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HAWKINS v. POOLMART

June 6, 1997

DAWN-MARIE HAWKINS and JAMES E. HAWKINS, Plaintiffs,
v.
LESLIE'S POOLMART, Defendant.



The opinion of the court was delivered by: PARELL

 PARELL, District Judge

 This matter is before the Court on motion of defendant Leslie's Poolmart ("Leslie's") for summary judgment. Plaintiffs oppose the motion. For the reasons stated in this opinion, the motion is granted in part and denied without prejudice in part.

 BACKGROUND

 Plaintiffs Dawn-Marie and James Hawkins commenced this diversity action on April 19, 1996. Plaintiffs are citizens of the State of New Jersey. (Compl. P 4.) Leslie's is a California corporation "engaged in the business of merchandising swimming pools and swimming pool supplies, including chemicals used to sanitize swimming pools." (Id. P 5.)

 In May, 1994, plaintiffs purchased an eight-pound container of Leslie's Chlorinator Tablets 1 (the "chlorine tablets"). (Id. P 6.) The chlorine tablets are used to eliminate or control the growth of algae, bacteria, viruses, and other plant growth in swimming pools; as such, they are considered pesticides within the meaning of the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136-136y. (Def.'s Br. in Supp. of Mot. for Summ. J. at 1-2 n.1.) There is no dispute that the label on the chlorine tablets' container was registered with and approved by the Environmental Protection Agency ("EPA"). (Supplemental Certification of Cynthia G. Watts, Vice President and General Counsel for Leslie's, PP 2-6; Pls.' Opp'n Br. at 2.)

 On June 1, 1994, Mrs. Hawkins opened the container as directed, and was "struck by a gaseous fume emanating from the product, and immediately suffered a burning sensation in her throat and lungs, and extreme difficulty in breathing." (Compl. PP 10-11.) Mrs. Hawkins alleges that as a result of her exposure to the chlorine tablets, she has suffered "an onset and/or severe exacerbation of chronic asthma and bronchospasm, severe headaches, shortness of breath, respiratory congestion, and chemical irritation of her respiratory tissue and vocal cords." (Id. P 12.)

 Plaintiffs' Complaint contains four state law counts: (1) negligence; (2) strict liability pursuant to § 402 of Restatement (Second) of Torts; (3) breach of warranty; and (4) loss of consortium. Count I alleges that defendant committed the following acts of negligence:

 
a) negligent failure to warn plaintiff of the hazards associated with the product;
 
b) negligent failure to provide adequate directions or precautions regarding the opening, closing and/or storage of the package containing the product;
 
d) negligent formulation of the product; and
 
e) such other negligence as will be ascertained in the course of discovery.

 (Id. P 18.)

 In Count II of the Complaint, Mrs. Hawkins claims that she was harmed as a result of the "unreasonably dangerous and/or defective condition of the product, which was formulated, manufactured, distributed, sold and/or otherwise placed into the stream of commerce by defendant." (Id. P 21.) Mrs. Hawkins alleges the following defects with the product: "a) defect in its manufacture or formulation; b) defect in the packaging of the product; c) absence of adequate precautions, instructions and/or warnings; and d) such other unreasonably dangerous conditions and/or defects as will be ascertained in the course of discovery." (Id. P 22.)

 Count III asserts that Leslie's "expressly and/or impliedly warranted that the product was of merchantable quality, free from defects and fit for its intended purpose," and that Leslie's breached these warranties by selling the product in an unreasonably dangerous and defective condition. (Id. PP 25-26.) Count IV contains Mr. Hawkins' claim for loss of consortium. (Id. P 29.)

 In support of its motion for summary judgment, Leslie's asserts that plaintiffs' claims are preempted by FIFRA. (Def.'s Br. in Supp. of Mot. for Summ. J. at 4.) Leslie's argues that in Cipollone v. Liggett Group, Inc., 505 U.S. 504, 120 L. Ed. 2d 407, 112 S. Ct. 2608 (1992), the United States Supreme Court implicitly held that FIFRA preempts labeling-based claims. (Id. at 12-13.) Defendant contends that all of the federal appellate courts to have considered the issue since Cipollone have concluded that FIFRA preempts state law claims based on the labeling of pesticides. (Id. at 14-15 (citations omitted).)

 In opposition to Leslie's motion for summary judgment, plaintiffs argue that claims of negligent or defective manufacture are not preempted by FIFRA. (Pls.' Opp'n Br. at 5-6.) Plaintiffs contend that none of their claims contradict, change, or interfere with the federal regulatory scheme. (Id. at 6-9.) Plaintiffs assert that the Supreme Court's recent decision in Medtronic, Inc. v. Lohr, 135 L. Ed. 2d 700, 116 S. Ct. 2240 (1996), ...


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