
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,  is        amended as follows:            On  page 19,  2nd line  of  last  paragraph, replace  "court" with        "Court".                            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  Flanagan            ________________           __________________  ___________________        and Morrison, Mahoney & Miller were on brief for appellants.            __________________________            Roger  D.  Matthews with  whom  Nick  K.  Malhotra  and Madan  and            ___________________             __________________      __________        Madan, P.C.  were on  brief  for  appellees  DAP,  Inc.  and  Champion        ___________        International Corp.                                 ____________________                                  September 25, 1996                                 ____________________                 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  their home, claiming  negligence,            breaches  of warranty,  and  violation of  Mass. Gen.  L. ch.            93A.1   Vermont  Log in  turn filed  a  third-party complaint            against the  alleged manufacturers of the  preservative.  The            district   court    granted   summary   judgment    for   the            manufacturers,  rejecting  Vermont Log's  third-party claims.            Vermont Log appeals.  We affirm.                 Because the  case was  decided on summary  judgment, our            recitation  of the facts is  based primarily on  the facts as            alleged.   Snow v.  Harnischfeger Corp.,  12 F.3d  1154, 1157                       ____     ___________________            (1st  Cir. 1993),  cert. denied, 115  S. Ct.  56 (1994).   In                               ____________            April 1975, Robert and  Joan Grenier purchased the components            of a log  house from  an authorized dealer  for Vermont  Log.            The logs were shipped  to the Greniers' lot in  Massachusetts            and  assembled there.  The  Greniers moved into  the house in            May 1975.  Vermont Log had treated the  logs with Woodlife, a            wood   preservative   containing   the    active   ingredient            pentachlorophenol.                                            ____________________                 1Chapter  93A outlaws  "[u]nfair methods  of competition            and unfair or deceptive  acts or practices in the  conduct of            any  trade  or  commerce,"  and permits  awards  of  multiple            damages and attorneys' fees.                                         -2-                                         -2-                 In early 1982, Joan Grenier began displaying symptoms of            gastritis,  and continued to  suffer intermittent stomach and            back pain  for several years.   A doctor who examined  her in            April 1987 suspected  that her condition  was caused by  wood            preservative in the logs of the Greniers' cabin.  Later tests            revealed an elevated level  of pentachlorophenol in her body.            When  she   moved   out   of  the   house,   her   level   of            pentachlorophenol dropped and her symptoms abated.                 At the  time the  Greniers bought their  cabin, Woodlife            was  registered  as a  pesticide as  required by  the Federal            Insecticide,  Fungicide,  and  Rodenticide  Act  ("FIFRA"), 7            U.S.C.     136-136y.  FIFRA  is one  of a  family of  federal            regulatory statutes  that are  concerned with  health, safety            and  (in this  case)  the  environment.    Two  of  its  main            components are a requirement of prior approval of the product            by the Environment Protection Agency, 7 U.S.C.   136a(a), and            of  EPA approval of  the labeling supplied  with the product,            id.   136a(c)(1)(C).            ___                 In  early 1975,  the  Woodlife labeling,  which EPA  had            approved,  warned that the product was toxic and was not "for            use or  storage in or  around the home."   The labeling  also            included  a  section  describing  the uses  of  the  product:            "PRODUCT USES: Millwork, shingles, siding, structural lumber,            fences,  trellises, outside  furniture,  vacation homes,  all            lumber  and wood products."   On September 26,  1975, the EPA                                         -3-                                         -3-            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  1990 against Vermont Log and            two  allegedly  related  corporate   entities  (collectively,            "Vermont Log"),  alleging that pentachlorophenol used  in the            log  home  caused  Joan  Grenier's illness.    The  claims as            ultimately amended comprised  ten different counts, including            bare bones  claims for  express and implied  warranty breach,            for negligence  in design,  manufacture and failure  to warn,            and under chapter 93A.   Joan Grenier sought damages  for her            injuries;  her  husband  and  the  Greniers'  three  children            claimed loss of consortium.                 In  1991,  Vermont  Log  filed a  third-party  complaint            against  DAP, Inc. and  Roberts Consolidated  Industries, the            alleged manufacturers, sellers, and distributors of Woodlife.            Thereafter,  Champion  International, Inc.,  was  added as  a            third-party  defendant (Roberts  was later  dropped  from the            case by  agreement).   As amended, Vermont  Log's third-party            complaint asserted  claims for contribution under  Mass. Gen.            L.  ch.  231B based  on  negligence by  the  manufacturers of            Woodlife,  and  claims  for  breaches of  warranty  by  those            manufacturers.                                          -4-                                         -4-                 In August 1991,  DAP and Roberts  removed the action  on            diversity  grounds to  federal  district court  where it  was            assigned to Judge Zobel.  In  due course, Vermont Log and the            third-party  defendants  moved for  summary  judgment on  the            Greniers'  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  and negligence claims were  barred by the            statute  of limitations,  but that  their chapter  93A claims            were timely under  its longer limitations  period.  She  also            held   that  none  of  the  children's  claims  for  loss  of            consortium was  barred, since the statute  of limitations was            tolled during their minority.                 Judge  Zobel further  held that  Vermont Log  could seek            contribution from DAP and  Champion (for convenience we refer            to them  hereafter as "the Woodlife  manufacturers"); but she            ruled  that  Vermont  Log  could  not  obtain indemnification            because  by selling  the  logs to  the  Greniers Vermont  Log            participated  in  the  conduct  that  allegedly  damaged  the            Greniers.     Finally,  Judge  Zobel  concluded   that  under            Wisconsin Pub.  Intervenor v.  Mortier, 501 U.S.  597 (1991),            __________________________     _______            none of the claims was preempted by FIFRA.                 After Judge  Zobel's November 1992 ruling,  the case was            reassigned to newly appointed Judge Gorton.  In May 1993, the            Woodlife   manufacturers  filed   new  motions   for  summary                                         -5-                                         -5-            judgment, this  time against Vermont Log;  they argued (based            on  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  by a  different plaintiff against  Vermont Log.            Judge  Ponsor  there ruled  that  FIFRA  preempted claims  of            failure to  warn  and breach  of  implied warranty,  but  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  Gorton, he            ruled that all of  Vermont Log's claims were "related  to the            labeling  and packaging" of  Woodlife.   While noting  that a            properly  supported  express  warranty  claim  might  not  be            preempted,  Judge  Gorton found  Vermont  Log's  claim to  be            "based  entirely on the label" because "[n]o other factual or            evidentiary  basis   for  the  claim  was   provided  in  the            pleadings."  Judge Gorton granted summary judgment to DAP and            Champion  and  entered a  separate  final  judgment in  their            favor.  See Fed. R. Civ. P. 54(b).                    ___                                         -6-                                         -6-                 On appeal,  Vermont Log  argues that the  district court            erred in finding that all  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  de                                                                       __            novo, drawing reasonable inferences  in favor of Vermont Log.            ____            Brown v. Hearst Corp., 54 F.3d 21, 24 (1st Cir. 1995).            _____    ____________                 We  begin, in the classic fashion, by seeking to lay the            counts   allegedly  preempted   along   side  the   statutory            preemption clause and the cases that have interpreted it  and            similar language in other statutes.  Where, as here, Congress            has included an express preemption clause in the  statute, we            start  with the language of  that provision.  Medtronic, Inc.                                                          _______________            v.  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  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                      subchapter.                 (b) Uniformity                                         -7-                                         -7-                           Such  State  shall  not   impose  or                      continue in effect  any requirements  for                      labeling  or packaging in  addition to or                      different from those required  under this                      subchapter.                 It  is apparent  from subsection (a),  as well  as other            statutory language, e.g., 7 U.S.C.    136w-1, that FIFRA does                                ____            not wholly  oust the states  from pesticide regulation.   See                                                                      ___            generally Mortier, 501  U.S. at  612-13.  And  it is  equally            _________ _______            apparent  from subsection  (b)  that the  state cannot  apply            different  or  additional  "requirements" for  "labeling  and            packaging."  It was once an open question, but is now settled            by   the  Supreme   Court   in  Cipollone   and  Lohr,   that                                            _________        ____            "requirements" in  this context presumptively  includes state            causes of  action as well as laws and regulations.  Lohr, 116                                                                ____            S. Ct. at 2251-53  (plurality opinion), id., 2259-60 (Breyer,                                                    ___            J.,  concurring in  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  King v. E.I. Dupont de Nemours  &                                        ____    _________________________            Co.,  996 F.2d 1346 (1st  Cir.), cert. dismissed,  114 S. Ct.            ___                              _______________            490 (1993), which, unlike  Cipollone and Lohr, involved FIFRA                                       _________     ____            itself.  Other circuits are in accord.  E.g., Papas v. Upjohn                                                    ____  _____    ______            Co., 985 F.2d 516 (11th  Cir.), cert. denied, 114 S.  Ct. 300            ___                             ____________            (1993).   Our  case involves  third-party claims--by  the log                                         -8-                                         -8-            supplier against the  chemical manufacturers--but nothing  in            the  preemption  clause  limits   its  effects  to  suits  by            consumers.   Indeed,  Vermont  Log itself  concedes that  its            claims based  on the inadequacy of EPA  approved labeling are            preempted by FIFRA; its objection,  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  different categories  of claims are  directed at            DAP  and Champion.   In  parallel counts  III and  V, Vermont            Log's  complaint says  that DAP  and Champion  are or  may be            liable  to  Vermont  Log  for their  own  "negligent  design,            manufacture, and failures to  warn"; confusingly, Vermont Log            then  in the same counts  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  and Champion are or  may be liable  for            breach of  "express and implied warranties  that said product            [apparently  a reference  to  Woodlife]  was of  merchantable                                            ____________________                 2It is  unclear why  Vermont Log  sought  only pro  rata            contribution  since  the  negligent acts  alleged  might also            entitle it to full recovery absent  some bar like preemption.                          ____            Cf.  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,  free   of  hazardous  defects,  and   fit  for  the            particular  purpose intended."   On  this claim,  Vermont Log            seeks not pro rata recovery  but compensation for whatever it            may have to pay to the Greniers plus its costs  in conducting            the  litigation.   It is  easiest to  discuss all  of Vermont            Log's  claims   functionally,  that  is,  in   terms  of  the            defendants' alleged wrongful conduct.                   Failure to warn.  The  most obvious state-law claim  for                 _______________            Vermont   Log,  preemption  aside,   is  that   the  Woodlife            manufacturers should  have warned Vermont  Life that Woodlife            was  not  suitable  for  residences.    This  claim,  whether            presented  as a  negligence claim  or a  claim for  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  far is it is not "based on labeling or packaging."             Here  lurks a  potentially vexing  problem:  one  can imagine            claims  based  on   what  was   said  or   not  said   during            conversations, in correspondence, or  in point of sales signs            or the  absence of such  signs.  Whether  and to what  extent            these  kinds of  claims  should  be  preempted depends  on  a                                         -10-                                         -10-            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.  See 7 U.S.C.                                                             ___              136a(c); 40  C.F.R.   156.10.   If  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.  On appeal,            Vermont  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  where the seller  makes any            "affirmation  of  fact or  promise"  or  "description of  the            goods"  and this statement becomes  part of the  basis of the            bargain.  Mass.  Gen. L.  ch. 106,    2-213.   An  inaccurate            statement  might also  support a  recovery under a  theory of            negligent misrepresentation.  Cf. Danca v. Taunton Sav. Bank,                                          ___ _____    _________________            429 N.E.2d  1129, 1133-34  (Mass. 1982).   Such claims  could            conceivably  be  based  either  on  statements  made  in  the                                            ____________________                 3Compare  Chemical  Specialties  Manufacturers Ass'n  v.                  _______  __________________________________________            Allenby, 958 F.2d  941, 946-47 (9th Cir.),  cert. denied, 113            _______                                     ____________            S.  Ct.  80  (1992)  (state  statute requiring  point-of-sale            warnings not  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  give rise to  different and  difficult            preemption questions.  The circuits are not unanimous even as            to FIFRA itself,  see generally Lowe v.  Sporicidin Int'l, 47                              _____________ ____     ________________            F.3d  124, 128-29 (4th Cir. 1995),  let alone other statutes.            As  Lohr illustrates, the signals  from the Supreme Court are                ____            blurred by  disagreements  within the  Court.   But, in  this            case, the only affirmative misstatement identified by Vermont            Log is the statement  in the original labeling  that Woodlife            was  suitable  for  application   to  "all  wood  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  in the labeling.            Yet the  statute itself prohibits  a state requirement  as to            labeling that is "different"  than that prescribed by federal            law.  7 U.S.C.   136v.  See  Lowe, 47 F.3d at 129.  Thus  the                                    ___  ____            only  express  warranty   claim  specifically  identified  by            Vermont Log is preempted.                 Misdesign  or manufacture.    Whether on  a warranty  or                 _________________________            negligence theory, recovery might  be premised on mistakes in            the   design  or   manufacture  of   the  product,   and  the                                         -12-                                         -12-            manufacturing defect might be generic or a defect in a single            item. E.g., Hayes v.  Ariens Co., 462 N.E.2d 273,  277 (Mass.                  ____  _____     __________            1984).   Whether such claims are preempted may depend both on            their precise  make-up and on the underlying  statute.  Under            FIFRA,  the situation  is complicated  by the  fact that  the            preemption clause refers only to labeling and packaging while            the statute empowers  the agency to  regulate the product  as            well as the description.  7 U.S.C.   136a(a).                 In all  events, merely  to call  something  a design  or                                            ____            manufacturing  defect  claim  does  not  automatically  avoid            FIFRA's explicit  preemption clause.    In re  DuPont-Benlate                                                    _____________________            Litigation, 859  F. Supp. 619,  623-24 (D.P.R. 1994).   Here,            __________            Vermont  Log's only  elaborated claim  under this  heading is            that  Woodlife  was  defectively  designed   or  manufactured            because  it  was  foreseeable  that  it  would  be   used  on            residences and it was unfit for this use.  But  this claim is                                        ____________            effectively no more  than an  attack on the  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            a  batch  of  properly  made  products,  one  item  might  be            defective  or  tainted;    or  perhaps  one  might  design  a            pesticide that,  while  properly approved  and  labeled,  was            unduly dangerous for any legitimate use.  In the former case,            it  is hard  to  see  why  FIFRA  preemption  would  even  be                                         -13-                                         -13-            arguable;  in the latter, there  would be at  most an implied                                                                  _______            preemption  claim, based  not on  section  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  this instance, Vermont Log  has provided no            hint  whatever  of  how  Woodlife  has  been  misdesigned  or            mismanufactured  beyond  Vermont  Log's suggestion--which  we            regard as  a disguised  labeling claim--that the  product was            not  fit  for  residential  use.    Vermont  Log's  position,            implicit  in its brief and explicit in oral argument, is that            no  such  disclosure or  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  out of hand.   Vermont Log            bears the burden of  proof at trial and, under  Celotex Corp.                                                            _____________            v. Catrett, 477 U.S.  317, 322-23 (1986), it would  take very               _______            little  in  the way  of a  negative  averment at  the summary            judgment  stage  to  require  Vermont  Log  to  identify  its            evidence--trialworthy  evidence  of a  specific  misdesign or                                            ____________________                 4See Cipollone, 112 S.  Ct. at 2622-23.   Compare Mendes                  ___ _________                            _______ ______            v.  Medtronic,  18 F.3d  13 (1st Cir.  1994) (Medical  Device                _________            Act), with  In re DuPont-Benlate-Litigation, 859  F. Supp. at                  ____  _______________________________            622-23 (FIFRA).                                         -14-                                         -14-            manufacturing defect which  was not  a disguised  mislabeling            claim.   Mottolo v. Fireman's Fund Ins. Co., 43 F.3d 723, 725                     _______    _______________________            (1st Cir. 1995).                 Whether  Vermont Log  got such due  notice of  a Celotex                                                                  _______            challenge could be  debated.   On the one  hand, the  summary            judgment  motion was  cast primarily  in abstract  preemption            terms; on the other hand, Vermont Log could at any time  have            explained to the district court  just what kind of  misdesign            _________            or  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   claim    and   require   the   chemical            manufacturers to  formulate  a new  summary judgment  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  denied   a  promising   opportunity  to   unearth  this            information through discovery.  But at oral argument our most            persistent  questions  on  the  subject were  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  matter, on appeal and            after  five years, to ask for a reversal based on theoretical            possibilities but without any effort  to explain how a remand            might  bear fruit.  If there are unpreempted claims of design            or  manufacturing defect,  Vermont Log  has  never adequately            identified  them,   let  alone  pointed  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  Massachusetts statute.   Conversely,            although Vermont Log now  speaks of "indemnification" claims,            the third-party complaint nowhere refers  to indemnification,            although  the  warranty counts  seek  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  liable party (e.g., an  innocent principal) to                                         ____            obtain  reimbursement   from  a   culpable  party   (e.g.,  a                                                                 ____            blameworthy agent) whose conduct  gave rise to the liability.            P. Keeton, Prosser  and Keeton on Torts   51,  at 341-44 (5th                       ____________________________            ed.  1984); Decker v. Black  and Decker Mfg.  Co., 449 N.E.2d                        ______    ___________________________            641,  644-45   (Mass.  1983).     Thus,  indemnification  may                                         -16-                                         -16-            sometimes  be  available even  when no  other direct  tort or            contract claim will lie.                 On  appeal, Vermont  Log  says as  an alternative  final            argument that Judge  Zobel erred in  rejecting its "claim  of            indemnity" on  the ground that "[i]demnity  is permitted only            where  one does  not join  the negligent act   .  . .  ."  We            confess ourselves puzzled by  Judge Zobel's ruling; while the            principle may be  sound, it  is far from  clear that  Vermont            Log's  culpability in  this case--at  least on  some warranty            theories asserted by  the Greniers--is of  a kind that  would            automatically  preclude an  indemnification claim  by Vermont            Log against DAP and Champion.                      Yet even if we  assume (dubitante) that Vermont Log                                              _________            has asserted a separate  claim for indemnification and assume            further that it is not barred from indemnification by its own            participation in the  wrong, a crucial obstacle remains.  The            body of  doctrine comprising indemnification  law varies from            state  to  state; but  in  Massachusetts, an  indemnification            claim does  require a  showing of  fault on  the part of  the                                               _____            parties   or   parties   against    whom   the   demand   for            indemnification is leveled.  Stewart v. Roy Bros., 265 N.E.2d                                         _______    _________            357, 365 (Mass. 1970).                 Here, the only allegations of  fault made by Vermont Log            against DAP  and Champion are  the charges of  negligence and            breaches of  warranty made  in counts  III-VI of the  amended                                         -17-                                         -17-            third-party complaint.   We have already  found these charges            to be inadequate, some because of federal preemption and some            because  they are  both too  general and  wholly unsupported.            And if these  claims are themselves  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  that is pertinent to            future cases of this kind.  Vermont Log has now placed itself            in  an  unhappy position  where  the  Greniers might  recover            against it while  it would  no longer  have recourse  against            those who supplied  it with Woodlife.  This  assumes, perhaps            fancifully, that the Greniers, or  at least the minors, might            structure and then  prove a  claim that managed  at the  same            time  to avoid  every  type of  preemption  and any  kind  of            defense  based on Vermont Log's own  possible ignorance.  But            the theoretical risk is there.                 This risk arises directly from  the entry of a  separate            final judgment  under Rule 54(b)  against Vermont Log  on its            third-party claims in advance  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  on that issue in  this Court, we would  be very            ___            much open  to such an argument.  The reason is the overlap of            first-party  and  third-party claims  in  this  case and  the            resulting risk (in this case) of inconsistent results.                                         -18-                                         -18-                 But  Vermont Log has not made  this argument.  If it had            no objection to  the entry of a separate  judgment, certainly            the  district court  had  no obligation  to  withhold such  a            judgment.  Indeed, Vermont Log may have had tactical reasons,            unknown  to  us,  for  allowing the  uncoupling  of  the  two            complaints.  Our sole  reason for mentioning the point  is to            alert district courts  in future cases that such an objection            to a separate judgment may have significant force.                 Affirmed.                 ________                                         -19-                                         -19-
