Lowe's Home Centers, Inc. v. Olin Corp., No. 02-10518.

• Decision Date: 06 December 2002
• Docket Number: No. 02-10518.
• Citation: 313 F.3d 1307
• Parties: LOWE'S HOME CENTERS, INC., Plaintiff-Appellant, v. OLIN CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1307

313 F.3d 1307

LOWE'S HOME CENTERS, INC., Plaintiff-Appellant, v. OLIN CORPORATION, Defendant-Appellee.

No. 02-10518.

United States Court of Appeals, Eleventh Circuit.

December 6, 2002.

Elliot B. Kula, Arthur J. England, Jr., Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Miami, FL, Michael A. McKenzie, David M. Bessho, Cozen & O'Connor, Atlanta, GA, William Joseph Carter, Carr Maloney, P.C., Washington, DC, for Plaintiff-Appellant.

Mark G. Arnold, Husch & Eppenberger, LLC, St. Louis, MO, Michael S. Meyer Von Bremen, Albany, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before HULL, WILSON and FAY, Circuit Judges.

FAY, Circuit Judge:

Lowe's Home Centers, Inc. ("Lowe's") filed suit against Olin Corporation ("Olin") asserting three claims that, in whole or in part, center around Olin's alleged failure to properly warn Lowe's of the dangers involved in the storage and handling of a pool chlorinating product known as Pace Superchlorinator Shock Treatment ("Pace"). The active chemical ingredient in Pace is calcium hypochlorite ("cal-hypo"), a registered pesticide under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136, et. seq. The district court entered summary judgment in favor of Olin based upon this court's decision in Papas v. Upjohn Co., 985 F.2d 516 (11th Cir.), cert. denied, 510 U.S. 913, 114 S.Ct. 300, 126 L.Ed.2d 248 (1993) ("Papas II"). Lowe's appeals from the entry of summary judgment on Olin's behalf as well as the district court's denial of Lowe's' motion for leave to amend its first amended complaint. Because we find that Papas II is the law of this circuit and is binding upon this court and that the district court did not abuse its discretion in denying Lowe's' motion for leave to amend, we affirm.

I.

Lowe's is a national chain of more than 500 building supply retail stores that sells, among a number of other products, pool chlorinating products manufactured by Olin. One such pool chlorinating product is Pace, of which the active ingredient is cal-hypo, a highly reactive chemical designed to kill bacteria, control algae and destroy organic contaminants in swimming pools. Pace is a strong oxidizing agent that, when burned, results in a significantly accelerated and intense fire. Because of its chemical makeup and resulting dangers, Pace is a registered pesticide with the Environmental Protection Agency ("EPA") as required by FIFRA. In addition to being registered, Pace packages carry EPA-approved labels warning of the product's dangers.

The EPA-approved label on the front of a Pace package states, in pertinent part, "DANGER! Contamination may cause Fire!" and "See precautionary statements on back panel." Further, in addition to general information concerning use of the product and storage and disposal, the back panel of each package provides precautionary language further delineating the hazards and handling of the Pace product. In relevant part, the EPA-approved label provides:

CHEMICAL HAZARDS: DANGER. Strong oxidizing agent. Mix only into water. Contamination may start a chemical reaction with generation of heat, liberation of hazardous gases, and possible fire and explosion. Avoid any contact with flame or burning material, such as lighted cigarette. Do not contaminate with moisture, garbage, dirt, chemicals including other pool chemicals, pool chlorinating compounds, household products, cyanuric acid pool stabilizers, soap products, paint products, solvents, acids, vinegar, beverages, oils, pine oil, dirty rags, or any other foreign matter.

In addition to the specific warnings contained on the Pace packages themselves, Olin provided Lowe's with additional warnings and information in the form of a publication entitled "Guidelines for the Shipping, Storage and Handling of Olin Pool and Spa Care Products (`Guidelines')." The Guidelines are provided to each of Olin's pool product retail merchandisers even though such Guidelines are not required by FIFRA nor are approved by the EPA.

On April 16, 1996, Lowe's employees discovered a small fire inside of Lowe's' Albany, Georgia store in a pallet of Pace packages on display for sale to its customers. The pallet of the Pace product was located in the same area in the store as where Lowe's stored other Olin branded cal-hypo based pool products. At that time, Lowe's' Albany, Georgia store had approximately 10,000 pounds of cal-hypo based Olin pool products on display. Although the employees attempted to extinguish the fire upon discovering it, they were unable to do so. Therefore, the employees and all of the store's occupants evacuated the building and waited for the local fire department to arrive. However, the nature and intensity of the fire grew quickly, overwhelming the store's automatic sprinkler system and resulting in the destruction of the store and all of its contents prior to the timely arrival of the fire department.

Lowe's filed suit against Olin asserting two claims: (1) negligent design of the Pace product and (2) failure to warn of Pace's dangers. Thereafter, Olin amended its complaint to add a third claim, negligent supervision and training by Olin of Pennington Seed, Inc., Olin's Pace distributor. Following the completion of discovery, Olin moved for summary judgment asserting that each of Lowe's' claims were preempted by FIFRA. In response, Lowe's conceded that claims concerning deficiencies with the EPA-approved Pace warning labels were preempted by FIFRA but argued that its claims concerned not the Pace warning labels, but rather Olin's common law duty under Georgia law to disclose to its retailers information known only to Olin concerning the propensity of cal-hypo products to burn at such intensity as to overwhelm automatic sprinkler systems. Based upon our decision in Papas II, the district court granted judgment in favor of Olin finding that Lowe's' claims were preempted by FIFRA. Lowe's asserts that the district court erred in granting Olin summary judgment on its failure to warn claim.¹

II.

We review de novo the district court's rulings on motions for summary judgment. SCI Liquidating Corp. v. Hartford Fire Ins. Co., 181 F.3d 1210, 1212 (11th Cir.1999) (citing Maniccia v. Brown, 171 F.3d 1364, 1367 (11th Cir. 1999)). We must "view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the non-moving party." Maniccia v. Brown, 171 F.3d 1364, 1367 (11th Cir.1999) (citing Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997) (citation omitted)). Summary judgment is proper where the pleadings, depositions and affidavits demonstrate no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. (citing Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

III.

On two separate occasions this circuit has addressed whether the preemptive reach of FIFRA extends to common law tort claims that challenge the sufficiency of EPA-approved warning labels. On both occasions, we reached the same conclusion holding that FIFRA is sufficiently broad so as to preempt state common law tort claims that question the sufficiency of EPA-approved warning labels. See Papas v. Upjohn Co., 926 F.2d 1019 (11th Cir. 1991) ("Papas I"), vacated, Papas v. Zoecon Corp., 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992), on remand, Papas v. Upjohn Co., 985 F.2d 516 (11th Cir. 1993), cert. denied, 510 U.S. 913, 114 S.Ct. 300, 126 L.Ed.2d 248 (1993) ("Papas II"). Because our decision here today centers around our previous holdings in Papas I and Papas II, a discussion of those cases is in order.

The factual background of the Papas decisions is set forth in Papas I. Those facts reveal that Minas Papas, while working for a local humane society, utilized certain pesticides regulated by the EPA pursuant to FIFRA for purposes of ridding dogs of fleas, ticks and other pests. Papas I, 926 F.2d at 1020. Apparently, the use of the pesticides had a detrimental effect on Minas Papas' health. As such, Minas Papas and his wife Ollie filed a diversity action in federal district court against Upjohn Company and Zoecon Corporation sounding in negligence, strict liability and breach of implied warranty of merchantability. Id. Each of the counts, however, in whole or in part, centered around allegations of insufficient warning labels. Id. Accordingly, the district court granted Zoecon's motion for partial summary judgment concluding that FIFRA preempted the Papas' claims of inadequate labeling. Id. at 1021.

On interlocutory appeal, this court held that FIFRA impliedly preempted state common law tort claims for inadequate labeling. Id. In so holding, the Papas I court analyzed FIFRA and its statutory scheme noting that Congress specifically delineated the extent to which states could regulate pesticides in § 136v:

§ 136v. Authority of States

(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.

Id. (citing 7 U.S.C.A. § 136v (West 1980 & Supp.1990) (subsection headings added by 1988 amendment)).

Based on § 136v, the Papas I court concluded that jury awards of damages pursuant to common law tort actions would conflict with FIFRA. Id. at 1025. The court then stated:

For EPA-registered pesticides, the warning and use statements present on the labels indicate that the EPA has determined that those statements are adequate to protect man and the environment: that the pesticide as labeled does not pose any unreasonable risk to man...