Jenkins v. James B. Day & Co.

• Citation: 69 Ohio St.3d 541,634 N.E.2d 998
• Decision Date: 13 July 1994
• Docket Number: No. 92-1002,92-1002
• Parties: , 63 USLW 2074, Prod.Liab.Rep. (CCH) P 14,027 JENKINS, Admr., Appellee, v. JAMES B. DAY AND COMPANY, Appellant.
• Court: United States State Supreme Court of Ohio

Page 541

69 Ohio St.3d 541

634 N.E.2d 998, 63 USLW 2074, Prod.Liab.Rep. (CCH) P 14,027

JENKINS, Admr., Appellee, v. JAMES B. DAY AND COMPANY, Appellant.

No. 92-1002.

Supreme Court of Ohio.

Submitted March 1, 1994.

Decided July 13, 1994.

SYLLABUS BY THE COURT

The Federal Hazardous Substances Act provides a limited preemption of state law in the area of labeling of hazardous substances. A products liability action for inadequate labeling of a hazardous substance covered by the FHSA brought pursuant to state law that imposes labeling requirements identical to the requirements of the FHSA is not preempted. On March 8, 1990, the body of Julette Jenkins was found on the first floor of her rented house. The cause of her death was not readily apparent to those who found her body.

The coroner's report following an autopsy indicated that death was caused by inhalation of methylene chloride. A container of a paint stripping product called Dayco Marine-Strip ("Marine-Strip") had been found in the attic of the house shortly after the death. The label of the container revealed that the product's principal active ingredient is methylene chloride. On the day the body was found, a window in the attic of the home was observed to be open about two inches, and indications that the decedent had recently been stripping paint from furniture in the attic were discovered.

On the basis that methylene chloride fumes emanating from the Marine-Strip had caused Julette's death, her father, plaintiff-appellee Richard W. Jenkins, filed a wrongful death products liability action as the administrator of her estate. Named as defendant in the suit was appellant James B. Day and Company ("Day Co."), the manufacturer of Marine-Strip. In the complaint, Jenkins claimed, inter alia, (1) that the product was defectively formulated as defined in R.C. 2307.75(A); and (2), pursuant to R.C. 2307.76(A), that the label on the container of Marine-Strip was inadequate to warn users of the product's dangers or to instruct in its use, and that Day Co. was negligent in failing to affix an adequate label to its product.

The front of the Marine-Strip container bore the following message:

"WARNING!

"HARMFUL IF INHALED OR SWALLOWED.

"SKIN AND EYE IRRITANT.

"See Other Cautions on Back Panel."

On the back of the container appeared the following language:

"CAUTION--CONTAINS METHYLENE CHLORIDE--IF SWALLOWED

"INDUCE VOMITING--CALL PHYSICIAN IMMEDIATELY

"Keep away from heat, sparks and flame. Extinguish all flames, including pilot lights, and turn off stoves, ovens, heaters, electric motors, and other sources of ignition during use and until all vapors (odors) are gone. Contact with flame or hot surfaces may produce toxic gases. Avoid prolonged breathing of vapor or contact with skin or eyes. To avoid breathing vapors or spray mist, open windows and doors or use other means to ensure fresh air entry during application and drying. If you experience eye watering, headaches, or dizziness, increase fresh air, wear respiratory protection (NIOSH/MSHA TC 23C or equivalent) or leave the area. Do not transfer contents to unlabeled bottles or other containers. Close container after each use.

"FIRST AID: If swallowed, induce vomiting. Call Physician immediately. For eye contact, flush thoroughly with water and get prompt medical attention; for skin contact, wash thoroughly.

"NOTICE: Reports have associated repeated and prolonged occupational over exposure to solvents with permanent brain and nervous system damage. Intentional misuse by deliberately concentrating and inhaling vapors may be harmful or fatal. Prolonged breathing of vapors in poorly ventilated areas can be hazardous and even fatal to persons with heart disease.

"USE ONLY WITH ADEQUATE VENTILATION

"KEEP OUT OF REACH OF CHILDREN"

After denying in its answer that Marine-Strip caused the death, Day Co. filed a motion for summary judgment, alleging that the company had complied with all requirements of the Federal Hazardous Substances Act ("FHSA"), and urging that therefore Jenkins's state law products liability claims were preempted by federal law. After Jenkins responded to the motion, the trial court granted summary judgment in favor of Day Co., by an entry which read in toto:

"Defendant's Motion for Summary Judgment is granted as it appears this action is preempted by the Federal Hazardous Substances Act.

"Judgment for Defendant.

"Costs are to be paid by Plaintiff."

Jenkins appealed to the Court of Appeals for Franklin County, which reversed the judgment of the trial court and remanded the cause for further proceedings. The court of appeals held that summary judgment was inappropriate because genuine issues of material fact were present concerning whether the warning label on the Marine-Strip container complied with the requirements of the FHSA. The court of appeals further held that even if Day Co. did comply with the requirements of the FHSA, Jenkins's state law products liability claims based on R.C. 2307.76 were not preempted.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Matan & Smith and Eugene L. Matan, and Amy L. Silvestri, for appellee.

James K. Reuss and Mary McWilliams Dengler, for appellant.

Brian Wolfman, Alan B. Morrison, Lucinda A. Sikes, Patti A. Goldman, Arthur Bryant, Anne Bloom and Harry Lewis, urging affirmance for amici curiae, Public Citizen, Inc. and Trial Lawyers for Public Justice.

Ray & Todaro Co., L.P.A., and Frank A. Ray, urging affirmance for amicus curiae, Ohio Academy of Trial Lawyers.

ALICE ROBIE RESNICK, Justice.

This case requires us to resolve whether appellee's products liability action is preempted by the FHSA, Section 1261 et seq., Title 15, U.S.Code.

The trial court, in its regrettably abbreviated entry granting appellant's motion for summary judgment, implicitly found, pursuant to the terms of Civ.R. 56(C), that there was "no genuine issue as to any material fact" and that appellant was "entitled to judgment as a matter of law." The trial court apparently determined that, even when the evidence is construed most strongly in favor of appellee, the FHSA preempts all of appellee's claims. We thus review the propriety of the trial court's determination that appellant was entitled to judgment as a matter of law.

In In re Miamisburg Train Derailment Litigation (1994), 68 Ohio St.3d 255, 259, 626 N.E.2d 85, 89, this court recognized that, pursuant to Clause 2, Article VI of the United States Constitution (the Supremacy Clause), the United States Congress possesses the power to preempt state law. "The key question in any preemption analysis is whether Congress intended for state law to be superseded by federal law." Id., 68 Ohio St.3d at 260, 626 N.E.2d at 89 (citing Cipollone v. Liggett Group, Inc. [1992], 505 U.S. ----, ----, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407, 422). The United States Supreme Court, in the course of several recent decisions, provided guidelines for determining Congressional intent to preempt state law in a particular situation. Initially, a presumption against preemption is the appropriate starting point to begin any preemption inquiry. See CSX Transp., Inc. v. Easterwood (1993), 507 U.S. ----, ----, 113 S.Ct. 1732, 1737, 123 L.Ed.2d 387, 396 ("In the interest of avoiding unintended encroachment on the authority of the States, * * * a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find pre-emption."). As this court acknowledged in In re Miamisburg, 68 Ohio St.3d at 262, 626 N.E.2d at 91, state tort claims can be within the preemptive reach of a federal statute in the appropriate situation, despite the presumption against preemption.

If a federal statute contains an express preemption clause, matters beyond the reach of the express clause are not preempted. Cipollone, 505 U.S. at ----, 112 S.Ct. at 2618, 120 L.Ed.2d at 423. Since the FHSA contains a preemption clause, we examine the text of that clause to determine if Congress intended for appellee's claims to be preempted in the context of the FHSA. See In re Miamisburg, 68 Ohio St.3d at 260, 626 N.E.2d at 90.

In Moss v. Parks Corp. (C.A.4, 1993), 985 F.2d 736, 739, the court set forth the history behind the FHSA's preemption clause:

"The FHSA was enacted in 1960. The purpose of the law was to 'provide nationally uniform requirements for adequate cautionary labeling of packages of hazardous substances which are sold in interstate commerce and are intended or suitable for household use.' House Comm. On Interstate and Foreign Commerce, Federal Hazardous Substances Labeling Act, H.R.Rep. No. 1861, 86th Cong., 2d Sess. 2 (1960), reprinted in 1960 U.S.C.C.A.N. 2833, 2833. As enacted the FHSA did not contain a preemption section. However, when the Act was amended in 1966, the legislative history discussed the impracticality of having the states produce potentially fifty different labels for a particular hazardous substance. Congress recommended 'a limited preemption amendment which would encourage and permit states to adopt requirements identical with the federal requirements for substances subject to the Federal Act, and to enforce them to complement Federal enforcement * * *.' House Comm. On Interstate and Foreign Commerce, Child Protection Act of 1966, H.R.Rep. No. 2166, 89th Cong., 2d Sess. 3 (1966), reprinted in 1966 U.S.C.C.A.N., 4095, 4096."

The FHSA's preemption clause (the "limited preemption amendment" referred to in the above passage), as amended, provides:

"[I]f a hazardous substance or its packaging is subject to a cautionary labeling requirement under section 2(p) or 3(b) [Section 1261(p) or 1262(b), Title 15, U.S.Code] designed to protect against a risk of illness or injury associated with the substance, no State or political subdivision of a State may establish or continue in effect a cautionary labeling requirement applicable to such substance or...