July 18, 2008
Robert E. Barton, Robert E. Sabido, Cosgrave Vergeer Kester, Portland, Oregon, Thomas D. Allen, Earl W. Gunn, Amber E. Tuggle, Mark R. Johnson, Weinberg Wheeler Hudgins Gunn Dial, Atlanta, Georgia, Attorneys for plaintiff.
William G. Earle, Paul R. Xochihua, Jonathan Henderson, Davis Rothwell Earle Xochihua, Portland, Oregon, Attorneys for defendant.
OPINION AND ORDER
This is an action by Arch Chemicals, Inc. (Arch) against Radiator Specialty Company (RSC), asserting claims for common law indemnity and contribution. Arch seeks recovery of amounts paid in settlement of a lawsuit against Arch brought by members of the Davidson family. Two children in the family were killed, and another child and both parents were seriously injured, after their Chevrolet Suburban caught fire. The Davidsons had placed multiple cans of Gunk Engine Brite (Gunk) manufactured by RSC, and a container of Sock-It, a pool chlorination product manufactured and sold by Arch, in the cargo area of the Suburban.
The Davidsons brought an action against Arch, alleging that the fire and resulting deaths and injuries were caused by the Sock-It pool treatment. Arch defended the action and subsequently entered into a confidential settlement with the Davidsons. The settlement extinguished RSC's liability to the Davidsons.
Arch alleges in this action that RSC knew or should have known that 1) Gunk was highly flammable and combustible; 2) any release and/or discharge of the product could result in combustion, explosion or fire; 3) Gunk's packaging was defective, so as to permit its inadvertent release or discharge; and 4) the warnings and/or instructions on the packages of Gunk failed to adequately warn of unreasonable dangers associated with the product. Complaint ¶¶ 8, 11.
RSC now moves for partial summary judgment on Arch's claim based on failure to warn, asserting that the claim is preempted by federal law under the Federal Hazardous Substances Act, 15 U.S.C. §§ 1261- 1278 (2007) (FHSA).
The FHSA requires warnings on labels for substances deemed hazardous. 15 U.S.C. § 1261. A "hazardous substance" includes, among other things, a substance or a mixture of substances that is toxic, corrosive, an irritant, a strong sensitizer, flammable or combustible, or one that generates pressure through decomposition, heat, or other means, if the substance or mixture can cause significant personal injury or illness as a proximate result of foreseeable use, or the substance is radioactive. See 15 U.S.C. § 1261(f)(1)(A), (C); X-Tra Art v. Consumer Product Safety Commission, 969 F.2d 793, 793 (9th Cir. 1992). The terms "extremely flammable," "flammable," and "combustible," as applied to any substance, liquid, solid, or the content of a self-pressurized container, is defined by regulation. 15 U.S.C. § 1261( l)(1).
A manufacturer violates the FHSA if it "introduces into interstate commerce . . . any misbranded hazardous substance." 15 U.S.C. § 1263(a). A hazardous substance is "misbranded" if its packaging is "in violation of" a regulation issued under the FHSA or if "such substance . . . fails to bear a label — (1) which states conspicuously . . . (E) an affirmative statement of the principal hazard or hazards, such as `Flammable,' `Combustible,' `Vapor Harmful,' . . . or similar wording descriptive of the hazard; [and] (F) precautionary measures describing the action to be followed or avoided. . . ." 15 U.S.C. §§ 1261(p)(1)(E) and (F); 16 C.F.R. § 1500.127 (labels of products with multiple hazards must contain "an affirmative statement of each such hazard" and the "precautionary measures describing the action to be followed or avoided for each such hazard.")
There is no dispute that Gunk, because it is combustible, is deemed "hazardous," and is therefore subject to the FHSA.
A party is entitled to summary judgment if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). A genuine dispute arises "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." State of California v. Campbell, 319 F.3d 1161, 1166 (9th Cir. 2003).
On a motion for summary judgment, the court must view the evidence in the light most favorable to the non-movant and must draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). The court may not make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Ins. Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
A. Motion for partial summary judgment
RSC's motion rests on two arguments: first, that the FHSA preempts a failure to warn claim based on state law; and second, that RSC is entitled to judgment as a matter of law because the label on Gunk satisfied all the requirements of the FHSA.
1. General requirements of the FHSA
The FHSA regulations require detailed specific warning language, as well as the language's location on the product's packaging. See 16 C.F.R. § 1500.121. The FHSA requires that a label include "an affirmative statement of the principal hazard or hazards, such as `Flammable,' `Combustible,' `Vapor Harmful,' `Causes Burns,' `Absorbed through Skin,' or similar wording descriptive of the hazard." 15 U.S.C. § 1261(p)(1)(E). Under the regulations, any article that presents more than one type of hazard must be labeled with an affirmative statement of each such hazard, the precautionary measures for each hazard, instructions for first aid from the ill effects that may result from each such hazard, and directions for handling and storage of articles that require special care because of more than one type of hazard. 16 C.F.R. § 1500.127. The label must contain an affirmative statement of the applicable hazard, and an appropriate "signal" word. "Signal word" means "Danger," (for substances that are extremely flammable) "Warning," or "Caution," (for other hazards), as required by sections 2(p)(1)(C) or (D) of the Act. 15 U.S.C. § 1261(p)(1)(C), (D); 16 C.F.R. § 1500.121(a)(2)(vi), 16 C.F.R. § 1500.3(b)(14). The regulations require that the "signal word and the statement of the principal hazards be blocked together on the principal display panel on the immediate container." 16 C.F.R. § 1500.121[b][ii]; Richards v. Home Depot, Inc., 456 F.3d 76, 79 (2d Cir. 2006). "Principal display panel" means the portion or portions of the surface of the immediate container, and of any outer container or wrapping, which bears the labeling designed to be most prominently displayed or examined under conditions of retail sale. 16 C.F.R. § 1500.121(a)(2)(iv).
2. Preemption by FHSA
The FHSA was enacted in 1960, and the purpose of the law was to "provide nationally uniform requirements for adequate cautionary labeling of packages of hazardous substances which are sold in interstate commerce and are intended or suitable for household use." House Committee on Interstate and Foreign Commerce, Federal Hazardous Substances Labeling Act, H.R. Rep. No. 1861, 86th Cong., 2d Sess. 2 (1960), reprinted in 1960 U.S.C.C.A.N. 2833, 2833. As enacted, the FHSA did not contain a preemption clause. When the FHSA was amended in 1966, Congress recommended a "limited preemption amendment which would encourage and permit states to adopt requirements identical with the federal requirements for substances subject to the Federal Act, and to enforce them to complement Federal enforcement." House Comm. on Interstate and Foreign Commerce, Child Protection Act of 1966, H.R. Rep. No. 2166, 89th Cong., 2d Sess. 3 (1966), reprinted in 1966 U.S.C.C.A.N., 4095, 4096. The 1966 amendments added the following limited preemption provision:
[I]f a hazardous substance or its packaging is subject to a cautionary labeling requirement under section 2(p) or 3(b) [ 15 U.S.C. §§ 1261(p) or 1262(b)] designed to protect against a risk of illness or injury associated with the substance, no State or political subdivision of a State may establish or continue in effect a cautionary labeling requirement applicable to such substance or packaging and designed to protect against the same risk of illness or injury unless such cautionary labeling requirement is identical to the labeling requirement under section 2(p) or 3(b).15 U.S.C. § 1261 note(b)(1)(A) (emphasis added). In Chemical Specialties Mfrs. Ass'n, Inc. v. Allenby, 958 F.2d 941, 945 (9th Cir. 1991), the court held that preemption issues arising under the FHSA were "identical to" those arising under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), despite the difference in the actual preemption language. FIFRA's preemption clause states:
[A] 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.7 U.S.C. § 136v (emphasis added). In Allenby, the court noted that under this language, a state could not require a pesticide manufacturer to change a label from the requirements of FIFRA.Allenby, 958 F.2d at 944. Based on this authority, I construe the phrase "identical to" in the FHSA as analytically the same as prohibiting any labeling requirements "in addition to or different from" for purposes of preemption analysis, and conclude that FHSA precludes a state from requiring labeling that is different from or in addition to FHSA's requirements.
In Riegel v. Medtronic, Inc., ___ U.S. ___, 128 S.Ct. 999 (2008), the Supreme Court interpreted a preemption clause in the Medical Devices Act of 1976, 21 U.S.C. § 360c, amending the Federal Food, Drug and Cosmetic Act (FDCA), 21 U.S.C. § 301 et seq. (MDA), which preempted state requirements "different from, or in addition to," federal statutory requirements. The Court held that in analyzing such preemption clauses, a court must first determine whether the federal government "has established requirements applicable to" a particular product. If so, the court must then determine whether common law claims are based on state requirements with respect to the product that are "different from, or in addition to," the federal requirements.Id. at 1006.
Oregon law provides for a "product liability civil action" against a manufacturer, distributor, seller or lessor of a product for personal injury, death or property damage arising out of a defect in the product, any failure to warn about the product, or any failure to "properly instruct in the use of a product." Or. Rev. Stat. § 30.010. Oregon cases interpreting the statute have held that a product warning is deficient if it is not in a form that "could reasonably be expected to catch the attention of the reasonably prudent person in the circumstances of its use." Benjamin v. Wal-Mart Stores, Inc., 185 Or. App. 444, 454-55 (2002), quoting Anderson v. Klix Chemical, 256 Or. 199, 207 (1970). Neither party has drawn the court's attention to any state law that is different from, or imposes requirements in addition to, those of the FHSA. The FHSA's preemption language does not prevent a state from providing a damages remedy for claims premised on, or "parallel to" the federal requirements. Riegel, 128 S.Ct. at 1011.
Nothing in the general product liability statutes of Oregon provides for labeling requirements specifically, and therefore they do not impose different or additional labeling requirements from those of the FHSA. To the extent Arch wants to try and establish liability under the state law claims for labeling requirements that are different from or in addition to those of the FHSA, such claims are preempted. To the extent Arch brings state law claims that seek to impose liability for the violation of FHSA labeling requirements, such claims are not prohibited, but would only provide an alternate theory for the same damages.
3. Determination that Gunk's label is sufficient as a matter of law to preclude Arch's failure to warn claim
RSC argues that the undisputed facts show the warning label on the Gunk container at issue complied with the FHSA, asserting that the principal hazard for Gunk, as alleged in the complaint, is its propensity to burn, and the words on the label are in full compliance with the requirements of the FHSA with respect to warnings about combustibility.
According to the Manufacturer's Material Safety Data Sheet (MSDS) for Gunk, see Declaration of James Wells, Exhibit B, Gunk is a petroleum product with a flash point of 165 degrees. Under the heading, "Unusual Fire and Explosion Hazards," the MSDS states, "At elevated temperatures containers may vent, rupture or burst, even violently." Id. The Gunk container in this case is an aerosol can. The principal display panel displays the following language:
DANGER: FLAMMABLE. HARMFUL OR FATAL IF SWALLOWED. EYE AND SKIN IRRITANT. CONTENTS UNDER PRESSURE. READ PRECAUTIONS ON BACK PANEL.
The Gunk label contains the signal word "Danger," and the warning, "Flammable," because FHSA regulations require such a designation based on the percentage of petroleum distillates in Gunk and its aerosolized nature. The precautions on the back panel are not completely visible in the photograph of the can attached to the Wells Declaration.
Wells Declaration, Exhibit A. Elsewhere on the back of the can, the labeling advises using Gunk only in a well-ventilated room; not exposing Gunk to heat, sparks, open flame or high temperatures; and not puncturing or incinerating the container.Id.
RSC asserts that this label satisfies all the requirements of the FHSA. Under 16 C.F.R. § 1500.3(b)(14), the signal word "Danger" is to be used on products containing 10% or more by weight of petroleum distillates. Gunk contains more than 10% by weight of petroleum distillates. See Supplemental Declaration of James Wells. The word "Flammable" is required on the label of a self-pressurized container if, when tested by the method described in 16 C.F.R. § 1500.45, the product has a flash point greater than 20 degrees Fahrenheit. When Gunk is so tested, its flash point is greater than 20 degrees Fahrenheit. Supplemental Declaration of James Wells.
Arch counters that discovery has not yet gone far enough to warrant entry of summary judgment against Arch on this claim. Arch cites Nissan Fire Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1105 (9th Cir. 2000) ("[i]n a typical case, in order to carry its initial burden of production by pointing to the absence of evidence to support the nonmoving party's claim or defense, the moving party will have made reasonable efforts,using the normal tools of discovery, to discover whether the nonmoving party has enough evidence to carry its burden of persuasion at trial.") (emphasis added by Arch). Arch argues that with discovery not yet completed, it has not yet had an opportunity to develop evidence of the potential ways in which the Gunk could have caused the fire, and thus identify the principal hazards about which RSC should have warned its users. Arch cites Milanese v. Rust-Oleum Corp., 244 F.3d 104 (2nd Cir. 2001), an action brought against Rust-Oleum by a plaintiff who was severely burned after vapors from the Rust-Oleum were ignited by the flame in an adjacent wood burning stove. The Rust-Oleum can warned users on the back to keep the product away from heat, sparks and flame. After the close of discovery, Rust-Oleum moved for summary judgment on the ground that plaintiff's claims were preempted by the FHSA. Id. at 107. Plaintiff asserted that Rust-Oleum failed to comply with the requirements of the FHSA because the can failed to identify vapor flash fires as a "principal hazard" and failed to list the necessary "precautionary measures" as required by 15 U.S.C. § 1261(p)(1).Id. at 108. The court held that there was a genuine issue of fact on whether the danger of flash fire caused by the vapors was a primary hazard that was distinct from the flammability of the product, thereby requiring a separate warning.
Arch argues that under the Milanese decision, a product can have more than one hazard associated with combustion, and that potential hazards may be revealed in discovery which significantly alter the analysis of a product's warnings under the FHSA. Arch asserts that it must be given the opportunity to determine through discovery whether other dangers associated with Gunk are "principal hazards" that RSC was required to identify on the principal display panel of the container, and whether RSC warned of the necessary "precautionary measures" pertaining to those hazards. Arch contends that because discovery has not been completed in this case, the evidentiary record does not permit the court to conclude, as a matter of law, that the language on Gunk's principal display panel provided the requisite warning of Gunk's principal hazards. Compare Richards v. Home Depot, Inc., 456 F.3d 76 (2d Cir. 2006) (failure to provide adequate warning against hazardous vapors on principal display panel meant product was misbranded under FHSA, so that action was wrongly dismissed as preempted).
By means of an affidavit from counsel, Arch moves under Rule 56(f) of the Federal Rules of Civil Procedure for more time to develop evidence with which to oppose RSC's motion for summary judgment.
I agree with Arch that the current state of the record does not permit the court to rule, as a matter of law, that the warning label on Gunk was adequate to warn against all principal hazards of the product. It is early in the case. At the Rule 16 conference, on December 6, 2007, RSC informed the court of its intention to file an early motion for summary judgment testing preemption as a matter of law, not the adequacy of its warnings under federal law. I therefore grant Arch's Rule 56(f) motion and deny RSC's motion for summary judgment with leave to renew the motion after discovery.
B. Motion to strike Wells Declaration
RSC relies on the Declaration of James Wells as evidentiary support for summary judgment on the failure to warn claim. James Wells states that he was employed by RSC from 1972 until April 2002, during which time he was, among other things, Vice President of Chemical Operations. Wells Declaration ¶ 4. Wells states that he is "familiar with both the chemical composition as well as the packaging of Gunk . . . and its warning language."Id. at ¶ 6. Wells states that he is also "familiar with the Federal Hazardous Substances Act and the regulations promulgated thereunder." Id. at ¶ 7. Wells states his opinion that at all times relevant to this litigation,
the warning language on [RSC]'s packaging for its aerosol cans of [Gunk] fully comply with the Federal Hazardous Substances Act.Id. at ¶ 9.
Arch moves to strike the Wells Declaration, on the ground that it is opinion testimony without adequate foundation. Wells states that he is "familiar with the chemical composition" of Gunk, and familiar with the requirements of the FHSA, but Arch argues that this knowledge is not sufficient to support an expert opinion entitling Arch to summary judgment in its favor on the failure to warn claim.
Given the rulings above, it is not necessary to reach this issue. However, since the issue may recur, I address it now. I disagree with Arch that the Wells Declaration should be stricken in its entirety. Wells is not tendered as an expert and with the exception of the first sentence of paragraph 9, his declaration is factual. The first sentence of paragraph 9 is stricken.
C. Request to deem some facts admitted
In view of the fact that discovery is not complete in this case, and that the court is considering Arch's response to RSC's motion for partial summary judgment as a request made under Rule 56(f) of the Federal Rules of Civil Procedure, RSC's request, contained in its Response to Arch's Concise Statement of Material Fact (CSF), to deem paragraph 3 and a portion of paragraph 4 of its CSF admitted, because Arch has not cited to evidence contradicting those statements, is denied.
D. Motions to compel
RSC has filed motions to compel responses to its Interrogatories 1, 2 and 3. The motion to compel is granted with respect to Interrogatories 1 and 2. The responses to the interrogatories are to be used only for counsel's guidance in preparing the case, and cannot be used to impeach or cross examine witnesses.
The motion to compel is granted with respect to Interrogatory 3, subject to the protective order.
The motion to compel is denied with respect to Requests for Production 9 and 11.
The motion to compel is denied with respect to Requests for Production 5, 6 and 12, with leave to refile the motion.
Arch's request, not docketed as a motion, for a continuance to conduct further discovery is GRANTED.
RSC's motion for partial summary judgment (doc. # 16) that 1) the labeling requirements of FHSA preempt any different or additional state labeling requirements is GRANTED; and 2) that its warnings were adequate as a matter of law is DENIED, with leave to renew the motion after the completion of discovery and before the deadline for dispositive motions.
Arch's motion to strike the Wells Declaration (doc. # 26) is DENIED, except for the first sentence of paragraph 9.
RSC's Motion to Compel (doc. # 35) is GRANTED in part and DENIED in part.
IT IS SO ORDERED.