Opposition Brief — Salazar v. Whink Products Co.

g4-1228 | Buprens Gaur, US. |

No. - FILED |

FEB 10 1995 |

In The |

. OFFICE OF GHE Cloee |

Supreme Court of the Unite States—----

—~>

October Term, 1994

SANDRA SALAZAR,

Petitioner,

vs.

WHINK PRODUCTS CO., an Iowa Corporation,

Respondent.

On Petition for Writ of Certiorari to the

Colorado Supreme Court

RESPONDENT’S BRIEF IN OPPOSITION

J. RONALD VOSS

Counsel of Record

AMELIA L. KLEMME

RETHERFORD, MULLEN,

JOHNSON & BRUCE

Attorneys for Respondent

P.O. Box 1580

415 South Sahwatch

Colorado Springs, CO 80901-1580

(719) 475-2014

“ngs (800) 3 APPEAL + (800) 5 APPEAL « (800) BRIEF 21

QUESTIONS PRESENTED FOR REVIEW

Whether the preemption provision of the Federal Hazardous

Substances Act, 15 U.S.C. § 1261 et seq. bars Petitioner’s failure

to warn tort claims against Respondent, a manufacturer whose

product label undisputedly complied with the labeling

requirements of the Federal Hazardous Substances Act.

Whether, on Petitioner’s Petition for Rehearing, the

Colorado Court of Appeals abused its discretion in not remanding

this matter to the trial court so that Petitioner could further amend

her Amended Complaint to assert a new and different theory of

relief against the Respondent.

TABLE OF CONTENTS

Page

Questions Presented forReview ................200. i

BRD OTRONNS 56 nctenkeccnesscaeeeeeeee ii

TROIS. «os 0:05 4ennkeseeneeeleeeee ili

I TE ae 1

Statementofthe Case ........ccccccccccccccescccss 1

Stage at Proceedings Federal Questions Were Raised .... 2

Reasons for Denyingthe Writ ..................00.. 2

I. The Colorado Court of Appeals, consistent with the

other jurisdictions which have addressed this issue,

correctly held that the Federal Hazardous

Substances Act preempts Petitioner’s failure to

warn claims against the Respondent whose label

CUE 5c kncecnccedsbsuneusons 2

II. The Colorado Court of Appeals did not abuse its

discretion in denying Petitioner’s request for

remand contained in her Petition for Rehearing. .. 7

CO 6 kk. oka 0oensnee eee 11

|

|

iii

Contents

Page

TABLE OF CITATIONS

Cases Cited:

A.O. Smith Harvestore Products, Inc. v. Kallsen, 817 P.2d

1038 (Colo. 1991) ......--e eee eeee Terr 6,9

Alzado v. Blinder, Robinson & Co., Inc., 752 P.2d 544

(Colo. 1988) ...... 0.2 e cece reece eer eeeeeeeceees 7

Arkansas-Platte & Gulf Partnership v. Van Waters &

George, Inc., 981 F.2d 1177 (10th Cir. 1993), cert.

denied, __ U.S. _, 114 S. Ct. 60, 126 L. Ed. 2d 30

Pee re 4

Chemical Specialties Manufacturers Association, Inc. v.

Clark, 482 F.2d 325 (Sth Cir. 1973) ....-----+eeeee> 4,8

Cipollone v. Liggett Group, Inc. __ U.S. _.. 112 3. CG.

2608, 120 L. Ed. 2d 407 (1992) ....----- eee eee 3,4,5,7,10

Cosmetic, Toiletry and Fragrance Association, Inc. v. State

of Minnesota, 440 F. Supp. 1216 (D. Minn. 1977),

aff'd, 575 F.2d 1256 (8th Cir. reer 4,8

Flader v. Simonsen, 148 Colo. 480, 366 P.2d 678 (1962) . 7

Gibbons v. Ogden, 9 Wheat. 1,22 U.S. 1,6L. Ed. 23 (1824)

AM Set EEN IES PSC TOT eT COTS eee 3

iv

Contents

Independent Wireless Telegraph Co. v. Radio Corporation

of America, 270 U.S. 84, 46 S. Ct. 224, 70 L. Ed. 481

I 6660 ed wide an edas one eeae ee

Jenkins v. James B. Day & Co., 634 N.E. 2d 998 (Ohio

i EE ee ee ee a rE teehee ata

Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342

U.S. 180, 72S. Ct. 219, 96 L. Ed. 200(1952) ........

King v. E.I. Dupont De Nemours & Co., 996 F.2d 1364 (1st

Ce 45.0 650d 50 se edaeaen seek eens

MacDonald v. Monsanto Co., 27 F.3d 1021 (Sth Cir. 1994)

eee eee eeeeeeeeeeeeeeeeeeeeeveeeeeeeeeeeeeeeeee

M’Culloch v. State, 4 Wheat. 316, 17 U.S. 316, 4L. Ed. 579

be PET SE CUTE SUTTER CTE OL CTC OTE P CTO CTCe

Miller v. East Denver Municipal Irrigation District, 83

Rs I SP BPS CNOED 6 ohn cee de eerectaness

Minnich v. Gardner, 292 U.S. 48, 54 S. Ct. 567, 78 L. Ed.

IS Gs oc aw gate ode wo a eek es

Moss v. Parks Corp., 985 F.2d 736 (4th Cir. 1993), cert.

denied, __ U.S. __, 113 S. Ct. 2999, 125 L. Ed. 2d 693

PRISE NP nt ere Speen eran roy pee

Neely v. Martin K. Eby Const. Co., 386 U.S. 317, 87 S. Ct.

re me & f rae

Page

Tee Ce ee Ws

v

Contents

Papas v. Upjohn Company, 985 F.2d 516 (11th Cir. 1993),

cert. denied, __ U.S. __, 1148. Ct. 300, 126 L. Ed. 2d

PAB (GDS) oc ccccccscccccccvccsccsscccccveses

People v. Gaskins, 825 P.2d 30 (Colo. | ee eee

Perkins v. Flatiron Structures Co., 849 P.2d 832 (Colo.

App. 1992) .....ccrcscccccccseccrsccccccscsess

Salazar v. Whink Products Co., 881 P.2d 431 (Colo. App.

COE | iin nndgeancsdensenas et 59 sh anra renee eeee?

Shaw v. Dow Brands, Inc., 994 F.2d 364 (7th Cir. 1993) ..

State v. A.J. Seier, 871 S.W. 24611 (Mo. App. 1994) ....-.

Seven Lakes Reservoir Co. v. New Loveland & The Greeley

Irrigation Land Co., 40 Colo. 382, 93 P. 485 (1907)

rer rrrr rrr rere y rrr cs oly,

Statute Cited:

15 U.S.C. § 1261 et seg. «0... cece e rere eee r ee rteeeees

Other Authorities Cited:

1969 CigaretteAct ........eeee eee eeeeeeeeeeeeeees

Page

i, 1

vi

Contents

Page

APPENDIX

Appendix A — Opinion of the District Court, City and

County of Denver, Colorado Dated September 14, 1992

ETETUTETTL TT CET Tee ee errr ee la

Appendix B — Decision of Colorado Court of Appeals

ND 8s PRONE 60.5650 40d pee Seuke 4habkesae> 15a

1

OPINIONS BELOW

1. The trial court’s opinion upon Respondent’s Motion for

Summary Judgment appears as Appendix A.

2. The Colorado Court of Appeals’ decision of Salazar v.

Whink Products Co., 881 P.2d 431 (Colo. App. 1994) appears as

Appendix B.

STATEMENT OF THE CASE

This personal injury action brought by Petitioner against

Respondent Whink Products Company (improperly captioned as

“Whink Products Co.”) arises out of Petitioner’s misuse of

Respondent’s product, Whink Rust Stain Remover. It is

undisputed that this product contained warnings in compliance

with he Federal Hazardous Substances Act, 15 U.S.C. § 1261 et

seq. These warnings-advised Petitioner not to use the product

without heavy duty gloves and that the product could cause

severe burns which may not be immediately painful or visible.

Petitioner admitted that she read and understood these warnings

but then chose to ignore them, thereby causing her own injuries. It

is undisputed that Petitioner’s common law tort claims against

Respondent were solely based on the alleged inadequacy of the

Respondent’s warnings, even though said warnings complied

with the Federal Hazardous Substances Act. :

At the trial court, Respondent Whink moved for summary

judgment on two issues: (1) misuse and (2) federal preemption.

The trial court entered summary judgment in favor of Respondent

on its misuse defense. On appeal, the Colorado Court of Appeals

upheld the trial court’s ruling on the grounds that Petitioner's

failure to warn claims were preempted by the Federal Hazardous

Substances Act, 15 U.S.C. § 1261 ef seq. and Respondent’s

undisputed compliance therewith.

2

STAGE AT PROCEEDINGS FEDERAL QUESTIONS

WERE RAISED

Petitioner asserts that the issue of preemption was first raised

by Respondent in its Motion for Summary Judgment filed

January 7, 1992. This is in error.

A review of the record establishes that Respondent

specifically raised the doctrine of federal preemption on June 21,

1991 in its Supplements and Amendments to its Disclosure

Certificate. (Vol. 1, pp. 104-130). Thereafter, on or about

September 25, 1991, Respondent reiterated this defense in its

Answer to Petitioner’s Amended Complaint. (Voi. 1, pp. 183-

186). Hence, despite Petitioner’s assertions to the contrary,

Petitioner was on notice of Respondent’s defense in this regard at

least as of June 21, 1991, if not earlier.

REASONS FOR DENYING THE WRIT

I,

THE COLORADO COURT OF APPEALS,

CONSISTENT WITH THE OTHER JURISDICTIONS

WHICH HAVE ADDRESSED THIS ISSUE, CORRECTLY

HELD THAT THE FEDERAL HAZARDOUS

SUBSTANCES ACT PREEMPTS' PETITIONER’S

FAILURE TO WARN CLAIMS AGAINST THE

RESPONDENT WHOSE LABEL COMPLIED

THEREWITH.

It is undisputed that Whink Rust Stain Remover is governed

by the Federal-Hazardous Substances Act (“FHSA”). It is also

undisputed that Respondent complied with all of the regulations

promulgated under FHSA. (Vol. 1, pp. 249, 262-279, 280-282).

Further, it is undisputed that Respondent worked directly with the

3

Consumer Products Safety Commission or its predecessor on its

labeling requirements since 1962 and that it has complied with all

label and warning requirements of the appropriate agency. (Vol.

1, pp. 249, 262-279, 280-282). In fact, as the Colorado Court of

Appeals noted, the parties did not dispute that the label on Whink

Rust Stain Remover comported with the FHSA’s labeling

requirements. (Colorado Court of Appeals’ Opinion, Appendix

B, p. 16a).

Further, regardless of how Petitioner now styles her claims,

the basis of her claims before the trial court and before the

Colorado Court of Appeals was that Respondent’s label and

warning instructions on the Whink Rust Stain Remover were

defective. (Vol. 5, p. 27 — Argument of Petitioner's counsel

before the trial court; Petitioner’s Opening Brief filed with the

Court of Appeals, p. 12 and pp. 17-19 wherein Petitioner admits

that the basis of her Amended Complaint was inadequate warning

and that this is a failure to warn case). Both the trial court and the

Colorado Court of Appeals so found. (Trial court’s opinion,

Appendix A, p. 5a; Colorado Court of Appeals’ Opinion,

Appendix B, p. 16a.)

Thus, in essence, in the case at bar, Petitioner wanted a jury

to establish a standard for Respondent beyond those standards

mandated by the United States government pursuant to FHSA.

The Colorado Court of Appeals therefore correctly concluded

that FHSA preempted Petitioner’s failure to warn claims under

these circumstances.

In so doing, the Colorado Court of Appeals first noted that

state laws which “interfere with and/or are contrary to the laws of

the Congress, made in pursuance of the Constitution,” are

invalid, citing the case of Gibbons v. Ogden, 9 Wheat. 1,22 U.S.

1, 6 L. Ed. 23 (1824). The Court of Appeals then examined this

Court’s opinion in Cipollone v. Liggett Group, Jac., U.S. —.

4

112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992). Given the Cipollone

case, the Colorado Court of Appeals appropriately held that

Petitioner would have to show that FHSA’s preemption provision

was less sweeping than the language of the 1969 Cigarette Act in

order to avoid judgment in Respondent’s favor. The Petitioner

failed in this regard as the Colorado Court of Appeals could

discern no significant difference between the two.

Hence, finding persuasive the analysis of the Fourth Circuit

in Moss v. Parks Corp., 985 F.2d 736 (4th Cir. 1993), cert. denied,

__ U.S. __, 113 S. Ct. 2999, 125 L. Ed. 2d 693 (1993), the

Colorado Court of Appeals properly concluded that the FHSA

preempted Petitioner’s common law failure to warn claims

against the Respondent because she sought additional and/or

more clearly stated warnings that those required of Respondent

by the FHSA. In fact, the Colorado Court of Appeals’ holding in

this regard is in line with all of the case law on this issue, whether

issued before or after the Cipollone case. Moss v. Parks Corp.,

supra; Chemical Specialties Manufacturers Association, Inc. v.

Clark, 482 F.2d 325 (Sth Cir. 1973); Cosmetic, Toiletry and

Fragrance Association, Inc. v. State of Minnesota, 440 F. Supp.

1216 (D. Minn. 1977), aff’d, 575 F.2d 1256 (8th Cir. 1978);

Jenkins v. James B. Day & Co., 634 N.E.2d 998 (Ohio 1994);

State v. A.J. Seier, 871 S.W.2d 611 (Mo. App. 1994).

In addition, in the Moss case, the Fourth Circuit Court of

Appeals noted that “the preemption issues arising under the

Federal Hazardous Substance Act are identical to those arising

under the Federal Insecticide, Fungicide #ad Rodenticide Act

(‘FIFRA’), 7 U.S.C. § 137 et seq.” The Tenth Circuit Court of

Appeals addressed the preemptive effect of FIFRA in Arkansas-

Platte & Gulf Partnership v. Van Waters & George, Inc., 981 F.2d

1177 (10th Cir. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 60,

126 L. Ed. 2d 30 (1993). There, the Tenth Circuit Court of

Appeals held that the FIFRA preemption provision preempted

3

common law tort actions based upon a failure to warn. This

holding is in keeping with all of he circuit courts which have

considered this issue since the Cipollone decision. See

MacDonald v. Monsanto Co., 27 F.3d 1021 (Sth Cir. 1994); Worm

v. American Cyanamid Co., 5 F.3d 744 (4th Cir. 1993); King v.

E.I. Dupont De Nemours & Co., 996 F.2d 1364 (1st Cir. 1993);

Shaw v. Dow Brands, Inc., 994 F.2d 364 (7th Cir. 1993). Papas v.

Upjohn Company, 985 F.2d 516 (11th Cir. 1993), cert. denied,

__U.S.__, 114S. Ct. 300, 126 L. Ed. 2d 248 (1993). Hence,

the Colorado Court of Appeals’ opinion in this case on the FH%/4

is also in line with those jurisdictions which have addressed the

preemption issue under FIFRA.

Petitioner cites only one FHSA case as being allegedly to the

contrary, i.e., Jenkins v. James B. Day & Co., supra. In actuality,

this case is completely consistent with the Colorado Court of

Appeals’ opinion in the case at bar.

In the Jenkins case, the Ohio Supreme Court first

specifically held that if the evidence showed that the

manufacturer had complied with labeling requirements of the

FHSA, all tort claims for failure to warn were preempted. Jenkins

v. James B. Day & Co., supra at 1003, fn. 2 and at 1004. However,

in the event the evidence showed that the manufacturer had not

complied with FHSA requirements, a failure to warn claim could

be asserted based upon the manufacturer’s non-compliance with

the FHSA requirements. Jenkins v. James B. Day & Co., supra at

1005. Hence, as the Jenkins court held, if the evidence showed

that the label did comply with the FHSA, summary judgment in

favor of the manufacturer would be appropriate. Jenkins v. James

B. Day & Co., supra at 1004.

In the case at bar, it is undisputed that the Respondent did

comply with all of the labeling requirements of the FHSA. In fact,

Petitioner has always asserted that Respondent was required to

6

provide warnings beyond those required under FHSA. (Vol. 5, p.

27 — Argument of Petitioner’s counsel before the trial court;

Petitioner’s Opening Brief filed with the Court of Appeals at p.

19.) For this reason, the Colorado Court of Appeals’ opinion in

this matter is completely consistent with the Ohio Supreme

Court’s holding and analysis in the Jenkins case.

Finally, Petitioner asserts that the Colorado Court of Appeals

applied preemption too broadly as it precluded Petitioner’s

alleged claims of “negligent design” and that the product simply

should have never been marketed, despite its warnings. This

argument has no merit.

First, it should be noted that this is the very first time that

Petitioner has ever argued that Respondent was negligent in the

design of the product. Furthermore, Petitioner did not raise the

issue that Respondent should not have marketed the product at

all, despite its warnings, until she filed her Petition for Writ of

Certiorari with the Colorado Supreme Court. (Petitioner’s

Petition for Writ of Certiorari filed with Colorado Supreme

Court, p. 10). Having failed to raise these issues before the trial

court, let alone before the Colorado Court of Appeals, Petitioner

cannot raise these issues now. Neely v. Martin K. Eby Const. Co.,

386 U.S. 317, 87S. Ct. 1072, 18 L. Ed. 2d 75 (1967); A.O. Smith

Harvestore Products, Inc. v. Kallsen, 817 P.2d 1038 (Colo. 1991).

More importantly, these new positions are directly contrary

to the position taken by Petitioner before the trial court as well as

before the Colorado Court of Appeals. (Vol. 5, p.27 — Argument

of Petitioner’s counsel before the trial court; Petitioner’s

Opening Brief filed with the Court of Appeals, p. 12 and pp. 17-

19 wherein Petitioner admits that the basis of her Amended

Complaint was inadequate warning and that this is a failure to

warn case). Hence, in making this argument, Petitioner now

argues anew theory of recovery on appeal which, under Colorado

ee ee

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— as. ee a Se

7

law, she is not entitled to do. See Alzado v. Blinder, Robinson &

Co., Inc., 752 P.2d 544 (Colo. 1988); Flader v. Simonsen, 148

Colo. 480, 366 P.2d 678 (1962); Miller v. East Denver Municipal

Irrigation District, 83 Colo. 406, 266 P. 211 (1928); see also

Grasmick v. Otis Elevator Co., 817 F.2d 88 (10th Cir. 1987).

In sum, there is no reason why this Court should grant

Petitioner’s Petition for Writ of Certiorari. No question exists that

the Colorado Court of Appeals’ opinion in this matter on the issue

of FHSA preemption is in line with every other court decision

addressed to this issue. Moreover, as applied by the Colorado

Court of Appeals, the FHSA’s preemption provision was limited

to preempt Petitioner’s failure to warn claims against a

manufacturer who had complied with the FHSA requirements.

Since these were the only claims pursued by the Petitioner before

the trial court and the Colorado Court of Appeals, she is therefore

not entitled to have this matter remanded to the trial court so that

she can now pursue a different theory of recovery against the

Respondent.

II.

THE COLORADO COURT OF APPEALS DID NOT

ABUSE ITS DISCRETION IN DENYING PETITIONER’S

REQUEST FOR REMAND CONTAINED IN HER

PETITION FOR REHEARING.

Petitioner argues that the application of the Cipollone decision

to her is “particularly unfair” and, therefore, pursuant to her

Petition for Rehearing, the Colorado Court of Appeals should be

ordered to remand this matter to the trial court so that Petitioner

can further amend her Amended Complaint and pursue further

discovery. Along these lines, Petitioner argues that when she

prepared her case, the law was that “compliance with a federal

regulation concerning a warning was only one item of evidence

which the jury may consider.” This argument has no merit.

8

First, the standard of review regarding the Colorado Court of

Appeals’ decision not to remand this matter for these purposes is

not whether that decision is “particularly unfair,” but rather,

whether the Colorado Court of Appeals abused its discretion in

this regard. See Kerotest Mfg. Co. v. C-O-Two Fire Equipment

Co., 342 U.S. 180, 72 S. Ct. 219, 96 L. Ed. 200 (1952); People v.

Gaskins, 825 P.2d 30 (Colo. 1992). Clearly, it did not.

First, Petitioner’s request for a remand to the trial court was

not presented to the Colorado Court of Appeals until Petitioner

filed her Petition for Rehearing. It is a well-recognized rule that

questions not advanced at the original hearing of an appeal will

not be considered on the petition for rehearing. Seven Lakes

Reservoir Co. v. New Loveland & The Greeley Irrigation & Land

Co., 40 Colo. 382, 93 P. 485 (1907); See Independent Wireless

Telegraph Co. v. Radio Corporation of America, 270 U.S. 84, 46

S. Ct. 224, 70 L. Ed. 481 (1926). Hence, no abuse of discretion

could have occurred when the Colorado Court of Appeals failed

to remand this matter to the trial court in accordance with

Petitioner’s request in her Petition for Rehearing.

In addition, despite Petitioner’s assertions to the contrary,

the doctrine of federal preemption has been in existence and the

law in the United States since at least 1819. M’Culloch v. State, 4

Wheat. 316, 17 U.S. 316, 4 L. Ed. 579 (1819). Moreover, as of

1973 and 1977, respectively, at least one federal circuit court of

appeals and one federal district court had held that the FHSA

preempts failure to warn claims against manufacturers who had

complied with its provisions. See Chemical Specialties

Manufacturers Association, Inc. v. Clark, supra; Cosmetic,

Toiletry and Fragrance Association, Inc. v. State of Minnesota,

supra. Hence, the doctrine of federal preemption and, in

particular, as to the FHSA, had been in existence long before

Petitioner filed her Complaint in this matter on July 19, 1990.

9

Further, it is undisputed, in both its Supplements and

Amendments to its Disclosure Certificate and its Answer to

Petitioner’s Amended Complaint, Respondent advised Petitioner

that it intended to rely upon the doctrine of federal preemption in

this matter. Thereafter, on January 7, 1992, Respondent moved

for summary judgment, asserting that its labels had complied

with all the federal regulations and labeling requirements. (Vol. 1,

pp. 233-234). This assertion was established pursuant to Exhibit

A and Exhibit B attached to Respondent’s Brief in Support of

Motion for Summary Judgment. (Vol. 1, pp. 249, 262-279, 280-

282). Prior to Petitioner’s Petition for Writ of Certiorari to the

Colorado Supreme Court, Petitioner never even argued that

Respondent had failed to comply with FHSA, let alone even

attempt to establish that a disputed issue of fact existed on this

issue. Having failed to do so at the trial court level, Petitioner is

not entitled to do so now on appeal. Minnich v. Gardner, 292 U.S.

48, 54S. Ct. 567, 78 L. Ed. 1116 (1934); A.O. Smith Harvestore

Products, Inc. v. Kallsen, supra.

In addition, the fact that Petitioner’s counsel mistakenly

decided that Respondent’s compliance with the federal

regulatory standards was not an essential issue in this litigation

and, therefore, did not conduct any discovery on this issue,

cannot serve as a basis for allowing Petitioner to further amend

her Amended Complaint long after Respondent has been

successful on its summary judgment motion on this issue. It is

undisputed that Petitioner’s counsel was aware that Respondent

was relying on a preemption defense since June 31, 1991 and, at

the very latest, since January 7, 1992 when Respondent filed its

Motion for Summary Judgment. Given that the trial court’s Order

entering summary judgment in favor of Respondent was not

issued until September 14, 1992, Petitioner had more than

adequate time to fully address this preemption issue at the trial

court level. The fact that she did not do so cannot serve as the

basis for allowing her to do so now. Miller v. East Denver

10

Municipal Irrigation Ditch, supra; Perkins v. Flatiron Structures

Co., 849 P.2d 832 (Colo. App. 1992); see Grasmick v. Otis

Elevator Co., supra.

Further, it can hardly be said that the longstanding law of

federal preemption “changed” while Respondent’s Motion for

Summary Judgment or this appeal was pending. Here, in its Brief :

in Support of its Motion for Summary Judgment, Respondent not 7

only set forth the specific preemption language of FHSA, but

cited two specific cases which held that FHSA preempted the

states from establishing any different standards. Thus, since at

least January 7, 1992, Petitioner has been well aware of the

federal case law which was directly contrary to her position at

both the trial court and appeals levels.

Finally, the Cipollone opinion was issued in June, 1992 and,

thereafter, Respondent specifically advised Petitioner that it was

relying upon that opinion as to the issue of federal preemption.

(Vol. 2, pp. 397-420). Given that the trial court did not enter any

Order for summary judgment until September 14, 1992,

Petitioner also had more than adequate time to explore the federal

preemption issue as affected by the Cipollone case at the trial

court level.

In sum, Petitioner had more than ample time to pursue the

federal preemption issue at the trial court level, but failed to do

so. She therefore is not entitled to do so now. In light of this, the

Colorado Court of Appeals obviously did not abuse its discretion

in denying Petitioner’s request in her Petition for Rehearing to

remand this matter to the trial court for that purpose.

————————————————

11

CONCLUSION

In sum, this Petition for Writ of Certiorari must be denied in

this matter because (1) the Colorado Court of Appeals, in line

with all the other jurisdictions which have addressed this issue,

properly held that Petitioner's claims, as presented here, are

preempted by the Federal Hazardous Substances Act and (2) the

Colorado Court of Appeals did not abuse its discretion in denying

Petitioner’s request in her Petition for Rehearing to have this

matter remanded to the trial court in order to allow her to further

amend her Amended Complaint and to pursue a new theory of

recovery against the Respondent.

Respectfully submitted,

J. RONALD VOSS

Counsel of Record

AMELIA L. KLEME

RETHERFORD, MULLEN, JOHNSON

& BRUCE

Attorneys for Respondent

415 South Sahwatch

P.O. Box 1580

Colorado Springs, CO 80901-1580

(719) 475-2014

E

;

la

APPENDIX A — OPINION OF THE DISTRICT COURT,

CITY AND COUNTY OF DENVER, COLORADO DATED

SEPTEMBER 14, 1992

DISTRICT COURT, CITY AND COUNTY OF DENVER,

COLORADO

Case No. 90-CV-7830 Courtroom 21

SANDRA SALAZAR,

Plaintiff,

v.

WHINK PRODUCTS CO., an Iowa corporation and MONTE

VISTA ARAPAHOE, INC., dba MONTE VISTA SUPER

FOODS, a Colorado Corporation, ROBERT W.

SPLETTSTOESSER, M.D., and MONTE VISTA

PROFESSIONAL ASSOCIATES,

Defendants.

ORDER

THIS MATTER is before me on a Motion for Summary

Judgment filed by Defendant Whink Products Company

(“Whink”) on January 8, 1992, joined by Defendants Monte Vista

Arapahoe, Inc. (“Super Foods”), Robert W. Spletistoesser

(“Splettstoesser”) and Monte Vista Professional Associates

(“Monte Vista”). Based on my review of the Motion and briefs,

the affidavits, and the case file, and the hearing held on the

Motion on September 10, 1992, I rule as follows.

2a

Appendix A

I. INTRODUCTION

Motions for summary judgment are disfavored, and the

allegations of the non-movant must be taken as true unless they

are clearly disproved by unrebutted affidavits or products of

discovery. Continental Air Lines, Inc. v. Keenan, 731 P.2d 708

(Colo. 1987). With this standard in mind, the material facts of this

case are as follows.

The case arises out of Plaintiff’s allegations that she was

injured while using Whink Rust Stain Remover, and that she was

thereafter negligently treated for her injuries. At the time of her

injuries, Plaintiff had been in the professional cleaning business

for 11 years. She cleaned offices as well as private residences. In

July 1989, Plaintiff visited Defendant Super Foods for the

purpose of purchasing a window cleaner, apparently to use on

some water stained windows in Plaintiff’s own home. In reliance

on a specific recommendation of the owner of the Super Foods

store, Plaintiff purchased a bottle of Whink Rust Stain Remover.

Whink Rust Stain Remover is a cleaning fluid designed to remove

rust stains from fabrics and well as sinks and toilet bowls. It is 8%

hydrofluoric acid.

The bottle which Plaintiff purchased contained the

following warnings on the front of the bottle (emphasis in

original):

Nota general purpose rust remover.

Read precautions and directions before using.

DANGER: MAY BE FATAL OR CAUSE

PERMANENT DAMAGE. CAUSES

3a

Appendix A

SEVERE BURNS WHICH MAY NOT BE

IMMEDIATELY PAINFUL OR VISIBLE.

VAPORS HARMFUL. CONTAINS

HYDROFLUORIC ACID. KEEP OUT OF

REACH OF CHILDREN. Use Only With

Heavy Duty Household Rubber Gloves. Read

back panel for additional pre-cautions and

directions.

The back of the bottle was marked at the top with skulls and

crossbones and the following warning (emphasis in original):

DANGER-POISON

AVOID CONTRACT WITH SKIN OR

EYES.

DO NOT TASTE, SWALLOW OR

BREATHE.

The back also contained certain general instructions on use, as

well as medical instructions should the product be swallowed or

come in contact with the skin or eyes.

Plaintiff read the warnings on the front of the bottle,

including the directions to wear rubber gloves, but did not read

the warnings on the back until after she sustained her injuries.

Plaintiff spent three hours washing her windows with a

Whink-soaked towel wrapped around her unprotected right hand.

Later that afternoon, Plaintiff’s hand began to burn, she was

unable to stop the pain with water, and she was rushed to Dr.

Splettstoesser’s clinic. Plaintiff claims Splettstoesser negligently

misdiagnosed her chemical burns as an allergic reaction,

resulting in significant delays in appropriate treatment.

4a

Appendix A

Plaintiff suffered second and third degree burns on her right

thumb and forefinger, and underwent two amputative surgeries to

her right index finger. Plaintiff has a permanent disability rating,

and also suffers from reflex sympathetic dystrophy.

Il. CLAIMS AND DEFENSES

Plaintiff asserts the following claims against the following

Defendants:

CLAIM TYPE DEFENDANT

First Negligence Whink

Second Products liability Whink

Third Negligence Super Foods

Fourth Breach of implied warranty Super Foods

Fifth Exemplary damages All

Sixth Medical malpractice Splettstoesser

Monte Vista

At oral argument, Plaintiff’s counsel announced that Plaintiff has

settled the case with all Defendants except Whink, and that

documents reflecting that settlement have been prepared and are

in the process of being executed.

Plaintiff seeks in excess of $70,000.00 in medical expenses,

damages for past and future lost wages, pain and suffering, and

exemplary damages.

Sa

Appendix A

Defendants raise two arguments in their Motion: (1)

Plaintiff’s claims are preempted by the Federal Hazardous

Substances Act, 15 U.S.C. §§1261, et seq., and (2) Plaintiff’s

claims are barred by Plaintiff’s misuse. Because I agree that

Plaintiff’s claims are barred as a matter of law by her own misuse,

I do not reach Defendants’ preemption argument.

Il. THE UNCONTRADICTED FACTS REQUIRE DISMISSAL

OF THE FAILURE TO WARN ASPECTS OF PLAINTIFF'S

CLAIMS

The strict liability concepts set out in §402A of the

Restatement (2d) of Torts, as adopted in Colorado in Hiigel v.

General Motors Corp., 190 Colo. 57, 544 P.2d 983 (1975),

recognize two general categories of product liability actions —

one where the product is claimed to be organically defective, or,

in the language of the Restatement, “unreasonably dangerous,”

and another where the claimed defect is a failure to warn. See

Jackson v. Harsco Corp., 673 P.2d 363 (Colo. 1983).

Here, Plaintiff’s Amended Complaint confuses these two

basic concepts with each other, and also confuses strict liability

with negligence, and unreasonable dangerousness with

ultrahazardousness.' Despite these shortcomings, it is clear that

the focus of Plaintiff’s strict liability and negligence claims is an

alleged failure to warn. See Amended Complaint JJ 12(b) and 15.

At oral argument, Plaintiff’s counsel indicated that the gravamen

of Plaintiff’s failure to warn case is that Whink failed to give the

latent nature of the danger — the fact that the product doesn’t

burn until long after coming in contact with the skin — adequate

prominence, and that Plaintiff’s expert would so testify. There are

several problems with this argument.

1. See Part IV below.

6a

Appendix A

First, Plaintiff has not supported this argument with her

expert’s report or with transcripts from the expert’s deposition.

Counsel’s mere representations at this stage are insufficient to

create a triable issue of fact, in the face of the undisputed presence

of just such a warning in what appears to me to be a fairly

prominent place on the front of the Whink bottle. See Sullivan v.

Davis, 172 Colo. 490, 474 P.2d 218 (1970).

More importantly, Plaintiff has admitted not only that she

read the warnings contained on the front of the bottle, but that she

understood them. See excerpts of Plaintiff’s Deposition set forth

in Part V.B. below. Thus, the warnings, however inadequate,

managed to find their way into Plaintiff’s consciousness. Any

inadequacy could therefore not, as a matter of law, have caused

any of Plaintiff’s injuries. See Schultz v. Linden-Alimak, Inc.,734

P.2d 146 (Colo. App. 1986).

This is really just a different way of describing the

conclusion reached in Part V.B. below; namely, that Plaintiff

misused the product by failing to heed the warnings which she

admittedly read and appreciated.

IV. WHINK STAIN REMOVER IS NOT

“ULTRAHAZARDOUS”

At oral argument, Plaintiff’s counsel indicated that his use of

the term “ultrahazardous” in his First and Second Claims for

Relief was not inartful, but rather that Plaintiff is taking the

position that Whink Rust Stain Remover is indeed ultrahazardous

in the sense that it triggers absolute liable. Plaintiff’s argument in

this regard is wholly unsupportable.

Our appellate courts have recognized only two specific

Ta

Appendix A

activities as being so “ultrahazardous” as to render the

performers of these activities absolutely liable for all damages

arising therefrom. Those specific activities are dynamite blasting

(Garden of Gods Village v. Hellman, 133 Colo. 286, 294 P.2d 597

(1956)) and the impoundment of water (Garnet Ditch &

Reservoir Co. v. Sampson, 48 Colo. 285, 110 P. 79 (1910)).

Indeed, on every occasion since 1956 in which our appellate

courts have been asked to expand this doctrine into other areas,

they have expressly refused to do so. Liber v. Flor, 160 Colo. 7,

415 P.2d 332 (1960) (storage of dynamite is not ultrahazardous);

Forrest v. Imperial Distr. Serv. Inc., 712 P.2d 488 (Colo. App.

1987), rev’d on other grds., 741 P.2d 1251 (Colo. 1987) (storage

and handling of caustic chemicals is not ultrahazardous); and

Hartford Fire Ins. Co. v. Public Serv. Co., 676 P.2d 25 (Colo. App.

1983) (transmission of natural gas not ultrahazardous). Cf. City of

Northglenn v. Chevron U.S.A. Inc., 519 F. Supp. 515 (D. Colo.

1981), in which Judge Carrigan indicated his belief that the

Colorado courts would extend the doctrine of ultrahazardousness

to the storage of underground gasoline tanks. I note, however,

that when Judge Carrigan decided Northglenn, he did not have

the benefit of either of the Court of Appeals’ or the Supreme

Court’s opinions in Forrest. See generally Restatement (2d) of

Torts §§ 519 and 520 (recognizing the concept of

ultrahazardousness but calling it “abnormally dangerous

activities’).

Plaintiff’s argument that Whink Rust Stain Remover is

ultrahazardous, and therefore that Whink is an absolute insurer of

any and all damage caused by its sale of its product, would, if

adopted, represent an entirely unwarranted and unprecedented

expansion of the doctrine of ultrahazardousness.

8a

Appendix A

V. THE UNCONTRADICTED FACTS ESTABLISH MISUSE

AS AMATTER OF LAW

A. General

The defense of misuse in a products case was first expressly

articulated by our Supreme Court in Jackson v. Harsco Corp.,

supra. The Jackson Court described the defense this way:

Misuse by an injured party which cannot

reasonably be anticipated by the

manufacturer can be utilized as a defense ina

products liability case by showing that the

conduct of the user, and not the alleged defect

in the product, actually caused the accident.

673 P.2d at 367. See also Bradford v. Bendix-Westinghouse

Automotive Air Brake Co., 33 Colo. App. 99, 517 P.2d 406

(1973). There are thus two elements which must be proved to

establish the misuse defense: (1) the misuse must be

unforeseeable from the manufacturer’s point of view, and (2) the

misuse must have caused the injuries.

One kind of misuse arises when an injured party uses a

product for a purpose for which the product was not intended. But

our appellate courts have come to recognize that it may also be

misuse to use a product to accomplish its intended purpose, but to

do so in an unforeseeably improper manner. See, e.g., Uptain v.

Huttington Lab, Inc., 723 P.2d 1322 (Colo. 1986) Patterson v.

Magna American Corp., 754 P.2d 1385 (Colo. App. 1988). When

the user is notified of the proper manner of use, “the seller may

reasonably assume that [such notice] will be read and heeded.”

Uptain, 723 P.2d at 1327, citing Comment J to the Restatement

(2d) of Torts § 402A.

9a

Appendix A

B. ItIs Uncontroverted That Plaintiff Read And Understood

The Warnings, And Unforeseeably Misused The Product

By Failing To Heed The Warnings.

It is certainly true that the foreseeability of any misuse is a

question of fact, generally inappropriate for resolution by

summary judgment. Uptain, supra.

On the other hand, where, as here, a plaintiff admits to

reading a warning, and to consciously choosing to disregard the

warning, and when heeding that warning would have avoided all

of a plaintiff’s injuries, then I do not believe there is anything left

for a jury to decide.

Plaintiff testified as follows regarding her reading and

appreciation of the front label warnings:

Q: Did you read the bottle before you opened it?

A: Iread the front part of it.

Plaintiff’s Deposition, p. 25, lines 18-20.

Q: Why didn’t you go get some gloves?

A: Because I didn’t have any gloves.

Id. at 28, lines 23-24.

Q: Before you used the product, did you read the words

“causes severe burns,” before you used the product?

——— a

©

>

Q:

A

10a

Appendix A

: [read the front of that bottle.

All of it?

Yes.

Before you used the bottle?

: Yes.

Id. p. 45, lines 2-9.

Q:

A:

You didn’t have any questions about what [the label]

meant?

No.

Id. p. at 47, lines 11-13.

Q:

All right. We get down to the sentence that reads: “Use

only with heavy duty household rubber gloves.” If I

understand what you told Mr. Cooper, the reason that you

didn’t use household rubber gloves was because you

didn’t have any there?

: Right.

: Any you didn’t want to spend the time to go back to the

store to get some?

: Right. And by using the rag, I felt it was the same way of

not getting contact to my skin. I felt it was thick enough,

that there was no way it could reach my skin.

lla

Appendix A

Id. at 152, lines 21-25; 153, lines 1-5.

Q:

Q:

A:

Did you think about going back to the store to get rubber

gloves?

I thought in my head: What harm could it do, I’m not

using it straight on my hand.

When you read that sentence, did you understand that it

was important to protect yourself from this product

contacting your skin?

. Yes, I did.

Did you think about going back to the grocery store to get

rubber gloves so that that wouldn’t happen?

No.

Id. at 153, lines 14-25.

Q:

Even though you started out thinking that the heavy rag

would be sufficient to keep the product away from your

skin, at some point during the cleaning process, you

realized that it wasn’t because you felt wetness on your

skin, is that right?

: Yes.

At that time did you consider going back to the grocery

store to get some rubber gloves so you wouldn't have any

additional contact on your skin from the product?

12a

Appendix A

A: No, because I didn’t feel nothing that would indicate that

something was wrong.

Q: You did read the sentence that says: “Causes severe

burns which may not be immediately painful or visible”?

A: When I was reading it as a paragraph, yes.

Id. at 154, lines 8-25.

It is clear to me from this deposition transcript not only that

Plaintiff read and appreciated the warnings placed on the front of

the bottle, but also that there was nothing on earth that Whink

could have done to make these warnings sink in.” This is one of

those extreme misuse cases, like Schultz v. Linden-Alimak, Inc.,

734 P.2d 146 (Colo. 1986), in which a manufacturer places

warnings on a product, the warnings are sufficient to be

understood and appreciated by the plaintiff, but the plaintiff

simply and plainly chooses to ignore the warnings.

Uptain, which also involved injuries to a plaintiff who used a

cleaning product without rubber gloves, is quite instructive. In

affirming the trial court’s conclusion that misuse was a question

of fact for the jury, the Supreme Court made much of the fact that

the warnings in that case did not contain explicit directions to

wear rubber gloves. Moreover, it was the plaintiff in Uptain

arguing that her misuse was foreseeable as a matter of law, rather

than the defendant arguing it was unforeseeable. Finally, the

plaintiff in Uptain used a swab to apply the product; she came in

2. I have reviewed not only the portion of Plaintiff's transcript which

Defendants submitted with their briefs, but the entire transcript, which I directed

Defendants to submit prior to the September 10, 1992 hearing.

13a

Appendix A

contact with the product directly only when periodically

wringing the swab out during rinses.

Here, the evidence is also undisputed, as it was in Schultz,

that had Plaintiff not ignored the warnings — that is, had Plaintiff

worn rubber gloves as directed — she would have avoided her

injuries entirely. Report of Dr. Daniel A. Goldstein, dated May

28, 1991, attached as Exhibit F to Whink’s Motion for Summary

Judgment. Thus, it was Plaintiff’s own volitional act of using the

product contrary to the warnings which caused her injuries, not

any product defect or failure to warn.

VI. CONCLUSION

For all of the reasons discussed above, Defendants’ Motion

for Summary Judgment is GRANTED as to all of Plaintiff’s

claims against Whink, and all of those claims are hereby

DISMISSED WITH PREJUDICE. This dismissal will become a

final judgment when Plaintiff’s claims against the non-Whink

Defendants are dismissed pursuant to the settlement.

Plaintiff and the non- Whink Defendants are directed to file a

stipulated motion for dismissal and draft order reflecting their

settlement within 30 days of the date of this Order.

Dated this 14th day of September, 1992.

BY THE COURT:

s/ Morris B. Hoffman

Morris B. Hoffman

District Court Judge

l4a

Appendix A

cc: A. Walsh

F. James Donnelly

J. Ronald Voss

L. Heintz

D. Smith

15a

APPENDIX B — DECISION OF COLORADO COURT OF

APPEALS DATED APRIL 7, 1994

April 7, 1994

COLORADO COURT OF APPEALS

No. 93 CA0055

Sandra Salazar,

Plaintiff-Appellant,

v.

Whink Products Company, an Iowa corporation,

Defendant-Appellee.

Appeal from the District Court of the City and County of Denver

Honorable Morris B. Hoffman, Judge

No. 90CV7830

Division I JUDGMENT AFFIRMED

Opinion by CHIEF JUDGE STERNBERG

Briggs and Tursi*, JJ., concur

Dyer Donnelly & Lilley, F. James Donnelly, Denver, Colorado,

for Plaintiff-Appellant

Retherford, Mullen, Johnson & Bruce, J. Ronald Voss, Amelia L.

Klemme, Colorado Springs, Colorado, for Defendant-Appellee

* Sitting by assignment of the Chief Justice under provisions of the Colo.

Const. art. VI, Sec. 5(3), and §24-51-1105, C.R.S. (1988 Repl. Vol. 10B).

16a

Appendix B

In this products liability action, plaintiff, Sandra Salazar,

appeals the summary judgment entered in favor of defendant,

Whink Products Co., which determined that Whink was not liable

for plaintiff’s injuries resulting from her use of its product,

Whink Rust Stain Remover. We affirm.

Plaintiff asserts that genuine issues of material fact remain as

to the adequacy of the warnings on the product and the

foreseeability of her failure to heed those warnings. Whink

contends that the trial court properly dismissed plaintiff’s claims

on the basis of her unforeseeable misuse of the product, but also

argues that her claims are preempted by the Federal Hazardous

Substances Act (FHSA), 15 U.S.C. §§ 1261-1277 (1988). It is

undisputed that the label on the product at issue complies with the

FHSA, and we conclude that the FHSA preempts plaintiff’s duty

to warn claims. Thus, we affirm the summary judgment, but on

grounds different from those relied upon by the trial court.

Under the Supremacy Clause, U.S. Const., art. VI, cl. 2, state

laws which “interfere with or are contrary to the laws of

Congress, made in pursuance of the constitution,” are invalid.

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824).

Whether a federal statute preempts a state law or claim turns on

Congressional intent, and that intent may be explicit in the statute

itself. Cipollone v. Liggett Group, Inc., __ U.S. __, 112 S.Ct.

2608, 120 L.Ed.2d 407 (1992).

In its most recent pronouncement on federal preemption, the

United States Supreme Court held that a broad statement in a

federal law prohibiting state regulation also bars common law

tort claims. Cipollone v. Liggett Group, Inc., supra.

17a

Appendix B

The federal laws at issue in Cipollone were the Federal

Cigarette Labeling and Advertising Act (1965 Cigarette Act) and

the Public Health Cigarette Smoking Act of 1969 (1969 Cigarette

Act), 15 U.S.C. §§1331-1340 (1988). The preemption provision

in the 1965 Cigarette Act was narrow and stated: “No statement

relating to smoking and health shall be required in the advertising

of [properly labeled] cigarettes.” Cipollone, supra, __U.S.at__,

112 S. Ct. at 2618, 120 L.Ed.2d at 421 (emphasis in the original).

Congress’ emphasis on the words “statement” and “advertising”

led the Court to conclude that the 1965 Cigarette Act preempted

only state and federal regulations requiring additional warnings,

but did not affect state law damages actions.

The 1969 Cigarette Act, however, used much broader

language; it barred not merely “statements,” but any

“requirement[s] or prohibition[s] . . .imposed under stated law.”

Cippolone, supra, ___U.S. at__, 112 S.Ct. at 2619, 120 L.Ed.2d at

422. This language, the Court held, indicated legislative intent to

ban state common law labeling and duty to warn claims along

with direct state regulation of labels.

The court noted that: “[T]he phrase ‘[n]o requirement or

prohibition’ sweeps broadly and suggests no distinction between

positive enactments and common law; to the contrary, those

words easily encompass obligations that take the form of

common law rules.” Cipollone, supra, __ U.S. at ___, 112 S.Ct. at

2620, 120 L.Ed.2d at 426.

In order to succeed in the wake of Cipollone, then, the

plaintiff would have to show that FHSA’s preemption language is

less sweeping than the language of the 1969 Cigarette Act;

however, we can discern no significant difference between the

two.

18a

Appendix B

The FHSA was enacted in 1960 to mandate labeling of

certain “hazardous” consumer products intended for use in the

household or by children. Chemical Specialities Manufacturers

Ass’ny. Allenby, 958 F.2d 941 (9th Cir. 1992). The purpose of the

Act was to “provide nationally uniform requirements for

adequate cautionary labeling.” House Committee On Interstate

and Foreign Commerce, Federal Hazardous Substances Labeling

Act, H.R. Rep. No. 1861, 86th Cong., 2d Sess. 2 (1960), reprinted

in 1960 U.S. Code Cong. & Admin. News 2833. The scope of the

Act’s coverage as to these products is extremely broad. Toy

Manufacturers of America, Inc. v. Blumenthal, 986 F.2d 615 (2d

Cir. 1992). Thus, the central requirement of the Act is that

manufacturers of hazardous products provide cautionary labels

clearly indicating the hazards and providing consumers with

directions for use. The parties do not dispute that the label on

Whink Rust Stain Remover comports with the FHSA’s labeling

requirements.

As enacted, the FHSA did not contain a preemption section.

However, when the Act was amended in 1966, the legislative

history discussed the impracticality of having the states produce

potentially fifty different labels for a particular hazardous

substance. House Committee On Interstate and Foreign

Commerce, Child Protection Act of 1966, H.R.Rep. No. 2166,

89th Cong., 2d Sess. 3 (1966), reprinted in 1966 U.S. Code Cong.

& Admin. News 4095, 4097. The 1966 amendments added a

limited preemption provision which provides as follows:

It is hereby expressly 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 may now

or hereafter provide for the precautionary

19a

Appendix B

labeling of any substance or article intended

or suitable for household use (except for

those substances defined in sections 2(f) (2)

and (3) of this Act) which differs from the

requirements or exemptions of this Act or the

regulations or interpretations promulgated

pursuant thereto. Any law, regulation, or

ordinance purporting to establish such a

labeling requirement shall be null and void.

Child Protection Act of 1966, Pub. L. No. 89-756, 80 Stat. 1303

(1966) (current version at 15 U.S.C. § 1261 (1988)); see also §

13-21-403(1)(b) C.R.S. (1987 Repl. Vol. 6A) (emphasis added).

In our view, the language prohibiting a state from imposing

“a requirement” for labeling that is not identical to the labeling

requirements under the Act is as inclusive as the language of the

1969 Cigarette Act stating that “no requirement or prohibition”

shall be imposed under state law. The prohibition of “a

requirement” is the functional equivalent of “no requirement.”

See Arkansas-Platte & Gulf v. Van Waters & Rogers, 981 F.2d

1177 (10th Cir. 1993).

We find persuasive the reasoning of the court in Moss v.

Parks Corp., 985 F.2d 736 (4th Cir. 1993), which heid that the

FHSA preempted common law failure to warn claims when the

plaintiff seeks additional or more clearly stated warnings than

those required by the FHSA. In determining that the FHSA

applied to common law tort actions as well as state labeling

regulations, the court stated that: “[I]f federal law mandates a

specific label and permits nothing additional or different, it can

hardly be urged that a state tort duty based on a warning

requirement that is more elaborate and different does not conflict.

20a

Appendix B

The manufacturer in that case cannot comply with both.” Moss v.

Parks Corp., supra, at 739-740.

Moreover, the purposes underlying both legislative

regulation of labeling and a state common law duty to warn are

the same. Indeed, a state common law duty to warn is nothing

more than a duty to label a product to provide information. In

that sense, the common law duty is no less “a requirement” in the

preemption scheme than a state statute imposing the same

burden. The objective of the common law duty and a regulatory

statute are the same. Both address a manufacturer’s duty to

convey information about a product through the medium of a

label.

That a common law action can result in an award of damages

to an injured party does not detract from the ultimate purpose of

imposing a duty to warn the users of a product about its potential

dangers or other properties. Therefore, we find in only logical to

hold that the common law duty to warn is subjected to the same

federal preemptive constraints as a state statute.

Accordingly, to the extent that plaintiff seeks additional,

different, or more clearly stated warnings, her claim is expressly

preempted by the FHSA.

Because of our disposition of this issue, it is unnecessary to

address the remaining issues.

Judgment affirmed.

JUDGE BRIGGS and JUDGE TURSI concur.