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WAERING v. BASF CORP.

May 23, 2001

PAUL F. WAERING AND DARIA A. WAERING, HIS WIFE, PLAINTIFFS,
v.
BASF CORPORATION, AND GOLDEN DISTRIBUTION COMPANY, DEFENDANTS, V. STERLING LOGISTICS CORPORATION D/B/A STERLING QUALITY LOGISTICS AND QUALITY LOGISTICS SPECIALISTS, ADDITIONAL DEFENDANTS.



The opinion of the court was delivered by: (judge Caputo)

MEMORANDUM

This personal injury action arose from Plaintiff Paul Waering's inadvertent exposure to potassium metabisulfite and includes claims of negligence, strict products liability and loss of consortium. Presently before the court are the separate motions for summary judgment of Defendant BASF Corporation ("BASF"), Defendant Golden Distribution Company ("Golden") and Third-Party Defendant Sterling Logistics Corporation ("Sterling"). (Docs. 55, 53, 64.) Because the court concludes that the Wearings' common law claims are not preempted by the Hazardous Materials Transportation Authorization Act of 1994, 49 U.S.C. § 5101 et seq., and that genuine issues of material fact exist as to whether BASF was negligent or should be held strictly liable, BASF's motion for summary judgment will be denied. However, in light of the paucity of evidence in the record against either Golden or Sterling, the court will grant summary judgment to these two parties.

I.

Plaintiff Paul Waering was and remains employed as a forklift operator at Casket Shells, Inc. in Eynon, Pennsylvania. On the morning of December 10, 1998, Waering met a Golden tractor-trailer at the Casket Shells loading area for the purpose of unloading copper sheets from the truck. Though the driver of the truck presented Waering with a shipment manifest indicating that Casket Shells was to receive two crates of copper sheets, Waering alleges that he was not warned either by the paperwork he was shown or by the truck's driver that the truck also contained a shipment of potassium metabisulfite manufactured by BASF. As it turned out, Golden had picked up the potassium metabisulfite at a Sterling warehouse in Illinois for delivery to a BASF customer in New Jersey. The potassium metabisulfite was contained in bags piled on two pallets situated towards the front of the trailer, and was to be delivered to New Jersey as soon as Casket Shells unloaded its copper sheets.
Waering has offered the following account of his exposure to the potassium metabisulfite. After the truck was properly positioned in the open air unloading area, Waering drove his forklift into the truck to remove the first crate of copper, located in the rear of the truck approximately seven feet from the doors. While in the truck, he noticed a foreign taste in his mouth and a strange odor which he could only describe as "like nothing I'd ever smelled before." From his seat on the forklift Waering could see over the one foot high crate to the second crate, which lay two or three feet further from the truck doors. He also observed the pallets of bagged potassium metabisulfite a few feet beyond the second crate. The white bags, which were piled three or four feet high and partially covered in shrink wrap, did not appear to be damaged.
Upon removing the first crate, Wearing mentioned to the driver that there was a strange smell in the truck. The driver agreed that the truck had a strange smell. Waering believes — though he is unsure — that he also asked the driver about the cause of the smell. Regardless of whether Wearing inquired, the driver did not provide any further information, and Waering did not ask to see any written information concerning the contents of the white bags. Instead, Waering re-entered the truck to retrieve the second crate of copper.
As Waering was backing out of the truck with the second crate, his nose began to run. He deposited the crate, signed the shipment manifest, and went to a restroom to blow his nose. Immediately after blowing his nose, Waering was overcome by a fit of coughing which increased in intensity until his coworkers became alarmed and rushed him to a hospital. He was successfully treated at the hospital and released later that morning. However, Waering alleges that he has permanently contracted asthma as a result of his exposure.
The Waerings filed the original complaint in this action on June 3, 1999. The following claims form the heart of their lawsuit: 1) that BASF negligently packaged the potassium metabisulfite for shipping; 2) that Golden acted negligently in shipping the chemical; 3) that both defendants negligently failed to warn Waering of the risk of harm from exposure to the substance; and 4) that both defendants are strictly liable for supplying a product which was defective and unreasonably dangerous due to poor packaging and inadequate warnings. On December 10, 1999, this court granted Golden's motion to dismiss the products liability claim against it, finding that Golden was not a "seller" of the potassium metabisulfite under Pennsylvania law and thus not subject to strict liability for the harm the chemical may have caused. (Doc. 23.) The Waerings filed an amended complaint on December 20, 1999, (Doc. 24), and this court granted Golden's motion to join warehouser Sterling as a third-party defendant on February 24, 2000, (Doc. 39). BASF, Golden and Sterling subsequently filed separate motions for summary judgement, arguing that the Waerings' negligence and strict liability claims are preempted by federal law and that the evidence in the record is insufficient to create a genuine issue of material fact. (Docs. 55, 53, 64.) Defendants' summary judgment motions are now ripe for disposition by the court.
A party is entitled to summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law under the uncontested facts. On the other hand, where the parties dispute facts material to the lawsuit, the moving party must establish that the factual dispute is not genuine, that is, that the evidence adduced by the parties is such that no reasonable jury could return a verdict for the nonmoving party under the governing evidentiary standard. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-53, 106 S.Ct. 2505, 2510-12, 91 L.Ed.2d 202 (1986).

II.

BASF, Golden and Sterling first argue that the Waerings' common law claims are preempted by the federal Hazardous Materials Transportation Authorization Act of 1994, codified at 49 U.S.C. § 5101 et seq. and sometimes referred to as the Hazardous Materials Transportation Act (HMTA). The HMTA expressly preempts any state law "about" the subject of "packing, repacking, handling, labeling, marking and placarding of hazardous material" which "is not substantively the same as a provision of this [Act] or a regulation proscribed under this [Act]." 49 U.S.C. § 5125(b)(1)(B). The Act authorizes the Secretary of Transportation to designate materials as hazardous and to promulgate regulations governing their safe transportation. See 49 U.S.C. § 5103. Because potassium metabisulfite is not listed on the Department of Transportation's Hazardous Materials List, see 49 C.F.R. § 172.101, Defendants argue that common law claims springing from improper packing, handling or labeling of potassium metabisulfite would place requirements on regulated parties different from those imposed under the HMTA. Therefore, the argument goes, such common law claims are preempted by § 5125.
The Supremacy Clause of Article IV of the Constitution operates to make any state law that conflicts with federal law "without effect." Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128, 68 L.Ed.2d 576 (1981). In deciding whether a state law has been preempted by federal law, the touchstone of the court's analysis is the purpose and intent of Congress. Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 222, 11 L.Ed.2d 179 (1963). However, where Congress has enacted a provision which expressly addresses the preemption of state law, the court need not look beyond the language of that provision to ascertain Congress' intent. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517, 112 S.Ct. 2608, 2618, 120 L.Ed.2d 407 (1992).
In Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996), the Supreme Court considered whether the preemption provision of the Medical Device Amendments of 1976 (MDA) preempted common law negligence and strict liability claims arising from the malfunction of the plaintiff's pacemaker. That provision expressly preempts any state "requirement" established "with respect to a device" which differs from a federal requirement, though it grants the Food and Drug Administration the discretion to exempt certain state requirements from preemption. See 21 U.S.C. § 360k. Critical to the Medtronic court's analysis was the fact that the federal regulations in question were general in nature and did not reflect a decision by the federal government as to the specifics of how pacemakers should be labeled or manufactured. 518 U.S. at 494-95, 501, 116 S.Ct. at 2254, 2258. Further, the plaintiffs' claims in Medtronic were not founded on state requirements specifically aimed at the manufacture and labeling of medical devices, but on the general common law doctrines of negligence and strict liability, doctrines not limited to the medical device context nor developed "with respect to" medical devices. Id. The high court reasoned:
The legal duty that is the predicate for the [plaintiffs'] negligent manufacturing claim is the general duty of every manufacturer to use due care to avoid foreseeable dangers in its products. Similarly, the predicate for the failure to warn claim is the general duty to inform users and purchasers of potentially dangerous items of the risks involved in their use. These general obligations are no more threat to federal requirements than would be a state-law duty to comply with local fire prevention regulations and zoning codes, or to use due care in the training and supervision of a work force. These state requirements therefore escape preemption, not because the source of the duty is a judge — made common law rule, ...

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