ELR Citation: ELR 21120
No(s). C92-0114-BG(H) (W.D. Ky. Nov 4, 1993)

The court holds that Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) §24 preempts a farmer's state common-law failure to warn claims against a herbicide manufacturer. After the farmer treated weeds with the manufacturer's FIFRA-registered herbicide, pests infesting the weeds transmitted a virus to his non-virus resistant corn. The court first holds that FIFRA expressly preempts the farmer's negligent failure to warn claim. FIFRA also preempts the farmer's strict liability claim as it turns on inadequate warning. Strict liability on the basis of a herbicide manufacturer's failure to warn of risks associated with a herbicide's intended use would require the manufacturer to change its label, a result FIFRA expressly preempts. The court next holds that the farmer's complaint fails to state a breach of warranty claim because the herbicide's warranty shifts responsibility for covering the risk of pest-inflicted crop damage to the farmer. The label expressly warrants the herbicide's fitness for its intended purpose of controlling weeds and warns users of the collateral effects of using the herbicide on nonvirus resistant corn hybrids and suggests using a pesticide. The court further holds that the farmer failed to state a claim that the manufacturer was negligent for failing to test corn hybrids for resistance to disease and disclose the information from that testing. A herbicide manufacturer has no duty under state law to test corn hybrids for disease resistance and FIFRA expressly preempts any state standard of conduct requiring additional information on a FIFRA label, in this case information as to a corn hybrid's disease resistance.

Counsel for Plaintiff
Nancy O. Roberts
935 Kentucky St., Bowling Green KY 42101
(502) 842-5900

Counsel for Defendant
W. Kennedy Simpson
Sites & Harbison
400 W. Market St., Ste. 1800, Louisville KY 40202
(502) 587-3400