(CN) – The 3rd Circuit reinstated the negligent misrepresentation and fraud claims of New Jersey blueberry farmers who say a pesticide made by Novartis reacted badly with fungicides and ruined their crops.
Farmers said the new version of Novartis’ Diazinon pesticide, when mixed with the fungicides Captan and Captec, caused blotches, depressions and spots on their plants, and even killed some of their crops.
The pesticide allegedly included a surfactant, meant to improve the consistency, that reacted badly with the fungicides.
Blueberry farmers said Novartis should have warned them about the mixture, pointing to a promotional brochure that failed to mention the fungicide reaction.
The Philadelphia-based appeals court overturned a federal judge’s decision that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) pre-empts the farmers’ state-law negligent misrepresentation and fraud claims.
Writing for the 2-1 majority, Judge Walter Stapleton said the marketing brochure does not qualify as “labeling” under the Act. The 3rd Circuit also ruled for the farmers on their failure-to-warn claim, saying state law does not pre-empt federal law because it provides no special duty to warn beyond FIFRA.
The appeals court remanded the issue of whether the pesticide was defectively designed, as it was unclear whether the practice of combining pesticides with fungicides was a reasonably foreseeable “misuse” of the product.
The blueberry farmers argued that it was, claiming tank mixing is a common practice among farmers.
Judge Thomas Hardiman dissented on the last issue, saying Novartis had no duty to test the pesticide to see if it would mix well with fungicides.
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