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SOWERS v. JOHNSON & JOHNSON MED.

November 1, 1994

SHARON SOWERS and HARRY SOWERS, Her Husband, Plaintiffs
v.
JOHNSON & JOHNSON MEDICAL, INC., METREX RESEARCH CORPORATION, and WAVE ENERGY SYSTEMS, INC., Defendants.



The opinion of the court was delivered by: FRANKLIN S. VAN ANTWERPEN

 VAN ANTWERPEN, J.

 November 1, 1994

 By motions filed on September 8, 9, and 30, 1994, the defendants in this products liability action filed on May 3, 1994 have each moved for summary judgment, asserting that § 136v(b) of the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136-136y, preempts plaintiffs' claims. This court exercises jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332(a)(1), and venue lies in this district pursuant to 28 U.S.C. § 1391(a)(2). For the reasons stated below, we will grant defendants' motions.

 Rule 56(c) of the Federal Rules of Civil Procedure provides for summary judgment where the

 
pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

 "The party moving for summary judgment must demonstrate that, under the undisputed facts, the non-movant has failed to introduce evidence supporting a necessary element of his case." In Re Phillips Petroleum Sec. Litig., 881 F.2d 1236, 1243 (3d Cir. 1989). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. See Celotex Corp. v. Catrett, 477 U.S. 317, 321 n.3, 106 S. Ct. 2548, 2552 n.3, 91 L. Ed. 2d 265 (1986) (quoting Fed. R. Civ. P. 56(e)); see also First Nat'l Bank v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986).

 II. FACTUAL BACKGROUND

 No party disputes the following facts. From 1973 to January 1992 plaintiff Sharon Sowers, a registered nurse, worked at Lancaster General Hospital in Lancaster, Pennsylvania. Her duties there included sterilizing medical equipment using various cold sterilant/disinfectant products containing the chemical glutaraldehyde. These sterilant/disinfectants were supplied, distributed, manufactured and/or sold by the defendant corporations Johnson & Johnson Medical, Inc. ("Johnson & Johnson"), Metrex Research Corporation ("Metrex"), and Wave Energy Systems ("Wave"). Each product is a "pesticide" within the meaning of FIFRA, and, at all relevant times, was registered with and bore a label approved by the Environmental Protection Agency ("EPA") as required by FIFRA.

 Ms. Sowers now claims that she suffered personal injury as a result of her exposure to the defendants' products. In the first three counts of her complaint, she advances theories of negligence, strict liability, and breach of express and/or implied warranties. In the fourth count, her husband, plaintiff Harry Sowers, brings a claim for loss of consortium.

 III. DISCUSSION

 FIFRA requires virtually all pesticides distributed or sold in the United States to be registered with the EPA. See 7 U.S.C. § 136a(a). As part of the registration process, an applicant must submit for EPA approval "a complete copy of the labeling of the pesticide, a statement of all claims to be made for it, and any directions for its use." Id. at § 136a(c)(1). Before registering a pesticide, the EPA must first determine that its composition is such as to warrant the proposed claims for it, that its labeling complies with the requirements of FIFRA, and that it will perform its intended function "without unreasonable adverse effects on the environment." See id. at § 136a(c)(5). "The term 'unreasonable adverse effects on the environment' means any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide." Id. at § 136(bb). Once the EPA registers a pesticide and approves its label, that label may not be changed without prior EPA approval, except that certain minor changes may be made after merely notifying the EPA. See id. at § 136a(f).

 Section 136v of FIFRA, entitled "Authority of States," provides ...


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