ELR Citation: ELR 20947
No(s). 94-1821 (4th Cir. Feb 15, 1995)

The court affirms a district court's grant of summary judgment against a nurse who claimed that occupational exposure to a manufacturer's cold sterilizing solution caused her respiratory injuries. The district court held that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempted the nurse's state tort-law claims. In a footnote, the court first holds that FIFRA preempts the nurse's breach of implied warranty of merchantability claim because the claim is based on the product's labeling and packaging, which the U.S. Environmental Protection Agency (EPA) has approved. After reviewing its holdings in Worm v. American Cyanamid Co., 22 ELR 21191 (1992), and Worm v. American Cyanamid Co., 24 ELR 20120 (1993), the court notes that FIFRA preempts only certain claims. FIFRA does not preempt Maryland from imposing common-law liability on the manufacturer if the manufacturer's product advertisements made claims as a part of its distribution or sale that substantially differ from claims made as part of the statement required in connection with the product's registration. The court also notes that although some of the statements in the advertisements seem at odds with the labeling claims, and others do not, it need not resolve the issue. The court holds that regardless of whether FIFRA preempts the nurse's advertisement-based claims, the district court's grant of summary judgment for the manufacturer was proper because as to each of her claims, the nurse failed to make an adequate showing as to at least one essential element of her cause of action.

The court holds that because evidence offered in support of the nurse's claim of negligent design, manufacture, marketing, distribution, assembly, and sale of the product does not support a claim of negligent design or manufacture, they are no different from her claim of negligent failure to warn. The court holds that the district court properly granted summary judgment for the manufacturer on the failure-to-warn claims. The nurse never alleged that she relied on the advertisements and that this reliance caused her to use the solution and so resulted in her injuries. Moreover, her counsel conceded in district court that there was no causal link between any statement by the manufacturer and her injuries. The court next holds that the district court properly granted summary judgment for the manufacturer on the nurse's strict liability and breach of express warranty claims, because she admitted that no statement by the manufacturer caused her injuries. The court holds that the district court properly granted summary judgment for the manufacturer on the nurse's claim of breach of implied warranty of fitness for a particular purpose. She nowhere alleged that her employer purchased the solution for a particular purpose that in any way differed from the ordinary purpose for which the solution was to be used—as a disinfectant. Nor did she allege that the manufacturer had reason to know that she was using the solution for a particular purpose.

Counsel for Plaintiff
Paul S. Blumenthal
Paul S. Blumenthal & Associates
1703 Governor's Bridge Rd., Davidsonville MD 21035
(301) 261-4205

Counsel for Defendant
Lawrence S. Ebner
McKenna & Cuneo
1575 Eye St. NW, Washington DC 20005
(202) 789-7500

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.