ELR Citation: ELR 21446
No(s). 90-S-1773 (D. Colo. May 15, 1995)

The court holds that §24(b) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts an individual's claim against a maufacturer of a wood-treatment product for strict liability for defective design, but may not prempts a claim for negligent manufacturing. The court first holds that plaintiff's claim of strict liability for defective design is actually a claim of strict liability for failure-to-warn, a state-law claim that FIFRA preempts. Plaintiff's answers to the manufacturer's interrogatories indicate that the claim is premised on the failure of the product label to adequately warn plaintiff of the dangers that exposure to the product could cause. The court next holds that the claim that the manufacturer was negligent in manufacturing the product does not appear to be based on any requirements for labeling or packaging that FIFRA preempts. If plaintiff can establish a state-law violation that is not predicated on requirements of labeling or packaging that are in addition to or different from those that FIFRA requires, then FIFRA does not preempt the claim. The court thus denies summary judgment on the negligent manufacturing claim.

Counsel for Plaintiff
Dennis W. Hartley
Hartley Law Offices
620 S. Cascade, Ste. 103, Colorado Springs CO 80903
(719) 635-5521

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