EDNA SANTIAGO, Appellant/Plaintiff v. VIRGIN ISLANDS HOUSING AUTHORITY, et al., Appellees/Defendants
Santiago v. Virgin Islands Housing Authority
HODGE, Chief Justice', SWAN, Associate Justice', and BRADY, Designated Justice, SWAN, Associate Justice, concurring. BRADY, Designated Justice, concurring.
EDNA SANTIAGO, Appellant/Plaintiff v. VIRGIN ISLANDS HOUSING AUTHORITY, et al., Appellees/Defendants
EDNA SANTIAGO, Appellant/Plaintiff v. VIRGIN ISLANDS HOUSING AUTHORITY, et al., Appellees/Defendants
S. Ct. Civil No. 2010-0010
Supreme Court of the Virgin Islands
July 31, 2012
Lee J. Rohn, Esq., Rohn & Carpenter, LLC, St. Croix, USVI, Attorney for Appellant.
Carol G. Hurst, Esq., Carol G. Hurst, P.C., St. Thomas, USVI, Attorney for Appellee ABC Janitors of St. Croix, Inc.
Wilfredo A. Geigel, Esq., Law Offices ofWilfredo A. Géigel, St. Croix, USVI, Attorney for Appellee ABC Compounding Co., Inc.
HODGE, Chief Justice', SWAN, Associate Justice', and BRADY, Designated Justice, SWAN, Associate Justice, concurring. BRADY, Designated Justice, concurring.
Associate Justice Maria M. Cabret has been recused from this matter. The Honorable Julio A. Brady sits in her place by designation pursuant to title 4, section 24(a) of the Virgin Islands Code.
OPINION OF THE COURT
(July 31,2012)
Hodge, Chief Justice.
Appellant Edna Santiago seeks reversal and remand of the Superior Court's November 3, 2007 Order granting summary judgment in favor of Appellee ABC Compounding Company, Inc. (ABC Compounding), and its June 11, 2008 Order granting the motion to dismiss filed by Appellee ABC Janitors of St. Croix, Inc. (ABC Janitors). For the reasons that follow, this Court affirms the Superior Court's order granting ABC Janitor's motion to dismiss and reverses and remands its order granting ABC Compounding's motion for summary judgment.
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 Compounding became a party to the action while Taylor Labs was dismissed as a defendant. On June 13, 2003, VIHA filed a motion for leave to file a third party complaint against BC Engineering Supplies, Inc. (BC Supplies) because its records indicated that BC Supplies distributed the sewer solvent and was one company that had sold the sewer solvent to VIHA around the time of the incident involving Santiago. In response, Santiago moved to amend the first amended complaint and add BC Supplies as a defendant. The Superior Court granted both motions on August 18,2003. On August 4, 2004, VIHA filed another motion for leave to file a third party complaint against ABC Janitors on the basis that ABC Janitors also sold the sewer solvent to VIHA. Santiago subsequently sought leave to file a third amended complaint adding ABC Janitors as a defendant on August 23, 2004. The Superior Court granted both motions on September 23, 2004.
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 ABC Janitors was essentially the same relief sought by its prior motion to dismiss.
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, 49 V.I. 322, 329 (V.I. 2007). The standard of review on an appeal from a grant of summary judgment is ele novo. Arlington Funding Services, Inc. v. Geigel, 51 V.I. 118, 127 (V.I. 2009). "When reviewing an order granting summary judgment, this Court is required to view the facts in the light most favorable to the opposing party, and in effect, perform the same test the Superior Court would have performed." Id. "The moving party can only prevail if it shows that there is no genuine issue regarding any material fact and that it is entitled to judgment as a matter of law." Id. To the extent its decision is not based on legal conclusions or factual findings, this Court reviews the Superior Court's denial of a motion for leave to amend a complaint for abuse of discretion. See Kanter v. Barella, 489 F.3d 170, 175 (3d Cir. 2007).
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 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).
The first question that this Court must answer is whether the sewer solvent is a hazardous substance subject to the FHSA. As discussed above, the test to determine whether a product is subject to the FHSA is whether it is reasonably foreseeable that the product will be available for household use. See 16 C.F.R. § 1500.3(c)(10)(i). Santiago argues that the sewer solvent is not a hazardous substance intended, or packaged in a form suitable, for use in the household, but rather industrial supplies which are not covered by the FHSA. In support of this claim, Santiago points to the label of the sewer solvent which states that it "is designed exclusively for industrial and institutional use by trained personnel." Santiago also points to the fact that VIHA was responsible for purchasing the sewer solvent and bringing it to her house — not an individual consumer. While the term "hazardous substance" does not include industrial supplies that might be taken into a home by a serviceman, the factors cited by Santiago are not determinative of whether the product is subject to the FHSA.
In an analogous case, Canty v. Ever-Last Supply Co., 296 NJ. Super. 68, 685 A.2d 1365, 1368 (1996), the court craftily explained the relevant factors in determining whether a substance is hazardous. There, the issue before the court was whether the FHSA governed a lacquer sealant product. Id. The "[p]laintiffs contended] . . . that Lacquer Seal [was] a professional product sold primarily to tradespeople and that it therefore is not a product intended for household use." Id. at 1369. The plaintiffs also argued "that by labeling the lacquer container 'For Professional Use Only,' the defendants intended the product for industrial application, not household use; thus, Lacquer Seal would not be covered by the FHSA." Id. at 1369-70. The court rejected these arguments and held that "the test is not what the manufacturer intends, but whether it is reasonably foreseeable to the manufacturer that the product will be available for household use." Id. at 1370. The focus, the court held, is on "whether the product, through its normal distribution scheme, is made available to the ordinary consumer. The fact that the defendants' product is labeled 'For Professional Use Only,' does not determine the issue. The important consideration is whether the product could be purchased by the average consumer for household use." Id. Ultimately the court determined that
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. Based on the lack of restrictions on who may purchase the sewer solvent, the Superior Court was justified in determining that it is reasonably foreseeable that household consumers will have access to the product. Therefore, the Superior Court did not err in holding that the sewer solvent was "intended, or packaged in a form suitable, for use in the household" within the meaning of the regulations, and thus subject to the labeling requirements of the FHSA.
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., 244 F.3d 104, 109 (2d Cir. 2001) (quoting House Comm, on Interstate and Foreign Commerce, Federal Hazardous Substances Labeling Act, H.R. Rep. No. 1861, 86th Cong., 2d Sess. 2 (1960), reprinted in 1960 U.S.C.C.A.N. 2833, 2833). When initially enacted, the FHSA did not mention federal preemption, but the 1966 Amendments to the Act added a provision to preempt any state cause of action that seeks to impose a labeling requirement different from the requirements in the FHSA or the regulations promulgated under the FHSA. See 15 U.S.C. § 1261 note (b)(1)(A) ("[I]f a hazardous substance or its packaging is subject to a cautionary labeling requirement under [this Act] . no 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 unless such cautionary labeling requirement is identical to the labeling requirement under [this Act]."). Published authority interpreting the FHSA's preemption provision, however, is sparse. For that reason, to supplement our analysis of the FHSA's preemption provision we turn to the extensive body of case law interpreting a parallel preemption provision under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). We, like several other courts, find the FIFRA's preemption language similar to that of the FHSA and believe that cases interpreting that clause may provide guidance in construing the analogous FHSA provision. See Comeaux v. Nat'l Tea Co., 81 F.3d 42, 43-44 (5th Cir. 1996) (holding the FHSA and the FIFRA have "almost identical preemptive provisions"); Nat'l Bank of Commerce of El Dorado v. Kimberly-Clark Corp., 38 F.3d 988, 993 (8th Cir. 1994) (stating that the FHSA preemption language is essentially identical to that of the FIFRA); Moss v. Parks Corp., 985 F.2d 736, 740 n.3 (4th Cir. 1993) ("[t]he preemption issues arising under FHSA are identical to those arising under FIFRA." (quoting Chemical Specialties Mfg. Ass'n Inv. v. Allenby, 958 F.2d 941, 945 (9th Cir. 1992))). With that in mind we turn to the FHSA's preemption clause.
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, 244 F.3d at 109; Comeaux, 81 F.3d at 44; Moss, 985 F.2d at 740; Pennsylvania General Ins. Co. v. Landis, 96 F. Supp. 2d 408, 414-15 (D.N.J. 2000), aff'd, 248 F.3d 1131 (3d Cir. 2000); Kirstein v. W.M. Barr & Company, Inc., 983 F. Supp. 753, 761 (N.D. Ill. 1997), aff'd, 159 F.3d 1065 (7th Cir. 1998). "[H]owever, a common law tort action based on failure to warn may be brought for noncompliance with the [FHSA's] labeling requirements." Mattis v. Carlon Elec. Products, 295 F.3d 856, 862 (8th Cir. 2002). See Milanese, 244 F.3d at 109-10 ("[A] state cause of action alleging non-compliance with the FHSA would not be pre-empted by the Act." (citing Torres Rios v. LPS Labs., Inc., 152 F.3d 11, 13 (1st Cir. 1998); Moss, 985 F.2d at 740; Landis, 96 F. Supp. 2d at 415; Kirstein, 983 F. Supp. at 761)); id. at 110 ("Although there is no federal private right of action under the FHSA, a state negligence claim lies for failure to comply with the federal, FHSA-mandated labeling requirements.") (internal citations omitted). This conclusion is further supported by the United States Supreme Court's interpretation of the FIFRA's similar preemption provision. See Bates v. Dow Agrosciences LLC, 544 U.S. 431, 444, 125 S. Ct. 1788, 1798, 161 L. Ed. 2d 687 (2005). In Bates, the Supreme Court held that for a common law cause of action to be preempted by the FIFRA, "it must impose a labeling or packaging requirement that is 'in addition to or different from those required under this subchapter.' " Id. (emphasis in original). Moreover, the Court noted that in evaluating whether a particular cause of action would impose additional or different labeling requirements, a "state law need not explicitly incorporate FIFRA's standards as an element of a cause of action in order to survive pre-emption." Id. at 447, 125 S. Ct. at 1800. "In undertaking a preemption analysis at the pleadings stage of a case, a court should bear in mind the concept of equivalence. To survive pre-emption, the state-law requirement need not be phrased in the identical language as its corresponding FIFRA requirement . . . ." Id. at 454, 125 S. Ct. at 1804 (emphasis is original).
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, 125 S. Ct. at 1798. In order for a common law cause of action to be preempted by the FIFRA, it must impose "a requirement 'for labeling or packaging ; rules governing the design of a product, for example, are not pre-empted." Id. (italics in original; bolding added). The Court elaborated on this point, stating:
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 proper use of Red Hot Sewer Solvent; 3) negligently 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 against its dangers; 4) defective product; and 5) defectively designed or manufactured product. Santiago also broadly alleges that the sewer solvent "failed to contain proper warnings and conditions for its use." Beginning with her claims for 4) defective product and 5) defectively designed or manufactured product, it is clear that they do not involve the imposition of labeling or packaging requirements. As such, we find that these claims are not preempted by the FHSA. See Bates, 544 U.S. at 444, 125 S. Ct. at 1798'"The Superior Court therefore erred in granting ABC Compounding's motion for summary judgment.
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. Unlike her claims for defective product and defectively designed or manufactured product, these claims clearly involve the imposition of labeling requirements. However, it is not clear whether these claims impose labeling requirements different from the requirements embodied in the FHSA or whether they allege noncompliance with the FHSA's labeling requirements. As noted above, "a state cause of action alleging non-compliance with the FHSA would not be pre-empted by the Act." See Milanese, 244 F.3d at 109-10. And a complaint is not required to explicitly allege that a product's label did not comply with the FHSA's labeling requirements, as long as it uses equivalent language indicating as much. See Bates, 544 U.S. at 454, 125 S. Ct. at 1804. Accordingly, since it is not clear whether these claims impose labeling requirements different from the requirements embodied in the FHSA or whether they allege non-compliance with the FHSA, we will remand this issue to the Superior Court to determine whether Santiago's failure to warn claims are preempted by the FHSA. See Richards v. Home Depot, Inc., 456 F.3d 76, 77 (2d Cir. 2006) ("If the product complies with the labeling requirements of the FHSA, plaintiff's failure-to-warn claims are preempted; otherwise, the claims can go forward.").
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. Specifically, Santiago claims that under the discovery rule, the two-year statute of limitations accrued on January 30,2003, when Santiago first learned that ABC Janitors may have contributed to the cause of her injuries. Alternatively, Santiago contends that the complaint against ABC Janitors related back to the complaint filed against BC Supplies such that the applicable two-year statute of limitation imposed by 5 V.I.C. § 31 (5)(A) did not bar Santiago's claim against ABC Janitors.
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 injury actions, this Court must first determine when those claims accrued, commencing the running of the statute of limitations period. "Once a cause of action has accrued and the statutory period for bringing the action has expired, an injured party is barred from bringing suit unless the statute of limitations has been tolled." Bohus v. Beloff, 950 F.2d 919, 924 (3d Cir. 1991). The discovery rule tolls the statute of limitations when, despite the exercise of due diligence, the injury or its cause is not immediately evident to the victim. See Joseph v. Hess Oil, 867 F.2d 179, 182 (3d Cir. 1989). Under the discovery rule, the focus is not on "the plaintiff's actual knowledge, but rather 'whether the knowledge was known, or through the exercise of diligence, knowable to [the] plaintiff.' " Bohus, 950 F.2d at 925 (quoting O'Brien v. Eli Lilly & Co., 668 F.2d 704, 711 (3d Cir. 1981)). "To demonstrate reasonable diligence, a plaintiff must establish[] that he pursued the cause of his injury with those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others." Mest v. Cabot Corp., 449 F.3d 502, 511 (3d Cir. 2006) (internal quotation marks omitted) (alterations in original).
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).
In support of her claim, Santiago relies on In re Tutu Wells Contamination Litigation, 909 F. Supp. 980 (D.V.I. 1995). Based on the District Court's holding in In re Tutu Wells, Santiago argues that the discovery rule tolled the statute of limitations on her claims against ABC Janitors until January 2003, when VIHA's interrogatory responses identified ABC Janitors as the supplier of the sewer solvent. Santiago's reliance on In re Tutu Wells, however, is misguided. First, the court in In re Tutu Wells adopted a narrow "environmental discovery rule" which is only applicable to "Virgin Islands' common law tort claims premised on environmental contamination," and which defers the running of the applicable statutory period until a plaintiff, through the exercise of reasonable diligence, can obtain critical facts necessary to indicate that the actions or inactions of a particular party could have been a cause of the injury. In re Tutu Wells, 909 F. Supp. at 986. In its holding, the District Court found that the environmental discovery rule "is dictated in the relatively limited context of environmental torts" because
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, 770 F.2d 20, 23 (3d Cir. 1985), which held:
[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 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. To interpret the local enactment and determine the legal standard that should govern amendments, we will consider case law interpreting Federal Rule of Civil Procedure 15(c), which contains language similar to Superior Court Rule 8. See H&H Avionics, Inc. v. V.I. Port Auth., 52 V.I. 458, 461 (V.I. 2009). The provisions now set forth in Federal Rule of Civil Procedure 15(c)(1)(C) "can ameliorate the running of the statute of limitations on a claim by making the amended claim relate back to the original, timely filed complaint." Singletary v. Pennsylvania Dept. of Corr., 266 F.3d 186, 193 (3d Cir. 2001) (citing Nelson v. County of Allegheny, 60 F.3d 1010, 1015 (3d Cir.1995)). Rule 15 provides in pertinent part:
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., 434 F.3d 196, 203 (3d Cir. 2006) (internal citations omitted).
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 conditions were met. See Fed. R. Civ. R 15(c)(l)(C)(i)-(ii). The requirements of Rule 15(c)(1)(C)(i)-(ii) must be met "within the period provided by Rule 4(m) for service of the summons and complaint," Fed. R. Civ. P. 15(c)(1)(C), which is "within 120 days after the complaint is filed," Fed. R. Civ. P. 4(m). Under Rule 15(c)(l)(C)(i), the newly named party must have "received such notice of the action that it will not be prejudiced in defending on the merits." This condition "has two requirements, notice and the absence of prejudice, each of which must be satisfied." Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 458 (3d Cir. 1996). The third condition is that the newly named party must have known, or should have known that "but for a mistake" made by the plaintiff concerning the newly named party's identity, "the action would have been brought against" the newly named party in the first place. Fed. R. Civ. P. 15(c)(l)(C)(ii).
For purposes of the relation back doctrine, notice can be "actual, constructive, or imputed." Singletary, 266 F.3d at 195. Based on the record, however, there is no evidence that ABC Janitors had received actual, constructive, or imputed notice of Santiago's claims until August 2004. Santiago filed her original complaint against VIHA and Taylor Labs, Inc. on August 26, 2002. She later amended her complaint to add BC Supplies as a defendant on August 18, 2003. Then, in August 2004, ABC Janitors received a third-party complaint from VIHA naming it as a defendant in the action, and in September 2004, ABC Janitors received an amended complaint from Santiago naming it as a defendant. With the exception of VIHA's August 2004 third-party complaint and Santiago's September 2004 amended complaint — which were both received by ABC Janitors more than 120 days after Santiago's filing of the original complaint — there is no evidence in the record that indicates that ABC Janitors received any notice of Santiago's claims.
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.
Alternatively, Santiago argues that she did not have an opportunity to conduct discovery to determine whether ABC Janitors had received notice within 120 days of the filing of the original complaint, and the Superior Court's denial of Santiago's request to conduct discovery was an abuse of discretion. This argument is not supported by the record. In the Superior Court's Memorandum Opinion and Order entered November 3, 2007, it denied ABC Janitors' motion to dismiss as it related to the relation back doctrine, and allowed Santiago the opportunity to conduct discovery to determine whether ABC Janitors received notice of her claims. Discovery was extended until April 30, 2008, and on June 11, 2008 — after allowing Santiago six months to conduct discovery — the Superior Court dismissed Santiago's claims against ABC Janitors because "[t]here is no evidence in the record . . . that ABC Janitors received notice of the pendency of this action within the period of time required by Federal Rule of Civil Procedure 15(c)(1)(C)." Thus, we also reject Santiago's claim that she was not afforded an opportunity to conduct discovery to determine whether ABC Janitors received notice of her claims, and the Superior Court's determination to grant ABC Janitors' motion to dismiss is accordingly affirmed.
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.
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 different from those required under this [Act]."), with 15 U.S.C. § 1261 note (b)(1)(A) ("[I]f a hazardous substance or its packaging is subject to a cautionary labeling requirement under [this Act]... no 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 unless such cautionary labeling requirement is identical to the labeling requirement under [this Act].").
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 of its dangers, as well as her broad assertion that the sewer solvent fails to contain proper warnings and conditions for its use. And under 15 U.S.C. § 1263(a), a manufacturer violates the FHSA if it "introduc[es] into interstate commerce . any misbranded hazardous substance." A hazardous substance is "misbranded" if its packaging or labeling "is in violation of an applicable regulation issued pursuant to [this Act] or if such substance... fails to bear a label — (1) which states conspicuously . (E) an affirmative statement of the principal hazard or hazards, such as... 'Vapor Harmful,' 'Causes Burns,' 'Absorbed Through Skin,' or similar wording descriptive of the hazard [and] (F) precautionary measures describing the action to be followed or avoided____"15 U.S.C. § 1261(p)(l). Thus, if Santiago can prove these claims by showing that the sewer solvent did not comply with the FHSA's labeling requirements, then her claims would not be preempted by the FHSA.
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, 49 V.I. 396, 403 n.7 (V.I. 2008). Nor are the Third Circuit's interpretations of Virgin Islands local law binding precedent. In re People of the V.I., 51 V.I. 374, 389 n.9 (V.I. 2009).
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, 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.
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 federal provisions depends on the particular provision's legislative intent, and must be considered on a case by case basis. See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15, 100 S. Ct. 242, 62 L. Ed. 2d 146 (1979) (holding that "[w]hile some opinions of the Court have placed considerable emphasis upon the desirability of implying private rights of action in order to provide remedies thought to effectuate the purposes of a given statute, [] what must ultimately be determined is whether Congress intended to create the private remedy.").