Treadwell v. Dow-United Technologies

• Decision Date: 21 March 1997
• Docket Number: Civ.A.No. 95-D-598-N.
• Parties: Thelma Elizabeth TREADWELL, Plaintiff, v. DOW-UNITED TECHNOLOGIES, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

970 F.Supp. 974

Thelma Elizabeth TREADWELL, Plaintiff, v. DOW-UNITED TECHNOLOGIES, et al., Defendants.

Civ.A.No. 95-D-598-N.

United States District Court, M.D. Alabama, Northern Division.

March 21, 1997.

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Charles B. Paterson, Justice D. Smyth, III, Montgomery, AL, for Plaintiff.

David J. Middlebrooks, Steven Michael Stastny, Brent L. Crumpton, Birmingham, AL, for Defendants Dow, Vinson, Rittenberry and Jones.

Armstead Lester Hayaes, III, Montgomery, AL, for Defendant Vinson.

MEMORANDUM OPINION AND ORDER

De MENT, District Judge.

Before the court are the following motions: defendants' motion for summary judgment filed June 14, 1996; defendants' supplemental motion for summary judgment filed January 21, 1997; and, defendants' first motion in limine filed February 18, 1997.¹ On March 12, 1997, the court entered a memorandum opinion and order which denied defendants' motion for summary judgment on plaintiff's claim brought under the Americans with Disabilities Act ("ADA"). The court now takes up defendants' motion for summary judgment on plaintiff's remaining pendent state claims and finds that summary judgment is due to be granted in favor of defendants.

JURISDICTION

Jurisdiction is proper pursuant to 28 U.S.C. § 1331 because plaintiff alleges violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et. seq., Plaintiff also brings state law claims arising from the same transaction and occurrence as the alleged federal deprivation; therefore, the court may assert supplemental jurisdiction over plaintiff's state law claim. See 28 U.S.C. § 1367(a). Personal jurisdiction and venue are uncontested.

FACTUAL BACKGROUND

In the spring of 1993, plaintiff began her employment with defendant Dow-United Technologies Composite Products, Inc. ("Dow-UT"). She trained for four weeks to work at Dow-UT's plant in Tallassee, Alabama, and a small part of her training included a safety course and video on the last evening of training. Trainees were told to wear personal protective gear of gloves and safety goggles and were informed about the existence of books of Material Data Safety Sheets which were kept at supervisors' desks.

After plaintiff completed her training, she was assigned to Dow-UT's plant in Montgomery, Alabama, where helicopter parts are assembled. Specifically, the plant designs, manufactures and markets advanced composite components for aerospace and defense markets. Plaintiff was placed in the Bonding Department, where she was required to handle and work with a low density, syntactic epoxy system known as Epocast 1652-A/B.² Once she was assigned to the Montgomery plant, plaintiff received no further safety training nor was she informed of any serious health risks related to the improper handling or usage of the particular products with which she worked.

On May 12, 1993, while drilling and sanding electrical boxes that contained the epoxy system, plaintiff experienced a serious allergic reaction. She informed her immediate supervisor, defendant Margie Rittenberry ("Rittenberry"), of the reaction and then visited the plant nurse. Plaintiff was diagnosed that same day by the plant doctor as having an "allergic reaction to an unknown substance" and the doctor instructed plaintiff to avoid the offending agent. Rittenberry later completed an Accident Investigation Report for Liberty Mutual Insurance Company, Dow-UT's Workers' Compensation carrier, in which Rittenberry identified the materials suspected of causing plaintiff's illness as "white Epocast."

Plaintiff alleged that upon returning to work, she informed both Rittenberry and Dow-UT's personnel manager Wayne Jones ("Jones") of the plant doctor's instructions to avoid the offending agent. In response, Jones informed plaintiff that she could safely return to work in the Bonding Department as long as she protected herself by wearing a lab coat with sleeve extensions and a full-face respirator. Rittenberry also informed plaintiff she was to return to work in the Bonding Department, telling her that she had "checked with" Jones and that he had said "it would be all right for [plaintiff] to go back to work in Bonding" as long as plaintiff wore the prescribed safety equipment. However, plaintiff found she was unable to wear the full-face respirator because it did not fit properly over her eyeglasses. In lieu of the respirator, Dow-UT provided plaintiff with a full-face shield and dust mask.

During this time, plaintiff met with John Vinson ("Vinson"), manager of the Montgomery plant in order to discuss her ten-day evaluation in which plaintiff's ability to cooperate with her fellow employees was rated unsatisfactory. During the conference with Vinson, plaintiff discussed her safety concerns with Vinson as she described the allergic reaction she had previously suffered and the doctor's instructions that she stay away from the "offending agent." Vinson reassured plaintiff that if she "would do what [she had] been told," then her "equipment [would] take care of [her]." Vinson, however, does not recall plaintiff telling him about her first allergic episode.

Plaintiff experienced another allergic reaction on May 27, 1993, when she was again drilling electrical boxes. Once again, plaintiff was instructed by the plant doctor to avoid the offending agent. After returning to work on May 28, 1993, plaintiff refused to return to the Bonding Department, where there was Epocast dust. In response, Rittenberry attempted to wipe away the dust. Then, Rittenberry and Vinson moved plaintiff to the "tip caps" department, which was the least dust-producing operating in the plant and was located farthest away from the bonding department.

On June 24, 1993, plaintiff suffered yet another allergic reaction. Plaintiff reported to the plant nurse who administered medication to plaintiff, and, plaintiff was able to return to work after approximately 20 to 30 minutes. Upon returning to the tip caps department, plaintiff wore a dust mask and worked with it in place for the balance of the day. At the end of plaintiff's shift on June 25, 1993, Dow-UT's personnel manager, Wayne Jones, terminated plaintiff's employment, explaining to her that while Dow-UT was satisfied with plaintiff's work, she was "too nervous" and not a "good fit" with the aerospace industry.

Plaintiff has since been diagnosed as suffering from an allergy to phenol and formaldehyde, which are both found in Epocast. Her current physician, Dr. Andrew M. Brown ("Brown"), contends that plaintiff continues to suffer from the long term effects of repetitive chemical exposures which occurred during her employment at Dow-UT and that these exposures have resulted in plaintiff's developing multiple sensitivities to other antigens in her environment. Defendants now move to exclude Brown's testimony, arguing that his expert testimony does not comply with the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Plaintiff brings the following state law claims: a workers' compensation claim against Dow-UT; claims of intentional and reckless fraud against Dow-UT, Rittenberry, Jones and Vinson; claims of intentional and reckless suppression against Dow-UT, Rittenberry, Jones and Vinson; and claims of willful co-employee misconduct against Rittenberry, Jones and Vinson. Defendants move for summary judgment on all claims.

I. MOTION TO EXCLUDE TESTIMONY

Before turning to defendants' motion for summary judgment on plaintiff's state claims, the court will first take up defendants' motion to exclude the testimony of Dr. Brown. Defendants anticipate plaintiff will rely on the expert testimony of Dr. Brown, who is an otolaryngologist (an ear, nose and throat specialist) and plaintiff's treating physician. Defendants expect Dr. Brown to testify that (1) plaintiff suffers from a condition known as multiple chemical sensitivity ("MCS"), (2) that MCS is recognized as a legitimate medical condition, (3) that he has the necessary expertise to make such a diagnosis, and (4) that plaintiff contracted this condition as a direct and proximate cause of her exposure to white Epocast while she was employed at Dow-UT. Contending that Dr. Brown is a "clinical ecologist" who lacks a reliable basis for his expert opinion and testimony, defendants argue that Dr. Brown's proposed testimony is inadmissible under the guidelines established in Daubert, 509 U.S. 579, 113 S.Ct. 2786.

In response,³ plaintiff states that Dr. Brown's testimony is not confined to his professional opinion regarding the existence of MCS. Instead, plaintiff expects Dr. Brown to testify concerning his own examination, diagnosis and treatment of plaintiff for her "hypersensitivity to phenol and formaldehyde and the many products which contain those substances as constituent parts." Letter Br. at 2. Additionally, Dr. Brown is expected to testify that plaintiff's hypersensitivity is a direct and proximate response to her exposure to dust created when she drilled into electrical boxes containing a core fill of an epoxy resin (white Epocast) containing phenol and formaldehyde. Id. Finally, plaintiff argues that testing, diagnosis and treatment for phenol or formaldehyde sensitivity has been subjected to publication and peer review and is generally accepted in the scientific community, thereby easily falling within the parameters set by Daubert and Federal Rule of Evidence 702. Id.

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony and provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." When faced with a proffer of expert scientific testimony, the trial...