Pesticide warning litigation has challenged plaintiffs over the last decade. Courts construe the preemption clause of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. §186-136y, to bar common law failure to warn claims. (See e.g., Kuiper v. American Cyanamid Co., 131 F.3d656 (7th Cir. 1997), cert. den. 118 S. Ct. 1839 (1998)). How high this bar is set is a matter of controversy. Are claims unrelated to labeling and packaging such as fraud, negligent testing and formulation, design defect, breach of express warranty, and non-label failure to warn, preempted? The Appellate Divisions of the Second and Third Departments have recently addressed some of these issues. In Tyler v. Dow Chemical Co., 252 A.D 2d 31, 683 N.Y.S. 2d 619 (1998), the Third Department held that FIFRA did not preempt breach of express warranty claims that a pesticide applicator falsely represented that a pesticide application was safe for an asthmatic family. In Mann v. H.W. Andersen Products, Inc., 246 A.D. 2d 68, 676 N.Y.S.2d 658 (1998) the Second Department held that a failure to warn claim for birth defects arising from a mother's occupational exposure was not barred by FIFRA. FIFRA BASICS FIFRA comprehensively regulates the registration, sale and use of pesticides (7 U.S.C. §§136-136y (1994 and Supp. 1997). The federal Environmental Protection Agency (EPA), registers pesticides, and approves their labeling and packaging. The EPA-approved label must warn of health effects and instruct on safe use and handling. The EPA also monitors the registrant's compliance with statutory requirements, such as adverse incident reporting, and reviews the registrant's health effects studies on the pesticide. The states regulate and train pesticide applicators consistent with designated Federal standards (40 CFR §171.1-171.11; Appendix 8-A to 6 NYCRR Part 325). To prevent the states from duplicating the EPA's role in labeling and packaging, Congress inserted a preemption clause into the statute. It provides that a "state shall not impose of continue in effect any requirements for labeling or packaging in addition to or different from those required under [FIFRA]." (7 U.S.C. §136(v)(b)) "A state may regulate the sale or use of any federally registered pesticide...in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by [FIFRA]." (7 U.S.C. §136(v)(a)) Labelling is defined as "all labels and all other written, printed, or graphic matter (a) accompanying the pesticide or device at any time; or (b) to which reference is made on the label or in the literature accompanying the pesticide or device." (7 U.S.C. §136 (p)(2). The EPA has issued registration notices designating a Material Data Safety Sheet (MSDS) as labeling. (See EPA Pesticide Registration Notice 92-4, dated October 9, 1992). FIFRA IN NEW YORK Neither the Court of Appeals nor the Second Circuit has interpreted FIFRA's preemption clause in the personal injury contact. The Second Circuit has ruled on FIFRA preemption as it pertains to the regulatory powers of the New York State Department of Environmental Conservation (NYS-DEC). In New York State Pesticide Coalition v. Jorling, 874 F.2d 115 (2d Cir. 1989), the decision favors plaintiffs and should be cited whenever FIFRA issues arise in the personal injury context. However, even before Tyler and Mann, all of the Appellate Divisions had held that FIFRA preempted typical failure to warn claims against a pesticide manufacturer. (1) The First, Second and Fourth Department declined to find preemption in non-labeling design defect claims. (2) They also refused to find it in breach of implied and express warranty claims voluntarily assumed in addition to FIFRA labeling requirements, (3) or negligent testing, manufacturing, and formulating claims.(4) The Fourth Department recognized a breach of a federally created statutory duty under state common law: "no constitutional or policy reason preclude[s] [a negligence claim]...based on a violation of federal labeling standards."(5) The Second Department agreed in Sabbatino v. Rosin & Sons Hardware & Paint, Inc., 676 N.Y.S.2d 633 (1998). While both decisions analyzed the preemption clause of the FHSA, the courts applied FIFRA precedents to reach the holdings.(6) Later decisions followed these guidelines. (See State v. Fermanta ASC Corp., 238 A.D.2d 400, 656 N.Y.S.2d 342 (2d Dep't 1997); Sherman v.Claire Manufacturing, 239 A.D.2d 487, 657 N.Y.S.2d 453 (2d Dep't 1997); Sirico v. Beckerle Lumber Supply Co., 227 A.D.2d 396, 642 N.Y.S.2d 55 (2d Dep't 1996)). THE SECOND DEPARTMENT'S DECISION IN MANN On August 10, 1998 the Second Department decided Mann v. H.W. Andersen Products, Inc., 246 A.D. 2d 68, 676 N.Y.S. 2d 658. The infant plaintiff was born with birth defects after his mother was allegedly exposed to ethylene oxide (ETO) while employed by defendant H.W. Andersen Products, Inc. ("Andersen"). The mother worked capping ETO, the active ingredient(7) in a gas used to sterilize medical instruments. The active ingredient is the killing toxin. The inert ingredients complete the formulation and allow the toxin to be commercially used. The mother suffered health effects, and claimed that Andersen never warned her of, or protected her from, the exposure risks. The Second Department had earlier dismissed the plaintiff's failure-to-label claims against Andersen under FIFRA, 231 A.D. 2d 500, 647 N.Y.S. 2d 101 (1996)(8) reserving decision on the claims not raised on appeal. Andersen then successfully moved on these claims below, arguing that FIFRA preemption barred them, since ETO was an EPA-registered and labeled pesticide. The Second Department reversed and reinstated the warning claims that were not label-based. These claims were not preempted. The key to this decision lies in the nature of the warnings, and their relationship to the label: "there are failures to warn, and failures to warn." (246 A.D. 2d at 71).(9) The claims in issue were not that labels approved by the EPA should have contained different information or that they failed to protect plaintiff as a consumer. Those were preempted. (246 A.D. 2d at 70-72, 676 N.Y.S. 2d at 660-662) (10) Instead, plaintiff-mother claimed an employee's basic right to safety and protection at the workplace -- to be warned that she (and her fetus) were at risk from occupational exposure to ETO. Since this failure to warn claim was not label-based, the "label-based preemption" of FIFRA could not bar it. Mann construed the preemption clause narrowly. It recognized that some common-law failure to warn claims can survive when a plaintiff claims personal injury from a FIFRA-registered pesticide. Some courts have held that FIFRA bars all failure to warn claims, label-based or not, such as in Sowers v. Johnson & Johnson Medical, Inc., 867 F. Supp. 306, 313 (E.D. Pa 1994) where the court found that FIFRA preempted all failure to warn claims, including those claims based on statements and documents not attached to or not accompanying the label or package, such as a claim against a seller or supplier for failing to adequately warn or instruct.(11) However, Mann's decision allowing non label-based warnings claims is consistent with recent Supreme Court precedent such as in Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct 2240, 135 L.Ed. 2d 700 (1996). (12) In many cases, as in Mann, this may make the difference between a viable and a non-viable case. THE THIRD DEPARTMENT'S DECISION IN TYLER Tyler v. Dow Chemical Co., resolved an issue of first impression concerning FIFRA preemption and adopted existing law on breach of warranty. The Tylers lived in a suburban home in Saugerties, New York. They alleged that defendant Terminix International Company, L.P. ("Terminix") falsely represented the safety of a recommended termiticide. The Tylers claimed that they had informed the Terminix representative that Mrs. Tyler was a severe asthmatic and her daughter had respiratory problems. Injury followed the pesticide application, including an aggravation of Mrs. Tyler's severe bronchial asthma. The Tylers pled negligent application, breach of express warranty, and false statements of safety barred by FIFRA regulations 40 CFR *156.10(a)(5)(ix). The Third Department held that, although FIFRA preempted warnings claims against a pesticide applicator, the breach of express warranty claims here did not arise from the required label and were not preempted. The negligent application claims fell within the State's authority to regulate the sale and use of pesticides under 7 U.S.C. §136(v)(a) and were also not preempted. Tyler rejected Terminix's expansive reading of FIFRA preemption, which would have immunized all statements and claims pertaining to safety, even voluntary ones, as well as false statements concerning health and safety issues within the scope of the label warnings. It did, however, find that FIFRA's preemption encompassed pesticide applicators. Left open were the viability of failure to warn claims based on post-application contamination and resulting health risks. FUTURE TRENDS The Second and Fourth Departments have endorsed a state law cause of action for breach of a federally created statutory duty. Plaintiffs should consider such a claim against a pesticide registrant if the facts warrant. No New York law currently exists on whether post-sale warnings are preempted by FIFRA. Plaintiffs should therefore scrutinize the post-sale conduct of the applicators, or the technical representative of the registrant, for warranties and failure to warn. Plaintiffs should also beware of an increasing judicial tendency to dismiss causes of action (e.g. for non-compliance) on the merits even if they survive FIFRA preemption. This can lead to procedural problems for plaintiffs. Defendants often move, before depositions or document production, on an affidavit demonstrating FIFRA compliance. Plaintiffs are then left with options of responding only to the question of law or of arguing under CPLR * 3212 (f) that fact discovery is necessary for the motion to be considered properly. The courts, however, will expect evidentiary affidavits (not affirmations by counsel) supporting the claims asserted. E.G., Younger v. Spartan Chemical Company, Inc., __A.D. 2d __, __N.Y.S. 2d__1999 WL 104802 (3d Dep't 1999) where the plaintiff could not oppose summary judgment with CPLR § 3103(f) argument when more than 18 months had elapsed from commencement of action. Trial court order denying summary judgment was reversed. Without these, the claims may be dismissed, even though defendants have not proffered evidentiary affidavits demonstrating that no triable issue of fact existed on these claims. In these cases therefore, retain experts before filing the Complaint, and tender the needed evidentiary affidavits regardless of the movant's submission. CONCLUSION New York courts have continued a balanced approach to FIFRA preemption. While limiting its scope in non-label claims, they use it to dismiss label based warning claims. Early investigation and expert retention, knowledge of the regulatory framework, and careful pleading can help plaintiffs to clear the FIFRA preemption hurdle. Mr. Higgins practices with LaFave & Associates, in Delmar, New York. For a more general overview of FIFRA, see Trial Lawyers Quarterly, Volume 29, Number 1 (1999). The article is titled, "Preempting the Preemptive Defense," by Brian Wolfman, Esq. and Douglas L. Stevick, Esq. Notes 1. See Babalola v. Crystal Chemicals, Inc. 225 A.D. 2d 370, 644 N.Y.S.2d 1(1st Dep't 1996); Warner v. American Flouride Corp., 204 A.D.2d 1, 616 N.Y.S.2d 534 (2d Dep't 1994); June v. Laris, 295 A.D.2d 166, 618 N.Y.S.2d 138 (3rd Dep't 1994), lv den, 85 N.Y.2d 955 (1995); Wallace v. Parks Corp, 212 A.D. 2d 132, 629 N.Y.S.2d 570 (4th Dep't 1995)(interpreting the preemption clause of the Federal Hazardous Substances Act ("FHSA") 15 U.S.C. 1261 et seq. based on analogous FIFRA precedents). 2. Id. 3. Wallace, 212 A.D.2d at 136-137, 629 N.Y.S.2d at 573-574. 4. Id. at 137 5. Id. 6. The preemption issues under the two statutory schemes are identical. Wallace, 212 A.D. 2d at 136, 629 N.Y.S. 2d at 573. 7. The active ingredient is the killing toxin. The inert ingredients complete the formulation. They generally include emulsifiers, surfactants, carriers, and other compounds allowing the toxin to be commercially used. 8. 231 A.D.2d 500, 647 N.Y.S.2d 101 (2d Dep't 1996). 9. 246 A.D.2d at 71. 10 246 A.D.2d at 70-72; 676 N.Y.S.2d at 660-662. 11. See Sowers v. Johnson & Johnson Medical, Inc., 867 F.Supp. 306, 313 (E.D.Pa 1994)(finding that FIFRA preempted all failure to warn claims, including those claims based on statements and documents not attached to or not accompanying the label or package, such as a claim against a seller or supplier for failing to adequately warn or instruct.) 12. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct.2240, 135 L.Ed. 2d700 (1996). |
Note: This article was submitted by Dolly Tyler, one of the plaintiffs mentioned above. Read her story:
