UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CECILE M. LESCS,

Plaintiff-Appellant,

v.

WILLIAM R. HUGHES, INCORPORATED;

WILLIAM R. HUGHES; THE DOW

CHEMICAL COMPANY; DOWELANCO;

TENNECO OIL COMPANY; EXXON

CORPORATION,

Defendants-Appellees,

and

No. 97-2278

TENNECO, INC.,

Defendant.

AMERICAN CROP PROTECTION

ASSOCIATION; RESPONSIBLE

INDUSTRY FOR A SOUND

ENVIRONMENT; CHEMICAL

MANUFACTURERS ASSOCIATION;

NATIONAL PEST CONTROL

ASSOCIATION,

Amici Curiae.

Appeal from the United States District Court

for the Western District of Virginia, at Harrisonburg.

James C. Turk, District Judge.

(CA-94-30091)

Argued: October 29, 1998

Decided: January 14, 1999
Before WILKINSON, Chief Judge, WILLIAMS, Circuit Judge, and

THORNBURG, United States District Judge

for the Western District of North Carolina,

sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Brian Wolfman, PUBLIC CITIZENS LITIGATION

GROUP, Washington, D.C., for Appellant. Dean Taylor Barnhard,

BARNES & THORNBURG, Indianapolis, Indiana, for Appellees.

ON BRIEF: Douglas L. Stevick, PUBLIC CITIZENS LITIGATION

GROUP, Washington, D.C., for Appellant. H. Edmunds Coleman, III,

BRYAN & COLEMAN, P.L.C., Winchester, Virginia; Thomas H.

Rockwood, Winchester, Virginia, for Appellees. Lawrence S. Ebner,

MCKENNA & CUNEO, L.L.P., Washington, D.C., for Amici Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Cecile M. Lescs filed suit in federal district court seeking compensation for her alleged injuries that resulted from exposure to a pesticide that was applied to her residence. She sought compensation

under Virginia state law theories and asserted the federal court's

diversity jurisdiction. The district court dismissed several defendants

from the case early in the litigation. Upon a motion for summary

judgment by the remaining defendants, Dow Chemical Company

(Dow), William R. Hughes, and William R. Hughes, Inc. (collectively

 2
Hughes), the district court dismissed Dow as a defendant and granted

summary judgment to Hughes on a majority of the claims. The grant

of summary judgment was based primarily on the district court's

interpretation of 7 U.S.C.A. § 136v(b) (West Supp. 1998), the preemption provision of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which expressly preempts state law that would

place different or additional requirements on federally approved pesticide labeling or packaging. The district court allowed a single claim

against Hughes for negligent application of the pesticide to proceed

to trial. After trial, a jury determined that Hughes had not acted negligently, and accordingly, the district court entered judgment. Lescs

appeals only the grant of summary judgment in favor of William R.

Hughes, Inc. (Hughes, Inc.) and Dow, and the district court's action

on a motion to compel production of documents. For the reasons

stated herein, we affirm.

I.

On September 27, 1988, Cecile M. Lescs contracted to purchase a

home in Winchester, Virginia. In conjunction with the closing, the

seller employed Hughes to apply insecticide to the residence, which

Hughes did on November 21, 1988. As part of the treatment, Hughes

injected a pesticide called "Dursban" into the basement floor and

exterior walls. Dursban is subject to the registration requirements of

7 U.S.C.A. § 136a (West Supp. 1998), as administered by the Environmental Protection Agency.

Two days after the Dursban application, Lescs noticed a "strong

and potent" odor during a walk-through of the house. (J.A. at 183-84.)

Because the odor was so strong, Lescs testified that she waited until

January 25, 1989, to move into the house and only occasionally visited during the interim period to perform minor chores. She called

Hughes's office twice before moving into the house to inquire about

the odor and the insecticide treatment and, according to Lescs, the

person with whom she spoke told her that the fumes were not dangerous.

After moving in, Lescs stated that she began to suffer severe maladies including nausea, vomiting, diarrhea, skin rash, nervousness, and

irritability. During the time she lived in the residence, her dog died,

 3
which prompted her to move out of the house on April 14, 1989, due

to concerns about the cause of the dog's death and her own health.

An examination of the dog, however, produced no conclusive evidence as to the cause of its death.

Lescs then contacted Dow for information about Dursban and

spoke on various occasions with Ken Rose, a Dow technical expert.

During one of these conversations, Lescs stated that Rose told her that

Dursban, "when applied properly, . . . was okay to go into homes."

(J.A. at 210-11.) Regarding ridding the house of excess Dursban,

Rose instructed Lescs to wipe down the walls using a basic solution

such as one made with Cheer brand detergent. Lescs returned to the

house and attempted to decontaminate an upstairs bedroom in accordance with Rose's instructions but abandoned the attempt because she

"would cough and [her] hands would burn." (J.A. at 200.)

In 1990 Lescs filed suit in Virginia state court seeking damages

that she allegedly suffered from the Dursban application. On June 6,

1994, she took a voluntary nonsuit of that action. On December 5,

1994, Lescs brought suit against Dow Chemical Company, Dowelanco, Exxon Corporation, Tenneco, Inc., Tenneco Oil Company,

William R. Hughes, Inc., Hughes and Company Pest Control, and

William R. Hughes in the United States District Court for the Western

District of Virginia, based again on damages that she allegedly suffered from Dursban exposure. By order dated June 5, 1995, the district court dismissed with prejudice, pursuant to Federal Rule of Civil

Procedure 12(b)(6), all of Lescs's claims against Dowelanco, Tenneco, Inc., Tenneco Oil Company, and Exxon Corporation, and dismissed the strict liability claims against the other defendants.1 Hughes

and Dow, the remaining defendants, moved for summary judgment on

the unresolved claims. On August 8, 1997, the district court granted

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1 "Hughes and Company Pest Control" is a trade name which was

acquired by Pest Management on May 10, 1991, along with the assets of

William R. Hughes, Inc. In an order dated June 2, 1995, the district court

denied Lescs's motion to add Pest Management as a defendant, thereby

removing Hughes and Company Pest Control as a defendant. Hughes,

Inc. and William R. Hughes, individually, remained defendants and

Lescs does not appeal the refusal to add Pest Management as a defendant.

 4
Dow's motion for summary judgment, resolving all claims in favor

of Dow. See Lescs v. Dow Chem. Co., 976 F. Supp. 393 (W.D. Va.

1997). Hughes's motion for summary judgment was granted in part

and denied in part, leaving only one claim against Hughes for negligent application of the pesticide. See id. at 401. The negligent application action was tried before a jury beginning on August 25, 1997. The

jury returned a verdict in favor of Hughes, and the district court

entered final judgment in favor of all defendants on September 23,

1997.

Lescs does not appeal the dismissal in favor of Dowelanco, Tenneco, Inc., Tenneco Oil Company, and Exxon Corporation, nor does

she contest the dismissal of the strict liability claims against Hughes

or Dow. She does, however, contend that the district court improperly

determined that several of the state law claims were preempted by

federal law under the preemption provision of FIFRA, 7 U.S.C.A.

§ 136v(b) (West Supp. 1998), and that sufficient factual questions

were presented to preserve her claims against Dow and William R.

Hughes, Inc. (Hughes, Inc.).2 Specifically, Lescs argues that the district court erred in granting summary judgment in favor of Dow and

Hughes, Inc. on various state law claims of negligence, negligence

per se, misrepresentation, negligent testing, and breach of an implied

warranty of merchantability. Lescs also argues that the district court

abused its discretion when it failed to rule on a motion by Lescs to

compel the production of certain documents.

These arguments reduce to three questions. First, whether this

Court's interpretation of 7 U.S.C.A. § 136v(b) (West Supp. 1998), the

preemption clause of FIFRA, is still appropriate in light of the United

States Supreme Court's holding in Medtronic, Inc. v. Lohr, 116 S. Ct.

2240 (1996), and, if it is, whether the district court properly applied

the standard. Second, whether the district court improperly ignored

Dow's violation of federally mandated standards, independent industry standards, and the breach of consumer expectations when it

granted summary judgment in favor of Dow on the breach of implied

warranty claim. Third, whether the district court improperly failed to

rule upon Lescs's motion to compel discovery.

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2 Lescs does not pursue any claims against William R. Hughes, individually, in this appeal.

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We address each of these issues in turn.

II.

The first two issues involve a review of the district court's grant

of summary judgment. "The appropriate standard of review for the

granting of summary judgment is de novo." Cohn v. Bond, 953 F.2d

154, 157 (4th Cir. 1991). "[S]ummary judgment is proper `if the

pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). Because this appeal

of summary judgment hinges on determining whether federal law preempts state law claims, an issue of material fact appropriate for trial

can arise only if the claim presented is not legally preempted.

There is, however, a firmly established jurisprudential presumption

against the preemption of state law. See, e.g. , Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Nevertheless, Congress may

expressly preempt state law under the Supremacy Clause, assuming

it acts within its constitutionally delegated authority. See U.S. Const.,

art. VI, § 2; Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 203 (1983); Rice, 331 U.S.

at 230. If Congress statutorily expresses its intent to preempt state

law, as in FIFRA, the only remaining inquiry is the scope of preemption. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 532 (1992)

(Blackmun, J., concurring in part and in the judgment, and dissenting

in part). The FIFRA statutory preemption provision ensures the uniformity of pesticide regulation by pronouncing that a "State shall not

impose or continue in effect any requirements for labeling or packaging [of federally registered pesticides] in addition to or different from

those required under [FIFRA]." 7 U.S.C.A.§ 136v(b) (West Supp.

1998). Thus, federal law clearly sends the message that it solely governs the labeling and packaging of pesticides and that any state law

affecting those requirements is preempted.

This Court has extensively explored the reach of the preemption

language contained in § 136v(b). See Lowe v. Sporicidin Int'l, 47 F.3d

124 (4th Cir. 1995); Worm v. American Cyanimid Co., 5 F.3d 744

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(4th Cir. 1993) (Worm II); Worm v. American Cyanimid Co., 970 F.2d

1301 (4th Cir. 1992) (Worm I). These cases made clear that state laws

imposing different or additional requirements for pesticide labeling or

packaging would be preempted. See Worm I, 970 F.2d at 1308.3 To

further define this general standard, we held that"common law causes

of action alleging that the language of an EPA approved label failed

to adequately warn of risks associated with pesticide are preempted,"

Worm II, 5 F.3d at 748, and that "any state law claim that would

require the defendant to alter its EPA-approved warning label, labeling, or packaging to avoid liability is preempted," Lowe, 47 F.3d at

129. But these cases also recognized that FIFRA does not preempt

state law that authorizes a claim for the "breach of a FIFRA-created

duty." Id. at 129-30 (citing Worm II , 5 F.3d at 748). State law claims

unrelated to labeling or packaging such as negligent testing, manufacturing, and formulating, also escape FIFRA's preemptive effect. See

Worm II, 5 F.3d at 747. Applying these precedents to the facts of this

case, the district court determined that the majority of Lescs's state

law claims were preempted.

A.

On appeal, however, Lescs argues that we should reconsider our

FIFRA preemption jurisprudence in light of the Supreme Court's

decision in Medtronic, Inc. v. Lohr, 116 S. Ct. 2240 (1996) (plurality

opinion), which involved statutes governing the regulation of medical

devices. In a splintered opinion, a plurality of the Supreme Court

determined that generally applicable state law, which did not specifically conflict with federal law, was not preempted. See Medtronic,

116 S. Ct. at 2251-53, 2257-58. Medtronic held that "pre-emption

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3 Notably, every circuit that recently has addressed this question similarly has interpreted the extent of preemption mandated by FIFRA. See,

e.g., Kuiper v. American Cyanamid Co., 131 F.3d 656, 662 (7th Cir.

1997), cert. denied, 118 S. Ct. 1839 (1998); Grenier v. Vermont Log

Bldgs., Inc., 96 F.3d 559, 563 (1st Cir. 1996); Taylor AG Indus. v. PureGro, 54 F.3d 555, 561 (9th Cir. 1995); Welchert v. American Cyanamid,

Inc., 59 F.3d 69, 73 (8th Cir. 1995); MacDonald v. Monsanto Co., 27

F.3d 1021, 1024-25 (5th Cir. 1994); Papas v. Upjohn Co., 985 F.2d 516,

518 (11th Cir. 1993); Arkansas-Platte & Gulf Partnership v. Van Waters

& Rogers, Inc., 981 F.2d 1177, 1179 (10th Cir. 1993).

 7
occur[s] only where a particular state requirement threatens to interfere with a specific federal interest." Id. at 2257. The opinion, however, did not interpret FIFRA, but the Medical Device Amendments

of 1976 (MDA), 90 Stat. 539, which contained a preemption clause

codified at 21 U.S.C.A. § 360k(a) (West Supp. 1998).4 The preemption provision analyzed in Medtronic differs from the one set forth in

FIFRA in at least three respects. First, although it also applied to any

"requirement" established by state law, it was not limited to merely

labeling or packaging. Second, under subsection (b), the clause

allowed the FDA to exempt state requirements from the effect of preemption. 21 U.S.C.A. § 360k(b) (West Supp. 1998) ("Upon application of a State . . ., the Secretary may, by regulation promulgated after

notice and opportunity for an oral hearing, exempt from subsection

(a) of this section . . . a requirement of such State . . . ."). Third, and

perhaps most important, the Court found that the"language of

[§ 360k was] not entirely clear." Medtronic, 116 S. Ct. at 2255; see

also id. at 2260 (Breyer, J., concurring in part and concurring in the

judgment) ("[T]he MDA's pre-emption provision is highly ambiguous."). Because these aspects of the statutory scheme differentiated

the effect of the MDA preemption clause from the preemption clause

contained in FIFRA and supported the Medtronic holding, we determine that our interpretation of FIFRA's preemption clause remains

unaffected.5 Therefore we, as a panel, may not disturb the settled law

of this Circuit.

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4 That preemption clause read as follows:

Except as provided in subsection (b) of this section, no State

or political subdivision of a State may establish or continue in

effect with respect to a device intended for human use any

requirement--

(1) which is different from, or in addition to, any requirement

applicable under this chapter to the device, and

(2) which relates to the safety or effectiveness of the device

or to any other matter included in a requirement applicable to the

device under this chapter.

21 U.S.C.A. § 360k(a).

5 We note that Justice Breyer agreed with the plurality in two of these

three respects, thus adding the fifth vote to form a majority on at least

two distinguishing points of the MDA preemption clause. See Medtronic

 8
1.

In Medtronic, the principal opinion began its analysis with Congress's use of the word "requirement" and determined that giving the

term broad effect would destroy virtually all remedies available under

state law and would severely interfere with state sovereignty. See

Medtronic, 116 S. Ct. at 2251-52. If Congress had intended such a

broad effect, the plurality reasoned, then it would have used a term

such as "remedy," which would have unambiguously achieved the

same effect. See id. at 2251. Instead, based upon a reading of the

entire statute, the plurality concluded that in using the term "requirement," Congress focused not on the preemption of broad common law

causes of action, but on "specific, conflicting State statutes and regulations." Id. at 2252. The plurality, however, expended significant

effort explaining that the language of the statute and its preemption

clause was unusual in its effect, thus narrowing the extent of its operation. See id.

2.

A majority of the Court in Medtronic interpreted the preemption

language through a review of the entire regulatory scheme established

by the MDA, which broadly delegated authority to the FDA. "Congress has given the FDA a unique role in determining the scope of

[the MDA's] pre-emptive effect." Id. at 2255. The principal opinion

explained that the delegation of authority placed the FDA in a favorable position to judge whether state regulations would hinder the

achievement of congressional goals. See id. at 2255-56. Accordingly,

Congress provided the FDA with the authority to exempt state laws

from the operation of the MDA's preemption clause. See 21 U.S.C.A.

360k(b); Medtronic, 116 S. Ct. at 2255.

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v. Lohr, 116 S. Ct. 2240, 2260 (1996) (Breyer, J., concurring in part and

concurring in the judgment) (noting the important role that the FDA

plays in interpreting the effect of preemption and the ambiguity of the

preemption language). Thus, the majority holding depends upon the

unique role of the FDA and the ambiguity of the preemption language

in the MDA.

 9
This unusual delegation of authority, combined with the reading of

the statutory scheme as a whole, advanced in the principal opinion

and which took into account both the use of the word"requirement"

in other passages and the FDA's interpretation of the regulation,

encouraged a departure from a plain reading of the preemption language itself, in favor of a reading that interpreted the broad statutory

purpose:

[Section] 360k refers to "requirements" many times throughout its text. In each instance, the word is linked with language suggesting that its focus is device-specific enactments

of positive law by legislative or administrative bodies, not

the application of general rules of common law by judges

and juries. . . . Moreover, in subsection (b) the FDA is given

authority to exclude certain "requirements" from the scope

of the pre-emption statute. Of the limited number of"exemptions" from pre-emption that the FDA has granted, none

even remotely resemble common-law claims.

Medtronic, 116 S. Ct. at 2252. The principal opinion, though not

joined by a fifth Justice, thus reasoned that the overall structure of the

statute mandated a narrow interpretation of the scope of preemption

and found that common law claims regarding the regulated devices

generally were not preempted by the MDA. See Medtronic, 116 S. Ct.

at 2253.6

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6 We note, however, that the plurality opinion in Medtronic did not preclude the possibility that common law actions could be preempted by the

MDA, but reserved that question for a later day. See Medtronic, Inc. v.

Lohr, 116 S. Ct. 2240, 2257, 2258-59 (1996). Five Justices, however,

concluded that the term "requirements" encompassed common law

claims. See id. at 2259-60 (Breyer, J., concurring in part and concurring

in the judgment); id. at 2262 (O'Connor, J., joined by Rehnquist, C.J.,

Scalia & Thomas, J.J., concurring in part and dissenting in part); see also

Grenier v. Vermont Log Bldgs., Inc., 96 F.3d 559, 563 (1st Cir. 1996) ("It

was once an open question, but is now settled by the Supreme Court in

Cipollone and [Medtronic], that`requirements' in this context presumptively includes state causes of action as well as laws and regulations."). Thus the majority position of the Supreme Court, to which we

are bound, is that common law claims could in fact be preempted by the

 10
3.

Importantly, however, the principle opinion in Medtronic made

clear that other statutory preemption schemes would not necessarily

be subject to the same interpretation. It specifically distinguished the

preemption statute at issue in Cipollone v. Liggett Group, 505 U.S.

504 (1992). In Cipollone, the Court interpreted the extent of preemption mandated by the Public Health Smoking Act of 1969, Pub. L. No.

91-222, 84 Stat. 87 (1969 Act), and the Federal Cigarette Labeling

and Advertising Act, Pub. L. No. 89-92, 79 Stat. 282 (1965) (1965 Act).7

See Cipollone, 505 U.S. at 514-15. Unlike the statute at issue in

Medtronic, the Court in Cipollone determined that the language of the

1969 Act extended federal preemption beyond "specific, conflicting

State statutes," Medtronic, 116 S. Ct. at 2252, to encompass common

law claims that relied on "omissions or inclusions in . . . advertising

or promotions," Cipollone, 505 U.S. at 530-31. Furthermore, the

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language used in the MDA. Cf. O'Dell v. Netherland, 95 F.3d 1214,

1224 (4th Cir. 1996) (noting that the principle of law resulting from a

plurality opinion is the narrowest holding agreed to by a majority of the

Court). A majority of the Court, therefore, does not call into question our

position that common law claims and enactments of positive law are

equally subject to preemption.

7 Section 5 of the Federal Cigarette Labeling and Advertising Act contained the following preemption provision:

(a) No statement relating to smoking and health, other than

the statement required by section 4 of this Act, shall be required

on any cigarette package.

(b) No statement relating to smoking and health shall be

required in the advertising of any cigarettes the packages of

which are labeled in conformity with the provisions of this Act.

§ 5, 79 Stat. at 283. Subsection (b) was amended by the Public Health

Smoking Act of 1969 to read as follows:

(b) No requirement or prohibition based on smoking and health

shall be imposed under State law with respect to the advertising

or promotion of any cigarettes the packages of which are labeled

in conformity with the provisions of this Act.

§ 5(b), 84 Stat. at 88.

 11
smoking regulations did not grant substantial authority to a federal

agency to determine the range of preemption. Therefore, the Court

looked no further than the specific text of the preemption clause contained in the 1969 Act, which was unambiguous in expressing the

scope of preemption. See id. at 521 ("`We must give effect to this

plain language unless there is good reason to believe Congress

intended the language to have some more restrictive meaning.'"

(quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983))).

As Medtronic's principal opinion noted, the preemption clause in

the 1969 Act specifically targeted "a limited set of state requirements

-- those based on smoking and health -- and then only . . . a limited

subset of the possible applications of those requirements -- those

involving the advertising or promotion of any cigarettes the packages

of which are labeled in conformity with the provisions of the federal

statute." Medtronic, 116 S. Ct. at 2252. Thus, the preemption language in the 1969 Act, unlike the language in the MDA, was clear as

to its operation and was interpreted accordingly. See Cipollone, 505

U.S. at 523-24 ("[W]e must fairly but -- in light of the strong presumption against pre-emption -- narrowly construe the precise language of § 5(b) and we must look to each of petitioner's common-law

claims to determine whether it is in fact pre-empted.")

From this analysis, we conclude that our established interpretation

of the FIFRA preemption clause is unchanged by Medtronic. As we

have stated previously, "both the statute contained in Cipollone and

FIFRA contain similar preemption provisions as to labeling." Lowe,

47 F.3d at 129. But key to our determination is the text of the FIFRA

preemption provision, which mandates its reach:"any requirements

for labeling or packaging in addition to or different from those

required under [FIFRA]." 7 U.S.C.A. § 136v(b); see Worm II, 5 F.3d

at 747 (stating that like FIFRA, the statutes at issue in Cipollone "also

contain explicit language addressing the preemptive scope of their

labeling requirements"). FIFRA's language does not suggest some

extraordinarily broad scope of preemption that extends beyond the

statutory scheme. Nor does it work to destroy all means of redress for

plaintiffs under the common law of a state. See Worm II, 5 F.3d at

747 (holding that common law claims unrelated to labeling or packaging are not preempted). In short, the statutory language clearly implements the narrow purpose of Congress to effect uniform labeling and

 12
packaging of pesticides. Because the scope of FIFRA preemption is

plain, it does not require a circuitous analysis to divine congressional

intent. As we stated in Worm II, in accord with the guidance provided

by Cipollone, this Court has "interpret[ed] the express language"

when determining the scope of the FIFRA preemption clause. Id. We

therefore disagree with Lescs's contention that the Medtronic holding

compels a new interpretation of the FIFRA preemption clause.

B.

Despite this determination, however, we must still review whether

the district court properly applied our interpretation of the scope of

FIFRA preemption. As we stated at the outset, FIFRA preempts any

state law, whether a positively enacted statute or a common law duty,

that "would impose a labeling requirement inconsistent with those

established by FIFRA." Worm I, 970 F.2d at 1308. Following this

standard, we have held various claims to be preempted if they were

based upon EPA-approved labeling language. Such claims have

included a failure to warn, a breach of an express warranty or an

implied warranty of merchantability, see Lowe , 47 F.3d at 129, 132,

and a false representation, see Worm II, 5 F.3d at 748. Claims that

relate to a product defect such as "negligent testing, manufacturing,

and formulating" or that were based upon a state law allowing a claim

for the breach of a FIFRA-created duty, however, generally are not

preempted. Worm II, 5 F.3d at 747-48; see Lowe, 47 F.3d at 130 (noting a state law claim for the breach of a FIFRA-created duty, which

prohibited claims about the product that substantially differed from

statements in the registration statement, was not preempted). We now

apply this analysis to Lescs's claims.

1.

Lescs first argues that her label-based claims, including negligent

failure to warn, misbranding, and breach of an implied warranty of

merchantability based on inadequate warnings on the label, are not

preempted because they use compliance with federal law as the foundation for a state law claim under a negligence-per-se theory of liability. Lescs asserts that the Dursban label, approved under the FIFRAmandated registration process, does not comply with certain aspects

of FIFRA itself or with the regulations promulgated under its author-

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ity. She thus concludes that "even if the court were correct in characterizing all of Ms. Lescs' negligence claims as labeling claims, they

would not be preempted." (Appellant's Br. at 26.) This argument

relies in part on Lescs's contention that Medtronic altered the landscape of preemption by allowing claims under general common law

duties. Because we concluded that Medtronic did not alter our earlier

holdings, this challenge to the grant of summary judgment need not

detain us long.

As we stated in Worm II,

If a state elects to recognize that a breach of a FIFRAcreated duty forms the basis for a state remedy, we have

held that it is permitted to do so by 7 U.S.C. § 136v(b).

Allowing such actions, however, is substantially distinguishable from accepting the argument that the state common law

duty to warn is not "in addition to or different from" the federally defined duty.

Worm II, 5 F.3d at 748 (citations omitted). Lescs's claims for misbranding, negligent failure to warn, or breach of an implied warranty

of merchantability, all brought "under the theory that the pesticide

lacked adequate warnings," (Appellant's Br. at 23), clearly "would

require the defendant to alter its EPA-approved warning label, labeling, or packaging to avoid liability," Lowe , 47 F.3d at 129. The district court, therefore, properly concluded that these claims were

preempted.

2.

Next, Lescs ambiguously alleges in her brief that Dow may also

have violated other FIFRA requirements that were independent of the

labeling standards. Because the enforcement of these standards would

not impact the label, she argues that FIFRA's preemption provision

would not prevent a state from allowing a negligence-per se claim to

be based on the violation of these other FIFRA requirements. The

only nonlabel-based FIFRA violation she specifically alleges, however, is Dow's failure to report instances of adverse health effects

related to Dursban exposure in violation of 7 U.S.C.A. § 136d(a)(2)

(West Supp. 1998) (requiring registrants to file reports concerning

 14
"unreasonable adverse effects on the environment of the pesticide").

Even if Virginia recognized this violation of a federal statute as the

basis for a state law negligence-per-se claim, our inquiry is not ended.

Under Virginia law, more is required than the mere violation of a

statute to establish a negligence per se claim, because private citizens

are not permitted the wholesale right to become enforcers of state and

federal laws. A "violation of a statute constitutes negligence per se"

only "if such negligence is a proximate or efficiently contributing

cause of an injury." Esso Standard Oil Co. v. Williams, 117 S.E.2d

93, 95 (Va. 1960). To make a claim for negligence per se under Virginia law, a plaintiff must, therefore, not only prove the violation of

a statute, but also causation and corresponding damages.

Lescs offers no evidence that her alleged injuries were caused by

Dow's failure to report the adverse environmental effects of Dursban.

She has thus not met her burden on an essential element of her claim

and summary judgment is appropriate. See Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986).

3.

Further, Lescs urges claims of "misrepresentation" against both

Dow and Hughes, Inc., based on the "general duty not to deceive" and

argues that the district court improperly determined that these claims

were preempted. (Appellant's Br. at 27, 29.) First, she alleges that an

employee of Hughes, Inc. improperly stated that the Dursban "fumes

were not dangerous." (Appellant's Br. at 28.) Second, she claims that

Rose, the technical expert at Dow, made two improper statements,

one as to the appropriateness of using Dursban in residences and the

other regarding the proper method for decontaminating her house.

Lescs contends that these claims are not preempted under our holding

in Lowe, which permitted state law claims to stand if they related to

statements that substantially differed from the language on the label.

This Court held in Lowe that a party could sue under a state law

cause of action that would hold a defendant liable for violating a provision of FIFRA, specifically 7 U.S.C.A. § 136j(a)(1)(B) (West

1980), which states:

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[I]t shall be unlawful for any person in any State to distribute [or] sell . . . to any person--

. . . .

(B) any registered pesticide if any claims made for it as a

part of its distribution or sale substantially differ from any

claims made for it as a part of the statement required in connection with its registration . . . .

7 U.S.C.A. § 136j(a)(1)(B); Lowe, 47 F.3d at 130. This holding was

consistent with our interpretation of the FIFRA preemption clause as

not affecting state law claims that based a cause of action upon the

breach of a FIFRA-created duty. See Lowe, 47 F.3d at 129-30. We

noted Maryland is not preempted from imposing common law liability for advertising statements that substantially differed from those

made in the EPA registration statement, see id. at 130, which included

the EPA-approved labeling, see 7 U.S.C.A.§ 136a(c)(5)(B) (West

1980). Equally as clear is this Court's conclusion that a claim challenging "the same language that constitutes an EPA-approved label,

labeling, or packaging," is preempted. Lowe , 47 F.3d at 129 (citing

Worm II, 5 F.3d at 748).

In this case, Lescs does not claim the breach of a FIFRA duty

under a state common law theory of recovery recognized in Virginia,

but instead, simply asserts that Dow and Hughes, Inc. both breached

a general common law duty in the Commonwealth of Virginia not to

misrepresent. We agree with the district court that Rose's statement

to Lescs, "that he felt that when applied properly, that this chemical

was okay to go into homes," (J.A. at 210-11), was not substantially

different from the language on the label, and thus any claim based

upon it was preempted. See Lescs v. Dow Chem. Co., 976 F. Supp.

393, 400 (W.D. Va. 1997). All of Lescs's claims under the theory of

misrepresentation, however, must fail for a more basic reason.

Although not mentioned by the parties to this appeal, the federal

courts of this Circuit repeatedly have determined that Virginia does

not recognize a general cause of action for negligent misrepresentation. See Bentley v. Legent Corp., 849 F. Supp. 429, 434 (E.D.

Va. 1994) ("Virginia does not recognize any tort of negligent

 16
misrepresentation."), aff'd sub nom. Herman v. Legent Corp., 50 F.3d

6 (4th Cir. 1995); Joyce v. Lincoln Nat'l Life Ins. Co., 845 F. Supp.

353, 354 (E.D. Va. 1993) (same), aff'd sub nom. Joyce v. Benefits

Mktg. Group, Inc., 32 F.3d 562 (4th Cir. 1994); Haigh v. Matsushita

Elec. Corp. of Am., 676 F. Supp. 1332, 1349-50 (E.D. Va. 1987)

(same). Because Lescs advances no valid theory of state law to support her claim, we must affirm the grant of summary judgment in

favor of Dow and Hughes, Inc. on the misrepresentation claims.

4.

Lescs also argues that the district court erred by characterizing her

negligent testing claim as a subset of other negligence claims and

holding that they were collectively preempted. From a reading of the

district court opinion, however, it is clear that the district court did not

address negligent testing in its opinion. We do not assume, as Lescs

does, that this omission was due to the district court's inclusion of the

negligent testing claim with other causes of action. Whatever the district court's reasoning, this omission was appropriate because Lescs

did not meet her burden under the pleading rules to present a claim

for negligent testing.

Federal Rule of Civil Procedure 8(a) requires "a short and plain

statement of the claim showing that the pleader is entitled to relief."

Fed. R. Civ. P. 8(a)(2). "This portion of Rule 8 indicates the objective

of the rules to avoid technicalities and to require that the pleading discharge the function of giving the opposing party fair notice of the

nature and basis or grounds of the claim . . . ." 5 Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure § 1215 (1990).

"Nevertheless, despite the more forgiving pleading standards, the

essence of a claim remains its factual elements." Gilbane Bldg. Co.

v. Federal Reserve Bank, 80 F.3d 895, 900 (4th Cir. 1996). Under

Rule 8(a)(2), a claim will be acceptable only if a"plaintiff colorably

states facts which, if proven, would entitle him to relief." Adams v.

Bain, 697 F.2d 1213, 1216 (4th Cir. 1982).

A review of Lescs's complaint, including the page her counsel specifically referenced at oral argument, reveals only a brief mention of

Dow's duty to properly test Dursban and a bare allegation that Dow

 17
failed to properly design and manufacture Dursban. 8 During oral argument, Lescs's counsel asserted that a negligent testing claim is "similar to a design defect claim, but different." Despite our attempt to

locate factual allegations that would give rise to a claim that Dow

failed to properly test Dursban, the complaint fails even to state that

Dow breached this duty, much less to assert facts that, if true, would

tend to show that Dow breached its duty to test Dursban. Neither Dow

nor the district court received proper notice of the claim.9

Our reading of Lescs's complaint reveals no factual allegations that

would entitle Lescs to relief under a theory of negligent testing, nor

does she point to any in her brief on appeal. We have no choice but

to determine that Lescs failed to properly present a claim under a theory of negligent testing and thus her challenge to summary judgment

on this point is without merit.

III.

The district court also granted summary judgment in favor of Dow

on Lescs's claim that Dow breached the implied warranty of merchantability by marketing an unreasonably dangerous product.

Under Virginia law, to prove a breach of the implied warranty of

merchantability, a plaintiff must show: "(1) that the goods were

unreasonably dangerous for the use to which they would ordinarily be

put or for some other reasonably foreseeable purpose, and (2) that the

unreasonably dangerous condition existed when the goods left the

manufacturer's hands." Morgen Indus., Inc. v. Vaughan, 471 S.E.2d

489, 492 (Va. 1996). Unreasonably dangerous is interpreted as "de-

_________________________________________________________________

8 We do note that in one of the numerous filings in the district court,

Lescs did allege "the negligent failure to test adequately before putting

said product upon the market," in reference to the defendants generally.

(J.A. at 348.) But, this broad allegation was devoid of factual support.

9 Further supporting our conclusion is Lescs's own statement to this

Court in her reply brief: "Defendants did not even to [sic] mention Ms.

Lescs' negligent testing claim in its summary judgment briefing in the

court below, let alone present a factual argument on this theory. Nor did

the district court refer to this claim in its summary judgment opinion."

(Appellant's R. Br. at 12 (citations and footnotes omitted).)

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fective in assembly or manufacture, unreasonably dangerous in

design, or unaccompanied by adequate warnings concerning its hazardous properties." Id. A design defect can be proven if the product

fails to meet government or industry standards or the reasonable

expectations of consumers. See Alevromagiros v. Hechinger Co., 993

F.2d 417, 420 (4th Cir. 1993) (interpreting Virginia law). Lescs does

not complain of a manufacturing defect and any claim based on inadequate warnings is preempted, leaving only a claim for a design

defect. But as we explain, there is no proof that Dursban failed to

meet either government standards, industry standards, or consumer

expectations.

Lescs's only argument that Dow violated government standards

consists of her contentions that Dursban was misbranded, and that

Dow did not submit reports of adverse health effects caused by Dursban. As we have already explained in Part II.A, claims that would

require the placement of different or additional requirements on the

label are preempted. And, in Part II.B.2, we explained that there was

no causal link established between Lescs's claimed injuries and a failure to report the adverse effects of Dursban on the environment. Furthermore, we fail to see how government reporting requirements

relate to the product's design. Thus, Lescs cannot successfully pursue

her claim for the breach of the implied warranty of merchantability

on these grounds.

The contention that Dursban failed to meet consumer expectations

must also fail. "Consumer expectations, which may differ from government or industry standards, can be established through evidence of

actual industry practices, . . . published literature, and from direct evidence of what reasonable purchasers considered defective."

Alevromagiros, 993 F.2d at 420-21 (internal quotation marks omitted). Despite the fact that consumer expectations might deviate from

government mandated standards, certainly the existence of those standards, especially when they relate to the content of product information, bears on reasonable expectations. As the district court pointed

out, the warning label is approved by the EPA and it would be anomalous to hold "`that a consumer is entitled to expect a product to perform more safely than its government-mandated warnings indicate.'"

Lescs, 976 F. Supp. at 399 (quoting Papike v. Tambrands Inc., 107

F.3d 737, 743 (9th Cir.), cert. denied, 118 S. Ct. 166 (1997)). More-

 19
over, Lescs has produced no information about actual industry practices, literature, or direct evidence of reasonable consumer

expectations that would support her contention that Dursban failed

this standard. There is no evidence that Dursban failed to meet consumer expectations.

Lastly, Lescs offers two theories to support her contention that

Dow failed to meet industry standards in its production of Dursban.

She first argues that the Chemical Manufacturers Association (CMA)

Responsible Care Progress Report for 1995-1996 (CMA Report)

establishes standards with which Dow failed to comply.10 As Dow

points out, there are obstacles to using the CMA Report as a basis for

determining whether Dow followed industry standards. To begin

with, the report relates not to the time period during which the relevant events occurred, but instead relates to 1995-1996. Virginia law

requires that any standards asserted be those "existing when the

[product] was manufactured."11 Mears v. General Motors Corp., 896

F. Supp. 548, 551 (E.D. Va. 1995) (interpreting Virginia law). For

this reason alone, the report is irrelevant and does not support Lescs's

claim. In addition, however, a review of the CMA Report reveals little

in the way of recognizable standards.12 See Greene v. Boddie-Noell

Enters., 966 F. Supp. 416, 419 (1997) (noting a"plaintiff's obligation

_________________________________________________________________

10 We note the question raised as to whether the CMA Report was

admitted by the district court and thus properly a part of the record on

appeal. Because we determine that this report would not support Lescs's

claims even if it were admitted, we have no need to resolve this issue.

11 We decline Lescs's invitation to visit a CMA website for the purpose

of authenticating the CMA Report or determining what CMA standards

existed during the relevant time period.

12 Lescs highlights various "standards" in the CMA Report: "`produce

chemicals that can be . . . used . . . safely;' to`make health, safety and

environmental considerations a priority in our planning for all existing

and new products and processes;' to `report promptly to officials,

employees, customers and the public, information on chemical-related

health and environmental hazards and to recommend protective measures;' and `to extend knowledge by conducting or supporting research

on the health, safety and environmental effects of our products.'" (Appellant's Br. at 33-34.) To put it mildly, this language paints with a broad

brush.

 20
to demonstrate . . . proof that the defendant breached a recognizable

standard").

Lescs's second theory on the manner in which Dow violated industry standards borders on frivolous. Without revealing with which

industry standard Dow failed to comply, Lescs summarily asserts that

the inclusion of xylene range solvent in Dursban was inappropriate

because a label then in effect for one manufacturer's concentrated

xylene product stated that it was "for industrial use only." (J.A. at

472.) This assertion fails to recognize that the EPA approved warning

label for Dursban took into account all of its components. Common

sense alone would dictate that the hazardous propensities of a chemical may vary greatly according to its dilution and potential interaction

with other components. In other contexts, such as OSHA regulations,

the federal government has recognized this fact. See 29 C.F.R.

§ 1910.1200(d)(5)(i), (ii) (1998) (stating that a solution is only considered to manifest the same health risks as its component parts if the

solution is not tested as a whole). We find no industry standard that

Dow violated by including a xylene range solvent in Dursban.

In summary, the district court properly granted summary judgment

in favor of Dow on Lescs's contention that Dow breached the implied

warranty of merchantability. There is insufficient evidence that Dow

failed to meet government standards, industry standards, or consumer

expectations in its production and sale of Dursban.

IV.

Lescs's final complaint is that the district court failed to rule on her

second motion to compel production of documents, which was filed

on May 17, 1996 (May 17, 1996 motion). Because this issue involves

the district court's control over the discovery process, the district

court will be reversed only upon a finding that the court abused its

discretion. See Cohn v. Bond, 953 F.3d 154, 157 (4th Cir. 1991);

Worm II, 5 F.3d 744, 749 (4th Cir. 1993).

On May 21, 1997, the district court entered an order (May 21, 1997

order) denying Lescs's motion to reopen discovery stating: "Plaintiff

has already had ample opportunity for proper discovery. The court

believes that Defendants will be unfairly prejudiced by any further

 21
discovery." (J.A. at 391 (emphasis added).) This order referred

directly to a motion filed by Lescs on April 14, 1997, which was entitled: "Motion to Reopen Discovery, Allow Additional Experts and

Expansion of Opinions of Existing Experts, to Amend the Pleadings,

For Deferral of Decisions on all Existing Motions Pending Such

Additional Discovery and for Other Relief by Cecile M. Lescs" (April

14, 1997, motion). (J.A. at 17.) The May 17, 1996 motion, which is

the subject of Lescs's argument, was filed approximately a year prior

to the court's May 21, 1997 order. Based on the wording of the May

21, 1997 order, however, it disposed of all outstanding discovery

issues, not just the April 14, 1997 motion -- noting its reasoning that

Lescs already had ample opportunity for discovery.

The May 21, 1997 order adequately disposed of all outstanding

motions to compel discovery and reflects no abuse of discretion.

There is no cause to remand this issue to the district court.

V.

For the reasons stated herein, we affirm the judgment of the district

court.

AFFIRMED

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