On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication September 26, 1996.
Before Judges Long, Muir, Jr. and Brochin. The opinion of the Court was delivered by Brochin, J.A.D.
The opinion of the court was delivered by: Brochin
The opinion of the Court was delivered by BROCHIN, J.A.D.
Plaintiff Peter Lewis was very badly burned over 25 percent of his body when the flame from the pilot light of a gas oven or a spark from a refrigerator motor ignited the gaseous hydrocarbon propellants that were released into the air by his use of two cans of defendants' aerosol insecticide, Combat Room Fogger. Plaintiff instituted this products liability action for damages against the manufacturer, defendant United Industries Corporation, and the distributor, defendant American Cyanamid Company. He claims that his injuries were caused by the defective design, manufacturing and labeling of the product.
The defective labeling claim was dismissed before trial on the ground that it was preempted by FIFRA, the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.A. §§ 136a - 136y. Only the claims of defective design and manufacturing were submitted to the jury.
The trial Judge summarized the facts of the case in a written opinion which he prepared after the verdict to explain his decision of several post-trial motions. His factual summary conforms in all material respects to our understanding of the record. It describes the facts as follows:
United Industries manufactured a room fogger known as "Combat" which was marketed to kill roaches and fleas. The package in which the Combat canisters were sold contained the following warning:
1. Cover exposed food, dishes and food handling equipment. Open cabinets and doors to areas to be treated. Shut off fans and air conditioners. Put out all flames and pilot lights. Close doors and windows.
2. Tilt top of can away from face. Press valve all the way down, hooking the catch.
3. Then place fogger on stand, table or floor in center of room with the valve locked open, with several layers of newspaper or pad under fogger. Leave treated area for 2 hours.
4. After 2 hours, open all doors and windows, turn on air conditioners and fans and let the treated area air for 30 minutes.
On July 4, 1989 the plaintiff, Peter Lewis, made use of the fogger. The manner in which he did so comes from his testimony and is not in dispute. He bought a box containing three Combat six-ounce cans of fogger. He had a roach problem in the kitchen. He put one can of fogger underneath a counter and another can underneath a range. He then activated both cans and left the room. After he left the room he observed that foam was dripping down the can which he had placed underneath the counter and he entered the room in order to correct the operation of that fogger by manipulating the valve through which the effluent was released. He did so and then, for some reason not important in this decision, a can burst into flames and he was severely burned over about twenty-five percent of his body.
Aside from the question whether the fogger which was foaming was defectively manufactured, the primary issue at trial was whether the propellant used in the manufacture was an appropriate one. The fogger contained a water-based solution with a flammable hydrocarbon propellant. Wilbur Boyer, plaintiff's expert witness on the subject, testified that the use of a flammable propellant was a design defect because a non-flammable propellant known as dymel, or P-22, was available.
Montford Johnsen, testifying on behalf of defendant, stated that in the early 1980s it was known that P-22 could cause birth defects and also that it was an ozone depleter. He testified also that if P-22 were used, the pressure in the can would have to be sixty percent higher than with the hydrocarbon which actually was used, in which case the can would be in great danger of exploding. However, on cross-examination he testified also that he had been told by a chemist from DuPont, the producer of P-22, that it was not dangerous. There also was evidence that P-22 was used in the 1980s as a propellant for other devices.
In plain terms, the problem which the jury faced was whether, in order to protect against foreseeable misuse, the manufacturer should have employed the non-flammable propellant instead of the propellant which was used. The only non-flammable propellant suggested was P-22 which, even in the 1980s, was considered by a significant portion of those manufacturing such devices to carry a danger of causing birth defects and depleting the ozone layer. That these considerations were substantial was borne out by the fact that at the time of trial, P-22 was prohibited for all uses because of these dangers. *fn2
We supplement this statement by mentioning two additional facts which are pertinent to our opinion. First of all, plaintiff claimed that he had extinguished all the pilot lights in his kitchen before he activated the two cans of Combat Room Fogger. However, there was evidence that he had failed to extinguish an oven pilot light, and the jury could have found that that was the source of the flame which ignited the propellant gases. Secondly, the label also contained the following warnings:
Do not use or store near heat or open flame. Do not puncture or incinerate container. Exposure to temperatures above 130 degrees F. may cause bursting. . . . . Store in cool dry area away from heat or open flame.
The jury returned its verdict by answers to special interrogatories. It found that there was no manufacturing defect. It answered "No" to the question whether "the product, as designed, [had] a design defect." It answered "Yes" to the question whether plaintiff "misused the product . . . or used it in a way that was not reasonably foreseeable," but it found that "the misuse [was] objectively foreseeable to the manufacturer" and that, taking that finding into consideration, the design of the product was defective and the design defect was a proximate cause of the accident. Next, the jury determined that "the plaintiff voluntarily and unreasonably proceeded to encounter a known danger in the manner in which he used the Combat Room Fogger" and that his "voluntary and unreasonable encountering of a known danger [was] a proximate cause of the accident." The jury apportioned 50 percent of the total fault to plaintiff and 25 percent to each of the two defendants. It assessed total damages at $275,000.
The trial Judge interpreted the jury's verdict to mean that "the manufacturer should have taken measures in light of the possible foreseeable misuse of the product to so construct the fogger that, even with such misuse, it would not be flammable. The jury's verdict made it clear that under normal use conditions it did not consider the fogger unsafe." The arguments presented on appeal indicate that all of the parties concur in this interpretation of the verdict.
Following the verdict, plaintiff moved for additur or, alternatively, for a new trial on damages only and defendants moved for judgment notwithstanding the verdict. The trial Judge ruled, first of all, that because "there was sufficient evidence of the reality" of the "ultimately-proven risks" of using P-22 as an aerosol propellant, i.e., that it would cause birth defects and deplete the stratospheric ozone layer, the court rather than the jury should make the "policy decision" whether "the manufacturer nevertheless was required to incur these risks rather than the risk of using a flammable propellant." The court decided that there was "a substantial, real and not imaginary risk in using the alternative"; that a manufacturer cannot be required to incur that risk; and, quoting N.J.S.A. 2A:58C-3a(1), that Combat Room Fogger was not defectively designed because there was no "'practical and technically feasible alternative design that would have prevented the harm without substantially impairing the reasonably anticipated or intended function of the product.'" See Cepeda v. Cumberland Eng'g Co., 76 N.J. 152 (1978), overruled on other grounds by Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 177, 406 A.2d 140 (1979). The trial Judge also ruled, as a pretrial Judge had done, that plaintiff's claim based on defective labeling was preempted by FIFRA, that the label must therefore be deemed adequate, and that the manufacturer and distributor were entitled to rely on a presumption that a user of the product would heed the label warnings. Since the accident would not have occurred if plaintiff had conformed his conduct to those warnings by placing the aerosol can in an unobstructed location in the center of the room, leaving the room immediately after initiating the discharge of its contents, and remaining out of the room for two hours afterwards, the Judge held that the defective design of Combat Room Fogger was not the proximate cause of plaintiff's injuries. He therefore denied plaintiff's motion for additur or, alternatively, for a new trial on damages, and he granted defendants' motions for judgment notwithstanding the verdict.
On appeal, plaintiff argues:
Point I. The entry of judgment NOV should be reversed since the court erred in holding that the only proximate cause of the accident was the manner in which the plaintiff used the product.
Point II. The court erred in entering judgment NOV by weighing the evidence and making inaccurate findings of fact in violation of the judgment NOV standard, and by applying an incorrect legal standard to plaintiff's alternative design.
Point III. The court erred in denying the plaintiff's motion to strike the comparative negligence defense, and in charging the jury on the issue of comparative negligence.
Point IV. The plaintiff is entitled to a new trial on damages because of the court's failure to adequately instruct the jury.
Point V. Because FIFRA does not preempt plaintiff's failure to warn and fraud claims, the partial summary judgment and order dismissing these claims should be reversed.
We deal first with the question whether the Law Division was correct in holding that plaintiff's claims based on the alleged inadequacy of the Combat Room Fogger label are preempted by a provision of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.A. § 136v. That provision reads as follows:
(a) A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.
(b) Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.
All parties agree that the label on the Combat Room Fogger is subject to FIFRA and has been approved by the Federal Environmental Protection Agency (EPA). The trial Judge and a Law Division motion Judge concluded that the decision of the United States Supreme Court in Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992), required them to hold that FIFRA prohibits New Jersey from imposing a damage remedy, whether by decisional or statutory law, based on any alleged defect in any pesticide label approved by the EPA.
The statutory provisions at issue in Cipollone were sections 4 and 5 of the Federal Cigarette Labeling and Advertising Act of 1965 and the Public Health Smoking Act of 1969, 15 U.S.C.A. §§ 1331-1340. Section 5 of the 1965 Act, captioned "Preemption," stated:
(a) No statement relating to smoking and health, other than the statement required by section 4 of this Act, shall be ...