Lescs v. Dow Chemical

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CECILE M. LESCS,
Plaintiff-Appellant,

v.

WILLIAM R. HUGHES, INCORPORATED;
WILLIAM R. HUGHES; THE DOW
CHEMICAL COMPANY; DOWELANCO;
TENNECO OIL COMPANY; EXXON
CORPORATION,
Defendants-Appellees,

and
No. 97-2278
TENNECO, INC.,
Defendant.

AMERICAN CROP PROTECTION
ASSOCIATION; RESPONSIBLE
INDUSTRY FOR A SOUND
ENVIRONMENT; CHEMICAL
MANUFACTURERS ASSOCIATION;
NATIONAL PEST CONTROL
ASSOCIATION,
Amici Curiae.

Appeal from the United States District Court

for the Western District of Virginia, at Harrisonburg.

James C. Turk, District Judge.

(CA-94-30091)

Argued: October 29, 1998

Decided: January 14, 1999
Before WILKINSON, Chief Judge, WILLIAMS, Circuit Judge, and
THORNBURG, United States District Judge
for the Western District of North Carolina,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Brian Wolfman, PUBLIC CITIZENS LITIGATION
GROUP, Washington, D.C., for Appellant. Dean Taylor Barnhard,
BARNES & THORNBURG, Indianapolis, Indiana, for Appellees.
ON BRIEF: Douglas L. Stevick, PUBLIC CITIZENS LITIGATION
GROUP, Washington, D.C., for Appellant. H. Edmunds Coleman, III,
BRYAN & COLEMAN, P.L.C., Winchester, Virginia; Thomas H.
Rockwood, Winchester, Virginia, for Appellees. Lawrence S. Ebner,
MCKENNA & CUNEO, L.L.P., Washington, D.C., for Amici Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Cecile M. Lescs filed suit in federal district court seeking compen-
sation for her alleged injuries that resulted from exposure to a pesti-
cide that was applied to her residence. She sought compensation
under Virginia state law theories and asserted the federal court's
diversity jurisdiction. The district court dismissed several defendants
from the case early in the litigation. Upon a motion for summary
judgment by the remaining defendants, Dow Chemical Company
(Dow), William R. Hughes, and William R. Hughes, Inc. (collectively

2
Hughes), the district court dismissed Dow as a defendant and granted
summary judgment to Hughes on a majority of the claims. The grant
of summary judgment was based primarily on the district court's
interpretation of 7 U.S.C.A. § 136v(b) (West Supp. 1998), the pre-
emption provision of the Federal Insecticide, Fungicide, and Rodenti-
cide Act (FIFRA), which expressly preempts state law that would
place different or additional requirements on federally approved pesti-
cide labeling or packaging. The district court allowed a single claim
against Hughes for negligent application of the pesticide to proceed
to trial. After trial, a jury determined that Hughes had not acted negli-
gently, and accordingly, the district court entered judgment. Lescs
appeals only the grant of summary judgment in favor of William R.
Hughes, Inc. (Hughes, Inc.) and Dow, and the district court's action
on a motion to compel production of documents. For the reasons
stated herein, we affirm.

I.

On September 27, 1988, Cecile M. Lescs contracted to purchase a
home in Winchester, Virginia. In conjunction with the closing, the
seller employed Hughes to apply insecticide to the residence, which
Hughes did on November 21, 1988. As part of the treatment, Hughes
injected a pesticide called "Dursban" into the basement floor and
exterior walls. Dursban is subject to the registration requirements of
7 U.S.C.A. § 136a (West Supp. 1998), as administered by the Envi-
ronmental Protection Agency.

Two days after the Dursban application, Lescs noticed a "strong
and potent" odor during a walk-through of the house. (J.A. at 183-84.)
Because the odor was so strong, Lescs testified that she waited until
January 25, 1989, to move into the house and only occasionally vis-
ited during the interim period to perform minor chores. She called
Hughes's office twice before moving into the house to inquire about
the odor and the insecticide treatment and, according to Lescs, the
person with whom she spoke told her that the fumes were not danger-
ous.

After moving in, Lescs stated that she began to suffer severe mala-
dies including nausea, vomiting, diarrhea, skin rash, nervousness, and
irritability. During the time she lived in the residence, her dog died,

3
which prompted her to move out of the house on April 14, 1989, due
to concerns about the cause of the dog's death and her own health.
An examination of the dog, however, produced no conclusive evi-
dence as to the cause of its death.

Lescs then contacted Dow for information about Dursban and
spoke on various occasions with Ken Rose, a Dow technical expert.
During one of these conversations, Lescs stated that Rose told her that
Dursban, "when applied properly, . . . was okay to go into homes."
(J.A. at 210-11.) Regarding ridding the house of excess Dursban,
Rose instructed Lescs to wipe down the walls using a basic solution
such as one made with Cheer brand detergent. Lescs returned to the
house and attempted to decontaminate an upstairs bedroom in accor-
dance with Rose's instructions but abandoned the attempt because she
"would cough and [her] hands would burn." (J.A. at 200.)

In 1990 Lescs filed suit in Virginia state court seeking damages
that she allegedly suffered from the Dursban application. On June 6,
1994, she took a voluntary nonsuit of that action. On December 5,
1994, Lescs brought suit against Dow Chemical Company, Dowe-
lanco, Exxon Corporation, Tenneco, Inc., Tenneco Oil Company,
William R. Hughes, Inc., Hughes and Company Pest Control, and
William R. Hughes in the United States District Court for the Western
District of Virginia, based again on damages that she allegedly suf-
fered from Dursban exposure. By order dated June 5, 1995, the dis-
trict court dismissed with prejudice, pursuant to Federal Rule of Civil
Procedure 12(b)(6), all of Lescs's claims against Dowelanco, Ten-
neco, Inc., Tenneco Oil Company, and Exxon Corporation, and dis-
missed the strict liability claims against the other defendants.1 Hughes
and Dow, the remaining defendants, moved for summary judgment on
the unresolved claims. On August 8, 1997, the district court granted
_________________________________________________________________
1 "Hughes and Company Pest Control" is a trade name which was
acquired by Pest Management on May 10, 1991, along with the assets of
William R. Hughes, Inc. In an order dated June 2, 1995, the district court
denied Lescs's motion to add Pest Management as a defendant, thereby
removing Hughes and Company Pest Control as a defendant. Hughes,
Inc. and William R. Hughes, individually, remained defendants and
Lescs does not appeal the refusal to add Pest Management as a defen-
dant.

4
Dow's motion for summary judgment, resolving all claims in favor
of Dow. See Lescs v. Dow Chem. Co., 976 F. Supp. 393 (W.D. Va.
1997). Hughes's motion for summary judgment was granted in part
and denied in part, leaving only one claim against Hughes for negli-
gent application of the pesticide. See id. at 401. The negligent applica-
tion action was tried before a jury beginning on August 25, 1997. The
jury returned a verdict in favor of Hughes, and the district court
entered final judgment in favor of all defendants on September 23,
1997.

Lescs does not appeal the dismissal in favor of Dowelanco, Ten-
neco, Inc., Tenneco Oil Company, and Exxon Corporation, nor does
she contest the dismissal of the strict liability claims against Hughes
or Dow. She does, however, contend that the district court improperly
determined that several of the state law claims were preempted by
federal law under the preemption provision of FIFRA, 7 U.S.C.A.
§ 136v(b) (West Supp. 1998), and that sufficient factual questions
were presented to preserve her claims against Dow and William R.
Hughes, Inc. (Hughes, Inc.).2 Specifically, Lescs argues that the dis-
trict court erred in granting summary judgment in favor of Dow and
Hughes, Inc. on various state law claims of negligence, negligence
per se, misrepresentation, negligent testing, and breach of an implied
warranty of merchantability. Lescs also argues that the district court
abused its discretion when it failed to rule on a motion by Lescs to
compel the production of certain documents.

These arguments reduce to three questions. First, whether this
Court's interpretation of 7 U.S.C.A. § 136v(b) (West Supp. 1998), the
preemption clause of FIFRA, is still appropriate in light of the United
States Supreme Court's holding in Medtronic, Inc. v. Lohr, 116 S. Ct.
2240 (1996), and, if it is, whether the district court properly applied
the standard. Second, whether the district court improperly ignored
Dow's violation of federally mandated standards, independent indus-
try standards, and the breach of consumer expectations when it
granted summary judgment in favor of Dow on the breach of implied
warranty claim. Third, whether the district court improperly failed to
rule upon Lescs's motion to compel discovery.
_________________________________________________________________
2 Lescs does not pursue any claims against William R. Hughes, individ-
ually, in this appeal.

5
We address each of these issues in turn.

II.

The first two issues involve a review of the district court's grant
of summary judgment. "The appropriate standard of review for the
granting of summary judgment is de novo." Cohn v. Bond, 953 F.2d
154, 157 (4th Cir. 1991). "[S]ummary judgment is proper `if the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). Because this appeal
of summary judgment hinges on determining whether federal law pre-
empts state law claims, an issue of material fact appropriate for trial
can arise only if the claim presented is not legally preempted.

There is, however, a firmly established jurisprudential presumption
against the preemption of state law. See, e.g. , Rice v. Santa Fe Eleva-
tor Corp., 331 U.S. 218, 230 (1947). Nevertheless, Congress may
expressly preempt state law under the Supremacy Clause, assuming
it acts within its constitutionally delegated authority. See U.S. Const.,
art. VI, § 2; Pacific Gas & Elec. Co. v. State Energy Resources Con-
servation & Dev. Comm'n, 461 U.S. 190, 203 (1983); Rice, 331 U.S.
at 230. If Congress statutorily expresses its intent to preempt state
law, as in FIFRA, the only remaining inquiry is the scope of preemp-
tion. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 532 (1992)
(Blackmun, J., concurring in part and in the judgment, and dissenting
in part). The FIFRA statutory preemption provision ensures the uni-
formity of pesticide regulation by pronouncing that a "State shall not
impose or continue in effect any requirements for labeling or packag-
ing [of federally registered pesticides] in addition to or different from
those required under [FIFRA]." 7 U.S.C.A.§ 136v(b) (West Supp.
1998). Thus, federal law clearly sends the message that it solely gov-
erns the labeling and packaging of pesticides and that any state law
affecting those requirements is preempted.

This Court has extensively explored the reach of the preemption
language contained in § 136v(b). See Lowe v. Sporicidin Int'l, 47 F.3d
124 (4th Cir. 1995); Worm v. American Cyanimid Co., 5 F.3d 744

6
(4th Cir. 1993) (Worm II); Worm v. American Cyanimid Co., 970 F.2d
1301 (4th Cir. 1992) (Worm I). These cases made clear that state laws
imposing different or additional requirements for pesticide labeling or
packaging would be preempted. See Worm I, 970 F.2d at 1308.3 To
further define this general standard, we held that"common law causes
of action alleging that the language of an EPA approved label failed
to adequately warn of risks associated with pesticide are preempted,"
Worm II, 5 F.3d at 748, and that "any state law claim that would
require the defendant to alter its EPA-approved warning label, label-
ing, or packaging to avoid liability is preempted," Lowe, 47 F.3d at
129. But these cases also recognized that FIFRA does not preempt
state law that authorizes a claim for the "breach of a FIFRA-created
duty." Id. at 129-30 (citing Worm II , 5 F.3d at 748). State law claims
unrelated to labeling or packaging such as negligent testing, manufac-
turing, and formulating, also escape FIFRA's preemptive effect. See
Worm II, 5 F.3d at 747. Applying these precedents to the facts of this
case, the district court determined that the majority of Lescs's state
law claims were preempted.

A.

On appeal, however, Lescs argues that we should reconsider our
FIFRA preemption jurisprudence in light of the Supreme Court's
decision in Medtronic, Inc. v. Lohr, 116 S. Ct. 2240 (1996) (plurality
opinion), which involved statutes governing the regulation of medical
devices. In a splintered opinion, a plurality of the Supreme Court
determined that generally applicable state law, which did not specifi-
cally conflict with federal law, was not preempted. See Medtronic,
116 S. Ct. at 2251-53, 2257-58. Medtronic held that "pre-emption
_________________________________________________________________
3 Notably, every circuit that recently has addressed this question simi-
larly has interpreted the extent of preemption mandated by FIFRA. See,
e.g., Kuiper v. American Cyanamid Co., 131 F.3d 656, 662 (7th Cir.
1997), cert. denied, 118 S. Ct. 1839 (1998); Grenier v. Vermont Log
Bldgs., Inc., 96 F.3d 559, 563 (1st Cir. 1996); Taylor AG Indus. v. Pure-
Gro, 54 F.3d 555, 561 (9th Cir. 1995); Welchert v. American Cyanamid,
Inc., 59 F.3d 69, 73 (8th Cir. 1995); MacDonald v. Monsanto Co., 27
F.3d 1021, 1024-25 (5th Cir. 1994); Papas v. Upjohn Co., 985 F.2d 516,
518 (11th Cir. 1993); Arkansas-Platte & Gulf Partnership v. Van Waters
& Rogers, Inc., 981 F.2d 1177, 1179 (10th Cir. 1993).

7
occur[s] only where a particular state requirement threatens to inter-
fere with a specific federal interest." Id. at 2257. The opinion, how-
ever, did not interpret FIFRA, but the Medical Device Amendments
of 1976 (MDA), 90 Stat. 539, which contained a preemption clause
codified at 21 U.S.C.A. § 360k(a) (West Supp. 1998).4 The preemp-
tion provision analyzed in Medtronic differs from the one set forth in
FIFRA in at least three respects. First, although it also applied to any
"requirement" established by state law, it was not limited to merely
labeling or packaging. Second, under subsection (b), the clause
allowed the FDA to exempt state requirements from the effect of pre-
emption. 21 U.S.C.A. § 360k(b) (West Supp. 1998) ("Upon applica-
tion of a State . . ., the Secretary may, by regulation promulgated after
notice and opportunity for an oral hearing, exempt from subsection
(a) of this section . . . a requirement of such State . . . ."). Third, and
perhaps most important, the Court found that the"language of
[§ 360k was] not entirely clear." Medtronic, 116 S. Ct. at 2255; see
also id. at 2260 (Breyer, J., concurring in part and concurring in the
judgment) ("[T]he MDA's pre-emption provision is highly ambigu-
ous."). Because these aspects of the statutory scheme differentiated
the effect of the MDA preemption clause from the preemption clause
contained in FIFRA and supported the Medtronic holding, we deter-
mine that our interpretation of FIFRA's preemption clause remains
unaffected.5 Therefore we, as a panel, may not disturb the settled law
of this Circuit.
_________________________________________________________________
4 That preemption clause read as follows:

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.

21 U.S.C.A. § 360k(a).
5 We note that Justice Breyer agreed with the plurality in two of these
three respects, thus adding the fifth vote to form a majority on at least
two distinguishing points of the MDA preemption clause. See Medtronic

8
1.

In Medtronic, the principal opinion began its analysis with Con-
gress's use of the word "requirement" and determined that giving the
term broad effect would destroy virtually all remedies available under
state law and would severely interfere with state sovereignty. See
Medtronic, 116 S. Ct. at 2251-52. If Congress had intended such a
broad effect, the plurality reasoned, then it would have used a term
such as "remedy," which would have unambiguously achieved the
same effect. See id. at 2251. Instead, based upon a reading of the
entire statute, the plurality concluded that in using the term "require-
ment," Congress focused not on the preemption of broad common law
causes of action, but on "specific, conflicting State statutes and regu-
lations." Id. at 2252. The plurality, however, expended significant
effort explaining that the language of the statute and its preemption
clause was unusual in its effect, thus narrowing the extent of its oper-
ation. See id.

2.

A majority of the Court in Medtronic interpreted the preemption
language through a review of the entire regulatory scheme established
by the MDA, which broadly delegated authority to the FDA. "Con-
gress has given the FDA a unique role in determining the scope of
[the MDA's] pre-emptive effect." Id. at 2255. The principal opinion
explained that the delegation of authority placed the FDA in a favor-
able position to judge whether state regulations would hinder the
achievement of congressional goals. See id. at 2255-56. Accordingly,
Congress provided the FDA with the authority to exempt state laws
from the operation of the MDA's preemption clause. See 21 U.S.C.A.
360k(b); Medtronic, 116 S. Ct. at 2255.
_________________________________________________________________

v. Lohr, 116 S. Ct. 2240, 2260 (1996) (Breyer, J., concurring in part and
concurring in the judgment) (noting the important role that the FDA
plays in interpreting the effect of preemption and the ambiguity of the
preemption language). Thus, the majority holding depends upon the
unique role of the FDA and the ambiguity of the preemption language
in the MDA.

9
This unusual delegation of authority, combined with the reading of
the statutory scheme as a whole, advanced in the principal opinion
and which took into account both the use of the word"requirement"
in other passages and the FDA's interpretation of the regulation,
encouraged a departure from a plain reading of the preemption lan-
guage itself, in favor of a reading that interpreted the broad statutory
purpose:

[Section] 360k refers to "requirements" many times through-
out its text. In each instance, the word is linked with lan-
guage suggesting that its focus is device-specific enactments
of positive law by legislative or administrative bodies, not
the application of general rules of common law by judges
and juries. . . . Moreover, in subsection (b) the FDA is given
authority to exclude certain "requirements" from the scope
of the pre-emption statute. Of the limited number of"ex-
emptions" from pre-emption that the FDA has granted, none
even remotely resemble common-law claims.

Medtronic, 116 S. Ct. at 2252. The principal opinion, though not
joined by a fifth Justice, thus reasoned that the overall structure of the
statute mandated a narrow interpretation of the scope of preemption
and found that common law claims regarding the regulated devices
generally were not preempted by the MDA. See Medtronic, 116 S. Ct.
at 2253.6
_________________________________________________________________
6 We note, however, that the plurality opinion in Medtronic did not pre-
clude the possibility that common law actions could be preempted by the
MDA, but reserved that question for a later day. See Medtronic, Inc. v.
Lohr, 116 S. Ct. 2240, 2257, 2258-59 (1996). Five Justices, however,
concluded that the term "requirements" encompassed common law
claims. See id. at 2259-60 (Breyer, J., concurring in part and concurring
in the judgment); id. at 2262 (O'Connor, J., joined by Rehnquist, C.J.,
Scalia & Thomas, J.J., concurring in part and dissenting in part); see also
Grenier v. Vermont Log Bldgs., Inc., 96 F.3d 559, 563 (1st Cir. 1996) ("It
was once an open question, but is now settled by the Supreme Court in
Cipollone and [Medtronic], that`requirements' in this context pre-
sumptively includes state causes of action as well as laws and regula-
tions."). Thus the majority position of the Supreme Court, to which we
are bound, is that common law claims could in fact be preempted by the

10
3.

Importantly, however, the principle opinion in Medtronic made
clear that other statutory preemption schemes would not necessarily
be subject to the same interpretation. It specifically distinguished the
preemption statute at issue in Cipollone v. Liggett Group, 505 U.S.
504 (1992). In Cipollone, the Court interpreted the extent of preemp-
tion mandated by the Public Health Smoking Act of 1969, Pub. L. No.
91-222, 84 Stat. 87 (1969 Act), and the Federal Cigarette Labeling
and Advertising Act, Pub. L. No. 89-92, 79 Stat. 282 (1965) (1965 Act).7
See Cipollone, 505 U.S. at 514-15. Unlike the statute at issue in
Medtronic, the Court in Cipollone determined that the language of the
1969 Act extended federal preemption beyond "specific, conflicting
State statutes," Medtronic, 116 S. Ct. at 2252, to encompass common
law claims that relied on "omissions or inclusions in . . . advertising
or promotions," Cipollone, 505 U.S. at 530-31. Furthermore, the
_________________________________________________________________
language used in the MDA. Cf. O'Dell v. Netherland, 95 F.3d 1214,
1224 (4th Cir. 1996) (noting that the principle of law resulting from a
plurality opinion is the narrowest holding agreed to by a majority of the
Court). A majority of the Court, therefore, does not call into question our
position that common law claims and enactments of positive law are
equally subject to preemption.

7 Section 5 of the Federal Cigarette Labeling and Advertising Act con-
tained the following preemption provision:

(a) No statement relating to smoking and health, other than
the statement required by section 4 of this Act, shall be required
on any cigarette package.

(b) No statement relating to smoking and health shall be
required in the advertising of any cigarettes the packages of
which are labeled in conformity with the provisions of this Act.

§ 5, 79 Stat. at 283. Subsection (b) was amended by the Public Health
Smoking Act of 1969 to read as follows:

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

§ 5(b), 84 Stat. at 88.

11
smoking regulations did not grant substantial authority to a federal
agency to determine the range of preemption. Therefore, the Court
looked no further than the specific text of the preemption clause con-
tained in the 1969 Act, which was unambiguous in expressing the
scope of preemption. See id. at 521 ("`We must give effect to this
plain language unless there is good reason to believe Congress
intended the language to have some more restrictive meaning.'"
(quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983))).

As Medtronic's principal opinion noted, the preemption clause in
the 1969 Act specifically targeted "a limited set of state requirements
-- those based on smoking and health -- and then only . . . a limited
subset of the possible applications of those requirements -- those
involving the advertising or promotion of any cigarettes the packages
of which are labeled in conformity with the provisions of the federal
statute." Medtronic, 116 S. Ct. at 2252. Thus, the preemption lan-
guage in the 1969 Act, unlike the language in the MDA, was clear as
to its operation and was interpreted accordingly. See Cipollone, 505
U.S. at 523-24 ("[W]e must fairly but -- in light of the strong pre-
sumption against pre-emption -- narrowly construe the precise lan-
guage of § 5(b) and we must look to each of petitioner's common-law
claims to determine whether it is in fact pre-empted.")

From this analysis, we conclude that our established interpretation
of the FIFRA preemption clause is unchanged by Medtronic. As we
have stated previously, "both the statute contained in Cipollone and
FIFRA contain similar preemption provisions as to labeling." Lowe,
47 F.3d at 129. But key to our determination is the text of the FIFRA
preemption provision, which mandates its reach:"any requirements
for labeling or packaging in addition to or different from those
required under [FIFRA]." 7 U.S.C.A. § 136v(b); see Worm II, 5 F.3d
at 747 (stating that like FIFRA, the statutes at issue in Cipollone "also
contain explicit language addressing the preemptive scope of their
labeling requirements"). FIFRA's language does not suggest some
extraordinarily broad scope of preemption that extends beyond the
statutory scheme. Nor does it work to destroy all means of redress for
plaintiffs under the common law of a state. See Worm II, 5 F.3d at
747 (holding that common law claims unrelated to labeling or packag-
ing are not preempted). In short, the statutory language clearly imple-
ments the narrow purpose of Congress to effect uniform labeling and

12
packaging of pesticides. Because the scope of FIFRA preemption is
plain, it does not require a circuitous analysis to divine congressional
intent. As we stated in Worm II, in accord with the guidance provided
by Cipollone, this Court has "interpret[ed] the express language"
when determining the scope of the FIFRA preemption clause. Id. We
therefore disagree with Lescs's contention that the Medtronic holding
compels a new interpretation of the FIFRA preemption clause.

B.

Despite this determination, however, we must still review whether
the district court properly applied our interpretation of the scope of
FIFRA preemption. As we stated at the outset, FIFRA preempts any
state law, whether a positively enacted statute or a common law duty,
that "would impose a labeling requirement inconsistent with those
established by FIFRA." Worm I, 970 F.2d at 1308. Following this
standard, we have held various claims to be preempted if they were
based upon EPA-approved labeling language. Such claims have
included a failure to warn, a breach of an express warranty or an
implied warranty of merchantability, see Lowe , 47 F.3d at 129, 132,
and a false representation, see Worm II, 5 F.3d at 748. Claims that
relate to a product defect such as "negligent testing, manufacturing,
and formulating" or that were based upon a state law allowing a claim
for the breach of a FIFRA-created duty, however, generally are not
preempted. Worm II, 5 F.3d at 747-48; see Lowe, 47 F.3d at 130 (not-
ing a state law claim for the breach of a FIFRA-created duty, which
prohibited claims about the product that substantially differed from
statements in the registration statement, was not preempted). We now
apply this analysis to Lescs's claims.

1.

Lescs first argues that her label-based claims, including negligent
failure to warn, misbranding, and breach of an implied warranty of
merchantability based on inadequate warnings on the label, are not
preempted because they use compliance with federal law as the foun-
dation for a state law claim under a negligence-per-se theory of liabil-
ity. Lescs asserts that the Dursban label, approved under the FIFRA-
mandated registration process, does not comply with certain aspects
of FIFRA itself or with the regulations promulgated under its author-

13
ity. She thus concludes that "even if the court were correct in charac-
terizing all of Ms. Lescs' negligence claims as labeling claims, they
would not be preempted." (Appellant's Br. at 26.) This argument
relies in part on Lescs's contention that Medtronic altered the land-
scape of preemption by allowing claims under general common law
duties. Because we concluded that Medtronic did not alter our earlier
holdings, this challenge to the grant of summary judgment need not
detain us long.

As we stated in Worm II,

If a state elects to recognize that a breach of a FIFRA-
created duty forms the basis for a state remedy, we have
held that it is permitted to do so by 7 U.S.C. § 136v(b).
Allowing such actions, however, is substantially distinguish-
able from accepting the argument that the state common law
duty to warn is not "in addition to or different from" the fed-
erally defined duty.

Worm II, 5 F.3d at 748 (citations omitted). Lescs's claims for mis-
branding, negligent failure to warn, or breach of an implied warranty
of merchantability, all brought "under the theory that the pesticide
lacked adequate warnings," (Appellant's Br. at 23), clearly "would
require the defendant to alter its EPA-approved warning label, label-
ing, or packaging to avoid liability," Lowe , 47 F.3d at 129. The dis-
trict court, therefore, properly concluded that these claims were
preempted.

2.

Next, Lescs ambiguously alleges in her brief that Dow may also
have violated other FIFRA requirements that were independent of the
labeling standards. Because the enforcement of these standards would
not impact the label, she argues that FIFRA's preemption provision
would not prevent a state from allowing a negligence-per se claim to
be based on the violation of these other FIFRA requirements. The
only nonlabel-based FIFRA violation she specifically alleges, how-
ever, is Dow's failure to report instances of adverse health effects
related to Dursban exposure in violation of 7 U.S.C.A. § 136d(a)(2)
(West Supp. 1998) (requiring registrants to file reports concerning

14
"unreasonable adverse effects on the environment of the pesticide").
Even if Virginia recognized this violation of a federal statute as the
basis for a state law negligence-per-se claim, our inquiry is not ended.

Under Virginia law, more is required than the mere violation of a
statute to establish a negligence per se claim, because private citizens
are not permitted the wholesale right to become enforcers of state and
federal laws. A "violation of a statute constitutes negligence per se"
only "if such negligence is a proximate or efficiently contributing
cause of an injury." Esso Standard Oil Co. v. Williams, 117 S.E.2d
93, 95 (Va. 1960). To make a claim for negligence per se under Vir-
ginia law, a plaintiff must, therefore, not only prove the violation of
a statute, but also causation and corresponding damages.

Lescs offers no evidence that her alleged injuries were caused by
Dow's failure to report the adverse environmental effects of Dursban.
She has thus not met her burden on an essential element of her claim
and summary judgment is appropriate. See Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).

3.

Further, Lescs urges claims of "misrepresentation" against both
Dow and Hughes, Inc., based on the "general duty not to deceive" and
argues that the district court improperly determined that these claims
were preempted. (Appellant's Br. at 27, 29.) First, she alleges that an
employee of Hughes, Inc. improperly stated that the Dursban "fumes
were not dangerous." (Appellant's Br. at 28.) Second, she claims that
Rose, the technical expert at Dow, made two improper statements,
one as to the appropriateness of using Dursban in residences and the
other regarding the proper method for decontaminating her house.
Lescs contends that these claims are not preempted under our holding
in Lowe, which permitted state law claims to stand if they related to
statements that substantially differed from the language on the label.

This Court held in Lowe that a party could sue under a state law
cause of action that would hold a defendant liable for violating a pro-
vision of FIFRA, specifically 7 U.S.C.A. § 136j(a)(1)(B) (West
1980), which states:

15
 [I]t shall be unlawful for any person in any State to distrib-
ute [or] sell . . . to any person--

....

(B) any registered pesticide if any claims made for it as a
part of its distribution or sale substantially differ from any
claims made for it as a part of the statement required in con-
nection with its registration . . . .

7 U.S.C.A. § 136j(a)(1)(B); Lowe, 47 F.3d at 130. This holding was
consistent with our interpretation of the FIFRA preemption clause as
not affecting state law claims that based a cause of action upon the
breach of a FIFRA-created duty. See Lowe, 47 F.3d at 129-30. We
noted Maryland is not preempted from imposing common law liabil-
ity for advertising statements that substantially differed from those
made in the EPA registration statement, see id. at 130, which included
the EPA-approved labeling, see 7 U.S.C.A.§ 136a(c)(5)(B) (West
1980). Equally as clear is this Court's conclusion that a claim chal-
lenging "the same language that constitutes an EPA-approved label,
labeling, or packaging," is preempted. Lowe , 47 F.3d at 129 (citing
Worm II, 5 F.3d at 748).

In this case, Lescs does not claim the breach of a FIFRA duty
under a state common law theory of recovery recognized in Virginia,
but instead, simply asserts that Dow and Hughes, Inc. both breached
a general common law duty in the Commonwealth of Virginia not to
misrepresent. We agree with the district court that Rose's statement
to Lescs, "that he felt that when applied properly, that this chemical
was okay to go into homes," (J.A. at 210-11), was not substantially
different from the language on the label, and thus any claim based
upon it was preempted. See Lescs v. Dow Chem. Co., 976 F. Supp.
393, 400 (W.D. Va. 1997). All of Lescs's claims under the theory of
misrepresentation, however, must fail for a more basic reason.

Although not mentioned by the parties to this appeal, the federal
courts of this Circuit repeatedly have determined that Virginia does
not recognize a general cause of action for negligent misrepre-
sentation. See Bentley v. Legent Corp., 849 F. Supp. 429, 434 (E.D.
Va. 1994) ("Virginia does not recognize any tort of negligent

16
misrepresentation."), aff'd sub nom. Herman v. Legent Corp., 50 F.3d
6 (4th Cir. 1995); Joyce v. Lincoln Nat'l Life Ins. Co., 845 F. Supp.
353, 354 (E.D. Va. 1993) (same), aff'd sub nom. Joyce v. Benefits
Mktg. Group, Inc., 32 F.3d 562 (4th Cir. 1994); Haigh v. Matsushita
Elec. Corp. of Am., 676 F. Supp. 1332, 1349-50 (E.D. Va. 1987)
(same). Because Lescs advances no valid theory of state law to sup-
port her claim, we must affirm the grant of summary judgment in
favor of Dow and Hughes, Inc. on the misrepresentation claims.

4.

Lescs also argues that the district court erred by characterizing her
negligent testing claim as a subset of other negligence claims and
holding that they were collectively preempted. From a reading of the
district court opinion, however, it is clear that the district court did not
address negligent testing in its opinion. We do not assume, as Lescs
does, that this omission was due to the district court's inclusion of the
negligent testing claim with other causes of action. Whatever the dis-
trict court's reasoning, this omission was appropriate because Lescs
did not meet her burden under the pleading rules to present a claim
for negligent testing.

Federal Rule of Civil Procedure 8(a) requires "a short and plain
statement of the claim showing that the pleader is entitled to relief."
Fed. R. Civ. P. 8(a)(2). "This portion of Rule 8 indicates the objective
of the rules to avoid technicalities and to require that the pleading dis-
charge the function of giving the opposing party fair notice of the
nature and basis or grounds of the claim . . . ." 5 Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1215 (1990).
"Nevertheless, despite the more forgiving pleading standards, the
essence of a claim remains its factual elements." Gilbane Bldg. Co.
v. Federal Reserve Bank, 80 F.3d 895, 900 (4th Cir. 1996). Under
Rule 8(a)(2), a claim will be acceptable only if a"plaintiff colorably
states facts which, if proven, would entitle him to relief." Adams v.
Bain, 697 F.2d 1213, 1216 (4th Cir. 1982).

A review of Lescs's complaint, including the page her counsel spe-
cifically referenced at oral argument, reveals only a brief mention of
Dow's duty to properly test Dursban and a bare allegation that Dow

17
failed to properly design and manufacture Dursban. 8 During oral argu-
ment, Lescs's counsel asserted that a negligent testing claim is "simi-
lar to a design defect claim, but different." Despite our attempt to
locate factual allegations that would give rise to a claim that Dow
failed to properly test Dursban, the complaint fails even to state that
Dow breached this duty, much less to assert facts that, if true, would
tend to show that Dow breached its duty to test Dursban. Neither Dow
nor the district court received proper notice of the claim.9

Our reading of Lescs's complaint reveals no factual allegations that
would entitle Lescs to relief under a theory of negligent testing, nor
does she point to any in her brief on appeal. We have no choice but
to determine that Lescs failed to properly present a claim under a the-
ory of negligent testing and thus her challenge to summary judgment
on this point is without merit.

III.

The district court also granted summary judgment in favor of Dow
on Lescs's claim that Dow breached the implied warranty of mer-
chantability by marketing an unreasonably dangerous product.

Under Virginia law, to prove a breach of the implied warranty of
merchantability, a plaintiff must show: "(1) that the goods were
unreasonably dangerous for the use to which they would ordinarily be
put or for some other reasonably foreseeable purpose, and (2) that the
unreasonably dangerous condition existed when the goods left the
manufacturer's hands." Morgen Indus., Inc. v. Vaughan, 471 S.E.2d
489, 492 (Va. 1996). Unreasonably dangerous is interpreted as "de-
_________________________________________________________________
8 We do note that in one of the numerous filings in the district court,
Lescs did allege "the negligent failure to test adequately before putting
said product upon the market," in reference to the defendants generally.
(J.A. at 348.) But, this broad allegation was devoid of factual support.
9 Further supporting our conclusion is Lescs's own statement to this
Court in her reply brief: "Defendants did not even to [sic] mention Ms.
Lescs' negligent testing claim in its summary judgment briefing in the
court below, let alone present a factual argument on this theory. Nor did
the district court refer to this claim in its summary judgment opinion."
(Appellant's R. Br. at 12 (citations and footnotes omitted).)

18
fective in assembly or manufacture, unreasonably dangerous in
design, or unaccompanied by adequate warnings concerning its haz-
ardous properties." Id. A design defect can be proven if the product
fails to meet government or industry standards or the reasonable
expectations of consumers. See Alevromagiros v. Hechinger Co., 993
F.2d 417, 420 (4th Cir. 1993) (interpreting Virginia law). Lescs does
not complain of a manufacturing defect and any claim based on inad-
equate warnings is preempted, leaving only a claim for a design
defect. But as we explain, there is no proof that Dursban failed to
meet either government standards, industry standards, or consumer
expectations.

Lescs's only argument that Dow violated government standards
consists of her contentions that Dursban was misbranded, and that
Dow did not submit reports of adverse health effects caused by Durs-
ban. As we have already explained in Part II.A, claims that would
require the placement of different or additional requirements on the
label are preempted. And, in Part II.B.2, we explained that there was
no causal link established between Lescs's claimed injuries and a fail-
ure to report the adverse effects of Dursban on the environment. Fur-
thermore, we fail to see how government reporting requirements
relate to the product's design. Thus, Lescs cannot successfully pursue
her claim for the breach of the implied warranty of merchantability
on these grounds.

The contention that Dursban failed to meet consumer expectations
must also fail. "Consumer expectations, which may differ from gov-
ernment or industry standards, can be established through evidence of
actual industry practices, . . . published literature, and from direct evi-
dence of what reasonable purchasers considered defective."
Alevromagiros, 993 F.2d at 420-21 (internal quotation marks omit-
ted). Despite the fact that consumer expectations might deviate from
government mandated standards, certainly the existence of those stan-
dards, especially when they relate to the content of product informa-
tion, bears on reasonable expectations. As the district court pointed
out, the warning label is approved by the EPA and it would be anoma-
lous to hold "`that a consumer is entitled to expect a product to per-
form more safely than its government-mandated warnings indicate.'"
Lescs, 976 F. Supp. at 399 (quoting Papike v. Tambrands Inc., 107
F.3d 737, 743 (9th Cir.), cert. denied, 118 S. Ct. 166 (1997)). More-

19
over, Lescs has produced no information about actual industry prac-
tices, literature, or direct evidence of reasonable consumer
expectations that would support her contention that Dursban failed
this standard. There is no evidence that Dursban failed to meet con-
sumer expectations.

Lastly, Lescs offers two theories to support her contention that
Dow failed to meet industry standards in its production of Dursban.
She first argues that the Chemical Manufacturers Association (CMA)
Responsible Care Progress Report for 1995-1996 (CMA Report)
establishes standards with which Dow failed to comply.10 As Dow
points out, there are obstacles to using the CMA Report as a basis for
determining whether Dow followed industry standards. To begin
with, the report relates not to the time period during which the rele-
vant events occurred, but instead relates to 1995-1996. Virginia law
requires that any standards asserted be those "existing when the
[product] was manufactured."11 Mears v. General Motors Corp., 896
F. Supp. 548, 551 (E.D. Va. 1995) (interpreting Virginia law). For
this reason alone, the report is irrelevant and does not support Lescs's
claim. In addition, however, a review of the CMA Report reveals little
in the way of recognizable standards.12 See Greene v. Boddie-Noell
Enters., 966 F. Supp. 416, 419 (1997) (noting a"plaintiff's obligation
_________________________________________________________________
10 We note the question raised as to whether the CMA Report was
admitted by the district court and thus properly a part of the record on
appeal. Because we determine that this report would not support Lescs's
claims even if it were admitted, we have no need to resolve this issue.
11 We decline Lescs's invitation to visit a CMA website for the purpose
of authenticating the CMA Report or determining what CMA standards
existed during the relevant time period.
12 Lescs highlights various "standards" in the CMA Report: "`produce
chemicals that can be . . . used . . . safely;' to`make health, safety and
environmental considerations a priority in our planning for all existing
and new products and processes;' to `report promptly to officials,
employees, customers and the public, information on chemical-related
health and environmental hazards and to recommend protective mea-
sures;' and `to extend knowledge by conducting or supporting research
on the health, safety and environmental effects of our products.'" (Appel-
lant's Br. at 33-34.) To put it mildly, this language paints with a broad
brush.

20
to demonstrate . . . proof that the defendant breached a recognizable
standard").

Lescs's second theory on the manner in which Dow violated indus-
try standards borders on frivolous. Without revealing with which
industry standard Dow failed to comply, Lescs summarily asserts that
the inclusion of xylene range solvent in Dursban was inappropriate
because a label then in effect for one manufacturer's concentrated
xylene product stated that it was "for industrial use only." (J.A. at
472.) This assertion fails to recognize that the EPA approved warning
label for Dursban took into account all of its components. Common
sense alone would dictate that the hazardous propensities of a chemi-
cal may vary greatly according to its dilution and potential interaction
with other components. In other contexts, such as OSHA regulations,
the federal government has recognized this fact. See 29 C.F.R.
§ 1910.1200(d)(5)(i), (ii) (1998) (stating that a solution is only con-
sidered to manifest the same health risks as its component parts if the
solution is not tested as a whole). We find no industry standard that
Dow violated by including a xylene range solvent in Dursban.

In summary, the district court properly granted summary judgment
in favor of Dow on Lescs's contention that Dow breached the implied
warranty of merchantability. There is insufficient evidence that Dow
failed to meet government standards, industry standards, or consumer
expectations in its production and sale of Dursban.

IV.

Lescs's final complaint is that the district court failed to rule on her
second motion to compel production of documents, which was filed
on May 17, 1996 (May 17, 1996 motion). Because this issue involves
the district court's control over the discovery process, the district
court will be reversed only upon a finding that the court abused its
discretion. See Cohn v. Bond, 953 F.3d 154, 157 (4th Cir. 1991);
Worm II, 5 F.3d 744, 749 (4th Cir. 1993).

On May 21, 1997, the district court entered an order (May 21, 1997
order) denying Lescs's motion to reopen discovery stating: "Plaintiff
has already had ample opportunity for proper discovery. The court
believes that Defendants will be unfairly prejudiced by any further

21
discovery." (J.A. at 391 (emphasis added).) This order referred
directly to a motion filed by Lescs on April 14, 1997, which was enti-
tled: "Motion to Reopen Discovery, Allow Additional Experts and
Expansion of Opinions of Existing Experts, to Amend the Pleadings,
For Deferral of Decisions on all Existing Motions Pending Such
Additional Discovery and for Other Relief by Cecile M. Lescs" (April
14, 1997, motion). (J.A. at 17.) The May 17, 1996 motion, which is
the subject of Lescs's argument, was filed approximately a year prior
to the court's May 21, 1997 order. Based on the wording of the May
21, 1997 order, however, it disposed of all outstanding discovery
issues, not just the April 14, 1997 motion -- noting its reasoning that
Lescs already had ample opportunity for discovery.

The May 21, 1997 order adequately disposed of all outstanding
motions to compel discovery and reflects no abuse of discretion.
There is no cause to remand this issue to the district court.

V.

For the reasons stated herein, we affirm the judgment of the district
court.

AFFIRMED

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