Turner v. Iowa Fire Equipment Co.

Decision Date11 May 2000
Docket NumberINC,KIDDE-FENWA,No. 99-3431,99-3431
Citation229 F.3d 1202
Parties(8th Cir. 2000) DELORES F. TURNER; RUSSELL TURNER, PLAINTIFFS - APPELLANTS, v. IOWA FIRE EQUIPMENT COMPANY, AN IOWA CORPORATION, DEFENDANT - APPELLEE. IOWA FIRE EQUIPMENT COMPANY, THIRD PARTY PLAINTIFF - APPELLEE, v.THIRD PARTY DEFENDANT - APPELLEE. Submitted:
CourtU.S. Court of Appeals — Eighth Circuit

Appeal from the United States District Court for the Western District of Missouri

[Copyrighted Material Omitted] Before Richard S. Arnold, Hansen, and Bye, Circuit Judges.

Bye, Circuit Judge.

Delores and Russell Turner appeal the adverse grant of summary judgment in their personal injury action 1 against Iowa Fire Equipment Company (Iowa Fire). The district court, 2 after excluding the causation opinion of Delores Turner's treating physician, granted summary judgment on all claims brought by the Turners. We affirm.

BACKGROUND

Because this is an appeal from the grant of a summary judgment, we view the evidence in the light most favorable to the Turners. We also give the Turners the benefit of all reasonable inferences to be drawn from the evidence. See Lindsey v. Jewels by Park Lane, Inc., 205 F.3d 1087, 1091 (8th Cir. 2000).

Delores Turner worked in the deli area of the Hy-Vee Store in Trenton, Missouri. On January 6, 1995, Iowa Fire performed a routine inspection of the deli's fire suppression equipment, which included an extinguisher system located in the hood above the grill where Delores worked. Before the Iowa Fire employees left, the system accidentally activated. A white, powdery substance composed primarily of sodium bicarbonate (baking soda) discharged throughout the deli, covering Delores. She attempted to wash the powder off her skin, then returned to work. The powder still lingered in the air.

Delores experienced shortness of breath, itchy skin, and a headache, which prompted her to call her family physician about an hour after the discharge. He recommended that she take Benadryl. She did. Delores then finished her shift, continuing to breathe in the substance for several more hours.

Delores developed a skin rash after the exposure. At various times during the ensuing month, Delores suffered from blisters in her mouth and nose, black discharges from her nose, head pain, and shortness of breath. She also spit up green mucus. Persistent nose bleeds, occurring as often as two or three times a day, started about a month later. Delores discussed these symptoms with her family physician on February 10, 1995, during a previously scheduled appointment on an unrelated matter. Her physician told her she should see a specialist, but did not refer her to another doctor.

Following the visit to her family physician, Delores requested her employer to provide her with a referral to a specialist. Her employer's workers' compensation carrier selected Dr. David Hof, a specialist in pulmonary diseases. Dr. Hof began treating Delores in March 1995. Dr. Hof diagnosed Delores as suffering from a hyperreactive airway disorder, similar in nature to either reactive airways dysfunction syndrome (RADS) 3 or occupational asthma (OA) 4.

Delores continued to suffer from respiratory problems, including shortness of breath and hypersensitivity to certain airborne agents, such as perfumes, smoke, and cleaning agents used at home and work. Dr. Hof felt that the condition was particularly aggravated by cleaning agents used at the deli, and ultimately recommended that Delores take some time off from work to allow her airways to heal.

In November 1997, Delores brought this personal injury action against Iowa Fire to recover for her lost wages and injuries, including her ongoing respiratory problems. Iowa Fire brought a third-party action against Kidde-Fenwal, Inc. (Kidde-Fenwal), the manufacturer of the fire extinguisher involved.

The parties deposed Dr. Hof, who proffered his opinion that Delores's reactive airways disorder was caused by her exposure to the chemicals from the fire extinguisher discharge. Dr. Hof based his opinion in part upon the medical history he obtained from Delores (indicating that she had not suffered respiratory problems prior to the fire extinguisher incident), and in part upon the temporal relationship between the fire extinguisher incident and the onset of symptoms.

Dr. Hof acknowledged, however, that he had not determined whether any other factors may have caused or contributed to Delores's respiratory problems, such as repetitive exposure in the workplace to flour dust, or ammonia-based cleaning products (both shown to be responsible for causing OA), or repetitive exposure to fumes, chemicals, or cigarette smoke at home (Russell Turner smoked).

Dr. Hof also acknowledged that he had made no direct effort to determine what caused Delores's medical condition, or what specific ingredient in the extinguisher could have caused a reactive airway disorder:

Q. Is it a fair statement that as a treating provider you're not nearly as concerned as to what caused specifically the respiratory complaints to initiate, rather, you are in the role of someone who is trying to treat and limit or eliminate the complaints; is that right?

Hof: That's correct.

. . .

Q. And what you're telling us today is that you made no specific effort to look at, for example, the ingredients in the product to see which of those ingredients might have caused airway or respiratory irritation to De Turner, correct?

Hof: No, I did not.

. . .

Q. Is there some reason that you haven't . . . undertaken any kind of analysis to determine whether the ingredients in this product have ever been shown to produce OA or RADS?

Hof: That's not my job definition.

Q. And that's because you're the treating physician as opposed to someone who is charged with ascertaining the cause of the complaints; is that right?

Hof: You're very astute.

Not until his deposition (March 1999) did Dr. Hof proffer the opinion that baking soda could have caused the reactive airway disorder. Until then, Dr. Hof had only once identified a specific substance as the likely cause of Delores's condition. In an early (March 21, 1995) letter to the workers' compensation insurer, Dr. Hof stated that

I have reviewed your note of March 17, listing several of the agents to which [Delores] was exposed in January. The NH4H2PO4 appears to be the agent that would be most likely to injure her airways, releasing both a phosphorous acid and ammonia, which can be quite irritable to the lining of the airways, combining with the water of the lining, producing an acid burn topically, which could cause enough chronic inflammatory injury to result in her present problems.

Dr. Hof relied upon a Material Safety Data Sheet (MSDS) sent to him by the workers' compensation insurer. The MSDS applied to an extinguisher manufactured by Ansul Fire Protection, not the Kidde-Fenwal extinguisher involved here. Both Kidde-Fenwal and Ansul extinguishers are composed primarily of baking soda, and neither contains NH4H2PO4. The Ansul MSDS listed NH4H2PO4 under "Physical Hazards" (agents that are incompatible with the fire extinguisher's ingredients). Dr. Hof apparently misread the Ansul MSDS and concluded that NH4H2PO4 was an ingredient, rather than a hazardous combinant.

Only when Dr. Hof was confronted with the mistake during his deposition did he conclude that exposure to baking soda could cause respiratory problems:

The only other thing I could also think that I haven't said is that I would think common baking soda in a large enough concentration could probably combine with the airway water and produce carbonic acid that could be irritating to the surface.

Experts testifying on behalf of Iowa Fire and Kidde-Fenwal indicated that baking soda never becomes acidic when mixed with moisture (but rather weakly alkaline), and that baking soda would not burn or irritate tissue when mixed with moisture.

Iowa Fire and Kidde-Fenwal brought a joint motion to strike Dr. Hof's opinion that baking soda caused Delores Turner's reactive airway disorder. They contended that Dr. Hof's opinion was not scientifically reliable under the standards set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993).

The Turners responded by contending that Daubert did not apply to Dr. Hof's causation opinion because he was a treating physician/fact witness. The Turners also argued that, even if Daubert applied, Dr. Hof's opinion was based on a differential diagnosis and therefore should be admitted. The Turners also presented literature that purportedly establishes a sufficient link between baking soda and respiratory problems, thereby rendering Dr. Hof's opinion scientifically reliable.

As the basis for the scientific link between baking soda and respiratory problems, the Turners offered a Poisondex reference for sodium bicarbonate stating that "[p]ulmonary irritation may occur following inhalation." The Turners also presented an abstract of two case reports which suggested a link between RADS and exposures to high levels of "nonimmunogenic irritants." Finally, the Turners relied upon the MSDS for the Kidde-Fenwal fire extinguisher, which said "[b]reathing dust may irritate the noise [sic] and throat and cause coughing and chest discomfort." The MSDS also stated that "Respiratory Disease including Asthma and Emphysema" were medical conditions "generally aggravated by exposure." Dr. Hof did not rely upon any of those items to form his opinion that baking soda caused Delores Turner's reactive airway disorder.

The district court concluded that Dr. Hof's causation opinion did not satisfy Daubert's standards of scientific reliability, and granted the motion to strike the opinion. Having excluded Dr. Hof's causation opinion, the district court further concluded that no other evidence established a causal connection between the extinguisher...

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  • Commonly Used Experts
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    ...of cases relating to the admissibility of novel expert opinion in toxic tort cases and relied on Turner v. Iowa Fire Equip. Co. , 229 F. 3d 1202, 1209 (8th Cir. 2000), Heller v. Shaw Indus. , 167 F. 3d 146, 155 (3d Cir. 1999), Bednar v. Bassett Furniture Mfg. Co., 147 F. 2d 737, 749 (8th Ci......
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    • August 4, 2015
    ...664 (D. Colo. 1997), §203 Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal. 1995), §§593.2.1, 613 Turner v. Iowa Fire Equip. Co ., 229 F. 3d 1202, 1209 (8th Cir. 2000), §531.1 Turpin v. Sortini , 31 Cal. 3d 220, 229-230, 182 Cal. Rptr. 337, 643 P.2d 954 (1982), §102.2 TV-3, Inc. v. Ro......
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    ...of cases relating to the admissibility of novel expert opinion in toxic tort cases and relied on Turner v. Iowa Fire Equip. Co. , 229 F. 3d 1202, 1209 (8th Cir. 2000), Heller v. Shaw Indus. , 167 F. 3d 146, 155 (3d Cir. 1999), Bednar v. Bassett Furniture Mfg. Co., 147 F. 2d 737, 749 (8th Ci......
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    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2016 Contents
    • August 4, 2016
    ...664 (D. Colo. 1997), §203 Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D. Cal. 1995), §§593.2.1, 613 Turner v. Iowa Fire Equip. Co ., 229 F. 3d 1202, 1209 (8th Cir. 2000), §531.1 Turpin v. Sortini , 31 Cal. 3d 220, 229-230, 182 Cal. Rptr. 337, 643 P.2d 954 (1982), §102.2 TV-3, Inc. v. Ro......
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