Mwesigwa Ex Rel. Mwesigwa v. Dap, Inc.
2011 U.S. App. LEXIS 8668
| 8th Cir. | 2011Background
- DAP Weldwood Gel Formula Contact Cement is a hazardous household adhesive with warnings on can and lid warning of flammability and precautions against ignition.
- Mwesigwa decedent spilled cement; vapors ignited causing fatal flash fire.
- Plaintiffs alleged failure-to-warn, negligence, and related claims under FHSA; district court granted summary judgment for DAP.
- FHSA requires labeling of principal hazards and precautionary measures; state-law claims potentially preempted if premised on non-FHSA warnings.
- Court reviews FHSA compliance de novo and affirms summary judgment for DAP on failure-to-warn claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the label comply with FHSA principal-hazard requirements? | Mwesigwas contend label misses a distinct principal hazard (spill fire). | Label already covers flammability and flash fire as principal hazards. | No; spill-fire is not a separate principal hazard required by FHSA. |
| Is a spill-avoidance precautionary measure required by FHSA? | Label should warn against spreading after a spill to prevent ignition. | FHSA precautions target principal hazards; no extra spread-warn needed. | FHSA does not require a spread-after-spill warning; precautions focus on avoiding ignition. |
| Does FHSA preempt state-law failure-to-warn claims? | State-law theory should supplement FHSA requirements. | FHSA preempts claims that impose non-FHSA labeling requirements. | Preemption applies; claims based on demands beyond FHSA labeling are preempted. |
Key Cases Cited
- Mattis v. Carlon Elec. Prods., 295 F.3d 856 (8th Cir. 2002) ( clarifies FHSA compliance standard for labeling)
- Milanese v. Rust-Oleum Corp., 244 F.3d 104 (2d Cir. 2001) (discusses primary vs. secondary hazards and required warnings)
- Torres-Rios v. LPS Labs., Inc., 152 F.3d 11 (1st Cir. 1998) (limits on magnified risks of flash fire not always required by FHSA labeling)
- Nat'l Bank of Commerce of El Dorado v. Kimberly-Clark Corp., 38 F.3d 988 (8th Cir. 1994) (establishes FHSA failure-to-warn framework and preemption considerations)