                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-2182
                                   ___________

Kim Netland,                            *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Hess & Clark, Inc.,                     *
                                        *
             Appellee.                  *
                                   ___________

                          Submitted: December 14, 2001
                              Filed: March 26, 2002
                                  ___________

Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.
                            ___________

MAGILL, Circuit Judge.

      Kim Netland brings this action against Hess & Clark, Inc. ("Hess"), the
manufacturer of the pesticide KenAg Bovinol ("Bovinol"), claiming damages for
injury resulting from Netland's use of Bovinol on his horses. The district court1
granted Hess's motion for summary judgment holding that Netland's claims are
preempted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7
U.S.C. § 136 et seq., because they are an impermissible challenge to Bovinol's label.
For the reasons stated below, we affirm.

      1
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
                                           I.

      Netland, in the summer of 1994, following his junior year of high school, used
Bovinol to control flies on his family's three horses. Margaret Netland, Netland's
mother, purchased the pesticide in June 1994, from a local retail feed store for the
purpose of minimizing the risk of injury to Netland from the unpredictable behavior
of horses due to the annoyance of flies. The sales clerk informed Mrs. Netland that
the pesticide would work for horses. Prior to giving Netland the pesticide, Mrs.
Netland read the warning label and wore plastic gloves to pour the pesticide into a
bathroom cleaner spray bottle. Thereafter, Netland sprayed the pesticide on his
horses three to four times a week over a six-week period. Prior to riding, Netland
sprayed each horse with eight to ten squirts of the pesticide and would normally ride
the horse within a minute after spraying it with the pesticide. Netland did not wear
any protective clothing or equipment when he used the pesticide and did not read the
Bovinol label. Netland believes that he got the pesticide on his skin by touching the
horses because his clothes were damp after riding.

       In mid-August 1994, Netland began high school football practice and began
to experience fatigue and bruising. On September 28, 1994, Netland collapsed on his
way to school and was taken to his family physician, Dr. Thabes. Realizing that
Netland had a severe blood problem, Dr. Thabes transferred Netland to a
hematologist in Fargo, North Dakota, where he was diagnosed with acquired aplastic
anemia.2 Over the next year, Netland's treatment consisted of large doses of steroids
and approximately thirty-five blood transfusions. As a result of this treatment, one
of Netland's hips failed and was replaced with a prosthesis. Netland's other hip is also
at risk.



      2
      Aplastic anemia is an anemia characterized by defective function of the bone
marrow, such that there is a failure to properly form all types of blood cells.

                                          -2-
       Bovinol is a registered insecticide with the Environmental Protection Agency
("EPA") under FIFRA and carries an EPA-approved label. Dichlorvos ("DDVP"),
the active ingredient in Bovinol, is an organophosphate, which is absorbed into the
human body by ingestion, inhalation, and skin absorption. The Bovinol label
describes the approved and lawful uses of the pesticide, including use on cattle, in
animal buildings (horse barns, shelter sheds, dairy barns, milk sheds), in poultry
houses, dog kennels, and outdoor uses (picnic grounds, loading docks, outdoor
latrines, parking areas, refuse areas, around service stations, open-air drive-ins,
outdoor ice cream stands, and garbage collection and disposal areas). The label does
not expressly state that Bovinol may be used on horses. The Bovinol label also
contains a precautionary instruction and warning.3

       On July 1, 1999, Netland filed a three-count complaint against Hess alleging
(1) strict liability in that Bovinol was defectively designed and unreasonably
dangerous, (2) failure to warn users of the dangerous characteristics inherent in the


      3
          Specifically, the warning contained on the Bovinol label states:

                      PRECAUTIONARY STATEMENTS
                          HAZARDOUS TO HUMANS
                          AND DOMESTIC ANIMALS
                                   WARNING
      May be fatal if swallowed, inhaled or absorbed through the skin or eyes.
      Rapidly absorbed through skin and eyes. Do not get into eyes, on skin
      or on clothing. Do not breathe vapor or spray mist. Wash thoroughly
      with soap and water after handling and before eating or smoking. Do
      not contaminate feed, water, foodstuffs, milk or milking utensils.
      Wear clean natural rubber gloves, protective clothing, and goggles,
      faceshield or equivalent. Wear a pesticide respirator jointly approved
      by the Mining Enforcement and Safety Administration (MESA) and the
      National Institute for Occupational Safety and Health (NIOSH) under
      the provisions of 30 CFR Part 11. Wear impervious footwear or
      protective covers as shoes, boots and other articles made of leather or
      similar porous materials may be dangerously contaminated.

                                           -3-
Bovinol product, and (3) negligence and breach of warranty in that Hess failed to use
reasonable care in the design, manufacture, and sale of Bovinol. On January 19,
2001, Hess moved for summary judgment asserting federal preemption under FIFRA
and also that Netland failed to offer admissible proof of causation. Hess also filed a
motion to exclude the opinion testimony of several of Netland's expert witnesses.

       The district court granted Hess's motion for summary judgment without
reaching the issue of causation or the admissibility of the testimony of Netland's
expert witnesses. In particular, the district court found that each of Netland's claims
is essentially an attack on Bovinol's EPA-approved label, and therefore is preempted
by FIFRA. Netland v. Hess & Clark, Inc., 140 F. Supp. 2d 1011, 1017-19 (D. Minn.
2001). Netland timely appealed.

                                          II.

       A grant of summary judgment is reviewed de novo. Nat'l Bank of Commerce
v. Dow Chem. Co., 165 F.3d 602, 606 (8th Cir. 1999). Summary judgment is
appropriate if, after viewing the facts and all reasonable inferences in the light most
favorable to the nonmoving party, here Netland, the record demonstrates that there
is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. Id. See also Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). In addition, preemption is a question of law
reviewed de novo. Nat'l Bank, 165 F.3d at 607.

                                          A.

      Under FIFRA, all pesticides sold in the United States must be registered with
the EPA. See 7 U.S.C. § 136a(a) (1994). When applying for registration,
manufacturers must submit draft label language addressing a number of topics
including ingredients, directions for use, and any information of which they "are
aware regarding unreasonable adverse effects of the pesticide on man or the

                                         -4-
environment." 40 C.F.R. § 152.50(f)(3) (2001). Prior to registering a pesticide, the
EPA must find that its labeling complies with FIFRA's requirements, such as a
determination that the pesticide is not misbranded, and that when the pesticide is used
in accordance with its labeling that it will perform its intended function without an
unreasonable adverse effect on the environment. See 7 U.S.C. § 136a(c)(5) (1994).
Finally, FIFRA contains an express preemption clause, which provides that a state
"shall not impose or continue in effect any requirements for labeling . . . in addition
to or different from those required under this subchapter." 7 U.S.C. § 136v(b) (1994).



       In National Bank, we held that once a label is approved, FIFRA expressly
provides a defense, arising from preemption, against certain state law claims. 165
F.3d at 608. Specifically, we held that FIFRA preempts state common law claims for
"'inadequate labeling or failure to warn.'" Id. (quoting Bice v. Leslie's Poolmart, Inc.,
39 F.3d 887, 888 (8th Cir. 1994)). Moreover, we stated:

      It is immaterial whether an inadequate labeling or failure to warn claim
      is brought under a negligence or products liability theory. If a state law
      claim is premised on inadequate labeling or a failure to warn, the impact
      of allowing the claim would be to impose an additional or different
      requirement for the label or packaging.

Id. (footnote omitted). Common law claims for breach of express warranty also are
preempted by FIFRA. Id. (citing Welchert v. Am. Cyanamid, Inc., 59 F.3d 69, 73
(8th Cir. 1995)).

      Netland concedes that our decision in National Bank preempts his state law
claims based on labeling or packaging requirements in addition to or different from
those required under FIFRA. Nevertheless, Netland asks us to revisit our prior
decisions insofar as they hold that state law claims based on failure to warn are
preempted by FIFRA. Netland maintains that a revisiting is necessitated by the
Supreme Court's decision in Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), and an

                                          -5-
amicus curiae brief submitted by the United States Department of Justice,
representing the EPA, filed in Etcheverry v. Tri-Ag Serv., Inc., 993 P.2d 366 (Cal.
2000), which articulated the government's position that FIFRA does not preempt any
state law theories of liability, including failure to warn claims that implicate pesticide
labels. In addition, Netland draws our attention to two recent state court decisions
finding failure to warn claims not preempted in light of these recent developments.
See Sleath v. W. Mont Home Health Servs., Inc., 16 P.3d 1042, 1053 (Mont. 2000);
Brown v. Chas. H. Lilly Co., 985 P.2d 846, 853 (Ore. 1999). The law is well
established, however, that this court may not overrule one of its prior decisions unless
it does so en banc. Minn. Citizens Concerned for Life v. FEC, 113 F.3d 129, 131 (8th
Cir. 1997). Thus, until modified or overruled by the court en banc, National Bank is
the law of this circuit. Accordingly, Netland's failure to warn and breach of warranty
claims are preempted by FIFRA.4



                                           B.

       Next, Netland contends that his claims alleging strict liability and negligence
fall outside the state law causes of action that are preempted by FIFRA. He argues
that FIFRA preempts only state law claims that directly challenge the product label;
therefore, FIFRA does not preempt his claims that Bovinol was defectively designed

      4
        At least two of our sister circuits have concluded that the established
interpretation of the FIFRA preemption clause is unchanged by the Supreme Court's
decision in Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996). See, e.g., Grenier v. Vt.
Log Bldgs., Inc., 96 F.3d 559, 563 (1st Cir. 1996) ("It . . . is now settled by the
Supreme Court in Cipollone [v. Liggett Group, Inc., 505 U.S. 504 (1992)] and Lohr,
that 'requirements' in this context presumptively includes state causes of action as
well as laws and regulations."); Hawkins v. Leslie's Pool Mart, Inc., 184 F.3d 244,
250 (3d Cir. 1999) ("even assuming that FIFRA is analogous to the [MDA] addressed
by the Supreme Court in Medtronic, contrary to [plaintiff's] assertions, we do not read
that case as standing for the overarching premise that tort claims fall outside
'preempted requirements'.").

                                           -6-
and unreasonably dangerous. The district court disagreed because it concluded that
Netland failed to produce any evidence of errors in the manufacture of Bovinol other
than the adequacy of the warning. Netland, 140 F. Supp. 2d at 1017. Moreover, the
district court found that Netland's liability expert, Dr. Lipsey, testified that Bovinol
is safe if properly used and distributed with appropriate labeling, and therefore,
Netland failed to produce any evidence demonstrating that Bovinol is unreasonably
dangerous. Id. at 1017-18. Thus, the district court concluded that Netland's claims
alleging strict liability and negligence were nothing more than a challenge to
Bovinol's label for failure to warn against using the pesticide on horses before riding
them. Id. at 1017-19.

        On appeal, Netland argues that the district court's decision was in error because
his complaint asserts a claim for defective design, and therefore is not preempted by
FIFRA. We agree with Netland that defectively manufactured or designed products
properly labeled under FIFRA remain subject to state regulation, in the form of
common law or other claims. Nevertheless, "if the state law claim is premised on
inadequate labeling or a failure to warn," which results in the imposition of additional
or different labeling requirements, the claim is nonetheless preempted regardless of
the guise under which the claim is presented. Nat'l Bank, 165 F.3d at 608. Thus, our
task is to determine whether Netland's claims are essentially a challenge to Bovinol's
label or the overall design of the pesticide. To guide our analysis, we must ask
whether in seeking to avoid liability for any error, would the manufacturer choose to
alter the label or the product. See Worm v. Am. Cyanamid Co., 5 F.3d 744, 747-48
(4th Cir. 1993) (line between mislabeling and defective design may not always be
clear but may be resolved by asking whether manufacturer would alter the product or
the label). After careful review of the entire record, we agree with the district court
and hold that Netland's claims are preempted by FIFRA because they are an
impermissible challenge to the pesticide's label.

      Netland contends that his claim is not preempted based on Dr. Lipsey's expert
testimony that Bovinol was defectively designed and unreasonably dangerous

                                          -7-
because it contained DDVP as one of the active ingredients in its formula. In
particular, Netland asserts that Dr. Lipsey testified that a safer and more effective
alternative exists to DDVP, that being pyrethrum. We disagree with Netland's
characterization of Dr. Lipsey's testimony. Dr. Lipsey did not testify that the
inclusion of DDVP makes Bovinol defective or unreasonably dangerous. In fact, Dr.
Lipsey testified that Bovinol is an EPA-registered and approved product that can be
safely used under appropriate circumstances. Dr. Lipsey's testimony merely indicated
that Dr. Lipsey personally sprays his horses prior to riding them with pyrethrum, that
he personally recommends pyrethrum for horses, and that most people use pyrethrum
for horses. It is illogical to conclude that Bovinol is defectively designed or
unreasonably dangerous because a substitute product might be the preferred pesticide
for horses.

       Dr. Lipsey's remaining complaints with Bovinol all directly challenge the
pesticide's label. First, Dr. Lipsey stated "[a] prudent manufacturer would have put
the fact that [Bovinol] can affect bone marrow; that this . . . can cause leukemia [on
the label]."5 Dr. Lipsey's second complaint is that the label is not specific about the
parameters of using the product on horses. In particular, Dr. Lipsey testified, "[the
label does not say] 'Do not apply to horses.' They said okay to horse barns and okay
to pests that get on horses, but they didn't exclude horses, so you can assume that you
can apply it to horses." Dr. Lipsey's final complaint with Bovinol also concerns the
pesticide's label, but in this instance, he opines that the label's instructions to the user
to use personal protective equipment is "overkill," and the label should merely state
"avoid breathing the vapors" or "avoid getting it on your skin." While Dr. Lipsey's
complaints with Bovinol may indeed create genuine issues of fact, they nonetheless
are insufficient to avoid summary judgment because they fail to offer any evidence
of a design defect unrelated to the label. Thus, Netland's claims are preempted by
FIFRA.

       5
       Elaborating on this point, Dr. Lipsey further testified that the label should
include information about chronic health effects so that the user could decide whether
they wanted to use it and could handle it in a safe manner.

                                            -8-
                                        III.

      Because we find that the premise of each of Netland's claims is Bovinol's label
and is therefore preempted by FIFRA, we affirm the well-reasoned and thorough
opinion of the district court granting summary judgment in favor of Hess.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -9-
