ELR Citation: ELR 21347
No(s). 91-562-B-2 (M.D. La. Feb 28, 1994)

The court holds that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) §136v(b) expressly preempts a widow and surviving son's state-law wrongful death claims against manufacturers and distributors of ethylene oxide (ETO) for failure to warn and failure to provide adequate information, but does not preempt strict liability claims for failure to adequately research ETO's carcinogenic potential. Relying on Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608 (1992), the court holds that the term "requirements" as used in FIFRA's preemptive provision, includes state-law damages actions. The court holds that the failure to warn and failure to provide adequate information claims are expressly preempted by FIFRA §136v(b) because the underlying state-law requirements are different from FIFRA's requirements and relate to the labelling or packaging of ETO. The court next holds that FIFRA does not preempt the widow and surviving son's strict liability claims for failure to adequately research, evaluate, and test ETO for its carcinogenic potential.

Counsel for Plaintiff
Charles R. Moore, Edward J. Walters Jr.
Moore, Walters & Shoenfelt
6513 Perkins Rd., P.O. Box 80359, Baton Rouge LA 70898
(504) 766-1100

Counsel for Defendants
Barbara Lee Arras
Phelps, Dunbar, Marks, Claverie & Sims
Texaco Ctr.
400 Poydras St., 13th Fl., New Orleans LA 70130
(504) 566-1311