"Brain-damaged worker hired wrong experts can't prove case"

This posting was written by Jodine Mayberry and published in the V7/I#4 March 2010 Westlaw Journal Expert and Scientific Evidence. 

A worker at a hazardous-materials disposal plant, permanently brain damaged from exposure to hydrogen sulfide gas, lost his product liability suit because none of his experts was qualified to testify about the chemical's dispersal characteristics, the 8th U.S. Circuit Court of Appeals has ruled.

Barrett et al. v. Rhodia Inc., No. 09-3115, 2010 WL 2025366 (8th Cir. May 24, 2010).

Plaintiff Dave Barrett was unable to show causation even though another worker, Craig Wheeland, who was on a platform 14 feet above him and much closer to the allegedly defective chemical, died during the same incident.

Wheeland's family reached a confidential settlement with defendant manufacturer Rhodia Inc.'s predecessor in interest, Rhone-Poulenc Inc., in a separate lawsuit.  Wheeland v. Rhone-Poulenc, No. 04-05018, case dismissed (D. Neb. 2007).

The chemical at issue is phosphorus pentasulfide, known as P2S5, a dust used in hazardous waste disposal that turns into hydrogen sulfide gas when it comes into contact with moisture, including the water in human lungs.

The 8th Circuit held that Barrett was unable to prove that P2S5 manufactured, packaged and shipped by Rhodia had turned into hydrogen sulfide gas in the container and, when Wheeland released it, drifted down to Barrett in a sufficient quantity to cause him to black out and suffer brain damage.

Rhodia put forward an alternative theory that P2S5 dust had dropped down a chute to where Barrett was working without protective clothing, and he breathed it in, causing it to turn to gas in his lungs.

If Barrett were able to prove that the dust had turned into gas in the container, he could have continued his product liability case against Rhodia for manufacturing a defective container and failure to warn, the opinion said.

Barrett and Wheeland were working at the plant owned and operated by Clean Harbors Environmental Services in Kimball, Neb., June 27, 2003, when the incident occurred.

Wheeland was on an open third-floor platform and was wearing protective clothing and breathing apparatus, the opinion said.  His job was to load the contents of a drum of P2S5 into a chute to transport it to the first floor.

Barrett, on a second-floor platform, was to open the chute to allow the chemical to drop down to the first floor.

When Barrett opened the chute, he passed out and two other workers on the second floor helped him outside.  Wheeland was later found dead on the third-floor platform, according to the opinion.

Clean Harbors hired an independent environmental company to investigate, and it found hydrogen sulfide gas in the headspace of the unopened drums of P2S5.

The investigators concluded that the drum opened by Wheeland had a maximum hydrogen sulfide concentration of 5,500 parts per million, which would have been lethal.  But they also found that the gas dispersed quickly, dropping to a maximum of 120 ppm at a distance of 12 feet from the drum, which would have been minimally harmful, the opinion says.

Clean Harbors and Barrett, who was left with severe permanent dementia, sued Rhodia in the U.S. District Court for the District of Nebraska.

The plaintiffs recruited four experts: Dr. Gerti Janns, a toxicologist and allergist; Dr. Terry Himes, Barrett's treating physician; Anne Taylor, a clinical psychologist, and Edward Ziegler, a safety engineer.

After a hearing to determine if the experts were qualified, the District Court held that while they were qualified to testify in some areas, none of the four was an expert on the rate of hydrogen sulfide gas dispersal.

Thus, none could offer proof that 500 to 700 ppm of the gas had drifted down from the opened drum and caused Barrett's injury.  Exposure in that range would have been sufficient to cause Barrett's injuries, his experts said.

While the experts could prove general causation -- that hydrogen sulfide gas could cause the injuries Barrett suffered -- they could not prove specific causation -- that sufficient accumulated gas had drifted down and affected Barrett, the court said.

Without any experts to prove specific causation, the District Court dismissed the suit against Rhodia.  The plaintiffs appealed, but the 8th Circuit affirmed the lower court judgment in its entirety.    

Opinion: 2010 WL 2025366