Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Product Liability Law & StrategyKickerFeaturesSectionsNewsLJN Newsletters

Practice Tip: Failure-to-Warn in Toxic Product Cases ' Proceed with Caution

By Lawrence Goldhirsch
March 29, 2006
All product liability cases are difficult; however, a toxic product case (one which involves a substance that has caused injury during its use or application) poses more of a problem than most others. For example, some spray paints may contain toxic substances that are part of the product's composition. Therefore, the product does not have a manufacturing or design defect, but may require special warnings. The warnings on such products may be covered by the Federal Hazardous Substances Act ('FHSA'), which requires hazardous household products sold in interstate commerce to contain cautionary labeling. 15 USCA 1261. (A 'hazardous substance' is toxic, an irritant, or a strong sensitizer if the substance may cause substantial personal injury or illness as a result of any reasonably foreseeable use.)

The first hurdle in a failure-to-warn case is the pre-emption doctrine. The FHSA pre-empts any state causes of action seeking to impose a different or more elaborate labeling requirement from that required by the Act. Milanese v. Rust-Oleum, 44 F.3d 104 (2nd Cir. 2001). Defendants often argue that where the product is covered by the FHSA, no lawsuit can be brought in a
failure-to-warn case. This is not true. The FHSA does not pre-empt all such claims; complaints that allege non-compliance with the Act are permitted and usually present a question of fact. Thus, the very first thing a plaintiff's lawyer must do is to decide whether or not the label that came with the substance ' if it has not already disappeared ' complies with the Act. If the label does comply, any failure-to-warn case is pre-empted. If the label does not comply (which is often the case), then the lawyer can bring a failure-to-warn case.

To determine whether or not the label is adequate, the lawyer must decide if it conspicuously states the 'principal hazards' and 'precautionary methods' the consumer must take to avoid the hazards. For example, in Milanese, supra, the plaintiff, while using a primer and paint, was burned when the primer vapors ignited and a flash fire erupted. The primer label contained the following warning: 'Danger, extremely flammable.' The paint can label said: 'Danger. Extremely flammable liquid and vapor. Vapors may cause flash fire …' Upon first reading, these might appear as sufficient warnings because the injury took place when the vapors ignited and a flash fire erupted; however, the plaintiff cleverly claimed that the primer can was misbranded because the principal hazard associated with the primer, that 'vapor may cause flash fire,' did not appear on the primer label although it did appear on the paint can label.

The district court did not accept that tenuous argument and granted defendant's motion for summary judgment. The Second Circuit reversed and ruled that it was a question of fact whether or not the danger of flash fire caused by the vapor of the primer was a principal hazard separate and distinct from the danger of flammability of the primer liquid. The court said it could not rule as a matter of law that the primer can fully complied with the FHSA. See also Glodzik v. Whink Products Co., 61 Pa. D. & C. 4th 241 (Ct. of Com., Lackawanna Co., 2003) (label warning 'Danger: May be fatal or cause permanent damage. Causes severe burns. … Use only with heavy duty household rubber gloves' was not in compliance with the FHSA where the plaintiff was injured by absorption through the skin).

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.

The Article 8 Opt In Image

The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.

Strategy vs. Tactics: Two Sides of a Difficult Coin Image

With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.

Removing Restrictive Covenants In New York Image

In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?

Legal Possession: What Does It Mean? Image

Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.