Mills v. State Sales, Inc.

• Decision Date: 10 June 2003
• Docket Number: No. 2001-82-Appeal.,2001-82-Appeal.
• Citation: 824 A.2d 461
• Parties: Geraldine MILLS, M.D. v. STATE SALES, INC., et al.
• Court: Rhode Island Supreme Court

824 A.2d 461

Geraldine MILLS, M.D. v. STATE SALES, INC., et al.

No. 2001-82-Appeal.

Supreme Court of Rhode Island.

June 10, 2003.

Geraldine Mills, pro se, Judith I. Scott, Warwick, Robert A. Scott, Westerly, for Plaintiff.

Steven John Deluca, Providence, Kevin M. Daley, Warwick, Paul V. Reynolds, John W. Kershaw, John G. Hines, Carol Nicholson Glick, Providence, for Defendant.

Present: WILLIAMS, C.J., FLANDERS and GOLDBERG, JJ.

OPINION

PER CURIAM.

The plaintiff, Geraldine Mills, M.D. (plaintiff), appeals pro se from a summary judgment entered in favor of defendant, Robert F. Weisberg (Weisberg). She also appeals from a judgment as a matter of law entered in favor of State Sales, Incorporated (State Sales), Beaulieu of America, Incorporated (Beaulieu), and Gloria Nahabedian (Nahabedian) (collectively referred to as defendants).

This case came before the Supreme Court for oral argument on April 9, 2003,¹ pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and proceed to decide the appeal at this time. For the reasons set forth herein, we affirm the judgments of the Superior Court.

I Facts and Travel

The plaintiff is a pediatrician who maintained her practice in an office that she rented from Nahabedian. In March 1996, a leak from an upstairs office damaged the carpeting in plaintiffs office. On July 16, Nahabedian replaced the carpet with one that was manufactured by Beaulieu and sold and installed by State Sales.

The plaintiff alleged that the replacement carpet emitted toxic fumes that caused her and her patients to become ill. She described her symptoms as dizziness, scratchy throat, vertigo, headache, and pressure in her ears. The plaintiff contacted defendants to inform them of the alleged problems with the carpet, but she says that they failed to correct the situation. As a result of the alleged noxious fumes and odors emanating from the carpet, plaintiff says she was forced to vacate the office on August 9, 1996. In vacating the office, plaintiff removed all her belongings, including her furniture and her patients' medical files. In a separate case, plaintiff filed suit against Nahabedian for constructive eviction.

The plaintiff contacted the Department of Health (department) to express her concerns about the fumes emitted from the carpet. On August 14, 1996, the department sent Weisberg, an employee of Environmental Monitoring and Training, Incorporated, to plaintiff's vacant office. Weisberg conducted air quality testing and removed a section of the carpet for further testing. Weisberg's tests failed to reveal the presence of any toxic substances or fumes.

The plaintiff says that on June 3, 1998, she learned that belongings she removed from her office may have been contaminated by the fumes allegedly emitted from the carpet. In July 1999, plaintiff filed the instant action against Weisberg and defendants, contending that the carpet was defective and/or chemicals were negligently applied to the carpet, thereby causing her personal injuries. Additionally, plaintiff argued that Weisberg's negligent testing of the office and the carpet led to her prolonged exposure to the alleged toxins. Specifically, she argued that if Weisberg had detected the toxins, she could have minimized her injuries by discarding the medical files she removed from the office, which she says absorbed the toxic fumes while they were in the office. On February 16, 2000, plaintiffs case against Nahabedian for constructive eviction was consolidated with her case against Weisberg and defendants.

In October 2000, Weisberg moved for summary judgment, pointing to an absence of any evidence that his alleged negligence proximately caused plaintiffs injuries. He further asserted that plaintiff presented no evidence of the nature of the toxic substance that allegedly harmed her and that he never was asked to test any of the materials that were taken from the office that plaintiff alleged contributed to her injuries. At the hearing, plaintiff said that she was diagnosed as having been exposed to toxic substances that were absorbed into her belongings from the carpet. However, she did not present any expert evidence to support her case. Because plaintiff did not present sufficient evidence of a causal relationship between her alleged injuries and Weisberg's alleged negligence, the hearing justice granted summary judgment in favor of Weisberg. That judgment was certified pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure. In December 2000, plaintiff filed her first appeal to this Court from the grant of summary judgment in favor of Weisberg. She continued to pursue her personal injury claims against the remaining defendants in Superior Court.

In March 2001, the hearing justice scheduled a trial for September 4, 2001, on plaintiffs claims against defendants. At that time, the hearing justice also crafted a pretrial order that carefully outlined the schedule for various discovery and other pretrial matters. The plaintiffs legal counsel at that time, Damon D'Ambrosio, Esquire (D'Ambrosio), and defendants agreed to adhere to the provisions in that order.

Shortly thereafter, the relationship between plaintiff and D'Ambrosio began to deteriorate and D'Ambrosio filed a motion to withdraw. The hearing justice heard D'Ambrosio's motion on July 9, 2001. D'Ambrosio testified that plaintiff repeatedly harassed him and questioned his competence and commitment to her. The plaintiff acknowledged that her relationship with D'Ambrosio had been troubled in the past but believed it had been "patched up." Nevertheless, the hearing justice permitted D'Ambrosio to withdraw. On July 20, plaintiff retained attorneys Robert Scott and Judith Scott. Thereafter, she moved for a continuance of the September trial date. That motion was heard on July 27. At the hearing, plaintiff argued that she needed a continuance to properly respond to defendants' discovery requests and to review scientific data to ensure its admissibility at trial. She further requested additional time to retain an expert because the deadline for identifying expert witnesses that was set forth in the March pretrial order had passed. The hearing justice refused to grant the continuance. She did, however, grant plaintiff four days to identify her experts and relaxed other discovery deadlines to accommodate the fact that plaintiff had recently retained new counsel.

Seizing the opportunity to retain experts for her case, plaintiff enlisted Kenneth Reed, Ph.D. (Dr. Reed), and toxicologist Joseph Regna, M.D. (Dr. Regna), as expert witnesses. Doctors Reed and Regna were deposed in August 2001. Based on their deposition testimony, defendants requested a hearing to challenge the validity and relevance of the experts' proposed trial testimony pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and DiPetrillo v. Dow Chemical Co., 729 A.2d 677 (R.I.1999). Thereafter, plaintiff filed a motion to replace Dr. Regna out of concern over his efficacy as an expert witness. The plaintiff, however, decided to "work with" Dr. Regna and quickly withdrew her motion.

When the case was reached for trial on September 4, 2001, the hearing justice conducted a pretrial Daubert hearing. Doctor Reed testified first. He said that he had not tested the actual carpet in plaintiffs office. However, based on a mathematical model, Dr. Reed concluded that the carpet in plaintiffs office emitted volatile organic compounds (VOC), including hexane. He further testified that 55 percent of carpets he had tested contained hexane. Based on these facts and the presence of hexane in plaintiffs blood without an alternative explanation, Dr. Reed opined that the carpet emitted hexane. On cross-examination, however, Dr. Reed admitted that he could not state with certainty whether the carpet was the source of plaintiffs exposure to hexane and the cause of her injuries. He also admitted that he was the only person to use his particular mathematical model to quantify hexane emissions from carpets.

Next, plaintiff presented Dr. Regna to establish a causal relationship between the emitted toxins and her health problems. Doctor Regna testified that, based on the onset of the symptoms suffered by plaintiff and after having "investigated some of the literature," he concluded that she had been exposed to VOCs. However, when asked about hexane exposure in particular, Dr. Regna was unable to answer questions about the level of exposure necessary to cause plaintiff's physical symptoms or the length of time the symptoms would last after exposure had ended.

After plaintiff concluded her direct examination of Dr. Regna, but before defendants cross-examined him, plaintiff asked for a continuance. The plaintiff alleged that Dr. Regna was unable to offer an expert opinion in a manner that would be helpful to the jury and requested the continuance to retain a new expert. The only expert plaintiff identified to help her case, however, was one whom she acknowledged she could not afford to hire. The hearing justice refused to grant the continuance but did allow plaintiff to continue with direct examination of Dr. Regna during the Daubert hearing.

Upon further examination, Dr. Regna commented on certain articles describing the effects of hexane exposure to rats. He also noted that blood can be saturated with hexane within ten minutes of exposure. Doctor Regna admitted, however, that his opinion about the cause of plaintiff's injuries was not based on those articles. Rather, he said the articles "buttressed" his previous opinion. He further admitted that he could not say whether the amount of hexane plaintiff allegedly was exposed to caused her...