United States District Court, D. Hawaii
Nena Ansagay, on behalf of herself, The Estate of Benjamin
O.K. Ansagay, and their minor child, K.A., K. A., Plaintiffs:
Brian K. Mackintosh, Michael Jay Green, LEAD ATTORNEYS,
Agrosciences LLC, Defendant: Dean T. Barnhard, LEAD ATTORNEY,
PRO HAC VICE, Barnes & Thornburg, Indianapolis, IN; Donna C.
Marron, Kenneth S. Robbins, Margery S. Bronster, LEAD
ATTORNEYS, Bronster Fujichaku Robbins, Honolulu, HI; Joseph
G. Eaton, LEAD ATTORNEY, PRO HAC VICE, Barnes & Thornburg
LLP, Indianapolis, IN.
Estate of Ansagay, Benjamin O.K., Estate Plaintiff: Brian K.
Mackintosh, Michael Jay Green, LEAD ATTORNEYS, Honolulu, HI.
DENYING MOTION FOR SUMMARY JUDGMENT
Oki Mollway, United States District Judge.
the court is Defendant Dow Agrosciences LLC's Motion for
Summary Judgment against Plaintiffs. Plaintiff Nena Ansagay
brought a suit individually; on behalf of the estate of her
deceased husband, Benjamin O.K. Ansagay; and on behalf of
their minor child, in connection with the death of Benjamin
Ansagay, which Nena Ansagay attributes to his contact with
Dursban TC, a pesticide manufactured by Dow. Dow contends
that all the state-law claims are preempted under the Federal
Insecticide, Fungicide, and Rodenticide Act ("
reasons discussed below, the court denies Dow's motion.
developed, manufactured, marketed, and distributed an
insecticide called " Dursban TC," which has as an
active ingredient the chemical chlorpyrifos. See ECF No.
17-1, PageID # 204.
1981, Dow registered Dursban T.C. with the United States
Environmental Protection Agency, pursuant to FIFRA. See ECF
No. 16-1, PageID # 170. FIFRA is a comprehensive regulatory
statute regulating the use, sale, and labeling of pesticides.
See 7 U.S.C. § 136 et seq. FIFRA requires a manufacturer
seeking to market a pesticide to first petition the EPA for
registration. As part of the petition process, the
manufacturer must submit data about the pesticide, as well as
a proposed label. See 7 U.S.C. § 136a(c)(1)(C), (F).
T.C. was sold with an EPA-approved product label that
included the following words: " WARNING," "
MAY BE FATAL IF SWALLOWED," and " EXCESSIVE
ABSORPTION THROUGH SKIN MAY BE FATAL." See ECF No. 17-3,
PageID #s 207-08. The label instructed users to observe the
following handling procedures for safety:
Wear protective clothing when using or handling this product
to help avoid exposure to eyes and skin. As a minimum,
chemical workers' goggles, neoprene or natural rubber
gloves and footwear, a long-sleeved shirt and long-legged
pants or coveralls are recommended. To avoid breathing spray
mist during application in confined areas, wear a mask or
respirator of a type recommended by [the National Institute
for Occupational Safety and Health] for filtering spray mists
and organic vapors.
See id. The label also included a " Warranty
Limitations and Disclaimer" section that said, "
[T]his product conforms to the chemical description on the
label and is reasonably fit for the purposes stated on the
label when used in strict accordance with the directions
therein under normal conditions of use." See id., PageID
1988 to 1991, Mr. Ansagay, a pesticide applicator for
XTermco, Inc., used Dursban T.C. on an almost daily basis.
See ECF No. 32, PageID # 809. Before his death, he admitted
that he had not worn a respirator when applying Dursban TC,
notwithstanding the instruction on the safety procedures on
its label. See ECF No. 24, PageID # 536. According to Mr.
Ansagay's deposition testimony in a related worker's
compensation case against XTermco, he did not believe he
needed to wear a respirator because he had been told by the
distributors of Dursban T.C. that the pesticide was safe for
humans and would " flush out" of his body within a
week. See id. One of Mr. Ansagay's co-workers
corroborated this statement, testifying that "
representatives that sold Dursban T.C. to XTermco, Inc., told
me and other ground treatment workers, that Dursban was safe
to use because if it got in your system it would flush out of
your system within one week." ECF No. 20-3, PageID #
423. The distributors that allegedly sold Dursban T.C. to
XTermco were Defendant Van Waters & Rogers Corporation and
Brewer Environmental Industries. See ECF No. 20-2, PageID #
421. Mrs. Ansagay alleges that Dow intended that sellers like
Van Waters, and users like Mr. Ansagay, would rely on claims
Dow published stating that Dursban T.C. was safe. See ECF No.
32, PageID #s 809-10.
Ansagay alleges that Mr. Ansagay began to suffer from an
assortment of health problems after his employment with
XTermco ended. From 1999 to 2011, Mr. Ansagay was treated for
depression. See id., PageID # 811. During this time,
Mr. Ansagay was also diagnosed with hypogonadism and male
infertility, which was originally attributed to a genetic
disorder. See id. In 2011, Mr. Ansagay learned that
he had contracted lung cancer. See id.
November 21, 2013, Mr. Ansagay filed a worker's
compensation claim against XTermco that ended with
XTermco's insurer accepting liability. See id., PageID #
812. Mr. Ansagay died on August 15, 2014, from lung cancer.
See id., PageID # 809.
April 2, 2015, Mrs. Ansagay, on behalf of herself, Mr.
Ansagay's estate, and their minor child, instituted a
civil action against Dow in the Circuit Court of the First
Circuit, State of Hawaii, Civil No. 15-1-0602-04. See ECF No.
1-1, PageID # 11.
18, 2015, Dow removed the action to this court. See ECF No.
Complaint, Mrs. Ansagay alleges that Mr. Ansagay's
exposure to Dursban T.C. resulted in his infertility,
depression, hypogonadism, lung cancer, and death. See ECF No.
32, PageID # 806. The Complaint asserts claims against Dow
for: (1) wrongful death; (2) negligence that caused Mr.
Ansagay's cancer; (3) negligence that caused Mr.
Ansagay's infertility and depression; (4) breach of
express warranties; (5) breach of implied warranty; (6)
strict product liability; (7) defective design, testing,
and/or manufacturing; (8) negligent infliction of emotional
distress; and (9) intentional infliction of emotional
distress. See id., PageID #s 816-21.
STANDARD OF REVIEW.
judgment shall be granted when " the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a) (2010). See Addisu v. Fred Meyer,
Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). A movant must
support his position that a material fact is or is not
genuinely disputed by either " citing to particular
parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations (including those made for the
purposes of the motion only), admissions, interrogatory
answers, or other materials" ; or " showing that
the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact." Fed.R.Civ.P.
56(c). One of the principal purposes of summary judgment is
to identify and dispose of factually unsupported claims and
defenses. Celotex Corp. v. Catrett, 477 U.S. 317,
323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary
judgment must be granted against a party that fails to
demonstrate facts to establish what will be an essential
element at trial. See id. at 323. A moving party without the
ultimate burden of persuasion at trial--usually, but not
always, the defendant--has both the initial burden of
production and the ultimate burden of persuasion on a motion
for summary judgment. Nissan Fire & Marine Ins. Co. v.
Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).
burden initially falls on the moving party to identify for
the court those " portions of the materials on file that
it believes demonstrate the absence of any genuine issue of
material fact." T.W. Elec. Serv., Inc. v. P. Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987)
(citing Celotex Corp., 477 U.S. at 323). " When the
moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)
nonmoving party must set forth specific facts showing that
there is a genuine issue for trial. T.W. Elec. Serv.,
Inc., 809 F.2d at 630. At least some "
'significant probative evidence tending to support the
complaint'" must be produced. Id. (quoting
First Nat'l Bank of Ariz. v. Cities Serv. Co.,
391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).
See Addisu, 198 F.3d at 1134 (" A scintilla of
evidence or evidence that is merely colorable or not
significantly probative does not present a genuine issue of
material fact." ). " [I]f the factual context makes
the non-moving party's claim implausible, that party must
come forward with more persuasive evidence than would
otherwise be necessary to show that there is a genuine issue
for trial." Cal. Arch'l Bldg. Prods., Inc. v.
Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.
1987) (citing Matsushita Elec. Indus. Co., 475 U.S.
at 587). Accord Addisu, 198 F.3d at 1134 (" There must
be enough doubt for a 'reasonable trier of fact' to
find for plaintiffs in order to defeat the summary judgment
evidence and inferences must be construed in the light most
favorable to the nonmoving party. T.W. Elec. Serv., Inc., 809
F.2d at 631. Inferences may be drawn from underlying facts
not in dispute, as well as from disputed facts that the judge
is required to resolve in favor of the nonmoving party.
Id. When " direct evidence" produced by
the moving party conflicts with " direct evidence"
produced by the party opposing summary judgment, " the
judge must assume the truth of the evidence set forth by the
nonmoving party with respect to that fact." Id.
motion contends that Mrs. Ansagay's tort claims are all
preempted under FIFRA because it would be impossible for Dow
to comply with both FIFRA and the state-law duties that Mrs.
Ansagay seeks to impose. See ECF No. 16, PageID # 161. This
court disagrees. FIFRA does not preempt Mrs. Ansagay's
derives from the Supremacy Clause in the United States
Constitution, which provides:
This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or
which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges
in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary
U.S. Const. art. VI, cl. 2.
United States Supreme Court has noted two cornerstones of
preemption jurisprudence. Wyeth v. Levine, 555 U.S.
555, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009). First, " the
purpose of Congress is the ultimate touchstone in every
pre-emption case." Id. at 565 (quoting
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116
S.Ct. 2240, 135 L.Ed.2d 700 (1996) (internal quotation marks
omitted)). Second, preemption analysis begins with the "
presumption that Congress does not intend to supplant state
law." De Buono v. NYSA-ILA Med. & Clinical Servs.
Fund, 520 U.S. 806, 813, 117 S.Ct. 1747, 138 L.Ed.2d 21
(1997); see also Tillison v. Gregoire, 424 F.3d
1093, 1098 (9th Cir. 2005). In analyzing preemption, a court
must keep in mind that " the historic police powers of
the States were not to be superseded by the Federal Act
unless that was the clear and manifest purpose of
Congress." City of Columbus v. Ours Garage & Wrecker
Serv., Inc., 536 U.S. 424, 426, 122 S.Ct. 2226, 153
L.Ed.2d 430 (2002) (quotation marks and brackets omitted).
Accordingly, courts confronted with two plausible
interpretations of a statute " have a duty to accept the
reading that disfavors pre-emption." Id.;
see also Wyeth, 555 U.S. at 565; Cipollone v.
Liggett Group, Inc., 505 U.S. 504, 518, 112 S.Ct. 2608,
120 L.Ed.2d 407 (1992).
law may be preempted by federal law in three ways: (1)
express preemption, which exists when Congress has explicitly
defined the extent to which its enactments preempt state law;
(2) implied field preemption, which exists when state law
attempts to regulate conduct in a field that Congress
intended federal law to occupy exclusively; and (3) implied
conflict preemption, which exists when state law stands as an
obstacle to the accomplishment and execution of the full
purpose and objectives Congress had, or when compliance with
both state and federal requirements is impossible. See
Indus. Truck Ass'n, Inc. v. Henry, 125 F.3d
1305, 1309 (9th Cir. 1997) (citing English v. Gen. Elec.
Co., 496 U.S. 72, 78-80, 110 S.Ct. 2270, 110 L.Ed.2d 65
(1990)); accord Whistler Invs., Inc. v. Depository Trust
& Clearing Corp., 539 F.3d 1159, 1164 (9th Cir. 2008)
(" Congress has the constitutional power to preempt
state law, and may do so either expressly--through clear
statutory language--or implicitly." (citations
omitted)). With respect to each type of preemption, "
Congressional intent to preempt state law must be clear and
manifest." Indus. Truck Ass'n, 125 F.3d at
as happens here, Congress has included an express preemption
clause in the applicable federal statute, the court must look
to the text of that provision to determine the scope of
preemption. See Lohr, 518 U.S. at 484-85.
When Congress has considered the issue of pre-emption and has
included in the enacted legislation a provision explicitly
addressing that issue, and when that provision provides a
" reliable indicium of congressional intent with respect
to state authority," " there is no need to infer
congressional intent to pre-empt state laws from the
substantive provisions" of the legislation. Such
reasoning is a variant of the familiar principle of
expression unius est exclusio alterius: Congress'
enactment of a provision defining the pre-emptive reach of a
statute implies that matters beyond that reach are not
Cipollone, 505 U.S. at 517. In discerning the proper
scope of an express preemption provision, courts " focus
on the plain wording of the clause, which necessarily
contains the best evidence of Congress' pre-emptive
intent." CSX Transp., Inc. v. Easterwood, 507
U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993).
The Federal Insecticide, Fungicide, and Rodenticide
FIFRA, a pesticide may not be sold in the United States
unless it is first registered with the EPA. As noted earlier
in this order, the petition for registration must include
data about the pesticide, as well as a proposed label. See 7
U.S.C. § 136a(c)(1)(C), (F).
defines " label" as " the written, printed, or
graphic matter on, or attached to, the pesticide or device or
any of its containers or wrappers." 7 U.S.C. §
136(p)(1). The term " labeling" includes:
all labels and all other written, printed, or graphic
(A) accompanying the pesticide or device at any time; or
(B) to which reference is made on the label or in literature
accompanying the pesticide or device, except to current
official publications of the Environmental Protection Agency,
the United States Departments of Agriculture and Interior,
the Department of Health and Human Services, State experiment
stations, State agricultural colleges, and other similar
Federal or ...