King v. E.I. Dupont ( 1993 )


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  • 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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    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

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    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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    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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    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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    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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    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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    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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    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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    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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    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

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    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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    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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