indian brand farms inc at all versus novartis corp mr out away thank you your honor and may it please the court i'm scott out away representing the plaintiff blueberry farmers and i'd like to reserve three minutes of my time for a bottle that request will be granted my clients have two primary claims against novartis for damaging their blueberry crops first are the product liability claims which sound in strict liability and negative testing alleged in counts  two and second is the statutory new jersey consumer fraud a claim alleged encounters that the district court dismissed the product liability claims based on iranians finding that no vargas had no duty under state law to ensure that its newly reformulated pesticide product die as an on eighty six hundred was safer crops when forseeable the tank mixed with commonly mixed fungicides as novartis acknowledges it page twenty three of its brief however a manufacturer's duty to ensure the safety and efficacy of its products extends to all reasonably forseeable uses in light of the general experience within the industry here the experience within the industry is that tank mixing of pesticides and  fungicides is a longstanding practice and the specific techniques that issue here dioxin on with captain or cat tech has long been used without incident by blueberry farmers as recommended by rutgers agricultural extension program compatibility and crop damage because no barges fail to heed that red flag and either provide a safer product or to warn against think mixing as novartis subsequently warned in the subsequent in a supplemental labeling this court should remain on the product liability claims for trial the statutory consumer fraud act claim is based on a novartis marketing brochure claiming that eighty six hundred provided better crops safety equal performance to previous formulations and those formulations did not cause crop damage when mixed with captain or catholic no bardas likewise asserted that eighty six hundred provided improve safety to plants quote unquote and that user reliance or a causal connection between those brochure comments and the engine or a that's claimed first of all their reliance is not required on the new jersey consumer fraud act there is a causal nexus requirement but direct reliance on the brochure is not required in the district court erred and that holding the causal connection is this no bardas made its claims to the records scientists and the pesticide retailers who turn recommended eighty six hundred to the farmers as no bardas knew and expected they would the the farmers affidavits are founded page eighty nine zero two nine fifty of the appendix and they set out the various information that they relied on there was a of twilight meeting that happened on may twenty first which was the primary means what is the only evidence that the people at the twilight meeting presiding at the twilight meeting the writers was the main wrecker scientist who specialized in blueberries and he specifically testified that he relied on information from the manufacturer that he didn't go do his own independent research he relied on the information from the artist the other records professor dr a seven three six to seven three eight that no bardas regularly use the road shores to encourage retailers and extension program folks to recommend their products but if it has to indian brand farms who purchased a product after they rely after the the records meeting how could you show reliance for that party and i'm assuming your honor that you're referring to the chart at page fifty three i think of novartis brief and that actually indian brands i think bought the product before the meeting and they relied on the the recommendation from their pesticide retailers from frank sinatra and bill parkhurst and that's set out in those affidavits a nine zero two nine fifty i have a preliminary question on reliance i had trouble finding where you raised that on appeal as i understand it it was the alternative holding on your consumer fraud claims that were alleging oral fraud in the brochure based fraud the district court first held fee for preemption but then alternatively held no reliance where did you raise that on appeal the reward raising with we raise it in the statement of issues in our brief and of artists relied on the reliance holding a we pointed out in a reply brief a twenty five the new jersey consumer fraud act does not require reliance the statement of fact when we did that on the express of express warranty but did you do that with respect to the consumer fraud claims can you point connection in the statement of facts particularly at page i believe was page five in page nine showing the the reliance the chain of causation from the statements by novartis to the reliance by the wreckers professors and the pesticide retailers and that argument was in support of your breach of express forty and you made an argument your initial brief that there was reliance with respect to the breach of express warranty but not your saying the first time you did that with respect to your consumer fraud claims was in the reply brief no i believe we set out the facts for reliance in the factual statement of our brief and we challenge the district court's order we set out the causal connection and challenge the district court's order and in particular on preemption where the court the court even fail to address the second part of bates under the fraud claims where it i think misread this panel's previous decision to preclude it from looking at whether the the state fraud claims were in addition to or different from different requirements here the fraud claims are based on a duty to tell the truth and not speak falsely and in the same way fear for a is based on the same duty it prohibits labeling statements that are false or misleading in any particular including a false or misleading statement concerning the efficacy of the pesticide in your failure to warrant claim on labeling how can you answer the question that it was not in addition to fifty prohibits different provides that a label is misbranded product is misbranded if its label does not contain adequate instructions for use or if its label omits necessary warnings or cautionary statements that's section one thirty six q one g of the fifth or statute here the failure to one claim which arises under the new jersey product liability act similarly prohibits omitting unnecessary warning on a product and how can that be in addition to its parallel as the as the supreme court in ba held state law requirements that are parallel to fit for requirements are not preempted so just is a failure to warn claim or our failure to warn claim alleges a violation of new jersey state law in the same way it would violate difference prohibition on this branding the only difference is state law provides a remedy federal law doesn't but the supreme court was clear in bates that that doesn't matter state law providing an additional remedy for something that federal law already ban is not a requirement in addition to or different from a fifth requirement because it doesn't go to the labeling it goes to the remedy does the e p a require i mean the the rules prohibit an adequate warning but does do the rules and does the e p a recall require a warning in this kind of situation on the label the controlling regulation is one fifty eight forty c f r section one fifty eight dot four hundred and there the e p a explains that it's waived all requirements to submit efficacy data to the agency but manufacturers must still ensure through testing that quote his products are efficacious when used in accordance with label directions and commonly accepted pest control practices now two pesticides had long been mixed so that using that using them alone was that they had the e p a had waived its efficacy jurisdiction and was not regulating in this in a relevant area and that's precisely why there's no preemption of state law claims and that's also why the district court erred in looking to federal law this court has per previously held that the failure to warn claim is a requirement for labeling and left the issue open as to whether the required labeling under state law would be in addition to or different from those required by the  subchapter that's correct ok well if there is if there is a waiver or regulation and there is no requirement is of this additional requirement now the parallel the requirement under federal law is actually in the statute it is i read it a moment ago if your argument is that the statute trumps what the e p a has done with that right if i understand your question correctly and i see my time is up and you if you don't you go ahead and answer the question the statute says that if if a label omits necessary warnings there's a violation of  a manufacturer still has a duty to make to make a safe product it's just that congress decided that the e p a didn't have to look at whether that the product was efficacious in terms of the crops as opposed to say for human exposure so the e p a still looks at the human aspect but it doesn't look at property damage claims and that lack of review doesn't obviate the fact that the statute still prohibits a product from having a false or or  a label that omits necessary warnings or cautionary statement mixing is not a problem of human safety or environment in the context of this case it's not it conceivably could be but that's it has nothing to do with the and they can be disposed of as a matter of new jersey law without reaching the use to a preemption and as this court has held as a as a general judicial canon with when a matter can be disposed on the alternative state law grounds before reaching the constitutional issues it should be in the court can do so here first the plaintiffs only remaining product liability claim is that no of artists would have should be liable because it fail off label non recommended combinations of its products with the best size second point is only remaining claim under their misrepresentation in new jersey consumer fraud act theories is that nobody should be liable for statements made on the brochure novartis brochure promoting dyads n n h u six hundred the district court as an alternative ruling correctly concluded as a matter of new jersey law that the plaintiffs misrepresentation and fraud claims lack the critical meeting the testimony which is quoted by the court and is summarized you know our brief at note eleven on pa uniformly that the only written material they received was the level the record is undisputed on that fact even if they had the very well while they may be on the mailing list their testimony was they didn't read rely on it prior to purchasing or using that they as an eighty six hundred which if you look at the dates of it makes sense because it could have been mailed before may twenty ninth the majority of them had purchased and some of them even applied the product prior turning to the public liability claim as a starting point in alice's import it's important to note that they as an age of six hundred when used as a standalone product as recommended on the label and the e p a approved label does not cause injury to blueberry crops that is undisputed it was found by the district court for the last appeal that the product was not defectively design or inherently dangerous and it was not negligence on the part of the virus to put it in the stream of commerce that mixes happen in the industry to the extent that and that's the limit of objective foreseeability the extent that objective foreseeability existed no virus warned against it because on the eighty six hundred label first it didn't recommend any combinations and second it included the warning that quote crop injury ineffectiveness or other unintended consequences may result because of such factors such as weather conditions presence of other materials or the manner of use or application extent there was any objective foreseeability of the general question of tank mixing it was warned against what plants are focusing on is there very specific techniques and that's when we cross the line to subjective foreseeability what they are saying is don't worry about all the other possible combinations you should have tested for my combination even though there wasn't recommended my combination of combining it with the fungicide another manufacturer's fungicide for use on blueberries in new jersey backwards with all due respect subjective foreseeability i thought was what we know is occurring what you know is occurring in the tank mixing is occurring i thought the new jersey cases said that objective foreseeability requires us to analyze public policy and whether it makes sense as a matter of fairness in public policy to put the onus on your client to warn against this in arcadia said yeah just because people know fertilizer can be used to make bombs doesn't mean that it's objectively reasonable that that be done am i missing something i think we're saying the same thing in two different ways i mean i think the way that that how you were saying the opposite  k let me try again then because a that's my mistake as i believe i was saying what would you express that the policy question here is addressed by by e p a as it applies its waiver which says that we are not requiring individual has to cite companies to test its its product with combination with all the others nonetheless it's reasonable to allow the growers to combine them it's not against the law to combine them even if they're not recommended but to the extent that objective force ability that you described that we know it's going to be combined that is addressed by no virus in warning in the way that it did in the general fashion on its label and then as a matter of policy the e p a has determined it does not make sense to put the onus on the manufacturer to test in every combination and that's what the differ court found and that was the basis for the ruling on the products liability side ok so so that's i thought that's what you were going to say before your best argument is it's not fair reasonable to require your client to consider the three million potential combinations of all of these various fungus sides and all the insecticides i mean and that's just and that's what the district court found it's not only f reasonable just not possible i mean there would never be any new iteration of a product and this product it was an improvement over past products when used as recommended as a standalone product it was water based and not oil based it had a lower environmental impact because of that you that that's spread out in a mist and it usually it's of it's a twenty to one ratio it's of you know twenty gallons of water for every container of product so the prior product was an oil based this is a water based so it does mix well as it's required to do on the lot under the label even as a standalone product itself i believe that's correct as to a non recommended non labeled i think the standard is whether it is objectionably not subjectively forseeable and i think that's the exact standard  the court did and i think is just as hard and point out that's where you get to the policy question of you know is it fair to put this burden on the manufacturer would you address for me the question i posed to your able opposing counsel about reliance did they preserve that i do know so pointed me to page five of the initial brief the first you said it was in the reply brief that he said it was in the initial i do not believe that as we pointed out in our brief that the plaintiffs addressed the alternative of finding for the fraud a misrepresentation claims i think they exclusively examined you then you raised your lack of reliance in your brain and then because it was is absolutely correct that under the new jersey consumer fraud act it's not a question of reliance is a question of causal nexus ok what the new jersey courts have done is they've replaced traditional reliance with with two things replay contain their verdict provide their kind of argument in their reply brief i do not believe so no your honor in any event regardless of what their argument was in response it didn't address the issue which is the district court found that there was a lack of causal nexus between any statements made on the brochure and the and the decisions by the blueberry farmers to buy and use the product what's the difference between reliance and causation under new jersey law how can you have causation if there is no reliance i've asked myself the same question but i've learned to use the phrases that the new jersey supreme court uses which and many times to me there are the two sides of the same coin the way the court and the district court analyzed it while it did use the term reliance because frankly i think because it was lumping together the traditional common law fraud claim come along as representation with the new jersey consumer fraud and treating them one in the same work for the common law misrepresentation you do have the element of reliance so it used that term court sort of as a catch phrase to address both reliance on the war in direct reliance satisfactory and you put this brochure out there or it was obviously a marketing tool to influence professionals retailers first as to any thing that the rutgers university professors did with their brochure the only evidence in the record is they republics some elements of that in the may twenty ninth blueberry bullet in which the record shows that these pla that those statements were conveyed by the rutgers university professors appetite meaning they made a recommendation to use diana navy six hundred but there's no but that that could have come from the label or any source as there's no evidence that they conveyed or somehow really read the brochure at the fire like me there's no evidence that any of the plaintiffs received the brochure at the twilight meeting and not even clear anyone from novartis was there it seemed like fairly nebulous testimony as to what occurred out that meeting i think the testimony is for six of the eight no one could say that novartis was there for the other two it was nevertheless as you said they may have been there they may have not counted on a fight and name a person none of the navarros people testify that they were there and that's the that's the status of the in even if they are assuming argue went to someone from the borders was there is there any clear evidence as to what they would have said there there is not i mean the district court and the plaintiff have not challenged the district or concluded that there is no oral basis for the consumer fraud or misrepresentation claims at all doesn't new jersey recognize an indirect reliance claim it does but there still has to be a causal nexus in the critical missing piece of the causal nexus is that there's no evidence that statements from the brochure were conveyed to the plaintiffs via the folks at rutgers except the testimony that the folks at rutgers made their recommendations to by a g six hundred on the brochure but they the recommendation just to buy it and use it right is not related to what they find fault with f new jersey recognizes indirect reliance and the other elements are present it seems to me that if their recommendation if the professor's recommendation was based on what's in the brochure that could constitute indirectly line right but there's no evidence that their recommendation at that while i mean was based on the brochure that's my point ok where is but the brochure said that these this product is as effective as our prior products but it's safe which is one hundred percent true because the brochure and the label and everything of ours ever did recommend it for use along and not in combination what  woman you're saying your client didn't know and anticipate that farmers would choose to make one application a season rather than three you don't really think your client thought that i mean the testimony here is well look it's a lot cheaper you know that they're going to mix because it's a l only have to go over that feel once and make an application want as opposed to three times right and when it's anticipated and recommended manufacturers do that on the label many times they do recommend combinations then the onus is on them to test the combinations and to make sure that they're safe but while you know generally that combinations may happen there's no evidence that nobody has knew that this specific combination was going to happen and no evidence that it had the duty to test not only this combination but all every other possible combination because the growers knew that that's what's reflected in p r know as eighty two dash one where e p a decided that it was not going to put that burden on manufacturers and i i see my time is up  one other question eat you i guess not entirely surprising to me begin by focusing our attention on the new jersey law i presume that that's because you recognize that the trial court addressed only the first step of the test and never really addressed the second step is that fair to say i'd respectfully disagree ron i think the court did address the second  show us where pages fifteen to sixteen of the twelve twenty seven order which is that a fifteen a seventeen it looked at the second prong which is that in addition to or different from and what it found is that the plaintiff claims would begin addition to or different from because whereas e p a does not require manufacturers to test for and warn about on the label combinations for which they're not making a recommendation plain it and secondarily does not require a statement of all plaintiffs claims would require them to do that you if i can just touch on the fifth or preemption but the first element of the first prong of it whether or not it was labeling the different court took a matter of first impression both with this court and from the u s supreme court and applied w believe was a reasonable interpretation of the term labeling ok mr miller thank you very much thank you your hon with respect to object to forsee ability novartis argues that it's not fair to require them to consider what they call three million conceivable combinations of pesticides and fungicides and insecticides what that argument report on this issue it's the fact that there was an iyonix or fact and they tested twenty seven combinations or they tested dyads in an easy six hundred with twenty seven other products in one third of those there was mixing in compatibility and they found it very quickly and the reason there was such a high rate of mixing and compatibility is because of the nature of the surfactants so you mediately take the three million number down to a very limited set and if if they had done their due diligence and their chemists had figured out that the iyonix or fact has a high probability of mixing and compatibility then they could have taken steps to ensure safety before they release the product but why is that onus on them initially when it's not a product mixing was a common agricultural practice ten years later they put out a regulation saying a manufacturer has to insure safety and efficacy for commonly used commonly accepted pesticide practices it's common that it's common that people of ill will use fertilizer to blow things up and then arcadian this new jersey court said that while that's subjectively foreseeable most people who read the newspaper are aware understand that that subjectively foreseeable new jersey courts and that's not objectively foreseeable i think the court came out correctly in that case using fertilizer to make bombs and acts done by terrorists is far different from hardworking farmers that have been spraying their blueberry crops to make sure that they're effect the market and they can sell them they've been doing this for sixty years since the advent of pesticides it's no secret all of the know of artists representatives testified that they were aware of ten mixing the records professors were aware of it and one of the blueberry bulletins that's it i think it's a four seventy three they recommend mixing of eighty six hundred with cat ten and kept tech in april of one thousand nine hundred seven so the next iteration of this product that they come out with they're going to have to do the three don't mix this with other products in fact they could have done that as a practical matter i don't know what was in of artists head but it stands to reason that a manufacturer knowing that this is a common practice has an economic incentive not to put such a warning otherwise they're going to lose sale simple as that so they they recommended this for sixty two different products part of the reason you get to the high number of possibilities is because they recommended it for such a wide use it's not consistent with new jersey or principles of fairness and equity say that you can put out a product recommended for dozens and dozens of uses and not ensure that the common way that these hardworking farmers put it on which is mixed if say for all sixty two uses that's undisputed not when it's when it's used alone when it's used as intended it say for all sixty two uses why shouldn't they have a right to mention those uses because those uses are forseeable if they subsequently they put a warning on the label saying don't tank mix this product and they they could have done that sooner ok mr hattaway we thank you the case is very well argued and will take the matter under