Yowell v. Chevron Chemical Co.

properly motion court determined defen-

dant’s counsel’s decision was reasonable strategy.

trial point Defendant’s last

denied. judgment deny- of the motion court

ing his motion under Rule is af- 29.15

firmed. The court judgment the trial

sentencing imprisonment thirty him to for

years years for ten armed assault and for action, consecutively,

criminal to run and

consecutively judgment sen- with the Jasper County

tence Case Number CR

489-901FX, is affirmed.

SHRUM, MONTGOMERY, J., P.J., and

concur. YOWELL, al.,

Carolyn et White, Turley, D. Ronald J. William Jo- Plaintiffs-Appellants, Williams, Robinson, Rigler, Tur- seph W. Rolla, White, Crump plaintiffs- ley, & for appellants. COMPANY, CHEVRON CHEMICAL Defendant-Respondent. Jones, Casserly, H. May, Fairfax Brian Louis, defen- Brittingham, St. Jones 17605. No. dant-respondent. of Appeals, Missouri Court District, Southern FLANIGAN, Judge. Chief Two. Division death wrongful is an for the This action Jr., 13, Yowell, Septem- of William who died on July 1992. 1985, his use allegedly as result of ber Rehearing Motion to Transfer Orthene, pesticides Malathion and of the Court Denied by defendant Chevron Chem- manufactured Aug. 1992. surviving Company. Plaintiffs are the ical Application to Transfer Denied spouse, parents child and of decedent. Sept. petition was based alternative two-count negligence. theories strict “did not Each count Chevron dangers” adequate warning of the give an pesticides. summary a motion for Chevron filed pesti- ground on the that the two judgment purview the Feder- “are within the cides Act, Insecticide, Fungicide, Rodenticide al (FIFRA), seq. Section 136 et Environ- properly registered with the were Agency.... Plaintiffs’ mental Protection 63 if EPA- liability upon a manufacturer an Federal cause action is warning by jury the to approved is found trial court sustained the motion law.” The of the inadequate to a user judgment against plaintiffs be warn and entered may be appeal. product. The fact that Chevron in Plaintiffs favor Chevron. par- required pay damages injured to brief states: “The chemical Plaintiffs’ products ties who are under a successful Orthene, involved, pesticides Malathion and liability theory upon based a failure by respondent. pesticides are manufactured warning does not adequate regulatory the Both substances are within position in it is place Chevron a where are purview of FIFRA. Both chemicals impossible comply for them to with both registered and in accordance with labeled clearly state and federal law. Chevron provisions ap- of FIFRA and the the require- comply can continue to with the proval of the EPA.” and, at the same ments of federal law point sole is that the trial Plaintiffs’ time, required compensate persons be entering summary judg- in the court erred injured by product. their genuine ment “there is a issue of because follow, reasons which this court For the the material fact to be determined based, plaintiffs’ cause of action holds that adequacy warning concerning the of the here, solely al- argued on as briefed provided by product since a state Chevron labeling, by feder- leged defective is barred pre- liability action is not federal barred 136v(b), 7 al under U.S.C. § seq.” emption under 7 U.S.C. 136 et properly the trial court sustained and that reads, part: pertinent 7 136v in U.S.C. § summary judgment. motion for Chevron’s (a) general holding of this court is based may regulate the sale or use State dicta, language, arguably certain Wis any federally registered pesticide v. consin Public Intervenor State, device in the but and to the U.S. -, 111 S.Ct. permit any the extent does not (1991), holding in and the Arkansas-Platte prohibited by subchapter. sale or use this Rogers, 959 v. Waters & Van Gulf (b) Uniformity Cir.1992), (10th decided F.2d which was Such State shall not or continue supported by Pa after It is also Mortier. any requirements in effect (11th Co., 926 F.2d 1019 pas Upjohn v. packaging addition to or different Cir.1991), pre- pre-Mortier case. Another required subchap- under those this case, opposite reached the Mortier ter. result, v. Chemical is Ferebee Chevron Although plaintiffs’ point speaks gener- (D.C.Cir.1984). Company, ally “adequacy warning,” the of the it is (Federal generally 101 A.L.R. Fed. 887 See clear, by pleadings their in the trial court products common law pre-emption of state here, argument and their brief and pesticides). liability pertaining claims challenge plaintiffs attempting are provides Article VI of Constitution adequacy warnings contained on the the United States “shall that the laws of pesticides. ad- labels of the two Plaintiffs Land; ... supreme Law of be approved the labels mit that were any Thing in the or Laws Constitution Agency. The is- Protection Environmental Contrary to the notwithstand- jury, under in- sue is whether a Missouri VI, Thus, since our ing.” Art. cl. action, per- could structions this tort Maryland, decision in McCulloch v. warnings contained mitted to find that (1819), Wheat, 316, L.Ed. [4 579] respective labels are insufficient. law that con- settled that state has been ef- law is “without flicts with says: Plaintiffs’ brief fect.” FI- if one were to assume that Even —Inc., Group, requiring Cipollone Liggett pre-empts FRA a state from -, 120 L.Ed.2d labeling requirements, this additional (1992). imposing preclude the state does arising adequacy warning

Consideration of issues under contained on an the Supremacy EPA-approved pesticide products Clause in a with the label “start[s] assumption police pow- that the historic common law. action based on ers of not to supersed- authority the States division of existed in federal dis [are] byed Federal Act unless courts ... trict in Missouri. See Fisher v. [is] purpose Congress.” Co., F.Supp. clear and manifest of Chevron Chem. 716 1283 “ purpose (W.D.Mo.1989) Accordingly, Congress (pre-emption); of v. Hurt Dow ‘[t]he ” (E.D.Mo. is pre-emp- Co., F.Supp. the ultimate touchstone’ of Chemical 759 556 1990) analysis. tion (pre-emption); and Riden v. ICI Americas, (W.D.Mo. 763 1500 Congress’ may “explicitly intent 1991)(no pre-emption). Additional citations language im- stated the statute’s or decisions, to federal pre district court all pur- in its plicitly contained structure and Mortier, dating are set forth Chemical pose.” express of In the absence an Ass’n, Specialties v. Allenby, Inc. congressional command, pre- state law is Mfrs. 941, (9th Cir.1992), 958 F.2d 948 and Papas, empted actually if that law conflicts with 1021, supra, at n. 1. law, or if federal so thor- “ oughly occupies legislative field ‘as to FIFRA, Mortier, In held that the Court 7 make reasonable inference that Con- pre-empt seq., U.S.C. 136 et did not § gress sup- left no room for the States to govern- pesticides by local ” (Authorities omitted.) plement it.’ Id. ment. facts in Although the Mortier did adequacy EPA-ap- not involve of an pre-emption exists, applies Where it label, proved dealt with 7 the Court U.S.C. damages to state-court actions. Interna 136v(a) (b), earlier Ouellette, set forth in this Paper tional v. 479 U.S. § Co. 481, opinion. 805, 813, 93 107 S.Ct. L.Ed.2d 883 (1987); Transp. Chicago N. W. Co. v. Kalo here, said, significant the court at As 311, 325-326, Brick 450 Tile U.S. 2486: 1124, 1134, 258, 101 67 L.Ed.2d 270 S.Ct. importantly, More field (1981); Arkansas-Platte, supra, at 161- place, cannot be In the first inferred. 162; 1022, 1024; supra, Taylor at Papas, 136v such infer- itself undercuts § 816, Corp., v. 875 F.2d 822 General Motors immediately ence. provision The follow- (11th Cir.1989). Cipollone See Liggett ing grant regulatory au- statute’s — -, Group, Inc., U.S. supra, thority declares to the States (Part V). 2608,

S.Ct. 120 L.Ed.2d impose not Státe shall contin- “[s]uch said, 824, In at Taylor the court n. 16: requirements ue effect label- ing packaging in addition to or dif- damages state imposition under required under” FI- ferent from those long held to law has been be a form FRA, 136v(b). language This regulation subject the su- § state to pure surplusage would be

premacy clause. As the occupy the entire had intended to explained Diego Building Trades San field Taking such Garmon, 236, pesticide regulation. 359 U.S. Council v. 136v(a) premise, pre-emption as the (1959), “regula- § S.Ct. authority to grant States would thus effectively as exerted tion can be pesticides, use” of regulate the “sale or an award of as through 136v(b) superfluously add while would preventive form of relief. through some the authority not have to compensation States did pay can obligation to regulate “labeling packaging,” an ad- be, designed be, potent is indeed doubly been su- dition that have governing conduct and con- method of historic focus perfluous given FIFRA’s policy.” Id. at 79 S.Ct. at trolling (Emphasis begin with. labeling added.) federal district Prior said, The court courts on the issue whether 7 split 136v(b) challenge 2487: precluded a U.S.C. plain, (D.Mont.1991),

As we have made the statute criticized in Arkansas- expressly does not or impliedly preclude Platte at n. 6. regulatory by political action subdivi- said, AUenby In the court at 944: regard sions with to local use.... weAs long So as additional plain, have also permit made local use required, FIFRA expressly authorizes regulations labeling or certifica- —unlike pesticide regulation. Other than tion—do not fall within an area that FI- labels, regulating states are left free to “program” FRA’s pre-empts or even they whatever restrictions plainly added.) (Emphasis addresses. Consequently, pro- wish. a state could Arkansas-Platte, supra, the court pesticide hibit the sale of a within its agreed Papas, supra, and held that though borders even require could not common law impli- claims are the manufacturer pesticide edly FIFRA, 7 U.S.C. change the label. 136v(b). The court discussed § principal pre-Mortier Ferebee is the case quoted and most of language by plaintiffs. relied on agrees This court Mortier set forth above. At 163 the court following with the comments in contained said: Arkansas-Platte at 161-162: Thus, Court reasoned distinguished Ferebee between the “di occupied had not the entire rect” injunction against the states’ im pesticide regulation, field of instead leav posing labeling requirements and re ing intact the police pow state’s historic quirements might imposed regional ers to consider and local factors through state common law. Id. The regulating in indicated, use. The Court court reasoned the EPA’s determination however, Congress impliedly had adequate Chevron’s label was “for preempted regulation in the more purposes compel jury FIFRA does not narrow area of labeling. While the hold to find adequate that the label is also for ing of regula Mortier is confined to the law_” purposes state tort Fere pesticides by tion of governments, local bee, (emphasis 736 F.2d at 1540 in Fere- id. 111 S.Ct. at [— at -] bee). Ferebee further stated: we are nevertheless inclined to adopt its The verdict itself does not command construction of (Emphasis FIFRA. in Chevron to alter its label—the verdict original.) merely that, tells Chevron if it chooses

At 160 the plain court said: “A reading of selling paraquat Mary- to continue in the statute indicates an intent to maintain land, may it compensate have to for police powers the traditional of the states resulting injuries. some of the That in general grant ‘regu- of authority to in some sense a burden on late the pesticides, 136v(a), sale or use’ of § paraquat Maryland, the sale of in but specific and a more occupy intent to equivalent regula- is not to a direct labeling 136v(b).” field in and packaging, § tory change command that Chevron its 136v(b)

That construction sup- is label.... ported by Congress, the fact that Ferebee, 736 F.2d at 1541. provision amended that cap- insert the accept We do not this “choice of reac “Uniformity.” tion analysis. tion” choice business be paying damages changing tween and post-Mortier Other cases consistent with label is notional. As the First Cir holding in Arkansas-Platte are Chemi Group, cuit stated in v. Liggett Palmer Specialties Ass’n, cal Inc. v. Allen Mfrs. (1st Cir.1987): by, supra, 944; 958 F.2d at Young Cyanamid F.Supp. American Once a has found a label inade- (E.D.Ark.1991), law, quate Worm v. American under state and the manu- (1991 Cyanamid Company WL 144328 negli- facturer liable for (D.Md.). Contra, it, gently employing Montana Pole & Treat it is unthinkable Laucks, ing Plant v. I.F. manufacturer im- would not labeling the claim based on mediately steps take to minimize addition to exposure liability. appeals to continued failure The court of held to warn. change most obvious it can take ... summary entitled to that defendants were change its label. labeling judgment on the claims based on for fur- at 627-28. This choice cannot and failure to warn but remanded Id. preclusion of proceedings respect consistent with FIPRA’s to the other ther with requirements pack- “any claims. state tort different from” aging addition court, plaintiffs In this do not assert that statutory mandate. they any claims for tort have 136v(b). claim pre-empted other than the Chevron following agrees This court also with reply brief inadequate labeling. Plaintiff’s at 164: language Arkansas-Platte this court states: We therefore hold state tort actions upon Plaintiffs’ action was based Chev- failure based adequate ron’s failure to impliedly preempted by FIFRA are warn dangers of its chemical warning of the byis a matter of law. This virtue as Both products, Malathion and Orthene. uni- posed direct conflict approved EPA labels in products bore pesticides, and be- form with FIFRA. Plaintiffs as- accordance Congress intended cause we believe approved those EPA labels do sert that reg- pesticide labeling occupy the field of adequate warning of the not the holding our on ulation. We base prod- dangers under Missouri chemicals’ 136v, the rejection of language of our liability doctrines. ucts of reaction” court’s “choice Ferebee should judgment that the It follows understanding of the analysis, and our with re- than affirmed affirmed rather of FIFRA Supreme Court’s construction mand. in Mortier. judgment is affirmed. following agrees the This court also with language Papas 1026: J., MONTGOMERY, concurs. damages in a jury’s imposition of premised on tort suit state P.J., SHRUM, and files dissents by disrupt the methods claims would dissenting opinion. man and the envi- protects FIFRA dissenting. Judge, SHRUM, Presiding inject irrele- it ronment because would the EPA’s evalu- considerations into vant respectfully dissent. its pesticide of a ation the United States When guess the EPA’s conclu- second “with the it starts pre-emption, considers sions. powers police assumption that the historic law ac- Allowing common tort state superseded by not to be the States were per- labeling claims would tions based on the clear Act unless that was the Federal state juries do what state court mit Congress.” purpose of Wis and manifest administrative and state legislatures Public Intervenor consin v. — re- forbidden to do: agencies are 2482, -, 111 S.Ct. U.S. labeling pesticides. quirements (1991). recently Most Ci L.Ed.2d —Inc., Group, U.S. Liggett pollone v. impliedly (1992) FIFRA hold that -, We 112 S.Ct. suits common preempts state said: Supreme Court EPA-reg- against manufacturers provisions [pre- (W)e construe these must such pesticides to extent that istered advertising cigarette emptive provision in inadequate are on claims based actions presumption light legislation] original.) labeling. (Emphasis in police of state against pre-emption presumption re- This Arkansas-Platte, power regulations. plaintiff had a narrow appropriateness of inforces against the defendant tort claims state reading of pre-emptive provi- simplest explanation and most [the obvious (T)here general, .... is no inherent statutory sion] for such Congress silence is that conflict between pre-emption federal of never displace intended to state common warning requirements state and the con- so, If law claims. it had intended to do vitality tinued of state common law dam- simply could have said so unambigu- and in ages actions. language. By finding ous pre-emp- majority tion in this case the eliminates concurring In a portion separate of his component critical of Missouri’s traditional opinion in Cipollone, Justice Blackmun fur- ability protect safety the health and explained ther presumption against pre- forget, citizens. Lest we the fundamen- emption as follows: premise tal products of Missouri The principles of respect federalism and law, as announced in Dayton Keener v. sovereignty that underlie the Electric Manufacturing Company, Court’s reluctance preemption to find (Mo. 1969) S.W.2d banc is that Congress where has spoken directly injuries “the costs of resulting from defec- to the issue apply equal force where products tive are borne the man- [to be] Congress spoken, though has ambiguous- put ufacturers products ... such ly. cases, In such question is not the market injured rather than per- Congress whether intended pre-empt powerless sons who are protect them- regulation, but to what extent. We selves.” I readjust- believe that the radical not, do unambiguous evidence, absent in- ment of federal-state relations in this area scope fer a beyond that is warranted if there is clear evidence clearly which is mandated Congress intended that result. Be- language. cause I believe that 7 seq. U.S.C. 136 et 112 S.Ct. at 2625. And in (1982) (FIFRA) does not evidence such a Bethlehem Steel Co. v. New York State intent, congressional clear respectfully I Bd., Labor Relations 330 U.S. dissent. 1026, 1033, S.Ct. (1947), 91 L.Ed. 1234 Jus majority primarily tice relies Jackson on Arkan- observed: sas-Platte Rog- v. Van Waters & Gulf can, Congress Since chooses, if entirely ers, (10th Cir.1992), 959 F.2d 158 which displace the States to the full extent of held that “state tort actions based on label- far-reaching the Clause, Commerce Con- ing and impli- failure to warn are gress help needs no generous judi- edly preempted by FIFRA as a matter of implications cial superses- achieve the law.” Id. at 164. The Arkansas-Platte sion of authority_ State Any indul- finding upon court based its “plain its read- gence in construction should be in favor ing of the “spe- statute” which revealed a States, of the because can cific occupy intent to the field in speak with drastic clarity whenever it 136v(b),” packaging, and Id. at and § chooses to assure full authority, upon obiter dicta in Mortier that “Con- completely displacing the States. gress impliedly preempted had regu- state Here pre-emption clause, the FIFRA 7 lation in the more narrow area of label- 136v(b), only provides § ing." 959 F.2d at 163. states “shall or continue in ef- My plain statute, reading my fect ex- requirements pack- for aging in amination of Mortier1 in addition to or different from” requirements imposed long-standing those reaffirmed the presumption FIFRA. No 136v(b) against reference is made in pre-emption, my to the reading and preemption of state common law remedies. Cipollone in which the Court extended the Court, 1. Mortier dealt pesti- with a local requires said: "This case us to consid- licensing application by cide and a small com- regula- er pre-empts whether [FIFRA] ... White, munity in writing Wisconsin. Justice exposure of presumption against pre-emption2 may me review aid in the leads under dangers pesticides. to conclude that Arkansas-Platte was new associated I wrongly there is decided. believe ambi- may of this lead Successful actions sort scope guity concerning the of 7 U.S.C. petition EPA to allow manufacturers 136v(b); I accordingly Cipollone feel products; labelling more detailed of their compels holding ambiguity a that the must alternatively, may EPA decide that itself preserving in favor of be resolved light required revised labels are e.g. by finding that common power, a law brought new that has been information legisla- is not tort action through its common law attention tion. suits. expressed I persuaded by am the views 736 F.2d at 1541. in, example, v. Ferebee Chevron Chem opinion points Pole out The Montana (D.C.Cir.1984), Co., ical alternative that the Ferebee court relied on Treating Montana Pole & Plant I.F. “1) Compliance rationales for its decision: (D.Mont. F.Supp. Laucks & cannot be with both federal state law 1991). noted, As the Ferebee court impossible the defendant said to be because “The of FIFRA and those purposes petition can the EPA to allow the label may quite distinct. FI- state tort law be 2) com comprehensive; more that, ensuring FRA from a cost- aims at not serve as an mon view, point product] as benefit [the accomplishment of FIFRA’s obstacle to produce labelled does not “unreasonable n. 7. at 1344 purpose.” on the environment.” adverse effects Jus rationales are sound. As believe both contrast, law, may have State tort Cipollone, tice Blackmun said goals; compensatory conceiva- broader 2627-28: bly, inadequate label under label, if sufficient state law that while on a tort law manufac effect of standard, none- under cost-benefit necessarily indirect. turer's behavior signifi- against any fails theless to warn damages by its Although an award of addition, cant even the ulti- risk. conse very attaches additional nature law in purposes mate of federal and state continued to the manufacturer’s quences same, (acting a state this area are conduct, particular no course unlawful may assign through jurors) distinct adoption of newa warn (e.g., action weight go to elements which into label) required. manufacturer ing determining as whether a substance la- on, example, a failure-to- found liable as to is of sufficient net benefit belled respond in a number may warn claim may warrant its use.... [A] damages may accept ways. It decide to heavily in tip to more choose the scales doing a cost of business awards as citizens than favor of the health of its way ... Or its behavior not alter by FIFRA. permitted EPA is fu contrast, may to avoid choose by warnings dispensing at F.2d 1540. ture awards 736 mecha through variety of alternative a Moreover, recovery in a case such inserts, nisms, public package such as promote legitimate as this one also edu general or advertisements service encouraging plain- regulatory By aims. of choice programs. The level injuries previ- cational not bring tiffs to suit for shaping its a defendant retains pesti- that ously traceable to recognized as distinguishes the indirect of the kind own behavior a tort action cides ... first, novelty is combined with pesticides governments. second local We tion of hold says extraordinary: that The statute it does not.” result is that say every pre-emption must anything about Cipollone Justice Scalia is In dissent in his 2. exactitude, great thing; do so with and it must against as of the new rule critical expressed concerning scope any ambiguity will as Quoting by majority in that case. power.” preserving state read favor knowledge, my we have nev "To Justice Scalia: 112 S.Ct. at expressed When this a rule before.... er such

69 regulatory effect of the common law considerations into the EPA’s evaluation of positive from enactments such as stat Id. pesticide a and its ...” utes and regulations.... administrative skeptical 1026. I am the EPA would even Moreover, tort law has entirely sepa awards; jury consider I agency doubt the rate compensating victims— “disrupted” by would Certainly, them. function — apart that sets it from direct forms of pesticides generated new information about regulation. See Ferebee v. Chevron as a litigation result of common law would Co., Chemical U.S.App.D.C. 164, disruptive not be “irrelevant” that 1529, 1540, denied, F.2d cert. ability information enhanced the EPA’s 469 U.S. 1062 83 L.Ed.2d [105 ability protect manufacturer’s man (1984). 432] expressed and the environment. The fear in Payas jury that a award would amount In Supreme several recent cases the to a guess” “second of the EPA’s conclu Court regulatory has declined to find the sions is not contrary, well-founded. On the effects of state tort law so substantial and I that believe some common-sense “second See, direct as to warrant pre-emption. e.g. guessing” by of twelve Missouri English v. General Electric 496 U.S. citizens would not hinder the EPA in its 72, 84, 2270, 2278, 110 S.Ct. legitimate mission help but would insure (1990); Goodyear Miller, Corp. Atomic the compensatory goal of state tort 174, 185, 1704, 1712, 486 U.S. 108 S.Ct. law remains intact. (1988); L.Ed.2d 158 Silkwood v. Kerr-McGee rp., Co 238, 256, 464 U.S. 104 S.Ct. Finally, I agree Judge Whipple’s 615, 625, (1984). 78 L.Ed.2d light Riden, concluding remarks in recognized distinctions at 1509: between direct state FIFRA’s scheme was created regulatory indirect effects of common- help minimize the risks attendant damages, agree cannot pesticide by seeing pesti- use to it that all clearly claims are or unambiguously “re cide labels contain certain essential infor- quirements” imposed under state law. The mation. The scheme not was created to plain language 136v(a) (b) of 7 U.S.C. revising dissuade manufacturers not, does in my opinion, bear the broad sug- their labels when new information interpretation majority impart gests warnings that further or instruc- it. tions are needed. I would further observe that we should I would hold that Missouri common law proceed upon the presumption that the theory claims based on failure to warn Americas, EPA is infallible. Riden v. ICI are not FIFRA because the 763 F.Supp. (W.D.Mo. legislation at issue here does not 1991). “Its method registering pesti unambiguous the kind of evidence good cides is as as the data submitted congressional necessary intent to dis- registrant registration in its state place damage Missouri’s common law Id. ment.” at 1508-09. The fact that here Accordingly, claims. I would reverse and Yowell, it is that William Jr. died as proceedings. remand for further exposure a result of pesticides to the Mala thion and question Orthene calls into

adequacy each, of the label on despite the approval

EPA’s warnings. labels and

Id. Payas disagree with the observation in Upjohn (11th Cir.

1991), cited the majority, that a “disrupt

award would the methods protects

which FIFRA man and the envi

ronment because it inject irrelevant

Case Details

Case Name: Yowell v. Chevron Chemical Co.

Court Name: Missouri Court of Appeals

Date Published: Jul 13, 1992

Citation: 836 S.W.2d 62

Docket Number: 17605

Court Abbreviation: Mo. Ct. App.