Arch Chemicals, Inc. v. Radiator Specialty Company, No. 3:2007cv01339 - Document 377 (D. Or. 2010)
Court Description: OPINION AND ORDER: Defendant's motion for summary judgment on plaintiffs failure to warn claim 232 is GRANTED with respect to the common or usual name and accompanying literature claims, and DENIED with respect to the other claims. Signed on 11/16/10 by Magistrate Judge Dennis J. Hubel. (kb)
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Arch Chemicals, Inc. v. Radiator Specialty Company Doc. 377 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF OREGON 10 PORTLAND DIVISION 11 12 13 ARCH CHEMICALS, INC., a Virginia corporation, and LEXINGTON INSURANCE CO., No. 14 15 07-1339-HU Plaintiffs v. OPINION AND ORDER 16 17 18 RADIATOR SPECIALTY COMPANY, a North Carolina corporation, Defendant. 19 20 21 22 M. Robert Smith Joseph Rohner IV Dennis N. Freed Ryan J. McClellan Smith Freed & Eberhard 111 S.W. Third Avenue, Suite 4300 Portland, Oregon 97204 23 24 25 26 Thomas D. Allen Amber E. Tuggle Shawn D. Scott Earl W. Gunn Mark R. Johnson Laura Voght Weinberg, Wheeler, Hudgins, Gunn & Dial 27 28 OPINION AND ORDER Page 1 Dockets.Justia.com 1 2 3 4 5 50 East Paces Ferry Road, Suite 3000 Atlanta, Georgia 30326 Attorneys for plaintiffs William G. Earle Paul R. Xochihua Jonathan Henderson Davis Rothwell Earle & Xochihua 1300 S.W. Fifth Avenue, Suite 1900 Portland, Oregon 97201 6 7 8 9 Daniel F. Mullin John A. McHugh Mullin Law Group 101 Yesler Way, Suite 400 Seattle, Washington 98104 Attorneys for defendant 10 HUBEL, Magistrate Judge: 11 This is a renewed motion by defendant Radiator Specialty 12 Company (RSC) for partial summary judgment on plaintiffs’ failure 13 to warn claim. At the time of the earlier motion, the court held 14 that a ruling on the issue of whether the label on EB-1 violated 15 the Federal Hazardous Substances Act (FHSA), 15 U.S.C. §§ 126116 1278, was premature, because there had as yet been no discovery 17 (doc. # 55). 18 Statutory Background 19 The FHSA requires warnings on labels for substances deemed 20 hazardous. 15 U.S.C. § 1261. The terms “extremely flammable,” 21 “flammable,” and “combustible,” as applied to any substance, 22 liquid, solid, or in a self-pressurized container, are defined by 23 regulation. 15 U.S.C. § 1261(l)(1). A manufacturer violates the 24 FHSA if it “introduces into interstate commerce ... any misbranded 25 hazardous substance.” 15 U.S.C. § 1263(a). A hazardous substance is 26 “misbranded” if its packaging is “in violation of” a regulation 27 28 OPINION AND ORDER Page 2 1 2 3 4 5 issued under the FHSA or if such substance ... fails to bear a label–-(1) which states conspicuously ... (E) an affirmative statement of the principal hazard or hazards, such as ‘Flammable,’ ‘Combustible,’ ‘Vapor Harmful,’ ... or similar wording descriptive of the hazard [and] (F) precautionary measures describing the action to be followed or avoided. ... 6 15 U.S.C. §§ 1261(p)(1)(E) and (F); 16 C.F.R. § 1500.127 (labels of 7 products with multiple hazards must contain “an affirmative 8 statement of each such hazard” and the “precautionary measures 9 describing the action to be followed or avoided for each such 10 hazard.”) 11 The Consumer Product Safety Act (CPSA), 15 U.S.C. § 2079(a) 12 authorized creation of the Consumer Product Safety Commission 13 (CPSC). 15 U.S.C. § 2051-81. Among the CPSC’s responsibilities is 14 interpretation and enforcement of the FHSA. The CPSC also monitors 15 potential hazards and patterns of defects associated with consumer 16 products, 15 U.S.C. § 1262, and promulgates new regulations to 17 address such additional potential hazards. 18 Pertinent Background Facts 19 RSC’s product, Engine-Brite (EB-1) is packaged in a self20 pressurized container and is “flammable” under the definition 21 and/or requirements of 16 C.F.R. §§ 1500.3(c)(6)(vii) and (viii). 22 Declaration of Larry Beaver ¶ 10. This designation is the result of 23 a flame extension test outlined in 16 C.F.R. § 1500.45, which 24 describes the methods used to determine the flammability rating for 25 the contents of self-pressurized containers. Declaration of Robert 26 Moro ¶ 8. The warning “FLAMMABLE” appears on the EB-1 label, along 27 28 OPINION AND ORDER Page 3 1 with particular instructions for handling and storage. Beaver 2 Declaration Exhibit A (EB-1 label). Because EB-1 contains 10% or 3 more by weight of petroleum distillates, by regulation, its label 4 must 5 SWALLOWED,” and “VAPOR HARMFUL.” 16 C.F.R. § 1500.14(b)(3)(ii). EB- 6 1 bears those warnings. Id. also contain the words “DANGER,” “HARMFUL OR FATAL IF 7 The labels on the EB-1 aerosol cans that were in the Davidson 8 car on the day of the accident in 2002 contained the following 9 language on the front display panel: 10 11 DANGER: HARMFUL OR FATAL IF SWALLOWED. EYE AND SKIN IRRITANT. VAPOR HARMFUL. FLAMMABLE. CONTENTS UNDER PRESSURE. READ PRECAUTIONS ON BACK PANEL.” 12 Beaver Declaration, Exhibit A. The back panel on the EB-1 aerosol 13 cans in the Davidson vehicle contained the following language: 14 PRECAUTIONS: Contains petroleum distillates. (CAS #6845634-6). Use in well-ventilated area. SEE STORAGE & HANDLING BELOW FOR IMPORTANT SAFETY INFORMATION. * * * STORAGE & HANDLING: Store in cool, dry area. Do not puncture or incinerate container or store above 120 F. Do not expose contents or put container in contact with heat, sparks, open flame or electrical connections or contacts. 15 16 17 18 Id. 19 Arch’s product, Sock It, is a strong oxidizer, and can create 20 hazardous conditions when it comes in contact with other products. 21 The Sock It box contains the following warning: 22 23 24 CHEMICAL HAZARDS: DANGER. Strong oxidizing agent. Add only into water. Contamination may start a chemical reaction. This reaction can give off heat, hazardous gases, and may cause a fire or explosion. DO NOT touch this chemical with a flame or burning material (like a lighted cigarette). 25 26 Keep all of these away from this product: moisture, garbage, dirt, chemicals including other pool chemicals, pool chlorinating compounds, household products, cyanuric 27 28 OPINION AND ORDER Page 4 1 2 3 acid pool stabilizers, soap products, paint products, solvents, acids, vinegar, beverages, oils, pine oil, dirty rags, or any other foreign matter. Vierra Declaration, Exhibit B. 4 RSC has proffered a declaration from Loran Davidson saying 5 that 1) he used EB-1 for 30 years, and knew EB-1 was a petroleum 6 product and was flammable; 2) he did not know a box of Sock It was 7 in the cargo area of the car the day of the accident or that Sock 8 It was a strong oxidizing household chemical; and 3) if he had read 9 additional warnings or a reference to flash fires on the EB-1 10 label, or a warning that the cap could come off, or a warning 11 relating to strong oxidizing household chemicals, or a reference to 12 “diesel fuel” instead of “petroleum distillate,” he still would 13 have purchased it the day of the accident. 14 Plaintiffs have offered evidence of other statements by Mr. 15 Davidson, to the Oregon State Police and to medical providers 16 indicating that Mr. Davidson did know that Sock It was in the cargo 17 area of the car. Declaration of Thomas Allen, Exhibits 1, 2, 3, 8. 18 Plaintiffs’ Failure to Warn Claim 19 The parties are in substantial agreement about what 20 plaintiffs’ failure to warn theories are. RSC characterizes them 21 as: 1) the Federal Hazardous Substances Act (FHSA) requires that 22 the principal display panel on the EB-1 can include the warning 23 VAPORS OR MISTS MAY CAUSE FLASH FIRES, because this is a “principal 24 hazard” under the FHSA; 2) the FHSA requires that the back label 25 include two additional warnings under the Storage and Handling 26 section: keeping the product away from strong oxidizing household 27 28 OPINION AND ORDER Page 5 1 chemicals, including swimming pool chemicals, and storing the 2 product in an upright position, keeping the cap attached to the can 3 to prevent accidental discharge; 3) the FHSA requires that the 4 label refer to the “common or usual name” of the contents, i.e., 5 diesel fuel, rather than “petroleum distillates;” and 4) RSC failed 6 to 7 literature” 8 required to be on the label, because the product information sheets 9 (PIS) about EB-1 available on RSC’s website do not contain that 10 information.1 See Report of Plaintiffs’ Expert William Kitzes, 11 Plaintiffs’ Response Memorandum, Exhibit B. comply with to the the FHSA product 12 requirement also that include all the of “accompanying the warnings Issues Presented 13 A threshold issue is whether determination of a product’s 14 compliance with the FHSA’s labeling requirements is a question of 15 law or fact. My conclusion is that it can be either one, depending 16 on the facts of the case. In this case, based on its facts and the 17 legal 18 requires resolving an issue of fact. authority discussed below, I believe the determination 19 The primary legal issue is whether, as RSC contends, the FHSA 20 only requires RSC to label EB-1 in accordance with the signal word 21 FLAMMABLE and the associated warning specified in the regulations, 22 or whether, as plaintiffs contend, RSC had a duty to provide 23 1 27 RSC’s motion described a fifth claim, that the Consumer Product Safety Act required RSC to notify the Consumer Product Safety Commission (CPSC) of any substantial hazard, but if there was such a claim, plaintiffs have dropped it because, as RSC pointed out in its opening brief, there is no private cause of action for such a claim. In re All Terrain Vehicle Litigation, 979 F.2d 755 (9th Cir. 1992). 28 OPINION AND ORDER Page 6 24 25 26 1 additional warnings about hazards known to RSC but not encompassed 2 within the FLAMMABLE warning. RSC’s position is that it complied 3 with the warnings mandated by the regulations and therefore has not 4 mislabeled its product. In its Concise Statement of Fact (CSF), RSC 5 states: 6 7 8 The CPSC construes the FHSA and its regulations to prohibit any additional principal hazards not found in the regulations from being displayed on consumer labels under its purview, since that information would be considered over-warning, which the CPSC considers a violation of the FHSA. 9 (Emphasis added). RSC has cited no legal authority for this 10 statement; it relies entirely on the Declaration of Robert Moro, 11 RSC’s expert witness. See RSC’s CSF ¶ 5; Moro Declaration ¶ 13.2 12 Statutory construction is a pure question of law and therefore a 13 matter for the court. See, e.g., United States v. McConney, 728 14 F.2d 1195, 1201 (9th Cir.1984) (en banc). Consequently, Mr. Moro’s 15 opinion has no evidentiary weight. 16 RSC also moves for summary judgment on the causation element, 17 arguing that the Davidsons’ injuries and deaths would not have been 18 prevented even if the warnings suggested by plaintiffs had been on 19 the cans. 20 Plaintiffs assert that besides flammability, EB-1 presents an 21 additional principal hazard, which is that when EB-1 is released in 22 23 2 24 25 26 27 28 The Moro Declaration says: The FHSA and its regulations prohibit any additional principal hazards not found in the regulations from being displayed on the EB-1 label, since that information would be considered over-warning consumers and would negate or disclaim any of the required label statements and be a violation of the FHSA. OPINION AND ORDER Page 7 1 an atomized spray, or mist, it can be ignited by a spark. They 2 argue that RSC’s failure to include a “flash fire” warning about 3 this principal hazard constitutes mislabeling the product.3 As 4 factual support for this argument, plaintiffs assert that RSC 5 provided a “flash fire” warning on an earlier version of EB-1; on 6 the exact EB-1 formula when sold in different quantities; on EB-1 7 as sold in Canada, under the trade name “Dunk Degreaser;” on bulk 8 containers 9 Concentrate Degreaser (SC-7)4; and on its products “Wire Dryer,” 10 “Liquid Wrench,” and “Cycle Chain Lube.” Pltfs CSF, ¶¶ 3, 4, 5, 15, 11 16. RSC does not deny these factual contentions. RSC’s Resp to 12 Pltfs CSF ¶ 4. of similar 13 products, EB-5 and EB-8; on its Super Standard 14 A party is entitled to summary judgment if the “pleadings, the 15 discovery and disclosure materials on file, and any affidavits show 16 that there is no genuine issue as to any material fact and that the 17 3 18 19 20 21 22 23 RSC asserts in its response to plaintiffs’ CSF that plaintiffs have not contended that there was a flame in the Davidsons’ car that ignited the fire, or that EB-1, as released from its container, can be ignited by a spark of any kind. RSC characterizes the “mist” plaintiffs’ experts refer to as the “mist” created when the pencil stream sprayed from a can of EB-1 hits a hard surface. RSC argues it is this hypothesized “mist” from a hypothesized “splash-back” that plaintiffs contend was ignited by a static electric spark in the Davidsons’ car. 4 27 However, according to the Second Supplemental Report of Robert Moro, the SC-7 and EB-8 products do not meet the definition of a”consumer product” because of their size, weight, etc., and therefore cannot meet the definition of a “hazardous substance” as defined in the FHSA. He states that they are industrial and commercial products that fall within the federal statutes and regulations enforced by the Occupational Safety and Hazard Administration (OSHA). Id. at p. 3. 28 OPINION AND ORDER Page 8 24 25 26 1 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 2 56(c)(3). A genuine dispute arises "if the evidence is such that a 3 reasonable jury could return a verdict for the nonmoving party." 4 State of California v. Campbell, 319 F.3d 1161, 1166 (9th Cir. 5 2003). Where the record taken as a whole could not lead a rational 6 trier of fact to find for the non-moving party, there is no genuine 7 issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 8 475 U.S. 574, 587 (1986). 9 On a motion for summary judgment, the court must view the 10 evidence in the light most favorable to the non-movant and must 11 draw all reasonable inferences in the non-movant's favor. Clicks 12 Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 13 2001). The court may not make credibility determinations or weigh 14 the evidence. Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 15 (1990). "Credibility determinations, the weighing of the evidence, 16 and the drawing of legitimate inferences from the facts are jury 17 functions, not those of a judge." Reeves v. Sanderson Plumbing 18 Products, Inc., 530 U.S. 133, 150 (2000). Where different ultimate 19 inferences 20 Sankovich v. Ins. Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981). 21 Discussion 22 23 1. may be drawn, summary judgment is inappropriate. Does the FHSA prohibit manufacturers from including warnings other than those mandated by statute or regulation? 24 The FHSA provides that a hazardous substance is “misbranded” 25 if its packaging or labeling “is in violation of an applicable 26 regulation” issued under the Act, “or if such substance ... fails 27 to bear a label–1) which states conspicuously ... (E) an affirmative 28 OPINION AND ORDER Page 9 1 statement of the principal hazard or hazards, such as ‘Flammable,’ 2 ‘Combustile,’ ‘Vapor Harmful’ ... or similar wording descriptive of 3 the hazard. ...” 15 U.S.C. §§ 1261(p)(1)(E) and (F). (Emphasis 4 added). The regulations require labels of products with multiple 5 hazards to contain “[a]n affirmative statement of each such hazard; 6 [and] 7 followed or avoided for each such hazard.” (Emphasis added). the precautionary measures describing the action to be 8 I find nothing in the language of the statute or the regulation 9 to support RSC’s contention that the FHSA and its regulations 10 prohibit 11 regulations from being displayed on consumer labels. RSC has not 12 directed the court to any such language and has not cited the court 13 to any legal authority that supports its contention. The statute and 14 the regulation clearly contemplate the possibility of more than one 15 principal hazard. I disagree with RSC’s assertion that, as a matter 16 of law, RSC’s compliance with the required language for a product 17 whose principal hazard is flammability necessarily requires the 18 conclusion that EB-1 has no other principal hazard and therefore was 19 not required to carry any additional warnings. any additional principal hazards not found in the 20 21 2. Is compliance with FHSA labeling requirements an issue of fact or a matter of law? 22 RSC asserts that the question of whether a label complies with 23 the requirements of the FHSA is a question of law, to be resolved 24 by the court, citing Pennsylvania Gen. Ins. Co. v. Landis, 96 F. 25 Supp.2d 408, 412 (D.N.J. 2000)(question of whether label complies 26 with the requirements of FHSA a question of law) and Mause v. Global 27 Household Brands, 2003 WL 22416000 at *4 (E.D. Pa. Oct. 20, 28 OPINION AND ORDER Page 10 1 2003)(“It is for the Court, and not an expert, to decide whether the 2 [FHSA] is violated.”) 3 Plaintiffs counter with Milanese v. Rust-Oleum Corp., 244 F.3d 4 104 (2d Cir. 2001)(finding a material issue of fact as to whether 5 the danger of flash fire caused by vapors was a primary hazard 6 separate and distinct from flammability of the liquid product). 7 The cases cited by RSC are readily distinguishable from this 8 case; Milanese is on point. In Landis, the court held, as a matter 9 of law, that a lacquer thinner label which said: “EXTREMELY 10 FLAMMABLE LIQUID AND VAPOR ... Vapors may ignite explosively. VAPORS 11 MAY CAUSE FLASH FIRE ... Turn off and extinguish all flames and 12 pilot lights on stoves, heaters, water heaters, etc. Disconnect all 13 electric motors and other sources of ignition during use and until 14 all vapors are gone,” warned of vapor flash fire as a principal 15 hazard apart from the flammability of the liquid product. 16 The Mause case dealt with the issue of whether a human factors 17 psychologist could offer an opinion that a label violated the FHSA. 18 The court held that the expert was not qualified to give an opinion 19 on whether the product was misbranded under the FHSA, citing 20 Milanese, in which the court had excluded the same expert for the 21 same reason. It was this situation that prompted the court to say 22 that it was “for the Court, and not an expert,” to “decide whether 23 the law is violated.” 24 In Milanese, the court concluded that because plaintiff had 25 produced an expert who testified about a specific risk of vapor 26 flash fire associated with a can of primer, the possibility of an 27 additional primary hazard associated with vapor flash fires created 28 OPINION AND ORDER Page 11 1 a genuine issue of material fact, precluding the court from 2 concluding as a matter of law that the presence of a warning that 3 the liquid was flammable, while the vapor was “harmful,” was 4 sufficient to comply with the requirements of the FHSA. 5 Plaintiffs argue that they have generated an issue of material 6 fact about whether an atomized release of EB-1 creates a hazard 7 separate and distinct from the flammability hazard posed by the 8 liquid product. They rely on testing done by experts James Kittrell 9 and Paul Singh, (see Kittrell deposition, Pltfs Response, Exhibit 10 4 passim, and Singh deposition, Pltfs Response, Exhibit 5 passim); 11 the evidence cited above that RSC has put such warnings on the same 12 or similar products; and the report of their expert, William Kitzes, 13 who opines that the can of EB-1 should have displayed a warning that 14 “VAPORS OR MIST CAN CAUSE FLASH FIRE.” Plaintiffs’ Response, Exhibit 15 2. 16 Plaintiffs’ evidence aligns this case with Milanese. 17 Accordingly, I conclude that the question of whether RSC complied 18 with the requirements of the FHSA is an issue of fact on this 19 record. 20 3. 21 RSC asserts that this warning is based on testing plaintiffs’ 22 experts performed for this action, which generated flash fires under 23 certain conditions. Kitzes Report at p. 5-6; Moro Declaration, 24 Exhibit B. A warning that vapor or mist may cause flash fires is 25 required by rule for highly volatile contact adhesives that are 26 “extremely flammable” and have a flashpoint at or below 20 degrees. 27 16 C.F.R. § 1500.133. RSC argues that EB-1 does not contain a 28 OPINION AND ORDER Page 12 “Vapors or Mist May Cause Flash Fires” 1 contact adhesive, is not “extremely flammable” as defined in the 2 regulations, and has a flashpoint of more than 100 degrees. RSC’s 3 CSF ¶¶ 9-11. 4 Plaintiffs concede that the regulation dealing with contact 5 adhesives does not apply to EB-1, but argue that, based on the facts 6 of this case, flash fires caused by vapors or mist are a principal 7 hazard of EB-1 and should have been warned against. 8 RSC contends that it is not reasonable to require such a 9 warning on EB-1 because doing so require the court to “second-guess” 10 the agency’s decision to require this warning only for extremely 11 flammable materials that vaporize readily at room temperature. 12 Further, RSC argues, the existing regulations are detailed and 13 comprehensive, so that plaintiffs’ argument that the additional 14 warning is required for EB-1 goes against the very nature and 15 purpose of the regulations and the FHSA’s intent of providing 16 uniform 17 manufacturer’s compliance with a literal reading of the regulations 18 is sufficient, and that is unfair to place a manufacturer “at the 19 whim of the creativity of lawyers and litigation experts to create 20 their own theories and testing to fill in the ‘gaps’ of the 21 regulations and develop particular hazards designed to apply to 22 particular 23 involved.” And finally, RSC argues that the warnings currently on 24 the EB-1 cans adequately warn consumers of the risk of fire if the 25 can or its contents is near heat, sparks or open flame; EB-1 is not 26 misbranded merely because it does not also refer to “flash fires.” 27 Plaintiffs challenge RSC’s underlying premise, which is that 28 labeling requirements. incidents in OPINION AND ORDER Page 13 which Third, their RSC clients asserts were that a allegedly 1 manufacturers are not required to provide warnings that are not 2 specified in the regulations applicable to the product at issue. 3 They point out that 1) CPSC regulations do not define “principal 4 hazards;” and 2) nothing in the language of the regulations limits 5 the affirmative statement of principal hazards to the examples 6 provided in the text of the regulation. Plaintiffs’ expert, Kitzes, 7 cites a CPSC Advisory Opinion which provides: “Except for the signal 8 word, the FHSA generally does not require particular label language 9 and permits manufacturers to decide on the specific language.” Pltfs 10 Response, Exhibit 17. Plaintiffs also point to their evidence that 11 RSC did include warnings about vapor and flash fires on other EB-1 12 products and similar products. 13 RSC relies on Moss v. Parks Corp., 985 F.2d 736, 740 (4th Cir. 14 1993). In that case, plaintiff was burned while using paint thinner 15 containing mineral spirits. The paint thinner ignited because of a 16 kerosene heater in another room across the hall. Plaintiff asserted 17 that defendant violated the FHSA because the paint thinner’s label 18 was not sufficient to alert a consumer to the possibility of a flash 19 fire from mist or vapor coming into contact with the pilot light of 20 the kerosene heater. The court held that the label complied with the 21 FHSA as a matter of law, because it contained all the warnings 22 required by the regulation governing products with mineral spirits. 23 The court noted that the labeling requirements for mineral spirits 24 required 25 cautionary statements on their labels,” such as “signal words,” 26 “affirmative statements of the hazards associated with a hazardous 27 substance,” and “statements of precautionary measures to follow.” 28 OPINION AND ORDER Page 14 inter aia, that “hazardous substances bear certain 1 985 F.2d at 740, citing 16 C.F.R. § 1500.121(a)(1). Signal words 2 include “DANGER,” “WARNING,” OR “CAUTION.” Id., citing 16 C.F.R. § 3 1500.121(a)(2)(vi). Examples of statements of principal hazards 4 given in the regulations included “HARMFUL OR FATAL IF SWALLOWED,” 5 “VAPOR HARMFUL,” “FLAMMABLE,” AND “SKIN AND EYE IRRITANT.” Id., 6 citing 16 C.F.R. § 1500.121(a)(2)(vii). 7 The court held that the “principal hazard associated with 8 mineral spirits is combustibility,” so that the paint thinner label 9 containing the warning “COMBUSTIBLE” “satisfies the regulation’s 10 mandate of identifying the principal hazard associated with the 11 product.” 985 F.2d at 742. The court rejected plaintiff’s argument 12 that a more complete warning, such as “in order to use the product 13 safely, it must never be used near an open flame.” Id. 14 Plaintiffs rely on the Milanese case. That case involved two 15 cans, one of primer and the other of enamel. The two products were 16 packaged together. 244 F.3d at 107. The can of enamel carried a 17 comprehensive warning of flammable liquid and vapor, including a 18 statement that the vapor could cause flash fire. The can of primer, 19 however, carried only a warning that the contents were extremely 20 flammable, with harmful vapor. Id. Plaintiff produced an expert who 21 testified about a specific risk of vapor flash fire associated with 22 the use of the primer “as an additional hazard distinct from the 23 flammability of the liquid product.” Id. at 112 (emphasis in 24 original). 25 The manufacturer moved for summary judgment on the ground that 26 plaintiff’s claims complied with the FHSA as a matter of law. Id. 27 at 110-11. The court held that there existed a material issue of 28 OPINION AND ORDER Page 15 1 fact as to whether the danger of 2 primary hazard that was separate and distinct from the flammability 3 of the liquid product. Id. at 112. “Assuming that flash fire from 4 the primer vapor is a hazard distinct from the flammability of the 5 liquid product, we cannot hold that, as a matter of law, the Primer 6 can fully complies with the FHSA.” Id. 7 court concluded that genuine issues of material fact existed on 1) 8 whether vapor flash fire was a principal hazard distinct from, and 9 in addition to, the flammability of the liquid primer; and 2) if so, 10 whether the primer can identified this principal hazard and the 11 necessary precautionary measures. Id. at 113. flash fire caused by vapor was a (emphasis in original). The 12 RSC argues that Milanese is distinguishable on the ground that 13 it involved two differently labeled cans, with the court agreeing 14 with the plaintiff that a vapor flash fire warning on the enamel 15 can, but not on the primer can, could have suggested to a consumer 16 that vapor flash fire was not a hazard of the primer. I do not find 17 this argument persuasive. The court specifically addressed the 18 question of whether the primer can should have carried a warning 19 about an additional primary hazard, i.e., the risk of flash fire 20 from the vapor, and concluded that summary judgment was precluded 21 because of a genuine issue of material fact as to whether vapor 22 flash fire was a principal hazard of the primer. 23 RSC also argues that “to the extent Milanese can be read as a 24 holding that a plaintiff may avoid summary judgment by arguing that 25 a manufacturer must warn against other hazards ... that are not 26 specifically 27 incorrectly applied the law.” Memorandum, p. 13. RSC contends that 28 OPINION AND ORDER Page 16 contained in the FHSA regulations, the court 1 the correct analysis is found in Moss. 2 The Milanese court distinguished Moss on the ground that in the 3 latter case, plaintiff “principally argued that the statement of 4 precautionary measures on the product was not sufficiently explicit 5 or detailed, rather than that it failed to warn of the principal 6 hazard 7 combustibility of the product.” 244 F.3d at n. 1. I agree with the 8 Milanese court’s analysis, and conclude that Milanese is more 9 directly on point with this case. I conclude that nothing precludes 10 plaintiffs from making a good faith allegation of an additional 11 “principal hazard,” and that a genuine issue of material fact 12 precludes summary judgment for RSC on this issue. of vapor flash fire as distinct from the general 13 4. 14 RSC asserts that the regulations contain no requirements to 15 warn about oxidizers or the need to keep the cap tightly on the can, 16 and that the court should not “rewrite the regulations to include 17 such requirements.” Plaintiffs counter that RSC knew EB-1 was 18 incompatible with strong oxidizers, specifically including chlorine 19 and calcium hypochlorite, Beaver dep., Pltfs Resp Exhibit 19 at 20 219:10-15. They also argue that RSC’s expert Moro has acknowledged 21 that if it were foreseeable that EB-1 might come into contact with 22 a strong oxidizer, it would be “appropriate” to include a storage 23 and handling instruction warning the user to keep it away from 24 strong oxidizers. Storage and handling warnings 25 This issue presents issues of fact about what RSC knew about 26 the combination of EB-1 and strong oxidizers, and whether the 27 potential for combination required a handling and storage warning. 28 OPINION AND ORDER Page 17 1 5. 2 RSC asserts that the Davidsons were not using EB-1 by spraying 3 it near an open flame, but merely transporting it in a plastic bag. 4 Consequently, it argues, plaintiffs cannot prove that the allegedly 5 inadequate warnings were causally linked to the Davidsons’ injuries 6 and deaths. RSC cites plaintiffs’ expert Kitzes, who says in the 7 last sentence of his report, 8 Causation 10 It is my understanding that Loran Davidson had previously read the label on the cans of EB-1. Had the relevant information been provided on its label by RSC, it appears more likely than not that alternative means to transport the EB-1 would be used. 11 RSC argues that this conclusion is completely unsupported: 1) the 12 Davidsons were not spraying EB-1 on the day in question, so there 13 is no objective reason why a reference to “flash fires” from “vapor” 14 or “mist” on the label would have changed history on the day of the 15 accident. RSC relies on the Declaration of Loran Davidson, in which 16 Mr. Davidson says that he had used EB-1 for more than 30 years and 17 already knew it was flammable, and that he was not aware that Sock 18 It was in the car or that it was an oxidizing agent. Davidson 19 Declaration ¶¶ 4, 5, 6. Plaintiffs have, as discussed above, 20 submitted evidence that Davidson has on some occasions contradicted 21 these statements. 9 22 Nevertheless, RSC argues that a warning about “strong oxidizing 23 household chemicals” on the label would not have changed anything. 24 Similarly, any reference to the possibility that the cap on EB-1 25 might come off would not have caused Mr. Davidson to change his 26 conduct. Id. at ¶ 7. 27 28 Plaintiffs argue that Mr. Davidson himself has testified that OPINION AND ORDER Page 18 1 he now has altered his conduct in handling EB-1, since learning that 2 Oregon investigators found that EB-1 had released from its packaging 3 and contributed to the fire. He testified that he now keeps EB-1 4 away from other products and uses caution in his handling of the 5 product. Further, plaintiffs argue, Mr. Davidson testified that he 6 did not know EB-1 had diesel fuel in it, although he knew diesel 7 fuel was flammable. See Davidson dep., Pltfs Resp Exhibit 22 46:1- 8 14. 9 It is not appropriate to weigh these competing arguments or 10 resolve them on summary judgment unless I can conclude no reasonable 11 juror could differ on their resolution. 12 issues of material fact about causation that must be decided by the 13 jury. 14 I conclude that there are Conclusion 15 RSC’s motion for summary judgment on plaintiffs’ failure to 16 warn claim (doc. # 232) is GRANTED with respect to the common or 17 usual name and accompanying literature claims, and DENIED with 18 respect to the other claims. 19 20 IT IS SO ORDERED. 21 22 Dated this 16th day of November, 2010. 23 /s/ Dennis J. Hubel 24 ___________________________ 25 Dennis James Hubel United States Magistrate Judge 26 27 28 OPINION AND ORDER Page 19
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