ELR Citation: ELR 20391
No(s). 92-CV-158 (N.D.N.Y. Sep 26, 1994)

The court holds that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts breach of implied warranty claims, but does not preempt claims for negligent failure to conduct adequate teesting, negligent failure to comply with FIFRA, breach of express warranty, or strict liability in tort against manufacturers of pesticides and insecticides. The decedent was exposed to a number of pesticides and insecticides while working at a tree service company and died of esophageal cancer after bringing suit against pesticide manufacturers. The court first holds that the only changes made in the amended complaint that are valid are those substituting a relative for the now-deceased plaintiff and those addressing causes of action for wrongful death. All additional allegations violate Fed. R. Civ. P. 15(a). After reviewing FIFRA and the preemption doctrine, the court holds that FIFRA preempts all the plaintiff's state tort law claims that are predicated on failure to warn or inadequacy of product labeling. In light of the presumption against preemption, however, the court holds that FIFRA does not preempt the plaintiff's negligent failure to conduct adequate testing claim. The court also holds that FIFRA does not preempt the allegation that the manufacturers negligently failed to fully disclose information to the U.S. Environmental Protection Agency (EPA) because the claim is not predicated on failure to warn or inadequate labeling. The court next holds that FIFRA does not preempt strict liability claims for introducing into the stream of commerce products that are unreasonably dangerous for their intended use because the claims are based on a theory of design defect and not on inadequate labeling.

The court next holds that FIFRA does not preempt the plaintiff's express warranty claims to the extent that they are based on voluntarily assumed express warranties. The fact that express warranties are enforced through state contract law does not cause them to be preempted. Because FIFRA §136v(b) specifically prohibits state regulations from controlling labeling, but does not address self-imposed obligations enforced by states, courts are to interpret the latter as surviving preemption under the rule that preemption clauses are to be narrowly construed. Moreover, if states are not permitted to enforce express warranties that relate to labeling, warrantors will have less freedom to compete in the marketplace. Furthermore, if an individual's only legal recourse is to bring a claim under FIFRA, express warranties covering subjects outside the scope of the Act will be futile. The court holds that EPA approval of the manufacturers' express warranties does not necessitate preemption. A warranty does not lose its voluntary quality through EPA approval and it is not clear that Congress intended that EPA exert control over express warranties when approving them. The court then holds that FIFRA preempts the plaintiff's state-law implied warranty claims. Whether the plaintiff is proceeding under the legal theory that the chemical compound is hazardous when used in accordance with the directions on the label, or the legal theory that the chemical is not fit for the purpose conveyed through the label, both causes of action are based on an inadequacy in labeling. Finally, the court uses its discretion under Fed. R. Civ. P. 56(f) to extend discovery for 120 days to allow the plaintiff time to complete discovery and supply supporting affidavits to establish a factual dispute.

Counsel for Plaintiff
John C. Cherundolo
Cherundolo & Bottar
One Lincoln Ctr.
110 W. Fayette St., Ste. 1180, Syracuse NY 13202
(315) 422-3466

Counsel for Defendants
Robert Barrer
Hiscock & Barclay
Financial Plaza
P.O. Box 4878, Syracuse NY 13221
(315) 422-2131