Federal Appeals Court Finds Farmers’ Claims Against Pesticide Maker Not Preempted
The Third Circuit Court of Appeals has allowed claims filed by New Jersey blueberry farmers to proceed against the company that makes a pesticide which allegedly damaged their crops, finding that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not preempt their lawsuit. Indian Brand Farms, Inc. v. Novartis Crop Protection, Inc., No. 08-4484 (3d Cir., decided August 10, 2010).
The company changed its pesticide in 1997, and plaintiffs used it the same way they had successfully used prior products, mixing it with fungicides before applying it to their crops. The company’s marketing brochure for the reformulated product said it was safer and more effective and had the same powerful product performance. The brochure contained no instructions for the product’s use, and the product label did not indicate that one of its inert ingredients was an ionic surfactant nor that it should not be mixed with fungicides. The product containing the surfactant, when mixed with fungicides, allegedly injured or killed the plaintiffs’ blueberry plants.
The district court ruled that FIFRA preempted plaintiffs’ negligent misrepresentation and failure-to-warn claims, because it concluded that marketing brochures qualified as “labeling” under the law. The court also concluded that their design defect claim must be dismissed because the farmers’ practice of mixing the pesticide with a fungicide was not reasonably foreseeable and would have required the company to test its product “in combination with every fungicide for use on all plants.”
The Third Circuit noted that a brochure could constitute “labeling” under FIFRA if it was a written material “accompanying” the product and turned to case law under the Federal Food, Drug, and Cosmetic Act to interpret the term. The court concluded that Congress would not have intended for a marketing brochure to be included within the scope of the term “labeling,” otherwise “all sales and marketing materials would necessarily be included within the scope.” Because all but the first-named plaintiff had proffered prima facie evidence of their reliance on the company’s alleged written misrepresentations in the brochure, their negligent misrepresentation claims were not dismissed.
As to plaintiffs’ failure-to-warn claim, the court stated, “Given that Congress in FIFRA imposed a generalized duty to include in one’s labeling any warning statement necessary to protect plant life and the fact that the EPA has not seen fit to narrow that duty, we find no basis for concluding that New Jersey law imposes a duty to warn different than or in addition to the scope of the requirement imposed by FIFRA.” Thus, the court allowed all plaintiffs to proceed in prosecuting their failure-to-warn claim.
The court found that the record evidence “raised a genuine issue of material fact as to whether the risk of harm to Plaintiffs’ crops was foreseeable, and whether such risk of harm could have been reduced or avoided by a reasonable alternative design, i.e., a pesticide not containing an ionic surfactant.” Accordingly, the court reversed the grant of summary judgment as to the plaintiffs’ design defect claim. A dissenting judge, would have affirmed this part of the district court’s ruling, finding that the plaintiffs did not “carry their burden of demonstrating that their misuse of AG600 was reasonably foreseeable to Novartis.”
