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Sleath v. West Mont Home Health Services12/28/2000
Heard: January 11, 2000
Submitted: February 15, 2000
1 Appellants Libby Sleath, Mary Ann Hayes, Glenda Truesdell, and Mary Owen brought this personal injury action against Respondents West Mont Home Health Services, Inc. and West Mont Home Management Services, Inc. (collectively referred to as "West Mont"); Orkin Extermination Company, Inc. (Orkin); and Ep Co., Inc. and Rofan Services, Inc. d/b/a DowElanco (collectively referred to as "DowElanco"), for injuries Appellants allegedly suffered when Orkin applied a pesticide manufactured by DowElanco at the West Mont building where plaintiffs worked. The District Court for the First Judicial District, Lewis and Clark County, granted summary judgment in favor of DowElanco on the basis that Appellants' claims are preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). We reverse and remand for further proceedings consistent with this opinion.
2 Appellants present the following issues for review:
3 . Whether Appellants' failure to warn claims, pleaded in negligence, strict liability, and breach of express warranty, are preempted by FIFRA because they are based upon or implicate the pesticide's labels.
4 . Whether the failure to warn claims in Appellants' negligence and strict liability theories of liability are preempted by FIFRA when Appellants were not purchasers or users of the pesticide and were, instead, unwitting bystanders who never saw the pesticide's labels and who suffered injury from the use of the pesticide by others.
5 . Whether Appellants' strict liability for design defect theory of liability is preempted by FIFRA.
6 Because we conclude that Issue 1 is dispositive, we do not address Issues 2 and 3.
Factual and Procedural Background
7 Appellants worked in a building in Helena owned by their employer, West Mont. Sometime in 1991, West Mont ordered that all windows in the building be closed and that the operating cranks for the windows be removed, thereby preventing fresh air ventilation of the building. Between 1991 and 1994, Orkin applied various pesticides, collectively referred to here as Dursban, to the interior of the West Mont building every three to six weeks without prior or subsequent warnings to Appellants. These pesticides were manufactured and sold by DowElanco.
8 Each of the Appellants began suffering from various physical ailments and were forced to leave their employment on advice of their physicians. Appellant Hayes worked in the West Mont building until June 28, 1993; Appellant Owen worked until July 12, 1993; Appellant Truesdell worked until August 24, 1993; and Appellant Sleath worked until May 1994. Appellants first learned that they were routinely exposed to Dursban in 1995 when they requested information from West Mont about the pesticide applications. Prior to 1995, Appellants were unaware that they had been exposed to Dursban.
9 Dursban is DowElanco's registered trademark for a group of insecticides developed, manufactured, and marketed by DowElanco. The active ingredient in each of the Dursban products is a synthetic chemical compound known as chlorpyrifos which is one of a group of compounds known as organophosphates. Organophosphates are synthetic chemical relatives of the nerve gases used in World Wars I and II. They are central and peripheral nervous system poisons that inhibit the action of the enzyme acetylcholinesterase.
10 Depending on exposure frequency and dosage levels, the toxicity to the central and peripheral nervous systems can cause symptoms such as headaches, dizziness, flu-like malaise, urinary frequency, confusion and d
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