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Products Liability Preemption Debate Awaits New Supreme Court Directive

The U.S. Supreme Court will hear a federal preemption case in its 2004-05 term involving the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136-137 (FIFRA). The question presented in Bates v. Dow Agrosciences LLC, 03-388, is "[w]hich, if any, state law crop injury claims are preempted FIFRA?"

Bates comes from the Fifth Circuit Court of Appeals, which ruled that FIFRA preempts claims asserted by 29 Texas peanut farmers for violations of the Texas Deceptive Trade Practices Act and for breach of warranty, fraud, design defect and negligence arising from their use of a Dow-manufactured herbicide. (332 F.3d 323.) In the amicus curiae brief filed by the United States on the petition for writ of certiorari, the Solicitor General opined that the Fifth Circuit's ruling is correct and that the case does not present a conflict warranting review. Dow similarly pointed out that nine federal circuits and the courts of 27 states have agreed that FIFRA expressly preempts state tort and common law challenges to EPA-accepted pesticide labels. Nonetheless, the U.S. Supreme Court granted certiorari, leaving onlookers to wonder what piqued the Court's attention. One possibility is that the Court sees an opportunity to clarify the appropriate application of two primary products liability express preemption decisions: Cipollone v. Liggett Group , Inc., 520 U.S. 504 (1992), and Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996).

Federal preemption is a first line of defense for consumer product liability defendants in regulated industries. In Cipollone, the Court deemed plaintiffs state and common law claims for failure to warn and breach of warranty preempted by the express preemption language contained in the Public Health Cigarette Smoking Act of 1969, barring a limited set of "requirement[s] or prohibition[s] imposed under State law." Cipollone at 520-21 & n.19 (plurality opinion). In Medtronic, the Court examined the preemption language of the Medical Device Amendments of 1976, and interpreted much of it as having been intended by Congress to be dependent upon regulatory actions taken by the FDA. Medtronic at 489, 496 (plurality opinion). After a close examination of the relevant regulatory scheme in the context of plaintiff's claims, the plurality concluded that plaintiff's state law claims for negligent design, negligent manufacture and failure to warn survived preemption.

In the parties' briefs on petition for certiorari, the Bates petitioners frame the issue of FIFRA preemption by Medtronic, contending that FIFRA's language is not dispositive as to the preemption of state tort clams and common law claims relating to the efficacy of pesticides, and that a claim-specific analysis is appropriate. The United States and Dow contend that Cipollone drives the FIFRA preemption analysis, but that even if a claim-specific approach were taken, preemption would still be appropriate.

Whatever the Court's primary motivation for accepting review of Bates, the opinion is sure to be of keen interest to all products defendants that rely on a preemption defense. The Bates petitioners, in their petition for certiorari, suggest that the Court examine five different categories of preemption "tests" used by lower courts. The adoption of any one test may well impact preemption analysis for regulatory schemes beyond FIFRA.

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