Summary of a Recent
Judicial Development in
Pesticides

Farmer's Product Liability Claim
Preempted by the FIFRA

Brian J. Oakey
National AgLaw Center Graduate Fellow

The Washington State Court of Appeals has affirmed a decision that held that a landowner's product liability claim was preempted by the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136-136y ("FIFRA"). Eriksen v. Mobay Corp., 41 P.3d 488, 493-95 (Wash. Ct. App. 2002). The claim was premised on the "consumer expectations" test, a standard that requires the plaintiff to show that the product was less safe than the ordinary consumer would expect. Id. at 494. Under this test, the existence of government-mandated product labels are relevant because their contents bear on the question of what a reasonable, ordinary consumer is justified in expecting. See id. Here, the product was labeled as required by the FIFRA. See id. The court observed that "[t]he FIFRA is a comprehensive scheme that details the requirements a pesticide manufacturer must meet, including warnings and precautionary statements," and it "specifically preempts conflicting state law causes of action that would impose a duty to provide a warning that is different or in addition to its requirements under the federal scheme." Id. at 495. Reasoning that it would be "anomalous" for the plaintiff to claim that a consumer was justified in expecting the product to perform more safely than revealed by its label, the court held that the claim was preempted by the FIFRA. Id.

Peter Eriksen, the plaintiff, lived on and farmed a 180 acre, organically certified farm located in Grant County, Washington. See id. at 490. In August of 1991, while Eriksen was working in his field, he observed the aerial application of pesticides to his neighbor's potato fields. See id. Shortly thereafter, Eriksen's sister appeared and warned him of the chemicals moving onto his property. See id. At this time there was a detectible air current moving towards his property. See id. The plaintiff subsequently experienced "burning eyes, a burning throat, headache and general listlessness." Id.

The pesticide applicator was immediately contacted about the problem and the application on the neighboring fields stopped. See id. Three days later the pesticide application resumed and was viewed by Eriksen and a friend of the pilot. See id. No wind current was detectible during the application of the pesticide on the later application. See id. Shortly after the application was completed, however, Eriksen noticed a slight wind. See id. Approximately five to ten minutes following the completion of the pesticide application, Mr. Eriksen detected an odor he associated with a chemical known as Monitor. See id. He subsequently began suffering from the same symptoms he experienced during the first pesticide application. See id.

In 1994, Eriksen filed suit against Bayer Corporation, which was the manufacturer of Monitor, neighboring landowners, and the chemical applicators involved in the aerial application of the pesticide. See id. Ericksen alleged that he suffered damages resulting from the pesticide exposure and brought claims based on negligence, strict liability, trespass, and product liability. See id. at 489.

The trial court dismissed the product liability claim on the grounds that it was preempted by the FIFRA. See id. The remaining claims were scheduled for trial but were dismissed when the plaintiff failed to personally appear for trial. See id. Eriksen appealed both the summary judgment dismissal and the dismissal for failure to appear to the Washington State Court of Appeals. See id. Eriksen later conceded that "his only viable claim against Bayer was for a design defect based on the consumer expectation theory." Id. at 493.

The court explained that the FIFRA "requires the manufacturer, as the primary registrant, to register with the Environmental Protection Agency ("EPA") all labeling and packaging for the regulated chemical." Id. at 493. See also 7 U.S.C. § 136 (1994). The court also explained that all labels must include warnings, precautionary statements, and directions for use that are adequate to protect the public from harm, including "personal injury." Erickson, 41 P.3d at 493 (citing 40 C.F.R. §§ 156.10, 156.10(i)(1)(i) (2001)). Finally, the court observed that "[t]he FIFRA 'preempt[s] conflicting state law causes of action that impose a duty to provide a warning in addition to or different from federally established labeling requirements.'" Id. (quoting Lescs v. Dow Chem. Co., 976 F.Supp. 393, 397 (W.D. Va. 1997) (citation omitted), aff'd sub nom. Lescs v. William R. Hughes, Inc., 168 F.3d 482 (4th Cir. 1999).

The court noted that a plaintiff who seeks to establish liability on the part of a manufacturer under the Washington product liability statute, Wash. Rev. Code § 7.72.030, may do so in two ways. Id. at 494. The first is "by showing that, at the time of manufacture, the likelihood that the product would cause the plaintiff's harm or similar harms, and the seriousness of those harms, outweighed the manufacturer's burden to design a product that would have prevented those harms and any adverse effect a practical, feasible alternative would have on the product's usefulness." Id. (citing Wash. Rev. Code § 7.72.030(1)(a)). Alternatively, a plaintiff may "use the 'consumer expectations' test, which requires the plaintiff to show that the product was 'unsafe to an extent beyond that which would be contemplated by the ordinary consumer.'" Id. (quoting Falk v. Keene Corp., 782 P.2d 974 (Wash. 1989) (citing Wash. Rev. Code § 7.72.030(3)). The court noted that "[u]nder the consumer expectations tests, expectations are judged against the reasonable expectations of the ordinary consumer." Id. at 494 (citing Soproni v. Polygon Apartment Partners, 971 P.2d 500 (Wash. 1999)).

In affirming the trial court's dismissal of the plaintiff's claim based on the consumer expectations test, the court concluded that the trial court had properly relied on the reasoning in Lescs v. Dow Chem. Co., which, in turn, had relied on Papike v. Temprands, Inc., 107 F.3d 737 (9th Cir. 1997). See id. As described by the court, Lescs involved a homeowner that brought an action against an insecticide manufacturer and an exterminator "for negligence, breach of warranties, and negligent and intentional misrepresentation after the fumes from the insecticide application rendered her home uninhabitable." Id. (citing Lescs, 976 F.Supp. at 393). The Lescs court ruled that the plaintiff's claims were preempted by the FIFRA and stated that the plaintiff "could not proceed under a consumer expectations theory to show defective design" because the claim was preempted by the FIFRA. Id. (citing Lescs, 976 F.Supp. at 399). The Lescs court added that "'[f]or this court to allow a claim of defective design based on consumer expectations would represent an unwarranted end-run around federal preemption.'" Id. (quoting Lescs, 976 F.Supp. at 399).

The court recounted that in Papike v. Tamprands, the plaintiff brought a product liability action against a tampon manufacturer after she contracted toxic shock syndrome. See id. (citing Papike, 107 F.3d at 743). The Ninth Circuit ruled that "the warnings on the tampon box 'met the federal requirements and Papike's design defect claim therefore fails the 'consumer expectation' test.'" Id. (quoting Papike, 107 F.3d at 743). The Ninth Circuit concluded that "'[t]o rule otherwise would allow the anomalous circumstance that a consumer is entitled to expect a product to perform more safely than its government-mandated warnings indicate.'" Id. (quoting Papike, 107 F.3d at 743).

While agreeing with Eriksen that Lescs and Papike were only persuasive authority, the court rejected his claim that the Washington Supreme Court's Soproni decision exempted his design defect claim from preemption by the FIFRA. Id. at 495. The plaintiff in Soproni had brought an action against "a window manufacturer for negligent design and failure to warn when her 20 month old child fell out of a window and sustained severe head injuries." Id. (citing Soproni, 971 P.2d at 500). The Soproni court determined that "the window complied with 'all codes and standards applicable to its design, manufacture, and use'" and ruled that such conformity "with applicable codes does not preclude design defect claims." Id. (quoting Soproni, 971 P.2d at 500).

The court reasoned that Soproni was distinguishable from the current action because in Soproni there was "no evidence . . . of a comprehensive, federal scheme that not only regulated the manufacture and use of the windows, but also specifically indicated it preempted any state requirements that differed from the federal requirements. In other words, in this case, the manufacture and labeling of pesticides is heavily regulated and controlled by the federal government under the FIFRA." Id. The court added that "[t]he FIFRA is a comprehensive scheme that details the requirements a pesticide manufacturer must meet, including warnings and precautionary statements. No evidence of a similar scheme regulating windows is mentioned or discussed in Soproni." Id.

The court concluded that "[i]f Mr. Eriksen was permitted to pursue his claim, his claim would be that Monitor should have been designed differently so that it would not have volatilized, or that a warning should have been included to inform the ordinary consumer that the pesticide might volatilize and move to other crop fields." Id. The court added that "Mr. Eriksen cannot escape the conclusion that if he prevailed on this claim, it would have the anomalous result that a 'consumer is entitled to expect a product to perform more safely than its government-mandated warnings indicate.'" Id. (quoting Papike, 107 F.3d at 743).

The court also ruled that the trial court abused its discretion when it dismissed the plaintiff's case for failure to personally appear at trial. Id. at 493. The court noted that Mr. Eriksen was represented by counsel at the trial proceedings, who indicated to the court that he was ready to proceed. See id. The court also noted that although counsel for the plaintiff admitted that his client's testimony was required to establish a prima facie case, Mr. Eriksen was not scheduled to testify until the third or fourth day of trial. See id. at 491. The trial court had denied the plaintiff's motion for a continuance, citing a lack of good cause and dismissed the remaining claims without prejudice. See id. The court reversed the trial court's decision with respect to this issue and remanded the matter back to the trial court. See id. at 495.

The case was decided on February 21, 2002; this summary was prepared in November, 2002.