Opinion
Civil Action No. 03-CV-1372.
May 12, 2004
MEMORANDUM ORDER
Presently before the Court is Defendant, Ecolab, Inc.'s Motion to Exclude the Testimony of Dr. Michael J. Coyer (Doc. No. 22), Motion to Exclude the Testimony of Dr. Burton Z. Davidson (Doc. No. 23), and Motion for Summary Judgment (Doc. No. 24). For the following reasons each of Defendant's Motions will be denied.
Background
This case concerns the cause of severe burns sustained by Plaintiff, Ryan Westley while cleaning the kitchen floor at Shoobies Restaurant in Sea Isle City, New Jersey. On July 25, 2001, Plaintiff was preparing to clean the floor at Shoobies using Oasis 115XP, a cleaning solution manufactured by Defendant. (Compl. ¶ 10.) The cleaning product was dispensed from a dispenser called the Oasis II, which mixed water with the cleaning product to form a solution. ( Id. ¶ 11.) The dispenser is designed to allow the user to push a button that mixes concentrated 115XP with water in a bucket. The concentration of the solution can be changed based on how the dispenser is installed. In order to fill a mop bucket with solution, Plaintiff placed a hose connected to the dispenser and the hot water heater, into a bucket, and then pressed the button on the dispenser to mix the water with the cleaning product which flowed into the bucket. ( Id. ¶ 12.) Plaintiff left the hose in the bucket, allowing it to fill with solution, and left the area to complete other tasks. Upon returning to the bucket, Plaintiff found the bucket almost completely filled to the top. Recognizing that solution would spill on the floor if a mop was placed in the bucket, Plaintiff lifted the bucket up to the sink and began pouring some of the solution into the sink. ( Id. ¶ 16.) During the process of pouring the solution into the sink, some of the solution spilled onto Plaintiff's thighs, lower legs, ankles, and feet. Plaintiff did not feel any immediate pain and he began mopping the floor. Within four to five minutes, Plaintiff felt a horrible burning on his feet and ankles. ( Id. ¶ 19.) Plaintiff removed his shoes and socks and began to douse the affected areas in cold water. The skin on his feet and ankles had already begun to peel and blister. ( Id. ¶ 20.)
An ambulance was called and Plaintiff was taken to Burdette Tomlin Memorial Hospital. Plaintiff was then transferred, via ambulance, to the burn unit of St. Agnes Medical Center. At the hospital the damaged skin was debrided. The next day, doctors in the burn unit performed a skin graft. The doctors removed skin from Plaintiff's upper thighs and grafted it to his ankles and feet. ( Id. ¶ 27.) Plaintiff was hospitalized for approximately ten days. ( Id. ¶ 28.) As a direct result of this incident, Plaintiff sustained injury and received treatment as follows: second and third degree burns of both feet and ankles; surgery involving excision of burned tissue and skin grafts, permanent scarring measuring 15 x 13.5 centimeters at the site where skin was taken from Plaintiff's upper thigh; permanent scarring measuring 13.5 x 6.5 centimeters upon the medial aspect of Plaintiff's right foot; permanent scarring measuring 12 x 4.5 centimeters upon the medial aspect of Plaintiff's left foot; permanent hypertrophy and pigment changes to the affected areas; and permanent itching of the affected areas.
Defendant is in the business of designing, manufacturing, marketing and selling the cleaning product known as Oasis 115XP, and the mechanism for dispensing Oasis 115XP called the Simplex Dispenser ("dispenser"). ( Id. ¶ 5.) In the course of its business, Defendant sold and installed a dispenser for the Oasis 115XP product, which was being used at Shoobies on July 25, 2001.
In the Complaint, Plaintiff refers to Defendants as Ecolab, and John Does (1-10), ABC, DEF, GHI and JKL who are fictitious individuals and entities, whose identities are presently unknown. (Compl. ¶ 3.) We refer to Ecolab as Defendant.
On January 28, 2003, Plaintiff filed this lawsuit against Defendant in the Court of Common Pleas of Philadelphia County alleging negligence and strict liability. On March 3, 2003, the matter was removed to this Court. Plaintiff asserts that the product manufactured by Defendant caused his injuries. Plaintiff contends that "Defendant had the duty to adequately and reasonably advise and instruct the foreseeable users on the safe and proper use of products and warn foreseeable users of the dangers associated with the use of the products." ( Id. ¶ 35.) Plaintiff contends that Defendant breached this duty, causing the injury that Plaintiff sustained. Alternatively, Plaintiff contends that Defendant's products, used by Plaintiff, were "not reasonably fit, suitable or safe for their intended purposes, and were in a defective condition and unreasonably dangerous to the user or consumer." ( Id. ¶ 43.) Defendant contends that the Oasis 115XP use solution did not cause Plaintiff's injuries. Defendant contends that testing of its product demonstrated that it could not caused these burns. Defendant points to several of the medical records and argues that Plaintiff's injuries are consistent with thermal burns caused by boiling or scalding water.
In support of the argument that Defendant's products caused Plaintiff's injuries, Plaintiff intends to offer the expert testimony of Dr. Michael J. Coyer and Dr. Burton A. Davidson. Defendant contends that this expert testimony should be excluded under Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Defendant also contends that because this expert testimony is not admissible, we should grant summary judgment in favor of Defendant, there being no issue of material fact. FED. R. CIV. P. 56(c). Plaintiff argues that both experts are qualified, and that their testimony will assist the trier of fact.
Discussion
Under the Federal Rules of Evidence, the trial judge must ensure that any and all scientific testimony or evidence is not only relevant but reliable. Daubert, 509 U.S. at 590. Specifically, Rule 702 provides that:
If 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, if (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case.
FED. R. EVID. 702. In Daubert, the Supreme Court said that determining whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact involves a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in this case." 509 U.S. at 592-93.
In applying Daubert, the Third Circuit instructs that Rule 702 requires a district court to assess an expert's "qualifications" and the "reliability" of the proposed testimony. Oddi v. Ford Motor Co., 234 F.3d 136, 145 (3d Cir. 2000); In re Paoli Railroad Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994). In assessing the "reliability" of the testimony, the factors to be considered are:
(1) whether a method consists of a testable hypothesis; (2) whether the method has been subjected to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put.Id. (citing Paoli, 35 F.3d at 742 n. 8). "The test of admissibility is not whether a particular scientific opinion has the best foundation or whether it is demonstrably correct. Rather, the test is whether `the particular opinion is based on valid reasoning and reliable methodology.'" Oddi, 234 F.3d at 145-46 (quoting Kannankeril v. Terminix Int'l Inc., 128 F.3d 802, 806 (3d Cir. 1997). In addition, even if the expert's methodology is found to be sufficient, to be admissible the testimony must also be found to assist the trier of fact. Paoli, 35 F.3d at 743.
In making a determination as to whether an expert is qualified to give testimony, the Third Circuit has stated that: "Rule 702 requires the witness to have `specialized knowledge' regarding the area of testimony. . . . `[A]t a minimum, a proffered expert witness . . . must possess skill or knowledge greater than the average laymen.'" Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000) (quoting Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998)); see also Holbrook v. Lykes Bros. Steamship Co., 80 F.3d 777, 782 (3d Cir. 1996) (holding that "it is an abuse of discretion to exclude testimony simply because the trial court does not deem the proposed expert to be the best qualified or because the proposed expert does not have the specialization that the court considers most appropriate").
Testimony of Dr. Coyer
Plaintiff seeks to offer the testimony of Dr. Michael J. Coyer who will testify as to the cause of Plaintiff's injuries. Defendant contends that the testimony of Dr. Coyer is inadmissable because he is unqualified, and because the methodology underlying his testimony is unreliable. We will first assess the adequacy of Dr. Coyer's qualifications.
Dr. Coyer's Qualifications
Dr. Coyer intends to offer his opinion regarding Plaintiff's exposure to the 115XP solution and whether the exposure caused Plaintiff's burns. Plaintiff contends that Dr. Coyer is qualified to offer testimony on these "classic toxicology and chemistry opinions." (Doc. No. 28 at 25.) From 1982 through 1992, Coyer studied physical chemistry, organic chemistry, and analytical chemistry at the University of Scranton, the University of Oklahoma, and the State University of New Jersey-Rutgers. (Doc. No. 22 Ex. E ("Coyer Report") at 5.) During this time, he received a masters degree and a Ph.D. in inorganic and physical chemistry. For the past fourteen years, Dr. Coyer has worked in the fields of forensic chemistry and toxicology. He is presently employed by Clinical Laboratories, Inc., where he supervises a forensic and toxicology laboratory. Prior to his current employment he was the director of Sierra Analytical Laboratories, another forensic toxicological laboratory. ( Id.)
Dr. Coyer is a member of the Society of Forensic Toxicology and is certified by the American Board of Forensic Toxicology for Diplomate status. ( Id.) In addition to working in the private sector, from 1996 to 2000, he served on the Adjunct Faculty at Marywood College, teaching courses in Forensic Science and Environmental Monitoring. (Coyer Report at 5.) In addition, he has also authored six published articles within the fields of chemistry and toxicology. ( Id. at 6.)
Diplomate status is the highest status that can be achieved as a toxicologist. (Doc. No. 22 Ex. F ("Coyer Dep.") at 24.) To achieve this status, Dr. Coyer was required to exhibit excellence in experience and written testing. ( Id.)
Defendant contends that although Dr. Coyer is a toxicologist, he is not qualified to give testimony in this instance because he has no educational or "real-life" experience relating to the effects of chemicals on human tissue. (Doc. No. 22 at 13.) Dr. Coyer admits that he has no experience dealing with burns on living people, has not taught a class or published an article concerning burns or industrial cleaning products, or performed any studies on potassium or ammonium hydroxide (the two potentially caustic agents in Oasis 115XP). (Coyer Dep. at 37, 43-45.) This does not disqualify Dr. Coyer from offering his opinion in this matter. Rather it goes to the weight to be accorded to his testimony by the fact finder. Dr. Coyer has vast knowledge and experience regarding toxic chemicals, including potassium hydroxide and sodium hydroxide, which he characterizes as "very common chemicals." (Coyer Dep. at 44.) Based on Dr. Coyer's wide range of experience in chemistry and toxicology we conclude that he has satisfied the "liberal" requirements necessary to testify as an expert in this matter. See Paoli, 35 F.3d at 741.
Dr. Coyer's Opinions
Dr. Coyer has submitted a report containing his opinion concerning Plaintiff's injuries. In this report he concludes that "the injury to Mr. Westley . . . [is] consistent with chemical burns resulting from an aqueous solution of at least 2 ounces per gallon of Ecolab 115XP." (Coyer Report at 1.) This opinion is primarily based upon Dr. Coyer's knowledge of the active chemicals in Ecolab 115XP and the effects of these chemicals. His opinion is as follows:
Coyer refers to various documents used in formulating his opinions. These references are reflected by the numbers set off by parentheses in the text of the opinion.
The materials referred to, ammonium hydroxide and potassium hydroxide, are those `active ingredients' found in Ecolab product 115XP. As a characteristic of chemical burns, the responsible agent will continue a destructive path until it is either removed or completely neutralized. (1) In the discussion of the hydroxide associated with this case, one must refer to the pH of the solution. These hydroxide materials characteristically have pH values above neutral (pH (neutral) = 7.0 Scale 1-14 units) and are categorized as `basic' or `alkaline.' By definition, a pH value below 7.0 is considered `acidic.' The remainder of this discussion, based on the circumstances surrounding this case, will be limited to these `basic/alkaline' properties of the chemicals in question.
1. The standard initial treatment for chemical burns is hydrotherapy (i.e. the irrigation of the effected area with large amounts of water.) This course of action dilutes the area of the causative agents until further treatment is available. It is well known that alkali materials reaction with water is exothermic (i.e. generate heat). (2) The hydrotherapy can keep heat production to a minimum.
It has been shown in experimental animals that with alkali burns, the pH of burned tissue does not return to normal for up to twelve (12) hours even with initial and continuous hydrotherapy. This extended delay to a return to normal pH is due to the chemical reaction of the hydroxides with components of tissue (i.e. proteins, lipids, etc.) forming complexes that facilitate the movement of hydroxyl ions into deep tissue. This movement into deeper tissues provides a difficult gradient barrier for the hydrotherapy to effectively contact with the agent. This is a characteristic of an alkahi burn, which requires the extensive and continued hydrotherapy to bring to a normal pH. (1)
2. In contrast to acids, alkalis do not coagulate protein, which could impede penetration of the compounds. The hydroxide burns may not be immediately painful while the material penetrates the skin. The contact with skin, even by dilute solutions, can cause severe and slow healing burns. The extent of injury is usually a factor of contact time and solution strength. (3)
3. In the case of Mr. Westley, his clothing, specifically his footwear, was saturated with the 115XP mixture. According to his statement, the contact time before removal of the footwear was about 4-5 minutes. At that time, he began a form of hydrotherapy. This delay would have played a significant role in the damage depicted in the accompanying photographs. The reaction with 115XP solution and consequential damage to the skin tissue was initiated during the immediate contact time. In that time, the characteristic alkali reaction had begun a course, eventually leading to the described injuries. As mentioned previously, the pH of this solution would not have significantly been reduced to normal upon the induction of the hydrotherapy.
4. The Law of Mass Action deals with equilibrium at a given temperature. It is that temperature at which certain characteristics of substance can be monitored and predictions of reaction rates, solubility, etc. can be postulated. In this case, the water temperature of the solution in question was stated to be about 130 degrees F. This was an estimate of water temperature extrapolated from information in these listed depositions. The fact of this case is that the water was either `warm' or `hot.' The elevated water temperature would have played a role in the tissue damage of Mr. Westley in several ways:
a. The higher temperature itself may have weakened the tissue or changed the porosity of the skin to allow the alkali metal solution to readily enter the tissue system.
b. The solubility of the chemicals of the solution would have increased making more alkali materials (i.e. hydroxides) available to the effects of absorption. (3)
. . . .
In summary, I can conclude within a reasonable degree of scientific certainty that the wounds suffered by the Plaintiff, Ryan Westley, were directly related to his 25, July, 2001 exposure to the aqueous 115XP. The basis of my conclusions are the information from the documents and information presented to me in this case, the pH measurements of the various concentrations of solutions, the chemical burn references and the material safety data sheets used in the preparation of this report. It is those characteristics of alkali materials, described in the text of this report and the fact that the solution was at some elevated temperature, that I draw this scientific conclusion. My opinion, is also based on both generally accepted chemical properties and those references published with regards to chemical alkali burns.
(Coyler Report at 2-3.)
Defendant argues that based on Dr. Coyer's reports and deposition testimony, the methodology behind his opinion does not meet the Daubert/Paoli standard of reliability. First, Defendant contends that Dr. Coyer's testimony does not follow any generally accepted methodologies. Specifically, Defendant finds the opinion lacking because "[Dr. Coyer] reaches his conclusion by simply relying on Plaintiff's version of the truth, without citing any testing or peer-reviewed materials to support his theory." (Doc. No. 22 at 18.) Defendant argues that tests it conducted show that 115XP could not have caused Plaintiff's injuries. (Doc. No. 25 G, H.) Defendant proffers that its tests also support the argument that Dr. Coyer's methodology is flawed. Finally, Defendant contends that the opinion is unreliable because Dr. Coyer conducted no tests of his own to establish that the solution could have caused Plaintiff's injuries.
Dr. Coyer's opinion is primarily based on his experience and knowledge of chemicals and specifically his knowledge of aluminum hydroxide and potassium hydroxide and their potential effects on human tissue, as well as the facts related by Plaintiff. Opinions based solely on experience and knowledge are sufficient under Daubert. See Kannankeril, 128 F.3d at 809 (holding expert testimony admissible where expert "relied on general experience and readings, general medical knowledge, standard textbooks, and standard references"). In formulating his opinion, Dr. Coyer also relied upon Dr. Frederick A. DeClement's medical diagnosis of Plaintiff's injuries. (Coyer Report at 1; Doc. No. 28 Ex. 17.) Dr. DeClement as well as Plaintiff's treating physicians, diagnosed Plaintiff as having suffered " chemical burns." ( Id. (emphasis added).) Dr. Coyer also considered the Material Safety Data Sheets ("MSDS") for the 115XP solution (versions one and two) and 115XP Concentrate. (Doc. No. 28 Exs. 8, 9.) In one of these sheets, Defendant warned about the hazardous nature of potassium hydroxide and ammonium hydroxide when it came in contact with human skin stating: "CAUSES SERIOUS CHEMICAL BURNS". ( Id.) The other MSDS warned that it "CAUSES CHEMICAL BURNS." ( Id.)
The four or five minute delay between spilling the solution and the onset of pain played a significant role in Dr. Coyer formulating his opinion. It was also significant in the opinions of the medical doctors.
Defendant contends that this MSDS was incorrect and was revised two months later. (Doc. No. 29 at 10.)
Defendant argues that the tests it that it conducted illustrate the unreliability of Dr. Coyer's opinion. In Kannankeril the Third Circuit addressed the issue of the admissibility of expert testimony that is not supported by individual testing and is contrary to evidence introduced by the opposing party. 128 F.3d at 807. The court stated: "Depending on the medical condition at issue and on the clinical information already available, a physician may reach a reliable different diagnosis without himself performing a physical examination, particularly if there are other examination results available." Id. Despite the fact that the expert in Kannankeril came to a different conclusion, the court held the testimony admissible stating: "[plaintiff's] burden is only to provide an expert opinion that is relevant and reliable and that will assist the trier of fact. . . . [I]ssues of credibility arise after the determination of admissibility. Credibility is for the jury." Id. at 809-10. The same principle applies here. While the tests conducted by Defendant might affect the jury's assessment of the credibility of Dr. Coyer's opinion, the existence of the test results and the seemingly contradictory conclusions do not preclude a determination that the opinion is admissible.
Notwithstanding Defendant's contentions that Dr. Coyer's opinion is flawed because it does not rely on any testing or literature, and does not rule out any other cause of Plaintiff's injuries, we are satisfied that Dr. Coyer's testimony is admissible under Daubert. Coyer relied on his general experience, scientific knowledge and medical and scientific reports in forming his opinion. The requirements of Daubert have been met.
Testimony of Dr. Davidson
Plaintiff seeks to admit the testimony of Dr. Burton Z. Davidson, who will testify regarding the toxicity of the solution that Plaintiff spilled on his feet, the failures of Defendant related to product warnings, and product design of the dispenser of the 115XP solution. Defendant seeks to exclude Davidson's testimony, based upon the fact that he is unqualified to testify on any of the subjects for which he is being offered, and because the methodology underlying his testimony is unreliable. We will first assess the adequacy of Davidson's qualifications.
Dr. Davidson's Qualifications
Davidson has extensive experience in the areas of chemistry and chemical safety. He attended Syracuse University receiving a bachelors and a masters degree in chemical engineering. He then attended Northwestern University where he received a Ph.D. also in chemical engineering. (Doc. No. 22 Ex. P ("Davidson C.V.") at 3.) After receiving his Ph.D., Dr. Davidson began teaching at Rutgers University in the fields of chemical engineering, chemical safety, chemical kinetics, general chemistry, and biochemistry. His tenure as a chemistry professor at Rutgers has extended over forty years, eighteen of which he served as the chair of the chemistry department at Rutgers. ( Id.) He has also been recognized as a "Distinguished Professor," a designation only given to ten percent of the faculty. (Doc. No. 28 at 47.) Throughout his career, Davidson has worked extensively with caustic chemicals and has done experiments regarding the effect of chemicals on human skin tissue. (Doc. No. 22 Ex. Q ("Davidson Dep.") at 85-86.) Dr. Davidson has been called upon to render his expert opinion in cases involving caustic drain cleaners on many occasions. ( Id. at 37.)
Dr. Davidson's current academic focus is chemical kinetics and safety engineering. ( Id. at 26.) Pursuant to his work in this field, he received Certificates of Designation as Safety, Health Environmental Ergonomist/Associate and Certified Forensic Ergonomist by the Board of Certified Safety Health Environmental Ergonomists. (Davidson C.V. at 5.) He is also currently a member of the American Society of Safety Engineers, the American Society of Engineering Education, and the American Institute of Chemical Engineers. ( Id. at 8.) Finally, Dr. Davidson estimates that since he earned his professional license, he has provided opinions on warnings in more than 125 chemical product cases and other consulting arrangements. (Davidson Dep. at 36-37.)
Defendant contends that Dr. Davidson is not qualified to testify as to the caustic effect of chemicals on human tissue because he has never specifically studied the effects of potassium or ammonium hydroxide on human tissue, nor has he published any materials or done significant work in the toxicology field. (Doc. No. 23 at 10.) As noted above, Dr. Davidson received a Ph.D. in chemical engineering, has taught numerous chemistry and safety-related classes and has done research on the effects of chemicals on human tissue. We are satisfied that Dr. Davidson's experience and education ensure that he is adequately qualified to testify about all of the matters for which he is offered. See Paoli, 35 F.3d at 741.
Dr. Davidson's Opinions: Proximate Cause
In his report, Davidson gives his opinions regarding the proximate cause of Plaintiff's burns as well as the design defects in Defendant's product and the safety warning defects. With respect to the proximate cause of Plaintiff's injury, Davidson opines:
The above medical opinions of Ryan Westley's chemical burns injuries are completely consistent with universal (and scientifically established) chemical reaction principles, too! That is, the corrosive attack on human tissue by potassium and ammonium hydroxide solutions (at any water dilution concentrations and temperature) follows the Guldberg and Waagl (1867) principle of "mass action". According to this reaction rate principle, the corrosive chemical attack of alkali (potassium and ammonium hydroxide) on human tissue (e.g. fats and collagen) is proportional to the concentrations of the alkali species at constant temperature. Also, the constant of proportionality increases exponentially with increasing temperature according to the well know [sic] Arrhenius principle. In other words, the corrosive attack by alkali is accelerate by elevated temperatures! One of the principal reactions of the corrosive attack of alkali on human tissue is "saponification". Saponification makes "soap" out of human tissue! The chemical attack of alkali on human tissue causes deep corrosion because of the diffusion and reaction processes occurring. Additionally, elevated temperatures (e.g. at, or around, 120-140 degrees [F]ahrenheit) accelerate and deepen the corrosive attack on human tissue.
(Doc. No. 22 Ex. P ("Davidson Report") at 3-4.)
Defendant contends, that like the opinions of Dr. Coyer, this opinion is unreliable because the opinion is not based upon any generally accepted methodologies, is not supported by testing or literature, and cannot rule out other causes. (Doc. No. 23 at 12-13.) Dr. Davidson's conclusion that the 115XP solution caused Plaintiff's chemical burns is based on many of the same documents and depositions that form the basis of Dr. Coyer's opinion. Specifically, Dr. Davidson considered the various depositions regarding the event, the medical reports related to Plaintiff's injuries and Defendant's documentation related to 115XP solution. (Davidson Report at 1.) He also used his knowledge of the effects of chemicals on human tissue and his knowledge of chemistry and toxicology in applying the Law of Mass Action and the Arrhenius principle to the facts in this case. We are satisfied that under Daubert/Paoli, Dr. Davidson's opinion is reliable. The fact that Dr. Davidson conducted no independent testing of the possible affects of the 115XP solution is not controlling.
Dr. Davidson also gives his opinion concerning how Plaintiff's injury could have been avoided. He opines that Defendant failed to provide proper training for Plaintiff's employer and Plaintiff on how to use the 115XP dispenser, failed to provide proper warning labels and defectively designed the dispenser. Dr. Davidson summarized his opinions as follows:
In the field of chemical safety engineering, a product and/or process must be reasonably free of all recognized hazards to people, property, and/or environment. In the instant matter, the ultimate end-user (Ryan Westley) was exposed to multiple hazards involving the predictable use of the Green Dispenser use wash solution in a restaurant kitchen setting. The product (i.e. Ecolab's 115XP use wash solution) and the processes (i.e. Ecolab's Green Dispenser operation) were not free of recognized hazards. These hazards, individually and/or in combinations did cause Ryan Westley's serious bodily injuires.
These hazards were
(i) Inappropriate and defective Product Stewardship training (R-1, R-5, R-6, and R-8) between Ecolab and Shoobies restaurant owner.
(ii) Defective MSDS for Oasis 115XP use solution. The section on HEALTH HAZARD DATA for skin contact exposure was defective (R-7 and R-10). The sections FIRST AID (skin) aid PROTECTIVE MEASURES (skin) were also defective.
(iii) No HEALTH HAZARD FIRST AID, and PROTECTIVE MEASURES warnings information on the Green Dispenser, which is the ultimate-pointof-risk (R-8 and R-10).
(iv) The Green Dispenser's start button and controls were defectively designed (R-8, R-11, and R-12).
The designations R-1, R-2, etc. refer to the references Dr. Davidson used in preparing his report.
(Davidson Report at 4.) In coming to his conclusions that Plaintiff's injuries could have been avoided, Dr. Davidson relied upon Occupational Safety and Health Administration ("OSHA") standards, American National Standards Institute ("ANSI") standards, New Jersey state law, and relevant standards in the chemical manufacturing industry. (Davidson Report at 1, 2.)
Dr. Davidson's Opinions Re: Training and Adequate Warnings
Defendant contends that Dr. Davidson's testimony concerning training and warnings is inadmissable under Daubert. First, Defendant argues that the type of testimony Dr. Davidson seeks to give with respect to the inadequate warning is inadmissable. Defendant compares Dr. Davidson's testimony to the expert's opinions that the Eighth Circuit found inadmissible in Robertson v. Norton Co., 148 F.3d 905, 907 (8th Cir. 1998). In Robertson, the court found that the trial court had improperly allowed an expert to testify on defective product warning labels because the expert was not qualified to testify concerning warning labels, and the expert's opinion was not supported by "the kind of scientific theory, practical knowledge and experience, or empirical research and testing . . ." Id. The instant case can be distinguished. Not only is Dr. Davidson an expert on caustic chemicals he is also an expert regarding safety. He has taught classes concerning adequate warnings, testified as an expert in cases concerning chemical warnings, and has served as a member of a warning label design team assembled by the Federal Trade Commission.
Dr. Davidson's opinion regarding Defendant's failure to adequately train and warn of the dangers associated with 115XP is also based on numerous OSHA and ANSI labeling standards. (Davidson Report at 2.) Defendant argues that the OSHA standards underlying Davidson's opinion only apply to Shoobies, Plaintiff's employer. For this reason, Defendant claims that the testimony is inadmissible under Daubert. Pursuant to the Occupational Safety and Health Act, 29 U.S.C. § 655(a), the Hazard Communication Standard ("HCS") was promulgated to "ensure that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees." 29 C.F.R. § 1910.1200(a)(1). Defendant argues that only Shoobies as Plaintiff's employer had a duty to warn and train its employees about dangerous chemicals. (Doc. No. 23 at 28.) Defendant's argument misconstrues the plain reading of the HCS. While the HCS places duties on employers to protect employees, it also imposes duties on chemical manufacturers. The HCS requires that any hazardous chemicals that leave the place of manufacture be "labeled, tagged, or marked with (i) the identity of the hazardous chemical; (ii) appropriate hazard warnings . . ." 29 C.F.R. § 1910.1200(f)(1). In addition, chemical manufacturers must "obtain or develop a material safety data sheet for each hazardous chemical" it produces or imports. 29 C.F.R. § 1910.1200(g)(1). Under these regulations Defendant had a duty to Plaintiff to adequately warn about the dangers associated with 115XP solution.
Dr. Davidson cites his tenth reference which is "various warnings standard and codes (e.g. ANSI Z129.1[,] ANSI Z535.4, and ANSI Z4000.1; and 29 [C]FR 1910.120, 29 C[F]R 1910.133, 29 C.F.R. § 1900.145, and 16 C.F.R. Parts 1500 to 1512.[)]" (Davidson Report at 2.)
Dr. Davidson's testimony regarding Defendant's failure to adequately train Shoobies' employees (including Plaintiff) regarding the dangers associated with 115XP solution is based on the notion of "product stewardship." (Davidson Report at 5.) As Dr. Davidson explains: "Product Stewardship (PS) has been a well-recognized and practiced safety tool of the Chemical Manufacturers Association (CMA), and others, for decades. It is part of CMA's Responsible Care doctrine of 1990. One of the key features of the PS is to `counsel customers on the safe use of chemicals'". (Davidson Report at 5 (internal citations omitted).) Dr. Davidson states that Defendant did not properly counsel Shoobies (and Plaintiff) on the "necessity to use proper protective gear and access [Shoobies] safety understanding of the MSDSs [sic]." ( Id.) Dr. Davidson contends that:
"a proper PS program, had it been implemented, and audited, would have ensured effective training of Ryan Westley and his employer on ways to avoid skin exposure. Ecolab owned the Dispenser equipment, supplied the hazardous chemicals, maintained and installed the equipment, trained the owner of Shoobies Restaurant, and has a contract with Shoobies Restaurant. Ecolab thus had safety duties to Shoobies' workers and a PS relationship with Joe Roberts."
( Id.)
Defendant argues the concept of product stewardship does not apply to this case. Defendant contends that the standards espoused under the theory of product stewardship do not apply because Ecolab is an inherently different chemical manufacturer than Dow Chemical, the company that developed the product stewardship theory. (Doc. No. 23 at 29.) Defendant also argues that Dr. Davidson's testimony is not appropriate because it holds Defendant to "an improper standard allegedly followed in a different industry than that" in which Defendant is engaged. (Doc. No. 23 at 31.) However, Dr. Davidson will testify that product stewardship is a standard that applies generally in the chemical manufacturing industry:
Q: Well, that's why I want to know whether or not you know whether it's Dow or whether it's anybody, what they do for the product — that's why it's so important that I want you to focus on industrial cleaning supplies and what other manufacturers do, what the industry standard does when it comes to product stewardship in this area?
A: I'm not going to allow you to limit this to cleaning chemicals. Cleaning chemicals are just one of thousands of chemicals that fall under product stewardship. Product stewardship is a principle. It applies generally across the board.
. . . .
Q: [Y]ou're citing general product stewardship philosophy, and you cited the multi-employer workplace. Is there anywhere else that you are getting the concept that Ecolab had a product stewardship duty?
A: It's, basically, coming from Dow's influence over the Manufacturing Chemists Association, which I don't even know if Ecolab is a member. . . . To the extent that they're a member, even if they're not a member, it's what the industry recommends and practices.
(Davidson Dep. at 204, 207.) Since the concept of "product stewardship" appears to be an accepted industry standard in the area of chemical safety, Dr. Davidson's testimony with regard to this standard is not inappropriate. See Ebenhoech v. Koppers Indus., Inc., 239 F. Supp.2d 455, 467 (D.N.J. 2002) (suggesting that courts generally consider the following when assessing the reliability of expert testimony under Rule 702: "whether the expert considered (1) federal design and performance standards, (2) standards established by independent standards organizations, (3) relevant literature, (4) evidence of industry practice . . .") (citing Milanowicz v. The Raymond Corp., 148 F. Supp.2d 525, 536 (D.N.J. 2001)).
It is also Dr. Davidson's opinion that the MSDS for Oasis 115XP use solution is defective. He believes the warning on the MSDS is improper because it was not explicit and strong enough in indicating the dire consequences of exposure. (Davidson Report at 5.) To support this opinion, Dr. Davidson again cites various OSHA and ANSI regulations. Defendant contends that Dr. Davidson's testimony regarding the problematic MSDS should be excluded because Defendant has no duty to provide an "MSDS for the use solution." (Doc. No. 36.) Specifically, Defendant argues that Defendant has no duty to provide an MSDS for the use solution pursuant to the HCS, 29 C.F.R. § 1910.1200(d)(5)(ii), because the concentration level of the active chemicals in the solution (ammonium and potassium hydroxide) was only 0.05 percent. (Doc. No. 23 at 36.) This argument misconstrues the text of the regulation. The relevant provision states:
Defendant's argument concerning the MSDS for the solution is curious since Defendant did in fact create an MSDS for the solution. (Doc. No. 23 at 38.)
(5) The chemical manufacturer, importer or employer shall determine the hazards of mixtures of chemicals as follows:
. . .
(ii) [i]f a mixture has not been tested as a whole to determine whether the mixture is a health hazards, the mixture shall be assumed to present the same health hazards as do the components which comprise one percent (by weight or volume) or greater of the mixture
. . .
(iv) If the chemical manufacturer, importer, or employer has evidence to indicate that a component present in the mixture in concentrations of less than one percent . . . could be released in concentrations which . . . could present a health risk to employees in those concentrations, the mixture shall be assumed to present the same hazard.29 C.F.R. § 1910.1200(d)(5)(ii), (iv). Defendant contends that because the ammonium and potassium hydroxide comprised less than one percent of the solution, they had no duty to determine the hazards of the mixture, and create an MSDS for the solution. ( Id.) Even if we were to agree with Defendant that subsection (ii) does not create a duty on Defendant to provide an MSDS for the use solution, subsection (iv) clearly creates such a duty. It is entirely possible that through a product defect in the dispenser, as could be the case here, a higher concentration of 115XP could be added to the water creating a solution with a higher concentration of ammonium and potassium hydroxide that could present a health risk to an employee such as Plaintiff. As Defendant did create an MSDS for 115XP, and Defendant had a duty to do so, Dr. Davidson's testimony regarding the problems with the MSDS is relevant and admissible.
Dr. Davidson suggests in his Report that a dispenser may be miscalibrated and therefore deliver a ratio of concentrate to water that was too high. (Davidson Report at 8.) There is no dispute that as the concentration levels of 115XP increase, the potential harm the solution could cause also increases.
Throughout its Motion, Defendant argues that it is not the "manufacturer" of the use solution because it was Plaintiff's employer rather than Defendant that mixed 115XP with water to create the solution. (Doc. No. 23 at 37.) Defendant manufactured 115XP, manufactured the dispenser from which 115XP was mixed with water, and installed the dispenser and the chemicals at Plaintiff's employer's business. Defendant's argument appears to be inconsistent with the intent of the HCS.
Davidson's Testimony: Dispenser Defects
Dr. Davidson criticizes the design of the solution dispenser in two respects. First, he indicates that the design is flawed because it lacked proper warnings. Second, he indicates that the design was defective because there was no automatic switch which would have allowed only "a fixed or preset amount of hot use solution into the 35 pint mop bucket." (Davidson Report at 8.) Defendant argues that it has no duty to label the chemical dispenser, so that any testimony regarding the failure to place a warning on the dispenser is not relevant. While Defendant makes the argument that it has no duty to place a warning on the dispenser, it also argues that the warning that it did place on the dispenser was in accordance with OSHA standards. Even assuming that Defendant is right that it has no duty under OSHA, the notion of product stewardship and the existence of industry standards may create such a duty. Certainly, Dr. Davidson can testify as to the industry standards related to the labeling of hazards. Moreover, Defendant's contentions regarding the labeling on all of its products are not arguments that go to the admissibility of Dr. Davidson's expert testimony. Rather, they are arguments that go to the credibility of the testimony, as judged by the ultimate trier of fact. Kannankeril, 128 F.3d at 809-10.
Dr. Davidson's second concern is that the dispenser lacked an automatic shutoff. He indicates that if the dispenser had an automatic shutoff feature, the mop bucket that Plaintiff was filling would not have over filled and this accident would have been avoided. Compounding the problem with this design flaw, Dr. Davidson also indicates that Defendant erred in not recommending that a bucket with a bottom drain be used in conjunction with its dispenser.
In the catalog cited by Dr. Davidson, there are two types of mop buckets made by Rubbermaid: one with a bottom drain plug with splashguard, and one without. If Defendant recommended the bucket with bottom drain plug this accident could also have been averted.
In contending that Dr. Davidson's opinions regarding the design defects should be excluded, Defendant again questions Dr. Davidson's qualifications and methodology. Defendant argues that this case is similar to the case of Chester Valley Coach Works, et al. v. Fisher Price, No. Civ. A. 99-4197, 2001 WL 1160012, at *10 (E.D. Pa. Aug. 29, 2001), where we excluded the expert's testimony because the expert "did not rely on any testing, experimentation or generally accepted texts or treatises to support [the conclusion]. Instead, his conclusion . . . rests, by his own admission, solely on his experience and education." Defendant's reliance on Chester Valley is misplaced. The expert in Chester Valley was offering an opinion on the cause and origin of a fire. The expert cited the accepted methodology for reaching his conclusion, but then completely failed to follow this cited methodology, in reaching his conclusions. Id. at 8. In the instant case, Davidson not only relies on his knowledge and experience, but cites industry standards as well as regulations promulgated to ensure workplace safety. In Kumho Tire Co., Ltc. v. Carmichael, the Court stated that when evaluating the methodology behind technical expert testimony the district court should apply a "flexible" approach. 526 U.S. 137, 141 (1999); see also Yarchak v. Trek Bicycle Corp., 208 F. Supp.2d 470, 500 (D.N.J. 2002) ("When evaluating the reliability of the reasoning and methodology employed by nonscientific or technical expert witnesses, the court's main objective is to `ensure that an expert, whether basing testimony on professional studies, a clearly established methodology or technique, or on his own specialized knowledge, skill or experience, employs in the courtroom the same level of intellectual rigor that characterize the practice of an expert in the relevant field.'") (quoting Kumho Tire, 526 U.S. at 152). Dr. Davidson's testimony is based on his extensive knowledge and experience in the area of product safety. Moreover, in concluding that "Ecolab's defectively designed Dispenser, did not comport with industry standards," Dr. Davidson cited the text GUIDELINES FOR SAFE AUTOMATION OF CHEMICAL PROCESSES (American Institute of Chemical Engineers, 1993). We are satisfied that Dr. Davidson's testimony regarding the product defects in the dispenser design, satisfies the requirements of Daubert/Kumho Tire.
In his report, Dr. Davidson also generally cites PRODUCT SAFETY — SAFETY BY DESIGN: REDUCING HAZARDSTHROUGHBETTERDESIGNS29-33 (Professional Safety, Vol. 43, No. 2), and STONE AND WEBSTER ENGINEERING CORPORATION, RISKASSESSMENT AND RISK MANAGEMENT FOR THE CHEMICAL PROCESS INDUSTRY (1991).
Motion for Summary Judgment
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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." Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, a court must view facts and inferences in the light most favorable to the party opposing the motion. Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995). Defendant's Motion for Summary Judgment is predicated on the exclusion of the expert testimony of Dr. Coyer and Dr. Davidson. Since we will deny Defendant's motions to exclude this expert testimony, there remain genuine issues of material fact that must be decided by a jury. Accordingly, Defendant's Motion for Summary Judgement will be denied.
An appropriate Order follows.
ORDER
AND NOW, this ____ day of May, 2004, upon consideration of Defendant Ecolab Inc.'s Motion to Exclude the Testimony of Dr. Michael J. Coyer (Doc. No. 22), Motion to Exclude the Testimony of Dr. Burton Z. Davidson (Doc. No. 23), and Motion for Summary Judgment (Doc. No. 24), it is ORDERED that:1. Defendant's Motion to Exclude the Testimony of Dr. Michael J. Coyer (Doc. No. 22) is Denied;
2. Defendant's Motion to Exclude the Testimony of Dr. Burton Z. Davidson (Doc. No. 23) is DENIED; and
3. Defendant's Motion for Summary Judgment, (Doc. No. 24), is DENIED.
IT IS SO ORDERED.