Complaint ¶ 41, Hardin v. BASF Corp, 4:00-cv-00500 (E.D. Ark. June 26, 2000). The district court granted summary judgment to BASF on the ground the action was expressly preempted by FIFRA, Hardin v. BASF Corp., 290 F.Supp.2d 964, 967 (E.D.Ark. 2003), but on appeal the Eighth Circuit remanded, Hardin v. BASF Corp., No. 03-3624 (8th Cir. June 29, 2005). On remand the parties settled.
Plaintiffs brought this action in federal district court, alleging state law claims for negligence and strict liability, and also advancing claims under the Arkansas Deceptive Trade Practices Act (ADTPA). The district court dismissed the action as preempted, reasoning that, regardless of how the issues were couched by plaintiffs, they were failure-to-warn claims, or if plaintiffs prevailed on another theory, the resolution would require a label change. The district court held that both failure-to-warn claims and successful claims that would result in a label change are preempted by FIFRA. Hardin v. BASF Corp., 290 F.Supp.2d 964, 970-71 (E.D.Ark. 2003). The initial complaint did not contain the ADTPA allegations, and plaintiffs moved to amend the petition to include these claims.
Netland, 284 F.3d at 898 (quoting Nat'l Bank of Commerce of El Dorado, Ark., 165 F.3d at 608); see also Grenier v. Vermont Log Bldgs., Inc., 96 F.3d 559, 564 (1st Cir. 1996) ("merely to call something a design or manufacturing defect claim does not automatically avoid FIFRA's explicit preemption clause.");Hardin v. BASF Corp., 290 F. Supp. 2d 964, 968 (E.D. Ark. 2003) ("Under the law of this Circuit, whether a plaintiff's claim is preempted under § 136v(b) does not depend on the label a plaintiff attaches to his claim"); In re StarLink Corn Prod. Liab. Litig., 212 F. Supp. 2d 828, 836 (N.D. Ill. 2002) ("plaintiff cannot avoid [FIFRA] preemption by artful pleading");Kuiper v. Am. Cyanamid Co., 913 F. Supp. 1236, 1242 n. 1 (E.D. Wis. 1996), aff'd, 131 F.3d 656 (7th Cir. 1997), cert. denied 523 U.S. 1137 (1998) (reasoning preemption should not turn on the name a plaintiff gives to his cause of action); Traube v. Freund, 775 N.E. 2d 212, 217 (Ill.App.Ct. 2002) ("FIFRA preemption clearly does not turn upon the name a plaintiff gives to his or her cause of action."). Thus, although Plantiffs' claims are cloaked in the legal garb of product liability, implied warranty of fitness for a particular purpose, implied warranty of merchantability, and recklessness, if these claims are actually premised upon the adequacy of the product's labeling or upon a fail