The opinion of the court was delivered by: Mihm, Chief Judge.
This matter comes before the Court on Defendants' Motion to
Dismiss  and Motion for Summary Judgment . Pursuant to
Local Rule 1.4, the Motion to Dismiss was referred to Magistrate
Judge Robert J. Kauffman. While reviewing the motion, Magistrate
Kauffman determined that due to the existence of the affirmative
defense of federal preemption, the Motion to Dismiss should not
be ruled upon until the parties had briefed the preemption issue.
(Order dated October 12, 1994). The Defendants subsequently filed
their Motion for Summary Judgment, which relies solely on the
issue of federal preemption in support of the motion. This Court
heard oral argument on the motion on February 24, 1995 and gave
the parties leave to file proposed findings of fact and
conclusions of law. (Transcript of 2/24/95 hrg. at 22-23).
Defendants timely filed their Proposed Findings of Fact and
Conclusions of Law . Plaintiff has apparently elected not to
file a proposed pleading. The Court has reviewed the pleadings,
affidavits and other materials submitted to the Court in support
of and in opposition to the Motion for Summary Judgment and, for
the reasons set forth herein, GRANTS the Motion for Summary
Judgment  and finds the Motion to Dismiss DENIED  as moot.
Plaintiff, Lynnbrook Farms, is a general partnership
organized under the laws of Illinois. (Amended Complaint at 1).
Defendant Norden Laboratories merged into Smithkline Beecham on
or about January 1, 1992. (Answer to Amended Complaint at 3).
Prior to the merger, Norden Laboratories existed as a Delaware
corporation. (Amended Complaint at 2). Defendant Smithkline
Beecham is a corporation organized under the laws of
Pennsylvania. Id. at 1-2. The Defendants will hereafter be
referred to as "SBC." The parties have stipulated that the amount
in controversy is in excess of $50,000. (Answer to Amended
Complaint at 2). This Court has jurisdiction over this matter
pursuant to 28 U.S.C. § 1332.
The Amended Complaint, filed June 6, 1994, alleges that
Defendants manufacture animal vaccines for ultimate sale to the
public in the State of Illinois. (Amended Complaint at 3).
Defendants deny that their animal vaccines were sold to various
firms for distribution to the public, answering instead that the
"vaccines in question were subject to use, evaluation and
administration by veterinary physicians under the learned
intermediary doctrine." (Answer to Amended Complaint at 4).
The vaccines at issue in this suit are *CattleMaster4 and
Ultrabac7/Somubac. (Amended Complaint at 3, 11). The United
States Department of Agriculture ("USDA") has licensed each of
the vaccines, *CattleMaster4 under USDA License No. 1187.21 and
Ultrabac7/Somubac under USDA License No. 4723.00. (Affidavit of
Cyril G. Gay, D.V.M., Ph.D. at ¶¶ 3-9). Plaintiff contends that
it purchased these vaccines from the Miller Company in Morton,
Illinois. (Amended Complaint at 3, 11). According to the Amended
Complaint, Plaintiff intended to use these vaccines on its cattle
to prevent debilitating disease and/or mortal infection. Id. at
3, 12. Plaintiff alleges that notwithstanding its use of the
vaccines, some of its cattle contracted debilitating disease and
died. Id. at 4, 12-13. Other cattle had to be disposed of at a
loss due to the extent of debilitations. Id. The Amended
Complaint asserts that Plaintiff took all recommended
precautions, including refrigerating the vaccines, and despite
these actions the vaccines did not perform as they were intended.
Id. at 4, 12. Plaintiff further asserts that these vaccines
proximately caused the debilitation and death of its cattle. Id.
The Amended Complaint presents eight counts. In Counts I and
VII, Plaintiff asserts that SBC is liable, under a strict
liability theory, for the defective, dangerous, and inefficacious
nature of *CattleMaster 4 and Ultrabac7/Somubac, respectively.
Counts II and III contain allegations that SBC breached implied
warranties of fitness for a particular purpose and
merchantability under the Illinois Uniform Commercial Code, 810
ILCS 5/1-101, et seq. Count IV states a claim for fraudulent
misrepresentation. Count V alleges that SBC violated the Illinois
Consumer Fraud and Deceptive Business Practices Act, 815 ILCS
505/1, et seq., through the advertising and promotion of
*CattleMaster4. In Counts VI and VII, Plaintiff contends that the
*CattleMaster4 and Somubac vaccines were defective in that the
product labeling on the vaccines failed to warn against certain
alleged dangers arising out of their use.
Summary judgment will be granted "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 judgment as a matter of law." Fed.R.Civ.P. 56(c).
Once the moving party has borne its burden of identifying those
portions of the pleadings, answers to interrogatories, etc., that
demonstrate there is no genuine issue of material fact, the
nonmoving party must come forward with specific facts showing
that there is a genuine issue for trial. Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct.
1348, 1356, 89 L.Ed.2d 538 (1986). Where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial. Id. at 587,
106 S.Ct. at 1356 (citations omitted). When considering a motion
for summary judgment, courts must give the benefit of all
inferences to the party opposing the motion and examine the
record in the light most favorable to that party. United States
v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d
176 (1962); Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038
(7th Cir. 1993).
In this matter, the Court gives the benefit of all inferences
to the Plaintiff, for purposes of the Motion for Summary
Judgment, regarding Plaintiff's allegations that it purchased the
vaccines, *CattleMaster4 and Ultrabac7/Somubac, for use on its
cattle; that it properly utilized these vaccines; and that its
cattle contracted debilitating disease and either died or had to
be disposed of at a loss. All this being true, however, will not
permit the Plaintiff to survive summary judgment if the
Virus-Serum-Toxins Act ("VSTA") preempts Plaintiff's state common
law and statutory claims.*fn1 In the event that this Court finds
VSTA to preempt state law, Plaintiff, for all the injury
sustained by it, will have no remedy at law.
The presumption against preemption, especially where the
state law being usurped is a traditional state police power, is
well established. California v. ARC America Corp., 490 U.S. 93,
100, 109 S.Ct. 1661, 1665, 104 L.Ed.2d 86 (1989); Maryland v.
Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed.2d
576 (1981) ("Consideration under the Supremacy Clause starts with
the basic assumption that Congress did not intend to displace
state law"); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230,
67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947) ("we start with the
assumption that the historic police powers of the States were not
to be superseded by the Federal Act unless that was the clear and
manifest purpose of Congress") (citations omitted). The same
presumption applies when an agency acts to preempt the field.
Hillsborough County, Fla. v. Automated Medical Laboratories,
Inc., 471 U.S. 707, 715, 105 S.Ct. 2371, 2376, 85 L.Ed.2d 714
(1985). In instances where agency preemption is alleged, however,
a "narrow focus on Congress' intent to supersede state law [is]
misdirected," as "[a] preemptive regulation's force does not
depend on express congressional
authority to displace state law." Fidelity Federal Sav. and
Loan Ass'n v. de la Cuesta, 458 U.S. 141, 154, 102 S.Ct. 3014,
3023, 73 L.Ed.2d 664 (1982).
Congress may act to preempt state law in three ways. Express
preemption exists where Congress has legislated in clear and
unequivocal terms, found within the text of the statute, that an
act preempts state law. See, e.g., Cipollone v. Liggett Group,
Inc., ___ U.S. ___, ___ - ___, 112 S.Ct. 2608, 2617-20, 120
L.Ed.2d 407 (1992). Implied preemption may be found (1) where
state law actually conflicts with an act of Congress, or (2)
where federal legislation is so pervasive as to make reasonable
the inference that Congress left no room for the States to
supplement it. Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct.
399, 404, 85 L.Ed. 581 (1941). Finally, state law may be
preempted by federal regulations, Hillsborough, supra, at 713,
105 S.Ct. at 2375, where a federal agency, acting within the
scope of its congressionally delegated authority, acts to preempt
state law. Fidelity Federal Sav. and Loan Ass'n v. de la Cuesta,
458 U.S. 141, 153-54, 102 S.Ct. 3014, 3022-23, 73 L.Ed.2d 664
(1982) (citations omitted); City of New York v. F.C.C.,
486 U.S. 57, 63-64, 108 S.Ct. 1637, 1642, 100 L.Ed.2d 48 (1988) (citing
Louisiana Public Service Com'n v. F.C.C., 476 U.S. 355, 367-71,
106 S.Ct. 1890, 1898-99, 90 L.Ed.2d 369 (1986)).*fn2
In the case at bar, Defendants have eschewed the express and
implied preemption arguments, relying solely upon agency
preemption to support its Motion for Summary Judgment. (Tr. of
2/24/95 Oral Argument at 3-4). Thus, this Court must determine
first whether the agency which regulated cattle vaccines, APHIS,
was acting within its congressionally delegated authority. City
of New York, supra, at 63-64, 108 S.Ct. at 1641-42. Once this
Court finds that APHIS was acting within its grant of authority,
it must determine whether the language APHIS chose in
promulgating its regulations is sufficiently broad to preempt
each of Plaintiff's claims. Id. at 66, 108 S.Ct. at 1643.
Under VSTA, all animal vaccines sold in the United States,
and all establishments at which animal vaccines are produced,
must be licensed by the USDA. 21 U.S.C. § 154 (West Supp. 1994).
Within USDA, licensure of animal vaccines and vaccine-producing
establishments is regulated by the USDA's APHIS. 9 C.F.R. §
101.1, et seq. This Court finds that Congress has delegated broad
authority to the USDA and APHIS to promulgate and enforce "such
rules and regulations as may ...