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Ansagay v. Dow Agrosciences LLC

United States District Court, D. Hawaii

December 29, 2015

NENA ANSAGAY, et al., Plaintiffs,

          For 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, Honolulu, HI.

         For Dow 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.

         For The Estate of Ansagay, Benjamin O.K., Estate Plaintiff: Brian K. Mackintosh, Michael Jay Green, LEAD ATTORNEYS, Honolulu, HI.


         Susan Oki Mollway, United States District Judge.


         Before 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 (" FIFRA" ).

         For the reasons discussed below, the court denies Dow's motion.

         II. BACKGROUND.

         Dow 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.

         In 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).

         Dursban 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 #s 209-10.

         From 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.

         Mrs. 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.

         On 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.

         On 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.

         On May 18, 2015, Dow removed the action to this court. See ECF No. 1.

         In her 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.[1]


         Summary 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).

         The 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) (footnote omitted).

         The 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 motion." ).

         All 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.

         IV. ANALYSIS.

         Dow's 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 claims.

         A. Preemption.

         Preemption 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 notwithstanding.

U.S. Const. art. VI, cl. 2.

         The 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).

         State 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 1309.

         When, 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 pre-empted.

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).

         B. The Federal Insecticide, Fungicide, and Rodenticide Act.

         Under 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).

         FIFRA 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 matter--
(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 ...

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