Noffsinger v. The Valspar Corporation et al
Filing
482
Memorandum Opinion and Order signed by the Honorable Robert W. Gettleman on 7/24/2014: Defendant's motion for summary judgment is granted on all counts. Status hearing date of 8/5/2014 is stricken. Civil case terminated. Mailed notice (gds)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STEVEN NOFFSINGER,
)
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Plaintiff,
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v.
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THE VALSPAR CORPORATION, a Delaware
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Corporation, d/b/a C&M COATINGS and d/b/a
)
VALSPAR INDUSTRIAL, and ENGINEERED
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POLYMER SOLUTIONS, INC., d/b/a
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VALSPAR COATINGS, a Delaware Corporation, )
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Defendant.
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No. 09 C 0916
Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff Steven Noffsinger filed a three-count amended complaint alleging that defendant
Valspar Corporation (“Valspar”) is liable for injuries plaintiff allegedly suffered when he was
exposed to a leaking container of Dynaprime, one of Valspar’s products, during a cross-country
shipment. Specifically, plaintiff alleges that defendant is liable under a theory of strict product
liability due to a defectively manufactured drum (Count One); that defendant was negligent in
evaluating and using a defective drum (Count Two); and that defendant was negligent under a
theory of res ipsa loquitur (Count Three). Defendant has filed a motion for summary judgment
on all counts, arguing that the Hazardous Materials Transportation Act (“HMTA”) and the
Hazardous Material Regulations (“HMR”) preempt plaintiff’s claims.1 For the reasons described
below, defendant’s motion is granted.
1
In advance of trial, defendant filed a “Brief Regarding Plaintiff’s Proposed Jury
Instructions,” which essentially argued that plaintiff’s proposed instructions, which cited the
HMTA and HMR as a basis for liability, were inappropriate and a misstatement of federal law
and regulations. Due to the nature of these arguments, the court converted defendant’s “brief”
into a motion for summary judgment on the basis of federal preemption.
BACKGROUND2
On February 13, 2007, Valspar shipped seventy-two 55-gallon steel drums containing
Dynaprime, a solvent-based coating manufactured by Valspar. MCT Transportation was
retained to deliver the shipment to a warehouse in Santa Fe Springs, California. Plaintiff, an
over-the-road truck driver, was directed by MCT Transportation to pick up and transport the lot
of drums. Plaintiff arrived to pick up the shipment at Valspar’s manufacturing facility in
Kankakee, Illinois, at 3:30 p.m. CST on the afternoon of February 13, 2007. Valspar personnel
loaded the drums onto plaintiff’s trailer in 18 rows consisting of four drums in each row. The
drums used in the shipment were reconditioned by Mid-America Steel Drum Company, Inc.
(“Mid-America”). After the drums were loaded by Valspar personnel, plaintiff stepped inside the
trailer and applied two load locks to the last row of drums nearest the trailer doors. Plaintiff
visually checked the load and then left and went outside. Once the trailer doors were closed,
plaintiff applied the trailer door seal provided to him by defendant.
On February 17, 2007, at around 8:55 a.m. CST, plaintiff’s dog, Boomer, who traveled
with plaintiff, woke him up. Upon waking, plaintiff detected a strong smell of paint fumes.
Plaintiff exited his truck and found yellow paint dripping from the left front (driver’s side) drain
or ventilation hole of the trailer onto the left side tires and the asphalt pavement. Plaintiff also
found paint leaking out of the drain holes at the two rear corners of the trailer and onto the stone
and dirt ground. Plaintiff contacted the dispatcher at MCT Transportation from the Flying J
Truck Stop in Barstow, California, to report a leak from the shipment. Approximately three
hours after plaintiff contacted MCT Transportation, the Barstow Fire Protection District arrived
2
The following facts are, unless otherwise specified, undisputed.
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at the Flying J Truck Stop. A representative for Emergency Response Training Solutions arrived
at the scene approximately one hour later. The Dynaprime that leaked came from a crack in the
bottom of one of the steel drums inside the trailer.
Plaintiff has sued defendant for injuries he allegedly sustained as a result of the leak.
Count One alleges that the drum was defectively manufactured and was in an unreasonably
dangerous condition, and that defendant is liable under a theory of strict product liability. Count
Two alleges that defendant was negligent for: (1) failing to determine whether the drum was free
of defects that might compromise the drum’s integrity; (2) using the defective drum; (3) failing
to act in a reasonably careful and prudent manner by delegating to its drum supplier defendant’s
duty to ensure that its drums were sufficient for safe transportation of its hazardous product; and
(4) failing to take necessary precautions to ensure that the drum was sufficiently sound to contain
Dynaprime. Count Three alleges that, under a theory of res ipsa loquitur, defendant must have
been negligent because the leak occurred and the drum was in the exclusive control of defendant.
DISCUSSION
I.
Legal Standard
A movant is entitled to summary judgment under Rule 56 when the moving papers and
affidavits show that there is no genuine issue of material fact and the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Unterreiner v. Volkswagen of Am., Inc., 8 F.3d
1206, 1209 (7th Cir. 1993). Once a moving party has met its burden, the nonmoving party must
go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial.
See Fed. R. Civ. P. 56(c); Becker v. Tenenbaum–Hill Assocs., Inc., 914 F.2d 107, 110 (7th Cir.
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1990). The court considers the record as a whole and draws all reasonable inferences in the light
most favorable to the party opposing the motion. See Green v. Carlson, 826 F.2d 647, 650 (7th
Cir. 1987); Fisher v. Transco Services–Milwaukee Inc., 979 F.2d 1239, 1242 (7th Cir. 1992).
A genuine issue of material fact exists when “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993). The nonmoving party
must, however, do more than simply show that there is some metaphysical doubt as to the
material facts. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will
be insufficient; there must be evidence on which the jury could reasonably find for the
[nonmoving party].” Anderson, 477 U.S. at 252.
II.
Preemption
Defendant argues that the Department of Transportation’s regulations expressly preempt
any claim that Valspar should have undertaken any steps with respect to the Dynaprime
shipment that are different from or in addition to those mandated by the HMTA or the HMR.
The HMTA was enacted in 1975 and amended in 1990 and 2005. The Act empowers the
Secretary of Transportation to “prescribe regulations for the safe transportation, including
security, of hazardous materials in intrastate, interstate, and foreign commerce.” 49 U.S.C. §
5103(b)(1). Pursuant to this authority, the Department of Transportation (“DOT”) promulgates
the HMR. 49 C.F.R. §§ 171–180.605. The regulatory scheme constructed by the HMTA and
HMR controls during the interstate movement of hazardous materials, as well as during various
other stages of transportation. 49 C.F.R. § 171.1(a)–(c). Because Congress enacted the HMTA
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with the purpose of developing “a uniform national scheme of regulation regarding the
transportation of hazardous materials,” defendant argues that the federal scheme preempts any
state laws placing responsibilities on shippers not outlined in the HMTA and HMR. Roth v.
Norfalco LLC, 651 F.3d 367, 370 (3d Cir. 2011). The parties do not contest that Dynaprime is a
hazardous material covered by the HMTA, and plaintiff concedes that he must identify a duty set
forth in the regulations that defendant is alleged to have breached to impose any liability.
To avoid preemption, plaintiff argues that defendant violated duties set forth in the HMR
and HMRA, specifically 49 C.F.R. §§ 173.24(b), 173.30, and 177.834, and thus is liable to
plaintiff for his alleged injuries.3
The first regulation, 49 C.F.R. § 173.24(b), states in relevant part: “Each package used
for the shipment of hazardous materials under this subchapter shall be designed, constructed,
maintained, filled, its contents so limited, and closed, so that under conditions normally incident
3
Plaintiff bases his arguments regarding the alleged HMR and HMTA violations on a
theory that the leak cam from a crack in the bottom of one of the drums, which was caused when
Valspar employees loaded the drum onto a stone, rock or other sharp object in the bed of
plaintiff’s truck. Plaintiff argues that this version of events is supported by the conclusions
reached in the opinion of Valspar’s expert Richard Lynch, Ph.D. (Who was not deposed by
plaintiff), and the parties argue at length about the admissibility of this report (“the Lynch
report”). Plaintiff argues that the Lynch report constitutes a party admission and is binding on
Valspar. Valspar argues that the report is inadmissible. Reports of this nature are usually
considered hearsay and are inadmissible. Thakore v. Universal Machine Co. of Pottstown, 670
F. Supp. 2d 705, 725 (N.D. Ill. 2009). Further, the court disagrees with plaintiff’s
characterization of the “conclusions” reached in the report; the Lynch report clearly states that
“[t]he actual cause of the crack cannot be absolutely determined as the drum is not available for
forensic examination and there is insufficient information for a fully definite determination.”
The court also notes that the issue of the Lynch report is immaterial because there is no
allegation anywhere in the complaint that the leak resulted from negligence related to the loading
of the drums; plaintiff has consistently alleged that the leak was the result of a defect in the drum
itself. However, given the court’s conclusion that plaintiff has not identified any federal
regulation that defendant may have violated, the court need not rule on the admissibility of the
report.
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to transportation– . . . there will be no identifiable (without the use of instruments) release of
hazardous materials to the environment.” Plaintiff asserts that this regulation appears in the Part
of the HMR entitled “Shippers – General Requirements for Shipments and Packagings,” and that
defendant is therefore responsible for the tasks set forth within. Specifically, plaintiff argues that
the shipper does not have to be the entity that actually designs, constructs, maintains or fills the
package, but the shipper is responsible for making sure those things are done in compliance with
the HMTA and HMR to assure that the package is safe. Plaintiff further argues that the shipper
can seek indemnification from another entity responsible for a third-party’s injuries resulting
from violations of this regulation, and notes that otherwise, injured parties would be left with no
recourse when they had no ability to know that a vendor was used by the shipper. This argument
is of critical importance to plaintiff because two of the three counts in plaintiff’s complaint
allege that defendant is liable based on the defective nature of the drum and defendant’s alleged
negligence in evaluating the drum prior to shipment. If the regulatory scheme does not hold
defendant responsible for the manufacture and certification of the drum, then plaintiff’s first two
counts related to the allegedly defective condition of the drum are preempted.
The court finds plaintiff’s argument regarding § 173.24(b) unpersuasive. As defendant
notes, the first section of Part 173 explicitly states that “this part includes: ... Inspection, testing,
and retesting responsibilities for persons who retest, recondition, maintain, repair and rebuild
containers used or intended for use in the transportation of hazardous materials.” 49 C.F.R.
§173.1(a)(3). Therefore, the Part cannot be read to relate solely to shippers’ responsibilities
because it explicitly references the responsibilities of manufacturers and reconditioners as well.
Further, a reading of the entirety of § 173.24(b) demonstrates that it does not impose these duties
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on shippers, but rather sets out the general requirements for packaging and packages. The
responsibilities of shippers are set out in other sections of Part 173, namely § § 173.22 and
173.24a.4
Additionally, other sections of Part 173 make it clear that it is not the responsibility of the
shipper to design, construct, or maintain the containers, as plaintiff argues. Section
173.22(a)(3)(i) states that, in making the determination of whether a container “has been
manufactured, assembled, and marked in accordance with” the relevant regulations, a shipper
may accept “the manufacturer's certification, specification, approval, or exemption or special
permit marking.” Defendant was therefore entitled to rely on the reconditioner’s mark when it
accepted the drum in question and is not ultimately liable for any potential defects attributable to
the reconditioner. Count One, which alleges strict product liability based on the allegedly
defective drum, is therefore preempted by the regulatory scheme, which places responsibility for
the container on the manufacturer or reconditioner of the drum. Similarly, plaintiff’s claim that
defendant was negligent because it used a defective drum, inadequately inspected the drum,
and/or delegated its responsibilities to the reconditioner must fail on the same basis. The
regulations demonstrate that defendant was entitled to delegate responsibility for testing and
4
Section 173.22 is entitled “Shipper’s responsibility” and states that a shipper “shall class
and describe the hazardous material in accordance with parts 172 and 173 of this subchapter, and
. . . shall determine that the packaging or container is an authorized packaging, including part
173 requirements, and that it has been manufactured, assembled, and marked in accordance
with” the relevant regulations. Section 173.24a details the requirements for packages, including
inner packaging closures, the nature and thickness of the outer packaging, securing and
cushioning the packagings, prohibitions of metallic devices, and requirements to withstand
vibration.
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certifying the drum to the reconditioner, and the court may not impose liability contrary to those
regulations. Count Two is therefore preempted as well.
Plaintiff endeavors to identify other regulations that defendant potentially violated that
may serve as the basis for liability. He first argues that defendant violated section 173.30, which
states that “[a] person who is subject to the loading and unloading regulations in this subchapter
must load or unload hazardous materials into or from a transport vehicle or vessel in
conformance with the applicable loading and unloading requirements of parts 174, 175, 176, and
177 of this subchapter.” This general section creates no particular responsibilities for shippers,
but rather simply references the more specific subsections that do impose duties, including all of
Part 177, which governs “Carriage by Public Highway.” Because this section prescribes no
specific duties, it may not serve as the basis of liability against defendant.5
Plaintiff does identify a more specific subsection in Part 177 that he alleges defendant
violated: § 177.834. That section states that “any package containing any hazardous material,
not permanently attached to a motor vehicle, must be secured against shifting, including relative
motion between packages, within the vehicle on which it is being transported, under conditions
normally incident to transportation. Packages having valves or other fittings must be loaded in a
manner to minimize the likelihood of damage during transportation.” That subsection does not
5
Further, it is not clear that Section 173.30 applies to defendant. Plaintiff argues that these
duties should be ascribed to defendant because defendant loaded the drum, but the regulation
clearly states that it applies to a “person who is subject to the loading and unloading regulations
in this subchapter.” Plaintiff, as the carrier, is unquestionably subject to the loading and
unloading regulations. To extend these duties to any individual who loads shipments could
extend liability beyond the intended reach of the regulation. Because the court finds that there is
no corresponding violation of § 177.834, it need not address whether § 173.30 applies to
defendant.
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specifically identify the party responsible for compliance, but Part 177 contains a subpart that
addresses compliance with Part 177 in general.
The first subsection of Part 177 details the purpose and scope of the Part and states that
“[t]his part prescribes requirements, in addition to those contained in parts 171, 172, 173, 178
and 180 of this subchapter, that are applicable to the acceptance and transportation of hazardous
materials by private, common, or contract carriers by motor vehicle.” § 177.800(a). That
subsection is clear that primary responsibility for these transportation-related regulations is on
the carrier. Subsection 177.800(b) states that “[u]nless this subchapter specifically provides that
another person shall perform a particular duty, each carrier, including a connecting carrier, shall
perform the duties specified and comply with all applicable requirements in this part . . . .”
Therefore, under § 177.800(b), the carrier is responsible for compliance with §177.834
and §177.30. Although it is undisputed that Valspar personnel loaded the drums, the regulations
dictate that plaintiff (or his employer) is responsible for compliance with the loading
requirements of the HMR and HMTA. Section 173.30 does not mandate that a shipper perform
loading or unloading duties, and therefore does not relieve the carrier of the responsibility to
perform those duties. Further, plaintiff inspected the loaded drums and accepted the shipment.
Nor is the defendant liable under the language of §177.834 itself, as plaintiff alleges.
The first requirement, which mandates that a party secure the packages against shifting, is not
specifically imposed on shippers or carriers. In the instant case, there is no dispute that plaintiff
applied the lock loads to the drums, thereby securing the packages against shifting during
transportation. There is no allegation that defendant was involved in securing the drums.
Plaintiff’s argument that the requirement that a party “secure” the packages against shifting also
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includes loading the packages in the correct manner is too broad an interpretation of the
language of the regulation, and the court rejects this argument. There is no allegation that
defendant failed to properly secure the packages in the shipment as required by the regulation.
Therefore, plaintiff cannot assert that defendant is liable under the first part of § 177.834.
The second responsibility articulated in § 177.834 is related to packages with valves or
fittings. Plaintiff argues that the drums had valves or fittings, and that defendant is liable for
violating the regulation because it failed to load the packages in a manner that minimized the
likelihood of damage. However, plaintiff again overreaches with the interpretation of the
regulation. The specific mention of the valves and fittings indicates that the regulation requires
special care to be taken related to those fittings. Yet, plaintiff’s amended complaint does not
allege that defendant took any action related to valves or fittings, and there is no allegation that
the leak in the drum in question was in any way related to valves or fittings on the container (if
there were any). Indeed, until the latest round of briefs, plaintiff’s claim has consistently been
that the base of the drum was defective. Plaintiff therefore cannot credibly assert that defendant
is liable under the second part of § 177.834.
In sum, plaintiff has not identified any provision of the HMTA or HMR that defendant
has violated. Because the HMTA and HMR preempt state law claims related to the transport of
hazardous substances, and plaintiff cannot establish a violation of those regulations, plaintiff’s
complaint presents no viable claim to this court. The court therefore grants defendant’s motion
for summary judgment on all counts.
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CONCLUSION
For the reasons described above, the court grants defendant’s motion for summary
judgment on all counts.
ENTER:
July 24, 2014
__________________________________________
Robert W. Gettleman
United States District Judge
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