ELR Citation: ELR 20192
No(s). CV 90-3344 (E.D.N.Y. Jul 16, 1992)

The court holds that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not preempt state common-law tortclaims alleging that two children are brain damaged because their mother was exposed to the household pesticide Dursban during pregnancy. The chemical chlorpyrifos is sold under the trade name Dursban, which has been registered as a pesticide under FIFRA since 1981 and is packaged in containers bearing a label approved by the U.S. Environmental Protection Agency (EPA). The court first holds that New York tort law applies, because New York residents are suing for alleged torts whose locus was also New York. The court holds that the plaintiffs may seek recovery under design defect, failure to warn, and negligence theories. Summary judgment is inappropriate because risk-benefit balancing questions concerning the design defect claims remain open. Similarly, fact questions exist concerning whether the manufacturer had a duty to warn consumers of dangers posed by Dursban, particularly if it knew or should have known how its industrial customers would use and merchandise their products. Negligence claims embraced by the design defect and failure to warn theories also remain open. Turning to the defendants' preemption challenge, the court notes that Congress expressly acknowledges in FIFRA §136v that the states have continuing power to participate in the control and regulation of toxic substances covered by the Act. FIFRA also provides a general savings clause explicitly authorizing each state to regulate the sale or use of federally registered pesticides within its borders. Applying the U.S. Supreme Court's teachings on tort law preemption in Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608 (1992), the court holds that if EPA-approved labels were affixed to the relevant containers, the plaintiffs may not claim that the defendants' products were mislabeled. If, however, warnings to the trade, warnings separate from labels or packaging, or limitations on sales to professionals should have been used when EPA fixed the content of the label, a liability question remains for the trier of fact. The court holds that none of the plaintiffs' claims are implicitly preempted. But the defendants are entitled to some preemption protection, the precise extent of which need not be determined before completion of discovery. Although one New York State case has found that FIFRA completely preempts state-law tort actions, it was decided without the benefit of Cipollone. Even the federal circuit court findings that FIFRA preempts failure to warn claims have not held that design defect and negligence claims are also preempted. The court observes that no New York State court would now find FIFRA to have completely preempted all state tort law. Finally, the court holds that whether the defendants' compliance with federal standards immunizes them from state-law tort liability is an issue appropriate for postdiscovery rulings.

Counsel for Plaintiffs
Stephen Seidner
Fisher & Seidner
403 Deer Park Ave., Babylon NY 11702
(516) 661-5000

Counsel for Defendants
Frederick T. Smith
McCarter & English
One World Trade Ctr., Ste. 1519, New York NY 10048
(212) 466-9018