ELR Citation: ELR 21526
No(s). H-91-1673 (S.D. Tex. Mar 30, 1992)

The court holds that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not preempt state common-law products liability claims in which plaintiffs, who were exposed to a pesticide applied to the interior of their building, sustained serious injuries, including death, stroke, and continuous medical problems. The court first holds that FIFRA does not expressly preempt state common law. Next, the court holds that FIFRA does not impliedly preempt state common law, because field preemption cannot be implied and "actual" conflict does not exist since compliance with both state and federal law is physically possible. Also, there is no "potential" conflict since the state law is compatible with the goals of the federal statute. That these individuals were seriously injured indicates that the goals of the federal statute were not achieved. Moreover, a successful state tort action would encourage more complete warnings in the future, and state law would not conflict with FIFRA.

Counsel for Plaintiffs
David S. Prince
5104 Scotland Dr., Houston TX 77007
(713) 869-2196

Counsel for Defendants
Frederick W. Chockley III, Beth E. Morrow
Baker & Hostetler
1050 Connecticut Ave. NW, Ste. 1100, Washington DC 20036
(202) 861-1500

James C. Winton, Scott G. Camp
Baker, Hostetler, McCutchen & Black
2100 Texas Commerce Tower, 600 Travis St., Houston TX 77002
(713) 236-0020

Chris C. Pappas
Dunn, Kacal, Adams, Pappas & Law
2600 America Tower, 2929 Allen Pkwy. at Waugh
Houston TX 77019
(713) 529-3992