Skogen v. Dow Chemical Company

• Decision Date: 30 March 1967
• Docket Number: No. 18452.,18452.
• Citation: 375 F.2d 692
• Parties: Harold N. SKOGEN, David Skogen, a Minor, by Harold N. Skogen, His Father and Natural Guardian, and Douglas Skogen, a Minor, by Harold N. Skogen, His Father and Natural Guardian, Appellants, v. The DOW CHEMICAL COMPANY, a Corporation, and Ralston Purina Company, a Corporation, Jointly and Severally.
• Court: U.S. Court of Appeals — Eighth Circuit

375 F.2d 692 (1967)

Harold N. SKOGEN, David Skogen, a Minor, by Harold N. Skogen, His Father and Natural Guardian, and Douglas Skogen, a Minor, by Harold N. Skogen, His Father and Natural Guardian, Appellants, v. The DOW CHEMICAL COMPANY, a Corporation, and Ralston Purina Company, a Corporation, Jointly and Severally.

No. 18452.

United States Court of Appeals Eighth Circuit.

March 30, 1967.

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Stewart R. Perry, Minneapolis, Minn., for appellants, Walter E. Riordan, Minneapolis, Minn., with him on the brief. the brief.

Donald M. Jardine, of Tyrrell, Jardine, Logan & O'Brien, St. Paul, Minn., for appellee, The Dow Chemical Co., Michael J. Healey, St. Paul, Minn., with him on the brief.

Francis W. Van Eps, of Robb, Robb & Van Eps, Minneapolis, Minn., for appellee, Ralston Purina Co., Raymond W. Fitch, Minneapolis, Minn., with him on the brief.

Before VAN OOSTERHOUT, GIBSON and HEANEY, Circuit Judges.

GIBSON, Circuit Judge.

This is a product liability case concerning the use of an insecticide, Purina Spray and Dip. The jury, in answering a special interrogatory, found no causal connection between the exposure to the insecticide and the severe and permanent injuries suffered by the minor plaintiffs. The Court entered judgment for defendants based upon the special interrogatory to the jury, and the plaintiffs filed a timely appeal.

Plaintiff Harold Skogen initiated this action individually and on behalf of his minor sons, Douglas and David Skogen, ages 13 and 16 respectively. Defendant Ralston Purina Company is engaged in the manufacture and sale of feed and farm products, including insecticides. One of these insecticides is Purina Spray and Dip, which as a primary ingredient contains a chemical known as Ronnel.¹ Ronnel was developed about 1947 by defendant Dow Chemical Company who subsequently manufactured and marketed the product Ronnel to the trade. The particular Ronnel used in the formulation of the Purina Spray and Dip in question was sold to Purina by Dow under the trade name Korlan-8.

On July 17, 1963, Harold Skogen purchased a half gallon of Purina Spray and Dip. His minor sons, David and Douglas, on the afternoon of the same day used this Purina Spray and Dip to kill flies and other insects in the barn and hog house on their father's farm. The spray was mixed with water and used as directed. The spraying of the barn took about 25 to 30 minutes. Both David and Douglas were exposed to the spray mist and their clothing was damp from settling of the spray. Douglas, in addition, had received some direct spray on his person when he was moving the sprayer about and dragging the hose. The boys did not change their clothes until retiring that evening. The boys made no complaint before going to bed that night and showed no visible symptoms of skin irritation, respiratory coughing or dizziness, except complaint was made about the odor of the spray.

David, the older boy, had no symptoms on Thursday, July 18, 1963, or at any time thereafter, until mid-August following. Douglas, however, complained the next morning of being nauseated and he became dizzy while driving the tractor that afternoon. On Friday, July 19, Douglas was suffering from chills and was further lethargic. On Saturday, Douglas lay in the house all day and was listless. On Sunday, he started to vomit and his parents took him to the doctor. Dr. Metcalf saw Douglas again on Monday and referred him to the University of Minnesota Hospital. The examination at the hospital on Monday showed Douglas with a fever of 102° coupled with drowsiness. Examination of his eyes was negative. There was no unusual tearing to the eye ducts, no unusual salivation or drolling in the mouth, nor was there any tremor or twitching of his body. His chest was clear, with no inflammation of the lungs. Heart beat was regular and the reflexes were negative. He complained of fever and aching in his arm and leg muscles. On July 22, 1963, his symptoms had increased and he was delirious, but his breathing and respiration were still normal. Dr. Metcalf made a tentative diagnosis of encephalitis. There was some testimony from Harold Skogen that Douglas had a lot of saliva on his mouth on the previous Saturday. This fact, however, was not mentioned in Harold Skogen's pre-trial deposition and his testimony is the only direct evidence of excessive salivation. Dr. Metcalf, the attending physician, never offered any opinion on the causal connection between Purina Spray and Dip and Douglas's condition. Douglas, when he entered the hospital, was placed in the communicable disease section.

As a result of his condition, Douglas suffered substantial brain damage, advanced intellectual deterioration and permanent severe psychotic reaction, requiring custodial care for the remainder of his life.

David Skogen did not notice any illness following the spraying of July 17, 1963. On August 15, 1963, Harold Skogen, David's father, sprayed the barn once again using the Purina Spray and Dip. After the spraying was completed, David entered the barn and worked there for about 45 minutes. Two days later, David began to feel sick. This progressed into chills, malaise and vomiting. He was admitted to the hospital on August 21, 1963. David suffered brain damage which resulted in some personality change, but he did not suffer damage to the extent of his brother Douglas.

Because of the tragic and permanent injuries suffered by the Skogen boys, we have examined in detail the evidence presented on their injuries, the medical diagnosis of their condition and the causal connection, if any, of the insecticide with their condition. As noted by the experienced trial judge, the case presents essentially a factual issue on causation. Since no causation was found, the issues of warranty and negligence and the other defenses urged by the defendants were not reached. This case was extensively and aggressively tried and defended during seventeen trial days, with the jury being called upon to consider voluminous medical and scientific testimony, the medical testimony being directed toward the condition of the boys and their symptoms as either evidencing viral encephalitis or organo-phosphate poisoning. The scientific evidence dealt with the properties of Ronnel, which the defendants admit is, at least, a mild cholinesterase inhibitor, belonging to that class of compounds known as organo-phosphates, while the plaintiffs contend that a chemical phenomenon known as P=O Bond causes the chemical to become highly toxic. This presented initially the basic question of diagnosis to the jury. Did the Skogen boys suffer from viral encephalitis or a toxic organo-phosphate poisoning arising out of an overexposure to a cholinesterase inhibitor?²

In the trial of this case, plaintiff offered evidence indicating that Douglas and David suffered from organo-phosphate poisoning caused by a highly toxic P=O compound in the Purina Spray and Dip. Defendants' evidence indicated that Purina Spray and Dip contained no P=O compound and was of very low toxicity. Furthermore, the evidence of defendants indicated that the Skogen boys suffered from a viral disease known as viral encephalitis and for this reason their condition could have had nothing to do with the exposure to the Purina Spray and Dip.

Plaintiffs do not contend that there was insufficient evidence to support the finding of the jury, as indeed they could not, as the evidence supporting defendants' position appears persuasive. Nor do plaintiffs object to the trial court's application of the law as set forth in the instructions to the jury. Plaintiffs predicate this appeal on numerous objections to the way the trial was conducted.

As a general summary, plaintiffs object to not being allowed to cross-examine two witnesses under Rule 43(b), Fed. R.Civ.P. They object to the allegedly critical remarks and the contempt action taken by the trial court against plaintiff's trial counsel. Plaintiffs contend undue restriction in the cross-examination of numerous witnesses. Plaintiffs object to the admission of various pieces of evidence and to the exclusion of other evidence. Plaintiffs also complain of the conduct of defense counsel. Plaintiffs object to the trial court's refusal to allow rebuttal evidence and the refusal to allow reopening of the case to present additional testimony. Finally, plaintiffs object to certain comments made by the trial court during the final charge to the jury. Numerous as these objections are, we find no reversible error. The judgment of the trial court is affirmed.

To begin, we must note the overwhelming nature of the evidence that supports the jury's verdict. Without going into the maze of technical data, the great weight of the evidence indicated that the chemical Ronnel and Purina Spray and Dip were low in toxicity to humans, though it is an economic poison effective in killing flies and similar insects. Poisoning of the Skogen boys does not appear probable from a chemical of such low toxicity.³ Secondly, and more importantly overexposure to chemicals causing organo-phosphate poisoning has definite symptoms. Viral encephalitis has definite symptoms which differ markedly from symptoms of organo-phosphate poisoning. The overwhelming weight of the medical evidence indicated that the Skogen boys had all of the symptoms of viral encephalitis, which symptoms would not be found in a case of organo-phosphate poisoning. The conclusion is inescapable that the evidence does not show the boys suffered from organo-phosphate poisoning as they alleged.⁴

Analysis of medical and related evidence persuasively shows that Douglas and David did not suffer from the symptoms that a cholinesterase inhibitor or an organo-phosphate compound is capable of inducing.

All of the medical evidence in the record is in accord as to the symptoms of viral encephalitis, as distinguished from the symptoms of organo-phosphate...