Because I conclude, however, that FIFRA does not preempt such a claim in these circumstances, I respectfully dissent from this aspect of the majority’s opinion. 1 . The printed material on top of the container begins with the following: TO OPEN: PLACE COIN IN GROOVE-PRY AND LIFT LID OFF 2 . See Majority Opinion at p. 249 (rejecting Hawkins’s ”attempt[] to make the distinction that her claim is based not on the label, but on instructions placed on the lid of the container”). 3 . But see Majority Opinion at p. 252 (acknowledging that "the approved instructions and warnings do not specify how the user is to pry the lid off the container”). 4 . See, e.g., Williams v. Ashland Eng’g Co., 45 F.3d 588, 592 n. 7 (1st Cir.), cert. denied, 516 U.S. 807, 116 S.Ct. 51, 133 L.Ed.2d 16 (1995) (<HOLDING>). 5 . See also Avirgan v. Hull, 691 F.Supp.
holding burden of proof is on one asserting an affirmative defense recognizing laches as an affirmative defense recognizing that federal preemption is affirmative defense as to which defendant has burden of proof holding that unless an affirmative defense is established as matter of law defendant bears burden of obtaining jury findings necessary to support defense holding that when congress is silent on the issue of the burden of proof applicable to a common law affirmative defense that does not negate an element of the offense we presume congress intended the defendant to bear the burden of proof of the defense by a preponderance of the evidence