Blueberry farmers in New Jersey have been waging a court battle for more than a decade against Novartis Crop Protection Inc., the maker of a pesticide known as AG600, which, they say, killed some of their plants and caused long-term damage to others.
Now, for the second time, a federal appeals court has revived the suit and declared that the lower court improperly dismissed the farmers' state law claims as pre-empted by the Federal Insecticide, Fungicide and Rodenticide Act, or FIFRA.
The 3rd U.S. Circuit Court of Appeals concluded that the farmers, in their fraud and negligent misrepresentation claims, were not suing over any alleged flaws in the federally regulated warning label, but instead were complaining about alleged misrepresentations in Novartis' marketing brochure.
Senior U.S. Circuit Judge Walter K. Stapleton found that a manufacturer's brochure "does not qualify as ‘labeling' under FIFRA," and that U.S. District Judge Joseph H. Rodriguez of the District of New Jersey had therefore erred in holding that the claims were pre-empted.
In addition to the fraud and misrepresentation claims, Stapleton also found that the farmers should be allowed to pursue two products liability claims -- design defect and failure to warn -- because those, too, would not be pre-empted by FIFRA.
"Given that Congress in FIFRA imposed a generalized duty to include in one's labeling any warning statement necessary to protect plant life and the fact that the EPA has not seen fit to narrow that duty, we find no basis for concluding that New Jersey law imposes a duty to warn different than or in addition to the scope of the requirement imposed by FIFRA," Stapleton, joined by Judge D. Michael Fisher, wrote in Indian Brand Farms Inc. v. Novartis Crop Protection Inc.
In a partial dissent, Judge Thomas M. Hardiman said he would have upheld the dismissal of the products liability claims because they were premised on an alleged design flaw that occurred only when the farmers mixed the pesticide with two fungicides.
Hardiman said he agreed with the majority's holding that the lower court had erred in its preemption analysis.
But Hardiman said he would nonetheless have upheld the dismissal of the products liability claims because the farmers' decision to "tank mix" the Novartis pesticide with two other chemicals was not a "foreseeable use." Allowing such claims, Hardiman said, would effectively force Novartis to test its product for compatibility with other manufacturers' products -- a result that Hardiman said is "both unfair and unsound as a matter of public policy."
But the farmers' lawyer, Scott K. Attaway of Kellogg Huber Hansen Todd Evans & Figel in Washington, D.C., argued that the practice of tank mixing pesticides and fungicides was both a common one and well known to Novartis.
Stapleton sided with the plaintiffs on that point, finding that the "evidence is sufficient for a jury to conclude that tank mixing pesticides and fungicides was a reasonably foreseeable practice."
Under New Jersey products liability law, Stapleton said, the threshold burden for the plaintiff is to show that a use is "objectively foreseeable," and that the next step of the riskutility analysis requires the fact-finder to determine whether the reasonably foreseeable risk of harm posed by the reasonably foreseeable use of the product could have been reduced or avoided by a reasonable alternative design." In the suit, farmers complained that Novartis distributed a brochure that touted AG600 as safer and more effective than its previous products. The 17-page, color brochure promised that AG600 had "the same powerful product performance" as prior Novartis products and "increased safety to users and the environment," as well as "better crop safety" with "equal performance."
Rodriguez, in dismissing the suit, concluded that the brochure must be considered part of the product's labeling and that any claims relating to the brochure would therefore be pre-empted by FIFRA.
Stapleton disagreed, saying the AG600 brochure "cannot be read as providing a supplement to the AG600 label."
Instead, Stapleton said, "its function is to point out the advantages of the new product to wholesalers and retailers, as well as farmers." Notably absent from the brochure, Stapleton said, were any instructions for use.
"If we were to construe the term 'labeling' as including the AG600 brochure, then all sales and marketing materials would necessarily be included within the scope of that term," Stapleton wrote.
"We are confident that such was not the intent of Congress," Stapleton wrote.
Novartis was represented in the appeal by attorneys John P. Mandler, Bruce Jones and Kristin R. Eads of Faegre & Benson in Minneapolis.
Mandler could not be reached for comment. Paul Minehart, a spokesman for Syngenta Corp., the parent company for Novartis Crop Protection, said in a statement: "While we're pleased that the appellate court upheld several parts of the district court's ruling, we're disappointed with their decision to overturn other parts as we still believe the case has no merit. We intend to defend ourselves vigorously."