          IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
                                    AT JACKSON
               _______________________________________________________
                                       )
HARRIS HUGHES, JR.,                    )     Haywood County Circuit Court
                                       )     No. 2898
   Plaintiff/Appellant.                )
                                       )
VS.                                    )     C.A. No. 02A01-9611-CV-00290
                                       )
TENNESSEE SEEDS OF
BROWNSVILLE, INC., WATERFIELD )
GRAIN CO., INC., LINDA FREEMAN, )
                                       )
                                                   FILED
in her capacity as Manager of          )
                                             November 14, 1997
TENNESSEE SEEDS OF                     )
BROWNSVILLE, INC., FMC                 )
                                             Cecil Crowson, Jr.
CORPORATION, and MILES                 )      Appellate C ourt Clerk
CORPORATION,                           )
                                       )
   Defendants/Appellees.               )
______________________________________________________________________________

From the Circuit Court of Haywood County at Brownsville.
Honorable Dick Jerman, Jr., Judge


Robert L. Green,
Darryl D. Gresham,
NEELY, GREEN, FARGARSON, BROOKE & SUMM ERS, Memphis, Tennessee
Steven R. Walker, Memphis, Tennessee
Attorneys for Plaintiff/Appellant.

James M . Doran, Jr.,
E. Frances Coughlin,
MANIER, HEROD, HOLLABAUGH & SMITH
Attorneys for Defendants/Appellees Tennessee Seeds of Brownsville, Inc., Waterfield Grain Co.,
Inc., and Linda Freeman.

Matthew J. Sweeney, III, Nashville, Tennessee
Lee Davis Thames, Jackson, Mississippi
Michael E. McWilliams, Jackson, Mississippi
Attorneys for Defendant/Appellee FMC Corporation.

Larry E. Killebrew,
Bradley E. Trammell,
BAKER, DONELSON, BEARMAN & CALDWELL, Memphis, Tennessee
Jack E. Urquhart,
John W. Ghezzi,
HOTLZM AN & URQUHART, P.C., Houston, Texas
Attorneys for Defendant/Appellee Miles, Inc.


OPINION FILED:

AFFIRMED IN PART, REVERSED IN PART AND REMANDED


                                           FARMER, J.

CRAWFORD, P.J., W.S.: (Concurs)
LILLARD, J.: (Concurs)
              Plaintiff Harris Hughes, Jr., appeals the trial court’s order entering summary

judgment in favor of Defendants/Appellees Tennessee Seeds of Brownsville, Inc., Waterfield

Grain Company, Linda Freeman (in her capacity as manager of Tennessee Seeds), FMC

Corporation, and Miles Corporation.1 We reverse in part the trial court’s judgment based on our

conclusion that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) does not

preempt all of Hughes’ state-law claims against the Defendants.



                              I. Facts and Procedural History



              In ruling on the Defendants’ motions for summary judgment, the trial court, and

this court on appeal, must view all of the evidence in favor of Hughes, the nonmoving party, and

draw all reasonable inferences from the evidence in Hughes’ favor. Byrd v. Hall, 847 S.W.2d

208, 214 (Tenn. 1993). The evidence in this case consisted chiefly of Hughes’ lengthy

deposition. When viewed in accordance with the foregoing standard, Hughes’ deposition reveals

the following facts.



              In the spring of 1991, Hughes planted approximately 4200 acres of cotton. When

Hughes began planting his crop in April 1991, he used a chemical program which included

Terraclor Super X, Temik, Command, Di-Syston, and Cotoran. Hughes included Command in

his chemical program based upon the advice of Linda Freeman, the manager of Tennessee Seeds,

and Tom Hayes, a representative of FMC. Freeman and Hayes recommended that Hughes use

Command even though Command had not yet been approved for use on cotton in Tennessee.

Freeman and Hayes represented that Command would be approved for use on cotton within “just

a matter of days” and, in any event, by the time planting season started. Hayes specifically

recommended the use of Command on Hughes’ 1991 cotton crop “because it was a very good

velvet leaf control material, and it was a lot cheaper than” an alternative product. When Hughes

agreed to use Command, Freeman and Hayes also recommended that he use Di-Syston in

conjunction with Command as a seed “safener.”


       1
       At some point during the proceedings below, Miles Corporation became Bayer
Corporation.
               On the advice of Linda Freeman, in early May Hughes changed his chemical

program by substituting the chemical Direx for Cotoran. Because of rain, Hughes had decided

to broadcast his chemicals instead of applying the chemicals in bands. According to Freeman,

Hughes could broadcast Direx just as cheaply as he could band Cotoran. The label on the Di-

Syston container cautioned the user against using “certain pre-emergent herbicides” in

conjunction with Di-Syston. Hughes knew that Direx was a pre-emergent herbicide, so he asked

Freeman about its use in conjunction with Di-Syston. Freeman represented that it would be

“okay” to use Direx with Di-Syston and, in fact, recommended the combination to Hughes.

Hughes purchased all of his chemicals from Freeman at Tennessee Seeds, and he relied upon her

expertise in deciding which chemicals to use.



               After Hughes completed his planting for the 1991 season, he noticed that all of

the cotton treated with the combination of Command, Di-Syston, and Direx either died or

suffered severe damage, while the cotton treated with Command, Di-Syston, and Cotoran

survived. Hughes later learned that the cotton died because he mixed an organophosphate (Di-

Syston) with a urea-based product (Direx) and that Freeman should not have recommended these

chemicals in combination with one another. Hughes further learned that the damage to his cotton

crop was exacerbated by his use of Command, which tended to damage the cotton plant by

whitening the leaves and stunting the plant’s growth when applied at rates recommended for

other crops.



               Hughes subsequently filed this products liability action against the Defendants

seeking to recover for the damage caused to his 1991 cotton crop. Hughes sued the following

entities: Tennessee Seeds and its manager, Linda Freeman, who sold the chemicals to Hughes;

Waterfield Grain Company, the parent company of Tennessee Seeds; FMC Corporation, the

manufacturer of Command; and Miles Corporation, the manufacturer of Di-Syston. The

manufacturer of Direx was not a party to this lawsuit. Hughes’ complaint asserted the following

counts against all named Defendants: (1) products liability (negligence); (2) products liability

(strict liability in tort); and (3) breach of express and implied warranties. Additionally, Hughes’

complaint asserted counts for breach of fiduciary duty and negligence against Freeman,
Tennessee Seeds, and Waterfield Grain Company.



               The Defendants moved for summary judgment, contending that all of Hughes’

claims against them were preempted by FIFRA. The trial court granted the Defendants’ motions,

and this appeal followed.2



                                    II. FIFRA Pre-emption



               This court previously addressed the pre-emptive effects of FIFRA in

Wadlington v. Miles, Inc., 922 S.W.2d 520 (Tenn. App. 1995):



               FIFRA is a comprehensive federal statute that regulates pesticide
               use, sales and labeling, and grants enforcement authority to the
               Environmental Protection Agency (EPA). Taylor AG Indus. v.
               Pure-Gro, 54 F.3d 555, 559 (9th Cir. 1995). FIFRA expressly
               prohibits states from posing “any requirements for labeling or
               packaging in addition to or different from those required” under it.
               7 U.S.C.A. § 136v(b) (Supp. 1995).




Wadlington, 922 S.W.2d at 522. Accordingly, section 136v(b) of FIFRA prevents states from

enacting legislation which conflicts with FIFRA’s labeling requirements.




               In addition, section 136v(b) prevents state courts from granting relief on common-

law claims if the relief granted would conflict with FIFRA’s labeling requirements. Papas v.

Upjohn Co., 985 F.2d 516, 518 (11th Cir.), cert. denied, 510 U.S. 913 (1993). As explained by

the court in Papas,




               [T]he term “requirements” in section 136v(b) “sweeps broadly and
               suggests no distinction between positive enactments and the


       2
         The trial court’s order further stated that “[f]urther, the proof presented does not
demonstrate that the plaintiff has gone forward with any proof that the defendants conducted
themselves in any tortious manner or that the combination of the chemicals employed by the
plaintiff caused the damage complained of herein.” We believe the evidence presented by
Hughes creates a genuine issue of material fact as to causation.
               common law.” [Cipollone v. Liggett Group, Inc., 505 U.S. 504,
               521, 112 S. Ct. 2608, 2620 (1992)]. Common law damages awards
               are one form of state regulation and, as such, are “requirements”
               within the meaning of section 136v. See Id.




Papas, 985 F.2d at 518. Thus, “[t]o the extent that state law actions for damages depend upon

a showing that a . . . manufacturer’s ‘labeling or packaging’ failed to meet a standard ‘in addition

to or different from’ FIFRA requirements,” section 136v(b) pre-empts such claims. Id.; accord

Wadlington, 922 S.W.2d at 524.




               In deciding what types of claims were pre-empted by FIFRA in Wadlington, this

court noted that FIFRA’s language indicated that Congress intended to create a broad definition

of labeling. Id. (citing U.S.C.A. §§ 136(p), 136(q) (Supp. 1995)). Based upon FIFRA’s broad

definition of labeling, this Court, like the federal courts before it, concluded that FIFRA pre-

empts state-law claims to the extent that such claims are based upon allegations that the

manufacturer failed to adequately warn users as to the proper use of its product. Wadlington,

922 S.W.2d at 523-24; Papas, 985 F.2d at 518; see also Taylor AG Indus. v. Pure-Gro, 54 F.3d

555, 561 (9th Cir. 1995); Lowe v. Sporicidin Internat’l, 47 F.3d 124, 129 (4th Cir. 1995);

Worm v. American Cyanamid Co., 5 F.3d 744, 748 (4th Cir. 1993). Courts uniformly have

reached this conclusion because, ultimately, failure-to-warn claims challenge the adequacy of

the warnings provided on the product’s labeling. Papas, 985 F.2d at 519; Taylor AG Indus., 54

F.3d at 561.




               In accordance with these authorities, Hughes concedes in this appeal that the

Defendants were entitled to summary judgment as to any claims which were based on allegations

of improper labeling or failure to warn. To the extent that his claims are based on affirmative

representations by Linda Freeman and Tom Hayes as to the suitability of the products used,

however, Hughes insists that his claims are not pre-empted by FIFRA.
                       III. Hughes’ Claims Against Miles Corporation




               As an initial matter, we conclude that any claims which Hughes may have against

Defendant Miles Corporation are pre-empted by FIFRA because the only evidence in the record

on this matter indicates that Hughes’ claims against Miles are based on improper labeling and

failure- to-warn theories. In his deposition, Hughes acknowledged that he had no claim that

Miles’ product, Di-Syston, was improperly designed, tested, or manufactured. Hughes also

admitted that he did not rely on any advertising or statements made by Miles beyond those

indicated on the product label. When questioned as to the nature of his claims against Miles,

Hughes testified that these claims were based on the Di-Syston label’s failure to warn potential

users against mixing an organophosphate product with a urea-based product. Inasmuch as these

claims challenge the adequacy of Di-Syston’s label, the claims are pre-empted by FIFRA, and

the trial court properly dismissed Miles from this lawsuit.




               Hughes criticizes the trial court for extending the scope of the summary judgment

proceedings beyond the single basis asserted in the Defendants’ motions, i.e., FIFRA pre-

emption, and for reaching the merits of Hughes’ claims against the Defendants. Determining the

issue of whether Hughes’ claims were pre-empted by FIFRA, however, necessarily involved an

inquiry into the factual bases of Hughes’ claims. Accordingly, when presented with Miles’

motion for summary judgment, it was incumbent upon Hughes to set forth evidence which

contradicted the evidence that Hughes’ claims against Miles were based solely on improper

labeling and failure-to-warn theories. See Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)

(when party seeking summary judgment makes properly supported motion, burden shifts to

nonmoving party to set forth specific evidence establishing existence of disputed, material facts).

At that point in the proceedings, Hughes could not simply rely on the allegations of his

complaint. Id.; see also Taylor AG Indus. v. Pure-Gro, 54 F.3d 555, 562 n.4 (9th Cir. 1995)

(declining to address pre-emption of plaintiffs’ design defect claim on appeal from summary
judgment where plaintiffs failed to offer evidence to support such claim).




               In fact, Hughes has presented no evidence that any of the products involved in this

lawsuit were improperly designed, tested, or manufactured, and on appeal, Hughes acknowledges

that his claims “are based upon the representations and recommendations of Linda Freeman and

Tom Hayes.” This leaves only Hughes’ claims for breach of express and implied warranties,

breach of fiduciary duty, and negligence for our consideration.




                  IV. Hughes’ Breach of Implied Warranty Claims Against
                               the Remaining Defendants




               Authorities addressing the pre-emptive effects of FIFRA on breach of warranty

claims generally agree that claims for breach of implied warranties, as opposed to breach of

express warranties, are pre-empted by FIFRA. Papas v. Upjohn Co., 985 F.2d 516, 519-20

(11th Cir.), cert. denied, 510 U.S. 913 (1993); Taylor AG Indus. v. Pure-Gro, 54 F.3d 555, 562-

63 (9th Cir. 1995); Hopkins v. American Cyanamid Co., 666 So. 2d 615, 623 n.4 (La. 1996).

In making this distinction, the Papas court explained that, whereas implied warranties of

merchantability arise by operation of state law, express warranties arise as a result of voluntary,

express promises made by the warrantor:




                       Express warranties are promises that are made in some, but
               not all, sales contracts. Express warrantors seek competitive
               advantage by promising buyers that certain factual representations
               about their goods are true. Liability for breach of an express
               warranty has a voluntary quality; it “derives from, and is measured
               by, the terms of that warranty.” [Cipollone v. Liggett Group, Inc.,
               505 U.S. 504, 525, 112 S. Ct. 2608, 2622 (1992)].

                        In contrast, implied warranties of merchantability arise by
               operation of law. . . . Although liability for breach of an express
               warranty may be viewed as “imposed by the warrantor,”
               Cipollone, 505 U.S. at [525], 112 S. Ct. at 2622, liability for
               breach of an implied warranty is based on “the agreement, imposed
               by law, to be responsible in the event the thing sold is not in fact
               fit for the use and purposes intended.” Arcade Steam Laundry v.
              Bass, 159 So. 2d 915 (Fla. App. 1964) (emphasis added). In
              essence, when plaintiffs argue that an implied warranty obligates
              the seller, plaintiffs acknowledge that the seller did not volunteer
              for the liability.

                       FIFRA pre-empts claims based on requirements imposed by
              states. 7 U.S.C. § 136v(b). If [the defendant] were to have
              liability for breach of an implied warranty of merchantability, that
              liability would not be self-inflicted. Instead, that liability would be
              based on a requirement imposed by state law. Therefore, to the
              extent the implied warranty claim depends upon inadequacies in
              labelling or packaging, FIFRA section 136v pre-empts the claim.




Papas, 985 F.2d at 519-20 (emphases in original); see also Taylor AG Indus., 54 F.3d at 562-63;

Hopkins, 666 So. 2d at 623 n.4; but see Wright v. Dow Chem. U.S.A., 845 F. Supp. 503, 510-11

(M.D. Tenn. 1993).




              In accordance with the foregoing authorities, we conclude that Hughes’ claims for

breach of implied warranty are pre-empted by FIFRA. We reach a different result with regard

to Hughes’ claims for breach of express warranty, however, because these claims are based on

voluntary representations made by Freeman and Hayes which were in addition to or different

from FIFRA’s labeling requirements.




                 V. Hughes’ Breach of Express Warranty Claims Against
                              the Remaining Defendants




              Authorities also agree that, to the extent they are based upon inadequacies in

labeling or packaging, breach of express warranty claims are pre-empted by FIFRA. In Taylor

AG Indus. v. Pure-Gro, 54 F.3d 555, 562 (9th Cir. 1995), the court held that the plaintiffs’

express warranty claim was pre-empted by FIFRA to the extent that the claim was “predicated

upon a duty to provide information in addition to or different from that required by FIFRA.” In

Worm v. American Cyanamid Co., 5 F.3d 744, 749 (4th Cir. 1993), the court similarly held that

the plaintiffs’ claim for breach of express warranty was pre-empted where the representation
made by the defendants, i.e. that corn could be safely planted eleven months following the

application of Scepter, was not voluntary and, in fact, was required and approved by the EPA.

See also Lowe v. Sporicidin Internat’l, 47 F.3d 124, 129 (4th Cir. 1995) (“[A]n express

warranty claim based on EPA-approved labeling materials is preempted.”).




               These opinions also suggest, however, that the result would be different if the

plaintiff were able to provide evidence that the defendants conveyed information or made

assurances which went beyond the label recommendations. In affirming summary judgment in

favor of the defendants, for example, the Taylor court noted that the plaintiffs had failed to

present probative evidence that the scope of the defendants’ assurances varied from or went

beyond the label recommendations. Taylor AG Indus., 54 F.3d at 562 n.5. In Worm, the court

similarly noted that the plaintiffs had failed to present evidence that the defendants made any

statements “other than that required and approved by the EPA.” Worm, 5 F.3d at 749.




               In Hopkins v. American Cyanamid Co., 666 So. 2d 615 (La. 1996), the Supreme

Court of Louisiana held that a breach of express warranty claim similar to the one brought in this

case was not pre-empted by FIFRA. There, the defendants allegedly represented that the

insecticide Thimex could safely be used in combination with Direx.             This combination

discolored, stunted, and killed many of the plaintiffs’ cotton plants, and they subsequently sued

various defendants for the damage to their cotton crop. In holding that the plaintiffs’ claim for

breach of express warranty was not pre-empted, the court reasoned:




               [The plaintiffs’ express warranty claim does] not relate to labeling
               or packaging, or warning. . . . An express warranty is a guarantee
               which the manufacturer or seller of a good voluntarily undertakes
               and extends to its customer. It is not a warning, nor is it a
               mandatory packaging or labeling condition which constitutes a
                state imposed “requirement.”




Hopkins, 666 So. 2d at 623.




                After viewing the evidence in this case, and drawing all reasonable inferences

therefrom, we conclude that Hughes has presented sufficient evidence to withstand the remaining

Defendants’ motions for summary judgment as to Hughes’ breach of express warranty claims.

As in Hopkins, the record in this case contains evidence that the remaining Defendants, through

their agents, voluntarily made representations as to their product’s effectiveness or suitability on

Hughes’ cotton crop, and that these representations exceeded or differed from the information

contained in the product’s label. According to Hughes’ deposition testimony, Freeman and

Hayes recommended that Hughes use Command on his cotton crop even though Command was

not yet labeled for use on cotton. Additionally, Freeman represented to Hughes that it would be

“okay” to use Direx in combination with Di-Syston. These representations were voluntarily

made and went beyond the information contained in the respective product’s labeling

information.




           VI. Hughes’ Breach of Fiduciary Duty and Negligence Claims Against
             Tennessee Seeds, Waterfield Grain Company, and Linda Freemen




                We likewise conclude that FIFRA does not pre-empt Hughes’ claims for breach

of fiduciary duty and negligence against Tennessee Seeds, Waterfield Grain Company, and Linda

Freeman. Like Hughes’ express warranty claims, these claims depend, not upon the information

provided on EPA-approved labels, but upon the voluntary representations made by Linda

Freeman when she was advising Hughes as to the appropriate chemical program to use on his

cotton crop.3


       3
        As Hughes concedes, these claims are pre-empted to the extent that they rely on a failure-
to-warn theory because Freeman had no duty to provide warnings other than those contained on
FIFRA-approved labels. Hopkins v. American Cyanamid Co., 666 So. 2d 615, 621 (La. 1996).
                                        VII. Conclusion




               Those portions of the trial court’s judgment (1) dismissing Hughes’ claims for

breach of express warranty against Tennessee Seeds, Waterfield Grain Company, Linda

Freeman, and FMC, and (2) dismissing Hughes’ claims for breach of fiduciary duty and

negligence against Tennessee Seeds, Waterfield Grain Company, and Linda Freeman are

reversed and this cause remanded for further proceedings consistent with this opinion. In all

other respects, the trial court’s judgment is affirmed. Costs of this appeal are taxed to Appellees

(with the exception of Miles Corporation), for which execution may issue if necessary.




                                                     ____________________________________
                                                     FARMER, J.

______________________________
CRAWFORD, P.J., W.S. (Concurs)


______________________________
LILLARD, J. (Concurs)
