Viterbo v. Dow Chemical Co.

Decision Date22 October 1986
Docket NumberCiv. A. No. B-83-555-CA.
Citation646 F. Supp. 1420
PartiesJules R. VITERBO, et ux. v. The DOW CHEMICAL COMPANY.
CourtU.S. District Court — Eastern District of Texas

Walter Umphrey, Jeff Branick, Provost, Umphrey, Swearingen & Eddins, Port Arthur, Tex., for plaintiffs.

Leonard Rivkin, Rivkin, Leff, Sherman & Radler, New York City, for defendant.

MEMORANDUM OPINION

COBB, District Judge.

The plaintiff, Jules R. Viterbo, and his wife filed this action on July 6, 1983, seeking monetary relief under the theories of negligence, strict liability, and breach of warranty. The plaintiffs allege in their complaint that the defendant, Dow Chemical Company, manufactured and distributed a herbicide under the trademark label, "Tordon 10K". Plaintiff used this herbicide to attempt to retard the growth of tallow trees on his rural property in Jefferson County, Texas. Plaintiff alleges through his use of Tordon 10K over a five-month period he began to suffer physical and mental ailments, some three months after the plaintiff's exposure to Tordon 10K ceased.

The defendant moved for summary judgment, asserting that the plaintiff has failed to raise any genuine issue of material fact concerning causation, i.e., between the plaintiff's use of Tordon 10K and his alleged injuries. Dow presents two independent arguments, asserting that the plaintiff has failed to raise an issue of fact concerning the necessary element of causation: (1) that there is no epidemiological evidence which shows that Tordon 10K can cause the plaintiff's alleged injuries; (2) that there is no admissible evidence by which the plaintiff can establish causation.

After hearing the parties' arguments, and carefully considering both the law and summary judgment evidence, this court has concluded that the defendant's motion for summary judgment should be granted, and that the plaintiff's complaint be dismissed with prejudice.

I. THE SUMMARY JUDGMENT EVIDENCE

The plaintiffs have attempted to create a causation issue through the testimony of alleged experts. The plaintiffs' total summary judgment proof in this regard consists of the following:

(1) The two-page affidavit of Albert R. Johnson, an osteopath from Dallas, Texas, who was employed by the plaintiffs' attorney. His affidavit is conclusory, recites no factual results of any tests, findings, results, observations, measurements, or any other detailed scientific data, such as an epidemiological survey. It does, however, state what the plaintiffs' counsel contended were the magic words, which per se defeat defendant's motion for summary judgment:

It is my professional opinion, based upon reasonable probability and based upon the history obtained from Mr. Viterbo, as well as the physical examination and testing done on Mr. Viterbo, that his exposure to Tordon 10K caused his physical and emotional problems.

The above quotation from Johnson's affidavit made up the plaintiffs' supplemental response to the defendant's motion for summary judgment, which was filed shortly before the hearing on the defendant's motion for summary judgment. Besides the affidavit, the court has been supplied with the deposition of Johnson, and Johnson's hospital discharge summary concerning Viterbo. In the deposition, Johnson was asked a series of questions concerning Viterbo's exposure to Tordon 10K, and the symptoms which Johnson noted:

Q. What symptoms did he have that you relate directly to exposure to Tordon 10K?
A. He related in his history that he had dizziness, headaches, blurred vision, itching and dryness of his skin, insomnia, that he is unable to sleep, psychological changes where he couldn't think, he felt very sluggish, he was getting mentally confused, and he would get very depressed. He also complained of shortness of breath and weight loss of 30 pounds over a two-month period of time.
* * * * * *
Q. Could these symptoms have any other source, or in other words, could they be caused by anything else, in your experience?
A. Those symptoms can be caused by a multitude of different diseases and processes. From his history he gave me, he sought medical attention, and they could not be diagnosed (sic) any other reason for those to be present.
Q. Okay, could you give me a list of all the potential causes that could cause those; that is, those symptoms?
A. Yeah, there's a list. You know, you read.
Q. Is that about all you can think of right offhand?
A. Oh, no, adrenal disease, many types of adrenal disease, hypoadrenal disease can cause it, inner canal abnormalities can cause it, thyroid disease, diabetes.
Q. Okay. Could he be exposed to anything other than Tordon 10K that would have caused these same symptoms?
A. From his history, he had no other exposures to any chemical, or to anything different than he had been doing in his normal routine of living over the previous few years. The only thing that he had done different in that he had been exposed to of a toxic nature from his history was the Tordon 10K, which he said was spread over these months in 1981.
Q. So, basically, you arrived at all this, then, by his history?
A. Yes.
Q. Okay. Thank you for clearing me up. Now, when he went in out there, did you specify the various tests that were to be done on him?
A. Yes.
Q. And what were those tests?
A. There were numerous tests. I don't have the full hospital list of those tests here; they are in the hospital chart.
Q. Were any of those designed to show or prove any relationship of exposure to Tordon?
A. There was only one, and that was designed to.

The testing was conducted at the Northeast Community Hospital located in Dallas, Texas. The tests were an attempt to diagnose the cause of Viterbo's symptoms.1 The principal test consisted of placing Viterbo in a steel and glass airtight booth for approximately thirty minutes on May 4, 1984. For fifteen minutes, the plaintiff was tested first by a placebo, and then, for the remaining fifteen minutes, the chemical Tordon 10K. An open container of an unspecified amount of Tordon 10K was placed in the booth with plaintiff for fifteen minutes, as it was presumed that the plaintiff would either absorb Tordon 10K and the placebo through his skin or nostrils, or in some other manner, but not by eating or drinking a liquid containing it. The plaintiff exhibited no significant changes or symptoms as a result of exposure to the placebo, or more significantly, the Tordon 10K.

(2) The second expert relied upon by the plaintiffs to create a causation issue is the deposition of a psychologist, Raymond Singer, of New York, who actually solicited employment in the case. The plaintiffs attach to their response eight pages of an over 300-page deposition of Dr. Singer. These excerpts supplied by the plaintiff do not relate to causation in any manner, and it is assumed that if any of the remaining excerpts did relate to causation they would have been supplied. However, it is pointed out in their response that "Dr. Singer's testimony in relation to causation is that it is possible that the substances referred to by defendant to some extent played a part in Mr. Viterbo's injuries."

The plaintiff has also been seen by at least four other doctors who were unable or unwilling to express a medical opinion that there was a causal connection between Viterbo's exposure to Tordon 10K, and the symptoms for which they treated Viterbo. This concludes all the summary judgment offered by the plaintiff.

II. THE SUMMARY JUDGMENT STANDARD

Rule 56(c), FED.R.CIV.P., provides that

Summary judgment shall be rendered forthwith if the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law.

In Fontenot v. Upjohn Co., 780 F.2d 1190 (5th Cir.1986) at 1195, the court noted:

The crucial question for the court to consider is whether there is a genuine issue of fact concerning any essential element of the plaintiff's claim. If the moving party can show there is no evidence whatsoever to establish one or more of the essential elements of a claim on which the opposing party has the burden of proof, trial would be a "bootless" exercise ...

Summary judgment will not lie if the dispute about a material fact is genuine; that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Jack Anderson, et al v. Liberty Lobby, Inc. and Willis A. Carto, ___ U.S. ___, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Unless there exists sufficient evidence favoring the non-moving party for a jury to return a verdict for that party, there exists no issue for trial. Where the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, supra, citing First National Bank of Arizona v. Cities Services Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968).

If the defendant in a run-of-the-mill civil case moves for summary judgment, or for directed verdict based on a lack of proof of material fact, the judge must ask himself not whether he thinks evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient. There must be evidence upon which the jury could reasonably find for the plaintiff.

Anderson, supra ___ U.S. at ___, 106 S.Ct. at 2512. Thus, the summary judgment standard is the mirror of the standard for a directed verdict.

The primary difference between the two motions is of a procedural nature. Summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted.... In essence, though, the inquiry under each is the same — whether the
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