IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
AT JACKSON
_______________________________________________________
)
HARRIS HUGHES, JR., ) Haywood County Circuit Court
) No. 2898
Plaintiff/Appellant. )
)
VS. ) C.A. No. 02A01-9611-CV-00290
)
TENNESSEE SEEDS OF
BROWNSVILLE, INC., WATERFIELD )
GRAIN CO., INC., LINDA FREEMAN, )
)
FILED
in her capacity as Manager of )
November 14, 1997
TENNESSEE SEEDS OF )
BROWNSVILLE, INC., FMC )
Cecil Crowson, Jr.
CORPORATION, and MILES ) Appellate C ourt Clerk
CORPORATION, )
)
Defendants/Appellees. )
______________________________________________________________________________
From the Circuit Court of Haywood County at Brownsville.
Honorable Dick Jerman, Jr., Judge
Robert L. Green,
Darryl D. Gresham,
NEELY, GREEN, FARGARSON, BROOKE & SUMM ERS, Memphis, Tennessee
Steven R. Walker, Memphis, Tennessee
Attorneys for Plaintiff/Appellant.
James M . Doran, Jr.,
E. Frances Coughlin,
MANIER, HEROD, HOLLABAUGH & SMITH
Attorneys for Defendants/Appellees Tennessee Seeds of Brownsville, Inc., Waterfield Grain Co.,
Inc., and Linda Freeman.
Matthew J. Sweeney, III, Nashville, Tennessee
Lee Davis Thames, Jackson, Mississippi
Michael E. McWilliams, Jackson, Mississippi
Attorneys for Defendant/Appellee FMC Corporation.
Larry E. Killebrew,
Bradley E. Trammell,
BAKER, DONELSON, BEARMAN & CALDWELL, Memphis, Tennessee
Jack E. Urquhart,
John W. Ghezzi,
HOTLZM AN & URQUHART, P.C., Houston, Texas
Attorneys for Defendant/Appellee Miles, Inc.
OPINION FILED:
AFFIRMED IN PART, REVERSED IN PART AND REMANDED
FARMER, J.
CRAWFORD, P.J., W.S.: (Concurs)
LILLARD, J.: (Concurs)
Plaintiff Harris Hughes, Jr., appeals the trial court’s order entering summary
judgment in favor of Defendants/Appellees Tennessee Seeds of Brownsville, Inc., Waterfield
Grain Company, Linda Freeman (in her capacity as manager of Tennessee Seeds), FMC
Corporation, and Miles Corporation.1 We reverse in part the trial court’s judgment based on our
conclusion that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) does not
preempt all of Hughes’ state-law claims against the Defendants.
I. Facts and Procedural History
In ruling on the Defendants’ motions for summary judgment, the trial court, and
this court on appeal, must view all of the evidence in favor of Hughes, the nonmoving party, and
draw all reasonable inferences from the evidence in Hughes’ favor. Byrd v. Hall, 847 S.W.2d
208, 214 (Tenn. 1993). The evidence in this case consisted chiefly of Hughes’ lengthy
deposition. When viewed in accordance with the foregoing standard, Hughes’ deposition reveals
the following facts.
In the spring of 1991, Hughes planted approximately 4200 acres of cotton. When
Hughes began planting his crop in April 1991, he used a chemical program which included
Terraclor Super X, Temik, Command, Di-Syston, and Cotoran. Hughes included Command in
his chemical program based upon the advice of Linda Freeman, the manager of Tennessee Seeds,
and Tom Hayes, a representative of FMC. Freeman and Hayes recommended that Hughes use
Command even though Command had not yet been approved for use on cotton in Tennessee.
Freeman and Hayes represented that Command would be approved for use on cotton within “just
a matter of days” and, in any event, by the time planting season started. Hayes specifically
recommended the use of Command on Hughes’ 1991 cotton crop “because it was a very good
velvet leaf control material, and it was a lot cheaper than” an alternative product. When Hughes
agreed to use Command, Freeman and Hayes also recommended that he use Di-Syston in
conjunction with Command as a seed “safener.”
1
At some point during the proceedings below, Miles Corporation became Bayer
Corporation.
On the advice of Linda Freeman, in early May Hughes changed his chemical
program by substituting the chemical Direx for Cotoran. Because of rain, Hughes had decided
to broadcast his chemicals instead of applying the chemicals in bands. According to Freeman,
Hughes could broadcast Direx just as cheaply as he could band Cotoran. The label on the Di-
Syston container cautioned the user against using “certain pre-emergent herbicides” in
conjunction with Di-Syston. Hughes knew that Direx was a pre-emergent herbicide, so he asked
Freeman about its use in conjunction with Di-Syston. Freeman represented that it would be
“okay” to use Direx with Di-Syston and, in fact, recommended the combination to Hughes.
Hughes purchased all of his chemicals from Freeman at Tennessee Seeds, and he relied upon her
expertise in deciding which chemicals to use.
After Hughes completed his planting for the 1991 season, he noticed that all of
the cotton treated with the combination of Command, Di-Syston, and Direx either died or
suffered severe damage, while the cotton treated with Command, Di-Syston, and Cotoran
survived. Hughes later learned that the cotton died because he mixed an organophosphate (Di-
Syston) with a urea-based product (Direx) and that Freeman should not have recommended these
chemicals in combination with one another. Hughes further learned that the damage to his cotton
crop was exacerbated by his use of Command, which tended to damage the cotton plant by
whitening the leaves and stunting the plant’s growth when applied at rates recommended for
other crops.
Hughes subsequently filed this products liability action against the Defendants
seeking to recover for the damage caused to his 1991 cotton crop. Hughes sued the following
entities: Tennessee Seeds and its manager, Linda Freeman, who sold the chemicals to Hughes;
Waterfield Grain Company, the parent company of Tennessee Seeds; FMC Corporation, the
manufacturer of Command; and Miles Corporation, the manufacturer of Di-Syston. The
manufacturer of Direx was not a party to this lawsuit. Hughes’ complaint asserted the following
counts against all named Defendants: (1) products liability (negligence); (2) products liability
(strict liability in tort); and (3) breach of express and implied warranties. Additionally, Hughes’
complaint asserted counts for breach of fiduciary duty and negligence against Freeman,
Tennessee Seeds, and Waterfield Grain Company.
The Defendants moved for summary judgment, contending that all of Hughes’
claims against them were preempted by FIFRA. The trial court granted the Defendants’ motions,
and this appeal followed.2
II. FIFRA Pre-emption
This court previously addressed the pre-emptive effects of FIFRA in
Wadlington v. Miles, Inc., 922 S.W.2d 520 (Tenn. App. 1995):
FIFRA is a comprehensive federal statute that regulates pesticide
use, sales and labeling, and grants enforcement authority to the
Environmental Protection Agency (EPA). Taylor AG Indus. v.
Pure-Gro, 54 F.3d 555, 559 (9th Cir. 1995). FIFRA expressly
prohibits states from posing “any requirements for labeling or
packaging in addition to or different from those required” under it.
7 U.S.C.A. § 136v(b) (Supp. 1995).
Wadlington, 922 S.W.2d at 522. Accordingly, section 136v(b) of FIFRA prevents states from
enacting legislation which conflicts with FIFRA’s labeling requirements.
In addition, section 136v(b) prevents state courts from granting relief on common-
law claims if the relief granted would conflict with FIFRA’s labeling requirements. Papas v.
Upjohn Co., 985 F.2d 516, 518 (11th Cir.), cert. denied, 510 U.S. 913 (1993). As explained by
the court in Papas,
[T]he term “requirements” in section 136v(b) “sweeps broadly and
suggests no distinction between positive enactments and the
2
The trial court’s order further stated that “[f]urther, the proof presented does not
demonstrate that the plaintiff has gone forward with any proof that the defendants conducted
themselves in any tortious manner or that the combination of the chemicals employed by the
plaintiff caused the damage complained of herein.” We believe the evidence presented by
Hughes creates a genuine issue of material fact as to causation.
common law.” [Cipollone v. Liggett Group, Inc., 505 U.S. 504,
521, 112 S. Ct. 2608, 2620 (1992)]. Common law damages awards
are one form of state regulation and, as such, are “requirements”
within the meaning of section 136v. See Id.
Papas, 985 F.2d at 518. Thus, “[t]o the extent that state law actions for damages depend upon
a showing that a . . . manufacturer’s ‘labeling or packaging’ failed to meet a standard ‘in addition
to or different from’ FIFRA requirements,” section 136v(b) pre-empts such claims. Id.; accord
Wadlington, 922 S.W.2d at 524.
In deciding what types of claims were pre-empted by FIFRA in Wadlington, this
court noted that FIFRA’s language indicated that Congress intended to create a broad definition
of labeling. Id. (citing U.S.C.A. §§ 136(p), 136(q) (Supp. 1995)). Based upon FIFRA’s broad
definition of labeling, this Court, like the federal courts before it, concluded that FIFRA pre-
empts state-law claims to the extent that such claims are based upon allegations that the
manufacturer failed to adequately warn users as to the proper use of its product. Wadlington,
922 S.W.2d at 523-24; Papas, 985 F.2d at 518; see also Taylor AG Indus. v. Pure-Gro, 54 F.3d
555, 561 (9th Cir. 1995); Lowe v. Sporicidin Internat’l, 47 F.3d 124, 129 (4th Cir. 1995);
Worm v. American Cyanamid Co., 5 F.3d 744, 748 (4th Cir. 1993). Courts uniformly have
reached this conclusion because, ultimately, failure-to-warn claims challenge the adequacy of
the warnings provided on the product’s labeling. Papas, 985 F.2d at 519; Taylor AG Indus., 54
F.3d at 561.
In accordance with these authorities, Hughes concedes in this appeal that the
Defendants were entitled to summary judgment as to any claims which were based on allegations
of improper labeling or failure to warn. To the extent that his claims are based on affirmative
representations by Linda Freeman and Tom Hayes as to the suitability of the products used,
however, Hughes insists that his claims are not pre-empted by FIFRA.
III. Hughes’ Claims Against Miles Corporation
As an initial matter, we conclude that any claims which Hughes may have against
Defendant Miles Corporation are pre-empted by FIFRA because the only evidence in the record
on this matter indicates that Hughes’ claims against Miles are based on improper labeling and
failure- to-warn theories. In his deposition, Hughes acknowledged that he had no claim that
Miles’ product, Di-Syston, was improperly designed, tested, or manufactured. Hughes also
admitted that he did not rely on any advertising or statements made by Miles beyond those
indicated on the product label. When questioned as to the nature of his claims against Miles,
Hughes testified that these claims were based on the Di-Syston label’s failure to warn potential
users against mixing an organophosphate product with a urea-based product. Inasmuch as these
claims challenge the adequacy of Di-Syston’s label, the claims are pre-empted by FIFRA, and
the trial court properly dismissed Miles from this lawsuit.
Hughes criticizes the trial court for extending the scope of the summary judgment
proceedings beyond the single basis asserted in the Defendants’ motions, i.e., FIFRA pre-
emption, and for reaching the merits of Hughes’ claims against the Defendants. Determining the
issue of whether Hughes’ claims were pre-empted by FIFRA, however, necessarily involved an
inquiry into the factual bases of Hughes’ claims. Accordingly, when presented with Miles’
motion for summary judgment, it was incumbent upon Hughes to set forth evidence which
contradicted the evidence that Hughes’ claims against Miles were based solely on improper
labeling and failure-to-warn theories. See Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)
(when party seeking summary judgment makes properly supported motion, burden shifts to
nonmoving party to set forth specific evidence establishing existence of disputed, material facts).
At that point in the proceedings, Hughes could not simply rely on the allegations of his
complaint. Id.; see also Taylor AG Indus. v. Pure-Gro, 54 F.3d 555, 562 n.4 (9th Cir. 1995)
(declining to address pre-emption of plaintiffs’ design defect claim on appeal from summary
judgment where plaintiffs failed to offer evidence to support such claim).
In fact, Hughes has presented no evidence that any of the products involved in this
lawsuit were improperly designed, tested, or manufactured, and on appeal, Hughes acknowledges
that his claims “are based upon the representations and recommendations of Linda Freeman and
Tom Hayes.” This leaves only Hughes’ claims for breach of express and implied warranties,
breach of fiduciary duty, and negligence for our consideration.
IV. Hughes’ Breach of Implied Warranty Claims Against
the Remaining Defendants
Authorities addressing the pre-emptive effects of FIFRA on breach of warranty
claims generally agree that claims for breach of implied warranties, as opposed to breach of
express warranties, are pre-empted by FIFRA. Papas v. Upjohn Co., 985 F.2d 516, 519-20
(11th Cir.), cert. denied, 510 U.S. 913 (1993); Taylor AG Indus. v. Pure-Gro, 54 F.3d 555, 562-
63 (9th Cir. 1995); Hopkins v. American Cyanamid Co., 666 So. 2d 615, 623 n.4 (La. 1996).
In making this distinction, the Papas court explained that, whereas implied warranties of
merchantability arise by operation of state law, express warranties arise as a result of voluntary,
express promises made by the warrantor:
Express warranties are promises that are made in some, but
not all, sales contracts. Express warrantors seek competitive
advantage by promising buyers that certain factual representations
about their goods are true. Liability for breach of an express
warranty has a voluntary quality; it “derives from, and is measured
by, the terms of that warranty.” [Cipollone v. Liggett Group, Inc.,
505 U.S. 504, 525, 112 S. Ct. 2608, 2622 (1992)].
In contrast, implied warranties of merchantability arise by
operation of law. . . . Although liability for breach of an express
warranty may be viewed as “imposed by the warrantor,”
Cipollone, 505 U.S. at [525], 112 S. Ct. at 2622, liability for
breach of an implied warranty is based on “the agreement, imposed
by law, to be responsible in the event the thing sold is not in fact
fit for the use and purposes intended.” Arcade Steam Laundry v.
Bass, 159 So. 2d 915 (Fla. App. 1964) (emphasis added). In
essence, when plaintiffs argue that an implied warranty obligates
the seller, plaintiffs acknowledge that the seller did not volunteer
for the liability.
FIFRA pre-empts claims based on requirements imposed by
states. 7 U.S.C. § 136v(b). If [the defendant] were to have
liability for breach of an implied warranty of merchantability, that
liability would not be self-inflicted. Instead, that liability would be
based on a requirement imposed by state law. Therefore, to the
extent the implied warranty claim depends upon inadequacies in
labelling or packaging, FIFRA section 136v pre-empts the claim.
Papas, 985 F.2d at 519-20 (emphases in original); see also Taylor AG Indus., 54 F.3d at 562-63;
Hopkins, 666 So. 2d at 623 n.4; but see Wright v. Dow Chem. U.S.A., 845 F. Supp. 503, 510-11
(M.D. Tenn. 1993).
In accordance with the foregoing authorities, we conclude that Hughes’ claims for
breach of implied warranty are pre-empted by FIFRA. We reach a different result with regard
to Hughes’ claims for breach of express warranty, however, because these claims are based on
voluntary representations made by Freeman and Hayes which were in addition to or different
from FIFRA’s labeling requirements.
V. Hughes’ Breach of Express Warranty Claims Against
the Remaining Defendants
Authorities also agree that, to the extent they are based upon inadequacies in
labeling or packaging, breach of express warranty claims are pre-empted by FIFRA. In Taylor
AG Indus. v. Pure-Gro, 54 F.3d 555, 562 (9th Cir. 1995), the court held that the plaintiffs’
express warranty claim was pre-empted by FIFRA to the extent that the claim was “predicated
upon a duty to provide information in addition to or different from that required by FIFRA.” In
Worm v. American Cyanamid Co., 5 F.3d 744, 749 (4th Cir. 1993), the court similarly held that
the plaintiffs’ claim for breach of express warranty was pre-empted where the representation
made by the defendants, i.e. that corn could be safely planted eleven months following the
application of Scepter, was not voluntary and, in fact, was required and approved by the EPA.
See also Lowe v. Sporicidin Internat’l, 47 F.3d 124, 129 (4th Cir. 1995) (“[A]n express
warranty claim based on EPA-approved labeling materials is preempted.”).
These opinions also suggest, however, that the result would be different if the
plaintiff were able to provide evidence that the defendants conveyed information or made
assurances which went beyond the label recommendations. In affirming summary judgment in
favor of the defendants, for example, the Taylor court noted that the plaintiffs had failed to
present probative evidence that the scope of the defendants’ assurances varied from or went
beyond the label recommendations. Taylor AG Indus., 54 F.3d at 562 n.5. In Worm, the court
similarly noted that the plaintiffs had failed to present evidence that the defendants made any
statements “other than that required and approved by the EPA.” Worm, 5 F.3d at 749.
In Hopkins v. American Cyanamid Co., 666 So. 2d 615 (La. 1996), the Supreme
Court of Louisiana held that a breach of express warranty claim similar to the one brought in this
case was not pre-empted by FIFRA. There, the defendants allegedly represented that the
insecticide Thimex could safely be used in combination with Direx. This combination
discolored, stunted, and killed many of the plaintiffs’ cotton plants, and they subsequently sued
various defendants for the damage to their cotton crop. In holding that the plaintiffs’ claim for
breach of express warranty was not pre-empted, the court reasoned:
[The plaintiffs’ express warranty claim does] not relate to labeling
or packaging, or warning. . . . An express warranty is a guarantee
which the manufacturer or seller of a good voluntarily undertakes
and extends to its customer. It is not a warning, nor is it a
mandatory packaging or labeling condition which constitutes a
state imposed “requirement.”
Hopkins, 666 So. 2d at 623.
After viewing the evidence in this case, and drawing all reasonable inferences
therefrom, we conclude that Hughes has presented sufficient evidence to withstand the remaining
Defendants’ motions for summary judgment as to Hughes’ breach of express warranty claims.
As in Hopkins, the record in this case contains evidence that the remaining Defendants, through
their agents, voluntarily made representations as to their product’s effectiveness or suitability on
Hughes’ cotton crop, and that these representations exceeded or differed from the information
contained in the product’s label. According to Hughes’ deposition testimony, Freeman and
Hayes recommended that Hughes use Command on his cotton crop even though Command was
not yet labeled for use on cotton. Additionally, Freeman represented to Hughes that it would be
“okay” to use Direx in combination with Di-Syston. These representations were voluntarily
made and went beyond the information contained in the respective product’s labeling
information.
VI. Hughes’ Breach of Fiduciary Duty and Negligence Claims Against
Tennessee Seeds, Waterfield Grain Company, and Linda Freemen
We likewise conclude that FIFRA does not pre-empt Hughes’ claims for breach
of fiduciary duty and negligence against Tennessee Seeds, Waterfield Grain Company, and Linda
Freeman. Like Hughes’ express warranty claims, these claims depend, not upon the information
provided on EPA-approved labels, but upon the voluntary representations made by Linda
Freeman when she was advising Hughes as to the appropriate chemical program to use on his
cotton crop.3
3
As Hughes concedes, these claims are pre-empted to the extent that they rely on a failure-
to-warn theory because Freeman had no duty to provide warnings other than those contained on
FIFRA-approved labels. Hopkins v. American Cyanamid Co., 666 So. 2d 615, 621 (La. 1996).
VII. Conclusion
Those portions of the trial court’s judgment (1) dismissing Hughes’ claims for
breach of express warranty against Tennessee Seeds, Waterfield Grain Company, Linda
Freeman, and FMC, and (2) dismissing Hughes’ claims for breach of fiduciary duty and
negligence against Tennessee Seeds, Waterfield Grain Company, and Linda Freeman are
reversed and this cause remanded for further proceedings consistent with this opinion. In all
other respects, the trial court’s judgment is affirmed. Costs of this appeal are taxed to Appellees
(with the exception of Miles Corporation), for which execution may issue if necessary.
____________________________________
FARMER, J.
______________________________
CRAWFORD, P.J., W.S. (Concurs)
______________________________
LILLARD, J. (Concurs)