Goeb v. Tharaldson

• Decision Date: 17 August 2000
• Docket Number: No. CX-98-2275.,CX-98-2275.
• Citation: 615 N.W.2d 800
• Parties: Lawrence C. GOEB, et al., petitioners, Appellants, v. Timothy THARALDSON, d/b/a Duluth Quality Pest Control, Respondent, Dow Chemical Company, d/b/a DowElanco, Respondent, Elliot Silberman, plaintiff intervenor, Respondent.
• Court: Minnesota Supreme Court

615 N.W.2d 800

Lawrence C. GOEB, et al., petitioners, Appellants, v. Timothy THARALDSON, d/b/a Duluth Quality Pest Control, Respondent, Dow Chemical Company, d/b/a DowElanco, Respondent, Elliot Silberman, plaintiff intervenor, Respondent.

No. CX-98-2275.

Supreme Court of Minnesota.

August 17, 2000.

Mark W. Gehan, Matthew A. Slaven, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, for appellants.

Mark S. Olson, Oppenheimer, Wolff & Donnelly, Minneapolis, Robert D. MacGill, Joseph G. Eaton, Barnes & Thornburg, Indianapolis, IN, for respondent DowElanco.

Nicholas Ostapenko, Johnson, Killen, Thibodeau & Sieler, Duluth, for respondent Timothy Tharaldson.

Earl Singh, Minneapolis, for intervenor Elliott Silberman.

Amicus curiae Product Liability Advisory Council, Inc. Wayne D. Struble, Bowman & Brooke, L.L.P., Minneapolis, Mary A. Wells, L. Michael Brooks, Jr., Wells, Anderson, & Race L.L.C., Denver, CO, Hugh F. Young, Jr., Product Liability Advisory Council, Reston, VA.

Amicus curiae Peter N. Thompson, St. Paul.

Amicus curiae Defense Research Instute and Minnesota Defense Lawyers Association Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, P.A., William M. Hart, Meagher & Geer, Minneapolis.

Amicus curiae Minnesota Trial Lawyers Association Wilbur W. Fluegel, Minneapolis.

Heard, considered, and decided by the court en banc.

OPINION

BLATZ, Chief Justice.

Appellants Lawrence and Diane Goeb brought this action against Respondents Timothy Tharaldson d/b/a Duluth Quality Pest Control (Tharaldson), and Dow Chemical Company, d/b/a DowElanco (Dow), alleging that they and their son were permanently injured by their exposure to the insecticide Dursban. Dow moved to exclude several of appellants' expert witnesses, and moved for summary judgment as to the issue of medical causation. In granting the motions, the district court excluded appellants' experts because they used methodology that was not generally accepted under Frye v. United States, 293 F. 1013 (D.C.Cir.1923), nor reliable under either our decision in State v. Mack, 292 N.W.2d 764, 768-69, 772 (Minn. 1980), or the United States Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Because without these experts appellants could not prove their exposure to Dursban caused their claimed illnesses, the district court granted Dow summary judgment. The Minnesota Court of Appeals affirmed. We also affirm, holding that Frye-Mack is the standard to be used to determine the admissibility of novel scientific evidence, and that the district court did not abuse its discretion in excluding appellants' expert testimony for lack of reliability under the Mack prong. In addition, we affirm the grant of partial summary judgment to Dow on appellants' claims of inadequate warnings and instructions on the Dursban label because those claims are preempted by federal law.

On March 31, 1990, respondent Tharaldson applied various insecticides to control an ant infestation at an uninhabited rental home owned by Intervenor Elliot Silberman. One of the insecticides was Dursban, which is manufactured by Dow and contains the active ingredient chlorpyrifos.¹ At noon on Monday, April 2, 1990, appellants arrived at the house to begin the process of moving in. When Lawrence opened the door, he immediately noticed "a strong pungent, chemical smell" that caused his nose and throat to burn. Silberman had told appellants they might notice an odor and to open the doors and windows to get rid of it. He also told appellants they would find a light dust throughout the house that would need to be cleaned up with soap and water. The appellants did as he instructed, and began cleaning the house in preparation for their move later that week.

At about 10 p.m. that night, Diane called Lawrence at work. She told him that she had a bad headache, diarrhea, and nausea, and was concerned her symptoms might be related to the chemical odor in the house. Lawrence contacted Tharaldson within a day or two and asked whether the insecticides applied in the house could be making Diane ill. Tharaldson told Lawrence that he did not think any of the insecticides he used should be causing Diane's problems. Tharaldson called Dow to verify what he had told appellants, and Dow agreed that appellants should not be having any problems due to the Dursban. Lawrence then contacted Dow directly and was also reassured by a Dow representative that Dursban should not be causing Diane's symptoms. The Dow representative encouraged appellants to continue airing out the house to rid it of the chemical odor.

Appellants began living in the house on Thursday, April 5, 1990, even though the odor persisted. Lawrence continued to experience a burning sensation in his throat. A week later, he noticed that his sinuses were irritated and that he had a nasal discharge. After several weeks of living in the house, Lawrence began to feel "light-headed, confused, very forgetful, off balance, uncoordinated," noticed he had a "terrible memory, [and was] sometimes incoherent," and had difficulty swallowing, a sore throat, joint pain, muscle weakness, acne, and a ringing sensation in his ears. Diane still experienced headaches, nausea, diarrhea, and intestinal cramping, and their son had diarrhea and was listless. Lawrence called Dow a second time on April 25 and asked whether his symptoms could be attributed to the Dursban. This time the Dow representative recommended that Lawrence be seen by a doctor and have a cholinesterase test.² Lawrence went to the hospital emergency room the next day for testing, and Diane had the test a few days later. Both tests came back within expected normal ranges.³ Notwithstanding these results, appellants immediately moved out of the house out of concern for their health. They also discarded clothing and other items of personal property that seemed to aggravate their symptoms. The testimony of others who entered the house following the insecticide application, including a neighbor, Silberman, and professional cleaners, echoed appellants' complaints about the strong chemical odor, burning sensation in the throat, and headaches.

On May 3, 1990, appellants contacted the St. Louis County Health Department, which initiated an investigation. On May 17, the health department epidemiologist and two Dow representatives went to the house and collected air samples to test for chlorpyrifos. They found air concentrations of 6.1 micrograms chlorpyrifos per cubic meter of air in the kitchen and 9.5 micrograms chlorpyrifos per cubic meter of air in the bedroom. An undated county health department memo summarizing the results of the investigation stated:

The National Academy of Sciences recommends a maximum concentration of 10 [micrograms chlorpyrifos per cubic meter of air] for continuous 24 hour exposure for the general population. Since [chlorpyrifos] normally clears quickly from the air following application, the Health Department feels it is likely that the actual concentration greatly exceeded this guideline the first few weeks following application. Given this, the dose/response illness pattern and the compatibility of the symptoms with organophosphate poisoning, the Health Department believes exposure to the [chlorpyrifos] is a reasonable explanation for the family's illness while living in the house.

The health department memo concluded, however, by stating that:

The department cannot attribute the [chlorpyrifos] exposure to the continuing illness experienced by the family since moving out of the house. Studies indicate that the half life for the chemical in the body is 27 hours. Given this, it does not seem possible that 15-20 minute daily periods in the house or contact with the items removed from the house would be sufficient to prevent ongoing declines in the tissue concentration of [chlorpyrifos] in the affected individuals.

In September 1990, air samples were again collected and analyzed at the house, this time by an independent researcher. The chlorpyrifos air concentrations reported at that time were 6.1 micrograms chlorpyrifos per cubic meter of air in the kitchen and 4.0 micrograms chlorpyrifos per cubic meter of air in the family room.⁴

Appellants commenced this action against Tharaldson in September 1992, alleging breach of express and implied warranties, negligent application of insecticides, and application of a defective and unreasonably unsafe product. Silberman also filed a complaint and his motion to intervene was granted in June 1993. In April 1994, appellants amended their complaint for the first time to add Dow as a defendant, and add claims for negligent manufacture, marketing, and sale, and failure to provide adequate warnings and instructions for use. The complaint was amended a second time in June 1994 to add a claim for misrepresentations by Dow. Dow moved for partial summary judgment, arguing that claims regarding warnings and label instructions were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 (1994), which requires manufacturers to register pesticides with the U.S. Environmental Protection Agency (EPA) and subjects them to specific regulations regarding the labeling and packaging of pesticides. In September 1994, the district court granted Dow partial summary judgment, ruling that the Goebs' claims of inadequate warnings and label instructions were preempted by FIFRA.

While the district court considered these and other issues, the parties proceeded with discovery. Appellants identified two expert witnesses who would testify that appellants have permanent damage to their health caused by their exposure to Dursban: Dr. Janette Sherman and Dr. Kaye Kilburn. Dr. Sherman, a medical doctor for over 30 years, is licensed to practice in four states and is board eligible in internal medicine. Prior to medical school, she worked as a chemist and biologist in several...