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National Bank of Commerce v. Dow Chem. Co.

Citation: 29 ELR 20456
No. 98-1200, 165 F.3d 602/48 ERC 1084/(8th Cir., 01/11/1999)

The court affirms a district court's grant of summary judgment on several state-law tort claims in favor of pesticide companies whose products allegedly caused a newborn's multiple birth defects. The district court granted summary judgment because the evidence showed that the product at issue had not been used in the plaintiffs' home, and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) pre-empted plaintiffs' claims. The court first holds that the district court did not abuse its discretion by denying further discovery and ruling on summary judgment after over a year of discovery had been completed. The plaintiffs failed to show how additional discovery would alter the evidence before the district court. The court next holds that two of the companies are entitled to summary judgment on the ground that the plaintiffs have not made the requisite showing that the product at issue was actually used in the plaintiffs' home. The companies presented uncontroverted evidence that the product was not used in their home, and the plaintiffs' rest their product identification burden on a snippet of uncertain testimony.

The court then holds that plaintiffs' state-law claims of inadequate labeling or failure to warn are preempted by FIFRA. If a state-law claim is premised on inadequate labeling or a failure to warn, the impact of allowing the claim would be to impose an additional or different requirement for the label or packaging. The court also holds that plaintiffs' express and implied warranty claims are preempted by FIFRA. Allowing their implied warranty claims to survive FIFRA pre-emption would result in additional or different requirements for the pesticide label or package. The court next holds that plaintiffs' claims of defective manufacturing or design based on the presence of toxic impurities in the goods are not preempted by FIFRA. Defectively manufactured or designed products properly labeled under FIFRA may still be subject to state regulation in the form of common law or other claims. Plaintiffs' defective manufacturing or design claims fail, however, not because of preemption, but because they lack sufficient evidentiary support to escape summary judgment. Plaintiffs' evidence does not show whether the product, with or without the presence of toxic impurities, was unreasonably dangerous, and whether the defective condition proximately caused the harm.

Counsel for Appellants
Bernard Whetstone, Kevin M. Odum
Law Offices of Bernard Whetstone
Union National Bank Bldg.
124 W. Capitol Ave., Ste. 1100, Little Rock AR 72201
(501) 378-0807

Counsel for Appellees
Sammye L. Taylor
Wright & Lindsey
2200 Worthen Bank Bldg.
200 W. Capitol Ave., Little Rock AR 72201
(501) 371-0808

Before Arnold and Hansen, JJ.