Opinion
CAUSE NO. IP 02-0389-C-M/S
November 5, 2003
ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendant's, Southeast Wood Treating, Inc. ("Southeast Wood"), Supplemental Motion for Summary Judgment, on the claims of Plaintiffs, Andrew, Andrea, Sidney, and Bailey Hunt ("Hunt" or "Plaintiffs"). Defendant Universal Forest Products ("Universal") joins a portion of Southeast Wood's Supplemental Motion for Summary Judgment, and filed a separate Motion for Summary Judgment, which the Court will also address. Plaintiffs filed this products liability action in Indiana's Madison County Circuit Court. Following a timely motion by Southeast Wood and the other Defendants, the case was removed to this Court on the basis of diversity. Southeast Wood and Universal then filed the instant motions, arguing that they are entitled to summary judgment on all of Plaintiffs' claims. The parties have fully briefed their arguments, and the motion is now ripe for ruling.
I. FACTUAL AND PROCEDURAL BACKGROUND
The instant suit centers on treated wood used for a deck at a residence (the "Residence") now owned by Plaintiffs Andrew and Andrea Hunt Comp. ¶¶ 3-17. Gary Hunt, the father of Andrew Hunt, constructed a wood deck at the Residence in 1986. Id. ¶ 3. At the time the deck was constructed, Gary Hunt owned the Residence. Id. ¶ 4. Gary Hunt purchased the treated wood used to construct the deck from Defendant Furrow Building Materials ("Furrow") in Anderson, Indiana. Id. ¶ 5. Leftover wood was used as flooring in a storage barn. Id. ¶ 6.At some point prior to being sold to Furrow, the wood was chemically treated with chromium copper arsenate ("CCA"), a pesticide registered with the United States Environmental Protection Agency ("EPA"). CCA waterproofs the lumber, and protects it from damage due to infestation of wood-boring insects.
Gary Hunt made a second purchase of treated wood from Furrow in either 1996 or 1998. Id. ¶ 7. See also Southeast Wood's Objections Re: Amendment of Admissions. That wood was used to replace hand rails, modify the stairs, and generally improve the look of the deck. Comp. ¶ 7. Leftover wood from the remodeling was kept in the storage barn for future repairs. Id. ¶ 8.
Plaintiffs Andrew and Andrea Hunt subsequently purchased the Residence from Gary Hunt. In the fall of 2000, Andrew and Andrea Hunt decided to tear down the deck because they no longer wanted to use the swimming pool for which the deck was constructed. Id. ¶ 11. The wood was burned in the Hunt family's backyard in a burn barrel. Id. ¶ 12. The Hunts used the ashes from the burn barrel as "fertilizer" in the family garden. Id.
After the wood was burned and the ashes were scattered in the garden, Andrea Hunt learned about the dangers resulting from exposure to CCA-treated wood. Id. ¶ 13. Tests performed on the ashes and soil showed elevated levels of arsenic. Id. Based on these facts, Plaintiffs filed their complaint in Madison County Circuit Court.
Plaintiffs sued the following six defendants in their complaint: American Wood Preservers Institute ("AWPF'), Furrow, Southeast Wood, Universal, and Unknown Chemical Manufacturers Numbers One and Two. This Court's October 9, 2002, Order dismissed AWPI, a trade organization, from the suit. Doc. No. 82. Furrow, the retailer from which Gary Hunt bought the treated wood, has also been dismissed from the suit. Southeast Wood and Universal are wholesalers that allegedly sold the wood at issue to Furrow. Southeast Wood and Universal purchased the CCA from Unknown Chemical Manufacturer One and Two, respectively.
The Court's July 30, 2002, Order dismissed Plaintiffs' medical monitoring claim, and Plaintiffs have stipulated that they have no claim for fraud. Doc. No. 53. Plaintiffs' only remaining claim is a property damage claim against Southeast Wood, Universal, and the Unknown Chemical Manufacturers based on theories of strict liability failure to warn, negligent failure to warn, and breach of implied warranty.
II. SUMMARY JUDGMENT STANDARD
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). See also United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith 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 a judgment as a matter of law.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." FED. R CIV. P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). It is not the duty of the Court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which she relies. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. See Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, the Court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. See Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment See Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to [its] case, one on which [it] would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
III. DISCUSSION
Southeast Wood makes a series of arguments in support of its Supplemental Motion for Summary Judgment. Southeast Wood contends that all of Plaintiffs' claims are expressly pre-empted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136(a), et seq. Southeast Wood further contends that even if the claims are not pre-empted, Plaintiffs have failed to state a claim under the Indiana Product Liability Act ("IPLA"), which governs all of Plaintiffs' claims. See IND. CODE § 34-20-1-1 et seq. In support of this contention, Southeast Wood argues that a manufacturer's liability does not extend to dismantling and demolition of its product because those uses are not foreseeable uses of its product. Southeast Wood also asserts that the IPLA's ten-year statute of repose bars all claims related to any wood purchased prior to 1992. In addition, Southeast Wood contends that Plaintiffs have no evidence that it failed to exercise reasonable care, and that Plaintiffs have no way of establishing how much, if any, of the wood at issue was treated by Southeast Wood because the evidence was destroyed. Finally, Southeast Wood maintains that Plaintiffs have no evidence of causation. In response, Plaintiffs argue that their claims are not pre-empted by FIFRA, and assert that they have enough evidence to survive summary judgment on each of their claims. Each argument will be addressed in turn.
Universal joins in Southeast Wood's motion on the pre-emption issue.
A. FIFRA AND PRE-EMPTION 1. FIFRA
When FIFRA was first adopted in 1947, it "was primarily a licensing and labeling statute." Ruckelshaus v. Monsanto Co., 467 U.S. 988, 990, 104 S.Ct. 2862, 2866 (1984). However, Congress amended FIFRA in 1972, "transform[ing] FIFRA from a labeling law into a comprehensive regulatory statute." Id. at 2867. "As amended, FIFRA regulated the use, as well as the sale and labeling, of pesticides; regulated pesticides produced and sold in both intrastate and interstate commerce; provided for review, cancellation, and suspension of registration; and gave EPA greater enforcement authority." Id.
FIFRA prohibits the sale or distribution of pesticides that are not registered with the EPA. 7 U.S.C. § 136a(a). If a person or a company wishes to register a pesticide, an extensive application must be filed with the EPA Administrator. Id. § 136a(c). Among other things, applicants are required to submit a copy of the labeling of the pesticide and a full description of the research and test data regarding the pesticide. Id. After reviewing an application, the EPA Administrator may approve the application and register the pesticide, deny the application and give the applicant 30 days to correct the problems, or conditionally register the pesticide. Id. The EPA Administrator also has the power to cancel or suspend a previously registered pesticide. Id. § 136d.
When deciding whether to register a pesticide, the EPA must consider whether the pesticide at issue "will perform its intended function without unreasonable adverse effects on the environment." 7 U.S.C. § 136(a)(c)(5)(C). Congress recognized that this analysis required a careful balancing by the EPA:
While appropriate pesticides properly used are essential to man and his environment, many constitute poisons too dangerous to be used for any purpose. Others are dangerous unless used extremely carefully . . . Pesticides therefore have important environmental effects both beneficial and deleterious. Their wise control based on a careful balancing of benefit versus risk to determine what is best for man is essential.
S. REP. No. 92-838, reprinted in 1972 U.S.C.C.A.N. at 3996.
Section 136v of FIFRA delineates the extent to which states may regulate pesticides: § 136v. Authority of States
(a) In general
A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.
(b) Uniformity
Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.
(c) Additional uses
(1)A State may provide registration for additional uses of federally registered pesticides formulated for distribution and use within that State to meet special local needs in accord with the purposes of this subchapter and if registration for such use has not previously been denied, disapproved, or canceled by the Administrator. Such registration shall be deemed registration under section 136a of this title for all purposes of this subchapter, but shall authorize distribution and use only within such State.7 U.S.C. § 136v.
2. The Doctrine of Federal Pre-emption
The Supremacy Clause of the Constitution declares that:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . .
U.S. CONST., art. VI, cI. 2. Due to this language in the Supremacy Clause, it is well-established that "state law that conflicts with federal law is `without effect.'" Cipollone v. Liggett Group, Inc., et al, 505 U.S. 504, 516, 112 S.Ct. 2608, 2617 (1992) (citing Maryland V. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128 (1981)). See also Shaw v. Dow Brands, Inc., 994 F.2d 364, 369 (7th Cir. 1993). "The purpose of Congress is the ultimate touchstone" of pre-emption analysis. Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1190 (1978) (citation omitted). Congressional purpose or intent is expressed in several different ways:
Congress' intent may be explicitly stated in the statute's language or implicitly contained in its structure and purpose . . . In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law, or if federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it.Cipollone, 505 U.S. at 517 (citations omitted).
The Supreme Court issued a landmark pre-emption opinion in 1992 in a case involving cigarette labeling and advertising. See Cipollone, 505 U.S. at 504. In Cipollone, the plaintiffs, a smoker who died of lung cancer and her spouse, brought a number of state law claims against the defendant cigarette manufacturers. See id. at 509. The defendants argued that the plaintiffs' claims were pre-empted by the Federal Cigarette Labeling and Advertising Act of 1965 ("1965 Act") and the Public Health Cigarette Smoking Act of 1969 ("1969 Act"). See id. at 511. The pre-emption language in the 1965 Act is relatively narrow: "No statement relating to smoking and health shall be required in the advertising of [properly labeled] cigarettes." See id. at 515. Based on this language, the Court concluded that the 1965 Act barred state laws that required additional warnings, but did not preclude state law damages actions. See id. at 519.
The Court, however, reached a different conclusion with regard to the pre-emptive effect of the 1969 Act. The pre-emption clause of the 1969 Act provides:
No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.
1969 Act, § 5(V). Comparing the language in the 1965 and 1969 Acts, the Court observed:
Compared to its predecessor in the 1965 Act, the plain language of the pre-emption provision in the 1969 Act is much broader. First, the later Act bars not simply "statement[s]" but rather "requirement[s] or prohibition[s]. . . imposed under State law." Second, the later Act reaches beyond statements "in the advertising" to obligations "with respect to the advertising or promotion" of cigarettes.Cipollone, 505 U.S. at 521. Rejecting the plaintiffs' arguments that the "requirement[s]" language in the 1969 Act only pre-empted state statutes that imposed additional requirements on cigarette manufacturers, the Court held that the 1969 Act expressly trumped both positive enactments and common-law damages claims that effectively imposed requirements on manufacturers that had already labeled their cigarette packages and advertising in accordance with federal regulations. See id. at 522.
Turning then to the specific causes of action at issue in the case, the Court defined its central inquiry: "we ask whether the legal duty that is the predicate of the common-law damages action constitutes a `requirement or prohibition based on smoking and health . . . imposed under State law with respect to . . . advertising and promotion'. . ." Id. at 525. The Court found that the plaintiffs' failure-to-warn claim was barred because the claim required a showing that the defendants' advertising should have included additional warnings. See id. at 525. A breach of express warranty claim was not barred, however, because "the `requirements' imposed by an express warranty claim are not `imposed under State law,' but rather imposed by the warrantor." Id. at 526 (emphasis in original). The 1969 Act did not pre-empt a fraudulent misrepresentation claim or a conspiracy to misrepresent material facts claim because those claims emanated from "a state-law duty not to make false statements of material fact or to conceal such facts." Id. at 528-29.
The analysis and holding of the Supreme Court in Cipollone apply with equal force in the FIFRA context. Prior to Cipollone, courts split over whether FIFRA's pre-emption clause barred failure-to-warn claims. See Papas v. Upjohn Co., 926 F.2d 1019 (11th Cir. 1991) (concluding that FIFRA impliedly pre-empted state failure-to-warn claims); Ferebee v. Chevron Chem. Co., 736 F.2d 1529 (D.C. Cir. 1984) (concluding that state failure-to-warn claim was not pre-empted by FIFRA). See also DerGazarian v. Dow Chem. Co., 836 F. Supp. 1429 (W.D. Ark. 1993) (discussing the FIFRA pre-emption case law). In the wake of Cipollone, the overwhelming majority of courts, including the Seventh Circuit, have held that failure-to-warn claims challenging warnings on FIFRA regulated products are preempted by FIFRA. See Shaw, 994 F.2d at 370-71. See also Kuiper v. Am. Cyanamid Co., 131 F.3d 656, 661-62 (7th Cir. 1997) (collecting cases from other circuits). The Seventh Circuit reasoned:
[W]e can discern no significant distinction at all — FIFRA says that "[s]uch State shall not impose . . . any requirements for labeling or packaging in addition to or different from those required. . .," while the cigarette law says "[n]o requirement[s] or prohibition[s]. . . imposed under State law" shall be permitted. Both seem equally emphatic: "[n]o requirements or prohibitions" is just another way of saying a "[s]tate shall not impose . . . any requirements." Not even the most dedicated hair-splitter could distinguish these statements. If common law actions cannot survive under the 1969 cigarette law, then common law actions for labeling and packaging defects cannot survive under FIFRA.Shaw, 994 F.2d at 371. By reserving exclusive jurisdiction over the labeling and packaging of pesticides, Congress ensured some degree of interstate uniformity in the area. See id. However, while states may not add requirements regarding pesticide labeling and packaging, FIFRA permits state and local government regulation of pesticide use. See Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 616, 111 S.Ct. 2476, 2487 (1991) (holding that local ordinance requiring permit for certain applications of pesticides to private lands was not pre-empted by FIFRA).
3. Does FIFRA Pre-empt Plaintiffs' Claims?
Plaintiffs assert the following claims against the Defendants: (1) failure to warn based on strict liability; (2) negligent failure to warn; and (3) breach of implied warranty of fitness. The central issue before the Court is: whether the legal duty that is the predicate of the Plaintiffs' common-law damages claims constitutes a "requirement for labeling or packaging in addition to or different from those required [by FIFRA]." 7 U.S.C. § 136v(a). See also Cipollone, 505 U.S. at 525. In other words, if any of Plaintiff's state law claims operates as a de facto imposition of a "requirement" in addition to or different than the FIFRA requirements, then the claim is pre-empted.
a. Failure to Warn
The Court will first consider whether FIFRA pre-empts Plaintiffs' strict liability failure-to-warn claim and the negligent failure-to-warn claim. The parties are before this Court on the basis of diversity jurisdiction, and all agree that Indiana law governs the case. Under Indiana law, a strict liability failure-to-warn claim and a negligent failure-to-warn claim merge into one claim. See Taylor v. Monsanto Co., 150 F.3d 806, 808 (7th Cir. 1998) ("Under Indiana law, there is no doctrinal distinction between the negligent and strict liability failure-to-warn actions.") (citing Natural Gas Odorizing, inc. v. Downs, 685 N.E.2d 155, 163 n. 11 (Ind.App. 1997)). See IND. CODE § 34-20-2-2 ("[I]n an action based on an alleged design defect in the product or based on an alleged failure to provide adequate warnings or instructions regarding the use of the product, the party making the claim must establish that the manufacturer or seller failed to exercise reasonable care under the circumstances in designing the product or in providing warnings or instructions.").
To establish their failure-to-warn claim, Plaintiffs must prove, inter alia, that the Defendants failed to adequately warn them of the dangers associated with the use of CCA. See, e.g., Jarrell v. Monsanto Co., 528 N.E.2d 1158, 1161-62 (Ind.App. 1988). CCA is an EPA-registered pesticide, and Plaintiffs do not offer any evidence that the pesticide was not labeled in conformity with EPA requirements. As stated earlier, the Seventh Circuit, along with almost every other Circuit that has addressed the issue, has held that state law failure-to-warn claims challenging the warnings on EPA-registered pesticides are pre-empted by FIFRA. See Kuiper, 131 F.3d at 661-62; Shaw, 994 F.2d at 371. See also Arkansas — Platte Gulf P'ship v. Van Waters Rogers, Inc., 981 F.2d 1177, 1179 (10th Cir. 1993) ("[A] state common law duty to warn is nothing more than a duty to label a product to provide information. In that sense, a common law duty is no less a `requirement' in the preemption scheme than a state statute imposing the same burden.").
Plaintiffs contend that FIFRA is irrelevant to their claims. Plaintiffs assert: "Southeast knows FIFRA does not apply to this case, yet it asserts the argument in an attempt to have this Court dismiss plaintiffs' claims. Southeast's unsupported assertion is frivolous." PL's Opposition to Southeast Wood at 8. According to Plaintiffs, none of the above-cited FIFRA pre-emption authority is relevant because they are challenging the warnings (or the lack thereof) on the treated wood itself, not the EPA-approved warnings on the CCA tanker trucks or other CCA receptacles.
The Court finds the Plaintiffs' argument to be unpersuasive. The EPA specifically considered implementing a program that involved warning consumers about the dangers of CCA-treated wood products. In fact, the EPA issued a Notice of intent to Cancel the FIFRA registration for CCA unless manufacturers and sellers made certain labeling modifications. The central modification would have required a mandatory Consumer Awareness Program ("CAP") involving the distribution of information sheets to purchasers of treated wood:
The focus of [the CAP] is a Consumer information Sheet (CIS), which will distributed to purchasers of pressure-treated wood products at the time of sale or delivery . . . The obligation to implement an adequate Consumer Awareness Program is on the users of the wood preservatives who pressure treated wood commercially.49 Fed. Reg. 286666, 28682 (July 13, 1984). However, the EPA subsequently decided to eliminate the mandatory CAP:
Another change that the Agency has made to the requirements of the July 13 Notice is the elimination of the mandatory Consumer Awareness Program from the labeling of wood preservative pesticide products. The Agency is satisfied that an alternative mechanism, namely a voluntary Consumer Awareness Program undertaken by industry, is likely to meet the Agency's goal of providing users of pressure-treated wood with proper use and precautionary information.51 Fed. Reg. 1334, 1337 (January 10, 1986).
As noted earlier, states may not impose labeling or packaging requirements different from or in addition to the FIFRA requirements with regard to a federally-registered pesticide. With regard to pesticides used on wood, FIFRA, through the EPA, the federal agency charged with administrating the statute, requires labeling on the CCA receptacles and participation in a voluntary Consumer Awareness Program. In addition to these federal requirements, Plaintiffs assert that warning labels should be on the treated wood itself. Allowing Plaintiffs' state failure-to-warn claim to proceed on this theory would effectively hold the Defendants to a different standard than is required by federal law, impose additional requirements for the labeling of CCA products, and compromise the Congressional goal of uniformity in pesticide labeling and packaging requirements. See Papas v. Upjohn Co., 178 F.3d 395, 398 (5th Cir. 1998) ("[I]t is for the EPA Administrator, not a jury, to determine whether labeling and packaging information is complete or inaccurate, and if so what label changes, if any, should be made."). Accordingly, the Court concludes that Plaintiffs' state law failure-to-warn claim is pre-empted by FIFRA.
b. Breach of implied Warranty
Southeast Wood also argues that Plaintiffs' breach of implied warranty claim is pre-empted by FIFRA. Plaintiffs' warranty claim is for breach of an implied warranty of fitness for a particular purpose. Indiana adopted the Uniform Commercial Code's ("UCC") definition of implied warranty for a particular purpose:
26-1-2-315 implied warranty; fitness for particular purpose
Sec. 315. Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is, unless excluded or modified under IC 26-1-2-316, an implied warranty that the goods shall be fit for such purpose.
In Cipollone, the Supreme Court held that a breach of express warranty claim was not pre-empted by the 1969 Cigarette Act, because "the `requirements' imposed by an express warranty claim are not `imposed under State law,' but rather imposed by the warrantor." Id. at 526 (emphasis in original). Applying Cipollone to FIFRA pre-emption cases, lower courts have barred plaintiffs from bringing breach of express warranty claims that depend in part onalleged inadequacies of pesticide labeling and packaging. See, e.g., Welchert v. Am. Cyanamid, inc., 59 F.3d 69, 71-73 (8th Cir. 1995).
However, courts have concluded that implied warranty claims may be pre-empted by FIFRA. The Eleventh Circuit reasoned:
Express warrantors seek competitive advantages by promising buyers that certain factual representations about their goods are true . . . In contrast, implied warranties of merchantability arise by operation of law . . . Although liability for breach of an express warranty maybe viewed as "imposed by the warrantor," Cipollone, 505 U.S. at 526, 112 S.Ct. at 2622, liability for breach of an implied warranty is based on the agreement, imposed by law, to be responsible in the event the thing sold is not in fact fit for the use and purposes intended.Papas v. Upjohn Co., 985 F.2d 516, 519-520 (11th Cir. 1993) (citations omitted) (emphasis in original). Thus, an implied warranty claim, unlike an express warranty claim, is a "requirement" imposed under state law that may be pre-empted.
As a "requirement" imposed under state law, the implied warranty claim is barred to the extent that it rests on allegations of inadequate labeling or packaging. However, it is difficult to determine whether the Plaintiffs' warranty claim is based on allegations of inadequate labeling. Plaintiffs added the implied warranty claim in their Amended Complaint, and did not describe the substance of their evidence in support of the claim. In addition, the parties did not separately address the warranty claim in their pre-emption arguments in the summary judgment briefs. Accordingly, the Court will defer ruling on the pre-emption issue as it relates to the implied warranty claim, and consider whether Defendants are entitled to summary judgment on the claim under Indiana law.
B. INDIANA PRODUCTS LIABILITY ACT 1. Failure to Warn Based on Negligence and Strict Liability
Even if any of Plaintiffs' claims are not pre-empted by FIFRA, the Defendants are entitled to summary judgment on all claims. Two of Plaintiffs' three substantive legal theories — failure to warn based on strict liability and negligent failure to warn — are product liability claims governed by the IPLA. IND. CODE § 34-20-1-1 ("This article governs all [product liability] actions . . . regardless of the substantive legal theory or theories upon which the action is brought").
As Southeast Wood correctly notes, manufacturers can only be held liable for injury or damage caused by "reasonably expectable" use of their products. IND. CODE § 34-20-4-3 ("If an injury results from handling, preparation for use, or consumption that is not reasonably expectable, the seller is not liable under this article."). See also Greubel v. Knappco Corp., 160 F.3d 409, 411 (7th Cir. 1998) ("Under Indiana law, the scope of the duty to warn is cabined by the foreseeable uses of the product . . . A manufacturer cannot be liable for unforeseeable uses of its products nor can it be liable if a product fails to do what it was not intended to do.") (citations omitted).
The IPLA permits actions against both manufacturers and sellers, IND. CODE § 34-20-1-1, and all Defendants in this action fit into one of those categories. IND. CODE § 34-6-2-77, IND. CODE § 34-6-2-136.
The Indiana Supreme Court applied this principle in Wingett v. Teledyne Indus., Inc., 479 N.E.2d 51 (Ind. 1985), overruled on other grounds, Douglass v. Irvin, 549 N.E.2d 368 (Ind. 1990). The plaintiff in Wingett, who was part of a demolition crew at a foundry, was sitting on a section of ductwork and cutting the aluminum hangers that supported it when the section fell to the ground. See id. Seeking to recover for injuries from the fall, the plaintiff' sued the foundry owner, the manufacturer of the ductwork, and the installer of the ductwork for failure to warn based on strict liability. See id. The Indiana Supreme Court rejected his claim:
We cannot agree with appellant's apparent contention that a person who dismantles or demolishes a product be deemed a "user" or "consumer" within the meaning of the statute. IndCode § 33-1-1.5-3(a). Further, there is no authority to support his corollary contention that dismantling or demolishing a product be recognized as an intended use of the product within the scope of products liability law. We hold that a manufacturer's potential liability for products placed in the stream of commerce does not extend to the demolition of the product.Id. at 55-56 (emphasis added). Although foreseeability is usually a question of fact for the jury, the Wingett court held that the demolition of the ductwork was not foreseeable as a matter of law, and summary judgment was entered in favor of the defendants. See id. at 56.
A number of cases from other jurisdictions concur with the Indiana Supreme Court's holding in Wingett. For example, a district court in Virginia dismissed a negligent failure-to-warn claim that was based on injuries sustained during the dismantling of air conditioners:
[T]his Court concludes that the Supreme Court of Virginia would find, as a matter of law, that the destruction of [defendant's] air conditioners for recycling purposes was not a use of the air conditioners that [defendant] should have reasonably foreseen. Dismantling or destroying an air conditioner changes the product and any possible intended use of the product as originally manufactured. Thus, [defendant] had no duty to warn of the possible release of hazardous substances that might arise from this unforeseeable use ofthe product.Richmond, Fredericksburg and Potomac R.R. Co. v. Davis Indus., Inc., 787 F. Supp. 572, 578 (E.D. Va. 1992). See also United States v. Union Corp., 2003 WL 21977097 (E.D. Pa.) (concluding that defendant was not liable for injuries sustained after recycling of its product); Kalik v. Allis-Chalmers Corp., 658 F. Supp. 631, 634-35 (W.D. Pa. 1987) (granting summary judgment to defendants on product liability claims based on injuries sustained during the course of dismantling junk electrical components); Johnson v. Murph Metals, Inc., 562 F. Supp. 246 (N.D. Tex. 1983). The Supreme Court of Florida reached a similar result in a products liability case involving the dismantling of transformers. See High v. Westinghouse Elec. Corp., 610 So.2d 1259, 1262 (Fla. 1993) ("dismantling a product is not an intended use . . . strict liability does not apply.").
Plaintiffs fail to distinguish the above-cited case law. Plaintiffs assert "[t]he argument of Southeast that plaintiffs do not have a claim because they demolished the product is preposterous. This Court can take judicial notice of the fact that ordinary untreated wood is safely burned on a regular basis. Treated wood must never be burned." Pl.'s Opposition to Southeast Wood at 4. Plaintiffs do not cite any authority in support of this argument, and the Court's own research has not uncovered any support for their position. The Court finds Plaintiffs' arguments unpersuasive.
Wingett dictates the result in the instant case. The intended use of the treated wood that Gary Hunt bought from Furrow was the construction of decks and other structures, indeed, Plaintiffs admit in their breach of implied warranty count that the treated wood was an "instrument to be used for constructing decks and other outdoor structures." Amended Comp. ¶ 19. Gary Hunt did, in fact, use the wood to construct and repair a swimming pool deck, and the Plaintiffs do not complain of any injuries or damages from this use of the wood, instead, the claims stem from Hunt's burning, or destruction, of the treated wood at issue. Plaintiffs' destruction of the wood and their post-destruction use of the wood ashes as "fertilizer" for the yard were not reasonably foreseeable uses of the product. Thus, even if Plaintiffs' failure-to-warn claim was not pre-empted by FIFRA, Defendants are entitled to summary judgment on the claim because "a manufacturer's potential liability for products placed in the stream of commerce does not extend to the demolition of the product." Wingett, 479 N.E.2d at 56.
2. Breach of implied Warranty Claim
Plaintiffs Amended Complaint added a breach of implied warranty claim against Southeast Wood, Universal, and the Unknown Chemical Manufacturers. According to Southeast Wood, the implied warranty claim is duplicitous of and subsumed by the strict liability claim. See e.g., Thiele v. Faygo Beverage Inc., 489 N.E.2d 562 (Ind.App. 1986). Universal, on the other hand, argues that the implied warranty claim is barred because Plaintiffs and Universal are not in privity of contract. Plaintiffs do not respond to Southeast Wood's argument. In response to Universal's privity argument, Plaintiffs assert that they are third-party beneficiaries of Universal's implied warranties to Gary Hunt. Each argument will be addressed in turn.
The Court disagrees with Southeast Wood's contention that the warranty claim is subsumed by the strict liability claim. While a breach of implied warranty of merchantability claim sounding in tort is duplicitous of a strict liability claim under the IPLA, see Thiele, 489 N.E.2d at 584, Plaintiffs allege breach of implied warranty of fitness for a particular purpose, a claim sounding in contract:
Defendants . . . impliedly warranted the treated wood was fit for the purpose for which it was designed . . . The treated wood manufactured and sold by defendants was unfit for its particular purpose . . .
Amended Comp. ¶¶ 19-21. IND. CODE § 26-1-2-315. Because the IPLA did not vitiate contract actions under the Uniform Commercial Code, the Court concludes that Plaintiffs properly alleged the strict liability and breach of implied warranty theories as alternative remedies. See, e.g., Hitachi Const. Mach. Co., Ltd. v. Amax Coal Co., 737 N.E.2d 460 (Ind.App. 2000) (concluding that plaintiff's implied warranty claim sounding in contract could proceed despite defendants' arguments that it was subsumed by the IPLA).
However, even if Plaintiffs intended for their implied warranty count to sound in tort, it would be "just another name for strict liability." Corbin v. Coleco Indus., Inc., 748 F.2d 411, 416 (7th Cir. 1984). The Court already has concluded that the strict liability claim fails because Plaintiffs' destruction of the wood was not a reasonably foreseeable use.
However, as Universal argues, a plaintiff bringing a breach of implied warranty of fitness for a particular purpose claim under IND. CODE § 26-1-2-315 must show privity of contract. See, e.g., BB Paint Corp. v. Shrock Mfg., Inc., 568 N.E.2d 1017 (Ind, App. 1991). Generally speaking, privity of contract extends only to the contract of sale. See Candlelight Homes, inc. v. Zornes, 414 N.E.2d 980, 982 (Ind, App. 1981). Thus, unless an exception applies, manufacturers or wholesalers who sell to retailers are not liable for warranties the retailer makes to the ultimate buyer. See, e.g., Corbin v. Coleco Indus., Inc., 748 F.2d 411, 414-15 (7th Cir. 1984) (applying Indiana law) (affirming summary judgment in favor of swimming pool manufacturer on breach of implied warranty claim due to lack of privity between manufacturer and plaintiff buyer). See also Zepik v. Ceeco Pool and Supply, Inc., 637 F. Supp. 444 (N.D. Ind 1986) (applying Indiana law) (entering summary judgment in favor of manufacturer on implied warranty claim because manufacturer was not in privity of contract with plaintiff); Candlelight Homes, 414 N.E.2d at 982 (concluding that manufacturer was not liable to buyer on warranty claim due to lack of privity).
Gary Hunt, who is not a plaintiff in this lawsuit, purchased the treated wood from Furrow to build and repair the deck at his Residence. Gary Hunt sold the Residence to his son and daughter-in-law, and they subsequently brought this suit against the seller Furrow, the wholesalers Universal and Southeast Wood, and the Chemical Manufacturers. Thus, Gary Hunt is in privity of contract with Furrow, but neither he, nor any of the Plaintiffs, is in privity with Universal, Southeast Wood or the Chemical Manufacturers. Plaintiffs have not offered any evidence that Universal or Southeast Wood participated in the sale of wood to Gary Hunt. See Candlelight Homes, 414 N.E.2d at 982 (noting that a manufacturer may be liable for breach of implied warranty if it participated significantly in sale to buyer).
Plaintiffs' third-party beneficiary argument does not save their warranty claim. According to Plaintiffs, Universal's privity argument fails because Andrew Hunt was a third-party beneficiary of the implied warranties Defendants made to his father when the father purchased the wood. While Plaintiffs are correct that § 26-1-2-318 of the Indiana Code extends a seller's express and implied warranties to third-party beneficiaries such as family members and guests that can be reasonably expected to use a product, this argument is not relevant with regard to Universal, Southeast Wood, or the Chemical Manufacturers. Gary Hunt was only in privity with Furrow. Thus, Andrew Hunt may have a third-party beneficiary argument with regard to a claim against Furrow, but not against the wholesalers and manufacturers because those entities never made any warranties to his father. Thus, even if it is not pre-empted by FIFRA, Plaintiffs' implied warranty claim fails against Universal, Southeast Wood, and the Unknown Chemical Manufacturers due to lack of privity.
Plaintiffs dismissed Furrow from this suit.
IV. CONCLUSION
Plaintiffs' failure-to-warn claim is pre-empted by FIFRA. The pre-emption holding applies to all Defendants in this suit. Plaintiffs' breach of implied warranty claim is pre-empted to the extent that it rests on inadequate labeling of CCA. However, even if Plaintiffs' implied warranty claim does not rest on allegations of inadequate labeling, it fails against Southeast Wood, Universal, and the Unknown Chemical Manufacturers under Indiana law due to lack of privity. Thus, the Court GRANTS summary judgment in favor of Southeast Wood, Universal, and the Unknown Chemical Manufacturers on all claims.
The Court's resolution of these motions (Southeast Wood's Supplemental Motion for Summary Judgment and Universal's Motion for Summary Judgment) moots the following pending motions: Southeast Wood's Motion for Summary Judgment (Doc. No. 99); Southeast Wood's Motion to Strike (Doc. No. 113); Southeast Wood's Motion to Exclude Expert Testimony of Hayics (Doc. No. 126); Southeast Wood's Objections to Magistrate's Entry (Doc. No. 135); and Universal's Motion to Quash Discovery (Doc. No. 101).
IT IS SO ORDERED.