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Dillon v. Zeneca Corporation2/26/2002
AFFIRMED
Plaintiffs/appellants William and Tamara Dillon asserted causes of action for breach of express warranty, misrepresentation, and strict product liability arising from damage to their alfalfa crop allegedly caused by Eptam-7E, an herbicide manufactured by defendant/appellee Zeneca Corporation, sold by defendants/appellees United Agri Products and United Horticultural Supply, and recommended by defendant Gerald Wheeler, an employee of United Horticultural Supply. Appellees moved separately for summary judgment on the ground that the Dillons' state law causes of action were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.A. §§ 136 through 136y (West 1999). The Dillons argue the trial court erred in granting those motions, claiming FIFRA does not preempt their state law cause of action for failure to warn and other state law damage claims based upon off-label statements Wheeler made. For the reasons set forth below, we affirm.
Facts and Procedural History
We view the evidence and all reasonable inferences therefrom in the light most favorable to the party opposing the motion below. Hill-Shafer Partnership v. Chilson Family Trust, 165 Ariz. 469, 799 P.2d 810 (1990). The Dillons began farming in 1997 and lost their first alfalfa crop to weed infestation. Before they planted their 1998 crop, the Dillons sought advice about weed control from Tom Simmons, a neighboring farmer, who took UAP employee Wheeler to the Dillons' ranch to answer their questions about herbicides. The Dillons purchased Eptam 7-E, relying on Wheeler's assertions that there would be no waiting time between application and planting as with other herbicides and that the product would kill all weeds except Malva. The Dillons hired Simmons to apply the product to their land. Simmons testified at a deposition that he had followed the manufacturer's instructions on the Eptam 7-E label in treating the Dillons' land. The alfalfa seeds were planted immediately thereafter. About a month later, the Dillons' employee noticed that several portions of the crop appeared to be dying.
The Dillons told Wheeler they were having poor seed germination. Wheeler avowed that, after interviewing William Dillon and Simmons and after inspecting the plants, he had told William that "there was evidence that the plants had been exposed to Zeneca's Eptam 7-E" and that " ften plants grow out of the symptoms from the exposure." A few days later, Wheeler took Zeneca representative Clary Childers to the Dillon ranch to further investigate the complaint. The Dillons refused Childers's offer to reseed their fields and requested that Zeneca reimburse them $63,000. In mid-June, Dr. William McCloskey of the University of Arizona inspected the Dillons' alfalfa fields and concluded the damage to the plants had not been caused by Eptam 7-E.
The Dillons sued Zeneca and UAP, alleging causes of action for breach of express warranty and misrepresentation and asserting that Zeneca's limitation of remedy was unconscionable. In Zeneca's and UAP's separate motions for summary judgment, they argued that FIFRA preempts all state law causes of action, such as those asserted by the Dillons, that are inconsistent with a label approved by the Environmental Protection Agency (EPA). See 7 U.S.C.A. § 136v(b). The Dillons responded that FIFRA does not preempt their claims for common law misrepresentation, breach of an express warranty, strict product liability, and violations of the Arizona Uniform Commercial Code because these claims are not based upon inadequate labeling or packaging. Relying on Taylor AG Industries v. Pure-Gro, 54 F.3d 555 (9th Cir. 1995), and Barnes v. Sandoz Crop P
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