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JENKINS v. AMCHEM PRODUCTS12/16/1994
The opinion of the court was delivered by
Plaintiff Gary Jenkins instituted this products liability action against defendants Amchem Products, Inc., Union Carbide Agricultural Products Company, Rhone Poulenc Ag Company, Platte Chemical Company, and Farmland Industries, Inc., alleging that his long-term use of the herbicide chemical commonly known as 2,4-D caused or contributed to his development of non-Hodgkin's lymphoma. The trial court ruled that if plaintiff proved defendants' products cause cancer, plaintiff would have established a prima facie strict liability claim without having to prove a more specific defect. However, the trial court granted summary judgment to defendants and determined that plaintiff's failure to warn and strict liability claims were preempted by the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA), 7 U.S.C. ยง 136 et seq. (1988). Plaintiff appeals and defendants cross-appeal.
Gary Jenkins has farmed and ranched for many years. During this time, he was exposed to chlorophenoxy herbicides, which have as an active ingredient the chemical commonly known as 2,4-D, manufactured or produced by the defendants. Chlorophenoxy herbicides are used to kill broad leaf weeds in fields and brush in pastures. In December 1990, plaintiff was diagnosed with non-Hodgkin's lymphoma.
Plaintiff instituted this action in the trial court, alleging that the defendants' products were defective and unreasonably dangerous and that the products either caused or were substantial factors in causing plaintiff's disease. Plaintiff's expert witness stated that the defendants' 2,4-D herbicide products were contaminated with toxic substances, including dioxin. Plaintiff's expert
opined it was more probable than not that plaintiff's long-term exposure to 2,4-D significantly contributed to the causation of his disease, but the expert could not state "that the failure to manufacture 2,4-D, free of toxic contaminants . . . is what caused Gary Jenkins' non-Hodgkin's lymphoma." The pretrial order set forth the following theories of liability: (1) negligence; (2) failure to adequately test the product to make sure it was safe and/or free from harmful contaminants; (3) failure to warn or properly communicate to plaintiff that long-term exposure to the products greatly increased his risk of developing non-Hodgkin's lymphoma; and (4) strict liability, as stated in PIK Civ.2d 13.21 (1993 Supp.), because chlorophenoxy herbicides were defective and unreasonably dangerous in that the products were dangerous to an extent beyond that which would be contemplated by the ordinary consumer and were defective because they were incapable of being produced free from harmful contaminants.
The defendants filed a motion to dismiss for failure to state a claim upon which relief could be granted, arguing that plaintiff's claims based on inadequate warnings were preempted by FIFRA. FIFRA covers pesticides, insecticides, slimicides, herbicides (2,4-D is a herbicide), and other chemicals. The court granted the motion to dismiss "as to [plaintiff's] failure to warn theory based upon labeling & packaging only due to pre-emption" by FIFRA.
The defendants also sought summary judgment, making the same argument as to plaintiff's entire cause of action for failure to warn. The trial court granted partial summary judgment, holding that the preemption extended to plaintiff's claims based on failure to warn by advertisements or other generalized means; by press releases or advisory circulars; by appropriate store displays, shelf placards, or counter signs; by limiting sale of the product so the sale does not exceed the scope of potential buyers who would not be adequat
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