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KENEPP v. AMERICAN EDWARDS LABS.

July 29, 1994

JANET KENEPP and EARL KENEPP
v.
AMERICAN EDWARDS LABORATORIES, METREX RESEARCH CORPORATION, WAVE ENERGY SYSTEMS, INC., JANET KENEPP and EARL KENEPP v. JOHNSON & JOHNSON MEDICAL, INC.



The opinion of the court was delivered by: EDWARD N. CAHN

 CAHN, C.J.

 In these consolidated civil actions, the plaintiff Janet Kenepp ("Mrs. Kenepp") alleges that she suffered personal injury as a result of her exposure to disinfectant chemicals that the defendants either manufactured, supplied, distributed or sold. Earl Kenepp, her husband, asserts a claim for loss of consortium. Jurisdiction is premised upon diversity of citizenship, 28 U.S.C. § 1332, and venue is proper under 28 U.S.C. § 1391(a). Currently before the court are motions for summary judgment by the defendants Wave Energy Systems, Inc. ("Wave") and Johnson & Johnson Medical, Inc. ("Johnson & Johnson"), and Metrex Research Corporation ("Metrex") (collectively, "the defendants"). For the reasons set forth below, the court will grant the motions.

 I. STANDARD FOR SUMMARY JUDGMENT

 The Federal Rules of Civil Procedure provide that summary judgment is appropriate if "there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of "showing -- that is, pointing out to the district court -- that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Vines v. Howard, 676 F. Supp. 608, 610 (E.D. Pa. 1987). The non-moving party must then go beyond the pleadings to "establish the existence of each element on which it bears the burden of proof," J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991), because "a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323.

 When considering a motion for summary judgment, the court must draw all justifiable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court may not make credibility determinations or weigh the evidence. Id. at 252. If the record thus construed could not lead the trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 II. DISCUSSION

 The relevant facts are not in dispute. Mrs. Kenepp is a nurse at the Lancaster General Hospital in Lancaster, Pennsylvania. Each of the defendants manufactures a disinfectant solution that contain glutaraldehyde, a chemical compound designed to kill infectious viruses in hospital environments. During her employment at Lancaster General, Mrs. Kenepp regularly was exposed to the defendants' products. She now suffers from respiratory disease and other chronic illnesses that this exposure allegedly caused. Her claims sound in strict products liability, negligence and breach of warranty.

 A. Strict Liability

 Under Pennsylvania law, *fn1" a plaintiff may prove that a product is defective by demonstrating that the supplier sold the product with a manufacturing or design defect, or without warnings sufficient to permit safe use of the product. Conti v. Ford Motor Co., 743 F.2d 195, 197 (1984) (citing Sherk v. Daisy-Heddon, 498 Pa. 594, 450 A.2d 615 (Pa. 1982)). See also Nowak v. Faberge U.S.A., Inc., 32 F.3d 755, 1994 U.S. App. LEXIS 16580, *4 (3d Cir. 1994) (collecting Pennsylvania cases). Mrs. Kenepp acknowledges that her main claim involves the defendants' alleged failure to provide adequate warnings as to the safe use of glutaraldehyde solutions. In her complaint, she also alleges that the defendants sold their products with manufacturing and design defects. However, the record is completely devoid of any evidence that the defendants' products contained such defects. Accordingly, the court will grant summary judgment to the defendants on these issues. Celotex, 477 U.S. at 323 ("[A] complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial."). Therefore, Mrs. Kenepp's strict liability claim is limited to a failure to warn theory.

 1. Failure to Warn/Inadequate Labeling

 In their motions, the defendants point out that Congress and the Environmental Protection Agency ("EPA") regulate the labeling of their products pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136-136y. It is undisputed that each of the defendants submitted proposed labels for its product to the EPA for approval pursuant to FIFRA. The EPA approved the defendants' labels, which the defendants then affixed to their products prior to sale.

 The defendants now argue that FIFRA preempts Mrs. Kenepp's state law claims for failure to label the products adequately and failure to provide sufficient warnings for their use. The plaintiffs correctly note that in Cox v. Velsicol Chem. Corp., 704 F. Supp. 85 (E.D. Pa. 1989), this court held that FIFRA does not preempt such claims. Three years after this court's opinion in Cox, the Supreme Court issued its opinion in Cipollone v. Liggett Group, Inc., 120 L. Ed. 2d 407, 112 S. Ct. 2608 (1992) (plurality opinion), which held that the federal cigarette labeling statute preempts state law tort claims for inadequate labeling and failure to warn. The defendants now ask the court to evaluate their FIFRA preemption argument in light of the intervening Cipollone opinion. After careful consideration of the parties' arguments, I conclude that in light of Cipollone, I must hold that FIFRA expressly preempts Mrs. Kenepp's labeling and warning claims.

 Under the Supreme Court's interpretation of the "Supremacy Clause," U.S. Const. Art. VI, cl.2, validly promulgated federal law "preempts" inconsistent or otherwise conflicting state law. Maryland v. Louisiana, 451 U.S. 725, 726, 68 L. Ed. 2d 576, 101 S. Ct. 2114 (1981). In cases where the federal law at issue is an act of Congress, the court must determine whether the state law at issue contravenes the congressional purpose behind the act. Malone v. White Motor Corp., 435 U.S. 497, 504, 55 L. Ed. 2d 443, 98 S. Ct. 1185 (1978) (calling the purpose of Congress the "touchstone" of preemption analysis). The Supreme Court recently has set forth the interpretive technique for determining whether Congress intended legislation to preempt state law:

 
Congress' intent may be "explicitly stated in the statute's language or implicitly contained in its structure and purpose." In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law, or if federal law so thoroughly occupies a legislative field "'as to make reasonable the inference that Congress left no room for the States to supplant it.'"

 Cipollone, 112 S. Ct. at 2617 (internal citations omitted).

 In FIFRA, Congress sought to create a comprehensive licensing and labeling scheme for pesticides and other poisonous devices designed to kill physically and economically harmful organisms. Worm v. American Cyanamid Co., 970 F.2d 1301, 1305 (7th Cir. 1992). Section 136v sets forth the authority of the States to regulate the sale and use of such devices:

 
(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
 
Such state shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from ...

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