Summary of a Recent
Judicial Development in
Environmental Law

FIFRA Does Not Preempt Fully Consistent Statutory or Common Laws
Regarding Pesticide Labeling

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Fox v. Cheminova, Inc., 387 F. Supp. 2d 160 (E.D.N.Y. 2005), the United States District Court for the Eastern District of New York denied a defendant's motions for summary judgment. The plaintiff lobstermen brought the instant action against manufacturers and producers of mosquito insecticides, blaming the defendants for increased lobster mortality. All but one of the original defendants entered into settlement agreements with the plaintiffs. The lone manufacturer moved for summary judgment on several grounds. Because material issues of fact remained and the plaintiffs' state law claims were not preempted by FIFRA, the court denied the defendant's motions.

Background

In September 1999, lobstermen in New York and Pennsylvania began to notice an increased lobster mortality rate in Long Island Sound, which allegedly damaged their ability to trap and sell lobsters. Fox v. Cheminova, Inc., 213 F.R.D. 113, 117 (E.D.N.Y. 2003). The defendants manufactured and sold mosquito insecticides used by New York City to control the spread of West Nile Virus. Id. On August 25, 2000, the plaintiffs filed the instant suit blaming the defendants for the increase in lobster mortality. Id. On March 1, 2002, they sought to certify the following class:

All persons or other legal entities that possess or possessed a valid commercial fishing license or licenses issued by the State of New York and/or the State of Connecticut which permitted them to catch and take lobsters . . . from the waters of the Long Island Sound within the territories of the State of Connecticut and/or the State of New York for commercial purposes or for purposes of sale, and who, beginning in September 1999, suffered or sustained legally cognizable damages or suffered a legally cognizable harm as a result of the application of insecticides . . . manufactured by the defendants to this lawsuit in the State of New York and the State of Connecticut that began in September 1999.
Id. at 120.

The defendants objected to the plaintiffs' class certification request. Id. at 120. The court originally denied the plaintiffs' request without prejudice to renew. Id. at 121. However, after reviewing the evidence presented, the court held that the plaintiffs satisfied Federal Rule of Civil Procedure 23(a) because they showed: (1) there were "likely over three hundred . . . lobstermen who [qualified] for inclusion in this class"; (2) there were "many common questions of law and fact that Plaintiffs, and potential class members, share[d]"; (3) the "claims of the class representatives, like the potential class members, [were] predicated upon the massive lobster mortality beginning in September 1999 allegedly caused by the presence in Long Island Sound of various pesticides manufactured by Defendants"; and (4) "the named representatives ha[d] and [would] appear voluntarily to all proceedings and . . . [would] not act in a manner contrary to the class members." Id. at 122-27.

Thereafter, on December 15, 2004, two defendants settled their cases with the plaintiffs, leaving one remaining defendant. Fox, 387 F. Supp. 2d at 165. That defendant filed motions for summary judgment and motioned to exclude the plaintiffs' expert witnesses' testimony. Id.

Arguments

The remaining defendant argued that its motion for summary judgment should be granted for four reasons: "(i) Plaintiffs' claims of mis-labeling [were] expressly preempted (or at least impliedly preempted) by the Federal Insecticide, Fungicide & Rodenticide Act, 7 U.S.C. § 136v (FIFRA); (ii) Defendant [was] immune from liability pursuant to the Government Emergency Doctrine; (iii) there [were] no material issues of fact as to the Plaintiffs' State law claims of negligence and public nuisance; and (iv) Plaintiffs [] failed to show that [insecticide] caused the lobster die-off in 1999. Id. at 165-66.

Analysis and Holdings

The court first addressed the defendant's FIFRA preemption argument. Id. at 166. A statutory or common law can be expressly preempted or preempted by implication. Id. Defendant argued both.

At 7 U.S.C. § 136v(b), FIFRA states: "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. In Bates v. Dow Agrosciences, LLC, 544 U.S. 431 (2005), the United States Supreme Court "set forth a two-part test as to whether FIFRA preemption applied to particular State law claims: (i) whether the claim was a requirement for 'labeling and packaging' and (ii) whether it imposes a labeling and packaging requirement 'in addition to or different from those required' under FIFRA." Id. at 167. Although FIFRA preempts state laws that impose labeling requirements that "diverge[] from those set out in FIFRA and its implementing regulations," it does not preempt state laws that "are fully consistent with federal requirements." Id. In the instant case, the court denied summary judgment on the defendant's express preemption claim because the parties failed to "flesh out the precise contours of the State labeling laws," so the court had "no grounds upon which to decide the factual issue as it [was] presented in this case." Id.

A state law is preempted by implication when it is impossible to comply with both federal and state requirements simultaneously or when state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id. at 168. Once again, because the parties failed to sufficiently brief the court, the court denied summary judgment on the implied preemption claim. Id.

The court then addressed whether the defendant had violated FIFRA. Id. Essentially, the court needed to decide whether the pesticide's label defied FIFRA's and the EPA's labeling requirements. Id. This question turned on whether the change to pesticide's amended label was registrant-driven or EPA-driven. Id. Because this issue was "rife with material questions of fact," the court again denied the defendant's motion for summary judgment. Id.

Next, the court addressed the defendant's claim that the Government Emergency Doctrine shielded it "from liability [f]or all acts which occurred during the onslaught of the West Nile Virus." Id. at 169-70. The defendant failed to provide evidence that the Second Circuit or the state had adopted the doctrine; therefore, the court denied summary judgment. Id. at 170.

The court then denied the defendant's motions for summary judgment regarding the plaintiffs' state law claims because material issues of fact remained. Id. at 170-73. These material issues of fact included whether the pesticide warning labels precluded summary judgment on the plaintiffs' claims for negligence and strict liability, and whether application of the pesticide caused the massive die-off of lobsters, or whether other causes contributed. Id. at 170-74.

Finally, the court addressed the defendant's motion to exclude ten of the plaintiffs' expert witnesses. Id. at 174. For the court to apply the appropriate analysis of the plaintiffs' experts, it needed to conduct Daubert hearings for each of the witness. Id. at 175 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)). Because the court "ha[d] no knowledge of who the parties [would] ultimately call as witnesses at trial," it deferred "all questions regarding the admissibility of the expert testimony" until the hearings were held. Id.

The case was decided on August 25, 2005.