642 NYS2d 761 | N.Y. Sup. Ct. | 1996
OPINION OF THE COURT
background
Plaintiff commenced this action in 1983 seeking damages for personal injuries allegedly sustained at plaintiffs workplace, Rensselaer Polytechnic Institute (R.P.I.), as a result of exposure to pesticides and insecticides from 1988-1990, manufactured or marketed by the named defendants, while working on the cleaning staff in proximity to a pesticide applicator. Plaintiff claims resulting permanent disability since 1991. R.P.I. is not a party to this lawsuit. Plaintiff’s original complaint alleged (1) negligent manufacturing, testing, distribution, promotion and sale of the pesticides and insecticides, and failure to adequately label and warn of dangers; (2) defective design, i.e., products
Defendants jointly moved for summary judgment dismissing the complaint, arguing that most of the allegations in plaintiff s complaint, as supplemented by plaintiff’s responses to the joint interrogatories, essentially allege failure to warn of the dangers of the insecticides which claims defendants contend are preempted by FIFRA and barred by State law (ECL 33-0303 [vesting authority in Commissioner]). Defendants also claimed that plaintiff failed to state a claim that the products are "dangerous”. Defendants’ various defenses and contentions in support of summary judgment will be discussed.
PREEMPTION UNDER FIFRA
FIFRA (7 USC § 136 et seq.) is a comprehensive regulatory scheme which authorizes the EPA to regulate most aspects of
It is now well settled that this preemption provision precludes both State regulation and State common-law claims premised upon the failure to provide adequate warnings (June v Laris, 205 AD2d 166 [3d Dept 1994]; see, Warner v American Flouride Corp., 204 AD2d 1 [2d Dept 1994]; Cipollone v Liggett Group, 505 US 504). Recently, the Ninth Circuit Court of Appeals joined the vast majority of circuit courts (i.e., seven) in similarly concluding that FIFRA’s "any requirement” provision prohibits State regularity / statutory as well as common-law tort claims premised upon a product’s labeling or packaging, guided by the Supreme Court’s Cipollone decision which addressed an equivalent statute (Taylor AG Indus. v Pure-Gro, 54 F3d 555, 560-561 [9th Cir 1995]). Accordingly, in the case sub judice, those portions of plaintiffs amended complaint that raise failure to warn claims premised upon inadequate warnings or labels are preempted under section 136v (b) of FIFRA to the extent they would require additional or different information on the defendant manufacturers’ labels (see, Taylor AG Indus. v Pure-Gro, supra; June v Laris, supra; Warner v American Flouride Co., supra; Cipollone v Liggett Group, supra).
Further, plaintiffs negligent testing claim (in the first cause of action), to the extent it is based upon a failure to warn theory, is preempted because such a claim would "require a showing that [the defendants manufacturers’] [packaging and labeling] should have included additional, or more clearly stated, warnings” (Cipollone v Liggett Group, 505 US, at 524, supra; Warner v American Flouride Co., supra, at 3, 12-13 [dismissing negligence, strict tort liability, and breach of
Plaintiffs fourth cause of action is asserted against the Dow defendants for fraudulent concealment. In essence, plaintiff asserts defendants concealed (1) the lack of research and testing; and (2) the health risks associated with exposure, causing EPA’s continued registration of the chemical products. It is a close question whether FIFRA preempts this claim, i.e., whether it relates to "labeling and packaging” requirements or would impinge upon the EPA’s exclusive authority to determine whether to register a pesticide and, if so, under what circumstances (see, June v Laris, supra, 205 AD2d, at 168 [3d Dept 1994]). To the extent that this fraudulent concealment claim is premised upon defendants’ concealment of information from the EPA in violation of FIFRA, it is preempted, as it is not for a State court to regulate and police compliance with FIFRA procedure (Taylor AG Indus, v Pure-Gro, supra, at 561; Papas v Upjohn Co., 985 F2d 516, 519). To the extent plaintiffs claim is essentially one of inadequate registration procedures or inadequate warnings of the dangers (or unknown nature of damages due to inadequate testing), it is likewise clearly preempted. Insofar as plaintiff’s claim relies upon a State law duty to disclose such facts other than through "labels or advertising”, it would not be preempted (Cipollone v Liggett Group, supra, 505 US, at 527).
To the extent plaintiff’s claims are premised upon defendants’ failure to provide point-of-sale warnings or instructions, they necessarily challenge the adequacy of the labels’ warnings and are preempted (Papas v Upjohn Co., 985 F2d 516, 519, supra [11th Cir 1993], cert denied sub nom. Papas v Zoecon Corp., 510 US 913; Taylor AG Indus, v Pure-Gro, supra, 54 F3d, at 560). Also, any claims that defendants have failed to comply with FIFRA requirements is preempted as the States have no authority to police manufacturers’ compliance with the Federal FIFRA procedures (Papas v Upjohn Co., supra, at 519; Taylor AG Indus, v Pure-Gro, supra, at 561). Plaintiffs claims that EPA procedures are inadequate will not permit avoidance of FIFRA preemption (Taylor AG Indus, v Pure-Gro, supra, at 561).
Regarding plaintiffs express warranty claim against the Dow defendants, the Supreme Court in Cipollone (a plurality) held that a "voluntarily undertaken” contractual obligation is
Plaintiff’s fourth cause of action alleges defendants breached an implied warranty of merchantability and reasonable safety and fitness for their intended purpose. Implied warranties arise under State law and are preempted by FIFRA to the extent the claim depends, directly or indirectly, upon inadequacies in labeling or packaging (Taylor AG Indus, v Pure-Gro, supra, 54 F3d, at 563; Cipollone v Liggett Group, 505 US 504, supra; see also, Papas v Upjohn Co., supra, 985 F2d, at 519-520 [11th Cir]; Warner v American Flouride Co., supra, 204 AD2d, at 13). Further discovery will be required to test the parameters of this cause of action, and thus defendants are denied summary judgment on the fourth claim.
Plaintiff also raises a design defect claim in her first cause of action. The defect alleged is not yet clear, other than general allegations of dangerousness, and in view of the outstanding discovery it would be inappropriate to grant defendants summary judgment on this claim. Plaintiffs defective/negligent design claim is premised upon inadequate research and test
RESPONSIBLE INTERMEDIARY DOCTRINE
The defendants raise the defense on their motion for summary judgment that plaintiff’s claims are barred by the "responsible intermediary doctrine” in that defendants wholesale their chemical products only to companies that reformulate their product into other pesticides, or sell to certified pesticide applicators. The responsible intermediary doctrine has been applied in this State in cases involving prescription drugs to relieve'a drug manufacturer of liability on a theory of a failure to warn the ultimate user of the dangers of the product because a prescribing physician generally is knowledgeable of the dangers of the product and capable of warning and informing the ultimate user, the patient (Wolfgruber v Upjohn Co., 72 AD2d 59 [4th Dept 1979], affd for reasons stated 52 NY2d 768; see also, Billsborrow v Dow Chem., 177 AD2d 7, 15, n). Defendants have not cited and this court has not located any appellate decision in this State extending and applying this doctrine to preclude as a matter of law claims as are pre
Likewise, the related "knowledgeable user” concept relieves a manufacturer of liability on a failure to warn theory where the purchaser/user knows (or has reason to know) of the dangerous propensities of the product independent of the information supplied by the manufacturer/distributor (supra, at 15, n; Rosebrock v General Elec. Co., 236 NY 227). Case law does not establish that that doctrine is to be extended to relieve chemical manufacturers of liability to ultimate purchasers/ users, and there is still a question of fact whether R.P.I. (or its hired certified applicator) is such a knowledgeable user where discovery and depositions have not yet been conducted.
While no appellate decisions are cited (or have been found) on point, there is trial level authority adopting the so-called "bulk supplier doctrine”, holding that bulk suppliers of chemical products have no duty to warn remote parties injured as a result of contact with an altered chemical product, where the chemical supplier lacks control over the ultimate product, based upon impracticality and the nonfeasability of requiring such warnings/duty (Rivers v AT&T Tech., 147 Misc 2d 366 [Sup Ct, NY County]; see, Matera v Worksafe, Sup Ct, NY County, Nov. 30, 1989, Baer, J.). These decisions recognize, however, that the responsible intermediary and related doctrines have not yet been applied to bulk chemical manufacturers, and their analyses do not persuade this court to extend such doctrines, in the absence of appellate authority to do so, to the facts of this case or to grant summary judgment on that basis — particularly at this early stage where substantial discovery is outstanding (see, Bukowski v Coopervision, 185 AD2d 31, 34-35 [3d Dept 1993] [declining to extend or apply as a matter of law the informed intermediary doctrine to optometrist who dispensed contact lenses, and finding question of fact on sufficiency of warnings to optometrist which application of doctrine presupposes]). The Third Department emphasized in Bukowski that "implicit in the application of the doctrine is
STATE LAW PREEMPTION
Defendants submit that plaintiff’s non-failure-to-warn claims are preempted by State law. Specifically, defendants assert that FIFRA preserves the States’ rights to regulate the "sale or use” of Federally registered pesticides (7 USC § 136v [a]), and that New York has enacted its own comprehensive regulatory scheme (see, ECL 33-0303) governing pesticides and vested exclusive jurisdiction in the Commissioner of Environmental Conservation. Defendants claim that this State’s statutory and regulatory scheme preempts plaintiff’s remaining non-failure-to-warn State common-law causes of action.
Defendants have cited no authority to support their implied State preemption claim (and this court has not found any), and in sharp contrast to FIFRA, ECL article 33 contains no express preemption provisions. This court is unable to conclude by implication from (1) FIFRA’s reservation of State rights to regulate the "sale or use” of pesticides within the State, and (2) the State’s vesting of jurisdiction in the Department of Environmental Conservation Commissioner (ECL 33-0303), that State common-law actions are preempted by the State scheme. Indeed, even FIFRA’s express preemption provision does not preempt State actions not based upon a failure to warn / inadequate labeling. To conclude the State scheme impliedly preempts those causes would constitute a vast unprecedented leap, not warranted by the provisions of article 33.
It is true that FIFRA contemplates joint Federal-State control of pesticides, except to the extent preempted by the Federal statute and regulations (see, Weinberg, Practice Commentaries, McKinney’s Cons Laws of NY, Book 171/2, ECL art 33, at 656-657). Consistent therewith, ECL article 33 broadly delegates to the Commissioner power to act against dangerous pesticides, even to ban them outright, by means of legislative rulemaking (ECL 33-0303 [3] [d], [e]); confers exclusive jurisdiction in "all matters pertaining to the distribution, sale, use
