Turner v. Chevron U.S.A

Filed 5/15/06  Turner v. Chevron U.S.A. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

            APPEAL from a judgment of the Superior Court of Los Angeles County, Wendell  Mortimer, Jr., Judge.  Reversed.

            Metzger Law Group, Raphael Metzger and Monica L. Frye for Plaintiff and Appellant.

            Steptoe & Johnson, Lawrence P. Riff; Law Offices of Marshall Pearlman, Marshall Pearlman for Defendant and Respondent.

            Gordon & Rees, P. Gerhardt Zacher and Linda J. Sinclair for Syngenta Crop Protection, Inc.; Barnes & Thornburg, Dean T. Barnhard for Dow AgroSciences as Amici Curiae on behalf of Defendant and Respondent.

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INTRODUCTION

            Defendant and respondent Chevron U.S.A. Inc., manufactured Paraquat, an herbicide.  Plaintiff and appellant Norman Turner^[1] sprayed and mixed Paraquat from 1973 to 1979.  He thereafter developed interstitial lung disease or pulmonary fibrosis, which Paraquat is known to cause.  Claiming that Paraquat caused his disease, Turner sued Chevron for, among other things, strict liability and breach of implied warranties.  As to the strict liability claim, Turner alleged both the consumer expectations and risk-benefit theories of liability.            After Turner gave his opening argument, Chevron moved for nonsuit as to all of Turner's claims on the ground that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts them.  (7 U.S.C. §  136 et seq.)  The trial court granted the nonsuit motion only as to the strict liability, design defect claim under the risk-benefit test.  The case therefore went to trial on strict liability, design defect under the consumer expectations test and breach of implied warranties claims.  The jury found for Chevron on both claims.

            Turner now appeals, contending that his strict liability claim under the risk-benefit test is not preempted.  Chevron responds that FIFRA does impliedly preempt it, and, even if it does not, no prejudice resulted from the grant of nonsuit.  We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

I.            Paraquat.

            Paraquat is an herbicide Caltrans used for weed control.  The United States Environmental Protection Agency first registered Paraquat in 1964.  During the times at issue, Chevron manufactured Paraquat.  Paraquat is a known cause of interstitial lung disease, which is also referred to as pulmonary fibrosis. Interstitial lung disease impairs gas exchange in the lungs by causing scarring in air sacs. 

            During the times relevant to this action, Paraquat's label read, in part:  â€