NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KISSAN BERRY FARM, a general No. 82774-0-I partnership, (consolidated with No. 82775-8-I, No. 82776-6-I, No. 82777-4-I, and Appellant, No. 82778-2-I)
v. DIVISION ONE WHATCOM FARMERS COOP, a/k/a WFC, a/k/a Whatcom Farmers Co-op, a Washington corporation; CHS INC., a foreign corporation; and SYNGENTA CROP PROTECTION, LLC, a foreign PUBLISHED OPINION limited partnership, a/k/a Syngenta US, a/k/a Syngenta,
Respondents.
G&B FARM, a partnership, and G&B GROWERS, LLC, a limited liability company,
Appellants,
v.
WHATCOM FARMERS COOP, a/k/a WFC, a/k/a Whatcom Farmers Co-op, a Washington corporation; CHS INC., a foreign corporation; and SYNGENTA CROP PROTECTION, LLC, a foreign limited partnership, a/k/a Syngenta US, a/k/a Syngenta,
Respondents. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/2
JS BERRY FARM, LLC, a limited liability company,
Appellant,
WHATCOM FARMERS COOP, a/k/a WFC, a/k/a Whatcom Farmers Co-op, a Washington corporation; CHS INC., a foreign corporation; and SYNGENTA CROP PROTECTION, LLC., a foreign limited partnership, a/k/a Syngenta US, a/k/a Syngenta,
KEN SIDHU FARMS, LLC, a limited liability company
WHATCOM FARMERS COOP, a/k/a WFC, a/k/a Whatcom Farmers Co-op, a Washington corporation; CHS INC., a foreign corporation; and SYNGENTA CROP PROTECTION, LLC, a foreign limited partnership, a/k/a Syngenta US, a/k/a Syngenta,
MALUKA FARM, a general partnership,
WHATCOM FARMERS COOP, a/k/a WFC, a/k/a Whatcom Farmers Co-op, a Washington corporation; CHS INC., a
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/3
foreign corporation; and SYNGENTA CROP PROTECTION, LLC, a foreign limited partnership, a/k/a Syngenta US, a/k/a Syngenta,
Respondents
SMITH, A.C.J. — Five farms sued Syngenta Crop Protection LLC,
manufacturer of the herbicide Callisto, and Whatcom Farmers Coop and its
successor entity, CHS Inc., Callisto’s distributors, for damages allegedly caused
to their raspberry crops. The trial court dismissed, finding the Federal
Insecticide, Fungicide and Rodenticide Act preempted the farms’ two express
warranty claims. The farms appeal that dismissal and associated denials of their
motions to amend their complaints, supplement briefing, and several related
motions to reconsider those rulings.
Because Bates v. Dow Agrosciences LLC, 544 U.S. 431, 125 S. Ct. 1788,
161 L. Ed. 2d 687 (2005) superseded Washington precedent holding Federal
Insecticide, Fungicide and Rodenticide Act preempts express warranty claims,
we reverse. FACTS Events Leading to Litigation
In 2012, five raspberry farms in Whatcom County—Kissan Berry Farm,
Ken Sidhu Farms LLC, JS Berry Farm LLC, G&B Farm & G&B Growers LLC, and
Maluka Farm—purchased the herbicide Callisto on the basis of representations
made by Aaron Bagwell, a representative of Whatcom Farmers Coop (WFC). As
WFC’s “field man,” Bagwell was known and trusted by the farms, was familiar
with their crops and equipment, and frequently made suggestions about best
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/4
practices. Though the exact nature of Bagwell’s statements is in dispute,1 their
general character is not: Bagwell recommended Callisto’s use for weed control in
their raspberry fields and represented that it was “safe” to use on red raspberry.
Callisto is an herbicide manufactured by Syngenta. Its EPA2-approved
labeling—which fills a 31-page booklet—includes a number of disclaimers and
warranties and provides detailed descriptions of the product’s uses and dangers.
Its general disclaimer is located close to the front of the booklet and
begins by stating that “[t]he Directions for Use of this product must be followed
carefully. It is impossible to eliminate all risks inherently associated with the use
of this product.” It then specifies particular risks: Crop injury, ineffectiveness or other unintended consequences may result because of such factors as manner of use or application, weather or crop conditions, presence of other materials or other influencing factors, in the use of the product, which are beyond the control of SYNGENTA CROP PROTECTION LLC or Seller.
It specifies that, to the extent permissible under relevant law, “Buyer and User
agree to hold SYNGENTA and Seller harmless for any claims relating to such
factors.”
The booklet continues directly into Syngenta’s warranty, which
incorporates by reference some of the language of the disclaimer: SYNGENTA warrants that this product conforms to the chemical description on the label and is reasonably fit for the purposes stated in the Directions for Use, subject to the inherent risks referred to above, when used in accordance with directions under normal use conditions.
1 Because of the posture of this case, which is appealed from a grant of
summary judgment, all facts are viewed in the light most favorable to the farms. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). 2 U.S. Environmental Protection Agency.
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/5
Similar in structure to the disclaimer, the warranty—“[t]o the extent permitted by
applicable law”—disavows any liability for use contrary to the labeling instructions
or under conditions not reasonably foreseeable. It ends by denying availability of
“incidental, consequential, or special damages,” limiting remedy to the purchase
price of the product.
The booklet’s “Directions for Use”—incorporated in both the disclaimer
and warranty language quoted above—include directions specific to red
raspberries. They state: “Callisto may be applied as a pre-bloom post-directed
spray in . . . red raspberry.” They prescribe an application rate of no more than
two fluid ounces per acre per year in “bush or caneberries,” and direct that if two
applications are made they should be separated by at least two weeks.
Bagwell recommended an application of two fluid ounces per acre. The
farms purchased the herbicide from Bagwell and applied it at two fluid ounces
per acre. Syngenta admits that this application is “consistent” with the product
guide’s instructions.
About two weeks after application, raspberry plants at each of the farms
began to exhibit signs of damage and then die. Bagwell, asked by some of the
farms to assess the harm and its cause, indicated that he suspected Callisto.
Representatives from Syngenta subsequently visited the farms, and the farms
report that they confirmed Callisto was the likely cause. The farms’ owners
replanted their fields to different degrees, accruing a range of costs. They allege
that Callisto’s lingering effects on their land affected not only their 2012 crop yield
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/6
but also demonstrably reduced their production capacity for several years
thereafter.
History of Litigation
In 2016, each farm separately sued3 Syngenta, WFC, and CHS Inc., which
had merged with WFC in 2015. The complaints were structured similarly,
alleging against WFC/CHS and Syngenta a series of breaches of express
warranty arising both from Bagwell’s comments to the farms and from Callisto’s
labeling. The first claim, against WFC, identified Bagwell’s oral representations
as giving rise to an express warranty upon which the plaintiffs relied. The second
claim incorporated the oral express warranty claim against CHS in its capacity as
WFC’s corporate successor, having inherited WFC’s assets and liabilities post-
merger. The third claim asserted that WFC was acting as Syngenta’s agent
when selling Callisto, and that Syngenta, through that agency relationship and
Bagwell’s oral representations, shared liability under the oral express warranty
theory.
The fourth and final claim concerned an express warranty theory not
premised on Bagwell’s representations. Instead, this claim—brought against
Syngenta in its capacity as the booklet’s author—relied on the express warranty
language of the Callisto product guide. The claim’s language, which the litigation
process would eventually subject to considerable scrutiny, included several
portions of particular note. It contended that “[a]lthough the booklet . . .
3 The five lawsuits were eventually consolidated for purposes of discovery
and dispositive motions.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/7
contained some safety warnings about the handling and application of Callisto, it
contained no warnings of any kind that if Callisto were applied to control weeds in
areas where raspberry plants were being grown that there was a risk that it could
cause harm to the plants.” (Emphasis added.) The same paragraph of the
complaints quoted the express warranty language of the product guide, and the
following paragraph quoted the guide’s statement that Callisto could be applied
“as a pre-bloom post-directed spray in . . . red raspberry.” The complaints
concluded that “[t]he printed representations set forth in paragraphs 37[, the
express warranty language,] and 38, [on application to raspberries,] when
considered in combination, constitute an express warranty by Syngenta that, as
long as the application directions were properly followed, Callisto would not
cause harm to raspberry plants.”
Though the lawsuits were initiated in March 2016, the Syngenta summary
judgment motion that serves as the main vehicle for this appeal was not brought
until December 2020. The motion framed only one issue: “[w]hether Plaintiffs’
express warranty claims against Syngenta and CHS are preempted by [the
Federal Insecticide, Fungicide and Rodenticide Act4 (FIFRA)] because to prevail,
the Court would have to impose requirements in addition to or different from the
requirements imposed by FIFRA and approved by the EPA.” However, the
motion also briefly contended that the farms had not produced any evidence of
an agency agreement between Syngenta and WFC and that their “agency
allegation” should therefore be dismissed.
4 7 U.S.C. §§ 136-136y.
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/8
WFC and CHS perfunctorily joined Syngenta’s motion for summary
judgment, adding no argument but asserting that “[b]ased on the same law,
argument, and evidence . . . [WFC] and CHS Inc[.] are also entitled to summary
judgment.” The farms’ response did not address Syngenta’s agency argument,
instead focusing on “the single issue before the court”: preemption.
Syngenta and WFC/CHS both filed substantive replies, the latter making
new arguments. Syngenta’s reply addressed the supposed inadmissibility of
declaration evidence submitted by the farms in support of their response. It also
repeated its preemption arguments and reasserted that the famers failed to
provide evidence supporting the existence of an agency relationship. WFC/CHS
contended in their reply that they could not be held liable for “claims relating to a
product’s labeling when said claims could not be maintained against the actual
manufacturer.” WFC/CHS also asserted, for the first time, that Bagwell’s oral
representations were merely affirmations of the value of Callisto, and therefore
insufficient to create an express warranty independent from that included in
Callisto’s label.5
After submission of all the summary judgment briefing, but before the
motion’s noted date of argument, the farms sought permission to submit
supplemental briefing to buttress their preemption argument. The farms’ attorney
stated that his “intention was not to submit additional argument, certainly not
5 We note that arguments raised for the first time in a reply brief are not
properly before the court because they do not permit the nonmoving party the opportunity to respond. White v. Kent Med. Ctr., Inc., 61 Wn. App. 163, 168, 810 P.2d 4 (1991).
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/9
additional facts,” but instead “basically some case law” regarding the federal
preemption issue. The court reserved ruling but permitted the parties to submit
copies of the federal cases they had already cited, to which it did not have
access. Then, still before the court heard the summary judgment motion, the
farms moved for leave to file a second amended complaint.
The court heard argument on the summary judgment and amendment
motions together. The court, based on its reading of the Callisto label, raised two
new issues sua sponte. It pointed to the warranty’s broad language that “there is
no guarantee. There can always be some harm to crops.” And the court also
pointed to the warranty provision limiting compensation for any harm to the cost
of the product refunded.
At the conclusion of the hearing, the court reserved ruling and later
entered written orders denying the motion to amend the complaint and granting
Syngenta’s motion for summary judgment, dismissing all claims with prejudice.
The farms moved for the court to reconsider its rulings on the two motions. They
contended among other things that neither of the first two causes of action
pleaded—concerning oral express warranty claims against WFC and CHS—was
subject to preemption or agency arguments. The court denied the
reconsideration motions.
The farms appeal.
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/10
ANALYSIS Supplemental Briefing
We first conclude that the court acted within its discretion when it denied
the farms’ motion to submit supplemental briefing at summary judgment.
CR 56(c) requires a party responding to a motion for summary judgment
to file responsive documents no later than 11 calendar days before the noted
hearing date. CR 6(b) permits the trial court to, at its discretion and where cause
is shown, extend this time.
Here, the farms filed a response to Syngenta’s motion for summary
judgment before requesting that they be able to supplement their argument,
functionally asking for permission to extend their time to submit responsive
briefing. Their motion asserted that their original response had been rushed
because it was prepared around the holidays, and consequently had insufficiently
addressed Syngenta’s arguments.
The court did not abuse its discretion by requiring the farms’ adherence to
the usual rules of motion practice.
Motion for Summary Judgment
The parties’ arguments, both in the trial court and on appeal, center on
whether FIFRA preempts state express warranty claims. We hold that it does
not, and that Washington case law to the contrary has been superseded by a
subsequent decision of the United States Supreme Court: Bates, 544 U.S. 431.
We review summary judgment de novo, considering the evidence and
reasonable inferences drawn from it in the light most favorable to the nonmoving
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/11
party. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). Summary
judgment is appropriate only when no genuine issue exists as to a material fact
and the moving party is entitled to summary judgment as a matter of law. Keck,
184 Wn.2d at 370. “A material fact is one that affects the outcome of the
litigation.” Owen v. Burlington N. Santa Fe R.R., 153 Wash.2d 780, 789, 108
P.3d 1220 (2005).
1. Preemption Generally
The Supremacy Clause of the United States Constitution dictates that “the
laws of the United States . . . shall be the supreme law of the land; and the
judges in every state shall be bound thereby, any thing in the Constitution or laws
of any state to the contrary notwithstanding.” U.S. CONST., art. VI, cl. 2. State
law that conflicts with federal law is accordingly “without effect.” Maryland v.
Louisiana, 451 U.S. 725, 746, 101 S. Ct. 2114, 68 L. Ed. 2d 576 (1981).
Preemption analysis “ ‘start[s] with the assumption that the historic police powers
of the States [are] not to be superseded by . . . Federal Act unless that [is] the
clear and manifest purpose of Congress.’ ” Cipollone v. Liggett Grp., Inc., 505
U.S. 504, 516, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992) (alterations in original)
(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 91
L. Ed. 1447 (1947)).
Preemption may occur expressly or implicitly. Express preemption
involves explicit preemptive language in a statute. Wisconsin Pub. Intervenor v.
Mortier, 501 U.S. 597, 604-05, 111 S. Ct. 2476, 115 L. Ed. 2d 532 (1991).
Analyzing courts “ ‘focus on the plain wording of the [preemption] clause’ ” to
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/12
determine its scope. Puerto Rico v. Franklin California Tax-Free Tr., 579 U.S.
115, 125, 136 S. Ct. 1938, 195 L. Ed. 2d 298 (2016) (quoting Chamber of Com.
of U.S. of Am. v. Whiting, 563 U.S. 582, 594, 131 S. Ct. 1968, 179 L. Ed. 2d
1031 (2011). “Congress’ enactment of a provision defining the pre-emptive
reach of a statute implies that matters beyond that reach are not pre-empted.”
Cipollone, 505 U.S. at 517.
In the absence of express preemptive language, Congress’s intent that a
statute supersede state law may be implicit. Rice, 331 U.S. at 230. This occurs,
for instance, where a statute “regulates conduct in a field that Congress intended
the Federal Government to occupy exclusively.” English v. Gen. Elec. Co., 496
U.S. 72, 79, 110 S. Ct. 2270, 110 L. Ed. 2d 65 (1990). It may also occur where
there is an actual conflict between state and federal law such that “it is
impossible for a private party to comply with both state and federal
requirements.” English, 496 U.S. at 79. This latter sort of implied preemption is
sometimes called “impossibility pre-emption.” Wyeth v. Levine, 555 U.S. 555,
573, 129 S.Ct. 1187, 173 L. Ed. 2d 51 (2009).
Because of the inferences necessarily involved in determining Congress’s
implicit intent, there is a “ ‘strong presumption against finding preemption in an
ambiguous case.’ ” Progressive Animal Welfare Soc’y v. Univ. of Wash., 125
Wn.2d 243, 265, 884 P.2d 592 (1994) (quoting Wash. State Physicians Ins.
Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 326, 858 P.2d 1054 (1993). This
presumption is stronger still “ ‘with state regulation regarding matters of health
and safety,’ in which states have traditionally exercised their sovereignty.” Hue v.
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/13
Farmboy Spray Co., Inc., 127 Wn.2d 67, 78-79, 896 P.2d 682 (1995) (quoting
Fisons Corp., 122 Wn.2d at 327. Our state Supreme Court “adhere[s] to a
rigorous analysis of the preemption issue because of [its] continuing desire to
uphold state sovereignty to the maximum extent, tempered only by the mandate
of the Supremacy Clause of the United States Constitution.” Hue, 127 Wn.2d
at 77.
2. FIFRA
Respondents to this appeal contend that FIFRA both expressly and
impliedly, by way of impossibility, preempts Washington State express warranty
causes of action. FIFRA is a federal statute that regulates “the use, as well as
the sale and labeling, of pesticides[6]; regulate[s] pesticides produced and sold in
both intrastate and interstate commerce; provide[s] for review, cancellation, and
suspension of registration and g[ives] EPA” considerable enforcement authority.
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991, 104 S. Ct. 2862, 81 L. Ed. 2d
815 (1984).
Any manufacturer “seeking to register a pesticide must submit a proposed
label to EPA as well as certain supporting data.” Bates, 544 U.S. at 438;
7 U.S.C. §§ 136a(c)(1)(C), (F). On the basis of that submission, the EPA will
consider whether the pesticide meets the claims made about its use, 7 U.S.C.
6 Callisto, though referred to as an herbicide, is classified as a pesticide
under FIFRA. See 7 U.S.C. §§ 136(t), (u) (defining pesticides as substances intended for preventing, destroying, repelling, or mitigating any pest, including fungi and weeds, or, “intended for use as a plant regulator, defoliant, or desiccant”). It has received EPA approval and is therefore subject to FIFRA’s labeling requirements.
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/14
§ 136a(c)(5)(A), or will cause unreasonably adverse effects the environment,
including economic, social, or dietary harms, 7 U.S.C. §§ 136a(c)(5)(C), (D),
136(bb). The EPA also considers whether the pesticide’s proposed label meets
various statutory and regulatory requirements. 7 U.S.C. § 136a(c)(5)(B); 40 CFR
§ 152.112(f) (2004). A pesticide is “misbranded” if its label is out of compliance
with any of a number of statutory directives, such as making any “false or
misleading” statement or omitting directions for use or necessary warnings.
7 U.S.C. §§ 136(q)(1)(a), (F), (G). The EPA will not approve registration under
FIFRA if it determines the product is misbranded. 40 CFR § 152.112(f). And no
pesticide may enter the market without first being approved for registration by the
EPA. 7 U.S.C. § 136a(a). Once a product has been approved, change in
labeling that concerns information about the product’s efficacy is subject to re-
approval. 7 U.S.C. §§ 136a(c)(9)(C)(iii), (f)(1); 40 C.F.R. §§ 152.44, 152.46.
FIFRA contains provisions directly addressing the role of the states in its
regulatory scheme, including an express preemption clause: (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.
7 U.S.C. § 136v.
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/15
Both our Supreme Court and our court of appeals have addressed
subsection (b), the express preemption clause. In three cases decided together
in 1995, our Supreme Court determined that the “requirements” it references
include both statutory mandates and certain duties arising under state common
law. Hue, 127 Wn.2d at 85-86 (preempting inadequate warnings and instructions
claims, products liability claims based on the label, and failure to warn claims);
Goodwin v. Bacon, 127 Wn.2d 50, 51, 896 P.2d 673 (1995); All-Pure Chem. Co.
v. White, 127 Wn.2d 1, 3, 12, 896 P.2d 697 (1995). The Court did not directly
address FIFRA preemption of express warranty claims, though Hue did note that
precedent upon which it heavily relied held “the duty underlying a breach of
express warranty claim was . . . voluntarily assumed, not ‘imposed under state
law.’ ” 127 Wn.2d at 81 (quoting Cipollone, 505 U.S. at 526. But two years later
this court, relying on a body of federal case law, extended Hue, Goodwin, and
All-Pure by finding that FIFRA preempts express and implied warranty, consumer
protection, and certain negligence claims. Didier v. Drexel Chem. Co., 86 Wn.
App. 795, 799-806, 938 P.2d 364 (1997). Washington courts have not
addressed FIFRA preemption since 2002, in Eriksen v. Mobay Corp., 110 Wn.
App. 332, 41 P.3d 488 (2002) (applying existing case law).
In the meantime, however, the United States Supreme Court has directly
addressed FIFRA’s express preemption in Bates. 544 U.S. at 439. The Court
concluded that “[r]ules that require manufacturers to design reasonably safe
products, to use due care in conducting appropriate testing of their products, to
market products free of manufacturing defects, and to honor their express
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/16
warranties or other contractual commitments plainly do not qualify as
requirements for ‘labeling or packaging.’ ” Id. at 444 (quoting 7 U.S.C.
§ 136v(b)). It held that FIFRA’s express preemption clause did not preempt the
farmers’ defective design, defective manufacture, negligent testing, and breach
of express warranty claims against an herbicide manufacturer. Id. at 444.
Specifically addressing express warranty claims, Bates said: To be sure, Dow’s express warranty was located on Strongarm’s label. But a cause of action on an express warranty asks only that a manufacturer make good on the contractual commitment that it voluntarily undertook by placing that warranty on its product. . . . [T]his common-law rule does not require the manufacturer to make an express warranty.”
Id. at 444-45. It rejected an argument that a finding of liability would “induce” the
defendant manufacturer to alter its label because “an event, such as a jury
verdict, that merely motivates an optional decision is not a requirement.” Id.
at 445.
3. Application in this Case
Because Bates has superseded Hue, Goodwin, All-Pure, and Didier, we
conclude that FIFRA does not preempt the farms’ express warranty claims either
expressly or impliedly. This conclusion conforms not only with Bates but also
with Washington’s reluctance to limit its own power through an overly broad
application of the Supremacy Clause, especially in the context of the state’s
traditional authority to regulate matters of health and safety.
We reject the argument made by Syngenta and WFC/CHS that the United
States Supreme Court’s 2013 decision in Mutual Pharmaceutical Company, Inc.
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/17
v. Bartlett requires a different holding. 570 U.S. 472, 133 S. Ct. 2466, 186 L. Ed.
2d 607 (2013). In Bartlett, the court held that the Federal Food, Drug, and
Cosmetic Act (FDCA) preempts state law design defect claims against
manufacturers premised on the labeling of generic drugs. 570 U.S. at 490. It did
not rely on any express preemption clause in so doing—the FDCA’s treatment of
generic drugs does not have one. Bartlett, 570 U.S. at 493. Instead, it found
implied impossibility preemption because “state-law design-defect claims . . . that
place a duty on manufacturers to render a drug safer by either altering its
composition or altering its labeling are in conflict with federal laws that prohibit
manufacturers from unilaterally altering drug composition or labeling.” Bartlett,
570 U.S. at 490. The Court was addressing the prohibition against generic drugs
using labels that deviate substantively from the already approved brand name
drug’s labeling. Bartlett, 570 U.S. at 477; 21 C.F.R. § 314.94(a)(8)(iii).
Bartlett is inapposite. Bates is directly on point, interpreting FIFRA rather
than a different statutory scheme. Bates only explicitly addressed express
preemption. 544 U.S. at 442-54. But its reasoning that common law does not
require manufacturers to offer express warranties applies with similar force to
establish that there is no conflict between FIFRA and the common law that
makes following both impossible. Bates, 544 U.S. at 444-45, 49 (“If Congress
had intended to deprive injured parties of a long available form of compensation,
it surely would have expressed that intent more clearly.”). The impossibility
found in Bartlett, in contrast, centered on the lockstep labeling requirements to
which the FDCA holds generic drugs; no such restriction exists here. Indeed,
17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/18
FIFRA permits relabeling. 7 U.S.C. § 136a(f)(1); 40 C.F.R. §§ 152.44, 152.46.
Finally, FIFRA contains an express preemption clause. Congress, by directly
addressing the matter and speaking on the bounds of preemption, created a
presumption against a finding of implied preemption. Cipollone, 505 U.S. at 517.
Distinguishing Bartlett is consistent with similar treatment from a number
of other courts. See Hassett v. Dafoe, 74 A.3d 202 (Pa. Super. Ct. 2013) (FIFRA
did not preempt failure to warn claim); Ansagay v. Dow Agrosciences LLC, 153
F. Supp. 3d 1270 (D. Haw. 2015) (FIFRA did not preempt products liability
claims); Bourbia v. S.C. Johnson & Son, Inc., 375 F. Supp. 3d 454, 464
(S.D.N.Y. 2019) (FIFRA did not preempt express warranty claim); Crespo v. S.C.
Johnson & Son, Inc., 394 F. Supp. 3d 260, 277 (E.D.N.Y. 2019) (FIFRA did not
preempt express warranty claim); Carson v. Monsanto Co., 508 F. Supp. 3d
1369, 1377 (S.D. Ga. 2020) (FIFRA did not preempt express warranty and
products liability claims).
We therefore conclude that FIFRA does not preempt the farms’ express
warranty claims.
4. Interpretation of Express Warranty
Respondents argue in the alternative that, regardless of this court’s
decision as to preemption, the express warranty’s limiting language provides a
separate ground for dismissal.7 Because determination of that limiting
7 This issue was not raised in the summary judgment briefing below. It was first raised sua sponte by the trial court during the summary judgment hearing. We address it here because we can affirm on any basis supported by the record and because the matter has been briefed by the parties on appeal.
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/19
language’s applicability would involve us making factual findings, it does not
provide an independent basis on which to affirm the trial court’s dismissal at
summary judgment.
The Uniform Commercial Code, Title 62A RCW, allows for the creation
and limitation of express warranties. Express warranties are created by “[a]ny
affirmation of fact or promise made by the seller to the buyer which relates to the
goods and becomes part of the basis of the bargain.” RCW 62A.2-313.
Language limiting the express warranty “shall be construed wherever reasonable
as consistent” with the language of the warranty itself. RCW 62A.2-316(1). But
“negation or limitation [of the warranty by a disclaimer] is inoperative to the extent
that such construction is unreasonable.” RCW 62A.2-316(1). Thus, where the
strict language of a disclaimer would function to negate an express warranty in its
entirety, rather than limit it to certain circumstances, that negation is
unreasonable and inoperative.
Here, there is arguably some ambiguity in Callisto’s language limiting its
express warranty. The disclaimer reads: It is impossible to eliminate all risks inherently associated with the use of this product. Crop injury, ineffectiveness or other unintended consequences may result because of such factors as manner of use or application, weather or crop conditions, presence of other materials or other influencing factors in the use of the product, which are beyond the control of SYNGENTA CROP PROTECTION LLC or Seller. . . . Buyer and User agree to hold SYNGENTA and Seller harmless for any claims relating to such factors.
Davidson Serles & Assocs. v. City of Kirkland, 159 Wn. App. 616, 624, 246 P.3d 822 (2011).
19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/20
To the extent that the disclaimer’s first sentence may be read to negate the effect
of the express warranty,8 it is inoperative. Reasonable construction of the
disclaimer’s language so that it remains consistent with the express warranty is,
however, possible if it is read to limit the application of the express warranty to
instances where influencing factors beyond the control of Syngenta are not
present.
We conclude that the disclaimer language in Callisto’s packaging does not
negate the existence of the express warranty. Because the question of whether
any relevant influencing factor is present is not properly before us and would
involve this court in fact finding, we do not reach it.
Motions to Amend Complaints and Motions for Reconsideration
The farms contend that the court abused its discretion by denying their
motion to amend their complaints. They also challenge the trial court’s denial of
their motions for reconsideration regarding its rulings on summary judgment and
on their motions to amend. Because we have concluded that the farms’ express
warranty claims are not preempted, and because the purpose of the motions to
8 The express warranty applies where the Directions for Use have been
followed, subject to the “inherent risks” referred to in the disclaimer. Because the parties do not contest whether the farmers abided by the directions—they did— we are concerned only with the effect of the disclaimer language.
20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82774-0-I/21
amend was to circumvent the impact of a finding of preemption,9 we do not reach
these issues.10
We reverse and remand.
WE CONCUR:
9 The farms admit that reversal of the summary judgment order renders
“moot” the issue of whether the motion to amend was properly decided. 10 We do not address respondents’ argument that appellants’ claims are,
despite presentation as express warranty claims in the complaint, in fact disguised failure to warn claims. A case’s theories of recovery are defined by its complaint. CR 8(a). The action’s success is determined by the plaintiff’s ability to prove facts supporting those theories. Cedar River Water & Sewer Dist. v. King County, 178 Wn.2d 763, 779, 315 P.3d 1065 (2013). Here, the farms’ theory of recovery is not the defendants’ to choose. We also do not address respondents’ contention that Bagwell’s statements were insufficient to give rise to an express warranty. Where, as here, it appears that there are disputed issues of fact regarding the content of statements allegedly giving rise to an express warranty, we cannot rule on the warranty’s existence as a matter of law. Fed. Signal Corp. v. Safety Factors, Inc., 125 Wn.2d 413, 423-24, 886 P.2d 172 (1994). We are doubly reluctant to address this matter because it was not raised adequately in front of the trial court. See supra note 5. Other issues, such as the limitation of damages or whether WFC acted as Syngenta’s agent, were raised or addressed only in passing in the parties’ briefing or were not properly preserved for appeal. “Passing treatment of an issue . . . is insufficient to merit judicial consideration.” Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996). We therefore do not address these issues.