Plaintiff was exposed to a disinfectant called CaviCide at her dentist’s office while being fitted for dentures.  She filed suit alleging that such exposure resulted in inflammation, blisters, and a chemical burn in her mouth, as well as liver and kidney damage. The plaintiff alleged, in her Complaint, among other things, that the dentist negligently failed to follow manufacturer’s instructions – which was approved by the EPA, and warned against ingestion, skin contact, and of chronic hazards.

In response to the manufacturer’s argument that the plaintiff’s causes of action were barred by Federal Preemption, the Court stated as follows: “The district court held that because Metrex’s labeling of CaviCide was approved by the EPA, any state-law claims centering around Metrix’s failure to provide adequate warnings and instructions on its products are preempted by FIFRA. Although that result – that FIFRA preempts Texas failure-to-warn claims – may be correct, the reasoning was flawed. That is because the proper inquiry for determining whether a state failure-to-warn statute is preempted calls for an examination of the elements of the common-law duty at issue. This court has not yet had occasion to re-examine FIFRA in light of Bates v. Dow Agrosciences, 544 U.S. 431 (2005). This case – in which neither the pro se litigant nor her opposition has delineated the state-law elements – presents a bad vehicle for us to delve into that undeveloped preemption issue. Instead, we affirm on an alternative basis.

“Hale’s failure-to-warn claim fails as a matter of law because she admits in her complaint that CaviCide’s label warned against the specific use that allegedly caused her injuries…. Hale concedes that ‘the use of CaviCide to disinfect dentures or any surface or instrument that contacts mucous membranes is prohibited by the CaviCide label.’ Moreover, Hale maintains that her injuries were caused by Seder’s ‘failure to follow manufacturer’s instructions clearly printed on the label for the proper use of CaviCide.’ Because Hale pleaded that the label expressly warned against the use that caused her injuries, the warning was adequate as a matter of law.”

 

Hale v. Metrex Research Corp., 963 F.3d 424 (5^th Cir. 2020).