ELR Citation: ELR 20212
No(s). s. 92-3810, 93-2660 (E.D. Pa. Jul 28, 1994)

The court holds that §24(b) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) expressly preempts a nurse's state-law claims of inadequate labeling, failure to warn, and breach of implied warranty against the manufacturers of a disinfectant that allegedly caused the nurse's respiratory illness. The court first holds that the nurse's strict liability claim is limited to a failure-to-warn theory, because the record is completely devoid of any evidence that the manufacturers' products contained manufacturing or design defects. The court next holds that FIFRA §24(b) expressly preempts the nurse's labeling and warning claims in light of the U.S. Supreme Court's decision in Cipollone v. Liggett Group, Inc., 499 U.S. 935 (1991), which held that the Federal Cigarette Labeling and Advertising Act preempted state-law claims for failure to warn, inadequate labeling, and breach of implied warranty. The court finds no functional difference between the language of §24(b), which prohibits states from imposing labeling or packaging requirements that differ from or add to FIFRA's requirements, and the provision at issue in Cipollone, which prohibited any requirement or prohibition imposed under state law. The court refuses to analyze the importance of any distinction between FIFRA's and the Cigarette Act's labeling schemes, because §24(b)'s plain language expressly preempts the nurse's failure-to-warn claims. Thus, the court holds that §24(b) expressly preempts the nurse's state-law claims to the extent they are based on allegedly inadequate labeling or packaging. The court holds that §24(b) also preempts the nurse's claims that the manufacturers failed to provide adequate warnings, because those claims necessarily challenge the adequacy of the warnings provided on the products' labeling and packaging. The court also holds that §24(b) preempts the nurse's breach of warranty claim insofar as that claim rests on a warranty implied under law.

Next, the court assumes without deciding that FIFRA preemption is an affirmative defense and that failure to plead preemption can constitute waiver of the defense. Plaintiffs neither identified any prejudice nor suggested that the manufacturers exhibited undue delay, bad faith, or some other dilatory motive for the failure to plead the defense or amend their answers promptly. The court holds that although two manufacturers failed to plead preemption, they have not waived the defense and are entitled under Fed. R. Civ. P. 15 to amend their answers to respond to the waiver issue.

The court next grants summary judgment for the manufacturers on the nurse's negligent design and manufacturing claims, because she failed to identify any evidence on the manufacturers' part. Turning to the nurse's breach of express warranty claim, the court finds that the manufacturers' labels contain no language of promise, description, or affirmation of fact that conceivably could constitute an express warranty of product safety. The court holds that two of the manufacturers' material safety data sheets (MSD sheets) similarly lack any language that could constitute an express warranty. Moreover, these two manufacturers inserted explicit disclaimers of warranty in their respective MSD sheets. The court holds that language in the third manufacturer's MSD sheet, which does not contain a disclaimer but merely states that no chronic health hazards are known from currently available information, does not constitute an express warranty as to the safety of its product. The isolated representation does not, without more, suggest that this manufacturer intended to warrant that its product would conform to the representation. And, because the MSD sheet is a required disclosure under federal law, any representations made in the manufacture's MSD sheet were not directed at consumers in order to induce product purchases.

Finally, because manufacturers are entitled to summary judgment on all of the nurse's claims, the court dismisses the husband's claim for loss of consortium.

Counsel for Plaintiffs
Stuart J. Agins
Bernstein, Silver & Gardner
1600 Market St., Ste. 2500, Philadelphia PA 19103
(215) 864-9400

Counsel for Defendants
Robert A. Limbacher
Dechert, Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch St., Philadelphia PA 19103
(215) 994-4000