October 11, 1996 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2084
ROBERT B. GRENIER, ET AL.,
Plaintiffs, Appellees,
v.
VERMONT LOG BUILDINGS, INC., ET AL.,
Defendants, Third-Party Plaintiffs, Appellants.
v.
DAP, INC. and CHAMPION INTERNATIONAL CORP.,
Third-Party Defendants, Appellees.
ERRATA SHEET
The opinion of this Court, issued on September 25, 1996, is
amended as follows:
On page 10, 3rd line down, replace "Vermont Life" with "Vermont
Log".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2084
ROBERT B. GRENIER, ET AL.,
Plaintiffs, Appellees,
v.
VERMONT LOG BUILDINGS, INC., ET AL.,
Defendants, Third-Party Plaintiffs, Appellants.
v.
DAP, INC. and CHAMPION INTERNATIONAL CORP.,
Third-Party Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Stahl, Circuit Judges.
Carol A. Griffin with whom Lawrence F. Boyle, W. Joseph Flanagan
and Morrison, Mahoney & Miller were on brief for appellants.
Roger D. Matthews with whom Nick K. Malhotra and Madan and
Madan, P.C. were on brief for appellees DAP, Inc. and Champion
International Corp.
September 25, 1996
BOUDIN, Circuit Judge. Joan Grenier suffered from
chronic gastritis for several years, allegedly in reaction to
the wood preservative applied to the walls of her log home.
She and her family sued Vermont Log Buildings, Inc. ("Vermont
Log"), the manufacturer of their home, claiming negligence,
breaches of warranty, and violation of Mass. Gen. L. ch.
93A.1 Vermont Log in turn filed a third-party complaint
against the alleged manufacturers of the preservative. The
district court granted summary judgment for the
manufacturers, rejecting Vermont Log's third-party claims.
Vermont Log appeals. We affirm.
Because the case was decided on summary judgment, our
recitation of the facts is based primarily on the facts as
alleged. Snow v. Harnischfeger Corp., 12 F.3d 1154, 1157
(1st Cir. 1993), cert. denied, 115 S. Ct. 56 (1994). In
April 1975, Robert and Joan Grenier purchased the components
of a log house from an authorized dealer for Vermont Log.
The logs were shipped to the Greniers' lot in Massachusetts
and assembled there. The Greniers moved into the house in
May 1975. Vermont Log had treated the logs with Woodlife, a
wood preservative containing the active ingredient
pentachlorophenol.
1Chapter 93A outlaws "[u]nfair methods of competition
and unfair or deceptive acts or practices in the conduct of
any trade or commerce," and permits awards of multiple
damages and attorneys' fees.
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In early 1982, Joan Grenier began displaying symptoms of
gastritis, and continued to suffer intermittent stomach and
back pain for several years. A doctor who examined her in
April 1987 suspected that her condition was caused by wood
preservative in the logs of the Greniers' cabin. Later tests
revealed an elevated level of pentachlorophenol in her body.
When she moved out of the house, her level of
pentachlorophenol dropped and her symptoms abated.
At the time the Greniers bought their cabin, Woodlife
was registered as a pesticide as required by the Federal
Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7
U.S.C. 136-136y. FIFRA is one of a family of federal
regulatory statutes that are concerned with health, safety
and (in this case) the environment. Two of its main
components are a requirement of prior approval of the product
by the Environment Protection Agency, 7 U.S.C. 136a(a), and
of EPA approval of the labeling supplied with the product,
id. 136a(c)(1)(C).
In early 1975, the Woodlife labeling, which EPA had
approved, warned that the product was toxic and was not "for
use or storage in or around the home." The labeling also
included a section describing the uses of the product:
"PRODUCT USES: Millwork, shingles, siding, structural lumber,
fences, trellises, outside furniture, vacation homes, all
lumber and wood products." On September 26, 1975, the EPA
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approved a modified label for Woodlife. On the new labeling,
the section listing product uses no longer included "vacation
homes" as a use and added a further warning: "Do not use on
interior surfaces which are not to be finished."
The Greniers filed suit in 1990 against Vermont Log and
two allegedly related corporate entities (collectively,
"Vermont Log"), alleging that pentachlorophenol used in the
log home caused Joan Grenier's illness. The claims as
ultimately amended comprised ten different counts, including
bare bones claims for express and implied warranty breach,
for negligence in design, manufacture and failure to warn,
and under chapter 93A. Joan Grenier sought damages for her
injuries; her husband and the Greniers' three children
claimed loss of consortium.
In 1991, Vermont Log filed a third-party complaint
against DAP, Inc. and Roberts Consolidated Industries, the
alleged manufacturers, sellers, and distributors of Woodlife.
Thereafter, Champion International, Inc., was added as a
third-party defendant (Roberts was later dropped from the
case by agreement). As amended, Vermont Log's third-party
complaint asserted claims for contribution under Mass. Gen.
L. ch. 231B based on negligence by the manufacturers of
Woodlife, and claims for breaches of warranty by those
manufacturers.
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In August 1991, DAP and Roberts removed the action on
diversity grounds to federal district court where it was
assigned to Judge Zobel. In due course, Vermont Log and the
third-party defendants moved for summary judgment on the
Greniers' claims on the grounds that they were barred by the
statute of limitations and that they were preempted by FIFRA.
On November 4, 1992, Judge Zobel ruled that Joan and Robert
Grenier's warranty and negligence claims were barred by the
statute of limitations, but that their chapter 93A claims
were timely under its longer limitations period. She also
held that none of the children's claims for loss of
consortium was barred, since the statute of limitations was
tolled during their minority.
Judge Zobel further held that Vermont Log could seek
contribution from DAP and Champion (for convenience we refer
to them hereafter as "the Woodlife manufacturers"); but she
ruled that Vermont Log could not obtain indemnification
because by selling the logs to the Greniers Vermont Log
participated in the conduct that allegedly damaged the
Greniers. Finally, Judge Zobel concluded that under
Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597 (1991),
none of the claims was preempted by FIFRA.
After Judge Zobel's November 1992 ruling, the case was
reassigned to newly appointed Judge Gorton. In May 1993, the
Woodlife manufacturers filed new motions for summary
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judgment, this time against Vermont Log; they argued (based
on intervening case law) that FIFRA preempted all of Vermont
Log's remaining claims against them. Then-Magistrate Judge
Ponsor, to whom the case had been referred, held a hearing on
the motion in September 1993.
In July 1994, Judge Ponsor, having recently been
appointed a district judge, relinquished jurisdiction in this
case. At the same time he issued a memorandum in a companion
case brought by a different plaintiff against Vermont Log.
Judge Ponsor there ruled that FIFRA preempted claims of
failure to warn and breach of implied warranty, but not
claims of breach of express warranty and negligent design and
manufacture. Jillson v. Vermont Log Bldgs., Inc., 857 F.
Supp. 985 (D. Mass. 1994).
After the present case was returned to Judge Gorton, he
ruled that all of Vermont Log's claims were "related to the
labeling and packaging" of Woodlife. While noting that a
properly supported express warranty claim might not be
preempted, Judge Gorton found Vermont Log's claim to be
"based entirely on the label" because "[n]o other factual or
evidentiary basis for the claim was provided in the
pleadings." Judge Gorton granted summary judgment to DAP and
Champion and entered a separate final judgment in their
favor. See Fed. R. Civ. P. 54(b).
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On appeal, Vermont Log argues that the district court
erred in finding that all of its claims were preempted: it
says that FIFRA preempts only those state-law claims based on
the labeling or packaging of pesticides and it asserts that
most of its claims are not based on the labeling or packaging
of Woodlife but rather upon design and manufacturing defects
and upon failure to warn unrelated to labeling and packaging.
We review the district court's grant of summary judgment de
novo, drawing reasonable inferences in favor of Vermont Log.
Brown v. Hearst Corp., 54 F.3d 21, 24 (1st Cir. 1995).
We begin, in the classic fashion, by seeking to lay the
counts allegedly preempted along side the statutory
preemption clause and the cases that have interpreted it and
similar language in other statutes. Where, as here, Congress
has included an express preemption clause in the statute, we
start with the language of that provision. Medtronic, Inc.
v. Lohr, 116 S. Ct. 2240 (1996); Cipollone v. Liggett Group,
Inc., 505 U.S. 504, 517 (1992). FIFRA's preemption clause, 7
U.S.C. 136v, reads as follows:
(a) In general
A State may regulate the sale or use
of any federally registered pesticide or
device in the State, but only if and to
the extent the regulation does not permit
any sale or use prohibited by this
subchapter.
(b) Uniformity
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Such State shall not impose or
continue in effect any requirements for
labeling or packaging in addition to or
different from those required under this
subchapter.
It is apparent from subsection (a), as well as other
statutory language, e.g., 7 U.S.C. 136w-1, that FIFRA does
not wholly oust the states from pesticide regulation. See
generally Mortier, 501 U.S. at 612-13. And it is equally
apparent from subsection (b) that the state cannot apply
different or additional "requirements" for "labeling and
packaging." It was once an open question, but is now settled
by the Supreme Court in Cipollone and Lohr, that
"requirements" in this context presumptively includes state
causes of action as well as laws and regulations. Lohr, 116
S. Ct. at 2251-53 (plurality opinion), id., 2259-60 (Breyer,
J., concurring in part and concurring in judgment), id.,
2262-63 (O'Connor, J., Scalia, J., and Thomas, J., concurring
in part and dissenting in part); Cipollone, 505 U.S. at 521-
22 (plurality opinion), id., 548-49 (Scalia, J. and Thomas
J., concurring in judgment in part and dissenting in part).
This court so held in King v. E.I. Dupont de Nemours &
Co., 996 F.2d 1346 (1st Cir.), cert. dismissed, 114 S. Ct.
490 (1993), which, unlike Cipollone and Lohr, involved FIFRA
itself. Other circuits are in accord. E.g., Papas v. Upjohn
Co., 985 F.2d 516 (11th Cir.), cert. denied, 114 S. Ct. 300
(1993). Our case involves third-party claims--by the log
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supplier against the chemical manufacturers--but nothing in
the preemption clause limits its effects to suits by
consumers. Indeed, Vermont Log itself concedes that its
claims based on the inadequacy of EPA approved labeling are
preempted by FIFRA; its objection, as already noted, is that
most of its claims do not fit this rubric.
To appraise this objection requires a closer description
of Vermont Log's actual claims. Here, Vermont Log's amended
third-party complaint is structured so that, in four separate
counts, two different categories of claims are directed at
DAP and Champion. In parallel counts III and V, Vermont
Log's complaint says that DAP and Champion are or may be
liable to Vermont Log for their own "negligent design,
manufacture, and failures to warn"; confusingly, Vermont Log
then in the same counts asserts these wrongs simply as the
basis for a pro rata contribution claim against DAP and
Champion.2
Then, in two other parallel counts (IV and VI), Vermont
Log asserts that DAP and Champion are or may be liable for
breach of "express and implied warranties that said product
[apparently a reference to Woodlife] was of merchantable
2It is unclear why Vermont Log sought only pro rata
contribution since the negligent acts alleged might also
entitle it to full recovery absent some bar like preemption.
Cf. Fireside Motors, Inc. v. Nissan Motor Corp., 479 N.E.2d
1386, 1389 (Mass. 1985) (citing Restatement (Second) of Torts
886B, cmt. c (1979)).
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quality, free of hazardous defects, and fit for the
particular purpose intended." On this claim, Vermont Log
seeks not pro rata recovery but compensation for whatever it
may have to pay to the Greniers plus its costs in conducting
the litigation. It is easiest to discuss all of Vermont
Log's claims functionally, that is, in terms of the
defendants' alleged wrongful conduct.
Failure to warn. The most obvious state-law claim for
Vermont Log, preemption aside, is that the Woodlife
manufacturers should have warned Vermont Log that Woodlife
was not suitable for residences. This claim, whether
presented as a negligence claim or a claim for breach of
implied warranty, is preempted by FIFRA as far as the present
case is concerned. Vermont Log concedes this is so as to any
inadequacy in the labeling as approved by EPA.
It argues, however, that FIFRA permits a failure to warn
claim so far is it is not "based on labeling or packaging."
Here lurks a potentially vexing problem: one can imagine
claims based on what was said or not said during
conversations, in correspondence, or in point of sales signs
or the absence of such signs. Whether and to what extent
these kinds of claims should be preempted depends on a
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reading of section 136v and related judgments. The answers
are far from clear.3
But the structure of FIFRA indicates that Congress
intended the pesticide labeling to bear the primary burden of
informing the buyer of dangers and limitations. See 7 U.S.C.
136a(c); 40 C.F.R. 156.10. If the plaintiff wants to
premise a failure to warn claim on a communication or failure
to communicate by some other means, it is incumbent on the
plaintiff to set forth a coherent specific claim. On appeal,
Vermont Log does not even attempt to explain how its failure
to warn claim is based on anything other than the alleged
inadequacy of the labeling approved by EPA.
Affirmative misstatement. Under Massachusetts law, an
express warranty may be created where the seller makes any
"affirmation of fact or promise" or "description of the
goods" and this statement becomes part of the basis of the
bargain. Mass. Gen. L. ch. 106, 2-213. An inaccurate
statement might also support a recovery under a theory of
negligent misrepresentation. Cf. Danca v. Taunton Sav. Bank,
429 N.E.2d 1129, 1133-34 (Mass. 1982). Such claims could
conceivably be based either on statements made in the
3Compare Chemical Specialties Manufacturers Ass'n v.
Allenby, 958 F.2d 941, 946-47 (9th Cir.), cert. denied, 113
S. Ct. 80 (1992) (state statute requiring point-of-sale
warnings not preempted), with Taylor AG Industries v. Pure-
Gro, 54 F.3d 555, 561 (9th Cir. 1995) (failure to warn claims
based on inadequacy of point-of-sale signs preempted).
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labeling or elsewhere; and the statements might be either
consistent with FIFRA requirements or in violation of them.
These variations give rise to different and difficult
preemption questions. The circuits are not unanimous even as
to FIFRA itself, see generally Lowe v. Sporicidin Int'l, 47
F.3d 124, 128-29 (4th Cir. 1995), let alone other statutes.
As Lohr illustrates, the signals from the Supreme Court are
blurred by disagreements within the Court. But, in this
case, the only affirmative misstatement identified by Vermont
Log is the statement in the original labeling that Woodlife
was suitable forapplication to "all wood andlumber products."
This unqualified statement may have been inaccurate, as
its later revision suggests, but it was a statement contained
in EPA-approved labeling. To premise liability on the
inaccuracy of the statement is in substance to determine that
a different statement should have been made in the labeling.
Yet the statute itself prohibits a state requirement as to
labeling that is "different" than that prescribed by federal
law. 7 U.S.C. 136v. See Lowe, 47 F.3d at 129. Thus the
only express warranty claim specifically identified by
Vermont Log is preempted.
Misdesign or manufacture. Whether on a warranty or
negligence theory, recovery might be premised on mistakes in
the design or manufacture of the product, and the
manufacturing defect might be generic or a defect in a single
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item. E.g., Hayes v. Ariens Co., 462 N.E.2d 273, 277 (Mass.
1984). Whether such claims are preempted may depend both on
their precise make-up and on the underlying statute. Under
FIFRA, the situation is complicated by the fact that the
preemption clause refers only to labeling and packaging while
the statute empowers the agency to regulate the product as
well as the description. 7 U.S.C. 136a(a).
In all events, merely to call something a design or
manufacturing defect claim does not automatically avoid
FIFRA's explicit preemption clause. In re DuPont-Benlate
Litigation, 859 F. Supp. 619, 623-24 (D.P.R. 1994). Here,
Vermont Log's only elaborated claim under this heading is
that Woodlife was defectively designed or manufactured
because it was foreseeable that it would be used on
residences and it was unfit for this use. But this claim is
effectively no more than an attack on the failure to warn
against residential use and therefore is a preempted claim.
This certainly does not mean that every misdesign or
mismanufacturing claim would be debarred by section 136v. In
a batch of properly made products, one item might be
defective or tainted; or perhaps one might design a
pesticide that, while properly approved and labeled, was
unduly dangerous for any legitimate use. In the former case,
it is hard to see why FIFRA preemption would even be
arguable; in the latter, there would be at most an implied
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preemption claim, based not on section 136v but on EPA's
approval of the product; and it is by no means clear that
such a preemption claim would prevail.4
However, in this instance, Vermont Log has provided no
hint whatever of how Woodlife has been misdesigned or
mismanufactured beyond Vermont Log's suggestion--which we
regard as a disguised labeling claim--that the product was
not fit for residential use. Vermont Log's position,
implicit in its brief and explicit in oral argument, is that
no such disclosure or elaboration was required. It is
enough, it contends, that its complaint alleged misdesign and
mismanufacture in general terms and that not every such claim
is automatically preempted.
If the Woodlife manufacturers had squarely argued a lack
of evidence in their motion for summary judgment, Vermont
Log's position could be rejected out of hand. Vermont Log
bears the burden of proof at trial and, under Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986), it would take very
little in the way of a negative averment at the summary
judgment stage to require Vermont Log to identify its
evidence--trialworthy evidence of a specific misdesign or
manufacturing defect which was not a disguised mislabeling
4See Cipollone, 112 S. Ct. at 2622-23. Compare Mendes
v. Medtronic, 18 F.3d 13 (1st Cir. 1994) (Medical Device
Act), with In re DuPont-Benlate-Litigation, 859 F. Supp. at
622-23 (FIFRA).
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claim. Mottolo v. Fireman's Fund Ins. Co., 43 F.3d 723, 725
(1st Cir. 1995).
Whether Vermont Log got such due notice of a Celotex
challenge could be debated. On the one hand, the summary
judgment motion was cast primarily in abstract preemption
terms; on the other hand, Vermont Log could at any time have
explained to the district court just what kind of misdesign
or manufacturing defect claim it was making over and above a
recast version of its preempted labeling claim. As is often
the case, the answer is to be found more in common sense than
categorical rules.
If we thought that Vermont Log had been genuinely
misled, we would remand to allow it to identify its misdesign
or mismanufacture claim and require the chemical
manufacturers to formulate a new summary judgment motion.
Indeed, we might be tempted to follow this course even now if
Vermont Log had troubled to tell us just what specific design
or manufacturing defect it plausibly suspected or how it had
been denied a promising opportunity to unearth this
information through discovery. But at oral argument our most
persistent questions on the subject were met only with
generalities.
It is too late in the day for such gambits. It is one
thing at the outset of a case to ask for indulgence to pursue
initial discovery; it is quite another matter, on appeal and
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after five years, to ask for a reversal based on theoretical
possibilities but without any effort to explain how a remand
might bear fruit. If there are unpreempted claims of design
or manufacturing defect, Vermont Log has never adequately
identified them, let alone pointed to any supporting
evidence.
Indemnification. As already explained, Vermont Log's
third-party complaint did explicitly request contribution; in
fact, its negligence counts were asserted not as independent
claims for full recovery but merely as the basis for pro rata
contribution under the Massachusetts statute. Conversely,
although Vermont Log now speaks of "indemnification" claims,
the third-party complaint nowhere refers to indemnification,
although the warranty counts seek the same damages that
indemnification might provide.
Traditionally, indemnification has comprised a distinct
body of doctrine that, to put the matter too crudely, permits
a vicariously liable party (e.g., an innocent principal) to
obtain reimbursement from a culpable party (e.g., a
blameworthy agent) whose conduct gave rise to the liability.
P. Keeton, Prosser and Keeton on Torts 51, at 341-44 (5th
ed. 1984); Decker v. Black and Decker Mfg. Co., 449 N.E.2d
641, 644-45 (Mass. 1983). Thus, indemnification may
sometimes be available even when no other direct tort or
contract claim will lie.
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On appeal, Vermont Log says as an alternative final
argument that Judge Zobel erred in rejecting its "claim of
indemnity" on the ground that "[i]demnity is permitted only
where one does not join the negligent act . . . ." We
confess ourselves puzzled by Judge Zobel's ruling; while the
principle may be sound, it is far from clear that Vermont
Log's culpability in this case--at least on some warranty
theories asserted by the Greniers--is of a kind that would
automatically preclude an indemnification claim by Vermont
Log against DAP and Champion.
Yet even if we assume (dubitante) that Vermont Log
has asserted a separate claim for indemnification and assume
further that it is not barred from indemnification by its own
participation in the wrong, a crucial obstacle remains. The
body of doctrine comprising indemnification law varies from
state to state; but in Massachusetts, an indemnification
claim does require a showing of fault on the part of the
parties or parties against whom the demand for
indemnification is leveled. Stewart v. Roy Bros., 265 N.E.2d
357, 365 (Mass. 1970).
Here, the only allegations of fault made by Vermont Log
against DAP and Champion are the charges of negligence and
breaches of warranty made in counts III-VI of the amended
third-party complaint. We have already found these charges
to be inadequate, some because of federal preemption and some
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because they are both too general and wholly unsupported.
And if these claims are themselves inadequate, there is no
foundation for a showing of fault as to DAP and Champion that
would permit Vermont Log to claim indemnification.
There is a final point to be made that is pertinent to
future cases of this kind. Vermont Log has now placed itself
in an unhappy position where the Greniers might recover
against it while it would no longer have recourse against
those who supplied it with Woodlife. This assumes, perhaps
fancifully, that the Greniers, or at least the minors, might
structure and then prove a claim that managed at the same
time to avoid every type of preemption and any kind of
defense based on Vermont Log's own possible ignorance. But
the theoretical risk is there.
This risk arises directly from the entry of a separate
final judgment under Rule 54(b) against Vermont Log on its
third-party claims in advance of the full resolution of the
Greniers' first-party claims against Vermont Log. If Vermont
Log had objected to a separate judgment in the district court
and appealed on that issue in this court, we would be very
much open to such an argument. The reason is the overlap of
first-party and third-party claims in this case and the
resulting risk (in this case) of inconsistent results.
But Vermont Log has not made this argument. If it had
no objection to the entry of a separate judgment, certainly
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the district court had no obligation to withhold such a
judgment. Indeed, Vermont Log may have had tactical reasons,
unknown to us, for allowing the uncoupling of the two
complaints. Our sole reason for mentioning the point is to
alert district courts in future cases that such an objection
to a separate judgment may have significant force.
Affirmed.
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