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Ferebee v. Chevron Chem. Co.

Citation: 14 ELR 20556
No. No. 83-1106, 736 F.2d 1529/21 ERC 1688/(D.C. Cir., 06/26/1984)

The court holds that the fact that the warning label that appellant put on paraquat was determined adequate by the Environmental Protection Agency (EPA) under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not preclude liability under state wrongful death law for failure to adequately warn of an inherently dangerous product. The court first holds that actions for wrongful death on federal property, here the Beltsville Agricultural Research Center, are governed by the law of the state containing the federal property, in this case Maryland. Further, it is the state law in effect at the time of the injury that applies; the law is not frozen for this purpose at the time of federal acquisition of the property.

The court next turns to appellant's allegations that the jury's verdict below was inconsistent with the evidence. The scope of review of jury verdicts is very narrow; so long as fair-minded jurors could reach the verdict reached, the verdict will be upheld. Though the issue of causation was one on which experts for the two sides disagreed at trial, the jury was entitled to believe appellee's highly qualified experts. That the scientific community has not had time to conclusively establish a cause and effect relationship between paraquat exposure and the disease at issue by animal and epidemiological studies does not make expert opinion testimony on the subject inadmissible, so long as the expert opinions are based on sound methodologies. Further, the jury was justified in finding that the danger was sufficiently foreseeable to give rise to a duty to warn, since even though appellant may not have known at the time of the injury that dermal paraquat exposure would lead to chronic lung disease, it knew that such exposure could cause acute lung disease and death, but gave no warning whatever that dermal exposure could have any serious internal effects. Finally, the jury was entitled to find that the inadequate labeling was the proximate cause of appellee's death even though it was not clear that appellee read the label appellant did provide. Appellee's employers read the label, and the jury could reasonably have inferred that they would have either taken steps to protect appellee or passed the warning on to appellee, had an adequate warning been provided.

The court next holds that EPA's approval of appellant's label does not require that a jury find the label adequate under state tort law. The purposes of FIFRA may be different from those of state tort law. FIFRA requires a cost-benefit weighing in determining that no unreasonable risk is presented; a state may want to find liability even if cost-benefit standards are met, or may give different weights to factors in the cost-benefit analysis. Turning finally to appellant's most fundamental claim, the court holds that state tort law is not preempted in this circumstance by FIFRA. Though FIFRA does prohibit different or additional state labeling requirements, the state in this case has not sought to impose a labeling requirement. The state may choose to impose compensatory liability even if appellant could not change its label, and appellant can comply with both federal and Maryland law by using the EPA label and paying damages to the injured citizens of Maryland. This may constitute a restriction on use, but FIFRA expressly allows states to impose use regulatons more stringent than the federal ones. In addition, it is a legitimate regulatory aim for Maryland to encourage more complete labeling, by exposing unrecognized dangers and thereby encouraging appellant to seek EPA approval of better labels and encouraging EPA to require better labels. Moreover, courts are to assume that the traditional state police powers, such as provision of tort remedies, are not preempted unless that was the clear and manifest purpose of Congress.Under this standard, the preemption challenge fails on all three of its possible grounds: Congress has not explicitly preempted this precise state action; compliance with both state and federal law is not impossible; and state damage actions are not an obstacle to the accomplishment of the goal of FIFRA, which is to protect citizens, not to subsidize the pesticide industry or to force states to tolerate uncompensated injuries to its citizens from the use of registered pesticides.

The decision of the district court is affirmed.

Counsel for Appellant
Loren Kieve, Laidler B. Mackall
Steptoe & Johnson
1250 Connecticut Ave. NW, Washington DC 20036
(202) 862-2000

Counsel for Appellee
Robert Case Liotta, Nathan I. Finkelstein, Diana J. Simon
Liotta, Finkelstein & Haldane
1729 21st St. NW, Washington DC 20009
(202) 332-7737

Before: WALD and MIKVA, Circuit Judges, and BAZELON, Senior Circuit Judge.