Bonner v. ISP Technologies Inc., No. 00-3458

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Wollman
• Citation: 259 F.3d 924
• Parties: (8th Cir. 2001) KATIE BONNER, PLAINTIFF/APPELLEE, ESAU BONNER, PLAINTIFF, v. ISP TECHNOLOGIES, INC., DEFENDANT/APPELLANT, CRAWFORD & COMPANY, INC., MOVANT. Submitted:
• Decision Date: 16 May 2001
• Docket Number: No. 00-3458

Page 924

259 F.3d 924 (8th Cir. 2001) KATIE BONNER, PLAINTIFF/APPELLEE, ESAU BONNER, PLAINTIFF,
v.
ISP TECHNOLOGIES, INC., DEFENDANT/APPELLANT, CRAWFORD & COMPANY, INC., MOVANT. No. 00-3458 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Submitted: May 16, 2001
Filed: August 3, 2001

Appeal from the United States District Court for the Eastern District of Missouri.

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Before Wollman, Chief Judge, Hansen, Circuit Judge, and Barnes,¹ District Judge.

Wollman, Chief Judge.

ISP Technologies, Inc. (ISP) appeals the judgment entered by the district court² on a jury verdict against it for damages sustained by Katie Bonner. We affirm.

I.

Taking the facts in the light most favorable to the verdict, Katie Bonner was twice exposed to FoamFlush, an organic solvent manufactured by ISP, during her employment on an assembly line in a urethane filter production plant. In March of 1995, the solvent partially dissolved a neoprene hose near Bonner's work station and sprayed over her in a dense mist. In July of 1995, FoamFlush vapors were released from a drum near her work station. Foamflush was used in the plant to clean urethane byproducts from manufacturing equipment. The product was marketed as a "drop-in" replacement for methylene chloride, a carcinogenic solvent, that could be used with systems designed for methylene chloride. FoamFlush contains 57% gamma-butyrolactone (BLO) and three other chemical compounds in smaller quantities. In the human body, BLO metabolizes into gamma-hydroxybutric acid (GHB). Bonner's work station was poorly ventilated at the time of the first exposure, and her protective gear was limited to gloves and goggles.

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Bonner alleged three distinct permanent injuries: (1) psychological problems resulting from both her initial exposure and her health problems, (2) cognitive impairment and personality disorders caused by damage to her brain, and (3) Parkinsonian symptoms caused by damage to her brain. At trial, Bonner presented expert witness testimony tending to show that her exposure to FoamFlush caused all three injuries. The case was tried twice in the district court, and Bonner prevailed both times. After the first trial, the district court granted ISP's motion for a new trial because one of Bonner's experts had given testimony that went beyond the scope of his deposition. This appeal is from the second jury verdict, which awarded Bonner $2.2 million for her personal injuries.

II.

ISP argues that the court should have excluded expert witness testimony, that Bonner's evidence was insufficient to support the jury verdict, that the court improperly refused to give two of ISP's proposed jury instructions, and that the court should have granted ISP's motion for a new trial because of the excessiveness of the verdict.

ISP contends that the district court erred in admitting testimony of Dr. Terry Martinez, a pharmacologist and toxicologist, and of Dr. Raymond Singer, a neuropsychologist and neurotoxicologist. It further contends that, because Bonner could not show causation without their testimony, it is entitled to judgment as a matter of law.

To prove causation in a toxic tort case, a plaintiff must show both that the alleged toxin is capable of causing injuries like that suffered by the plaintiff in human beings subjected to the same level of exposure as the plaintiff, and that the toxin was the cause of the plaintiff's injury. See Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1106 (8th Cir. 1996). In other words, the plaintiff must put forth sufficient evidence for a jury to conclude that the product was capable of causing her injuries, and that it did. We have held, however, that "[t]he first several victims of a new toxic tort should not be barred from having their day in court simply because the medical literature, which will eventually show the connection between the victims' condition and the toxic substance, has not yet been completed." Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1208-09 (8th Cir. 2000). Bonner did not "need to produce 'a mathematically precise table equating levels of exposure with levels of harm' in order to show" that she was exposed to a toxic level of FoamFlush, "but only 'evidence from which a reasonable person could conclude'" that her exposure probably caused her injuries. Bednar v. Bassett Furniture Mfg. Co., 147 F.3d 737, 740 (8th Cir. 1998) (quoting Wright, 91 F.3d at 1107).

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Fed. R. Evid. 702. We review under an abuse of discretion standard a district court's ruling admitting expert witness testimony under Rule 702. General Electric Co. v. Joiner, 522 U.S. 136, 141-42 (1997). In Daubert v. Merrill Dow Pharmaceuticals, Inc., 309 U.S. 579 (1993), the Supreme Court detailed the Rule 702 standard for admission of scientific evidence. Although Daubert offers four general criteria³ for assessing

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the reliability of scientific evidence, it also emphasizes that "[t]he inquiry envisioned by Rule 702 is... a flexible one. Its overarching subject is the scientific validity--and thus the evidentiary relevance and reliability--of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." 509 U.S. at 594-95. The district court performs a gatekeeping function with respect to scientific evidence, ensuring that evidence submitted to the jury meets Rule 702's criteria for relevance and reliability. Id. at 590-91. The rule's concern with "scientific knowledge" is a reliability requirement, while the requirement that the evidence "assist the trier of fact to understand the evidence or determine a fact in issue" is a relevance requirement. Id.

There is no requirement "that a medical expert must always cite published studies on general causation in order to reliably conclude that a particular object caused a particular illness." Heller v. Shaw Indus., 167 F.3d 146, 155 (3d Cir. 1999); see Turner, 229 F.3d at 1207-08 (citing Heller, 167 F.3d at 155). "[E]ven if the judge believes there are better grounds for some alternative conclusion, and that there are some flaws in the scientist's methods, if there are good grounds for the expert's conclusion, it should be admitted.... [T]he district court could not exclude [scientific] testimony simply because the conclusion was 'novel' if the methodology and the application of the methodology were reliable." Heller, 167 F.3d at 152-53 (internal quotation marks and citation omitted). Likewise, there is no requirement that published epidemiological studies supporting an expert's opinion exist in order for the opinion to be admissible. National Bank of Commerce v. Associated Milk Prods. Inc., 191 F.3d 858, 862 (8th Cir. 1999). Both our cases and the decisions of the Supreme Court make clear that it is the expert witnesses' methodology, rather than their conclusions, that is the primary concern of Rule 702. See Kuhmo Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); Daubert, 509 U.S. at 594-95; Turner, 229 F.3d at 1209.

Although the district court's gatekeeping function includes an analysis of the reliability...