Ansagay v. Dow Agrosciences LLC
ORDER DENYING MOTION FOR SUMMARY JUDGMENT re 16 - Signed by JUDGE SUSAN OKI MOLLWAY on 12/29/2015. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
NENA ANSAGAY, et al.,
DOW AGROSCIENCES LLC; VAN
WATERS & ROGERS CORPORATION,
CIVIL NO. 15-00184 SOM/RLP
ORDER DENYING MOTION FOR
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
Before the court is Defendant Dow Agrosciences LLC’s
Motion for Summary Judgment against Plaintiffs.
Ansagay brought a suit individually; on behalf of the estate of
her deceased husband, Benjamin O.K. Ansagay; and on behalf of
their minor child, in connection with the death of Benjamin
Ansagay, which Nena Ansagay attributes to his contact with
Dursban TC, a pesticide manufactured by Dow.
Dow contends that
all the state-law claims are preempted under the Federal
Insecticide, Fungicide, and Rodenticide Act (“FIFRA”).
For the reasons discussed below, the court denies Dow’s
Dow developed, manufactured, marketed, and distributed
an insecticide called “Dursban TC,” which has as an active
ingredient the chemical chlorpyrifos.
See ECF No. 17-1, PageID #
In 1981, Dow registered Dursban TC with the United
States Environmental Protection Agency, pursuant to FIFRA.
ECF No. 16-1, PageID # 170.
FIFRA is a comprehensive regulatory
statute regulating the use, sale, and labeling of pesticides.
See 7 U.S.C. § 136 et seq.
FIFRA requires a manufacturer seeking
to market a pesticide to first petition the EPA for registration.
As part of the petition process, the manufacturer must submit
data about the pesticide, as well as a proposed label.
U.S.C. § 136a(c)(1)(C), (F).
Dursban TC was sold with an EPA-approved product label
that included the following words:
“WARNING,” “MAY BE FATAL IF
SWALLOWED,” and “EXCESSIVE ABSORPTION THROUGH SKIN MAY BE FATAL.”
See ECF No. 17-3, PageID #s 207-08.
The label instructed users
to observe the following handling procedures for safety:
Wear protective clothing when using or
handling this product to help avoid exposure
to eyes and skin. As a minimum, chemical
workers’ goggles, neoprene or natural rubber
gloves and footwear, a long-sleeved shirt and
long-legged pants or coveralls are
recommended. To avoid breathing spray mist
during application in confined areas, wear a
mask or respirator of a type recommended by
[the National Institute for Occupational
Safety and Health] for filtering spray mists
and organic vapors.
The label also included a “Warranty Limitations and
Disclaimer” section that said, “[T]his product conforms to the
chemical description on the label and is reasonably fit for the
purposes stated on the label when used in strict accordance with
the directions therein under normal conditions of use.”
PageID #s 209-10.
From 1988 to 1991, Mr. Ansagay, a pesticide applicator
for XTermco, Inc., used Dursban TC on an almost daily basis.
ECF No. 32, PageID # 809.
Before his death, he admitted that he
had not worn a respirator when applying Dursban TC,
notwithstanding the instruction on the safety procedures on its
See ECF No. 24, PageID # 536.
According to Mr. Ansagay’s
deposition testimony in a related worker’s compensation case
against XTermco, he did not believe he needed to wear a
respirator because he had been told by the distributors of
Dursban TC that the pesticide was safe for humans and would
“flush out” of his body within a week.
One of Mr.
Ansagay’s co-workers corroborated this statement, testifying that
“representatives that sold Dursban TC to XTermco, Inc., told me
and other ground treatment workers, that Dursban was safe to use
because if it got in your system it would flush out of your
system within one week.”
ECF No. 20-3, PageID # 423.
distributors that allegedly sold Dursban TC to XTermco were
Defendant Van Waters & Rogers Corporation and Brewer
See ECF No. 20-2, PageID # 421.
Ansagay alleges that Dow intended that sellers like Van Waters,
and users like Mr. Ansagay, would rely on claims Dow published
stating that Dursban TC was safe.
See ECF No. 32, PageID #s 809-
Mrs. Ansagay alleges that Mr. Ansagay began to suffer
from an assortment of health problems after his employment with
From 1999 to 2011, Mr. Ansagay was treated for
See id., PageID # 811.
During this time, Mr.
Ansagay was also diagnosed with hypogonadism and male
infertility, which was originally attributed to a genetic
In 2011, Mr. Ansagay learned that he had
contracted lung cancer.
On November 21, 2013, Mr. Ansagay filed a worker’s
compensation claim against XTermco that ended with XTermco’s
insurer accepting liability.
See id., PageID # 812.
died on August 15, 2014, from lung cancer.
See id., PageID #
On April 2, 2015, Mrs. Ansagay, on behalf of herself,
Mr. Ansagay’s estate, and their minor child, instituted a civil
action against Dow in the Circuit Court of the First Circuit,
State of Hawaii, Civil No. 15-1-0602-04.
See ECF No. 1-1, PageID
On May 18, 2015, Dow removed the action to this court.
See ECF No. 1.
In her Complaint, Mrs. Ansagay alleges that Mr.
Ansagay’s exposure to Dursban TC resulted in his infertility,
depression, hypogonadism, lung cancer, and death.
32, PageID # 806.
See ECF No.
The Complaint asserts claims against Dow for:
(1) wrongful death; (2) negligence that caused Mr. Ansagay’s
cancer; (3) negligence that caused Mr. Ansagay’s infertility and
depression; (4) breach of express warranties; (5) breach of
implied warranty; (6) strict product liability; (7) defective
design, testing, and/or manufacturing; (8) negligent infliction
of emotional distress; and (9) intentional infliction of
See id., PageID #s 816-21.1
STANDARD OF REVIEW.
Summary judgment shall be granted when “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a) (2010).
See Addisu v. Fred Meyer, Inc., 198
F.3d 1130, 1134 (9th Cir. 2000).
A movant must support his
position that a material fact is or is not genuinely disputed by
either “citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
During the pendency of this motion, Mrs. Ansagay amended
the Complaint by identifying Van Waters as one of the Doe
Defendants. See ECF No. 32. Because the First Amended Complaint
is identical to the original Complaint in all other respects,
compare ECF No. 1-1, with ECF No. 32, the amendment does not
affect the disposition of this motion.
those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials”; or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c).
One of the principal purposes of summary judgment is to identify
and dispose of factually unsupported claims and defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
judgment must be granted against a party that fails to
demonstrate facts to establish what will be an essential element
See id. at 323.
A moving party without the ultimate
burden of persuasion at trial—usually, but not always, the
defendant—has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102
(9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court those “portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.,
477 U.S. at 323).
“When the moving party has carried its burden
under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (footnote omitted).
The nonmoving party must set forth specific facts
showing that there is a genuine issue for trial.
Serv., Inc., 809 F.2d at 630.
At least some “‘significant
probative evidence tending to support the complaint’” must be
Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv.
Co., 391 U.S. 253, 290 (1968)).
See Addisu, 198 F.3d at 1134 (“A
scintilla of evidence or evidence that is merely colorable or not
significantly probative does not present a genuine issue of
“[I]f the factual context makes the non-moving
party’s claim implausible, that party must come forward with more
persuasive evidence than would otherwise be necessary to show
that there is a genuine issue for trial.”
Cal. Arch’l Bldg.
Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at
Accord Addisu, 198 F.3d at 1134 (“There must be enough
doubt for a ‘reasonable trier of fact’ to find for plaintiffs in
order to defeat the summary judgment motion.”).
All evidence and inferences must be construed in the
light most favorable to the nonmoving party.
Inc., 809 F.2d at 631.
T.W. Elec. Serv.,
Inferences may be drawn from underlying
facts not in dispute, as well as from disputed facts that the
judge is required to resolve in favor of the nonmoving party.
When “direct evidence” produced by the moving party
conflicts with “direct evidence” produced by the party opposing
summary judgment, “the judge must assume the truth of the
evidence set forth by the nonmoving party with respect to that
Dow’s motion contends that Mrs. Ansagay’s tort claims
are all preempted under FIFRA because it would be impossible for
Dow to comply with both FIFRA and the state-law duties that Mrs.
Ansagay seeks to impose.
See ECF No. 16, PageID # 161.
FIFRA does not preempt Mrs. Ansagay’s claims.
Preemption derives from the Supremacy Clause in the
United States Constitution, which provides:
This Constitution, and the Laws of the United
States which shall be made in Pursuance
thereof; and all Treaties made, or which
shall be made, under the Authority of the
United States, shall be the supreme Law of
the Land; and the Judges in every State shall
be bound thereby, any Thing in the
Constitution or Laws of any State to the
U.S. Const. art. VI, cl. 2.
The United States Supreme Court has noted two
cornerstones of preemption jurisprudence.
U.S. 555 (2009).
Wyeth v. Levine, 555
First, “the purpose of Congress is the ultimate
touchstone in every pre-emption case.”
Id. at 565 (quoting
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (internal
quotation marks omitted)).
Second, preemption analysis begins
with the “presumption that Congress does not intend to supplant
De Buono v. NYSA-ILA Med. & Clinical Servs. Fund,
520 U.S. 806, 813 (1997); see also Tillison v. Gregoire, 424 F.3d
1093, 1098 (9th Cir. 2005).
In analyzing preemption, a court
must keep in mind 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.”
City of Columbus v.
Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 426 (2002)
(quotation marks and brackets omitted).
confronted with two plausible interpretations of a statute “have
a duty to accept the reading that disfavors pre-emption.”
see also Wyeth, 555 U.S. at 565; Cipollone v. Liggett Group,
Inc., 505 U.S. 504, 518 (1992).
State law may be preempted by federal law in three
(1) express preemption, which exists when Congress has
explicitly defined the extent to which its enactments preempt
state law; (2) implied field preemption, which exists when state
law attempts to regulate conduct in a field that Congress
intended federal law to occupy exclusively; and (3) implied
conflict preemption, which exists when state law stands as an
obstacle to the accomplishment and execution of the full purpose
and objectives Congress had, or when compliance with both state
and federal requirements is impossible.
See Indus. Truck Ass’n,
Inc. v. Henry, 125 F.3d 1305, 1309 (9th Cir. 1997) (citing
English v. Gen. Elec. Co., 496 U.S. 72, 78–80 (1990)); accord
Whistler Invs., Inc. v. Depository Trust & Clearing Corp., 539
F.3d 1159, 1164 (9th Cir. 2008) (“Congress has the constitutional
power to preempt state law, and may do so either expressly-through clear statutory language--or implicitly.” (citations
With respect to each type of preemption,
“Congressional intent to preempt state law must be clear and
Indus. Truck Ass’n, 125 F.3d at 1309.
When, as happens here, Congress has included an express
preemption clause in the applicable federal statute, the court
must look to the text of that provision to determine the scope of
See Lohr, 518 U.S. at 484-85.
When Congress has considered the issue of
pre-emption and has included in the enacted
legislation a provision explicitly addressing
that issue, and when that provision provides
a “reliable indicium of congressional intent
with respect to state authority,” “there is
no need to infer congressional intent to
pre-empt state laws from the substantive
provisions” of the legislation. Such
reasoning is a variant of the familiar
principle of expression unius est exclusio
alterius: Congress’ enactment of a provision
defining the pre-emptive reach of a statute
implies that matters beyond that reach are
Cipollone, 505 U.S. at 517.
In discerning the proper scope of an
express preemption provision, courts “focus on the plain wording
of the clause, which necessarily contains the best evidence of
Congress’ pre-emptive intent.”
CSX Transp., Inc. v. Easterwood,
507 U.S. 658, 664 (1993).
The Federal Insecticide, Fungicide, and
Under FIFRA, a pesticide may not be sold in the United
States unless it is first registered with the EPA.
earlier in this order, the petition for registration must include
data about the pesticide, as well as a proposed label.
U.S.C. § 136a(c)(1)(C), (F).
FIFRA defines “label” as “the written, printed, or
graphic matter on, or attached to, the pesticide or device or any
of its containers or wrappers.”
7 U.S.C. § 136(p)(1).
all labels and all other written, printed, or
graphic matter-(A) accompanying the pesticide or device at
any time; or
(B) to which reference is made on the label
or in literature accompanying the pesticide
or device, except to current official
publications of the Environmental Protection
Agency, the United States Departments of
Agriculture and Interior, the Department of
Health and Human Services, State experiment
stations, State agricultural colleges, and
other similar Federal or State institutions
or agencies authorized by law to conduct
research in the field of pesticides.
7 U.S.C. § 136(p)(2).
The EPA “will register the pesticide if it determines
that the pesticide is efficacious . . . , § 136a(c)(5)(A); that
it will not cause unreasonable adverse effects on humans and the
environment, §§ 136a(c)(5)(C), (D); § 136(bb); and that its label
complies with the statute’s prohibition on misbranding,
§ 136a(c)(5)(B); 40 CFR § 152.112(f) (2004).”
Agrosciences LLC, 544 U.S. 431, 438 (2005).
Bates v. Dow
adverse effects on the environment means any unreasonable risk to
man or the environment, taking into account the economic, social,
and environmental costs and benefits of the use of any
40 C.F.R. § 166.3.
“A pesticide is ‘misbranded’ if
its label contains a statement that is ‘false or misleading in
Bates, 544 U.S. at 438 (quoting 7 U.S.C.
§ 136(q)(1)(A); 40 CFR § 156.10(a)(5)(ii)).
“A pesticide is also
misbranded if its label does not contain adequate instructions
for use, or if its label omits necessary warnings or cautionary
Bates, 544 U.S. at 438 (citing 7 U.S.C.
§§ 136(q)(1)(F), (G)).
FIFRA has an express preemption section (“Authority of
States”) that provides in relevant part:
(a) In general
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 subchapter.
Such State shall not impose or continue in
effect any requirements for labeling or
packaging in addition to or different from
those required under this subchapter.
7 U.S.C. § 136v.
Mrs. Ansagay argues that Bates v. Dow Agrosciences LLC,
544 U.S. 431 (2005), controls the present case insofar as it
addressed FIFRA’s preemptive effect on state-law claims.
No. 24, PageID #s 537-41.
Dow counters that this court’s
analysis should instead be guided by Mutual Pharmaceutical Co.,
Inc. v. Bartlett, 133 S. Ct. 2466 (2013), and Pliva, Inc. v.
Mensing, 131 S. Ct. 2567 (2011)–-two cases that involved
preemption under the Federal Food, Drug, and Cosmetic Act
See ECF No. 16-1, PageID #s 187-95.
§ 301 et seq.
See 21 U.S.C.
This court reads Bates as squarely on point.
In Bates, Texas peanut farmers filed suit against Dow
as the distributor of a weed killer called “Strongarm,” alleging
that the pesticide had severely damaged their crops.
544 U.S. at
The plaintiffs alleged that, although the label stated
that Strongarm was “recommended in all areas where peanuts are
grown,” Dow knew or should have known that Strongarm was unsafe
for crops grown in soil with pH levels of 7.0 or greater.
Claims were asserted by the plaintiffs for strict liability,
negligence, fraud, breach of warranty, and violation of the Texas
Deceptive Trade Practices–Consumer Protection Act.
contended that the claims were preempted by FIFRA.
The district court agreed with Dow and held that FIFRA
preempted every claim, except for one that was preempted on
Id. at 436.
The Fifth Circuit affirmed,
reasoning that “FIFRA preempts state laws that either directly or
indirectly impose different labeling requirements,” and that the
farmers’ claims were expressly preempted under § 136v(b) because
a judgment against Dow would have induced Dow to alter its
Dow Agrosciences LLC v. Bates, 332 F.3d 323, 331-
33 (5th Cir. 2003), vacated and remanded, 544 U.S. 431 (2005).
The Supreme Court reversed, holding that FIFRA did not preempt
the plaintiffs’ claims for defective design, defective
manufacture, negligent testing, breach of express warranty, or
violation of the Texas Deceptive Trade Practices–Consumer
Bates, 544 U.S. at 444.
In reaching its decision, the Bates Court observed that
FIFRA’s express preemption provision, § 136v, indicates that “the
statute authorizes a relatively decentralized scheme that
preserves a broad role for state regulation.”
Id. at 450
FIFRA authorizes states to “ban or restrict
the uses of pesticides that EPA has approved; they may also
register, subject to certain restrictions, pesticides for uses
beyond those approved by EPA.”
Id. (citations omitted).
this statutory scheme, the Court noted:
Section 136v(b) retains a narrow, but still
important, role. In the main, it pre-empts
competing state labeling standards–-imagine
50 different labeling regimes prescribing the
color, font size, and wording of warnings–that would create significant inefficiencies
for manufacturers. The provision also
pre-empts any statutory or common-law rule
that would impose a labeling requirement that
diverges from those set out in FIFRA and its
implementing regulations. It does not,
however, pre-empt any state rules that are
fully consistent with federal requirements.
Id. at 452.
That is, the Bates Court read FIFRA and its express
preemption provision as seeking to impose uniformity of labeling
throughout the states, but without undermining the states’
historic ability to otherwise regulate the sale and use of
pesticides within their borders through statutes, regulations,
and common law.
The Court in Bates also articulated a two-part test to
determine whether a claim was preempted by FIFRA:
must be a requirement ‘for labeling or packaging’; rules
governing the design of a product, for example, are not
Second, it must impose a labeling or packaging
requirement that is ‘in addition to or different from those
required under this subchapter.’”
Id. at 444.
recognized that, while preempting state laws that impose a
“requirement” for labeling or packaging in addition to or
different from what is required under FIFRA, § 136v(b) never
The Court instructed that an “occurrence
that merely motivates an optional decision does not qualify as a
requirement” for the purpose of the above FIFRA preemption test.
Id. at 443.
Thus, for example, events “such as a jury verdict,
that might ‘induce’ a pesticide manufacturer to change its label”
should not be viewed as “requirements.”
Turning to the individual claims, the Court first held
that claims for defective design, defective manufacture,
negligent testing, and breach of express warranty were not
preempted because none required Dow to label its products in any
The Court explained, “Rules that require
manufacturers to design reasonably safe products, to use due care
in conducting appropriate testing of their products, to market
products free of manufacturing defects, and to honor their
express warranties or other contractual commitments plainly do
not qualify as requirements for ‘labeling or packaging.’”
The breach of warranty claim, the Court explained, also
was not preempted because a warranty claim does not impose a
requirement “for labeling or packaging,” but only asks “that a
manufacturer make good on the contractual commitment that it
voluntarily undertook by placing that warranty on its product.”
Id. at 444 (footnote omitted).
The Court remanded the fraud and negligent-failure-towarn claims for a determination of whether the common-law duties
they imposed were equivalent to the FIFRA labeling requirements.
Id. at 447.
Dow now asks this court to read Bates as inapplicable
because Bates addressed only express preemption, while this case
involves implied conflict preemption.
177; ECF No. 29, PageID # 742.
See ECF No. 16-1, PageID #
At the hearing on the motion,
Dow’s counsel–-who also represented Dow in Bates–-told the court
that his recollection was that implied preemption was never
before the Bates Court because neither party raised it.
counsel’s recollection is mistaken.
A review of the briefs in Bates indicates that the
parties and various amici curiae argued implied conflict
preemption generally and impossibility preemption specifically.
Dow’s Answering Brief framed the question presented to the Bates
Whether petitioners’ claims for crop
damages–-which turn on the contention that
respondent had a state-law obligation to warn
them that its pesticide was not suitable for
use on soils with elevated pH levels--are
expressly or impliedly preempted by the
Federal Insecticide, Fungicide, and
Rodenticide Act, 7 U.S.C. § 136-136y.
Resp’t’s Br., 2004 WL 2758217 (U.S.), at i (emphasis added).
the section arguing for implied conflict preemption, Dow’s brief
also referred the Court to the impossibility preemption arguments
that the Product Liability Advisory Council, Inc., made as amicus
curiae in support of Dow.
Id. at 36 n.24 (“On the question of
implied or conflict preemption, we also refer the Court to the
brief filed by amicus Product Liability Advisory Council.”);
Brief for the Product Liability Advisory Council, Inc., as Amicus
Curiae in Support of Respondent, 2004 WL 2681682 (U.S.), at 17.
Bates’s Opening Brief similarly contended that the
claims were not impliedly preempted.
See Pet’r’s Brief, 2004 WL
2075750 (U.S.), at 29; see also Pet’r’s Reply Brief, 2004 WL
3017317 (U.S.), at 3, 7.
Other amicus briefs filed with the
Court also discussed whether the claims were preempted under the
impossibility prong of implied conflict preemption.
Curiae Brief of the Defense Research Institute in Support of
Respondent, 2004 WL 2714007 (U.S.), at 29; Brief for American
Chemistry Council as Amicus Curiae in Support of Respondent, 2004
WL 2681683 (U.S.), at 5-6.
Justice Thomas noted as much, stating
that Dow had argued that there was both express and implied
preemption under FIFRA.
See 544 U.S. at 458 (Thomas, J.,
concurring in part, dissenting in part).
preemption, including impossibility conflict in particular, was
indeed before the Bates Court.
That these arguments, while properly raised by both
parties, were ignored in the majority opinion indicates that the
Bates Court rejected impossibility preemption sub silentio.
Dennis v. Higgins, 498 U.S. 439, 449 (1991) (noting implicit
rejection of argument concerning relief under 42 U.S.C. § 1983);
Jackson v. Metro. Edison Co., 419 U.S. 345, 354 n.9 (1974)
It makes no sense to think otherwise.
The Bates Court
was reversing the court of appeals’ preemption decision and had
to consider any arguments that, if successful, would have
affirmed the lower court decision finding preemption.
Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 720 (1945),
adhered to on reh’g, 327 U.S. 661 (1946) (when court of appeals
reversed judgment of district court but made no reference to the
ground upon which district court granted judgment or defendant’s
arguments in support of affirmance, “its judgment must be taken
to have determined implicitly that none of [defendant’s]
contentions in these respects is valid”).
Prior to Bates, the
Supreme Court had already clarified in Geier v. American Honda
Motor Co., 529 U.S. 861, 869-70 (2000), that even though a state
law is not within the domain expressly preempted, the state law
may be preempted if it frustrates the purpose of the federal law
or makes compliance with both federal and state law impossible.
The Bates Court thus had to consider any arguments that the
claims were impliedly preempted because such arguments, if
persuasive, would have necessarily led to an affirmance of the
decision on appeal.
The Court’s reversal of the court of appeals
in the face of Dow’s implied conflict preemption arguments in
support of affirmance thus indicates that the Court implicitly
rejected Dow’s contentions.
It is understandable that the Bates Court did not
explicitly address implied preemption.
The Court concluded that
Congress had expressed its intent in § 136v to allow states to
exercise broad authority under FIFRA to regulate pesticides
through state common law, so long as the states did not impose
labeling or packaging requirements contrary to what was federally
In so concluding, the Court identified as the
determinative issue regarding FIFRA preemption the question of
whether a claim imposed a labeling or packaging requirement
different from a FIFRA requirement.
Under the circumstances
before it in Bates, once the Court concluded that the claims were
not expressly preempted, it would have been inconsistent for the
Court to have concluded that FIFRA somehow impliedly preempted
those same claims.
Indeed, Justice Thomas, concurring in the
judgment in part and dissenting in part, commended the majority
for “rightly declin[ing] to address respondent’s argument that
petitioners’ claims are subject to other types of pre-emption.”
Bates, 544 U.S. at 458.
As he put it, “Today’s decision thus
comports with this Court’s increasing reluctance to expand
federal statutes beyond their terms through doctrines of implied
Id. at 459.
Even if Bates cannot be read as having rejected
impossibility preemption and this court must therefore perform
its own impossibility preemption analysis in connection with
Dow’s arguments, Dow’s summary judgment motion fails.
Dow argues that “[f]ederal law required [Dow] to make
and sell Dursban TC exactly as the EPA had registered it, and a
court may not hold a civil defendant liable under state law for
conduct federal law requires.”
ECF No. 16-1, PageID # 179.
cites to several statutory provisions and EPA regulations in this
regard, including 40 C.F.R. § 152.130(a), which provides that
“[a] registrant may distribute or sell [the] registered product
with the composition, packaging and labeling currently approved
by the Agency.”
See id., PageID #s 187-95.
The import of Dow’s
argument is clear, namely, that any state law that could
indirectly regulate a registered pesticide runs afoul of FIFRA’s
directive that a pesticide must be sold and labeled as approved
However, “[t]o say, as the statute does, that [a
defendant] may not market a [product] without federal approval
(i.e., without an . . . approved label) is not to say that
federal approval gives [a defendant] the unfettered right, for
all time, to market its [product] with the specific label that
was federally approved.”
Wyeth, 555 U.S. at 592 (Thomas, J.,
concurring in the judgment).
“Initial approval of a label
amounts to a finding by the [applicable federal agency] that the
label is safe for purposes of gaining federal approval to market
It does not represent a finding that the
[product], as labeled, can never be deemed unsafe by later
federal action, or as in this case, the application of state
The statutory and regulatory scheme created by FIFRA
and its interpreting regulations contemplates that each state
will regulate pesticide sales and use within its borders and
authorizes such action.
See 7 U.S.C. § 136v(a).
The EPA’s own
website acknowledges that “states have primary authority for
compliance monitoring and enforcing against illegal pesticide
See EPA, About Pesticide Registration, http://www.epa.gov/
pesticide-registration/about-pesticide-registration (last visited
Dec. 17, 2015).
For instance, states may under certain
conditions register a new end use pesticide for any use.
C.F.R. § 162.152.
This may require a state to perform an
independent “unreasonable adverse effects” determination based on
data submissions, just as the EPA would for proposed nationwide
40 C.F.R. § 162.153.
More significantly, although Dow is correct that FIFRA
makes it unlawful for any person to distribute or sell “any
registered pesticide the composition of which differs . . . from
its composition as described in connection with its registration
under Section 136a,” 7 U.S.C. § 136j(a)(1)(C), FIFRA does not
foreclose each state from restricting or outright banning
registered pesticides from being used and sold within its
Cf. Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597,
613-14 (1991) (“FIFRA nowhere seeks to establish an affirmative
permit scheme for the actual use of pesticides.
does not equate registration and labeling requirements with a
general approval to apply pesticides throughout the Nation
without regard to regional and local factors like climate,
population, geography, and water supply.”).
FIFRA permits a state to ban the sale of a pesticide
within the state if the state finds, for instance, that one of
the pesticide’s label-approved uses is unsafe.
Bates, 544 U.S.
at 446 (instructing that § 136v “confirms the State’s broad
authority to regulate the sale and use of pesticides.
§ 136v(a), a state agency may ban the sale of a pesticide if it
finds, for instance, that one of the pesticide’s label-approved
uses is unsafe.” (footnote omitted)); id. at 450 (FIFRA
“authorizes a relatively decentralized scheme that preserves a
broad role for state regulation.
Most significantly, States may
ban or restrict the uses of pesticides that EPA has approved;
they may also register, subject to certain restrictions,
pesticides for uses beyond those approved by EPA.” (citations
Cf. Mortier, 501 U.S. at 615 (holding that respondent
could not rely on theory that compliance with FIFRA and local
ordinances regulating pesticides was a physical impossibility).
A state’s ability to ban or restrict the use of an EPA-
approved pesticide clearly undercuts Dow’s sweeping contention
that any state law that impedes Dow’s ability to sell its
registered product runs afoul of FIFRA.
Dow, as the party moving
for summary judgment on its preemption defense, has the burden of
showing that it is truly impossible for it to comply with both
FIFRA and state law.
Dow fails to carry this burden.
Bates clearly applies and is not trumped by the later
decisions in Bartlett and Mensing.
Neither Mensing nor Bartlett
overruled Bates as it applies to FIFRA.
approvingly to Bates, see Mensing, 131 S. Ct. at 2592, and
Bartlett also addressed Bates without overruling it, see
Bartlett, 133 S. Ct. at 2480.
In addition, the holdings in
Bartlett and Mensing addressed preemption under the Federal Food,
Drug, and Cosmetic Act, which differs from FIFRA in vital ways.
Unlike FIFRA, the FDCA, as construed in Bartlett and
Mensing, lacked any express preemption provision applicable to
the preemption issues raised in Bartlett and Mensing.
Bartlett, 133 S. Ct. at 2470-71; Mensing, 131 S. Ct. at 2574.
See 21 U.S.C. § 301 et seq.
The statutory scheme in the FDCA
does not contemplate FIFRA’s level of state participation in
regulating products within a federal statute’s purview.
Mensing and Bartlett relied on another detail entirely absent
here, namely that the defendants in those cases were generic drug
In Mensing, plaintiffs alleged that generic drug
manufacturers had violated state tort laws by failing to alter
generic drug labels to adequately warn of the risk of severe
131 S. Ct. at 2573.
argued that the claims were preempted by the FDCA.
the FDCA did not contain an express preemption provision, the
Court turned to implied conflict preemption and held that it was
impossible for the generic drug manufacturers to comply with both
state tort duties and the FDCA duties imposed on generic drug
Key to the Court’s decision was its recognition that,
under the FDCA, generic drug manufacturers had a “duty of
sameness,” which required that the labels and composition of
generic drugs at all times be the same as brand name drugs.
The state tort laws at issue in Mensing required
manufacturers that are “or should be aware of [their] product’s
danger to label that product in a way that renders it reasonably
Id. at 2573.
The Court explained:
If the Manufacturers had independently
changed their labels to satisfy their
state-law duty, they would have violated
federal law. Taking [plaintiffs’]
allegations as true, state law imposed on the
Manufacturers a duty to attach a safer label
to their generic [drug]. Federal law,
however, demanded that generic drug labels be
the same at all times as the corresponding
brand-name drug labels. Thus, it was
impossible for the Manufacturers to comply
with both their state-law duty to change the
label and their federal law duty to keep the
label the same.
Id. at 2578 (citation omitted).
In other words, the Mensing
Court held that the plaintiffs’ state-law claims were preempted
by the FDCA because it was impossible for the generic drug
manufacturers to comply with their state-law duty to unilaterally
change the label and their federal law duty to keep the label the
The Court noted that its holding was specific to
generic drug manufacturers:
“It is beyond dispute that the
federal statutes and regulations that apply to brand-name drug
manufacturers are meaningfully different than those that apply to
generic drug manufacturers. . . .
But different federal statutes
and regulations may, as here, lead to different pre-emption
Id. at 2582.
Two years later, the Supreme Court applied the Mensing
preemption analysis in Bartlett, another case involving the
FDCA’s preemptive effect on state-law claims asserted against a
generic drug manufacturer.
133 S. Ct. 2466.
The plaintiff in
Bartlett sued the manufacturer of a generic anti-inflammatory
drug, asserting failure-to-warn and design-defect claims.
She had developed an acute case of toxic epidermal
necrolysis after taking the drug.
At the outset, the Court
noted that “the FDCA’s treatment of prescription drugs includes
neither an express pre-emption clause . . . , nor an express
non-pre-emption clause . . . .
In the absence of that sort of
‘explicit’ expression of congressional intent, we are left to
divine Congress’ will from the duties the statute imposes” by
analyzing the statute for an implied conflict.
Id. at 2480.
Applying the impossibility preemption analysis in Mensing, the
Bartlett Court concluded that it was impossible for the generic
drug manufacturer to comply with its state-law duty to strengthen
the warnings on the label and its federal-law duty not to alter
the label, and that the state law was therefore preempted.
at 2476-7 (“[Mensing] made clear [that] federal law prevents
generic drug manufacturers from changing their labels.
federal law prohibited [the defendant] from taking the remedial
action required to avoid liability under [state] law.”).
Unsurprisingly, courts construing Bartlett and Mensing
have pointed out that preemption in both cases depended on the
defendants’ status as generic drug manufacturers.
the Sixth Circuit observed:
Important to the preemption findings in
Bartlett and Mensing is the fact that generic
drug manufacturers are prohibited from making
any unilateral changes to the drug’s
composition or label, which is known as the
“sameness” requirement. Therefore, in
Mensing, the Supreme Court determined that
the plaintiffs’ state law failure to warn
claims regarding the generic drug were barred
by impossibility preemption because the duty
of sameness prohibited the generic
manufacturers from unilaterally strengthening
the drug’s label so as to comply with their
state-law duties. Likewise, in Bartlett, the
Court found that the plaintiff’s state law
design defect claim regarding the generic
drug was barred by impossibility preemption
because the sameness requirement prohibited
the manufacturer from unilaterally changing
the composition or labeling of the drug, as
state law required.
Yates v. Ortho-McNeil-Janssen Pharm., Inc., No. 15-3104, 2015 WL
8538119, at *10 (6th Cir. Dec. 11, 2015); see also Moretti v.
Wyeth, Inc., 579 Fed. Appx. 563, 565 (9th Cir. 2014), cert.
denied, 135 S. Ct. 1398 (2015); Mullins v. Ethicon, Inc., No.
2:12-CV-02952, 2015 WL 7761033, at *6 (S.D.W. Va. Dec. 2, 2015);
In re Tylenol (Acetaminophen) Mktg., No. 2436, 2015 WL 7075949,
at *21 (E.D. Pa. Nov. 13, 2015).
Mensing and Bartlett are simply not analogous to the
case before this court.
Even if Mensing and Bartlett’s holdings
were applicable beyond the generic drug manufacturer context
(that is, to brand name drug manufacturers), Bates would control
the present case insofar as it addressed the very same statute
and issues before this court.
Mrs. Ansagay’s State-Law Claims.
Mrs. Ansagay has asserted claims for wrongful death,
negligence, breach of express warranty, breach of implied
warranty, strict product liability, defective design, testing,
and/or manufacturing, negligent infliction of emotional distress,
and intentional infliction of emotional distress.
32, PageID #s 816-20.
See ECF No.
Again, under Bates, “[f]or a particular state rule to
be pre-empted, it must satisfy two conditions.
First, it must be
a requirement ‘for labeling or packaging’; rules governing the
design of a product, for example, are not pre-empted.
must impose a labeling or packaging requirement that is ‘in
addition to or different from those required under this
544 U.S. at 444.
“Only if an action fulfills both
requirements of the test is it preempted by FIFRA.”
Bonide Products, Inc., 28 F. Supp. 3d 383, 390 (E.D. Pa. 2014)
(citing Bates, 544 U.S. at 444).
Negligence (Counts II & III).
“It is well-established that, in order for a plaintiff
to prevail on a negligence claim, the plaintiff is required to
prove all four of the necessary elements of negligence: (1) duty;
(2) breach of duty; (3) causation; and (4) damages.”
State, 168 P.3d 17, 23 n.11 (Haw. 2007) (citation omitted).
Counts II and III allege that Dow owed a duty of care
not to injure the consumer or user of Dursban TC.
32, PageID # 816.
See ECF No.
Count II alleges that Dow breached that duty
by supplying the carcinogenic Dursban TC, and that this caused
Mr. Ansagay’s adenocarcinoma.
Count III alleges that
Dursban TC caused him to suffer infertility and depression.
These claims are not preempted under Bates because they
do not impose a labeling or packaging requirement.
are based on the idea that Dursban TC itself was unsafe.
U.S. at 444 (“Rules that require manufacturers to design
reasonably safe products, to use due care in conducting
appropriate testing of their products, to market products free of
manufacturing defects, and to honor their express warranties or
other contractual commitments plainly do not qualify as
requirements for ‘labeling or packaging.’”).
Defective Design, Testing, and/or
Manufacturing (Count VII).
Mrs. Ansagay also alleges that Dow was negligent in
designing, testing, and manufacturing Dursban TC.
32, PageID # 819.
See ECF No.
According to this count, Dow was “negligent in
not taking reasonable measures in designing Dursban to protect
against a foreseeable risk of injury,” and that, “[d]ue to
Defendants[’] negligence in design, testing, and/or
manufacturing, Dursban injured Mr. Ansagay.”
other negligence-based claims in this case, this claim is not
preempted by FIFRA.
See Bates, 544 U.S. at 444.
Although Dow attempts to characterize this and other
counts as disguised failure-to-warn claims, this is incorrect.
Mrs. Ansagay acknowledges that Mr. Ansagay unfortunately
disregarded the clear warnings on the label that instructed users
of Dursban TC to wear a respirator because of the health risks
posed by the pesticide.
In Count VII, Mrs. Ansagay is not
pursuing any failure-to-warn claims against Dow for this reason.
The common thread in her negligence claims is instead that Dow
designed an unreasonably dangerous substance.
Breach of Express and Implied Warranties
(Counts IV & V).
Mrs. Ansagay asserts claims for the breach of express
and implied warranties pursuant to Haw. Rev. Stat. § 490:2-318.
Haw. Rev. Stat. § 490:2-318 provides:
A seller’s warranty whether express or
implied extends to any person who may
reasonably be expected to use, consume or be
affected by the goods and who is injured by
breach of the warranty. A seller may not
exclude or limit the operation of this
section with respect to injury to the person
of an individual to whom the warranty
Accordingly, to prevail on the claim for breach of an express
warranty, Mrs. Ansagay must prove that 1) Dow was a seller or
lessor in a sale or lease of goods; 2) Mr. Ansagay was reasonably
expected to use, consume or be affected by the goods; 3) a
representation, affirmation of fact, or promise regarding the
goods was made to Mr. Ansagay by Dow or an authorized agent of
Dow, and that representation, affirmation of fact, or promise
became part of the basis of the bargain between Dow and Mr.
Ansagay; 4) the goods as delivered did not conform to that
representation, affirmation of fact, or promise; and 5) failure
of the goods to conform to the representation, affirmation of
fact, or promise was a legal cause of the injuries Mrs. Ansagay
See Haw. R. Civ. Jury Instr. 12.1.
With regard to the breach of an express warranty, Mrs.
Ansagay alleges that Dow “voluntarily assumed an explicit
warranty that their product was safe to use for a pesticide
applicator,” that Dow “breached [its] contractually assumed
express warranty by supplying a product that caused Mr. Ansagay’s
cancer, infertility, and depression,” and that “[a]ny warranty
disclaimer or limitation of liability clause offered by
Defendants for a product as dangerous as Dursban would be
unconscionable and unenforceable by law.”
ECF No. 32, PageID #
Mrs. Ansagay further alleges that an “agent, employee, and
or representatives of Van Waters and/or other chemical sales
corporations that purchased Dursban TC from Dow and sold it to
XTermco, represented to Mr. Ansagay that Dursban TC was safe
because the E.P.A. would not allow any pesticide to be sold that
the body could not flush out.”
See id., PageID # 810.
With regard to the breach of an implied warranty, Mrs.
Ansagay alleges that the law imposes an implied warranty of
fitness for a particular purpose, and that Dow breach this
warranty by supplying a product that caused cancer, infertility,
See id., PageID # 818.
FIFRA does not preempt claims for breach of an express
warranty, as express warranty claims are not based on a
requirement that a manufacturer label its products in any
Bates, 544 U.S. at 444.
A “cause of action on
an express warranty asks only that a manufacturer make good on
the contractual commitment that it voluntarily undertook by
placing that warranty on its product,” rather than requiring a
manufacturer to include specific content that could conflict with
FIFRA labeling and packaging requirements.
Id. at 443-44; see
also Wuebker v. Wilbur-Ellis Co., 418 F.3d 883, 887 (8th Cir.
2005) (implied warranty of fitness for a particular purpose claim
not preempted by FIFRA because it does not impose labeling or
packaging requirement); Gucciardi, 28 F. Supp. 3d at 391; Snyder
v. Farnam Companies, Inc., 792 F. Supp. 2d 712, 719 (D.N.J.
Mrs. Ansagay’s express warranty claims are not preempted
as based on “labeling requirements” because those claims derive
solely from Dow, the warrantor, and are not imposed by state law.
With respect to any warranty, express or implied, the
EPA allows a label to be revised without registration of an
amended or new product if the revision consists of “[c]hanges in
warranty or warranty disclaimer statements.”
Registration (PR) Notice 1988-6 (Aug. 12, 1988), at
Thus, Dow could at least potentially comply with FIFRA and at the
same time alter the warranties on the Dursban TC label.
Strict Product Liability (Count VI).
Under Hawaii law, a plaintiff’s burden with respect to
a claim of strict product liability “is to prove (1) a defect in
the product which rendered it unreasonably dangerous for its
intended or reasonably foreseeable use; and (2) a causal
connection between the defect and the plaintiff’s injuries.”
Tabieros v. Clark Equip. Co., 944 P.2d 1279, 1297 (Haw. 1997).
product may be defective because it was defectively manufactured,
was defectively designed, or carried an insufficient warning.
See Torres v. N.W. Eng’g Co., 949 P.2d 1004, 1018 (Haw. Ct. App.
Count VI asserts that Dursban TC had a defect that
caused cancer, male infertility, and depression, and that this
defect made the product unreasonably dangerous for its intended
or reasonably foreseeable use.
See ECF No. 32, PageID # 818.
Insofar as Mrs. Ansagay does not base this strict product
liability claim on an insufficient warning, it is not preempted
Intentional & Negligent Infliction of
Emotional Distress (Counts VIII & IX).
“Under Hawaii law, the elements of [intentional
infliction of emotional distress] are ‘(1) that the act allegedly
causing the harm was intentional or reckless, (2) that the act
was outrageous, and (3) that the act caused (4) extreme emotional
distress to another.’”
Enoka v. AIG Hawai’i Ins. Co., 128 P.3d
850, 872 (Haw. 2006) (quoting Hac v. Univ. of Haw., 73 P.3d 46,
60-61 (Haw. 2003)).
The Hawaii Supreme Court defines the term
“outrageous” as “‘without just cause or excuse and beyond all
bounds of decency.’”
Enoka, 128 P.3d at 872 (quoting Lee v. Aiu,
936 P.2d 655, 670 n.12 (Haw. 1997)).
emotional distress’ constitutes, inter alia, mental suffering,
mental anguish, nervous shock, and other ‘highly unpleasant
Enoka, 128 P.3d at 872 (citation omitted).
The elements of a claim for negligent infliction of
emotional distress are:
(1) that the defendant engaged in
negligent conduct; (2) that the plaintiff suffered serious
emotional distress; and (3) that such negligent conduct of the
defendant was a legal cause of the serious emotional distress.
Tran v.State Farm Mut. Automobile Ins. Co., 999 F. Supp. 1369,
1375 (D. Haw. 1998).
A cognizable claim for NIED under Hawaii
law also requires “physical injury to either a person or
property,” see Calleon v. Miyagi, 876 F.2d 1278 (1994), or a
mental illness, see Haw. Rev. Stat. § 663-8.9.
The IIED and NIED claims in Counts VIII and IX are not
premised on any allegation that the packaging or labeling of
Dursban TC provided an inadequate warning of its dangers or
should have otherwise been changed.
Neither claim is preempted.
See ECF No. 32, PageID #s
Wrongful Death (Count I).
Mrs. Ansagay also brings a claim for wrongful death
under Haw. Rev. Stat. § 663-3, alleging that as a result of Dow’s
wrongful act or negligence she and her son suffered “[l]oss of
society, companionship, comfort, consortium, and protection”;
“[l]oss of marital care, attention, advice, or counsel”; and
“[l]oss of parental care, training, guidance, or education,
suffered as a result of the death of the person.”
See ECF No.
32, PageID # 816.
Wrongful death is a derivative claim under Hawaii law.
See, e.g., Yamamoto v. Premier Ins. Co., 4 Haw. App. 429, 668
P.2d 42, 48 (1983), overruled on other grounds by Doi v. Hawaiian
Ins. & Guar. Co., Ltd., 727 P.2d 884 (1986); Hara v. Island Ins.
Co., Ltd., 759 P.2d 1374, 1375-76 (Haw. 1988).
The wrongful death claim in Count I is not preempted to
the extent it is based on underlying claims that are not
Restatement (Second) of Torts § 402A.
In addition to arguing preemption, Dow contends, “In
states that have adopted § 402A of the Restatement (Second) of
Torts (like Hawai’i), there is broad agreement that a legally
Section 402A provides that:
(1) One who sells any product in a defective
condition unreasonably dangerous to the user
or consumer or to his property is subject to
adequate warning negates liability under each of Plaintiffs’
theories, and it negates liability for punitive damages as well.”
See ECF No. 16-1, PageID # 193.
Dow appears to argue that its
EPA-approved label is categorically a legally adequate warning
barring all claims.
The court is unpersuaded.
In support of its assertion, Dow relies on Temple v.
Velcro USA, Inc., 196 Cal. Rptr. 531 (Cal. Ct. App. 1983), and
Papike v. Tambrands, Inc., 107 F.3d 737, 744 (9th Cir. 1997), a
Ninth Circuit case construing Temple.
See ECF No. 16-1, PageID #
But in California Henley v. Philip Morris Inc., 9 Cal.
Rptr. 3d 29 (Cal. Ct. App. 2004), the California Court of Appeals
rejected a similar argument.
liability for physical harm thereby caused to
the ultimate user or consumer, or to his
(a) the seller is engaged in the
business of selling such a product, and
(b) it is expected to and does reach the
user or consumer without substantial
change in the condition in which it is
(2) The rule stated in Subsection (1) applies
(a) the seller has exercised all
possible care in the preparation and
sale of his product, and
(b) the user or consumer has not bought
the product from or entered into any
contractual relation with the seller.
The defendant in Henley cited to both Temple and Papike
for the proposition “that a product labeled with mandatory
warnings ‘cannot’ be found to ‘fail California’s consumer
Henley, 9. Cal. Rptr. at 55-56.
this argument, the Henley court explained:
In Papike v. Tambrands Inc. (9th Cir. 1997)
107 F.3d 737, cert. denied, the court
affirmed a summary judgment for a tampon
manufacturer on a claim that its product
caused the plaintiff to suffer toxic shock
syndrome. Defendant cites the case for its
disposition of the plaintiff’s consumer
expectations claim in two terse sentences:
‘Tambrands’ warnings met the federal
requirements and Papike’s design defect claim
therefore fails the ‘consumer expectation’
test. To rule otherwise would allow the
anomalous circumstance that a consumer is
entitled to expect a product to perform more
safely than its government-mandated warnings
indicate.’ We are unpersuaded that these
comments conform to California law, at least
if taken outside the facts of that case. The
warnings there might well have justified
summary judgment for the defendant, because
they explicitly notified the user of the very
danger at issue and there is no suggestion of
any countervailing evidence raising a genuine
material issue of fact as to the likely
expectations of consumers. The court’s
unilluminated statement that liability would
be ‘anomalous’ does not furnish a sufficient
ground to take the matter from the jury.
Id. at 56.
The court next addressed Temple and stated that
“[n]othing in that decision suggests that a government-mandated
warning categorically bars liability for a product otherwise
shown to be more dangerous than ordinary consumers expect.”
Dow also cites to Gauthier v. AMF, Inc., 788 F.2d 634
(9th Cir. 1986), opinion amended on denial of reh’g, 805 F.2d 337
(9th Cir. 1986), a case construing Montana law.
But that case
held that the “adequacy of the warnings is a proper jury
788 F.2d at 636.
The existence of a federal agency-
approved warning label was not a categorical bar against statelaw claims alleging that the product was unreasonably dangerous.
Indeed, Texas, the state that Bates arose in, had
adopted Restatement (Second) of Torts § 402A long before Bates
See, e.g., FFE Transp. Services, Inc. v. Fulgham,
154 S.W.3d 84, 87 (Tex. 2004) (“In McKisson v. Sales Affiliates,
Inc., 416 S.W.2d 787, 788-89 (Tex. 1967), we adopted section 402A
of the Restatement (Second) of Torts on the scope of strict
This did not cause the state-law claims
in Bates to be barred on the ground that there was an existing
government-approved warning label.
These cases contradict Dow’s assertion that section
402A immunizes manufacturers from liability under state law when
there is a federally approved warning label.
Dow does not cite to any case in Hawaii that stands for the
sweeping proposition Dow advances.
There is another reason that Dow’s arguments with
respect to section 402A fail.
Dow specifies that preemption
establishes the legal adequacy of the warning.
See ECF No. 16-1,
PageID # 193 (“Because preemption forbids any challenge to the
legal sufficiency of Dursban TC’s label, [Dow] has established a
‘proper disclaimer to any express or implied warranties,’ and has
established preemption of Plaintiffs’ claims of negligence, and
for negligent and intentional infliction of emotional
But Dow has not established that any claim is
Dow is not entitled to summary judgement as to any of
Ansagay’s claims based on section 402A of the Restatement
(Second) of Torts.
Other Arguments Raised for the First Time in Dow’s
In its Reply, Dow asserts for the first time certain
arguments relating to the breach of warranty claims.
29, PageID #s 739-42, 750-51.
See ECF No.
This court declines to address
those new contentions raised for the first time in the reply
See Local Rule 7.4 (“A reply must respond only to
arguments raised in the opposition.
Any argument raised for the
first time in the reply shall be disregarded.”).
Mrs. Ansagay’s Concise Statement.
Under Local Rule 56.1(b), any party opposing a motion
for summary judgment “shall file and serve with his or her
opposing papers a separate document containing a single concise
statement that admits or disputes the facts set forth in the
moving party’s concise statement, as well as sets forth all
material facts as to which it is contended there exists a genuine
issue necessary to be litigated.”
Material facts set forth in
the moving party’s concise statement “will be deemed admitted
unless controverted by a separate concise statement of the
Local Rule 56.1(g). “When preparing the
separate concise statement, a party shall reference only the
material facts that are absolutely necessary for the court to
determine the limited issues presented in the motion for summary
judgment (and no others), and each reference shall contain a
citation to a particular affidavit, deposition, or other document
that supports the party’s interpretation of the material fact.”
Local Rule 56.1(c).
Mrs. Ansagay, by not filing a concise statement, has
failed to comply with Local Rule 56.1.
Although this court
could, on this basis, deem assertions in Dow’s concise statement
admitted under Local Rule 56.1(g), this would not affect summary
Preemption is a legal issue that can be resolved
without further factual development of the record in this case.
As for Dow’s factual arguments, deeming the assertions in Dow’s
concise statement as admitted would not entitle it to summary
Dow’s concise statement asserts that (1) Dursban TC
was registered with the EPA under FIFRA; (2) Dursban TC was at
all times registered with the Hawaii Department of Agriculture
under the Hawaii Pesticides Law, chapter 149A; (3) Dow always
sold Dursban TC with the approved label and chemical composition;
(4) Dursban TC remained properly registered at all relevant
times; (5) the active ingredient in Dursban TC is chlorpyrifos;
(6) Dursban TC included certain language in its warning label,
such as “WARNING” and “MAY BE FATAL IF SWALLOWED,” and “EXCESSIVE
ABSORPTION THROUGH SKIN MAY BE FATAL”; and (7) the EPA currently
does not view chlorpyrifos as a human carcinogen.
17, PageID #s 200-02.
See ECF No.
These facts, even if admitted, would not
establish that Dow is entitled as a matter of law to a judgment
based on preemption with respect to any of Mrs. Ansagay’s claims.
As stated above, Dow’s motion for summary judgment is
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 29, 2015.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Ansagay, et al. v. Dow Agrosciences LLC, et al., Civ. No. 15 00184 SOM/RLP;
ORDER DENYING MOTION FOR SUMMARY JUDGMENT.
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