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July 16, 1992

MARY ELLEN BURKE and KEVIN BURKE, infants, by their mother and natural guardian, LORRAINE A. BURKE, LORRAINE A. BURKE, individually and KEVIN BURKE, individually, Plaintiffs, against THE DOW CHEMICAL CO., KENCO CHEMICAL & MFG. CORP., and CORE MARKETS, INC., Defendants.

The opinion of the court was delivered by: JACK B. WEINSTEIN

 Jack B. Weinstein, District Judge:

 The claim is that two children are brain damaged because their mother was exposed to a household insecticide while pregnant with them. Relying on state tort law, the parents sue both the manufacturer of the active ingredient and of the final product. Defendants move for summary judgment on the ground that the suit is preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and corresponding regulations. See 7 U.S.C. §§ 136-136y; 40 C.F.R. §§ 152-86 (1990).

 The issue in the case is whether these and other FIFRA provisions preclude common law actions against insecticide manufacturers and retailers. The question is particularly important and timely since the United States Supreme court has just spoken on the issue of tort preemption in Cipollone v. Liggett Group, Inc., U.S. , 60 U.S.L.W. 4703 (June 24, 1992). For the reasons indicated below, none of the state law tort actions are preempted in their entirety. The motions for summary judgment therefore must be denied.


 Defendant Dow Chemical Company produces chlorpyrifos, sold under the trade name Dursban. Dursban has been registered under FIFRA as a pesticide since 1981 and is packaged in containers bearing an EPA-approved label. Dursban is not an "end-use" product: Dow sells it exclusively to insecticide manufacturers.

 Defendant Kenco Manufacturing, a subsidiary of defendant Core Markets, Inc., uses Dursban and a solvent, Xylene, in manufacturing "Rid-A-Bug Flea & Tick Killer." Rid-A-Bug is sold both to professional exterminators and directly to consumers in home dispensers to combat flea and tick infestation. The product is registered with EPA and sold with an EPA-approved label that includes directions for indoor and outdoor use, a money-back guarantee, and the following warnings:


 Precautionary Statements

 Human (& Domestic Animal) Hazards

 May be fatal if swallowed, inhaled or absorbed through skin. Do not breathe spray mix. Do not get into eyes, on skin or clothing. In case of contact with skin or eyes, flush with water and get medical attention for eyes. Wash with soap and water after handling and before eating or smoking. Avoid contamination of feed and foodstuffs. Do not apply or allow to drift to areas occupied by unprotected humans or beneficial animals. Do not allow children in treated areas until surfaces are dry. Do not use in edible product areas of food processing plants, restaurants, and other areas where food is commercially prepared or processed. Do not use in serving areas while food is exposed.

 Environmental Hazards

 This product is toxic to fish. Do not contaminate water by cleaning of equipment or disposal of wastes.

 Physical or Chemical Hazards

 Disposal: Do not reuse empty container. Wrap container and put in trash collection.

 Plaintiff Lorraine Burke alleges that on several occasions in 1986 and 1987 while she was pregnant, both she and a professional exterminator sprayed "Rid-A-Bug" in her home on Long Island. She claims that the sprayings, by exposing her to both Dursban and Xylene, caused her children to be born with severe brain damage and other injuries.


 For purposes of defendants' motions for summary judgment, it is assumed that, on the facts alleged, plaintiffs have legally cognizable state causes of action. The question is whether Congress has exercised its authority under the Supremacy Clause of the federal Constitution to bar plaintiffs' access to otherwise available state common law remedies.

 By contrast, the federal government has never adopted comprehensive legislation for compensating those injured by hazardous products. It is a relative newcomer to this area and its tentative forays into the field have mainly been designed to ensure that products can pass freely from one state to another without the need for repackaging, although it has excluded from all commerce certain dangerous products, as in the field of drugs and toys. In most instances, federal legislation does not arrange for tests of products to determine whether they are dangerous to pregnant women or anyone else. Nor do the agencies of the federal government put their seal of approval on products such as flea and tick sprays. Consumers and others must still look to the great font of state tort law for protection against harmful toxic substances. Too ready a tendency to declare the state protective shield replaced by the still somewhat spotty federal protections will leave many injured persons without recourse. Cf., e.g., Morales v. Trans World Airlines, Inc., 119 L. Ed. 2d 157, U.S. 112 S. Ct. 2031 (1992) (in light of comprehensive national airline regulation and broad statutory preemption clause, state regulation of airline advertising invalidated).

 A. New York Products Liability Law

 Under the Supremacy and Commerce Clauses of the federal Constitution, Congress has the power to determine the reach of FIFRA and whether state tort law has any application in areas which FIFRA touches. To the extent that state tort law does operate, New York's law of conflicts determines which state's law applies. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). Here New York residents are suing for alleged torts whose locus was also New York. Under these circumstances it makes no difference where the product was manufactured or where the manufacturers were domiciled. New York tort law will apply. See Ashley v. Abbott Lab., 789 F. Supp. 552, 566-67 (E.D.N.Y. 1992) (discussing New York choice-of-law rules in tort cases); Harold Korn, The Choice-of-Law Revolution: A Critique, 83 Colum. L. Rev. 772 (1983); cf. Wilson v. Chevron Chem. Co., 1986 WL 14925, at *3 (S.D.N.Y. Dec. 17, 1986) (FIFRA preemption case; in conflict between punitive damage rules, New York choice of law rules favor application of law of state where tort occurred).

 Plaintiffs seek recovery under design defect, failure to warn and negligence theories. Their implied warranty claim is, under New York law, subsumed in the design defect claim. See Jones v. Lederle Lab., 695 F. Supp. 700, 709 (E.D.N.Y. 1988).

 1. Design Defect

 New York uses a risk-utility balancing approach in deciding whether a product is defectively designed. The test is whether,

 at the time of . . . manufacture, a reasonable person with knowledge of the defect would conclude that the risks inherent in the product's design outweighed the utility in marketing it.

 Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 108, 463 N.Y.S.2d 398, 402, 450 N.E.2d 204 (1983). plaintiffs contend that both Dursban and Rid-A-Bug presented human health risks that outweighed their value as insecticides. A jury would have to determine whether a reasonable person with knowledge of the potential for injury of the product and of the available alternatives, balancing the product's risks against its utility and costs and against the risks, utilities and cost of the alternatives, would have concluded that it should not have been marketed.

 A product may be so dangerous that it should not be sold at all, even if the warnings on the labels are as effective as they can be. Liability may also result if the product requires the special skill of a professional in its application so that it should not have been packaged and sold for consumer use. Nothing offered by the parties suggests that these and other risk-benefit balancing questions are anything but open in this litigation.

 2. Failure to Warn

 Plaintiffs further allege that Rid-A-Bug "lacked proper warning notices" of the dangers posed by the product to fetuses and that Dursban and Rid-A-Bug were "not properly tested and/or studied to determine the effects . . . on women during pregnancy and their unborn fetuses" and therefore "did not provide proper warnings."

 Manufacturers and retailers of products have a duty under New York law to provide warnings adequate to alert consumers to non-obvious dangers attendant on their use. See Frederick v. Niagara Mach. & Tool Works, 107 A.D.2d 1063, 486 N.Y.S.2d 564 (App. Div. 4th Dept. 1985); Maher v. Atlantic Transit Mix Corp., 104 A.D.2d 591, 479 N.Y.S.2d 376 (App. Div. 2d Dept. 1984). Failure to warn claims can be understood either as negligence actions or as forming a separate branch of strict products liability law under which an otherwise sound product is deemed defective because it lacks warnings. Frederick, 486 N.Y.S.2d at 565; see also James A. Henderson, Jr. & Aaron D. Twerski, Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn, 65 N.Y.U. L. Rev. 265, 271-78 (1990) (failure to warn claims more readily adjudicated as negligence than strict liability claims).

 Both negligence and strict liability standards require that a manufacturer or seller of a product who knows or should know of non-obvious dangers inherent in the foreseeable uses of its product adequately warn users of those dangers. See Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107, 463 N.Y.S.2d 398, 401, 450 N.E.2d 204 (1983). A variety of factors determine the adequacy of a warning:

 The nature of the warning and to whom it should be given depends upon a number of factors including the harm that may result from use of the product without the warnings, the reliability and adverse interest of the person to whom the notice is given, the kind of product involved and the burden in disseminating the warning.

 Frederick, 486 N.Y.S.2d at 565 (citation omitted); see also David W. Leebron, An Introduction to Products Liability: Origins, Issues and Trends, 1990 Ann. Surv. Am. L. 395, 416 (issue in failure to warn cases is whether "the reasonable user is likely to read [the warnings] and [whether] [the warnings] sufficiently alert[] the user to the nature and degree of the danger, as well as how the danger can best be avoided.").

 Although not the manufacturer of the "end use" product, Dow still may have had a duty to warn consumers of dangers posed "by Dursban, particularly if it knew how its industrial customers would use and merchandise their products. It may also be liable under New York law for injuries caused by Rid-A-Bug if plaintiffs can prove that Xylene or the mixture of Dursban and Xylene is teratogenic, that Dow knew or should have known this and that Dow failed to transmit this knowledge to its own industrial customers or to the ultimate users. See In re Agent Orange Prod. Liab. Litig., 597 F. Supp. 740, 830-32 (E.D.N.Y. 1984) (manufacturer of herbicide who was or should have been aware of dangers posed by product of another manufacturer whose product was to be combined with its own has duty to warn purchaser), aff'd, 818 F.2d 145 (2d Cir. 1987), cert. denied, 484 U.S. 1004, 108 S. Ct. 695, 98 L. Ed. 2d 647 (1988). Insofar as Dow sells Dursban only to licensed applicators, a version of the learned intermediary doctrine may apply. See Stiltjes v. Ridco Exterminating Co., 178 Ga. App. 438, 343 S.E.2d 715 (Ga. Ct. App.), aff'd, 256 Ga. 255, 347 S.E.2d 568 (Ga. 1986). These issues will likely be capable of resolution only after further discovery and a trial.

 3. Negligence

 Plaintiffs' remaining causes of action assert that the defendants were negligent in designing and manufacturing Dursban and Rid-A-Bug. So far as can now be determined, these claims are essentially embraced by the design ...

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