UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN ANDREWS,
Plaintiff-Appellant,

v.

BUCKMAN LABORATORIES,
INCORPORATED,                                                       No. 98-1189
Defendant-Appellee,

and

BETZ PAPER CHEM, INCORPORATED,
Defendant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CA-95-3920-4-22)

Argued: January 29, 1999

Decided: May 21, 1999

Before WILKINS and KING, Circuit Judges, and
GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Walter Ronald Bonds, Chicago, Illinois, for Appellant.
Donald Alan Cockrill, OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, P.C., Greenville, South Carolina, for Appellee. ON
BRIEF: Martin S. Driggers, DRIGGERS & BAXLEY, Hartsville,
South Carolina, for Appellant. Kimila L. Wooten, OGLETREE,
DEAKINS, NASH, SMOAK & STEWART, P.C., Greenville, South
Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

John Andrews sued Buckman Laboratories, Inc. for personal inju-
ries he claims to have sustained as a result of exposure to Buckman's
product, Busan 30 WB ("Busan"). At the close of Andrews's case in
a jury trial, the district court dismissed all of Andrews's state-law
claims arising from the alleged deficiency of the Material Safety Data
Sheet ("MSDS") that Buckman provided with shipments of Busan,
concluding that those claims were preempted by the Federal Insecti-
cide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136-136v
("FIFRA").

On appeal, Andrews asserts that the district court erroneously
applied the preemption doctrine, and that the dismissal of his state-
law claims must be reversed. Upon consideration of the record, briefs,
and oral argument, we find it unnecessary to reach the FIFRA pre-
emption issue. We affirm the district court on the basis of Andrews's
failure to meet the required standards of proof that the alleged defects
in Buckman's MSDS actually caused his injuries.

I.

Andrews worked for twenty-two years as a paper tender at the
Sonoco Company's paper mill in Hartsville, South Carolina. In order
to perform his duties, Andrews was required to spend a substantial

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amount of his time at the open end of a pulp processing machine,
which the parties refer to as "Machine #3." This machine continu-
ously produced a mist of the stock water flowing through it. Andrews
was exposed to this mist for about half of his usual workday.

For years, Sonoco had treated its stock water with biocides, which
are chemicals designed to kill the bacteria that naturally form in the
paper stock. In the fall of 1992, Sonoco began testing an additional
biocide, Busan, which is manufactured by Buckman. Busan is a pesti-
cide and, consequently, FIFRA requires it to be registered with the
Environmental Protection Agency ("EPA"). As part of the registration
process, Buckman produced and the EPA approved a warning label
that Buckman attaches to each container of Busan that it sells.

In addition to the EPA-approved label, Buckman was required to
produce an MSDS, which it sends to all purchasers of Busan. The
MSDS is not reviewed by the EPA, but is required by the Department
of Labor's Hazard Communication Standards, 29 C.F.R.§ 1910.1200
(1992). The MSDS for Busan lists specific handling instructions and
hazard warnings applicable to that product. Both Andrews and Buck-
man agree that an MSDS accompanied the Busan that Buckman
shipped to Sonoco. The parties further agree that a copy of this MSDS
was posted in a shed near Andrews's workstation at the paper mill.

Buckman's employees visited the Sonoco plant to supervise Sono-
co's testing of Busan in its paper stock. The tests began on December
14, 1992, and Buckman's employees returned to the plant two to three
times per week during the testing period to regulate the amount of
Busan being injected into the paper stock. Three days after Sonoco
began testing Busan, Andrews noticed a rash on his scalp and the
back of his neck. As he continued working, the rash grew much worse
and spread over his body, causing him to miss work during the spring
of 1993. The Busan tests ended in June 1993, and Sonoco ultimately
decided not to use the product, partly because of the problems
Andrews was experiencing.

By October 1993, Andrews's doctor instructed him to stop working
at the paper mill. One month later, Andrews was diagnosed with
occupational contact dermatitis. Although Andrews returned to work

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between May 1995 and July 1997, his dermatitis has since become
disabling, and he can no longer work.

In October 1995, Andrews sued Buckman in South Carolina state
court, alleging that exposure to Busan had caused his disabling injuries.1
Andrews's complaint contained a wide range of South Carolina prod-
uct liability claims relating to Busan: negligent manufacture, design,
warning, and instruction as to use; breach of express and implied war-
ranties; and strict liability. Buckman responded by removing the case
to the District of South Carolina at Florence.

At trial, one of Andrews's primary theories was that the MSDS for
Busan was legally insufficient--thus Buckman was negligent in pre-
paring it--because it failed to warn against the hazards of dermal
exposure to a mist of diluted Busan. Andrews claimed that a proper
MSDS would have warned employees exposed to such a mist to wear
waterproof clothing. However, Andrews testified that he never read
the MSDS for Busan.

At the close of Andrews's case, the district court granted Buck-
man's motion to dismiss all of Andrews's failure-to-warn claims that
were based on the claimed inadequacy of the Busan MSDS.2 The dis-
trict court concluded that allowing Andrews to pursue his state-law
claims would violate FIFRA's prohibition against states imposing any
requirements for labeling or packaging of pesticides"in addition to or
different from" those required by FIFRA itself. See 7 U.S.C. § 136v.
Andrews now appeals the district court's dismissal of his failure-to-
warn claims.

II.

The parties focus primarily on the question whether the district
court erred in concluding that Andrews's various state-law failure-to-
warn claims are preempted by FIFRA. We have resolved several
_________________________________________________________________
1 Andrews also sued Betz Paper Chem, Incorporated, another chemical
manufacturer. Betz has since been dismissed from the suit.
2 The remainder of Andrews's case went to the jury, which returned a
verdict in favor of Buckman on all claims.

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cases involving FIFRA's preemptive effect on state-law tort claims,3
but we need not analyze these issues today. Even if none of
Andrews's claims is preempted by FIFRA, all of his failure-to-warn
claims must fail because Andrews has offered insufficient proof that
the alleged defects in Buckman's MSDS caused his injuries. Although
the district court expressly refused to address the causation issue, we
may nevertheless affirm its dismissal order on this alternative ground
because it is fully supported by the record. Brewster of Lynchburg,
Inc. v. Dial Corp., 33 F.3d 355, 361 n.3 (4th Cir. 1994).

Under South Carolina law, Andrews cannot succeed on his claim
that Buckman negligently failed to warn him of the dangers posed by
Busan unless he proves that Buckman's insufficient warning caused
his injuries. Young v. Tide Craft, Inc., 242 S.E.2d 671, 675 (S.C.
1978) (elements of negligence include proximate cause). The
improper warning of which Andrews complains is Buckman's MSDS
for Busan. Specifically, Andrews contends that the MSDS is deficient
because it fails to warn that dermal exposure to a mist of diluted
Busan--like the mist to which Andrews was exposed--could be haz-
ardous. Andrews argues that, had Buckman provided such a warning,
his injuries might have been avoided.

But Andrews testified at his deposition and again at trial that he
never read the MSDS for Busan, although it was posted near his
workstation. Andrews further testified that he never looked at any
posted MSDSs because, he believed, he had no reason to read them.
This failure to read the MSDS for Busan, coupled with the absence
of any other proof that Andrews otherwise was aware of its contents,
necessarily precludes any causal link between the warnings in the
MSDS and Andrews's injuries. See Lowe v. Sporicidin Int'l, 47 F.3d
124, 131 (4th Cir. 1995) (Maryland plaintiff's failure to read allegedly
misleading advertisement barred her negligent-failure-to-warn claim).
_________________________________________________________________
3 Under FIFRA, no state may "impose or continue in effect any require-
ments for labeling or packaging in addition to or different from those
required under this subchapter." 7 U.S.C. § 136v(b). We have previously
addressed the preemptive effect of this language. See Lowe v. Sporicidin
Int'l, 47 F.3d 124 (4th Cir. 1995); Worm v. American Cyanamid Co., 5
F.3d 744 (4th Cir. 1993); Worm v. American Cyanamid Co., 970 F.2d
1301 (4th Cir. 1992).

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Put differently, even a perfect warning could not have prevented
Andrews's injury if Andrews never read or became aware of the
warning.

Andrews attempts to bridge this causal gap by arguing that, when
faced with a legally insufficient warning, South Carolina courts would
presume causation. We recognize that other jurisdictions have
adopted this approach. E.g., Ferebee v. Chevron Chem. Co., 736 F.2d
1529, 1539 (D.C. Cir. 1984) (applying Maryland law); Reyes v. Wyeth
Labs., 498 F.2d 1264, 1281-82 (5th Cir. 1974) (applying Texas law).
But we have previously concluded that South Carolina courts would
not apply a "causation presumption" whenever a warning is proven
insufficient: "There is no such presumption under South Carolina law,
and we are unwilling to create one here." Odom v. G.D. Searle & Co.,
979 F.2d 1001, 1003 (4th Cir. 1992). Andrews points to no develop-
ment in South Carolina law since Odom--and we have found none--
that undermines our decision in that case. As a result, we cannot con-
clude that South Carolina courts would adopt this fundamental,
burden-shifting presumption whenever a plaintiff proves that a warn-
ing is insufficient.

III.

Because Andrews's failure-to-warn claims must fail, even if they
are not preempted by FIFRA, the district court's dismissal of those
claims must be sustained, and its dismissal order is hereby affirmed.

AFFIRMED

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