(Beyond Pesticides, August 17, 2010) A federal appeals court has revived the fraud and negligent misrepresentation claims by blueberry farmers in New Jersey, who say that a pesticide made by Novartis Crop Protection, Inc. reacted badly with fungicides and ruined their crops. Declaring that the lower court improperly dismissed the farmers’ state law claims as preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the federal court concluded that farmers were not suing over the alleged flaws in the warning label-which is federally regulated -rather were complaining about misrepresentations in Novartis’ marketing brochure. The case, Indian Brand Farms Inc. v. Novartis Crop Protection Inc. was filed in the 3rd U.S. Circuit Court of Appeals in New Jersey.
Blueberry farmers said Novartis should have warned them that a new version of its pesticide, including diazinon as the active ingredient, also included a surfactant that reacts badly with fungicides. The promotional brochure failed to mention this reaction and when farmers mixed the diazinon pesticide with the fungicides Captan and Captec, it caused phytotoxic damage, including blotches, depressions and spots, and in some cases killed their plants. It was not clear to the appeals court that the practice of combining pesticides with fungicides was a “foreseeable use” of the product, though farmers are arguing that is was because tank mixing is a common practice.
Senior U.S. Circuit Judge Walter K. Stapleton, however found that a manufacturer’s brochure “does not qualify as ”˜labeling’ under FIFRA,” and that U.S. District Judge Joseph H. Rodriguez of the District of New Jersey had therefore erred in holding that the claims were preempted. In addition to the fraud and misrepresentation claims, Mr. Stapleton also found that the farmers should be allowed to pursue two products liability claims -design defect and failure to warn- because those, too, would not be preempted by FIFRA.
“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,” Mr. Stapleton and Judge D. Michael Fisher wrote.
The farmers’ lawyer, Scott K. Attaway of Kellogg Huber Hansen Todd Evans & Figel in Washington, D.C., however, argued that the practice of tank mixing pesticides and fungicides was both a common one and well known to Novartis. Mr. Stapleton sided with the plaintiffs on this, finding that the “evidence is sufficient for a jury to conclude that tank mixing pesticides and fungicides was a reasonably foreseeable practice.”
This case brings up previous efforts to sue pesticide manufacturers, such as the 2005 Supreme Court case, Bates et al v. Dow AgroSciences LLC. In this case, Texas peanut farmers argued that the Dow herbicide Strongarm (diclosulam) ruined their crops, but were prevented from suing after Dow successfully argued in a lower District court that the registration of pesticides under FIFRA insulates it from citizen suits, or preempts litigation. Dow Chemical Company argued that, because its products are registered by EPA, chemical manufacturers should be shielded from litigation; the Justice Department brief filed before the high court in late November, 2004 was designed to protect pesticide manufacturers when their products cause harm.
The Supreme Court, however, ruled that citizens damaged by pesticides do have the right to sue producers of these toxic products, saying that federal pesticide law does not offer adequate protection from “manufacturers of poisonous substances.” This was an extremely important court decision because it found that: (i) “Pesticides are registered by the Environmental Protection Agency under a risk assessment review process that implicitly does not consider all aspects of potential harm,” (ii) “The potential for court review of cases in which people are harmed creates a strong incentive for the development of safer products,” and (iii) “The same companies or their trade associations, including Dow Chemical Company, that have successfully lobbied for weak national laws and standards do not want people who are harmed as a result to seek redress.”