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06/12/84 Richard Leander Ferebee, v. Chevron Chemical Company

June 12, 1984

RICHARD LEANDER FEREBEE, JR., ET AL

v.

CHEVRON CHEMICAL COMPANY, APPELLANT APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. 1984.CDC.164



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPELLATE PANEL:

Wald and Mikva, Circuit Judges, and Bazelon, Senior Circuit Judge.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MIKVA

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

This is an appeal by Chevron Chemical Company from a judgment rendered against it after a jury trial in a suit brought by the minor children and the estate of Richard Ferebee. Ferebee, an agricultural worker at the Beltsville Agricultural Research Center , an installation of the United States Department of Agriculture located in Beltsville, Maryland, allegedly contracted pulmonary fibrosis as a result of long-term skin exposure to dilute solutions of paraquat, a herbicide distributed in the United States solely by Chevron. When Ferebee died before trial, his estate continued with a survival action and a wrongful death count was added on behalf of his minor children. After a first trial ended in a mistrial, a second jury returned a verdict on the wrongful death count for $60,000 against Chevron. The verdict was based on the theory that Chevron's failur to label paraquat in a manner which adequately warned that long-term skin exposure to paraquat could cause serious lung disease made Chevron strictly liable for Ferebee's injuries.

After unsuccessfully moving for a directed verdict and a judgment notwithstanding the verdict, Chevron now asks this court to overturn the jury's verdict. Chevron's appeal offers a plethora of bases upon which it asserts that the jury's verdict was in error. Essentially, these claims divide into two groups, the first of which attacks the jury's verdict as inconsistent with the evidence and the second of which asserts that federal law precludes the tort action upon which Ferebee's children recovered. We find all of Chevron's claims to be without merit and affirm the district court's judgment upholding the jury verdict.

BACKGROUND

Paraquat is an important agricultural herbicide that has been sold in the United States since 1966. Paraquat is known to be toxic and to cause acute injury if directly absorbed into the body. For this reason, the sale and labeling of paraquat has been extensively regulated since 1966 by the federal government, first by the Department of Agriculture and currently by the Environmental Protection Agency .

At trial, the jury was presented with a complicated set of facts. In 1967 Richard Ferebee began work as an agricultural worker at BARC. His job frequently required him to spray various chemicals, including insecticides and herbicides, on greenhouse plants and, in the summer, on plants outside in the fields. Mr. Ferebee began spraying paraquat in the summer of 1977. He ordinarily sprayed six or seven times a month for between one and three hours. He used the product regularly during the outdoor growing seasons of 1977, 1978, and 1979.

When Mr. Ferebee sprayed paraquat in the fields, he frequently got the dilute spray on his skin, typically when he used his hands to shield plants while he sprayed weeds growing around them. In addition, in a videotape deposition taken before his death, Mr. Ferebee described two incidents of more extensive exposure to paraquat. The first occurred soon after he began spraying the compound. On that day, Ferebee spent several hours walking behind a tractor that was spraying paraquat. His head and bare arms became drenched with spray. At the end of the day, he began to feel dizzy and exhausted. When he went home, he was too tired to wash or change his clothes and fell asleep instantly. The dizziness and other symptoms did not persist, however, and he later returned to work.

Mr. Ferebee's second major exposure to paraquat also occurred during the 1977 growing season. On that occasion, he was spraying paraquat with a hand-held sprayer for some time when he noticed that the sprayer was defective and had leaked paraquat solution all over his pants. He stopped spraying and cleaned up as much as possible, but was not able to change his clothes until he went home.

Even before 1977, Mr. Ferebee was not a picture of perfect health. He was overweight, suffered from high blood pressure, and had a life-long sinus problem. Nonetheless, in late 1977, according to Mr. Ferebee's testimony, he began to notice a marked change in his physical condition, most notably increasing shortness of breath. Over the next several years, Mr. Ferebee's condition progressively deteriorated. In November of 1979 he checked into Capital Hill Hospital, where Dr. Muhammad Yusuf, a pulmonary specialist, diagnosed Ferebee's disease as pulmonary fibrosis. Dr. Yusuf referred Mr. Ferebee to the National Institutes of Health, where he was treated during 1981 and 1982 by Dr. Ronald G. Crystal, Chief of the Pulmonary Branch of the Heart, Lung, and Blood Institute. After several consultations and tests, both Drs. Yusuf and Crystal concluded that Ferebee's pulmonary fibrosis was caused by paraquat poisoning. Mr. Ferebee's lung condition continued to degenerate, and on March 18, 1982 he died.

In the legal action prosecuted by Ferebee's estate and minor children, appellees presented both of Mr. Ferebee's treating physicians as expert witnesses. Both Dr. Yusuf and Dr. Crystal testified that, in their opinion, paraquat had caused Mr. Ferebee's pulmonary fibrosis. To support this view, they relied not only upon their own observation of Mr. Ferebee and the medical tests performed on him, but also upon medical studies which, they assserted, suggested that dermal absorption of paraquat can lead to chronic lung abnormalities of the sort characterized as pulmonary fibrosis. Appellees then argued to the jury that Chevron had not adequately labelled paraquat to warn against the possibility that chronic skin exposure could lead to lung disease and death and that his failure was a proximate cause of Mr. Ferebee's illness and death. Chevron appeals the jury's verdict which was necessarily based on acceptance of this theory.

ANALYSIS

We begin by determining the source and content of the cause of action upon which this suit is founded. Ferebee's exposure to paraquat occurred entirely at the Beltsville Agricultural Research Center . BARC is located on federal land, over which the federal government exercises "exclusive Legislation," U.S. Const. art. I, § 8, cl. 17. Accordingly, any right of appellees to recover for their alleged injuries must initially find its source in either federal common law or federal statutory law. Since 1928, a federal statute has provided just such a right in an act which creates a cause of action for wrongful death occurring on federal property:

In the case of the death of any person by the neglect or wrongful act of another within a nationl park or other place subject to the exclusive jurisdiction of the United States, within the exterior boundaries of any state, such right of action shall exist as though the place were under the jurisdiction of the State within whose exterior boundaries such place may be; and in any action brought to recover on account of injuries sustained in any place the rights of the parties shall be governed by the laws of the State within the exterior boundaries of which it may be.

16 U.S.C. § 457 (1982)

The substantive elements of the cause of action created by the federal wrongful death act are thus defined by reference to state law. There is no dispute in this case that the relevant state law by which the federal cause must be defined is that of Maryland. There is a dispute, however, as to the content of that law. At the time of Ferebee's injury, Maryland law recognized a cause of action in strict products liability for failure to warn adequately of a product's inherently dangerous condition; it was according to this law that the jury was instructed. At the time BARC became federal property in 1938, in contrast, Maryland tort law recognized a cause of action only for negligence. Chevron argues that the federal statute incorporates only that state law which was in effect at the time the federal government acquired the relevant property and that, given the state of Maryland law in 1938, it was error to allow plaintiffs, who had waived all claims sounding in negligence, to take their case to the jury on a theory of strict products liability.

We reject Chevron's view, which amounts to the position that Section 47 requires the wrongful death law on federal enclaves to be frozen at the date of cession. "The natural reading of the statutory language is that the wrongful-death law of a federal enclave should be identical to that of the surrounding state, whatever the law might be and however it might change over time." Vasina v. Grumman Corp., 644 F.2d 112, 117 (2d Cir. 1981).In addition to the plain language of the statute, its history and logic belie the argument that Congress intended a static, rather than a dynamic, incorporation of state law. The federal act was passed in an effort to put tort victims on federal land on an equal footing with those injured just outside the boundaries of the federal enclave, see 69 CONG. REC. 1486 (1928) (statement of Senator Walsh); it is implausible to ascribe to a Congress so intended a contrary aim to saddle tort victims on federal land with the consequences of outdated legislation. We have no trouble agreeing with the numerous lower courts which have considered this question: Congress intended to allow the federal action to evolve concomitantly with changes in state law. See, e.g., Mathis v. General Electric Corp., 580 F.2d 192, 194 (5th Cir. 1978) ...


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