Wagoner v. Exxon Mobil Corp., Civil Action No. 09–7257.

• Citation: 832 F.Supp.2d 664
• Decision Date: 03 June 2011
• Docket Number: Civil Action No. 09–7257.
• Parties: James WAGONER, JR. et al. v. EXXON MOBIL CORPORATION et al.
• Court: U.S. District Court — Eastern District of Louisiana

832 F.Supp.2d 664

James WAGONER, JR. et al.

v.EXXON MOBIL CORPORATION et al.

Civil Action No. 09–7257.

United States District Court,

E.D. Louisiana.

June 3, 2011.

L. Eric Williams, Jr., Williams Law Office, LLC, Amber E. Cisney, Richard Julius Fernandez, Richard J. Fernandez, LLC, Glenn Charles McGovern, Glenn C. McGovern, Attorney at Law, Metairie, LA, for James Wagoner, Jr. et al.

Gary A. Bezet, Allison N. Benoit, Barrye Panepinto Miyagi, Carol L. Galloway, Gayla M. Moncla, Gregory M. Anding, Janice M. Culotta, Robert E. Dille, Kean Miller, Vionne M. Douglas, Carleton Loraso, LLC, Baton Rouge, LA, Louis C. Woolf, M. Denise Moretz, Woolf, McClane, Bright, Allen & Carpenter, PLLC, Knoxville, TN, Tynan Buthod, Baker Botts, LLP, Houston, TX, for Exxon Mobil Corporation et al.

ORDER & REASONS

ELDON C. FALLON, District Judge.

Before the Court is a Motion for Summary Judgment (Rec. Doc. No. 101) filed by Defendant Radiator Specialty Co. The Court has reviewed the submitted memoranda and the applicable law. For the following reasons, the motion is granted in part and denied in part.

I. BACKGROUND AND PRESENT MOTION

This case arises out of the death of James Wagoner, Jr. due to alleged deficiencies in the testing, design, labeling, and distribution of products that contain benzene. In her Complaint, Plaintiff Macie Wagoner, who filed suit on behalf of herself and as the legal representative of the decedent, avers that as part of his work from the 1970s until 2008, the decedent frequently came in contact with products containing benzene and that as a result, he was chronically exposed to the toxic substance. Among the products that the decedent allegedly used is Liquid Wrench, which is manufactured and distributed by Defendant Radiator Specialty Co. Plaintiff alleges that as a result of chronic exposure to benzene, the decedent suffered from and eventually died of multiple myeloma. In her Complaint, Plaintiff has asserted a number of claims against Defendant, including ones alleging design and warning defects. In its Answer, Defendant has denied liability.

Defendant has now filed a Motion for Summary Judgment (Rec. Doc. No. 101). Defendant contends that all of Plaintiff's claims fail as a matter of law because they are preempted under the Federal Hazardous Substances Act (FHSA), 15 U.S.C. § 1261 et seq. Defendant argues that because Liquid Wrench is “intended, or packaged in a form suitable, for use in the household,” id. §§ 1261(p), 1262(b), it falls within the regulatory scheme of the FHSA. That statute, Defendant notes, preempts any state-law claim that seeks to impose labeling requirements different from those prescribed by the FHSA. Defendant asserts that its Liquid Wrench label complies with the FHSA and that accordingly, Plaintiff's claims fail on the merits. Alternatively, Defendant states, to the extent that they seek to impose different labeling requirements, Plaintiff's claims are preempted.

Plaintiff opposes Defendant's motion. First, Plaintiff argues that there is a genuine issue of fact as to whether the Liquid Wrench product used by the decedent is “intended, or packaged in a form suitable, for use in the household.” Id. Second, Plaintiff asserts that there is also a genuine issue of fact as to whether the Liquid Wrench product complied with the various labeling requirements of the FHSA. According to Plaintiff, the Liquid Wrench product does not warn of its “principal hazard[s],” does not describe “precautionary measures,” does not specify “instructions for handling,” does not provide “conspicuous[ ]” warnings, and contains statements that negate the warnings that do appear on the label. Id. § 1261(p)(1); 16 C.F.R. § 1500.122. Plaintiff asserts that in light of all of this, summary judgment as to her failure-to-warn claim is not appropriate at this juncture. Finally, Plaintiff argues that the FHSA does not reach the non-warning claims that she has asserted and that accordingly, Defendant's attempt to obtain summary judgment as to those claims should be rejected.

II. LAW AND ANALYSISA. Standard of Review

A district court can grant a motion for summary judgment only when the “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When considering a motion for summary judgment, the district court “will review the facts drawing all inferences most favorable to the party opposing the motion.” Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986). The court must find “[a] factual dispute ... [to be] ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party ... [and a] fact ... [to be] ‘material’ if it might affect the outcome of the suit under the governing substantive law.” Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir.1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

“If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.” Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir.1995). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. “If the evidence is merely colorable, or is not significantly probative,” summary judgment is appropriate. Id. at 249–50, 106 S.Ct. 2505 (citations omitted).

B. Preemption Under the FHSA1. Overview of the FHSA

Congress enacted the Federal Hazardous Substances Labeling Act in 1960 in order to “provide a nationally uniform requirement for adequate cautionary labeling of packages of hazardous substances.” H.R. Rep. 86–1861, at 1 (1960), reprinted in 1960 U.S.C.C.A.N. 2833, 2833. As enacted, the statute prohibited the “introduction into interstate commerce of any misbranded package of a hazardous substance.” Pub.L. No. 86–613, § 4(a), 74 Stat. 372, 375 (codified at 15 U.S.C. § 1263(a)). The term “misbranded package of a hazardous substance” was defined as one that failed to comply with a number of labeling requirements. See id. § 2(p), 74 Stat. at 374 (codified at 15 U.S.C. § 1261(p)). The agency in charge of implementing the statute was authorized to promulgate “additional label requirements” if it found that the minimum label requirements were not adequate to protect public health and safety. Id. § (3)(b), 74 Stat. at 374 (codified at 15 U.S.C. § 1262(b)).

In 1966, Congress amended the statute. First, Congress added a new provision prohibiting the introduction into interstate commerce of “banned hazardous substance[s].” Pub.L. No. 89–756, § 3(b), 80 Stat. 1303, 1305 (codified at 15 U.S.C. § 1263(a)). The statute defined that term as including any substance that, despite complying with the statute's labeling requirements, presents such a hazard that public health “can be adequately served only by keeping such substance ... out of the channels of interstate commerce.” Id. § 3(a), 80 Stat. at 1304 (codified at 15 U.S.C. § 1261(q)(1)). Second, Congress added an express preemption clause, which declared that “it is the intent of the Congress to supersede any and all laws of the States and political subdivisions thereof insofar as they ... provide for the precautionary labeling of [a hazardous substance] which differs from the requirements” of the statute. Id. § 4(a), 80 Stat. at 1305 (codified at 15 U.S.C. § 1261 note). Third, Congress deleted the word “Labeling” from the name of the statute, rendering it the FHSA. Id. § 5, 80 Stat. at 1305 (codified at 15 U.S.C. § 1261 note).

In 1976, Congress adopted additional changes to the FHSA. First, Congress restyled the existing express preemption clause. As amended, the provision states: “if a hazardous substance ... is subject to a cautionary labeling requirement [under Section 2(p) or Section 3(b) of the act], no State ... may establish or continue in effect a cautionary labeling requirement applicable to such substance ... unless such cautionary labeling requirement is identical to the labeling requirements [under the act].” Pub.L. No. 94–284, § 17(a), 90 Stat. 503, 510 (codified at 15 U.S.C. § 1261 note (b)(1)(A)). Second, Congress added a separate express preemption clause regarding banned hazardous substances. That provision states that “if a requirement is established” with respect to a banned hazardous substance, “no State ... may establish or continue in effect a requirement applicable to such substance ... unless such requirement is identical to the requirement established [under the act].” Id., 90 Stat. at 511 (codified at 15 U.S.C. § 1261 note (b)(1)(B)).

As noted above, Defendant contends that Plaintiff's claims are preempted under the FHSA. In particular, as Defendant does not argue that its Liquid Wrench product contains a banned hazardous substance, it has advanced the notion that the labeling preemption provision works to defeat Plaintiff's claims. Plaintiff has responded to Defendant's argument with three assertions. First, Plaintiff suggests that there is a genuine issue of fact as to whether the FHSA is applicable because the Liquid Wrench product was not “intended, or packaged in a form suitable, for use in the household.” 15 U.S.C. §§ 1261(p), 1262(b). Second, Plaintiff contends that even if FHSA applies, there are genuine issues of fact as to whether the Liquid Wrench product complied with the statute's labeling requirements. And third, Plaintiff suggests that the FHSA does not reach her non-warning claims and that accordingly, summary judgment as those claims is inappropriate.¹ The Court will discuss these issues in turn.

2. The applicability of the FHSA

The parties dispute whether there is a genuine issue of fact as to whether the Liquid Wrench product falls within the...