                              NOT FOR PUBLICATION

                        UNITED STATES COURT OF APPEALS                        FILED
                               FOR THE NINTH CIRCUIT                           SEP 08 2011

                                                                           MOLLY C. DWYER, CLERK
TIMM ADAMS,                                      No. 10-35458               U .S. C O U R T OF APPE ALS




                 Plaintiff,                      D.C. No. 4:03-cv-00049-BLW

  and
                                                 MEMORANDUM *         **

CLINGER GROWER GROUP; FUNK
GROWER GROUP; HANSEN GROWER
GROUP; JENTZCH-KEARL GROWER
GROUP,

                 Plaintiffs - Appellees,

  v.

UNITED STATES OF AMERICA,

                 Defendant,

  and

E.I. DU PONT DE NEMOURS AND
COMPANY,

                 Defendant - Appellant.


             *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

        **   Appeal No. 10-35611 is consolidated with 10-35592 and 10-35458
but we resolve 10-35611 in a separate opinion filed simultaneously with this
memorandum disposition.
TIMM ADAMS,                               No. 10-35592

         Plaintiff,                       D.C. No. 4:03-cv-00049-BLW

 and

CLINGER GROWER GROUP; FUNK
GROWER GROUP; HANSEN GROWER
GROUP; JENTZCH-KEARL GROWER
GROUP,

         Plaintiffs - Appellants,

 v.

UNITED STATES OF AMERICA,

         Defendant,

 and

E.I. DU PONT DE NEMOURS AND
COMPANY,

         Defendant - Appellee.




              Appeal from the United States District Court
                        for the District of Idaho
            B. Lynn Winmill, Chief District Judge, Presiding



                                    2
                       Argued and Submitted February 8, 2011
                                Seattle, Washington

Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.


      Defendant-Appellant E.I. Du Pont De Nemours and Company (“DuPont”),

the manufacturer of the herbicide Oust, appeals from the district court’s judgment

and post-trial orders following a jury trial. We have jurisdiction pursuant to 28

U.S.C. §§ 1291, 1294(1). Because the facts of this case are well known by the

parties we do not repeat them here, except as necessary.

      1.     The district court found that Plaintiffs presented evidence that at most

showed DuPont’s nonfeasance, which cannot, as a matter of law, support an

assumed duty of care claim. It therefore granted DuPont’s Rule 50(b) motion as to

that claim. DuPont now asserts that it is entitled to a new trial1 as to all issues

because “stewardship principles impacted every aspect of the trial . . . and

ultimately infected the entirety of the jury’s verdict.”2




      1
         We review for abuse of discretion the denial of a Rule 59 motion for a new
trial. Jorgensen v. Cassiday, 320 F.3d 906, 918 (9th Cir. 2003).
      2
         DuPont also urges us to hold that a “corporate policy does not—and
cannot—give rise to a duty in tort.” The district court did not find that DuPont’s
corporate policy, alone, gave rise to a duty in tort. DuPont’s request for this
court’s guidance on the matter is therefore not squarely before us, and we decline
to address it.

                                            3
      DuPont has not, however, identified any case in which a new trial has been

granted in circumstances comparable to those here. We find no merit in DuPont’s

argument, particularly in light of the fact that it made strategic use of its corporate

stewardship policy—which was part of the assumed duty claim—during the trial.

DuPont must bear the risk of its own litigation strategy. Because DuPont has not

cited any relevant authority in support of its new trial argument, the district court

did not abuse its discretion when it denied DuPont’s motion for a new trial on this

ground.3

2.    DuPont argues that the district court erred with respect to Plaintiffs’

defective product claims.

             A.     Rule 50(b) Motion 4


      3
         DuPont also argues that the district court erred when—after granting
DuPont’s Rule 50(b) motion as to Plaintiffs’ assumed duty of stewardship
claim—it allocated the jury’s stewardship damages to the other claims upon which
Plaintiffs prevailed. The doctrine of invited error precludes DuPont from
complaining to this court about a strategy that it crafted below but now finds
undesirable. See United States v. Reyes-Alvarado, 963 F.2d 1184, 1187 (9th Cir.
1992). Accordingly, we see no basis for disturbing the district court’s reallocation
of damages as requested by DuPont.
      4
        We review de novo the denial of a Rule 50(b) motion for judgment as a
matter of law. EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir.
2009). Reversal is warranted where, construing “the evidence in the light most
favorable to the nonmoving party,” “the evidence permits only one reasonable
conclusion, and that conclusion is contrary to the jury’s verdict.” Id. (internal
quotation omitted).

                                            4
      DuPont argues that the district court should have granted its Rule 50(b)

motion on Plaintiffs’ defective product claim because manufacturers cannot be

held liable for manufacturing a product that does well what it is intended to do.

The Idaho supreme court has “‘h[e]ld that a plaintiff need not prove a specific

defect to carry his burden of proof.’” Stanley v. Lennox Indus., Inc., 102 P.3d

1104, 1107 (Idaho 2004) (quoting Farmer v. Int’l Harvester Co., 553 P.2d 1306,

1311 (Idaho 1976)). “‘A prima facie case may be proved by direct or

circumstantial evidence of a malfunction of the product and the absence of

evidence of abnormal use and the absence of evidence of reasonable secondary

causes which would eliminate liability of the defendant.’” Id. A defective

condition is “dangerous to an extent beyond that which would be contemplated by

the ordinary consumer . . . .” Farmer, 553 P.2d at 1311 (internal quotation

omitted).

      Here, Plaintiffs presented ample evidence from which a jury could infer that

Oust was “dangerous to an extent beyond that which would be contemplated by”

the government, much less an “ordinary consumer.” Id. For example, Plaintiffs

presented evidence that Oust is susceptible to erosion and unusually long-

lasting—both of which the jury could have construed as circumstantial evidence

that Oust is unreasonably dangerous. Moreover, the government’s use of Oust in


                                          5
accordance with its label and with DuPont’s active advice and participation, was

not abnormal use. Finally, Plaintiffs presented extensive evidence ruling out

possible secondary causes for their crop damage. DuPont, therefore, has not met

its burden to show that the “evidence permits only one reasonable conclusion.” Go

Daddy, 581 F.3d at 961. The district court properly denied DuPont’s Rule 50(b)

motion as to Plaintiffs’ defective product claim.

      B.     Superseding Cause Instruction 5

      DuPont argues that the district court erred in failing to instruct the jury on

the doctrine of superseding cause and that it is therefore entitled to a new trial. A

superseding cause is “an act of a third person or other force which by its

intervention prevents the actor from being liable for harm to another . . . .” Mico

Mobile Sales & Leasing, Inc v. Skyline Corp., 546 P.2d 54, 57–58 (Idaho 1975)

(internal quotation omitted). DuPont argues that the jury should have been

instructed that it could find that the government’s negligence was a superseding

cause of Plaintiffs’ damages which completely cut off DuPont’s liability.

      Arguably, the common law superseding cause doctrine, discussed in Mico in

1975, was subsumed in 1980 by § 6-1405 of the Idaho Products Liability Reform


      5
        We review the formulation of jury instructions for abuse of discretion and
de novo with respect to misstatements of law. Dang v. Cross, 422 F.3d 800, 804
(9th Cir. 2005).

                                           6
Act (“IPLRA”). See Corbridge v. Clark Equipment Co., 730 P.2d 1005 (Idaho

1986). Section 6-1405, “Conduct affecting comparative responsibility,” includes a

misuse defense, and DuPont did not request a misuse instruction.6 But even if the

IPLRA did not eliminate the superseding cause doctrine, see Exxon Co., U.S.A. v.

Sofec, Inc., 517 U.S. 830, 837–38 (1996); Orthman v. Idaho Power Co., 895 P.2d

561, 564 (Idaho 1995), any instructional error was harmless in light of the evidence

that Oust was, unbeknownst to the government, unreasonably dangerous. The

district court did not err in failing to give a superseding cause jury instruction.

3.    DuPont argues that the district court made numerous errors with respect to

Plaintiffs’ failure to warn claims.

      A.     FIFRA Preemption

      DuPont argues that the district court should have granted its Rule 50(b)

Motion as to Plaintiffs’ failure to warn claim because it is preempted by the

Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). FIFRA requires

that pesticides not be misbranded. 7 U.S.C. § 136(q)(1)(A), (F). FIFRA explicitly

does not preempt all state regulation of pesticides. 7 U.S.C. § 136v(a), (b).


      6
        Even assuming that the district court should have construed DuPont’s
superseding cause request as a misuse defense request, any error was harmless.
The core of both doctrines is a question of proximate causation, which the district
court instructed the jury it must find in order to conclude that DuPont was liable
for Plaintiffs’ defective product claim.

                                            7
      We employ a two-part test to determine whether FIFRA preempts a

particular state law claim. See Bates v. Dow Agrosciences, LLC., 544 U.S. 431,

444 (2005). First, the state law “must be a requirement ‘for labeling or

packaging’; rules governing the design of a product, for example, are not pre-

empted.” Id. (quoting 7 U.S.C. § 136v(b)). “Second,” the state law “must impose

a labeling or packaging requirement that is ‘in addition to or different from those

required under this subchapter.’” Id. (quoting 7 U.S.C. § 136v(b)).

      Here, the district court’s jury instructions 30 and 33 stated the necessary

elements of Plaintiffs’ failure to warn claims. Neither of the failure to warn claims

satisfy Bates’ first condition for preemption: none of the elements is a

“requirement ‘for labeling or packaging.’” 544 U.S. at 444 (emphasis in original).

Indeed, the words “label” and “package” do not appear in Jury Instruction 30 or 33.

Plaintiffs’ failure to warn claims are broader than DuPont’s construction of them as

solely based on inadequate labeling. DuPont’s preemption argument is premised

on an inaccurate representation of Plaintiffs’ claims and is unavailing.

      B.     Failure to Warn Jury Instructions

             1.     The Instruction Properly Tracked FIFRA

      DuPont alleges that, even if FIFRA does not preempt Plaintiffs’ failure to

warn claims, the district court’s Jury Instructions 30, 33, and 34 did not properly


                                          8
track FIFRA requirements. To begin with, Instructions 30 and 33 were not

required to track FIFRA. Instruction 34 explained that Plaintiffs allege that

DuPont violated the Idaho Pesticide and Chemigation Act. Idaho Code § 22-3401

et seq. The Idaho Pesticide and Chemigation Act claim does impose a labeling

requirement, so the jury instruction must be “equivalent to, and fully consistent

with, FIFRA’s misbranding provisions.” Bates, 544 U.S. at 447. The instruction

need not, however, be “phrased in the identical language as its corresponding

FIFRA requirement.” Id. at 454 (emphasis in original). Jury Instruction 34 is fully

consistent with FIFRA since it sufficiently tracks FIFRA’s own requirements. The

district court did not err in instructing the jury on Plaintiffs’ failure to warn claims.

             2.     Actual Knowledge and Sophisticated Purchaser Defenses

      DuPont argues that the district court erred in not instructing the jury on the

failure to warn defenses of actual knowledge of danger and sophisticated

purchaser. In Puckett v. Oakfabco, Inc., 979 P.2d 1174 (Idaho 1999), the court

explained that “where the undisputed facts lead to only one reasonable conclusion

the court may rule as a matter of law. . . .[t]he question becomes whether the

danger involved is so obvious that it is unreasonable to impose on the manufacturer

a duty to warn.” Id. at 1182 (internal quotation omitted).




                                            9
      Here, there were endless disputed facts that did not lead to only one

reasonable conclusion that, as a matter of law, Oust’s danger was “so obvious” that

DuPont should have no duty to warn, or that the government had actual

knowledge. Under Puckett, if there are factual disputes as to these issues, the jury

comparatively apportions fault for the non-consumer plaintiff’s injuries between

the defendants. This apportionment is also required by Idaho Code § 6-1405(2)(b).

The district court instructed the jury on comparative allocation of fault for

Plaintiffs’ failure to warn claims, which is what Idaho law requires. The district

court did not abuse its discretion in not providing more.

      DuPont also argues that the jury should have been instructed on the learned

intermediary and sophisticated purchaser doctrines. In Sliman v. Alum. Co. of Am.,

731 P.2d 1267, 1270–71 (Idaho 1986), the court explained that “in some

circumstances a supplier positioned on the commercial chain remote from the

ultimate consumer may fulfill its duty to warn by adequately warning an

intermediary.” The court provided two examples. First, a “doctor stands as a

learned intermediary between the manufacturer and the ultimate consumer.” Id. at

1271 (internal quotation omitted). Second, a “bulk supplier, one who sells a

product to another manufacturer or distributor who in turn packages and sells the

product to the public,” may also invoke the defense. Id. The facts of this case


                                          10
present neither example noted by the Idaho supreme court in Sliman, nor a

situation so analogous that the district court can be said to have abused its

discretion by not extending the principle. Both of the Sliman examples involve

voluntary purchasers of a product, which the Plaintiffs were not.

      And to the extent that Idaho recognizes that a manufacturer has no duty to

warn a sophisticated purchaser of any inherent dangers in its product, see Mico,

546 P.2d at 61; see also Bromley v. Garey, 979 P.2d 1165, 1171 (Idaho 1999)

(citing Restatement (Second) of Torts § 388 (1965)), any error was more probably

than not harmless. Head v. Glacier N.W. Inc., 413 F.3d 1053, 1063 (9th Cir.

2005). The jury heard substantial evidence to the effect that Oust was not just

inherently dangerous as an herbicide, but abnormally so.

                                                            7
      C.     Evidence of Subsequent Remedial Measures

      The district court admitted into evidence the Environmental Protection

Agency’s (“EPA”) Re-Registration Eligibility Determination (“RED”) for Oust,

which summarizes Oust’s risks and describes remedial measures necessary for

Oust re-registration. DuPont argues that the RED is a subsequent remedial

measure that is inadmissible under Federal Rule of Evidence 407 (“Rule 407”).



      7
      We review evidentiary rulings for abuse of discretion. Sprint/United
Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008).

                                          11
      We have held that Rule 407 “only applies to a defendant’s voluntary

actions.” Pau v. Yosemite Park and Curry Co., 928 F.2d 880, 888 (9th Cir. 1991)

(emphasis in original). Because the EPA and the Bureau of Land

Management—the responsible government agency in this case—are separate

federal agencies, admitting the EPA’s RED into evidence against DuPont did not

run afoul of Rule 407’s purpose “of encouraging potential defendants to remedy

hazardous conditions without fear that their actions will be used as evidence

against them.” Id. Accordingly, the district court did not abuse its discretion under

Rule 407 in admitting the RED into evidence. Nor did the district court abuse its

discretion under Rule 403 in concluding that the RED’s danger of unfair prejudice

did not substantially outweigh its probative value.

4.    DuPont argues that the district court’s damages award violates Idaho’s

economic loss rule.8 In Brian and Christie, Inc. v. Leishman Elec., Inc., 244 P.3d

166, 172 (Idaho 2010), the court explained that “[d]amages from harm to person or

property are not purely economic losses.” Rather than limiting the damages

available in a negligence action, the economic loss rule means that the “seller has


      8
         The district court concluded, and DuPont admits, that it has waived this
argument as to Bellwether Plaintiffs. DuPont’s economic loss rule argument
remains relevant, however, to the future damages trial for the non-Bellwether
Plaintiffs. We therefore address this argument on the merits.


                                          12
no duty under the law of negligence to design, manufacture, or sell property that

will confirm to the buyer’s economic expectations.” Id. This rule does not bar

Plaintiffs’ claims for two reasons. First, Plaintiffs did not have a contractual

relationship with DuPont. Cf. Duffin v. Idaho Crop. Imp. Ass’n, 895 P.2d 1195,

1199–1200 (Idaho 1995). Thus, they had no “economic expectations,” and the

economic loss rule does not apply. Second, the damages DuPont challenges were

awarded to compensate Plaintiffs for injuries that Oust caused to their property,

and there is an exception to the economic loss rule: economic loss is recoverable in

tort as a loss parasitic to an injury to person or property. See Just’s, Inc. v.

Arrington Const. Co., 583 P.2d 997, 1004 n.1 (Idaho 1978). Accordingly, Idaho’s

economic loss rule does not bar Plaintiffs’ damages.

5.    DuPont argues that Idaho law precludes the debt-based costs portion of

Plaintiffs’ damages award. The debt-based costs at issue reimburse Plaintiffs for

the money they “paid on their operating loans and lines of credit due to Oust crop

damage.” This money represents “increases in contract interest payments, i.e.,

additional interest payments pursuant to a contract between the bellwether

plaintiffs and their banks.” These contractual interest payments constitute

consequential damages insofar as they are designed to compensate Plaintiffs for

actual money damages.


                                            13
      The parties agree that this issue is controlled by Spreader Specialists, Inc. v.

Monroc, Inc., 752 P.2d 617 (Idaho Ct. App. 1987), overruled on other grounds by

Walton, Inc. v. Jensen, 979 P.2d 118 (Idaho Ct. App. 1999). Spreader “h[e]ld that

interest charges incurred on a loan obtained in good faith, as part of a reasonable

course of action to mitigate losses, may be recovered as an item of consequential

damages.” Id. at 624. The court explained that while “[m]ost cases dealing with . .

. the recoverability of interest, involve claims for interest allegedly due as

compensation for the detention of money during the time between injury and

compensation . . . But here . . . [the plaintiff] seeks to recover a sum actually

expended by it as a result of [the defendant’s] tortious conduct.” Id. at 623–24

(emphasis in original). The debt-based costs here are similar to the Spreader costs

insofar as they compensate Plaintiffs for “a sum actually expended by [them] as a

result of [DuPont’s] tortious conduct.” 752 P.2d at 624. Thus, Spreader’s analysis

reasonably extends to the present dispute and supports the award of debt-based

consequential damages.9

      No. 10-35458: AFFIRMED.


      9
        Dupont argues that if this court accepts only some of its arguments
regarding Bellwether Plaintiffs’ claims, Idaho and federal law require a new trial
because the jury did not allocate fault and damages between the defendants on a
claim-by-claim basis. Because we do not agree with any of DuPont’s arguments,
we need not address this issue.

                                           14
    Plaintiffs’ motion to dismiss their cross-appeal, No. 10-35592, is

GRANTED. No. 10-35592: DISMISSED.




                                       15
