A Summary of a Recent
Judicial Development in
Pesticides
Disclosure of Opinions of
Non-Testifying Experts Is Upheld
Jeffrey A. FeirickNational AgLaw Center Graduate Fellow
A federal district court has upheld an EPA rule requiring pesticide registrants to report facts known and opinions held by non-testifying experts as to the dangers of registered pesticides. American Crop Protection Ass’n. v. United States Envtl. Protection Agency, 182 F. Supp.2d 89, 93 (D.D.C. 2002). The EPA rule was promulgated pursuant to the EPA’s regulatory authority over pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§136-136y.
The FIFRA requires all pesticides to be registered before they are marketed. The EPA cannot register a pesticide unless it has determined that the pesticide will “perform its intended function without unreasonable adverse effects on the environment.” Id. §136a(c)(5)(c)). In addition, a pesticide’s registration can be suspended if it “generally causes unreasonable adverse effects on the environment . . . when used in accordance with widespread and commonly recognized practice. . . .” Id. § 136d(a)(2)(b). Thus, once a pesticide is registered, the EPA can request additional data about that registered pesticide. See id. § 136a(c)(2)(B)(i). Failure to provide the requested documentation can result in the EPA suspending the pesticide’s registration. See id. §136a(c)(2)(B)(iv). Finally, the FIFA contains a self-reporting requirement. Sec. 136d(a)(2) provides that if “at any time after registration of a pesticide the registrant has additional factual information regarding unreasonable adverse effects on the environment of a pesticide, the registrant shall submit such information to the [EPA] Administrator.” Id. § 136d(a)(2). See generally Elizabeth C. Brown et al., Pesticide Regulation Deskbook 32 (Envtl. L. Institute 2000).
In 1997, the EPA issued final rules implementing the FIFRA self-reporting requirement codified at § 136d(a)(2). American Crop Protection Ass’n, 182 F. Supp.2d at 91 (citing 62 Fed. Reg. 49,370 (Sept. 19, 1997)(final rules codified at 40 C.F.R. Part 159). These rules require a registrant to report certain information about its registered pesticide, including information that a registrant “knows or reasonably should know” might cause the EPA concern over continuing the pesticide’s registration. Id. (quoting 40 C.F.R. §159.195). One of these rules, 40 C.F.R. § 159.158(a), specifies that, subject to certain exceptions, a pesticide registrant must report
In American Crop Protection Ass’n, the American Crop Protection Association, the Chemical Manufacturers Association, and the American Corporate Counsel Association challenged § 159.158(a). They contended that the EPA lacks the statutory authority to mandate the submission of opinions because FIFRA § 136d(a)(2) only gives the EPA authority to require the reporting of “factual information,” not “opinions.” The plaintiffs also argued that § 159.158(a) unreasonably impairs the attorney work-product doctrine and the attorney-client privilege by mandating the submission of opinions of non-testifying experts prepared in anticipation of litigation. Id. at 89-90.
After the action was commenced, the EPA issued a notice stating that it did not consider attorney legal theories as reportable. Id. at 91 (citing Pesticide Registration Notice 2000-8). The EPA, however, declined to broadly exempt information covered by the attorney work-product doctrine. Id. (citing 62 Fed. Reg. 49,377 (Sept. 19, 1997)). In its submissions to the court, the EPA stated that “'[a]ttorneys’ opinions are reportable . . . when they are developed in the ordinary course of business and are based on otherwise reportable information.’” Id. (quoting Def.’s Mem. at 25 n.16). Although the EPA permits registrants to seek waivers of the reporting requirement, no registrant has sought a waiver. Id. (citing 62 Fed. Reg. 49,377 (Sept. 19, 1997)).
The court began its analysis by first considering the plaintiffs’ contention that § 159.158(a) exceeded the authority given to the EPA by FIFRA § 136d(a)(2). Applying the two-step approach required by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984), the court first considered whether the term “factual information” used in § 136d(a)(2) was clear and unambiguous. Under Chevron, only if the statute was not clear and unambiguous could the court reach the second question of whether the challenged rule was a permissible construction of the statute. See id. at 91-93.
The court concluded that the words “factual information” were not clear and unambiguous, and the distinction between facts and opinions is “fuzzy” and “‘at best, one of degree.’” Id. (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, (1988)). It noted that “[e]xpert witness reports typically contain both data and conclusions” and that “[t]he existence of an opinion be said to be a fact.” Id. The court then provided an example of “factual information” by observing that when a pathologist sees lesions on slides that he believes are malignant and takes the next logical step of concluding that the lesions were caused by exposure to a pesticide, this conclusion is “‘factual information.’” Id.
After finding that the statute was not clear and unambiguous, the court turned to the second step of Chevron by considering “whether the agency’s [interpretation] is based on a permissible construction of the statute.” Id. at 92 (quoting Chevron, 467 U.S. at 843). In doing so, the court prefaced its analysis by noting that an agency’s interpretation of an ambiguous statute is entitled to “ordinary deference” and is to be given “‘controlling weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute.’” Id. (quoting Chevron, 467 U.S. at 844)(footnote omitted).
The plaintiffs argued that EPA’s interpretation of “factual information” was not a permissible construction of the statute because the interpretation derogates the common law cannons of attorney-client privilege and work product protection without congressional authorization to do so. See id. at 92-93. The EPA responded by asserting that the work-product doctrine protects attorney’s legal theories strategies and opinions, not reports created by others. Id. The EPA also argued that exempting opinions from non-testifying experts was an exception created by the Federal Rules of Civil Procedure not common law. See id. (citing Fed. R. Civ. P. 26(b)(4)(B)). Finally, the EPA maintained that allowing this work product privilege would jeopardize EPA’s ability to protect health and the environment. See id.
The court opined that, in essence, the plaintiffs’ claim was about whether a non-testifying expert, working on a product liability case involving a registered pesticide, would be required to disclose his or her opinion, thereby releasing protected information to the public and opposing parties. See id. at 93. After noting that the record did not contain the facts to apply the plaintiffs’ arguments, the court used the facts in United States v. Gold, 470 F.Supp. 1336 (N.D. Ill. 1979) as a factual example. In that case, a pesticide registrant was indicted for submitting the only report out of four independent reports made that found no adverse pesticide results. The other three reports were withheld because they reached dramatically different conclusions from the first report. The court surmised that if the plaintiffs in the defense of a product liabilities suit commissioned the same four reports, they would claim these reports were protected work product. See id.
The court expressed its doubt that, outside of the context of litigation, the three reports would be protected because the reports did not contain the strategies or opinions of counsel. It noted that “[f]acts known and opinions held by non-testifying experts, by themselves, are not privileged and are not work product.” Id. It also observed that Federal Rule of Civil Procedure 26(b)(4) enacted in 1970 refused to accept the idea that expert opinions are privileged and subject to the attorney work product exception. See id. (citing the Advisory Committee Notes to Rule 26, 1970 Amend., subd. (b)(4)).
Based on the record before it, the court upheld EPA’s construction of FIFRA § 136d(a)(2) as found in the challenged regulation, 40 C.F.R. § 159.158. It excluded from this conclusion, however, “any particular claim of attorney-client privilege or work product protection . . . because none has been presented.” Id. Thus, according to the court, “[t]he claim of ‘encroachment’ on privilege is not ripe for decision.” Id. (citations omitted).