FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 June 4, 2004 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

____________

No. 02-15943

_____________

D.C. Docket No. 01-07360 CV-WPD

WAYNE CHARLES OKEN,

Plaintiff-Appellant, 

versus

THE MONSANTO COMPANY, THE SOLARIS GROUP, 

SCOTTS COMPANY, successor in interest to Monsanto Company

and the Solaris Group, DOW AGROSCIENCES, LLC,

DOW AGROSCIENCES, as successor in interest to DowElanco,

DOWELANCO, as successor in interest to Dow Chemical Company, et al.,

Defendants-Appellees.

______________

Appeal from the United States District Court

for the Southern District of Florida

_____________

(June 4, 2004)
 Honorable Anne C. Conway, United States District Judge for the Middle District of *

Florida, sitting by designation.

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Before TJOFLAT and CARNES, Circuit Judges, and CONWAY , District Judge. *

PER CURIAM:

I.

The Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136-

136y (“FIFRA”) establishes a comprehensive regulatory scheme for pesticides. 

Manufacturers of pesticides must obtain Environmental Protection Agency

(“EPA”) approval of their products and the warning labels accompanying them,

which instruct consumers on how to use the product safely. 7 U.S.C. §§ 136a(a),

136a(c)(1)(C). FIFRA contains an express preemption provision: States “shall not

impose or continue in effect any requirements for labeling or packaging in

addition to or different from those required” by FIFRA. 7 U.S.C. § 136v(b). 

In Papas v. Upjohn Co., 985 F.2d 516, 517, 520 (11th Cir. 1993) (Papas II),

a damages action for personal injuries sustained “due to exposure to pesticides

manufactured by [codefendant] Zoecon,” we held that “FIFRA expressly preempts state common law actions against manufacturers of EPA-registered

pesticides to the extent that such actions are predicated on claims of inadequate

labeling or packaging.” Such preemption extended to plaintiff’s claims based on
 The complaint alleges that Oken “using an appropriate spreader, applied the [Dursban] 1

. . . to his lawn and garden for its intended use, and was exposed to the Dursban product.”

Complaint, ¶ 23 (emphasis added). Paragraph 23 is the only paragraph of the complaint that

describes Oken’s contact with Dursban. 

 Oken asserted this in his Statement of Facts filed in response to the defendants’

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motions for summary judgment.

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“negligence, strict liability, and breach of implied warranty,” because “[e]ach of

these claims was, in whole or in part, a claim of inadequate labeling for alleged

dangers arising from exposure to the pesticides.” Id. at 517. We therefore

affirmed the district court’s summary judgment dismissing the plaintiff’s claims. 

II.

The case before us mirrors Papas II. Wayne Charles Oken purchased two

bags of Ortho Dursban Lawn & Garden Insect Control (“Dursban”) from Home

Depot U.S.A., Inc. (“Home Depot”). The Monsanto Company (“Monsanto”)

manufactured the Dursban, and Dow Chemical Company (“Dow”) manufactured

the product’s active ingredient. A warning label approved by EPA, and annexed

to this opinion as an Appendix, was attached to the bags Oken purchased.

Oken read the warning label and, using a two-wheeled spreader, spread both

bags, one at a time, on his lawn to control ants. As he spread the Dursban, he was

exposed to a “mist of powder [that] arose.” He soon suffered a reaction, which 1 2

required extensive hospitalization and treatment. 
 Oken also named numerous parties related to Dow and Monsanto, and “A.B.C. 3

Company,” a fictitious entity that was never served and never appeared in this case.

 The applicable statute of limitations is provided by Fla. Stat. § 95.11, which states that 4

“[a]n action founded on negligence,” and “[a]ny action not specifically provided for in these

statutes” shall be commenced within four years of the time the action accrues. 

 The court granted the defendants summary judgment on Oken’s manufacturing defect

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claim for lack of evidence. Oken does not challenge the ruling in this appeal. 

4

The day before the statute of limitations would have barred this action,

Oken brought this action for money damages against Dow, Monsanto and Home

Depot in a Florida circuit court. His complaint sounded in negligence and strict 3 4

liability. It alleged that Dow and Monsanto were negligent in designing and

manufacturing the Dursban and in composing the warning label attached to the

bags, Home Depot was negligent in selling an unreasonably dangerous product,

and all three defendants were strictly liable for dispensing an unreasonably

dangerous product. 

The defendants removed the case to federal district court, and in their

answers to the complaint, alleged that FIFRA preempted each of Oken’s claims. 

Following some discovery, they moved the district court for summary judgment. 

The court granted their motion, concluding that the case was indistinguishable

from, and controlled by, Papas II. Oken now appeals. 5

III.
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The adequacy of the Dursban warning label is at the heart of this case. 

Although Oken’s complaint sounds in negligence and strict liability, we cannot

ignore the critical causation element of each of these torts. For his negligence

claims, Oken must show that the defendants’ alleged negligence caused his

injuries. For his strict liability claims, he must show that the alleged defects in

Dursban caused his injuries. Oken cannot escape, however, that his injuries were

caused, at least in part, by the alleged inadequacy of the label. If the label had

adequately warned him of the dangers of Dursban, he contends, he would not have

used the product and would not have been injured. As Papas II instructs, because

all of Oken’s claims are based at least in part on inadequate labeling, they are all

preempted by FIFRA. 985 F.2d at 517.

Oken asks that we overrule Papas II. He argues that the Supreme Court’s

decision in Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L. Ed. 2d

700 (1996), requires that we reevaluate Papas II and find that state-law causes of

action based on inadequate warnings are not preempted by FIFRA. However,

subsequent to the Supreme Court’s decision in Medtronic, we reaffirmed Papas II

in Lowe’s Home Centers, Inc. v. Olin Corp., 313 F.3d 1307, 1308 (11th Cir.

2002). Because a panel of this court is not free to reconsider an issue decided by a

prior panel, United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en
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banc), we are bound by our decision in Lowe’s, and must adhere to Papas II. 

AFFIRMED.
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APPENDIX

ORTHO(R)

Dursban(R) Lawn & Garden Insect Control

FLEA AND TICK CONTROL (Outdoors) SOIL INSECTS - European Crane

Fly/Leather Jacket (larvae) and White Grubs.

HOME INVADING PESTS (Outside) - Ants, Brown Dog Ticks, Cockroaches,

Clover Mites, Crickets, Earwigs, Fleas, Millipedes, Sowbugs (Pillbugs),

Silverfish, Spiders (including Black Widow Spiders). 

HOME LAWNS - Ants, Chinch Bugs, Cutworms, Fall Armyworms, Earwigs,

Crickets, Brown Dog Ticks, Fleas, Leafhoppers, Lawn Moths (Sod

Webworms), Chiggers, Clover Mites, Grasshoppers, Spittlebugs, Sowbugs

(Pillbugs).

DIRECTIONS FOR USE

It is a violation of Federal law to use this product in a manner inconsistent

with its labeling.

READ ENTIRE LABEL. USE STRICTLY IN ACCORDANCE WITH

LABEL PRECAUTIONARY STATEMENTS AND DIRECTIONS.

FLEA AND TICK CONTROL (OUTDOORS)

Treat once a month beginning when pests first appear in late spring (May - June)

and continue until late summer (September - October). Eliminating weeds around

the home and mowing lawns frequently reduces hiding places. Dogs, cats, their

kennel or bedding area should also be treated with a registered product such as

ORTHO Pet Flea & Tick Spray. In addition, if fleas or ticks are indoors on

carpets or pet resting areas, use a product such as FLEA-B-GON(R) Flea & Tick

Killer or ORTHO Home Pest Insect Control. Treat all three sites - outdoors,

indoors, and the pet with appropriate labeled products to achieve control. If any

one of these areas is missed, it can serve as a source of reinfestation.

HOW TO USE: Apply uniformly to home laws using a Drop, Broadcast, or

ORTHO WHIRLYBIRD(R) Spreader. Treat when insects or signs of damage first

appear. Retreat as necessary if reinfestation occurs.

Keep children and pets off treated areas until this material is washed into turf and
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grass is dry.

TO CONTROL: Ants, Chinch Bugs, Cutworms, Fall Armyworms, Earwigs,

Crickets, Brown Dog Ticks, Fleas, Leafhoppers, Lawn Moths (Sod Webworms),

Chiggers, Clover Mites, Grasshoppers, Spittlebugs, Sowbugs (Pillbugs): Apply 21⁄2

lbs per 1,000 sq ft (40' x 25'). Immediately after application, give the lawn a light

watering. See table below for suggested spreader settings.

Sod Webworms (Lawn Moths): Sod Webworm caterpillars feed on grass blades at

night. Adult Webworms (Lawn Moths) emerge at dusk. They fly over the lawn

laying eggs that later hatch into destructive caterpillars. Damage appears first as

small brown spots which rapidly develop into large brown areas. If Lawn Moths

are noticed in large numbers, or at first sign of damage, treat entire lawn.

TO CONTROL: Mole Crickets, Hyperodes (Turfgrass Weevils) European Crane

Fly/Leather Jacket (larvae) and White Grubs (larvae of European Chafer, Southern

Chafer and Japanese Beetle): Use 5 lbs/1,000 sq ft (see table below). Thoroughly

water immediately after application to wash the insecticide into the soil.

For Mole Crickets apply in May or June when pests are small. Hyperodes

(Turfgrass) Weevils: Treat suspected problem areas in mid-April and again in midMay. White Grubs: Treat when grubs are young and actively feeding near the soil

surface, usually during late July and August. Consult your Agricultural Extension

Service Specialist for timing of application.

HOME INVADING PESTS: PERIMETER TREATMENT AROUND

FOUNDATION (OUTSIDE) Ants, Crickets, Fleas, Sowbugs (Pillbugs),

Millipedes, Earwigs, Clover Mites, Silverfish, Spiders (Incl. Black Widow

Spiders), Cockroaches, Brown Dog Ticks: Apply in a band 2 to 6 ft wide around

the building using an ORTHO WHIRLYBIRD(R) Spreader. Treat garbage can

storage areas and outdoor pet resting areas. Do not treat pests with this product.

[Table omitted]

* One level ORTHO WHIRLYBIRD(R) Hand Spreader holds 2 lbs of product. 

NOTE: One level measuring cup (8 fl oz) hold 5 1⁄2 oz of granules. Three cups

equal approximately 1 lb of product.
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[Table omitted]

STORAGE AND DISPOSAL:

STORAGE: Keep pesticide in original container. Do not put into food or

drink containers. Avoid contamination of feed and foodstuffs. Store in a

cool, dry place, preferably in a locked storage area.

DISPOSAL: PRODUCT - Partially filled bag may be disposed of by securely

wrapping original container in several layers of newspaper and discard in

trash.

CONTAINER - DO NOT REUSE EMPTY BAG. Discard bag in trash.

PRECAUTIONARY STATEMENTS

HAZARDOUS TO HUMANS & DOMESTIC ANIMALS

CAUTION: Harmful if absorbed through skin. Avoid contact with skin, eyes,

or clothing. Wash thoroughly with soap and water after handling.

FIRST AID: In case of skin contact, wash skin with plenty of soap and water.

In case of eye contact, wash eyes immediately with plenty of water. See a

doctor if irritation persists. Note to Physicians: Emergency information call 1-

800-454-2333.

ENVIRONMENTAL HAZARDS: This pesticide is extremely toxic to fish, birds,

and other wildlife. Do not apply directly to water. Drift and runoff from treated

areas may be hazardous to aquatic organisms in adjacent aquatic sites. Cover or

incorporate spills. Do not contaminate water when disposing of equipment

washwaters.

NOTICE: Buyer assumes all responsibility for safety and use not in

accordance with directions.

Medical Information call 1-800-454-2333

Product Information call 1-800-225-2883

Solaris(TM)

ORTHO(R), WHIRLEYBIRD(R), FLEA-B-GON(R), SOLARIS(TM) Trademarks

of Monsanto Company
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Dursban(R) Trademark of DowElanco

(C) Monsanto Company 1995

Manufactured for

The SOLARIS Group of

Monsanto Company

P.O. Box 5008

San Ramon CA 94583-0603

Form 8-735-01 / Product 5502

EPA Reg. No. 239-2570

EPA Est 58995-MO-1 , 34704-NB-1 , 769-GA-1

A F S

Superscript is first letter of lot number

Made in USA