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Practice Tip: Toxic Cases ' Proceed with Caution

By Lawrence Goldhirsch

All product liability cases are difficult; however, toxic product cases that involve a substance that has caused injury during its use or application pose more of a problem than most others. For example, some spray paints may contain toxic substances that are part of the composition of the product. The warnings on such products are 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 than that required by the Act. Milanese v. Rust-o-leum, 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; claims that allege noncompliance with the Act are permitted, and it is usually a question of fact. So 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, then there is pre-emption, and there is no failure-to-warn case. If the label does not comply, which is often the case, then the lawyer can bring a failure-to-warn case. Such cases cannot rest on the fact that the product is defective in view of the fact that the product was designed to contain the toxic substance.

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