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Arnold vs. The Dow Chemical Company

California Court of Appeal reverses dismissal of pesticide case

In this case the Law Offices of Raphael Metzger represented two little girls who were injured as a result of domestic application of pesticides. Ashley suffered pancreatitis and toxic hepatitis. Alexa, who was in utero at the time of the application, sustained an intrauterine stroke, resulting in hemiparesis (paralysis affecting one side of the body) and hemianopsia (blindness affecting half of the field of vision).

The firm alleged two causes of action on behalf of the children: A claim for design defect liability because the pesticides failed to function as safely as an ordinary consumer would expect, and a claim that the manufacturers and distributors breached implied warranties of merchantability, fitness for a particular purpose, and safety.

The defendants sought summary judgment, claiming that these two causes of actions were an "end run" around FIFRA Preemption - preemption of state claims alleging inadequate warnings under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The trial court granted summary judgment on this basis.

The Court of Appeal reversed, finding that the causes of action were not preempted by FIFRA. The Court wrote: "Here, the record shows that appellants used the pesticides which allegedly caused their injuries, as directed. Under those facts, we believe that the burden of the cost of serious injury actually caused by pesticides should, as a matter of public policy, be borne by the pesticide manufacturers and distributors rather than the innocent consumers."

The Court of Appeal awarded the victims their costs of suit and remanded the case to the Los Angeles Superior Court for trial.

The case is important for consumers, because it recognizes that pesticides are consumer products and that pesticide manufacturers will not be immunized under FIFRA from liability when they cause toxic injuries to consumers.

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