Yowell v. Chevron Chemical Co.

836 S.W.2d 62, 1992 Mo. App. LEXIS 1193, 1992 WL 158758

• Court: Missouri Court of Appeals
• Decided: July 13, 1992
• Docket: 17605
• Status: Published

Opinions

FLANIGAN, Chief Judge.

This is an action for the wrongful death of William Yowell, Jr., who died on September 5, 1985, allegedly as a result of his use of the pesticides Malathion and Orthene, manufactured by defendant Chevron Chemical Company. Plaintiffs are the surviving spouse, child and parents of decedent. The two-count petition was based on alternative theories of strict liability and negligence. Each count alleged that Chevron “did not give an adequate warning of the dangers” of the pesticides.

Chevron filed a motion for summary judgment on the ground that the two pesticides “are within the purview of the Federal Insecticide, Fungicide, Rodenticide Act, 7 U.S.C. Section 136 et seq. (FIFRA), and were properly registered with the Environmental Protection Agency.... Plaintiffs’ cause of action is pre-empted by Federal law.” The trial court sustained the motion and entered judgment against plaintiffs and in favor of Chevron. Plaintiffs appeal.

Plaintiffs’ brief states: “The chemical pesticides involved, Malathion and Orthene, are pesticides manufactured by respondent. Both substances are within the regulatory purview of FIFRA. Both chemicals are registered and labeled in accordance with the provisions of FIFRA and with the approval of the EPA.”

Plaintiffs’ sole point is that the trial court erred in entering the summary judgment because “there is a genuine issue of material fact to be determined by the jury concerning the adequacy of the warning provided by Chevron since a state product liability action is not barred by federal preemption under 7 U.S.C. § 136 et seq.”

7 U.S.C. § 136v reads, 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 subchap-ter.

Although plaintiffs’ point speaks generally of the “adequacy of the warning,” it is clear, by their pleadings in the trial court and their brief and argument here, that plaintiffs are attempting to challenge the adequacy of the warnings contained on the labels of the two pesticides. Plaintiffs admit that the labels were approved by the Environmental Protection Agency. The issue is whether a Missouri jury, under instructions in this tort action, could be permitted to find that the warnings contained in the respective labels are insufficient.

Plaintiffs’ brief says:

Even if one were to assume that FI-FRA pre-empts a state from requiring additional labeling requirements, this does not preclude the state imposing tort liability upon a manufacturer if an EPA-approved warning is found by the jury to be inadequate to warn a user of the product. The fact that Chevron may be required to pay damages to injured parties who are successful under a products liability theory based upon a failure to provide an adequate warning does not place Chevron in a position where it is impossible for them to comply with both state and federal law. Chevron clearly can continue to comply with the requirements of federal law and, at the same time, be required to compensate persons injured by their product.

For the reasons which follow, this court holds that plaintiffs’ cause of action based, as briefed and argued here, solely on alleged defective labeling, is barred by federal pre-emption under 7 U.S.C. § 136v(b), and that the trial court properly sustained Chevron’s motion for summary judgment.

The holding of this court is based on certain language, arguably dicta, in Wisconsin Public Intervenor v. Mortier, — U.S. -, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991), and the holding in Arkansas-Platte & Gulf v. Van Waters & Rogers, Inc., 959 F.2d 158 (10th Cir.1992), which was decided after Mortier. It is also supported by Papas v. Upjohn Co., 926 F.2d 1019 (11th Cir.1991), a pre-Mortier case. Another pre-Mortier case, which reached the opposite result, is Ferebee v. Chevron Chemical Company, 736 F.2d 1529 (D.C.Cir.1984). See generally 101 A.L.R. Fed. 887 (Federal pre-emption of state common law products liability claims pertaining to pesticides).

Article VI of the Constitution provides that the laws of the United States “shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Art. VI, cl. 2. Thus, since our decision in McCulloch v. Maryland, 4 Wheat, 316, 427 [4 L.Ed. 579] (1819), it has been settled that state law that conflicts with federal law is “without effect.”

Cipollone v. Liggett Group, Inc., — U.S. -, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992).

Consideration of issues arising under the Supremacy Clause “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.” Accordingly, “ ‘[t]he 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 preempted 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.’ ” Id. (Authorities omitted.)

Where pre-emption exists, it applies to state-court damages actions. International Paper Co. v. Ouellette, 479 U.S. 481, 107 S.Ct. 805, 813, 93 L.Ed.2d 883 (1987); Chicago N. W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 325-326, 101 S.Ct. 1124, 1134, 67 L.Ed.2d 258, 270 (1981); Arkansas-Platte, supra, at 161-162; Papas, supra, at 1022, 1024; Taylor v. General Motors Corp., 875 F.2d 816, 822 (11th Cir.1989). See Cipollone v. Liggett Group, Inc., supra, — U.S. -, 112 S.Ct. 2608, 120 L.Ed.2d 407 (Part V).

In Taylor the court said, at 824, n. 16:

The imposition of damages under state tort law has long been held to be a form of state regulation subject to the supremacy clause. As the Supreme Court explained in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), “regulation can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.” Id. at 247, 79 S.Ct. at 780.

Prior to Mortier, federal district courts split on the issue of whether 7 U.S.C. § 136v(b) precluded a challenge to the adequacy of a warning contained on an EPA-approved pesticide label in a products liability action based on common law. The division of authority existed in federal district courts in Missouri. See Fisher v. Chevron Chem. Co., 716 F.Supp. 1283 (W.D.Mo.1989) (pre-emption); Hurt v. Dow Chemical Co., 759 F.Supp. 556 (E.D.Mo.1990) (pre-emption); and Riden v. ICI Americas, Inc., 763 F.Supp. 1500 (W.D.Mo.1991) (no pre-emption). Additional citations to federal district court decisions, all predating Mortier, are set forth in Chemical Specialties Mfrs. Ass’n, Inc. v. Allenby, 958 F.2d 941, 948 (9th Cir.1992), and Papas, supra, at 1021, n. 1.

In Mortier, the Court held that FIFRA, 7 U.S.C. § 136 et seq., did not pre-empt the regulation of pesticides by local government. Although the facts in Mortier did not involve the adequacy of an EPA-approved label, the Court dealt with 7 U.S.C. § 136v(a) and (b), set forth earlier in this opinion.

As significant here, the court said, at 2486:

More importantly, field pre-emption cannot be inferred. In the first place, § 136v itself undercuts such an inference. The provision immediately following the statute’s grant of regulatory authority to the States declares that “[s]uch Státe shall not impose or continue in effect any requirements for labeling and packaging in addition to or different from those required under” FI-FRA, 7 U.S.C. § 136v(b). This language would be pure surplusage if Congress had intended to occupy the entire field of pesticide regulation. Taking such pre-emption as the premise, § 136v(a) would thus grant States the authority to regulate the “sale or use” of pesticides, while § 136v(b) would superfluously add that States did not have the authority to regulate “labeling or packaging,” an addition that would have been doubly superfluous given FIFRA’s historic focus on labeling to begin with. (Emphasis added.)

The court said, — U.S. at -, 111 S.Ct. at 2487:

As we have made plain, the statute does not expressly or impliedly preclude regulatory action by political subdivisions with regard to local use.... As we have also made plain, local use permit regulations — unlike labeling or certification — do not fall within an area that FI-FRA’s “program” pre-empts or even plainly addresses. (Emphasis added.)

In Arkansas-Platte, supra, the court agreed with Papas, supra, and held that state common law labeling claims are impliedly pre-empted by FIFRA, 7 U.S.C. § 136v(b). The court discussed Mortier, and quoted most of the language from Mortier set forth above. At 163 the court said:

Thus, the Supreme Court reasoned Congress had not occupied the entire field of pesticide regulation, instead leaving intact the state’s historic police powers to consider regional and local factors in regulating use. The Court indicated, however, Congress had impliedly preempted state regulation in the more narrow area of labeling. While the holding of Mortier is confined to the regulation of pesticides by local governments, id. [— U.S. at -] 111 S.Ct. at 2479, we are nevertheless inclined to adopt its construction of FIFRA. (Emphasis in original.)

At 160 the court said: “A plain reading of the statute indicates an intent to maintain the traditional police powers of the states in the general grant of authority to ‘regulate the sale or use’ of pesticides, § 136v(a), and a more specific intent to occupy the field in labeling and packaging, § 136v(b).”

That construction of § 136v(b) is supported by the fact that Congress, in 1988, amended that provision to insert the caption “Uniformity.”

Other post-Mortier cases consistent with the holding in Arkansas-Platte are Chemical Specialties Mfrs. Ass’n, Inc. v. Allenby, supra, 958 F.2d at 942, 944; Young v. American Cyanamid Co., 786 F.Supp. 781 (E.D.Ark.1991), and Worm v. American Cyanamid Company (1991 WL 144328 (D.Md.). Contra, Montana Pole & Treating Plant v. I.F. Laucks, 775 F.Supp. 1339 (D.Mont.1991), criticized in Arkansas-Platte at 163, n. 6.

In AUenby the court said, at 944:

So long as additional labeling is not required, FIFRA expressly authorizes state pesticide regulation. Other than regulating labels, states are left free to impose whatever restrictions they may wish. Consequently, a state could prohibit the sale of a pesticide within its borders even though it could not require the manufacturer of the pesticide to change the label.

Ferebee is the principal pre-Mortier case relied on by plaintiffs. This court agrees with the following comments contained in Arkansas-Platte at 161-162:

Ferebee distinguished between the “direct” injunction against the states’ imposing labeling requirements and requirements which might be imposed through state common law. Id. The court reasoned the EPA’s determination that Chevron’s label was adequate “for FIFRA purposes does not compel a jury to find that the label is also adequate for purposes of state tort law_” Ferebee, 736 F.2d at 1540 (emphasis in Fere-bee). Ferebee further stated:

The verdict itself does not command Chevron to alter its label — the verdict merely tells Chevron that, if it chooses to continue selling paraquat in Maryland, it may have to compensate for some of the resulting injuries. That may in some sense impose a burden on the sale of paraquat in Maryland, but it is not equivalent to a direct regulatory command that Chevron change its label....

Ferebee, 736 F.2d at 1541.

We do not accept this “choice of reaction” analysis. A business choice between paying damages and changing the label is only notional. As the First Circuit stated in Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir.1987):

Once a jury has found a label inadequate under state law, and the manufacturer liable for damages for negligently employing it, it is unthinkable that any manufacturer would not immediately take steps to minimize its exposure to continued liability. The most obvious change it can take ... is to change its label.

Id. at 627-28. This choice cannot be consistent with FIPRA’s preclusion of “any requirements for labeling or packaging in addition to or different from” the statutory mandate. 7 U.S.C. § 136v(b).

This court also agrees with the following language in Arkansas-Platte at 164:

We therefore hold state tort actions based on labeling and alleged failure to warn are impliedly preempted by FIFRA as a matter of law. This is by virtue of the direct conflict posed with federal uniform regulation of pesticides, and because we believe Congress intended to occupy the field of pesticide labeling regulation. We base our holding on the language of § 136v, our rejection of the Ferebee court’s “choice of reaction” analysis, and our understanding of the Supreme Court’s construction of FIFRA in Mortier.

This court also agrees with the following language in Papas at 1026:

A jury’s imposition of damages in a state tort suit premised on labeling claims would disrupt the methods by which FIFRA protects man and the environment because it would inject irrelevant considerations into the EPA’s evaluation of a pesticide and its labeling and would second guess the EPA’s conclusions.

Allowing state common law tort actions based on labeling claims would permit state court juries to do what state legislatures and state administrative agencies are forbidden to do: impose requirements for labeling pesticides.

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We hold that FIFRA impliedly preempts state common law tort suits against manufacturers of EPA-registered pesticides to the extent that such actions are based on claims of inadequate labeling. (Emphasis in original.)

In Arkansas-Platte, the plaintiff had state tort claims against the defendant in addition to the claim based on labeling and failure to warn. The court of appeals held that defendants were entitled to summary judgment on the claims based on labeling and failure to warn but remanded for further proceedings with respect to the other state tort claims.

In this court, plaintiffs do not assert that they have any claims for tort liability of Chevron other than the pre-empted claim of inadequate labeling. Plaintiff’s reply brief in this court states:

Plaintiffs’ action was based upon Chevron’s failure to provide an adequate warning of the dangers of its chemical products, Malathion and Orthene. Both products bore EPA approved labels in accordance with FIFRA. Plaintiffs assert that those EPA approved labels do not provide an adequate warning of the chemicals’ dangers under Missouri products liability doctrines.

It follows that the judgment should be affirmed rather than affirmed with remand.

The judgment is affirmed.

MONTGOMERY, J., concurs. SHRUM, P.J., dissents and files dissenting opinion.