Brown v. Dow Chemical Co., 88-1854WA
| Decision Date | 23 May 1989 |
| Docket Number | No. 88-1854WA,88-1854WA |
| Citation | 875 F.2d 197 |
| Parties | , Prod.Liab.Rep.(CCH)P 12,150 William BROWN and Nancy Brown, Appellants, v. DOW CHEMICAL COMPANY and Shell Chemical Company, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Floyd M. Thomas, Jr., El Dorado, Ark., for appellants.
Robert K. Walsh, Little Rock, Ark., for appellees.
Before McMILLIAN and BEAM, Circuit Judges, and HARPER, * Senior District Judge.
Appellants are William and Nancy Brown (hereinafter appellants.) They sued Dow Chemical Company (hereinafter Dow) and Shell Chemical Company (hereinafter Shell) in strict liability and negligence arising out of the exposure of William Brown (hereinafter Brown) at his place of employment to the chemical compound dibromochloropropane (hereinafter DBCP). Appellants allege that Brown's exposure to DBCP rendered him sterile. Appellants base their claims against Dow and Shell (referred to collectively as appellees) on the ground that appellees are co-holders of patents for DBCP, and they, therefore, were obligated to warn Brown and his co-workers that exposure to DBCP could cause sterility.
Appellees filed a motion for summary judgment asserting that the doctrine of collateral estoppel precluded the adjudication of the issues herein. Appellees based their motion on the fact that appellants had earlier filed a workers' compensation claim in January of 1982 alleging a connection between Brown's exposure to DBCP and his sterility. The opinion of the Administrative Law Judge, which was issued on July 11, 1986, was in Brown's favor. Appellees appealed to the Full Commission and the decision was reversed because the evidence was insufficient to establish causal connection by a preponderance of the evidence. On appeal to the Arkansas Court of Appeals, the reversal of the Full Commission was upheld on the ground that the Court could not conclude that the finding of the Full Commission was not supported by substantial evidence nor was the wrong standard of proof applied. The District Court for the Western District of Arkansas granted appellees' motion for summary judgment on the grounds of collateral estoppel, and the running of the statute of limitations.
The substantive facts leading to this appeal are as follows: In 1977, Brown was employed by the Velsicol Chemical Company (hereinafter Velsicol) at El Dorado, Arkansas. He was hired to work in the manufacturing of DBCP. Velsicol notified Brown in 1977 that exposure to DBCP might lead to sterility. He sought the advice of Dr. Robert M. Murfee, a urologist. Dr. Murfee conducted tests and found Brown's semen to be without sperm. Brown remained a patient of Dr. Murfee through December, 1983, by which time Brown's sperm count had rebounded, yet remained obligospermic (deficient in the number of spermatozoa in the semen). Dr. Murfee did not determine that there was a causal connection between Brown's low sperm count and his exposure to DBCP.
In 1982, Brown filed the previously mentioned workers' compensation claim in which he alleged a connection between his sterility and his exposure to DBCP. In 1984, Brown consulted Dr. Channing Meyer, Director of the Occupational Health Clinic at the University of Cincinnati Medical School. Dr. Meyer issued a written Summary Report on April 6, 1984, in which he made certain findings based on the history supplied to him by Brown. Dr. Meyer said that Brown's sterility "occurred directly as a result of [his exposure] to high concentrations of DBCP over the 3-4 month period of time in early 1977." Brown did not request a hearing on his claim until after Dr. Meyer issued the Summary Report. On July 11, 1986, the Administrative Law Judge issued an opinion favorable to Brown. As noted previously, appellees herein appealed that decision to the Full Commission, where it was reversed. This reversal was upheld by the Arkansas Court of Appeals. Appellants herein filed suit in the district court below where summary judgment was entered in favor of appellees. Appellants raise the following issues on appeal.
I. WHETHER THE COURT ERRED IN FINDING THAT A DECISION ADVERSE TO THE APPELLANT BY THE ARKANSAS WORKERS' COMPENSATION COMMISSION WAS RES JUDICATA AS TO THE ISSUES RAISED IN THIS SUIT.
The Full Commission reversed the award by the Administrative Law Judge to Brown "because Brown has failed to produce a preponderance of the evidence to establish a causal connection between his exposure to the DBCP and his lowered fertility." The Full Commission had before it the reports of both Dr. Murfee and Dr. Meyer. After considering both of those reports, the Full Commission said
The district court granted appellees' motion for summary judgment on collateral estoppel grounds because the same causal connection issues were before it that had been presented to the Full Commission. Appellants argue that the issues before the district court were not identical to those before the Full Commission. Their position is that this case was presented to the Full Commission as part of an attempt to create a change in Arkansas' workers' compensation law. If successful, appellants argue, they would have established a rule in Arkansas that partial functional injury to the testicles is compensable. Arkansas law currently...
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