Nebraska Supreme Court Affirms FIFRA Preemption Of Failure To Warn Claims
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Nebraska Supreme Court Affirms FIFRA Preemption Of Failure To Warn Claims
Date:
Tue, 17 Sep 2002 10:21:31 -0400
From:
Stephen Tvedten <steve@getipm.com>
Organization: Get Set Inc. (www.getipm.com)
To: Paul Helliker <phelliker@cdpr.ca.gov>
Director, State of California, Department of Pesticide
Regulation
cc: Christine Whitman whitman.christine@epa.gov
Sept. 9, 2002 - Mealey Publications - Nebraska Supreme Court Affirms FIFRA Preemption Of Failure To Warn Claims - Harold D. Eyl, et al. v. Ciba-Geigy Corp. LINCOLN, Neb. -
The Nebraska Supreme Court on Sept. 6 sustained its 1997 ruling that common law strict liability failure to warn claims against the manufacturer of pesticides governed by the Federal Insecticide, Fungicide and Rodenticide Act are preempted. (Harold D. Eyl, et al. v. Ciba-Geigy Corp., No. S-00-219, Neb. Sup.)
"[Harold] Eyl's failure to warn claims are labeling based," Justice William Connolly wrote for the unanimous court. "Under FIFRA [7 U.S. Code section 136 (1994)], a manufacturer or distributor cannot change a label. Because Eyl predicates his failure to warn claims on the quality of the warnings, his claims are preempted against both the manufacturer and the distributor."
The court ordered the reversal of a $2.1 million judgment for Eyl and dismissal of all his claims.
Eyl was asking that Ackles v. Luttrell (252 Neb. 273 [1997], cert. denied 522 U.S. 928) be overturned because of the reasoning in Sleath v. West Mont Home Health Services (304 Mont. 1 [2000], cert. denied 122 S.Ct. 40 [2001]).
The Montana Supreme Court considered an amicus brief filed by the U.S. Environmental Protection Agency in Etcheverry v. Tri-Ag. (22 Cal. 4th 316 [2000]), in which the agency argued that FIFRA did not preempt state law claims.
"We decline to adopt the position taken by the Montana Supreme Court," the Nebraska court said. "First, we have already considered the effect of Medtronic Inc. [v. Lohr, 518 U.S. 470 (1996)] on the issue of FIFRA preemption in Ackles and determined that FIFRA preempts failure to warn claims.
"Second, we give no deference to the EPA's position in the amicus brief filed in Etcheverry."
In addition, the Eighth Circuit U.S. Court of Appeals recently considered the same arguments raised by Eyl and rejected them in Netland v. Hess & Clark Inc. (284 F.3d 895 [8th Cir. 2002]), the Supreme Court said.
Eyl tried to a jury his claim that he is permanently disabled because of exposure to the herbicide Pramitol 5PS while he was employed by the City of Wisner. Pramitol is manufactured by Ciba-Geigy. Eyl claimed that he was a bystander who should have been warned that Pramitol had been applied. Only Eyl's strict liability claim for failure to warn against Ciby-Geigy was submitted to the jury, according to the record.
The Nebraska Supreme Court considered only assignments of error from Ciba-Geigy Corp. related to the preemption of Eyl's failure to warn claims, according to the record.
Copyright 2002, LexisNexis, Division of Reed Elsevier Inc., All Rights Reserved
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