KATIE BONNER VS. ISP TECHNOGIES INC., ET AL.



UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. NO. 00-3458. 259 F.3D 924

Regarding Levels of Exposure:

In this case the 8th circuit court of appeals examined the necessary element of causation. Bonner did not "need to produce" a mathematically precise table equating levels of exposure with levels of harm, in order to show "that she was exposed to a toxic level of foam flush," but only evidence from which a reasonable person could conclude that her exposure caused her injuries. (quoting also Law of Environmental and Toxic Torts, 3rd edition, M. Stuart Madden and Gerald W. Boston, Thomson West, 2005, chapter 8, causation.) This opinion is extrapolated to cases of a new toxic tort claim, where literature regarding this new chemical (or toxin) is not yet available. The injured party has to provide sufficient evidence for a jury that the product was capable of causing her injuries, and that it did [not absolute or mathematical].

Absence of Studies:

"The first several victims of a new toxic tort should not be barred from having their day in court simply because the medical literature has not bee completed (also partially quoting Turner v. Iowa Fire Equipment Co., 229 F. 3d 1202 1208-1209 (8th cir. 2000) (An excellent, lengthy and in depth analysis is provided in Madden and Boston ibd.).

Temporal Relationship:

The court in the Bonner case, examined the experts testimony and its admissibility. Among others the court opined that strong temporal relationship is powerful evidence. The court stated that the immediacy of Bonner's acute symptoms to her exposure made the experts quantify the amount of foam flush to which she was exposed in order to demonstrate that she was exposed to toxic level of BLO. The court opined that it is sufficient for a plaintiff to prove that she was exposed to a quantity of toxin tort "exceeded safe levels". The basis for that court's opinion was a testimony of a witness which testified that Bonner's exposure was of a duration and of a volume sufficient to support a conclusion that she inhaled or absorbed at least a quarter of a teaspoon of foam flush when she was sprayed with it.

So that the exact levels of exposure are not necessary, (and commonly not available in the workplace or at home.) In light of credible testimony of harmful, temporarily related exposure. This opinion makes a lot of sense and is logical. What would a doctor do in the daily practice? Would you, the reader, expect your doctor to tell you "Yes, I understand that your skin was sprayed with this chemical, I understand you developed a skin rash, I have seen the chemical sheets describing such effects, but before I treat you, "I need epidemiological studies," and without "exact levels of exposure, go home, I cannot treat you"? I know it sounds bad, but so do courts who "demand exact levels of exposure and statistical verification".

The Bonner case is important to study and remember, methodology, temporal relationship, generic capability (by either MSDS's or others) and ruling out alternative causes. ISP (Defendant) moved to exclude the other Bonner expert because among others, the expert opinion "was not subject to peer review." The court stated, "ISP's attack on the expert indicate no more that his conclusion is not yet established as fact in the scientific community. ISP has not indicated that any scientific studies or theory indicate that BLO is incapable of causing permanent damage.

So that the absence of evidence is not proof of lack of causation.

The court concluded that since the expert followed a valid scientific methodology, the scientific questions are best addressed by allowing each side to protect its experts and then submit their opinions to the jury.

Take-Home Message:

So again, the methodology is the key and not the conclusion or scientific verification. For example, if a chemical of exposure was studied and shown to be incapable of causing damage, and the expert did not take such studies into account, then a motion to exclude testimony may be more successful. But the mere absence of "levels," "statistics," and "epidemiological studies" are not detrimental to causation as long as the expert follows a scientific medical [in this case medicine] methodology.