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A worker who claims he contracted a permanent case of asthma after exposure to chemicals is not barred from suing the manufacturer since the federal Hazardous Materials Transportation Authorization Act does not pre-empt his state law negligence and strict liability claims, a federal judge has ruled. In his 23-page opinion in Waering v. BASF Corp., U.S. District Judge A. Richard Caputo of the U.S. District Court for the Middle District of Pennsylvania found that the HMTA pre-empts claims only when the chemical at issue has been placed on the “hazardous materials list” by the U.S. Department of Transportation. Since potassium metabisulfite is not on the list, Caputo held that BASF may be sued under state laws for injuries allegedly caused by the chemical. But Caputo dismissed all claims against a trucking company and a warehouse owner after finding there was not enough evidence to show they were negligent in any way. The plaintiff in the suit, Paul Waering, is a forklift operator at Casket Shells Inc. in Enyon, Pa., who was unloading copper sheets from a truck owned by Golden Distribution Co. on Dec. 10, 1998. Waering claims he had no idea that the truck also contained a shipment of potassium metabisulfite — a chemical used as a food and wine preservative and for acidizing photographic fixation baths — because the Golden driver never warned him. The Golden truck had picked up the chemicals from a Sterling Logistics Corp. warehouse for delivery to a BASF customer in New Jersey. While in the truck, Waering claims he noticed a foreign taste in his mouth and a strange odor “like nothing I’d ever smelled before.” But when Waering told the driver about the smell, he claims he was not given any information about the chemicals. After he finished unloading the copper, Waering claims he was overcome by a fit of coughing that increased in intensity to the point that his co-workers became alarmed and rushed him to the hospital. Although he was successfully treated and released later that day, Waering claims he contracted a permanent case of asthma as a result of his exposure. In his lawsuit, Waering alleged that BASF negligently packaged the chemicals for shipping and that Golden was also negligent due to its handling of the chemicals. The suit also accused both BASF and Golden of failing to warn Waering of the risks of exposure and strict liability. In a previous order, Judge Caputo dismissed the strict liability claim against Golden after finding that it was not a “seller.” Golden later moved to join Sterling as a third-party defendant. All three defendants later moved for summary judgment, arguing that all of Waering’s claims are pre-empted by the HMTA. Since potassium metabisulfite isn’t listed on the DOT’s list of hazardous chemicals, they argued, allowing state common law claims relating to its packing, handling or labeling would impose different requirements from those imposed by the HMTA. STATES CAN REGULATE CHEMICAL, JUDGE RULES But Caputo found that the opposite was true. Since the chemical isn’t listed, he found, the federal government has chosen not to regulate it and the states are free to do so. “In deciding whether a state law has been pre-empted by federal law, the touchstone of the court’s analysis is the purpose and intent of Congress,” Caputo wrote. In Medtronic Inc. v. Lohr, Caputo found that the U.S. Supreme Court allowed state law claims relating to the alleged malfunctioning of a pacemaker and rejected arguments that the claim was pre-empted by the federal Medical Device Amendments Act. “The lesson of Medtronic is a simple one,” Caputo wrote. “General federal requirements for medical devices do not pre-empt general common law claims.” That same logic applies to the HMTA, Caputo said, so that the law pre-empts only those claims in which the federal law reflects a weighing of “competing interests” relating to a specific chemical and the state law would impose requirements different from the federal law. “The federal government has not reached such a conclusion, nor issued any specific mandate, with regard to the packaging, labeling and transportation of potassium metabisulfite,” Caputo wrote. “Critically, defendants have presented no evidence that the federal government has weighed the competing considerations and decided that the transportation of potassium metabisulfite should be free of all regulation.” Under Medtronic and the 3rd Circuit cases that have interpreted it, Caputo found that “the federal government’s apparent silence with respect to this chemical is simply not enough to support the inference that Congress intended [the HMTA] to pre-empt state common law causes of action.” LACK OF EVIDENCE ON PACKAGING BASF also argued that the claims against it should be tossed out since there was no proof that the chemical was defectively packaged at the time it left BASF’s control. But Caputo said Waering had evidence that BASF had improperly packaged the chemical in the past, leading to the escape of strong odors, and that some companies have asked BASF to use thicker bags when shipping it. And the fact that Waering says he didn’t notice any damage to the bags is further proof that the bags themselves were defective, Caputo found. Based on Waering’s testimony, Caputo said, a jury could conclude that he was exposed to the chemical, that it was defectively packaged, and that the defective packaging was the cause of the exposure. But Caputo found that both Golden and Sterling were entitled to summary judgment on the failure-to-warn claims against them because neither Waering nor BASF presented any evidence that the trucking company or the warehouse owner “knew or had reason to know of the dangerousness of potassium metabisulfite.” And while it was a “closer question,” Caputo also found there was not enough evidence to sue either Golden or Sterling for negligence in the handling or shipping of the chemical since the only proof was “the circumstantial evidence of the accident itself.” As a result, Caputo said, Waering would be relying on a “pure res ipsa loquitur theory.” Such a theory is “problematic,” Caputo said, where there are several defendants who had “successive control” over the chemicals. Since neither Waering nor BASF had any direct evidence of negligent mishandling by Golden or Sterling, and since “other responsible causes” could not be eliminated, Caputo concluded that the jury couldn’t “reasonably infer the negligence of either one from the mere fact of the accident.” BASF can’t make the same argument, Caputo said, since Waering has documentary evidence that BASF previously experienced problems with the packaging of potassium metabisulfite. “The additional circumstantial evidence against BASF, in conjunction with the absence of additional evidence against the other two defendants, makes it possible, though not necessary for a jury to infer that BASF was more likely than not the negligent party,” Caputo wrote.

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