Roberts v. United States

• Decision Date: 18 April 1963
• Docket Number: No. 13706.,13706.
• Parties: Everett Melvin ROBERTS, Plaintiff-Appellee, v. UNITED STATES of America et al., Defendants, and Union Carbide Corporation, etc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Third Circuit

316 F.2d 489 (1963)

Everett Melvin ROBERTS, Plaintiff-Appellee, v. UNITED STATES of America et al., Defendants, and Union Carbide Corporation, etc., Defendant-Appellant.

No. 13706.

United States Court of Appeals Third Circuit.

Argued April 5, 1962.

Reargued November 20, 1962.

Decided April 18, 1963.

Baruch S. Seidman, South River, N. J. (Martin P. Devlin, Jr., Trenton, N. J., on the brief), for appellant.

George Pellettieri, Trenton, N. J. (Pellettieri & Rabstein, Trenton, N. J., and William G. Freeman, Haddonfield, N. J., on the brief), for appellee.

Before McLAUGHLIN and HASTIE, Circuit Judges, and SHERIDAN, District Judge.

SHERIDAN, District Judge.

This is an appeal by defendant-appellant, Union Carbide Corporation, from a judgment entered on a jury verdict in favor of Everett Melvin Roberts, plaintiff-appellee, and from the denial of motions for a directed verdict and a new trial.¹

Plaintiff, 28 years old at the time of trial, brought an action in the United States District Court for the District of New Jersey against Union Carbide Corporation, Dow Chemical Co.² and the United States of America,³ defendants, to recover damages for personal injuries resulting from the negligence of the defendants during the time plaintiff was employed as a mechanic at Lakehurst, New Jersey.

Plaintiff contended defendant manufactured and sold an inherently dangerous substance, ethylene glycol, and failed to warn users of its dangerous nature and its adverse effect on their lives, health and limbs, and that plaintiff suffered severe and permanent injuries which were caused by close contact with and exposure to the ethylene glycol. The jury returned a verdict of $210,000 in favor of plaintiff and against defendant.

This is a diversity case. The district court had jurisdiction under 28 U.S.C.A. § 1332. The substantive law of New Jersey applies.

Defendant's principal arguments on appeal are that the evidence did not establish either a causal relationship or a foreseeable risk, and that the court erred in permitting certain expert testimony.

Plaintiff is entitled to the benefit of every inference which reasonably can be drawn from the evidence most favorable to him. Ayers v. Parry et al., 3 Cir., 1951, 192 F.2d 181. The evidence most favorable to plaintiff supports the following, which we accept. Plaintiff was employed as a mechanic by All American Engineering Co. on premises of the United States at Lakehurst, New Jersey, from January to December, 1957. As part of his duties he worked on hydraulic arresting gear, which was being experimentally tested for use by the United States Navy on aircraft carriers. He tested the gear for leaks by filling it with ethylene glycol and then bleeding it to release residual air. About 350 gallons of ethylene glycol were used in this process. Defendant was the manufacturer of the ethylene glycol, which was delivered in 50-55 gallon drums labelled, "Union Carbide". There was no warning to users.

Each time the gear was filled with ethylene glycol, the valves had to be bled several times. There were six valves, each with a 5/16th inch opening. Plaintiff bled these valves from four to six times on each weekday from February through April. Starting with the lowest valve, plaintiff placed a small container to catch the fluid that ran out as he opened the valve to release the air. As the pressure increased, he bled the upper valves. He opened the top valve, which was at eye level, with a wrench in one hand and caught the fluid in a bucket held in the other hand. First came a puff of air, then a mist or fog of ethylene glycol, and then the fluid. The mist and fluid spurted under 400 pounds of pressure and came in contact with his shoulders and head. Another valve emitted ethylene glycol mist from the stomach area upwards into his face. Mist and fluid from a third valve, also at eye level, sprayed upon his head and shoulders. Fluid from another valve poured into the container at great pressure, causing it to splash on plaintiff's face, chest and arms. A mist or fog of ethylene glycol was present during the entire bleeding operation. While the building in which plaintiff worked had six windows, the only ventilation came from a door when someone entered or left the building.

In June, 1957 plaintiff experienced difficulty with his vision for the first time. In August, 1957 he failed to pass his automobile driver's test because of defective vision. In December, 1957 he was forced to leave his employment at Lakehurst. He worked at odd jobs until December, 1959, but has not been employed since that time.

Plaintiff is suffering from bilateral retrobulbar optic neuritis, or an inflammation of the optic nerve heads in each eye, posterior to and at the entrance to the eyeball. He has lost all vision in his left eye, and has only about 10 to 20 percent vision in his right eye. This condition is irreversible. He also has ceco. central scotoma, or a blind spot in his vision directly in front of him, is afflicted with other nerve and organic disorders, and suffers from severe depression. He is totally and permanently incapacitated with confinement to a wheel chair probable within a year. His life expectancy is not more than 10 years. All of these conditions are the direct result of exposure to ethylene glycol. Prior to employment at Lakehurst, plaintiff was in excellent health.

Defendant attacks plaintiff's expert witnesses because their conclusions were not based on personal knowledge or familiarity with ethylene glycol, and because they had no knowledge of harmful effects from ethylene glycol other than through oral ingestion.

Dr. Lam, a neurologist and neuropsychiatrist who treated the plaintiff, and Dr. Brieger, a specialist in internal, preventive, and occupational medicine, and toxicology, testified without objection to their qualifications. Defendant did not move to strike their testimony. Each had an impressive background and substantial experience in dealing with disorders caused by toxic substances. Each was familiar with literature on the toxic effects of ethylene glycol when orally ingested. Dr. Brieger had performed experiments in which rats were subjected to ethylene glycol mist. While neither knew cases, other than of oral ingestion, in which ethylene glycol had neurotoxic effects, both concluded that plaintiff's disorder was a toxic disease of his nervous system caused by exposure to ethylene glycol. This testimony was for the jury. It was not destroyed because their only experience or knowledge had been with cases of oral ingestion. Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 1951, 190 F.2d 825; 2 Wigmore, Evidence § 569 (3d ed. 1940).

Defendant points to the testimony of Dr. Lam that in all cases of neurotoxic effects from ethylene glycol known to him there was kidney damage, and that he observed no kidney damage to the plaintiff. This is not significant in view of the other testimony. Dr. Lam testified that certain tests made prior to his examination showed that plaintiff had had some kidney injury, but that by the time kidney tests were administered by him, the kidney had regenerated; that the kidney can withstand a considerable degree of insult and recover; and that if the optic nerve is atrophied, it will not regenerate. There was similar testimony by other experts. There was also testimony that there were known cases of death following ingestion of ethylene glycol in which there had been no kidney damage.

Another of plaintiff's expert witnesses, Dr. Bradley, an industrial hygienist and toxicologist, testified that ethylene glycol mist is toxic to human beings. Defendant objected to his competency to testify on the toxicity of ethylene glycol, and on its effect on humans. Dr. Bradley had extensive training and experience in the field of toxicology. This included training in chemistry, two years of scientific work in a medical school, and many years' experience in working with chemical compounds. His entire career had been devoted to toxicology. He had viewed several hundred individuals who had been exposed to various kinds of toxic compounds. He was permitted to testify because of his training in chemistry and related fields and his extensive experience as a toxicologist. This was proper. Stertz v. Briscoe, 1959, 184 Kan. 163, 334 P.2d 357, 70 A.L.R.2d 1021.

Dr. Tassman, who supervised the treatment of plaintiff, testified ethylene glycol was an alcohol and was toxic, but admitted he did not know the toxic factor. He was a physician opthalmologist, specializing in diseases of the eye. He had extensive training and experience.

None of these witnesses stated the reason for the toxicity of ethylene glycol. Through their training and experience, which included training in chemistry and related fields, they had personal knowledge of the facts supporting their conclusions. It was not necessary to detail these facts, particularly since defendant admitted ethylene glycol was toxic,⁴ but rather, this was at the option of the cross-examiner. Sanders v. Glenshaw Glass Co., 3 Cir., 1953, 204 F.2d 436; 2 Wigmore, Evidence §§ 675, 562, 655 (3d ed. 1940).

The qualification of an expert is a matter within the discretion of the trial judge and his decision will be reversed only when it is clearly erroneous. In Trowbridge v. Abrasive Co. of Philadelphia, supra, this court said:

"Defendant contends, however, that this evidence is inadmissible because plaintiff\'s expert was not qualified to testify with respect to practices in the abrasive wheel industry. It is admitted that the expert, one Dr. Peskin, is a graduate engineer, with extensive experience in industry. His specialty is the strength of materials, and he has had considerable theoretical training in that field at Massachusetts Institute of Technology. He was an instructor at that institution, and received his Doctor of Science degree there in 1936. Defendant asserts that Dr. Peskin was not qualified to testify because h

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