Alder v. Bayer Corp., AGFA Div.

• Decision Date: 26 November 2002
• Docket Number: No. 20000937.,20000937.
• Citation: 61 P.3d 1068,2002 UT 115
• Parties: Leslie ALDER, aka Leslie Roberts, and Jackie Jones, Plaintiffs and Appellants, v. BAYER CORPORATION, AGFA DIVISION, Defendant and Appellee.
• Court: Utah Supreme Court

61 P.3d 1068

2002 UT 115

Leslie ALDER, aka Leslie Roberts, and Jackie Jones, Plaintiffs and Appellants, v. BAYER CORPORATION, AGFA DIVISION, Defendant and Appellee.

No. 20000937.

Supreme Court of Utah.

November 26, 2002.

Peter C. Collins, Jacquelynn D. Carmichael, Salt Lake City, for plaintiffs.

Gordon L. Roberts, David M. Bennion, Salt Lake City, and Stephen G. Traflet, Morristown, New Jersey, for defendant.

HOWE, Justice:

INTRODUCTION

¶ 1 Plaintiffs Leslie Alder, aka Leslie Roberts, and Jackie Jones (Technicians), former radiography technicians at LDS Hospital in Salt Lake City, Utah, brought this action against defendant Bayer Corporation's AGFA division, alleging illness from chemical exposure caused by AGFA's negligent installation and servicing of its x-ray processing machine. The trial court excluded Technicians' expert testimony relative to the cause of their alleged illness and granted summary judgment in favor of AGFA. Technicians appeal.

FACTS

¶ 2 Sometime prior to March 1993, AGFA's field engineer, Tim Murray, installed AGFA's Curix Compact processing machine in LDS Hospital's newly-constructed mammography suite. The machine had been in operation for several years in other locations within the hospital. AGFA's installation guidelines specified a minimum air exchange rate of between ten and fifteen times the room's air volume per hour. Murray communicated this requirement to the hospital, which was responsible for the ventilation as part of the construction of the new mammography suite. Murray had previously received training regarding the hazards of exposure to chemical fumes from the machine and the necessity for adequate ventilation in rooms where the processor was used. At the time of installation, he expressed concern regarding the adequacy of the new mammography suite's ventilation. However, he did not test the ventilation in the new room. Sometime after the installation, he asked LDS Hospital's chief technologist, Patrick Bendall, if the hospital had tested the ventilation. Murray was told that the hospital maintenance department had checked the room and that the ventilation was adequate.

¶ 3 Technicians Leslie Alder and Jackie Jones had operated the Curix x-ray processing machine in its previous locations without experiencing any unusual illnesses. However, after the machine was installed in the mammography suite, Jones complained to Murray that she had lost her voice and experienced tightness in her chest. Hospital minutes for April 12, 1995, stated: "Jackie and Leslie work 10 hour days and are constantly around the processor and suspect the chemicals in the processor are causing the symptoms." Three other individuals also reported symptoms in connection with working in the mammography suite.

¶ 4 Murray became aware that the ceiling vent in the new room was not functioning properly and "wasn't exhausting a lot of air." He also acknowledged that the AGFA installation guidelines required him to "be concerned with the ventilation in the room[s]" where the processors were installed. However, he made no tests of the machine or the ventilation system, even when instructed to do so by AGFA's product specialist George Cervenka. In March of 1995, at the hospital's request, Murray installed AGFA's vent kit, consisting of piping that connected to the machine's hose and ran up the ceiling vent. However, in spite of his concern that inadequate ventilation was causing Technicians' health problems, Murray again did not test the ventilation and did not inquire at that time whether the hospital had recently tested the ventilation of the room, nor did he recall suggesting better ventilation to anyone at the hospital. Bendall testified¹ that AGFA was "in the loop" from the time Technicians made their first complaints regarding the room's ventilation and their own health problems. Bendall further testified that he relied on the expertise of AGFA's people regarding safely ventilating the workplace.

¶ 5 Ultimately, Technicians' symptoms included loss of voice, watery eyes, red skin, nausea, muscle aches, dizziness, joint pain, earaches, runny nose, confusion, memory loss, slow healing, and severe fatigue. They sought treatment from a number of physicians, who found no evidence of malingering² and variously diagnosed them with multiple chemical sensitivities (MCS),³ cognitive impairment, toxic encephalopathy, immune toxicity, chronic fatigue, and symptoms of fibromyalgia.⁴

¶ 6 Technicians were referred by their employer to Anthony Suruda, M.D., M.P.H., for examination and determination of occupational exposure to chemicals. Dr. Suruda found that Technicians had become sensitized to multiple chemicals, diagnosed them with MCS, and recommended that each of them avoid working in any environment containing glutaraldehyde. He testified that glutaraldehyde is a known irritant and that when he visited the mammography suite, he believed that he smelled a glutaraldehyde odor over the processor.

¶ 7 Dr. Deborah Robinson,⁵ Alder's primary care physician, conducted a differential diagnosis to rule out alternative explanations for Alder's symptoms. She diagnosed Alder with chronic fatigue syndrome⁶ (CFS) and MCS in association with fibromyalgia. Dr. Robinson further testified that CFS has only become a recognized diagnosis within the last five to ten years. She also described fibromyalgia as a rheumatological diagnosis defined by a constellation of symptoms but without specific serological abnormalities for a laboratory diagnosis. Dr. Robinson testified that she believed to a reasonable medical probability that Ms. Alder's chronic fatigue syndrome was caused by chemical exposure in the workplace at LDS Hospital in the poorly ventilated space that had been described to her. In addressing the distinction between MCS and CFS, she stated that they sometimes, but not always, coexist and that thirty to forty percent of people with one condition also suffer with the other.

¶ 8 After analyzing the results of neuropsychological tests administered elsewhere, Dr. Robinson concluded that Alder "was very functional, and now she's not as functional. There are demonstrable abnormalities in her neuropsychometric testing that would suggest that she would have difficulty in performing tasks that she could previously do." In Dr. Robinson's opinion, Alder was disabled both because of her intolerance to chemical exposure and because of daily pain and fatigue. Dr. Robinson further testified that "[c]ertainly the chemical smell sensitivity and the basic symptoms of her chronic fatigue had an onset at the time of her exposure." She answered "I believe so," to the question "[d]oes the testing by itself indicate to a reasonable degree of medical probability that Leslie Alder suffered some form of chemical insult?" Dr. Robinson explained that even in the absence of a defined biological pathway for MCS and CFS, it can be concluded that these abnormalities occur in "association[] with certain exposures," and that she could "[d]efinitely" say "that there is a cause and effect connection, all things considered, between [Alder's] exposure in the workplace and [her] symptoms."

¶ 9 Dr. Lucinda Bateman,⁷ Jones' primary physician, has focused on CFS in her practice and writing. Dr. Bateman testified that CFS is a valid disease that can, like fibromyalgia, be caused by chemical exposure. It was her opinion that Jones' symptoms resulted from workplace exposure, based largely on the fact that Jones used the Curix machine for many years without problems and began to be ill shortly after the machine was relocated to the new mammography suite. Dr. Bateman concluded that "if I had to give her a diagnosis, I would call it multiple chemical sensitivity. But I would never say that excludes her from a diagnosis of chronic fatigue." Dr. Bateman observed that those "people familiar with the diagnosis and management of chronic fatigue or fibromyalgia would say those illnesses can also be caused by a chemical exposure."

¶ 10 Dr. Janiece Pompa, Ph.D.,⁸ administered to Jones and evaluated a series of neuropsychological tests. She was prepared to testify regarding this examination, including the standard neuropsychological testing procedures followed. Her expected testimony did not relate specifically to MCS and involved widely accepted procedures. Dr. Pompa found that Jones exhibited significant cognitive deficits of the type typically associated with solvent exposure and noted that "[t]hese include headache, dizziness, fatigue, paresthesia, pain, weakness, and memory disturbance." Dr. Pompa explained that these symptoms can occur in advance of detectable neurological tissue changes and furthermore that "[s]evere exposure is capable of causing dementia, involving deficits in memory, judgment, abstract thought and other cortical functions." She observed that "[i]t is unlikely that [Jones'] complaints constitute a pre-existing condition, as her memory and attentional deficits are so pronounced that she would not have been able to keep a job, much less a supervisory position." Dr. Pompa testified to a reasonable degree of medical probability that the cognitive deficits that she observed in Ms. Jones' testing resulted from chemical exposure suffered in the workplace. Dr. Pompa answered "yes" to the question "[a]re you able to say to a reasonable degree of medical probability that Ms. Jones cognitive deficits were caused by chemical exposure versus depression?" In summary, Dr. Pompa concluded:

At present, Ms. Jones' cognitive deficits would render her unfit for work in her previous position. She could only handle a job with very few attentional and memory requirements, where she would not be required to make independent judgments or solve complex problems, or work quickly with her hands. Her physical problems would limit her employability even further. Ms. Jones may benefit from cognitive rehabilitation to help her learn ways to compensate for her

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