Mascarenas v. Miles, Inc.

• Citation: 986 F.Supp. 582
• Decision Date: 19 November 1997
• Docket Number: No. 95-0491-CV-W-6.,95-0491-CV-W-6.
• Parties: Dennis MASCARENAS and Maureen Mascarenas, Plaintiffs, v. MILES, INC., a/k/a Chemagro, a/k/a Mobay Corporation, a/k/a Bayer U.S.A., Inc., Defendant.
• Court: U.S. District Court — Western District of Missouri

986 F.Supp. 582

Dennis MASCARENAS and Maureen Mascarenas, Plaintiffs, v. MILES, INC., a/k/a Chemagro, a/k/a Mobay Corporation, a/k/a Bayer U.S.A., Inc., Defendant.

No. 95-0491-CV-W-6.

United States District Court, W.D. Missouri, Western Division.

November 19, 1997.

William H. Pickett, David T. Greis, Kansas City, MO, for Plaintiffs.

Patrick Lysaught, Valeria J. Blevins, Shook Hardy & Bacon L.L.P., Kansas City, MO, James L. Moore, John W. Ghezzi, Holtzman Urquhart & Moore, P.C., Houston, TX, for Defendant.

MEMORANDUM AND ORDER

SACHS, District Judge.

This is a products liability action based upon contentions that plaintiff Dennis Mascarenas contracted an extremely rare form of cancer as a result of alleged exposure to the crop pesticide Guthion 2L ("Guthion") manufactured by Bayer Corporation ("Bayer"), formerly known as Miles, Inc. The exposure allegedly occurred during his employment as a border patrol agent for the United States Border Patrol. In a Memorandum and Order dated July 1, 1997, the court held that plaintiff's claims seeking recovery based on a failure to warn were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136-136y (1982) ("FIFRA"). Plaintiff's remaining claims are brought under theories of strict products liability for defective design and/or manufacture, negligence in design and/or manufacture, and breach of implied warranty by manufacturing/design defect.¹

Defendant has renewed its motion for summary judgment on the remaining claims.² Defendant has also filed a motion to strike or exclude testimony offered by two of plaintiff's expert witnesses. who offered opinions on the causation of plaintiff's cancer. Defendant has also filed a motion to strike portions of plaintiff's response to defendant's motion for summary judgment.

In its summary judgment motion, defendant makes two causation, or cause in fact, arguments. Defendant argues that plaintiff cannot establish that he was exposed to Guthion and that, even assuming that plaintiff could show exposure, he has no medical or scientific evidence establishing that exposure to Guthion probably caused his cancer.³ In response, plaintiff argues that the evidence demonstrates the existence of genuine issues of material fact that preclude granting summary judgment. For the reasons set forth below, the defendant's motion for summary judgment and separate motion to strike two of plaintiff's expert witnesses will be granted and judgment will be entered in favor of defendant.⁴

Standards for Summary Judgment

Courts have repeatedly recognized that summary judgment is a harsh remedy that should be granted only when the moving party has established a right to judgment with such clarity as not to give rise to responsible controversy. New England Mut. Life Ins. Co. v. Null, 554 F.2d 896, 901 (8th Cir.1977). Summary judgment motions are, however, "an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive. determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In the present case, although the proceedings have been time-consuming and tedious, resolution as a matter of law, if sound, will save much time and expense.

The movant bears the initial burden of demonstrating to the court that an essential element of the non-moving party's case is lacking. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53 (1986); Mt. Pleasant v. Assoc. Electric Coop., 838 F.2d 268, 273 (8th Cir.1988). After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53 (1986) (non-moving party must come forward with sufficient evidence to demonstrate that there is a factual controversy as to contested element, or explain why such evidence is not currently available). The non-moving party must demonstrate "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. In all cases, however, the facts must be viewed in the light most favorable to the non-moving party, who must be given the benefit of all reasonable inferences which may be made from the facts disclosed in the record. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Raschick v. Prudent Supply, Inc., 830 F.2d 1497, 1499 (8th Cir.1987), cert. denied, 485 U.S. 935, 108 S.Ct. 1111, 99 L.Ed.2d 272 (1988). The court may thus weed out patently unreasonable concepts and inferences, and cut through obvious confusion between mere possibilities and arguably probable factual conclusions. With these principles in mind, the court turns to an analysis of the defendant's motion.

Undisputed Factual Background

Plaintiff was employed as a border patrol agent for the United States Border Patrol during 1989 and 1990. Plaintiff's responsibilities included patrolling the Texas-Mexico border in an attempt to prevent, detect and apprehend Mexican citizens crossing into the United States. At least part (and perhaps most) of the area that plaintiff patrolled was planted with various crops, although plaintiff's testimony indicates that he rarely actually entered into planted fields either to conceal himself or apprehend illegal aliens. In an effort to control insects and pests, these crops were at various times sprayed with various insecticides and pesticides. Plaintiff was exposed to these chemicals but is naturally unable to recall specific dates or pinpoint exactly how many exposures occurred. Indeed, the evidence reveals at most only two specific occasions. In late July 1989 plaintiff was sprayed by an aerial applicator applying pesticides to a sugarcane field adjacent to where plaintiff was patrolling.⁵ Plaintiff, who had cut his elbows and forearms on the sugarcane, noticed a sticky clear substance on his arms and uniform. Another border patrol agent, Terry Cooper, noticed a yellow plane leaving the general vicinity and testified that plaintiff was "wetted down" with the chemical. Shortly after the drenching incident, plaintiff sought medical attention to treat a body rash, and because he experienced chest pains and difficulty breathing. The other probable exposure to a pesticide or insecticide occurred on an unknown date when plaintiff got an unknown white powder on himself when walking. through a field planted with an unknown crop.⁶

In spring 1993, a tumor was discovered and plaintiff was diagnosed with lymphoplasmocytic neoplasm, a form of cancer. It appears that plaintiff's is the fourth known case in the world. The cancer is treated by plaintiff as being in the lymphoma family, and thus not entirely uncommon. After nasal surgery and treatment, the condition was either cured or in remission. A year or so later, plaintiff conducted an "investigation" to determine what pesticides were being sprayed in crops in the area of southern Texas, more or less the Rio Grande Valley, where plaintiff was stationed. Plaintiff had not previously tried to find out what pesticides he was exposed to when he worked as a border patrol agent, even following the one specific instance in July 1989 after which plaintiff sought medical treatment. Nor had plaintiff previously sought to determine what companies may have been applying pesticides in the area or where or when precisely he may have patrolled.

As part of the investigation, plaintiff sought the assistance of the Texas Department of Agriculture. After plaintiff was unable to identify any particular sugarcane field where plaintiff was sprayed, the Department closed the matter. Plaintiff candidly admits that he realizes that there are a lot of different pesticides—manufactured by a lot of different companies—that are used in the Rio Grande Valley on the various crops. Of all the manufacturers of all the pesticides that plaintiff may have been exposed to, plaintiff eventually settled on Bayer (and Guthion) and initiated suit. According to plaintiff, his investigation revealed that "some of the spraying was produced by Bayer." According to plaintiff's wife (as noted supra, also a plaintiff in this action), they settled on Bayer after talking to a spray pilot at an airfield in the general area where plaintiff patrolled, who informed plaintiff that he sometimes used Guthion on sugarcane.⁷ To date, plaintiff claims no knowledge of what pesticides he was exposed to and by whom (even as to the July 1989 and other specific incident), stating only that he believes he "was exposed to whatever it was they were spraying out there."

Plaintiff has deposed four landowners, two spray pilots and a cotton gin manager. All lived, worked or owned land in or around the Rio Grande Valley during the relevant time period. Woodie Cellum, a landowner, testified that "I didn't use any Guthion on sugarcane" and did not recall whether he used it on cotton. John Holcomb, also a landowner, testified that he does not "recall using any Guthion on my crops" and, in any event, that he "quit spraying in 1987...." In other testimony he said Guthion was used on sugarcane for an unspecified period when Azodrin was taken off the market—again, at an unspecified time. Arthur C. Fuller, a farmer, testified that, although he used it on cotton, "I don't think I ever used Guthion on sugarcane." Jesse Ray Russell, a farmer, testified that to his recollection he had never used Guthion on sugarcane. Michael Yeary, formerly a farmer and now a manager of a gin, testified that as a farmer he used...