Sleath v. West Mont Home Health Services, Inc.

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No. 99-185

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 381

304 Mont. 1

16 P. 3d 1042

LIBBY SLEATH, MARY ANN HAYES,

GLENDA TRUESDELL, and MARY OWEN,

Plaintiffs/Appellants,

v.

WEST MONT HOME HEALTH SERVICES,

INC., WEST MONT HOME MANAGEMENT

SERVICES, INC., ORKIN EXTERMINATION

COMPANY, INC., and EP CO., INC., and

ROFAN SERVICES, INC., d/b/a DOWELANCO,

Defendants/Respondents.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Jeffrey M. Sherlock, Judge presiding.

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COUNSEL OF RECORD:

For Appellants:

Peter Michael Meloy, Meloy & Morrison, Helena, Montana; Tom Scheuneman, Corona
Del Mar, California

For Respondent DowElanco:

Ronald F. Waterman, Gough, Shanahan, Johnson & Waterman, Helena, Montana; Andrew
J. Detherage, Charles P. Edwards, Barnes & Thornburg, Indianapolis, Indiana

Heard: January 11, 2000

Submitted: February 15, 2000

Decided: December 28, 2000

Filed:

__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1 Appellants Libby Sleath, Mary Ann Hayes, Glenda Truesdell, and Mary Owen brought
this personal injury action against Respondents West Mont Home Health Services, Inc.
and West Mont Home Management Services, Inc. (collectively referred to as "West
Mont"); Orkin Extermination Company, Inc. (Orkin); and Ep Co., Inc. and Rofan
Services, Inc. d/b/a DowElanco (collectively referred to as "DowElanco"), for injuries
Appellants allegedly suffered when Orkin applied a pesticide manufactured by
DowElanco at the West Mont building where plaintiffs worked. The District Court for the
First Judicial District, Lewis and Clark County, granted summary judgment in favor of
DowElanco on the basis that Appellants' claims are preempted by the Federal Insecticide,
Fungicide and Rodenticide Act (FIFRA). We reverse and remand for further proceedings

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consistent with this opinion.

¶2 Appellants present the following issues for review:

¶3 1. Whether Appellants' failure to warn claims, pleaded in negligence, strict liability,
and breach of express warranty, are preempted by FIFRA because they are based upon or
implicate the pesticide's labels.

¶4 2. Whether the failure to warn claims in Appellants' negligence and strict liability
theories of liability are preempted by FIFRA when Appellants were not purchasers or
users of the pesticide and were, instead, unwitting bystanders who never saw the
pesticide's labels and who suffered injury from the use of the pesticide by others.

¶5 3. Whether Appellats' strict liability for design defect theory of liability is preempted by
FIFRA.

¶6 Because we conclude that Issue 1 is dispositive, we do not address Issues 2 and 3.

Factual and Procedural Background

¶7 Appellants worked in a building in Helena owned by their employer, West Mont.
Sometime in 1991, West Mont ordered that all windows in the building be closed and that
the operating cranks for the windows be removed, thereby preventing fresh air ventilation
of the building. Between 1991 and 1994, Orkin applied various pesticides, collectively
referred to here as Dursban, to the interior of the West Mont building every three to six
weeks without prior or subsequent warnings to Appellants. These pesticides were
manufactured and sold by DowElanco.

¶8 Each of the Appellants began suffering from various physical ailments and were forced
to leave their employment on advice of their physicians. Appellant Hayes worked in the
West Mont building until June 28, 1993; Appellant Owen worked until July 12, 1993;
Appellant Truesdell worked until August 24, 1993; and Appellant Sleath worked until
May 1994. Appellants first learned that they were routinely exposed to Dursban in 1995
when they requested information from West Mont about the pesticide applications. Prior
to 1995, Appellants were unaware that they had been exposed to Dursban.

¶9 Dursban is DowElanco's registered trademark for a group of insecticides developed,
manufactured, and marketed by DowElanco. The active ingredient in each of the Dursban
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products is a synthetic chemical compound known as chlorpyrifos which is one of a group
of compounds known as organophosphates. Organophosphates are synthetic chemical
relatives of the nerve gases used in World Wars I and II. They are central and peripheral
nervous system poisons that inhibit the action of the enzyme acetylcholinesterase.

¶10 Depending on exposure frequency and dosage levels, the toxicity to the central and
peripheral nervous systems can cause symptoms such as headaches, dizziness, flu-like
malaise, urinary frequency, confusion and difficulties with memory and concentration.
Each of the Appellants exhibits one or more of these symptoms, all of which are
toxicologically consistent with excessive exposure to chlorpyrifos as contained in Dursban.

¶11 Dursban's labels are registered in accordance with FIFRA and its implementing
regulations. Each of the Dursban labels relevant to this case contains the following
statement:

DowElanco warrants that this product conforms to the chemical description on the
label and is reasonably fit for the purposes stated on the label when used in strict
accordance with the directions, subject to the inherent risks set forth below.

¶12 DowElanco markets and sells its Dursban products only to professional applicators,
distributors, and formulators. It does not market or sell Dursban products to the general
public. In fact, Dursban's labels require that it be applied by, or under the direction of,
commercial applicators.

¶13 On January 5, 1996, Appellants filed a complaint against West Mont, Orkin, and
DowElanco. Thereafter, on October 9, 1996, Appellants, with leave of the District Court,
filed their Second Amended Complaint wherein they alleged that West Mont was
negligent for failing to ensure that the building in which Appellants were working was free
from hazardous chemicals and for failing to warn Appellants and other employees about
the possible health risks of the pesticides applied in the building. Appellants also alleged
that Orkin negligently and carelessly failed to give warning or otherwise take steps to
ensure that Appellants and others would not be exposed to the pesticide's adverse effects.

¶14 As to DowElanco, the complaint alleged negligent design and manufacture of
Dursban, strict products liability for the design and manufacture of Dursban, and breach of
express and implied warranties. Moreover, the negligence and strict liability theories
contained allegations that DowElanco failed to provide adequate warnings about the

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dangers of Dursban.

¶15 During the course of discovery, DowElanco served each Appellant with an identical
set of 15 interrogatories. Appellants' answers to these interrogatories were nearly identical.
And, in response to many of these interrogatories, Appellants referred to Dursban's labels.

¶16 On February 24, 1998, DowElanco moved for summary judgment on the basis that all
of Appellants' claims are preempted by FIFRA because Appellants' complaint and
interrogatory answers show that Appellants' theories of liability are all based solely upon
inclusions in or omissions from Dursban's labels. The specific provision in FIFRA to
which DowElanco refers is 7 U.S.C. § 136v(b), which provides:

(b) Uniformity

Such State shall not impose or continue in effect any requirements for labeling or
packaging in addition to or different from those required under this subchapter.

¶17 Appellants responded to DowElanco's motion for summary judgment by redacting
their interrogatory answers to exclude specific references to Dursban's labels. Appellants
also submitted a supplemental affidavit from Robert K. Smith, Ph.D., one of Appellants'
proposed expert witnesses, setting forth his opinion that Dursban is defective and
unreasonably dangerous "in the context of interior workplace application of those
products."

¶18 DowElanco moved to strike this supplemental affidavit, but the District Court denied
the motion. The court determined, however, that even considering the supplemental
affidavit and excluding references to Dursban's labels in Appellants' interrogatory
answers, all of Appellants' claims are based on Dursban's labels. Hence, the District Court
concluded that pursuant to this Court's opinion in McAlpine v. Rhone-Poulenc Ag. Co.
(1997), 285 Mont. 224, 947 P.2d 474, all of Appellants' claims against DowElanco are
preempted by FIFRA. Accordingly, the District Court granted summary judgment in favor
of DowElanco.

Standard of Review

¶19 Our standard of review in appeals from summary judgment rulings is de novo. Oliver
v. Stimson Lumber Co., 1999 MT 328, ¶ 21, 297 Mont. 336, ¶ 21, 993 P.2d 11, ¶ 21(citing

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Motarie v. N. Mont. Joint Refuse Disposal (1995), 274 Mont. 239, 242, 907 P.2d 154, 156;
Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785). When we review a
district court's grant of summary judgment, we apply the same evaluation as the district
court based on Rule 56, M.R.Civ.P. Oliver, ¶ 21 (citing Bruner v. Yellowstone County
(1995), 272 Mont. 261, 264, 900 P.2d 901, 903). We set forth our inquiry in Bruner as
follows:

The movant must demonstrate that no genuine issues of material fact exist. Once
this has been accomplished, the burden then shifts to the non-moving party to prove,
by more than mere denial and speculation, that a genuine issue does exist. Having
determined that genuine issues of fact do not exist, the court must then determine
whether the moving party is entitled to judgment as a matter of law. We review the
legal determinations made by a district court as to whether the court erred.

Oliver, ¶ 21 (quoting Bruner, 272 Mont. at 264-65, 900 P.2d at 903).

¶20 Moreover, in a summary judgment proceeding, the evidence must be viewed in the
light most favorable to the nonmoving party, and all reasonable inferences will be drawn
therefrom in favor of the party opposing summary judgment. Oliver, ¶ 22 (citing Joyce v.
Garnaas, 1999 MT 170, ¶ 8, 295 Mont. 198, ¶ 8, 983 P.2d 369, ¶ 8). Consequently, we
will view the evidence in the light most favorable to the Appellants and all reasonable
inferences will be drawn in their favor.

Issue 1.

¶21 Whether Appellants' failure to warn claims, pleaded in negligence, strict liability, and
breach of express warranty, are preempted by FIFRA because they are based upon or
implicate the pesticide's labels.

¶22 The United States Constitution provides that "[t]his Constitution, and the Laws of the
United States which shall be made in Pursuance thereof . . . shall be the supreme Law of
the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding." U.S. Const. art. VI, cl. 2. "It is basic to this constitutional command that
all conflicting state provisions be without effect." Maryland v. Louisiana (1981), 451 U.S.
725, 746, 101 S.Ct. 2114, 2128-29, 68 L.Ed.2d 576 (citing McCulloch v. Maryland
(1819), 17 U.S. 316, 427, 4 Wheat. 316, 4 L.Ed. 579; Hines v. Davidowitz (1941), 312 U.
S. 52, 61 S.Ct. 399, 85 L.Ed. 581).

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¶23 This preemptive power is not to be found carelessly, however.

[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. In
all pre-emption cases, and particularly in those in which Congress has
"legislated . . . in a field which the States have traditionally occupied," . . . we "start
with the assumption that the historic police powers of the States were not to be
superseded by the Federal Act unless that was the clear and manifest purpose of
Congress."

Medtronic, Inc. v. Lohr (1996), 518 U.S. 470, 485, 116 S.Ct. 2240, 2250, 135 L.Ed.2d 700
(quoting Rice v. Santa Fe Elevator Corp. (1947), 331 U.S. 218, 230, 67 S.Ct. 1146, 1152,
91 L.Ed. 1447). See also Cipollone v. Liggett Group, Inc. (1992), 505 U.S. 504, 516, 112 S.
Ct. 2608, 2617, 120 L.Ed.2d 407. Thus, the purpose of Congress "is the ultimate
touchstone" in every preemption case. Medtronic, 518 U.S. at 485, 116 S.Ct. at 2250
(quoting Retail Clerks v. Schermerhorn (1963), 375 U.S. 96, 103, 84 S.Ct. 219, 223, 11 L.
Ed.2d 179).

¶24 Congress's intent may be "explicitly stated in the statute's language or implicitly
contained in its structure and purpose." Cipollone, 505 U.S. at 516, 112 S.Ct. at 2617
(quoting Jones v. Rath Packing Co. (1977), 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.
Ed.2d 604). Furthermore,

[i]n the absence of an express congressional command, state law is pre-empted if
that law actually conflicts with federal law, or if federal law so thoroughly occupies
a legislative field as to make reasonable the inference that Congress left no room for
the States to supplement it.

Cipollone, 505 U.S. at 516, 112 S.Ct. at 2617 (internal quotations and citations omitted).

¶25 FIFRA was first enacted by Congress in 1947 to regulate pesticides. The 1947 Act
required pesticide manufacturers to register pesticides with the Secretary of Agriculture, to
display poison warnings on the labels of highly toxic pesticides, and to include other
warning statements to prevent injury to people, animals and plants. In 1949, the Secretary
of Agriculture, under the authority of FIFRA, issued substantial pesticide labeling
requirements. In 1970, the authority for pesticide regulation was transferred to the newly
created Environmental Protection Agency (EPA), which now administers the pesticide

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labeling requirements imposed by the Department of Agriculture.

¶26 In 1972, Congress enacted sweeping amendments to FIFRA, largely in response to
public concerns over the health risks of the pesticide DDT. The 1972 amendments
established that the primary purpose of federal pesticide regulation is the protection of
human health and the environment from the risks posed by pesticides. While FIFRA had
previously regulated pesticides primarily through labeling requirements, the 1972
amendments established federal regulation of pesticide use, an area previously regulated
exclusively by the states.

¶27 The 1972 amendments established a program of federal-state cooperation in
regulating pesticides. Under this program, the EPA registers pesticides for a particular use
and approves pesticide labels. In doing so, FIFRA requires that the EPA must determine
whether the pesticide's composition is such as to warrant the proposed claims for it;
whether the labeling and other materials comply with FIFRA; whether the pesticide will
perform its intended function without unreasonable adverse effects on the environment;
and whether the pesticide will have unreasonable adverse effects on the environment when
used in accordance with widespread and commonly recognized practices. Pursuant to a
1978 amendment, the EPA does not evaluate pesticide label claims regarding efficacy or
otherwise regulate efficacy in approving pesticide labels.

¶28 States retain broad authority to regulate the sale and use of pesticides. Under 7 U.S.C.
§ 136v(a), states may regulate pesticide sales or use more strictly than the federal
government. Under 7 U.S.C. § 136v(c) and its accompanying regulations, states may
register pesticides for local uses in addition to those approved by the EPA and may impose
supplemental labeling requirements regarding those additional uses.

¶29 The term "label" means "the written, printed, or graphic matter on, or attached to, the
pesticide . . . or any of its containers or wrappers." 7 U.S.C. § 136(p)(1). The term
"labeling" means "all labels and all other written, printed, or graphic matter--(A)
accompanying the pesticide . . . at any time; or (B) to which reference is made on the label
or in literature accompanying the pesticide. . . ." 7 U.S.C. § 136(p)(2). The EPA has
specific regulations concerning content, placement, type size, and prominence of warnings
and precautionary statements on a label. See 40 C.F.R. § 156.10. The final form of the
printed labeling for a pesticide must be submitted to and accepted by the EPA before
registration. 40 C.F.R. § 156.10(a)(6). Once the EPA approves a label, the manufacturer
may not change it without the EPA's approval. Worm v. American Cyanamid Co. (4th Cir.

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1993), 5 F.3d 744, 747.

¶30 In the case sub judice, Appellants ask this Court to revisit its decision in McAlpine v.
Rhone-Poulenc Ag. Co. (1997), 285 Mont. 224, 947 P.2d 474, insofar as it holds that state
law claims based on a failure to warn are preempted by FIFRA to the extent that they
expressly or implicitly challenge the adequacy of the warnings in a pesticide's label.
Appellants maintain that this Court reached its conclusion in McAlpine by following the
decisions holding that the preemption language of FIFRA should be given the same effect
as the statute governing cigarette advertising that the United States Supreme Court
construed in Cipollone v. Liggett Group, Inc. (1992), 505 U.S. 504, 112 S.Ct. 2608, 120 L.
Ed.2d 407.

¶31 Appellants present three reasons why we should revisit our decision in McAlpine.
First, Appellants argue that a plain reading of the parties' briefs in McAlpine confirms that
all parties to that appeal simply assumed that Cipollone was controlling on the question of
FIFRA's preemption language and never examined the validity of that proposition.

¶32 Second, Appellants point out that none of the parties' briefs in McAlpine mentioned
Medtronic, Inc. v. Lohr (1996), 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700, wherein
the Supreme Court stated that the preemption language of the Medical Device
Amendments of 1976 (the MDA), which is similar to FIFRA's preemption section, does
not preempt state law failure to warn claims regarding medical devices even though they
are properly labeled pursuant to the MDA. Medtronic, 518 U.S. at 501-02, 116 S.Ct. at
2258. Appellants argue that Medtronic demonstrates that when a federal regulatory statute
consistently uses the term "requirement" to mean positive legislative or administrative
enactments, and there is no indication in the statute's legislative history that Congress
intended to preempt state common law, the term "requirements" does not include common
law damage actions.

¶33 Third, Appellants point out that the United States Department of Justice, representing
the EPA, filed an amicus curiae brief in Etcheverry v. Tri-Ag Service, Inc. (Cal. 2000),
993 P.2d 366, articulating the Government's position that FIFRA does not preempt any
state law theories of liability, including failure to warn claims that implicate pesticide
labels. Appellants argue that the EPA's view of the scope of FIFRA's preemptive effect is
entitled to substantial weight because the EPA is charged by Congress with overseeing the
primary enforcement responsibility of the states under FIFRA, and thus the EPA is
uniquely qualified to determine whether a particular form of state law should be

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preempted. Appellants also argue that the EPA's brief is a record of the California
Supreme Court within the meaning of Rule 202(b)(6), M.R.Evid., and that this Court may
take judicial notice of it pursuant to Rules 202(d)(2) and (f)(2), M.R.Evid.

¶34 DowElanco argues on the other hand, that Congress expressly stated its intent to
preempt state law under FIFRA when it amended § 136v(b) in 1972 to read:

[A] State shall not impose or continue in effect any requirements for labeling or
packaging in addition to or different from those required under this Act.

In addition, DowElanco maintains that Appellants' argument that this Court was
inadequately advised when it decided McAlpine has been waived by Appellants' failure to
raise the argument in the District Court and that, even so, Appellants' argument is without
merit. DowElanco argues that the United States Supreme Court's decision in Medtronic,
wherein the Supreme Court construed a different statute, does not alter preemption
analysis under FIFRA. Moreover, DowElanco argues that even though Medtronic was
decided nearly two years before Appellants filed their response to DowElanco's motion for
summary judgment, Appellants did not make any argument to the District Court based on
Medtronic or even cite to Medtronic in their response to DowElanco's motion for
summary judgment. Hence, DowElanco contends that Appellants waived their Medtronic
argument.

¶35 DowElanco correctly points out that this Court has repeatedly held that we will not
address either an issue raised for the first time on appeal or a party's change in legal
theory. Unified Industries, Inc. v. Easley, 1998 MT 145, ¶ 15, 289 Mont. 255, ¶ 15, 961
P.2d 100, ¶ 15. However, this Court has never applied this rule to cases. Indeed, we have
decided issues based on cases neither side cited. See DeTienne Associates v. Montana Rail
Link, (1993), 261 Mont. 238, 241, 862 P.2d 1106, 1107-08. Medtronic does not raise an
issue for the first time on appeal or raise a new theory of liability. It simply represents
further legal support for the preemption issue. "In our de novo review of a district court
ruling on summary judgment, we are not bound by the legal authority presented in the
district court." Thomas v. Northwestern Nat. Ins. Co., 1998 MT 343, ¶ 22, 292 Mont. 357,
¶ 22, 973 P.2d 804, ¶ 22.

¶36 DowElanco also objects to Appellants' contention that this Court should consider and
give deference to the EPA's brief in Etcheverry. DowElanco maintains that courts do not
give deference to an agency's statutory interpretation which is contrary to the plain

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language of a statute, as determined by the courts. DowElanco argues that Appellants have
put the cart before the horse because the initial question is whether Congressional intent
can be ascertained by the language of the statute and traditional tools of statutory
interpretation. Moreover, DowElanco argues that the rule of deference to agency statutory
interpretations does not apply to an agency's litigation position.

¶37 In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), 467 U.S.
837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694, the United States Supreme Court stated:
"We have long recognized that considerable weight should be accorded to an executive
department's construction of a statutory scheme it is entrusted to administer . . . ." In this
case, because the EPA is the agency charged with administering FIFRA, we agree with
Appellants that we should consider the EPA's brief in Etcheverry and that the EPA's
interpretation of FIFRA should receive deference.

¶38 Moreover, the EPA was not a party in any of the previous actions regarding FIFRA
and had not previously expressed an opinion in court on whether FIFRA preempts state-
law damages actions. As a result, we did not have the benefit of the EPA's position on
FIFRA preemption when we decided McAlpine. Nor did we have the benefit of the United
States Supreme Court's decision in Medtronic. Consequently, we take this opportunity to
revisit our decision in McAlpine insofar as it holds that state law claims based on a failure
to warn are preempted by FIFRA.

¶39 In McAlpine, several farmers brought a products liability action against the
manufacturer and distributor of a herbicide alleging that they suffered damage as a result
of defendants' failure to warn them that the herbicide could damage their crops if applied
in cool weather. We held in McAlpine, that because the plaintiffs' negligence claim was
based solely on the insufficiencies in the product's warning label, that claim was
preempted by FIFRA. McAlpine, 285 Mont. at 231-32, 947 P.2d at 478. We also held that
FIFRA did not preempt plaintiffs' breach of warranty and strict liability claims to the
extent that those claims did not rely on representations made on the product's label.
McAlpine, 285 Mont. at 232-33, 947 P.2d at 478-79.

¶40 We predicated our decision in McAlpine on the United States Supreme Court's
decision in Cipollone wherein the Supreme Court interpreted a portion of the Public
Health Cigarette Smoking Act of 1969 that provided:

(b) No requirement or prohibition based on smoking and health shall be imposed

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under State law with respect to the advertising or promotion of any cigarettes the
packages of which are labeled in conformity with the provisions of this Act.

Cipollone, 505 U.S. at 515, 112 S.Ct. at 2617 (quoting 15 U.S.C. § 1334(b)).

¶41 The plaintiff in Cipollone claimed that the defendant tobacco company caused his
mother's death by failing to provide adequate warnings on its cigarettes and by
misrepresenting the dangers of smoking to the public. Cipollone, 505 U.S. at 508, 112 S.
Ct. at 2613. The Supreme Court determined in Cipollone that:

The phrase "[n]o requirement or prohibition" sweeps broadly and suggests no
distinction between positive enactments and common law: to the contrary, those
words easily encompass obligations that take the form of common-law rules.

Cipollone, 505 U.S. at 521, 112 S.Ct. at 2620. On that basis, the Supreme Court held that
state law failure to warn claims are preempted insofar as they require a showing that a
defendant's cigarette advertising "should have included additional, or more clearly stated,
warnings." Cipollone, 505 U.S. at 524, 112 S.Ct. at 2621.

¶42 In our discussion of Cipollone in McAlpine, we noted that

[a]ll of the circuit courts, and several state supreme courts, that have considered the
effect of FIFRA's preemption clause have concluded that it should be given the
same effect as the preemption clause interpreted in Cipollone. . . . Thus, for
purposes of determining the scope of FIFRA preemption, Cipollone provides the
appropriate framework for our analysis.

McAlpine, 285 Mont. at 229-30, 947 P.2d at 477 (citations omitted). Hence, we
determined in McAlpine that, as in the cigarette labeling statute at issue in Cipollone, the
phrase "requirement" in § 136v(b) of FIFRA includes state common law damage actions.
McAlpine, 285 Mont. at 230, 947 P. 2d at 477. Consequently, we concluded that FIFRA
preempts state tort claims to the extent that they arise from an omission or inclusion in a
product's label, but that claims alleging a product, manufacturing, or design defect;
claims alleging negligent design, testing, or manufacturing; or claims alleging breach of
warranty that do not rely on such an omission or inclusion in the product's label, are not
preempted. McAlpine, 285 Mont. at 230, 947 P.2d at 477.

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¶43 However, as pointed out by Appellants in their brief on appeal and as we noted earlier
in this opinion, we did not have the benefit of the Supreme Court's decision in Medtronic
in making our determination in McAlpine. The Supreme Court held in Medtronic that in
spite of its earlier decision in Cipollone, the preemption provision at issue in Medtronic
did not preempt state common law damage actions.

¶44 In Medtronic, a pacemaker recipient's pacemaker failed resulting in a "complete heart
block" that required her to undergo emergency surgery. According to her physician, the
likely cause of the failure was a defect in the lead that transmits the heartbeat-steadying
electrical signal from the "pulse generator" to the heart itself. The pacemaker recipient
brought an action against the pacemaker manufacturer asserting claims of negligence and
strict liability. Medtronic, 518 U.S. at 480-81, 116 S.Ct. at 2248.

¶45 The preemption statute at issue in Medtronic provided:

State and local requirements respecting devices

(a) General rule

Except as provided in subsection (b) of this section, no State or political subdivision
of a State may establish or continue in effect with respect to a device intended for
human use any requirement--

(1) which is different from, or in addition to, any requirement applicable under this
chapter to the device, and

(2) which relates to the safety or effectiveness of the device or to any other matter
included in a requirement applicable to the device under this chapter.

Medtronic, 518 U.S. at 481-82, 116 S.Ct. at 2248-49 (quoting 21 U.S.C. § 360k(a)).

¶46 A four-Justice plurality held in Medtronic that distinct features of the MDA mandated
the conclusion that Congress intended only to preempt states from imposing positive law
"requirements" on medical devices in the form of regulations or laws and did not intend to
preempt common law damage actions. Medtronic, 518 U.S. at 488-89, 116 S.Ct. at 2252.
The Medtronic plurality found five key differences in the statutory schemes of the 1969
Cigarette Act and the MDA that mandated the conclusion that Congress did not intend the
word "requirements" to mean the same thing in both statutes.
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¶47 First, the preemption of state authority resulting from the 1969 Cigarette Act
prevented only "a limited set of state requirements"--requirements imposed on advertising
regarding the health effects of cigarettes, while preemption of common law actions as a
result of the MDA would extinguish all state law design defect claims regarding all
medical devices. Second, the MDA provided no private damages action that would replace
state common law actions. Third, the MDA's preemption provision, unlike the 1969
Cigarette Act's, expressed congressional concern "with the problem of specific, conflicting
state statutes and regulations rather than the general duties enforced by common-law
actions." Fourth, unlike the 1969 Cigarette Act, the MDA uses the word "requirements" in
numerous provisions, and each use clearly refers only to statutory and regulatory law, not
common law. Fifth, the legislative history of the MDA reveals no reference in the
hearings, committee reports, or debates that suggests a congressional intent to preempt all
common-law remedies. Medtronic, 518 U.S. at 487-91, 116 S.Ct. at 2251-53.

¶48 In the same way, while the term "requirements" may encompass common law duties
in some contexts, the text, legislative history, and purposes of FIFRA demonstrate that
Congress had no intent that the use of the term "requirements" in § 136v(b) would
extinguish state common law damage actions. As the EPA noted in its amicus brief in
Etcheverry:

When § 136v(b) was enacted in 1972, state law actions against pesticide
manufacturers for failure to warn were a commonplace and uncontroversial feature
of the legal landscape. No evidence from the text or legislative history of FIFRA
suggests that Congress had any intent to extinguish those actions or that Congress
even considered doing so. Indeed, Congress amended FIFRA in 1972 out of
increasing concern for the human health and the environmental effects of pesticides
such as DDT. Given that FIFRA establishes no private damages remedy for those
injured by pesticides, it would be astonishing that, without any discussion, Congress
could have intended to deprive injured persons of all means of relief.

¶49 FIFRA's text demonstrates that Congress had no intent to extinguish damages
remedies under state common law. For example, in § 136v, Congress used the term
"requirements" to mean "regulation," a term connoting positive commands of law, not
court orders to pay damages for the harms caused by pesticides. Section 136v(a) provides
that "[a] State may regulate" the sales or use of pesticides as long as the state "regulation"
does not permit a sale or use prohibited by FIFRA. Section 136v(b) forbids "[s]uch state"

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from regulating labeling by imposing labeling "requirements" in addition to or different
from those required under FIFRA. The plainest reading of the two subsections is that a
state may "regulate" pesticide sales or use, but in doing so may not impose labeling
"requirements." In other words, § 136v(b)'s prohibition on state labeling "requirements"
represents an exception to § 136v(a)'s general grant of state authority to "regulate"
pesticide sales and use.

¶50 The Medtronic plurality interpreted the term "requirements" in the MDA's preemption
provision by examining its usages throughout the MDA. In doing so, the plurality adhered
to "the normal rule of statutory construction that identical words used in different parts of
the same act are intended to have the same meaning." Sullivan v. Stroop (1990), 496 U.S.
478, 484, 110 S.Ct. 2499, 2504, 110 L.Ed.2d 438 (internal quotations and citations
omitted).

¶51 The term "requirements" appears in FIFRA 75 times. No court considering
preemption under FIFRA ever addressed the meaning of "requirements" in the entire
context of FIFRA; courts only looked at it in terms of § 136v(b). However, in each
instance other than § 136v(b), Congress intended the term "requirements" to mean
enactments of positive law by legislative or administrative bodies. It is inconceivable that
Congress intended that § 136v(b) would be the only section of FIFRA in which the term
"requirements" includes the application of general rules of common law by judges and
juries.

¶52 Throughout FIFRA, the term "requirements" refers exclusively to positive enactments
of statutory and regulatory law. Accordingly, the term "requirements" should be given the
same reading in § 136v(b). Simply because the term "requirement" was found in Cipollone
to encompass common law actions for damage, does not preclude this Court from reaching
a contrary result in this case. "Only mischief can result if [the same words appearing in
different statutes] are given one meaning regardless of the statutory context." Lee v.
Madigan (1959), 358 U.S. 228, 231, 79 S.Ct. 276, 278, 3 L.Ed.2d 260.

¶53 Moreover, subsections (a) and (c) of § 136v demonstrate that Congress intended to
authorize states to take actions that may indirectly prompt pesticide manufacturers to
change their labels. Indirect pressure on pesticide manufacturers to change their labels,
which may result from liability in damage actions, cannot be characterized as labeling
"requirements." A state court award of damages for failure to warn does not mandate any
change in labeling. Rather, it merely requires that a pesticide manufacturer pay money to

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an injured person. While a damage award may prompt a pesticide manufacturer to seek the
EPA's approval for a change in labeling, it does not directly command such a change. As
the EPA points out, such indirect pressure cannot reasonably be characterized as imposing
labeling requirements.

¶54 Indeed, indirect pressure to change a pesticide label does not frustrate Congress's
purpose of establishing nationally uniform pesticide labels. The EPA approves only one
label per pesticide. In approving a labeling change, the EPA substitutes a new nationally
uniform label. This process is the same whether the labeling change is prompted by state
damage liability or state regulation authorized by FIFRA.

¶55 In addition, FIFRA's legislative history does not demonstrate a Congressional intent to
extinguish actions for damages. As the EPA noted in its amicus brief, when § 136v(b) was
enacted, common law actions against pesticide manufacturers for failure to warn were a
"well-recognized and uncontroversial feature of the legal landscape." Common law actions
for inadequate, misleading, or false representations regarding pesticides were available as
early as 1884. And, in the first part of this century, dozens of reported decisions
recognized the availability of actions for false or inadequate representations regarding
pesticides, including actions based on pesticide labels. After FIFRA was enacted in 1947,
the federal government issued substantial labeling regulations, but state and federal courts
uniformly concluded that the federal pesticide labeling regulations did not alter the
availability of state law damage actions for inadequate labeling. By 1972, when § 136v(b)
was enacted, nearly every state and federal jurisdiction recognized pesticide manufacturer
and dealer liability both for personal injuries and crop damage resulting from the failure to
provide adequate warnings.

¶56 FIFRA's legislative history reveals no intent to alter the availability of common law
remedies. In 1971 and 1972, three House and Senate committees devoted 25 days to
hearings on proposed pesticide legislation. In the thousands of pages of transcripts of the
hearings and floor debates, there is no suggestion that the 1972 amendments to FIFRA
would preempt state tort law.

¶57 For instance, in the committee hearings, testifying on behalf of the Administration and
the EPA, which drafted the bill that formed the basis of the 1972 amendments, the EPA's
General Counsel, John Quarles, testified as follows:

I would like to emphasize that the States have played a major and continuing role in

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pesticides regulation . . . . We wish to encourage and not supplant these efforts by
providing that States may prohibit the use of a particular pesticide within their
jurisdiction even if the pesticide is registered under the Federal authority. States thus
are not precluded from imposing stricter standards or added requirements, but they
may not permit any sale or use of a pesticide which is prohibited under the authority
of the Act.

The EPA's brief in Etcheverry at 24-25 (quoting the Federal Pesticide Control Act of
1971: Hearings Before the House Committee on Agriculture, 92d Congress (1971) at 8).

¶58 These hearings reveal that Congress had no intent to preempt state tort law. Quarles
testified as the first witness in the first hearing, stating unequivocally: "The bill does not
affect tort liability." EPA's brief at 28 (quoting House Ag. Comm. Hearing at 42). No one
disagreed and no witness or member of Congress suggested that FIFRA would alter
common law duties or affect the availability of tort damages.

¶59 In addition, the four House and Senate Committee reports describe in detail the
changes that the 1972 amendments would bring to federal pesticide regulation. Each
report summarizes the changes made by the bill, but none mentions any intent to preempt
state damage actions.

¶60 Furthermore, the House and Senate debated the 1972 FIFRA amendments over 5
days. Like the committee hearings and reports, the floor debates reveal no suggestion of a
Congressional intent to preempt state tort law. The preemption provision was not
mentioned on the floor of the Senate. The preemption provision was debated at length on
the floor of the House, but nowhere in the debate is there a suggestion that the preemption
provision would affect state tort law.

¶61 Therefore, as pointed out by EPA, rather than reveal an intent to extinguish state
common law damage remedies, the legislative history of the 1972 FIFRA amendments is
replete with evidence that Congress understood and intended that state damage actions
would remain available. Moreover, there is a presumption against preemption of common
law remedies. Medtronic, 518 U.S. at 485-86, 116 S.Ct. at 2250; Cipollone, 505 U.S. at
518, 523, 112 S.Ct. at 2618, 2621. That long standing presumption can only be overcome
by evidence of a "clear and manifest" intent of Congress to preempt state law. See
Wisconsin Public Intervenor v. Mortier (1991), 501 U.S. 597, 610, 111 S.Ct. 2476, 2484,
115 L.Ed.2d 532. In the absence of evidence that Congress intended to alter then existing

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law, FIFRA should not be interpreted to do so.

¶62 Furthermore, preemption of state tort law would conflict with FIFRA's purposes. The
1972 FIFRA amendments were enacted to address growing public concern with the
environmental and public health effects of pesticides such as DDT. The fact that there is
no federal private damage remedy, that Congress was aware of state damage remedies,
and that Congress decided to give the states the primary enforcement authority under
FIFRA, all strongly imply that Congress did not intend to preempt state common law
damage remedies. Given that the 1972 amendments to FIFRA were intended to provide
increased public protection against the harms caused by pesticides, it would make no sense
to infer that Congress intended to close off all avenues of judicial relief for those injured
by pesticides.

¶63 The Medtronic plurality adopted similar arguments in interpreting the MDA. Absent a
federal private cause of action, preemption of state common law damage actions would
effectively bar relief to persons injured by defective medical devices and "have the
perverse effect of granting complete immunity from design defect liability to an entire
industry that, in the judgment of Congress, needed more stringent regulation. . . ."
Medtronic, 518 U.S. at 487, 116 S.Ct. at 2251. "It is to say the least, 'difficult to believe
that Congress would, without comment, remove all means of judicial recourse for those
injured by illegal conduct,' and it would take language much plainer than the text of §
360k to convince us that Congress intended that result." Medtronic, 518 U.S. at 487, 116 S.
Ct. at 2251 (quoting Silkwood v. Kerr-McGee Corp. (1984), 464 U.S. 238, 251, 104 S.Ct.
615, 623, 78 L.Ed.2d 443). In the same way, FIFRA's preemptive force should not be
interpreted to undermine the statutory purpose to provide increased protection from
harmful pesticides.

¶64 We conclude that Congress intended the term "requirements" in § 136v(b) of FIFRA
to mean enactments of positive law by legislative or administrative bodies, not state law
damage actions. Consequently, we overrule our prior decision in McAlpine for holding
otherwise.

¶65 Accordingly, we hold that Appellants' claims are not preempted by FIFRA and that
the District Court erred in granting summary judgment in favor of DowElanco on that
basis.

¶66 Reversed and remanded for further proceedings consistent with this opinion.

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/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

/S/ THOMAS M. McKITTRICK

District Judge sitting for Justice W. William Leaphart

Justice Karla M. Gray, dissenting.

¶67 I dissent from the Court's opinion. We resolved the dispositive issue in this case,
whether failure to warn claims--pleaded in negligence, strict liability and breach of
express warranty--are preempted by FIFRA, a scant three years ago in McAlpine, holding
such claims are preempted to the extent they expressly or implicitly challenge the
adequacy of the warnings in a pesticide's label. I would hold that McAlpine is controlling
and affirm the District Court.

¶68 Stare decisis, which means to abide by or adhere to decided cases, is of fundamental
and central importance to the rule of law. State v. Gatts (1996), 279 Mont. 42, 51, 928
P.2d 114, 119 (citations omitted). It is a " 'fundamental doctrine which reflects our
concerns for stability, predictability and equal treatment. . . .' " Gatts, 279 Mont. at 51, 928
P.2d at 119 (quoting Formicove, Inc. v. Burlington Northern, Inc. (1983), 207 Mont. 189,
194, 673 P.2d 469, 472). The doctrine is meant to keep courts from lightly overruling past
decisions, in order to heed the necessity for stability and predictability in the law. See
Gatts, 279 Mont. at 51, 928 P.2d at 119 (citing Morayne v. States Marine Lines (1970),
398 U.S. 375, 403, 90 S.Ct. 1772, 1789, 26 L.Ed.2d 339, 358). At the same time, stare
decisis is not a mechanical adherence to the latest decision and, of course, court decisions
are not sacrosanct. Gatts, 279 Mont. at 51, 928 P.2d at 119 (citation omitted). A decision
which is manifestly wrong need not be followed. Gatts, 279 Mont. at 51, 928 P.2d at 119

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(citation omitted). It is my view that, in overruling McAlpine, the Court is merely
substituting a result it finds preferable to that announced in our well-reasoned McAlpine
decision. The Court makes no showing of manifest incorrectness here and, indeed, neither
the EPA's amicus brief in Etcheverry nor the United States Supreme Court's decision in
Medtronic provides an appropriate basis on which to resolve the present case by
overruling McAlpine.

¶69 Starting with the U.S. Department of Justice's brief on behalf of EPA in the recent
California Etcheverry case, I would give it no deference. This is not an internal policy or
regulatory statement of the EPA regarding its administration of FIFRA of the type to
which courts give deference. It is a brief prepared for litigation, part of the government's
litigation strategy. Moreover, as the California Supreme Court observed,

[e]ven though the question presented in this case has been addressed by nine of the
federal circuit courts of appeals, the United States failed to file amicus curiae briefs
in any of the cases and permitted those courts to proceed upon a fundamental
assumption that it now characterizes as mistaken.

Etcheverry, 993 P.2d at 374. In addition, the matter on which the EPA rests its contention
that FIFRA does not preempt failure to warn claims relates to its waiver of review of
pesticide efficacy claims. As was the situation in Etcheverry, however, the case before us
does not relate to pesticide efficacy, that is, whether the pesticide will control the target
pest(s). See Etcheverry, 993 P.2d at 374. The case before us involves the indoor
application of Dursban without ventilation. Thus, as in Etcheverry, the EPA's argument is
irrelevant to the case before us. See Etcheverry, 993 P.2d at 375. Under these
circumstances, the Court's decision to give this johnny-come-lately litigation brief
significant weight is a perilously slim basis on which to premise overruling our well-
reasoned decision in McAlpine.

¶70 Nor do I find Medtronic either useful or persuasive here and this no doubt explains
why it was not called to our attention in McAlpine. As the Court notes several times, the
portion of Medtronic on which it relies is a four-Justice plurality, clearly not controlling
authority even if the MDA and FIFRA contained more similar preemption language.
Indeed, it is my view, as it was the view of the California Supreme Court in Etcheverry,
that Medtronic is distinguishable on the basis that Congress gave the Food and Drug
Administration a unique role in determining the scope of preemption under the MDA.
Congress did not give the EPA an analogous role in implementing FIFRA. See Etcheverry,

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993 P.2d at 373 (citations omitted).

¶71 I would hold that Medtronic does not undermine our conclusion in McAlpine that
FIFRA preempts state failure to warn claims. In doing so, I would join the overwhelming
majority of courts which have examined the question in the wake of Medtronic. See, e.g.,
Grenier v. Vermont Log Bldgs., Inc. (1st Cir. 1999), 96 F.3d 559; Oliver v. Reckitt &
Colman, Inc. (M.D. Fla. 1998), 12 F.Supp.2d 1287; Hawkins v. Leslie's Poolmart (D. N.J.
1997), 965 F.Supp. 566; Kuiper v. American Cyanamid Co. (E.D. Wis. 1997), 960 F.Supp.
1378; Koch v. Shell Oil Co. (D. Kan. 1997), 173 F.R.D. 288; Etcheverry, 993 P.2d at 373;
Ackerman v. American Cyanamid Co. (Iowa 1998), 586 N.W.2d 208; Ackles v. Luttrell
(Neb. 1997), 561 N.W.2d 573, cert. denied, 522 U.S. 928 (1997); Didier v. Drexel
Chemical Co. (Wash. App. 1997), 938 P.2d 364; Lewis v. American Cyanamid Co. (N.J.
1998), 715 A.2d 967; Sherman v. Claire Mfg. Co. (N.Y. App. Div. 1997), 657 N.Y.S.2d
453.

¶72 In my view, no showing has been made that McAlpine is "manifestly wrong." See
Gatts, 279 Mont. at 51, 928 P.2d at 119. Therefore, I would apply stare decisis here,
reaffirm McAlpine and affirm the District Court. I dissent from the Court's failure to do so.

/S/ KARLA M. GRAY

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