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11/12/97 EUGENE M. ROMAH AND MARY LOW ROMAH v.

November 12, 1997

EUGENE M. ROMAH AND MARY LOW ROMAH, HIS WIFE, APPELLANTS
v.
HYGIENIC SANITATION COMPANY, A CORPORATION AND THE DOW CHEMICAL COMPANY, A CORPORATION, APPELLEES



Appeal from the Judgments of the Court of Common Pleas of Allegheny County, Civil Division at No. GD87-22370. Before JAMES, J.

Before: Del Sole, Popovich and Hester, JJ. Opinion BY Popovich, J.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

Filed November 12, 1997

This is an appeal from the summary judgments entered in favor of appellees, Hygienic Sanitation Company and The Dow Chemical Company. Herein, we are presented with a question of first impression in this Commonwealth: Whether state tort claims are preempted by the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C.A. § 136 et seq. Upon review, we affirm the summary judgment entered in favor of Hygienic. However, we affirm only in part the summary judgment entered in favor of Dow, reverse in part and remand for trial in accordance with the provisions of this opinion.

Herein, appellants, Eugene and Mary Lou Romah, raise two questions for our consideration. First, the Romahs ask whether the lower court committed an error of law when it determined the Federal Insecticide, Fungicide and Rodenticide Act preempted appellants' tort claims. Second, appellants question whether the lower court abused its discretion in denying their motion for leave to amend their complaint to include strict liability claims and a claim for punitive damages after they learned that Dow concealed information relevant to the dangerously defective condition of its insecticide from them, the general public and the Environmental Protection Agency.

On December 30, 1987, Eugene and Mary Lou Romah filed a complaint against Hygienic and Dow in which they alleged that Eugene Romah suffered numerous severe and permanent injuries, including inter alia, aplastic anemia and other blood disorders, damage to his nervous system, respiratory problems, partial paralysis and headaches. *fn1 The Romahs contend that Eugene Romah's injuries were caused by his long-term exposure to the pesticide Dursban 2E. From 1981 through 1986, Hygienic used Dursban to spray the bar, kitchen and back room area of Gene's Bar, which was owned and operated by Eugene Romah. Dow is the manufacturer and distributor of Dursban.

In their complaint, the Romahs alleged that Hygienic was negligent:

a) in spraying the Dursban 2E in, around, about and near the area frequented by the husband Plaintiff;

b) in dispensing a highly toxic compound in the area frequented by the husband Plaintiff;

c) in failing to warn the husband Plaintiff of the toxic propensities of the compound;

d) in failing to provide husband Plaintiff with the warning labels or other materials designed to inform users or persons exposed to the compound or its dangerous propensities;

e) in failing to use the compound in designated amounts or solutions;

f) in spraying the compound in and around areas which the Defendant knew or should have known would expose husband Plaintiff to direct contact with the compound;

g) in dispensing a toxic substance in an area where food and beverages were served, thereby contaminating the food and beverages, which husband Plaintiff consumed over a period of time;

h) in polluting the air which husband Plaintiff breathed by spraying the compound in and around the ares frequented by husband Plaintiff;

i) in failing to conform to laws, regulations and directives of the State and Federal Environmental Protection Agencies regarding the dispensing of the toxic compounds;

j) in failing to conform to the laws, regulation and directives of the United States Department of Labor and Industry regarding the dispensing of toxic compounds;

k) in failing to spray or otherwise dispense the compound at times when it was less likely that husband Plaintiff would be exposed to the toxic compound;

l) in failing to use equipment and material and dispensers which would prevent exposure of husband Plaintiff to the product;

m) in failing to use compounds which are less likely to cause the toxic poisoning suffered by husband Plaintiff;

n) in failing to read, follow and implement instructions on the use of Dursban 2E, and to advise, train and instruct its employees in the proper use of the compound.

Complaint, P 6.

More importantly, in their complaint, the Romahs alleged that Dow was negligent in manufacturing, distributing, selling and ultimately exposing Eugene Romah to Dursban, and in particular:

a) in providing a toxic compound to Defendant "Hygenic" (sic) for distribution to the husband Plaintiff's place of business;

b) in failing to warn husband Plaintiff of the dangerous propensities of the compound, Dursban 2E;

c) in failing to provide husband Plaintiff with warning labels, or other materials designed to inform users or other persons who might be exposed to the compound of its dangerous propensities;

d) in failing to inform, supervise, or train buyers of the compound in the proper use of said compound, and to inform "Hygenic" (sic) of the dangerous propensities of the compound;

e) in failing to conform to the laws, regulations and directives of the State and Federal Environmental Protection Agencies regarding the dispensing of toxic compounds;

f) in failing to conform to the laws, regulation and directives of the United States Department of Labor and Industry regarding the dispensing of toxic compounds;

g) in manufacturing, distributing and selling a highly toxic compound which Defendant "Dow" knew or should have known would be distributed to the general public and to husband Plaintiff in particular;

h) in failing to properly research, follow-up, and otherwise determine what injurious effects the compound had caused to members of the public so as to warn the husband Plaintiff;

i) in failing to provide warnings, or other designations on the product, and instructing users of the product in ways to prevent harm to the husband Plaintiff;

j) in manufacturing a compound, which has combined ingredients, which interact on each other to create a dangerous compound, which is highly toxic, and not fit for distribution to the general public, and husband Plaintiff in particular;

k) in failing to maintain the high standard of care required of manufacturers of toxic substances, in the manufacture, storage, transportation, sale and use of the compound Dursban 2E.

Complaint, P 12.

Hygienic answered the Romahs' complaint and denied it acted in a negligent manner. In its new matter, Hygienic set forth various affirmative defenses, including the statute of limitations, assumption of the risk and contributory negligence. Hygienic also alleged that it neither knew nor should have known that the product posed an unreasonable or foreseeable risk of harm to Eugene, given the prevailing state of medical, scientific and industry knowledge. Finally, Hygienic crossclaimed against Dow, to which Dow responded that they had not acted in a negligent manner.

Dow also answered the Romah's complaint and generally denied it was negligent in any fashion in the manufacture, distribution or sale of Dursban and specifically denied each of the Romahs' specific allegations. In Dow's new matter, it also raised the affirmative defenses of the statute of limitations, assumption of the risk and contributory negligence. Dow also averred that the state of medical and scientific knowledge about Dursban was such that Dow neither knew nor should have known that the insecticide presented a foreseeable risk of harm to Eugene in the normal and accepted use of the product. Further, Dow asserted the "Bulk Supplier" and "Sophisticated User" defenses. Dow also crossclaimed against Hygienic.

For the next six and one-half years, the parties engaged in extensive discovery and litigation of various motions which are not essential to our analysis. The next important event, for our purposes, took place on June 6, 1994, and June 20, 1994, when the Romahs filed an amended complaint and a motion for leave to file an amended complaint. In their motion for leave to file an amended complaint, the Romahs alleged that through the facts and circumstances developed during pre-trial discovery, they believed they are entitled to a strict liability count against both Hygienic and Dow and a punitive damages claim against Dow alone.

Specifically, Romahs asked to amend their complaint against Hygienic to include the following averment to P 6:

o) the Plaintiffs rely upon the averments previously mentioned, and therefore avail themselves of the Doctrine of Strict Liability, as contained in the Restatement of Torts, and the various common law cases, and statutes pertinent thereto and applicable hereto.

They also sought to amend their complaint against Dow to include the exact same averment as P 12(l).

In addition, the Romahs sought to include two punitive damages claims against Dow, one for Eugene and one for Mary Lou. As a factual basis for their punitive damages claims, the Romahs alleged that Dow intentionally concealed test results from 1964 which indicated significantly greater blood cell depression in male rats than female rats. The Romahs contend that after the 1964 test, Dow tested its product on female rats only and did not perform follow-up testing to ascertain the full effects and harmful results to animals and humans.

The Romahs also averred that in 1972, Dow tested the effects of Dursban on prison inmates which indicated significant blood cell depression in humans. The Romahs state that Dow did not report the results to them, did not publish these results on the Dursban warning label and did not submit any reports concerning blood cell depression to the Environmental Protection Agency. The Romahs, thus, argue that Dow's actions amount to fraud, concealment and misrepresentation of material scientific facts (i.e., blood cell depression in humans) on Dursban's warning label. Of course, this is relevant to the present cause of action since Eugene allegedly suffers from aplastic anemia which is an acute form of blood cell depression. See, Amended Complaint, PP 18-23.

Thus, the Romahs sought to amend their complaint to include the following averments:

24. The gross and wanton negligence of defendant, DOW CHEMICAL COMPANY, consisted generally as mentioned in paragraphs 18 through ...


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