Milanese v. Rust-Oleum Corp.
| Decision Date | 07 November 2000 |
| Docket Number | Docket No. 00-7527,RUST-OLEUM |
| Citation | 244 F.3d 104 |
| Parties | (2nd Cir. 2001) VITO MILANESE, JR. and SUZANNE MILANESE, Plaintiffs-Appellants, - v. -CORPORATION, Defendant-Appellee. Argued: |
| Court | U.S. Court of Appeals — Second Circuit |
JAY L. FEIGENBAUM, Finz & Finz, P.C., Jericho, New York, for Plaintiffs-Appellants.
MICHAEL B. SENA, Silbert, Hiller & Sena, L.L.P., New York, New York, for Defendant-Appellee.
Before: KEARSE, McLAUGHLIN, and STRAUB, Circuit Judges.
BACKGROUND
Vito Milanese, Jr. ("Milanese") was the co-owner of a small landscaping business. His amour propre, however, was his Ferrari 308. In December 1996, he dedicated his evenings to rust-proofing the chassis. This tedious operation required wire-brushing the entire under-body of the car, then applying a rust-preventing primer coat, followed by a coat of enamel. For use in priming and painting, Milanese bought a can of Rust-Oleum Rusty Metal Primer (the "Primer") and a can of Rust-Oleum Protective Enamel (the "Enamel"). While using the primer, vapors were ignited by the flame in an adjacent wood-burning stove, causing a flash fire that severely burned Milanese.
On the front of the Primer can appeared the following warning in red, bold letters: The directions for use on the back of the can stated:
On the back of the Primer can the following precautions also appeared:
CONTAINS TULUOL AND XYLOL. Keep away from heat, sparks and flame, including pilot lights and cigarettes. Avoid over-exposure to vapors. 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 or wear respiratory protection (NOSH/MSHA TC 23 C or equivalent), or leave the area. Avoid contact with skin. DO NOT puncture or incinerate.
In contrast, the warning on the front of the Enamel can stated, in red bold letters: (emphasis added). Although the directions for use on the back were similar to those on the can of Primer, additional precautions were listed on the back of the Enamel can:
Vapors may ignite explosively. Keep away from heat, sparks and flame. Extinguish all flames and pilot lights, and turn off stoves, heaters, electric motors and other sources of ignition during use and until all vapors are gone. Do not smoke. Use only with adequate ventilation. Prevent build-up of vapors by opening all windows and doors to achieve cross-ventilation. Do not expose to heat or store at temperatures above 120 F. Exposure to heat or prolonged exposure to sun may cause bursting. Do not puncture or incinerate (burn) container. (emphasis added).
* * * *
The two products were packaged together in a blue plastic wrapper. It is unclear from the record what warnings, if any, appeared on the plastic packaging itself. Milanese was familiar with the individual warning labels because he had used both products on numerous occasions and had recently read each label.
On December 10, 1996, as he had done often, Milanese went out to his garage to work on his Ferrari. The garage was detached from his house, was approximately 12 feet x 18 feet in size, and was heated by a wood-burning, pot-belly stove. On this night, Milanese intended to scrape and prime (but not paint) the car's wheel wells.
The Ferrari was parked front-end in, with its rear wheels closest to the garage door, and its front-passenger side near the wood-burning stove. Having previously compared the Primer label with the Enamel label, Milanese concluded that, as long as he did not use the Primer near the pot-belly stove, he need not put out the fire that was fully enclosed in the stove before using the Primer. In addition to two large air vents in the rafters, Milanese cranked open two small windows on the wall of the garage nearest the stove. He did not open the garage door.
He then began to scrape and prime the wheel wells, beginning with the front driver-side, then moving counter-clockwise to the rear driver-side and the rear passenger-side. Ten minutes after he began to spray the Primer onto the rear passenger-side wheel well, vapors from the Primer licked the fire in the stove approximately 10 feet away, triggering a flash fire that engulfed Milanese in flames. Milanese sustained second and third degree burns to more than 36% of his body. He is permanently disfigured and scarred.
In August 1998, Milanese commenced this action against the Rust-Oleum Corporation ("Rust-Oleum") in the United States District Court for the Eastern District of New York (Mishler, J.), alleging common law claims for breach of warranty, strict products liability, and negligence. The crux of each cause of action was that Rust-Oleum failed to warn on the Primer's label - as compared with the Enamel label - that its vapors could cause flash fire. Milanese's wife also asserted a claim for loss of consortium.
In November 1999, upon completion of discovery, Rust-Oleum moved for summary judgment on the ground that the Milaneses' claims were preempted by the Federal Hazardous Substances Act (FHSA), 15 U.S.C. §§ 1261-1278, and certain regulations promulgated thereunder, 16 C.F.R. §§ 1500.1-.272. Milanese cross-moved for leave to amend the complaint to add a cause of action alleging that Rust-Oleum negligently failed to comply with the FHSA. In particular, the claim would allege that the Primer can failed to identify vapor flash fires as a "principal hazard" and failed to list the necessary "precautionary measures," in violation of 15 U.S.C. § 1261(p)(1).
To support his cross-motion, Milanese attached the deposition testimony of a Rust-Oleum employee, Larry West, a Safety and Industrial Hygiene Coordinator. West had admitted that: (1) the same propellant is used in both the Primer and Enamel; (2) the propellant, which is a vapor, is extremely flammable; and (3) vapors from the Primer (which include both the propellant contained in the liquid primer itself and the vapors that are emitted from the liquid once it has been sprayed onto a surface) may cause flash fires. When asked to explain why, unlike the Primer can, the Enamel can warned that both the liquid Enamel and its vapors were flammable and that the vapor may cause flash fires, West answered that the Enamel was in "a later generation can;" and he speculated that the Enamel may contain a raw material that makes it more flammable than the Primer. West contended that the very warning "EXTREMELY FLAMMABLE" on the Primer can implied that both the liquid primer and its vapors were flammable, and that the precautions regarding proper ventilation adequately protected the consumer from the flash fire hazard.
Milanese also attached the affidavit of Robert J. Cunitz, Ph.D., a certified Human Factors Psychologist. Mr. Cunitz stated that he had "expertise in the area of product design, product warnings[,] product safety information and safety labeling," and was familiar with the requirements mandated by the FHSA. Based on his review of Milanese's and West's testimony, videotapes of the spray cans at issue, transcribed text of the warnings and labels on each can, and Material Safety Data Sheets produced by Rust-Oleum, Mr. Cunitz concluded in his "expert opinion that Rust-Oleum Corporation did not properly comply with the provisions of the FHSA." Specifically, he considered the Primer can to be a misbranded product under the FHSA because the principal hazard associated with the product, namely that "vapor may cause flash fire," nowhere appeared on the product's label.
The district court granted Rust-Oleum's motion for summary judgment, denied Milanese's cross-motion to amend, and dismissed the complaint. Specifically, the court held that: (1) Mr. Cunitz's affidavit was inadmissible because he failed to submit proof of his qualifications to express an opinion as to whether the Primer can was "misbranded" within the meaning of the FHSA; (2) the Primer label was fully compliant with the FHSA; (3) Milanese's failure to warn claims were therefore preempted; and (4) granting leave to amend the complaint would be futile because the evidence offered by Milanese merely supported the argument that the Primer warning should have been more explicit - a claim that is preempted - rather than a claim that the warning failed to comply with the FHSA's requirements.
Milanese now appeals, arguing that the district court erred in granting summary judgment because West's deposition testimony created genuine issues of material fact. Milanese identified those issues as: (1) whether vapor flash fire is a principal hazard distinct from, and in addition to, the flammability of the liquid Primer; (2) if so, whether the Primer can identified this principal hazard and contained the necessary precautionary measures, as required by the FHSA, 15 U.S.C. § 1261; and (3) whether the Enamel can, when packaged together with the Primer can, misled the consumer into believing that vapor flash fire, while admittedly a danger when using the Enamel, was not a hazard when using the Primer. Milanese also contends that the district court erred by denying him leave to amend his complaint.
For the reasons set forth below, ...
To continue reading
Request your trial
-
Faryniarz v. Jose E. Ramirez, JR Chem, LLC
...[to amend] should, as the rules require, be 'freely given.'" Foman v. Davis, 371 U.S. 178, 182 (1962). See also Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001) ("Leave to file an amended complaint 'shall be freely given when justice so requires,' Fed. R. Civ.P. 15(a), and sho......
-
Alexander v. Westbury Union Free Sch. Dist
...claim creates no triable issue of fact, even if the amended complaint would state a valid claim on its face. See Milanese v. Rust–Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001); Stoner v. New York City Ballet Co., 2002 WL 523270, *23 n. 10 (S.D.N.Y. Apr. 8, 2002) (denying motion to amend to a......
-
Anghel v. Wadsworth Ctr.
...of the complaint is futile where it would fail to cure the deficiencies of the original complaint); see also Milanese v. Rust–Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001) (amendment futile where it would not survive a subsequent motion to dismiss); In re American Express Co. Shareholder Lit......
-
Giannone v. Deutsche Bank Securities, Inc.
...issue of fact and the defendant would be entitled to judgment as a matter of law under Fed.R.Civ.P. 56(c)." Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001); see Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 Under New York law, "[t]he terms of an at-will employ......