USCA1 Opinion

October 11, 1996

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-2293

ELIZABETH WILSON, INDIVIDUALLY AND AS

MOTHER AND NEXT FRIEND OF AILSA DeBOLD,

Plaintiff, Appellant,

v.

BRADLEES OF NEW ENGLAND, INC., ET AL.,

Defendants, Appellees.

____________________

ERRATA SHEET

The opinion

of

this Court,

issued

on

September 25,

1996,

amended as follows:

On
"Court".

page 19,

2nd line

of

last

paragraph, replace

"court" w

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-2084

ROBERT B. GRENIER, ET AL.,

Plaintiffs, Appellees,

v.

VERMONT LOG BUILDINGS, INC., ET AL.,

Defendants, Third-Party Plaintiffs, Appellants.

v.

DAP, INC. and CHAMPION INTERNATIONAL CORP.,

Third-Party Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Boudin and Stahl, Circuit Judges.

______________

____________________

Carol A. Griffin with whom Lawrence F. Boyle, W. Joseph Flana

________________
__________________ ________________
and Morrison, Mahoney & Miller were on brief for appellants.
__________________________
Roger D. Matthews with
___________________
Madan, P.C.
___________

were on

brief

whom
for

Nick K. Malhotra
__________________
appellees

International Corp.

____________________

September 25, 1996

DAP,

Inc.

and Madan
_______
and

Champ

____________________

BOUDIN,

Circuit Judge.
______________

Joan Grenier

suffered

from

chronic gastritis for several years, allegedly in reaction to

the wood preservative applied

to the walls of her

log home.

She and her family sued Vermont Log Buildings, Inc. ("Vermont

Log"), the manufacturer of

breaches

93A.1

of warranty,

Vermont

against the

district

Log in

court

rejecting

Because the

(1st

turn filed

granted

Vermont Log appeals.

alleged.

violation of

Cir. 1993),

Mass. Gen.

L. ch.

summary

preservative.

judgment

Vermont Log's

for

The

the

third-party claims.

We affirm.

case was

of the facts is

Snow v.
____

negligence,

third-party complaint

alleged manufacturers of the

manufacturers,

recitation

and

their home, claiming

decided on summary

judgment, our

based primarily on

Harnischfeger Corp.,
___________________

cert. denied, 115

12 F.3d

S. Ct.

the facts as

1154, 1157

56 (1994).

In

____________

April 1975, Robert and

of a log

house from

Joan Grenier purchased the components

an authorized dealer

for Vermont

The logs were shipped

to the Greniers' lot in

and

The

assembled there.

May 1975.

wood

preservative

Massachusetts

Greniers moved into

Vermont Log had treated the

containing

the

Log.

the house in

logs with Woodlife, a

active

ingredient

pentachlorophenol.

____________________

1Chapter

93A outlaws

and unfair or deceptive

any

trade

or

"[u]nfair methods

of competition

acts or practices in the

commerce,"

and permits

damages and attorneys' fees.

-2-2-

awards

conduct of
of

multiple

In early 1982, Joan Grenier began displaying symptoms of

gastritis,

and continued to

back pain

for several years.

April 1987 suspected

suffer intermittent stomach and

A doctor who examined

that her condition

was caused by

preservative in the logs of the Greniers' cabin.

revealed an elevated level

When

she

moved

out

her in

wood

Later tests

of pentachlorophenol in her body.

of

the

house,

her

level

of

pentachlorophenol dropped and her symptoms abated.

At the

was

time the

registered

Insecticide,

U.S.C.

as a

136-136y.

(in this

pesticide as

Fungicide,

regulatory statutes

and

Greniers bought their

case)

and

FIFRA

that are

the

required by

Rodenticide

is one

cabin, Woodlife

of a

Act

("FIFRA"), 7

family of

concerned with

environment.

the Federal

Two

federal

health, safety

of

its

main

components are a requirement of prior approval of the product

by the Environment Protection Agency, 7 U.S.C.

of

EPA approval of

id.
___

the labeling supplied

136a(a), and

with the product,

136a(c)(1)(C).

In

early 1975,

approved,

use or

the

Woodlife labeling,

which EPA

had

warned that the product was toxic and was not "for

storage in or

around the home."

The labeling

also

included

section

describing

the uses

of

the

product:

"PRODUCT USES: Millwork, shingles, siding, structural lumber,

fences,

trellises, outside

lumber

and wood products."

furniture,

vacation homes,

On September 26,

-3-3-

all

1975, the EPA

approved a modified label for Woodlife.

On the new labeling,

the section listing product uses no longer included "vacation

homes" as a use

and added a further warning:

"Do not use on

interior surfaces which are not to be finished."

The Greniers filed suit in

two

allegedly

related

"Vermont Log"),

log

home

corporate

caused

Joan

claims for

for negligence

entities

(collectively,

alleging that pentachlorophenol used

Grenier's illness.

ultimately amended comprised

bare bones

1990 against Vermont Log and

warranty breach,

manufacture and failure

and under chapter 93A.

Joan Grenier sought damages

injuries;

and

her

husband

claimed loss of consortium.

claims as

ten different counts, including

express and implied

in design,

The

in the

the

Greniers'

three

to warn,

for her

children

In

against

1991,

Vermont

DAP, Inc. and

Log

filed a

third-party

Roberts Consolidated

complaint

Industries, the

alleged manufacturers, sellers, and distributors of Woodlife.

Thereafter,

Champion

third-party

defendant (Roberts

case by

agreement).

complaint asserted

L.

ch.

Woodlife,

International, Inc.,

231B based

and

was later

was

dropped

As amended, Vermont

claims

negligence by

for

breaches of

manufacturers.

-4-4-

from the

Log's third-party

claims for contribution under

on

added as

the

Mass. Gen.

manufacturers of

warranty

by

those

In August 1991,

diversity

DAP and Roberts

grounds to

federal

assigned to Judge Zobel.

third-party

Greniers'

defendants

In

removed the action

district court

where it

on

was

due course, Vermont Log and the

moved for

summary

judgment on

the

claims on the grounds that they were barred by the

statute of limitations and that they were preempted by FIFRA.

On November 4, 1992,

Judge Zobel ruled that Joan

and Robert

Grenier's warranty

statute

and negligence claims were

of limitations,

but that

their chapter

were timely under

its longer limitations

held

of

that

none

consortium was

the

barred by the

children's

period.

claims

barred, since the statute

93A claims

She

for

also

loss

of

of limitations was

tolled during their minority.

Judge

Zobel further

contribution from DAP and

to them

ruled

held that

because

Vermont

by selling

Log

the

participated

in

Greniers.

Finally,

Wisconsin Pub.

the

could seek

Champion (for convenience we refer

hereafter as "the Woodlife

that

Vermont Log

could

manufacturers"); but she

not

logs to

the

obtain indemnification

Greniers Vermont

conduct

that

allegedly

damaged

Judge

Zobel

concluded

that

Intervenor v.

Mortier, 501 U.S.

Log

the

under

597 (1991),

__________________________

_______

none of the claims was preempted by FIFRA.

After Judge

Zobel's November 1992 ruling,

reassigned to newly appointed Judge Gorton.

Woodlife

manufacturers

filed

-5-5-

new

the case was

In May 1993, the

motions

for

summary

judgment, this

on

time against Vermont Log;

they argued (based

intervening case law) that FIFRA preempted all of Vermont

Log's remaining

claims against them.

Then-Magistrate Judge

Ponsor, to whom the case had been referred, held a hearing on

the motion in September 1993.

In

July

1994,

Judge

Ponsor,

having

recently

been

appointed a district judge, relinquished jurisdiction in this

case.

At the same time he issued a memorandum in a companion

case brought

Judge

by a

Ponsor

failure to

different plaintiff against

there ruled

warn

and breach

that

of

FIFRA

Vermont Log.

preempted claims

implied warranty,

but

of

not

claims of breach of express warranty and negligent design and

manufacture.

Jillson
_______

v. Vermont Log Bldgs., Inc.,

_________________________

857 F.

Supp. 985 (D. Mass. 1994).

After the present case was returned to Judge

ruled that all of

Vermont Log's claims were "related

labeling

and packaging" of

properly

supported

express

Judge

Gorton found

preempted,

"based

Gorton, he

Woodlife.

While noting

warranty

claim

Vermont

Log's

might

to the

that a

not

be

claim to

be

entirely on the label" because "[n]o other factual or

evidentiary

basis

pleadings."

Judge Gorton granted summary judgment to DAP and

Champion

favor.

and

for

entered a

the

claim

separate

See Fed. R. Civ. P. 54(b).

___

-6-

was

final

provided

judgment in

in

the

their

-6-

On appeal,

Vermont Log

erred in finding that all

argues that the

district court

of its claims were preempted:

it

says that FIFRA preempts only those state-law claims based on

the labeling

or packaging of pesticides and

it asserts that

most of its claims are not based on the labeling or packaging

of Woodlife but rather

upon design and manufacturing defects

and upon failure to warn unrelated to labeling and packaging.

We review the district court's

grant of summary judgment

novo, drawing reasonable inferences

____

de
__

in favor of Vermont Log.

Brown v. Hearst Corp., 54 F.3d 21, 24 (1st Cir. 1995).

_____
____________

We

counts

begin, in the classic fashion, by seeking to lay the

allegedly

preempted

along

side

the

statutory

preemption clause and the cases that have interpreted it

similar language in other statutes.

Where, as here, Congress

has included an express preemption clause in the

start

v.

with the language of

and

that provision.

statute, we

Medtronic, Inc.
_______________

Lohr, 116 S. Ct. 2240 (1996); Cipollone v. Liggett Group,

____
_________
______________

Inc., 505 U.S. 504, 517 (1992).

____

FIFRA's preemption clause, 7

U.S.C.

136v, reads as follows:

(a) In general

A State may regulate the sale or use

of any federally registered
device in

pesticide or

the State, but only

if and to

the extent the regulation does not permit

any

sale

or

use

prohibited

subchapter.

(b) Uniformity

-7-7-

by

this

Such

State

shall

continue in effect
labeling

not

impose

any requirements

or packaging in

or
for

addition to or

different from those required

under this

subchapter.

It

is apparent

from subsection (a),

statutory language, e.g., 7 U.S.C.

____

not wholly

oust the states

generally Mortier, 501

_________ _______

apparent

different

or

packaging."

by

the

additional

as other

136w-1, that FIFRA does

from pesticide regulation.

U.S. at

from subsection

as well

(b)

612-13.

that the

And

it is

equally

state cannot

"requirements" for

See
___

"labeling

apply

and

It was once an open question, but is now settled

Supreme

Court

in

Cipollone
_________

and

Lohr,
____

that

"requirements" in

causes of

includes state

action as well as laws and regulations.

S. Ct. at 2251-53

J.,

this context presumptively

concurring in

Lohr, 116
____

(plurality opinion), id., 2259-60 (Breyer,

___

part

and concurring

in judgment),

id.,
___

2262-63 (O'Connor, J., Scalia, J., and Thomas, J., concurring

in

part and dissenting in part); Cipollone, 505 U.S. at 521_________

22 (plurality

opinion), id.,
___

548-49 (Scalia, J.

and Thomas

J., concurring in judgment in part and dissenting in part).

This court so held in

Co.,
___

996 F.2d 1346 (1st

490 (1993), which, unlike

King v. E.I. Dupont de Nemours &

____
_________________________

Cir.), cert. dismissed,

_______________

114 S. Ct.

Cipollone and Lohr, involved FIFRA

_________
____

itself.

Other circuits are in accord.

Co., 985 F.2d 516 (11th

___

(1993).

Our

E.g., Papas v. Upjohn

____ _____
______

Cir.), cert. denied, 114 S.

____________

case involves

third-party claims--by

Ct. 300

the log

-8-8-

supplier against the

chemical manufacturers--but nothing

in

the

preemption

consumers.

claims based

clause

Indeed,

limits

Vermont

its

effects

Log itself

on the inadequacy of EPA

preempted by FIFRA; its objection,

to

suits

concedes that

by

its

approved labeling are

as already noted, is that

most of its claims do not fit this rubric.

To appraise this objection requires a closer description

of Vermont Log's actual claims.

Here,

Vermont Log's amended

third-party complaint is structured so that, in four separate

counts, two

DAP

different categories

and Champion.

Log's

liable

complaint says

to

Vermont

In

parallel counts

that DAP

Log

in the same counts

own

directed at

III and

and Champion

for their

manufacture, and failures to

then

of claims are

V, Vermont

are or

"negligent

may be

design,

warn"; confusingly, Vermont Log

asserts these wrongs

simply as the

basis

for

a pro

rata

contribution claim

against

DAP and

Champion.2

Then, in

two other parallel counts (IV and VI), Vermont

Log asserts that DAP

breach of

and Champion are or

may be liable

"express and implied warranties

[apparently

a reference

to

Woodlife]

for

that said product

was of

merchantable

____________________

2It is
contribution

unclear why
since

the

Vermont Log

negligent acts

entitle it to full recovery absent

____
Cf.
___

sought

only pro

alleged

rata

might also

some bar like preemption.

Fireside Motors, Inc. v. Nissan Motor Corp., 479 N.E.2d

_____________________
___________________

1386, 1389 (Mass. 1985) (citing Restatement (Second) of Torts

_____________________________
886B, cmt. c (1979)).

-9-9-

quality,

particular

free

of

hazardous

purpose intended."

seeks not pro rata recovery

defects,

On

and

this claim,

Log's

litigation.

claims

It is

easiest to

functionally,

for

the

Vermont Log

but compensation for whatever it

may have to pay to the Greniers plus its costs

the

fit

that

defendants' alleged wrongful conduct.

in conducting

discuss all

is,

in

of Vermont

terms

of

the

Failure to warn.
_______________

Vermont

Log,

preemption

manufacturers should

was

not

suitable

presented

The

as a

most obvious state-law claim

aside,

is

that

have warned Vermont

for

residences.

negligence claim

the

Woodlife

Life that Woodlife

This

or a

for

claim,

claim for

whether

breach of

implied warranty, is preempted by FIFRA as far as the present

case is concerned.

Vermont Log concedes this is so as to any

inadequacy in the labeling as approved by EPA.

It argues, however, that FIFRA permits a failure to warn

claim so

Here

claims

far is it is not "based on labeling or packaging."

lurks a

based

potentially vexing

on

what

was

problem:

said

conversations, in correspondence, or

or

one

not

can imagine

said

during

in point of sales signs

or the

these

absence of such

kinds of

claims

signs.

Whether

should

be

-10-10-

and to what

preempted depends

extent

on

reading of section 136v

and related judgments.

The answers

are far from clear.3

But

the

structure

of

FIFRA

indicates

that Congress

intended the pesticide labeling to bear the primary burden of

_______

informing the buyer of dangers and limitations.

136a(c); 40

C.F.R.

156.10.

If

See 7 U.S.C.
___

the plaintiff wants

to

premise a failure to warn claim on a communication or failure

to

communicate by some other

means, it is

incumbent on the

plaintiff to set forth a coherent specific claim.

Vermont

On appeal,

Log does not even attempt to explain how its failure

to warn claim

is based

on anything other

than the

alleged

inadequacy of the labeling approved by EPA.

Affirmative misstatement.
________________________

Under Massachusetts law,

an

express warranty

may be created

"affirmation

fact or

goods"

of

where the seller

promise"

and this statement becomes

bargain.

Mass.

statement

Gen. L.

might also

ch. 106,

support a

negligent misrepresentation.

429 N.E.2d

1129, 1133-34

conceivably

be

based

or

makes any

"description of

part of the

2-213.

the

basis of the

An

inaccurate

recovery under a

theory of

Cf. Danca v. Taunton Sav. Bank,

___ _____
_________________

(Mass. 1982).

either

on

Such claims

statements

made

could

in

the

____________________

3Compare
_______

Chemical Specialties Manufacturers Ass'n

__________________________________________

Allenby, 958 F.2d

_______
S.

Ct.

80

warnings not

(1992)

941, 946-47 (9th Cir.),

(state

v.

cert. denied, 113

____________

statute requiring

point-of-sale

preempted), with Taylor AG Industries v. Pure_____________________

_____

Gro, 54 F.3d 555, 561 (9th Cir. 1995) (failure to warn claims

___
based on inadequacy of point-of-sale signs preempted).

-11-11-

labeling

or elsewhere;

and the

statements might

be either

consistent with FIFRA requirements or in violation of them.

These variations

preemption questions.

to FIFRA itself,

give rise to

different and

difficult

The circuits are not unanimous even as

see generally Lowe v.

Sporicidin Int'l, 47

_____________ ____

F.3d

As

124, 128-29 (4th Cir. 1995),

let alone other statutes.

Lohr illustrates, the signals

____

blurred by

disagreements

________________

from the Supreme Court are

within the

Court.

But, in

this

case, the only affirmative misstatement identified by Vermont

Log is the statement

was

suitable

for

in the original labeling

application

to

"all

wood

that Woodlife

and

lumber

products."

This unqualified statement may

have been inaccurate, as

its later revision suggests, but it was a statement contained

in

EPA-approved

labeling.

To premise

liability

on

the

inaccuracy of the statement is in substance to determine that

a different statement should have been made

Yet the

statute itself prohibits

in the labeling.

a state requirement

as to

labeling that is "different"

law.

7 U.S.C.

136v.

only

express

warranty

See
___

than that prescribed by federal

Lowe, 47 F.3d at 129.

____

Thus

the

claim

specifically

identified

by

Misdesign or manufacture.
_________________________

Whether on

a warranty

or

Vermont Log is preempted.

negligence theory, recovery might

the

design

or

manufacture

of

-12-12-

be premised on mistakes in

the

product,

and

the

manufacturing defect might be generic or a defect in a single

item. E.g., Hayes v.

____ _____

1984).

277 (Mass.

Whether such claims are preempted may depend both on

their precise

FIFRA,

Ariens Co., 462 N.E.2d 273,

__________

make-up and on the underlying

the situation

is complicated

statute.

by the

Under

fact that

the

preemption clause refers only to labeling and packaging while

the statute empowers

the agency to

well as the description.

In all

manufacturing

7 U.S.C.

events, merely

defect

claim

to call
____

does

regulate the product

as

136a(a).

something

not

a design

automatically

or

avoid

FIFRA's explicit

Litigation, 859
__________

Vermont

that

F. Supp. 619,

Log's only

Woodlife

because

preemption clause.

it

was

was

In re DuPont-Benlate
_____________________

623-24 (D.P.R. 1994).

elaborated claim

defectively

foreseeable

under this

designed

that

it

would

residences and it was unfit for this use.

____________

effectively no more

than an

or

attack on the

heading is

manufactured

be

But

Here,

used

on

this claim is

failure to

warn

against residential use and therefore is a preempted claim.

This

certainly does

not mean

that every

misdesign or

mismanufacturing claim would be debarred by section 136v.

In

batch

defective

of

properly

or

pesticide that,

tainted;

while

made

or

products,

perhaps

one

one

properly approved

item

might

be

might

design

and

labeled,

was

unduly dangerous for any legitimate use.

it

is hard

to

see

why

FIFRA

In the former case,

preemption

would

even

be

-13-13-

arguable;

preemption

in the latter, there

claim, based

not on

would be at

section

most an implied
_______

136v but

on EPA's

approval of

the product; and

it is

by no means

clear that

such a preemption claim would prevail.4

However, in

hint

whatever

mismanufactured

regard as

not

fit

this instance, Vermont Log

of

how

beyond

a disguised

for

Woodlife

Vermont

has

been

has provided no

misdesigned

or

Log's suggestion--which

we

labeling claim--that the

residential

use.

Vermont

product was

Log's

position,

implicit

in its brief and explicit in oral argument, is that

no

disclosure or

such

elaboration

was

required.

It

is

enough, it contends, that its complaint alleged misdesign and

mismanufacture in general terms and that not every such claim

is automatically preempted.

If the Woodlife manufacturers had squarely argued a lack

of

evidence in

their motion

for summary

judgment, Vermont

Log's

position could be rejected

bears the burden of

v. Catrett, 477 U.S.

_______

little

in

judgment

the way

stage

to

out of hand.

Vermont Log

proof at trial and, under

Celotex Corp.
_____________

317, 322-23 (1986), it would

of a

negative

require

evidence--trialworthy

Vermont

evidence

of a

averment at

Log

to

take very

the summary

identify

specific

its

misdesign or

____________________

4See Cipollone, 112 S.

___ _________
v.

Medtronic,
_________

Act), with
____

18 F.3d

Ct. at 2622-23.

13 (1st Cir.

Compare Mendes
_______ ______

1994) (Medical

In re DuPont-Benlate-Litigation, 859
_______________________________

622-23 (FIFRA).

-14-14-

Device

F. Supp. at

manufacturing defect which

claim.

was not

a disguised

mislabeling

Mottolo v. Fireman's Fund Ins. Co., 43 F.3d 723, 725

_______
_______________________

(1st Cir. 1995).

Whether

Vermont Log

challenge could be

judgment

motion was

got such due

debated.

On the one

cast primarily

notice of

a Celotex
_______

hand, the

in abstract

summary

preemption

terms; on the other hand, Vermont Log could at any time

have

explained to the district court

_________

or

just what kind of

misdesign

manufacturing defect claim it was making over and above a

recast

version of its preempted labeling claim.

As is often

the case, the answer is to be found more in common sense than

categorical rules.

If

we

thought

that

Vermont Log

had

been

genuinely

misled, we would remand to allow it to identify its misdesign

or

mismanufacture

manufacturers to

claim

and

formulate

a new

require

the

summary judgment

chemical

motion.

Indeed, we might be tempted to follow this course even now if

Vermont Log had troubled to tell us just what specific design

or manufacturing defect it plausibly suspected

or how it had

been

unearth

denied

promising

opportunity

to

this

information through discovery.

But at oral argument our most

persistent

subject were

questions

on

the

met

only

with

generalities.

It is too late

in the day for such gambits.

It is one

thing at the outset of a case to ask for indulgence to pursue

-15-15-

initial discovery; it is quite another

after

five years, to ask for a reversal based on theoretical

possibilities but without any effort

might

or

matter, on appeal and

bear fruit.

If there are unpreempted claims of design

manufacturing defect,

identified

them,

to explain how a remand

let

Vermont Log

alone

pointed

has

never adequately

to

any

supporting

evidence.

Indemnification.
_______________

As

already explained,

Vermont Log's

third-party complaint did explicitly request contribution; in

fact, its negligence counts

were asserted not as independent

claims for full recovery but merely as the basis for pro rata

contribution

under the

although Vermont Log now

Massachusetts statute.

Conversely,

speaks of "indemnification" claims,

the third-party complaint nowhere refers

although

the

warranty counts

seek

to indemnification,

the

same damages

that

indemnification might provide.

Traditionally, indemnification has comprised

a distinct

body of doctrine that, to put the matter too crudely, permits

a vicariously

obtain

liable party (e.g., an

____

reimbursement

from

blameworthy agent) whose conduct

culpable

641,

party

(e.g.,
____

gave rise to the liability.

P. Keeton, Prosser and Keeton on Torts

____________________________

ed.

innocent principal) to

51,

at 341-44 (5th

1984); Decker v. Black and Decker Mfg. Co., 449 N.E.2d

______
___________________________

644-45

(Mass.

1983).

Thus,

indemnification

may

-16-16-

sometimes

be

available even

when no

other direct

says as

an alternative

tort or

contract claim will lie.

On

appeal, Vermont

argument that Judge

indemnity" on

Log

Zobel erred in

final

rejecting its "claim

the ground that "[i]demnity

of

is permitted only

where

one does

not join

the negligent act

confess ourselves puzzled by

principle may be

Log's

theories asserted by

automatically

is far from

this case--at

clear that

least on

the Greniers--is of

preclude an

. .

."

We

Judge Zobel's ruling; while the

sound, it

culpability in

Vermont

some warranty

a kind that

indemnification claim

would

by Vermont

Log against DAP and Champion.

Yet even if we

has asserted a separate

assume (dubitante) that Vermont Log

_________

claim for indemnification and assume

further that it is not barred from indemnification by its own

participation in the

body of

state

wrong, a crucial obstacle remains.

doctrine comprising indemnification

to

claim does

state; but

require a

in

Massachusetts, an

showing of

fault on

The

law varies from

indemnification

the part of

the

_____

parties

or

parties

against

indemnification is leveled.

whom

the

demand

for

Stewart v. Roy Bros., 265 N.E.2d

_______
_________

357, 365 (Mass. 1970).

Here, the only allegations of

against DAP

and Champion are

breaches of

warranty made

fault made by Vermont Log

the charges of

in counts

-17-17-

negligence and

III-VI of the

amended

third-party complaint.

We have already

found these charges

to be inadequate, some because of federal preemption and some

because

they are

And if these

both too

general and

claims are themselves

wholly unsupported.

inadequate, there is

no

foundation for a showing of fault as to DAP and Champion that

would permit Vermont Log to claim indemnification.

There is a

final point to be made

future cases of this kind.

in

an

unhappy position

against it while

those who supplied

it would

that is pertinent to

Vermont Log has now placed itself

where

the

no longer

it with Woodlife.

Greniers might

recover

have recourse

against

This

assumes, perhaps

fancifully, that the Greniers, or

structure and then

time

to avoid

defense

prove a

every

at least the minors, might

claim that managed

type of

preemption

based on Vermont Log's own

at the

and any

same

kind

possible ignorance.

of

But

the theoretical risk is there.

This risk arises directly from

final judgment

under Rule 54(b)

third-party claims in advance

the entry of a

separate

against Vermont Log

on its

of the full resolution

of the

Greniers' first-party claims against Vermont Log.

If Vermont

Log had objected to a separate judgment in the district court

and appealed
___

much open

first-party

on that issue in

to such an argument.

and

this Court, we would

be very

The reason is the overlap of

third-party claims

in

this

case and

resulting risk (in this case) of inconsistent results.

the

-18-18-

But

Vermont Log has not made

no objection to

the

the entry of a separate

district court

judgment.

this argument.

had

no obligation

If it had

judgment, certainly

to

withhold such

Indeed, Vermont Log may have had tactical reasons,

unknown

to

complaints.

us,

for

Our sole

alert district courts

allowing the

uncoupling

of

reason for mentioning the point

two

is to

in future cases that such an objection

to a separate judgment may have significant force.

Affirmed.
________

the

-19-19-