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Arnold v. The Dow Chemical Company (2001) 91 Cal. App. 4th 698, 110 Cal. Rptr. 2d 722.

Ashley and Alexa Arnold were two young clients of the Metzger Law Group who were exposed to the pesticide Dursban when a pesticide applicator applied it to the family home to eradicate an ant infestation.  Ashley was hospitalized with acute pancreatitis and Alexa sustained injuries in utero that resulted in partial paralysis.  On their behalf, the Metzger Law Group sued Dow Chemical Company claiming that its Dursban was defective in its design because an ordinary consumer would not reasonably expect domestic application of the pesticide to cause such injuries to children, and that Dow breached implied warranties of fitness for use and safety.  Dow filed a summary judgment motion, claiming that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) preempted California tort law, precluding the case.  The trial court agreed with Dow, sustained the demurrer, and dismissed the action.  The Metzger Law Group appealed on behalf of Ashley and Alexa and the Court of Appeal reversed, holding that FIFRA does not preempt state law claims for design defect strict liability and breach of implied warranties, and that a plaintiff’s claim that a pesticide did not perform as safely as a consumer would reasonably expect is viable under California’s “consumer expectations” test of design defect strict liability.  The Court also held that the Arnold family did not have to buy the Dursban in order to pursue their claim for breach of implied warranties of fitness for use and safety.