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Nichols v. American Cyanamid Co.

August 1, 2007

RON NICHOLS, ET AL. PLAINTIFFS
v.
AMERICAN CYANAMID CO. AND BASF CORPORATION DEFENDANTS



MEMORANDUM AND ORDER

Background

The facts in this case are not disputed. On or about May 2 through May 13, 2000, Plaintiffs planted approximately 2,534.1 acres of cotton.*fn1 Immediately behind the planter, Plaintiffs applied Prowl 3-3 EC herbicide to all but 50 acres of the cotton in accordance with label directions and the express recommendation of Kim Mayberry, field representative for American Cyanamid, for the control of grass in the emerging cotton crop.

The cotton seed planted and grown by Plaintiffs germinated and emerged into acceptable stands of cotton. However, in the latter part of May 2000, Plaintiffs sustained substantial rainfall on their emerging cotton crop. Following the rain, Plaintiffs noticed that the cotton plants were failing to thrive and mature as healthy cotton plants. On or about June 10, 2000, Plaintiffs contacted Kim Mayberry and requested her opinion as to the cause of the stunting and stacked nodes. Initially Mayberry thought it might be Prowl damage. A short time later she and Greg Stapelton, a technical representative for American Cyanamid, returned to inspect the crop, ultimately determining that the damage was not the result of the application of Prowl 3.3 EC herbicide. Plaintiffs contacted Dr. Michael Milam, who also came to the farm and viewed the failing cotton.*fn2 Due to the failure of the cotton to recover, Plaintiffs subsequently destroyed 2,211.7 acres of cotton and replanted the acreage with soybeans. Of the approximately 322.4 acres of cotton not destroyed, 51.0 acres did not receive an application of Prowl 3.3 EC herbicide and yielded approximately 764.9 pounds of lint per acre. The remaining 271.4 acres not destroyed produced approximately 332.4 pounds of lint per acre.

Plaintiffs bring this suit alleging negligence, breach of express warranty, misrepresentation, breach of implied warranty of merchantability, breach of implied warranty of fitness for particular purpose, and strict liability.

Defendants' Motion for Summary Judgment

Defendants claim they are entitled to summary judgment (DE# 76) in this case. Plaintiffs have filed a response (DE# 91) and Defendants have replied (DE# 97).

Defendants assert the following:*fn3

Plaintiffs lack admissible evidence to support their negligence claims.

Plaintiffs' claims of breach of express warranty, of the implied warranties of merchantability and of fitness for particular purpose should be dismissed as a matter of law because Defendants effectively disclaimed such warranties.

Plaintiffs' claim of breach of express warranty based upon alleged statements contained in the Prowl label should be dismissed as a matter of law, because Plaintiffs cannot establish that Defendants made the specific "affirmation of fact, or promise" in the Prowl label that Plaintiffs allege Defendants breached.

Plaintiffs' claim of misrepresentation should be dismissed as a matter of law because Plaintiffs cannot present evidence that Defendants made false representations of material fact with knowledge that the alleged representations were false and with the intent that Plaintiffs rely on such false representations. Plaintiffs could not have justifiably relied upon such representations because of an express disclaimer contained in the Prowl label.

Plaintiffs' strict liability claim should be dismissed as a matter of law because Plaintiffs cannot present evidence that the product at issue was supplied in a defective condition which rendered it unreasonably dangerous.

Finally, Defendants assert that Plaintiffs' claim for damages in excess of the return of the purchase price of the Prowl allegedly used by Plaintiffs should be dismissed as a matter of law because Defendants effectively limited Plaintiffs' remedies and ...


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