PEDRAZA v. SHELL OIL CO., 942 F.2d 48 (1st Cir. 1991)

CRUZ PEDRAZA, ALEJANDRINA PEDRAZA, ROBERTO PEDRAZA AND MARY ELLEN PEDRAZA, PLAINTIFFS, APPELLEES, v. SHELL OIL COMPANY, DEFENDANT, APPELLANT. CRUZ PEDRAZA, ALEJANDRINA PEDRAZA, ROBERTO PEDRAZA AND MARY ELLEN PEDRAZA, PLAINTIFFS, APPELLANTS, v. SHELL OIL CO., DEFENDANT, APPELLEE.

Nos. 90-1291, 90-1402.United States Court of Appeals, First Circuit.Heard September 14, 1990.
Decided August 13, 1991.

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John B. Stewart, with whom Edward V. Leja and Moriarty, Donoghue Leja, P.A., Springfield, Mass., were on brief, for plaintiffs-appellees.

Burt Ballanfant, Houston, Tex., with whom Robert L. Leonard and Doherty, Wallace, Pillsbury Murphy, Springfield, Mass., were on brief, for defendant-appellant.

Appeal from the United States District Court for the District of Massachusetts.

Before TORRUELLA and CYR, Circuit Judges, and BOWNES, Senior Circuit Judge.

CYR, Circuit Judge.

[1] Plaintiff Cruz Pedraza commenced a civil action in the United States District Court for the District of Massachusetts, alleging that he developed respiratory ailments from workplace exposure to Epichlorohydrin (“ECH”), a toxic chemical manufactured by defendant Shell Oil Co. (“Shell”). The district court dismissed the action on the ground that the Occupational Safety and Health Act, 29 U.S.C. § 655 et seq.

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(“OSHA”), preempts state law. Pedraza appeals. Shell cross-appeals a district court order disallowing Shell’s motion for summary judgment under the applicable statute of limitations. We vacate the order of dismissal, dismiss the cross-appeal, and remand for further proceedings.

I [2] BACKGROUND
[3] The material facts are not in dispute. From 1972 through 1981, Pedraza was employed by United Technologies Corporation in Rocky Hill, Connecticut. During 1977, he was assigned to a chemical mixing operation which exposed him to ECH. Within a few weeks Pedraza experienced asthma symptoms for the first time. Although Pedraza was reassigned in late 1977 to work duties which did not entail ECH exposure, over the course of the next several years he continued to experience acute asthma symptoms.

[4] On November 4, 1985, Pedraza brought the present diversity action, asserting an assortment of tort and warranty claims predicated on Connecticut law. Following discovery, defendant Shell moved for summary judgment on the ground that Pedraza’s claims were time-barred and, alternatively, that Shell had discharged its duty to warn under the so-called “sophisticated user” defense. A United States magistrate judge recommended denial of summary judgment. Shell objected to the recommended disposition and argued, additionally, that OSHA and the related regulations promulgated by the Occupational Safety and Health Administration preempt Connecticut law. The district court directed entry of summary judgment for Shell on the preemption ground.

II [5] DISCUSSION[6] A. Pedraza’s Appeal
[7] We review the grant of summary judgment de novo, employing the same standards utilized by the trial court. See Siegal v. American Honda Motor Co., Inc., 921 F.2d 15, 17 (1st Cir. 1990) Petitti v. New England Tel. Tel. Co., 909 F.2d 28, 30-31 (1st Cir. 1990). Thus, in the present appeal we consider a pure issue of law: whether OSHA preempts state law.

[8] The district court correctly observed that OSHA regulations establish federal restrictions on workplace exposure to ECH[1]
and require employers to provide protective equipment for employees who work with hazardous substances.[2] The court concluded that the provisions of Connecticut common law and statutory law on which Pedraza’s causes of action against Shell are predicated constitute state regulation in the field of occupational safety and health which must yield to OSHA. Pedraza v. Shell Oil Co., 729 F. Supp. 187, 188-89 (D.Mass. 1990).[3]

[9] The Supremacy Clause of the United States Constitution operates to preempt state laws which unduly interfere with federal law or policy. U.S. Const. art. VI, cl. 2. See also Gibbons v. Ogden,
22 U.S. (9 Wheat.) 1, 211, 6 L.Ed. 23, 73 (1824); Securities Industry Ass’n v. Connolly, 883 F.2d 1114 (1st Cir. 1989), cert. denied, ___ U.S. ___, 110 S.Ct. 2559, 109 L.Ed.2d 742 (1990). As we were reminded again recently, however, our preemption analysis begins with “`the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'” Wisconsin Public Intervenor v. Mortier, ___ U.S. ___, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991) (quoting Rice v. Santa Fe Elevator Co., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). The tort rules and kindred state law provisions invoked by Pedraza are well within Connecticut’s “traditional authority to provide tort remedies to [its] citizens….” Silkwood v. Kerr-McGee

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Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984); see also International Paper Co. v. Ouellette, 479 U.S. 481, 503, 107 S.Ct. 805, 817, 93 L.Ed.2d 883 (1987). Consequently, we will not find federal preemption in the present case unless there is “an unambiguous congressional mandate to that effect.” Florida Lime Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146, 83 S.Ct. 1210, 1219, 10 L.Ed.2d 248
(1963). See also Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 715, 105 S.Ct. 2371, 2376, 85 L.Ed.2d 714 (1985); Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604
(1977).

[10] Preemption “always boils down to a matter of congressional intent.” Connolly, 883 F.2d at 1115. See also Louisiana Public Service Comm’n v. FCC, 476 U.S. 355, 369, 106 S.Ct. 1890, 1899, 90 L.Ed.2d 369 (1986) (“The critical question in any preemption analysis is always whether Congress intended that federal regulation supersede state law.”); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 747, 105 S.Ct. 2380, 2393, 85 L.Ed.2d 728 (1985) (“in any pre-emption analysis, `[t]he purpose of Congress is the ultimate touchstone.'”) (citations omitted) Associated Industries of Massachusetts v. Snow, 898 F.2d 274, 278 (1st Cir. 1990) (same). The task of interpretation is simplified substantially, of course, whenever “Congress has made its intent known through explicit statutory language.” English v. General Electric Co., ___ U.S. ___, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65 (1990).

[11] Absent express preemption, the challenged state law must yield when it

regulates conduct in a field that Congress intended the Federal Government to occupy exclusively. Such an intent may be inferred from a `scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,’ or where an Act of Congress `touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’

[12] English, 110 S.Ct. at 2275 (citations omitted). Finally, preemption will be inferred where the state law “actually conflicts with federal law.” Id. Such a conflict arises where it is physically impossible to comply with both the federal and the state law or where “state law `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'” Id. (citation omitted). See also International Paper Co., 479 U.S. at 491-92, 107 S.Ct. at 811; Louisiana Public Service Comm’n, 476 U.S. at 368-69, 106 S.Ct. at 1898-99 Hillsborough County, 471 U.S. at 713, 105 S.Ct. at 2375.

[13] Shell contends that OSHA preempts all the state-created rights and remedies underpinning Pedraza’s claims, since the adjudication of private rights arising under state law would result in the imposition of prospective normative constraints on the manufacture and distribution of ECH. We address Shell’s preemption claim by first examining in context the language of the OSHA preemption provisions. A sound statutory interpretation must encompass the relevant text as well as the structure and context of the enactment. We will “`not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law….'” Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975) (quoting United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122, 12 L.Ed. 1009 (1849)). See also Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 591-92, 7 L.Ed.2d 492 (1962) (“a section of a statute should not be read in isolation from the context of the whole Act.”).

[14] The scope of OSHA preemption is outlined in two sections: (i) section 18,[4] which

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represents a general statement of preemptive intent, and (ii) section 4(b)(4), the “savings clause,” which excepts from preemption a spectrum of state laws.

[15] (i) Section 18
[16] At its outer reaches section 18 preemption does not obtain unless there is an unapproved assertion of “jurisdiction under State law over any occupational safety or health issue” as to which a federal “standard” is already in place. See
29 CFR 1901.2 (“Section 18(a) of the Act is read as preventing any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which a Federal standard has been issued under section 6 of the Act.”) (emphasis added); Associated Industries of Massachusetts, 898 F.2d at 278 (Section 18 “provides that if a federal standard on an occupational safety or health issue is in effect, a state cannot promulgate an occupational safety or health standard relating to that issue, unless it first submits the state plan to OSHA for approval.”). See also Puffer’s Hardware Inc. v. Donovan, 742 F.2d 12, 16 (1st Cir. 1984); National Solid Wastes Management Ass’n v. Killian, 918 F.2d 671, 677-78 (7th Cir. 1990).

[17] Section 3 in turn defines an occupational safety and health “standard” as one which “requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.”29 U.S.C. § 652(8) (1982); see also People v. Chicago Magnet Wire Corp., 126 Ill.2d 356, 128 Ill.Dec. 517, 520, 534 N.E.2d 962, 965 ( § 18 precludes “a State’s development and enforcement of `occupational health and safety standards.'”) (discussing OSHA preemption of State criminal laws) (citations omitted), cert. denied,
___ U.S. ___, 110 S.Ct. 52, 107 L.Ed.2d 21 (1989). Thus, it is not surprising that substantial authority exists for the view that section 18 preempts the unapproved establishment of state standards and regulatory schemes in competition with OSHA, see, e.g., Environmental Encapsulating Corp. v. City of New York, 855 F.2d 48, 55 (2d Cir. 1988); New Jersey State Chamber of Commerce v. Hughey, 774 F.2d 587, 592-93 (3d Cir. 1985), appeal after remand, 868 F.2d 621 (3d Cir.), cert. denied, 492 U.S. 920, 109 S.Ct. 3246, 106 L.Ed.2d 593 (1989), but that there is no authority for the view that OSHA preempts provisions of state law of the sort relied on by Pedraza.

[18] We are aware of no case which holds that OSHA preempts state tort law. Rather, most courts have been concerned with how OSHA affects tort actions, not with whether it preempts state tort law. Thus, every court faced with the issue has held that OSHA creates no private right of action. See, e.g., Pratico v. Portland Terminal Co., 783 F.2d 255, 266 (1st Cir. 1985) (“The legislative history of § 653(b)(4) shows that the intent of the provision was merely to ensure that OSHA was not read to create a private right of action for injured workers which would allow them to bypass the otherwise exclusive remedy of workers’ compensation.”). We have embraced the majority view that the regulations promulgated under OSHA prescribe standards of care relevant in common law negligence actions. Id. at 263-65; see also Albrecht v. Baltimore Ohio R.R. Co., 808 F.2d 329, 332
(4th Cir. 1987); but see Minichello v. U.S. Industries, Inc., 756 F.2d 26, 29 (6th Cir. 1985) (“To use OSHA regulations to establish whether a product is unreasonably dangerous is … improper.”) (product liability action brought by employer against product supplier).

[19] While we discern in OSHA’s language, structure and context a clear congressional signal that section 18 preempts unapproved assertions of state jurisdiction in the development and enforcement of standards relating to occupational health and safety issues in competition with federal standards, we find no warrant whatever for an

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interpretation which would preempt enforcement in the workplace of private rights and remedies traditionally afforded by state laws of general application.[5] Connecticut’s accustomed maintenance of judicial fora for the enforcement of private rights in the workplace, under State laws of general application, seems to us a function far less prophylactic than reactive; less normative than compensatory; and less an arrogation of regulatory jurisdiction over an “occupational safety or health issue” than a neutral forum for the orderly adjustment of private disputes between, among others, the users and suppliers of toxic substances.

[20] (ii) Section 4(b)(4)
[21] We are persuaded that Congress, by its enactment of the “savings clause,” further evinced its intention to spare these provisions of State law from preemption.

Nothing in this Act shall be construed to supersede or in any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.

[22] 29 U.S.C. § 653(b)(4) (1982) (emphasis added).[6] There is a solid consensus that section 4(b)(4) operates to save state tort rules from preemption. See, e.g., National Solid Wastes Management Ass’n, 918 F.2d at 680 n. 9 (collecting cases). See also Atlas Roofing Co. v. Occupational Safety

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Comm’n, 430 U.S. 442, 445, 97 S.Ct. 1261, 1264, 51 L.Ed.2d 464 (1976) (noting that OSHA establishes a new statutory duty on the part of employers and creates new remedies; and stating: “Each remedy exists whether or not an employee is actually injured or killed as a result of the [unsafe or unhealthful] condition, and existing state statutory and common-law remedies for actual injury and death remain unaffected.” (dictum)) Chicago Magnet Wire Corp., 128 Ill.Dec. at 523, 534 N.E.2d at 968 (“Congress expressly stated that OSHA was not intended to preempt two bases of liability that, like criminal law, operate to regulate workplace conduct and implicitly set safety standards — State worker’s compensation and tort law.”) (criminal laws).[7] See generally, Note, The Extent of OSHA Preemption of State Hazard Reporting Requirements, 88 Colum.L.Rev. 630, 641 (1988) (§ 4(b)(4) reveals “Congress’ explicit recognition of the continued validity of state worker compensation and tort remedies. . . .”); Note, Getting away with Murder: Federal OSHA Preemption of State Criminal Prosecutions for Industrial Accidents, 101 Harv. L.Rev. 535, 543 (1987) (“Indeed, section 4(b)(4) saves from preemption two forms of liability that, like criminal law, regulate workplace conduct and set implicit standards — state workers’ compensation and tort law.”).[8]

[23] Thus, we are unpersuaded that the provisions of Connecticut law undergirding Pedraza’s claims against Shell are eclipsed by OSHA.

[24] B. Shell’s Cross-Appeal
[25] Shell cross-appeals the district court order denying its motion for summary judgment on the ground that Pedraza’s claims are time-barred and, alternatively, that it discharged its duty to warn under the so-called “sophisticated user” defense. An order denying summary judgment is not immediately appealable unless it comes within an exception to the “final judgment” rule. The United States Supreme Court puts it plainly:

We hold that a district court’s order denying a motion to disqualify counsel is not appealable under § 1291 prior to final judgment in the underlying litigation. Insofar as the Eighth Circuit reached this conclusion, its decision is correct. But because its decision was contrary to precedent in the Circuit the court went further and reached the merits of the order appealed from. This approach, however, overlooks the fact that the finality requirement embodied in § 1291 is jurisdictional in nature. If the appellate court finds that the order from which a party seeks to appeal does not fall within the statute, its inquiry is over. A court lacks discretion to consider the merits of a case over which it is without jurisdiction, and thus, by definition, a jurisdictional ruling may never be made

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prospective only. We therefore hold that because the Court of Appeals was without jurisdiction to hear the appeal, it was without jurisdiction to decide the merits.

[26] Firestone Tire Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 676, 66 L.Ed.2d 571 (1981) (emphasis added) (footnotes omitted).[9]

[27] The interlocutory orders challenged on Shell’s cross-appeal are not within any exception to the final judgment rule and implicate no issue related to the resolution of the appeal from the final order granting Shell’s motion for summary judgment on the preemption ground.[10] We therefore conclude that Shell’s cross-appeal must be dismissed.

[28] The judgment of the district court is vacated and the case is remanded for further proceedings. Costs are awarded to plaintiffs-appellants.