Grenier v. Vermont Log Bldgs., Inc., 95-2084

Citation96 F.3d 559
Decision Date01 April 1996
Docket NumberNo. 95-2084,95-2084
Parties, 65 USLW 2240, 27 Envtl. L. Rep. 20,209, 30 UCC Rep.Serv.2d 769, Prod.Liab.Rep. (CCH) P 14,734 Robert B. GRENIER, et al., Plaintiffs, Appellees, v. VERMONT LOG BUILDINGS, INC., et al., Defendants, Third-Party Plaintiffs, Appellants. v. DAP, INC. and Champion International Corp., Third-Party Defendants, Appellees. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Carol A. Griffin with whom Lawrence F. Boyle, W. Joseph Flanagan and Morrison, Mahoney & Miller, Boston, MA, were on brief, for appellants.

Roger D. Matthews with whom Nick K. Malhotra and Madan and Madan, P.C., Boston, MA, were on brief, for appellees DAP, Inc. and Champion International Corp.

Before TORRUELLA, Chief Judge, BOUDIN and STAHL, Circuit Judges.

BOUDIN, Circuit Judge.

Joan Grenier suffered from chronic gastritis for several years, allegedly in reaction to the wood preservative applied to the walls of her log home. She and her family sued Vermont Log Buildings, Inc. ("Vermont Log"), the manufacturer of their home, claiming negligence, breaches of warranty, and violation of Mass. Gen. L. ch. 93A. 1 Vermont Log in turn filed a third-party complaint against the alleged manufacturers of the preservative. The district court granted summary judgment for the manufacturers, rejecting Vermont Log's third-party claims. Vermont Log appeals. We affirm.

Because the case was decided on summary judgment, our recitation of the facts is based primarily on the facts as alleged. Snow v. Harnischfeger Corp., 12 F.3d 1154, 1157 (1st Cir.1993), cert. denied, 513 U.S. 808, 115 S.Ct. 56, 130 L.Ed.2d 15 (1994). In April 1975, Robert and Joan Grenier purchased the components of a log house from an authorized dealer for Vermont Log. The logs were shipped to the Greniers' lot in Massachusetts and assembled there. The Greniers moved into the house in May 1975. Vermont Log had treated the logs with Woodlife, a wood preservative containing the active ingredient pentachlorophenol.

In early 1982, Joan Grenier began displaying symptoms of gastritis, and continued to suffer intermittent stomach and back pain for several years. A doctor who examined her in April 1987 suspected that her condition was caused by wood preservative in the logs of the Greniers' cabin. Later tests revealed an elevated level of pentachlorophenol in her body. When she moved out of the house, her level of pentachlorophenol dropped and her symptoms abated.

At the time the Greniers bought their cabin, Woodlife was registered as a pesticide as required by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136-136y. FIFRA is one of a family of federal regulatory statutes that are concerned with health, safety and (in this case) the environment. Two of its main components are a requirement of prior approval of the product by the Environment Protection Agency, 7 U.S.C. § 136a(a), and of EPA approval of the labeling supplied with the product, id. § 136a(c)(1)(C).

In early 1975, the Woodlife labeling, which EPA had approved, warned that the product was toxic and was not "for use or storage in or around the home." The labeling also included a section describing the uses of the product: "PRODUCT USES: Millwork, shingles, siding, structural lumber, fences, trellises, outside furniture, vacation homes, all lumber and wood products." On September 26, 1975, the EPA approved a modified label for Woodlife. On the new labeling, the section listing product uses no longer included "vacation homes" as a use and added a further warning: "Do not use on interior surfaces which are not to be finished."

The Greniers filed suit in 1990 against Vermont Log and two allegedly related corporate entities (collectively, "Vermont Log"), alleging that pentachlorophenol used in the log home caused Joan Grenier's illness. The claims as ultimately amended comprised ten different counts, including bare bones claims for express and implied warranty breach, for negligence in design, manufacture and failure to warn, and under chapter 93A. Joan Grenier sought damages for her injuries; her husband and the Greniers' three children claimed loss of consortium.

In 1991, Vermont Log filed a third-party complaint against DAP, Inc. and Roberts Consolidated Industries, the alleged manufacturers, sellers, and distributors of Woodlife. Thereafter, Champion International, Inc., was added as a third-party defendant (Roberts was later dropped from the case by agreement). As amended, Vermont Log's third-party complaint asserted claims for contribution under Mass. Gen. L. ch. 231B based on negligence by the manufacturers of Woodlife, and claims for breaches of warranty by those manufacturers.

In August 1991, DAP and Roberts removed the action on diversity grounds to federal district court where it was assigned to Judge Zobel. In due course, Vermont Log and the third-party defendants moved for summary judgment on the Greniers' claims on the grounds that they were barred by the statute of limitations and that they were preempted by FIFRA. On November 4, 1992, Judge Zobel ruled that Joan and Robert Grenier's warranty and negligence claims were barred by the statute of limitations, but that their chapter 93A claims were timely under its longer limitations period. She also held that none of the children's claims for loss of consortium was barred, since the statute of limitations was tolled during their minority.

Judge Zobel further held that Vermont Log could seek contribution from DAP and Champion (for convenience we refer to them hereafter as "the Woodlife manufacturers"); but she ruled that Vermont Log could not obtain indemnification because by selling the logs to the Greniers Vermont Log participated in the conduct that allegedly damaged the Greniers. Finally, Judge Zobel concluded that under Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991), none of the claims was preempted by FIFRA.

After Judge Zobel's November 1992 ruling, the case was reassigned to newly appointed Judge Gorton. In May 1993, the Woodlife manufacturers filed new motions for summary judgment, this time against Vermont Log; they argued (based on intervening case law) that FIFRA preempted all of Vermont Log's remaining claims against them. Then-Magistrate Judge Ponsor, to whom the case had been referred, held a hearing on the motion in September 1993.

In July 1994, Judge Ponsor, having recently been appointed a district judge, relinquished jurisdiction in this case. At the same time he issued a memorandum in a companion case brought by a different plaintiff against Vermont Log. Judge Ponsor there ruled that FIFRA preempted claims of failure to warn and breach of implied warranty, but not claims of breach of express warranty and negligent design and manufacture. Jillson v. Vermont Log Bldgs., Inc., 857 F.Supp. 985 (D.Mass.1994).

After the present case was returned to Judge Gorton, he ruled that all of Vermont Log's claims were "related to the labeling and packaging" of Woodlife. While noting that a properly supported express warranty claim might not be preempted, Judge Gorton found Vermont Log's claim to be "based entirely on the label" because "[n]o other factual or evidentiary basis for the claim was provided in the pleadings." Judge Gorton granted summary judgment to DAP and Champion and entered a separate final judgment in their favor. See Fed.R.Civ.P. 54(b).

On appeal, Vermont Log argues that the district court erred in finding that all of its claims were preempted: it says that FIFRA preempts only those state-law claims based on the labeling or packaging of pesticides and it asserts that most of its claims are not based on the labeling or packaging of Woodlife but rather upon design and manufacturing defects and upon failure to warn unrelated to labeling and packaging. We review the district court's grant of summary judgment de novo, drawing reasonable inferences in favor of Vermont Log. Brown v. Hearst Corp., 54 F.3d 21, 24 (1st Cir.1995).

We begin, in the classic fashion, by seeking to lay the counts allegedly preempted along side the statutory preemption clause and the cases that have interpreted it and similar language in other statutes. Where, as here, Congress has included an express preemption clause in the statute, we start with the language of that provision. Medtronic, Inc. v. Lohr, --- U.S. ----, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517, 112 S.Ct. 2608, 2618, 120 L.Ed.2d 407 (1992). FIFRA's preemption clause, 7 U.S.C. § 136v, reads as follows:

(a) In general

A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.

(b) Uniformity

Such 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.

It is apparent from subsection (a), as well as other statutory language, e.g., 7 U.S.C. § 136w-1, that FIFRA does not wholly oust the states from pesticide regulation. See generally Mortier, 501 U.S. at 612-13, 111 S.Ct. at 2485-86. And it is equally apparent from subsection (b) that the state cannot apply different or additional "requirements" for "labeling and packaging." It was once an open question, but is now settled by the Supreme Court in Cipollone and Lohr, that "requirements" in this context presumptively includes state causes of action as well as laws and regulations. Lohr, --- U.S. at ---- - ----, 116 S.Ct. at 2251-53 (plurality opinion), id., at ---- - ----, 116 S.Ct. at 2259-60 (Breyer, J., concurring in part and concurring in judgment), id., at ---- - ----, 116 S.Ct. at 2262-63 (O'Connor, J., Scalia, J., and Thomas, J., concurring in part and dissenting in part); Cipollone, 505 U.S. at 521-22,...

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