Delores F. Turner, et al. v. Iowa Fire Equipment Company

Delores and Russell Turner appeal the adverse grant of summary judgment in
their personal injury action1 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 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.

* * *

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).

* * *

Click the case caption above for the full text of the
Court's opinion.

Affirmed

Unknown

Unknown

Reported by Kent Morlan