King v. E.I. Dupont

• Court: Court of Appeals for the First Circuit
• Decided: July 7, 1993
• Docket: 92-2381
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 92-2381

                             ERNEST L. KING, SR., ET AL.,

                               Plaintiffs, Appellants,

                                          v.

                     E.I. DUPONT DE NEMOURS AND COMPANY, ET AL.,

                                Defendants, Appellees.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. Morton A. Brody, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Friedman,* Senior Circuit Judge,
                                      ____________________
                              and Stahl, Circuit Judge.
                                         _____________

                                 ____________________

            James F. Freeley, III  with whom James F. Freeley, Jr. and Freeley
            _____________________            _____________________     _______
        & Freeley were on brief for appellants.
        _________
            George S.  Isaacson with  whom Peter  D. Lowe,  Brann &  Isaacson,
            ___________________            ______________   _________________
        Charles A. Harvey, Jr., Christopher D. Byrne, Verrill & Dana, Peter J.
        ______________________  ____________________  ______________  ________
        Rubin, Diane S.  Lukac, and Bernstein, Shur,  Sawyer & Nelson were  on
        _____  _______________      _________________________________
        brief for appellees.

                                 ____________________

                                     July 7, 1993
                                 ____________________

        _____________________
        *Of the Federal Circuit,  sitting by designation.

FRIEDMAN,  Senior  Circuit Judge.   The  issue  in this  case, on
                     _____________________

          appeal  from the United States District Court for the District of

          Maine, 806 F. Supp. 1030 (D. Me. 1992), is whether the  

          Federal Insecticide,  Fungicide and  Rodenticide Act (FIFRA)  , 7

          U.S.C.    136-136y (1988), preempts  state tort law claims  based

          upon the  alleged failure of  the manufacturers of  herbicides to

          provide adequate warning language  on the products' labels, which

          the Environmental Protection Agency  (EPA) approved in accordance

          with FIFRA's  requirements.  The  district court held  that FIFRA

          preempts those state law claims.  We affirm. 

                                          I

                       The  plaintiffs, King  and Higgins  (and their wives)

          filed this diversity tort  damage suit against four manufacturers

          of chemical  herbicides.  Their second  amended complaint alleged

          that, as part of their duties as employees of the State of Maine,

          King  and  Higgins  were engaged  in  the  "seasonal spraying  of

          chemical  herbicides";  that  "[d]uring  the   chemical  spraying

          operations [they]  performed," King and Higgins  "were exposed to

          significant   amounts"   of    specified   "chemical    products"

          manufactured by the  defendants; and that, "as  the direct result

          of  their exposure  to  the herbicides,"  King  and Higgins  have

          suffered various ailments.  

                       The complaint contained two counts.  Count I  charged

          the defendants with negligence  because they "failed to warn  the

          Plaintiffs .  . .  of  the harm  and danger  of  exposure to  the

          chemical  products listed  above, failed  to  advise them  how to

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                                          2

safely use the products and failed to warn them of the long term,

          permanent physical  injuries which  would follow  said exposure."

          Count  II alleged strict liability and  tort theories, based upon

          the  defendants  having  "placed  into  the  stream  of  commerce

          unreasonably dangerous and defective chemical  products, rendered

          unreasonably dangerous by the  absence of an adequate warning  to

          the  ultimate consumers and users  thereof of the  short term and

          long  term permanent  physical injuries  resulting from  exposure

          thereto."   At oral  argument, the  plaintiffs admitted  that the

          sole basis  of their  complaint  was the  defendants' failure  to

          provide adequate warnings.

                       The parties  stipulated that  the labels  on all  the

          herbicides involved  had been  submitted to  and approved by  the

          EPA, as FIFRA required.  

                       The  district court  granted the  defendants'  motion

          for   summary  judgment,   holding  that   FIFRA  preempted   the

          plaintiffs' claims.  806 F. Supp. at 1037.   The court, following

          the preemption  standards the Supreme Court  applied in Cipollone
                                                                  _________

          v. Liggett Group, Inc., 112 S. Ct. 2608, 2617 (1992), held:
          ______________________

                            Because the  language of FIFRA
                            mandates the preemption of the
                            establishment  or  enforcement
                            or  any  common law  duty that
                            would   impose   a    labeling
                            requirement  inconsistent with
                            those established  by the Act,
                            or   the   EPA's  regulations,
                            Plaintiffs' common law failure
                            to  warn claims  are preempted
                            as a matter of law.  
          806 F. Supp. at 1037.

                                          II

                                         -3-
                                          3

A.   FIFRA provides a detailed  scheme for regulating

          the content of an  herbicide's label.  All herbicides sold in the

          United States must be registered for use by the EPA.   7 U.S.C.  

          136a(a).     The  EPA   has  promulgated  comprehensive  labeling

          requirements governing the scope,  content, wording and format of

          herbicide  labeling.  40 C.F.R.    156 (1992).   The manufacturer

          itself  designs and formulates the content of the label, and must

          file with  the EPA a  statement which  includes "the name  of the

          pesticide,"  "a complete copy of the labeling of the pesticide, a

          statement of all claims to be made for it and  any directions for

          its  use,"  and "a  full description  of the  tests made  and the

          results  thereof upon which  the claims are  based."  7  U.S.C.  

          136a(c)(1)(B)-(D).

                       Section 136v provides in pertinent part:

                            (a) In  general.  A  State may
                            regulate  the  sale or  use of
                            any    federally    registered
                            pesticide  or  device  in  the
                            State, but only if and  to the
                            extent the regulation does not
                            permit   any   sale   or   use
                            prohibited by this subchapter.

                            (b)  Uniformity.   Such  State
                            shall  not impose  or continue
                            in effect any requirements for
                            labeling   or   packaging   in
                            addition to  or different from
                            those   required   under  this
                            subchapter.

          Id.   136v.
          __

                       B.   Cipollone  recently  summarized  the   standards
                            _________

          governing preemption analysis:

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                                          4

The purpose of Congress is the
                            ultimate  touchstone  of  pre-
                            emption analysis.

                                 Congress'  intent may  be
                            explicitly   stated   in   the
                            statute's      language     or
                            implicitly  contained  in  its
                            structure and purpose.  In the
                            absence    of    an    express
                            congressional  command,  state
                            law is pre-empted if  that law
                            actually     conflicts    with
                            federal law, or if federal law
                            so   thoroughly   occupies   a
                            legislative  field as  to make
                            reasonable the  inference that
                            Congress left no room  for the
                            States to supplement it.

          Cipollone, 112 S. Ct. at  2617 (citations and internal quotations
          _________

          omitted).

                       Cipollone  involved similar  preemption provisions of
                       _________

          the   federal   statutes   governing   cigarette   labelling  and

          advertising.   The suit concerned a woman who died of lung cancer

          after smoking for many years.  It was a state  tort law diversity

          suit  against  the cigarette  manufacturers,  charging  them with

          responsibility for  her death because, among  other things, "they

          failed to warn  consumers about the hazards of smoking."   Id. at
                                                                     __

          2613.    The  defendants  contended that  the  Federal  Cigarette

          Labelling and Advertising Act  (1965 Act), Pub. L. No.  89-92, 79

          Stat. 282 (1965) (codified  as amended at 15 U.S.C.     1331-1340

          (1988)), and  its successor, the Public  Health Cigarette Smoking

          Act of  1969 (1969 Act), Pub.  L. No. 91-222, 84  Stat. 87 (1969)

          (codified as amended  at 15 U.S.C.     1331-1340), preempted  the

          claims.    Those  Acts  required  health  warnings  on  cigarette

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                                          5

packaging,  but  barred  the  requirement  of  such  warnings  in

          cigarette advertising. 

                       Section  5 of  the 1965 Act,  captioned "Preemption,"

          provided in relevant part:

                            (b)  No statement  relating to
                            smoking  and  health shall  be
                            required in the advertising of
                            any cigarettes the packages of
                            which    are    labeled     in
                            conformity with the provisions
                            of this Act.

          Federal  Cigarette  Labelling  and  Advertising  Act,  quoted  in
                                                                 __________

          Cipollone, 112 S. Ct. at 2616.
          _________

                       The Court  held that this  provision "only pre-empted

          state  and federal  rulemaking  bodies from  mandating particular

          cautionary  statements and  did  not pre-empt  state law  damages

          actions."  Cipollone, 112 S. Ct. at 2619 (footnote omitted).
                     _________

                       This provision was changed by the 1969 Act to read:

                            (b)      No   requirement   or
                            prohibition  based on  smoking
                            and  health  shall be  imposed
                            under  State law  with respect
                            to    the    advertising    or
                            promotion  of  any  cigarettes
                            the  packages   of  which  are
                            labeled in conformity with the
                            provisions of this Act.

          Public Health Cigarette Smoking Act of 1969, quoted in Cipollone,
                                                       _________ _________

          112 S. Ct. at 2616.  See also 15 U.S.C.   1334(b) (1988).
                               ________

                       The  Court held  that  this provision  preempted  the

          plaintiff's  state  law  tort  claims based  on  the  defendants'

          failure to warn of the  hazards of cigarette smoking.  The  Court

          stated  that  "[t]he  phrase  '[n]o  requirement  or prohibition'

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                                          6

sweeps  broadly  and  suggests no  distinction  between  positive

          enactments and  common law; to  the contrary, those  words easily

          encompass obligations  that take the  form of common  law rules."

          Cipollone, 112  S.  Ct.  at 2620.    It,  therefore,  "reject[ed]
          _________

          petitioner's   argument   that   the   phrase   'requirement   or

          prohibition' limits the 1969  Act's pre-emptive scope to positive

          enactments  by legislatures and agencies."   Id.   The Court held
                                                       __

          that "insofar  as  claims under  either  failure to  warn  theory

          require  a showing  that  respondents'  post-1969 advertising  or

          promotions  should  have  included  additional, or  more  clearly

          stated, warnings, those claims are pre-empted.  The Act does not,

          however,  pre-empt  petitioner's  claims  that  rely  solely   on

          respondents' testing  or  research  practices  or  other  actions

          unrelated to advertising or promotion."  Id. at 2621-22.
                                                   __

                       Only  four Justices  joined  in the  portion  of  the

          opinion that held that the 1969 Act preempted the failure to warn

          tort  claims.  In his opinion  concurring in the judgment in part

          and dissenting in part (in which Justice Thomas joined), however,

          Justice  Scalia  stated that  he  "agree[d]"  with the  following

          statements  in the plurality opinion:  "that 'the language of the

          [1969] Act plainly reaches  beyond [positive] enactments,';  that

          the  general  tort-law  duties  petitioner  invokes  against  the

          cigarette   companies   can,   as  a   general   matter,   impose

          'requirement[s] or  prohibition[s]' within the meaning  of   5(b)

          of the 1969 Act; and that the phrase 'State law'  as used in that

          provision embraces  state common  law."  Id.  at 2634  (citations
                                                   __

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                                          7

omitted).    Justice  Scalia   also  referred  to  the  plurality

          opinion's "correct disposition of petitioner's  post-1969 failure

          to  warn claims."    Id.  at  2637.    Justice  Scalia's  partial
                               __

          disagreement  with the plurality was that he would have held that

          the failure  to warn claims  under the  1965 Act and  all of  the

          claims under the 1969 Act were preempted.  Id. at 2632.
                                                     __

                       In these circumstances, the holding  in the plurality

          opinion that  the 1969 Act preempted  the plaintiff's failure-to-

          warn claim fairly can be said to constitute the view of the Court

          because six members  of the Court  concurred in that  conclusion.

          See Shaw  v. Dow Brands, Inc., No. 92-2323, 1993 WL 166324, at *6
          ___ ________________________

          n.4 (7th Cir. May 18, 1993).

                       The   Supreme  Court   itself   has   indicated  that

          Cipollone  applies to  FIFRA preemption  determinations.   In the
          _________

          Papas v.  Upjohn Co.  and Arkansas-Platte cases  discussed below,
          ___________________       _______________

          the  Court  vacated two  courts of  appeals judgments  that FIFRA

          impliedly preempted state law failure-to-warn claims and remanded

          for  those  courts to  reconsider  their  decisions in  light  of

          Cipollone.
          _________

                       B.   We  hold  that,  in  light  of  Cipollone, FIFRA
                                                            _________

          preempts  the plaintiffs'  state  law tort  claims  based on  the

          defendants' alleged  failure to  provide adequate  warnings about

          the health hazards of the herbicides they manufactured and sold.

                       The warnings  on the  labels of  the herbicides  King

          and Higgins used in spraying  were approved by the EPA, as  FIFRA

          required.  If  the plaintiffs  could recover on  their state  law

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                                          8

claims that, despite this labeling, the defendants had failed  to

          provide  adequate warning, those  additional warnings necessarily

          would be "in addition  to or different from those  required under

          this  subchapter."  7 U.S.C.   136v(b).  The question, therefore,

          is whether state law liability based upon  such defective warning

          would  constitute  the  "impos[ition]"   by  the  state  of  "any

          requirements for  labeling or  packaging" under section  136v(b).

          Id.
          __

                       Cipollone held that  the words in the 1969  cigarette
                       _________

          statute  "'[n]o   requirement  or  prohibition'  .   .  .  easily

          encompass[ed]  obligations  that  take  the form  of  common  law

          rules."   Cipollone,  112 S.  Ct.  at 2620.   The  FIFRA language
                    _________

          prohibiting the states from "impos[ing] or continu[ing] in effect

          any   requirements,"   7   U.S.C.       136v(b),   is   virtually

          indistinguishable from the  state-imposed "requirement"  language

          that Cipollone held  preempted the state  common law tort  claims
               _________

          based on inadequate warning.  FIFRA's language, too, preempts the

          state law lack-of-warning claims involved in this case.

                       The plaintiffs contend  that the reference in section

          136v(b) to "Such  State" means the state  described in subsection

          (a), namely, a state that has "regulate[d] the sale or use of any

          federally registered  pesticide."  From this,  they conclude that

          the prescription  provision of  subsection (b) covers  only state

          regulation,  but not  state common  law claims.   Subsection (a),

          however,  is a grant  of authority to the  states to regulate the

          "sale or use" of pesticides, not a limitation upon the preemptive

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                                          9

effect of subsection (b).  The word "Such" in subsection (b) does

          not  limit  to  state  regulation  the  state  "requirements  for

          labeling or packaging" which that section preempts.

                       The legislative  history  of the  1972 amendments  to

          FIFRA, which  added  section 136v  to the  statute, supports  our

          conclusion.   The Senate Committee Report on the provision stated

          that  section 136v(b)  "preempts  any State  or local  government

          labeling   or   packaging   requirements   differing   from  such

          requirements under  the Act."  S. Rep.  No. 92-970, 92d Cong., 2d

          Sess.  (1972), reprinted  in 1972 U.S.C.C.A.N.  4092, 4128.   See
                         _____________                                  ___

          also S. Rep. No. 92-838, 92d Cong., 2d Sess. 30 (1972), reprinted
          ____                                                    _________

          in  1972 U.S.C.C.A.N.  3993,  4021 (the  provision "preempts  any
          __

          State  labeling  or packaging  requirements  differing from  such

          requirements under the Act").  The House Committee Report stated:

          "[i]n  dividing the  responsibility  between the  States and  the

          Federal Government  for the management of  an effective pesticide

          program,  the Committee has adopted language which is intended to

          completely  preempt State  authority  in regard  to labeling  and

          packaging."   H.R.  Rep.  No. 92-511,  92d  Cong., 1st  Sess.  16

          (1971).  

                       Our  conclusion  accords with  the  decisions  of the

          three  courts of appeals that,  since Cipollone, have decided the
                                                _________

          question.

                       In Papas  v. Upjohn  Co., 926  F.2d  1019 (11th  Cir.
                          _____________________

          1991), the court held that FIFRA impliedly preempted state common

          law claims  based  upon inadequate  labeling.   On  petition  for

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                                          10

certiorari,  the  Supreme Court  vacated  the  court of  appeals'

          judgment and remanded the case for further consideration in light

          of Cipollone.   Papas,  112 S.  Ct. 3020 (1992).   On  remand the
             _________    _____

          court of  appeals concluded that "FIFRA  expressly preempts state

          common  law  actions  against  manufacturers   of  EPA-registered

          pesticides to  the extent  that such  actions  are predicated  on

          claims of inadequate  labeling or  packaging."   Papas, 985  F.2d
                                                           _____

          516, 520 (11th Cir. 1993).  The court stated:

                            Section    136v(b)   pre-empts
                            those  of  the Papases'  state
                            law  claims  which  constitute
                            "requirements for  labeling or
                            packaging  in  addition to  or
                            different from" the  labelling
                            and   packaging   requirements
                            imposed      under      FIFRA.
                            Cipollone  convinces  us  that
                            _________
                            the  term   "requirements"  in
                            section     136v(b)    "sweeps
                            broadly   and   suggests    no
                            distinction  between  positive
                            enactments   and  the   common
                            law."  Cipollone, at  ___, 112
                                   _________
                            S.Ct.  at  2620.   Common  law
                            damages awards are one form of
                            state regulation and, as such,
                            are "requirements"  within the
                            meaning of section  136v.   To
                            the  extent   that  state  law
                            actions  for   damages  depend
                            upon   a    showing   that   a
                            pesticide       manufacturer's
                            "labeling or packaging" failed
                            to   meet   a   standard   "in
                            addition to or different from"
                            FIFRA   requirements,  section
                            136v pre-empts the claims.

          Id. at 518 (citation omitted).
          __

                       In Arkansas-Platte  & Gulf Partnership  v. Van Waters
                          __________________________________________________

          & Rogers,  Inc., 959 F.2d  158 (10th Cir.  1992), the court  also
          ______________

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                                          11

held  that  "state tort  actions  based on  labeling  and alleged

          failure  to warn are impliedly preempted by  FIFRA as a matter of

          law."  Id. at 164.   On petition for certiorari the Supreme Court
                 __

          vacated the judgment  of the  court of appeals  and remanded  for

          that  court  to  reconsider  the  case  in  light  of  Cipollone.
                                                                 _________

          Arkansas-Platte,  113 S.  Ct. 314  (1992).   On remand  the court
          _______________

          "ADHERE[D]  to the  opinion  previously  announced."    Arkansas-
                                                                  _________

          Platte,  981 F.2d 1177, 1179 (10th Cir. 1993), petition for cert.
          ______                                         __________________

          filed, 61  U.S.L.W. 3789 (U.S. May 10,  1993) (No. 92-1784).  The
          _____

          Court stated:

                            [T]he  common  law duty  is no
                            less  a  "requirement" in  the
                            preemption scheme than a state
                            statute   imposing  the   same
                            burden.  . .  .   [T]he common
                            law duty to warn  is subjected
                            to the same federal preemptive
                            constraints    as    a   state
                            statute. . . .   To the extent
                            that state tort claims in this
                            case  require  a showing  that
                            defendants'    labeling    and
                            packaging should have included
                            additional,    different,   or
                            alternatively  stated warnings
                            from   those  required   under
                            FIFRA, they would be expressly
                            preempted.

          Id.
          __

                       In Shaw,  1993 WL  166324, the  Seventh Circuit  held
                          ____

          that FIFRA preempted  a state law claim  based on failure-to-warn

          of the dangers of a chemical stain remover.  The court stated:

                            In  order  to  succeed in  the
                            wake of  Cipollone, then, Shaw
                                     _________
                            would   have   to  show   that
                            FIFRA's  pre-emption  language
                            is  less   sweeping  than  the

                                         -12-
                                          12

language of the 1969 Cigarette
                            Act.   Yet  we can  discern no
                            significant   distinction   at
                            all--FIFRA  says  that "[s]uch
                            State shall not  impose *  * *
                            any requirements  for labeling
                            or packaging in addition to or
                            different from  those required
                            *  * *,"  while the  cigarette
                            law says "[n]o  requirement[s]
                            or     prohibition[s]    * * *
                            imposed under State law" shall
                            be   permitted.     Both  seem
                            equally   emphatic:      "[n]o
                            requirements  or prohibitions"
                            is just another way  of saying
                            a  "[s]tate  shall not  impose
                            * * * any  requirements."  Not
                            even the  most dedicated hair-
                            splitter   could   distinguish
                            these  statements.   If common
                            law  actions  cannot   survive
                            under the  1969 cigarette law,
                            then  common  law actions  for
                            labeling and packaging defects
                            cannot survive under FIFRA.

          Id. at *6.  
          __

                       C.   The  plaintiffs   rely  on  Ferebee  v.  Chevron
                                                        ____________________

          Chemical Co., 736 F.2d  1529 (D.C. Cir.), cert. denied,  469 U.S.
          ____________                              _____ ______

          1062  (1984).   There, the  plaintiff  became ill  and died  as a

          result of his exposure  to an herbicide he sprayed.  In affirming

          a jury verdict for the  plaintiff, the court held that FIFRA  did

          not  preempt the plaintiff's state law tort claims based upon the

          inadequacy of the  warning labels  on the herbicide.   The  court

          reasoned that "Chevron can comply with both federal and state law

          by continuing to use the EPA-approved label and by simultaneously

          paying  damages  to  successful   tort  plaintiffs  such  as  Mr.

          Ferebee."  Id. at 1541.
                     __

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                                          13

In  deciding  Ferebee,  the   District  of   Columbia
                                     _______

          Circuit  did  not  have  the   benefit  of  the  Supreme  Court's

          subsequent analysis and ruling in Cipollone.  It is impossible to
                                            _________

          predict  whether, in light of  Cipollone and the  other courts of
                                         _________

          appeals'  decisions discussed  above,  the District  of  Columbia

          Circuit would continue to follow Ferebee.  In any  event, for the
                                           _______

          reasons  set  forth  in this  opinion,  we  do  not find  Ferebee
                                                                    _______

          persuasive.

                       Affirmed.
                       ________

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