ELR Citation: ELR 21436
No(s). 89-S-1726 (D. Colo. May 15, 1995)

The court holds that Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) §24(b) does not preempt a general partnership's state-law negligence and strict liability claims against a chemical company for property damage resulting from the partnership's use of an insecticide that the company allegedly designed and manufactured defectively. The court first holds that FIFRA does not preempt the partnership's strict liability claim that the insecticide was unreasonably dangerous to the partnership's property. This claim is based on a theory of defective design and manufacture, not on a theory of failure-to-warn or inadequate labeling, which FIFRA would preempt. The court next holds that the company's "adequate labeling" defense is inapplicable to the partnership's strict liability claim, because the partnership has not alleged strict liability for an unavoidably unsafe product. Moreover, the defense is premature because the company has not established that the insecticide is an unavoidably unsafe product. The court next holds that FIFRA does not preempt the partnership's negligence claim that the insecticide's defective design and manufacture created an unreasonable risk of harm to the partnership's property. This claim appears to be nothing more than a method for establishing a manufacturer's liability based on negligence, and does not appear to be based on any additional or different requirements for labeling or packaging that FIFRA would preempt. The court also notes that because the partnership's claims for declaratory judgment and punitive damages derive from the other claims in the complaint, they therefore stand or fall with the strict liability and negligence claims. The court next grants the partnership's motion to amend its complaint to include claims for strict liability, negligence, declaratory judgment, and punitive damages. The court holds that the partnership's delay in presenting its amended claims did not prejudice the company. In light of the case's lengthy procedural history and the partnership's effort to amend its complaint in 1991, the partnership satisfactorily explained for any delay. Also, the court believes that the interests of litigating all claims in a single action and resolving claims on the merits weigh in favor of allowing the partnership to amend its complaint. The court also holds that the amended claims are not a complete surprise to the chemical company, because the partnership's amended claims arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the partnership's original pleadings.

Counsel for Plaintiff
Richard R. Young
231 S. Bemiston, Ste. 1130, St. Louis MO 63105
(314) 862-4100

Counsel for Defendant
C. Michael Montgomery
Montgomery, Green, Jarvis, Kolodny & Markusson
1050 17th St., Ste. 2300, Denver CO 80265
(303) 534-4800