Fu v. State, S-01-037.

• Decision Date: 17 May 2002
• Docket Number: No. S-01-037.,S-01-037.
• Citation: 263 Neb. 848,643 N.W.2d 659
• Parties: Hongning FU, Appellant and Cross-Appellee, v. STATE of Nebraska, State of Nebraska Board of Regents, University of Nebraska, doing business as University of Nebraska Medical Center, Appellee and Cross-Appellant.
• Court: Nebraska Supreme Court

643 N.W.2d 659

263 Neb. 848

Hongning FU, Appellant and Cross-Appellee, v. STATE of Nebraska, State of Nebraska Board of Regents, University of Nebraska, doing business as University of Nebraska Medical Center, Appellee and Cross-Appellant.

No. S-01-037.

Supreme Court of Nebraska.

May 17, 2002.

Steven H. Howard, of Law Offices of Ronald J. Palagi, P.C., for appellant.

David D. Ernst and Lisa M. Meyer, Omaha, of Gaines, Pansing & Hogan, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, McCORMACK, and MILLER-LERMAN, JJ.

HENDRY, C.J.

INTRODUCTION

Hongning Fu, a former graduate student at the University of Nebraska Medical Center College of Pharmacy (UNMC), brought suit against UNMC pursuant to the State Tort Claims Act seeking to recover for injuries he sustained in a laboratory explosion. The court found in favor of UNMC. In its order, the court concluded that although Fu's dissertation chairperson, Jonathan Vennerstrom, Ph.D., was negligent in failing to monitor Fu more closely, Vennerstrom's negligence was not a proximate cause of the explosion which injured Fu. Fu appealed, and UNMC cross-appealed. We moved the case to our docket pursuant to our authority to regulate the caseloads of this court and the Nebraska Court of Appeals. See Neb. Rev.Stat. § 24-1106(3) (Reissue 1995).

FACTUAL BACKGROUND

In 1981, Fu received a bachelor's degree in pharmaceutical studies from the West China University of Medical Sciences. In 1984, Fu was awarded a master's degree in medical pharmaceutical sciences from Shandong Medical University in China and thereafter worked as an organic chemistry instructor at the Shandong University Department of Pharmacy from 1984 to 1990. In 1990, Fu was admitted as a graduate student at UNMC.

Vennerstrom, an associate professor at UNMC since 1987, was Fu's advisor and the chairperson of Fu's doctoral dissertation committee. Vennerstrom's main area of research was focused upon the creation of a synthetic antimalarial drug and involved experiments with chemical compounds known as tetraoxanes. While serving as Fu's chairperson, Vennerstrom prepared a grant proposal for the World Health Organization (WHO) involving his antimalarial research. Fu was identified in the WHO grant proposal as a student researcher working under Vennerstrom.

In order to be admitted as a doctoral student in the College of Pharmacy, one must prepare a dissertation proposal which sets out the intended area of research he or she will pursue. Fu's dissertation topic was related to the WHO grant and dealt with the "Activity Relationship of 1, 2, 4, 5-Tetraoxanes." Fu's written dissertation proposal set out intended experiments with both "bridged" and "unbridged" tetraoxanes. Bridged tetraoxanes are unstable and more likely to explode than unbridged tetraoxanes. Vennerstrom's tetraoxane research, in association with the WHO grant, and Fu's dissertation proposal both involved the use of concentrated hydrogen peroxide (peroxide). Concentrated peroxide can explode if not handled properly.

Fu studied at UNMC from 1990 to 1993. His studies included both classwork and laboratory work related to his dissertation and the WHO grant. As part of his laboratory work, Fu kept notebooks in which he recorded the experiments performed, the procedures utilized, and the experiment results. Fu completed three notebooks and was working in a fourth when the explosion occurred. All of the experiments undertaken by Fu related to creating unbridged tetraoxanes, except for four experiments recorded in the fourth notebook between May 28 and June 11, 1993. These four experiments were labeled "HF-4-13," "HF-4-18," "HF-4-20," and "HF-4-21." Fu began HF-4-13 on May 28. The experiment which caused the explosion was HF-4-21. Fu began HF-4-21 on June 11, and it exploded that same day.

According to Fu, HF-4-13, HF-4-18, HF-4-20, and HF-4-21 were attempts to create bridged tetraoxanes and were a component of Fu's area of research. Fu asserted that Vennerstrom designed all the experiments contained in the four notebooks and directed Fu to perform them.

At trial, Fu contended that Vennerstrom directed Fu to perform HF — 4-21 as part of the WHO grant, without providing Fu with adequate supervision, protective safety gear, or information or warning that H4-21 could result in an explosive compound. Fu also asserted that he had no knowledge that HF — 4-21 had been previously attempted by other researchers or that HF — 4-21 could result in an explosive substance. Fu further claimed that he was not wearing gloves when the explosion occurred on June 11, 1993, because there were no gloves in the laboratory.

Fu testified that while in China, he had never worked with high concentrations of peroxide or conducted experiments involving tetraoxanes. Fu explained that his dissertation proposal was undertaken in conjunction with the WHO grant and that HF-4-21 was part of Vennerstrom's research for the WHO grant. Fu testified that no one besides himself wrote in his four laboratory notebooks or performed the experiments recorded.

Fu stated that when he began his studies with Vennerstrom, Vennerstrom gave him a large quantity of articles and other information to read regarding Vennerstrom's tetraoxane research. However, Fu asserted that Vennerstrom had never given him exhibit 17, a German article specifically describing HF-4-21. This article states that HF-4-21 produces an explosive triperoxide. Fu stated he had never seen exhibit 17 until he brought suit against UNMC, when Vennerstrom produced the article in response to a discovery request. Fu also stated he could not read German. Fu explained that if he had read the German article, he would have asked Vennerstrom why he was directing him to do such a dangerous experiment. Fu also testified that two previous experiments in the course of his work for Vennerstrom, involving unbridged tetraoxanes and recorded in laboratory notebooks one and three, had resulted in explosions.

On cross-examination, Fu agreed that he was able to translate German with the help of a dictionary and did some German translation work for Vennerstrom. However, Fu maintained that Vennerstrom never gave him the German article. He agreed that HF-21 was "probably" what caused the explosion, but stated that he did not know himself which experiment exploded. Fu explained that his intention in performing HF — 4-21 was to synthesize a bridged tetraoxane in conjunction with the WHO grant and that he did not know that HF-4-21 would produce an explosive compound. Fu also agreed that Vennerstrom gave him information on the type of protective gear to wear when working with concentrated peroxide. He further testified, however, that such gear was not always available in the laboratory.

Vennerstrom's testimony, for the most part, presents a completely different version of the facts. Vennerstrom testified that he gave Fu a large amount of written material concerning Vennerstrom's work with tetraoxanes when Fu began his studies and that he expected Fu to read all this material. Included in this material was the German article on HF-4-21 (exhibit 17). Vennerstrom further testified that although experiments involving bridged tetraoxanes were included in Fu's dissertation proposal, it was later agreed that Fu's experiments would involve only unbridged tetraoxanes.

Vennerstrom went on to explain that the decision to exclude bridged tetraoxanes from Fu's work was based on the fact that Vennerstrom had already completed sufficient experiments on bridged tetraoxanes for purposes of his research for the WHO grant proposal. Vennerstrom testified he discussed this with Fu and that they agreed that Fu's dissertation would therefore involve only unbridged tetraoxanes.

Notwithstanding this agreement, Vennerstrom testified that in mid-May 1993, Fu requested permission from Vennerstrom to attempt some bridged tetraoxane experiments. Vennerstrom explained he instructed Fu not to undertake any such experiments. During the 2-week period preceding the explosion on June 11, Fu continued to seek authorization from Vennerstrom to conduct such experiments, and Vennerstrom continued to direct him not to attempt them.

Vennerstrom's office was located across the hall from the laboratory where Fu performed his experiments. Vennerstrom testified that he typically spoke with Fu two to three times a week about his work and periodically checked the experiments and results recorded in Fu's notebooks. Vennerstrom did not check Fu's notebooks between May 28, 1993, and the time of the explosion. Vennerstrom testified he had no knowledge that Fu began doing experiments on May 28 in which he attempted to create bridged tetraoxanes. Vennerstrom acknowledged that he knew Fu was working in the laboratory during this time period, but stated that he had no knowledge of Fu's specific experiments other than the fact that Fu was "generally working in the area of chemistry."

According to Vennerstrom, HF-4-21 was an unauthorized experiment which Fu undertook without Vennerstrom's knowledge. Vennerstrom stated that he believed and trusted that Fu would accept his directions and not conduct experiments related to bridged tetraoxanes and that he had no reason to believe Fu would attempt HF-4-21. Regarding the circumstances surrounding the accident, the evidence showed that Fu began working on HF-4-21 on June 11, 1993. This reaction involved mixing 70 percent peroxide with dichloromethane, methanesulfonic acid, and acetonylacetone.

There was further evidence that after combining the above ingredients, Fu carried HF-4-21 in a glass beaker to an adjoining laboratory to use the "roto-vapper." Another student working in the adjoining laboratory, Sudha Vippagunta, testified that Fu used the "roto-vapper" to evaporate the liquid in the beaker, resulting in a substance that was thick and looked somewhat like a "cotton ball." According to Vippagunta, Fu seemed surprised by the result, showing the...