## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1200

___________ National Bank of Commerce, * of El Dorado, Arkansas, * guardian of the estate (only) of * Matthew Nolan Arnold, a minor; * Michael David Arnold, * Individually, and as parent and next * friend of Matthew Nolan Arnold, * a minor, * * Appellants. * * Appeal from the United States v. * District Court for the Western * District of Arkansas. Dow Chemical Co.; Rofan Services, * Inc.; Epco, Inc., of Indiana, * doing business as Dowelanco; * Chevron Chemical Company; * Ciba Geigy Corp.; Bengal Chemical * Company; United Industries * Corporation; John Does #1-10, * * Appellees. *

___________ Submitted: September 25, 1998 Filed: January 11, 1999

___________ Before RICHARD S. ARNOLD, BEAM, and HANSEN, Circuit Judges.

___________The Honorable Harry F. Barnes, United States District Judge for the Western 1 District of Arkansas.
-2- BEAM, Circuit Judge.
Representatives of Matthew Nolan Arnold, and his father Michael David Arnold (the Arnol ds), appeal an adverse grant of summary judgment on their claims agains t
seve ral chemical companies. The district court granted summary judgment in favo r 1 of Dow Ch emical Co., Rofan Services, Inc. and Epco, Inc. because the evidenc e sh owed that their product had not been used in the Arnolds' home. The district court gr antedsummary judgment to the remaining chemical companies, United Industrie s Corp., Ciba Geigy Corp., Chevron Chemical Co., and Bengal Chemical Co. because it found that the Federal Insecticide, Fungicide and Rodenticide Act preempts th e Arnolds' claims. We affirm.

I. BACKGROUND
Jerry and Patricia Arnold had problems with roaches and other househol d ins ects. To eliminate the problem, they allegedly purchased and applied thre e pestic ides: Spectracide Dursban Indoor and Outdoor Insect Control, Ortho Hi-Power Ant, Roach & Spider Spray/Formula II, and Bengal Roach Spray. Jerry and Patricia Arnold con tend they were using these products when their son and daughter-in-law , Michael and Debra Arnold , moved into their home in December of 1992. Around the time they moved in, Debra Arnold became pregnant with Matthew Arnold who wa s bor n September 7, 1993. The use of pesticides allegedly continued throughout th e early stages o f Debra Arnold's pregnancy, that is until April 1, 1993. When Matthew Arnold was born, he suffered from multiple birth defe cts. The Arnolds filed this action in federal district court alleging negligence, products liability, and breach of warranty claims against Dow Chemical Co., Rofan Services, Inc. and Epco, Inc. of Indiana-3-

(collectively "Dow"), United Industries Corp., Ciba Geigy Corp., Chevron Chemical Co., and Bengal Chemical Co.

D o w manufactures the chemical Dursban. Dursban, in turn, is used by United Industr ies Corp. (United) to formulate the product Spectracide Dursban Indoor an d Outdoor Insect Control (Spectracide). Spectracide is then distributed by United to the public. The Arnolds contend that the Spectracide was purchased from Henley's Feed Store and came in a metal or glass container. Buddy Henley, the proprietor of Henley's Feed Store, testi fied that the store has never sold nor stocked the Spectracide product andUnited, the product's distributor, presented evidence that the product was never formulated or distributed in a metal or glass container.
Ciba Geigy Corp. manufactures the chemical Di azinon. Diazinon is used by the Chevron Chemical Co. to formulate the p roduct Ortho Hi-Power Ant, Roach & Spider Spray/F ormula

II. Chevron distributes this product to the public. Bengal Chemica l Co. manufactures and distributes Bengal Roach Spray.

In order t o market their products, Dow, United, Ciba Geigy, Chevron, an d Bengal registered them with the United States Environmental Protection Agenc y (EPA) and received an approved label. The registr ation process includes, among other thing s, identification of the product’s chemical, toxicological, physiological , bio chemical, environmental, and ecological characteristics. The EPA then issues a Pest icide Fact Sheet summarizing the product’s information. The authority an d statutory framework f

or this process is provided by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). 7 U.S.C. §§ 136(a)-(y).

After discovery in this action had continued for over a year, but before th e discovery completion deadline had passed, all of the companies moved for summary judgment. The Arnolds responded by seeking to delay summary judgment to allo w completion of additional discovery. The Arnolds' essentially stated only that moreDow did not move for summary judgment based on FIFRA preemption

. 2 Instead, their summary judgment motion was based solely on product identification

. United mov ed for summary judgment on product identification along with Dow, bu t United’s motion was ruled moot b ecause they were granted summary judgment on the preemption issue.
-4- disc overy could be helpful. The district court denied further discovery and grante d summary judgment for each company. The district court granted summary judgment to Ciba Geigy, Chevron, Bengal, and United because it f ound that FIFRA preempts the Ar nolds' claims. With respect to Dow, the district court found "the products used by the Arnolds could not have containe d Dursban." National Bank of Commerce v. Dow Chem. Co. , No. 96-1099, memorandum op. at 13 (W.D. Ark. Nov. 19, 1997). 2

II. DISCUSSION

The Arnolds advance three reasons why summary judgment was inappropriate. First, they assert that summary judgment was premature because discovery had no t been completed. Second, they contend that the evidence adequately identifies th e product us ed in the Arnolds' home. Finally, the Arnolds assert that FIFRA does no t preempt their claims.

A. Completion of Discovery

The Arnolds argue that the outstanding discovery in their case would hav e resulted in acquisition of "more evidence in support of their response to defendants ’ Motions for Summary Judgment." Brief for Appellants at 5. The Arnolds’ contention is not novel since s ummary judgment is appropriate when there is "adequate time" for discove ry and not solely when discovery is complete. See Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). The district court has discretion to determine when there has bee n adequate time for discovery and we review that determination for abuse o f discretion. See Noll v. Petrovsky , 828 F.2d 461, 462 (8th Cir. 1987).There is a great deal of discussion in the briefs about a Rule 56(f) motion. In 3 our search of the record

we were unable to find any such motion by the Arnolds. The only request for further discovery was by way of vague reference in responses t o motions for summary judgment. As earlier noted, United, which formulates the Spectracide containing Dow' s 4 Dursban product, also made a product identification claim, but its motion was mooted because of the district court's preemption decision.
-5- When faced with summary judgment motions before the completion o f discovery, the district court also has discretion, upon a motion under Federal Rule of Civil Procedure 56(f), to refuse summary judgment or to order a continuance "t o permitaffi davits to be obtained or depositions to be taken or discovery to be had. " Fed. R. Civ. P. 56(f). The Arnolds responded to the summary judgment motions b y sp eculating that more discovery would be useful. They failed to show how th e 3

a d ditional discovery would alter the evidence before the district court. A conclusory statement that some useful evidence could possibly be found is insufficient to preclude the termination of discovery. See City of Mt. Pleasant v. Associated Elec. Coop., Inc. , 838 F. 2d 268, 280 (8th Cir. 1988). We find the district court did not abuse it s di scretion by denying further discovery and ruling on summary judgment after over a year of discovery had been completed.

B. Product Identification
Summary judgment is appropriate if, after viewing the facts and all reasonable inferenc es in the light most favorable to the nonmoving party, see Matsushita Elec

. Indus. Co. v. Zenit

h Radio Corp. , 475 U.S. 574, 587 (1986), the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitle d to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The district court grante d Dow summary judgment because the uncontroverted evidence established that United's Spectracide product, containing Dow's Dursban product, was not used by the Arnolds. 4Th e Arnolds attempted to introduce additional evidence, by way of affidavits, 5 on a motion for reconsideration of summary judgment. This is only permitted i n exc eptional circumstances. See Concordia College Corp. v. W.R. Grace & Co. , 999 F.2d 326, 330 (8th Cir. 1 993). The Arnolds have made no showing why the evidence coul d not have been presented earlier. Furthermore, the new affidavits ar e co ntradictory and of little help. The district court correctly refused to consider th e evidence. At oral argument, the Arnolds' counsel suggested that maybe it was "some other 6 store." This is an equivocation of recent vintage attempting to press a clai m unsupported by the record.
-6- We review the district court’s grant of summ ary judgment de novo. See South Dakota Mining Ass'n, Inc. v. Lawrence County , 155 F.3d 1005, 1009 (8th Cir. 1998).

Before Dow and/or Unite d can be held liable for causing an injury, the Arnolds must establish that the Spectracide product was actually used. The Arnolds argue that their affidavits demonstrate that a genuine issue of material fact exists concernin g whether the Spectracide product was used in the Arnold home. In their affidavits, the 5 Arnolds st ate that they purchased the Spectracide product at Henley's Feed Store and that it came in a glass or metal container. Ho wever, during discovery Dow and United produced uncontroverted evidence that Henley's Feed Store has neither sold no r stocked Spectracide Dursban Indo or and Outdoor Insect Control and that it was never formulated or distributed in a metal or glass container. 6
Once a party moving for s ummary judgment has made a sufficient showing, the burden rests with the non- moving party to set forth specific facts, by affidavit or other evidence, showi ng that a genuine issue of material fact exists. It is not enough to rest on the pleadings and allegations. See Chi sm v. W.R. Grace & Co. , 158 F.3d 988, 990 (8th Cir. 1998). Aside from the pleadings and allegations, the Arnolds rest theirThe Arnolds seek to survive summary j udgment on this issue by pointing to the 7 following testimony: Q: What do you recall purchasing there? A: I bought the Bengal spray there. And th en pesticide with Dursban. Q: Do you recall what that was called? A: Spectracide? Something like that? * * * Q: Do you recall what type of packaging it came in? A: Not ex actly. I know it was something that would have had a screw-on top because it was a concentrate that had to be mixed up. But whether it was metal or glass, I couldn't tell you. Q: Do you recall that it was one of the two, metal or glass? A: Yes, sir. Brief for Appellants at 40-41. This interchange does nothing to controvert Dow and United's evidence. All the alle gations and pleadings name Spectracide Dursban Indoor and Outdoor Insec t control

. The Arnolds would have us find that the statement–"something lik e that"–creates creates a genuine issue of material fact. It does not.
-7- prod uct identification burden on a snippet of uncertain testimony. This does no t 7 create a genuine issue of material fact because the Arnolds "must do more than simply show that there is some me taphysical doubt as to the material facts." Matsushita , 475 U.S. at 586. They must show there is sufficient evidence to support a jury verdict in thei r favor. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986). Th e Arnolds h ave not made the requisite showing. Although only Dow was grante d summary j udgment on the product identification issue, we find that both Dow an d United are entitled to summary judgment on this ground.-8-

C. FIFRA Preemption

The dis trict court granted summary judgment to Ciba Geigy Corp., Chevro n Chemical Co., Bengal Chemical Co., and United becau se FIFRA preempts the Arnolds' claims. Preemption, which stems from the Supremacy Clause of the United State s Constitution, invalidates state edicts that interfere with or are contrary to federal law. See U.S. Const. art. VI, cl. 2; Wisconsin Public Intervenor v. Mortier , 501 U.S. 597, 604 ( 1991). Such state action includes legislative enactments and executiv e pronouncements (positive law) and also encompasses applicable common law claims recognized by state courts. See Cipollone v. Liggett Group, Inc. , 505 U.S. 504, 521-22 (1992). Pree mption is a question of law that we review de novo. See Humphrey v

. Sequentia, Inc. , 58 F.3d 1238, 1243 (8th Cir. 1995).
"FIFRA creates a comprehe nsive scheme for the regulation of pesticide labeling and packaging." Welchert v. American Cyanamid, Inc. , 59 F.3d 69, 71 (8th Cir. 1995). The EPA enforce s FIFRA, in part, through extensive review and approval of pesticide labels. Once a label is approved, FIFRA expressly provides for a defense, arising from preemption, against certain state law claims. However, the Act does not provide a total bar against state regulation. FIFRA only restricts state-based demands that “impose or continue in effect any requirements for labeling or packaging in addition to or different fromtho se required under this subchapter.” 7 U.S.C. § 136v(b). FIFRA's limitatio n
on state labeling and packaging rules is balanced by its grant of authority for states to otherwise “regulate the sale or use of any federally registered pesticide or device in the State, but on ly if and to the extent the regulation does not permit any sale or us e pro hibited by this subchapter.” Id. § 136v(a). Thus, the language of FIFRA attempts to strike a balance between state and federal control. Cf. Mortier , 501 U.S. at 61 3 (stating that FIFRA leaves ample room for state regulation).

Th e Arnolds contend that their negligence, products liability and breach o f warranty claims are not preempte d by FIFRA's language. However, under the guise ofTh e Arnolds' complaint alleges such things as: negligence in “failing to plac e 8 a warn ing label on all containers,” negligence in “implementing and maintaining a n ongoing program of education and indoctrination,” negligence in “suppressin g informationfrom the public," product defect from defendants' failure “to adequately warn,” an d product defect by continuing "to sell, distribute and apply the product t o the unsuspecting consuming pubi c.” Appendix for Appellants at 36-61. These claims are clearly premised on a failure to warn or to properly label and are therefor e preempted. Th e broad title of products liability generally encompasses manufacturin g 9 defect , defect in design, and defect because of inadequate instructions or warnings

. See Restatement (Third) of Torts § 2 (1998); Ark. Code Ann. § 16-116-102(5).
-9- neg ligence and products liability claims, the Arnolds make numerous assertions o f failure to place a warning label on all containers, and fa ilure to place adequate warnings on the chemical products. 8

We have held that state common law claims for “inadequate labeling or failure to warn [are] preempted by FIFRA.” Bic e v. Leslie’s Poolmart, Inc. , 39 F.3d 887, 888 (8th Cir. 199 4). The Arnolds' claims of inadequate labeling or failure to warn fal l squar ely within Bice and are preempted. It is immaterial whether an inadequat e label ing or failure to warn claim is brought under a negligence or products liability theory. If a state law claim is premised on inade quate labeling or a failure to warn, the 9 impact of allowing the claim woul d be to impose an additional or different requirement for the label or packaging. See National Bank of Commerce v. Kimberly-Clark Corp. , 38 F.3d 988, 992 (8th Cir. 1994) (finding that FIFRA, to a certain e xtent, preempts state tort claim s based

on inadequate labeling); see also King v. E.I. DuPont De Nemour s and Co. , 996 F.2d 1346, 1349 (1st Cir. 1993) (holding that FIFRA preempts state law tort claims based

on failure to warn); Papas v. Upjohn Co. , 985 F.2d 516, 520 (11t h Cir. 1993) (concluding that FIFRA preempts state common law actions to the exten t predicated

on inadequate labeling or packaging).

The Arnolds advance several breach of warranty claims, but we have also held that common law claims for breach of express warranty are preempted by FIFRA. SeeAlthough the Arnolds note the absence of Sulfotepp, or tetraethy l 10 dithiopyrophosphate, in the EPA's Pesticide Fact Shee t, there is some evidence that the EPA is aware of the impurity Sulfotepp and approved the label for Diazinon [an d Dursban] des pite its potential existence. The chemical companies argue that because the EPA i s possibly aware of the occurrence of Sulfotepp in the manufacture o f Diazi non, this claim really relates to a failure to warn claim. Nevertheless, we vie w the evidence in the light most favorab le to the non-moving party. See Matsushita , 475 U.S. at 587. The Arnolds argue that the absence of Sulfotepp in the EPA's Pesticide Fact Sheet suggests that the information was withheld from the EPA and that th e che mical companies should thereby be estopped from asserting FIFRA preemption

. We express no view concerning whether a defendant may be estopped from claiming FIFRA preemption when material has been withheld from the EPA in the registration process because there is no reasonable in ference in the record that such occurred here. The Arnolds' remaining claims, not specifically addressed in this opinion, lac k sufficient merit to be discussed.
-10- Wel chert , 59 F.3d at 73. Thus, the Arnolds’ express warranty claims fall withi n Welchert and are preempted. Furthermore, we find that FIFRA preempts the Arnolds’ imp liedwarranty claims. Allowing their implied warranty claims to survive FIFR A preemption would result in additional or different requirements for the pesticide label or package.
Finally, the Arnolds' advance claims for defective manufacture or design based upon the presence of toxic impurities in the goods. The chemical companies contend, nevertheless, that the claims either relate to product labeli ng or packaging or are artfully articulated to disguise claims based o n inadequate labeling, failure to warn, or a breach of warra nty. The district court agreed with the companies and held that all of th e Arnolds' cl aims were "based upon inadequate labeling or warnings," and therefore are preempted by FIFRA. National B ank , No. 96-1099, at 10. Since it is clear that not all state regu lation is preempted under FIFRA, see Mortier , 501 U.S. at 614, we mus t determine whether the law preempts these particular claims.
The complaint alleges that at the time of sale, the Diazinon in the Ortho product th ey used was contaminated with other toxic substances, such as Sulfotepp, that ar e teratogenic (causing fetal malformations). To support their claim, the Arnolds 10SeeAppen dix for Appellee Ciba Geigy Corp. at 98-116 (reproducing articles 11 by William J. Allender and James Keegan; E. P. Meier, et al.; and Richard Turle and Barry Levac). This includes state regulatio n in the form of positive law–which happens to be 12 the case here since Arkansas has codified the claim.
-11- produ ce three scholarly articles that discuss Sulfotepp. These articles advance th e following propositions: (1) it is well known that Sulfotepp is an impurity in Diazinon; (2) Sulfotepp possibly occurs or results from the production or manufacture o f Diazin on; and (3) Sulfotepp should be eliminated, if possible, or regulatory actio n should be taken. 11

A claim of defective manufacture or design of this kind does not directly attack the EPA-approved label or packaging. Although the s pecifications and ingredients may be k nown, approved and accounted for in the EPA-approved label, a defect may stil l
occur as a result of inadequate manufacturing or inappropriate design. Accordingly , we agree with the Fourth Circuit, that such claims are not preempted by FIFRA. See Worm v. American Cyanamid Co. , 5 F.3d 744, 749 (4th Cir. 1993); see also Reutzel
v. Spart an Chem. Co. , 903 F. Supp. 1272, 1285 (N.D. Iowa 1995). In other words , defectively manufactured or design ed products properly labeled under FIFRA may still be subject to state regulation, in the form of common law or other claims. 12

The Arnolds' defective manufacturing or design claims fail, however, no t because of preemption, but because they lack sufficient evidentiary support to escape summary judgment. Cf. Worm , 5 F.3d at 749 (finding insufficient support for claim s that survived FIFRA preemp tion). In order to survive summary judgment, the Arnolds must provide sufficient evidence of the following: (1) the product supplie r manufactures, assembles, sells, or distributes the product; (2) the product was defective rendering itIn a recent case involving the pesticide Durs ban, we held that expert testimony 13 linking a child's birth defects and the p esticide Dursban did not have “a valid scientific fo undation, as required by the Supreme Court in Daubert v. Merrell Do w Pharmaceuti cals, Inc. , 509 U.S. 579 (1993)." National Bank of Commerce v. Do w Chem. Co. , 133 F.3d 1132 (8th Cir. 1998). The Arnolds likewise failed to elici t admissible expert testimony linking the birth defects to a defective and unreasonably dangerous product. S ee, e.g. , Davis v. DuPont , 729 F. Supp. 652, 654-55 (E.D. Ark. 1989 ) 14 (analyzing the Arkansas strict products liability statute).
-12- unreasonably dangero us; and (3) the defective condition proximately caused the harm. See Ark. Code Ann. § 4-86-102(a).

There is no question that the Arnolds have met the first requirement unde r Arkan sas law. Their difficulties arise with the second and third requirements. Th e three articles discussing Diazinon and Sulfotepp do not provide the requisite support. The Arnolds' evidence shows that Debra Arnold was allegedly exposed to some level of Diazinon during pregnancy, that the Diazinon could have contained the impurity Sulfotepp, and that Matthew Arnold has birth defects. What the A rnolds' evidence does not show is whether the product, with or without Sulfotepp, was unreasonabl y dangerous, and whether the defective condition proximately caused the harm. 13

The Arnolds' allegations seem to suggest that the mere existence of Sulfotep p demonst rates a manufacturing or design defect which is unreasonably dangerous an d musthave caused the birth defects. A case founded on speculation or suspicion i s insu fficient

to survive a motion for summary judgment. See Metge v. Baehler , 76 2 F.2d 621, 625 (8th Cir. 198 5). More is required. The burden rests with the Arnolds. 14 They must come forward with sufficient evidence to support their claims and canno t stand on their complaint, see Celotex , 477 U.S. at 324, and unfounded speculation

. Therefore, the district court's grant of s ummary judgment was correct, albeit on slightly different grounds. See Hall v. LHACO, Inc. , 140 F.3d 1190, 1193 (8th Cir. 1998)-13-

(fin ding that the district court's grant of summary judgment can be affirmed on an y ground supported by the record).

III. CONCLUSION
For the foregoing reasons, the district court's judgment is affirmed.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.