ELR Citation: ELR 20742
No(s). 92-10-CIV-4-H (E.D.N.C. Dec 2, 1994)

The court holds that Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) §24(b) preempts a respiratory technician's and her husband's state-law failure to warn claims against the manufacturer of a sterilizing solution that allegedly caused the technician's health problems, but that FIFRA does not preempt their claims for negligent design, manufacture, or testing. The court first holds that, as private citizens, the plaintiffs do not have a cause of action based on an alleged violation of the Occupational Safety and Health (OSH) Act standard for material safety data (MSD) sheets. The court also holds that violations of the OSH Act's standards on MSD sheets and labeling requirements do not establish a state-law cause of action for negligent failure to warn. The court further holds that the MSD sheet accompanying the disinfectant is within FIFRA §2(p)(2)(A)'s definition of "label." The court therefore concludes that plaintiffs' failure to warn claim is preempted and grants summary judgment for the manufacturer on this claim. The court next holds that there is enough evidence to support plaintiffs' claims of negligent design, manufacture, and testing, and plaintiffs' fraudulent misrepresentation claims. Summary judgment would be inappropriate, because a genuine issue of fact exists. The court approves and adopts the magistrate's recommendation and memorandum as its own. Finally, the court notes that remaining before it for disposition by trial or otherwise are plaintiffs' claims for negligent design, testing, and manufacture; negligent failure to comply with FIFRA's notification provision; fraudulent concealment and/or misrepresentation; and plaintiff husband's derivative claim for loss of consortium.

Counsel for Plaintiffs
John A. Jones
Michaels, Jones, Martin & Parris
4000 Westchase Blvd., Raleigh NC 27607
(919) 821-0005

Counsel for Defendant
John M. Martin
Ward & Smith
120 W. Fire Tower Rd., P.O. Box 8088, Greenville NC 27835
(919) 355-3030