Best v. Lowe's Home Centers, Inc.

• Decision Date: 16 April 2009
• Docket Number: No. 08-5924.,08-5924.
• Citation: 563 F.3d 171
• Parties: David L. BEST, Plaintiff-Appellant, v. LOWE'S HOME CENTERS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

563 F.3d 171

David L. BEST, Plaintiff-Appellant, v. LOWE'S HOME CENTERS, INC., Defendant-Appellee.

No. 08-5924.

United States Court of Appeals, Sixth Circuit.

Argued: March 12, 2009.

Decided and Filed: April 16, 2009.

ARGUED: Robert E. Pryor, Jr., Pryor, Flynn, Priest & Harber, Knoxville, Tennessee, for Appellant. Clinton J. Woodfin, Spicer, Flynn & Rudstrom, Knoxville, Tennessee, for Appellee. ON BRIEF: Robert E. Pryor, Jr., Pryor, Flynn, Priest & Harber, Knoxville, Tennessee, for Appellant. Clinton J. Woodfin, Spicer, Flynn & Rudstrom, Knoxville, Tennessee, for Appellee.

Before: MARTIN and GILMAN, Circuit Judges; ZOUHARY, District Judge.^*

OPINION

RONALD LEE GILMAN, Circuit Judge.

David L. Best claims to suffer from permanent anosmia—the loss of his sense of smell—as a result of a pool chemical spilling onto his face and clothing at a Lowe's Home Center store. After filing suit against Lowe's, Best planned to introduce the expert testimony of Dr. Francisco Moreno, a board-certified otolaryngologist (an ear, nose, and throat doctor) and a former chemical engineer, in order to establish the causal link between the chemical spill and his injuries. The district court excluded Dr. Moreno's testimony, holding that the method employed by the doctor in drawing his conclusions regarding causation was "unscientific speculation." This resulted in summary judgment being granted in favor of Lowe's. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual background

Best visited a Lowe's store in Knoxville, Tennessee in June 2003. Intending to purchase chemicals for his swimming pool, he located a product called Aqua EZ Super Clear Clarifier (Aqua EZ). When Best lifted the plastic container from the shelf, an unknown quantity of the contents splashed onto his face and clothing. The container had allegedly been accidentally punctured with a knife by the Lowe's employee who had opened the shipping box. Best went to the emergency room of a hospital for treatment on the day that the spill occurred. Four months later, Best sought care and treatment from Dr. Moreno for the injuries associated with the incident. Dr. Moreno has practiced medicine as an otolaryngologist since 1982. Before attending medical school, Dr. Moreno earned a Bachelor of Science degree in chemical engineering. He was employed as a chemical engineer from 1968 until 1972.

At the time of his initial visit to Dr. Moreno, Best described the incident at Lowe's. He said that the spilled product had a strong odor, and that immediately thereafter he had suffered from irritation and burning of his skin, irritation to his nasal passages and mouth, dizziness, and shortness of breath. Best also reported that he experienced clear drainage from his nose following the spill and that he eventually lost his sense of smell completely. Dr. Moreno was unable to inspect Best's mucous membranes for physical damage because they are located too far inside the nasal passages to permit visual examination.

Best was seen for a second time by Dr. Moreno in January 2007. Dr. Moreno took a new medical history and again performed a physical examination to the extent possible in light of the position of the mucous membranes in the nose. At that time, Best was experiencing rhinitis—otherwise known as a runny or stuffy nose— with swelling and decreased airflow. Best reported that, during the three-and-a-half year period since the spill incident, he had struggled with rhinitis, anosmia, and dizzy spells.

In April 2008, Dr. Moreno administered to Best the University of Pennsylvania Smell Identification Test (UPSIT), a standardized test of olfactory function. The test involves various sample chemicals, requiring the test subject to choose one of four descriptions of each sample's scent. Best scored a six on the test, a score consistent with complete anosmia.

Dr. Moreno testified in his deposition that "[l]oss of smell is caused by either a virus, an accident, tumors to the brain, surgery into the brain, or exposure to chemicals." He also conceded that sometimes anosmia is idiopathic, meaning that it occurs for unknown reasons, and that some medications can cause a loss of the sense of smell. Dr. Moreno proceeded to list the following medications that Best reported taking at the time of his chemical exposure: aspirin, Atenolol, Effexor, hydrochlorithiazide, Lescol, Letensin, moxamorphin, OxyContin, Protonix, and Remeron. Dr. Moreno stated that Atenolol and Lotensin are for blood pressure; aspirin, moxamorphin, and OxyContin are for pain; Effexor is for depression; hydrochlorothiazide is a fluid pill; and Protonex is for the stomach. He was unfamiliar with the drug Lescol. Referring to all of the medications, he stated that "[i]n my practice, with the patients that I have seen . . . over the years . . ., I have never seen an anosmia caused from the use of these medications." He also said that he had looked up all of the medications except Lescol in the course of his practice. Dr. Moreno was unable to list the general types of medications that can cause a loss of the sense of smell.

Lowe's provided Best's attorney with a one-page document identifying the pool chemical as Aqua EZ. The document describes the product as a "thick blue liquid" containing cationic polymers that attract foreign particles in the pool water so that they can be more efficiently removed by the filtration system. After receiving this document, Best's attorney obtained a Material Safety Data Sheet (MSDS) prepared by Ciba Specialty Chemicals Corporation, the supplier of the active ingredient in Aqua EZ. Dr. Moreno reviewed the MSDS, which describes the characteristics of the active ingredient.

The relevant ingredient is an organic cationic polyelectrolyte. Specifically, the compound is a homopolymer with the name 2-Propen-1-aminium, N, N-dimethyl-N-2-propenyl-chloride. The MSDS identifies the chemical as "hazardous" and states that "[p]rolonged or repeated contact may cause eye and skin irritation." Primary routes of entry for the compound are listed as "Ingestion, Skin, Inhalation, Eyes." According to the MSDS, if the chemical is inhaled, the person should be "[r]emove[d] to fresh air, if not breathing give artificial respiration. If breathing is difficult, give oxygen and get immediate medical attention." The Handling Instructions state: "Do not inhale. . . . Use only with adequate ventilation." Under the heading "Engineering Controls," the MSDS instructs: "Work in well ventilated areas. Do not breathe vapors or mist." The MSDS also notes that "Acute Inhalation Toxicity" for the compound has not been determined. Dr. Moreno later reviewed a second MSDS, published by Sigma-Aldrich, another supplier of the relevant compound. That MSDS confirmed that the compound is "irritating to the mucous membrane and upper respiratory tract" and that it "[m]ay be harmful if inhaled."

Dr. Moreno concluded, based on the MSDS information, that the inhalation of Aqua EZ has the potential to cause damage to the nasal and sinus mucosa and the nerve endings of the olfactory bulb. According to Dr. Moreno, the culprit components of the polymer in question include a chlorine derivative and an ammonium derivative. He offered his opinion that "a chemical burn can cause a loss of smell on a time basis" due to "scarring of the tissue," and reported that he has treated other chemical exposures with anosmic side effects following exposure to chlorine derivatives. But Dr. Moreno did not know the precise amount of the offending chemical that Best had been exposed to, nor was he able to determine the threshold level of exposure that could cause harm. Dr. Moreno summarized his diagnosis regarding causation this way:

The patient had an accident, chemical was spilled, the patient cannot smell. If we have any trust in the patient at all, all I can say is he cannot smell. I did test him, his test was positive in the fact that he was anosmic. All I can tell you is that exposure to the— the only exposure that he had at the time that I talked to him was exposure to this chemical. There was nothing else in his history that dictated the fact that he was anosmic otherwise.

In short, because of the temporal relationship between Best's exposure to the chemical and the onset of his symptoms, in conjunction with a principled effort to eliminate other possible causes of anosmia, Dr. Moreno formed the opinion that the inhalation of Aqua EZ caused Best to lose his sense of smell.

B. Procedural history

Best originally filed suit against Lowe's in a Tennessee trial court. Lowe's timely removed the case to the federal district court based upon diversity of citizenship under 28 U.S.C. § 1332. After Best identified Dr. Moreno as an expert witness, counsel for Lowe's took the doctor's deposition. Lowe's then moved for the exclusion of Dr. Moreno's testimony regarding the cause of Best's injury and also moved for summary judgment. The district court excluded Dr. Moreno's proposed testimony after concluding that the doctor's opinion was too speculative. Best v. Lowe's Home Centers, Inc., No. 3:04-CV-294, 2008 WL 2359986 at *9 (E.D.Tenn. June 5, 2008). Because Best presented no other evidence to carry his burden of proof on the element of causation, the district court granted partial summary judgment in favor of Lowe's on Best's anosmia claim. Id. Best later withdrew his claims for the less serious injuries and losses that he allegedly suffered as a result of the chemical spill. The court accordingly granted summary judgment in full to Lowe's. Best now appeals the district court's decision to exclude Dr. Moreno's testimony.

II. ANALYSIS

A. Standard of review

We apply the abuse-of-discretion standard in reviewing a district court's decision regarding the admissibility of expert testimony. Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 258 (...