Lyall v. Leslie's Poolmart

Decision Date31 October 1997
Docket NumberNo. 96-CV-60201-AA.,96-CV-60201-AA.
Citation984 F.Supp. 587
PartiesDavid LYALL and Rose Ann Lyall, Plaintiffs, v. LESLIE'S POOLMART a/k/a Leslie's Poolmart (Inc.), d/b/a Leslie's Swimming Pool Supplies, a foreign corporation, Occidental Chemical Corporation, a foreign corporation, Stellar Manufacturing Company, corporation,
CourtU.S. District Court — Eastern District of Michigan
984 F.Supp. 587
David LYALL and Rose Ann Lyall, Plaintiffs,
v.
LESLIE'S POOLMART a/k/a Leslie's Poolmart (Inc.), d/b/a Leslie's Swimming Pool Supplies, a foreign corporation, Occidental Chemical Corporation, a foreign corporation, Stellar Manufacturing Company, corporation,
No. 96-CV-60201-AA.
United States District Court, E.D. Michigan, Southern Division.
October 31, 1997.

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COPYRIGHT MATERIAL OMITTED

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Louis G. Corey, Corey & Carolan, P.C., Royal Oak, MI, for David Lyall, Rose Ann Lyall.

Nancy L. Waldmann, Jaffe, Raitt, Heuer & Weiss, Professional Corp., Detroit, MI, for Leslie's Poolmart, Occidental Chemical Corp.

John M. Conway, Troy, MI, for Stellar Mfg.

Richard P. Smith, Detroit, MI, for Plastican.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS LESLIE'S POOLMART'S, OCCIDENTAL CHEMICAL CORPORATION'S AND PLASTICAN INC.'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANT STELLAR MANUFACTURING COMPANY'S MOTION FOR SUMMARY JUDGMENT

HACKETT, District Judge.


This is a products liability action arising out of plaintiff David Lyall's (Lyall's) injuries sustained when he attempted to open a 40-pound container of chlorine for his swimming pool. Lyall's wife Rose Ann Lyall also has joined in the suit alleging loss of consortium. Plaintiffs are suing the seller and manufacturers of the container, chlorine tablets and raw materials, alleging negligence and breach of implied and express warranties. All of the defendants have filed motions for summary judgment, arguing that plaintiffs' claims are preempted by federal packaging and labeling requirements set forth under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136-136y, and the Hazardous Materials Transportation Act (HMTA), 49 U.S.C. § 5125. Plaintiffs oppose the motions. Defendant Stellar Manufacturing Inc. also argues that it is entitled to summary judgment because it adhered to packaging specifications provided by defendant Occidental Chemical Corporation (Occidental). For the reasons set forth below, defendants, motions for summary judgment shall be granted in part and denied in part.

BACKGROUND

On August 11, 1995, David Lyall was adding chlorine to his swimming pool in the backyard of his home. The chlorine was in tablet form and was specifically known as Leslie's Chlorinator Tablets 1" (1" tablets). Defendant Leslie's Poolmart is a national retailer of pool supplies which sold the chlorinator tablets to plaintiffs. The tablets were in a 5.5 gallon plastic container having a child proof lid. Defendant Plastican Inc. (Plastican) designed and manufactured the container.

Page 590

Defendant Stellar Manufacturing Company (Stellar) manufactured the chlorinator tablets. Stellar maintains that it packaged the tablets with strict adherence to the requirements of defendant Occidental. Occidental manufactured and shipped to Stellar the raw ingredients, including trichlor, used to make the chlorinator tablets, as well as the containers which Stellar used to package the tablets. In summary, the defendants and their role in the manufacture and sale of the chlorine tablets and its container are: (1) Leslie's Poolmart, retail seller; (2) Occidental, manufacturer of raw materials used to make chlorine tablets and supplier of container; (3) Plastican, manufacturer of container; and, (4) Stellar, manufacturer of chlorine tablets.

Plaintiff David Lyall claims that on August 11, 1995, when he attempted to open the 40-pound container of chlorine tablets, the lid blew off because of the build up of the gas nitrogen trichloride. He claims that the lid, chlorine and chlorine gas exploded into his face, causing him to lose his right eye and to suffer severe chemical burns and cuts to his face, which has resulted in permanent scaring and disfigurement. Plaintiff David Lyall's right eye has been replaced with a prosthetic device.

The Lyalls' amended complaint alleges negligence and breach of implied and express warranty against the four defendants. Specifically, the nine-count complaint is pled as follows: Count I (negligence) and Count II (breach of express and implied warranty) allege that defendant Leslie's Poolmart is liable for selling a defective container and for failing to warn of the hazards of the chlorine product and container. Count III (negligence) and Count IV (breach of express and implied warranty) allege that defendant Occidental is liable for manufacturing and designing the chlorine tablet and for failing to warn of hazards of the chlorine product and container. Count V (negligence) and Count VI (breach of express and implied warranty) allege that defendant Plastican is liable for the design and manufacture of the container and for failing to warn of the hazards of the container. Count VII (negligence) and Count VIII(breach of implied and express warranty) allege that defendant Stellar is liable for negligently packaging the container and for failing to warn of hazards associated with the chlorine product and container. Count IX alleges a loss of consortium claim against all the defendants on behalf of plaintiff Rose Ann Lyall.

Defendants Leslie Poolmart and Occidental, which are represented by the same counsel, filed a joint motion for summary judgment. Defendant Plastican joined in that motion. Defendant Stellar filed a separate motion for summary judgment.

In defendants' motions for summary judgment, defendants stress that the labeling and packaging of the chlorinator tablets complied with Environmental Protection Agency (EPA) requirements and as such, plaintiff's claims are preempted by the FIFRA. Specifically, Leslie's Poolmart and Occidental contend that the chlorine tablets were extensively tested and approved for sale by the EPA. They contend that the tablets are a pesticide within the meaning of FIFRA, and are subject to FIFRA packaging and labeling requirements as set forth at 7 U.S.C. § 136-§ 136(y) and 40 C.F.R. § 152-186. Defendants claim that Leslie's Chlorinator Tablets 1" were originally registered with the EPA in 1975 and were reregistered in 1988 under registration number 11411-3.

Plaintiffs respond that the chlorinator tablets in dispute were not subject to an EPA-approved label as the EPA documents submitted by Leslie's Poolmart in January, 1994, covered only 4, 8, 16, 25, 50 and 51 pound containers of the tablets and that there was no reregistration for the 40-pound container in dispute. Defendants respond that the relevant regulations do not require reregistration for changes in package size and net contents of a package.

Defendant Plastican joined in defendants Leslie Poolmart's and Occidental's argument that FIFRA preempts plaintiffs' claims. Plastican also raised the additional argument that the claims are preempted by Department of Transportation statutes and regulations regarding the transportation of hazardous materials, 49 U.S.C. § 5101 et seq., and in particular, by the Hazardous Materials Transportation Act (HMTA), 49 U.S.C.

Page 591

§ 5125. Defendants Leslie's Poolmart and Occidental filed a supplemental brief to join in Plastican's additional argument that the HMTA and related regulations preempt plaintiffs' claims. The Lyalls respond that the HMTA is concerned solely with the transportation of hazardous substances and does not preclude product liability claims arising from consumer use of a product.

Defendant Stellar filed a separate motion for summary judgment. Stellar joined in the same FIFRA and HMTA preemption arguments made by the other three defendants, but also raised an additional defense. Stellar claims that it is entitled to summary judgment because it produced and packaged the chlorine tablets in strict conformity with the requirements of Occidental. Plaintiffs respond that because Occidental was not the purchaser of the tablets at issue, complying with Occidental's instructions is no defense in this products liability action.

ANALYSIS

I. FIFRA Preemption

In determining whether plaintiffs' claims are preempted by FIFRA, this court is mindful that the Supreme Court has cautioned courts considering preemption defenses that Congressional intent is the "ultimate touchstone" in determining whether claims are preempted. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992). Where Congress has specifically enacted a provision defining the preemptive reach of a statute, as in this case via 7 U.S.C. § 136v, there is a presumption that matters beyond that reach are not preempted. Id. at 518, 112 S.Ct. at 2618. The court's analysis of the scope of the preemption set forth in § 136v, begins with the text of the statute itself. Medtronic, Inc. v. Lohr, 518 U.S. 470, ____, 116 S.Ct. 2240, 2250, 135 L.Ed.2d 700 (1996). In determining whether state law claims are preempted, the Supreme Court has cautioned that there are two presumptions which should guide the court's analysis: (1) there is a presumption that Congress did not intend to preempt the historic police powers of the State, and (2) the purpose of Congress is the "ultimate touchstone." Id. Congress' intent is to be discerned from the statute itself and the statutory framework surrounding it. Id. at ____, 116 S.Ct. at 2250-51.

Defendants claim that plaintiffs' claims are preempted by FIFRA. Specifically, defendants rely on language in the statute expressly barring any state requirements for labeling or packaging which are different from the requirements imposed by FIFRA for EPA registered pesticides. Defendants cite 7 U.S.C. § 136v, which provides:

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...

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