AKEE v. DOW CHEMICAL CO. No. 00-CV-382BMK.
272 F.Supp.2d 1112 (2003)
Linda AKEE et al., Plaintiffs, v. THE DOW CHEMICAL COMPANY, et al., Defendants.
United States District Court, D. Hawai`i.
July 21, 2003.
Theodore G. Meeker, Office of U.S. Atty., Honolulu, HI, Robert D. McCallum, Jr., U.S. Dept. of Justice Civ. Div. Torts Branch, Washington, DC, for U.S., defendant.
ORDER GRANTING SHELL'S MOTIONS FOR SUMMARY JUDGMENT, AND GRANTING IN PART, AND DENYING IN PART, DOW'S MOTION FOR SUMMARY JUDGMENT, AND GRANTING DOLE'S MOTION FOR SUMMARY JUDGMENT ON COUNT IV
KURREN, United States Magistrate Judge.
Before the Court, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, is Shell Oil Company's, Shell Petroleum Inc.'s, Shell Chemical Company's, and Shell Chemicals, Ltd.'s ("Shell" or the "Shell Defendants") and The Dow Chemical Company's ("Dow") Motions for Summary Judgment on the remaining claims of Plaintiffs' Third Amended Complaint. In addition, before the Court, pursuant to Rules 12(c) and 56(c) of the Federal Rules of Civil Procedure, is Dole Food Company's ("Dole") Motion to Dismiss Count IV of the Third Amended Complaint on the Pleadings, or, in the alternative, Motion for Summary Judgment.
According to Plaintiffs, as early as 1955, Shell manufactured and sold D-D and DBCP which are nematocides or pesticides ("the Shell products") to Dole, Del Monte and Libby.
Plaintiffs' Third Amended Complaint alleges nine causes of action against each of the Defendants: (I) negligence; (II) breach of express and implied warranties; (III) strict liability; (IV) failure to warn; (V) ultra-hazardous activities; (VI) negligent infliction of emotional distress; (VII) negligence per se; (VIII) unfair or deceptive practices; and (IX) wrongful death. In an order dated December 17, 2002, this Court dismissed Count VII (negligence per se) and Count VIII (unfair or deceptive practices) as against all of the Defendants. In addition, in a separate order dated December 17, 2002, this Court dismissed Count V (ultrahazardous activities) as against Dow, the Shell Defendants, and Great Lakes. Finally, in an order dated May 23, 2003, this Court dismissed Counts II (breach of warranty) and III (strict liability) as against Dole, the Del Monte Defendants, and Libby.
Shell and Dow argue that the remaining claims in Plaintiffs' Third Amended Complaint are preempted by the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136 et seq., because each claim is premised on allegedly inadequate warnings or insufficient product labeling or packaging. Moreover, Shell and Dow argue, to the extent that
Plaintiffs oppose Shell's and Dow's motions for summary judgment arguing that the remaining claims in the Third Amended Complaint are not preempted by FIFRA, because Shell's and Dow's products' labels "do not play a part in this case." In addition, Plaintiffs argue, to the extent their remaining claims arise from exposure to Shell's and Dow's products resulting from a sale or use prior to October of 1972, the claims are not preempted by FIFRA. Further, Plaintiffs assert, Shell and Dow are estopped from relying on FIFRA preemption as a defense to Plaintiffs' state law claims, because both entities deliberately concealed information about their respective products. Finally, Plaintiffs contend, summary judgment for either Shell or Dow is inappropriate, because it will result in "piecemeal" disposition of Plaintiffs' claims.
In Dole's motion, Dole argues that it is entitled to dismissal of Count IV (failure to warn), because it is not a manufacturer or seller of any of the pesticide products at issue in this lawsuit, and hence, it had no duty to warn Plaintiffs. Alternatively, Dole argues, it is entitled to summary judgment on Count IV because: (1) it had no duty to warn Plaintiffs since any warnings would have been futile; and/or (2) FIFRA preempts the failure to warn claim. Plaintiffs respond arguing that Count IV should not be dismissed as against Dole, because Dole is "sued as a landowner, not a manufacturer." Moreover, Plaintiffs argue, Count IV is not preempted by FIFRA, because Dole is not a pesticide registrant under FIFRA. Finally, Plaintiffs argue, to the extent Plaintiffs' failure to warn claims against Dole arise from Dole's pesticide use prior to 1972, the claims are not preempted, because FIFRA did not include a preemption provision before that date.
A. Summary Judgment Standard
A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact and that the undisputed facts warrant judgment for the moving party as a matter of law. Fed.R.Civ.P. 56(c). In assessing whether a genuine issue of material fact exists, courts must resolve all ambiguities and draw all factual inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc.,
The party opposing a motion for summary judgment cannot stand on mere allegations in its pleadings, or simply assert that it will be able to discredit the moving party's evidence at trial. Fed.R.Civ.P. 56(e); see also T.W. Elec. Serv. Inc. v. Pacific Elec. Contractors Ass'n,
In 1947, Congress enacted FIFRA as a pesticide licensing and labeling statute to replace the Insecticide Act of 1910. See Wisconsin Public Intervenor v. Mortier,
Following the 1972 amendments, FIFRA became a comprehensive statute regulating the use, sale and labeling of pesticides. See, e.g., Taylor AG Indus. v. Pure-Gro,
FIFRA does not prescribe the exact contents of pesticide labels, however, the EPA approves each label only after a careful review of the product data and draft label. 7 U.S.C. § 136a(c)(5); see also Taylor, 54 F.3d at 560; Worm, 5 F.3d at 747 (FIFRA establishes an involved process of EPA review culminating in approval of the label under which a pesticide may be marketed). After a label has been approved, generally, manufacturers are prohibited from changing the label without the consent of the EPA. 7 U.S.C. § 136j(a)(2)(A); see also Jarman v. United Indus. Corp.,
As part of the 1972 amendments, Congress added an express preemption provision to FIFRA, which prohibits states from imposing labeling or packaging requirements that are in addition to, or different from, those required by FIFRA. 7 U.S.C. § 136v(b). As a result, state common law claims are preempted by FIFRA if the legal duty that forms the basis of the claim imposes a state labeling requirement
C. Preemption of Pre-1972 Exposure Claims
As noted, Plaintiffs contend that Shell's D-D and DBCP products were sold and used in Hawaii as early as 1955. Moreover, Plaintiffs contend, Dow's DBCP products were sold and used in Hawaii some time before 1964. Thus, Plaintiffs argue, because FIFRA's preemption clause was not effective until October of 1972, any of Plaintiffs claims arising out of exposure to Dow's and Shell's products from as early as 1955 through October 1972 are not preempted. In other words, according to Plaintiffs, this Court may not retroactively apply 7 U.S.C. § 136v(b) to preclude any of Plaintiffs' claims arising from a pre-October 1972 sale or use of Dow's and Shell's products. The Court disagrees.
First, this Court is guided by the rule that generally, a court applies the law in effect at the time the court renders its decision. See Southwest Center for Biological Diversity v. U.S. Dep't of Agriculture,
Plaintiffs contend that Shell and Dow are estopped from relying on FIFRA preemption as a defense, because they intentionally concealed information about their respective products from Plaintiffs and the EPA. Plaintiffs' argument is to no avail. Although a failure to provide all relevant information to the EPA may violate FIFRA, FIFRA preemption is not dependent upon compliance with EPA regulations or FIFRA's provisions. See Dow Chem. Co. v. Ebling,
E. Count I Negligence
Count I of the Third Amended Complaint alleges that Shell and Dow were negligent in storing, mixing, using, releasing, distributing, spraying, disposing, applying, designing, testing, studying, manufacturing, producing, monitoring, formulating, packaging, labeling, and delivering their respective products. (Pl. Third Am. Compl. ¶ 18.) Beyond the conclusory allegations of the complaint, Plaintiffs fail to offer any evidence that Shell or Dow stored, mixed, used, released, sprayed, disposed of, or applied their products at any time on Oahu. Moreover, Plaintiffs fail to offer evidence to support a negligent monitoring or delivery claim against either Shell or Dow. Accordingly, the Court grants Shell's and Dow's motions for summary judgment on Count I to the extent it alleges that they negligently stored, mixed, used, released, sprayed, disposed of, applied, delivered, or monitored their respective products. The remaining claims of Count I are addressed in more detail below.
1. Negligent Distribution
Plaintiffs assert that Dow negligently distributed its products in 1977.
Dow does not specifically address how or why this claim is preempted by FIFRA. Moreover, the Court does not see anything in the record before it suggesting that this claim is in any way a labeling or warning based claim. Accordingly, the Court finds that Plaintiffs' negligent distribution claim against Dow is not preempted by FIFRA. As a result, Dow's motion for summary judgment on Count I, to the extent it seeks dismissal of the negligent distribution claim, is denied. However, Plaintiffs submit absolutely no evidence to support a claim of negligent distribution against Shell. Accordingly, Shell is entitled to summary judgment on Count I to the extent it asserts a claim for negligent distribution of the Shell products.
2. Negligent Labeling and/or Packaging
The gravamen of Plaintiffs' negligent labeling and packaging claims is that Shell and Dow failed to include adequate warnings and/or instructions on their respective products' labels and/or packaging. For example, Plaintiffs allege that in labeling its products, Shell failed to consider the risks of air and water contamination posed by the products. (Shell's Concise Stmt. in Support of Summary Judgment on D-D, Declaration of Dale W. Lee ("Lee Decl."), Ex. B at 9.)
3. Negligent Design and/or Formulation
4. Negligent Testing and/or Studying
Claims for negligent testing that are based solely upon a manufacturers' testing or research practices are not preempted by FIFRA. See, e.g., Taylor, 54 F.3d at 561. However, negligent testing claims based on a failure to warn theory are preempted by FIFRA, because such claims require a showing that the manufacturer should have included additional or more clearly stated warnings. Id. A negligent testing claim will be deemed a disguised failure to warn claim if the manufacturer could remedy the problems that would have been revealed by adequate testing with alterations to the product's label. See Wright, 599 N.W.2d at 673. Thus, to determine whether Plaintiffs' negligent testing claims are based on a failure to warn theory or Shell's and Dow's research and testing practices, the Court examines Plaintiffs' testing allegations.
Plaintiffs contend that prior to marketing D-D and DBCP in Hawaii, Shell negligently failed to research whether
As evidence in support of the alleged negligent testing claim against Dow, Plaintiffs submit a copy of Shell's Responses to Plaintiffs' Request for Admissions, (Pl. Resp. Stmt. in Opp. to Dow's Motion for Summary Judgment, Stanford Decl., Ex. B.) Of course, Shell's admissions and/or denials are not evidence against Dow. When asked about the discrepancy at oral argument, Plaintiffs' counsel attributed the submission of Shell's answers to oversight or misjudgment. Nonetheless, the record before the Court remains devoid of any admissible evidence to support Plaintiffs' negligent testing claim against Dow. Accordingly, Dow's motion for summary judgment on Plaintiffs' negligent testing claim is also granted.
5. Negligent Manufacturing and/or Production
Dow concedes, as a general proposition, that in many cases a negligent manufacturing claim is not preempted by FIFRA. The Court agrees. However, that is not enough to save Plaintiffs' negligent manufacturing claims in this case, because the record before the Court lacks any evidence to support such claims against either Shell or Dow. Indeed, when asked in Shell's interrogatories to explain the basis of the negligent manufacturing claim, Plaintiffs avoided a direct statement, and instead, resorted to repetition of various general allegations given in response to other interrogatories.
In sum, Shell's motions for summary judgment on Count I of the Third Amended Complaint are granted and Count I is dismissed in its entirety. With respect to Dow, the Court grants Dow's motion for summary judgment on Count I only in part, and dismisses all of the claims in Count I except for the negligent distribution claim.
F. Count II Breach of Express and Implied Warranties
Count II of the Third Amended Complaint alleges that Shell and Dow breached express and implied warranties related to their respective products. (Pl. Third Am. Compl. ¶ 23.) FIFRA preempts express warranty claims when the alleged warranty statements do not vary from information provided by a manufacturer in the product labels or as part of other product information. Taylor, 54 F.3d at 556. However, an express warranty claim may be maintained if the alleged warranty statements fall outside of the scope of the product's label or other information. Id. at 563.
Here, the Court finds that both Shell and Dow are entitled to summary judgment on Plaintiffs' express warranty claims, not because of FIFRA preemption, but because there is no evidence in the record to support such claims. Plaintiffs do not articulate what, if any, express warranties were given by Shell or Dow in connection with the sale of their respective products. Moreover, there is no specification of the terms of the alleged warranties, nor are the sources of the warranties identified. Indeed, Plaintiffs' opposition is completely silent on this point. Accordingly, the Court grants Shell's and Dow's motions for summary judgment on Plaintiffs' express warranty claims.
Plaintiffs also contend that Shell and Dow breached implied warranties that their respective products were suited for use on Oahu's soil and climate. (Pl. Memorandum in Opp. to Shell's Motion for Summary Judgment on D-D at 16;Pl. Memorandum in Opp. to Dow's Motion for Summary Judgment at 14.) Such implied warranty claims are preempted by FIFRA. See e.g., Taylor, 54 F.3d at 563; see also National Bank of Commerce v. Dow Chem. Co.,
G. Count III Strict Products Liability
In Count III, Plaintiffs allege that Shell and Dow are strictly liable to Plaintiffs, because their respective products were defectively designed, formulated, produced and manufactured. (Pl. Third Am. Compl. ¶ 25).
1. Strict Liability Design Defect Claims
According to Plaintiffs, Shell's and Dow's products were defectively designed, because they are volatile and highly persistent in the soil. (Shell's Concise Stmt. in Support of Summary Judgment on D-D, Lee Decl., Ex. B at 11-12;
Under Hawaii law, to impose strict liability because of a design defect, a plaintiff must prove that the product was used in an intended or reasonably foreseeable manner, that the manufacturer breached its duty by producing a dangerously defective product, and that the defect was the proximate cause of plaintiff's injuries. See, e.g., Lau v. Allied Wholesale, Inc.,
Under the consumer expectations test, a product is defectively designed if the plaintiff establishes that it failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. See Ontai, 66 Haw. at 240-41,
In this case, the Court finds that Plaintiffs are foreclosed from establishing a strict liability design defect claim through use of the consumer expectations test, because such a claim is preempted by FIFRA. See Papike v. Tambrands, Inc.,
Similarly, the Court finds that Plaintiffs may not use Hawaii's version of the risk-utility test to prove a design defect in this case. Unlike some jurisdictions, Hawaii's version of the risk-utility test contemplates that the jury will consider the adequacy of a product's warnings in weighing the risks of a product against the product's benefits. See, e.g., Tabieros, 85 Hawai'i at 366,
2. Strict Liability Manufacturing Defect Claims
Plaintiffs also allege that Shell and Dow are strictly liable for manufacturing defects in their respective products. A product is defective by virtue of a manufacturing defect when the product departs from its intended design. More specifically, under Hawaii law, to establish a manufacturing defect, Plaintiffs must prove that Shell's and Dow's products did not conform to the quality of other Shell and Dow products at the manufacturing stage. See Wagatsuma, 10 Haw.App. at 564, n. 6,
H. Count IV Failure to Warn
Count IV of the Third Amended Complaint alleges that Shell and Dow failed to provide sufficient and adequate warnings, instructions, safeguards and notices to Del Monte, Dole and Libby concerning the release, storage, use, application, mixture, and distribution of their products. (Pl. Third Am. Compl. ¶ 27.) In order to prevail on these claims, Plaintiffs must demonstrate that the information on the labels and/or packaging of Shell's and Dow's products was insufficient, and that different labels or packaging were required to protect Plaintiffs. In other words, in assessing these claims, the jury would be asked to examine the adequacy of Shell's and Dow's products' labeling and packaging. Such an inquiry is precisely what is prohibited by FIFRA, and thus, the failure to warn claims are preempted.
Further, Plaintiffs allege that Shell and Dow, as well as Dole, Libby and the Del Monte Defendants, failed to provide adequate warnings, instructions, safeguards and notices to Plaintiffs and the general public regarding the allegedly lethal dangers of the EDB, D-D, and DBCP products. (Pl. Third Am. Compl. ¶ 28.) According to Plaintiffs, these claims survive FIFRA preemption, because Plaintiffs never saw the products' labels or packaging, and thus, the claims are not premised on the adequacy of warnings. In other words, according to Plaintiffs, FIFRA does not preempt failure to warn claims brought by innocent bystanders who have never seen or used the allegedly offending products. The Court disagrees.
For Shell and Dow to meet the duty to warn that Plaintiffs allege exists, Shell and Dow would be forced to disseminate to Plaintiffs, either directly or indirectly through product users, some written product information and/or warnings. As a result, the effect of these claims would be state law imposition of additional or different labeling and/or packaging requirements for Shell's and Dow's products than those required by FIFRA. Such a result is prohibited, and thus, the claims are preempted. See, e.g., Eyl v. Ciba-Geigy Corp.,
Additionally, in the Ninth Circuit, a failure to warn claim against a pesticide user such as Dole is preempted by FIFRA for the same reasons that it is preempted against the manufacturers. According to the Ninth Circuit, the FIFRA preemption analysis focuses not on whom the legal duty is imposed, but rather, on whether the legal duty sought to be imposed constitutes a state law requirement to provide information different from, or in addition to, that required by FIFRA. See Taylor, 54 F.3d at 561, fnt. 3. Thus, if a jury concluded that Dole had a duty to warn Plaintiffs about the allegedly harmful effects of the pesticide products it used, that decision would be tantamount to state imposition of labeling or warning requirements different from, or in addition to, those required by FIFRA. Such state regulation of pesticide labeling is prohibited by FIFRA, and hence, Plaintiffs' failure to warn claim against Dole is also preempted.
In sum, Shell's, Dow's and Dole's motions for summary judgment on Count IV are granted on the ground that the claims stated therein are preempted by FIFRA.
I. Count VI Negligent Infliction of Emotional Suffering & Count IX Wrongful Death
In Count VI, Plaintiffs allege that they suffered "shock, pain and suffering, and mental and emotional distress by witnessing the illnesses, injuries, and or wrongful deaths of their family members." (Pl. Third Am. Compl. ¶ 32.) In Count IX, Plaintiffs allege a wrongful death claim. (Pl. Third Am. Compl. ¶¶ 38-43.) According to Dow, these claims are derivative in nature and must be dismissed, because all of Plaintiffs' substantive claims are preempted by FIFRA. Dow is correct that Counts VI and IX are derivative of Plaintiffs' substantive claims. See Torres v. Northwest Eng'g Co.,
Based on the foregoing, Shell's motions for summary judgment on D-D and DBCP are granted in their entirety, and the remaining counts of Plaintiffs' Third Amended Complaint (Counts I, II, III, IV, VI, and IX) are dismissed as against Shell. Further, Dow's motion for summary judgment is granted in part, and denied in part. More specifically, the Court grants Dow's motion for summary judgment on
IT IS SO ORDERED.
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