Summary of a Recent
Judicial Development in
Pesticides

Negligence Claim Preempted by FIFRA

Steven White
National AgLaw Center Graduate Assistant

Summary of Decision

In E.I. Du Pont De Nemours and Co., v. Aquamar S.A., 881 So. 2d 1 (Fla. Dist. Ct. App. 2004), the Florida District Court of Appeals held that a claim that pesticide manufacturer negligently distributed fungicide was preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136-136y.

Background

E.I Du Pont de Numours and Company (DuPont) manufactured Benlate, a fungicide used on banana farms in Ecuador to help control a disease known as Black Sigatoka. See id. at 1. Benlate was one of three fungicides used to fight the disease and all three were used in a rotation to keep the disease from becoming resistant to one specific fungicide. See id.

After use of the fungicide had commenced, plaintiff shrimp farmers, who used the local rivers as a water source, experienced an increase in the death of their shrimp. See id. At the trial, the plaintiffs contended that Benlate either caused the disease Taura Syndrome in the shrimp, or weakened the shrimp's immune systems so they were susceptible to it. See id. The plaintiffs' negligence claim were based on three theories - negligent testing of Benlate, negligent in failing to warn banana farms of run-off potential, and negligent distribution of Benlate. See id. at 2.

Arguments

DuPont argued that the plaintiffs' negligence claim was preempted by the FIFRA. See id. at 2.

Analysis and Holding

In deciding whether the plaintiffs' claim was merely a disguised challenge to the fungicide's label, the court explained that the key to FIFRA preemption is "'whether one could reasonably foresee that the manufacturer, in seeking to avoid liability for the error, would choose to alter the product or the label.'" Id. at 5. (citations omitted). The court stated that DuPont's remedy for the negligence claim was to "specifically warn of run-off possibility and toxicity to shrimp." Id. at 5. Thus, the court held that the plaintiffs' negligent distribution claim was actually a claim challenging the label of the product and a failure of the manufacturer to warn of the dangers, which was preempted by FIFRA. See id.

The case was decided on September 27, 2004; this summary was posted Mar. 24, 2005.