac turers o f the same regulated product m ay use different labels o f their own choosing, provided only that they obtain prior EPA app roval.. Fur ther, the statute in Ferebee permits "states t o ' Impose more stringent constraints on the use o f EPA-approved pesticides than those Imposed by the EPA" indicating that Congress was indiffer ent to regulation of these products through state tort law. Ferebee, 736 F.2d at 1541. In con trast, the Act explicitly (I) applies to cigarettes only; (11) mandates the precise language o f t h e . label; and (111) prohibits any state from regulat ing any aspect of cigarette warnings. The analogy to Ferebee must fail. 84 704 FEDERAL SUPPLEMENT CO 00 hospitalize the defendant for treatm ent custody o f the Attorney General for a peri in a suitable facility-- od o f hospitalization pursuant to 18 U.S.C. (1) for such a reasonable period of 4241(d). time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the fore' seeable future he will attain the capacity to permit the trial to proceed; and (2) for an additional reasonable period of time until-- [2 ] 4. The defendant being found in com petent to stand trial, there remains the question of how properly to deal with the Government's Motion for Examination of Defendant to Determine Existence of In sanity, which is unopposed. While at first blush it might fair and efficient to order (A) his mental condition is so improved that the insanity examination be conducted that trial may proceed, if the court finds during the period that the defendant is that there is a substantial probability hospitalized under 18 U.S.C. 4241(d), a that within such additional period o f time number o f considerations argue against he will attain the capacity to permit the this disposition. trial to proceed; or (B) the pending charges against him are disposed of according to law; which ever is earlier. If, at the end of the time period specified, it is determined that the defendant's 1 mental condition has not so improved as to permit the trial to proceed, the defend ant is subject to the provisions of section 4246 [18 U.S.C. 4246]. 5. First, as Dr. Cooke su g g ests in his report, it is futile as a matter of sound medical practice to attempt to conduct a meaningful insanity examination as long as the defendant remains overtly psychotic. A t this time, it is impossible to predict when, if ever, the defendant will become amenable to an insanity examination. While it is conceivable, given the defend ant's past responsiveness to treatment, it is 18 U.S.C. 4241(d). hardly certain that being returned to a [ 1 ] 2 . On the basis of the defendant's behavior at today's hearing, testimony and evidence submitted at the hearing, and on reviewing the entire record of this case, I regular regimen of psychotropic medication will bring his illness to a point of remission where he may be subject to an insanity examination. find that the defendant is presently suffer 6 . Second, as an analytical matter, a ing from a mental disease or defect render defense to a criminal charge is available ing him mentally incompetent to the extent only to a person who is competent to stand that he is unable to understand the nature trial on the charge against which the de and consequences of the proceedings fense is offered. I have found today that against him and to assist properly in his the defendant is legally incompetent to defense. stand trial. As an incompetent, the defend 3. The statute provides that commit ant strictly speaking has no need of the ment to the custody of the Attorney Gener insanity defense. By the same reasoning, al is mandatory after a finding of incom nor is the Government any longer in need petence. 18 U.S.C. 4241(d); see U.S. v. of an insanity examination, requested pur Shawar, 865 F.2d 856, 860 (7th Cir.1989) suant to 18 U.S.C. 4242(a).2 ("the statutory scheme established by Con 7. Third, once a defendant is found in gress clearly mandates that a defendant competent to stand trial and hospitalized found to be incompetent be placed in a under 18 U.S.C. 4241(d), the statute pro mental hospital for observation"). Accord vides that he may regain the legal status of ingly, I shall commit the defendant to the competence only after rather rigorous for- 2. This subsection provides, in pertinent part: Upon the filing o f a notice . . . that the defendant intends to rely on the defense of insanity, the court, upon motion of the attor ney for the Government; shall order that a psychiatric or psychological examination of the defendant be conducted, and that a psy chiatric or psychological report be filed with the court___ 18 U.S.C. 4242(a). COX v. VELSICOL CHEMICAL CORP. Clle a* 704 F.Supp. 85 (E.D.P. 1989) 85 mal procedures, including another court 3. The trial shall be continued until fur hearing, are complied with. 18 U .S .C .. ther order, of this court Any period o f 4241(e). If, after the hearing, the de delay resulting from the fact that the de fendant is found by a preponderance of the fendant is mentally incompetent shall be evidence to have "recovered to such an excluded in computing the time within extent that he is able to understand the which the trial m ust commence. 18 U.S.C. nature and consequences of the proceed: 3161(h)(4). ings against him and to assist properly in his defense, the court shall order his imme diate discharge from the facility in which he is hospitalized and shall set the date for trial." Id. Discharge from the hospital upon the court's finding of competence de fines the point at which a defendant re-en ters the world of persons properly subject Edward N. COX, Sr. and E ileen .Cox, C o- to criminal prosecution. As a matter o f Adm inistrators o f the E state o f Ken law, it is at this point that a defendant may neth Cox, deceased, and on behalf of avail himself of the defense of insanity, the heirs o f Kenneth Cox, deceased and at this point also that the Government may in turn make use of the statutory apparatus that provides for psychiatric or psychological examination of defendants v. VELSICOL CHEMICAL CORPORATION. who intend to rely on that defense. , . Civ. A. No. 87-0775. 8 . For these reasons, I shall defer deci sion on the Government's Motion for Exam ination of Defendant to Determine E x ist enee of Insanity, without prejudice to the United States District Court, ------------ E.D. Pennsylvania. ........... ..... -- Feb. 2, 1989. government's renewing it when appropri ate. I shall also defer decision on the defendant's request to have the insanity examination recorded by video tape, noting, however, that the statutory provision relied on by defendant, 18 U.S.C. 4247(f), as authorizing such video recordings does not apply by its terms to insanity examinations conducted pursuant to 18 U.S.C. 4242. An appropriate order follows. Action was brought against manufac turer of pesticide alleging failure to ade quately warn about risks associated with use of chlordane products. Manufacturer moved for summary judgment alleging that Federal Insecticide, Fungicide and Rodenticide Act preempted state tort claims involving failure to adequately warn. The District Court, Robert F. Kelly, J., held ORDER AND NOW, this 2nd day o f February, 1989, in accordance with the findings con that FIFRA did not preempt state tort claims. Motion denied. tained and for the reasons set forth in the attached Memorandum, it is hereby OR DERED as follows: 1. The defendant is committed to the custody of the Attorney General for hospi talization pursuant to 18 U.S.C. $ 4241(d). Agriculture =9.13 States =18.65 Federal Insecticide, Fungicide and Rodenticide A ct did n ot preempt state law product liability claims involving failure to 2. The Government's Motion for Exami adequately warn about risks associated nation of Defendant to Determine Exist with use of chlordane products;, it ap ence of Insanity is deferred, without preju peared that Congress intended through FI dice to the Government's renewing it when FRA to se t minimum standards for pesti appropriate. cide labeling, not to immunize manufactur- 8 6 704 FEDERAL SUPPLEMENT ers from state tort claims alleging inade quate warnings. Federal Insecticide, Fun gicide and Rodenticide Act, 2-31, as amended, 7 U.S.C.A. 136-I36y. Lee B. Balefsky, Greitzer and Locks, Philadelphia, Pa,, for plaintiffs. Thomas J. Elliot, Baskin Flaherty Elliot 6 Mannino, P.C., Philadelphia, Pa., for de fendant. MEMORANDUM AND ORDER ROBERT F. KELLY, District Judge. The question for decision in defendant Velsicol Chemical Corporation's Motion for Summary Judgment based on Federal Pre emption is whether the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. 136-136y, preempts the plain tiffs' state tort claims involving failure to adequately warn. Plaintiffs' decedent, Kenneth Cox, was employed as a pest control operator for four different companies during limited in tervals from 1977 to 1982. Plaintiffs al lege that the decedent developed lung can cer as a result of exposure to chlordane products manufactured by the defendant. Specifically, Counts I and III o f the com plaint charge the defendant with negli gence and strict liability for failing to give adequate warnings or instructions about the risks associated with the use of its products. FIFRA states, in relevant part, that: (a) 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 sub chapter. (b) Such State shall not impose or con tinue in effect any requirements for la beling or packaging in addition to or different from those required under this Qq subchapter. 7 U.S.C. 136v(a) and (b). A t first glance, the language of section (b) would seem to clearly indicate Congress' intent to preempt the states from regulating pesticide label ing. What the statute's language does not reflect, however, is the significant role the manufacturer plays in the regulatory scheme of FIFRA. Under FIFRA, the Environmental Pro tection Agency (EPA) is responsible for the registration and labeling of pesticides. FI FRA permits the EPA to register a pesti cide only if the EPA makes a determination that "it will perform its intended function without unreasonable adverse effects on the environment" 7 U.S.C. 136a(c)(5)(C).. "When a pesticide is registered, the manu facturer must submit its proposed label to the EPA for approval; any changes in the label must also be approved by the EPA." Fitzgerald v. Mallinckrodt, Inc., 681 F.Supp. 404, 406 (E.D.Mich.1987). These labels are then subject to regulations re garding warnings and precautionary state-. ments. See 40 C.F.R. 162.10(h) (1987). Unlike, for example, the Federal Ciga rette Labeling and Advertising Act, 15 U.S.C. 1331 et seq, which "prescribes the exact label of warning to be placed on each package of cigarettes," a manufacturer, pursuant to FIFRA, submits a proposed label for approval. In Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir.1987), the Circuit Court explained the difference: FIFRA, which applies to some 40,000 dif ferent herbicide and pesticide formula tions, imposes an entirely different type of regulatory scheme from that estab lished under the [Cigarette Labeling Act]. Under FIFRA, each manufacturer drafts a warning label for each product for EPA approval. Thus, two manufac turers of the same regulated product may use different labels of their own choosing, provided only that they obtain prior EPA approval. Further, [FIFRA] permits `states to impose more stringent constraints on the use of EPA-approved pesticides than those imposed by the EPA,' indicating that Congress was indif ferent to regulation of these products through state tort law. In contrast, the [Cigarette Labeling Act] explicitly (i) ap plies to cigarettes only; (ii) mandates the precise language of the label; and (iii) prohibits any state from regulating any aspect of cigarette warnings. Id. at 629, n. 13 (citations omitted). Very likely what Congress intended through FIFRA was to set minimum stan- COX V. VELSICOL CHEMICAL CORP. Cite u 704 F.Supp. 89 (E-D.Pa. 1989) 87 dards for pesticide labeling. In Palmer, enforcement of state laws on the same the court further explained: subject,' or because `the object sought The very fact that Congress mandated the precise wording required in a label [referring to the Cigarette Labeling Act], rather than merely establishing the `mini mum requirements' standard often found in labeling acts distinguishes the [Ciga rette Labeling Act] from cases relied upon by the court and the Palmers as persuasive authority. See, e.g., Ferebee v. Chevron Chemical Co., 736 F.2d 1529 to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose.' Second, in those instances where Con gress has not wholly superceded state regulation in a specific area, state law is preempted `to the extent that it actually conflicts with federal law.' The Court has stated that such conflict arises when `compliance with both federal and state regulations is a physical impossibility,' or (D.C.Cir.) (involving FIFRA minimum la where state law `stands as an obstacle to beling standards), cert denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1 9 8 4 ).... 825 F.2d at 623, n. 5. Based on the above, we are not convinced that Congress intend ed to preempt the entire field of pesticide labeling thus immunizing manufacturers from state tort claims alleging inadequate warnings. The fact that manufacturers submit their own labels implies a duty to the accomplishment and execution of the ;.full purposes and objectives o f Congress. Id. at 185 (citations omitted). Applying these principles to the case sub judice, we are . convinced that FIFRA does not preempt plaintiffs' claims. We agree with the conclusions reached by the District of Columbia Court o f Appeals in Ferebee: ..First, Congress has not explicitly preempted state damage actions; it has . merely precluded states from directly or- provide a label that gives adequate warn-' dering changes in th e EPA-approved la ings about the risks associated with the bels . . . Second, compliance with both product's use notwithstanding the approval of the EPA. Our conclusion that FIFRA does not preempt the plaintiffs' claims based on inadequate warnings is supported by a more traditional preemption analysis as well. In Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3d Cir.1986), the Third Circuit federal and state law cannot be said to be impossible: [defendant] can continue to use the EPA-approved label and can at the same time pay damages to successful plaintiffs such as [plaintiff]; alternative ly, [defendant] can petition the EPA to allow the label to be made more compre hensive. Third, state dam ages actions of the sort at issue here do not stand as an relayed the principles se t forth by the Su obstacle to the accomplishment of FI- preme Court for determining congressional intent to preempt state authority: Congress may preempt state law by ex press statem ent. Without the aid of ex press language, a court may find intent to preempt in two general ways. First, a court may determine that Congress in tended `to occupy a field' in a given area FRA's purposes. Such a conflict would exist only if FIFRA were viewed not as a regulatory statute aimed at protecting citizens from the hazards o f modern pes ticides, but rather as an affirmative sub sidization of the pesticide industry that commanded states to accept the use of EPA-registered pesticides. 736 F.2d at 1542-43. because `[t]he scheme of federal regu- For these reasonS( defendant's Motion lation may be so pervasive as to make f or Summary Judgment based on Federal reasonable the inference that Congress Preemption shall be DENIED, left no room for the States to supple ment it,' because `the Act o f Congress may touch a field in which the federal | KEY HUKBtR SYSTEM^ interest is so dominant that the federal system will be assumed to preclude 1338 775 FEDERAL SUPPLEMENT Haw .Rev.Stat. 481-13(a). See Island To bacco, 63 Haw. 289, 300-01, 627 P.2d 260 ("The Federal Trade Commission Act vests power to enforce its provisions in the Fed eral Trade Commission; it contains n o `ex press private remedy. And federal courts historically have found that no right to private actions could be implied from the Act. The enforcement provisions o f Ha waii's law, on the other hand, do not impede private suits fo r treble damages based on violations o f 480-2" ) (citations omitted) (emphasis added); Bartleys Town and Country Shops v. Dillingham Corp., 530 F.Supp. 499, 514 (D.Haw.1982) ("Haw. Rev.Stat. 480-2 differs from section 5(a)(1) o f the Federal Trade Commission A ct in that Hawaii's statute grants a pri vate right of action whereas section 5(a)(1) contains no express private remedy. Sec tion 480-2 is also designed to protect `com petitors' as well as 'competition.' '' (citing Island Tobacco)). See also Beerman v. Toro Mfg. Corp., 1 Haw.App. I l l , 117, 615 P.2d 749 (1980) (allowing consumer stand ing under 480-13 while assum ing that standing of businesses w as a foregone con clusion). Because 480-13(a) contains a blanket conferral of private standing, the Hawaii legislature found it necessary to enact 480-2(d), limiting enforcem ent o f the "de ceptive practices" clause to "consumers, the attorney general or the director o f the office of consumer protection." Haw.Rev. Stat. 480--2(d). This effectively denied businesses standing to sue under the "de ceptive practices" clause. N o such limiting language was included for "unfair competi tion" claims under that section. In the absence of any additional limiting lan guage, it seem s clear that the generic standing provisions of 480~13(a) should control. Paulson's cause o f action should, thus, be allowed to proceed. Such a conclu sion is not only legislatively mandated, but is thoroughly consistent with the broad en forcement spirit enunciated by the Hawaii state courts. Accordingly, the court D EN IES Borden's motion to dismiss for lack of standing, holding that Paulson has standing to bring an "unfair competition" claim under Haw. Rev.Stat. 480-2. 1 B. Standing o f Mr. and Mrs. Corniotis to file Suit Under the "Deceptive Practices" Clause. Plaintiffs George and Marsha Corniotis, assert a separate cause of action under H aw.Rev.Stat. 480-2 claiming "unfair and deceptive acts and practices." Mr. Corniotis is the sole shareholder, President, and Chairman o f the Board of Directors of Paulson, and Mrs. Corniotis is a`n officer and director of Paulson. The harm that each claims appears to be in the form of diminished value of Paulson stock as a result o f harm done to the corporation. Borden points out that this is, by nature, a derivative claim. It is conceded that under the current version o f the statute, the corporation, it self, would not have standing to sue under the "deceptive practices" clause of Haw. Rev.Stat. 480--2(a). Borden therefore contends that "[i]t makes no logical or pru dential sense to permit mere shareholders' to assert a claim for injuries . ... when the corporate entity itself can not." Borden's Memorandum in Support of Motion, at 21. Plaintiffs have two responses: (1) Mr. and Mrs. Corniotis have a direct cause of action as "consumers," independent of the derivative action; and (2 ) because the cause o f action accrued prior to the time the statute was amended to restrict corporate standing, the corporation would have standing under the old version of the stat ute, and therefore the shareholders have derivative standing. These contentions will be discussed, in turn, below. 1. Direct Cause o f Action by the Corniotis'. 114] Haw.Rev.Stat. 480-2(d) allows that suits alleging "unfair or deceptive acts or practices" may be brought by "consum ers." Section 480-1 includes, in its defini tion of "consumer," "[a] natural person .. who commits money, property, or services in a personal investment." Mr. and Mrs. Corniotis argue that they are "consumers within the meaning of the statute because they have committed money, property, or MONTANA POLE & TREATING PLANT v. I.P. LAUCHS CUefti77S F,Supp. 1339 (D.Moot. 1991) ^39 services to Paulson, and have, therefore, .. [15] A t this point, Plaintiffs are argu been harmed by defendants' actions. - ing that the Corniotis' have standing to sue However, the legislative history of ' 480-2 clearly indicates that the purpose of defining a "consumer" as "[a] natural person . . . who commits money, property, or services in a personal investm ent" w as to protect "people who had invested in bo gus financial schemes," not to protect shareholders whose corporations had been harmed by a deceptive practice of another business. See House Stand.Comm.Rept. No. 716-90, reprinted in 1990 House Jour because Paulson tael/has standing to sue under the "deceptive practices" clause. .YeL if Paulson, itself, has standing to sue, and is willing to bring suit, a purely deriva tive suit by the Corniotis' is unwarranted. Such derivative actions are generally only permitted when a corporation has "failed to enforce a right which may be properly as signed to i t " See, e.g., Fed.R.Civ.P. 23.1. Here, the corporation is actively seeking to protect its rights. nal at 1113 (explaining that this was why the word "personal" w as placed before the word "investm ent"). Borden is correct to point out that any harm which Mr. and Mrs. Corniotis may have suffered is an indirect result of harm done to Paulson, and therefore is a deriva tive claim. To allow such a derivative claim by shareholders, when the corpora tion itself is barred from bringing suit, would defeat the purpose o f the standing Accordingly, the court GRANTS Bor den's motion to dismiss for lack o f stand ing, holding that the Corniotis' have no cause of action under 480-2, derivative or otherwise. As to Plaintiffs' newly raised claim that Paulson itself has standing un der the "deceptive practices" clause, this could only be considered if plaintiffs amend their complaint to reflect this claim. IT IS SO ORDERED. limitation expressed in 480--2(d). Therefore, the court holds, as a matter of law, that Mr. and Mrs. Corniotis have no independent claim against defendants un der the "unfair or deceptive acts or practic es" clause o f 480-2(d). ' 2. Derivative Action Pursuant to the Pre-1987 Standing Provisions. Plaintiffs' second argument is more com plicated. They contend that before the 1987 amendments, businesses were allowed standing under the "deceptive practices" clause of 480-2. The effect o f the 1987 amendment, which limited standing to "consumers," was to "preclud[e] [the clause's] application to private disputes be tween businessmen." Senate Standing Committee Report No. 1056 reprinted in 1987 Hawaii Senate Journal at 1345; Con ference Committee Report No. 104 reprint ed in 1987 Hawaii House Journal at 1053. Plaintiffs then argue that because their cause of action accrued prior to 1987, the old standing rules should apply to them, and Paulson itself should be allowed to sue binder the "deceptive practices" clause. MONTANA POLE & TREATING PLANT and Torger L. Oaas, Plaintiffs, v. I.P. LAUCKS AND COMPANY, Monsan to Chemical Company, Reichold Chemi cals, Inc. and Dow Chemical Company, and Chapman Chemical Company, and Does 1 through 50, Defendants. No. CV-86-147-BU-PGH. United States District Court, D. Montana, Butte Division. Aug. 15, 1991. : Owner of wood-treating facility and its principal stockholder brought action against manufacturers of wood preserva- 00 (J1 H* P % S 1340 ' 775 FEDERAL SUPPLEMENT tive, seeking indemnity for .cleanup costs and compensatory damages'arising when w aste preservative contaminated site.. On defendants' motion for summary judgment, the District Court, Hatfield, Chief Judge, held that: (1) Federal Insecticide, Fungi cide, and Rodenticide A ct (FIFRA) did not preempt state law tort recovery on failure to warn theory; (2 ) plaintiffs'. property damage claims were barred by Montana's two-year limitations period; and (3) defen dants' conduct in marketing wood preserva tive did not m eet threshhold level of ``out rageousness'' to support claim of intention al infliction of emotional distress under Montana law. Motion granted in part and denied in part. 1. Agriculture =9.13 States =18.65 Federal Insecticide, Fungicide, and Ro denticide A ct (FIFRA) did not preempt state law tort recovery on failure to warn theory in action brought by owners of wood treating facility against manufactur ers of wood preservative that allegedly con taminated owners' property. Federal In secticide, Fungicide, and Rodenticide Act, 2 et seq., as amended, 7 U.S.C.A. 136 et seq. 2 . Agriculture =9.11(2) Under Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Environmen tal Protection Agency (EPA) is required to register pesticide if it determines pesti cide's labeling and other materials comply with FIFRA's requirements; and pesticide, when used properly, will perform its in tended purpose without unreasonable ad verse effects on environment. Federal In secticide, Fungicide, and Rodenticide Act, 2 et seq., as amended, 7 U.S.C.A. 136 et seq. 3. Agriculture =9.13 States =18.65 State common law remedies are not expressly preempted by Federal Insecti cide, Fungicide, and Rodenticide Act. Fed eral Insecticide, Fungicide, and Rodenticide Act, 2 et seq., as amended, 7 U.S.C.A. 136 et seq. 4. Agriculture =9.13 . in sta te s =18.65 Federal Insecticide, Fungicide, and Ro denticide A ct (FIFRA) does not impliedly preempt state common law tort claims against manufacturers of EPA-registered pesticides. Federal Insecticide, Fungicide, and Rodenticide Act, 2 et seq., as amend ed, 7 U.S.C.A. 136 et seq. . 5. Lim itation o f A ctions =95(7) ! Montana's two-year statute o f limita tions governing property damage claims, applicable to wood treatment plant owners' action against" chemical manufacturers based on contamination of his property with wood preservative, commenced to run when owners knew that waste preservative had caused environmental damage, rather than when owners lost use of property as result of Environmental Protection Agen cy's (EPA's) seizure o f site. MCA 27-2207. 6. L im itation o f A ctions =95(1) ~ Fact that party with cause of action has no knowledge of his or her rights, or even facts out of which cause arises, does not delay running o f statute of limitations under Montana law. 7. L im itation o f A ctions =95(1) Critical determination as to when cause of action accrues under Montana law is knowledge of facts essential to cause of action. 8 . L im itation o f A ctions =195(3), 199(1) Issue of when particular plaintiff's cause of action in tort accrued under Mon tana law is ordinarily question of fact for jury to determine with defendant bearing burden to prove this affirmative defense. 9. L im itation o f A ctions =95(7) Complete loss of use and enjoyment of property is not prerequisite for stating via ble property damage claim under Montana law. MCA 27-2-207. 10. Lim itation o f A ctions =95(7) Under Montana law, "discovery doc trine" did not toll statute of limitations applicable to wood treatment plant owners property damage claim against manufacu- MONTANA POLE & TREATING PLANT v. I.F. LAUCKS 1341 Clle u 775 FSupp. 1339 (DJUonL 1991) turers of wood preservative based on al . Torger S. Oaas, Jr., Lewistown, M ont, leged contamination of owners' property Bernard J. Allard, Popelka, Allard, McCow- until damage to property caused by dispos an & Jones, San Jose, Cal., for plaintiffs. al of w aste preservative stabilized, where owners knew, prior to alleged date of stabi lization, that property had been damaged by m anufacturers' product MCA 27 -2 207. Dolphy O. Pohlman, Corette Smith Pohlman & Allen, Butte, M ont, Bruce A. Featherstone, Scott R. Bauer, Kirkland & Ellis, Denver, Colo., for Monsanto Chemical Co. 11. L im itation o f A ctions <=55(6) . "Continuing injury" and "continuing nuisance" rationale did not apply to toll P. Keith Keller Keller, Reynolds, Drake, Stem hagen & Johnson, Helena, Mont., for Dow Chemical. statute o f limitations as to products liabili ty, negligence and warranty claim ad MEMORANDUM AND ORDER vanced by owners of wood treatment plant ' HATFIELD, Chief Judge. in action against manufacturers of wood preservative that allegedly contaminated owners' property. MCA 27-2-207. BACKGROUND 12. D am ages =208(6) It is question of law whether plaintiff has entered sufficient evidence to support prima facie case for intentional infliction of emotional distress. 13. D am ages <^50.10 Conduct o f chemical manufacturers in marketing wood preservative did not meet threshhold level of "outrageousness" to support claim of intentional infliction of emotional distress under Montana law in action arising when w aste preservative al legedly contaminated wood treatment plant owners' property. 14. H ealth and E nvironm ent =>25.5(5.5) Wood preservative manufacturers were not liable or potentially liable for cleanup costs at site of wood processing iiKV: facility on which w aste preservative had IS been discarded; owners and operators of M facility, not manufacturers, were respon sible for disposing of waste preservative H generated by treating process. Compre m hensive Environmental Response, Compen sation and Liability Act of 1980, 106, .107, 107(a), 113(f)(1), as amended, 42 U.S.C.A. 9606, 9607, 9607(a), 9613(f)(1). From 1946 through 1984, Montana Pole & Treating Plant ("Montana Pole") owned and operated a wood-treating facility in Butte, Montana. Montana Pole's wood treating process utilized the preservative pentachlorophenol ("penta"), which was mixed with various petroleum products. The process'generated w aste penta, which Montana Pole disposed o f in a manner that ultimately contaminated the real property on and near the treatment facility. In June, 1985, the United States Environ mental Protection Agency ("EPA") de clared Montana Pole's facility a "Super fund Site" and initiated an emergency cleanup operation. The EPA also notified Montana Pole of its responsibility, under the Comprehensive Environmental Re sponse, Compensation and Liability A ct of 1980 ("CERCLA"), 42 U.S.C. 9601-9675 (1987), for the cleanup costs. On November 15, 1986, Montana Pole and its principal stockholder, Torger L. Oaas, instituted the above-entitled action 1 against the suppliers of the penta utilized in the treatm ent process,2 seeking indemni ty for the cleanup costs, as well as compen satory damages, under the following 1. Plaintiffs initially filed suit in the District ' Court o f the Second Judicial District o f the State of Montana. Defendant Monsanto Company re! moved the action to this court on December 10, L 1986, pursuant to 28 U.S.C. 1441, invoking this court's diversity jurisdiction under 28 U.S.C. 1332. 2. The named defendants include I.F. Laucks and Company, Monsanto Company, Reichold Chemicals, Inc., Dow Chemical Company and Chapman Chemical Company. 1342 775 FEDERAL SUPPLEMENT' causes o f action: negligence, breach o f ex press and implied warranties, nuisance and strict products liability. Additionally, Torger Oaas seeks compensatory damages, in his individual capacity, for alleged "depres sion, anger, anxiety, outrage and embar rassm ent" as a result of the EPA's seizure of the treating site. ' Following lengthy discovery, defendants moved for summary judgment, pursuant to Fed.R.Civ.P. 56, asserting, inter alia, (1) plaintiffs' "failure to warn" claims were preempted by federal law; and (2) plain tiffs' claims for property damage were barred by the applicable statute o f limita tions. Defendants also moved for sum mary judgment on plaintiffs' claims for indemnity, nuisance and breach of warran ty, as well as Torger Oaas' individual claim. The referenced motions were referred to the Magistrate Judge for the District of Montana, the Honorable Robert M. Holter, for findings and recommendations, pursu ant to 28 U.S.C. 636(b)(1)(B) and (C) and Rule 400-4 o f the Rules of Procedure of the United States District Court for the District of Montana. The Magistrate Judge filed his report with the court, rec ommending summary judgment be entered in defendants' favor. The M agistrate Judge concluded (1) plaintiffs' claims for indemnity, nuisance and breach of warran ty failed as a matter of law; (2 ) plaintiffs' property damage claims were time-barred; and (3) Torger Oaas' emotional injury claim lacked any legal or factual basis. The Magistrate Judge also recommended the court deny defendants' summary judgment motion asserting federal preemption of plaintiffs' "failure to warn" claims. In accordance with 28 U.S.C. 636(b), the parties were afforded the opportunity to file written objections to the Magistrate Judge's report. Plaintiffs filed objections, taking issue with the M agistrate Judge's conclusions regarding (1) the statute of limitations issue; and (2) the viability of Torger Oaas' individual claim. The defen- dants in turn challenge the Magistrate Judge's recommendation regarding the fed eral preemption issue. Having conducted a 'de novo review o f the record, and consider ing the objections presented by the parties, the court is. prepared to rule. DISCUSSION A. Preemption [1] In moving for summary judgment, defendants Reichhold Chemicals, Inc. and Dow Chemical Company assert the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. 136 et seg., preempts state law tort recovery based on a failure to warn theory.5 Accordingly, defendants maintain plaintiffs' claims premised upon defendants' alleged breach of a purported duty to warn plaintiffs of the proper methods for disposing of penta w aste fail as a matter o f law. For the reasons discussed below, the court will DENY defendants' motion. Federal preemption of state law is based on the supremacy clause of the United States Constitution, article VI, clause 2. Preemption can be either express or im plied; it "is compelled whether Congress' command is explicitly stated in the stat ute's language or implicitly contained in its structure and purpose." Papas v. Upjohn Co., 926 F.2d 1019, 1021 (U th Cir.1991), quoting, Fidelity Federal Savings & Loan A s s'n v. De La Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982). Preemption can occur in a number of ways: Preemption occurs when Congress, in en acting a federal statute, expresses a clear intent to preempt state law, when there is outright or actual conflict be tw een state and federal law, where com pliance with both federal and state law is in effect physically impossible, where there is implicit in federal law a barrier to state regulation, where Congress has legislated comprehensively, thus occupy ing an entire field of regulation and leav ing no room for the States to supplement CJ I 3. Defendants have provided the court with affidavits establishing the penta products manufactured and sold by the defendants were registered with the EPA, pursuant to FIFRA's label- ing and packaging requirements. Plaintiffs have not presented any evidence or arguments to the contrary. MONTANA POLE & TREATING PLANT v. I.F. LAUCKS Cice * 775 RSupp. 1339 (D .M od L 1991) - federal law, or where the state law subm it the proposed label to the EPA for stands as an obstacle to the accomplish approval; any changes in the label m ust ment and execution of the full objectives also be approved by the EPA. Fitzgerald of Congress. v. Mallinckrodt, Inc., 681 F.Supp. 404, 406 Roberts v. Dow Chemical Co., 702 F.Supp. (E.D.Mich.1987). . 195, 196 (N.D.I11.1988), quoting, Louisiana Public Service Commission v. Federal Communications Commission, 476 U.S. 355, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986). There is, however, a presumption that '`Congress did not intend to displace state law." Id., quoting, Maryland v. Louisi ana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981). This presump [31 A t the outset, this court joins the majority of federal courts in holding state common law remedies are not expressly preempted by FIFRA. Riden v. ICI Amer icas, Inc., supra, 763 F.Supp. at 1505 (cita tions omitted). The question before this court, therefore, is whether FIFRA and the labeling regulations promulgated thereun der impliedly preempt state common law tion is heightened where the federal law tort claims based on labeling deficiencies. would have the effect of barring a state Although the issue has not been addressed from exercising its traditional police pow by the court of appeals for this circuit, it ers. Riden v. ICl Americas, Inc., 763 has been the subject o f two contradictory F.Supp. 1500, 1503 (W.D.Mo.1991).4 appellate decisions, Ferebee v. Chevron [2] Preemption analysis is largely a matter o f statutory construction. Roberts, supra, 702 F.Supp. at 196. The statute at issue, FIFRA, provides a comprehensive system for the registration and labeling of Chemical Co., 736 F.2d 1529 (D.C.Cir. 1984), cert, denied, 469 U.S. 1062,105 S.Ct. 545, 83 L.Ed.2d 432 (1985); and Papas v. Upjohn Co., 926 F.2d 1019, 1021 (11th Cir. 1991).5 ; pesticides. Fisher v. Chevron Chemical In Ferebee, the court upheld a jury ver Co., 716 F.Supp. 1283, 1286 (W.D.Mo.1989). dict in favor of an agricultural worker who Under FIFRA, the EPA is required to reg died from pulmonary fibrosis contracted ister a pesticide if it determines (1) the from a long-term skin exposure to para pesticide's labeling and other materials quat* The court found plaintiff's claims comply with FIFRA's requirements; and were not impliedly preempted by FIFRA (2) the pesticide, when used properly, will because the manufacturer could comply perform its intended purpose without un with both the federal and state (common reasonable adverse effects on the environ law) requirements. 736 F.2d at 1542. The ment. Papas, supra, 926 F.2d at 1023, court explained that a state court jury ver citing, 7 U.S.C. 136a(c)(5). When a pesti dict would not automatically "require" a cide is registered, the manufacturer must manufacturer to change its labels, but rath- 4. State com m on law tort remedies traditionally have been regarded as within "the scope o f state superintendence." R id en , su p ra . 763 F.Supp. at 1503. n. 4, quo tin g , Florida L im e Si A v o c a d o G row ers, Inc. v. Paul, 373 U.S. 132, 144, 83 S.Ct. 1210, 1218, 10 L.Ed.2d 248 (1963). 5. District courts are also split on the issue. Pa pas, su p ra , 926 F.2d at 1021, n. 1. Cases finding preem ption include H u rl v. Dow C h e m ic a l Co., 759 F.Supp. 556 (E.D.Mo.1990); K e n n a n v. D o w C h e m ic a l Co., I l l F.Supp. 799 (M.D.FIa.1989); F isher v. C h evro n C h em ic a l Co., 716 F.Supp. 1283 (W.D.Mo.1989); H err v. C arolina Log Bldgs., Inc., 771 F.Supp. 958 (S.D.lnd.1989): W atson v. O rk in E x te r m in a tin g Co., No. JFM88-2427, 1988 WL 235673 (D.Md. Nov. 8. 1988); and F itzgerald v. U a llin c k ro d t, Inc., 681 F.Supp. 404 (E.D.Mich.1987). Cases in which district courts found no preemption include R id e n v. IC I A m e rica s, In c., 763 F.Supp. 1500 (W.D.Mo.1991); A rkansas Platte Si G u ll P artnership v. Van Wa ters St Rogers, In c., 748 F.Supp. 1474 (D.Colo. 1990); E v e n so n v. O sm o se W o o d P reservin g Inc., 760 F.Supp. 1345 (S.D.lnd.1990); S te w a rt v. Or th o C o n su m e r P roducts, 1990 WL 36129 (E.D.La. 1990); C ox v. V elsicol C hem . Corp., 704 F.Supp. 85 (E.D.Pa.1989); W h ite n e r v. R e illy In d u s., Inc., No. 87-5224 (S.D.I11.1989); R o b e rts v. D o w C hem . Co., 702 F.Supp. 195 (N.D.I11.1988); and W ilson v. C hevron C hem . Co., 1986 WL 14925 (S.D.N.Y.1986). 6. The verdict was based on the theory that the defendant's failure to label paraquat in a man ner which adequately warned that long-term skin exposure to paraquat could cause serious lung disease made the defendant strictly liable for plaintiffs injuries. 736 F.2d at 1532. 1344 775 FEDERAL SUPPLEMENT er, would leave the manufacturer with the "choice of how to react" to the-jury verdict 'Kennan v. Dow Chemical Co., supra, 717 F.Supp. at 806 ("Chevron can continue to use the EPA-approved label and can at the same time pay damages to successful tort plaintiffs such as Mr. Ferebee; alternative ly, Chevron can petition the EPA to allow the label to be made t more comprehen sive.") 7 The Eleventh Circuit Court o f Appeals, in Papas v. Upjohn Co:, supra; concluded p laintiffs claims for personal injuries, based on theories of negligent labeling and failure to warn, were preempted by FIFRA. The court held "the federal govern ment has occupied the entire field of label ing regulation, 'leaving no room for the states to supplement federal law, even by means of state common law tort actions." 926 F.2d at 1025. The court added that a jury determination that a pesticide's label w as inadequate would (1) directly conflict with the EPA's prior affirmation o f the label's adequacy; and (2) force the manu facturer to alter the label or risk further lawsuits. 926 F.2d at 1025-26. A jury's imposition of damages in a state tort suit premised on labeling claims would disrupt the methods by which FIFRA protects man and the environment because it would inject irrelevant consid erations into the EPA's evaluation o f a pesticide and its labeling and would sec ond guess the EPA's conclusions. Papas v. Upjohn Co., supra, 926 F.2d at 1026. [41 After careful consideration, the court is unpersuaded by the reasoning set forth in Papas. Rather, the court adopts Ferebee and the line o f cases holding FIFRA does not impliedly preempt state com mon law tort claims against manufacturers of EPA-registered pesticides. The United States Supreme Court, in Wisconsin Public Intervenor v. Mortier, :-- U.S. -- , 111 S .C t 2476, 115 L.Ed.2d 532 (1991), rejected the argum ent that FI FRA occupies the entire field o f pesticide regulation, thereby precluding state or lo cal regulation of pesticide use. The Court, in reversing the Wisconsin Supreme Court, held a local ordinance requiring, inter alia, a permit for applying pesticides to private land, was not preempted by FIFRA. In so holding, the Court noted FIFRA did not, either expressly or impliedly, indicate that Congress sou ght to supplant local authori ty over pesticide regulation. -- U.S. at -------------- , 111 S.Ct. at 2483-86. . In contrast to other implicitly preempted fields, the 1972 enhancement of FIFRA does not mean that the use o f pesticides can occur "only by federal permission, subject to federal inspection, in the hands o f federally certified personnel and un der an intricate system o f federal com mands." City o f Burbank v. Lockheed A ir Terminal, 411 U.S. [624] at 634 [93 S.Ct. 1854, 1860, 36 L!Ed.2d 547], quot ing, Northwest Airlines v. Minnesota, 322 U.S. 292, 303 [64 S.Ct. 950, 956, 88 L.Ed. 1283] (1944) (Jackson, J., concur ring). The specific grant o f authority in 136v(a) consequently does not serve to hand back to the States powers that the statute had impliedly usurped. Rather, it acts to ensure that the States could continue to regulate use and sales even where, such as with regard to the ban ning of mislabeled products, a narrow pre-emptive overlap might occur. M ortier,-----U.S. a t ---------------- , 111 S.Ct. at 2486. Accordingly, this court concludes states are free to regulate, through common law remedies, the use and sale o f pesticides. The EPA's conclusion that a pesticide's label m eets FIFRA requirements "does not compel a jury to find that a label is 7. The Ferebee court based its finding on two alternative rationales: 1) com pliance with both federal and state law cannot be said to be im- _ possible because the defendant can petition the EPA to allow the label to be m ore com prehen sive; and 2) state com m on law dam ages would not serve as an obstacle to the accomplishment of FIFRA's purpose. "Such a conflict would exist only if FIFRA were viewed not as a regula tory statute aim ed at protecting citizens from the hazards o f modern pesticides, but rather as an affirmative subsidization o f the pesticide in dustry that commanded states to accept the use o f EPA-approved pesticides." R id en , suP ra'l v , F.Supp. at 1506, n. 12, quo tin g , Ferebee, 736 r-2d at 1542-43. 853 MONTANA PO LE & TREATING PLANT v. I.F. LAUCKS Cite u 775 F-Supp. 133 (D-Mont. 1991) 345 also adequate for purposes o f state tort while using .an .EPA-approved pesticide, the law as well. The purposes o f FIFRA adequacy o f the pesticide's label is neces and state tort law may be quite distin ct" sarily. called into question. Id. at 1508. 736 F.2d at 1540 (emphasis in original). Resolution of such a question presents a FIFRA attem pts to ensure, based on a factual is s u e . for:.the jury to determine. cost-benefit analysis that [the product], as labeled, does not "generally cause un reasonable adverse effects on the envi ron m en t" 7 U.S.C. 136a(c)(5XD). "State tort law, in contrast, may have broader compensatory goals; conceiva bly, a label may be inadequate under Consequently, for the reasons set forth herein, the court .concludes defendants' mo tion for summary, judgment asserting fed eral preemption o f plaintiffs' . failure to warn claims be, and the same hereby is, DENIED., state law if that label, while sufficient under a cost-benefit standard, none- ' B. Statute o f Lim itations ti theless fails to warn against any signifi cant risk." Roberts, supra, 702 F.Supp. at 199, quot ing, Ferebee, 736 F.2d at 1540. [5] P laintiffs' property damage claims are governed by Montana's two-year stat ute of limitations found a t Mont.Code Ann. 27-2-207. The M agistrate Judge, in Furthermore, the court rejects defen holding plaintiffs' claims time-barred, con dants' contention that a state court jury cluded plaintiffs, as early as 1969, were verdict would have the effe c t of "regulat ing" the content o f a warning label. See, Kennan, supra, 717 F.Supp. at 806-07. A manufacturer is not "compelled" to alter a product label in response to a jury award in the sam e way that it is "compelled" to comply with a state law or regulation. Riden, supra, 763 F.Supp. at 1507. For in stance, where a manufacturer is faced with an isolated jury verdict, it may dismiss the action as an aberration, pay the judgment and choose not to alter the label. Id. In addition, a manufacturer may petition the EPA for a change in the content of their labels. Roberts, supra, 702 F.Supp. at aware o f penta's' dangerous propensities and the resultant contamination of the treating site. That knowledge [of penta contamination in 1969], coupled with the actions by the State of Montana in contacting the plain tiffs about oily seep along Silver Bow Creek, and the State's agents telling the plaintiffs on February 16, 1983, that they must undertake cleanup is sufficient no tice to plaintiffs that (1) contamination .. existed, and (2 ) that the chief contami. nant was penta. . Accordingly, the M agistrate Judge held 198.8 FIFRA's labeling scheme was created to help minimize the risks associated with pes ticide use by requiring all pesticide labels plaintiffs' property damage claims accrued prior to November 15, 1984 (two years be fore the filing o f the present action), mak ing plaintiffs' complaint untimely. to contain certain essential information. Plaintiffs assert the statutory period Riden, supra, 763 F.Supp. at 1509. Ac commenced on June 13, 1985, when the cordingly, when an individual is injured EPA took over the treating site and in 8. The Ferebee court explained: Maryland can be conceived o f as having de cided that, if it must abide by EPA's determi nation that a label is adequate, Maryland will nonetheless require manufacturers to bear the risk of any injuries that could have been pre vented had Maryland been allowed to require a m ore detailed label or had Chevron per suaded EPA that a more comprehensive label was needed. The verdict itself [compensating Ferebee for injuries] does not command Chev ron to alter its label--the verdict merely tells Chevron that, if it chooses to continue selling paraquat in Maryland, it may have to com pensate for som e o f the resulting injuries. That may in som e sense impose a burden on . the sale o f paraquat in Maryland, but it is not the equivalent to a direct regulatory com mand that Chevron change its label. Chevron can comply with both federal and state law by continuing to use the EPA-approved label and by simultaneously paying damages to success ful plaintiffs such as Mr. Ferebee. R oberts, su p ra , 702 F.Supp. at 198, n. S, quoting, Ferebee, 736 F.2d at 1541. 1346 775 FEDERAL* SUPPLEMENT formed plaintiffs of their potential liability for cleanup costs. Plaintiffs .contend that prior to that point in time, they had not suffered any compensable injury because they retained the full use and enjoyment of their property. . *' [6--8 ] :The time at which a right of ac tion in tort accrues is not defined by Mon tana statute. N evertheless, this court, in applying Montana law, has held that a right o f action in tort accrues upon injury. See, Buhl v. Biosearch Medical Products, 635 F.Supp. 956, 959 (D.Mont.1985); Much v. Sturm, Ruger & Co., Inc., 502 F.Supp. 743^ 744 (D.Mont.1980), affd. 685 F.2 d 444 (9th Cir.1982). Furthermore, the fact that a party with a cause of action has no knowledge of his rights, or even the facts out of which the cause arises, does not delay the running of the statute of limita tions. Bennett v. Dow Chemical Co., 220 Mont. 117, 713 P.2d 992, 994-95 (1986) (cause of action accrues from the date of discovery of the facts which would give rise to a cause of action). See also, Major v. North Valley Hospital, 233 Mont. 25, 759 P.2d 153 (1988). Consequently, the critical determination as to when a cause of action accrues is knowledge of the facts essential to the cause o f action. See, Burgett v. Flaherty, 204 Mont. 169, 663 P.2d 332, 334 (1983). The issue o f when a par ticular plaintiff's cause of action in tort accrued is ordinarily a question of fact for the jury to determine with the defendant bearing the burden to prove this affirma tive defense. See, Thompson v. Nebraska Mobile Homes Corp., 198 Mont. 461, 647 P.2d 334 (1982); see also, Hill v. Squibb & Sons, E.R., 181 Mont. 199, 592 P.2d 1383 (1979). In the case sub judice, the court con- axeludes no material factual issues exist as to when plaintiffs' cause of action accrued. t^kThe record is replete with evidence that plaintiffs knew, prior to November 15, 1984, that the wbste penta had caused envi ronmental damage to the treating site. Consequently, plaintiffs' property damages claims accrued prior to November 15, 1984, and, as a result, plaintiffs are precluded from pursuing said claims since they failed to commence the present action within the two year period of limitations prescribed by Mont.Code Ann. 27-2-307. . Plaintiffs' failure to understand the causal relation ship between their injury and the defen dants' alleged wrongful acts will not resus citate a claim on which the statu te of limi tations has run. See, E.W. v. D.C.H., 231 Mont. 481, 754 P.2d 817, 820 (1988). . [9] Plaintiffs may not avoid application of. 27-2-207 MCA by asserting the EPA's seizure o f the treating site "on June 13, 1985, w as the injury-producing event upon which their claims are based. Contrary to plaintiffs' assertion, the complete loss of the use and enjoyment o f the property is not a prerequisite for stating a viable prop erty damage claim. See, Spackman v. Ralph M. Parsons Company, 147 Mont. 500, 414 P.2d 918 (1966) (plaintiffs entitled to recover damages for flooded basement even though basem ent was only flooded for two days and absent any evidence that plaintiff lacked the "full use and enjoy ment" of the property). -- Plaintiffs knew, prior to November 15, 1984, their property had been contaminated by the discharge of w aste penta. They also realized that the contamination would continue until the soil and groundwater were cleaned up. The mere fact the extent of plaintiffs' ultimate dam ages were un known is irrelevant. "[I]t is not necessary to know the total extent of damages that an act causes to begin the running of the statute o f limitations." E.W. v. D.C.H., supra, 754 P.2d at 820, quoting, Raymond v. Ingram, 47 Wash.App. 781, 737 P.2d 314, 317 (1987). "Few are the injuries that could not someday develop additional conse quences. To adopt the theory advocated by EW would again postpone the statu tory period indefinitely. Section 27-1-203, MCA, provides that "damages may be awarded . . . for detri m ent . . . certain to result in the future.' In Frisnegger v. Gibson (1979), 183 Mont. 57, 598 P.2d 574, w e construed 27-1-203 consistent with the Montana. practice o f instructing juries that dam-, ages need only be reasonably certain. > MONTANA POLE & TREATING PLANT v. I.F. LAUCKS 1347 Cite as 775 F.Supp. 133 (D-Mont. 1991) 183 Mont, at 71, 598 P.2d at 582. Under doctrine" to toll the statu te of limitations - the Frisnegger rationale, EW could have upon. their claims u n til. the damages to presented evidence of, and received dam their property "stabilized." : ages for, future harm, if any. - . E. W. v. D.C.H., supra, 754 P.2d at 820-21. *: [11] Finally, plaintiffs have failed vto present a persuasive argument for extend [ 1 0 ] The plaintiffs next su g g est the pe ing the "continuing injury" and "continu riod o f limitations should be tolled. Plain ing nuisance" rationale to toll the statute tiffs stress the continuing' nature of the of limitations as to the products liability, contamination warrants tolling the statu tory period until the point in time the dam age to their property stabilized. Plaintiffs predicate their position on the "discovery doctrine", as well as the concepts of "con tinuing injury", "continuing tort" and "con tinuing nuisance." See, Gravely Ranch v. Scherping, 240 Mont. 20, 782 P.2d 871 negligence and warranty claims advanced in the instant action.' The. decisions upon which plaintiffs rely, Gravely Ranch, supra, and Blasdel, supra, are distinguish able from the present action and, therefore, unpersuasive. , - In Gravely Ranch, the Montana Su (1989); Blasdel v. Montana Power Co., 196 preme Court held the presence of-lead acid Mont. 417, 640 P.2d 889 (1982); and Shors batteries on an adjoining landowner's prop v. Branch, 221 Mont. 390, 720 P.2d 239 erty w as a continuous nuisance that tolled (1986). the statute o f limitations period applicable The "discovery doctrine" has been judi cially applied to toll the statute of limita tions in cases where, in light o f the nature of the injury or the party's relationship, it is virtually impossible for the plaintiff to realize he has a cause of action. See, Johnson v. St. Patrick's Hospital, 148 Mont. 125, 417 P.2d 469 (1966); Keneco & Kenik v. Cantrell, 174 Mont. 130, 568 P.2d 1225 (1977). The "discovery doctrine" has m ost often been applied in cases involving to plaintiffs claims seeking damages for the loss of his cattle due to lead poisoning. Specifically, the court-held the statute of limitations would not begin to run until the -nuisance w as abated. .Furtherm ore, once the nuisance was removed, the statute of limitations would bar any - actions com menced more than two years after the abatement of the nuisance) or discovery of the cause of injury, whichever occurred later. 782 P.2d at 375. latent injuries. See, Monroe v. Harper, In Blasdel, plaintiffs sued for dam ages 164 M ont 23, 518 P.2d 788 (1974); Hor- to their real property resulting from the nung v. Richardson-Marrill, Inc., 317 rising water table caused by the construc F. Supp. 183 (D.Mont.1970). tion and operation of Kerr D a m ., The court The "discovery doctrine" may not, how ever, be utilized to toll the statute of limita tions until a plaintiff discovers his legal right to bring an action for known injuries. Bennett v. Dow Chemical Co., supra, 713 P.2d at 995. A s stated previously, plain tiffs knew, prior to November 15, 1984, that their property had been damaged by held plaintiffs' claims were not barred by the statute of limitations, despite the fact their complaint w as filed in 1960, approxi mately nineteen years after- the damage first occurred. The court held plaintiffs' cause of action accrued in 1960, when their damages stabilized and became permanent. 640 P.2d a t 894" the defendants' product. Consequently, In the case sub judice, plaintiffs' claims plaintiffs may not rely on the "discovery sound in negligence, products liability and 9. The court is also unpersuaded by plaintiffs' "continuing tort" argument premised on S h o r s v. B ra n ch , 221 Mont. 390, 720 P.2d 239 (1986). In Shors, the court held the presence of a gate ' blocking access to a river constituted a continu': ing tort and, as a result, plaintiffs had a cause o f action each day the gate obstructed the free use of their easement and could recover damages for the two years preceding filing o f their com plaint. In the present action, however, defendams' relationship with the plaintiffs ended more than two years prior to the filing o f this action and, as a result, there is no on-going conduct o f the defendants that can be abated to end a continuous tort. 1348 775 FEDERAL SUPPLEMENT breach of warranty.10 Plaintiffs have emotional distress, the Montana Supreme failed to present a cogent afgum ent for Court has indicated that "where [defen extending the continuing nuisance princi ples discussed in Gravely Ranch and Biasdel to the present action. Accordingly, the dant's] conduct has been so outrageous, and so extreme in degree, as to go beyond all possible bounds of decency, and to be court concludes defendants have made the regarded as atrocious, and utterly intol requisite showing, based upon the facts erable in a civilized community . . . " that it and evidence of record, to establish their may allow recovery for the same. Day v. entitlem ent to summary judgment, under Montana Power Company, 242 Mont. 195, Fed.R.Civ.P. 56, on the statute o f limita 789 P.2 d 1224, 1226 (1990), quoting, Frigon tions issue. In this court's opinion, no rea v. Morrison-Maierle, Inc., 233 Mont. 113, sonable jury could find plaintiffs were not 123, 760 P.2d 57, 63-64 (1988), (quoting on' notice, well before November 15, 1984, R estatem ent (Second) of Torts 46, Com that their property was contaminated and m ent d (1965)).12* It is a question o f law that a causal relationship existed between whether a plaintiff has introduced suffi the defendants' penta and that damage. cient evidence to support a prima facie case Consequently, the court concludes defen for intentional infliction of emotional dis dants' motion is well taken.11 tress. Doohan v. Bigfork School District - . C. Torger Oaas' Individual Claim No. 38, 247 Mont. 125, 805 P.2d 1354, 1365 (1991), citing, Philip R. Morrow, Inc. v. Torger Oaas asserts material factual is FBS Ins. Montana-Hoiness Labor, Inc., su es preclude entry of summary judgment 236 Mont. 394, 403, 770 P.2d 859, 864 with respect to his individual claim for emo (1989). tional injury. The court is unconvinced, however, that Oaas has sufficiently estab lished the existence of the factual predicate essential to a claim for emotional injury. [13] In the case sub judice, Oaas has failed to establish the conduct of the defen dants in marketing penta met the threshold level of "outrageousness" contemplated by [12] Although Montana has not y e t rec the Day decision. As a result, Oaas is ognized the tort of intentional infliction of unable to establish the factual predicate 10. Plaintiffs' nuisance claim fails as a matter o f law. The Magistrate Judge recomm ended plain tiffs' nuisance claim be dismissed, given the fact that the defendants, as suppliers of penta, lacked any ownership interest in the treating facility, nor did they possess any right or ability to remedy the nuisance creating activity there on. See, E d w a r d H in es L u m b e r Co. v. V ulcan M a te ria ls Co., 861 F.2d 155 (7th Cir.1988). See also, C ity o f M a n c h e ste r v. N a tio n a l G y p su m Co., 637 F.Supp. 646 (D.R.1.1986); T o w n o f H o o k se tt S c h o o l D istrict v. W .R. G race & Co., 617 F.Supp. , 126 (D.N.H.1984) (nuisance claim may not be maintained against defendants who merely manufacture a product which, subsequent to its sale, allegedly causes damage to property). Plaintiffs have failed to present any argument in opposition to the Magistrate Judge's recom m en dation. 11. The party moving for summary judgment, pursuant to Fed.R.Civ.P. 56, bears the initial burden o f proving that no genuine issue of material fact exists. See, e.g,, A d ic k e s v. S.H. K re ss <St Co., 398 U.S. 144, 157, 90 S.Ct. 1598, - 1608, 26 L.Ed.2d 142 (1970); C a lifo rn ia P a cific B a n k v. S m a ll B u s in e ss A d m in is tr a tio n , 557 F.2d ' 218, 220 (9th Cir.1977). In m eeting that bur den, the moving party may rely on the plead ings, depositions, answers to interrogatories, and adm issions on file, together with affidavits, if any, to show there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Once the moving party's burden is met, the burden o f proof shifts to the opposing party to demonstrate the existence of a genuine issue o f fact. A n d e r so n v. L ib e r ty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Turner v. International Brotherhood o f Team sters, 604 F.2d 1219, 1228 (9th Cir.1979). The party opposing a motion for summary judgment "may not rest upon the mere allegations . . . of his pleading," but must, by affidavit or other wise, "set forth specific facts showing that there is a genuine issue for trial." T u r n e r v. In te rn a tio n a l B ro th e rh o o d o f T ea m sters, su p ra , 604 F.2d at 1228. The issue must be one raising a factual dispute that will affect the outcom e of the law suit. A n d e r so n v. L ib e r ty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 12. The Montana Supreme Court has also nar rowly construed the tort of negligent infliction o f emotional distress. Day, su p ra , 789 P.2d at 1226, citing, V e rsla n d v. C aron T ransport, 206 Mont. 313, 322-23, 671 P.2d 583, 588 (1983). S8 MONTANA POLE & TREATING PLANT v. I.F. LAUCKS 1349 Cite as 775 F.Supp. 1339 (D.Monl. 1991) required under Montane law to sustain a D. Indemnity claim for intentional infliction o f emotional distress. See, Doohan, 805 P.2d at 1365. More importantly, Oaas. has failed to present any basis upon which to impose liability , on the named defendants for his alleged emotional injury. . The Montana Supreme Court has permit ted plaintiffs to recover for their emotional distress as an elem ent o f d a m a g es13 in actions for: (1) private nuisance (French v. Ralph E. Moore, Inc. (1983), 203 M ont 327, [14] Any party potentially liable for the costs o f cleaning up hazardous substances may seek contribution from other potential ly responsible entities, pursuant to Section 113(f)(1) . o f CERCLA, 42 U.S.C. 9613(f)(1). ,' Any person may seek contribution from any other person who is liable or potentidily liable under section 107(a) [42 ''"U.S.C. 9607(a)] . . . . In resolving con 661 P.2d 844); (2) violation o f certain con tribution claims, the court may allocate stitutional rights (Stensvad v. Towe (1988), -i- response [ie., cleanup] costs among lia- 232 Mont. 378, 759 P.2d 138); and (3) : ble parties using such equitable factors breach of the covenant of good faith and as the court determines are appropriate. fair dealing (Gibson v. Western Fire Ins. Nothing in this subsection shall diminish Co. (1984), 210 Mont. 267, 682 P.2d 725; the right of any person to bring an action Dunfee v. Baskin-Robbins, Inc. (1986), 221 for contribution in the absence o f a civil Mont. 447, 720 P.2d 1148; Safeco Ins. Co. action under section 106 or 107 [42 U.S.C. v. Ellinghouse (1986), 223 M ont 239, 725 P.2d 217). Day, supra, 789 P.2d at 1227. The court has declined, however, to extend recovery for emotional distress damages to 9606 or 9 6 0 7 ]." 42 U.S.C. $ 9613(f)(1) (emphasis added). In the case sub judice, the Magistrate cases where a defendant negligently dam- Judge noted the owners and operators of ages or destroys real property and the the Montana Pole facility, and not the plaintiff suffers no physical injury. Id. named defendants, were responsible for ; Oaas has failed to present a legal basis upon which to base an award of damages for his purported emotional distress. Fur thermore, Oaas has failed to establish the defendants' conduct resulted "in a substan tial invasion of a legally protected inter e st" causing "a significant impact upon disposing of the penta waste generated by the treating process. As a result, the Mag istrate Judge concluded plaintiffs had failed to establish the defendants were "lia ble or potentially liable," under 42 U.S.C. 9607(a),14 for the cleanup costs and, therefore, plaintiffs' indemnity claims the person of the plaintiff," Johnson v. failed as a matter of law. Plaintiffs have Supersave Markets, Inc., 211 Mont. 465, not raised any objections to the Magistrate 6 8 6 P.2d 209 (1984) (emphasis in original); Judge's recommended decision. According the factual predicate required under Mon ly, the court concludes defendants' motion tana law to sustain a claim for emotional for summary judgm ent is well taken with distress damages. See, First Bank respect to plaintiffs' indemnity claims. (N.A.)--Billings v. Russell Clark, 236 Mont. 195, 771 P.2d 84, 91 (1989); Johnson, supra. Consequently, the court concludes CONCLUSION defendants' summary judgment motion is For the reasons set forth herein, the well taken as to Torger Oaas' individual court, after conducting a de novo review of claim. the record, holds as follows: 13. "Emotional distress under Montana law has been and remains primarily an element of dam ages rather than a distinct cause o f action." ; D ay, su p ra , 789 P.2d at 1226, q u o tin g , Frigon, 760 P.2d at 63. 14. 42 U.S.C. 9607(a) provides that, subject to certain defenses and exception, liability for the costs of cleaning up hazardous substances may be imposed upon "any person who at the time of disposal of any hazardous substance owned . or operated any facility at which such hazard.. ous substances were disposed of." E d w a r d H in es L u m b e r Co. v. V u lca n M a teria ls Co., 861 F.2d 155. 156 (7th Cir.1988).. 1350 775 FEDERAL SUPPLEMENT (1) the motion for summary judgm ent on behalf of defendants Reichhold Chemicals, Inc. and The Dow Chemical Company asserting plaintiffs' "failure to warn" claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136 et seg. is hereby DENIED; . (2) defendants' motions for summary judgment are hereby GRANTED as to: - (a) Plaintiffs' property damage claims, i.e., Counts I-IV of plaintiffs amended complaint; and action against group health insurer, for promissory estoppel, predicated on claim that insurer's agent induced father to drop his then-existing family health policy by promising that insurer would pay medical bills associated with daughter's temporomandibular joint disorder, even if husband did not guarantee payment of expenses in curred by daughter. Motion granted in part and denied in part. ' (b) Plaintiffs' claims for indemnity, nuisance, breach of express and implied warranties, as well as Torger Oaas' emotional injury claim. IT IS SO ORDERED. i. Trade Regulation =862.1 N o independent cause of action may be predicated upon insurer's violation of those provisions of Montana Unfair Trade Practices A ct that prohibit insurer from misrepresenting terms of policy offered for sale. MCA 33-18-201 et seq., 33-18-202, 33-18204, 33-18-242, 33-18-242(1). 2. Estoppel =85 Father could maintain action against group health insurer for promissory estop pel, predicated on claim that insurer's Diane E. NEUMANN and Helmut Neumann, Plaintiffs, v. AID ASSOCIATION FOR LUTHERANS, Defendant. f * 6 " 4 inducLed f aLther,.to droP his then-exist" 8 f a m l l y h e a l t h p o h c y b y P r o m i s i n g that insurer would pay medical bills associated with daughter's temporomandibular joint disorder, even if husband did not guarantee payment of expenses incurred by daughter. No. CV-89-200-GF. United States District Court, D. Montana, Great Falls Division. Sept. 17, 1991. Insured and her father brought suit seeking monetary compensation against insurer, alleging inter alia, breach o f conit-rMacntf, bhiraenaAcnhh no ff nimvmpiliine/d1 cAoAviemnnaAnntf on ff givoaoad/1 . ... , . faith and fair dealing, and promissory es toppel. Insurer brought motion to dismiss. The District Court, Hatfield, Chief Judge, held that: (1) no independent cause of action may be predicated upon insurer's violation of those provisions of Montana Unfair Trade Practices Act that prohibit insurer from misrepresenting terms of policy offered for sale, and (2) father could maintain 3. Estoppel =85 "Doctrine of promissory estoppel" is founded in principles of equity, designed to promote justice, honesty and fair dealing, and to discourage fraud and prevent injus tice. See publication Words and Phrases for other judicial constructions and definitions, 4 Estoppel =52(2) need ^ rest considera. ,. , 1 1 , .. tion or legal obligation, "* 6. Federal Civil Procedure =1772 Motion to dismiss for failure to state claim for relief is not to be granted unless it appears to certainty that plaintiff is entitied to no relief under any stated facts which could be proved in support of claim, Fed.Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A. 856 [)-# NEUMANN v. AID ASS'N FOR LUTHERANS 1351 Cite a i 775 Fiupp. 1350 (D-MonL 1991) Dennis P. Conner and Elizabeth A. Best, ing attendant the insurance contract,. in Great Falls, Mont., for plaintiffs; -violation of the Unfair Trade Practices Act, Jack L. Lewis and Robert B. Pfenning, Jardine, Stephenson, Blew ett & 'Weaver, T.C., Great Falls, M ont, for defendant Mont.Code Ann. 33-18-201. et seg. (1987); fraud, actual and constructive; neg ligent and/or fraudulent misrepresenta- iaons; and promissory estoppel. .; MEMORANDUM AND ORDER HATFIELD, Chief Judge. BACKGROUND Plaintiff, Diane Neumann, is the daugh ter of the other named plaintiff, Helmut Neumann. For many years Diane was a named insured on a family health insurance policy procured by Helmut and issued by an insurance company which is not a party to this action. That particular policy cover ed all members of the Neumann family, including children under the age of 25. Helmut had paid the entire premium on that policy. In 1988, H elm ut obtained health insurance for his family from the defendant, Aid Association for Lutherans ("AAL"). A t that time Diane w as 22 years of age. Because of Diane's age, she could not be insured under an AAL family policy purchased by Helmut. Consequently, a .separate health insurance policy was issued by AAL to cover Diane. Helmut apparent ly paid the monthly premium necessary to keep Diane's policy in e ffe c t The present action has its genesis in a controversy between AAL and Helmut re garding the responsibility of AAL to pro vide coverage under the health insurance policy it issued to Diane for certain ex penses incurred by Diane in obtaining medical treatment for temporomandibular joint disorder ("TMJ"). AAL has denied coverage of Diane's claims on the basis that Diane's TMJ was a "pre-existing" con dition within the meaning of the policy and, under the terms of the policy, was excluded from coverage. Diane and Helmut have brought suit seeking monetary compensa tion against defendant AAL under the fol lowing theories of liability: breach of the terms of the insurance contract extant be;tween Diane and AAL; breach of the im plied covenant o f good faith and fair deal- , AAL has presented the court with a mo tion seeking dismissal of the complaint, as amended, to the extent the complaint seeks to advance a claim on behalf of H elm ut AAL contends the complaint fails to state a claim against AAL upon which relief can be granted in favor o f H elm u t Specifically, AAL asserts that Helmut is neither an insured under the policy nor entitled to the payment of benefits, and consequently; has no legally protected interest upon which he can maintain a claim for monetary dam ages against AAL based upon that entity's refusal to provide coverage to Diane under the health insurance policy issued to her by AAL. Consistent w ith ' its position that there exists no basis for Helmut to prose cute a claim for breach o f contract under the health insurance policy issued to Diane, AAL also contends that Helmut is preclud ed from maintaining a cause of action for breach of the Unfair Trade Practices Act, Mont.Code Ann. 33-18-201 et seg., since Helmut is neither an insured nor a thirdparty claimant within the contemplation of the Unfair Trade Practices Act. Helmut argues that he should be con sidered a "third-party claimant" with re spect to the AAL policy issued to Diane, entitled to prosecute an action pursuant to MontCode Ann. 33-18-201 (1987), predi cated upon AAL's alleged failure to satisfy the obligations imposed by that statute. Helmut relies principally upon the fact that he paid the premiums on the policy. Hel mut also asserts he is entitled to maintain an action in his own right for AAL's al leged violations of those provisions of the Unfair Trade Practices Act, specifically Mont.Code Ann. 33-18-202 and 204 (1987), which prohibit an insurance compa ny from misrepresenting the terms of an insurance policy offered for sale in the State of Montana.1 Contrary to the sug- 1. Mont.Code Ann. 33-18-202 (1987) prohibits any person from misrepresenting, inter alia, the 1 2 9 2 --1 3 0 r 970 FEDERAL REPORTER, 2d SERIES no duty to reinstitute the section 106 proce dures. It strenuously urges, however, that the agreem ent remained in effect--even af ter the completion of the original project, and that the EPA is therefore required to comply with its terms. According to the Citizens' Association, the developer's appli cation to add new lines to the sew er system is subject to that agreem ent and therefore the section 106 consultation m ust be re opened. We have no doubt that the EPA was bound by the Memorandum of Agree ment for the period of the undertaking. See National Center fo r Preservation Law v. Landrieu, 496 F.Supp. 716 (D.S.C.), a ffd per curiam, 635 F.2d 324 (4th Cir. 1980). In our view, however, the EPA's obligations under it were extinguished by the completion of the sewer system., [a] In effect, the Citizens' Association asks us to rule that the obligation assumed in the agreem ent itself somehow satisfies the section 106 threshold requirement that an "undertaking" exists. We decline to do so. In our view, federal licensing or fund ing is required for there to be a statutory undertaking. The EPA's obligation under the Memorandum of Agreement is simply not sufficient. pliance with section 106 rather than with a Memorndum o f Agreem ent, and also be cause they involve continuous, ongoing fed eral projects. We agree with the EPA that the obli gation it assum ed by executing the Memo randum of Agreement lasted only through the life o f the original project. The lan guage of section 106, the case law inter preting that language, and its legislative history indicate that the obligations of fed eral agencies under section 106 relate only to an ongojng "undertaking." Although section 106 authorizes an agreem ent and although a resultant agreem ent is binding on the parties to it during the "undertak ing," the agreem ent does not, in turn, per petuate responsibility extending beyond the term o f the undertaking-- here the con struction of the original sewer project The judgment of the district court is, there fore, affirmed. AFFIRMED. , 1 .-V. The Citizens' Association argues that an undertaking exists in this case because the EPA has a continuing opportunity--stem ming from the agreement--to exercise au thority. See McMillan Park Comm. v. Nat'l Capital Planning Comm'n, 759 F.Supp. 908, 915 (D.D.C.1991) (undertaking exists where federal agency had veto pow er amounting to a licensure); WATCH v. Harris, 603 F.2d 310, 319 (2d Cir.) (under; taking exists where federal agency continu ously approved funds) cert, denied, 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 426 (1979); Morris County Trust fo r Historic Preservation v. Pierce, 714 F.2d 271, 275 (3rd Cir. 1983) (undertaking exists where federal agency had ongoing involvement with project). Our reading of these cases, however, leads us to conclude that they do not go as far as the Citizens' Association argues, largely because they consider com- ! Editor's Note: The opinion of the Unit- ' ed States Court of Appeals, Fourth ' Circuit, in Willis v. Celotex Corpora tion, published in the advance sh eet at this citation, 970 F.2d 1292-1301, was withdrawn from the bound volume be cause rehearing was granted and the ^.opinion withdrawn Aug. 7, 1992. The superseding opinion, filed Oct. 22, 1992, will be published. 1 i OO cn on WORM v. AMERICAN CYANAMID CO. Cile u 970 F J d 1301 (4th Clr. 1992) 1301 Daniel A. WILLIS; Carolyn W. Willis; H erm an L. M ensing, Jr.; F ran ces K. Mensing; Vincent H. Lewis; Ruby B. Lewis; Elwood F. H am let; L ois D. Hamlet, Plaintiffs-A ppellees, and Richard L. Taylor; Mary S. Taylor; Wil liam F. Cobb; Lillie P. Cobb; Roy B. Bass; Susan R. Bass, P lain tiffs, ..... v. The CELOTEX CORPORATION, D efen d an t-A p p ellan t, and O w ens-C om ing Fiberglass Corporation; E agle-Picher Industries, Inc.; Arm strong World Industries, Inc.; GAF Corporation; Keene Corporation; Standard Insulations, Inc.; Raymark Industries, Inc.; O w ens-Illinois, Inc.; H.K. Porter Company, Inc.; Fibreboard Corporation; Crown Cork & Seal Com pany, Inc.; Combustion Engineering, Inc.; Pittsburgh Corning Corporation, Defendants. Jam es T. WORM, Sr.; Jam es T. Worm, Jr.; Robert C. Worm, d /b /a Worm Brothers, d /b /a Jim Bob Farms, Co partners, Plaintiffs-Appellants, v. ' - AMERICAN CYANAMID COMPANY, a body corporate of the State of Maine, Defendant-Appellee, and Southern States Cooperative, Incorporat ed, d /b /a Southern States Cooperative, Incorporated--Preston Service, a body corporate o f the State o f Virginia; Southern States Preston Cooperative, . Incorporated, a body corporate of the State of Virginia, Defendants. N ational Agricultural Chemicals Association, Amicus Curiae. No. 91-1749. United States Court of Appeals, Fourth Circuit. No. 91-1446. United States Court of Appeals, Fourth Circuit. Argued Feb. 4, 1992. Decided June 19, 1992. Aug. 7, 1992. ORDER Appellees have filed a petition for rehear ing and suggestion for rehearing en banc. Appellants have filed a response to the petition.. The Court grants the petition for rehear ing and withdraws the published opinion of this Court filed June 18, 1992. Appellees' suggestion for rehearing en banc is held in abeyance pending further action by this Court. \ "' Entered at the direction of ju d g e Wilkins with the concurrence of Judge Russell and Judge Ward, United States District Judge sitting by designation. NUMBER SYSTEM Farmers brought action against herbi cide manufacturer seeking to recover dam ages for alleged injury to corn crop as result of application of herbicide to soybean crop o v e r -11 months earlier. Following removal from state court, summary judg ment for manufacturer was entered by the United States District Court for the Dis trict o f Maryland, at Baltimore, John R. Hargrove, J., and farmers appealed. The Court of Appeals, Niemeyer, Circuit Judge, held that; (1) state law providing for pay m ent o f dam ages based on failure to pr<> vide warning that is more elaborate or dif ferent than labeling required under the Federal Insecticide, Fungicide and Rodenticide A ct (FIFRA) would be preempted, but (2) federal law would not preempt stater imposed standard of care ,relating to. prod uct design, manufacture, testing or the 1302 970 FEDERAL REPORTER, 2d SERIES like, and wou... not preempt state tort based on breaph of federally imposed stan dard. Vacated and remanded. - 1. States =18.3 Preemption under the Supremacy Clause may be based on express or implied intent of Congress that federal law sup plant state authority in particular field, or on actual conflict of state law with federal law. U.S.C.A. Const. Art. 6 , cl. 2. 2. States =18.11 It is presumed that Congress did not intend to nullify state law unless contrary intent is clear and manifest, particularly where it is urged that a deep-rooted body o f law has been preempted in a manner that effectively repeals long-standing state law remedies. Insecticide, Fungicide and Rodenticide Act (FIFRA) would be preempted even though state law does not require insertion of spe cific warning on pesticide labej. Federal Insecticide, Fungicide, and Rodenticide Act, 24, as amended, 7 U.S.C.A. 136v. 7. Agriculture =9.13 States =18.65 , Labeling requirements of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) would not preempt state-imposed standard of care relating to product design, manufacture, testing and the like or reme dy allowing purchaser to rescind the sale of pesticide which does not live up to mer chant's representations. Federal Insecti cide, Fungicide, and Rodenticide Act, 24, as amended, 7 U.S.C.A. 136v. 8 . Agriculture =9.12(1) . States =18.65 3. States =18.5 Question of whether state law actually conflicts with federal law so as to be preempted involves inquiry as to whether it is possible to comply with both state and federal law or whether state law stands as obstacle to the accomplishment of the full purposes and objectives of federal law. - Prohibition in the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) against state labeling requirements "in ad dition to" those in FIFRA preempts the imposition of categories of labeling restric tions not provided by federal law. Federal Insecticide, Fungicide, and Rodenticide Act, 24, as amended, 7 U.S.C.A. 136v. 4. Agriculture =9.12(1) States =18.65 Congress did not, expressly or by im plication, preempt the field o f pesticide reg ulation or a more narrowly defined field by enactment of the Federal Insecticide, Fun gicide and Rodenticide A ct (FIFRA). Fed eral Insecticide, Fungicide, and Rodenticide Act, 24, as amended, 7 U.S.C.A. 136v. 5. States =18.5 If state law adopts or imposes a label ing requirement that is the same as federal statute, it will not be said to be in conflict with federal law so long as Congress choos es not to explicitly preempt the consistent law.. ^. 9. Agriculture =9.13 States =18.65 State duty to improve product or to maintain label in accordance with federal standards, and recognizing a tort based on breach of federally imposed - standard, would not be preempted by labeling re quirements set the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Federal Insecticide, Fungicide, and Roden ticide Act, 24,; as amended, 7 . U.S.C.A. 136v. .; Mark Ira Cantor, Cantor & Howard, P.A., Delverne A. Dressel, Baltimore, Md., argued, for plaintiffs-appellants. 6. Agriculture =9.13 . States =18.15 ': ` State ' tort law which would provide dam ages for failure to provide warning to consumers that s' more elaborate and dif ferent than that required by the Federal Raymond Gerard Mullady, Jr., Pipr & Marbury, Baltimore, Md., argued (Brigit A. McCann, on brief), for defendant-appellee. Lawrence S.' Ebner, McKenna & Cuneo, Washington, D.C., argued, for amicus curi ae. WORM v. AMERICAN CYANAMID CO. Cite u 970 FJ2d 1301 (4th CIr. 1992) 1303 Before WIDENER and N IEM EY ER ,. I Circuit Judges, and ELLIS, United States District Judge for the Eastern District of Virginia, sitting by designation. Jam es T. Worm, Sr., James T. Worm, Jr., and Robert C. Worm, who are engaged in commercial farming in Caroline County, OPINION Maryland, used a weed killer, known as "Scepter," on their soybean crop in the NIEMEYER, Circuit Judge: spring of 1987. Scepter is manufactured In this appeal we consider for the first time the exten t to which the Federal Insec ticide, Fungicide and Rodenticide A ct (FI- FRA), 7 U.S.C. 136-136y (1988), preempts state common law contract and tort actions which touch upon the field of pesticide packaging or labeling. The dis trict court, after considering carefully the only circuit decisions that had by then ad dressed the question. Papas v. Upjohn Co., 926 F.2d 1019, 1026 (11th Cir.1991) (holding that FIFRA preempts common law tort ac tions that are based on the alleged misla beling of a pesticide), petition fo r cert, filed, 59 U.S.L.W. 3825 (U.S. May 29, 1991) (No. 90-1837), and Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1541-42 (D.C.Cir.) (apparently reaching the opposite result), cert, denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984), deter mined that all o f plaintiffs' state common law tort claims and breach of 'w arranty claims for crop damages caused by a pesti cide are "preempted by FIFRA as a m atter of law." 1 ' Applying traditional principles of pre emption, we conclude that Congress did not, expressly or by implication, preempt the field o f pesticide regulation or a more narrowly defined field. N evertheless,, to the extent that Maryland law im poses.a duty to provide a warning "in addition to or by American Cyanamid Company and, like alm ost all herbicides that are made, sold, or used in this country, is subject to federal regulation by the Environmental Protection Agency (EPA). Scepter is registered with the EPA in accordance with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. 136-136y (1988). In early May 1988, just more than eleven months after the initial application o f Scep ter to the soybean crop by the Worms, they planted sw eet com on 74 o f the 114 acres which were treated with the herbicide. The Worms claim they considered the land to be safe for growing com at that time because of the instructions on the Scepter label. Those instructions provided: ROTATIONAL CROP RESTRICTIONS The follow ing rotational crops may be planted after applying SCEPTER at recommended rates in soybeans: ......,1. ; Four months after last SCEPTER application: Small Grains . :. Rice . i ;.. 2. Eleven months- after last SCEP TER application: Com Cotton Edible beans Grain sorghum Peanuts '* . "V different from" federal pesticide labeling Tobacco[.] standards, it is preempted by conflicting Materials distributed for the purpose of with federal law. Because plaintiffs' com promoting the sale of Scepter likewise rep plaint, however, alleges claims apart from resented that.com could be safely planted those preempted, we vacate the judgment eleven m onth s-after the -application, of and remand the case for reconsideration in Scepter, to soybeans.. These materials also accordance with this opinion. warned th a t "[cjrops other than soy beans, 1. Since the district court issued its decision, an additional circuit has spoken on this subject. See A r k a n s a s -P la n e Sr G u lf P a r tn e rsh ip v. Van W aters St R o g e rs In c ., 959 F.2d 158, 160 (10th Cir.1992) (adopting P a p a s view that FIFRA im plicitly preempts the field o f pesticide labeling); cf. C h em ic a l S p e c ia ltie s M frs. A ss'n. v. A llen b y, 958 F.'2d 941, 948-49 (9th Cir.1992) (avoiding question o f whether advertising requirements in California Safe Drinking Water and Toxic En forcem ent Act frustrate congressional purpose . of FIFRA, since com pliance with both state and federal provisions is possible). 1304 970 FEDERAL REPORTER, 2d SERIES such as c o tto i. jrn, or vegetables may be fore entered summary judgm ent in favor of injured by spray drift or other indirect con American Cyanamid with respect to all tact with SCEPTER." claims. The Worms now appeal. The Worms' crop failed. After the com was found to be below commercial stan dards for sale, the Worms chopped and plowed under the entire crop. Although American Cyanamid maintains that the corn crop failed for reasons other than the application of Scepter to the Worms' fields, II [1] The principles of preemption resolve conflicts between federal and state law on the authority of Article VI of the Constitu tion, which provides: the company admits that it has experienced This Constitution, and the Laws o f the what is termed a "carryover effect" with United States which shall be made in Scepter, i.e., traces o f the weed killer tend Pursuance thereof . . . shall be the su- to remain in the soil for a longer time than ' preme Law o f the Land; and the Judges originally predicted. This carryover can be in every State shall be bound thereby, devastating to crops, such as corn, which - any Thing in the Constitution or Laws of are particularly susceptible to destruction any State to the Contrary notwithstand by Scepter. Indeed, American Cyanamid ing. subsequently amended the label and pro motional materials for Scepter "to avoid any future problems of this nature." U.S. Const. Art. VI, 2. From this Su premacy Clause flows the well-established principle that federal legislation, if enacted Following the destruction o f the corn pursuant to the Congress' constitutionally crop, the Worms filed su it in state court delegated authority, can nullify conflicting against American Cyanamid and its distrib state or local actions. See, e.g., Gibbons v. utor, alleging that the loss of the crop was a proximate result of Scepter's carryover effect. In their complaint, the Worms al Ogden, 22 U.S. (9 Wheat.) 1 , 210-11, 6 L.Ed. 23 (1824). leged that the crop damage was caused by Preemption may occur on two bases, the American Cyanamid's negligence in (1) first o f which turns on discovering the in "failing to adequately test" its product, (2) tent of Congress. ^..Congress may expressly "failing to properly formulate" its product, provide that federal law supplants state (3) manufacturing Scepter "in non-conform authority in a particular field or its intent ity with its specifications and formula to do so may be inferred from its regulat tions," (4) marketing Scepter with knowl ing so pervasively in the field as not to edge that the label was inaccurate, and (5) leave sufficient vacancy within which any "failing to warn users" that it w as unsafe state can act. See, e.g., Rice v. Santa Fe to plant sw eet corn eleven months after Elevator Corp.,ZZl U.S. 218, 230, 67 S.Ct. applying Scepter to soybeans. The Worms 1146, 1152, 91 L.Ed. 1447 (1947). But even also complained that American Cyanamid absent an express or implied congressional should be held strictly liable in tort for failing to warn of the condition of its defec tive product and that Scepter did not con form to express and implied warranties by the seller. intent to preempt state authority in a field, state law is nevertheless preempted by op eration of law to the extent that it actually conflicts with federal law. See Wisconsin Public Intervenor v. Mortier, U.S. American Cyanamid removed the case to -- --, 111 S.Ct. 2476, 2482, 115 L.Ed.2d 532 federal court based on diversity o f citizen (1991); Pacific Gas & Elec. Co. v. State ship and moved for sum m ary judgm ent on the ground that the FIFRA preempts all of the Worms' claims. Reading their claims as essentially alleging that American. Cyan amid failed in its duty to warn o f a defec tive condition, the district court concluded that FIFRA, which provides no expressed Energy Resources Conserv. & Dev. Comm 'n, 461 U.S. 190, 204, 103 S.Ct. 1713, 1722, 75 -L.Ed.2d 752 (1983). . . [2,3 ). Several underlying presumptions have been developed to aid in discovering the intent of Congress when it has not private causes o f action for dam ages, clearly expressed it and to determine when preempts all of plaintiffs' claims and there a conflict between state and federal law WORM v. AMERICAN CYANAMID CO. CUe u 970 F J d 1301 (4lh Clr. 1992) 1305 exists. In the circumstance where Con dards and to increase the EPA's authority gress is claimed to have preempted by im-. for enforcement. See RuckelshaiLS v. plication a field o f law traditionally occu Monsanto Co:, 467 U.S. 986, 991, 104 S.Ct. pied by state law, our jurisprudence and 2862, 2867, 81 L.Ed.2d 815 (1984). The principles of federalism dictate that we pre amendments,' which were prompted by sume that Congress did not intend to nulli safety and environmental concerns, as well fy state law unless a contrary intent is as "a growing perception that the existing "clear and m anifest." Jones v. Rath Pack legislation w as not equal to [its] task" ing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, transformed FIFRA into "a comprehensive 1309, 51 L.Ed.2d 604 (1977) (quoting Rice, regulatory statu te," regulating the label 331 U.S. at 230, 67 S.Ct. at 1152). Particu ing, sale, and use of pesticides both in larly when it is urged that a deep-rooted intrastate and interstate commerce. Id.- body of product liability law has been On the subject o f FIFR A 's intended e f preempted in a manner that effectively re peals long-standing state law remedies, we should be fairly assured o f the congression al intent, because we m ust assum e that the fect on related or analogous state laws, 7 U.S.C. 136v, entitled "Authority of States," provides: ; (a) In general balance between federal and state law will A State may regulate the sale or use not be disturbed "unintentionally by Con o f any federally registered pesticide or gress or unnecessarily by the courts." Jones, 430 U.S. at 525, 97 S.Ct. at 1309; see also United States v. Bass, 404 U.S. 336, device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (b) Uniformity (1971). When we address the question of Such State shall not impose or continue whether state law actually conflicts with . in effect any requirements fo r labeling federal law, we resolve the more specific or packaging in addition to or different inquiries of whether "it is. impossible, to comply with both state and federal law" or from those required under this sub chapter. "w hether the state law stands as an obsta cle to the accomplishment of the full pur poses and objectives" o f federal law. See Silkivood v. Kerr-McGee Carp., 464 U.S. (emphasis, added).' There is no language that provides that FIFRA supplants state authority in the field of registering, using,' selling, or labeling pesticides, except to the( 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 exten t stated in 136v. When we consider, (1984). therefore whether in FIFRA Congress ex-` With these principles stated, we proceed to an examination of FIFRA, first to deter-' mine if Congress intended by its enactment' to supplant state authority in the field, and if not, whether state tort and warranty law conflicts with the federal regulatory scheme. . .. pressed an intent to occupy the entire field of. pesticide regulation, we find no lan guage to that effect, nor does the legisla tive history su g g est it. See Mortier, 111 S .C t at 2484 & n. 4. And the Congress has not failed to make such preemption clear when it desired to do so. See, e.g., Domes tic H ousing and Int'l Recovery and Finan - hi , ; ; i;. -[4] FIFRA, .enacted originally in 1947. as a. pesticide licensing and labeling stat cial Stability Act of 1983,. 12 U.S.C. 1715z-17(d), -18(e) (preempting any "State constitution, statute, court decree, common law, rule, or public policy"); Copy ute, "w as designed to work in harmony right A ct o f' 1976, 17. U.S.C. 301(a). with the uniform state insecticide, fungi (preempting rights "under common law or cide and rodenticide act which w as adopted statu tes o f any State"); Employee Retire-' in many States." S.Rep. No. 92-838, 92d ment Income Security A ct o f 1974, 29 Cong., 2d Sess. (1972) reprinted in 1972 U.S.C. 1144(a), (c)(1) (preempting all state' U.S.C.C.A.N. 3993, 3999. The Act was "laws, decisions, rules, regulations, or oth amended in 1972 to strengthen its stan- er State action having the effe c t o f law"). 970 F.2d--29 1306 970 FEDERAL REPORTER, 2d SERIES Out consideration of the question wheth er Congress, by implication, preempted state authority in the field adopting a comprehensive regulation leaving no room for state maneuver in the field need not occupy us long because the Supreme Court has already resolved the. issue. In Mortier, the Court stated: [W]e reject the position of some courts, but not the court.below, that the. 1972 . amendments transformed FIFRA into a comprehensive statute that occupied the field of pesticide reg u la tio n .... More importantly, field preemption cannot be inferred. ** * * * While the 1972 amendments turned FI FRA into a "comprehensive regulatory statute," Monsanto, 467 U.S. at 991, 104 S.Ct., at 2867, the resulting scheme was field beyond the applicable scope of its own legislation. On the contrary w e see in : 136v(b) only a statem ent o f the limits of" the federal objectives underlying FIFRA.! for purposes o f a Supremacy Clause analy-J sis, and not an intent to usurp all power,, even, in the narrow field of pesticide label,,J ing. Accordingly, w e must address wheth-*'' er, by operation o f 136v(b) and the-.Su--,' premacy Clause, state tort and warranty law is preempted because of conflicts with - FIFRA. To resolve that question we are: instructed to determine whether it is "im-; possible to comply with both state and fed,; eral law" or whether "state law stands as- an obstacle to the accomplishment o f the. full purposes, and objectives" of fed eral. law. Silkwood, 464 U.S. at 248, 104 S.Ct,. at 621. . not "so pervasive as to make reasonable the inference that Congress left no room IV for the States to supplement it." Rice, 331 U.S., at 230, 67 S.Ct., at 1152. * * ' * * * Section 136v(a) expressly prohibits a' state from permitting a sale or use of a pesticide that is prohibited by the federal FIFRA . . . leaves substantial portions of law, and 136v(b) prohibits any state la the field v a ca n t.. . . beling' requirement "in addition to or dif-1 I l l S.Ct. at 2485-86. And addressing, the specific interpretation of 136v(a), with re gard to whether that section reveals a grant of authority to the states consistent with preemption o f the field or an intent to ' leave open areas for state regulation' con sistent with an intent not to preempt, the Court concluded: The specific grant o f authority in ' 136v(a) consequently does not serve to ' hand back to the States powers that the statute had impliedly usurped. Rather, it acts to ensure that the States could continue to regulate use and sales even where, such as with regard to the ban-' hing of mislabeled products, a narrow ferent from" that imposed by federal law. " , . ..>- [5] Because there is no su ggestion in this case that federal law prohibits the sale, or use- of Scepter, w e conclude . that the. statute does not preempt any state law which .m ight regulate Scepter's sale and< use. With respect to labeling, however,) the federal law sets forth detailed require ments, see 40 C.F.R. 156.10 (1991), and directs that no additional or different label-.; ing requirement may be imposed by the states. 7 U.S.C. 136v(b). Thus if to com-ply with Maryland law, American Cyanam-y id m ust violate federal law, the state law, m ust yield. See Florida Lime & Avocado pre-emptive overlap m ight occur. Growers, Inc. v. Paul, 373 U.S. 132, 142- Id. at 2486 (emphasis added). ' By force of the same analysis conducted by the Supreme Court in Mortier to reach the conclusion that FIFRA does not' preempt the field o f regulating pesticides;' expressly or by implication, we hold that Congress also did not reveal an intent to 43, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248' (1963). Similarly state law must yield if in ' complying with it, American Cyanamidwould be frustrating the objectives and' purposes o f federal'law . Hines v. Davidowitz, 312'U .S. 52, 67, 61 S.Ct. 399, 404,85 L.Ed. 581 (1941). In this regard, our preempt any less broadly defined field. task is made easier by the passage of1 There is simply no evidence that Congress 136v in which Congress has expressed its', intended to supplant state authority in a view that only state labeling requirements; 00 O 1 05 WORM v. AMERICAN CYANAMID CO. 307 Cite as 70 F J d 1301 (4th Clr. 1992) that are "in addition to or different from" regulation requiring the insertion of a spe the federaJ standards will frustrate its p u r cific warning on the pesticide label. pose. Thus if state law adopts or imposes Whether the standard is imposed by stat a labeling requirement that is the same as ute or common law, a pesticide maker will the federal standard, even if the state law ing to continue to face the consequences of provides compensation or other remedies its failure to change the warning is perfect for a violation, so long as Congress chooses ly free to continue to market its product. not to explicitly preempt the consistent law, And just as there can be no doubt that the it will not be said to be in conflict with state legislation would constitute a "re federal law. See Silkwood, 464 U.S. at quirement for labeling," cf. Jones, 430 U.S. 256, 104 S.Ct. at 625 ("No doubt there is at 530-32, 97 S.Ct. at 1312-13, so too does tension between the conclusion that safety the conflicting common law duty fall within regulation [of nuclear energy] is the exclu the scope of 136v(b). As the Court of sive concern of the federal law and a con Appeals for the Eleventh Circuit stated in clusion that a State may nevertheless Papas v. Upjohn Co., 926 F.2d 1019 (11th award damages based on its own law of: Cir.1991), petition for cert, filed, 59 liability ... [but because] Congress intend U.S.L.W. 3825 (U.S. May 29, 1991) (No. 90- ed to ... tolerate whatever tension there 1837), "Allowing state common law tort was ... [w]e can do no less."). actions based on labeling claims would per [6] The Worms argue that state tort mit state court juries to do what state law, which provides a remedy for failure to legislatures ... are forbidden to do: im provide an adequate warning to consumers pose requirements for labeling pesticides." can lead only to the payment of damages Id. at 1026. and not to a required label alteration. The [7-9] The Worms also argue that even distinction, they argue, avoids a conflict situation. In support, they rely on Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1541 (D.C.Cir.) (holding that "if a state chooses, to restrict pesticide use by requiring that the manufacturer compensate for all inju ries or for some of these injuries resulting from the use of a pesticide,, federal law. stands as no barrier"), cert, denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984). if state common law suits can be termed labeling requirements within the meaning of 136v(b), all of the several specific tort and contract claims brought by them in this case are not inconsistent with those label ing requirements established by Congress in FIFRA or by the EPA in its regulations made pursuant to congressional directive. We agree. For example, the complaint al leges that American Cyanamid negligently failed to test Scepter to determine its We find the distinction illusory. If feder "carryover" effect on rotational crops such, al law mandates a specific label and per as sweet corn. Whatever might be said mits nothing additional or different, it can with regard to some common law actions, hardly be urged that a state tort duty we fail to see how a state-imposed standard based on a warning requirement that is of care relating to product design, manu more elaborate and different does not con facture, testing, and the like, can qualify as flict. The manufacturer in that case cam' a labeling requirement under FIFRA.. not comply with both. Implicit in the Likewise, where a state enables a purchas Worms' argument is a notion that common er of goods wholly or partially to rescind law tort duties are not regulatory. . But the sale of a pesticide which did not live up surely a jury verdict resulting from a pesti to the merchant's representations as to cide manufacturer's failure to warn of the' quantity, quality, or performance, then, in dangers of the product has an effect no many circumstances, it cannot be said that different from, a legislatively enacted state the rescission is a regulation of labeling.2 2. With some limited exceptions, 7 U.S.C. 136(p) defines "labeling" as all "written, print ed, or graphic matter on, or attached to, the pesticide or device or any of its containers or wrappers" as well as "all other written, printed, or graphic matter--(A) accompanying the pesti- cide or device at any time; or (B) to which reference is made on the label or in literature accompanying the pesticide or device." While this definition is quite broad, it would not ap pear to include general advertising statements not made in'connection with a particular sale. 1308 970 FEDERAL REPORTER, 2d SERIES Finally, important to our Supremacy While it may seem unlikely that new cate Clause analysis is the fact -that FIFRA gories of labeling requirements could bei does not purport to preempt every require established, given the breadth of the EPA's- ment for labeling. Only state'labeling re labeling regulations in force today, see 4Q. quirements that are "in addition to or dif C.F.R. 156.10 (1991) (regulating contents;) ferent from" those federally established re legibility, prominence, and, in certain cases,| quirements are forbidden. See 7 U.S.C.. actual language to be used on pesticide 136v(b). While we have not previously labeling), it must be remembered that FI- addressed the scope of this language, in FRA, as written, contained few actual pes Jones, 430 U.S. at 528-32, 97 S.Ct. at 1311- ticide labeling restrictions. See generally,: 13, the Supreme Court considered an inter 7 U.S.C. 136-136y. The need for label-, pretation of a similar preemption provision ing and packaging regulations was thus; in the Federal Meat Inspection Act (FMIA), left largely to the discretion of the then, 21 U.S.C. 678. Noting that 678 prohib newly established EPA. See 7 U.S.C.- its the imposition of "marking, labeling, 136w. With regard to the types of label packaging, or ingredient requirements in- ing restrictions which do exist, we conclude addition to, or different than, those made that the states may regulate so long as any under" the FMIA (emphasis added), the state law is not "different from" the feder Court invalidated a California law regulat al standard. While we have not been ad ing meat labeling. Jones, 430 U.S. at 532, vised that Maryland has done so legislative 97 S.Ct. at 1313. However, the Court did ly, at oral argument counsel for the Worms not reason that the mere existence of a observed correctly that if the Maryland, state label regulation offended the "in addi common law recognizes a tort based on, tion to, or different than" preemption breach of a federally imposed standard, the, clause. Rather, it held Worms would be able to pursue that claim the state law's requirement--that the la-. without conflicting with federal law. bel accurately state the net weight, with: We find support for our-strict standard implicit allowance only for reasonable in determining whether a conflict exists- in manufacturing variations--is "different the recognition that FIFRA does not explic than" the federal requirement, which itly create a federal right of action to com permits .manufacturing deviations and pensate persons who may be injured by variations caused by moisture loss dur-, misleadingly labeled pesticides. For "[i]t is ing good distribution practice. difficult to believe that Congress would,. Id. at 531-32, 97 S.Ct. at 1312-13. Indeed, without comment, remove all means of judi if the sole fact that a state chooses to cial recourse for those injured by illegal.1 regulate labeling, in any manner, were to conduct." Silkwood, 464 U.S. at' 251, 104 constitute a state labeling requirement "in- S.Ct. at 623; see Baker, Watts & Co, v.^ addition to" the federal scheme, thn the Miles & Stockbridge, 876 F.2d 1101, 1108. "or different from" language would be (4th Cir.1989) (en banc) (rejecting statutory., read completely out of 136v(b).'' Such a' construction of federal securities act that; reading would violate commonly under might preempt contribution under state, stood principles of statutory construction/ law), - ., : .: See, e.g., United States v. Hood, 343 U.S.p ''In summary, we hold that the language1 148, 151, 72 S.Ct. 568, 569,' 96 L.Ed.'846 of ;136v(b) manifestly ordains the preempt (1952) ("fW]e should not'read'out what as a tion of the establishment or enforcement of matter of ordinary English speech is in.").* any Common law duty that'would impose a We therefore construe the prohibition labeling requirement inconsistent- with against state labeling requirements "in ad those established by FIFRA, 7 U.S.C! dition to" those in FIFRA to preempt th' 136--136y; or:the EPA in its regulations,' imposition of categories of.labeling restric 40 C.F.R. 156.10. If to avoid breaching a- tions not provided by the federal ' law. state, duty a pesticide producer is required See New- York State Pesticide C oalition v. Jorling, 874 F.2d 115, 120 (2d Cir.1989) (noting EPA's position that " `labeling' comprises those materi- als designed to accompany the product through th e stream o f com m erce to the end user'*). s 00 05 i>3 IN RE SERRA BUILDERS, INC. Cite u 970 FJd 130 (4th Clr. 1992) 1309 to revise its pesticide labeling, then the ignation, held that appeal was properly dis duty, common law or otherwise, is preempt missed when debtor filed its designation of ed by 136v(b). Yet if the state imposes a items to be included in record on appeal 15 duty to improve a product or to maintain a days late. label in accordance with the federal stan dards, no conflict exists and FIFRA does Affirmed. not preempt. Because the district court appears to have taken a broader view of FIFRA's preemptive effect, we vacate the judgment and remand for individual reconsideration of the state law claims in accordance with this opinion. VACATED AND REMANDED. 1. Bankruptcy *=>3778 District court has within its discretion the power to impose sanctions including dismissal upon appellant for not complying with procedural requirements of Bankrupt cy Rules. Fed.Rules Bankr.Proc.Rule 8001(a), 11 U.S.C.A. 2. Bankruptcy =>3778 . | !Y HUMBER S YlliH ) In Re: SERRA BUILDERS, INCORPORATED, Debtor. SERRA BUILDERS, INCORPORATED, Plaintiff-Appellant, v. JOHN HANSON SAVINGS BANK FSB; J. Ronald Roth; Carol P. Roth, Defendants-Appellees. No. 91-2241. District court properly dismissed debt-` or's appeal from bankruptcy court order,' where debtor filed its designation of items to be included in the record on appeal 15 days after dat required by Bankruptcy Rule, debtor never requested extension be fore time had passed to file designation,' and debtor's only explanation for untimely filing of designation was that its attorney was out of the country. Fed.Rules Bankr.' Proc.Rules 8001(a), 8006, 11 U.S.C.A. James Paul Koch, Baltimore, Md., ar gued, for appellant. Frederick Charles Leiner, Tydings & Rosenberg, Baltimore, Md., argued (Paul. D. Trinkoff, on the brief), for appellee Roth. United States Court' of Appeals, Fourth Circuit. Bowen P. Weisheit, Jr., Baltimore, Md.,c argued, for appellee John Hanson FSB. Argued April 6, 1992. Before WIDENER and LUTTIG, Circuit Decided June 22, 1992. Judges, and WARD, Senior United States District Judge for .the Middle District of .. North Carolina, sitting by designation. ;; Chapter 13 debtor moved to avoid fore closure sale of real property as a prepeti tion fraudulent transfer. The United OPINION States Bankruptcy Court for the District of. HIRAM H. WARD, Senior District ' . Maryland granted summary judgment, for Judge: . . , 4 :;" defendants, and debtor filed notice of ap .This appeal arises from the .district, peal'1 The District Court, Edward S. Nor-' court's decision to grant appellees' motion> throp, Senior District Judge, granted defen to dismiss appellant's appeal.of a decision, dants' motion to dismiss appeal, and debtor in the United States Bankruptcy Court fori appealed. The Court of Appeals, Hiram H. the District of Maryland. In granting ap Ward, Senior District Judge, sitting by des- pellee's motion, the 'district court found* Ia. * I 14 Worm v. American C yanamid Co. 3 5 maintain a label in accordance with the federal standards, no conflict ?o* exists and FIFRA does not preempt. I Because the district court appears to have taken a broader view of FIFRA's preemptive effect, we vacate the judgment and remand for individual reconsideration of the state law claims in accordance with this opinion. VACATED AND REMANDED a> ro o> <o CD eft --o 05 SD CO Toxic Chemicals Litigation Reporter BURKE uhxtso states d is t r ic t court ,F 1C K D -arwaaMTOfWS .u.a-wstweroousTAO.*-' EASTERN DISTRICT 0* NB YORX - i j & L M l S 1992 HARY ELLEN BURKE and KEVIN BURKE, in f a n t , TUMM. By t h e i r a o tb e r an) n a tu ra l guardian, LORRAINS A. BUSKS, LORRAINS A. BURKE, i n d i v i d u a l l y and KEVIN BCRXS, in d iv i d u a ll y , NaMorandva .and o rd e r P lain tiffs, CV 0-334 -a g a ln st- TBS DON CHEMICAL CO., KENCO CSSKXOU. t MEO. t c o w ., and core markets, n ie .. D efen d an ts. ^ Published by Andrews Publications, P.O. Box 1000, Westtown, PA 19395 APPEARANCES P o r t h a V la ln tiffiiM, Stephan Saidnar P iah er 1 Saidnar 403 Dear P ark Avanua B abylon, NT 11702 ^ 't 6 / G l - 6 7 0 0 0 Tor th a DefendantsI P rad erick T. G alth ' K cCartar i English Ona World T ra d a 'C a n ta r, S u ita IBIS Raw York, Mew York 10040-0343 A tto rn e y s t o r Dow Chaaio&l Xaren B.,Rabinowit* B bcon,,JB iryrave, Davan s t Doyle O J w art Avanua Oaxaen C ity , Nay York 11630 A tto rn a y a t o r Keiloo Chem ical and Cora M arkets July 23,1992 14______________ Worm v. American C yamamid Co. _____________ maintain a label in accordance with the federal standards, no conflict exists and FIFRA does not preempt. Because the district court appears to have taken a broader view of FIFRA's preemptive effect, we vacate the judgment and remand for individual reconsideration of the state law claims in accordance with this opinion. VACATED AND REMANDED CO cn ~ W " ------- BURKE tn t r r s o states d is t r ic t court EASTERN DISTRICT or NBW YOXX TarwI aCaanEo mDe .u.a.onrcounra.* ____1-^dxJUl.l 1992 MARY BLUBN BORKE And KEVIN BURKE, i n f a n t s , b y fc b a ir M otherland n a tu ra l guardian, . LORRAINE A. BURKE, LORRAINE A. BURKE, i n d i v i d u a l l y and KEVIN BORKE, In d iv id u a lly MIAU, t - Maaorandua .and o rd er P lain tiffs, CV 0 -3 3 4 -agalxiat- THE DOW CHEMICAL CO., KENCO CHEXICAIi ft NTS. CORN., and CORE MARKETS, IN C ., ' Defendant*. ---2 APPEARANCES r o r th a V l a i n t i f fi,a t Staptaan S aidnar I l d a r a flsidnax' 403 D aar P ark Avenua Babylon NT 11702 V< i'G l~ 6 O 0 Tor th a Defendantsi F rederick T. E aith ' H cCartar a English Ona W orld T ra d * 'C a n ta r, S u ita 1B19 New Y ork, Mew York 10048-0363 A tto rn e y f o r Dow C honleal Karen B ., Rahinnwit* N ixon,, j a r g r a v e , Dev a n s c Doyle 3ft J f w a rt Avanue C ardan C ity , May Y ork 11630 A tto rn e y s f o r Karioo C h a alo al and Cora M arkets ; .I!.- 1 nsr rt> 3 n p in r 0Q P OS3 n> *X3 O >1 rt> Copyright 1992 Andrews Publications Ja c k B. W e in stein , D i s t r i c t Judges The claim i s t h a t two a h ild re n a re b r a in damaged be'aauae t h e i r m other was exposed to a household in s e c tic id e w h ile p reg n an t w ith them. R elying on s ta te t o r t law , th e p a re n ts b u s bo th th e m anufacturer of th e m otive in g re d ie n t and o f th e f in a l p r o d u c t. D e fe n d a n ts move f o r summary ju d g n e n t on t h e g ro u n d t h a t th e s u i t i s preempted by th e F ederal In s e c tic id e , Fungicide and R o d a n tic id e A ct (FIFRA) and c o rre s p o n d in g r e g u l a t i o n s . S ee 7 U .S .C . I I 136-136y; 40 C .F.R . | 153-86 (1990). FIFRA r e q u i r e s a l l i n s e c t i c i d e s t o be r e g i s t e r e d w ith t h e f e d e r a l E n v iro n m en tal P r o te c t io n Agency (BPA) EPA i s r e q u ir e d to review inform ation supplied by re g is tra n ts concerning th e e f f i c a c y and e n v iro n m e n ta l e f f e a t s o f ea c h i n s e a t i c i d e . EPA m ust a l s o ap p ro v e a l l i n s e c t i c i d e la b e ls and p a c k a g in g . U nder FIFRA, EPA's a u th o r ity o v er la b e lin g i s e x c lu s iv e ! s t a t e s a r e b a rre d from im posing fu rth e r la b e lin g requirem ents. The is s u e i n th e o a s e i s w h e th e r th e s e an d o t h e r FIFRA p r o v is io n s p r e a lu d e common law a c tio n s a g a i n s t i n s e o t i a i d e m anufacturers and r e t a i l e r s . The q u estio n is p a r tic u la r ly Im p o rtan t and tim e ly s in c e th e U nited S ta te s Supreme C o u rt h as ju s t spoken on th e issu e o f to r t preem ption in C loollone v. ftl g q e t t Gpoup. I n c . . ___ U .S. ___ , 60 U.S.L.W . 4703 (Ju n e 3 4, 1992). For th e reaso n s In d ica ted below, none o f th e s t a t e law t o r t a c tio n s are preem pted in th e ir e n tir e ty . The m otions fo r summary judgm ent th e r e f o r e m ust be d en ied . 3 16270 A ll R ights Reserved Toxic Chemicals Litigation Reporter I , FACTA D efendant Dow C h e a ic a l Company p ro d u ce s o h lo r p y r i f o s , o ld u n d er t i u t r a d e n u n Duraban, Duraban h u bean r e g is t e r e d u nder FIFKA a a a p e s t i c i d e s in c e n i l and l a packaged l a c o s ta I n a r a b o arin g an CPA-approved la b e l. Duraban la n o t an oadnee" p ro d u c t l Doy s e l l a I t e x c lu s iv e ly t o I n s e c t i c i d e e a n u f a e tu r a r e . D efendant Xenoo M anufacturing, a s u b s id ia ry o f d efe n d an t Core M arkets, I n c . , n sss Duraban and a s o lv e n t, X ylene, in n a n s fe a tu rin g "Rid-A-Bug F lea a r ic k K i l l e r . " Rid-A-Bug lb s o ld both to p ro fessio n al ex teraln ato ra and d lra a tly to eonsuners In hone d isp e n se rs to combat fla a and tic k I n fe s ta tio n . She produc t I s r e g i s t e r e d w ith CPA `and s o ld w ith an XFA-eppreved l a b e l t h a t in clu d es d ire c tio n s fo r Indoor and outdoor uaa, a sonsy-back gu esen tea, and th s follow ing warnings i CADTIOH Precautionary Statem ent* Human (A D oneetla A n lsa l) Hata r d a Kay b a f a t a l i f awallowed. In h ale d o r ab so rb ed thro u g h k in . Do n o t b r e a th e ap re y a i r . Do n o t g e t I n to e y a s , on' s k in o r c lo th in g , xn oaae o f co n tact w ith sk in o r eyes., flu s h w ith w a te r and g e t and l e a l a t t e n t i o n f o r e y a s . Wash w ith soap and w ater- a f te r handling and before e a tin g o r snaking. A void o o n ta a ln a tio n o f fs a d and f o o d s tu f f s . Do n o t ap p ly o r allo w t o d r i f t to a re a s occupied by u n p ro tec ted fauaans o r b e n e f i c i a l a n i a a l s . Do h o t a llo w c h i l d r e n i n t r e a t e d a r e a s u n t i l s u r f a c e s e r a d r y . Do n o t u aa In e d i b le p ro d u c t a r e a s o f food prooeeelng p la n ts, re sta u ra n ts, and o th er areas w here fo o d i s e o a a e r e ia lly p re p a re d o r p ro e e s e e d . Do n o t use in serv in g areas w hile food i s exposed. Environaentsl Kaeards T h is p r o d u c t i s t o x i c t o f i s h , do n o t o o n ta k ln a te w a te r by Oleanlng o f equipment or disposal o f w astes. P h y sical o r Chemical Hazards D is p o s a li Do n o t re u s e empty c o n t a in e r . Wrap c o n ta in e r and pub in tra s h co lle c tio n . 3 e_ *< KCO> Toxic Chemicals Litigation Reporter Published by Andrews Publications, P.O. Box 1000, Westtown, PA 19395 July 23,1992 So *s Kl % Gm i ku I * 3 ia 5. is2 aM 5 > ufl -H J*3 u0 &s ? 3 a8 E1 I * 3a I 3o i? s | i | * iH V 9fl 9 -31 ?fll CP fl 5fl fl> K H>1 fm:l \o &3 i J sJfrlii C i fl A g 3 O8 S 3 8 1Rrl -5 ffll fOl M O 2s9 3G > 3fl Sft 4f9l 3e 4 O 3a 1g 4* . a& 3 fPri 3 3fl fl 21 I 1&o s 3 A "9 2 35 M fOt* fl fl 1 3 8o Copyright 1992 Andrews Publications 16271 All Rights Reserved 865 O-Pi Toxic Chemicals Litigation Reporter Published by Andrews Publications, P.O. Box 1000, Westtown, PA 19395 iJuly 23,1992 -I I*co ja s|l i P ao ia* TaJ s Om A S3*"4 2fcl : li y'sl -H -4 Mi K * ? T TfCJ to 2A ,3 >ai u a ir COBk SK . ..s- a M 1 :: m IK ** S 4O a d ^ Il %* o i t^CoB * 1 s? :3 1I .1 !2a *B ? s 0 V ?oa gi itoo H c a dJ . *aa Copyright 1992 Andrews Publications M 0Ot O o C* tBao 16272 Ia to l Iil V 3 . eto C U o Ss ri h to 8C. Io *4ea*o 40> ftaoirt a1 a 3 f 54f1i 1 I * 5 " . ? 21 *<4 i 8taot 1 a9 S Si I J8 866 AURights Reserved MS Toxic Chemicals Litigation Reporter Published by Andrews Publications, P.O. Box 1000, Westtown, PA 19395 July 23,1992 11 I O i 9O af 3 *O4 Is 1400* 4o fe a 5 %fl o JS3 sO' f ff<-lt ft i 2i 1 o fl ?4> " "8H I? d: D 1fe fe -- if)l B 5 4O3 S 3 fl 'OI Copyright 1992 Andrews Publications o4 1 fl g3 I 2^ > 'f 3 *3 : 5 4> f ft fe 6 fl fe. ri 3 * sfe * M Ifa0l *i IH O Sa -B1 B a5o-<H0 U .y uoM o 1 2>i fl S 5< -1 8 fl ^e* o--ft e o 1 3H fnml oc 's f l 9 L M r-t 3 o *M" AMMO5 TI 3 * T s HO fOl flr. S 3 o* 1mo 0&a & i so 1 5 * !SS.5 ,:,j Hjai_l_l'5s 0fl 01 j> c Ha4 tsO4 -Tt3 9a J mfl ` +^ 4J T art Aa H %i S- fOl fl o 4 3 * uo 8 *f`3 -y io i4f0l s0 fl l-SST l S8*1sl ,,SSS*. S S-iS S g ? fl SS t ti t5 no * i i o 5 u3 fl yO' a a7 fl 4 fcl -fHHol fl f9l -'fl 9S n-5SS* 5 s as 4 i : * 14>* t S .-gg " a^S lS S * o Mm*. -*t* . 4m, 0 9Q Qg o *y 3 -o. ? f e !U i *I 3 3 i. H3O Mm a a 1 * i- p *- OV n8 a ** i i M5 1 : 867 16273 All Rights Reserved Toxic Chemicals Litigation Reporter Published by Andrews Publications, P.O. Box 1000, Westtown, PA 19395 July 23,1992 ^ 1007 A nrfm m Publications orl 868 All Rights Reserved Toxic Chemicals Litigation Reporter Published by Andrews Publications, P.O. Box 1000, Westtown, PA 19395 July 23,1992 I4e ?m . %*mt* s Dilsal f 5s -.Hs S i0L-P43. . H St fJfs^Ss 5 * n ft_ 'g a 40 r4 Hr a3 oi coa 3t D I !i 4 i H *Htt MO 3n ** r> oI 3 . 3 S Mm9 1 1 * 3 33 G I 2i0 14 4O 'S P s 03 ! I 8lo4 30 & 3 9 8 3 X a. 8 -0M 3 *t00P4o iH1 c -4rJ 1 3 to 0 g 3 3 p t* 3 i *!-3 n u M * S 3 2 1 Copyright 1992 Andrews Publications 16275 tti 869 CHiFt- \ All Rights Reserved All Rights Reserved 870 17 a 4p0> H -H >gtH > i S 3w- SS0__O0O8._-335fo"0Oi. 'S " 3 -Se. 3fl o -> >i i0 5ao *00* s l 16276 i Le e ' >585 OeHaAOc Oc**cOmO Cet so +ue>5eoo g i1 55 8.-8. 0B --HM AO-AoH 4J B um 4O hg C-H MOCO S O O *H0 0-000 > H & A aaM b j0q A0sS B A>O H H040J 3. S 04- OM O<nl no* *0 h f* to a <o cc Vu0 jmcj > Copyright 1992 Andrews Publications I t 1 p o s s i b l e f o r I n d iv id u a ls w ith s ta n d in g t o p a t i t Io n EPA t o e a n a a l o r s u s p e n d r e g i s t r a t i o n s . Son E n v iro n m e n ta l D efen se Fund y . H a r d in . 428 F .2 d 1093 (D.C. C i r . 1970) ( g r a n tin g EDP s ta n d in g t o c h a lle n g e EPA d e c is i o n n o t t o c a n c e l DDT. r e g is tr a tio n s ) ; see a lso N atio n al c o a litio n A gainst M isuse o f -HC wHf l A^0 O + J 0 SB H 00 fi+ l C O C M M-H S>.n 0 Pi C 0 1I fi 1-1 O 0C < 0 0 u H <*Vi Pi f * 3 !. u o 4o uo R egulations lssuad by m oon tro l in eonaidarabla d a t a il th a f c t s and c o n te n t o f p e s tic id e la b e ls , flee 40 O.Y.R. I ISO. 10. Required warnings ere sp e c ifie d according to th e degree to which in g estio n o r Oontaot w ith a p e stic id e I s tn x io . 10a 196.10(h). These warnings a u s t include precautionary statem ents shout ris k s Toxic C hem icals Litigation R eporter Published by Andrews Publications, P.O. Box 1000, Westtown, PA 19395__________Ju ly 23,1992 Toxic C hem icals L itigation R eporter Published by Andrews Publications, P.O, Box 1000, Westtown, PA 19395_________ July 23,1992 OM m i 1i lu a A +0 1 >8a 8 4* a 3 o4 V 3 8 3 CS ; * : i3 fs o a 4 -* t * I a m ;? 3f H\ U tst 4* 2 3 14 -H9 E 3a %* i 3 ^ 4> MA * tHH 3. 341 3 C 3a f* I 3 9 1Q *8 Ea 8o oao * - 't 2-* 8 0 1 1 3M4* c 41 3? ; s 0 <W m> . <s 4 S ^b a 3- 8 8 t : I8 A t s& 3s $ ! ! IW V V 4* ia3 13 i; i *s * -9 I.c -8 * 8 8 B DQ I i 5 ; 5- I i.-5-IHj33 i 3 ! i Hs 1 S I i i s I$ e .3 3 7e 2 H>4% 4-J( a 8 1 u z 3 . r** O+cH> .i * ,8 8 5 ti 2 8 3 ~ * s! m 3 a fi a - - ~3 o*3 4_< H a9 O CD D i 11 l i l i D j? 1 O .1 a HQs , : 1 &s i l i 3 .a 34 S aaa 34* g I 4m* 1 I44 3 a 8 a 1* 3a &M Si bo l a a 5 Daa ! I aa H m H r4 a 3 8 A 3. 34aa^ 1 11 A 13 3 3 'S 3f-l aa I >i 4s ftJ i i li 5 1 10O Aa5 4*Jf r9at H 5r 5 1n 1 1 a u 1 s a 1 " s 9 a 8 a i 1 2a a 1{1 f 3a i a H 4a3 - 0 4* -H Q 4J C 0 41 44 a - 2 111 3 J 23 MO swH O8 a *ao8 8 ** r* -& 8 2? '*fMi o 3 H 4> 5a !%4 s so 3 3 l l U w *a4 8 ? 2n ~ ots 3 3 484 baOaa s-- 2um 5 1r 9Ia So 3a r-t 3 I s H * *1ia 3 3o _ 4> 4> &A 3A wS a ' io4 l b 8 H aa 3 3 8 a- I &IM A 8 3 'm 8S a 4J eo i -1*' 3 m m 1 d, 8a a8 8 3 1 I A 871 Copyright 1992Andrews Publicatioiis 16277 All Rights Reserved Toxic C hem icals L itigation R eporter Published by Andrews Publications, P.O. Box 1000, Westtown, PA 19395 Jly 23,1992 ^ Ilia Court reached a aoaevhat d iff ra n t ra o u lt ln analyalag Cipollone concerned th a praaaptlv* a fia o t on s ta to oomon ^ *.--I-- ---- T>..U1^a {n(i i 9 7 fi i 4 a0 4* A 1m ? $ 1 a % h0c 1 o 34 u 1* 3 I 3 ss 1s, 1s 872 D 'loa AURights Reserved C opyright 1992 Andrews Publications m-- m an u factu rer was under a " s ta te lew duty to d ie a lo e e scb f a c t s through channel o f communication o th e r than a d v e rtis in g o r p ro m o tio n ," no preem ption was found I d . a t 4709- 10. f i n a l l y , th e Court held th a t, sinoe express w arranties are lnposed by th e w arrantor ra th e r than th e s ta te , p e titio n e rs warranty o la ls s were n o t preem pted. I I I . APPUCATXOtf or XAW TO FACTO &, F a ilu r e t o Darn claim s P l a i n t i f f s ' f a i l u r e to warn claim s m a in ta in t h a t d e fe n d a n ts fa ile d to determ ine I f th e ir produats were harmful to fe tu se s and t h a t t h e p ro d u a ts le ak e d p ro p e r w arning n a tio e a . Defendante oontendthat th e s e alaim e a r e e x p re s s ly preempted u n d er Motion 136v(b) b e c a u s e , i f p re sse d s u c c e s s fu lly , th e y would constitute state-im posed ."requirem ents fo r Labeling or packaging in a d d itio n t o o r d i f f e r e n t ir o n th o s e re q u ire d [under F1FBA] > ___ A lt e r n a t i v e l y , th e y c la im t h a t FIPRA Im p lie d ly preem p ts su ch claim s. 1 . Case lew A number o f f e d e r a l d i s t r i c t and a p p e lla te c o u r ts h av e r u le d on th is issu e w ith varying re su lts. F arebaa V, Chevron Chen. OO.. 136 F .2d 192 (D.C. C T .), p a r t, d e n ie d . 4<'Q.Q. 1062 (19B4), rem ains a le a d in g case, mie C ourt o f A ppeals f o r th e D is tr ic t o f Columbia C irc u it found no p ree m p tio n when a ffirm in g a ju r y v e r d ic t h o ld in g a m a n u fa c tu re r 20 00 O 16279 A ll R ights Reserved o f t h a h a r b ic ld a p a ra q u a t 1Labia lindar M aryland la v f o r f a l l a r a to v an i o t poaalbla long ta ra haalth affao ta f r m axpoaura to i t a p ro d u o t. ' Sxpra'aa p r a a a p tlo a vaa b a n t baeauaa n o th la g I n rXPA apraaaly barn a ta ta oocnon la v t o r t ac tio n a . I d . e t 194a . A ocsceon la v r i g h t o f rec o v ery , th a o o u rt raaaonad l a n o t a requlranant" v ith in th a uaoning ot n n i ' i prem ption alan a a baoauaa *not q u iv a la n t t o a d i r a o t r a g u la to r y c o s n a n d ." d . afe 1541. Sha co u rt of lppaala alao rejao tad tha contention th a t th a ra Vaa an l a p lie d p raa n p tlcm . Sha fa d a x a l in a a t a t a la v a d i d Mot a c tu a lly e o n f lio t ainoa Maryland la v d id n o t ra q u lra d fen d an t to changa i t a la h e lin g fo r produata auld in Maryland, b u t odly to pay fo r in ju ria s causad by ita fa llu ra to a n . A fter tha v e rd io ti d aCandant oould e t i l i ooaply v lth fe d e ra l la b e lln g lavai l t vea l a f t v ith th a choies o f n o t m ailing I ta prodoet la M aryland, auhaifcting a nv la b e l f o r IPA a p p ro v a i, o r o o n tlim ln g to a a ll v lth th a ed lstln g lab al a t th a oeat of paylag daaagea. X0L a t 134S. r i r a l l y , th a o o u rt h e ld t h a t th a j u r y v e r d i c t d id n o t stand ln th a vay e f aahiaving th a f a l l purposea o f Oongreae. Tha purpoaan o f th a ta tu ta , th a o ourt raoaanadi in clu d a p ro tectio n o f e itia e n s f r a obaaioal hasarda, a fonction m fqrtharad by th a ju ry v e rd ic t, xde a t 154a. rarabaa anviaionad n m and a ta ta to r t la v aarvlng eorqplanantary C unatlona. XPA'a d te rm in a tio n t h a t a l a b a l l a adequata" f o r purpoaea o f FEPBA v aa deened n o t t a e f c ttle th a la a u a of adaquaoy for puzpoaao of a t a t a tort la v on tha ground ' ai ;\ !i r ;- :;r, :. m . -`l* ' l Z Toxic Chemicals Litigation Reporter Published by Andrews Publications, P.O. Box 1000, Westtown, PA 19395 July 23,1992 Toxic C hem icals L itigation R eporter Published by Andrews Publications, P.O. Box 1000, Westtown, PA 19395 July 23,1992 III H 8s : . s I %s . ; n*9 * gO an 5 It in st ; I -A 8 31 H rO> 5srH *jq 3 3 H 31 si i JA 2fa c g 5 : ! ! *a* 1 !I I ? d 3O 3? c ? ? i ! i?*S i t uf 11 sI S 0 n o H j%I4-' 3 3 2 : 5 & I ft " oi 8 C H 3 2 wO-i , Qh ' U0 9 A G 1P> ? 1t I I 8 I a5 ! <13 e n faO * 5, I a0 *UO I 20 ! 1 f i I 3 - t HO *31 2 1a 5 a *.J 3 S 3 Jj 3 ca M 121 a S ?2 s as S oeH <eH. s 2 0 2 8 : s * s "o . oc 1I 3 * >. O5 S S3 B H s0 u ? f 1 l n2 S93 * Ii 2 s 2 ^ 2 foa a fk 5 1.3^ 0 s 60 H I " * 8 7 5* 4 i l l I s 3 wvsi 3ms i Copyright 1992 Andrew Publications 16281 All Rights Reserved A ll R ights Rei 16282 C opyright 1 9 9 2 A ndrews P ublications th s i t f l n e t, hcveVsr, n rn A b are s ta te * f r a Imposing As a lre a d y p o in te d o u t, however, F in tA 's preem ption c la u s e n g u i n a s n t i 11 ( r a t h e r th a n from r e q u ir in g s t i t a a n v U ) , a u sa g e sh a re s sene o f th e c h a ra c te ris tic s o f th e narrow er 1965 s o t 's which th e eln o iio n a co u rt took to have a broader preem ptive e f f e c t whan i t c o n s tru e d th e 1969 a c t c o n ta in in g a ban oo any preem ption c la u s e . ^ In a d d itio n , u n lik e th e more r e s t r i c t i v e 1969 o ig a re tte law, .riF M provides a general savings d a n s e e x p lic itly s ta te "requirem ent" w ith resp e ct to "ad v ertisin g or promotion" o f au th o risin g each s ta te to "reg u late th e s a le o r usa" o f fe d e ra lly oignre tte d re g is te re d p e stic id e s w ithin i t s bo rd ers. 7 U.8.C. | 136v(a) According to fliSfllifiDSr fo r purposes of th e 1966 c ig a r e tte While oourta Must o rd in a rily co n stru e p re e a p tla n c la u se s lab elin g levs a Fyrebea-llk a d ie tin o tio n must he drawn between neexew ly, th e y Must be e s p a o ia liy c a u tio u s whan C ongress I t s e l f e te te regulatory law and s ta te t o r t ' law with only th e former being p reemp ted. Thus n d ire c t applioatlon of th a t p e rt o f th e has Id en tifie d an extrassly breed arse of authorised sta.te conduct Both th e language of n n d 's preem ption c lau se and th e p i t i a i i a i s case would e n ta il no preemption of p l a i n t i f f s ' f a ilu r e s t a t u t e 's s a v in g s c la u s a in d ic a te a c o n g re s s io n a l d e s ig n t o le a v e to warn oaueee of action in the In stan t case. . Ttie Court sa id tb s s ta te s w ith expensive powers to "reg u late " p esticid es f l a t l y i "we conclude th a t . . the 1966 ao t only prm-enpted A pplying t h e somewhat s u b tl e d i s t i n c t i o n s o f c l n o l l o n a . we s ta te end fed eral ruleaaXing bodies from nandating p a rtic u la r h o ld t h a t . I f EVA-approved la b e ls were in f a c t a ffin e d t o t h e cautionary statements and did not pro-snpt s ta te law damages rele v an t containers, plaintiffM nay_A b-olada-tha& ac tio n s," Td. a t 4707. p roducts w gre-m lslibeied^ I f , however, w arnings to th e F i m a 's u s s o f th e word re q u ire m e n t,1' how ever, c a u tio n s [s o p a r t f r a l a b e l s o r p a c k a g in g , l i m i t a t i o n on s a l a s to a g a in st going so f a r aa to adopt th e Fernboa d is tin c tio n between p ro fe ssio n a ls, o th er p ro tec tio n s fa llin g g en e rally w ith in th e re g u la to ry and cocoon la v in i t s e n t i r e t y . The word Ambit e f w arn in g s sh o u ld have been u se d whan t h e c o n te n t o f th e " r e q u ire a e n t" i n th e 1969 c i g a r e t t e a c t le d th e C lp n lio n a- la b e l was f ix e d by K7A th e s e rem ain s a l i a b i l i t y q u e s tio n f o r t h s t o conclude t h a t such a h ard and f e e t d i s t i n c t i o n had n o t been ^ -b * l* r_ p C f a c t . C f. B ew Vare P e s t i c i d e C o a lit io n . Tnq. V. drawn by Congress in th e l a t e r a c t. A ccordingly, i t found j o r l l n a . S74 F .a d liB ( id d r . 1989) ( s t a t s r e g u la tio n r e q u ir in g p l a i n t i f f 's s t a t e t o r t law f a il u r e to warn Claim p a r t i a l l y n o tice of p estic id e ingredients and dangers to p o te n tia lly preempted to th e ex ten t th a t they involved o le in s th a t c ig a r e tte advertisem ents hod provided inadequate wr-rnlnge. Ca f f e c te d p e rso n s by s ig n s , a d m rtim sm s n ts and o th e r means f a l l s w ith in T jrtA savings o lau as and i s n o t preem pted). The possible r &q u e s tio n o f w h eth e r era was m isle d by d e fe n d a n ts a l s o rem ain s 2 6 . 27 oo ot3 \ --Q <1 Cb a ? I C/l Io eor. B C b CO S 1--4 VOOJ Vv-On c_ < M CO ttoo Toxic Chemicals Litigation Reporter Toxic Chemicals Litigation Reporter Published by Andrews Publications, P.O. Box 1000, Westtown, PA 19395 July 23,1992 U9 mtt 3 fi Oa iSl fi Ks 4 aO iZi a o b SCI 3I 2 il I& S 1 I 4y5 ea *a 1 1%9 a- i 3 1M H S g $ K 89 8 M O 5 0fi. 5 U o S co * M I a3 3 1 a 3 n1 1 l 1 1 s g 1 g 3 3 3 3 g ! 3 5S H ! 15 O3H 9 1 a8* % t 2 * M fl - a 4* o ** 5 h fi & f99Gi S4a- 8 coo o 5 NO B 3 w Meo* o 5 a 1 a c0 89 SI fl Tl 9 Pi SS fl. s 2P? g fi . H H <H & fi. ^2 S9 s 3 I t 1 I Sf&t * & B 1 , 1 I fHl S1 * 5 ? 3 * M i5 2 g- 4) I Is i I8 s s \ 3 I i I6 g ! ^ 52fi 81H p4 1n1i S I I I !a 0 aao >a0 f oe W>1 A * * S S 4. 5 V fi Ha fl ii t *CQ COB4 3S i0 HO 5 3 a O4 aa fi ,j g tA a3 g U0i S fi 5 g # ifi ^5 2i c M 3 frii Af 33 3 2 & H* G At o .m.i. 22 44 gfi f..l BS 9 I *S fi 2 bi 4 50 Ofa. 43 a. s o t! S 1 fSt 4%**4 M fit 1 I J S M 5%4 fi a O H 2 & S 877 ih o 5 Copyrigjit 1992 Andrews Publications 16283 All Rights Reserved W ater h o t t o Hava p raaap tad a l l gam on la v n u isa n ce a u l ta concerning w ater p o llu tio n . Id . O u allatta van n o t n early eo broad, holding only' th a t nulaanoa a u lta must be brought under th e l e y o f th e e t a t e tram Which th e p o llu t io n ' e n a n a te e . Thue u n d e re tc o d , i t l a h a rd t o ae how O u e lle tte even i n d i r e c t l y underm ines P arebaa and a l l o th e r f e d e r a l P1FRA o aaaa t h a t have found design d e fe c t and nagllgenoa n ctio n a n o t preem pted. Sven w are we t o e c n a id a r t i t t l e a p reo e d en t t h a t n u a t b e fo llo w e d in t h i e d i v e r e i t y o aa e u n d er Sell d o c tr in e a' d o u b tf u l p r o p o e itic n einoe g h ev e cttriiatlo n of precaution la a fed aral laaue -- L ittle wan d e c id e d w ith o u t th e b e n e f it o f C lp o llo n e . I t i a n o t o o n o e iv a b la t h a t any Mew York a t a t a c o u r t would now f i n d tlTRh to have o o n p letaly preempted a l l e ta ta t o r t la v . ha a general ru le , gpnplianoo w ith fed aral atandarde does n o t, i n and o f i t s e l f , immunise a M anufacturer o r r e t a i l e r f ro e t a t e le v t o r t l i a b i l i t y , flu zecehee 73d 7.2d a t l i u . yzitUL'a eavinge olau ee aervee t o eutpheaise t h i s p o in t, T h a t a m must s ta m in a w hether a p e a tic id a " w ill perform i t s in te n d e d fu n ctio n w ithout unreasonable adverse e ffe o ta on th e environment* u n d e r 7 a .B .C . I 136a(o] (a)(D ) (B) (C ), does n o t s u p p la n t t h e s t a t e 's power to render a judgeant aa to th e re la tiv e r is k s and b e n e f i t s o f th e p ro d u c t, arg u a b ly , th e EPh d e ta r a in a tlo Q an y b e ev id en c e to be o oneidered along w ith a l l o th e r r e l e v a n t e v id e n c e In d o te m in in g w hether d e fe n d a n ts' b e h a v io r wee t o r t l o u a . jut w ith th e other lseuea ii\ th ie c u e not y et rip e fo r reso lu tio n , th is d ecisio n should be l e f t fo r poet-discovery ru lin g s . 30 00 <1 00 Toxic Chemicals Litigation Reporter ZV. OOHCUJBZOt Dafandanta* n o tio n s fo r su m aty judgaant on th e grounds o praanptlon ara danlad. etd an li J u ly 1,. 1993 B ro o k ly n, Haw f o r k >1 cc_ 1500 763 FED ER A L SU PPLEM EN T deactivation. Moreover, even if the defen dants claimed that Case was responsible, the alleged deactivation is not the type of harm protected by the nuisance statute. Randall v. Village o f Excelsior, 258 Minn. 81, 84-86, 103 N.W.2d 131, 134-35 (1960) (holding that nuisance should not be ex tended to cover claims more properly de fined by other legal theories). J. Case's Motion for Summary Judg ment on Defendants' Claims of Inter c e p t i o n and Disclosure of Wire or Oral Communications The defendants ass'ert in Count X that Case violated 18 U.S.C. 2511 by intercept ing or attempting to intercept their wire communications. The facts, however, do not support this claim against Case. Steve Farrell testified that he really did not think that Case intercepted any of Farrell's com munications. Similarly, Steve Boerboom indicated that he would say no when asked if Boerboom was contending that Case en gaged in some kind of wiretapping of Boerboom's facilities. Moreover, as previously indicated, 2511 does not apply to the au thorized use of computer data and Case's motion for summary judgment -on this claim is granted. K. Case's Motion for Summary Judg ment on Defendants' Claim Regard ing Unlawful Access to Electronic Communications damages pursuant to those claims, how ever, are limited to the recovery of direct damages. Summary judgment is granted on all other claims. Thus, IT IS HEREBY ORDERED that: 1. ACTL's motion for summary judg ment for the relief requested in its com plaint against Jack Farrell Implement Co. and Boerboom International, Inc. is grant ed in favor of ACTL. Judgment is entered against Boerboom International, Inc. for $20,855.42. Judgment is entered against Jack Farrell Implement Co. for $33,020.46; 2. ACTL's motion for summary judg ment on defendants' answers and counter claims 111--XI is granted in favor of ACTL; 3. ADP's motion for summary judg ment on all of defendants' answers and counterclaims is granted in ADP's favor except to the extent that the defendants seek relief for breach of contract and ex press warranty; 4. Navistar International Transporta tion Corp.'s (IH) motion for summary judg ment is granted in favor of IH on all of defendants' claims against IH Navistar In ternational; 5. J.I. Case Co.'s motion for summary judgment is granted in favor of Case on all of defendants' claims against Case; and 6. Defendants' motion to stay the entry of ACTL's judgments against them is de nied. The defendants also seek relief for an alleged violation of 18 U.S.C. 2701, claim ing that Case violated this statute by. ac cessing their computer systems without authorizaiion. The statute, however, bars oniv unlawful access to stored communica tions. Boerboom and Farrell consented to access by ADP, and further concede that they have no such claim against Case. Therefore, Case's motion for summary judgment on this claim is granted. CONCLUSION Based on the foregoing, the only claims that remain in this action are Boerboom and Farrell's claims for breach of contract and express warranty against ADP. Their John RIDEN, et ux.. Plaintiffs, V- ICI AMERICAS, INC.. Defendant. No. 89-0903-CV-W-l. United States District Court, W.D. Missouri, W.D. May 14, 1991. Product liability action was filed against manufacturers of rat poison alleg- 879 i 1 i ; 4 6 ing failure to warn. to dismiss on grounds l were preemted by Fedi gicide, and Rodenticide District Court, Whippl FRA did not expri .preempt state law fail against pesticide manu: Motion denied. 1. Agriculture =9.13 States =18.65 State common-law expressly preempted 1 Insecticide, Fungicide, ; 24(a, b), as ame 136v(a, b). 2. Agriculture >9.13 States =18.65 Congress did not preempt state com against pesticide manu FRA. Federal Insect! Rodenticide Act, 24 U.S.C.A. 136v(a). 3. Agriculture =9.13 States =18.65 State common-law' cide manufacturers f< were not preempted ci purpose of FIFRA, -w was not compelled to a response to jury award is compelled to comph regulation with regard determination concern! would not threaten scheme. Federal Ins. and Rodenticide Act, amended, 7 U.S.C.A. t I. T h i s c a s e o r i g i n a l l y w. Court of Clay County. ! fendants to federal cot 1989. D u rin g the pende: R idens sought leave to Their request to am end \ a ry 4, 1991. A lthough ICIA an d Co m o tio n to dism iss, ICIA dant in the case. In ; T suant to those claims, howited to the recovery of direct immary judgment is granted laims. Thus, IT IS HEREBY hat: motion for summary judgrelief requested in its cornjack Farrell Implement Co. i International, Inc. is grantACTL. Judgment is entered >oom International, Inc. for udgment is entered against npiement Co. for $33,020.46; motion for summary judgdants' answers and counters granted in favor of ACTL; notion for summary judgf defendants' answers and is granted in ADP's favor extent that the defendants bre; of contract and ex- International Transportai motion for summary judgi in favor of IH on all of ms against IH Navistar In- Co.'s motion for summary nted in favor of Case on all claims against Case; and -S motion to stay the entry nents against them is de- \______ }!*NUMBl* swim N. et ux.. P la in tiffs, V. AS, INC., D efen dan t. -0903-C V -W -l. ' :es D istrict Court, lisso u ri, W.D. 14, ,4. lity action w as filed rers o f rat poison alleg- RIDEN v. ICI AMERICAS, INC. 1501 Clle a 763 F.Supp. 1500 (W.D.Mo. 1991) ing failure to w arn. M anufacturer moved M ax F o u st, K a n sa s C ity, Mo., fo r plain to dism iss on grounds that sta te law claim s tiffs. w ere preem ted by Federal Insecticide, Fun J a m es F. D u n ca n , K a n sa s C ity, Mo., for gicide, and R odenticide A ct (FIFR A ). The Cooper A nim al H ealth. D istrict Court, W hipple, J., held that F I FR A did not e x p r e s sly or im pliedly ORDER preem pt sta te law failure to warn claim s again st pesticide m anufacturers. M otion denied. WHIPPLE, District Judge. B efo re th is co u rt is defendant, ICI A m er icas Inc.'s M otion to D ism iss, filed S ep tem ber 28. 1990. Plaintiffs filed their S u g g e s tions in O pp osition on O ctober 10, 1990. I I. A g r ic u ltu r e =>9.13 D efen d an t filed its R eply M em orandum on S tates =18.65 O ctober 22, 1990. For the reasons set * S ta te co m m o n -la w r e m e d ie s w e r e n ot fo r th b e lo w , d e fe n d a n t's m otion to d ism iss exp ressly preem pted by F IF R A . Federal will be denied. Insecticide, F ungicide, and Rodenticide Act, 24(a, b), as am ended, 7 U .S.C .A . I. S T A T E M E N T OF C A SE f 136v(a, b). On A u g u st 17, 1989, p la in tiffs John and M arilyn Riden (" R iden" ) filed a petition for 2. A g r ic u ltu r e =>9.13 d a m a g e s a g a in s t-d e fe n d a n ts ICI A m e ric a s. j S tates =18.65 Inc. (" IC IA ") and C oopers Anim al H ead! . | C o n g r e s s did n o t in te n d to im p lied ly Inc. (" C o o p e r s" ) fo r in ju ries Mr. R iden s u f I preem pt sta te com m on-law rem edies fered after u sin g H avoc, a rat poison m an | again st pesticide m anufacturers under FI- ufactured by th e d efen d a n ts.1 B etw een ? FR A . F ederal Insecticide, Fungicide, and O ctober o f 1986 and January of 1987. Mr I R od en ticid e A ct, 24(a), a s am en d ed , 7 R iden w a s e m p lo y e d on a farm in S tou t- | U .S .C .A . I3 6 v (a ). ville, M issouri. A s part of his job, Mr Riden used and distributed Havoc around 3. A gricu ltu re =9.13 th e farm g r o u n d s . T h e a c tiv e in g r e d ie n t in j S tates =18.65 H avoc is a su b sta n ce called brodifacoum .2 S ta te com m on -law claim s a g a in st p esti Mr. Riden co n ten d s th at as a direct and proxim ate resu lt o f u sin g the brodifacoum - cide m anu factu rers for failure to warn eontaining rat poison he su ffered "severe w ere not preem pted du e to conflict with bleeding from m ultiple orifices of his body, ; purpose of FIFRA, where m anufacturer sores about his hands and legs, the block w a s n o t c o m p e lle d to a lte r p r o d u ct label in r e s p o n s e to ju r y a w a r d in s a m e w a y th a t it in g o f V ita m in K c o a g u la tio n s y s te m , g a s trointestinal bleeding and other physiologi is com pelled to com ply with sta te law or cal d a m a g e to h is p e r s o n .'' F ir st A m en d ed regulation with regard to labels, and jury d e te r m in a tio n c o n c e r n in g a d e q u a c y o f label C o m p la in t a t C o u n t 1 H 5. w o u ld n o t th r e a te n F I F R A 's la b e lin g In su pp ort o f their petition for d am ages, sc h e m e . F ed era l In se c tic id e , F u n g ic id e, th e R id e n s a s s e r t th a t ICIA is liab le for 1) , and R odenticide A ct, 3(f)(1), 24(b), as p rod u cin g a p rod u ct th a t is "d efectiv e and am ended, 7 U .S.C .A . I3 6 a (f)(l), I36v(b). un reason ab ly d a n g ero u s w hen put to a rea- , 1. T h i s c a s e o r i g i n a l l y w a s f il e d in t h e C i r c u i t O c t o b e r 12, 1990, C o o p e r s w a s d is m is s e d w ith C o u rt o f C lay C ounty. It w a s re m o v e d bv de- p r e j u d i c e p u r s u a n t to a j o i n t s t i p u l a t i o n o f tin- . fe n d a n ts to federal c o u rt o n S e p te m b e r 21, parties. T h erefo re, ICIA will be treated as the 1 1989. D u rin g the p e n d e n c y o f this m o tio n , the sole author of the motion. Ridens sought leave to am end their petition. : Their request to a m e n d was granted on F e b ru 2. B rodifacoum is an anticoagulant c h en m ai. a ry 4, 1991. In large enough doses, brodifacoum depresses A lthough 1CIA a n d C o o p e r s jo in tly filed the m o tio n to d ism iss. IC1A is n o w th e o n ly d e f e n t h e b o d y 's V i t a m i n K c l o t t i n g f a c t o r s a n d c a n cause hemorrhaging. d ant in the case. In a court ord e r entered 880 J) - 90% 1502 763 F E D E R A L S U PPLEM EN T sonably anticipated use" due to its active ingredient brodifacoum (Count I H3); 2) failing to give users of the product ade quate warning of the "severity or nature of the dangerous poison" it contains and fail ing to warn users that they should not handle the product with bare skin or breathe the dust from the product (Count II '! 9): and 3) negligently failing to proper ly test the product and to properly warn users of the product's dangerous nature (Count 111 'I 12). All of Mrs. Riden's claims are for loss of consortium. II. ICIA'S MOTION TO DISMISS The sole basis for ICIA's Motion to Dis miss--which is based on the Ridens' origi nal petition for damages--is that all of the claims the Ridens assert are preempted by the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. 136 e t seq. IClA contends that FIFRA preempts claims based on a failure to warn theory because products registered under FIFRA must bear a label approved by the Environ mental Protection Agency ("EPA"), the agency responsible for administering FI FRA/1 In support, ICIA argues that FIFRA's legislative history and express lan guage infers that Congress intended to preempt any state role in regulating pesti cide labeling. Reply Memorandum at 3. In support of its contention, ICIA primar ily relies on the Honorable Judge Bartlett's decision in F i s h e r v. C h e v r o n C h e m i c a l C o., 716 F.Supp. 1283 (W.D.Mo.1989). Sug gestions in Support at 4-7. Therein, the court held that state common law remedies are impliedly preempted by FIFRA because they conflict with the Act's objective of fostering national uniformity in pesticide labeling. F is h e r principally relied on the reasoning in F i t z g e r a l d v. M a l l i n c k r o d t , In c ., 681 F.Supp. 404 (E.D.Mich.1987) in reaching its conclusion. F i t z g e r a l d was ihe first case to find that state common law r e m e d i e s are preempted by FIFRA. The F it z g e r a l d court reached its decision in spite of the contrary position advanced in F e r e b e e v. C h e v r o n C h e m i c a l C o ., 736 F.2d 1529 (D.C.Cir.1984), c e r t, d e n ie d , 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1985) (holding that a state jury award is not an obstacle to the purposes of FIFRA because a manufacturer would not be com pelled to change its product's label). In stead, the F i t z g e r a l d court relied on the reasoning set forth in P a l m e r v. L ig g e tt G r o u p , In c ., 825 F.2d 620 (1st Cir. 1987), cert., d e n ie d , 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989) (holding that state common law remedies are preempted by the Federal Cigarette Labeling and Adver tising Act). The P a l m e r court did not be lieve, as the F e r e b e e court did, that a man ufacturer would not be compelled to alter its label following an adverse jury verdict. In response, the Ridens argue that the court should not follow the decision of the F is h e r court because its result improperly relies on the P a l m e r decision. Suggestion in Opposition at 5-7. As noted above, the F is h e r court relied on the reasoning in F it z g e r a l d which, in turn, relied on the reasoning in P a l m e r for the proposition that tort claims are impliedly preempted by FIFRA. The Ridens contend that contrary to F i t z g e r a l d 's reliance on P a lm e r , the First Circuit tacitly approved F e r e b e e 's finding that FIFRA does not preempt state tort claims. The P a l m e r court distin guished the regulatory schemes of the two acts so as to justify its conclusion that the cigarette act preempts tort claims while FIFRA did not. In reply, ICIA argues that F e r e b e e 's rea soning, which has been referred to as the "choice of reaction" analysis, is not per suasive. Suggestions in Support at 7. Re lying on F i s h e r 's evaluation of F e re b e e , ICIA asserts that F e r e b e e 's analysis weak ly seems to justify its result. In actuality, ICIA contends, a jury award will do just what FIFRA expressly prohibits the state legislatures from doing: regulate pesticide labeling and packaging. i. Due to changes m ade by plaintiffs in their First A m ended C om plaint, ICIA's arg u m e n t for dismissal will no longer discharge the entire p r o c e e d i n g . T h e r e f o r e , IC IA 's p l e a d i n g s h a l l be tre a te d as a m o tio n to d is m is s C o u n t II and portions of C ount III of the First A mended Complaint. R ID E N v. IC I A M E R IC A S, INC. 1503 C ite a s 763 F .S u p p . 1500 (W.D.Mo. 1991) III. DISCUSSION exercising its traditional police powers.1 In A. F e d e r a l P r e e m p t i o n Federal preemption of state law by the Congress finds its authority in the su premacy clause of the United States Consti tution, article VI, clause 2. G ib b o n s v. O g d e n , 22 U.S. (9 Wheat.) 1, 210-11, 6 L.Ed. 23, 73 (1824). The U.S. Constitution provides: "The Constitution ] and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land.. . . " The Unit ed States Supreme Court has described three instances where a finding of federal preemption is justified: ... [Congress] provide[s] explicitly that particular state laws are pre-empted. Al though courts should not lightly infer pre-emption, it may be presumed when the federal legislation is "sufficiently comprehensive to make reasonable the inference that Congress `left no room' for supplementary state regulation." In addition to express or implied pre-emp tion, a state law also is invalid to the extent that it "actually conflicts with a ... federal statute." Such a conflict will be found when the state law " `stands as that instance, courts have been advised to "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the c le a r and m a n i f e s t purpose of Congress." R ic e v. S a n t a F e E l e v a t o r C o rp ., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447, 1459 (1947) (emphasis added). The critical consideration in any preemp tion analysis is whether Congress intended that federal law supersede state law. L o u i s i a n a P u b li c S e r v ic e C o m m 'n r. F .C .C .. 476 U.S. 355, 369, 106 S.CT. 1890. 1899. 90 L.Ed.2d 369, 382 (1986). In searching for Congressional intent, courts often have looked to the law's legislative history, as well as its express language. S e e . e.g., K e n n a n v. D o w C h e m i c a l C o., 717 F.Supp. 799, 804 (M.D.Fla.1989). The burden is on the moving party to prove that Congress intended to preempt state law. S e e , e.g., S i l k w o o d v. K e r r - M c G e e C o r p ., 464 U.S. 238, 255, 104 S.Ct. 615, 625, 78 L.Ed.2d 443, 457 (1984). B. F I F R A : I t s L e g i s l a t i v e H i s t o r y a n d R eg u la to ry S ch em e an obstacle to the accomplishment and (1) FIFRA's Legislative History execution of the full purposes and objec FIFRA was adopted in 1947 and later tive of Congress.' " underwent substantial revision through the I n t e r n a t i o n a l P a p e r Co. v. O u e l l e t t e , 479 adoption of the Federal Environmental Pes U.S. 481, 491-92, 107 S.Ct. 805, 811, 93 ticide Control Act of 1972. FIFRA re L.Ed.2d 883, 896 (1987) (citations and foot placed the Insecticide Act of 1910,' the first note omitted). federal regulatory foray into this area. In Any analysis under the supremacy clause its original form. FIFRA's stated purpose begins with the basic presumption that was to "regulate the marketing of econom Congress did not intend to displace state ic poisons and devices, and for other pur law. M a r y l a n d v. L o u i s i a n a , 451 U.S. poses." The principal provision of the 1947 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed.2d Act was its requirement that all pesticides, 576, 595 (1981). This presumption is fungicides and rodenticides had to be reg heightened where the federal law would istered with the U.S. Department of Agri have the effect of barring a state from culture 56 before they could be sold into 4. Stale c o m m o n law tort rem edies traditionally have been regarded as within "the scope of state s u p e r i n t e n d e n c e . " Florida L im e Si A v o ca d o Grow ers, In c. v. Paul, 373 U.S. 132, 144, 83 S.Ct. 1210, 1218, 10 L.Ed.2d 248, 258 (1963). ture, sale, and transportation of insecticides and fungicides that were adulterated and m isbrand e d . S . R e p . No. 838, 9 2 n d C o n g ., 2d Se ss. 7, reprinted in 1972 U.S.Codc C ong. & A dm in. News 3993, 3999. 5. Act o f April 26. 1910, ch. 191, 36 S lat. 331 (repealed 1947). The Act of 1910 o n ly regulated insecticides and fungicides. The m ain thrust of the Insecticide Act was to prevent the manufac- 6. T h e U.S. D e p a r t m e n t o f A g r i c u l t u r e tr a n s f e r re d its re sp o n sib ilitie s to the EPA in 1970. R u ckelsh a u s v. M onsanto C o .. 467 U.S. 986, 991. 104 S.Ct. 2862. 2867. 81 L . E d . 2 d 815, 825 (198 4) . 1504 763 FED E R A L SU PPL E M E N T interstate commerce. The Act also includ ed provisions pertaining to the labeling of products registered thereunder. House Comm, on Agriculture, H.R.Rep. No. 313, 80th Cong., 1st Sess. 2, r e p r i n t e d i n 1947 U.S.Code Cong.Serv. 1200, 1201. In 1972, FIFRA was amended and its scope of regulation was significantly ex panded. The new version of FIFRA strengthened the EPA's enforcement pow ers, extended federal pesticide regulation to those products moving only into intra state commerce, and authorized the EPA to refuse to register a pesticide that proved to be an unreasonable risk to man and his environment. S.Rep. No. 838, 92nd Cong. 2d Sess. 1-2, r e p r i n t e d in 1972 U.S.Code Cong. & Admin.News 3993, 3993-94. Additionally, the 1972 revision adopted a section expressly articulating the states' authority to regulate pesticides. S e e 7 U.S.C. 136v. As originally drafted, FI FRA was designed to work in harmony with the Uniform State Insecticide, Fungi cide, and Rodenticide Act." The legislative history of the 1972 amendment does not s h e d m u c h light o n why Congress added * 13tiv to the Act except to say: "In divid ing the- responsibility between the States a n d t h e Federal Government for the m a n a g e m e n t of a n effective pesticide pro g r a m , t h e Committee [on Agriculture] has adopted language which is intended to com pletely preempt State authority in regard to labeling and packaging." H.R.Rep. No. 511, 92nd Cong., 1st Sess. 16 (1971). Sec tion 136v states in pertinent part: (a) 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) Such State shall not impose or contin ue in effect any requirements for label ing or packaging in addition to or differ ent from those required under this sub chapter. (2) FIFRA's Regulatory Scheme Under its current scheme, FIFRA directs the EPA Administrator to register a pesti cide when (A) its composition is such as to warrant the proposed claims for it; (B) its labeling and other material re quire to be submitted comply with the requirements of this subchapter; (C) it will perform its intended function without unreasonable adverse effects on the environment;s and (D) when used in accordance with wide spread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment. 7 U.S.C. 136a(c)(5). A copy of the pesticide's label is sub mitted to the EPA as part of the registra tion statement the applicant submits. 7 U.S.C. 136a(c)(l)(C). To obtain approval of the label, a manufacturer must comply with the EPA Labeling Requirements for Pesticides and Devices, 40 C.F.R. 156.10 (1990). The EPA requirements provide in detail what information must appear on a pesticide label. Section 156.10(a) summa rizes what information is required: name, brand, or trademark under which the prod uct is sold, name and address of the manu facturer or registrant, net contents, prod uct registration number, manufacturer's number, ingredient statement, warning or precautionary statements, and directions for use of the product. 7. T h e H o u se C o m m itte e on A g ric u ltu re o b served: It is b e l i e v e d th a t th e e n a c t m e n t ol th is bill [FIFRA] will greatly facilitate the co o rd in a tion of work in this field am ong the States a n d w i t h th e F e d e r a l G o v e r n m e n t . It is h i g h ly d esirable that laws governing eco n o m ic poisons be as nearly uniform as possible con-.istent with the need for the protection of the public, so that m an u factu rers m ay have N a tio n w id e distribution with a m inim um of conflict between the labeling requirem ents of the various laws. H . R . R e p . No. 313, 8 0 t h C o n g ., 1st S e s s. 3, reprinted in 1947 U .S .C ode C o n g .S erv . 1200, 1202. 8. The p h rase "u n re a so n a b le ad v erse effects on the e n v i r o n m e n t " is d e fin e d as "a n y u n r e a s o n able risk to m an or the environm ent, taking into account the econom ic, social, and environm en tal costs a n d benefits of the use of any pesti cide." 7 U.S.C. 136(bb). RIDEN v. ICI AMERICAS, INC. C ite a s 763 F .S u p p . 1500 (W.D.Mo. 1991) 1505 While the EPA requirements specify not expressly preempted by FIFRA. See what kind of information must appear on a Papas v. Upjohn Co., 926 F.2d 1019, 1024 pesticide label, they do not always specify (11th Cir.1991); Ferebee v. Chevron Chem the exact wording which must be used. ical Co., 736 F.2d 1529, 1542 (D.C.Cir.1984); Where the EPA does not provide the exact A rkansas Platte & G u lf Partnership r. wording, the pesticide manufacturer is re Van Waters & Rogers Inc... 748 F.Supp. sponsible for submitting draft language for 1474, 1481 (D.Colo. 1990); Stewart v. O r t h o EPA approval. Pursuant to Consumer Products. 1990 WL 36129 (E.D. 156.10(h)(l)(iii) (Statement of practical La.1990); H urt v. Dow Chemical Co., 759 treatment [first aid]), F.Supp. 556 (E.D.Mo.1990); Wlntener r. 156.10(h)(`2)(1)(A)--(B) (Other required Reilly Industries. No. 87-5224, slip op. at 4 warnings and precautionary statements),5' (S.D.Iil. Oct. 25. 1989); Fisher e. Chevron and 156.10(i)(l)(i) (Directions for use),"' Chemical Co.. 716 F.Supp. 1283. 1280-87 manufacturers are directed to draft lan (W.D.Mo.1989); Co.r v. Velsicol Chemical guage which adequately instructs a con Corp., 704 F.Supp. 85, 87 (E.D.Pa. 1989); sumer on how to use the product without Roberts v. Dow Chemical Co., 702 F.Supp. unnecessary injury to himself or to the 195, 197 (N.D.III.1988); Fitzgerald v. Mal- environment. A label may be altered or linckrodt, Inc., 681 F.Supp. 404, 407 (E.D. amended after the product has been reg Mich.1987); Wilson v. Chevron Chemical istered if the EPA determines that "the change will not violate any provision" of the Act. 7 U.S.C. 136a(f)(l). Co., 1986 WL 14925. But see Kennan v. Dow Chemical Co., 717 F.Supp. 799. 80405 (M.D.Fla.1989) (finding that Congress The Act provides that it is unlawful to sell a pesticide that is misbranded. 7 U.S.C. 136j(a)(l)(E). A pesticide is "mis branded" if its label 1) fails to contain the information required by the EPA require ments; 2) does not contain directions for use "which are necessary for effecting the purpose for which the product is intended and if complied with . .. are adequate to protect health and the environment" (7 U.S.C. 136(q)(l)(F)); and 3) does not con tain a warning or caution statement "which may be necessary and if complied with . .. is adequate to protect health and the envi ronment" (7 U.S.C. l36(q)(D(G)). C. FIFRA Does Not Expressly Preempt State Tort Clainis expressly intended to preempt state tort claims). This conclusion is supported by a reading of the Act's preemption clause, which only provides that, the states "shall not impose or continue in effect any re quirements for labeling or packaging in addition to or different from" those re quirements imposed by FIFRA. 7 U.S.C 136v(b). No reference is made in 136v(b) to the preemption of state com mon law remedies. Although the U S. Su preme Court previously has held that state common law remedies can he a ''potent method of governing conduct, and control ling policy." San Diego Building Trades Council v. Garmon. 359 U.S. 236, 247, 79 S.Ct. 773, 780, 3 L.Ed.2d 775. 784 (1959). Congress' failure to expressly preempt [1] This court agrees with the majority state common law cannot be ignored. Con of federal courts who have considered the gress has made direct reference to common issue that state common law remedies are law in other preemption clauses." Conse- 9. T he section includes "typical" p re c au tio n ary statem ent for the Four categories of toxicity identified by the EPA. The precautionary state ments address oral, inhalation, or derm al toxici ty an d skin an d eye local effects. The require ments provide that these statem ents "must be modified or expanded to reflect specific haz a r d s . "01 10. T h is s e c tio n provides: Directions for use m ust be stated in term s which can be easily read and understood by the average person likely to use or to su p e r vise th e use o f the pesticide. W h en follow ed, directions m ust be adequate to proiecl the public from fraud and from personal injury and to prevent u n reasonable adverse effects on the environment. 11. C o n g re s s e x p re ss ly p r e e m p te d state c o m m o n l a w r e m e d i e s in (h e D o m e s t i c H o u sin g a n d In ternational Recovery and Financial Stability Act, 12 U.S.C. 1 715z--17(a), 1715 z - 18(c ) (preem pting "State constitution, statute, court 884 p ~Jld 1506 763 FEDERAL SUFFLEMEiNT quently, Congress' silence is inimical to a finding of express preemption. Fisher, 716 F.Supp. at 1287. See also Cipollone v. Liggett Group, Inc., 789 F.2d 181, 186 (3d Cir. 1986) (observing that the U.S. Supreme Court generally relies on principles of im plied preemption to evaluate when Con gress makes no reference to state common law in the preemption clause). D . FIFRA Dors S o t Im pliedly Preempt State Tort Claims 12) This court similarly agrees with F isher that Congress did not intend to im pliedly preempt state common law remedies under FI FRA. Fisher, 716 F.Supp. at 1287. As the Fisher court properly noted, Congress did not reflect an intention to occupy the entire field of pesticide regula tion; rather, it expressly recognized the states' continued right to regulate the sale and use of products registered under the Act. 7 U.S.C. I36v(a). The adoption of 136v(a), the Fisher court concluded, dem onstrates that "the scheme created by FIFRA is not 'so pervasive' or the federal interest 'so dominant' as to demonstrate an intent to preempt all state law claims." But cf. Papas, 926 F.2d at 1024-25 (holding that the federal government "has occupied the entire field of labeling regulation, leav ing no room for the states to supplement federal law, even by means of state com mon law tort actions.").E. E. State Common Law Remedies Do Sot Conflict With the Purposes o f FIFRA 131 This court respectfully declines to follow the Fisher court's conclusion that state common law claims for failure to warn are preempted because they conflict with the purpose of FIFRA. Fisher, 716 F.Supp. at 1287-89. By declining to follow Fisher, this court does not dispute its char acterization of FIFRA's principal purpose: the registration and regulation of pesti cides that do not pose an unreasonable risk to man or his environment. In connection with this objective, Congress gave the fed eral government the sole responsibility for delineating labeling requirements for pesti cides. Instead, this court disagrees with Fisher's determination that the effect of a state common law remedy is at odds with the purpose of the Act. Fisher, as well as other courts who have reached a similar result, have held that the effect of an ad verse jury finding (based on a failure to warn claim) would (1) compel a manufac turer to change the label's language and (2) destroy the Act's policy of uniform pesti cide labeling. The court will address each point separately. (1 ) In Ferebee, the first case to consider whether state common law actions are preempted by FIFRA, the Court of Appeals for the District of Columbia held that such claims are not impliedly preempted because a manufacturer could comply with both the federal and state (common law) require ments. 736 F.2d at 1542. The court ex plained that a manufacturer could continue to use the label and, at the same time, pay damages to the tort claimant.12 Id. Ferebee's reasoning has been relied on by a majority of the courts finding no preemp tion. See, e.g., Evenson v. Osmose Wood Preserving, Inc., 760 F.Supp. 1345, 1348 d e c r e e , c o m m o n la w , ru le , o r p u b l i c p o l i c y "); C o p y r i g h t Act o f 1976, 17 U.S.C. 3 0 1 ( b ) (preem pting rights "under the com m on law or statutes of any State"); and in the Em ployee R e tire m e n t I n c o m e S e c u rity Act o f 1974, 29 U.S.C. 1144(a), (c)(1) (p r e e m p tin g "all laws, decisions, rules, regulations, or other State ac tion h a ving the effect o f law' o f a n y State"). In fairness to the c o n tra ry position, C ongress could have preserved state com m on law rem e dies bv including a "savings clause." FIFRA contains a savings clause pertaining to the states' continued authority to regulate the sale .^or use o f p e sticid e s. 7 U.S.C. 136v(a). 12. T h e Ferebee c o u r t b a s e d Its f in d i n g o n tw o a d d i t i o n a l r a t i o n a l e s : 1) c o m p l i a n c e w i t h b o t h federal and slate law cannot be said to be im possible because the defendant can petition the EPA to allow the label to be m o re c o m prehen sive; 2) state c o m m o n law d a m a g es w ould not serve as an obstacle to the accom plishm ent of FIFRA's p u rp o se. "Such a conflict w o u ld exist only if FIFRA w ere viewed not as a regulatory statute aim ed at protecting citizens from the hazards of m odern pesticides, but rather as an affirmative subsidization of the pesticide indus try that com m anded states to accept the use of EPA-approved pesticides." 736 F.2d at 1542-43. 885 I iti ? ! (S.D.Ind.1990); 'St (E.D.La.1990); Wh op. at 6; Cox, 704 702 F.Supp. at 19r Three years aftt its reasoning met ` Fitzgerald. The / believe, as Ferebet er had a lgitimt. , altering a pesticiri. an adverse jury v. gerald court belie reaction" analysis "seems akin to up for air after a jury has fout der state law, ble for damage ing it, it is unth: turer would no to minimize it. liability." 681 F.Supp. at 40 gett Group, Inc., Cir. 1987), cert, dS.Ct. 838, 102 L.E omitted). In support of primarily relied court was asked common law cla the Federal Ciga tising Act, 15 T court held that under the cigare ' Palm er do'utt no' the "choice of r Ferebee. 825 F.: court did not, ho its application-- ing--in Ferebee. 13. In a fo o tn o te FIFRA, which herbicide and an entirely scheme from t rette] Act. Un drafts a warn EPA approval the sam e regui labels of theii that they obu. contrast, the plies to cigare I; % i t .* RIDEN v. ICI AMERICAS, INC. Cite as 763 F.Supp. 1500 (W.D.Mo. 1991) (S.D.Ind.1990); Stewart, 1990 WL 36129 distinguished the courts' findings so as to (E.D.La.1990); Whitener, No. 87-5224, slip reconcile their divergent conclusions.1,1 op. at 6; Cox, 704 F.Supp. at 87; Roberts, Although Fitzgerald's reliance on Palm 702 F.Supp. at 197. er has been criticized, a majority of the Three years after Ferebee was decided, courts finding preemption have relied on its reasoning met with sharp criticism in the decision, including Fisher. See, e.g.. Fitzgerald. The Fitzgerald court did not Hurt, 759 F.Supp. 556 (E.D.Mo.1990); Herr believe, as Ferebee did, that a manufactur v. Carolina Log Bldgs., Inc., No. EV 85- er had a legitimate choice with respect to 262-C, slip op. at 8 (S.D.Ind. Sept. 22, altering a pesticide's label in the wake of 19891: Kennan. 717 F.Supp. at 806; Wat an adverse jury verdict. Rather, the Fitz son v. Orkin Exterm inating Co.. No. gerald court believed that the "choice of JFM-88-2427. slip op. at 2. 1988 WL reaction" analysis 235673 (D.Md. Nov. 8, 1988). Fisher, in "seems akin to the free choice of coming response to criticism that the two cases up for air after being underwater. Once involve vastly different regulatory schemes a jury has found a label inadequate un (i.e. the cigarette act specifically prescribes der state law, and the manufacturer lia what language must appear on a label, ble for damages for negligently employ while FIFRA directs a manufacturer to ing it, it is unthinkable that any manufac turer would not immediately take steps to minimize its exposure to continued liability." 681 F.Supp. at 407 (quoting Palm er v. Lig submit draft language for certain informa tion), concluded that this is a "distinction without significance; both acts expressly prohibit states from regulating any aspect of labeling." 716 F.Supp. at 1289. gett Group, Inc., 825 F.2d 620, 627-28 (1st This court is not entirely persuaded by Cir.1987), cert, denied, 488 U.S. 1030, 109 Ferebee's "choice of reaction" analysis. S.Ct. 838, 102 L.Ed.2d 970 (1989)) (emphasis omitted). In support of its reasoning, Fitzgerald primarily relied on Palmer. The Palmer court was asked to decide whether state common law claims are preempted under the Federal Cigarette Labeling and Adver tising Act, 15 U.S.C. 1331 et seq. The court held that the claims are preempted However, this court recognizes that a man ufacturer is not "compelled" to alter a product label in response to a jury award in the same way that it is "compelled" to comply with a state law or regulation. For instance, where a manufacturer is faced with an isolated jury verdict, it may dismiss the action as an aberration, pay the judg ment and choose not to alter the label. under the cigarette act. In so finding, the (2) Palmer court noted its dissatisfaction with Fisher and other courts also have argued the "choice of reaction" analysis used in that state common law claims are preempt Ferebee. 825 F.2d at 627-28. The Palmer ed because they contravene the Act's policy court did not, however, question or criticize of uniform labeling, as referenced in 7 its application--or the circuit court's find U.S.C. 136v(b). This court does not dis ing--in Ferebee. To the contrary, Palmer pute the import of 136v(b) as it relates to 13. In a footnote, the Palmer court explained: FIFRA, which applies to some 40,000 different herbicide and pesticide formulations, imposes an entirely different type of regulatory scheme from that established under the (Ciga rette] Act. Under FIFRA, each manufacturer drafts a warning label for each product for EPA approval. Thus, two manufacturers of the same regulated product may use different labels of their own choosing, provided only that they obtain prior EPA approval. .. In contrast, the [Cigarette] Act explicitly (i) ap plies to cigarettes only; (ii) mandates the pre cise language of the label; and (iii) prohibits any state from regulating any aspect of ciga rette warnings. The analogy to Ferebee must fail. Palmer, 825 F.2d at 628-29 n. 13. It is worth noting that the U.S. Supreme Court recently agreed to consider the question of whether state tort claims (premised on a failure to warn theory) are preempted by the Federal Cigarette Labeling and Advertising Act. See C: poltone v. Liggeit Croup Inc., 893 F.2d 54 1 t.3rd Cir.), cert, granted, -- U.S. ---- , 1I I S.Ct. 1386. 113 L.Ed.2d 443 (1991). 886 D -W 15U> bd M iD hK A l, Ll-'i'LEM EiY l the states' formal legislative powers. But it does dispute the contention that where a manufacturer is "compelled" to revise a pesticide label, the result actually conflicts with the uniform system of labeling fos tered under FIFRA. Since FIFRA was revised in 1972, a sys tem of labeling has developed that ensures that certain information appears on all pes ticide labels. Although broad in scope, the EPA requirements stop short of creating absolute uniformity in pesticide labels. C f H7litever, No. 87-5224, slip op. at 5 ("these minimum standards are insufficient to dem onstrate a Congressional intent to preempt state tort actions"); Cox, 704 F.Supp. at 86-87 ("[v]ery likely what Congress intend ed through FIFRA was to set minimum standards for pesticide labeling"). Unlike the Federal Cigarette Labeling and Adver tising Act, which provides verbatim what language must appear on a cigarette label, FIFRA regulations direct a manufacturer to submit draft language pertaining to first aid treatment, precautionary statements, and directions for use. The distinction be tween the two laws is driven, in large part, by the products they regulate. Unlike the cigarette act, which regulates only one product. FIFRA regulates 50,000 prod ucts--the number of products registered under the Act. These pesticides represent 600 distinct active ingredients. U.S. Gener al Accounting Office, Pesticides: EPA's Formidable Task to Assess and Regulate Their Risks 10 (RCED-86-125, 1986). To replicate th e . cigarette act's labeling scheme, the EPA would have to devise labels corresponding to each of the 600 active ingredients represented. Clearly, this would be an onerous task. It explains why the EPA chose instead to give a pesti cide manufacturer some discretion in draft ing its labels. \'though the label's language first must proved by the EPA before it can be used, the requirements nevertheless permit labeling variations even among products containing the same active ingredient. Thus, to argue that a adverse jury award would threaten FIFRA's policy of uniform labeling belies the truth. Under FIFRA's own terms, a manufacturer may obtain per mission to amend a label after it has been registered. 7 U.S.C. 136a(f)(l). The only limitation is that the amendment cannot conflict with any provision of the Act. Were a manufacturer "compelled" to alter a label because it failed to give adequate directions for use, for example, the manu facturer simply would rewrite the language it drafted in the first instance. The effect of doing this would neither add to nor differ from the EPA's current require ments. One court has argued that a jury deter mination concerning the adequacy of a la bel would scuttle "the methods by which FIFRA protects man and the environment because it would inject irrelevant consider ations into the EPA's evaluation of a pesti cide and its labeling and would second guess the EPA's conclusions." Papas, 926 F.2d at 1026 (footnote omitted). But the fact that an individual was injured while using the pesticide calls into question the adequacy of the label, in spite of the EPA's approval.14 As the Ferebee court properly pointed out: By encouraging plaintiffs to bring suit for injuries not previously recognized as traceable to pesticides . . . a state tort action of the kind under review may aid in the exposure of new dangers associat ed with pesticides. Successful actions of this sort may lead manufacturers to peti tion EPA to allow more detailed labelling of their products; alternatively, EPA it self may decide that revised labels are required in light of the new information that has been brought to its attention through common law suits. 736 F.2d at 1541. The EPA is not infalli ble. Its method for registering pesticides 14. The Ad. itself, sets forth the limits of using registration" as a defense: in no event shall registration of an article be construed as a defense for the commission of any offense under this subchapter. As long as ,no cancellation proceedings are in effect reg- istraiion of a pesticide shall be prima facie evidence that the pesticide, its labeling and packaging comply with the registration provi sions of the subchapter. 7 U.S.C. 136a(f)(2). ; is only as good as ] the registrant in its j See, e.g., Cox, 704 F ; that manufacturers ? implies a duty to pr * adequate warnings . j ' - approval of the EPA 1 . 1988 FIFRA Ament \ - in Pesticide Regula : 10070, 10071 (Feb must satisfy applit data when they art ongoing changes: in however, sometimt registered products ; short time."). | FIFRA's labeling j help minimize the r i cide use by seeing labels contain certa The scheme was r manufacturers fro. when new informa ther warnings or To conclude that i common law remec 1 effect of the EPA j fore, the court co * mon law claims ba. 'theorv" are notAprt IV. For the reasons ORDERED that : tion to Dismiss is Alfredo Jaime SOUTHERN PA TION COM! No. CIV 90United Stat D. Feb Trespasser wl action against rail. 8 8 7 q -0 1 5 even among products ime active ingredient, jat a adverse jury award IFRA's policy of uniform ; truth. Under FIFRA's ufacturer may obtain pera label after it has been C. 136a(f)(l). The only the amendment cannot provision of the Act. rer "compelled" to alter failed to give adequate for example, the manuuld rewrite the language rst instance. The effect Id neither add to nor EPA's current require- rgued that a jury deterg the adequacy of a la`the methods by which m the environment lject irrelevant consider's evaluation of a pestiling and would second inclusions," Papas, 926 note omitted). But the dual was injured while calls into question the >el, in spite of the EPA's Ferebee court properly plaintiffs to bring suit reviously recognized as ticides . .. a state tort under review may aid ' new dangers associat- Successful actions of manufacturers to petimore detailed labelling alternatively, EPA itthat revised labels are of the new information ought to its attention law suits. The EPA is not infallir registering pesticides cidi II be prima facie pesticide, its labeling and with the registration proviapter. DELGADO v. SOUTHERN PACIFIC TRANSP. CO. is only as good as the data submitted by the registrant in its registration statement. See, e.g., Cox, 704 F.Supp. at 87 ("The fact that manufacturers submit their own labels implies a duty to provide a label that gives adequate warnings ... notwithstanding the approval of the EPA.''); Ferguson & Gray, 1988 FIFRA Amendments: A Major Step for injuries he sustained when he fell from train. Railroad brought motion for sum mary judgment. The District Court, McNamee, J., held that: (1) under Arizona law, railroad had no duty to trespasser, and (2) railroad was not negligent per se in failing to keep trespasser from boarding train. in Pesticide Regulation, 19 Envtl.L.Rep. Motion granted. 10070, 10071 (Feb.1989) (" All pesticides must satisfy applicable requirements for data when they are first registered. The 1. Railroads =276<1) ongoing changes in the data requirements, Under Arizona law. railroad had no however, sometimes leave even recently duty to prevent trespasser from boarding registered products with 'data gaps' after a its train on theory that railroad knew tres short time."). passers constantly intruded and was thus FIFRA's labeling scheme was created to liable for harm caused by "arufieiai amdi help minimize the risks attendant to pesti tion on the land"; moving train is: not arti cide use by seeing to it that all pesticide ficial condition on land, but .rather is activi labels contain certain essential information. ty carried on by possessor of land. The scheme was not created to dissuade manufacturers from revising their labels when new information suggests that fur ther warnings or instructions are needed. To conclude that FIFRA preempts state common law remedies ignores the practical effect of the EPA requirements. There fore, the court concludes that state com mon law claims based on a failure to warn 2. Negligence =33( 1i Under Arizona law, artificial condition on the land, such as to hold possessor of land liable for bodily harm caused to tres passer by an artificial condition on the land when possessor knows that trespassers constantly intrude, is object such as fence. or modification made to . land such as theory are not preempted. trench. IV. CONCLUSION For the reasons set forth above, it is ORDERED that defendant ICIA's Mo tion to Dismiss is denied. SYSTEM^ 3. Railroads =276(1) Under Arizona law, railroad could not be held liable for failing to prevent tres passer from boarding its train on theory that railroad was possessor of land who maintained artificial condition on land which involved risk of death or serious bodily harm. Alfredo Jaime DELGADO, Plaintiff, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant. No. CIV 90-1225 PHX SMM. United States District Court, D. Arizona. Feb. 1, 1991. Trespasser who boarded train brought action against railroad, seeking to recover 4. Railroads <=276( I ) Under Arizona law, railroad was not negligent for failing to. prevent trespasser from boarding its train on limited area ex ception to possessor of land s nonliability to trespassers, where trespasser offered no evidence to show that people constantly intruded on particular area where he wait ed in yard without railroad's permission. 5. Negligence =52 Under Arizona law, person who main tains artificial condition on property must 888[)'-- V t J aiteriiauve can DCachieved only if all alter natives available with respect to utilization of the Deep Creek Further Planning Area are developed and studied on a clean slate. In this manner, the mandate of NEPA will remain effective. and, as a result, may not look to the gov ernment as his guarantor with respect to & the rental payments. Consequently, the t court deems it appropriate to DENY.Kohk man's motion for leave to file an amende^, answer. C. Lessee Kohlman Defendant Kohlman asserts his federal leases should be "set aside" and returned to application status, thereby preserving his preference right to the leases in the event they are ultimately reissued. In ad dition, Kohlman maintains that, as a matter of equity, the court should order restitution of the rentals he paid on the subject leases. Kohlman originally moved the court for leave to amend his answer to add a cross claim seeking the refund of the rental pay ments. The federal defendants opposed Kohlman's motion, asserting jurisdiction over Kohlman's claims vested in the United States Claims Court. Thereafter, Kohlman filed an amended motion, seeking leave to assert, as an alternative claim, five breach of contract claims seeking damages in the amount of $10,000 per claim. Kohlman expressly waived any recovery in excess of $10,000 per claim, so as not to preclude this court from exercising jurisdiction over his claims. CONCLUSION For the reasons set forth herein, the court holds: (1) that the actions of the defendant agencies allowing the issuance of oil and gas leases in the Deep Creek Further Plan ning Area are hereby set aside and the leases issued cancelled. The defendant agencies are enjoined from making further recommendations to lease and issuing leas es pending compliance with NEPA, agency regulations, and the ESA; ' (2) the motions for summary judgment on behalf of the federal defendants and defendant Kohlman are hereby DENIED; and (3) defendant Kohlman's motion to file an amended Answer is hereby DENIED. IT IS SO ORDERED. J wV________ k W iV( O | Y N U M R S Y S T IM > [8,9] The propriety of granting leave to amend pleadings is a matter vested in the sound discretion of the trial court. See, Mende v. Dunn & Bradstreet, Inc., 670 F.2d 129, 131 (9th Cir.1982); Jordan v. County of Los Angeles, 669 F.2d 1311 (9th Cir.1982), vacated on other grounds, 459 U.S. 810, 103 S.Ct. 35, 74 L.Ed.2d 48 (1982). In exercising this discretion, a court is to be guided by the underlying purpose of Rule 15--to facilitate decision on the mer its, rather than on the pleadings or techni calities. Id., citing, Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 102-103, 2 L.Ed.2d 80 (1957). [10] The court is compelled to DENY Kohlman's motion to amend. Kohlman paid the rentals on the subject leases de spite the knowledge of plaintiffs' environ mental challenge to the leases' validity. The court concurs with the federal defen dants' assertion that Kohlman knowingly David W. COUTURE v. DOW CHEMICAL U.S.A., an operating unit of The Dow Chemical Company; Sandoz Crop Protection Corporation; Platte Chemical Co., Inc.; American Cyanamid Company; Loveland Indus tries, Inc.; E.I. Dupont de Nemours & Co.; Monsanto Company; and WestChem, Inc., d/b/a West Chem Agricul tural. No. CV-91-087-BU. United States District Court, D. Montana, Butte Division. Oct. 2, 1992. Consumer brought strict liability ac tion against chemical manufacturers, based 1298 0(i`i i' ^ meaningful consideration of the no-action alternative can be achieved only if all alter natives available with respect to utilization of the Deep Creek Further Planning Area are developed and studied on a clean slate. In this manner, the mandate of NEPA will remain effective. C. Lessee Kohlman Defendant Kohlman asserts his federal assumed the business risk of an injunction L on manufacturers' alleged f. and, as a result, may not look to the gov consumer of dangers to his ernment as his guarantor with respect to . ! being associated with his us the rental payments. Consequently, the > hirers' herbicides. On manu court deems it appropriate to DENY Kohl i h'on for partial summary j man's motion for leave to file an amended j District Court, Hatfield, Chit answer. ; that Federal Insecticide, Fun;. > denticide Act (FIFRA) does CONCLUSION I state common-law claims fo: For the reasons set forth herein, the cated upon alleged inadequacy leases should be "set aside" and returned court holds: attendant to herbicide that hs to application status, thereby preserving (1) that the actions of the defendant tered with the Environment his preference right to the leases in the agencies allowing the issuance of oil and Agency (EPA) in accordance event they are ultimately reissued. In ad gas leases in the Deep Creek Further Plan dition, Kohlman maintains that, as a matter ning Area are hereby set aside and the Motion denied. of equity, the court should order restitution leases issued cancelled. The defendant of the rentals he paid on the subject leases. Kohlman originally moved the court for leave to amend his answer to add a cross claim seeking the refund of the rental pay ments. The federal defendants opposed Kohlman's motion, asserting jurisdiction over Kohlman's claims vested in the United States Claims Court. Thereafter, Kohlman filed an amended motion, seeking leave to assert, as an alternative claim, five breach of contract claims seeking damages in the amount of $10,000 per claim. Kohlman expressly waived any recovery in excess of agencies are enjoined from making further recommendations to lease and issuing leas es pending compliance with NEPA, agency regulations, and the ESA; (2) the motions for summary judgment on behalf of the federal defendants and defendant Kohlman are hereby DENIED; and (3) defendant Kohlman's motion to file an amended Answer is hereby DENIED. IT IS SO ORDERED. 1. Agriculture =9.13 States 18.65 Federal Insecticide, Fung denticide Act (FIFRA) does state common-law claims for cated upon alleged inadequacy attendant to herbicide that ha tered with the Environment. Agency (EPA) in accordance Federal Insecticide, Fungicide ticide Act, 24(a, b), as U.S.C.A. 136v(a, b). $10,000 per claim, so as not to preclude this 'o KEY NUMBER SVSTEM 2. Agriculture =9.12(1) court from exercising jurisdiction over his claims. T States =18.65 Preemptive reach of Fee [8,9] The propriety of granting leave to amend pleadings is a matter vested in the David W. COUTURE cide, Fungicide, and Rodentici FRA's) preemption provisions sound discretion of the trial court. See, Mende v. Dunn & Bradstreet, Inc., 670 F.2d 129, 131 (9th Cir.1982); Jordan v. County of Los Angeles, 669 F.2d 1311 (9th Cir.1982), vacated on other grounds, 459 U.S. 810, 103 S.Ct. 35, 74 L.Ed.2d 48 (1982). In exercising this discretion, a court is to V . fly designed to preclude states' DOW CHEMICAL U.S.A., an operatinj''bodies from mandating labelir. unit of The Dow Chemical Company;: aging requirements different Sandoz Crop Protection Corporation; imposed by the Environmenta Platte Chemical Co., Inc.; Americani Agency (PA) pursuant to FIF: Cyanamid Company; Loveland Indus-1 al Insecticide, Fungicide, and tries, Inc, E.I. Dupont de N e m o u'k -a r s Vn <- . / ' "W e , and be guided by the underlying purpose of Co, Monsanto Company; and Weesstrt|j lS6v(a.; b) 38 amen^et^ Rule 15--to facilitate decision on the mer its, rather than on the pleadings or techni Chem, Inc., d/b/a West Chem Agricul calities. Id., citing, Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 102-103, 2 L.Ed.2d 80 (1957). [10] The court is compelled to DENY Kohlman's motion to amend. Kohlman tural. No. CV-91-087-BU. United States District Court, D. Montana, Butte Division. Da_v_i_d M. McLean, Ray . ![night, Dahood, McLean & Ev onda, Mont., for Couture. U nder M ontana law, the m anufac paid the rentals on the subject leases de Oct. 2, 1992. er of a p ro d u ct w ho k now s or she non-obvious d an g ers in h ere n t in th spite the knowledge of plaintiffs' environ use of th e p ro d u ct m ay b e held liar mental challenge to the leases' validity. The court concurs with the federal defen dants' assertion that Kohlman knowingly l to adequately w arn potential users cCoonnssuummeerr brought strict -l-i-a-b--i-l-i-ty> a<f ggeerrss. dSee, sSttrreetich v. Hiltoonn--Dav tion against chemical manufacturers, basei Sterling Drug, inc., 214 M ont. PPLEMENT COUTURE v. DOW CHEMICAL U.S.A. 1299 Cite as 04 F.Supp. 1298 (D JH ont 1992) spmed the business risk of an injunetiai|| ., as a resulti may not look to the gpjfll nment as his guarantor with respect V e rental payments. Consequently, urt deems it appropriate to DENY Ko an's motion for leave to file an amend*$f iswer. -manufacturers' alleged failure to warn aumer of dangers to his physical wellhg assee%ted~with his use of manufac- V herbicides. JOn m anufacturers' mofor paxtiak^summary judgment, the ^District Court, Hatfield, Chief Judge, held f ttat Federal Insecticide, Fungicide, and Ro- INCLUSION fi ^ienticide Act (FIFRA) does not preempt P t e common-law claims for relief predi- For the reasons set forth herein, the? H ated upon alleged inadequacy of warnings urt holds: .f 'S ^.attendant to herbicide that has been regis- Gary L. Graham, Missoula, Mont., for Sandoz Crop. Robert M. Carlson, Corette, Pohlman, et al., Butte, Mont., for Dow Chem. & Amer. Cyanamid Co. Robert Planalp, Landoe, Brown, Planalp Braaksma P.C., Bozeman, Mont., for Westchem, Loveland Indus. & Platte Chemical, OPINION (1) that the actions of the defendant | | |;tered with the Environmental Protection -encies allowing the issuance of oil and'3 ^Agency (EPA) in accordance with FIFRA. is leases in the Deep Creek Further Plan* ff Si' " Motion denied. ng Area are hereby set aside and th*"IP HATFIELD, Chief Judge. In this diversity action, David Couture alleges the T-cell lymphoma from which he asqs. isupdiNcancelled. ,t The defendant Si is afflicted was caused by his exposure to 'encies are enjoined from making further :! 1 1 Agriculture =9.13 commendations to lease and issuing g t t e s =18.65 pending compliance with NEPA, agencyS | Federal Insecticide, Fungicide, and Ro- gulf s, and the ESA; gienticide Act (FIFRA) does not preempt (2) the motions for summary judgment >a jiitate common-law claims for relief predi i behalf of the federal defendants and j i c t e d upon alleged inadequacy of warnings fendant Kohlman are hereby DENIED; (Attendant to herbicide that has been regis id tered with the Environmental Protection (3) defendant Kohlman's motion to flle.'J Agency (EPA) in accordance with FIFRA. i amended Answer is hereby DENIED. ! Federal Insecticide, Fungicide, and Roden- IT IS SO ORDERED. \ tkide Act, 24(a, b), as amended, 7 | .S.C.A. 136v(a, b). herbicides manufactured and marketed by the defendant chemical companies. Cou ture's complaint advances several bases of recovery predicated upon various theories of tort law recognized in the State of Mon tana, including the theory of strict liability in tort. The strict liability claim is predi cated upon the defendants' alleged failure to adequately warn Couture of the dangers to his physical well-being associated with his use of the herbicides. The defendants move for partial sum KEY NUMBER SYSTEM > David W. COUTURE v. OW CHEMICAL U.S.A., an operating unit of The Dow Chemical Company; Sandoz Crop Protection Corporation; Platte Chemical Co., Inc.; American Cyanamid Company; Loveland Indus tries, Inc.; E.I. Dupont de Nemours.$ Co.; Monsanto Company; and WestChem, Inc., d/B /a West Chem Agricul-' 1 Agriculture =9.12(1) States =18.65 Preemptive reach of Federal Insecti cide, Fungicide, and Rodenticide Act's (Fi ll FRA's) preemption provisions was express ly designed to preclude states' rule-making bodies from mandating labeling and pack aging requirements different from those imposed by the Environmental Protection | Agency (EPA) pursuant to FIFRA. Federai Insecticide, Fungicide, and Rodenticide Act, 24(a, b), as amended, 7 U.S.C.A. 136v(a, b). mary judgment upon Couture's claim for relief that is predicated upon the defen dants' alleged failure to provide Couture, and other users, proper warnings regard ing the use of their respective herbicides. The defendants advocate the position that any state common law tort claim predicated upon an alleged inadequacy of the warn ings attendant the defendants' herbicides is preempted by the Federal Insecticide, Fun gicide and Rodenticide Act ("FIFRA") and corresponding regulations. See, 7 U.S.C. 136--136y; 40 C.F.R. 152-86 (1990).12 tural. A, No. CV-91-087-BU. - " 'ted States District ourt, D. Montana, David M. McLean, Ray J. Dayton, I Knight, Dahood, McLean & Everett, AnaIp eonda, Mont., for Couture. I. [1] The issue presented is whether FI FRA operates to preempt state common law claims for relief predicated upon an Butte Division. 1. U nder M o n ta n a law , th e m a n u f a c tu r e r o r sell (1984); Rost v. C.F. & I. Steel Corp., 189 M ont. Oct. 2, 1992. er of a product w ho know s or should know of non-obvious dangers in herent in the foreseeable 485, 616 P.2d 383 (1980). Consumer brought strict liability acn aeainst chemical manufacturers, based use of the p ro d u c t m ay be held liable fo r failing _to a d e q u a te ly w a r n p o te n tia l u se rs o f th o se dangers. See, Streich v. Hilton-Davis, a Div. of Sterling Drug, Inc., 214 M ont. 44, 692 P.2d 440 2. It is u ndisputed th at the herbicides at issue w ere properly registered and labeled in accor dance w ith the m andate of FIFRA. 891 j>?/9 1300 804 FEDERAL SUPPLEMENT COUT c alleged inadequacy of warning attendant to a herbicide that has been registered with the Environmental Protection Agency in accordance with F1FRA. The defendants acknowledge this court has previously rejected the position that state c o m m o n law tort claims are preempt ed by FIFRA. See, Montana Pole & Treating Plant v. IF. Laucks, 775 F.Supp. 1339, 1342-1345 (D.Moni.1991). The defen dants ask the court to retract its holding in L.Ed.2d 532 (1991), stands for the proposition that FIFRA does preempt state labeling requirements for pesticides. Finally, they suggest that this court should join the majority of federal circuit courts which have addressed the issue of whether FIFRA preempts state common law tort claims and have concluded that it does. The court finds none of the arguments presented by the defendantstobe particu- larly compelling. M H . m ;M M Montana Pole and find that FIFRA II. S preempts Couture from prosecuting the common law tort claims advanced by his complaint and entitles the defendants to summary judgment as a matter of law. The court, however, declines the defen Ouellette involved the preemptive scope of the Clean Water Act, 86 STAT. 816, as amended, 33 U.S.C. 1251et aeq. and, specifically, the question of whether "the Act pre-empts a common-law nuisance suit m M M m M III. The defendants cite the cour. sion of the Tenth Circuit Cour: in Arkansas-Platte & Gulf Pa Van Waters & Rodgers,. Inc':, S (10th; Cir.1992), petition for ce L.W. 3181 (U.S. July 30, 1992) (. wherein'the court specifically r "choice-of-reaction" analysis c and held that FIFRA preempt actions based on labeling and warn. 959 F.2d at 162. The hasten to note that the court in Platte viewed Montana Pole's Mortier to be in error in that consider the Supreme Court's ' between preemption of state rep the sale and' use of pesticides dants' invitation and reaffirms its holding filed in a Vermont court under Vermont S state's authority over labeling." in Montana Pole. law, when the source of the alleged injury at 163, n. 6 .4The criticism is un In Montana Pole, this court, cognizant is located in New York." 479 U.S. at 483, * ble in view of the Tenth Circuit's of the split extant among lower federal 107 S.Ct. at 807. Ouellette did not con- that Congress has occupied the ` courts upon the issue, followed the ratio elude that the Clean Water Act preempted of pesticide labeling, 959 F.2d at nale expressed by the D.C. Circuit Court of all common law nuisance suits concerning m conclusion based essentially upo Appeals in Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C.Cir.), cert, denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984). The court in Ferebee affirmed a jury verdict holding a manufacturer of the herbicide Paraquat liable under Maryland law for failure to warn of possible long water pollution, but held only that the Act "m preempts the common law of an affected state to the extent that state law may not M serve as a basis for imposing liability upon m an out-of-state source. 479 U.S. at 491- 494, 107 S.Ct. at 811-813. The holding of 1 the Court was compelled by the nature of m: press language of 7 U.S.C. 136 Tenth Circuit viewed a state's imp tort liability based upon a failure theory as tantamount to a state' tion of a labeling or packaging req within the meaning of section 136 In Montana Pole, this court c term health effects from exposure to the the regulatory framework of the Clean Wa- ft that the imposition of tort liabilit; manufacturer's product. The court con ter Act which, among other things, "makes ft failure to warn theory did not c cluded that FIFRA neither expressly, nor it clear that affected States occupy a subor- 1 the imposition of a labeling or p; by implication, preempted state common dinate position to source States in the fed- ft requirement. Rather, the court c<_ law tort actions. 736 F.2d at 1542. Adopt eral regulatory program." 479 U.S. at 491, I the imposition of such tort liability ing the rationale of Ferebee, this court 107 S.Ct. at 811. The Court's holding was X tuted regulation of the use and concluded that "states are free to regulate, necessary to preclude the affected state ft pesticides, a matter expressly rese through common law remedies, the use and from regulating the conduct of out-of-state ft the states pursuant to the " sale of [EPA-registered] pesticides." 775 sources. 479 U.S. at 495, 107 S.Ct. at 813. X clause". 7 U.S.C. 136v(a). Reco F.Supp. at 1344. There are three facets to the defendants' argument. First, they assert that the ra tionale of Ferebee, more particularly the "choice of reaction" analysis upon which the rationale is based, has been implicitly rejected by the United States Supreme Court in International Paper Co. v. Ouel lette, 479 U.S. 481, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987). Second, they contend that dictum expressed by the Supreme Court in Wisconsin Public Intervenor v. Mortier, -- U .S.-----, 111 S.Ct. 2476, 115 The Court viewed as "extraordinary" the 1 suggestion that Congress intended to toler- 1 ate common-law suits that would under- 1 mine the extensive regulatory structure of ft the Clean Water Act. 479 U.S. at 497,107 I S.Ct. at 814. Placed in their proper factual I context, the observations of the Court in ft Ouellette do not, contrary to the sugges- ft tion of the defendants, constitute a rejec- I tion of the "choice of reaction" analysis 1 critical to the rationale of Ferebee. See, ft Burke v. Dow Chemical Co., 797 F.Supp. X 1128 (E.D.N.Y.1992). ft that in areas which have been tradi reserved to the states, like tort la emption is not to be lightly infern 3. T h e p re e m p tiv e sc o p e o f th e 1965 Act 1969 A ct w a s fo u n d b y th e C o u rt to b e g: en tirely by th e express language in sect, o f each Act. T he 1965 Act con tain ed th e follow ing p tion language: (a) No statem ent relating to sm oki; health, o th er than th e statem ent requi. sectio n fo u r o f th is Act, shall be requi any cigarette package. (b) No statem ent relatin g to sm okii. health shall be required in the advertb 2D PPLEMENT COUTURE v. DOW CHEMICAL U.S.A. 1301 Cite a* 804 F.Supp 1298 (DJWont. 1992) Ed.2d 532 (1991), stands for the propost m that FIFRA does preempt state label* i requirements for pesticides. Finally, | ey suggest that this court should join the . ijority of federal circuit courts which | III. The defendants cite the court to the decijpiion of the Tenth Circuit Court of Appeals 'inArkansas-Platte & Gulf Partnership v. "'`Van Waters & Rodgers, Inc., 959 F.2d 158 court refused to read section 136v(b) so broadly as to exclude the several states from imposing tort liability upon the manu facturer of a product bearing an EPAapproved label. 775 F.Supp. at 1344-45. ve addressed the issue of whether FI* '(10th Cir.1992), petition for cert, filed, 61 Rather, the court viewed the imposition of 1A preempts state common law tort 1 LW. 3181 (U.S. July 30, 1992) (No. 92-203), tort liability upon a failure to warn theory lims and have concluded that it does, wherein the court specifically rejected the as a legitimate means whereby a state e court finds none of the arguments "choice-of-reaction" analysis of Ferebee, could regulate the use and sale of a prod asented by the defendants to be particu* and held that FIFRA preempts state tort uct. Id. ly compelling. actions based on labeling and failure to warn. 959 F.2d at 162. The defendants II. hasten to note that the court in Arkansas- Ouellette involved the preemptive scope Platte viewed Montana Pole's reliance on the Clean Water Act, 86 STAT. 816, as | Mortier to be in error in that it failed to ended, 33 U.S.C. 1251 et seq. and, if consider the Supreme Court's "distinction acifically, the question "of whether "the | between preemption of state regulation of t pre-empts a common-law nuisance suit the sale and use of pesticides, and the ad in a Vermont court under Vermont*., It-state's authority over labeling." 959 F.2d v, w the source of the alleged injury.,.^! .at 163, n. 6. The criticism is understanda locate^ in New York." 479 U.S. at 483, ' ble in view of the Tenth Circuit's conclusion 1 S.Ct. at 807. Ouellette did not con- -J that Congress has occupied the "sub-field" de that the Clean Water Act preempted of pesticide labeling, 959 F.2d at 163-64; a common law nuisance suits concerning conclusion based essentially upon the ex ter pollution, but held only that the Act *1 press language of 7 U.S.C. 136v(b). The tempts the common law of an affected ! Tenth Circuit viewed a state's imposition of te to the extent that state law may not f tort liability based, upon a failure to warn -ve as a basis for imposing liability upon - | theory as tantamount to a state's imposi out-of-state source. 479 U.S. at 491- tion of a labeling or packaging requirement 1, 107 S.Ct. at 811-813. The holding of | within the meaning of section 136v(b). Id. i Court was compelled by the nature of 1regulatory framework of the Clean WsAct which, among other things, "makes lear that affected States occupy a subor ate position to source States in the fed- 1 | In Montana Pole, this court concluded that the imposition of tort liability upon a failure to warn theory did not constitute the imposition of a labeling or packaging requirement. Rather, the court concluded .1regulatory program.". 479 U.S. at 491, the imposition of such tort liability consti S.Ct. at 811. The Court's holding was tuted regulation of the use and sale of :essary to preclude the affected state pesticides, a matter expressly reserved to m regulating the conduct of out-of-state the states pursuant to the "savings rces. 479 U.S. at 495, 107 S.Ct. at 813. clause". 7 U.S.C. 136v(a). Recognizing b Court viewed as "extraordinary" the. that in areas which have been traditionally The court finds its analysis to be conso nant with the recent decision of the United States Supreme Court in Cipollone v. Lig gett Group, Inc., -- U.S. -----, 112 S.Ct. 2608, 120 L.Ed.2d 407. Cipollone ad dressed the questions of whether the feder al Cigarette Labeling Act of 1965, or its successor, the Public Health Cigarette Smoking Act of 1969, operate to preempt state common law claims against cigarette manufacturers. -- U.S. a t -----, 112 S.Ct. at 2613-14, 120 L.Ed.2d at 418.3 The 1965 Act, the Court concluded, only preempted state and federal rule-making bodies from mandating particular cautionary state ments, but did not preempt state law dam age claims. At -----, ----- , 112 S.Ct. at 2618-2619, 2624, 120 L.Ed.2d at 424, 431. The 1969 Act, however, was found by the Court to have preempted state common law claims "based on a failure to warn and the neutralization of federally mandated warn ings to the extent that those claims rely on omissions or inclusions in respondent's ad vertising or promotions; [but the Act] does not preempt [state law claims] based on express warranty, intentional fraud and misrepresentation or conspiracy." At -------------, 112 S.Ct. at 2625, 120 L.Ed.2d at 431-432. gestion that Congress intended to toler* reserved to the states, like tort law, pre Of particular significance to the present common-law suits that would under- emption is not to be lightly inferred, the preemption analysis is the discussion of the e the extensive regulatory structure of i Clean Water Act. 479 U.S. at 497, 107 t. at 814. Placed in their proper factual 3. T h e p re e m p tiv e sco p e o f th e 1965 Act a n d the 1969 Act w as found by the C ourt to be governed entirely by the express language in section five any cigarettes the packages of w hich are la beled in conform ity w ith the provisions of th is Act. text, . observations of the Court in o f each Act. T he 1969 Act, in tu rn , utilized the follow ing illette do not, contrary to the suggeaof the defendants, constitute a rejec- ; of the "choice of reaction" analysis ;cal to the rationale of Ferebee. See, rke v. Dow Chemical Co., 797 F.Supp. 3 (E.D.N.Y.1992). The 1965 Act co n tain ed the follow ing preem p tion language: (a) No statem ent relating to sm oking and health, other than the statem ent required by section four of this Act, shall be req u ired on any cigarette package. (b) No statem ent relating to sm oking and health shall be required in the advertising of preem ption language: (b) No requirem ent or prohibition based on sm oking and health shall be im posed under State law w ith respect to the advertising or prom otion of any cigarettes the packages of w hich are labeled in conform ity w ith the pro visions o f th is Act. 893 P-I&l 1302 804 FEDERAL SUPPLEMENT Court in Cipollone of the general princi ples of preemption analysis. Reiterating that the "ultimate touchstone" of preemp ent from those required under this sub chapter. 7 U.S.C. 136v(a), (b). BEN Cite sas-Platte & Gulf Partnership further eroded by .the Supreme ( cision in Cipollone.6 The cour: the defendants' invitation to ac tion analysis is the purpose of Congress, the Court stated: When Congress has considered the issue of preemption and has included in the enacted legislation a provision explicitly addressing that issue, and when that pro vision provides a 'reliable indicium of congressional intent with respect to state authority,' Malone v. White Motor Corp. 435 U.S. 497, 505, 55 L.Ed.2d 443, 98 S.Ct. 1185 [1190 (1978) ], `there is no need to infer congressional intent to preempt state laws from the substantive provi sions' of the legislation. California [2] Affording section 136v(a), (b) the narrow construction mandated by the pre emption analysis utilized in Cipollone, this court reaffirms its holding in Montana Pole that states are "free to regulate, through common law remedies, the use and sale of pesticides." 775 F.Supp. at 1344. In this court's opinion, the preemptive reach of 7 U.S.C. 136v(a), (b), was ex pressly designed to preclude states' rulemaking bodies from mandating labeling and packaging requirements different from those imposed by the EPA pursuant to FIFRA. the defendants characterize as a rule. Therefore, for the reasons set f in, IT IS HEREBY ORDERED defendants' 'motions for partial s judgment be, and the same her DENIED. | K NUMBER SYSTEM> Federal Savings & Loan Assn. v. Guer ra, 479 U.S. 272, 282, 93 L.Ed.2d 613, 107 S.Ct. 683 [690] (1987) (opinion of Mar shall, J.). For purposes of preemption analysis, sec tion 136v(b) is indistinguishable from sec tion 5(b) of the Federal Cigarette Labeling m . and Advertising Act of 1965.4 Janice BENZLER, et al-, Plair v. STATE OF NEVADA, et al., Defe A t ----- , 112 S.Ct. at 2618, 120 L.Ed.2d at 423. Consequently, the Court emphasized that when Congress enacts a provision which expressly defines the preemptive reach of a statute, it must be implied that matters beyond that reach are not preempt ed. Id. In its enactment of FIFRA, Congress expressly defined the preemptive reach of FIFRA and, accordingly, the extent to which it intended to supersede an obvious historic police power of the States. Con gress defined the preemptive reach in FI FRA in the following language: (a) In General A State may regulate the sale or use of any federally registered pesticide . .. The language of section 136v(b) can No. CV-N-91-62-ECR. hardly be interpreted as providing "unam biguous evidence of a clear and manifest purpose of Congress to displace state sov United States District Court. D. Nevada. ereignty." See, Cipollone, -- U.S. at July 22, 1992. ----- , 112 S.Ct. at 2625-26, 120 L.Ed.2d at 433 .(Blackmun, J. concurring in part, con curring in the judgment in part, and dis State employees brought two ; senting in part). This court remains cir under the Fair Labor Standard cumspect in applying a broad preemption (FLSA). After consolidation of analysis which would displace state-law ijrplaintiffs moved for summary jud} and would extinguish an individual's right * The District Court, Edward C. Reed,. under state law to pursue a common law held that employees were not paid damage action. Cipollone, when consid salaried basis, so-as to exempt them ered in light of the Court's preemption : overtime provision of the FLSA, jurisprudence, mandates that caution. state docked accrued leave and com}, tory time for absences of less than one IV. and employees received compensatory 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 States shall not impose or contin ue in effect any requirements for label ing or packaging in addition to or differ- 4. O n e o t h e r c o u r t th a t h a s, s u b s e q u e n t to Cipol lone, a d d re s s e d th e p re e m p tiv e re a c h o f FIF R A h a s re a c h e d th e s a m e c o n c lu sio n . See, Burke v. Dow Chemical Co., supra. T h e c o u rt in Burke held that w hile FIFRA w ould preem pt a claim th a t a d e f e n d a n t's p ro d u c ts w e re m is la b e le d , it does not preem pt state com m on law claim s The final facet of the defendants' argu ment is of little compelling force. The holding of the Tenth Circuit Court of Ap peals in Arkansas-Platte & G ulf Partner ship is dearly at odds with this court's preemption analysis. The persuasive ef fect of the rationale expressed in Arkair b a se d u p o n a f a ilu r e to w a rn th e o ry o f liability. Id. T h e c o u rt in Burke view ed th e g en eral sav in g s c la u se set f o r th in se c tio n 136v(a), explicit ly a u th o riz in g e a c h s ta te to " re g u la te th e sale or u se" o f fe d e ra lly re g is te re d p e stic id e s w ithin !t> b o rd e rs , as c o m p e llin g a n "esp ecially cautious* p re e m p tio n a n a ly sis. Id. 5. D e fe n d a n t M o n sa n to C o m p a n y sugges; court should certify the issue of w hether F preem pts state com m on law tort claim s t N inth C ircuit fo r interlocutory appeal. U.S.C. 1292(b). Again, the S u p rem e Cl d e cisio n in Cipollone c o u n s e ls a g a in st c er. tion of this action fo r an interlocutory ac In holding the Public H ealth C igarette Sm c Act o f 1969 p re e m p te d sta te c o m m o n law ci based o n a "failure to w arn " th eo ry of Iiab th e C o u rt a ls o re c o g n iz e d th a t th e 1969 Ac: -n o t p re e m p t c o m m o n law c la im s based or. express w a rran ty , in te n tio n a l fra u d an d mic re se n ta tio n , o r c o n sp ira c y . A t ------ , 112 S.C 2624-25, 120 L.Ed.2d at 431-32. 894 PLEMENT lit from those required under this sul hapter. J.S.C. 136v(a), (b). 2] Affording section 136v(a), (b) tht row construction mandated by the preption analysis utilized in Cipollone, tha irt reaffirms its holding in Montana le that states are "free to regulate, ough common law remedies, the use and e of pesticides." 775 F.Supp. at 134i. this court's opinion, the preemptire ich of 7 U.S.C. 136v(a), (b), was exessiy designed to preclude states' ruleiking bodies from mandating labeling A packaging requirements different from-1 ose imposed by the EPA pursuant to .FRA. For nnrposes of preemption analysis, secon : I d) is indistinguishable from set on 5(Dj of the Federal Cigarette Label id Advertising Act of 1965.4 The' language of section 136v(b) ardly be interpreted as providing "unamiguous evidence of a clear and manifeit urpose of Congress to displace state reignty." See, Cipollone, -- U.S. -- , 112 S.Ct. at 2625-26, 120 L.Ed.2d' 33 .(Blackmun, J. concurring in part, coo' urring in the judgment in part, and d*' enting in part). This court remains cfr| umspect in applying a broad preempt^*) malysis which would displace state- liwf ind would extinguish an individual's mder state law to pursue a common tar iamage action. Cipollone, when consld*' ired in light of the Court's preemption mrisprudence, mandates that caution, `f-i IV. . >. The final facet of the defendants' argftj^ ment is of little compelling force. Tbf': holding of the Tenth Circuit Court of Apfj peals in Arkansas-Platted GulfPart ship is clearly at odds with this courf| pree- `ion analysis. The persuasive feet che rationale expressed in A b a se d u p o n a fa ilu re to w a rn th e o ry o f Iiab Id. T h e c o u rt in Burke view ed th e general i in g s c la u s e se t f o r th in s e c tio n 136v(a), expll ly a u th o riz in g e a c h s ta te to " re g u la te th e sab use" of fed erally reg istered pesticides within ^ b o rd ers, as com pelling an "especially cautiMj^J a n ajv sis. Id. BENZLER v. STATE OF NEV. Cite u 804 R Supp. 1303 (D-Nev. 1992) 1303 f..tas-Platte & Gulf Partnership has been or straight time cash for extra hours | further eroded by the Supreme Court's de- worked. ' dsion in Cipollone.* The court declines j the defendants' invitation to adopt what vthe defendants characterize as a majority Motion granted in part and denied in part. i f rale. ; Therefore, for the reasons set forth here 1. Labor Relations *=>1195 in, IT IS HEREBY ORDERED that the defendants' motions for partial summary judgment be, and the same hereby are, :DENIED. For an employee to be paid on a "sala ry basis," and therefore be statutorily ex empt from overtime provision of the Fair Labor Standards Act (FLSA), employee must receive each pay period a predeter W | KEY NUMBER S Y S U M > mined amount which is all or part of the compensation, and which is not subject to decrease due to variations in the amount or quality, of the work done. Fair Labor Stan dards Act of 1938, 13(a)(1), 29 U.S.C.A. 213(a)(1). Janice BENZLER, et al., Plaintiffs, See publication W ords and P hrases for other judicial constructions and v. definitions. ' STATE OF NEVADA, et al., Defendants. 2. Labor Relations =1195 No. CV-N-91-62-ECR. Docking accrued leave or compensato United States District Court, D. Nevada. July 22, 1992. ry time when state employees were absent for less than a day was indicative that employees were not paid on a salary basis, for purposes of determining whether they were salaried employees exempt from over I,'. . State employees brought two actions |aiider the Fair Labor Standards Act ||f!LSA). After consolidation of cases, iphintiffs moved for summary judgment. time provision of the Fair Labor Standards Act (FLSA). N.R.S. 281.1275, subd. 2; Fair Labor Standards Act of 1938, 13(a)(1), 29 U.S.C.A. 213(a)(1). iTiie District Court, Edward C. Reed, Jr., J., 3. Labor Relations <3=1195 ;Wd that employees were not paid on a lalaried basis, so as to exempt them from ?wertime provision of the FLSA, where f.ltate docked accrued leave and compensai'tory time for absences of less than one day, pad employees received compensatory time State employees' receipt of compensa tory time or straight time cash for extra hours worked was indicative that employ ees were not being paid on a salary basis, for purposes of determining whether em ployees were exempt from overtime provi- I.- D efendant M o n sa n to C o m p a n y su g g e sts th e 'court sh o u ld c e rtify th e issu e o f w h e th e r FIF R A . preem pts sta te c o m m o n law to rt c la im s to the ti-Nlnth C ircuit fo r in terlo cu to ry appeal. 28 |iU.S.C. 1292(b). A gain, th e S u p re m e C o u rt's f y decision in Cipollone c o u n se ls a g ain st certific a^ ilon of th is a c tio n f o r a n in te rlo c u to ry ap p ea l. ^ ;| ln holding the Public H ealth Cigarette Sm oking "i : Act of 1969 p re e m p te d s ta te c o m m o n law c la im s ' based on a "failure to w arn " theory of liability, the Court also recognized th a t the 1969 Act did >tot p re em p t c o m m o n law c la im s b a se d o n a n ~press w arranty, intentional fraud and m isrepsen tatio n , o r c o n sp ira c y . A t ------ , 112 S.C t. a t p 6 2 4 -2 S , 120 I_Ed.2d at 431-32. In the present case, C outure alleges several al ternate bases of recovery. Consequently, the co u rt is u nable to conclude that an im m ediate appeal of th e issue of w hether FIFRA preem pts com m on law claim s predicated upon a "failure to w arn" theory of liability w ould m aterially advance the ultim ate term ination of this litiga tion. A dditionally, cognizant of the pendency of a petition fo r certio rari to the U nited States S u p rem e C ourt in Arkansas-Plane & Gulf Part nership, the c o u rt is c o n fid e n t the p re e m p tio n issue will be resolved by the United States S u prem e C ourt in o rd er to resolve the obvious split extant betw een the circuit courts of appeal. 895 M 33 1528 736 FEDERAL REPORTER, 2d SERIES UNITED STATES COURT OF APPEALS Eleventh Circuit DENIALS OF REHEARING EN BANC (Rule 35 Federal Rules of Appellate Procedure; Local Eleventh Circuit Rule 26) . Group 1--Denials where no member of the panel nor Judge in regular active service on the Court requested that the Court be polled on rehear ing en banc. Group 2--Denials after a poll requested by a member of the panel or a Circuit Judge in regular active service. Group 3--Denials on the Court's own motion after a poll requested by a member of the panel or a Circuit Judge in regular active service. T itle Docket N um ber ----------------- - GROUP 1 .................................................. Bowden v. F ra n c is ............................................. 83-8426 Kirkw ood v. H e ck le r......................................... 83-7591 R aulerson v. W ain w rig h t..................................83-3541 S im anonok v. C.1.R.............................................83-3396 U.S.V. V a n c e ....................................................... 83-8525 Date of D enial 6 /2 2 /8 4 6 /1 4 /8 4 6 /1 1 /8 4 6 /2 2 /8 4 6 /2 2 /8 4 Citation of Panel Decision M.D.Ga., 733 F.2d 740 S.D.Ala., 733 F.2d 906 M.D.Fla., 732 F.2d 803 U.S.T.C., 731 F.2d 743 N.D.Ga., 730 F.2d 736 o oo Lo CO 3d T 3 R ich a rd L ean d er F E R E B E E , Jr., et al. v. CHEVRON CHEM ICA L COMPANY, A ppellant. No. 83-1106. sta te shall n o t im pose o r continue in effect any requirem ents fo r labeling in addition to those required under the A ct does not pre em pt sta te to rt su its based on inadequacy o f an E PA -approved label. Affirm ed. U nited S tates C ourt of Appeals, D istrict of Columbia C ircuit A rgued Oct. 31, 1983. Decided Ju n e 12, 1984. 1. F e d e ra l C o u rts ='428 S ubstantive elem ents of cause of ac tion created by federal w rongful death statu te are defined by reference to state law. 16 U.S.C.A. 457. A gricultural w orker a t governm ent ag ricultural research center b ro u g h t action a g ain st m an u factu rer of p araq u at, alleging th a t he contracted pulm onary fibrosis as a re su lt o f long-term skin exposure to dilute solutions of paraquat. W hen w orker died before trial, his estate continued with a survival action and a w rongful death count w as added on behalf of his m inor children. The U nited States D istrict C ourt for the D istrict of Columbia, Louis F. Oberdorfer, J., entered judgm ent on a ju ry verdict on th e w ro n g fu l d eath co u n t fo r $60,000 against m anufacturer, and m anufacturer appealed. The C ourt of A ppeals, Mikva, C ircu it Ju d g e , held th a t: (1) it is s ta te law in e ffe c t a t tim e o f in ju ry th a t governs in suits brought under federal statu te creat ing cause of action for w rongful death o ccu rrin g on fed eral p ro p erty ; (2) th ere w as sufficient evidence of causation to ju st ify subm ission of issu e to ju ry ; (3) ju ry c o u ld h a v e fo u n d t h a t m a n u f a c tu r e r 's know ledge of link betw een d erm al p ara q u at exposure and lung disease w as suffi cient to require m ore detailed label than th a t w hich w as provided; (4) evidence sup p o rte d ju r y 's fin d in g t h a t in a d e q u a te lab el in g w a s p ro x im a te c a u s e o f w o rk e r's p u l m onary fibrosis, notw ithstanding fact that w orker failed to read label th a t w as provid ed; (5) fa c t th a t E n v iro n m en tal Protection A g e n c y d e te rm in e d t h a t m a n u f a c tu r e r 's la bel w as adequate for purposes of Federal Insecticide, Fungicide, and Rodenticide A ct did not compel jury to find th a t label w as also adequate for purposes of state tort law ; a n d (6) sectio n o f A c t p ro v id in g t h a t a 2. U nited S ta te s =78(14) S tate law in effect a t tim e of injury governs in suits b ro u g h t under federal sta tu te providing cause o f action for w rongful death occurring on federal prop erty , and n o t th e sta te law in effect a t tim e federal governm ent acquired the relevant property. 16 U.S.C.A. 457. 3. F e d e r a l C o u r ts =765 A n a p p e lla te c o u r t's fu n c tio n in re view ing denial of a ju d g m en t notw ithstand in g th e v e rd ic t is v e ry lim ited; ju r y 's v e r dict m u st stan d unless the evidence, togeth e r w ith all inferences th a t can reasonably be draw n therefrom is so one-sided th at reasonable m en could n o t disagree on the verdict. 4. F e d e r a l C o u r ts =>765 In review ing denial of judgm ent not w ithstanding the verdict, appellate court does not assess w itness credibility nor w eigh evidence, b u t ra th e r seeks to verify only th a t fair-m inded ju ro rs could reach the verdict rendered. 5. E v id e n c e =574 In a b attle of experts, ju ry m ust decide the victor. 6. E v id e n c e =>555.5 P roducts L iability =43 In a p roducts liability action involving a chem ical, a cause-effect relationship need n o t be clearly established by anim al or epidem iological studies before a doctor can testify th a t,'in his opinion, such a relation ship exists; as long as the basic methodolo- 1530 736 FEDERAL REPORTER, 2d SERIES g y em ployed to reach such a conclusion is sound, such as use of tissue sam ples, stan dard tests, and patient exam ination, prod ucts liability law does not preclude recov ery until a "statistically significant" num b er o f people have been injured or until science has had th e tim e and resources to com plete sophisticated laboratory studies o f the chem ical. 7. E viden ce =512 F act th at case of agricultural w orker who contracted pulm onary fibrosis from long-term skin exposure to dilute solutions of p araq u at m ay have been first of its exact type, o r th a t his doctors m ay have been th e first alert enough to recognize such a case, did not m ean th a t testim ony of doctors, w ho w ere well qualified in th eir fields, should n o t have been ad m itted in subsequent w rongful death action against m anufacturer of paraquat. 8. A g ric u ltu re =9.13 In w rongful death action alleging th at agricultural w orker contracted pulm onary fibrosis as a resu lt of long-term skin expo su re to dilute solutions of p araquat, there w as sufficient evidence, including testim o ny of treatin g physicians, both em inent spe cialists in pu lm o n ary m edicine, th a t p a ra q u a t poisoning w as cause of illness and death, to justify subm ission of causation issue to jury. 9. A g r ic u ltu r e =9.13 In w rongful death action arising from death of agricultural w orker who contract ed pulm onary fibrosis as a resu lt of long term skin exposure to dilute solutions of paraq u at, ju ry could have found th a t on la st date on which w orker sprayed para q u a t, m a n u f a c tu r e r 's k n o w le d g e o f link b e tw een derm al paraq u at exposure and lung disease w as sufficient to require m ore de tailed label than th a t which w as provided; m oreover, m an u factu rer could n o t escape its duty to w arn by assertin g th a t it had in su fficien t know ledge o f p a rtic u la r w ay in w h ich w o rk e r's lu n g d ise a s e cam e a b o u t. 10. A g ric u ltu re =9.13 J u ry in w rongful d eath action arisin g from death of agricultural w orker from pulm onary fibrosis as a result of long-term skin exposure to dilute solutions of p ara q u a t w as entitled to find it reasonably fore seeable th a t illness of general type from which w orker suffered, fibrotic lung dis ease leading to death, could be caused by derm al exposure to paraquat, and fact th at c a s e s e x a c tly lik e w o rk e r's, involving d ilu te solutions of herbicide and chronic ra th e r than acute injury, had not previously been called to m an u fa ctu re r's attention did not attenuate its duty to w arn against general danger of lung disease and death attributa ble to derm al exposure to paraquat. 11. P ro d u c ts L ia b ility =27 P la in tif f 's f a ilu r e to re a d a w a rn in g actually provided m ay a t tim es absolve a m an u factu rer o f liability. 12. A g ric u ltu re =9.13 Ju ry could find th a t failure of m anu facturer of p araquat to w arn th at derm al p a raq u a t exposure could produce serious lung disease and death was proxim ate cause of illness and death of agricultural w orker from pulm onary fibrosis contracted as a re su lt o f long-term skin exposure to p a raq u a t, n o tw ith stan d in g claim th a t w ork e r did n o t re ad label provided and th a t a m ore detailed label w ould have done noth in g to p r e v e n t w o r k e r 's in ju rie s, since ju r y could properly have inferred that, had a w arning about danger of disease from der m al exposure been included on label, w arn ing would have been com m unicated to w orker by supervisors and th a t he would as a resu lt have acted differently, or jury could have inferred th a t an adequate w arn in g w o u ld h a v e led w o rk e r's em p lo y e rs to undertake steps th a t would have protected him from p a raq u a t poisoning. 13. P ro d u c ts L iab ility =27 A m an u fa c tu re r is entitled to assum e th a t w arn in g s given will be heeded. 14. A g ric u ltu re =9.13 A g ric u ltu ra l w o rk e r's a lle g e d fa ilu re to read label on p a ra q u a t container did not constitute m isuse as a m atter of law, w here m anufacturer failed to w arn w orker ade quately th a t derm al exposure to p araquat FEREBEE v. CHEVRON CHEMICAL CO. 1531 C ile u 736 F J d 1529 (1984) could seriously injure him, and as a result, n o t preem pted by section o f Federal Insec w o rk er could n o t have know n th e resu lts ticide, Fungicide, and R odenticide A ct pro th a t m ight follow from his failure to heed a viding th a t a sta te m ay n o t im pose or con w arning th a t w as not given. tinue in effect any requirem ents fo r label 15. A g r ic u ltu r e <$=9.13 F act th a t E nvironm ental Protection Agency determ ined th a t p araq u at m anufac t u r e r 's lab el w a s a d e q u a te f o r p u rp o s e s o f Federal Insecticide, Fungicide and Rodenticide A ct did n o t compel ju ry in w rongful death action arising from death of agricul tu ral w orker who contracted pulm onary fi brosis as a resu lt of long-term skin expo sure to p araq u at to find th a t label w as also adequate for purposes of state to rt law as well. F ed eral Insecticide, Fungicide, and Rodenticide Act, 2 e t seq., as am ended, 7 U.S.C.A. 136 e t seq. ing different from those required under the A ct, in view of fact th a t C ongress has not explicitly preem pted sta te dam age actions, th a t compliance w ith both federal and state law cannot be said to be im possible since m anu factu rer can continue to use EPA-approved label and can a t sam e tim e pay dam ages to successful to rt plaintiffs or can petition E PA to allow label to be m ade m ore com prehensive, and th a t state to rt actions based on inadequacy of label do not stand as an obstacle to accom plishm ent of purposes of Act. Federal Insecticide, F un gicide, and R odenticide A ct, 24(b), as am ended, 7 U.S.C.A. 136v(b). 16. S ta te s <=4.13 If a state chooses to re stric t pesticide use by requiring th a t a m anufacturer com pensate for all injuries or fo r som e injuries Appeal from the U nited States D istrict C o u rt fo r th e D istrict o f C olum bia (Civil resulting from use of a pesticide, Federal A ction No. 81-01129). Insecticide, Fungicide, and R odenticide A ct is no barrier. F ed eral Insecticide, F ungi cide, and R odenticide Act, 2 e t seq., as am ended, 7 U.S.C.A. 136 e t seq. 17. S ta te s =4.10 H istoric police pow ers o f sta te s are n o t to be superseded by federal legislation un less th at was clear and m anifest purpose of L oren Kieve, W ashington, D.C., w ith w hom L aidler B. M ackall, W ashington, D.C., w as on the brief, fo r appellant. R o b e rt C ase L iotta, W ashington, D.C., w ith w hom N a th an I. F inkelstein and Dian a J . Sim on, W ashington, D.C., w ere on the brief, for appellees. Congress; such "clear and m anifest pur p o se" will e x ist w hen C ongress h a s explic itly preem pted the precise and specific sta te action, w hen compliance w ith both B efore W ALD and M IKVA, C ircuit Judges, and BAZELON, Senior C ircuit Judge. federal and sta te law would be im possible, o r w h e n s t a t e 's law s ta n d s a s a n o b sta c le to accom plishm ent of full purposes and ob jectives of Congress. Opinion fo r the C ourt filed by C ircuit Ju d g e M IKVA. M IKVA, Circuit Judge: 18. P ro d u c ts L ia b ility =87 M ere compliance w ith federal or state regulatory labeling requirem ents does not preclude a ju ry from finding th a t additional w arnings should have been given by m anu facturer. This is an appeal by Chevron Chemical Company from a judgm ent rendered a g a in st it a fte r a ju ry trial in a su it b ro u g h t by the m inor children and the estate of Richard Ferebee. Ferebee, an agri cultural w orker a t the B eltsville A gricultu ral R esearch C enter (BARC), an installs- 19. S ta te s =4.10 tion of the U nited S tates D epartm ent of S tate to r t su its a g ain st m an u factu rers A g riculture located in Beltsville, M aryland, based on inadequacy of a label approved by allegedly contracted pulm onary fibrosis as th e E nvironm ental P rotection A gency are a re su lt o f long-term skin exposure to di- f f F | t : f i ; 1 \ c \ | jt j j | j j \ j j j j 1532 736 FEDERAL REPORTER, 2d SERIES lute solutions of paraquat, a.herbicide dis began spraying paraquat in the summer of tributed in the United States solely by 1977. He ordinarily sprayed six or seven Chevron. When Ferebee died before trial, times a month for between one and three his estate continued with a survival action hours. He used the product regularly dur and a wrongful death count was added on ing the outdoor growing seasons of 1977, behalf of his minor children. After a first 1978, and 1979. trial ended in a mistrial, a second jury returned a verdict on the wrongful death count for $60,000 against Chevron. That verdict was based on the theory that Chev ron's failure to label paraquat in a manner which adequately warned that long-term skin exposure to paraquat could cause seri ous lung disease made Chevron strictly lia ble for Ferebee's injuries. When Mr. Ferebee sprayed paraquat in the fields, he frequently got the dilute spray on his skin, typically when he used his hands to shield plants while he sprayed weeds growing around them. In addition, in a videotape deposition taken before his death, Mr. Ferebee described two incidents of more extensive exposure to paraquat. The first occurred soon after he began After unsuccessfully moving for a direct spraying the compound. On that day, Fer ed verdict and a judgment notwithstanding ebee spent several hours walking behind a the verdict, 552 F.Supp. 1293, Chevron now tractor that was spraying paraquat. His asks this court to overturn the jury's ver head and bare arms became drenched with dict. Chevron's appeal offers a plethora of spray. At the end of the day, he began to bases upon which it asserts that the jury's feel dizzy and exhausted. When he went verdict was in error. Essentially, these home, he was too tired to wash or change claims divide into two groups, the first of his clothes and fell asleep instantly. The which attacks the jury's verdict as incon dizziness and other symptoms did not per sistent with the evidence and the second of sist, however, and he later returned to which asserts that federal law precludes work. the tort action upon which Ferebee's chil Mr. Ferebee's second major exposure to dren recovered. We find all of Chevron's paraquat also occurred during the 1977 claims to be without merit and affirm the growing season. On that occasion, he was district court's judgment upholding the spraying paraquat with a hand-held spray jury verdict. er for some time when he noticed that the sprayer was defective and had leaked para B ackground quat solution all over his pants. He Paraquat is an important agricultural stopped spraying and cleaned up as much herbicide that has been sold in the United as possible, but was not able to change his States since 1966. Paraquat is known to clothes until he went home. be toxic and to cause acute injury if direct ly absorbed into the body. For this reason, the sale and labelling of paraquat has been extensively regulated since 1966 by the fed eral government, first by the Department of Agriculture and currently by the Envi ronmental Protection Agency (EPA). Even before 1977, Mr. Ferebee was not a picture of perfect health. He was over weight, suffered from high blood pressure, and had a life-long sinus problem. None theless, in late 1977, according to Mr. Fere bee's testimony, he began to notice a mark ed, change in his physical condition, most . At trial, the jury was presented with a notably increasing shortness of breath. complicated set of facts. In 1967 Richard Over the next several years, Mr. Ferebee's Ferebee began work as an agricultural condition progressively deteriorated. In CO worker at BARC. His job frequently re- November of 1979 he checked into Capital CO quired him to spray various chemicals, in- Hill Hospital, where Dr. Muhammad Yu Qf) eluding insecticides and herbicides, on suf, a pulmonary specialist, diagnosed Fer greenhouse plants and, in the summer, on ebee's disease as pulmonary fibrosis. Dr. plants outside in the fields. Mr. Ferebee Yusuf referred Mr. Ferebee to the National FEREBEE v. CHEVRON CHEMICAL CO. Cite as 736 F-2d 1529 (1984) 1533 Institutes of Health, where he was treated In the case of the death of any person during 1981 and 1982 by Dr. Ronald G. by the neglect or wrongful act of another Crystal, Chief of the Pulmonary Branch of within a national park or other place the Heart, Lung, and Blood Institute. Af subject to the exclusive jurisdiction of ter several consultations and tests, both the United States, within the exterior Drs. Yusuf and Crystal concluded that Fer boundaries of any state, such right of ebee's pulmonary fibrosis was caused by action shall exist as though the place paraquat poisoning. Mr. Ferebee's lung were under the jurisdiction of the State condition continued to degenerate, and on within whose exterior boundaries such March 18, 1982 he died. place may be; and in any action brought In the legal action prosecuted by Fere bee's estate and minor children, appellees presented both of Mr. Ferebee's treating physicians as expert witnesses. Both Dr. Yusuf and Dr. Crystal testified that, in their opinion, paraquat had caused Mr. Fer- to recover on account of injuries sus tained in any such place the rights of the parties shall be governed by the laws of the State within the exterior boundaries of which it may be. 16 U.S.C. 457 (1982) ebee's pulmonary fibrosis. To support this [1] The substantive elements of the view, they relied not only upon their own cause of action created by the federal observation of Mr. Ferebee and the medical wrongful death act are thus defined by tests performed on him, but also upon reference to state law. There is no dispute medical studies which, they asserted, sug in this case that the relevant state law by gested that dermal absorption of paraquat which the federal cause of action must be can lead to chronic lung abnormalities of defined is that of Maryland. There is a the sort characterized as pulmonary fibro dispute, however, as to the content of that sis. Appellees then argued to the jury that law. At the time of Ferebee's injury, Chevron had not adequately labelled para Maryland law recognized a cause of action quat to warn against the possibility that in strict products liability for failure to chronic skin exposure could lead to lung warn adequately of a product's inherently disease and death and that this failure was dangerous condition; it was according to a proximate cause of Mr. Ferebee's illness this law that the jury was instructed. At and death. Chevron appeals the jury's ver the time BARC became federal property in dict which was necessarily based on accept 1938, in contrast, Maryland tort law recog ance of this theory. nized a cause of action only for negligence. Chevron argues that the federal statute A nalysis We begin by determining the source and content of the cause of action upon which this suit is founded. Ferebee's exposure to paraquat occurred entirely at the Beltsville Agricultural Research Center (BARC). BARC is located on federal land, over which the federal government exercises incorporates only that state law which was in effect at the time the federal govern ment acquired the relevant property and that, given the state of Maryland law in 1938, it was error to allow plaintiffs, who had waived all claims sounding in negli gence, to take their case to the jury on a theory of strict products liability. "exclusive Legislation," U.S. Const, art I, [2] We reject Chevron's view, which 8, cl. 17. Accordingly, any right of ap amounts to the position that Section 457 pellees to recover for their alleged injuries requires the wrongful death law on federal must initially find its source in either feder enclaves to be frozen at the date of cession. al common law or federal statutory law. "The natural reading of the statutory lan Since 1928, a federal statute has provided guage is that the wrongful-death law of a just such a right in an act which creates a federal enclave should be identical to that cause of action for wrongful death occur of the surrounding state, whatever that ring on federal property: law might be and however it might change 1534 736 FEDERAL REPORTER, 2d SERIES over time." Vasina v. Grumman Corp., Nonetheless, Chevron seeks to overturn 644 F.2d 112, 117 (2d Cir.1981). In addition the jury's verdict on the theory that, with to the plain language of the statute, its the exception of the second element, the history and logic belie the argument that jury could not reasonably have inferred Congress intended a static, rather than a . from the conflicting testimony the exist dynamic, incorporation of state law. The ence of any of these elements. A review of federal act was passed in an effort to put tort victims on federal land on an equal footing with those injured just outside the boundaries of the federal enclave, see 69 Cong.Rec. 1486 (1928) (statement of Sena tor Walsh); it is implausible to ascribe to a Congress so intended a contrary aim to the conflicting testimony with respect to each of these elements makes it clear that Chevron cannot sustain the heavy burden it must carry to overturn a jury's verdict. We also reject Chevron's legal claim that other federal law preempts this tort action. saddle tort victims on federal land with the consequences of outdated legislation. We I. The J ury V erdict have no trouble agreeing with the numer A. , Standard of Review ous lower courts which have considered this question: Congress intended to allow the federal action to evolve concomitantly [3,4] An appellate court's function in reviewing the denial of a judgment not with changes in state law. See, e.g., Math is v. General Electric Corp., 580 F.2d 192, withstanding the verdict is very limited. "The jury's verdict must stand unless `the -194 (5th Cir.1978) (implicitly interpreting evidence, together with all inferences that 457 to apply current state law); Greene can reasonably be drawn therefrom is so v. Vantage Steamship Corp., 466 F.2d 159, one-sided that reasonable men could not 166 n. 9 (4th Cir.1972) (same); Muniz v. disagree on the verdict.'" Carter v. Dun- United States, 280 F.Supp. 542, 546 (S.D. can-Huggins, Ltd., 727 F.2d 1225 at 1227 N.Y.1968) (same). We hold that it is the (D.C.Cir.1984) (cited cases omitted). The state law in effect at the time of the injury appellate court does not assess witness that governs in suits brought under 457. credibility nor weigh the evidence, but rath Under that law as interpreted by the trial judge, appellees had the burden of proving, by a preponderance of the evidence, the following elements: (1) That paraquat proximately caused Mr. Ferebee's illness and death; (2) That paraquat is inherently danger ous; er seeks to verify only that fair-minded jurors could reach the verdict rendered. Cobum v. Pan American World Airways, Inc., 711 F.2d 339, 342 (D.C.Cir.1983). Chevron's burden on this appeal is thus "extremely heavy." Boutros v. Riggs Na tional Bank, 655 F.2d 1257, 1260 (D.C.Cir. 1981). (3) That Chevron knew, or should have known, at the time it sold the para quat used by Mr. Ferebee, that the chemical was inherently dangerous; These admonitions apply with special force in the context of the present action, in which an admittedly dangerous chemical is alleged through long-term exposure to have caused disease. Judges, both trial (4) That the resulting duty to provide an adequate warning of the danger was and appellate, have no special competence to resolve the complex and refractory caus not met; al issues raised by the attempt to link low- (5) That the inadequacy of the warning level exposure to toxic chemicals with hu proximately caused Mr. Ferebee's ill man disease. On questions such as these, ness and death. which stand at the frontier of current medi Chevron does not dispute that this is a cal and epidemiological inquiry, if experts correct statement of the elements neces are willing to testify that such a link exists, sary to recover under Maryland strict liabil it is for the jury to decide whether to credit ity principles in a failure-to-warn suit. such testimony. Against this background, tZ-tr 668 FEREBEE v. CHEVRON CHEMICAL CO. 1535 Cite *s 736 F d 1529 (1984) we turn to Chevron's claims that appellees introduced its own experts who were of the failed to establish the elements necessary view that Ferebee's illness was not caused to sustain a jury verdict in their favor. by paraquat, but the testimony of those B. Causation witnesses, who did not treat Mr. Ferebee or examine him, can hardly be deemed so sub Chevron first argues that the jury was obligated to reject appellee's theory that long-term exposure to paraquat caused Ferebee's illness and death. Chevron ac knowledges that paraquat is known to be toxic, but argues that it is only acutely toxic--that is, that any injuries resulting from exposure to paraquat occur within a stantial that the jury had no choice but to accept it. The experts on both sides relied on essentially the same diagnostic method ology; they differed solely on the conclu sions they drew from test results aiid other information. The case was thus a classic battle of the experts, a battle in which the jury must decide the victor. Jenkins v. very short time of exposure, such as days United States, 307 F.2d 637, 646 (D.C.Cir. or weeks, and that when exposure ceases, 1962). so too does the injury. In this case, Ferebee did not experience any of the symp toms of pulmonary fibrosis until late 1978, at which point it had been ten months since he last sprayed paraquat, and his chronic inflammatory lung disease continued to worsen long after his final use of paraquat in August of 1979. Plaintiffs' theory of recovery was thus that paraquat, when ab sorbed through the skin, can attack the lungs in such a way as to cause chronic and self-perpetuating inflammation. Chevron argues that there has never been any evi dence nor any suggestion that paraquat can cause chronic injury of this sort and that, in any event, Ferebee could not have been exposed to enough paraquat to injure him in this fashion. [6, 7] Chevron seeks to avoid this con clusion by asserting that expert opinion testimony must be generally accepted in the scientific community before it can be introduced as evidence and that the views of Drs. Crystal and Yusuf, while not reject ed by the medical community, are suffi ciently novel at this point as to be inadmis sible. As support for this proposition, Chevron cites the Maryland Court of Ap peal's statement in the criminal case of Reed v. State, 283 Md. 374, 381, 391 A.2d 364, 368 (1978): "before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular scientific field." The court in Reed, however, was referring to [5] The short answer to Chevron's ar the introduction of evidence based on novel gument is that two expert witnesses refut scientific techniques or methodologies, see ed it and that the jury was entitled to id. 391 A.2d at 367-68, and carefully distin believe those experts. Both Drs. Crystal guished the test applied to such evidence and Yusuf, who are eminent specialists in from that involved in the admission of sci pulmonary medicine and who were Fere entific opinion testimony that, while contro bee's treating physicians, testified that pa versial in its conclusions, is based on well- raquat poisoning was the cause of Fere- founded methodologies. ("The question of bee's illness and death. Both admitted that the reliability of a scientific technique or cases like Ferebee's were rare, but Dr. process is unlike the question, for example, Crystal identified three other cases he felt of the helpfulness of particular expert tes were similar to that of Mr. Ferebee. Chev timony to the trier of facts in a specific ron argues that these cases can be distin case."). Id. Thus, a cause-effect relation guished from Mr. Ferebee's, but it is not ship need not be clearly established by ani our role to decide the merits of Chevron's mal or epidemiological studies before a doc attempted distinctions; Dr. Crystal thought tor can testify that, in his opinion, such a the cases were similar, and the jury was relationship exists. As long as the basic entitled to believe him. Chevron of course methodology employed to reach such a con- 1536 736 FEDERAL REPORTER, 2d SERIES elusion is sound, such as use of tissue samples, standard tests, and patient exami nation, products liability law does not pre clude recovery until a "statistically signifi cant'' number of people have been injured or until science has had the time and re sources to complete sophisticated laborato ry studies of the chemical. In a courtroom, the test for allowing a plaintiff to recover E nvt'l L. R ev. 86, 100-1 0 3 (1980); s u re ly it would be rash fo r a court to declare as a m a tte r o f law th at, below a certain thresh old level o f exposure, derm al absorption of p araq u at has no detrim ental effect. W e therefore conclude th a t there was suffi cient evidence of causation to justify sub m ission of th a t issue to the jury. in a tort suit of this type is not scientific certainty but legal sufficiency; if reason able jurors could conclude from the expert testimony that paraquat more likely than not caused Ferebee's injury, the fact that another jury might reach the opposite con clusion or that science would require more evidence before conclusively considering the causation question resolved is irrele vant. That Ferebee's case may have been the first of its exact type, or that his doc tors may have been the first alert enough to recognize such a case, does not mean that the testimony of those doctors, who C. Foreseeability and Duty to Warn [9] Chevron next argues that, even if Ferebee's pulmonary fibrosis was caused by paraquat exposure, Chevron had no knowledge until this case that long-term dermal absorption of paraquat could induce pulmonary fibrosis; accordingly, Chevron claims, it cannot have been charged with a duty to warn against a danger that was not foreseeable at the time Ferebee was ex posed to paraquat. Chevron is correct that its duty to warn is limited to dangers that it knew or should have known about during are concededly well qualified in their fields, the time Ferebee was exposed to paraquat. should not have been admitted. See Chambers v. G.D. Searle & Co., 441 [8] Finally, Chevron argues that pert, Dr. Fisher, proved that it was physi cally impossible for Ferebee to have been exposed to enough paraquat to cause him any injury. Dr. Fisher's testimony, how ever, went only to the amount of paraquat necessary to cause the short-term illnesses itFFs..2Seduxpp2.6937(74,th38C1ir.(1D97.M7)d..19T75h)e, affd, 567 conclusion which Chevron would have us draw from this principle, however, is not correct. The jury could have found that, as of July 1979, the last date on which Ferebee sprayed paraquat, Chevron's knowledge of the link that have long been recognized to follow between dermal paraquat exposure and from paraquat exposure. Accepting Dr. lung disease was sufficient to require a Fisher's testimony as true, as plaintiffs did more detailed label than that which the not at trial, it still would not necessarily company provided. follow that the same amount is needed to In assessing Chevron's argument, it is trigger a chronic case like that which Fere necessary to consider the label which Chev bee allegedly contracted. The jury could ron did provide. That label contains sever therefore have concluded that Ferebee had al warnings about the danger of skin expo been exposed to'sufficient amounts of para sure to paraquat. For example, the label quat to cause the chronic disease from in large bold letters states: which he suffered--even if that exposure was not substantial enough to produce acute symptoms. The dose-response rela DANGER tionship at low levels of exposure for ad CAN KILL IF SWALLOWED mittedly toxic chemicals like paraquat is _ ohe of the most sharply contested ques- HARMFUL TO THE EYES AND SKIN -O tions currently being debated in the medi- The label also states that, in case of skin O cal community, see generally Leape, Quan- contact, the area exposed should be washed CD titative Risk Assessment in Regulation of immediately and that contaminated cloth Environmental Carcinogens, 4 H arvard ing may have to be removed. The label FEREBEE v. CHEVRON CHEMICAL CO. 1537 c u e u 736 F Jd 152 (1984) further notes that "prolonged contact" will In April of 1976 Chevron learned of a New cause severe irritation and that "repeated Guinea man who had his back painted with contact" may increase the danger of ab paraquat and died two days later. That sorption. same year, Chevron was informed of a The label thus does inform the user that 29-year-old worker from Malaysia who spilling paraquat on the skin may cause spilled paraquat on his lap and scrotal area immediate and perhaps severe skin irrita and died ten days later. These are but a tion. Yet nowhere does the label per few of the examples submitted to the jury suasively suggest that users whose skin of cases in which dermal paraquat expo comes into contact with the herbicide sure caused serious injury, including lung should be concerned about other possible disease and death. consequences of skin exposure--particular ly the specter of long-term lung disease culminating, perhaps, in death. (The label does note that repeated contact may in crease the danger of absorption, but there is no hint of the dangers that may attend absorption). The jury certainly could have concluded that, absent a more specific warning about the relationship between skin exposure and lung disease, the aver age reader of the label who got paraquat onto his skin would presume that, once no immediate and acute injury occurred, the user was safe and need not take further precautions--such as seeing a doctor, hav Chevron seeks to distinguish these inci dents and to establish compliance with its duty to warn by arguing that these inci dents all involved immediate internal com plications resulting from dermal paraquat exposure, whereas Ferebee suffered from delayed and prolonged pulmonary fibrosis. Chevron argues that it had no information that prolonged exposure to paraquat could cause a chronic illness like Ferebee's or that such illness could continue long after exposure to paraquat had ceased. But the fact that the injuries of which Chevron knew occurred much more quickly than the ing x-rays taken, or ceasing use of the prolonged illness through which Ferebee pesticide. suffered is no answer to Chevron's com Moreover, there can be no doubt that Chevron did by 1979 have sufficient infor mation regarding the general link between dermal paraquat exposure and lung disease that the company could have been charged with a duty to provide this more specific warning. First, Chevron does not dispute the fact that, since the early 1960's, it has been known that paraquat exposure can lead to fibrotic lung disease. Second, ex plete failure to warn that any such inju ries, whether immediate or latent, could result from dermal exposure to paraquat Had Chevron warned that dermal exposure could induce lung disease, the company conceivably might not have had the more focused duty to warn against the particular form and nature of the disease that Fere bee contracted. Absent a general warning about the relationship between such expo pert witnesses for both sides agreed at sure and lung complications, a relationship trial that, once paraquat enters the body, it about which the jury could reasonably have selectively attacks the lungs. Finally, the concluded Chevron had substantial knowl medical literature and the company's own edge, Chevron cannot escape its duty to incident reports catalogued cases in which warn by asserting that it had insufficient dermal exposure to paraquat in some cases knowledge of the particular way in which caused almost immediate death and in oth Mr. Ferebee's lung disease came about er cases caused rather immediate lung The label gave no indication at all that skin problems. For example, by 1976 Chevron exposure could produce lung disease of had learned of an incident in Israel in any sort, a failing upon which the jury which a man was accidentally sprayed with could ground liability. a jet of paraquat on his face, nose, mouth and hands; the man recovered after show [10] Chevron next argues that, if Fere ing some signs of pulmonary involvement. bee indeed died from chronic paraquat ex- V 1538 736 FEDERAL REPORTER, 2d SERIES posure of his skin, his case is So unique as to serious injury, that argument is belied to make him a hypersensitive plaintiff by the numerous cases in which paraquat against whose injuries Chevron is not obli absorption through previously intact skin gated to guard, see Chambers, supra. led to nearly immediate death. See supra Once again, however, Chevron has attempt pp. 1537-1538. Accordingly, Chevron can ed to define its duty at too specific a level. not, by pointing to the fact that Ferebee's If paraquat caused Mr. Ferebee's illness, skin was intact at the time of exposure, and the jury could reasonably conclude that avoid the jury's conclusion that the compa it did, there is nothing to suggest that ny knew or should have known that dermal another individual in Ferebee's position exposure to paraquat could cause serious would not also have been likely to contract lung disease or death. the disease. The jury was entitled to find it reasonably foreseeable that illness of the D. Inadequate Labelling as the Proxi general type from which Mr. Ferebee suf mate Cause of Mr. Ferebee's Pulmo fered--fibrotic lung disease leading to nary Fibrosis death--could be caused by dermal expo sure to paraquat. That cases exactly like Mr. Ferebee's,. involving dilute solutions of the herbicide and chronic rather than acute injury, had not previously been called to Chevron's attention does not attenuate the company's duty to warn against the gener al danger of lung disease and death attrib utable to dermal exposure to paraquat. See generally Billiar v. Minnesota Min ing and Manufacturing Co., 623 F.2d 240, 246 (2d Cir.1980) ("If the injury is reason ably foreseeable, however, even if rare, the Given that Chevron had a duty to warn that dermal paraquat exposure could pro duce serious lung disease and death, Mr. Ferebee was still required to show that Chevron's failure to perform that duty was a proximate cause of his illness and death. On appeal Chevron argues that the evi dence overwhelmingly suggests that Mr. Ferebee did not read the label that was provided and that a more detailed label thus would have done nothing to prevent Ferebee's injuries. seller cannot rely on its history of good [11,12] It is true that the plaintiff's fortune to exempt itself from liability."). failure to read a warning actually provided As a matter of law, we cannot hold it so may at times absolve a manufacturer of unforeseeable that dermal paraquat expo liability. See, e.g., Johnson v. Niagra Ma sure could lead to serious lung disease and chines & Tool Works, 666 F.2d 1223, 1225 death that Chevron was insulated from any (8th Cir.1981). It is also true in this case duty to warn against such a possibility. that the district court expressed "some dif Chevron also claims that all cases of ficulty in agreeing that a rational jury dermal paraquat exposure producing seri could have found either that Mr. Ferebee ous injury were accompanied by skin le read the label or that the label was not sions which were present either before or adequately designed to attract attention." after the injury. Ferebee's skin was admit We need not reexamine the evidence to tedly intact before exposure and he testi decide this issue, however, for we hold that fied in deposition that he never experienced satisfaction of the proximate cause require a rash or any form of cracking or burning ment does not depend entirely on whether sensation. It is unclear whether Chevron Mr. Ferebee read the label. Instead, if the raises this point to negate causation or jury could reasonably have found that the foreseeability, but in either case, the point information on an adequately labelled para is unpersuasive. If the argument goes to quat bottle would have been communicated CD causation, it is again answered by credible to Mr. Ferebee--even if he personally did O expert testimony that paraquat did cause not read the warning--the failure to pro j. - ^ Mr. Ferebee's injuries. If Chevron's argu vide such a warning could validly be treat ment instead is that it had no notice that ed as a proximate cause of Mr. Ferebee's paraquat exposure to intact skin could lead pulmonary fibrosis. TO FEREBEE v. CHEVRON CHEMICAL CO. 1539 Cite u 736 F J d 1529 (1984) We live in an organizational society in failed to warn Ferebee adequately that der which traditional common-law limitations mal exposure to paraquat could seriously on an actor's duty must give way to the injure him. As a result, Ferebee could not realities of society. See, e.g., MacPherson have known the results that might follow v. Buick Motor Co., 217 N.Y. 382, 111 N.E. from his failure to heed a warning that was 1050 (1916) (eliminating "privity" require not given; he therefore cannot be charged ment for tort suits). In this case, Mr. with misuse. Ferebee did not purchase the paraquat for his personal use, and there was substantial evidence that workplace communication about the dangers associated with various chemicals usually took the form of oral instructions from supervisors to workers, the latter of whom then retransmitted the information to co-workers. This, rather than individual reading of product warn ings, is a typical method by which informa tion is disseminated in the modern work place. See Schwartz & Driver, Warnings in the Workplace: The Needfor a Synthe sis of Law and Communication Theory, 52 U .Cinn.L.Rev. 38, 66-83 (1983). The re In sum, the narrow standard of review of a district court's failure to grant a judg ment notwithstanding the verdict provides a very small window for appellant through which it has failed to pass. Sufficient evi dence supports the jury's finding that plaintiffs established all the elements of their case by a preponderance of the evi dence. We turn now to appellant's claim that the jury verdict should nonetheless be overturned because other federal law de mands that Chevron be immune from tort liability of the sort levied against it in this case. quirement that an improper warning proxi- mately "cause" the injury should be elabo rated against this background. We believe Maryland would construe its tort law in this case to require only that someone in the workplace have read the label, not that Mr. Ferebee personally have read it. Be cause there is no dispute that one or more employees at BARC did read the label, we hold that the jury could properly have in ferred that, had a warning about the dan ger of disease from dermal exposure been included on the label, that warning would have been communicated to Mr. Ferebee and that he would as a result have acted differently. Alternatively, the jury could II. P reemption Chevron contends that, because paraquat is sold in the United States only when accompanied by a label approved by the federal EPA, a state jury is not allowed in a tort suit to find that label inadequate. Chevron's contention on this point appears to be twofold: first, that EPA approval of the label requires a jury to find that label adequate, and second, that federal law preempts state common law actions against Chevron' which are based on the theory that paraquat was inadequately labelled. We reject both of these contentions. have inferred that an adequate warning Under the Federal Insecticide, Fungicide, would have led Ferebee's employers to un and Rodenticide Act, 7 U.S.C. 136 et seg. dertake steps that would have protected (1982) ("FIFRA"), EPA extensively regu him from paraquat poisoning--for exam lates the sale and labelling of paraquat. ple, provision of showers for use after The statute precludes EPA from authoriz spraying. ing the sale of paraquat unless the product, [13,14] Finally, Ferebee's alleged fail ure to read the label does not constitute misuse as a matter of law, see Levin v. Walter Kidde & Co., 251 Md. 560, 248 A.2d as labelled, will not cause "unreasonable adverse effects on the environment." 7 U.S.C. 136a(c)(5)(C). Such effects are in turn defined as 151 (1968). While a manufacturer is enti any unreasonable risk to man or the envi tled to assume that warnings given will be ronment, taking into account the econom heeded, see Restatement (Second) of Torts ic, social, and environmental costs and 402(A) comment j, in this case Chevron benefits of the use of [the] pesticide. 1540 736 FEDERAL REPORTER, 2d SERIES 7 U.S.C. 136(bb). The Act .further re chemical. Unless Congress intended to quires that the label be "adequate to pro preempt states from considering these is tect health and the environment" and that sues, a question we address below, there is it be "likely to be read and understood no reason a state need strike the same 7 U.S.C. 136(q)(l)(E). balance on these difficult questions as After extensive scientific testimony, EPA EPA. Assignment of values to such "soft" approved the sale of paraquat with the variables as human health is among the label which is at issue in this case. Accord most difficult tasks faced in a regulatory ing to Chevron, this approval constitutes an society, see N ational Academy of Sciences, expert, federal determination that paraquat Decision Making fob R egulating Chemi as labelled does not pose an unreasonable cals in the E nvironment 41 (1975), and a risk to the normal user--a determination state may choose to tip the scales more that a jury is not authorized to question. heavily in favor of the health of its citizens Because the trial court, applying state law, than EPA is permitted to by FIFRA. Simi instructed the jury that it could impose larly, a state heavily dependent on agricul liability only if paraquat was "unreason ture may consider use of paraquat more of ably dangerous" and the label "inade a benefit than a state whose economy is quate," Chevron concludes that the verdict primarily industrial, and both states may must be reversed. therefore reach a conclusion different from [15] Chevron's argument misunder stands the nature of the determination made by EPA and misconceives the relation between federal and state law. The fact that EPA has determined that Chevron's label is adequate for purposes of FIFRA does not compel a jury to find that the label is also adequate for purposes of state tort law as well. The purposes of FIFRA and those of state tort law may be quite dis tinct. FIFRA aims at ensuring that, from a cost-benefit point of view, paraquat as EPA's regarding the net benefit of para quat use. Unless FIFRA preempts a state from making these choices, a state jury may find a product inadequately labeled despite EPA's determination that, for pur poses of FIFRA, the label is adequate. EPA's determination may be taken into account by the jury, and the jury was in structed in this case that it was permitted to do so, but absent preemption the jury need not give that determination conclusive weight. labelled does not produce "unreasonable That brings us to the heart of Chevron's adverse effects on the environment." preemption claim: that FIFRA does pre State tort law, in contrast, may have broad empt states from reconsidering such ques er compensatory goals; conceivably, a label tions and that state tort suits of the sort at may be inadequate under state law if that issue here are completely preempted by the label, while sufficient under a cost-benefit Act. Chevron's position is grounded upon standard, nonetheless fails to warn against a section of FIFRA which provides that a any significant risk. In addition, even if state "shall not impose or continue in ef the ultimate purposes of federal and state fect any requirements for labeling ... in law in this area are the same, a state addition to or different from those required (acting through its jurors) may assign dis under this subchapter." 7 U.S.C. tinct weight to the elements which go into 136v(b). Chevron argues that a damage determining whether a substance as la action based on the inadequacy of a label belled is of sufficient net benefit as to has a regulatory aim--to assure that ade warrant its use. To approve use and sale quate labels are used--and that it is pre of paraquat, for example, EPA was re cisely this regulatory aim that FIFRA ex quired to assess inter alia the health risks plicitly preempts. from use of paraquat, to assign a cost Damage actions typically, however, can value to those risks, and to estimate the have both regulatory and compensatory benefit to society at large from use of the aims. Moreover, these aims can be dis- 9 0 2 Q4,3b F E R E B E E v. C H EV R O N C H E M IC A L CO. Clic u 736 F Jd 152 (19*4) 1541 tinct; it need not be the case, as Chevron 136v(a). See also S en.Rep. N o. 838 92d apparently assumes, that the company can Cong., 2d Sess. 30 (1982) reprinted in 1972 be held liable for failure to warn only if the U .S .C ode Cong. & A dmin.N ews 4021 ("Gen company could actually have altered its erally, the intent of the provision is to leave warning. (In any event, as we discuss to the States the authority to impose strict below, Chevron can take steps to alter its er regulation on pesticides uses than that label). In this case, a Maryland jury found required under the Act"); S en .Rep. N o. that the EPA-approved label did not suffi 970, 92d Cong., 2d Sess. 44 (1972) reprint ciently guard against certain injuries. ed in 1972 U .S .C ode Cong. & A dmin.N ews Even if Chevron could not alter the label, 4128 (same); see generally National Agri Maryland could decide that, as between a cultural Chemicals Association v. Rom- manufacturer and an injured party, the inger, 500 F.Supp. 465 (E.D.Cal.1978) (state manufacturer ought to bear the cost of may require additional data on EPA-regis- compensating for those injuries that could tered pesticides).. Given this provision, have been prevented with a more detailed Maryland might well have the power to ban ii.V' label than that approved by the EPA. That is, Maryland can be conceived of as having decided that, if it must abide by EPA's determination that a label is adequate, Maryland will nonetheless require manu facturers to bear the risk of any injuries that could have been prevented had Mary land been allowed to require a more de tailed label or had Chevron persuaded EPA that a more comprehensive label was need ed. The verdict itself does not command paraquat entirely. We need not decide that issue, however, to hold that, if a state chooses to restrict pesticide use by requir ing that the manufacturer compensate for all injuries or for some of these injuries resulting from use of a pesticide, federal law stands as no barrier. The fact that Congress has authorized this form of state action also disposes of any argument that such state tort remedies impose undue bur i'.' Chevron to alter its label--the verdict dens on interstate commerce. Southern merely tells Chevron that, if it chooses to Pacific Co. v. Arizona, 325 U.S. 761, 769, continue selling paraquat in Maryland, it 65 S.Ct. 1515, 1520, 89 L.Ed. 1915 (1945). may have to compensate for some of the As a result, Maryland is entitled to control resulting injuries. That may in some sense the use of paraquat for compensatory aims impose a burden on the sale of paraquat in by holding Chevron liable for injuries that Maryland, but it is not equivalent to a could have been prevented by a more ade direct regulatory command that Chevron quate label. change its label. Chevron can comply with Moreover, tort recovery in a case such as both federal and state law by continuing to this one may also promote legitimate regu use the EPA-approved label and by simul latory aims. By encouraging plaintiffs to taneously paying damages to successful bring suit for injuries not previously recog tort plaintiffs such as Mr. Ferebee. nized as traceable to pesticides such as [16] Imposition of such a dual obliga paraquat, a state tort action of the kind tion upon a manufacturer is permissible under review may aid in the exposure of under the Act. While FIFRA does not new dangers associated with pesticides. allow states directly to impose additional Successful actions of this sort may lead labelling requirements, the Act clearly al manufacturers to petition EPA to allow lows states to impose more stringent con more detailed labelling of their products; straints on the use of EPA-approved pesti alternatively, EPA itself may decide that cides than those imposed by the EPA: "A revised labels are required in light of the State may regulate the sale or use of any new information that has been brought to federally registered pesticide or device in its attention through common law suits. the State, but only if and to the extent the In addition, the specter of damage actions regulation does not permit any sale or use may provide manufacturers with added dy ! prohibited by this subchapter." 7 U.S.C. namic incentives to continue to keep | i 1542 736 FEDERAL REPORTER, 2d SERIES abreast of all possible injuris stemming does not preclude a [jury from] finding that from use of their product so as to forestall additional warnings should have been giv such actions through product improvement. en." Burch v. Amsterdam Corp., 366 That Maryland cannot directly order a A.2d 1079, 1086 (D.C.1976) (compliance change in the way in which paraquat is with labelling requirements of Federal labelled thus does not deprive the state of Hazardous Substances Act does not im legitimate aims which it is entitled to fur munize manufacturer from liability for de ther through the imposition of traditional fective warning); see also, e.g., Stevens v. tort liability. Parke, Davis & Co., 9 Cal.3d 51, 65, 107 [17] Moreover, in assessing Chevron'sCal.Rptr. 45, 53, 507 P.2d 653, 661 (1973) preemption argument and in defining the (compliance with warnings required by scope of the Act's preemption provision, it Food and Drug Administration not suffi is necessary to bear in mind, as Chevron cient to immunize manufacturer from liabil forgets, the circumspect view courts must ity); Biasing v. P.R.L. Hardenbergh Co., take of a claim that Congress has preempt 303 Minn. 41, 49, 226 N.W.2d 110, 115 ed states from exercising their traditional (1975) (compliance with federal and local police powers on behalf of their citizens. labelling requirements does not preclude The provision of tort remedies to compen finding of negligence); Maize v. Atlantic sate for personal injuries "is a subject mat Refining Co., 352 Pa. 51, 56, 41 A.2d 850, ter of the kind [the] Court has traditionally 853 (1945) (label approved by Surgeon Gen regarded as properly within the scope of eral not adequate as a matter of law); see state superintendence," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 144, 83 S.Ct. 1210, 1218, 10 L.Ed.2d 248 (1963). In such a case, we have been admonished to "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Rice v. Santa Fe generally Restatement (Second) of Torts 288c (1965) (Generally, "[c]ompliance with a legislative enactment or an adminis trative regulation does not prevent a find ing of negligence where a reasonable man would take additional precautions."). Giv en this general background of interpreta tive decisions against which Congress act ed, and given the clear authority of states Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. to regulate the "use" of paraquat, the Act 1146, 1152, 91 L.Ed. 1447 (1947). That cannot be said to express with the requisite clear and manifest purpose will exist when clarity an intent to bar damage actions Congress has explicitly preempted the pre based on the inadequacy of an EPA-ap cise and specific state action, when compli proved label. ance with both federal and state law would Second, compliance with both federal and be impossible, or when the state's law state law cannot be said to be impossible: stands as an obstacle to accomplishment of Chevron can continue to use the EPA-ap the full purposes and objectives of Con proved label and can at the same time pay gress. Silkwood v. Kerr-McGee Corp., -- damages to successful tort plaintiffs such U.S. ---- , 104 S.Ct. 615, 78 L.Ed.2d 443 as Mr. Ferebee; alternatively, Chevron can (1984). petition the EPA to allow the label to be [18,19] As we have indicated, none of made more comprehensive. these conditions is present in the instant Third, state damages actions of the sort case. First, Congress has not explicitly at issue here do not stand as an obstacle to preempted state damage actions; it has the accomplishment of FIFRA's purposes. merely precluded states from directly or Such a conflict would exist only if FIFRA dering changes in the EPA-approved labels. were viewed not as a regulatory statute As many state courts have recognized, in aimed at protecting citizens from the haz general the "mere compliance with [federal ards of modern pesticides, but rather as an or state] regulatory labeling requirements affirmative subsidization of the pesticide PASSAIC DAILY NEWS v. N.L.R.B. 1543 Clle u 736 F Jd 1543 (1984) industry that commanded states to accept achieve such a result; on the contrary, the use of EPA-registered pesticides. That protection of pesticide users and victims by interpretation of FIFRA, however, is pre both, federal and state law lies at the center cluded by both the explicit savings clause of the Act's design. Accordingly, we af at 7 U.S.C. 136v(b) and by the entire firm the decision of the district court and legislative history of the Act. Of equal allow the jury's verdict to stand. - importance, federal legislation has tradi tionally occupied a limited role as the floor It is so ordered. of safe conduct; before transforming such legislation into a ceiling on the ability of states to protect their citizens, and thereby radically adjusting the historic federal-state balance, United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971), courts should wait for a clear state ment of congressional intent to work such an alteration. The Supreme Court has of ten counselled such hesitance. Thus, in Nader v. Allegheny Airlines, 426 U.S. 290, PASSAIC DAILY NEWS, t/a the Herald 96 S.Ct. 1978, 48 L.Ed.2d 643 (1975), the News, Petitioner, Court held that, even were the Civil Aero nautics Board to find that an action was not a "deceptive" one within the meaning of the Federal Aviation Act of 1958, a state v. NATIONAL LABOR RELATIONS BOARD, Respondent. jury remained entitled to find that action fraudulent. That the action was permissi No; 83_i66j. ble under federal law did not mean, in the United States Court of Appeals, absence of a clear congressional intent to District of Columbia Circuit promote the action, that states were re quired to tolerate it. See also Silkwood v. Argued Jan. 24, 1984. Kerr-McGee Corp., -- U.S.---- , 104 S.Ct. Decided June 15, 1984. 615, 78 L.Ed.2d 443 (1984). So too in this case the fact that Congress has chosen to allow the states to regulate the use of pesticides approved by the EPA means that states retain the lesser power to control the use of such pesticides by requiring that at least some of the resulting injuries be com pensated. In response, Chevron perhaps will choose not to send paraquat into Mary land; perhaps the company will distribute additional information on paraquat to Maryland users; or Chevron may petition the EPA to be allowed to use a more de tailed label. What Chevron cannot do, however, is to force states, under the pur ported aegis of a statute aimed at protect ing against the hazards of modern pesti cides, to accept the use of paraquat and to tolerate uncompensated injuries to that state's citizens. Congress has not ex Employer newspaper petitioned for re view of an order of the National Labor Relations Board and the NLRB filed a cross application for enforcement of its or der. The Court of Appeals, Van Dusen, Senior Circuit Judge, sitting by designa tion, held that (1) record supported NLRB's finding that employer newspaper discontinued employee's weekly column be cause of his involvement in protected union activities in violation of the National Labor Relations Act, and (2) portion of enforce ment order requiring employer newspaper to resume publication of employee's weekly column impermissibly attempted to compel newspaper to publish what it preferred to withhold. pressed a "clear and manifest purpose" to Remanded. 958 771 FEDERAL SUPPLEMENT 363 N .E .2d 1048, 1051 (1977). P la in tiff has m ade no explicit a tte m p t to show th a t the d efen d an ts' publication in th e unem ploym ent proceedings w as m otivat ed by ill-will, su ch th a t th e c o u rt could infer a genuine dispute over the factual issu e o f b a d fa ith . H o w ev e r, p la in tif f 's AD EA claim rem ains a t issu e fo r the tim e being. W hile th ere is a possibility th a t plaintiff will establish th e desk inci dent w as a p retex t for age discrim ina tion, th e co u rt cannot conclude th e re is no genuine issue o f bad faith in th e de fendants' publication of a statem en t th a t they fired plaintiff for dishonesty. The court declined to rule on the sum m a ry ju d g m e n t m o tio n a s to p la in tif f 's d e f am ation claim pending resolution of th e A D EA claim. F o r reaso n s discussed ab ov e, th e p la in tiff's A D E A claim re m a in s pending. Accordingly, the plaintiff m ay y e t establish th at the defendants fired him because of his age, not because of any honestly held belief th a t he com m itted an act of dishonesty: If the defendants fired plaintiff because of his age, ra th e r than any honest belief th at plaintiff w as dishon est, then th eir publication of th e desk inci dent as an excuse for his term ination m ay well have been an a ct of bad faith. T here fore, a genuine issue of m aterial fact exists a s to p la in tiff's d e fa m a tio n claim , a n d he may present it to the jury. R ic k H E R R , in d iv id u a lly a n d a s yft , 1 n a tu r a l f a th e r o f A lle n H e r r , ; et ai., P lain tiffs, v. .'ftt CAROLINA LOG BUILDIN GS, IN C ., e t al.', D e f e n d a n ts . vrVi Jam es W ayne SCOTT, e t al., Plaintiffs?* -: . 'i. . V. -iiril CAROLINA LOG BUILDIN GS, INC., et al., D efendants. V8 Ja c k HART, individually and as natural s f a th e r o f J e w e le e H a r t, e t a l., . 'i am P laintiffs, v. ai: CAROLINA LOG BU ILD IN G S, .H 4' INC., et al., D efendants. jlq Lee B A RTLEY , et al., P laintiffs, CAROLINA LOG BUILDIN GS, INC., et al., D efendants. .^ D etrick B IC E, individually and as X N a tu r a l F a t h e r o f D e a n n B ice , ' et al., P lain tiffs, v. CAROLINA LOG BUILDIN GS, INC., e t al., D efendants. M ichael LO EH R , individually and as n atu ral fath er of M ichael Ruel L oehr, et al., P laintiffs, , IV. CONCLUSION Sum m ary judgm ent being inappropriate, th is c ase sh a ll p ro ceed to tria l on p la in tif f 's AD EA and defam ation claims. IT IS SO ORD ERED. C A R O L IN A L O G B U IL D IN G S , INC., et al., D efendants. Steven CLUTTER, individually and as > n atu ral fath er of Seth C lutter, et : 1 al., P lain tiffs, 1 O ^KEY NUMBERVSY.STEM/^ o cr> CAROLINA LOG BUILDINGS, INC., e t al., D efendants. Nos. EV 85-262-C to EV 85-268-C. ; U nited S tates D istrict Court, S.D. Indiana, E vansville Division. i & Sept. 22, 1989. iu; : ,S S u it w a s b r o u g h t b y p u r c h a s e r s o f lf> cabin k its a g a in st seller, alleg in g product* HERR v. CAROLINA LOG BLDGS., INC. 959 Cite u 771 F-Supp. 958 (S.D.Ind. 1989) r liability and negligence in connection with the kits had been treated with pentachloro-; :use of pentachlorophenol on interior walls, phenol (hereafter "penta"). Plaintiffs al f Seller moved for summary judgment on $ grounds that suit was preempted by Feder al Insecticide, Fungicide^apd Rodenticide Act (FIFRA). The Distip'lpourt, Brooks, Chief Judge, held th at'' FIFRA only preempted those claims having to do with lege that as a result of the use of penta in interior surfaces, they sustained physical injuries and their homes became unfit for habitation. Their amended complaints are in three counts. labeling and packaging of product covered In Count I, the plaintiffs contend that the by Act. chemicals, wood preservative, and treated Motion for summary-judgment granted building materials produced by the defen in part, denied in part. dants and put into the stream of commerce were unsafe for their intended use by rea Products Liability =43 son of the following defects: ' Federal Insecticide Fungicide and Ro (a) the building materials were treated denticide Act (FIFRA) provision that states could not impose requirements for labeling and packaging of items covered by statute in addition to or different from those re quired under statute, did not bar purchas ers of log cabin kits treated with chemicals subject to FIFRA from making state law based claims with respect to chemical and with various chemicals, including pen ta, and as such were unsafe for hu mans, plants, or animals; (b) the chemicals, wood preservative, and - treated building materials were not ' properly marked and labeled for the physical hazards involved, and failed to dangers thereof, other than those having to' adequately warn users of the proper, do-with labeling or packaging. Federal manner of use and magnitude of the Insecticide, Fungicide, and Rodenticide Act, risks involved; and ` { 24(a, b), as amended, 7 U.S.C.A. 136v(a, b). (c) the chemicals, wood preservative, and treated building, materials were im Michael D. Schwartz, Farrell & Schwartz, Minnetonka Corporate Center, Minnetonka, Minn., and Tyrone P. Bujold, James P. Coy, Susan Richard Nelson, Bar properly designed and tested for their intended use. In Count II, the plaintiffs contend that the defendants were negligent in the "test bara Colombo Nemess, Robins Kaplan Mil ing, inspection, design, manufacture, as ler & Ciresi, Minneapolis, Minn., for plain sembly, labeling, processing, use and mar tiffs. keting of the chemicals and of the wood Thomas H. Bryan, Fine & Hatfield, Ev preservative for their application to the ansville, Ind., and Robert Mark Field, Rob building materials." (Amended Complaint, ert A. McLean, McDonnell Boyd Smith & H26) The negligent acts of the defendants Solmson, Memphis, Tenn., for Chapman include "failure to reasonably test and in Chemical. spect the chemicals and the composition of John G. Crutchfield, Ewen MacKenzie & the wood preservative used to treat the Peden, P.S.C., Louisville, Ky., and Gerald building materials; failure to adequately ^Uega, Clark Statham McCray Thomas & warn foreseeable users of the physical haz Ktohn, Evansville, Ind., for Vulcan Materi ards involved in using the chemicals, the als Co.i wood preservative and the treated building i is.. MEMORANDUM materials; failure to design a label warning for the chemicals, for the wood preserva > BROOKS, Chief Judge. tive and for the treated building materials; \ The plaintiffs in these actions purchased failure to use proper chemicals in the man 'U"kgt.cabin kits. The building materials in ufacture of the wood preservative; failure 960 771 FEDERAL SUPPLEMENT to use proper wood preservatives in the 195 (N.D.U1.1988). This Court's review off manufacture of the building materials; and the' cases cited indicates a clear split ofi failure to produce a product which was authority on the preemption issue. ..'.jg'. suitable for residential construction and ad equate to withstand fire, twisting and rot." In Count III of the amended complaints, plaintiffs allege that the defendants knew of serious hazards to human health caused by exposure to building materials treated with penta and failed to fully disclose that information to these plaintiffs. Plaintiffs allege that they "relied upon these defen dants' continuing misrepresentations re garding the effects of, absence of risk in and safety associated with extensive expo sure within their log homes." Plaintiffs All cases cited do stand for the proposi?' tion that under preemption analysis it critical to look at the language of the stab1-, ute in question. Id. at 198. Subsections* 136v(a) and (b) of Title 7 of the United! States Code provide as follows: (a) A State may regulate the sale or use of any federally registered pesticidei or device in the State, but only if and to the extent the regulation does not permitj i any sale or use prohibited by this-sub- h . chapter. ->,Di' contend that their injuries were as a result ' (b) Such State shall not impose or con-3 of their reliance on these misrepresenta tinue in effect any requirements for la-j < tions. beling or packaging in addition to ori Defendant Reichhold has filed its Supple mental Motion for Summary Judgment different from those required under thisi ,, subchapter. . ;ns: which contends that these claims are .This Court concludes that the language^,f preempted by federal law, and particularly in 136v was intended to leave to the1 the Federal Insecticide, Fungicide and Ro- states the authority to impose stricter reg denticide Act (hereafter "FIFRA"), 7 ulations on pesticide use than that re-j U.S.C. 136, et seg. Defendant Reichhold quired under the Act. See also H.R. 10729;, contends that the clear language of FIFRA requires that it preempt these plaintiffs' S0 .RT>e--p--V. TN~ oA. f79A70n, o9.2Jnd C__o_n__g_.O, - 2J n0d__S_e__s_s!., printed in 1972 Cong.Code and A' r'de-*i claims for damages. Defendant Reichhold min.News 3993 at 4021, 4128 (emphasis . contends that the state law claims based on added). (Plaintiffs' Memorandum, Exhibit theory of negligent labeling and failure to 3) However, by equally impressive manda-,' , warn are preempted by FIFRA and point to tory language, subsection (b) of 136v` several state cases that have so concluded. does prohibit the state "imposing] or cori-^ ( (See cases cited in Exhibits B, C, and D of tinu[ing] in effect any requirements forj } the Supplemental Memorandum.) In addi labeling ... in addition to or different from^ tion, defendant Reichhold argues that this those required under this subchapter." Court should follow the rationale of Fitz The effect of these two provisions when gerald v. Mallinckrodt, Inc., 681 F.Supp. read together leads this Court to the same' i ,404 (E.D.Mich.1987), and Kennan v. Dow conclusion as Judge Black in Kennan u? J- Chemical Company, 717 F.Supp. 799 Dow, supra. A jury in this case is not J(M.D.Fla.l989). The plaintiffs respond preempted from finding that, for example,' 1 with the argument that there are limited the use of penta on interior surfaces was ' circumstances under which the doctrine of an unreasonably dangerous use of the! preemption will apply, particularly with re product, or that the product was defective- spect to the field of health and safety. for those purposes. Likewise, the jury; ;j. Plaintiffs contend that this Court should may conclude that penta was improperly: - follow Ferebee v. Chevron Chemical Co., designed and tested for its use in interior 736 F.2d 1529 (D.C.App.1984), and other surfaces. The jury may conclude that the y cases which have concluded that FIFRA defendants were negligent in failing to per- * does not preempt state tort claims. Those form reasonable tests and inspections on < cases include a case within this Circuit, the . chemicals, wood preservative, and[ Roberts v. Dow Chemical Co., 702 F.Supp. treated building materials to determine;' 904 d 333 PA TE L v. FL E U R D E L IS M OTOR IN N S, INC. 961 e lle u 771 Fupp. 961 (SJ>.Iowe 1991) their effects on human beings who live in tal Motion for Summary Judgment is DE; close proximity. The jury is free to find NIED. ->- that the defendants knew or should have known that these products cause serious hazards to human health and failed to dis close those facts to the Environmental Pro duction Agency (hereafter "EPA") or to the purchasers of the products through their written materials other than labels and/or through sales representatives. At trial, facts may or may not support any of H a rs h B h u p e n d r a b h a i P A T E L a n d U th- these theories. However, the clear lan guage of 7 U.S.C. 136v(b) precludes the jury from assessing liability because the k arsh B h u p en d rab h ai P a te l, as Co-ex ecutors of the E state o f B hupendra P a tel, P laintiffs, . v .. warning label approved by the EPA was v. not adequate for the task of warning po tential users of the hazards. The Court concludes that the area preempted by Con gress under FIFRA was a very limited one. The only aspect of the use of the pesticide FL E U R D E L IS M O TO R INNS, INC.; a n d G ilm er P o tte rie s, . Inc., D efendants, and which is preempted are those actions in S tate o f Iow a, Intervenor. volving "requirements for labeling or pack aging." In this case, plaintiffs are G IL M E R P O T T E R IE S , INC., preempted from recovering under subpara T h ird -P arty P laintiff, graph 17(B) and under paragraphs 26 and 27 for causes of action due to "negligent failure to design a label warning for the chemicals." All other causes of action re main viable. The Court believes that the PA SU TTI B R O T H E R S T IL E , INC., et al., T h ird -P a rty D efendants. Civ. No. 89-263-B . holding in Fitzgerald v. Mallinckrodt, su United States District Court, pra, which holds that the defendants have S.D. Iowa, C.D. a "choice of reaction" should be properly rejected in this case as it was in Palmer v. June 21, 1991. Liggett Group, Inc., 825 F.2d 620 (1st Cir. 1987). Facts found in jury verdicts in state tort claims may in fact cause the manufac turer to petition the EPA to change the warnings which it uses. However, under FIFRA, the jury may not determine that a deficiency in the label, in and of itself, requires a finding of liability for the plain tiffs' damages. i Therefore, this Court concludes that the Person injured when soap dish in shower at hotel detached from wall sued hotel and manufacturer..of the soap dish. On motion of manufacturer for summary judgment, the District Court, Vietor, Chief Judge, held that (1) soap dish was "im provement" within Iowa statute creating 15-year-period of repose with respect to improvements to real property; (2) where Supplemental Motion for Summary Judg cause of action had not accrued at time law s; ment should DENIED, in be GRANTED, in part, and part. The motion is GRANT became effective, plaintiff was not de prived of any property rights and thus ED and plaintiffs' amended complaints are right to due process under Iowa Constitu 4 hereby DISMISSED as to subparagraph tion was not infringed, though soap dish 17(B) and to those portions of paragraphs was installed before statute was enacted; 26 and 27 which claim causes of action (3) plaintiff did not have standing to assert related to negligent failure to warn or la that statute denied equal protection on bel. In all other respects, the Supplemen ground that it excluded owners, occupants 158 959 FE D E R A L R E PO R T E R , 2d S E R IE S ' .1- r I<-.i C the district court correctly looked to the 1. A g ric u ltu re =9.13 federal rule. Its judgment is ' States =18.65 : - ; AFFIRMED. " 1 Amended version of Federal Insecti cide, Fungicide, and Rodenticide.Act, rath er than pre-1972 version, applied in deter; mining whether Act preempted state law causes of action arising after 1972 when property was acquired in 1985 and found to be contaminated by pentachlorophenol in 1987; case did not present question of ret ARKANSAS-PLATTE & G U LF PA RT NERSH IP, a C olorado general p artn er ship, Plaintiff-A ppellee, roactive application of 1972 version of Act, even if cause of action ripened prior to 1972. Federal Insecticide, Fungicide; and Rodenticide Act, 2, as amended, 7 v. U.S.C.A. 136; 28 U.S.C.A. 1292(b). VAN W ATERS & R O G ER S, INC., a W ashington corporation; the Dow C hem ical Com pany, a D elaw are corpo ratio n , D efendants-A ppellants. 2. States =18.3 Burden of proving that federal law preempted state law claims was on defen dants. N ational A gricultural C hem icals A ssocia tion; W estern A gricultural C hem icals A ssociation; N ational P est C ontrol As sociation; N ational A gricultural A via tion A ssociation; C hem ical Specialties; A m erican W ood P reserv ers Institute; . C hem ical M anufacturers A ssociation; P roduct L iability A dvisory C ouncil, Inc.; T rial L aw yers fo r P u b lic Justice, Am ici C uriae. No. 91-1085. United States Court of Appeals, Tenth Circuit. March 6, 1992. Landowner brought action against manufacturer and distributor of pentachlorophenol to recover for failure to warn of . rt potential environmental risks or hazards to w property resulting from use of the chemical. The United States District Court for the District of Colorado, 748 F.Supp. 1474, ' Daniel B. Sparr, J., denied defendants' summary judgment motion, and they appealed. The Court of Appeals, John P. Moore, Circuit Judge, held that Federal Insecticide, Fungicide, and Rodenticide Act preempted state tort actions based on labeling and alleged-failure to warn. - `.Reversed and remanded. 3. States =18.5 , Even when field is not occupied, prfr emption may be inferred to extent state and federal law conflict. ---- ------- -- 4. Agriculture =9.13 States =18.65 Federal Insecticide, Fungicide, and Ro denticide Act impliedly preempted state tort actions based on labeling and alleged failure to warn; Congress intended to occu py field of pesticide labeling regulation, and awards of damages would result in direct conflict with federal law. Federal Insecticide, Fungicide, and Rodenticide Act, 3(c)(5)(B, D), 24, 24(b), as amended, 7 U.S.C.A. 136a(c)(5)(B, D), 136v, 136v(b). Richard R. Young (Brent E. Rychener and Walter H. Sargent, with him on the briefs) of Holme Roberts & Owen, Colora do Springs, Colo., for plaintiff-appellee. David A. Bailey (Dean R. Massey and Anne D. Weber, with him on the briefs) of Parcel, Mauro, Hultin & Spaanstra, P.C., Denver, Colo., for defendant-appellant, Van Waters & Rogers, Inc. C. Michael Montgomery (Peter S. Dusbabek, Montgomery, Green, Jarvis, Kolodny & Markusson, Denver, Colo., and Edward ARKANSAS-PLATTE & GULF v. VAN WATERS & ROGERS 159 Cite u 5 F-2d 158 (10th Clr. 1992) B. Fitzpatrick, III, The Dow Chemical Co., nation of the litigation. 28 U.S.C. Midland, Michigan, with him on the briefB), 1292(b). We review motions for sum- of Montgomery, Green, Jarvis, Kolodny & mary judgment de novo. City of Chanute, Markusson, Denver, Colo., for defendants Kan. v. Williams Natural Gas Co., 955 appellant, The Dow Chemical Co. F.2d 641, 647 (10th Cir.1992). . See also Lawrence S. Ebner, McKenna & Cuneo, Bamson v. United States, 816 F.2d 549, Washington, D.C., Charles S. Siegel, Baron 552 (10th Cir.), cert, denied, 484 U.S. 896, & Budd, P.C., Dallas, Tex., and Arthur H. 108 S.Ct. 229, 98 L.Ed.2d 188 (1987). If no Bryant and Priscilla Budeiri, Trial Lawyers genuine issue of material fact exists,.we for Public Justice, Washington, D.C., on determine if the substantive law was cor the briefs, for amici curiae. rectly applied. Applied Genetics Inti, " Before LOGAN and MOORE, Circuit Judges, and ALLEY, District Judge.* Inc. v. first Affiliated Sec., Inc., 912 F.2d 1238,1241 (10th Cir.1990), citing Osgood v. State Farm Mut Auto. Ins. Co., 848 F.2d JOHN P. MOORE, Circuit Judge. 141, 143 (10th Cir.1988). There is no dis In 1985 plaintiff Arkansas-Platte & Gulf pute of fact on the preemption issue before (AP & G) succeeded to ownership of prop us. The parties disagree about (1) what erty in Colorado which previously had been body of FIFRA law should be applied, and occupied by a wooden fence-post treatment (2) whether state law is preempted.' We facility. That facility used a pentachloro- reverse the denial of summary judgment to phenol product, "Dowicide 7," from approx the defendants, and hold FIFRA impliedly imately 1960 to 1972. In 1987, an AP & G preempts state tort actions based on label employee was diagnosed with pentachloro- ing and alleged failure to warn. ' phenol poisoning. AP & G filed suit in 1989 against Van Waters & Rogers and The Dow Chemical Company as pentachlo- 1. APPLICABLE LAW . .. rophenol manufacturers or distributors, as serting Colorado state tort claims of negli gence and strict liability based on a failure to warn of the product's environmental hazards. Dow and Van Waters & Rogers moved for summary judgment, asserting the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136 (FIFRA), preempts state common law tort claims based on labeling. The district court de [1] AP & G argues its claims originate from actions occurring from 1960 to 1972, and thus FIFRA provisions enacted in 1972 cannot affect defendants' pre-exposure duties. In the alternative, AP & G asserts neither the 1947 Act nor the 1972 amend ments preempt state common law failure to warn claims, and the distinction is unimpor tant We disagree with both arguments. nied summary judgment, holding there was While pre-1972 FIFRA law concerning no express or implied preemption by FI labeling is similar to the legal regime set FRA of state tort claims based on negli forth in the 1972 amendments, it is not gent failure to warn. Arkansas Platte & identical. FIFRA was enacted in 1947 as a Gulf Partnership v. Van Waters & Rog licensing and labeling statute replacing the ers, Inc., 748 F.Supp. 1474, 1482, 1484 Insecticide Act of 1910. Ruckelshaus v. (D.Colo.1990). Monsanto Co., 467 U.S. 986, 991, 104 S.Ct On motion of the defendants, the district 2862, 2866, 81 L.Ed.2d 815 (1984). The court certified this question for interlocu 1947 Act gave the Agriculture Department tory appeal. We may take interlocutory authority to regulate, register, and label appeals when there is a substantial ques "economic poisons and devices." Kennan tion of law and an immediate appeal will v. Dow Chem. Co., 717 F.Supp. 799, 804 materially advance the ultimate termi- (M.D.Fla.1989). There was no provision in *The Honorable W ayne E. Alley, United States District Court Judge for the Western District o f 959 F.2d-- 6 Oklahoma, sitting by designation. 160 959 FEDERAL REPORTER, 2d SERIES the 1947 Act, however, specifically restrict registering pesticides for uses to meet spe ing state authority over pesticide labels. cial local needs. Clearly if the 1947 Act did In contrast, the 1972 amendments signifi-' not specifically restrict state authority over cantly strengthened the Act's registration labeling, the 1972 amendments instruct a and labeling standards, constructing a com different interpretation of the preemption prehensive regulatory regime. Wisconsin of state law. Pub. Intervenor v. Mortier, --- U.S.-----, Like the district court, we find plaintiffs 111 S.Ct 2476, 2480, 115 L.Ed.2d 532 contention that we should apply pre-1972 (1991), citing Ruckelskaus, 467 U.S. at 991, FIFRA law unavailing.1AP & G relies on 104 S.Ct. at 2867. The 1972 provisions DeVargas v. Mason & Hanger-Silas Ma sought to "regulate the use of pesticides to son Co., 911 F.2d 1377. (10th Cir.1990), cert. protect man and his environment," and "ex denied, -- U.S. -----, 111 S.Ct. 799`, 112 tend Federal pesticide regulations to ac L.Ed.2d 860 (1991), arguing the application tions entirely within a single State." of current FIFRA law to past events would Kennan, 717 F.Supp. at 804, citing S.Rep. present a question of retroactivity. De- No. 92-838, 92d Cong., 2d Sess., reprinted Vargas addressed the retroactive applica in 1972 U.S.Code Cong. & Ad.News 3993. tion of statutory amendments which be Section 136v, addressing the "authority of came effective during the pendency of that states" provides: litigation. The court held in the absence of (a) In general clear congressional intent instructing retro A State may regulate the sale or use active application, the law should be ap of any federally registered pesticide ... plied prospectively. DeVargas, 911 F.2d at in the State, but only i f and. to the 1388, 1393." . .. . 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 subchap ter. If this case presented a question of retro spective application of a statute, we would indeed apply DeVargas. The issue here, however, does not concern retroactivity, but rather when plaintiffs cause of action arose. Our examination of the claim leads us to conclude it arose after 1972. AP & G acquired its property in 1985, found the property contaminated in 1987, and filed 7 U.S.C. 136v(a), (b) (emphasis added). suit in 1989. Even were we to assume A plain reading of the statute indicates plaintiff's cause of action ripened prior to an intent to maintain the traditional police 1972, we have said it is "fundamental" that powers of the states in the general grant of "a statute is not rendered retroactive mere authority to "regulate the sale or use" of ly because the facts or requisites upon pesticides, $ 136v(a), and a more specific which its subsequent action depends are intent to occupy the field in labeling and drawn from a time antecedent to the enact packaging, 136v(b). Section 136v(c) fur ment." Lohf v. Casey, 466 F.2d 618, 620 ther examines the states' prerogatives for (10th Cir.1972), citing Cox v. Hart, 260 U.S. D eV argas found two lines o f Suprem e Court o t d ' precedent, B ra d ley v. S c h o o l B d o f C ity o f R ic h - 3 0 m o n d , 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), and B o w en v. G eorgetow n Univ. H asp., 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988), were in "irreconcilable conflict" in applying statutes whose intent on retroactivity is unclear. D eV argas, 911 F.2d at 1390. B ra d O ley held when congressional intent is unclear, f " 'a court is to apply the law in effect at the time it renders its decision/" except where applica tion of the law would result in "manifest injus c A l tice." D eVargas, 911 F.2d at 1388-389, citing B radley, 416 U.S. at 711, 94 S.Ct. at 2016. D e Vargas found B o w e n stated a contrary rule, that "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." D eV argas, 911 F.2d at 1389, citing B o w e n , 109 S.Ct. at 471. "Faced squarely with the issue [of] . . . w hich presumption--B ra d le y or B o w e n --is to govern," the D eVargas court found B ow en w as supported by the weight of Supreme Court authority, and held the Civil Rights Restoration Act o f 1987 did not apply retroactively. D eV ar gas, 911 F.2d at 1392-93. ARKANSAS-PLATTE & GULF v. VAN WATERS & ROGERS lb l Cite u 939 F-2d 1 (lO thCir. 1992) 427, 43 S.Ct 154, 67 L.Ed. 332 (1922). De- extent state and federal law conflict This `Yargas is therefore not on point. may be when "compliance with both feder ./ Furthermore, any jury award on claims al and state regulations is a physical impos arising from a duty to label or warn has an sibility," Florida Lime & Avocado Grow impact on FIFRA as it presently exists. ers, Inc. v. Paul, 373 U.S. 132, 142-143,' 83 As the court stated in Kennan v. Dow S.Ct .1210, 1217-18, 10 L.Ed.2d 248. (1963), Chem. Co., "[wjhether or not the decedent when federal law implies a barrier to state was exposed prior to 1972 does not negate regulation, Louisiana Pub. Serv. Comm'n the fact that a jury award today would v. FCC, 476 U.S. 355, 368, 106 S.Ct 1890, 'constitute regulation by causing manufac 1898, 90 L.Ed.2d 369 (1986), citing Shaw v. turers to change their labels.... Con Delta Air Lines, Inc., 463 U.S. 85,'103 gress has expressly preempted such regu S.Ct. 2890, 77 L.Ed.2d 490 (1983), or when lation by the states." 717 F.Supp. at 81L` state law "stands as an obstacle, to the We therefore apply FIFRA as amended. accomplishment and execution of the full purposes and objectives of Congress." L:V: II. PREEMPTION DOCTRINE Hines v. Davidowitz, 312 U.S. 52, 67, 61 A,j-[2] The preemption doctrine is based on S.Ct. 399, 404, 85 L.Ed. 581 (1941). the Supremacy Clause of Article Six of the Constitution. U.S. Const, art. VI, cl. 2. The Supremacy Clause invalidates .state III. FAILURE TO WARN CLAIMS .... . BASED ON LABELING laws that "interfere with, or are contrary [4] Several courts have considered to" federal law. Hillsborough County, whether FIFRA preempts state tort claims Fla. v. Automated Medical Labs., Inc., 471 based on labeling and alleged failure to U.S. 707, 712, 105 S.Ct. 2371, 2375, 85 warn with conflicting results. The Elev LEd.2d 714 (1985), citing.Gibbons v. Og enth Circuit held state common law tort den, 22 U.S. (9 Wheat) 1, 211, 6 L.Ed. .23 labeling claims are impliedly preempted by (1824) (Marshall, C.J.). The burden of FIFRA, 7 U.S.C. 136v(b). Papas v. Up proving preemption is on defendants,'who john Co., 926 F.2d 1019, 1024 (11th Cir. must show Congress meant FIFRA to 1991), petition for cert filed, 59 U.S.L.W. preempt state tort claims based on failure 3825 (U.S. May 29, 1991) (No. 90-1837.)1 to warn. While FIFRA explicitly instructs states can 13] Preemption turns on the intent of Congress and on the effect of the conflict ing rule. Intent may be express, Jones v. Rath, Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977), or inferred when Congress has chosen to oc cupy a particular field and "a scheme of federal regulation is 'so pervasive as to make reasonable the inference that Con regulate the sale or use of federally reg istered pesticides, 136v(b) precludes "any requirements for labeling or packaging in addition to or different from those required pursuant to this act." Id. (emphasis add ed). The Papas court reasoned jury awards of damages in these actions would result in direct conflict with federal law. Id. at 1025. We agree. gress left no room for the States to supple The Administrator of the EPA is charged ment it.'" Wisconsin Pub. Intervenor v. under the statute with determining wheth Mortier, 111 S.Ct. at 2481, citing Rice v. er the pesticide "when used in accordance Santa Fe Elevator Corp., 331 U.S. 218, with widespread and commonly recognized 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 practice ... will not generally cause unrea i (1947). Even when the field is not occu sonable adverse effects on the environ pied, we may still infer preemption to the ment." 7 U.S.C. 136a(c)(5)(D). The EPA C om pare K e n n a n v. D o w C h em . Co., 717 1 F-Supp. at go 7 ("FIFRA expressly preempts state .Flaw regulation o f pesticide la b e lin g ...."); a n d - Fitzgerald v. M a llin ck ro d i, Inc., 681 F.Supp. 404, 406 (E.D.Mich.1987) ("Congress has expressly staled its intent to preempt any state labeling or packaging requirements different from or addi tional to those mandated by FIFRA," citing 136v(b)). 162 959 FEDERAL REPORTER, 2d SERIES considers these adverse effects in deter authority over labeling.4 Section 136v(b) mining what labels comply with FIFRA's clearly narrows the gnral grant of requirements. 7 U.S.C. 136a(c)(5)(B). 136v(a) to exclude "requirements for la The labels " `must be adequate to protect beling or packaging." the public from fraud and from personal injury and to prevent unreasonable adverse effects on the environment'" Papas, 926 F.2d ' at 1024, citing 40 C.F.R. 156.10(i)(lXi). , State court damage awards based on fail ure, to warn would constitute ad hoc determinations of the adequacy of statutory la beling standards. This would hinder the accomplishment of the full purpose of 136v(b), which is to ensure uniform label ing standards. Papas noted even if a state, tort action accomplished the same goal as the federal statutory provisions, federal law would still preempt the state action because "it attempts to achieve that pur pose by a method which interferes with the federal methods." 926 F.2d at 1026, citing International Paper Co. v. Ouellette, 479 U.S. 481, 497,107 S.Ct. 805, 813, 93 L.Ed.2d 883 (1987).................. .. We decline to follow the D.C. Circuit's holding in Ferebee v. Chevron Chem. Co., 736 F.2d 1529 (D.C.Cir.1984), cert, denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984), as suggested by AP & G. Ferebee involved a suit by the estate of an agri cultural worker against Chevron alleging Chevron's failure to label paraquat with an adequate warning caused Mr. Ferebee's lung disease and subsequent death. The D.C. Circuit held the tort action was not preempted by FIFRA, basing its holding on the general grant of authority to the states in 136v(a) to regulate the use of FIFRAcontrolled products within state borders. Ferebee, 736 F.2d at 1541. We do not agree with the D.C. Circuit that because Ferebee distinguished between the "di rect" injunction against the states' impos ing labeling requirements and require ments which might be imposed through state common law. Id. The court rea soned the EPA's determination that Chev ron's label was adequate "for FIFRA pur poses does not compel a jury to find that the label is also adequate for purposes of state tort law ...." Ferebee, 736 F.2d at 1540 (emphasis in Ferebee ). Ferebee fur ther stated: The verdict itself does not1command Chevron to alter its label--the verdict merely tells Chevron that, if it chooses to continue selling paraquat in Maryland, it may have to compensate for some of the resulting injuries. That may in some sense impose a burden on the sale of paraquat in Maryland, but it is not equiv alent to a direct regulatory command ' that Chevron change its label__ Ferebee, 736 F.2d at 1541.4 We do not accept this "choice of reac tion" analysis. A business choice between paying damages and changing the label is only notional. As the First Circuit stated in Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir.1987): Once a jury has found a label inadequate under state law, and the manufacturer liable for damages for negligently em ploying it, it is unthinkable that any man ufacturer would not immediately take steps to minimize its exposure to contin ued liability. The most obvious change it can take ... is to change its label. labeling can be part of the compensatory Id. at 627-28. This choice cannot be con objectives of the state in regulating use, sistent with FIFRA's preclusion of "any the general grant of 136v(a) encompasses requirements for labeling or packaging in 3. "Given this provision [ 136v(a)], Maryland might well have the power to ban paraquat entirely___ As a result, Maryland is entitled to control the use of paraquat for compensatory aim s by holding Chevron liable for injuries that could have been prevented by a more adequate label." Ferebee, 736 F.2d at 1541. 4. See also Ferebee, 736 F.2d at 1542 ("Compli ance with both federal and state law cannot be said to be impossible: Chevron can continue to use the EPA-approved label and can at the same time pay damages to successful tort plaintiffs such as Mr. Ferebee; alternatively, Chevron can petition the EPA to allow the label to be made more comprehensive.")- ARKANSAS-PLATTE & GULF, y. VAN WATERS & ROGERS Cite as 959 P-U t$8 (10th Cir. 1*92) addition to or different from" the statutory S.Ct at 2482. The Court found FIFRA had mandate. 7 U.S.C. 136v(b). . not occupied the field of pesticide regula AP & G relis on Silkwood v. Kerr- tion!in general or of local use permitting in McGee Corp., 464 U.S. 238, 104 S.Ct 615,' particular. Id. at 2486. According to Mor 78 L.Ed.2d 443 (1984), which stated there tier, the specific grant of authority in was no "irreconcilable conflict between the; 136v(a) ensures the states can "continue federal and state standards," and that the to regulate use and sales even where, such "imposition of a state standard in a dam as' with regard to the banning of misla ages action" would not "frustrate the ob beled products, a narrow pre-emptive ov jectives of the federal law." 464 U.S. at erlap might occur." Id. (emphasis added). 256, 104 S.Ct at 626. We distinguish Silk- This "narrow preemptive overlap" is pre wood because it construes the Atomic En-;, cisely the issue before ,us. In dicta ad ergy Act of 1954, 42 U.S.C. 2011-2296, a dressing FIFRA's-preemption of labeling statute with substantially different regula claims, the Court stated: tory and safety goals from FIFRA. The Atomic Energy Act contains no preemption provision and reserves significant authority to the states. "Further, the enactment and legislative history [of the Act] make clear Congress' explicit judgment that state com mon law damage actions for injuries caused by nuclear operations should be per mitted to continue." Palmer v. Liggett Group, 825 F.2d at 628. In contrast, FIFRA does specify restrictions on state au thority in labeling, and the legislative histo ry of FIFRA is not clear on the question of state common law tort actions based on [FJield pre-emption cannot be inferred. 'In the first place, I36v itself undercuts such an inference. The provision imme diately following the statute's grant of regulatory authority to the States de clares that "[s]uch State shall not impose or continue in effect any requirements for labeling and packaging in addition to or different from those required under" FIFRA. 7 U.S.C. 136v(b). This lan guage would be pure surplusage i f Con gress had intended to occupy the entire - field of pesticide regulation. labeling and failure to warn. Id. I ll S.Ct. at 2486 (emphasis added).5 Our thinking is bolstered by the Supreme Court's recent decision in Wisconsin Pub. Intervenor v. Mortier, -- U.S.-----, 111 S.Ct 2476, 115 L.Ed.2d 532 (1991). In Mor tier, a Wisconsin town granted plaintiff a permit for pesticide spraying with certain use restrictions. Plaintiff claimed the town ordinance was preempted by FIFRA and state statute. The Supreme Court disa greed, holding FIFRA did not preempt po litical subdivisions from regulating the use of pesticides, "either explicitly, implicitly, or by virtue of an actual conflict" Id. I ll Thus, the Supreme Court reasoned Con gress had not occupied the entire field of pesticide regulation, instead leaving intact the states' historic police powers to consid er regional and local factors in regulating use. The Court indicated) however, Con gress had impliedly preempted state regu lation in the more narrow area of labeling. While the holding of Mortier is confined to the regulation of pesticides by local govern ments, id. I ll S.Ct. at 2479, we are never theless inclined to adopt its construction of FIFRA.6 S. S ee also 111 S.Ct. at 2487. "As w e have . . . made plain, local use permit regulations-- u n lik e :: labeling o r c e rtific a tio n --do not fall within an area that FIFRA's `program' pre-empts or even plainly addresses." (em phasis added). S. Several district courts have considered pre/ emption with respect to labeling and failure to < warn claims since M o rtier and followed its dict.la - See; e .g , Y o u n g v. A m e r ic a n C y a n a m id Co., 786 F.Supp. 781 (E.D.Ark.N.D.1991); W o rm v. A m e rica n C y a n a m id Co., Civ. A. No. H A R -90- 1424, 1991 WL 144328 (D.Md. July 12, 1991) (unpublished opinion). Cf. M o n ta n a Pole & T re a tin g P la n t v. IF . L a u c k s, 775 F.Supp. 1339 . (D.Mont.1991) (adopting Ferebee and declining to follow Papas in case involving labeling of pentachlorophenol). In our opinion, M ontana Pole wrongly relies on M ortier without consider ing the Court's distinction betw een preemption of state regulation of the sale a n d use of pesti cides, and state authority over labeling M on ta n a Pole, 775 F.Supp. at 1344. 164 959 FEDERAL REPORTER, 2d SERIES IV. SUMMARY Utah, J.:Thomas Greene, J., of conspiracy We therefore hold state tort actions based on labeling and alleged failure to warn are impliedly preempted by FIFRA as' a matter of law. This is by virtue of the direct conflict posed with federal uniform to distribute cocaine, and he appealed. The Court of Appeals, Seymour, Circuit Judge, held that admission of alleged coconspira- tors' hearsay statements was reversible er ror. ; ..............; ; . regulation of pesticides, and because we -L; Reversed and remanded. ' : '* -' believe Congress intended to occupy the field of pesticide labeling regulation. We base our holding on the language of 1. Criminal Law <=427(2, 5) 136v, our rejection of the Ferebee court's "choice of reaction" analysis, and our understanding of the Supreme Court's con struction of FIFRA in Mortier. We need not reach the district court's holding there is no express FIFRA preemption, and em phasize our holding only concerns the nar row issue of labeling. We do not address other state tort claims by AP & G which may be pending against the defendants.7 In order for coconspirator's ' hearsay statement to be admissible, court must find on record by preponderance of :evidence that conspiracy existed, that declarant and particular defendant were members of con spiracy, and that statement was made dur ing course of and in furtherance of conspir acy; Fed.Rules Evid.Rule 801(d)(2)(E), 28 U.S.C.A. We therefore REVERSE the decision of 2. Criminal Law =>427(3) .< the district court denying defendants' sum Although court should ordinarily make mary judgment on plaintiff's state tort requisite findings for admission of cocon claims based on labeling and failure to spirator's hearsay statement prior to ad warn, and REMAND for further proceed mission of statement, court has discretion ings. to deviate from preferred order of proof. Fed.Rules Evid.Rule 801(d)(2XE), 28 U.S.C.A. UNITED STATES of America, Plaintiff-Appellee, v. Oscar J. PEREZ, Defendanb-Appellant No. 90-4149. United States Court of Appeals, Tenth Circuit March 17, 1992. Defendant was convicted in the United States District Court for the District of 3. Criminal Law =>427(2), 428, 1168(2) Admission of alleged coconspirators' hearsay statements was reversible error in drug prosecution where court failed to make findings on record that statements were made by coconspirators or that state ments were made during and in further ance of conspiracy. Fed.Rules Evid.Rule 801(d)(2)(E), 28 U.S.C.A. 4. Conspiracy =28(3) To prove drug distribution conspiracy, Government must establish that conspiracy existed, defendant knew essential objec tives of conspiracy, and defendant know ingly and voluntarily became part of it Comprehensive Drug Abuse Prevention and Control Act of 1970, 401(a)(1), 406, 21 U.S.C.A. 841(a)(1), 846. 7. See, c.g., K en n a n , 717 F.Supp. at 812 (w hile finding express preemption of failure to warn claims in 136v(b), court "state[d] no view as to whether . . . defense of unavoidable danger ousness ha(d) been preempted"); F isher v. C hev- ro n C hem . Co., 7 1 6 F.Supp. 1283, 1289 (W.D.Mo. 1989) (FIFRA preempts com m on law failure to warn claims, but not claims that herbicide sold in unreasonably dangerous condition). U.S.'v. PEREZ ... >5 Cite * 959 FJd 164 (10th Clr. 1992) 5. Conspiracy =47(12) , Wayne T. Dance, Asst. U.S. Atty. (Dee i; Drug distribution conspiracy conviction Benson, U.S. Atty., with him on the brief), was supported by evidence, even if not all Salt Lake City, Utah, for plaintiff-appellee. alleged conspirators were aware of each other or of all details of venture, where all alleged coconspirators took actions which Before SEYMOUR and MOORE, Circuit Judges, and SPARR,* District Judge. facilitated venture as a whole. ; SEYMOUR, Circuit Judge. 6. Drugs and Narcotics =123(2) Oscar Perez was convicted after a jury Conviction for possession of cocaine trial of conspiring to distribute five or more with intent to distribute was supported by. kilos of cocaine, in violation of 21 U.S.C. evidence that defendant purchased one of. 846, 841(a)(1) (1988), and of possessing ten kilogram packages from undercover more than 600 grams of cocaine with intent agents, though Government failed to estab to distribute, in violation of 21 U.S.C. lish which of the ten was actually pur 841(a)(1),. 18 U.S.C. 2 (1988). On ap-: chased, where there was evidence that all peal, Perez contends that: the court com ten packages used in transaction contained mitted reversible error in admitting the cocaine. hearsay statements of alleged co-conspira- tors; the evidence was insufficient to sup 7. Criminal Law =37(2) port his conviction for either conspiracy or ; J' "Entrapment" is established upon', possession with intent to distribute; he was showing that government agents have in entrapped as a matter of law; and his right; duced defendant to commit crime, and that to due process was violated by the govern defendant was not otherwise predisposed ment's outrageous conduct We agree that to perpetrate offense. the admission of the hearsay statements. - -. See publication W ords and Phrases requires reversal. for other judicial constructions and definitions. L ' 8. Criminal Law =739.1(2) FACTUAL BACKGROUND Issue of whether drug possession de fendant was entrapped was for jury; though defendant claimed he had been coerced into participation, there was evi-; . dence that he had voluntarily participated in several prior drug transactions. The facts underlying the convictions, viewed in the light most favorable to the government, are briefly as follows. The events at issue involve an Organized Crime Drug Enforcement Task`Force, made up of officers from several different federal and 9. Constitutional Law =257.5 local agencies, operating in the Salt Lake- Criminal Law =37(8) . Government's conduct in setting up drug sale to suspected dealer was not so outrageous as to violate dealer's due process rights; there was evidence that defendant was willing buyer who desired to purchase in amounts that would place him in upper echelon of drug dealers. U.S.C.A. City area. As a result of investigations unrelated to the Perez prosecution, in the summer of 1989 the task force interviewed an informant named Paul Alfonso, who mentioned Perez in connection with illegal drug activity.. Following this interview, the task force decided to initiate an investi gation targeting Perez. ..s ConstAmends. 5, 14. At some point before this investigation began, Perez had loaned $10,000 to Robert Pederson, an alleged co-conspirator, to en David L. Grindstaff, Salt Lake City, able Pederson to buy auto parts for resale Utah, for defendant-appellant in an attempt to save Pederson's failing. ` The Honorable Daniel B. Sparr, United States District Judge for the District o f Colorado, sit- ting by designation. 12-8-92 T h e U n ite d S ta te s LAW WEEK 61 LW 2347 your state's sales tax and shipping charges of $3.00 first book, $1.00 each additional book). Telephone orders call 1-800-3721033. Fax orders 1-800-253-0332. Courts and Procedure Pendent Party Jurisdiction. A statute that was enacted to deal with the murky question of pendent party jurisdiction, 28 USC 1367, fits a situation that its propo nents may not have anticipated: It permits the inclusion of pendent party plaintiffs, not just defendants, according to the U.S. Dis trict Court for the Central District of Cali fornia. In this case, the statute provides a jurisdictional basis for including persons with claims only under state law in a class action under Title VII of the 1964 Civil Rights Act, thus benefiting employees whose claims are untimely under Title VII but timely under state law. The 1990 stat ute gives federal district courts supplemen tal jurisdiction over claims that are closely enough related to the main claims to form part of the same case or controversy. This statute was primarily intended to allow plaintiffs with a federal claim to bring a related state claim against additional defen dants over whom a federal court would not ordinarily have jurisdiction, but the court said the statutory language is broad enough to permit the inclusion of pendent party plaintiffs. Guzman v. Oxnard Lemon Asso ciates Ltd.. DC CCalif, No. CV 91-6957 Kn (Ex), 8/28/92. 60 Fair Employment Practice Cases 436. Criminal Law and Procedure Cordless Telephone Interceptions. Even as it held that the Fourth Amendment was not violated when a defendant's neighbor intercepted incriminating conversations the defendant conducted over a cordless tele phone, the U.S. Court of Appeals for the Fifth Circuit observed Nov. 12 that under some circumstances a reasonable expecta tion of privacy may attach to cordless tele phone calls. The appropriate inquiry is whether an individual has manifested a sub jective expectation of privacy in such calls that society is prepared to regard as reason able. Evolving technology and increased use of cordless telephones leave open the strong possibility that a court may, at some point, properly find an individual's expectation of privacy when using these devices to be rea sonable, it said. U.S. v. Smith, CA 5, No. 91-5077, 11/12/92. 52 Criminal Law Re porter 1164. Death Penalty. A federal death penalty cannot be fashioned from 18 USC n i l 's statement that first-degree murderers "shall suffer death," and a witness protection law providing that the penalty for killing a wit ness is contained in Section 1111, the U.S. District Court for the Eastern District of Pennsylvania decided Nov. 5. After noting a host of formidable Eighth Amendment problems, the court found no evidence that Congress intended the killing of a witness to be a capital offense. Accordingly, the court told federal prosecutors that they may not seek the death penalty for a lawyer who allegedly killed a woman to prevent her from testifying against him before a federal grand jury. U.S. v. Burke, DC EPa, No. 9200268-01, 11/5/92. 52 CrL 1172. Sentencing. The Fifth Amendment's Due Process Clause permits drug amounts that are used to arrive at a sentence for a drug conspiracy defendant under the federal Sen tencing Guidelines to be proved by a pre ponderance of the evidence, the U.S. Court of Appeals for the Ninth Circuit held re cently. This is true even when the determi nation of these amounts results in a steep increase in the defendant's sentence, the court said. It rejected the defendant's argu ments for a "clear and convincing" evidence standard of proof in this situation. U.S. v. Harrison-Philpot, CA 9, No. 89-30212, 10/28/92. 52 CrL 1174. Probation. A convicted sex offender's fed eral and state due process rights were not violated when he was sentenced to prison after the county refused to pay for inpatient treatment ordered as a condition of his pro bation, the Minnesota Court of Appeals held Nov. 17. Bearden v. Georgia, 461 U.S. 660 (1983), which held that deprivation of a probationer's liberty simply because he can not pay a fine is fundamentally unfair, is no help to the defendant, the state court said, in view of the trial court's clearly expressed belief that imprisonment was inappropriate for this defendant only if sex offender treat ment could be obtained. This is not a case in which the defendant was sentenced to pris on merely because he could not pay a fine, the court said, and the defendant has no right to county-funded sex offender treat ment outside of prison. Minnesota v. Mor row, Minn CtApp, No. C7-92-1295, 11/17/92. 52 CrL 1185. Employment Discrimination Wrongful Discharge. A wrongful dis charge action may be brought against an employer that is too small to be covered by either Title VII of the 1964 Civil Rights Act or the Maryland Fair Employment Practices Act, according to the U.S. District Court for the District of Maryland. Under Maryland law, a common law action can be brought for wrongful discharge in violation of a clear public policy if there is no other available remedy. The ruling permits an employee who was discharged allegedly be cause of her pregnancy to sue the employer, even though direct actions cannot be brought against employers with 15 or more employees because they are covered by the Maryland statutory scheme and its adminis trative procedures. Kerrigan v. Magnum Entertainment Inc., DC Md, No. L-911583, 8/31/92. 60 Fair Employment Prac tice Cases 290. Emotional Injuries. The exclusive rem edy provision of the Kentucky workers' compensation statute does not bar a damage claim under the state civil rights statute for mental and emotional injury inflicted by sexually discriminatory practices, the Ken tucky Supreme Court made clear Oct. 22. Relying on a Michigan Supreme Court de cision that a workers' compensation statute bars only common law tort claims, not stat utory civil rights claims, the court said it will presume both that the legislature knew of the exclusive remedy provision when it created a private right of action for "actual damages" caused by discrimination, and that the legislature intended to create an independent cause of action even though the two statutes might provide alternative sources of statutory relief in cases in which emotional injury causes work-related occu pational disability. Meyers v. Chapman Printing Co., Ky SupCt, No. 92-SC-396TG, 10/22/92. 60 FEP Cases 336. Environment and Conservation FIFRA Pre-empiton. A host of federal district courts recently have addressed the question whether the Federal Insecticide, Fungicide, and Rodenticide Act pre-empts state tort actions against pesticide manufac turers for inadequate labeling. The U.S. District Court for the Eastern District of Washington held Nov. 2 that state tort claims are expressly pre-empted under the standards articulated in Cipollone v. Lig gett Group Inc., 60 LW 4703 (US SupCt 1992). The central inquiry required by Ci pollone, the court said, is whether the legal duty that is the predicate of the common law damages action constitutes a require ment for labeling or packaging that is either "in addition to" or "different from" those required by FIFRA." According to the court, the plaintiffs did not allege that the manufacturer's label violates Environmen tal Protection Agency-approved labeling re quirements. Instead, they argued that the label fails to provide a warning adequate to satisfy a more stringent duty of care arising under state common law. It follows, there fore, that the duty upon which the manufac turer's liability is predicated is a require ment which is "in addition to" those imposed by FIFRA, the court said. Casper v. E.I. du Pont de Nemours & Co., DC EWa, No. CS-9I-319-FVS, 11/2/92. 7 Toxics Law Reporter 785. The U.S. District Court for Eastern'Dis trict of Kentucky was of a similar mind when it held Oct. 19 that failure-to-warn claims that arose after Oct. 21, 1972, tfij; date FIFRA's pre-emption provision toSk effect, are expressly pre-empted by the stat ute. The court observed that in Cipollone the Supreme Court held that "where .Con gress has included in an act an express 0148-8139/92/S 0 + .50 . 61 LW 2348 T h e U n ite d S ta te s LAW WEEK 12-8-92 pre-emption provision, that provision is the sole basis for determining state authority and there is no need to divine Congressional intent regarding pre-emption from other provisions of the act." FIFRA, the court said, contains an express provision govern ing state authority in the area of labeling and packaging. Accordingly, there is no need to look beyond this provision in deter mining whether state tort actions based on the theory of failure to warn are pre-empt ed. Gibson v. Dow Chemical Co., DC EKy, No. 92-30, 10/19/92. 7 TXLR 786. Instead of finding express pre-emption, the U.S. District Court for the Southern District of Texas held Nov. 18 that FIFRA impliedly pre-empts any state law cause of action for negligence or strict liability stem ming from inadequate labeling of pesticides. The court said the statute's legislative histo ry indicates Congress intended to establish a comprehensive regulatory scheme over the labeling and warnings of pesticide products in an attempt to regulate and provide uni formity in the field. Burge v. Jones, DC STexas, No. 8-92-022, 11/18/92. But, disagreeing with its sister districts, the U.S. District Court for the District of Montana held Oct. 2 that FIFRA does not pre-empt a strict liability claim that seven herbicide manufacturers failed to adequate ly warn of health risks associated with their products. The court cited Cipollone and Burke v. Dow Chemical Inc., 61 LW 2073 (DCENY 1992). Both decisions found limited pre-emption after rejecting defense motions for greater supplantation of state law. The Cipollone court emphasized that when Congress enacts a provision which expressly defines the pre-emptive reach of a statute, it must be implied that matters beyond that reach are not pre-empted, the court said. It noted that FIFRA's pre-emp tion provision contains language "indistin guishable" from the Federal Cigarette La beling Act's pre-emption clause. Couture v. Dow Chemical U.S.A., DC Mont, No. CV-91-087-BU, 10/2/92. 7 TXLR 786. Family Law Child Support. College education costs are not a part of a parent's child support obligation, the Pennsylvania Supreme Court ruled Nov. 13. Repudiating nearly two dec ades of case law developed by the state superior court, the court declared that a parent's support duty ceases on the later of his or her child's 18th birthday or gradu ation from high school. The court explained that Pennsylvania's legislature, unlike those of some other states, has yet to burden parents with a statutory duty to support children over the age of majority while they attend college, and it refused to judicially impose such a duty. Blue v. Blue, Pa SupCt, No. 203 ED 1990, 11/13/92. 19 Family Law Reporter 1051. Child Support. An obligor's incarcer ation that renders him financially unable to pay child support does not excuse his re sponsibility to his children, the Iowa Court of Appeals ruled Oct. 27. Various jurisdic tions disgree on whether incarceration war rants modification of support. One week after the Iowa ruling, the Oregon Supreme Court reached the opposite conclusion; it reversed a ruling cited with approval by the Iowa court. In re Phillips, Iowa CtApp, No. 2-421/92-60, 10/27/92; In re Willis, Ore SupCt, No.S38753, 11/5/92. 19 FLR 1046. Labor On-Call Time. Physician assistants are entitled to overtime compensation under the Fair Labor Standards Act for time spent waiting for calls to provide emergency medi cal services to prison inmates, the Colorado Court of Appeals ruled Oct. 22. The assis tants could not use the on-call time effec tively for their own purposes, the court said, because they had to respond within 20 min utes to any of seven facilities within an eight-mile radius, and the number of calls received ranged from 10 to 12 per weekday shift and up to 24 on a weekend shift. The assistants testified that they could not show er, eat in restaurants, entertain guests, per form yard work, or attend sporting events during on-call hours. The state argued that the assistants had agreed to receive $1.75 per hour for time spent waiting for calls. But the court found the agreement in viola tion of public policy. Casserly v. Colorado, Colo CtApp, No. 90CA1460, 10/22/92. 1 Wage & Hour Cases2d 103. Prehire Agreements. The National Labor Relations Board's decision in John Deklewa & Sons, 282 NLRB 375 (1987), which made pre-hire agreements enforceable dur ing their terms, applies even when the oper ative facts arose before Deklewa was decid ed, the en banc U.S. Court of Appeals for the Tenth Circuit held Nov. 2. Deklewa represents "a defensible construction" of the National Labor Relations Act, the court said, and the "bare fact" that it represents a departure from prior case law, which held that either party could repudiate a pre-hire agreement at any time, does not condemn it. Retroactive application of Deklewa would not result in manifest injustice to parties who had relied on the old interpretation, the court said. NLRB v. Viola Industries, CA 10, No. 88-1837, 11/2/92. 141 Labor Relations Reference Manual 2729. Securities and Exchanges Definition o f Security. Plaintiff investors . failed to show that their general partnership interests in a horse breeding association were securities within the meaning of the federal securities laws, the U.S. Court of Appeals for the Ninth Circuit held Nov. 2, affirming the dismissal of securities fraud claims. The court applied the three-part test of Williamson v. Tucker, 645 F2d 404 (CA 5 1980), for determining whether a general partnership interest is a security. The court said that the investors "retained significant legal power and control over partnership matters" under the terms of the partnership agreement and the manager's employment agreement; that the investors were experienced in business affairs gener ally, even though they lacked horsebreeding expertise; and that the investors failed to show that they were dependent on the man ager's unique ability. The investors' allega tions that the manager was solely in charge and made all the pertinent decisions merely showed that they "chose to be passive and did not actively utilize the legal powers afforded them by the partnership arrange ment." Holden v. Hagopian, CA 9, No. 9015183, 11/2/92. 24 Securities Regulation & Law Report 1768. For customized research and copies of documents or court decisions referenced in this issue, call BNA PLUS toll-free (800) 452-7773 Nationwide; (202) 452-4323 in Washington, D.C. Cost estimates for services and additional informazion BNA PLUS services provided upon request. * v H f U.S. Law Week's Sections 1, 2 and 3 are available electronically through LEXIS and WESTLAW. For mere rntrormairon, call the BNA ONLINE Help Desk at (800) 862-4636 or (202) 452-4132 in Washington, D.C. 0148-8139/92/J0+.50 3 w B l a c k m a r v. G u e r r e , 342 U.S. 512, 514-15, 72 S.Ct. 410, 411-12, 96 L.Ed. 534 (1952). Congress has not authorized the Treasury Department or any of its divisions or bu reaus to be sued. H e n r y V l i e t s t r a P l a s t e r i n g & A c o u s t i c a l C o . v. I . R . S . , 401 F.Supp. 829, 832 (W.D.Mich.1975). Relief sought against agents Raby and Moore is actually relief sought against the United States. W a r n e r v. R e y n o l d s , 54 A.F.T.R. 2d 5698 (S.D.Ind.1984) [Available on WESTLAW, 1984 WL 3079], C. Richard O. FITZGERALD and Phyllis Fitzgerald, Plaintiffs, v. MALLINCKRODT, INC., a Delaware Corporation, Defendant. Civ. A. No. 86-2598. United States District Court, E.D. Michigan, S.D. Dec. 22, 1987. [31 The allegations of the complaint are not sufficient to state a claim for quashing the summonses. Plaintiffs must present specific facts from which the court could infer the possibility of wrongful conduct by the government. J u n g l e s v. U .S ., 634 F.Supp. 585, 586 (N.D.111. 1986). Plaintiffs first say that the yearly statements from each of the institutions were submitted to the IRS with their 1985 taxes. According to the government's motion, the IRS sum monsed a l l records for the 1985 tax year, not just a yearly statement. The IRS does not already have possession of the records requested. Greenskeeper who suffered mercury poisoning as result of his exposure to inor ganic mercury-based fungicide sued manu facturer for negligent labeling and failure to warn. On manufacturer's motion for summary judgment, the District Court, Suhrheinrich, J., held that; (1) manufactur er had not waived affirmative defense of preemption by failing to raise it until pre trial order, and (2) suit was preempted by Federal Insecticide, Fungicide, and Rodenticide Act. Motion granted. [4] Plaintiffs' second argument, that the records are of no interest to the IRS as they reflect plaintiffs' personal way of liv 1. Federal Civil Procedure =751 ing is also without merit. There is no right Affirmative defense is typically waived of "privacy" in summoned bank records. if not raised in defendant's responsive U n i t e d S t a t e s v. M ille r , 425 U.S. 435, 96 pleading, but will be preserved when raised S.Ct. 1619, 48 L.Ed.2d 71 (1976); M c T a g - in pretrial order. Fed.Rules Civ.Proc.Rule g a r t v. U .S ., 570 F.Supp. 547, 550 (E.D. 8(c), 28 U.S.C.A. Mich. 1983). Although the United States usually moves to enforce a summons when it is challenged, se e , e.g ., M o r r i s v. U n i t e d S t a t e s , 616 F.Supp. 246 (E.D.Mich.1985); M c T a g g a r t, 570 F.Supp. 547, it is entitled to pursue a dismissal of the petition and if successful, rely on third-party compliance with the summons. J u n g l e s , s u p r a . SO ORDERED. 2. Agriculture =9.13 States <=18.65 State tort claims against manufacturer of inorganic mercury-based fungicide based on negligent labeling and failure to warn were preempted by Federal Insecticide, Fungicide, and Rodenticide Act. Federal Insecticide, Fungicide, and Rodenticide Act, 2 et seq., as amended, 7 U.S.C.A. 136 et seq. Arnold M. Gordon, Southfield, Mich., for plaintiffs. FITZGERALD v. MALLINCKRODT, INC. C ite a* 681 F.Supp. 404 (E JJ.M Ich. 1987) 405 Ronald A. Glaser, Detroit, Mich., for de that had the warning labels been prepared fendant. differently he would not have been injured MEMORANDUM OPINION AND ORDER SUHRHEINRICH, District Judge. in the same manner. Defendant has moved for summary judg ment, claiming the Federal Insecticide, Fungicide and Rodenticide Act of 1982 (FI- This matter is before the Court on de FRA), 7 U.S.C. 136 e t se q ., preempts fendant's motion for summary judgment. plaintiffs' state common law cause of ac Pursuant to Local Rule 17(i )(2), the Court tion. Before reaching the merits of de shall decide this motion without oral argu fendant's motion, the Court must deter ment. mine whether defendant has waived its de This suit arises out of a toxic exposure to defendant's product, Calo-Clor, suffered by plaintiff. On November 20, 1984, Richard Fitzgerald was working as a greenskeeper at Salem Hills Golf Course, a position he held for eighteen years. On this date, fense of preemption by failing to raise it in the first responsive pleading.1 Defendant raised several affirmative defenses in its answer, including failure to state a claim upon which relief may be granted and ab sence of proximate cause. However, as plaintiff was preparing to spray Calo-Clor suming a r g u e n d o that preemption is an on the greens, tees, and fairways of the affirmative defense, defendant did not golf course. Plaintiff's supervisor instruct raise preemption until the pretrial order. ed plaintiff as to the type and amount In the Joint Pretrial Order dated November of chemicals to be used and plaintiff was 9, 1987, defendant clearly indicated its in responsible for mixing the proper quanti tention to assert federal preemption as a ties. While attempting to pour Calo-Clor defense. from a twenty-five pound drum onto a mea suring scale, plaintiff, wearing a snowmo [1] Typically an affirmative defense is bile suit, respirator, goggles, and rubber waived if not raised in defendant's respon gloves, spilled some of the chemical on his sive pleading. Fed.R.Civ.P. 8(c); S a t c h e l l clothes and created a large cloud of dust. v. D ilw o r th , 745 F.2d 781, 784 (2d Cir. Plaintiff then brushed off his clothes, 1984). However, when an issue is raised in washed his hands and face, and returned to a pretrial order, the affirmative defense work spraying the greens. Later that eve will be preserved. S e e , e.g., E x p e r t i s e , In c . ning, plaintiff began to feel sick. His wife v. A e t n a F i n a n c e C o., 810 F.2d 968, 973 took him to the hospital where it was deter (10th Cir.1987) (collecting cases); se e a ls o , mined that plaintiff suffered mercury poi J e n k i n s v. C a r r u t h , 583 F.Supp. 613, 615 soning due to his exposure to Calo-Clor. (E.D.Tenn.1982), a f f d w i t h o u t o p i n i o n , Calo-Clor is an inorganic mercury based fungicide manufactured by defendant for use in erradicating snow mold from golf course greens, tees, and fairways. In mix ing Calo-Clor, plaintiff removed the chemi 734 F.2d 14 (6th Cir. 1984) (finding statute of limitations defense not waiver when raised in pretrial order, but not in answer). Because defendant did raise the defense in the joint pretrial order, the Court finds that cal from a twenty-five pound drum. Af plaintiffs are not prejudiced by the failure fixed to this Calo-Clor drum was a warning to raise the defense in defendant's answer. label approved by the Environmental Pro Accordingly, the Court finds the affirm a tection Agency (EPA). Plaintiff admits tive defense of preemption is not waived knowledge of the warning label's existence and the Court shall consider the merits of but denies reading it. Plaintiff contends defendant's federal preemption defense. t. Plaintiffs m aintain, a n d defendant does not dispute, that preem ption constitutes an affirm a tive defense w hich m ust be raised in accordance with Fed.R.Civ.P. 8(c). W hile the C ourt is not convinced preem ption qualifies as an affirma- tive d efen se, a d e te r m in a tio n of th is issue is unnecessary; for the purposes of this motion, the C ourt shall assum e federal pre e m p tio n is an affirmative defense. 4< k 406 681 FEDERAL SUPPLEMENT In the seminal case of Gibbons v. Ogden, , critical question in any preemption analysis 22 U.S. (9 Wheat.) 1, 210-11, 6 L.Ed. 23 (1824), the Supreme Court ruled that the Supremacy Clause, U.S. Const. Art VI gives Congress authority to legislate in preemption of state law. is always whether Congress intended that federal regulation supersede state law." Id. at 382. As Judge Brown succinctly stated, "the gist of preemption is whether Congress (expressly) did or (impliedly) The Supremacy Clause of Art VI of the meant to displace state law or state law Constitution provides Congress with the power to pre-empt state law. Preemp tion occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, Jones v. Bath Packing Co. 430 US 519, 51 L Ed 2d 604, 97 S Ct 1305 (1977), when there is out right or actual conflict between federal and state law, e.g., Free v Bland, 369 US 663, 8 L Ed 2d 180, 82 S Ct 1089 (1962), where compliance with both federal and state law is in effect physically impossi ble, Florida Lime & Avocado Growers, concepts in enacting the federal law." Palmer v. Liggett Group, Inc., 825 F.2d 620, 625-26 (1st Cir.1987). Pursuant to FIFRA, Congress has enact ed a comprehensive system for the regis tration and labeling of pesticides. Both parties agree that the EPA under FIFRA regulates the sale and labeling of CaloClor. FIFRA directs the EPA to register a pesticide only if the EPA determines "it will perform its intended function without unreasonable adverse effects on the envi Inc. v Paul, 373 US 132, 10 L Ed 2d ronment." 7 U.S.C. 136a(c)(5)(C). When 1082, 83 S Ct 1210 (1963), where there is a pesticide is registered, the manufacturer implicit in federal law a barrier to state must submit its proposed label to the EPA regulation, Shaw v. Delta Air Lines, for approval; any changes in the label Inc. 463 US 85, 77 L Ed 2d 490, 103 S Ct must also be approved by the EPA. While 2890 (1983), where Congress has legislat typically divining whether Congress intend ed comprehensively, thus occupying an ed to preempt state law is a difficult, hap entire field of regulation and leaving.no hazard process, in the instant statute, Con room for the States to supplement feder gress has expressly stated its intent to al law, Rice v. Sante Fe Elevator Corp. preempt any state labeling or packaging 331 US 218, 91 L Ed 1447, 67 S Ct 1146 requirements different from or additional (1947), or where the state law stands as to those mandated by FIFRA. Section an obstacle to the accomplishment and 136v(b) provides; "Such state shall not im execution of the full objectives of Con pose or continue in effect any requirements gress. Hines v. Davidomtz, 312 US 52, for labeling or packaging in addition to or 85 L Ed 581, 61 S Ct 399 (1941). Pre different from those required under this emption may result hot only from action subchapter." taken by Congress itself;- a federal agen cy acting within the scope of its congres- [2] Although the language of the stat sionally delegated authority . may ute appears to clearly indicate Congression preempt state regulation. Fidelity Fed al intent to preempt state labeling regula eral Savings & Loan Assn. v. De la tions, one court has found to the contrary. Cuesta, 458 US 141, 73 L Ed 2d 664, 102 In Ferebee v. Chevron Chemical Co., 736 S Ct 3014 (1982); Capital Cities Cable, F.2d 1529 (D.C.Cir.1984), cert, denied, 469 Inc. v. Crisp, 467 US 691, 81 L Ed 2d U.S. 1062, 105 S.Ct 545, 83 L.Ed.2d 432 580, 104 S Ct 2694 (1984). (1985), the Court found that the federal Louisiana Public Service Commission v. statute was regulatory while Maryland tort Federal Communications Commission, remedies were compensatory. Even 176 U.S. 355, 368-69, 106 S.Ct 1890, 1898- though the Ferebee court recognized that 19, 90 L.Ed.2d 369, 381-82 (1986). . "FIFRA does not allow states directly to It is defendant's contention that FIFRA impose additional labeling requirements," ireempts state law and, therefore, the court allowed state tort remedies. Id. )reempts all state tort remedies. "The at 1541. The court reasoned: FITZGERALD v. MALLINCKRODT, INC. 407 e ile u 681 F-Supp. 404 (E.D-MIch- 1987) The verdict itself [compensating plaintiff for damages for negligently employing for injuries resulting from a defective it, it is unthinkable that any manufac label] does not command Chevron to al turer would not immediately take steps ter its label--the verdict merely tells to minimize its exposure to continued Chevron that, if it chooses to continue liability. The most obvious change it selling paraquat in Maryland, it may can take, of course, is to change its have to compensate for some of the re label. Effecting such a change in the sulting injuries. That may in some sense manufacturer's behavior and imposing impose a burden on the sale of paraquat such additional warning requirements is in Maryland, but it is not equivalent to a the very action preempted by 1334 of direct regulatory command that Chevron the Act. Indeed, it arrogates to a single change its label. . Chevron can comply jury the regulatory power explicitly de with both federal and state law by con nied to all fifty states' legislative bod tinuing to use the EPA-approved label ies. and by simultaneously paying damages to successful tort plaintiffs such as Mr. 825 F.2d at 627-28 (emphasis added). Ferebee. While the Court has carefully considered Id. the decision of the District of Columbia Circuit, this Court is not required to follow This reasoning was rejected in Palmer, a case involving cigarette warnings: the decision of another circuit United States v. Finazzo, 429 F.Supp. 803, 807 The preemption clause of the Act ex (E.D.Mich.1977); see also Colby v. J.C. pressly prohibits "state law" not merely Penney Co., Inc., 811 F.2d 1119, 1123-24 "statutory law" from imposing any "re (7th Cir.1987); Generali v. D'Amico, 766 quirement or prohibition" different from F.2d 485, 489 (11th Cir.1985). After care the Act's warning label. 15 U.S.C. ful consideration of the conflicting analyses 1334. I f a manufacturer's warning of Ferebee and Palmer, the Court finds the that complies vritk the Act is found inadequate under a state tort theory,. reasoning of Palmer persuasive. Where the federal government has preempted any . the damages awarded and verdict ren dered against it can be viewed as state: regulation: the decision effectively compels the manufacturer to alter its warning to conform to different state law requirements as "promulgated" by a ju ry's findings__ This challenge to the federal warning label's sufficiency-- and the confusion it would engender-- surely contravenes the Act's policy of uniform labeling. The District Court held that an award of damages "would h&ve only an indirect effect on defendant's labeling and adver tising practices." 633 F.Supp. at 1177. The Palmers disingenuously maintain. that any monetary damages awarded would not compel a manufacturer to change its label for, after all, "the choice of how to react is left to the manufactur er." This "choice of reaction" ' seems state regulation, there can be no recovery in tort Allowing recovery under state tort law where Congress has preempted state law would effectively authorize the state to do through the back door exactly what it cannot through the front FIFRA express ly provides that no state may impose "any requirement for labeling or packaging in addition to or different from those re quired under this Act" 7 U.S.C. 136v(b) (emphasis added). As the Palmer court noted, any state law tort recovery based on a failure to warn theory, would abrogate Congress' intent to provide uniform regula tions governing the labeling of pesticidesSee also Hurley v. Lederle Laboratories,'651 F.Supp. 993, 999-1000 (E.D.Tex.1986) (finding the Federal Pure Food, Drug and-1 Cosmetic Act's regulation of labeling1 preempts any state tort claims based on> akin to the free choice of coming up for improper warning). air after being underwater. 'Once a jury Thus where plaintiffs1claims all involve! has found a label inadequate under state law claims based on negligent label state law, and the manufacturer liable ing and failure to warn and where the1 Court has found state regulation in this area preempted by federal law, the Court shall grant defendant's motion for summa ry judgment. Accordingly, IT IS HEREBY ORDERED that defend ant's motion for summary judgment is GRANTED. FEDERAL DEPOSIT INSURANCE COR PORATION, in its corporate capacity, a corporate agency of the United States government. Plaintiff, v. Ruth DIXON, Defendant and Third-Party Plaintiff, v. SOUTHWESTERN DRILLING, an Okla homa general partnership. Southwest ern Drilling Management Company, an Oklahoma corporation, Southwestern Drilling Company, an Oklahoma corpo ration, Bill Schnes, John Yoeckel, and Roger Bernstein, Third-Party Defend ants. No. 86-CV-10196-BC. United States District Court, E.D. Michigan, N.D. protecting FDIC from unwritten agree ments that otherwise might be asserted to diminish or defeat its rights in assets ac quired from failed bank. Summary judgment granted. 1. Banks and B anking <S^>505 Misrepresentations allegedly made to limited partner by promoters of limited partnership were "agreements" for pur poses of Federal Deposit Insurance Act provision protecting FDIC from unwritten agreements that otherwise might be assert ed to diminish or defeat its rights in assets acquired from failed bank. Federal Depos it Insurance Act, 2[13](e), as amended, 12 U.S.C.A. 1823(e). See publication Words and Phrases for other judicial constructions and definitions. 2. Banks and B anking <$=505 FDIC had "right, title or interest" in assumption agreement signed by limited partner, binding limited partner to bank for ten percent of loan to limited partnership, for purposes of determining applicability of Federal Deposit Insurance Act provision protecting FDIC from unwritten agree ments that otherwise might be asserted to diminish or defeat its rights in assets ac quired from failed bank, notwithstanding alleged avoidability of assumption agree ment as result of fraud in inducement by promoters of limited partnership. Federal Deposit Insurance Act, 2[13](e), as amended, 12 U.S.C.A. 1823(e). Jan. 21, 1988. Federal Deposit Insurance Corpora tion, in its corporate capacity, brought ac tion against limited partner on assumption agreement binding limited partner to bank for ten percent of loan to limited partner ship. On motions for summary judgment, the District Court, Churchill, J., held that FDIC was protected from limited partner's claim that misrepresentations of promoters of limited partnership fraudulently induced her to bind herself to loan obligation by Federal Deposit Insurance Act provision 3. Banks and B anking =505 Assumption agreem ent signed by limit ed partner, binding limited partner to bank for ten percent of loan to limited partner ship, was "asset" of bank, subject to Feder al Deposit Insurance Act provision protect ing FDIC from unwritten agreements that otherwise might be asserted to diminish or defeat its rights in assets acquired from failed bank. Federal Deposit Insurance Act, 2[13](e), as amended, 12 U.S.C.A. 1823(e). See publication Words and Phrases for other judicial constructions and definitions. bell crank was defectively manufactured.7 Thus, the NTSB report, though its inadmis sible conclusion is arguably consistent with plaintiffs' theory, does not raise genuine issues of material fact with respect to the soundness of the bell crank. Finally, plaintiffs rely upon the affidavit testimony of an expert in mechanical engi neering, Boisjoly. In his affidavit, Boisjoly avers that he has examined (1) the NTSB brief report of the crash, (2) the statement of an eyewitness to the crash, (3) aircraft specifications of the helicopter, (4) Mr. Ger hard's deposition testimony, (5) a pertinent metallurgical report, and (6) " 12 NTSB Summary Briefs describing incidents in volving failures of the collective and pitch control mechanisms of similar Bell helicop ters." Boisjoly Affidavit, at H3(aHe). From this examination, Boisjoly concludes "that the crash * * * was caused by the in-flight failure of the bell crank ' * * when said bell crank was subjected to an expected in-flight maneuvering load." Id. at n 4. The amended pretrial schedule in this ease required plaintiffs to disclose all (xpert witnesses and serve answers to in terrogatories under Rule 26(b)(4)(A)(i) by November 1, 1990. The court amended the pretrial schedule a second time to extend the period for plaintiffs to disclose addition al metallurgie experts to January 20, 1991. Plaintiffs submitted the affidavit of Boisjo ly. a mechanical engineering expert, on March 7, 1991. Boisjoly fails to recount or explain the analysis underlying his conclu sion; nor does he identify whether the al leged defect is one of design or manufac ture.8 He simply describes the materials which he reviewed and states a conclusion. Boisjoly's affidavit, filed well after the deadline imposed by the pretrial schedule, is conclusory and lacks specific factual analysis, and is not sufficient to raise genu ine issues of material fact in response to defendant's motion for summary judgment S e e, T a u b e r v. N is s a n M o to r C o rp o ra tio n , U S A , 671 F.Supp. 1070, 1074 (D.Md.1987); L e e v. B a x t e r H e a l t h c a r e C o r p ., 721 F.Supp. 89, 96 n. 3 (D.Md.1989), a / f d . , 898 F.2d 146 (4th Cir.1990). Conclusion Based upon the files, briefs, and argu ments of counsel, IT IS ORDERED that: Defendant Bell Helicopter's motion for summary judgment is GRANTED. LET JUDGMENT BE ENTERED AG CORDINGLY. Irene HURT, et al.. Plaintiffs, v. The DOW CHEMICAL COMPANY, et al.. Defendants. No. 90-0783-C(3). United States District Court, E.D. Missouri, E.D. Sept. 28, 1990. Consumer who was allegedly injured when exposed to chemical brought action 7. T he re p o rt o f the NTSB m e ta llu rg is t is brief and states m erely that ''[t]he fracture faces of each break were exam ined with the aid of a bench binocular m icroscope an d w ere found to be ty p i c a l o f d u c t i l e o v e r s t r e s s s e p a r a t i o n s . '' D efe n d an t evidently in te rp rets the te rm overstress to in d ic a te that the s e p a ra tio n w a s c au s e d by the trem en d o u s force of the crash and not by the stress of routine operation. Plaintiffs re sp o n d that the use of the te rm overstress in d i cates only that "the load or stress placed on the part was more than the part could stand." G er h a r d A ffi d a v it , at f 5. E v e n a c c e p t i n g p l a i n t i f f s ' interpretation of the term, the court finds noth ing in the report of the NTSB m etallurgist tend- ing to show that the bell c rank w as defectively m anufactured. Indeed, plaintiffs' interpretation of the term does n o th in g to refute the affidavit t e s t i m o n y o f d e f e n d a n t ' s e x p e r t s t h a t th e bell crank fractured because of the crash. 8. T h e co u rt finds Boisjoly's failure to identify the n atu re of the defect significant. Had Boisjo ly c o n d u cted a c red ib le investigation based u p o n d a t a "o f a t y p e r e a s o n a b l y r e l i e d u p o n by e x p e r t s in th e p a r t i c u l a r f ie ld , " F e d . R . E v i d . 703, he c erta in ly w o u ld have been, able to specify w hether the defect was one of design or manu facture or, perhaps, both. davit, filed well after th* ed by the pretrial scheduk, and lacks specific factual;; hot. sufficient to raise genu* ] naterial fact in response to 'tion for summary judgment. Nissan M o to r C o rp o ra tio n , ;pp. 1070. 1074 (D.Md.1987); r H ealthcare C o rp ., 721 n. 0 (D.Md.1989), ajfd.. 898 Cir. 1990). Conclusion the files, briefs, and argu ai. 1RED that: il Helicopter's motion for meht is'GRANTED. --;.__ IENT BE ENTERED AC- 17 SYSTEM > N V -V RT, et al.. Plaintiffs, IEMICAL COMPANY, el .. Defendants. . 90-0783-03). tates District Court, . Missouri. E.D. ept. 38. 1990. who was allegedly mjurt*d lo chemical brought action ! ihe bell c ra n k w as defectively Indeed, plaimiffs' interpretation , no thing to refute the affidavit fondant's experts',that the bdl because of the crash. is B oisjolvs failure to identify d e fect s ig n ific a n t. H ad Boijyo- ' e r e '' . - Investigation bawd type j n a b l v r e l i e d u p o n by t r t i c u l a r f ie ld ," F c d .R .E v id . 701. uld hav e been able to specify :ct w a s o n e of d esig n or manu- tips. b o th . f-m HURT v. DOW CHEMICAL CO. 557 Cite as 759 F.Supp. 556 (E.D.Mo. 1990) mst chemical manufacturer. On manu- law for sale or application of chemical sub fbtterer's motion to dismiss, the District ject to FIFRA. Federal Insecticide, Fungi Hungate, J., held that: (1) Federal cide, and Rodenticide Act, 24(a), as , Fungicide,, and Rodenticide Act amended, 7 U.S.C.A. 136v(a). IjpFRA) preempted state law failure to claim, but (2) FIFRA did not impliedly <!frwmpt claims based upon state common Mary Coffey, St. Louis, Mo., for plain (L-lBr for sale or application of chemical sub- tiffs. ,j*t to FIFRA. Frank N. Gundlach. Mary C. Kickham. Motion granted in part and denied in Armstrong Teasdale Schlafly Davis & Dt- |rt. cus, St. Louis, Mo., for Dow Chemical Co. S&E L Federal Civil Procedure =1771 Court may grant motion to dismiss for ..dure to state a claim upon which relief Oube granted only when appears plaintiff prove any set of facts in support of &fc>sdaims which would entitle plaintiff to idki. Fed.Rules Civ.Proc.Rule 12(b)(6), 28 U3.C.A. Federal Civil Procedure =1829 l ,; In considering motion to dismiss, trial flMrt must take allegations of complaint as IK. Fed.Rules Civ.Proc.Rule 12(b)(6), 28 VSC.A. | | l Agriculture =9.13 States =18.65 Federal Insecticide, Fungicide, and Ro- dtobdde Act (FIFRA) preempted state law ftflure to warn claim against manufacturer Rv uf chemical that was subject to FIFRA. f fWeral Insecticide, Fungicide, and Roden. dede Act, 2(p)(2), `24(a, b), as amended, T U.S.C.A. 136(p)(2), I36v(a, b); U.S. CA. Const. Art. 6, cl. 2. L States =18.3 Supremacy clause of the United States Constitution allows Congress to legislate in fweemption of state law. U.S.C.A. Const. Art. 6. eh 2. geiVy-: L Agriculture =9.13 States =18.65 Federal Insecticide, Fungicide, and Ro- mticide Act (FIFRA) did not impliedly jirwmpt claims based upon state common Margaret E. Gangle, Geissal & Gangle. John D. Warner. Jr.. Kortenhof di Ely. Si Louis. Mo., for Rose Exterminators. ORDER HUNGATE, District Judge. This matter is before the Court on defen dant Dow Chemical Company's ("Dow Chemical'') motion to dismiss for failure to state a claim .upon which relief can be granted. Plaintiffs oppose the motion. Pursuant to this Court's diversity juris diction, plaintiff Irene Hurt seeks damages for personal injuries she allegedly sus tained after being exposed to defendant Dow Chemical's product, Dursban. Plain tiff Mark Hurt, Irene Hurt's husband, seeks damages for loss of consortium. Plaintiffs allege defendant Dow Chemical manufactured and sold Dursban. a chemi cal "unreasonably dangerous when pul to a reasonably anticipated use without know! edge of its characteristics." ('"Vniln.n! Rose Exterminator Company ("Rose"') al legedly sold and applied that chemical. Plaintiffs allege both defendants are liable for failure to warn about the dangers of Dursban.1 Plaintiffs further allege Rose is also liable for negligent application. Pursuant to Fed.R.Civ.P. 12(b)(6), defen dant Dow Chemical moves to dismiss the present complaint on the grounds that plaintiffs' state law claims are preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. 136 et GkS:-te> k `Specifically, plaintiffs allege d e fe n d an ts failed . fu rn ish information Adequately describing the nature and extent of the risk o f n e r v e d a m a g e s in h u m a n s f r o m exposure to D ursban; [and] Adequately identifying the signs and sym p toms of organophospliate poisoning, and ad vising persons exhibiting those signs and sym ptom s to avoid further exposure. D- 558 759 FEDERAL SUPPLEMENT A seq., which regulates Dursban. Movant or packaging in addition to or different J urges that the statute's labeling require from those required under this subchap- a ments "occupy the field" so as to preclude ter. state law failure to warn claims, such as 7 U.S.C. 136v(a) and 136v(b). Labeling plaintiffs' claims, citing F i s h e r v. C h e v r o n is defined in 7 U.S.C. 136(p)(2) as: C h e m i c a l C o., 716 F.Supp. 1283, 1287-88 (W.D.Mo.1989). [A]U labels and all other written, printed, '] or graphic matter-- ;> Plaintiffs do not address the F is h e r case (A) accompanying the pesticide or device i directly Instead, plaintiffs counter that at any time; or j eases from other courts outside Missouri (B) to which reference is made in the * and the Eighth Circuit find that FIFRA label or in literature accompanying the ' j does not preempt failure to warn claims pesticide or devicef.] based on state law. Alternatively, plain tiffs urge that their claims should not be deemed preempted because the claims do not expressly attack the packaging or la beling of Dursban. The issue now under consideration is whether the FIFRAprecludes plaintiffs from pursuing their claims due to preemption. ; ; ) i [4] The Supremacy Clause of the Con [1.2J A court may grant a motion to stitution, U.S. Const. Art. VI, allows Con dismiss for failure to state a claim upon gress to legislate in preemption of state which relief can be granted only when it law. G ib b o n s v. O g d e n , 22 U.S. (9 Wheat.) appears plaintiff cannot prove any set of 1, 210-11, 6 L.Ed. 23 (1824). The Supreme facts in support of its claims which would entitle plaintiff to relief. C o n l e y v. G ib s o n , 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); H a r r i s o n v. S p r i n g d a l e W a t e r & S e w e r C o m m 'n , 780 F.2d Court summarized the principles of pre emption in L o u i s i a n a P u b . S e r v . C o m m 'n v. F e d e r a l C o m m u n i c a t i o n s C o m m 'n , 476 U.S. 355, 368-69, 106 S.Ct. 1890, 1898, 90 L.Ed.2d 369 (1986) (citations omitted): 1422, 1425-26 (8th Cir. 1986) (same). Addi tionally, in considering a motion to dismiss, the Court must take the allegations of the complaint as true. C o o p e r v. P a te , 378 U.S. 546, 4 S.Ct. 1733, 12 L.Ed.2d 1030 (1964) (per curiam). (3) Upon consideration of the plaintiffs' claims in this light, the Court will grant D o w Chemical's motion to dismiss in part so as to dismiss plaintiffs' failure to warn claims. The Court will otherwise deny Dow Chemical's motion to dismiss. Pre-emption occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, when there is outright or actual conflict be tween federal and state law, where com pliance with both federal and state law Is in effect physically impossible, where there is implicit in federal la.w a barrier to state regulation, where Congress has legislated comprehensively, thus occupy ing an entire field of regulation and leav ing no room for the States to supplement federal law, or where the state law The parties do not dispute that Dursban stands as an obstacle to the accomplish is subject to the FIFRA. In general, the ment and execution of the full objectives FIFRA sets forth guidelines for the regis of Congress. tration and labeling of pesticides. In rele vant part, the FIFRA specifically provides that: A State may regulate the sale or use of any federally registered pesticide or de vice in the State, but only if and to the extent the regulation does not permit any In F i s h e r the United States District Court for the Western District of Missouri found the FIFRA expressly preempted any state labeling or packaging requirements different from or in addition to those man dated by FIFRA, but did not expressly "preempt state common law tort claims sale or use prohibited by this subchapter. arising from allegedly inadequate labels Such State shall not impose or continue and warnings." F is h e r , 716 F.Supp. at ' in effect any requirements for labelling 1286. Therefore, state failure to wini it claims would only be preen was implied preemption by I e r, 716 F.Supp. at 1289; s e e i 369 U.S. 663, 669, 82 S.Ct. lb L.Ed.2d 180 (1962). .Jn finding, implied 'pree'mp! in F is h e r did not find that pied the field" relating to pe.injuries sustained from their 716 F.Supp. at 1287. To tin F is h e r court noted Congr have intended to preempt si arisipg from the sale and u because 7 U.S.C. 136\ states to regulate the sale a. cides in terms more stringe law. Id . The F i s h e r court did, hov Missouri's common law f; claims conflict with the pur; so as to support a finding emption. Id . at 1287-89. T that Congress' purpose in e was to protect consumers ' healthy or unsafe pesticide.and by preventing deceptive at 1287; s e e a l s o N a t i o r u . C h e rtis. A s s ' n v. R o m i n g i 465, 470 (E.D.Cal. 1980). T. concluded that "[ajllowim. claims for failure to w ar with Congress' express U.S.C. 136v(b) that the iimpose . . . any requireir in g ....' " F is h e r , 716 F F itzg e ra ld v. M a N in c k h F.Supp. 404, 407 (E.D.Mich ing to its conclusion that 1 preempted state failure to . F is h e r court discussed and the cases on which plaintif t>. C h e v r o n C h e m i c a l C o.. (D.C.Cir.), c e r t, d e n i e d , 46'. S.Ct. 545, 83 L.Ed.2d 432 erts v. D o w C h e m ic a l Co., (N.D.111.1988). F is h e r , 1 1288-89. This Court finds the reas persuasive and adopts it . Ihia order. Plaintiffs attem pt to circ elusion by arguing that the 3$ HURT v. DOW CHEMICAL CO. 559 Cite as 759 F.Supp. 556 (E.D.Mo. 1990) idums would only be preempted if there "limited to an attack on defendant's labe!" ;*s implied preemption by FIFRA. Fish- but are for inadequate warning unrelated ~tr, 716 F.Supp. at 1289; see Free v. Bland, to the labeling or packaging. However. - >69 U.S. 663, 669, 82 S.Ct. 1089, 1093-94, 8 Fisher's holding extends to all tort claims :.LEd.2d 180 (1962). based on failure to warn, not just those In finding implied preemption, the Court a Fisher did not find that FIFRA "occu pied the field" relating to pesticides and to injuries sustained from their use. Fisher, limited to the actual label on a pesticide. This holding is supported by the broad defi nition of "labeling" in FIFRA. Sec 7 U.S.C. 136(p)(2). 716 F.Supp. at 1287. To the contrary, the Fisher court noted Congress could not hive intended to preempt state law claims rising from the sale and use of pesticides because 7 U.S.C. 136v(a) authorizes itttes to regulate the sale and use of pesti cides in terms more stringent than federal law. Id. v*The Fisher court did, however, find that Missouri's common law failure to warn ebims conflict with the purposes of FIFRA so as to support a finding of implied pre emption. Id. at 1287-89. The Court noted that Congress' purpose in enacting FIFRA was to protect consumers "by keeping un healthy or unsafe pesticides off the market and by preventing deceptive labeling." Id. at 1287; see also N ational Agricultural Ptems. Ass'n v. Rominger, 500 F.Supp. 465, 470 (E.D.Cal.1980). The Fisher court Plaintiffs' argument that their state tort claims are not preempted by FIFRA adopts the reasoning of Ferebee. The court in Ferebee applied the "choice of reaction" theory. Ferebee. 7,36 F.2d at 1540-43 This theory states that a state law tort claim lor failure to warn has no direct regulatory command on the pesticide manu facturer since the manufacturer can contin ue to use the EPA approved label, while simultaneously paying tort damages. Since the state's purpose, that of control ling pesticide use for compensatory pur poses, is distinct from Congress' purpose and does not interfere with application of the FIFRA, the state law tort claims are not preempted. Id. at 1541. See also Rob erts, 702 F.Supp. at 197-99 (adopting Un reasoning in Ferebee). concluded that "[allowing common law The choice of reaction theory is not per daims for failure to warn would conflict suasive. The court in Palm er v. Liggett with Congress' express provision in 7 Group, Inc., 825 F.2d 620 (1st Cir.1987). U.S.C. 136v(b) that the states `shall not likened the choice of reaction theory "to impose ... any requirements for label the free choice of coming up for air after ing__ Fisher, 716 F.Supp. at 1289; being underwater." Id. at 627, quoted in Fitzgerald v. Mallinckrodt, Inc., 681 Fisher, 716 F.Supp. at 1288. FIFRA. F.Supp. 404, 407 (E.D.Mich.1987). In com 136v(b), expressly provides that no ing to its conclusion that FIFRA impliedly "State shall . . impose . . any require preempted state failure to warn claims, the ments for labeling . .. in addition to or Fisher court discussed and rejected two of different from those required under this the cases on which plaintiffs rely: Ferebee subchapter.'' 7 U.S.C. 136v(b). This r. Chevron Chemical Co., 736 F.2d 1529 purpose is contravened by a state law tort iD.C.Cir.), cert, denied, 469 U.S. 1062, 105 claim under the choice of reaction theory. S.CL 545, 83 L.Ed.2d 432 (1984), and Rob erts v. Dow Chemical Co., 702 F.Supp. 195 IN.D.111. 1988). Fisher, 716 F.Supp. at 1288-89. If a manufacturer's warning that com plies with the Act is found inadequate under a state tort theory, the damages awarded and verdict rendered against it This Court finds the reasoning of Fisher can be viewed as state regulation: the persuasive and adopts it for purposes of decision effectively compels the manufac m this order. turer to alter its warning to conform to Plaintiffs attempt to circumvent this con different state law requirements as clusion by arguing that their claims are not "promulgated'' by a jury's findings. *560 759 FED ERA L SU PPLEM EN T P a lm e r , 825 F.2d at 627. S e e a ls o I n t e r n a t i o n a l P a p e r C o. v. O u e l l e t t e , 479 U.S. Douglas FRIESEN, Jr., Plaintiff, 481, 495, 107 S.Ct. 805. 813, 93 L.Ed.2d 883 (1987) (holding that the Clean Water Act preempted common law nuisance actions, otherwise the nuisance action would allow v. GENERAL MOTORS CORPORATION, Defendant. the affected state to du "indirectly what they could not do directly--regulate the conduct of out-of-state sources"); F itz g e r a ld , 681 F.Supp. at 407 (FIFRA preempts No. 88-1573-C-5. United States District Court, E.D. Missouri, E.D. common law failure to warn actions or such actions "would effectively authorize the March 20, 1991. state to do through the back door exactly what it cannot through the front"). Following his voluntary resignation, 151 Plaintiffs' remaining claims are not preempted by FIFRA. State law is only preempted to the extent that it conflicts with federal law. F re e, 369 U.S. at 666, 82 S.CT. at 1092. Since section 136v(a) of FI FRA specifically allows the States to regu late the "sale or use of any federally reg istered pesticide" there is no conflict be tween state and federal law as to whether former employee brought ERISA action against his former employer alleging he was owed a lump-sum payment under a special incentive separation program. On cross motions for summary judgment, the District Court, Limbaugh, J., held that em ployer's denial of employee's application to participate in special incentive separation program was not arbitrary and capricious. or not defendants are liable to plaintiff Defendant's motion granted. based upon state common law for the sale or application of Dursban. F is h e r . 716 F.Supp. at 1289. S e e a ls o D - C o n Co. v. 1. Federal Courts ^*74 A H e n b y , 723 F.Supp. 605 (N.D.Cal.1989) Venue for ERISA suit was proper in (California Proposition 65. which places re district in which plaintiff was employed and strictions on the sale and use of toxic mate in which transactions that were the basis of rials, is not preempted by FIFRA.) suit took place. Employee Retirement In Accordingly, after careful consideration, come Security Act of 1974, 502(a)(1)(B), as amended, 29 U.S.C.A. 1132(a)(1)(B). IT IS HEREBY ORDERED that defen dant Dow Chemical's motion to dismiss for failure to state a claim is granted in part so that plaintiffs' failure to warn claims, in cluding any related loss of consortium claims, are dismissed with prejudice at plaintiffs' costs. IT IS HEREBY FURTHER ORDERED (Mat defendant D o w Chemical's motion to cismiss for failure to state a claim is denied 2. Pensions <3=139 Employer's denial of ERISA benefits was reviewed under arbitrary and capri cious standard, where plan gave manage ment discretion to interpret terms of plan and to determine eligibility for benefits. Employee Retirement Income Security Act of 1974, 502(a)(1)(B), as amended, 29 U.S. C.A. 1132(a)(1)(B). ::i all o t h e r respects. 3. Pensions =136 Employer's denial of employee's re quest to participate in its special incentive separation program, on ground that em ployee was a "high potential" employee whom management did not want to entice to leave its employment, was not arbitrary and capricious, and did not violate ERISA. Employee Retirement Income Security Act (appeals court reduction of a : does not prevent interest from ; upon ;ne reduced amount from the original judgment); Poleto t* d a te d R a il Corp., 826 F.2d 1270 )87) (when court improperly delays judgment, the date of verdict is from which Section 1961 interest un); Louisiana & Arkansas Ry. r a ti, 142 F.2d 847 (5th Cir.1944) from the date of verdict may be when, through no fault of plaineciable time has elapsed between of the verdict and entry of judg'a i k y v. Chattem, Inc., 838 F.2d Cir. 1988) (Section 1961 must be ;d broadly to effectuate the purpost-judgment interest); Merrill Herce. Fenner & Sm ith, Inc. v. , 749 F.2d 496 (8th Cir. 1984) ersight in clerk's office caused judgment to be delayed some ten .(juicy required interest to be Cai rom date judgment should have ered); Turner v. Japan Lines F.2d 752 (9th Cir.1983) (adopting ibie construction of 1961 as enun- the Fifth Circuit in Pratt, su- 'ee that Section 1961 should be nstrued in favor of a prevailing vhen, as here, a delay in the entry ,ent occurs through no fault of It would be anomalous to read 961 so narrowly that the cost of Dayment is imposed on a successiff. Turner v. Japan Lines, Ltd., 752, 757 (9th Cir.1983). Other adopting an equitable construc tio n 1961, have held that when a district court judgment is afi to liability but vacated and reor a new trial on damages, and jury awards damages on remand, hould run on the amount common strict court judgments from the the first judgment. Bailey v. L ie .. 838 F.2d 149, 150 (6th Cir. see no reason why the result ffer in cases of remittitur. The -diet of January 26, 1988, estabendant's liability; obviously, such jf liability is not disturbed by -- V ' Cite am717 F.Supp. plaintiff's consent to remittitur. In this ---.^w// I case, plaintiff agreed to accept an amount answers, and (2) negligence and produc lower than the jury's award. Clearly, the liability claims were preempted by the Ft lower, final award was part of the jury's eral Insecticide, Fungicide, Rodentici original award. Therefore, interest on the Act, insofar as they were based on failu remittitur should relate back to the date of to warn. the jury's verdict. See 6A Moore's Federal Practice H58,04[2] n. 16. Motion granted in part and denied part. Conclusion An equitable construction of 28 U.S.C. 1961 requires that interest on plaintiff's reduced award of $175,000 be calculated from January 26, 1988, the date of the 1. States =18.3 Preemption is deemed mandatory whe Congress expresses a clear intent t< original jury verdict. Interest shall be cal preempt state law, where there is a conflic- culated at the applicable federal rate ac between state and federal law, where com cording to the terms of 28 U.S.C. 1961(a). pliance with both state and federal law is The clerk will enter judgment for the plain impossible, where federal law implicitly tiff accordingly. bars state regulation, where Congress has So Ordered. legislated, comprehensively, or where state law serves as an obstacle to federal objec tives. 2. Agriculture =>9.13 States =18.65 I State law negligence claim that pesti cide manufacturers failed to warn decedent Edith KENNAN, as personal representa tive of George Kennan, Deceased, Plaintiff, v. of dangers associated with products con taining PCP and highly toxic contaminants including dioxin was preempted by the Fed eral Insecticide, Fungicide and Rodenticide Act, inasmuch as state court jury verdict DOW CHEMICAL COMPANY, et would have the effect of "regulating" the m a!., Defendants. content of a warning label. Federal Insec No. 86--69--Civ--J--14. United States District Court, m M.D. Florida, Jacksonville Division. ticide, Fungicide and Rodenticide .A,cV>, 2 et seq., as amended, 7 U.S.C.A. 136 et seq. 7 3. Federal Courts =373 July 20, 1989. In a diversity case, a state's substan tive law will determine whether a defense not enumerated in civil procedure rule will ow brought suit in state court constitute an affirmative defense. Fed. agaitchemical manufacturers, alleging Rules Civ.Proc.Rule 8(c), 28 U.S.C.A. that husband was exposed to PCP containectheir pesticide products, and that he coated a fatal blood disease as a result., defendants' motion for summa ry jud^t, the District Court, Susan H. 4. Federal Civil Procedure =751 Where a defense does not tend to con trovert an element of plaintiff's prima facie case, where the defense tends to annul the Black, id that: (1) affirmative defense cause of action and not merely provide a of pree,,n was not waived by failure of different legal standard, and where failure defenda0 plead such defense in their to plead the defense would tend to surprise a plaintiff, the defense must be considered 717 F E D E R A L S U P P L E M E N T affirmative defense." Fed.Rules Civ. roc.Rule 8(c), 28 U.S.C.A. See publication Words and Phrases for other judicial constructions and definitions. ment of the Federal Insecticide, Fungicide, and Rodenticide Act. Federal Insecticide, Fungicide and Rodenticide Act, 2 et seq., as amended, 7 U.S.C.A. 136 et seq. 5. Agriculture =>9.13 States =>18.65 Preemption by the Federal'Insecticide, Fungicide, and Rodenticide Act constituted an affirmative defense in negligence and products liability suit arising from expo sure to pesticide products containing PCP. Fed.Rules Civ.Proc.Rule 8(c), 28 U.S.C.A. 6. Federal Civil Procedure =751, 846 Generally, if a party fails to raise an affirmative defense in its pleadings, that party waives its right to raise the defense at trial; however, if party can show that its opponent would not be prejudiced by court's hearing evidence on the issue at trial, court should permit party to amend its pleadings. Fed.Rules Civ.Proc.Rules 8(c), 15(b), 28 U.S.C.A. 7. Federal Civil Procedure =751 Party may not raise an affirmative de fense by reference thereto in a memoran dum offered in support of a motion for summary judgment. Fed.Rules Civ.Proc. Rules 8(c), 56, 28 U.S.C.A. 10. Agriculture =9.13 States =18.65 To extent that products liability claims were based on the defective and unreason ably dangerous condition of pesticides due to the failure to warn, claims were preempted by the Federal Insecticide, Fun gicide, and Rodenticide Act. Federal Insec ticide, Fungicide and Rodenticide Act, 2 et seq., as amended, 7 U.S.C.A. 136 et seq. Wayne Hogan, Jacksonville, Fla., for plaintiff. Charles C. Howell, III, William R. Swain, Jeffrey D. Dunn, Don H. Lester, Frank Hession, Victor M. Halback, Jr., Jackson ville, Fla., Joseph J. Ortego, Uniondale, N.Y., and Peter D. Braun, Buffalo, N.Y., for defendants. AMENDED OPINION AND ORDER 1 8. Federal Civil Procedure =751 Defendants did not waive affirmative defense of preemption in negligence and products liability suit arising from expo sure to pesticide products containing PCP by their failure to plead the defense in their answers, and could assert the defense in motion for summary judgment, in absence of prejudice to plaintiff. Fed.Rules Civ. Proc.Rule 8(c), 28 U.S.C.A. 9. Agriculture "=9.13 States =18.65 Preemption defense was not unavail able to defendants in negligence and prod ucts liability suit arising from exposure to pesticides, on ground that decedent was exposed to the pesticides prior to the enact- SUSAN H. BLACK, District Judge. This case came on to be heard on Reichold Chemicals, Inc.'s Motion For Summary Judgment, filed on October 21, 1988. The remaining defendants adopted .Reichold's motion. Plaintiff filed a response in oppo sition to the motion on November 14, 1988. The Court heard oral argument on Decem ber 2, 1988. At the hearing, the Court ordered the parties to file various supple mental memoranda. Reichold filed a sup plemental memorandum on December 16, 1988. Plaintiff filed a response to the sup plemental memorandum on January 6, 1989. Reichold filed a reply to plaintiff's supplemental memorandum on January 18, 1989. 1. This Court conducted a charge conference on June 27, 1989, in order to obtain a final jury charge in this case. In the course of that hear ing the Court became aware of various ques tions as to the interpretation of certain parts of this Court's original Opinion And Order, filed January 25, 1989. The Court shall, therefore, file this Amended Opinion And Order to clarify those issues. KENNAN v. DOW CHEMICAL CO. 801 Cite u 717 F.Supp. 799 (M.D.Fla. 1989) I. Procedural History Defendants Idacon, Forshaw, Dow Plaintiff filed the original Complaint in this case on December 18, 1985, in the Circuit Court for Duval County, Florida. The original Complaint named Dow Chemi cal Company, Monsanto Chemical Compa ny, Reichold Chemicals, Inc., and Vulcan Materials Company. The defendants joint ly removed the case to this Court on Janu ary 30, 1986, pursuant to the Court's diver sity jurisdiction. Subsequently, the various defendants filed answers to the Complaint. Chemical Co., and Monsanto filed motions for continuance of trial. Defendants Ida con and Forshaw argued that because they were joined late in the litigation that they did not have adequate time to conduct dis covery. Defendants Dow and Monsanto argued that they needed more time to con duct discovery so that they could properly prepare a motion for summary judgment. The Court denied the motions for continu ance on November 2, 1987, with leave for the defendants to renew their motions and On November 25, 1986, this Court en present oral argument in support of their tered an Order For Limiting Time For Com motions at the pretrial conference. pletion Of Discovery And Setting Pretrial Conference. That order cut off discovery on March 31, 1987, set a deadline for filing motions to add parties and for summary judgment on April 5, 1987, and set a pre trial conference for May 5, 1987. At the pretrial conference on November 12, 1987, it appeared that plaintiff had failed to provide the defendants with cer tain evidence that plaintiff intended to in troduce at trial. In addition, plaintiff failed to list the evidence in the pretrial stipula On April 3, 1987, plaintiff filed a motion tion filed by the parties on November 6, to add Idacon and Forshaw Industries as 1987. The Court ordered plaintiff to pro defendants. On April 6, 1987, defendant vide the evidence to the defendants and for Vulcan Materials filed a motion requesting the defendants to then file motions with additional time in which to file a motion for specific objections to the evidence. The summary judgment. On April 9, 1987, this plaintiff provided the defendants with the Court filed an Amended Order For Pretrial evidence, and the defendants subsequently Conference and Limiting Time For Comple filed motions to strike the evidence arguing tion Of Discovery. The Court extended the that they were prejudiced by plaintiffs late discovery deadline to May 30, 1987, set a disclosure and their inability to conduct deadline on which motions were to be filed discovery. for June 22, 1987, and set the pretrial con On December 18, 1987, the Court grant ference for July 22, 1987. ed defendants' motions to exclude any evi On May 5, 1987, the Magistrate granted plaintiff's motion to add parties. Pursuant to that order, plaintiff on June 17, 1987, filed the Amended Complaint at bar. The defendants subsequently filed answers to the Amended Complaint. On June 18 and 19, 1987, respectively, Defendants Dow Chemical and Monsanto moved to continue the pretrial conference. The Court granted the motion on June 23, 1987. The Court extended discovery through September 30, 1987, required that motions for summary judgment be filed no later than October 12, 1987, and that the parties attend a pretrial dence not specifically listed by plaintiff on the pretrial stipulation filed on November 6, 1987. The Court gave plaintiff leave to file a motion for continuance of trial with the understanding that such a motion would be automatically granted and that discovery would be reopened concerning the aforementioned evidence. Plaintiff filed a motion for continuance on December 21, 1987. The Court granted plaintiff's motion for continuance on December 23, 1987, and removed the case from the trial calendar. The Court also extended dis covery through February 1, 1988. conference on November 12, 1987. On Sep The defendants each filed motions for tember 10, 1987, the Court set the case for summary judgment on the issue of causa trial during the trial term commencing on tion in May and June, 1988. Plaintiff filed December 28, 1987. a response on June 16, 1988. On Septem 8 0 2 717 FEDERAL SUPPLEMENT ber 29, 1988, the Court filed an opinion and order denying the motions for summary judgment. On September 19, 1988, the Court once again set the case for trial during the trial term commencing on February 27, 1989. Thereafter, defendant Reichold filed the in stant motion for summary' judgment on October 21, 1988. The other defendants adopted the motion, the plaintiff responded, the Court heard oral argument, and the parties filed supplemental memoranda.2 II. Summary Of The Amended Complaint The Amended Complaint filed on June 17, 1987, alleges that George Kennan [here inafter ``decedent''] was exposed to pentachlorophenol [hereinafter "PCP"], a chemi cal contained in products manufactured by the defendants, while working for Koppers Company in Alachua County, Florida, be ginning in 1961 and continuing through the 1970's and 1980's. Plaintiff alleges that due to the decedent's exposure to PCP, the decedent contracted a blood disease, suf fered severe complications, and died. Count I of the Amended Complaint alleg es a claim for negligence in that the defen dants: 1) failed to warn the decedent of the dangers associated with products contain ing PCP and highly toxic contaminants in cluding dioxin, Amended Complaint HU8(c) & 8(d); 2) continued to design, manufac ture, and market products containing PCP after it became reasonably feasible to de sign comparable products not containing the chemical, Amended Complaint H8(b); and 3) failed to take reasonable steps to remove highly toxic contaminants from products containing PCP. Amended Com plaint H8(c). Count II of the Amended Complaint al leges a claim for strict products liability in that the products produced by the defen dants: 1) did not have a reasonably ade- quate warning of the potential harm that might result from exposure to the products containing PCP, an adequate warning of the presence of highly toxic contaminants, including dioxins, or instructions for work ing in the vicinity of PCP, Amended Com plaint MI 14(a) & 14(d); 2) contained PCP after it became reasonably feasible to de sign, manufacture and market reasonably comparable products not containing PCP; and 3) carried with them highly toxic con taminants including dioxins. III. Defendants' Motion For Summary Judgment Defendants argue that neither count of the Amended Complaint states a cause of action because of federal preemption of state tort law. In particular, the defen dants argue that a damage award under either count would have the effect of regu lating insecticide labels contrary to regula tions promulgated by the Environmental Protection Agency [hereinafter "EPA"] pursuant to the Federal Insecticide, Fungi cide, and Rodenticide Act, [hereinafter "FIFRA''], 7 U.S.C. 136, et seq. Defendants argue that plaintiff's negligence count is wholly based on a theory that an inade quate label constituted negligent failure to warn, and that damage award based on state negligence law would cause the de fendants to change their labels in contra vention of FIFRA. Similarly, the defen dants argue that the strict liability count is based on a theory that an inadequate label rendered the defendants' products that con tained PCP defective and unreasonably dangerous. A damage award based on strict liability, defendants argue, would also contravene FIFRA. Plaintiff responds that preemption is an affirmative defense, and that the defen dants' failure to plead preemption in their answers to the Amended Complaint consti tutes waiver of the defense.3 Plaintiff also 2 . The Court notes that each of these m otions for summary judgment were filed well past the Oc tober 12, 1987, deadline established by the Court in its order of June 23, 1987. The parties were never given leave by the Court to amend that order or otherwise file their m otions. The Court did not raise this issue with respect to the first motion for summary judgment. The Court will waive application of paragraph 2(b) and 9 of that order for purposes of the instant motion. 3. Plaintiff took this position for the first time in her supplemental memorandum of law. At oral argument on Reichold's motion for summary judgment, plaintiff stated that she would not KENNAN V. DOW CHEMICAL CO. 803 Cite u 717 F.Supp. 799 (M.D.Fla. 1989) argues that defendants' assertion of the resolve all reasonable doubts in that par defense at this late date will cause her ty's favor. prejudice. Plaintiff further responds that because the decedent's exposure to PCP occurred prior to the promulgation of FIFRA's labeling provisions, the cause of ac tion could not be preempted. Finally, plain tiff states that there is no preemption be cause state law is not in conflict with feder al law. The Eleventh Circuit Court of Appeals explained the reasonableness standard in W SB-TVv. Lee, 842 F.2d 1266, 1270 (11th Cir.1988): In deciding whether an inference is rea sonable, the court must "cull the uni verse of possible inferences from the facts established by weighing each A. Standard On S u m m ary Judgm ent against the abstract standard of reason A district court's review of a case on a ableness." ... The opposing party's in motion for summary judgment is governed ferences need not be more probable than by Fed.R.Civ.P. 56. A moving party dis those inferences in favor of the movant charges its burden on a motion for summa to create a factual dispute, so long as ry judgment by "showing" or "pointing they reasonably may be drawn from the out" to the district court that there is an facts.... When more than one infer absence of evidence to support the nonmov ence reasonably can be drawn, it is for ing party's case. See Celotex Corp. v. the trier of fact to determine the proper Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, one. 2553, 91 L.Ed.2d 265 (1986). Fed.R.Civ.P. 842 F.2d at 1270 (citations omitted). 56 permits the moving party to discharge Fed.R.Civ.P. 56(c) requires the district its burden with or without supporting affi court to deny a motion for summary judg davits and to move for summary judgment ment if the court finds that there exists a on the case as a whole or on any claim. genuine issue for trial. What constitutes a 477 U.S. at 325, 106 S.Ct. at 2553. When a "genuine issue for trial" was addressed by moving party has so discharged its burden, the Supreme Court in Anderson v. Liberty the nonmoving party must then "go beyond Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, the pleadings and by her own affidavits, or 91 L.Ed.2d 202 (1986). In Anderson, the by the `depositions, answers to interrogato Court stated that "summary judgment will ries, and admissions on file,' designate `spe not lie if the dispute about a material fact cific facts showing that there is a genuine is `genuine,' that is, if the evidence is such issue for trial.'" 477 U.S. at 324, 106 S.Ct. that a reasonable jury could return a ver at 2553. dict for the nonmoving party." 477 U.S. at The district court must enter summary 248, 106 S.Ct. at 2510. The Court further judgment "after adequate, time for dis stated that the inquiry is "whether the covery and upon motion, against a party evidence presents a sufficient disagree who fails to make a showing sufficient to ment to require submission to a jury or establish the existence of an element essen whether it is so one-sided that one party tial to that party's case, and on which that must prevail as a matter of law." 477 U.S. party will bear the burden of proof at tri at 251-52, 106 S.Ct. at 2511-2512. al." 477 U.S. at 322, 106 S.Ct. at 2552; The Court finds that the parties have had Fed.R.Civ.P. 56(c). See also Reflectone, adequate time to conduct discovery in this Inc. v. Farrand Optical Co., Inc., 862 F.2d case. The Court will, therefore, address 841, 843-44 (11th Cir.1989). Whether or the motion for summary judgment. not the moving party has met its burden of establishing that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law, B. Preemption O f State Tort Law By FIFRA 0 1. The Concept o f Federal Preemption requires the court to draw inferences from [1] The doctrine of preemption is based the evidence as viewed in the light most on Article VI, Clause 2 of the United States favorable to the nonmoving party, and to Constitution which provides: object to defendants' amending their pleadings to add the affirmative defense of preemption.  804 717 FEDERAL SUPPLEMENT The Constitution and the Laws of the United States which shall be made in Pursuance thererof . . . shall be the su preme 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 notwithstand ing. Preemption is deemed mandatory when Congress expresses a clear intent to preempt state law, where there is a conflict between state and federal law, where com pliance with both state and federal law is impossible, where federal law implicitly bars state regulation, where Congress has legislated comprehensively, or where state law serves as an obstacle to federal objec tives. P u b l i c S e r v i c e C o m m i s s i o n v. F e d e r a l C o m m u n i c a t i o n s C o m m i s s i o n , 476 U.S. 355, 368-69, 106 S.Ct. 1890, 1898-1899, 90 L.Ed.2d 369 (1986);- S i l k w o o d v. K e r r M c G e e C o r p ., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). This Court has rec ognized that, in deciding whether a federal statute preempts state law, "the Court must ascertain Congressional intent in en acting the federal statute at issue." B lu e C r o s s a n d B l u e S h i e l d o f F lo r id a , In c . v. D e p a r t m e n t o f B a n k i n g a n d F i n a n c e , 613 F.Supp. 188, 191 (M.D.Fla.1985), a f f d 791 F.2d 1501 (11th Cir.1986). An analysis of the legislative history and the specific pro visions of FIFRA reveals that in enacting FIFRA Congress expressly intended to preempt state labeling requirements. 2. L e g i s l a t i v e H i s t o r y o f F I F R A FIFRA represents the federal govern ment's detailed comprehensive system, for the strict regulation of pesticides. FIFRA was enacted in June, 1947, to replace and expand the protection afforded by the In secticide Act of 1910, the first federal act regulating the pesticide industry. H.R. Rep. No. 313, 80th Cong., 1st Sess., r e p r i n t e d i n 1947 U.S.Code Cong. & Ad. News 1200, 1201. The 1947 Act gave the United States Department of Agriculture authority over the regulation, registration a n d labeling of "economic poisons and de vices." ., In 1972, FIFRA was completely revised. Responsibility for enforcement of FIFRA was transferred from the Department of Agriculture to the newly created EPA. The two major goals of the 1972 revisions were to "regulate the use of pesticides to protect man and his environment" and to "extend Federal pesticide regulations to ac tions e n t i r e l y w i t h i n a s i n g l e S t a t e . " S.Rep. No. 92-838, 92d Cong.2d Sess., r e p r i n t e d i n 1972 U.S.Code Cong. & Ad. News 3993 (emphasis added). The intent to create a comprehensive regulatory stat ute is demonstrated by the President's en vironmental message included in the Sen ate Report on the proposed 1972 Act. It notes, in pertinent part, that: Currently, Federal controls over pesti cides consist of the regulation of the registration and labeling requirements of the Federal Insecticide, Fungicide and Rodenticide Act. The administrative pro cesses contained in the law are inordi nately cumbersome and time consuming, and there is no authority to deal with the actual use of pesticides. The labels ap proved under the Act specify uses to which pesticide may be put, but there is no way to insure that the label will be read or obeyed. The comprehensive strengthening of our pesticide control laws is needed. S.Rep. No. 92-970, 92d Cong., 2d Sess., r e p r i n t e d i n 1972 U.S.Code Cong. & Ad. News 4092, 4093-94. Both the House and Senate bills explicit ly detail the desire for federal preemption concerning labeling. The House bill pro vides: Section 23. AUTHORITY' OF STATES Subsection (b) p r e e m p t s a n y S t a t e l a b e l i n g o r p a c k a g i n g r e q u i r e m e n t s differ ing from such requirements under the Act. H.R. 10729, 92d Cong., 2d Sess., r e p r i n t e d i n 1972 U.S.Code Cong. & Ad. News 4010, 4021 (emphasis added). Similarly, the Sen ate bill provides: Section 24. AUTHORITY OF STATES Subsection (b) p r e e m p t s a n y S t a t e o r local g o v e r n m e n t la b elin g o r p a c ka g in g r e q u i r e m e n t s differing from such re quirements under the Act. KENNAN V. DOW CHEM ICAL CO. 805 Cite as 717 F.Supp. 799 (M.D.Fla. 1989) S.Rep. No. 92-970, 92d Cong., 2d Sess., 4. J u d i c i a l P r e c e d e n t i n S u p p o r t o f r e p r i n t e d i n 1972 U.S.Code Cong. & Ad. F IF R A 's P re e m p tiv e S ta tu s News 4092, 4128 (emphasis added). There FIFRA's preemption of state law claims fore, it is clear that the express intent of based on theories of negligent labeling and Congress in enacting the 1972 revisions to failure to warn was recognized in F i t z g e r FIFRA was to preempt state regulation of a l d v. M a l l i n c k r o d t , 681 F.Supp. 404 (E.D.. labeling requirements. The authority to Mich.1987). In F it z g e r a l d , plaintiff alleged promulgate such regulations was reserved personal injuries resulting from his expo exclusively for the EPA. sure to defendant's chemical product, Calo- Clor, during the course of his employment 3. C o n s t r u c t i o n o f F I F R A a n d Calo-Clor is an inorganic mercury-based its R eg u la tio n s fungicide which was registered with the Pursuant to 7 U.S.C. 136a(c)(5)(C), the EPA pursuant to FIFRA. administrator of the EPA shall register a In granting summary judgment to the pesticide if he determines, i n t e r a lia , that defendant on the basis of preemption, the it will perform its intended function with Court recognized that in enacting FIFRA out "unreasonably adverse effects" on man or the environment. A pesticide that is duly registered with the EPA must bear a label which contains EPA-approved warn ings that the product is adequate to protect health and the environment. 7 U.S.C. 136(q)(l)(G). Moreover, a label cannot contain language that is not approved by the EPA. 40 C.F.R. 162.10(a) Pursuant "Congress had e n a c t e d a c o m p r e h e n s i v e s y s t e m for the registration and labeling of pesticides." 681 F.Supp. at 406 (emphasis added). The Court determined that "any state law tort recovery based on failure to warn theory, would abrogate the Congress' intent to provide uniform regulations gov erning the labeling of pesticides." Id . at 407. to the regulations promulgated under FI In reaching its conclusion that state tort FRA, the EPA not only specifies the partic claims were preempted by FIFRA, the ular warning language required, se e 40 Court in F i t z g e r a l d considered and rejected C.F.R. 162.10(a)(1), but also the type size, an earlier contrary holding in F e r e b e e v. s e e 40 C.F.R. 162.10(a)(2)(ii)(A), color, s e e C h e v r o n C h e m i c a l C o m p a n y , 736 F.2d 40 C.F.R. 162.10(a)(2)(ii)(B), and place ment, s e e 40 C.F.R. 162.10(a)(4), of the warning and all other specifications con cerning labeling. FIFRA is explicit as to the preemption of state authority to regulate pesticide label ing. It specifically provides that: Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter. 1529 (D.C.Cir.), c e r t, d e n ie d , 469 U S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984). In stead, the court relied on the recent holding in P a l m e r v. L i g g e t t G r o u p , I n c ., 825 F.2d 620 (1st Cir. 1987), c e r t, d e n ie d , -- U S. ----- , 109 S.Ct. 838, 102 L.Ed.2d 970 (1989), where the First Circuit reasoned that a finding that a label is inadequate under a state tort theory, effectively compels the manufacturer to alter its warning to conform to different state law requirements as "promul gated" by a jury's fin d in g s.... This 7 U.S.C. 136v(b). challenge to the federal warning label's Thus, the statutory construction of FI FRA and its legislative history demon strate a definitive congressional mandate that the regulation of pesticide labeling be controlled solely by the EPA. It is clear sufficiency--surely contravenes the Act's policy of uniform labeling.. . . In deed, it arrogates to a single jury the regulatory power explicitly denied to all fifty states' legislative bodies. that Congress has legislated comprehen F i t z g e r a l d , 681 F.Supp. at 407, (q u o t i n g sively, barring the states from interfering P a l m e r v. L i g g e t t G r o u p , I n c ., 825 F.2d at with the regulation of pesticide labels. 627-28). S e e a l s o C i p o l l o n e v. L i g g e t t 8 0 6 717 FEDERAL SUPPLEMENT G r o u p , In c ., 789 F.2d 181 (3rd Cir.1986) (finding the Federal Cigarette Labeling and Advertising Act preempts state tort claims based on alleged inadequacy of warnings). The reasoning of F i t z g e r a l d applies in this action. To permit additional labeling requirements to be imposed under state common law "would effectively authorize the state to do through the back door" that which was expressly preempted through g e r a l d v. M a l l i n c k r o d t , I n c ., 681 F.Supp. 404 (E.D.Mich.1987), in which it was held that FIFRA preempts state tort actions based on the inadequacy of an EPA-ap proved label. Most recently, the "choice of reaction" analysis has been rejected by the United States Supreme Court in I n t e r n a t i o n a l P a p e r C o m p a n y v . O u e l l e t t e , 479 U.S. 481, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987). the front. F itz g e r a ld , 681 F.Supp. at 407. Plaintiff's argument against preemption is primarily based upon F e r e b e e v. C h e v r o n C h e m ic a l C o., 736 F.2d 1529 (D.C.Cir. 1984), which held that FIFRA does not preempt state tort actions based on the inadequacy of an EPA-approved label. Plaintiff's Brief, pp. 4-6. Central to the decision in F e r e b e e was the determination that a state court jury verdict does not automatically "require" a manufacturer to change its labels, but rather, leaves to the manufacturer the "choice of how to react" to such jury verdict. Id . a t 1542. ("Chev ron can continue to use the EPA-approved label and can at the same time pay dam ages to successful tort plaintiffs such as Mr. Ferebee; alternatively, Chevron can petition the EPA to allow the label to be made more comprehensive.'') This Court must reject any argument holding that a state court jury verdict would merely leave to the manufacturer the "choice of how to react" to such jury verdict and would not automatically "re quire" a manufacturer to change its labels. As the First. Circuit noted in P a lm e r : T h is "ch o ice o f r e a c tio n " se e m s a k in to th e fr e e choice o f c o m in g u p f o r a ir a f t e r b e i n g u n d e r w a t e r . Once a jury has found a label inadequate under state law, and the manufacturer liable fo r damages for negligently employing it, it is unthinkable that any manufacturer would not immediately take steps to min imize its exposure to continued liability. T he m o s t o bviotis ch a n g e it ca n take, o f c o u rse, is to c h a n g e its label. P a l m e r v. L i g g e t t G r o u p , 825 F.2d at 62728 (emphasis added). O u e lle tte involved an action against a paper mill located in New York State that discharged effluents into Lake Champlain pursuant to a discharge permit issued un der the Clean Water Act, 33 U.S.C. 1251, e t seg. Plaintiffs, residents of Vermont, filed suit against the paper mill alleging that the discharge constituted a commonlaw nuisance under Vermont law. A pre emption argument was raised based upon the Clean Water Act's prohibition of state regulation of an out-of-state "source" of discharged effluents. The Supreme Court held that the Clean Water Act preempted the common-law nuisance action. In doing so, the Court noted: The affected state's nuisance laws would subject [International Paper] to the threat of legal and equitable penal ties__ Such p e n a l t i e s w o u l d c o m p e l th e s o u r c e to adopt different control standards and a different compliance schedule from those approved by the E P A .... O u e lle tte , 479 U.S. at 495, 107 S.Ct. at 813 (emphasis added). Additionally, the Court held that: If the Vermont court ruled that respon dents were entitled to the full amount of damages and injunctive relief sought in the complaint, a t a m i n i m u m [Interna tional Paper] w o u l d h a v e to c h a n g e its methods of doing business and control ling pollution to avoid the threat of ongo ing liability__ The inevitable result of such suits would be that Vermont and other states could do indirectly what they could not do directly--regulate the con duct of out-of-state sources. Id . (emphasis added). This "choice of reaction" analysis was [2] The Court finds, therefore, that a expressly considered and rejected in F it z state court jury verdict would have the KENNAN v. DOW CHEMICAL CO. 807 Cite su 717 F.Supp. 799 (M.D.Fla. 1989) effect of "regulating" the content of a the defense does not appear in the plead warning label. Since FIFRA expressly ings. I n g r a h a m v. U n i t e d S t a t e s , 808 preempts state law regulation of pesticide F.2d 1075, 1079 (5th Cir.1987). labeling, plaintiff's state law claims fail to the extent that they are based on defen dants' failure to warn. H a s s a n v. U .S . P o s t a l S e r v i c e , 842 F.2d 260, 263 (11th Cir.1988). S e e a ls o I n R e R a w s o n F o o d S e r v i c e , I n c ., 846 F.2d 1343, C. F e d . R . C iv . P . 8 (c ) 1349 (11th Cir.1988). In a diversity case, a state's substantive law will, therefore, de Plaintiff argues that preemption is an termine whether or not a defense not enu affirmative defense and that defendants' merated in Fed.R.Civ.P. 8(c) will constitute failure to plead the defense in their an an affirmative defense. T r o x l e r v. O w e n s - swers constitutes waiver of the defense. I l l i n o i s , I n c ., 717 F.2d 530, 532 (11th Cir. The Court will first determine whether or 1983); F r e e m a n v. C h e v r o n O il C o m p a n y , not the defense of preemption constitutes 517 F.2d 201, 204 (5th Cir. 1975). The Court an "affirmative defense" under Fed.R. will first determine whether or not preemp Civ.P. 8(c) and then analyze whether or not tion is part of plaintiff's p r i m a f a c i e case the defense has been waived. Fed.R.Civ.P. under Florida law. Second, the Court will 8(c) provides in pertinent part as follows: determine the logical relationship between (c) Affirmative Defenses. In pleading the defense of preemption and plaintiff's to a preceding pleading, a party shall set causes of action. Finally, the Court will forth affirmatively accord and satisfac make a determination whether or not the tion, arbitration and award, assumption absence of the defense of preemption in a of risk, contributory negligence, dis case of negligence or strict liability would charge in bankruptcy, duress, estoppel, unfairly surprise plaintiff. failure of consideration, fraud, illegality, injury by fellow servant, laches, license, 1. P r i m a F a c i e C a s e payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoid ance or affirmative defense. To establish a p r i m a f a c i e case for negli gence in a products liability case, plaintiff must show 1) the existence of a duty on the part of the defendant to protect the plain Fed.R.Civ.P. 8(c). Defenses that are not tiff from injury or damage of which plain specifically included in Fed.R.Civ.P. 8(c) tiff complains, 2) the failure of the defen may be considered affirmative defenses un dant to perform that duty, and 3) injury or der the clause, "any other matter constitut damage to plaintiff proximately caused by ing an avoidance or affirmative defense." such failure. B l a c k t o n B u i l d i n g S u p p l y Id . C o. v. G a r e s c h e , 383 So.2d 250, 251 (Fla. [3] A panel of the Eleventh Circuit 5th DCA 1980). To establish a p r i m a f a c i e Court of Appeals recently stated the test case of strict liability in tort, plaintiff must for determining whether or not a defense is show 1) the m anufacturer's relationship to an "affirmative defense:" the product in question, 2) the defect and An affirmative defense has been de unreasonably dangerous condition of the scribed as "[a]ny matter that does not product, and 3) the existence of the proxi tend to controvert the opposing party's mate causal connection between such condi prima facie case as determined by the tion and the user's injuries or damages. application of substantive law." 2A J. W e s t v. C a t e r p i l l a r T r a c t o r C o m p a n y , Moore, Moore's Federal Practice H8.27[3] In c ., 336 So.2d 80, 87 (Fla. 1976). (2d ed. 1985). In determining whether a The Court finds that under Florida law, particular argument is an affirmative de plaintiff need not establish the absence of fense, courts consider "the logical rela preemption of state law by federal law as tionship between the defense and the an element of her p r i m a f a c i e cases of cause of action," and the likelihood that either negligence or strict liability in tort. the plaintiff will be unfairly surprised if A showing of preemption does not tend to 8U8 i i 7 FEDEKAL, SUEFEEiVlEiNi controvert any element of plaintiffs prim a facie case. 2. Logical Relationship Defendants argue that preemption is merely a choice of law principle. Defen dants cite cases in which actions requiring the construction of collective bargaining agreements are analyzed under federal la bor law rather than state contract law. See B illy Jack, Etc. v. New York Coat, Suit, Etc., 511 F.Supp. 1180 (S.D.N.Y. 1981). Plaintiffs agree that preemption is a choice of law principle, but that such a characterization still renders preemption an affirmative defense. The Court finds that in this case, preemp tion is not merely a choice of law principle. Unlike the case of collective bargaining agreements, a finding of preemption in this case would annul all or part of the statecreated cause of action ab initio and would not replace it with a parallel federal cause of action.4 Although this Court agrees that in the labor law context the preemp tion defense acts as a choice of law princi ple, the same cannot be said in this case. 3. Surprise Although plaintiff should have been on notice of the existence of federal statutes preempting state regulation of insecticide warning labels, such notice would not nec essarily preclude a finding of unfair sur prise. In this case, even if plaintiff were on notice of federal statutes preempting state regulation of warning labels, plaintiff could have relied on Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C.Cir.), cert, denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984), which held that FIFRA did not preempt state common law tort remedies. Defendants' decision to challenge Ferebee was based on Fitzgerald v. Mallinckrodt, Inc., 681 F.Supp. 404 (E.D.Mich.1987), a case decided during the pendency of this litigation and subsequent to this case first having been set for trial. Given plaintiff's reasonable understanding that federal law did not preempt state tort law prior to the decision of Fitzgerald, the Court finds that defendant's decision to assert the preemption defense would tend to surprise plaintiff. 4. Preemption Is A n A ffirm ative Defense In This Case [4,5] Where a defense does not tend tocontrovert an element of plaintiff's prim a facie case, where the defense tends to an nul the cause of action and not merely provide a different legal standard, and where failure to plead the defense would tend to surprise a plaintiff, the defense must be considered an affirmative defense. Based on the foregoing factors, the Court finds that in this case, preemption consti tutes an affirmative defense.5 D. Waiver O f The Defense Of Preemption [6] As a general rule, if a party fails to raise an affirmative defense in its plead ings, that party waives its right to raise the defense at trial. Hassan, 842 F.2d at 260. If, however, a party can show that its opponent would not be prejudiced by the Court's hearing evidence on the issue at trial, the Court should permit the party to amend its pleadings. Id. Such an excep tion to the general rule is supported by the liberal federal pleading rules. See Fed.R. Civ.P. 15(b). [7] A party may not, however, raise an affirmative defense by reference thereto in a memorandum offered in support of a motion for summary judgment. Funding System s Leasing Corp. v. Pugh, 530 F.2d 91, 96 (5th Cir. 1976). Sec also United States v. B urzynski Cancer Research In stitute, 819 F.2d 1301, 1307 (5th Cir.1987), cert, denied, -- U .S.----- , 108 S.Ct. 1026, 4. T h e C o u rt n o te s th a t fe d e ra l c o u r ts in c lu d in g courts in the ju risd ictio n in w h ich Billy Jack was decided are divided on the question of w hether or not preem p tio n is m erely a choice of law p r i n c i p l e , see S a m e lli v. Tickle, 5 5 6 F . S u p p . 557, 561-62 (E.D .N.Y .1983), or w h a t c o n se q u e n c e s derive from such a characterization of the pre em ption defense. 5. T h e C ourt n o tes th a t th is fin d in g is in ag re e ment with the characterization of the preem p t i o n d e f e n s e i n F l o r i d a s t a t e c o u r t s . Se e Walm er v. Chrysler Corp., 474 S o.2d 834, 839 (Fla. 4th DCA 1985), quashed on other grounds 499 So.2d 823 (Fla. 1986) (in a negligence and strict liability case, it w a s d e fe n d a n t's b u rd e n to prove federal preemption). T irst having been set for trial, f's reasonable understanding iw did not preempt state tort ie decision of Fitzgerald, the hat defendant's decision to emption defense would tend lintiff. jtion Is A n Affirm ative nse In This Case e a defense does not tend to dement of plaintiffs prima re the defense tends to anof action and not merely erent legal standard, and o plead the defense would e a plaintiff, the defense red an affirmative defense. >regoing factors, the Court is case, preemption constiitive ^"fense.5 er O f The Defense Preemption ral rule, if a party fails to tive defense in its pleadaives its right to raise the Hassan, 842 F.2d at 260, tarty can show that its lot be prejudiced by the vidence on the issue at ould permit the party to rs. Id. Such an exceprule is supported by the iding rules. See Fed.R. v not, however, raise an by reference thereto in fered in support of a y judgment. Funding 'orp. v. Pugh, 530 F.2d . '8). Sec also United i Cancer Research. In11, 1307 (5th Cir.1987); ' 3 .----- , 108 S.Ct. 1026, 1 it this finding is in agree- teriz; of the preemp ia sts. .ourts. See Wol- 474 So.2d .834. 839 (Fla. e d on other grounds 499 n a negligence and strict :endant's burden to prove ' a.. 4 1j ? KENNAN v. DOW CHEMICAL CO. 809 Cite a* 717 F.Supp. 799 (M.B.Fla. 1989) )8 L.Ed.2d 990 (1988). The district court's Plaintiff asserts that she will suffer prej- nclusion of the affirmative defense in the udice from the defendants' asserting the pretrial order could, however, cure defen- affirmative defense of preemption at this font's failure to include the defense in its time. Plaintiff argues that the affirmative answer. Jackson v. Seaboard Coast L ine defense raises factual issues on which Railroad Co., 678 F.2d 992, 1012 (11th plaintiff has not had an opportunity to con- Cir 1982). duct discovery. In particular, plaintiff ar gues that there is a material factual issue Defendants have neither moved to wW hh6ettihl<e?rr OoTr niiVott tuhiec EPA* a--pr rproved the de. aimmeennda cthneeuir aaunoswnveirvs or -s--ou0g..h. t to have the iffirmative defense included in the pretrial fendants' .la.be. ls. TMPlaintiff also ,artgru,lfe,s th^a,t there is a material issue of fact whether or irder by so indicating in the pretrial stipu- not the defendants gave the EPA all the ation filed on November 6, 1987. The de fendants have, however, stated in a foot note to their memorandum in support of their motion for summary judgment that in information necessary for the EPA to prop erly warn consumers against the dangers of defendants' products. Finally, plaintiff argues that there is an issue of fact wheth er or not a damage award would cause the the event the Court found preemption to be defendants to change their labels such that an affirmative defense under Fed.R. Civ.P. the damage award would constitute regula 8(c), they requested leave to amend their tion. The Court will address each of these answer or amend the pretrial stipulation. The Court does not construe this condition issues in turn. al statem ent in defendant's memorandum as a motion. The memorandum in which 1. Approval O f D efendants' Labels B y The EPA the statem ent appears is not captioned to Plaintiff argues that the defendants have indicate that it is a motion to amend pursu not established that the EPA approved ant to Fed.R.Civ.P. 10(a), Fed.R.Civ.P. their labels. Apparently it is plaintiff's 7(b)(2), or Rule 1.05(b), Local Rules Of The position that absent such approval, the pre United States District Court For The Mid emption defense is not available to the de dle District Of Florida. Nor have the de fendants. Plaintiff specifically objects to fendants filed a memorandum of law in the defendants' introduction of the affida support of the motion to amend as required vits of individuals who do not have person by Rule 3.01(b), Local Rules Of The United al knowledge of whether or not the EPA States District Court For The Middle Dis approved of defendants' labels. trict Of Florida. Despite the awkward manner in which the defendants manifested their desire to amend their answers or the pretrial stipula tion, the Court will analyze whether or not plaintiff would be prejudiced by the Court's permitting defendants to raise the preemp tion defense at the present time. The Court notes that defendants' desire to amend their answers or the pretrial stipula The Court disagrees with plaintiff's im plicit assumption that the preemption de fense requires a showing that the EPA actually approved of defendants' labels. At most, such a showing would establish that the defendants violated federal regula tions concerning labeling. Such a showing would not negate the fact that Congress has expressly preempted state regulation of labeling through a specific expression to that effect by statute. The Court finds tion was fully discussed at the hearing on that various affidavits submitted by the this motion for summary judgment. The defendants to show th at the EPA approved issue was also fully briefed by the parties their labels are irrelevant to this proceed- subsequent to the hearing.6 counsel was unprepared to address ihc issue at i. The awkward manner in which the defendants raised the question of amendments of the plead ings and the pretrial stipulation explains plain tiffs counsel's initial failure to oppose defen dants' conditional motion to amend at oral ar gument. The Court assumes that plaintiffs that time. In his supplemental memorandum, after more careful examination of the aw. plaintiffs counsel voiced strenuous opposition to amendment of the pleadrinsg1s. / 33 O JL U i l * i' i ' ^ L U A b O U * i ing and have no bearing on this Court's finding of preemption. 2. N e c e s s a r y A n d A v a i l a b l e In fo rm a tio n The Court disagrees with plaintiff's ar gument that preemption requires defen dants to show that they have provided to the regulatory agency all the necessary and available information on which to base a warning. A showing that the EPA ap proved defendants' labels based on inade quate information would not negate a find ing that under the law of preemption, the EPA has the exclusive right to regulate those labels. A showing that the EPA based its decision on inadequate informa tion would be appropriate if, for example, the agency approval of defendants' labels were offered for its collateral estoppel ef fect. This Court's finding of preemption is not based on collateral estoppel or on the agency's approval of the defendants' la bels. The Court's finding of preemption in this case is based on the fact that Congress expressly preempted state law. If Con gress has taken away the ability of the states to regulate labels and assigned the regulation of labels to a federal agency, Congress has determined that such an as signment promotes the general welfare. Whether that federal regulatory agency carries out its function based on all avail able and necessary information is, there fore, irrelevant to a preemption inquiry. This Court cannot second guess the wisdom of that decision. A cause of action based on insufficient labeling would subvert the regulatory scheme for pesticide labeling. Such a cause of action would permit states to regulate labels In the guise of an action for damages and violate Congress's ex pressed mandate that state's should not regulate labels. 3. W h e t h e r A D a m a g e A w a r d C o n stitu te s R eg u la tio n Plaintiff argues that even if federal law has preempted state damage actions where a manufacturer would be caused to change its label, a damage award in this case would not cause the defendants to change their labeling. Plaintiff argues that the labels on defendants' pesticides have al ready been changed since the time of dece dent's exposure and would not be changed further. In addition, plaintiff argues that at least one of the defendants no longer manufacturers the product at issue in this case. This Court once again disagrees with plaintiff's understanding of the preemption defense. The statutory language and leg islative history shows Congress's clear in tention to preempt state law. Congress did not intend preemption to be decided on a case by case basis as plaintiff's argument would suggest. The Court found preemp tion based in part on a finding that a rea sonable manufacturer of pesticides would tend to change its label subsequent to a damage awarded against it by a jury. Once the Court determines that damage awards tend to cause reasonable manufac turers to change their labels, it is irrelevant whether or not the defendants in this case are reasonable or indeed whether or not they continue to manufacture the product at all. 4. D e f e n d a n t s H a v e N o t W a i v e d t h e P re e m p tio n D efense [8] Based on the foregoing analysis, the Court finds that plaintiff would not be prej udiced by defendants' assertion of the pre emption defense. The Court finds that the availability of the preemption defense in this case is a question of law, and that there are no factual issues on which plain tiff could conduct discovery that would al ter the Court's finding of preemption. Plaintiff has had adequate opportunity to conduct legal research, file legal memoran da, and present the Court with oral argu ment on the issue. The Court finds, there fore, that the defendants have not waived the preemption defense and have properly asserted the defense on this motion. The Court will, therefore, on this date file a pretrial order recognizing the defendants' right to assert the preemption defense. It is, therefore, unnecessary for the defen dants to file amended answers. E. E x p o s u r e T o P e s t i c i d e s P r i o r T o E n a ctm en t O f F IF R A [9] Plaintiff also argues that the pre emption defense should be unavailable to KENNAN v. DOW CHEMICAL CO. 811 Cite aa 717 F.Supp. 799 (M.D.Fla. 1989) the defendants in this case because it has Florida law recognizes that the defective alleged that the decedent was exposed to and unreasonably dangerous condition of a defendants' pesticides prior to the enact product can be established by showing that ment of FIFRA in 1972. It is well settled a product contained a manufacturing flaw, that a court must apply the law in effect at see M atter o f Standard Jury Instr. (Civil the time it renders its decision, unless the Cases), 435 So.2d 782, 782-83 n. * (citing award would cause a manifest injustice. Restatement (Second) of Torts, 402A, Bradley v. Richmond School Board, 416 comment k, (1965)), or by showing that a U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 product contained a design defect. Id. It L.Ed.2d 476 (1974). There is no indication appears that Florida courts have not spo that Congress intended 7 U.S.C. 137(b) to ken definitively as to whether or not a apply only to cases arising after the enact manufacturer's failure to warn can consti ment of the statute. The Court recognizes tute a ground for finding a product defec that this holding is a harsh result, however, tive and unreasonably dangerous. See id., the Court is bound by clear Congressional 435 So.2d at 783 n. '. intent. Furthermore, whether or not the This Court assumes without deciding decedent was exposed prior to 1972 does that Florida law would recognize that a not negate the fact that a jury award today manufacturer's failure to warn could at would constitute regulation by causing least under certain conditions render a manufacturers to change their labels. As product defective and unreasonably dan stated above, Congress has expressly gerous. Although this Court is aware that preempted such regulation by the states. other jurisdictions have found that a manu facturer's failure to warn can constitute an F. Defectiveness A nd Unreasonable Dangerousness Under Non-W arning Theories In Florida the elements of a cause of action for strict liability in tort are 1) the manufacturer's relationship to the product in question, 2) the defective and unreason ably dangerous condition of the product, and 3) the existence of the proximate caus al connection between such condition and the user's injuries or damages. West v. Caterpillar Tractor Company, Inc., 336 So.2d 80, 87 (Fla.1976). The elements of a cause of action in a negligence products liability case are 1) the existence of a duty on the part of the defendant to protect the plaintiff from injury or damage of which plaintiff complains, 2) the failure of the defendant to perform that duty, and 3) injury or damage to plaintiff proximately caused by such failure. Blackton B uild ing Supply Co. v. Garesche, 383 So.2d 250, 251 (Fla. 5th DCA 1980). In practice, the causes of action for strict liability in tort and negligence are similar, and both re quire proof that the defendant's product independent ground for finding a product to be defective and unreasonably danger ous, see 2 Am erican Law o f Products Lia bility 3d, Part 5, Chapter 17, 17:3, n. 9 (T.E. Travers ed. 1987), this Court's ruling should not be interpreted as any extension of Florida law on this issue. In light of the Court's conclusion that any cause of action based on the defendants' failure to warn is preempted, the existence of the cause of action in the first instance is immaterial to the Court's decision. The defendants argue that plaintiff's the ory for finding the products defective and unreasonably dangerous is based entirely on defendants' failure to warn and not on defective design or manufacturing flaw. Plaintiff argues that even if the Court finds that defendants' PCP containing products cannot be found to be defective and unreasonably dangerous based on de fendants' failure to warn, the products can be found defective and unreasonably dan gerous on a theory that the products con tained a design defect or a manufacturing flaw. was defective and unreasonably dangerous. [10] The Court finds that plaintiff's the See Witt v. Norfe, Inc., 725 F.2d 1277-79 ory for finding the products defective and (11th Cir.1984). unreasonably dangerous is not based exclu- 812* 717 FEDERAL SUPPLEMENT sively on defendants' failure to warn, but on a theory that products containing PCP have design defects and/or manufacturing flaws. See Amended Complaint 11118(b), 8(c), 12(b), and 12(c). The Court will, there fore, grant defendant's motion for summa ry judgment only ,in part. To the extent that plaintiff's claims are based on the de fective and unreasonably dangerous condi tion of defendants' products due to defen dant's failure to warn, plaintiff's claims are preempted as a matter of law. To the extent that plaintiff's claims are otherwise based on the defectiveness or unreasonable dangerousness of defendants' product on theories of defective design or manufactur ing flaw, the motion for summary judg ment is denied.' The defendants also argue that even if their products are found to be defective and unreasonably dangerous, that they cannot he found liable under Werner v. Upjohn Co.. 628 F.2d 848 (4th Cir.1980), cert. dented. 449 U.S. 1080, 101 S.Ct. 862, 66 L.Ed.2d 804 (1981). The Court finds W emer v. Upjohn Co., 628 F.2d 848 (4th Cir.1980), cert, denied, 449 U.S. 1080, 101 S.Ct. 862, 66 L.Ed.2d 804 (1981) distinguish able from this case. W emer found pursu ant to Restatement (Second) of Torts 402A, comment k, (1965), that a drug manufacturer is not to be held strictly lia ble for injuries caused by an unavoidably dangerous new drug if the warning is ade quate. The Court finds that comment k deals expressly with new drugs whose pro duction is justified for their life saving characteristics. The defendants have not demonstrated that their products, like life saving drugs, are "unavoidably" danger ous. Furthermore, even if the defendants' products were found to be unavoidably dangerous, the defendants have not demon strated that the defense of unavoidable dangerousness under comment k has not been preempted by FI FRA. Because the defense of unavoidable dangerousness un der comment k requires that the defen dants demonstrate that their warnings were adequate, such a defense could be found to constitute regulation of warning labels by state law, and would, therefore, be preempted by FIFRA. This Court states no view at this time as to whether or not the defense of unavoidable dangerous ness has been preempted. This Court stresses that this opinion does not address any issue not raised and briefed by the parties. In particular, the parties have not addressed the question whether or not the defendants can assert their warnings as a defense to paintiff's remaining claims, or whether or not the assertion of a defense of warning is preempted by FIFRA. Accordingly, it is ORDERED: 1. That Reichold Chemicals, Inc.'s Mo tion For Summary Judgment, filed on Octo ber 21, 1988, and subsequently adopted by the other defendants, is granted in part and denied in part. 2. That to the extent that plaintiff's claims are based on the defective and un reasonably dangerous condition of defen dants' products due to defendant's failure to warn, plaintiff's claims are preempted as a matter of law. 3. That to the extent that plaintiff's claims are otherwise based on the defec tiveness or unreasonable dangerousness of defendants' product on theories of defec tive design or manufacturing flaw, the mo tion for summary judgment is denied. 4. That the Court's Opinion and Order, filed January 25, 1989, is hereby vacated. DONE AND ORDERED. John MADERA, Plaintiff, v. Daryl HALL, Defendant. No. 88-0914-Civ. United States District Court, S.D. Florida. July 11, 1989. Musician brought action against anoth er musician for libel in connection with c. operly ^consti-, as cor le Mismrt of y hold ', must e post- concluviction under 'Winter irai ha ie trilowisely a postth the :rilogy" <nd ad one anding" ners to motion, nded to ;r crimiality of constituMissouri mber of and the federal jrant ha; federal Court of its 1967 acurately n between jostconvicrule 27.26 ideral-state lforcement ily had asprotecting dance with ' dll might ctensive >vith few jdation un. Missouri nstitutional FISHER V. CHEVRON CHEMICAL CO. Cite a 716 RSupp. 1: 3 (W.D.Mo. 1989) 1283 APPENDIX D--Continued his article. That case afforded an ideal summarized by Professor Anderson's arti cle, were consistent with the following statement made by Justice Brennan in:his concurring opinion in Case v. Nebraska: The desirability of minimizing the neces sity for resort by state prisoners to fed eral habeas corpus is not to be denied. Our federal system entrusts the States with primary responsibility for the ad ministration of their criminal laws. The Fourteenth Amendment and the Su premacy Clause make requirements of fair and just procedures an integral part of those laws, and state procedures should ideally include adequate adminis,tration of these guarantees as well. If, by effective corrective processes, the States assumed this burden, the exhaus tion requirement of 28 U.S.C. 2254 (1958 ed.) would clearly promote state primacy in the implementation of these guarantees..... Greater finality would inevitably attach to state court determi nations of federal constitutional ques tions, because further evidentiary hear ings on federal habeas corpus would, if the conditions of Tovmsend v. Sain were met, prove unnecessary. 381 U.S. at 344-45, 85 S.Ct at 1491-92. V. Professor Anderson's review of the first five years of Missouri's experience with Amended Rule 27.26, however, did not take into account the fact that the Supreme Court of Missouri, as illustrated by State v. Moreland, had earlier failed to construe and apply Rule 27.26 in its 1952 form in the manner that the model for that rule, 28 U.S.C. 2255, had been consistently con strued and applied by the federal courts and by other,States that also took the federal statute as their model. State v. Moreland simply failed to make clear that a State habeas corpus proceeding was not a supplemental State corrective process that was available for the hearing and determi nation of a state prisoner's postconviction claims. Wiglesworth v. Wyrick had not been de cided at the time Professor Anderson wrote opportunity for the Supreme Court of Mis souri to clearly and firmly decide that Amended Rule 27.26 was Missouri's exclu sive State corrective process. For that case directly presented the question of whether the promulgation of Rule 27.26 violated Art. 1, 12 of the Missouri Consti tution which prohibited the suspension of the writ of habeas corpus. This Court's need for further information is underlined by the manner in which the Supreme Court of Missouri has consistent ly indicated that a State habeas corpus proceeding has always been available as a supplemental State corrective process in spite of the construction and application that other courts have given 28 U.S.C. 2255 and other State postconviction pro cedures that have been modeled on the federal statute. The repeal of Rule 27.26 could be said to have done no more than leave a State habeas corpus proceeding as Missouri's sole and exclusive State correc tive process. The orders that will be entered will seek appropriate information from the Attorney General of Missouri before we reach the important questions that have been dis cussed in this memorandum opinion and the appendices that are attached thereto. Joe W. (Billy) FISHER, et al,, Plaintiffs, CHEVRON CHEMICAL COMPANY, et al., Defendants. No. 88-4489-CV-C-9. United States District Court, W.D. Missouri, C.D. July 7, 1989. Farmers brought action against manu facturer distributor and alleged successors 935 questions on their merits. In most instances, Missouri courts have properly applied federal law to Missouri findings o f fact; over a five-year period, federal courts have granted habeas cor- pus relief in only eight cases that the Missouri courts had previously decided." Id. at 43. (Footnotes omitted). D" I 1284 716 FEDERAL SUPPLEMENT of seller of herbicide, alleging that adjacent farmland was aerially sprayed with herbi cide and that herbicide drifted onto farm ers' land causing personal injury and prop erty damage. On motion to dismiss by alleged successors in liability to seller, the District Court, Bartlett, J., held that: (1) complaint would not be dismissed or stayed pursuant to federal civil rule authorizing court to order payment of costs of previ ously dismissed action and stay current proceedings until compliance; (2) Federal Insecticide, Fungicide, and Rodenticide Act preempted state common-law claims for failure to adequately warn; but (3) FIFRA did not preempt state common-law claims alleging that herbicide was sold in unrea sonably dangerous defective condition and that farmers were damaged as direct result of defendants participating in aerial spray ing, characterized as inherently or abnor mally dangerous activity rendering defen dants strictly liable for farmers' damages. Motion granted in part and denied in part. 1. Federal Civil Procedure =>2748 Federal complaint filed after previous ly filed state case had been voluntarily dismissed would not be stayed pursuant to federal civil rule authorizing court to order payment of costs of previously dismissed action and stay proceedings until compli ance, where defendants presented no de tails to support their requests such as amount of costs at issue or whether plain tiffs had received cost bill from state court, and plaintiffs stated they did not receive cost bill from state court until after defen dants' motion was filed. Fed.Rules Civ. Proc.Rule 41(d), 28 U.S.C.A. 2. Federal Civil Procedure =1741 Federal civil rule authorizing court to order payment of costs for previously dis missed action which included same claim as currently asserted against same defendant and stay proceedings until compliance did not authorize dismissal of case. Fed.Rules Civ.Proc.Rule 41(d), 28 U.S.C.A. 3. Agriculture =>9.13 States =>18.65 Federal Insecticide, Fungicide, and Ro denticide Act did not expressly preempt state'common-law tort claims arising from allegedly inadequate labels and warnings. Federal Insecticide, Fungicide, and Roden ticide Act, 24(b), as amended, 7 U.S.C.A. 136v(b). 4. Agriculture =9.13 States <*=18.65 Congress did not intend to preempt all state common-law claims for damages from sale and use of pesticides through the Fed eral Insecticide, Fungicide, and Rodenticide Act. ! Federal Insecticide, Fungicide, and Rodenticide Act, 24(a, b), as amended, 7 U.S.C.A. 136v(a, b). 5. Agriculture =>9.13 States =18.65 Federal Insecticide, Fungicide, and Ro denticide Act impliedly preempted state common-law claims arising from failure to adequately warn regarding herbicide. Fed eral Insecticide, Fungicide, and Rodenticide Act, 24(a, b), as amended, 7 U.S.C.A. 136v(a, b). 6. Agriculture =9.13 States =18.65 Federal Insecticide, Fungicide, and Ro denticide Act did not preempt state com mon-law claims alleging that herbicide was sold by manufacturer distributor in unrea sonably dangerous defective condition and that farmers were damaged as direct result of participation by manufacturer distribu tor and successors of seller of herbicide in aerial spraying of adjacent farmland with herbicide, characterized as inherently or ab normally dangerous activity rendering de fendants strictly liable for farmers' dam ages. Federal Insecticide, Fungicide, and Rodenticide Act, 24(a, b), as amended, 7 U.S.C.A. 136v(a, b). Louis J. Leonatti and Jerome W. Seigfreid, Seigfreid, Runge, Leonatti & Pohlmeyer, Mexico, Mo., for plaintiffs. Fairfax Jones, Biggs & Hensley, P.C., Clayton, Mo., for Chevron Chemical Co. 936 Fungicide, and Roexpressly preempt laims arising from iels and warnings, gicide, and Rodennended, 7 U.S.C.A. end to preempt all for damages from 3 through the Fede, and Rodenticide e, Fungicide, and b), as amended, 7 angicide, and Ropreempted state lg from failure to lg herbicide. Fede, and Rodenticide :nded, 7 U.S.C.A. ia Aingicide, and Roeempt state com.hat herbicide was ;tributor in unreative condition and ed as direct result .facturer distribu!er of herbicide in nt farmland with 3inherently or abity rendering deor farmers' dam3, Fungicide, and o), as amended, 7 ome W. SeigLeonatti & Pohlplaintiffs. k Hensley, P.C., on Chemical Co. FISHER y. CHEVRON CHEMICAL CO. Cite u 716 F-Supp. 1283 (WJUUo. 1989) 1285 Thomas B. Alleman and Millie M. Dono- ty; and 6) Chevron failed to warn or take hoe, Niewald, Waldeck, Norris & Brown, precautions to prevent Praquat "from be Kansas City, Mo., for Estech, Inc. and Bea ing used as an aerial spray or warn against trice Foods, Inc. its use on congested or inappropriate areas ORDER GRANTING IN PART AND DE NYING IN PART DEFENDANTS ES TECH AND BEATRICE FOODS' NO VEMBER 21, 1988, MOTION TO DIS MISS or at inappropriate times and in inappropri ate weather conditions.'' Complaint at 5-7. Plaintiffs previously filed this case as No. CV 682-23CC in the Circuit Court of Monroe County, Missouri, and voluntarily dismissed it on November 4, 1987. The BARTLETT, District Judge. case was refiled within one year as autho On October 27, 1988, plaintiffs Joe and rized by the appropriate statute of limita Susan Fisher filed a complaint against de tions, Mo.Rev.Stat. 516.230. fendants Chevron Chemical Company On November 22, 1988, Chevron filed an (Chevron), Estech, Inc. (Estech) and Bea answer. On November 21, 1988, Estech trice Foods, Inc. (Beatrice). Plaintiffs, who and Beatrice filed a motion to dismiss on are farmers, allege that a neighbor who the grounds that: 1) plaintiffs failed to pay owns farmland adjacent to their land hired costs as is proper under Rule 41(d), Federal a spray plane to spray his crops and that Rules of Civil Procedure, when the circuit the herbicide spray which contained the court case was previously dismissed; and chemical Paraquat drifted onto plaintiffs' 2) plaintiffs' state common law tort actions land causing personal injury and property are preempted by the Federal Insecticide, damage. Plaintiffs allege that Chevron Fungicide and Rodenticide Act (FIFRA), 7 manufactured, distributed and sold the Pa U.S.C. 136, et seq. raquat that injured plaintiffs. They allege that Estech acquired (and is therefore an swerable for the liability of) Shelby-Macon Fertilizer Company which sold and distrib uted Paraquat. Plaintiffs assert that Bea trice thereafter assumed the liabilities of Estech. Neither the neighbor nor the spray plane company are parties to this case. Jurisdiction is based solely on diver sity. Plaintiffs assert that defendants are lia ble under "one or all of the following theo ries:'' 1) Chevron sold the Paraquat in a defective condition, unreasonably danger ous when put to a reasonably anticipated use; 2) Chevron failed to give an adequate warning of the dangers of Paraquat; 3) Chevron furnished Paraquat to Shelby-Ma con for resale without warning Shelby-Ma con or plaintiffs of the dangerous condition of the Paraquat; 4) Chevron sold Paraquat On December 2, 1988, plaintiffs filed op position to the motion to dismiss arguing that 1) Rule 41(d) does not permit me to dismiss an action for failure to pay costs of a previous action and 2) plaintiffs' state common law claims are not preempted or, alternatively, are not all preempted. I. Plaintiffs' Complaint Will Not be Dismissed or Stayed Under Rule 41(d) [1,2] Rule 41(d) provides: If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plain tiff has complied with the order. to Shelby-Macon which sold it to plaintiffs' Defendants argue that on this basis neighbor who arranged to have it applied plaintiffs' complaint should be dismissed or to his land and defendants failed to warn stayed. Defendants. do not present any plaintiffs of the dangers posed by Para details to support their request such as the quat; 5) Chevron is strictly liable for dam amount of costs at issue or whether plain ages caused by aerial spraying which is an tiffs have, in fact, received a cost bill from inherently or abnormally dangerous activi the circuit court. Plaintiffs state they did 937 0^ `ik'b 1286 716 FEDERAL SUPPLEMENT ! ! not receive a cost bill from the circuit court edly) displace state law or state law con until after defendants' motion was filed. cepts in enacting federal law. Palmer v. Because defendants have not presented an adequate factual basis upon which to apply Rule 41(d) and because I am per suaded that Rule 41(d) does not authorize me to dismiss the case, I decline to either stay or dismiss this case. Liggett Group, Inc., 825 F.2d 620, 625-26 (1st Cir.1987). The burden of demonstrat ing preemption falls upon defendants. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255, 104 S.Ct 615, 625, 78 L.E<L2d 443 (1984). II. Plaintiffs' Common Law Claims In FIFRA, Congress has provided a com Based Upon Failure to Warn or In prehensive system for the registration and adequate Warning Are Preempted labeling of pesticides. The parties agree In the seminal case of Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210-11, 6 L.Ed. 23 (1824), the Supreme Court ruled that the Supremacy Clause, U.S. Const. Art. VI, gives Congress authority to legislate in preemption of state law. In Louisiana Public Service Commission v. Federal Communications Commission, 476 U.S. 355, 368-69, 106 S.Ct. 1890, 1898-99, 90 L.Ed.2d 369, 381-82 (1986), the Court sum marized the principles of preemption: Pre-emption occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, Jones v. Rath Packing Co., 430 U.S. 519, 51 that Paraquat is subject to the regulatory provisions of FIFRA. Under FIFRA, the Environmental Protection Agency (EPA) is directed to register a pesticide if the EPA determines that "it will perform its intend ed function without unreasonable adverse effects on the environment." 7 U.S.C. 136a(c)(5)(C). When a pesticide is reg istered, the manufacturer must submit the proposed label to the EPA for approval. The label must be "adequate to protect health and the environment," see 7 U.S.C. 136(q)(l)(G), and "likely to be read and understood__ " See 7 U.S.C. 136(q)(l)(E). L.Ed.2d 604, 97 S.Ct. 1305 (1977), when Congress has expressly stated its intent there is outright or actual conflict be to preempt any state labeling or packaging tween federal and state law, e.g., Free v. requirements different from or additional Bland, 369 U.S. 663, 8 L.Ed.2d 180, 82 to those mandated by FIFRA. (However, S.Ct. 1089 (1962), where compliance with Congress has allowed states to have a both federal and state law is in effect greater role in regulating the sale and use physically impossible, Florida Lime & of pesticides.) Avocado Growers, Inc. v. Paul, 373 U.S. (a) A State may regulate the sale or use 132, 10 L.Ed.2d 248, 83 S.Ct. 1210 (1963), of any federally registered pesticide or where there is implicit in federal law a device in the State, but only if and to the barrier to state regulation, Shaw v. Del extent the regulation does not permit any ta Air Lines, Inc., 463 U.S. 85, 77 sale or use prohibited by this subchapter. L.Ed.2d 490, 103 S.Ct 2890 (1983), where (b) Such State shall not impose or contin Congress has legislated comprehensively, ue in effect any requirements for label thus occupying an entire field of regula ing or packaging in addition to or differ tion and leaving no room for the States ent from those required under this sub to supplement federal law, Rice v. Santa chapter. Fe Elevator Corp., 331 U.S. 218, 91 7 U.S.C. 136v(a), (b). L.Ed. 1447, 67 S.Ct 1146 (1947), or where the state law stands as an obstacle to the A. Express Preemption accomplishment and execution of the full [3] Although 136v(b) shows express objectives of Congress. Hines v. Davi- congressional intent to preempt state label dowitz, 312 U.S. 52, 85 L.Ed. 581, 61 ing regulations, it does not expressly evi S.Ct. 399 (1941). dence intent to preempt state common law The gist of preemption is whether Con tort claims arising from allegedly inade gress did (expressly) or meant to (impli quate labels and warnings. In reaching this conclusio sumption agj la n d v. Louis 2114, 2129, 68 Congress's U state common it has in othe Where ther the Supreme ( of implied pre er a federal state ' commoj Silkw ood v. ] 238, 104 S.Ct. Chicago & No Co. v. K alo Bi 101 S.Ct 112^ B. } 1. FIFRA Di E ncom pa R ela tio n s: Damages [4] Applyir preemption, th gress intended ing to pesticid their use to th law actions ba; Cipollone v. L 181, 186 (3rd analysis in tob Congress inten lation of label not intend to pj claims for dam of pesticides. ; rizing states to pesticides mor law. Therefore, th is not "so pervc "so dominant" to preempt all 1. Exam ples o f i explicitly preeir dies include 12 18(e) (Supp.198' national Recovc 17 U.S.C. 3 0 f 29 U.S.C. 114<] tirement Incom Just as Congr ence to preemj 938 ^^5S8ISi5aii3B |0 - iW conimer v. 625-26 mstratts. See 64 U.S. l.2d 443 " il 1a comion and 3 agree ;ulatory RA, the EPA) is he EPA intendadverse U.S.C. is regnit the ^roval. protect 7 U.S.C. ead and U.S.C. ts intent ickaging dditional lowever, have a and use le or use sticide or nd to the irmit any bchapter. or continfor labelor differthis sub- . express cate labelessly evinmon law lly inade- reaching FISHER V. CHEVRON CHEMICAL CO. 1287 Cite u 716 FJSupp. 1283 (WJUVlo. 1989) this conclusion, I rely on the general pre erts v. Dow Chemical Co., 702 F.Supp. 195, sumption against preemption {see Mary 199 (N.D.I11.1988). land v. Louisiana, 451 U.S. 725, 101 S.Ct. 2. Missouri Common Law Failure to 2114, 2129, 68 L.Ed.2d 576 (1981)) and also Warn Claims Conflict With the Congress's failure to refer specifically to Purposes of FIFRA state common law remedies in 136v(b) as it has in other statutes.1 [5] The second issue to be addressed in the implied preemption analysis is the ex Where there is no express preemption, the Supreme Court has turned to principles of implied preemption in evaluating wheth er a federal statutory scheme preempts state common law remedies. See, e.g., Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct 615, 78 L.Ed.2d 443 (1984); Chicago & North Western Transportation Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981). tent to which plaintiffs' state law claims "actually conflict" with FIFRA. See Ci pollone, 789 F.2d at 186-87; Fitzgerald v. Mallinckrodt, Inc., 681 F.Supp. 404, 40607 (E.D.Mich.1987). In order to determine whether a conflict exists between state and federal law, I must examine first the pur pose of the federal law and, second, the effect of the operation of the state law on these purposes. Cipollone, 789 F.2d at B. Implied Preemption 187. 1. FIFRA Does Not "Occupy the Field'' The principle purpose of FIFRA is to Encompassing Every Aspect of the protect consumers by keeping unhealthy or Relationship Between Pesticides and unsafe pesticides off the market and by Damages Arising From Their Use preventing deceptive labeling. See Nation [4] Applying the principles of implied al Agricultural Chemicals Ass'n v. Rompreemption, the first issue is whether Con inger, 500 F.Supp. 465, 470 (E.D.Cal.1980), gress intended "to occupy the field" relat citing Florida Lime, 83 S.Ct at 1219. ing to pesticides and injuries arising from Congress sought to achieve this goal by their use to the exclusion of state common regulating the sale, use and labeling of law actions based on failure to warn. See pesticides. As to FIFRA's labeling provi Cipollone v. Liggett Group, Inc., 789 F.2d sions, Congress has stated in 136v(b) that 181, 186 (3rd Cir.1986) (applying similar its goals will be undermined by state law analysis in tobacco litigation). In FIFRA, requirements which add to or differ from Congress intended to occupy a field (regu federal labeling regulations. lation of labeling). However, Congress did not intend to preempt all state common law claims for damages from the sale and use of pesticides. See 7 U.S.C. 136v(a) autho rizing states to regulate the sale and use of pesticides more stringently than federal law. In arguing that the state common law remedies they seek to use in the case do not interfere with the federal purpose be hind FIFRA, plaintiffs rely on Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C.Cir.1984), cert denied, 469 U.S. 1062, 105 S.Ct 545, 83 L.Ed.2d 432 (1985). Therefore, the scheme created by FIFRA is not "so pervasive" or the federal interest "so dominant" as to demonstrate an intent to preempt all state law claims. See Rob- There, the court although recognizing that "FIFRA does not allow states directly to impose additional labeling requirements," still allowed plaintiff to assert state tort 1. Examples o f statutes that include a provision explicitly preempting state common law reme dies include 12 U.S.C. 1715z-17(a), 1715z18(e) (Supp.1989) (Domestic Housing and Inter national Recovery and Financial Stability Act); 17 U.S.C. 301(a) (Copyright Act o f 1976) and 29 U.S.C. 1144(a), (c)(1) (1982) (Employee Re tirement Incom e Security Act). Just as Congress could have included a refer ence to preemption of state common law in 136v(b), it could also have included a "savings clause" explicitly preserving the continued vital ity of com mon law such as that in the Occupa tional Safety and Health Act of 1970, 29 U.S.C. 653(b)(4) (1982). Thus, lack of reference to 939 preemption o f state com m on law in fl 136v(b) is significant only because o f the presumption \J - against preemption. : j. I : V|i ! Vt 1288 716 FEDERAL SUPPLEMENT claims for injuries arising from inadequate labeling of a pesticide. The court reasoned that FIFRA was "regulatory" while the state tort remedies at issue were "compen satory." The verdict itself [compensating plaintiff for injuries resulting from a defective label] does not command Chevron to al ter its label--the verdict merely tells Chevron that, if it chooses to continue selling paraquat in Maryland, it may have to compensate for some of the re sulting injuries. That may in some sense impose a burden on the sale of paraquat in Maryland, but it is not equivalent to a direct regulatory command that Chevron change its label. Chevron can comply with both federal and state law by con tinuing to use the EPA-approved label and by simultaneously paying damages to successful tort plaintiffs such as Mr. Ferebee. We ... hold that, if a state chooses to restrict pesticide use by requiring that the manufacturer compensate for all in juries or for some of these injuries re sulting from the use of a pesticide, feder al laws stand as no barrier__ As a result, Maryland is entitled to control the use of paraquat for compensatory aims by holding Chevron liable for injuries that could have been prevented by a more adequate label. Ferebee, 736 F.2d at 1541 (emphasis in orig inal). See also Roberts v. Dow Chemical Co., 702 F.Supp. 195 (N.D.I11.1988) (adopt ing reasoning and result of Ferebee). Defendants rely on Fitzgerald v. Mallinckrodt, Inc., 681 F.Supp. 404 (E.D.Mich. 1987) where the court examined FIFRA and held that plaintiffs state law claims based on negligent labeling and failure to warn were preempted. The court there specifically rejected the reasoning of Fere bee and adopted the reasoning of Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir. 1987), a cigarette warning case. The Fitzgerald court quoted extensively from Palmer: The preemption clause of the [Federal Cigarette Labeling and Advertising] Act expressly prohibits "state law" not mere ly "statutory law" from imposing any "requirement or prohibition" different from the Act's warning label. 15 U.S.C. 1334. If a manufacturer's warning that complies with the Act is found inadequate under a state tort theory, the damages awarded and verdict ren dered against it can be viewed as state regulation: the decision effectively compels the manufacturer to alter its warning to conform to different state law requirements as "promulgated" by a jury's findings__ This challenge to the federal warning label's sufficiency-- and the confusion it would engender-- surely contravenes the Act's policy of uniform labeling. The District Court held that an award of damages "would have only an indirect effect on defendant's labeling and adver tising practices." [Palmer v. Liggett Group, Inc.,] 633 F.Supp. [1171] at 1177 [(1986)]. The Palmers disingenuously maintain that any monetary damages awarded would not compel a manufactur er to change its label for, after all, "the choice of how to react is left to the manufacturer." This "choice of reac tion" seems akin to the free choice of coming up for air after being underwa ter. Once a jury has found a label inadequate under state law, and the manufacturer liable for damages for negligently employing it, it is unthink able that any manufacturer would not immediately take steps to minimize its exposure to continued liability. The most obvious change it can take, of course, is to change its label. Effecting such a change in the manufacturer's be havior and imposing such additional warning requirements is the very action preempted by 1334 of the Act Indeed, it arrogates to a single jury the regula tory power explicitly denied to allfifty states' legislative bodies. Fitzgerald, 681 F.Supp. at 407, quoting Palmer, 825 F.2d at 627-28 (emphasis add ed by Fitzgerald court). Adopting the reasoning of Palmer, the Fitzgerald court concluded: te law" not mere>m imposing any ibition" different label. 15 U.S.C. zturer's warning ie Act is found late tort theory, and verdict rens viewed as state ision effectively urer to alter its o different state promulgated" by This challenge to id's sufficiency-- /ould engender-- ; Act's policy of that an award of only an indirect 'eling and adver*mer v. Liggett pp. [1171] at 1177 :s disingenuously onetary damages ipel a manufactur er, after all, "the ct is left to the "choice of reac he free choice of :r being underwais found a label ite law, and the for damages for ' it, it is unthinkcturer would not is to minimize its d liability. The it can take, of s label. Effecting nanufacturer's besuch additional is the very action f the Act. Indeed, e jury the reguladenied to all fifty ies. .t 407, quoting -28 (emphasis add- g of Palmer, the led: SIERRA CLUB v. LUJAN Cite as 716 F.Supp. 1289 (DAriz. 1989) 1289 FIFRA expressly provides that no state are strictly liable" for plaintiffs' damages. may impose "any requirement for label Neither party addresses whether these ing or packaging in addition to or dif claims are preempted. ferent from those required under this Act" 7 U.S.C. 136vfl>) (emphasis add' ed). As the Palmer court noted, any state law tort recovery based on a failure to warn theory, would abrogate Con gress' intent to provide uniform regulations governing the labeling of pesti, cides. Fitzgerald, 681 F.Supp. at 407. In 24(a), FIFRA specifically allows a state to "regulate the sale or use of any federally registered pesticide__ " (Em phasis added.) Given this provision, I do not see a conflict between the purpose of FIFRA and the operation of plaintiffs' two remaining state common law theories. Be cause I previously concluded that FIFRA does not evidence congressional intent to The Fitzgerald court's reasoning is per "occupy the field" relating to pesticides suasive while Ferebee seems to be justify and injuries arising from their use, plain ing weakly a result. In Roberts v. Dow tiffs' two remaining common law claims 1Chemical Co., 702 F.Supp. 195, 198 (N.D. are not preempted. 111.1988), the court criticized Fitzgerald for applying the reasoning of Palmer v. Lig gett Group, Inc., 825 F.2d 620 (1st Cir. 1987), a cigarette labeling case, to a FIFRA .case. In the Federal Cigarette Labeling :and Advertising Act, 15 U.S.C. 1331, et -seq., Congress prescribes the exact warn ing label to be placed on every package of cigarettes. In FIFRA, Congress permits each manufacturer to draft a warning label Accordingly, it is hereby ORDERED that: 1) defendants Estech and Beatrice's No vember 21, 1988, motion to dismiss 1114(b), (c), (d) and (f) of plaintiffs' complaint is granted; and 2) defendants' Estech and Beatrice's No vember 21, 1988, motion to dismiss 1114(a) and (e) of plaintiffs' complaint is denied. for each product for EPA approval. How ever, this is a distinction without signifi cance; both acts expressly prohibit states = KEY NUMBER SYSTEM from regulating any aspect of labeling. Allowing common law claims for failure to warn would conflict with Congress' express provision in 7 U.S.C. 136v(b) that the states "shall not impose ... any require ments for labeling__ " Therefore, plain The SIERRA CLUB, Plaintiff, tiffs' common law claims for failure to v. adequately warn (complaint 1114(b), (c), (d), (f)) are preempted because they conflict .with FIFRA. Manuel LUJAN, et al., Defendants. No. Civ. 89-979 PCT PGR. III. Plaintiffs' Common Law Claims Not Based Upon Failure to Warn or Inadequate Warning Are Not Preempted United States District Court, D. Arizona. July 7, 1989. [6] In addition to their failure to warn claims, plaintiffs claim that 1) the Paraquat Upon environmental group's motion when sold by Chevron "was in a defective for a preliminary injunction restraining 94 1condition, unreasonably dangerous when construction of hotel and restaurant com put to its reasonably anticipated use," and plex on north rim of Grand Canyon and 2) "plaintiffs were damaged as a direct result of defendants' participating in [aerial upon various other pretrial motions, the District Court, Rosenblatt, J., held that con V '% 7 .spraying which is an] inherently or abnor tractor was preliminarily enjoined from be mally dangerous activity and defendants ginning construction of a hotel and restau- 742 667 FEDERAL SUPPLEMENT necessary both to rebut any m istaken im pression created by plaintiff's partial sub missions from the same set of documents, and to dispel the possibility of improper conduct in the administrative proceedings. Id. a t 1342. No comparable considerations were present in the case a t bar. Similarly, in S u lliv a n v. Veterans A d m inistration, 617 F.Supp. 258, 262 (D.D.C. 1985), the court found th a t the Veterans Adm inistration had not acted intentionally and willfully in releasing an investigative rep o rt where the VA had attem pted to re dact the personally identifiable references to plaintiff, and the VA had "carefully con sidered plaintiff's privacy interest before releasing such re p o rt" Id. The government has argued that where records are released in accordance with internal regulations and procedures, a find ing of willfulness may not be made. Bruce, supra, 621 F.2d a t 917. However, Bruce is distinguishable from the case at bar. In that case, records were released pursuant to a subpoena, and the court found that because the courts had not yet determined that a subpoena was not a court order for the purposes of 552a(g)(ll), the decision to release the records pursuant to subpoena could not be considered an intentional or willful viola tion of the Act. In the case a t bar, the 1G did n ot attem pt to procure a court order under 552a(b)(7). Moreover, agency regulations do not in all instances shield it from liability under the Privacy Act. An agency cannot promul gate regulations which ignore the dictates of the Privacy A c t Wisdom v. D epart m ent o f H ousing Urban Dev., 713 F.2d 422, 424 (8th Cir.1983). In Wisdom, the Eighth Circuit found th a t HUD's reliance on regulations was not a willful violation of the Act where the Act was still relatively new; the particular reg ulations never had been challenged; and HUD's conduct was not "so patently egre gious and unlawful th at anyone applying (the regulations) should have known they were unlawful." Id. a t 424-25. ity Division, Office of Safeguards and Se curity, permitting disclosure of protected records "in connection with official investi gative m atters based upon an investiga tor's verbal request," would circumvent the Privacy Act, and the IG Special Agents could not reasonably have relied on it. In the circumstances before the court, the IG Special A gents intentionally and willfully disclosed the Personnel Security Questionnaires, P art I, to the Assistant United States Attorney, and information therefrom to the Grand Jury. Their failure to avail themselves of the well-established procedures under the Privacy Act, i.e., 552a(b)(7) and 552a(b)(ll), amounted to a flagrant disregard for plaintiffs' rights under the Privacy Act. Furthermore, the record dem onstrates th a t the Special Agents had no reasonable basis upon which to consider their conduct lawful. Accordingly, the court concludes that the disclosure of plaintiffs' personnel security questionnaires to the Departm ent of Jus tice was not justified by the "routine use" exception of 5 U.S.C. 552a(b)(3), b ut was a violation of the Privacy Act, actionable under 552a(g). The IG Special Agents acted intentionally and willfully in those disclosures, and their conduct proximately caused the damages to which the parties have stipulated. Plaintiffs are each entitled to the stipu lated sum of $3,000 incurred in defense of the criminal prosecutions in the United States District Court, and for costs of this action, together with reasonable attorney fees. Plaintiffs' counsel have submitted Affidavits in Support of Motion for Costs and Reasonable A ttorney's Fee (Ct.Rec. 25, Ct.Rec. 26). D efendant will file and serve, no later than 20 days from the date of entry of these Findings of Fact and Conclu sions of Law, any objections to the amount and reasonableness of said fees. IT IS SO ORDERED. By contrast, the F ebruary 23, 1983 Mem orandum from the director of DOE's Secur MACGILLIVRAY v. LEDERLE LABORATORIES CUe u 667 F.Supp. 743 (D.N.M. 1987) 743 4. D rugs an d N arcotics cs=>18 H eather MacGILLIVRAY, an infant, S tates =18.65 Lynnette MacGillivray, individually and as m other and next friend of H eath er M acGillivray, and W alter C. MacGillivray, individually and as fa ther and next friend of Heather M acGillivray, Plaintiffs, Comprehensive federal regulations for marketing and design of prescription drugs, biological products, and pertussis vaccine did not preem pt New Mexico, strict products liability law for defective design of vaccine; availability of to rt remedies to v. LEDERLE LABORATORIES DIVISION, AMERICAN CYANIMID COMPANY, a foreign corporation, Defendant. compensate for personal injuries was tradi tionally state m atter; state law damage claim would not frustrate federal objec tives; and intent to exempt manufacturers from state law to rt liability was not implicit Civ. No. 85-0422-JB. in regulatory scheme. Public Health Ser United States District Court, D. New Mexico. vice Act, 214 e t seq., 42 U.S.C.A. 215 et seq.; Federal Food, Drug, and Cosmetic Act, 1 e t seq., 21 U.S.C.A. 301 et seq.; Feb. 5, 1987. National Childhood Vaccine Injury Act of 1986, 323, 42 U.S.C.A. 800aa-l note; Vaccinated child brought products lia bility action against m anufacturer of per tussis vaccine. M anufacturer moved for partial summary judgm ent The District Court, Burciaga, J., held th at comprehen sive federal regulations in area of m arket U.S.C.A. C o n st A r t 6, cl. 2. 5. S tates =>18.9 Comprehensiveness of federal regula tions alone does not provide basis for infer ring intent to preem pt state law. U.S.C.A. Const. A rt. 6, cl. 2. ing and design did not preem pt strict prod ucts liability law on defective design of pertussis vaccine. Motion denied.123 6. S tates =18.11 When focus of preemption inquiry is on field which is traditionally defined by s ta te law, fu rth er hesitation in concluding in ten t to preem pt is w arranted. U.S.C.A. 1. S tates =18.3 Const. A rt. 6, cl. 2. Preemption of state law may be ex press or m ay arise by implication. U.S. C.A. Const. A rt. 6, cl. 2. Rodey, Dickason, Sloan, Akin & Robb, Bruce Hall, Albuquerque, N.M., for plain 2. S tates =18.11 tiffs. W here express intent to preem pt is lacking, there is strong presumption that Congress does not intend to displace Btate law, b u t presum ption may be overcome in Montgomery & Andrews, Deborah J. Van Vleck, Albuquerque, N.M., for defend ant. narrow instances when act of Congress touches field in which federal interest is dominant and scheme of federal regula MEMORANDUM OPINION AND ORDER tions is so pervasive that it is reasonable to infer congressional intent to preem pt U.S. C.A. C o n st Art. 6, cl. 2. BURCIAGA, District Judge. THIS MATTER comes before the Court on D efendant's motion for partial summary 3. S tates =18.5 judgm ent. The Court, having reviewed the To extent th at state law actually con pleadings, the evidence of record and the flicts with federal law, preemption by impli relevant law, finds th at the motion is not cation exists. U.S.C.A. C o n st Art. 6, cl. 2. well taken and should be denied. 744 667 FEDERAL SUPPLEMENT The question before the Court is a n ar for use in this country. It is also undisput row one: whether certain provisions of fed eral law preem pt a state common law prod ucts liability claim for defective design of a pertussis vaccine m anufactured by Defend ant. Plaintiffs bring suit against Defendant for damages allegedly caused by adminis tration of diphtheria, tetanus and pertussis vaccine ["DPT"], a prescription biological product m anufactured by D efendant Lederle, to Plaintiff H eather MacGillivray, who a t the time of the injection was approxi mately two months of age. Defendant moves for partial sum m ary judgm ent on one aspect of Plaintiffs' claim sounding in strict to rt liability, namely that of defective ed th at the S tate of New Mexico requires vaccination of children prior to school at tendance. See 24-5-1 NMSA 1978. In brief, Defendant contends that "the FDA is specifically delegated with plenary authority and the expertise to determine whether a biological vaccine is sufficiently safe and effective for use within the United States." Therefore, Defendant argues, "it would be improper for a lay jury to decide on issues delegated to the expertise and regulation of a federal agency." [Thus], "Plaintiffs' claims alleging alternative, unapproved drug designs are preempted by federal law." design. Defendant argues that, as a bio Accompanying D efendant's motion are logical product, the pertussis vaccine is approxim ately 140 pages of federal regula regulated p u rsu an t to 42 U.S.C. 215 et tions, specifically 21 C.F.R. 211, 312, seg., the Public Health Service Act, and 21 600, 601, 610 and 620, passed under the U.S.C. 301 et seg., the Federal Food, authority of the Federal Food, D rug and D rug and Cosmetic Act, and the regula Cosmetic Act, 21 U.S.C. 301 et seg., and tions prom ulgated thereunder. Therefore, the Public Health Service Act, 42 U.S.C. D efendant reasons th at federal law serves 215 et seg. D efendant seemingly seeks to preem pt Plaintiffs' claim of strict liabili to show the extensiveness of federal regu ty for defective design. lation regarding the licensing, m anufactur Plaintiffs contend th at the DPT vaccine ing and distribution of prescription drugs m arketed under the product name Tri-Im- and biological products. D efendant, how munol "was manufactured and formulated ever, points to no express language under a plan or design which makes it preem pting state law products liability dangerous for the uses for which it was claims for defective design. Rather, De m anufactured," and it "was insufficiently fendant bases its preemption argum ent on tested for the risk of injury sustained by the doctrine of implied preemption. Specif H eather MacGillivray___" Complaint, ically, D efendant a sserts th at where there Count I, 1MI3, 4. The vaccine under scruti is congressional in ten t to occupy a field and ny is a "whole cell" vaccine, the only type where state law would interfere with the of vaccine currently licensed for manufac accomplishment of the full purposes and tu re and distribution in the United States. objectives of the federal law, the conflict The mechanism of the whole-cell vaccine ing sta te law is preem pted by the Suprem a and the industry's attem pts to develop al cy Clause of the Constitution, Article VI. ternative vaccines are discussed in Tover v. Lederle Laboratories, 779 F.2d 1429 (9th [1-3] Preem ption of sta te law m ay be ---s Cir.1986). A t one time a split-cell vaccine express or may arise by implication. In w as m arketed by Eli Lilly Company and both instances, the C ourt m ust determ ine was found to have few er toxic side effects th a t Congress either expressly or impliedly than the whole-cell vaccine. When Lilly intended to preem pt sta te law. W here ex stopped producing this vaccine, the Food press intent is lacking, there is a strong and Drug Administration ["FDA"] refused presum ption th a t Congress did not intend to relicense th a t vaccine to allow m anufac to displace sta te law. M a ryla n d v. L o u isi tu re by another laboratory. A third type ana, 451 U.S. 725, 746, 101 S .C t 2114, of vaccine known as an acellular vaccine is 2129, 68 L.Ed.2d 576 (1981); R ice v. S a n ta currently in use in Japan b u t not licensed F e E leva tor Corp., 331 U.S. 218, 230, 67 943 $ MACGILLIVRAY v. LEDERLE LABORATORIES 745 Che u M7 F.Supp. 743 (DA'.M. 1987) S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). This [6) When the focus of the preemption presum ption may be overcome in narrow inquiry is on a field which is traditionally instances when an act of Congress touches defined by state law, fu rth er hesitation in a field in which the federal interest is domi concluding intent to preem pt is w arranted. nant and the scheme of federal regulations is so pervasive th at it is reasonable to infer congressional intent to preempt. Fidelity Federal Savin gs & Loan Association v. D e la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). Alternatively, to the extent state law actually conflicts with federal law, making compliance with both federal and state regulation impossible and the state law stands as an obstacle to the accomplishment of congressional purposes, a preemption by implication has been found. See Florida Lim e & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 14243, 83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248 (1963); H in es v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). [4, 5] Defendant does not contend th at there is express language th at would preem pt the claim asserted here. Defend ant relies instead on implied preemption It would be rare indeed to infer an intent to supersede to rt actions involving rights and remedies traditionally defined exclusively by state law. The availability of to rt reme dies to com pensate fo r personal injuries is a subject m atter "traditionally regarded as properly within the scope of state superin tendence." Ftoridai.j.LinteA&fiAvocada Growers, 873 U.S."a t'1 4 4 f 83 S .c T a t 1218! While courts have recognized th a t in some rare instances state common law may be preempted by implication, this Court sees no reason to do so here. The state to rt law a t issue here is remedial and compensatory in nature; its purpose is not regulatory and does not directly conflict with any aspect of the federal regulatory scheme. New Mexi co to rt law does not attem pt in any way to create its own scheme to regulate drug manufacturing and distribution. with reference to the pervasiveness of fed Nor would a state law damage claim eral regulations in the area of d ru g m arket necessarily fru strate the federal objectives ing and design. However, comprehensive behind the federal laws a t issue here. The ness of federal regulations alone does not federal regulations are designed to assume provide a basis for inferring intent to the m anufacture and distribution of effec preempt. As recently articulated by the tive, safe pharmaceutical products for the Supreme Court, "We are even more reluc consumer. A tort judgm ent against a drug tan t to infer pre-emption from the compre m anufacturer may in fact accelerate the hensiveness of regulations than from the development of better, safer products. comprehensiveness of statutes. As a re sult of their specialised functions, agencies normally deal with problems in far more detail than does Congress. To infer pre emption whenever an agency deals with a problem comprehensively is virtually tanta mount to saying that whenever a federal agency decides to step into a field, its regu lations will be exclusive." Hillsborough C ou n ty, F lo rid a v. A u tom ated M edical Laboratories, In c., 471 U.S. 707, 717, 105 S.Ct. 2371, 2377, 85 L.Ed.2d 714 (June 4, 1985). Furtherm ore, because federal agen cies have the capacity to address problems in a detailed and comprehensive m atter, it is not unreasonable to expect th at if they Public policy militates against finding as a m atter of law that FDA approval of a particular drug product relieves a pharma ceutical company of further responsibility to continue research and testing to develop safer products. Furtherm ore, in order to find congres sional intent to preem pt state to rt reme dies, it would be necessary for this Court to find th at one purpose of the federal regula tions was to exempt m anufacturers from state law to rt liability. The Court declines to find such an intention implicit in a regu latory scheme governing m anufacture and distribution of biological products. A state intended their regulations to preem pt state may decide th at while it m ust abide by the law, the agency would so state. Id. a t 717, FDA's determ ination th a t a dru g is m arket 718, 105 S.Ct. a t 2377. able, the m anufacturer m ust nonetheless CO rf*. 746 667 FEDERAL SUPPLEMENT bear the expense of the risk of injuries, particularly where there is evidence that suggests th at the product may be subject to improvement. Imposing a burden on the sale in the form of potential liability for defective design is distinguishable from a state seeking to exert actual control over the mode of manufacture or distribution of a specific product. See Ferebee v. Chevron Chem ical Co., 736 F.2d 1529, 1541 (D.C. Cir.), ce rt denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984). Statutes and regulations of federal agen cies, while setting minimum standards, are not necessarily dispositive of whether or not a product is "defective" under state products liability law. See Michael v. Warner/Chilcott, 91 N.M. 651, 654, 579 P.2d 183 (Ct.App.), cert, denied, 91 N.M." 610, 577 P.2d 1256 (1978) (holding th a t federal regulations regarding warnings on drug products, while admissible as evidence, did not change the common-law duty to warn). See also Brochu v. Ortho Pharm aceutical C o r p .,.W l F.2d 652 (1st Cir.1981) (claim of design defect inherent in high estrogen birth control pill states cause of action for strict liability where same defendant m ar keted safer and highly effective pill). F u r thermore, "federal legislation has tradition ally occupied a limited role as the flo o r of safe conduct; before transform ing such legislation into a ceiling on the ability of states to protect their citizens, and thereby radically adjusting the historic federal-state balance, courts should wait for a clear statem ent of congressional intent to work such an alteration." Ferebee, 736 F.2d a t 1543.' In fact, protection of users lies a t the center of both federal and state law.1 There is no irreconcilable conflict between federal and state standards or a frustration of federal objectives. See Silkw ood v. Kerr-SlcGee Corp., 464 U.S. 238, 256, 104 S.Ct. 615, 626, 78 L.Ed.2d 443 (1984). The Court thus declines to find th a t state law for defective design is preem pted by feder al law.! See Silkwood, 464 U.S. a t 238,104 S.Ct. 615 (federal preem ption of safety as pects of nuclear energy does not extend to state-authorized award of punitive dam ages for conduct related to radiation haz ards); Ferebee, 736 F.2d a t 1529 (fact th at EPA has determined th at label on paraquat is adequate for purposes of the Federal Insecticide, Fungicide & Rodenticide Act does not compel a jury to find th at the label is adequate for purposes of s ta te to rt law); F eld m a n v. Lederle Laboratories, 97 N J . 429, 479 A.2d 374 (1984) (FDA regulations do not preem pt products liability claim for failure to warn of side effects of tetracy cline). W herefore, IT IS ORDERED, ADJUDGED AND DECREED th at Defendant's motion for summary judgm ent on the defective design claim be, and the sam e hereby is, denied. 1. In this regard, Congress has quite recently chosen to address the important legal and pub* lie health issues raised by suits against vaccine manufacturers wherein certain aspects of state tort law are in fact preempted. Title III of Public Law 99-660, known as the "National Childhood Vaccine Injury Act/' was signed into law on November 14, 1986. However, the rele vant portions of the Act do not become effective until funds are made available. See Pub.L. 99660, 323. This Act may indeed serve to pre vent future injured parties from bringing slate claims based on defective design. See Pub.L. 99-660, House R. No. 908, 99th Cong., 2d Sess. 25-26, reprinted in 1987 U.S.Code Cong. & Admin.News 6344, 6366-67. A plaintiff having a pending action, however, will not be governed by the Act unless he or she voluntarily chooses to submit him self or herself to its provisions. Therefore, the Court need not consider the pro visions o f this Act as applied to this Plaintiff, except to note that the Act, by preempting cer tain kinds of claims, suggests that such claims were available prior to the implementation of the Act. 2. The Court Is aware of a recent district court opinion holding to the contrary. See Hurley v. Lederle Laboratories, 651 F.Supp. 993 (E.D.Tex. 1986). This Court declines to follow that hold ing. NAVAJO TRIBE OF INDIANS v. U.S. DEPT. OF INTERIOR 74" Cllc m 667 F.Supp. 747 (DJ4JU. 1987) due to of lack of funds a t the local level, NAVAJO TRIBE OF INDIANS, Plaintiff. v. UNITED STATES DEPARTMENT OF the INTERIOR, Donald P. Hodel, Secretary of the Interior, Ross 0 . Swimmer, As sistant Secretary for Indian Affairs, and Wilson Barber, Jr., Area Director, Navajo Area Office, Defendants. the D epartm ent failed to follow its own procedures in declining to recontract on th at basis, and the D epartm ent and its rep resentatives failed to pursue all avenues open to them under the regulations and failed to afford the Indian tribe all of the procedures it was due. Indian Self-Deter mination and Education Assistance Act, 2 e t seq., 106, 25 U.S.C.A. 450 et seq., 450j. Civ. No. 86-0220-JB. United States District Court, D. New Mexico. March 26, 1987. Paul E. Frye, Albuquerque, N.M., and Donna C. Chavez, Navajo N ation Dept, of Justice, Window Rock, Ariz., for plaintiff. Indian tribe brought action, seeking order compelling the Departm ent of the Interior to enter into contract with the tribe for the purpose of maintaining tribal census records. The D istrict Court, Burciaga, J., held that: (1) action was not moot, and (2) record was insufficient to support the D epartm ent's decision. Remanded.12 1. F ederal C ourts =727 Conclusion of the 1986 fiscal year and ability of Indian tribe to obtain funds to continue operation of census program did not render moot action by Indian tribe, seeking order compelling the Departm ent of the Interior to enter into contract with the tribe for the purpose of maintaining tribal census records; the tribe sought to recontract for period of three years begin ning with the fiscal year of 1986, and the funding problem was situation capable of repetition yet evading review on yearly ba sis. Indian Self-Determination and Edu cation Assistance Act, 2 e t seq., 106, 25 U.S.C.A. 450 e t seq., 450j. 2. F ederal C ourts =942 Record did not support decision by the Department of the Interior not to recon tract with Indian tribe for the purpose of maintaining tribal census records, and thus, remand was necessary for develop ment of proper record; although the De partm ent denied the recontract application Ronald F. Ross, A s st U.S. Atty., Albu querque, N.M., for defendants. MEMORANDUM OPINION AND ORDER BURCIAGA, D istrict Judge. THIS MATTER comes before the Court on a motion to dismiss by Defendants, cross-motions for sum m ary judgment, De fendants' motion to limit the Court's review to the administrative record, as well as P laintiffs motion for a preliminary injunc tion. The Court, having reviewed the pleadings, the evidence of record and the relevant law, treating the Complaint as one requesting judicial review of an agency de cision, finds th a t the record below is inade quate to support the actions of the Defend ants and remands the cause to the Secre tary for further proceedings consistent with this opinion. Plaintiff Tribe asks this Court to issue an order compelling the Government Defend ants to enter into a contract with the Tribe for the purpose of maintaining tribal cen sus records. The United States, through the Secretary of the Interior, has the au thority under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. 450 et seq., to enter into contracts with the Tribe, a t the Tribe's option, to provide for tribal administration of certain services previously administered by the federal government through the Bureau of Indian A ffairs ["B IA "]. This arrangem ent is in- . 1108 844 FEDERAL REPORTER, 2d SERIES law or any Government-wide rule or regu lation." 5 U.S.C. 7117(a)(1). The Circu lar provides that its provisions "shall not be construed to create" any right of appeal except as provided in the Circular itself. The majority finds that the FLRA's ruling, th at the Union's proposal is negotiable, is in conflict with the Circular because the ruling subjects agency contracting-out deci sions to the A ct's grievance procedures. A t 1098-99. I disagree with the m ajority's conclusion for two reasons. First, the Union's proposal does not create any new right of appeal, because, as discussed above, the right to file grievances regarding contracting-out decisions is created by the Act. 5 U.S.C. 7103(a)(9) and 7121(a).18 Second, even assum ing there is an inconsis tency between the Act's grievance proce dures and the Circular's appeal procedures,18 there is no indication th a t Congress intend ed agencies to limit by regulation the sta tu torily defined grievance procedure of sec tion 7121. EEOC v. FLRA, 744 F.2d a t 851. with m anagem ent's substantive rights. The C ircular's appeals procedure does not affect the guidelines m anagem ent m ust fol low when m aking a contracting-out deci sion. T herefore, section 7117(a)(1) is not a b ar to negotiation of the Union's proposal. F o r the reasons sta te d herein, I believe th a t th e FLR A 's decision th a t the Union's proposal is negotiable should be upheld, and its order should be enforced. I there fore respectfully dissent. Chief Judge W INTER, Judge PHILLIPS, Judge SPROUSE; and Judge ERVIN have authorized me to s ta te th a t they join in my dissent. Tracy Isabel ABBOT, a m inor who sues by her m other and next friend Deborah ABBOT, Plaintiff-A ppellant, The Act's legislative history m akes it clear that Congress intended th at section 7117(a)(1) only b ar negotiation over propos als that would bring about inconsistencies with law, rule, and regulation. See H.Con. Rep. No. 1717, 95th Cong., 2d Sess. 158, reprinted in 1978 U.S.Code Cong. & Admin.News 2860, 2892, and in Legislative H istory a t 826. Thus, if a proposal's only inconsistency with a rule or regulation con cerns grievance procedures, then section 7117(a)(1) would not b ar negotiation o f the proposal. The primary concern of the "not inconsistent with any . . . law . . . rule or regulation" clause of section 7117(a)(1) is with inconsistencies th at would interfere V. AMERICAN CYANAMID CO., a Maine Corp., Defendant-Appellee, P harm aceutical M anufacturers Associa tion; Am erican Academy of Fam ily Physicians; United S tates of America, Amici Curiae. No. 87-1578. United States Court of Appeals, Fourth Circuit. A rgued Jan . 4, 1988. . Decided April 20, 1988. V accinated child b ro u g h t products lia* bility action against m anufacturer of 18. The Circular itself indicates that it will not apply when it is in conflict with a statute: 'This Circular'and its Supplement shall not: (1) Be applicable when contrary to la w ...." 48 Fed. Reg. 37110 at U7(c)(1) (1983). 19. The majority compares the appeals proce dure provided in the Circular with Title VII's grievance and arbitration procedure, and con cludes that they are impermissibly inconsistent because o f the Circular's proviso that it "shall not be construed to create any substantive or procedural basis for anyone to challenge any agency action or Inaction on the basis that such action or inaction w as not in accordance with this Circular." Maj. at 1099 (quoting OMB Cir cular A -76 at 4). It is patently obvious that this provision in the Circular is designed merely to prevent any*claim o f a private right o f action arising from the Circular itself apart from the appeals procedure contained in the Circular. It does not purport to do som ething an internally promulgated executive branch rule cannot do in any event, namely limit the rights or remedies that m ay be conferred by a federal statute such as Title V ll of the Civil Service Reform Act of 1978. 945 ABBOT BY ABBOT v. AMERICAN CYANAMID CO. HQ9 Clie a 844 F J S 1108 (4lhC lr. 1988) diptheria-tetanus-pertussis vaccine to re Public H ealth Service Act, 2-1001, as cover dam ages fo r neurological injuries. am ended, 42 U.S.C.A. 201-300. The United States District Court for the E astern D istrict of Virginia, Claude M. Hil 4. S ta te s =18.11 ton, J., granted sum m ary judgm ent in fa When Congress does not expressly vor of m anufacturer. Child appealed. The sta te its intent, th ere is presum ption Court of Appeals, M urnaghan, Circuit a g a in st preem ption o f s ta te law. Judge, held th at: (1) federal law did not preem pt Virginia common-law liability for 5. S ta te s =18.13 defective design or failure to warn; (2) Presum ption against preemption of under Virginia law allegedly adequate state law is even stronger with state or warning on vaccine did not foreclose design local regulation of m atters related to defect claim in either w arranty or tort; and health and safety. (3) question of fa ct precluded sum m ary judgment as to adequacy of warning. 6. S ta te s =18.9 Reversed. Wilkins, Circuit Judge, concurred and filed opinion. Courts are reluctant to find preemp tion by federal regulations when agency does not make very clear intent of preemp tion, since agencies normally address prob lem s in detailed m anner. 1. S ta te s =18.5, 18.7 Federal preemption o f sta te law occurs 7. S ta te s =18.15 if Congress passes statute th at expressly Presum ption against preemption of preem pts state law, if Congress implies state law is even stronger against preemp that it has preem pted state law by occupa tion of sta te remedies, like to rt recoveries, tion of entire field of regulation, or if state w here no federal rem edy exist. law conflicts with federal law due to impos sibility of compliance with state and federal 8. D rugs and N arcotics =18 law or state law acting as impediment to S tates =18.65 federal purpose. U.S.C.A. Const. A rt. 6, cl. Coexisting Virginia law regarding lia 2. bility for defective design of vaccine or 2. D rugs a n d N arcotics <3=11, 18 S tates =>18.65 Public Health Service Act and Federal Food, Drug, and Cosmetic Act did not re flect federal purpose to occupy field of vaccine design and labeling and did not impliedly preem pt state regulation of vac cine m anufacturer or impliedly preem pt state common-law liability for defective de sign of vaccine or m anu factu rer's failure to warn. Federal Food, Drug, and Cosmetic Act, l-902(b, c), 21 U.S.C.A. 301-392; Public H ealth Service Act, 2-1001, as amended, 42 U.S.C.A. 201-300; U.S.C. A. C o n st A rt. 6, cl. 2. 3. D rugs an d N arcotics =>3 m anufacturer's failure to w arn would not fru strate federal interest in vaccine safety and quantity, and thus, federal law did not preem pt state law; state law remedies re mained available a fte r passage of National Child Vaccine Injury Act, which establishes' no-fault compensation program as alter nate to state to rt and contract recoveries; and Act assumed th at state tort and con tract actions were available without pre emption by other federal legislation. Fed eral Food, D rug, and Cosmetic Act, 1 - ' 902(b, c), 21 U.S.C.A. 301-392; Public H ealth Service Act, 2-1001, as amended, 42 U.S.C.A. 201-300; U.S.C.A. Const. A rt. 6, cl. 2. D iptheria-tetanus-pertussis vaccine' 9. S tates =18.3 was prescription biological product subject Preemption under frustration of feder to provisions of federal statutes and regu al purpose theory is more exercise of policy , lations. Federal Food, Drug, and Cosmetic choices by court than strict statutory con- ' Act, l-902(b, c), 21 U.S.C.A. 301-392; struction. mo 844 FEDERAL REPORTER, 2d SERIES 10. S tates =>18.3 Washington, D.C., for Enforcement, Food Point of time relevant to decide wheth & Drug Admin. er federal policy requires preemption, as opposed to time when intent of statute to preempt is discerned, is time of suit. Richard K. Willard, Asst. Atty. Gen. (John F. Cordes, Irene M. Solet, Appellate Staff, Civ. Div., Dept, of Justice, Washing 11. F ed eral C o u rts =616 ton, D.C., on brief), for amicus curiae U.S. Vaccine manufacturer's argument that adequate warning precluded imposition of liability for defective product was not sub stantial shift in theory and could be con sidered by Court of Appeals, even though it was not presented in district court in prod ucts liability action. Richard F. Kingham, Bruce N. Kuhlik, Covington & Burling (Bruce J. Brennan, Edwin C. Mulcahy, Washington, D.C., Pharmaceutical Mfrs. Ass'n, on brief), for amicus curiae Pharmaceutical Mfrs. Ass'n in support of defendant-appellee. Gerald W. Gorman, John A. Vering, III 12. D rugs an d N arco tics =>18 Under Virginia law allegedly adequate warning on vaccine did not foreclose design defect claim in either warranty or tort. 13. E vidence =571(3) (Dietrich, Davis, Dicus, Rowlands, Schmitt & Gorman, Kansas City, Mo., on brief), for amicus curiae American Academy of Fami ly Physicians in support of defendant-appel lee. Treating physician's subjective view as to adequacy of warning on vaccine did not conclusively determine issue under Virginia law. Before MURNAGHAN, SPROUSE, and WILKINS, Circuit Judges. MURNAGHAN, Circuit Judge: 14. Federal Civil Procedure <^2515 Whether warning for diptheria-tetanus-pertussis vaccine was adequate under Virginia law was question of fact preclud ing summary judgment in vaccinated child's products liability action against manufacturer. Plaintiff, Tracy Abbot, whose name throughout is sometimes inconsistently spelled as "Abbott", is a four year old child . suffering neurologic injuries. She alleges that they result from inoculation in August 1983 of Tri-Immunol, a diptheria-tetanuspertussis (DTP) vaccine manufactured by Lederle Laboratories, a division of defend Michael Hersch Gottesman (Barbara E. Bergman, David A. Sklansky, Cynthia L. Estlund, Deborah C. Malamud, Bredhoff & Kaiser, Washington, D.C., Anthony M. Colantoni, Martin Preiser; McDowell & Colantoni, Ltd., Chicago, 111., Robert J. Zelnick; Szabo, McCarthy, Quito, Webb & Zelnick,. Woodbridge, Va., on brief), for plaintiff-ap pellant. Lloyd Norton Cutler (James Robertson, Ronald J. Greene, Michael Stevenson, Rob ert C. Longstreth, Wilmer, Cutler & Picker; ing, Edwin A. Williams, Kellogg, Williams & Lyons, Washington, D.C., on brief), for defendant-appellee. ant American Cyanamid Co. Plaintiff brought suit under three counts: (1) strict liability, (2) breach of implied warranty of merchantability and (3) negligence. In the course of the summary judgment proceed ings, plaintiff limited her claims to: (1) breach of warranty in two manners (a) failure to warn and (b) defective design, and (2) the tort of negligent design. The district court granted summary judgment on all claims to defendant. First, it held that plaintiff's rights under state law were preempted by federal law. Sec ond, the court granted judgment, on an alternate basis, to defendant on plaintiff's failure to warn claim because plaintiffs Ronald E. Robertson, Gen. Counsel, administering physician, who was a Dept, of Health & Human Services, Cather "learned intermediary," testified on deposi ine C. Lorraine, Associate Chief Counsel, tion that the warnings were adequate. 946 ABBOT BY ABBOT v. AMERICAN CYANAMID CO. Clic u 644 F M 1106 (4ih Clr. 1988) 1111 1. Whetherfederal law preempts imposi pensate children injured by vaccines. The tion of state common law liability for 1986 Act directed that children would have defective design or failure to warn access to state remedies but with certain upon a manufacturer of a vaccine. restrictions for injuries resultant from vac 11] The doctrine of federal preemption cinations administered after the 1986 Act's of state law arises under the supremacy effective date. The effective date of the clause of the United States Constitution, pertinent provisions of the 1986 Act is the art VI, cl. 2. Preemption occurs in any of date of enactment of a special tax to fi three manners: (1) Congress may pass a nance the compensation program. The statute that by its express terms preempts state law, (2) Congress, though not ex pressly so stating, may imply that it is preempting state law by occupation of an entire field of regulation, so that no room is left for supplementary state regulation, (3) Congress may speak neither expressly nor impliedly of preemption, nonetheless state law is preempted to the extent it actually conflicts with federal law; such a conflict occurs when (a) compliance with both state and federal law is impossible or 1986 Act did not provide a funding tax, but part of the Omnibus Budget Reconciliation Act of 1987 (Budget Act) did. A manufac turers' excise tax was placed on certain vaccines to fund the Vaccine Injury Com pensation Trust Fund. The Budget Act also contains the Vaccine Compensation Amendments of 1987 (1987 Act) that estab lish October 1, 1988 as the effective date for the compensation system and limitation upon state law for vaccinations occurring after that date. (b) when state law stands as an impediment Plaintiffs argument is anachronistic, for to a federal purpose. Michigan Canners it uses subsequent legislation in construing and Freezers Assoc, v. Agricultural Mktg. the preemptive effect of the earlier, PHSA and Bargaining Bd., 467 U.S. 461, 469, and FDCA, statutes. While anachronistic, 104 S.Ct. 2618, 2622-23, 81 L.Ed.2d 399 the approach is not without support; the (1984). Supreme Court has on occasion found evi dence of Congress' intent concerning a Defendant discerns preemption of plain statute at the time of its enactment embod tiffs claims from the Public Health Service ied in subsequent actions regarding the Act, 42 U.S.C. 201-800 (PHSA) and the statute. Grove City College u Bell, 465 Federal Food, Drug, and Cosmetic Act, 21 U.S. 555, 567, 104 S.Ct 1211, 1218, 79 U.S.C. 301-392 (FDCA) of which the L.Ed.2d 516 (1984). Since the 1986 Act is enactments both predate the regrettable an amendment to the PHSA the exception 1983 incident. Defendant argues for pre might apply. We need not decide what emption most strongly under manner 3(b), effect the 1986 Act has, as plaintiff claims, frustration of a federal purpose, its s e for determining the preemptive intent of called narrow preemption argument, the PHSA and FDCA, for even without though it alternatively argues that manner consideration of what we should draw from 2 is satisfied also, its broad preemption the allowance of state based actions in the argument. Defendant makes no argument 1986 Act, we conclude that; considering the that Congress, in the period relevant to the ' PHSA and FDCA alone, Congress did not present case, has expressly displaced state intend, either expressly or impliedly, to law regarding vaccines. Plaintiff argues preempt state law. the contrary, that Congress has expressly provided the opposite, i.e., that state reme dies apply. Plaintiff discerns the argu ment from the National Childhood Vaccine Injury Act of 1986, Pub. L. 99-660, 100 Defendant's broad preemption theory is that pervasive federal regulation of vac cines reflects a federal purpose to occupy the field of vaccine design and labeling. Defendant's narrow theory is that the na Stat. 3755 (1986), (1986 Act) and its legisla tional public health purposes and objectives tive history. underlying the PHSA would be frustrated In the 1986 Act, Congress created an if potentially ruinous liability could be im administrative "no-fault" program to com- posed under state law for manufacturing 1112 844 FEDERAL REPORTER, 2d SERIES the only type of pertussis (whooping (4-7) Preemption does not follow imme cough) vaccine approved by the federal diately from the comprehensive federal government rather than a different type of regulation of prescription biological prod vaccine that is not now and might never be ucts. Every subject that merits congres federally approved. Defendant argues sional legislation is, by definition, a subject that preemption under its narrow theory is of national concern. That cannot mean, most clear as against design defect and however, that every federal statute ousts failure to warn claims, as plaintiff alleges in the present case, in contrast to claims of improper manufacture, distribution or test ing. We first consider the broad theory, then the narrow. all related state law. Hillsborough. Coun ty v. Automated Med. Labs., 471 U.S. 707, 719, 105 S.Ct. 2371, 2378, 85 L.Ed.2d 714 (1985). Defendant has several canons of interpretation and presumptions set [2,3] The FDA's regulation of prescripagainst it. When Congress does not ex tion drugs and biological products is com pressly state its intent, there is a presump prehensive. The DPT vaccine is a prescrip tion against preemption. Maryland v. tion biological product subject to the provi Louisiana, 451 U.S. 725, 726, 101 S.Ct. sions of the FDCA, the PHSA, and regula tions promulgated thereunder. The FDA regulations encompass the licensing, pro duction, testing, distribution, labeling, re view and approval of all drugs and biologi- 2114, 2118-19, 68 L.Ed.2d 576 (1981). The presumption is even stronger with state or local regulation of matters related to health and safety. Hillsborough, 473 U.S. cals. Each DPT manufacturer must be at 715, 105 S.Ct. at 2376. Courts are more licensed, must submit detailed description reluctant to infer preemption from the com of and receive FDA approval of its manu prehensiveness of regulations than from facturing process, must permit FDA in the comprehensiveness of statutes. Id. at spection of its manufacturing facilities, 717, 105 S.Ct. at 2377. When preemption meet personnel qualifications, and conduct by regulation is considered, courts are re and submit results of quality assurance luctant to find preemption by federal regu tests to the FDA for each batch of vaccine. lations when the agency does not make 21 C.F.R. 600.20, 601.1, 601.2, 601.25, very clear an intent of preemption since 610.1, 620.1-620.7. agencies normally address problems in a The FDA requires that the label or pack age insert for a biological product contain among others: (1) the composition of the product; (2) the product's administration schedule; (S) indication and contraindica detailed manner. Id. at 718, 105 S.Ct. at 2377-78. The presumption against pre emption is even stronger against preemp tion of state remedies, like tort recoveries, when no federal remedy exists. Silkwood tion of product usage; and (4) potential v. Kerr-McGee Corp., 464 U.S. 238, 251,., adverse reactions associated with the prod 104 S.Ct. 615, 622-23, 78 L.Ed.2d 443. uct's use. 21 C.F.R. 201.5fr-.57, 610.- (1984). All of those work against preemp 60-.65. The language of the label is sub tion in the present case. We agree with ject to FDA approval, and once approved, the majority of courts addressing the issue cannot be changed without FDA approval. that Congress has not impliedly preempted 21 C.F.R. 601.12. state regulation of vaccine manufacture.1 9 4 7 QAV 1. The overwhelming majority of courts consid ering federal preemption of state law as regards ,, vaccines have found no preemption. Foyle v. Lederle Laboratories, 674 F.Supp. 530 (E.D.N.C. 1987), petition fo r perm ission to pursue in terio r u to ry appeal file d in this Court Dec. 3, 1987 (No. 87-8119); Percival v. Am erican C yanam id Co,, N o. CIV-85-2671-P (W.D.Ok. Nov. 25, 1987) (available on WEST1AW, 1987 WL 46954); Sch o ll v. Lederle Laboratories, 684 F.Supp. 246 (D.Ariz.1987); Morris v. Parke, Davis & Co., 667 F.Supp. 1332 (C.D.Cal.1987); M acG illivrayv. Le derle Laboratories, 667 F.Supp. 743 (D.N.M.1987); G raham v. Wyeth Laboratories, 666 F.Supp. 1483 (D.Kan.1987); Wack v. Lederle Laboratories, 666 F.Supp. 123 (N.D.Ohio 1987); Patten v. Lederle Laboratories, 665 F.Supp. 745 (D.Utah 1987). Only the court in Hurley v. Lederle Laboratories, 651 F.Supp. 993 (E.D.Tex.1986) and the district court in the present case have found federal pre emption. ABBOT BY ABBOT v. AMERICAN CYANAMID CO. Cite u 44 F J S I IDS (4lh Clr. 198) 1113 18,9) Defendant's narrow preemption frustrated by coexisting state regulation. argument, that the national public health Thus, it is appropriate to look at recent purposes would be frustrated by potential views on federal policies regarding the bal ly ruinous state law tort liability, is also ance of vaccine availability and safety espe incorrect. A decision about preemption on cially those enunciated by the Congress. that ground requires the court indepen The Childhood Vaccine Injury Act of 1986 dently to consider national interests and speaks to this balance with clarity. Con their putative conflict with state interests. gress created a "no-fault" compensation While preemption under a theory of ex program as an alternate to state tort and press or implied preemption is essentially a contract recoveries. The legislative history matter of statutory construction, preemp of the Vaccine Compensation Amendments tion under a frustration of federal purpose of 1987 make even more clear that at the theory is more an exercise of policy choices time of passage of the 1986 and 1987 Acts by a court than strict statutory construc Congress acted with the understanding tion. An independent judgment that feder that state tort and contract remedies were al purposes require preemption comes in available and that they continue to be avail the face of congressional silence, both ex able as modified by the Acts. press and implied, on the subject The overall goal of the PHSA and FDCA is the safety of drugs and biologic prod ucts. That goal is more enhanced than frustrated by state law. However, the fed eral government has favored not only vac cine safety but also availability and use. Availability and use of vaccines can be frustrated by state tort law. The issue then is whether the federal interest re quires that federal regulation be viewed as having struck the balance between safety and quantity or whether the regulations merely establish minimum safety standards and allow state regulation to establish the balance. See Hillsborough, 471 U.S. at 721,105 S.Ct at 2379 (The Court responded to a similar preemption argument and de cided that federal regulation of blood plas ma collection did not strike the balance of safety and quantity, but only provided min imum standards). Congress, when it addressed vaccines in 1986 and 1987, did not preempt state law. Further, to the extent that the Acts state congressional views about the preemptive effect of earlier legislation, the Acts and their legislative history assume that earlier legislation was of no preemptive effect Defendant argues that the 1986 Act did not reject preemption, rather it is neutral on the issue leaving the preemption issue ex actly as it stood before the 1986 A ct De fendant supports the argument in the only way it can, by noting that the word "pre emption" cannot be found in any of the 1986 Act legislative materials, therefore, it was not addressed. While the premise is true, the conclusion is not The 1986 Act is replete with two powerful assumptions: one, state tort and contract actions are available without preemption by earlier fed eral legislation and two, following the 1986 Act's effect state law actions remain avail In deciding the issue of whether federal able. The 1987 Act expressly states these law should strike the balance or allow assumptions. Defendant's assertion that states to, it is appropriate to consider the the statement, made in the purpose and National Childhood Vaccine Injury Act of summary section of the House Report on 1986. As indicated earlier, we assume the the 1986 Act, "[vjaccine-injured persons . . . 1986 Act is of no relevance in construing [who] reject a judgment and award made the preemptive intent of earlier federal leg under the compensation program . . . may. islation like the PHSA and FDCA. That file a civil action for damages relating to a conclusion is important when considering vaccine injury just as he or she may have whether Congress expressly or impliedly done prior to the enactment of the legisla preempted state law in those statutes. tion," is neutral on the issue of preemption We must decide whether the federal in strains a normal reading. H.R.Rep. No. terest in vaccine safety and quantity is 908, 99th Cong., 2d Sees. 4, reprinted in 1114 844 FEDERAL REPORTER, 2d SERIES t ft .. OO' o 1986 U.S. Code Cong. & Admin. News breaching the w arran ty of m erchantability 6287, 6344-45. in two m anners, one, by defective design [10] Since Congress did not believe, in 1986 or 1987, that federal public health policies require preemption of state tort and contract law regarding vaccines it is two, by inadequate w arning. There is yet another claim, pleaded by plaintiff, and al lowed under Virginia law, in to rt for negli gent design. dubious that the court should contempora The two warranty theories muddle to neously make the opposite policy determi some extent because plaintiff alleges that nation. The point of time that is relevant one aspect of the inadequacy of defend in deciding whether a federal policy re ant's warning was its failure to disclose the quires preemption, as opposed to point of defective design of the product. That alle time when the intent of a statute to preempt is discerned, is the time of the suit. See Hillsborough, 471 U.S. at 720722, 722 n. 5, 105 S.Ct. at 2380 n. 5 (the gation makes every defective design case a failure to warn case. But plaintiff does allege other defects of the warning, ade quate to state a cause of action. Court considers contemporaneous policy in terests). [ I l l Defendant muddles the two theo ries in the other direction. It argues that 2. Wkether Virginia law and its an adequate warning precludes imposition "learned intermediary " doctrine pre of liability for a defective product on any clude recovery from a vaccine manu theory. Thus, it argues that its adequate facturer warning precludes the defective design Under Virginia law, recoveries for per: sonal injuries caused by defective products can be made as breach of an implied war ranty of merchantability or under a tort theory of negligent design. The warranty cause of action bears considerable similari ty to the doctrine of strict liability in tort explained in Restatement (Second) of Torts 402A, though Virginia has not adopted 402A. Lust v. Clark Equip. Co., 792 F.2d 436, 438-39 (4th Cir.1986). The war ranty cause of action has two elements: (1) the goods were "unreasonably dangerous" either for the use to which they would ordinarily be put or for some other reason ably foreseeable purpose, and (2) the unrea sonably dangerous condition existed when the goods left the manufacturer's control. Bly v. Otis Elevator Co., 713 F.2d 1040, 1043 (4th Cir.1983) (quoting Logan v. Montgomery Ward & Co., 216 Va. 425, claim based on warranty. Defendant has a threshold problem in making the argument here because defendant did not make it below. Defendant's warning arguments below dealt only with whether the warning was adequate as a matter of law to fore close the failure to warn claim. Plaintiff argues that we, therefore, should not con sider the argument. The question is close. The precise argument was not presented below but it is not a substantial shift in theory. Plaintiff's claim for breach of war ranty alleges two manners in which the product was unreasonably dangerous. An argument that refutation of one theory of warranty recovery forecloses the other when the two are so closely related does not run afoul of fairness or the "sifting of issues" considerations embodied in the rule not to pass upon contentions not asserted in the district court. 428, 219 S.E.2d 685, 687 (1975)). A product [12] When defendant's argument is con is "unreasonably dangerous" if defective -. sidered, it fails. The cases it cites are not (1) in assembly or manufacture, (2) if im- directly on point. The argument is based prudently designed, or (3) if not accompa- on a dictum in Brockett v. Harrell Bros., nied by adequate warnings about its haz- Inc., 206 Va. 457, 143 S.E.2d 897 (1965). ardous properties. Id.; Lust 792 F.2d at Brockett was an adulterated food case in which the court indicated that while con Plaintiff claims that defendant's product tributory negligence does not apply to is "unreasonably dangerous" thereby claims for breach of the implied warranty !^ i jz- ABBOT BY ABBOT v. AMERICAN CYANAMID CO. Cite u 844 F-2d 1108 (4lh Clr. 1988) 1115 of wholesomeness of food, plaintiff cannot plaintiff's physician was adequate as a mat recover for defects known, visible or obvi ter of law, and formed a basis in addition to ous to her. Id. at 463, 143 S.E.2d at 902. federal preemption to reject the failure to Defendant's argument extends this dictum warn claim. to mean that plaintiff cannot recover in warranty for hazards that were adequately warned of. Virginia courts have not car ried this dictum as to ordinary consumer products, like food, to all products. The adequacy of a warning is a question of fact for the jury. Pfizer, 221 Va. at 683-84, 272 S.E.2d at 44-45. The issue is whether the warning was reasonable. Id. Defendant and the trial court make much The Supreme Court of Virginia in Featkerall v. Firestone Tire and Rubber Co., 219 Va. 949, 252 S.E.2d 358 (1975), considered many products liability issues of the fact that plaintiff's physician, Dr. Metzger, testified on deposition that the warning was "very adequate." Defendant argues, and the trial court held, that ade including claims for breach of implied war quacy was thereby conclusively estab ranty of merchantability by inadequate lished. warning, breach of implied warranty of merchantability by improper design and [13,14] We disagree on two grounds. tort negligent design of a tank lid. The First, Virginia law does not support the court found that plaintiff could not recover notion that the treating physician's subjec on any of these three theories from the tive view as to adequacy conclusively deter manufacturer of the tank lid. The court mines that issue. In Pfizer, the Supreme considered each claim independently, it did Court of Virginia found a warning ade not, after concluding that no duty to warn quate as a matter of law in spite of the arose, foreclose the warranty or tort negli treating physician's testimony of inadequa gence defect claims. cy. Second, plaintiff alleges that the warn We have decided that federal law does not preempt plaintiff's state law causes of action and that under Virginia law, an ade quate warning does not foreclose a design defect claim in either warranty or tort. We now consider each of the state law tort claims: (a) failure to warn, a manner under which the product would be "unrea sonably dangerous" and breach the implied warranty of merchantability, (b) defective design, a second manner in which the prod uct would be unreasonably dangerous, and ing should have contained a statement about a difference, known to defendant at the time, in adverse reaction rates between different pertussis vaccines. Dr. Metzger testified that had he known that informa tion he would have used the vaccine with the lowest reaction rate. Thus, the ade quacy of the warning even in Dr. Metzger's view is in issue. There is then a genuine issue regarding the adequacy of the warning. Summary judgment on the failure to wam claim was (c) negligent design, a tort action. improper. a. Failure to warn.- A product can be unreasonably danger ous if not accompanied by adequate warn ings about its hazardous properties. With prescription drugs, the duty is not the nor mal duty to warn the ultimate consumer. Rather, the duty is to wam the physician administering the drug. Stanback v. Parke, Davis and Co., 657 F.2d 642, 644 (4th Cir.1981) (applying Virginia law); Pfiz er, Inc. v. Jones, 221 Va. 681, 684, 272 S.E.2d 43, 44 (1980). The trial court ruled that the warning given by defendant to b. Design Defect and c. Negligent Design A product can be unreasonably danger ous if imprudently designed and such a finding will support a claim for breach of the implied warranty of merchantability. In addition, and separate from the warran ty claim, is a tort claim for negligent de sign. Featkerall v. Firestone Tire and Rubber Co., 219 Va. 949, 961-65, 252 S.E.2d 358, 366-68 (1979). In the former the focus is on the product and its attrib- . 1116 844 FEDERAL REPORTER, 2d SERIES utes, in the latter the focus is on the de For many years, one of this nation's fendant's conduct. main public health priorities has been the The merits of the design defect claims were not addressed below, the trial court dismissed any design defect claim as preempted. Since we reverse the preemp tion ruling, the design defect claims move back into the case. REVERSED. prevention of childhood diseases by immu nization. Through federal leadership and state immunization laws, most children are vaccinated against the major childhood dis eases prior to entering school. As a result, polio, diphtheria, and tetanus have been virtually eliminated in this country. While the immunization programs have been widely successful in preventing the deaths WILKINS, Circuit Judge, concurring: of thousands of children each year, a small I agree with the majority, but for differ ent reasons, that Congress did not intend to completely preempt state tort actions for but significant number of children have been injured from unavoidable side effects of some vaccines. DTP vaccine-related injuries. The majority There is no "perfect" vaccine currently reaches this conclusion without deciding available on the market. Some vaccines what congressional intent is reflected in have potentially fatal side effects, espe the National Childhood Vaccine Injury Act cially the pertussis component of the DTP of 1986, 42 U.S.C.A. 300aa-l, el seg. vaccine. Notwithstanding the potential (West Supp.1987). Prior to the passage of hazards, the medical community and parent this Act, federal law appeared to preempt groups have taken the position that the any state action alleging defective design risk of contracting the diseases is greater of the DTP vaccine. But, this Act unmis than the possible side effects of immuniza takably demonstrates that Congress in tion. The federal government continues to tended to preempt state law in only limited support immunization programs and in the areas of this field. See Grove City College majority of states, vaccination is still man v. Bell, 465 U.S. 555, 567, 104 S.CL 1211, datory for school admission. 1218, 79 L.Ed.2d 516 (1984) (evidence of Injured children have sought compensa congressional intent may be gleaned from tion in the courts with increasing frequen subsequent actions). cy. This has resulted in an increase in the In deciding whether federal law preempts state law, "our sole task is to ascertain the intent of Congress." Califor nia Fed. Sav. & Loan Ass'n v. Guerra, price of vaccines, and a decrease in the level of immunization of certain diseases with a corresponding increase in the inci dence of those diseases. As a further con 479 U.S. 2 7 2 ,----- , 107 S.CL 683, 689, 93 sequence of the increase in litigation, par L.Ed.2d 618, 623 (1987). In the absence of ticularly regarding the DTP vaccine, manu express congressional intent, preemption facturers are reconsidering their future may be inferred to the extent that "the role in the vaccine market. Very few com state law stands 'as an obstacle to the panies now manufacture childhood vac accomplishment and execution of the full cines. American Cyanamid is one of the ' purposes and objectives of Congress.' '' only two which manufactures the DTP vac Id. (quoting Hines v. Davidowitz, 312 U.S. cine. The withdrawal of any manufacturer 52, 67, 61 S.CL 399, 404, 85 L.Ed. 681 from the market poses a serious threat to (1941)). Although preemption should not public health, in the form of vaccine short be lightly presumed, id., the legislative his ages with resulting decreased immuniza tory of the Act presents some compelling tion and a possible resurgence of these reasons in support of a finding of preemp diseases. tion. H.R.Rep. No. 908, 99th Cong., 2d Under these circumstances alone, pre Sess. 1-7, reprinted in 1986 U.S.Code emption would be warranted because state Cong. & Admin.News 6287, 6344-48 (Legis tort actions for design and warning defects lative History). stand as an obstacle to a major federal $IV0 g6 LANDRY v. LYNAUGH 1117 Cite i t 844 F J d 1117 (SlhC lr. 1988) purpose. However, read as a whole, the [A]t the time of original enactment and legislative history and the Act demonstrate in passing this legislation, the Committee that congressional intent was not to resolve acted with the understanding that tort these problems by complete preemption of remedies were and are available___ state tort actions. Rather, Congress estab lished a no-fault compensation system which in part preempts state law, but largely complements the state tort sys tems. It is not the Committee's intention to preclude court actions under applicable law. The Committee's intent at the time of considering the Act and in these By requiring claimants to exhaust their amendments was and is to leave other administrative remedies in a speedy, no wise applicable law unaffected, except as fault system prior to filing court actions, expressly altered by the Act and Amend Congress hoped to divert a significant num ments. ber of potential litigants. Legislative His tory, supra at 6354. Children injured from vaccines administered after the effective date of the Act must proceed through the system as a prerequisite to filing a court action. 42 U.S.C.A. 800aa-ll. Those, such as Tracy Abbot, who were injured prior to the effective date are eligible to H.R.Rep. No. 391, 100th Cong., 1st Sess. 691 (1987), U.S.Code Cong. & Admin.News 1987, pp. 2313-1, 2313-365. Despite our differing analyses, we have reached the same conclusion: Congress did not intend to completely preempt state tort law in the area of vaccine-related injuries. participate in the new system, but are not required to exhaust its remedies before O IITHimiKSYSTIH resorting to the courts. Id. While the purpose of the system is to reduce litiga tion, the Act does not entirely preempt state laws. The Act generally provides that "State law shall apply to a civil action brought for damages for a vaccine-related injury or death." 42 U.S.C.A. 300aa-22(a). How ever, the Act does expressly preempt state law in several respects by: (1) adopting comment k of Section 402A of the Restate ment of Torts (Second), precluding liability for damages arising from unavoidable side effects of a properly prepared vaccine ac companied by proper directions and warn ings; (2) establishing a rebuttable pre sumption that warnings are adequate if they comply with federal regulations; and (3) codifying the learned-intermediary doc trine. 42 U.S.C.A. 300aa-22(b), (c). Significantly, the Act also preempts state statutes which prohibit civil actions against manufacturers for vaccine-related injuries. 42 U.S.C.A. 300aa-22(e); see also Legis lative History, supra at 6368. Finally, in the Vaccine Compensation Amendments of 1987, which set the effec tive date of October 1, 1988, Congress clearly expressed its intent: Raymond LANDRY, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent-Appellee. No. 88-2076. United States Court of Appeals, Fifth Circuit March 29, 1988. Petition was filed for writ of habeas corpus. The United States District Court for the Southern District of Texas, Lynn N. Hughes, J., denied writ Petitioner appeal ed. The Court of Appeals, Alvin B. Rubin, Circuit Judge, held that (1) petitioner failed to show adequate cause for proce dural default occurring when he failed in state court to object to state's hypothetical questions during voir dire; (2) defense counsel in state trial was not ineffective; 117 863 FEDERAL REPORTER, 2d SERIES Rules of Evidence have been afforded due ment was not made in response to police- consideration." Bourjaily at ----- , 107 initiated interrogation. The fifth amend S.Ct. at 2779. ment guarantees the right to have counsel [5] The defendants assert that suffi cient evidence was not presented to find that either Playboy or Kesha Deleveaux was a member of the conspiracy. The evi present at any custodial interrogation. Mi randa, 384 U.S. 471-473, 86 S.Ct. at 16261627. Absent such an interrogation, there can be no infringement of this right and no dence at trial, however, showed that Play reason to determine whether there had boy was present participating in the crimi been a valid waiver. Edwards v. Arizona, nal venture each time Payne made a trip to Baltimore. Also, Deleveaux admitted his wife was aware of his drug activities, even though he did say she did not approve. 451 U.S. 477, 485-486, 101 S.Ct. 1880, 1885-1 1886, 68 L.Ed.2d 378 (1981); see also Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The government, however, produced a Na tional Car Rental agreement which showed that Kesha Deleveaux later had rented a non-Florida car on February 7, 1987 at the Miami airport The car was turned in at Washington National Airport the next day, similar to the patterns of the rentals used on the drug courier runs. Based on the government's evidence, we cannot say the court's ruling on the preliminary questions was clearly erroneous, and, thus, the ad missibility of the statements must be up held. See Bourjaily a t ----- , 107 S.Ct at 2782-2783. (7) When Deleveaux was arrested, he was informed by the DEA agents of his Miranda rights. Deleveaux made no com ment on these rights, but, instead, began questioning Agent Dombroski about why he was being arrested. Dombroski told Deleveaux that he was being arrested for violation of 21 U.S.C. 846 and 841(a)(1), distribution of and conspiracy to distribute cocaine. Deleveaux said he didn't under stand, that he didn't know anything about any distribution of cocaine. In response to Deleveaux's repeated questioning, Dombro ski said to him, "Just think about Harry [6] Assuming, arguendo, the district Payne." Unsolicited, Deleveaux respond court erred in admitting the conversations, ed, "I don't know anything about Harry any such error would have been harmless. Payne. I don't know Harry Payne." The conversations contain no evidence of any criminal activity on the part of Jackson or Deleveaux and could not have influenced the jury. See United States v. Tibbetts, 565 F.2d 867, 868 (4th Cir.1977). Here, as in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the agent's statement does not rise to the functional equivalent of interroga tion. See Innis at 302, 100 S.Ct. at 1690. Deleveaux also contends that his false Dombroski's statement was in the form of exculpatory statement made to Agent a declaration, not a question. See Taylor Dombroski should not have been admitted v. Riddle, 563 F.2d 133, 135 (4th Cir.1977), at trial because its use violated his fifth cert denied, 434 U.S. 1020, 98 S.Ct. 744, 54 amendment right against self-incrimina L.Ed.2d 768 (1977). It came only in re tion. Deleveaux claims the statement was sponse in a conversation which Deleveaux made in response to what amounted to custodial interrogation after he had in voked his right to counsel and had not waived this right. See Miranda v. Arizo na, 384 U.S. 436, 445, 86 S.Ct 1602, 16121613, 16 L.Ed.2d 694 (1966). himself initiated, and it should not be con strued as an attempt to solicit information from Deleveaux. See United States v. Peoples, 748 F.2d 934 (4th Cir.1984), cert, denied, 471 U.S. 1067, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985). We believe, therefore, It is not necessary to ascertain whether that Deleveaux's statement was admissible or not Deleveaux's right to counsel had as a spontaneous comment voluntarily either been asserted or waived, although he made after being fully informed of his fifth had certainly been advised of it, because amendment rights. Nothing in the record we are of opinion that Deleveaux's state supports the proposition that Dombroski 950 P-'?7*' HURLEY v. L ED ER L E LAB. DIV. O F AM ERICAN CYANAMID H 7 3 Cite u 863 F-2d 1173 (SthC lr. 1988) knew or should have known th a t his brief as being entirely circum stantial, but cir response to Deleveaux would result in De- cum stantial evidence is treated no differ leveaux's false denial of knowledge. In- ently than direct evidence, and may be su f nis, 446 U.S. 302-303, 100 S.Ct. a t 1690- ficient to support a guilty verdict even 1691. Finally, both Jackson and Deleveaux as sert th a t the d istrict court erred in denying their motions for judgments of acquittal though it does not exclude every reason able hypothesis consistent with innocence. U nited S ta le s v. George, 568 F.2d 1064, 1069 (4th Cir. 1978). because of insufficiency of the evidence at Accordingly, the convictions are trial. The verdict of a jury' m ust be upheld if there is substantial evidence, taking the A FFIR M ED . view m ost favorable to the governm ent, to support th at finding of guilt. United States v. Jon es, 735 F.2d 785, 790 (4th Cir.1984), cert, denied, 469 U.S. 918, 105 S.Ct. 297, 83 L.Ed.2d 232 (1984). "[T]he relevant question is not w hether the appel late court is convinced of guilt beyond a reasonable doubt, but rather whether, viewing the evidence in the light m ost fa vorable to the government, any rational Jam es L. HURLEY, Jr., etc., et al., P lain tiffs-A ppellants, v. trier of facts could have found the defend L ED ER L E LABORATORIES DIVISION ant guilty beyond a reasonable doubt." United Sta les v. M acDougall, 790 F.2d O F AMERICAN CYANAMID CO., et al., Defendanls-Appellees. 1135, 1151 (4th Cir.1986). No. 87-2578. (8] We believe the government present ed sufficient evidence against both Jackson and Deleveaux to sustain their convictions. United States Court of Appeals, Fifth Circuit. As to Jackson, the evidence is th a t he was A ug. 17, 1988. present on the first trip by car to Baltimore and th at he assisted the drug couriers upon their arrival in Baltim ore on subsequent As Amended on Denial of R ehearing Jan : 5, 1989. trips. It was during the first trip that Dennis, in the presence of Jackson, told Parents of infant who suffered ad Payne th a t the cocaine was hidden in the trunk of the car. Jackson also participated in the m eetings with Dennis and Playboy in verse reaction a fte r receiving DPT vaccine brought products liability action against m anufacturer. The United States District Baltimore after the cocaine arrived by car. (9] Deleveaux also was present on the first trip when Dennis told Payne the co caine was hidden in the trunk of the car. Payne testified that he and Deleveaux joked about transporting the cocaine. De leveaux also was present on the third, fourth and fifth trips by car to Baltimore. Furthermore, Deleveaux acknowledged his awareness of the cocaine activity, when he and Payne discussed his wife's feelings about his illegal activities.10 Court for the Eastern District of Texas, Howell Cobb, J., 651 F.Supp. 993, granted partial summary judgm ent for manufactur er, and appeal was taken. The Court of Appeals, E. Grady Jolly, Circuit Judge, held that: (1) federal law did not implicitly preem pt state law product liability action ag ain st vaccine m anufacturer; (2) "m ass immunization" exception to "learned inter mediary" doctrine was inapplicable and m anufacturer satisfied duty to warn by w arning physician; and (3) fa ct issue exist ed as to w hether m anufacturer withheld (10] Jackson and Deleveaux criticize material information from FDA so as to the evidence presented by the government render FD A-approved warning inadequate. 1174 863 FEDERAL REPORTER, 2d SERIES Reversed and remanded. Opinion superseded, 851 F.2d 1536. 1. Drugs and Narcotics 0=20 States =18.65 Federal law did not implicitly preempt state law claims that vaccine manufacturer breached duty to warn of product risks and duty not to place unreasonably dangerous products into commerce absent evidence that preemption was intended. U.S.C.A. Const Art. 6, cl. 2; Public Health Service Act, 2 et seq., as amended, 42 U.S.C.A. 201 et seq.; Federal Food, Drug, and Cosmetic Act, 1 et seq., 21 U.S.C.A. 301 et seq. 5. Federal Civil Procedure =2515 Issue of material fact as to whether vaccine manufacturer provided Food and Drug Administration with all necessary and available information on which to base prescribed warning precluded summary judgment for manufacturer, in failure to warn action by parents of infant who suf fered adverse reaction after receiving vac cine. Marcus A. Pitre, H.P. Wright, Wright & Pitre, Port Neches, Tex., Andrew W. Dodd, Denver & Dodd, Torrance, Cal., for plaintiffs-appellants. 2. Drugs and Narcotics 0=18 Richard L. Josephson, Patrick C. Appel, Doctrine of "learned intermediary" ap Baker & Botts, Houston, Tex., for defend- plies when patient receives drug or vaccina ants-appellees. tion through doctor who weighs risks and benefits and makes decision to administer it; in such a case, fact that manufacturer has adequately warned prescribing physi cian will protect it from liability to patient for failure to warn. Richard T. McCarroll, Demaris Gullekson, Brown, Maroney, Rose, Barber & Dye, Austin, Tex., O.J. Weber, Mehaffy, Weber, Keith & Gonsoulin, Beaumont, Tex., for Connaught Laboratories. See publication Words and Phrases for other judicial constructions and definitions. William G. Cole, Appellate Staff, Civil Div., U.S. Dept, of Justice, Washington, D.C., for amicus-U.S. Dept. Health and 3. Drugs and Narcotics =18 Human Services. "Mass immunization" exception to learned intermediary doctrine did not apply Appeal from the United States District \ in parents' action against DPT vaccine Court for the Eastern District of Texas. lr manufacturer arising out of nurse's admin u istration of vaccine to their child in office Before WISDOM, REAVLEY and under supervision of prescribing physician; JOLLY, Circuit Judges. patient-physician relationship clearly exist ed before and at time of immunization, and manufacturer thus satisfied its duty to E. GRADY JOLLY, Circuit Judge: warn by warning physician. James Hurley III and his parents appeal See publication Words and Phrases for other judicial constructions and definitions. the district court's partial summary judg ment against their products liability claims arising from the severe neurological dam 4. Drugs and Narcotics =20 age the minor Hurley sustained after inno- States =18.65 culation with Lederle's pertussis (whooping If manufacturer provided Food and cough) vaccine, 651 F.Supp. 993. Since we Drug Administration with all necessary disagree with the district court that federal and available information on which to base law preempts the state products liability warning, Administration's decision as to law, and since our examination of the proper wording would impliedly preempt record reveals factual questions remaining state action claiming that warning was in on the other issues, we reverse and re sufficient mand. L i b - ^ 196 o HURLEY v. LEDERLE LAB. DIV. OF AMERICAN CYANAMID H 7 5 Clle as 863 F.2d 1173 (S lh C lr. 1988) I ternative vaccines show th at they are as James Hurley III was less than a year old when he was vaccinated with a DPT vaccine, which includes three separate com ponents to immunize against diptheria, per effective as the "whole cell" vaccine but less likely to cause the type of neurological dam age sustained by their child. Although an FDA-approved vaccine similar to these tussis, and tetanus. The vaccination was alternatives was sold in the United States done with a "whole cell" p ertussis compo from 1962 to 1977, the m anufacturer with n ent1 m anufactured by Lederle Laborato drew from the entire vaccine m arket and ries. The child received the vaccine in the none is currently licensed by the FDA for office of his persona) doctor. Shortly a fte r use in the United States. vaccination, the child sustained severe and irreversible neurological damage. Al though Lederle included a w arning in its package, this warning was never communi cated to the parents. The doctor testified that the warning was adequate to apprise him of the risks inherent in the vaccine. The plaintiffs also seek punitive damages under Texas law, alleging th at the defend ants recklessly, knowingly, and willfully failed to warn adequately of possibly se vere adverse reactions to their product and to rectify the product's dangerous design. The warning stated: Lederle maintains th at the Hurleys' ADVERSE REACTIONS claims are preempted by federal laws that promote widespread vaccination. Lederle Neurological disorders such as encephal opathy possibly due to the pertussis com ponent have been reported to occur rare ly following the injection of this product also argues th at its warning was adequate, and th at the learned intermediary doctrine applies, so th a t once it had warned Dr. Lanier, it had satisfied its duty. and they may be fatal or re su lt in perm a nent damage to the central nervous sys tem. II The district court granted partial summa Routine immunization should be post ry judgm ent in favor of the defendant, poned or avoided in patients with acute holding th a t federal laws, such as the Fed infections or a personal or family history eral Food, D rug and Cosmetic Act of neurological disturbances. ("FDCA"), 21 U.S.C. 301 et seq., and the James Hurley III and his parents ("H ur ley") brought this diversity action, basing their claims on the Texas law of negligence (alleging a failure to warn adequately and a failure to design the product properly), warranty (alleging breach of an express and implied w arranty that the product would not injure the user in normal use), and strict products liability (alleging the Public Health Service Act ("PHSA"), 42 U.S.C. 247b and 262, and their attendant regulations, preempted any state law claims based on the inadequacy of Lederle's DPT product warning as well as any claims based on Lederle's defective design of the DPT vaccine. Moreover, the district court held under the Texas "learned inter mediary" doctrine that the m anufacturer production and m arketing of an unreason had a duty to warn the prescribing physi ably dangerous product). The H urleys cian only, ra th e r than the patient or his maintain th a t the drug was unreasonably parents. The district court also held that dangerous because there are alternatives Lederle's product w arning w as adequate to the "whole cell" pertussis vaccine cur "as a m atter of law " because the prescrib rently in use in Europe and Japan. The ing physician, Dr. Lanier, testified th a t he plaintiffs contend th a t studies of these al- found it adequate. The plaintiff appeals. 1. The diptheria and tetanus components are "toxoids": bacterial toxins artificially modified to eliminate their disease-causing potential. These virtually never cause serious adverse re actions. The pertussis component of the de- fendant's DPT vaccine, however, Is a "whole cell" vaccine: it contains, in an inactive state, all of the components of the pertussis cell. Ad verse reactions to this component are more common. n .o 863 FEDERAL REPORTER, 2d SERIES III Parke-Davis & Co., which found preemp. A. Hurley first challenges the district court's decision that federal law preempts his state law tort claims. The concept of preemption has its roots in the supremacy clause: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the su preme law of the Land___" United States Const, art. VI. There are basically two types of preemption, express and implied. tion, and upon which the district court in this case relied, subsequently withdrew and reversed his opinion to find no preemption in the light of the Supreme Court's analysis in Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985)'. Hillsborough concerned the preemptive ef fects of laws of the same type as those in issue here: FDA testing and approval of medical products. Hillsborough County v. Medical Labora i l l As a matter of law, the district tories, Inc., 471 U.s.707, 712-14, 105 S.Ct. court's grounds for announcing such a rule 2371, 2374-76, 85 L.Ed.2d 714 (1985). Led- cannot survive analysis. Although, as we erle's argument and the district court's rul shall later see, there are some instances in ing are based on the contention that, with which state law may conflict with individu out relief from state law products liability al federal laws or regulations, Lederle's for the pertussis vaccine, manufacturers of arguments and the district court's holding the whole cell vaccine will raise prices sub are so broadly phrased as to preempt all of stantially or withdraw from the market. state products liability law for the manu Thus, Lederle argues and the district court facture and distribution of the pertussis ruled, preemption of state law products vaccine. Neither the Food, Drug and Cos liability is implied by the federal scheme to metics Act nor the Public Health Service encourage vaccination. Act explicitly preempts state law. Courts Although the district court arrived at its should be reluctant to find that federal law holding after careful and thoughtful con implicitly preempts state law. Hillsbor sideration, we must conclude that its hold ough, 471 U.S. at 714, 105 S.Ct. at 2375. ing is flawed. To date, the great majority They may do so only "where the scheme of of United States district courts which have federal regulation is sufficiently compre addressed this issue have ruled against pre hensive to make reasonable the inference 5 emption.2 Significantly, the judge who that Congress 'left no room' for supplemen yO wrote the original opinion in Morris v. tary state regulation" or "where the field 2. The following district court opinions have found against preemption: S m ith v. Wyeth Lab oratories, Inc., No. CA-84-2002, slip op. (S.D. W.Va. Aug. 21, 1986): M ilam v. Lederle Labora tories Division o f Am erican Cyanam id Co., No. CA-4-85-92-K, slip op. (N.D.Tex. Oct. 15, 1986) ; Jeski v. C onnaught Laboratories, Inc., No. A-84-CA-395, slip op. (W.D.Tex. Dec. 18, 1986); MacGillivray v. Lederle Laboratories Division o f Am erican C yanam id Co., 667 F-Supp. 743 (N.D. N.M. 1987); M orris v. Parke-Davis dr Co., 667 F.Supp. 1332 (C.D.Cal. 1987); K nudsen v. Con naught Laboratories. 691 F.Supp. 1346 (M.D.FIa. 1987) ; M artinkovic v. Wyeth Laboratories, 669 F.Supp. 212 (N .D.lll. 1987); Koehler v. Wyeth Laboratories, No. 85-284-C (S.D.Ind. Sept. 8, 1987) [1987 WL 47831); School v. Lederle Lab oratories and Connaught Laboratories, Inc., No. Civ. 85--409-TUC-RMB, slip op. (D.Ariz. Nov. 25, 1987); Percival v. A m erican C yanam id Co., d /b /a Lederle Laboratories, No. Civ. 85-2671-P, slip op. (D.Okla. Nov. 25,1987) [1987 WL 46954); Patten v. L ed erk Laboratories, 655 F.Supp. 745 (D.Ulah 1987); Wack v. Lederle Laboratories, 666 F-Supp. 123 (N.D.Ohio 1987); G raham v. Wyeth Laboratories, 666 F.Supp. 1483 (D.Kan-1987); Foyle v. Lederle Laboratories, 674 F.Supp. 530 (E.D.N.C.1987). Several state courts have also found no feder al preemption: Shepherd v. Lederle Laborato ries, No. 85-20330 (Cr.Ct. Broward County, Fla., Feb, 3, 1988); D uncan v. C onnaught Laborato ries, Inc., No. 86-CVS888 (Sup.Ct. Columbus County, N.C., March 24, 1988); Reed v. Con naught Laboratories, 1426 Civil o f 1985, (Court of Common Pleas, Monroe Co., Pa., Dec. 3, 1987). Although the district court in Abbott v. Ameri can Cyanamid, No. 86-0857-A, mem- P(E.D.Va. March 9, 1987), ruled that federal law preempted state tort remedies for DPT vaccina tion injuries, the Fourth Circuit recently re versed that decision, using reasoning which closely resembles our own. 844 F.2d H08 (1988). ZSG HURLEY v. LEDERLE LAB. DIV. OF AMERICAN CYANAMID 1177 C ite as 863 F.2d 1173 (5th Cir. 1988) is one in which 'th e federal in te rest is so tive to the whole-cell vaccine, "the scheme dominant th at the federal system will be of federal regulation" in this case is to assumed to preclude enforcem ent of state encourage vaccination with the whole-cell laws on the sam e s u b je c t.'" Id. a t 713, vaccine in particular. We cannot accept ]05 S.Ct. a t 2374.3 FDA regulation does this assum ption because the FDA is a pas not generally preem pt stricter s ta te law sive agency, it considers w hether to ap standards for medical products. Id. at prove vaccine designs only if and when 717-22, 105 S.Ct. a t 2377-80. Moreover, m anufacturers come forw ard with a pro this and other federal courts have already posal. See Osburn, 825 F.2d a t 912. Thus, ruled that FDA regulation does not the absence of FDA-approved alternatives preempt the types of state law duties which are the basis of th e plaintiffs' claims: the duty to w arn of product risks, e.g. Osbum v. A n c h o r Laboratories, In c., 825 F.2d 908, 911-12 (5th Cir.I987), and the duty not to place unreasonably dangerous products into commerce. See, e.g., d istrict court cases discussed in note 2 above. I t is true in theory th a t a policy-maker could rationally decide to relieve pertussis vac cine m anufacturers of liability for product defects to ensure a reliable supply of the vaccine or to lower its cost. N onetheless, because the absence of products liability may discourage vaccine use by increasing to the whole-cell vaccine does not indicate FDA disapproval of any such alternative. There is no basis for finding a federal interest in a particular form of the pertus sis vaccine. Lederle also argues th at the Public Health Service Act and its attendant regu lations represent a pervasive federal scheme, and as such, preem pt state law products liability for vaccine m anufactur ers. As Justice M arshall explains in H ills borough, this argum ent is over inclusive: As a result of their specialized functions, agencies norm ally deal with problem s in quality uncertainty and forcing users to far more detail than does Congress. To bear the cost of any adverse reaction to infer preemption whenever an agency vaccination, the ultim ate effect on vaccina deals with a problem comprehensively is tion levels is too uncertain fo r a court to virtually tantam ount to saying th at intrude into w hat is essentially a policy whenever a federal agency decides to question. Moreover, it is not clear th a t the step into a field, its regulations will be cost of compensating children injured by exclusive. the vaccine would drive vaccine m anufac turers from the business; the m anufactur ers may be able to raise prices and pre serve their profit margins. Because the vaccine price is paid by the federal govern ment, this would make the vaccination pro gram a greater burden on the federal fisc, but it would not discourage parents from having their children vaccinated. Accord ingly, the decision to preem pt sta te law products liability would be a difficult one for a policy-maker and it is not appropriate for us to assume th at decision has been made based on such inconclusive evidence. 105 S .C t a t 2377. Thus, the Suprem e Court has hesitated to infer such preemp tion. For example, in Silkw o od v. KerrM cG ee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984), the Suprem e Court found th at the highly regulated scheme established by the Atomic E nergy Act of 1954 did not implicitly preem pt sta te to rt law liability for nuclear power plant acci dents. If the comprehensive and intricate plan of AEA regulation does not implicitly preem pt state to rt law by taking over the entire field, there is no reason to think th at Congress intended the PHS vaccination Lederle arg u es th at, because the FDA program it approved in 1962, however "ag has not approved m arketing of any altern a gressive" it m ight be, to include--by impli- 3. Even where Congress has not completely dis placed stale regulations, specific state laws will be preempted (1) when simultaneous com pli ance with the requirements of federal and slate law is impossible, or (2) when com pliance with slale law "stands as an obstacle to the accom plishment and execution of the full purposes and objectives of Congress." Id. at 713, 105 S CI. al 2375. 11 863 FEDERAL REPORTER, 2d SERIES cation--a holiday from state products liabil ity law for vaccine manufacturers. Finally, we believe that any case for pre emption is doomed by the National Child hood Vaccine Injury ["NCVI"] Act of 1986, 42 U.S.C. 300aa-33. Although the NCVI Act was passed after this case was filed, it is relevant as proof that Congress intends no preemption of the state law lia bility of vaccine manufacturers. The NCVI Act clearly states that state law remedies apply to the manufacture and sale of vaccines and it even makes recovery easier for injured consumers. In sum, it is possible to construct sound policy arguments in favor of preemption in this case, but there is virtually no indica tion in the relevant law that Congress or the FDA explicitly or implicitly accepted them. whether the manufacturer warned the proper party, since it is settled that the manufacturer did provide a warning in the package it sent to Dr. Lanier. Even if it does apply, however, the question may re main whether the warning adequately ap prised Dr. Lanier of the risks attending the DPT vaccine. See Part C, infra. (Dr. Lanier testified that he considered the warning adequate, but this testimony does not dispose of the question. Although his testimony is competent on the issue, the adequacy of the warning is not a matter that can be conclusively resolved solely on the basis of the administering physician's opinion.) If the learned intermediary doc trine does not apply, the general rule ap plies that the ultimate consumer must be warned, in this case the parents of James Hurley III. [3] We are convinced that on the facts B. of this case the mass immunization excep [2]____Next we consider whether the doc tion carved out in Reyes v. Wyeth Labora trine of the learned intermediary applies in tories, 498 F.2d 1264 (5th Cir.1974), is not this case. It is clear that this doctrine applicable. Unlike Reyes, here the child's applies when a patient receives a drug or personal physician prescribed the shot, and vaccination through a doctor who weighs the vaccine was administered under the the risks and benefits, and makes the deci supervision of the physician in his office by sion to administer i t In such a case, the his nurse. In short, there is no question fact that the manufacturer has adequately whatsoever but that a patient-physician re warned the prescribing physician will pro lationship existed before and at the time tect it from liability to the patient for fail the immunization was given. Indeed, Dr. ure to warn. Reyes v. Wyeth Laborato Lanier testified that he had actually exam ries, 498 F.2d 1264 (5th Cir.1974). The ined the child. Moreover, the Hurleys ad doctrine becomes inapplicable, however, mitted in their complaint that the vaccine when vaccines are used in mass immuniza was administered under the direction and tion programs "where no individualized control of Dr. Lanier. medical judgment intervenes between the manufacturer . . . and the ultimate consum er___ [In such a case,] it is the responsi bility of the manufacturer to see that the warnings reach the consumer, either by giving the warning itself, or by obligating the purchaser to give the warning." Id. at 1276. Although the Hurleys must acknowledge these basic facts, they contend that the vaccination took place in a "clinic-like" at mosphere where a nurse administered the vaccine as a routine matter and the pre scribing physician did not see the patient at the time of vaccination and, in fact, was not even in his office. Furthermore, the Hur We can make several observations relat leys argue that there is no evidence before ing to the doctrine as it affects this case. us that Dr. Lanier made an intervening First, the learned intermediary doctrine re professional judgment whether to adminis lates only to the issue of whom the manu ter the vaccination to James Hurley III; facturer warned. It does not govern the after all, they argue, it is this assumption adequacy of the warning. The doctrine, if of an intervening professional judgment it applies, will foreclose any question that justifies the failure to warn the con- 9-53 HURLEY v. LEDERLE LAB. DIV. OF AMERICAN CYANAMID H 7 9 Cite as 86} F J d 1173 (5th Clr. 1988) sumer directly, see Reyes, at 1276, and proved and required by the FDA. This is there is no basis for such an assum ption the one question in this case for which the here. defendants' argum ents on preemption are The Hurleys' argum ents, however, m ust compelling; however, they are not airtight. be rejected in the light of our opinion in In the area of approving w arnings, al Sumyze v. M cN eil Laboratories, 807 F.2d though the FDA takes an active role in 464 (5th Cir.1987). In Su.ayze, although designing th e warning, it rem ains a p artial the surgeon was present, he did not in ter ly passive agency. T h at is, it accepts infor vene or otherwise make any professional mation given by m anufacturers proposing judgment w hether an anesthetic should be the licensing of a particular vaccine, and given, or in w hat dosage, to a patient about determ ines a proper w arning based upon to undergo surgery. The patient ultim ate the inform ation provided. 21 C.F.R. ly died as a re su lt o f an overdose. N ever 601.2, 601.12, 601.25. A sta te law d eter theless, because the physician-patient rela mination on this issue should not be inter tionship existed, and because the doctor jected to overrule the decision of the FDA. had thus assumed the role of learned inter Such a procedure would place vaccine man mediary, the fact th at he had made no u fa ctu rers in a position where they could individualized judgm ent did not bar the ap not comply with both obligations. The plication of the learned interm ediary doc trine to relieve the m anufacturer of liabili ty. We held: "D rug m anufacturers m ust FDA extensively regulates the contents and wording of these product inserts. See, e.g., 21 C.F.R. 1 and 201; 50 Fed.Reg. adequately warn physicians of the potential 51.108 (1985). A m anufacturer m ust first side-effects of their prescription drugs; provide all the relevant information to the thereafter, the physician, with his special FDA, which then determ ines a warning it knowledge of the patient's needs, assum es deem s appropriate. The m anufacturer is the burden of presiding over the patient's required to print th a t precise w arning in its best interests." Id. a t 472. This holding product insert. Id. M ost im portant, the makes clear th at Lederle satisfied its duty m anufacturers cannot change the language to the consum er when it w arned his physi in the product in sert w ithout FDA approv cian.C. al. 21 C.F.R. 601.12. It would be pat ently inconsistent for a state then to hold C. the m anufacturer liable for including th at The next question we m ust address con cerns the adequacy of the warning Dr. Lanier received. Once again, if the district court were to decide th at the learned inter mediary doctrine does not apply, the ques tion of the adequacy of this warning may ultimately be moot because it was not giv en to the proper party. In case the learned intermediary doctrine does apply, we turn now to consider the issues th a t will be before the district court on the adequacy of the warning. 14] The defendants propose th a t the precise warning when the m anufacturer would otherwise be liable for not including it. Thus, assum ing th at the FDA has pro cessed all the relevant and available infor mation in arriving a t the prescribed warn ing, its decision as to the proper wording m ust preem pt by implication th at of a state. Specifically, such a case would fit one o f the scenarios described in K V U E , In c. v. A u s t in Broadcasting Corp. as indi cating preemption: "the state statute actu ally and directly conflicts with federal law." T09 F.2d 922, 931-32 (5th Cir.1983). question of adequacy of the w arning is [5] A factual issue rem ains, however, preempted by federal law since the w arn as to w hether the m anufacturer provided ing used was FDA approved. The preemp the FDA all the necessary and available tion they su g g est is implied preemption; in inform ation on which to base the warning. essence, they argue th at state law would Thus, the only question th at can be impermissibly conflict with federal law if it presented to the jury consistent with the required a w arning different from th a t ap- federal regulatory scheme is w hether the ? 3 15 0 ? Jdc: CD or H* O ( _JD <a5 863 FEDERAL REPORTER, Zd SERIES manufacturer withheld, either at the time with the remaining claims only under its the FDA decided the content of the warn preemption analysis. Since we have con ing, or since then, information that would cluded that state product-liability law is not have changed the FDA's decision. We be preempted, we remand for further proceed lieve that this issue should be presented to ings not inconsistent with this opinion. the jury in the form of special interrogato ries, questioning whether and what infor REVERSED AND REMANDED. mation the manufacturer withheld from the FDA, if any, and whether possession of this information would have materially al (Vow fily'fKwusvntitO tered the content of the FDA's warning. This special procedure is justified by the federal interest in encouraging manufac turers to produce vaccines, in that those manufacturers need some assurance that if they follow certain prescribed procedures, such as including an FDA-approved warn ing, they are complying with the law. Mario Colin McCONNEV, Plaintiff-Appellee, v. The CITY OF HOUSTON, and Lee P. D. Brown, individually and in his official Finally, we note that the learned interme diary doctrine applies only to the inade capacity as Chief of Police of the City of Houston, Defendants-Appellants. quate warning claims; it does not address design defects. Abbot v. American Cyanamid, 844 F.2d 1108 (4th Cir.1988). The district court dealt with the design defect No. 87-2704. United States Court of Appeals, Fifth Circuit. issues only under its discussion of preemp tion. Since we have held that preemption Jan. 23, 1989. does not apply in this case, we must re mand the design defect claims to the dis trict court.4 IV In conclusion, we hold that federal law does not preempt state products liability law governing vaccinations. We therefore remand the Hurleys' claims to the district court for further consideration. With re spect to the adequacy of the warning, the record is insufficient for us to decide, since the adequacy of the warning must be deter mined in the light of whether Lederle with held material information from the FDA. Otherwise, the FDA-approved warning is sufficient Finally, the district court dealt Arrestee for public intoxication brought civil rights suit against city and its chief of police. United States District Court for the Southern District of Texas at Houston, Carl 0. Bue, Jr., J., entered judg ment on jury verdict in favor of arrestee, and city appealed. The Court of Appeals, Garwood, Circuit Judge, held that: (1) city chief of police was entitled to qualified immunity from liability, but (2) some evi dence supported finding that city had un constitutional policy of detaining warrant less arrestee for public intoxication for four hours even after determining that ar restee was sober and had not been intoxi cated, and thus, interests of orderly proce dure were not sufficiently outweighed to justify review and reversal on sufficiency of evidence grounds notwithstanding total 4. Although it would seem likely, we leave it'to ' the district court to consider whether a parallel analysis to that applied in the warning context should apply to design-defect claims. That is, although FDA regulation has not preempted the entire field of design defect, assuming that the FDA processed all necessary and available data, does FDA approval preempt a claim that the product in design is unreasonably dangerous? We do not decide this question since we do not have the benefit o f a district court's reasoning on it. We wish to make clear, however, that our holding against general preemption does not necessarily exclude the possibility of such a specific preemption. McCONNEY v. CITY OF HOUSTON Cue u 63 F_2d 1180 (Slh Clr. 198) 1181 failu re o f city to raise insufficiency o f evi 5. A rre st =70(1) dence a t trial. B a il =42 A ffirm ed in p a rt and rev ersed in p art. Policy requiring continued detention of G oldberg, Circuit Judge, filed a special ly co ncurring opinion. public intoxication arrestee and denial of otherw ise available bail a fte r determ ination beyond reaso n ab le d o u b t th a t a rre s te e is in fact not intoxicated and th a t probable cause no longer exists raises obvious con stitutional concerns, b u t arrestee is not 1. C ivil R ig h ts <=13.8(4) constitutionally required to be released im City chief o f police w as entitled to m ediately upon ascertain m en t th a t he is qualified im m unity from liability in civil clearly n o t intoxicated; it is perm issible fo r rights action b ro u g h t by w arrantless arres detaining authority to take reasonable tim e tee who claimed th a t he w as detained a t fo r adm inistrative processing, retu rn of city jail fo r public intoxication a fte r it be property, and m aking bail if appropriate. came known th a t he was not drunk, but, ra th e r, w as su ffe rin g from insulin shock; 6. F e d e ra l C o u rts =625 no evidence indicated th a t police chief had C ity 's claim th a t special in te rro g a to ry any personal involvem ent w ith events re as to te st for unconstitutionality of city specting arrestee or th a t he had any knowl policy w ith reg ard to detention o f w arran t edge o f h er connection with policy o f de less public intoxication arrestee w as not ta in in g all th o se a rre s te d fo r public intoxi p ro p e rly w orded w as w aived on appeal, in cation fo r a t le a st fo u r hours. 42 U.S.C.A. civil rig h ts action b ro u g h t by a rre stee 1983. ag ain st city, w here city m ade no objection a t trial to form of interrogatory or failure 2. F e d e ra l C o u rts =625 to subm it any factual issue w ith respect to City, which failed to object to special such issue. Fed.R ules Civ.Proc.Rule 49(a), in te rro g ato ry a t trial, in civil rig h ts action, 28 U.S.C.A. would no t be perm itted to raise objection for first tim e on appeal; answ ers to inter 7. F e d e ra l C ourts =752 ro g ato ries w ere n o t in irreconcilable con A lthough evidence w as insufficient to flict. 42 U.S.C.A. 1983. establish th a t city had unconstitutional poli 3. C ivil R ig h ts =13.7 cy of detaining w arrantless arrestee for public intoxication for four hours even af Sufficiently num erous prior incidents te r determ ining th a t arrestee w as sober of police m isconduct m ay tend to prove and had no t been intoxicated, th ere w as n o t custom and consent to th a t custom by m u total absence of any evidence to support n icipality's policy m a k e rs, th u s p e rm ittin g s u c h fin d in g by d is tric t c o u rt, and th u s, m unicipality to be held liable under section in terests of orderly procedure w ere not 1983; isolated instances, on o th er hand, are sufficiently outw eighed to ju stify review inadequate to prove "know ledge and acqui and reversal on sufficiency of evidence escence" by policy m akers. 42 U.S.C.A. g ro u n d s notw ithstanding total failure of 1983. city to raise insufficiency o f evidence a t See publication Words and Phrases trial, in civil rig h ts su it b ro u g h t by w ar for other judicial constructions and definitions.4 ran tless arrestee for public intoxication. U .S.C .A . C on st.A m en ds. 4, 14; 42 U .S.C.A. 4. A rre s t =70(1 ) Person may be constitutionally de | 1983; Fed.R ules Civ.Proc.Rule 49(a), 28 U .S .C .A . tained fo r a t least fo u r or five hours fol lowing law ful w arrantless a rre s t for public intoxication w ithout responsible officers Richard L. A nderson, L arry Cohen, B ar having affirm ative duty during th a t time to bara Toby B aruch, A sst. County A ttys., inquire fu r th e r a s to w h e th e r th a t p e rso n is J e r r y E. S m ith , C ounty A tty ., H o uston, intoxicated, even if requested to do so; Tex., fo r defendants-appellants. however, once responsible officer actually does ascertain beyond reasonable doubt th a t one who h as been so arre sted is in fact M itchell A. Seider, B ruce V. G riffiths, H ouston, Tex., for plaintiff-appellee. not intoxicated, arrestee should be re A ppeal from the United S tates D istrict leased. U .S.C.A . C o nst.A m ends. 4, 14. C ourt for the Southern D istrict of Texas. *^52 704 FEDERAL SUPPLEMENT junction requiring the defendants to permit display of the sign for a period of two weeks and (2) a declaration stating that the plaintiff and all citizens have the right to use the State House grounds for peaceful free expression and assembly and specify ing the constitutionally permissible stan dards under which the defendants may reg ulate the exercise of this rig h t The Court considers separately the two forms of relief sought I. [1] F ir s t the plaintiff asks th a t the C ourt declare th a t the plaintiff has a present rig h t to display the fixed sign on the State H ouse grounds as it sought to do w hen it applied fo r a perm it in M ay 1987. The C ourt declines to issue such a declara tion because it finds no such entitlem ent The C o u rt previously held th a t th e policy of Ju n e 9, 1987, prohibiting all fixed signs on the State H ouse grounds is constitution al and th a t its im plem entation does not deprive the plaintiff of any constitutional r i g h t See O rd e r filed N o v e m b er 10, 1988, 704 F.Supp. 644. Im plicit in th a t holding is th e fin d in g th a t a fte r J u n e 9, 1987, nei th er the plaintiff nor any other party has a constitutional rig h t to erect a fixed sign on the State H ouse grounds. Thus, the plain tiff is not now entitled to display its sign on th e S ta te H o u se g ro u n d s and th e C o u rt will not order the defendants to perm it such a display. The appropriate rem edy for any constitutional deprivation the plaintiff suf fered before Ju n e 9, 1987, is a claim for money dam ages which the plaintiff has pressed to final resolution. Accordingly, the C ourt denies the p lain tiffs m otion as it relates to th e erection and display of the fix ed sig n .I. II. N ext the C ourt considers the p lain tiffs motion in so far as it asks the C ourt to de clare th a t all citizens have a rig h t to peace fully assem ble and express them selves on the State H ouse grounds and to specify the constitutionally perm issible standards un der which the defendants m ay regulate th at right. The plaintiff urges th at such a declaration is particularly appropriate in lig h t of a recently enacted South Carolina s ta t u te g o v e rn in g ex p re ssiv e activities on th e S tate H ouse grounds and authorizing th e prom ulgation o f reg u latio n s applicable to such activities. Section 10-1-30 o f th e S outh Carolina Code o f Law s, en acted la st year, provides as follows: Use o f S ta te H o u se L obbies, steps and other public buildings and grounds. The D irector of the Division of General S erv ices o f th e S ta te B u d g e t and Control B oard m ay authorize the use of the State H ouse lobbies, the S ta te H ouse steps and g ro u n d s, an d o th e r public buildings and g ro u n d s in accordance w ith regulations prom ulgated by the board. The director shall obtain th e approval of th e Clerk ol th e S e n a te b e fo re a u th o riz in g any use of th e G re s s e tte B uilding and shall obtain th e ap p ro v a l o f th e C lerk o f th e H ouse of R e p re s e n ta tiv e s b e fo re au th o riz in g any use o f th e B latt Building. The regula tions m u s t contain provisions to insure th a t th e public h e a lth , s a fe ty , and wel fa re w ill be p ro te c te d in th e u se of the a re a s including re a so n a b le tim e, place, and m an n er restrictio n s and application periods b efo re use. I f su fficien t mea sures cannot be taken to protect the pub lic h e alth , s a fe ty , and w e lfa re , the di re c to r s h all d en y th e re q u e ste d use. O th e r re s tric tio n s m ay b e im posed on the u se o f th e a re a s a s a re n e c e s sa ry fo r the c o n d u c t o f b u sin e ss in th o se a re a s and the m aintenance of the dignity, decorum, and aesthetics of the areas. The South C arolina B u d g et and Control B oard is p resen tly in th e process of pro m ulgating regulations fo r use of the State H o u se g ro u n d s in a cco rd an ce w ith this s ta tu te . T h e p la in tiff now a sk s th a t this C o u rt issu e a d e claratio n s e ttin g fo rth the legal requirem ents th a t th e State m ust sat isfy in e sta b lis h in g re g u la tio n s u n d e r Sec tion 10-1-30 and in reg u latin g expression until such tim e as reg u latio n s a re in force. W hile it is n o t w ithin th e province of the C ourt to d ra ft reg ulations fo r the State of South Carolina, th e C ourt nevertheless deem s it appropriate to se t forth the gener al stan d ard s, established u n d er existing law , w hich th e S ta te o f S outh Carolina m u s t follow in re g u la tin g expressive activi ty on the State H ouse grounds. -0 SS6 J* c TARALLO v. SEARLE PHARMACEUTICAL, INC. c u e as 704 F.Supp. 65S (D.S.C. 1988) G5 [2, 3] The first am endm ent protects the ripht of individuals to express them selves Jeanette Renee TARALLO. Plaintiff, on the S ta te H o u se g ro u n d s, su b jec t to th e government's rig h t to en fo rce re g u la tio n s of time, place and m an n er which are con tent neutral, are narrow ly tailored to serve v. SE A R L E PH A R M A CEU TICA L, INC.. d / b / a G.D. S earle & C om pany, a significant state in terest and leave open D efendant. ample, a lte rn a tiv e ch an n e ls o f com m unicalion. Sec Perry E d u ca tio n a l A s s 'n v. Pcr- Civ. A. No. 8:86-3162-17. ru Local E du cator's A s s '?i, 460 U.S. 37, 103 S.Ct. 948, 74 L .E d.2d 794 (1983); U n it ed States r. O 'Brien , 391 U .S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Edw ards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963). T hus, an y licensing United S tates D istrict Court, D. South Carolina, A nderson Division. D ec. 16, 1988. process developed by the defendants m ust be content n e u tral and any delay caused thereby m ust be narrow ly tailored to a P atient brought action ag ain st m anu factu rer of intrau terin e device. On m anu legitimate g o v e rn m e n t in te re s t u n re la te d fa c tu r e r 's m otion fo r su m m a ry ju d g m e n t, 10 the c o n te n t o f th e e x p ressio n . See \ A A C P , Western Region v. C ity o f R ich mond, 743 F.2d 1346 (9th Cir.1984); Rosen V. Port o f Portlan d, 641 F.2d 1243, (9th Cir.1981); York v. C ity o f D an ville, 207 Va. 665, 152 S.E.2d 259 (1967). In addition, any such schem e m u st afford applicants procedural s a f e g u a rd s w h e re b y (1) th e .the D istrict Court, Joe F. A nderson, Jr., J., held th a t: (1) g en u in e issu e o f m a te ria l fa c t existed as to w hether the device w as a d ru g o r a device; (2) claim w a s no t preem pted by federal law; and (3) claim w as not barred by the com m erce clause. Motion denied. State will b e a r th e b u rd e n o f in s titu tin g judicial proceed in g s, (2) an y r e s tr a in t p rio r to judicial review is only fo r a b rie f speci fied time and fo r th e p u rp o s e o f p re s e rv in g the statu s quo and (3) a pro m p t and final judicial determ ination is assu red . Sou th eastern Prom otions, L td . v. Conrad, 420 U.S. 546, 95 S.C t. 1239, 43 L.Ed.2d 448 1. D ru g s a n d N a rc o tic s =3 D efinitions of d ru g s and devices in the Federal Food, D rug, and Cosmetic Act are m utually exclusive. Federal Food, D rug, a n d C osm etic A ct, 201(g)(1)(C), (hX3), a s am en d ed , 21 U .S.C .A . 321(g)(1)(C), (h)(3). (1975); Freedm an v. M arylan d, 380 U.S. 51, 85 S.Ct. 734, 13 L .E d.2d 649 (1965); see also R iley v. N a tio n a l Federation o f the Blind o f N .C ., In c., -- U .S .------ , 108 S.Ct. 2667, 101 L .E d.2d 669 (1988); A Q u a k e r' Action Group v. M orton, 516 F .2d 717 (D.C.Cir.1975). A n y c o n stitu tio n a l re g u la tion of e x p re ssio n on th e S ta te H o u se grounds m u st be effected in accordance with these principles. 2. F ed eral Civil P ro c e d u re =2515 Genuine issue of m ateria! fact existed as to w hether intrauterine device w as a d ru g o r a device for purposes of ability of state to impose labelling requirem ents oth e r than those required by the Food and D rug Adm inistration. Federal Food, D rug, an d C osm etic A ct, 201(gXU(C), <hX3), 521, a s am ended, 21 U.S.C.A. As all of th e p la in tiff's claim s h a v e now 321(g)(1)(C), (h)(3), 360k. been resolved, th e C o u rt d irects th a t final judgment be en tered in this action. IT IS SO O R D E R ED . 3. S tates 0=18.3 Preem ption doctrine grow s out of su prem acy clause o f th e C onstitution. U.S. C.A. C onst. A r t 6, cl. 2. 4. S ta te s =18.5, 18.7 Implied preem ption occurs either by federal regulatory scheme being so perva- "'D j:s r-- =!? D \r\ o "XI O (z: - -i r" r~ t :j ;? 7* 704 FEDERAL SUPPLEMENT A sive a s to leave no room fo r su p p le m e n ta ry 11. C o m m e rc e =8(1) state regulation or by state law conflicting W hen c o n g re ss h a s n e ith e r impliedlv w ith fe d e ra l law , m ak in g com pliance w ith n o r e x p re ssly p re e m p te d c au se o f action both law s eith er im possible or fru stra tin g then, by allow ing actions based on state to the purpose of the federal m andate. law , it h as d e te rm in e d th a t uniform itv js 5. S ta te s =18.15 n o t p a ra m o u n t, and allow ing s ta te lavclaim s to go fo rw ard does n o t burden inter T here is a presum ption ag ain st implied sta te com m erce. U.S.C.A. Const. Art. ] p re e m p tio n o f s ta te la w s re g a rd in g h e alth 8, cl. 3. and safety issues. 6. S tates =18.9 A lthough federal regulations and sta t u tes are treated similarly for purposes of expressed preem ption, preem ption based on com prehensiveness alone is less likely to be found in the case o f regulations. S tev en M. K ra u se , Epps, K ra u se & Nj. cholson, A nderson, S.C., fo r plaintiff. H. Sim m ons T a te , J r., J o h n C. Bruton, J r., Boyd, K now lton, T a te & F inlay, P.A., C olum bia, S.C., L a u ra A. K a ste r, Chicago, 111., fo r d e fe n d an t. 7. S tates =18.3 Preem ption is less likely if its imposi tion leaves the plaintiff w ithout available legal m eans of redress. 8. D ru g s a n d N a rc o tic s =18 "Learned interm ediary defense" rests on the sufficiency and clarity of w arnings given to th e trained, licensed physician; if th e doctor receives a w arning which fully com ports w ith the Food and D rug Adminis tration legal standards, doctrine prevents recovery by a treated patient against the m anufacturer. See publication Words and Phrases for other judicial constructions and definitions. 9. D ru g s a n d N arcotics =20 S tates =18.65 P a tie n t's claim s a g a in s t m a n u fa c tu re r o f intrauterine device w ere not preem pted by federal law. Federal Food, D rug, and C osm etic A ct, 1-902, a s am ended, 21 U .S.C.A. 301-392.10 10. D ru g s a n d N a rc o tic s =20 S tates =18.65 P a tie n t's claim s a g a in s t m a n u fa c tu re r o f intrauterine device w ere not specifically preem pted by the w arning and design re quirem ents of the Food and D rug Adminis tration. Federal Food, D rug, and Cosmetic A ct, 1-902, a s am en d ed , 21 U .S.C.A . 301-392. ORDER JO E F. ANDERSON, Jr., D istrict Judge. This m a tte r is b e fo re th e c o u rt on de fe n d a n t S e a rle 's m otion fo r su m m a ry judg m en t p u rsu a n t to F ed .R .C iv.P . 56. Searle co n ten d s th e re is no fa c tu a l d isp u te that Ms. T arallo 's claim s are preem pted by vari o u s fe d e ra l s ta tu te s and re g u la tio n s. Two h e a rin g s h ave been held re g a rd in g this mo tion and extensive m em oranda and exhibits have been filed by each party. A fter a thorough review of the record, th e factual allegations and legal principles, the court h e re b y denies S e a rle 's m otion. Ms. Tarallo is seeking to recover dam ag es fo r injuries she allegedly sustained as a r e s u lt of u sin g S e a rle 's p ro d u c t, the Cop p e r 7 in tra u te rin e c o n tra c ep tiv e (Cu-7). On o r a b o u t M arch 5, 1979 Ms. T arallo was fitte d b y h e r physician w ith a C u-7. Ms. T a ra llo a lle g es sh e b ecam e violently ill on D ecem ber 6, 1980 and w as hospitalised w ith pelvic in flam m a to ry infection (P1D). P1D ultim ately rendered h er infertile. Ms. Tarallo relies on several legal theo rie s to s u p p o rt h e r claim : s tric t liability in t o r t (S.C.Code A nn. 1 5 -73-10 to--30 (1976), neg lig en ce, and b re a ch o f implied and ex p ress w a rra n tie s (S.C.Code Ann. 3 6 -2 -314 an d 36-2-315). S earle ad v an ces tw o preem p tio n a rg u m e n ts which it m aintains foreclose Ms. Tarallo from seek ing any redress here. 956 TARALLO v. SEARLE PHARMACEUTICAL, INC. Cite as 704 F.Supp, 653 (D.S.C. 1988) First. Searle relies on th is c o u rt's re a so n 801.430(d) (1988), w ith re sp e c t to the ta m ing in Stewart v. In tern ation al Playtex, p o n s p u rc h a se d an d u sed by his d a u g h te r. 672 F.Supp- 907 (D.S.C.19S7), to co n ten d 21 t'S C . 360k of th e Medical Device Amendments of 1976 (the A m endm ents) preem pts Ms. T a ra llo 's s ta te law claim s. [1] In this action Searle also relies on th e follow ing re le v a n t portion o f 21 U.S.C. 360k: This a rg u m e n t is p re d ic a ted on a fin d in g the Cu-7 is a device w ithin th a t statu to ry framework. Second, if th e C u-7 is deem ed No state . . . m ay establish . . . with re spect to a device . . . any requirement . . . w hich is d iff e r e n t from , o r in addition to be a d ru g r a th e r th a n a device, S earle to, any requirem ent applicable under this argues the federal Food and D rug Adminis ch ap ter to the device . . . which relates to tration (FDA) reg u latio n s governing the the safety and effectiveness of the de approval and sale o f the Cu-7 preem pt any vice. stricter state law requirem ents. See H u r ley r. Lederle Laboratories, 851 F.2d 1536 (5th Cir.1988). Finally, S earle co n ten d s an adverse jury verdict would violate the Com merce Clause of the U nited S tates C onsti tution by imposing an unreasonable burden upon its interstate trade. U.S. Const, art. I. 8, cl. 3. 1. The M edical D evice A m en d m en ts The court has previously recognized the preemptive effect of the regulations prom ulgated under the A m endm ents. Stewart, 672 F.Supp. a t 909. In Stewart, th e p lain tiff sought dam ages resulting from his d au g h ter's d e ath , allegedly c au se d b y h e r use of a tam pon m anufactured by the de fendant. The tam pon w as conceded to be a Class II device w ithin th e m eaning o f th e Amendments. The co u rt gran ted p artial summary judgm ent on behalf of the de fendant based on th e a u th o rity o f 21 U.S.C. 360k. The co u rt reasoned th a t to allow a jury to impose labeling requirem ents dif ferent from those required by the FDA 21 U.S.C. 360k (em phasis added). By its express term s 360k only applies to "medical devices" and not "prescription d ru g s." A device is "an in stru m en t . . . im plem ent . . . or other sim ilar or related article which is . . . intended to a ffe c t the stru ctu re or any function of the body of m a n ___ " 21 U.S.C. 321(h)(3) (as am end ed). A device does not carry ou t its p u r pose "th ro u g h chemical action within . . . th e body of m an . . . and . . . is n o t depend e n t upon being m etabolized" in order to ach iev e th e p u rp o se fo r w hich it is inten d ed. Id. C onversely, a d ru g is an article which is "intended to a ffect the stru ctu re or any function of the body of man . . . but [the category] does not include de v i c e s . . . . " 21 U.S.C. 321(g)(1)(C). By their definitions the term s are m utually exclusive. A. The C u -7 Approval Process W hen Searle applied for m ark et clear ance of the Cu-7 the FDA had the authori would vitiate th e A ct's p urpose o f settin g ty to re q u ire p re m a rk e t te stin g o f d ru g s uniform stan d ard s fo r m anufacturers. b u t no sim ilar ability to reg u late the intro Stewart, 672 F .Supp. a t 909. A s a r e s u lt du ctio n o f devices to th e public. T he FD A of this decision th e plaintiff could recover determ ined th e Cu-7 would be considered a under a theory of inadequate w arning only new drug. See S.Rep. No. 670, 93d Cong., if he showed P laytex deviated from th e 2d Sess. 5 (1973). T hree fa cto rs led to this labeling re q u ire m e n ts o f 21 C.F.R. conclusion: an exp an sion o f FD A p o w er,' I- The authority of the FDA over drugs was greativ expanded by the Court in United Stares V. Bacto-Unidisk, 394 U.S. 784, 89 S.Ct. 1410, 22 L.Ed.2d 726 (1969). In Bacto-Unidisk the Court determined the statutory definition of "drug" was far broader than the definition set forth by the medical profession. 394 U.S. at 793, 89 S.Ct. at 1415. It thus included products in a category greater than the traditional category of drugs ingested in or applied to the body and the diag nostic disk at issue was found to be subject to premarket regulations. Id. This decision sparked an intense debate as to whether all lUDs should be considered drugs or devices. See, e ft , Regulation of Medical Devices (Intra uterine Contraceptive Devices): Hearings Before a Subcommittee of the Committee on Government Operations, House of Representa tives 93rd Cong., 1st Sess. 146 (1973) (Devices Hearings), at 205-06 (letter from William Good rich, FDA Assistant General Counsel), 215 (Bu- 656 704 FEDERAL SUPPLEMENT recognition of previous safety problems arising out of intrauterine contraceptive (IUD) use and the metallic composition of the Cu-7. Devices Hearings, supra note 1, a t 208-9 (letter from Peter B. H utt, Assist an t General Counsel, Food, D rugs and P roduct Safety Division); 293 (statem ent of Dr. Jennings). The device IUDs already on the m arket were not reclassified a t that time for a number of reasons. Devices H earings, supra note 1, a t 211-12, 217-18 (Jennings), 260 (Hutt), 253-54 (memoran dum from L. Pilot), 208-09 (Hutt). A fter a three year process, in 1974 the Searle Cu-7 was approved by the FDA as a safe and effective drug. Marketing was thus allowed two years prior to the enact m ent of the Amendments. See D efend a n t's Exhibit 16, FDA Approval L etter (Feb. 24, 1974). In seeking approval, Searle was required to complete a seeming ly rigorous regulatory process including clinical investigations and submission of documentary evidence and proposed label ing requirem ents. See generally 21 C.F.R. 130 (1971). The Cu-7 differed from other IUD s in th at the inflammatory reaction within the body was enhanced by a small amount of copper wire coiled around the vertical limb of the IUD. See Battelle Memorial Insti tu te R eport 118-119 (A ugust 11, 1975). In exclusively plastic IUDs the action is caused by the plastic itself. Searle main tains th e general mechanism by which ei th er IUD achieves the contraceptive effect is identical and th at the Cu-7, like all IUDs, promotes contraception through an inflam m atory reaction, not through direct chemi cal or metabolic action. Searle arg u es the FDA's initial decision to classify the Cu-7 as a drug was merely an administratively convenient method by which the FDA could require its prem arket testing. The FDA recognized the copper in the IUD slowly dissolved in the body. Ms. Tarallo contends the drug classification was not an anomoly, as the copper in the Cu-7 interacted pharmacologically with the body tissue. Devices H earings, supra note 1, a t 209 (Hutt). B. The Effect o f the Amendments Two years a fte r approval of the Cu-7 the Am endm ents granted the FDA expanded authority over devices. The Amendments se t forth three classifications, for which different controls apply. 21 U.S.C. 360c Class 1 devices require general controls and the category includes item s such as dye and chemical solution stains, synthetic cell and tissue cultures, chromosome culture kits, tissue processing equipment, blood bank supplies and exam ination gowns. 21 U.S.C. 360c(a)(l)(A); 21 C.F.R. 864.. 1850, 864.2220, 864.2260, 864.3010, 864.9050, 880.6265 (1988). Class II devices are controlled through perform ance standards, such as labeling requirem ents. 21 U.S.C. 360c(a)(l)(B). Anesthetic gas masks, oxygen masks, tam pons, diaphragms, visual field laser instru m ents and eye m ovem ent m onitors are ex amples of Class II devices. 21 C.F.R. 868.5550, 868.5580, 884.5460, 884.5470, 884.5350, 886.1360, 886.1510 (1988). Class III devices m u st be approved prior to their being m arketed. P rem arket ap proval assures testing of those devices which pose "potential unreasonable r;sk[s] of . . . injury." 21 U.S.C. 360c(a)(l)(C). Included in this category are so ft contact lenses and associated a g en ts and solutions, obstetric data analyzers, and bone cement 21 C.F.R. 886.5925, 886.5928, 886.5933, 884.2050, 888.3027 (1988). It is im portant to note the distinctions between the classes and the amount of FDA involvem ent with each since the Steu'art reasoning would preem pt only that which is governed by the FDA. In other words, the preem ptive effect of 360k on a Class II device is n ot as broad as its effect on a Class III device, where any cause of action based on testing, labeling o r m arketing is preem pted by the FDA standards for p rem arket approval. In Stewart, the court only preem pted the im position of labeling requirem ents different reau of Medicine memorandum), 245 (state ment of Rep. Fountain), 249 (statement of Larry Pilot, Office of Medical Devices). 957 TARALLO v. SEARLE PHARMACEUTICAL, INC. 657 Clle u 704 F.Supi). 653 (D.S.C. 1988) from those set by the FDA. The question FDA continued to tre a t the Cu-7 as a drug of compliance remained open. 1UD regulated by the B ureau of Drugs. Vnder F cd .R .C iv .P . 56, sum m ary ju d g ment is appropriate if the pleadings, deposi tions. answers to interrogatories, and ad missions on file, together with the affida vits. if an>'i sh "' th at there is no genuine issue as to any m aterial fact and th a t the moving party is entitled to a judgm ent as a Searle maintains this consideration was not a formal agency construction of the Amendments but was exclusively a m atter of "adm inistrative consideration relating to the efficient carrying out of FDA's respon sibilities." See A ffidavit of Alexander M. Schmidt, M.D. (March 4, 1988). matter of law. Rule 56(c). The distinction between drug and device When the defendant is the moving party and the plaintiff has the ultim ate burden of proof on an issue, the defendant m ust iden tify the p arts of the record th a t demon IUDs "is unaffected by the revised defini tion of device found in the . . . Amend m en ts___ " 42 Fed.Reg. 23,772 (1977). Still regulated as drugs are IUDs which strate the plaintiff lacks sufficient evi incorporate "heavy m etals, drugs, or other dence. The nonmoving party, here the active substances to increase the contracep plaintiff, m ust then go beyond the plead tive effect, to decrease adverse reactions, ings and designate "specific facts showing or to provide increased medical acceptabili that there is a genuine issue for trial." t y . . . . " 38 Fed.Reg. 6137 (1973). Rule 56(e). See also Celotex Corp. v. CaIrctt, 477 U.S. 317, 106 S .C t 2548, 91 L.Ed.2d 265 (1986). In response to Dr. Schm idt's affidavit, Ms. Tarallo points to several Searle-generated exhibits. This literature at least rais C. Current Classification o f the C u -7 es a m aterial factual issue as to w hether There is no dispute the FDA initially the copper in the Cu-7 works to "increase classified the Cu-7 as a "new d ru g " in the contraceptive effect" of the IUD so as order that testing be completed before its to require its continued classification as a entry into the m arket. Searle rests its drug and render 360k irrelevant preemption argum ent on transitional lan In Searle's patien t brochure of 1971 guage of the Amendments which purports to reclassify new drugs as Class III de vices. Specifically, the new classification applies to any product which fits within the new definition of device (as se t fo rth above) and "for which an approved New D rug Application (NDA) was in effect on May 28, 1976." 42 Fed.Reg. 63,472 (1977); see also 21 U.S.C. 360j )(1). (Plaintiff's Exhibit 6) the company touted the "big difference between an ordinary IUD and the C u -7 ___ '' 1971 Brochure a t 3. Moreover, the brochure se t forth Searle's original claim th a t copper, not plastic, was the contraceptive agent of the Cu-7. 1971 Brochure a t 5. It suggested replacement of the IUD once the copper had worn out. Id. This assertion was not The provision also deems the device to be included in the revised brochure of 1975. preapproved as a device if previously ap Plaintiff's Exhibit 7. However, the new proved as a drug. 21 U.S.C. pam phlet did attrib u te the C u-7's superior 360j(/ )(3)(A)(i). The requirem ents se t by contraceptive propensities to the presence the Bureau of D rugs continue to apply to of copper in the IUD. 1975 Brochure a t 3. the "device until changed by the Secretary Adding copper to the plastic as found alone as authorized" by the statu te. 21 U.S.C. in the o ther IUDs resulted in the Cu-7 5 360j(/)(3)(A)(ii). being "alm ost as effective as the `pill'___ " Responsibility for the transitional prod Id. In addition a news release produced by ucts was to "gradually shift . . . from the Searle stated the presence of copper was Bureau of D rugs to the Bureau of Medical "a significant breakthrough in IUD re Devices a t a pace consistent with the avail search and developm ent." P laintiff's Ex ability of manpower and administrative and hibit 8. I t fu rth er claimed "a minute technical capabilities." 42 Fed.Reg. a t 63,- am ount of copper released daily enhances 472. Despite this procedural plan, the contraception" through "m edicated action." :x: <-> o (r : 5s f- 658' 704 FEDERAL SUPPLEMENT Id. (emphasis added). In a later news re lease, th e added copper is cited as m aking the Cu-7 different from inert or hormonal IU D s. Id. 1938, 21 U.S.C. 301 to 392 (FDCA). Hurley, 851 F.2d a t 1539. Searle contends preem ption should be implied because the D rug Am endm ents of 1962, Pub.L. No. 87_ These earlier assertions by Searle cer 781, 76 Stat. 780 (the 1962 Act), gave the tainly do not support its current theory the FDA the exclusive responsibility for evalu- Cu-7 is an in ert IUD. Searle cannot now ating the efficiency and safety of each disavow its previous claims due to the pas drug based on the FD A 's determination of sa g e of the preem ptive language in the the need for the product and the general A m endm ents. The statem ent of Adminis need to ensure th at the public has access to tra to r Schmidt th a t the Cu-7 remained a t beneficial drugs. Thus, a fte r 1962 the th e B ureau of D rugs for administrative FDA became the final arbiter of what convenience only does not counter the liter d rugs would be made available to the a tu re prepared by Searle itself. Moreover American public. the statem ent of Adm inistrator Schmidt th a t 360k applies to the Cu-7 is not bind ing on this court as Congress' definitions "m u st control over contrary statem ents by adm inistrators." Grakam v. Wyeth Lab oratories, 666 F.Supp. 1483, 1491 (D.Kan. 1987) (citation omitted). (3 ,4 ] The preem ption doctrine grows o ut of the Suprem acy Clause of the United S tates Constitution. U.S. Const, art. VI, cl. 2; Abbot v. American Cyanamid Co,, 844 F.2d 1108, 1111 (4th Cir.1988); Stewart, 672 F.Supp. a t 908. Implied preemption [2] Ms. Tarallo has pointed to portions of the record which tend to show the Cu-7 acted "through chemical action" to achieve contraception. See 21 U.S.C. 321(h) (de fining device). Furtherm ore, the copper w as apparently included in the IUD to af fe c t the structure of a woman's body so as to p re v en t pregnancy. See 21 U.S.C. 321(g)(1)(C) (defining drug). According ly, as plaintiff has shown a material factual question exists as to the appropriate classi fication of the Cu-7, summary judgm ent m u st be denied. occurs by either of two methods: (1) the federal regulatory' scheme is so pervasive as to leave "no room . . . for supplementary sta te regulation", or (2) s ta te law conflicts with federal law m aking compliance with both either impossible or fru stratin g to the purpose of the federal mandate. Abbot, 844 F.2d a t 1111. See also Hillsborough County, Florida v. Automated Medical Laboratories, Inc., 471 U.S. 707, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985); Silkuiood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct 615, 78 L.Ed.2d 443 (1984); Fidelity Fed. Sav. & Loan A ss'n. v. De La Cuesta, 458 II. Preemptive Effect of FDA D rug Regulations While the Amendments expressly U.S. 141, 102 S .C t 3014, 73 L.Ed.2d 664 (1982). Searle prim arily relies on the first method of preemption by implication. preem pt state actions concerning devices, Stewart, 672 F.Supp. a t 909, the issue of preem ption is not expressly addressed in the statutory provisions which govern the approval and sale of drugs. Searle instead arg u es if the Cu-7 is a drug, this action is preempted because of the pervasive nature of the regulations with which it m ust com ply. The precedent in this circuit forces the court to disagree and therefore summa ry judgm ent is denied. A. General Preemption [5-7] Despite Congress' statutory en actm ents,'there is a presumption against implied preemption of state laws regarding health and safety issues. Hillsborough 471 U.S. a t 715, 105 S.Ct. a t 2376. Al though federal regulations and statu tes are treated similarly for purposes of express preemption, Stewart, 672 F.Supp. a t 909, preemption based on comprehensiveness alone is less likely to be found in the case of regulations. Abbot, 844 F.2d a t 1112 (citing Hillsborough, 471 U.S. a t 717, 105 T here is no express preem ptive provision S.Ct. a t 2377). Agencies typically deal with in the Food, D ru g and Cosmetic A ct of subjects in a m ore detailed fashion. W. -0 826 TARALLO VC.iteSaEsA704RLF.SEupPp.H6A53R(DM.SA.CC. E19U881TICAL. INC. 059 (d'fiHff Hillsborough at 718, 105 S.Ct. a t Lederle Laboratories, 684 F.Supp. 246 0377). Finally, preemption is less likely if (D.Ariz.1987); Morris v. Parke. Davis & its imposition leaves the plaintiff w ithout Co., 667 F.Supp. 1332 (C.D.Cal.1987); available legal means of redress. Id. Id l MacGillivray r. Lederle Laboratories, 667 ing Silku-ood. 464 U.S. a t 251, 104 S.Ct. at F.Supp. 743 (D.N.M.1987); Graham, 666 6231. In Abbot, the court considered w hether an injured plaintiff could maintain an ac tion against the m anufacturer o f Trl-Im- F.Supp. at 1483; Wack r. Lederle Labora tories, 666 F.Supp. 123 (N.D.Ohio 1987); Patten v. Lederle Laboratories, 655 F.Supp. 745 (D.Utah 1987). munol, a diptheria-tetanus-pertussis (DTP) vaccine. Based on the above cautionary authorities the Abbot court refused to preempt state tort theories based on the regulatory mandates of the FDCA and the Public Health Service Act, 42 U.S.C. 201-300 (PHSA). Abbot, 844 F.2d a t 1111- 12. This conclusion was reached de spite the fact the FDA comprehensively regulates drugs and biological products. Id. at 1112. These regulations control "the licensing, production, testing, distribution, labeling, review and approval of all drugs and biologicals." Id. Furtherm ore, a m an ufacturer of DTP m ust be licensed, its manufacturing process approved and in spected and its personnel FDA qualified. Id. Finally the producer m ust conduct and submit to the FDA the "results of quality assurance tests . . . for each batch of vac cine." Id. (C.F.R. citations omitted). The Fifth Circuit has also recognized [8] The current regulations governing the m arketing of lUDs are also detailed. See 21 C.F.R. 310.502 (1988), The m anu facturer of a drug IUD must provide exten sive information to the purchasers of the product.2 It m ust provide a w ritten doc um ent which includes among other topics a description of the product, its mode of ac tion or principles of design, any warnings, precautions or adverse reactions associated with the IUD and directions for its use. The material m ust also include a patient inform ation section. 21 C.F.R. 310.502. In addition, approval as a new drug re quired the submission of extensive data reflecting research and drug composition. 21 U.S.C. 355. Searle argues these de tailed instructions preclude any action con cerning the adequacy of warnings, testing or design as long as Searle complied with the statute and regulations. there is no general preemption to be im [9] The FDCA and PHSA provisions plied from the pervasive FDCA or PHSA governing the DTP vaccine are a t least as vaccine regulator}' scheme. Hurley, 851 comprehensive (and probably more exten F.2d a t 1539. Likewise, several district sive) as the regulations which control the courts have similarly ruled. See Foyle v. m anufacture and sale of drug IUDs. Fol Lederle Laboratories, 674 F.Supp. 530 lowing Abbot, it cannot be implied from the (E.D.N.C.1987), petition fo r permission to IUD sta tu to ry scheme th at Congress in pursue interlocutory appeal denied No. tended to preem pt ail state actions which 87-8119 (4th Cir. May 18, 1988); Scholl v. m ay impose requirem ents different from or 2. As all RIDs must be purchased and fitted by a phvsician, the labeling requirements are direct ed to the doctor. 21 C.F.R. 310.502(b)(1). Thus the warnings in question here are those given to the physician, not any communicated directly by Searle to Ms. Tarallo. A patient brochure is required to be supplied by Searle to the doctor/purchaser. Id. Of course, Searle has no control over whether the patient ever actually receives the booklet. Based on this regulatory scheme, Searle previously moved for summary judgment under the learned intermediary doc trine. The motion was denied by the court by order dated March 22, 1988. The learned inter mediary defense rests on the sufficiency and clarity of warnings given lo the trained, licensed physician. If the doctor receives a warning which fully comports with the FDA legal stan dards, the doctrine prevents recovery by a treat ed patient against the manufacturer. Brooks v. Medtronic, Inc., 750 F.2d 1227, 1231 (4th Cir. 1984). This shifting of the duty to warn is generally referred lo as the learned intermedi ary doctrine because "the physician is called on to act as a 'learned intermediary' between the manufacturer and the consumer." Id, at 1231. See also Beyette v. Ortho Pharmaceuticals Carp., 823 F.2d 990 (6th Cir.1987) (discussing doctrine in the context of an IUD action). CO cn CO O i cO vT\ 660 704 FEDERAL SUPPLEMENT in addition to the mandatory drug provi sions. Therefore Ms. Tarallo's claims are not barred by the doctrine of general pre emption. B. Specific Preemption [10] Searle relies on dicta in Hurley to support its argum ent that if Ms. Tarallo's action is not generally preem pted, it is at least specifically preem pted. 851 F.2d at 1542. It contends the questions of adequa cy of warning and appropriateness of de sign can be specifically preempted because of the above FDA requirements. See letter of counsel to the court (Septem ber 16, 1988). Any requirem ent imposed by a state (such as a jury) would interfere with th e FDA's au thority in setting labeling standards. Hurley, 851 F.2d a t 1542. As long as the FDA has all relevant and ob tainable information so as to adequately dictate a proper warning," its decision as to the proper wording m ust preem pt by impli cation th a t of a state." Id. Under this theory recovery would exist only if Ms. Tarallo showed Searle failed to provide the FDA "all necessary and available informa tion on which to base the warning" and upon which the approval was granted. Id. a t 1542-43 n. 4. Ms. Tarallo has m ade no allegation of th a t type in her complaint. Searle's arg u m en t and reliance on the Hurley dicta are not persuasive here. This circuit has not addressed the question of implied specific preemption and this court declines to create th at defense. Based on Abbot, the court is doubtful the Fourth Circuit would follow Hurley and broadly hold a claim not preempted only to then find specific portions of th at claim largely barred by the sam e doctrine. A t this stage the court will not follow Hurley. Accord ingly summary judgm ent is hereby denied. III. Commerce Clause [11] Searle's final argum ent is based on the Commerce Clause of the United States Constitution which forbids a state from "im posing] a burden . . . materially af fe c tin g ] in terstate commerce in an area where uniformity of regulation is neces sary." Huron Portland Cement Co. v. City o f Detroit, 362 U.S. 440, 444, 80 S.Ct. 813, 816, 4 L.Ed.2d 852 (1960); U.S. Const, a rt. 1. 8, cl. 3, According to Searle, the imposition of various state requirements would unduly burden the m anufacturer of a nationally distributed product which fully complies with FDA mandates. S earle's contention is premised on a find ing the Cu-7 is a device within the Amend m ents and its authorities are so directed. Such a finding would require the court to conclude Ms. Tarallo's claims are preempt ed. To hold otherwise would contemplate a violation of the Commerce Clause in light of C ongress' express preem ptive intent. 21 U.S.C. 360k; Stewart, 672 F.Supp. at 909. However, as this court has denied sum m ary judgm ent on the question of whether the Cu-7 is a drug or a device, judgment cannot be entered for Searle on this consti tutional question. If Congress has neither impliedly nor expressly preem pted a cause of action, then by allowing actions based on sta te law it has determ ined uniformity is not param ount. To allow sta te law claims to go forward would not burden interstate commerce because Congress has not deemed the agency regulations the control ling standards. The Commerce Clause is sue is thus bottom ed on the resolution of the drug/device query. Searle's motion is denied on this theory as well. CONCLUSION Ms. Tarallo has brought forth sufficient evidence under Rule 56 to withstand Searle's motion for sum m ary judgment. There are genuine issues of material fact on the question of w hether the Cu-7 has been reclassified as a device under the A m endm ents' transitional language. This point being undecided Searle's contentions of preem ption and conflict with the Com merce Clause are not deserving of judg m ent a s a m atter of law. Searle's motion for sum m ary judgm ent is therefore denied and this m atter will proceed to trial. IT IS SO ORDERED. U.S. V. CAMPBELL Cite as 704 F.Supp. Ml (E.D.Va. 1989) 661 sentence of five years, even if mandatory UNITED STATES of America v. Gregory M ark CAM PBELL, D efendant. sentence were applicable to conspiracy to possess with intent to distribute 500 gram s or more of substance containing cocaine. Comprehensive D rug Abuse Prevention Crim. No. 88-00203-A. and Control Act of 1970, 401, 401(a)(1), United States District Court, E.D. Virginia, Alexandria Division. 406, as amended, 21 U.S.C.A. 841, 841(a)(1), 846; 18 U.S.C.A. 3553, 3553(e); 28 U.S.C.A. 994(n); Sentencing Guide lines, 5K1.1. Jan. 26, 1989. 4. C rim inal Law e=51 Prison sentence of 14 m onths, five Defendant pleaded guilty to conspiracy years of supervised release, and 300 hours to possess with intent to distribute 500 of community service was appropriate for grams or more of substance containing co conspiracy to possess with intent to distrib caine. The District Court, Ellis, J., held ute 500 gram s or more of substance con that: (1) defendant's substantial assistance taining cocaine; defendant's substantial as to authorities supporting downward depar sistance to authorities was prom pt, whole ture from guidelines sentence, and (2) man hearted, and central to convictions of code datory minimum prison sentence was inap fendants; defendant's participation in plicable. scheme was isolated incident of aberrant So ordered. behavior; and defendant was immature, gave sincere statem ent of contrition a t sen 1. Criminal Law 4=986.2(1) tencing, and chillingly described havoc wreaked by drugs. Comprehensive Drug Defendant rendered substantial assist Abuse Prevention and Control Act of 1970, ance to authorities and was entitled to 401, 406, as amended, 21 U.S.C.A. downward departure of guidelines sentence 841, 846; 18 U.S.C.A. 3553(e); 28 U.S. for conspiracy to possess with intent to C.A. 994(n); Sentencing Guidelines, distribute 500 gram s or more of substance 5K1.1. containing cocaine; defendant was instru mental in providing information to support search w arrant and provided full debriefing in anticipation of trial. Sentencing Guide lines, 5K1.1; Comprehensive D rug Kathleen Tutty, Sp. Asst. U.S. Atty., Kenneth Melson, F irst Asst. U.S. Atty., Alexandria, Va., for U.S. Abuse Prevention and Control Act of 1970, 401, 401(a)(1), 406, as amended, 21 U.S. C.A. 841, 841(a)(1), 846. Plato Cacheris, David S. Krakoff, Dunnells, Duvall, B ennett & Porter, W ashing ton, D.C., for defendant. 2. Conspiracy =51 Mandatory minimum prison sentence for possession of 500 gram s or more of cocaine with intent to distribute was inap plicable to conviction of conspiracy to com mit same crime. Comprehensive D rug Abuse Prevention and Control Act of 1970, 401, 406, as amended, 21 U.S.C.A. 841, 846; 18 U.S.C.A. 3553. 3. Criminal Law =986.2(1) Defendant's substantial assistance to authorities would entitle district court to depart from m andatory minimum prison FINDINGS AND REASONS ON SENTENCING ELLIS, District Judge. D efendant is before the C ourt for sen tencing after pleading guilty to a charge of conspiracy to possess with the intent to distribute 500 gram s or more of a mixture and substance containing cocaine, a Sched ule II narcotic controlled substance, in vio lation of Title 21, U.S.C., Section 841(a)(1). P u rsu an t to 18 U.S.C. 3553, the Court sets forth here its findings and reasons in 1142 708 FEDERAL SUPPLEMENT The two cases are distinguishable from the instant case because in bdth H olle and Rybicki, the hospitals had billed Medicare and had received payment. Thus, the arg u D ebra J o a n ALLEN an d A nthony p tlu| Allen, husband and wife, Plaintiffs ment th at the patients were not entitled to benefits was foreclosed to them, and HCFA retained authority over the hospitals be cause of their provider agreements. The G.D. SEARLE & CO., a Delaware corporation. Defendant. H olle court said th at ``[ujnder its a g ree ment with Medicare, the Hospital may not D onna KEYS, an individual, Plaintiff, file a lien for am ounts th a t rep resent v. charges for covered services fo r which M edicare has been billed by the provider, except for deductible or co-insurance am ounts." Holle, 598 F.Supp. a t 1021 (em G.D. S E A R L E & CO., a corporation, and Searle P harm aceuticals, Inc., a corporation, Defendants. phasis added). And, in dictum, the R yb icki court agreed with the contention that had the liability insurer settled the patient's Civil Nos. 86-1402-FR, 86-1659-FR. United States D istrict Court, claim immediately, no Medicare paym ent D. Oregon. would have been made and the hospital would have been free to charge its full fee. March 3, 1989. Rybicki, 792 F.2d a t 263. Therefore, both cases support the position that where Medi care has never been billed, as in the in stan t Users of IUDs brought suit against case, the provider agreem ent does not ap ply, and HCFA has no authority to impose limitations on the hospital's recoveries. m an u factu rer on variety of grounds, claim ing dam ages for infertility. On defen d an ts' motion to dismiss and plaintiffs' mo Because the court finds th at defendants tions to strike, the D istrict Court, Frye, J., have exceeded their authority under the held that: (1) learned interm ediary doctrine MSP statu te by prom ulgating the new re g applied; (2) genuine issues of material tact ulations, it need not address the notice and precluded sum m ary judgm ent; (3) causes comment issue. of action w ere not preem pted; (4) Unlawful CONCLUSION D efendants' motion to dismiss ( # ) is granted as to Portland Adventist and de nied as to OAH and St. Charles. [3] To the extent th a t Medicare In ter Trade Practices Act did not provide reme dy; (5) lack of notice precluded express and implied w arran ty claims; and (6) one plain tiff's cause of action w as tim e barred. G ranted in p a rt and denied in part. mediary Manual 3419.3, prom ulgated in March, 1988, limits the substantive rights of Medicare-participant providers to recov er more from liability insurers than from Medicare, when the liability insurer is a 1. D rugs and N arcotics <5=18 Under Oregon law, learned intermedi ary doctrine applied to case involving pre primary payer who will pay prom ptly and scription IUD. the MSP statute precludes Medicare pay ment, the court finds section 3419.3 void. OAH and St. Charles are entitled to judg m ent on the merits. 2. F ed eral Civil P ro ced u re 4^2515 Genuine issues of m aterial fact as to w hether m an u factu rer of prescription IUD gave tim ely and adequate warnings to medical profession of dangerous side ef fects precluded sum m ary judgm ent under Oregon law on learned interm ediary doc --0 trine. 960 ALLEN v. G.D. SEARLE & CO. C he a 706 F .S upp. 1142 (D .O r. 1989) H 43 3 Drill;* and N arcotics =1S personal injuries. ORS 646.605 et seq., I'm icr California law, m anufacturer of 646.612(1). prescription drugs is not strictly liable for -jury so long as drug was properly pre pared and accompanied by warnings of its dangerous propensities which were scien tifically knowable a t time of distribution. 10. F ed eral Civil P ro ced u re =2515 Genuine issues of material fact, about which package insert was read by user of IUD, precluded sum m ary judgm ent on user's implied and express w arranty claims 4. Federal Civil Proced u re =2515 under Oregon law. Genuine issues of material fact, as to whether m anufacturer of prescription IUD had designed device properly or w hether unavoidably unsafe products doctrine (Comment k) applied precluded sum m ary judgment of products liability action under Oregon law. 5. Drugs and N arcotics 4x=20 States <5=18.65 Since both m anufacturer and FDA la beled prescription IUD as a " `drug,' as well as 'a device,' " Medical Device Amend ments did not preem pt state products liabil ity suit against m anufacturer. Federal Food, Drug, and Cosmetic Act, 521, as amended, 21 U.S.C.A. 360K. 11. S ales =255 U nder Oregon law, lack of privity did not b a r IUD u se r's express w arranty claim against manufacturer. 12. S ales 4=285(1) Under Oregon law, lack of notice by user of IUD precluded her express and implied w arranty claims against manufac turer. 13. F e d e ral Civil P ro c e d u re <=2515 Genuine issues of material fact regard ing IUD m an u factu rer's duty to speak, its concealment, or any m istake, as well as user's reliance and causation, precluded sum m ary judgm ent under Oregon law on fraud claim by user against m anufacturer. 6. Drugs and N arcotics 4=20 States 4=18.65 State products liability law was not preempted simply because FDA had sta tu tory authority to make drug safety deci sions, notw ithstanding pervasive regula tory system. 7. Federal Civil P ro ced u re <5=2515 Genuine issues of material fact pre cluded sum m ary judgm ent under Oregon law regarding when IUD product liability plaintiff had discovered her injury for ap plication o f sta tu te of ultim ate response. ORS 30.905. 14. F ra u d =20 Under Oregon law, evidence of re liance by IUD user's doctor on statem ents made by m anufacturer could satisfy justifi able reliance requirem ent for claim of fraud and misrepresentation. 15. F ra u d =16 Under Oregon law, if patient may bring negligence claim based upon drug m an u factu rer's failure to w arn h er physi cian, patient may bring fraud claim based upon m an u factu rer's failure to disclose that risk to her physician. 16. F ed eral Civil P ro c e d u re =2515 8. L im itation of A ctions =95(4) Genuine issues of material fact con Under Oregon law, IUD user's dis cerning safety of IUD , adequacy of w arn covery th at IUD had caused her injury ings by m anufacturer, and m anufacturer's started two-year statute of limitations run knowledge of risks, precluded summary ning although user had not y et discovered jud g m en t under O regon law and m anufac full extent of her injuries. Or.Laws 1987, tu re r's s ta te of the a r t affirm ative defense n- 4. 5.9 during u ser's strict liability suit. 9- Consum er P ro tectio n 4=6 Under Oregon law, Unlawful Trade Practices Act did not provide remedy for Thomas J. Conlin, Robins, Kaplan, Miller & Ciresi, M inneapolis, Minn., and Gayle L. 1144 708 FEDERAL SUPPLEMENT Troutwine, Williams & Troutwine, P ort Oregon for the County of Multnomah land, Or., for plaintiffs. Searle removed the action to this court Timothy A. P ratt, Gregory L. Fowler, Keys alleges claims for strict liability and Shook, Hardy & Bacon, K ansas City, Mo., negligence, seeking $2,000,000 general and Carol A. Hewitt, Janice R. Wilson, dam ages and $5,500 special damages. Lindsay, H art, Neil & W eigler, Portland, The legal issues in plaintiffs' motions Or., for defendants. largely overlap the issues raised in Searle's OPINION motion. In addition, the motions of Allen and Keys se t forth virtually the same legal FRYE, Judge: The m atters before the court are the following motions: 1. P laintiff Debra Allen's motion to strike G.D. Searle & Co.'s (Searle) affirm a tive defenses, or for partial summary judg m ent on those defenses (# ); 2. Plain tiff Donna K eys' motion to strike Searle's affirm ative defenses, or for partial sum m ary judgm ent on those defens es (# ); argum ents to the facts in each case. To avoid repetition, the Discussion section of this mem orandum will address all of the motions relating to each legal issue in a single subsection. The following is an out line of the issues raised by each of the motions: 1. Allen's motion to strike affirmative defenses or for partial sum m ary judgment on those defenses attacks the following affirm ative defenses asserted by Searle: sta tu te of limitations (No. 1), federal pre 3. The motion o f both plaintiffs for de emption (Nos. 3, 5 and 6), superseding claratory judgm ent or for partial sum m ary cause (No. 4), sta te of the a r t (No. 7), judgm ent concerning Searle's duty to warn m isuse (No. 8), contributory fault (No. 9), plaintiffs directly (# ); and Comment k (No. 10), w arranty disclaimer 4. Searle's motion to dism iss and for sum m ary judgm ent (on 11 separate issues) (# ). (No. 11), and lack of privity (No. 12). The issues of statute of limitations, federal pre emption, Comment k, w arranty disclaimer, and lack of privity are also raised in Background and O utline o f Issues Searle's motion for sum m ary judgment. Plaintiffs, Debra Joan Allen and Donna Keys, bring these actions against Searle to recover for personal injuries allegedly caused by the Copper-7 IUD contraceptive (Cu-7). Allen and Keys allege th at their use of the Cu-7 caused pelvic inflam matory disease and subsequent infertility. The Allens filed their complaint on No vem ber 10, 1986. The Allen complaint con tains claims for negligence, m isrepresenta tion and fraud, strict liability, implied w ar ranties, express warranties, deceptive trade practices under both Montana and Oregon statutes, and punitive damages. Anthony Allen joined in each of the claims, but he has recently been voluntarily dismissed 2. K eys' motion to strike affirmative defenses or for partial sum m ary judgment on those defenses attacks the following affirm ative defenses asserted by Searle: federal preem ption (Nos. 3, 5 and 6), su perseding cause (No. 4), state of the art (No. 7), m isuse (No. 8), contributory fault (No. 9), and Comment k (No. 10). The issues of federal preemption and Comment k are also raised in Searle's motion for summary judgment. 3. Allen and K eys' motion for declarato ry judgm ent or partial summary judgment concerning duty to w arn plaintiffs directly; this issue is also raised in Searle's motion for summary judgm ent from the action. Debra Allen seeks com 4. Searle's motion to dismiss and for pensatory dam ages o f a t least $500,000, sum m ary judgm ent covers the following plus punitive dam ages of a t least $500,000. issues: Keys filed h er complaint on Novem ber a) Sum m ary judgm ent against Allen and 12, 1986 in the Circuit C ourt of the S tate of Keys regarding federal preemption; 961 0 -^ 7 ALLEN v. G.D. SEARLE & CO. Cile 1 708 F.Supp. 1142 (U.Or. 19S9) 1145 h) Summary judgm ent against Allen and during and between her m enstrual periods, Kevs regarding R estatem ent (2d) of Torts along with cram ping and pelvic pain which section 402A, Comment k; she characterizes as "severe." At times c) Summary judgment against Allen and Keys regarding adequacy of warnings; d) Summary judgment against Allen re garding punitive damages; e) Motion to dism iss and sum m ary judg ment against Allen regarding the Decep tive Trade Practices Act; fj Summary judgment against Allen re garding fraud and misrepresentation; g) Motion to dismiss and sum m ary ju d g ment against Allen regarding express and implied warranties; the pelvic pain required Debra Allen to lie down while a t work, and the bleeding re quired her to w ear sanitary pads daily. In addition, Debra Allen developed low back pain. Pelvic pain, pelvic bleeding, and low back pain are symptoms which may be indicative of pelvic inflam matory disease (PID), which is a bacterial infection of all or portions of a wom an's upper genital tract, including the uterus, fallopian tubes, and ovaries. PID may cause the development of ad hesive tissue (adhesions), which can dam h) Motion to dismiss and sum m ary ju d g ment against Allen regarding the statu te of ultimate repose; age the reproductive organs and lead to ectopic (tubal) pregnancy and infertility. However, Debra Allen's medical records do i) Motion to dism iss and sum m ary judg not show th a t she w as diagnosed with PID ment against Allen regarding im pairm ent while using the Cu-7, and she testified in to future earning capacity; deposition th at no physician or health care j) Motion to dismiss and sum m ary ju d g provider told her th a t the Cu-7 caused any ment against Anthony Paul Allen's non infection. consortium claims; and On May 22, 1978, Debra Allen returned k) Summary judgm ent against Keys re to Dr. Johnson's office due to her concern garding the sta tu te of limitations. about bleeding and cramping, as well as her inability to locate the tailstring of the Undisputed Facts Cu-7. Dr. Johnson had advised her to 1. The A lle n Case check for the tailstring regularly. Debra Defendant Searle is a Delaw are corpora tion which has its principal place of busi ness in the S tate of Illinois. Searle de signed the Cu-7 IUD and m anufactured it Allen discussed the possibility of removing the Cu-7, and Dr. Johnson recommended waiting until Allen's next m enstrual period to see if the tailstring would reappear. from 1974 until 1986. The United S tates On June 15,1978, Debra Allen visited Dr. Food and D rug Adm inistration (FDA) ap Wolfe and decided to have the Cu-7 re proved the Cu-7 as a dru g on F eb ru ary 25, moved because she continued to have 1974. T hat approval has never been re bleeding, cram ping, and pelvic pain, and voked, although Searle voluntarily w ith the tailstring had not reappeared. On June drew the Cu-7 from the m arket in 1986. 16, 1978, D r. Wolfe perform ed a dilation Debra Dennison Allen was born on March 23, 1956 and raised in Choteau, Montana. She completed a three year nursing and curettage and removed the Cu-7 while Debra Allen was under general anesthesia. The pathology report diagnosed "acute and course in 1977 and worked as a n urse be chronically inflamed endom etrium ." Debra tween 1977 and 1979. Debra Allen was Allen's sym ptom s of cram ping, increased inserted with a Cu-7 IUD on March 23, bleeding, and pelvic pain subsided a fte r the 1978 in anticipation of her m arriage to An- removal of the Cu-7. Debra Allen claims thony Allen on May 26, 1978. She was 21 th a t she w as unaw are a t th a t time th a t her years old a t the time. reproductive organs had been damaged. Following the insertion of the Cu-7, De- D ebra Allen began attem pting to become kna Allen experienced increased bleeding p re g n an t in November, 1978. She m et for 1146 708 FEDERAL SUPPLEMENT a fertility consultation with Dr. McKeown in March, 1979. Dr. McKeow,n perform ed exploratory surgery on Debra Allen in No vember 1980 and found adhesions on both fallopian tubes and ovaries. On April 2, 1981, Dr. Novy perform ed an exploratory laparotomy and made a post-operative diag nosis of PID and peritubal adhesions. Shortly thereafter, Debra Allen began tak ing fertility drugs. In July, 1983, D ebra Allen underw ent another surgical lapraseopy by Dr. Novy to attem pt to excise pelvic adhesions. In November, 1984, Debra Al len suffered an ectopic pregnancy, necessi tating the partial removal of her right fallo pian tube. In November, 1985, another ectopic pregnancy was diagnosed, necessi tating removal of her left fallopian tube. Debra Allen attem pted in vitro fertiliza tion in 1986 b u t w as not successful. The Allens have adopted two children. Debra Allen claims that she first became aware that the Cu-7 might have caused her infertility after reading a magazine article in early 1986. 2. The Keys Case G.D. Searle & Co. and Searle Pharm aceu ticals, Inc. (collectively, Searle) are Dela ware corporations with their principal place of business in the S tate of Illinois. G.D. Searle & Co. designed the Cu-7 and m anu factured it from 1974 until approxim ately June, 1978, and Searle Pharm aceuticals, Inc. manufactured the Cu-7 thereafter un til it was removed from the m arket in 1986. Donna Keys (then Mrs. Donna McBride) was inserted with a Cu-7 on Decem ber 2, 1975 by Dr. M anzer. She was 24 years old at the time. She wore the Cu-7 without apparent adverse symptoms until its re moval on M arch 1, 1979. On th a t sam e date, she was inserted with a new Cu-7. Approximately four months after the inser tion of the second Cu-7, Keys began com plaining of dyspareunia (pain with sexual intercourse) and increased cramps, which can be symptoms of PID. On March 4, 1980, Keys began suffering severe lower abdominal pain, frequent vom iting, chills, light-headedness, and fever. On March 5, 1980, her trea tin g physician, Dr. Vallimi, made a diagnosis of PID. The Cu-7 w as removed from Keys on March 7 1980, and Keys was treated with antibiotics for PID. At th a t time, Keys was told bv her physicians th at the PID was caused ti the Cu-7, and th a t it m ight have compro mised her fertility by blocking her tubes with adhesions. By the end of March 1980, the PID sym ptom s had subsided. In November, 1980, Keys underwent a diagnostic te s t called a hysterosalpingogram (HSG), which can help to determine w hether the fallopian tubes are open, but cannot assess w hether the fallopian tubes are functioning correctly. Keys was told th a t her tubes " looked open." Keys claims th a t she believed a t th a t time th at PID had not caused her any perm anent damage. Subsequently, Keys m arried her present husband and began trying to conceive a child in 1984. On Novem ber 2, 1985, Keys had an ectopic pregnancy, which necessitat ed a dilation and cu rettag e and the removal of her rig h t fallopian tube. On May 29, 1986, Keys had a second ectopic pregnancy, which necessitated partial removal of the left fallopian tube. L ater in 1986, Keys underw ent an unsuccessful attem pt at in vitro fertilization. The Keys plan to adopt a child. Discussion These m atters include motions to dis miss, motions to strike, and motions for partial or complete summary judgment The applicable legal stan d ard s for such mo tions are as follows: For purposes of a motion to dismiss un der Fed.R.Civ.P. 12(b)(6), the court views the com plaint in the light m ost favorable to the plaintiff, and m u st generally accept as tru e the facts alleged. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.), cert, denied, 454 U.S. 1031, 102 S.Ct 567, 70 L.Ed.2d 474 (1981). The court will dismiss a complaint for failure to state a claim only w hen it appears th a t the plain tiff can prove no se t of facts in support of the claim which will entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957). 362 ALLEN v. G.D. SEARLE & CO. CHe u 708 F.Supp. 1142 (D.Or. 1989) 1147 Under Fed.R.Civ.P. 12(f), "the court may gained by the p atien t's use of that drug." order stricken from any pleading any insuf 270 Or. a t 386-87, 528 P.2d 522. ficient defense or any redundant, im m ateri al. impertinent, or scandalous m atter." In order to survive a motion to strike, an affirmative defense m ust present questions of fact or of law. Smitk, Kline & French laboratories v. A.H. Robins Co., 61 P.R.D. 2-1 (E.D.Pa.1973). If m atters outside the pleadings are presented for consideration, the motion will be treated as one for partial summary judgm ent. The learned interm ediary doctrine was applied by the Honorable R obert C. Belloni, United S tates D istrict Judge, in an IUD case, Steinmetz v. A.H. Robins Co., No. 75-716 (D.Or.1981). In the context of that case Judge Belloni stated: T here is no reason to believe th at this concept applies with any less force to a case like plaintiff's which involves the use of a prescription device, the Daikon Summary judgm ent is appropriate where Shield. The devices are available only "there is no genuine issue as to any m ateri through a physician's prescription. The al fact and . . . the moving p arty is entitled physician perform s an individualized bal to a judgm ent as a m atter of law." Fed.R. ancing of the benefits and risks to the Civ.P. 56(c). The initial burden is on the p atient before prescribing the device. moving party to point o u t the absence of The doctor's insertion of the device is any genuine issues of m aterial fact. Once followed by periodic checkups and physi this initial burden is satisfied, the burden cian-patient consultations. The doctor shifts to the opponent to dem onstrate who prescribes an IUD is no less a through the production of probative evi "learned interm ediary" between the man dence that there rem ains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 ufacturer and patient than was the physi cian in McEwen, supra, who prescribed oral contraceptives. L.Ed.2d 265 (1986).1 O ther courts have held th at the doctrine 1. Duty to Warn Directly applies in the context of lUDs. See, e.g., Tetuan v. A.H. Robins Co., 241 Kan. 441, [1] Allen and Keys move for a declara tory judgm ent or partial sum m ary judg ment against Searle on the issue of Searle's duty to give direct w arnings to Allen and Keys as consum ers of the Cu-7. Searle 738 P.2d 1210, 1227-28 (1987); Beyetie v. Ortho Pharmaceutical Corp., 823 F.2d 990, 992 (6th Cir.1987); Terhune v. A.H. Robins Co., 90 W ash.2d 9, 577 P.2d 975 (1978). contends th at under the "learned interm edi Allen and Keys contend th at Searle is not ary" doctrine m anufacturers of prescrip entitled to the protection of the learned tion drugs are not required to give w arn interm ediary doctrine because it sought to ings directly to consum ers, but only to phy form consum er preferences by publicity sicians. and product literature aimed directly at Many jurisdictions, including Oregon, have adopted the learned intermediary' doc trine. See, e.g., Vaughn v. G.D. Searle & Co., 272 Or. 367, 536 P.2d 1247 (1975) (en banc), cert, denied, 423 U.S. 1054, 96 S.Ct. 784, 46 L.Ed.2d 643 (1976); McEwen v. Ortho Pharmaceutical Corp., 270 Or. 375, 528 P.2d 522 (1974). The McEwen court held that "the duty of the ethical drug m anufacturer is to warn the doctor, rath er than the p a tie n t___ The m anufacturer's compliance with this duty enables the pre consum ers, so th a t the actual decision to use the Cu-7 was made by consumers rath er than physicians. Plaintiffs argue that the learned intermediary doctrine may not apply in cases where no individualized medical judgm ent intervenes between a m anufacturer of a prescription drug and the ultim ate consumer. Plaintiffs cite Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1276 (5th Cir.), cert, denied, 419 U.S. 1096, 95 S .C t 687, 42 L.Ed.2d 688 (1974) (m ass imm unization program s for polio). scribing physician to balance the risk of Allen and K eys' cases are not like Reyes, Possible harm ag ain st the benefits to be however, where children received polio vac- 1148 708 FEDERAL SUPPLEMENT cine without individual consultation with a profession of any additional side effects physician. Allen and Keys each consulted discovered from its use. Id. a t 386, 52g with a physician who conducted examina tions and then inserted the Cu-7. Thus, despite any promotion aimed directly at consumers, the physicians of Allen and Keys exercised "individualized medical judgm ent" justifying application of the learned intermediary doctrine. Allen and Keys cite several cases, mostly under Michigan law, which hold th at the learned intermediary doctrine does not ap ply to prescription contraceptives. See, e.g., Odgers v. Ortho Pharmaceutical Corp., 609 F.Supp. 867 (E.D.Mich.1985); Stepkeiis v. G.D. Searle & Co., 602 F.Supp. 379 (E.D.Mich.1985); MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 475 N.E.2d 65, cert, denied, 474 U.S. 920, 106 S.Ct. 250, 88 L.Ed.2d 258 (1985). However, this court concludes th at although a great P.2d 522. The d ru g m anufacturer must utilize m ethods of w arning which will be reasonably effective to bring the warning home to prescribing and trea tin g physi cians. Id. a t 388, 528 P.2d 522. Allen and K eys have presented evidence th at Searle had reason to know as early as 1969 th a t its IUD carried a risk of PID, which could lead to infertility and other injuries. Allen and Keys have also presented a qu arterly re p o rt generated by Searle in 1974, which reported PID as a common complaint am ong IUD users and discussed the incidence of PID in users of the Cu-7. T he package in se rt used by Searle from 1974 to 1977 stated only that "[uncom m only, pelvic infection has been reported." e r degree of patient participation may be A later package in sert expanded the dis involved in the choice of a prescription con cussion of PID and warned th a t nulliparous traceptive than in some other prescription drugs, the physician makes the ultimate decision as to whether a particular contra ceptive requested by the patient is appro priate. women (women who have not borne off spring) are a t increased risk. Allen and Keys contend th a t even this revised pack age insert does not reveal the full extent of the dangers. In addition, Allen and Keys This court will follow Judge Belloni's rul contend th a t Searle m ade no effo rt to bring ing in Steinmelz and apply the learned the changes in the w arnings to the atten interm ediary doctrine in this case. Allen tion of prescribing and trea tin g physicians and Keys' motions for declaratory judg but continued to issue promotional materi m ent or partial summary judgm ent estab als emphasizing the safety of the Cu-7 for lishing a duty to warn consumers directly nulliparous women. are denied. Searle disputes m ost of these conten 2. Adequacy o f Warnings [2] Searle moves for summary judg m ent against both Allen and Keys on the issue of the adequacy of the warnings which Searle provided to their doctors re garding the Cu-7. tions. Consequently, there are genuine is sues of m aterial fa c t with regard to Searle's compliance with its duty to warn Allen and Keys. Accordingly, Searle's mo tion for sum m ary judgm ent on the issue of the adequacy of w arnings is denied. The m anufacturer of a prescription drug has the duty to make "timely and adequate warnings to the medical profession of any dangerous side effects produced by its drugs of which it knows, or has reason to know." McEwen, supra, 270 Or. a t 385, 528 P.2d 522. The drug m anufacturer is under a continuous duty to keep abreast of scientific developments regarding the safe ty of its product and to notify the medical 3. Comment k [3,41 Searle moves for summary judg m ent against both Allen and Keys on the issue of w hether the Com ment k exception to Section 402A of th e R estatem ent (Sec ond) of T orts applies to the Cu-7. Allen and Keys move to strike or for partial sum m ary jud g m en t a g ain st Searle's affirm ative defense based on Comment k. 963 q ALLEN v. G.D. SEARLE & CO. Che u 70S F.Supp. 1142 (D.Or. 19S9) 1149 Section 402A sets out the doctrine of m erely because he has undertaken to strict product liability. Comment k to Sec supply the public w ith an apparently use tion 402.4 states: ful and desirable product, attended with k. Unavoidably unsafe products. a known b u t apparently reasonable risk. There are some products which, in the (Emphasis in original.) present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the P asteu r treatm ent of ra bies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the m arketing and the use of the vaccine are fully justified, notwith standing the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not de fective, nor is it unreasonably danger ous. The sam e is true of many other drugs, vaccines, and the like, m any of which for this very reason cannot legally be sold except to physicians, or under the presecription of a physician. It is also true in particular of many new or experi mental drugs as to which, because of lack of time and opportunity for suffi cient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experi ence as there is justifies the m arketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualifi cation th at they are properly prepared Section 402A and its comments are incor porated into O regon law by O.R.S. 30.920. Most other states have adopted section 402A and its comments either by judicial decision or by sta tu te . However, there is some conflict in the various jurisdictions as to the application of Comment k to pre scription drugs. Searle contends th at Comment k pre cludes Allen and Keys' claims premised on strict liability and negligent design. Searle argues th at under both Oregon and Califor nia law all prescription drugs are unavoid ably unsafe products, to which Comment k applies.1 Most of the courts which have considered the issue have concluded th at a prescription d ru g is unavoidably u n safe if it m eets all of the requirem ents o f Comment k. Coursen v. A.H. Robins Co., 764 F.2d 1329, 1338 (9th Cir.1985). These requirem ents include a showing th a t the product is incapable of being made safe for its intended and ordi nary use; that the benefits of the product justify its m arketing and use despite the unavoidable risks; th at the product is prop erly prepared and marketed; and that the product is accompanied by proper di rections and w arnings. Com ment k is an affirmative defense, and the defendant bears the burden of proving its applicabili ty. Id. and m arketed, and proper w arning is giv As discussed in Section 2 of this opinion, en, where the situation calls for it, is not Allen and K eys have raised factual issues to be held to strict liability for unfortu as to the adequacy of Searle's warnings to nate consequences attending their use, physicians regarding the risks of the Cu-7. I- Searle contends that Oregon law applies to Allen's claims and California law applies to Keys' claims. Allen and Keys contend that Ore gon law applies to all claims. The choice of law determination depends in part on factual issues which preclude summary judgment regarding choice of law at this point. However, it appears that if California law applies to Keys' claims, the recent decision of the California Supreme Court in Brown v. Supe rior Court, 44 Cal.3d 1049, 245 Cal.Rplr. 412, 751 p.2d 470 (1988), will require partial summaty judgment in favor of Searle on the issue of its liability for design defects. The Brow n decision holds that "a manufacturer is not strictly liable for injuries caused by a prescription drug so long as the drug was properly prepared and accompanied by warnings of its dangerous pro pensities that were either known or reasonably scientifically knowable at the time of distribu tion.'* 245 Cal.Rptr. at 424, 751 P.2d at 482-83. Although Brow n concerned injuries caused by the drug DES, the court specifically held that all prescription drugs were within the Comment k exemption. 245 Cal.Rplr. at 424 n. 11, 751 P.2d at 482 n. 11. 1150 708 FEDERAL SUPPLEMENT A related issue is raised by the contention original). The Setin decision indicates that of Allen and Keys th a t Searle nullified or the Oregon court may not adopt the ap. diluted the effect of its w arnings by a g proach of the California Suprem e Court in gressively m arketing the C u-7, and empha Brown, supra, 44 Cal.3d a t 1049, 245 Cal. sizing its safety and desirability for nullipa- Rptr. a t 412, 751 P.2d a t 470, which held rous women, during the period when the FDA was about to impose increased warn ing requirem ents regarding the risks of PID in nulliparous women. Searle has not responded to this contention. Therefore, the issue of whether Searle properly m ar keted the Cu-7 remains open. Allen and Keys also contend th at Searle did not properly prepare the Cu-7, present ing evidence that there were defects in the manufacturing process. Searle has not re sponded to this contention, leaving this is sue unresolved. Searle relies most heavily on its conten tion that product liability claims for the defective design of prescription drugs are barred by Comment k. The Oregon Su preme Court has not directly addressed this issue.2 The decision of the Ninth Circuit in Coursen, supra, 764 F.2d a t 1336-38, sup ports submitting the issue of defective de sign to the jury. In Coursen, several wom en claimed that the Daikon Shield had caused them to contract PID. The court th a t Comment k precludes claims of defec tive design against all prescription drugs. Allen and Keys have presented evidence th a t the design of the Cu-7 heightened the risk of PID in several ways. F or example, Allen and Keys argue th a t the tailstring of the device could have been made from ma terial which w as less likely to facilitate the ascent of bacteria into the uterus. They also contend th at it would have been safer to place the tailstring inside the inserter tube. The court concludes that Allen and Keys' evidence creates factual issues regarding the claim of defective design. It appears th at under the present sta te of the law, an Oregon court would allow such evidence to go to the jury. T herefore, Searle's motion for sum m ary judgm ent on the issue of Comment k is denied. Allen and Keys' motions to strike or for sum m ary judgment ag ain st Searle's affirm ative defense based on Comment k (No. 10) are denied. allowed evidence regarding the alleged de sign defects in the Daikon Shield and in structed the jury th at it could consider w hether the Daikon Shield was defective in comparison to other IUDs. Id. a t 1336-37. 4. Federal Preemption (5] Searle moves for sum m ary judg ment against both Allen and Keys, assert ing th a t federal law preem pts all claims In the recent case of Senn v. MerrellDow Pharmaceuticals, Inc., 305 Or. 256, 751 P.2d 215 (1988), the Oregon Suprem e Court discussed Comment k, although it declined to make a determ ination on that regarding the safety of the Cu-7. Allen and Keys move to strike or for partial sum m ary judgm ent ag ain st Searle's affirm ative defenses based on federal preemption (Nos. 3, 5 and 6). issue on the basis of th e appellate record. Searle contends th a t a ju ry verdict in Senn involved injuries to a child caused by favor of Allen and Keys would require a diphtheria, tetan u s and pertussis vaccine conclusion th a t the Cu-7 is unreasonably (DPT). The court indicated th a t an eviden- dangerous, despite its approval by the FDA f p , tiary hearing was needed reg ard in g issues as a "safe and effective" product as la ~ such as "th e vaccine's efficacy, the degree beled. Searle a rg u es th a t this creates a ^ of risk attending its use, and the extent to direct conflict between federal statutory which it is in fact 'unavoidably u n safe.' " law and sta te to rt law which m ust be re Id. a t 263 n. 4, 751 P.2d 215 (emphasis in solved in favor o f federal law. Searle also 2. Two early product liability cases upheld verdiets in favor of defendants who were manufacturers of prescription drugs, but did not specifically discuss Comment k. Lewis v. Baker, R ich. ardson-Merrell, Inc., 243 Or. 317, 413 P.2d 400 (1966), overruled in part, M cEwen v. Ortho Pharm aceutical Corp., 270 Or. 375, 528 P.2d 522 (1974); Cochran Brooke. 243 Or. 89, 409 P.2d 904 (1966). ofet'd ALLEN v. G.D. S E A R L E & CO. Cite as 708 F.Supp, 1142 (D.Or. 1989) 1151 contends that the Cu-7 falls into an ex labeling regulations for all IUDs, whether press preem ption provision of the Medical d ru g or device. 21 C.F.R. 801.427; 21 C.F. Device Am endments to the Food, D rug and R. 310.502. Allen and Keys respond th at Cosmetic Act (FDCA). the FDA continued to recognize the distinc The Suprem e C ourt has identified three types of preemption: 1. Congress may preem pt by explict language; 2. Congress may indicate an intent to occupy an entire field of regulation; or 3. Actual conflict with federal law re quires preemption: (a) when compliance with both sta te and federal law is impossible; or (b) when sta te law o b structs congres sional purpose. Michigan Canners and Freezers Ass'n v. Agricultural Marketing and Bargaining Board, 467 U.S. 461, 469, 104 S.Ct. 2518, 2523, 81 L.Ed.2d 399 (1984). Searle argues th at all three types of pre emption apply in this case. Allen and Keys contend th a t th ere is no basis fo r preem p tion of sta te to rt rem edies fo r injuries caused by a product approved by the FDA. Searle asserts th at the Medical Device Amendments to the FDCA, 21 U.S.C. 360K, enacted in 1976, expressly preem pt product liability claims for the Cu-7. Searle relies on the following language: Except as provided in subsection (b) of this section, no S tate o r political subdivi tion between IUDs as drugs and IUDs as devices after the Medical Device Amend ments. The FDA commented: The agency's policy of treating some IU D s as d rugs and others as devices is unaffected by the revised definition of device found in the federal Food, Drug and Cosmetics Act, as amended by the Medical Device Am endm ents o f 1976. 52 Fed.Reg. 23772 (1977). Searle has produced no evidence indicat ing th at the FDA did not continue to treat the Cu-7 as a dru g a fte r the Medical De vice Am endments. Indeed, Searle has re ferred to the Cu-7 as a drug, both in its argum ents to this court regarding Com m ent k and the learned intermediary doc trine, and in the depositions o f its employ ees. Viewing Searle's evidence in the m ost favorable light, the Cu-7 is a t m ost both a drug and a device, and the Medical Device Amendments do not exempt drugs. Ac cord, Kociemba v. G.D. Searle & Co., 680 F.Supp. 1293, 1298 (D.Minn.]988) (Because "the FDA considers the Cu-7 to be a pre scription drug, section 360k simply does not apply.")3 sion of a S tate may establish or continue in effect with resp ect to a device intend ed for hum an use any requirem ent-- (1) which is d ifferen t from , or in ad dition to, any requirem ent applicable under this chapter to the device, and (2) which relates to the safety or effectiveness of the device or to any other m atter included in a requirem ent applicable to the device under this chapter. [6] Next, Searle argues th at Allen and Keys' state product liability claims against the Cu-7 are preempted because a jury verdict against Searle would conflict with the congressional delegation of drug safety decisions to the FDA, and because the FDA has occupied the entire field of the IUD and its safety by pervasive regulation. However, Searle does not satisfactorily dis tinguish the decision in Silkwood v. KerrMcGee Corp., 464 U.S. 238, 104 S .C t 615, 21 U.S.C. 360K (1988). 78 L.Ed.2d 443 (1984), where the Supreme Searle contends th a t although th e FDA C ourt refused to se t aside a ten million approved the Cu-7 as a drug, not a device, dollar punitive dam ages aw ard based on as a practical m atter the FDA also treated state to rt law, despite finding pervasive the Cu-7 as a device. Searle points out federal regulation of the nuclear industry. that in 1977 the FDA prom ulgated uniform The personal injuries in Silkwood arose 3. The court does not reach the issue of whether state tort liability constitutes a "requirement" within the terms of the Medical Device Amend- ntents. There appears lo be a doctrinal split between the circuits on this issue, and the par ties have not cited any Ninth Circuit decisions. 1152 70S FEDERAL SUPPLEMENT from the escape of plutonium from a feder We hold th at the w arnings given by an ally licensed nuclear facility. ethical drug m anufacturer may be found The Silkwood opinion noted th a t states are precluded from regulating the safety aspects of nuclear energy, 464 U.S. a t 241, 104 S.Ct. a t 617, b u t concluded: No doubt there is tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a State may neverthe less award damages based on its own inadequate, "[alth o u g h all of the govern m ent regulations and requirem ents have been satisfactorily met in the production and m arketing of [the drug], and in the changes made in the literature * * 270 Or. a t 398, 528 P.2d 522. (quoting Yarrow v. Sterling Drug, Inc., 263 F.Supp. 159, 162 (D.S.D.1967), affd, 408 F.2d 978 (8th Cir. 1969). law of liability. But as we understand The only cases cited by Searle which deal what was done over the years in the with products regulated by the FDA are legislation concerning nuclear energy, three cases regarding tampons, which have Congress intended to stand by both con been held (although not uniformly) to fall cepts and to tolerate whatever tension there was between them. We can do no less, within the exem ption of the Medical Device Amendments. Compare Moore v. Kimber ly-Clark Corp., 676 F.Supp. 731, 733-35 464 U.S. a t 256, 104 S.Ct. a t 625. The Supreme Court also stated th at "[i]t is dif ficult to believe that Congress would, with out comment, remove all means of judicial recourse for those injured by illegal con duct." Id. a t 251, 104 S.Ct. a t 623. (W.D.La.1987) (federal preemption) with O'Gilvie v. I n t'l Playtex, Inc., 609 F.Supp. 817 (D.Kan.1985), affd, 821 F.2d 1438 (10th Cir.1987), cert, denied, -- U .S .------, 108 S.Ct. 2014, 100 L.Ed.2d 601 (1988) (no pre emption). A num ber of courts have applied Silkwood in state to rt law cases involving prod ucts regulated by the FDA. See, e.g., Koeiemba, supra, 680 F.Supp. a t 1299 (find ing that federal regulation of the Cu-7 and state to rt law remedies co-exist); MacGillivray v. Lederle Laboratories, 667 F.Supp. 743 (D.N.M.1987) (pertussis vac cine); Graham, v. Wyeth Laboratories, 666 The court finds th a t to rt claims under Oregon law for injuries caused by the Cu-7 are not preempted by federal law. There fore, Searle's motion for sum m ary judg m ent on the issue of federal preem ption is denied. The motions of Allen and Keys for sum m ary judgm ent ag ain st Searle's affirm ative defenses based on federal preemption (Nos. 3, 5 and 6) are granted. F.Supp. 1483 (D.Kan.1987) (DPT vaccine). Numerous decisions have held th at the regulations of the FDA establish minimum standards but do not conflict with state law which sets higher standards for due care and safety in the m anufacture of drugs. See, e.g., Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652 (1st Cir.1981) (oral contraceptives); Salmon v. Parke, Davis and Co., 520 F.2d 1359 (4th Cir.1975) (Chlo 5. Statute o f Ultimate Repose--Allen [7] Searle moves to dismiss or for sum m ary judgm ent ag ain st Allen's claims on the grounds th a t Allen's claims are barred by the statute of ultim ate repose for prod uct liability actions. Allen moves to strike or for partial summary judgm ent against Searle's affirm ative defense based on the sta tu te of lim itations (No. 1). romycetin, . an antibiotic); Kociemba, su O.R.S. 30.905 se ts o u t th e sta tu te of limi pra, 680 F.Supp. a t 1299; Stromsodt v. tations for product liability actions in Ore Parke-Davis and Co., 257 F.Supp. 991, 997 gon: (D.N.D.1966), a ffd , 411 F.2d 1390 (8th Cir. (1) N otw ithstanding ORS 12.115 or 1969) (Quadrigen, a vaccine). In McEwen, 12.140 and except as provided in subsec supra, an action for injuries caused by an tion (2) of this section and ORS 30.907, a oral contraceptive, the Oregon Suprem e product liability civil action shall be com Court stated: menced not later than eight years after 965 O -W ALLEN v. G.D. SEARLE & CO. Cite 7 0 S F.Supp. 1142 (D.Or. I9S9) 1153 the date on which the product was first Searle contends th a t Allen is bound by purchased for use or consumption. h er deposition testimony in which she testi (2) Except as provided in ORS 80.907, fied th at she discovered h e r cause of action a product liability civil action shall be a fte r reading a magazine article in Novem commenced not later than two years af ber o f 1986. (Alien Deposition, pp. 151-55.) ter the date on which the . . . injury or If Allen discovered her cause of action af damage complained of occurs. te r March 1986, h e r claim is barred under Oregon courts have held th a t a "dis O.R.S. 30.905. covery" rule applies to subsection (2) of Allen subm itted a correction sheet a fte r O.R.S. 30.905, so th at an action is timely if her deposition was taken, changing the dis it is filed within two years a fte r the plain covery date to Novem ber or Decem ber of tiff discovered, or reasonably should have 1985. In connection with the present mo discovered, her cause o f action. Baird v. tions, Allen has subm itted an affidavit in Electro Marl Factory Direct, Inc., 47 Or. which she states th at a fte r fu rth e r review ,4pp. 565, 572, 615 P.2d 335 (1980). Oregon o f h er records, she is able to fix the dis courts have construed subsections (1) and covery date as January or February of (2) together to m ean th a t there is a ten- 1986. If Allen discovered h e r cause of year period of ultimate repose for product action between November, 1985 and F ebru liability actions: ary, 1986, h er claim is timely because she (l]f an injury occurred within eight years discovered the claim within eight years of of the date the product was first pur the purchase of the device and filed suit chased, the injured party had an addition within two years of the discovery of the al two-year period following the injury to claim. bring the action. That two-year period was characterised as a "grace period" by the committee. The court finds th at Allen has submitted evidence sufficient to create an issue of fact as to when she discovered her cause of 47 Or.App. a t 572, 615 P.2d 335. action. Allen has provided explanations Two decisions have applied the Oregon for the changes in her testim ony which a statute of ultim ate repose in contraceptive jury may find plausible. Further, Alien cases. Dortch v. A.H. Robins Co., 59 Or. has subm itted the affidavit o f one o f her App. 310, 650 P.2d 1046 (1982); and Phit- attorneys, Michaei L. Williams, who sta te s pott v. A.H. Robins Co., 710 F.2d 1422 (9th th a t he w as contacted reg ard in g Allen's Cir.1983). claim in F ebruary o f 1986. This evidence Allen purchased a Cu-7 on or about March 23, 1978. Therefore, h er claim is barred unless she discovered her cause of m ay support Allen's sw orn statem en t th a t she discovered her cause of action in Janu a ry or F eb ru ary o f 1986. action before March 23, 1986 and filed her In addition, there are issues of fact re action within two years of the discovery. garding Allen's claim th a t she discovered Allen claims th at she discovered h er cause h er cause of action less than two years of action in Jan u ary or F ebruary, 1986 before she filed suit. Allen has testified after her husband showed her an article th at although she was trained and worked from a news magazine. as a nurse, she did not know th a t there was Allen has presented evidence th at, al though she was trained and worked as a nurse, she received little training regarding any possible connection betw een IUDs in general, or the Cu-7 in particular, and PID or infertility. lUDs and was not aw are of any possible Searle's motion to dismiss and for sum connection betw een the Cu-7 and PID or m ary judgm ent ag ain st Allen is denied. infertility. Allen sta te s th at she w as never Allen's motion to strike or for sum m ary told by any health care provider th a t the jud g m en t ag ain st Searle's affirm ative de Cu-7 was related to her infection or subse fense based on the sta tu te of lim itations quent infertility before she filed this action. (No. 1) is denied. 1154 708 FEDERAL SUPPLEMENT 6. Statute o f Limitations--Keys caused blockage of my fallopian tubes [8] Searle moves for sum m ary judg preventing me from having children once m ent against K eys' action on the grounds I decided to do so. I had always planned th at it is barred by the applicable sta tu te of on having children in the fu tu re. My limitations.4 doctors explained th at there was a proce Keys was first inserted with a Cu-7 in December. 1975. D uring the consultation with her physician, Dr. Manser, she signed a consent form which warned her th at side effects and complications can occur with an IUD, including pregnancy, tubal pregnan cy, pain and cram ping, infection, and death. Keys has testified that this form was presented to her at the last minute before the Cu-7 was inserted, and that she does dure, called a salpingogram , which I should undergo after waiting six months following my infection which could deter mine w hether my tubes had been blocked by the pelvic inflam m atory disease. Be cause of w hat my doctors told me con cerning this test, I decided to have a salpingogram performed and underwent th at test in Novem ber 1980. (Keys Affidavit, pp. 4-5, para. 11). not remember reading it. Keys wore this Cu-7 without incident until it was removed on March 1, 1979. In her affidavit, Keys describes her understanding of the results of the salpin gogram test: Keys also states th at she based her deci sion to begin using the Cu-7 on w hat her doctor told her about the Cu-7 and upon magazine articles about IUDs and the Cu-7 Im mediately following the test, Dr. Fulsher told me th a t my tubes "looked open." This w as a g re a t relief to me since I thought my tubes had not suf in particular. Keys has identified several magazine articles which she believes influ enced her decision, none of which mention a risk of infertility from IUDs or the Cu-7. fered any damage from the pelvic inflam m atory disease I experienced in March 1980. Consequently, I did not believe I had suffered any serious or permanent On March 1, 1979, a second Cu-7 was inserted by Dr. Manzer to replace the origi nal Cu-7. Keys testified that Dr. Manzer did not discuss any risks of using the Cu-7, but asked only if Keys had suffered any problems with the device. In March, 1980, injury as a result of my pelvic inflamma tory disease, and I th o u g h t I would be able to conceive and bear children. (Keys Affidavit, p. 5, para. 12). In her deposition, Keys stated th at the doctor said, "From w hat I can tell, they look Keys received medical treatm ent for w hat open," and th at he did not su g g est that any was diagnosed as PID. The Cu-7 was further testing was necessary. (Keys Dep removed in the course of this treatm ent. osition, p. 99). Keys testified th at she vomited, had chills, was light-headed, and had lower ab dominal pain. Keys states in her affidavit that "[t]he doctors explained that they thought the Cu-7 I was using was causing the problem, and the Cu-7 was therefore Keys states th at she used birth control pills for contraception from March, 1980 until March, 1984, when she began to at tem pt to become pregnant. She then suf fered ectopic pregnancies in November, 1985 and May, 1986. Keys sta te s that; removed two days later. The doctors gave me antibiotics to treat the infection, and my sym ptoms w ent aw ay." (Keys Affidavit, p. para. 9). Keys also stated: Prior to my first ectopic pregnancy in Novem ber 1985, I had no idea th a t the pelvic inflam m atory disease I had suf fered in March 1980 had dam aged the The doctors I saw a t the Medical Clinic in Portland had explained to me that my pelvic inflam matory disease m ight have lining of my fallopian tubes to prevent a fertilized egg from passing down the tube into the uterus. This is when I first 9 9 0 ., Searle contends that Keys' claim is governed Slate of California is applied, this court will o t by California law. However, as Searle concedes that the result would be the same whether the law of the State of Oregon or the law of the consider only the law of the forum state, the State of Oregon. ALLEN V. G.D. SEARLE & CO. CHe u 70S F.Supp. 1142 (D.Or. 1989) 1155 learned that the Cu-7 had caused seri wire cut the polyvinyl chloride film. ous, perm anent injury to my fallopian Schiele's sym ptom s intensified betw een tube and had impaired my ability to have January, 1983 and F ebruary, 1984. In a child. March, 1974, Schiele w as hospitalized for (Keys Affidavit, pp. 6-7, para. 16). pulmonary pneumonia. In April, 1974, her Searle contends th a t K eys' action is barred because 1) she knew she had PID in I960; 2) she was told th at the PID was caused by the Cu-7; and 3) she was told doctors informed her th at her illness was possibly due to exposure to polyvinyl choloride fumes. Schiele filed her complaint on March 8, 1976. that the PID might have damaged her fal lopian tubes, which could cause infertility. Searle argues th at Keys should have filed suit within two y ears a fte r March, 1980 because she was aware a t that time that the Cu-7 had caused her PID. H obart Corporation argued th a t Schiele's action was barred because Schiele had sus pected that the fumes were causing health problems more than two years before she filed her com plaint The Oregon Supreme C ourt reversed the trial court's order of Keys responds that she did not discover, sum m ary judgm ent against Schiele, hold nor could she reasonably have discovered, ing th a t it could not say as a m atter of law her infertility and its connection to the th at a reasonably prudent person would Cu-7 until November, 1985, when she su f have apprehended th a t she w as being se ri fered her first ectopic pregnancy. In fact, ously or perm anently injured m ore than Keys contends th a t she took all possible two years prior to the com m encem ent of steps to determine w hether the PID in March, 1980 had caused infertility or relat ed problems, and was reassured by the results of the salpingogram. Keys main tains that she is seeking dam ages for the injury to her fallopian tubes, the ectopic pregnancies, and her infertility, and not for the PID she suffered in 1980. Thus, Keys contends that she timely filed this action within two years a fte r discovery of her claim. Keys relies upon Schiele v. Hobart Corp., 284 Or. 483, 587 P.2d 1010 (1978), in which Schiele sued fo r personal injuries caused by fumes from a m eat wrapping machine when she worked as a m eat w rap per for Fred Meyer. In May or June of 1972, Fred Meyer purchased and installed Hobart Corporation's meat wrapping ma chine, which used a hot wire to cut the Schiele's action. 284 Or. a t 491, 587 P.2d 1010. The court considered a num ber of cases regarding the statute of limitations for oc cupational disease claims, and concluded that "ftjhese cases stand for the proposi tion th at the statute of limitations on claims involving negligent infliction of an occupational disease does not begin to run until the plaintiff knows, or as a reasonably prudent person should know, th at he has the condition fo r which his action is brought and that defendant has caused it." 284 Or. 489, 587 P.2d 1010. Keys contends th a t Schiele governs not only occupational disease claims, but per sonal injuries of any n ature which cannot reasonably be discovered within two years after the injury actually occurred. Keys polyvinyl chloride m eat w rapping film. In relies on the following language; December of 1982, Schiele began using the [W]e reject defendants' claim th a t knowl machine during a considerable p a rt of her edge of sym ptom s and th eir causal rela work day. tionship to defendants' actions in and of Soon after beginning to use the machine, Schiele experienced a variety of health problems; nausea, dizziness, choking, coughing, and difficulty catching her itself initiates the running of the statute. We do not believe the legislature intend ed th at the statu te be applied in a man ner which would require one to file an breath. Almost from the outset, Schiele action for tem porary sickness or discom associated these problems with the fum es fort or risk the loss of a right of action which the machine generated as its hot for perm anent injury. 1156 70S FEDERAL SUPPLEMENT The statu te of limitations begins to run not som e sym ptom atology, which is cru when a reasonably prudent person asso cial." Id. a t 926, 648 P.2d 850. ciates his symptoms with a serious or perm anent condition and at the same time perceives the role which the defen d an t has played in inducing th a t condi tion. The recent C ourt of Appeals decision in Gannon v. Rogue Valley Medical Center 92 Or.App. 314, 758 P.2d 873, rev. denied 307 Or. 145, 765 P.2d 813 (1988), followed Guiley. I t deals with a situation which is id. a t 490, 587 P.2d 1010. m ore com parable to K eys' claim. On June Searle arg u es that Schiele applies only to occupational disease cases where injuries are inflicted cumulatively, not on one iden tifiable occasion. Searle relies on the Ore gon Court of Appeals' decision in Guiley v. Hammake/, 55 Or.App. 921, 640 P.2d 664, rev. denied, 292 Or. 863, 648 P.2d 850 (1982), in which the plaintiff sued for p er sonal injuries caused by an automobile acci dent more than seven years earlier. The automobile accident occurred on January 13, 1973, when the plaintiff was fourteen days old. A t th at time, he was treated by a physician for a small abrasion on his head. There were no other apparent inju ries. 10, 1982, M ary Gannon underw ent a myleogram . She contracted m eningitis because the defen d an t failed to prevent the intro duction of infectious organism s during the m yleogram . L ater, as a resu lt of the men ingitis, she su ffered chronic organic brain syndrome and accompanying psychiatric problem s. She did not discover that the m eningitis was a cause of the syndrome until Ju n e 30, 1984, and filed h er action on June 27, 1986. Gannon knew th a t the meningitis may have been caused by defendant's negli gence as early as May, 1982. She did not file su it a t th a t time because she had recov ered from the meningitis and believed that her injuries w ere not serious enough to In 1980, Guiley began to exhibit learning w a rran t a law suit. H e r organic brain syn difficulties in school. An exam ination re drom e w as diagnosed on A ugust 3, 19S3, vealed dam age to an optic nerve, resulting b u t h e r psychiatrists could not identify the in impaired acuity in the rig h t eye. Guiley cause until June, 1984. The Court of Ap filed su it in July, 1980. The trial court peals held th a t the sta tu te began to run in dismissed the action on the basis o f the 1982, when Gannon realized th a t the defen statute of limitations, although the plaintiff dant m ight have negligently administered and his guardian ad litem alleged th a t they the m yleogram , causing her meningitis. were unaw are o f and could not have discov ered the injury to the optic nerve until April, 1980. The Court of Appeals upheld the dismissal because the plaintiff knew th at he sustained an injury and knew of its I t is difficult to distinguish Keys' case from the facts in Gannon. According to K eys' testim ony, she knew in 1980 that she had su ffered PID because of the Cu-7, but did not file su it because she did not think cause in 1973, although he did n ot deter mine the full extent of the injury until later.5 the Cu-7 had caused her serious or perma nent injury. Keys testified th at she did not discover h e r infertility for several years, The court considered Schiele as the case m ost closely resem bling the facts in Gui ley, b u t held th a t Schiele was limited to its and could n ot reasonably have linked the Cu-7 with her infertility or ectopic preg nancies until late in 1985. peculiar facts as a case relating to occupa Both Guiley and Gannon recognize that tional disease. 55 Or.App. a t 926-27, 640 the full ex tent o f injuries may not be dis P.2d 664. The court noted th a t "[ojccupa- coverable until a fte r the statu te of limita tional diseases arise out of a course of tions h as ru n on a claim, b u t hold that the events, not out of a discrete act; it is the sta tu te of lim itations begins to run w hena development and awareness of the disease, plaintiff knows th at he or she has suffered 5. The court noted that Oregon statutes provide an additional five years to minors under O.R.S. 12.160, so that Guiley had a total of seven yean in which to file his action. 967 2-T?3 ALLEN v. G.D. SEARLE & CO. 1157 .c u t 7 0 S F.Supp. 1142 (D.Or. 1989) sonif injury because of the defendant's 8 Unlawful Trade Practices Claim acts. It is undisputed th at Keys believed she had suffered PID in March, 1980 be cause of the Cu-7. Keys was told in March, 1980 th a t the PID could have dam aged her fallopian tubes, resulting in infer tility. The hopeful resu lts of the salpingo gram in November, 1980 p u t Keys into the same position as Guiley and Gannon, who innocently believed th at they had not su f fered any serious or perm anent injuries. Although the resu lt appears harsh, the court finds th at it is bound by the holdings in Guiley and Gannon. 19] Searle moves to dismiss or for sum mary judgm ent against Allen's claim under the Oregon Unlawful Trade Practices Act (UTPA), O.R.S. 646.605 e t seq. Searle con tends th a t the private enforcem ent provi sion of UTPA does not provide a remedy for personal injuries. Searle also argues th at Allen's claim falls into the exemption provided in O.R.S. 646.612(1) for "[cjonduct in compliance with the orders or rules of, or a statute administered by a federal, state or local governmental agency" be cause Searle's labeling and sales of the Cu-7 are governed by FDA regulations. The enactm ent of 1987 Oregon Laws, Chapter 4, Section 5 does not change the result. T hat provision states: Allen responds that the UTPA should be interpreted broadly to protect consumers from unfair or deceptive trade practices Notwithstanding ORS 30.905, a prod uct liability civil action ag ain st the m anu facturer of an intrauterine contraceptive device shall be commenced not late r than two years a fte r the date on which the plaintiff first discovered, or in the exer cise of reasonable care should have dis covered, the injury and the cause of the injury. (Emphasis added.) Although no Oregon court has yet con strued this section, it does not appear to change the definition of "injury" under Or egon law. As discussed above, Keys dis covered th at the Cu-7 had caused her an injury, PID, in March, 1980. Under Ore gon law, the statu te of limitations began to run against Keys a t th at time although she had not yet discovered the full extent of her injuries. resulting in personal injury, and th a t she has suffered economic loss for medical ex penses caused by Searle's deceptive trade practices. Allen also contends th at the ex emption of O.R.S. 646.612(1) cannot be strained to apply in instances where a man ufacturer has misrepresented the hazards of its product to the FDA in order to obtain approval. O.R.S. 646.638(1) provides in relevant part: [AJny person who suffers any ascertain able loss of money or property, real or personal, as a result of wilful use or employment by another person of a method, act or practice declared unlawful by ORS 646.608, m ay bring an individual action in an appropriate court to recover actual dam ages or $200, whichever is greater. Keys filed her action more than two Punitive dam ages and attorney fees are years after the statute of limitations began also recoverable under this provision. to run. H er claim against Searle is barred. In Gross-Haentjens v. Leckenby, 38 Or. Searle's motion for sum m ary judgm ent App. 313, 589 P.2d 1209 (1979), the Oregon against Keys is granted. C ourt of Appeals held th a t O.R.S. 646.638 does not provide a remedy for loss result 1- Punitive Damages Claims Searle moves fo r sum m ary judgm ent against Allen's claims for punitive damges, contending th at such dam ages are unconstitutional. The court denied this Portion of Searle's motion a t the hearing on these motions. ing from personal injury: It is to be noted th at this "private enforcem ent" provision (ORS 646.638), although providing for the recovery of "actual dam ages," confers the right to bring such an action upon a person who "suffers any ascertainable loss of money o r property, real o r personal." This is 1158 708 FEDERAL SUPPLEMENT consistent with its purpose to provide for 9. Warranty Claims "restitu tio n ,'' i.e., restitution for econom ic loss suffered by a consum er as the result of a deceptive trade practice. Plaintiff has not called our attention to anything in the legislative history of ORS 646.638 to support his contention to the effect th at by the adoption of th at provision the legislature intended to con fer upon private individuals a new cause [10] Searle moves to dismiss or for sum m ary judgm ent against Allen's claims for breach of express and implied w arran ties. Allen moves to strike or for partial sum m ary judgm ent against Searle's affirm ative defenses to these claims of warranty disclaimer (No. 11) and lack of privity (No 12) . of action fo r personal injuries, including Searle contends th at Allen's deposition punitive damages and attorney fees. testimony forecloses her from proving that 38 Or.App. a t 317, 589 P.2d 1209. she relied on a w arranty or that there was The plaintiff in Leckenby, who was in ju red in an automobile accident, alleged that the dealer from whom she bought her any causal connection between a breach of w arranty and her injuries. Searle points to Allen's testimony th at she decided to pur car violated th e UTPA by representing th at chase an 1UD prior to seeing h er physician, the c ar's brakes would be checked and re Dr. Johnson, based upon discussions with paired. Id. a t 315, 589 P.2d 1209. Al her friends (Allen Deposition, p. 55), and to though the Leckenby decision does not dis Allen's testimony th at she read a package cuss the point, it may be assum ed th a t the insert a t Dr. Johnson's office, b u t has no plaintiff sou g h t dam ages for medical ex recall of anything she read (Allen Deposi penses and property dam age in her "per tion, p. 68). sonal injury" action. Allen suggests th at this court should re examine the propriety of the Leckenby de cision and follow the decision in Kociemba, supra, which held th at the consumer pro tection statutes of the State of Minnesota covered the personal injury claim of a Cu-7 user. However, Kociemba was decided un der Minnesota law and interpreted a stat ute which uses different and less restric tive language than does O.R.S. 646.638. This court is bound to follow Oregon law interpreting the private cause of action pro vided by O.R.S. 646.638. The Leckenby decision is an interpreta tion of Oregon law by an Oregon appellate court which has not been overturned or disapproved by the Oregon Supreme Court or the Oregon legislature. Allen has not suggested any way in which Leckenby is Allen has subm itted an affidavit stating that she read and relied on the package insert, although she does not recall what it said a t this time. Searle replies that a subsequent affidavit contradicting Allen's deposition testimony does not create a gen uine issue of fact. See Radobenko v. Au tomated Equipment Corp., 520 F.2d 540, 544 (9th Cir.1975). However, a factfinder could reasonably conclude th at Allen's affi davit does not directly contradict her depo sition testimony, but adds to and explains th at testim ony. Therefore, the court will consider Allen's affidavit. Allen subm its th a t she read and relied on a package insert, and th at her deposition testimony and the deposition testimony of Dr. Johnson are sufficiently clear to allow the court to determ ine which package in distinguishable from her case. According se rt she read and to determine the term s of ly, this court finds th a t it is bound by any w arranties m ade an d /o r breached by Leckenby'& holding th a t O.R.S. 646.638 Searle. Allen's identification of the pack does not provide a remedy for personal age insert is based on the recollections of injury. 38 Or.App. a t 318, 589 P.2d 1209. Allen and Dr. Johnson th a t the package Searle's motion to dismiss Allen's claim insert an d /o r an inform ation card recom u nder the Oregon U nfair Trade Practices- mended having the Cu-7 replaced a fte r two A ct is granted. years.6 Searle contends that Allen was 6. A package insert distributed before 1978 in- strutted users to have the Cu-7 replaced after 968 ALLEN v. G.D. SEARLE & CO. Clic u 708 F.Supp. 1142 (D.Or. 1989) 1159 given a d ifferent package insert than the 266 Or. 273, 283, 512 P.2d 776 (1973). Al one Allen claims she read. len relies on Markle v. Mulholland's, Inc., The court finds th a t Allen has presented evidence from which a factfinder could con clude th at she read and relied on a particu 265 Or. 259, 272, 509 P.2d 529 (1973), in which the Oregon Supreme Court stated th at "impediments to recovery, such as no lar package insert. The various package tice, privity, disclaimer, and limitation of inserts have been produced in discovery, so remedy, m ake little sense in the usual con that it will be possible to determ ine a t trial tex t of personal injury cases." However, whether Searle made express w arranties in the quoted portion o f the Markle opinion the relevant package insert. concerns a strict liability claim, not a war Allen's claim for breach of the implied warranty of merchantability does not de pend on a showing th a t she relied on sta te ran ty claim. The Markle decision did not hold, as Allen contends, th at notice and privity are not required in personal injury ments in a package insert or other s ta te w arranty claims. ments made by Searle. Unless properly excluded or modified, the implied w arranty of m erchantability is p resen t in every sale of goods by a m erchant, w arranting th at the goods are fit for the ordinary purposes for which such goods are used. O.R.S. 72.3140. Searle has raised the affirmative defense that it disclaimed all express and implied warranties. The disclaimer language cited by Searle is found in a package insert first disseminated by Searle in 1977. The earli er insert does not contain any disclaimer. As discussed above, th ere is a factual issue as to which in sert was given to Allen. Therefore, Allen's motion to strike or for summary judgm ent against Searle's affirm ative defense of w arranty disclaimer is de Recent Oregon decisions have indicated th at privity is a requirem ent in some, but n ot all, w arranty claims. In Colvin v. FMC Corf., 43 Or.App. 709, 716, 604 P.2d 157 (1979), the court held th a t privity is required for implied w arranty claims for economic damages and for personal injury damages to a person outside the distribu tive chain. The Colvin court did not reach the issue of personal injury damages to a remote purchaser within the usual distribu tive chain, such as Allen. In Dravo Equipment Co. v. German, 73 Or.App. 165, 169, 698 P.2d 63 (1985), the court held th at express w arranties could extend to remote purchasers who were not in privity with the original seller of a prod nied. uct. T he co u rt noted th a t it m akes sense [H ] Searle also contends th at Allen's express and implied w arranty claims m ust fail because Allen is not in privity with Searle, and because Allen did not give prompt notice of the alleged breach of w ar ranty. Allen does n o t contend th a t she is in privity with Searle or th a t she gave th at implied w arranties should not extend beyond the original transaction because im plied w arranties are imposed on a seller by statute, but that express warranties are distinguishable because the seller is free to make them as broad or narrow as it choos es. Id. a t 170, 698 P.2d 63. prompt notice of her claim. Allen contends Thus, it appears th a t lack of privity does that under Oregon law, notice and privity n ot b a r Allen's express w arranty claim un are not required in a w arranty action for personal injuries resulting from the pur chase of a product. der Oregon law. As discussed above, Ore gon law is less clear as to Allen's implied w arranty claim. Although Oregon deci It is undisputed th at notice and privity sions require privity for m ost implied w ar were essential elements of a w arranty ranty claims, the opinions have carefully claim before th e developm ent of strict lia distinguished claims for personal injuries bility. Redfield v. Mead, Johnson & Co., by rem ote p u rchasers o f consum er goods. two years. A Jaier package insert, which was first distributed in late 1977, instructed users to have the Cu-7 replaced after three years. There is a factual dispute about the length of time it look for the "three-year" package insens to reach practitioners such as Dr. Johnson. 1160 708 FEDERAL SUPPLEMENT In the absence of a case on point, the court is unwilling to find th at Oregon law bars such claims. Searle contends th at sum m ary judgment is appropriate because Allen cannot show an actionable m isrepresentation, reliance [12] The court has not located any O re on any m isrepresentation, or a causal con gon decision holding th a t notice is no long nection betw een any m isrepresentation and Allen's injuries. er required in a w arranty action for person al injuries resulting from the purchase of a Searle arg u es th a t Allen's deposition tes consum er product. On the contrary, in timony establishes th a t she did not rely on Redfield, supra, an action against a contra any representation made by Searle because ceptive d ru g m anufacturer, the Oregon Su h er decision to use the C u-7 was based prem e C ourt stated th at O.R.S. 72.6070 "in solely on discussions with h e r friends. As dicates th a t notice is an essential elem ent detailed in the w arran ty discussion, Searle of plaintiff's case" for breach of w arranty. seeks to exclude Allen's subsequent affida 266 Or. a t 284, 512 P.2d 776. In the ab vit which sta te s th a t she read and relied on sence of any authority for abolishing the notice requirem ent, and in the absence of any evidence that Allen gave notice of her the Cu-7 package insert. For the reasons stated in the w arran ty discussion, the court will consider Allen's affidavit. express or implied w arranty claims, this The issue of reliance is ordinarily left to court m ust rule th at Allen has not estab the jury. Sm ith v. United States Escrow lished an essential elem ent of her w arranty Corp., 89 Or.App. 224, 229, 748 P.2d 168 claims. (1988). The court finds th a t Allen has The court will g ra n t Searle's motion for sum m ary judgm ent against Allen's w arran ty claims and deny Allen's motion to strike or for sum m ary judgm ent against Searle's presented evidence from which a ju ry could reasonably conclude th a t Allen relied on the package insert in h er decision to use a Cu-7. affirm ative defense of lack of privity.10 Moreover, Allen has presented the affi davit of her treating physician, Dr. John 10. Fraud and Misrepresentation Claim. son, in which he states th at he first learned of and began to prescribe the Cu-7 in [13] Searle moves for sum m ary judg 1974-75; th a t he read and relied upon m ent ag ain st Allen's fraud and m isrepre Searle's Cu-7 package in sert (the early ver sentation claim. Allen contends th a t sion) In 1974-75; th a t he recalls th a t Searle Searle m isrepresented the safety of the prom oted the Cu-7 as appropriate for use Cu-7 by om itting information regarding in nulliparous patients; and th a t because the risk of pelvic inflam matory disease, the package insert does not mention sal salpingitis, infertility, and ectopic pregnan pingitis, infertility, or ectopic pregnancy, cy from th e package insert distributed be he did not consider these conditions to be fore 1978. risks of the Cu-7. Similarly, Dr. Johnson Under Oregon law, the elem ents of a interpreted the sta te m en t th a t "[ujncom- fraud or m isrepresentation claim are: monly, pelvic infection has been reported" (1) a representation; (2) its falsity; (3) to mean th a t although a woman could con its m ateriality; (4) the speaker's knowl trac t pelvic infection while w earing the Cu- edge of its falsity or ignorance of its 7, the Cu-7 did not increase the risk of tru th ; (5) his intent th a t it should be PID. acted on by the person and in the m anner reasonably contemplated; (6) the hear e r's ignorance of its falsity; (7) his re liance on its truth; (8) his rig h t to rely th ereo n ;.and [9) his consequent and prox In Tetuan, supra, th e K ansas Supreme Court upheld a verdict fo r dam ages in a fraud case brought by a woman against the m anufacturer of the Daikon Shield, despite the fact th a t the wom an's physician did not imate injury. tell her w hat brand of IUD he wras insert Rice v. McAlister, 268 Or. 125, 128, 519 ing and she did not know th a t she had a P.2d 1263 (1974). Daikon Shield until a fte r it w as removed. >-<3 698 ALLEN v. G.D. SEARLE & CO. Cite a t 70S F.Supp. 1142 (D.Or. 198) 1161 The court in Tetuan field th at " 'here a In addition, Allen has presented evidence patient relies on a physician for treatm ent from which a factfinder could conclude th at or advice as to an ethical or prescription Searle actually concealed inform ation re device, justifiable reliance by the physician garding the hazards of the Cu-7. Conceal on m isrepresentations or concealment by m ent m ay be found in "(a]ny words or acts the m anufacturer of th at device constitutes justifiable reliance by the patient." Id.; accord, Kociemba, supra, 680 F.Supp. at 1303. which create a false impression covering up the tru th ." Caldwell, supra, 54 Or.App. a t 113, 634 P.2d 471, quoting Prosser, Law o f Torts, section 106, a t 695 (4th ed 1971). A jury could find th a t Searle's package insert l i t ] Oregon law imposes on d ru g man purported to list all of the risks associated ufacturers a comparable duty to warn the with the Cu-7, b u t th at Searle omitted medical profession of dangerous side ef risks which w ere known to it. fects of a drug. See McEu'en, supra, 270 Or. at 385, 528 P.2d 522 (negligence action based on oral contraceptive m anufacturer's failure to warn). The court finds th at Al len has presented evidence th at Dr. John Searle contends th at Allen cannot show a causal connection between her injuries and any representations made by Searle. This contention depends on Searle's argum ent th a t there is no evidence of reliance or of son relied on information provided by an actionable m isrepresentation. The court Searle in prescribing the Cu-7 for Allen. has found th a t Allen has presented evi Evidence of her doctor's reliance could sa t dence sufficient to support a finding th at isfy the justifiable reliance requirem ent for Allen (or h e r physician) relied on represen Allen. tations by Searle in choosing the Cu-7. If Searle contends th at it cannot be held liable for the omissions claimed by Allen because silence or nondisclosure does not constitute a representation unless the de fendant had a duty to disclose the informa tion or actively concealed the information. Caldwell v. Pop's Homes, Inc., 54 Or.App. Allen establishes those elements of her fraud claim, the record is replete with fac tual issues regarding the causal connection betw een the Cu-7 and Allen's injuries. Therefore, Searle's motion for sum m ary judgm ent ag ain st Allen's claim for fraud and m isrepresentation is denied. 104, 111, 634 P.2d 471 (1981). Searle a r gues th at it had no duty to m ake disclo sures to Allen because a drug m anufactur er's duty to w arn extends only to the physi cian. HcEwen, supra, 270 Or. a t 386-87, 528 P.2d 522. However, Searle ignores the McEu'en co urt's language th at "[alth o u g h the duty of the ethical drug m anufacturer is to warn the doctor, ra th e r than the pa tient, the m anufacturer is directly liable to 11. Impairment o f Future Earning Ca pacity Searle moves to dismiss or for summary judgm ent ag ain st Allen's claim for impair m ent of future earning capacity. Allen does not oppose this portion of Searle's motion. T herefore, the court will g ra n t Searle's motion to dism iss Allen's claim for impairment of future earning capacity. the patient for a breach of such duty." Id. 12. Anthony A lle n 's Claims [15] If a patien t may bring a negligence claim based upon a drug m anufacturer's failure to warn h er physician, as in McEwen, it follows th at a patient may bring a fraud claim based upon a d ru g m anufactur er's failure to disclose risks to her physi cian. Searle has cited no relevant authori ty precluding such a claim. The decision in Philpolt, supra, upon which Searle relies, discusses fraud only in the context of es toppel to a sse rt the statu te of limitations. Searle moves to dismiss or for summary judgm ent ag ain st A nthony Allen's non-con sortium claims. Anthony Allen has volun tarily dismissed all of his claims. This portion of S earle's motion is deemed m o o t 13. Superseding Cause, Misuse, and Contributory Fault Allen and Keys move to strike or for partial sum m ary jud g m en t ag ain st Searle's affirmative defenses of superseding cause 1162 708 FEDERAL SUPPLEMENT (No. 4), m isuse or unusual sensitivity (No. 8), and contributory fault'(N o. 9). Searle's fourth affirm ative defense custom, general scientific or medical knowl edge and standards existing a t the times pertinent to this lawsuit." states: "Plaintiffs' . . . alleged damages, if any, were the result of intervening, su perseding conduct of others." Searle's eighth affirmative defense states: "Plain tiffs' . . . injury . . . resulted from misuse, or abuse or unintentional and unforesee able use, or unusual sensitivity to the Cu7." Searle's ninth affirm ative defense states: "Plaintiffs were themselves com paratively at fault." Allen and Keys contend that this "state of the a rt" defense m u st fail because 1) Searle had actual and constructive knowl edge of the dangers posed by the Cu-7; and 2) Searle could have designed the Cu-7 differently or used different warnings which would have improved its safety. Searle responds th at the record contains evidence controverting Allen and Keys' contentions on each of these points, so that Allen and Keys contend th at Searle's de sum m ary judgm ent on this affirm ative de fense of intervening or superseding cause fense is not appropriate. m ust fail because Searle has not identified It is not necessary to recapitulate the an intervening or superseding source of evidence discussed in previous sections of injury. Searle responds th a t 1) there is evidence in the record indicating th at any injuries to Allen and Keys were caused by this opinion. The court has found that there are factual issues with regard to the safety of the Cu-7, the adequacy of warn th eir own actions, by medical treatm ent ings provided with the Cu-7, and Searle's obtained subsequent to their use of the knowledge of any risks posed by the use of Cu-7 or by sexually transm itted diseases, the Cu-7. These factual issues preclude all of which could be considered interven sum m ary judgm ent ag ain st Searle's state ing or superseding causes; and 2) the court of the a r t defense. has authorized further discovery regarding the health and sexual histories of Allen and Keys, and such discovery may produce evi dence of intervening or superceding causes. The motions of Allen and Keys to strike or for sum m ary judgm ent ag ain st Searle's seventh affirm ative defense are denied. The parties repeat essentially the same Conclusion contentions regarding the defenses of mis The motion of plaintiffs Allen and Keys use or unusual sensitivity and contributory for declaratory judgm ent or partial summa fault. This court authorized further dis ry judgm ent establishing a duty to warn covery reg ard in g sexual histories and consum ers directly is denied. treating physicians after these motions were briefed. T hat discovery could pro duce evidence relevant to the challenged defenses. Therefore, the court finds that it would be prem ature to g rant a motion to strike or for summary judgment at this time. The motion of Searle to dismiss or for sum m ary judgm ent is granted as to Keys' action (CV86-1659). The motion of Searle to dismiss or for sum m ary judgm ent is granted in p a rt and denied in p a rt as to Allen's action (CV86-1402-FR), as follows. The motions of plaintiffs Allen and Keys to The motions of Allen and Keys to strike or for sum m ary judgm ent against Searle's fourth, eighth and ninth affirmative de strike Searle's affirm ative defenses, or for partial summary judgm ent on those defens es are gran ted in p a rt and denied in part, fenses are denied. as follows. 14. State o f the Art Searle's motion for sum m ary judgm ent on the issue of the adequacy of warnings is [16] Allen and Keys move to strike or denied. Searle's motion for sum m ary judg fo r partial sum m ary judgm ent against m ent on the issue of Comment k is denied. Searle's seventh affirm ative defense, which Plaintiffs' m otions to strike or for summa alleges: "D efendants took precautions and ry judgm ent ag ain st Searle's affirm ative affirm ative actions as were consistent with defense based on Comment k (No. 10) are the state of the art, industry practice and denied. 970 D-??G P A U L S O N V. D EA N W IT T E R R E Y N O L D S , IN C . Cile a t 708 F.Supp. 1163 (D.Or. I) H 63 Searle's m otion for sum m ary ju d g m en t on the issu e o f fe d e ra l preem p tio n is de R ic h a rd V. P A U L S O N a n d G lo ria le e nied. The m otions o f Allen and K ey s fo r Paulson, individually and as trustees o f .summary ju d g m en t ag ain st S earle's affirm R ichard Y. P aulson Fam ily T rust and ative defenses based on federal preem ption G lorialee Paulson Fam ily T rust, P lain (N os. 3, o an d 6) a re g ra n te d . tiffs, S ea rle's m otion to d ism iss and fo r s u m mary ju d gm en t a g a in st A llen is denied. Allen's m otion to strike or for sum m ary judgment against Searle's affirm ative de fense based on the statute o f lim itations (No. 1) is d en ied . The court finds th a t Keys filed h er action more than tw o y ears a fte r the sta tu te of limitations began to run on h er claim. T herefore, K e y s ' action a g a in s t S e a rle is barred. S e a rle 's m otion fo r su m m a ry ju d g ment against K eys' action (CV86-I659-FR) is gran ted . v, DEAN W ITT ER R EY N O LD S, IN C., a D e law are corporation, A m erican In su r ance Com pany, a C alifornia corpora tion, R ichard A llen, and R obert H. K ehrli, D efendants. Civ. No. 88-860-FR . U nited States D istrict Court, D. Oregon. M arch , ISS9. S earle's m otion fo r su m m a ry ju d g m e n t against A llen's claim s for punitive dam ages is denied. S e a rle 's m otion to d ism iss Al len's claim u n d er th e O regon U n fair Trade Practices A ct is g ran ted . Searle's m otion for sum m ary jud g m en t ag ain st A llen's w arran ty claim s is g ra n te d . A llen 's m otion to strik e o r fo r su m m a ry ju d g m e n t a g a in s t Searle's affirm ativ e defense o f lack o f priv ity is denied. Searle's m otion fo r su m m ary ju d g m e n t a gainst A llen's claim fo r fra u d a n d m isrep resentatio n is denied. S e a rle 's m otion to dismiss A llen 's claim fo r im p a irm e n t o f fu ture earning capacity is granted. Searle's m otion to dism iss or fo r sum m a ry judgm ent a g ain st A nthony A llen's non consortium claim s is deem ed m oot because Anthony Allen has voluntarily dism issed all of his claims. The m otions o f Allen and Keys to strike or fo r su m m a ry ju d g m e n t a g a in s t S e a rle 's fourth, eighth and ninth affirm ative de fenses are denied. The motions of Allen and Keys to strike or for sum m ary judg ment against S earle's seventh affirm ative defense are denied. On m otion fo r reconsideration of order granting defendants' m otion to compel ar bitration o f federal and pendent state secu rities law s and common-law claims, th e D is trict Court, Frye, J., held th a t arbitration provision in options tra d in g agreem ent, signed by brokerage custom er during tim e form er Securities and Exchange Commis sion rule prohibiting predispute ag ree m ents to arb itrate federal securities claim s w as in effect, could not be enforced to require arbitration of federal securities law s claims. Motion gran ted . E xchanges =11(11) A rb itratio n provision in options trad in g agreem ent, signed by brokerage custom er during tim e form er Securities and Ex change Commission rule prohibiting predis pute agreem ents to arbitrate federal secu rities claim s w as in effect, could n o t be enforced to require arbitration of federal securities law s claims. /*\ David J . Sw eeney, P au l G. D odds, Gil bertson, Brow nstein, Bask, Sweeney, K err & Grim, Portland, Or., fo r plaintiffs. 238 742 FEDERAL SUPPLEMENT CD "`-.'I M84 A PPEN D IX --Continued 4. Since J u n e 1, 1978 to d a te , if you are partnership, corporation or associa tion? ( ) Y ES (X) NO If any of the answ ers above is " YES", please furnish com plete details iden tifying the nature of the financial in terest, transaction or paym ent. In ad dition, please furnish the identity of the person, firm, partnership, corpora tion or association involved and any other p ertinent inform ation which you deem descriptive of the m atter so iden tified. 2. Since J u n e 1, 1978 to d a te , h a s a n y one w ith whom you tran sact business on behalf of the Company approached you or any m em ber or m em bers of your family suggesting financial bene fit to you or any m em ber or m em bers of your family w hether on the basis th a t said individual or his com pany or firm receive preferential treatm ent, confidential inform ation o r an order or com m itm ent from the Company for furnishing of services, supplies, m er chandise or any other thing o f value, involved in o r a re resp o n sib le fo r the sa le o f any o f th e C om pany's products o th er than through its retail units, have you offered or given to any pur chaser or prospective p u rchaser of such products anything of value (other than norm al en tertainm ent o r pro m otional expenditures falling within s ta te d C om pany policies) in o rd e r to procure or atte m p t to procure such sa le w hich w as n o t c learly reflected on the invoice fo r such products as p art of the custom ary commercial term s of sale for such a product? ( ) Y ES (X) NO If the answ er is "Y ES" , please set fo rth th e sam e in reasonable detail be low. 5. Since J u n e 1, 1978 to d a te , h as there been any o th er situation n o t specifical ly c o v ered by th e fo reg o in g which could re a so n a b ly be c o n stru e d a s giv ing rise to a possible conflict of inter e st involving you and your representa tion o f th e Com pany in the transaction of its business? or otherwise? ( ) Y E S (X) NO ( ) Y ES (X) NO If the an sw er is "Y ES", please set I f y o u r a n sw e r is "Y E S " , p lease fu r nish the nam e of the individual in fo rth th e sam e in re a so n a b le detail be low. volved, to g eth er with a statem en t set I hereby acknow ledge receip t o f a copy ting forth 'com plete details concerning the offer. o f the "S tatem ent o f Policy regarding Conflict o f In te re st and Guidelines of 3. Since J u n e 1, 1978 to d a te , h av e you R esp o n sib ility " w hich w a s re a ffirm e d by or any m em ber or members of your th e B oard o f D irectors o f American fam ily received or been offered any S to re s C om pany on M arch 11, 1981. g ift w hose fa ir m a rk e t value is in ex cess o f $100 o r participated in a tte n d ing events or accepting trips outside the vicinity o f your personal residence w hich w ere paid fo r, in w hole o r in part, by anyone w ith whom you tra n s a ct or have been asked to tra n sac t business on behalf of the Company? ( ) Y ES (X) NO NAME: H. W illiam Johns (Please Print) P resen t Position W ith the Company: Pi: rector, Packaging, Equipm ent and Sup plies Procurem ent DATE: April 2, 1982 (s) H. W illiam Jo h n s (Signature) If your answ er is "YES" , please fu r nish the nam e o f the individual, the nam e of the organization th a t person represents, the date or dates of the offer, gift, event or trip, and if a gift, your disposition of same. 'b 'fr -O M A ZU R v. M E R C K & CO ., IN C . Clm us 742 F.Supp. 239 (E.D.Pa. 19901 239 g re ss did not intend to displace state law, Lisa M arie M A ZU R, a M in o r, in h e r o w n an d th e p re su m p tio n a g a in s t preem ption is ' r ight, and A nthony M azur a n d E d n a even stro n g e r w hen state regulation on ' M azur, as P a re n ts an d G u ard ian s, and m a tte rs related to health and safety is in \ in their own right, P laintiffs, volved. Atoir f & t * 1' .,s . #W'> i.. v. MERCK & CO., INC., D efen d an t. Civ. A. No. 85-6494. United S tates D istrict Court, E.D. Pennsylvania. 4. D ru g s a n d N a rc o tic s =11 S ta te s =18.65 C ongress did not preem pt state regula tion o f vaccine m anufacture, distribution, and labeling by its regu latio n o f vaccines in the Federal Food, D rug, and Cosmetic Act Ju n e 29, 1990. and the Public H ealth Service Act. Federal Food, D rug, and Cosm etic Act, 1 et seq., Parents of student who contracted su bacute sclerosing panencephalitis (SSPE) brought action ag ain st m an ufacturer of measles, mumps, and rubella vaccine which allegedly caused th e SSPE. On m anufac tu re r's m otion fo r su m m a ry ju d g m e n t, th e D istrict C ourt, D itte r, J., held th a t: (1) federal regulation of vaccines does not preem pt s ta te to r t law ; (2) school n u rse p ijs f t could be found to be learned interm ediary; sajw> (3) m ass inoculation exception did n o t apply! (4) p ack ag e c irc u la r could be fo u n d to * 8 ' be inadequate; and (5) issue of fa c t w as raised as to proxim ate causation and statute of limitations issues. Ordered accordingly. 21 U .S.C .A . 301 e t seq.; Public H ealth Service A ct, 214 e t seq., as am ended, 42 U.S.C.A. 215 e t seq. 5. D ru g s a n d N a rc o tic s =11 S la te s =18.65 M ere compliance w ith a Food and D rug A dm inistration (FDA) suggestion, regulation, or order does not mean that state to rt law becom es irrelevant to drug m a n u fa c tu re r's liability; com pliance w ith FDA regulation may establish th a t the m an u factu rer m et th e appropriate mini mum stan d ard s o f due care, b u t compliance does not necessarily absolve the m anufac tu re r o f all liability, as m anufacturers m ust m eet state safety requirem ents, whether codified o r em bodied in th e com m on law , in addition to satisfying the initial FD A re ^ i n s t a t e s =18.5, 18.7 quirem ents. , Implied preem ption m ay arise w hen ^ongress indicates an in ten t to occupy an entire field of regulation, in which case the Sites' m u s t leave all re g u la to ry a ctiv ity in M '. m at area to the federal government, or when Congress preem pts sta te law to th e extent th a t state law actually conflicts w ith federal law; su ch a co n flict a ris e s w hen 6. D ru g s a n d N a rc o tic s =11 S ta te s =18.65 Federal regulation o f vaccine labels and package circulars does not preem pt state law requirem ents. 7. L im ita tio n o f A ctio n s =95(4) U nder the "discovery rule," limitations compliance w ith both federal and sta te law period begins to ru n w hen p lain tiff knows ^ is impossible o r w hen s ta te law f r u s tr a te s o r sh o u ld kn o w th a t he h a s been injured the'purposes of federal law. and th at the injury has been caused by ^ .S t a t e s =18.3 . Preem ption o f state to rt law does not ^ automatically follow extensive federal reg' v- ulation. 3. S ta te s =18.3 a n o th e r p a r ty 's conduct. See publication Words and Phrases for other judicial constructions and definitions. 8. F e d e ra l Civil P ro c e d u re =2515 Genuine issues of fact existed, preclud -ir In,the absence of express preem ption, ing sum m ary judgm ent as to when stu ' there is a stro n g presum ption th a t Con- d e n t's p a re n ts knew o r should have known 240 742 FEDERAL SUPPLEMENT th at student suffered from subacute scle rosing panencephalitis (SSPE) and when they knew or should have known th at vac cine know n as M-M-R II w as th e c au se o f disease, and thus when statu te of limita tions on cause of action against m anufac tu re r began to run. 14. D ru g s a n d N a rc o tic s =18 "M ass im m unization" exception to the learned interm ediary rule for determ ining w hether d ru g m a n u fa c tu re r has m et its duty of w arning did no t apply to inocula tion o f a p p ro x im a te ly 100,000 s tu d e n ts in city school system following outbreak of 9. D ru g s a n d N a rc o tic s =17 U nder Pennsylvania products liability law, standard of care with respect to p re scription drug m anufacturer requires the supplier to exercise reasonable care to in fo rm th o se fo r w hose u se th e a rtic le is supplied of th e facts which m ake it likely to m easles w here school nurse, who could be found to be a learn ed interm ediary, w as on hand w hen stu d en ts w ere immunized to m ake an individual decision as to each stu dent. See publication Words and Phrases for other judicial constructions and definitions. be dangerous. 15. D ru g s a n d N a rc o tic s =18 10. D ru g s a n d N a rc o tic s =18 M anufacturer of prescription drugs or vaccines m ust m eet its inform ational obli gation in m ost instances by providing ade quate w arning to a learned interm ediary, ra th e r than to the general public or individ ual consumer. 11. D ru g s a n d N a rc o tic s =>18 By receiving Federal D rug Adm inistra tion (FDA) approval of its package circular, vaccine m an u factu rer had a t le a st complied with minimum stan d ard of adequacy of w arn in g . 16. D ru g s a n d N a rc o tic s =>21, 22 Persons claiming th a t d ru g m anufac tu r e r 's p a c k a g e c irc u la r w a s in a d e q u ate w ere required to p resen t factual support D irector of city health departm ent w as fo r th eir claim s o f inadequacy and, once not learned interm ediary for purposes of th a t threshold w as m et, adequacy o f w arn determ ining w hether m anufacturer of vac ing would be a question fo r the ju ry unless cine fulfilled its duty to w arn w ith respect th e co u rt determ ined th a t the w arning was to vaccination program fo r city school chil adequate as a m a tte r of law. dren. 17. D ru g s a n d N a rc o tic s =18 12. D ru g s a n d N a rc o tic s =18 School nurse could be found to have acted as "learned interm ediary," for pur poses of determ ining w hether drug m anu factu rer fulfilled its duty of w arning, when she perm itted stu d en t to receive vaccine, as she personally reviewed the medical records of every student a t the school and determ ined w hat immunization, if any, w as needed in re sp o n se to m easles o u tb re a k . C ircular distributed w ith vaccine for mumps, m easles, and rubella stating that there w as no reason to routinely revacci nate children who w ere originally vaccinat ed w hen 12 m onths of ag e o r older b u t th at children who w ere vaccinated a t a younger age should be revaccinated could be found to be inadequate because o f its failure to provide inform ation about the potential risks associated w ith revaccination. See publication Words and Phrases for other judicial constructions and definitions. 18. D ru g s a n d N a rc o tic s =21 A ccusation th a t m anu factu rer o f vac cine did n o t en g ag e in su fficien t research 13. D ru g s a n d N a rc o tic s =18 Technician who adm inistered inocula tion to student w as not a learned interm edi ary for purpose of determ ining w hether drug m anufacturer fulfilled its duty of before it indicated use o f vaccine for adult's use w as not relevant to adequacy of its package circular w ith respect to vaccina tion of 12-year-old child. 19. D ru g s a n d N a rc o tic s =18 w arning, as he w as not a medical profes C enter fo r D isease C ontrol (CDC) re sional. p o rt on which vaccine m an u factu rer relied 972 : MAZUR v. MERCK & CO., INC. Cite as 742 F.Supp. 239 (E.D.P. 19901 241 when it drafted w arnings w as based on a m ethod of distribution of its product and study which look into account the discrep rem ained responsible fo r the foreseeable ancy between doses used and doses distrib errors of th e CDC. uted in calculating the risk p ercentages, so th a t th e c irc u la r's s ta te m e n t a s to th e po s sibility o f developing d isea ses in te rm s o f each million dosages w as adequate. 20. D rugs a n d N a rc o tic s =>18 Package circular for vaccine which in dicated th a t it w as contraindicated for per sons receiving corticosteroids was adequate even though it did not refer to a specific corticosteroid. 25. D ru g s a n d N a rc o tic s =>I8 F acto rs th a t will aid in determ ination of w hether d rug m anufacturer has acted reasonably in its effo rts to w arn learned interm ediary or patient of possible dangers of the d ru g include the n ature of the prod uct, the character of the person to whom it is su p p lied , a n d th e w a y in w hich th e pro d u ct will be ultim ately used; th e care th a t m ust be taken alw ays increases as the risk 21. D rugs a n d N a rc o tic s =>18 of danger increases. Package circular fo r vaccine which laid out the results of a Center for Disease C ontrol's (CDC) co m prehensive ex am in a tion of relationship betw een m easles vac cine and sub acu te sclerosing panencephali tis (SSPE) and which indicated th a t th ere was not a specific cause and effect relation ship betw een SSPE and the vaccine was not inadequate on theory th at there was inadequate research to su p p o rt it. 26. D ru g s a n d N a rc o tic s =>18 It m ay be th a t vaccine m anufacturer acts w ith reasonable care by obligating the purchaser to give a w arning to the patient w hen th ere is no indication th a t the p u r ch ase r will n o t perform th a t ta sk but, if it is readily a p p a re n t th a t th e p u rch aser is unable to fulfill its obligation because it has not money to do so or because it ex pressed an intention or showed by past acts 22. D ru g s a n d N a rc o tic s ^=18 If C en ter for D isease C ontrol (CDC) perform ed its obligation under contract with vaccine m an u factu rer to ensure th a t th a t it did n o t intend to p erfo rm its obli gation, m a n u fa c tu re r could n o t avoid liabili ty by co n tractin g w ith the p u rch aser to provide the w arnings. the vaccine w as adm inistered to each pa tient on th e basis of an individualized m edi cal judgm ent by a physician and to provide patients and their p aren ts with m eaningful w arnings, drug m anufacturer would have fulfilled its duty to w arn under the learned interm ediary rule, if adequate package cir culars w ere m ade available to the learned interm ediary, and would have filled its duty under the m ass immunization exception. 27. D ru g s a n d N a rc o tic s =>18 F act th a t p arents of one stu d en t alleg edly never received inform ation statem ent which th e C enter fo r D isease Control (CDC) ag re ed w ith vaccine m a n u fa c tu re r to distribute to p aren ts of students receiving vaccination did not show th a t it w as unrea sonable for the m anufacturer to rely on the CDC to provide a w arning. 23. P ro d u c ts L ia b ility =23 In Pennsylvania, duty to provide a non defective product is nondelegable, and a product sold with an inadequate w arning may be considered to be defective. 24. D ru g s a n d N a rc o tic s =18 By obligating the C enter for D isease Control (CDC) to provide eith er a learned 28. N e g lig e n ce =>56(1.1, 1.3) T o rts =15 P roof o f proxim ate causation is one of tw o necessary causation elem ents, the oth e r being cause-in-fact, in a to rt case pro ceeding under theories o f stric t liability and negligence. 29. N egligence ^=56(1.4) interm ediary o r an "im portant inform ation "P ro x im ate c au se" is defined as a sub statem e n t" fo r th e b en efit of vaccine recipi stan tial c o n trib u tin g fa c to r in brin g in g ent, m an u facturer w as m erely assigning to about the harm in question; proxim ate cau the CDC the ta sk o f ensuring a particular sation determ ination is nothing m ore than 242 7-12 FEDERAL SUPPLEMENT the assignm ent of legal responsibility for particular injury. See publication W ords-and Phrases for other judicial constructions and definitions. 30. D rugs an d N arco tics =18 A ssum ing th at plaintiffs have estab lished both a duty to w arn and a failure to w arn, they m ust fu rth er establish proxi m ate causation by showing that, had the drug m anufacturer issued proper w arnings to learned interm ediary, he would have al tered his behavior and the injury would have been avoided. 31. D rugs a n d N a rc o tic s =18 If school n u rse w ere found to have acted as learned interm ediary with respect to vaccination of stu d en t, and if she would not have changed her conduct and would have allowed stu d en t to receive vaccine even if she had read an adequate package circular, causal chain would be broken with respect to the m an u factu rer and m anufac tu re r would be absolved of any liability for failure to provide an adequate package cir cular. field is on th e s o u n d n e ss o f th e e x p ert's m ethodology which leads him to a certain conclusion ra th e r than on the conclusion itself. F e d .R u le s E vid.R ule 703, 28 U.S. C.A. 36. E vidence =556 R easo n ab le e x p e rt, in the absence of his own study, could tu rn to medical litera tu re in th e re le v a n t field a s the basis for reaching an opinion and th e fact th a t he has relied on medical literatu re does not preclude him from testify in g as an expert. Fed.R ules E vid.R ule 703, 28 U.S.C.A. 37. Evidence =556 D octors testify in g as experts could not base their opinions th at, to a reasonable degree of medical certainty, particular vac cine caused child's illness on medical stud ies th at only stated th a t th ere was a possi ble link betw een the vaccine and the dis ease; possibility th a t there was a cause and effect relationship betw een the two was not enough to su p p o rt th eir ex p ert testimo ny. F e d .R u le s E v id .R u le 703, 28 U.S.C.A. 32. N egligence =61(1) There can be more than one proxim ate cause of an injury. 33. D rugs and N arcotics =21 Because of high degree of scientific complexity as to w hether mumps, m easles, and rubella vaccine caused child's subacute sclerosing pariencephalitis (SSPE), proof of causation had to be established by expert testim ony. 34. Evidence =544 Lim ited clinical and practical experi ence which physicians had with m easles vaccines and subacute sclerosing panence phalitis (SSPE) w ent to the w eight to be afforded to th e ir testim ony th a t child's SSPE was caused by m easles, mumps, and rubella inoculation, b u t did not preclude them from testifying as experts. 35. E vidence =555.4(4) Prim ary focus of rule th a t data relied upon by e x p e rt n eed n o t be ad m issib le in evidence if it is o f the type reasonably relied upon by e x p e rts in th e p a rtic u la r David R. D earden, Sprague, Higgins & Cream er, Philadelphia, Pa., fo r plaintiffs. K enneth C. Frazier, Jo an n e L ahner, San d ra L. Ykema, Philadelphia, Pa., for defen dant. O P IN IO N DITTER, D istrict Judge. Plaintiffs Lisa M arie M azur and her par ents, A nthony and Edna M azur, claim that Lisa contracted subacute sclerosing panen cep h alitis (" S S P E " ), a d e b ilita tin g , term inal disease of the central nervous system , as a re su lt of an inoculation with a measles, mumps, and rubella vaccine manufactured by d e fen d an t M erck & Co., Inc. Before me is d e fe n d a n t's m otion fo r s u m m a ry ju d g m ent and to exclude plaintiffs' expert testi mony. The M azurs b ro u g h t this diversity action assertin g claims o f stric t liability and negli gence for both design and m anufacturing defects and fo r failure to provide an ade quate w arning, breach and reckless breach 973 O-rtn M AZU R v. M E R C K & C O .. IN C . a 742 F.Supp. 239 (E.D.P. 1990) 1$ * ? ;^ - 0f the implied w a rra n tie s o f m erch an tab ili- R o b e rt G. S b a rr a r , M.D., li 4, a tta ch e d as ty and fitn e ss fo r a p a rtic u la r p u rp o se, M erck 's ex h ib it B (" S h a r r a r a ff." ). The J '"Vit .V intentional and n e g lig e n t m isre p re se n ta - School B oard o f H e alth adopted th e re g u la tion, and n e g lig e n t infliction o f em otional tion an d a u th o riz e d th e H e alth D e p artm e n t f i t S 'X distress. T hey see k co m p e n sa to ry an d pu- to ex clu d e an y s tu d e n t in k in d e rg a rte n nitive d am ag es. through tw elfth grade from any Philadel 1 '; Merck moves fo r su m m ary ju d g m en t and for exclusion o f the ex p ert testim ony of plaintiffs' w itnesses.1 It contends th a t federal regulation of vaccine m anufacturing, distributing, and labeling preem pts the Ma*urs' to rt claim s in th e ir entirety . A lternafjvely, M erck m a in ta in s th a t th e to r t claim s of the M azur parents are barred by the applicable Pennsylvania sta tu te o f limitations. 42 Pa.C.S.A. 5524(2) and (7). It also argues th a t I should find as a m atter of law th a t it did not breach the duty to warn recipients of the vaccine of its risks, f if e :.? ' *' A fter co n sid erin g th e fa c ts p re s e n te d by i/'vsit'."-'- mg the parties in a light m ost favorable to the plaintiffs, the motion fo r partial sum m ary ju d g m en t will be d en ied in p a rt. A s I will explain more fully below, I find th a t Con gress did not p reem p t s ta te to rt claim s f e asserted by a victim of an adverse reaction to a Food and D rug A dm inistration-ap m proved vaccine. A reasonable ju ry could find for eith er side on th e s ta tu te of lim ita M i tions issue. H ow ever, I will reserve judg- en* on Qu e s tion o f w h e th e r M erck h a s shown as a m atter o f law th a t it did not breach its duty to w arn o f the dangers Sfe-' .ars,sociated w ith th e vaccine. sSsiv-; I. FACTS phia school, public or private, if he or she w as not vaccinated ag ain st measles, m um ps, rubella, polio, diphtheria, and te ta nus or had not naturally acquired immunity by h a v in g th e d isease. S h a rr a r a ff. a t li 5. School n u rses w ere instructed to review the health records o f approxim ately 300,000 stu dents to determ ine the vaccines each one needed, if any, and to obtain w rit ten perm ission from parents to have their child vaccin ated . Id. a t 1115. P a re n ts w ere required to docum ent previous immu nizations or prior illnesses. If adequate p roof w as not forthcom ing, the child was considered unimmunized and was later vac cin ated . Id. a t II16. The H ealth D epartm ent, through Dr. Sharrar, contacted the United States Cen ter for D isease Control ("CDC") of the D epartm ent of H ealth and H um an Services fo r assistance in designing a program for th e ch ild ren . Id. a t II 7. Follow ing a rec ommendation of the CDC, Dr. S harrar de cided th a t com bined vaccines would be used in th e inoculation p ro g ram . H e chose M M -R II ("MMR II") as the vaccine for the sim ultaneous immunization against m ea sles, m u m p s, a n d ru b e lla . Id. a t 118. MMR II is m anufactured by M erck under a license from the Food and D rug Adminis . In response to a m easles epidem ic am ong tratio n ("FD A "). MMR II is a live virus ?j\. school children in P h ilad elp h ia in th e la te vaccine fo r im m u n ization a g a in s t all th re e i?. I970's, th e C ity o f P h ilad elp h ia, D e p art- childhood d ise a se s. T h e m e a sle s p ortion o f m ent o f Public H ealth ("H ealth D ep art MMR II contains an atte n u ate d line o f m ea m ent") proposed a regulation th a t would sles virus, which w hen injected into the req u ire all ch ild ren a tte n d in g an y school in body c a u se s it to g e n e r a te antib o d ies to jj'.V Philadelphia to be v accin ated a g a in s t eer- w ard o ff a m e a sle s infection. M MR II is tain pediatric diseases as a condition of packaged in containers which include an continued school attendance. A ffidavit of insert describing the risks associated with ' Merck styles its motion as one for summary - Judgment. I presume that Merck intended that hs motion would effectively end the litigation, at least on the district court level. I do not sec - it that way, however. Summary judgment on all of the Mazurs' claims would be appropriate C - ` only if I found that the extensive federal regula- ... l'on of vaccines preempted all of their claims or if I found that the Mazurs could not prove that the MMR II vaccine caused Lisa's injuries. If not, there are some claim s, such as the design defect charge, that were not addressed by the parlies in their briefs and remain viable. There fore, I will treat Merck's motion as one for partial summary judgment. 244 7-12 F E D E R A L S U P P L E M E N T the v accin e's use. The A pril, 1981, p a ck age insert contained the following perti nent inform ation about the risk of contract ing SSPE from the MMR II vaccine: There have been reports of subacute sclerosin g p a n en eep h alitis (SSPE) in chil dren who did not have a history of n atu ral m easles b u t did receive m easles vac cine. Some of these cases m ay have re su lte d fro m un reco g n ized m easles in the first year of life or possibly from th e measles vaccination. Based on estim ated nationwide m easles vaccination distribu tion, the association of SSPE cases to m easles vaccination is about one case per million vaccine do ses d istrib u te d . T his is far less than the association w ith natural m easles, 5-10 cases of SSPE per million cases of measles. The results of a retro spective case-controlled study conducted by the C enter for D isease Control su g gest th at the overall effect of m easles vaccine has been to protect ag ain st SSPE by preventing m easles w ith its inherent risk of SSPE. According to the package circular, the vac cine is indicated for im m unization "in chil d re n 15 m o n th s o f a g e o r older, and adults." Additionally, it included the fol lowing paragraph about revaccination: Based on available evidence, there is no reason to routinely revaccinate children originally v accinated w hen 12 m o n th s o f age or older; however, children vaccinat ed w hen y o u n g e r th a n 12 m o n th s o f a g e should be revaccinated. The decision to revaccinate should be based on evalua tion o f each individual case. The FDA approved the package circular before it w as included with the vaccine. A ffid av it o f W illiam B. Freilich, 114, a t tached a s M erck's ex h ib it A (" Freilich a ff."). The MMR II vaccines w ere purchased from M erck by th e CDC a t D r. S h a r r a r 's req u est. A t first, M erck would not sell the v accines to th e CDC. M erck relented when th e CDC c o n tra c tu a lly a g re e d e ith e r to assure that a physician would be present at inoculation or to provide MMR II recipients o r th e ir p a re n ts w ith w h a t M erck and it believed to b e an a d e q u a te w a rn in g of the risk s associated w ith MMR II immunizatio n .2 Freilich a ff. a t 1115. T he CDC d raft ed an " Im p o rta n t In fo rm a tio n S ta te m e n t1' to be s en t to all p aren ts of school age ch ildren. Id. a t 1122 and e x h ib it 6. The s ta te m e n t w a s d esig n ed to allow p a re n ts to w eigh th e b en efits a g a in st th e known risks o f M MR II vaccin ation in a m a n n e r they would ordinarily com prehend. The Impor ta n t Info rm atio n S ta te m e n t w as sen t home to p a re n ts via th e ir children. M erck's ex hibit R a t 45. L isa M azur, th e M a z u rs ' fo u rth child, w a s b o rn on A u g u s t 11, 1969. L isa 's medi cal history prior to 1982 w as fo r the most p a r t u n re m a rk a b le . L isa 's th re e siblings all had m easles and G erm an m easles (ru bella) p rio r to L isa 's b irth . M a z u rs' exhibit 2 a t 59. On O c to b er 11, 1973, L isa received a m easles vaccine and a G erm an measles vaccine from h er private physician. Prior to F ebruary, 1982, Lisa had not received a m um ps vaccine and had no t naturally ac quired im m unity to the m um ps. From late 1979 th ro u g h Jan u a ry , 1982, Lisa was tre a te d on a n u m b e r o f occasions fo r colds, a sore throat, allergies, and pharyngitis. On J a n u a ry 8, 1982, Lisa u n d erw en t a ton sillectom y. D uring th a t time, she was a stu d en t a t the M orrison School in Philadel phia. M rs. M azur claims th a t she never re ceived the Im portant Inform ation State m en t or any o th e r w arning ab o u t th e risks o f MMR II inoculation. Yet, she admits th a t she saw tw o docum ents apprising her o f the im m unization p ro g ram . M azurs' ex 2. The CDC and Merck signed three purchase contracts for the MMR II vaccines to be provid ed to the Health Department. Each contract contained the following language: [CDC], represents and agrees that it will (1) take all appropriate steps to assure that all vaccine supplied to various locations within the 50 states, . . . pursuant to the terms of this contract, shall be administered to each patient on the basis of an individualized medical judgment by a physician, or (2) take all appro priate steps to provide to such a patient (or to the patient's parent or guardian) meaningful warnings relating to the risks and benefits of vaccination, in form and language understandable to such patient, parent or guardian. Freilich aff. at (I 17 and exhibits 3, 4, and 5. MAZUR v. M ERCK & C O ., INC. Clw a t 742 F.Supp. 219 (E.D.Pa. 1990) 245 2 a t 106-108. One o f th e tw o doc- a t h e r p a re n ts ' re q u e st, a g reed w ith the jdienU she received w as a le tte r fro m the e a rlie r d ia g n o sis o f S S P E . gjhool D istrict with an attached stu d en t Immunization record and p aren tal perm is II. IP R E E M PT IO N j sion form. M a z u rs' ex h ib it 10. T he le tte r Merck contends th a t the pervasive explains the im m unization pro g ram and schem e o f fed eral reg u latio n govern in g the what each p aren t m u st do either to allow production, labeling, and distribution of inoculation or to p rev en t it. Id. M rs. Ma vaccines im pliedly p re e m p ts th e M azurs' xim sta te s th a t sh e re a d th e le tte r and P e n n sy lv an ia to r t claim s fo r b re a ch o f th e permission form b u t refu sed to sign it or d u ty to w arn recipients o f a vaccine o f its return it unsigned to the school. M azurs' hazards. The concept of preem ption has e x h ib it 2 a t 109. In an y ev en t, upon le a rn its ro o ts in th e su p re m a c y clau se o f th e ing of the im m unization p ro g ra m , M rs. Masu r called th e school principal and the ^ Board of Education to inform them th a t OTytf-.- U sa had received a m e a sle s vaccine in 1973 S ' and to p rotest any revaccination." M azurs' C o n stitu tio n , a r t. V I, cl. 2. T h e re a re tw o types o f preem ption: ex press and implied. Hillsborough C ou nty v. Autom ated Medi cal Laboratories, 471 U.S. 707, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985).s ' ' f 'S ' exhibit 2 a t 109-21. A s a p re c au tio n , M rs. [1] Im plied preem ption m ay arise in ei Mazur kept Lisa out of school for approxi- th er of tw o w ays. F irst, C ongress may 'v T i xnately a w eek b e fo re s e n d in g h e r back ju s t prior to the day of the im m unization program a t L isa's school. Id. a t 117. M rs. 1 W ; Mazur claims th a t she did no t provide writ- W k ten or oral perm ission fo r Lisa to receive i p g i (he MMR II vaccination. N evertheless, Lisa received an MMR II vaccine sh o t on February 26, 1982. 1 a On S e p te m b e r 7, 1983, L isa w a s ad m itte d j g f e to St. C h risto p h e r's H o sp ital fo r C hildren in ' jv Philadelphia fo r te sts because o f "personal>f;i. i f changes in th e p a s t six m o n th s w ith abnormal m ovem ents in th e p a st few w eeks.'' M az u rs' ex h ib it 14. A fte r re view ing L isa 's e le ctro en c e p h alo g ra m re sults, one of her doctors stated th at SSPE indicate an intent to occupy an entire field o f reg u latio n , in w hich case th e s ta te s m u st leave all reg u la to ry activity in th a t area to the federal governm ent. Fidelity Federal Savin gs & L o a n A ssoc, v. D e la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). Second, C o n g ress m ay p reem p t state law to the e x ten t th a t state law actu ally conflicts w ith federal law. Such a conflict arises when compliance w ith both federal and state law is impossible or w hen state law fru strate s th e purposes of federal law. Michigan Canners and Freezers A s soc. v. A g r ic u ltu ra l M arketing an d B a r gaining Board, 467 U.S. 461, 104 S.Ct. 2518, 81 L .Ed.2d 399 (1984). should be "seriously co n sid ered ]" as a There is no question th a t federal regula cause of h er physical and behavioral prob tion o f vaccines, such a s MMR II, is com lems.1 M azurs' exhibit 14. In late Septem prehensive. M MR II is su b ject to th e pro- ber,- 1983, L isa 's d o c to rs a t S t. C h risto visions o f th e F e d e ra l Food, D ru g , an d pher's m ade a " p re su m p tiv e " d iag n o sis o f C osm etic A c t (" FD C A "), 21 U .S.C. 301 et SSPE. M az u rs' e x h ib it 15. O n N o v e m b er seq, an d th e P u b lic H e a lth Service A c t 2, 1983, a n o th e r d o cto r, w ho ex am in ed L isa (" P H S A "), 42 U .S.C . 215 et seq. B oth 3*,. As a result of the fact that the MMR II vaccine ic jerks are often seen. In its final stages, SSPE . ;>s a combined vaccine, Lisa would receive a causes increased mental and physical decline second dose of measles and rubella virus. which often leaves the patient incapacitated. .4 SSPE is a fatal, slowly progressing, inflamma- lory disease o f the central nervous system. . SSPE most often strikes children between the ages of four and twenty. The onset of the disease is marked by insidious mental dcteriora- Death usually occurs within one to three years. See, e.g., The Merck M anual. 2041 (Merck Sharp & Dohme Research Laboratories, 15lh ed. 1987); Harrison's Principals o f Internal Medicine, 2096 (R. Petcrsdorf, 10th ed. 1983). e lion and psychological disturbances. Ncurologv ical and motor dysfunctions such as convul- 5. Merck makes no claim that Congress expressly : . sions, seizures, visual difficulties, and myoclon- preempted slate tort law. 246 742 FEDERAL SUPPLEMENT regulations govern nearly every aspect of vaccine testing, design, production, label ing, and distribution. For exam ple, each vaccine m anufacturer m ust file with the FDA a detailed application for a license to begin testin g a new vaccine, inform the FDA of production and distribution plans, and if approved, com plete periodic updates containing a broad spectrum of inform a tion. 21 C.F.R . 600 et seq. Sim ilarly, th e vaccine label and package circular m ust receive fe d e ra l ap p ro v al. 21 C.F.R . 1, 201. The FDA requires extensive inform a tion to be included on the label and package circular, such as the composition of the vaccine, the expiration date, the sto rag e directions, the indications and contraindica tions o f vaccine usage, and the potential a d v e rse reactio n s. 21 C .F .R . 610.60610.65. The language of the label and package circular is subject to FD A scrutiny and cannot be changed w ithout FDA autho rization . 21 C.F.R . 601.12. [2-4] Preem ption of state to rt law, however, does not autom atically follow ex tensive federal regulation. Hillsborough, 471 U.S. a t 715, 105 S.Ct. a t 2376. Vaccine regulation, like the regulation of other pre scription products, is prim arily, b u t not ex clusively, a federal concern. S tate reg u la tion of these products plays an im portant and legitim ate role and should not be dis placed unless exceptional circum stances w arran t it. In o th er w ords, in th e absence o f express preem ption, th ere is a strong presum ption th a t C ongress did not intend to displace s ta te law . M a ryla n d v. L o u isi ana, 451 U.S. 725, 726, 101 S.Ct. 2114, 2118, 68 L.Ed.2d 576 {1981).* M oreover, th is p re su m p tio n a g a in s t pre e m p tio n is even stronger when state regulation of m a tte rs re la te d to h e alth and s a fe ty is in volved, Hillsborough, 471 U .S. a t 715, 105 S.Ct. a t 2376, and w hen federal regulation would work to preem pt state to rt remedies, Silkw ood v. K e rr-M cG e e Corp., 464 U.S. 238, 251, 104 S.C t. 615, 623, 78 L.E d.2d 443 (1984). H ere, if federal reg u latio n o f vac cines is exclusive, P e n n s y lv a n ia 's ability to best protect its citizens from the dangers o f vaccine u se is s ev e re ly ha m p e re d and it leaves those Pennsylvania citizens harmed by vaccines w ithout a state to rt remedy. Hence, I agree with the g re a t m ajority of courts addressing this issue th a t Congress did not impliedly p reem pt sta te regulation of vaccine m anufacture, distribution, and labeling.' M erck's p re e m p tio n a r g u m e n t is fu rth e r diluted by the N ational Childhood Vaccines In ju ry A ct o f 1986 ("N C V IA " ), 42 U.S.C. 3 0 0aa-33. T h e N C V IA cle arly show s th a t Congress intended state to rt remedies to rem ain in e ffe c t despite extensive feder al regulations. The N CVIA w as enacted to provide an alternative to the courts for the redress of vaccine-related injuries. The N CVIA established a fu n d from which indi viduals injured by vaccines m ay receive compensation if certain statu to ry require m ents are m et. The N CVIA does not elimi nate, however, the state to rt system as an avenue of redress. It has num erous refer ences to the state to rt system and express ly provides th a t "[s jta te law shall apply to a civil action b ro u g h t fo r d am ag es for a vaccine-related injury o r d e ath ." 42 U.S.C. 300aa-22(a). Sim ilarly, it provides that: 6. In Hillsborough, the Court explained that: because agencies normally address problems in a detailed manner and can speak through a variety of means . . . we can expect that they will make their intentions clear if they intend for their regulations to be exclusive. Thus, if an agency does not speak to the question of pre-emption, we will pause before saying that the mere volume and complexity of its regula tions indicate that the agency did in fact in tend to preempt. 471 U.S. at 715, 105 S.Ct. at 2376. 7. See, e.g., Hurley v. Lederle Laboratories Divi sion o f American Cyanam id Co., 863 F.2d 1173 (5th Cir.1988), rev'g Hurley v. Lederle Lahorato- ries, 651 F.Supp. 993 (E.D.Tex.1986); Abbot v. American Cyanam id Co., 844 F.2d 1108 (4th Cir.), cert, denied 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 248(1988), rev'g 1988 U.S.Dist.Lexis 14355 (E.D.Va.1987); Jones by Jones v. Lederle Laboratories, 695 F.Supp. 700 (E.D.N.Y.1988); Foyle by McMillan v. Lederle Laboratories, 674 F.Supp. 530 (E.D.N.C.1987); M artinkovic v. Wyeth Laboratories, Inc., 669 F.Supp. 212 (N.D. 111.1987); Afoms t*. Parke, Davis dt Co., 667 F.Supp. 1332 (C.D.Cal.1987); MacGillvray v. Lederle Laboratories, 667 F.Supp. 743 (D.N.M1987); Graham v. Wyeth Laboratories, 666 F.Supp. 1483 (D.Kan.1987); Patten v. Lederle Laboratories, 655 F.Supp. 745 (D.Utah 1987). 375 <0- o a MAZUR v. MERCK & CO., INC. Clle aa 742 F.Supp. 239 (E-D.Pa. 1990) 247 .; [n]0 state may e sta b lish o r e n fo rc e a law ily ab so lv e th e m a n u fa c tu re r o f a ll liability. h which prohibits an individual fro m bring- See, e.g., Brochu v. Ortho P harm aceu tical - ing a civil action a g a in s t a vaccine m anu- Corp., 642 F .2d 652, 658 (1 st Cir.1981). , facturer for dam ages for a vaccine-relat- M anufacturers m ust m eet state safety re i ed injury o r d e a th ----- quirem ents, w hether codified o r embodied Id. a t 300aa-22(e). T h e se sectio n s c e r in th e com m on law , in addition to s a tisfy in g tainly m anifest C ongress' in ten t to pre the initial FDA requirem ents. serve traditional state to rt rem edies for Second, federal regulation serves a very redress of injuries related to vaccine use. different purpose than state to rt law. E s >' Merck a rg u e s a lte rn a tiv e ly th a t e v en if sen tially , fe d e ra l re g u la tio n se rv e s a d e te r federal regulations do not preem pt state re n t purpose by lim iting the m anufacture regulation of vaccine labeling generally, I o f inherently dangerous products to those should find th a t C ongress intended to applicants who m eet certain s trin g e n t safe preempt the more narrow field o f "state ty standards, while state to rt law serves regulation of the inform ation to be provid the equally im portant purpose o f com pen ed to the medical com m unity reg ard in g the satin g individuals injured by those very . . . association betw een the adm inistration sam e products. Since com pliance with of m easles vaccine an d S S P E ." M erck 's FD A re g u la tio n s will n o t e n s u r e th a t a mem. in sp p t. a t 52. M erck s u g g e s ts th a t m a n u fa c tu re r's p ro d u c ts will n o t c a u s e in preemption is intended because d u rin g the ju ry , com pliance will n o t necessarily ex mid-1970's th e CDC studied th e relatio n em p t a m an u fa c tu re r from liability. W hen ship, if any, betw een m easles vaccines and SSPE. The results of the study, published in M orbidity an d M o rta lity W eekly R e those products do cause injuries, the state to rt system provides a m eans of com pensa tion. S tate to rt law is intended to supple port, 359-60 and 365 (N o v e m b e r 19, 1976), m e n t fe d e ra l re g u la tio n b y p ro v id in g a v e were then sen t to M erck by the FDA with hicle fo r com pensation of vaccine-related the "suggest[ionj th a t you review your injuries.8 package circular . . . and revise . . . [it] . . . appropriately to reflect these modifications of earlier recom m endations." M azurs' ex hibit 54. [6] Merck also contends th a t federal regulation o f vaccine labels and package circulars would be underm ined if sta te law required th a t they contain d ifferent infor ]' [5] I have no d o u b t th a t b e ca u se o f th is m atio n th a n th a t a lre a d y a p p ro v e d b y the prodding by th e FD A , M erck's p a ck a g e cir FD A . M erck c ites Cip p olo n e v. Liggett, cular reads as it does; how ever, m ere com 789 F.2d 181 (3d Cir.1986), cert, denied, 479 pliance w ith an FD A su g g estio n , o r for U.S. 1043, 107 S.Ct. 907, 93 L .E d.2d 857 th a t m atter, regulation o r order, does n o t (1987), fo r its tw o-pronged an aly sis o f mean th a t state to rt law becomes irrele w hen state law so conflicts w ith federal vant. First, compliance w ith an FD A reg u law as to require th a t state law yield.8 The lation may establish th a t th e m an u factu rer analysis begins w ith a determ ination o f the m et the appropriate minimum stan d ard s of purposes of federal law. The c o u rt should due care, but compliance does not necessar n ext determ ine w hether a sta te law would 8. The Commissioner of Food and Drugs at the (;FDA disavowed any intention to preempt stale ""tort law with its labeling rules. "It is not the ^intent of FDA to influence (he civil tort liability f the manufacturer or o f the physician. Rather, it is the agency's intent to ensure that a ' ^'complete and accurate explanation of the drug " is provided to the medical community." Bansem er v. S m ilh Laboratories. Inc., 1988 U.S. Disl. Lexis 16208, 16215 (E.D.Wis. September 12, '88) (quoting 44 Fed.Reg. 57,437 (1979)). See i also 43 Fed.Reg. 4214 (January 31, 1978). . Cippolone is a good example of when preemp tion is intended. In Cippolone, (he Third Circuit focused on the Federal Cigarette Labeling and Advertising Act, 15 U-S.C. 1331 er seq. That Act prescribed the exact wording of the label to be placed on cigarette packages and included a preemption provision which precluded stale leg islatures from requiring warnings on cigarette packages which differed from those mandated by the Act. There is no such provisions in the FDCA or PHSA. See In re Tetracycline Cases, 1989 U.S. Disl. Lexis 4130, 4143-45_(W.D.Mo. March 29, 1989).-- - - '-v-- .......... ........' 248 7-12 FEDERAL SUPPLEMENT fr u s tr a te th e purposes o f federal law. id. a t 187. U sing this analysis, 1 once again hold th a t no fin d in g o f preem p tio n is w a r ranted. I accept, for the sake of argum ent, M erck's contention th at the purpose behind FD A re g u la tio n o f lab elin g is u n ifo rm ity .10 B ut if a state jury determ ines th a t Merck should have disclosed more inform ation re g ard in g the causal link betw een SSPE and M MR I], if in fa c t th e re is one, see in fra a t 263, M erck can petition the FDA to allow it to ch an g e its p ack ag e in sert. 21 C.F.R. 601.12. Thus, M erck could m eet both federal and sta te law requirem ents. M ore over, it m akes sense from a policy stan d point to p erm it civil ju d g m en ts to su p p le m ent federal regulations. As the Court of A ppeals for the D istrict of Columbia noted in th e re la te d a re a o f herbicide re g u la tio n by the Environm ental Protection Agency C E P A " ): successful actions of this so rt m ay lead m an u factu rers to petition EPA to allow m ore detailed labelling of their products; alternatively, EPA itself may decide th at revised labels are required in lig h t of new inform ation th a t has been brought to its attention through common law suits. In addition, the specter of dam age actions m ay provide m anufacturers with added dynam ic incentives to continue to keep ab reast of all possible injuries stem m ing from use of th eir product so as to forestall such actions through product im provem ent. Ferebee v. Chevron Chemical Co., 736 F.2d 1529, 1542-43 (D.C.Cir.), cert, denied 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984).11 R a th e r th a n w o rk in g a t odds w ith each other, federal regulation and state com m on law a ctin g in c o n ce rt can improve vaccine safety of existing vaccines and sp u r the developm ent of im proved vaccines. A ccordingly, I find P en n sy lv an ia to rt law is not preem pted by federal regulation of vaccine m anufacture, distribution, and la belin g , in g e n eral, and w ith re s p e c t to S S P E in fo rm atio n in th e pa ck a g e circular, in p a rtic u la r. T h erefo re, M erck's motion fo r p artial sum m ary ju d g m en t on this gro u n d will be denied. III. STATUTE OF LIMITATIONS Lisa M azur received the MMR II vaccina tion on F ebruary 26, 1982. The Mazurs filed th is action on O ctober 31, 1985. M erck contends th a t the to rt claims of L isa 's p a re n ts a re b a rre d u n d e r P ennsylva n ia 's tw o y e a r s ta tu te o f lim itations.12 42 Pa.C .S.A . 5524(2) and (7). O rdinarily, the tw o y e ar s ta tu te would be a b a r to this action; however, Mr. and Mrs. M azur may b e en title d to invoke th e "discovery ru le " in o rder to extend the period of limitations. U rla n d v. M errell-D ow Pharm aceuticals, 822 F.2d 1268 (3d Cir.1987). [7 ,8 ] W here an injured person is un ab le, " d e sp ite th e e x ercise o f diligence, to determ ine the injury or its cause," the dis covery rule tolls the running o f the statute of lim itations. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 P a. 80, 84, 468 A.2d 468, 471 (1983). The rule provides th a t the lim itations peri od begins to run when the plaintiff knows o r should know : (1) th a t he h as been in ju re d , an d (2) th e in jury h as been caused by a n o th e r p a rty 's conduct. Cathcart v. Keene Industrial Insulation, 324 Pa.Sup e r. 123, 135-37, 471 A.2d 493, 500 (1984). 10. I disagree with ihis conlenlion, but I see no from by remaining silent and relying on lack of reason to belabor the issue. I suggest that a prior FDA approval." Id.; see also MacCillvray concern for the safety of consumers plays a v. Lederle Laboratories. 667 F.Supp. 743, 745 more vital role. (D.N.M.1987) ("Public policy militates against 11. In the Tetracycline Cases, the court raised a similar point. The court posited that the com mon law duly to warn carried with it a duty to seek FDA approval of additional warnings. In re Tetracycline Cases. 1989 U.S. Disl. Lexis at finding as a matter of law that FDA approval of a particular drug product relieves a pharmaceu tical company of further responsibility to con tinue research and testing to develop safer prod ucts."). 1448. The court further opined that '`[t]o find otherwise would allow a manufacturer, having 12. The running of the statute of limitations as to learned of additional side effects or precautions, Lisa's tort claims is lolled during her minority. to escape liability for injuries resultant there- 42 Pa.C.S.A. 5533(b) (1984). o \ 976 C7 M AZUR V. M E R C K & C O ., IN C. CUe at 7 F.Supp. 239 (E D.Pa. 1990) 249 The proverbial clock s ta r ts to tick w hen th e hibit 17. I t is u n c le ar w hen th e M azurs injured p arty "possesses su fficien t critical w ere inform ed o f this confirm atory opinion. facts to put him on notice th a t a w rong has The discharge sum m ary, dated D ecem ber been com m itted and th a t he need in v e sti 21, 1983, o f L isa 's N o v e m b er v isit to St. gate to d eterm ine w h e th e r he is en title d to C h risto p h e r's includes th e fir s t un q u alified redress." Zeteznik v. U n ited States, 770 d iag n o sis o f S S PE . M a z u rs' ex h ib it 18. F 2 d 20, 23 (3d Cir. 1985), cert, denied, 475 W hen all th e fa c ts a re exam ined, it see m s U S . H 08, 106 S.Ct. 1513, 89 L.Ed.2d 913 th a t u n til th en , a t b e st, L isa 's d o cto rs be (1986). W ith re s p e c t to th is case, th e sali- lieved th a t in all likelihood sh e had S S P E ht issues a re (1) w hen did Mr. an d M rs. b u t th e y could n o t m ake a defin ite s ta te fMpg!)'Mazur know, o r w hen should they have m e n t to th a t effect. ivjhK "; icnown, th a t Lisa had S S P E ; an d , (2) w hen did they know, or w hen should they have known, th at MMR II w as the cause of the SiiiM disease." As to both questions, on the t ; record before me, I conclude th a t genuine S s l? issues of m aterial fa c t req u ire resolution a t H i'tria l.' The parties' subm issions create an issue The M azurs contend th a t they cannot be held to a higher stan d ard of knowledge than L isa's doctors. They arg u e th a t if the medical personnel who saw Lisa could not come to a definitive conclusion about her illness until N ovem ber, 1983, it would be unfair to presum e th a t the M azurs, who a re not experienced in th e medical field, I the SSPE diagnosis. On th e one hand, in S, late S eptem ber, 1983, L isa 's d o cto rs, a f te r reviewing the resu lts of a broad range of diagnostic tests, discharged her from St. g? Christopher's w ith a diagnosis o f "p re sumptive subacute sclerosing panencephali'tis." M azu rs' ex h ib it 15. T h e c o n su ltatio n reports filled ou t by th e num erous doctors -who exam ined L isa in S e p te m b e r all include i SSPE as a possible, if not probable, cause J j ? of- Lisa's illness. Id. A dditionally, M rs. S,,-M azur acknow ledges in deposition th a t a ' $ 1 Dr; i Foley a t St. C h risto p h e r's told h e r a t gf -some unspecified tim e th a t L isa had SS PE . M erck's exhibit D a t 141. Each of these ' facts tends to show th a t the M azurs knew ' qr should have known th a t Lisa had SSPE before O cto b er 31, 1983. On th e o th e r ( hand, the discharge sum m ary and many of f the c o n su ltan t's re p o rts include o th e r possi- & bilities fo r L isa's illness, su ch a s "L e ig h 's ^ encephalopathy or seizure disorder." Ma,, z u r's exh ib it 15. In his deposition, L isa 's `tre a tin g physician, D r. W a rre n G rover, knew or should have known th at she had SSPE before O ctober 31, 1983. This a rg u m en t finds su p p o rt in the Pennsylvania c ase o f Trieschock v. Owens C o m in g F iberglas Com pany, 354 P a.S uper. 263, 511 A.2d 863 (1986), alloc, denied, 514 Pa. 617, 521 A .2d 932 (1987). In th a t case, as p a rt of a routine medical check-up conducted by his em ployer in M arch, 1982, Trieschock was told by the com pany doctor th a t he was suspected of having asbestosis. On April 8, 1982, th a t diagnosis w as confirm ed by an independent specialist. Trieschock filed su it on April 6, 1984. The court opined that: [a] plaintiff in a creeping disease case should not be required to have g reater know ledge th an his physicians about his medical condition. If those physicians are not reasonably certain as to his diag nosis, then he certainly cannot be bound to have the knowledge necessary to s ta rt the statu te of lim itations running. 354 Pa.S uper. a t 268, 511 A.2d a t 866. rs tated th a t th e te rm " p re su m p tiv e " im plied 4hat the diagnosis was not final. M azurs' exhibit 52 a t 14. A t th e M azurs' req u e st, a "second doctor, Sam uel H . T u ck er, M .D., .^confirmed the "presum ptive" SS PE diagno H ere, it is possible th a t L isa's doctors could not identify her illness w ith a reasonable degree of certainty until early November, 1983. It m ay be th a t upon fu rth e r exam i nation of the facts a t trial, a ju ry could s i s in a le tte r d ic ta ted on O cto b er 28, 1983, conclude th a t th e M az u rs knew in S e p te m 'Mandd.Jrdva,t,ed N o v em b er 2, 1983. M azu rs' ex- b e r o r O ctober, 1983, th a t L isa h ad S S PE. : 13. Of course, the issue of whelher the MMR II vaccine caused the disease has not been re- solved. See infra at 263. I am merely assum ing causation for this limited purpose. 250 742 FEDERAL SUPPLEMENT A reasonable ju ry could also find th at the "presum ptive" diagnosis of SSPE triggered a duly of diligent investigation as to the cause of Lisa's illness which w ent u nful filled, thereby preventing the application of the discovery rule to toll the running of the limitations period. However, the req u est th a t Dr. Tucker exam ine Lisa to confirm or refute the SSPE diagnosis m ight satisfy the requirem ent of diligent investigation. Additionally, on the scant record before me it is un fair to conclude th a t the M azurs knew or should have known the nature of L isa 's a ilm en t b e fo re it w as a sc e rta in e d with a reasonable degree o f certainty by the medical profession. E ven a ss u m in g arguendo th a t L isa 's parents knew that she had SSPE before O ctober 31, 1983, M erck 's m otion fo r p a r tial sum m ary judgm ent on the basis th at the statu te of lim itations ran still m ust be rejected. There is a genuine issue of m ate rial fact as to w h eth er Mr. and M rs. M azur knew o r should h ave know n th a t L isa 's S S P E w a s c au se d b y th e MMR 11 inocula tion. As I will discuss in g re a te r detail below, see infra a t 263, th e causation q u es tion is unresolved. Even the so-called ex perts cannot ag ree on the cause of L isa's illness a fte r six and a half y ears o f investi gation. Once again, I will no t hold Mr. and Mrs. M azur accountable to a g reater stan dard o f u n d e rs ta n d in g o f th e ir d a u g h te r's illness than her doctors. N onetheless, the contention th at the Ma zurs knew of the relationship between SSPE and m easles, and quite possibly, the MMR II vaccine, is not w ithout m erit. On ro rth , 11 4, a tta c h e d a s M erck's exhibit Y. (" F a iro rth a f f ." ). On th a t day, Ms. Fai ro rth en tered th e follow ing inform ation on L isa 's h e alth reco rds: T-C from N ancy W asser "Attorney S p ra g u e s ' [sic] office. W an ted info re m e a sle s s h o t d a te . A p p a re n tly Lisa is ill. C onf [w ith ] vice principal M s. C astle b e rry . L isa 's s is te r will com e in fo r copy of im m unization card. Med record from C reighton not in pocket. F a iro rth a ff. a t 114 and e x h ib it A. This e x ch a n g e c e rta in ly sh o w s th a t som eone in the M azur family th o u g h t there m ight be a re la tio n sh ip b e tw ee n L isa 's S S P E and her m easles shot. W hether this conversation show s th a t fo r statu te of lim itations pur poses the M azurs knew o r should have known o f th e causal link betw een SSPE and MMR II is an issue th a t m u st be left fo r a ju ry to decide. I t v e ry w ell m ay be th a t upon an exam ination o f the circum stances surrounding this phone call that a re a so n a b le ju ry could conclude th a t Mr. and M rs. M azur did, in fact, know o f the c a u sa l re la tio n sh ip b e tw ee n L isa 's SSPE and the MMR II inoculation. Then again, a reasonable ju ry could also conclude that th e phone call w as m erely p a rt of the fami ly's com prehensive effo rts to g a th e r infor m atio n re la tin g to L isa 's m edical history. B ecause there are genuine issues of materi al fa c t re la tin g to M erck's co n ten tio n th at the M azur p aren ts' to rt claims are barred b y th e s ta tu te o f lim itations, I will deny M erck 's m otion fo r p a rtia l s u m m a ry judg m ent on th at ground. Septem ber 29, 1983, three days a fte r Lisa was first discharged from St. C hristo IV. DUTY TO W ARN p h e r's, N ancy W asser, E sq u ire , th e n a ss o ciated with the law firm o f Sprague and A. The P arties' Contentions Rubenstone, now Sprague, Higgins, The M azurs ch arg e M erck w ith failing to C ream er & Sprague, the M azurs' p re sen t w arn them o f th e risks associated with the counsel, contacted the nurse, Jean ette W. MMR II vaccine before Lisa w as inoculat Fairorth, a t th e school w here Lisa w as ed. They allege th a t they never received enrolled .14 A ffid av it o f J e a n e tte W. Fai- a n y w a rn in g fro m e ith e r M erck o r the 14. Ms. Wasser avers that she was not retained as counsel by the Mazurs and only contacted the school nurse as a friend of the family. Affidavit o f Nancy Wasser, (I S, attached as Mazur's exhib it 53. Lisa's older sister, Deborah, was em ployed by Sprague & Rubenstone as a legal secretary. Id. at fl 3. However, Ms. Wasser apparently identified herself to Ms. Fairorth as an attorney in Sprague's office rather than as a family friend. Fairorth Aff. at H4 and exhibit A. to o l-a 6 MAZUR v. MERCK & CO., INC. Cll 1 7 F.Supp. 239 (E.D.P. 1990) 251 gchool before Lisa w as v accin ated .15 The M erck a rg u e s th a t u n d e r no circ u m stan c e s Mazurs assert claims o f strict liability and can the M azurs prove th a t MMR II caused negligence for failure to w arn. The Ma- Lisa to co n tra c t SSPE. A fte r considering rurs' duty to w arn claims depend on proof the parties' lengthy briefs on these issues, of fo u r facts: (1) M erck had a d u ty to 1 find th a t M erck's m otion fo r p a rtia l su m warn Lisa or h er p aren ts of th e health m ary judgm ent on th e d u ty to w arn claims hazards asso ciated w ith MMR II use; (2) m u s t be denied. Merck breached th a t d u ty ; (3) M erck 's breach proxim ately c au se d L isa's in ju ries; and (4) M erck's b re a ch a ctu ally cau sed Lisa's injuries. [n its defense, M erck arg u es th a t it did not have a duty to w arn the M azurs, bu t it needed to w arn only Dr. S harrar, who de cided th a t th e MMR II vaccine w ould be used, or some other "learned interm edi ary." See Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1276 (5th Cir.), cert, denied, 419 U.S. 1096, 95 S.Ct. 687, 42 L.Ed.2d 688 (1974). I t also m ain tain s th a t th e w a rn in g it provided to D r. S h a rrar w as ad eq u ate as a. m a tte r o f law, so it could n o t have breached the duty to warn. In the alterna tive, Merck contends th a t even if it had a duty to warn the M azurs directly, th a t duty was adequately fulfilled by the CDC when B. T he M a n u fa c tu re r's D u ty to W arn [9] O rdinarily, Pennsylvania follows Section 402A of the R estatem en t (Second) of T orts which im poses s tric t liability on th e m an u factu rer of a product sold "in a defective condition unreasonably danger ou s to th e u s e r o r c o n s u m e r___ '' Jncollingo v. Ew in g, 444 P a. 263, 287, 282 A.2d 206, 219 (1971). The pro d u ct m ay be con sidered in a defective condition if it is sold w ithout a w arning o f the hazards associat ed w ith its use. Jncollingo, 282 A.2d a t 219. The stric t liability rules for prescrip tion d ru g products, such as vaccines, are som ew hat different under Pennsylvania law. In Jncollingo, th e court found th a t there are som e products "which . . . [are] it issued the Im portant Inform ation S ta te . . . incapable o f being m ade safe fo r . . . ment to parents of potential vaccine recipi [their] intended use, such as new or experi ents. As for proxim ate causation, M erck m ental d rugs, as to which . . . there can be .. posits th a t D r. S h a rr a r's relian ce on a CDC no a ss u ra n c e o f s a fe ty , b u t . . . th e m a rk e t recommendation and on his own research ing and use o f th e d ru g notw ithstanding a i& J , absolves M erck o f cau sal liability. Finally, m edically reco g n izab le ris k " is ju s tifie d .16 . 13* Mrs. Mazur states in her deposition that Lisa did, in fact, bring home two documents, but not 3 v ;y -i.lh e Important Information Statement, that informed her of the scheduled immunization pro' gram at the Morrison School. Merck's exhibit r ' D at 104-05, and Mazurs' exhibit 2 at 106-108. Ilpb-?' ,c Mrs. Mazur admits that she read the letter and permission form but refused to sign it or return v ' it to the school unsigned. Id. at 109. Whatever c Mrs. Mazur saw. it was apparently enough of a S` warnln8 IO cause her to protest Lisa's pending , vaccination to the principal and the Board of Education and to keep Lisa out of school for a week as a precaution. Id. at 117. Ip Jncollingo, the court held that Chloromycctin, a broad spectrum antibiotic, fell within - lhis category of "unavoidably unsafe products." ''--^y __td. (quoting, Section 402A, comment k Restatej&'.i^Ltnent (Second) of Torts). MMR II, assuming ihat it was properly prepared and accompanied 2 proper warning, is also within this category f unavoidably unsafe products. This is evi..y^ drnced by comment k of Section 402A, which ...-' provides in pertinent part: ' Unavoidably unsafe products. There are V some products which, in the present stale of human knowledge, are quite incapable o f be ing made safe for their intended and ordinary use. These are especially common in the field o f drugs. An outstanding example is the vaccine for the Pasteur treatment o f rabies, which not uncom m only leads to very serious and damaging consequences when it is inject ed. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwith standing the unavoidable high degree o f risk which they involve. Such a product, properly prepared, and accompanied by proper di rections and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription o f a physician___ The seller of such products, again with the qualification that they are properly prepared and market ed. and proper warning is given, where the situation calls to r it. is not to be held to strict liability for unfortunate consequences attend ing their use, merely because he has under taken to supply the public with an apparently 252 742 FEDERAL SUPPLEMENT Id. W ith re s p e c t to th o se special p ro d u cts, a ry is th e p re s c rib in g physician); see also the o rdin ary , s tric t liability p rinciples o f W alker v. M erck & Co., Inc., 648 F.Supp. section 402A do n o t apply. Id. R ather, 931 (M .D.Ga.1986), a ffd without op., 83] "th e stan d ard of care required is th a t set F.2d 1069 (11th Cir.1987) (school nurse qua fo rth in 388 o f th e R e s ta te m e n t d ealin g lifies a s a le a rn e d in te rm e d ia ry ). The so- with the liability of a supplier of a chattel called "learned interm ediary rule" embod known to be dangerous fo r its intended ies the practical realities surrounding the use. U nder this section, the supplier has a dispensation o f prescription d rugs. In d u ty to exercise reasonable care to inform su ch in sta n c e s, th e choice o f w hich, if any, those fo r w h o se u se th e a rtic le is supplied p re scrip tio n p ro d u c t to u se is: o f the facts which m ake it likely to be d a n g e ro u s." 17 Id. 282 A .2d a t 219 n. 9 (em phasis added); see also B aldin o v. Castagna, 505 Pa. 239, 244, 478 A.2d 807, 810 essentially a m edical one involving an a ss e ss m e n t o f m edical risk s in th e light o f th e p h y sician 's k n o w le d g e o f his pa tie n t's n e ed s an d su sc e p tib ilitie s. F ur (1984). I f th e m a n u fa c tu re r can show th a t th e r it is difficult u n der such circum he has m et this standard of care, he cannot stances fo r the m anufacturer, by label or be held strictly liable fo r the injuries which his product causes. W ith respect to this direct com m unication, to reach the con sum er w ith a w arning. A w arning to the case, w here the M azurs do not identify any medical profession is in such cases the design or m anufacturing defect, the focus only effective m eans by which a warning m ust be on w hether MMR II was distribut could help the patient. ed with a proper w arning. Since the Ma zurs a sse rt th a t M erck is both strictly lia ble and liable fo r its negligence in failing to w arn them of the dangers of MMR II inoc ulation, a liability analysis under either the ory will depend on w h eth er M erck complied w ith the "duty to exercise reasonable care to inform " the M azurs of health risks asso ciated w ith MMR II u s e .178 D avis v. Wyeth Laboratories, 399 F.2d 121, 130 (9th Cir. 1968). See also Hoffman v. Ste rlin g D rug, In c., 485 F.2d 132 (3rd Cir. 1973) (Third C ircuit adopts the reason ing o f Incollingo and Davis to hold that m an u factu rer o f prescription d ru g need only w arn either the prescribing or treating physician.). Since Davis, the focus has been on the ex ten t o f the medical profes [10] In P en n sy lv an ia, as in m o st o th e r sio n al's in v o lv e m e n t in th e decision to ad states, the m anufacturer of prescription m inister the drug. The learned intermedi d ru g s o r vaccines, m u st m eet its inform a a ry ru le h a s b een found to apply in situa tional obligation, in m ost instances, by pro tions w here th e m edical professional exer viding an adequate w arning to a "learned cises his "individual m edical judgm ent bot in te rm e d ia ry ," Reyes v. Wyeth Laborato to m ed on a k n o w le d g e o f b o th p a tie n t and ries, 498 F.2d 1264, 1276 (5th Cir.), cert, palliative." Reyes, 498 F.2d a t 1276. denied, 419 U.S. 1096, 95 S.Ct. 687, 42 In m ost b u t not all of the vaccine cases, L.Ed.2d 688 (1974), ra th e r th an to th e gen th e learned in term ed iary ru le h as been ap e ra l public o r individual co n su m er. Incol- plied, since a p h y sician o r a physician's lingo, 282 A.2d a t 220 (learned interm edi- aide, such as a n u rse, adm inistered the 978 CHoo'; uscful and desirable product, attended with a known but apparently reasonable risk. 17. Section 383 of the Restatement (Second) of Torts provides in pertinent pan: One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows or has reason lo know that the chattel is or is likely lo be dangerous for the use for which it is supplied, and (b) has no reason lo believe that those for whose use the chattel is supplied will realize . its dangerous condition, and (c) fails lo exercise reasonable care to inform them of its dangerous condition or o f the facts which make it likely lo be dangerous. 18. Section 388 is ordinarily applicable to negli gence cases, as well as to strict liability cases involving prescription drug products. Incollin go, 282 A.2d at 219, n. 9. MAZUR v. MERCK & CO., INC. Clie a t 742 F.Supp. 23 (E.D.P. 1990) 253 vaccine.19 H ow ever, in Davis, th e N in th If th e m a ss im m u n izatio n exception applies, Circuit opined th a t in situations w here the then M erck m u st have exercised reasonable vaccine is not dispensed as a prescription care to see th a t th e M azurs, as opposed to drug and is "d isp en sed to all com ers a t a le a rn e d in te rm e d ia ry , w e re a d e q u a te ly mass immunization clinics w ithout an indi w arned. M erck chose to rely on th e CDC vidualized balancing by a physician of the to m eet th is obligation o r to en su re th a t the risks involved___ I t is th e resp o n sib ility le a rn e d in te rm e d ia ry ru le w ould apply. I t of the m anufacturer to see th at w arnings m u st be determ ined if M erck acted in ac reach the consumer, either by giving w arn cordance w ith its duty to exercise reason ing itself or by obligating the purchaser to able care to inform th e M azurs o f the g iv e w arning." 399 F.2d a t 131. All o f the h ealth risk s o f M M R II u se w hen it so vaccine cases recognize the theoretical va contracted w ith th e CDC. This determ ina lidity of the "m ass im m unization excep tion" to the learned interm ediary rule, b u t very few have found situations w here its application is w a rra n te d . See P etty v. tion will depend on w h e th er M erck foresaw or should have foreseen th a t its reliance on the CDC w as reasonable. United States, 740 F.2d 1428 (Sth Cir.1984) (swine flu vaccine adm inistered in a county 1. The L earn ed Interm ediary Issues health clinic as p a rt o f the N ational Swine [11] M erck contends th a t Dr. Sharrar, Flu Im m unization P ro g ram ); G ivens v. in his p osition a s d ire c to r o f th e H e alth Lederle Laboratories, 556 F.2d 1341 (5th D ep artm en t, acted as th e learn ed in term e Cir.1977) (polio vaccine ad m in istered by p ri diary , so w h en M erck a n d th e CDC provid vate physician who testified that the "ad ed w arnings to him, it fulfilled its duty to m inistration [of th e vaccine] in his office w arn th e m edical p ro fessio n al o f th e risk s `really d o esn 't d iffe r' fro m th a t o f th e P u b o f M MR II im m u nization. T his c o n tention lic H ealth C enter; 'n o t in th e a d m in istra is w ith o u t m e r i t D r. S h a rr a r , in fa c t, did tion a t all.' "); Davis (polio vaccine adm inis n o t p erfo rm th e n ecessary individualized tered by public health official, a pharm a balancing required o f a learned interm edi cist, in a com m unity clinic a s p a rt o f a a ry . T h e re is no d is p u te th a t D r. S h a rr a r nationwide im m unization program recom considered the package circular, th e recom mended by the Surgeon General of the m endation of th e CDC advisory committee, United States); Reyes (polio vaccine adm in and th e re su lts o f his ow n re sea rc h before istered by public health official, a reg he selected th e MMR II vaccine. M ore istered nurse, in a com m unity clinic a s p a rt over, th e re is no d isp u te th a t D r. S h a rra r o f a nationwide im munization program rec directed school n u rses to review th e medi ommended by the Surgeon G eneral of the cal records o f nearly 300,000 stu d en ts in VU'.Mnite.d S tates). The initial step in determ ining if M erck .m ust face liability fo r Mrs. M azur's claim th at she never received a w arning is to .decide w h eth er th e learned interm ediary the d istrict an d th a t 200,000 children did not receive the vaccines for a variety of reasons. I t is also undisputed, however, th a t he did n o t re v ie w L isa M az u r's m edical records, consider h er particular susceptibili :ru le o r th e m a ss im m unization exception ties in lig h t o f th e ris k s o f M M R II inocula 'applies. If the learned interm ediary rule tion, and w as n o t even p re sen t a t th e tim e .applies, M erck only need have w arned ade she w as im m unized. M erck does no t even quately the learned interm ediary and the su g g est th a t he had ever even seen Lisa UfVai.llure- to, w arn M rs. M azur is irrelev an t. M azur, le t alo n e ex am in ed h er, b e fo re Feb- See, e.g., Hurley v. Lederle Laboratories, 863 ,F.2d 1173 (5lh Cir.1989); Plum m er v. Lederle 'Laboratories, 819 F.2d 349 (2nd Cir.), cert, de' tied, 484 U.S. 898. 108 SCI. 232, 98 L.Ed.2d 191 (1987); Stanback v. Parke, Davis and Co., 657 6 F.2d 642 (4th Cir. 1981); Rohrbough v. Wyeth 1 Laboratories, Inc., 719 F.Supp. 470 tN.D.W.Va. 1989); Percival Am erican Cyanam id Co., 689 F.Supp. 1060 (W.D.Ok.1987); Foyle by McMillan v. Lederle Laboratories, 674 F.Supp. 530 (E.D.N. C.1987); Walker v. M erck Jt Co., Inc., 648 F.Supp. 931 (M.D.Ga.1986), a fi'd w ithout op., 831 F.2d 1069 ( l l l h Clr.1987); W illiams v. Led erle Laboratories, 591 F.Supp. 381 (S.D.Oh. 1984). 254 742 FEDERAL SUPPLEMENT ru a ry 26, 1982. D r. S h a rr a r n e v e r a c te d a s ditional fu n c tio n s o f th e le a rn e d interm edi Lisa M az u r's physician. Ip s h o rt, D r. S h ar- a ry an d if M erck provided h e r w ith an r a r 's fu n ctio n can be b e st d escrib ed a s p u r a d e q u a te w a rn in g , it m e t its b u rd e n under chasing agent for th e H ealth D epartm ent. Pennsylvania law. He determ ined w hat was best for the "av e ra g e " s tu d e n t in th e d is tric t a n d p u r chased enough MMR II to m eet the needs of 300,000 "av erag e" stu d en ts. H e did not make an individualized medical ju d g m en t about w hat was best for Lisa M azur. Dr. S h arrar did not act as a learned interm edi ary betw een Merck and Lisa. [12.13] This conclusion does not lay to rest the learned interm ediary issue. A l though M erck does not arg u e the point directly, I find th a t there is a genuine issue of m aterial fact as to w hether Ms. Edith B. Frederick, the school nurse, acted as a learned interm ediary when she perm itted L isa to receive th e MMR II v accin e.2" Ms. Frederick personally review ed the medical records of every student, including Lisa M azu r's reco rd s, a t th e M orrison School and determ ined w hat immunization, if any, w as needed. M a z u rs' e x h ib it 11 a t 19. She sent out with each child an Im p o rtan t Inform ation Statem ent and the School D is trict letter w ith the attached immunization record and the parental perm ission form , and upon return of the form s made a sec ond determ ination o f which vaccine w as n ecessary . M erck 's exhibit R a t 45. S h e w as p re s e n t in th e gym on th e d a y L isa received the MMR II inoculation. Ms. Frederick also states th at one of her jobs w as "to be kind of eyeballing the boys and g irls to see w h e th e r th ey looked ill th a t d a y or if there was some reason they should not g et the vaccine," and to ask if the The conclusion th a t under certain circum stances a nurse, as opposed to a physician, can a c t as a learned interm ediary has won som e ap p ro v al, a lth o u g h th e re is no P enn sy lv an ia case on point. In Walker v. M erck Co., In c., 648 F .Supp. 931 (M.D. G a.1986), a f fd without op., 831 F.2d 1069 (11th Cir.1987), a case involving the admin istration of the MMR II vaccine to a preg nant high school stu d en t as p art of a coun ty-wide high school immunization program , th e co u rt found th a t u n d er G eorgia law, the learned interm ediary exception applied to n u rses in g eneral, and, in p articu lar, to the n u rse who adm inistered the vaccine. A cco rd Rohrbough v. Wyeth Laboratories, 719 F.Supp. 470 (N.D.W .Va.1989). In Walker, th e plaintiff "received th e M -M R II injection from a licensed practical nurse who w as aw are of the risks associat ed with M -M -R II, particularly the risks for pregnant fem ales, and who stated th at she had read and understood the circular ac co m p an y in g th e M -M -R II." Walker, 648 F.Supp. a t 934. H ere, upon fu rth er exami n a tio n o f th e fa c ts, it m ay be th a t Ms. Frederick had a sim ilar knowledge of the ris k s o f M M R II inoculation a s described in th e p a c k a g e c irc u la r and L isa M az u r's p a r ticular "needs and susceptibilities," Davis, 399 F.2d a t 130, and she was able to make an individualized, inform ed medical judg m ent about w hether Lisa should receive the MMR II inoculation. children felt "all rig h t." Id. a t 49. U nfor I recognize th a t an arg u m en t can be tunately, th is'is all the inform ation th a t the m ade th a t since a Pennsylvania appellate p a rtie s have s u b m itte d a b o u t M s. F r e d e r c o u rt, M akripodis v. M errell-D ow P har ick. M issing a re a ffirm a tio n s o f fa c t, su ch m aceuticals, In c., 361 P a .S u p e r. 589, 523 a s h er fam iliarity w ith th e pack ag e circu lar A.2d 374 (1987), and a Philadelphia Com or CDC reco m m en d atio n s, h e r technical m on P le a s co u rt, C oyle v. Rich ardson- tra in in g , o r h e r m em ory o f L isa 's condition M errell, In c., 15 Phila. 389./1987 Phila.Cty. a t the time the vaccine w as adm inistered. R ptr. Lexis 80 (Phila.C t.C om .Pleas April T hese a re a s m ay be developed in g r e a te r 10, 1987), re fu s e d to e x te n d th e learned detail a t the time of trial. If so, a ju ry interm ediary rule to retail pharm acists, and could conclude th a t she perform ed the tra- th ere is no Pennsylvania case th a t address- 20. On the other hand, there is no question that Daniel S. Wood, the technician who adminis tered the MMR 11 inoculation to Lisa, was not a learned intermediary. Simply put, he is nol a medical professional and therefore cannot be a learned intermediary. 979 MAZUR v. MERCK & CO., INC. C h e a t 7 F.Supp.,239 (E.D.P. 1990) 255 es w hether a n u rse can act as a learned m ediary. T h erefo re, th e issu e o f whether intermediary, the learned interm ediary des Frederick falls w ithin the learned interm e ignation should be limited to physicians. A diary definition m u st be resolved a t trial, distinction can be draw n betw een a n u rse because if so an d if M erck provided h er and a pharm acist, how ever. The form er with an adequate w arning, M erck did not often perform s task s sim ilar to a physician, breach the d u ty to w arn. while the la tte r is m ore o f a technician o r a retailer of previously prescribed drugs. 2. The M ass Im m u n iza tio n Excep tion The nu rse is fa m ilia r w ith th e p a tie n t's A ssum ing arguendo th a t Ms. Frederick medical history and cu rre n t condition, is n o t found to be a learned interm ediary, w hereas the pharm acist is, in m any instanc th e M azurs still m u st prove th a t th e m ass es, unfamiliar with his custom er. The im m unization exception applies to trig g er nurse, as well a s the physician, is in a M erck 's d u ty to w arn them directly. They position to know the ch aracteristics o f the c an n o t do so, how ever. In Davis, th e drug, the am ount o f the d ru g which can be N in th C ircuit opined th a t in situ atio n s safely adm inistered, and m ost im portantly, w here the vaccine is not dispensed as a the individual characteristics of th e patient. prescription d ru g and is "dispensed to all Makripodis, 523 A.2d a t 378. T h e p h a rm a co m e rs a t m a ss im m unization clinics w ith cist only dispenses those d ru g s which the o u t an individualized balancing by a physi learned in term ed iary h a s a lre a d y decided cian o f th e ris k s in v o lv e d ___ I t is th e are necessary for the patient. The pharm a responsibility of the m anufacturer to see cist often does n o t e n g a g e in a n y decision th a t w a rn in g s re a c h th e co n sum er, e ith e r making of the kind ordinarily associated by giving w arning itself or by obligating with th at of doctors and nurses. the pu rch aser to give w arning." 399 F.2d > Moreover, this close association in fu n c tion betw een doctor and n u rse h a s been to some extent recognized by the Pennsylva nia legislature in 42 Pa.C.S.A. 8334(a). Section 8334(a) ex ten d s a lim ited g ra n t of immunity from liability to both ph ysicia n s and nurses for adverse reactions arising from the use o f vaccines adm inistered as p a rt o f a "m a ss im m unization p ro je c t." 21 This section certainly evidences a legisla tive view th a t physicians and n u rses often engage in sim ilar a ctiv ities w hen ad m in is a t 131 (em phasis added). The "m ass im m u nization exception" has not been applied o fte n , b e ca u se a s th e c o u rt in Stan back v. Parke, Davis Co., 657 F.2d 642, 647 (4th Cir.1981), stated , th e exception "is quite narrow and highly fact specific." I have found only fo u r such cases, th re e o f which dealt w ith nationally sponsored immuniza tion p ro g ra m s : P etty v. U n ited States, 740 F.2d 1428 (8th Cir.1984); Reyes; Davis; a n d G iven s v. Lederle Laboratories, 556 F.2d 1341, 1345 (5th Cir.1977). tering vaccines on a large-scale basis. I The m ass im m unization exception to the predict th at the Pennsylvania courts if learned interm ediary rule recognizes th a t presented with the question of w hether a there may be circum stances when by rea nurse can be a learned interm ediary would son o f th e very size of a program , a m anu recognize th a t doctors and n u rses perform fa c tu re r will know or should know th a t its similar roles when vaccinating patients and prod u ct will no t be dispensed as a prescrip would hold th a t in a p p ro p ria te circu m tion d ru g ; in s h o rt, th e m a n u fa c tu re r can stances a nurse can act as a learned inter- fo resee th a t th e re will be no individualized 21. There is no indication lhai the School Dis, Iricl immunization was a Pennsylvania Depart, mem of Health-approved "mass immunization , Project." Section 8334 provides in pertinent part: :: (a) General rule.--Any physician who does , not receive remuneration for his services in a mass immunization project approved in writ- l\ ing by the (Pennsylvania] Department of Health . . . . and any registered nurse, or prac* fical nurse licensed lo practice in this Commonweallh who shall participate in such project . . . shall not be liable, except for gross negligence, lo any person for illness, reaction, or adverse effect arising from or out o f the use o f any drug or vaccine in such project by such physician or such nurse. (b) Exception.--This section shall not exempt any drug manufacturer from any liability for any drug or vaccine used in such project. 256 7-12 FEDERAL SUPPLEMENT balancing of the medical benefits and risks. judgm ents w ere made: two ou t of three A s th e co u rt in Reyes stated : stu d en ts in th e Philadelphia school popula [w ]here there is no physician to m ake an tion w ere elim inated from the inoculation `individualized balancing . . . o f th e p ro g ra m . ris k s ', . . . th e very ju stificatio n fo r th e prescription drug exception [the learned interm ediary rule] evaporates. Thus, as in th e case o f p a te n t d ru g s sold o v er th e counter without prescription, the m anu facturer of a prescription drug who know s o r h as re a so n to know th a t it will not be dispensed as such a drug m ust provide the consum er with adequate in W hile Ms. Frederick w as no physician, she w as on hand w hen Lisa w as immunized to m a k e an individualized decision a s to each child. Even if she was inadequately trained, inadequately instructed and ulti m ately m ade the w rong decision as to Lisa, sh e w as th e school d is tric t's re sp o n se to th e obligation imposed on the CDC by its purchase con tract with M erck. T here has form ation so th at he can balance the been no suggestion as to any reason why risks and benefits of a given medication M erck could have o r should have foreseen him self. th a t the MMR II would not be dispensed as Reyes, 498 F.2d a t 1276 (quoting Davis, 399 a prescription drug. F.2d a t 131). In Reyes, th e c o u rt fo u n d th a t W yeth "had ample reason to foresee the w ay in which its vaccine would be dis tributed," because "it was common knowl edge in the d ru g industry th a t a g re a t m ajority o f vaccinees receive their Sabin [polio] vaccines in m ass ad m in istra tio n s o r county clinics m anned a t least in p a rt by volunteers . . . [and] . . . th ese clinics, as W yeth m ust be presum ed to know, dis pense Sabin vaccine to all com ers in an `a sse m b ly line' fash io n ." Id. a t 1277 (q u o t in g Davis, a t 131). This case is distin g u ish ed from Reyes, Davis, Givens, and P etty in th a t th e size of the im m unization program here is signifi cantly sm aller and does not by its sheer size create a situation w here the absence of a le a rn e d in te rm e d ia ry is fo rese ea b le . In all of those o th er cases, the inoculation was provided to the plaintiff as p a rt of a nation w ide im m u n izatio n e ffo rt. F o r exam ple, in Petty, the vaccine w as provided to the p la in tiff p u rs u a n t to th e N ational Swine Flu Im m unization P rogram , which as one m ight g u ess from its nam e, w as a national [14] H ere, the M azurs have not inoculation drive. The recipient poo) here p resen ted any fac ts which tend to show w as initially som e 300,000 stu d en ts in the th a t M erck should have foreseen th a t the Philadelphia school system . The Health M MR II vaccine w ould h ave been d isp en sed D e p a rtm e n t p ro g ra m , like th e p ro g ra m in in th e Philadelphia school pro g ram w ithout Walker, w as "in stitu te d only to immunize individual judgm ents as to each inoculation. certain . . . stu d en ts who needed the vac In its contract with M erck, CDC represent ed and agreed th a t it would "take all appro p riate steps to assure th a t all vaccine sup plied to various locations within the 50 states, . . . pursuant to the term s of this contract, shall be adm inistered on the basis o f an individualized medical judgm ent by a cine o r who did not have th eir updated shot re c o rd s ." 22 Walker, 648 F .S upp. a t 935. The H ealth D ep artm en t pro g ram is simply not, fo r th e lack of a suitable substitute term , "m a ss" enough to fall within the n a rro w , h ig h ly fa c t sp ecific exception to th e g e n e ra l ru le .23 p hysician . . . " Freilich a ff. a t 1117 and A s th e c o u rt in D a vis describ ed , th e polio exh ib its 3, 4, and 5. In fa c t, individualized im m u n izatio n p ro g ra m s w e re fo r "all-com- 22. I recognize that in all probability, the Walker immunization program was smaller than this one. I cannot imagine that Bibb County. Georgia, had nearly 100,000 high school students who received vaccines as was the case with the Health Department program. Nevertheless, the two programs are more similar to each other, than to the nationwide polio or swine flu immunization programs. 23. My decision here should not be interpreted that under no circumstances should the mass immunization exception apply to immunization programs of less than national proportion. The mass immunization exception, if it is to have any weight at all, must cover situations where the recipient pool is smaller than the whole nation. Contra Stanback, 657 F.2d at 647. What the size of that program should be, I will 980 Q-looW *tamVoi jMAZUR V. MERCK & CO., INC. Clic as 742 F.Supp. 239 (E.D.Pa. 1990) 257 ers " ^ does nI seem th at there w ere any lenge to the adequacy of the w arnings con provisions by which p o ten tial recip ien ts ta in e d in th e MMR II p a c k a g e c irc u la r th a t could choose n o t to be im m unized o r by sh o u ld h a v e b een provided to M s. F red erick w w? :Ji>v m !&, which po tential recip ien ts w ere re je c te d fo r some particular reason. It w as as if the vaccines w ere dispensed as over th e coun ter drugs with no m eans of lim iting distri bution to a particular individual. H ere, the Health D epartm ent program allowed p ar ents to exclude th eir children from th e p ro gram for religious or medical reasons. See M azurs' exhibit 10. P a re n ts , if th e y could have proved prior immunizations o r previ ous illnesses, could have prevented their children from being vaccinated. Id. A s a last resort, parents also could have kept their children ou t of school for a period of time as a m eans of avoiding an unw anted immunization, as did M rs. M azur. F u rth er, school nurses excluded stu d en ts by virtue of their p ast imm unization or illness records, id, o r by m ak in g a ju d g m e n t th a t certain students on the day o f inoculation did no t a p p ea r h ealth y e n o u g h to receive the vaccine. M erck's e x h ib it R a t 49. A p parently, the screening process w as highly effective because nearly tw o-thirds of the eligible students did not receive an MMR II inoculation. In this situation, it can n o t be said th at the MMR II inoculation w as pro becomes significant. They have subm itted a ffid av its from tw o doctors in su p p o rt o f their allegations th a t the package circular did not reflect accurately th e d an g ers asso ciated with the MMR II vaccine. Specifi cally, the doctors aver th a t the package circular substantially increased the risk th a t Lisa M azur would receive an unneces sary m easles vaccine because it: (1) re fe rs to doses distributed rath er than doses actu ally used, thereby creating the perception th a t the incidence ra te s o f SSPE and m ea sles are low er than the actual rates fo r the tw o d is e a s e s ;24 (2) d o es n o t include s tro n g er language w arning interm ediaries of the d an g ers w hen th e MMR II vaccine is given to children m edicated with Depo-M edrol, a co rtico stero id ; (3) fa ils to explain th e d a n g e rs a sso c iated w ith rev accin atio n ; (4) states th a t MMR II is indicated fo r adult use based upon inadequate testing for ad v erse reactions by M erck; and (5) "dem on stra te s th a t M erck is aw are o f the possible causal relationship betw een m easles vac cine and SSPE b u t has no t properly in volved itse lf in basic scientific research be vided to " all-com ers" ; ra th e r, it w as d is fo re it could s a y th a t a cau se -a n d -e ffe c t pensed on an individual basis as needed. relationship has no t been determ ined; and B ecause th e re is no evidence to s u g g e s t th e re b y d e em p h asiz es th e ris k s involved in th a t Merck foresaw th a t no learned inter- receiving a m easles a n tig en in o rd er to mediary would be p resen t a t inoculation, encourage physicians to im m unize as m any g the Health D epartm ent program w as not children as possible." A ffidavits of J. A n large enough to be considered a m ass im thony M orris, Ph.D ., and K evin C. Ger- munization program , and the vaccine was aghty, M .D., respectively, M azurs' exhibits not dispensed to "all-com ers," th e m ass 50 and 25. immunization exception does no t apply. Ju.`: [1 5 ,1 6 ] A s a n initial m a tte r, it sh o u ld d. \ Adequacy o f the Package C irc u la r be n o ted th a t by receiv in g FD A ap p ro v a l o f In the event Ms. Frederick is found to be its package circular, M erck has a t least a learned interm ediary, the M azurs' chal- as.ji-H W- p leave for others lo decide. Here, I merely conelude that a program of 100,000 recipients is not . V ' within the ambit of the exception, because its ''-1 . size does not create a situation where the abgfit' ^ nce o f a learned intermediary is foreseeable to ) the vaccine manufacturer. ' 24. The section of the April, 1981, MMR II pack' age circular SSPH warning of which the doctors ^ *, complain reads as follows: complied with a m inimum stan d ard o f ade- Based on estimated nationwide measles vacci nation distribution, the association o f SSPE cases to measles vaccination is about one case per million vaccine doses distributed. This is far less than the association with natural mea sles, 5-JO cases of SSPE per m illion cases of measles. i#l ifI if 258 742 FEDERAL SUPPLEMENT quacy. See Graham v. Wyeth Laborato is in a d e q u ate b e c a u s e it fa ils to d ire c t phy. ries, 666 F .Supp. 14S3, 1499 (D.K an.1987). sician s to fo reg o inoculation w ith MMR II Thus, it becomes incum bent-upon the Ma altogether w here a child has previously re z u rs to id en tify p a rtic u la r p ro b lem s w ith ceived a m easles vaccine, an d it fails to the package circular. O f course, the Ma recom m end th a t children who have already zurs m ust also p resent factual support for received one o r tw o o f th e th ree viruses th e ir claim s o f inadequacy. Once this contained in MMR II be inoculated with threshold burden is m et, in o rdinary cir individual vaccines to com plete th e trio in c um stan ces, th e a d eq u a c y o f th e w a rn in g is s te a d o f w ith M M R II. a question of fact for the jury, Incollingo, 444 Pa. a t 288-89, 282 A.2d a t 220; how ever, it is not im proper fo r the co u rt to determ ine th a t a w arning is adequate as a m atter o f law. H ere, I find th a t except for the revaccination complaint, which creates a genuine issue of m aterial fact for trial, the M erck package circular is otherw ise adequate as a m atter o f law. M erck does not address th e revaccination issu e in its b rie fs. I can o nly assum e, therefore, th a t M erck concedes the exist ence of a genuine issue of m aterial fact as to the adequacy of the revaccination warn in g in th e p ack ag e circu lar. T he M azurs have introduced evidence, u n re fu te d by M erck, fro m w hich a re a so n a b le ju ry could conclude th a t M erck acted unreaso n ab ly by [17] A s it appeared in th e April, 1981, failing to specify th a t th e re are potential MMR II p ackage circular, th e revaccination risk s associated w ith inoculation w ith MMR section provided: II when a child has been inoculated previ Revaccination: Based on available evi dence, th ere is no reason to routinely revaccinate children originally vaccinated w hen 12 m o n th s o f a g e o r older; how ever, children vaccinated when younger than 12 m onths o f age should be revacci nated. The decision to revaccinate should be based on evaluation of each individual case. ously with MMR II, o r has been inoculated w ith som e o th er form o f eith er a measles, mumps, or rubella vaccine. Alternatively, a reasonable ju ry could find th a t the cau tionary language a t th e end o f the revacci nation statem en t calling fo r "an evaluation o f each individual c a s e " is a d e q u a te to w arn the medical p rofession ab o u t the risks, if any, o f MMR II revaccination be This statem ent provides no inform ation about the potential risks associated with revaccination. The M azurs have presented evidence th a t revaccination poses a health risk beyond th a t which is covered in the c irc u la r's g e n e ra l S S P E w a rn in g s. G eraghty aff., M azurs' exhibit 50. The revac cination statem en t discusses only the need fo r revaccination from an immunization standpoint w ithout m entioning th a t revacci nation w here it is not w arran ted could, indeed, be harm ful. Additionally, M erck fails to distinguish the risk, if any, th at m ay be p resen t w here a child who has been inoculated in th e p a s t w ith a m easles vac cine, b u t not with one for m um ps, subse quently receives the MMR II vaccine. This w as the case w ith Lisa. She apparently cause su fficient inform ation exists from other medical sources which re fu tes any relationship betw een revaccination and SSPE. See Recom m endation of Imm uniza tion Practices A dvisory C om m ittee, Mor bidity and M ortality Weekly, vol. 31, no. 17, 219-20, 221 (M ay 7, 1982) ("T here is no evidence o f enhanced risk from receiving th e m easles vaccine in p ersons w ho have previously received live m easles vaccine or had measles. Specifically, there does not a p p e a r to b e an y en h an ced risk o f S S P E ."). A t best, the issues concerning the exist ence, if any, o f a relationship between MMR II revaccination and an enhanced risk o f S S P E an d th e a d e q u a c y o f M erck's w arn in g s in this re g a rd in its p ack ag e cir cular should be le ft fo r th e ju ry to decide. received a m easles and a G erm an measles [18] D r. G e ra g h ty 's a c c u sa tio n that vaccine a t the ag e o f four, b u t never re M erck did no t en g ag e in sufficien t research ceived a s e p a ra te m um ps vaccine. T he M a b e fo re it indicated M M R II fo r a d u lt use is zurs argue th at the revaccination w arning unavailing. I do not see the relevance of 1,q o ) - 0 J 8 6 MAZUR v. MERCK & CO.. INC. Cite as 742 F.Supp. 239 (E.D.P. 1990) 259 ? .p ; U complaint to the facts of this case. On m onth before the vaccine w as adm inis February 26, 1982, Lisa M azur w as only ' y'slf:? j^-elve y e a rs old. She w as not an ad u lt. I J f & M i fail to u n d erstan d how th e in a d e q u ate test0f ad u lts, even if th e te rm is defined as .^ - p o s t- p u b e s c e n t individuals as Dr. G eraghty i would have it, placed Lisa M azur a t risk. tered. A reasonably p rudent medical pro fessional will u n d e rstan d th a t w hen th e package circular contraindicates corticos teroids in g eneral, D epo-M edrol, a specific corticosteroid, is also contraindicated. [21] The M azurs' claim th a t M erck did . , The M azurs do not claim th a t Lisa was not en g ag e in su fficien t research b efore it eVen beginning p u b e rty a t th a t tim e. Dr. could m ak e th e s ta te m e n t t h a t a cause-and- Geraghty does not explain why the failure effect relationship betw een SSPE and " f f e ' to test the MMR II vaccine on adults put MMR II has not been determ ined is also &[?;' Lisa a t risk. E ven if he is c o rre c t,25 w ithout an explanation o f how th a t fact would affect Lisa, I cannot conclude th a t the Ma g s ^ zurs have raised a relevant and m aterial l l p l i issue of fact as to th e adequacy of the TfSif.i..MMR II package circular. gv,- [19,20] The M az u rs' re m a in in g complaints about the package circular are also without m erit. T he f ir s t is c o rre c t in prin- ''Ssii dple, b u t w ro n g in fa c t. T he CDC re p o rt S pfv on which M erck relied w hen it d rafted the 3$?! SSPE and encephalitis w arnings was based !yv on the results o f a study th a t took into /account the discrepancy betw een doses * used and d o ses d is trib u te d in calcu latin g the risk percentages. Morbidity and Mor- J i tality Weekly Report, 359-60, 365 (Novem- fruitless. F irst, as can be seen below, Merck does not m ake a statem en t th at there is no causal relationship betw een MMR II and SSPE. R ather, its package c irc u la r lay s o u t th e re s u lts o f th e C D C 's com prehensive exam ination of the relation sh ip o f m easles vaccines an d S S P E .27 Sec ond, and m ost im portant, is th a t a fte r over tw enty years o f study, M erck, as well as the independent researchers, have not been able either to establish or to discount a causal link betw een SSPE and m easles vac cines. See, e.g., A ffid a v it o f C h risto p h e r M. M artin , M .D., II 5, a tta c h e d a s M erck 's ex h ib it I. M erck 's and th e CD C 's re s e a rc h efforts on the causal connection betw een the MMR II vaccine and SSPE adequately su p p o rt th e statem e n ts in th e package cir her 19, 1976). A s fo r th e com plaint th a t c u la r w ith o u t d eem p h asiz in g th e v e ry real, H jU S D epo-M edrol should be c o n tra in d ic ated in b u t e x tre m e ly sm all ris k o f c o n tra c tin g the package circular, I find th a t the warn- SSPE a fte r inoculation w ith an MMR II 3' ing th a t p a tie n ts on c o rtico stero id s should not be vaccinated is su ffic ie n t.26 M erck Sgeannot be expected to identify the corn s ' bitted e ffe c ts o f an MMR II vaccine an d J). A dequ acy o f the Im portant Information Statement | every single m edication th a t a child m ight Because the M azurs claim th a t they nev ^ oe taking or, in th is case, w as ta k in g o v er a e r receiv ed a d ire c t w a rn in g o f M MR I I 's 23. Current research seemingly disagrees with ,.Pr-. Geraghty. Merck referred me to a 1989 r . 'V, ` report by the CDC advisory committee in which ,'iNr- the committee recommended that in outbreak ,:"y' '' situations junior and senior high school and -, coll'Kc students be revaccinated. Merck's ex^ |t .'h ib ii 4, attached to its reply. itf.24.,' The April, 1981, MMR II package circular ^..contraindicates MMR II for use with "[p]alienls .y'hrS^tying therapy with . . . corticosteroids___" gTM,27,1'The SSPE warning in the April, 1981, MMR BSj, II package circular is based on the findings of `^7"^ the CDC as reported in Morbidity a n d M ortality },' IVcet/y Report, 359-60 and 365 (November 19, ^yf`1976)' and reads as follows: Hy . ' There have been reports of subacute scleros' Ing panencephalitis (SSPE) in children who : did not have a history of natural measles but did receive measles vaccine. Some o f these cases may have resulted from unrecognized measles in the first year o f life or possibly from the measles vaccination. Based on esti mated nationwide measles vaccination distri bution, the association of SSPE cases to mea sles vaccination is about one case per million vaccine doses distributed. This is far less than the association with natural measles, 5-10 cases of SSPE per million cases of mea sles. The results o f a retrospective case-con trolled study conducted by the Center for Dis ease Control suggest that the overall effect of measles vaccine has been to protect against SSPE by preventing m easles with its inherent risk of SSPE. i.k 26v 7-12 FEDERAL SUPPLEMENT dangers, rath er than th at they received a w arning but found it inadequate in some p a rtic u la r w ay, see, e .g .,L e ib o m tz v. Ortho Pharmaceutical Corp., 224 Pa.Super. 418, 307 A.2d 449 (1973), th e adequacy o f the Im portant Inform ation Statem ent, as op posed to the adequacy of the package circu lar, see supra a t 257, is not an issue with which I need be concerned. H ow ever the Im portant Inform ation Statem ent was worded it had no affect on M rs. M azur, I will only focus on th e consequences, if th e re a re a n y , o f M rs. M a z u r's fa ilu re to receive it. cian w ould be p re s e n t a t inoculation or an Im p o rta n t In fo rm a tio n S ta te m e n t would be s e n t to p a re n ts b e fo re inoculation. If the CDC p e rfo rm s its o b ligations, M erck f u|. fills its duty to w arn u n d er the learned interm ediary rule, assum ing an adequate p a ck a g e circ u la r is m ade a vailable to the learned interm ediary, o r u n d er the mass im m unization exception, because th e recipi en t receives an ad equate w arning direct ly.28 T he m ore d iffic u lt q u estio n , which is in issue here, is w h a t the legal conse q u en ces o f th e C D C 's fa ilu re to live up to the demands of the contract are. 5. The M e r c k -C D C Purchase C on tract [22-24] The M erck-CDC purchase con tra c t provides in p e rtin e n t p a rt th a t the: [CDC], re p re sen ts and a g re es th a t it will (1) ta k e all a p p ro p ria te s te p s to a s s u re th at all vaccine supplied to various loca tions w ithin the 50 states, . . . p u rsu an t to the term s of this contract, shall be adm inistered to each patient on the basis o f an individualized medical jud g m en t by a physician, o r (2) ta k e all ap p ro p riate steps to provide to such a p atien t (or to th e p a tie n t's p a re n t o r g u a rd ia n ) m ean ingful w arnings relating to the risks and benefits o f vaccination, in form and lan guage understandable to such patient, parent or guardian. Freilich a ff. a t II17 an d ex h ib its 3, 4, and 5. In short, through this contract Merck at tem pted to g u aran tee th a t either a physi [25,26] As I have previously pointed out, the standard o f care imposed upon a m an u factu rer of prescription d ru g s is that set forth in section 388 o f the Restatem ent. See infra a t 252. C om m ent n o f section 388 d eals w ith a m a n u fa c tu re r's d uty to exercise reasonable care to inform those w ho will u se a p ro d u c t o f its d a n g e rs. The com m ent points o u t th a t th ere are certain facto rs th a t will aid in a determ ination of w hether the m anufacturer has acted rea sonably or not including th e n a tu re of the p ro d u ct, th e c h a ra c te r o f th e person to whom it is supplied, and the w ay the prod uct will be ultim ately used. T he care that m ust be taken alw ays increases as risk of danger increases. H ere th e parties have not addressed w hether M erck acted reason ab ly o r n o t w hen it c o n tra c te d w ith CDC to have MMR II adm inistered only on the 28. 1 recognize that in Pennsylvania "the duty to provide a nondefeclive product is non-delegable," Berkebile v. Brandy Helicopter Corp., 462 Pa. 83, 337 A.2d 893. 903 (1975) (per Chief Justice Jones, with one Judge concurring and five Judges concurring in the result), and a product sold with an inadequate warning may be considered defective. At first glance, it may seem that I am permitting Merck to delegate responsibility in a manner which contravenes Berkebile. However, this is not the case for two reasons. First, there is a difference between delegating responsibility to a third party and assigning a task to that third party. By obligat ing the CDC to provide either a learned interme diary or an Important Information Statement for the benefit of the vaccine recipient, Merck is merely assigning to the CDC the task of ensur ing a particular method of distribution of its product. At all limes, Merck is responsible for the CDC's foreseeable errors. This situation is not much different than that for any other pre- scription drug product. With regard to those products, the manufacturer designates them for distribution by prescription only. The manu facturer leaves it to the physician to properly prescribe the product for his patients. If the pharmacist dispenses the product without a pre scription or if he dispenses it to someone who clearly should not receive it, he, not the manu facturer, is liable for his misconduct. Only if the manufacturer could foresee that the phar macist would act in such a manner would the manufacturer be held responsible for any inju ries that the product causes. Second, as I will discuss more fully above, section 388, the perti nent section when a prescription drug product is administered, permits, in certain circum stances, the manufacturer to escape liability by placing the obligation to warn the consumer on a third party. See comment n to section 388. Whether this is reasonable also depends to a great extent on foreseeability. Id. 982 q -io^ MAZl'R v. MERCK & CO., INC. C h e a t 7 F.Supp. 239 (E.D.P*. 1990) 261 asis of an individualized ju d g m e n t m ade C D C 's failu re. W ith o ut so m e th in g m ore ijjy a physician, or only a fte r a m eaningful than their self-serving allegation th a t they warning had been given to th e p atien t or n ever received a w arning, I will no t invade f the parent, i f M erck acted reasonably, it the province o f the ju ry and ru le as a ij-jhay be absolved o f liability d e sp ite th e fa c t ''t lia t Lisa's p a re n ts received no notice o f ' MMR II's d a n g ers. Ultim ately', th e re a so n ableness of M erck's co nduct m ay be a ju ry m atter of law th a t M erck acted unreason ably in rely in g on th e CDC and should be held accountable fo r th e M azurs' failure to receive a warning. question or may be susceptible to a disposi In sum m ary, I extend the learned inter tion by sum m ary judgm ent. In any event, m ediary ru le to cover situ atio n s w here the *I1will give the p a rtie s additional tim e to n u rs e a c ts a s a le a rn e d in te rm e d ia ry , b u t I braig to my attention anything th a t they leave for th e ju ry the question o f w hether, ' believe is re le v a n t w ith re g a rd to M erck 's in fact, Ms. F red e ric k performed the tra d i reliance on th e c o n tra c t w ith CD C.2" tional duties o f a learned interm ediary on >?riie M azurs argue th a t I should decide as '^ m a t t e r o f law th a t th e CDC did n o t } perform its assigned tasks and M erck knew 1Of should have know n it w ould n o t do so. ; They assert, therefore, th at M erck did not exercise reasonable care to inform them of ' the risks of MMR II inoculation and m ust <Sybtedh:e.ld l.iable fo r th is failu re to w arn. "i, (271 The M azu rs co n ten d th a t th e fa c t, the day Lisa received her vaccine. I also leave fo r the ju ry the question o f w hether the package circular th at should have been provided to Ms. Frederick adequately con veyed the risks associated with receiving a second dose of m easles virus from the MMR II vaccine. M erck's c o n tention th a t Dr. S h arrar acted as a learned interm edi ary is rejected. F u rth er, I find th e m ass immunization exception should not apply to assum ing its tru th , th a t Mrs* M az u r n e v er th e 1981-82 H e a lth D e p a rtm e n t im m uniza received the Im p o rtan t Inform ation S ta te tion program . H ow ever, I conclude th a t on ment from the CDC show s th a t M erck did th e sta te o f th e record before me today, ' not act reasonably in relying on th e CDC to M erck h as n o t show n th a t it acted in ac provide a w arning to her. They a re w rong. cordance with due care, if it had a duty to The. relevant issue is not w h eth er M rs. w arn th e M azurs directly ra th e r than a Mazur actually received the Im portant In duty to w arn Ms. Frederick, w hen it con formation Statem ent, b u t w hether M erck tracted with the CDC to provide recipients ached u n reaso n ab ly b e ca u se it did n o t fo refsee th at she would not receive it. The M azurs have not presented one single piece of a MMR II vaccine with the benefit o f a p h y sician 's p re sen c e a t im m unization o r a detailed w arning o f th e risks o f inoculation. Of evidence, o th e r th a n M rs. M az u r's claim that she never saw a CDC w arning, th at tends to prove th a t th e CDC w as not pro- C. C au satio n I. Proximate Causation viding w arnings to p aren ts with any d eg ree [2 8 -3 0 ] P ro o f o f p ro x im ate c a u sa tio n is of frequency and th at Merck knew of the one of two necessary causation elem ents, . 29. The court in Walker found that as a matter of liable . . . if he fails to exercise reasonable care jt law Merck fulfilled its duly to warn when it to inform those for whose use the article is ^entered into a contract identical to the one in supplied of the facts which make it likely to be J issue here. Walker, 648 F.Supp. at 935. The dangerous") It may be that a vaccine manufac Walker court relied on a proposition put forth turer "by obligating the purchaser to give a 'Vby the court in Reyes and Davis. In those cases, warning" acted with reasonable care because tith e court held that a manufacturer of a vaccine there, was no indication that the purchaser A.oould satisfy the duty to warn "by obligating the would not perform its assigned tasks. How purchaser to give a warning." Reyes, 498 F.2d ever, if obligating the purchaser to give a warn |aM276; Davis, 399 F.2d at 131. I disagree with ing were unreasonable if, for example, it was Vibi5. statement, because it ignores the important readily apparent that the purchaser was unable issue of whether the manufacturer was exercis to fulfill its obligation because it had no money i n g reasonable care in accordance with section to do so or the purchaser expressed an intention ,. 388 when he obligated the purchaser to provide either orally or by past acts that it did not Ihe consumer with a warning. Saldino, 505 Pa. intend to perform its obligations, then the man- at 244, 478 A.2d at 807 ("a manufacturer is ufacturer cannot avoid liability by contract. 262 742 FEDERAL SUPPLEMENT the o th er is cause-in-fact, in a to rt case M erck is absolved o f liability. The record proceeding under theories o f strict liability does n o t reveal, how ever, w hat, if any and neg lig en ce. Sherk a. D aisy-H eddon , th in g , F re d e ric k w ould h ave done if she 498 Pa. 594, 598, 450 A.2d 615, 617 (1982). had read an a d eq u ate w arning. Contra A p ro x im ate cau se is d efin ed a s a s u b s ta n P lu m m e r v. Lederle Laboratories, 819 tial c o n trib u tin g fa c to r in b rin g in g a b o u t F.2d 349 (2d Cir. 1987); Stan back v. Parke, th e h a rm in q u estio n . Van B u s k irk v. D avis an d Com pany, 657 F .2d 642 (4th Carey Canadian Mines, Ltd., 760 F.2d Cir. 1981) (d efen d an t vaccine m an u factu rer 481, 492 (3d Cir.1985). In sh o rt, th e p ro x i is ab so lv ed o f liability if p la in tiff's tre a tin g m ate causation determ ination is nothing physician testified in deposition th a t be was m ore than the assignm ent of legal respon aw are of th e risk of illness associated with sibility fo r a p a rtic u la r injury. In th e d u ty a flu vaccine, b u t n o n e th e le ss chose n o t to to w arn context, assum ing th a t plaintiffs advise his patients ab o u t th a t risk before have established both d uty and a failure to prescribing the vaccine.). I t m ay be that w arn, plaintiffs m ust fu rth er establish Ms. Frederick would have heeded an ade proxim ate cau satio n by sh o w in g th a t had q u a te w a rn in g . I will p e rm it th e p a rtie s to defendant issued a proper w arning to the supplem ent the record to flesh o u t w hether learned interm ediary, he would have al a change in th e revaccination warning tered his behavior and the injury would would have caused M s. Frederick to ex have b een avoided.30 Van B u skirk, 760 clude L isa fro m th e im m unization program . F.2d a t 493. D efendant m ay "d efeat cau Since it h a s n o t attem p ted , a t th is time, sation in a failu re to w arn case by discred to d iscredit p la in tiffs' a ssertio n th a t an ade iting p la in tiffs' claim s th a t . . . [the learned q u a te w a rn in g w ould have been heeded by in term ed iary ] . . . w ould h av e a cted to M s. F re d e ric k , M erck's a s s e rte d proxim ate avoid injury, o r by pointing to a third p a rty 1 cause defense depends on its claim th a t the as the sole proxim ate cause." Id. a t 493. legal responsibility fo r L isa's illness should In this case, M erck does not raise a signifi lie w ith D r. S h a rrar. It contends th a t it cant objection to the plaintiffs' assertion cannot be liable fo r L isa's illness, because th a t Ms. Frederick would have heeded an D r. S h a rrar relied n o t only on th e package adequate w arning, if one had been provid circular, b u t also on a CDC recommenda ed. Instead, M erck arg u es th a t even if it tion and his own independent research and failed to provide an adequate w arning to medical ju dgm ent before he selected MMR Ms. F red erick , D r. S h a rr a r's relian ce on II fo r th e School D is tric t's im m unization non-M erck so u rc es o f in fo rm atio n a b o u t p ro g ra m . S h a r r a r a ff. HU 7 an d 9. See MMR II is th e tru e p ro x im ate c au se o f Sch ra m m el v. G .D . Se a rle & C o., 1988 WL L isa 's illness. 118850, 1988 U.S. D ist. Lexis 12465 [31] I f Ms. F rederick is found to have (E .D .Pa. N ovem ber 4, 1988), a f fd without acted as a learned interm ediary, the im por op., 875 F.2d 311 (3d Cir.1989) (D rug com ta n t issue is w hether she would have done pany is im m une from liability if prescribing anything d ifferen t on F eb ru ary 26, 1982, doctor had adequate inform ation from oth a fte r reading an adequate package circular. er sources.) M erck m aintains th a t the fact If she would not have changed her conduct th a t Dr. S h a rrar relied on these other and would have let Lisa receive th e vaccine sources break s th e proverbial causa) chain a n y w ay , th e c au sa l chain is b ro k en , an d an d ab so lv es it o f a n y liability.31 30. As I noted above, see supra at 259, because the Mazurs claim that they never received a warning, rather than that they received an inad* equate warning, the Important Information Statement will be considered as adequate. Therefore, the proximate cause question relates only to the alleged inadequacy in the package circular. Sharrar, the other School District employees, such as Ms. Frederick or Wood, or for that matter, Mrs. Mazur, negligently permitted Lisa to receive the MMR II vaccine when all indica tions suggested that she not receive it. Such a finding o f negligence, if it had been argued by Merck, might have supported a second interven ing cause contention. For example, if after 983 Q-wA 31. This is the only intervening cause argument that Merck offers; however, it may be that Dr. M AZUR v. M E R C K & C O ., IN C . Che as 742 F.Supp. 239 (E D.Pa. 19901 263 .'|3 2 l This arg u m en t is unavailing for plexity, proof o f causation m ust be esta b ^ ' purposes o f s u m m a ry ju d g m e n t T h ere lished by e x p e r t te stim o n y . H a m il v. can be more th an one proxim ate cause of Bashline, 481 Pa. 256, 392 A.2d 1280, 1285 an injury--and w h e th e r any in ad eq u acy in (1978). T h e M az u rs o ff e r th e te stim o n y of sfe the package circular was a su b stan tial tw o specialists in the fields o f pediatrics, ijfjf ctor in c au sin g h a rm to Lisa, o r w h e th e r virology, a n d im m u n o lo g y to e sta b lish th e ir 3 / w|,at Dr. S h a rra r did o r failed to do cau sed claim th a t M M R II c au se d L isa 's injuries. | j , that harm , or both, is a ju ry question. E ssentially, M erck raises three challenges ! As I discussed in g re a te r detail above, S it g infra a t 260, it is an open q u estio n a t this point w h eth er M erck acted in accord ai? ance with due care when it contracted with the CDC to have the CDC provide a learned intermediary a t inoculation or provide a K* recipient or his p aren ts with an adequate s. wumarmningp,. This d ete rm in a tio n dep en d s on *"'* w hether M erck fo resa w th a t th e CDC g jj would perform its task s. In a sense, it is a gjjjt proxim ate c au se issu e. I f M erck re a so n s ' ably believed th a t the CDC would perform p j- its assigned tasks, and it happens th a t the I f CDC did not do so, it m ay be th a t the It; CDC's negligence is a s u p erse d in g c au se o f Lisa's injuries, because it is its m isconduct jgs., which m ay be a s u b sta n tia l fa c to r in bring- to th e M azurs' causation evidence. The firs t challenge is in th e form o f a m otion to exclude the M azurs' proffered experts be cause they lack the qualifications necessary to m eet the threshold adm issibility stan dards o f Federal R ules of Evidence 702. Second, M erck contends th at Federal Rule of Evidence 703 bars the testim ony of the two experts, if they are such, because such testim ony is im providently based upon evi dence th a t is n o t reasonably relied upon by ex p erts in th e ir respective fields. Third, M erck a rg u es th at even if adm issible, the M azurs' proffered e x p ert opinion testim ony does not dem onstrate the existence of a genuine issue of m ateria) fact as to causa tion. ing about the illness. F or exam ple, if the [34] K evin C. G eraghty, M.D., is a phy i CDC planned to m eet its obligation by pro- sician certified in pediatrics and allerg y and fjf: viding a physician a t inoculation, b u t told im m unology, and J . A nthony M orris, Ph.D ., ,the, d octor to g o to th e w ro n g school, a s is a sp e c ia list in b a cterio lo g y and virology. sum ing the presence o f the doctor would have prev en ted L isa 's im m unization, it '/could be said th a t th is n eg lig en ce proxiijm te iy caused L isa 's illness. I will allow Both m en opine th a t the MMR II vaccine caused Lisa M azur to contract SSPE. A ffi davits o f J . A nthony M orris, Ph.D., and K evin C. G eraghty, M .D., respectively, M a S ? the parties the opportunity to explore fur- zu rs' exhibits 50 and 25. M erck arg u es ther this foreseeability issue. th a t n eith er m an is qualified to give such jpJ-Stp':---. 2. Cause-in-fact an opinion. I t correctly points o u t th at neither perform ed any studies of his own vg;;^T33] In o rd e r to m ain tain d u ty to w arn a s to th e e ffe c ts o f a m e a sle s vaccine in fif' claims against Merck, th e M azu rs m u s t h u m a n s, h a d a n y s ig n ific a n t k n o w le d g e of p j; establish th a t MMR II cau sed L isa 's inju S S P E o r e x p erie n ce in tre a tin g children ries." Because the subject m atter of this w ith SSPE before they w ere contacted by iftse is of a high d eg ree of scientific com- the M azu rs' a tto rn e y s, and had ev er exam- t/'rea'ding an adequate package circular, Ms. Fredterick knew that Lisa should not have been inot^Jtuiaied for whatever reason, but, nevertheless, j : . negligently allowed her to receive the shot, a f , . reasonable jury could have concluded that Ms. Frederick's negligence was the substantial factor It !?.bringing about Lisa's iJJness. Of paramount importance to this determination would have f n' ns it so often Is, the element of foresee- (-'ability, The intervening negligence would only absolve Merck of liability if it was unforesee- able to Merck at the time it sold the MMR II fcyVacclne to the CDC for use in the Health Depart- ment immunization program. See Neal v. Carey Canadian Mines, Lid., 548 F.Supp. 357 (E.D.Pa. 1982); a fl'd Van Bush irk i\ Carey Canadian Mines. Ltd., 760 F.2d 481 (3d Cir.1985). 32. Although I address the causation question within the context o f the Mazurs' duty to warn claims, that question goes to the hean o f every claim the Mazurs raise. If the Mazurs cannot prove that MMR II was the cause o f Lisa's injuries, ail of their other claim s will also fall. CO CO rf* OI O o 264 742 FEDERAL SUPPLEMENT ined Lisa before they concluded th a t her illness was caused by the MMR II inocula tion. M oreover, it legitim ately questions D r. G e ra g h ty 's ex p erien ce in th e field s o f virology, neurology, and epidemiology. M erck 's ex h ib it G a t 83-84. N o n e th e le ss, both doctors are fully qualified as experts in th eir chosen fields. T he lim ited clinical and practical experience both men have had with m easles vaccines and SSPE goes to the w eight to be afforded their testim ony, not its adm issibility. The short term , but intense study of SSPE w hen combined with a specialized understanding of the health hazard s associated w ith im m unization is sufficient to qualify them "by knowledge, skill, experience, training, o r education" as experts in accordance w ith Federal Rules of Evidence 702. Federal Rule of Evidence 703 provides that: The facts o r d a ta in the p articu lar case upon which an e x p ert bases an opinion or inference m ay be those perceived by or made known to the expert a t or before the hearing. If o f a type reasonably relied upon by e x p erts in th e p artic u la r field in form ing opinions o r inferences upon the subject, the facts or data need not be adm issible in evidence. In In re Japanese Electronics Products Antitrust Litigation, 723 F.2d 238, 275279 (3d Cir.1983), r e v 'd on other grounds, 475 U.S. 574,106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), th e Third Circuit adopted a liberal approach to d eterm in in g w h a t evidence is reasonably relied upon by ex p erts in a p a r ticular field. In th a t case, the Third Circuit fu rth er opined th a t once the trial court finds th a t the d ata relied upon is o f the kind upon which ex p erts in th e field reason ably rely, the trial court should not sepa rately determ ine the trustw orthiness of the data. [35,36] The prim ary focus of a Rule 703 determ ination is on the soundness of th e e x p e r t's m e th o d o lo g y w hich lead s him to a certain conclusion, ra th e r than on the conclusion itself. Wells v. Ortho Pharm a ceutical, 788 F.2d 741 (11th Cir.), cert, de nied, 479 U.S. 950, 107 S.C t. 437, 93 L.Ed.2d 386 (1986); Ferebee v. Chevron Chem ical C o., 736 F.2d 1529,1535-36 (D.C. Cir.), cert, denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984). M erck argues th a t n eith er ex p ert's testim ony is admissi ble because n eith er conducted his own clini cal or experim ental studies of MMR II and SSPE, n either exam ined Lisa, and both base their opinions solely upon a sh o rt term review of the relevant medical literature. H ow ever, th e re is m ore th a n one w ay to reach an ad m issible e x p e rt opinion. Clini cal or epidemiological studies, w hether per form ed by the proffered expert or by other ex p erts in th e field, a re n o t an "indispens able elem ent in the p resentation o f a prima facie d ru g product liability case" and are not "the sole [perm issible] basis fo r expert opinion." L a n z ilo tti v. M errell Dow Phar m aceuticals In c., N o. 82-0183 slip op. a t 3, 1986 W L 7832 (E .D .Pa. J u ly 10, 1986). A re a so n a b le e x p ert, in th e ab se n c e o f his own study, could tu rn to th e medical litera tu re in th e relev an t field a s th e basis for reaching an opinion. M oreover, in the event th a t a personal exam ination of the p atien t is n o t possible, reasonable reliance could be placed upon the rep o rts o f those doctors who did exam ine h er. T h at is w hat both experts did in this situation. Thus, the requirem ents of R ule 703 have been satisfied. The final and m ost persuasive challenge to th e M azurs' causation evidence is th at even if both doctors a re ex p erts and both followed accepted p ractices in reaching th eir opinions, these opinions are unsup ported by the studies on which they rely. S tated in legal term s, M erck contends that th eir opinions do not create a genuine issue of m aterial fact. Based upon their review of the relevant medical literature, their general under standing of th e specialized fields of virolo gy and imm unology, and th eir review of L isa 's m edical re c o rd s, it is th e opinion of both doctors w ith a reasonable degree of medical certainty th a t L isa contracted SSPE as a re su lt of th e MMR II inocula tion. M az u rs' ex h ib its 25 (G e ra g h ty ), 50 and supplem ental affidavit (Morris). The opinions are unequivocal. M AZU R V. M ER C K & C O .. IN C. 265 W%r- Clic . 742 K.Supp. 239 (ED .Pa. 1990) >v'; The medical lite ra tu re on which th ey missible into evidence, a court, none f i v '' rely, how ever, does not su p p o rt th e ir con- theless, m ust inquire into the reliability iS&Ss-: c]us'jon. A typical s ta te m e n t o f cau satio n w that the plaintiffs' experts rely on appears an d fo u n d a tio n o f th e e x p e rt's opinion, thereby assu rin g its helpfulness to the n an article by P a u l R. D yken, M .D., w h ere ju ry . See In d ian Coffee Corp. v. P roc D r.. Dyken states that: ter & Gamble Co., 752 F.2d 891, 894-95 t I [t]he e ffe c t o f m easles im m unization is :j still n o t u n d e rsto o d , b u t th e re a re now (3d Cir.1985). Thus, th e fa c t th a t a p arty has produced an ex p ert to su p p o rt its s some suggestions th a t immunization add- position does not preclude sum m ary ed to natural infection may create some judgm ent. A court may enter summary .1 additional w o rse n in g o f th e S S P E b u t not judgm ent against a party who relies on , an e arlie r o n set. W hen im m unization is an e x p e r t's opinion w hich is u n s u b sta n ti .. added to th e e ffe c t o f n a tu ra l m easles, this may induce the neurologic sym ptom s ated and based on unsupported assump tions. . and possibly exacerbate them . The pos. sibility th a t im m unization alone produces SSPE exists, b u t th e re is no direct su p portive evidence. Dyken, Subacute Sclerosing Panencephal itis, N eu ro lo g y Clinics, Vo) 3., N o. 1, i 83-- 84 (1985). Like th e D y k en a rticle, no n e o f the other articles include any findings th at SSPE is caused by m easles vaccines, b u t only th a t th e re is a p o ssib le c a u sa l re la tio n ship. See, e.g., M odlin, el at., E p id em io logical Studies o f Measles, Measles Vaccine, and Su b a cu te Sclerosin g Panencephalitis, P e d ia tric s, Vol. 59, N o. 4, 509, 511 (1977) ("T h is s tu d y n e ith e r p ro v e s n o r d is proves an etiologic relationship betw een live, a tte n u a te d m e a sle s vaccine and S S P E ___ L ikew ise, no virologic evidence exists to either prove or disprove an associ ation betw een m easles vaccine viruses and S S P E ........ A lth o u g h f a r from conclusive, the data h ere p re sen te d s u g g e s t th a t live, attenuated m easles vaccine virus m ay be capable o f contributing to the pathogenesis o f S S PE ." ). In d e te rm in in g w h e th e r an e x p e rt's opin ion is su ffic ie n t to w ith s ta n d a su m m a ry judgm ent motion, a court m ust under Felgen h au er v. Texaco, 1987 W L 26592, 1987 U.S. D ist. Lexis 11258 (E .D .Pa. De c em b er 1, 1987) (D itter, J.). [37] H ere, plaintiffs' doctors are basing their opinions th a t to a reasonable degree o f m edical c e rta in ty MMR II c au se d L isa 's illness on medical studies th a t only state th ere is a possible link betw een m easles vaccine and SSPE. The possibility th at th ere is a cause and e ffect relationship b etw een th e tw o is n o t en o u g h . A s it is ex p lain ed in H reha v. Benscoter, 381 Pa. Super. 556, 554 A.2d 525, 527 (1989) (quot in g K ra v in sk y v. Glover, 263 P a .S u p e r. 8, 396 A .2d 1349 (1979)): [wjhen a party m ust prove causation through expert testim ony the expert m ust testify w ith "reasonable certainty" th a t "in his 'professional opinion, th e r e su lt in question did come from th e cause alleged.' " . . . An expert fails this stan d a rd o f c e rta in ty if h e te stifie s " `th a t th e alleged cause "possibly", or "could have" led to the result, th a t it "could very properly account" for the result, or even th at it was "very highly probable" th at it caused the result.' take a detailed inquiry into the adm issi bility of the p roffered testim ony. See, "The issue is not m erely one o f sem an e.g., In re A gen t Orange Product Liab il- tics. T here is a logical reason fo r the ity Litigation, 611 F.Supp. 1223, 1242 ru le . T he opinion o f a[n] . . . e x p e rt is ^ (E.D.N.Y.1985), a ffd on other grounds, evidence. If the fa c t finder chooses to ,,.818 F.2d 187 (2d Cir.1987). U nder Fed.R . believe it, he can find as fa c t w hat the ... ' Evid. 703, a n e x p e r t is e n title d to re ly on ex pert gave as an opinion. F or a fact - - the research of others and to testify finder to aw ard dam ages for a particular therefrom . W hile th e research and data condition to a p laintiff it m u st find as a upon which an ex p ert relies and bases his fact th at the condition w as legally caused conclusions need n o t th e m selv e s b e ad by th e d e fe n d a n t's c o n d u c t___ [I ]t is 985 O1 o' 26 742 FEDERAL SUPPLEMENT the inter. our law th a t if the plain tif f 's . . . e x p e rt c an n o t fo rm an opinion with sufficient certainty so as to m ake a [professional] judgm ent, th ere is nothing on the record w ith which a (factfinder] can make a decision with sufficient cer tainty so as to m ake a legal judgm ent." (citations omitted) Although plaintiffs' experts expressed th eir opinions in th e ap p ro p riate legal lan guage, their doing so was not justified by their own experience, experim ents, o r clini cal studies. N or did the studies of others, on which they could and did rely, support the conclusions they expressed. This does not end the m atter, however. N either Dr. G eraghty nor Dr. M orris said he relied upon The Merck M anual, 2041 (Merck Sharp & Dohme R esearch L abora to ries, 15th ed. 1987). P e rh a p s th e y sh o u ld have exam ined it, for there the epidemiolo gy of SSPE is stated thus: "A n altered measles virus, acquired naturally or by vaccination, is th e probable cause." Id. (emphasis added). W hile D rs. G eraghty and M orris w ere no t ju stified in reach in g their conclusion on the basis of w hat they did consider, w hat they did n o t consider could be h elp fu l to th e m .33 V. CONCLUSION In sum m ary, I conclude th a t th ere is no federal preem ption of Pennsylvania to rt claims arising out of a vaccine-related inju ry , th a t reso lu tio n o f M erck 's s ta tu te o f lim itations defense is a ju ry question, and, finally, I find th a t a decision on M erck 's motion for partial sum m ary ju d g m en t on the failure to w arn claims m ust be reserved until fu rth er discovery is finalized and ap propriate supplem ents are subm itted to me as specified in th e o rd er w hich follows. ing opinion, it is hereby ordered th a t defen d a n t's m otion fo r p a rtia l su m m a ry ju d g e m ent and to exclude plaintiffs' expert testi m ony is denied in p a rt. S u m m ary ju d g m en t is denied as to th e federal preem ption and the statu te of lim itations issues. Judg m ent is entered in favor of plaintiffs and ag ain st defendant on the issue of federal preem ption. I reserve ju d g m e n t on the m otion to exclude plaintiffs' ex p ert testim o ny and for partial sum m ary ju dgm ent con cerning p lain tiffs' duty to w arn claims. The p arties shall have sixty days from the d ate this o rd er is filed to en g ag e in fu rth er discovery and to supplem ent their respec tiv e filings, if n e ce ssa ry , on th e d u ty to w arn claims. G erald KOBELL, R egional D irector for Region Six o f the N ational L ab o r Rela tions B oard fo r and on B ehalf o f the NATIONAL LABOR RELATIONS BOARD, Plaintiff, v. AMALGAMATED COUNCIL O F GREY HOUND UNIONS, A FL -C IO , and A m algam ated T ran sit U nions, Local 1043, A FL -C IO , D efendants. Civ. A. No. 90-0986. United S tates D istrict Court, W .D. Pennsylvania. Ju n e 29, 1990. ORDER AND NOW, this 29th day o f Ju n e, 1990, for the reasons se t fo rth in the accom pany Regional D irector of N ational Labor R elations B oard so u g h t tem p o rary injunc- 33. The Merck M anual was not attached as one o f the sources either doctor relied upon to reach his opinion. Merck also did not disclose this document to me. This text seems to undermine the credibility of Merck's arguments on causa tion in its motion for partial summary judg ment. If Merck can include the "probable cause" statement in a published medical text, it is hard lo understand the enthusiasm with which it challenges the opinions of Drs. Ger aghty and Morris. Merck must have had a basis in fact for that statement. If so, Merck should have disclosed that information to the plaintiffs. I am sure it will do so now and the plaintiffs' doctors may wish to give this matter their re newed consideration. KOBELL v. AMALGAMATED COUNCIL OF GREYHOUND UNIONS 267 C lle a s 742 F.Supp. 266 (W.D.Pa. 1990) t l ... 10 enjoin unions fro m p ic k e tin g a t en s e n ta tiv e s , a g e n ts, s e rv a n ts , em ployees, a t trance of common site. The D istrict C ourt, torneys and all m em bers and persons act Lee, J-, held th a t D ire c to r w as n o t e n titled ing in c o n ce rt o r p a rtic ip a tio n w ith them be to the injunction. enjoined and restrained from picketing a t R equest denied. the entrance to the drivew ay leading to the P ost H ouse C afeteria and G ift Shop, locat Labor R elations =518 National Labor R elations Board Re gional D irector w as not entitled to tem po ed at Breezewood, Pennsylvania; and, th at th e y be enjoined an d re s tra in e d fro m , in any m anner o r by any m eans, including picketing, orders, directions, instructions, rary injunction halting alleged secondary boycott a t common site; picket line w as established a t only m eans of ingress and egress into shared facility, signs displayed req u ests or appeals, how ever given, made or im parted, o r by any like or related acts or conduct, or by perm itting any such to rem ain in ex isten ce o r e ffe c t, e n g a g in g in, by picketers m ade no m ention of entity th a t o r inducing o r encouraging any individual w as alleged ta r g e t o f sec o n d a ry b o y co tt, em ployed by a n y p e rso n e n g a g e d in com and th e re w as no evidence p re s e n te d th a t m erce o r in an in d u s try a ffe c tin g com would indicate "b a d " objective o f unions. m erce to e n g ag e in, a strik e o r a re fu sa l in National Labor R elations Act, 10(f), as the course of his em ploym ent to use, m anu amended, 29 U.S.C.A. 160(f). facture, process, transport, or otherwise handle or work on any goods, articles, m a Donald J. B urns, P ittsb u rg h , Pa., for plaintiff. Alan Belkin, Cleveland, Ohio, M artin B urns, C hicago, III., fo r d e fe n d a n ts. terials, o r commodities or to perform any services, or threatening, coercing or re straining G reyhound Food M anagem ent, Inc., an d an y o th e r p e rso n s e n g a g e d in com m erce o r in in d u stry affectin g com MEMORANDUM OPINION m erce, w h ere in e ith er case an object th e re of is to force or require G reyhound Food LEE, D istrict Judge. This action is b ro u g h t by G erald Kobell, Regional D irector for Region 6 of the N a tional L abor R elatio n s B o ard (" B o a rd " ), pursuant to 10(f) of the N ational Labor R elations A ct, as am en d ed , (" A c t" ), fo r a tem porary injunction pending final disposi tion of the m a tte rs pending before the Board on charges filed by Greyhound Lines, Inc., and G reyhound Food M anage ment, Inc., alleging th a t respondents en gag ed in an d a re e n g a g in g in u n fa ir la b o r practices w ithin th e m e a n in g o f 8(b)(4)(i) and (ii), S u b p a ra g ra p h (B) o f th e A c t w hich M anagem ent, Inc., and other persons to cease using, selling, handling, transporting o r otherw ise dealing in th e products of, or to cease doing business w ith Greyhound Lines, Inc. On Ju n e 8, 1990, upon the filing of a Com plaint and Petition for Injunction Un der Section 10(f) o f the N ational Labor R elations Act, as A m ended, this C ourt is sued an O rder directing respondents to ap pear before this C ourt on the 13th day of June, 1990, to show cause why an injunc tion should not be issued enjoining arid restraining respondents as set forth above. proscribes secondary boycotts and other A full and complete hearing w as held on secondary pressu re aim ed a t requiring an the C om plaint on Ju n e 13th, 1990, a t which employer to cease dealing in th e products tim e testim ony w as tak en and a stipulation of, or to cease doing business w ith any o f the p arties w as en tered into th e record. other employer. The Board has petitioned this C ourt re Findings o f Fact questing the respondents, A m algam ated (1) T h e p e titio n e r is G erald K obell, R e Council of G reyhound Local Unions, A F L - gional D irector for R egion 6 o f the N ation CIO, and A m algam ated T ran sit Union Lo al L abor R elations B oard, an agency o f the cal 1043, A FL -C IO , th e ir officers, repre- U nited S tates, who has filed this P etition 742 F Supp.--6  W :< Sf' - v o rre i. FEDERAL' REPORTER; 2d SERIES I,} ' - 525 Cir.9- 913F2d581=913F2d*58l 915F2d453I I - SFCF i !. 7.4 1 - 538 Cir."3- 115BRW7> - ` [14807 - Cir, 9738FS347- -55Q - Arir ; 1 794P2dl34': - )*"*S': ' *: --565 -- Cin 1 737FS3138 - 571 -- Cir. 10 904F2d553 905F2d26328 738FS9416 : 80,ffiF817n --6 0 -- Cir. 10 - Dk 10 89-5143 -60 9 Cir: 10 . Dk 10 88-2643 906F2d8502 f906F2d'1401 f906F2d61401 f908F2d'1478 --635 -- Cir. 7 737FS4957 -6 5 0 Cir. 7 131FRD2567 -6 5 6 Cir. 10 743FS1I448 --666 -- Cir. 3- 693FSI38 Cir. 9 741FS101433 741FS121436- Cir. Fed. f913F2d13928 act 15C1C2118 -688(222PQ2d97) -694(222PQ2d ' 187) act 21C1C22 * -6 9 9 (222PQ2d-; V ' ti ' 191) -, - "V - 708 -- S366ICC459? 482US274. 96LE230'.*? 107SC2363-" Cir. D.C. f Dk' DCtfe::' 88-1793 e914F2d280' 41CC2d52 J 4ICC2d435 ?. 6ICC2d876 6ICC2d900 - - 727 Cir. D.C. 736FS1152 ' 'r.. ' -7 5 2 5FCCR122 - \>V; -7 6 6 Cir. D.C. Dk DC 87-5305: 915F2d734 -7 7 3 Cir. 1 910F2d7987 910F2dl2987 9l0F2d14987 910F2d21989 910F2dl991 910F2d - V: [311000 Cir: 2 743FS19968 ' Cir. 6 c Dk 6 ; 89-6227 '. 915F2d17234 915F2d19234 9I5F2d19235 915F2d20235 Cir. 9 738FS346738FS7347'3 Cir. 11 Dk 11 89-7527 915F2d21657 -8 0 4 Cir: 1 Dk 1. . 90-1365 ' "'' i** -8 0 7 S88LE789- n -.ij -810- Mss 400Mas506 J -819j474US910 jl06SC280. --M ass-25MaA955:\ -8 2 2 q484US235 q98LB2297 ql08SC2369f 56USLW [4013 in. . 197r1A512; 1' - 831 --" 'Cir; 1;:` Dk 1 I':-' 90-1168 - ' 912F2d1523 737FSM257 81ARF720n- -8 3 5 Cir. 7 904F2d18 ; -8 4 0 Cir. 2 856F2d496 - 854 Cir. 1. 737FS1241 740FS1981 740FS4982 -8 5 9 Cir. 3 Dk 3 90-1090 912F2d667 - 873 Cir. 6 Dk 6 89-3546 - 879 Cir. 3- 738FS14839; 744FS41304 744FS61304 744FS31309 5FCCR1727 *::i- > - 891 -. Cir.- 3 -. 856F2d4542- - 896 Cir. 11 ; c740FS1836 NY 547NYS2d : ;ti-rj. [790 . -i si\ : -9 0 3 475US1S477 106SC1?1297 - Ciri 3 D fc S 89-3239 9l5F2d'3850 737FS13311 Cir. 8 Dk 8 d9l4F2d?,-*: ['1081 79ASF904n l .. --: 912 -- - Cff; 3 905F2d570l2 --9 2 0 -; -vrCir. V Dk 4 i e ' 89-2165 913F2d4173 '**- vpTV-*r -- -9 3 3 ~ Cir. 4V7: 856F2d6634 - 946 Cir. 4 Dk 4 ' . ". 89-3315 ' 906F2d10975 693FS9362 738FS10967 739FS1009 739FS1061 743FS9396 743FS423 745FS322-' III : 136I12d465 557NB880 NO 322NC335.' -9 6 3 ' NC. 371SE496.7 -9 7 6 Cir 4'' 741F.: S'7.M2' 21 ' --983 -- Cir. 4 nsgps^si 739FS5282 Calif 224CA3d382 -9 9 2 NOCA " 3.17 i -1 0 0 0 76iF684nj* i-i m. -1 0 2 2 93LB'3l3 I07SC1370 Cir. 6 f74lFS1674-' -1 0 2 8 'T'E^.vJv. 563So2d972 -1036Cir. 5 745FS1200 :. La : 530So2d676" -1 0 5 5 Sf Case T.ei ' Mass" : ' 25M955: -. Or.rDiv --1055"-- 'Cas' 2-7 si b: NY -^ 158NYAB: [921 550NYS2d ' `.'7''i [961 -1 0 8 4 Tex 795SW319.-: -1 0 9 8 La cc558So2d715 Cir: 5 - 736FS21446 -1 1 0 3 NY 76NY830 559NB1275 560NYS2d [116 75ASF485n 76iF709n -1 1 1 4 77iffiF212n -1 1 2 0 93T0159 -1 1 2 9 Cir. 3 738FS2859 Cir. 6 IMBRW'SSO Pa 391PaS513 -1 1 3 6 Cir. 6 f Dk 6 89-3279 f913F2d319 -- S''-'.'-I ** -1 1 6 0 Cir. 7- ' 91 lF2d51260 ' .. NY. 72NY245 532NYS2d75 - 1168 93TQ232 --Oi i -- -1 1 7 9 "7 Cir 8 ' . Dk 8 895485ND 914F2dl037 in'.-;'; 1..6.8rIIo3^146-127- Cir. 8 904F2dl213 739FS'1319 Ciri l i ' 738FS4657P 7- 1222 -- 74?. `Colb1-^'-" 797P2d789 ihiiP -1 2 3 2 - Colo .. 795P2dl334 - i 241 US ceri den inll0SC3223 -1 2 5 4 - Cir 8 f906F2d21217 74-.0F.S\6i67;8 y -1 2 6 9 (87ASF897) " NY 551NYS2d - P7. [177 -1 2 8 3 Cir. 9 Dk 9.' 87-3837913F2d747 .91: 4F2d515-6*9 -1 2 8 9 Cir. 7 909F2d1238 Cir. 10 Dk 10 89-2172 914F2d2203 NM-.-; 796P2d255 NY 553NYS2d >-' [261 553NYS2d ' [267 -1 2 9 5 jl08LB820 ' jl 10SC1556 ' Cir. 9 Dk 9 '* 89-70054 907F2*d-5TI90'7' - 1 2 9 9 --. US ceri den in474US830 inl06SC94 - Mass. 23MA986i Wash: 51WApl22 V' "i."f -1305- Cir y. 910F2d660 80ARF685n -1314- Cir 2 115BRW!440 Cir. '3i-; 90-3258 117BRW124 .'V Cir 907F2d'504 ' 907F2d505 i Cir 6 114BRW911 "i; Cir. 9 r 904F2d21401 Cir 11- 119BRW3276 119BRW3282 - i Pa" 580A2d24 -1341 Case 2 " Cir, 9 Dk 9 88-1734 f Dk 9 89-15683 7 909F2dl248 - \ K-1 3 4 8 - Calif 192CA3dl48 204CA3d38 99ASF804n -1 3 5 2 Cir. 4 905F2d4732 905F2d9732 905F2d11733 905F2d12733 Cir. 6 740FS111292 740FS121292 Cir. 9 856F2dl343908F2d'534 908F2d" 535 Calif 267CaR802 -1 3 5 8 Cir. 9 90`5F/2/d.l31'5' -1371 -"Cir; 9 - 915F2d9540r 80iF312n - H--XP- r - -1 3 9 7 78ARF52n ` '>-V>v --1416 -- (772KF531) UScertden inl07SC927 Cir. 10 131FRD1591 7-7r;ASF546n -1432488US1277' 102LB1631109SC598 C ir 4?;7 f905F2d1792 T l;A-0 i" f739FS17828 Cir 4 Dk' Yffm : 89-8386^ 9l5F2~d'fl4w 8>ARF81 . -etaatieM '"W 304.-y 309 rJ14*v 25-' -1 4 7 d ^ - ''Rf^lK 5752d98OT [fJ5263i^r t2541 C2547 - U 801I ' Case 78ARF82nW DkfDeG?.~-;: jfc?181 : 3F2dl4971 Vi-Mass 23MaA275 r-iTen790SW545 V * ,& - t --2 2 5 -- :t Ciri 7,: 114BRW599 -' 9 i Cir. 2 740FS267 : -238- 999111---55511CCCFFF42ii22a4rrdsdd*8..\94MU1011.7.9555I^W9222-7377g^#*.SS^Jo1CD2FFgdCCFSii-rSRir1i.K"1r1l.D9'91334213121?711-3-.J3-i1:2f- 743FS1l560:f 114BRW302> - v:t S6'.Cf.-7.V- B3FS746- --1508 ri! (222PQ2d'Sari -; 276)| SCir- 8 illF2d57r j&DC ' 5SflA2dl021 Cir. 2 745FS7990 90BRW74 NY . 548NYS2d ; . [165 -2 4 6 - Cir. 1 Dk 1 90-1455 904F2d785 Cir. 2 908F2d7l 104 743FS173 -1516- i (222PQ2d 369); Cir. 7 745FS5523' ; "6<vy _m 74Cir. D.C. DKDC "82-1243 5llF2d808 -261 Cir. 2 910F2d70 -263 - j483US558 '-1 5 2 9 ^ 1 5fCCR3001 j97LE462 jl07SC2993 742FS264"' Cir. 4^ f745FS193lT-tf Cir. 5 i 736FS741 ' ;, Cir. 10 ;< 741FS41478# 741FS101488 DC - p 578A2dlI23 i 578A2dll24'| !-.. NJirOSf 121NJ91:-!;.-' 121NJ107-t?f 242NJS53 p; 242NJS68' :; 576A2dl3 ' 576A2d20 ? '. 577A2dl250"577A2dl258 I 559N: NYYS2d?v:j [790j - : Pa - i'X 389PaS340i :| 2ExER7-:l% - TT11.04 ^ - <- ~ ;$ -1559-^ Cir. D.C?'f 910F2d969.;Si, j910F2d972 M I 84-- cir D.C. --283 -- 806F2d781 a476US747 JllF2d5767 a90LB779 al06SC2169 S130- S473US931 Cir. r . S474US809 Dk 1 S106SC25 1326 S106SC45 jlllLE431 134- jl 10SC2987 ;Cir 1 ' 58USLW.' 156F2ds322 [4987 SE. -. Cir: 3 1 45 - 744FS1326 Cir. 8 f744FS101328 !56F2d3l 133 744FS121328 ` rr6.05 744FS231328 ill-: 744FS251328 I1 5 5 - : 744FS61375 .. Cir. 2 - 744FSa1375 740FS1028 744FS221377 744FS111379 172'-': 744FS151381 ir. 2 Conn Dk 2 40CS437 90-704i-;-i fei:i:T'0P - 3 3 9 - .J&187- - CirY3 JMLB74L- 743FS1200 H07SC1513. 114BRW68 Cir..2i-^ 114BRW968 ?07F2d?336O Cir. 7 T9FSl4827 JS?FS*828 T 908F2dl36 Vr ". - .. 15C1C3196 89-53431 Dk 3 i '1 ---t -i 264 IP -lo ts- FEDERAL REPO RTER, 2d SERIES -- 1 1 6 0 -- -- 1 2 0 7 -- -- 1 2 6 8 -- -- 1 3 1 0 -- AABA 5.17 866F2d4372 -- 1 4 6 7 -- -- 1 5 2 1 -- Cir. 7 Iowa Cir. 9 Ariz GICL 12.16 866F2d5372 Cir. 11 Cir. 5 88IF2d5515 CC432NW144 903F2d1269 162Azl 18 894F2d1529 728FS1297 881F2d65 16 Cir. 10 781P2d596 -- 1 3 2 9 -- -- 1 3 7 1 -- 77641S NY 900F2dU438 -- 1 2 6 9 -- 88F98n Cir. 9 Cir. 7 -- 1529--i 72NT245 900F2d21442 (871F897) 890F2d41452 87lF 2d14l340 -- 1 4 7 4 -- Cir. DC 532NYS2d75 696FS1558 Cir. 1 -- 1 3 1 4 -- 892F2dl450 Cir. 9 Cir. DC d857F2ds826 715FS1008 728FS4856 Cir. 2 127FRD13177 f893F2d'366 897F2d5l 162 -- 1168-- Cir. 11 Cir. 5 93BRWM5 -- 1 3 3 2 -- Cir. 11 717FS1914 Cir. 2 Cir. 4 706FS31499 d876F2d3500 Cir. 3 Alk f902F2d13900 Cir. 5 d 7 l2 F S l5 864F2dll31 Cir. 5 Tex 764SW834 Cir. 9 94B R W 358 776P2dl033 f902F2d14900 d871F2d51252 ^ f859F2d4621 94BRW 3361 f9 0 2 F 2 d 159 0 l Cir. 9 e702FS1953Z) 702FS71297 AA 11.58 871F2d31468 11IBRW 3527 -- 1 3 4 1 -- 80 F312n 900F2d1190 T704FSI58T Cir. 7 883F2d3694 112BRW742 Case 2 2li F12s Cir. 10 Cir. 4 884F2d1282 -- 1 2 1 8 -- f896F2d31224 Cir. 4 Cir. 6 900F2d4221 709FS17668 903F2d521 Cir. 8 696FS524 97BRW 839 710FSU143 -- 1 3 9 2 -- Cir. 11 Cir. 5 92TCt27 701FS4727 712FS760 10 5 B R W 3318 Cir. 9 Cir. 3 j874F2d 1394 874F2d3I0 89 F112n ECA NY fl05B R W 13l8 870F2d515 f903F2d8277 888F2d'762 874F2ds3I I 894F2d11581 75N Y 130 105BRW5319 728FS603 Cir. 9 902F2d367 -- 1 1 7 4 -- 894F2d41581 550N E430 Cir. 5 846F2d91205 -- 1 4 8 0 -- 706FS5368 Cir. IO 87iffiF911n 93B R W 477 -- 1 3 4 8 -- 861F2d9202 Case 1 Cir. 6 897F2d1l555 -- 1 2 2 2 -- 102BRW529 Cir. 2 866F 2d l182 78 F82n 732FS5749 Cir. 8 -- 1 2 8 9 -- fl02B R W 3530 873F2d4637 880F2d9l 129 Cir. 7 -- 1 1 7 7 -- 894F2ds295 Cir. DC fl02B R W 5532 Cir. 9 Cir. 10 -- 1 4 8 0 -- j847F2d365 NY 21iffiF655s 878F2d2476 fl 02BRW 6532 d861F2d21401 898F2d1449 Case 2 f702FS16197 V 151NYA0 Cir. 9 104BRW795 Cir. 10 Cir. 1 1 f702FS17197 [343 -- 1 2 3 2 -- j858F2dl424 Cir. 6 887F2d61379 -- 1 3 9 7 -- d881F2d51557 702FS19198 543NYS2d67 Cir. 8 j869F2dl212 108BRW4584 Calif Cir. 10 881F2d"1559 f702FS15l99 V 13PcL52 j8 7 1F2d731 Cir. 10 Cir. 9 192CA3dl48 881F2d877 897F2d6l 121 Cir. 8 14PcL185 d884F2d2371 70IF S 1527 875F2d784 206CA3d49 62166S 708FSS1283 716FS1287 AgD 16.04 TP 4.27 e712FS1869 95BR W ' I58 208CA3d 78lF52n 7 1 6 F S 161288 DEEC 3.02 714FS1149 101BRW3615 [1453 -- 1489-- Cir. 11 -- 1241 -- NY 101BRW616 210CA3d277 -- 1 4 1 6 -- Ala 875F2d19825 v -- 1 1 7 9 -- cc885F2d456 155N Y A 082 103BRW1220 214CA3d (77 F531) 541So2d77 717FS2805 ^ Cir. 7 Cir. 8 155N Y A 091 103BRW2220 [1587 US cert den 717FS19806 y/ 891F2d644 898F2dl366 fl03B R W 3221 253CaR377 in479US1054 -- 1 4 9 5 -- Ala 891F2d8647 -- 1 2 9 5 -- fl03B R W 5221 257CaR29 Cir. 3 Cir. 10 554So2d943 f891F2d"647 -- 1 2 4 6 -- Cir. 3 113BRW 2 258CaR440 696FS94 716FS566 Ariz f8 9 lF 2 d 13647 Cir. 8 872F2ds l 176 113BRW22 263CaR410 Cir. 10 157Az583 Cir. 9 f872F2d41369 Cir. 9 1 1 3 B R W 52 D C f ^ l F R D 'S? -- 1 4 9 9 -- DC 735FS1477 896F2d3334 f858F2d8579 d l 13BRW82 570A2d289 37 1306s Cir. 4 548A2d802 III 896F2d2335 891F2d1232 Cir. 10 Vt 77i4RF546n 872F2d4l 179 Idaho 168I1A146 93 1097s fl00B R W 356 150Vt609 5ARF518S 728FSM08 11 Sida 1095 Mo 87lF430n -- 1 2 9 9 -- fl00B R W 456 556A2d58 Cir. 5 772P2d733 778SW 269 21SF655S US cert den fl 00BRW 556 19 1034s -- 1 4 2 1 -- 878F2d5850 Mass in474US830 102BRW803 Cir. 10 Cir. 7 407Mas317 -- 1 1 9 5 -- -- 1 2 5 4 -- inl06SC94 102BRW8804 -- 1 3 5 2 -- n 3 0 F s n o 8 i 697FS41486 553NE898 Cir. 7 Cir. 8 Cir. 1 Cir. 11 Cir. 2 Cir. 11 Minn 97BRWM28 706FS716 866F2d15I4 105BRW ' 120 862F2d417 -- 1 4 3 2 -- 861F2d1237 437NW 660 7 308s Cir. 9 866F2d2514 110B R W 610 Cir. 6 57USLW 880F2d41293 Pa 878F 2d l125 866F2d3514 Mich 9 2 B R W 2771 [4076 716FS7629 567A2d318 -- 1 1 9 9 -- 11PST119 Cir. 9 179McA169 Cir. 9 Cir. 4 726FSU 576 1ExER290 Cir. 5 [64 878F2d1287 445N W 810 856F2dl343 713FS862 735FSS1042 19COA345 2 898F2d994 55,480n Mass Mont 872F2d12913 95 F608n 97BRW104 FDA 26.05" Wyo 23MaA986 218Mt504 879F2d8477 19 F709s PL 7.13 780P2d963 -- 1 2 6 0 -- Wash NM 886F2d121089 -- 1 4 4 2 -- PLPD 4.22 Cir. 8 51 W A pl22 784P2d426 696FS91355 10PST433 -- 1 5 0 8 -- TT 11.04 -- 1 2 0 2 -- 902F2d1622 ' PP 12.03 6 9 7 F S 101142 [63 (222PQ276) Cir. 8 902F2d2622 -- 1 3 0 5 -- 697FS121144 59.1149n Cir. Fed. -- 1 5 4 3 -- e860F2d853 902F2d1l3 5 l Cir. DC -- 1 3 1 7 -- 704FS17987 887F2dl068 Cir. DC 8 7 2 F 2 d ' 826 7 0 5 F S S10 Cir. 9 707FS17450 -- 1 4 4 9 -- 97 F737n 863F2d11956 Md -- 1 2 6 4 -- 705FS610 891F2d31384 733FS1375 Cir. 11 RLPB 5.11 3l6M d620 Cir. 8 730FSS445 1 0 7 B R W 3264 Calif 110B R W 87 -- 1 5 1 6 -- 48j4SF45s 316Md635 870F2ds 1388 730FS6445 Cir. Fed. 218CA3d 7,308s (222PQ369) 81MdA437 870F2d71388 Cir. 2 866F2d4429 [1351 Cir. 3 561A 2dl87 j870F 2dl389 f724FS5l 105 EL 17.45 -- 1 4 6 2 -- 718FS5287 Vol. 737 561A2dl95 880F2dl001 Cir. 5 -- 1 3 2 0 -- 12695s Cir. DC 718FSS295 568A2d843 f880F2d71002 719FS535 Cir. 8 f714FS439 Cir. 6 -- 1 ___ 52,901n f885F2d460 Cir. 9 874F2d35I4 -- 1 3 6 7 -- Cir. 7 700FS6378 477US304 12544S 891F2d7664 702FS3824 Cir. DC 695FS'936 700FS7378 e477US309 715FS4930 Cir. 11 -- 1 3 2 6 -- 700FS55 81 F819n Cir. 9 477US314 7 15FSS9 3 1 702FS31573 Cir. 7 700FS556 f707FS2l 561 91L 0257 715FS931 80F685n 877F2d1578 Cir. 9 Cir. Fed. e91LE263 7 1 5 F S 7933 Cir. 9 860F2d354 857F2dl417 106SC2541 ET 9.05 872F2d2284 f894F2d322 882F 2d' 1564 707 FS2 1167 Cir. 11 Continued -- el06SC2547 - Cir. DC cc? 1 865F2d34363 866F2dl484 70- I866F2d17 e7C [1491 f866F2d18 [1491 s91 f866F2d19 [1491 90 866F2d24 1493 94 i866F2dl505 95. 890F2d12l l 7 l 98: 895F2d1280l 99 i895F2d805 99. f696FS12704 99 718FS4894 10 723FS834 10 f727FS3638 10' Cir. 1 10, 898F2d229 10f Cir. 2 10' f886F2d21359 10' f886F2ds l 359 io: e700FS181290 1 0 . 700FS171291 io : 719FS19209 io: f724FS1l 100 3F' Cir. 3 3F( 697FS863 3F 697FS870 4F' 725FS5249 4F Cir. 4 4F 886F2d724 4F 721F S1S7 5 1 4 F 724FS2384 4F' Cir. 5 858F2d33l 145 - f716FS3S263 < 716FS43266 700 Cir. 6 704 703FS12667 d73. 717FS1234 122FRD26 709 Cir. 7 3 FC 693FS746 FIE 712FS31342 TP Cir. 8 862F2d703 -- 889F2d12l7 0 ( 900F2dl245 705 Cir. 9 866F2d21126 899 7 0 4 F S 12998 711FS1530 156 711FS121532 14P Cir. 11 TP 880F2d310 98 A 7 0 7 F S 3513 27 718FSM542 -- Conn 209Ct506 92B 551A2dl247 Iowa 8991 445NW 354 Mich 705'! 43lM ch572 431NW 815 8931 DRE 1.08 4IC< 62.298S 5IC< 90265S 5IC- 30 987, p-(c>(3 532 702 FEDERAL SUPPLEMENT Board of Education v. Loudermill, 470 plicitly m ade by th e B oard. In addition U .S. 532 a t 546, 105 S.C t. 1487 a t 1495, 84 b e ca u se th e in te rp re ta tio n o f R ule 1.01 is a' L .E d.2d 494 (1985). P la in tiff w as given m a tte r of s ta te law , and b ecau se I have just th a t a lre a d y concluded th a t rem oval in the in. P la in tiff, ho w ev er, o b je c ts to th e B o a rd 's s ta n t c ase does n o t v iolate M r. M urray's re fu s a l to p e rm it h is w ife to te s tify a f te r c o n stitu tio n a l rig h ts, no o th e r issues re they heard his own testim ony and th a t of main before this court. Consequently, I J u d g e G lancey. A lth o u g h th e ju d g e s de will n o t only deny P la in tiffs Motion for cided b y s e c re t b allo t, th e re a so n f o r th e ir J u d g m e n t on th e P le a d in g s, b u t I will a]so decision c an be g le a n e d fro m J u d g e M erri- e n te r ju d g m e n t in fa v o r o f D efe n d an t pur- w e a th e r's co m m en ts: s u a n t to Fed.R .C iv.P. 12(c). A lthough De [W ]e h a v e one q u e stio n , t h a t w a s ask e d fe n d a n ts h av e n o t m oved fo r Ju d g m en t on th a t is basically g erm ane to th e issue th e Pleadings, such an order is appropriate before this Board, th a t w as asked by Judge M argiotti and answ ered by your client, num ber one, th a t he knew th a t he could no t hold th e office and rem ain o r becom e a bail commissioner. N um ber sin ce I h av e d eterm in ed th a t " th e re is no m aterial issue o f fact p resen ted and that one p arty is clearly entitled to judgm ent" Flora v. Home Federal Sav. and Loan Ass'n, 685 F.2d 209 a t 211 (7th Cir.1982). two, th a t he acknow ledges th a t Judge glancey told Both M r. M urray and his ORDER i w ife th a t it w as a no n o ___ W e c a n 't A N D NOW , this 14th day of December, h elp i t if h e c a n 't co n tro l M rs. B rid g e t. 1988, ju d g m e n t h a v in g b e en e n te re d in fa Tr. 71-71. T he B oard a p p aren tly believed v o r o f D efen d an t in th e above-captioned mth a t M rs. M u rra y 's te stim o n y w a s irre le m a tte r, th e p re lim in a ry injunction in effect vant since th e inception o f this action by agree H owever, even if the judges refused to perm it her testim ony "on the theory th a t m en t of th e p arties is hereby VACATED. The execution of this o rd er shall be stayed m h e r testim ony w as e ith e r n o t credible, or fo r th irty days pending filing o f a notice of w ould m e re ly b e re p e titiv e o f P la in tif f's ap p eal. testim ony, because she is his wife," Plain t if f s M otion fo r Ju d g m en t on th e P lead ings a t 25, P lain tiff still would have re |IYM)SBIIISYSUH> H i ' > 2;I1 ceived the process due under the C onstitu tion. " `[S jo m e th in g le s s ' th a n a fu ll evi dentiary hearing is sufficient prior to ad v e rse ad m in istra tiv e actio n ." Cleveland Board of Education, 470 U .S. a t 545, 105 M ichael J. KOLBECK S.Ct. a t 1495. P laintiff received notice o f th e c h a rg e s , h e a rd J u d g e G lan cey 's te s t i mony, and w as given an opportunity to present his side of the story. "To require m ore than this prior to term ination would G EN ERA L M OTORS CORPORATION, T a it D esign and M achine, and C harles N. T a it Civ. A. No. 88-0714. Y,.'l : intrude to an unw arranted extent on the g o v e rn m e n t's in te re s t in q u ic k ly re m o v in g a n u n s a tisfa c to ry em ployee." Id., 470 U .S. U nited S tates D istrict Court, E.D. Pennsylvania. .i a t 546, 105 S.Ct. a t 1495. VI. CONCLUSION Since Mr. M urray w as afforded con stitu Dec. 20, 1988, A s A m ended Feb. 13, 1989. M I tionally a d eq u ate procedure, this c o u rt is M otorist w ho w as injured in automo n e ith er req u ired , n o r p erm itted , to review bile accident b ro u g h t p ro d u cts liability ac any factual determ inations explicitly o r im tion ag ain st autom obile m anufacturer y^ol'O 886 KOLBECK V. GENERAL MOTORS CORP. C l " >5 702 F .S u p p . J3 2 (E .D .P. 1988) 533 serf on m an ufacturer's failure to include u fa c tu re r based on m a n u factu rer's failure ..wive re stra in t sy stem in his autom obile, to include passive re s tra in t sy stem in m o ^ m a n u f a c t u r e r 's m otion fo r p a rtia l sum - to ris t's a u to m o b ile. N a tio n a l T raffic and Jnary judgm ent, th e D istric t C ourt, H u y e tt, M otor V ehicle S afety A c t o f 1966, 1- ifu held th a t fe d e ra l law p re e m p te d m o to r- 206, a s am en d ed , 15 U .S.C.A . 1381- r t claim. 1426. ` Motion g ra n te d . "fc'-ii.jfe ' /States =18.3 .,, S 'I n general, th e re a re th re e w ay s in frhfch sta le law m ay be p re e m p te d by fed& ! law: first, C o n g re ss m a y e x p re ss ly preempt state law by including specific languhge in a sta tu te ; second, C o n g ress m ay preempt by use o f language w hich al though not expressly preem ptive, evidences ^congressional in ten t to com pletely occupy regulatory field; lastly, w here statu to ry .`language does n o t to ta lly p re e m p t s ta te tw, federal law preem p ts s ta te law if s ta te 5. F e d e ra l C o u rts =660.5 Question of w hether provisions of N a tional T raffic and M otor Vehicle Safety Act and occupant restrain t standard adopted by D epartm ent of T ransportation preem pted products liability claim based on automobile m a n u fa c tu re r's fa ilu re to include passive re s tra in t sy stem in autom obile m an u fac tu re d in com pliance w ith A ct and the stan dard would be certified for interlocutory appeal. 28 U.S.C.A. 1292(b); N ational T raffic and M otor Vehicle Safety A ct of 1966, 1-206, a s am en d ed, 15 U.S.C.A. 1381-1426. lW actually conflicts w ith federal law. <5. l i States =18.5 'W h ere preem ption is claimed because t a state law conflict w ith congressional icbon, federal law preem pts conflicting sthte law w here com pliance w ith both s ta te federal regulations is physical im possi b l y . or w here state law stands as ob L arry E. Coben, Philadelphia, Pa., for plaintiff. Edw ard A. Gray, Philadelphia, Pa., Ste phen J. B rogan, Jones, Day, Reavis and P ogue, W ashington, D.C., fo r defendants. D onald Camhi, Philadelphia, Pa., fo r Tait D esign and M achine and C harles N. Tait. stacle to accom plishm ent and execution o f m purposes and objectives of Congress. OPINION AND ORDER ^ P r o d u c t s L ia b ility <S=35 g tetes =18.65 Section of N ational Traffic and M otor Vehicle S a fe ty A c t p ro h ib itin g s ta te s fro m Implementing th e ir ow n autom obile sa fe ty standards did not expressly preem p t m o to r i c products liability claim a g ain st au to mobile m a n u fa c tu re r b a se d on m a n u fa c tu r e s failure to include passive re stra in t sysJ*,- >n. m o to rist's au to m o b ile. N a tio n a l Traffic and M otor Vehicle S afety A ct of 103(d), a s am en d ed , 15 U .S.C .A . HUYETT, D istrict Judge. D efendant G eneral M otors Corporation ("GM") moves fo r partial sum m ary judg m e n t in this action which a rises o u t o f an autom obile accident P lain tiff Michael J. Kolbeck ("K olbeck") w as a p a ssen g er in a 1980 Pontiac G rand Prix th a t collided on O ctober 29, 1985 w ith an autom obile operated by defendant C h arle s N . T a it (" T a it" ) w hich w a s ow ned by defen d an t T ait D esign and M achine C o m p an y ("T a it D e sig n " ). O n J a n u a r y 29, 1988, based on diversity o f citizenship, GM P ro d u cts Liability s 3 5 States =>18.65 rem oved this action from the C ourt of Com mon Pleas of Philadelphia County. The action seeks recovery for injuries plaintiff National Traffic and M otor Vehicle Safety Act, to g e th e r w ith o ccu p an t re- standard adopted by D epartm ent of su stain ed in th e accid en t The com plaint states tw o counts against the defendants. C o u n t I a lle g es, in ter alia, th a t GM is aportation, p re e m p te d m o to rist's prod- liab le fo r fa ilin g to d e sig n th e P o n tiac w ith setsliability claim a g a in s t au to m o b ile m a n a d e q u a te o ccu p a n t r e s tr a in t ,sy ste m s, spe- r n 4 702 FEDERAL S U P P L E M E N T -ally "passive restraint systems," such as airbags, in addition to seat belts. Com plaint at II 14(c), (f) and (i). Count II alleg es that defendant Tait, acting as agent for defendant Tait Design, is liable for failing to safely operate the vehicle. Defendants Tait and Tait Design are not involved in the instant summary judgment motion. GM, in its partial summary judgment motion, contends that federal law, specifi cally the National Traffic and Motor Ve hicle Safety Act, 15 U.S.C. 1381-1426 (1982 & Supp. IV 1986 & West Supp.1988) [hereinafter, Safety Act], and Federal Mo tor Vehicle Safety Standard 208, 49 C.F.R. 571.208 (1979) [hereinafter, FMVSS 208], preempt any claim based on Pennsylvania common law for GM's failure to include a passive restraint system in the 1980 Ponti ac. The question of whether the Safety Act and FMVSS 208 preempt common law claims is the subject of numerous court decisions and a substantial divergence of opinion among the courts that faced the question.1 The instant action is the first to raise the question in the Third Circuit. Be cause of the novelty of this controlling legal question, and the divergence of opin ion among the courts, I shall certify this question for interlocutory review pursuant to 28 U.S.C. 1292(b) (1982). I. The facts are simply stated. Plaintiffs vehicle, a 1980 Pontiac Grand Prix, collided with an auto driven by Charles Tait on October 29, 1985. Tait allegedly ran a red light and broadsided the Pontiac in which Kolbeck was a passenger. The force of the collision threw Kolbeck forward, and he struck a portion of the Pontiac's interior As a result of this "second collision," Koh beck sustained severe injuries. He is now a quadraplegic. The medical reports of the incident state that Kolbeck was not wearing the seat belts the auto was equipped with at the time of the accident The Pontiac contained a three point lap and shoulder safety belt occupant restraint systern. GM moves for partial summary judg ment on plaintiff's claims that the Pontiac was defectively designed because it was equipped with seat belts and not with a passive restraint system such as airbags, an energy absorbing interior, or automatic seat belts. Plaintiff asserts that the Ponti ac was unreasonably dangerous as de signed and that there were safer design alternatives available. Essentially, Kol beck argues that compliance with FMVSS 208 is only "some evidence of due care" in designing the car. GM, on the other hand, contends that the seat belt system in the Pontiac was in full compliance with federal law. Thus, it claims that plaintiffs defec tive design theory is expressly or impliedly preempted by federal law. 1 II. In 1966, Congress enacted the Safety Act, 15 U.S.C. 1381-1426. According to 1. Numerous federal courts have addressed this issue. Some courts find the Safety Act and FMVSS 208 do not preclude state common law suits for failing to include passive restraint sys tems. See. eg., Richart v. Ford Motor Co., 681 F.Supp. 1462 (D.N.M.1988); Garrett v. Ford Mo tor Co., 684 F.Supp. 407 (D.Md.1987); Murphy v, Nissan Motor Corp In U.S.A., 650 F.Supp. 922 (S.D.N.Y.1987); Wood v. General Motors Corp., 673 F.Supp. 1108 (D.Mass.1987). Murphy, how ever, was based in pari on a theory that the automobile's seat belt system did not operate properly when a seat was fully reclined. Mur phy, 650 F.Supp, at 927. Other federal courts have found passive re straint claims expressly preempted. See, e-g., ffeflel v.' General Motors Corp., slip op., no. 85-1713 (Feb. 23, 1988 D.D.C.) (1988 WL 19615); Cox v. Baltimore County, 646 F.Supp. 761 (D.Md.1986); Vanover v. Ford Motor Co., 632 F.Supp. 1095 (E.D.Mo.1986). Still other courts have found that FMVSS 208 preempts state law damage claims under an "implied preemption* theory, but not under a theory of express prt* emption. See, e.g., Staggs v. Chrysler Corp., 67$ RSupp. 270 (N.D.Ga.1987); Schick v. ChrysUr Corp., 675 F.Supp. 1183 (D.S.D.1987); Waitelet v. Toyota Motor Corp., 676 F.Supp. 1039 (D.Mont.J987); Baird v. GeneraI Motors Corp, i * 654 F.Supp. 28 (N.D.Ohio 1986). * Finally, some courts reason that under the relevant state law, the failure to include airbags , could not be the basis for finding the duty necessary to support a defective design claim, - and, therefore, do not reach the preemption issue. See, e.g., Hughes v. Ford Motor Co., 677 F.Supp. 76 (D.Conn.1987); Higgs v. Genera! Mo tors Corp., 655 F.Supp. 22 (E.D.Tenn.J985). At , oral argument, counsel for GM stated that GM not challenging plaintiffs claim on this ground* Transcript of Oral Argument, at 7 (hereinafter, Transcript). i ,0'-0 6 8 6 KOLBECK v. GENERAL MOTORS CORP. C ite M 701 F.Supp. 5}2 (E-D .Pa. 198) 535 [(6 Congressional Declaration of Purpose, Ins. Co., 463 U.S. 29, 34-38, 103 S.Ct. 2856, tb purpose of the Safety Act is "to reduce 2862-64, 77 L.Ed.2d 443 (1983) (summariz 'traffic accidents and deaths and injuries to ing FMVSS 208 history including 60 rule- versons resulting from traffic accidents." making notices, and the imposition, amend I .S.C. 1381 (1982). To fulfill this ment, rescission, reimposition, re-rescission purpose C ongress d eterm ined " it [w as] nec- of the regulation); Public Citizen v. Steed, 'sary to establish motor vehicle safety 851 F.2d 444, 445 (D.C.Cir.1988); Stale standards for motor vehicles and equip Farm Mut. Auto. Ins. Co. v. Dole, 802 ment . .. to undertake and support F.2d 474 (D.C.Cir.), cert den. sub nom.. safety research and develop New York v. Dole, 480 U.S. 951, 107 S.Ct. ment__ " W- The legislation was de- 1616, 94 L.Ed.2d 800 (1987). ned to, inter alia, provide motor vehicle ifety standards that were "uniform throughout the country." S.Rep. No. 1301, Cong., 2d Sess. 12 (1966) U.S.Code Cong. & Admin. News 1966, p. 2709. The regulation itself is also complex. It provides for three restraint systems for an automobile. The "First Option" provides that a car may be equipped with a "com plete passive restraint system . . . that re Two specific provisions of the Safety Act quired) no action by the vehicle occu U p most relevant to GM's motion. Section pants." This system is designed to protect IS92(d) provides that whenever the Secre occupants from front and lateral crashes. tary of Transportation * establishes a feder- 49 C.F.R. 571.208 S4.1.2.1. The "Second . Iji'gtandard, the Safety Act expressly Option" permits cars with a lap belt protec tmpts state safety standards concern- tion system and a belt warning system, "the same aspect of performance . . . such as a buzzer or light. The buzzer or identical to the Federal standard." 3 light, which is activated immediately after Act also provides a savings clause that ignition, reminds the occupant to "fasten ates compliance with a federal standard your seat belt." Under this option, the does not exempt any person from liability manufacturer is required to include a pas der the common law." 16 U.S.C. sive restraint system to protect from fron 1397(c).' tal crashes. 49 C.F.R. 571.208 S4.1.2.2. 5The Department of Transportation first opted FMVSS 208, 49 G.F.R. 571.208 1979),1 the occupant restraint standard, in The "Third Option" provides for a lap and shoulder belt with a belt warning system. 49 C.F.R. f 571.208 S4.1.2.3. FMVSS 208 has a "complex and The purpose of the regulation is nyoluted" legislative history. See Motor to reduce the number of deaths of ve ! Manufacturers Ass'n of the Unit- hicle occupants, and the severity of inju [States, Inc. v. State Farm Mut. Auto. ries, by specifying vehicle crashworthi- The Secretary has authority to establish safety (standards pursuant to 15 U.S.C. 1391(10), I full, 15 UA.C. i 1392(d) (Supp. IV 198) rides: ft. Whenever a Federal motor vehicle safety ^standard established under this subchapter is ^.effect, no Stale or political subdivision of a *e shall have any authority either to estab- ^lish, or to continue in effect, with respect to ijjny motor vehicle or item of motor vehicle ^equipment any safety standard applicable to , lhc same aspect of performance of such ve- a' u CC r e9uiPment which is not iden* n.tlcal to the Federal standard. Nothing in this e^yttn shall be construed as preventing any f*?te from enforcing any safety standard ^.which is identical to a Federal safety slan- 70J - 1 4 dard. Nothing in this section shall be con strued to prevent the federal Government or the government of any State or political sub division thereof from establishing a safety re quirement applicable to motor vehicles or mo tor vehicle equipment procured for its own use if such requirement imposes a higher standard of performance than that required to comply with the otherwise applicable Federal standard. 4. Section 1397(c), 15 U.S.C. 1397(c) (1982), provides "Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from liabil ity under common law." 5. The citation is to the standard in effect when the Pontiac was manufactured in 1980. FMVSS 206 has not substantially changed since then. r-- M 702 FEDERAL SUPPLEMENT ness requirements in terms of forces and sumption that the federal law does noj accelerations measured on . . . dummies displace existing state law. Maryland r in test crashes, and by specifying equip Louisiana, 451 U.S. 725, 746, 101 S q,' ment requirements for active and passive 2114, 2129, 68 L.Ed.2d 576 (1981); Ci /. restraint systems. lone v. Liggett Group, Inc., 789 F.2d ]gi 49 C.F.R. 571.208 S2. 185 (3rd Cir.1986) cert den., 479 U.S. 1013' 107 S.Ct. 907, 93 L.Ed.2d 857 (1987); Baird III. v. General Motors, 654 F.Supp. 28 29 11] In general, there are three ways in (N.D.Ohio 1986). which a state law may be preempted by GM does not suggest that Congressional federal law. First, Congress may express regulation occupies the entire field of mo. ly preempt state law by including specific tor vehicle safety* It argues, as other language in a statute. Jones v. Rath auto manufacturers have elsewhere, that Packing Co., 430 U.S. 519, 525, 97 S.Ct. plaintiff's passive restraint claim is 1305, 1309, 51 L.Ed.2d 604 (1977). Second, preempted both expressly and because the Congress may preempt by the use of lan purported law on which the claim is based guage which although not expressly "stands as an obstacle to the accomplish preemptive, "evidence[sj a Congressional ments of Congress' full purposes." intent to completely occupy a regulatory field." Baird, 654 F.Supp. at 29; see Fi A. delity Federal Savings & Loan v. De La [3] GM urges that 15 U.S.C. 1392(d) Cuesta, 458 U.S. 141, 153, 102 S.Ct 3014, expressly preempts plaintiffs claims. That 3022, 73 L.Ed.2d 664 (1982). Lastly, where statute provides in part: the statutory language does not totally [N]o State or political subdivision of a preempt state law, federal law preempts state shall have any authority either to state law if the state law actually conflicts with federal law. See Michigan Canners establish, or to continue in effect, with respect to any motor vehicle or item of & Freezers Ass 'n v. Agricultural Market ing & Bargaining B6L, 467 U.S. 461, 469, motor vehicle equipment any safety stan dard applicable to the same aspect of 104 S.Ct 2518, 2523, 81 L.Ed.2d 399 (1984); performance of such vehicle or item of International Paper Co. v. Ouellette, 479 equipment which is not identical to the U.S. 481, 490-92, 107 S.Ct 805, 811, 93 Federal Standard. Nothing in this sec L.Ed.2d 883 (1987). tion shall be construed as preventing any 12] Where preemption is claimed be cause of a state law conflict with Congres sional action, federal law preempts the con flicting state law where compliance with both the state and federal regulations is a physical impossibility, see Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct 1210, 1217-18, 10 L.Ed.2d 248 (1963), or where the state law State from enforcing any safety stan dard which is identical to a Federal stan dard. Thus, GM claims that any state regulation of safety standards, such as common law damage awards, must be "identical" to the federal regulation. In its brief, GM rele gates the provision which plaintiff argues saves his passive restraint claim to a foot "stands as an obstacle to the accomplish note. ment and execution of the full purposes Section 1397(c) provides a savings clause. and objectives of Congress." Hines v. Da- It provides that compliance with the Safety vidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, Act does not prevent liability under the 85 L.Ed. 581 (1941); see Jones v. Rath "common law." The Third Circuit explicit Packing Co., 430 U.S. 619, 526, 97 S.Ct ly stated that an automobile manufacturer 1305, 1310, 51 L.Ed.2d 604 (1977). Over is not relieved of common law liability for riding any preemption analysis is the pre-6 failing to select a safer design alternative 6. The Safety Act clearly was not designed to occupy the entire field of automotive safety standards. See Chrysler Corp. v. Rhodes, *1* F.2d 319, 325 (1st Cir.1969). h i ^ lQ)-0 066 KOLBECK v. GENERAL MOTORS CORP. Cite u 702 F.Supp. 532 (E-D.Pn. 1988) 537 ben it complies with a safety standard passive restraint systems, See Heflel v. nomulgated by the Department of Trans- General Motors, no. 85-1713 (D.D.C. Feb nirtation pursuant to the Safety Act. ruary 23, 1988); Hughes v. Ford Motor ^eson v. Chrysler Corp., 630 F.2d 950, Co., 677 F.Supp. 76 (D.Conn.1987); Van(3rd Cir.1980) cert, den., 450 U.S. 959, over v. Ford Motor Co., 632 F.Supp. 1095 "{jl g e t 1418, 67 L.Ed.2d 383 (1981).' (E.D.Mo.1986). These courts construe the Further, section 1392(d) only prohibits savings clause to apply only to matters not e'states from implementing safety stan- covered by the FMVSS, or in cases of negli rds of their own. It does not directly gent compliance with FMVSS.9 I am un dress the state common law. Baird, 654 able to find a basis to support such a '-vjupp. at 30. To determine the effect of narrow reading of the effect of section (Us failure to address the state common 1397(c). "V I turn to Cipollone v. Liggett Group, 789 F.2d 181, 185-86. In Cipollone, *e court found that the failure of Con f e s s to refer explicitly to the state com- nipii law in the Cigarette Labeling Act's .jpreemption provision, 15 U.S.C. 1334 when it had done so in other pre- ption provisions, id. at n. 5, foreclosed tJe possibility that the Labelling Act ex- ^ ' isly preempted a state common law it.' Cf. Ferebee v. Chevron Chemical W , 736 F.2d 1529, 1542 (D.C.Cir.) (when |&tes are explicitly given the authority to `gulate use of substance, the Federal In secticide, Fungicide, and Rodenticide Act, 7 Further, I disagree with the emphasis these courts place on the legislative history of the Safety Act. The Vanover court concluded that a damage award from a passive restraint claim would be a state law standard "which would require the in stallation of airbags on the penalty of enor mous liability in tort, certainly which would not be identical to the federal standard, which expressly authorizes manufacturers of automobiles to use any of several re straint systems, only one of which is air bags." 632 F.Supp. at 1097; see Cox, 646 F.Supp. at 763-64. U.S.C. 136 et seq. (1982), cannot be read As discussed further below, it is not that bar state law damage actions based on I believe the regulatory effect of common jisBure of label to conform to federal regu law damage awards is irrelevant to the lations), cert denied, 469 U.S. 1062, 105 preemption issue. Cipollone counsels that C t 545, 83 L.Ed.2d 432 (1984). express preemption analysis be narrowly The courts which find express preemp tailored to the specific provisions of the tion of passive restraint claims reason that statute in question. Accord Palmer v. Lig ***** common law damage awards are gett Group, Inc., 825 F.2d 620, 626 (1st equivalent to state regulation and, since Cir.1987). Here, section 1381 expressly de FMVSS 208 provides manufacturers with clares the Safety Act's purpose. That sec Ioptions for restraint systems, a state tion does not expressly include national uni .damage award can not be used to require formity among the Act's purposes. Thus, I <$? fccDawson is consistent with the seminal auto- Act is a salutary step in this direction and not k mobile crashworthiness case of Larsen v. Gener" el Motors, 391 F.2d 495, 506 (8th Cir.1968), where the court stated: an exemption from common law liability. 8. Other courts which find no express preemp is apparent that the [Safety Act] is intended |o he supplementary of and in addition to the ^`common law of negligence and product iiabilI f ity. The common iaw is not sleriie or rigid prj acd serves the best Interests of society by a d a p tin g standards of conduct and responsi- bilily that fairly meet the emerging and develJj.oping need of our time. The common iaw ^standard of a duty to use reasonable care & under the circumstances can at least serve the needs of our society until the legislature imYyfPoses higher standards or the courts expand 'm ` the doctrine of strict liability for tort. The tion of passive restraint claims generally agree with this reasoning. They reason that Congress surely knows how to expressly bar claims when they want to, and that 1392(d) does not do so. See Richart, 681 F.Supp. at 1466; Schick. 675 F-Supp. at 1184-85: Wood, 673 F.Supp. at 1114; Murphy, 650 F.Supp. at 927; Baird, 654 F.Supp. at 30-31. 9. Negligent compliance would occur when the restraint system the manufacturer provides fails to operate properly. ``M i? 538 702 FEDERAL SUPPLEMENT believe the Cox and Vanover courts' rely federal law and second the effect of the too heavily on the legislative history of the operation of state law' on these purposes '' Safety Act, specifically S.Rep. No. 1301, Finberg v. Sullivan, 634 F.2d 50, 63 (3^) 89th Cong., 2d Sess. (1966), in determining Cir.1980) (in banc) citing Perez v. Camp whether a passive restraint claim is ex pressly preempted by the Safety Act. See American Tobacco Co. v. Patterson, 456 U.S. 63, 75, 102 S.Ct. 1534,1541, 71 L.Ed.2d 748 (1982) ("Going behind the plain lan guage of a statute in search of possible contrary congressional intent is 'a step to be taken cautiously' even under the best of circumstances."). The regulatory effect of common law damage awards and the legis lative history of a statute are more proper ly considered in an evaluation of Congres sional objectives under an implied preemp tion analysis when Congress expressly en acts a declaration of purpose as part of the legislative scheme. See International Pa per Co. v. Ouellette, 479 U.S. 481, 490-92, 107 S.Ct. 805, 812, 93 L.Ed.2d 883 (1987) (looking to statutory scheme as a whole to determine the full purposes and objectives of Congress); Blum v. Stenson, 465 U.S. bell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971); see Cipollone, 789 F.2d at 187 The regulatory scheme presented by the Safety Act requires that I look not only to the purposes of Congress in adopting the Safety Act, but also to the purposes of the Secretary of Transportation in adopting FMVSS 208. As stated above, the Safety Act contains an express declaration of purpose in section 1381. That section sets forth the purpose of the Safety Act as "reducing] traffic accidents and deaths and injuries__ " 15 U.S.C. 1381. Reading the Safety Act u a whole, including the savings clause and the preemption provision, makes clear that the possibility of common law damage awards was viewed by Congress as consist ent to some extent with the overall objec tive of reducing highway carnage. 886, 104 S.Ct 1541, 79 L.Ed.2d 891 (1984); GM vigorously contends that allowing City of Rome v. United States, 446 U.S. plaintiffs passive restraint claim to be 156, 199, 100 S.Ct. 1548, 1573, 64 L.Ed.2d heard by a jury will impede another pur 119 (1980) (Powell, J., dissenting) ("We re pose of the Safety Act. That purpose, sort to legislative materials only when the although not expressly contained in section Congressional mandate is unclear on its 1381, is found in the legislative history of i- face."). the Act. "[The nature] of the motor ve- 'j I, therefore, hold that the failure of Conh ide manufacturing industry in the United gress to explicitly include reference to the States requires that motor vehicle safety ; state common law in section 1392(d), cou standards be not only strong and adequate-' pled with the express reference to common ly enforced, but they be uniform through- i law actions in the savings clause of section out the country." S.Rep. No. 1301, at 12 1397(c), compels the conclusion that the GM finds support for this argument ia Safety Act does not expressly preempt statements from Dawson v. Chrysler Mo- ; plaintiffs common law products liability tors Corp., 630 F.2d 950 (3rd Cir.1980). In j claim. I do not believe that Congress in Dawson, Judge Adams discussed the effect tended to foreclose common law damage of section 1397(c) on automobile manufac awards when it gave the Secretary of turers. Transportation the authority to adopt In effect, this permits individual juries - FMVSS 208. applying varying laws in different juna-. dictions throughout the country to set B. automobile safety standards and to uir [4] To determine whether a common pose on automobile manufacturers conlaw damage award for failing to include a Dieting requirements. It would be diffr f passive restraint claim would stand as an cult for members of the industry to alter ,, obstacle to the accomplishment and execu their design and production behavior in tion of the full objectives of Congress, 1 response to jury verdicts in such cases, ;> must "examine first the purposes of the because their response might well be a - KOLBECK v. GENERAL MOTORS CORP. C ite u 702 F .S u p p . 3 2 (E .D .P a. 1SS8) 539 '^variance with what some other jury de- loan institutions preempted any conflicting -1rides is a defective design. Under these state regulation, including decisions of a ^circumstances, the law imposes on the state supreme court. In reaching its con 'industry the responsibility of insuring clusion that the regulation preempted any .'<Svast numbers of persons involved in contrary state law, the Court emphasized automobile accidents, the clear intent of the Board in promulgat k . at 962. ^Admittedly, Judge Adams eloquently ex, presses the dilemma faced by automobile manufacturers. However, the Dawson 5ourt did permit the plaintiff to maintain common law crashworthiness claim. .Wus, to reconcile the possible conflict be.Breen the stated purpose of the Safety Act jnI reducing highway carnage and the inter- ing the regulation to preempt any conflict ing state law as evidenced by the preamble accompanying and explaining the regula tion. Id. at 158 & n. 13, 102 S.Ct. at 3025 n. 13. Nothing in the legislative history of the Safety Act or in FMVSS 208 provides a clear statement that any safety standard was designed to preempt a common law product liability claim. B in national uniformity of design stan- Moreover, close scrutiny of these deci -Juds, I look to the recent Supreme Court sions reveals that a Congressional purpose decisions concerning preemption doctrine. gleaned from one statement in the legisla 'In International Paper Co. v. Ouellette, tive history of a statute does not provide an " IU.S. 481, 107 S.Ct. 805, 93 L.Ed.2d 883 adequate foundation to support a finding of '{1987), the Supreme Court found that an preemption based on "interference with the action brought under Vermont nuisance achievement of the `full purposes and ob 'jaw against a pollution source located in jectives of Congress.' " Ouellette, 479 New York state was impliedly preempted U.S. at 492, 107 S.Ct at 812, quoting Hills Iv the Clean Water Act, 33 U.S.C. 1251 borough County v. Automated Medical d ieq [hereinafter CWA]. The conflict at Laboratories, 471 U.S. 707, 713, 105 S.Ct. issue in Ouellette was between a standard 2371, 85 L.Ed.2d 714 (1985). Particularly . on a pollution source under New where a savings clause has been interpret ork law and the standard that could po- ed to preserve common law actions for ntially be imposed on the source under failing to exceed the safety standards fcrmont law. The Court refused to accept promulgated by the Secretary, Dawson, su . claim that a savings clause10 and the pra, I am unwilling to conclude that any 'dative history of the CWA compelled interest in national uniformity of design i inference that Congress intended to standards, standing alone, predominates serve the right to bring suit under the over the purposes expressly included in the lay-of [any state affected by the pollution Safety Act by the adoption of section Source]." Id. at 493, 107 S.Ct. at 812. To 1397(c). j^termine whether the claim under Veroo'nt law was preempted, the Court looked "goals and policies of the Act" be"the Act itself d[id] not speak directito, the issue." Id. Turning to the purposes of safety stan dards in general, GM argues that the effect of the existence of an explicit standard governing any specific aspect of automo bile performance requirements is such that M Fidelity Federal Savings & Loan v. it precludes conflicting state regulation in La Cuesta, 458 U.S. 141, 159, 102 S.Ct. the form of a damage award for failing to "i, 3025, 73 L.Ed.2d 664 (1982), the Court select any specific option within FMVSS led that a Federal Home Loan Bank 208. To address this argument, it is neces regulation governing due-on-sale sary that I determine the effect of a safety ces of federally insured savings and 'P' [Section 505(e) of the CWA. 33 U.S.C. r*3S5(e) states: Nothing in this section shall restrict any right hich any person . . . may have under any stat- standard on a common law claim. ute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief.... f ' (; ' i;i :p:; ! i1 740 702 FEDERAL SUPPLEMENT The Safety Act refers to safety stan F.2d at 506 (finding that the safety stan- dards as "minimums." 15 U.S.C. 1391(2). dards promulgated under the Safety Act The legislative history of the Safety Act are "supplementary of and in addition to states that "the Federal minimum safety the common law of negligence and product standards need not be interpreted as re liability"). This interpretation of the effect stricting State common law standards of of the safety standards is consistent with care. Compliance with such standards that of courts interpreting the effect of would thus not necessarily shield any per safety standards promulgated by federal son from product liability at common law." authorities under other statutes. See, e.g S.Rep. No. 1301, at 12. Further, section Ferebee, 736 F.2d at 1543 ("(FJederal legis 1397(c) was designed to specifically estab lation has traditionally occupied a limited lish "that compliance with safety standards role as the floor of safe conduct; before is not to be a defense or otherwise to affect transforming such legislation into a ceiling the rights of parties under common law, particularly those related to . . . tort liabili ty." H.R.Rep. No. 1776, 89th Cong., 2d Sess. 24 (1966). GM argues, based on a pronouncement of the National Highway Transportation Administration ("NHTA"), that the stan dards are a minimum in the "sense that a manufacturer `must not fall short' of them." The NHTA pronouncement states: "Minimum" performance standards do not equate with "minimal" performance standards___ The word "minimum" in the statutory definition of motor vehicle safety standards [ 1391(2) ] does not re fer to the substantive content of the standards but rather to their legal sta tus--that the products covered must not fall short of them. 41 Fed.Reg. 2391, 2392 (1976). on the ability of states to protect their citizens, and thereby radically adjusting the historic federal-state balance, courts should wait for a clear statement of congressional intent to work such an alteration." (empha sis in original) (citation omitted)). I, there fore, conclude the purpose of safety stan dards is to establish minimum performance standards for automotive safety; they do not establish the standard of conduct re quired under the common law. Concerning the purposes and objectives of FMVSS 208, it contains an explicit state ment of purpose as required by the Safety Act. 15 U.S.C. 1392; S.Rep. No. 1301, 89th Cong., 2d Sess. 7 (1966) ("In issuing each standard, the Secretary is expressly required to publish a statement of the basis and purpose which provides a non-technical explanation sufficient to enable the public to understand the purpose and, where ap As far as it goes, GM's position is con propriate, the limitation's of the standards sistent with the Safety Act and the NHTA coverage___"). Similar to the purpose of statement. A manufacturer faces sanc the Safety Act, the purpose of the regula tions for falling short of the safety stan tion is to reduce deaths and the severity of dards promulgated by the Secretary. 15 injuries resulting from accidents "by speci U.S.C. 1398, 1400, 1414 (1982). How fying crashworthiness requirements-- " ever, the caselaw under the Safety Act has consistently given safety standards the ef fect contemplated in the legislative history of the Act discussed above. See Shipp v. General Motors Corp., 750 F.2d 418, 421 (5th Cir.1985) ("Of course compliance with 49 C.F.R. 571.208 S2. Again, as stated above, the regulation's specification of crashworthiness requirements must be viewed as "supplementary of and in addi tion to" the standards established by the common law. Larsen, 391 F.2d at 506. such minimum safety standards does not The purposes of safety standards and exempt or immunize a manufacturer from any subsidiary interest in national uniform common law strict liability___"); Dawson, ity they are designed to further, standing 630 F.2d at 957-58 (expressly rejecting the alone may not provide an adequate basis to argument that compliance with all autho overcome the presumption against finding rized safety standards precludes a common preemption. See Maryland v. L o u is ia n a , law product liability claim); Larsen, 391 451 U.S. 725, 746, 101 S.Ct 2114, 2129, 68 v\*| M m KOLBECK v. GENERAL MOTORS CORP. 541 C llt u 702 F .S upp. 532 (E D .F a. 1980) f l Ed 2d 576 (1981); Rice v. Santa Fe Ele Davidoivitz, 312 U.S. at 67, 61 S.Ct. a 404; c to r Corp., 331 U.S. 218, 230, 67 S.Ct. Palmer, S25 F.2d at 628; Cipollone, 789 ` 1146,1152, 91 L.Ed. 1447 (1947). However, F.2d at 187 & n. 6; Daw$o?i, 630 F.2d at state law is also preempted if it inter- 962. "An automobile manufacturer faced ' fgjgg wjth the methods by which the feder- with the prospect of choosing the [passive V1 statute was designed to reach [the goals stated in the statute]." Ouellette, at 494, ! 107 S.Ct. at 813, citing Michigan Canners ' &Freezers Ass'n v. Agricultural Marketi ing & Bargaining Bd., 467 U.S. 461, 477, ' '104 S.Ct 2518, 2527, 81 L.Ed.2d 399 (1984). ,'GM contends that FMVSS 208 was specifi- cally designed to provide manufacturers '.with a choice among restraint system alter natives." It further claims that the impo sition of a common law damage award for the failure to include a passive restraint restraint options], or facing potential expo sure to compensatory and punitive dam ages for failing to do so, has but one real istic choice." Baird, 654 F.Supp. at 32. The prospect of common law damage awards for failing to chose the passive restraint alternatives removes the element of choice expressly authorized in FMVSS 208 and further preserved by section 1410b(b)(2).13 Through the subsidiary objectives of pro 'system in the Pontiac will have the regula moting national uniformity, and preserving tory effect of requiring the inclusion of restraint system options and the common passive restraint systems. Hence, accord law to the extent possible, the Safety Act ing to GM, the prospect of common law and FMVSS 208 are designed to achieve [-liability for the failure to select an option the Safety Act's primary goal of reducing available under FMVSS 208 will effectively highway deaths and injuries. Plaintiff's subvert the legislative purpose of providing passive restraint claim would tip the care 'manufacturers flexibility to chose among fully drawn balance of those purposes by alternatives. foreclosing options in favor of common law Clearly, a common law damage award damage awards. Cf. Cipollone, 789 F.2d pray have the effect of imposing require at 187. Thus, the effect of plaintiffs pas ments contrary to federally established sive restraint claim "interferes with the purposes and objectives.12 De La Cuesta, methods by which the federal statute was .58 U.S. at 156-59, 102 S.Ct. at 3024-26; designed to reach [the primary] goal," an Diego Building Trades Council v. Ouellette, at 494, 107 S.Ct. at 813, to an Garmon, 359 U.S. 236, 247-48, 79 S.Ct. extent sufficient to overcome the presump |?3, 781-82, 3 L.Ed.2d 775 (1959); Hines v. tion against preemption. On this extreme- 1L This regulatory policy was stated in the anhouncement of the Final Rule for Standard 208 as"providing] sufficient latitude for industry to develop the most effective systems" rather than "mandating the specific use of one device such s airb ag s...." 49 Fed.Reg. 28,962, 28,997 f (July 17, 1984). ft Further, in 1974, Congress explicitly pro claimed that occupant safety standards may not require the installation of airbags. 15 U.S.C. $ 1410b(b)(2) (1982) states: ~JN]o Federal motor vehicle safety standard ; respecting occupant restraint systems may-- V (A) have the effect of requiring, or T. -i (B) provide that a manufacturer is permit- .ted to comply with such a standard by means ,-of--an occupant restraint system other than a seatbelt. amendment to the Safety Act also autho- nzed the Secretary of Transportation to develop occupant safety standard restraint standards. J S U.S.C. 1410b(b)(3)(A). -. The Supreme Court expressed the issue in Sen Diego Building Trades Council v. Garmon, 359 U.S. 236, 246-47, 79 S.Ct. 773, 780-8!, 3 L.Ed.2d 775 (1959). Our concern Is with delimiting areas of con duct which must be free from state regulation if national policy is to be left unhampered. Such regulation can be as effectively exerted through an award of damages as through some form of preventative relief. The obli gation to pay compensation can be, indeed is designed to be, a potent method governing conduct and controlling policy. 13. I am mindful that other courts disagree with this conclusion. I believe, however, that Richart v. Ford Motor Co., 681 F.Supp. 1462, 146869 (D.N.M.1988), Garrett v. Ford Motor Co., 684 Fupp. 407 (D.Md.1987), and Wood v. General Motors Corp., 673 F.Supp. 1108 (D.Mass.1987), misapprehend the regulatoiy effect of common law damages awards and the effect of section 1397(c) in light of Ouellette, Palmer, and Cipol lone. 2 702 FEDERAL SUPPLEMENT ij close issue, I hold that the Safety Act Also, the preemption question is an issue of j and FMVSS 208 preempt a common law first impression in this circuit and one on damage claim for failing to include a pas which courts disagree as a matter of law sive occupant restraint system. See Board of Education of Townshin i i High School District no. 2H, Cook Coun IV. ty v. Climatemp, Inc., 91 F.R.D. 245, 251 (51 Lastly, I address the certification of (N.D.111.1981). An immediate appeal of this an interlocutory appeal of the question be issue will advance the ultimate resolution fore me. Under 28 U.S.C. 1292(b) (1982), of this dispute. I must find that the question subject to an To promote an expeditious and efficient interlocutory appeal is (1) a controlling resolution of this litigation once the Court ii question of law, (2) about which there is a of Appeals resolves the interlocutory ap substantial ground for a difference of opin peal, discovery on plaintiff's claims, other ion, and (3) that an immediate appeal may than the passive restraint claims, shall con materially advance the ultimate disposition tinue. Discovery on the passive restraint of the litigation. 28 U.S.C. 1292(b); In claims shall be stayed. re Cement Antitrust Litigation (MDL no. 296), 673 F.2d 1020, 1026 (9th Cir.1982). An appropriate order follows. Further, 1292(b) is to be used "only in exceptional situations in which allowing an ORDER i interlocutory appeal would avoid protracted Upon consideration of defendant General i and expensive litigation." Id.; see Coopers Motors Corporation's Motion for Partial i & Lybrand v. Livesay, 437 U.S. 463, 475, Summary Judgment, plaintiff Michael J. {. : i j 98 S.CL 2454, 2461, 57 L.Ed.2d 351 (1978) Kolbeck's response thereto, the supporting (discussing the legislative history of memoranda, letters, oral argument, and for 1292(b)); Milbert v. Bison Laboratories, the reasons stated in the attached opinion, 260 F.2d 431, 433-35 (3d Cir.1958). 1. Defendant General Motors Corpora The issues raised by GM's motion for tion's Motion for Partial Summary Judg partial summary judgment in this lawsuit ment is GRANTED. Summary Judgment concern important areas of state and feder on the "passive restraint claims" contained al concern. My resolution of the preemp in Count I of the complaint shall be entered tion question is dispositive of plaintiffs in favor of defendant General Motors Cor passive restraint claims. Cf. Trans World poration and against plaintiff Michael J. Airlines, Inc. v. American Coupon Ex Kolbeck. change, Inc., 682 F.Supp. 1476, 1489 (C.D. Cal.1988) (certifying for interlocutory ap peal an order which is dispositive of liabili ty issues). 2. Discovery on plaintiff's passive re straint shall be stayed pending resolution of the interlocutory appeal. Discovery on all other claims shall continue. As evidenced by the diversity of federal court decisions on the matter, supra at n. 3. The following issue is certified for 1, there is a substantial ground for differ interlocutory appeal pursuant to 28 U.S.C. ence of opinion as to whether the Safety 1292(b) (1982): Act and FMVSS 208 preempt passive re Whether the provisions of the National straint claims. The cases cited demon Traffic and Motor Vehicle Safety Act, 15 strate a "substantial ground for difference U.S.C. 1381-1426(1982 & Supp. IV 1986 of opinion." "Substantial grounds for dif & West Supp.1988), and Federal Motor Ve ference of opinion may be demonstrated by hicle Safety Standard 208, 49 C.F.R. adducing conflicting and contradictory 571.208 (1979), preempt a claim based on opinions of courts which have interpreted the Pennsylvania common law of products and ruled upon the particular question of liability for an automobile manufacturer's law." Doruiard v. Consolidated Rail failure to include a passive restraint sys Corp., 505 F.Supp. 58, 59 (E.D.Pa.1980). tem in an automobile manufactured in com- bioj'<r egg M ISSIO N NAT. IN S. CO. v. H A R T F O R D F IR E IN S. CO. Cite u 702 F.Supp. 543 (E.D-P&. 1989) 3 phance with th e S afety A ct and FM VSS 3. In s u ra n c e =604( 1) In su rer of property ow ner under all 1IS SO ORDERED. risk policy was not entitled to contribution from insurer of building contractor under b u ild ers' risk policy fo r loss su ffered by property ow ner when construction project w as destroyed by fire w here all-risk policy covered interest of ow ner of construction site and in terest of contractor while build e r s ' ris k policy in su re d only c o n tra c to r's in te re s t a s co n tracto r in buildings under M ISSIO N NATIONAL INSURANCE COMPANY construction, and property owner was not nam ed in builders' risk policy and its in ter e st w as no t encom passed within coverage of builders' risk policy so th a t tw o policies HARTFORD FIRE covered different insureds and protected INSURANCE COMPANY. two d ifferent insurable interests. Civ. A. No. 85-6867. United S tates D istrict Court, E.D. Pennsylvania. Jan . 9, 1989. P ro p erty o w n e r's all-risk in s u re r b ro u g h t declaratory judgm ent action ^' a g ain st c o n tra c to r's b u ild e rs' risk in s u re r , to determ ine dispute as to respective liabiliS:.ties with reg ard to destruction by fire of construction site. The D istrict C ourt, Ditr .ter, J., held th a t p ro p e rty o w n e r's all-risk .insurer did no t have any rig h t to subroga` on o r c o n trib u tio n fro m c o n tra c to r's in' surer. D e fe n d an t's m otion fo r s u m m a ry ju d g : ment granted. 4. In su ra n c e @=6060.1) P ro p e rty o w n e r's all-risk in s u re r did not have any right to subrogation from c o n tra c to r's in s u re r fo r fire w hich de stroyed construction site where construc tion contract betw een ow ner and contractor provided th a t ow ner and contractor waived all rig h ts a g ain st each o th er fo r dam ages caused by fire or other perils to the extent covered by insurance. 5. I n s u r a n c e @=606(1.1) E ven if th e re w ere no provision in con struction contract waiving rights of owner and contractor against each other for dam ages caused by fire or other perils to the extent covered by insurance, fact th at prop e rty o w n e r's all-risk in su ra n ce also insured c o n tra c to r's in te re s t w ould b a r su b ro g a tio n rig h t ag ain st contractor's insurer. ib'd 1. In s u ra n c e @=604(1) For insurer to be entitled to contribu t j i o n from an other insurer, policies in ques t i o n m u s t in s u re sa m e p ro p e rty , sam e inl terest, and sam e risk. V: k'-jf 2*. In s u ra n c e @=504(3) ;; U.. A lth o u g h s e p a ra te policies p u rp o r t to ne excess as to each other, it is only w hen . insured in terests are th e sam e in each th a t . other insurance" provisions apply to de. term ine which policy is prim ary and which v1, policy is excess. 6. I n s u r a n c e @=606(1) W here there are two insureds under contract and insurer pays one insured am ount claimed as dam ages, no rig h t of subrogation arises against person who holds sta tu s o f additional insured. C ozen, B eg ier & O'C onnor, R onald B. Ham ilton, Philadelphia, Pa., for plaintiff. Sw eeney, S h eeh an & S pencer, T hom as L. Delevie and C hristopher P. Leise, Philadel phia, Pa., for defendant. Publications It is anticipated that TALC will communicate with its members by means of a monthly newsletter. This publication will be made available electronically and conventionally. Each newsletter will be sponsored by one or more members of the technology industry. TALC'S substantive journal will be published annually. The materials for the journal will be edited from those prepared for the annual conference and other CLE programs. Like the newsletter, it is anticipated that the journal will be sponsored by one or more members of the technology industry. The Evolutionary Stages o f T A LC A preliminary evolutionary plan will be developed for TALC through the year 2001. C O N C L U SIO N It is time to create a focus on the meaningful coordination of the advancement of technology within the legal system. We have all reached the state of awareness that technology plays an important role in what we do. However, we must do more than simply be aware. There is a tremendous need within the system. It is a need to understand, a need to learn, a need to be in control of our professional destiny. We must all reach the Twenty-First Century together. THE PREEMPTIVE EFFECT OF FIFRA ON TORT CLAIMS AGAINST PESTICIDE MANUFACTURERS BASED ON INADEQUATE LABELING Submitted by: Richard C. Ausness Ashland Oil Professor of Law University of Kentucky College of Law Introduction. The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)1 empowers the Environmental Protection Agency (EPA) to regulate the manufacture, sale, and use of pesticides.3 FIFRA requires that all pesticides be registered with the EPA before they can be distributed for sale in the United States.3 To qualify for registration, a pesticide must be able to perform its intended function safely and without unreasonable harm to the environment.4 As part of the registration process, the manufacturer submits a proposed label to the EPA for approval. The proposed label 14 CO CO Qtoi-fl will contain appropriate health warnings and instructions for use. These must be "adequate to protect health and the environment."9 While FIFRA gives the EPA exclusive control over product labeling and packaging,9 states and their political subdivisions are permitted to regulate the sale and use of pesticides insofar as such regulation does not conflict with FIFRA.' However, it is not altogether clear whether compliance with EPA labeling requirements is sufficient to preempt tort actions against product manufacturers by those who are injured by exposure to pesticides. Although many courts accepted preemption as a bar to liability in failure to warn cases,9 a significant number have rejected the preemption defense.9 The United States Supreme Court has not yet ruled on the preemptive effect of FIFRA; however, the Court's recent decision in Cipollone v. Liggett Group, Inc.TM suggests that it may be sympathetic to the preemption defense. I. The Preemption Doctrine. The Supremacy Clause declares that the laws of the United States shall be the supreme law of the land.'1 Consequently, Congress may enact laws that supersede slate statutes or local ordinances.11 Common-law doctrines that are inconsistent with federal law are also subject to the preemption doctrine.11 There are various types fef preemption. For example, a federal statute may expressly preempt state law.19 In some circumstances, federal administrative regulations may also be given preemptive effect.19 Preemption may also occur when a federal regulatory scheme effectively occupies the field and leaves no room for regulation by state or local governments.19 Finally, state law may be preempted when it conflicts with federal regulatory policy.1' II. Preemption Cases Under FIFRA. As mentioned earlier, a number of federal and state courts have consid ered the preemptive effect of FIFRA on inadequate labeling claims.19 This section will focus on the reasoning of the four federal appellate courts which have ruled on the preemption issue as of this date. A. Ferebee v. Chevron Chemical Company. Ferebee v. Chevron C hem ical Co.19 was the first case to rule on the preemptive effect of FIFRA. In Ferebee, an agricultural worker brought suit against a herbicide manufacturer, alleging injury from exposure to paraquat, "Die worker claimed that the product's labeling was inadequate because it failed to warn that long-term exposure to paraquat could result in serious lung disease. The manufacturer responded that section 136v(b) of FIFRA preempted state regulation of product labeling. According to the manufacturer, damage awards based on inadequate labeling were regulatory in nature and, therefore, were prohibited by section 136v(b). The court in Ferebee, however, declared that awarding damages against a manufacturer whose labeling was approved by the EPA did not conflict with FIFRA's regulatory scheme. The court distinguished between statutory or administrative 15 regulations on one hand and damage awards on the other. According to the court, manufacturers had no choice but to comply with statutory and administrative regulations. One the other hand, tort liability left manufacturers with a choice: they could either change their labeling (or request the EPA to approve a change) or they could retain existing labeling and continue to pay damage awards. In the court's view, tort liability did not constitute state regulation of labeling because manufacturers were not compelled to label their products in accordance with jury verdicts.20 The Ferebee court also concluded that damage awards did not frustrate federal regulatory objectives because statutes, such as FIFRA, normally prescribed a floor of acceptable conduct. Furthermore, the court declared that it would not transform federal regulation into a ceiling on the ability of the states to protect their citizens without a clear statement from Congress.21 Consequently, it rejected the defendant's preemption argument. B. Papas v. Upjohn Company. In Papas v. Upjohn Co.,a a worker brought suit against two pesticide manufacturers, alleging injury by exposure to their products. The plaintiff contended that the products in question were inadequately labeled. The court in Papas declared that Congress intended to establish a comprehensive regulatory scheme when it enacted FIFRA. According to the court, labeling decisions necessarily involved a weighing of risks and benefits. In its view, Congress had exclusively vested the EPA Administrator with this responsibility.22 The Papas court went on to conclude that the federal government had "occupied the entire field of labeling regulation, leaving no room for the states to supplement federal law, even by means of state common law tort actions.''24 The court in Papas also declared that FIFRA was intended to achieve uniform ity in the sense that the EPA Administrator was expected to apply the same criteria in making decisions about pesticide labeling. According to the court, holding a manufacturer liable for inadequate labeling would frustrate this regulatory objective because "the warning label for that pesticide would not be based on the same criteria that EPA uses to establish warnings for all pesticides.''20 The Papas court also disagreed with Ferebee's determi nation that tort liability would not conflict with federal regulatory policy because manufacturers could retain existing labeling and pay damage awards if juries found EPA-approved warnings to be inadequate. The court concluded that the pressure caused by tort liability "would hinder the development of an orderly, systematic, and uniform nationwide labeling scheme."27 After the court's opinion in Papas was handed down, the parties sought review before the United States Supreme Court. The Court vacated the appellate court's judgment and remanded the case for further consideration in light of its recent decision in Cipollone,20 At the present time, the appellate court has not issued a new opinion in Papas. O i CD O 16 't C. Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc. Arkansas-Platte involved an action by a landowner against a chemical manufacturer.29 The landowner claimed that chemicals manufactured by the defendant had contaminated its land. The plaintiff alleged that the manufacturer failed to provide adequate warnings about the environmental risks of its products. The manufacturer argued that the plaintiffs claims were preempted by FIFRA. The trial court rejected the defendant's preemption argument, however, this decision was reversed on appeal. Like the Papas court, the court in Arkansas-Platte, concluded that damage awards based on failure to warn would conflict with FIFRA. li t e Arkansas-Platte court declared that damage awards would constitute ad hoc decisions about the adequacy of federal labeling standards. In the court's view, this would hinder the accomplishment of the full purpose of section 136v(b), which was to ensure uniform labeling standards.11 The court in Arkansas-Platte also rejected the Ferebee court's theory that damage awards did not constitute a form of regulation.32 Finally, the Arkansas-Platte court suggested that Congress had occupied the field o f labeling regulation when it enacted FIFRA. The court relied on Wisconsin Public Intervenor v. Monies** to conclude that the federal government had assumed complete control over the regulation o f pesticide labeling even though FIFRA left the states with some power over the sale and use of pesticides.14 After the federal appellate court rendered its decision in Arkansas-Platte, the plaintiff petitioned the United States Supreme Court for review. The Court vacated the appellate court's judgment and remanded the case to the court for further con sideration in light of the Cipollone decision.19 On January 5, 1993, the court reaffirmed its earlier decision, although it appeared to decide the case on express preemption grounds rather than upon occupation of the field and conflict preemption.19 D. Worm v. American Cyanamld Company. The plaintiff in Worm v. Am erican C yanam id C o." alleged that a herbi cide manufactured by the defendant caused a corn crop to fail. According to the plaintiff, the EPA-approved instructions on the product failed to warn about the harmful effects of residual traces of the product on newly planted crops. The manufacturer argued that the plaintiffs claim was preempted. The court in Worm ruled that Congress did not intend to occupy the entire field o f pesticide regulation.19 However, the court concluded that damage awards under state law conflicted with FIFRA because they imposed labeling requirements "in addi tion to or different from" those imposed by the EPA." The court in W orm also rejected the theory, first proposed in Ferebee, that damage awards did not constitute a form of state regulation because such awards did not compel manufacturers to change existing labeling.40 17 II. Should FIFRA Preempt Inadequate Warning Claims? Section 136v(a) of FIFRA allows states to regulate the sale or use of ederally registered pesticides as long as they do not authorize any sales or uses that are irohibited by federal law. This suggests that Congress intended to allow some state ontrol over pesticides. However, section 136v(b) declares that no state "shall impose or :ontinue in effect any requirements for labeling or packaging in addition to or different rom those required under this subchapter.'' This language clearly preempts state tatutes or administrative regulations that impose nonidentical labeling requirements on >esticide manufacturers or sellers.41 On the other hand, section 136v(b) does not pecifically mention common-law tort actions. Accordingly, the courts must decide vhether the phrase "any requirements fo r labeling or packaging," used in section 136v(b), s broad enough to include common-law tort liability based on inadequate labeling. The legislative history of FIFRA makes it clear that Congress intended to establish federal regulatory primacy over pesticide labeling.41 However, nothing in the egislative history suggests that Congress regarded state tort law to be a form of state egulation. Nor does the actual language of section 136v(b) specifically include tort law vithin its prohibition against state regulation. Justice Blackmun, dissenting in Cipollone, irgued that the term "requirement " was ordinarily limited to a specific action mandated >r disallowed by a formal governing authority.43 Echoing Ferebee, Justice Blackmun leclared that tort liability preserved manufacturers' freedom o f choice and, therefore, lid not have the same coercive effect as statutes or administrative regulations.44 In :ontrast, Justice Stevens, writing for the majority in Cipollone, concluded that a duty to varn based on state tort law was the sort of "requirement" that was preempted by the \ct.45 The interpretation o f the cigarette labeling act was similar to the approach taken >y the courts in Papas, Arkansas-Platte, and Worm. It is entirely possible that the Supreme Court or some of the lower federal :ourts will rely on the reasoning of Justice Stevens in Cipollone and conclude that ection 136v(b) expressly preempts tort claims against pesticide manufacturers based on dlegedly inadequate warnings. However, this would be most unfortunate because Zipollone's preemption analysis ignores important policy considerations. To be sure, .ome of these policies support preemption o f state tort law claims. For example, the ;oal o f protecting trade and co m m erce is arguably advanced b y uniform labeling on >roducts that are distributed in a national market.43 The principle of deference to tgency decision making also supports a finding of preemption. Not only does the EPA tave more technical competence than lay juries, but Congress has given it the duty to ralance risks and benefits when it approves labeling for a pesticide.4' Other policies, however, militate against a finding of preemption. For :xample, federalism values support a policy o f judicial deference to traditional state nferests unless Congress has clearly directed otherwise.43 Moreover, the imposition of ort liability on manufacturers encourages them to improve product labeling and thereby iromotes public health and safety.49 Not only is increased safety desirable from the :onsumer's perspective, but it is consistent with the declared objectives o f FIFRA as veil. On the other hand, the preemption defense inhibits product safety by insulating 18 o t I CO o CD V 03 r 'I manufacturers ffom liability when they produce defective products. Finally, by denying compensation to injured consumers, the preemption defense deprives them of protec tion that would otherwise be provided by state tort law.30 Conclusion. Most consumer products are now subject to federal safety standards.3' This has led to increasing reliance on federal preemption by manufacturers as a means of avoiding tort liability to injured consumers. So far, pesticide manufacturers have been largely successful in asserting preemption as a defense in inadequate labeling cases. This is likely to continue if federal courts extend to reasoning of Cipollone to FIFRA cases. However, there is more to preemption than Cipollone and, hopefully, the courts will also take relevant policy issues into account when they decide FIFRA preemption cases in the future. ENDNOTES 1. 7 U.S.C. 136 (1988 & Supp. II 1990). 2. For a discussion of pesticide regulation under FIFRA, see Timothy J. Kuester, Comment, F IF RA as an Affirmative Defense: Pre-emption o f C om m on-Law Tort Claims o f Inadequate Labeling, 40 Kan. L. Rev. 1119, 1122-25 (1992). 3. Id., 136a(a), (c). 4. Id., 136a(c)(5)(C). 5. Id., 136(q)(l)(E). 6. Id., 136v(b). 7. Id., $ 136v(a). Political subdivisions of the state, such as cities and counties, may also regulate the sale and use of pesticides within their boundaries. See Wisconsin Public Intervenor v. Mortier, 111 S. Ct. 2476, 2482 (1991). 8. E.g., Worm v. A m erican C yanam id Co., 970 F.2d 1301 (4th Cir. 1992); ArkansasPlane A G u lf Partnership v. Van Waters A Rogers, Inc., 959 F.2d 158 (10th Cir. 1992). 9. E.g., Ferebee v. Chevron Chem. Co., 736 F.2d 1529 (D.C. Cir.), cert, denied, 469 U.S. 1062 (1984); M ontana Pole A Treating Plant v. I-F. L aucks, 775 F. Supp. 1339 (D. Mont. 1991). 10. 112 S. Ct. 2608 (1992). 19 11. U.S. Const, art. VI, cl. 2. 12. See Schneidewind v. A N R Pipeline Co., 485 U.S. 293, 300 (1988) (holding that federal Natural Gas Act preempts state statute regulating issuance of securities by natural gas pipeline companies). 13. See International Paper Co. v. Ouellette, 479 U.S. 481, 491 (1987) (holding that actions based on common-law nuisance principles were preempted by Clean Water Act). 14. See Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608, 2621-22 (1992) (ruling that . the Federal Cigarette Labeling and Advertising Act expressly preempted tort .. claims based on inadequate health warnings). 15. See, e.g., C apital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 700 (FCC cable television regulations); Fidelity Federal Savings & L o a n v. de la Cuesta, 458 U.S. 141, 170 (1982) (Federal Home Loan Bank Board regulation). 16. See, e.g., Schneidewind v. A N R Pipeline Co., 485 U.S. 293, 300 (1988) (holding that pervasive federal natural gas regulation under Natural Gas Act occupied the field). 17. See, e.g., In tem a t'l Paper Co. v. Ouellette, 479 U.S. 481, 484 (1987) (holding that state nuisance law conflicted with regulatory policies of Clean Water Act); M ichigan Canners & Freezers A s s 'n v. Agricultural Marketing & Bargaining B d., 467 U.S. 461, 478 (1984) (concluding that state regulation of asparagus growers conflicted with marketing policies of federal Agricultural Fair Practices Act). 18. See cases cited supra, at notes 8 and 9. See, e.g., Worm v. A m erican Cyanamid Co., 970 F.2d 1301, 1307 (4th Cir. 1992); K ennan v. D ow Chem. Co., 717 F. Supp. 799, 812 (M.D. Fla. 1989). 19. 736 F.2d 1529 (D.C. Cir.), cert, denied, 469 U.S. 1062 (1984). 20. Id . at 1541. Accord: M ontana Pole & Treating Plant v. I.F. L aucks, 775 F. Supp. 1339, 1345 (D. Mont. 1991); R iden v. I.C .I. Americas, Inc., 763 F. Supp. 1500, 1507 (W.D. Mo. 1991). 21. Id. at 1543. 22. 926 F.2d 1019 (11th Cir. 1991), vacated a n d rem anded sub nom . Papas v. Zoecon Corp., 112 S. Ct. 3020 (1992). 23. Id . at 1022-23. 24. Id . at 1025. 25. Id. at 1025-26. 20 03 CO - e J '0 It 26. Id . at 1026. Accord: Worm v. A m erican C yanam id Co., 970 F.2d 1301, 1307 (4th Cir. 1992); Arkansas-Platte & G u lf Partnership v. Van Waters <4 Rogers, Inc., 959 F.2d 158,162-63 (10th Cir. 1992). 27. Id. 28. See Papas v. Z oecon Corp., 112 S. Ct. 3020 (1992). 29. Arkansas-Platte & G u lf Partnership v. Van Waters <4 Rogers, Inc., 959 F.2d 158 (10th Cir. 1992). 30. See A rkansas Platte, 748 F. Supp. 1474, 1482 (D. Colo. 1990). 31. Arkansas-Platte, 959 F.2d at 162. 32. Id. at 162-63. 33. I l l Sup. Q . 2476 (1991). 34. Arkansas-Platte, 959 F.2d at 163. 35. Arkansas-Platte, 113 S. Ct. 314 (1992). 36. Arkansas-Platte, 1993 U.S. App. Lexis 52. 37. 970 F.2d 1301 (4th Cir. 1992). 38. Id. at 1305-06. 39. Id. at 1306-07. 40. Id. at 1307. 41. See John G. Gleeson <4 Larry W. Davidson, Federal Pre-em ption as a Defense in Pesticide Poisoning Litigation, 56 Def. Couns. J. 318, 320 (1989). 42. See H.R. Rep. No. 92-511, 92nd Cong., 1st Sess. 16 (1971). 43. See Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608, 2627 (1992) (Blackmun, J., dissenting). 44. Id. 45. Id . at 2621-22. 46. See Maty l - Howarth, C om m ent, Preemption a n d Punitive D amages: The Conflict Continues Under F IF R A , 136 U. Pa. L Rev. 1301, 1324-25 (1988). 21 47. See Papas v. Upjohn Co., 926 F.2d 1019, 1022-23 (11th Cir. 1991), vacated and rem anded sub nom . Papas v. Zoecon Corp., 112 S. Ct. 3020 (1992). 48. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (declaring that historic police powers of the states should not be superseded unless it is the clear and manifest purpose of Congress to do so). 49. See Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1541-42 (D.C. Cir. 1984). 50. See Silkw ood v. Kerr-McGee Corp., 464 U.S. 238, 251 (1984). 51. See Barbara L . Atwell, Products Liability and Preem ption: A Judicial Framework, 39 Buffalo L. Rev. 181, 181 (1991). MARK YOUR CALENDAR 1993 April 1-2 ABA National Institute: Emerging Issues in Motor Vehicle Product Liability Litigation, Phoenix, AZ April 1-2 DRI Seminar: Medical Malpractice, San Diego, CA April 2-3 ATLA Seminar: Employment, Disability, and Compensation, Washington, D.C. April 15-16 April 22-23 DRI Seminar: ABA National Institute: Damages, Las Vegas, NV Section 1983, Dallas, TX April 29-May 1 ATLA Seminar: Liability, Causation and Damages, New Orleans, LA April 30-May 1 ABA National Institute: Health Care Fraud, Santa Monica, CA May 6-7 DRI Seminar: Sixteenth Employment Law, Chicago, IL May 6-7 ' ABA National Institute: Corporate Litigation, Coronado, CA May 13-14 ABA National Institute: Law of Suretyship, New York, NY May 13-14 DRI Seminar: Drug and Medical Device Litigation, San Francisco, CA 22 CD CD 2 , < May 20-21 May 20-22 May 21-22 DRI Seminar: ABA National Institute: ATLA Seminar: Chemical Exposure, New York, NY Medical Malpractice, New Orleans, LA Child Sexual Abuse in the 1990's, Las Vegas, NV For more Information on any of the above, please call: TIPS at the ABA (312) 988-5672 ABA National Institutes (312) 988-6200 DRI (312) 944-0575 ATLA (800) 622-1791 NATIONAL INSTITUTE: EMERGING ISSUES IN MOTOR VEHICLE PRODUCT LIABILITY LITIGATION CHICAGO - An advanced-level program for trial lawyers, in-house attorneys, and other practitioners with a strong interest in motor vehicle product liability litigation will address trial techniques and strategies for preparing and presenting vehicle cases April 1-2, 1993, at The Arizona Biltmore Hotel in Phoenix, Ariz. "Emerging Issues in Motor Vehicle Product Liability Litigation" is a National Institute co-sponsored by the ABA's Tort and Insurance Practice Section's Automobile Law Committee, the Products, General Liability & Consumer Law Committee and the Division for Professional Education. The planning committee and faculty include pre-eminent trial lawyers on both the plaintiff and defense sides of motor vehicle product liability litigation, and corporate counsel for automobile manufacturers including Nissan North America, Inc., and Ford Motor Company. "While a lot of attention is now being placed on the obligation of the manufacturer to provide safety to occupants in serious collisions, the industry still is dealing with some of the most serious types of injuries in car accidents," says Dennis Cameron, program co-chair. "This program reaches beyond the typical broad discussion of product liability by targeting specific topics, and then goes one step beyond that by addressing the most current topics," he adds. A highlight of the program will be "Expert Proof - Proving the Mechanism of Injury in Passive Restraint/Air Bag Cases," in which Murray MacKay, 23 . 404 PLEMENT Blackmar t .erre, 342 U.S. 512, 514-15, 72 S.Ct. 410, 411-12, 96 L.Ed. 534 (1952). Congress has not authorized the Treasury Department or any of its divisions or bu reaus to be sued. Henry Vlielstra Plas tering & Acoustical Co. v. I.R.S., 401 F.Supp. 829, 832 (W.D.Mich.1975). Relief sought against agents Raby and Moore is actually relief sought against the United States. Warner v. Reynolds, 54 A.F.T.R. 2d 5698 (S.D.lnd.1984) [Available on WESTLAW, 1984 WL 3079], C. Richard O. FITZGERALD and Phyllis Fitzgerald, Plaintiffs, MALLINCKRODT, INC., a Delaware Corporation, Defendant. Civ. A. No. 86-2598. United States District Court, E.D. Michigan, S.D. Dec. 22, 1987. [3] The allegations of the complaint are not sufficient to state a claim for quashing the summonses. Plaintiffs must present specific facts from which the court could infer the possibility of wrongful conduct by the government. Jungles v. U.S., 634 F.Supp. 585, 586 (N.D.I11.1986). Plaintiffs first say that the yearly statements from each of the institutions were submitted to the IRS with their 1985 taxes. According to the government's motion, the IRS sum monsed all records for the 1985 tax year, not just a yearly statement. The IRS does not already have possession of the records requested. Greenskeeper who suffered mercury poisoning as result of his exposure to inor ganic mercury-based fungicide sued manu facturer for negligent labeling and failure to warn. On manufacturer's motion for summary judgment, the District Court, Suhrhcinrich, J., held that; (1) manufactur er had not waived affirmative defense of preemption by failing to raise it until pre trial order, and (2) suit was preempted by Federal Insecticide, Fungicide, and Rodenticide Act. Motion granted. [4] Plaintiffs' second argument, that the records are of no interest to the IRS as they reflect plaintiffs' personal way of liv ing is also without merit. There is no right of "privacy" in summoned bank records. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); McTaggart v. U.S., 570 F.Supp. 547, 550 (E.D. Mich. 1983). Although the United States usually moves to enforce a summons when it is challenged, see, eg., Morris v. United States, 616 F.Supp. 246 (E.D.Mich.1985); McTaggart, 570 F.Supp. 547, it is entitled to pursue a dismissal of the petition and if successful, rely on third-party compliance with the summons. Jungles, supra. SO ORDERED. 1. Federal Civil Procedure =751 Affirmative defense is typically waived if not raised in defendant's responsive pleading, but will be preserved when raised in pretrial order. Fed.Rules Civ.Proc.Rule 8(c), 28 U.S.C.A. 2. Agriculture =9.13 States ^>18.65 State tort claims against manufacturer of inorganic mercury-based fupgicideJiased on negligent labeling ancrfailure to wajh were preempted by Fede?31 Insecticide, Fungicide, and Rodenticide Act. Federal Insecticide, Fungicide, and Rodenticide Act, 2 et seq., as amended, 7 U.S.C.A. 136 et seq. 0 1 CO o CO . is I[V HUKBIt sSvVS-T*1TH> A rnold M. G ordon, S o u th fie ld , Mich., fo r plaintiffs. FITZGERALD v. MALLINCKRODT, INC. Cite as 681 F.Supp. 404 (EJD.Mlch. 1987) '5 Ronald A. Glaser, Detroit, Mich., for de that had the warning labels been prepared fendant. differently he would not have been injured MEMORANDUM OPINION AND ORDER SUHRHEINRICH, District Judge. in the same manner. Defendant has moved for summary judg ment, claiming the Federal Insecticide, Fungicide and.Rodenticide Act of 1982 (FI- This matter is before the Court on de FRA), 7 U.S.C. ;136 e i :$eq., -preempts fendant's motion for summary judgment. plaintiffs' state common law cause of ac Pursuant to Local Rule 17(1 )(2), the Court tion. Before reaching the merits of de shall decide this motion without oral argu fendant's motion, the Court must deter ment. mine whether defendant has waived its de This suit arises out of a toxic exposure to defendant's product, Calo-Clor, suffered by plaintiff. On November 20, 1984, Richard Fitzgerald was working as a greenskeeper at Salem Hills Golf Course, a position he held for eighteen years. On this date, plaintiff was preparing to spray Calo-Clor fense of preemption by failing to raise it in the first responsive pleading.1 Defendant raised several affirmative defenses in its answer, including failure to state a claim upon which relief may be granted and ab sence of proximate cause. However, as suming arguendo that preemption is an on the greens, tees, and fairways of the affirmative defense, defendant did not golf course. Plaintiff's supervisor instruct raise preemption until the pretrial order. ed plaintiff as to the type and amount In the Joint Pretrial Order dated November of chemicals to be used and plaintiff 'as 9, 1987, defendant clearly indicated its in responsible for mixing the proper quanti tention to assert federal preemption as a ties. While attempting to pour Calo-Clor defense. from a twenty-five pound drum onto a mea suring scale, plaintiff, wearing a snowmo [1] Typically an affirmative defense is bile suit, respirator, goggles, and rubber waived if not raised in defendant's respon gloves, spilled some of the chemical on his sive pleading. Fed.R.Civ.P. 8(c); Satchell clothes and created a large cloud of dust. v. Dilworth, 745 F.2d 781, 784 (2d Cir. Plaintiff then brushed off his clothes, 1984). However, when an issue is raised in washed his hands and face, and returned to a pretrial order, the affirmative defense work spraying the greens. Later that eve will be preserved. See, e.g., Expertise, Inc. ning, plaintiff began to feel sick. His wife v. Aetna Finance Co., 810 F.2d 968, 973 took him to the hospital where it was deter (10th Cir.1987) (collecting cases); see also, mined that plaintiff suffered mercury poi Jenkins v. Carruth, 583 F.Supp. 613, 615 soning due to his exposure to Calo-Clor. (E.D.Tenn.1982), affd without opinion, Calo-Clor is an inorganic mercury based fungicide manufactured by defendant for use in erradicating snow mold from golf course greens, tees, and fairways. In mix ing Calo-Clor, plaintiff removed the chemi cal from a twenty-five pound drum. Af fixed to this Calo-Clor drum was a warning 734 F.2d 14 (6 th Cir.1984) (finding statute of limitations defense not waiver when raised in pretrial order, but not in answer). Because defendant did raise the defense in the joint pretrial order, the Court finds that plaintiffs are not prejudiced by the failure to raise the defense in defendant's answer. label approved by the Environmental Pro Accordingly, the Court finds the affirma tection Agency (EPA). Plaintiff admits tive defense of preemption is not waived knowledge of the warning label's existence and the Court shall consider the merits of but denies reading it. Plaintiff contends defendant's federal preemption defense. I. Plaintiffs maintain, and defendant does not dispute, that preemption constitutes an affirma tive defense which must be raised in accordance with Fed P.Ffv P. a(c>. While the Court is not convinced preemption qualifies as an affirma- live defense, a determination of this issue is unnecessary; for the purposes of this motion, the Court shall assume federal preemption is an affirmative defense. 406 681 FEDERAL SUPPLEMENT In tl. .nina) case of Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210-11, 6 L.Ed. 23 (1824), the Supreme Court ruled that the Supremacy Clause, U.S. Const. Art. VI gives Congress authority to legislate in preemption of state law. The Supremacy Clause of Art VI of the Constitution provides Congress with the power to pre-empt state law. Pre-emp tion occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, Jones v. Rath Packing Co. 430 US 519, 51 L Ed 2d 604, 97 S Ct 1305 (1977), when there is out right or actual conflict between federal and stale law, e.g.. Free v Bland, 369 US 663, 8 L Ed 2d 180, 82 S Ct 1089 (1962), where compliance with both federal and state law is in effect physically impossi ble, Florida Lime & Avocado Growers, Inc. v Paul, 373 US 132, 10 L Ed 2d 1082, 83, S Ct 1210 (1963), where there is implicit in federal law a barrier to state regulation, Shaw v. Delta Air Lines, Inc. 463 US 85, 77 L Ed 2d 490, 103 S Ct 2890 (1983), where Congress has legislat ed comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement feder al law, Rice v. Sante Fe Elevator Corp. 331 US 218, 91 L Ed 1447, 67 S Ct 1146 (1947), or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Con gress. Hines v. Davidowitz, 312 US 52, 85 L Ed 581, 61 S Ct 399 (1941). Pre emption may result not only from action taken by Congress itself; a federal agen cy acting within the scope of its congres- sionally delegated authority may preempt state regulation. Fidelity Fed eral Savings & Loan Assn. v. De la Cuesta, 458 US 141, 73 L Ed 2d 664, 102 S Ct 3014 (1982); Capital Cities Cable, Inc. v. Crisp, 467 US 691, 81 L Ed 2d 580, 104 S Ct 2694 (1984). Louisiana Public Service Commission v. Federal Communications Commission, 476 U.S. 355, 368-69, 106 S.Ct. 1890, 189899, 90 L.Ed.2d 369, 381-82 (1986). It is defendant's contention that FIFRA preempts state law and, therefore, preempts all state tort remedies. "The critical question in any preemption analysis is always whether Congress intended that federal regulation supersede state law." Id. at 382. As Judge Brown succinctly stated, "the gist of preemption is whether Congress (expressly) did or (impliedly) meant to displace state law or state law concepts in enacting the federal law." Palmer v. Liggett Group, Inc., 825 F.2d 620, 625-26 (1st Cir.1987). Pursuant to FIFRA, Congress has enact ed a comprehensive system for the regis tration and labeling of pesticides. Both parties agree that the EPA under FIFRA regulates the sale and labeling of CaloClor. FIFRA directs the EPA to register a pesticide only if the EPA determines "it will perform its intended function without unreasonable adverse effects on the envi ronment." 7 U.S.C. 136a(c)(5)(C). When a pesticide is registered, the manufacturer must submit its proposed label to the EPA for approval; any changes in the label must also be approved by the EPA. While typically divining whether Congress intend ed to preempt state law is a difficult, hap hazard process, in the instant statute. Con gress has expressly stated its intent to preempt any state labeling or packaging requirements different from or additional to those mandated by FIFRA. Section 136v(b) provides; "Such state shall not im pose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter." [2] Although the language of the stat ute appears to clearly indicate Congression al intent to preempt state labeling regula tions, one court has found to the contrary. In Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C.Cir.1984), cert, denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1985), the Court found that the federal statute was regulatory while Maryland tort remedies were compensatory. Even though the Ferebee court recognized that "FIFRA does not allow states directly to impose additional labeling requirements," the court allowed stale tort remedies. Id. at 1541. The court reasoned; FITZGERALD v. MALLINCKRODT, INC. 407 Cite a* 631 F.Supp. 404 (ED.Mich. 1987) The verdict itself [compensating plaintiff for damages for negligently employing for injuries resulting from a defective it, it is unthinkable that any manufac label] does not command Chevron to al turer would not immediately take steps ter its label--the verdict merely tells to minimize its exposure to continued Chevron that, if it chooses to continue liability. The most obvious change it selling paraquat in Maryland, it may can take, of course, is to change its have to compensate for some of the re label. Effecting such a change in the sulting injuries. That may in some sense manufacturer's behavior and imposing impose a burden on the sale of paraquat such additional warning requirements is in Maryland, but it is not equivalent to a direct regulatory command that Chevron change its label. Chevron can comply with both federal and state law by con tinuing to use the EPA-approved label and by simultaneously paying damages to successful tort plaintiffs such as Mr. Ferebee. Id. This reasoning was rejected in Palmer, a case involving cigarette warnings: The preemption clause of the Act ex pressly prohibits "state law" not merely "statutory law" from imposing any "re quirement or prohibition" different from the Act's warning label. 15 U.S.C. 1334. If a manufacturer's warning that complies with the Act is found inadequate under a stale tort theory, the damages awarded and verdict ren dered against it can be viewed as state regulation: the decision effectively compels the manufacturer to alter its warning to conform to different state law requirements as "promulgated" by a jury's findings___ This challenge to the federal warning label's sufficiency-- and the confusion it would engender-- surely contravenes the Act's policy of uniform labeling. The District Court held that an award of damages "would have only an indirect effect on defendant's labeling and adver tising practices." 633 F.Supp. at 1177. The Palmers disingenuously maintain that any monetary damages awarded would not compel a manufacturer to change its label for, after all, "the choice of how to react is left to the manufactur er." This "choice of reaction" seems akin to the free choice of coming up for the very action preempted by 1334 of the Act. Indeed, it arrogates to a single jury the regulatory power explicitly de nied to all fifty states' legislative bod ies. 825 F.2d at 627-28 (emphasis added). While the Court has carefully considered the decision of the District of Columbia Circuit, this Court is not required to follow the decision of another circuit. United States v. Finazzo, 429 F.Supp. 803, 807 (E.D.Mich.1977); see also Colby v. J.C. Penney Co., Inc., 811 F.2d 1119, 1123-24 (7th Cir.1987); Generali v. D'Amico, 766 F.2d 485, 489 (11th Cir.1985). After care ful consideration of the conflicting analyses of Ferebee and Palmer, the Court finds the reasoning of Palmer persuasive. Where the federal government has preempted any state regulation, there can be no recovery in tort. Allowing recovery under state tort law where Congress has preempted state law would effectively authorize the state to do through the back door exactly what it cannot through the front FIFRA express ly provides that no state may impose "any requirement for labeling or packaging in addition to or different from those re quired under this Act." 7 U.S.C. 136v(b) (emphasis added). As the Palmer court noted, any state law tort recovery based on a failure to warn theory, would abrogate Congress' intent to provide uniform regula tions governing the labeling of pesticides. See also Hurley v. Lederle Laboratories, 651 F.Supp. 993, 999-1000 (E.D.Tex.1986) (finding the Federal Pure Food, Drug and Cosmetic Act's regulation of labeling preempts any state tort claims based on improper warning). air after being underwater. Once a jury Thus, where plaintiffs' claims all involve has found a label inadequate under state law claims based on negligent label state law, and the manufacturer liable ing and failure to ware and where the 408 681 FEDERAL SUPPLEMENT Court has , j state regulation in this area preempted by federal law, the Court shall grant defendant's motion for summa ry judgment. protecting FDIC from unwritten agree ments that otherwise might be asserted to diminish or defeat its rights in assets ac quired from failed bank. Accordingly, Summary judgment granted. IT IS HEREBY ORDERED that defend ant's motion for summary judgment is \ GRANTED. 1. Banks and Banking =505 Misrepresentations allegedly made to limited partner by promoters of limited partnership were "agreements" for pur poses of Federal Deposit Insurance Act provision protecting FDIC from unwritten agreements that otherwise might be assert ed to diminish or defeat its rights in assets acquired from failed bank. Federal Depos FEDERAL DEPOSIT INSURANCE COR it Insurance Act, 2[13](e), as amended, 12 PORATION, in its corporate capacity, a U.S.C.A. 1823(e). corporate agency of the United States government, Plaintiff, v. Ruth DIXON, Defendant and Third-Party Plaintiff, v. See publication Words and Phrases for other judicial constructions and definitions. 2. Banks and Banking e=505 FDIC had "right, title or interest" in assumption agreement signed by limited partner, binding limited partner to bank for SOUTHWESTERN DRILLING, an Okla homa general partnership, Southwest ern Drilling Management Company, an Oklahoma corporation, Southwestern Drilling Company, an Oklahoma corpo ration, Bill Schnes, John Yoeckei, and Roger Bernstein, Third-Party Defend ants. No. 86-CV-10196-BC. United States District Court, E.D. Michigan, N.D. ten percent of loan to limited partnership, for purposes of determining applicability of Federal Deposit Insurance Act provision protecting FDIC from unwritten agree ments that otherwise might be asserted to diminish or defeat its rights in assets ac quired from failed bank, notwithstanding alleged avoidability of assumption agree ment as result of fraud in inducement by promoters of limited partnership. Federal Deposit Insurance Act, 2[13](e), as amended, 12 U.S.C.A. 1823(e). Jan. 21, 1988. Federal Deposit Insurance Corpora tion, in its corporate capacity, brought ac tion against limited partner on assumption o agreement binding limited partner to bank for. ten percent of loan to limited partner 0 ship. On motions for summary judgment, the District Court, Churchill, J., held that FDIC was protected from limited partner's claim that misrepresentations of promoters t of limited partnership fraudulently induced 1 her to bind herself to loan obligation by o Federal Deposit Insurance Act provision 3. Banks and Banking ^ 5 0 3 Assumption agreement signed by limit ed partner, binding limited partner to bank for ten percent of loan to limited partner ship, was "asset" of bank, subject to Feder al Deposit Insurance Act provision protect ing FDIC from unwritten agreements that otherwise might be asserted to diminish or defeat its rights in assets acquired from failed bank. Federal Deposit Insurance Act, 2[13](e), as amended, 12 U.S.C.A. 1823(e). See publication Words and Phrases for other judicial constructions and definitions. FEDERAL DEPOSIT INS. CORP. v. DIXON Cite u 681 F.Supp. 40S (E-D.Mlch. 1968) ) 4. Banks and Banking 0=505 lan, Armour, SL John, Wilcox, Goodin & FDIC "acquired" assumption agree Schlotz, San Francisco, Cal., for Bernstein. ment assigned by limited partner, binding limited partner to bank for ten percent of loan to limited partnership, "by purchase," Marvin D. Morgenstein, Morgenstein, Ladd & Jubilerer, San Francisco, Cal., for Yoeckel. for purposes of Federal Deposit Insurance Act provision protecting FDIC from un written agreements that otherwise might be asserted to diminish or defeat its rights Craig H. Casebeer and Janet L. Cullum, Cooley, Godward, Castro, Huddleson & Ta tum, Palo Alto, Cal., for RobL Gee. in assets acquired from failed bank. Fed eral Deposit Insurance Act, 2[13](e), as MEMORANDUM OPINION amended, 12 U.S.C.A. 1823(e). CHURCHILL, District Judge. 5. Federal Civil Procedure 0=2532 Limited partner who signed assump tion agreement binding herself to bank for ten percent of loan to limited partnership was not entitled to further discovery, be fore motions for summary judgment would be ruled upon in connection with FDIC's action on assumption agreement, to deter mine whether assumption agreement was within statutory exception to Federal De posit Insurance Act provision protecting the FDIC from unwritten agreements that otherwise might be asserted to diminish or defeat its rights in assets acquired from failed bank, given implausibility of limited partner's contention that there might be documentation to support exception. Fed eral Deposit Insurance Act, 2[13](e), as amended, 12 U.S.C.A. 1823(e). William J. Reifman, Barbara Bertok and Judi Katz, Mayer, Brown & Platt, Chicago, 111., and Craig W. Horn, Braun, Kendrick, Finkbeiner, Schafer & Murphy, Saginaw, Mich., for FDIC. Alan R. Miller and Joseph F. Yamin, Alan R. Miller, P.C., Birmingham, Mich., for Dixon. David Paynter and Richard W. Thomp son, Ericksen, Arbuthnot, Walsh, Paynter & Brown, Inc., San Francisco, Cal., for Southwestern Drilling, Southwestern Drill ing Management Co. and Southwestern Drilling Co. Mark R. Lezotte and Mark T. Nelson, Butzel, Long, Gust, Klein & Van Zile, De troit, Mich., and Robert A. Goodin, Diane Wear Larrabee and Elizabeth M. McQuil- Pending motions for summary judgment require the Court to examine the parame ters of 12 U.S.C. 1823(e). Specifically, the Court must determine whether a limit ed partner who signed an assumption agreement is liable to the Federal Deposit Insurance Corporation ("FDIC") under the assumption agreement's terms even if the limited partnership promoters defrauded the limited partner. The Court finds that 12 U.S.C. 1823(e) applies in this situation. I. THE FACTUAL SETTING In 1981, Defendant Ruth Dixon became a limited partner in the limited partnership of Southwestern Drilling Rig No. 5 ("SWDR5"). SWDR5, an Oklahoma limit ed partnership, was formed in 1981 for the purpose of acquiring and operating an oil and gas drilling rig as a drilling contractor. Defendant Dixon obtained a 10 percent in terest in SWDR5 by contributing $65,000 in cash and executing an assumption agree ment binding herself to Penn Square Bank, N.A. ("Penn Square") for 10 percent of a $4,545,000 loan to the SWDR5 limited part nership. SWDR5 executed a note obligat ing the limited partnership to pay back the loan in 60 installments, but the assumption agreement signed by Defendant Dixon ex pressly states that "as between the under signed [Dixon] and the Partnership [SWDR5], the obligation of the under signed with respect to the Liabilities [on the $4.545 million loan] shall be primary and the obligation of the Partnership shall be as guarantor." After obtaining the $4.545 million loan from Penn Square, SWDR5 purchased a drilling rig and subsequently leased the rig \ !! % f* ..lIi t] i O O X3 568 692 FEDERAL SUPPLEMENT VILLARI v. TERMINIX INTERN., INC. 569 [2] Plaintiffs next take issue with the plaintiffs on count 1 of plaintiffs' com- effectiveness of Budget's rejection of unin plaint. , -< i sured motorist coverage with regard to plaintiff. Under established Florida law, a lessor's rejection of uninsured motorist cov ORDER -.l) erage is effective as to the lessee even if AND NOW, this 5th day of August, the lessee is unaware of it. E.g., Damaby 1988, it is hereby ordered that defendant v. Greenstein Trucking Co., 425 So.2d 656, Liberty Mutual Insurance Company's mo 658 (Fla.Dist.Ct.App. 1983); Guardado v. tion for summary judgment on count I of Greyhound Rent-A-Car, 340 So.2d 510, 511-12 (Fla.Dist.Ct.App.1977). See also Kohly v. Royal Indent. Co., 190 So.2d 819, 820 (Fla.Dist.Ct.App.1966), cert, denied, plaintiffs' complaint is granted. Summary judgment is entered in favor of defendant Liberty Mutual and against plaintiffs on count I of plaintiffs' complaint. 200 So.2d 813 (Fla.1967). Plaintiffs argue, It is further ordered that, summary judg however, that McGlinchey is an "insured" ment having been entered against plaintiffs under Liberty Mutual's policy by virtue of on counts I and II of their complaint, plain his rental agreement with Budget , and, tiffs' remaining claims against defendant therefore, should have been given the op Hartford Accident and Indemnity Co. are ' tion of accepting or rejecting his own unin hereby referred to the court's arbitration program. sured motorist coverage. I cannot accept plaintiffs' argument. First, while all rent Clle m 692 F.Supp. 566 (E-D.Pa. 1988) [ifa/and Rodenticide Act's prohibition of state c_e_r_n_e_d i_n_c_reased risk of future injury; tjsjji labeling and packaging requirements did homeowners claimed to have already sus "not preempt homeowners' state law tort tained health-related injuries. -,vaction against exterminator based on exter minator's alleged failure to warn of dan gers associated with termiticides used in 5. Agriculture =9.13 Evidence that exterminator had stopped using various termiticides was evi home. dence o f subsequent remedial effort by ex Motions granted in part and denied in terminator and was inadmissible in home- owners' action against exterminator to show termiticides used in home were dan Evidence =150 JSjSV Animal studies used to predict carcinoPfs);'genicity of pesticides in humans were not novel scientific evidence and were admissisSKf hie in homeowners' action against extermi- gerous. Fed.Rules Evid.Rule 407, 28 U.S. C.A. 6. Agriculture =9.13. Evidence that various termiticides had been withdrawn from United States market r nator based on claim that exterminator con was inadmissible in homeowners' action taminated home with termiticides; al- against exterminator which had allegedly though some tests and experiments did not contaminated home with termiticides to 1 support finding in homeowners' studies, an show that the termiticides were dangerous. imal studies were routinely relied upon by Fed.Rules Evid.Rules 401, 403, 28 U.S.C.A. ers are "insured" under Budget's insurance | h7nhbssh) scientific community in assessing carcino- 7. Agriculture =9.13 coverage once they sign the rental agree genie effects of chemicals on humans. Exterminator that applied termiticides ment, they are not the "named insured," as that word is used in the technical sense, under the policy with Liberty Mutual. The Fed.Rules Evid.Rule 702, 28 U.S.C.A. 0 2. Evidence =557 to home was a "seller" within meaning of Federal Insecticide, Fungicide and Rodenti Sufficient portion of scientific commu- cide Act and could be held strictly liable for "named insured" on the policy is Budget. The decision of a named insured, such as Budget, to accept or reject uninsured mo torist coverage, moreover, is binding on any additional insureds under the policy. Leonard VILLARI and Annette Villarl, individually and on Behalf of their mi nor children Leonard, Marnie, Heidi, Heather, Joshua and Annette Villari nity relied on animal studies in assessing health risk of various chemicals to humans yiV to make expert testimony on animal study results admissible in homeowners' action against exterminator who allegedly con- its alleged failure to warn of dangers asso ciated with its termiticides. Federal Insec ticide, Fungicide, and Rodenticide Act, 2, 2(e)(1), as amended, 7 U.S.C.A. 136, 136(e)(1). Whitten v. Progressive Casualty Ins. Co., v. Sggfj;;- taminated their homes with termiticides; See publication Words and Phrases 410 So.2d 501, 504 (Fla.1982). Further more, even if plaintiff was somehow as sumed to be a "named insured" under the TERMINIX INTERNATIONAL, INC. Civ. A. No. 85-1363. numerous United States agencies and scijtef,-.' entific organizations routinely relied on ani*85?. mal studies assessing risks to humans. for other judicial constructions and definitions. 8. Agriculture =9.13 Liberty Mutual policy, the statute provides United States District Court,1 Fed.Rules Evid.Rule 703, 28 U.S.C.A. States =18.65 that any named insured may reject unin sured motorist coverage for all insureds, named or additional. Id. (quoting Conti nental Ins. Co. v. Roth, 388 So.2d 617 (Fla.Dist.Ct.App.1980)). Second, as attrac tive as it might be, plaintiffs' suggestion that all lessees be free to choose their own coverage is contrary to Florida law which allows a lessor, as the named insured of an E.D. Pennsylvania. Aug. 8, 1988. Homeowners brought action against exterminator, alleging that exterminator contaminated their home with termiticides. On exterminator's motion to exclude vari ous evidence, the District Court, Louis H. 3. Evidence =150 Probative value of results of animal studies concerning effects of pesticides suf ficiently outweighed prejudicial effect for results to be admissible in homeowners' action against exterminator who allegedly contaminated home with termiticides. Fed. ; Rules Evid.Rule 403, 28 U.S.C.A. Federal Insecticide, Fungicide, and Ro denticide Act's prohibition of state labeling and packaging requirements did not preempt homeowners' state law tort action against exterminator based on extermina tor's alleged failure to warn of dangers associated with termiticides used in home. Federal Insecticide, Fungicide, and Roden ticide Act, 24, as amended, 7 U.S.C.A. insurance policy, to make a valid rejection Poliak, J., held that: (1) results of animal 4- Evidence =528(2) I36v. which binds a lessee. The Florida courts studies used to predict carcinogenicity of ' Expert testimony relating to toxicity of and legislature have not accepted plaintiffs' pesticides in humans were admissible; (2) suggestion and, inasmuch as I am bound evidence that exterminator no longer used termiticides to which homeowners were exposed and to homeowners' risk of future Mitchell S. Pinsley, Philadelphia, Pa for by Florida law, I cannot accept it either. certain termiticides was evidence of subse MlSummary judgment will, therefore, be en quent remedial effort and was not admissi few; illness as result of their exposure was not defendant. inadmissible in homeowners' action against Stanley R. Scheiner, David F. Simon tered in favor of Liberty Mutual against ble; and (3) Federal Insecticide, Fungicide, exterminator on ground that testimony con- Philadelphia, Pa., for plaintiffs. m w s .> ; ii ,.'k e U6W. . oc c, m iS I ds ;ii! 3(8 ii {! iSl: I.!:!'! T>i X St i i iO 'i t 6 7 692 FEDERAL SUPPLEMENT MEMORANDUM : LOUIS H. POLLAK, District Judge. This is a diversity action in which plain tiffs, the Villari family, allege that defend ant pest control corporation, Terminix Inc. ("Terminix"), contaminated their home with termiticides. The defendants have sub mitted several motions in limine relating to the admissibility of certain evidence. This Memorandum addresses each of these mo tions. 7. Motion to Exclude Certain Animal Experiments from Evidence on the Is: sue of the Human Carcinogenicity of Aldrin, Dieldrin, Chlordane & Heptachlor In the first motion, the defendant seeks to exclude from evidence certain studies, including animal studies, involving defend ant's termiticides. Among the studies the defendant seeks to exclude are a recent report by the United States Environmental Protection Agency, entitled "Chlordane, Heptachlor, Aldrin and Dieldrin, Technical Support Document," and a report of the National Academy of Sciences, entitled "An Assessment of the Health Risks of Seven Pesticides Used for Termite Control." The plaintiffs intend to introduce the studies to show that defendant's termiticides are probable human carcinogens. The plain tiffs plan to call two expert witnesses whose testimony at trial will be based, among other things, on these reports. The defendant argues that the studies constitute "novel scientific evidence" and therefore are subject to the test of admissi bility set forth in United States v. Down ing, 753 F.2d 1224, 1237-41 (3d Cir.1985). In Downing, Judge Becker outlined the Third Circuit standard for the admissibility of scientific evidence pursuant to Fed.R. Evid. 702, which governs testimony by ex perts. Alternatively, the defendant main tains that if the studies are not viewed as novel scientific evidence, they nonetheless should be excluded because their probative value is outweighed by their potential prej udice, Fed.R.Evid. 403, and they do not provide a reliable foundation upon which the plaintiffs' experts could base their opinions, as required by Fed.R.Evid. 703. .. ,j A. Defendant's Claim that the Studies are Novel Scientific Evidence [1] In a detailed memorandum, the de fendant challenges the validity of using animal studies to predict the carcinogenici ty of pesticides in humans. In the defend ant's view, such studies have disputed val-' ue in isolating the effects of individual substances, see Defendant's Memorandum in Support of Motion to Exclude Certain Animal Experiments from Evidence, at 2631 & Appendix "A" (chronicling the diffi culties of carcinogenic research with mice),in distinguishing between cancerous and non-cancerous changes in animal subjects, see id., at 31-33, and in relating their find ings to human carcinogenicity, see id., at 34-63. Because there is wide disagree^ ment concerning the reliability of particular findings of these studies, the defendant concludes, the evidence must be regarded as novel scientific evidence, and the tech niques on which it is based should be re viewed for their soundness. In making this argument, the defendant confuses disagreements about particular results with disagreements about the pro cesses that generate those results. Only the latter set of disagreements concerns the admissibility of scientific evidence; the former relates to the weight such evidence should be accorded. In Downing, the court declared that "[ejvidence that derives from principles and techniques of uncontro verted validity is, of course, readily admis sible." 753 F.2d at 1232 (subject to other restrictions not relevant to this case). While it may be true that the defendant can offer tests and experiments that do not support the findings of plaintiffs' experts, the defendant cannot deny that animal studies are routinely relied upon by the scientific community in assessing the car cinogenic effects of chemicals on humanS. Even the defendant's own expert acknowl edges that animal experiment studies are built on "prudent presumptions," although he concludes that they should not be admit ted. See Letter of Dr. Gori, Defendant's Memorandum in Support of Motion to Ex: VILLARI v. TERMINIX INTERN., INC. 571 MM CIIHU692 F S u p p . 56S (E.D.Pk- 19SB) ' "dude Certain Animal Experiments from 1983), rev'd on other grounds sub nom., Evidence, Exhibit "A", at 6. Matsushita Electrical Industrial Co., Ltd. < It is worthy of mention that counsel for v. Zenith Radio Corp., 475 U.S. 574, 106 ' ,e defendant does not make any reference S.Ct. 1348, 89 L.Ed.2d 538 (1986). 'pt n his seventy-eight page Memorandum to Both parties have submitted documenta judge Stern's letter opinion in Boltuch v. tion concerning the reliability of the plain fei; Terniinix, Civil Action No. 84-3235 (D.N.J. tiffs' studies. Defendant's experts cast "Hi P fet April 16, 1986), which squarely addressed 5^ the issue of whether the studies in this doubt on the findings of the studies,' sug gesting that the carcinogenicity of chemi S ' case constitute novel scientific evidence. cals in animals provides weak inferential $l?t' Judge Stern ruled that "both the NAS re- support for the dangerousness of those port and the animal studies derive from chemicals to humans. In contrast, the ~ well-established scientific principles and plaintiffs refer to numerous U.S. agencies p-Jp techniques, and neither is based on `novel and scientific organizations that routinely &v ?' n f seientifie expertise' within the rely on animal studies in assessing risks to meaning of United States v. Downing." humans. I find, by the weight of the plain Id. at 11. Given that lead counsel for tiffs' submissions, that a substantial por Terminix in the case at bar was one of tion of the scientific community relies on Terminix's attorneys in Boltuch, it is hard animal studies of this type in assessing to see how the non-reference to Boltuch health risks to humans. That some mem could have been inadvertent. bers of the scientific community hold dif fering views is not enough to exclude evi B. Defendant's Claim that the Studies dence under Fed.R.Evid. 703.' Should Be Excluded Under Fed.R. Evid. 703 or Fed.R.Evid. 403 (1) The Admissibility of the Studies Under Fed.R.Evid. 70S Because I am persuaded that the studies are routinely relied upon by members of the relevant scientific community, I will not exclude the studies on the basis of Fed.R. [2] The defendant argues that Fed.R. Evid. 703. Evid. 703 bars the testimony of plaintiffs' experts on the animal studies. Fed.R.Evid. 703 provides: (2) The Admissibility of the Studies Under Fed.R.Evid. 403 The facts or data in the particular case [3] The defendant urges that the ani upon which an expert bases an opinion or mal studies, even if found not to be novel inference may be those perceived by or scientific evidence, should be excluded be made known to the expert at or before cause their probative value is outweighed the hearing. If of a type reasonably by their potential to overwhelm, mislead, . relied upon by experts in the particular and confuse the jury. The support defend 0 . field in forming opinions or inferences ant offers for this position is unpersuasive. . upon the subject, the facts or data need First, the defendant cites In re: "Agent . not be admissible in evidence. Orange"Product Liability Litigation, 597 The Third Circuit has taken a liberal F.Supp. 740, 781 (E.D.N.Y.1984), affd in approach to the introduction of expert testi part and rev'd in part, 818 F.2d 226 (2d mony by allowing experts to base their Cir.1987), for the proposition that reports opinions on data that is reasonably relied by regulatory agencies are not sufficient to upon by other experts in the field. There prove causation in private lawsuits. The is no separate requirement that the court issue, however, is not whether the reports itself find the data to be trustworthy. See, are alone sufficient to prove causation, but eg., In re Japanese Electronic Products whether they would prejudice a jury's deci Antitrust Litigation, 723 F.2d 238 (3d Cir. sion of that issue. 5' 692 FEDERAL SUPPLEMENT J | . As to prejudice, the defendant argues undue harm. See, e.g., Hendrix v. Raybes- th at this court should adopt the reasoning tos-Manhattan, Inc., 776 F.2d 1492, 1502 set forth by two other district courts on the (11th Cir.1985). Upon consideration of de- admissibility of anim al studies. See De fendant's argum ents, I am n ot persuaded fendant's M emorandum, a t 73-74 (citing In th a t the probative value of the animal ex- re "Agent Orange"Product Liability Liti perim ent studies will be substantially out- gation, 611 F.Supp 1223, 1241 (E.D.N.Y. weighed by their potential prejudice. Furl 1985) ; Lynch v. Merrell-National Labora therm ore, I believe th a t counter-argum ent tories, 646 F.Supp. 856, 865-67 (D.Mass. in court, rath er than the exclusion of evh 1986) , affd 830 F.2d 1190 (1st Cir 1987)). dence, offers the more satisfactory means Neither of these cases, however, purported of resolving the dispute over the value of to establish a general rule th at animal stud these scientific reports. ies are inadmissible. As with all questions of admissibility, the court m ust look closely Accordingly, the defendant's first motion a t the type of evidence presented and the will be denied. :is 'I S ..TSjt purpose for which its introduced. ' ' 3lt In the A gent O range litigation, Judge II. Motion to Exclude the Testimony r i Weinstein found the animal experiment Reports of G. John Digregorio, M.D.,. studies to be potentially misleading in large Ph.D. and Wendell W. Kilgore, Ph.D. '; part because the plaintiffs' own experts conceded that the studies were of dubious value in determ ining the effects of A gent Orange on hum ans. See 611 F.Supp. a t 1241. In Lynch, the plaintiffs' case for the probative value of their animal studies was substantially weakened by the fact th at the plaintiff had been exposed only to thera peutic doses of the substance a t issue, ben- dectin. See 646 F.Supp., a t 866. In con trast, th e studies in this case are routinely relied upon by members of the scientific community to render opinions relating to the issue for which they are offered, the carcinogenicity of term iticides. See An sw ers of Plaintiffs to D efendant's Supple [4] The plaintiffs intend to call two ex- % perts, G. John Digregorio and Wendell W. Kilgore, to offer testim ony relating, among "A other things, to the toxicity of the termiti- j.,cides to which the plaintiffs were exposed, [ f and to the plaintiffs' risk of fu tu re illness ij. as a re su lt of their exposure. Their testi- >v mony will rely in p a rt on the anim al studies discussed above. The first basis defendant o ffers in sup port of this Motion--th at the opinions of plaintiffs' experts are not based upon data reasonably relied upon by other experts in their field--is resolved by the ruling on the motion above. mental Set of Interrogatories Addressed The additional case support defendant for A nswer by Dr. G. John DiGregorio, a t p resents for this motion does n ot alter my 4-5 (attached as Exhibit "D " to Plaintiffs' view th at these animal experiment studies Answ er to D efendant's Motion to Exclude are reasonably and routinely relied upon by Certain Animal Experiments); United other scientists. The defendant cites FelStates Environm ental Protection Agency, genhauer v. Texaco, Inc., Slip Op. No. 85- -( "Chlordane, Heptachlor, Aldrin and Dieldrin, Technical Support Document" (at tached as Exhibit "C" to same); National Academy of Sciences, "An Assessm ent of the Health Risks of Seven Pesticides Used for Termite Control" (attached as Exhibit "I" to same). 3671 (Dec. 1, 1987) [available on WESTLAW, 1987 WL 26592], in which Judge Ditter rejected as inadmissible testimony by a lone doctor purporting to show a causal relationship betw een plaintiff's inju ries and exposure to certain chemicals. Judge D itter found th at neither the doctor u ; < fA Because Fed.R.Evid. 403 provides for the nor "anyone else in the medical or scientific exclusion of relevant evidence, it "should community" had conducted specific studies : be invoked very sparingly" and only when concerning the relationship between the the probative value of the evidence is sub chemicals and injuries a t issue. Id, a t 4. stantially outw eighed by the potential for Clearly, the circum stances surrounding the ,: VILLARI v. TERMINIX INTERN., INC. Cite u 692 F-Supp. 568 (E-D.Pn. I98S) *^p% ^testim ony in Felgenhauer d iffer substan- may offer a prognosis of a person already "%> jjally, from the circum stances here, in I ? which plaintiffs' experts rely on num erous iP studies that have undertaken precisely the PVtask of demonstrating a causal relationship 1between exposure to term iticides and the 'onset, of cancer. S P V n ,e defendant also refers to the decision pif & Viterbo v. Dow Chemical Co., 826 F.2d I ` 420 (5th Cir.1987), in which th e co u rt found that the plaintiffs' ex p ert's opinion lacked w objectivity because he form ed his opinion i t |i `without any scientific literature to support his claim of a causal relationship betw een injured, D efendant's Memorandum, a t 20 (citing Boyle v. Pennsylvania R.R. Co., 403 P a. 614, 170 A.2d 865 (1961)), defend ant asserts that plaintiffs have not yet suffered an injury or illness as a result of their alleged exposure to defendant's term i ticides. Because plaintiffs do in fact claim to have already sustained health-related in juries, and represent th a t they will intro duce independent evidence in support of th a t claim, their experts should not be barred from testifying about the medical risks plaintiffs face as a result of those alleged injuries. See Villari v. Terminix plaintiff's symptoms and exposure to de- Int'l Inc., 663 F.Supp. 727, 735 (E.D.Pa. ?' fendant's pesticide. Again, the circum- 1987). . stances of this case differ significantly, ;(lv because the plaintiffs' ex p erts re s t their opinions on a wide body o f scientific evi dence on which experts in this field routine Finally, the defendant contends that Dr. Kilgore may not testify as to the health of the plaintiffs because he is not a medical doctor. This claim is unsupported. While ly rely. it is true th at an expert m ust dem onstrate m sfifj The defendant's insistence th a t three Cir cuit courts have " unequivocably [sic] held . animal studies . . . unreliable in the scientific community as a predictor of ef fects in man" is simply u n w arranted. De fendant's Memorandum in Support of Mo tion to Exclude Testim ony and R eports, a t 15. As pointed o u t above, th e question of whether any particular anim al study pro vides the kind of basis on which an ex pert in the field may reasonably rely requires an examination of the context in which the study is made. Thus, defendant's refer ence to Gulf South Insulation v. US. Consumer Product Safety Comm'n, 701 F.2d 1137 (ath Cir.1983), is a s inapposite as the references to the A gent O range litiga tion and Lynch, discussed in Section I, because the court in Gulf South relied heavi special competence to present expert testi mony, see, e.g., Aloe Coal Co. v. Clark Equip., 816 F.2d 110 (3d Cir.), cert denied, -- U.S. -- - , 108 S.Ct. 156, 98 L.Ed.2d 111 (1987), there is no per se rule th a t non-phy sicians are unqualified to testify about the medical condition of individuals exposed to chemicals. On its face. Dr. Kilgore's re sume offers substantia) support for the conclusion that Dr. Kilgore possesses suffi cient skill, knowledge, and experience in toxicology to render an expert medical judgm ent. See Resume of Dr. Kilgore, Plaintiffs' Answer to D efendant's Motion to Exclude Certain Animal Experiments, Exhibit "A." If defendant wishes to chal lenge the sufficiency of D r. Kilgore's cre dentials, defendant will have the opportuni ty to cross-examine Dr. Kilgore a t trial before a final decision is made on Dr. Kil ly on the fact th a t the e x p ert's opinion was based on a single study involving only 240 rats. In contrast, plaintiffs' experts rely on numerous studies involving thousands gore's sta tu s as an ex p ert witness. Accordingly, th e defendant's second mo tion will be denied. of subjects as a basis for their contention III. Motion to Preclude the Evidence of that defendant's term iticides are probable Terminix's Discontinuance of the .human carcinogens. Use of Aldrin, Chlordane and Hep- h The defendant's second argument to exy, elude' testimony is that Pennsylvania law bars admission of speculative testimony . tachlor and the Evidence that these Termiticides Are No Longer Distrib uted in the United States concerning increased risk of future injury. The defendant a sserts th a t its voluntary Although defendant concedes that a doctor choice to discontinue its use of certain idji[ ,,Vl. Svi }t!i8t c si ill K. iti'j C- cMS:,''.1 1'.) l\l -- -v ir- : v] a:*.,.. 8 1005 1>(oM 574 692 FEDERAL SUPPLEMENT termiticides constitutes a subsequent rem e dial m easure, evidence of which is inadm is sible under Fed.R.Evid. 407. The rule states: ' When, after an event, measures are tak en which, if taken previously, would have made the event less likely to occur, evi dence of (he subsequent m easures is not admissible to prove negligence or culpa ble conduct in connection w ith the event. This rule does not require the exclusion of evidence of subsequent m easures when offered for another purpose, such as proving ownership, control, or fea sibility of precautionary measures, if con troverted, or impeachment. based on 402A of the R estatem ent (Se. ond) o f Torts. See Josephs v. Harris Corp., 677 F.2d 985, 990-91 (3d Cir.1982); Knight v. Otis Elevator Co., 596 F.2d 84 91-92 (3d Cir.1979). While it is tru e that the rule is hardly served by excluding \> dence of a party acting under compulsion it is also true th a t some remedial efforts would be deterred if a p arty was penalized for acting prior to such compulsion. Thus, the voluntariness of a remedial effort should be presum ed ab sent a clear showing of coercion. In this case, the defendant discontinued its use of term iticides containing chlordane and heptachlor a t the sam e time th at the A. Evidence of Terminix's Discontin Environm ental Protection Agency was ne uance of Use gotiating with Velsicol Chemical Corpora [5] The plaintiffs offer a number of ar gum ents for allowing the introduction of evidence relating to the defendant's discon tinuance of use. First, plaintiffs contend th a t the discontinuance was not voluntary, and hence the purposes underlying the ex clusion o f a defendant's rem edial m easures are not implicated. Second, plaintiffs a r gue th at their anticipated uses of the evi dence are not restricted by Fed.R.Evid. 407, because they do not plan to use the tion ("Velsicol"), a prim ary manufacturer of these termiticides, to discontinue their sale. See Environm ental News, attached to P laintiffs' M em orandum as Exhibit "G", a t 3-4 (describing E PA 's review of termiticide uses over the p a st decade). The de fen d an t was under no legal obligation to discontinue its use of chlordane and hepta chlor. Moreover, although the relevant regulatory agencies were contemplating the promulgation of stricter standards, evidence to prove defendant's negligence. Finally, the plaintiffs urge that the motion should n o t be g ran ted until it is clear th a t the evidence cannot be introduced for a permissible purpose under Fed.R.Evid. 407, such as to prove feasibility or to impeach they provided explicitly for the legal use of th e term iticides a t issue a t the time of the defendant's decision. See Defendant's Re ply Memorandum in Support of Motion to Exclude Evidence of Discontinuance of Use, a t 2. Under such circumstances, al defendant's witnesses. These argum ents lowing the plaintiff to introduce evidence are not persuasive. of the defendant's discontinuance of use The stro n g policy justification underlying would run counter to the purposes of Fed. Fed.R.Evid. 407--the concern th a t perm it R.Evid. 407. ting the introduction of evidence of remedi Plaintiffs also argue th at Fed.R.Evid. al m easures to show p ast negligence will 407 is inapplicable because they do not deter efforts to remove potential hazards-- anticipate introducing evidence of defend su g g e sts th a t any exception to the rule a n t's discontinuance of use to prove negli ishould be crafted carefully so as to not gence. R ather, they plan to introduce the d e te r possible corrective efforts. See, e.g., evidence to prove the dangerousness of Werner v. Upjohn Co., Inc., 628 F.2d 848, 856 (4th Cir.1980), cert denied, 449 U.S. 1080, 101 S.Ct. 862, 66 L.Ed.2d 804 (1981). defendant's term iticides. Terminix's dis continuance of use, however, is not neces sarily probative of the dangerousness of This approach is consistent with the Third the product, and may well be excludable as Circuit's practical reading of Fed.R.Evid. irrelev an t under Fed.R.Evid. 401. See G. 407, as reflected in its decision to hold the W right & K. Graham , Federal Practice ru le applicable to products liability actions and Procedure: Evidence 5282, a t 95-96 VILLARI v. TERMINIX INTERN., INC. 575 Cite u 692 F.Supp. 568 (E-D.Pa. 1988) ^(1978) (discussing as one rationale underly the evidence constitu tes a subsequent re i n g Fed.R.Evid. 407 the likelihood th at a m edial e ffo rt by Terminix, and th a t it m ay ^defendant's later conduct is not probative not be introduced to su p p o rt plaintiffs' *pf the safety of his earlier conduct); cf. claim of the dangerousness of the term iti ! Dine v. Western Exterminating Co., Slip cides. I op." Civil Action No. 86-1857 (D.D.C. 1 March, 1988) [available on WESTLAW, 1988 WL 28370] (excluding as irrelevant `greement between EPA and Velsicol to | cancel m any registered uses of chlordane jl and heptachlor). In any case, the possibiliP ty that jurors would make the forbidden 4 inference th a t Term inix's discontinuance ' constitutes an admission of its culpability with respect to its prior use of the term iti B. Evidence th at the Termiticides are No Longer Distributed in the United States . [6] The defendants argue th a t evidence th at the termiticides are no longer distrib uted in the U nited States should be exclud ed either as irrelevant under Fed.R.Evid. 401 o r excessively prejudicial under Fed.R. cides cautions against adm itting the testi Evid. 403.2 mony. Much of the evidence relating to the ' * More importantly, the plaintiffs' asser tion th a t the evidence can be used to show the dangerousness of the product without also implicating negligence on the p art of the defendant is dubious. Negligence is certainly related to the dangerousness of the product with which one is dealing. The standard of care appropriate to the disposal of ordinary garbage unquestionably differs from the standard appropriate to the dis posal of toxic waste. To the extent plain tiffs prove the dangerousness of the prod uct through evidence of defendant's discon withdrawal of termiticides from the United S tates m ark et h as been excluded in other litigation. See Dine v. Western Extermi nating Co., Slip Op., Civil Action No. 861857 (D.D.C. M arch 18, 1988) (holding th at evidence of Velsicol's agreem en t with the EPA to cancel certain uses of chlordane and heptachlor was not probative of the carcinogenicity of these termiticides); Rabb v. Orkin Exterminating Co., 677 F.Supp. 424 (D.S.C.1987) (upholding exclusion of ev idence of th e alleged withdraw al of chlordane-based products by Velsicol). The per tinuance of use, they also support their suasive rationale behind these decisions is claim of defendant's negligence. This un th a t evidence th a t some companies with avoidable inference suggests that the plain drew certain chemicals from the market, tiffs a re in fact using the defendant's sub unaccom panied by proof th a t th e compa sequent actions to prove negligence, exact nies based their withdraw als on knowledge ly the purpose proscribed by Fed.R.Evid. of th e chemicals' dangerousness, is unlikely 407. to have m uch probative value. Proof of Finally, plaintiffs argue that this court should n ot rule on this motion until it is clear w hether the evidence can be used to show feasibility or to impeach defendant's witnesses, two permissible uses for evi dence otherwise excludable under Fed.R. Evidi 407. If plaintiffs a t some point dem onstrate th at the evidence can be offered for a purpose consistent with Fed.R.Evid. 407, they may seek to introduce it a t th a t time. At the present time, I rule only th at the chemicals' dangerousness requires much more direct evidence. Here, the plaintiffs intend to use expert testimony and animal studies to support their position concerning the carcinogenicity o f the termi ticides. W hatever additional support might be provided by the evidence th at the term i ticides are no longer used in the United S tates is outweighed by the substantial possibility th a t a jury would draw an un w arranted inference from the evidence. 2., The defendant seems to concede, correctly, that remedial efforts by non-parties are not ex cludable via Fed.R.livid. 407 unless the non par- ' (y has a sufficient interest in the litigation such ". that the introduction of evidence of its remedial efforls may deter its undertaking those efforts. For a discussion of the admissibility of thirdparty remedial efforts, sec Wright & Crahatn, supra, 5248, at 112-13. lu r jn u e i > o :o : 03 !o . ro o 4 57$ 692 FEDERAL SUPPLEMENT ; Accordingly, the defendant's Motion to Preclude th e Evidence of Terminix's Dis continuance of the Use of Aldrin, Chlordane, and Heptachlor and /th e Evidence th at these Termiticides Are No Longer Dis tributed in th e United States will be g ra n t ed. IV. Motion to Exclude Evidence on Fail ure to-Warn>-- In their complaint, plaintiffs assert that the defendant should be held strictly liable under 402A of the R estatem ent (Second) of Torts for its alleged failure to warn of the dangers associated with its termiti cides. In this motion, the defendant seeks to exclude evidence relating to its alleged failure to warn. The defendant offers two argum ents. First, the defendant claims th at it cannot be deemed a seller or distrib u to r of a p roduct in plaintiffs' 402A strict liability action because the Federal Insecti cide, Fungicide, and Rodenticide Act, 7 U.S. C. 136 e t seg. (1982) ("FIFR A "), provides th at a certified applicator who does not deliver any unapplied pesticides should not be viewed as a seller or distributor under the Act. The defendant maintains that Congress intended in this section to insu late certified applicators from strict liabili ty under 402A. The defendant's second argum ent is th at FIFRA preempts any sta te law t o r t claim based on defendant's alleged failure to warn. A. The Definition of ``Seller'' Under F I FRA / [7] In ruling on defendant's Motion for Sum m ary Judgm ent, Villari v. Terminix Int'l Inc., 663 F.Supp. 727 (E.D.Pa.1987), this court found that Pennsylvania would allow the extension of strict products liabil ity to a person who supplied a product in the course of performing a service. That opinion canvassed the sound policy reasons and precedent for allowing a supplier of a product in a "hybrid sale-service transac tion'' to be held strictly liable for product defects. Nee 663 F.Supp. a t 730-31. The defendant now argues th a t Congress in- tended to preclude such liability by its latt. g u age in 136(e)(1) of FIFRA. Section 136(e)(1) provides th a t i [A certified applicator is] any individual who is certified under section 136b of this title as authorized to use or supjrl vise the use of any pesticide which is classified for restricted use. Any appli cator who holds or applies registered pes ticides, or use dilutions of registered pest . ticides consistent with subsection (ee) of this section, only to provide a service of controlling pests w ithout delivering any unapplied pesticide to any person so served is not deemed to be a seller or distributor of pesticides under this sub chapter. The defendant contends th a t if Terminix is viewed as a non-seller under FIFRA, it cannot be viewed as a seller for the pur poses of plaintiffs' 402A action. Accord ingly, defendant arg u es,' th e' plaintiffs' strict liability action m u st fail, because lia bility under 402A attaches only to those who have sold a product. See Defendant's Memorandum, a t 8 (citing Kohr v. JohnsManville Corp., 534 F.Supp. 256 (E.D.Pa. 1982)). A lthough 136(e)(1) does express Con g re ss's in ten t to tre a t certain individuals who apply pesticides as non-sellers, it is apparent from o th er passages in 136 that Terminix is not an individual within the m eaning of the Act. Hence, FIFR A does not preclude plaintiffs' strict products lia bility action based on Term inix's alleged failure to warn. The A ct re fe rs in various sections to both "persons" and "individuals." The drafters' decision to use one of the term s rather than the other, so as to indicate w hether a re quirem ent extends to a single individual or to a business, is deliberate throughout the statute. F or example, 136b, which gov erns the certification procedure, provides in pertinent part that In any S tate in which the Adm inistrator conducts a certification program , the Ad m inistrator m ay require any person en gaging in the commercial application sale, offering for sale, holding for sale> or distribution of any pesticide one or %. v -K. .'t VILLARI v. TERMINIX INTERN., INC. Cite u 692 F.Supp. 566 {E-D.Pa. 1988) 577 more uses of which have been classified ' ue in effect any requirements for label 'for' restricted use to maintain such ing or packaging in addition to or differ ^records as the Administrator may by regula- ent from those required under this sub chapter. if tion prescribe___ Such standards shall Congress may preempt state law provide that to be certified, an individu through either express language or impli al must be determined to be competent cation. See, e.g., Cipollone v. Liggett (' with respect to the use and handling of Group, Inc., 789 F.2d 181 (3d Cir.1986), 'pesticides___ (emphasis added) cert, denied, 479 U.S. 1043, 107 S.Ct. 907, In addition, "person" is defined in 136 of 93 L.Ed.2d 857 (1987). A court may find the Act as "any individual, partnership, that Congress has implicitly preempted association, corporation, or any organized state law either because Congress has man group of persons whether incorporated or ifested an intent "to occupy a field" or h ot" Given this definition of "person," because an actual conflict arises between Congress seems to have intended that the the state and federal regulation. Silkwood "term "individual," as used in 136(e)(1), v. Kerr-McGee Corp., 464 U.S. 238, 104 should retain its ordinary meaning. Thus, S.Ct. 615, 78 L.Ed.2d 443 (1984). There is a j 136(e)(1) reflects an intent to protect "in presumption that "Congress did not intend dividuales]," and not entities such as Termi- to displace state law." Maryland v. Loui nix, from liability as "sellerfs] or distribu- siana, 451 U.S. 725, 746, 101 S.Ct 2114, 4 : tor[s] of pesticides." 2129, 68 L.Ed.2d 576 (1981). .... Moreover, as the plaintiffs point out in It is clear from 136v that FIFRA con their brief, Terminix's role in this case was templates a regulatory role for states in far greater than that of a licensed applica the area of pesticides. The only question is tor of termiticides. Terminix served as the whether plaintiffs' claim based on defend seller, distributor, and applicator of the ant's alleged failure to warn falls within termiticides used in the plaintiffs' home. the range of permissible state regulation or \ Thus, neither the language of 136(e)(1) conflicts with FIFRA's prohibition of state nor the law of Pennsylvania prevents Ter labeling and packaging requirements. minix from being viewed as a seller for the The defendant argues that this court purposes of plaintiffs' 402A strict liabili should follow the reasoning of Fitzgerald ty action. v. Mallinckrodt, Inc., 681 F.Supp.. 404 (E.D.Mich.1987), a recent decision which ; B. Defendant's Claim that Plaintiffs' found that FIFRA preempted a state law State Law Tort Action for Failure to cause of action based on the alleged inade Warn is Preempted by FIFRA quacy of the defendant's warning labels. (8) The defendant contends that $ 136v reveals Congress's intention to preempt state law tort actions against pesticide com panies based on inadequate warnings. Sec tion 136v allows for state regulation of the sale or use of federally registered pesti cides but proscribes state imposition of la The plaintiff in Fitzgerald maintained that if "the warning labels been prepared differ ently he would not have been injured in the same manner." The nature of the plain tiffs claim in Fitzgerald differs signifi cantly, however, from the plaintiffs' claim in this case. beling or packaging requirements that add The plaintiffs do not assert that their tb or differ from those required by the Act. injuries were the result of the defendant's The section reads, in pertinent part: failure to comply with federal regulations (a) A State may regulate the sale or use regarding the labeling and packaging of of any federally registered pesticide or defendant's pesticides. Rather, their claim device in the State, but only if and to the is that the defendant had an obligation, . extent the regulation does not permit any under state common law, to ensure that an sale or use prohibited by this subchapter. appropriate warning reached not only the (b) Such State shall not impose or contin- employees who handled the pesticides, but jj j ! A* -f r t ; O o <1 57 8 692 FEDERAL SUPPLEMENT also t>.- plaintiffs themselves, as the ulti mate consumers of the pesticides. See Plaintiffs' Response to Defendant's Motion, at 8 (citing Davis v. Wyeth Laboratories, Inc., 39? F.2d 121, 131`(9th Cir.1968)). 1.. Defendant's Motion to Exclude Certain Animal Experiments from Evidence on the Issue of the Human Carcinogenicity of Aidrin, Dieldrin, Chlordane & Heptachlor is DENIED; Recognition of this . "failure-to-warn" claim does not conflict with FIFRA's prohi bition of state labeling or packaging re quirements because the defendant's liabili ty is unrelated to the manner in which the product is labeled or packaged. Under plaintiffs' theory, liabj]ily_allafces as a re sult or 'defendant's failure to relay the warning* t L t ' f t M A ' requires sellers to affix Txr their produc t 1 In addition, the plaintiffs' contention that their failure-to-warn claim does not conflict with FIFRA is strengthened by the fact 2. Defendant's Motion to Exclude the Tes timony & Reports of G. John Digregorio M.D., Ph.D. and Wendell W. Kilgore, Ph D* is DENIED; 3. Defendant's Motion to Preclude the Ev idence of Terminix's Discontinuance of the Use of Aldrin, Chlordane and Heptachlor and the Evidence that these Termiticides are No Longer Distributed in the United States is GRANTED; 4. Defendant's Motion to Exclude Evi dence on Failure to Warn is DENIED. that their claim encompasses events subse quent to the defendant's application of termiticides in their home. The plaintiffs maintain that the defendant had a duty to inform them of_anv health risks posed by the termiticide spill in their basement. This claim in no way involves the fedirally- mandated labeling and packaging require ments of FIFRA. Finally, the obvious purpose underlying FIFRA's prohibition of state labeling and packaging requirements--that non-uniform Orazio DiROCCO, John A. DiRocco, Richard DiRocco, and Nicholas DiRocco, d /b /a DiRocco Brothers v. requirements by states would burden inter state trade of pesticides--is not under mined by the plaintiffs' failure-to-warn claim. Success by the plaintiffs would pro MICHIGAN MUTUAL INSURANCE COMPANY. Civ. A. No. 87-1886. vide no incentive to the defendant or any United States District Court, other seller of termiticides to alter its label E.D. Pennsylvania. ing or packaging. Rather, such success should, as its only effect, encourage compli Aug. 16, 1988. ance with state regulations concerning the sale and use of pesticides, a result wholly consistent with 136 of FIFRA. Accordingly, defendant's Motion to Ex clude Evidence on Failure to Warn will be denied. Insured brought action against insurer to recover under business auto policy for theft of heavy truck on which insured had just taken delivery, but on which insured had only made small down payment and for ORDER which insured had not yet received certifi cate of title. The District Court, Louis H. For the reasons stated in the accompany Poliak, J., held that under Pennsylvania ing Memorandum, it is ORDERED that: law, title to truck passed to insured at time 3. The defendant argues that because the product used in plaintiffs' home was a diluted version of the termiticide regulated under FIFRA, no wanting'need have been given to the plaintiffs. This argument, however, goes to the merits of the plaintiffs' claim and not to whether that claim is preempted by FIFRA. oO DIROCCO v. MICHIGAN MUT. INS. CO. 5` < Cite u 692 F.Supp. 578 (E.D.P*. 1988) $ truck was delivered for painting in in- pany ("Michigan Mutual''), on a business sured's company's colors and truck was auto policy covering DiRocco's vehicles, for j | jj,u3 covered under business auto policy, the theft of a heavy truck on which DiRoc jjg;* Judgment accordingly. e.L co had just taken delivery but on which DiRocco had only made a small down pay ment and for which DiRocco had not yet ^ ' l. Insurance G388(3) received the certificate of title. V. Insurer's issuance of policy endorse* ment retroactively acknowledging truck to i t,e covered by business auto policy, effec- v tive as of date prior to theft of truck, did ; not estop insurer from challenging in" sured's claim under policy for theft of truck; endorsement was procedural mecha- The controlling facts are stipulated: A. The plaintiffs are Orazio DiRocco, John A. DiRocco, Jr., Richard DiRocco, and Nicholas DiRocco doing business as DiRoc co Brothers. B. The DiRocco Brothers is a partner ; nism adopted by insurer to process claim ship organized pursuant to the laws of the i and insured did not detrimentally rely on Commonwealth of Pennsylvania with its - endorsement. principal place of business located at 501 2. Insurance =164 Montgomery Avenue, West Chester, Pa. Insured was entitled to recover under business auto policy for theft of heavy i truck on which insured had just taken de livery, but on which insured had only made C. The main business activity of the partnership consists of hauling stone, as phalt, gravel or other materials to and from construction projects, such as roads, . small down payment and for which insured parking lots, et cetera. . had not yet received certificate of title; although parties stipulated that delivery of truck was to be accomplished as' soon as possible with payment of balance of pur- : chase priced due upon delivery, there was no explicit agreement that title would re main in seller pending payment of balance, and, thus under Pennsylvania law, title to truck passed to insured when seller deliv D. The partnership has been in business since September 1983. E. The defendant is the Michigan Mutu al Insurance Company with home offices in Detroit, Michigan. The defendant does business in Pennsylvania from an office located at 510 Park Road North, Wyomissing, Berks County, Pennsylvania. ered truck to be painted in insured's compa F. The plaintiffs were covered under a ny's colors. 13 Pa.C.S.A. 2401(2), business auto policy, a copy of which has 2606(a)(3); U.C.C. 2-401(2). been attached to plaintiffs' complaint, which is marked Exhibit A -l. All premi ums have been paid on the policy, and the . William H. Mitman, Jr., West Chester, policy was in full force and effect during Pa., for plaintiffs. September 1986. Michigan Mut. Ins. Co. by Charles A. Harad, Harad & Snitow, Philadelphia, Pa., for defendant. G. The policy covered all of the vehicles owned by the plaintiffs; i.e. the plaintiffs owned and operated a small fleet of ve hicles, each of which was insured pursuant ; ' MEMORANDUM to the Michigan Mutual policy. LOUIS H. POLLAK, District Judge. The question presented in this diversity case is whether DiRocco Brothers ("DiRoc. co")--a family firm of four brothers en, gaged in hauling stone and other heavy construction materials -is entitled to recover from Michigan Mutual Insurance Corn H. The Michigan Mutual policy provid ed for a deductible of $250, by which amount any moneys owed to plaintiffs un der the theft coverage would be reduced. I. Plaintiffs were not named insureds under any other policies which insured their vehicles from loss due to theft. s'; 3i- C" C c: i 6 663 FEDERAL SUPPLEMENT whether an allegation of churning satisfied 1986) (citation omitted). "[T]here is no sin the RICO pattern requirement. As Judge gle transaction, or limited, identifiable Skinner said, group of trades, which can be said to con this approach strikes an appropriate bal stitute churning." Miley v. Oppenheimer ance between RICO's role as a flexible & Co., Inc., 637 F.2d 318, 327 (5th Cir. Unit tool for discouraging criminal activity A, 1981). Finally, as was the case in Rob and the danger of allowing it to reach erts, sporadic and isolated criminal activities. It also avoids the use of conclusory la bels and focuses the inquiry directly upon the question of what constitutes continuous criminal behavior. I conclude that the appropriate method for deter mining whether plaintiffs have alleged a pattern of racketeering activity is to fo cus on the specific factors evincing conti nuity of criminal activity. Id. at 412. The factors Judge Skinner con sidered closely parallel those used by the Seventh Circuit in Morgan, supra, 804 F.2d at 975, cited by the First Circuit in Roeder. They are: (1) the number of independent victims of the alleged activity; (2) the num ber of participants in the alleged crime; (3) the purpose of the activity; (4) the result of there are no allegations that this activity is likely to occur in other contexts or that it will continue to be a threat to society. Nothing in the complaint suggests that the defendant . . . regularly engaged in criminal activities. The only factor that favors treating [defendant's] activities as a pattern is that the alleged activity con tinued for [fifty-eight] months. How ever, time alone does not transform [de fendant's] acts into separate, continuous activities. See Zahra [v. Charles ], 639 F.Supp. [1405] at 1406-09 [(E.D.Mich. 1986)] (activities continuing for seven years not a pattern). Roberts, supra, 653 F.Supp. at 412. Plaintiff alleges that defendant commit the activity; (5) the method of commission; ted "garden variety" securities fraud, a (6) the number of transactions; (7) whether type of case which Congress did not intend the scheme is ongoing and open ended; and that RICO reach. RICO is "not aimed at (8) the duration of the activity. As was the the isolated offender," Sedima 105 S.Ct. at case in Roberts, the Court concludes that a 3285 n. 14 (quoting 116 Cong.Rec. 35193 consideration of these factors indicates that (1970) (statement of Rep. Poff)), and plain plaintiff has failed to allege a "pattern of tiff has failed to allege sufficiently a threat racketeering activity." of continuing criminal activity on the part Plaintiff is the only victim of the alleged of defendant so as to satisfy the "pattern scheme, and, although defendant worked of racketeering activity" requirement. for three different brokerage firms over the relevant time period, he was the sole participant in the scheme. "The purpose and result of the alleged activity was quite specific, to defraud [the plaintiff], and the alleged method of commission was at all times the same, the churning and manipu lation of [his] . . . account" Roberts, sui pro, 653 F.Supp. at 412. Moreover, while plaintiff alleges that defendant initiated some 200 transactions in his account over a In summary, for the reasons hereinabove stated, the Court finds and rules that de fendant's motion to reconsider must be granted; that part of the prior Order of September 29, 1986, which denied defend ant's motion to dismiss Count III of plain tiff's complaint is hereby vacated, and de fendant's motion to dismiss said count is granted. SO ORDERED. nearly five-year period, and that each transaction constitutes securities fraud, it is important to remember that "[c]hurning is a unified offense which is identified only by an analysis of a broker's management of an account" Shad v. Dean Witter Reynolds, Inc., 799 F.2d 525, 530 (9th Cir. 1008 VILLARI v. TERM INIX INTERN., INC. Cite a* M3 F.Supp. 7J7 (E.O.P*. I87) 727 bers suffered headaches, nausea, dizziness, Leonard VILLARI and Annette V lllari, and general malaise in month after spill of Individually and on B ehalf of th e ir mi- the chemical in their home, and expert is- n o r child ren M am ie, L eonard, Heidi, sued rep o rt in which he concluded th at H eather, Joshua and Annette Villari symptoms suffered were consistent with v. effects of exposure to chemical. TERM INIX INTERNATIONAL, INC. Civ. A. No. 85-1363. 3. A griculture =9.13 Homeowners stated strict liability United States District Court, E.D. Pennsylvania. cause o f action against pest control busi ness under Pennsylvania law for its use of Ju n e 24, 1987. term iticide in their home, although busi ness contended it could not be held liable under Pennsylvania law because it provid Homeowners, individually and on be ed a service rather than a product. half of their minor children, brought action ag ain st p est control business alleging th at 4. A g riculture =9.13 business contaminated their home with a hazardous termiticide. The business moved for partial summary judgment. The District Court, Louis H. Poliak, J., held that: (1) homeowners stated cause of ac tion under Pennsylvania law for strict prod ucts liability; (2) business was not liable for intentional infliction of emotional dis tress; and (3) evidence supported claim for costs of future medical surveillance. Motion for partial sum m ary judgm ent g ranted in p a rt and denied in part.1 P e st control business, which applied term iticide in home a t req u est of homeowners, could not be held strictly liable for ultrahazardous activities under Pennsylva nia law. 5. F ra u d =27 P est control business was not liable under Pennsylvania law for fraud when it represented th at residence, in which a termiticide had been spilled, was habitable and th at cleanup would be completed after homeowners returned to residence; home- 1. A griculture <=9.13 Homeowners presented sufficient evi dence to permit reasonable jury to infer that termiticide used by pest control busi owners failed to present evidence th at would have permitted jury reasonably to conclude th a t homeowners relied on busi ness' representation that their home was ness was hazardous if inhaled, th at chemi safe and th at further cleanup would be cal w as introduced into their home without proper warnings as to danger, and th at the chemical w as defective as a product in the absence of proper warning; therefore, homeownerB stated cause of action under Pennsylvania law for strict products liabili ty- perform ed promptly, but, rather, evidence showed th at homeowners returned to home because they were informed that their ho tel bills would no longer be paid and they . arranged for further air sampling to permit them to make independent assessment of residence's condition. 2. A griculture =8.13 Homeowners' Pennsylvania strict lia bility claim against pest control business for its use of termiticide in home w as not insufficient, although business contended th a t homeowners failed to produce evi dence that they suffered physical harm as a result of their exposure to chemical, giv en deposition testim ony th a t family mem- 6. D am ages <t=>50.10 P est control business' conduct in clean ing of term iticide spilled in home was not sufficiently outrageous, nor resultant emo tional distress suffered by family suffi ciently severe, to support finding of inten tional infliction of emotional distress under Pennsylvania law. * 7k.. 663 FEDERAL SUPPLEMENT Hr O o CO o> I o V1 7. D am ages <^185(1) P u rs u a n t to a contract with Leonard Vil- Evidence did not show pest control lari, Terminix treated the Villari family business knew nature of risk of using home a t 911 Moore Street, Philadelphia, termiticide in home and deliberately acted with various chemicals used for term ite in conscious disregard or indifference to control over a period of years. The method that risk; therefore, homeowners could not of term ite control employed by Terminix is recover punitive damages under Pennsylva to apply chemicals in such a way as to nia law when termiticide was spilled in create a chemical barrier betw een the their home. house and th e soil on which it rests. The 8. D am ages <5=192 Homeowners presented evidence they suffered physical symptoms of exposure to termiticide in month after pest control busi ness spilled termiticide in their home; therefore, homeowners could pursue claims against business under Pennsylvania law for emotional distress damages due to fear of consequences of exposure to termiticide. contract provided for annual reinspections and additional treatm ents when necessary to maintain the chemical barrier. On October 17, 1983, a Terminix employ ee perform ed an additional treatm ent using a termiticide known as Aldrin. Aldrin, a chlorinated hydrocarbon, was approved by the federal Environmental Protection Agency for subsurface ground insertion for term ite control. Federal scientific re 9. D am ages <=185(1), 191 search agencies conducted studies of Ald There was sufficient medical evidence to permit jury to conclude that homeowners suffered physical injury from expo sure to termiticide in month following spill by pest control company and supported claims under Pennsylvania law for costs of future medical surveillance. rin in response to documentation of Aldrin contam ination of m ilitary housing.' The National Academy of Sciences set an inter im airborne level for Aldrin of one micro gram per cubic foot of air. A toxicologist a t Region III of the Environmental Protec tion Agency has concluded th at although there is no proof th at Aldrin is carcinogenic in hum ans, "p ru d en t public health policy David Simon, Pam ela Goodwin, Wolf, and reasonable scientific consideration en Block, Schorr and Solis-Cohen, Philadel ables me to conclude th a t aldrin should be phia, Pa., for plaintiffs. considered a cancer causing chemical in Mitchell Pinsly, Margolis, Edelstein, Scherlis, Sarowitz, Kraem er, Philadelphia, Pa., for defendant m an." P laintiffs' E xhibit 17. The sta te of New York has banned Aldrin for resi dential use, and Terminix no longer uses Aldrin. MEMORANDUM LOUIS H. POLLAK, District Judge. This diversity action was brought by Leonard and Annette Villari, individually and on behalf of their minor children, against Terminix International, Inc. ("Ter minix"), a corporation in the business of pest control. Plaintiffs allege that Termi nix contaminated their home with a hazard ous termiticide in 1983. Their complaint is in multiple counts, and raises a number of distinct legal theories. Terminix has moved for partial summary judgment In the course of treating the Villari resi dence, for reasons that are disputed, a quantity of Aldrin spilled into the Villaris' basement. The Terminix employee made efforts to remove the puddle of Aldrin from the basem ent floor. A nnette Villari testified th at the employee used the fami ly's household mops and rags, which were later used by A nnette Villari elsew here in the house. A nnette Villari testified th at all members of the family suffered headaches, nausea, dizziness and general m alaise in the month after the spill, but did not a t the time t. The particular problem was contamination through seepage of Aldrin into heating ducts, due to the construction methods employed in the type of military housing in question. 5 VILLARI v. TERMINIX INTERN., INC. CJie a t 663 F.Supp. 727 (E.D .PI. 1987) 729 connect their symptoms with the spill. The Restatement (Second) of Torts. The Villar Villaris did, however, became concerned is allege that Terminix sold or distributed about the consequences of the spill for the unreasonably dangerous insecticides and bottles of homemade wine that were fer failed to warn the Villaris of the danger. menting in their basement, and asked Ter- minix to test the wine. Several weeks la [1] Terminix argues that this claim ter, the Villaris contacted state and federal must fail because the Villaris cannot dem environmental agencies; the agencies sug onstrate that Aldrin is a defective product. gested that the Villaris arrange to have the We disagree. Under section 402A, a prod air in their home tested as well. The Vil laris commissioned air sampling tests, and informed Terminix that tests revealed a level of 8.7 micrograms of Aldrin per cubic meter of air. uct may be defective because it fails to carry warnings concerning the risks of foreseeable improper uses. The Villaris have, in our view, presented sufficient evi dence to permit a reasonable jury to infer A month after the spill, Terminix relocat that Aldrin is hazardous if inhaled, that ed the Villari family to two hotel rooms to Aldrin was introduced into their home with permit Terminix to decontaminate the out proper warnings as to that danger, and house pursuant to an agreement to reduce that Aldrin is defective as a product in the the Aldrin contamination to specified lev absence of proper warnings. els. Four months later, in April 1984, the Villaris were informed by Terminix's insur [2] Terminix also argues that the Vil ance carrier that the clean-up was substan laris have failed to produce sufficient evi tially complete and that their hotel ex dence that they suffered physical harm as penses would no longer be paid. The Vil laris had further tests performed in May 1984, and were not satisfied with the re sults of the clean-up. The Pennsylvania Department of Agriculture instructed Ter minix by letter that, because the Villaris use their basement as a play area for their children, further clean-up was needed. For reasons that are disputed, the work was not performed. The Villaris testified that these events placed considerable strain on family life. Crowded conditions in the hotel, and loss of the additional space their basement had provided, caused the family to decide that the two oldest children should live away from home. These circumstances, along a result of their exposure to Aldrin. In her deposition testimony, Annette Villari stated that members of the Villari family suffered headaches, nausea, dizziness, and general malaise in the month after the spill. Dr. G. John DiGregorio, whose qualifications as an expert are unchallenged, issued a report in which he concluded that the symptoms suffered by the Villaris are consistent with the effects of exposure to Aldrin. We con clude that this evidence--although admit tedly not as strong as contemporaneous diagnosis by a treating physician--is suffi cient to permit a reasonable jury to con clude that the Villaris suffered physical harm as a result of Aldrin exposure. with general fears of future medical prob lems due to Aldrin exposure, caused Mrs. Villari in particular to feel inadequate as a parent. [3] Terminix also argues that it cannot be held liable under section 402A because it provided a service rather than a product. There is no doubt that Terminix supplied Terminix's motion for partial summary the termiticides it applied to the Villari judgment is based in part on questions of residence. Indeed, the evidence reveals law and in part on challenges to the factual that Terminix, under contract with the record after discovery. The motion shall manufacturer of Aldrin, was at the time of be granted in part and denied in part.I. the spill the sole supplier of Aldrin in the I. Strict Products Liability United States. Put more precisely, then, Terminix's argument is that one who sup Count VII of the complaint states a claim plies a product in the course of performing for strict liability under section 402A of the a service cannot be held liable under Re- 663 FEDERAL SUPPLEMENT statement (Second) of Torts 402A for de A beauty parlor operator in soliciting pa fects in the product. Although the ques tronage assures the public that he or she tion is an unsettled one under Pennsylvania possesses adequate knowledge and skill law, we conclude that the courts of Penn to do the things and to apply the solution sylvania would, when faced with the issue, necessary to produce the permanent find liability in such circumstances under wave in the hair of the customer. When section 402A. a patron responds to the solicitation she In Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975), the Supreme Court of Pennsylvania explained that "[t]he law of products liability devel oped in response to changing societal con cerns over the relationship between the does so confident that any product used in the shop has come from a reliable origin and can be trusted not to injure her. She places herself in the hands of the operator relying upon his or her ex pertise both in the selection of the prod ucts to be used on her and in the method consumer and the seller of a product." 337 of using them. The ministrations and A.2d at 898. Consistent with those con the products employed on her are under cerns, the court explained that the term the control and selection of the operator; "seller" must, for purposes of section the patron is a mere passive recipient. 402A, be interpreted broadly Id. to include all suppliers of products who, We find these observations particularly because they are engaged in the business applicable to the case before us. Terminix of selling or supplying a product, may be was the sole supplier of Aldrin at the time said to have "undertaken and assumed a of the spill, and its standard "Subterranean special responsibility" toward the con termite control proposal" stated that one of suming public and are in a position to the reasons "Terminix protects you better" spread the risk of defective products. is that "Terminix entomologists maintain Restatement (Second) of Torts 402A, constant EPA standards with exclusive comment c. The actual form of the Terminix chemical formulations for best transactions of such suppliers, whether and safest results." Plaintiff's Exhibit 20. by sale, lease, or bailment, should not Against that background it seems not un alter their obligations. reasonable to conclude that Terminix has, Id. at n. 3. Although the Pennsylvania Supreme Court has yet to address the question of within the framework of the concerns ad dressed by the Pennsylvania Supreme Court in Berkebile, "undertaken and as sumed a special responsibility toward the whether one who supplies a product in the consuming public." Berkebile, 337 A.2d at course of performing a service may be held 898 n. 3. To require a consumer of the liable as a seller under section 402A, the product to pursue the manufacturer direct Supreme Court of New Jersey has, out of ly would belie one of the goals of products concerns quite similar to those expressed liability law--to respond to the realities of by the Pennsylvania Supreme Court in Ber the distribution of products in a changing kebile, answered that question in the af society. firmative. In Newmark v. Gimbel's Inc., The view that one who supplies a product 54 N J. 585, 258 A.2d 697 (1969), the Su in the course of provided services is not preme Court of New Jersey held that a strictly liable in tort has been much criti beauty salon which supplied and applied a cized, see, e.g., Note, Products and the defective permanent wave solution was Professional: Strict Liability in the Sale- subject to strict tort liability for defects in Service Hybrid Transaction, 24 Hastings the product. To hold otherwise, the court L.J. 111 (1972), as has the related view that held, would "put[j excessive emphasis on warranties under the Uniform Commercial form and downgrade! J the overall sub Code are not applicable to the transfer of stance of the transaction." 258 A.2d at goods in connection with the provision of 701. The court explained: services, see, e.g., Farnsworth, Implied 1 0 1 0 O-utfCo VILLARI v. TERMINIX INTERN., INC. 731 Cite * 663 F.Supp. 717 (E.D.P. 1987) Warranties of Quality in Non-Sales II. Strict Liability for Ultrahazardous Cases, 67 Colum.L.Rev. 653 (1957); Com Activities ment, Sale of Goods in Service-Predomi [4] Count VI of the complaint alleges nated Transactions, 37 Fordham L.Rev. that "the handling and application of toxic 116 (1968). In the latter setting, the Penn and/or hazardous chemicals by Terminix as sylvania Supreme Court stated in Hoffman part of its exterminating activities consti v. Misericordia Hospital, 439 Pa. 501, 267 A.2d 867, 870 (1970) that it does "not feel obligated to hinge any resolution of the very important issue here raised on the technical existence of a sale." But see Angell v. Tubies, 36 Pa. D. & C.3d 41, 45 (1983) (classifying hybrid-transaction based on whether goods or services are the essen tial element). In our view, the Pennsylva nia Supreme Court would respond in the same manner to the question of whether, tute ultrahazardous and abnormally dan gerous activities." In Federoff v. Harri son Construction Co., 362 Pa. 181, 66 A.2d 817 (1949), the Pennsylvania Supreme Court adopted sections 519 and 520 of the Restatement (Second) of Torts as a basis for strict liability for ultrahazardous activi ties. We assume that plaintiffs included this count in their complaint as an alterna tive route to strict liability in the event that Terminix was held not to be a "seller" for purposes of section 402A. on the facts of this case, Terminix was a "seller" of goods under section 402A. We think it would agree with one commentator in the UCC warranty setting that "[t]he proposition that there is no sale when Under section 520, the factors to be con sidered in determining whether an activity is ultrahazardous or abnormally dangerous include the extent to which the activity is not a matter of common usage and the goods pass from one person to another in inappropriateness of the activity for the the context of a service-predominated con place where it is performed. Terminix ar tract is a legal fiction which merely serves gues that the application of termiticides is to deprive the consumer of needed protec a common practice in residences, and can tion." Comment, Sale of Goods in Service not be a basis for liability under section Predominated Transactions, 37 Fordham L.Rev. 115, 122 (1968). Federal courts applying Pennsylvania law have made clear that strict products liability has not been expended to include persons who provide only services. See, e.g., Klein v. Council of Chemical Associ ations, 587 F.Supp. 213, 223 (E.D.Pa.1984); Kohr v. Johns-Manville Corp., 634 F.Supp. 266 (E.D.Pa.1982). But the court in Lemley v. J & B Tire Co., 426 F.Supp. 1378, 1379 (W.D.Pa.1977), predicted in dictum that Pennsylvania would follow New Jer sey in holding the supplier of a product in a 520. The Villaris argue in response that the application of the particular termiticide used by Terminix was unusual, and that Aldrin is dangerous when used in resi dences. There is some authority for the proposi tion that the use of pesticides, however common, is an ultrahazardous activity, al though there is also authority to the con trary. Compare Loe v. Lenhardt, 227 Or. 242, 362 P.2d 312 (1961) (crop dusting is ultrahazardous) with Bennett v. Larsen Co., 118 Wis.2d 681, 348 N.W.2d 640 (1984) (agricultural use of pesticides is not ultrahazardous). There is also some authority "hybrid sale-service transaction" strictly li for the proposition that the use of a partic able in tort for defects in the product. We ular pesticide under particular conditions agree,* and conclude that plaintiffs may go may be ultrahazardous, even if the pesti forward with their claim under section cide is approved for the general type of use 402A. to which it is put. Luthringer v. Moore, 2. The rationale for imposing strict product lia bility upon the supplier of the product in this setting is particularly strong where, as here, the alleged defect is a failure to warn: the product reaches its end user "controlled and supervised by Intermediaries who have access to indepen dent information that is equal to or better than that which may be provided by the original product manufacturer." Epstein, Modern Prod ucts Liability Law at 115 (1980). H -* O H* c3 i o 663 FEDERAL SUPPLEMENT 31 Cal.2d 489, 190 P,2d 1 (1948). None under section 402A--are, in our view, bet theless, we conclude that strict liability for ter suited to the claim at hand. ultrahazardous activities is not applicable Terminix's motion for summary judg to this case. ment shall be granted as to Count VI. In general, the Pennsylvania courts have been hesitant to apply section 520 to activi ties not traditionally within its scope. See Haddon v. Lotito, 399 Pa. 521, 161 A.2d 160 (1960) (rejecting application of <j 520 to public fireworks display); Matulevich v. Matulevich, 345 Pa.Super. 507, 498 A.2d 939, 941 (1985) (rejecting application of 520 to the handling of firearms). But our concern in this case stems less from the nature of the activity than from the relationship between the parties. Section 520 lists as one of the factors to be con sidered in determining whether an activity is ultrahazardous "the extent to which its value to the community is outweighed by its dangerous attributes." One of the cen III. Nuisance The Villaris allege in Count VIII of their complaint that their exposure to termiticides "constitutes a nuisance or a substan tial unreasonable interference with their individual use and enjoyment of their prop erty." Upon challenge by Terminix, the Villaris concede that they have not stated, and cannot state, a claim for nuisance. They contend, however, that Count VIII properly states a claim for trespass. With out commenting on the merits of such a claim on these facts, we think it clear that Count VIII cannot be read to include it. Terminix's motion for summary judg ment shall be granted as to Count VIII. tral purposes of this form of strict liability is to assure that those receiving the bene fits of dangerous but essential activities insure against the costs those activities im pose on others. See Albig v. Municipal Authority of Westmoreland County, 348 Pa.Super. 505, 502 A.2d 658 (1985); Indiana Harbor Belt R.R. v. American Cyanamid Co., 517 F.Supp. 314, 318 (N.D. 111.1981) ("courts have found it just to im pose the loss on the one creating the risk and reaping the profit"). The Villaris have attempted to bring their claim under this theory by asserting that application of Aldrin was an activity engaged in by Terminix for its own economic benefit, and that the costs of the activity should be borne by Terminix rather than by the Villaris. But this characterization of the transaction is, in our view, unrealistic. Homeowners con tract for termite protection in order to re duce damage to, and safeguard the eco nom ic value of, their homes. We see no rationale under this theory of liability for requiring a contractor to insure against costs to a homeowner which are caused by an activity requested by that homeowner for the protection of that homeowner's own IV. Fraud and Fraudulent Misrepresen tation The Villaris allege in Count X of the complaint that Terminix's representation that their residence was habitable as of March 19, 1984 and that the clean-up would be completed after they returned to their home was fraudulent The Villaris' re sponse to Terminix's summary judgment suggests a broader scope for the fraud claim, going not only to the events leading to their return to the residence but also to the treatment of the home with Aldrin in October of 1983. In light of the require ment that fraud be plead with specificity, Fed.R.Civ.P. 9, we are not prepared to eval uate the fraud claim on this broader basis. The elements of fraud under Pennsylva nia law are as follows; (1) a misrepresentation, (2) a fraudulent utterance thereof, (3) an intention by the maker that the recipient will thereby be induced to act, (4) justifiable reliance by the recipient upon the misrepresentation, and (5) damage to the recipient as the proximate result. Scaife Co. v. Rockwell-Standard Corp., property. Legal theories that more accu 446 Pa. 280, 285 A.2d 451, 454 (1971). All rately reflect the relationship between the elements of fraud must be proven by evi parties--including strict products liability dence that is clear, precise and convincing. o>. WilliiiiiatiiAfeaHiilMlitiil VILLARI v. TERMINIX INTERN., INC. 733 Cite h M 3 F.Supp. 727 (E.D.P*. 1987) Snell v. Pennsylvania, 490 Pa. 277, 416 F.2d 1265, 1274 (3d Cir.1979). "The cause A.2d 468 (1980). of action has three elements: the conduct (51 We agree with Terminix that the Villaris' fraud claim cannot stand. In par ticular, the Villaris have not presented evi dence that would permit a jury reasonably to conclude that the Villaris relied on Terminix's representation that their house was now habitable and that further clean-up would be performed promptly. It appears from the evidence and from arguments of must be `extreme and outrageous,' be `in tentional or reckless,' and cause severe emotional distress." Wisniewski v. JohnsManville Corp., 812 F.2d 81, 84 (3d Cir. 1987) (quoting Chuy, 595 F.2d at 1273). As a general rule, for conduct to form the basis of a claim for intentional infliction of emotional distress, it must be "so out rageous in character, and so extreme in counsel that the Villaris, who were repre degree, as to go beyond all possible bounds sented by counsel at the time, returned to of decency, and to be regarded as atro their home because they were informed cious, and utterly intolerable in a civilized that their hotel bills would no longer be community." Restatement (Second) of paid, and that they arranged for further air Torts 46 comment d. sampling to permit them to make an inde Pennsylvania courts have held that a ten pendent assessment of the condition of ant may state a claim for intentional inflic their home. We see no basis on this record for a finding that the Villaris relied on tion of emotional distress against a land lord who breaches the implied warranty of Terminix's representations or that the Vil laris were "lulled into inaction by trick and artifice." In re Reichert Estate, 356 Pa. 269, 51 A.2d 615, 618 (1947). Even if such reliance could be demonstrated, the only harm that could be found to flow from that reliance would be exposure to heightened levels of Aldrin in April and May of 1984. habitability. See Fair v. Negley, 257 Pa. Super. 50, 390 A.2d 240 (1978); Beasley v. Freedman, 256 Pa.Super. 208, 389 A.2d 1087 (1978). In Cautilli v. GAF Corp., 531 F.Supp. 71, 75 (E.D.Pa.1982), the court not ed that "Pjandlords under Pennsylvania law occupy a special status in their rela Damages from that period of exposure tions with their tenants which imposes would, in our view, be too speculative to upon them special duties and restricts their support a claim for fraud under Pennsylva freedom of action," and predicted that nia evidentiary standards. See generally Anderson v. Liberty Lobby, 477 U.S. 242, Pennsylvania courts would not "extend the principles of Fair and Beasley beyond the 106 S.Ct 2505, 91 L.Ed.2d 202 (1986). particular context of landlord-tenant rela- .tions"--a prediction which has been borne Terminix's motion for summary judg out by subsequent developments. But the ment shall be granted as to Count X. court also suggested that "independent of V. Intentional Infliction of Emotional Distress 16} Count XI of the complaint, like the fraud count, focuses on Terminix's failure to complete the clean-up after the Villaris moved back to their residence. The Villaris allege in Count XI that this conduct consti tuted intentional infliction of emotional dis tress. the special duties and liabilities appurte nant to the landlord's status . . . [cjonduct either causing or tolerating such conditions as vermin and insect infestation and dan gerous defects in housing facilities may well establish a plausible basis on which to build a claim for intentional infliction of emotional distress." Id. at 75 n. 4. It would not seem too great an expansion of the rationale of the landlord-tenant cases to The Third Circuit has predicted that the conclude that plaintiffs might properly Pennsylvania Supreme Court will recognize state a claim for intentional infliction of the tort of intentional infliction of emotion emotional distress against one who uses al distress as set forth in section 46 of the superior economic power to force them to Restatement (Second) of Torts. Chuy v. live in a residence which is in a condition Philadelphia Eagles Football Club, 595 dangerous to their health and welfare. 9*3 F.Supp.--18 73 663 FEDERAL SUPPLEMENT Were this BBue before us on a motion to dismiss, we would hold that a proper claim had been stated. But the BBue is before us on a motion for summary judgment On the record before us, we conclude that a jury could not properly find Terminlx's con duct in and after March of 1984 sufficiently outrageous, nor the resulting emotional distress suffered by the Villari family suf ficiently severe, to support a finding of intentional infliction of emotional distress. Terminix's motion for summary judg ment shall be granted as to Count XI. VI. Punitive Damage* [71 In three count* of their complaint, the Villaris seek punitive damages. Two of these, Count X (fraud) and Count XII (in tentional Infliction of emotional distress) have. been rejected on other grounds. Count IX, captioned "Reckless and Wanton Misconduct," claims punitive damages on the ground that all of Terminix's actions were intentional, wanton, or reckless in their disregard for the rights of the Villar is. Under Martin v. Johns-Manville Carp., 508 Pa. 154, 494 A.2d 1088, 1097 (1986), a party seeking punitive damages must show not merely that the defendant failed "to appreciate the degree of risk from a known danger," but that the defendant knew the nature of the risk and deliberately acted in conscious disregard or indifference to that risk. In our view, the record before us might support the former charge, but does not support the latter. Terminix's motion for summary judg ment Bhall be granted as to Count IX. VII. Damage* for Emotional Distress [8 ] The Villaris' complaint does not con tain a count alleging negligent infliction of emotional distress, but their complaint gen erally seeks damages for emotional dis tress due to fear of the consequences of exposure to hazardous termiticideB. The parties have analyzed the claim for emo tional distress damages in terms of the tort of negligent infliction of emotional distress, and we shall do the same.1 In Cathcart v. Keene Industrial Insula tion, 824 Pa.Super. 128, 471 A.2d 498 (1984), the court rejected a claim brought by the spouse of an asbestos worker for negligent Infliction of emotional distress due to fear of contracting asbestos-related diseases in the future. The court held that no such claim could properly be brought "until [plaintiff] is able to allege some physical injury or some medically-identifiable effect linked to her exposure to asbes tos particles." 471 A.2d at 508. Because plaintiff "demonstrated no physical man ifestation of disease whatsoever," id., the claim was rejected. Similarly, the Third Circuit in Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 278 (3d Cir.1986) re jected a similar claim because, although plaintiffs alleged that they suffered head aches due to fear of cancer, "no symptoms . . . arose directly from their exposure to the asbestos itself." These courts have not required plaintiffs to demonstrate current symptoms of the particular diseases they claim to fear. Rather, they have simply required a demonstration of some physical symptoms due to exposure.4 As we observed earlier in this memoran dum, the Villaris have presented evidence that they suffered physical symptoms of 1012 3. In doing so, we do not mean to suggest that the Villaris would be entitled to damages for emotional distress on each count In which emo tional distress damages are sought, 4. In an earlier decision, P lum m er v. United States, 580 F,2d 72 {3d Cir.2976), prisoners who were exposed to a fellow inmate with tuberculo sis were permitted to recover for mental suffer ing experienced by reason of their exposure. The prisoners were able to establish their expo sure by testing positive on standard tuberculosis tests, but did not exhibit symptoms of the dis ease. If the goal of restricting actions for negligent infliction of emotional distress through a re quirement of physical corroboration is to re quire proof of exposure, P lum m er seems ade quate and Cathcart more demanding than nec essary. If, however, the purpose is to require proof that there is tome rational basis for the plaintiffs particular fears, Cathcart may not be sufficiently demanding. Although the rationale for drawing the line precisely where Cathcart draws It Is not entirely clear, we need not, on the facts of this case, determine the continued vitality of the Plum m er analysis. VILLARI v. TERMINIX INTERN., INC. Cile u M3 F.Supp. 727 (E-D.Pa. 1987) 735 exposure to Aldrin in the month after the Terminix's contention that their minor chil spill. As a result, we conclude that they dren must be dismissed from this action. may pursue claims for emotional distress damages where such claims are otherwise appropriate. In sum, Terminix's motion for partial summary judgment shall be granted in part and denied in part. An appropriate order is appended. VIII. Cosfs of Future Medical Monitor- ing Paragraph G of the Villaris' request for relief asks this court to "establish a con structive trust in favor of Plaintiffs in an amount sufficient to pay the cost of medi cal detection and medical monitoring." As the Villaris now recognize, their request for such equitable relief is properly under stood as a request for damages for future medical monitoring. See Peterman v. Te- ORDER For the reasons set forth in the accompa nying Memorandum, it is hereby OR DERED and DIRECTED that defendant's motion for partial summary judgment is GRANTED IN PART AND DENIED IN PART. Defendant's motion for partial summary judgment is GRANTED as to the following counts and requests for relief: ckalloy Co., Inc., 29 Pa.D. & C.3d 104, 110 (1) Count VI (strict liability for the oper (1982). ation of an ultrahazardous activity); 19) Under Pennsylvania law, a plaintiff seeking costs of medical surveillance as an element of damages must demonstrate that she has suffered some physical injury. See Greenberg v. McCabe, 453 F.Supp. 765, 773 (E.D.Pa.1978), affd mem., 594 F.2d 854 (3d Cir.1979); Peterman, supra, 29 Pa.D. & C.3d at 110.* However, we do not under stand Pennsylvania law to require that a plaintiff exhibit symptoms of the particular diseases for which medical surveillance is sought. We have found that there is suffi cient medical evidence on record to permit a jury to conclude that the Villaris suffered physical injury from Aldrin exposure in the month following the spill. We conclude that the same evidence supports a claim for the costs of future medical surveillance.* (2) Count VIII (nuisance), and request for relief E (abatement of nuisance); (3) Count IX (reckless and wanton mis conduct), and request for relief B (punitive damages); (4) Count X (fraud and fraudulent mis representation), and request for relief C (punitive damages); (6) Count XI (intentional infliction of emotional distress), and request for relief D (punitive damages). Defendant's motion for partial summary judgment is DENIED in all other respects. (p | n r NL'MBi* SYSTEM> IX. Claims of Minor Plaintiffs Because the Villaris have presented evi dence that their children suffered physical injury due to Aldrin exposure, we reject 5. The Villaris urge this court to predict that the Pennsylvania Supreme Court will follow Ayers v. Township o f Jackson, 189 NJ.Super. 561, 461 A.2d 184 (1983), vacatesi on other grounds, 202 NJ-Super. 106, 493 A.2d 1314 (1985), and hold that the cost of future medical monitoring is a proper element of damages whenever medical testimony establishes the need for future moni toring. The Villaris have offered no basis Tor this prediction in decided Pennsylvania cases, and we see none. 6. At trial, the Villaris will also have to "demon strate the probability . . . that the treatment will be performed as well as the fact of the Injury itself." Greenberg, supra, 453 F.Supp. at 773. We are not prepared to take as conclusive against the Villaris that they have not yet estab lished a program of medical monitoring.  ) .I ? :t ; '. f > it i- Z 3 :> > > A c 1 0 1 3 'Q-io^ 930 909 FEDERAL REPORTER, 2d SERIES . i36y. The village then filed this timely appeal. For the reasons that follow, we affirm. .. I. tors with decals that indicate the date the pesticides were applied. The decals r n ^ t be posted at the building entrances untij ; the time of the next application or ninety days, whichever occurs first. A. Defendant-appellant Village of Milford is a political subdivision of the State of Michi gan. Plaintiff-appellee Professional Lawn Care Association of America is a national organization that represents approximately 1,400 commercial lawn care companies, in cluding seven that are located in the vil lage. On January 27, 1986, the village enacted Ordinance No. 197, entitled . AN ORDINANCE TO PROVIDE FOR THE PUBLIC HEALTH AND SAFETY BY REQUIRING REGISTRATION OF PERSONS APPLYING PESTICIDES FOR HIRE WITHIN THE VILLAGE OF MILFORD AND PUBLIC NOTICE OF THE USE OF PESTICIDES; TO PRO VIDE THE PUBLIC THE OPPORTUNI TY OF AVOIDING CONTACT WITH THESE PESTICIDES: AND TO IDEN TIFY THE LOCATION OF FLAMMA BLE PESTICIDES. The ordinance defines a "user of pesti cide" as: (1) Any person who applies or causes pesticides to be applied to property by any means where such person is engaged in applying pesticides for hire to trees, lawns, shrubs, plants, or the atmosphere; or (2) Any person who applies or causes pesticides to be applied in commercial businesses and public buildings. The ordinance requires all users of pesti cides who use and apply pesticides for hire within the village to register with the vil lage and pay an annual registration, fee of $15.00. Users of pesticides who store, mix or otherwise handle pesticides within the village must provide the village fire depart ment with a copy of their registration forms. The ordinance requires users who apply pesticides to commercial businesses or pub lic buildings to supply the building opera- Village residents whose physicians de clare them to be "sensitive" to pesticides may, for an annual fee of $15.00, be placed ' upon the village's list of chemically sensi-. live residents. The village updates the list . monthly. The ordinance requires all com- : mercial users of pesticides to obtain current copies of the list and to notify t},e chemically sensitive residents at least twen ty-four hours in advance of an outdoor application. The ordinance permits written notice where oral notice is not possible. In: addition, users of pesticides must also place' yard markers containing the words "Chem-: ically Treated Lawn--Keep Children and Pets Off for 72 Hours" on the property where an outdoor application has been made. The ordinance provides that viola tions of its terms shall be penalized by! assessments of fines ranging from $25 to $100, depending upon the number and type of violations. The association initiated this action by filing a complaint seeking declaratory and injunctive relief on May 5, 1989. The asso ciation alleged that FIFRA preempts the: local regulation of pesticides, such as Ordi nance No. 197. The village answered thecomplaint on June 5, 1989, and soon there after the parties filed cross-motions for summary judgment. On August 24, 1989, in a ruling from the bench, the district court granted the associ ation's motion for summary judgment and. enjoined the village from enforcing Ordi nance No. 197. The district court filed an order memorializing its decision on Septem-. ber 15, 1989. FIFRA was originally enacted in 1947 as- a pesticide labeling statu te. See Ruckdshaus v. Monsanto Co., 467 U.S. 986, 991, 104 S.Ct. 2862, 2866-67, 81 L.Ed.2d 815 (1984). In 1972, in response to concerns about the safety of pesticide use, and "be-- PROFESSIONAL LAWN CARE ASS'N v. VILLAGE OF MILFORD Clle as 909 F.2d 929 (6th Clr. 1990) FfcaUse' of a growing perception that the suit, commercial pesticide applicators are ^existing legislation was not equal to the subject to extensive federal and state regu task of safeguarding the public interest," lation in Michigan. `at 991- 92, 104 S.Ct. at 2867, Congress Ssj'rewrote FIFRA through amendments that transformed it into a comprehensive regu latory statute. See id. As amended, FIsSfRA',' "establishe[d] an elaborate frameS work for the regulation of pesticide use in the United States." Love v. Thomas, 858 *F 2d 1347, 1350 (9th Cir.1988), cert, denied; ^ .U .S ..----- - 109 S.Ct.1932, 104 L.Ed.2d J p 453 (1989); see also Defenders of Wildlife <av> Administrator, EPA, 882 F.2d 1294, s | | s | l296 (8th Cir.1989). In making its decision, the district court turned first to FIFRA's legislative history, which reveals that the pesticide legislation President Nixon proposed in 1971 included provisions that expressly gave local governments the power to regulate pesti cides and their use. However, nearly ev ery congressional committee that passed on the proposed legislation deleted those pro visions in the belief that the state and the federal governments could regulate pesti cides adequately without subjecting the contemplates various levels of in pesticide industry to thousands of regula teraction between the federal, state and tory jurisdictions. See Maryland Pest S-l local governments in the regulation of pes- Control Ass'n v. Montgomery County, git-v ticides and their use. FIFRA defines a Maryland, 646 F.Supp. 109, 111-13 (D.Md. %p:"*tate'.' as "a State, the District of Colum- 1986), affd without published opinion, bia, the Commonwealth of Puerto Rico, the 822 F.2d 55 (4th Cir.1987), further related Virgin Islands, Guam, the Trust Territory of. the Pacific Islands, and American Sa, moa." . 7 U.S.C. 13G(aa). FIFRA does not define "political subdivisions" or "local authorities." Some sections of FIFRA, ISgiy, however, refer explicitly to "political subdivisions" and "local agencies" as distinct from "states." See 7 U.S.C. 136f(b); l3Gr(h); 136t(b). proceedings, 884 F.2d 160 (4th Cir.1989) (per curiam) ("Maryland Pest Control "). As a result, the legislation that Congress enacted contained no provisions granting local governments the power to regulate pesticides and their use. The district court concluded that when Congress amended FI FRA in 1972, it occupied the entire field of the regulation of pesticides "and then it >,-*!$ f FIFRA expressly permits states to regu- specifically gave states [and not their politi i ^ S l i . latc the use of federally registered pesti- cal subdivisions] the right to operate within IwiSfe.cides, "but only if and to the extent the the f i e l d ...." J.A. 33. ,,regulation does not permit any sale or use ?.' prohibited by" the federal statute. 7 . U.S.C. 136v *. FIFRA does not contain '"`^1 any Provisions that authorize or prohibit political subdivisions or local authorities from regulating pesticides or their use. The district court also noted that the question of the preemption of local regula tions of pesticides and their use had been decided in two reported opinions, with each court reaching different results. The Unit ed States District Court for the District of Pursuant to the grant in section 13Gv, Maryland found a county ordinance nearly jfXEv the State of Michigan enacted the Pesticide identical to the village's to be preempted in Control Act of 1976. Mich.Comp.Laws Maryland Pest Control, while the Califor Ann. 286.551--.581. The state largely nia Supreme Court found a voter-enacted .. . a<lopted the federal standards, including ban on the aerial application of certain pes FIFRA's certification standards for com- ticides not to be preempted. See People ex C mercial applicators of pesticides. As a re- rel. Deukmejianv. County of Mendocino, 116v Authority of Stales J-: l a) In general , A State may regulate the sale or use of any federally registered pesticide or device in the Suite, but only if and to the extent the regula tion docs not permit any sale or use prohibit* ed by this subchapter. (b) Uniformity Such State shall not Impose or continue in effect any requirements for labeling or pack aging in addition to or tliffcicnl ft out those required under this subchapter. 9 3 2 . 909 FEDERAL REPORTER, 2d SERIES j Ca).3d 476, 683 P.2d 1150, 204 Cal.Rptr. 897 (1984) ("Mendocino Comity").1 The district court adopted the analysis in Mary land Pest Control and concluded that FI- [2, 3] Absent express language to the contrary, there is ordinarily a presumption against preemption, Maryland v. Louisi ana, 451 U.S. 725, 746, 101 S.Ct. 21H FRA preempted Ordinance No. 197. 2128-29, 68 L.Ed.2d 576 (1981), especially when the challenged state or local rtgulaII. tion concerns state or local health and safe- A. ty matters. See Hillsborough County, 47j (I] In determining whether Congress U.S. at 715, 105 S.Ct. at 2376. However, has exercised its power to preempt state or the failure of a federal statute to speak local regulations, we give primary empha directly to preemption does not necessarily sis to ascertaining the congressional intent create a gap for state or local regulation underlying the statute in question. See R. See Adams Fruit Co. v. Barrett, -- U.S J. Reynolds Tobacco Co. v. Durham Coun ----- ; 110 S.Ct. 1384, 1390-91, 108 L.Ed.2d ty, North Carolina, 479 U.S. 130, 140, 107 585 (1990). S.Ct. 499, 506-07, 93 L.Ed.2d 449 (1986). Congress may preempt a state or local law expressly or by passing a statute that is B. "sufficiently comprehensive to make rea [4,5] The village claims that the district sonable the inference that Congress 'left no court's analysis was off-target because Or room' for supplementary . . . regulation." dinance No. 197 does not regulate pesti Hillsborough County, Florida v. Auto cides or their use, but is merely a "public mated Med. Labs., Inc., 471 U.S. 707, 713, notice regulation" designed to protect the 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985) health and safety of village residents. We (quoting Rice v. Santa Fe Elevator Corp., cannot agree because the unambiguous lan 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 guage of the ordinance imposes require L.Ed. 1447 (1947)). Where the federal stat ments that pesticide users must fulfill, and ute is not so large that it occupies the practices they must follow, before and af entire field, state and local law may still be ter applying pesticides. By its plain terms,: preempted where it conflicts with the fed the ordinance regulates "users of pesti eral law by standing as an obstacle to cides," the application of pesticides, and Congress' purposes* see Schneidewind v. conduct that concerns the application and ANR Pipeline Co., 485 U.S. 293, 300-02, use of pesticides.3 Therefore, we conclude 108 S.Ct. 1145, 1151, 99 L.Ed.2d 316 (1989), that Ordinance No. 197 is an attempt by a or where " 'the federal interest is so domi local government to regulate pesticides and nant that the federal system will be as their use. See Maryland Pest Control,' sumed to preclude enforcement of state [or 646 F.Supp. at 113; see also New York local] laws on the same subject.' " Hills State Pesticide Coalition, Inc. v. Jotting, borough County, 471 U.S. at 713, 105 S.Ct. 874 F.2d 115, 117 (2d Cir.1989) (state public at 2375 (quoting Rice, 331 U.S. at 230, 67 notice requirement held to be a permissible S.Ct. at 1152). sale and use regulation). 2. The Wisconsin Supreme Court recently fol lowed Maryland Pest Control, see Mortier v. Town o f Casey, 154 Wis.2d 18, 452 N.W.2d 555 (1990), while the Supreme Judicial Court of Maine recently followed Mendocino County, see Central Maine Power Co. V. Town of Lebanon, 571 A.2d 1189 (Me.1990). 3. Determination of the meaning of a statute begins with the plain language of the statute itself. See United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, -- 109 S.Ct. 1025, 1030, 103 L-Ed.2d 290 (1989); Bradley v. Amlin, 841 F.2d 1288, 1293 (6th Cir.1988). Because "use'' and "apply" are not defined by the ordinance, we interpret them "as taking their ordinary, con: temporary, common meaning!si." Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979). Definitions of "apply" include "to put to use especially for some prac* tical purpose" and "to ... lay or spread on, , Webster's Third New International Dictionary 105 (1981), while definitions of the noun "use include "a method or manner of using some thing" and "the privilege fr benefit of 'using something." Id. at 2523. PROFESSIONAL LAWN CARE ASSN v. VILLAGE OF MILFORD Cite as 909 F.2d 929 (6th Clr. 1990) ' 33 tent to erect a broad federal regulatory F1FRA does not preempt the village ordihinci by its express terms, which leaves resolution of this issue to a determination of whether Congress has preempted local regulation by implication. We are urged by the parties to join with the Wisconsin Supreme Court in adopting the rationale of framework. Id. The district court also found that legislative history demonstrated that both houses of Congress specifically considered, and specifically rejected, Presi dent Nixon's proposed provisions that would have allowed for local regulation of pesticides and their use. Id. at 111-13. Maryland Pest Control, see Mortier v. Town of Casey, 154 Wis.2d 18, 452 N.W.2d , 555 (1990), or to adopt the opposing view and join the Supreme Judicial Court of f Maine in following Mendocino County, see i Central Maine Power Co. v. Town of LebJ anon, 571 A.2d 1189 (Me.1990). In Mendocino County, the California Supreme Court found that because FIFRA contemplates various levels of state and local interaction. Congress did not occupy 1the entire field, but merely joined the state and local governments in pesticide regula tion.: The court emphasized FIFRA's failS?ure to limit the states' ability to delegate S their authority to political subdivisions and the traditional regulatory powers of state \ and local governments.4 The court congVeluded that as political subdivisions of ^ states, local governments could regulate pesticide use. The court also reviewed FIFRA's legislative history and failed to find [6] Our analysis of FIFRA and its legis lative history leads us to conclude that when Congress rewrote the statute, it im pliedly preempted the local regulation of pesticides, including Ordinance No. 197. It is well-established that the starting point in preemption analysis is congressional intent, and it is undisputed that the intent behind the 1972 amendments was to enact sweep ing federal pesticide regulation. Congress transformed FIFRA into a statute that cast a regulatory net over pesticides and their use, in part by giving the EPA enforcement authority over the use, sale and labeling of pesticides. When seen in this context, the Mendocino County view that Congress only entered the field of pesticide regula tion already occupied by state and local governments is, at best, strikingly incon sistent with the undisputed legislative in tent. & any express indications that Congress intended to deny local governments the power to regulate pesticide use. i n In Maryland Pest Control, the district Moreover, Mendocino County ignores the distinctions Congress drew in the ex press terms of the legislation. FIFRA con tains several provisions that expressly re Lcourt, concluded that through the 1972 fer to political subdivisions and local au A, amendments to FIFRA, Congress intended thorities as distinct from state govern to enact, and did enact, a comprehensive ments and agencies. Additionally, Con A' statute that occupied the field of pesticide gress did not include political subdivisions regulation. 646 F.Supp. at 110. The court in its definition of "states." See 7 U.S.C. ' found that by its terms, FIFRA opened 136(aa). Where, as here, " `Congress in \ specific portions of the field to state regu- cludes particular language in one section of i lation and much smaller portions to local a statute but omits it in another section of Regulation. Id. at 111. The district court the same Act, it is generally presumed that concluded that if it were to ignore the Congress aetjed] intentionally and purpose- . in distinctions Congress drew between states ly in the disparate inclusion or exclusion.' " fSnd their political subdivisions, it would Russello v. United States, 464 U.S. 16, 23, .. needlessly render vast portions of the stat- 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983) ^.ute superfluous and ignore Congress' in- (quoting United Slates v. Wong Kim Bo, .. 4- Notably, a year after M e n d o c in o C o u n ty waS' decided, the United States Supreme Court held . Ihat Congress could control the stales and regu late in arcas that were previously thought to be ` insulated from a federal regulation because they were "traditional" areas of stale and local eontrol. S e e G a r c ia v. S a n A n t o n i o M e tr o . T r a n s it A itth ., 169 U .S. 528, 546-47, 105 S.Ct. 1005, 1015-16, 83 L.Ed.2d 1016 (1985). PROFESSIONAL LAWN CARE ASS'N v. VILLAGE OF MILFORD 9 3 " c u e Be 909 F.2d 929 (6th Clr. 1990) 47' F.2d 720, 722 (5th Cir.1972)); see also h v. Johns-Manville Sales Corp., 710 i .-a 1194, 1197 (6th Cir.1983). ("It is a fundamental rule of statutory construction that inclusion in one part of a congressional scheme of that which is excluded in another part reflects a congressional intent that the exclusion was not inadvertent."). m authorities of the power to regulate p e stjl^ s cide use. See Maryland Pest Control, 646 F.Supp. at 112-13. V ,;: In the absence of explicit statutory Ian! guage, there is a presumption against "the preemption of local police powers. See Ma f a t i c a i subdivisions pursuant to authority In ferred by state statute or state constitu tional provision. W-Th'd legislative history, on the other suggests about as strongly as it posjfsibly could that Congress did indeed intend $3 to keep the field of pesticide regulation ? clear of local ordinances. I would have felt face, exclude a state's political subo sions. In declaring that "[a] State may regulate the sale or use of any federally registered pesticide," similarly, 24 of the Act says nothing about the agency or agencies through which the power of the state may be exercised. There is a sharp contrast, in this respect, between 24 and 4(a)(2), a State law is preempted where it "stands ryland v. Louisiana, 451 U.S. 725, 746 s | more comfortable about carrying out this section dealing with certification of compe as an obstacle to the accomplishment of the 101 S.Ct. 2114, 2128-29, 68 L.Ed.2d 57$ jp intent if Congress had done a better job of tency in pesticide use and handling. The full purposes and objectives of Congress." (1981). However, that presumption doei ^writing it into the law. I conclude, how- latter section, as currently codified at 7 Sckneidetvind, 485 U.S. at 300, 108 S.Ct. at not stand unrebutted merely because Coni fever, as the other members of the panel U.S.C. 136i(a)(2), provides in part as fol 1151. As the district court pointed out, gress failed to include a provision that ex have done, that the Village of Milford's lows: adoption of the Mendocino Counly view pressly preempted state law. See Adams ..^ordinance cannot be permitted to stand. I "If any State, at any time, desires to would allow the uniformity and comprehen Fruit Company v. Barrett, -- U.S.-----, M . write separately because my reasoning dif- certify applicators of pesticides, the Gov r, siveness Congress sought to establish 110 S.Ct. 1384, 1390-91, 108 L.Ed.2d 585 hi*/* through FIFRA to be lost in the muddle of (1990). In this case, the presumption fers somewhat from that of my colleagues and because this case presents an impor ernor of such State shall submit a State plan for such purpose. The Administra thousands of local standards and regula against preemption is overcome because l i ! tant. question the proper resolution of tor shall approve the plan submitted by tions. FIFRA would no longer stand as a FIFRA, as amended in 1972 and thereafter, Jk which is by no means free of doubt. any State, or any modification thereof, if j sweeping federal regulatory framework is "sufficiently comprehensive to make rea but would become the lowest common de sonable the inference that Congress 'left no such plan in his judgment-- (a) designates a. Stale agency as the 1'"W V W 4 nominator in an equation of infinite varia room' for supplementary . . . regulation." bles. Hillsborough County, 471 U.S. at 713, 105 [7] Courts need only to examine the S.Ct. at 2375. Moreover, the statutory lan legislative history of a statute when its guage and the fundamental rules of statu terms are ambiguous or where enforce tory interpretation make it clear that Con ment of the plain terms of the statute gress intentionally omitted states' political would "produce a result demonstrably at subdivisions from the section 136v grant of odds with the intention of [the statute's] drafters." . Ron Pair Enterprises, 109 authority to regulate pesticides, and the legislative history demonstrates that Con S.Ct. at 1031 (quoting Griffin v. Oceanic gress positively rejected the proposal to Contractors, Inc., 458 U.S. 564, 571, 102 make room for local governments in the S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)). In field of pesticide regulation. this case, the district court reviewed the Accordingly, for the foregoing reasons, legislative history of the 1972 amendments the judgment of the district court is AF and adopted the analysis in Maryland Pest FIRMED. Control. We, too, agree with the Mary land Pest Control analysis, and also with DAVID A. NELSON, Circuit Judge, Judge Kaus, who dissented from Mendoci concurring. no County in part because he found the The starting point in any analysis of th decision was "based on an untenable read preemptive effect of an Act of Congress, it ing of the legislative record." Mendocino seems to me, must be the language of the County, 204 Cal.Rptr. at 911, 683 P.2d at act itself. The language of the act that is 1164 (Kaus, J., dissenting). The lengthy before us in this case manifests a clear history of the 1972 amendments to FIFRA intent not to preempt all state regulation demonstrates that both houses of Congress of the use of pesticides. State regulation is positively rejected President Nixon's pro often effected through locally adopted ordi posal that local governments be permitted nances, of course, and insofar as the type to regulate pesticides and their U6e. In of pesticide regulation at issue here is con addition, as noted in Maryland Pest Con cerned, the statutory language does not trol, several of the committee reports ex necessarily indicate that Congress intended plicitly stated an intent to deprive local to rule out ordinances adopted by state . The Federal Environmental Pesticide Control Act of 1972, Pub.L. No. 92-516, 89 agency responsible for administering the plan throughout the S tale___" f i HP- 978, amended the Federal Insecticide, (Emphasis supplied.) Fungicide and Rodenticide Act (now codi- The Act imposes no corresponding require Tied at 7 U-S.C. 136 et seq.) to create a ments with respect to the type of regula comprehensive system for regulating both tions at issue in this case, which involve interstate and intrastate distribution and registration and notice but do not involve use of pesticides. The 1972 legislation was competency certification. Absent any such not intended to occupy the field totally; in requirements, it would not be unreasonable jg.i its present form, 24(a) of the Act ex- to suppose that states are free to exercise pressly declares that "[a] State may regu their power outside the area of competency late the sale or use of any federally reg- certification through whatever mechanism istered pesticide or device in the State, but might seem most expedient to them. only if and to the extent the regulation Municipal bodies are "essentially crea M ' does not permit any sa`le or use prohibited by this A c t ...." 7 U.S.C. 136v(a). tures of the state." South Macomb Dis posal Authority v. Township of Washing (1 1 For purposes of the Act, the term "State" is defined as meaning what it says --"a State"--plus the District of Columbia and Puerto Rico, along with the Virgin Islands, Guam, the Trust Territory of the Pacific Islands, and American Samoa. Sec ton, 790 F.2d 500, 507 (6th Cir.1986) (Engel, J., concurring). They are "created as con venient agencies for exercising such of the governmental powers of the State as may be entrusted to them." Kelley v. Board of Educ. of Nashville & Davidson County, 836 F.2d 986, 994 (6th Cir.1987) (quoting tion 2(aa) of the Act, 7 U.S.C. 136(aa).' The statutory definition does not, on its Hunter v. Pittsburgh, 207 U.S. 161, 178, 28 ftgfy I- In a fetter sent to the Chairman of the Senate Commerce Committee before enactment of the .legislation, the General Counsel of the Treasury Department. Mr. Samuel Pierce, pointed out that litis definition "would extend the coverage of the Act to a geographical area greater than that comprising the Customs territory of the United States....'' S.Rep. No. 516, 92d Cong., 2d Sess., r e p r i n t e d fit 1 9 7 2 U .S .C o d e Cong. & Admin.News 3993, 4 0 9 2 , 4 1 2 9 . Mr. Pierce rec ommended a d e t i n i t i o n c o n fi n e d to the several stales, the District of Columbia, and Puerto Rico, but his recommendation was not adopted. PMJH'i Vi f iyr lit i i i k; m M! :l!|J<b |'?h A JoKj S 0, 46, 52 L.Ed. 151 (1907)), cert, de.. j, 487 U.S. 1206, 108 S.Ct. 2848, 101 L.Ed.2d 885 (1988). If the State of Michi gan has retained the power to impose regis tration and notice requirements on commer cial users of pesticides, therefore, one would normally assume that the state could authorize the exercise of that power through whatever political subdivision it wished. it- It is undisputed that under the "home rule" provisions of the Michigan constitu-. tion, the Village of Milford has sweeping power to adopt ordinances relating to pub lic health and other matters of municipal concern. See Mich. Const., Art VII, 22. When the predecessor of Michigan's cur rent constitution was adopted in 1908, "very broad, general powers of govern ment were consigned to those units of government likely to be best informed of local needs and best able to satisfy them___" Dooley v. City of Detroit, 370 Mich. 194, 121 N.W.2d 724, .730 (1963). That allocation of powers was continued when Michigan's current constitution was passed directly by the legislature 4^ signed by the governor. It is true that municipalities are not specifically mcn.. tioned in the definition section of the Pesti cide Control Act, but state governors and state legislatures are not specifically men. tioned in that section either. .j There are three sections of the Pesticide' Control Act in which Congress did refer; specifically to political subdivisions or local agencies. It has been argued, therefore that "when Congress intended that local, governments play a role in [the Act's] regu-' latory scheme, it specifically said so." ,lfnryland Pest Control Ass'n v. Montgomery County, 646 F.Supp. 109, 111 (D.Md.1986) (quoting 70 Ops.Atty.Gen. Md. 161 (1985)), affd, 822 F.2d 55 (4th Cir.1987) (unpub-' lished op.). The argument, it seems to me, is not persuasive. The first section of the Act to refer spe cifically to political subdivisions is 8 (7 U.S.C. 136f), which deals with the main tenance and inspection of books and records. Section 8(a) authorizes the Ad adopted in 1963--and villages were among ministrator of the Environmental Protec-' the units of government to which very tion Agency to require pesticide manufac broad powers were assigned. Incorporated turers to maintain records of their opera villages, the Michigan legislature has con tions, and 8(b) says that manufacturers firmed, possess the authority to pass such shall produce such records for inspection ordinances as they may deem proper to "upon request of any officer or employee "preserve the public health," among other of the Environmental Protection Agency or things, and to "make such other regula of any State or political subdivision, duly tions for the safety and good government designated by the Administrator__ " 7 of the village and the general welfare of its U.S.C. 136f(b) (emphasis supplied). The inhabitants as are not inconsistent with the authority of the EPA Administrator to des general laws___" Mich.Comp.Laws ignate such officials is conferred by 23(a) 67.1. See also Michigan's "Village Home of the Act, which authorizes the Adminis Rule Act," Mich.Comp.Laws 78.1 et seq. trator to enter into cooperative agreements Because the State of Michigan has thus clearly authorized ordinances such as that enacted by the Village of Milford, there is a very real sense in which the Milford ordi nance represents "state" action within the with "States" to "delegate to any Stale the authority to cooperate in the enforcement of the Act through the use of its person-1 n e l... . " 7 U.S.C. 136u(a) (emphasis sup plied).2 Section 23 of the Act necessarily territorial limits of the village. The results uses the word "State" to include political of this state action are no different in kind subdivisions, for it would not otherwise be from those that would have been produced appropriate to speak of political subdivi had Michigan chosen to regulate pesticide sions in 8. And if "State" includes politi usage in the village through a statute cal subdivisions in 23 of the Act, it can 2. This section was amended in 1978 to include Indian tribes as well as states. Pub.I- \'o. 95- 396. 21, 92 Slat. 834 (1978). i Uv Cileas909 F.2d 929 (6thClr. 1990) lardl be a forgone conclusion that "State" greatest responsibility for shaping 'does not include political subdivisions in terms, understood that it was dsignt j 24 of the Act as well. do precisely that. Most Members of Con I 3Th next section of the Act to refer spe cifica lly to political subdivisions is 20 (7 ? .S.C. 136r), which mandates cooperation i-ith local agencies in connection with re search and monitoring. Section 20(b) di- gress, to be sure, probably never focused on the issue at all. The Members on whom the rank and file were relying to hammer out an acceptable bill did focus on th issue, however, and evidently made a con ? rects the Administrator to formulate a na- scious decision that regulation by political ' tional plan, "in connection with other Fed- subdivisions should be preempted. That ` eral. State or local agencies," for monitor- decision was not solely the work of anony H i ihg pesticides. Section 20(c) directs the mous staffers, and it was not slipped into Administrator to undertake monitoring ac- the legislative history at the last minute-- j|v tivities, again in cooperation with other fed- or, as sometimes happens, after the last ral, state or local agencies. minute. The decision was made well in Section 22(b), finally, contains a more advance of enactment of the legislation, it S p i generalized directive for the Administrator was known to and accepted by the mem (o cooperate with local agencies, inter alia: bers of the responsible committees, and it "The Administrator shall cooperate with was openly explained prior to enactment. ' the Department of Agriculture, any oth er Federal agency, and any appropriate agency of any State or any political sub division thereof, in carrying out the pro visions of this Act, and in securing uni formity of regulations." 7 U.S.C.' I36t(b). ' These statutory directives for the Admin istrator to cooperate with appropriate local officials and political subdivisions shed lit tle or no light on the question whether pesticides may be regulated by local ordi nance. A mandate for the Administrator to cooperate with political subdivisions is certainly no less consistent with the conclu sion that states may confer a regulatory role on their political subdivisions than it is with the conclusion that they may not. President Nixon's original proposal for the legislation that became the 1972 Pesti cide Control Act said explicitly that "noth ing in this Act shall be construed as limit ing the authority of a State or a political subdivision thereof to regulate the sale or use of a pesticide within its jurisdiction insofar as such regulation does hot permit such sale or use as is prohibited under authority of the Act." H.R. 4152, 92d Cong., 1st Sess. 19(c)c (1971), as quoted in Maryland Pest Control Asshi, 646 F.Supp. at 111-12. (Emphasis supplied.) The House Agriculture Committee, which was the first committee to report the legis lation out, not only deleted this reference to political subdivisions,3 but would also have prohibited the states themselves from \n ' If the Act itself does not plainly show that Congress intended to preclude states from regulating through their political sub divisions, the amendments, committee re restricting the use of any pesticide that the Administrator of the EPA had registered with a "general use" classification: "A State may regulate the sale or use of any pesticide or device in the State, but ports and floor debates comprising the leg only if and to the extent the regulation islative history of the enactment demon strate almost conclusively, I believe, that those who were most knowledgeable about this piece of legislation, and who had the does not permit any sale or use prohibit ed by this Act or restrict by license or permit the use of a pesticide registered for general use." 24(a) of H.R. 10729, 3. . The accompanying report explained that "The , Committee rejected a proposal which would have permitted political subdivisions to further regulate pesticides on the grounds that the so States and the Federal Government should pro vide an adequate number of regulatory jurisdic tions." H.R.Rep. No. 511, 92d Cong., 1st Sess. 16 (1971). r "ong., 1st Sess., 117 Cong.Rec. 40,,..l .971). (Emphasis supplied.) i . . In the ensuing debate on the House floor, Congressman Dow offered a substi tute bill containing six amendments, the last of which dealt with 24(a). Congress man Dow did not propose to. restore the language authorizing regulation by polith cal subdivisions; he simply proposed strik ing the prohibition. against states going further than the federal government in re stricting pesticides registered for general use... 117 Cong.Rec. 40,034 (1971). Mr. Dow noted that state officials from ten states, including Michigan, had expressed "opposition to the preemption of State au thority authorized by section 24." Id. at 40,035. No such opposition was noted with regard to the change the Agriculture Com mittee had made concerning political subdi visions. .;.- The Dow substitute was ultimately de feated, but on motion of Congressman Kyi, and with the support of Chairman Poage of the Agriculture Committee, 24(a) was amended on the House floor to drop the restriction to which Congressman Dow and others had objected. Id. at 40,065. The amended, version of that bill--which re flected a number of changes made in com mittee, as well as the one change made on the House floor--was hailed as "the com promise product of environmentalists, farm groups, State and Federal officials, the chemical industry, and the public." Id., remarks of Congressman Sebelius. ; On the Senate side the legislation was considered first by the Committee of Agri culture and Forestry and then by the Com merce Committee. 118 Cong.Rec. 32,251 (1972). Under date of June 7, 1972, the former committee issued a report contain ing this highly instructive passage: "The Senate Committee considered the decision of the House Committee to deprive political subdivisions of States . and other local authorities of any au thority or jurisdiction over pesticides and concurs with the decision of the House of Representatives. Clearly, the fifty States and the Federal Government H *1 provide sufficient jurisdictions to proper ly regulate pesticides. Moreover, few, f - any; local authorities whether towns,counties, villages, or municipalities have . the financial wherewithal to provide nec-. - essary expert regulation comparable . with that provided by the State and Fed, eral Governments. On this basis and on ' the basis that permitting such regulation would be, an extreme burden on inter state commerce, it is the intent that . section 2k, by not providing any au thority. to political subdivisions and other local authorities of or in the Stales, should be understood as depriv ing such local authorities and political subdivisions of any and all jurisdiction and authority over pesticides and the regulation of pesticides." S.Rep. No; 838, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Admin.News 3993, 4008. (Emphasis supplied.) The Senate Commerce Committee disa greed with the Agriculture Committee on this and a number of other issues. The Commerce Committee adopted 15 sets of amendments to the Agriculture Commit tee's version of the bill, one of which (Amendment No. 10) was explained thus ina report issued by the Commerce Commit tee under date of July 19, 1972: "Authority of Local Governments to : Regulate the Use of Pesticides - The amendment gives local govern ments the authority to regulate the sale or use of pesticide beyond the require ments imposed by State and Federal au thorities. While the Agriculture Committee bill does not specifically prohibit local governments from regulating pesticides, the report of that committee states ex-, plicitly that local governments cannot regulate pesticides in any manner., Many local governments now regulate, pesticides to meet their own specific needs which they are often better able to, perceive than are State and Federal regu-, lators. The amendment of the Commit tee on Commerce is intended to continue the authority of such local governments and allow then to protect their environ- ^'ment to a greater degree than would 8LEPA.''V;' ' i i The amended language would prohibit 'local-:' governments from imposing re quirements as to labeling and packaging ^ which differ from those imposed by Fed eral' and State authorities. Localities .would therefore be preempted from reg e la t in g the composition of any pesticide, gg Local governments could, however, prohibil of restrict the sale or use of pesti c id e s within their jurisdiction. As manu mit facturers will not be forced to formulate different variations of the same pesticide to meet local needs, no unreasonable burX j dens on commerce are anticipated. Nor Ijf are burdens on the environment, since hj: localities could not permit sales or uses Tj prohibited by State and Federal authorities."' S.Rep.No. 970, 92d Cong., 2d .li* Sess., reprinted in 1972 U.S. Code Cong. I?f 'Admin. News 4092, 4111--12. -`A fter issuance of this report, the two committees and their staffs engaged in ex tensive negotiations and ultimately worked , out a compromise bill. 118 Cong.Rec. 32,251 (1972). The compromise--which was supported by all of the members of the Agriculture Committee and a majority of the members of the Commerce Committee, ,including Senator Hart of Michigan, id. at 32,252--incorporated nine of the Commerce Committee changes, with modifications, but did. not include Amendment No. 10. An explanation of the compromise printed in the, Congressional Record for September 26, 1972, described the amendments that had been adopted and noted that "Com merce Committee amendments . . . 10 (au thority of local governments to. regulate the use of pesticides) . . . are hot included in the substitute." Id. at 32,258. ..Senator Hart, inserted a statement in the record supporting the compromise.. Id. at 32,258. Several of. Senator Hart's col leagues took note of the long hours he personally had spent on the legislation. Id. . at 32,259-60. . Senator Allen, the Agriculture subcom mittee chairman responsible for the management of the bill on the floor, ex pressed himself on the compromise as lollows: "The package of amendments riov, fore us reflect a reasonable compromise : agreement between the Agriculture Com mitted and the Commerce Committee. Each participant in this agreement may have some reservations about particular provisions that have been added or about particular provisions that have been de leted. ' No one should have any doubt, how ever, that this agreement marks a major and significant improvement over present authority to control pesticides. No one should have any doubts about the concern for environmental quality which is expressed in this bill with the addition of the Agriculture/Commerce package of amendments.", Id. at 32,260. The Senate passed the compromise by a vote of 71 to 0.' Id. at 32,263. Section 24 was exactly th same in both the Senate and House bills, and no changes were made in that section when the bills went to the conference committee. The conference re port was passed by both houses without further discussion of the regulatory au thority of local governments. The view of the House and Senate Agriculture Commit tees on that issue'prevailed, and the view of the administration and th Senate Com merce Committee did not. The appellants in this cas argue that because the dispute over premption of lo cal regulatory authority was' compromised by not specifically referring to this subject in the statute, the compromise was not designed to preempt traditional local police powers or to preempt the power of a state to distribute its regulatory authority be tween itself and its political subdivisions in any way it might see fit (See People ex rel. Deukmejian v. County of Mendocino, 36 Cal.3d 476, 683 P.2d 1150, 1160-61, 204 Cal.Rptr. 897, 907-08 (1984), for a succinct statement of this position.) The argument might have been persuasive if the compro mise had been limited to the local govern ment issue, but such was not the case. There were numerous points of disagree ment between the Senate committees, for exa- and the compromise reached in the te was based on the Agriculture Committee's receding on some issues and the Commerce Committee's receding on others. The local government question was one on which the Commerce Commit tee gave way to the Agriculture Committee entirely, and when the Senate passed the compromise bill, it passed a bill that the Commerce Committee had said, in its June 7 report, "should be understood as depriv ing . . . local authorities and political subdi visions of any and all jurisdiction and au thority over pesticides and the regulation of pesticides." : ,. >. . 582 (1988). "[Legislative intention, wiDoi out more, is not legislation." Train tt Cir* ' of New York, 420 U.S. 35, 45, 95 S Ct 839* 845, 43 L.Ed.2d 1 (1975). , I'. % The Constitution itself shows that coini? mittee reports and other such indicia of Congressional intent must not be allowed to supplant the text of the statute.;, To' become law, after all, a bill must have passed the House of Representatives as whole, and not merely one or more House,: committees. U.S. Const., Art. I, 7; . jji must have passed the Senate as a. whole-!' and not merely one or more Senate commit tees. And "before it becomes a Law," a When the House passed its version of the bill which has passed both the House and!*- legislation, similarly, it adopted a compro the Senate "shall be presented to the Presi-ji mise in which language preserving local dent of the United States." Id. The Pres%! regulatory authority had been deleted, as dent may then veto the bill, in which case.:j. had language curtailing the regulatory au thority of the states qua states with re spect to general use pesticides. The House Agriculture Committee's announced inten tion in deleting the local government lan guage was to limit the number of "regula tory jurisdictions" to "the 50 States [plus Puerto Rico, etc.] and the Federal Govern unless each House overrides the veto j>y;?| two-thirds vote, the bill "shall not. be. a Law." Id. Be it ever so clear, therefore! aist committee report that has not passed both S the House and the Senate and that has not3$ been presented to the President cannot pbs-c sibly be a "Law" within the meaning of the'r: Constitution. ' -To ment." It was the House Committee's ver Still, the Supreme Court has long ac^>| sion. that the Senate ultimately adopted, knowledged that "[rjeports to Congress ac/. and the report of the. Senate Agriculture companying the introduction of proposed( Committee specifically endorsed "the deci law may aid the courts in reaching the true' '3 $ sion of the House Committee to deprive meaning of the legislature in cases o f,' political subdivisions of States and other doubtful interpretation." Caminetti tV, local authorities of any authority or juris United States, 242 U.S. 470, 490, 37 S.Ct' diction over pesticides___" As Judge 192, 196, 61 L.Ed. 442 (1917). We an; Motz observed in Maryland Pest Control, bound by the text of the statute, and where_ 646 F.Supp. at i l l , "the legislative history the proper interpretation of the enacted could not be more clear." statutory text is "doubtful," resort to bona fide legislative history is always permissi- "A Ill ble and may sometimes be helpful. But no matter how clear the legislative What of the statute before us here; is its,' history may be, legislative history, as such, interpretation really doubtful? Doubtful; is not statutory law. "While we have fre enough, in my view. quently said that pre-emption analysis re The district court evidently believed that- _ quires ascertaining congressional intent," the system of pesticide regulation adoptM'jjs the Supreme Court has noted, " ... .we in the Pesticide Control Act was so compny.>s have never meant that to signify Congres hensive that courts would have treated tfie fc sional intent in a vacuum, unrelated to the entire field as having been occupied by the^ giving of meaning to an enacted statutory federal government absent the express dis text." Puerto Rico Dept of Consumers claimer contained in 24 of the Act I am Affairs v. Isla Petroleum Corp., 485 U.S. inclined to agree. Unless the affirmative;.v; 495, 501, 108 S.Ct. 1350, 1354, 99 L.Ed.2d. grant of permission for "a Slate" to regu-t C ite at. 9U9 I .d 941 Will U r . 1940) pesticide use is properly interpreted as "workout time" of the only winning hors" -ding in on? "'ay or another to political that the bettor did not select on his waj ^jjjonS) then, political subdivisions Racetrack moved for summary judgmei-- y not enter,.the field--and although the The United States District Court for the State"i ordinarily includes, political Eastern District of Kentucky, William 0. ^yisions, there are times when it does Bertelsman, J., 718 F.Supp. 615, granted summary judgment. Bettor appealed. One'need look no further than the Elevnth and Fourteenth Amendments to the institution to find radically different usr 7 ^ "of the term. As used in the Four-' n th Amendment, a " State" includes po- f subdivisions. Adickes v. S.H. Kress # ^ q .`,' 398 U.S. 144, 173, 90 S.Ct. 1598, feijh-n, 26 L.Ed.2d 142 (1970). As used in e Eleventh Amendment; a "State" does The Court of Appeals, Milburn, Circuit Judge, held that the Kentucky rule of final ity. that applied when the racetrack stew ards posted the "official" sign on the horse race result board barred the bettor's action for the track's allegedly fraudulent and negligent failure to post the "workout time" of the one winning horse not selected by the bettor. not' include political subdivisions. Mt. Ktalthy City Board of Educ. v. Doyle, 429 . Affirmed. "$ 274, 280, 97 S.Ct. 568, 572-73, 50 jj.Ed.2d 471 (1977).'. In which sense was ie term .used in 24 and 2(aa) of the Control Act? I cannot say the issue is not "doubtful," even though the legislative history points to an answer that f^wopld not have given had there been no .sucli history. Although I consider this a 1. Federal Civil Procedure =2544 In face of properly supported motion for summary judgment, nonmoving party cannot merely rest on its pleadings, but must forward with probative evidence to support its claim. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. close case, therefore, I agree that the dis 2. Federal Civil Procedure ^ 2544 trict court reached the correct result. If nonmovant party faces heightened burden of proof on issue, he must show in opposition to motion for summary judg ment that he can produce evidence which, if believed, will meet higher standard. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. M'Albert WHITE, Plaintiff-Appellant, v. 'toP?".''.TURFWAY PARK RACING ASSOCIATION, INC., iS'ii 1- : Defendant-Appellee. i f e . ' No. 89-6202. ` ^.United States Court of Appeals,. Sixth Circuit jjlJ'.hi i. Argued June 5,' 1990. i De?I<,ed Aiigr..i, 1990. , ^('.-._U_n__su__cc_e_s_s_f_ul "Pick-Six" bettor !?Pslight suit against racetrack, alleging ^ fraud and negligence for failure to post the 3. Federal Courts =782 Court of Appeals will defer to district court's permissible interpretation of state law when district court grants summary judgment in diversity case on basis of law of state in which district court sits. Fed. Rules Civ.Proc.Rule 56, 28 U.S.C.A. 4. Gaming =28(1) ` Kentucky rule of finality that applied when racetrack stewards posted "official" sign on horse race result board barred ac tion by bettor who learned several days later that prerace "workout time" for offi cial winner of one race may. not have been announced as required by rules of racing, and. who claimed, that he would have won "Pick-Six" wager if that winning horse had been disqualified, and second place horse CP c: c- ne Sg l_)J ro ex O ~M S2 C3 b4 U 1 LDLltAL SUPPLEMENT 1519 (S.D.F)a. 1989). In Mix v. E.F. Hutton & Co., 720 F.Supp. 8, 11 (D.D.C.1989), the Court, finding the phrase "prospectus or oral communication" ambiguous, turned to the Act's legislative history and concluded as follows: Along with the majority of federal dis trict courts to consider the issue, this Court finds the legislative history of the 1933 Act relatively clear on this point. The key house committee report states generally that the Act was designed to "affectf ] only new offerings of securities . . . [and] does not affect the ordinary redistribution of securities unless such redistribution takes on the characteris tics of a new o ffe r in g ...." (Citation omitted.) See also SSH Company, Ltd. v. Shearson, Lehman Brothers Inc., 678 F.Supp. 1055, 1059 (S.D.N.Y.1987) ("The purpose of the '33 Act was the regulation of the dis tribution of securities. Post-distribution trading is regulated by the '34 Act.")* of the statute to an absurdly narrow gory of statements. For all the reasons discussed above p. Court concludes that defendants' acts not actionable under 12(2) of the Secu res Act of 1933; defendants' motion u dismiss the eleventh cause of action t'neiv fore, is GRANTED. SO ORDERED. CHEMICAL SPECIALTIES MANL'FACTURERS ASSOCIATION, INC., Plaintiff, v. Clifford ALLENBY, Defendant. Nos. C 90-0211 FMS, C 89-0332 FMS. A further argument, not raised by the parties, counsels against adopting plain tiffs' reading of 12(2). Plaintiffs rely on the statutory language referring to a "pro spectus or oral communication" and argue that certain oral communications made at the time of secondary transfer are action able under 12(2). In other words, plain tiffs would interpret 12(2) to include all oral communications made in the secondary market context, while excluding all written communications made in the same context. This Court can find no logical reason in policy or equity for assuming such an odd departure from the Act's focus on new offerings. United States District Court, N.D. California. Sept 13, 1990. Manufacturers association sued for de claratory judgment that state warning re quirements applicable to fungicides, insecti cides and the like were preempted by feder al law. The District Court, Fern M. Smith. J., held that California's Proposition 65 warning requirements are not preempted by the Federal Hazardous Substances Act Defendant's motion for summary judg ment granted. In light of Congress' clear intent to focus the 1933 Act primarily on initial offerings, and given the clarity with which a depar ture from that focus was indicated in rela tion to 17(a), the only rational way to interpret the reference to "oral communica tions" in $ 12(2) is as relating back to "prospectus," not as opening up application 4. Defendants argue that the Elysian court mis- takenly relied on Third Circuit precedent which virtually ignores the differences between the 1. Agriculture =9.12(1) States =18.65 State pesticide labeling requirements are preempted by the Federal Insecticide. Fungicide, and Rodenticide Act (FIFRA). but state regulation of pesticide sale and use is not. Federal Insecticide, Fungicide, legislative intent underlying the 1933 Act and the intent behind the 1934 Act. CHEMICAL Sl'l-AIAUILS Mi- Kb. Abb A, l.-A . Clic as 744 F.Supp. 934 (N.D.Cal. 1990) d Rodenticide Act, 2 et seq., as amend- ment in the Southern District, ser' a ^ 7 U.S.C.A. 136 et seq. ruling that California's Proposit, o5 j. Agriculture =9-12<1' (Prop 65) warning requirements are preempted by two federal statutes, the Slates *18.6o California's Proposition 65, dealing ih state regulation of pesticide sale and use is not preempted by the Federal Insec ticide, Fungicide, and Rodenticide Act. Federal Insecticide, Fungicide, and Rodenlicide Act, 2 et seq., as amended, 7 U.S. Federal Insecticide, Fungicide, and Roden ticide Act (FIFRA), 7 U.S.C. 136 ft seq., and the Federal Hazardous Substances Act (FHSA), 15 U.S.C. 1261 et seq. The ac tion was transferred from the Southern to the Eastern District and eventually trans ferred here soon after this Court granted CA. 136 et seq. partial summary judgment for defendant in 3 Health and Environment =20 States =18.65 the related case, D-Con v. Allenby, C 89 0332. California's Proposition 65 warning re [1, 2) Pending before the Court are quirements are not preempted by the Fed cross-motions for summary judgment on eral Hazardous Substances Act; federal statute's preemption provision is limited to cautionary label requirements and does not prohibit states from requiring other forms of ''clear and reasonable" warnings. Fed eral Hazardous Substances Act, 2 et seq., 15 U.S.C.A. 1261 et seq. 1. Commerce =12 both the FIFRA and FHSA preemption is sues. Plaintiff fails to adequately address this Court's decision in D-C<m v. Allenby, 728 F.Supp. 605 (N.D.Cal.1989), wherein this Court found that, while FIFRA preempts state pesticide labeling require ments (which defendant conceded), it ex pressly permits state regulation of pesti cide sale and use. Some of the Prop 65 Federal regulation of field of com warning methods deemed "safe harbor" merce should not be deemed preemptive of methods by the California Health and Wel state regulatory power in absence of per fare Agency, see 22 CCR 12601 ei seq., suasive reasons, either that nature of regu do not constitute "labeling" under FIFRA. lated subject matter permits no other con Accordingly, the Court held Prop 65 not clusion, or that Congress has unmistakably preempted by FIFRA and granted partial so ordained. summary judgment in favor of defendant. Charles A. O'Connor, III, Anthony C. Ching and Donna G. Diamon, McKenna, Conner & Cuneo, Los Angeles, Cal., for plaintiff; Stephen S. Kellner, Chemical Spe cialties, Washington, D.C., of counsel. John K. Van de Kamp, Clifford Rechtschaffen, Edward Weil and Craig Thompson, Oakland, Cal., for defendant. ORDER GRANTING AND DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT FERN M. SMITH, District Judge. Plaintiff, Chemical Specialties Manufac turers Association (CSMA) is a trade asso ciation whose members manufacture a vari ety of chemical specialty products. Plain tiff filed an action for declaratory judg Given the earlier ruling on an identical challenge, and the fact that this plaintiff fails to raise any facts or law not previous ly considered by the Court, defendant's cross-motion for summary judgment as to FIFRA preemption is GRANTED and plaintiff's motion DENIED. The Court in corporates by reference its ruling in DCon v. Allenby, 728 F.Supp. 605. The FHSA preemption issue is addressed be low. The Federal Hazardous Substances Act [3] The FHSA regulates interstate dis tribution and sales of hazardous consumer products which are intended for use or are packaged in a form suitable for use in the household or by children. It also gives the Consumer Product Safety Commission (CPSC), which administers the Act, authori ty to ban hazardous substances when nec- essary to protect public health and safety. reasonable" warning requirement. As pr i No overlap exists between the products viously stated by this Court, determi^ i regulated by the FHSA and those regulat tions as to what does and what does ed by FFRA. Unlike FIFRA, the FHSA meet the requirements of Prop 65 are btc* ! does not require manufacturers to use a particular, federally approved label; in stead the FHSA requires the use of certain warning words (e.g., "caution" or "dan- made by state courts. Plaintiff also tends that the alternative warning methoi deemed "safe harbor" provisions bv th* ger") and allows the manufacturer to de California Health and Welfare Agence > cide on the specific warning language. (e.g., point-of-sale signs and telephone r'. The FHSA preempts state cautionary' la bel requirements.1 The statute defines la formation services) are all "labeling" wjt}(. in the meaning of the FHSA. beling as follows: The term "label" means a display of writ ten, printed, or graphic matter upon the immediate container of any substance or . . . upon a tag or other suitable material affixed thereto; and a requirement made by or under authority of this title that [4] Defendants argue that the Court need only find that any form of warning authorized by the existing regulations fall* outside the scope of preempted "labeling" in order to find Prop 65 not preempted. 1: is unclear whether plaintiff disagrees wit}, any . . . information appear on the label that proposition. Case law squarelv suj- shall not be considered to be complied ports defendant's view, however. "Federal with unless such . . . information also regulation of a field of commerce should appears (1) on the outside container or not be deemed preemptive of state regula wrapper . . . and (2) on all accompanying tory power in the absence of persuasive literature where there are directions for reasons--either that the nature of the reg use, written or otherwise. ulated subject matter permits no other con 15 U.S.C. 1261(n) (emphasis added).2 clusion, or that Congress has unmistakenly Plaintiff argues that only direct package so ordained." Florida Avocado Grown labeling will satisfy the Prop 65 "dear and v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210. vh\ v. r,n\Ml \ M W R i 1. "Except as provided . . . if a hazardous sub stance o r its packaging is subject to a cautionary labeling requirement . . . designed to protect against a risk of illness or injury associated with the substance, no State . . . may establish or continue in effect a cautionary labeling require ment applicable to such substance or packaging and designed to protect against the same risk of illness or injury unless such cautionary labeling requirement is identical___" 15 U.S.C. 126] note (b)(1)(A). (This is the preemption provi* slon currently in effect; it was adopted in 1976. The earlier preemption clause is quoted in foot note 4.) Prop 65 requires a warning against the risk of cancer or birth defects. Defendant argues that, in many instances, the FHSA cautionary label protects against a different risk of illness or injury (i.e., some harm other than cancer or birth defects). In those instances, a manufac turer presumably could comply W'ith Prop 65 by affixing a cautionary' label to the product since the label would not be "designed to protect against the same risk of injury' or illness." The Court need not decide whether defendant's read ing of the statute is correct; even if a manufac turer could not comply with both Prop 65 and the FHSA via package labeling, other Prop 65 warning methods remain available to it. 2. Plaintiff relies on this portion of the statute to support the argument that all "accompanying literature" (such as shelf-labeling and oilier poini-of-saJe information) constitutes "labeling* under the FHSA. In addition to advancing a strained construction of that language, plaintiff would have the Court read the phrase "where there are directions for use" right out of the statute. That phrase appears repeatedly in ref erence to "accompanying literature." See 16 C.F.R. 1500.3(c)(9) (accompanying literature in cludes "any placard, pamphlet, booklet, book, sign, or other written or graphic matter or vis ual device that provides directions for use . and that is used in connection with the display, sale, demonstration or merchandising of a barardous substance ...) ; 40 C.F.R. 1500.125 ("[w]hen any accompanying literature includes or bears directions for use . .. such placard pamphlet, . .. shall bear all the information required by 2(p) of this act"). Plaintiff argues that a manufacturer could not lawfully include with its product "accompany ing literature" which did not contain the re quired FHSA warning, even if such literature did not contain directions for use. That may be true. What a manufacturer may not do and whal a state is preempted from requiring are not necessarily one and the same, however. zo j C tie as 744 t'.S u p p . >14 (S.U.Cal. 14*1 ,, ,7 10 UEd.2d 248 (1962).' See also 24(a) of F1FRA, which expressly allows lines r Rnlh Packi"S Co' 430 U S' 519> state regulation of pesticide sale a> ?, 525 *97 S.Ct. 1303, 1309, 51 L.Ed.2d 604 extended only to states, not localities, ne ri97C) ("[""]e start w'^ assumption ordinance was deemed preempted for that that the historic police powers of the States reason. , rf not to be superseded by the Federal td unless that was the clear and manifest purpose of Congress"). In this case, the nature of the regulated subject matter-- health and safety--is an area traditionally left to the states. There is little case law interpreting the term "labeling" within the meaning of the FHSA. The two cases relied upon by plain tiff were both decided prior to the Congres sional amendment which narrowed the scope of the FHSA's preemption provision 4 and both dealt with state regulations re quiring information to be printed on the product label itself. See CSMA v. Lowery, 452 F.2d 431 (2d Cir.1971) (New York City regulation required that certain informa tion appear on product container and on the "carton, case, or similar bulk package" Plaintiff argues that Prop 65 may re quire warnings in instances where federal law does not so require. That is not dis puted. In Avocado Growers, 373 U.S. at 132, 83 S.Ct. at 1210-13, the Supreme Court considered divergent state and feder al requirements and found "no impossibili ty of dual compliance." Because there ex isted "no inevitable collision between the two schemes of regulation, despite the dis similarity of the standards," the Court de clined to find the California law at issue there invalid under the Supremacy Clause.5 Id. 373 U.S. at 143, 83 S.Ct. at 1218. Ac cordingly, the fact that California may im pose stricter standards than does the FHSA does not invalidate the California regulatory scheme.5 housing the product); CSMA v. Clark, 482 Finally, plaintiff submits declarations F.2d 325 (5th Cir.1973) (local ordinance re from various individuals, one former EPA quired information to be printed on the Administrator and a number of industry product's "container, wrapping, or other "health and safety" experts, discussing the packaging"). Cases dealing with preemp conflicts between the federal and state tion of state "labeling" requirements under laws and the danger presented by "overla- other, analogous federal Acts were ad beling." The declarants express concern dressed in the related case of D-C0 11 v. that additional warnings, such as those re Allenby. quired by Prop 65, will reduce consumer The only new case cited by plaintiff is confidence in EPA approved labels, thus Professional Lawn Care Association v. undermining the FIFRA and FHSA Village of Milford, 909 F.2d 929 (1990, 6th scheme. None of these declarants have Cir.). Lawn Care concerns a challenge to any expertise in the area of human psychol a local ordinance (not a state statute) regu ogy. Even if they were absolutely correct, lating pesticide use. The Court held that however, Congress clearly did not intend to 3. The Ninth Circuit notes two practical reasons (or this presumption. First, Congress has the power to make preemption clear in the first instance. Second, if a court erroneously finds preemption, a stale can do nothing; whereas if the court errs in the other direction. Congress presumably can correct the problem. Chevron v. Hammond, 726 F.2d 483, 488 (9th Cir.1984), 4. The original FHSA "limited preemption amendment", adopted in 1966, declared Con gress' intent to "supersede any and all laws of the States . .. insofar as they may . . . provide Tor cautionary labeling of any substance or arti cle intended for household use . .. which differs from the requirements or exemptions of this 4c]." In 1976, Congress amended the provision and limited preemption to instances where there is a federal labeling requirement in effect and a Slate imposes a different labeling require ment that seeks to warn about the same haz ards. (The amended-clause is quoted, supra at footnote 1.) 5. California law set the standard for maturity of avocadoes at more than 8% oil by weight, whereas avocadoes were deemed mature under federal law at over 796 oil by weight. 6. In fact, defendant notes that nothing in the FHSA prevents manufacturers from voluntarily affixing warning labels on products for which labels are not required under federal law. ) >o -, O occupy this entire area of regulation, as idenced by the fact that states are ex pressly allowed certain functions under both F1FRA and FHSA. No evidence shows the impossibility o f complying with both the federal and state statutes; there fore, Prop 65 is not preempted. P laintiffs motion for partial sum m ary judgm ent is DENIED; defendant's motion is GRANTED. SO ORDERED. 1. F ederal Civil P ro c e d u re ^=184 5 Challenge by nonunion school disp. _ employees to procedural scheme used T teachers' union for determ ining and coll !' ing agency fees would be certified as cl- . action, in light of large num ber of nonunkit. employees affected by substantive dist,,Jb, tion of law suit and because the same tions of law and fa ct were common to 1 nonunion m em bers who received union defective notice in connection with agenct fee deduction from their paychecks. Fed Rules Civ.Proc.Rule 23(a), (b)(1)(A) (h r', 28 U.S.C.A. Robin Gansley MITCHELL, et a/., Plaintiffs, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, et al., Defendants. No. 90-1427-RB(Kx). United States District Court, C.D. California. Aug. 6, 1990. In their challenge to procedure by which teachers union collected agency fee, nonunion school district employees moved for class certification, summary judgment, and entry of perm anent injunction. The D istrict Court, Bonner, J., held that: (1) action would be certified as class action; (2) revised auditors' letter did not verify union's allocation of chargeable versus nonchargeable expenditures and thus failed to comply with financial disclosure require ments; (3) union could not deduct 100% union dues from all nonunion m em bers who did not file objection, as 15.4% of deduction represented amounts the union admittedly spent on ideological activities; and (4) in demnity clause in collective bargaining agreem ent did not violate nonunion employ ees' constitutional rights. Motions granted. 2. L ab o r R elations <S=>104 Revised auditor's letter failed to verib union's allocation of chargeable versus non chargeable expenditures incurred and thus did not satisfy the requirem ent that union' financial disclosure to nonunion member be verified by independent auditor so as u. satisfy F irst Am endm ent requirements for collection of agency fee from nonmembers; it w as a t b e st am biguous whether auditor purported to verify any information more than union's expenses in total, as opposed to verifying apportionm ent of those ex penses between chargeable and noncharge able categories. U.S.C.A. Const.Amend. 1. 3. L a b o r R elatio n s <^104 T eachers' union could not deduct 1001 union dues from all nonunion employees who did not file objection, as 15.4% of de duction represented am ounts union admit tedly spent on ideological activities; non union employees could not be deemed by silence to have consented to deduction from their paychecks g re a te r than compulsory agency fee. U.S.C.A. Const.Amend. 1. 4. L abor R elations 4=249 Indem nity clause in collective bargain ing agreem ent betw een teachers union and school district, w hereby union agreed to hold district harm less for adverse actions arising from union's enforcem ent of agen cy fee arrangem ent, did not violate non union employees' constitutional rights. Reed Schaper, Pepper, Hamilton & Scheete, Los Angeles, Cal., for plaintiffs- MITCHELL v. LOS ANGELES UNIFIED SCHOOL DIST. Clle u 744 F.Supp. 938 (C.D.CsI. 1990) Richard N. Fisher, O'Melveny & Myers, . . . the Court concludes that the indepen Los Angeles, Cal., for L.A. Unified School dent verification requirem ent m ust apply Dt?L Leo Geffner, Taylor Roth Bush & Geffoer Burbank, Cal., for United T eachers- L-tUSD to the allocation of chargeable and nonchargeable expenditures in a union's ma jor categories. The teachers union's dis closure fails because, with respect to the data m ost critical to a non-m em ber's deci sion w hether to contest the computation memorandum o f d e c isio n a n d ORDER GRANTING PLA IN TIFFS' MOTIONS FOR CLASS c e r t i f i c a t io n , SUMMARY JUDGMENT AND of the agency fee, an auditor-verified breakdown between chargeable and nonchargeable costs is lacking, [adopting the rationale set forth in Hohe v. Casey, ENTRY OF PERMANENT INJUNC 727 F.Supp. 163, 167 (M.D.Pa.1989) ]. TION M itchell, 739 a t 512. BONNER, District Judge. I. Background By memorandum of decision and order filed May 31, 1990, this Court held th a t the accounting information provided by defen dant United Teachers-Los Angeles CT'TLA") in its agency fee notice w as conatitutiohally deficient owing to the failure of an independent audit verification of ex penditures, as m andated by Chicago Teachers Union v. Hudson, 415 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986).1 On July 16, 1990, a hearing was held regarding two motions brought on by plain tiffs: (1) for class certification and (2) for summary judgm ent against the defendants in the form of injunctive and restitutionary relief. The facts underlying this action are set forth in g re ater detail in the C ourt's May 31, 1990 ruling. See M itchell v. LA USD, 739 F.Supp. 611 (C.D.Cal.1990). Consistent with the reasoning of my earlier decision, and for purposes of resolving the matters under submission, the Court today reaffirms its ruling th at the UTLA failed to comply with the disclosure requirem ents regarding its allocation between chargeable and non-chargeable expenditures. Accordingly, the plaintiffs are entitled to judgm ent on the issue of liability. The rem aining issues for adjudication involve class certification and the appropriate relief available to the plaintiffs. II. Discussion 1. Class A c tio n Certification. [1] Before turning to the nature of re lief, the Court decides th a t this action should be certified as a class action p u rsu -, a n t to Fed.R.Civ.P. 23(a), (b)(1)(A) and (b)(2), because of the large num ber of non union employees affected by the substan tive disposition of this law suit and because the same questions of law and fact are common to all non-union m em bers who re ceived th e UTLA's defective H udson notice in connection with the agency fee deduction from their paychecks.2 Plaintiffs have established that the pro posed class satisfies the numerosity, com monality, typicality and adequacy of repre sentation requirem ents of Rule 23(a). The class size, more than 8,000 non-union mem bers who are subject to the defendants' agency fee arrangement, makes joinder of all persons impracticable. In addition, the representative plaintiffs have shown that I* In H u d so n , the Supreme Court considered the constitutionality of procedures "to draw that necessary line" between contract bargaining and administration costs which are properly charged to nonmembers and sums for the sup* pon or ideological causes which are not, and to respond to nonmembers' objections to the man ner in which it was drawn. Agency, or fair share, fees are the fees paid by non-union employees to the union to defray the employees' pro rata share of the costs of the union's activities as the exclusive representative of the employees in dealing with the employer, in this case the LAUSD. H u d s o n instructs that the union may not coerce non-members into supporting political or ideological views with which they may not agree. Consequently, the agency fee cannot include provision for funds spent by the union to support its political or ideological views. S ee, e.g., P in g v. N a tio n a l E d u c a tio n A s s o c ia tio n , 870 F.2d 1369, 1370 (7th Cir.1989). 1022 All Right Reserved 17 442 Copyright 1993 Andrew Publications 4BK PAPAS V. UPJOHN CO. Minas H. PAPAS, Olile M. Papas, his wife, Plaintiffs-Appellants, v. The UPJOHN COMPANY, a Delaware cor poration qualified to do business in the State o f Florida, Zoecon Corporation, a Delaware corporation currently doing business In the State o f Florida, Defendants-Appellees. No. 89-3752. United States Court of Appeals, Eleventh Circuit. March 8, 1993. ^3 *o O fo to --Q %I PAPAS PAPAS . UPJOHN CO. Appeal from the United States District Court for the Middle District of Florida. ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before ANDERSON and EDMONDSON, Circuit Judges, and MORGAN, Senior Circuit Judge. PER CURIAM: The facts of this case are set out in Papas v. Upjohn Co., 926 F.2d 1019 01th Cir.1991) ( `Papas I "). We must decide whether, in the light of Cipollone u Liggett Group, Inc, 505 U.S. -----, 112 a c t . 2608, 120 L.Ed.2d 407 (1992), appellants' state law claims against defendant Zoecon Corporation are preempted by the Federal Insecticide, Fun gicide, and Rodcnlicide Act, 7 U.S.C.A. 55 I36-I36y ("FI FRA"). Appellants MinaB and Ollie Papas brought a diversity action against Zoecon Corporation seeking compensation for injuries Mr. Papas allegedly sustained due to exposure to pesti cides manufactured by Zoecon. The Papases' complaint asserted liability based on neg ligence, strict liability, and breach of an im plied warranty of merchantability. Each of these claims was, In whole or In part, a claim of inadequate labeling for alleged dangers arising from exposure to the pesticides. Pa pas I, 926 F.2d at 1020. In Papas l, we reviewed the district court's partial grant of summary Judgment In favor of defendants on the labeling claims. We ailli tied, holding that "FIFRA impliedly preempts state common law tort suits against manufacturers of EPA-registered pesticides to the extent that such actions are based on claims of Inadequate labeling." Papas /, 926 F.2d at 1026. We confined our analysis in Papas I to the doctrine of implied preemp tion. Id. at 1024. Later, the Supreme Court vacated the judgment in Papas I and re manded this caw to us for further consider ation in the light of CipolUme v. Liggett G roup In c. 606 U.S. ------, 112 S.CL 2608, 120 L.Ed.2d 407 (1992). Papas v. Zoecon Corp., -- U.S. ------, 112 S.CL 3020, 120 L.Ed.2d 892 (1992). Having looked at Cipol lone, we conclude that FIFRA expressly preempts the Papases' claims to the extent they are based on inadequate labeling or packaging. I. In Cipollone, the Supreme Court analyzed, for the claims in that caw , the preemptive effect of the Federal Cigarette Labeling and Advertising Act, enacted In 1966 ("the 1965 Act"), and its successor, the Public Health Cigarette Smoking Act of 1969 ("the 1969 Act"). The Court found no cauw to look beyond the express pre-emption provisions contained In section 6 of the 1965 and 1969 Acts. When Congress has considered the Issue of pre-emption and has included in the enact ed legislation a provision explicitly ad dressing that issue, and when that provi sion provides a 'reliable Indicium of con- cjp Toxic Chemicals Litigation Reporter PAPAS v. UPJOHN CO. gressional intent with respect to state au thority,' [citations omitted) `there is no need to infer congressional Intent to pre empt state laws from the substantive pro visions' of the legislation___ Congress' enactment of a provision defining the pre emptive reach of a statute implies that matters beyond that reach are not pre empted. (I) A State may provide registration for additional uses of federally registered pesticides formulated for distribution and use within that State to meet special local needs in accord with the purposes of this subchapter and if registration for such use has not previously been denied, disapproved, or canceled by the Admin istrator___ 606 U.S. at ------, 112 S.Ct. at 2618. The Court then analyzed the pre-emption provi sions of the 1966 and 1969 Acts to decide if the provisions expressly preempted the plaintiff's various claims, l i In the light of CipoUone, we will determine FIFRA'8 preemptive effect on the Papases' claims under the express pre-emption doc trine. Like the statutes at issue in Cipollone, FI FRA contains a provision explicitly addressing, and providing a reliable indicium of, state authority.1 Congress specified the extent to which the states may regulate pes ticides in FIFRA`8 section 136v: 9 136v. Authority of States (a) In General A Slate may regulate the sale or use of any federally registered pesticide or de vice In the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this sub chapter. (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. (c) Additional Uses 7 U.S.C.A. 9 136v (West 1980 & Supp.1992). To determine FIFRA's pre-emption of the Papases' claims we will "only identify the domain expressly pre-empted" by FIFRA section I36v. See CipoUone, 606 U.S. at ------, 112 S.Ct. at 2618. II. Section 136v(b) pre-empts those of the Papases' state law claims which consti tute "requirements for labeling or packaging in addition to or different from" the labeling and packaging requirements imposed under FIFRA. CipoUone convinces us that the term "requirements'' In section 136v(h) "sweeps broadly and suggests no distinction between positive enactments and the com mon law." CipoUone, at ------, 112 S.Ct. at 2620. Common law damages awards are one form of state regulation and, as such, are "requirements" within the meaning of section 136v. See l i ; Taylor t>. General Motors Corp., 876 F.2d 816, 824 n. 16 (11th Cir.1989), citing San Diego Building Trades Council v. Garmon, 369 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 776 (1969). To the extent that slate law actions for damages depend upon a show ing that a pesticide manufacturer's "labeling or packaging" failed to meet a standard "in addition to or different from" FIFRA rc- I. Sec Papas v. Upjohn Co., 926 F.2d 1019, 102224 (I tlh Cir.1991), for our analytic of FIFRA's legislative history and regulatory scheme. i'AI'AS . UPJOHN CO. quircmcnts, section 136v pre-empts the claims. The 1`apases' concede that each of their negligence, strict liability, and breach of implied warranty counts alleges in part that Zoecon failed to warn users that its product contained certain harmful chemicals and failed to inform users to take appropriate precautionary measures. Those allegations, like the failure to warn claims In Cipoltone, require the finder of fact to determine whether, under stale law, Zoecon adequately labelled and packaged its product. This in quiry is precisely what section I36v forbids. FIFRA denies states the authority to require that pesticide manufacturers conform to a state law standard of care In their labelling and packaging practices. Thus, to the extent that the Papascs' claims require a showing that Zoecon's labelling or packaging "should have Included additional, or more clearly staled, warnings, those claims are pre-empt ed." See Cipoltone, 605 U.S. a t --------------- , 112 S.CL at 2621-22. Thus the CipoUone opinion dictates, under an express pre-emp tion analysis, the same result we reached earlier under the Implied pre-emption d o e trine. Cf. Papaa I, supra, 926 F.2d at 1028. 111. The PapaseB say that they seek to prove Zoecon failed to diacloae to the Envi ronmental Protection Agency ("EPA"), the agency which administers FIFRA, that Zoecon's product contained benzene. The Papases contend that this alleged omission sub jects Zoecon to an agency enforcement action Tor "misbranding,"1 and they urge that com mon law damages awarded on this omission theory would not constitute a "requirement . . . in addition to or different (rum" FIFRA requirements. We reject this argument. As we noted in Papaa I, it is for the EPA Administrator, not a jury, to determine whcLher labelling and packaging information is Incomplete or Inaccurate, and If so what label changes, if any, should be made. See Papaa I, aupro, 926 F.2d at 1026 n. 8. States may not interfere with the methods designed by Congress to achieve FIFRA's goals. See Gade v. N ational Solid Wastes Management Association, -- U.S. ------, ------, 112 S.CL 2374, 2386, 120 L.Ed.2d 73 (1992). We think FIFRA leaves states with no authority to police manufacturers' compli ance with the federal procedures. IV. Appellants urge us to hold that their warning claims "unrelated to labeling and packaging" are not pre-empted by section 136v. They contend that because the lan guage of 136v refers only to "labeling or packaging," the section does not preem pt failure to warn claims based on point-of-sale signs, consumer notices, or other Informa tional materials that are "unrelated" to label ing and packaging. But any claims Lhat point-of-sale signs, consumer notices, or oth er informational materials failed adequately to warn the plaintiff necessarily challenge the adequacy of the warnings provided on the product's labeling or packaging. If a pesti- i . Under FIFRA, a peadcide ia misbranded if the label does not contain warnings and direcdons for use which, if complied with, are "adequate to protect health and the environment." 7 U.S.C.A. S IJ6(q)(l)(F), (G). A manufacturer Is subject to penalties under FIFRA If its pesticide Is mis* branded. 7 U.S.C. 5 !36J(a)(l)(E). Because ap. pellanU "misbranding" theory Is inseparable from FIFRA procedural requirements, we find no merit In appellants' contention that this theory of recovery Is based on a generalized "duty not to deceive." Cf. Cipoltone, 505 U.S. at ----- , 112 S.Ct. at 2624. 3- Toxic Chemicals Litigation Reporter PAPAS v. UPJOHN CO. cide manufacturer places EPA-approved warnings on the label and packaging of Us product. Its duly to warn is satisfied, and the adequate warning issue ends. Plaintiffs may not Interfere with the FIFRA scheme by bringing a common law action alleging the Inadequacy of, for example, point-of-sale signs. Because claims challenging the ade quacy of warnings on materials other than the label or package of a product necessarily Imply that the labeling and packaging failed to warn the user, we conclude that these claims are also pre-empted by FI FRA. V. The Supreme Court ruled that the CipoUone plaintiffs express warranty claims were not pre-empted by the 1969 Act The Papases argue that this aspect of CipoUone mandates a finding of no preemption on their breach of implied warranty claim. We dis agree. In CipoUone, four Justlcea concluded that "the 'requirements' Imposed by an express warranty claim are not `imposed under Stale law,' but rather Imposed by the warrantor." Cipoffone, supra, BOB U.S. a t ------, 112 S.Ct. at 2822. On the basis of that reasoning, the plurality concluded that Clpollone's breach of express warranty claim was not pre-empted by the 1969 AcL Id a t ----------- --, 112 S.Ct. at 2622-23. But an implied warranty is a requirement imposed under state law and is pre-empted by FI FRA. Express warranties are promises that are made in some, but not all, sales contracts. Express warrantors seek competitive advan tage by promising buyers that certain factual representations about their goods are true. Liability for breach of an express warranty has a voluntary quality; it "derives from, and Is measured by, the terms of that warranty." CipoUone, a t ------, 112 S.Ct. at 2622. In contrast, implied warranties of mer chantability arise by operation of law. See Wagner u. Mars, Inc., 166 So.2d 673 (Fla. App.1964); Atlantic Distributors, Inc. v. Atson Mfg. Co., 141 So.2d 306 (Fla.App.1962). Florida has codified the implied warranty of merchantability, which, unless waived or modified, is always implied In a sale of goods by a merchant and Includes the statutory requirement that goods "are adequately con tained, packaged, and labeled as the agree ment may require." Fla.Stat.Ann. 672314 (1992). Although liability for breach of an express warranty may be viewed as "imposed by the warrantor," CipoUone, 605 U.S. at ------, 112 S.Ct, at 2622 liability for breach of an implied warranty is based on "the agree ment, imposed by tatq to be responsible In the event the thing sold is not In fact fit for the use and purposes intended." Arcade Steam Laundry t>. Bass, 169 So.2d 915 (Fla. App.1964) (emphasis added). In essence, when plainlifTs argue that an Implied warran ty obligates the seller, plaintiffs acknowledge that the seller did not volunteer for the liabil ity. FI FRA pre-empts claims based on re quirements Imposed by states. 7 U.S.C. i 136v(b). If Zoecon were to have liability for breach of an implied warranty of mer chantability, that liability would not be selfinflicted. Instead, that liability would be based on a requirement imposed by slate law. Therefore, to the extent the implied warranty claim depends upon Inadequacies In labelling or packaging, FIFRA section I36v pre-empts the claim. VI. We conclude that FIFRA expressly pre empts state common law actions against manufacturers of EPA-registered |>esticidcs to the extent that such actions are predicated 01 O o Ks\ ro tn PAPAS V. UPJOHN CO. Toxic Chemicals Litigation Reporter on claims of Inadequate labeling or packag ing. To the extent that appellants* negli gence, strict liability, and breach of Implied warranty claims require a showing that Zoecon's labeling and packaging caused the al leged Injury, those claims are preempted by FIFRA. Claims that do not challenge Zoecon'a labeling and packaging practices are not pre-empted. AFFIRMED. f p 5 3 > - /, o 5 ^ 1028 LOW-VOLATILE BRUSH AND WEED HERBICIDE Contains Propylene Glyilol Butyl Ether Esters of Sifvex Acid Equivalen : 4 pounds per gallon | FOR THE CONTROL OR MANY WOODY PLANTS. HERBACEOUS ANNUAL AND PERENNIAL} WEEDS. AND AQUATIC WEEDS. ACTIVE INGREDIENT: Stfvsx, [ t t 2,4.(-TrtcMenplMAeiy) propionic Add) Propylnaiycd(CHtO to CvHiaOa) Butyl Ethor E sters.. MJ% INERT INGREDIENTE R l% 8itvx(2-(2.4,S-TricMoroptionoxy) propionic Add) Equivalent: 45J % --4 pounds por gsMon 1 E.PJL RoflistrsBon No. 444-1S2-AA EJ>.A. E st 44M4I-1 AGRICULTURAL CHEMICAL DoNot Ship or Stemwith rood, roods, or iPRinEtCuAitUiCIMOyNAwLUSwUpAsRaIO4:aKnmn*M Mto*Hd; *. MMna TffRtqANSLAtTu*I*ON!:!{>TOT*M*B US-tS*R*#:!.M-.*yw> r ^ . - . CAUTION KEEP OUT OF REACH OF CHILDREN HARMFUL IF SWALLOWED " ' MAY CAUSE SKIN IRRITATION.. .AvoidContaetwtthTEyaiCskln and Clothing ' DOW fi*0 LOW-VOLATILE BRUSH AND W EED HERBICIDE _ Contains Propylene Glycol Butyl Ether Esters of Silvex Acid Equivalent: 4 pounds per gallon FOR THE CONTROL OF MANY WOODY PLANTS, HERBACEOU - -ANNUAL.ANP P E R E ^ WEEDS, AND AQUATIC WEEDS. mm A C TIV E IN G R ED IEN T: SHvex, |2-{2.4.5-TricM orophenoxy) propionic Acid] Propylon G ly co l (C)H tO to CH ifO j) Butyl E th er E s te rs . .69.2% IN E R T I N G R E D I E N T S : ................................................................................30.% Silvx|2-(2,4.5-Trichiorophenoiy) propionic Acid] Eq uivalen t: 45.5% -- 4 pounds por gallon E.P .A . Registration No. 464-162-AA E .P .A . E s L 464-MI-1 AGRICULTURAL CHFMICAL Do Not Ship or Store with food. Feeds, or Clothing P R E C A U C t O N AL USUAAtO: SI watod no to tog*. no m *sto fqdMCto ta rn <** fe ettquef to ft*y to tip lc e ii wpllaunto. TRAMSLATIOW;(TOTHE USCfl: If fM cimo<ned CRgMv do not u tt M l product wrtf to* toM ha b**t fuMy *ptato*d to ye.) CAUTION KEEP OUT OF REACH OF CHILDREN HARMFUL IF SWALLOWED MAY CAUSE SKIN IRRITATION Avoid Contact with Eyes, Skin and Clothing 5 G A L /18.9 L NTED IN U .S .A . IN DECEMBER, 1974 I '4EN LABEL 8 6 - 1 0 9 2 PRINTED IN SEPTEMBER, 1973 NCLUDE: (1) EPA ESTABLISHMENT NUMBER ADDEL ULTURAL CHEMICAL STATEMENT ADDED 1029 ,0> 1 * * ' * LOW-VOLATILE BRUSH AND WEED HERBICIDE: Contains Propylene Glycol Butyl Ether Esters of Silvex Acid Equivalent: 4 pounds per gallon FOR THE CONTROL OF MANY WOODY PLANTS, HERBACEOUS ANNUAL AND PERENNIAL WEEDS, AND AQUATIC WEEDS. ACTIVE INGREDIENT: Silvex, [2-(2,4,5-Trlchlorophenoxy) propionic Acki] Propylene Glycol (CaHsO to CaHuOa) Butyl Ether E s t e r s . . 69.2% IN ER T IN G R E D IE N T S :....................................... .............................30.8% Sllvex[2-(2,4,5-Trlchlorophenoxy) propionic Acid] Equivalent: 45.8%-- 4 pounds per gallon E.P.A . Registration No. 464-162-AA E.P.A. E s t 464-MI-1 AGRICULTURAL CHEMICAL Do Not Ship or Store with Food, Feeds, or Clothing PR ECA U C IO N ALUSUARK): SI u i ti d n o lN in g t f t , no u h a sta product hast quo 1 tlquta la haya aid axpllcada atnpllamnta. TRANSLATION: (TO THE USER: H you eannot raad English, do not us this product until th labl h a s boon fully iplalnad to you.) CAUTION KEEP OUT OF REACH OF CHILDREN HARMFUL IF SWALLOWED MAY CAUSE SKIN IRRITATION Avoid C ontact with Eyes, Skin and Clothing 5 G A L / 18.9 L 86-1092 PRINTED IN U.S.A. IN DECEMBER, 1974 REPLACES SPECIMEN LABEL 86-1092 PRINTED IN SEPTEMBER,.1973 Re v i s i o n ^ i n c l u d e ? (i) e p a e s t a b l i s h m e n t n u m b e r a d d e d (2) a g r i c u l t u r a l c h e m i c a l s t a t e m e n t a d d e d < 8 s ^ K U R O N LOW-VOLATILE BRUSH AND WEED HERBICIDE Contains Propylene Glycol Butyl Ether Esters of Silvex Acid Equivalent: 4 pounds per gallon USES KURON herbicide ii recommended for control of mony species of woody, herbaceous end oquotic plontt growing on indwitriol tilet; In le rttli; on right-of-vrays such a t communi cation (net; electrical power (net. pipelines, highway ond roilroodl; along dra in a g e ditch bank, fuel breaks end fence row; on golf course, perks ond athletic fields; in ponds end similor aquatic areos; in farmyards, pastures e n d rangeland; an d in rice and sugar cane. Use only as recommended on this label. KURON herbicide will control matt unwonted (1) w oody plant, such a t ald e r, bromble. buttonbuth, dogwood, honeysuckle, locust, mople, metquite, oak, persimmon, poison ivy, poison oak, prickfypear cactus, sagebrush,, tefmonberry, salt ceaor, wild rose, willow, yucca; (2) broodleat woods such os oilterweed,' btockmedic, broomwaed, burdock, butter cup, croton, chkkweed, dehnation loadfldx, dandelion, dogiennel, -groundcherry, kachie, lupine, marsholder, plantain, ragweed, spurge; (3) aq u a tic w oosh, both em ergent and subm ergent'species, such cs arrowhead, bladderw erl, fonwort, pickerelweed, wolerlSIy, wotermilfoil a n d waterweed. Many other species In eoch category also con b e controlled. \ . .. DIRECTIONS foliage sprays should be applied when brush or roods are actively growing. Application ! .... under drought conditions n o r give poor results. Use lew spray pressure to minimize sproy drill. Do itet opply KURON where spray drift may contoct nearby susceptible craps or other . ' dosireble plants; Rood a n d fallow oil Use Precautions given on this lab e l. NOTE: Con sult your Agricultural Experiment Station or Extension Service weed specialists lor advice ' concerning special .local .ese conditions. / ' ! PREPARING THE SPRAY - KURON herbiclde-in wafer or oil-water sprays forms an emulsion. S eparation moy occur ; unless the s p ra y mixture Is continually ag itate d . Mechanical ogitotion is recommended. - When mixed only with oil o solution is formed ond further ogitotion is not needed. NOTE: W here aif is recommended, .use diesel oil, No. t or No. 2 fuel oil or kerosene. . Oil Spray; Add KURON to the required amount of oil In the sproy tonk or mixing tank and , mix' thoroughly: Do not let any w ater o r oil-water mixture g et Into the KURON or into the V mixture, since this may cause formation of o thick gel. W ater Spray: fill the spray tank about half full with rater. Then, with ogitator running, slowly a a d the required amount of KURON a n d finally complete filling the lank with water. i ' Continue ogitotion rhile spraying. Oil-W ater Spray Mixture: With vigorous ogitotion, I gallon of KURON will emulsify up ' to 10 gallan t o f a il In 100 g allant of iproy mixture. P referred mixing procedure: Premix the.KURON an d oil In a separate container. Start filling the sproy tank with water. After the tank It ab out Vj full, slowly o d d the required quantity of the KURON-oil premix with agitator running a n d complete filling the tank;rith rater. A lternate procedure: Start filling the spray tank, rith water. After it Is eb e u t Vs full, a d d the required quantity of KURON nth agitator running. Then a d d the oil a n d complete filling tne tank. Vigorous ag itatio n in th e sprov tank Is required to fnalce a gooa em ulsion. NOTE: Agitotion in the Sproy tank should be continued during Spraying. ' ` - ' USES IN INDUSTRIAL AND N O N -C R O PtA N O AREAS RIGHT-OF-WAYS AND FOREST SITE PREPARATION: With ground application on mixed } brush; use 3 to 4 quarts of KURON in 100 gallons of rater en d opply a t a luH-coveroge . spray rhen1foliage fa well developed end plants a re growing actively. This usually re- r quires 100 to 4 0 0 'gallons el spray per ocre depending on height an d density of the brush. With ae rial ap p lication on mixed brush, use 2 to 4 gollons ol KURON in ,10 to 30 gallons . 1 of rater p e r acre and provide uniform.spray coverage of target areas. Aircraft should b e equipped o n d operated to minimise spray drift. With either a ir or ground application, ' appry only when .there,h Kftlo or no rind an d w h e n th ere it no h a io rd from spray drift. C'jf As long a s there fa am ple seif mohfure a n d brush is growing well, spraying eon b e effective f_" -.throughout the growing season up to 3 weeks before normal foil frost. Spraying during hat dry mother or after tne feliege loses its normol green color moy result in poor central. ; Under dry conditions the inclusion ol a d d e d all (up la 10% of Sproy volume) may Increase .`overall effectiveness. Avoid drift of spray from o re a b eing tre a te d . To lessen spray drift ; svhen using o spray gun, use only enough pressure to obtain coverage, usually 40-fo SO pti a t th e g u n . Brash toiler rhoa 6 to 8 feet can be sprayed successfully but In many cases treatment of b asal bark, dormant stems or stumps as described on this label may be fr p re ferred .. 'r/ ; \ : On right-of-ways P nd fndettriof sites only, KURON can b e used In a tank mix with TORDON 'JOI Mixture, to obtain lapro sif control of rootsvckerlng species ond other species not '> ,J `adequately controlled by sikrex alone. Avoid drift of sp ra y from o re a bein g tre a te d . WHh ground equipm ent use 2 quarts of KURON plus I gallon of TORDON 101 Mixture in 100 gallons -of w ater and apply as o lull coverage spray, usually requiring 100 to 400 . *i gallons per ocre. With asria l application use IMr gallons of KURON plus 2 to 3 gollons TORDON J01 Mixture p er acre by diluting with woter to a total spray volume of 10 to \'t : 30 gallons p e r acre. Application should b e m ade only with a helicopter mounted Micrafoil applicator or on equipment system providing equivalent drift central. Keep th e pray 1 . ^ '-mixture a g ita te d to presen t separation. Do not use oil in sprays containing TORDON 101 ''.'.M ixture. .. --W- y / 1 . FOREST CONIFER R&EASfe Oil Spray; Apply 2 to 3 quarts of KURON In ebowl 10 gallons ! 1 `; of ell p a r acre by aircraft or ground equipm ent to central undesired hordwoods In dormant .* Douglas fir,.tre e 'fir, hemlock and spruce. Rates higher thon 2 quarts may cause conifer h | 7 - Da not use ell spray on pines (see rater spray recommendation below). Apply bafere ..-'f conifer bud break during late dormancy, usually February ond Morch in the northwest. Application of this spray after conifer bud break can Injure She conifer. W ater Spray: Apply 2 te 3 quarts of KURON In 10 to 13 gollons of w ater per acre to contra! ' ' hardwood species hi conifers including pines. Apply during the summer a f te r the conifers - cease prlng growth and hove "hardened off". Rotes higher then 2 quarts may .cause ' , conifer Injury. Cornell yaer State, Regional or Extension Forester for recommendations ta fit local conditions. BASAL BARK AND STUMP TREATMENT: Brush and small trees can be controlled by spraying the b asal 12 to 20 inches of stems and trunks, down to the ground line, with o solution con taining 3 to 4 gallons of XIJRON in 100 gallons of oil; or such growth can be cut close to the ground a n d the freshly cut stumps sprayed with the tam e solution far effective regrowth central. All exposed bark down to the ground line os well a t the cut surfaces should be tooked. In either treatment, apply as a low-pressure coarse spray with power or knapsack equipm ent and a t any time of year except when water, snow or ice prevents spraying to the ground line. POWERED KNAPSACK BASAL TREATMENT; Mix 10 to 14 gollons of KURON in oil to moke 100 gallons of spray iolvfi?n. Apply with a portable knapsack ntiilbfewer to lower brush stems. Total coverage of stems and root collars it ettenliol far best results. Run mistblower o l Vi te Vi throttle for best spray delivery and brush coverage. Use a basal noztle attach ment far maximum drift control and do not raise sproy nozzle above horizontal position. MODIFIED BASAL OR DORfAANT CANE TREATMENT: For mixed brush, use I Vt to 2 gallons of KURON in 100 gollons of oil end thoroughly wet the base of stems. Then also Iproy the lovrer Vi to Va of the lop portions of the brush. Under root tuckering species such as locust, persimmon, sassafras ond sumac, also spray the ground are a so thot small sprouts not readily visible ore treated. Spray ony time after brush it dormant en d most of tpe foliage has fallen. Brush of average density a n d 4 to 6 feet toll may require 150 to 200 goffons of iproy per acre for proper coverage. SPOT TREATMENT: Te treot small brush clumps in industrial ond non-crop areos use 1 quart of KURON In 25 gallons of water and tpray to wet the foliage without runoff. Retreat if regrevrth occurs. LAWNS, GOLF COURSES, ATHLETIC FIELDS AND OTHER GRASS TURF AREAS: Far broadleaf w eed control, use 1W quorls of KURON In 30 to 100 gallons of woter per acre. For imoll areas use 3 toblespooni In 2 gallon! of woter. Apply in fall or early spring to minimize infttry to the grass. A second treatment moy be needed te control hord-to-kill species such as m ouse-ear chickweed, sorrow ond ground ivy. Reseeding of lawns should be delayed following treatment. With spring application reseed in the fall; with fall application reseed in the spring. Do not apply to sleloniferous grasses such as bent, Bermudo, St. Augustine, carpel end centipede; to dSchondra; to new turf, of any variety until wellestablished; or to goll greens. AQUATIC WEED CONTROL S ubm ergent W eeds In Still W ater Such a s Ponds: To control species such os milfoil, fenvert, bladderw orf end walerweed, use 5 quarts of KURON per acre feat of water. Apply in early summer rhen rater is above 50F and weeds are neoring the water surfoce. Uni form distribution ever the water surface is necessary. This can be accomplished by first diluting the KURON with woter to provide enopgh spray volume for the usual spray eq u ip ment. Also, special proportioning equipment con fee used. NOTE: Do not treat flovring water. A pond with a slight current can b e treated ofter the water level is lowered if there will b e no overflow for a t least 3 days following treatment. Em ergent W eeds: Use 1 gallon of KURON in 100 gollons of water an d spray actively growing plants whenfolioge above w ater fa well developed. Use 100 to 200 gollons of spray p e r acre of treated area. 5pecies such as wolerlHy, spotlerdock, pickerelweed end orrow head can b e controlled. For free floating or attached mats of alligator reed spray fo liag e very thoroughly os toon as plants reach a vigorous flowering stoge end repeat the treatm ent If regrowth teaches 4 inches above the water surface. Full coverage ap p li cation is required for effective control. Special Precautions: Apply only In accordance w ith s ta te a n d local law s a n d re g u la tion governing chemical treatm ent of bodies of w ater for central of weeds. Te ovoid Injury, do not use KURON where pond woter is being used far Irrigation (Including rice production), for agricvllurol sprays, for domestic water supply, or for livestock watering. Do not opply te water costaining valuobte fish unless tame fish kill can b e tolerated; kill may occur In shallow cove: if application Is not uniform or In shallow areas net diluted by fresh rater. Treatment of aquotic weeds can result In oxygen less from decomposition of d e e d weeds. This loss can couse fish soffocolion. Therefore, treot Vi te Vi of Hie rater a r e a In a single operation and wait 10 to 14 days between treatments. It is recommended th at treatm ent be applied to pond edges or lax# shoreline first so that fish will not be trap p e d In shallow pocktts or inlets. II desirable to minimize the exposure of desirable vegetation along the thotellnet of ponds and similar aquatic areos, apply KURON when rater levels a re low. Do not ap p ly olgacidet sich os copper sulfote far 3 days before or afte r applying KURON since they may Interfere sith the action of the KURON. USES IN PASTURE AND RANGELAND For g e n e ra l b roadleaf weed control, use IVi to 2 quarts of KURON per acre Insufficient w ater te provide vnifons spray coverage, usually 30 to 100 gallons per acre by ground . equipm ent en d 3 to 10 (aliens per acre by aircraft. For best central, the weeds should be ' young o n d growing acthely when treated. Forage legumes moy b e Injured or killed. Far control of yucca a n d said hlrmery ook, use IV^ to 2 pints ol KURON In 1 gallon el oil, plus w ater te make 4 gdlons of spray per ocre end opply by aircraft ofter foliage is well developed end plants a* growing well. Usually a single application In any one year Is sufficient but oppMcoHsns In successive years may be needed. For pricklypeor cactus, opply by ground equipeent using 2 quarts per acre In 90 gallons of wafer plus 10 gollons of oil. For past a n d black-jack oaks, apply by aircraft using 2 quarts per ocre In 1 gallon of diesel oil and 2Vi t J'/z gallons of water or In 3Vj to 4 '/j gallons of oil only. Moke application on wall dewloped foliage, wiually In May or June. Do not use KURON an benfgrass, newly seeded areas, or oftor hooding begins (gross In b eat to milk stoge). Do .* not use a n postures wndtrseeded to clover, alfalfa or other desirable species susceptible to silvex. NOTE: DO NOT GRAZE DAIRY ANIMALS ON TREATED AREAS WITHIN 7 DAYS AFTER APPLICATION. DONOT GRAZE MEAT ANIMALS ON TREATED AREAS FOR 14 DAYS PRIOR TO SLAUGHTER. DO NOT CUT GRASS FOR HAY DURING THE SEASON OF TREAT MENT. SPOT TREATMENT: To treot smoll weed potchcs or brush dumps in postures and rangeland, use 3 tablespoons (1 Vj fluid ounces) of KURON in 2 gallons of water ond spray to just wet the foliage without runoff. Relreol if regrowth occurs. USES IN CROPLAND ' WEED CONTROL IN RICE: Use IV? to IVt pints of KURON p er acre. Apply In the late tillering stage of rice development, at the time of first joint development (first to second green ring), usually 6 to 6 weeks afte r emergence. Oo not apply after panicle initiation; after rice Snternodes exceed Vi inch; or a t very early seedling, early panicle, boot, flowering, or early heading growth stages. Follow use precaution to avoid injury from spray drift to nearbv crops. Do not ap p ly *o rice poddies where shellfish are of economic im portance or where flood woler is used for irrigation of other crops. Consult Agricultural Experiment Station or Extension Service weed specialists for appropriate rates and timing of sproys for rice. WEED CONTROL IN SUGARCANE FLORIDA Postemergence; Apply 1 to 1V qworts of KURON In 20 to 40 gallons of woler per acre as broadcast sproy to control broodleof weeds. Apply after cane emerges in spring and when weeds a re growing well. A second spray con b e applied to control lote germinoting weeds; NOTE: Do not apply after the cone is 3'/? feet tall. LOUISIANA Preem ergence: Apply 1 q uart of KURON per acre on the row ('/j of total area) shortly before weed seeds a re expected to germinate. If cane ts shaved and off-borred, spray immediately ofterwards. Fellow this early treatment, when needed, with 2 pounas of DOWPON* M grass herbicide per ac re on the row In accordance with label directions for' this product. Postemergence: To control wild lettuce and other broodleof weeds, apply 1 quart of KURON per acre to cane over the row (Vj total area) by ground sprayer. When necessary, re p eat if not applied preem ergence. With air application, use 2 to 3 pints per acre in enough water for uniform broadcast coverage. NOTE: Do .not opply within 5 months el horvest an cone to be processed for food or feed. Use a t any time on cane to be used for ` plonfing purposes. HAWAII Preemergence: Apply 4 to 5 quorts of KURON per acre Immediately, after planting or ratooning and before cane em ergence to control seedling weeds and grosses. Postemergence: Spray the interline space without spraying th e cane directly, using 4 to 5 quarts of KURON plus 3 to 4 pounds of DOWPON M p er acre. Apply up to the lim of "dosing In" but not within 5 months before harvest. Do not make more than two a p p li cations o f 5 quarts each of KURON to any one crop. USE PRECAUTIONS Do not apply KURON directly to, or otherwise permit it to come Into contact with cotton, soybeans, grapes, fruit, nut or ornem ental .trees, vegetables, flowers or other desirable crop or non-crop plonts which a re sensitive to sltvex herbicide, and do,not permit spray milt containing it to drift onto such plants since even very smell quantities of the spray, which may not be visible, may couse severe injury during both growing ond dormant sea sons. Use coarse spray to minimice drift. Application e y aircraft, ground rig or h an d dispenser should b e carried out on ly w h e n th ere Is no h a s a rd from spray drift. Do not spray w hen th e w ind Is blow ing tow ards susceptible crops or o rnam ental plants. Do not spray w hen w ind velocity exceeds 5 m iles per hour. Do not ap p ly in th e vicinity of susceptible crops or ornam ental p lants nor in or n ear a greenhouse. With aircraft application, drift can b e reduced by applying a t least 5 gallons of spray per ocre; by using no more than 20 pounds spray'pressure ot the no id es; ov using noctles which produce a coarse sproy pottern; and by spraying only when the wind velocity is less than 5 miles per hour. With ground equipm ent, drift can be reduced by keeping the Iproy boom as low a t possible; by ap plying a t least 20 gallons of spray per acre; by using nb mere then 20 pounds spraying pressure with flot fan or flooding flot fon noccle tips; by spraying only when wind velocity is less than 5 miles p er hour. With gun application, use pressures o t the nozxle no g re e te r than 50 p ti and apply In such m anner a t to confine, the sproy to the target orea. % At high te-mrpe-ratu.r.e.s. (_a_b_o_ve-9-0e,,F)v, ovappi.o.rs. fr.om. .th.is.pr.o.duct may I.n..j.ure susce.ptib. le. ,plants, growing neorb` y. Excessive amounts of .t.h..i.s....h..e..r.b...i.c..i.d..e....i..n....t.h. e soil may temporarily inhibit seed germination ond plant growth. Do not use on creeping grasses such as bent except for spot spraying nor on freshly seeded turf unlit gross It well established. Most legumes are dam aged or killed so do not trea t, areas where legumes are desired. Do not use on golf greens nor on dichondra or. other.' broodleof herbaceous ground covers. Do not contaminate Irrlgalion ditches br w ater used for irrigation or domestic purposes. Do not store near fertilisers, seeds, insecticides or fungkidet.-.To ovoid Injury to desirable fronts, do not handle .or ap p ly other agricultural chemicals with the tam e equlpment.used or KURON except as specified on this label. This product can bo stored In an unheoted building, but If exposed to subfreoilng temperatures, should b e wormed to d tie a s t 40F and mixed thoroughly before using. . .'."r'nt. Rinse equipm ent ond containers e n d dispose of woste-by burying, hi Iron-crop lands away,'* from water supplies. Do not revs* .containers. Dispose .of emptyr cOntalnervby-punching' holes in them ond burying with w aste. W here required, follow official.locdl eo'nforfner disposal regulations. V: Local conditions may affect the use of herbicides. Consult your State Agricultural ifjreri-'' menl Station or Extension Service w eed specialists for advice In selecting'treatments from this label to best fit local conditions. So sure th at use of this product conform s to,alt:, applicable regulations. Apply this product only a t specified an Ihh label. .r , j` CAUTION - 1 r K E EP OUT O F REACH O F CHILDREN ' HARM FUL IF SWALLOWED ' MAY C A U S E SKIN IRRITATION ' ' ; Avoid Contact with Ey e s, Skin and Clothing V - K NOTICE: Seller s s th at th e product conforms to Its chemical description an d h re a .' SOnobly fit for the purposes tstated on the label, when used in.accordance with directions under normal conditions of use, b u t neither this w arranty nor any other warranty of MER- ' CHANTABIUTY or FITNESS FOR A PARTICULAR PURPOSE, express or implied, extends to the use of this product contrary to la b e l Instructions, or under abnormal conditions, o r un d er' conditions not reasonably foreteeoblo to sailor, an d buyer assumes the risk ef any such use. N974 / ,o r ^ f - / ,O G 2 . ;; 'V. t V W ?i DIRECTIONS GENERAL INFORMATION OOWPON C is a highly ef fective, !ow-<xt herblddefwcontrol of establishedannual and perennial grasses inr^ncnp areas such as drainage ditch and drainage can^winics, :roadsi^s, fencerdws, headlands, around bufldtfi^wMhiyfamfand Industrial structures. Dissolve 15 paindsiof. OOWPON C In 100 gallons of water and add ^ ja rts 6f,DYNAWET*wetting agent included In this p a c i^ e ^ p iy in st^ctant.volume to thoroughlywet all grass folaga.This will usuallyrequire at least 200 gallons erf sp r^ fJ^ e re treatadv fa TO CONTROL JO H N SO N tU lA is^ ER M U p A Q IU ^ OTHER PEST time when the grass ^ g t ^ ^ p ^ ^ ^ ^ w e t f d u r l n g the spring or summerwattur^ttefir^ seed heads appear -usually when Johnsongras| Is 20 to 40 Inches tall or when Bermudagrass Is 6 to'12inlches talL Foiiow up with another treatment as required. In late summer or falL Allow the grass to regrow to the growth stage described above before re-treating. When the first treatment Ismade in late summer or fail allow the grass to reach the first seed-head stage, but apply at least 2 weeks before frost A follow-upapplicationmay be needed thefollowingspring or summer. Two to fourwell timed and thoroughly applied treatments during two successivegrowingseasons should provide excellent control of Johns<vgrass and Bermuda grass. Dead grass may be burned one month after treat ment On cattails apply when new. growth is about 3 feet high up to first seed-head stage. Re-treat as necessary. TO CONTROL MIXED SPECIESINCLUD1NG GRASSES, BROADLEAVED WEEDS AND #OODY PLANTS: Apply a tank mixture consisting of 15;pounds OOWPON C, 2 quarts DYNAWET and 2 to 4 quarts KURON* herbicide in 100 gallons of water. Spray tothoroughlywet anvegeta tion. Follow use precautions forboth .DOWPON C and iPE** Rtcucto GRASS KILLER TO SUPPRESS BERMUDAGRASS: 15 pounds of DOWPON C dissolved in200gallons of waterand sprayed to wet the Bermudagrass at a rate of 200 gallons per acre should provide good growthsuppressionon drainage ditch banks and similar places where growth is desired to hold the soil in place. Apply any time Bermudagrass growth constitutes a problem. Re-treat as needed. Note: This may cause considerable kill of Bermudagrass under some conditions such as vigorous growth at time of treatment Do not reuse container. Destroy when empty. ----------- USE PRECAUTIONS----------- DO NOT US ON LAND TO BE PLANTED TO 'FOOD CROPS. To avoid injury to desirable plants, do not allow spray or spray drift containing DOWPON C to contact foliage or roots of such plants, including lawns and other desirable turf. Do not let spray get into water used for irrigation or other domes tic purposes. Flush spraying equipmentwithplenty of water immedately after use toavoid contamina tion of later sprays or possible corrosion. WARNING KEEP OUT OF REACH OF CHILDREN HARMFUL IF SWALLOWED MAY CAUSE BURNS Do Not Get InEyes|on Skin,oron Clothing or Shoes Avoid Breathing Spray Mist In cat of contact, Immediataty flush sJdn or eyes with plenty of water for at toast 15 mlm itts; for y tt, get medical attention. Removo contaminated clothing and wash before re-use. N O TIC t: S afer warrants O ut th s product contorm a to its chwiwcat daacrtpSon and fc rsaaonabty fit fo r mo purpoaaa g f d on ttw la b a t when uaad to accordanca w tth dNac Horn undar nornm condition o t tw o. Out n a ttfe r tfW t warranty n or any othar w arranty OtMERCHANTABILITY o r FITNESS FOR A PARTICULAR PURPOSE. tKpraaa o r knofed. n to n d s to tha uaa o t tffe product contrary to tabal inatruettona, o r undar abnorm e condM ora. or undw conditions fto t M onao iylo n m M 6i to --P w .and buf f M w n w the risk o t any sue* uaa. H1074 THE DOW CHEMICAL COMPANY AND SUISIOIASUS MIDLAND. MICHIGAN 4SS40. USA ZURICH. SWfTZCRLAMO MONO KON& IC C CORAL QASI.CS. FLORIDA 3313. USA SARNIA. ONTARIO. CANAOA 0 - \0 ^ % l i::^: " &;. ' ' . . . L. '^;- \ - if* *- *X ' .gy. v>5 ' *" DIRECTIONS GENERAL INFORMATl^PpVVPON C Is a highly ef fective, low^^t hiAIdde;rcontrol of establishedannual and perennial grasses innpnatjp areas such as .drainage ditch and drainage cari^afils, 'roadsldeifencerows, headlands, around buildln^fandothi-farmand Industrial structures. Dissolve 15 poundsof: DOWPON C in 100 gallons of water and add Jakarta 61DYNAWET5 wetting agent included In thi p a c l^ a ^ p iy in sufficientvolume \ to thoroughly wet all grass fplage. This will usuallyrequire at least 200 gallons of spray^petiacre treated.-, . r->'ifvS$- ;.i"' 2-, ' TO CONTROL JOHNSONG ERMUDAGRASS, OTHER PEST GRASSES!'1 time when the grass Is gi "v ^ep'toedjduring the spring or summerwatturiffitfwfofseed heads appear -usually when Johnsongrasl Is 20 to 40 inches tan or when Bermudagrass Is 6 to'12bKhes tad Follow up with another treatment as required, In late summer or falL Allow the grass to regrow to the growth stage described above before re-treating. When the first treatment is made in late summer or fail allow the grass to reach the first seed-head stage, but apply at least 2 weeks before frost A follow-up applicationmay be needed thefollowing spring or summer. Two to fourwell timed and thoroughlyapplied treatments during two successivegrowingseasons should provide excellent control of Johnsongrass and Bermuda- grass. Dead grass may be burned one month after treat ment On cattails apply when new growth is about 3 feet high up to first seed-head stage. Re-treat as necessary. TO CONTROL MIXED SPECIEs| n CLUDING GRASSES, BROADLEAVED WEEDS AND WOODY PLANTS: Apply a tank mixture consisting of 15;pounds DOWPON C, 2 quarts DYNAWET and 2 to 4 quarts KURON* herbicide in 100 gallons of water. Spraytothoroughlywet allvegeta tion. Follow use precautions for'jboth DOWPON C and epuctoTOW- GRASS KILLER TO SUPPRESS BERMUDAGRASS: 15 pounds of DOWPON C dissolved in200gallons of waterandsprayed to wet the Bermudagrass at a rate of 200 gallons per acre should provide good growthsuppression ondrainageditch banks and similar places where growth is desired to hold the soil in place. Apply any time Bermudagrass growth constitutes a problem. Re-treat as needed. Note: This may cause considerable kill of Bermudagrass undersome conditions such as vigorous growth at time of treatment Do not reuse container. Destroy when empty. USE PRECAUTIONS' DO NOT US ON LAND TO BE PLANTED TO -FOOD CROPS. To avoid injury to desirable plants, do not allow spray or spray drift containing DOWPON C to contact foliage or roots of such plants, including lawns and other desirable turf. Do not let spray get into water used for irrigation or other domes tic purposes. Rush spraying equipmentwithplenty of water immediately after use to avoidcontamina tion of later sprays or possible corrosion. WARNING KEEP OUT OF REACH OF CHILDREN HARMFUL IF SWALLOWED MAY CAUSE BURNS Do Not Get inEyes)on Skin,oron Clothing or Shoes Avoid Breathing Spray Mist In eat of contact Immedtelety flush akin or oyos with plenty of water for at loaat 15 minutes; for eyes, 90 medical attention. Re move contaminated clothing and wash before re-use. hO T IC t: Srtar warrant mat ma product conform to it ctenwcal oracrtpflnn and ta raaaonaWr fitter mtpurpoeee aiatod on m aiatefw tenoead to accordance wtmmrac- Boo imdar normal condition ot two. but nattter tfWt wan anty nor any otter warranty of MERCHANTASlurY or FITNESS FOR A PARTICULAR PURPOSE, apraa or hnpfed. tend to mo uw of mte product contrary to label toetroettone, or tmdar abnormal condHtona. or undercondition notreasonably loroOM tele to --te r, n d tei r -- ion-- m ortako! anytucbuao. H1074 THE DOW CHEMICAL COMPANY MIOIANO. tttCMQAM 4 IS4 0 . USA* ZURICH SWfTZCRLANO M ONOKONtLaCC COSAI. O A SU S. FLORIDA 3*134. UBA ARNIA. ONTARIO. CAMAOA 0 DOW GRASS KILLER (FREE FLOWING FORMULATION f R CONTROLLING ANNUAL GRASSES -PERENNIALGRASSES ANO CATTAILS frqfdalapo C l i e n t s e q u iv a l e n t to T4 O'7, d a f a p a n 7 7 dicn<arapropon>C Sort Nau46440^ ` >^f PA. Est 464 Ml-T PR EC A U C IO N AL USUARIO: Si usted no lee ingles, no use este producto hasta que la etiqueta le haya sido explicada ampliamente TR A N SLA TIO N : (TO THE USER: If you cannot read English, do not use this product until the label has been fatly explained to you) KEEP OUT OF REACH OF CHILDREN CAUTION p r ec a u tio n a a y sta tem en t s r Hazards toffumans CAUSES EYClfbUTATION MAY BE HARMFUL I f SWALLOWED MAY CAUSE SKIN IRRITATION AVOID CONTACT WITH EYES. ^ ' ski n or clothing Vv. S ta te m e n t.^ Pitfccf Treatment Incase af contacr. Husheyes witrtjnt^afer (ar at !eastJ5 m in u te s and g e f medical a tte n tta n Rwsfein.rmave c o n ta m i n a te d c io th u tg a w i wash sfcm. w ith p le n ty o f w ate r W ash ;fntangO ef rcr^aS e. ' a g r ic u lt u r a l c h e m ic a l Do Not Sh i|fp r Store with Food. Feed s. Drugs ar Clathmg y S E PRECAUTIONS Apply this product antas specified an this label or on supplementary registered labeling, fie sure that use of this product conforms to all applicable regulations. . To-avoid injury fa cesirabte plants, do not allow spray or spray drift `containing OOWPQN Mto carttactfolaqe or roots of any such plants. "incfuding (awns and other d95*r3bfe turf Flush spraying equipment with plenty of water immediately after use to avoid contamination of later sprays and possible egrrpsten Local conditions affectthejlijegfherbicides State Agriculture Eiperi-menf Station and EAlertSiOtfSetvicc weed specialists in mjn-, states issue recommendations fo fit focal conditions 4 .54rk G /1 0 LB ' < 1042 0 N READ ENTIRE LABEL BEFORE USING DOWPON M DIRECTIONS FOR USE It is a violation of Federal law to use this product in a manner inconsistent with its labeling. STORAGE AND DISPOSAL Do not reuse container Destroy by burn ing or burying in non-cropland away from water supplies or follow official local container disposal procedures. Use DOWPON M only as directed on this label. Before using this product, read GENERAL INFORMATION. USE PRE CAUTIONS. TREATMENT DETAILS AND FOOTNOTES for each intended use. GENERAL INFORMATION DOWPON M grass killer controls cat tails. annual grasses such as foxtails, barnyardgrass. crabgrass. panicums. wild oats, and perennial grasses such as bermudagrass biuegrass gumcagrass. johnsongrass maidencane. paragrass phragmites. quackgrass. raoulgrass. torpedograss vaseygrass MODE OF ACTION: DOWPON M is absoroed through foliage and roots ana translocates through the plant system Grass growth is rapidly inhibited but kill is often delayed If sprayed grass produces new growth, another treat ment is suggested SOIL PERSISTENCE: DOWPON M is readily decomposed m soil by micro organisms In warm, moist soils break down normally occurs in 3 to 5 weeks. In cold or dry soil, and soils with little or no organic matter, slower degrada tion can be expected WHEN TO APPLY: Apply when grasses are growing well and before heading. Adequate soil moisture favors good growth and effective herbicidal action Application during drought or cold weather or when grass is maturing will be less effective HOW TO APPLY: Apply by aircraft or ground equipment as a water spray to foliage which should be wet uniformly Use enough water for adequate wetting of foliage usually 5 to 10 gallons per acre by aircraft and 10 to 100 gallons by ground equipm ent Dense grass stands may require up to 500 gallons for uniform coverage. For spot treat ment. use 10 pounds of DOWPON M per 100 gallons of water Per acre rates are for overall broadcast treatment With band. row. or spot treatment the rates per crop acre should be reduced in pro portion to the areas actually sprayed Note surfactant directions SURFACTANT: Use any approved agri cultural surfactant m all applications of DOWPON M to improve wetting of foliage and grass control. For annual grasses, add ' z to 2 pints per 100 gal lons of spray For perennial grasses, add 4 pints per 100 gallons of spray. NOTE: For some crops, note that less surfactant is recommended. Adding more surfactant to sprays applied to crop foliage may increase the risk of crop injury. For non-crop uses, control of perennial grasses may be improved by using more than 4 pints of surfactant per 100 gallons of sp-ay. COMBINATIONS: OOWPON M can be used in com bination sprays with phenoxy or other herbicides as indi cated on this label ' 'ways note label directions and precautions for other products before using with DOWPON M. Do not use combination sprays con taining 2.4.5-T on ditch banks, around the home or recreation areas. MIXING INSTRUCTIONS DOWPON M grass killer is soluble in water Add it slowly to the water while stirring or agitating until completely dis solved Then add desired am ount of surfactant. In combination sprays with other herbicides, dissolve the DOWPON M first and use no more than 8 pounds in 10 gallons of water. NON-CROPLAND USES Railroad ballast and berm areas, dra age ditches, fence rows, industrial s; and other non-cropland areas mcluc forest planting sites Apply by air ground equipment Tank mix combi tions with FORMULA 40*. KURON" ESTERON- herbicides may be used controlling both broadleaf weeds a grasses. OTHER USES NOT ON THIS LABEL Consult Agricultural Products Depa ment. The Dow Chemical Company. F 8ox 1706. Midland Michigan 48640 registered use di"' ns for DOWP' M m the follow s., ps asparag bananas birdsfoc: : i.` :il. coffee, era berries, macadam a :h j '. s and peas. NOTICE: Seller warrants mat Ihe produci confer >0 <ts chem ical description and is reasonably fr me purposes stated on the label w hen usee accordance wtth directions under normal c o r tions o l use Out neither this w arranty nor any o f warranty ol MERCHANTABILITY or FITNESS F O p a r t ic u l a r PURPOSE express or im plied tends to the use of this product con trary to a instru ctio n s 3 f under aonorm a! c o n d itio n s under conditions not reasonably foreseeable seller and bu>e* assumes the risk o l any suen u U S Patent No 3.671 652 co n tin u a ti 1 USE DIRECTIONS ON NON-CROPLAND PROBLEM Perennial grasses and cattails Annual grasses Control of grasses on forest planting sites Spot treatment D0WP0N M lb per acre TREATMENT DETAILS (note surfactant section above) 13 5-30 Good spray coverage of heathy foliage essential and retreatment may be necessary. With spray boom -- use at least 100 gallons spray per acre. With hand gun -- use up to 300 gallons spray per acre. Spray cattails when 2 to 3 feet tail or during catkin development. 4-10 Treat when growing well and prior to heading Low rates will retard growth of most grasses and can kill certain species such as foxtails. 4-15 Use 4 to 5 pounds per acre on seedling grasses. Use 10 to 15 pounds on perennial grasses. Wait at least 2 weeks after application before planting forest seedlings. Use 13 5 pounds of DOWPON M in 100 gallons of waterand spray to wet grass without runoff. Repeat as needed. USE DIRECTIONS ON IRRIGATION DITCHBANKS -W E S T E R N UNITED STATES PROBLEM 00WP0N M lb/A Control of grasses such as reed canary, bermuda. Johnson, phragmites. cattails, and tule on banks of irrigation systems. 13.5 spot treatment TREATMENT DETAILS (note surfactant section above) Good spray coverage of healthy foliage is essential (a,b,c,d). If brown ing and die-back does not occur within three to six weeks, retreatment may be necessary. With spray boom use at least 100 gallons spray per acre No waiting period is necessary before this water may be used for irrigation purposes. Use 13.5 lb in 100 gallons of water and apply by hand spray gun to control intermittent infestations (not to exceed fifty percent of the total area). Spray to wet all foliage thoroughly but without runoff. This may go up to 300 gallons of spray per treated acre, (a.b.c.d). a. Always begin spraying at downstream end of the section to be treated and work upstream. Do not spray acrossstream. minimize contact of spray on water surface, and do not spray both bankssimultaneously. Do not spray more than 2 miles of the same ditchbank during any 24-hour period for ditches carrying less than 50 cubic feet of water per second. b. Cattails and phragmites (giant plume grass) are controlled best when new growth is 2 to 3 feet tall and plants are growing well. Fall spraying of cattails after catkin development is effective. c. Do not permit fishing in treated waterways within the calendar year of treatment. d. For grazing restrictions see footnotes 20 and 21. continued USE DIRECTIONS ON CROPLAND (Before Making Any Application, R ead Appropriate Footnotes) CROP APPLES, PEARS A P R IC O T S BEANS (Field. kidney. lima. snap) CITRUS groves ditches. borders CORN COTTON FLAX GRAPES D0WP0N M APPLICATION lb per acre TREATMENT DETAILS F0C NOT directed under trees 5-10 Use low rate for trees less than 4 years old Apply as 1 2 spot, band or broadcast application directed under trees 6-7 W estern a r e a s -- use spot, band or b ro ad cast 1. 2 application Spring pieplant 8 G u ackg rass-- apply in spring on 4 to 6 mch grass 2 3. Wait 4 days Plow c deep disc Wait 4 to 5 weeks after plowing or dei. p discing before planting Fall preplant directed under trees at least 4 years old spot or broadcast spring preplant Spring preplant fall preplant Spring preplant preplant (repeat treatments) spot spray lay-by broadcast (for foxtail control) directed under vines 15 2-4 5-10 8 Quackgrass -- apply m fall (usually September or O c 2 3 tober) on growing grass Plow or deep disc 10 days after application or in the spring before planting Use 1 pound m 20 gallons water and spray to wet without runoff Florida and Texas -- apply broad cast at 2 to 10 day intervals California and Ari zona -- spot spray grass at 4 to 8 week intervals 2. 6 Use 5 pounds per 100 gallons water and spray to wet 2 .3 7 grass without runoff If needed make a second application m 1 to 2 weeks Quackgrass -- same as for BEANS 2. 3 4 5-7 Johnsongrass -- spray when 8 to 12 inches tall Wait 2. 3. 3 days Plow or deep <1 Wait at least 5 days after 4. 5 plowing or deep discing before planting 15 Q uackg rass-- same as for BEANS 23 5-7 Johnsongrass -- spray when 8 to 12 inches lull Wait 2 3 5 3 days Plow and plant 5-7 Bermudagrass and johnsongrass on stubbie or fal 2. 3 low land 5. 12 Perennial grasses --use i pound m 10 gallons water Direct spray to giass and keep off cotton plants Spray up to 3 times per season 5 Use directed spray under the cotton after last tillage m western areas 1 Apply m 5 to 10 gallons water per acre on 1 to 6 mch 3. 8 flax and 1 to 2 mch foxtails Use with DOW MCP Amine Weed Killer to add broadleaf weed control 10 Use m bearing vineyards m Arizona and California 1. 2 Apply on 30 mch band centered on vine row Keep spray out of irrigation furrows ^ 0 -1 CROP DOWPON M APPLICATION lb per acre TREATMENT DETAILS FOOT NOTES ASTURE established erenmal -asses such 5 Pangolaermudaahia- Dallisnd Fescue rasses) when grasses are growing well 4-6 Smutgrass control m Gulf Coast States including 3 4. 18 Georgia Apply broadcast at 4-6 lb per acre 19. 21 22 23 25 Spot treat with 6 ib 100 gal water to thoroughly we! 4 18 19 smutgrass foliage 20 21 23 25 CACHES directed under trees 6-7 2-3 yfe W estern a re a s -- i s p o t band or broadcast application Other a r e a s -- use 1 pound m 20 gallons water Apply up to 70 gallons spray per acre 12 12 3L U M S PRUNES) directed under trees 6-7 W estern a re a s use spot band or b road cast 1 2 application POTATOES Sprmg preplant fail preplant preemergence 8 Quackgrass -- same a- 'or BEANS except potatoes 2 3 can be planted right a'ter plowing 11 15 Quackgrass --same as for BEANS 23 11 3 Grass seedlings -- scray grass before emergence of 3 11 potatoes Can be used m compmation spray with PREMERGE 3 Omitro Amine Herbicide 10 Quackgrass -- spray to wet grass if it comes up after 3 i planting and before emergence of potatoes SORGHUM Spring preplant 5-7 Johnsongrass -- spray when 8 to 12 inches tall Wait 2 3 3days Plow Wait a: least 27; weeks before planting 4 5 SOYBEANS spring preplant 5-7 Johnsongrass -- Spray when 8 to 12 inches tall Wad 2 3 3 days Plow or deep disc Wad at leas; 5 days after 4 5 plowing or deep discing before planting SUGAR BEET spring preplant fall preplant broadcast (post emergence) directed 8 Quackgrass -- same as for BEANS except beets can 2 3 24 be planted right after plowing 15 Quackgrass -- same as for BEANS 2 3 12 24 2-4 Seedling g ra sse s-- apply overall from emergence 3 9 to 6-leaf stage of sugarbeets 10 24 3-5 Apply under beet foliage using leaf lifters from 6-ieaf 9 10 24 stage of sugarbeets until they are 14 inches tall SUGARCANE Florida. Puerto Rico directed spot spray 4 Spray grass m spring before ciose-m using 20 to 40 13 gallons water per acre Repeat 2 or 3 times as needed Do not spray cane foliage Use 10 pounds DOWPON M m 100 gallons water and 13 spray grass infested areas before ciose-m Repeat as needed Do not spray cane foliage ' Q - j D (a % continued CROP DOWPON M APPLICATION lb per acre TREATMENT DETAILS F0Q~ NOTE SUGARCANE Hawaii directed SUGARCANE Louisiana spot spray ground 3-4 Spray grass after cane planting or ratoonmg Repeat 14 2 or 3 times as needed prior to close-m Do not spray cane foliage Same as for Florida cane 14 57? Stubble cane -- Apply 2% pounds on 30 inch bends 15. 16 on actively growing johnsongrass or bermudagmss 17 m the spring. Repeat in 2 to 3 weeks if needed i -i ! '*S 44 i FALLOW OR STUBBLE LAND aerial ground aerial preplant or repeat treatments 274 S t u b b l e c a n e -- Appl y on a c t i v e l y g r o wi n g 16 17 johnsongrass or bermudagrass m the spring using 3 to 5 gallons of water per acre Repeat m 2 to3 weeks if needed 27s Plant cane -- Apply on actively growing seedling 15 16 grasses such as johnsongrass and raoulgrass Re peat in 2 to 3 weeks if needed 1 Plant cane -- Apply in spring m 3 to 5 gallons of 16. 17 water per acre on actively growing grass seedlings Repeat in 2 to 3 weeks if needed 5-7 Use m gram stubble or on fallow land to control 2. 3. 5 quackgrass bermudagrass and johnsongrass dur 11 12 ing the growing season prior to planting beans, corn cotton potatoes, sorghum, soybeans and sugarbeets THESE FOOTNOTES ARE AN IMPORTANT PART OF THE USE DIRECTIONS 1. Apply when grasses have begun growing well in spring, bui before heading Spray io wet the grass Without runoff Apply when soil moisture is high such as afier a rain or irrigation Use one or two applications per season For band or spot treatment the amount of spray, and DOWPON M . 1 be induced m proportion to the area act,ally treated Do not spray bare soil under fruit trees or vines Keep spray off crop foliage and fruit Do not apply within 30 days of harvest 2. Do not graze livestock on treated areas during application season 3. Apply by air or ground equipment 4. If soil remains unusually dry after preplan; treatment, a longer waiting period may be necessary to avoid residue injury to the crop A ram of half an inch or more will help to move the herbicide into the soil so that microbial degradation (breakdown) will take place Wait 5 days after the ram before planting suscepti ble crops. 5. This treatment will not control unemerged seedling grasses. 6. Keep spray off crop foliage and fruit and do not spray bare soil under the trees Apply after rain or irrigation so that adequate soil moisture is present Use up to 3 applications per season m orange, grapefruit tangerine and lime groves Use low rate on very light soil Do not use m groves under drought stress, diseased m decline or suffering from cold damage In Arizona and California spray only up to half the area over the rootzone of the trees 7. DOWPON M may be used m combination sprays with ESTERO N products KURCN or FORMULA 40 to control weeds and b r u s h m addition to grass 8. Use no more than ' ? pint of surfactant per 100 gallons of spray Do not expect rapid grass kill CAUTION Poor grass control and injury to flax may occur if applied during periods of d'Outh Oo not apply under drouth conditions unless c rop injury can be toler ated Flax varie tie s vary m to leran ce to DOWPON M and MCPA Consult local Exten sion Service Or University Specialists for fur ther information 9. Do not apply-.-.-hen temperature >s above 35 F Using more than 1 pmt of Surfactant per 100 gallons of spray may improve grass control but also may increase the risk Of Crop injury As much as 8 pounds Of DOWPON M per acre may be used lor better control of wild oats and quackgrass but also may miure the beets The 5 to 8 lb rate should be applied only from ground equipment and as a spiay directed away from ihe sugar beet plants For aerial ap plication use at least 5 gallons of spray per acre OOWPON M at 2 to 3 pounds per acre may be used m tank mix combination with Pyram m w h erb icid e at its reco m mended rates and times to control broadteaf weeds as well as grasses 10. Use r c ~z-e than 8 pounds of DOWPC M per acre pcstemergence per season Bee and tops ~ a , be fed to livestock 11. Do net use on tand planted to or to : planted to -ed-skinned varieties or WhRose Oo no: spray potato plants 12. To control established bermudagrass johnsongrasson gram stubble or fallow Ian use 5 to 7 pouncs per acre m 2 or 3 appiic. tions 2 to 3 .-.eeks apart, or as needed Us til'age prior to plant.rg the following sprir on such crops as beans, corn cotton pc tatoes sorghum soyhnans and sugarbeets 13. Do not apply mem than 12 pounds pe acre per season Oo not apply within months of harvest Oo not spray cane foliage 14. Do not apply more than 20 pounds pe acre during 24-36 month crop cycle D: not spray cane forage 15. One pound per acre on 30 inch bands r equivalent to 2 4 pounds per acre on broac cast treatment basis 16. Apply before May 20 to avoid injury tc cane DOWPON M can be used with KURON or 2.4-0 m accordance with label and loca recommendations 17. Varieties C .P 48-103 and C .P 47-193 are less tolerant to DOWPON M than other va rieties. Consult Extension Specialist con cerning response of new varieties. n -it/lo 1 0 4 7 continued IS. Best results obtained it mowed 2-4 weeks 21. Grazing Restrictions alter treatment and fertilized to hasten pas Pastures unmowed-- do not graze meat ani ture recovery mals on treated pastures until 8 weeks after 19. Pastures recover most rapidly it mowed, adequately fertilized ample moisture is made available and other good management prac tices are followed Desirable pe'en.-iiai grasses ano forbs isuch as white cioveri may be temporarily reduced m stana or vigor but treatment and withhold from such grazing for i week before slaughter Fourteen weeks after treatment no withholding period is nec essary Do not graze lactatmg dairy animals on treated p astu res until 14 w eeks after treatment spring treated pastures usually recover wthm Pastures m owed-- mow 2 to 4 weeks after 2 to 4 months under favorable conditions Fall treatment if desired Oo not graze lactatmg or treated pastures usually show excellent re meat anim als on treated pastures until 4 covery the following spring under good man .-.:eks after mowing Oo not harvest hay from agement and favorable co nditio ns Any t-eeted pastures during thc season of annual grasses present may be seriously m- application iured or killed 20. When less than to30of the pasture area is treated grazing need not discontinued 22. Use only the lower rate of OCtwPON M on cahiagrass pastures since it is more sensitive than other desirable pasture grasses and may suffer considerable reduction under un favorable ".iv'difions 23. Oo not so grass seed until 2 to 4 weeks afte' treat.":-.nt Species such as annual ryegrass can `all seeded to provide winter Pasture Oefei grazing for 10 weeks or longer a1--' treatment allowing adequate time for 5ut! -..-0 ! growth to sustain grazing 24. CAUTION Use of thiocarbamates such as RO-NEET TILLAM EPTAM and PRE-BETA herbicides may increase risk of injury to sugar beets from the postemergence application of no'.vPON M Also environmental conditions v.i.ich cause poor growth or educed sugar of sugn' peets such as unusually cold or wet weather drouth stress msect or disease a* taci poor nutrition and high concentrt' i of saits m the soil increase risk of injury Therefore 0 0 NOT APPuy OOvVFC'N M postemergence to sug-r U--.-:s ,1 ihioi.a-'ba- mate herbicide was applied preplanting or if crop -s growing unde ad .r'Se environmental COn-J.: ons u n l e j, crop injury can be toie-u'-.-d 25. Apply only one- ;--' year 14271 430-1 J579 MISCELLANEOUS USES A S P A R A G U S : TO control q u a c k g ro ss, apply 10 pounds of D O W PO N M per acre before cutting and 3 to 4 weeks later as needed. W ith a single treatm ent, use 20 pounds of D O W PO N M either before or after the cutting season. For b e rm u d a g ra ss control, apply 20 pounds of D O W PO N M per acre either during or after the cutting season, and a second spray of 10 pounds as needed. N O T E : During the cutting se a son, spray immediately after cutting and use no more than 1 pint of surfactant per 100 gallons of spray. Postharvest sprays must be directed under the fern growth to avoid crop injury. Use enough w ater to provide uniform wetting of the grass. Spot spray patches of grass with 1 pound of D O W P O N M in 10 gallons of water. B A N A N A P L A N T IN G S : To control perennial grasses such as guinea (P a n ic u m m a x im u m ), am argo (A x o n o p u s sp ). and gomalote ( P a s p a lu m sp ), use 10 to 15 pounds of D O W P O N M per acre in enough water to obtain good coverage. Often rotes of 6 to 8 pounds per acre applied in the some manner give very satisfactory results. A first treatment should be made when grass is growing well, but before heading. Repeat treatments, usually spot applications, should be made where needed in about a month to six weeks ond later on as required. Use no more than a total of 30 pounds of D O W P O N M per acre per year. Keep spray off banana fruits, foliage or young plants. Use sufficient spray to wet grass foliage thoroughly, but avoid run-off. Birdsfoot T re fo il, fo r Seed Pro ductio n O n ly : For use in Vermont and N ew York states only. To control or suppress quackgross, and other perennial grasses, annual grasses and clovers in birdsfoot trefoil seed fields apply 3 to 5 pounds D O W PO N M in 20 to 30 gallons of water per acre in fall or early spring when clovers and grasses are 4 to 6 inches tall. Some temporary crop injury may occur but seed yield and quality are usually increased. N O TE: Do not g raze tre a te d field s to liv e sto c k or fe ed fo ra g e , h a y , or ch a ff. C O F F E E : To control crabgross, berm udagrass, kikuyugrass, para (California) grass and other grasses in established coffee plantations in Hawaii, dissolve one pound D O W P O N M in 10 gallons water. Apply as a directed spray to just wet the grass without run-off but not to exceed 100 gallons per acre. K ee p the sp ra y off th e coffee fo lia g e . M ake initial application to grasses which are growing well and prior to seed head form a tion. Respray 4 to 6 weeks later or when regrowth w arrants, but do not apply more than two sprays in any one crop year and do not apply within 8 months of harvest. C R A N B ER R IES: Ditch an d shore trea tm en t: Use 20 pounds of D O v .'PO N M in 200 fo 300 gallons of water per acre to control cattails, cutgrass, povertygrass, bur-reed and common rushes and sedges in irrigation and drain ag e ditches and along shore areas of cranberry bogs. M ake the first application usually in early June, when weeds are growing well but before seed neads form. Make second application as needed but not later than July 31. Apply the spray to thoroughly we* the weedy vegetation. Keep sp ray off cran b erry fo lia g e V in e T re a tm e n t: Use 10 pounds of D O W P O N M in about 300 gallons of water per acre on cranberry bogs to control summergrass, cutgrass, povertygrass, wamsy, warty paniegrass, bunchgrass, wide leaf grasses, round rush and sedge weeds. Use no more than ''z pint of surfactant per 100 gallons of spray. Treatment should be made only after harvest in O cto ber and early November. C A U T IO N : This treatment may reduce the next season's crop. For example, on the Howes variety the crop may be reduced only slightly whereas on Early 8lacks it may be reduced up to 7 5 % and on certain varieties as"much as 9 0 % . Follow recommendations of agricultural experiment station or extension weed specialists. -Q- icrt( 1 0 4 8 - continued 11! > l S w a b T re a tm e n t: Apply D O W P O N M (to the grass and not to the cranberry foliage) at the rate of 2 pounds in 5 gallons of water (up to 5 gallons mixture per acre) as a swab treatment as soon as the grassy weeds appear above the vines. Two a p p li cations at two-week intervals are suggested. Swob applications will suppress growth of grassy weeds, and may result m crop reduction in the year following application if the concentrated solution is applied carelessly or drips onto the cranberry vines. Do not a p p ly w ith in 60 a a y s of harvest. Do not use m ore th a n tw o a p p lica tio n s per se a so n . Follow recommendations of ag ricu ltural experim ent station or extension w eed specialists. M A C A D A M IA N U TS: To control crabgrass, bermudagrass. kikuyagrass, para (Californio) grass, dallisgrass in m acadam ia orchards in Hawaii, use D O W P O N M in concentrations of 1 2 to 1 pound per 10 gallons of wnter. Spray to just wet the grass without run-off, but not to exceed 100 gallons per acre. M ake first application before harvest and respray at intervals as regrowtn warrants. Do not exceed 24 pounds of D O W P O N M per acre per year. C A U T IO N : During harvest periods, spray only immediately after gleaning nuts from the ground. Do not spray directly on fallen nuts. P E A S : To control se e d lin g g rasses, g ia n t, g reen a n d yel foxtail (S e ta ria ) use one pound of D O W PO N M p er acrenough wafer for good sp ray co vera g e . This treatm ent r not give satisfactory control of species other than these se r five foxtails. Use no more than ''2 pint su rfactant p er I g a llo n s of spray. A pp ly at least 2.5 d a ys prior to harvest w h the g rass seed lin g s a re young a n d the p e a s a re 2 to 6 inc ta ll. Fresh pea vines or p e a sila g e may be fed to livestock d e sire d , but do not feed p e a vine hay. D O W P O N M can c be used in tank-mix com bination sprays .sirh PREM ERG E Dinitro Amine H erb icid e. (Read PREMERGE 3 lab e l directions and precautions). 1049 $-1013- DUWPONM Grass Killer READ ENTIRE LABEL BEFORE USING DOWPON M DIRECTIONS FOR USE It is a violation of Federal law to use this product in a manner inconsistent with its labeling. STORAGE AND DISPO SAL Oo not reuse container. Destroy by burn ing or burying in non-cropland away from water supplies or follow official local container disposal procedures. SURFACTANT: Use any approved agri cultural surfactant in ail applications of DOWPON M to improve wetting of foliage and grass control. For annual grasses, add 'h to 2 pints per 100 gal lons of spray. For perennial grasses, add 4 pints per 100 gallons of spray. NO TE: For some crops, note that less surfactant is recommended. Adding more surfactant to sprays applied to lisa DOWPON M only as directed on this crop foliage may increase the risk of label. Before using this product read crop injury. For non-crop uses, control G EN ER A L INFORM ATION. U SE P R E of perennial grasses may be improved CAUTIONS. TREATMENT DETAILS AND by using more than 4 pints of surfactant I FOOTNOTES for each, intended use. P per 100 gallons of spray. GENERAL INFORMATION CO M BIN A T IO N S: DOWPON M can be DOWPON M grass killer controls cat used in com bination sp rays with tails; annual grasses such as foxtails, phenoxy or other herbicides as indi t barnyardgrass. crabgrass. panicums. wild oats: and perennial grasses such as bermudagrass. bluegrass. guineagrass. johnsongrass. maidencane. paragrass. phragmites. quackgrass. raouigrass, cated on this label. Always note label directions and precautions for other products before using with DOW PON M. Do not use combination sprays con taining 2.4.5-T on ditch banks, around the home or recreation areas. torpedograss. vaseygrass. MODE O F ACTION: DOWPON M is ab MIXING INSTRUCTIONS sorbed through foliage and roots and DOW PON M grass killer is soluble in translocates through the plant system. water. Add it slowly to the water while Grass growth is rapidly inhibited but stirring or agitating until completely dis kill is often delayed. If sprayed grass so lve d . Then add desired am ou nt of produces new growth, another treat surfactant In combination sprays with ment is suggested. other herbicides, dissolve the DOWPON SOIL PER SIST EN CE: DOWPON M is readily decomposed in soil by micro M first and use no more than 8 pounds in 10 gallons of water. organisms. In warm, moist soils break down normally occurs in 3 to 5 weeks. In cold or dry soil, and soils with little or no organic matter, slower degrada tion can be expected. NON-CROPLAND USES Railroad ballast and berm areas, drain age ditches, fence rows, industrial sites and other non-cropland areas including forest planting sites. Apply by air or WHEN TO APPLY: Apply when grasses ground equipment. Tank mix combina are growing well and before heading. tions with FORMULA 40*. K U RO N*. or Adequate soil moisture favors good E ST E R O N * herbicides may be used for growth and effective herbicidal action. controlling both broadleaf weeds and r Application during drought or cold grasses. weather or when grass is maturing will OTHER USES be less effective. NOT ON THIS LABEL HOW TO A PPLY: Apply by aircraft or ground equipment as a water spray to foliage which should be wet uniformly. Use enough water for adequate wetting of foliage, usually 5 to 10 gallons per acre by aircraft and 10 to 100 gallons by ground equipm ent. Dense grass Consult Agricultural Products Depart ment, The Dow Chemical Company, P.O. Box 1706, Midland. Michigan 46640 for registered use directions for DOW PON M in the following crops: asparagus, bananas, birdsfoot trefoil, coffee, cran berries. macadamia nuts and peas. stands may require up to 500 gallons for uniform coverage. For spot treat ment, use 10 pounds of DOWPON M per 100 gallons of water. Per acre rates are N O T IC E: Seller warrants that the product conforms to its chem ical description and is reasonably fit for tha purposes stated on tne label when used in accordance with directions under normal condi tions of use. but neitner this warranty nor any other for overall broadcast treatment. With band, row. or spot treatment the rates per crop acre should be reduced in pro portion to the areas actually sprayed. Note surfactant directions. warranty of MERCHANTABILITY or FITN ESS FOR A PARTICULAR PURPOSE, express or implied, ex tends to the use of this product contrary to label instructions, or under aonormal conditions, or under conditions not reasonably foreseeable to sailer, and buyer assumes tha risk of any such use. U.S. Patent No. 3.671.652 1050 \ 0 1013 -------- 1 t f* tr \ USE DIRECTIONS ON NON-CROPLAND PR0BLEM Perennisi grasses and cattails Annua! grasses Control of grasses on forest planting sites Spot treatment DOWPON M Ib per acre 13.5-30 4-10 TREATMENT DETAILS laote serfactant sectiea above) Good spray coverage of healthy foliage essential and retreatment may be necessary. With spray b oo m -- u se at least 100 gallons spray per acre. With hand g u n -- u se up to 300 gallons spray per acre. Spray cattails w hen 2 to 3 feet tall or during catkin development. Treat w hen growing well and prior to heading. Low rates will retard growth of most g rasses and can kill certain sp ecies such a s foxtails. 4-15 U se 4 to 5 pounds per acre on seedling g rasses. U se 10 to 15 pounds on perennial g rasses. Wait at least 2 w eeks after application before planting forest seedlings. U se 13.5 p o u n d saf OOW PON M in tOOgailansof water and spray to wet g ra ss without runoff. Repeat as needed. USE DIRECTIONS ON IRRIGATION 0ITCH8ANKS--WESTERN UNITED STATES PROBLEM OOWPON M lb/A Control of grasses such as reed canary, bermuda. Johnson, pnragmites. cattails, and tuie on banks of irrigation systems. 13.5 spot treatment TREATMENT DETAILS (sen u rtican t seed above) Good spray coverage of healthy foliage is essential (e.b,c,d). II brown ing and die-back does not occur within tnree to six weeks, ratrsatment may be necessary. With soray boom use at least 100 gallons spray per acre. No waiting penod is necessary before this water may be used tor irrigation purposes. Use 13.5 lb in 100 gallons of water and apply by hand soray gun to control intermittent infestations (not to exceed fifty percent of the total area). Soray to wet all foliage thoroughly but witnout runoff. This may go up to 300 gallons of soray oer treated acre. (e.b.e.d). e. Always begin spraying at downstream end of the section to be treated and work upstream. Do not spray acro ss stream, minimize contact of spray on water surface, and do not spray botn banks simultaneously. Oo not spray more than 2 miles of the same ditcnoank during any 24-nour period for ditches carrying less than i SO cubic feet of water per second. Ik- Cattails and phragmites (giant plume grass) are controlled best when new growth is 2 to 3 feet tall and plants are growing well. Fall spraying of cattails after catkin development is effective, e. Oo not permit fishing in treated waterways within the calendar year of treatment, d. For grazing restrictions see footnotes 20 and 21. THE DOW CHEMICAL COMPANY AND SUBSIDIARIES MIDLAND. M ICHIGAN 48640. USA HQRGEN. SWITZERLAND HONG KONG CORAL GABLES. FLORIDA 33 134. USA SARNIA. ONTARIO. CANADA * Trademark of THE DOW CHEMICAL COMPANY * f t / W ...... . IU tonliol quackgrass, apply JO pound ol DOW PON M ' - acre before culling and 3 lo 4 week later a needed. i a ingle treatment, ue 20 pound of DOW PON M either before or after the culling seaton. For berm udagratt control, apply 20 pound of DOW PON M per acre either during or after the culling teason, and a second pray of 10 pounds as needed. NOTE: During Ihe culling sea son, spray immediately' after culling and use no more than 1 pint ot surfactant per 100 gallons of spray. Poslharvest sprays must be directed under Ihe fern growth to avoid crop injury. Use enough water to provide uniform welting of the grass. Spot spray patches of grass with 1 pound of DOW PON M in 10 gallons of water. BANANA PLANTINGS: To control perennial grasses such as guinea (Panicum m axim um ), omargo (Axonopu* sp.), and gomolote (Pospolum sp.), use 10 lo 15 pounds of DOW PON M per acre in enough water to obloin good coveroge. Often rates ol 6 to B pounds per acre applied in the same manner give very satisfactory results. A first Irealmenl should be mode when gross is growing well, but before heading. Repeat treatments, usually spot applications, should be made where needed In jbout o month to six weeks ond later on as required. Use no more than a lota! of 30 pounds of DOW PON M per acre per Ceor. Keep spray off banana fruits, foliage or young plants. Ise sufficient spray to wet grass foliage thoroughly, but ovoid run-off. Birdsfoot Trefoil, for Seed Production O nly: For use in Vermont ond New York states only. To control or suppress quackgrass, and other perennial grasses, annual grasses and clovers In birdsfoot trefoil seed fields apply 3 to 5 pounds DOW PON M in 20 to 30 gallons of water per acre In fall or early spring when clovers and grosses ore 4 to 6 inches tall. Some temporary crop ln|ury may occur but seed yield and quolity are usually increased. NOTE: Do not g ra te treated fields lo livestock or feed forage, hay, or chaff. CO FFEE: To control crobf bermudogross, kikuyugrass, para (Californio) grass and r grasses in established coffee plantations in Hawaii, dissolve one pound DOWPON M in 10 gallons water. Apply as a directed spray to just wet the grass without run-off but not to exceed 100 gallons per acre. Keep the sprav off the coffee foliage. Make initial application to grosses which are growing well and prior to seed head forma tion. Respray 4 to 6 weeks later or when regrowth warrants, but do not apply more than two sprays In any one crop year ond do not apply within 8 months of harvest. CRANBERRIE5: Ditch and shore treatm ent: Use 20 pounds of DOW PON M in 200 to 300 gallons of water per acre to control cattails, cutgrass, povertyaross, bur-reed and common rushes and sedges in irrigation and drainage ditches and along shore areas of cranberry bogt. M ake'the first application usually in early June, when weeds are growing well but before seed heads form. Moke second application as needed but not later than July 31. Apply the spray to thoroughly wet the weedy vegetation. Keep spray off cranberry foliage. Vine Treatment: Use 10 pounds of DOW PON M In about 300 gallons of water per acre on cranberry bogs to control summergrass, cutgrass, povertygross, womsy, warty panicgrass, bvnchgrass, wide leaf grasses, round rush and sedge weeds. Use no more than Vt pint of surfactant per 100 gallons of spray. Treatment should be mode only after harvest In October and early November. CAUTION: This treatment may reduce Ihe next season's crop. For example, on Ihe Howes variety the crop may be reduced only slightly whereas on Early Blacks it may be reduced up to 75% and on certain varieties as much os 9 0 % . Follow recommendations of agricultural experiment station or extension weed specialists. Sw ab Treatment: Apply DOWPON M (lo me grass and not to the cranberry foliage) at the rate ol 2 pounds in 5 gallons ol water (up lo 5 gallons mixture per acre) as a swob treatment as soon as the grassy weeds appear above Ihe vines. Two appli cations at two-week intervals ore suggested. Swob applications will suppress growth of grassy weeds, ond moy result in crop reduction In the year following application if the concentrated solution is opplied carelessly or drips onto the cranberry vines. Do hot apply w ithin 6 0 days of harvest. Do not use more than two applications per season. Follow recommendations ol agricultural experiment station or extension weed specialists. M ACADAM IA NUTS: To control crabgrass, bermudogross, kikuyaarass, para (California) grass, dallisgrass in macaaamia orchards in Hawaii, use DOWPON M In concentrations of '/ to I pound per 10 gallons of water. Spray lo fust wet the grass without run-off, but not to exceed 100 gallons per acre. Make first application before harvest ond respray at Intervals as regrowtn warrants. Do not exceed 24 pounds of DOWPON M per ocre per year. CAUTION: During harvest periods, spray only Immediately after gleaning nuts from the ground. Do not spray directly on fallen nuts. PEAS: To control seedling grasses, giant, green and yellow foxtail (S e la ria ) use one pound of DOWPON M per ocre in enough water for good spray coverage. This treatment may not give satisfactory control of species other Ihon these sensi tive foxtails. Use no more than /: pint surfactant per 100 gallons of spray. Apply at least 25 days prior to harvest when the grass seedlings are young and the peas are 2 lo 6 inches tall. Fresh pea vines or pea silage may be fed to livestock if desired, but do not feed pea vine hay. DOWPON M can also be used In tank-mix combination sprays with PREMERGE* 3 Dlnitro Amine Herbicide. (Read PREMERGE 3 lab e l for directions and precautions). USE DIRECTIONS ON CROPLAND (Blora Mailing Any Applicatimi. Raad Appioppala Ponlnalaa) CftOP A PPiftl. PIAftft A P R IC O T ! MANS (field. kuSney. snaps CITAUft groves Oiichee bordara CORN conoN flAM O JU P fft OWPONM amscAitON Ift per acre IMAIMM I MUMS IM I NOTH directed unoer trees ft-to Use low rale lor trees less than 4 years old Apply as I 2 spot bane oi broadcast application directed under trees ft-9 W estern e r e e s -- use spot, band or broadcast 1 2 application Spring preptam Ouackgrass -- apply in sprmg on 4 to ft uich grass 2 3 4 Wait 4 days Prow Or deep disc Wait 4 to ft weeks attar plowing pr deep discing betoro planting fail pieMsm directed unoer trees at levai 4 ye n s out pot or broadcast spring p re lu sil i Spring p is p ia m lati pieplant pnng pieplant pieaani (repeal treatment) spot pray lay by broadcast (tor lOalJil conlroll directed under vines Ift Ouackgrass--apply m tsM(usually September or Oc 2 a tober) on growing grass (How or deep disc 10 days after application or ui the spring oelore planting 2-4 Use 1 pound m 20 gallons water and spray to wat 2 ft without runotl Florida and la a a e --apply broad cast at 2 to 10 day intervals Caftlemla and Artaena-- spot spray grass at 4 lo ft weak intervals ft-Ift Use ft poundsper 100 gallons watar and tray to wet 2 3 9 grass without runoll U needed, make a second Application m i to 2 weeks Ouackgrass--same lor BEANS 234 ft-! Johnsonartes --eprey when ft to 12 inches ten Weil 2 3 3 days flo w or o e sp o iic Wed si lesst ft days alter 4 ft plowing or deep discing belore pianlmg Ift Ouackgrass -- same as lor B E a n S 23 6 7 Johnsongrass-- spray whan ft to 12 inches tall Wad 2 3 ft 3 days Plow end plant ft 9 Oermudagrass and ohnaongrass on stubbie or let- 2 1 low lend ft 12 Peienmat grasses --u m t pound u 10 getton ueler Owed spray to grass end keep oil ceiton pients Iprey up le 9 limes per seeeon 6 Ueediiected sprey under tne cotton altar last tiUage m western ess 1 Apply nft lo 10 gallons wsiar per acie on 1to ft inch 3 ft Has and s to 2 inch lo sisiis Use with DOW MCP Afflms Weed Kmer lo add broedieel weed conuol to * Use m bearing vineyards m A niona and Caldorma 1 2 Apply on 30 inch band Ceniarad on vine row Keep spray out ot irrigation lu no w i O \o qcn I CHOP PAftTUftl (e t l a b l't n e d perennial grasses such as PengoleBetmudaBerua-. Oaiiieand fescue gtessesi OOWPON M APPlICAttON Ik per ecre when grarses arc giuwmg wen I f t Smutgrass control m C u ll Coast States including Georgia Apply broadcast at 4ft ib per acre Sui treat won 6 u> too gat water to ihoroughiy wet smutgrass toliage 1001 N O III 3 4 Ift t 2t 22 23 2ft 4 1 Ift 20 21 33 2& PfACH (ft duacied under tree 47 2-3'i Western ereae -- use spot band or broadcast 4pdicahun Oiher aree - use t fiownd m 20 gallons water Apply up to TO gattoni spray pe* acre 12 12 HUMS (PRUNES) directed under trees f t t W estern area# -- use spot band or broadcast 1 2 appkcatmn POlATOEft spring Metileni led pieplant preemergence Ouackgrass --$am t tor B f a n S e*ceM poisioek 2 3 can be planied right alter pkiwng ti 1ft QuiCbg* --sanie as lor B E aNS 2a ti 3 Crass SeeOimgs --spray grass betora amergaoce at 3 I I potatoas Can oe usee m cema*n*tian spray in P A fU tH C f 2 Ornare Anune Herb>iee to Ouackgrass --spray to wet giass dal comes up etter 3 I I fdantmg ano bete emergence ol potatoes ftOftQHUM sprmg prCfUent ft-r Johnsongrass --sp ra y h e n lto tJ-n c n e s ta it Wan 2 3 So ayi flo w Wa<i a lle a s i2( iw eektoaiore planting 4 9 ftOVftfAN I spring prsptent I f Johnsongrass --spray when ft to 12 inchastalt Wad 2 3 3 days flo w or op o>sc Wad ( le sti ft o syt ahet 4 ft plowing or deep dscmg belore ptanimg UOAft BUT sprmg prefnant Sen pieplant broaaceet Ipost- emergence) directed i Ouackgrass -- same as lot BCamS ece(M beats can 2 3 24 be planied ngnl alter plowing ift Ouackgrass -- same as lo* B E a NS 2 3 12 24 2-4 Seedling grasses --epMy overall irom emergence a ft lo ft-ieai stage ol sugarbeels 10 24 3 ft APMyunder beet lofcjge u<ng lealklters from ft-leal ft 10 24 stage ol sugaroeets unid my ere 14 ment tali IN3ARCANC florida Puerto RiCO directed spot spray UOAACANC directed Hawaii IU O A R C A N C lo w s ie n a sior spray ground aenai giound aer>ai 4 Spray grass m sprmg belore ctoie-m using 20 to 40 13 gsnona waiar ter aera Repeal 2 or 3 times as nteded Oo not ipray cane toliage Use 10poundsOOWfON Mm I00gallons waiar arm 13 prey grass miesiao aieas bvlore elose-m fteMSl as naeded Oo not spray cans loiiaga 3 4 Spray grass aliar can punhngor ratooning Re(M il 14 2or Surnes as needed pr.ot tocuse-m Donni spray cane lohage Same as lor f torma cans 14 S*a llubbte cane --Apply 2 S pounds on 30 inch bands Ift Ift on actively growing lonnsongiass or oetmudegress I I mtha spring Repeat m ? t o 3 v is it needed 2* lu b b le c e n e -- A p p ly o n a c tiv e ly g ro w m o I t 17 Ibhriiongiassoroermudagrass mine aMingusmga toft gauonsol water per acre Aefwal m 2 t o ) weeks rl needed 2* Plant certe --Apply on actively growing aeedlmg Ift Ift 17 grastes suen as )ohnongiass ana reouigisss Re peat m 2 to 3 weaka il naeoed l fie n i cane --Apply m sprmg m 3 to ft gallons ot Ift 17 a te i per acre on echveiy gowmg grass Seedimgs Aepeal in 2 io 1 week rf naedad fAtLOW ok fttU b iLI CANO Metileni or rafieel ueeim enii ft 7 Use m gram stubbie or on lauow land to contiol 2 3 ft quacfcgrass S*eimudagrass and lonnsongrass dui 1 12 mg the growing Mason prior to planting beans com culion Mdaioes sorghum soybeans and Sugaibvets THE8E FOOTNOTES ARE AN IMPORTANT PART OF THE USE DIRECTIONS 1. Apply w lx n grasses have begun growing w ell m spring. bul before heeding Spray lo u>el the g ras* without lu n o ll Apply when sod m oisiuf# n lugn such u t lie i $ tain of irrigation Um one or two applications per le iio A fo r bend or spot lieeim enl. th# emnuni o l spray. end DOwPON U should be reduced m proportion 10 tne eiee actually lieeled 0 o noi spray be<e sod wtdei Irud U ses Of vines Keep spiey o il cio p lofcage end h u ii Do not apply wiihm 30 deys ol harvest. 3. Do not g re ie livestock on treated etees duftng application season 3. Apply by aif Of giound equipment 4. II sod rem ains unusually dry afcei prepiani tieeim eni. e longer wading period may be necessary to avoid resume iniury lo the crop A ra in o f hall an in ch o i more win help lo move the herbicide mlo (he sod so that microbial degradation (breekdow niw iiliek place Wad &days after the ram belora planting suscepti ble Crops ft. I h it ireelm em wdl not conuol unemerged Seedlmg grasses ft. Keep spray o il crop loti age and Irm i and do not spray bare sod under Ihe trees Apply alter ram o r trngalton so ihat adequate sod m o n iu ia is present Use up lo J applications per season m orange, grepetrud. lengerme ano l>me groves Use low rale on very kgnt so il Do noi use m groves under drought stress diseased in decline, or sutUrmgliOm cold demage in Am ona and CaMorrua pray only up lo had ihe area ovar Ihe to ot, tone ot the trees. I I . Do not apply more than 12 po-mds per ere per season Do not apply within ft moruna ol harvest Do not spray cane I usage 14 Do not apply more then 20 pounds per acts swiftQ 24*34 month crop Cycle Do not spray can# lot>age 11 On pound per acre on 30 in ch bands is equivalent lo 2 4 pounds per sc ie on broad cast treatment baet H- Apply iMtore May 20 to evo*d tnpuy so can# OOwPON M can be u sed w iin KURON or 2 4-0 m accordence with Uoet and lo cal acorneie n o ttu rn e 19. Vanehe* C P 4 ft-s 0 3 a n d C P 4 9 -tM e r W u toseiant lo O O w P H VI m an other v e n eti Consult (tensio n Specialist con* cemmg tevponse ot new veneties Ift Ossi i a subs oblamed it mowed 2 4 weeks allei beaim enl and (endued to haaten pes lureiecoveiy Ift Pastures recover most laptdiy il mowed eoeqwateiylerlibred ampi m onture $made vadete end other good m enegenwnl preu lu e s are lotlow ed O esirab le peienruat grassa end torba (su ch as whda clover | may be lemsHMardy reduced m stand or vigor out sprmg lie atad pastures usually le c o w i Wtihm 2 to 4munihs undar lavor able co n i' F ail bsaua pasturas usually show e a COrery the following spring under s man agmni ana lavo rab le co n d itio n s Any annual yi tta e s praaent m ay be seitousiy m (wad m S4led Ift Minan less than tO ISo l Ihe p ea lu tea rea is bsatau graim g need not be oisconiuiued 9- O O w K M S4 may be used m comonation Sprays w ilh C b lC R O N products KUAON* or f ORMUk A 40* to conuol weeds end brush m addition lo grass ft U se no m ore then Vi pml ot sm U clsnt per 100 gallons o l sw an Do no aspeci repel g rass SOI CAUTION fo o t grass control and *** miury to Baa may occur d applied durmg peruMisot drouth Do not apply under diouih conditions unless crop miury can be toler ated F it s va rie tie s vary m totsrance to OOWPON M and MCPA Consult local ia lso ... sum S ervice or University SpeciatisiS lor turi ther mlormaiion ft. Do not apply when temperature is above S * f Using more than t pml ot surlacum per 10 0 gallons ot spray may unpiova grass co nu o l b ul also msy increase the m e ol crop injury As much as I pounds ol OOWPON M per acre may ba used lor beiisr control ol wild oats and ouaeftorass but also may mjura the beets she a lo ft tb rale should be applied only Irom ground equipment end as a spray duectad away lio m the sugar beet plants fo r aerial ap plication. us# at least ft gallons ol spray per acre OOWPON M el 2 to 3 pounds per acre may be used m sana m u combwvanoo with Pyfam m W narbicm a at its recom mended rales and lim es to conuol broadleal weeds as well a t grasses 1ft. Use no more than ft pounds ol DOWPON M per ecre postemergence pet saason Beau and tops may be led lo bvetiock 11. Do n oi use on land plantad so or so be planteo to red-skmned varieties or Wn*te R ose Do n oi spray p d a io plants 12. lo control astabbshed bermudegraiS * lo hn so n g iasso n g ram stubble or lauow land use ft to 1 pounds per acre m 2 or 3 applica tions 2 to 3 weeks aperl. or as needed Us tillage prior to planting I ha following sprmg on such crops as beans corn, cotlon polatoes. sorghum, soybeans and sugarbeete 21 O u rin g A eeulcitene Pastume unmewed---do not g re ie meat fu mis on beatao pasturas u n tJft reeks attar bealmeni end withhold Irom su cn g ie n n g lor tweak belare slaughter fo u rle a n weeks alter beaiment no wdrmotdmg par-' d is nec- issaiy Do not g iare tacletdig deny ammala On tisata d p a stu re s u n til |4 w e e a s a lle i beaiment Pastoree m ew ed-- mow 2 to 4 weeks allei besrmantd deseed D o not g is s e lac tslm g ot meat ammala on tia a ta d p a stu ie s u n til 4 * r * i after m owing Do not harvest hay bom Heated p astu re s d u tm g she se aso n o l appacatem 12 u m o*Uy the tower eie o l OO wPON U w i k r i R i p m l u t l u u i Since 4 is more sensitive thenuitMt desusle Mature greases end may Stilisi c o n s id e ra b le re d u c tio n onde unleveraaie conditions 12 Do not sow g ia ss seed unid ) so 4 weeks alter M eatm en! S p e c ia l su c h es a n n u a l sa g rili c an be laU seeded to ptovOe wmler pasties Oeter gr mg lor 10 weeks or tonger a*# psetm eni allowing adequate lune lo r IuIU w ai growtn to sustam graim g 24 C aultO N U se ot iluocaibam au hes 40 M l I I ISIA M EPTAM and :IA heib*nuem ty*nciesteiikulirijw> .y n bests bum in toslemergance i p p w r ie a e l OOWPON M Also anvuorwnenial conoilm ns k * i ause poor growmor reduced sugar ot Suga* beets su ch es unususdy co ki or wet weUhai orowih stress m sect or disease et lacs puur nulittiOA end high concenbeium ol saus m U a aoa mcreaae na ot uijury laarvii.re DU NOT A P P iV OOWPON U pos<ahei^en(e So Sugar beets 4 thmearbe mat heuncuSe was t(k p tid preptantmy or U siep-s yruwmg under adverse envuonnsentei (ee-oa u n le ss cro p m juty can ba iotaated M Apply only once per year M illO St A il J j < {> {; i ; ? i | (i .i j > DOWPON IVI Grass Killer READ ENTIRE LABEL BEFORE USING DOWPON M DIRECTIONS FOR USE It is a violation of Federal law to use this product in a manner inconsistent with its labeling. STORAGE AND DISPOSAL Oo not reuse container. Destroy by burn ing or burying in non-cropland away from water supplies or follow official local container disposal procedures. Use DOWPON M only as directed on this label. Before using this product read GENERAL INFORMATION. USE P R E CAUTIONS. TREATMENT DETAILS AND FOOTNOTES for each intended use. GENERAL INFORMATION DOWPON M grass killer controls cat tails: annual grasses such as foxtails, barnyardgrass. crabgrass. panicums. wild oats: and perennial grasses such as bermudagrass. bluegrass. guineagrass. johnsongrass. maidencane. paragrass. phragmites. quackgrass. raoulgrass. torpedograss. vaseygrass. MODE OF ACTION: DOWPON M is ab sorbed through foliage and roots and translocates through the plant system. Grass growth is rapidly inhibited but kill is often delayed. If sprayed grass produces new growth, another treat ment is suggested. SOIL PERSISTENCE: OOWPON M is readily decomposed in soil by micro organisms. In warm, moist soils break down normally occurs in 3 to 5 weeks. In cold or dry soil, and soils with little or no organic matter, slower degrada tion can be expected. WHEN TO APPLY: Apply when grasses are growing well and before heading. Adequate soil moisture favors good growth and effective herbicidal action. Application during drought or cold weather or when grass is maturing will be less effective. HOW TO APPLY: Apply by aircraft or ground equipment as a water spray to foliage which should be wet uniformly. Use enough water for adequate wetting of foliage, usually 5 to 10 gallons per acre by aircraft and 10 to 100 gallons by ground equipm ent. D ense grass stands may require up to 500 gallons for uniform coverage. For spot treat ment. use 10 pounds of DOWPON M per 100 gallons of water. Per acre rates are lor overall broadcast treatment. With band. row. or soot treatment the rates per crop acre snould be reduced in pro portion to the areas actually sprayed. Moto ci riirorfirtne SURFACTANT: Use any approved agri cultural surfactant in all applications of DOWPON M to improve wetting of foliage and grass control. For annual grasses, add Viz to 2 pints per 100 gal lons of spray. For perennial grasses, add 4 pints per 100 gallons of spray. NOTE: For some crops, note that less surfactant is recommended. Adding more surfactant to sprays applied to crop foliage may increase the risk of crop injury For non-crop uses, control of perennial grasses may be improved by using more than 4 pints of surfactant per 100 gallons of spray. COMBINATIONS: DOWPON M can be used in com bination sprays with phenoxy or other herbicides as indi cated on this label. Always note label directions and precautions for other products before using with DOWPON M. Do not use combination sprays con taining 2.4,5-T on ditch banks, around the home or recreation areas. MIXING INSTRUCTIONS DOWPON M grass killer is soluble in water. Add it slowly to the water while stirring or agitating until completely dis solved. Then add desired amount of surfactant. In combination sprays with other herbicides, dissolve the DOWPON M first and use no more than 8 pounds in 10 gallons of water. NON-CROPLAND USES Railroad ballast and berm areas, drain age ditches, fence rows, industrial sites and other non-cropland areas including forest planting sites. Apply by air or ground equipment. Tank mix combina tions with FORM ULA 40*. KURON*. or ESTER O N* herbicides may be used for controlling both broadleaf weeds and grasses. OTHER USES NOT ON THIS LABEL Consult Agricultural Products Depart ment, The Dow Chemical Company, P.O. Sox 1706. Midland. Michigan 48640 for registered use directions for DOWPON M in the following crops: asparagus, bananas, birqsfoot trefoil, coffee, cran berries. macadamia nuts and peas. NOTICE: Seller warrants tnat the product conforms to its chemical description and is reasonably fit for the purposes stated on the label when used m accordance witn directions under normal condi tions of use. but neither this warranty nor any other warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE, express or implied, ex tends to the use of this product contrary to label instructions, or under abnormal conditions, or under conditions not reasonably foreseeable to seller, and Ouyer assumes the risx of any such use 11e o a . - ---- 5 ill I LI X aH: a' f$ 5G 0--U3Ij O 2 1054 USE DIRECTIONS ON NON-CROPLAND PR08LEM Perennial grasses and cattails Annual grasses Control of grasses on forest planting sites Spot treatment 00WPQN M lb per acre TREATMENT DETAILS (note surfactant section above) 13.5-30 Good spray coverage of healthy foliage essential and retreatment may be necessary. With spray b o o m -- u se at least 100 gallo ns spray per acre. With hand gun -- use up to 300 gallons spray per acre. Spray cattails when 2 to 3 feet tall or during catkin development. 4-10 Treat w hen growing well and prior to heading. Low rates will retard growth of most g ra sse s and can kill certain sp ecie s su ch a s foxtails. 4-15 Use 4 to 5 pounds per acre on seedling g rasses. U se 10 to IS pounds on perennial g rasses. Wait at least 2 w eeks after application before planting forest seed|mgs. Use 13.5 pounds of OOW PON M in 100 gallons of water and spray to wet g rass without runoff. Repeat as needed. USE DIRECTIONS ON IRRIGATION DITCHBANKS--WESTERN UNITED STATES PROBLEM OOWPON M lb/ A Control of grasses such as reed canary, bermuda. Jonnson. pnragmites. cattails, and tule on Oanfcs of irrigation systems. 13.5 spot treatment TREATMENT DETAILS (note surfactant taebo* abovel Good spray coverage of healthy foliage is essential (a.b.c,d). if brown ing and die-back does not occur within tnree to six weeks, retreatment may be necessary. With spray boom use at least 100 gallons spray per acre. No waiting period is necessary before this water may be used for irrigation purposes. Use 13.5 lb in 100 gallons of water and apply by hand soray gun to control intermittent infestations (not to exceed fifty percent of tne total area). Spray to wet all foliage thorougnly but without runoff. This may go uo to 300 gallons of spray per treated acre, (a.b.c.d). *. Always begin spraying at downstream end of the section to be treated and work upstream. Oo not spray across stream, minimize contact of spray on water surface, and do not soray botn banks simultaneously. Oo not spray more than 2 miles of the same ditcnoank during any 24-hour period for ditches carrying less tnan SO cubic feet of water per second. It- Cattails and pnragmites (giant plume grass) are controlled best when new grow tnis2to 3 feet tall and plants are growing well. Fall spraying of cattails after catkin development is effective, e. Oo not permit fishing in treated waterways within the calendar year of treatment d. For grazing restrictions see footnotes 20 and 21. THE DOW CHEMICAL COMPANY ANO SUBSIDIARIES MIDLAND. MICHIGAN 48640. USA HORGEN. SWITZERLAND HONG KONG CORAL GABLES. FLORIDA 33 134. USA SARNIA. ONTARIO. CANADA ::: T r a d e m a r k of T H E D O W C H E M I C A L C O M P A N Y 1D0-5io5is, . e v USE DIRECTIONS ON CROPLAND (Before Malting Any Application, Read Appropriate Footnotes) CROP APPLES. PEARS A PRIC O TS BEANS |r* id k id n f| lim a snap} CITRU S groves <ltchs borders CORN COTTON FLAX GRAPES 00WP0N M APPtICAITOR 1%per acre TMATMINT DfTAtlS TOOT NOttS directed under trees 5 10 U se tow rate tor trees le ss than 4 years old Apply as 1 2 spot band or broadcast application d e f ted under bees 6-7 W e s t e r n a r e a s -- u s e s p o t b a n d o r b r o a d c a s t t 2 a p p lic a tio n S p rin g preptent e O u acfcg rass -- a p ply *n sp rin g o n 4 to 6 m eh g ra ss 2 3 4 Wait 4 d ays Plow or deep d isc Wad 4 lo 5 weeVs alter plow ing or deep d iscin g before plantinq Fan p re p la n ! directed under trees at least 4 ?eas old Spot or broadcast Spring p re p la n ! Spring p re p la n ! fall p re p la n ! Spring p re p la n ! p re p la n ! frepeat treatm ents! spot spray lay hy broadcast tlor lotail contro*! ` d ire cte d unde* vines t5 24 5 10 8 O uac^grass -- apply in tall (u su ally Septem ber o* O c ? 3 tober! on grow ing g rass P low o* d re p d isc to d ays alter application or in the spring before planting Use t pound m ?o gallons w itm and spray lo wet 2 6 without runoff Flo rid a and T e s ta -- apply broad c a s t at 2 to 10 d a y in te rv a ls C a lifo rn ia a n d Artta n a -- spot Spray g rass at 4 to 8 week intervals U se 5 p o u n dsp er too g allo ns w ater and spray to we! ? 3 7 g ra ss w itho ut runoM if needed maVe a second application in t to 2 weeVs O uackg rass -- sam e as for BEA N S 234 S 7 Jo h n s o n g ra s s -- sp ra y w h e n 8 to t? in c h e s ta ll Wart ? 3 3 d ays Plow or deep disc Wad at least 5 d ays alie* 4 5 p'ow ing or deep d*scm q before planting 15 O u a cV g ra ss -- sa m e a s lo r B E A N S 23 5-7 Jo h n s o n g ra s s -- Spray w h en 8 lo 1? in c h e s ta il Wad 2 3 5 3 days Plow and plant 5-7 B erm ud ag rass and (o hnso ngrass o n stubble o* fa l 2 3 low land 5 12 Perennial g rasses --use t pound m to gallons war* Oirect spray lo grass and W ep o il cotton plants Spray up to 3 lim es per season 5 U se directed spray under the cotton alter last lillage <n w e ste rn a re a s t A pply in 5 lo f0 Qallons w afer per acre o n 1 lo fi in ch 3 8 lia* and t lo 2 inch lo *tails Use with DOW M CP A m ine W eed Kitte* to add bioadteaf weed control to U se in b earing vineyards *n Ancona and C alifornia 1 2 Apply on 30 inch band cantered on vine *ow Keep spray out of irrigation furrows o 1056 i-ic/H CROP 00WP0N M APPLICATION tb per ere TRLATMINT DETAILS rooT NOTES PASTURE (p ^ la iitish rii pnrpnnial g rassrs such as P.mqo*aDrim itd^ flaia D ali'S ' and f cscut* grassesl when timsM' S ar growing well PEACHES ftu p d rd under trrr. PLUM S irn u N E S i d irrrlril Hlr Ir r e s 4 6 Sm utgrass control m G u ll Coast States including 3 1 IB G eo rq ia Apply b ro a d ca st at 4 6 lb pc acre *9 ? 6-7 ? r> 67 Sp o t treat w ith 6 Hi 100 q a l w ater in lt*oough*y wet sm u tq ra ss lolat|e W e stern a re a s use spot band or b road cast application Other a r e a s -- use 1 pound m 20 nations water Apply up to 70 g a llo n s sp ra y pc a cre W e ste rn a re a s - u se so o t b and o* b ro a d ca st application 4 10 19 29 21 *5 7j l2 yy POTATOES Sprrnq preplan! la preplan! pie* em erqrnce 6 Onacfcqrass -- sam e as lor B E A N S etcept potatoes 2 3 can be planted right alter plowing ft 15 O u a cV g ra ss -- sam e as to B E A N S 23 11 3 O rast seedlings --spray qas* hetoe emergence of 3 t t potatoes Can be used m com bination spray with rn C M E R O E 3 DimUo Amtne Herb'C'de to Q u ack g ra ss -- sp ra y to w e l g ra ss it 1co m e s u p a fter 3 i t planting and before em ergence of potatoes SOROHUM SO YBEAN S spring preplan! Spring p rrp la n t 5 7 Jo h n s o n g ra s s -- Spray w h e n 0 to 12 m etres la lt W ail * ^ 3 d ays P lo w W ad at east2, w eeV sbeto*e planting 5 5-7 Jo h n s o n g ra sS -- s p ra y w h en 0 to 12 in c h e s ta li Wad 2 3 3 d a y s P lo w o> d eep d isc Wa*t at le a st 5 d a ys alter 4 5 plow ing or deep d*scng be tore planting SUOAR BEET spring pteplani tali preplan! broadcast Ipost- em erqencel drrecled SU G A RCAN E Floda P u e rio Rco directed spot spray 0 O u a c k g ra s s -- sam e as to* B E A N S e*e e p t beets c a n be planted iig id after plowing 232 15 O u a cA q ia ss -- sam e as for B E A N S _ - t9 J4J 2 2-4 S re d im q g la s s e s -- apply o ve ra ll from em e rg e nce 3 9 to 6 teat staqe of suqarbeets 3 5 A pp ly und er beet fo liag e u sin g teat id le rs b o m 6-teal 9 10 ?4 stag e of su g a rh e e ts u ntil they a>e 14 in c h e s tail 4 Sp ray g rass m spring before close-m using 20 to 40 , 3 gallons water per acre Repeat 2 or 3 lim es as needed Do not spray can foliage U se 10 p o u n d s O O W PO N M in 100 g a llo n s w ater and spray g rass infested areas before ctose-m ftepeai 13 a s n eed ed O o n ot sp ra y c a n e fotage SUGARCANE H a w a ii directed SU G A RCAN E L o u is ia n a sp olspray ground ae*'a* FALLOW on STUBBLE LAND ground aerial pieplant or repeal treatm ents 3-4 S p ra y g ra ss after c a n e p la n tin g or ratoo nm g R e p e a l 2 or 3 lim es a s needed pno to ctose-m Do not spay c a n e fotrage Sam e a s for Florida cane 14 5 'r 9 tu b b tf c a n e -- A pp ly 2* p o u n d s on 30 in c h b a n d s I5 ." t 0 . o n actively g row ing |o hn$ongrass or berm udagrass *2 n the sp rin g R e p e a l in 2 to 3 w e e k s d needed 2*4 S f u b b t e c a n * -- A p p ly o n a c l i v e t y g r o w in g 1 6 t 7 lohnsongrass or berm udagrass m the spring u sing 3 tp 5 g allo ns of w ater per acre R ep eat m 2 to 3 w eeks d needed 2* s R iant ca n e -- Apply on actively grow ing seedling 1 5 1 6 17 g rasses such ns iplm songrass and raouigrass R e peat in 2 lo 3 w eeks d needed 1 Plant c a n t -- Apply in Sp' ing in 3 to 5 g allons of t6 1 7 wale pe* acre on actively grow ing g rass seedlings Repeat m 2 to 3 w eeks d needed 5 7 Use m gram stubble or on fallow land to control j 3 5 guackqrass bemudaqass and lohnsongrass dur 11 12 ing the grow ing seaso n prior to planting beans r n m ro llo n ppfaioes sorghum soybeans and sugar beets THESE FOOTNOTES ARE AN IMPC 1. A pp ly v m s s c S h a v e brM|Mi |m w im w e lt in sp> j u I b r im h e a d in g S p ay 1 w e t th e g r a s s w ith o u t ru n o ff A p p ly w h e n so irrig ation. U se o ne or tw o ap plicatio ns P " 1 se a so n Fo r b and ot spot treatm ent ltd a m o u n t o f s p r a y , a n d O O W P O N M . s h o u ld b red u ced In p rop o rtio n lo the aea a ctu al!' treated Do not sp ray b are so il under frui trees or vin es K eep sp ray o ff cro n fohagi and Iru d . Do not apply w ith in 30 days o h arv e st. 2. Oo not g raze live sto ck on treated aea d urin g ap plicatio n se aso n ^ 3. A pp ly by air or ground equipm ent 4. If so il rem ain s u nu su ally dry after preptar treatm ent, a longer w aitin g p erio d m ay b n ecessa ry to avoid resid ue in ju ry to the cro i the h erb icid e Into the so il so that m lcro b *; d eg ra d alio n jb rea kd o w n jw lllta kep la ce Wa 5 d a ys after the rain b efo re planting su sc e p l ble cro ps. S. fh ls treatm ent w ill not control unem ergn seed lin g g rasse s 0. K e e p sp ra y o ff cro p fo liaq e and fruit an do not sp ray bare so il undor the trees Appi after rain or irrig ation so that ad eq uate so per seaso n in orang e, g rapefruit, tanggnn an d lim e o ro ves. U se tow rate o n very bat so il. D o not u se in g roves u nd er d ' o ugi s t r e s s , d is e a s e d . In d e c lin e , o r s u ff e r in g fro< co ld d am age In A rizon a and Catitornu zone of the trees 7. OO W PO N M m ay be used in com bm aho Sprays w ith E S IE R O N p ro d u cts KU RO N or FO R M U LA 40 to co ntro l w eeds and hr us *n a d d itio n to g ra ss. 9 , U s e n o m o re th a n ' ? p in t o f s u r fa c t a n t pi 100 g a llo n s o f sp ra y D o not a s p e c t api g ra ss k ill CA U TIO N Po or g ra ss co ntro l an in ju ry to H as m ay o c c u r if ap p lied durtn p eriods of d rou m Do not apply u nder droui co n d itio n s u n le ss cro p in ju ry ca n be tole a te d . F la x v a rie tie s v a ry in to le ra n c e t OO W PO N M and M CPA C o nsult lo cal E * t c son S e r v ic e o r U n ive rsity S p e c ia lis ts for fit ther Inform ation. 85 F U sin g m ore than 1 pint of su rfacin ' per 100 g a llo n s o l sp ra y m ay im p ro ve gra* co ntro l but also m ay in crease the risk cro p in ju ry A s m u ch as 8 pounds < OO W PO N M per acre m ay be used tor belt' co n tro l of w ild o ats and q u n ckg rass hi also m ay in ju re the beets The 5 to 8 f ra le sh o uld be ap plied o nly from grour equipm ent and as a sp ra y d irected aw; fro m th e s u g a r b e e t p la n t s F o r a e r ia l ai p licatio n u se at least 5 gallons ol spu p er a c re O O W PO N M at 2 to 3 p o u n ds p a cre m ay b e .u s e d in lan k m is eom binabc w ith P yra m ln W h e rb ic id e at rts recon m end ed rates and tim es to co ntro l broadle w e ed s as w elt as g ra sse s 10. U se no m ore than 0 pounds ol DOW PG M per acre postem ergence per season Bee and top s m ay be fed to livesto ck 11. D o not u se on land planted to or to t planted to red -skin ned varieties or W in R o se. D o not sp ray ootafo plants 1?. To co ntro l estab lished berm udag rass jo h n so n g ra sso n grain stubble or tallow tan u se 5 to 7 p o u n d s per ace In 2 or 3 apphc lio n s 2 to 3 w e eks apart, or as needed U IHInge p rio r to p la n tin g , the fo llo w in g sprit on su ch cro ps as beans, corn, cotton, p tetoes. sorghum , so yb eans and augarbecb PART OF THE USE DIRECTIONS Oo not apply more than 12 pounds per e per season. Oo not apply within 5 ntns of harvest. Oo not spray cane oliage. 00 not apply more than 20 pounds per 'unng 24-36 month crop cycle. Oo ,ray cane foliage. One pound per acre on 30 inch bands is ivalent to 2.4 pounds per acre on broad: treatment basis. Apply before May 20 to avoid injury to e. QOWPON m can be used with KURON .4-0 m accordance with label and local ommendations. Varieties C.P. 48-103 and C.P. 47-193 are tolerant to DOWPON M than other vaes. Consult Extension Specialist con- ung response of new varieties, fest results obtained if mowed 2-4 weeks * treatment and fertilized to hasten pasrecovery. Pastures recover most rapidly if mowed, luately fertilized, ample moisture is made abie and other good management pracs are followed. Oesirable perennial ses and forbs (such as white clover) may jmporanly reduced in stand or vigor but ig treated pastures usually recover within t months under favorable conditions. Fall ed pastures usually show excellent rery the following spring under good man-nent and favorable conditions. Any ial grasses present may be seriously in1 or killed. /hen less than I0%of the pasture area is ed. grazing need not be discontinued. razing Restrictions t unmowed--do not graze meat amtreated pastures until 8 weeks after rnent and withhold from such grazing for ek before slaughter. Fourteen weeks treatment no withholding period is necry. Oo not graze lactating dairy animals reateo pastures until 14 weeks after ment. ures mowed-- mow 2 to 4 weeks after ment if desired. Oo not graze lactating or t animals on treated pastures until 4 <safter mowing. Oo not harvest hay from ;red pastures during the season of ication. Jse only the lower rate of DOWPON M on agrass pastures since it is more sensitive other desirable pasture grasses and may er considerable reduction under un-able conditions. a not sow grass seed until 2 to 4 weeks - treatment. Species such as annual ass can be fall seeded to provide winter ire. Oefer grazing for 10 weeks or longer treatment allowing adequate time for :ient growth to sustain grazing. AUTION: Use of thiocarbamates such as .SET. TILLAM. EPTAM and PRE-BETA cides may increase risk of injury to sugar from the postemergence application of PON M. Also, environmental conditions i cause poor growth or reduced sugar of ' beets such as unusually cold or wet ier. drouth stress, insect or disease atpoor nutrition and high concentrations i f -1 the soil increase risk of injury, i 0 0 NOT APPLY OOWPON M mBigence to sugar beets if thiocarba-erbicide was applied preplanting or if sgrowing under adverse environmental :tions. unless crop injury can be ted. iply only once per year. 130-1 J579 -cg:!sH-0.S5 Hg a ^2 iI!sE 5 3 3=5 2 o 5S*0-0 2-0 M -8 - >i : o i 2 * e Oa o ? t i -Jq t s k ills s i s- _^ iSs2su . a u w Z o 0-8 S - S i a i e O 2 S 5 2 }S oo"duhof p2a a E <5Sj-= 5L-a-= o E s X* * i2 1 * S 5- 0 - i? c J S i' 3a--1.0 - -o o o 5-p U i H l -s .9 o - 5 2 5-2-0 ? -S 0-2| Ig * 1 5-s0 ia - 8a.1 *225)^uo33do>o-oC 5"- 21 3-J=j W si t i n -- 32 2 2Z 1 3 '2 oj o -> 5 - II "" S" O| I |i Ofl 0 o -4 o t r .2 c V.0So5;i s j - gi c i S2 0>-- si o --o . ~ --* 2 < 9*3 u a o--"- 3-fl c< l2= w e 2>,*-2i -^0 5 " s 9 o og Ot<S a^aLr-ar_?^ * 5-1 2 w 9- S^S =O* 5 ca a c .s 41 0t w-- ._0 SS o-o j -c * 0" s oo v< i o* 5 e 0 J5( 5? we < w 2r 0 ac S2 iS Z uj O i TJ3 " 2 0,,0 2 f - ^3 ^ IO -c a -p O^ j": s QUJ u H i t ,s aiQ 2*1 s "9 5j SSo32-^^<a-o* " 2a 2a -o ^ * ^ c -a c Q S 1 003 ro* -oa i- IS ax si 2 ? <N da -- 0SC _=a 2f c .1 4a1.2: "9 2 . Q o X 4 2^0" " 8a9 -VOQSJ^"u0 2 3 - % a --.5 s 2 1 ? - S- 5 3 x.S i2 =o I =? 2-8 o x c a5 y (A J o-- o o 2*355-"3 - 8 Jt eT |^ | <n2 i | c .1 1 ~ - - 2 = -SJ , 'S 3 S I 2 S o i l St (<j jo>-.5b9;I10l. i*_z3-O12 jM8g-s>.8lj J< 5 l o -?ssg.S 8- 3* O3 --ffl v> -0S2 z 01 2_- '-".- 22 dll o J03 .z= Q S 82 g 2-5 a -' 5 o s ,S # e S ;; o3~ *.2 5 2 ^ 2i 7 Uifi 0 * SI - o ld 8 .-S 0 g2JaS3c Oa0O--022o-_S-oSo.-cI;cl2o2o^| `.-j -2a2Z1I o>,,-'"3o.-2goZ9t 2s '-: 5 3 g.a.S?| a * 2 . 1. J 2 o jj 3 l|- e I ^ o -s '5 i g -I o {2iS:5a-i---= 8,, 2"-0,, S1^i1 S .2 X < f - 5 , 0 .1 =8 P S ^ i i | Uo aa -n0-a5 ^J J-- 2a -0d 3 z 2 ~ -oeacod 1 o c~ 9 s e o 3J3-5 ,,O 0w 3 -Soal*i3-*00 * 93 " 8.1 o ^ l - f j 3 *2 I M P . Ial a=aS1o2-ia^05j "-53a-a30.a2-O--- 0> ^ "rt I o^ I 0 - ? g o o -5 S>- s -gS --- a- . o2W-.c--SC0 g, < <<3 W- 3 . r t f - s I->3x ! 4 S m 5 - - "=0 -2- "-3 ao a*1112J%;"oSo"3a! -*c2-85Sc5>9? 2 0 o - ,,-2-c ~ p<c Q c w* 2o 0a-3e J5i v ! 2 2-5 3 2.2 i s I 3-3 3 0 --0. .o> > * 0 c 3o . S * 1 1 il ^2*2 wwS -0 1*,, 3 = 3 O2a w0 9fc- 3 w0 _ o5" 2 J; 4 1 3 S. -M- 2 2 5f i in * 0 A *2 Kw 0 - 2OO'O0 ^ > =Oa s**2-J"uc-- 0 - y 3 a. : x j . -0 "S0*33 `w jx S a c o o^ > .>^u9J.Ho _ -a5 rSc 2S *S C= 00 2 2 8 cX 3 = 3 -- 2 | 2 2 '= I el | i 0 v 0 0 -i X O j ^5-8 ^ 3 .2 .2 3 2 i -s-SS s gS -S 3 I - , - c ! a- 3 i =0 3Q3 Jt3 w2 1 .3w^j>' s-4) 2 * wi*.4> sil 3 3 o e = vi. c f o^s c* o0. g5 S .z2; o 5 1 5 5 - g oc- 5 ..s-s -5-2x":zz S 2 SS.|.|S1__swi =5W0--I1CC - -- 5 1 j2 ia --.3 a .5 0 I f a . S ^ - 5 3 fe s P - k i o - * O- saS-<oaO3 S00| J" i a iu --"2 -J 0O - MR rf c^-a^ sIx1-o N- .s53 o^. oc3".So c 8 a f0c 058.=5^Q1. -8 3 "I rf-*J 3 S3 3 0 Q -8 >-5 Sz f1-B 2 2 : S-Soi S 2-g o I l j o lo r s M - w3 2 oZ S i 3^ i p . 0 ^ .w "8 3 =- 2A * --o-20 --ai a 0a --S5 ^ 2 d --n 0 30 *5 - .5 ^ --%w c . a 9 O oV?.-_0S-SiS._i?lSa---l3S0 I.wf--Vn0 20. 'S J 2S - - .-a | 3 1 o"5 3 5 5 o" sw Oa S*o SiS I ea-s* O z l z o'S- g-l1 -5-- 2 9 1J0AS 8S 0 jO 32 E i 1 _ 8 i ^ ----Z 2 , >.3-5-0 Sc;? 031 XO C.. 2 0^2 2 8 .? S l^ S i-g i-S g S il o z 2 > 1 s-8 r I -3 -i Oa- e .2 o* rS -5S33 yS '! . -- - 1 S 3 ff-g* 83 Si 23q0 a** u-_0cs. so| d3i pc-1d as .on^. --1fcl w .2 *-a o^3 S3 J0.--a.'*--o"u25_J",,25 -25 1 d: lS f `Z o S 1 oO 35 =o-2S .320S'2.. ?O o I o S l - i - o j s f .5=5 5 o o l 0 2 -8 8 J 1 8 1 ^ 1-1 j 1 g 3 -- 8 0 .= a ; X 3. b " -3 i g - a * O 8 " O 0 < _ ~ x <8= O 2 s | i ^ 1 3 - 1 o~ Z S I" m"35. 8- -02 8s "[ ^ S S -g lS -S o -E E a ." a 5^< 7 | S i; ^d i2a"J S5o. o- 425 -i"a3- "aao,. > 3-5 9e 8e 2 .3" 4a1.-5p u a 0 5S - s 35 S d a o 2 a a e >J3 c w ^ TJ - a l l 8 l l rs w=3 o9s3*.0s8 *.oo1qj2f.=-'--i35.5eue"09 9 2 a c 0c 5"3* ^c o8. "8a195- 5.-2c8a=0C*4-"-i58O^&s3S2:i.2^^=-3^8>.r-a.QC-.j..Val3Xw3U>=T-mzqpO-40a20c.j51-.A1jwx9a . w 41 ? w^ s =2j i r f - S 2 -s 3 i z l ^ . s i i-5 2 2 m `3 l s J | 3 _ o ,, _ .5 js - J l 1 - O0a-. a- 5 0x 2* 1.aa1>1aa*~aIIuO ^ 0 5 <0/> 33.^ Q r- vo o -v H $ ` gflCIl al ***>j ****, DIRECTIONS GENERAL INFORMATIONS; DOWPON C Is a highly eflecllve, low-cost herbicidejorcbiitrol of established annual and perennial grasses in rj&nwop areas such as drainage ditch and drainage canal^ani,;roadsides, lencerows, headlands, around building ^.bthrfann and indusbial structures. Dissolve 15 poipds^jjf. DOWPON C In 100 gallons of water and add ?J|jftrts[ Of.DYN^WET*-wetting agent Included In this^pcM^e^pi In sufficient1volume to thoroughly wet all grass ioUagiThis will usually require at least 200 gallons of sp r^ .p e^ e treated., t o c o n t r o l jo h n so n ^ r A | ^ e r i| u d a g b ^s s , OTHER PEST G RASS|^uib^^ time when the grass isgrww^aiw iffihenusbtfdurlng the spring or summer waftuntil the firetseed heads appear -usually when Johnsongra^ Is 20 to 40 Inches tall or when Bermudagrass' Is 6 to 12 Inches talL Follow up with another treatment as required. In late summer or fall Allow the grass to regrow to the growth stage described above before re-treatlng. When the first treatment Is made In late summer or tall allow the grass to reach the first seed-head stage, but apply at least 2 weeks before frost. A (ollow-upapplication may be needed the following spring or summer. Two to four well timed and thoroughly applied treatments during two successive growing seasons should provide excellent control of Jotinsongrass and Bermuda grass. Dead grass may be burned one month after treat ment On cattails apply when new. growth Is about 3 feet high up to first seed-head stage. Re-treat as necessary, v. TO CONTROL MIXED SPECIES^NCLUDING GRASSES, BROADLEAVED WEEDS AND WoODY PU N TS: Apply a tank mixture consisting of 15Vpounds DOWPON C, 2 quarts DYNAWET and 2 to 4 quarts KURON* herbicide in 100 gallons of water. Spray tothoroughlywet all vegeta tion. Follow use precautions for^both 1D.OWPON, C and KURON when tank mixtures are ImployecL TO SU PPRESS BERM DOWPON C dissolved In 2 to wet the Bermudagrass i should provide (jood growl banks and slmlliir places t the soil in placi Apply a constitutes a problem. Ri may cause considerable kl conditions such as vigoroi Do not reuse container. D --------- U$jE PR DO NOT US ON U FOOD CROPS. To avoid Injury to de spray or spray drift i contact foliage, or roo lawns and other desli get into water used to tic purposes. Flush spr of water immediately a tlon of later sprays or WA KEEP OUT OF R HARMFUL I MAY Cf Do Not Get in Eyeajon i Avoid Breal In e a t of eontaet, Im m tdiata w ater lor at la a tl 15 m inutes; m eva contam inated etotftJng at NOTtCti S*Uar warrant* that the prodt rataonabty fit ter ma purpom atAtod ei Of MERCHANTABILITY or FITNESS FOR Ktonda to tha uta o< (hi* product cor condHlonj, or under condition* net raaa tha risk of any auch ua*. THE DOW CHE ABOI MIOIAMO, MICHIOAN 4 1 1 4 0 . USA CORAL O A llf 0. HORIOA ) ) 10 Sr * FORMULA 40 H ERBICID E CONTAINS ALKANOLAMINE SALTS OF 2,4-D Acid Equivalent: Pounds per Gallon I; ; For the Selective Control of Many B rp a d le'a l Weeds in Non-Crop Areas. Grass Pastures. Rangelands and in Certain Cjops. Also for Control of Trees by Injection ACTIVE INGREDIENTS: Alkanolamina Sattst(of the Bland and bo- propond aorta)of 2.4-Ptcdorophanosyacotlcadd.........$9.7% INERT INGREDIENTS!.................................................... 40.3% 2.4-PtctitoroptionoxTcortc Add EquNdanL.......3SjS% EJ>JLRagbtiKionNa.4e4-1-AA EJ>A.E.No.444U-f tSStb n Dm Mm rota!*# toTM at 2 4 -0 and da not n taaaa anaueh sopors Boat Baae d r ta induco told a t odlocont urcopUBto C r o a t . AGRICULTURAL CHEMICAL Do Not Ship or Stort with Food, Feeds, or Clothing PRECAUCION AL USUAWO: SI ustod no la IngMm. no V I M otto producto basts qua la atiquola la haya (ido azpllcada ampHamonlo. TRANSLATION: (TOTHE USER: Ifyou cannotroad English, donot uao this product unti tha labol has boonfuly osploinud toyou.) CAUTION K E E P O UT O F REACH O F CHILDREN HARMFUL IF SW ALLOW ED C A U S ES IRRITATION O F SKIN AND E Y E S Do Not G et in Eyes, on Skin or on Clothing In casa at contact, flush .yaawCM notar tar at Mast 15 gat medkat edsndoie e sa h tin * cap and planty at m a r . R nosh contamlnMad ckuhtng batora m i n . Da not oaar cantatalnaMd O O' >* 18.j? L / 5 8 6 - 1 1 4 2 PRINTED IN U .S .A . IN OCTOBER, 1 9 7 5 REPLACES SPECIMEN LABEL 8 6 - 1 1 4 2 PRINTED IN SEPTEM BER, 1 9 7 4 DISCARD PREVIOUS SPECIM EN LA B ELS, R E V IS IO N S IN CLUDE: ( 1 ) U SE ON ASPARAGUS ADDED ( 2 ) U SE ON STRAW BERRIES ADDED ( 3 ) PREH ARVEST A P P L IC A T IO N ON CORN ADDEID. GAL . < 8 ^ K U R 0 N LOW -VOLATILE BRUSH AND W EED H ER B IC ID E Contains Propylene Glycol Butyl Ether E stera of Silvex Acid Equivalent: 4 pounds per gallon CAUTIO N K E E P OUT O F REACH OF CHILDREN HARMFUL IF SWALLOWED H AY C A U SE SKIN IRRITATION Avoid Contact with E yes. SJdn and detM ng THE DOW CHEMICAL COMPANY amA uBS'Di-A^X, ^ 1 j. MtDlA^O MlCMlGA\ J06-1O USA UiCHStfSfrZfRiA\D MO-.C CORALCASUS FlORlDA 33H-: USA * ... ThI DflAC Mi r.,TiAHR:0 CAVAit. COVPAS MM s*... O "90T OI (Wh in Iuh I If extensive oreo o* treoted ot on* | CenruH your let* fb h ond gome ogency b*ior* opplylng tho product. W ((D CONTROL IN R IC I T r ia l 4 to 6 m l u o ft*r w iw fe m c t of th* ric*. W h rri flooded. tr*ot U l n 7 ond 9 weeks offer seeding, whm p io n ti hoi emerged above wotsr ond loaves ore standing erect, Um I f e I* 3 p in n of D*d-W**d Sitvex LV p*r ocr* m the omouni of wafer ftu d o f for w o n distriKrfidn. fo r many situations, 2 pint p*r ocr* is adequate. W h*r* weeds Im d to be nw> tonf becous* of poci*. oge- or growth condition up to 3 pint II gnr* ben* control. Tr*ot*n*nt aftor flooding i inuolly w l* then b*for* flooding. Conlu ll y o u Slot* Experiment Station or E*t#n*ion S t r v ia for sp*cif<c loco) recommendation* W HO CONTROL IN SUGAR CANt LOUISIANA for ttw control of wild lettuce, ducory, curled dock ond other fa m stubbted con*, u m n* Quort of DCD-WEEO SlLV EX LV * 13 golion* of wot*f per ocr* of soil actually treated- Apply o r * tho woods on fh * row (approxim ately enoUurd of th* total aroo) when woods or* growing vigorously end ^ k r ^ t l e y sendd up_o Ms*od stalk. t A second applicaotiioen can bp*t i it needed. NOTE: Do not moke p o t emergence application ^__K___rpcane m 3 to 3 f t teat foM. Appijcotien should be mode before onorgene* of shoots from seed pieces or onmodiototy otter shoverg ond off-boning. CAUTION Harm ful M owoBo TN s product and Avoid c ontact wi thoroughly with t ____, i containing I f m o r cause skin Irrite i ayas, sk in and clothing. I f euptin d, ' I l-o--o-p-..I nI caso o f eye con dot far 10 i U d t r no tb oaialo n cas shmdd this herbicide product c r any 2a -D or X A fi- 1 wood klb srs be usod m tho vicinity o f cotton. sv-m---oi.o...o......,...p...a....w.....n................ inrospees, senotwwduis or other suscoptMo crops, a s sever domogo noay irceMsult. Extreme cor must bo w r c U d to p o n tt d ietin g o-*f thi's mi aterial. Do not opp*y on M r days. (Coorso sprays ora tossi lIikely to d n f t ) A Jfttough th is product h as beon formulated svfth low volatile esters e i rdsr to reduco the hasard o f vapor domogs, very precaution must bo m erch sd to prove*it b*hry to s w a N b i t plants bt tho v k M t y . Vapors from this product ot high temper, otures m ay cause pip#y to suscepfcbi* plants proving In the hnmodlote vtdnrty. D rift mow cause Injury to susceptible plants adjacent to tho a rea o f application. Oo n et sao equipment usad in oppfj hig DCD-WEED SlLV EX L V to apply m octio d os, fungicides, or other materials to A c t p i b i craps. Do not ra ta* this container. ^ V n o t star near fertilizers, seed insecticides, hmgictdss, at foodstuffs. Application la greasy areas may serausfy domags or destroy clover or bent grass if they ore present. Do not u m or star* near heat c r op*n flem *. Avoid cantominolien o f water used fa r domestic or brigotionol purports. Misuse os to Quantity, timing or meth od of oppllcotion con com * domogo or Iniury to emmets, persons, property or craps. Do not reuM contolnet. Destroy by burying in a solo piece. Do not bum. This product Is tonic to f h h od risk of ( NOTICI Ior ImeCML i an ft* fob* 3 % A O 03 N 3 CONTAINS SlLVEX - 4 LBS. PER GALON C A U T IO N K*p Oat f Rendi of CUMtm S S not FANO. FOR AfOtTJOHA CAUTIONSL; LOW VOLATILE E S T ESPECIALLY COMPOUNDED for USK ON BRUSH o af WOODY PLANTS in PASTURES, RIGHT-OF-WAYS ami TIM BE kND ofACTIVI IHCRtMIMTt bsodW bM r S b u Q tlAJ4lkNontt<itarri peciento im T iH C R D im n _______________________________________ Equbobnt to < U % S lb .* O <2.4.>-McMoroptonoy> I EPA Reg. No. 148-479 j* , v-o% iw.6% ntc oeld) 4-70 .THOMPSON HAYWARD CHEMICAL COMPANY DIRECTIONS OKI U H M A D D lM C n O M S, C A U n O H AMD M O V ; JTA IlM tM TJ C A M flllL Y MIXIM* WMCTI0H ODOU one-ho] g woter er o*t ond m i* ^ ^ m x t u r !T ifu n H o rm . Continu* muting wh*lo sprOY get MID brush killer oil preys. 0^-W ~dJ|*v., lv ^ t to SA S a ; JT T _ [NX, crviw i i w . "' ' lfoigfhotn-olw*hiocyhi.cohnighbwaycos,ntrollepddosotulornesg ditch banks, fence raws. ond on rongeloriot 0 0 Pvrwum power lm-- ATPUCATIONS Of D W 'W llO SlLVEX LV WOODY PLA N T ANO M U S H fO U A Ct TM A TM IN T - ? = S kl n w Appt* SLA ,, , M . mor S im t M Z S b w M i . On p o i " " b r ono ^ " S S S i T Y t T r I0 p o i - n Of w gad a cMOfts o f r S m Hm o f w m lor odd ^ - V T a v T r a S f ^ i n T o <Sm Jn5rm d oppiy p ^ H 2 s a w . - . o ' w ? "* w 1 " '" - OU b llno " " "W h *- k Il St b -is is irtrs*-J t S . ! fou b o l onU o t m p ~ b U oored ridchwood, ond block modle b **P*f^* * j y . quarts bi 2 3 fo 3 m . u p t o 00 gallons per ocra, m ay w * * ' 11 *,,-- ___ rntl. f m u ogscessivo domogo so S * S s S s ss watS Ti u S r o * SoUppmramaedrdwnro^ritttihweatwear tei trwsuyrliowco. T-o rapr pTly ^praoppeiir-Xriyr., lier swt d C 'wtth enoush * foca with the SSW"-TM iOmocoi yienmgiry Q1u/3otationUdLopt tet i singla operation. 1 LOW-VOLATILE BRUSH AND WEED HERBICIDE Contains Propylene Glycol Butyl Ether Esters of Sijvex Acid Equivalent: 4 pounds per gallon ( FOR THE CONTROL OF MA^JY WOODY PLANTS. HERBACEOUS ANNUAL AND PERENNIAL) WEEDS. AND AQUATIC WEEDS. A CTIV E m O REDICN T: M v m , [E-tM ^-THeM orophonosy) propionic A dd] Propytono Q lycol (CtHtO to CvH irO i) Butyl EUm r Ecto r. IN ERT IN O OE D IEN TR. 8#v#x(2-(l,4,$-Trtcldoropbonoxy) propionic A dd] N E fc Eq u ivalent! 4 $ J% ~ 4 pound por g rtw E .P A BogUtrmdon No. 4S4-1W-AA t P J L EoL N M II-1 AGRICULTURAL CHEMICAL ! Do Not Ship or Storo with rood, foods, or Cloiiag PRECAUCION ALVOUAMO;H m M M Im laddk Mt hoi* M n n n i u > > T n f w H > --o p w p -- " ; * . 11lAW ATldW !<TOtHEUtet-.*r*i''-'V -.ii-g a -sw iw lw n ie p m h e lw ie CAUTION KEEP OUT OF REACH OF CHILDREN H A R M F U L IF S W A L L O W E D M A Y C A U S E SKINIRRfTIOH. .Avoid C o m a c t wlth*," Skln and Clothing 3  LOW-VOLATILE BRUSH AND WEED HERBICIDE . Contains Propylene Glycol Butyl Ether Esters of Silvex Acid Equivalent: 4 pounds per gallon FOR THE CONTROL OF MANY WOODY PLANTS, HERBACEOU - ANNUAL AND PERENNIAL WE E DS. AND AQUATIC W EEDS. ACTIVE INGREDIENT: SHvx. |2-(2.4.5-Trichiorophnoxy) propionic Acid) Propylon Glycol (CiHaO to C*Hi*Oi) Butyl Ether Estr .. 69.2% INERT IN G RED IEN TS:................................................................. 30.% SvxJ2-(2,4.5-Trichiorophnoxy) propionic Acid| Equivalent: C5.S% -- 4 pounds pr gallon E.P.A. Registration No. 464-162-AA E.P.A. Est. 464-MM AGRICULTURAL CHFMICAL Do Not Ship or Store with food. Feeds, or Clothing PRECAUCION AL USUAMO: SI I* baya Mdo a la b e a b a a TMANSLATIO: (TO TT< USCM: N ( N caaaol raaO C g M . to MMa Ma labal h a t baa M y a a p lib u b la yaaa.) CAUTION KEEP OUT OF REACH OF CHILDREN HARMFUL IF SWALLOWED MAY CA U SE SKIN IRRITATION Avoid Contact with Eyes, Skin and Clothing 5 GAL/18.9 L NTED IN U . S . A . IN DECEMBER, 1 9 7 4 f MEN LABEL 8 6-1*092 PRINTED IN SEPTEMBER, 197 3 NCLUDE: ( 1 ) EPA ESTABLISHMENT NUMBER ADDEL ULTURAL CHEMICAL STATEMENT ADDED .h .- -w K' * s ' K> GRASS KILLER '} ' * < iiV '* / / TV* - / W ACTIW MOMMOCTIt & U -W e N w w w lw AIM , Sd<u l a . . . . i l k OiIm35m)f(ot*uOttaeiNetnort>..*.tr.o.e.t.o.t.o.e ,..47J% TrtohtortactOt Add. I 6 * w t o n ....................M J% TrtcNoro>cttoActa loutoet o a t . J T J * . IMCRT tNOMMCMTtt ............................... 144% U X li a l r t r u t a No.444431-ZA AGRICULTURAL CHEMICAL Oo Not Ship o r S ta rt wfeqFood, Feede.'oc Clothing MECAUCiON At. UOUAMOt M 'm * 4 a t tot to**, m m * t * t iCtl iHMIiMl* m if I t fetft M l l . t t l f I t f l M H M l TRANSLATION: (TO THC U U K l H H i l l n t t tt Ml iM>tttKt i # i t i i n iH tM rm nii u . | i i i i WARNING K EEP OUT OF REACH Of CHILDREN HARMFUL IF SWALLOWED MAY CAUSE BURNS Do Not Gatin Eyea, on Skin, or on Clothing or Shoas Avoid Braathlng Sp riy Mist In c a t * of co n ta ct I m M O i l i l r flush akin or t y t a with plenty ot w ater for at leaat 19 mlnutaa; lor t y t a . t a t m edical attention. Re move contaminated clothing and w a th before ro-uat. RAPIO TO P GRO W TH K IL L LO N G TERM CO N TRO L I / i C O N T A IN E R S ObE W ETTIN G ^ DYMAWET AGENT 45 LB. OF DOWPON C PLUS 3 --2 Quart Cans of DYNAWET Wetting Agent 106^ o-> ly S E PRECAUTIO NS - \ v` Apply this p rad u ctan fyras sp e cifie d an this label a r on supplem entary v reg iste re d lab eling . B e su re that use of this product conform s to all aopbcabfe regulations. t c f a a v o i d injury to a e sira b le p lan ts. 0 not allow sp ra y or spray drift containing QQWPQN M to contact-foliage or roots of any such plants. -r in c lu d in g la w n s a n d o th e r d u r a b l e tu rf F lu sh s p ra y in g equipm ent wilft plenty o f w ater m rftedt^ teiy after u se fa avoid contam ination o f .la t e r sp ra ys and p o ssib le gTpsiQn ' L o c a l conditions a ffe c tth e t^ e ^ f herbicides State Agricultural Etpen/-*/ .m e n t S ta tio n a n d IUte<TSt<$ecvfce reed s p e c ia lis ts in man-, s ta te s '; issu e recom m endations fq fit lo ca l conditions LB \ { READ ENTIRE LA B E L B E F O R E USING DOWPON M DIRECTIONS FOR USE It is a violation of Federal law to use this product m a manner inconsistent with its laDeimg STORAGE AND D ISPO SAL Do not reuse container Destroy by burn ing or burying in non-cropland away from water supplies or follow official local container disposal procedures. Use DOWPON M only as directed on this label. Before using this product, read GENERAL INFORMATION. USE PRE CAUTIONS. TREATMENT DETAILS AND FOOTNOTES for each intended use. -- G EN ERAL INFORMATION DOWPON M grass killer controls cat tails. annual grasses such as foxtails, barnyardgrass crabgrass. panicums. wild oats and perennial grass?s such as bermudagrass bluegrass gumuagrass. johnsongrass maidencane. paragrass. phragmites. quackgrass. raoulgrass. torpedograss vaseygrass MODE OF ACTION: DOWPON M is absorped through foliage and roots and translocates through the plant system Grass growth is rapidly inhibited but kill is often delayed if sprayed grass produces new growth, another treat ment is suggested SOIL PERSISTENCE: DOWPON M is readily decomposed m soil by micro organisms In warm, moist soils break down normally occurs m 3 to 5 weeks In cold or dry soil, and soils with little or no organic matter, slower degrada tion can be expected WHEN TO APPLY: Apply when grasses are growing well and before heading Adequate soil moisture favors good growth and effective herbicidal action Application during drought or cold weather or when grass is maturing will be less effective HOW TO APPLY: Apply by aircraft Or ground equipment as a water spray to foliage which should be wet uniformly Use enough water for adequate wetting of foliage usually 5 to 10 gallons per acre by aircraft and 10 to 100 gallons by ground equipm ent Dense grass stands may require up to 500 gallons for uniform coverage For spot treat ment. use 10 pounds of DOWPON M per 100 gallons of water Per acre rates are (or overall broadcast treatment With band. row. or spot treatment the rates per crop acre should be reduced in proportion to the areas actually sprayed Note surfactant directions SURFACTANT: Use any approved agri cultural surfactant in all applications of DOWPON M to improve wetting of foliage and grass control. For annual grasses, add 's to 2 pints per 100 gal lons of spray For perennial grasses, add 4 pints per 100 gallons of spray. NOTE: For some crops, note that less surfactant is recommended. Adding more surfactant to sprays applied to crop foliage may increase the risk of crop injury. For non-crop uses, control of perennial grasses may be improved by using more than 4 pints of surfactant per 100 gallons of sp*ay. COMBINATIONS: DOWPON M can be used m com bination sprays with phenoxy or other hrnbicides as indi cated on this label "-'ways note label directions and precautions for other products before using ,vith DOWPON M. Do not use combination sprays con taining 2.4.5-T on ditch banks, around the home or recreation areas. MIXING INSTRUCTIONS DOWPON M grass killer is soluble in water Add it slowly to the water while stirring or agitating until completely dis solved Then add desired am ount of surfactant In combination sprays with other herbicides, dissolve the DOWPON M first and use no more than 8 pounds in 10 gallons of water. NON-CROPLAND USES Railroad ballast and berm areas, drai age ditches fence rows, industrial siIf and other non-cropland areas includm forest planting sites Apply by air ground equipment Tank mix combm tions with FORMULA 40*. KURON*. ; ESTERON' herbicides may be used fi controlling both broadleaf weeds ar grasses OTHER USES NOT ON THIS LABEL Consult Agricultural Products Depar ment. The Dow Ch<?mical Company. P . Box 1706. M.dland Michigan 48640 _f registered use d m n s lo r DOWPC M m the foiiowu ps asparagu bananas birdsfoc: : .'oil. coffee, era bemes. macadam a nuts and peas. NOTICE: S e lle r w arran ts that the p ro d u c t conform to ts c h e m ic a l d e s o rp tio n an d is r e a s o n a b ly ft 1 me p urposes stated on the label w hen used acco rd an ce with d ire ctio n s under norm al con~ tio n s o* u se but n e ith e r m is w a rra n ty n o r a n y o t r warranty ol M ER C H A N TA B ILITY or F IT N E S S FO P PA R TIC U LA R P U R P O S E e *p re ss or im plied e ten d s to the u se o t th is p ro d u c t c o n tr a r y to ia r in stru c tio n s Zf under a b n o rm a l c o n d it io n s under conditions not reaso n ably fo reseeable seder and Ouye* a s s u m e s the risk of a n y s u c h u*. U S P ate n t No 3.671 652 I 106^ 9 -lcflo continued USE DIRECTIONS ON NON-CROPLAND PROBLEM Perennial grasses and cattails Annual grasses Control of grasses on forest planting sites Spot treatment D0WP0N M lb per acre TREATMENT DETAILS (note surfactant section above) 13 5-30 Good spray coverage of heathy foliage essential and retreatment may be necessary. Withspray boom -- use at least 100gallons spray peracre. With hand gun -- use up to 300 gallons spray per acre. Spray cattails when 2 to 3 feet tall or during catkin development. 4-10 Treat when growing well and prior to heading Low rates will retard growth of most grasses and can kill certain species such as foxtails. 4-15 Use 4 to 5 pounds per acre on seedling grasses. Use 10 to 15 pounds on perennial-grasses. Wait at least 2 weeks after application before planting '"fortTsT'seedlings. --- ;- Use 13.5 pounds of DOW PON M in 100 gallons of water and spray to wet grass without runoff. Repeat as needed. U SE DIRECTION S ON IRRIGATION DITCHBANKS - W E S T E R N UNITED STATES PROBLEM 00WP0N M lb/A Control of grasses such as reed canary, bermuda. Johnson, phragmites. cattails, and tule on banks of irrigation systems. 13.5 spot treatment TREATMENT DETAILS (note surfactant section above) Good spray coverage of healthy foliage is essential (a,b.c,d). If brown ing and die-back does not occur within three to six weeks, retreatment may be necessary. With spray boom use at least 100 gallons spray per acre No waiting period is necessary before this water may be used for irrigation purposes Use 13.5 lb in 100 gallons of water and apply by hand spray gun to control intermittent mfestations(not to exceed fifty percent of the total area). Spray to wet all foliage thoroughly but without runoff. This may go up to 300 gallons of spray per treated acre (a.b.c.d). a. Always begin spraving at downstream end of the section to be treated and work upstream. Do not spray across stream, minimize contact of spray on water surface, and do not spray both banks simultaneously. Do not spray more than 2 miles of the same ditchbank during any 24-hour period for ditches carrying less than 50 cubic feet of water per second. b . Cattails and phragmites (giant plume grass) are controlled best when new growth is 2 to 3 feet tall and plants are growing well. Fall spraying of cattails after catkin development is effective. c. Do not permit fishing in treated waterways within the calendar year of treatment. d . For grazing restrictions see footnotes 20 and 21. \<M O 'lc tfi continued 18 U S E D IR EC T IO N S ON CRO PLA N D (B efore M ak in g A n y A p p lication , R ea d A p p rop riate F o o tn o tes) CROP APPLES. PEARS APRICOTS BEANS (Field. kidney. lima. snap) CITRUS groves ditches. borders CORN COTTON FLAX GRAPES D0WP0N M APPLICATION lb per acre TREATMENT DETAILS FOOT NOTES directed under trees 5-10 Use low rate for trees less than 4 years old Apply as 1 2 spot, band or broadcast application directed under trees 6-7 W estern a r e a s -- use spot band or broadcast 1 2 application Spring pieplant 8 G'-ackgrass -- apply in spring on 4 to 6 mch grass 2 3 .4 Wait 4 days Plow r - deep disc Wait 4 to 5 weeks after plowing or de>. j discmg before planting Fall preplant directed under trees at least 4 years old spot or broadcast spring preplant spring preplant fall preplant spring pieplant preplant (repeat treatments) spot spray . lay-by broadcast (for foxtail control) directed under vines 15 2-4 5-10 8 Quackgrass -- apply m fall (usually September or Oc 2 3 tober) on growing grass Plow or deep disc 10 dpys after application Or in the spring before planting Use 1 pound m 20 gallons water and spray to wet without runoff Florida and Texas -- apply broad cast at 2 to 10 day intervals California and Ari zona -- spot spray grass at 4 to 8 week intervals 2. 6 Use 5 pounds per 100 gallons water and spray to wet 2.3 7 grass without runoff If needed make a second application m 1 to 2 weeks Quackgrass -- same as for BEANS 234 5-7 Johnsongrass -- spray when 8 to 12 inches tall Wait 2 . 3 3 days Plow or deep d sc Wait at least 5 days after 4. 5 plowing or deep discing before planting 15 Quackgrass-- same as for BEANS 23 5-7 Johnsongrass -- spray when 8 to 12 inches lull Wait 2 3 5 3 days Plow and plant 5-7 Bermudagrass and johnsongrass on stubbie or fal 2. 3 low land 5. 12 Perennial grasses --use i pound m 10 gallons water Direct spray to giass and keep off cotton plants Spray up to 3 times per season 5 Usedirected spray under the cotton after last tillage in western areas 1 Apply m 5 to 10 gallons water per acre on 1 to 6 mch 3. 8 flax and 1 to 2 mch foxtails Use with DOW MCP Amme Weed Killer to add broadleaf weed control 10 Use m bearing vineyards m Arizona and California 1 . 2 Apply on 30 mch band centered on vine row Keep Spray Out of irrigation furrows 1069 c ontlnued CROP DOWPON M APPLICATION lb per acre TREATMENT DETAILS FOOT NOTES ASTURE established erenmal -asses such 5 Pangolaermudaahia- Dal lis .nd Fescue rasses) when grasses are growing well 4-6 Smutgrass control m Gulf Coast States including 3 4 18 Georgia Apply broadcast at 4-6 lb per acre 19 21 22 23 25 Spot treat with 6 b 100 gal water to thoroughly wet 4 18 19 smutgrass foliage 20 21 23 25 REACHES directed under trees " 6-7 2-3'A Western areas application spot band or broadcast -Other areas -- use 1 pound m 20 gallons water Apply up to 70 gallons spray per acre 12 12 3LUMS PRUNES) directed under trees 6-7 W estern a r e a s -use spot band or broadcast 1 2 application POTATOES Spring preplant fall preplant preemergence 8 Quack grass -- same ? " 'nr BEANS except potatoes 2 3 can be p la ce d right a'ter plowing 11 15 Quackgrass --same as for BEANS 23 11 3 Grass seedlings --soray grass before emergence of 3 11 potatoes Can be used m combination sprav with PREMERGE 3 Omitro Amine Herbicide 10 Quackgrass -- spray to wet grass if it comes up after 3 ' t planting and before emergence of potatoes SORGHUM Spring preplant 5-7 Johnsongrass -- spray when 8 to 12 inches tall Wad 2 3 3days Plow Wad at least 2'/: weeks before planting 4 5 SOYBEANS spring preplant 5-7 Johnsongrass -- Spray when 8 to 12 inches tall Wad 2 3 3 days Plow or deep disc Wad at leas; 5 days after 4 5 plowing or deep discing before planting SUGAR BEET spring preplant fall preplant broadcast (post emergence) directed 8 Quackgrass -- same as for BEANS except beets can 2 3 24 be planted right after plowing 15 Quackgrass -- same as for BEANS 2 3 12 24 2-4 Seedling grasses -- apply overall from emergence 3 9 to 6-ieaf stage of sugarbeets 10 24 3-5 Apply under beet foliage using leaf lifters from 6-ieaf 9 10 24 stage of sugarbeets until they are 14 inches tall SUGARCANE Florida. Puerto Rico directed spot spray 4 Spray grass m spring before ciose-m using 20 to 40 13 gallons water per acre Repeat 2 or 3 times as needed Do not spray cane foliage Use 10 pounds DOWPON M m 100 gallons water and 13 spray grass infested areas before ciose-m Repeat as needed Do not spray cane foliage - continued 20 1 0 7 Q - p _ _ ( D ^ * > CROP DOWPON M APPLICATION lb per acre TREATMENT DETAILS FOOT NOTES SUGARCANE Hawaii directed SUGARCANE Louisiana spot spray ground 3-4 Spray grass after cane planting or ratoonmg Repeat 14 2 or 3 times as needed prior to close-m Do not spray cane foliage Same as for Florida cane 14 S'/2 Stubble cane -- Apply 2% pounds on 30 inch bunds 15. 16. on actively growing |Ohnsongrass or bermudag-ass 17 m the spring Repeat m 2 to 3 weeks if needed aerial 2 / 4 S t u b b l e c a n e -- Appl y on a c t i v e l y g ro . v mg 16 17 johnsongrass or bermudagrass m the spring using 3 to 5 gallons of water per acre Repeat m 2 to 3 weeks if needed i ground 27s Plant cane -- Apply on actively growing seedling 15.16. ' grasses such as johnsongrass and raouigrass Re * ( peat m 2 to 3 weeks if needed 1 1 aerial 1 Plant c a n e -- Apply m spring m 3 to 5 gallons of 16. 17 water per acre on actively growing grass seedlings Repeat m 2 to 3 weeks if needed FALLOW OR STUBBLE LAND preplant or repeat treatments 5-7 Use m gram stubble or on fallow land to control 2. 3. 5 quackgrass bermudagrass and johnsongrass dur 11 12 ing the growing season prior to planting beans corn cotton potatoes, sorghum, soybeans and sugarbeets THESE FOOTNOTES ARE AN IMPORTANT PART OF THE USE DIRECTIONS 1. Apply when grasses have begun growing well in spring, but before heading Spray to wet the grass without runoff Apply when soil moisture is high such as afier a ram or irrigalion Use one 0 r two applications per season For band or spot treatment ;he amount of spray and DOWPON M . - be 'educed m proportion to the area ac' .iaiiy treated Do not spray bare soil under fruit trees or vines Keep spray off crop foliage and fruit Do not apply within 30 days of harvest 2. Do not graze livestock on treated areas during application season 3. Apply by air or ground equipment 4. If soil remains unusually dry after preplan; treatment, a longer waiting period may be necessary to avoid residue injury to the crop A rain of half an inch or more will help to move the herbicide mto the soil so that rmcrob'al degradation (breakdown! will take place Wait 5 days alter the ram before planting suscepti ble crops 5. This treatment will not control unemerged seedling grasses 6. Keep spray off crop foliage and Iruit and do not spray bare soil under the trees Apply after ram or irrigation so that adequate soil moisture is present Use up to 3 applications per season m orange, grapefruit tangerine and lime groves Use low rate on very light soil Do not use in groves under drought stress, diseased m decline or suffering from cold damage In Arizona and California 10. Use no -- -e man 8 pounds of DOWPC' spray only up to half the area over the root- M per a c e pcstemergence per season See' zone of the trees and tops ~ a , be fed to livestock 7. DOWPON M may be used m combination 11. Do net use on anq planted to or to : sprays with ESTERO N products KURCN planted ;o 'ed sxinned varieties or Whr or FORMULA 40 to control weeds and brush Rose Do no; spray potato plants m addition to grass 12. To control estagi'Shed bermudagrass : 8. Use no more than ' ? pint ol surfactant per johnsongrass on gram stubbie or fallow lan: 100 gallons of spray Do not expect rapid use 5 to 7 pounds per acre m 2 or 3 applies grass kill CAUTION Poor grass control and tions 2 to 3 .-.eeks apart, or as needed Us njury to flax may occur if applied during til'age prior to planting the following sprir periods of d'Oulh Do not apply under drouth on such crops as beans com cotton pc conditions unless c o p m;ury can be toler tatoes sorghum soybeans and sugarbeets ated Fiax ,'arie t'e s vary m to leran ce to DOWPON M anq MCPA Consult local Exten sion Service Or University Specialists for fur ther information 9. Do not app'y .-.hen tem perature's above 35 F Using more than t pmt of Surfactant per 100 gallons Of Spray may improve grass control bul also may increase the risk Of crop inju ry As much as 8 pounds Of DOWPON M per acre may be used for better control of wild oats and quackgrass but also may m|ure the beets The 5 to 8 lb rate should be applied only from ground 13. Do not apply moie than 12 pounds pe acre per season Do not apply within : months of harvest Do not spray cane foliage 14. Do not apply more than 20 pounds pe acre during 24-36 month crop Cycle Dc not spray cane fo' age 15. One pound per acre on 30 inch bands is equivalent to 2 4 pounds per acre on broad cast treatment basis 16. Apply before May 20 to avoid m|ury tc cane DOWPON M can be used with KURON or 2.4-0 m accordance with label and loca- equipment and as a sp-ay directed away recommendations from the sugar beet p ants For aerial ap 17. Varieties C .P 48-103 and C .P 47-193 are plication use at least 5 gallons of spray less tolerant to DOWPON M than other va per acre DOWPON M at 2 to 3 pounds per rieties Consult Exiension Specialist co n acre may be used m tank m u combination cerning response of new varieties with Pyram m W h erb icid e at its reco m mended rates and times to control broadieaf weeds as well as grasses I O V I q - i o 'H ,. O* K . Best results obtained it mowed 2-4 weeks after treatment and fertilised to hasten pas ture recovery 19. Pastures recover most rapidly if mowed adequately fertilised ample m oisture is made available and other good management prac tices are follow ed D esirab le p e'enn .ai grasses and foros (such as white clover/ may be tem porarily reduced m stand or vigo' but spring treated pastures usually recover w lh in 2 to 4 m onths unger favorable conditions Fall treated pastures usually show excellent re covery the following spring under good m an agem ent and favorable conditions Any annual g rasses present may be seriously mlured or killed 20. w h en less than 10% of the pasture area is treated grazing need not be discontinued 21. G razing R e strictio n s Pastures unmowed -- do not graze meat ani m als on treated pastures until 8 weeks alter treatment and withhold Irom such grazing for 1 week before slaughter Fourteen weeks alter treatment no withholding period is n e c essary Do not graze lactating dairy anim als on trea ted p a s tu re s u n til 14 w e e k s afte r treatment P a s tu re s mowed -- mow 2 to 4 weeks after treatment if desired Do not graze lactatmg or meat anim als on treated pastures until 4 ..-:eks after mowing Do not harvest hay from f e a t e d p a stu re s d u rin g tnt.- s e a so n of application 22. Use only the lower rate of OOWPON M on bahiagrass pastures since it is more sensitive than other desirable pasture grasses and may su ffer co n sid erab le reduction under u n favorable -.n'-ditions -23. Oo not sow grass seed-until 2 to 4 weeks afte r treat.-.-:..-nt S p e c ie s su ch as a n n u a l ryeg rass can u-_- Ian seeded to provide winter puvture Defer grjzm g for 10 weeks or longer a 1-- ' treatment allowing adequate time for Suin-.iot growth to sustain grazing 24. CAUTION Use o< thiocarbamates such as RO-NEET TILLAM EPTAM and PRE-BETA herbicides may increase risk of injury to sugar beets from the postemergence application of n b'.vPON M Also environmental conditions v. :,.oh cause poor growth or educed sugar of s u g v beets such as unusuaii, cold or weweather drouth stress insect or disease a' taC' poor nutrition and high concentra!1_ y of sairs m the soil increase risk of Therefore DO NOT Appp/ OOvVPON W postemergence to sug-i --.-ts .f tni-ji.arbamate herbicide was app^ed prepianrmg or if crop 'S growing under ad .-i'Se environmental Con-J. ons unle^ j crop injury can be toie'-i' ed 25. Apply only one- ; --' year 14271-430-1 J579 MISCELLANEOUS USES A S P A R A G U S : TO control q u ackg rass, apply 10 pounds of D O W PO N M per acre before cuffing and 3 to 4 weeks later as needed. W ith a single treatm ent, use 20 pounds of D OW PON M either before or after the cuffing season. For b e rm u d ag rass control, apply 20 pounds of DOv. 3O N M per acre either during or after the cuffing season, and a second spray of 10 pounds as needed. NOTE: During the cutting sea son, spray immediately after cuffing and use no more than 1 pint of surfactant per 100 gollons of spray. Postharvesf sprays must be directed under the fern growth to avoid crop injury. Use enough water to provide uniform wetting of the grass. Spot spray patches of grass with 1 pound of D O W PO N M in 10 gallons of water. > B A N A N A PLA N TIN G S: To control perennial grosses such as guinea (Pan icum m axim u m ), amargo (A xonopus sp ), and gamalofe (P asp alu m sp.), use 10 to 15 pounds of DOW PON M per acre in enough water to obtain good coverage. Ofren rates of 6 to 8 pounds per acre applied in the same manner give very satisfactory results. A first treatment should be made when grass is growing well, but before heading. Repeat treatments, usually spot applications, should be made where needed In about a month to six weeks and later on as required. Use no more than a total of 30 pounds of D OW PO N M per acre per year. Keep spray off banana fruits, foliage or young plants. Use sufficient spray to wet grass foliage thoroughly, but avoid run-off. Birdsfoot Trefoil, for Seed Production O n ly : For use in Vermont and New York states only. To control or suppress quackgrass, and other perennial grasses, annual grasses and clovers in birdsfoot trefoil seed fields apply 3 to 5 pounds D O W PO N M in 20 to 30 gallons of water per acre in fall or early spring when clovers and grasses are 4 to 6 inches tall. Some temporary crop injury may occur but seed yield and qualify are usually increased. N O TE: Do not graze treated fields to livestock or feed forage, h a y , or chaff. C O FFEE: To control crabgrass, bermudagrass, kikuyugrass, para (California) grass and other grasses in established coffee plantations in Hawaii, dissolve one pound DOW PO N M in 10 gallons water. Apply as a directed spray to just wet the grass without run-off but not to exceed 100 gallons per acre. Keep the spray off the coffee foliage. Make initial application to grasses which are growing well and prior to seed head forma tion. Respray 4 to 6 weeks later or when regrowth warrants, but do not apply more than two sprays in any one crop year and do not apply within 8 months of harvest. CRA N BERR IES: Ditch and shore treatm ent: Use 20 pounds of DOW PON M in 200 to 300 gallons of water per acre to control cattails, cutgrass, povertygrass, bur-reed and common rushes and sedges in irrigation and drainage ditches and along shore areas of cranberry bogs. Make the first application usually in early June, when weeds are growing well but before seed neads form. Make second application as needed but not later than July 31. Apply the spray to thoroughly we* the weedy vegetation. Keep sp ray off cranberry fo liage V ine Treatm ent: Use 10 pounds of D OW PO N M in about 300 gallons of water per acre on cranberry bogs to control summergrass, cutgrass, povertygrass, wamsy, warty paniegrass, bunchgrass. wide leaf grasses, round rush and sedge weeds. Use no more than pint of surfactant per 100 gallons of spray. Treatment should be made only after harvest in October and early November. C A U T IO N : This treatment may reduce the next season's crop. For example, on the Howes variety the crop may be reduced only slightly whereas on Early 8lacks it may be reduced up to 7 5 % and on certain varieties as much as 9 0 % . Follow recommendations of agricultural experiment station or extension weed specialists. 10720-^ continued 22 S w a b Treatm ent: Apply D O W PO N M (to the grass and not to the cranberry foliage) at the rate of 2 pounds in 5 gallons of water (up to 5 gallons mixture per acre) as o swab treatment as soon as the grassy weeds appear above the vines. Two appli cations at two-week intervals are suggested. Swob applications will suppress growth of grassy weeds, and may result m crop reduction in the year following application if the concentrated solution is applied carelessly or drips onto the cranberry vines. Do not ap p ly w ith in 6 0 a a y s of harvest. Do not use more than two ap p licatio n s per seaso n . Follow recommendations of ag ricu ltural experim ent station or extension weed specialists. M A CA D AM IA NUTS: To control crobgrass, bermudagross, kikuyograss, para (California) grass, dallisgrass in macadamia orchards in Hawaii, use D O W PO N M in concentrations of 1 2 to 1 pound per 10 gallons of wnter. Spray to just wet the grass without run-off, but not to exceed 100 gallons per ocre. Make first application before harvest and respray at intervals as regrowtn warrants. Do not exceed 2 4 .pounds of DOW PON M per acre per year. C A U T IO N : Daring harvest periods, spray only immediately after gleaning nuts from the ground. Do not spray directly on fa lle n nuts. PEA S: To control seedling grasses, giant, green and yello foxtail (Setaria) use one pound of DOW PON M per acre . enough water for good spray coverage. This treatment me not give satisfactory control of species other than these sens five foxtails. Use no more than '.'2 pint surfactant per 10 gallons of spray. Apply at least 25 doys prior to harvest whe the grass seedlings are young and the peas are 2 to 6 inche tall. Fresh pea vines or pea silage may be fed to livestock desired, but do not feed pea vine hay. D OW PON M can als be used in tank-mix combination sprays with PREM ERGE' Dinitro Amine Herbicide. (Read PREm ERGE 3 la b e l fc directions and precautions). 1073 Q-ICtfk 23 y >E N T tSt U t i l h h g th is ra o o u c r U IK-tO * M A T lO N * w * e d kUe*, confroh b*oodteood t ed *oedy ^ n n ' i A fi, I f f f e j owv and n ^ q i io K w#iM M ^ro*r^j*dHjhjj. um*r wor# oroo^Tnmoiiowrg > i th# * d < c o n ffo il d b y ( g H w Wydl > o*o<a Woody Growth ti<q ( mop^ NET CONTENTS p e g HO. 677-305-AA PA R ^g - n GALLONS tBL W*^r ?xrr TT*5Xweed P c n lo o fc doc Sod ihm opry ook $<VO OQ> Svsia/ traoim tthiir^o W Jd h lo rkb yfn r Tuo TP f e r !>* (9n lo o oV >* * <rro g w b t'ttm o ry o n d C o nw ^ t lo<ol o g n r v lh r r o l w ' **e o o d tp e o o h tr o d r t (o m M d o t io m K ros* o r e o . pf krt4 fo r Corr o O 0Hj o v k f b e * o d o d g e r o f d f * n> m k>iovM o ry b * m o d e by o p i r i o te of 7 ,4 ' i TP la rm u lo H O M opoL<o*>on of b eb< *dei.o ro m vt fo c a l e g v io tr x y <n. m *.rtg O p p K O to m . We oO*ONpoofwJ #f S K V f R 4 TP obovt o v a i *o I ^vorf o 100 C. I ^ k e b o b o frooi e , if moy b# 4 3 ` f. ed mi* thoroughly OHS f C t v fl VT f i t t h e $pry *ok wrth hoff er. M o -dd *he r#omt*.dnd ron fin v* MUtg he \poy Vonl tp 0r*O*or rvivMn^ K m fJli-.g r operot'Om S IIV I.4 4TP w* oho f or herowve r e u h t ore bte*ed wh#o $ilV |X ore o*d ocrvefy grow^g urKop*bfe oo*vof 'eedv wt ofly >e**nrvo< w *dt e *d other <odr* % fo ^ h e * o * * ' ' W h o otod in a # d o g e of growth fh* <?op oodf p*nV od w #*dl or* hord e o y b * "ocettory PPEf M lP O EN C f -A p p fy SllVEX m 13 goiom of jte* per o<e 1/3 e f W o f oreo) HorHy before yrmewye in thQved Or olf-borred lofiowmg thn opero* POSTtem e ret. Moke only one e^ orer^ e t*#orm*t OO NOT M*vt f product *o be wtod for * ^ ^ " / er ge*c# of the <, Where *n oh eher teed mg who e o *wt Ortd b p r f V oro l*Oftdng * S H V lX 4TP per ocre ** rhe :' ^i --' ...... Diamond Shamrock Chemical Company Weed and Brusii Killer SELVEX 4 P C e n io m i 4 0 Powdt of 3.4.3* i f A t d Equivalent Per G allon A C T IV E IN G R EO lEN T l*oo<tyl ft * r of Stivo* ^ ( 3 4 J.T ch ln ro p h en o y ) propio A f lJ ] * INEPT INGREDIENTS A3 3 % J4 15* TOTAl IOo O** ' EqotvoUnf o 3 (3.4.3>TrKhlorophoo*y) prOpoK Ard 4A ' S C A U TIO N * SkEeEep$oDuEtPoAfNErLeaFc0hR oAfDDcIhTiIlOdNrAeLnc. autions. AGRICULTURAL CHEMICALS DJViSICN-CLEVELAlMD,OHIO 44115 AC-247 DIAMOND SHAMROCK CORPORATION 231*-A147+371 1075 p - l o ^ i] fftAO FN Tief IA 8 I fttK M C U $iN C THiS H O O U C I G C M X A l IN .'-O O M A riO N 4 f o * o o A ' 0 w . - r d fc**# ** '<*. ^Kjo* f o * o 'd v * g * o * v Hv >< ,f-' # Ow b o o d i# n * o d ' .'i* ,n OfJ u O''*# O`4 .'` * o** ... TT ,. . - g 31 "T<* c 1o** c,> *# w#dt ro**o i*rt bj tv* 4 rp i r n y i f Wi t rfi |oo</!q>d Wji W frody G *ow h ?!. #.lf <-**sfv r r ; -- .r .foocaac ied-CJOB" Poit OQL *d oc^ ~d t KAeryO o4 NET CONT epa } NO: t DO ''O" 1 4fP r tr> qK lo * o * c o A d -'-oM n ~ d i f C ',< q , i,i" o3 o r y o d ~O <?<<* vv# c ** C n ' W k K o 1 og'Ki**w'ol p f " " * ' * *0*0* O f f t l i o i < 4 p*<ol>V*4 n r* d *o*# g * * o #o y o g r * ; i # \ lo a 7 o o <j o o a *<o n o p " ' o ' ' C ^ " o y b o* .# *3* c b'v* o d ^ <-d *<* >>'* o,.,r1 h # r-.> o d , , , t *o i <*>. <. r>* Appl.t t '-. *-\ ,**o. '-'i o'y h * 'iH * b> opiV O " '* * .3** * * % ' < *# w # * / 4 J T P * c * y ! o t i . 1 * ; *,* o^ g o f, 'ii,'f l e> o ortf-*<o* * * ) l K r ' b o f l ' o ** ##.4 * 3 f r a^s.>4- ' 3k y Ajj.^iory OQ#*r.-\ CV f f '" " f tlif 'J O p p i* (O '-O '" T**C * `' O SM A Il A #f * S O '1* *pou**wi o* SUV 1 4T^ ' 1 ; c-J-'O-l o -v obov/l PQvol o I QvOt o *00 W>*#% i*od ot Apo*o*gft bo*ow lff r*g * mof bo o d'^ *o 4 j f od *** H^rv^ghfy 04 K T1 O N S FO f USf PQCPArf*' o f m* S^Pa 4,n *# j*oy tfl"k iih ^g|l ** 3 o"o*.>a n* id*J ** *<O""** *d>l O *H - S * : t 4' P OA, O'-.* -1<Jm i M~~ *. i-, O-* i' t*o*. ci <##p O'J''>o*>' ...... n :,.j v)'* 'a 1' u-d d.--- ; \0*0+ Ok '` 3" % S.iVf * 4 p wt oUo * m Of A^tCAiCS S*l pi* *b*o*A^o 'i*n $JIV(X 4T P . Uk d O * # d * ***o o yv- ; 'd o* > gr>r-*g Ao,-- o* o l q * r o** *a "vn1 * f f d * a t irt '' b# H**"J',i)y, hr ir p<rf m.o' f M l 0d O**# COd* *o **## ( , i d > t< u * ' c < h ^ g 4*** f o ' /ted o t o #*>'** wn; i (rrpv f*<* itgg# o* g ** ^1 A f o o COA'el**#d L>*# oo*if po"' o^d *<) o*o Kod o k !' 00 ' f P f 9 1 n : r ' -^10^11 Wfl/ OA n . ( ( t f l y r' /'. AO f A i o o: P f f m , n C - Appi r SH Vx ' k . r* o> 1 q jo -- 3 ol 3^* p#r OC . , .^ rC - o r :3ro.. o*, ! J O 0*0 0#0 3KoV bO# ' - : \ O* d o g.or n I^OvOd J O* f>0#d 3 '* 3 : .'f '*f O w ^ J l*l.v 0p#*O**Or> P O V " i a c *C ~ A c r f 0 i o a* o * M o k o A*T 0* '.jt..' ,' OOD 'f<1 p* **oo *** DO OT OC'>\ m *A.n 3 ff*OAh% O Ko V* 4 p'OdK* o (3 uiod *o 1 d o **d. tSC5 T'OOf 4 O 8 W#*k OO 0 o g K # O f*0 40 W b o r * : *-y>dtd b o * ' o * ' 7 o^ d 9 w h t o#* w * d - g N plor O bov# mpfgtd OOO^O *otr O'^d 00*0% 0*0 i ljd ,rtg <' t l> w 1`0 o 3 p*oH * S H V (X 4 T 9 p r o cro >o H D C CAUTIO AGRICULTURA! 2i o m P' V. Br^ * 'rr * f '.st"-<J,` NET CONTENTS i.^ ' O C R ~.<C r .'.^ C ' A 1. if. " .C T ir t O c a rv> e . ? . r : . . ; : c . : r t ACT ."O R : - - v : r.:!C F L' I* U .\ l i t ' G iS I E r t ?;. U N C fcrf n o . 4 ? ? - Z ^ 7 lh^L-1 ^ T ~ GALLONS J . N O . 6 77 -W 7 -A A EPA REG a m on r-J ^ h aa *' m ro c k n com p an y Brush Killer A , , , ,p.np^r n n /t >7 5 i , ' : :. . -! f ; ; S L - k a fJ u C a C ontain 2.0 P o u n d i Sach of 2,4-D ad 2.4.5-T Acid E q u iv a le n t Per G a llo n iC TIVE INGREDIENTS: ~ D im e th yla m in e S a it o f 2 ,^- D ic h lo ro p h e n o xya c e tic A c id * 2U.8% * T r ie t h y la m in e S a it o f 2 , l4-3p - T ric h lo ro p h e n o x y a c e tic A c id * * 2 8 . 8% NERT INGREDIENTS : * b6 . k j TOTAL 1 0 0 . 0% I * E q u iy a le n t to 2 ,U - D ic h lo ro p h e n o xyac etic A c id 2 0 .6% ' * * E q n iv a le n t to 2 , 1+, 5- T ric h lo ro p h e n o x y a c e tic A c id 2 0 . 6% P f i i m n w - KEEP OUT OF PEACH CF CHILDREN. w n U I I V I K ^ r r fv | ^ r n ' ' ' T i r ~ * T P "" J ^ ' : * * ^ M 1 T I O A1 v O C l O \ \J i_ i j . _ L i \ i i i* i . i 'y i - ."i t- --' P i J ; 1 Vv 11 ^ . A G R IC U L T U R A L a G-244 C .H 3 .V . C A L S C i V : 3 i O r j - C L E V L ---------------OIAM OND SHAM ROCK CORPORATION A IM D .C W O 44H 077 o -"0 2757 a u <s i 71 h tag. A.oW c o m may b 2 4 -0 Consult or extension up o t 2.4-0 on im e n d e o fate, orgrtum .piants roo ts are well rop is over 10 Ting to dougn ce application jence apptica:nrough layby. For Ory indltlona as In itte m Stales* 1 to 2 pints t V, to 2 pints 1 to 1V3 pints 1 to 1' \ pints wada. Oregon. ived wrvis in e 2 to 3 pints it -i provide n weeds n t-v iy seeded or alter heads is m "boot" ally injured or D N O T graze 7 d.ivs alter vtlLAR TURFe m sufficient 0 NO T apply become well : to bentgrasi. itip e d e gra ss. >ce rows, ditch ir areas, use 2 s o< water per ft. lh the skin. (IN. id . flush eyes notes and get io th in g . Wash and water* i. Insecticides or water used 0 susceptible wers. grapes. Hints ol spray growing and likely to drift, pressure and a. after use. nt for applying suit. :roy by peHo1 a aale place. DAMAGES onforms to Its oty ttt tor the READ ENTIRE LABEL BEFORE U SIN G THIS PRODUCT GENERAL INFORMATION AVINE 2 D 2T is d - u g n e d for u s e m c o n t r o l o f b ru sh o n d w o o d y o V n t - . I*s p r . n c - p o l u s o is o n r a n g e * a n d c l e o r o n c e . p o w e r hrc-s. r i g h t s O' w a y . S t u m p l a n d o n d c e r t a in w a s t e o * e n s n ^ c i ? it is e n s u e d to till or r e p r e s s g r o w t h o f w o o d y p l a n t s Tt-.s p r o d i - . t a n o t i n t e n d e d f o r w e e d c o n t r o l in f o o d crops. DO NOT use oround the h om e, recreotion oreos or similar sites AMINE 2 D / 2 T is a n o m m e l c rm u lo * io n o f 2 . 4 - D u n d 2 .4 ,5 - T w h i c h f o r m s o s o l u t i o n in w a t e r It wi ll n o t min w i t h d i e s e l oil. f u e l o*i or L e ' o s e n e . Tne fo llo w in g is a p o r f-a l inf o f s o m e w o o d y p l a n t s c o n t r o l l e d fcy a m i n e 2 D / 2 T A ' rfer Ash Aspen B-i< h Boseider Brambles Buckbiush Elderberry Elm G ren norier Gum 'toneysuckle 'ocust M ople Oak O sageoronge Solm on b erry Poison ivy Palmetto Sumac Wild cherry Wild g ro p e Willow W h e n s t o r e d o i t e m p e r o t u i e s b e * a w f r e e z i n g , it m o y b e e c e s s c r y tc w o r m c o n t e n t s t o 4 5 ' F. o n d m ix t h o r o u g h l y : efore uvrg DIRECTIONS FOR USE RE PA RA TI ON CF Tt-E SPRAT: f r l t h e s p r a y t a n k w ith h a l f the required om ount o l water. A dd the r e c o m m e n d e d amount o l AAstt-E 2 D 2T w . t h o g i t o t i o n a n d c o n t i n u e f i l l i n g t h e s p r o y tank wiih b a la n e r ol w afer T O l ' A O E TREATMENT Fc 1 a g e or l e a f s t e m s p ro y s a r e usrtcf d ' - r u ' t ' "- e g-c. a . fig s e a s o n o n d e n s e b r u s h o n d w h e r e v i n e grow* :is g i c e i p r.er o ' d o t h e r c o m m o n w o o d y - n e s is a p i o r h m A p p l y A.v.'NE 2 D 2T o i l e r f o l i o g e is well d e - e i c a e d u u n g o d ren ch in g spray con tain in g 3 to 4 c u c r t s *n l o C g r . i ' o n s o f w a t e r C o v e r a g e s ho u -la b e c o m p l e t e , w f f in q ail ports of the olonts, m o u d in q le o v e s a n d stem s, to the point ot in c*f A pplications a r e n o i e e ffe c tiv e w h e n op pl.ed to actively grow in g plants. DO N C T treat during p eriods of s e v e r e drought or in e a r ly foil w h e n l e a v e s h a v e lost their h e c l t h y g r e e n color. AMINE 2 D / 2 T kills m o r e slow ly than eiter sproys Therefore, ony retreafm 'nt that m ay o p o e a r to b e necessary should b e d e lo y e d until iho fo llo w in g sea so n . Certain w oody bloat species resistant to fo lia g e treatm ent with this p r o d u c t c o n b e c n n t r o i l e a b y u s i n g LO -V O L 4 T o r LO -V O L 2 D /2 T o s a b a so l or stump spray. * on JSd p*et* d lor o#*on on ided t fry i* jrwi iol tnd KVC o br im. 3 4T 00 be My Ml /el ol ce r>g i itO * DI *y * r* 4 if >r K >/ NET COilTERTS epa / : > "I 'li&LlONli /T 'lS V.j *y &. j l. - * U ?... vj u C k : n ,**% *j u .- w ' C - J . ' w . ' a j -' ^ - i *i i '/ AT Brush Killer UT JiB t/ Contain 4.0 Pound of 7.4 $-1 Acid EqOtvalont Poi Gallon ACTIVE INGREDIENT: I w f ^ l E it I 7. 4, 5-TricMorophonoiyocoric Acid* INERT INGREDIENTS TOT A l 6 4 .0 % 36 0% 100 0% *Equivafnt to 7. 4. 5.TricMofoph*noycicofic Acid 44 3% PAimnn- cimrcEN.kefp out of reach of TIONS.V n U l i V H . j . E [ r ; o - r ; ; i : L r C o . f ; v : , T ; , . ;- L C A | j A G T T IC 'J L T I.'-A t. . J\ . _ ' .. ' V. . .' .l O---f MI `. --- - A r:C ?,O H IO 4 4 1 1 5 *G 730 D I A M O N D SI-iA.VIf.'O-K C O H P O O A T 'O N V>*V A I 4 J I 5 /1 1079 0-1103- (AO l NTIt * lAfttl S f ' O M CSINO THIS PRODUCT GENERAl INFORMATION LO vOl i f o s e e r .* e h **b < d # fo e the-.- (o n i< o l o f b ru sh o '-cl w o o d y p la n 't lt\ p m v ip o f u s# ' i on jg -u rftQ '-d p o w e r h n e . ruh*. o f wQ- ^lum o ?ond 0 " '1 if d g irt i* a ^ O 'e 'i, <1 >s to k ill Of f t p ' f t l g r ^ w 'h c f w o o d y p lo it> fh i> p f C i l l K * 1 n o t tt< o m m e n d e d f<V w * ~ d ', o , ` i'O l in g ' 0 <*K'Q f io p * . O O N O * u s e o n d - fc h b o r - k s i ni - . Of ponds DO N O ' us# oround th e Hon. re c e o t o n o rro * or tt# \ 0 v O l t n on fT y t* . *io b l lc*moln*-on wh*<h fo trn s on f h y l - io n i*. w a f e r n n vj w ill re o d * ly m u t ih w a t e r fr e e 0*1 * ,el O I Or < fro ie "< k I h f fnl*oii g f l ijnM o r e irt<lw d(l o m o rg those svic e p **b l* to lO V O l 4T A *'. * r Axh A .per? ;.v Bor` d # r Rrqj*- t>*es 8 W't * v M S f lm Vt f e e r M^ er H '.n * ^\ur.l, n 1OtuSt V o p |* -**lk C i o g e jiQ.->ge Poiso n iv^ Pnfm efo $o''no" b e'y S a n a i. W ild chnr'y Wi3 d r o p * W .Kcw N O T lo c o * tordlor ,% o< d -.O i*' regulo*o*s * o ry a n d -~Or nlt*<f use of tHn N(>*<.<i^ '' onsult local agr-t ubuml i f sfo t'O n or 9 i l r JO n >*<<? w * 9 J sp n cto h sts Of*d s 'u ' f r e g u: n o r y ogr?n< >et I'. re c o m rn e rsU o l'O n y *n pour oeO A^r o l o p p - iC '.tio n m op b e O* u se 1 > c o n tro l o f b ru s h a n d K .'J f r ` 0 '.% w h e r e th e re w o u ld b e no d u n g e * " I d r ift to su ire n '-b le c*ops A p p lica tio n s should o n ly be m o d e by a o c '- '' 0 *o\ e x p e r ie n c e d . t h * u se o f ? 4 .5 I form ufot*o*s R e g riit-cjn\ g o v e r n in g a * .o l o p p l" otto o i h e 'b t o d e s o r e n e lf* < t .n m o iiy itu * e s C o n s u 't lo<ol eglotnry og a< *es C C n*enin g > q u 're m e n ts b-lo>e m rik ,n g o p p h iO h o r s T F fA *tN C SM A U A R EA S O n e tr.b le sp o o n lv l ol lO * 0 1 4* n 1 ? gnM om o l 0 * * 1 <\ o b o u * e q u o i to I q u a r t >n )(X ) POliOnS W i r st<ved o f te m p * *<iures br'or f r e e i n g 1 m o y b e n<?r*ss*r v o w a rm cr,*nr.r\ to 45 F o " d m i* th o ro u g h * * b e f.^ e n*-'*g DIRECTIONS FOR USE P P g P A iA T 'C N O f THfc f P J A V f.l* p irjy ta n k w ith hrH ne ' t o v ' l a m o u n t o l w u * * r or voter l e e d * c s e l m l. fu e* or e* e->e. th e n o d d th e YVf o m m e n d e d a m o u n t o l 1 C `- O l 4 ' o ' d co*ti' u e f i l in g th e ip r c jy to : h w ith b a la n c e of w* *p* C ' p e tro le u m ol K e e p OCptfitOf is i* " ' nq k f i fillin g ` p ro v f,j ' i J n d d u f ng p r a y o p e *u *-o n s 1. s * io - g i't o*l m u *u'e* j o no le t o ' e i g e t in to th e l O V O l 4 f its e lf or tnto m e , l,, Jed p ro d u c t * C r ',, f TO *:A fM fN T 'fo l e g e O' le o f l* fm sp ra ys o re used d - ' " `J ,fc-e go>vmg se n se ' o n d e n s e b rusH or w h e r e v in e .yrow'h o ' . j oHer w o od y * in t o re a p ro b le m A p p ly i Q V O l 4 ^ ot*e f o r a g e s w e ll d e v e lo p e d . usng a d r e n c h in g s p r a y c c n fo .n .n ^ J to 4 q u o ' s -n ICY' g o l 'j n s o f o * r C c v e r o g e s h c j'd t e i c m p l f f * w e ttm g a ll pots o f the plan*, in c lu d in g 'e a s e - o^ f s*em i r0 p C **t of ru n o** H.gt>er v o lu m e s a r e ?*et *s.'iy - ' 'f * the b ru s h *s *** d**nse a*d o v f 6 n ` e* k -,|h A p p l.r a lie n s o ' * m o re e f f e c t ' * w *fn o p p l )C': * "v gr-./ r g p lo ^ fs f- Q 4 0 f t r e a t d u rin g p .n o < l. o f se * e - e d ro u g h t or m e o * l fu*! w h e n le a v e s h o v e lo* the* fce t, , , `,`y g * * * co fu r. H a rd to k ilt spe<es m a y seed re ' te a * i'll * (r>lowmg s e e son A$Al 0A *A ' ifA F A ^ fN T This tre o tn ie n t it not o d e p fe d fo r tp rn v n g r*+rS+ s t a n d i o* bush a r .d w o o d y v in e s It c o n b e used a n y t-me c f the y e a r to o b ta in b e t'e r mil or some s.se ce s 1 ' lens# brush o n e oo dy *m e\ do n .jl pi e ve n t C - o p r 1 *j :.' i p { ' l O v O t 4 f o t 'h e /o *e of 4 q u a rt s *' .' 5 t j 1 p.n 3 g otlg ns* o f fu e l o J *!..*se.l oil or -c * * fn .-r |t,e b a s a l t- r ''* ' O* >*ems or n e e tru n k s dess } ' c; AGHICUL 1080 aG 750 9 - uo^ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY OFFICE OF PESTICIDEPROGRAMS WASHINGTON, DC 20460 FREEDOM OF INFORMATION REQUEST RESPONSE INITIAL RESPONSE n ADD'L RESPONSE NO. REQUEST IDENT. NO. 3094-91 DATE D 1. We are enclosing records you requested. D We believe that they fully respond to your request. These records plus those that will be sent later fully respond to your request. D See item 3. D 2. Records you requested are not immediately available. We have ordered copies and will forward them to you as soon as we receive them. Please allow several weeks for delivery. D 3. As explained in an attachment to this form, records you requested cannot be released to you. If item 2 above is not checked, we have enclosed all requested records available for public release at this time. D 4. Records you requested are available from another agency. We have forwarded your request to that agency; a copy of our letter of transmittal is attached. 5. Records you requested have been published and are available from the source identified below. RECORDS REQUESTED; All labels that existed in 1976 and 1977 for 2-4D, 2,4-D Amine, 2,4,5-T, Silvex, Kuron, Hydrothol, Hydout and/or Diquat that were manufactured by Diamond Shamrock, Inc., currently known as Occidental Chemical Company R E C O R D S EN C LO SED (or source of public documents): Printout by Pest Bank Labels from files and compact label file RECORDS THAT W ILL BE FORW ARDED LA TER : RECORDS THAT A R E NOT A V A ILA B LE FOR PUBLIC R ELEA S E: REM ARKS: EPA Form 1550-9 (5-81) U .S . GO VERNM ENT PRINTING OFFICE-I904-459-O9B/58O3 Ava Marshall (703) 557-4444 J1L ch'  )(U '2 . < 7 4 - = ? ; NA: A DIAMOND CHEMICAL WEED KILLER DACAMINE 4D Status-ll. A DIAMOND CHEMICAL WEED KILLER DACAMINE 4D Status-11. CROP RIDER DACAMINE Status-ll. DACAMINE 4D WEED KILLER Status-IA. DACAMINE 4D Status-11. EN: 677-200 -- ^ SoSB'f - /3 ( _) RG: OCCIDENTAL CHEMICAL CORPORATION, DEVELOPMENT CENTER, V-81 BOX 344, NIAGARA FALLS NY 14302 AI : 22.8000% 2 ,4-Dichlorophenoxyacetic acid (C030001) 28.9000% N-Oleyl-1,3-propylenediamine 2,4-dichlorophenoxyacetate (C030029) NA: A DIAMOND CHEMICAL WEED KILLER CROP RIDER DACAMINE 2D Status-11. A DIAMOND CHEMICAL WEED KILLER DICAMINE 2D Status-11 . DACAMINE HERBICIDE Status-IA. EN: 677-201 5 0,i 3^/ - I<+ RG: OCCIDENTAL CHEMICAL CORPORATION, DEVELOPMENT CENTER, V-81 BOX 344, NIAGARA FALLS NY 14302 AI : 10.3000% 2 ,4-Dichlorophenoxyacetic acid (C030001) .6000% N-Oleyl-1,3-propylenediamine 2,4-dichlorophenoxyacetate (C030029) NA: RIGHT-OF-WAY 4D DIAMINE SALT OF 2,4-D Status-ll . TRAILWAY 4D Status-IA. EN: 677-239 --9 5 0 5 3>4 - / I S - x 'c l d ir h /il RG: OCCIDENTAL CHEMICAL CORPORATION, DEVELOPMENT CENTER, V-81 BOX 344, NIAGARA FALLS NY 14302 AI: 22.8000% 2,4-Dichlorophenoxyacetic acid (C030001) 28.9000% N-Oleyl-1,3-propylenediamine 2,4-dichlorophenoxyacetate (C030029) / V/ NA: DIAMOND CHEMICAL 2,4-D ACID DUSTLESS FOR MANUFACTURING PURPOSES ONLY Status-ll 2, 4-D ACID TECHNICAL FLAKE Status-IA. EN: 677-266 5 5 ' W - i3/ * RG: OCCIDENTAL CHEMICAL CORPORATION, DEVELOPMENT CENTER, V-81 BOX 344, NIAGARA FALLS NY 14302 AI: J 95.0000% 2,4-Dichlorophenoxyacetic acid (C030001) NA: DIAMOND CHEMICAL 2,4,5-T ACID DUSTLESS FOR MANUFACTURING PURPOSES ONLY Status-] EN: 677-267 ------------ X C L.p 1*7^3 RG: OCCIDENTAL CHEMICAL CORPORATION, DEVELOPMENT CENTER, V-81 BOX 344, " 1^ AGARA FALLS NY 14302 A a.: 98.0000% 2,4,5-Trichlorophenoxyacetic acid (C082001) 108? O ' " 0* NA: DACAMINE TURF HERBICIDE Status-lA. EN: 677-276 --> 5'o5 3V "2-2 \'Cld i c - / i / i 9 ? RG: OCCIDENTAL CHEMICAL CORPORATION, DEVELOPMENT CENTER, V-81 BOX 344, NIAGARA FALLS NY 14302 ^ AI : 10.3000% 2 ,4-Dichlorophenoxyacetic acid (C030001) 20.6000% N-Oleyl-1,3-propylenediamine 2,4-dichlorophenoxyacetate (C030029) ^ NA: TRAILWAY R WEED KILLER S t a t u s - l A . EN: 677-288 5s:W-/32- yCtl^O j R G : OCCIDENTAL CHEMICAL CORPORATION, DEVELOPMENT CENTER, V-81 BOX 344, o NIAGARA FALLS NY 14302 * AI: 22.8000% 2 ,4-Dichlorophenoxyacetic acid t (C030001) 28.9000% N-Oleyl-1,3-propylenediamine 2,4-dichlorophenoxyacetate (C030029) NA: DACAMINE 360D Status-lA. EN: 677-438 --* ?ie>5'W ^>2- ,, A . fo re Am .<S. 2 ? , I S' / RG: OCCIDENTAL CHEMICAL CORPORATION, DEVELOPMENT CENTER, V-81 BOX 344, ^ NIAGARA FALLS NY 14302 AI: 15.9000% 2 ,4-Dichlorophenoxyacetic acid (C030001) 31.8000% N-Oleyl-1,3-propylenediamine 2,4-dichlorophenoxyacetate (C030029) 'O 2? NA : DACAMINE SOLUTION HERBICIDE Status-lA.-- />*T& EN : 677-443 -- ^ (,<?/ k /6T ^ RG: OCCIDENTAL CHEMICAL CORPORATION, DEVELOPMENT CENTER, V-81 BOX 344, u NIAGARA FALLS NY 14302 X AI: 01.5900% 2,4-Dichlorophenoxyacetic acid (C030001) 03.1800% N-Oleyl-1,3-propylenediamine 2,4-dichlorophenoxyacetate (C030029) / \ NA: DACAMINE 4D WEED KILLER Status-24C Approval Date: 830426. ' XEN: SLN LA-830022 ^RG: OCCIDENTAL CHEMICAL CORPORATION, DEVELOPMENT CENTER, V-81 BOX 344, ^ NIAGARA FALLS NY 14302 - AI : 22.8000% 2,4-Dichlorophenoxyacetic acid (C030001) 28.9000% N-Oleyl-1,3-propylenediamine 2,4-dichlorophenoxyacetate (C030029) , NA: DACAMINE 360D Status-24C Approval Date: 830426. EN: SLN LA-830023 RG: OCCIDENTAL CHEMICAL CORPORATION, DEVELOPMENT CENTER, V-81 BOX 344, NIAGARA FALLS NY 14302 ^ AI : -- 15.9000% 2 ,4-Dichlorophenoxyacetic acid (C030001) 31.8000% N-Oleyl-1,3-propylenediamine 2,4-dichlorophenoxyacetate (C030029) 1083 O-i'Ofe r- i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY W A SH IN G TO N , D.C. 20460 CANCELLATION REASON o ro p t i c e p e s t ic id e * a n o t o x ic Su b s t a n c e s Preparation Date: jjJt Product Registration Number: Cf V 7-" ^ t, Cancellation Effective Date: - J j / ' l V - __ Cancellation Reason Code (check appropriate code): REASON REASON CODE CODE EXPLANATION 02 Company requested. 03 PR Notice 04 EPA letter 08 Undeliverable (no forwarding address) 09 Registrant out of business 10 ER Notice 21 Result of Data Call-In notification 22 Result of Registration Standard Issuance 23 Result of Special Review Action 24 Result of Label Improvement 25 Result of registrant request (same as code 02) 26 Result of other Agency initiated action (same as code 04) 27 Result of non-food use data call-in 28 Result of Generic data exemption call-in (GDE) 29 Result of Dioxin call-in 30 -Reason unknown 31 Intrastate Cancellation (PR Notice 88-7) 35 Cancelled for non-paytneht of maintenance fee 3^ Cancelled for non-payment of Aftintenance fee - Undeliverable If a copy of the cancellation letter, federal register notice or other related cancellation documentation is missing from this registration jacket, you may contact one of the following Product Managers and request a replacement copy. PM imber 12 15 16 17 21 23 25 31 32 Product Manaaer Name Dennis Edwards George LaRocca Dill Miller Phil Hutton Susan Lewis (Acting) Joan Miller (Acting) Robert Taylor John Lee Jeff Kempter Phone Number 703-557-2386 703-557-2400 703-557-2600 703-557-2690 703-557-1900 703-557-1830 703-557-1800 703-557-3676 703-557-3964 1084 r i -- ... . :.... ..... r UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 CANCELLATION REASON O FFIC E o r PE S T IC ID E * AND TOXIC SU B ST A N C ES Preparation Date:________ Product Registration Number: ~3 ^ -- 'J \ /o h * /x T y * Cancellation Effective Da te : /O / ________ Cancellation Reason Code (check appropriate code): REASON REASON CODE CODE EXPLANATION 02 Company requested. 03 PR Notice 04 EPA letter 08 Undeliverable (no forwarding address) 09 Registrant out of business 10 ER Notice 21 Result of Data Call-In notification 22 Result of Registration Standard Issuance 23 Result of Special Review Action 24 Result of Label Improvement 25 Result of registrant request (same as code 02) 26 Result of other Agency initiated action (same as code 04) 27 Result of non-food use data call-in 28 Result of Generic data exemption call-in (GDE) 29 Result of Dioxin call-in 30 Reason unknown 31 Intrastate Cancellation (PR Notice 88-7) Z 35 Cancelled f o r non-payment o f maintenance fee 3^ Cancelled for non-payment of lSftihtenance fee - Undeliverable If a copy of the cancellation letter, federal register notice or other related cancellation documentation is missing from this registration jacket, you may contact one of the following Product Managers and request a replacement copy. PM Number 12 15 16 17 21 23 25 31 32 Product Manaqer Name Dennis Edwards George LaRocca Bill Miller Phil Mutton Susan Lewis (Acting) Joan Miller (Acting) Robert Taylor John Lee Jeff Kempter Phone Number 703-557-2386 703-557-2400 703-557-2600 703-557-2690 703-557-1900 703-557-1830 703-557-1800 703-557-3676 703-557-3964 1 f)C C . ^ ,i \0 (8/22/89)  Vt READ ENTIRE LABEL BEFORE USIN G THIS PRODUCT />'i.' . GENERAL INFORM ATION DACAMINE 4 0 ii o n oil-soluble, w o ter-em ulsifioble d iam in e formulation of 2.4-D. It com bine* th e a d v a n ta g e s of bo th the e ite r a n d am ine form* of 2,4-D. DACAMINE 4 0 contain* both^ the non-volatile feature* of amine* o n d the effectivenej ester*. It i* desig n ed to control w e ed s in cro p la n d ,____^ o onfe orchard* o n d law n o re o s . The follow ing is a p a rtia l *TTst of weed* controlled oy DACAMINE 4 0 : ALUGATORWEEP AtlEMISIA "" (common mugwert) CANADA THISTLE WELD BINDWEED (crM plnf |*nny) Annual ch*jfrwood Hem p Seggartick ^ f l e n a it Binerweed ~ Blotkoyod S u to n JjyjojoLmhtwiUeAeldaotQii Bull ihistfo Burdock C a r petweed Chicory Sour dock ~5pllie rush' pgrt^*1^ Dayllower Vonweed Fi'ddleneck Hower-ot-an-hour .. ivy S u nflow er larw eed ' V^lvefle'tff ~W fld corrof Wild cucumber W intercrest 'VankeeVTeed NOTE: local condition*, crop v arieties a n d a p p lica tio n re g u lations vary and m ay affect use of this herbicide. Consult local agricultural experim ent station or extension service w eed specialists a n d state regulatory agencies for recom m endations in your a r e a . Aerial application may be of use for control of w eeds on certain crops. Applications should only b e m ad e by applicators experienced in the use of 2,4-0 formulations. Regulations governing a e rio l a p p lica tio n of herbicides o r e in effe c t in many stotes. Consult local regulatory agencies concerning requirements b efore m aking applications. TREATING SMALL AREAS: O n e tab lesp o o n fu l of DACAMINE 4 0 in 116 gallons of w a te r is alm ost eq u o l to 1 q u a r t in 100 gallons. W hen stored a t tem peratures below freezing, it m ay b e necessary to w arm th e contents to 45 F. o n d mix thoroughly before using. d ir e c t io n s fo r u s e PREPARATION OF THE SPRAY: Fill th e sp ra y lank with h alf the required amount of w ater; then ad d th e recom m ended am ount of DACAMINE 4 0 with a g ita tio n o n d continue filling the spray tank with bolonce of w ater. Keep ag ita to r running when filling sp ra y tank a n d d u rin g sp ra y o p eratio n s. Use enough w ater p er acre to give uniform coverage. The am ount of w ater required for low-volume applications m ay vary. For ground application, when w eeds o re 1 to 3 inches tall, use IS to 25 gallons of w ater p er ocre. W hen w eeds a r e taller than 3 inches, use 25 to 50 gollons of w a te r p e r ocre. For oerial application, when w eeds a re I to 3 inches tall, use 5 to 10 gallons of w a te r p e r a c re . W hen w e ed s o re talle r th a n 3 inches, use 10 to IS gollons of w a te r p e r ac re. For highvolume applications, 100 gallons o r m o re o f w a te r will b e n e e d e d for g o o d co v e rag e . In an y ca s e , use th e sa m e am ount f DACAMINE 4 0 recom m ended p e r ac re. TIME OF At PLICATION: Best results a r e o b ta in e d w hen - DACAMINE 4 0 Is used on young w e ed s th o t a r e actively grow ing. Application of low er listed ra te s to susceptible annuol w eeds usually will b e satisfactory, but for p ere n n ia l weeds an d other conditions, such os in very dry oreos w here 9 ^ 9 .,.; x , .. ACCEPTED FE6 2 l ,/f/ 7 Z . oc NET CONTENTS EPA Keg. No. 677^201 _ GALLONS DACAMINE^ Weed K iller Contains 2 .0 Pounds 2 , k - D Acid Equivalent per Gallon ACTIVE INGREDIENT: N-O leyl-1, 3-propylenediaTr.i ne s a lt o f 2,li-Dichlorophenoxyacetic A c id * ............................. .... . . . . 2 1 .9 $ -.s 2,*{-DichlorophenG:xyacetic Acid . . ' ............................................... 11.1$ INERT INGREDIENTS:........................ 67.0$ TOTAL..................... 100.0% ^Equivalent o f 2,U-Dichlorophenoxyacetic A c i d .......................... 23.0$ Licensed under United States Patent No. 2,9^0,^11 18 p t. type - CAUTION:- KEEP OUT OF REACH OF CHILDREN - 12 p t. type SEE SIDE PANEL FOR ADDITIONAL CAUTIONS DIAMOND SHAMROCK AGRICULTURAL CHEMICALS DIVISION DIAMOND SHAMROCK CORPORATION CLEVELAND, OHIO UUllU > , J >.) 3 J )> > .) > i> ) > J > > ' > -> >- 1 94 , , , p - U lO READ ENTIRE LABEL BEFORE USING THIS PRODUCT GENERAL INFORMATION DACAMINE i s an o i l - s o l u b l e diamine form o f 2 } h-T> which i s formulated t o be used only with water. I t combines th e advantages o f both th e e s te r and amine forms o f 2,U-D. DACAMINE c o n t a i n s both the n o n -v o la tile featu res o f amines and th e e ffe c tiv e n e ss o f e s t e r s . I t i s designed t o con trol weeds in croplands, pear and apple orchards and lawn areas. The follow in g i s a p a r tia l l i s t o f weeds co n trolled by DACAMINE: ARTEMSIA (common mugwort) CANADA THISTLE . FIELD BINDWEED (creeping jenny) HORSE NETTLE . LEAFY SPURGE MILK-TEED RUSSIAN KNAPWEED . YARROW Annual chickweea Beggartick Bitterweed Blackeyed Susan Broomweed Buckhorn plan tain Bull th istle Burdock Carpetweed / nv -vv Cocklebur Coffeebean Croton Curly dock Curly indigo Dandelion Fanweed Fiddleneck Flower-of-an-hour Gooseweed Hemp Henbit Ironweed Jimsonweed Knotweed Kochia Lambsquarters Mallows M arestail Mars h e ld c r Mexicanweed Morningglory Mustards N ettle, stinging Pennycress Peppergrass Pigweed Plantain Poison ivy Poorjoe Puncturevine Ragweed (common, gian t, western) Shepherdspurse Slender aster Snow-on-the-mountain Sour dock Spike rush Spurge Star -th istle Sumac Sunflower Tarweed V elvetleaf Wild carrot Wild le ttu c e Wild parsnip Wild radish Willow W intercress Yankeeweed NOTE: Local co n d itio n s, crop variet5.es and a p p lica tio n reg u la tio n s vary and may a ffe c t use o f t h is h erb icid e. Consult lo c a l a g r ic u ltu r a l experiment s ta tio n or extension serv ice weed s p e c ia lis t s and s ta te regu latory agencies fo r recommendations in your area. A eria l ap p lication may be o f use fo r con trol o f weeds on c e r ta in crops. A p p li ca tio n s should only be made by ap p licators experienced in the use o f 2 , t-D form ulations. Regulations governing a e ria l app lication of herbicides are in e f f e c t in many s t a t e s . Consult lo c a l regulatory agencies concerning requirements before making a p p lic a tio n s. .> ) > >) > TREATING SMALL AREAS: One tablespoon ful o: DACAMINE i n 1 - l / J2 .g a lio n s >p? fvirafcejr > i s almost equal to 1 quart in I00~ g a llo n s. >o o >j > -1 - D-llH 'NOTE: When stored at temperatures he low freezin g, i t may he necessary t o warm the contents to ^5F and mix thoroughly before using. DIRECTIONS FOR USE TIME OF APPLICATION: Best r e su lts are obtained when DACAMINE i s used on . young weeds th at are a c tiv e ly growing. A pplications o f lower l i s t e d ra te s t o ' su scep tib le annual weeds u su ally w i l l be sa tisfa c to r y , but fo r peren nial weeds and other con d ition s, such as in very dry areas where h i l l i s d i f f i c u l t , use- th e higher r a te s. When used as a s e le c t iv e spray on crops, th e stage o f growth o f th e crop must be considered. Some woody plan ts and weeds are hard t o k i l l and repeat a p p lication s may be n ecessary. PREPARATION OF THE SPRAY: F i l l th e spray tank w ith h a lf th e required amount o f water. Then add th e recommended amount o f DACAMINE with a g ita tio n and continue f i l l i n g th e spray tank w ith balance o f water. Keep a g ita to r running when f i l l i n g spray tank and during spray operations. Use enough water per acre . t o .give uniform coverage. The'amount o f water Required fo r low-volume a p p li cation s may vary. For ground a p p lic a tio n , when weeds are 1 to 3 inches t a l l , use 15 to 25 gallon s o f water per acre. When weeds are t a l l e r than 3 in c h e s, use 25 to 50 gallon s o f water per a cre. For a e r ia l a p p lica tio n , when weeds are 1 to 3 inches t a l l , use 5 to 10 g a llo n s o f water per acre. When weeds are t a l l e r than 3 in ch es, use 10 to 15 ga llo n s o f water per acre. For high volume ap p lica t io n s , 100 gallon s or more o f water w i l l be needed fo r good coverage. In any c a se , use the same amount o f HACAMINE as recommended below. SMALL GRAINS (Wheat, B arley, Rye): Apply DACAMINE in su ffic ie n t water fo r uniform coverage on sm all grains when f u lly t i ll e r e d or stooled to 8 inches t a l l ) but before head emerges from th e "boot." Crop injury may r e su lt i f applied e a r lie r than " tille r " or la t e r than "boot" stage. DO NOT use on grains undersown with legumes such as a lf a lf a or clovers except where some legume inju ry can be to le r a te d . DO NOT graze or feed forage from trea ted f ie ld s w ithin 2 weeks a fte r treatm ent. See chart fo r recommended r a te s. For la t e season use to con trol large succulent weeds, apply 1 to 2 quarts -per acre in s u ff ic ie n t water fo r uniform coverage on sm all grain from dough stage to harvest--use only when weeds threaten to in te r fe r e w ith harvest operations. DO NOT use trea ted straw for livestock feed. RICE: Apply DACAMINE wh e n t h e r ic e i s in th e la t e t i l l e r i n g sta g e , hut before i t has started to j o in t. This should be when th e r ic e seed lin gs are about 6 to 10 weeks old . Damage to r ic e may occur i f DACAMINE i s applied a fte r r ic e i s 12 weeks old . Treatment a fte r flood in g i s u su ally safer than treatment before flo o d in g . See chart fo r recommended r a te s. CORN: POSTEMERGENCE--Apply DACAMINE f r o m emergence to ta s s e lin g . When spraying corn above 10 inches in h e ig h t, use nozzle extensions (corn .d rop s), d ir ec tin g the spray at base o f th e com p la n t. DO NOT apply from ta s s e lin g to dough stage. Avoid c u ltiv a tio n soon a fte r treatment when corn nay be b r i t t l e . Hybrids vary in tolerance to 2,4-D . Consult lo c a l agricu ltu ral experiment sta tio n s or extension serv ice weed s p e c ia lis t s regarding the use o f 2,H-D on your s p e c ific hybrid. See chart fo r recommended r a te s. SORGHUM: Apply DACAMINE when sorghum p lan ts are 6 to 12 inches t a l l and secondary roots are w e ll e sta b lish ed . Use drop nozzles when crop; i s ,oyer 10 . ' ` inches t a l l . DO MOT apply from flow ering to dough stage. Ste,e, chdrt "fti'.j > recommended r a te s . 2- - SUGAR CANE: Apply q s a post emergence ap p lication in spring a fte r cane emerges and through layby. See chart fo r recommended r a te s. Crop (See Detailed D irections above) Wheat, Barley, Rye Annual weeds Perennial weeds Rice Com Postemergence Sorghum Postemergence Sugar Cane Amount o f DACAMINE per Acre For Average Conditions 1 to 2 pints 1 quart 1 to 2 quarts For Dry Conditions as in Western S tates* 1 to 2 quarts 1-l/lj- to 2 quarts 1 pint 1 to 1-1/2 pints 1 pint 2 to k quarts * to 1-1/2 pints ^Arizona, C a lifo rn ia , Idaho, Montana, Nevada, Oregon, Utah, Washington and Wyoming . , ;. - , FORAGE CROPS: (Pastures and Rangelands) To con trol many broadleaved weeds in p a stu res, meadows and rangelands, use 2 quarts per acre of DACAMINE in s u f f ic ie n t water to provide for uniform ap p lica tio n . Treat pastures when weeds arc growing a c tiv e ly . DO NOT apply when grass i s in "boot" to "milk" sta g e. DO NOT apply to neyly seeded pastures u n t il grass i s w e ll e sta b lish e d , or a fte r heading b egins. Most legumes are u su a lly injured or k ille d at th e ra tes recom mended. For control o f w ild g a r lic and w ild onion in p a stu res, apply it to 6 quarts per acre in very early spring and repeat annually u n t il weeds are era d i- cated. EO NOT graze dairy animals on trea ted areas w ithin 7 days a fte r a p p li cation. LAWNS, GOLF COURSES AND SIMILAR TURF: Apply 1 -1 /2 to 2 quarts o f DACAMINE per acre in 100 gallons o f water or su ffic ie n t water to provide adequate uniform coverage. For tr e a tin g sm all areas, use 3 tablespoonsful o f DACAMINE in 2 g a llo n s o f water per 1,000 sq. f t . Do not apply during periods o f drought. Do not apply DACAMINE to n e w l y s e e d e d tu r f u n t il grasses are w e ll esta b lish ed and a fte r making at le a s t two mowings. Bare areas can be reseeded in 3 to 6 weeks. Bentgrass v a r ie tie s vary in toleran ce to DACAMINE under d iffe r e n t conditions o f growth. Use rates no higher than 2 quarts per acre on bentgrass and apply only where experience has shown ap p lication to be s a fe . Injury may r e s u lt i f applied to S t. A ugustinegrass, centipedegrass, carp etgrass, clo v ers and Dichondra. PEAR AND APPLE ORCHARDS: Apply at rate o f 2 to 4 quarts DACAMINE per acre in su ffic ie n t water to give good coverage and thorough wetting o f weeds. Use the higher rate for control o f perennial weeds. Repeat applications may be necessary to control some woody plants and perennial weeds. DO NOT apply to bare ground areas as injury may r e su lt. When bare areas do occur, spot trea t by d ir e c tly spraying only at undesirable p lan ts. DO NOT apply immediately before ir r ig a tio n . Withhold irrig a tio n for three (3) days follow ing app lication . Best r esu lts are obtained when applied within two (2) days follow ing ir r ig a tio n and when weeds are growing a c tiv e ly . DO NOT allow spray or spray dri i t ' t o ' 913- - contact f o lia g e , f r u it , stems or trunks o f fr u it t r e e s . Use low pressure and coarse n o z z le s, and spray on s t i l l days to minimize d r if t . WOODY PLANT CONTROL: To con trol 2,U-D su scep tib le p lan ts such as a ld e r, buckbrush, elderberry, sumac and w illow in waste areas or non-crop land, such as pow erlines and highway rig h ts-o f-w a y , vacant l o t s and fence rows, use ^ to 6 quarts in 5 0 gallon s o f water in spring and early summer. For tr e a tin g sm all a rea s, u s e 3 t o b o u n c e s o f DACAMINE in one ga llo n o f w ater. Wet thoroughly a l l parts o f th e p la n ts , including fo lia g e and stems to poin t o f r u n -o ff. Do not tr e a t during periods o f severe drought or in ea rly f a l l when lea v es have l o s t th e ir healthy green c o lo r . H a r a -to -k ill sp ec ies may need retreatme: the following season. GENERAL WEED CONTROL: On vacant l o t s , road sid es, and along fence rows and around b u ild in g s, use 2 t o k quarts o f DACAMINE in 100 g allon s o f water per acre. Tnorougiily wet a l l fo lia g e to ru n -o ff. A pplications should be made t o weeds in an early and a c tiv e stage o f growth. CAUTION Harmful i f swallowed or absorbed through th e skin. CAUSES IRRITATION OF EYES AND SKIN. DO NOT for at get lea s in t 15e yme si.nu tIens case of and get contact, flush eyes medical attention. w ith plenty o f water DO NOT allow contact w ith skin or c lo th in g . Wash exposed skin w ith p len ty o f soap and w ater./ DO NOT store near f e r t i l i z e r s , seed s, in s e c tic id e s or* fu n g icid e s. Rinse out sprayer and container a fte r use and properly dispose o f w astes in non-crop areas away from water su p p lies. DO NOT use th e same spray equipment fo r applying other m aterials to p la n ts , as injury w ill resu lt. DO NOT contaminate water -used fo r ir r ig a tio n or domestic purposes. Avoid spray d r ift to 2,4-D su scep tib le plants such as cotton , tom atoes, flow ers, grapes, f r u it tr e e s and ornamentals. "Coarse sprays are l e s s l ik e l y to d r i f t . Spray only on s t i l l days w ith low pressu re, coarse spray and lowered booms. DO NOT reuse empty containers. Return to drum recon d ition er or destroy by p erforatin g or crushing, and burying in a safe p lace away from water su p p lies. WARRANTY AND LIMITATION OF DAMAGES SELLER warrants th at t h is m aterial conforms to i t s chemical d e scrip tio n and i s reasonably f i t fo r the purposes sta ted on th e la b e l when used in accordance w ith d irectio n s under normal conditions o f u se, and BUYER assumes the r is k o f any use contrary to such d ir e c tio n s. SELLER makes no other express or im plied warranty, including any other express or im plied warranty o f FITNESS or o f MERCfIANTA3ILITY, and no agent o f SELLER i s authorized to do so except in w ritin g w ith a s p e c ific reference to t h is warranty. In no event s h a ll SELLER'S l i a b i l i t y for any breach o f warranty exceed th e purchase p r ice o f th e m aterial as t o which a claim i s made. , 8/27/75 -h- 2 -i* ENTIRE LABEL [ # K ^T y M l I W W IKIM THK PPOOI ; G EN ERAL IN FORM ATION JLJ& 2~ty\' - Q. .^ ^ aiilt/Je a tu ras^ o T ^ iiu n e ^ ta lh /m q ^ fic^ jFfe criye n e M ^ o f | g 5 e s t ir * lt .U : d e sig n e d ; toycontrQl/w eedty.olona "d ra in a g e J~ditch7f f i j O r b o n k j ; ; `: h iq h w ay sffro ilro a d ^ d n d fu tility 'rig hts-o f-w ay, : ronqe'% j I :g\ ?a n cfs.fe~nce or. h ed g e ro w y -and a ro u n d . buildin^s/ to n k fo rm s.rifffe l (^ f ^ S 2 6 a n e c - jlo iE E n $ q ^ is im f la i^ p e n 4 ir o p 4 N o r ^ w o n e > a r B ^ H - ly^ J^ A llW A Y^ D /ibajidoj'bsinanoh-volatilsyjU yospijcially-'effec-T^ : ,tive ;baoint;do#p-roo)ed jparVnnial^weods'* b e ca u s ! It i* slow ^i " "actlna/ thu* allowina-mora^trando^ation o fy h e h erb icid e;jn to ^ **" ir o o t jf b f 2theV"p!antrto : a ffo rd fa \b e tte r^ kill of i the 'entire % ^heyfollowina;^' `` .. "''ra ^ALLIGATORWE ED.:'_____ AKikM IJjlA (common mugwort)' iX A N AD'A11HISTLE' " ' " BINDWEED l ^ g j ^ f c r ftM S gTT O I Lb '' I -.7 tEAFY SPURGE M i h ^ `'v ' . ,. lem p I f f .i Beaaortick ^__^. ^ vniijJ.F t e n p i t V..^..V..au.;..:^,,,4*_ 3weed/common I j>:^biWerweecf- lronweed'':-ff^i^2.*iii.-i-^? p io n t . western^ I '^ -Blockeyed S u san Jimsonweed jShephnerdspurse TSroomweea KnotweecT? Slender aster _ _ ^TJuckhorn plantain Kochio 'ir-ht ^v.V-VH/Snow-on-the-mountain t3isS'bull thistle ....Jif'viiy'f*e>fti1-;' Lombsauarters'-yl*;^-our dock -- | & B u r d o c k ^.^ a a > :% ? ;-W oilow $ . . "vSgpike^rush ~ . ' v--` V r^ vlh icory - .v,->-Ti,^>'*-'W arshelJer ' ,S t a r thistle y 4;eBlkleSSr,:t<&^^ Cofftf8trs3n 1 FiririUwtfk . _____ "J5.cl7Yr`*r-',*{-"n-h?''r ! ~ i'T' ^t,Gooseweed P u u i|M 1' -~Wfld porsnip y . n--; JW ild radish >. - ~W intprrrpss`-*t i , ' * f t "vJIl> - ) r ``- , V.-T! "'* . ` - ' ' 'i, V ' ^DIRECTIO NS FOR U SE PREPARATION O F . THE SPRAY: Fill the spray tank with half ' the required amount of water. Then odd the recommended amount of TRAILWAY 4D with agitation and continue filling, the spray tank with water. Use enough water per acre to give uniform coverage, which is usually no less than 20 . gallons for low-volume applications. For high-volume appli cations. 100 gallons or more of w ater will be needed for good coverage. TIME O F APPLICATION: 'Best results are obtained when TRAILWAY 4D is used on weeds that are young and in a rapidly-growing condition. Applications of lower rates to susceptible annual weeds usually will be satisfactory, but for porennial weeds and other conditions where kill is ditficult, use the higher rates. Some woody plants and weeds are hard to kill, and repeat applications may be necessary. FOR W EED CONTROL ALONG ESTABLISHED RIGHTS-OF-WAY, DRAINAGE DITCH 3ANKS AND RANGELANDS: For the control of susceptible annual broadleaf weeds, use TRAILWAY 4D at the rate of one pint per acre during the early part of the growing season when moisture and temperature con ditions a re adequate for rapid growth of the young weeds. DO NOT apply when grass is in "boot" to "milk" stage. To control more mature weeds later during the growing season, a 'S&W*V***..T..S CP W J *S88 Il <-.vi-^Vvf^Si 'sis ,. *? :*y ,:'>-<A.2 V.r.," -".- ' u4v:-.!:>*-;' - *'wvckgv.e'w$fVS;2.V*S r t - i .i*& tmsZ&W- ffS*-Kfo&ttiSif' ifcstefck. 8- cvft J i l l l i a v i &rV<U>*L- Hy*SL ;: 'sv^v:\l- C ontains 4.0 Pounds 2 ,4 -0 Acid Eq uivalent Per G allo n A CTIV E INGREDIEN T: N -O leyl-l,3-p rop ylen ed iam in e salt of 2,4-Dichlorop h e n o x y a c e tic A c i d * ......................................................................... .................... IN ER T IN G R E D IE N T S :.................................................................................................. T O T A L ....................................................... 57.0% 43.0% 100.0 % fciWs- ` E q u iv a le n t to 2,4-D ich Io ro p h en o xyacetic A cid 4 2 .3 % 1093 O' Wmmm il Scf? 'SS % 1'c.vejv : . ' 1 ;<&,use-TRAILWAY 4D ot the rale of one quart per acre.' .,;. I %.TRAILW AY, 4D should be used at the rate of one to two*5---! ^ q u a r t s per, acre to. control deep-rooted perennial weeds. J 'f lower' ra te , can, be. used, on small weeds in an active stag. ... .^,pf,iflrowth.^ For'-the! control of wild garlic and wild onion, "y s :a p p ly tw o'to three quarts per acre in very early spring a n d . , t fjj$repeat annually until weeds are eradicated. For treating small v :; :2j$.orea*:-'u** 5J V. tablespoonsful of TRAILWAY 4 0 in two g a llo n s^ , ^ifof water p e r,'1,000'square feet. Most legumes a re usually Injured . a t t h e rates recommended on this label. DO NOT '; '* apply to recently-seeded areas until g rass' is well established ;5 :.or on. creeping grasses such as bent. . i^ WOODY,PLANT. CONTROL: To control 2,4-D susceptible woody p lan ts; such as. alder, ; buckbrush, elderberry, sumac and ' ^ willow.V js e four Ho six quarts in 100 gallons o f w ater . i n ' i f j Tpt'spring or early summer. For treating small areas, use 1Mr to ) ,,5^,2 ounces of TRAILWAY 4D in one gallon of water. W et " ^ th o ro u g h lya ll parts ' of the plants, including foliage end y vijgstems,- to point of run-off. Some woody plants and weed^, . . are hard to kill and . repeat applications may be necessary, 'i~<DO N O T.treat during periods of severe drought or in e a r ly - J ^ l.fa ll when leaves have lost their healthy green color. . .j `N GENERAL W EED CONTROL: On vacant lots and around :_ .' buildings and similar non-crop areas, use 1 to 2 quarts of TRAILWAY 4D in 100 gallons of water per acre. Thoroughly -'- wet ail foliage to point of run-off. Applications should be /; V. made to weeds in an early and active stage of growth. -. DO NOT graze dairy animals on treated areas within 7 days . p after application. 'S T '? .- - .' / CAUTION ? N y. . .. Harm ful if sw allo w ed or absorbed through the skin. % CAUSES IRRITATION OF EYCS AND SKIN. -i`.v D O NOT get In eyes.' In case of contact, flush eyes w ith .Hi,/ plenty of w ater for at last I S m inutes and get m edical ^ a t t e n t i o n . ' .->' '- .D O NOT allow contact w ith skin or clothing. V/ash exposed jV, skin w ith plenty of soap and w ater. ,r DO N OT store n ear fertilizers, seeds, insecticides or ;:l: fungicides. `'SSN ; S :.j,.,Rinse out sprayer and containei after use crN-^ properly .H; dispose of w astes in non-crop a re as a w a y from w a te r V.l supplies.. V & ';$ DO N OT use the sam e spray equipm ent for applying other f?' m aterials to plants, as injury w ill result. DO N OT contam inate w ater used for irrigation or dom estic purposes. Avoid spray drift to 2,4-D susceptible plants such as cotton, , tomatoes, flowers, grapes, fruit trees and ornam entals. Coarse sprays are less likely to drift. Spray only on still days w ith low pressure, coarse spray and lowered booms. $ W DO N OT reuse em pty container. Return to drum reconditiouer, or destroy by perforating, crushing and burying or . discarding in a safe place. Licensed under United States Patent No. 2,900 ,4 1 1. W ARRANTY AND UMITATION OF DAMAGES SELLER w arran ts that this m aterial conforms to its chem ical description and is reasonably fit for the purposes stated on the label w hen used in accordance w ith directions under norm al conditions of use and BUYER assum es the risk of a n y use contrary to such directions. SELLER m akes no other express or im plied w arranty, including any other express or im plied w arran ty of FITNESS or of M ERCH AN TABILITY, and no ag ent of SELLER is authorized to do so except in w riting w ith a specific reference to this w a rra n ty . In no event sh all SELLER'S liab ility for a n y breach of w arru n ty exceed the purchase price of the m aterial as to w h ich a claim is m ade. 1094i r\ r\ a 0 - m. 1H 50 POUNDS NET EPA REG. NO. 677-266 accepted' N O V : 1973 UN DE-. . . . . . .. . A .. T IC ID E i ' U N G i C i i j f A i \ D ....,'D L iv '.` : ; __ KOH ECONOMIC &jl:-\N,SLvS.tiTh:. ! ED UNDER N O J e / Z ' V k k SUBJECT ! TO ATTACHED COMMENTS. DIAMOND SHAMROCK CHEMICAL COMPANY 2,!+-D ACID TECHNICAL FLAKE FOR FORMULATING PURPOSES ONLY ACTIVE INGREDIENT: 2,ll-Dichlorophenoxyacetic a c i d ............................................. 99*0$ Minimum INERT INGREDIENTS:............................................................................. 1.0$ TOTAL . . . 100.0$ CAUTION WARNING Avoid inhaling dust. Avoid contact with skin, eyes or clothing. DO NOT take in tern ally DO NOT store near f e r t iliz e r s , seeds, in sec tic id es or fungicides. DO NOT reuse empty container. Dispose of empty container and waste by burying or discarding in a safe place away from domestic water supplies This product is toxic to plant l i f e . Use care in.handling and formulating ta' avoid contact with desirable plant lif e . DO NOT use equipment for other purposes unless cleaned with a suitable chemical cleaner. KEEP OUT OF REACH OF CHILDREN (in large type) SOLD ONLY FOR USE IN FORM4ULATING OF WEED .AND BRUSH KILLERS. NOTICE OF WARRANTY DIAMOND SHAMROCK CORPORATION MAKES NO WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PURPOSE, OR OTHERWISE EXPRESS OR IMPLIED, concerning th is product or i t s u se, which extend beyond the statements on th is la b e l. AGRICULTURAL CHEMICALS DIVISION - CLEVELAND, OHIO UUllU DIAMOND SHAMROCK CORPORATION 9/27/73 1095 O '" U. S. D E P A R T M E N T O F A G R IC U L T U R E AGRICULTURAL RESEARCH SERVICE PESTICIDES REGULATION DIVISION W ASHINGTON, D. C. 20250 APPLICATION FOR [AMENDED! REGISTRATION O F ECONOMIC POISONS (Under the Federal Insecticide, Fungicide, and Rodenticide Act) FORM APPROVED BUDGET BUREAU NO. 40--R I7 4 6 1. D A T E O F A P P L I C A T I O N ' September 26, 1973 IMPORTANT: REA D I N S T R U C T IO N S O N R E V E R S E 2 . n a m e o f e c o n o m i c p o i s o n (M u st be sam e product nam e as on label --do n o t list active ingredients) 2 , k - D ACID, DUSTLESS 3. n a m e a m a i l i n g a d d r e s s o f r e g i s t r a n t (In c lu d e Z ip Code) DIAMOND SHAMROCK CORPORATION Agricultural Chemicals 1100 Superior Avenue Cleveland, Ohio UlkLl^ 4. REGISTRATION NO. 677-266 5. P R O P O S E D E F F E C T I V E D A T E OF CHANGE ASAP 6. n a t u r e o f r e v i s i o n (Check applicable item and give details in item 7 , w hen required) GENERAL REVISION OF LABELING 'H A N G E IN FORM U LA TIO N I I (Give description of exact change in item 7) OTHER (Specify in item 7) ADDITIONAL USES ADDED TO LABELING Q (List new recom m endations in item 7) CHANGE IN PR O D U C T NAME 5xj (G ive old nam e a n d n ew nam e in item 7) 7. d e t a i l s r e q u i r e d b y r e v i s i o n c h e c k e d i n i t e m 6 (A tta ch a d d itio n a l sheets if m o re space is needed) Present name - 2,U-D ACID, DUSTLESS Product name changed to "2,lj~D ACID, TECHNICAL FLAKE" to b etter describe i t s physical form. Active and inert ingredients remain the same. In lin e with desire of EPA the term "For Formulating Purposes On ly" replaces "For Manufacturing Purposes Only." Caution and Warning statements have been brought up to date-. ,^ M / i I I CONTINUED ON ATTACHMENT 8. THE FO LLO W IN G M UST BE SUBMITTED WITH THIS APPLICATION Five (5) copies of revised labeling, including any printed or graphic matter which may accompany the sale of this product. Copies must be clearly legible and identical. If a change in formulation is involved, five (5) copies of a statement of revised formula showing the precise name and precentage of each active and each inert ingredient. (This information is treated confidentially) When appropriate, three (3) copies of Supporting Data.__________________________ 9. S I G N A T U R E O F A U T H O R I Z E D F I R M R E P R E S E N T A T I V E H. H. HARRIS, 10. T IT L E 111. D A T E . S I G N E D Product Registration Coordinator 9/26/73 PR FORM9-198 MAY 1 9 6 9 EXISTING STOCK O F PR FORM 9-198 (AUG. 1966) WILL BE USED UNTIL EXHAUSTED 12. RECEIVED BY USDA-PESTICIDES REGULATION DIVISION, WASHINGTON, D. C _________________________ IN ANY C O R R E S P O N D E N C E ON TH IS PR O D U C T R E F E R TO REG ISTRA TIO N NO. IN ITEM 4. ABOVE. 5 I. 1 0 9 6 0-111=) $ 0 POUNDS NET U .S .D .A . REG* NO, 7 7 -- & OCT.Z;6-4968 A DIAMOND CHEMICAL U N neR TH E FEDERAL IN S EC TIC ID E FUNG ICIDE W D RO OENTICIDE ACT FOR EC O NO M IO .PO IS.O N REG ISTER-i ED U N D ER HO & .S.Z'i2& /SU BJEC t\ ' | TO ATTACHED COMMENTS. 2 ,U , - T ACID DUSTLESS fo r m anufacturing ACTIVE INGREDIENTS: T r ic h l o r o p h e n o x y a c e t i c A c id , , 0 0 0 , 0 0 0 0 0 , 0 0 . 0 0 , 98^ Minimum Batch No, CATOON Keep o u t o f th e rsaoh o f c h ild r e n . A void in h a lin g dust, . A v o id c o n t a c t T*zlth s k i n , e y e s o r c l o t h i n g DO NOT t a k e i n t e r n a l l y , DO NOT STORE NEAR FERTILIZERS, SEEDS, INSECTICIDES AND FUNGICIDES, SOLD ONLY FOR USE IN THE MANUFACTURE OF WEED AND BRUSH KILLERS NOTICE OF WARRANTY DIAMOND SHAMROCK CORPORATION MAKES NO WARRANT! OF MERCHANTABILITY, FITNESS FOR ANY PURPOSE, OR OTHERWISE, EXPRESS OR IMPLIED, c o n c e r n in g t h i s p r o d u c t o r i t s u s e , -which e x te n d beyond t h e s ta te m e n ts on t h i s la b el DIAMOND SHAMROCK CORPORATION - CLEVELAND, OHIO 1*101$ 1097 P 'I,SL0 \ \ : ' i : i e \ ; iju v w.\iv a : 0:,, UED \i O > NE.-iAl IM-'CS.V.ATION . v; r v . : n. g i - 1 : *ni .> f > ^ t 1 ' S : - e ; ! 1c 1 ! h 2 b e ' 1' 0- ' : -d e 1 ol I O . >7 ^ ~ r*. s . * 0' . ' ' j f ' u ; * ie - c 1 ? 1 D, e l i c e - 1i b r e ' 1O.i - ..sii *" *J . ; "S "d 'Il 1e 1 1 o r i C ' '7 1' i .< e . C r . 3'J C o v j l d c e J i ? : . . T* 1* '0 O C . i ' h ' , S. ' c * V '1' e p i a n t i ,e ' F ^ 'e b 0r y . C* . >\ `.* . N ` 1 ^ illi n y -, c f rh 1 ,1, a 1 o ` c n e s ` e r j r - . - j r-' c t e l i m e C ^ -'-.j ; C *0 V i l i . p i i p n c i A. . ' V. r*i, t h u i a : f - . r e d i e n t r o ' ! * . ! b v D 4. r A V. 1,*4 E a r e : - v ' .V e ? i T.-*:1 : n ` o . n KC rn ,o r - :b - -Oji I'1f2' ! ^ 1 *1Q c-a ^ C . ri v d o c k " b incid e ed G T q u n cT[ v y^" j ienbit u o c f y a o ss ^c''Ced .T` v s e J r g e *, ,1 ' A l ' O 1W *o ry ecd 4 -^ --. /r \ Pc iso n iv y Pu r. c ! 'j r i . i n e PCrsT55a~ ' c':'J-yPi-d -L '.corrgi^ " ' i ! y a l i < 'd o; ~n' D'.aECTICNS FO? USE mS F .-GvS GOi.F COURSE F^'RVVAYS. INCIUOIF'G !C--'-T-s- T^' 'A:-v*V$\ - - -di M' ccti- el y ; : 1 '.: . c : b " . .-.` e J - c : i s ' a n $i a n d * p . i p .- d s -- ' ~ r o ' i - i' is pp1 '1'`- ee oo ,*ee oc*33 <o 44 ppiinn ;i ,s .i.n. ,,a ! ; i s C . ` c- ' o r ! j l l , ' . < n l o previde c t :; . e p j o per c c e . n <e re o u ' . ..`ullv a n d --- - -_*-!.' l' : e,i` c.r.,e s p - e v r r j . >4O Tc ? ' y r c s s v o - es ' c ' , .> ' c ' e ` o e 4. C 4. *.*. ! f < E u d iffe r e n t - :- - cc `1 ij c- ` ^ U----i--e- e- e no- F 7, b 0- < j n 4 pi n Is :; ? 1 : ' i : < per 13 CO se, j a re ! e e l on be nt - i i P" : ; . or . l y >1 e r e ,c e ' : e : e b a i s h o n J'PSi. ' r- s ' t i-. y ' e i ' j i ! if n p p l i c d lo I - d e g : C i S. t e r p e ! ; . i l , d o v e r i ;Sc r d 'a . 01.. ; e r i _ 1 . i r.,j b e ` j i s p n d b o v e ei ::4 r.::'e*; ."i 2 'ri conceJi 1 1 _ r j : ' c 1 d ; . l- i l , 0 0 i q o c r e I-. e ' 0 ! _ ' 1o n s . 10e ! <;>'j :> i O r c i " l u n r e f r - e l ; Vr' .r! e ' 1t j c ! l o n s ) 250 fCO 1 PIO . ?... s a i n e a b " :: r. e tJ '+* h e n . . ; .! l o ~ . : s , l ' 0 1 . o u n g G r. d ' J d o ';( . d e r r j ;; ? f . c- d s o ( *" 1 ' t ........ : 1 1 t : ; far co n i' ; ' 0 f o n n u d l : : ' 1 - ; , i. . 1 :*icns . , .A1 n ....<...O. ^ ` .il - i /S 1098 D-wa-i 6601 . \ 079 ` O'E-f r1 ' ' ' , \ j , i - ' 1 : - IViOi ........................................................;Si NDIG- 7 ON'I ! 7 M .............................................................................................................................. 0 1 5 -o/o|ipig-<' jo (|os c u i u / - , ; p & i / o :of;-/ <. | Q > :iN3io:co::; 3 >. UC I '3 F!'V 0'V7 4Pl-'n-d l '7 J *r> 1 p c , r .1 i / if r Li. Ji L ;li2 J. r- r . :L iiMa i/T(aiill / d U til / /. / / /' i IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION ALLEN PETEET, ET AL (ANN I. GREENHILL, ETC.) VS. DOW CHEMICAL COMPANY, ET AL X X X X NO. M-79-79-CA PLAINTIFF*S REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT. DOW CHEMICAL COMPANY TO: DOW CHEMICAL COMPANY by and through its attorneys of record, Mr. Joseph J. Ortego, Rivkin, Radler, Dunne & Bayh, EAB Plaza, Uniondale, New York 11556-0111 and Mr. Alan Brown, P. 0. Box 629, Tyler, Texas 75710 PLEASE TAKE NOTICE that Plaintiff, by and through her attorney of record, hereby requests that Defendant, Dow Chemical Company (hereinafter referred to as "Dow"), answer in writing and under oath, in accordance with the Federal Rules of Civil Procedure, the following requests for production of documents within thirty (30) days of service thereof: REQUEST FOR PRODUCTION NO. 1: Any and all letters, memoranda, documents or writings of any character made by Dow toxicologists or other employees relating to any toxicological organic chemical research, inquiries, investigations or studies in connection with the formation of and/or manufacturing of 2,4-D between 1970 and 1980. ii.ifuitniftii, JUN 1 4 1983 1108; REQUEST FOR PRODUCTION NO. 2: Any and all letters, memoranda or other documents related to any organic chemical research, study or experiments with chlorinated xanthones between 1970 and 1980. REQUEST FOR PRODUCTION NO. 3: Any and all letters, memoranda, reports or other documents regarding any study done in connection with Dow workers who used or were exposed to Dow's 2,4-D between 1970 and 1980. REQUEST FOR PRODUCTION NO. 4; Any and all letters, memoranda, reports or other documents relating to any study done by Dr. Holder in connection with Dow workers who used or were exposed to Dow's 2,4-D between 1970 and 1980. -2- 1107 p -lt3 REQUEST FOR PRODUCTION NO. 5: Any documents relating or referring to the identity, occurrence, concentration, or potential toxicity of any contaminants or impurities that may have been present in Dow's 2,4-D products, or in Dow's 2,4-D acid raw material, from 1970 to present. REQUEST FOR PRODUCTION NO. 6: Any documents relating or referring to the identity, occurrence, concentration, or potential toxicity of any contaminants or impurities that may have been present in Dow's picloram products or raw materials, from 1970 to present. REQUEST FOR PRODUCTION NO. 7 All of Dow toxicology files relating to 2,4-D and/or Tordon 101 between 1970 and 1980. p-(l3/ REQUEST FOR PRODUCTION NO. 8: Any and all letters, memoranda, reports or other documents resulting from research, inquiries, investigations or studies which reveal contaminants or impurities in Dow's 2,4-D, Tordon 101 or picloram which occurred during the manufacturing or other process between 1970 and 1980. REQUEST FOR PRODUCTION NO. 9: Any and all letters, memoranda, reports or other documents in connection with Dow's 2,4-D and/or Tordon 101, which relate to impurities in the manufacturing or other process, which impurities include but are not limited to polychlorinated aromatic hydrocarbons and hydrocarbon impurities including but not limited to 2, 3, 7, 8 tetrachlora xanthone during the years 1970 to 1980. 1109 D ' (/ REQUEST FOR PRODUCTION NO. 10; Any and all letters, memoranda, reports or other documents in connection with xancene compound which is part of Dow's 2,4~D and/or Tordon 101 between 1970 and 1980. REQUEST FOR PRODUCTION NO. lit Any and all letters, memoranda, reports or other documents in connection with research, inquiries, investigations or studies relating to the presence in Dow's 2,4-D and/or Tordon 101 of the substance octochloro xanthone between 1970 and 1980. REQUEST FOR PRODUCTION NO. 12; Any and all letters, memoranda, reports or other documents relating to the presence of any carcinogen in Dow's 2,4-D and/or Tordon 101 between 1970 and 1980. -5- ilio q -1133 REQUEST FOR PRODUCTION NO. 13: Any and all letters, memoranda, reports or other documents relating to any carcinogenic effect or propensity in Dow's 2,4-D and/or Tordon 101 between 1970 and 1980. Respectfully submitted, BALDWIN & BALDWIN P. 0. Drawer 1349 Marshall, Texas 75671 (214) 935-4131 State Bar No. 01623800 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing Request for Production of Documents has been forwarded by U. S. Mail, Certified, Return Receipt Requested, to MR. JOSEPH J. ORTEGO and MR. ALAN BROWN at the above address and by regular U. S. Mail to all other attorneys of record as shown on the attached service list this the //**> day of June, 1987. - 6 - 1111 P-/3( SERVICE LIST ALLEN PETEET, ET AL (JAMES EDWARD GREENHILL) VS. DOW CHEMICAL COMPANY, ET AL; Cause No. M-79-79-CA; In the United States District Court for the Eastern District of Texas, Marshall Division PLAINTIFF. JAMES EDWARD GREENHILL Scott Baldwin, Jr. BALDWIN & BALDWIN P. 0. Drawer 1349 Marshall, Texas 75671 (214) 935-4131 DOW CHEMICAL COMPANY Alan E. Brown RAMEY, FLOCK, HUTCHINS, JEFFUS, CRAWFORD & HARPER, P.C. P. 0. BOX 629 Tyler, Texas 75710 (214) 597-3301 Joseph Ortego RIVKIN, RADLER, DUNNE & BAHY C8 Plstzsi Uniondale, New York 11556-0111 (516) 357-3000 DIAMOND ALKALI CO. CADWALDER, WICKERSHAM & TAFT 138 Mairen Lane New York, New York 10038 MONSANTO COMPANY Richard Grainger GRAINGER, PATTERSON, HOWARD & COLLEY P. O. Box 491 Tyler, Texas 75710 UNIROYAL. INC. David S. Tannenbaum SHEA & GOULD 330 Madison Ave. 15th Floor New York, New York 10071 HERCULES. INCORPORATED Lloyd R. Cunningham REYNOLDS. ALLEN & COOK, INC. 3000 Allied Bank Plaza 1000 Louisiana Street Houston, Texas 77002-5087 (713) 651-1300 1112 D -U 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION ALLEN PETEET, ET AL (ANN I. GREENHILL, ETC.) VS. DOW CHEMICAL COMPANY, ET AL I I I I NO. M-79-79-CA PLAINTIFF'S SECOND REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT. DOW CHEMICAL COMPANY TO: DOW CHEMICAL COMPANY by and through its attorneys of record, Mr. Joseph J. Ortego, Rivkin, Radler, Dunne & Bayh, EAB Plaza, Uniondale, New York 11556-0111 and Mr. Alan Brown, P. 0. Box 629, Tyler, Texas 75710 PLEASE TAKE NOTICE that Plaintiff, by and through her attorney of record, hereby requests that Defendant, Dow Chemical Company (hereinafter referred to as "Dow"), answer in writing and under oath, in accordance with the Federal Rules of Civil Procedure, the following requests for production of documents and provide copies of such documents within thirty (30) days of service thereof: REQUEST FOR PRODUCTION NO. 1: That certain report, document or writing made by or to a Mr. K. L. Krummel relating to organic chemical research, inquiries or investigations in connection with the formation of and/or manufacturing of 2,4-D, dated approximately October 27, 1978. JN 1 4 ion 1113 0-U 3 , REQUEST FOR PRODUCTION NO. 2: That certain report, document or writing made by or to a Mr. K. L. Krummel relating to organic chemical research, inquiries or investigations in connection with the formation of and/or manufacturing of 2,4-D, dated approximately 1978. Respectfully submitted BALDWIN & BALDWIN P. 0. Drawer 1349 Marshall, Texas 75671 (214) 935-4131 State Bar No. 01623800 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing Second Request for Production of Documents has been forwarded by U. S. Mail, Certified, Return Receipt Requested, to MR. JOSEPH J. ORTEGO and MR. ALAN BROWN at the above address and by regular U. S. Mail to all other attorneys of record as shown on the attached service list this the ______ day of June, 1987. 2 1 114 D-i/37 SERVICE LIST ALLEN PETEET, ET AL (JAMES EDWARD GREENHILL) VS. DOW CHEMICAL COMPANY, ET AL; Cause No. M-79-79-CA; In the United States District Court for the Eastern District of Texas, Marshall Division PLAINTIFF. JAMES EDWARD GREENHILL Scott Baldwin, Jr. BALDWIN & BALDWIN P. 0. Drawer 1349 Marshall, Texas 75671 (214) 935-4131 DOW CHEMICAL COMPANY Alan E. Brown RAMEY, FLOCK, HUTCHINS, JEFFUS, CRAWFORD & HARPER, P.C. P. O. Box 629 Tyler, Texas 75710 (214) 597-3301 Joseph Ortego RIVKIN, RADLER, DUNNE & BAHY EAB Plaza Uniondale, New York 11556-0111 (516) 357-3000 DIAMOND ALKALI CO. CADWALDER, WICKERSHAM & TAFT 138 Mairen Lane New York, New York 10038 MONSANTO COMPANY Richard Grainger GRAINGER, PATTERSON, HOWARD & COLLEY P. O. Box 491 Tyler, Texas 75710 UNIROYAL. INC. David S. Tannenbaum SHEA & GOULD 330 Madison Ave. 15th Floor New York, New York 10071 HERCULES. INCORPORATED Lloyd R. Cunningham REYNOLDS. ALLEN & COOK, INC. 3000 Allied Bank Plaza 1000 Louisiana Street Houston, Texas 77002-5087 (713) 651-1300 1115 p -ll3^ * 2 61986 S B Jr- S P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION -------------------------------------- X ALLEN PETEET, et a l ., (James Edward Greenhill), Civil Action M-79-79-CA Plaintiff, -against- DOW CHEMICAL COMPANY et a l ., Defendants. ------------------------------------------------------------------------------------ X DEFENDANT DOW CHEMICAL COMPANY'S FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS TO THE PLAINTIFF_______________ TO: PLAINTIFF, JAMES EDWARD GREENHILL AND HIS ATTORNEYS, Scott Baldwin, BALDWIN & BALDWIN, P.O. Drawer 1394, MARSHALL, TEXAS 75670 PLEASE TAKE NOTICE that the defendant THE DOW CHEMICAL COMPANY ('`Dow"), by and through its attorneys Marjorie H. Mintzer of RIVKIN, RADLER, DUNNE & BAYH, and Alan Brown of Ramey, Flock, Hutchins, Jeffers, Crawford & Harper, hereby request that the plaintiff, JAMES EDWARD GREENHILL, answer in writing and under oath, in accordance with Rules 26, 33 and 34 of the Federal Rules oi -Civil Procedure, the following interrogatories and requests for production of documents within thirty (30) days of service thereof. INSTRUCTIONS FOR USE A. The answers to these, interrogatories a r e to be completed to the best knowledge of plaintiff, his counsel, 1117 M 1 4 1989 ^ <oA investigators, employees or other representatives of plaintiff and plaintiff:s counsel. B. These interrogatories are continuing. To the extent the answers may be enlarged, diminished, or otherwise modified by information that you acquire after the service of your initial answers, Dow requests that you promptly serve supplemental answers reflecting any such changes. Such supplementary responses are to be filed and served upon defendant within thirty (30) days after receipt of such information but not later than the time of trial. C. Where an individual interrogatory calls for an answer which involves more than one part, each part of the answer should be clearly set forth and numbered or lettered to correspond with the appropriate sub-part of the interrogatory. D. The words "and" and "or" shall be construed conjunctively or disjunctively as is necessary to make the interrogatory inclusive rather than exclusive. E. The past tense shall be construed to include the present tense, and visa versa, to make the interrogatory inclusive rather than exclusive. F. The singular shall be construed to include the plural, and visa versa, to make the interrogatory inclusive rather than exclusive. -2 - 1118 DEFINITIONS For purposes of these Interrogatories, the following terms shall have the meanings set forth below. 1. The term "you" shall mean the plaintiff. 2. 'Document" shall mean the following: writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, agardless of whether recorded, produced or reproduced by any mechanical, optical or electronic process, by hand or otherwise. It shall include all originals, copies and drafts of any such documents in your possession, custody or control, or that you know to exist. 3. ''Communication" shall mean any oral or written communication of any kind including, by way of example but not by way of limitation, face-to-face conversations, telephone conversations, letters, meetings, memoranda, or transmittals of documents. It also includes the review, by any person, of documents within the possession, custody, or control of another person. 4. "Person" shall include both the singular and plural and shall include natural persons, corporations, public corporations, partnerships, joint ventures, groups, associations, organizations, municipalities and agencies thereof, states and agencies thereof, the United States of America and agencies thereof, and foreign countries and agencies thereof. 5. "Identify" or "identity" shall mean as follows: -3- a.. When referring to a natural person, it shall mean to set forth the person's full name and the person's last-known home address, business address, employer, job title, and any present or former relationship to any of the parties to this action; b. When referring to other than a natural person, it shall mean to set forth to the fullest extent possible its full name and the last-known address of its principal place of business; and c. When used with-respect to a document,- it shall mean to describe the document with sufficient particularity to form the basis of a request for its production pursuant to Rule 34 of the Federal Rules of Civil Procedure, and to include in the description each of the following; (1) Its date; (2) The identity of the person on whose behalf it purports to have been created; (3) The identity of the person who signed it; (4) The identity of each addressee. -4- ^3 9 INTERROGATORIES INTERROGATORY NO. 1: State your full name, present residence address, present telephone number, and your Social Security Number. INTERROGATORY NO. 2 : Provide your date of birth, place of birth (city, county, state and country), and the exact name appearing on your birth certificate. INTERROGATORY NO. 3 : Please list in chronological order, starting with your current residence, the addresses where you have resided, indicating the approximate dates you resided at each address. INTERROGATORY NO. 4 : Please state if you are single, married, widowed or divorced. INTERROGATORY NO. 5 : If married, give the full name and age of your spouse, her maiden name, and date and place of marriage, and last known address__o_your --spouse- if separated. INTERROGATORY NO. 6 : 9 If you have ever been married to someone other than the person identified in the preceding interrogatory, please list to whom, when and where, for what period of time by dates, and whether the marriage was terminated by death, divorce, annulment, or otherwise. INTERROGATORY NO. 7 : Please identify all of your children: for each child, provide their names, date of birth and present address. INTERROGATORY NO. 8 : State your mother's full name, maiden name, and present residence address, and date and place of her birth. INTERROGATORY NO. 9 ; State your father's full name, present residence address and date and place of his birth. INTERROGATORY NO. 1 0 : State the date and place of your parents' marriage. INTERROGATORY NO. 11: If either parent is deceased, provide age at the time of death, and identify the injury, illness or other medical condition that was the cause of death. -6- INTERROGATORY NO. 12: Identify all other illnesses, injuries or other medical conditions each parent has had. INTERROGATORY NO. 13: State the full names, dates and places of the birth of your full- or half- brothers and sisters. If such brothers or sisters are living, please provide their address. If such brothers or sisters are deceased, provide date of death and identify the illness, injury or medical condition that caused their death. Please identify all illnesses, injuries, or other medical conditions each brother or sister has had. INTERROGATORY NO. 14: State the full names, dates and places of birth of your mother's parents and your father's parents, and as to each provide the following information: (a) Is that person still living? (b) If living, please provide present address; (c) If that person is deceased, please provide age at the time of death, and identify the injury, illness or other medical condition that was the cause of death; and (d) As to each person identified above, identify all illnesses, injuries or other medical conditions each has had. INTERROGATORY NO. 15: --7 -- 1123 0 <! State the full names, dates and places of birth of your mother's siblings and your father's siblings, and as to each provide the following information: (a) Is that person living; (b) If living, provide present address; (c) If deceased, provide age at the time of death, and identify the injury, illness or other medical condition that was the cause of death; and (d) Identify all other illnesses, injuries or other medical conditions suffered by each individual identified above. INTERROGATORY NO. 16: If you are currently married, please state the employment and business occupation of your present .spouse, the name of the place employed, and the name used by your spouse at such employment or business. INTERROGATORY NO. 17: If your present spouse is unemployed, please state the most recent employment and business occupation of your present spouse, the name and address of the last place she was employed, and the reason she left such employment. INTERROGATORY NO. 18: -8 - If you were married at the time you received the injuries alleged in this action, please provide the name of your spouse and her business occupation and place of employment at the time of the occurrence. INTERROGATORY NO. 1 9 ; Did you graduate from high school? if so, identify the high school and provide the date of graduation. If you did not graduate, identify the high school you attended and the grade level you had achieved when you left high school'. ~ INTERROGATORY NO. 2 0 : Have you received my technical or vocational training? If so, identify the schools you attended and provide the dates you received any such training, and the course of training received. INTERROGATORY NO. 2 1 : Did you attend college? If so, identify the colleges you attended, the dates you attended and any degrees you received. INTERROGATORY NO. 2 2 : ---- Are you presently unemployed? If so, please state: (a) The last length of time in weeks or months that you have been unemployed; -9 - (b) The reason for your being unemployed; (c) The amount of all unemployment benefits which you are receiving or have received; (d) The amount of any disability benefits that you have received or are receiving; (e) The addressed of the unemployment center for which you received benefits including telephone number; and (f) The address of the entity that pays any disability benefits. INTERROGATORY NO. 2 3 : Are you presently employed? If so, please state: (a) The name and address of your employer including the number, street, city or town and telephone number; (b) The nature of the work you do; -- (c) The length and time of years you have been so employed; and (d) Your annual earnings. INTERROGATORY NO. 2 4 ; Please state the name, address and telephone of every employer, full-time or part-time, that you have been employed by. For each employer, please state: (a) The type of work you did; (b) The name of your immediate supervisor at each place of employment; -10- 1126 (c) The rate of compensation per week; and (d) State the reasons for terminating work at the stated place. INTERROGATORY NO. 2 5 : For each employment you have had, including self-employment, please state whether you were required to participate in any health monitoring programs and, if so, describe the type of monitoring used, the tests performed, the reasons for the program and the dates of participation in the program. INTERROGATORY NO. 2 6 ; Please state whether you have ever been convicted of a felony or a misdemeanor. If so, describe the offense(s> and when and where committed and under what name or names you were convicted, and when and in what city, county and state. INTERROGATORY NO. 2 7 ; Have you ever made a claim (Worker's Compensation Claim or any other disability claim, formal or informal claim to employer, insurer or insuror or lawsuit) for personal injuries other them injuries in the present matter. INTERROGATORY NO/ 28: -11- 1127 If your answer to the preceding interrogatory is i n the affirmative, please state: (a) The nature of such injury or injuries; (b) The date when each such injury or injuries were sustained in each instance; (c) The place of occurrences; (d) The nature of the incident or accident causing the injury described; (e) The names and addresses of all persons and companies to whom said claim was made; and (f) The dates when such claims were made. INTERROGATORY NO. 2 9 : Have you ever filed an action or proceeding in any court, commission or other agency for personal injuries or illnesses other than in the present matter? INTERROGATORY NO. 3 0 ; If your answer to the preceding interrogatory above i s in the affirmative, please state: (a) The date or dates of filing of each such action or proceeding; (b) The title or name of the court, commission, agency or place where filed; (c) The address of the same and the official number given to it; -1 2 - 1128 (d) Identify against whom the acts or proceedings were brought; (e) The date when such injury or injuries were sustained in each instance; (f) The place of occurrence; and (g) The nature of the incident or accident causing the injuries sustained. INTERROGATORY NO. 3 1 ; With respect to any prior or subsequent claim or lawsuit for personal injuries, please give the names, addresses and telephone numbers of all doctors who treated you for the injuries upon which the claim or action was brought, as well as the names of all hospitals, clinics or related institutions at which you were treated or confined. INTERROGATORY NO. 3 2 : Have you-ever applied for and been rejected from any life, health or disability insurance? If so, please provide the date you were rejected and identify the insurance company. INTERROGATORY NO. 3 3 : Have you ever been a member of the armed forces? If so, state: a) On what date you were inducted into the military service; -13- 1129 -:b) c) d) e) f) g) Where you were inducted into the military service; Identify the branch of service? Were you drafted or did you enlist; Provide your military serial number; Provide the date of your discharge; and The type of discharge you received. INTERROGATORY NO. 3 4 : State whether during your military service (including training and reserve duty) you were ever exposed to any chemicals, biological warfare agents, pesticides or herbicides, and if you were exposed, briefly describe the circumstances. INTERROGATORY NO. 3 5 : If you received any injuries of any nature whatsoever as a result of the incident or occurrence which gives rise to the -present action of which you, your attorney or your doctors were aware or suspect, please list and describe each in specific detail, giving the exact location within or upon your body of all of your injuries and the nature of your complaints (whether physical, dental, emotional, nervous, mental or psychological). INTERROGATORY NO. 3 6 : If you have completely recovered from each injury or complaint listed in your answer to the preceding interrogatory -14- 1130 O-'1 please state the date you recovered from each such injury and complaint. INTERROGATORY NO. 3 7 : If you have not fully recovered from any injury or complaint listed in your answer to the preceding interrogatory, identify each of which you now complain. INTERROGATORY NO. 3 8 : List separately all of your present disabilities and complaints (whether objective or subjective), the frequency and duration of your complaints of pain, etc., the location and degree of any limitations of motion you now have, and a detailed description of any scars you may have at the present time, which you attribute to the subject incident. INTERROGATORY NO. 3 9 : Separately list and describe each of your claimed permanent disabilities. INTERROGATORY NO. 4 0 : If you claim any permanent scars, disfigurement or other cosmetic defects, present or potential, as a result of the occurrence, please state: (a) A complete description of the area of your body affected; (b) The approximate dimension of the area; and (c) The name and address of any person who has taken any photographs showing the injury and when taken. INTERROGATORY NO. 4 1 ; If, as a result of any injuries sustained in the subject incident, you were unable to perform any of your normal and usual functions, duties or activities, of whatever nature at any time since the incident, please state: (a) Each such function, duty, and/or activity you were unable to perform; (b) The inclusive periods of time, from date to date, that you were unable to perform each such function, duty and/or activity; and (c) The activities you are unable to perform and the inclusive periods of time, from date to date, that you were unable to perform each function, duty and/or activity. INTERROGATORY NO. 4 2 : Please state each and every date on which you were examined or treated by any doctor, physician or medical practitioner with respect to any injury, illness or disability which you claim to have sustained or suffered as a--result--of-the subject incident.. Please set forth in detail as to each such examination or treatment: -16- 1132 0-u^ -'-(a) The names, address and telephone number of such doctor, physician or medical practitioner; (b) The nature and extent of the examination or treatment received from such such doctor, physician or medical practitioner; (c) The diagnosis and prognosis made by each such doctor, physician or medical practitioner giving the date of each; and (d) The amount of the charge made to you or to some other person or organization for your account by each doctor, physician or medical practitioner fully itemized as indicated in a bill rendered thereof. INTERROGATORY NO. 4 3 : If, as a result of any injuries received by you in the alleged occurrence you only consulted a doctor, please state; (a) The date of the first consultation you received from- any doctor after the occurrence ; (b) The name and address of each doctor who you consulted with; (c) The number of examinations or consultations with each doctor; (d) The approximate date of the .last consultation with each doctor; "V*; (e) The nature and extent of any examination with each doctor; and -17- 1133 (f) The diagnosis and prognosis of each consultant. INTERROGATORY NO. 4 4 : Please give, as best you can, the substance of all advice or instructions given to you by any physician, relative to your care, treatment and condition on each respective date in which he or she saw, treated, examined or operated upon you. INTERROGATORY NO. 4 5 : What was the date of your last appointment with a physician, treating you for injuries from the alleged incident? INTERROGATORY NO. 4 6 : Please state each and every date on which you were examined, treated or cared for while an in-patient or out-patient at any hospital, clinic or other institution for any injury or disability which you claimed to have suffered or sustained as a result of the alleged occurrence, setting forth in detail as to each date of examination, treatment or,care: (a) The name .and address of each such hospital, clinic or other institution? (b) The nature and extent of such examination, treatment or care you received at each clinic, hospital and institution; -18- 1134 (-c) The name, address and telephone number of the doctor, physician, or medical practitioner who referred you to the hospital, clinic or institution; (d) The inclusive dates of any period of confinement with respect to any examination, treatment or care at any such hospital, clinic or institution; and (e) The amount charged to you by each hospital, clinic or other institution fully itemized as indicated in the bill rendered thereof. INTERROGATORY NO. 4 7 : Were X-rays taken of your body in connection with the diagnosis or the treatment of any injury, illness or disability arising out of the subject incident? If so, please set forth; (a) When, where and by whom the X-rays were" taken; (b) The name of the person, hospital, clinic or other institution now in possession of each such X-ray; (c) The illness, injury or disability with respect to which each X-ray was taken; and (d) The results including any diagnosis of each X-ray. INTERROGATORY NO. 4 8 : Have you received any nursing or other medical attention as a result of the injuries you received in the subject incident that you have not already listed? If so, please state complete details. 1135 v -19- INTERROGATORY NO. 49; Describe any surgery performed upon you as a result of any injuries received in the subject incident, when and where performed, and by what doctor or doctors. INTERROGATORY NO. 50: If any future surgeries are contemplated, whether imminent or remote, please state what surgeries are contemplated and for what ailment or injury. INTERROGATORY NO. 5 1 ; If future surgeries are contemplated, whether imminent or remote, please state when such surgery will be performed, by whom such surgery will be performed and where such surgery will be performed. INTERROGATORY NO. 5 2 : At this time, are you still being treated, examined, or attended by any doctor, physician, therapist or other medical or physical practitioner, and if so, please state for what specified injuries^,, conditions or complaints each such individual is treating you. INTERROGATORY NO. 53; If you are not at this time still being treated or periodically examined by any doctor, therapist or other medical practitioner, when were you last treated, and when were you last examined and by whom? INTERROGATORY NO. 5 4 : Please provide the name and address of your family doctor at the time of the alleged subject exposure. INTERROGATORY NO. 55: Have any of the doctors, therapists or other medical practitioners who have attended, operated, treated, consulted or merely examined you made written reports to you, your attorney, your employer, any insurance carrier, any governmental agency, or to anyone else acting in your behalf relating to the injuries or complications from injuries which you claim to have sustained as a result of the subject incident? INTERROGATORY NO. 56; -- ------ Ii your answer to the preceding interrogatory above is in the affirmative, please identify and produce each such report. Please provide: (a) The date of each such report; (b) The addressee of each such report; (c) The name, address, and telephone number of each physician making any such report; and (d) The name, address, and telephone number of the custodian of each report. 1137 INTERROGATORY NO. 57: If any doctor has advised you or your attorney, or anyone acting in or on your behalf as to the diagnosis of any of your injuries, please state the diagnosis made of each injury and the name and address of the doctor or medical practitioner making the diagnosis and the date thereof. Please identify and produce any such written diagnosis. INTERROGATORY NO. 5 8 : If any doctor or medical practitioner has advised you or your attorney, or anyone acting in or on your behalf as to the prognosis of your injuries, please state what the prognosis is as to each injury, and whether temporary or permanent, and the name and address of the doctor or medical practitioner making the prognosis, and the date thereof. Please identify and produce any such written prognosis. INTERROGATORY NO. 5 9 : Do you, or does anyone acting on your behalf, contend, allege or assert that a condition or disability which you had, prior to any alleged exposure to Dow's product (whether a prior illness, disease, injury, or a mental, nervous or psychological condition) was aggravated or made worse by the alleged exposure to Dow's product? INTERROGATORY NO. 60: -22- fl _:If you contend some prior existing condition was aggravated, then please state: (a) Each and every act upon which you base this contention; (b) The name, address and telephone number of each and every person that has personal knowledge of this contention or the facts listed in the preceding subsection above; (c) Identify with sufficient specificity to support a request for production or subpoena duces tecum any document or evidence which' supports this 'contention or the facts in subsection (c) above; (d) Please state the name, address, telephone number and job title of the current custodian of records for each and every document or item of physical evidence identified in subsection (c) above; and (e) Please produce all documents identified above. INTERROGATORY NO. 6 1 : If, as a result of any injury in the subject incident, any doctor gave you a temporary or permanent disability rating, please state the name and address of the doctor, what the rating covers, when the rating was made, the percentage of the rating given, and the reason the rating was given. INTERROGATORY NO. 62: 1139 -23- Prior to the date of the subject incident, have you suffered any type of personal injury, illness or physical complaint? INTERROGATORY NO. 63: If your answer to the preceding interrogatory is in the affirmative, please state: (a) All such prior injuries, illnesses, complaints and symptoms; (b) The areas of the'body that they are related to; (c) The dates for such illnesses, injuries and complaints; (d) The causes of such illnesses, injuries and compl aints; and (e) The date or dates when such injuries, illnesses, complaints and/or symptoms were no longer noticed. (f) The nature of the medical treatment, if any, received for such prior illnesses, injuries, complaints and symptoms; (g) When and where such treatment was received and the names and addresses of all persons giving same including hospitalization; and (h) Describe fully and in detail any accident or occurrence that gave rise to each of these injuries, complaints or illnesses giving the dates of such accident or occurrence, where it occurred and the nature of the event. -24- INTERROGATORY NO. 6 4 : Subsequent to the date of the accident or occurrence which gives rise to the present action, have you suffered any other accidents or occurrences giving rise to any other injuries, illnesses or complaints or aggravations of any pre-existing injuries or conditions? INTERROGATORY NO. 6 5 : If your answer to the preceding interrogatory is in the affirmative, please state: (a) All such subsequent injuries, illnesses, complaints and symptoms; (b) The area or areas of your body they are related to; (c) The dates for such illnesses, injuries and complaints; (d) The causes of such illnesses, injuries and complaints; (e) The date or dates when such illnesses, injuries, complaints and/or symptoms were no longer noticed; (f) The nature of the medical treatment, if any, received for each such prior illness, injury and/or complaint; (g) When and where said treatment was received; (h) The names and addresses of all persons giving said treatment, including all hospitalization; and -25- 1141 9-1 (i) Described fully and in detail each accident or occurrence that gave rise to each of these injuries, complaints and/or illnesses giving the dates of such accident or occurrence, where it occurred and the nature of the event. ^ INTERROGATORY NO. 66: Have you been examined, treated or cared for by a doctor, medical practitioner of any sort, or any hospitals, sanitariums, rest homes or related institutions for any cause or condition whatsoever other than those already listed? (This question is intended to and does, include examinations for life insurance or other insurance purposes, examinations at place of employment or on behalf of an employer, and any and all examinations and treatment.) '~ ' INTERROGATORY NO. 6 7 : If your answer to the preceding interrogatory is in the affirmative, please state: (a) The name and address of each doctor, medical practitioner, hospital, sanitarium., rest home or related institution by whom you were treated or examined or in which you were treated, examined or confined, stating the dates of treatment, admission, and discharge; -26- 1142/ .(b) The purpose for which you were examined, treated or cared for, and the nature of such examinations, treatment and care ; and (c) The names and addresses of any firm, person or corporation at whose request you were treated or examined, or, if done at your own instance, so state. INTERROGATORY NO. 68: List the name, address and medical field of every "medical practitioner who has seen, treated or examined you since your birth. INTERROGATORY NO. 6 9 : If you have (or know of the existence of) any communications, medical report(s) , letter(s) , writing ('s) or memoranda from any of the doctors listed above relating to your condition, state as to each: (1) Its nature, author and date. (2) Its present location. (3) Please produce all records of such communications. INTERROGATORY NO. 7 0 : In connection with your claim for medical, dental and other expenses, are there any expenses for which you have already received bills? -27- INTERROGATORY NO. 71: If your answer to the preceding interrogatory above is in the affirmative, please list the amount of each bill, the date, and items charged, the dates on which services were rendered, and the name and address of the person or firm that rendered or supplied the same with regard to each: (a) Doctor, therapist or other practitioner; (b) Dentist; (c) Hospital, clinic, sanitarium, rest home or institution; (d) Psychologist or psychiatrist; (e) Purchase or rental of an orthopedic device, appliance, prosthesis, crutch, hospital supply and eguipment and if rented, the period of time so rented, identifying and describing what each item was for and for the "period of time actually used; (f) Ambulance service; (g) Drugs, medicines and medical supplies, and when and where said drugs, medical supplies and Medicines were purchased; (h) Nursing care, giving the inclusive periods, from date to date, and the shifts and indicating whether the care was by a registered or practical nurse, and the name and address of each nurse; (i) Household help and household services, including the nature of the work, the frequency supplied, the -28- inclusive period of time from date to date such work or services were furnished, and the name and address of each such person or firm rendering such services, and their relationship to you, if any; and (j) Any medical expenses not already listed in your answers may be attached to supply portions of your answers if in sufficient detail. INTERROGATORY NO. 7 2 : Have any or all of the medical bills or other expenses referred to in your responses to the two preceding interrogatories above been paid? INTERROGATORY NO. 73r If your answer to the preceding interrogatory -above is in the affirmative, please list the expenses which have been paid in full or the amounts of each paid in part. INTERROGATORY NO. 7 4 ; If any of the expenses referred to in your answer to interrogatory number 64 above, has been paid, by whom was it paid? INTERROGATORY N O 75 ; Please list those bills that are unpaid as of the date of answering these interrogatories. -29- 1145 O-iife? INTERROGATORY NO. 76: If there are obligations for medical or other expenses for which you have not as yet received a bill, please describe which ones, what for, the names and addresses of the person(s) or entity rendering the care. INTERROGATORY NO. 7 7 : Are you or were you required to wear or use any support, cane, cast, brace, prosthesis, or other device or garment as a result of the injuries, illnesses or disabilities claimed to have been suffered or sustained by you as a result of the subject incident. If so, please state: (a) A complete description of each such support, cane, cast, brace, prosthesis or other device or garment; (b) The name, address and telephone number of the person from whom the devices described above were purchased or rented; (c) The costs thereof; (d) The period during which you were required to wear or use the above-described devices; and (e) The name., address and telephone number of the physician or medical practitioner prescribing the use of the described devices. INTERROGATORY NO. 78: -30- O -ilt'i Since the alleged occurrence, have you undergone or received any treatment for mental or emotional disturbance? If so, please state: (a) The nature and extent of any such treatment; (b) The name, address and telephone number of each doctor, physician, or medical practitioner treating you; (c) All diagnosis made concerning any such condition, giving the dates of each diagnosis; (d) All prognosis made concerning any such condition, giving the dates of each prognosis; and (e) The dates of any such treatment. INTERROGATORY NO. 7 9 : If, as a result of the subject incident, you allege a loss of any time from any occupation or employment, -please state the total earnings from your work you received at that occupation or employment during the year preceding the alleged incident. Please give your answer in weekly or monthly Increments. INTERROGATORY NO. 8 0 : Please state your total income from all wages, fringe benefits, profit sharing or any other income for the five-year period preceding the subject incident. Please break down your answer per year. INTERROGATORY NO. 8 1 : -31- 1147 P-11'70 If you have received any wages, raises, salaries or income, since the alleged occurrence, please state: (a) The nature of such income; (b) The entity paying such income; and (c) For what the income^ was paid. INTERROGATORY NO. 8 2 : If you are claiming a loss of earnings, please state: (a) The inclusive dates during which you were unable to work as a.result of the alleged occurrence; (b) The total amount of earnings which you lost as a result of your absence; (c) The nature of the employment you were unable to do or attend; and (d) The name and address of your employer or.your place of business. INTERROGATORY NO. 8 3 : Are you claiming any loss of future earning capacity? If so, please state: (a) The nature of work, duties, profession you re unable to perform; (b) Specifically state what medical, physical or mental infirmity keeps you from completing or performing the task listed in subsection (a) above; -32- 1148 (c) Specifically state how the infirmities listed above keep you from completing or performing the tasks listed in subsection (a); and (d) Please estimate your financial loss and basis for arriving at your figure. INTERROGATORY NO. 8 4 : Please indicate by circling from the following list any and all medications (prescription or non-prescription) that you have taken during your lifetime -and for each and'every said medication, separately set forth the amount, duration and frequency of administration. Antibiotics (penicillin, ampicillin, E.E.S. Kelfex, Ceclor, cephalosporins, erythromycin, tetracycline, gentamicin, garamycin,-tobrex, neomycin, streptomycin, amikacin, tobramycin, Chloromycetin, chloramphenicol, oxacillin, dicloxacillin, clindamycin, Cleocin* lincomycin, Lincocin, sulfa drugs, Bactrim, Septra, Gantrisin, Gantanol, etc.) Analgesics (aspirin, APC, Bufferin, Empirin, Excedrin, Tylenol, acetaminophin, Fiorinal, Darvon, Darvocet, codeine and codeine containing products, Phenophen, Demerol, Percodan, Percocet, Dilaudid, Motrin, ibuprofen, Tolectin, Naprosyn, -33- 1149 D - ' 1^ Anapro, Zomax, Orphenidrin, morphine, heroin, Anacin, Datril, etc.) Anti-fungal drucrs including drugs for ring worm, athlete's foot, jock itch or crotch infections (gentian violet, griseofulvin, Fulvicin, Micatin, Tinactin, Vioform, etc.) Anti-tuburcular medicines (Rifampin, INH (isoniazid) , ethambutol, etc.) Blood pressure medicine (Aldomet, Minipess, hydralazine, Apresoline, reserpine, Lopressor, Serpasil, Ser-ap-es, Aldoril, water pills, Diuril, Hydrodiuril, Esidrex, hydrochlorothiazide, Diazide, Lasix, furosemide, Catapres, clonidine, guanethidine, etc.) Sedative/anti-anxiety drugs (Valium, Serax, Librium, Centrax, Ativan, Doriden, Quaalude, Parest, methaqualone, Dalmane, chloral hydrate, Seconal, seconbarbital, Nembutal, pentobarbital, Amytal, amobarbital, Butibel, Miltovn, _ meprobamate, Placidyl, phnobarbital, other barb iturate s , etc .) -3 4 - 1150 Ji Anti-diabetic medicines (insulin, Orinase, Tolinase, Diabenese, Dymelor, etc.) Vitamins, minerals or drugs for anemia Antidepressants (Elavil, imipramine, amitriptyline, Tofranil, lithium Limbitrol, Eskalith, Sinequan, Triavil, Parnate, Nardil, Marplan, Norpramin, etc.) Neuroleptics (Thorazine, chlorpromazine, Haldol, Stelazine, Trilafon, Sparine, Compazine, Mellaril, Prolixin, Navane, M o b a n , Loxitan, e t c .) Steroids (prednisone, prednisolone,"Medrol, Hexadrol, Decadron, Aristocort, etc.) Thyroid medicine (.propythiouracil, Cytomel, thyroid, Thyrolar, iodine, etc.) Muscle relaxants (Soma, Rela, Robaxin, Robaxisol, Parafon forte, Flexeril, etc.) Migraine medicines ' ergotrate, etc.) (Fiorinal, Caffergot, -35- Heart medicines (digoxin, Lanoxin, digitoxin, Procardia, quinidine, Pronestyl, Inderal, nitroglycerin, Isordil, etc.) Antieoileptics (phnobarbital, Dilantin, Mysoline, Tegretal, Primidone, etc.) Respiratory drugs (theophyllin, Theo-dur, aminophyllin, Primatine, cromolyn, Intal, Isuprel, epinephrine, Ventolin, Beclovent, Alupent, Metaprel, Brethine, Bricanyl, Brondecon, Bronkadyl, Slophyllin, Threobid, Theolair, Chloledyl, etc.) Allergy medicines (antihistamines, e t c .y Cold Medicines Cough Svrups Antacids Antidiarrheals (Lomotil, Kaopectate, etc.) Laxatives or stool softeners 1152 Anti-cancer drugs Drugs for worms Cleaners, lotions and shampoo for lice (Kwell, lindane, etc.) Anti-ulcer medicines (Tagamet, Librax, Milpath, etc.) Anv and all other medications fprescription or non prescription). INTERROGATORY WO. 8 5 : -- .. - The following table sets forth a list of various drugs, medications, controlled substances and other compounds. Check off each compound ever used by y o u which, you .did. not receive from a health care professional. In the spaces provided below, give the requested information for each compound that you checked off. If you do not know the name of a compound, describe its physical appearance (color, shape and size of pill) and list any "street names" for it. [ ] Opiates or Narcotic Analgesics [ ] Heroin -37- 1153 M i'lk [ ] Opium [ ] Morphine [ ] Codeine [ ] Meperidine [ ] Methadone [ ] Pentazocine [ ] Others Specify: [ ] Central Nervous System Depressants ("Downs") [ ] Barbituates [] Amobarbital [ ] Penobarbital (Nembutal, "Yellows") [ ] Secobarbital (Seconal, "Reds") [ ] Amobarbital and Secobarbital ("Double Trouble") [ ] Other Hypnotics [ ] Gluethimide (Doriden) [ ] Methyprylon (Noludar) [ ] Methagualone (Quaalude) [ ] Tranquilizers [ ] Diazepan (Valium) [ ] Chlordiazepoxide (Librium) [ ] Amitraptyline (Elavil) [ ] Bromides -38- 1154 O'U''1 5 [ ] Others Specify: [ ] Central Nervous System Stimulants ("Uppers") [ ] Amphetamines [ ] Methamphetamine ("Speed," "Crystal," "Meth") [ ] Dextroamphetamine [ ] Cocaine [ ] Methylphenidate (Ritalin) [ ] Phenmetrazins (Preludin) ( ] Diethylpropion (Tepanil) [ ] Others Specify: _______________ [ ] Cannabis [ ] Marijuana [ ] Hashish [ ] Psychedelics (Hallucinogens) [ ] Lysergic Acid Diethylamide (LSD, "Acid") [ ] Psilocybin ("Magic Mushrooms") [ ] Dimethyltryptamine (DMT) [ ] Diethyltryptamine (DET) [ ] Mescaline [ ] 2, 5-dimethoxy-4-methylamphetamine -39- 1155 (DOM, "STP") [ ] Phencyclidine ("Angel Dust," "POP") [ ] "Herbal Teas" or Leaves Containing Atropine, Hyoscyamine or Scopolamine [ ] Others Specify: __________________ [ ] Miscellaneous Inhalants [ ] Nitrous Oxide ("Laughing Gas") [ ] Amyl Nitrite ("Amies," "Popper") [ ] Halothane [ ] Glue [ ] Aerosol Sprays Containing Fluorocarbon Propellants [ ] Others Specify: ________________ ~ [ ] Other Drugs, Medications or Controlled Substances Specify: _______________________________________ INTERROGATORY NO. 86: ----- Have you ever received any medical treatment or counseling in connection with your use of any of the drugs, -40- 1156 p-Hli medications, controlled substances or other compounds which you have identified in your answer to Interrogatory No. 85? [ ] Yes [ ] No If your answer is yes, identify the individual who provided the treatment or counseling, the dates of treatment and identify the drug you were using. INTERROGATORY NO. 87: Have you ever taken an overdose, whether by accident or otherwise, of any of the drugs, medications, controlled substances or other compounds which you have identified in your answer to Interrogatory No, 84 or No. 85? INTERROGATORY NO. 88: " If your answer to the preceding interrogatory is yes: (a) Identify the drug; __ (b) Provide the -amount taken; (c) Provide the date of the overdose; and (d) Identify treating physician or other health care professional who adminstered care. INTERROGATORY NO. 89: Do you now, or have you ever smoked cigarettes, cigars, used pipe tobacco, chewing tobacco or snuff? -41 1157 o-u If so, specify the time period during which you smoked, or used the tobacco product, and the amount of each product used during each of those time periods. INTERROGATORY NO. 90: Do you now, or have you ever consumed alcohol? If so, specify the time period during which you consumed the alcohol, and the approximate amount of alcohol consumed during each of those time periods. INTERROGATORY NO. 91: Has any physician or other health care professional ever advised you to stop, reduce or otherwise modify your consumption of alcohol? [ ] Yes - [ ] No If your answer is yes: (a) Identify the individual who provided the advice; (b) Provide the date the advice was provided; (c) Describe the advice that you received; and (d) Provide the reasons given for this advice. INTERROGATORY NO. 92: Have you ever been treated for acne or rashes? If your answer is yes: (a) Identify the individual who provided treatment; -42- 1158 _.(b) The dates treatment was provided; (c) Where on your body the acne or rash was located; and (d) Identify any products used to treat these conditions. INTERROGATORY NO. 93: Have you ever consumed raw or non-pasteurized milk? If so, please provide approximate dates and amount consumed. INTERROGATORY NO. 94: Have you used insect repellants? If so, identify each repellant that you used and provide dates of use. INTERROGATORY NO. 95: ' From the following list, please check any and all chemicals you may have contacted during your lifetime and indicate the date, place and circumstances of said contact? [ ] Acids [ ] Acrolein [ 3 Alkalies or caustics [ 3 4-Aminobiphenyl [ 3 Ammonia [ 3 Anesthetics (Including Nitrous Oxide, Halothane, Methoxyflurane, Trichloroethylene and Enflurance) [ 3 Aniline -43- 1159 [ ] Arsenic [ ] Asbestos [ ] Asphalt [ ] Atomic (Ionizing) Radiation [ ] Auramine [ ] Barium [ ] Benzene [ ] Benzpyrene [ ] Beryllium [ ] Borax [ ] Boron [ ] cadmium [ ] Carbon Black [ ] Carbon Tetrachloride [ ] Ceramic Dust [ ] Chemical Dusts [ ] Chlordane [ ] Chlorine [ ] Chloroform [ ) Chloroprene [ ] Chromium compounds [ ] Cleaning Fluids (solvents) [ 3 Coal Dust [ 3 Coal Tar [ 3 Cobalt [ 3 Coke Oven Emissions -44- 1160 [ ] Cotton Dust [ ] Creosote [ ] Degreasing Solvents [ ] DDT [ ] DDVP (0,0-dimthyl-2, 2-dichloro-vinyl phosphate) [ ] Dieldrin [ ] Dusty Work Atmosphere [ ] Dye Chemicals [ ] Ethane [ ] Ether [ ] Ethylene [ ] Exhaust Fumes [ ] Fibrous Glass/Rock Wool [ ] Fluorides [ ] Formaldehyde [ ] HCDD [ ] Heat (Extreme) [ ] Heptachlor [ ] Herbicide Chemicals [ ] Hydrazine [ ] Hydrochloric Acid [ ) Insulation Materials [ ] Iron Oxide [ ] Irritating Gases [ ] Irritating Fumes or Mists [ ] Kepone -45- 1161 [ ] Lasers [ ] Lead [ ] Lindane [ ] Machine Oil/Cutting Oil [ ] Manganese [ ] Mercury [ ] Metal Dust [ ] Metal Fmes [ ] Methoxychlor [ ] Microwave Radiation [ ] Mineral Dusts (Diatoxnaceous Earth, Vermiculite, Perlite) [ ] Molecular Sieve or Filter, Filler [ ] Mineral Spirits [ ] Mining [ ] Mirex [ 3 Naphthylamine [ 3 Nickel [ ] Nitrosamines [ 3 Noise (Extreme) [ 3 OCDD [ 3 Ozone [ ] Paints [ 3 Pentachlorophenol [ 3 Pesticide Chemicals [ 3 Petroleum Distillates -46- 1162 p-||?b [ ] PCB's (polychlorinated biphenyls) [ ] p-dichloro-benzene [ ] Picloram [ ] Phenol ( ] Phosphoric Acid [ ] Pitch ( ] Plastics/Resins [ ] Polybrominated Biphenyls (PPB and Tris BP) [ ] Propane [_ ] Radioactive materials or dust [ ] Radium or Radon [ ] Selenium [ ] Silica or Quartz [ ] Solvents or Cleaning Fluids [ ] Sugar Cane -- [ ] Talc Dust [ ] 2,3,7,8 Tetrachlorodibenzo-p-dioxin (TCDD) [ ] Tellurium [ ] Tetraethyl or tetramethyl lead [ ] Textile Dusts [ ] Titanium [ ] Toluene [ ] Tramsformer fluid/Capacitor fluid [ ] Uranium [ ] Urea [ ] Urea-formaledehyde foam 1163 D-llSk [ ] Urethane [ ] Vanadium [ ] Vinyl chloride [ ] Welding fumes [ ] Wood Dust [ ] X-rays [ ] Zinc compounds [ ] Other: INTERROGATORY NO. 96: -- - To the extent that your allegations in the Fourth Amended Complaint relate to your alleged exposure to herbicides: (a) Provide the approximate date and time of day of each exposure; (b) Identify, if you can, the herbicides-to.which you were exposed; (c) Explain how you are able to identify the herbicide (s) to which you were exposed.; (d) Describe the circumstances of each exposure; (e) Identify the closest geographical point (town, zone, village, or most specific reference point) to the place you believe you were exposed; (f) State how the herbicide was applied; (g) If you believe you were exposed during a herbicide 1164 loading, unloading, storage, or transport operation, describe the operation and your duties and responsibilities i n connection with it; (h) In what manner do you believe your body was physically exposed to the herbicide; (i) If you believe you were exposed by contact on your skin, identify the areas of skin that came in contact with the herbicide; (j) If you actually saw the herbicide(s), describe its(their) physical characteristics, i.e., color,'thickness, smell, other characteristics; (k) If you had an opportunity to observe the effects of the herbicides on vegetation, describe each effect and state how long after application that effect occured; (l) If other people were present at the-time-you believe you were exposed to the herbicides, state how many people were present, identify them (by name and position) and describe the activities in which they were engaged; (m) If you saw a containers for the herbicides to which you believe you were exposed, describe the containers; (n) What is the basis for your belief that the material you were exposed to was a herbicide; (o) If anyone identified the material to you as a herbicide, identify each such person (by name and position), state when the identification was made, and describe the substance of the identification; and -4 9 - 1165 V~\ (p) Describe any protective clothing you were wearing at the time of each exposure. INTERROGATORY NO. 97: Please identify each and every person who observed or was present in the vicinity of each alleged occurrence or exposure referred to in the preceding Interrogatory. For each alleged incident or exposure, provide: (a) The name, last known address and telephone number of each person known to you; (b) State whether or not such witness gave any statement or account either oral or in writing of his or her knowledge of the alleged incident. If so, please state: (1) The substance of that statement; (2) The name of the person or the ejitity which the witness gave the statement to; (3) The date of giving that statement; and (4) The identity of each and every person who has a copy of any statement presently. INTERROGATORY NO. 98: If known to you or your attorney or any other representative, please state the name and address of any persons: (a) Who actually saw any part of each alleged incident or 'exposure; (b) Was present or near the scene of the incident; C M IS*? (c) Who supervised your work or to whom you reported, at the time of the occurrence or exposure; and (d) Those who have knowledge of any facts pertaining to the cause of action. INTERROGATORY NO. 99; Please state the name, address and telephone number of each and every person including, but not limited to the defendants herein who have been interviewed by you, your attorneys, or your representatives or agents in connection with the occurrence which forms the basis of the present action. INTERROGATORY NO. 100; Please state the date of each interview reported in response to the preceding interrogatory, the location of each such interview, and the person(s) present at such interview. Please include the interviewer, the interviewee and other persons as witnesses to the interview. INTERROGATORY NO. 101: Do you or your attorney, representatives or agents have a signed, recorded court report's statement, or oral statement by. yourself in connection with this litigation? If so, please states (a) The person to whom you gave the statements; -51- (b) Whether the statement is signed, recorded, taken by court reporter or otherwise; (c) The date of the statement; (d) The location where the statement was obtained; (e) The name of the persons present at the time the statement was obtained; and (f) The name, address and telephone number of the person currently holding the original of such statement. INTERROGATORY NO. 102; ....... Have you, your attorneys or the representatives or agents taken or caused to be taken any photographs of the scene of the incident referred to in your complaint, or any object or the thing material to the issues of this case? If so, please state; (a) The subject of each photograph; (b) The number of photographs taken; (c) The date each photograph was taken; (d) The name, address and telephone number of each person taking each photograph identified; and (e) The name, address and telephone number of the person presently having the custody of said photographs. INTERROGATORY NO. 103: - 5 2 - 1168 p-l Wl Did you ever receive any training, instructions, warnings or health and safety information concerning herbicides during your employment by the U.S. forestry service. ! If so, identify all training, instructions, warnings or health and safety information that you received: (a) The dates received; (b) Identify the persons from whom received; (c) Identify the location where the information was received; (d) Identify any and all written information provided, and describe the contents of such written information; and (e) If information was received orally, describe its substance. INTERROGATORY NO. 104: - .. With respect to the allegations contained in the Fourth Amended Original Complaint, please state exactly how Dow's product was "dangerous and defective in nature" and identify .and produce any documentation which supports these contentions or identify the name(s) and address(es) of the custodian(s) of such documentation. INTERROGATORY NO. 105: With respect to the allegation contained in the Fourth Amended Original Complaint that plaintiff suffered "severe and permanent injuries" and is "entitled to exemplary damages," 116fr please state each and every fact which supports said allegations, the name(s) and address(es) of each and every person who has information which supports said allegations; if said person is an expert, please state that person's qualifications and the substance of his opinion and grounds therefor, and each and every document, article, publication (scientific or otherwise), graphs, charts, movies, photographs or tape recordings which supports said allegation and produce all such materials with these answers or identify the name(s) and address(es) of the custodian(s) of such materials. INTERROGATORY NO. 106: Do you allege that Dow violated any trade standard(s), safety standard(s), or local, state or federal government regulation(s) in the sale or process of the herbicide at issue, and if so, please state the exact standard(s) or regulation(s) you allege was (were) violated, and how and in what manner the violation(s) caused or contributed to the injury(ies) in question. INTERROGATORY NO. 107: Please state the names, addresses, official titles, if any, of all witnesses, including expert witnesses, who, it is contemplated, will be called upon to testify in support of your claim in this action,- and for each and every witness separately state : 54- 1170 who prepared each exhibit and the date on which the same was prepared. Dated: Uniondale, New York September 22, 1986 RIVKIN, RADLER, DUNNE & BAYH Attorneys for the DOW CHEMICAL COMPANY By: MARJORIE H. MINTZER, Es<. EAB Plaza Uniondale, New York 11556-0111 (516) 357-3000 RAMEY, FLOCK, HUTCHINS,- JEFFUS, CRAWFORD & HARPER, P.C. Co-Counsel for the DOW CHEMICAL COMPANY By: ALAN BROWN P.0. Box 629 500 First Place Tyler, TX 75710 -56- 1171 P-IW4 Index No. ^ 7 9 - 7 9 CA Year 19 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS: MARSHALL DIVISION ALAN PETEET et al. (James Eduard Greenhill), Plaintiff, V. DOU CHEMICAL COMPANY et al., Def endant. DEFENDANT DOU CHEMICAL COMPANY'S FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS TO THE PLAINTIFF RIVKIN, RADLER, DUNNE & BAYH Attorneysfor Defendant DOU CHEMICAL COMPANY EAB PLAZA UNIONDALE, NEW YORK 11556-0111 (516) 357-3000 003600-00007^0012 To: Attorney(s) for Service of a copy of the within Dated: is hereby adm itted. Attorney(a) for PLEASE TAKE NOTICE that the within is a (certified) true copy of a DUCE C entered in the office of the clerk of the within named Court on ENTRY 19 that an Order of which the within is a true copy will be presented fo r settlement to the Hon. NOTICE OF one of the judges of the within named Court, SETTLEMENT at on 19 , at M. Dated: RIVKIN, RADLER, DUNNE & BAYH Attorneys fo r EAB PLAZA 1172 UNIONDALE, NEW YORK 11556-0111 To: O ' H i b F IL E # ____________ -_____________ ! O i * i l ApftlHtttoi fto. T .......W ^ , ........ _........ ______ ____________ Cj J S 'O tr CM p i (^S U W S L $ U /U ^ c r tJ - ^ ( ^ l S - p Q . ... * ^ ^n > C c p XU C & Z' ^ J ~ ~ ^ Q ^ J ~ - * ` *1428 -1 ;; ; 868 FEDERlEBP)RTBR:MSERIES,: ^! s i i^ ^ 0riA P E E N D I3rt^ n tin u ^ n ;.G r v i J.; cer and fd ied .a fter exposure: ta herbicide . *ito p l# ^ ' n t p ro ted n i^ `:t1iirini| prefer* ;**$< /.'.P9r?P|At- , "^ri(^<an b e iiife t^ d !fttiri theirdeletng- the b ro u g h t, action, against; chemjcal mgnufac* ; 'b ro d rla n g a g ^ n ^ jturer- w hich,had produced h e r b ic id a ilth e ..-. R^elUfivr^Unite^lSt^^64f U.S:M 6, ;rU nitedjSlatesvJ)istrict Court;for, the East-; ; V.--2S-34, 104 S tta t;'8 0 (^ l; iS983)ii , ern, D istrict 6 f Texs, Sani;B. HaD,'Jr.r 3 .,.' !';'^ u s y tii* C br^ ricta^ ffie plaurlah- L ^ te r e d judgm ent on;ju ry verdict awarding :/g a g x tf th e & & d & e r ^ la fi n s'prom-* Xsivivpra $L 5 million itfd a m a g ei andihan- : 'ul&Lted pursuant'' & ie to !im posed'oh*!De- <,:ufactrer Appealed. rTh Court o f A ppls,; fendant a duty to h ire'P lain tiff asW m- ; Sneed, C ircuit Judge, ;sittin g-b y digb^->; i-, -`.p& yee proteeted>pundens-thteAct. n.D nce. 5tion^held that; (l) fa ct tht certified"toxi-.';; 1 hired,'1'J}efendant<ewed-no ^ e t r duty'to cologist w as not specialist m an other j i 'landiff^ th a iilto Qther 'newlyuhired pilots. ;field w enfcto weight,^and not adm issibility, yD efendant hirf^ lI' pilots' for; a 'one year of ;expert's testim ony ;that ;herbicidpitwas t ' fprobationty period^ Collective-Bargaining Jaignificnt, - contiributing; cause o f rcncer 5greem id4 s^ p r rD u m g this'probation- <'alnd!-'datjir'd f;>F o i^ r - S i ^ worker- (2) War:period,,pilqt8f.can'be;tetininated at D.e- -tbxicolbgisC s'filre to pronally exmie Court need -Forest'S em ce w orker;did-not render txi- " i'-.nofcreach: the J8ue >o f w hethet Plaintiff ' eulogist's opinion that exposure to heflji- :waa trnnated fpj ju s t cause-^vin-; cidfe'Was significant] contributing caase o f , i x r v a - v ^ " :fir-ii;.' -!. . worker's 'cncer`.and deth; 'inadmissible; -. !?=cir* - i-.-; ioj.u : : j., and (3) trial court did not abuse its disere- >1 P lain tiff w as law fully .terminated. '.There-;- tion in . denying m tioir'r new '.trTon ' is no ; genuine is s u e o f m ateriaLfact'and ^jagjg-QfjjgYrly discovered evidenceconsist^ efp n d a n tip ;.entitled.to jndgmentas^a,-mate' "jug o f tbxicoldgist's. allegedly false testuna- A ccordingly, Defendant's Mov t^ny a t trial that he did not know a man who fA n f f Q n m m o in r T ii^ ir m o n t ia llT ? A W T l? n . r ' . _ \ ' . r r - y '''^ (o I nr numi swum^ V " - ; - '*' V 555.1"d?nfe ^k '-' ' k ^V>a"'S.!r.i.`.-i,- ch. ; A v r - i i * t i v * - g ,*- .t Cm.: ........................................................ " * *" *" cj \ m - ^^.^/.^JDespite broad.'discretion o f trit court - '.cC ife ,.p adm itting or excluding expert evidence, ,ef k>:*Al!eniiPETEET,. e t:a ti,-P laintiffs; - s & ^ c t: jdge&mM ; appellate coprts m ust `' ^ o f ' f c H & o f t h e . t i t e o f l a m e s W ' P haa o T O S ^ quaW ia- ;_15-' i ; ^ .1 0 ` -tMn9''aIK^ SU'^1C1^ lt bM is for hisfopmjpn. i'rt.v - ji* i : -,,rf^ yr rT* j . ^ V l*s ' V -'" 2 .. E vid0tce...^=544, r - ;i: voi6fctpiF'd,b acasi ; t-sa&d.f. - r>;ii" ,'Fact th a t certified toxicologst .was not I 7 ^ ^ P O W : CHEMICAtJ COMPANY,-j -^specialist in any other, field went te;w eight, - ''.. flaJ, - , D efendant-A ppellant.. r a i^ u i. ; and not^admissibility o f expert's testim ony .^ c fc ^ .- a ^ ls ^ jg g j '- U h i t y - h t e r b i d d d i t e & n ^ a e b a e d - ' b y ' - d u h t t i e a l ' ^ ^ ^ & n ite d States (kmrti "Appeals/1'^ ' -w inpanyd was. si^ ific a n ^ "codtributing Fifth*.Circuit^ '; .^ d w .- ^ ^ d ^ ^ ^ ^ S e r a n d d e a t ^ p f I p r e s t g e r v ic e -.---ire^sssa' . i r fv'irworker.^exppsed to herbicide. i^si-s s* ., r iliti v ^ . :EvidiOTOe . f -V>J.> O -` rtC -U '/'-J T`r4A vj^ . * " (f : -ft1'-* : ' V : ' < i'- ' 2 `> ~ 1 ? Surviving spouse,^sg,i M diparents,,of ;,&-fii- ToxicoJpgist's failure; to persona^r e x - : . F orest Service w orker who contracted can->, fam ine Forest-;Service- w-orker exposed to herbicide did r ion that expos cant, contribu V ; ' and.death inac action :. againr Fed.Rules Evi 4. Evidence Toxicologi tion supplied ! reaching his c . herbicide - was cause o f user require "exclus FedR ules Evi 5. Federal Co d Chemical r object to toxicc that scientific c .relied, were" put to herbicide, ar o f liabflity for i any error in ac Rules Evid.Rui <L Evidence W hile sciei : cologist relied 'cem ing cause and death may `adequacy o f wa -articles w as ad; tio n of user's c "a 7. Federal Cou r `Toxicologist -, .scien tific::artici damage; sufferc herbicide to whit 7 . had been-expose f products liabi ,v ployee's survive . g ist did not discu ;. logical studies a; ; who developed \ . _ testified,,,that, linked, herbicide ' :J T i- -1f i i j w n .:- "8. E vidence <8= -t . .. Absence o f f -en theory- does r :K; expert's Opinion. 117 VV^'i , 5> - PETEEX,y--l)OW CHBMCAl^ COi` CUem68 F id 1428 {SthOr. 19*9) 1429 herbicide did not render toxicologist's opin-_' 9i;*vidence'*55eii .:s=>^fct<fi-l*-r**-'- ion,that exposure to herbicide was signifi- ,r l ^Hhtperh.W ^ W m ^ W v riy on stadies cant, contribut&lg'cause of worker's cancer in f o i ^ g th eif ^inions.- - ''; l -5 : ?^ d e a ib iin a ib n is ^ ^ product liability w x * - .: ;:ait^ihragaiiuita ta r in g . Fn e^tLi WR.u.'li,e__sT XEJvJidn.Rl . ul . leF i7n0n 3.,n*d2.T8r^-Uc i ^n&tAjW: i> lO /Federal C o u r t s . ... V' Admission, of expert's testimony hnply- ^ingtbat.chemicalmanufturtMrer. hadviolat- 4. Evidence *555.5. ^ : n. .; , ; 1^ _ .. v . - . ed law b y n otrep ortin g;im p u ritlesiits 'Toxicologist's'/ reliance upon informa herbicide to-:-Environm ental/Protection tion supplied b y'herbicide,user's counsel in Agency was harm less^ where chemical _____ a . ~j n - -j ! L'Oj Ti a i: _ a : _ 1 -". * . " expert to be incorrect , reOqrtuiirVefl^.eAxVcAluinsoiionn . pa F ;; j ^ r t 'a'tfeAsctfiimm oAnmyr. Fed.Rjils EviLR'ul 703, tw 11. Evidence =501(1) i . '.V: .. ' I L* 1` .fJ W'1 tf O.- 'tlw*1^*IJ-it fmt.*-1.I fc*. ' 5?'Federal C d d rts^6 2 8 ^ ' ` Chemical m anufacturer/ by .`failing `to i object to toxicologist's testim ony on ground that scientific, articles, on which toxicologist ['relied.'were published after user's exposure `to Herbicide, and thus could'not form basis x:x i - ' ; ` i ; ' .+ , ` ,, ,, : ,; - '. :i "of liabOity for inadequate warnings, waived any error in admission o f testimony.' Fed. - .^ stim o n y o fF o i^ t^ S e ^ c e em ployees concerning "hack an d aq u irtf' operations conducted by Forest Service w as admissi ble in products liability action brought by survivors o f Forest Service em ployee who contracted cancer and died follow ing expo sure to herbicide used during "hack and squirt'' operation.' - -i -i -'; i .. v, Rules EvuLRule 103(a), 28 U.S.C.A. ^ 12. Federal' C ivil Procedure =>2353 & Evidence;.*=55g.n - v; `s?^\.tstniH4''':' " 'While scien tific articles on'which toxi'Cologist relied in' form ing his opinion Con cerning cause o f Jherbicide- user's cancer \ Trial court did not ab u se.its discretion in denying motion fqr new trial oh basis o f newly discovered evidence consisting o f `toxicologist's allegedly,'fa lse testim ony a t' and death:may. not'have been relevant to . j , ^ bi% ^ ^ fie did not know -adquacy of- warnings,' testim ony based'on : ar n'a^ ,w^ .w a s,TM.Tact toxicologist s pa- articles w as1admissible- on issue of- 'causa- tient, where erroneous claim that toxicolo- - tion o t user's .canter. - -.r.;a . g ist did not know that man"could not have - . ;! affected outcome o f trial, and mnufactr- ,7.;F<d<sral; Courte =>900>. i a p i h-:n -n,*c er's counsel knew source T m istake from Toxicologist's '-`testim ony concerning early point in litigation; and had effectiveiy scientific: . articles /d eta ilin g neurological revealed, that expert Had testified in hun- ;damage- suffered by patients exposed-to dreds o f trials,-so-tim t; further revelation herbiade to"which F orest Service' em ployee ... that toxicologist had forgotteb name o f one 'had been'exposed did not .require reversal `'o f his' patients could-not7-have 'affected of-products liability verdict in favor o f em- 'jury's verdict. :i. pJoyee'si^suiwkorsr.:oeveal:though toxicolo- J i.-.. t' -'riiCf. - ;.=-_ i gist did not discuss anjy linthetw eeri neuro- )?*:F*deraI Courte 1J3*; 142 ,v- logical studies and symptoms of. em ployee ,v^' `/D istrict court did not ahuse its discre- who developed'cancer,, where toxicologist tion in denying' products-i hability defen- testified.,, t ^ t . ;1numerqus .. other, stydies ;.dant's motion for change,,of venue, from n i^ heA re^^ cancer. .^Eastern p istrict o f Texas, tq p istrict o f Zi . Evidence '=*508, r. r . . jS : where motion w as;not m ade;until / ' 18 months after case had been remanded to Absence o f scientific consensus on giv- -. Eastern D istrict o f Texas and defendant en'thory'-does :n ot ^affect -admissibility o f ' m ade'n o 1show ing th a t D istrict of* Oregbn. expert's 'O j^oiE "'"^ ^ : :was more convenient forum. ^ -j 3^C430 vA . i ' 86 FEDERAL iREPQRTER,r2d SERIES fc-r. f /'^ Joseph J.O rtego, U niondale,:N .Y .,M ike -.' . - . IL, 'U z M akulski,-.1il-#*-. r.Midland, M i^ v rlo ^ ^ ^ en d a ^ f^ p ella p t.: ;?' > '-i r i ; ffi?^SP|S -"MffjJ.* twin. Marshall Tot for nlam -V 1"1" 1 d istrict court had; jurisdietion'^under sA&ffcsi r. f.\ .. ,:i J v `28:U .S.C .;f }3^:^TIu^eoar^rjiiR Bidietion 'irviii^ri^rrvvijA '. p r i e s t s 1onV .1291.-'^ r !-.>vt v -c -j. W `1 i^ A p jfea ls'd ro ffl-th e-U m ted S ta tes.D is^ ^ YfsCouirt: for:'th e 'Eastem ;-Difitrict o f T exas.' ` 2 : '- ' ":. X-' C '' ' III.' p : h . ` -. fi >.> 1 % j . f-H 5v':-'s -`"j"5'1 *i l!::,:i'''"",1"'`':'. ' A pumper o i issues ur vanOU8' Weights ' '^av* I A^4 ^j Jodges^;. - /.-r;.i!;,>.i ^-*kre' raised by th is appeaL It is uncertain '' ' r '"; s w >->> "w h eth erth is number could have'been re- - iSN EED , Circuit Judge: / *'': ' - - - ' d u ced b y.am ore crisp aiqd orderly process "^ 'Dow Cheinicai C ii* ( '^ o ^ appeals a ! than appears to have been employed in this r ,v'^3 ^ 'verdict im 'iavori1o f !plamt2Efs finding / case. It is liie ly . however, th a t^ m o r e fit Dow liable inI'-tiuhd::dath o f Jam es <G---re-e_ni_hmill. ' crisp and orderly process w ould, have : <** f i V n - J r t s v ' R e a ffir m . framed-the issues more precisely.' The dif 1"<. j\.*, ' ' s**PVJh`> W .r j L-:;:.-i . j.A : ' . :*>! f,'- -L' ficult^ is that while such a process would f have sim plified our task, it is by no means ?ns!> ' clear which party would have been favored r< \ '1' ' b*;; ;>:4*. ' ; - >." k-".? i- 3 r: t%. ' . > ^ ^ r -D o 'c a n s e -'da8 ;-`v,.i. i, ' H ri'T e ite ll stanthd. H e "fie d m 'toxicc Had v a rio u s ; co lo g y a n d p . w ith ;se v e ra l h a n d lih g ' o f has srved' < m ent a d v iso r 17. H e a lso ; 38 o r 39 rtic that he h a s e: in g lyiriphom . m ay or m ay r tal or occupt R . 20. J.* . *T' 'V; ' , A s to h is p T e ite lb a u m ; te i'Wi1' u,i; vK i-J `or disfavored thereby.' W e now Jturii to the 'FACTS AND PROCEEDINGS BELOW 'issu es. V; I n .1976. a n d .1977,.J a m e s .G reenhill ty a s s , ;. se a so n a lly , em ployed b y t h e U n it e d S ta te s r o teeo /A p p ea - -- - " " - - ' ^T o riiR i S e rv ic e ' in O re g o n .'^ A lt h o u g h p ri- P la in tiffs seek to n a rro w the issu e s prop- ^ l . m a ^ a f i r e f ig h t ^ , e o c c a sio n a lly parties before.- u s b y a s se rt in g th a t D o w can I ' . ^ t ^ i n ' a w e e d ;co n tro l p ro je ct ca lle d a P P * 1- 0 Ily th e c o u rt's o rd e r d e n y in g the .r ^ T ia 'c k > n d s q u ir t . "; T h is p ro je c t;re q u ire d -.m otion.fpr J N Q V .a n d th e m otion f o r o e w >v . ; :; -- *- ".v .- .' I 've review G re en h ill, a to g e t . I 1 I h a ve re vie "; th e s u b je c t had - the : 'le a g u e s . . .6 R . 21; :; g r e e n h ill to a p p ly h e rb ic id e s m a n u fa c tu re d 't r ia l b e cau se Dove's, notice, of. a p p e a l o n ly ., D r. T e ite lb a j D o * ; :. i ^ s l m g ' b i m ^ v 1co ve re d th e se is s u e s .- O u r ta s k c a n n o t be fj*--, , l; . sive . H e f ir s t V... y n t g i ^ ^ . 'a e i d '^ ^ D i i ^ G re e n h ill's 'e xpb - reduced, so easily^;. Fed.RA.ppLP. .-3(c) re o f d ia g n o sin g 's c i r e to 2,4- D ceased m 1978 w h e n "h e w a s quires appellants, to designate: the, judg , *'* !ge n e ra l a n d in ^brahsferred to/ari6th e r p ark/ : A y e a r later, m ent or order to be appealed. In its sec- i b a sis o f sever ond notice o f appeal; Dow stated that it ., .'G re e n h ill w a s ..d ia ip io se d .w ith H o d g k in 's p ath o lo gists, E d isease" H e d ie d se y e n ^ y e a rs later. w as appealing from the " judgm ent entered lv- G re e n h ill's con . j :" \ ini this action," and^from the. deniaLof the . ^.iijG roenhiW s. sW rv iv in g C s son ^ and motion for JNOV and motion foe new trial. :[ . w ith H o d g k in 's .`^ p a re n ts,su e d ' D p w in ith e E a ste rn ^ D istric t --Notices o f appeal should be liberidlyl eon- D r. T eitelb aum J o f :T exas,K ' ;IT ie c a se w a8 tc a n sfe rre d to the . strued. See lngraham v. .United States, itific a rtic le s lin; "*" -`A g e n t O ra n g e " p ro d u cts lia b ility a ctio n ;in "' 808 F ^ d 1075, 1080 (5th Cir.l987)L; Dow's .e a se s in clu d in; " - th e E a ste rn D ist ric t o f N e w Y o rk . A fte r -notice-1 effectively!- designated -the ^.entire i ^............ H o d g k in 's d ise s m " se ttle m e n t o f th a t`case; in 1986, G reenhiD 's - ^record; for a p p e a L ' . '"i: -. - -a c tio n a g a in st; D o w :.'io r .th e e x p o su re to eluded th a t "to i , ta in ty , Mr. G r ; - i2^ tD returned, to-Texas-.* 1; - Teitelbaum'&Testimonyi ; viiO rphe^c^e- w a s frie d in ? N o v e m b e r i!dnd ; Dow strongly attacks the p la in tiffs prin 2,4- D w a s a sig . F; V- ; to h is ca n c e r a J' `D ecem b er, i 987.:?A lju ry aw ard e d th e p la in - cipal w itness, Dr; Teitelbaum . : It argues >`t if & J115 m ilh o h m 'd a m a g e s. " D o w ap- that the trial court erred in adm itting his -i f \ ; .i " 2. To positively pathologist m ust a tissue analysis. v'r!r;-,p e a ls:;' ,i,`''' ... testim ony which was the only evidence that t" :,i' j ! ! 'g ists were able "lr< - ' n 'i r i '. -r . . . any o f M r. Gre- J t )d g e ^ 't h (L ^ in t h l.CircuU,, sitti)]g by ,/vl. ; M r. Greenhill died after-the suit w as.fikd and f-` " J .However, the cc th e present parties were substituted.., ^ . . . thologists consul: 1 1 7 f ; \ 'V ' I3-&0- 4 >f i : OK ^ ., urisdictios-under. u r fs/ju r isd ic tio n - 'ri-- -I'Hi/i,' ^S 1 *. - '-lS\ j.- /I 'i .; ..... ... N varibusw eights It m/uncertain .1 ^ `i f:' *;j*- d have been re- orderiy process J3" I r*';'t;^. em ployed in this ' 'U,V. ir, th a t a more 5s w o u ld , have idsely.;- The dif- * w a process would ,.>0 ,.. y{ . is b y .no means ` ..-i"V-x*1 ve been favored now turn to the :: . - ....:*W.i't the issu e s prop s' th at D ow can . Jei tying the m otion for new o f appeal only task .cannot be .A p p J?.3(c)recnate - th e judgled. 'In its seo/ stated that it ' 4 tdgm ent entered he denial of th e : on fo r new trial. oe liberally am - United States, ir.1987). Dow's it e d t h e entire stimony: > ; p lain tiffs pnn- . ' am. ' :I t argues- -V;; in adm itting his. ily evidence'that V suit w asfiled and pT ' ;x'S. 3S;PETBET,triDOW CHEMICAGiCO.5? Ote s68 FJd 1428 (SthCIr. IM ) S431 ,'2jt-I>;;aue<t Grehfll'tp.H odgkin's '`dis- t^ D b w r sies m indaerofobjectionsabout ,} V*rft-!iy5s))^.*; <Dr. Teitelbanm's testimony; ; We .will':ad- . rl TeiielBaum 's ^ u ^ ^ ;^ . s u > . sta n tia D H e is a medical ddctorland certi- The trial courtes1dm&ion'or M ciu- | fied m`toxiclo^'?mB"R ^ il4 2 ,'f ;n He!has ^ i6 n ^ fi f^ r t' h id 'Various academic''appointments ih'toxi- yrsd'on appeal mles'the' district cort's 'co lo ^ w d poison control; helhasconsulted action was " `m anifestly erron eou s/'' with/'/several cb^patjons ' on kthe proper Koonce v.Q ^ kerS afetyP T ods. & Mfg. handling f j)oisnou8l nlatenls^ and'/he 798 F 2 d 700,7r(5tH Cr.1986) (quoti- `hM ^ 'CTe <m:ista te 1s m d f^ r ig b v in i- yigVerHins n'Volksiot^fen of Am. :Inc., m ent advisory-com m ittees. 6 Ri l --12,. 15, )6/F.2d 68!, 682' (5thC ir.l979));u Pge v. 17. H e also tstffid that h e has ^ublfehed (5th 38 o r3 9 ^ c l s d n t6xuldgyi W t lfr/an d ;,Cir.l982); see Baman W C eriier orp., S ... r /,. th th e 'has eXte' lhi ' s-i*vjL e__x_ ip. erience ih ' r. valaat- ' /611111 F' r t.2AdJ <1'11i1t 5r t; i111A2A0 V(5PtlLh' i/ VirL.1'l9A8A0A)\.; D esp ite'Tfc______s.'. ing lymphorti'a to determine "w hether there this brbad discretibri,; w e are mindful that m ay to r m ay not haver bi; an nvironm- 'district judges andappellate courts m u st `ta l ruccptnal caqse"' fo r th e disease; 6 carefully review an expert's testim ony to 2q::.U. v.j, '.'i: ,?,<: i/.i .v -, ensure that the expert'has the necessary qualificatiohsand a sufficient basis fo r his A i to this preparation .for this case, Dr. opinion. - .See Eymard v.P a n A m . World .Teitelbaum. testified.that:V - v*,,: ,, ...... Airway8'(Iri. re A ir CrashDisaster), .795 a- I 've reviewed the medical records; o f Mr. f; Grenhill, as. much as. we: have been able j fa g e t d f have: reviewed, his depositiob. F 2d 1230, 1233-34 (5th,C ir.l986). a !; ; 1 ... Specialization , ; -V'1T have reviewed 'the medical literature on - th'e subject .- I'v e looked at'the slides; I 'I had ; the -slides looked - at -:by col- ''-leagues-.-i-;.';' '.* .1 6 RJ `21.-- 1. ' , 0 ; r- . D,r. Teitelbaum's testim ony .was rexten-: sive. . H e first testified about theKdifficulty o f diagposing Hodgkin's disease,, both in igenerai and ia this case.. 6 R. '36!/ On the i . r ; r, . ^ j . , V . . \ j'-*.-?; .* ; ."."v { b asis^ of seven reports by a / number o f pathofogists/ D r. Teitelbaum testified' that Greenhill's ^ p iiU t^ J i^ '.^ ^ t'.p Q n siste m t with Hodgkin's disease." f 6 R;. 5L N ext, Dr, Teitelbaum discussed twenty-two scien tific articles linking 2,4-D with various dis eases ..including cancer .a n d ,sp ecifica lly Hodgkin's disease. 6 R -115-21. H e con- cluded that "to a: reasonable m edical cer tainty, Mp Greenhill's exposure to . , . 2,4-D was .a significant, jcontrihqting cause to -his cancer and his death:" ; 6 "RTJ22. a [2J `First, Dow vcom plains that Dr. Teitelbaum w as nett-qualified to: render an .opinion; because, he was not a specialist in any relevant field- Dow preserved this objection.v. & e 6 R. 2-5,28;i4314 4 .; A s noted above, Dr. Teitelbanin is.a certified toxicol ogist* The fa ct that Dr.;Teielbaom is not `a specialist in any other field 'g o es to the w eight o f his opinion, not its adm issibility. See. Holmes v. J. Ray McDermott & Co^ :734 F A i U lO , 1115 (5th Cir.1984); see also Payton v, Abbott Labs,: 780 F .2d 1 4 7 ,1 5 5 - .56 (1st Cir.1985) (upholding tiie adm issibili ty of two doctors' opinions oyer the objec tion that they w ere clinicians and not re search scientists); AsA&iii Oil, Inc. v. Delta Oil Prods. .Corj`.(585 FJ2d 175, 178 (7th Cir.1982) (upholding- adm ission o f ex pert's opinion despite his lack o f specializa tion in .k particular branch o f chem istry), cerCderiied, m U . 198^ iifi.S .C t. 1769, . 76 L.Ed.2d 343 (1 9 % ; E , Cleary, HcCor- ' 2 . To positively diagnose H odgidn's d ise a se / . pathologist m ust find-a "Reed-iSternBerg" cell in tissue an aly sis.'.(>R. 42. !Noine o f th e patholo- . gists w ere able to find th e ch aractristic c in any^pf^idr. iG reenhill'^ tiissue'slid ^ ..6!.R ,.44, ". H owever,, th e consensus; am ong all!. <i.'th e .p : ' th.ologists consulted bji D r. T eitelb aum w as,that ,^ M r.. GreeidiiU's slides w ere consistent .with ..a d i^n o sis hf.'.H odgkin's |d i s e a s e .^ R . 21, 50. ' iV> \. 3, Dr.' Teitelbaum . is. certified by H ie A m erican B oard o f T pxicolor. .6 R . 1 8 rl9 , The A m ai- #./can M edicaiA ssocjato. does rH ^aertify d o lo rs A in toxiadoQ r. . 6 R. J9 . . . ,, vj ^ c,. /; v 1178 Q-taol 2B32 868FK D ER A Ii!K PO BTER ,:2di SERIES v & r l j J 9 : b i } - J * ' * - W W * m *! .vckonE videnee^13t 3&(3d 4s 1984) p r ts ..See, UnedStateS v. Lawson, 653 .-fllW hile the court maya h il th at a certa in -, F.2d 299, 302 u 7 (7th Cir.1981), certi.de/ Subject o f inquiry requires th a t a-,member hied, 454 U.S.11,150/ 102 S.C t 1017, 71 rd2d f 'fo M t ;j. spjcii$stm .a particular lapcjh w thfeja - p .:f,The -.;!i.jicj*trr deterinizration pf . u m, . wKethi;p n :'mqpert,;1- ^ " V ~ ' jn e e ts the r^uirem ents o f FedtEiy^L 703 ' ! - ' - iiu ilv - ; spuustbe midepn.a,case-bjr-case b a sis...JSo- :*c fa jp ip i Bains'` a ! n U^ [ix T 'k * c .:* . .ftig/iiliner .jCorp-* 7 l i F ^ .'498, . , 5CKH)3 (5th. .|^ ,1983^ , ,)ye. review the !dis- .^.poyr, net pbjjectsjto.;Dr. Teitelbaniq's trict court's actions for abus o f discretion. . .^tnponyi-an 'je .grjrandp tbatjhe, hpdjjio ^equate L|sia^'for; opiqiqiUy SpeiaDy, id. at 503,?^v't.*' I':'-'; '; i:.'; 1'v*" - .'WSrffi V'7:3V-a 4ir*;u ^ [3] ^Dow's .fitst; robjectiqn,, that Dr. ^ w argu^ thJEU; prr TeiteIba^'S;upinion Teitelbaum never persoually examined Mr. jnadmj&sjbl hecause: (l)h q pever ex- . Greenhill, faj3s, tq h it its mark, ..A pe|rapnal 1 ^miqe<|; Greenhill, pe^na^y^and. (2)_ts .exam ination o f the persop or object o f the ' .opinion ijjr'Jnijeg?.sofely ou .information ", expert's,, testim ony, is.,n o t, required under > puppl^ by counse Dow'g pyrall pbjec-l' Fed.ItEvi(Lk 703. ;, Ip . Sweet , v. . United ^ontoI)r- T eits^um 'si qualjfication^prqp- v States, 687 F.2d 246,'249 (8th Cir.l982), the ^ ly .p r e s s e d ^th issue. .. 6 E.;2r&$;:3!j governm ent's expert w as permitted to tes l'\ Th Federal`itu les o f Evidence require tify about the 'possible effects o f LSD on ;itbatian expert1Popihion*'be based on infor the plaintiffs even though he nevr-exam - mation "6 f a type' reasonably relied upon ind them . Similarly; in Data;Line Corp. by experts in the particular fie ld ..;:" ' Vi Mien>Technologies, Inc., 813 F.2d 1196, F edJt.E vid.703.r Inrmaking this determi 1200-01 (Fed.Gir.1987), experts in. a,patent nation, th e tr ia lc o u r t should ,defer to the case testified without physically exam ining . exp ert's ; opinion ::of .what data they find th e cash rcgisteruthat allegedly 'infringed ;jea stin ito ly relia b le;.- Greenwood.,Utils upon plaintiffs, patent . See generally 3 D. Commti>'A<Mississippi Power.,Co., 751 Lottiseli & C. Mueller, Federal. Evidence iF -2 d l4 8 4 ,1 4 9 5 (5th Gir.1385); In re lapa- 1 389, a t 657 (1979) (rule 703 "diminishes nese Elec..:Prods.: A ntitrust"Litign .723 the need for the expert to have firsthand vFJ2d 238, 277 (3d,CirJ983), n v 'd.oh other' knowledge concerning -the m atters in is- grounds, 475 U ^ 5 7 4 , 106 S.Cfc.1348, 89 sue'7-; ''4: v -f U EL2d 538 (1986); aS? V : .i.r ; -- ''',141 D ow 's second^objection, / ^ a t Dr. v^Omr r e ^ w vrfT:tm `;m )^ is'hampered Teitelbaum relied on inform atiou supplied because neither;th parties/nor the court 'by p lain tiffs cdunsel in reaching his con framed the issue in thse terms. "Indeed, clusion,' also fails. This does not require tiie district courtoverruiedDow's objection the exclusion o f the expert's testfinony. without;comment. 6 R. 6.' 'This court sug ;''See Gideon v. 'Johns-Manville \ Sales gested in Greenwood'that; in the;absence :: Carp., 161 P.2d ;1129; 1135 (5th CirA985). : Of an mqjlicit factual finding on this issu, :; A different result would infase many per- , 'w em ustrem nd the -case: to'the district , -sonai injury suits with quite difficult issues ;.:cour. 'r'Soe^Bl F^d ait ldSe.' We domot o f source tracing. ? ^: helive' k remand in:this cas is necessary, a .-^V T ' V . : V r..L : 'feowever.f Vf may tak judicia notice that . . c i` ; 3. Scientific' Litemture .the facts'relied oh by' Dr.:1Teitefoatun are 6] ' Dow next argues that Dr. Teitel- ^titose1'usually considered by medicai x- , baum's testim ony should have been exdud- `.`4nu-ji5iD o w ,'in its nation, for* summary' judgment, - \ . e th ^ 'brfre ;r durin Dr. Teitdte'umvs testi- also afgued '.'that;1Dr.VTeitelliaum'stestimony.. mony. Any error was;therefore waived. See \ lacked a sufficient, .basis because he did not ' .FedIR.Evid. 103(a).' Further,, Dr. Teitelbaum 1i*1know of'ih e 'extent' Or duration of Grceiihili's . ` vteifid'tha( his'opinion was bsed' upon Mr. 1'^ exposure td f2;4--Dt .Although' Dow raised'this,. . Greenhiirs deposition. - 6 R. 21. ; During his .r q h j^ a f ii n 'it s motion; for summary judgment," *' 'deposition; Mr.'Orenhill testified as to'the ex- i 2 R. 362-63, Dow foiled td renew this objection ' i^tent of his exposure to' 2,4^D; ,J ' 1 p?;. ,v.. \lP' >;i > L. ' v{ 1 lid '/ V;^ r: 1k.- T-'--'f: V ''r "' v. ::-v ''r y. . ed because be relied' v hill's; expo the basis r .:ings.'.\This First, Dow :baud's tes error yras ' Further, v. post-dated have . been .w arnings, t sue pf. caus Zimmerma Cir.) (gover w as adhtiss `nition shell other grow, L.Ed.2d 3 ( [7]' Dow L ; th e, scientif Teitelbaum ties which f A.' "wholly irr \ bqum's dire objected to articles detr V %xl. ` fered by pa f;; grounds tha ical illness.8 neurological articles were f-ii ; '4i<y-. by Greenhill cuss any sue - cal studies * N evertheless ; adm ission'of sal . See:Pe ' *. Indus^ Inc., tX. ;-v. - s 1985) (eviden only if they i V7 Dr. Teitelbau er studies lin -- ;the neurolog: - v- -, substantially -lii..'/ .,' "'y.-sik-\ ^ :. -'C- y Caw SteDow, next causation tes - "5: "Dow's co u r 1 ;.V;,*7{-: '-Study linking ~,cetieacids w; KiriJLh)-v--f "l:^ T. grounds that D, a n d th a t th t vson, 53 r .lW j, cert de> S.C& 1017, 71 ... t1* f F e d ^ v i i `703 y-casebaais. Sox, 7J4 F-2d 498, . e review .the dis- . use oif discretion. '... ctjpn>s.l .th at -D r. ' U yexam ined Mr. i iark, A personal . i or ob ject o f the v. t retpqjred- under tceet ,v. United 8th CirJL982), the perm itted to tes- : ffect& of LSD on h he never exam- Data:Line Corp. c., 813 F .2 d ll9 6 , cperts in a patent sically exam ining llegedly infringed lee vmlly 3 D. ^edi. Evidence ' e 703 "diminishes to have firsthand he m atters in is- ' : j T' O ' ' -r jection, that Dr. orm atiph supplied reaching his con- r does . not require cperfa 'testim ony. , i-Mariville Sales 135 (5thlCSr.l985)., infuse many per lite d ifficu lt issus iteratre :--- es th a t Dri Teitel- ' have hieen exclud- ; )r. Teelbaum's testi- > . erefore waived. : See. ih er,.ib r. Teitelbum .. was based upon M r. R. 21. During, h is . testified as to the ex- * ' 4-Dv'" " '' 1`EKTEET DOW CHEMICAL'Ca:'- il'433 Cite as868 FSd 1428 (SthO r. 1989) tod' because the^ ciendfic arficlesr o n which cause h e`admitted th a t the cause o f 95% o f - h e relied^ were'published after'.M r.,Green- all Hodgkin's disease cases is u n k n o w n . hill8vexposure and,"thus, bould-'notform R. 214. Dow. properly preserved this objec .\ th e (basis o f ,liabihty: for'inadequate- warn- tion. 6 R. 3. - Dow, however, has inischar- iin g 8 / i.This argum ent fails for;two reasons. ctritod Dr. Teitlbum7s tostim ohy. i The (F irst Dow never objected*, to Dr. Teitel- doctor ^clarified h is 1statem ent' by" saying LfcmJm'e .testim ony on ;these grounds; any '^ o i^ u m s. wiMved,.j.jSe; FejblfcEvid. 103(a). ;|jUZihCTj.;(yrhile ;the .scientific^articles that ppst-dated .Greenhill's exposure ,mayt pot Jiave been . relevant; to |lhe adequacy of .warnings,, they were, adm issible on. the. is- that the cause of more leases could be diag nosed if the cass^W ere examined more carefiilly; ' 6 R. ^W -slThis com plaint'goes to the w eight rather thn tHe adm issibility o f ;Dr."Teitelbahm's opinioni * " ' S u e e f causation., Cf.ChaUonerv.Day & ^immeiynann^ Inc., 5J2 F,2d 77, 73 (5th 5. J & h iV'M 'Ch:.) (government study dope after accident Iwas'adm issible on issue o f whether aintfn- m tion 'sh ells were defectye),. vacated', on other grdiindSf. 423 IS.13^9(>S.C t`r67j 46 IEd.2c 3 (1975). - `J O ' -'1 i.is it 'f ik s ^ .i;^ .j/f.[7 ]D o w also.poptplains in its brief that L?DpW also objected to th e ;admission p f Dr. Teitelbaum'a testim ony on the: grounds that, his- `one-hit" theory pf causation.was "specious.!!.- This theory su ggests that one m olecule o. carcinogen,: in the right, place anct.at the. right tim e, can ,cause cancer. .- 6 to e-,scientific Jjterature. upon,-.w hichD r. R^ 133.'. -Although Dow did file 'a pretrial Teibelbajum rejipd "dealt with, disease enti m otion to-exclude Dr. Teitelbaum 'sitestim o ties which Greenihill did. not have" or.wer ny" on- these grounds, -!;, R.. 83-84,, Dow .`wholly irrelevant" During ID r.. Teiteljbaum's direct examination, Dow's counsel objected to the discussiop o f ;jwo scientific articles detailing neurological damage suf fered by patients exposed to 2,4-D on the grounds that plaintiffs alleged no neurolog failed to renew this objection during^his testim ony. Thus,; Dow failed to preserve Anything- for review. 'See Petty v. Ideco, Biv* o fDresser Indus, Inc..761 F.2d 1146, ii5 o . ..I' i ; ,? <? . i . i f . .? v l f .v'iaO . , `~ r - - . V. ic a l illn ess.*' P lai^j^frespiid7;K t' the heurolgical sym ptm s1described- in these ^articles ; ^ ';.su ^ lw lto -& o ^ :!e^diiud h y Creenhill; ``13r. Titelbum';'di:nf ^`dis cu ss any. such'Hnk b et^ e ^ toe hurolgi. ; cal studiesv and . Grenhl's ,, symptpms. . Jieverthelessj ^We''cannot conclude' that the adm ission1Of this evidence warrants rever sa l. 1 Seei-Ptty. v: Ideco, Div, of Dresser [Indus* Inc., 761. F.2d 1146,>115t (5th Cir. '1985). (evidentiary rulings w ilt,be disturbed only if they result in substantial prejudice). Dr. Teitelbaum testified that num erous oth er studies linked 2,4-D and cancer. .U se of .the neurological damage literature did not substantially prejudice Dow, C-.;i : ` (81 Even h u n tin g toat this e ir o r w as preserved;-the absence Jd f a scientific `con sensus on a given':thbory1does not a ffect the adm issibility o f a h .expert's ;opinion. v A h expert's opinion need;not BO generalis:ly -accepted in th e scientific community dbefore it .can be sufficiently xeBable.and probative :to SuppOTtih jury-finding... - -.What'is necessary iscih a t the expert arrived at his causation opinion by relying - upon methods that .other experts in his ." field would reasonably rely on in form ing r. their own, possibly .different opinions, ..about w hat caused th e patient's disease. Osbiim v. Anchor Laboratories, The.,' 825 - i. F:2d 908) 015 (5th Cir.1987) (citationS omit- 4. Catise of Hpdgkin's..:pisase . t.ed).' A s discussed above, D r. Teitelbaurii -' Dow jext, argues that ;Dr.`Teitelbaum 's arrived at his opinions by relying on the causation testim ony .was 'inadm issible he- sam e kind of information relied' upon by v .- .p , n r* ' V, .-/ ` Hire- Si iyq w s counsel also objected when another :i-study linking dancer to-exposure, to phhoxya- 1 cetic-acids was discussed,. Dqw-objected on.the -- 'grounds that such acids might differ from 2,4- D, and that thedoctor's inference based-on this .i `P - il v* -1 ,':u ' ' stiidy was speculative.' R. 85^ Th court over- " ' ruled th ii' objection. ih'.' Teitelbaurii then testi- -.-..fied 4bat2,4-D;Was a phenoxyacetic acid. 6 R. 85-86. The trial court properly overruled the '-objection. -- if.:. ! :->;j ^ 868-FEDERA1. BJEPORTER,2d SER IES . -V . #:,< V T C -; ! . r - l Vi jqthgr m edical xperts*'.} H istestu n on yw as ^thisi-court^; E ym ardv. Pan;Am:,'World .rpropertysadm itteik^ i.k* Airway* (In re. Air Crash Disaster), 795 F;2d .12301 (5th . Cir.1986) and .Viterbo v. -:ir Dam Chemical Co., S26 TP.2d 420 (5th Uir. ^ rfin anyi;jPow ^bjects;to P r. Teitelbaujn,' 1987). ;Both of these cases fail to-support t^ tim on y on thegroupds that; he wasrpepr Dow?s contention.;?: In In re Air Crash ,-imtted- to ,testify J h a t 2,4pB, contained hn- Disaster, tita court held th at the admission purities ^ t h a t B o w 's.fa ilu re tp report o f an econom ist's testim ony was error in a ?tjjfe .impurities;violated EPA regulations. wrngful death ction. -The court found U sing q.confidgnttai..Dpw report, B r.T eite^ that'-the expert "made *assumptions' that baum testifieidU m t-U ^ A ^TP; produced at w ere inconsistent with Common sense. For Dow's plant contained im purities, 6 R 104- exam ple, th eecon om ist assumed that7the OS, and that these impurities: w ere contribu 'deceased's income; would iricteas 8% annu ting cau ses'! Mr. GreenhilTs cancer, 6 R. ally for forty years, while His taxs would Or:'Teitelbautoam tinued, testifying Jpohniinie;only 596 o f hism com epT he' court that-E P A ? regulatiobs;; require chem ical foiind, both assum ptions incredible. 795 com panies to report the finding o f impuri F.2d a t 1,234..: yin' Viterbo, the;ort upheld tie s 1"in; th eir products,' and that, to .his th exclusion o f'an expert's testim ony be know iedge,D ow never-reported any find cause the p la in tiffs medical history w as ing: o f these :hiipurftir;to-th e EPATc 6--R incom plete ' in : a 1'-`critical area,'*"o.e.y the `107-08. Dow's1counsel repeatedly objected doctor faded to consider the history o f hy to''this 'lih& o f^questioning on the .grodnds pertension and :depression in' the p la in tiffs . that it w as speculative.; i 6 R. 106,108^ 109, fam ily history. " 826 F.2d at 423. "Dr. ili0 r " ,-i'!!.-';; '../c > -' ;, Teitelbaum's testim ony did not suffer from c ^ -ry c . jf c ( .* . f :'> X : 1!?.;<! '> 'any1 such defects th at ca st doubt on the Experts arts entitled to rely ohstud- iSSf in .,tormppg; their .opinions..... See, e.g>, validity of his testim ony.^ : . Mannino v. International %fg: Co., 650 F.2d 846, 851- (6th Cir.1981); Baumholser pr Ama$i C W ; ^ow,163p; F,2d 550, 552r53 (7th ^.i9^0).-t;Tliusi. I>ir-.Tcftelbatun could u se the Dow stiid y tp.form ulate his opinion i 8. Conclusion r"..^ ` ' f ; -; * . j : ( v * ' r l * ^ '* 1 * ? ' . ' f ' .. 'Based on our review o f Dr. Teitelbaum's testim ony mid all o f .flow 's objections, we Lonlude. .th a t the district court 'did not abuse jts discretion or conamit m anifest er- rop .in adnutting )iis testim ony.., . ,; ;r, -I-sCibiy More:5troublesome,) however,; w as D r.T eitelbaum 'a testim o n y implying that V ^!T^tim(^f o f Kier..aridJHptoii Dow; violated the law;by nofc reporting the -t i l l Dow,n ex t complaint o f th e testim o impurities to the EPA. This,testim ony was ny o f Andrew Kier and Paul Tipton, form er adm itted.eveh though these questions w ere United States :F orest Service .em ployees, outside -the- doctor's, expertise and there w h o testified about the "hack and squirt" w as no evidence that h e k n e w (l) whether operations..: Ther trial' court's decision to th e EPA had reporting requirem ents or (2) adm it lay opinion testim ony w ill Only be w hether Dow^complied w ith them . This reversed for ' an abuse o f discretion. was; errori b u t w e hold it: to- b e harmless. Scfieib v: :Williams^McWilliams Co:, 628 .Dow has pot.show n th a t Dr. Teitelbaum's F.2d 509, 511 (5th Cir.1980).. Kier testified testim ony w as either incorrect or known by that he had seen the task performed al- ,Ihr. Teitelba^m to be incorrect:, : though he had nvr actually done i t See ' 5 R ..49, 56-57:-B e also testified that those %r.,:-RecmUDecisionsrof thia Couft^- who? participated in hach and squirt'Opera- . ' To support its argum ent (hat Dr. Teitel- tions wer^ expose^ to Tordon 101 .and that ^ ^ '^,testunqny:S^uld i t frequentiy g o t on their clpthes and skin. ed^.Bow,relies^on tw o recen td ed sio n s-o f & R s51: TiptorCtestified that he had per- , Tordon 101is the brand name of the herbicide >i whose jnain. ingredient is 2 ,4 -D . ?; '5'P E T E E T , VLYDOW*CH EM IG A ?C O .' Clic as868 V J d 1428 (5thO r. 1989) formed hade and squirt operations! an d ;de S fA tttn a V T ^ fr counbelproduced^exhibit scribed the.proces3i; 5;R .65-6fi-3 .Tipton . 2an dusked Dr. Teitelbaum if h e hadrelied ^vatk,^ e .)me^t.wi)0;,,aj?pK^tfhe (^ en n calaoften w ere^ hpt th e,he^itide^haij splashed upon hun- on> those1records;v Drl'Titeftiaum appar ently-.becam e confUsedcwheni h e .sa w .th e Moss .rcQrdsr Wntained in-ieidiibit 2. and otated th atib u didnotknn?.JosephM osb. 6 R. ` 219-21. - This 'testim ony wasi. false h1Dow. objected tot! th e adm i8tion;'o f t h is since M oss w as a patiehttof'-D r. Teitel- evidence otr the grounds that itw a sir r e le - baum .-. cs'.'H iK tai. vant, and because neither w itness had s een . Mr. G reenhilt perform the'hack''and- squirt p Eventually, the,.4jda^:;^ u rtrt m terrened operation. .5 J t,i;44^5;'?62.- /Ihe^idistrict In responseto th e judge^squestions, Dow's court overruled -the objections!-. 5 ;R. 46,\63. .fpunsel,. admitted ;jtiiat he, realized during the deposition ^thatiDrf .Teitelbaum's assist- .`ITJie'.inal'court's admission of.rtKis, testis M ts had m istakeniy in clu ^ d M oss' medical m oh yw as'ttbt error.' 'Both^ witnesses' testi retards,! which had nothing to do with the fied generally'abbut how hack A nd`squirt 'reenhiil case... j j j . R. .2 3 4 ..Hp stated he operations w ereperform ed.' Each was' te s vyas trying to show that Dr. Teitelbaum tifying 'from his' own knowledge and spokp made a m istake.. 6 R.j.239. ..Afterthe fo his own observations. See generally'E l bontroyerey subsided^ on redirect examina Cleary, supra, 10. : tion Dr.'j'eitelbaum reiterated that his opini: a ; ft* ion was based on GreenhiH's medical D!" Motion for Mew Trial _ ' . (l`;. [121 .JPow, in itp next com plaint,,reveals more about the gam esm anship in litigation than it does .about judicial .error.;., Itcom -. plains about the frial court's denial o f its motion for- new frial on the basis of newlydiseoyered evidence.7.;,Dow claims that Dr; Teitelbaum, testified falsely at trial .about records. 6 R. 228, 232. ; - /' . . . . . . l.- :U y, ;We will. nat. overturn the distriet courtis refusal to grant a motion for new trial on the basis of newly discovered, evidence ab sen t a clear.abuse o f discretion. 0bum v. Anchor Laboratories, Inc., 825 F.2d 908, 917 (5th Cir.1987). In determ ining whether to grant this motion, the district court should "consider whether the new facts (1) knowing a man framed. Joseph Mossb>Thb would probably change the outcome; (2) facts, surrounding this issu e are som ewhat could-hbVe been discovered erlr w ith due confused fJ t seem s that before D r. Teiteh diligence; and (3) are merely Cumulative or baum's deposition;.his assistants collected impeaching." : Johnston v. Lucas, 786 F.2d three boxes o f . medical records regarding 1254, 1257 (5th- Cir.1986). ;: this case fo r the deposition! 6 R. 223/224; 227;- In one box of- docum ents, the .medical records; o f Mr.. M oss, another o f Dr. Teitelbaum's patients; were m istakenly included: See-6. R.; 228. Dow's.cou n sel noticed'; the s. Applying tins standard/the district court properly dnied Dow's motion!V That Dr. Teitelbaum erroneously .,claim ed, not to know Joseph Moss could not have affected th outcome o f the triaL D ow 's counsel errorian d asked D rH T eitelbaum rw hat Knew o f the source o f the m istake from an records he relied upon in form ing his: opin early. point'in the litigation. . In his cross- ion that 2,4-D caused Greenhill's cancer. examination' o f " D r, Teitelbaum, , Dow*s The doctor expansively responded., that, he counsel effectively revealed that the doctor had refiieid upon all the documents in tjhe testifid in' huridreds"o f trials. 6 R. 140. room:f 6 R'. 2331 Dow's counsel then had a The further revelation that Dr. Teitelbaum stack o f 5 docum ents,, including `M oss' had' forgotten ,the name p f one patient iW rd s, m atkedias'i"exhibit i." - \ ill iiiTt.,- W ? * 'X T 7, Dow also contends that the district courtem sd in ovenruliiig their motion for INQ V. for! the " same" reasons, A motion fo r JNOY should 'be ` granted when there is' insufficient evidence to' .support the.jury's verdicts SeeKendrickyS^Wi' couid not have affected the ju ry's verdict. `inois Cent G d f R .lt, 669 FJ2d 341. 343 (5th Cir.1982). ^m otion for JNO Y is not the proper ' remedy folr^Dpw's claim ." Thus, d ie district ' court 'properly denicxl Dow's, motion^ on -<ground. -- *' ' 0- -n JL436 868 FEDERAL REPORTER, 2d SERIES D q w :- w n a ,;j^ ^ u r t t :b y D r o T e ite lb a n m 's n a D y ;;D o w m ade no sh o w in g th a t' O re g o n co n fu sio n . slG om paiiH a+nJvciA JlJ R o b -. w a s a m o rer'co n ven ien t f o r u m / a ^ r tv j ; ^ ^ C a .t.,750 J '^ d l 501,;1505 (11th . C ir. 'r D o w ; nxlying^nXrivelloni- v. 1985) (p>afnbfg.-Bm.<r;p n tftW tn a n e w . tr ia l `Pan 'Ant. WorldAirways (In n t:Air Crash b a se d on e v id e n to lth a tid o c to rfa ls e ly te s tir L D is a s te r A ^ ; R 2d 1147 (5th':(^ril987), i on complains' vigorously' that the trisi'co u rt IU D s);- nis.A' < < rV : t * : .4&S!-7 X ' erred in . hot- articulating in its 'order-;the fy; EL.' Motionjto specific ;,facts.7andcircumstances- upon W hichit relied? in d en y in g Dow's .motion. 4 [ U F Dow^svtfaird^^round of e m ^ 'S tn : See,3 Bti563rf>.;WhQe w e recognizethat this ; olinii of the5strict court's1denial' o f itit would be the better practice, see; e.g+ In re m otiod to traSsferi vtoitie'to dregon1-under . Pope* 58(1 F-2d., 620.. 623 (D.C.Cir.1978); 2 8 y 5 .G .;' 1464(a) (1982):^ 3 R :67t450. `A Plum Tree; Inc.' t t Stockmentp 4 8 8 F.2d ; ifiotion tottonster^ w te^ addressed th 754,'7 5 6 (3cj C ir .l^ S i and that'..the,'toial the discretion' of tfcirial cotrt and w ill riot court inexplicably did not articulate its rea he reversed*on; appeal1a b sen ta n abns^ o f sons for its rulings, w e decline to .im pose discretion.'i;iSrbury-Pattill Constt. Co. mi inflexible rule requiring district courts "vlBayside Warehouse Ca.^490 F.2dV55| to file a written order explaining their deci 158 (5th Cir.1974); .p ie tr a court'm ust sions.'' ' ;i: pOnider"all relevah^t fctrs to determine whether or not on ,baknce the litigation Would more conveniently proceed and the :.interests f 'justice *be b etter served by transfer 'to- ' different" forum." 15 `C. W right; -M iller'' ! ^ Cooper, Federal Practice and-Procedure; 3847^ at 870 (1986). 1 -X } ; - - '. A fter reviewing the record, yre conclude (hat tHe district court. did .not abuse^.its discretion i^ d en y in g .I^ w 's 1404(a):JnQ; tio n i To bgm ,. th plaintiff is generally, entitled to choose th efp ru n u , See Menen: dez Rodriguez.v.PanAmi Life ins..Ca? . 311 F.2d 429, 4 ^ j(5 th C k l962) (p lain tiffs : choice o f forum should be., "highly es teem ed'') , o t h e r grounds, -376 U S. /7 7 9 , 8 4 7 s:C t `1130; 12 LEd.2d' 82 (1964).; Second, D ow s motion; to transfer Dow's reliance on In re A ir Crash is misplaced. In that case this court required district courts in denying a motion t o dis miss, on \h e grounds o f forum; non conveniens to file.a written order o r to make a statem ent on the record explaining its deni al; See 821- F .2d at 1166. N eedless to say, a motion to dism iss on grounds o f formum non /conveniens -implicates different inter e s ts than;a motion to tran sfer vennei' The Suprem e Court h a s:stated that -these tw o motions are. not "directly comparable." Piper Aircraft Co: v. Reyno, 454 tJ.S. 1235, 258; nl . 26,. 102 S .C t 252. 267 n. 26, 70 Ii.Ed.2d 419 (1981);;see also 1 5 C.; W right, A. M iller & -E. ,Cooper,, supra, 3847, at 372-75 (discussing th e differences between m otions to transfer venue and m otions to dism iss/ on ' grounds o f forum, non conve- Venue would have reused y et another delay niens). :The trial court did not abuse .its in th ^ p rotiacted litigation . Dow's motion discretion. - in . denying Dow's motion, to to tia iisfer yenue w as not filed until eighh transfer venue, teen months after',the case w as remanded !; to the E x tern D istrict o f TeaasI '3 R. 671'. r>ip. . fjie>District Court's Actions Parties, seeking a change o i venue should ; a ct ^ f h `,`r e e n a b le piromptness," 15 C- W right, "X M iller; $ E .C oop er, supra, -' 3a n84i '4i .; a- at '3n r3t^^ -r3m7,-ut .Cl diirlt'sX ht. ave considered t In its final ground o f prror, Do>v charges th at the djstrict wcoinurrHt'os ^"Aovveormall csunnpuerviesinon and m anagem ent o f this, case deprived Dow . a"'party's dlay'm denying a m otion'to o f a fair trial." In this portion o f its brief, transfer.:^See,^e.g^McGraUh-Edison Co. v. Dow simply catalogues a number of- ad }yarCFelt,1350- ^ 2 d ;3 6 i/3 6 4 ;(8 tii Cir.1965); v erse rulings by to e tidal court; 7 W e have M$nepz Vi,Hd^difig BroSi Oil &, Gs /Co., examined the record and, while not entirely 343 ^.SuRpr 681,' 682. (E .D W is.l972>^ Fi- happy .with w hat w e see, w e-find no basis