Kolesar v. United Agri Products, Inc.

• Court: U.S. District Court — Western District of Michigan
• Writing for the Court: Enslen
• Citation: Kolesar v. United Agri Products, Inc., 412 F.Supp.2d 686 (W.D. Mich. 2006)
• Decision Date: 26 January 2006
• Docket Number: No. 5:04-CV-138.,5:04-CV-138.
• Parties: Thomas A. KOLESAR, Plaintiff, v. UNITED AGRI PRODUCTS, INC.; and UAP Distribution, Inc., f/k/a Grower Services Corporation (New York) d/b/a UAP Great Lakes, Defendants.

412 F.Supp.2d 686

Thomas A. KOLESAR, Plaintiff, v. UNITED AGRI PRODUCTS, INC.; and UAP Distribution, Inc., f/k/a Grower Services Corporation (New York) d/b/a UAP Great Lakes, Defendants.

No. 5:04-CV-138.

United States District Court, W.D. Michigan, Southern Division.

January 26, 2006.

COPYRIGHT MATERIAL OMITTED

James F. Graves, Sinas Dramis Brake Boughton & McIntyre PC, Lansing, MI, for Plaintiff.

Allan Andrew Thoen, Dara D. Mann, John P. Mandler, Faegre & Benson, LLP, Minneapolis, MN, Jason J. Paupore, Dickinson Wright, PLLC, Lansing, MI, for Defendants.

OPINION

ENSLEN, Senior District Judge.

"Chemistry ... is one of the broadest branches of science, if for no other reason, when we think about it, everything is chemistry." Luciano Caglioti, The Two Faces of Chemistry, xv (MIT Press 1985).

BACKGROUND

This matter presents disputed motions in limine and a summary judgment motion for resolution. The suit was filed on or about August 5, 2004 in the Circuit Court for Ingham County, Michigan alleging negligence on behalf of Defendants United Agri Products, Inc. and UAP Distribution, Inc. in the injury of a business invitee, Plaintiff Thomas A. Kolesar.¹ On September 2, 2004, Defendants timely removed the suit to this Court pursuant to 28 U.S.C. § 1441 because of federal diversity jurisdiction under 28 U.S.C. § 1332. Plaintiff is a citizen of Pennsylvania. Defendants are citizens of Delaware and Colorado (UAP) and New York and Colorado (UAP Great Lakes), respectively. (See Notice of Removal ¶ 2.) The amount in controversy exceeds $75,000. (Id. at ¶ 4.) The alleged negligence involves a spill of liquid fertilizer—sodium methyldithiocarbamate² —delivered to Defendants' facilities in Plainfield, Wisconsin.³ (Compl.¶¶15-18.) The State of Michigan was not involved in the incident except for the irrelevant happenstance that Plaintiff's employer (not a party to the suit) is located in Michigan.

Metam sodium (chemical formula C2-H4-N-S2.Na) (HSDB No. 1767) is a white, crystalline non-flammable pesticide and fumigant. (Hazardous Substances Data Bank, Schaible Dep. Ex. 13 at 1, 3.) In this case, the metam sodium was in the form of a 42-percent metam sodium solution with 58 percent inert ingredients. (Kolesar Dep., Ex. 28 at 1.) According to one of Plaintiff's expert, the solution was basic with a pH reading of between 9 and 11. (Ronald Schaible Prelim. Report 1.) The exact pH is probably above 9.5, which is the breakpoint at which metam sodium begins to decompose to methyl isothiocyanate and hydrogen sulfide in an unconcentrated solution.⁴ (Hazardous Substances Data Bank 8.) This decomposition is important because the product works by the action (toxicity) of the methyl isothiocyanate (known as "MITC" for short). (Peggy Brady Report 4.) Metam sodium takes some time to decompose at pH levels of 7 or above. (Id.; Hazardous Substances Data Bank 8.) Add some soil to the mixture, though, which is typically at a pH below 7, and the decomposition is rapid. (Id.) The chemical properties of metam sodium thus both explain its effectiveness as a fertilizer (it remains relatively stable until combined with soil and then rapidly decomposes) and the precautions urged by the manufacturer and the Government to prevent its absorption and decomposition on and within the human body.⁵

As for its dangers, metam sodium is classified by the Government as an Acute Toxicity Category III substance as well as a skin and eye irritant. (Brady Report 4.) While this is nothing to be trifled with, neither is it ranked as the most toxic of hazardous substances-for which the Government reserves the ranking of Category I. Indeed, metam sodium is very widely used in agriculture with minimal complaints about toxicity. It is the third most widely used pesticide with some 51 million pounds applied in agriculture on a yearly basis. (Id.; EPA Notice of Metam Sodium Risk Assessment, 70 Fed.Reg. 53795, 53796 (Sept. 12, 2005).)

Most of what is known about the toxicity of metam sodium comes from either animal testing or a large scale train-car accident which occurred on July 14, 1991. Then, near Dinsmuir, California, a tank car filled with metam sodium solution derailed and lost 19,000 gallons to the Sacramento River. J. Cone et al., Persistent Respiratory Health Effects After a Metam Sodium Pesticide Spill, 106 Chest 500, 500 (Aug.1994). The resulting combination of MITC and hydrogen sulfide killed virtually all aquatic life on a 40-mile stretch of the River, which emptied into Lake Shasta. (Id.) Prisoners who were sent to pick up the dead fish suffered contact dermatitis. (Id. at 501.) Nearby residents also suffered contact dermatitis, burning eyes, nausea, headache, coughing and wheezing. (Id.) During this time period, the winds were blowing MITC into the air, and Lake Shasta was being aerated to prevent ecological damage. (Id. at 500.)

The subsequent 1994 medical study of the exposure victims identified 20 individuals who suffered persistent respiratory difficulties induced by the spill (these 20 were classified with a diagnosis of either persistent irritant induced asthma or reactive airways dysfunction syndrome (RADS)) and 10 who were identified as having preexisting asthma which was exacerbated by the spill. (Id. at 503.) This is from a total of 197 patients who were evaluated. (Id.) The first group, which included RADS patients, deliberately did not include the second group because of the pre-existing history of asthma. This was not accidental. The American College of Chest Physicians defines RADS using a seven-element definition which excludes patients with a prior history of respiratory complaints. (Brady Report 9.) Of the first group, only six were treated with either steroids and/or beta-agonists. (Cone, Persistent Respiratory Effects, 505 & table 3.)

As to the second group, it was defined as follows:

(1) Onset of upper respiratory irritative symptoms occurs within 24 hours of initial exposure to MITC and lower respiratory symptoms occur within 1 week of initial exposure. (2) Persistent worsening of asthma symptoms subsequent to the spill usually with changes to medication regime, with symptoms lasting more than 3 months.

(Id. at 502.)

In the Cone study, persistent worsening of asthma symptoms were determined in at least two ways: by the screening of past medical records of the study subjects to determine that symptoms were over the baseline of symptoms experienced prior to the spill and by spirometry testing.⁶ (Id. as 501-02.) The study was also based on exposure modeling which predicted subject exposure to MITC of between 140 to 1,600 parts per billion for a three-day period. (Id. at 506.) This is significant in terms of the toxicity data. The modeling was done consistent with the size of the spill and the reports of nearby residents that the spill omitted a foul odor. MITC has an odor detection limit of 100 to 500 parts per billion. (Id. at 501.) As the exposure climbs toward 10,000 parts per billion, animal subjects have experienced irritation of the eyes and respiratory track. (Id.) For whatever reason, cats are extremely sensitive with mucous irritation occurring at levels as low as 70 parts per billion.⁷ (Id.) MITC has also been shown to be corrosive-a skin and eye irritant in rabbits.⁸ (Id.)

Aside from the Cone study, the Government has also documented two cases of accidental metam sodium exposure in connection with chemical spraying of sewers to control tree roots. Notice of Intent to Cancel Registration, 59 Fed.Reg. 48430, 48432 (Sept. 21, 1994). In one of those cases, in Los Alamos, New Mexico, residents of a home which received the backwash of a sewer treated with metam sodium reported some respiratory injury. Id.

Now back to Mr. Kolesar. Because of the toxicity classification of metam sodium, Plaintiffs employer provided him with a Material Safety Data Sheet ("MSDS") within the meaning of 29 C.F.R. § 1910.1200 (as well as a chemical safety training program and safety equipment). The MSDS stated that appropriate safety gear included safety glasses, a respirator, and rubber gloves. (MSDS 2.) It further provided that when working with hoses and in other tasks associated with chemical exposure, the employee should wear Personal Protective Equipment (a chemical suit, etc.) (Id. at 3.) It also advised that an exposed worker should be immediately cleansed with water and have his or her eyes washed, should don clean clothing and should seek immediate medical care in the event of suspected poisoning, eye exposure or symptoms of inhalation injury (nausea, headache, difficulty breathing, etc.) (Id. at 2.) Although the information on the sheet was furnished by the employer (the trucking company), the technical data on the sheet was furnished to the company and its employees by the manufacturer. (Id. at 1 (manufacturer's address) and 3-4 (manufacturer's disclaimer).)

Now to what Thomas Kolesar did on September 22, 2001 involving metam sodium. The following factual history is taken from the record interpreted in a light most favorable to Plaintiff, even though some of these facts (which are admitted) are not beneficial to Plaintiff. Plaintiff picked up a load of Nemasol 42 (the register trade name for the metam sodium liquid fertilizer) in Cadet, Missouri and transported it to Defendants' facility in Plainfield, Wisconsin. (Kolesar Dep. 193.) When Kolesar arrived at Defendants' facility he was met by Defendants' employee, Bryan D. Cullen. Bryan Cullen was wearing his special Personal Protective Equipment. (Id. at 222-23.) Kolesar likewise knew from his reading of the MSDS that Personal Protective Equipment ("PPE") was required when he used hoses to empty his load because the liquid was corrosive. (Id.) Kolesar was dressed in street clothes—not Personal Protective Equipment⁹ —and was allegedly told by Cullen that it was "no big deal" that he was so dressed. (Id. at 221, 223.)¹⁰ Kolesar and Cullen connected the hose linking the truck...