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Sleath v. West Mont Home Health Services12/28/2000
gation brief significant weight is a perilously slim basis on which to premise overruling our well-reasoned decision in McAlpine.
70 Nor do I find Medtronic either useful or persuasive here and this no doubt explains why it was not called to our attention in McAlpine. As the Court notes several times, the portion of Medtronic on which it relies is a four-Justice plurality, clearly not controlling authority even if the MDA and FIFRA contained more similar preemption language. Indeed, it is my view, as it was the view of the California Supreme Court in Etcheverry, that Medtronic is distinguishable on the basis that Congress gave the Food and Drug Administration a unique role in determining the scope of preemption under the MDA. Congress did not give the EPA an analogous role in implementing FIFRA. See Etcheverry, 993 P.2d at 373 (citations omitted).
71 I would hold that Medtronic does not undermine our conclusion in McAlpine that FIFRA preempts state failure to warn claims. In doing so, I would join the overwhelming majority of courts which have examined the question in the wake of Medtronic. See, e.g., Grenier v. Vermont Log Bldgs., Inc. (1st Cir. 1999), 96 F.3d 559; Oliver v. Reckitt & Colman, Inc. (M.D. Fla. 1998), 12 F.Supp.2d 1287; Hawkins v. Leslie's Poolmart (D. N.J. 1997), 965 F.Supp. 566; Kuiper v. American Cyanamid Co. (E.D. Wis. 1997), 960 F.Supp. 1378; Koch v. Shell Oil Co. (D. Kan. 1997), 173 F.R.D. 288; Etcheverry, 993 P.2d at 373; Ackerman v. American Cyanamid Co. (Iowa 1998), 586 N.W.2d 208; Ackles v. Luttrell (Neb. 1997), 561 N.W.2d 573, cert. denied, 522 U.S. 928 (1997); Didier v. Drexel Chemical Co. (Wash. App. 1997), 938 P.2d 364; Lewis v. American Cyanamid Co. (N.J. 1998), 715 A.2d 967; Sherman v. Claire Mfg. Co. (N.Y. App. Div. 1997), 657 N.Y.S.2d 453.
72 In my view, no showing has been made that McAlpine is "manifestly wrong." See Gatts, 279 Mont. at 51, 928 P.2d at 119. Therefore, I would apply stare decisis here, reaffirm McAlpine and affirm the District Court. I dissent from the Court's failure to do so.
KARLA M. GRAY
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