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Lescs v. Dow Chemical Company

Topic(s): Preemption of Consumer Remedies
Citation: No. 97-2278 (4th Cir.)
Docket: 97-2278



This appeal involves a products liability case under Virginia law. The appellant, Cecile M. Lescs, alleges that she was injured by Dursban TC ("Dursban"), a pesticide manufactured by appellee Dow Chemical Company ("Dow") and applied to her home by appellee William R. Hughes, Inc. ("Hughes"), an exterminating company. Although Ms. Lescs brought negligence claims against Dow for negligent failure to warn and instruct, negligence per se, and negligent testing, the district court construed all of these claims as claims for negligent failure to warn or instruct and held that they were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136­136y. The district court also held that FIFRA preempted Ms. Lescs' claim for misrepresentation and some of her claims for breach of the implied warranty of merchantability against Dow, as well as her claims for negligence (except negligent application of the pesticide) and misrepresentation against Hughes.

The principal issue on appeal is whether the district court erred in ruling that FIFRA preempts Ms. Lescs' state-law claims. Her appeal also addresses the district court's ruling under Virginia law that she failed to produce adequate evidence in opposition to Dow's motion for summary judgment on the implied warranty claim.

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