United States District Court, E.D. New York
August 25, 2005.
JAMES E. FOX; JOHN H. MAKOWSKY; and NICHOLAS J. GRISMALE, Individually and on Behalf of all others similarly situated, Plaintiffs,
CHEMINOVA, INC.; CHEMINOVA AGRO A/S; AGREVO ENVIRONMENTAL HEALTH, INC.; CLARKE MOSQUITO CONTROL PRODUCTS, INC; ZOECON CORPORATION; and CORPORATIONS "1" THROUGH "5", Defendants.
The opinion of the court was delivered by: THOMAS PLATT, JR., Senior District Judge
MEMORANDUM AND ORDER
Defendants Cheminova, Inc. and Cheminova A/S ("Defendant" or
"Cheminova") move against Plaintiffs James E. Fox, John H.
Makowsky, Nicholas J. Crismale on behalf of all others similarly
situated ("Plaintiffs") (i) for summary judgment under Federal
Rule of Civil Procedure 56; (ii) to exclude ten (10) of
Plaintiffs' experts pursuant to Daubert v. Merrill Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993); and (iii) to strike
the Plaintiffs' supplemental expert affidavits that were produced
as a response to Defendant's Daubert motion.
For the ensuing reasons, all motions are DENIED.
As this Court has previously written on a motion to dismiss in
this case, see Fox v. Cheminova, 213 F.R.D. 113 (2003), familiarity with the
factual background as outlined in that opinion will be presumed.
Thus, the Court will only briefly detail the relevant events.
This lawsuit is brought on behalf of licensed commercial
fishermen from New York and Connecticut who were in the business
of trapping and selling lobsters in the Long Island Sound ("LI
Sound") and who were damaged as a result of the die-off of the
lobsters that began in September 1999.
Plaintiffs brought this action against various manufacturers of
insecticides (adulticides and larvicides) that were sprayed in
and around the New York Metropolitan area beginning in September
1999 to combat the perceived threat of the West Nile Virus
("WNV") outbreak that first appeared in Queens County. Plaintiffs
allege that the pesticides caused or contributed to the massive
mortalities of lobsters which resulted in a loss of revenue from
harvesting and selling lobsters.
Defendant Cheminova is a manufacturer and distributor of a
certain pesticide called Fyfanon®ULV ("Fyfanon"), an adulticide
containing the active ingredient malathion.*fn1 The West Nile Virus Outbreak and Application of Pesticides
In August and early September 1999, an encephalitis type
illness was discovered among several, mostly elderly, people in
Queens County, New York City.
Plaintiffs contend that City officials, although not at that
stage believing that the situation presented a true emergency,
decided to spray the entire city of New York twice with
pesticides. Plaintiffs also contend that this plan was developed
by Gerald McCarty ("McCarty"), then a member of the Mayor's
Office of Emergency Management. Plaintiffs claim that McCarty and
his assistants had no experience responding to such a disaster.
Defendant Cheminova, the movant herein, paints a different
picture in which, on September 3, 1999, trained experts made an
informed decision to administer the pesticides given the state of
emergency. The superintendent for the Division of Vector Control
in Suffolk County Department of Public Works, his counterpart in
Nassau County, and representatives from NYC Department of Health,
NYC Mayor's Office of Emergency Management, New York State
Department of Environmental Conservation, the Federal Centers for
Disease Control and Prevention in Atlanta ("CDC"), and Mayor Rudolph Giuliani all met on September 3, 1999.
According to the Defendant, the parties made a unanimous decision
to begin application.
What followed was the application (ie. the spraying) of various
pesticides in and around the Metropolitan New York area,
including Nassau and Suffolk counties on Long Island, all five
Boroughs of New York City, Westchester County, and Connecticut.
The spraying involved various "adulticides" (products used to
kill adult mosquitos that are airborne) and "larvicides"
(products used to kill mosquitos still in their larva stage).
Plaintiffs contend that numerous areas were treated along the
shoreline of the LI Sound, and in some instances directly over
the islands and waters of the LI Sound. Several types of
pesticides were applied aerially and by truck and other
ground-based methods, and several types were used to treat storm
drains and other areas where mosquitos and mosquito larva breed.
In this suit, Plaintiffs contend that the pesticides sprayed in
September and October of 1999 caused or contributed to the
lobster die-off in Long Island Sound. In addition, the Plaintiffs
further allege that the damaging effects of the pesticides on the
lobster population were exacerbated by the passing of the
Tropical Storm Floyd from September 17-19, 1999, which dumped
large amounts of rain and caused a significant runoff of effluent
and storm water to enter the Long Island Sound.
Though the case commenced on a design and manufacturing defect
theory, it has now apparently evolved into a failure to warn case with the
Plaintiffs alleging that Chemoniva's Fyfanon label in effect in
1999 did not sufficiently warn that the product should not be
applied in and around areas where lobsters are commercially
harvested. (Pl.'s Opp. Mem. at 16; Def.'s Mem. Sum. J. at 1, n.
Chronology of the Fyfanon Label
The parties disagree as to the exact chronology of the Fyfanon
label. However, it is undisputed that at the time of the spraying
in 1999, the Fyfanon label read as follows:
This product is toxic to fish. Keep out of lakes,
streams, ponds, tidal marshes and estuaries. Do not
apply where runoff is likely to occur. Do not apply
when weather conditions favor drift from areas
treated. Do not contaminate water by cleaning of
equipment, or disposal of wastes. Shrimp and crab may
be killed at application rates recommended on this
label. Do not apply where these are important
resources. This pesticide is highly toxic to bees
exposed to direct treatment or to residues remaining
in the treated area. Do not apply when bees are
actively visiting the crop, cover crop, or weeds
blooming in the treated area. Apply this product only
as specified on this label.
It is also undisputed that, at the time of the 1999 spraying,
the Defendant had applied for and received EPA approval for an
amended (but not yet implemented) label that provided as follows:
This pesticide is toxic to fish, aquatic
invertebrates, and aquatic life stages of amphibians.
For terrestrial uses, do not apply directly to water, or to areas where
surface water is present or to intertidal areas below
the mean high water mark. Drift and runoff may be
hazardous to aquatic organisms in areas near the
application site. Do not contaminate water when
disposing of equipment washwaters.
Note for Aquatic Uses: Broadcast use only over
intermittently flooded areas. Application may not be
made around bodies of water where fish or shellfish
are grown and/or harvested commercially.*fn2
The parties dispute when the EPA approved this amended label
and thus consequently, when the Defendant was required to
implement the new label on its product. A corollary issue is also
whether, assuming the new label were timely implemented, it would
have changed the way the pesticide was applied in this situation.
Plaintiffs maintain that the new language should have been
included on the Defendant's label as early as 1994. Furthermore,
the Plaintiffs maintain that, had the new amended label been
"timely" implemented, it would have prevented the spraying which
they claim caused the lobsters to die-off. To support this
argument, the Plaintiffs mainly point to the language on the
amended label: "Application may not be made around bodies of
water where fish or shellfish are grown and/or harvested
commercially." Defendant, however, claims that although they applied to the
EPA as early as 1994 to amend the Fyfanon label, the EPA did not
officially approve the amendment until 1999. Instead, the
Defendant claims that the EPA "accepted with comments" the
proposed changes, thus withholding final approval until the
comments were implemented. In any event, Defendant argues that a
change in the language of the label would not have altered the
way that Fyfanon was applied.
On August 25, 2000, Plaintiffs filed a complaint asserting that
as a result of the application of the Defendants' pesticides and
insecticides to the Greater New York area, the lobsters died-off
in the Long Island Sound.
On February 28, 2003, this Court granted class certification
status to the Plaintiffs, finding that the requirements of
numerosity, commonality, typicality, and adequate representation
had been met.
On December 15, 2004, Defendants AgrEvo Environmental Health,
Inc.*fn3 and Clarke Mosquito Products, Inc. settled their
cases with Plaintiff, leaving Cheminova and Zoecon Corporation as
the remaining Defendants. On November 30, 2004, Defendant
Cheminova filed a motion for summary judgment against the
Plaintiffs and a motion in limine to exclude the Plaintiffs'
experts. Zoecon did not join in the motions and was dismissed from the action in August of 2005. This
Court heard oral argument on the motions on December 10, 2004 and
reserved its decision on them both.
I. Motion for Summary Judgment
Defendant moves for summary judgment on four (4) grounds: (i)
Plaintiffs' claims of mis-labeling are expressly preempted (or at
least impliedly preempted) by the Federal Insecticide, Fungicide
& Rodenticide Act, 7 U.S.C. § 136v ("FIFRA"); (ii) Defendant is
immune from liability pursuant to the Government Emergency
Doctrine; (iii) there are no material issues of fact as to the
Plaintiffs' State law claims of negligence and public nuisance;
and (iv) Plaintiffs have failed to show that Fyfanon caused the
lobster die-off in 1999.
A. Rule 56 Standard
A motion for summary judgment may not be granted unless the
court determines that there is "no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986). "A party opposing a
properly brought motion for summary judgment bears the burden of
going beyond the specific pleadings, and `designating specific
facts showing there is a genuine issue for trial.'" Amnesty Am.
v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). If there
is any evidence in the record from which a reasonable inference
could be drawn in favor of the non-moving party on a material
issue of fact, summary judgment is improper. Chambers v. TRM
Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).
The preemption doctrine, which is a corollary of the Supremacy
Clause, provides that any State or municipal law that conflicts
with a federal law is rendered without effect. U.S. CONST.
art. VI, cl. 2; Louisiana Pub. Serv. Comm'n v. Fed. Comm. Comm'n,
476 U.S. 355, 368 (1986). A federal law may preempt a State law
in one of three ways: (i) expressly by explicitly defining in the
regulation the extent to which its enactments preempt State law,
(ii) implicitly when Congress has regulated a certain area in a
comprehensive fashion, or (iii) when a State regulation conflicts
with federal law, thus frustrating the purpose of the federal
legislation. Northwest Cent. Pipeline Corp. v. State Corp. Comm.
of Kansas, 489 U.S. 493, 509 (1989).
Here, Defendant argues that FIFRA expressly preempts or in
the alternative at least impliedly preempts Plaintiffs' State
law claims of mis-labeling.
1. Express Preemption
The Defendant argues that FIFRA expressly preempts any State
law mislabeling claims because FIFRA itself contains an explicit
preemption clause: (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
7 U.S.C. § 136v(b) (emphasis supplied). Where, as here, the
federal statute contains an express preemption clause, the
Court's task of statutory construction must in the first instance
examine the plain wording of the clause because it provides the
best indicium of Congressional intent. Sprietsma v. Mercury
Marine, 537 U.S. 51
, 62-63 (2002).
Defendant argues that the Plaintiffs' State law failure to warn
claims are preempted by FIFRA because the EPA already determined
that the Fyfanon label met the requirements of FIFRA and thus any
State law claim that challenges the sufficiency of the
EPA-approved labels is preempted. Def.'s Mem. Sum. J. at 11-13.
This argument, however, follows a circular logic. In essence, the
Defendant's argument presumes that its 1999 label was in
compliance with FIFRA (and the EPA's requirements), and that,
therefore, any State law misbranding "violation" would have to be
found preempted because it attempts to impose a requirement "in
addition to or different" than FIFRA.
Plaintiffs counter that because the State imposes a duty to
maintain a label in accordance with the federal standards, and
FIFRA preempts only State requirements that are "in addition to
or different" from it, then no conflict or preemption exists. The thrust of Plaintiffs' argument explodes the Defendant's
presumption that its label was in compliance with FIFRA and the
EPA from the outset.
The U.S. Supreme Court has recently determined the scope and
breadth of FIFRA preemption in Bates v. Dow Agrosciences, LLC,
___ U.S. ___, 125 S. Ct. 1788 (April 27, 2005). In Bates, a
group of Texas peanut farmers alleged that their crops were
severely damaged by the application of a newly-marketed weed
killer called "Strongarm." They brought claims under FIFRA and
the Texas Deceptive Trade Practices Act, State law claims of
fraud, breach of warranty, and tort claims sounding in strict
liability and negligence. The Bates Court set forth a two-part
test as to whether FIFRA preemption applied to particular State
law claims: (i) whether the claim was a requirement for "labeling
and packaging" and (ii) whether it imposes a labeling and
packaging requirement was "in addition to or different from those
required" under FIFRA. Bates, 125 S. Ct. at 1798.
In its final analysis, Bates makes crystal clear that FIFRA
"preempts any statutory or common law rule that would impose a
labeling requirement that diverges from those set out in FIFRA
and its implementing regulations. It does not, however, preempt
any state rules that are fully consistent with federal
requirements." Id. at 1803. Therefore, the fraud and negligent
failure to warn claims were preempted to the extent that they
added to or differed from FIFRA, a subject on which the Court
remanded for further briefing by the parties. The mere fact that
those State claims did "not explicitly incorporate FIFRA's standards as an element
of a cause of action" was not dispositive. Id. at 1800. On
remand, the fraud claim would be preempted if the "element of
falsity in Texas' common law definition of fraud imposed a
broader obligation than FIFRA's requirement that labels not
contain `false or misleading statements.'" Id. The Court made
sure to note that while the "state law requirement need not be
phrased in the identical language as its corresponding FIFRA
requirement," it nevertheless must be "genuinely equivalent."
Id. at 1804 (emphasis in original).
In this case, whether the plaintiffs' negligence and public
nuisance claims are preempted turns on whether they impose
"genuinely equivalent" requirements as FIFRA. Under FIFRA, a
pesticide is "misbranded" if its label contains a statement that
is "false or misleading in any particular," including a false or
misleading statement concerning the expected results of the
pesticide. § 136(q)(1)(A); 40 C.F.R. § 152.112(f) (2004). A
pesticide is also misbranded if its label does not contain
adequate instructions for use, or if its label omits necessary
warnings or cautionary statements. §§ 136(q)(1)(F), (G).
The Court thus concludes the legal issue that the Plaintiff's
State labeling claims are preempted by FIFRA to the extent that
they add to or differ from what FIFRA requires. The parties,
however, have not addressed or made a real factual issue of
whether the State law labeling claims are "genuinely equivalent"
to FIFRA. To the extent that they do raise this issue, it is only to
conclusively state that they are or are not equivalent. The
parties fail to flesh out the precise contours of the State
labeling laws and thus this Court has no grounds upon which to
decide the factual issue as it is presented in this case. Thus,
summary judgment is denied on the express preemption claim.
2. Conflict Preemption
Even if § 136v(b) of FIFRA does not explicitly preempt the
State common law claims alleged here, Defendant contends that
such claims are implicitly preempted by the doctrine of conflict
preemption. Implied conflict preemption may exist even where
Congress has chosen to include an express preemption clause in a
statute. Nathan Kimmel, Inc. v. DowElanco, 275 F.3d 1199, 1204
(9th Cir. 2002) (citing Freightliner Corp. v. Myrick,
514 U.S. 280, 287 (1995)). Conflict preemption is found "`where it is
impossible to comply with both state and federal requirements, or
where state law stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.'"
Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1149 (9th
Cir. 2000) (citation omitted). Defendant argues that allowing the
Plaintiffs' State law claims to proceed would conflict with the
EPA's ability to enforce its regulations. Plaintiffs counter that
there is no conflict between federal and State requirements in
this case because the State standards merely echo the EPA's
standards as set forth in FIFRA. Again, however, a proper conflict preemption analysis in this
case would only be feasible if the Court were briefed on the
exact contours of the State law claims so that it may compare
them with FIFRA. Accordingly, the Court may not decide this issue
as well until it has received adequate briefing on the issue.
3. Violation of FIFRA?
Preemption of State law claims aside, however, the Court
nevertheless finds itself stuck in a swampy soup of numerous
unanswered factual questions with respect to whether the
Defendant violated FIFRA. At bottom, the Court's inquiry is here
whether the Fyfanon label was in defiance of FIFRA (and the
EPA's) requirements. This determination turns on the timing of
the amendment to the Fyfanon label. This Court finds it hard to
imagine an issue more rife with material questions of fact as
this one, and thus denies the motion for summary judgment on this
The time period within which registrants must amend labels is
governed by 40 C.F.R. § 152.130, which provides different time
periods based on whether a change is "registrant-driven" (as it
is here) or "EPA-driven" (ie, the product is required to be
revised as a result of the issuance of a Registration Standard or
a notice concluding a special review process). If the amendment
is "registrant-driven," the registrant may sell under the
previously approved label for a period of eighteen (18) months
after approval of the revision, unless an order issued by the EPA provides otherwise. 40 C.F.R. § 152.130(c).
Plaintiffs claim that the EPA approved the amended label as
early as 1994 and thus (regardless of whether "registrant-driven"
or "EPA-driven") the Defendant's label was not in compliance with
FIFRA when it allowed the spraying of its product in the fall of
1999 with the 1994 EPA approved label. The Defendant, however,
argues that pursuant to 40 C.F.R. § 152.130, the Defendant had 18
months or until June 2000 to implement the new label. Because
the label on the product sold in the fall of 1999 contained the
Environmental Hazard language on the March 1994 EPA-approved
label (the only one they claim the EPA has approved for use at
that time), Plaintiffs state they are entitled to summary
judgment on this issue.
Clearly, as evidenced by the parties' 56.1 Statements, the
chronology of the label is a question of fact that must be
determined by the jury and may not be resolved by this Court at
this early stage. See, e.g., Pls.' Counter 56.1 Stmt. ¶ 131;
Pls.' Counter 56.1 Stmt. ¶ 132; Def.'s Rep. 56.1 Stmt. ¶ 9;
Def.'s Rep. 56.1 Stmt. ¶ 14; Def.'s Rep. 56.1 Stmt. ¶ 18; Def.'s
Rep. 56.1 Stmt. ¶ 20; Def.'s Rep. 56.1 Stmt. ¶ 27; Def.'s Rep.
56.1 Stmt. ¶ 41; Def.'s Rep. 56.1 Stmt. ¶ 52; Def.'s Rep. 56.1
Stmt. ¶ 53; and Def.'s Rep. 56.1 Stmt. ¶ 55.
Distilled to its essence, the issue appears to be whether the
18-month clock began on January 9, 1997 or on December 9, 1998.
If the clock began on January 9, 1997, as the Plaintiffs claim,
then the Defendant had until October 1998 to implement the amended label. If, however, the clock started
ticking on December 9, 1998, then the Defendant had until June of
2000 to implement the new label, and thus did not violate FIFRA
requirements by continuing to use its 1994 EPA-approved label in
the fall of 1999.
It is undisputed that on January 9, 1997, the EPA "accept[ed]
with comments" Defendant's October 11, 1996 request to amend the
label. Those comments inform the Defendant that it must include
the following language:
Broadcast use only over intermittently flooded areas.
Application may not be made around bodies of water
where fish or shellfish are grown and/or harvested
In addition, the EPA told Defendant to revise its current
statement to include:
This pesticide is toxic to fish, aquatic
invertebrates, and aquatic life stages of amphibians.
For terrestrial uses, do not apply directly to water,
or to areas where surface water is present or to
intertidal areas below the mean high water mark.
Drift and runoff may be hazardous to aquatic
organisms in areas near the application site. Do not
contaminate water when disposing of equipment
The Plaintiffs argue that, based on the EPA's acceptance with
comments on January 9, 1997,*fn4
the Defendant had until
October of 1998 to implement the new label. The Defendant, however, argues that January 9, 1997 is not the
operative date because it responded to the EPA on June 6, 1998
with another proposed request to amend the Fyfanon label, which
differed slightly from the language the EPA approved on January
9, 1997. Thus, according to the Defendant, the FIFRA clock
started to tick on December 9, 1998 when the EPA "accepted with
comments" the Defendant's June 1998 proposed label.
As there is a material issue of fact as to when the FIFRA clock
began to run, summary judgment is denied as to this claim. See,
e.g., Pls.' Counter 56.1 Stmt. ¶ 131; Pls.' Counter 56.1 Stmt. ¶
132; Def.'s Rep. 56.1 Stmt. ¶ 9; Def.'s Rep. 56.1 Stmt. ¶ 14;
Def.'s Rep. 56.1 Stmt. ¶ 20; Def.'s Rep. 56.1 Stmt. ¶ 27; Def.'s
Rep. 56.1 Stmt. ¶ 41; Def.'s Rep. 56.1 Stmt. ¶ 52; Def'.s Rep.
56.1 Stmt. ¶ 53; and Def.'s Rep. 56.1 Stmt. ¶ 55.
C. Government Emergency Doctrine
Defendant claims the so-called "government emergency doctrine"
shields it from liability from all acts which occurred during the
onslaught of the West Nile Virus. Citing to Macias v.
California, 897 P.2d 530 (Cal. 1995), the Defendant argues that the West Nile Virus constituted a declared state of
emergency for the State of New York, and thus the defendant
corporation should be immune from liability during this phase. In
Macias, the State exercised its statutory emergency powers to
carry out malathion spraying to eradicate a Mediterranean fruit
fly ("Medfly") infestation which threatened the State's
agricultural industry. The Plaintiff in Macias was a child who
was blinded as a result of allegedly inadequate warnings of
hazard on the pesticide. The Court held that the Defendant
company did not have an independent duty to change the warnings
on their label because doing so would undermine the State's
emergency response efforts "in times of extreme peril." Id. at
There is no indication in case law or in State statutes that
the Second Circuit has even adopted the "government emergency"
doctrine.*fn5 In fact, New York law only provides for State
and not private parties or corporations immunity from
liability during emergency situations:
A political subdivision shall not be liable for any
claim based upon the exercise or performance of the failure
to exercise or perform a discretionary function or
duty on the part of any officer or employee in
[coping with an emergency].
N.Y. Executive Law § 25 (emphasis added). Its failure to extend
the protection of this doctrine to private companies evidences
the legislature's intent that they not be shielded from liability
during emergencies. Moreover, the Macias court relied on a
declared state of emergency, whereas here, New York did not
declare an official state of emergency. Thus, summary judgment is
denied as to this claim.
D. State Law Claims
Assuming, arguendo, that the Plaintiffs' State law claims are
not preempted, there still remain various genuine issues of
material fact which prevent the granting of summary judgment on
these claims. Initially, the Defendant moved for summary judgment
on numerous State law grounds: strict product liability for a
manufacturing or design defect, negligence in designing the
product, negligence in the storage of the product, negligent
entrustment of Fyfanon to the government, negligence by way of
fraudulent misrepresentation, "foreseeable misuse," and public
nuisance. (Def.'s Mem. at 27-37) In their opposition, however,
the Plaintiffs state that their "claims against Cheminova lie in
its failure to warn. Their claims are based upon negligence and
strict products liability arising from the negligence in failing
to warn." (Pls.' Opp. at 18) Cheminova argues that Plaintiffs
have thus abandoned their design and manufacture defect claims as well as their "foreseeable misuse"
claim from their complaint by not specifically addressing them in
their opposition papers to this motion.
Because Plaintiffs have failed to address these claims in their
opposition papers, the Court may deem them to be
abandoned.*fn6 However, the Court declines to do so at this
juncture because of the following issues of contested fact that
remain in the 56.1 statements regarding these claims*fn7 and
the conceded fact that Cheminova knew as early as 1994 that its
product was toxic to shellfish. Where there are, as here,
contested issues of fact, the motion for summary judgment is thus
denied as to the claims of strict product liability for a
manufacturing or design defect, negligence in designing the
product, negligence in the storage of the product, negligent entrustment of Fyfanon to the government, negligence by way of
fraudulent misrepresentation, and "foreseeable misuse."
Accordingly, the Court need only entertain in detail the
Defendant's motion for summary judgment as to the State law
claims of negligence, strict products liability and public
nuisance claims which the Plaintiffs address in their papers.
1. Negligence and Strict Products Liability
"Where liability is predicated on a failure to warn, New York
views negligence and strict liability claims as equivalent."
Anderson v. Hedstrom Corp., 76 F. Supp.2d 422, 439 (S.D.N.Y.
1999) (citing Martin v. Hacker, 83 N.Y.2d 1, 8 n. 1 (1993)
(citation omitted). To establish a claim for negligence and
strict liability under New York law, the Plaintiffs must show
that (a) the Defendant owed a duty to the Plaintiffs, (b) the
Defendant breached that duty, and (c) that the breach of duty was
the proximate cause of the Plaintiffs' injury. Curley v. AMR
Corp., 153 F.3d 5 (2d Cir. 1998). The standard for evaluating
"failure to warn" liability is described by the Court of Appeals
as "intensely fact-specific, including but not limited to such
issues as feasibility and difficulty of issuing warnings in the
circumstances; obviousness of the risk from actual use of the
product; knowledge of the particular product user; and proximate
cause." Liriano v. Hobart Corp., 92 N.Y.2d 232, 243 (1998).
Here, Plaintiffs state that they seek to recover damages from the
common law tort of negligence and strict liability and to use the
alleged FIFRA violations as proof that Cheminova breached its standard of care. (Pls.' Opp.
Of course, whether the Defendant breached its duty towards the
Plaintiffs under FIFRA remains a questions of fact. See
discussion supra. Moreover, as detailed below in section E,
causation is clearly a genuine issue of material fact that
remains to be resolved. In any event, in a duty to warn case such
as this one, the generally accepted rule is that the
reasonableness vel non of a set of warnings is a question of
fact for the jury. Cooley v. Carter-Wallace, Inc.,
478 N.Y.S.2d 375 (4th Dep't 1984). For those reasons, summary judgment should
be denied as to these claims.
2. Public Nuisance
As for the Defendant's summary judgment motion on the nuisance
claims, it too should be denied. Pollution of public waterways
may constitute a public nuisance. Leo v. General Electric Co.,
538 N.Y.S.2d 844 (2d Dep't 1989). In order to establish a
defendant's liability for the tort of public nuisance, a
plaintiff must prove: (1) the existence of the public nuisance,
(2) conduct or omissions by the defendant, and (3) particular
harm suffered by plaintiff different in kind from that suffered
by the community at large as a result of the public nuisance.
NAACP v. Acusport, 271 F.Supp.2d 435, 482 (E.D.N.Y. 2003). As
with the negligence claim, because causation remains a genuine
issue of fact, summary judgment should be denied as to this
claim. E. Causation
The determination of proximate causation is a matter left for
the jury and cannot be resolved by summary adjudication.
Ultimately, the issue is whether the facts and
circumstances presented by the plaintiff in a
particular case permit a jury reasonably to infer
that a warning, reasonably required, would have been
heeded. [A] prediction as to what a worker, alerted
to the hazards, would have done is generally within
the range of reasonable dispute that makes matters
appropriate for submission to a jury.
Rainey v. Owens-Illinois, Inc., 897 F.2d 94
, 96 (2d Cir. 1990).
Here, there is no doubt that causation remains a genuine issue of
material fact. The four (4) boxes, thousands of documents, and a
multitude of experts show that causation of the lobster die-off
is clearly a question of fact that has not yet been resolved.
See, e.g., Pls.' Counter 56.1 Stmt. ¶ 167; Pls.' Counter 56.1
Stmt. ¶ 169; Pls.' Counter 56.1 Stmt. ¶ 177; Pls.' Counter 56.1
Stmt. ¶ 179; Pls.' Counter 56.1 Stmt. ¶ 180; and Pls.' Counter
56.1 Stmt. ¶ 135.
For example, other factors, such as water flow,*fn8
Tropical Storm Floyd*fn9 and other pesticides*fn10 have been mentioned as being possibly
sole or contributing causes to the lobster die-off in the Long
Island Sound. Accordingly, because there remain serious issues of
fact as to the causation that are better resolved by a jury,
summary judgment is denied.
The Court must also note for the record its doubt as to whether
the Defendant's change to the amended label would have thwarted
the application of its product over the Long Island Sound in the
first instance. Plaintiffs allege that the following language on
the EPA-approved Fyfanon label was insufficient to warn of the
risks associated with applying pesticides where lobsters are
Toxic to Fish . . . Keep out of lakes, streams,
ponds, tidal marshes and estuaries. Do not apply
where runoff is likely to occur. Do not apply when
weather conditions favor drift from areas treated . . .
Shrimp and crab may be killed at application rates
recommended on this label. Do not apply where these
are important resources.
Plaintiffs claim that the Fyfanon label should have included the
amended language: "application may not be made around bodies of
water where fish or shellfish are grown and/or harvested
commercially." The Court observes that the difference between the
1994 EPA-approved label and the 1998 EPA-approved label may be a distinction without a meaningful difference both caution
against spraying near bodies of water and both versions note that
the product is toxic to fish and other aquatic life.
Nevertheless, the many remaining issues of fact as to causation
persuade this Court to deny summary judgment.
. . .
In sum, as evident above, the following are among the genuine
issues of material fact that remain for a jury to resolve, thus
precluding summary judgment:
1. On what date should the amended label have been
implemented on Defendant's product? See, e.g.,
Pls.' Counter 56.1 Stmt. ¶ 131; Pls.' Counter 56.1
Stmt. ¶ 132; Def.'s Rep. 56.1 Stmt. ¶ 9; Def.'s Rep.
56.1 Stmt. ¶ 14; Def.'s Rep. 56.1 Stmt. ¶ 18; Def.'s
Rep. 56.1 Stmt. ¶ 20; Def.'s Rep. 56.1 Stmt. ¶ 27;
Def.'s Rep. 56.1 Stmt. ¶ 41; Def.'s Rep. 56.1 Stmt. ¶
52; Def.'s Rep. 56.1 Stmt. ¶ 53; and Def.'s Rep. 56.1
Stmt. ¶ 55.
2. Was the Defendant's product sprayed over the Long
Island Sound? See, e.g., Pls.' Counter 56.1 Stmt. ¶
41; Pls.' Counter 56.1 Stmt. ¶ 46; Pls.' Counter 56.1
Stmt. ¶ 68; Pls.' Counter 56.1 Stmt. ¶ 74; Pls.'
Counter 56.1 Stmt. ¶ 87; Pls.' Counter 56.1 Stmt. ¶
89; Pls.' Counter 56.1 Stmt. ¶ 92; and Pls.' Counter
56.1 Stmt. ¶ 90.
3. Assuming the product was sprayed over the LIS,
would the label as amended have prevented the
spraying of the Defendant's product over the waters
of the Long Island Sound? See, e.g., Pls.' Counter
56.1 Stmt. ¶ 77.
4. Whether the spraying of the Defendant's product in
August and September of 1999 was the proximate cause
to the lobster die-off in the Long Island Sound.
See, e.g., Pls.' Counter 56.1 Stmt. ¶ 167; Pls.'
Counter 56.1 Stmt. ¶ 169; Pls.' Counter 56.1 Stmt. ¶
177; Pls.' Counter 56.1 Stmt. ¶ 179; Pls.' Counter 56.1 Stmt. ¶
180; and Pls.' Counter 56.1 Stmt. ¶ 135.
5. Were other events or products more likely than not
the cause of the lobster die-off? See, e.g., Defs.
Rep. 56.1 Stmt. ¶ 75; Defs. Rep. 56.1 Stmt. ¶ 78;
Defs. Rep. 56.1 Stmt. ¶ 104; Defs. Rep. 56.1 Stmt. ¶
78; Defs. Rep. 56.1 Stmt. ¶ 79; Defs. Rep. 56.1 Stmt.
¶ 80; Defs. Rep. 56.1 Stmt. ¶ 81; Defs. Rep. 56.1
Stmt. ¶ 121; Defs. Rep. 56.1 Stmt. ¶ 122; Defs. Rep.
56.1 Stmt. ¶ 102; and Pls.' 56.1 Stmt. ¶ 13.
6. What effect did the water flow between the East
River to the Long Island Sound have on the die-off?
See, e.g., Defs. Rep. 56.1 Stmt. ¶ 75; Defs. Rep.
56.1 Stmt. ¶ 78; and Defs. Rep. 56.1 Stmt. ¶ 104.
7. Was the water flow in the Long Island Sound such
that the surface waters could reach the bottom layers
where the lobsters reside? See, e.g., Defs. Rep.
56.1 Stmt. ¶ 78; Defs. Rep. 56.1 Stmt. ¶ 79; and
Defs. Rep. 56.1 Stmt. ¶ 104.
8. What was the effect of Tropical storm Floyd on the
lobster die-off? See, e.g., Defs. Rep. 56.1 Stmt. ¶
78; Defs. Rep. 56.1 Stmt. ¶ 79; Defs. Rep. 56.1 Stmt.
¶ 80; Defs. Rep. 56.1 Stmt. ¶ 81; Defs. Rep. 56.1
Stmt. ¶ 121; and Defs. Rep. 56.1 Stmt. ¶ 122.
9. What was the effect of other pollutants or
pesticides?: See, e.g., Defs. Rep. 56.1 Stmt. ¶
102; and Pls.' 56.1 Stmt. ¶ 13.
II. Motions Regarding Experts
Defendant moves to exclude ten (10) of Plaintiffs'
experts,*fn11 claiming that they all fail to meet the
criteria set forth in Daubert v. Merrill Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993) and its progeny. Following the oral
argument on the summary judgment motion and the motion in limine, the
Defendant filed an addition motion on January 13, 2005 to strike
Plaintiffs' supplemental expert affidavits*fn12 under
Federal Rules of Evidence 26(c) and 37.
III. Daubert Motion
A. Daubert Standard
An evaluation of expert testimony begins with an examination of
Federal Rules of Evidence 104(a) and 702. Rule 104(a) states in
relevant part: "Preliminary questions concerning the
qualification of a person to be a witness . . . or the
admissibility of evidence shall be determined by the court." Rule
702 states: "If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or
data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and
methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case. .
In Daubert, the U.S. Supreme Court expanded on these
requirements and imposed a special "gatekeeping" function on the trial court to
ensure that all expert, scientific testimony is reliable and
relevant before being admitted into evidence. Daubert,
502 U.S. at 595. In order to fulfill this "gatekeeping" function, the
Daubert court adopted a flexible, two-pronged approach based on
Federal Rule of Evidence 702, that requires a trial court to
determine (i) whether the reasoning or methodology underlying the
testimony is scientifically valid and (ii) whether the reasoning
or methodology can properly be applied to the facts in issue.
Id. at 293-93. The first prong of the Daubert test is a
reliability inquiry which involves four (4) factors: (1) whether
a theory or technique can be (or has been) tested; (2) whether it
has been subjected to peer review and publication; (3) whether in
respect to a particular technique, there is a high known or
potential rate of error and whether there are standards
controlling the technique's operation; and (4) whether the theory
or technique enjoys `general acceptance' within a `relevant
scientific community.' Kumho Tire Co. v. Carmichael,
526 U.S. 137, 149-50 (1999) (citing Daubert, 509 U.S. at 592-93)). The
second Daubert prong the relevance or fit of the expert
testimony requires the Court to determine whether the expert's
opinions "fit the facts of the case at hand." Wurtzel v.
Starbuck's Coffee Co., 257 F. Supp.2d 520, 525 (E.D.N.Y. 2003).
In order to apply this multi-prong approach to the
admissibility of the experts at issue here, however, the Court
must conduct Daubert hearings on each of the experts. In addition, at this juncture, the Court has no
knowledge of who the parties will ultimately call as witnesses at
trial. Accordingly, all questions regarding the admissibility of
the expert testimony shall be deferred until the Court conducts
IV. Motion to Strike Expert Affidavits
Cheminova moves to strike the expert affidavits of Drs. Rodney
Bushway, Robert Bayer, and Jeffrey Shields as untimely pursuant
to the Federal Rules of Civil Procedure. According to the
Defendant, discovery in this case closed on February 3, 2003 and
thus these doctors' affidavits which were enclosed with
Plaintiffs' reply memo to Cheminova's Daubert motion, are thus
However, at this juncture, it is impractical indeed
impossible for this Court to rule on such a motion until after
a Daubert hearing. Accordingly, the motion to strike is denied
without prejudice to renew.
Accordingly, Cheminova's motion for summary judgment is DENIED
in its entirety. The motion to exclude Plaintiffs' experts is
stayed pending Daubert hearings. Finally, the motion to strike
Plaintiffs' expert affidavits is DENIED without prejudice to
renew pending the completion of the Daubert hearings.
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