Barnes v. Kerr Corp.
| Decision Date | 11 August 2005 |
| Docket Number | No. 04-5546.,No. 04-5663.,04-5546.,04-5663. |
| Parties | Dr. David E. BARNES, Plaintiff-Appellant/Cross-Appellee, v. THE KERR CORPORATION, Defendant-Appellee/Cross-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: James M. Love, Gassaway & Love, Tulsa, Oklahoma, for Appellant. Michael Zaleski, Quarles & Brady, Madison, Wisconsin, for Appellee. ON BRIEF: James M. Love, Gassaway & Love, Tulsa, Oklahoma, Robert E. Reeves, Law Offices of Robert E. Reeves, Lexington, Kentucky, for Appellant. Michael Zaleski, Quarles & Brady, Madison, Wisconsin, David B. Bartel, Patrick S. Nolan, Quarles & Brady, Milwaukee, Wisconsin, J. Stanley Rogers, Rogers & Duncan, Manchester, Tennessee, for Appellee.
Before: CLAY, GILMAN, and COOK, Circuit Judges.
This is a products liability case brought by David E. Barnes, a practicing dentist, against the Kerr Corporation, a provider of dental amalgams (commonly known as "silver fillings") that contain mercury, copper, tin, and silver. Barnes claims that, during a 13-year period ending in June or July of 1999, he and his staff were exposed to toxic mercury vapors when removing old fillings and inserting new ones, and that Kerr's amalgams are the major source of his alleged mercury poisoning.
In July of 1999, Barnes brought an action against Kerr for negligence, the manufacture and sale of a defectively designed product, the failure to warn, intentional concealment, the failure to disclose a known defective condition, and breach of implied warranty. This action, which was initially brought in a Tennessee trial court, was removed to federal court by Kerr on the basis of diversity of citizenship. Despite holding that the expert testimony offered by Barnes was admissible, the district court granted summary judgment to Kerr, concluding that Barnes had not established that Kerr was responsible for the vast majority of his exposure to mercury and that, in any event, the numerous warnings provided by Kerr were adequate as a matter of law. For the reasons set forth below, we AFFIRM the judgment of the district court.
Barnes began using amalgams in dental school, which he attended from 1982 until 1986. From 1986 until 1989, he was a practicing dentist in the United States Navy and, from 1989 on, he practiced dentistry in Shelbyville, Tennessee. Starting in 1986, when Kerr began manufacturing amalgams, until "June or July of 1999," when Barnes stopped placing amalgam fillings, he claims that he purchased all of his amalgams from Kerr. Barnes resumed using dental amalgams in 2000 "[b]ecause [he] could not continue to practice effectively without placing amalgam fillings," but he used amalgams from a different company.
During the time that Kerr provided the amalgams, Barnes claims that he "used about 3,000 amalgam capsules per year from Kerr." Approximately 700 times per year, Barnes replaced old amalgams, a procedure that entails removing the old filling and inserting a new one. Barnes also placed around 360 crowns per year, a procedure that generally involves the removal of old amalgam fillings. The amalgams produced by Kerr consist of capsules of mercury and metal alloy, which the dentist combines by breaking a thin plastic wall separating the components, and then uses the amalgam as a filling.
As noted by the district court, there are approximately "35 manufacturers of dental mercury, amalgam alloy, and encapsulated dental mercury." But Barnes presented evidence that Kerr's products comprised 46% of the amalgam alloy market in 2003.
Barnes claims that he never received any information from Kerr stating that mixing dental amalgam presents a health risk. The jars in which the capsules were sent, however, bore prominent warning labels. These labels stated, in capital letters, that the product "CONTAIN[ED] METALLIC MERCURY" and featured an image of a skull and crossbones next to the word "POISON." On a chart of different hazards, including flammability, reactivity, and health hazards, the labels warned that metallic mercury presents a "serious" health hazard. The labels also recommend using protective gear such as glasses, gloves, and a facemask when handling the amalgams, and warned that the ingestion of mercury could cause "Neurotoxic/Nephrotoxic effects," that the inhalation of mercury could cause "Bronchiolitis, Pneumonitis, [and] Pulmonary Edema," and that even skin contact with mercury could have harmful effects, including "redness and irritation to [the] eyes and skin."
Furthermore, each jar included an insert with directions and an additional detailed warning. After instructions about how to use the product, the word "WARNING" appears in bold, capital letters, followed by the following paragraph about the dangers of, and appropriate precautions against, mercury exposure:
Alloy amalgam capsule products contain mercury. Since mercury is a potentially hazardous substance, proper care should be taken to prevent exposure to mercury. These preventative measures include the wearing of gloves, good ventilation, the use of an enclosed amalgamator, proper disposal of capsules once they have been activated and used, and the use of HGX or similar-type mercury absorbing chemicals in the event of spillage. Infrequently capsules may leak mercury and, as a consequence, the above precautionary measures should always be utilized.
(Emphasis in original.)
A third warning was included in the Material Safety Data Sheet (MSDS), a regularly updated document that Barnes acknowledged having received from Kerr for as long as he was purchasing Kerr products. The MSDS for the dental amalgam capsules described mercury as a "hazardous ingredient[]" and stated that chronic mercury poisoning could cause "nervous irritability, weakness, tremors, gingivitis, erethism and greying of the lens of the eye." The MSDS also echoed the label's warning that mercury could have "[n]ephrotoxic effects," stating that mercury could "aggravate[][k]idney disorders."
Barnes alleged in his First Amended Complaint that he was "severely injured and afflicted" from exposure to mercury and that he believed that he would be "prevented from attending to his occupational duties in the future as a direct and proximate result of these injuries and because of the need to prevent future exposures to mercury, which could result in further and additional physical and mental injuries." This exposure allegedly came from three main sources. The primary source was "mercury vapor and mercury contained in amalgam particulate inhaled when removing existing amalgam from the teeth of patients." According to Dr. Mark Richardson, Barnes's expert witness, between 81% and 89.3% of Barnes's daily exposure to mercury came from this source. Kerr, however, disputes whether the majority of amalgams that Barnes has removed during his career have been Kerr amalgams.
A second alleged source of exposure was "contaminated office air due to a variety of sources, including mercury released during trituration of capsules, opening of triturated capsules, free mercury that may have leaked during transport, and particulate released into the office air during amalgam removal." Richardson estimated that between 2.5% and 10.9% of Barnes's daily exposure came from this source. As noted by the district court, Kerr argues that much of this exposure could have come from sources other than leaking capsules.
The third source, which Barnes's expert alleged was responsible for 7.5% to 8.2% of Barnes's alleged exposure, was mercury vapor and mercury particulate generated during the placement of new amalgams. Kerr, however, disputes this percentage, noting that because Barnes generally did not use a drill when placing new fillings, he would not have been exposed to mercury particulate during this process.
In July of 1998, a repairman found mercury droplets inside the machine used to combine the capsules, and Barnes allegedly found mercury dust on the floors and countertops in his office. Barnes claimed that the Tennessee Occupational Health and Safety Administration (TOSHA) inspected his office and, even after it had been cleaned thoroughly, TOSHA still found that the office was contaminated. Barnes then "undertook a second, more vigorous clean-up, removing all movable furnishings to the outside, where the items were hosed off and then wiped down," but an industrial hygienist found that 89% of the surfaces in Barnes's office still showed traces of mercury.
This action, which originally included Barnes's wife as a plaintiff in addition to Barnes himself, was initially brought in the Circuit Court for Bedford County, Tennessee. It was removed by Kerr to the United States District Court for the Eastern District of Tennessee on the basis of diversity of citizenship, with Mrs. Barnes no longer appearing as a plaintiff, in August of 1999. Barnes is a resident of Tennessee, whereas Kerr is a Delaware corporation with its principal place of business in California.
During discovery, Kerr moved for the exclusion of testimony from Barnes's proposed experts pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Rule 702 of the Federal Rules of Evidence, alleging that these experts would "inject untested, unreliable, and speculative `courtroom science' into these proceedings [that] do nothing to...
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