Barrett v. Rhodia Inc

• Decision Date: 24 May 2010
• Docket Number: No. 09-3115.,09-3115.
• Citation: 606 F.3d 975
• Parties: Dave BARRETT; Clean Harbors Environmental Services, Inc., Plaintiffs-Appellants,v.RHODIA, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

606 F.3d 975

Dave BARRETT; Clean Harbors Environmental Services, Inc., Plaintiffs-Appellants,v.RHODIA, INC., Defendant-Appellee.

No. 09-3115.

United States Court of Appeals Eighth Circuit.

Submitted: April 12, 2010.

Filed: May 24, 2010.

COPYRIGHT MATERIAL OMITTED

Maren Lynn Chaloupka, argued, Scottsbluff, NE, for appellant.

Gary J. Nedved, argued, Anne E. Winner, on the brief, Lincoln, NE, for appellee.

Before WOLLMAN, MURPHY, and SHEPHERD, Circuit Judges.

MURPHY, Circuit Judge.

Dave Barrett and Clean Harbors Environmental Services, Inc. brought this action against Rhodia, Inc., alleging that Barrett had suffered permanent injury while working with a chemical manufactured by Rhodia. After granting a motion to exclude the causation evidence offered by plaintiffs' expert witnesses, the district court ¹ granted Rhodia's motion for summary judgment. Barrett and Clean Harbors appeal, protesting the exclusion of some of their expert testimony and the adverse summary judgment. We affirm.

I.

Clean Harbors is the country's largest provider of hazardous waste material disposal. Barrett worked as an ash technician for Clean Harbors at its Kimball, Nebraska plant. In that position Barrett participated in “ash fixation,” a process by which waste materials are rendered stable so they can be safely disposed of in landfills. The chemical phosphorus pentasulfide (P₂ S₅) is used during ash fixation to accelerate the stabilization of the waste material. The P₂S₅ used by Clean Harbors was manufactured and supplied by Rhodia.

P₂S₅ is a hazardous chemical. It is manufactured in solid form, but it reacts with water and water vapor to form toxic hydrogen sulfide gas. P₂S₅ airborne dust is irritating to the eyes, nose, throat, and skin. If P₂S₅ dust is inhaled, it reacts with moisture in the lungs to form hydrogen sulfide gas. High concentrations of hydrogen sulfide gas, in the range of 500 to 1000 parts per million (ppm), can cause unconsciousness and possible death. Given the dangers of P₂S₅, the Occupational Safety and Health Administration advises persons using the chemical to wear full protective clothing and a self contained breathing apparatus.

On June 27, 2003 four Clean Harbors employees, including Barrett, were participating in the ash fixation process. The process took place inside a building at the Clean Harbors Kimball plant. The building contains three floors, with each floor consisting of an open steel grating platform. Drums of P₂S₅ are located on the top platform. During ash fixation one employee loads a drum of P₂S₅ into a chute located on the top floor. An employee on the second floor then opens a chute on that level, which allows the P₂S₅ to travel to the bottom floor, where the waste materials sit.

Clean Harbors employee Craig Wheeland was working on the top platform with the P₂S₅ drums on June 27. He was wearing a self contained breathing apparatus. The remaining three employees, including Barrett, were situated on the second level, about twelve to fourteen feet below Wheeland. None of the employees on the second level were wearing protective masks or clothing. Wheeland opened a drum of P₂S₅ and loaded it into the chute. Barrett was tasked with opening the chute on the second level. As he started to open the chute, he “went down” and became unresponsive. Another employee on the second level felt something “take his breath.” He and the third colleague helped evacuate Barrett from the building. Wheeland was later found dead on the top floor.

Barrett was taken immediately to the hospital where he was unable to talk and unresponsive to questions. Barrett's wife testified that during his two weeks of missed work following the incident, he remained quiet and unresponsive. Barrett's coworkers reported that his speech slowed substantially, that he could not track in conversations or understand simple sentences, and that he could not handle even the simplest tasks, such as pushing a broom. He has since been diagnosed with dementia resulting from an anoxic brain injury, or lack of oxygen to the brain.

Clean Harbors hired Terracon, an independent environmental company, to investigate the June 27 incident. Terracon inspected and tested the P₂S₅ drum Wheeland had opened, as well as other previously unopened P₂S₅ drums stored at the Kimball plant. Terracon found hydrogen sulfide gas in the headspaces of the previously unopened drums and in the subject drum. Based on those findings, the company concluded that the drum opened by Wheeland may have had a maximum hydrogen sulfide concentration of 5,500 ppm. Because Terracon found the opened drum to have been airtight, it tested possible exposure levels based on a single, rather than continuous, release of hydrogen sulfide gas. Terracon then prepared a table of exposure concentrations for hydrogen sulfide gas dispersed from the opened drum at different distances, which showed a range of 2.3 ppm to 120 ppm at a distance of twelve feet from the drum.

Barrett and Clean Harbors sued Rhodia, asserting that the chemical manufacturer was strictly liable for Barrett's injuries. They premised the strict liability claim on two theories: product defect and failure to warn. They alleged that defects in the P₂S₅ drum had allowed condensation to form inside the drum, resulting in the creation of hydrogen sulfide gas. Barrett and Clean Harbors asserted that when Wheeland opened the P₂S₅ drum on June 27, the hydrogen sulfide gas dispersed in a sufficient concentration to cause serious injury to Barrett. They also alleged that the P₂S₅ drums were sold without a warning about the risk relating to the possible formation of hydrogen sulfide gas.

Barrett and Clean Harbors retained four expert witnesses to testify on their behalf. Dr. Gerti Janss has been a physician for 50 years. She works primarily as an allergist, but is board certified in toxicology and has worked with patients who have toxicology related problems. Dr. Janss examined Barrett in March 2005 and was prepared to testify that Barrett had suffered a brain injury resulting from exposure to hydrogen sulfide gas, that the hydrogen gas came from the P₂S₅ drum opened by Wheeland, and that Barrett was exposed to a high concentration of the toxic gas, 500 to 700 ppm.

Dr. Terry Himes has been Barrett's treating physician since August 2004. He is a doctor of osteopathic medicine specializing in neurology and has been board certified as a neurologist for over 20 years. Based on his treatment of Barrett, Dr. Himes concluded that he had suffered from a brain injury resulting from exposure to hydrogen sulfide gas.

Appellants' final medical expert was Dr. Anne Talbot, a licensed clinical psychologist with training in neuropsychology. She has practiced in the areas of psychotherapy and neuropsychotherapy for over 23 years. Dr. Talbot was prepared to testify that Barrett's specific brain injury, dementia, was consistent with hydrogen sulfide gas poisoning. She also intended to testify that Barrett had been exposed to hydrogen sulfide gas in a concentration of 500 to 700 ppm.

Appellants also retained Edward Ziegler, a safety engineer with a degree in petroleum and natural gas engineering. Ziegler visited the ash fixation building at Clean Harbors' Kimball plant and observed the P₂S₅ drums housed there, but did not conduct any testing of the drums or the chemicals involved. Based on his visit to the ash fixation building and his review of the physicians' findings, Ziegler was prepared to testify that defects existed in the P₂S₅ drums supplied by Rhodia, that hydrogen sulfide gas had formed in the drum opened by Wheeland, and that the released gas had caused Barrett's injury.

Rhodia presented an alternative explanation for Barrett's injuries through its own expert, Dr. Michael Fox. Dr. Fox has a Ph.D. in physical chemistry and specializes in chemical accident reconstruction. He conducted drum opening experiments in Clean Harbors' ash fixation building, including gas dispersion calculations, to determine the potential hydrogen sulfide gas exposure to a person twelve to fourteen feet below the P₂S₅ drum. Based on the gas dispersion and drum opening tests, Dr. Fox concluded that the drum opened by Wheeland could not have exposed Barrett to a sufficient concentration of hydrogen sulfide, 500 to 700 ppm, to cause serious injury. Once the hydrogen sulfide gas reached the second level, its concentration was too weak to cause injury. Based on his findings, Dr. Fox concluded that Barrett, who had not been wearing a protective breathing apparatus at the time of the incident, had inhaled P₂S₅ dust when he attempted to open the chute. The P₂S₅ dust then converted into hydrogen sulfide gas when it reached Barrett's lungs, causing his injuries.

Prior to trial Rhodia filed a motion in limine challenging the qualifications of the expert witnesses retained by Barrett and Clean Harbors. Rhodia asserted that the proffered experts lacked the experience and scientific foundation to testify about the cause or concentration of Barrett's toxic exposure. The district court granted Rhodia's motion in part. It concluded that Dr. Janss, Dr. Himes, Dr. Talbot, and Edward Ziegler were not qualified through their education, experience, or otherwise to render an opinion about the dispersal of hydrogen sulfide gas, the concentration level of Barrett's exposure to the gas, or whether his injuries were caused by hydrogen sulfide gas released from the opened P₂S₅ drum. See Fed.R.Evid. 702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

The district court did rule, however, that Dr. Janss was qualified to testify about Barrett's symptoms and whether his symptoms were consistent with exposure to particular levels of hydrogen sulfide gas. The court concluded that Dr. Himes was qualified to testify about Barrett's symptoms and injury. Dr. Talbot was permitted to testify about Barrett's condition and whether it was consistent with exposure to...