ATTORNEYS FOR APPELLANT DOW CHEMICAL CO. ATTORNEYS FOR
APPELLEES
Stanley C. Fickle Richard Mullineaux Roger
L. Pardieck
Robert D. MacGill KIGHTLINGER & GRAY, LLP Karen M.
Davis
Dean T. Barnhard New Albany, Indiana PARDIECK &
GILL
Joseph G. Eaton Seymour, Indiana
William E. Padgett Janet Barbre Norton
BARNES & THORNBURG DOW AGROSCIENCES LLC John Vargo
Indianapolis, Indiana Indianapolis, Indiana Janet O.
Vargo
PARDIECK & GILL
ATTORNEY FOR APPELLANT AFFORDABLE PEST CONTROL Carmel, Indiana
Gene F. Zipperle, Jr.
CRAFTON, MARTIN & ZIPPERLE
Louisville, Kentucky
ATTORNEYS FOR APPELLANT LOUISVILLE CHEMICAL CO.
John W. Bilby
Henry S. Alford
MIDDLETON & REUTLINGER
Jeffersonville, Indiana
In The
INDIANA SUPREME COURT
THE DOW CHEMICAL COMPANY, )
DOWELANCO a/k/a DOW AGROSCIENCES )
LLC, ELI LILLY & CO., ROFAN SERVICES )
INC., and EPCO, INC. )
Appellants-Defendants )
)
LOUISVILLE CHEMICAL CO., INC. ) Supreme Court No.
Appellant-Defendant ) 22S05-0008-CV-481
)
AFFORDABLE PEST CONTROL, INC. )
Appellant-Defendant )
)
v. )
)
TODD EBLING and Cynthia Ebling, ) Court of Appeals No.
individually and as Husband and Wife, ) 22A05-9812-CV-625
and as Parents of CHRISTINA EBLING )
and ALEX EBLING )
Appellees-Plaintiffs )
________________________________________________
INTERLOCUTORY APPEAL FROM THE FLOYD SUPERIOR COURT
The Honorable Richard G. Striegel, Judge
Trial Court Cause No. 22D01-9601-CT-30
________________________________________________
On Petition to Transfer
August 23, 2001
DICKSON, Justice
In this interlocutory appeal, defendants Dow Chemical Company,
Dowelanco n/k/a Dow Agrosciences LLC, Eli Lilly & Company, Rofan Services,
Inc., and Epco, Inc. (herein collectively referred to as Dow); Louisville
Chemical Company, Inc. (LCC); and Affordable Pest Control, Inc.
(Affordable); challenged the denial of their motions for summary judgment
in a damage action brought by plaintiffs Todd and Cynthia Ebling alleging
that their children were injured as a result of exposure to pesticides
manufactured and applied by the defendants. Finding primarily that the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)[1] preempted
the plaintiffs' claims based on failure to warn and failure to disseminate
information to commercial applicators for distribution directly to the
persons whose residences are to be sprayed, the Court of Appeals concluded
that the defendants were entitled to summary judgment as to some, but not
all, of the plaintiffs' claims against each defendant. Dow Chemical Co. v.
Ebeling, 723 N.E.2d 881 (Ind. Ct. App. 2000). In response to the
plaintiffs' request for our review of the FIFRA preemption issue, we
granted transfer and hold that FIFRA does not preempt the plaintiffs'
failure to warn claims against Affordable. In all other respects, we
summarily affirm the Court of Appeals.[2]
The plaintiffs contend that their two young children experienced
respiratory disorders, developmental delays, brain damage, and seizure
disorders as a result of being repeatedly exposed to Dursban 2E and Creal-O
when their apartment was regularly sprayed over an eleven-month period
without being warned of the dangers surrounding the exposure to these
pesticides. A more detailed description of the facts may be found in the
opinion of the Court of Appeals. Id. at 889-90.
Affordable acknowledges that the plaintiffs alleged various theories
of recovery including failure to warn, strict liability, negligence, and
willful/wanton misconduct. Br. of Appellant Affordable Pest Control, Inc.
at 2. Requesting judgment in its favor as a matter of law as to each of
these claims, Affordable filed a motion for summary judgment, which was
denied by the trial court. Upon Affordable's interlocutory appeal from the
denial of its motion for summary judgment, the Court of Appeals concluded
that preemption by FIFRA precluded plaintiffs' claim that Affordable had an
obligation to warn them of the potential adverse effects of Dursban. The
court further held that, because the transaction was predominately for the
sale of a service rather than a product, Affordable was entitled to summary
judgment on the plaintiffs' claims for strict liability under both the
Indiana Products Liability Act and common law strict liability for ultra-
hazardous activity. The Court of Appeals held, however, that summary
judgment was properly denied on the plaintiffs' negligence claim against
Affordable because genuine issues of material fact existed regarding
whether Affordable breached its duty of reasonable care by applying an
excessive amount or concentration, by failing to properly ventilate the
plaintiff's apartment, and by spraying Dursban in an area near the
children's clothes and toys. The court also affirmed the denial of summary
judgment as to the plaintiffs' request for punitive damages against
Affordable. On transfer, the plaintiffs challenge only the FIFRA
preemption issue. The plaintiffs urge that FIFRA does not preempt their
state common law cause of action asserting that Affordable's duty of
reasonable care included an obligation to provide them with the information
contained in the EPA-approved Dursban label.
As to its appellate claim of FIFRA preemption, Affordable argues that
the principles of preemption for failure to warn claims apply to pest
control applicators "just as they do to manufacturers." Br. of Appellant,
Affordable Pest Control, Inc. at 10. Support for this position is found in
Hottinger v. Trugreen Corp., 665 N.E.2d 593 (Ind. Ct. App. 1996), trans.
denied, which affirmed partial summary judgment in favor of a lawn care
company that had applied a chemical subject to FIFRA. In Hottinger, the
Court of Appeals summarily concluded that "FIFRA preempts state common law
strict liability and negligence claims for defective warnings or the
failure to warn of hazards associated with the products subject to
regulation under the Act." Id. at 598. We did not review this
conclusion.[3]
It has been settled since M'Culloch v. Maryland, 17 U.S. (4 Wheat.)
316, 427, 4 L.Ed. 579 (1819), that state law that conflicts with federal
law is "without effect." Maryland v. Louisiana, 451 U.S. 725, 746, 101
S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981). However, as the United States
Supreme Court has explained:
[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," Rice v. Santa Fe Elevator Corp.,
331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947), 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." Ibid.; Hillsborough
Cty., 471 U.S., at 715-716, 105 S.Ct., at 2371; cf. Fort Halifax
Packing Co. v. Coyne, 482 U.S. 1, 22, 107 S.Ct. 2211, 2223, 96 L.Ed.2d
1 (1987).
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 2250, 135
L.Ed.2d 700, 715 (1996). This presumption against preemption is especially
weighty in an area of traditional state responsibility such as health and
safety, the area involved in this case. See id.
The reach of federal preemption was increased with the Supreme
Court's decision in Geier v. American Honda Motor Co., 529 U.S. ---, 120 S.
Ct. 1913, 146 L.Ed.2d 914 (2000). Before Geier, if a federal law had an
express preemption clause, the reach of the preemption was limited to the
domain expressly preempted. Medtronic, 518 U.S. at 485, 116 S. Ct. at
2250, 135 L.Ed.2d at 715. Geier held that even though a state law is not
within the domain expressly preempted, the state law may yet be preempted
if it frustrates the purpose of the federal law or makes compliance with
both impossible. 529 U.S. at ---, 120 S. Ct. at 1919, 146 L.Ed.2d at 924.
A federal statute may now preempt state law "by express language in a
congressional enactment, see, e.g., Cipollone v. Liggett Group, Inc., 505
U.S. 504, 517 (1992), by implication from the depth and breadth of a
congressional scheme that occupies the legislative field, see, e.g.,
Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U.S. 141, 153 (1982),
or by implication because of a conflict with a congressional enactment,
see, e.g., Geier v. American Honda Motor Co., 529 U.S. 861, 869-874
(2000)." Lorillard Tobacco Co. v. Reilly, 533 U.S. ---, 121 S.Ct. 2404,
2414, --- L.Ed.2d ---, --- (2001).
The United States Supreme Court has considered a FIFRA preemption
claim in only one case. In Wisconsin Public Intervenor v. Mortier, 501
U.S. 597, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991), it declined to extend
FIFRA preemption to preclude local regulations requiring a pesticide
applicator to give notice of pesticide use and of any label information
prescribing a safe reentry time, and imposing fines in the event of
violations. After finding that preemption was not required by either the
language of FIFRA or its legislative history, the Court also determined
that there was no implied field preemption and no actual conflict between
FIFRA and the local ordinance. The Court concluded by holding that FIFRA
did not preempt the local governmental regulation of pesticide use. Id. at
616, 111 S.Ct. at 2487, 115 L.Ed2d at 550. Mortier did not, however,
involve an alleged preemption of state tort law, and it predated the
expansion of federal preemption principles in Geier and Lorillard.
In determining the pre-emptive effect of a federal statutory
provision, "[c]ongressional purpose is the 'ultimate touchstone' of our
inquiry." Lorillard, 533 U.S. at ---, 121 S.Ct. at 2414, --- L.Ed.2d at ---
. Both the language of the preemption statute and the statutory framework
surrounding it provide the primary basis for determining Congress' intent.
Medtronic, 518 U.S. at 486, 116 S.Ct. at 2250-51, 135 L.Ed.2d at 716. The
history of FIFRA provides insight into the structure and purpose of the
statute as a whole:
FIFRA was enacted in 1947 to replace the Federal Government's first
effort at pesticide regulation, the Insecticide Act of 1910, 36 Stat.
331. 61 Stat. 163. Like its predecessor, FIFRA as originally adopted
"was primarily a licensing and labeling statute." Ruckelshaus v.
Monsanto Co., 467 U.S. 986, 991 (1984). In 1972, growing environmental
and safety concerns led Congress to undertake a comprehensive revision
of FIFRA through the Federal Environmental Pesticide Control Act. 86
Stat. 973. The 1972 amendments significantly strengthened FIFRA's
registration and labeling standards. 7 U.S.C. [§]136a. To help make
certain that pesticides would be applied in accordance with these
standards, the revisions further insured that FIFRA "regulated the
use, as well as the sale and labeling, of pesticides; regulated
pesticides produced and sold in both intrastate and interstate
commerce; [and] provided for review, cancellation, and suspension of
registration." Ruckelshaus, supra, at 991-992. An additional change
was the grant of increased enforcement authority to the Environmental
Protection Agency (EPA), which had been charged with federal oversight
of pesticides since 1970. See Reorganization Plan No. 3 of 1970, 35
Fed.Reg. 15623 (1970), 5 U.S.C. App. p. 1343. In this fashion, the
1972 amendments "transformed FIFRA from a labeling law into a
comprehensive regulatory statute." 467 U.S. at 991.
Mortier, 501 U.S. at 601, 111 S.Ct. at 2480, 115 L.Ed.2d at 540. In regard
to labeling, FIFRA, in an attempt to ensure some uniformity, contains an
explicit preemption provision that prevents a state from "impos[ing] or
continu[ing] in effect any requirements for labeling or packaging in
addition to or different from those required under this Act [7 U.S.C. §§
136 et seq.]." 7 U.S.C. § 136v(b). As an initial matter, we note
agreement among a majority of jurisdictions that the phrase "any
requirements" in this provision is sufficiently expansive to include both
positive enactments of state law-making bodies and common law duties
enforced in actions for damages.[4]
FIFRA requires all pesticides sold or distributed to be registered
with the Environmental Protection Agency (EPA). 7 U.S.C. § 136a(a). To
register a pesticide, the manufacturer must file information including a
copy of the label, complete formula, directions for use, the purpose of the
pesticide, and, upon request, test descriptions and results. 7 U.S.C. §
136a(c). Then the EPA Administrator shall register the pesticide if the
proper requirements are met, which include an approval of the proposed
label.[5] 7 U.S.C. § 136a(c)(5). FIFRA prohibits the sale or distribution
of pesticides that are misbranded. 7 U.S.C. § 136j(a)(1)(F). A pesticide
with a deficient label is misbranded. See 7 U.S.C. § 136(q). While FIFRA
requires pesticide manufacturers to affix an approved label to their
product in order to sell it, applicators, either commercial or private, are
not required to label anything but, as with members of the general public,
applicators are prohibited from detaching, altering, defacing or destroying
the label affixed to the pesticide by the manufacturer. 7 U.S.C. §
136j(2). The law is fairly settled that when a pesticide manufacturer
"places EPA-approved warnings on the label and packaging of its products,
its duty to warn is satisfied, and the adequate warning issue ends." Papas
v. Upjohn Co., 985 F.2d 516, 519 (11th Cir. 1993). Because of the absence
of an affirmative FIFRA labeling requirement for applicators, however, we
find that the alleged state tort law duty imposed upon applicators to
convey the information in the EPA-approved warnings to persons placed at
risk does not constitute a requirement additional to or different from
those imposed by FIFRA.
We acknowledge that some courts, as cited by Affordable, have
concluded generally that duty to warn claims against applicators are
preempted by FIFRA. See, e.g., Hottinger v. Trugreen Corp., 665 N.E.2d 593
(Ind. Ct. App. 1996), trans. denied; Wadlington v. Miles, Inc., 922 S.W.2d
520 (Tenn. Ct. App. 1995), appeal denied; Bingham v. Terminix, 896 F.Supp.
642 (S.D. Miss. 1995). Because these cases do not specifically consider
the distinctions between pesticide manufacturers and applicators, we
conclude that their findings of preemption are not persuasive as to the
present claims against Affordable. This result is consistent with the
United States Supreme Court's finding in Mortier of no FIFRA preemption of
a local ordinance requiring an applicator of pesticides to notify and
inform persons who might come into contact with the pesticide after
application. 501 U.S. at 606, 111 S.Ct. at 2487, 115 L.Ed.2d at 550.
We also conclude that the plaintiffs' duty to warn claims against
Affordable are not subject to field preemption by implication from the
depth and breadth of the statutory scheme. FIFRA specifically provides for
regulation of pesticides by states, 7 U.S.C. § 136v(a), and the United
States Supreme Court held in Mortier that FIFRA "leaves ample room for
States and localities to supplement federal efforts even absent the express
regulatory authorization of 136v(a).[6]" 501 U.S. at 613, 111 S.Ct. at
2486, 115 L.Ed.2d at 549. As noted above, in Mortier the United States
Supreme Court declined to extend FIFRA preemption to preclude local
regulations requiring a pesticide applicator to give notice of pesticide
use and of any label information prescribing a safe reentry time and
imposing fines in the event of violations. After finding that preemption
was not required by either the language of FIFRA or its legislative
history, the Court also determined that there is no implied field
preemption and no actual conflict between FIFRA and the local ordinance.
The Court concluded by holding that FIFRA did not preempt the local
governmental regulation of pesticide use. Id. at 616, 111 S.Ct. at 2487,
115 L.Ed2d at 550. From Mortier, we discern that, like a state or local
regulatory scheme that requires permits and notice to the non-user
consumer/bystander and imposes penalties, the imposition of a duty to warn
on applicators is not preempted by FIFRA.
We finally consider whether permitting a state tort claim based on
Affordable's alleged failure to communicate label information to persons
placed at risk frustrates the purpose of FIFRA or renders compliance with
both state and federal law impossible, thereby favoring preemption under
the principles of Geier and Lorillard. The Court in Mortier, in finding no
actual conflict between FIFRA and a local use ordinance, stated: "[L]ocal
use permit regulations – unlike labeling or certification – do not fall
within an area that FIFRA’s ‘program’ preempts or even plainly addresses."
Id. at 615, 111 S.Ct. at 2487, 115 L.Ed.2d at 549. Rather than conflicting
with or frustrating the purposes of FIFRA, the opposite is true. The
plaintiffs' claim that Affordable should have communicated the label
information is entirely consistent with the objectives of FIFRA. The use
of state tort law to further the dissemination of label information to
persons at risk clearly facilitates rather than frustrates the objectives
of FIFRA and does not burden Affordable's compliance with FIFRA.
We hold that FIFRA preemption does not apply to preclude the
plaintiffs' action against Affordable for its failure to warn the
plaintiffs by providing them with the FDA-approved label warning
information. The trial court is affirmed in its denial of summary judgment
to Affordable on preemption. In all other respects, the opinion of the
Court of Appeals is summarily affirmed, and this cause is remanded to the
trial court for further proceedings accordingly.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] 7 U.S.C. §§ 136 et seq.
[2] Former Ind.Appellate Rule 11(B)(3). Because this appeal was
initiated before the effective date of the new rules, January 1, 2001, the
former rule applies. This rule is now Rule 58(A).
[3] Although finding FIFRA preemption applicable to some of
Hottinger's claims, the court held that erroneous exclusion of expert
opinion evidence required reversal of the summary judgment as to the
remaining claims. Transfer to this Court was sought only by appellee
Trugreen, whose petition to transfer was denied. To the extent that
Hottinger v. Trugreen Corp. is inconsistent with our opinion herein, it is
overruled.
[4] This conclusion derives from the analogous language found in the
cigarette labeling act construed to include both positive and common law in
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d
407 (1992). A majority of jurisdictions have found "any requirements"
includes common law actions. See, e.g., Andrus v. Agrevo USA Co., 178 F.3d
395, 398 (5th Cir. 1999); Kuiper v. American Cyanamid Co., 131 F.3d 656,
662 (7th Cir. 1997); Grenier v. Vermont Log Buildings, Inc., 96 F.3d 559,
563 (1st Cir. 1996); Taylor AG Industries v. Pure-Gro, 54 F.3d 555, 559
(9th Cir. 1995); Etcheverry v. Tri-Ag Service, Inc., 993 P.2d 366, 367-376
(Cal. 2000); Banks v. ICI Americas, Inc., 450 S.E.2d 671, 676 (Ga. 1994);
Schuver v. E.I. du Pont de Nemours & Co., 546 N.W.2d 610, 613 (Iowa 1996);
Jenkins v. Amchem Produxts, Inc., 886 P.2d 869, 880 (Kan. 1994); Hopkins v.
American Cyanamid Co., 666 So.2d 615, 622 (La. 1996); Hochberg v. Zoecon
Corp., 657 N.E.2d 1263, 1266 (Mass. 1995); Ackles v. Luttrell, 561 N.W.2d
573, 576-80 (Neb. 1997); Lewis v. American Cyanamid Co., 715 A.2d 967, 973
(N.J. 1998); Wadlington v. Miles, Inc., 922 S.W.2d 520, 524 (Tenn. Ct. App.
1995); Eide v. E.I. du Pont de Nemours & Co., 542 N.W. 2d 769, 771-72 (S.D.
1996); Quest Chem. Corp. v. Elam, 898 S.W.2d 819, 820 (Tex. 1995); Hue v.
Farmboy Spray Co., 896 P.2d 682, 691 (Wash. 1995); Gorton v. American
Cyanamid Co., 533 N.W.2d 746, 753 (Wis. 1995). But see, Kimmel, Inc. v.
Dowelanco, --- F.3d --- , 2001 WL 766275 (9th Cir. 2001)(suggesting that
due to recent developments court may revisit meaning of "requirements");
Sleath v. West Mont Home Health Services, Inc., 16 P.3d 1042, 1053 (Mont.
2000)(holding common law causes of action based on failure to warn not
preempted because preemption provision in FIFRA only applies to positive
law); Brown v. Chas. H. Lilly Co., 985 P.2d 846, 853 (Or. Ct. App.
1999)(finding no congressional intent to preempt through FIFRA common law
claims).
[5] The labeling must conform to federal rules concerning type, size,
and placement on the product package. See generally 40 C.F.R. § 156
(2000).
[6] 7 U.S.C. §136v(a) states: "A State may regulate the sale or use
of any federally registered pesticide or device in the State, but only if
and to the extent the regulation does not permit any sale or use prohibited
by this Act [7 U.S.C. §§ 136 et seq.]."