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The Federal Hazardous Substances Act pre-empts state causes of action that attempt to impose warning label requirements different from those under the act, the 2nd U.S. Circuit Court of Appeals has ruled for the first time. But in the case of a man who was horribly burned in an explosion that occurred while he primed his Ferrari with Rust-Oleum, the court also ruled that a state cause of action alleging non-compliance with the FHSA is not pre-empted by the act. The 2nd Circuit’s ruling in Milanese v. Rust-Oleum Corporation, 00-7527, reverses part of a lower court’s grant of summary judgment against Vito Milanese Jr., who alleged that the label on the can of Rust-Oleum Metal Primer did not warn about the possibility of flash fire, unlike the company’s Protective Enamel paint, which comes packaged together with the primer. The accident occurred on Dec. 10, 1996, when Milanese walked into his detached garage, opened two small windows near the enclosed, pot-belly stove that heated the garage, and went to work on his car. Ten minutes after he began spraying primer onto the car’s rear passenger-side wheel well, vapors from the primer came in contact with the fire in the stove some 10 feet away. The flash fire that resulted seriously burned more than one-third of Milanese’s body, leaving him permanently disfigured and scarred. He sued in the U.S. District Court for the Eastern District of New York in 1998, claiming that Rust-Oleum failed to include on the primer’s warning label that vapors could cause a flash fire. Senior Judge Jacob Mishler ruled for Rust-Oleum, finding that the primer label was fully compliant with the FHSA, and therefore Milanese’s claims for failure to warn were pre-empted. Mishler ruled inadmissible the affidavit of an expert offered by Milanese concerning whether the primer was “misbranded” within the meaning of the FHSA, a ruling based on the expert’s failure to submit proof of his qualifications to offer such an opinion. And Mishler said allowing that Milanese to amend his complaint would be futile because Milanese’s evidence only supported a pre-empted claim — that the primer warning should have been more explicit — as opposed to a supporting claim that the warning label failed to comply with the FHSA. On appeal, Milanese argued that he had presented several issues of material fact that should have survived summary judgment. One issue was whether flash fire is a principal hazard separate from, and in addition to, the primer’s flammability, an outcome that would trigger the company’s obligation under the FHSA to identify the hazard and include precautionary measures. A second issue was whether the flash fire warning on the enamel container, because it is packaged together with the primer can, leaves the impression that flash fires cannot be caused by the primer’s vapors. Milanese also argued he should have been allowed to amend his complaint. NON-COMPLIANCE ISSUE On the appeal, Senior Judge Joseph M. McLaughlin said the 2nd Circuit was joining “many of our sister circuits” in finding that the FHSA pre-empts “any state cause of action that seeks to impose a labeling requirement different from the requirements found in the FHSA” and regulations under the act. Therefore, the court agreed with Judge Mishler’s dismissal of claims brought for breach of express warranty, strict products liability and negligence in so far as they sought to impose “additional or more elaborate labeling requirements on Rust-Oleum … .” However, McLaughlin said, “we agree with Milanese … that a state cause of action alleging non-compliance with the FHSA would NOT be pre-empted by the act.” Milanese, the court said, made more than conclusory allegations that the primer label, standing alone, does not warn about the principal hazard that vapors may cause a flash fire or indicate that both the primer’s liquid and vapor are extremely flammable, the warnings that appear on the enamel paint label. “Assuming that flash fire from the primer vapor is a hazard distinct from the flammability of the liquid product, we cannot hold that, as a matter of law, the primer can fully comply with the FHSA,” he said, and therefore, the lower court erred in denying Milanese leave to amend his complaint. Milanese’s alternative claim, that the packaging together of the enamel and the primer, with the enamel’s more serious warning being misleading as to the danger of the primer, also appeared to be valid, the court said. But the court remanded that issue to Judge Mishler to analyze the claim “under the traditional futility standard, i.e., whether it would withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),” because the issue had not been addressed by Rust-Oleum, or the lower court, on the summary judgment motion. “If the court concludes that Milanese has stated a valid claim for misbranding in this respect, it should allow this claim to be included in Milanese’s amended complaint,” Judge McLaughlin said. Judges Amalya L. Kearse and Chester J. Straub joined McLaughlin on the panel. Jay L. Feigenbaum of Finz & Finz represented Milanese. Michael B. Sena of Silbert, Hiller & Sena represented Rust-Oleum.

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