    Case: 18-20640    Document: 00515465430      Page: 1   Date Filed: 06/24/2020




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit


                                 No. 18-20640
                                                                       FILED
                                                                   June 24, 2020
                                                                   Lyle W. Cayce
                                                                        Clerk
SANDRA G. HALE,
                                            Plaintiff–Appellant,
versus
METREX RESEARCH CORPORATION,
                                            Defendant–Appellee.



                Appeal from the United States District Court
                     for the Southern District of Texas




Before SMITH, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM:

     Sandra Hale claims that she suffered injuries when her dentist, Stephen
Seder, soaked her dentures in CaviCide disinfecting solution, which is manu-
factured by Metrex Research Corporation (“Metrex”). She sued Metrex, Seder,
the Department of Veterans Affairs, and several others. The only claim Hale
asserts against Metrex is its supposed failure to warn and label its product
adequately. Metrex moved for judgment on the pleadings, which the district
court granted. We affirm.

                                       I.
      Hale visited Seder to be fitted with dentures. Seder directed an assistant
to soak her dentures in CaviCide for fifteen minutes, then only briefly rinsed
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                                  No. 18-20640
them with tap water before inserting them into her mouth. Hale alleges that,
as a result of her exposure to CaviCide, she sustained inflammation, blisters,
a chemical burn in her mouth, and liver and kidney damage.

      CaviCide is a pesticide approved and registered by the Environmental
Protection Agency (“EPA”) and regulated by the Federal Insecticide, Fungicide,
and Rodenticide Act (“FIFRA”), 7 U.S.C. §§ 136–136y. According to Hale’s
complaint, Seder negligently “fail[ed] to follow manufacturer’s instructions for
the proper use of CaviCide.” Those instructions warned against
   • Ingestion: Ingestion may cause gastrointestinal disturbances and
     central nervous system effects such as headache, dizziness, drow-
     siness and nausea. . . . If swallowed, get medical advice by calling
     a Poison Control Center or hospital emergency room . . .
   • Skin Contact: Prolonged or repeated exposure may cause mild irri-
     tation. Rinse skin immediately with plenty of water for 15–20 min-
     utes. Call a poison control center or doctor for further treatment
     advice.
   • Chronic Hazards: Prolonged overexposure to ethylene glycol mon-
     obutyl ether [a component of CaviCide] may affect liver, kidneys,
     blood, lymphatic system or central nervous system.
CaviCide’s label—which was approved by the EPA—also warned that the
“product is not to be used . . . on any surface or instrument that (1) is introduced
directly into the human body, either into or in contact with the bloodstream or
normally sterile areas of the body, or (2) contacts intact mucous membranes[.]”

      Hale alleged that “Metrex was negligent, grossly negligent and reckless
in failing to warn and label its CaviCide product against” improper use.
Metrex moved for judgment on the pleadings under Federal Rule of Civil Pro-
cedure 12(c) for four independent reasons. First, Metrex claimed that FIFRA
preempts Hale’s state-law failure-to-warn claim. Second, Metrex stated that
Hale’s First Amended Complaint concedes that Metrex’s label was adequate,
thereby negating an essential element of her failure-to-warn claim. Third,

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                                      No. 18-20640
Metrex averred that Texas Civil Practice and Remedies Code § 82.008 creates
a presumption of no liability where the defendant complies with labeling
requirements, and Hale failed to state any facts to rebut that presumption.
Fourth, Metrex asserted that the sophisticated-user doctrine foreclosed its lia-
bility as a matter of law.

       The court granted Metrex’s motion in a one-paragraph order. It held
that Hale’s failure-to-warn claim was preempted by FIFRA; it didn’t reach
Metrex’s other arguments. It severed Hale’s claims against Metrex and certi-
fied its order dismissing those claims as an appealable final judgment.

                                             II.
       Hale contests the judgment on the pleadings. “We review [R]ule 12(c)
dismissals de novo.” Great Plains Tr. Co. v. Morgan Stanley Dean Witter &
Co., 313 F.3d 305, 312 (5th Cir. 2002).             “A motion brought pursuant to
Rule 12(c) is designed to dispose of cases where the material facts are not in
dispute and a judgment on the merits can be rendered by looking to the sub-
stance of the pleadings and any judicially noticed facts.” Machete Prods.,
L.L.C. v. Page, 809 F.3d 281, 287 (5th Cir. 2015) (brackets omitted).

       The standard for dismissal under Rule 12(c) is the same as that under
Rule 12(b)(6). Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017). “To survive
a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Id.
Although the district court based its judgment on FIFRA preemption, we “may
affirm the district court’s judgment on any grounds supported by the record.”
United States v. Dunigan, 555 F.3d 501, 508 n.12 (5th Cir. 2009). 1



       1 Hale’s brief references possible claims including misrepresentation, design defect,
strict products liability, and negligent undertaking. The district court concluded that aside
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                                              A.
       FIFRA “pre-empts competing state labeling standards” and “any statu-
tory or common-law rule that would impose a labeling requirement that diver-
ges from those set out in FIFRA and its implementing regulations.” Bates v.
Dow Agrosciences LLC, 544 U.S. 431, 452 (2005).                    “[A] state-law labeling
requirement is not pre-empted by [FIFRA] if it is equivalent to, and fully con-
sistent with, FIFRA’s misbranding provisions.” Id. at 447.

       The district court held that because “Metrex’s labeling of CaviCide was
approved by the [EPA],” any state-law claims “centering around Metrix’s [sic]
failure to provide adequate warnings and instructions on its products are pre-
empted by [FIFRA].”          Although that result—that FIFRA preempts Texas
failure-to-warn claims—may be correct, the reasoning was flawed. That is
because “[t]he proper inquiry” for determining whether a state failure-to-warn
statute is preempted “calls for an examination of the elements of the common-
law duty at issue.” Id. at 445.           This court has not yet had occasion to re-
examine FIFRA in light of Bates. This case—in which neither the pro se
litigant nor her opposition has delineated the state-law elements—presents a
bad vehicle for us to delve into that undeveloped preemption issue. 2 Instead,
we affirm on an alternative basis.

                                              B.
       Hale’s failure-to-warn claim fails as a matter of law because she admits
in her complaint that CaviCide’s label warned against the specific use that
allegedly caused her injuries. “In a failure-to-warn case, the plaintiff must


from failure to warn, dismissal was proper for failure to “state a plausible claim for relief.”
Hale has waived any such claims by failure to brief them or to argue in support.
       2 See Bates, 544 U.S. at 453 (declining to answer, in the first instance, whether FIFRA
preempted the Texas law at issue “[b]ecause [the Court] ha[d] not received sufficient briefing
on this issue”).
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                                        No. 18-20640
show that the warning was defective and that this failure to warn was the
producing cause of the plaintiff’s injury.” 3 Generally, “[t]he adequacy of a
warning is a question of fact[.]” Alm v. Aluminum Co. of Am., 717 S.W.2d 588,
592 (Tex. 1986). “However, if a warning specifically mentions the circum-
stances complained of, then the warning is adequate as a matter of law.” 4 That
makes sense, because an essential element of a failure-to-warn claim is that
“the absence of a warning or instructions renders the product unreasonably
dangerous.” Chandler v. Gene Messer Ford, Inc., 81 S.W.3d 493, 504 (Tex.
App.―Eastland 2002, pet. denied).

       Hale concedes that “the use of CaviCide[] to disinfect dentures or any
surface or instrument that contacts mucous membranes is prohibited by the
CaviCide[] label.” Moreover, Hale maintains that her injuries were caused by
Seder’s “failure to follow manufacturer’s instructions clearly printed on the
label for the proper use of CaviCide.” 5 Because Hale pleaded that the label
expressly warned against the use that caused her injuries, the warning was
adequate as a matter of law. 6 The judgment of dismissal is AFFIRMED.



       3 Rolen v. Burroughs Wellcome Co., 856 S.W.2d 607, 609 (Tex. App.―Waco 1993, writ
denied) (citing Tech. Chem. Co. v. Jacobs, 480 S.W.2d 602, 605 (Tex. 1972)).
       4  Seifried v. Hygenic Corp., 410 S.W.3d 427, 433 (Tex. App.―Houston [1st Dist.] 2013,
no pet.); see, e.g., id. at 434 (“Because Hygenic notified [the relevant parties] of the potential
injury to the user if he used the band precisely in the manner described, the warning was
adequate as a matter of law.”); Rolen, 856 S.W.2d at 609 (“In the instant case, the warning
details the potential dangers and results of an improper prescription.”).
       5 Hale also pleaded that the CaviCide label states, “This product is not to be used . . .
on any surface or instrument that (1) is introduced directly into the human body, either into
or in contact with the bloodstream or normally sterile areas of the body, or (2) contacts intact
mucous membranes[.]”
       6  Hale observes that a previous version of the CaviCide label included “dentures” on
the list of approved uses. She admits, however, that Metrex has since edited to remove den-
ures from that list. Hale not allege that the previous version was used by her dentist, and
she does not dispute Metrex’s contention that the label at issue here is the 2011 version,
which does not include dentures among the approved uses.
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