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Supreme Court Says Farmers Can Sue Pesticide Manufacturers for Damage


From: THE AGRIBUSINESS EXAMINER May 2, 2005, Issue #403
Monitoring Corporate Agribusiness From a Public Interest Perspective
EDITOR\PUBLISHER; A.V. Krebs E-MAIL: avkrebs@earthlink.net
WEB SITE: http://www.ea1.com/CARP/ TO RECEIVE: Send name and address

LINDA GREENHOUSE, NEW YORK TIMES:

The Supreme Court ruled on Wednesday that farmers whose crops are damaged by federally approved pesticides or herbicides may pursue damage claims against the manufacturers in state court.

The 7-to-2 decision was one of the court's most significant rulings on the pre-emptive effect of federal statutes. In unusually pointed terms, the majority rejected the Bush administration's view that lawsuits claiming manufacturers negligently designed, tested or manufactured their products are pre-empted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the federal law that governs the registration and labeling of these products.

The case began as a threatened lawsuit in the Texas state courts by 29 Texas peanut farmers whose crops failed five years ago after they applied a new weed killer called Strongarm. After negotiations with the farmers broke down and a suit was imminent, the manufacturer, Dow AgroSciences, a unit of the Dow Chemical Company, went into federal district court in Lubbock seeking a declaration that the suit was pre-empted by the "uniformity" clause in the statute.

That clause provides that states "shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required" by the federal law. In the view of the district court and the United States Court of Appeals for the Fifth Circuit, in a 2003, the company was correct and the suit was barred.

The federal government had long taken the position that the statute, usually referred to as FIFRA, did not pre-empt damage suits in state courts. But the Bush administration reversed that position and urged the Supreme Court to deny the appeal.

The justices nonetheless agreed to hear the case, Bates v. Dow AgroSciences L.L.C., No. 03-388. The appeal has been closely watched for signs of the court's evolving approach to pre-emption. In general, a broad doctrine of pre-emption favors business by keeping tort cases out of state court and avoiding the need to satisfy 50 separate legal systems.

Since FIFRA provides no right for individuals to sue in federal court, a finding of pre-emption would have meant that consumers would have no opportunity at all to sue manufacturers. Arthur H. Bryant, executive director of Trial Lawyers for Public Justice, a public-interest law firm representing consumers, said the decision was "an important and striking development" in light of the general trend in legislatures and courts toward curbing access to the tort system.

The majority opinion by Justice John Paul Stevens said that the Fifth Circuit, along with the many other courts to have given pre-emptive effect to Fifra, had given too broad an interpretation to the 1992 Supreme Court decision that found some suits against cigarette manufacturers to be pre-empted by the federal cigarette labeling law.

That case, Cipollone v. Liggett Group Inc., interpreted the pre-emption clause of the cigarette law, which barred states from imposing any additional "requirement or prohibition" on cigarette manufacturers. The court held that states imposed additional requirements by opening their courts to tort suits.

But that did not mean that all state court suits under all other federal regulatory statutes were pre-empted, Justice Stevens said on Wednesday. The main point of the opinion was that each statute must be interpreted in its own context, according not only to the statutory language but to the history of litigation involving the regulated product.

State court suits against pesticide manufacturers had previously been common, Justice Stevens said, and Congress should not be interpreted to have displaced them without a more clear indication that it intended to do so. He said that, properly read, the pre-emption language in FIFRA permitted suits under state laws that were "parallel" to the federal law, as long as the states did not impose additional or different regulatory requirements.

That meant in this case that the farmers' claims for "defective design, defective manufacture, negligent testing and breach of express warranty" were not pre-empted, the court concluded. At the same time, the court ordered the Fifth Circuit to give further consideration to whether the claims for fraud and "failure to warn" could go forward or were pre-empted.

Justice Stevens said the administration's argument that FIFRA broadly required pre-emption "is particularly dubious given that just five years ago the United States advocated the interpretation that we adopt today."

Dow no longer sells Strongarm in Texas, New Mexico or Oklahoma, areas where the acidity of the soil evidently blocked the desired action of the product and caused it to harm the crops.

In a dissenting opinion, Justice Clarence Thomas, joined by Justice Antonin Scalia, said the suit should not go forward without giving the Fifth Circuit the opportunity to reconsider its pre-emption ruling for all the claims.

April 27, 2005