Diclosulam (CAS No. 145701-21-9) herbicide: Strongarm
Index Page to Class Action:
Dennis Bates, el al., Petitioners v. Dow AgroSciences LLC, Respondent
 
 

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On April 27, 2005, the Supreme Court ruled that farmers whose crops are damaged by federally approved pesticides or herbicides may pursue damage claims against the manufacturers in state court.

29 Texas peanut farmers argued that during the 2000 growing season the fluorinated diclosulam herbicide, called Strongarm, severely damaged their crops. In their efforts to create a Class Action suit, the farmers lost their case in two courts. They then appealed to the U.S. Supreme Court.

According to the Associated Press:

The US Supreme Court ruling "reinstates the farmers' claim that Dow essentially failed to warn of possible risks. A lower court had dismissed the claims, reasoning that federal law barred states from imposing labeling requirements on pesticides and herbicides other than those set by the Environmental Protection Agency. But in an opinion by Justice John Paul Stevens, the court ordered the New Orleans-based 5th U.S. Circuit Court of Appeals to take a second look at the case."

Dow AgroSciences, a 100%-owned subsidiary of Dow Chemical, makes diclosulam.

EPA approved its use in March 2000 to allow its use for that year's growing season. EPA approved the label for diclosulam for use in all areas where peanuts are grown. However, Texas soils used for peanut farming have a high pH and diclosulam should not be used in soils of 7.0 pH or greater. The label EPA approved in 2000 did not warn the Texas farmers and this led to substantial losses and the basis for their Class Action suit.

In its decision on April 27, the U.S. Supreme Court stated:

According to petitioners—whose version of the facts we assume to be true at this stage—Dow knew, or should have known, that Strongarm would stunt the growth of peanuts in soils with pH levels of 7.0 or greater. Nevertheless, Strongarm’s label stated, “Use of Strongarm is recommended in all areas where peanuts are grown,” and Dow’s agents made equivalent representations in their sales pitches to petitioners. When petitioners applied Strongarm on their farms—whose soils have pH levels of 7.2 or higher, as is typical in western Texas—the pesticide severely damaged their peanut crops while failing to control the growth of weeds...

Dow reregistered its Strongarm label with EPA prior to the 2001 growing season. EPA approved a “supplemental” label that was for “[d]istribution and [u]se [o]nly in the states of New Mexico, Oklahoma and Texas,” the three States in which peanut farmers experienced crop damage. This new label contained the following warning: “Do not apply Strongarm to soils with a pH of 7.2 or greater.”

According to the petitioners brief of December 29, 2004: "some petitioners did not use Strongarm in certain of their fields, where they experienced record crop production."

Strongarm did kill some of the Texans’ weeds, but the farmers say it also stunted their plants’ growth and led crop productivity to plummet. The farmers’ losses were estimated to be in the "multiple millions of dollars," according to Kimberly Keller, an attorney for the farmers. When used in the alkaline soils of western Texas, the farmers discovered, Strongarm damages peanut roots, a consequence that is now indicated on the Strongarm label...
Ref: On the Docket: Bates, Dennis, et al. v. Dow Agrosciences LLC; by Eric P. Martin, Medill News Service

According to an April 28, 2005, article in the New York Times:

The 7-to-2 decision was one of the court's most significant rulings on the pre-emptive effect of federal statutes. In unusually pointed terms, the majority rejected the Bush administration's view that lawsuits claiming manufacturers negligently designed, tested or manufactured their products are pre-empted by the Federal Insecticide, Fungicide and Rodenticide Act [FIFRA)], the federal law that governs the registration and labeling of these products...

The appeal has been closely watched for signs of the court's evolving approach to pre-emption. In general, a broad doctrine of pre-emption favors business by keeping tort cases out of state court and avoiding the need to satisfy 50 separate legal systems.

Since [FIFRA] provides no right for individuals to sue in federal court, a finding of pre-emption would have meant that consumers would have no opportunity at all to sue manufacturers. Arthur H. Bryant, executive director of Trial Lawyers for Public Justice, a public-interest law firm representing consumers, said the decision was "an important and striking development" in light of the general trend in legislatures and courts toward curbing access to the tort system.

... the court ordered the Fifth Circuit to give further consideration to whether the claims for fraud and "failure to warn" could go forward or were pre-empted.

Justice Stevens said the administration's argument that [FIFRA] broadly required pre-emption "is particularly dubious given that just five years ago the United States advocated the interpretation that we adopt today."

See also: FAN's compilation of News Reports and Timeline

Legal Briefs and Opinions
Date Title Details
April 27, 2005

SUPREME COURT OF THE UNITED STATES

Case No. 03—388

Opinion Issued: 7-2 for Bates.

Argued January 10, 2005
Decided April 27, 2005

US Supreme Court rules in favor of farmers.

The US Supreme Court issued an opinion that upheld citizens' rights to sue for damages caused by pesticides, and called into question aspects of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The decision requires a lower court that had dismissed the plaintiffs' claims to rehear their arguments.

Concurrence (Breyer)
Opinion (Stevens)
• (Opinion of Thomas)

January 10, 2005 Transcript of oral argument before the Supreme Court of the United States

Parties in both cases have enlisted top-tier lawyers to do battle. In the pesticide case Bates v. Dow Agrosciences, set for argument today, heavy hitters David Frederick of Washington, D.C.'s Kellogg, Huber, Hansen, Todd, Evans & Figel, will square off against former Solicitor General Seth Waxman of Wilmer Cutler Pickering Hale and Dorr.

Frederick represents Texas peanut farmers harmed by a pesticide made by Waxman's client, Dow. Waxman will argue that a federal law that regulates pesticides pre-empts state tort actions, but Frederick calls that argument "the latest effort by manufacturers to evade liability for their defective products through a sweeping pre-emption argument."
Ref: Supreme Court Set to Enter Tort Battleground. By Tony Mauro. Legal Times. January 10, 2005.

December 29, 2004

Brief for petitioners (Bates et al). Submitted to US Supreme Court.

David C. Frederick
Counsel of Record

November 24, 2004 Brief of the Chamber of Commerce of the United States as Amicus Curiae in Support of Respondent

US Chamber of Commerce
in support of Dow AgroSciences

The National Chamber Litigation Center (NCLC) amicus brief urges the high court to affirm a court of appeals decision prohibiting individuals from bringing state tort actions based on pesticide labeling.  NCLC argues that allowing state-law tort claims in areas of comprehensive federal regulation would "create a crazy quilt of preemption," where contrary labeling requirements imposed by positive law, like statutes and regulations, would be preempted, but common law obligations imposed by judges and juries in state court suits for damages would not.

September 13, 2004 Amicus Curiae brief of the Association of Trial Lawyers of America in support of the Petitioners. The Association of Trial Lawyers of America
argues in support of the farmers
May 2004 Brief for the United States as Amicus Curiae Bush Administration argues in support of Dow AgroSciences.
In this brief submitted to the Supreme Court, U.S. Solicitor General Theodore Olson argues that FIFRA pre-empts tort liability claims against pesticide registrants, sellers and distributors.
June 11, 2003 U.S. Court of Appeals Fifth Circuit - No. 02-10908 Affired decision in favor of Dow AgroSciences
The Fifth Circuit Court of Appeals affirmed a District Court’s decision that FIFRA preempted the state law claims of Texas peanut farmers whose crops had suffered due to application of a federally registered herbicide.
 
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