November 03, 2008

Federal Court Dismisses Claims Against Firm Client Syngenta

In one of the first federal court cases to address the preemption of claims under the  Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) after the Supreme Court's reasoning in Bates v. Dow AgroSciences, the District of New Jersey dismissed on October 10 the final remaining pieces in a decade-long suit by blueberry growers against Syngenta Crop Protection, Inc.

A group of New Jersey growers claimed the Syngenta pesticide Diazinon AG600 WBC damaged their blueberry fields when they combined Diazinon with other companies' fungicide products in the same application. Syngenta did not recommend such a "tank mix."

Following instructions from the Third Circuit, the district court found significant portions of the growers' claims were preempted under the Supreme Court's reasoning in Bates. The court found the product brochure could constitute FIFRA labeling because it "accompanied" the product, but it did not matter because Syngenta had effectively proved the plaintiffs had never even seen the brochure before purchasing and using the product.

Further, no plaintiff had relied on any oral representations by Syngenta about the product, nor had any plaintiff seen written materials other than the label on the product packaging. Because the growers' failure-to-warn claims were premised so directly on the label, the court found they were preempted by FIFRA.

The court also ruled that when used alone on blueberries as recommended, there was no evidence of any Diazinon design defect. The court enforced the EPA decision to put the burden on an applicator to perform a small field test before applying an off-label tank mix—and to apply a non-recommended combination at the applicator's own risk. The court refused to stretch New Jersey product liability law so far as to include the use of such non-recommended mixes.

The trial team included Faegre & Benson lawyers John Mandler and Kristin Eads.

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