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September 24, 1994

MONSANTO COMPANY, et al. Defendants,

The opinion of the court was delivered by: THOMAS J. MCAVOY

 This action was originated by Plaintiff's decedent who filed the instant action on December 19, 1991. The decedent's original complaint sounded in negligence, strict liability, and breach of warranty; and was primarily predicated upon inadequate labeling of pesticides. On November 8, 1993, this Court granted Plaintiff leave to amend and substitute, and ordered partial summary judgment for Defendants on many of Plaintiff's claims. On December 23, 1993, Plaintiff filed and served her amended and supplemental complaint containing 32 counts. Defendants again move for summary judgment of Plaintiff's entire complaint.


 From March of 1988 through March of 1990, Plaintiff's decedent, Richard Higgins, worked for third-party defendant Monroe Tree Service. During his employment, Higgins was exposed to a number of pesticides and insecticides manufactured by Defendants. In 1990, Higgins was diagnosed with esophageal cancer; this cancer spread throughout his body and on November 20, 1992, it killed him. Decedent originally brought this suit in state court alleging that Defendants were liable for negligence, breach of an express warranty, breach of an implied warranty, and strict liability in tort. Defendants removed the case based on diversity and moved for dismissal of the complaint on two grounds: first, that Plaintiff's request for representative substitution pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure did not meet the required deadline; second, that the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA") precludes Plaintiff's state tort law claims. 7 U.S.C. § 136 et. seq.

 On November 8, 1993, this Court entertained Defendants' motions for summary judgment and Plaintiff's cross-motion to amend and substitute. The Court granted Plaintiff leave to file and serve an Amended Complaint. In ruling on Defendants' summary judgment motions, the Court held:

5. The motions of defendants and third party defendant for summary judgment dismissing the complaint and crossclaims based upon preemption under FIFRA are granted to the extent that all plaintiff's claims which are predicated upon a theory of inadequate labeling or failure to adequately warn the plaintiff of dangers alleged to be associated with use of the products manufactured and/or sold by the defendants are dismissed with prejudice.
6. The motions for summary judgment are denied in part, with leave to renew on the issue of whether, and if so to what extent, any of the claims asserted by plaintiff are predicated upon theories not involving allegations of inadequate labeling or failure to warn.

 Order dated November 26, 1993.

 On December 23, 1993, Plaintiff filed and served her Amended and Supplemental Complaint. The Complaint contains 32 counts, including the added counts of loss of consortium and wrongful death. Plaintiff's amended complaint also contains additional changes to the original complaint which were not approved by the Court. The Court's Order dated November 26, 1993 specified that Plaintiff was granted an enlargement of time for substitution of a party plaintiff, substitution of Nancy Higgins as plaintiff, and leave to amend the complaint "to the extent it seeks permission to add a cause of action for wrongful death. " Order dated November 26, 1993 (emphasis added). Further, Plaintiff requested leave to amend the complaint only as to include claims of pain and suffering and wrongful death. All additional allegations are beyond the scope of the Court's order; they are violative of Fed. R. Civ. P. 15(a) and are therefore invalid. The only changes made in the amended complaint which are valid are those substituting Nancy Higgins for the now-deceased plaintiff and those adding causes of action for wrongful death. All other changes are disregarded.

 Plaintiff's complaint fundamentally asserts three causes of action. The first count alleges that Defendants are negligent due to: failure to warn, inadequate labeling, inadequate testing, and failure to follow the requirements of FIFRA, 7 U.S.C. § 136 et. seq. Count two alleges that Defendants breached an express and implied warranty; that the ingredients were not fit for the purpose intended and/or were not of merchantable quality. Count three alleges that Defendants are strictly liable in tort for the injuries to Plaintiff due to the defective nature of the products they introduced into the stream of commerce.


 The defendants in this case move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c) provides that the court may grant summary judgment where there are no genuine issues of material fact for trial. Fed.R.Civ.P. 56(c). If there are no genuine issues, the movant is entitled to judgment as a matter of law. When the movant meets this standard, the opposing party must present sufficient facts to demonstrate that there exists some genuine issues of material fact in order to defeat the movant's motion for summary judgment. The substantive law will determine which facts are material, and an issue is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). To determine whether such a situation exists, the court will view the evidence in light most favorable to the party opposing the motion. Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir. 1987). Where, as here, the opposing party bears the ultimate burden of proof on a particular issue, that party can defeat a properly supported summary judgment motion by producing specific facts which demonstrate a genuine issue of material fact on that issue. See Montana v. First Federal Savings and Loan Asso., 869 F.2d 100, 103 (2d Cir. 1989); see also Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). With this standard in mind, the Court addresses Defendants' motions.

 In their motions for summary judgment, Defendants argue that the state law claims brought by Plaintiff are preempted by FIFRA. FIFRA was initially enacted in 1947, as a licensing and labeling law, and now comprises a "comprehensive regulatory statute" for the registration and use of pesticides. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 992, 104 S. Ct. 2862, 2867, 81 L. Ed. 2d 815 (1984). Under FIFRA, no pesticide may be sold or distributed unless it has been registered by the. Environmental Protection Agency ("EPA"). 7 U.S.C. § 136a(a). While FIFRA does contemplate the continued involvement of the States in the regulation of the sale and use of pesticides, it expressly mandates that the States are barred from imposing labeling requirements different from those required by EPA. See 7 U.S.C. § 136v(a). The relevant provision of FIFRA is section 136v, which states in pertinent part:

(a) In General
A State may regulate the sale or use of any federally registered pesticide or device in the State, but . . .
(b) Uniformity
Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.

 7 U.S.C § 136v. *fn1"

 Although the language of 7 U.S.C § 136v is unambiguous, application of this provision to the instant case is not straightforward. To best effectuate congressional intent the Court must make its interpretation of 7 U.S.C. § 136v in light of the history, statutory scheme, and purpose of FIFRA.

 Since its initial passage in 1947, FIFRA has undergone several significant transformations, each reflecting dissatisfaction with existing mechanisms for limiting potential health risks posed by chemical pesticides. See Burke v. Dow Chemical, 797 F. Supp. 1128 (E.D.N.Y. 1992). In its current form, FIFRA requires that EPA rely on manufacturers for information about the safety of their products. 7 U.S.C. § 136a(c). However, much of the information known to the manufacturer is withheld from the public; indeed, "the production of data to support a pesticide registration is controlled by the registrant, and this data may be withheld from public scrutiny as a trade secret." Burke, 797 F. Supp. at 1134 (quoting Tybe A. Brett & Jane E.R. Potter, Risks to Human Health Associated with Exposure to Pesticides at the Time of Application and the Role of the Courts, 1 Vill. Envtl. L.J. 355, 363 (1990)).

 Unless alerted by the manufacturer to dangers or the need for special restrictions in the use of the product, it is unlikely that EPA will assume the burden of deciding whether a product should not be sold to the public. Id at 1135. Although no insecticide may be sold in the United States unless registered with EPA, it is the applicants for registration who are responsible for submitting performance data and draft product labels to EPA. 7 U.S.C. § 136a(a). The degree of specificity that must be submitted depends on the nature of the pesticide and its intended use. See 40 C.F.R. § 158.100-158.740.

 Based on the information provided by the registrant, EPA must register the product if it determines that:

(A) its composition is such as to warrant the proposed claims for it;
(B) its labeling and other material required to be submitted comply with the requirements of this subchapter;
(C) it will perform its intended function without unreasonable adverse effects on ...

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