CAUSE NO. 36672

BARBARA LYLE, Individually and as Representative of the Estate and as Wrongful Death Beneficiary on behalf of WILBURN LYLE, Deceased,





Table Of Contents


Plaintiff Barbara Lyle submits this memorandum of law in opposition to Radiator Specialty Company’s (“Radiator”) Motion for Traditional Summary Judgment, and respectfully shows as follows:


Radiator’s motion is premised on a misunderstanding of preemption. The Federal Hazardous Substances Act (“FHSA”) can preempt a state law claim only if the state law claim imposes a different labeling requirement. Radiator has not shown any difference between federal and state law in this respect. The FHSA requires the manufacturer to provide “an affirmative statement of the principal hazard or hazards” of its product. 15 U.S.C.A. § 1261(p)(1)(E). Texas law likewise requires a manufacturer to “inform users of hazards associated with the use of its products.” Alm v. Aluminum Co. of America, 717 S.W.2d 588, 591 (Tex. 1986). Radiator has not even attempted to demonstrate any difference between these legal requirements with the respect to the claims in this case. This fundamental failure is fatal to Radiator’s preemption argument.

The Plaintiff has alleged that Radiator failed to warn of the hazards of its benzene-containing product. Fourth Amended Petition, 127-128, 131. More specifically, Radiator’s label never warned of the carcinogenic hazards of benzene. As a result of his exposure to benzene and benzene-containing products, Wilburn Lyle developed non-Hodgkin’s lymphoma, a type of cancer. Mr. Lyle died from his illness in 2004.

Radiator’s motion carefully ignores the United States Supreme Court’s extensive analysis of preemption in Bates v. Dow Agrosciences, LLC, 544 U.S. 431 (2005). Bates expressly rejected many of the arguments advanced by Radiator in this case, explaining that “state law need not explicitly incorporate [federal] standards as an element of a cause of action in order to survive pre-emption.” Id. at 448. Interpreting a similar federal preemption provision, the Court held that state law claims are not preempted to the extent that they are consistent with federal law. Bates specifically requires an analysis of the federal and state law at issue to determine if they are genuinely different. Id. at 453-454. Radiator provides none.

Bates also made clear that claims not related to labeling—such as a claims for design defect or breach of warranty—are in no way preempted by federal labeling requirements:

Rules that require manufacturers to design reasonably safe products, to use due care in conducting appropriate testing of their products, to market products free of manufacturing defects, and to honor their express warranties or other contractual commitments plainly do not qualify as requirements for “labeling or packaging.” None of these common-law rules requires that manufacturers label or package their products in any particular way. Thus, petitioners’ claims for defective design, defective manufacture, negligent testing, and breach of express warranty are not pre-empted.

Id. at 444.

Even if Radiator were able to identify some difference between state and federal law, Radiator has offered no competent summary judgment evidence that its warnings complied with federal standards. In fact, Radiator’s failure to warn of cancer risks violated one of the core requirements of the FHSA: providing consumers with “an affirmative statement of the principal hazard or hazards” of the product. Radiator has not provided any legal or factual support for its federal preemption argument, and its motion should be denied.

Plaintiff’s Causes of Action Are Not Preempted.

Radiator’s motion hinges on the mistaken notion that the FHSA preempts Plaintiff’s claims. For a state “requirement”—be it a law, regulation, or common law rule[1] to be preempted under FHSA, it must (a) relate to cautionary labeling and (b) somehow diverge from the FHSA’s requirements. See, e.g., Milanese v. Rust-Oleum Corp., 244 F.3d 104, 109 (2d Cir. 2001); see also Bates, 544 U.S. at 444 (explaining same concept in analogous context). State law claims that do neither do not conflict with federal law and thus are not preempted.[2]

Tellingly, Radiator never once in its lengthy brief explains how any of Plaintiff’s Texas law claims actually (or even arguably) conflict with the FHSA or its concomitant regulations. That is because they do not.

Only State Law Claims That Are Inconsistent with the FHSA Are Preempted.

Preemption analysis must begin with statutory language speaking to the issue. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517 (1992) (analyzing text of preemptive clause). If a statute is susceptible to more than one reading, the court has a “duty to accept the reading that disfavors pre-emption.” Bates, 544 U.S. at 449. This presumption is particularly forceful in areas traditionally regulated by state law, such as products liability. See id. at 449-50. (“The long history of tort litigation against manufacturers of poisonous substances adds force to the basic presumption against pre-emption. If Congress had intended to deprive injured parties of a long available form of compensation, it surely would have expressed that intent more clearly.”).

FHSA’s preemption clause provides that: “no State…may establish or continue in effect a cautionary labeling requirement applicable to such substance or packing and designed to protect against the same risk of illness or injury unless such cautionary labeling requirement is identical to the requirement under” the FHSA. 15 U.S.C. § 1261, note (b)(1)(A).

Virtually every court to have interpreted this provision has held it to mean that only those state law claims that are inconsistent with federal requirements are pre-empted; state law claims that parallel the substantive federal requirements are not preempted. See, e.g., Milanese, 244 F.3d at 109 (2d Cir. 2001) (“FHSA preempts any state cause of action that seeks to impose a labeling requirement different from the requirements found in the FHSA”); Moss v. Parks Corp., 985 F.2d 736, 740 (4th Cir.), cert. denied, 509 U.S. 906, 113 S.Ct. 2999, 125 L.Ed.2d 693 (1993) (only “more elaborate or different” state law requirements are preempted); Comeaux v. Nat’l Tea Co., 81 F.3d 42, 44 (5th Cir. 1996) (only “other or further warnings requirements” than those in the FHSA are preempted). Radiator itself grudgingly concedes that “the FHSA preempts any state law claim that seeks to impose more elaborate or additional labeling requirements than those mandated by the FHSA and its implementing regulations.” Def. Brf. at 11 (emphasis added).

Indeed, although the Supreme Court has not ruled on preemption in the FHSA context, it has ruled on statutes with very similar language in Meditronic, Inc., v. Lohr, 518 U.S. 470 (1996) (involving the Medical Device Amendments) and in Bates v. Dow Agrosciences, LLC, 544 U.S. 431 (2005) (involving the Federal Insecticide, Fungicide, and Rodenticide Act). In both cases, the Court took pains to explain that only those state law requirements that are substantively different than federal requirements are preempted. State law claims premised “upon violations of common-law duties when those duties parallel federal requirements” are not preempted. Meditronic, 518 U.S. at 495.

The Court’s opinion in Bates is particularly instructive. Bates involved FIFRA, a statute whose construction and language is considered essentially identical to that of the FHSA.[3] See, e.g., Chem. Specialties Mfrs. Ass’n, Inc. v. Allenby, 958 F.2d 941, 945 (9th Cir. 1992) (“[t]he pre-emption issues arising under FHSA are identical to those arising under FIFRA”); Moss, 985 F.2d at 740 n. 3 (“[t]he preemption language of the two statutes is nearly identical”); Comeaux, 81 F.3d at 44 (characterizing the FHSA preemption clause as “almost identical” to that of FIFRA); National Bank of Commerce of El Dorado v. Kimberly-Clark Corp., 38 F.3d 988, 993 (8th Cir. 1994) (agreeing with other circuits that FHSA preemption language is essentially identical to that of FIFRA); Busch v. Graphic Color Corp., 169 Ill.2d 325, 340, 662 N.E.2d 397, 405-406, 214 Ill.Dec. 831, 839 – 840 (Ill. 1996)(“FIFRA provision is substantively equivalent…to the FHSA’s preemption provision”).

Bates held that a state law claim “need not explicitly incorporate [federal] standards as an element of a cause of action in order to survive pre-emption.” Bates, 544 U.S. at 447. Although such an explicit claim would obviously survive preemption,[4] also surviving are any state law claims that impose upon manufacturers duties that are “parallel” with the duties imposed by federal requirements. Id. The Court took special effort to explain that plaintiffs need not engage in semantics to avoid preemption; pleadings may rely on substantively equivalent state common law duties without invoking the “phraseology” of a specific federal requirement. Id. at 454.

Bates did two things: First, it sent a corrective signal to the few courts that had erroneously held the only claims surviving preemption were those that explicitly alleged a violation of federal law or regulations. Id. at 447. Second, it clarified that preemption requires a showing that state and federal duties at issue are genuinely (rather than semantically) different. Id. at 453-54. Accordingly, erroneous lower court decisions that fail to compare state and federal law, or that require a plaintiff plead the violation of a particular federal standard, are no longer persuasive authority. See Section II.C., infra. Radiator’s motion relies extensively on such erroneous lower court opinions.

The Requirements of Texas Law Parallel the FHSA Requirements.

Plaintiff genuinely wonders what elements of her claims Defendant believes impose additional requirements upon it, because Radiator does not say. Plaintiff’s comparison of federal and state requirements reveals no genuine difference between the two. Regarding Plaintiff’s failure to warn claim, make no mistake: Plaintiff’s central allegation is that Radiator’s Liquid Wrench label failed to warn about cancer, which represents a violation of its basic obligations under both state and federal law.

In this area, both state and federal requirements are designed to inform the consumer of product hazards. Texas law requires a manufacturer to “inform users of hazards associated with the use of its products.” Alm v. Aluminum Co. of America, 717 S.W.2d 588, 591 (Tex. 1986). The FHSA requires the manufacturer is required to include on the label “an affirmative statement of the principal hazard or hazards” of the product. 15 U.S.C.A. § 1261(p)(1)(E). Under either formulation, Radiator’s failure to warn about its product’s carcinogenic hazards was a grave breach of its duty. In fact, Plaintiff will agree to submit the issue to the jury using the precise wording of the FHSA: whether Radiator provided “an affirmative statement of the principal hazard or hazards” of its product.

Radiator’s attempt to distinguish federal from state law is to contend that:

Radiator lacked any discretion in deciding whether to include particular warnings, instructions, or directions for use on its Liquid Wrench label. The Act mandates the specific language to be included on the label. To vary, add, or delete language from the label would….make Liquid Wrench a “misbranded” product.

Def. Brf. at 13-14. Plaintiff block quotes this claim because it is spectacularly false. 15 U.S.C.A. § 1261(p)(1)(E) mandates no particular language with respect to the required “affirmative statement of the principal hazard or hazards.” See Chem. Specialties Mfrs. Ass’n, Inc. v. Allenby, 958 F.2d 941, 950 (9th Cir. 1992) (“FHSA does not require any specific language in its warnings.”).

Other provisions of the statute can require certain supplemental language words in addition to the “affirmative statement.” See, e.g., 15 U.S.C.A. § 1261(p)(1)(C),(D). Defendant cannot possibly be suggesting that those provisions govern the content of 15 U.S.C.A. § 1261(p)(1)(E). To the contrary: the provision permits manufacturers to use any words in their “affirmative statement” just so long as those words constitute “wording descriptive of the hazard.” Id. The requirement of an “affirmative statement of the principal hazard or hazards” using “wording descriptive of the hazard” by its terms describes the qualities the warning needs to have, not that the specific words the warning need consist of. What “specific language” is Radiator talking about? It never says.

Radiator also claims that “Plaintiff is in error when she asserts that the Liquid Wrench product label must be evaluated by a jury using the common law reasonable man standard.” Def. Brf. at 2. This assertion makes no sense. All legal requirements, federal or state, are intended to be applied and interpreted reasonably. Does Radiator contend that the FHSA’s requirements should be interpreted by an “unreasonable man” standard?

Plaintiff has brought other claims, including a strict liability claim based on defective design. The “design” defect claim is obviously not preempted by the FHSA, whose preemptive scope is limited to “cautionary labeling” requirements. Bates, 544 444. As the Court explained in Bates, such preemption provisions do not extend to design defect claims or other causes of action that do not involve labeling:

Rules that require manufacturers to design reasonably safe products, to use due care in conducting appropriate testing of their products, to market products free of manufacturing defects, and to honor their express warranties or other contractual commitments plainly do not qualify as requirements for “labeling or packaging.” None of these common-law rules requires that manufacturers label or package their products in any particular way. Thus, petitioners’ claims for defective design, defective manufacture, negligent testing, and breach of express warranty are not pre-empted.

Id. See also Cipollone, 505 U.S. at 525-526 (breach of warranty claims beyond the scope of cigarette warning statute’s preemption clause). Radiator’s refusal to acknowledge the United States Supreme Court’s holding on this issue is baffling.

Finally, Plaintiff notes that even if there were some yet-to-be-articulated difference between the Texas law underlying plaintiff’s claims and federal labeling law, Plaintiff’s state law claims would not be entirely preempted. A claim would only be preempted “to the extent of [the] difference” between state and federal law. Bates, 544 U.S. at 453 (if element of Texas common law fraud is broader than corresponding FIFRA requirement, then “that state-law cause of action would be pre-empted…to the extent of that difference.”) Thus the claim could be tried, but the jury would need be instructed that part of the claim would consist of the differing federal element rather than the preempted state law element. Id. at 454.

Radiator Relies on Erroneous or Inapplicable Case Law.

Defendant’s papers cite numerous cases purporting to favor its position. None warrant granting Radiator’s motion. Larry Koger and Kim Koger v. Ashburn Industries, Inc., et al., Civil Action No. 1:05-CV-00839-TH (E.D. Tex. 2006) (Def. Brf. Ex. E) and Troy Leon Lucas, et al., v. Radiator Specialty Co., et al, Civil Action No. 3:05-CV-00623 (S.D. Tex 2006) (Def. Brf Ex. F.) could have easily been cited by Plaintiff. Both cases hold only that “FHSA preempts litigation seeking to require labeling different than that required” by federal regulation. Koger at 3; Lucas at 1 (same holding). Defendant’s citations of Busch v. Graphic Color Corp., 169 Ill.2d 325, cert denied, Busch v. AMREP, Inc., 519 U.S. 810 (1996) and Frith v. BIC Corp., 863 So.2d 960 (Miss. 2004) likewise do not advance its cause. The Busch court held that preemption applied only to state law requirements “different from” those under the FHSA. Id. at 341. Frith held that the Consumer Product Safety Act preempted a state law claim that “conflicted with federal objectives and standards.” Id. at 967. Radiator has not identified any “different” or “conflicting” requirements in this case.

The interlocutory ruling in David Randall Drake v. Radiator Specialty Co, et al., Civil Action No. 1:03-CV-01349 (E.D. Tex. 2004) (Def. Brf Ex. D) can not survive the Supreme Court’s analysis in Bates. The unreported Drake decision premised its holding on plaintiff’s failure to make “a single reference to a statutory or regulatory section that was violated by the label attached to Liquid Wrench during the relevant period of time.” Id. at 5. As discussed above, Bates unequivocally rejected such a requirement. Nor did the Drake order compare state and federal law to determine if the two were equivalent. Accordingly, Drake no longer has any weight as precedent.

Fowler, et al. v. First Chemical Corp., et al, Civil Action No. 2:05-CV-000026-KS-JMR (S.D. Miss. 2005) is an errant decision without persuasive authority. The Fowler decision wrongly concludes that any claim relating to labeling is preempted, id. at 7 (“the FHSA preempts warnings claim brought under state tort law”), when in fact the very cases it purported to rely upon held that only claims imposing “more elaborate or different” requirements than the federal requirements are preempted. See Worm v. American Cyanamid Co., 970 F.2d 1301 (4th Cir. 1992) (relied on in Fowler, but held that only “more elaborate or different” state claims preempted in FIFRA); Moss v. Parks Corp., 985 F.2d 736, 740 (4th Cir.)(relied on in Fowler, but Moss quoted Worm and held that only “more elaborate or different” state claims are preempted by FHSA); Comeaux v. National Tea Co., 81 F.3d 42, 44 (5th Cir. 1996) (relied on in Fowler, but Comeaux applied the same reasoning as Moss). Fowler went on to find federal question jurisdiction under FHSA, which directly contradicted the Supreme Court’s holding in Merrell Dow Pharmaceuticals, Inc., v. Thompson, 478 U.S. 804 (1986), which held that state law claims rest in part on violations of federal branding laws do not give rise to federal jurisdiction. Fowler is not good authority.

Miles v. S.C. Johnson & Sons, Inc., No. 00 C 3278, 2002 WL 31655188 (N.D. Ill. 2002) involved a factually distinct setting—the child resistant features of Drano packaging—that renders its analysis unhelpful to this Court. To the extent that Miles’ legal pronouncements categorizing design defect and warranty claims as preempted labeling claims were intended to reach beyond Miles’ factual setting, Plaintiff believes such pronouncements could not survive Bates.

C. Bruce Rideout v. Safety Kleen Corp., Civil Action No. 2:03-CV-00634 (S.D. Va. 2004) is an order that is supported by an oral decision where the Court expressly limited the ruling to the facts of that case, which, other than the numerous procedural errors by plaintiff’s counsel, were not discussed by the Court. Rideout has no persuasive or precedential value whatsoever. Not one of the cases cited by Radiator provides a colorable basis for summary judgment in this case.

Radiator Has Submitted No Competent Summary Judgment Evidence to Show That It Ever Complied with Any Federal Requirement.

Even if Radiator’s legal analysis were less flawed, it has failed to provide the Court with any factual basis for granting summary judgment. Federal preemption is an affirmative defense on which Radiator bears the burden of proof. Under Rule 166a(c), a defendant seeking summary judgment on an affirmative defense must “conclusively prove all essential elements of that defense.” Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). The movant must conclusively prove all elements of its defense, and “failure to adduce legally sufficient summary judgment evidence on each element of the defense is fatal.” Trapnell v. Sysco Food Services, Inc., 850 S.W.2d 529, 550 (Tex. App. – Corpus Christi 1992), aff’d, 890 S.W.2d 796 (Tex.1994). “The evidence affecting preemption is construed in the light most favorable to the plaintiff…and the remainder of plaintiff’s allegations are assumed to be true.” Richards v. Home Depot, Inc., 456 F.3d 76, 78 (2nd Cir. 2006).

Even assuming that the FHSA imposes requirements that are different from Texas law, Radiator must prove conclusively that it did in fact comply with federal requirements. See, e.g., Moss, 985 F.2d at 743 (affirming summary judgment because defendant in fact “adequately complied” with federal requirements); Milanese, 244 F.3d at 111-12 (vacating summary judgment because defendant’s label did not in fact fully comply with the substance of the FHSA requirements). Radiator has not offered any such proof.

Radiator’s sole evidence of compliance is a sentence in an affidavit from James D. Wells claiming that “it was the intent and practice of Radiator Specialty Company to label the product, Liquid Wrench, in conformity with the [FHSA].” Def. Brf. Ex. C-2. The affidavit does not have the relevant labels attached and provides no facts of any kind to support Mr. Wells’s assertion. On its face, the affidavit is not competent summary judgment evidence of compliance with the FHSA. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984) (conclusory affidavit without supporting facts insufficient to even raise an issue of fact); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) (conclusory affidavit cannot support summary judgment).

Even if Mr. Wells’s affidavit were accepted at face value, it would not support summary judgment. The affidavit does not state that Radiator actually complied with the FHSA, only that it was the company’s “intent and practice” to do so. Good intentions are not a basis for summary judgment. The factual question is whether Radiator actually complied with the FHSA, which requires an affirmative statement of the product’s principal hazards. Radiator has not produced even a scintilla of evidence on that point. Granting summary judgment on an affirmative defense, without any evidence to support the defense, would be manifestly improper.

Radiator’s No-Evidence Motion Does Not Correctly State the Applicable Law.

No-evidence motions must identify the element or elements of plaintiff’s claim for which there is no evidence. Tex. R. Civ. P. 166a(i). Obviously that presumes the defendant identify the correct elements of the tort plaintiff alleges. Here, Radiator has failed even to identify the correct tort, much less state the elements of that tort correctly. Specifically, Defendant enumerates the elements of negligent economic misrepresentation, as set forth in section 552 of the Restatement (Second) of Torts (“Information Negligently Supplied For The Guidance Of Others”), rather than the elements of product liability misrepresentation, which is set forth in section 402B (“Misrepresentation By Seller Of Chattels To Consumer”). Section 402B was adopted as the law of misrepresentation in the product liability context by the Texas Supreme Court in Crocker v. Winthrop Laboratories, Division of Sterling Drug, Inc., 514 S.W.2d 429, 431 (Tex. 1974). Since Defendant identifies the wrong tort, it has failed to carry its initial burden for a no-evidence summary judgment motion. Plaintiff does not intend to pursue any claims based on market share liability, civil conspiracy, and concert of action in this case. The remainder of Defendant’s no-evidence motion is therefore moot.


Preemption is a defense that is Defendant’s burden to argue and prove. Defendant’s failure to identify any difference between state and federal law, or to prove any of the factual elements of its defense, is fatal to its motion. Radiator’s no-evidence motion is based on an incorrect statement of the law and is likewise facially deficient. Plaintiff respectfully requests Radiator’s motion be denied in its entirety.

  1. Causes of action and the common law rules that undergird them are considered “requirements.” Bates, 544 U.S. at 443.
  2. FHSA preemption does not involve “field preemption,” where Congress intends to occupy an area to the exclusion of the states. The Supreme Court has held that federal statutes completely preempt a particular field in only three circumstances: the Labor Management Relations Act, 29 U.S.C. § 185, Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 560 (1968); the Employee Retirement Income Security Act, 29 U.S.C. § 1144, Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987); and the National Bank Act, 12 U.S.C. § 85, 86, Beneficial Nat’l Bank v. Anderson, 539 U.S. 1 (2003). Products liability is an area governed primarily by state law.
  3. The Bates plaintiffs brought state law claims of negligent failure to warn, breach of express warranty, fraud, violation of the Texas DTPA, strict liability, and negligent testing. Defendants argued and the lower courts held that such claims were preempted by FIFRA. The Supreme Court disagreed.
  4. Of course, state law claims that do explicitly incorporate and rely upon federal violations survive as well. “Nothing in the text of FIFRA would prevent a State from making the violation of a federal labeling or packaging requirement a state offense, thereby imposing its own sanctions on pesticide manufacturers who violate federal law.” Bates, 544 U.S. at 442. See also Milanese, 244 F.3d at 109-10 (claim alleging FHSA violation not preempted).