McCullock v. H.B. Fuller Co.
| Decision Date | 27 July 1995 |
| Docket Number | D,No. 1188,1188 |
| Citation | 61 F.3d 1038 |
| Parties | 42 Fed. R. Evid. Serv. 1047, Prod.Liab.Rep. (CCH) P 14,286 Geraldine McCULLOCK, Plaintiff-Appellee, v. H.B. FULLER COMPANY, Defendant-Appellant. ocket 94-7883. |
| Court | U.S. Court of Appeals — Second Circuit |
Michael B. Clapp, Dinse, Erdmann & Clapp, Burlington, VT (Diane M. Helland, H.B. Fuller Co., Arden Hills, MN, of counsel), for defendant-appellant.
Lawrin P. Crispe, Crispe & Crispe, Brattleboro, VT, for plaintiff-appellee.
Before: McLAUGHLIN, CABRANES, and PARKER, Circuit Judges.
Geraldine McCullock won a jury verdict for $75,000 in a diversity action for negligence and strict liability in the United States District Court for the District of Vermont (Lee P. Gagliardi, Judge, sitting by designation), against H.B. Fuller Company ("Fuller"), a manufacturer of hot-melt glue. McCullock persuaded the jury that: (1) Fuller failed to warn her about the health hazards associated with the use of its glue; and (2) the glue fumes caused her respiratory health problems, including throat polyps.
On appeal, Fuller argues that the district court: (1) erroneously admitted the testimony of two expert witnesses, neglecting to perform its gatekeeper role laid out in Daubert v. Merrell Dow Pharmaceuticals, Inc., --- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); and (2) improperly denied defendant's motion for judgment as a matter of law.
Because the expert testimony was properly admitted, and because there was sufficient evidence to sustain the verdict, we affirm.
For approximately 16 years Geraldine McCullock toiled at The Book Press, a company that binds and prints books in Brattleboro, Vermont. Then, in 1986, The Book Press began purchasing Fuller's hot-melt glue, HM-949, for use in two of its three binding machines. From 1986 to 1990, McCullock worked as a "pocket filler" on the "HC binder," a binding machine that used Fuller's glue. Her work station was 30 feet from the unventilated "glue pot." McCullock and other employees could smell the glue fumes, especially when the glue pot overheated.
There is no question that Fuller was aware of health problems associated with exposure to the hot-melt glue's vapors. It provided The Book Press with a "Material Safety Data Sheet" ("MSDS") that stated:
If vapors inhaled: Remove subject to fresh air. Call a physician if symptoms persist.
....
EFFECTS OF OVEREXPOSURE
Eyes: Vapors and fumes may cause irritation
....
Inhalation: Vapors and fumes may cause irritation of the nose, throat and respiratory tract.
Chronic: No anticipated chronic effects[.]
Additionally, affixed to each hot-melt glue container was a warning label:
Sometimes unpleasant odors are given off during the melting operation. If the prescribed working temperature is considerably exceeded for a prolonged period, there is a risk of harmful degradation products being produced. Therefore, at the application temperature, we encourage the use of a local exhaust ventilation system over the pre-melt reservoir.
Consult material safety data sheet [MSDS] for this product before using.
Significantly, both warnings noted that there were health problems associated with the glue, and recommended that it be used only with adequate ventilation. Contrary to Fuller's written recommendations, The Book Press did not place a local ventilation system over the glue pot on the HC binder, although During the four years that McCullock worked on the unventilated HC binder, Fuller's representatives regularly visited the bindery. (Fuller representative, Ed Berry, visited the bindery every three to four weeks.) None of the Fuller representatives ever told McCullock personally about the need for ventilation or the glue's health risks. According to McCullock, she never saw the warning label on the glue container because it was not her job to transfer the glue from the container to the glue pot she used. Likewise, she never saw the MSDS.
there were ventilation systems over all its other glue pots.
Between 1986 and 1990, McCullock developed respiratory symptoms, which gradually developed into throat polyps. In September 1988, Dr. David Fagelson surgically removed a vocal cord polyp. McCullock's health problems forced her to quit her job in March 1990. Thereafter, she had polyps removed on three separate occasions. She has also experienced hoarseness, irritation, and thickening of her vocal cords.
In April 1991, McCullock filed this personal injury action in a Vermont state court, against Fuller. Fuller removed the action to the United States District Court for the District of Vermont, pursuant to 28 U.S.C. Sec. 1441. McCullock sued under theories of negligence and strict liability (failure to warn), alleging that unventilated fumes from the hot-melt glue caused her throat polyps and respiratory problems.
The case was first tried in March 1992. McCullock sought to introduce the testimony of two experts, Jack Woolley and Dr. Robert Fagelson. Woolley, a consulting engineer, would opine as to the adequacy of Fuller's warnings about the dangers of the glue fumes. Dr. Fagelson would testify that the glue fumes caused her ailments. The district court (Franklin S. Billings, Jr., Judge ) admitted Fagelson's testimony but refused to qualify Woolley as an expert, finding that he lacked the necessary qualifications to testify about the adequacy of Fuller's warnings.
At the close of McCullock's case, the district court granted Fuller's motion for judgment as a matter of law, holding that a manufacturer had no duty to warn a purchaser's employees about the dangers of its product. We reversed and remanded for a new trial. McCullock v. H.B. Fuller Co., 981 F.2d 656, 658 (2d Cir.1992) ("McCullock I ") () (internal quotation marks omitted). We also held that the district court properly excluded Woolley's proposed expert testimony. In a footnote, however, we noted "if Fuller argues at [the re]trial that McCullock was outside the zone of danger then Woolley should be qualified as an expert if his testimony is so offered." Id. at 658 n. 1. Thus, McCullock I noted that Woolley, while unqualified to testify as to the adequacy of Fuller's warning, was qualified to provide expert testimony regarding whether McCullock was in the breathing zone of the hot-melt glue fumes.
On remand, the case was reassigned to Judge Gagliardi. Before the retrial, notwithstanding the above-mentioned footnote, Fuller filed a motion in limine to exclude the proposed testimony of Woolley (even though his expected testimony would be limited as per McCullock I ) and Fagelson, as well. The district court denied the motion entirely.
At the retrial in July 1994, McCullock established Woolley's credentials, which included: Master of Science degree in Industrial Engineering from Purdue University; courses in plant design and industrial safety; Safety Consultant for Bureau of Industrial Research at Norwich University (fifteen years); experience with issues concerning vapors or fumes in an industrial workplace (a "couple of dozen times"); years of practical experience as a consulting engineer; and experience designing ventilation systems. Woolley then testified that McCullock was within the zone of exposure or the "breathing zone" of the fumes emitted from the unventilated glue pot.
As in the first trial, Dr. Fagelson testified as a medical expert to prove medical causation, i.e., the fumes caused McCullock's injury. His qualifications included: Medical Degree from Loyola University of Chicago and internship at St. Joseph's Hospital in Chicago With reasonable medical certainty my opinion is that Mrs. McCullock's vocal-cord polyps were the result of chronic repeated irritation from fumes resulting from the hot-glue pot; inhalation of the fumes from the hot-glue pot.
(1960); training residency at the Illinois Eye and Ear Infirmary and the Veteran's Administration Hospital in Hines, Illinois; specialty in otolaryngology (diseases of the ears, nose, throat and upper respiratory system) since 1966; certified by the American Board of Otolaryngology in 1966; clinical practice in Brattleboro, Vermont since 1975. He provided the following opinion:
The jury returned a verdict for $75,000 on both the negligence and strict liability counts. Fuller now appeals.
Fuller argues that the district court failed to perform its "gatekeeper" function under Daubert v. Merrell Dow Pharmaceuticals, Inc., --- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Fed.R.Evid. 702. Specifically, it contends that both Woolley and Fagelson were unqualified to testify as experts, and that their opinions were not based on scientific knowledge. We disagree.
The Federal Rules of Evidence permit opinion testimony by experts when the witness is "qualified as an expert by knowledge, skill, experience, training, or education," and "[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine the fact in issue." Fed.R.Evid. 702. Thorny problems of admissibility arise when an expert seeks to base his opinion on novel or unorthodox techniques that have yet to stand the tests of time to prove their validity. Until 1993, the overwhelming majority of courts followed the so-called Frye test and excluded such innovative testimony unless the techniques involved had earned "genuine acceptance" in the relevant scientific community. Frye v. United States, 293 F. 1013 (D.C.Cir.1923).
In Daubert, the...
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