Indian Brand Farms, Inc. v. Novartis Crop Protection Inc.

PRECEDENTIAL

IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT

NO. 08-4484

INDIAN BRAND FARMS, INC.; COLUMBIA
FRUIT FARMS, INC.; JOYCE CAPPUCCIO,
Individually and d/b/a WM. Cappuccio & Sons;
COLUMBIA CRANBERRY, INC.; JOSEPH
MARTINELLI, Individually and d/b/a Blu-Jay
Farms; GREGORY A. CLARK, Individually and
d/b/a Clark Farms; ANTHONY MELORA,
Individually and d/b/a/ Melora Farms; R&S
FRANCESCHINI FARMS, a partnership of
Russell Franceschini and Scott Franceschini,

Appellants

v.

NOVARTIS CROP PROTECTION INC.,
a foreign corporation
 On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civil Action No. 1-99-cv-02118)
District Judge: Hon. Joseph H. Rodriguez

Argued December 1, 2009

BEFORE: FISHER, HARDIMAN and STAPLETON,
Circuit Judges

(Opinion Filed: August 10, 2010)

Scott K. Attaway (Argued)
Kellogg, Huber, Hansen, Todd, Evans & Figel
1615 M Street, N.W. - Suite 400
Washington, DC 20036
and
Kathleen F. Beers
Thomas J. Vesper
R.C. Westmoreland
Westmoreland, Vesper & Quattrone
8025 Black Horse Pike - Suite 500
West Atlantic City, NJ 08232
Attorneys for Appellants

2
John P. Mandler (Argued)
Bruce G. Jones
Kristen R. Eads
Krisann C. Kleibacker Lee
Faegre & Benson
2200 Wells Fargo Center
90 South 7th Street
Minneapolis, MN 55402
and
Robert J. Machi
Morgan Melhuis Abrutyn
651 West Mount Pleasant Avenue - Suite 200
Livingston, NJ 07039
Attorneys for Appellee

OPINION OF THE COURT

STAPLETON, Circuit Judge:

For the second time in just over five years, a group of
New Jersey blueberry farmers (collectively, “Plaintiffs”) appeals
orders of the District Court granting summary judgment to
defendant Novartis Crop Protection, Inc. (“Novartis”) on
Plaintiffs’ claims for damage to their crops allegedly caused by
use of a pesticide manufactured and distributed by Novartis.

3
 The principal issues on appeal are: (1) whether
Plaintiffs’ claims of negligent misrepresentation/fraud, violation
of the New Jersey Consumer Fraud Act (“NJCFA”), and failure-
to-warn are preempted by the Federal Insecticide, Fungicide,
and Rodenticide Act (“FIFRA”), a comprehensive regulatory
statute that covers the use, sale, and labeling of pesticides; (2)
whether Plaintiffs have made a sufficient showing that they
relied on the alleged misrepresentations by Novartis to avoid
summary judgment on their negligent misrepresentation/fraud
and NJCFA claims; and (3) whether Novartis was entitled to
summary judgment on Plaintiffs’ strict product liability, design
defect claim on the ground that Novartis owed no duty to test its
pesticide when mixed with fungicides.

We conclude that because Plaintiffs’ negligent
misrepresentation/fraud and NJCFA claims are based on alleged
misrepresentations in Novartis’s marketing brochure, and that
brochure does not qualify as “labeling” under FIFRA, those
claims are not preempted. We further conclude that Plaintiffs,
other than Plaintiff Indian Brand Farms, have tendered prima
facie evidence of their reliance on Novartis’s alleged written
misrepresentations. Accordingly, we will vacate the District
Court’s grant of summary judgment as to the negligent
misrepresentation/fraud and NJCFA claims as to all Plaintiffs
except Indian Brand Farms and remand for further proceedings.
We will affirm the District Court’s grant of summary judgment
to Novartis on these claims as to Indian Brand Farms.

Because Plaintiffs’ failure-to-warn claim, if successful,
would not result in a labeling requirement in addition to or
different from those required by FIFRA, the failure-to-warn

4
claim is not preempted, and further proceedings on that claim
are required. Finally, we conclude that there is a genuine issue
of material fact with respect to Plaintiffs’ design defect claim,
and summary judgment in Novartis’s favor was inappropriate.

I. Background
A.

For several years, Plaintiffs treated their blueberry plants
with two of Novartis’s pesticides, Diazinon 50 WP and
Diazinon AG500 (“50 WP” and “AG500,” respectively). Before
applying 50 WP and AG500, Plaintiffs would combine them
with fungicides called Captan and Captec in a process known as
tank mixing. Plaintiffs assert that tank mixing is a common
practice that is well known in the industry, and while using 50
WP and AG500 in this manner, they experienced no crop
damage.

In the spring of 1997,1 Plaintiffs purchased and began

1
According to Plaintiffs’ record purchase and record
application documents, Indian Brand Farms purchased AG600
on April 21, 1997, and first applied it on May 10, 1997. It is
unknown when Columbia Fruit Farms purchased AG600, but its
first application was on May 16, 1997. Wm. Cappuccio & Sons
purchased AG600 on June 3, 1997, and first applied it on June
4, 1997. Columbia Cranberries purchased AG600 on May 28,
1997, and first applied it on May 29, 1997. Blu-Jay Farms
purchased AG600 on May 29, 1997, but its first application date
is unknown. It is unknown when Clark Farms purchased

5
using Diazinon AG600 (“AG600”), a new pesticide produced
and marketed by Novartis, and Plaintiffs tank mixed AG600
with Captan and Captec in the same manner they had tank mixed
50 WP and AG500. AG600 was indicated for use on sixty-two
different plants, one of which was blueberries. Novartis did not
recommend, however, on the product label or orally, that
growers mix AG600 with Captan or Captec, and the product
label warned purchasers that unintended consequences such as
crop injury could result from the “presence of other materials, or
the manner of use or application.” App. at A545.

The AG600 product label is a twenty-one-page document
that is divided into “Directions for Use” and “Conditions of Sale
and Warranty.” The “Conditions of Sale and Warranty” are
contained in the first two paragraphs of the label, and the
“Directions for Use” take up the remainder, containing multiple
subparagraphs and charts covering various crop and pest types.
The label does not specify that AG600 contains an inert
ingredient called an ionic surfactant2 because the United States
Environmental Protection Agency (“EPA”) does not require

AG600, but its first application was on June 4, 1997. Melora
Farms purchased AG600 on May 26, 1997, and first applied it
on May 27, 1997. Finally, it is unknown when R&S
Franceschini purchased AG600, but its first application of it was
on May 24, 1997.
2
A surfactant, short for “surface-active agent,” is intended to
enhance the pesticide’s active ingredient’s ability to spread
evenly across plant tissue and adhere to the plant structure.

6
manufacturers to identify the inert ingredients of a product on
the label unless the agency has determined that a particular inert
ingredient is of toxicological concern. See 7 U.S.C. §
136h(d)(1)(C); 40 C.F.R. § 156.10(g)(1) & (7); Labeling
Requirements for Pesticides and Devices, 49 Fed. Reg. 37,960,
37,965 (1984) (“Because the identity of an inert ingredient is
protected from disclosure by FIFRA sec. 10(d)(1)(C), a
prerequisite for labeling identification of such ingredients is that
the Agency make a finding that ‘disclosure is necessary to
protect against an unreasonable risk of injury to health or the
environment.’”).

Novartis distributed advertising literature stating that
AG600 was safer and more effective than its previous products.
This literature was in the form of a seventeen-page, full-color,
marketing brochure stating that AG600 had “[t]he same
powerful product performance,” “[i]ncreased safety to users and
the environment,” and promoted “[b]etter crop safety” with
“equal performance.” App. at A533-34. The marketing
brochure contained no instructions for use of AG600. The
brochure was distributed to, among others, product retailers and
scientists at the Rutgers University Cooperative Extension, a
part of the Rutgers New Jersey Agricultural Experiment Station.
As a result of these marketing efforts, these scientists
recommended AG600 to New Jersey blueberry farmers, both at
a “twilight meeting” of farmers in May 1997 3 and via the May

3
The exact date of this “twilight meeting” is unclear. One of
Plaintiffs’ pesticide dealers, Frank Donato, recalled the date of
the meeting as around May 15, 1997. App. at A451. Dr. Gary

7
29, 1997, edition of the Blueberry Bulletin, a newsletter
published by Rutgers.

Contrary to these claims of crop safety, Plaintiffs contend
that AG600, when mixed with the fungicides Captan and
Captec, caused systemic injury to their blueberry plants,
including blotches, depressions, spots on the plants, and even
plant death. Plaintiffs allege that this injury was due to the
presence of an ionic surfactant, which was not an ingredient of
50 WP or AG500. Plaintiffs allege that this ingredient, about
whose inclusion in AG600 Plaintiffs were unaware, when mixed
with the fungicides, caused the damage to their plants.

B.

Plaintiffs filed suit in the United States District Court for
the District of New Jersey on May 7, 1999, seeking damages
based on claims of strict liability under the New Jersey Products
Liability Act (“NJPLA”) (in that AG600 had a latent design
defect and Novartis failed to warn that AG600 could be harmful
to crops if mixed with a fungicide); negligence (in that Novartis
was negligent in failing to test AG600 before putting it in the
stream of commerce); negligent misrepresentation/fraud (in that
Novartis marketed AG600 as controlling insects without having
adverse effects on plants, when Novartis knew or should have

Pavlis of Rutgers recalled that the date was around May 25,
1997. Id. at A399. Joyce Cappuccio of Plaintiff Wm.
Cappuccio & Sons certified that the date of the meeting was
May 21, 1997. Id. at A904.

8
known that this was false); breach of the NJCFA (in that
Novartis deceptively represented that AG600 was safe to use on
blueberry plants); and breach of express warranty (in that
Novartis warranted that AG600 would conform to the chemical
description on its label and would not injure plants).

Following discovery, Novartis moved for summary
judgment, arguing, inter alia, that Plaintiffs’ claims were
preempted by FIFRA. The District Court agreed and granted the
motion. Plaintiffs then appealed to this Court.

On appeal, this Court concluded, in light of the
intervening case of Bates v. Dow Agrosciences LLC, 544 U.S.
431 (2005), in which the Supreme Court clarified the scope of
FIFRA preemption, that Plaintiffs’ claims of strict product
liability, negligent testing of AG600, and breach of express
warranty were not preempted by FIFRA, and it reversed the
District Court’s grant of summary judgment on those claims for
that reason. Mortellite v. Novartis Crop Protection, Inc., 460
F.3d 483, 489-90 (3d Cir. 2006). With respect to Plaintiffs’
claims of negligent misrepresentation/fraud and violation of the
NJCFA, to the extent that they were based on oral
misrepresentations by Novartis, we ruled that they were not
preempted by FIFRA. However, to the extent that these claims
were based on written misrepresentations, we remanded them to
the District Court, because the preemption issue with respect to
these claims had not been fully briefed and argued on appeal.
We remanded Plaintiffs’ failure-to-warn claim as well, also
because the issue of whether they were preempted by FIFRA
was not fully briefed and argued on appeal.

9
 Following remand, Novartis filed several summary
judgment motions, and in a series of rulings, the District Court
once again granted summary judgment to Novartis on all of
Plaintiffs’ claims. The District Court concluded that, to the
extent Plaintiffs’ claims of negligent misrepresentation/fraud
and violation of the NJCFA were based on written
misrepresentations by Novartis, they were preempted by FIFRA,
because the AG600 marketing brochure qualified as “labeling”
under the statute. Alternatively, the District Court concluded
that even if these claims were not preempted, summary
judgment was appropriate because “the record reflects Plaintiffs
never received and/or relied upon any written representations
outside of the product label before purchasing and using”
AG600. Indian Brand Farms, Inc. v. Novartis Crop Protection,
Inc., No. 99-2118, 2007 U.S. Dist. LEXIS 94443, at *23 n.5
(D.N.J. Dec. 20, 2007). To the extent Plaintiffs’ negligent
misrepresentation/fraud and NJCFA claims were based on
alleged oral misrepresentations by Novartis, the District Court
ruled that “there is no evidence that any oral representations
were made by Novartis regarding the use of Diazinon AG600
and/or relied upon by Plaintiffs.” Id. at *24. Regarding
Plaintiffs’ failure-to-warn claim, the District Court concluded
that success on this claim “would impose a labeling requirement
in addition to the requirements set forth in FIFRA,” and thus this
claim was preempted. Id. at *28. With reference to Plaintiffs’
design defect claim,4 the District Court concluded that tank

4
The District Court concluded that Plaintiffs’ negligent
testing claim was subsumed within their strict product liability
claim, because “claims for common law negligence are

10
mixing of AG600 was not a reasonably foreseeable use of the
product, and it was not “practical, feasible, and reasonable, as a
matter of law, to require [Novartis] to have tested its product in
combination with every fungicide for use on all plants.” 5 Indian
Brand Farms, Inc. v. Novartis Crop Protection, Inc., No. 99-
2118, slip op. at 11 (D.N.J. Oct. 10, 2008).

subsumed within the statutory cause of action, and are not viable
separately for harm caused by a defective product.” Indian
Brand Farms, 2007 U.S. Dist. LEXIS 94443, at *29 (quoting
Tirrell v. Navistar Int’l, Inc., 591 A.2d 643, 647 (N.J. Super. Ct.
App. Div. 1991)). Plaintiffs do not challenge this conclusion.
5
The District Court also granted Novartis’s motion for
summary judgment on Plaintiffs’ breach of express warranty
claim, ruling that the disclaimer on AG600’s label successfully
disclaimed all warranties (including express warranties), and
stating that “Plaintiffs do not dispute that this disclaimer
satisfies N.J. Stat. Ann. § 12A:2-316(2).” Indian Brand Farms,
Inc. v. Novartis Crop Protection, Inc., No. 99-2118, slip op. at
3 (D.N.J. Jan. 10, 2008). Thus, the breach of express warranty
claim “survived to the extent that it [was] based on statements
in the brochure.” Indian Brand Farms, Inc. v. Novartis Crop
Protection, Inc., No. 99-2118, slip op. at 11 (D.N.J. Oct. 10,
2008). Plaintiffs do not challenge the ruling regarding the
disclaimer on the label, and they expressly acknowledge that
they have “never argued that the breach of warranty claim was
based on the brochure.” Pl. Br. at 62; see also Pl. Reply Br. at
30-31. Thus, we need not address the breach of express
warranty claim.

11
 Plaintiffs once again appeal.6

II. Preemption and the Alleged Waiver of
Efficacy Jurisdiction

We first briefly address an overarching contention of
Plaintiffs. They insist that there can be no FIFRA preemption
of any form of crop damage claim because Congress granted the
EPA authority to waive its jurisdiction over pesticide efficacy
issues,7 and the EPA has opted in favor of exercising that
authority. It follows, in Plaintiffs’ view, that there is no federal
regulation of product efficacy and, accordingly, no preemption.

6
The District Court had jurisdiction over this action pursuant
to 28 U.S.C. § 1332. We have jurisdiction over the District
Court’s final order under 28 U.S.C. § 1291. We review the
District Court’s grant of summary judgment de novo. DIRECTV
Inc. v. Seijas, 508 F.3d 123, 125 (3d Cir. 2007) (citing CAT
Internet Servs., Inc. v. Providence Wash. Ins. Co., 333 F.3d 138,
141 (3d Cir. 2003)).
7
7 U.S.C. § 136a(c)(5) provides in part:

In considering an application for the registration
of a pesticide, the Administrator may waive data
requirements pertaining to efficacy, in which
event the Administrator may register the pesticide
without determining that the pesticide’s
composition is such as to warrant proposed claims
of efficacy.

12
We cannot agree for a number of reasons.

First, this case does not involve the efficacy of AG600.
Plaintiffs do not allege that it fails to perform in the manner
intended with respect to targeted pests; rather, they complain
about plant damage, which in FIFRA terminology is damage to
the “environment.” 7 U.S.C. § 136(j) (“The term ‘environment’
includes . . . all plants . . . .”); 40 C.F.R. § 158.130(e)(1) (“The
information required to assess hazards to nontarget organisms is
derived from tests to determine pesticidal effects on . . .
plants.”); Kuiper v. Am. Cyanamid, 131 F.3d 656, 664 (7th Cir.
1997) (concluding that “corn is a plant and falls within this
definition”); Etcheverry v. Tri-AG Serv., Inc., 993 P.2d 366, 375
(Cal. 2000) (stating that with regard to crop damage claims, “the
EPA’s waiver of the submission of efficacy data is irrelevant,
since plaintiffs complain of phytotoxicity, not inefficacy”).

Moreover, Congress did not authorize the EPA to waive
its jurisdiction over efficacy issues, and the EPA has not done
so. The authority referred to (see footnote 7,
supra) is authority only to waive “data requirements pertaining
to efficacy” when passing on an application for initial
registration of a pesticide. If there is cause for concern about
crop damage, initially or thereafter, the EPA will respond by
requiring additional data and, if appropriate, changes in label
warnings.8 It is thus not the case that the EPA no longer

8
As the Court noted in Etcheverry, 993 P.2d at 376, Section
136d(a)(2)

13
regulates efficacy.

Finally, we held when this case was first before us, based
upon Bates, that Plaintiffs’ failure-to-warn claim was preempted
if it imposed a labeling requirement different from or in addition
to the labeling requirement imposed by FIFRA. Plaintiffs’
broad sweeping waiver of efficacy jurisdiction argument is
inconsistent with that holding and, accordingly, with the law of
the case.

III. The Negligent Misrepresentation/Fraud and NJCFA
Claims
A.

As noted, the District Court held that Plaintiffs’ claims of

requires pesticide manufacturers to submit “toxic
or adverse effect incident reports,” specifically
including data concerning “alleged effect[s]
involv[ing] damage to plants.” (40 C.F.R. §
159.184(c)(5)(iv)(1999).) Significantly, the
regulation provides that information need not be
reported for an “incident” which “concerns non-
lethal phytotoxicity to the treated crop if the label
provides an adequate notice of such a risk.” (40
C.F.R. § 159.184(b)(4), italics added.) Moreover,
upon receiving crop damage reports under the
adverse effects reporting rule, the agency’s
regulatory options are not limited to cancellation;
it can also require labeling changes.

14
negligent misrepresentation/fraud and violation of the NJCFA
are preempted by FIFRA. We turn to that issue. FIFRA sets up
the basic system of pesticide regulation in the United States, and
it covers, inter alia, the use, sale, and labeling of pesticides.
FIFRA requires a manufacturer seeking to register a pesticide to
submit to the EPA “a complete copy of the labeling of the
pesticide, a statement of all claims to be made for it, . . . any
directions for its use,” and “a full description of the tests made
and the results thereof upon which the claims are based, or
alternatively a citation to [supporting] data that appear in the
public literature.” 7 U.S.C. § 136a(c)(1)(C), (F). “The EPA will
register the pesticide if it determines that the pesticide is
efficacious and will not cause unreasonable adverse effects on
humans and the environment, and that its label complies with
FIFRA’s prohibition on misbranding.” Mortellite, 460 F.3d at
488. Under FIFRA, a pesticide is “misbranded” if its labeling
contains statements that are “false or misleading in any
particular,” the pesticide’s labeling does not contain directions
for use which are “necessary for effecting the purpose for which
the product is intended,” or “the label does not contain a
warning or caution statement which may be necessary . . . to
protect health and the environment.” 7 U.S.C. § 136(q)(1).

Importantly for present purposes, FIFRA provides that a
“State may regulate the sale or use of any federally registered
pesticide or device in the State, but only if and to the extent the
regulation does not permit any sale or use prohibited by this
Act.” 7 U.S.C. § 136v(a). Additionally, it provides that states
“shall not impose or continue in effect any requirements for
labeling or packaging in addition to or different from those
required under this Act.” 7 U.S.C. § 136v(b). Thus, the states

15
have joint control with the federal government in regulating the
sale and use of pesticides with only the exception of the EPA’s
exclusive supervision of labeling. Novartis does not contend
that the state law relied upon by Plaintiffs permits a sale or use
prohibited by FIFRA. Accordingly, the preemption issue before
us turns not on whether Novartis’s brochure is related to the sale
or use of a pesticide, but rather on whether it constitutes labeling
within the meaning of FIFRA. Moreover, even if the brochure
constitutes labeling, the law relied upon by Plaintiffs is not
preempted unless it imposes a requirement or “requirements . .
. in addition to or different from those required under” FIFRA.
Id.; Bates, 544 U.S. at 444.

In Bates, a group of Texas peanut farmers alleged that a
newly marketed pesticide manufactured and distributed by
defendant Dow severely damaged their crops. The pesticide
bore a label stating that use of the pesticide was “recommended
in all areas where peanuts are grown,” but the farmers alleged
that Dow should have known that the pesticide would stunt the
growth of peanuts in soils with pH levels of 7.0 or greater.
Bates, 544 U.S. at 435. When the farmers applied the pesticide
to their western Texas farms, where the soil typically has a pH
level of 7.2 or higher, crops were damaged. The farmers
brought claims of strict product liability, negligence, fraud,
breach of warranty, and violation of the Texas Deceptive Trade
Practices Act, Tex. Bus. & Com. Code Ann. § 17.01, et seq. In
the course of determining whether these claims were preempted
by FIFRA, the Supreme Court articulated the following two-part
test:

For a particular state rule to be pre-empted, it

16
 must satisfy two conditions. First, it must be a
requirement “for labeling or packaging;” rules
governing the design of a product, for example,
are not pre-empted. Second, it must impose a
labeling or packaging requirement that is “in
addition to or different from those required under
this subchapter.” A state regulation requiring the
word “poison” to appear in red letters, for
instance, would not be pre-empted if an EPA
regulation imposed the same requirement.

Id. at 444 (italics in original).

The Supreme Court in Bates: (1) held that plaintiffs’
claims of strict product liability, negligent testing, and breach of
express warranty were not preempted, because “[n]one of these
common law rules requires that manufacturers label or package
their products in any particular way;” (2) concluded that
plaintiffs’ claims under the Texas Deceptive Trade Practices Act
were not preempted, to the extent that statute might provide a
remedy for the breach of an express warranty; and (3) remanded
the case to the Court of Appeals to determine whether,
consistent with the Supreme Court’s reasoning, plaintiffs’ fraud
and failure-to-warn claims were preempted. Id. at 444-47.

FIFRA defines “label” as “the written, printed, or graphic
matter on, or attached to, the pesticide or device or any of its
containers or wrappers.” 7 U.S.C. § 136(p)(1). FIFRA defines
“labeling” as:

all labels and all other written, printed, or graphic

17
 matter –

(A) accompanying the pesticide or device at any
time; or

(B) to which reference is made on the label or in
literature accompanying the pesticide or device,
except to current official publications of the
Environmental Protection Agency, the United
States Departments of Agriculture and Interior,
the Department of Health and Human Services,
State experiment stations, State agricultural
colleges, and other similar Federal or State
institutions or agencies authorized by law to
conduct research in the field of pesticides.

7 U.S.C. § 136(p)(2). It is undisputed that the AG600 marketing
brochure was not “on, or attached to” AG600, and so it cannot
qualify as a “label.” It is equally unquestionable, though, that
the brochure qualifies as “all other written, printed, or graphic
matter.” Given that the brochure is not referenced on the
AG600 “label,” and that there is no other writing accompanying
the product which references it, the question of whether the
brochure qualifies as “labeling” thus comes down to whether the
brochure was “accompanying” AG600, as that term is used in
the statute. The case law on the meaning of “accompanying” in
this and similar contexts is sparse but helpful.

The Federal Food, Drug, and Cosmetic Act of June 25,
1938, 21 U.S.C. § 301, et seq., defined “labeling” as “all labels
and other written, printed, or graphic matter (1) upon any article

18
or any of its containers or wrappers, or (2) accompanying such
article.” Kordel v. United States, 335 U.S. 345, 347-48 (1948).
The term “label” was defined as “a display of written, printed,
or graphic matter upon the immediate container of any article.”
Id. at 348 n.2. The Supreme Court was asked in Kordel to
determine whether this definition of “labeling,” similar to that
in FIFRA, covered sales literature that was not distributed with
a drug. The Court declined to read “accompanying such article”
as limited to materials “accompanying such article in the
package or container.” Rather, it was the content of the
materials, not their physical proximity, that controlled:

One article or thing is accompanied by
another when it supplements or explains it, in the
manner that a committee report of the Congress
accompanies a bill. No physical attachment one
to the other is necessary. It is the textual
relationship that is significant.

Id. at 350.

The Court acknowledged that Congress had not intended
that the labeling provisions of the Act regulate drug advertising
generally. It held, however, that advertising matter was
nevertheless “labeling” where it “performs the same function as
it would if it were on the article or on the containers or
wrappers.” Id. at 351. The Supreme Court concluded that the
particular material before it was “labeling” because it instructed
the ultimate users how to use the drugs:

It explained their uses. Nowhere else was the

19
 purchaser advised how to use them. It constituted
an essential supplement to the label attached to
the package.

Id. at 348.

Justice Black’s dissenting opinion agreed with this aspect
of the Court’s decision. He summarized the Court’s holding as
follows:

I agree that a drug is misbranded within the
meaning of the statute if false and misleading
written, printed, or graphic matter is either placed
upon the drug, its container or wrappers, or used
in the sale of the drug as a supplement to the
package label to advise consumers how to use the
drug.

Id. at 352.

The decision of the Second Circuit in New York State
Pesticide Coalition, Inc., v. Jorling, 874 F.2d 115 (2d Cir.
1989), appears to be the only federal appellate decision which
speaks directly to the meaning of “accompanying” in the context
of FIFRA. It too focuses on the content of material alleged to
be labeling, rather than the manner of its distribution, and on
whether it instructs the ultimate user on how to use the product.

In Jorling, the Court resolved the question of whether a
“New York law, designed to assure public awareness that
poisonous chemicals are being utilized,” created “labeling”

20
requirements under FIFRA, and was therefore preempted. Id. at
116. The New York law at issue required all commercial
pesticide applicators to: (1) “enter into a written contract with
the owner of the premises where extermination is to occur;” (2)
“provide a list of the chemicals to be applied along with any
warnings which appear on the pesticide’s . . . label;” (3) “give
the prospective purchaser a notification ‘cover sheet’ which
provides further warnings and safety information;” (4) post
signs on the perimeter of the premises, “instructing persons not
to enter the area for a 24 hour period;” and (5) in some instances
“notify the public in newspapers of prospective use over large
tracts.” Id. at 116-17.

The plaintiffs in the case, a coalition of pesticide
applicators, argued that the New York notification requirements
constituted “labeling” under FIFRA and were therefore
preempted because those provisions required additional
“written, printed, or graphic matter” which “accompan[ies] the
pesticide or device at any time.” Id. at 118-19. The Jorling
Court disagreed, concluding that even though these notification
materials would be “present in some spatial and temporal
proximity” to the pesticides, the materials would not
“accompany” the pesticides, as that term is used under FIFRA.
Id. at 119. As the Jorling Court advised, “‘[l]abeling’ is better
understood by its relationship, rather than its proximity, to the
product.” Id. The Court instructed that “FIFRA ‘labeling’ is
designed to be read and followed by the end user.” Id. It then
concluded:

In enacting § 24(b), Congress clearly sought to set
minimum standards for pesticide labeling, see

21
 Cox v. Velsicol Chemical Corp., 704 F. Supp. 85,
86-87 (E.D. Pa. 1989), not to prevent states from
regulating the “sale and use” of the poisonous
chemical substances through mandatory written,
printed, or graphic materials revealing the
ingredients.

[The District Court] properly noted that
FIFRA’s prohibition of state labeling “in addition
to or different from” that approved by the EPA
has as “its main focus . . . preserving the force of
the information contained in the FIFRA label.”
Notification requirements such as cover sheets,
signs, and newspaper advertisements do not
impair the integrity of the FIFRA label. Rather,
they serve to further the purpose of the statute by
enlisting state aid to prevent “unreasonable
adverse effects [of pesticide use] on the
environment.” 7 U.S.C. § 136a(c)(5).

To hold otherwise would preempt a wide
range of state activities which Congress did not
subject to the jurisdiction of the EPA.

Id. at 119-20.

While, as the District Court stressed, these precedents do
rule out physical proximity to the product as the controlling
factor, they also speak persuasively to the necessity of
constraining the scope of “accompanying” if Congress’s intent
is to be served. As the Jorling Court stressed, “Congress

22
explicitly preserved the states’ right to regulate the ‘sale and
use’ of pesticides while reserving ‘labeling’ to federal control.”
Id. at 118. The labeling provisions of FIFRA were thus clearly
not intended to regulate sales literature generally and the legal
obligations that can arise therefrom. Congress’s objective was
much narrower. It sought to impose uniformity of labeling
throughout the country, Bates, 544 U.S. at 542,9 and to protect
the integrity of that uniform labeling. Jorling, 874 F.2d at 119.

Novartis’s AG600 marketing brochure cannot be read as
providing a supplement to the AG600 label. Its function is to
point out the advantages of the new product to wholesalers and
retailers, as well as farmers. Importantly, it contains no
instructions for the use of AG600. If we were to construe the
term “labeling” as including the AG600 brochure, then all sales
and marketing materials would necessarily be included within
the scope of that term. We are confident that such was not the
intent of Congress.

In light of the foregoing, the District Court erred when it
concluded that Novartis’s marketing brochure qualified as
“labeling” under FIFRA. Plaintiffs’ claims of negligent

9
Bates reminds us that the “legislative history of the 1972
amendments [to FIFRA] suggests that Congress had conflicting
state labeling regulations in mind when crafting” the labeling
provisions. Bates, 544 U.S. at 452 n.26. By contrast, “the
lengthy legislative history is barren of any indication that
Congress meant to abrogate most of the common- law duties
long owed by pesticide manufacturers.” Id.

23
misrepresentation/fraud and violation of the NJCFA are not
preempted by FIFRA.

B.

The District Court, however, as an alternative basis for its
summary judgment ruling on the claims of negligent
misrepresentation/fraud and violation of the NJCFA, concluded
that “the record reflects Plaintiffs never received and/or relied
upon any written representations outside of the product label
before purchasing and using” AG600. Indian Brand Farms,
2007 U.S. Dist. LEXIS 94443, at *23 n.5. Thus, the District
Court ruled that even if these claims were not preempted by
FIFRA, and even if the statements in the marketing brochure
were fraudulent misrepresentations, Plaintiffs could not prevail
because they failed to show that they relied on the statements to
their detriment. We are unpersuaded by this alternative analysis.

In New Jersey, a successful claim of fraud requires proof
of five elements: “(1) a material misrepresentation of a
presently existing or past fact; (2) knowledge or belief by the
defendant of its falsity; (3) an intention that the other person rely
on it; (4) reasonable reliance thereon by the other person; and
(5) resulting damages.” Gennari v. Weichert Co. Realtors, 691
A.2d 350, 367 (N.J. 1997). “Negligent misrepresentation is . .
. [a]n incorrect statement, negligently made and justifiably relied
upon, [and] may be the basis for recovery of damages for
economic loss . . . sustained as a consequence of that reliance.”
H. Rosenblum, Inc. v. Adler, 461 A.2d 138, 142-43 (N.J. 1983).

Regarding the reliance element, it is enough for a

24
plaintiff to show “indirect reliance.” The New Jersey Supreme
Court has explained this concept in the following manner:

Indirect reliance allows a plaintiff to prove a fraud
action when he or she heard a statement not from
the party that defrauded him or her but from that
party’s agent or from someone to whom the party
communicated the false statement with the
intention that the victim hear it, rely on it, and act
to his or her detriment.

Kaufman v. I-Stat Corp., 754 A.2d 1188, 1195 (N.J. 2000)
(citing Judson v. Peoples Bank & Trust Co., 134 A.2d 761 (N.J.
1957); Metric Inv., Inc. v. Patterson, 244 A.2d 311 (N.J. Super.
Ct. App. Div. 1968)).

“[T]o state a claim under the [NJCFA], a plaintiff must
allege each of three elements: (1) unlawful conduct by the
defendants; (2) an ascertainable loss on the part of the plaintiff;
and (3) a causal relationship between the defendants’ unlawful
conduct and the plaintiff’s ascertainable loss.” N.J. Citizen
Action v. Schering-Plough Corp., 842 A.2d 174, 176 (N.J.
Super. Ct. App. Div. 2003). The proscribed unlawful conduct
includes, inter alia, “any unconscionable commercial . . . fraud,
false pretense, [or] misrepresentation” and “the knowing . . .
omission of any material fact with intent that others rely upon
such . . . omission.” N.J. Stat. Ann. § 56:8-2. While the
required “causal relationship” may be shown under some
circumstances without evidence that would satisfy the reliance
requirement of common law fraud, evidence of the kind of
indirect reliance which satisfies the common law requirement

25
would clearly satisfy the causal relationship requirement of the
NJCFA. See Varacallo v. Mass. Mut. Life Ins. Co., 752 A.2d
807, 817 (N.J. Super. Ct. App. Div. 2000).

Plaintiffs concede that “there was no credible evidence
that [they] directly relied on the brochure” before purchasing
and applying AG600. Pl. Reply Br. at 16. Plaintiffs contend,
though, that they have made a sufficient showing of indirect
reliance to avoid summary judgment, given the evidence
regarding the recommendations of AG600 by Rutgers scientists
at a “twilight meeting” in May 1997, and the Blueberry Bulletin
that was published on May 29, 1997. We agree with Plaintiffs
as to all Plaintiffs except Indian Brand Farms.

Dr. Sridhar Polavarapu of Rutgers testified that he relied
on the marketing brochure in recommending to the farmers at
the twilight meeting that they purchase and use AG600 on
blueberries:

Q: At one of these Twilight meetings, did you
talk about the new product, AG600?

A: Yes, I do recall talking about the new
product.

Q: And do you remember which meeting that
was, Doctor?

A: That’s more than likely the May meeting,
yeah.

26
 Q: Do you remember what you said about it?

A: I probably said what I said in the
newsletter, which is, you know, this is a
newer product that is coming here and it is
purportedly to be safer to the environment
and because it doesn’t have solvents.
Basically, I would have said what is
provided to me vis-a-vis the information,
as per the information from the
manufacturer.

***

Q: Okay. So, as we sit here today, what you
do recall is that you did say something to
the effect that it was purported to be a
safer product, the AG600?

A: It’s based on – based on what I learned
from the literature.

Q: Yes.

A: I would have said something like that.

App. at A428-30. Further, Dr. Polavarapu testified that he relied
on the marketing brochure in writing the Blueberry Bulletin
article recommending the use of AG600 on blueberries:

Q. And as you sit here today, you do recall

27
 reading something [regarding better crop
safety] that was sent to you by Novartis
back before you had the Twilight meeting
with the farmers?

A: Yes.

Q: And this written material that was sent to
you by Novartis did say specifically
something to the effect that it was better
for crop safety?

A: Yes.

***

Q: And again, the only things you can think of
now that were given to you by Novartis as
you sit here today that you relied upon to
make that statement [regarding crop safety
in the Blueberry Bulletin] was the
brochure of three or four pages?

A: Correct.

Id. at A432-35.

Plaintiffs, in turn, certified and/or testified that they relied
upon the “twilight meeting” recommendation of Dr. Polavarapu

28
and the Blueberry Bulletin in purchasing and mixing AG600.10
In light of this evidence, Plaintiffs have made a sufficient
showing that they indirectly relied upon the AG600 marketing
brochure in making their decision to purchase or apply AG600.

Novartis raises an issue, however, based on the dates of
Plaintiffs’ purchase and use of AG600, as to whether Plaintiffs
could have indirectly relied on the brochure. Novartis points out
that most Plaintiffs purchased or used AG600 prior to the May
29, 1997, publication date of the Blueberry Bulletin. See
footnote 2, supra. However, this does not resolve whether the
two Plaintiffs who clearly purchased and used AG600 after May
29, 1997 – Wm. Cappuccio & Sons and Clark Farms – did so in
reliance on the Blueberry Bulletin. Nor does it negate the
possibility that Plaintiffs relied on Dr. Polavarapu’s
recommendation at the earlier “twilight meeting.” The

10
See, e.g., App. at A114-15, A904 (deposition and
certification of Joyce Cappuccio, of Plaintiff Wm. Cappuccio &
Sons); A176-79, A922 (deposition and certification of Gregory
Clark, of Plaintiff Clark Farms); A173-74, A915 (deposition and
certification of Anthony DiMeo, of Plaintiff Columbia Fruit
Farms, Inc.); A126, A909 (deposition and certification of
Michael DiMeo, of Plaintiff Indian Brand Farms); A250-52,
A927 (deposition and certification of Anthony Melora, of
Plaintiff Melora Farms); A936 (certification of Russell
Franceschini, of Plaintiff R&S Franceschini Farms); A942
(certification of Joseph Martinelli, of Plaintiff Blu-Jay Farms);
A946 (certification of Gene Martinelli, of Plaintiff Columbia
Cranberries.).

29
testimony in the record indicates different dates for the “twilight
meeting,” 11 but construing this testimony in a light most
favorable to Plaintiffs, Plaintiffs (with the exception of Indian
Brand Farms) have demonstrated that a genuine issue of
material fact exists as to whether the farmers indirectly relied on
the representations in the marketing brochure in their decision
to purchase and mix AG600.

The problem for Plaintiff Indian Brand Farms is that it
purchased AG600 on April 21, 1997, and it applied AG600 on
May 10, 1997, before either the “twilight meeting” or the
publication of the Blueberry Bulletin. Thus, Indian Brand Farms
is the only plaintiff that is temporally excluded from having
indirectly relied on the AG600 marketing brochure.

In light of the foregoing, the District Court’s grant of
summary judgment to Novartis on the claims of negligent
misrepresentation/fraud and violation of the NJCFA based on
written representations will be reversed as to all Plaintiffs except
Indian Brand Farms. The District Court’s grant of summary
judgment on these claims as to Plaintiff Indian Brand Farms will
be affirmed.

Our discussion of the District Court’s alternative holding

11
See App. at A451 (Donato recalling the date of the “twilight
meeting” as around May 15, 1997), A399 (Dr. Pavlis recalling
the date of the “twilight meeting” as around May 25, 1997),
A904 (certification of Joyce Cappuccio identifying the date of
the “twilight meeting” as May 21, 1997).

30
regarding Plaintiffs’ claims of negligent misrepresentation/fraud
and violation of the NJCFA has thus far been limited to claims
based on written representations. As noted in Part I.B above,
the District Court also granted summary judgment to Novartis
on the negligent misrepresentation/fraud and NJCFA claims to
the extent they were based on alleged oral misrepresentations.
We will affirm this grant of summary judgment, because we
agree with the District Court that Plaintiffs have failed to
“identif[y] with any certainty any oral representations made by
Novartis [regarding the use of AG600] that they relied on.”
Indian Brand Farms, 2007 U.S. Dist. LEXIS 94443, at *24.

IV. The Failure-to-Warn Claim

Plaintiffs seek to impose liability on Novartis for failing
to warn of dangers to their crops from tank mixing AG600 with
the fungicides Captan and Captec. Plaintiffs contend that
FIFRA requires labels to contain sufficient warnings, see 7
U.S.C. § 136(q)(1), and, accordingly, that their failure-to-warn
claim would only impose labeling requirements equivalent and
parallel to those of FIFRA, not labeling requirements in addition
to or different from those of FIFRA.

We note at the outset that prior to the Supreme Court’s
decision in Bates, several of our sister Courts of Appeals held
that failure-to-warn claims based on inadequate labeling were
pre-empted by FIFRA, on the reasoning that “[i]n order to
prevail on . . . failure to warn claim[s], [plaintiffs] would have
to prove that [product] labels [approved by the EPA] contained
insufficient information and that different labels were
warranted,” and so “[a]warding damages on the[se] . . . claim[s]

31
would therefore be tantamount to allowing the state[s] . . . to
regulate pesticide labeling indirectly, an action which is
specifically prohibited by § 136v(b).” Taylor AG Indus. v.
Pure-Gro, 54 F.3d 555, 560 (9th Cir. 1995); see also Bice v.
Leslie’s Poolmart, Inc., 39 F.3d 887, 888 (8th Cir. 1994)
(holding that failure-to-warn claims are preempted by FIFRA
because “actual agency approval eliminates any possible claims
under state tort law for failure to comply with federal [labeling]
requirements”) (internal quotation omitted); MacDonald v.
Monsanto Co., 27 F.3d 1021, 1025 (5th Cir. 1994) (holding that
“the express language of FIFRA clearly indicates that Congress
intended that the federal act preempt conflicting state law,
including state common law tort claims” of failure-to-warn);
Ark.-Platte & Gulf P’ship v. Van Waters & Rogers, Inc., 981
F.2d 1177, 1179 (10th Cir. 1993) (“To the extent that state tort
claims in this case require a showing that defendants’ labeling
and packaging should have included additional, different, or
alternatively stated warnings from those required under FIFRA,
they would be expressly preempted.”); Worm v. Am. Cyanamid
Co., 5 F.3d 744, 748 (4th Cir. 1993) (“The [plaintiffs’] argument
that their state law claims are based on duties not inconsistent
with those imposed by FIFRA has no merit . . . , [because] to
argue that the warnings on the label are inadequate is to seek to
hold the label to a standard different from the federal one.”).
However, Bates introduced a different analysis of FIFRA
preemption, one that compels us to depart from this pre-Bates
precedent.

As we have earlier explained, the Bates Court made clear
that failure-to-warn claims were not preempted unless they
would impose a requirement “in addition to or different from”

32
those required by FIFRA. Bates, 544 U.S. at 447. It stressed
that it was thus endorsing a “‘parallel requirements’ reading of
§ 136v(b)” which preserved state law duties that are consistent
with those imposed by FIFRA, whether or not state law provides
a remedy that FIFRA did not provide.12 Id. The Court noted
that “[p]rivate remedies that enforce federal misbranding
requirements would seem to aid, rather than hinder, the
functioning of FIFRA.” Id. at 451.

Also, as earlier noted, the Bates Court, because of
insufficient briefing, remanded the case to the Court of Appeals
to determine whether the plaintiffs’ failure-to-warn claim would
impose any requirements in addition to or different from the
requirements under FIFRA. In doing so, it provided guidance
which we find helpful here. First of all, the remand established
that mere inconsistency between the duty imposed by state law
and the content of a manufacturer’s labeling approved by the
EPA at registration did not necessarily mean that the state law

12
The Court also excluded from preemption state law
requirements that are in fact narrower than those required by
FIFRA, because “[w]hile such a narrower requirement might be
‘different from’ the federal rules in a literal sense, such a
difference would surely provide a strange reason for finding pre-
emption of a state rule insofar as it duplicates the federal rule.”
Bates, 544 U.S. at 448 n.23 (quoting Medtronic, Inc. v. Lohr,
518 U.S. 470, 495 (1996)).

33
duty was preempted.13 We must look to the requirements
imposed by FIFRA. Accordingly, the Court suggested that, on
remand, the Court of Appeals look to whether the failure-to-
warn claim was “not equivalent to FIFRA’s misbranding
standards.” Id. at 453 n.27. If equivalency is found between the
claim and the statutory text, the Court should determine whether
there are “any EPA regulations that further refine those general
standards in any way that is relevant to petitioners’ allegations.”
Id.14 “To the extent that EPA [has] promulgate[d] such
regulations . . . , they will necessarily affect the scope of pre-
emption under § 136v(b).” Id. at 453 n.28.

FIFRA’s misbranding provisions require “warning[s] or
caution statement[s] which may be necessary . . . to protect
health and the environment.” 7 U.S.C. § 136(q)(1)(G). The
“term ‘environment’ includes water, air, land, and all plants and
man and other animals living therein . . . .” 7 U.S.C. § 136(j);
Kuiper, 131 F.3d at 664; Etcheverry, 993 P.2d at 375. The

13
Indeed, FIFRA expressly provides that while “registration
of a pesticide shall be prima facie evidence that the pesticide, its
labeling and packaging comply with the registration provisions
of the Act,” “in no event shall registration be construed as a
defense for the commission of any offense under the Act.” 7
U.S.C. § 136a(f)(2).
14
As the Bates Court noted, “[a]t present, there appear to be
relatively few regulations that refine or elaborate upon FIFRA’s
broadly phrased misbranding standards.” Bates, 544 U.S. at 453
n.28.

34
NJPLA imposes liability on a manufacturer where “the product
causing the harm was not reasonably fit, suitable or safe for its
intended purpose because it . . . failed to contain adequate
warnings or instructions.” N.J. Stat. Ann § 2A:58C-2. This
provision has been interpreted as consistent with Section 2 of
The Restatement (Third) of Torts: Product Liability, i.e.,
liability is imposed for inadequate warnings “when the
foreseeable risks of harm posed by the product could have been
reduced or avoided by the provision of reasonable . . . warnings
. . . and the omissions of the . . . warnings renders the product
not reasonably safe.” In the context of this case, this does not
appear to us to impose a duty inconsistent with or in addition to
the duty imposed by the text of the warning provisions of
FIFRA’s misbranding requirements. Moreover, Novartis does
not purport to have identified any duty imposed by New Jersey
law that does not come within this statutory text. Nor has
Novartis identified any EPA regulations that “further refine
those general standards in any way that is relevant” to Plaintiffs’
allegations. Bates, 544 U.S. at 453 n.27. And we have found
none.15 Rather, Novartis’s response to Plaintiffs’ “parallel

15
40 C.F.R. § 156.10 provides in relevant part:

(a) General – (1) Contents of the label.
Every pesticide product shall bear a label
containing the information specified by the Act
and the regulations in this part. The contents of a
label must show clearly and prominently the
following: . . .
(vii) Hazard and precautionary statements

35
requirements” interpretation of the state law and FIFRA is an
EPA “Notice” of “Revised Policy on Label Claims for Tank
Mixing” issued in January 1982. As its title indicates, the
revised policy is directed to applications for registration where
the proposed label, unlike that of AG600, claims that the
product is suitable for tank mixing. Under the revised policy,
the “EPA will usually approve tank mix label claims without
supporting compatibility and residue data if” certain specified
conditions are met, including:

(2) The chemical characteristics of all products to
be used in the mix are such that no incompatibility
or potentiation is likely to occur. (The Agency
reserves the right to request appropriate data if it
determines that a problem could arise.)

as prescribed in subpart D of this part for human
and domestic animal hazards and subpart E of this
part for environmental hazards.

Subpart E, § 156.80, et seq., provides in part:

(a) Requirement. Each product is required
to bear hazard and precautionary statements for
environmental hazards, including hazards to non-
target organisms, as prescribed in this subpart.
Hazard statements describe the type of hazard that
may be present, while precautionary statements
direct or inform the user of actions to take to
avoid the hazard or mitigate its effects.

36
Pesticide Registration (PR) Notice 82-1 (Jan. 12, 1982).

While this policy revision was not applicable to AG600,
Novartis finds it to be of controlling significance because its
discussion of the “Background” of the policy revision contains
the following statements:

In the past, the Agency has required that
applications for new registration or for amended
registration involving claims for tank mixing the
pesticide product with another pesticide product
be supported by compatibility data and, if the
mixture is to be used on a food or feed crop, by
residue data demonstrating that the mixture would
not result in residues higher than the tolerance
established for each active ingredient. However,
in cases where the pesticide labels are silent on
the matter of tank mixing, applicators have been
permitted to use tank mixes at their own risk if the
sites or crops on which the mix is to be used are
registered sites and crops for all the pesticides
contained in the mix and if all pertinent
limitations, use directions, and precautions are
followed.

Id. (emphasis added).

For Novartis, this statement establishes that the EPA
regards FIFRA as imposing no label requirements for a warning
of an unreasonable risk of plant damage from tank mixing so
long as no tank mixing claim is made. Novartis therefore

37
concludes that Plaintiffs’ failure-to-warn claim imposes a
labeling requirement not required by FIFRA. We are not
persuaded.

Bates teaches that there is a strong presumption against
preemption of state law:

Even if Dow had offered us a plausible
alternative reading of § 136v(b) – indeed, even if
its alternative were just as plausible as our reading
of that text – we would nevertheless have a duty
to accept the reading that disfavors pre-emption.
“[B]ecause the States are independent sovereigns
in our federal system, we have long presumed that
Congress does not cavalierly pre-empt state-law
causes of action.” Medtronic, 518 U.S. at 485. In
areas of traditional state regulation, we assume
that a federal statute has not supplanted state law
unless Congress has made such an intention
“‘clear and manifest.’” New York State
Conference of Blue Cross & Blue Shield Plans v.
Travelers Ins. Co., 514 U.S. 645, 655 (1995)
(quoting Rice v. Santa Fe Elevator Corp., 331
U.S. 218, 230 (1947)).

Bates, 544 U.S. at 449. Given this admonition, we would be
most reluctant to base a preemption holding on a background
observation of the kind relied upon by Novartis.

More importantly, however, this observation does not
relate to the labeling requirements for manufacturers. Rather, it

38
is addressed to what applicators have been permitted to do
where the manufacturers’ label makes no claim concerning tank
mixing. The duty of manufacturers under FIFRA is to avoid
misbranding, and that duty is not limited to the claims they make
for their products. Indeed, the fact that the EPA does not share
Novartis’s view of the limitation on its duty to warn is apparent
from the fact that, after Plaintiffs’ crop damage was called to the
attention of the EPA, it required that a warning of risk of tank
mixing be added to the AG600 label, even though the label
continued to contain no claim of tank mixing.

The NJPLA imposes a requirement for a warning of risk
to property which is consistent with Section 2 of the
Restatement (Third) of Torts: Products Liability. That
requirement is thus not an extraordinary one. It is consistent in
scope with the generally accepted commercial expectation.
Moreover, we note that FIFRA expressly endorses a concept
quite similar to New Jersey’s duty to warn of risks associated
with objectively foreseeable uses. Section 136a(c)(5) provides
in part as follows:

(5) Approval of registration

The Administrator shall register a pesticide
if the Administrator determines that, when
considered with any restrictions imposed under
subsection (d) –
(A) its composition is such
as to warrant the proposed claims
for it;
(B) its labeling and other

39
 material required to be submitted
comply with the requirements of
this Act;
(C) it will perform its
intended function w ithout
unreasonable adverse effects on the
environment; and
(D) when used in
accordance with widespread and
commonly recognized practice it
w ill not generally cause
unreasonable adverse effects on the
environment.

7 U.S.C. § 136a(c)(5) (emphasis added). We find it significant
that Congress found it advisable to include the provisions of (D)
in addition to the “intended function” provisions of (C).

Given that Congress in FIFRA imposed a generalized
duty to include in one’s labeling any warning statement
necessary to protect plant life and the fact that the EPA has not
seen fit to narrow that duty, we find no basis for concluding that
New Jersey law imposes a duty to warn different than or in
addition to the scope of the requirement imposed by FIFRA.
The District Court’s judgment regarding Plaintiffs’ failure-to-
warn claim will be reversed.16

16
In addition to arguing that Plaintiffs’ failure-to-warn claim
is preempted by FIFRA, Novartis contends that it had no duty to
warn about the dangers of tank mixing AG600 because there

40
 V. The Design Defect Claim

The final question before us is whether Novartis was
entitled to summary judgment on Plaintiffs’ design defect claim.
The NJPLA provides that:

A manufacturer or seller of a product shall be
liable in a product liability action only if the
claimant proves by a preponderance of the
evidence that the product causing the harm was
not reasonably fit, suitable or safe for its intended
purpose because it: . . . was designed in a
defective manner.

N.J. Stat. Ann. § 2A:58C-2. Plaintiffs insist that AG600 was
“designed in a defective manner,” because it contained the ionic
surfactant that Plaintiffs allege caused the damage to their crops
when AG600 was mixed with certain fungicides.

To succeed under a strict liability design defect theory in
New Jersey, “a plaintiff must prove that (1) the product was
defective; (2) the defect existed when the product left the hands

was, as a matter of law, no duty to test AG600 in combination
with fungicides. However, as we explain in the next section, see
infra Part V, there remains a genuine issue of material fact as to
whether Novartis had a duty to perform reasonable testing
regarding AG600’s compatibility with fungicides, as well as
whether tank mixing was a reasonably foreseeable use of
AG600.

41
of the defendant; and (3) the defect caused the injury to a
reasonably foreseeable user.” Jurado v. W. Gear Works, 619
A.2d 1312, 1317 (N.J. 1993). “Because this case involves a
design defect, as distinguished from a manufacturing defect,
plaintiff must show specifically that the product ‘is not
reasonably fit, suitable and safe for its intended or reasonably
foreseeable purposes.’” Id. (quoting Michalko v. Cooke Color
& Chem. Corp., 451 A.2d 179, 183 (N.J. 1982); Suter v. San
Angelo Foundry & Mach. Co., 406 A.2d 140, 149 (N.J. 1979)).

“The decision whether a product is defective because it
is ‘not reasonably fit, suitable and safe’ for its intended purposes
reflects a policy judgment under a risk-utility analysis” that
“seeks to determine whether a particular product creates a risk
of harm that outweighs its usefulness.” Id. Under this analysis,
a manufacturer is not liable for damages where a person misuses
the product, unless that misuse was “objectively foreseeable.”
See Port Auth. of N.Y. & N.J. v. Arcadian Corp., 189 F.3d 305,
314 (3d Cir. 1999) (stating that the “unforeseeable misuse of a
product may not give rise to strict liability,” because “where ‘the
use of the product is beyond its intended or reasonably
anticipated scope,’ an injury resulting from that use is ‘not . . .
probative of whether the product was fit, suitable, and safe’”)
(quoting Suter, 406 A.2d at 144). Thus, the first step of the risk-
utility analysis is for the jury to “determine whether the plaintiff
used the product in an objectively foreseeable manner.” Jurado,
619 A.2d at 1319.

Novartis contends that tank mixing, as a matter of law,
was not a reasonably foreseeable use of AG600. We conclude
that there is a genuine issue of material fact with respect to that

42
issue. The evidence in the summary judgment record would
support a finding of fact that Plaintiffs’ “misuse” of AG600 was
objectively, that is reasonably, foreseeable. First, the economics
and utility of tank mixing make it almost inevitable that such
mixing will occur. See, e.g., App. at A702 (testimony of
Plaintiff Gene Martinelli) (“If you apply more than one chemical
and it is compatible, that’s one less time you have to go through
the fields.”), A886 (Expert Report of Dr. Carl Whitcomb) (“The
tank mixing of insecticides with . . . fungicides is common
practice as it allows the farmer to address several problems with
one spray application . . . thereby saving time and equipment
expense . . . .”). Second, several Plaintiffs testified that tank
mixing was a well-known and common practice among farmers.
See, e.g., App. at A204 (Plaintiff Russell Franceschini) (stating
that the prior versions of Diazinon “and Captan has been mixed
for years”), A708 (Plaintiff Anthony Melora) (“[W]e always –
I always mixed the fungicide with insecticide.”). Third, several
Plaintiffs testified that pesticide dealers and Rutgers personnel
recommended tank mixing AG600 with fungicides, which
indicates industry practice. See, e.g., App. at A115 (Plaintiff
Joyce Cappuccio), A126-27 (Plaintiff Michael DiMeo), A165
(Plaintiff Anthony DiMeo), A216-17 (Plaintiff Joseph
Martinelli). Finally, Novartis’s own representatives testified
that they were aware that farmers frequently mixed pesticides
and fungicides. See, e.g., App. at A716-17, A723-24. This
evidence is sufficient for a jury to conclude that tank mixing
pesticides and fungicides was a reasonably foreseeable practice.

Novartis relies upon this Court’s decision in Arcadian in
arguing that tank mixing was not a reasonably foreseeable use
of AG600. In Arcadian, the plaintiff sought to hold the

43
defendants, manufacturers of fertilizers, liable for massive
damage resulting from the 1993 terrorist bombing of the World
Trade Center in New York because the terrorists used the
defendants’ fertilizers in constructing the explosive device.
Arcadian, 189 F.3d at 308. One of plaintiff’s claims was a
products liability claim under New Jersey law, and he argued
that defendants owed a duty to plaintiff, even though “there is
no allegation that the fertilizer products were dangerous in and
of themselves.” Id. at 314. With reference to whether building
an explosive was a foreseeable use of the fertilizer, we first
explained that in New Jersey, foreseeability means objective
foreseeability, which:

means reasonable foreseeability. The standard
“does not affix responsibility for future events
that are only theoretically, remotely, or just
possibly foreseeable, or even simply subjectively
foreseen by a particular manufacturer.” . . . Rather
it “applies to those future occurrences that, in
light of the general experience within the industry
when the product was manufactured, objectively
and reasonably could have been anticipated.”

Id. at 315 (quoting Oquendo v. Bettcher Indus., Inc., 939 F.
Supp. 357, 361 (D.N.J. 1996) (quoting Brown v. U.S. Stove Co.,
484 A.2d 1234, 1241 (N.J. 1984))). We then agreed with the
District Court’s conclusion that:

No jury . . . reasonably could conclude that one
accidental explosion 50 years ago, one terrorist
act in this country almost 30 years ago, and

44
 scattered terrorists incidents throughout the world
over the course of the last 30 years would make
an incident like the World Trade Center bombing
anything more than a remote or theoretical
possibility.

Id. at 35 (quoting Port Auth. of N.Y. & N.J. v. Arcadian Corp.,
991 F. Supp. at 402-03).

Arcadian holds that not all misuses that would be
perceived as possible by a reasonable seller are reasonably
foreseeable misuses that can lead to seller liability. Virtually all
misuses are foreseeable as possibilities. Given that the ultimate
objective of the risk-utility analysis is to determine whether a
particular product creates a risk of harm that outweighs its
usefulness, all possible misuses clearly cannot be the basis for
liability on the part of the seller. This does not mean, however,
that misuses which a reasonable seller would believe likely to
occur in the normal course of events need not be taken into
account. Such misuses are “objectively foreseeable” and must
be considered. Here, unlike in Arcadian, there is a genuine
issue of material fact as to whether a reasonable manufacturer
in Novartis’s position would have anticipated that Plaintiffs’
mixing was likely to happen in the normal course of events.17

17
While, as we have noted, a risk-utility analysis ultimately
involves a policy judgment, we, unlike the dissent, do not
understand the concept of “objective or reasonable
foreseeability” under New Jersey law to be devoid of factual
content regarding the perceptions of a reasonable seller and

45
 After determining that the plaintiff used the product in an
objectively foreseeable manner, the next step of the risk-utility
analysis requires the fact-finder to determine whether the
reasonably foreseeable risk of harm posed by the reasonably
foreseeable use of the product could have been reduced or
avoided by a reasonable alternative design. Lewis v. Am.
Cyanamid Co., 715 A.2d 967, 980 (N.J. 1998). In making this
determination, the jury is, of course, called upon to assess what
risks of harm were reasonably foreseeable.

On remand from this Court’s prior decision in this case,
the District Court granted summary judgment to Novartis on
Plaintiffs’ defective design claim because it determined that the
risk of harm to Plaintiffs’ crops posed by AG600 when mixed
with certain fungicides was not foreseeable. It concluded that
it could not “find it practical, feasible, and reasonable, as a
matter of law, to require the Defendant to have tested its product
in combination with every fungicide for use on all plants.”
Indian Brand Farms, No. 99-2118, slip op. at 11 (D.N.J. Oct.
10, 2008). However, while it is correct to say that a
manufacturer in Novartis’s position has no duty to test every
possible combination of ingredients for every possible misuse of

determinable solely on the basis of “fairness and public policy.”
Evidence tending to show common knowledge in a marketplace
regarding a likely misuse is not irrelevant to whether that misuse
is objectively or reasonably foreseeable. Where, as here, there
is such evidence regarding the practice of mixing, we are
unwilling to hold that there is no reasonable foreseeability as a
matter of law.

46
a pesticide, it is not correct to say that a manufacturer is never
chargeable with knowledge of the risks of harm that reasonable
testing would have revealed. The issue boils down to what a
reasonably prudent manufacturer would have done in the way of
testing before introducing the product to the market. See
Restatement (Third) of Torts: Products Liability § 2 cmt. m
(stating that “a seller bears responsibility to perform reasonable
testing prior to marketing a product” and “is charged with
knowledge of what reasonable testing would reveal,” and so
“[i]f testing is not undertaken, or is performed in an inadequate
manner, and this failure results in a defect that causes harm, the
seller is subject to liability,” if there was a reasonable alternative
design;)18 Feldman v. Lederle Labs., 479 A.2d 374, 387 (N.J.
1984) (stating that “a reasonably prudent manufacturer will be
deemed to know of reliable information generally available or
reasonably obtainable in the industry or in the particular field
involved”).

Here, the evidence would permit a finding of fact that a
reasonably prudent manufacturer would have appreciated the
significant risk of crop damage from the use of the ionic
surfactant and that a reasonable alternative with less risk was
available. Plaintiffs produced two experts, Dr. James Witt and

18
New Jersey generally follows the rule of Section 2 of the
Restatement (Third) of Torts: Products Liability. See, e.g.,
Cavanaugh v. Skil Corp., 751 A.2d 518, 520-21 (N.J. 2000);
Myrlak v. Port Auth. of N.Y. & N.J., 723 A.2d 45, 52 (N.J.
1999); Lewis, 715 A.2d at 975, 979, 983; Mathews v. Univ. Loft
Co., 903 A.2d 1120, 1126-27 (N.J. Super. Ct. App. Div. 2006).

47
Dr. Carl Whitcomb, who testified that the presence of the ionic
surfactant in AG600 should have raised a “red flag” that the
pesticide would be physically incompatible with fungicides. See
App. at A764, A885-87. Novartis contends that there is a
distinction between physical compatibility and whether the
mixture would result in plant damage, but Dr. Witt specifically
stated that the incompatibility caused by the ionic surfactant
“can cause . . . crop damage,” id. at A885, and Dr. Whitcomb
specifically stated that “it appears that the incompatibility and in
turn the damage to the blueberry crops resulted from a
compound(s) added to the [AG600] other than the primary
active ingredient.” Id. at A886. In addition, Dr. Pavlis of
Rutgers testified that while physical incompatibility does not
necessarily result in crop damage, “it’s a good indication,”
because “[i]f you get a problem in the jar [testing for
compatibility], then you most likely will get a problem in the
field.” Id. at A367.

In addition, there is evidence that such incompatibility
could have been discovered by conducting a simple bottle-
shaking test (in which a pesticide and fungicide are mixed in a
bottle to test compatibility), id. at A376, A765, and Dr. Witt
testified that there was no need to test every combination of
pesticides and fungicides for stability, only combinations
commonly used in the areas designated for sale. Id. at A764-65.

In contrast, the record contains no expert testimony to
support Novartis’s claim that it would have required testing of
almost 3,000,000 combinations of pesticides and fungicides in
order to determine that there was a significant risk of crop
damage. In addition, there is evidence that Novartis did not

48
conduct any compatibility testing at all before marketing and
distributing AG600. See id. at A748, A753. It was only after
the damage to the blueberry crops was reported that Novartis
tested the pesticide with twenty-five other chemicals and found
that several of the mixes were in fact incompatible. Id. at A895.

The evidence of record raises a genuine issue of material
fact as to whether the risk of harm to Plaintiffs’ crops was
foreseeable, and whether such risk of harm could have been
reduced or avoided by a reasonable alternative design, i.e., a
pesticide not containing an ionic surfactant.19 Accordingly, the
District Court erred when it granted summary judgment to
Novartis on Plaintiffs’ design defect claim.

VI. Conclusion

We will affirm the judgment of the District Court in
Novartis’s favor on Indian Brand Farms’ claims of negligent
misrepresentation/fraud and violation of the NJCFA. We will
also affirm the judgment in Novartis’s favor on Plaintiffs’
negligent misrepresentation/fraud and NJCFA claims to the
extent that they rely on oral representations by Novartis. In all
other respects, the judgment of the District Court will be
reversed, and this case will be remanded for further proceedings
on all of Plaintiffs’ other claims.

19
Plaintiffs posit as a reasonable alternative design “old
Diazinon,” which did not contain the ionic surfactant. Pl. Br. at
50.

49
Indian Brand v. Novartis
No. 08-4484

HARDIMAN, Circuit Judge, dissenting in part.

I am pleased to join Judge Stapleton’s opinion for the
Court in most respects. Unlike my colleagues, however, I would
hold that Novartis had no duty to test AG600 for tank-mixing
compatibility with the fungicides used by Plaintiffs. I therefore
would affirm the District Court’s summary judgment on
Plaintiffs’ design defect claim under the New Jersey Products
Liability Act. And because it follows a fortiori that Novartis
had no duty to warn Plaintiffs about the results of a test it had no
legal duty to conduct, I would affirm the District Court’s
summary judgment on Plaintiffs’ implied failure-to-warn claim
as well. Accordingly, I respectfully dissent from Parts IV and
V of the Court’s opinion.

I.

The extensive factual background and tortuous
procedural history of this case are aptly recounted in Judge
Stapleton’s thorough opinion, so I shall briefly mention only a
few points relevant to my dissent.

Plaintiffs’ fourth amended complaint includes two claims
brought pursuant to the New Jersey Products Liability Act
(NJPLA), N.J. Stat. Ann. § 2A:58C-1 et seq. First, Plaintiffs
allege that AG600 was defectively designed because it
contained an undisclosed ionic surfactant that harmed Plaintiffs’
crops when “tank mixed” with certain fungicides regularly used
by Plaintiffs, such as Captan and Captec. Although Novartis did
not recommend—and in fact warned against—combining
AG600 with fungicides during the application process, Plaintiffs
contend that Novartis had a duty to test AG600 for adverse
interactions with other agricultural chemicals before distributing
it. Second, Plaintiffs aver that AG600 was defective because
Novartis failed to warn of the dangers inherent in tank mixing
the pesticide with Plaintiffs’ fungicides.

In Parts IV and V of its opinion, the Court holds that the
District Court erred in granting Novartis summary judgment on
both of Plaintiffs’ NJPLA claims. Because I believe Plaintiffs’
practice of combining AG600 with various fungicides during the
tank mixing process was not objectively foreseeable to Novartis,
I disagree.

A.

I begin with Plaintiffs’ claim for defective design. Under
the NJPLA, a plaintiff asserting a claim for defective design
must prove by a preponderance of the evidence that “the product
causing the harm was not reasonably fit, suitable or safe for its
intended purpose because it . . . was designed in a defective
manner.” N.J. Stat. Ann. § 2A:58C-2. When a product is used
for something other than its specifically intended purpose, a
plaintiff nonetheless may prevail on a design defect claim under
the NJPLA by demonstrating that such use was “reasonably
foreseeable” to the manufacturer. Jurado v. Western Gear
Works, 619 A.2d 1312, 1317 (N.J. 1993) (citations and
quotation marks omitted). Because it is undisputed that
Novartis designed AG600 as a stand-alone pesticide and did not
recommend applying it in conjunction with fungicides, Plaintiffs

2
bear the burden of demonstrating that their tank mixing practice
was a reasonably foreseeable misuse of the pesticide. Id. at
1317-18.1

To determine whether the misuse of a product was
reasonably foreseeable under the NJPLA, we apply an objective
test. Id. at 1317. We do not ask whether a manufacturer was
aware of previous instances in which its product had been
similarly misused because such evidence “tends to show only
subjective foreseeability,” which is irrelevant to the objective
foreseeability analysis. Port Auth. of New York and New Jersey
v. Arcadian Corp., 189 F.3d 305, 315 (3d Cir. 1999) (quoting
Oquendo v. Bettcher Indus., Inc., 939 F. Supp. 357, 363 (D.N.J.
1996)); see also Brown v. U.S. Stove Co., 484 A.2d 1234, 1241
(N.J. 1984). Instead, whether the misuse of a product is
objectively foreseeable—and thereby imposes a duty on the
manufacturer to take steps to ensure that the product is safe for
that use—is ultimately “a question of fairness and public
policy.” Arcadian, 189 F.3d at 315. For that reason, we have
emphasized that “[f]airness, not foreseeability alone, is the test”
for reasonable foreseeability under the NJPLA. Id. at 316
(quoting Kuzmic v. Ivy Hill Park Apartments, Inc., 688 A.2d
1018, 1020 (N.J. 1997)).

It is in this assessment of the objective foreseeability of
Plaintiffs’ tank mixing of AG600 with fungicides where I part

1
Under the NJPLA, use of a product for anything other
than its intended purpose is termed “misuse.” See Jurado v.
Western Gear Works, 619 A.2d 1312, 1317 (N.J. 1993).

3
ways from my colleagues. The Majority marshals a
considerable amount of evidence to support its conclusion that
tank mixing was a reasonably foreseeable misuse of AG600.
According to the Majority, individual plaintiff farmers, pesticide
dealers, and Rutgers University crop-treatment scientists all
testified that tank mixing pesticides with fungicides was a
common and well-known industry practice among blueberry
farmers. Furthermore, Novartis sales representatives themselves
acknowledged a general awareness that farmers often engage in
tank mixing.

Although such evidence suggests a subjective awareness
on the part of Novartis and others that Plaintiffs would tank mix
AG600 with different fungicides, it sheds no light on the
question of whether this subjectively foreseeable misuse is
objectively reasonable. For a duty to attach under the NJPLA,
the misuse of a product must be objectively foreseeable to the
manufacturer—a determination which, as explained above, turns
on questions of fairness and public policy, not Novartis’s
subjective awareness of past tank mixing by Plaintiffs. See
Jurado, 619 A.2d at 1317; Arcadian, 189 F.3d at 315. Because
the deposition testimony cited by the Majority does not indicate
whether it would be either fair or sound public policy to charge
Novartis with responsibility for ensuring that Plaintiffs’ practice
of tank mixing AG600 with various fungicides was safe, that
evidence would seem irrelevant to the question of whether
Plaintiffs’ misuse of AG600 was objectively foreseeable under
the NJPLA.

Unlike the Majority, I am not convinced that Plaintiffs
have carried their burden of demonstrating that their misuse of

4
AG600 was reasonably foreseeable to Novartis. As the
Majority’s foreseeability analysis demonstrates, Plaintiffs can
point to no relevant evidence in the record that suggests tank
mixing was an objectively foreseeable misuse of AG600.
Instead, Plaintiffs—like the Majority—rely almost entirely on
evidence of subjective foreseeability. Because the burden of
demonstrating reasonable foreseeability rests on Plaintiffs, see
Jurado, 619 A.2d at 1317, I would affirm the District Court’s
conclusion that Novartis had no duty under the NJPLA to test
AG600 for compatibility with various fungicides.

In contrast to Plaintiffs’ failure to introduce relevant
evidence on the issue of reasonable foreseeability, Novartis has
cited persuasive evidence which strongly suggests that it would
be neither fair nor prudent public policy to impose a duty on
Novartis to test AG600 for compatibility with fungicides such
as Captan and Captec. When viewed as a whole, this evidence
compels the conclusion that Plaintiffs’ practice of tank mixing
was not an objectively foreseeable misuse of AG600.

Evidence suggests that the burden such testing would
impose on Novartis would be substantial to say the least. The
AG600 label indicates that the pesticide is approved for use not
just on the blueberries that Plaintiffs raise but on 62 different
types of plants. See App. at 548-574. Novartis has
represented—and Plaintiffs have not disagreed—that there are
approximately 98 different registered fungicides and 141
different registered insecticides that growers of those 62 types
of plants could elect to tank mix with AG600. Appellee’s Br. at
13-14, 27-28. This yields over 850,000 tank-mix/plant
combinations that Novartis would be required to test for

5
compatibility before marketing AG600. 2 Evidence also
indicates that such extensive testing would be time consuming:
a single test conducted by Rutgers University scientists
involving AG600, Captan, Captec, and blueberry plants took
two full years to complete. See App. at 614-620.3

The Majority points to the deposition testimony of Dr.
James Witt, who testified that Novartis need not test AG600 for
every possible tank-mix combination. Instead, Dr. Witt opined
that Novartis could have looked to “what some of the common
and usual practices are, and the areas where [AG 600] is going

2
Novartis cites a higher figure, claiming that the
Majority’s holding will require it to test “at least 2,963,220
different three-product use combinations” before distributing
AG600. See Appellee’s Br. at 27. Novartis’s calculation seems
to assume erroneously that farmers will combine AG600 with
multiple fungicides and multiple insecticides at the same time.
The record, however, indicates only that farmers will combine
AG600 with, at most, one fungicide and one insecticide during
any given application. Accordingly, I use the smaller figure of
850,000 as a more accurate reflection of the testing burden
facing Novartis.
3
The Majority notes that Plaintiffs introduced evidence
suggesting that Novartis could detect potential compatibility
problems with a simple “jar test” of AG600 and a given
fungicide. Accepting this as true, I believe it would be an
unreasonable burden to require a manufacturer such as Novartis
to perform over 850,000 separate jar tests.

6
to be sold and used” and limited its testing accordingly. App. at
764-765. According to the Majority, Dr. Witt’s testimony
suggests the testing burden is not nearly as onerous as Novartis
claims.

With additional information, Dr. Witt’s testimony could
be a helpful means of evaluating the testing burden that the
Majority’s holding imposes on Novartis. Despite their burden
of demonstrating the objective foreseeability of tank mixing,
however, Plaintiffs have cited no additional evidence indicating
where AG600 is commonly used and sold and no evidence
suggesting what the “common and usual practices” of farmers
who use AG600 actually are. Without such information, Dr.
Witt’s testimony provides us with no basis for concluding that
the Majority’s holding will require Novartis to test anything less
than the approximately 850,000 potential tank-mix combinations
discussed above. The notion that far fewer tests would be
required is based, I believe, on the fallacy that the manufacturer
knows in advance which of the many potential
AG600/insecticide/fungicide/crop combinations the end user
will choose.

In my view, the considerable burden that the Majority’s
holding will impose on manufacturers is unsound public policy.
Requiring Novartis to test AG600—and, apparently, all other
pesticides—in innumerable tank mixing combinations would
stifle the development of agricultural pesticides and increase
substantially their cost of production. This would, in turn, drive
up the cost of food, since pesticide manufacturers and farmers
would inevitably pass on at least a portion of their escalating
costs to consumers. As a matter of policy, then, it seems both

7
logical and prudent to lay the responsibility for ensuring tank-
mixing compatibility on end users such as Plaintiffs, who have
actual knowledge of the specific types of fungicides that they
wish to combine with AG600 and the various crops they wish to
treat with the mixture.

Nor would requiring Novartis to test AG600 for tank mix
compatibility be particularly fair, either. Because the
Environmental Protection Agency has not approved AG600 for
mixing with fungicides such as Captan and Captec, any such
mixture would be considered an “off-label” use of the pesticide.
Federal law prohibits Novartis from recommending or
marketing AG600 for off-label uses. See 7 U.S.C. §
136j(a)(1)(B). Furthermore, Novartis explicitly cautions farmers
against mixing AG600 with other chemical substances. See
App. at 545. Accordingly, the Majority’s holding will require
Novartis to undertake extensive and expensive testing to ensure
that AG600 is fit to be used in a manner that it warns against
and is explicitly prohibited from advocating.

In sum, the record evidence suggests that requiring
Novartis to test AG600 for tank mix compatibility with
fungicides such as Captan and Captec is both unfair and
unsound as a matter of public policy. Accordingly, I would
conclude that Plaintiff’s misuse of AG600 in the tank mixing
process was not objectively foreseeable to Novartis, despite
Plaintiffs’ evidence suggesting that the company was
subjectively aware of the practice. Because Novartis had no
duty to test AG600 for compatibility with the fungicides
employed by Plaintiffs, I would affirm the District Court’s

8
summary judgment on Plaintiffs’ defective design claim under
the NJPLA.

B.

The District Court also granted summary judgment on
Plaintiffs’ failure-to-warn claim brought pursuant to the NJPLA
after concluding that the claim was preempted. In Part IV of its
thorough opinion, the Majority persuasively explains why this
holding was error, and I agree fully with its preemption analysis.

Notwithstanding the District Court’s flawed preemption
reasoning, I do not believe it necessary to reverse the District
Court’s dismissal of Plaintiffs’ failure-to-warn claim. For the
reasons explained herein, I would hold that Novartis had no duty
to test AG600 for tank mix compatibility with the fungicides
used by Plaintiffs. It follows a fortiori that Novartis had no duty
to warn Plaintiffs. Accordingly, I would affirm the District
Court’s summary judgment on Plaintiffs’ implied failure-to-
warn claim as well.

9