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WICKHAM v. AMERICAN TOKYO KASEI

May 17, 1996

DAVID L WICKHAM, Plaintiff,
v.
AMERICAN TOKYO KASEI, INC., a corporation; and TOKYO KASEI KOGYO, a Japanese Corporation, Defendants, Third Party Plaintiff, AMERICAN TOKYO KASEI, INC., a corporation; and TOKYO KASEI KOGYO, a Japanese Corporation, Third Party Plaintiffs, v. G.D. SEARLE & COMPANY and LAIDLAW ENVIRONMENTAL SERVICES, INC., Third Party Defendants.



The opinion of the court was delivered by: ROSZKOWSKI

 This matter comes before the Court on Defendants American Tokyo Kasei and Tokyo Kasei Kogyo's Motion for Judgment on the Pleadings. For the reasons that follow, the motion is denied.

 Facts

 Plaintiff brings this products liability action for injuries suffered at work when the chemical DMAD, manufactured by the defendants, exploded. His Amended Complaint alleges in part that defendants failed to put any warnings on the container advising of the chemical's explosiveness or shock sensitivity propensities. He further alleges that defendants failed to inform potential users of the chemical's explosiveness either through material safety data sheets or catalog listings.

 Discussion

 Congress enacted the Occupational Safety and Health Act to ensure safe and healthful working conditions for the nation's employees. 29 U.S.C. § 651(b). Included in OSHA are health and safety standards regarding labels and warnings required on chemicals produced, imported or used in a workplace. 29 C.F.R. § 1910.1200(f)(1). Section 1910.1200(a)(2) states that these standards are "intended to preempt any legal requirements of a State, or political subdivision of a State, pertaining to the subject."

 OSHA also contains a savings clause which states that nothing in the statute is to be "construed to supersede or in any manner affect any workman's compensation law or ... statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or both, of employees arising out of, or in the course of, employment." 29 U.S.C. § 653(b)(4). Courts have consistently held that OSHA's broad savings clause protects state tort laws from preemption. See, e.g., Pedraza v. Shell Oil Company, 942 F.2d 48, 54 n.8 (1st Cir. 1991) ("We are aware of no case which holds that OSHA preempts state tort law"). The First Circuit Court of Appeals makes this clear in Pedraza:

 
What little legislative history we have discovered leaves even less doubt that § 4(b)(4) evinces a congressional intent to preserve state tort law from preemption. In a letter to the chairman of the House Subcommittee on Labor, the Solicitor of Labor explained that OSHA "would in no way affect the present status of the law with regard to workman's compensation legislation or private tort actions."

 Id. at 54 n.8.

 Pedraza is a case very similar to the case at bar. The plaintiff sued Shell Oil Company, the manufacturer of the toxic chemical ECH which Pedraza claimed caused his respiratory ailments through overexposure in the workplace. Pedraza alleged, among other things, a failure to warn. Shell contended that Pedraza's claims, which were predicated in part on Connecticut common law and statutory law, were preempted by OSHA. Shell based its argument on that section of OSHA which preempts state regulations that have not obtained federal approval. 29 U.S.C. § 667(b). The Court disagreed, holding that nothing in that section indicated a Congressional intent to "preempt enforcement in the workplace of private rights and remedies traditionally afforded by state laws of general application." 942 F.2d at 52-53. The Court also held that OSHA's savings clause protected state tort law from preemption. Id. at 52.

 Defendants fashion the issue as one of implied versus expressed preemption, and in this way attempt to distinguish this case from Pedraza and all of the other cases which hold that OSHA does not preempt state tort law. They focus on section 1910.1200(a)(2), contending that in that section Congress expressly indicates its intent to preempt any state regulation of warnings on chemicals used in the workplace. If so (and this court makes no holding on that issue), that section might preempt those tort actions which allege that a manufacturer in compliance with the OSHA standard should have included different or additional warnings. The reason for such a result is apparent. If a plaintiff under those circumstances was successful, it would have the effect of making state common law requirements that were different or more stringent than federal standards. As the Supreme Court has noted, "state regulation can be as effectively exerted through an award of damages as through some form of preventive relief." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S. Ct. 2608, 120 L. Ed. 2d 407, 426 (1992) (citing San Diego Building Trades Council v. Garmon, 359 U.S. 236, 247, 3 L. Ed. 2d 775, 79 S. Ct. 773 (1959)).

 Cases interpreting acts with similar preemption clauses hold that inasmuch as a tort action alleges that a manufacturer should have included additional warnings not required by the particular act, that cause of action would be preempted. See, e.g., Moe v. MTD Products, 73 F.3d 179 (8th Cir. 1995) (holding that FIFRA's preemption clause prohibited common law tort actions that would have the effect of creating a state standard); King v. El DuPont De Nemours & Company, 996 F.2d 1346 (1st Cir. 1993); Papas v. Upjohn, 985 F.2d 516 (11th Cir. 1993) (interpreting FIFRA's preemption clause as prohibiting tort law claims that would require different or additional warnings not imposed under FIFRA); See, also, Farner v. Brunswick, 239 Ill. App. 3d 885, 607 N.E.2d 562, 180 Ill. Dec. 493 (2nd Dist. 1992) (holding that since the Federal Boat Safety Act did not require blade guards on boats, and the FBSA contained a preemption clause, no state law tort claim could lie for failure to provide such a guard). These cases reason that if a tort action were allowed, it would amount to state regulation where the federal government had already preempted the field.

 The Supreme Court reached the same conclusion in Cipollone. There, the plaintiff sued a cigarette manufacturer for illness allegedly caused by smoking. The plaintiff contended, among other things, that the manufacturer should have included additional warnings on the package and in advertisements. However, the Public Health Cigarette Smoking Act of 1969 contained a preemption clause which read: "No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this act." The defendant manufacturers were in compliance with the applicable warning standard of PHCSA. The Court held that the Act preempted state tort law claims based on ...


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