Atkins v. Rust-Oleum Corp., Civil Action No. 18-1349

• Decision Date: 03 February 2020
• Docket Number: Civil Action No. 18-1349
• Parties: LAURA ATKINS, on her own behalf and on behalf of the estate of JOSHUA PAUL ATKINS, Plaintiffs, v. RUST-OLEUM CORPORATION, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

LAURA ATKINS, on her own behalfand on behalf of the estate of JOSHUA PAUL ATKINS, Plaintiffs, v. RUST-OLEUM CORPORATION, Defendant.

Civil Action No. 18-1349

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

February 3, 2020

Judge Marilyn J. Horan

OPINION AND ORDER

Plaintiffs filed suit against Defendant in the Court of Common Pleas of Allegheny County on September 17, 2018. (ECF No. 1-2). Defendant removed the matter to federal court on the basis of diversity jurisdiction on October 9, 2018. (ECF No. 1). The Complaint alleges claims of negligence per se for alleged violations of the Federal Hazardous Substances Act, 15 U.S.C. § 1261 et seq.; negligence; strict liability; and wrongful death. (ECF No. 1-2). Following the completion of fact and expert discovery, Defendant filed the present Motion for Summary Judgment on November 26, 2019. (ECF No. 22).

For the following reasons, the Motion will be denied.

I. Background

Thirty-one-year-old Joshua Atkins lived with this mother, Laura Atkins, in South Connellsville, Pennsylvania. (ECF No. 25, at ¶ 3). According to Plaintiffs, Joshua had many hobbies and interests, including BMX biking. (ECF No. 1-2, at ¶ 64). One evening in February 2018, after Ms. Atkins left for her night shift at work, Joshua took the front fork of a bike, a metal bowl, a spatula, a tin pan, and a can of Rust-Oleum Aircraft Remover paint stripper into the bathroom. (ECF No. 1-2, at ¶ 72; ECF No. 25, at ¶ 4). He shut the bathroom door and sat in the bathtub with the bike fork, tin pan, bowl, and spatula. (ECF No. 25, at ¶¶ 4, 8). He propped the bike fork up in the tin pan and poured about one-third of the Aircraft Remover into the pan. (ECF No. 26-10, at 2-3). He then set the container of Aircraft Remover on the floor outside the tub. (ECF No. 25, at ¶ 4). Joshua did not open the bathroom window, and the bathroom did not have an exhaust fan. Id. at ¶¶ 8-9.

The Aircraft Remover, which Rust-Oleum marketed as a professional grade paint stripper and sold to consumers for household use, contained methanol (sometimes called methyl alcohol) and methylene chloride. Id. at ¶¶ 5, 10-11. Both chemicals are hazardous substances under the Federal Hazardous Substances Act (FHSA). Id. at ¶ 11. Because the Aircraft Remover contained hazardous substances, the FHSA required that Rust-Oleum place cautionary language on the Aircraft Remover's packaging. Id. The front panel on the Aircraft Remover container, manufactured in March 2017 and later purchased by Joshua, stated (in smaller print than appears here):

DANGER! POISON! [skull and crossbones pictogram]

VAPOR HARMFUL. CAUSES EYE BURNS. SKIN IRRITANT.

MAY BE HARMFUL, FATAL OR CAUSE BLINDNESS IF SWALLOWED.

(See Other Cautions on Back Panel).

Id. at ¶ 12. The back panel provided, in English and in Spanish (again, in smaller print than appears here):

Carefully read all instructions on the Technical Data Sheet and cautions on the MSDS before use. Protect hands with solvent-resistant gloves and eyes with chemical splash goggles.

DIRECTIONS FOR USE:

1. Mask seams and trim openings as this will prevent bleed-back stripping of new finish. 2. Pour remover into a metal container and apply a thick coat with achemical resistant brush. If applying to a vertical surface, begin application at the bottom, as vapors are heavier than air and can accumulate near the floor. Apply to one section at a time, up to 9 sq. ft. Brush in one direction only. 3. Allow remover to work until finish is blistered or softened completely, generally within 5-15 minutes. 4. Remove paint with a flexible plastic scraper, and then flush with solvent or water to remove any residue. Allow surface to dry before applying a new finish. Prime metal as soon as possible to prevent flash rust. Note: This product may not be compatible with all surfaces and all conditions surrounding application. Before applying to any surface, always test product in a small, inconspicuous area to ensure no damage will result. For best results, apply at temperatures between 65° and 90°F (18°C and 32°C), and avoid direct sunlight or strong breezes.

DANGER! CONTAINS METHYLENE CHLORIDE, ETHYL ALCOHOL AND METHANOL. Do not smoke. Keep away from heat, sparks and flame. Contact with flame or hot surface may produce toxic/corrosive gases. Use only with adequate ventilation. Prevent build-up of vapors by opening windows and doors to achieve cross-ventilation. Vapor harmful. May affect the brain or nervous system causing dizziness, headache or nausea. Methylene chloride has been shown to cause cancer in certain laboratory animal tests. Risk to your health depends on level and duration of exposure. METHYLENE CHLORIDE REDUCES THE BLOODS OXYGEN-CARRYING CAPACITY. NOTICE: Reports have associated repeated and prolonged occupational overexposure to solvents with permanent brain and nervous damage. Intentional misuse by deliberately concentrating and inhaling the contents may be harmful or fatal. Do not breathe vapors or spray mist. Ensure fresh air entry during application and drying. If you experience eye watering, headache or dizziness or if air monitoring demonstrates vapor/mist levels are above applicable limits, wear an appropriate, properly fitted respirator (NIOSH approved) during and after application. Follow respirator manufacturer's directions for respirator use. Cannot be made non-poisonous. Causes eye burns and skin, nose and throat irritation. Do not get in eyes, on skin or clothing. May be harmful if absorbed through skin. May cause allergic skin reaction. Wash thoroughly after handling. WARNING: This product contains a chemical known to the State of California to cause cancer and birth defects, or other reproductive harm. Wash clothing before reuse. Thoroughly clean contaminated shoes. KEEP OUT OF REACH OF CHILDREN.

First Aid: In case of eye contact, immediately flush eyes with plenty of water for at least 15 minutes. Get medical attention immediately. In case of skin contact, wash thoroughly with soap and water for at least 15 minutes. Remove contaminated clothing and shoes. Get medical attention immediately. If you experience difficulty breathing, leave the area to obtain fresh air. If continued difficulty is experienced, get medical attention immediately. If swallowed, contact a physician or poison control center immediately. DO NOT induce vomiting unless directed to do so by medical personnel.

For a detailed Material Safety Data Sheet, visit our website at www.rustoleum.com or call us at 800-225-8543.

Use this product outdoors, if possible. If you must use it indoors, open all windows and doors or use other means to ensure fresh air movement during application and drying. If workplace exposure monitoring indicates methylene chloride levels cannot be controlled to below the established OSHA exposure limits (29 CFR 1910.1050), then appropriate respiratory protection must be provided. A dust mask does not provide protection against vapors. Do not use in basement or other unventilated area. Spillage: Open containers carefully and close after each use. If spilled, contain spilled material and remove with inert absorbent. Dispose of contaminated absorbent, container and unused contents in accordance with local state and federal regulations. Clean up rags, papers and waste promptly. Allow solvent to evaporate then dispose of in metal container. DO NOT USE ON AIRCRAFT

Disposal: Call your local sanitation department for aid in disposing unwanted product in your area or call the Environmental Protection Agency Solid and Hazardous Waste hotline at 1-800-424-9345. Do not dump on the ground or in local sewer of discharge system.

Id. at ¶ 13.

When Ms. Atkins arrived home from work the next morning, she found Joshua sitting and slumped over in the bathtub. Id. at ¶ 4. Ms. Atkins called emergency services, which reported that Joshua "had obvious signs of death" upon their arrival. (ECF No. 1-2, at ¶ 73). The autopsy and toxicological testing showed that Joshua died as a result of inhalation of methylene chloride vapors. (ECF No. 25, at ¶ 6). One expert report opines that the methylene chloride vapor levels reached the "Immediately Dangerous to Life and Health" range within eight to ten minutes of when Joshua poured the Aircraft Remover into the tin pan. (ECF No. 26-10, at 13).

Ms. Atkins, on her own behalf and on behalf of Joshua's estate, filed suit against Rust-Oleum, alleging in part that Rust-Oleum failed to adequately warn consumers of the hazards of using its Aircraft Remover product. (ECF No. 1-2). Rust-Oleum moves for summary judgment on this issue, arguing that the Aircraft Remover label complied with the FHSA'srequirements, thereby preempting any of Plaintiffs' claims that are based on inadequate labeling. (ECF No. 22).

II. Legal standard

According to Federal Rule of Civil Procedure 56, a court must grant summary judgment where the moving party "shows that there is no genuine dispute as to any material fact" and the moving party "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). For a dispute to be genuine, there must be "a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party." Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 213 (3d Cir. 2017) (internal quotations omitted). Additionally, for a factual dispute to be material, it must have an effect on the outcome of the suit. Id.

In reviewing and evaluating the evidence for a motion for summary judgment, the court must "view the underlying facts and all reasonable inferences therefrom in the light most favorable to the" non-moving party. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014) (internal quotations omitted). However, where "the non-moving party fails to make 'a sufficient showing on an essential element of her case with respect to which she has the burden of proof,'" the moving party is entitled to judgment as a matter of law. Moody, 870 F.3d at 213 (quoting Celotex Corp. v. Catrett, 477 U.S. 317,...