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admitting expert opinion testimony where expert had "considered and discredited other potential environmental sources of causation and recognized that he could not rule out all other potential causes or conclude that the carpet definitively caused the plaintiffs' injuries"
Summary of this case from Pagliaroni v. Mastic Home Exteriors, Inc.Opinion
No. 95-30234-FHF
March 31, 2000
MEMORANDUM AND ORDER
I. INTRODUCTION
In March 1991, plaintiffs Dennis Anello and Jill Ullian moved into their newly-built home in Montague, Massachusetts, which contained new carpet manufactured by Shaw Industries, Inc. ("Shaw"). Both plaintiffs experienced a decline in their health by the fall of 1991, and noticed an overpowering new-carpet smell that lingered in their house until at least October of 1992. The plaintiffs' complaint alleges that the abnormally persistent new-carpet smell indicated that the rug was off-gassing toxic chemicals which, in turn, caused them injury. The Court now considers defendant's motion for summary judgment and motions in limine to exclude any testimony concerning Multiple Chemical Sensitivity ("MCS") and the testimony of plaintiffs' experts: Dr. Kenneth P. Reed, Dr. Wayne K. Way, Dr. Edward J. Calabrese, and Dr. Thomas J. Deters.
II. STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and a fact is "material" if it is one which "might affect the outcome of the suit under the governing law." Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90 (1st Cir.), cert. denied, 511 U.S. 1126 (1994). Moreover, summary judgment may be appropriate "[e]ven in cases where elusive concepts such as motive or intent are at issue. . . if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
"[T]o defeat a properly supported motion for summary judgment, the nonmoving party must establish a trial-worthy issue by presenting 'enough competent evidence to enable a finding favorable to the nonmoving party.'" LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir.) (quoting Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993)), cert. denied, 511 U.S. 1018 (1994). In deciding a motion for summary judgment, the Court "state[s] the facts in the light most favorable to the nonmoving party, indulging all inferences in that party's favor." Dykes v. Depuy, Inc., 140 F.3d 31, 33 (1st Cir. 1998).
III. FACTUAL AND PROCEDURAL HISTORY
Plaintiffs moved into their newly-constructed house in Montague, Massachusetts in March of 1991. They selected carpet, manufactured by Shaw Industries, Inc., to cover most of the floors in the house. The plaintiffs and visitors to the house noticed a pronounced odor to the house that they described as that of new carpet. This odor lingered until at least the fall of 1992. Shaw and carpet industry documents establish that normal new carpet loses any pronounced odor within five to seven days.
Jill Ullian had suffered from some health problems before moving into the new house, including diagnosis of Chronic Fatigue Immune Dysfunction Syndrome ("CFIDS") in 1990. She claims, however, that in the fall of 1991, she experienced a flare-up of her CFIDS symptoms, including memory and concentration problems, fatigue, headaches, muscle weakness and stiffness. She also claims that she developed new sensitivities to chemicals and additional auto-immune dysfunction. She attributes the worsening of her symptoms and new sensitivities to the carpet emissions.
Before moving into the house, Dennis Anello was active and healthy. He had attained a second degree black belt in karate and enjoyed hiking, bicycling, and practicing yoga. In the fall of 1991, and perhaps a bit earlier, Anello began to experience fatigue, headaches, unexplained bouts of depression and irritability, chronic back pain, mental confusion, occasional reversing of syllables when he spoke, insomnia, and skin problems. He noticed that these symptoms improved when he was away from the house. Around Christmas of 1991, Anello developed a cough and burning sensation in his lungs which persisted until May of 1992, except for a one-week period in January when he traveled to Florida. His symptoms recurred when he returned home. At some point, he developed an itchy skin rash and, then in June of 1993, his dermatologist diagnosed a growth that had recently developed on his back as Lichen Planus.
After moving out of the house, both plaintiffs noted lessening of some of their symptoms. Anello noted a decrease in his symptoms of irritability, depression, anger, headache and lightheadedness, though his general health continued to decline. Both plaintiffs claim that exposure to certain products such as perfumes, fragrances and auto exhaust caused them to feel sick. The plaintiffs conducted tests for formaldehyde, radon, and carbon monoxide in an attempt to pinpoint the cause of their health difficulties. They finally concluded that the carpet was to blame for their problems and moved out of the house in October of 1992. Anello and Ullian both claim that, even after moving out of the house, merely sorting through papers and fabrics from the Montague house caused them to become dizzy and mentally confused. Because the plaintiffs complain of similar injuries, the Court will treat both plaintiffs' symptoms jointly for the purposes of this motion.
The parties having completed discovery, defendant now moves to exclude plaintiffs' experts and for summary judgment.
IV. DISCUSSION
Defendant's motion for summary judgment depends to a large extent on the admissibility of plaintiffs' experts' testimony. Consequently, the Court begins its analysis here.
A. Dr. Reed's Expert Testimony
Defendant seeks to exclude Dr. Reed's testimony claiming it does not pass the reliability criteria for scientific evidence as set out inDaubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-95 (1993) ("Daubert").
The admissibility of scientific evidence hinges on a "preliminary assessment of whether the reasoning or methodology properly can be applied to the facts in issue." Id. at 592-93. In other words, do the underlying principles and methodology of the submission convince the Court that the evidence is both reliable and relevant? See id. at 595. The Court's evaluation of reliability is flexible and considers such factors as the theory's error rates and whether the suggested theory has been tested, peer reviewed, and gained general acceptance in the relevant scientific community. See id. at 593-94. An expert need only have good grounds for his opinion, and his testimony is admissible even if there are flaws in his methods and "better grounds for some alternative conclusion." In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 744 (3rd Cir. 1994).
1. Back-Extrapolation
The Court first examines Dr. Reed's back-extrapolation theory. At least a year-and-a-half after the carpet had been installed, Dr. Reed conducted tests on carpet samples taken from the plaintiffs' house to determine the identity and quantity of any toxins originating from the carpet. He then plugged the results into a first-order-kinetics equation to mathematically approximate the original concentration of toxins to which the plaintiffs might have been exposed.
Unfortunately for the plaintiffs, the only basis for Dr. Reed's first-order-kinetics decay model comes from hypothetical ventilation problems from a text book and short-term decay studies testing the rate at which Volatile Organic Compounds ("VOCs") off-gassed from carpet during the first twelve hours after installation. Dr. Reed provides no support for his claim that this first-order-kinetics equation continues to apply to long-term off-gassing of VOCs from carpet such as the year to year-and-a-half time frame in this case. For example, he fails to provide studies testing long-term off-gassing rates from carpet, peer review or examination of long-term off-gassing studies on carpet, error rates for long-term off-gassing, or evidence of general acceptance of first-order kinetics as a reliable mathematical model to approximate long-term VOC off-gassing from carpet. The lack of basis for applying a first-order-kinetics model to the system at issue reveals that Dr. Reed's mathematical back-extrapolation calculations are mere speculation and conjecture. Consequently, the results are insufficiently reliable for consideration by a fact-finder. The Court concludes that due to lack of reliability, Dr. Reed's back-extrapolation evidence is inadmissible under both Fed R. Evid. 702 and Daubert. Accordingly, any evidence from Dr. Reed and plaintiffs' other experts relying on the back-extrapolation evidence is also inadmissible.
2. Small-Chamber Tests and Analytical Chemistry
Shaw next objects to Dr. Reed's analytical chemistry and the small-chamber method he used to qualify and quantify products off-gassed from the Anello carpet. Shaw maintains that Dr. Reed's use of computer matches, as opposed to known samples, to identify his gas chromatograph/mass spectrometer readings rendered these readings unreliable. Shaw also claims that Reed's small-chamber test method using an inert paint can fails to accurately approximate conditions in the plaintiffs' house. It also claims that Dr. Reed's use of a plastic badge to collect the off-gassed VOCs allowed contamination of the sample.
Shaw's objections to Dr. Reed's small-chamber testing method and analytical chemistry methods fail to convince the Court that the results are unreliable. Rather, the Court views Shaw's objections to be a function of both the weight and credibility of the evidence. As a result, Dr. Reed's quantitative and qualitative measurements are admissible, subject of course to cross-examination by defendant. Although Shaw now objects to Dr. Reed's small-chamber laboratory tests, it suggested this method to measure carpet emissions in another unrelated case. See Heller v. Shaw Industries, Inc., 167 F.3d 146, 160 (3rd Cir. 1999). Shaw cannot have it both ways.
3. General Off-Gassing Principles
Dr. Reed may also offer testimony on the general characteristics and chemistry of off-gassing including, but not limited to, explaining the principles of stratification, vapor pressure, steady state, and the theories of limiting concentrations and exponential decay for short-term off-gassing, as all of these theories are generally accepted. He may even offer his opinion that at some earlier time the concentrations of chemicals off-gassed from the Shaw carpet were higher than the quantities he measured one-and-a-half years later, so long as he explains the basis for that opinion. The jury will determine the proper credibility and weight to assign the evidence at trial. As already stated, however, Dr. Reed may not offer to quantify the specific levels to which the plaintiffs were exposed.
B. Dr. Way's Expert Testimony
Dr. Way's evidence consisted of heating a carpet sample in a glass tube to maximize the chemicals it produced, then analyzing the air in the tube to identify the chemicals that the carpet off-gassed. Dr. Way's heating the carpet to such high temperatures, however, renders any resulting analysis irrelevant to this case because these results fail to provide an accurate representation of what the carpet might have off-gassed at the temperatures in the plaintiffs' house. Because Dr. Way's test is irrelevant to this case, his testimony and test results must be excluded. See Daubert, 509 U.S. at 595.
C. Dr. Calabrese's Expert Testimony
Shaw contends next that Dr. Edward J. Calabrese's testimony on causation is unreliable and should be excluded under Daubert. While Shaw advances myriad reasons to exclude Dr. Calabrese's testimony, the essence of its argument lies in its attack on biological plausibility.
Dr. Calabrese determined causation here by asking three questions: 1) was causation biologically plausible; 2) was causation temporally plausible; and 3) was causation statistically plausible? Biological plausibility, which the Court views as the essence of the causation issue here, translates to: Were the plaintiffs exposed to chemicals from their carpet and can these chemicals cause their symptoms?
While Dr. Calabrese was unable to cite to any substantial studies connecting the chemicals from the carpet to the symptoms the plaintiffs suffered, this failure is not fatal to his testimony. See Heller, 167 F.3d at 155-56, 160 n. 11 (unequivocal studies not required for "qualified expert [to] opine that a product emits a certain compound or causes a certain irritation, if the basis for the opinion is otherwise reliable and scientifically valid."). The very essence of expert testimony and any "battle of the experts" arises from the inherent uncertainty in these types of cases. See Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998) (reversing exclusion of expert testimony). This uncertainty leads to the very need for the jury to determine the facts from the differing and often completely opposite opinions held by equally qualified experts from the same field testifying in a single case. See id. An expert need only have good grounds for his opinion, and the opinion must be helpful to the jury. See id.; Fed.R.Evid. 702.
Dr. Calabrese relied on the plaintiffs' medical records, reports of the abnormal length of time that the "new carpet" smell persisted in the plaintiffs' house, and several documents, including some from carpet industry sources suggesting links between carpet emissions and numerous health problems. Dr. Calabrese's deposition and affidavit clearly indicate his skepticism and his lack of reliance on Dr. Reed's back-extrapolation data. In addition, in his deposition and affidavit, Dr. Calabrese considered and discredited other potential environmental sources of causation and recognized that he could not rule out all other potential causes or conclude that the carpet definitively caused the plaintiffs' injuries. See Heller, 167 F.3d at 156 (inability to rule out every alternative cause does not require exclusion of causation testimony); Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248, 253 (1st Cir. 1998) (reversing exclusion of expert alternate causation testimony because "little in diagnosis is certain").
Dr. Calabrese's opinion is simply that based on his scientific background and the record presented to him, the Shaw carpet caused plaintiffs' injuries. Cf. Heller, 167 F.3d at 160 n.ll ("the record can be read to support [the expert's] claim that carpeting such as Shaw's can emit some of the VOCs detected in the Heller home and may cause illnesses similar to those suffered by Heller after prolonged exposure"). As a result, the Court concludes that Dr. Calabrese's testimony is based on good grounds, helpful to the jury, and admissible under Fed.R.Evid. 702 and Daubert. While the Court views Dr. Calabrese's causation testimony as shaky, "it should be tested by the adversary Process — competing expert testimony and active cross-examination — rather than excluded from the jurors' scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its inadequacies." Ruiz-Troche, 161 F.3d at 85 (citing Daubert).
D. Dr. Deters' Expert Testimony
Defendant moves to exclude the testimony of Thomas J. Deters, Ph.D., claiming that his diagnosis of cognitive deficits caused by chemicals from defendant's carpet is inadmissible both under Daubert and as an attempt to "dodge the legal bullet" of precedent excluding testimony of MCS. The Court addresses defendant's Daubert argument immediately below and the MCS argument in conjunction with the Court's discussion concerning the admission of MCS testimony.
Defendant claims that Dr. Deters' testimony is not reliable underDaubert because he bases his causation opinion on Dr. Calabrese's report and provides no baseline with which to compare his results. Defendant also claims that Dr. Deters' testimony lacks objective medical evidence to corroborate his neuropsychological tests, and that Dr. Deters' tests rely on the plaintiffs' subjective answers that are susceptible to malingering.
As the Court has concluded that Dr. Calabrese's testimony on causation is admissible, Dr. Deters' reliance on that opinion does not preclude admission of his testimony. Dr. Deters' lack of baseline data and lack of objective medical evidence to corroborate his opinion may decrease the weight and credibility of his testimony, but do not render his opinion or methodology unreliable. The same is true of his reliance on the plaintiffs' subjective responses to his tests. It is for the jury, rather than the Court, to decide the credibility and the weight to assign the evidence. Because the defendant's objections to Dr. Deters' testimony are functions of the weight and credibility of the evidence, as opposed to its reliability, the Court concludes that Daubert does not render Dr. Deters' testimony inadmissible.
E. Exclusion of MCS Testimony
Shaw moves to exclude all evidence related to MCS on the ground that the diagnosis fails the scientific standards established by Fed.R.Evid. 702 and Daubert. Shaw also moves to exclude the testimony by plaintiffs' treating physicians, Dr. Barry Elson and Dr. Howard Hu, on the ground that they diagnosed plaintiffs with MCS.
MCS is a symptom-based diagnostic label attached to a patient who suffers from multiple symptoms generally suggested to result from a depression in the patient's immune system caused by exposure to some type of environmental insult, and leading to "'hypersensitiv[ity] to other chemicals and naturally occurring substances.'" Coffin v. Orkin Exterminating Co., Inc., 20 F. Supp.2d 107, 109 (D. Me. 1998) (quoting Federal Judicial Center, Reference Manual on Scientific Evidence 73 (1994)). Given that federal courts thus far have uniformly rejected the diagnosis and expert testimony of MCS for lack of reliability underDaubert, this Court finds additional commentary unnecessary. See, e.g. id. at 110-11 (string cite of cases rejecting MCS testimony). As a result, the Court excludes any testimony with regards to MCS.
The Court's ruling, however, precludes only reference or testimony pertaining to MCS or other theories suggesting any relation between exposure to the defendant's carpet and subsequent hypersensitivity to other chemicals. Significantly, the plaintiffs and their experts may testify about any other specific physical limitations or injuries they attribute to exposure to the defendant's carpet including, but not limited to, cognitive deficits, breathing problems, nausea, dizziness, and malaise. The thrust of the Court's ruling is to prevent any speculative testimony of hypersensitization of the plaintiffs' immune systems to other chemicals from exposure to chemicals allegedly discharged from defendant's carpet. The Court will not adopt defendant's request to exclude plaintiffs' experts, Dr. Elson and Dr. Hu, or their testimony of the plaintiffs' various other injuries, even though they linked or grouped these symptoms together to form the basis for a diagnosis of MCS. The Court adopts this ruling because the grouping together of reported symptoms to conclude the disfavored diagnosis of MCS does not detract from the existence of the individual symptoms.
F. Summary Judgment
Despite defendant's claims to the contrary, material issues of fact remain in dispute, rendering summary judgment inappropriate. The plaintiffs produce evidence of defect in the defendant's carpet by way of their affidavit and deposition testimony that a strong new carpet smell permeated the house for eighteen months after installation, whereas defendant maintains that normally this odor dissipates within approximately one week. From the extended duration and intensity of the odor, a jury could infer not only exposure to chemicals off-gassed from the carpet but also exposure to levels substantially higher than normal. Plaintiffs produce evidence of causation through the diagnosis of their treating physicians, Dr. Hu and Dr. Elson, and their toxicologist, Dr. Calabrese, as well as scientific papers, internal documents from Shaw, and anecdotal reports of carpet off-gassing chemicals linked to symptoms similar to the plaintiffs'. This testimony, coupled with the plaintiffs' reports of the new-carpet odor, serve as sufficient evidentiary basis to survive summary judgment on causation. See Heller, 167 F.3d at 157 ("even absent hard evidence of the level of exposure to the chemical in question, a medical expert could offer an opinion that the chemical caused plaintiff's illness") Plaintiffs also have offered evidence of injury through their own testimony and expert testimony discussed above detailing, among many other symptoms, a decrease in cognitive function. The Court concludes, therefore, that plaintiffs have provided evidence from which a reasonable jury could infer defect, injury, and causation. Accordingly, summary judgment is not appropriate.
Defendant also claims that it is entitled to summary judgment on each count of the plaintiffs' complaint. Defendant first claims that it is entitled to summary judgment on the Magnuson-Moss Act claim in Count I of plaintiffs' complaint. Plaintiffs concede that the Act does not create a cause of action for personal injuries, and consequently, defendant is entitled to summary judgment on Count I to the extent it alleges violations of the Magnuson-Moss Act. The Court, however, reads the plaintiffs' complaint also to allege a general common law breach of the implied warranty of merchantability claim that survives defendant's motion for summary judgment.
Defendant second moves for summary judgment on plaintiffs' failure to warn claim in Count II on grounds that they have failed to establish either defect or knowledge of defective condition. Plaintiffs produce internal Shaw documents, however, showing that Shaw knew that normal carpet off-gassed potentially irritating chemicals soon after installation. In addition, Shaw knew that it produced some defective carpet that off-gassed chemicals at a much higher rate than normal, but did not place warnings on any of its carpet. A reasonable jury could infer from plaintiffs' evidence of long-term odor and Dr. Reed's chemical analysis that the carpet in plaintiffs' house fell into the category of defective carpet about which Shaw knew, subsequently causing them injury. Shaw is, consequently, not entitled to summary judgment on Count II.
Defendant third moves for summary judgment on Count III, negligent and intentional misrepresentation. Plaintiffs have failed to establish evidence of Shaw's misrepresentations about the safety of their carpet. As a result, the Court concludes that Shaw is entitled to summary judgment on Count III.
As plaintiffs produce evidence from which a reasonable jury could find defect in the carpet Shaw manufactured, the Court denies Shaw's motion for summary judgment on plaintiffs' claim of defective design or manufacture in Count IV.
Given the evidence of Shaw's knowledge of carpet off-gassing, the Court cannot conclude that plaintiffs fail to produce evidence of any unfair or deceptive business practices by Shaw in violation of Mass. Gen. Laws ch. 93A, § 9. The Court concludes that summary judgment is inappropriate on Counts V and VIII at this time, and reserves this issue for reconsideration upon the close of the plaintiffs' evidence.
Plaintiffs' complaint alleges two Count VIIs and thus the Court treats the second Count VII as Count VIII.
Because the plaintiffs do not respond to defendant's motion for summary judgment on Count VI, medical monitoring, and the Court views this claim as an aspect of plaintiffs' damages, as opposed to an independent cause of action, the Court concludes that Shaw is entitled to summary judgment on this count.
V. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART defendant's motion in limine to exclude testimony of Kenneth P. Reed and Wayne K. Way (Doc. No. 67) and motion in limine to exclude evidence of MCS and related testimony (Doc. No. 64). The Court DENIES defendant's motions in limine to exclude testimony of Edward J. Calabrese (Doc. No. 65) and testimony of Thomas J. Deters (Doc. No. 68).
The Court GRANTS IN PART and DENIES IN PART defendant's motion for summary judgment (Doc. No. 62). The Court grants summary judgment on Count I, only to the extent it seeks recovery under the Magnuson-Moss Act, on Count III, and on Count VI. The Court denies summary judgment on all remaining counts.
The Court reserves determination of judgment on Mass. Gen. Laws ch. 93A until after the close of plaintiffs' evidence. Accordingly, the parties are ordered to rebrief liability under Mass. Gen. Laws ch. 93A, § 9, devoting their attention specifically to the issue of failure to disclose the hazards of carpeting as alleged in Counts V and VIII combined.
It is So Ordered.