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October 8, 1993


The opinion of the court was delivered by: JOHN T. NIXON

 Pending before the Court in the above-styled case are Defendants' *fn1" Motions for Summary Judgment (Doc. Nos. 18, 21, 22, 23). Defendants assert that all of plaintiffs' claims relate to inadequate labeling or failure to warn and thus should be dismissed because such claims are barred as a matter of federal law. Defendant Southern Mill Creek Products Company further contends that there are no genuine issues of material fact and that the company is entitled to judgment as a matter of law. For the reasons stated below, the Court grants the motions for summary judgment with respect to plaintiffs' claims of defective marketing and failure to warn. Plaintiffs' non-labeling claims, however, are not dismissed.


 On February 4, 1992, plaintiffs Stewart and Lori Wright filed this action against the Defendants for legal and equitable relief for personal injuries sustained from pesticide poisoning. The case at bar is a diversity action seeking damages under Tennessee common law and pursuant to the Tennessee Products Liability Act of 1978, Tennessee Code Annotated Sections 29-28-101 to -108. Plaintiffs state three grounds for this action: (i) strict products liability, (ii) negligence and gross negligence, and (iii) breach of implied warranty of merchantability.

 Defendants Dow Chemical U.S.A., Dow Chemical Company, Whitmire Research Laboratories, Southern Mill Creek Products Company, and Nor-Am Chemical Company, manufacture, sell, design, and distribute pesticides. The Wrights allege that they were poisoned and incurred personal injuries from four of defendants' products. From January 1989 through February 8, 1991, a licensed pest control company sprayed defendants' products in the interior, perimeter, and crawl space of plaintiffs' home. The four pesticides at issue are Dursban (designed, manufactured, distributed, and/or sold by Defendants Dow Chemical U.S.A. and the Dow Chemical Company), Dursban Granular (designed, manufactured, sold, and distributed by Southern Mill Creek Products Company), Ficam (designed, manufactured, sold, and distributed by Nor-Am Chemical Company), and Ultraban (designed, manufactured, sold, and distributed by Whitmire Research Laboratories). Dursban, Dursban Granular, and Ultraban are known by the chemical name, "Chlorpyrifos." The chemical name for Ficam is "Bendiocarb."

 On February 9, 1991, the Wrights first detected injuries allegedly caused from exposure to the aforementioned pesticides. Plaintiffs' home was sprayed with Dursban on January 7, 1991 and Ficam on January 14, 1991. On February 1, 1991, Mr. Wright worked in the crawl space of his home, an area that was included in the January 7, 1991 spraying. At 1:30 p.m. on February 8, 1991, while Plaintiffs were not at home, the interior of their residence was sprayed with Ultraban. Allegedly, the Wrights returned to their home at 5:30 p.m. and upon leaving at 6:30 p.m. opened the windows of their home.

 Mr. and Ms. Wright returned to their home during the early morning of February 9, 1991 and went to bed. Ms. Wright alleges that at approximately 5:00 a.m. she observed that Mr. Wright was experiencing difficulty breathing. Within five to six minutes, he had a seizure. Paramedics took Mr. Wright to the hospital, where he underwent neurological testing until his release on February 12, 1991. Mr. Wright was released from the hospital with the diagnosis "seizure of unknown etiology." No blood was withdrawn from Mr. Wright until February 13, 1991. Plaintiffs state that subsequent neurological testing revealed that Mr. Wright suffered a seizure as a direct result of pesticide poisoning.

 Mr. Wright had a seizure subsequent to the February 9, 1991 incident. The toxicologist who re-evaluated Mr. Wright concluded that Plaintiff is, and will be neurologically impaired, in most probability for the remainder of his life. Mr. Wright alleges that he is no longer employed as a commercial airline pilot as a result of his impairment.

 Later in the day on February 9, 1991, Ms. Wright allegedly experienced headaches, blurred vision, muscle aches, running and itchy eyes, sore throat, tingling and numbness in the face, and blotchy skin. On that same day, Ms. Wright was treated at a hospital emergency room and discharged with the diagnosis "possible allergic reaction to insecticide." Ms. Wright alleges that these symptoms persisted, to a lesser degree, each time she entered her home, until the house carpets and upholstered furniture were professionally cleaned on February 21, 1991.


 Rule 56(c) of the Federal Rules of Civil Procedure provides, in part, that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." An alleged factual dispute existing between the parties is not sufficient to defeat a properly supported summary judgment motion; there must be a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The substantive law involved in the case will underscore which facts are material and only disputes over outcome determinative facts will bar a grant of summary judgment. Id., 477 U.S. at 248, 106 S. Ct. at 2510.

 While the moving party bears the initial burden of proof for its motion, the party that opposes the motion has the burden to come forth with sufficient proof to support its claim, particularly when that party has had an opportunity to conduct discovery. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). It is true, however, that "in ruling on a motion for summary judgment, the court must construe the evidence in its most favorable light in favor of the party opposing the motion and against the movant. Further, the papers supporting the movant are closely scrutinized, whereas the opponent's are indulgently treated." Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962) (citations omitted).

 To determine if a summary judgment motion should be granted, the court should use the standard it would apply to a motion for a directed verdict under Rule 50(a) of the Federal Rules of Civil Procedure. Anderson, 477 U.S. at 250, 106 S. Ct. at 2511. The court must determine that a reasonable jury would be unable to return a verdict for the non-moving party in order to enter summary judgment. Id., 477 U.S. at 249, 106 S. Ct. at 2511. Thus, "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989) (citations omitted).


 In construing the evidence in its most favorable light in favor of the party opposing the motions for summary judgment and against the movants, as required under Bohn Aluminum & Brass Corp., 303 F.2d at 427, the Court finds that there does not exist a genuine issue of material fact with respect to the plaintiffs' claims for defective marketing and failure to warn. The Court finds that the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136-136y, ("FIFRA" or the "Act"), expressly precludes the establishment of any state law duties which would impose a labeling requirement in addition to or different from those included in the Act. If plaintiffs prevailed on their claims of defective marketing and failure to warn, a state imposed labeling requirement not included in FIFRA would be established. This additional state regulation is precisely what Congress sought to preclude. Consequently, the plaintiffs' claims of defective marketing and failure to warn are preempted as a matter of law and must be dismissed.

 This Court grants the defendants' motions for summary judgment in part. The plaintiffs' claims for defective design, breach of implied warranty of merchantability, and failure to properly test and study the products survive because FIFRA's preemption clause, § 136v(b), is not so broad as to preclude non-labeling claims. Furthermore, with regard to these claims, genuine issues of material fact remain.

 The Sixth Circuit has never decided whether FIFRA expressly preempts state law claims for inadequate warnings. However, in Professional Lawn Care Ass'n v. Village of Milford, 909 F.2d 929 (6th Cir. 1990), vacated and remanded Village of Milford, Michigan v. Professional Lawn Care Ass'n., U.S. , 111 S. Ct. 2880, 115 L. Ed. 2d 1046 (1991), the Sixth Circuit concluded that FIFRA impliedly preempted Milford, Michigan's ordinance No. 197 which imposed registration, posting, and notice requirements upon commercial "users of pesticides." The Supreme Court vacated the judgment of the Sixth Circuit in Professional Lawn Care Ass'n and remanded the case to the circuit court for further consideration in light of Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 111 S. Ct. 2476, 115 L. Ed. 2d 532 (1991). The Supreme Court in Wisconsin Public Intervenor held that FIFRA does not preempt local government regulation of pesticide use, but it did not address whether FIFRA preempted state law claims related to labeling.

 The federal circuit and district courts remain split on whether FIFRA preempts state law regulation or common-law duties. *fn2" Notwithstanding the conflict among these courts, the Supreme Court's analysis in Cipollone v. Liggett Group, Inc., U.S. , 112 S. Ct. 2608, 2612, 120 L. Ed. 2d 407 (1992), is instructive. In Cipollone, § 5(b) of the Public Health Cigarette Smoking Act of 1969 (the "1969 Cigarette Act") prohibited states from imposing "requirements" on cigarette advertising. The Court ...

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