and formulating . . . are not preempted by FIFRA.'" Id. at
758 (quoting Worm, 5 F.3d at 747); see El Dorado, 165 F.3d at
609; Grenier, 96 F.3d at 565.
However, Plaintiffs are cautioned that, in crafting their
amended complaint, they will not be able to avoid FIFRA
preemption by merely calling something a design or manufacturing
defect. See Grenier, 96 F.3d at 565; El Dorado, 165 F.3d at
609. Merely to allege that something is "defectively designed or
manufactured because it was foreseeable that it would be used
[for a particular purpose] and that it was unfit for this use"
is "no more than an attack on the failure to warn against [that
particular use]" and will therefore be preempted. Grenier, 96
F.3d at 565-6. Claims of misdesign or mismanufacture which the
Court regards as thinly veiled labeling or failure to warn claims
will not stand.
Plaintiffs' also allege "misbranding and mislabeling the
chemical in violation of relevant statutes" as part of their
negligence claims along with their eighth claim, which alleges,
in part, a violation of FIFRA.*fn1
This Court has held that alleged violations of FIFRA are not
preempted to the extent they are not predicated on a failure to
warn or inadequate labeling. See Higgins, 862 F. Supp. at
758-59. The Court based its holding on the Fourth Circuit's
decision in Worm, which held that "[i]f a state elects to
recognize that a breach of a FIFRA-created duty forms the basis
for a state remedy, we have held that it is permitted to do so by
7 U.S.C. § 136v(b)." Worm, 5 F.3d at 748. The Worm Court,
however, limited its holding by noting that "[a]llowing such
actions . . . is substantially distinguishable from accepting the
argument that the state common law duty to warn is not `in
addition to or different from' the federally defined duty." Id.
Accordingly, such actions are limited to FIFRA violations in
which a failure to warn or inadequate labeling are not alleged,
such as the claim in Higgins, in which the plaintiff alleged
that the defendants had breached their FIFRA-created duty to
fully disclose information to the EPA. See Higgins, 862 F. Supp.
4. Fraudulent Misrepresentation
Plaintiffs' sixth cause of action alleges fraudulent
misrepresentation. Fraudulent misrepresentation has not been
previously addressed by the Second Circuit or this Court in this
context. It has, however, received somewhat mixed treatment in
the other circuit courts.
In Kuiper, the Seventh Circuit, presented with a fraudulent
representation claim, pointed to a disagreement between the
circuits regarding the treatment of claims based upon statements
made apart from those on a product's label. See Kuiper, 131
F.3d at 662-63. The Court pointed out that the Fourth Circuit had
held that claims against off-label statements which merely repeat
information or language contained in the label are necessarily
aimed at the label itself and are therefore preempted. See id.
(citing Lowe v. Sporicidin Int'l, 47 F.3d 124, 130 (4th Cir.
1995); Worm, 5 F.3d at 748). The Court then noted that the
Ninth and Eleventh Circuits had gone further, holding that "`any
claims that point-of-sale signs, consumer notices, or other
informational materials failed adequately to warn the plaintiff
necessarily challenge the adequacy of the warnings provided on
the product's labeling or packaging' and therefore are
preempted." Kuiper, 131 F.3d at 663 (quoting Taylor AG, 54
F.3d at 561 (quoting Papas v. Upjohn Co., 985 F.2d at 519)).
Finally, the Court discussed still other courts which merely
noted the dispute between the circuits without choosing between
the rules. See Kuiper, 131 F.3d at 663 (citing Grenier, 96
F.3d at 564; Andrus v. AgrEvo USA Co., 178 F.3d 395, 400 (5th
Cir. 1999)). They did so because the claims at issue before them
involved statements which repeated language found on the label
and would be preempted under either rule. See id.
While the Kuiper Court based its treatment of fraudulent
misrepresentations on the line of cases dealing with failure to
warn in off-label statements, there is Supreme Court precedent to
suggest that different treatment should be accorded claims of
fraud. In Cipollone, a case often relied on by the circuit
courts in FIFRA preemption matters, the Court was presented with
two different theories of fraudulent misrepresentation. See
Cipollone, 505 U.S. at 527, 112 S.Ct. 2608.
The first claim alleged that the defendants, through their
advertising, neutralized the effect of federally mandated warning
labels. See id. The Court held that this claim was preempted
because it amounted to a state requirement that "warnings be
included in advertising and promotional materials." Id.
The second claim, on the other hand, alleged "intentional fraud
and misrepresentation both by `false representation of a material
fact [and by] conceal[ment of] a material fact.'" Id. The Court
held that the plaintiff's concealment claim was not preempted to
the extent it relied on "a state-law duty to disclose . . . facts
through channels of communication other than advertising or
promotion," such as required disclosure to a state administrative
agency. Moreover, the Court held that plaintiff's claim of
fraudulent misrepresentation of material facts with respect to
advertising and promotions was not preempted because it was based
on a general "duty not to deceive." Id.
In this case, Plaintiffs have not made clear what the source of
their fraudulent misrepresentation claim is, or on what theory it
is based. It is not clear if their claims is based on a weakening
of the mandated labels, an affirmative misrepresentation, or
concealment of a material fact. Like the circuit courts dealing
with this, until this Court is presented with a need to choose
between these approaches, it will not do so. Accordingly, in
their amended complaint, Plaintiffs will be required to set forth
more specifically the basis of their fraudulent misrepresentation
5. Strict Liability
Plaintiffs' seventh cause of action alleges that Defendants are
strictly liable in tort for injuries to Mr. Johnson caused by the
defective nature of their product. These claims "will be
preempted only if they require a finding that Defendants'
labeling or warnings were deficient." Higgins, 862 F. Supp. at
In New York, a plaintiff "may assert that the product is
defective because of mistake in manufacturing, . . . improper
design, or . . . the manufacturer's failure to provide adequate
warnings regarding use of the product." Fane v. Zimmer, Inc.,
927 F.2d 124, 128 (2d Cir. 1991) (quoting Voss v. Black & Decker
Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398, 450 N.E.2d 204, 207
(1983)). In Higgins, the plaintiff alleged that the defendants
"produced and introduced into the stream of commerce products
which were unreasonably dangerous for their intended use and that
the defective nature of such products could not be determined
upon reasonable inspection." Higgins, 862 F. Supp. at 759. The
Court held that such a claim was based on a theory of defective
design and not a theory of inadequate warnings, and was therefore
not preempted by FIFRA. See id. The Court noted that those
courts having held that strict liability claims were preempted by
FIFRA had "done so because such claims were based on alleged
labeling inadequacies." Id.
Plaintiffs' strict liability claim in this case is
substantially the same as that brought in the Higgins case.
Plaintiffs allege that Pentachlorophenol was "in a dangerous,
defective, and unsafe condition" while in Defendants possession
and that these conditions could not have been discovered with
reasonable care. Therefore, the Court finds that Plaintiffs'
strict liability claims are based on design defect, not
inadequate labeling, and are not preempted by FIFRA.
6. Loss of Consortium
Defendants contend that Plaintiffs' claim for loss of
consortium is a derivative claim and should be dismissed in the
absence of any remaining claims for the injured spouse. See Liff
v. Schildkrout, 49 N.Y.2d 622, 427 N.Y.S.2d 746,
404 N.E.2d 1288, 1291 (1980). Because the Court has not dismissed all of
Plaintiff's other claims, Defendants' argument is no longer
applicable. Accordingly, this portion of Defendants' motion to
dismiss is denied.
C. Failure to State a Claim
In the alternative, Defendants argue that Plaintiffs' Complaint
fails to a state a cause of action for breach of either of the
implied warranties, for breach of express warranty, and for
fraudulent misrepresentation. Because the Court has dismissed
Plaintiff' claims for breach of the implied warranties,
Defendants arguments are moot as to those claims. Furthermore, as
the Court is instructing Plaintiffs to file and serve an amended
complaint addressing the shortcomings in their claims for breach
of express warranty and fraudulent misrepresentation, Defendants'
arguments as to those claims are also moot.
D. Motion to Amend
Plaintiffs seek leave of this Court to amend their complaint.
After the filing of a responsive pleading, a party may amend a
pleading only by leave of the court, which leave "shall be freely
given when justice so requires." Fed.R.Civ.P. 15(a). This Court
has held that leave to amend shall be freely given absent any
reason to the contrary, such as bad faith, undue delay, or
futility of amendment. See Stetz v. Reeher Enters., Inc.,
70 F. Supp.2d 119, 121 (N.D.N.Y. 1999).
There is no evidence of bad faith or undue delay on the part of
Plaintiffs. However, Defendants argue both that the amendment
would be futile and that Plaintiffs' motion is procedurally
defective. However, Defendants' argument that the motion is
procedurally defective swallows its futility argument. Because
Plaintiffs have not attached a proposed amended complaint to
their motion, as required by L.R. 7.1(a)(4), the Court is not in
a position to determine whether Plaintiffs' proposed amendment
would be futile. Accordingly, Plaintiffs' motion for leave to
amend is denied without prejudice to refile.
For the reasons stated, it is hereby
ORDERED that Defendants' motions to dismiss are GRANTED as to
Plaintiffs' first and third causes of action and as to
Plaintiffs' eighth cause of action to the extent it seeks to
allege a private right of action under the New York State
Environmental Conservation Law and, as to all other claims,
DENIED without prejudice to refile in the event Plaintiff files
an amended complaint;
ORDERED that Plaintiffs' motion for leave to amend the
complaint is DENIED without prejudice to refile; and it is
FURTHER ORDERED that the Clerk of the Court serve a copy of
this Order on all parties by regular mail.
IT IS SO ORDERED.