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DAVIS v. DUPONT

December 14, 1989

Dennis DAVIS and Vicki Davis, His Spouse, Plaintiffs
v.
DuPONT; Sherwin-Williams; and PPG Industries, Defendants



The opinion of the court was delivered by: EISELE

 GARNETT THOMAS EISELE, United States District Judge

 Facts

 The complaint in this action alleges that the plaintiff, Mr. Dennis Davis worked for approximately twenty-five years at various automobile paint and body repair shops in Texas, Louisiana and Arkansas. In 1985, plaintiff was diagnosed as suffering from chronic hepatitis and as a result of this condition is permanently disabled. Mr. Davis contends his illness developed as a result of his exposure to toxic fumes and dust while using various unspecified paint products manufactured by the defendants, and sold to Mr. Davis' employers. The complaint lists a variety of theories of recovery including breach of warranties, negligence and strict products liability.

 Precisely which of defendants products are alleged to have caused plaintiff's injury remains unknown. During his deposition, plaintiff stated that his employers used paints, lacquers, thinners and other solvents produced by all three defendants as well as other manufacturers not named in this suit. At one point in his deposition, Mr. Davis opined that: "DuPont I probably used the most, Sherwin Williams [sic] I used the second most, and PPG the third." Deposition of Dennis Davis at p. 190. Plaintiff, however, did not identify any specific products used, with the exception of a rubbing compound known as "White Lightning" that is produced by defendant Sherwin-Williams. Id.

 Moreover, plaintiff has not specifically identified which ingredients or chemical compounds within any of the defendants' products are alleged to have caused his liver injury. In response to interrogatories requesting this information, plaintiff provided the following list of chemicals: "Toulene, acetone, methyl-ethyl-ketone, styrene, xylene, lead and other components of the paints and solvents."

 In response to the pending motion, plaintiff points to a Material Safety Data Sheet (MSDS) published by defendant duPont for one of its products known as "Centari Acrylic Enamel", which does in fact contain many of the ingredients listed in plaintiff's interrogatory response. Section V of the MSDS entitled "Health Hazard Data" also states in part that "recurrent exposure to [toulene and xylene] may result in liver and kidney injury." Plaintiff's Exhibit F.

 The duPont MSDS was published in April 1987, sometime after Mr. Davis stopped working in automotive body repair shops. Separate defendant PPG Industries argues that the document cannot be considered for the purposes of the pending motion because it would constitute evidence of a subsequent remedial measure barred by Federal Rule of Evidence 407, which prevents the admission of such evidence "to prove negligence or culpable conduct". The Court notes that the Eighth Circuit has held Rule 407 applicable in strict products liability cases where, as here, plaintiff alleges that defendants failed to provide adequate warnings of a product's defect, or inherent danger. See DeLuryea v. Winthrop Laboratories, 697 F.2d 222 (8th Cir. 1983). However, the evidence is being presented not necessarily to prove negligence, but rather as an admission of duPont that these chemicals have been linked with the type of injury suffered by Mr. Davis. Moreover, it is not necessary for a nonmoving party to "produce evidence in a form that would be admissable at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 Assuming plaintiff could produce admissable evidence of such an admission, the duPont MSDS still does not establish causation. Plaintiff does not allege that he ever came in contact with "Centari Acrylic Enamel", much less received recurrent exposure to its ingredients. Moreover, the MSDS has no significance as to the claims brought against the other two defendants. Plaintiff has not come forward, for instance, with any evidence concerning the ingredients of defendants Sherwin-Williams' product "White Lightning."

 Finally, plaintiff has not come forward with any medical expert opinion that would assist in establishing causation. Although plaintiff's expert Dr. Swan Thung, a liver pathologists, will testify that "Mr. Davis' liver disease is a chronic toxic hepatitis due to chronic exposure to toxic fumes," Dr. Thung is apparently unable to testify with any degree of medical certainty that the products manufactured by the defendants caused plaintiff's injury. Plaintiff's Exhibit G. At her deposition, Dr. Thung testified as follows:

 
Q: What types of liver injury does [Mr. Davis] have?
 
A: He has severe steatosis which is fatty degeneration. He has fibrocysis which means laying down of connective tissue ...

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