Lead Opinion
OPINION OF THE COURT
(July 31,2012)
Appellant Edna Santiago seeks reversal and remand of the Superior Court’s November 3, 2007 Order granting
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of two incidents that occurred on October 22 and 23, 2001, allegedly resulting in injuries to Santiago. Santiago alleges that on October 22, 2001, she slipped and fell in the bathroom of her Frederiksted, St. Croix apartment. The apartment is a part of a housing community operated and managed by Virgin Islands Housing Authority (VIHA). Santiago claims that she fell because sewage water drained into her apartment. Santiago contacted the management of the housing community the next day to report the incident. On October 23, 2001, VIHA sent Norman Stanley, a maintenance worker, to Santiago’s residence to assist with the cleanup of the sewage and to unclog the sewer line. In order to unclog the sewer line, Stanley used a product that was later identified as “Red Hot Sewer Solvent.” He poured some of the sewer solvent down the main sewer line, which was located outside of Santiago’s back door. Upon contact with the water in the sewer pipes, the sewer solvent foamed and emitted a foul odor. Santiago stated that she closed the door, but the fumes had already permeated the apartment and had begun to irritate and burn Santiago’s eyes, throat, nose, and face. As a result, Santiago alleges that she has suffered physical injuries, medical expenses, and pain and suffering.
On August 26, 2002, Santiago filed suit in the Superior Court alleging claims against VIHA and Taylor Labs, Inc. for the injuries she allegedly sustained on October 22 and 23, 2001. On January 30, 2003, VIHA responded to a request for interrogatories from Taylor Labs, which revealed that ABC Compounding, not Taylor Labs, was the manufacturer of the sewer solvent, and that ABC Janitors was the seller and distributor of the sewer solvent. This response was also served on Santiago. Based on this information, Santiago moved to amend her original complaint and substitute ABC Compounding for Taylor Labs. Santiago’s motion to amend her complaint was granted on April 22, 2003, and ABC
On November 29, 2004, ABC Janitors moved to dismiss the claims against it, asserting that the two-year statute of limitations applicable to Santiago’s claims, as imposed by title 5, section 31(5)(A) of the Virgin Islands Code, had expired before it was served with the third amended complaint. Santiago filed an opposition to the motion, arguing that the discovery rule applied and that the statute of limitations accrued in January 2003, when Santiago first learned that ABC Janitors may have contributed to the causation of her injuries. Alternatively, Santiago contended that the complaint against ABC Janitors related back to the filing date of the complaint against BC Supplies such that the applicable two year statute of limitation did not bar Santiago’s claims against ABC Janitors. VIHA moved for partial summary judgment against Santiago on February 4, 2005, seeking to preclude any claims or judgments against VIHA in excess of the statutory mandatory limit of fifty thousand dollars ($50,000.00) pursuant to 29 V.I.C. § 87. BC Supplies also moved for summary judgment, claiming that it had never sold the sewer solvent. Santiago did not oppose BC Supplies’ motion, and also moved to dismiss BC Supplies as a defendant. On September 7, 2005, ABC Compounding filed a motion for summary judgment arguing the claims against it were preempted by the Federal Hazardous Substances Act (FHSA). On September 22, 2005, ABC Janitors filed a motion for relief from the Superior Court’s September 23, 2004 Order granting Santiago’s motion for leave to file the second amended complaint. The relief requested by
The Superior Court held oral arguments on all pending motions on October 17, 2007. On November 3, 2007, the Superior Court entered a Memorandum Opinion and Order: 1) granting in part VIHA’s motion for partial summary judgment; 2) finding that Santiago’s claims against ABC Compounding were preempted by the FHSA, and granting ABC Compounding’s motion for summary judgment; and 3) granting in part ABC Janitors’ motion to dismiss as it related to the discovery rule, but allowing Santiago the opportunity to conduct discovery to determine whether Santiago’s attempts to join ABC Janitors related back to the date of her filing against BC Supplies under Federal Rule of Civil Procedure 15(c)(1)(C). Santiago filed a motion for Rule 54(b) certification of the Superior Court’s November 3, 2007 Memorandum Opinion and Order, and on March 13, 2008, ABC Janitors renewed its motion to dismiss. On June 11, 2008, the Superior Court granted ABC Janitors’ motion to dismiss and denied Santiago’s motion for Rule 54(b) certification.
Santiago settled her remaining claims against VIHA, and stipulated to its dismissal from the action on October 2, 2009. The Superior Court granted the dismissal of VIHA on January 4, 2010. Santiago filed her timely notice of appeal on January 21, 2010.
II. DISCUSSION
A. Jurisdiction and Standard of Review
Title 4, section 32(a) of the Virgin Islands Code gives this Court “jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court, or as otherwise provided by law.” 4 V.I.C. § 32(a). This matter involved multiple defendants and several orders of dismissal and summary judgment. However, the final order disposing of all claims occurred when the Superior Court granted the stipulated dismissal of Santiago’s claims against VIHA on January 4, 2010. Accordingly, this Court possesses jurisdiction over Santiago’s appeal. See V.I.S.Ct.R. 5(a)(1).
Our standard of review in examining the Superior Court’s application of law is plenary, while findings of fact are reviewed only for clear error. St. Thomas-St. John Bd. of Elections v. Daniel,
B. Santiago’s Claims against ABC Compounding
Santiago contends that the Superior Court erred in holding that her common law negligence claims were preempted by the FHSA. Specifically, Santiago argues that the Superior Court erred in determining that the sewer solvent was a “misbranded hazardous substance” and subject to the FHSA. Alternatively, Santiago argues that the Superior Court should not have granted ABC Compounding’s motion for summary judgment because in her opposition brief to ABC Compounding’s motion to dismiss, Santiago asserted a claim that the sewer solvent’s label did not comply with the requirements of the FHSA.
1. The sewer solvent was a “hazardous substance" subject to the labeling requirements of the FHSA
The FHSA defines “hazardous substances” as:
Any substance or mixture of substances which (i) is toxic, (ii) is corrosive, (iii) is an irritant, (iv) is a strong sensitizer, (v) is flammable or combustible, or (vi) generates pressure through decomposition, heat, or other means, if such substances or mixture of substances may*265 cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children.
15 U.S.C. § 1261(f)(1)(A). The FHSA requires all hazardous substances “intended, or packaged in a form suitable, for use in the household or by children” to bear a label containing specific information and warnings. See 15 U.S.C. § 1261 (p)(l); 15 U.S.C. § 1262(b). The phrase “hazardous substances intended, or packaged in a form suitable, for use in the household” is more clearly defined by 16 C.F.R. § 1500.3(c)(10)(i), which states:
Hazardous substances intended, or packaged in a form suitable, for use in the household means any hazardous substance, whether or not packaged, that under any customary or reasonably foreseeable condition of purchase, storage, or use may be brought into or around a house, apartment, or other place where people dwell, or in or around any related building or shed including, but not limited to, a garage, carport, barn, or storage shed. The term includes articles, such as polishes or cleaners, designed primarily for professional use but which are available in retail stores, such as hobby shops, for nonprofessional use. Also included are items, such as antifreeze and radiator cleaners, that although principally for car use may be stored in or around dwelling places. The term does not include industrial supplies that might be taken into a home by a serviceman. An article labeled as, and marketed solely for, industrial use does not become subject to this act because of the possibility that an industrial worker may take a supply for his own use. Size of unit or container is not the only index of whether the article is suitable for use in or around the household; the test shall be whether under any reasonably foreseeable condition of purchase, storage, or use the article may be found in or around a dwelling.
(emphasis added). Hazardous substances that do not bear a label in accordance with the requirements of 15 U.S.C. § 1261(p)(l) shall be deemed to be a “misbranded hazardous substance,” and the introduction of such items into interstate commerce is prohibited. See 15 U.S.C. § 1262(b).
In an analogous case, Canty v. Ever-Last Supply Co., 296 NJ. Super. 68,
the evidence reveals that Ever-Last, one of the stores where Lacquer Seal is sold, is open to the general public as well as tradespeople. Any Ever-Last customer, whether a professional or not, may purchase Lacquer Seal for household use. Where, as here, there is no evidence to show that the manufacturer, wholesaler, or retailer of a hazardous substance sought to limit sales of the product to industrial or professional users, it is reasonably foreseeable that household consumers will have access to the product. The lack of restrictions on who may purchase Lacquer Seal, along with its obvious utility to an average household consumer as a wood floor sealant make it a product “intended, or packaged in a form suitable, for use in the household” within the meaning of the regulations. Accordingly, Lacquer Seal is a product governed by FHSA.
Id. at 1370-71. Canty provides a clear analysis for determining the applicability of the FHSA, and we will apply it to the present case.
The Superior Court held that the sewer solvent is a “substance which, ‘under any customary or reasonably foreseeable condition of purchase, storage, or use may be brought into or around a house, apartment, or other place where people dwell,’ under 16 C.F.R. § 1500.3(c)(10), as demonstrated by its use in this case.” Although the Superior Court’s reasoning was vague and unclear, its ultimate determination that the sewer solvent is a hazardous substance subject to the labeling requirements of the FHSA was correct under the analysis articulated in Canty. At the October 17, 2007 Oral Arguments, ABC Compounding asserted that the sewer solvent is available to consumers for purchase over the internet and at stores in Puerto Rico and stateside that deal in chemicals for plumbing and plumbing devices. Furthermore, Santiago presented no evidence to show that ABC Compounding sought to limit sales of the sewer solvent to industrial or professional users.
2. Santiago’s common law claims are not preempted by the FHSA
The FHSA was enacted in 1960 to “ ‘provide nationally uniform requirements for adequate cautionary labeling of packages of hazardous substances which are sold in interstate commerce and are intended or suitable for household use.’ ” Milanese v. Rust-Oleum Corp.,
The plain language of the FHSA clearly preempts any state cause of action that seeks to impose different labeling requirement than those delineated in the Act. See Milanese,
The Supreme Court in Bates also held that common law tort claims that do not involve labeling or packaging requirements are not preempted by the FIFRA. Id. at 444,
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. (emphasis added). With these principles in mind, we turn to Santiago’s claims against ABC Compounding.
In her complaint, Santiago asserts claims against ABC Compounding for: 1) negligently failing to adequately train and instruct the users of Red Hot Sewer Solvent on its proper application and use; 2) negligently failing to adequately mark and identify on its container the
Santiago’s remaining claims are that ABC Compounding 1) negligently failed to adequately train and instruct the users of Red Hot Sewer Solvent on its proper application and use, 2) negligently failed to adequately mark and identify on its container the proper use of Red Hot Sewer Solvent, and 3) negligently failed to adequately mark and identify on its container the measures that should be taken to protect the public and occupants of residences where it is used against its dangers, as well as her broad assertion that the sewer solvent fails to contain proper warnings and conditions for its use.
C. Santiago’s Claims against ABC Janitors
Santiago argues that the Superior Court erred in granting ABC Janitors’ motion to dismiss based on its determination that the applicable two-year statute of limitations had expired.
1. The discovery rule did not toll the two-year statute of limitations on Santiago’s claims
In order to determine whether Santiago’s claims against ABC Janitors are barred by the two-year statute of limitations for personal
The discovery rule is not applicable to the two-year statute of limitations on Santiago’s claims against ABC Janitors. In her complaint, Santiago asserts that she witnessed Stanley open a bucket of Red Hot Sewer Solvent and pour its contents into a sewer pipe outside her home. Santiago further claims that upon inhaling the fumes from the sewer solvent her eyes, nose and throat began to burn; she started vomiting; and she sustained physical injuries. Based on her own assertions, Santiago was both aware of her alleged injures and their cause on the date they occurred, October 23, 2001. Furthermore, VIHA served interrogatory responses on Santiago in January 2003, indicating that ABC Janitors was the supplier of the sewer solvent. Despite this information, Santiago took no action to add ABC Janitors as a party until August 2004, when Santiago first attempted to amend her complaint to add ABC Janitors as a defendant, and Santiago’s amended complaint was not served on ABC Janitors until September 2004. Therefore, Santiago’s claims against ABC Janitors began to accrue on October 23, 2001, and because Santiago’s claims against ABC Janitors were not filed until August 2004 — more than two years after her claims accrued and the limitation period started to run — Santiago’s claims are barred by the two-year statute of limitations. See 5 V.I.C. § 31(5)(A).
the various harms and injuries arising from environmental contaminants are often slow to arise given the latent nature of many such contaminants. Understandably, this delay creates difficulties in determining the actor responsible for any harm resulting from those contaminants. In addition, limitations in scientific capabilities often hinders a determination of who may have caused specific contamination.
Id. at 986-87. Moreover, in reaching its decision to adopt the environmental discovery rule, the District Court relied on Zeleznik v. United States,
[T]he statute of limitations begins to run on the first date that the injured party possesses sufficient critical facts to put him on notice that a wrong has been committed and that he need investigate to determine whether he is entitled to redress. ... Once the injured party is put on*275 notice, the burden is upon him to determine within the limitations period whether any party may be liable to him.
As noted above, Santiago was immediately aware of both her injuries and their cause on October 23, 2001, the date they occurred. The injuries she sustained were also in no way related to any type of environmental contamination. The environmental discovery rule is therefore not applicable to Santiago’s claims.
2. The complaint against ABC Janitors did not relate back to the complaint filed against BC Supplies
Superior Court Rule 8 governs amendments to pleadings in Superior Court proceedings. Pursuant to Rule 8,
The court may amend any process or pleading for any omission or defect therein, or for any variance between the complaint and the evidence adduced at the trial. If a party is surprised as a result of such amendment, the court shall adjourn the hearing to some future day, upon such terms as it shall think proper.
SUPER. Ct. R. 8. Superior Court Rule 8, however, does not identify the legal standard that governs the relation back of amendments to pleadings.
An amendment of a pleading relates back to the date of the original pleading when:
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if [the claim against the newly named defendants arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading] and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.
Fed. R. Civ. P. 15(c)(1). Thus, Rule 15(c)(1)(C) delineates
three distinct prerequisites for an amendment to relate back to the original complaint: (1) the claims in the amended complaint must arise out of the same occurrences set forth in the original complaint, (2) the party to be brought in by amendment must have received notice of the action within 120 days of its institution, and (3) the party to be brought in by amendment must have known, or should have known, that the action would have been brought against the party but for a mistake concerning its identity. Once these requirements are satisfied, Rule 15(c) instructs that the “amendment... relates back to the date of the original pleading.”
Arthur v. Maersk, Inc.,
ABC Janitors does not dispute that the first condition of Rule 15(c)(1)(C) has been met — that the claims against it arose out of the same conduct and occurrence set forth in the original pleading. Instead, the controversy in this case involves whether the second and third
For purposes of the relation back doctrine, notice can be “actual, constructive, or imputed.” Singletary,
Santiago contends that the Superior Court should have assumed, first, that ABC Janitors and VIHA had a close business relationship, and second, that VIHA notified ABC Janitors of the institution of this action. This contention, however, has no factual or evidentiary support. Furthermore, even if this Court accepted these two assumptions as true, the mere fact that VIHA was a party to a lawsuit involving its use of Red Hot Sewer Solvent is not sufficient to establish that ABC Janitors knew or should have known that but for a mistake made by Santiago, the action would have been brought against it in the first place.
III. CONCLUSION
The Superior Court correctly determined that the Red Hot Sewer Solvent was a “hazardous substance” subject to the labeling requirements of the FHSA, but erred in granting ABC Compounding’s motion for summary judgment. The Superior Court correctly determined that the running of the statute of limitations against Santiago’s claims against ABC Janitors was not tolled by the discovery rule, nor did the commencement of those claims for limitation purposes relate back to the filing date of the complaint against BC Supplies. Accordingly, the Superior Court did not err in holding that Santiago’s claims against ABC Janitors were barred by the two-year statute of limitations. Therefore, we reverse and remand the Superior Court’s order granting ABC Compounding’s motion for summary judgment, and affirm its order granting ABC Janitors’ motion to dismiss.
Notes
Although Santiago may have asserted that the sewer solvent’s label did not comply with the requirements of the FHSA in her opposition brief to ABC Compounding’s motion to dismiss, Santiago’s complaint failed to state any such claim. Santiago, therefore, did not adequately and properly state a claim under the FHSA according to the general rules of pleading set forth in Rule 8 of the Federal Rules of Civil Procedure. See Super. Ct. R. 7 (“The practice and procedure in the Superior Court shall be governed by the Rules of the Superior Court and, to the extent not inconsistent therewith, by ... the Federal Rules of Civil Procedure ....”).
It appears that the Superior Court misused the term “misbranded hazardous substance.” A misbranded hazardous substance is a hazardous substance — as defined by the FHSA — which fails to meet the cautionary labeling requirements under 15 U.S.C. § 1261(p) and 15 U.S.C. § 1262(b). The Superior Court’s Memorandum Opinion and Order focused on whether the sewer solvent was subject to the cautionary labeling requirements of the FHSA as opposed to whether the sewer solvent’s label actually met those requirements. Accordingly, we will construe the Superior Court’s use of the words “misbranded hazardous substance” to mean “hazardous substance subject to the labeling requirements of the FHSA.”
Canty was the operator/owner of a hardwood floor refinishing business, and the lacquer sealer product used by Canty is a product for use with hardwood floors as a protective sealant.
7 U.S.C. §§ 136etseq.
Compare 7 U.S.C. § 136v(a) (“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 [Act].”), and 7 U.S.C. § 136v(b) (“State[s] shall not impose or continue in effect any requirements for labeling or packaging in addition to or
Each of these claims can broadly be classified as failure to warn claims.
Santiago claims that ABC Compounding 1) negligently failed to adequately train and instruct the users of Red Hot Sewer Solvent on its proper application and use, 2) negligently failed to adequately mark and identify on its container the proper use of Red Hot Sewer Solvent, and 3) negligently failed to adequately mark and identify on its container the measures that should be taken to protect the public and occupants of residences where it is used
The Motion to Dismiss and Motion for 60(b) Relief by ABC Janitors both seek the same relief: dismissal of Santiago’s action against ABC Janitors on statute of limitations grounds.
Although this Court may find the District Court’s holding in In re Tutu Wells persuasive, we are not required to follow the decisions of federal tribunals interpreting local Virgin Islands law. As such, “decisions of our predecessor court, the Appellate Division of the District Court of the Virgin Islands, are not binding on us.” Jucli’s of St. Croix Car Rental v. Weston,
Superior Court Rule 7 provides that “[t]he practice and procedure in the Superior Court shall be governed by the Rules of the Superior Court and, to the extent not inconsistent therewith, by... the Federal Rules of Civil Procedure.” Super. Ct. R. 7. This Court has held, however, that, when a Superior Court rule governs the same subject matter as a federal rule, the federal rule cannot apply to Superior Court proceedings pursuant to Superior Court Rule 7 when application of the federal rule would render the Superior Court rule “wholly superfluous.” See Corraspe v. People,
In its brief, ABC Janitors also argues that it is entitled to summary judgment pursuant to the FHSA. Because Santiago’s claims against ABC Janitors are barred by the two-year statute of limitations, this Court does not need to address this argument.
Although the Bates court allows for a private cause of action for plaintiffs and allows states to impose sanctions for failure to comply with the FIFRA, this is not determinative of whether these rights exist under the FHSA, because they are two completely separate and distinct statutes. The U.S. Supreme Court mandated that whether a private right of action exists under
Concurrence Opinion
concurring. Appellant alleges several tort claims against Appellees for injuries she sustained because of the use of the chemical, Red Hot Solvent, in proximity to her home and further alleges a claim based upon Appellees’ use, labeling and distribution of the same chemical. The trial court concluded that some of Appellant’s claims were preempted by federal law. I conclude that other claims were not preempted because Appellant asserted several tort claims based on state law, such as negligence and product liability. I would reverse in part the trial court’s order and remand the case for further proceedings consistent with this concurring Opinion.
One Appellee sought dismissal of Appellant’s claim because it was time-barred under the statute of limitations for tort suits. I would affirm the trial court’s dismissal of Appellant’s claim based upon the applicable two-year statute of limitations.
I. FACTS AND PROCEDURAL HISTORY
Edna Iris Santiago (“Santiago”) is a resident of Williams Delight, a housing community on St. Croix that is owned and operated by the Virgin Islands Housing Authority (“VIHA”). (J.A. Vol. I at 113, 279.) Beginning in September 2001, Santiago experienced periodic problems with the community’s sewage system which caused waste to permeate into her residence. {Id. at 114-15, 285.) Therefore, Santiago contacted VIHA’s management, which dispatched its employees to Williams Delight to rectify the sewage problem. {Id. at 114.) However, unbeknownst to Santiago, in the early morning hours of October 22, 2001, sewage again seeped into her residence. {Id.) The same morning Santiago awoke and proceeded to her bathroom in the dark. {Id. at 115.) Unaware the seepage had entered her bathroom, Santiago slipped on the seepage of waste and fell. {Id. at 114-15.) She immediately began to scream. {Id.) Santiago’s male friend heard her screaming and rushed to her aid. {Id.) As a result of the fall, Santiago injured her knee, back, hip and head. {Id. at 126.)
Thereafter, Santiago contacted VIHA and reported the incident to Mr. Gerard, the emergency manager on duty. {Id. at 164, 66.) Later that day Santiago also reported the incident to Pamela Samuel, one of the housing managers. {Id. at 115-16, 164.) Consequently, on October 23, 2001, Norman Stanley (“Stanley”) was dispatched to Santiago’s residence to investigate the sewage problem. {Id. at 116.) Stanley arrived at Santiago’s residence with an-assistant. {Id. at 118.) Neither Stanley nor his
After greeting Santiago, but without prior explanation or warning to Santiago, Stanley approached the main sewer pipe, stood over it, and poured two scoops of a granular substance from a bucket into the main sewer pipe. (Id at 119.) As Stanley poured the second scoop into the sewer, Santiago read the words “Red Hot Solvent” on the bucket’s label. (Id. at 144.) In her deposition, Santiago described what occurred after Stanley started pouring the liquid into the main sewer pipe:
So I look and I smell this bad odor. So I tell him, you know, this thing smell bad. To my knowledge, he never did that. When he continue pouring, I tell him this smell bad.
He told me to close the door, but by the time I start to feel this thing in my body starting to itch, burn, I couldn’t breathe. I close my door. He tell me close my door. I run quickly close my windows. I was gasping for breath. And as I was coming out, I started to throw up, I started to vomit.
(J.A. Vol. I at 116-17.) Santiago hastily exited her residence through the front door where her son came to her aid and comforted her. (Id. at 123.) Santiago’s son hurriedly transported her to a doctor’s office for medical treatment. (Id. at 117, 183.)
Upon Santiago’s arrival at the office of Dr. Wilbert Williams (id. at 125), Dr. Williams performed a medical examination, which revealed that Santiago had sustained chemical bums inside her throat. (Id. at 208.) Dr. Williams also wrapped Santiago’s ankle and prescribed medication for her. (Id. at 125.) Essentially, Santiago sustained chemical burns and other physical discomfort as a result of her exposure to the chemical agent used by Stanley earlier that day. She continues to experience pain, periodic rashes, headaches, blurred vision, dry mouth, difficulty sleeping and other ailments, all of which Santiago attributes to her exposure to the
On August 22,2002, Santiago filed a three-count Complaint against the VIHA and Taylor Labs, Inc. in the Superior Court of the Virgin Islands. (Id. at 31; J.A. Vol. II at 659.) On June 10, 2003, VIHA filed a Motion for Leave to Serve Third-Party Complaint against BC Engineering Supplies, Inc. (“BC Supplies”). (J.A. Vol. II at 578-79.) On July 10, 2003, Santiago filed a four-count Second Amended Complaint naming the VIHA, A.B.C. Compounding Company, Inc. (“A.B.C. Compounding”) and BC Supplies as defendants. (J.A. Vol. II at 573.) On August 18, 2003, the trial court granted both the VIHA’s Motion for Leave to File a Third-Party Complaint against BC Supplies and Santiago’s Motion to Amend her Complaint to add BC Supplies as a defendant.
VIHA invoices state that ABC Janitors of St. Croix (“ABC Janitors”) is the vendor of the Red Hot Solvent. (J.A. Vol. II at 566.) The VIHA’s Responses to Taylor Labs Interrogatories reveals, and Santiago admits, that on January 31, 2003 VIHA disclosed that ABC Janitors was the “distributor or seller” of Red Hot Solvent. (Id. at 535, 670; see also Br. of Appellant at 25.) On August 5, 2004, the VIHA filed a Motion for Leave to Serve Third-Party Complaint against ABC Janitors. (J.A. Vol. II at 556.) On August 12, 2004, the trial court granted VIHA’s Motion. (Id. at 555.) On August 19, 2004, VIHA filed its Third-Party Complaint against ABC Janitors. (J.A. Vol. I at 23.)
On August 23, 2004, after VIHA filed its Third-Party Complaint against ABC Janitors, Santiago filed a four-count Third Amended Complaint against defendants VIHA, A.B.C. Compounding, BC Supplies and ABC Janitors. (J.A. Vol. II at 543.) Count I of Santiago’s Third Amended Complaint alleges negligence; Count II alleges negligence and defective product, defective design and defective manufacturing; Count III alleges failure to warn and failure to give proper instructions in the use of Red Hot Solvent; and Count IV alleges reckless disregard of Santiago’s rights and interests. (Id. at 547-48.) In its Answer to Santiago’s Third-Party Complaint, ABC Janitors asserts, inter alia, that Santiago’s “claims are barred by the applicable statute of limitations.” (Id. at 539.)
On December 1, 2004, ABC Janitors filed a Motion to Dismiss Santiago’s Third-Amended Complaint, asserting that the two-year statute
On September 7, 2005, A.B.C. Compounding moved for summary judgment. (J.A. Vol. II at 460.) On September 12, 2005, BC Supplies moved also for summary judgment. (J.A. Vol. I at 19.) On December 19, 2005, Santiago filed a Motion to Dismiss BC Supplies as a defendant, on the basis that she had erroneously identified BC Supplies as a distributor of Red Hot Solvent. (J.A. Vol. I at 426.) On December 23, 2005, the trial court granted Santiago’s Motion and dismissed BC Supplies from the case. (Id. at 424.) On October 4, 2007, ABC Janitors filed a Motion to Join A.B.C. Compounding’s Motion for Summary Judgment. (Id. at 13.)
On October 17, 2007, a hearing was held on all outstanding motions. (J.A. Vol. I at 13, 80-109.) On November 3, 2007, the trial court issued a Memorandum Opinion and Order on pending motions that the trial court considered at the October 17, 2007 hearing. (J.A. at 70-79.) First, the trial court granted in part and denied in part VIHA’s Motion for Partial Summary Judgment on the issue of whether Santiago’s recovery is limited to fifty thousand dollars pursuant to title 29, section 87 of the Virgin Islands Code. The trial court granted the Motion for Partial Summary Judgment with respect to Santiago’s slip and fall claim, but denied the Motion with respect to Santiago’s claim for injuries resulting from inhaling the Red Hot Solvent fumes. Next, the trial court denied without prejudice ABC Janitors’ Motion to Dismiss and Motion for Rule 60(b) Relief. The trial court noted that both Motions requested the same relief which was dismissal of Santiago’s claims against ABC Janitors based on the expiration of the statute of limitations. The trial court concluded that the discovery rule was inapplicable to the underlying facts; therefore, the statute of limitations began to run on October 23, 2001, the date of Santiago’s injury. Consequently, the statute of limitations expired two years thereafter on October 23, 2003, which was approximately ten months before Santiago filed her Third Amended Complaint against the defendants, including a claim against ABC Janitors for the first time. (J.A. at 75.) A.B.C. Compounding, Inc. filed a Motion for Summary Judgment which the trial court granted on the basis that Santiago’s common law
On January 18, 2008, ABC Janitors filed its Opposition to Plaintiff’s Motion for Rule 54(b) Certification. (J.A. Yol. I at 62-68.) On March 13, 2008, ABC Janitors filed a Renewed Motion and Memorandum of Law in Support of Dismissal on Statute of Limitations Grounds. (Id. at 51-59.) The March 5, 2008 Affidavit of Judith Hinkel (“Hinkel”), ABC Janitors’ Corporate Secretary and Treasurer, was filed in support of ABC Janitors’ Reply to the Opposition to its Renewed Motion to Dismiss. Hinkel’s Affidavit discloses three pertinent facts. First, it informs that the first notice ABC Janitors received of Santiago’s lawsuit occurred on August 26, 2004, when ABC janitors was served with the Third Amended Complaint. (J.A. at 49.) Second, the Hinkel Affidavit informs that ABC Janitors is not connected with BC Supplies. (Id.) Third, the Hinkel Affidavit further informs that ABC Janitors is not connected with nor a part of BC Supplies for the following reasons: the two entities do not share any common officers, any common directors nor any common employees; the two entities do not share any common business space, any common addresses nor any common telephone numbers; and the two entities are separate and distinct entities. (Id. at 49-50.) On April 1, 2008, Santiago filed an opposition to ABC Janitors’ Renewed Motion to Dismiss. Importantly, the record before us fails to disclose any affidavit, answers to interrogatories, depositions or sworn statements contradicting Hinkel’s affidavit.
On June 11, 2008, the trial court entered an order, pursuant to Federal Rule of Civil Procedure 54(b), denying Santiago’s Motion for Certification filed against defendant A.B.C. Compounding, Inc. (Id. at 36-37.) The same day the trial court entered an Order granting ABC Janitors’ Renewed Motion to Dismiss and denying Santiago’s Motion for Sanctions as moot. (Id. at 40.) Importantly, in this Order the trial court noted the following:
There are no allegations in the Third Party Complaint that would support a finding of relation back. There is no evidence in the record before this [c]ourt that ABC Janitors received notice of pendency of this action within the period of time required by Federal Rule of Civil Procedure 15(c)(1)(C). Thus, dismissal is appropriate.
On October 2, 2009, Santiago and VIHA entered into a joint settlement agreement and stipulation to dismiss with prejudice all claims between them. The Joint Stipulation was filed with the trial court on December 23, 2009. {Id. at 8.) On January 12, 2010, the trial court entered an Order approving the Joint Stipulation of Dismissal With Prejudice between Santiago and the VIHA. {Id. at 5.) On January 21,2010, Santiago filed her timely appeal from the trial court’s order granting summary judgment in favor of A.B.C. Compounding and the trial court’s order dismissing Santiago’s claim against ABC Janitors. {Id. at 7.)
11. JURISDICTION AND STANDARD OF REVIEW
This Court has jurisdiction “over all appeals arising from final judgments, final decrees or final orders of the Superior Court[.]” 4 V.I.C. § 32(a). On January 12, 2010, the Superior Court issued an Order dismissing this case with prejudice, which is a final order within the meaning of title 4, section 32(a) of the Virgin Islands Code that confers jurisdiction upon this Court to hear the appeal. See V.I. Gov’t Hosps. & Health Facilities Corp. v. Gov’t of the V.I.,
The trial court’s grant of summary judgment is reviewed de novo. Milanese v. Rust-Oleum Corp.,
III. ISSUES
In her Notice of Appeal, Santiago asserts error with respect to several . decisions and orders of the trial court:
*285 • The denial of all pending discovery motions on October 31, 2007;
• The Order of October 31, 2007 granting A.B.C. Compounding’s Motion for Summary Judgment;
• The Order of June 10, 2008 refusing to certify that Order for appeal;
• The Order of June 10,2008 granting ABC Janitors of St. Croix Inc.’s Motion to Dismiss;
• The October 31, 2007 ruling on summary judgment motions when Defendants refused to respond to discovery requests.
(Notice of Appeal at 2; J.A. at 2.) However, in her appellate brief Santiago raises and addresses only two issues; namely:
A. Whether the Federal Hazardous Substances Act[, 15 U.S.C. § 1261 et seq.] (“FHSA”) preempts Santiago’s claims against Appellee A.B.C. Compounding; and
B. Whether the applicable statute of limitations bars Santiago’s claims against ABC Janitors.
Therefore, I will only examine the two issues that Santiago argues in her brief; the issues she raised but did not argue are deemed to have been waived. See United States v. Hoffecker,
IV. DISCUSSION
A. The Federal Hazardous Substances Act Preempts Some, But Not All of Santiago’s Claims Against A.B.C. Compounding Company Inc.
In Count II of the Third Amended Complaint, Santiago makes the following allegations:
Count II
27. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 24 above and incorporates same as if more fully set out herein.
28. The Defendant^] A.B.C. Compounding Company, was negligent in failing to adequately train or instruct the users of “Red Hot Sewer Solvent” on its proper application and use.
*286 29. The Defendant^] A.B.C. Compounding Company, was negligent in failing to adequately mark and identify on its container the proper use of the Red Hot Sewer Solvent.
30. The Defendant^] A.B.C. Compounding Company, was negligent in failing to adequately mark and identify on its container the measures that should be taken to protect the public and occupants of residences where it is used of the dangers from the use of the “Red Hot Sewer Solvent.”
31. The Red Hot Sewer Solvent was so toxic and so dangerous as to constitute a defective product.
32. The product was defectively designed or manufactured.
33. As a result of the negligent acts and omissions Plaintiff has been damaged as alleged herein.
(Third Amended Compl. 4-5; J.A. Vol. II at 546-47.) On appeal, Santiago argues that the trial court erred in granting A.B.C. Compounding’s Motion for Summary Judgment because there are genuine issues of material fact concerning the classification of Red Hot Solvent as a household product. Specifically, Santiago argues that “the trial court erred as a matter of law when it characterized the [Red Hot Solvent] as a ‘misbranded hazardous substance’ ” and thereby concluding that Santiago’s common law negligence claims were preempted by the “FHSA.” (Br. of Appellant 13.) In Count II Santiago asserts a number of tort claims against Appellee A.B.C. Compounding based on the alleged negligent training and instruction of its personnel, the alleged inadequate labeling of the product, and the alleged defective design and manufacture of the product. A.B.C. Compounding asserts that all of Santiago’s claims against A.B.C. Compounding are preempted by the FHSA. (Br. of Appellee A.B.C. Compounding 10.) Additionally, for the first time on appeal, Appellee A.B.C. Compounding claims that Santiago lacks standing to assert her claim against it because her “only claim [is] that she was an innocent bystander[,]... not a user, nor a purchaser of the product.” (Br. of Appellee A.B.C. Compounding 3.)
Because I conclude that the FHSA has not preempted all of Santiago’s claims in the Third Amended Complaint, I would reverse the trial court’s order granting summary judgment to A.B.C. Compounding.
In granting Appellee A.B.C. Compounding’s Motion for Summary Judgment, the trial court found that “a state law claim against a manufacturer is preempted if the product is a ‘misbranded hazardous substance’ under [Title 15,] § 1261(p) [of the United States Code,] to the extent that § 1261 (p) is supplemented by regulations promulgated by the Consumer Product Safety Commission under the authority of § 1262(b).” (J.A. Vol. I at 77.) A.B.C. Compounding argues that Red Hot Solvent is a hazardous substance within the meaning of the FHSA, while Santiago vociferously argues that it is not. The classification of Red Hot Solvent as a hazardous product regulated by the FHSA is relevant to my determination of whether Santiago’s claims against A.B.C. Compou'nding are preempted by the FHSA. Therefore, I will address this preliminary issue prior to considering Santiago’s other argument on appeal.
The FHSA defines a “hazardous substance” as:
Any substance or mixture of substances which (i) is toxic, (ii) is corrosive, (iii) is an irritant, (iv) is a strong sensitizer, (v) is flammable or combustible, or (vi) generates pressure through decomposition, heat, or other means, if such substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children.
15 U.S.C. § 1261(f)(1)(A) (emphasis added). It is indisputable that Red Hot Solvent is toxic, corrosive, an irritant, and is likely to cause substantial personal injury in its reasonably foreseeable use. This description is confirmed by the irrefutable facts regarding what occurred and the resulting personal injuries suffered by Santiago when Stanley poured the Red Hot Solvent into the sewer. (J.A. Vol. I at 116-17). Therefore, Red Hot Solvent is a hazardous substance that is subject to FHSA labeling requirements.
The FHSA regulates all labeling requirements of hazardous substances that come within the meaning of Title 15, section 1261(f)(1)(A). In order to conform to FHSA requirements, hazardous substances must bear a label:
(1) which states conspicuously (A) the name and place of business of the manufacturer, packer, distributor or seller; (B) the common or*288 usual name of the chemical name (if there is no common or usual name) of the hazardous substance or of each component which contributes substantially to its hazard, unless the Commission by regulation permits or requires the use of a recognized generic name; (C) the signal word “DANGER” on substances which are extremely flammable, corrosive, or highly toxic; (D) the signal word “WARNING” or “CAUTION” on all other hazardous substances; (E) an affirmative statement of the principal hazard or hazards, such as “Flammable,” “Combustible,” “Vapor Harmful,” “Causes Bums,” “Absorbed Through Skin,” or similar wording descriptive of the hazard; (F) precautionary measures describing the action to be followed or avoided, except when modified by regulation of the Commission pursuant to section 1262 of this title; (G) instruction, when necessary or appropriate, for first-aid treatment; (H) the word “poison” for any hazardous substance which is defined as “highly toxic” by subsection (h) of this section; (I) instructions for handling and storage of packages which require special care in handling or storage; and (J) the statement (i) “Keep out of the reach of children” or its practical equivalent, or, (ii) if the article is intended for use by children and is not a banned hazardous substance, adequate directions for the protection of children from the hazard, and
(2) on which any statements required under subparagraph (1) of this paragraph are located prominently and are in the English language in conspicuous and legible type in contrast by typography, layout, or color with other printed matter on the label.
15 U.S.C. § 1261(p)(l)-(2). Because Red Hot Solvent is a hazardous substance, its label must meet the requirements of Title 15, section 1261(p)(l)-(2) of the FHSA.
Hazardous substances further run the risk of being deemed “misbranded hazardous substances” under the FHSA. The FHSA defines a “misbranded hazardous substance” as:
a hazardous substance (including a toy, or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted) in*289 tended, or packaged in a form suitable, for use in the household or by children, if the packaging or labeling of such substance is in violation of an applicable regulation issued pursuant to section 1472 or 1473 of this title or if such substance, except as otherwise provided by or pursuant to section 1262 of this title, [otherwise] fails to bear a [conforming] label —
15 U.S.C. § 1261(p) (emphasis added). The regulations at 16 C.F.R. § 1500.3(c)(10) supplement the meaning of “[h]azardous substances intended, or packaged in a form suitable, for use in the household” as follows:
(i) Hazardous substances intended, or packaged in a form suitable, for use in the household means any hazardous substance, whether or not packaged, that under any customary or reasonably foreseeable condition of purchase, storage, or use may be brought into or around a house, apartment, or other place where people dwell, or in or around any related building or shed including, but not limited to, a garage, carport, bam, or storage shed. The term includes articles, such as polishes or cleaners, designed primarily for professional use but which are available in retail stores, such as hobby shops, for nonprofessional use.... Size of unit or container is not the only index of whether the article is suitable for use in or around the household; the test shall be whether under any reasonably foreseeable condition of purchase, storage, or use the article may be found in or around a dwelling.
16 C.F.R. § 1500.3(c)(10) (emphasis added). Red Hot Solvent is a chemical that is manufactured for professional use in unclogging sewers. Stanley used the Red Hot Solvent to unclog the main sewer line that was situated approximately three feet from Santiago’s kitchen door. Sewers are an integral part of one type of waste management system that removes sewage from homes and deposits it at treatment facilities. It is reasonably foreseeable that a chemical manufactured to unclog sewers would be used in or around a home, dwelling or residence. Here, the Red Hot Solvent was used near Santiago’s residence, and from the trial record, it appears that this chemical is used often by VIHAto treat sewage problems near homes, residences and dwellings. Therefore, if Red Hot Sewer Solvent bore a deficient label, as a matter of law, it would be a misbranded hazardous substance.
Because I conclude that the trial court did not err in finding that Red Hot Solvent is subject to the FHSA’s cautionary labeling requirements, I
2. There is No Private Cause of Action under the FHSA; However, Santiago May Assert Common Law Tort Claims that Allege Violations of the FHSA
The FHSA was first enacted in 1960 to impose “nationally uniform requirements for adequate cautionary labeling of packages of hazardous substances which are sold in interstate commerce and are intended or suitable for household use.” Milanese,
To reiterate, in Count II of her Third Amended Complaint Santiago alleges the following:
27. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 24 above and incorporates same as if more fully set out herein.
28. The Defendant^] A.B.C. Compounding Company, was negligent in failing to adequately train or instruct the users of “Red Hot Sewer Solvent” on its proper application and use.
29. The Defendant^] A.B.C. Compounding Company, was negligent in failing to adequately mark and identify on its container the proper use of the Red Hot Sewer Solvent.
*291 30. The Defendant^] A.B.C. Compounding Company, was negligent in failing to adequately mark and identify on its container the measures that should be taken to protect the public and occupants of residences where it is used of the dangers from the use of the “Red Hot Sewer Solvent.”
31. The Red Hot Sewer Solvent was so toxic and so dangerous as to constitute a defective product.
32. The product was defectively designed or manufactured.
33. As a result of the negligent acts and omissions Plaintiff has been damaged as alleged herein.
(Third Amended Compl. 4-5; J.A. Vol. II at 546-47.) Title 15, section 1261(n) of the United States Code defines “label” as “a display of written, printed, or graphic matter upon the immediate container of any substance or . . . directly upon the article involved . . . .” 15 U.S.C. § 1261(n). The purpose of such label is to communicate to users of the product the information mandated by the FHSA labeling regime. Although paragraph twenty-eight of the Complaint uses the words “train or instruct” and paragraphs twenty-nine and thirty use the words “mark and identify,” I conclude that those words, within the context of section 1261(n) of the FHSA, allege defective labeling claims.
Santiago alleges the existence of a genuine issue of material fact concerning several aspects of the Red Hot label. Santiago challenges the visibility of the word “danger” and whether all possible hazards of Red Hot Solvent, including the danger posed by the traveling of its fumes, were communicated on its label. The FHSA requires that “the signal word ‘DANGER’ [be written] on substances which are extremely flammable, corrosive, or highly toxic[.]” 15 U.S.C. § 1261(p)(l). It also requires that “an affirmative statement of the principal hazard or hazards, such as ‘Flammable,’ ‘Combustible,’ ‘Vapor Harmful,’ ‘Causes Burns,’ ‘Absorbed Through Skin,’ or similar wording descriptive of the hazard” be stated on the label. Id. Furthermore, the FHSA requires such warnings to be “located prominently!,] • • • in the English language in conspicuous and legible type . . . .” Id. at § 1261 (p)(2). The record on appeal contains a two-page document titled “Technical Information” that appears to have been printed from Taylor Labs’ website. (J.A. at 442.) However, the actual label from the Red Hot Solvent was not included in the record on appeal. Nonetheless, after examining the allegations, I conclude that
Next, Santiago challenges the adequacy of the precautionary measures described on the label, stating that the label lacked any warning that all doors, windows and other open cavities of dwellings should be closed prior to Red Hot Solvent’s use. The FHSA requires that the label contain “precautionary measures describing the action to be followed or avoided, except when modified by regulation of the Commission pursuant to section 1262 of this title[.]” Id. at § 1261(p)(l). Again, Santiago asserts a claim that the Red Hot Solvent label failed to comply with the FHSA. Additionally, Santiago objected to the lack of drawings depicting the safety equipment that should be worn when using Red Hot Solvent. In paragraphs twenty-eight, twenty-nine and thirty of Count II of the Third Amended Complaint, Santiago challenges the efficacy of the training, instructing, marking and identifying regarding the dangers of the Red Hot Solvent. Therefore, those claims are preempted by the FHSA to the extent that Santiago has alleged claims that exceed or otherwise differ from the FHSA requirements.
The FHSA specifically addresses state labeling requirements and other prohibited activities concerning hazardous substances. The FHSA prohibits states and their political subdivisions from regulating labeling requirements of hazardous substances in any manner that is not substantially similar to the FHSA labeling requirements. The “preemption provision” of the FHSA reads as follows:
Except as provided in paragraphs (2) and (3), if a hazardous substance or its packaging is subject to a cautionary labeling requirement. . . designed to protect against a risk of illness or injury associated with the substance, no State or political subdivision of a State may establish or continue in effect a cautionary labeling requirement applicable to such substance or packaging and designed to protect against the same risk of illness or injury unless such cautionary labeling requirement is identical to the labeling requirement under section 2(p) or 3(b) [subsec. (p) of this section or section 1262(b) of this title].
Act of Nov. 3,1966, Pub. L. 89-756, § 4(a), 80 Stat. 1303, renumbered and amended, Act of Nov. 6, 1969, Pub. L. 94-284, § 17(a), 90 State. 510, reprinted at 15 U.S.C. § 1261 Note (b)(1)(A) (“Effect upon Federal and State
First, whether a federal statute provides a private cause of action must be determined on a case by case basis using the standards set forth by the United States Supreme Court in Cort v. Ash,
The majority of courts that have considered the issue of whether there exists a private cause of action under the FHSA have consistently found that there is no private cause of action, after analyzing the federal statute against the principles established by the U.S. Supreme Court. This issue has been addressed predominantly at the District Court level. The first federal appellate court to have addressed this matter was the Second
Although the Riegel court rejected a private right of action under the FHSA by utilizing a Cort analysis which has since been refined by the U.S. Supreme Court, subsequent federal cases have also rejected a private cause of action under the refined Cort principles.
The United States Court of Appeals for the Fifth Circuit has concluded that a private cause of action is lacking under the FHSA. The Fifth Circuit opined that “the FHSA does not create a private cause of action. Rather, the FHSA vests the CPSC with the authority to enforce federal labeling requirements.” IQ Prods. Co. v. Pennzoil Prods. Co.,
A number of federal district courts have aligned with the holdings of the Riegel and IQ Products courts in concluding that there is no private cause of action under the FHSA. See Christenson v. St. Mary’s Hosp.,
The great weight of the authority on this matter leads me to conclude that there is no private cause of action under the FHSA. However, there is some persuasive authority that suggests that a state based tort action may lie for failure to comply with the labeling requirements of the FHSA. For instance, after recapitulating the holding in Riegel, the Second Circuit held that “[although there is no federal private right of action under the
Importantly, the United States Third Circuit Court of Appeals (“Third Circuit”) appears to approve of the conclusion that a state negligence action can be brought by a plaintiff for failure to comply with the FHSA. The federal district court in Landis held that while the FHSA does not provide a party with a private right of action, “a state common law claim based on a failure to properly label under the FHSA is not automatically preempted by the Act.” The Third Circuit affirmed this holding without opinion. See Landis,
I further find compelling the holdings of these cases that a state tort claim like negligence may exist only for violation of the FHSA, considering the U.S. Supreme Court’s holding that a private cause of action can be maintained pursuant to federal legislation that does not provide for a private remedy where state law provides a remedy for violation of the federal legislation. See Bates v. Dow Agrosciences, LLC, 544 u.S. 431, 442,
If A.B.C. Compounding violated the FHSA, and Santiago was tortuously injured because of these violations, Santiago may seek redress for her injuries. Count II of Santiago’s Third Amended Complaint asserts common law tort claims for negligence, defective design, and manufacture of Red Hot Solvent, among other claims. Santiago, consistent with the historical purpose of the FHSA, has alleged state law claims of common law torts that would entitle her to a remedy for violation of the FHSA. This finding is buttressed by the pronouncements of the Restatement of Torts, which provides:
Noncompliance and Compliance with Product Safety Statutes or Regulations
In connection with liability for defective design or inadequate instructions or warnings:
(a) a product’s noncompliance with an applicable product safety statute or administrative regulation renders the product defective with respect to the risks sought to be reduced by the statute or regulation; and
(b) a product’s compliance with an applicable product safety statute or administrative regulation is properly considered in determining*297 whether the product is defective with respect to the risks sought to be reduced by the statute or regulation, but such compliance does not preclude as a matter of law a finding of product defect.
Restatement (Third) of Torts: Products Liability § 4.
Accordingly, I conclude that the FHSA does not create a private federal cause of action for the violation of its provisions. However, Santiago may assert state based tort claims resulting from violations of the labeling requirements of the FHSA. Specifically, Santiago will have a cause of action if she can demonstrate a causal relationship between A.B.C. Compounding’s alleged negligent failure to comply with the FSHA and her injuries. The trial court would, however, exceed its jurisdiction to hear any claims against A.B.C. Compounding that are in conflict with the FHSA requirements, or any claims of a private right of action resulting directly from failure to comply with the FHSA.
In her Third Amended Complaint, Santiago alleges three claims of negligence and two claims of defective product against A.B.C. Compounding. Virgin Islands common law allows for tort actions on these allegations.
B. Santiago’s Claims Against ABC Janitors are Barred by the Two-Year Statute of Limitations
Santiago argues that the trial court erred in granting ABC Janitors’ Motion to Dismiss on the basis that the two-year statute of limitations
1. The Discovery Rule does not Toll the Onset of the Statute of Limitations on Santiago’s Claim against ABC Janitors Because Santiago Possessed Knowledge of All Relevant Facts about her Injuries on the Date that She Was Exposed to the Red Hot Solvent
Claims accrue for statute of limitations purposes under 5 V.I.C. § 31(5)(A) on the date of the event or accident causing the harm, but it has long been recognized that this normal principle is not applicable if “the injury or its cause is not immediately evident to the victim.” Joseph v. Hess Oil,
Santiago’s argument fails because the rule of law in In re Tutu Wells is inapplicable to the facts in this case. Considering the circumstances surrounding the kinds of injuries in that case, the District Court in In re Tutu Wells adroitly carved out a narrow exception to the discovery rule applicable to environmental contamination cases. Icl. at 986. The special exception carved out by In re Tutu Wells is inapplicable to personal injury litigation as in this case. (See J.A. at 74.)
Furthermore, the present case is not one of those exceptional cases where the injury or its cause was not immediately known to the victim, as is required for application of the “discovery rule” to the statute of limitations. Moreover, even if this Court were to apply the discovery rule analysis, it would not extend Santiago’s time to sue beyond the two year statute of limitations by even a single day, because she was immediately aware of both her injuries and the cause of her injuries on October 23, 2001.
Essentially, the discovery rule operates to delay the time when the statute of limitations on a plaintiff’s claim begins to accrue. “Under the
Santiago misconstrues the second prong of the discovery rule, arguing that “the statute of limitations began to accrue on January 31, 2003, the date Santiago learned that the actions of ABC Janitors could have caused her injuries[.]” (Br. of Appellant 25.) The second prong of the discovery rule provides that the statute of limitations shall begin to run when the injured party “knew or should have known the cause of her injury.” Tutu Wells,
The following facts demonstrate why the deferred accrual principles of the discovery rule do not result in any extension of time in Santiago’s circumstances. Santiago knew that the Red Hot Solvent was the cause of her injuries because she observed Stanley pour the chemical into the main sewer line outside her door and immediately thereafter sustained her injuries. The same day, Santiago visited Dr. Williams’ office and informed him as to what had transpired. Upon her visit, Dr. Williams treated Santiago for chemical bums. Additionally, during her deposition testimony Santiago stated the following: “when [Stanley] was pouring, he
Contrary to Santiago’s assertion, and regardless of the fact that this case does not concern environmental contamination, the discovery rule as articulated in Tutu Wells does not delay the onset of the statute of limitations in this case. The facts enumerated in Santiago’s complaint unequivocally reveal that the discovery rule is inapplicable to Santiago’s case because Santiago knew that she was injured, and she knew the cause of her injuries as of October 23, 2001.
Lastly, the day of the above occurrence was the day the statute of limitations began to run. Therefore, Santiago’s argument that the statute of limitations is tolled according to the legal principles enunciated in Tutu Wells is meritless as applied under these particular facts.
It is Santiago’s duty and obligation to discover the identity of all parties responsible for the design, development, supply and use of Red Hot Solvent, as she deemed pertinent to the causes of action she wished to file.
2. The Relation Back Doctrine Does Not Toll the Onset of the Statute of Limitations
Santiago argues that her Complaint against ABC Janitors was timely filed because it relates back to the Complaint she previously filed against BC Supplies. (Br. of Appellant 24.) Santiago further argues that she was deprived of the opportunity to determine, through discovery, whether ABC Janitors had knowledge of her Complaint within the time permitted for the filing of the original Complaint. (Br. of Appellant 27.) Therefore, Santiago urges this Court to vacate the trial court’s findings of fact and remand this case with a directive to the trial court to allow her to conduct
Relation back is governed by Rule 15 of the Federal Rules of Civil Procedure. Rule 15 provides, in pertinent part:
(c) RELATION BACK OF AMENDMENTS
(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading; or
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.
Fed. R. Civ. P. 15(c)(1) (emphasis in original). Santiago alleges that, based on Rule 15(c)( 1 )(C), the statute of limitations for her complaint against ABC Janitors relates back to her complaint against BC Engineering. Concerning service of the summons, Rule 4(m) of the Federal Rules of Civil Procedure provides in pertinent part:
(m) TIME LIMIT FOR SERVICE. If a defendant is not served within 120 days after the complaint is filed, the court — on motion or on its*302 own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. R 4(m). However, in order for Santiago’s Third Amended Complaint against ABC Janitors to relate back to her original complaint against BC Engineering, Santiago must prove that within 120 days after the original complaint was filed that ABC Janitors received sufficient notice of the filing of the complaint so that it would not be prejudiced in defending the merits of the lawsuit, and that ABC Janitors knew or should have known that but for Santiago’s mistake concerning ABC Janitor’s identity, it would be named as a defendant.
Both prongs of Rule 15(c)(1)(C) must be satisfied in order for a complaint to relate back. Because the parties dispute only the second prong, which is whether ABC Janitors had the requisite knowledge within the Rule 4(m) period, I will address the second prong first. The Supreme Court of the United States has held that “relation back under Rule 15(c)(1)(C) depends on what the party to be added knew or should have known, not on the amending party’s knowledge or its timeliness in seeking to amend the pleading.” Krupski v. Costa Crociere S.P.A.,
In Krupski, plaintiff Wanda Krupski tripped on board a cruise ship and fractured her femur. The carrier and operator of the ship was Costa Crociere, while Costa Cruise Lines was its “North American sales and marketing agent.” Krupski,
Because Costa Cruise informed Krupski that Costa Crociere was the proper defendant in its answer, corporate disclosure statement, and motion for summary judgment, and yet Krupski delayed for months in moving to amend and then in filing an amended complaint, the court concluded that Krupski knew of the proper defendant and made no mistake.
Id. at 2492. The Eleventh Circuit affirmed. In pertinent part, the Eleventh Circuit concluded that Krupski chose to sue Costa Cruise Lines rather than Costa Crociere because her passenger ticket “clearly identified Costa Crociere as the carrier, the court stated Krupski either knew or should have known of Costa Corciere’s identity as a potential party.” Id. In reversing, the Supreme Court of the United States first clarified that the proper question under Rule 15(c)( 1 )(C)(ii) is “whether [the defendant named in the amended complaint] knew or should have known that it would have been named as a defendant but for an error.” Id. at 2493.
In determining whether Costa Crociere knew or should have known that it would be named as a defendant in the original complaint, the Supreme Court of the United States considered a variety of factors. The factors considered include: (1) that the defendant in the original complaint and the defendant named in the amended complaint were represented by the same attorney; (2) the trial court’s uncontested finding that the defendant named in the amended complaint had constructive notice of the complaint within the period specified by Rule 4(m); (3) the clarity of the complaint, which indicated that the plaintiff intended to sue the company that bore certain specified responsibilities; (4) the misunderstanding, concerning the identity of the proper defendant, that was apparent on the face of the complaint; (5) the information on her ticket communicated to the plaintiff which would be relevant in determining the identity of the
In applying the Krupski factors to this case, I would conclude that the trial court did not abuse its discretion in finding that the Third Amended Complaint filed against ABC Janitors does not relate back to the Original Complaint filed against BC Supplies. First, BC Supplies and ABC Janitors are not represented by the same counsel. Second, it is important to note that the Krupski Court declined to state whether the requisite notice for relation back under Rule 15(c)(1) must be actual or constructive, and I do not make that determination today. It is sufficient to conclude the following: The record on appeal lacks any indication that ABC Janitors had actual or constructive notice of Santiago’s lawsuit. Santiago asserts nothing more than a bald assertion that it is reasonable to conclude that ABC Janitors, one of the myriad of suppliers and distributors of the VIHA, a local governmental agency, had received notice of her lawsuit. ABC Janitors stridently and vehemently objects to any allegation that it had constructive notice and argues that it in fact did not have actual or constructive notice of Santiago’s lawsuit prior to August 2004. Third, the allegations contained in Count II of Santiago’s Second and Third Amended Complaints were not contained in Santiago’s original complaint. The Second and Third Amended Complaints clearly indicate that Santiago intended to sue the entity that distributed the “dangerous” or “dangerous and defective” product and the entity that “failed to properly warn of the dangerous condition” and failed “to give proper instructions as to its use.” Fourth, the record does not reveal any
The trial court’s dismissal of the claims asserted by Santiago in the Third Amended Complaint, which involves common law torts, should be reversed and the case remanded for further proceedings consistent with this opinion. The discovery rule does not operate to delay the onset of the statute of limitations because Santiago knew of her injuries the same day she was injured. Santiago has failed to demonstrate that her complaint against ABC Janitors relates back to her complaint against BC Supplies because she has failed to submit evidence to substantiate her allegation that ABC Janitors had knowledge that it was an intended party to this lawsuit within the time provided by Rule 4(m) or within the two year statute of limitations for tort actions.
concurring. In the underlying case to this appeal, the Plaintiff settled her claims with the undisputed tortfeasor, the Virgin Islands Housing Authority (VIHA), whose employee used the Red Hot Solvent which caused proven injuries to the Appellant. As made clear in the majority opinion by Chief Justice Hodge, the two issues presented by the Appeal were two orders by the Trial Court relating to the remaining Defendants: the first granting ABC Janitor’s motion to dismiss the complaint and the second granting ABC Compounding’s motion for summary judgment. I concur with the majority opinion’s resolution on both of the issues raised on appeal, specifically by affirming the order granting dismissal of ABC Janitors and reversing the Superior Court’s grant of ABC Compounding’s motion for summary judgment and remanding it to the Superior Court for further action. I write separately to highlight a portion of the majority opinion, set out at footnote 11, which I believe is a critical, and incredibly helpful, part of the burgeoning jurisprudence of the Supreme Court.
At footnote 11 on page 275, the majority opinion states:
Superior Court Rule 7 provides that ‘[t]he practice and procedure in the Superior Court shall be governed by the Rules of the Superior Court and, to the extent not inconsistent therewith, by ... the Federal Rules of Civil Procedure.’ Super. Ct. R. 7. This Court has held, however, that, when a Superior Court rule governs the same subject matter as a federal rule, the federal rule cannot apply to Superior Court proceedings pursuant to Superior Court Rule 7 when application of the federal rule would render the Superior Court rule “wholly superflu*307 ous.” See Corraspe v. People,53 V.I. 470 , 482-83 (V.I. 2010). Accordingly, pursuant to this Court’s decision in Corraspe, Superior Court Rule 8, and not Federal Rule of Civil Procedure 15, should govern amendments to complaints, even if Superior Court Rule 8 provides a less comprehensive framework than Federal Rule of Civil Procedure 15. However, since Superior Court Rule 8 does not address the standard for the relation back of amendments, we may consider the doctrines developed under the federal rule in determining this issue.
Footnote 11, Maj. Op. at 275.
This short but explicit discourse regarding the treatment of the Federal Rules of Civil Procedure and the Rules of the Superior Court are of particular importance to the Judges and Magistrates of the Superior Court. I interpret it as investing the Superior Court of the Virgin Islands with greater latitude when confronted by a choice of which of the two sets of rules — federal or territorial — to apply to any case which requires the court to use one or the other based on the facts and issues of the case. I am pleased, indeed honored, to concur in this well-crafted precedent which will certainly be of great value to both the Bench and the Bar of this Territory.
Although there are no specific Virgin Islands regulations pertaining to negligence based tort claims, the American Law Institute’s Restatement of the Law is the applicable authority in accordance with 1 V.I.C. § 4, which states that:
The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary.
This federal court rule is applicable to the Virgin Islands Superior Court by virtue of Super. Ct. R. 7 which states that: “[t]he practice and procedure in the Superior Court shall be governed by the Rules of the Superior Court and, to the extent not inconsistent therewith, the Federal Rules of Criminal Procedure and the Federal Rules of Evidence.” As there are no Superior Court Rule applicable to the amendment of pleadings, FED. R. Civ. P. 15 governs.