Opinion
March 14, 1996
Appeal from the Supreme Court, Bronx County (Luis Gonzalez, J.).
This is an action to recover for personal injuries allegedly suffered as a result of the inhalation of toxic fumes that arose from the use of a janitorial product bottled and labeled by defendant Canberra and shipped to defendant Crystal for distribution with the Crystal label.
The IAS Court properly determined that plaintiff's causes of action predicated on the inadequacy of the product label were preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA; 7 U.S.C. § 136 et seq.) and the regulations promulgated thereunder ( see, June v Laris, 205 A.D.2d 166, lv denied 85 N.Y.2d 955; Warner v American Fluoride Corp., 204 A.D.2d 1).
We reject plaintiffs' argument that defendants should be estopped from asserting the preemption defense because the label ultimately affixed to the product was different from the one approved by the Federal regulatory agency ( see, Papas v Upjohn Co., 926 F.2d 1019, 1026, n 8, cert granted and judgment vacated on other grounds sub nom. Papas v Zoecon Corp., 505 U.S. 1215; Kemp v Pfizer, Inc., 835 F. Supp. 1015, 1022; Reutzel v Spartan Chem. Co., 903 F. Supp. 1272, 1283-1284; but see, Hurley v Lederle Labs. Div., 863 F.2d 1173, 1179-1180; Roberson v duPont de Nemours Co., 863 F. Supp. 929, 932-933). In any case, the undisputed evidence shows that any variations in the label used by Canberra for distribution under Crystal's name which were required to be submitted to the agency in a "supplemental registration" were properly submitted. Moreover, we find that the IAS Court properly rejected plaintiff's argument that FIFRA does not apply because of the failure to submit to the agency the "material safety data sheet" prepared for the product, and her argument that a failure to warn cause of action based on the information, or lack thereof, contained in the data sheet is not preempted ( see, Taylor AG Indus. v Pure-Gro, 54 F.3d 555, 561).
The amended causes of action setting forth nonlabel-related design defect claims were properly allowed, as such claims remain viable under FIFRA ( see, Wallace v Parks Corp., 212 A.D.2d 132, 137-138), and the expert opinion submitted in support of their merit had a sufficient basis in the record and was therefore not conclusory ( cf., e.g., Putrino v Buffalo Athletic Club, 82 N.Y.2d 779; Wright v New York City Hous. Auth., 208 A.D.2d 327, 331). We note that defendants' claim of prejudice with respect to this proposed amendment is unsubstantiated, since any information necessary for the defense of the newly-asserted claims would be entirely in defendants' possession.
While claims based on express and implied warranties that are voluntarily assumed in addition to FIFRA requirements are not preempted ( Cipollone v Liggett Group, 505 U.S. 504; Welchert v American Cyanamid, 59 F.3d 69, 72-73; Taylor AG Indus. v Pure-Gro, 54 F.3d, supra, at 563; Higgins v Monsanto Co., 862 F. Supp. 751, 761), the IAS Court erred in allowing the claim for breach of express warranty to go forward in this case. Even if we were to find that defendants had warranted that the product was "mild," there was no evidence of any reliance on that representation.
Concur — Murphy, P.J., Sullivan, Ellerin, Ross and Mazzarelli, JJ.