Grenier v. Vermont ( 1996 )


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  • October 11, 1996  UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    No. 95-2084
    ROBERT B. GRENIER, ET AL.,
    Plaintiffs, Appellees,
    v.
    VERMONT LOG BUILDINGS, INC., ET AL.,
    Defendants, Third-Party Plaintiffs, Appellants.
    v.
    DAP, INC. and CHAMPION INTERNATIONAL CORP.,
    Third-Party Defendants, Appellees.
    ERRATA SHEET
    The opinion  of  this Court,  issued  on  September 25,  1996,  is
    amended as follows:
    On page  10, 3rd line down,  replace "Vermont  Life" with "Vermont
    Log".
    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    No. 95-2084
    ROBERT B. GRENIER, ET AL.,
    Plaintiffs, Appellees,
    v.
    VERMONT LOG BUILDINGS, INC., ET AL.,
    Defendants, Third-Party Plaintiffs, Appellants.
    v.
    DAP, INC. and CHAMPION INTERNATIONAL CORP.,
    Third-Party Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Nathaniel M. Gorton, U.S. District Judge]
    Before
    Torruella, Chief Judge,
    Boudin and Stahl, Circuit Judges.
    Carol A. Griffin with whom Lawrence  F. Boyle, W. Joseph  Flanagan
    and Morrison, Mahoney & Miller were on brief for appellants.
    Roger  D.  Matthews with  whom  Nick  K.  Malhotra  and Madan  and
    Madan, P.C.  were on  brief  for  appellees  DAP,  Inc.  and  Champion
    International Corp.
    September 25, 1996
    BOUDIN,  Circuit  Judge.    Joan Grenier  suffered  from
    chronic gastritis for several years, allegedly in reaction to
    the wood preservative applied  to the walls of her  log home.
    She and her family sued Vermont Log Buildings, Inc. ("Vermont
    Log"), the manufacturer of  their home, claiming  negligence,
    breaches  of warranty,  and  violation of  Mass. Gen.  L. ch.
    93A.1   Vermont  Log in  turn filed  a  third-party complaint
    against the  alleged manufacturers of the  preservative.  The
    district   court    granted   summary   judgment    for   the
    manufacturers,  rejecting  Vermont Log's  third-party claims.
    Vermont Log appeals.  We affirm.
    Because the  case was  decided on summary  judgment, our
    recitation  of the facts is  based primarily on  the facts as
    alleged.   Snow v.  Harnischfeger Corp.,  
    12 F.3d 1154
    , 1157
    (1st  Cir. 1993),  cert. denied, 
    115 S. Ct. 56
     (1994).   In
    April 1975, Robert and  Joan Grenier purchased the components
    of a log  house from  an authorized dealer  for Vermont  Log.
    The logs were shipped  to the Greniers' lot in  Massachusetts
    and  assembled there.  The  Greniers moved into  the house in
    May 1975.  Vermont Log had treated the  logs with Woodlife, a
    wood   preservative   containing   the    active   ingredient
    pentachlorophenol.
    1Chapter  93A outlaws  "[u]nfair methods  of competition
    and unfair or deceptive  acts or practices in the  conduct of
    any  trade  or  commerce,"  and permits  awards  of  multiple
    damages and attorneys' fees.
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    In early 1982, Joan Grenier began displaying symptoms of
    gastritis,  and continued to  suffer intermittent stomach and
    back pain  for several years.   A doctor who examined  her in
    April 1987 suspected  that her condition  was caused by  wood
    preservative in the logs of the Greniers' cabin.  Later tests
    revealed an elevated level  of pentachlorophenol in her body.
    When  she   moved   out   of  the   house,   her   level   of
    pentachlorophenol dropped and her symptoms abated.
    At the  time the  Greniers bought their  cabin, Woodlife
    was  registered  as a  pesticide as  required by  the Federal
    Insecticide,  Fungicide,  and  Rodenticide  Act  ("FIFRA"), 7
    U.S.C.     136-136y.  FIFRA  is one  of a  family of  federal
    regulatory statutes  that are  concerned with  health, safety
    and  (in this  case)  the  environment.    Two  of  its  main
    components are a requirement of prior approval of the product
    by the Environment Protection Agency, 7 U.S.C.   136a(a), and
    of  EPA approval of  the labeling supplied  with the product,
    
    id.
       136a(c)(1)(C).
    In  early 1975,  the  Woodlife labeling,  which EPA  had
    approved,  warned that the product was toxic and was not "for
    use or  storage in or  around the home."   The labeling  also
    included  a  section  describing  the uses  of  the  product:
    "PRODUCT USES: Millwork, shingles, siding, structural lumber,
    fences,  trellises, outside  furniture,  vacation homes,  all
    lumber  and wood products."   On September 26,  1975, the EPA
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    approved a modified label for Woodlife.  On the new labeling,
    the section listing product uses no longer included "vacation
    homes" as a use  and added a further warning:  "Do not use on
    interior surfaces which are not to be finished."
    The Greniers filed suit in  1990 against Vermont Log and
    two  allegedly  related  corporate   entities  (collectively,
    "Vermont Log"),  alleging that pentachlorophenol used  in the
    log  home  caused  Joan  Grenier's illness.    The  claims as
    ultimately amended comprised  ten different counts, including
    bare bones  claims for  express and implied  warranty breach,
    for negligence  in design,  manufacture and failure  to warn,
    and under chapter 93A.   Joan Grenier sought damages  for her
    injuries;  her  husband  and  the  Greniers'  three  children
    claimed loss of consortium.
    In  1991,  Vermont  Log  filed a  third-party  complaint
    against  DAP, Inc. and  Roberts Consolidated  Industries, the
    alleged manufacturers, sellers, and distributors of Woodlife.
    Thereafter,  Champion  International, Inc.,  was  added as  a
    third-party  defendant (Roberts  was later  dropped  from the
    case by  agreement).   As amended, Vermont  Log's third-party
    complaint asserted  claims for contribution under  Mass. Gen.
    L.  ch.  231B based  on  negligence by  the  manufacturers of
    Woodlife,  and  claims  for  breaches of  warranty  by  those
    manufacturers.
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    In August 1991,  DAP and Roberts  removed the action  on
    diversity  grounds to  federal  district court  where it  was
    assigned to Judge Zobel.  In  due course, Vermont Log and the
    third-party  defendants  moved for  summary  judgment on  the
    Greniers'  claims on the grounds that they were barred by the
    statute of limitations and that they were preempted by FIFRA.
    On November 4, 1992,  Judge Zobel ruled that Joan  and Robert
    Grenier's warranty  and negligence claims were  barred by the
    statute  of limitations,  but that  their chapter  93A claims
    were timely under  its longer limitations  period.  She  also
    held   that  none  of  the  children's  claims  for  loss  of
    consortium was  barred, since the statute  of limitations was
    tolled during their minority.
    Judge  Zobel further  held that  Vermont Log  could seek
    contribution from DAP and  Champion (for convenience we refer
    to them  hereafter as "the Woodlife  manufacturers"); but she
    ruled  that  Vermont  Log  could  not  obtain indemnification
    because  by selling  the  logs to  the  Greniers Vermont  Log
    participated  in  the  conduct  that  allegedly  damaged  the
    Greniers.     Finally,  Judge  Zobel  concluded   that  under
    Wisconsin Pub.  Intervenor v.  Mortier, 
    501 U.S. 597
     (1991),
    none of the claims was preempted by FIFRA.
    After Judge  Zobel's November 1992 ruling,  the case was
    reassigned to newly appointed Judge Gorton.  In May 1993, the
    Woodlife   manufacturers  filed   new  motions   for  summary
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    judgment, this  time against Vermont Log;  they argued (based
    on  intervening case law) that FIFRA preempted all of Vermont
    Log's remaining  claims against them.   Then-Magistrate Judge
    Ponsor, to whom the case had been referred, held a hearing on
    the motion in September 1993.
    In  July  1994,  Judge   Ponsor,  having  recently  been
    appointed a district judge, relinquished jurisdiction in this
    case.  At the same time he issued a memorandum in a companion
    case brought  by a  different plaintiff against  Vermont Log.
    Judge  Ponsor  there ruled  that  FIFRA  preempted claims  of
    failure to  warn  and breach  of  implied warranty,  but  not
    claims of breach of express warranty and negligent design and
    manufacture.   Jillson  v. Vermont Log  Bldgs., Inc.,  
    857 F. Supp. 985
     (D. Mass. 1994).
    After the present case was returned to Judge  Gorton, he
    ruled that all of  Vermont Log's claims were "related  to the
    labeling  and packaging" of  Woodlife.   While noting  that a
    properly  supported  express  warranty  claim  might  not  be
    preempted,  Judge  Gorton found  Vermont  Log's  claim to  be
    "based  entirely on the label" because "[n]o other factual or
    evidentiary  basis   for  the  claim  was   provided  in  the
    pleadings."  Judge Gorton granted summary judgment to DAP and
    Champion  and  entered a  separate  final  judgment in  their
    favor.  See Fed. R. Civ. P. 54(b).
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    On appeal,  Vermont Log  argues that the  district court
    erred in finding that all  of its claims were preempted:   it
    says that FIFRA preempts only those state-law claims based on
    the labeling  or packaging of pesticides and  it asserts that
    most of its claims are not based on the labeling or packaging
    of Woodlife but rather  upon design and manufacturing defects
    and upon failure to warn unrelated to labeling and packaging.
    We review the district court's  grant of summary judgment  de
    novo, drawing reasonable inferences  in favor of Vermont Log.
    Brown v. Hearst Corp., 
    54 F.3d 21
    , 24 (1st Cir. 1995).
    We  begin, in the classic fashion, by seeking to lay the
    counts   allegedly  preempted   along   side  the   statutory
    preemption clause and the cases that have interpreted it  and
    similar language in other statutes.  Where, as here, Congress
    has included an express preemption clause in the  statute, we
    start  with the language of  that provision.  Medtronic, Inc.
    v.  Lohr, 
    116 S. Ct. 2240
     (1996); Cipollone v. Liggett Group,
    Inc., 
    505 U.S. 504
    , 517 (1992).  FIFRA's preemption clause, 7
    U.S.C.   136v, reads as follows:
    (a) In general
    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) Uniformity
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    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.
    It  is apparent  from subsection (a),  as well  as other
    statutory language, e.g., 7 U.S.C.    136w-1, that FIFRA does
    not wholly  oust the states  from pesticide regulation.   See
    generally Mortier, 
    501 U.S. at 612-13
    .  And  it is  equally
    apparent  from subsection  (b)  that the  state cannot  apply
    different  or  additional  "requirements" for  "labeling  and
    packaging."  It was once an open question, but is now settled
    by   the  Supreme   Court   in  Cipollone   and  Lohr,   that
    "requirements" in  this context presumptively  includes state
    causes of  action as well as laws and regulations.  Lohr, 
    116 S. Ct. at 2251-53
      (plurality opinion), 
    id., 2259-60
     (Breyer,
    J.,  concurring in  part  and concurring  in judgment),  
    id., 2262-63
     (O'Connor, J., Scalia, J., and Thomas, J., concurring
    in  part and dissenting in part); Cipollone, 
    505 U.S. at
    521-
    22 (plurality  opinion), 
    id., 548-49
     (Scalia, J.  and Thomas
    J., concurring in judgment in part and dissenting in part).
    This court so held in  King v. E.I. Dupont de Nemours  &
    Co.,  
    996 F.2d 1346
     (1st  Cir.), cert. dismissed,  
    114 S. Ct. 490
     (1993), which, unlike  Cipollone and Lohr, involved FIFRA
    itself.  Other circuits are in accord.  E.g., Papas v. Upjohn
    Co., 
    985 F.2d 516
     (11th  Cir.), cert. denied, 
    114 S. Ct. 300
    (1993).   Our  case involves  third-party claims--by  the log
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    supplier against the  chemical manufacturers--but nothing  in
    the  preemption  clause  limits   its  effects  to  suits  by
    consumers.   Indeed,  Vermont  Log itself  concedes that  its
    claims based  on the inadequacy of EPA  approved labeling are
    preempted by FIFRA; its objection,  as already noted, is that
    most of its claims do not fit this rubric.
    To appraise this objection requires a closer description
    of Vermont Log's actual claims.  Here,  Vermont Log's amended
    third-party complaint is structured so that, in four separate
    counts, two  different categories  of claims are  directed at
    DAP  and Champion.   In  parallel counts  III and  V, Vermont
    Log's  complaint says  that DAP  and Champion  are or  may be
    liable  to  Vermont  Log  for their  own  "negligent  design,
    manufacture, and failures to  warn"; confusingly, Vermont Log
    then  in the same counts  asserts these wrongs  simply as the
    basis  for  a pro  rata  contribution claim  against  DAP and
    Champion.2
    Then, in  two other parallel counts (IV and VI), Vermont
    Log asserts that DAP  and Champion are or  may be liable  for
    breach of  "express and implied warranties  that said product
    [apparently  a reference  to  Woodlife]  was of  merchantable
    2It is  unclear why  Vermont Log  sought  only pro  rata
    contribution  since  the  negligent acts  alleged  might also
    entitle it to full recovery absent  some bar like preemption.
    Cf.  Fireside Motors, Inc. v. Nissan  Motor Corp., 
    479 N.E.2d 1386
    , 1389 (Mass. 1985) (citing Restatement (Second) of Torts
    886B, cmt. c (1979)).
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    quality,  free   of  hazardous  defects,  and   fit  for  the
    particular  purpose intended."   On  this claim,  Vermont Log
    seeks not pro rata recovery  but compensation for whatever it
    may have to pay to the Greniers plus its costs  in conducting
    the  litigation.   It is  easiest to  discuss all  of Vermont
    Log's  claims   functionally,  that  is,  in   terms  of  the
    defendants' alleged wrongful conduct.
    Failure to warn.  The  most obvious state-law claim  for
    Vermont   Log,  preemption  aside,   is  that   the  Woodlife
    manufacturers should  have warned Vermont  Log that  Woodlife
    was  not  suitable  for  residences.    This  claim,  whether
    presented  as a  negligence claim  or a  claim for  breach of
    implied warranty, is preempted by FIFRA as far as the present
    case is concerned.  Vermont Log concedes this is so as to any
    inadequacy in the labeling as approved by EPA.
    It argues, however, that FIFRA permits a failure to warn
    claim so  far is it is not "based on labeling or packaging."
    Here  lurks a  potentially vexing  problem:  one  can imagine
    claims  based  on   what  was   said  or   not  said   during
    conversations, in correspondence, or  in point of sales signs
    or the  absence of such  signs.  Whether  and to what  extent
    these  kinds of  claims  should  be  preempted depends  on  a
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    reading of section 136v  and related judgments.   The answers
    are far from clear.3
    But  the  structure  of  FIFRA  indicates  that Congress
    intended the pesticide labeling to bear the primary burden of
    informing the buyer of dangers and limitations.  See 7 U.S.C.
    136a(c); 40  C.F.R.   156.10.   If  the plaintiff wants  to
    premise a failure to warn claim on a communication or failure
    to  communicate by some other  means, it is  incumbent on the
    plaintiff to set forth a coherent specific claim.  On appeal,
    Vermont  Log does not even attempt to explain how its failure
    to warn claim  is based  on anything other  than the  alleged
    inadequacy of the labeling approved by EPA.
    Affirmative misstatement.   Under Massachusetts law,  an
    express warranty  may be created  where the seller  makes any
    "affirmation  of  fact or  promise"  or  "description of  the
    goods"  and this statement becomes  part of the  basis of the
    bargain.  Mass.  Gen. L.  ch. 106,    2-213.   An  inaccurate
    statement  might also  support a  recovery under a  theory of
    negligent misrepresentation.  Cf. Danca v. Taunton Sav. Bank,
    
    429 N.E.2d 1129
    , 1133-34  (Mass. 1982).   Such claims  could
    conceivably  be  based  either  on  statements  made  in  the
    3Compare  Chemical  Specialties  Manufacturers Ass'n  v.
    Allenby, 
    958 F.2d 941
    , 946-47 (9th Cir.),  cert. denied, 
    113 S. Ct. 80
      (1992)  (state  statute requiring  point-of-sale
    warnings not  preempted), with Taylor AG  Industries v. Pure-
    Gro, 
    54 F.3d 555
    , 561 (9th Cir. 1995) (failure to warn claims
    based on inadequacy of point-of-sale signs preempted).
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    labeling  or elsewhere;  and the  statements might  be either
    consistent with FIFRA requirements or in violation of them.
    These variations  give rise to  different and  difficult
    preemption questions.  The circuits are not unanimous even as
    to FIFRA itself,  see generally Lowe v.  Sporicidin Int'l, 
    47 F.3d 124
    , 128-29 (4th Cir. 1995),  let alone other statutes.
    As  Lohr illustrates, the signals  from the Supreme Court are
    blurred by  disagreements  within the  Court.   But, in  this
    case, the only affirmative misstatement identified by Vermont
    Log is the statement  in the original labeling  that Woodlife
    was suitable forapplication to "all wood andlumber products."
    This unqualified  statement may have been inaccurate, as
    its later revision suggests, but it was a statement contained
    in  EPA-approved  labeling.    To premise  liability  on  the
    inaccuracy of the statement is in substance to determine that
    a different statement  should have been made in the labeling.
    Yet  the statute itself  prohibits a state  requirement as to
    labeling that is "different"  than that prescribed by federal
    law.  7 U.S.C.    136v.  See Lowe, 
    47 F.3d at 129
    .   Thus the
    only  express  warranty  claim  specifically   identified  by
    Vermont Log is preempted.
    Misdesign  or manufacture.    Whether on  a warranty  or
    negligence theory, recovery might  be premised on mistakes in
    the   design  or   manufacture  of   the  product,   and  the
    manufacturing defect might be generic or a defect in a single
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    item. E.g., Hayes v.  Ariens Co., 
    462 N.E.2d 273
    ,  277 (Mass.
    1984).   Whether such claims are preempted may depend both on
    their precise make-up  and on the underlying  statute.  Under
    FIFRA, the  situation is  complicated  by the  fact that  the
    preemption clause refers only to labeling and packaging while
    the statute  empowers the agency  to regulate the  product as
    well as the description.  7 U.S.C.   136a(a).
    In all  events,  merely to  call something  a design  or
    manufacturing  defect  claim  does  not  automatically  avoid
    FIFRA's  explicit preemption  clause.   In  re DuPont-Benlate
    Litigation,  
    859 F. Supp. 619
    , 623-24 (D.P.R.  1994).  Here,
    Vermont  Log's only  elaborated claim  under this  heading is
    that   Woodlife  was  defectively  designed  or  manufactured
    because  it  was  foreseeable  that   it  would  be  used  on
    residences and it was unfit for  this use.  But this claim is
    effectively no more  than an  attack on the  failure to  warn
    against residential use and therefore is a preempted claim.
    This  certainly does  not mean  that every  misdesign or
    mismanufacturing claim would be debarred by section 136v.  In
    a  batch  of  properly  made  products,  one  item  might  be
    defective  or  tainted;    or  perhaps  one  might  design  a
    pesticide  that,  while properly  approved  and  labeled, was
    unduly dangerous for any legitimate use.  In the former case,
    it  is hard  to  see  why  FIFRA  preemption  would  even  be
    arguable;  in the latter, there  would be at  most an implied
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    preemption  claim,  based not  on section  136v but  on EPA's
    approval  of the  product; and it  is by no  means clear that
    such a preemption claim would prevail.4
    However, in  this instance, Vermont Log  has provided no
    hint  whatever  of  how  Woodlife  has  been  misdesigned  or
    mismanufactured  beyond  Vermont  Log's suggestion--which  we
    regard as  a disguised  labeling claim--that the  product was
    not  fit  for  residential  use.    Vermont  Log's  position,
    implicit  in its brief and explicit in oral argument, is that
    no  such  disclosure  or elaboration  was  required.   It  is
    enough, it contends, that its complaint alleged misdesign and
    mismanufacture in general terms and that not every such claim
    is automatically preempted.
    If the Woodlife manufacturers had squarely argued a lack
    of  evidence in  their motion  for summary  judgment, Vermont
    Log's  position could be rejected  out of hand.   Vermont Log
    bears the burden of  proof at trial and, under  Celotex Corp.
    v. Catrett, 
    477 U.S. 317
    , 322-23 (1986), it would  take very
    little  in  the way  of a  negative  averment at  the summary
    judgment  stage  to  require  Vermont  Log  to  identify  its
    evidence--trialworthy  evidence of  a  specific misdesign  or
    manufacturing defect which  was not  a disguised  mislabeling
    4See Cipollone, 
    112 S. Ct. at 2622-23
    .   Compare Mendes
    v.  Medtronic,  
    18 F.3d 13
     (1st Cir.  1994) (Medical  Device
    Act), with  In re DuPont-Benlate-Litigation, 
    859 F. Supp. at 622-23
     (FIFRA).
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    claim.  Mottolo v. Fireman's Fund Ins. Co., 
    43 F.3d 723
    , 725
    (1st Cir. 1995).
    Whether Vermont  Log got  such due  notice of  a Celotex
    challenge could be  debated.   On the one  hand, the  summary
    judgment  motion was  cast primarily  in  abstract preemption
    terms; on the other hand, Vermont Log  could at any time have
    explained  to the district court  just what kind of misdesign
    or  manufacturing defect claim it was making over and above a
    recast  version of its preempted labeling claim.  As is often
    the case, the answer is to be found more in common sense than
    categorical rules.
    If  we  thought  that  Vermont Log  had  been  genuinely
    misled, we would remand to allow it to identify its misdesign
    or   mismanufacture   claim   and   require    the   chemical
    manufacturers  to  formulate a  new summary  judgment motion.
    Indeed, we might be tempted to follow this course even now if
    Vermont Log had troubled to tell us just what specific design
    or manufacturing  defect it plausibly suspected or how it had
    been  denied   a  promising   opportunity  to  unearth   this
    information through discovery.  But at oral argument our most
    persistent  questions  on  the  subject were  met  only  with
    generalities.
    It is too late in the  day for such gambits.  It  is one
    thing at the outset of a case to ask for indulgence to pursue
    initial discovery; it  is quite another matter, on appeal and
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    after  five years, to ask for a reversal based on theoretical
    possibilities  but without any effort to explain how a remand
    might  bear fruit.  If there are unpreempted claims of design
    or manufacturing  defect, Vermont  Log  has never  adequately
    identified  them,  let  alone   pointed  to  any   supporting
    evidence.
    Indemnification.   As  already explained,  Vermont Log's
    third-party complaint did explicitly request contribution; in
    fact, its negligence counts  were asserted not as independent
    claims for full recovery but merely as the basis for pro rata
    contribution  under the  Massachusetts statute.   Conversely,
    although Vermont  Log now speaks of "indemnification" claims,
    the  third-party complaint nowhere refers to indemnification,
    although  the  warranty counts  seek  the  same damages  that
    indemnification might provide.
    Traditionally, indemnification has comprised  a distinct
    body of doctrine that, to put the matter too crudely, permits
    a vicariously  liable party (e.g., an  innocent principal) to
    obtain  reimbursement   from  a   culpable  party  (e.g.,   a
    blameworthy agent) whose conduct  gave rise to the liability.
    P. Keeton, Prosser and  Keeton on Torts   51,  at 341-44 (5th
    ed.  1984); Decker v. Black  and Decker Mfg.  Co., 
    449 N.E.2d 641
    ,   644-45  (Mass.  1983).     Thus,  indemnification  may
    sometimes  be available  even  when no  other direct  tort or
    contract claim will lie.
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    On  appeal, Vermont  Log  says as  an alternative  final
    argument  that Judge Zobel  erred in rejecting  its "claim of
    indemnity" on  the ground that "[i]demnity  is permitted only
    where  one does  not join the  negligent act   .  . . ."   We
    confess ourselves puzzled by  Judge Zobel's ruling; while the
    principle may be  sound, it  is far from  clear that  Vermont
    Log's  culpability in  this case--at  least on  some warranty
    theories  asserted by the  Greniers--is of a  kind that would
    automatically  preclude an  indemnification claim  by Vermont
    Log against DAP and Champion.
    Yet even if we  assume (dubitante) that Vermont Log
    has asserted a separate  claim for indemnification and assume
    further that it is not barred from indemnification by its own
    participation in the wrong, a  crucial obstacle remains.  The
    body of doctrine  comprising indemnification law varies  from
    state to  state;  but in  Massachusetts,  an  indemnification
    claim does require  a showing  of fault  on the  part of  the
    parties    or   parties   against   whom   the   demand   for
    indemnification is leveled.  Stewart v. Roy Bros., 
    265 N.E.2d 357
    , 365 (Mass. 1970).
    Here, the only allegations of  fault made by Vermont Log
    against DAP and  Champion are the  charges of negligence  and
    breaches of  warranty made  in counts  III-VI of  the amended
    third-party complaint.   We have already  found these charges
    to be inadequate, some because of federal preemption and some
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    because  they are  both too  general and  wholly unsupported.
    And  if these claims  are themselves inadequate,  there is no
    foundation for a showing of fault as to DAP and Champion that
    would permit Vermont Log to claim indemnification.
    There is a final point to  be made that is pertinent  to
    future cases of this kind.  Vermont Log has now placed itself
    in  an  unhappy position  where  the  Greniers might  recover
    against  it while it  would no  longer have  recourse against
    those who supplied it  with Woodlife.  This assumes,  perhaps
    fancifully, that the Greniers, or at  least the minors, might
    structure and then  prove a  claim that managed  at the  same
    time  to avoid  every  type of  preemption  and any  kind  of
    defense based  on Vermont Log's own possible  ignorance.  But
    the theoretical risk is there.
    This  risk arises directly from the  entry of a separate
    final judgment under  Rule 54(b) against  Vermont Log on  its
    third-party claims in advance of  the full resolution of  the
    Greniers' first-party claims against Vermont Log.  If Vermont
    Log had objected to a separate judgment in the district court
    and  appealed on that  issue in this court,  we would be very
    much open to such an argument.   The reason is the overlap of
    first-party  and  third-party claims  in  this  case and  the
    resulting risk (in this case) of inconsistent results.
    But Vermont Log has not  made this argument.  If  it had
    no  objection to the entry  of a separate judgment, certainly
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    the  district  court had  no  obligation to  withhold  such a
    judgment.  Indeed, Vermont Log may have had tactical reasons,
    unknown  to  us,  for  allowing the  uncoupling  of  the  two
    complaints.  Our sole  reason for mentioning the point  is to
    alert district courts in future  cases that such an objection
    to a separate judgment may have significant force.
    Affirmed.
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