Jillson v. Vermont Log Bldgs., Inc.

Decision Date22 July 1994
Docket NumberCiv. A. No. 91-30098-MAP.
PartiesAlma JILLSON and Robert Jillson, Plaintiffs, v. VERMONT LOG BUILDINGS, INC., Defendant, v. DAP, INC., Third-Party Defendant.
CourtU.S. District Court — District of Massachusetts

Jeffrey L. McCormick, Robinson, Donovan, Madden & Barry, Springfield, MA, for plaintiffs.

Lawrence F. Boyle, W. Joseph Flanagan, Morrison, Mahoney & Miller, Boston, MA, for defendant.

Katherine E. Perrelli, Day, Berry & Howard, Boston, MA, Philip S. Walker, Day, Berry & Howard, Hartford, CT, for third-party defendant.

MEMORANDUM REGARDING THIRD-PARTY DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

(Docket No. 24)

PONSOR, District Judge.

I. INTRODUCTION.

In 1982 the plaintiff Alma Jillson purchased a log home. The sellers of the home had purchased it from the defendant Vermont Log Builders, Inc. ("Vermont Log"), in 1979.1 The component logs of this home had been treated with a product called "Woodlife," which contained the chemical pentachlorophenol ("PCP").

Three years later, Jillson developed a rash on her face, which her doctor determined was caused by Woodlife. She vacated the house and sued Vermont Log under various state common law and statutory theories. Vermont Log brought a third-party action against DAP, Inc. ("DAP"), the manufacturer of Woodlife, seeking indemnity and contribution.

DAP has now moved for summary judgment, arguing that Vermont Log's claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136. For the reasons set forth below, DAP's motion will be allowed in part and denied in part.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY.

Jillson sued Vermont Log on June 7, 1990, for negligence, breach of warranty and violation of the Massachusetts consumer protection statute, Mass.Gen.L. ch. 93A, claiming that her exposure to PCP in the log home supplied by defendant caused her injury. Vermont Log impleaded the manufacturer of Woodlife—DAP, Inc.—as a third-party defendant, claiming DAP negligently designed and manufactured Woodlife, negligently failed to warn of the dangers of the product and breached both its express and implied warranties of merchantability and fitness for a particular purpose.

Prior to September, 1975, DAP's label on Woodlife was approved by the EPA, pursuant to FIFRA. The EPA-approved label contained no warning of possible dangers posed by living in a house treated with Woodlife. After May 1978, DAP or its predecessor amended the label to caution against its use on unfinished interior services.

Third-party defendant DAP removed this case to district court, and has now moved for summary judgment pursuant to Fed.R.Civ.P. 56. DAP claims that Vermont Log's state claims all relate to the allegedly inadequate labelling of Woodlife. Since the Woodlife label was approved by the EPA as required by FIFRA, DAP argues that Vermont Log's state law claims are preempted. See 7 U.S.C. § 136v(b) (1988). Vermont Log contends, first, that DAP waived the preemption issue by failing to plead it and, second, that its claims are not preempted by FIFRA in any event.

The motion before the court involves only third-party plaintiff Vermont Log and third-party defendant DAP. The issue is whether FIFRA preempts the state law claims of breach of express and implied warranty, negligent design, negligent manufacture and improper labelling. The court must also rule on the question of whether DAP's failure explicitly to plead preemption has cost it this affirmative defence.

III. SUMMARY JUDGMENT STANDARD.

Summary judgment is appropriate when "there is no genuine issue as to any material fact ... and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding this case, the court will view all facts in the light most favorable to the non-moving party, here third-party plaintiff DAP, and will indulge all reasonable inferences in its favor. Rossy v. Roche Products, Inc., 880 F.2d 621, 624 (1st Cir 1989). Defendant Vermont Log first must demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 227-28 (1st Cir. 1992). If defendant is successful, DAP must then "set forth specific facts showing there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citing Fed.R.Civ.P. 56(e)).

IV. DISCUSSION.
A. Waiver

Vermont Log asserts that the preemption defense has been waived, since it was not affirmatively pleaded in DAP's answer to the third-party complaint. According to Vermont Log, DAP's failure to offer any excuse as to why this affirmative defense was not previously pleaded makes it improper for the court to allow DAP to add this defense by amendment now.

In view of the liberal federal pleading rules, the crucial consideration in determining the appropriateness of an amendment to the answer is whether the third-party plaintiff would be prejudiced. See, e.g., Kennan v. Dow Chemical Co., 717 F.Supp. 799, 808 (M.D.Fla.1989) (citing Hassan v. U.S. Postal Service, 842 F.2d 260 (11th Cir.1988)); Fed. R.Civ.P. 15(b).

Here, Vermont Log does not argue that it would be prejudiced if DAP were allowed to amend its answer. Moreover, it does not appear that Vermont Log would be; as DAP points out, preemption has long been an issue in this case. Vermont Log cannot reasonably be surprised at DAP's articulation of the preemption defense, since preemption was raised in a case nearly identical to this one, involving both Vermont Log and DAP, and litigated by the same attorneys. See Grenier v. Vermont Log Builders, Inc. v. DAP, Inc., No. 91-40115 (D.Mass.1994). Furthermore, as in Kennan, "the availability of the pre-emption defense in this case is a matter of law, and there is no issue on which plaintiffs could conduct discovery which would alter this court's finding of preemption." Id. at 810. In light of the foregoing, this court holds that preemption has not been waived as an affirmative defense. This holding is contingent upon DAP filing a motion for leave to amend its answer to the third-party complaint, with the proposed amendment, within ten (10) days of the date of this memorandum.

B. Preemption

Unquestionably, FIFRA does preempt some of Vermont Log's state law claims. The extent of the preemption is the issue.

"The purpose of Congress is the ultimate touchstone" of preemption analysis. Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1190, 55 L.Ed.2d 443 (1978) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963)). "Congress' intent may be `explicitly stated in the statute's language or implicitly contained in its structure and purpose.'" Cipollone v. Liggett Group, Inc., et al., ___ U.S. ___, ___, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977)).

In the absence of express congressional command, state law is preempted if that law actually conflicts with federal law, or if federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it.

Cipollone, ___ U.S. at ___, 112 S.Ct. at 2617 (citations omitted).

The Supreme Court's Cipollone decision provides a good starting point for discussion of preemption. In Cipollone, a woman died from smoking-induced lung cancer. Plaintiff sued the cigarette manufacturers alleging a variety of tort claims, including negligent and defective design and manufacture and failure to warn, as well as breach of warranty. The defendant responded that plaintiff's claims were preempted by the Federal Cigarette Labelling and Advertising Act of 1965, § 5, as amended by the Public Health Cigarette Smoking Act of 1969, § 2, 15 U.S.C. § 1334. The statute at issue regulated the labeling of cigarette packages. The presence of an express preemption provision was noted by the Court as evidence that there was no implied preemption in this statute. Id. at ___, 112 S.Ct. at 2618. The Court, in a divided decision, analyzed each of plaintiff's claims in light of this express statutory provision.

Since the Acts of 1965 and 1969 dealt with the advertising and promotion of cigarettes, all claims relating to or stemming from advertising or promotion were found to be preempted. The plurality also held that breach of express warranty, intentional fraud and misrepresentation, and conspiracy claims were not preempted. A 7-2 majority found state law damage claims not to be preempted for three reasons: first, there was a presumption against preemption of state police-power regulations; second, the health warning the Act required did not foreclose additional state law obligations; and, finally, there was no conflict between federally mandated warnings and the "continued vitality of state common law damages actions." Cipollone at ___, 112 S.Ct. at 2618.

The First Circuit interpreted Cipollone in King v. Collagen Corp., 983 F.2d 1130 (1st Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 84, 126 L.Ed.2d 52 (1993). In Collagen, plaintiff brought suit against the manufacturer of a cosmetic medical device used to correct skin disfigurements, asserting state claims for failure to warn and for fraud by defendant in obtaining FDA approval of the product and its label. The court of appeals found that all plaintiff's claims were preempted by the FDA regulations under the Medical Device Amendments of 1976 (MDA), 21 U.S.C. §§ 360c et seq. As the Supreme Court did in Cipollone, the First Circuit in Collagen relied solely upon the express preemption provisions of the statute to determine the extent of preemption. The statute's preemption provisions provided that:

States may not establish or continue in effect with respect to any device intended for human use any requirement (
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