Plaintiffs will benefit from Third Circuit's rejection of preemption argument.

The U.S. Court of Appeals for the Third Circuit has sent a message to corporations that defend against products liability suits involving the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA): Federal preemption is not as invincible as it may seem.

A decision in a case of first impression may give hope to plaintiff attorneys who attempt to do battle against preemption, a doctrine based on the U.S. Constitution's Supremacy Clause, holding that federal law trumps state laws that conflict with or are contrary to the federal law. In pesticide-related tort cases, courts have held that FIFRA expressly preempts state-imposed requirements in the areas of labeling and packaging that are "in addition to or different from" those required by the EPA.

In Hawkins v. Leslie's Pool Mart, Inc., Judge Richard Nygaard found that a woman who suffered breathing difficulties from fumes released when she opened a package of swimming pool chlorinator tablets must prevail on her negligent packaging claim against Leslie's Pool Mart, Inc. (184 F.3d 244 (3d Cir. 1999).)

The court's decision--which reversed the trial court's finding--hinged on the fact that the EPA has never promulgated product packaging regulations outside the area of child-resistant packaging. Plaintiff Dawn-Marie Hawkins argued, and the Third Circuit agreed, that because the EPA has regulated packaging only in that area, her claim for defective packaging of the chlorinator tablets is not preempted.

"When no federal packaging requirements have been established, logic dictates that a state law packaging requirement cannot be different from or in addition to the absent federal requirement," Nygaard wrote. "Despite Leslie's Pool Mart's contention that all packaging claims are preempted, we conclude that unless the EPA has specifically considered the packaging methods for a [product like chlorinator tablets], the domain preempted is the narrow area of child-resistant packaging."

Beneficial to plaintiffs

Philadelphia attorney Gerald Williams, who represented Hawkins, said the ruling will benefit plaintiffs who must fend off the federal preemption argument in a products liability case.

"This decision suggests that the tide of cases holding that FIFRA preempts every type of claim is not infinite," Williams said. "There is an end to it.

"Preemption is one of the darlings of the defense bar," he explained. "This reinforces the fact that the courts have to give very careful scrutiny to that argument before they grant it."

The Third Circuit aligned itself with the U.S. Supreme Court's reasoning in Medtronic, Inc. v. Lohr, which held that federal law preempts state law only when the federal government has weighed competing interests, determined how to resolve those interests, and implemented a mandate. (518 U.S. 470 (1996).)

In Hawkins, the court noted that "the record reveals no evidence that the EPA considered the packaging methods at issue" and mandated no federal regulation in the area of pesticide packaging beyond child-resistant packaging.

Williams said the Medtronic precedent helped his plaintiff's case in that "Medtronic gave a signal to the appellate courts that they shouldn't just find preemption willy-nilly--they have to really follow the presumption against preemption."