DocketNumber: No. CV 93 0527351
Citation Numbers: 1994 Conn. Super. Ct. 5048, 9 Conn. Super. Ct. 653
Judges: HENNESSEY, JUDGE.
Filed Date: 5/5/1994
Status: Non-Precedential
Modified Date: 7/5/2016
The defendant filed a revised answer and special defenses on December 7, 1993, claiming, inter alia, that the plaintiff's claim is preempted by
On December 22, 1993, the defendant filed a motion to dismiss, accompanied by a supporting memorandum, an affidavit and several exhibits, claiming that the court lacks subject matter jurisdiction over the plaintiff's action in that it is preempted under the supremacy clause of the United States constitution and the Federal Hazardous Substance Act. Specifically, the defendant argues that since the defendant's product contains hydrofluoric acid, its labeling requirements are exclusively governed by FHSA. Furthermore, the defendant argues that FHSA specifically provides for preemption from any state law requirement related to a risk covered under FHSA.
The plaintiff filed a memorandum in opposition to the motion to dismiss, accompanied by an affidavit and an exhibit, in support of its argument that FHSA does not preempt state law claims, and furthermore, that no private right of action exists under FHSA. On April 14, 1994, the defendant filed a supplemental memorandum of law accompanied by a copy of a new decision from the Colorado Court of Appeals supporting the defendant's position.
There is currently a split of authority among several courts that have considered the issue of whether the FHSA preempts state law claims. Some courts have held that FHSA preempts state law claims for alleged inadequate warnings for hazardous substances on the ground that by passing FHSA, Congress intended to occupy the field of establishing adequate labeling for hazardous products. See Lee v. Boyle MidwayHousehold Products, Inc.,
In this case, it cannot be determined from the allegations of the plaintiff's complaint whether the plaintiff is asserting a failure by the defendant to comply with the labeling requirements of FHSA or a failure to provide warnings beyond those required under FHSA. It is also noted that the plaintiff's complaint contains allegations that the defendant manufactured and sold the Whink product in a defective and dangerous condition and failed to properly investigate and test the product prior to selling it, in addition to the allegations of inadequate warnings. The court finds the reasoning in Reigel Textile Corp. more persuasive with respect to the plaintiff's allegations regarding the defendant's failure to provide adequate warnings. The court finds that the plaintiff's claims regarding inadequate warnings are not preempted by FHSA. The defendant does not provide any caselaw or analysis regarding preemption of the plaintiff's claims of defective manufacture and failure to investigate or test the product. The defendant's motion to dismiss is denied.
Mary R. Hennessey, Judge CT Page 5051