*3 BOGGS, Judge; Before MOORE Chief CLAY, Judges. Circuit CLAY, J., opinion delivered the court, MOORE, J., joined. in which 434-40), BOGGS, (pp. C.J. delivered separate dissenting opinion.
OPINION CLAY, Judge. Circuit Plaintiffs, and Debo- Elizabeth A. Gass court’s appeal the district DeJonge, rah grant summary judgment money to Defen- when she decided to retrieve lunch (“Ecolab”) dants, Ecolab, Inc. and Mar- from the hotel room. DeJonge left the (“Marriott”). Services, Hotel Inc. ground-level riott beach and walked to the hotel Michigan room, Plaintiffs Defendants under entering through sliding glass sued law, claiming poisoned Immediately upon entry, door. she discov- pesticides during stay their at a Marriott ered three men the room. Two of the Maui, allege hotel in Hawaii. Plaintiffs wearing men were metal tanks on their Ecolab, employees provides faces, backs masks on their and were Marriott, extermination services for spraying a chemical from Ac- those tanks. sprayed belongings “thick, with an unknown cording DeJonge, there was pesticide and filled their hotel room horrid, room, putrid acrid odor” in the *4 (J.A. 490-91.) toxic vapors, causing Plaintiffs to become cloudy.” the air “sort of was ill. granted summary The district court DeJonge also states the haze of chem- Defendants, judgment holding that no icals in the room was thick that she so it, it, it, reasonable could conclude that Defen- could “see smell taste feel it.” (J.A. 494.) negligеnce inju- dants’ caused Plaintiffs’ disagree, accordingly ries. We and RE- men, Upon noticing DeJonge the three grant summary judgment VERSE the immediately began screaming at the men and REMAND this case to the district stop spraying, and accused them of court for trial. stuff,” “ruining [her] much of which was (J.A. laid out in suitcases on the floor. BACKGROUND 492-93.) demands, In response to her De- I. FACTUAL HISTORY Jonge testified that one of the men “shot 6, 2004, September On Plaintiffs were look,” dirty yelled something [her] guests in a Maui hotel operated Mar- understand, language she did not and re- day, DeJonge (J.A. 493.) riott. That filed a complaint spraying. point, sumed At this with the hotel after she discovered a dead DeJonge picked up phone, called the room, in her employ- cockroach and a hotel desk, hotel manager and asked for the eventually ee removed the roach. The meet her outside of the hotel room. She day, away next while Plaintiffs were from then left the room to wait manager. for the room, employees their three en- Ecolab arrived, the manager DeJonge When re- room, Plaintiffs’ bringing tered with them room, layed happened what had in the at least one unidentified pesticide. Ecolab they given demanded that be room new provides pest exterminátion services to immediately get because “we need to our Marriott. stuff out of there ... it gеts before more (J.A. 496.) DeJonge ruined.” added that Exposure A. Plaintiffs’ to Pesticides “I can’t stand the smell in there. I think Although parties opposing offer (Id.) making manager it’s me sick.” happened views what while the Ecolab acquiesced, and called a bellhop help exterminators were in Plaintiffs’ hotel DeJonge belongings her to a new move room, Defendants concede that the sum- DeJonge room. then left to find Gass and mary judgment requires standard let her happened. know what Court to credit Plaintiffs’ re- garding the exterminators’ actions. Ac- DeJonge explained why found Gass and cording to Plaintiff DeJonge, she was re- needed belongings to retrieve their laxing on the beach By with Plaintiff Gass and switch rooms. the end of this more-potent pesti- or Medeiros identified two conversation, lasted about six minutes, to feel ill. DeJonge began “Suspend SC” and “Demand CS”— seven cides— Nevertheless, returned to the women commonly both that were used Ecolab room, two-and-a- they spent about where trip Suspend time of Plaintiffs’ to Hawaii. belongings. gathering half minutes CS are sold in concentrat- SC Demand identified the DeJonge nor Gass Neither form, in a pump ed then mixed with water fumi- Ecolab used to chemical that specific sprayer apply or similar container to their room. gate that, pesticide. Sep- Medeiros сlaims on 7, 2004, day Plaintiffs’ room tember Defendants concede Although used, sprayed, only SSI-50 was and a requires standard was summary judgment report day Plaintiffs’ version he filed that corroborates his accept this Court events, a different ver- Defendants offer claim. the exterminators acted. Ac-
sion of how Medeiros, testimony by Michael cording to Illness B. Plaintiffs’ exterminator, he and one co- an Ecolab A their exposure short time after just thirty entered Plaintiffs’ room worker room, hotel Plaintiffs con- Accord- DeJonge before arrived. seconds manager complained tacted the hotel *5 Medeiros, employee neither Ecolab ing to tongues, of “numbness to their stomach any pesticides before De- sprayed had (J.A. 370.) aches, seeing and stars.” The the room. Medeiros claims Jonge entered manager arranged transportation to a quick “two that his made co-worker center, nearby urgent care and Plaintiffs of an insecticide from an aerosol squirts” symptoms. received medication for their commercially available can similar to those Upon Michigan, their return to Plaintiffs stores, that no other chemi- at retail and (J.A. 481.) initially sought treatment from Dr. Robert in the room. sprayed cals were that, osteopathic and DeJonge, physician immediate- further testified Medeiros Dr. De- ly DeJonge’s after the exterminator made these Plaintiff husband.1 “very however, DeJonge up- eventually became Plain- “quick squirts,” Jonge, referred set,” Natzke, at Medeiros and began yelling physician and a tiffs to Dr. Gerald (Id.) men left the his co-worker. The two medicine.2 specializing in environmental room, that he heard and Medeiros claims Dr. Natzke During appointment her say “my stuff is ruined” as DeJonge DeJonge informed on October (Id.) leaving. were developed had various Dr. Natzke that she fifteen minutes of her symptoms within regarding the Medeiros also testified pesticides, including “a exposure to the typically Ecolab used kinds of chemicals hands, headache, tongue, swelling of her hotel, identifying servicing the Marriott dizziness, face, profuse itching, feet and target three kinds of insecticides used ... drooling.” breath and shortness of first, potent, and least cockroaches. (J.A. 846.) appoint- time of her By the pesticide a called of these chemicals is ment, included “a DeJonge’s symptoms “SSI-50,” from normally sprayed which is Additionally, slurring tongue, complaints and swollen aerosol can. a twelve-ounce excitant,” indicated, pesticide. a “DeJonge” such as will environmental 1. Unless otherwise DeJonge. DeJonge, Academy refer to Ms. not Dr. of Environmental See American Medicine?, Medicine, Is Environmental What Physiсians specializing in environmental http://www.aaemonline.org/introduction.html experi- reactions medicine treat "adverse 11, 2008). (last August visited exposure on to an enced an individual Maui) mouth, drooling in her did a foul taste not reveal “detectable levels” of in her mus- complaints fatigue pain compounds such systems, Plaintiffs’ Dr. joints,” in addition to a need to cles and possibility Natzke did not rule out the naps afternoon which wasn’t the case “take DeJonge exposed Gass and to SSI-50 7, 2004[,] September before the incident on because “the concentration of chemicals droopy eye.” ... a left [ ] diarrhea pesticide from the ... contamination (Id.) would have been diluted in their blood the time I saw them mid-October.” appointment her first with Dr. Gass had (J.A. 847.) Dr. Natzke did not test Plain- 22, 2004, and com- Natzke on October tiffs for other toxins because “there are over, chills, sweats, all plained of “aehiness tens of thousands of chemicals and it is fever, tongue, droopiness her blisters on impossible to test for all such chemicals face, right on the side of her muscle specifically without knowing what chemical dizziness, vision and spasms, blurred mem- (Id.) person exposed was to.” (J.A. 847.) ory problems.” DeJonge, Like Dr. Gass told Natzke within ten to Experts C. Defendants’ pes- fifteen of her to the minutes ticides, developed she “weaknеss and fa- Despite uncertainty regarding which tigue green/gray tongue and had a to, toxin or toxins exposed Plaintiffs were she turned black about 1 weeks said % Defendants introduced substantial (Id.) later.” testimony indicating that SSI-50 could not have the symptoms experienced by caused Natzke, to Dr. both
According women First, point Plaintiffs. Defendants neurological in- symptoms, also exhibited report by Germert, Ph.D., Marcia van cluding fog, memory “brain [and] loss *6 (J.A. 848.) toxicologist with a doctorate in Pharmacol- swings.” mood He adminis- ogy Biochemistry. Although and Dr. van sensitivity a tered “visual contrast test” to Germert did not examine the toxic Gass, effects Dr. Natzke which said “she failed any SSI-50, substance other than she miserably” and had “one of the worst test (Id.) peer concludes that “no study” reviewed I poor per- results have seen.” Gass’ demonstrates that the in chemicals SSI-50 formance on the vision test indicated to produced have “ever in toxic effect hu- Dr. exposed Natzke “that she was to neu- mans, (Id.) produced or symptoms alleged rotoxins.” Dr. Natzke added that by plaintiffs” (Id.) when those chemicals are pesticides “[a]ll contain neurotoxins.” merely used for applica- “crack and crevice Dr. Natzke also that both women noted (J.A. 180.) tion.” tongues” at point “exhibited black some them, began treating symptom since he Similarly, the report record contains a pesticides that he attributed to Wedner, MD, H. James chief of the (Id.) system. Allergy Division of Immunology Medi- symptoms, Based on their Dr. Washington University Natzke cine of the School diagnosed DeJonge both Wedner, Gass with of Medicine. According to Dr. (J.A. 846-47.) pesticide exposure.” “throughout ages “acute there have been indi- However, identify he not particu- could viduals who have developed conditions that (J.A. 196.) pesticide lar to which Plaintiffs were ex- have defied characterization.” posed. Although pyrethroids for Dr. suggests may test Wedner that Plaintiffs compounds and other chemical found in suffering be from such a condition which (the potent pesti- SSI-50 least of the three not “do[es] seem to have an obvious (Id.) purportedly Nevertheless, cides used at the Marriott in cause.” con- Wedner
425 eluded that neither Gass nor DeJonge forum state. NILAC Int’l Mktg. v. Group any Servs., Inc., “suffered health problems that are Ameritech 354, 362 F.3d 358 (6th Cir.2004). related to their potential exposure to Ssi- Because Plaintiffs filed in their 50 hotel room in Maui on case [sic] Western District of Michi- (J.A. 191.) 7, gan, September Michigan 2004.” Dr. choice of provisions Wed- law ap- ply. Id. provides analysis ner no regarding the SC,
possible effect of Suspend Demand Michigan choice of provisions law CS, or pesticide other on Plaintiffs.3 allowing favor Michigan bring residents to Finally, the report by record contains a suit in Michigan courts under Michigan Benedek, MD, Elissa P. psychia- a clinical Anderson, law. See Olmstead v. Mich. 428 1, trist faculty appointments (1987). who holds at 400 N.W.2d 302-03 Gener three universities. Dr. Benedek attempts ally speaking, a tort claim filed a Michi symptoms gan dismiss Plaintiffs’ merely governed as court will be Michigan psychosomatic, concluding that law both De- “unless a ‘rational reason’ exists to Jonge displace and Gass have it.” “demonstrated a ten- Watkins & Son Supplies Pet Co., (6th dency to react to stress in Iams past F.3d Cir. 2001) Olmstead, physical symptoms, (quoting and now at continue[ ] N.W.2d 305). Moreover, psychological react to the fact that a physi- stressors with tort took (J.A. place outside of symptoms Michigan cal complaints.” itself a 242) sufficient reason to Benedek, apply a According to Dr. different Gass and Olmstead, state’s law. See DeJonge’s symptoms resulted from N.W.2d noth- 302 (holding that the fact that an ing accident psychological more than a reaction to occurred Michigan outside of is of no stress.
“great particular or significance” in deter mining which apply II. state’s law to in a tort PROCEDURAL HISTORY suit). Additionally, although Michigan Plaintiffs diversity filed this case recognize courts that applying Michigan Michigan Western District of on December law rather than the law of the state in 29,’ 2005, аlleging that Defendants negli- allegedly the tort place might took gently exposed them to and that lead to forum shopping, “[t]here is no fo *7 was the cause of their subse- rum-shopping concern when the forum is quent discovery, illness. After Defendants plaintiffs also the state citizenship.” Id. 8, moved for summary judgment. May On at 303. 2007, the district granted court Defen- dants’ summary motion for judgment. residents, Michigan Plaintiffs are appeal This followed. and they present arguments why no the
law of Hawaii or other state should apply. Accordingly, we see no reason to DISCUSSION displace Michigan’s presumption that I. CHOICE OF LAW Michigan governs substantive law tort Federal sitting courts in diversity brought suits within its borders. id. See apply the choice of provisions However, law at 302-03. under Erie Railroad report 3. The record also contains a proper, including from Dr. ment was the selection of Bennett, Gary Entomology professor an products, at and the treatment method and University. surveying (J.A. 129.) Purdue legal product After the amount of used.” It is use, landscape governing pesticide however, report, Dr. Ben- unclear from Dr. Bennett's ultimately nett might concludes that "Ecolab's treat- what the basis of his conclusions be. 426 “ (1) reasoning or 817, the whether consider: 58 S.Ct. U.S. Tompkins, 304
Co. v.
underlying
expert’s
the
testi
methodology
(1938),
governs
law
federal
427
permitted
advisory
note);
Insofar as the district court
committee’s
see also
DeJonge
Dr.
Dr. Natzke
Co.,
to offer a
Carmichael,
Kumho Tire
Ltd. v.
diagnosis,
excluding testimony
while
on
137, 156,
U.S.
119 S.Ct.
143 L.Ed.2d
professional expe-
matters outside of their
(1999) (“[N]o
one denies that an ex-
rience, the district court’s decision is simi- pert might draw a
from
conclusion
a set
lar to Dickenson v. Cardiac & Thoracic
of observations based on extensive and
Tenn., P.C.,
Surgery
Eastern
388 F.3d
specialized experience.”). The exclusion
(6th Cir.2004).
Dickenson,
we con- of a medical
professional
doctor’s
opinion,
sidered the expert testimony of Dr. John-
in
rooted
that doctor’s “extensive relevant
son, a
surgeon,
regarding
cardiac
the
experience,”
“rarely justified
in cases
patient’s
injuries.
cause of a
brain
Dr.
involving medical experts
opposed
as
to
Johnson testified that
patient’s injuries
the
supposed experts in the area
product
li-
premature
resulted from
removal of her
Dickenson,
ability.”
posure, likely the district establishing court’s conclusions ture a connection between Plain- that, recognize although exposure both pesticide doctors are tiffs’ to some unknown competent testify regarding diag- symptoms experience Plaintiffs' continue to (even diagnosis Gass, necessarily implies years nosis if the exposure.” over two after the Thus, pesticides), F.Supp.2d neither doctor is com- at 1020. the district *9 petent testify regarding specific pesti- to court ruled that while Dr. Natzke and Dr. cide exposure. DeJonge competent and the time frame of testify are to that Plain- emphasized district court suffering pesticide exposure, that neither doctor are tiffs from engaged testing in particular competent testify that revealed the regarding neither to to, pesticide exposed Plaintiffs were exposure. and nei- whether Defendants caused this 428 toms, Plaintiffs’ to that or when his or her matters within
testify regarding
occurred.
pesticide
at
See id.
experience.
professional
own
however,
strays
When,
the doctor
982.
correctly permitted
The district court
or
knowledge, his
professional
from such
testify
and Dr. Natzke to
DeJonge
Dr.
reliable, and
less
her
becomes
Plaintiffs, and
diagnosis
their
regarding
702.
under Rule
likely to be excluded
more
testimony regard-
properly excluded
See id. at 982-83.
Plaintiffs were ex-
ing
and when
where
Therefore,
the dis-
pesticides.
to
posed
reading of Dicken-
light
In
of this
not abuse its discretion
trict court did
court did
son,
the district
believe that
we
DeJonge
Dr. Natzke’s
limiting Dr.
and
Both Dr. De-
discretion.
not abuse its
profes-
matters within their
testimony profession
Dr. Natzke relied on
Jonge and
knowledge.
experience
personal
or
sional
treating
diagnosing
experience
al
Dr. Natzke stated
Specifically,
Plaintiffs.
THE
COURT’S GRANT
III.
DISTRICT
experi
he relied on his
in an affidavit that
OF SUMMARY JUDGMENT
for
patients
“thousands of
treating
ence
of Review
A. Standard
including
medicine issues
environmental
contamina
other chemical
pesticide and/or
summary
granted
court
The district
Dickenson,
(J.A. 846.)
both
tion.”
Under
respect
Defendants with
judgment
compe
are
and Dr. Natzke
DeJonge
Dr.
Gass,
claims.
501
negligence
Plaintiffs’
to Plaintiffs’
testify
respect
tent
A district court’s
F.Supp.2d at 1026.
they rely
on
diagnosis to the extent
summary
is reviеwed de
grant
judgment
experience. See
professional education or
580,
Jopke,
F.3d
587
novo. Farhat
370
Conversely, nothing
388 F.3d
Cir.2004).
(6th
grant
The district court’s
Dr. Natzke’s medical
DeJonge’s
Dr.
or
be affirmed
summary judgment
should
a
to deter
expertise
provide
basis
would
discovery and disclosure materi
when “the
were
chemical Plaintiffs
mine the exact
file,
any
als on
affidavits show
Marriott hotel.
addi
exposed to at the
as to
materi
genuine
there is no
issue
tion,
Defendants did not disclose
because
to an essential element of the
al fact” as
exposed to
possibly
were
Plaintiffs
case. Fed.R.Civ.P.
non-moving party’s
very
until
late
Suspend
Demand
or
SC
CS
56(c).
if
“genuine”
An
of fact is
a
issue
the doctors could
discovery process,
in the
person could return a verdict
reasonable
Plain
to determine whether
not run tests
non-moving party. Anderson v.
for the
to such chemi
actually
exposed
tiffs
Inc.,
Lobby,
106
Liberty
U.S.
cals,
a
for
provided
(1986).
basis
which would have
2505,
B. 684, Chem. 473 Mich. 701 N.W.2d (2005). argue Defendants on appeal, that argue Plaintiffs the district court held, and the district court that Plaintiffs granting summary judgment erred in have failed demonstrate that both De- that, grounds Defendants on the absent fendants a duty breached of care testimony linking symp- Plaintiffs’ such a injuries. breach caused Plaintiffs’ particular pesticide, toms to a no reason- arguments We consider each of these be- jury able could have found that Defen- low. negligently dants caused Plaintiffs’ illness. agree.
We
Duty
of Care
that,
emphasize
We first
in decid
Defendants characterize Plaintiffs’
ing
summary judgment,
motion for
we
negligence claim as an allegation that De
justifiable
must draw all
inferences
fa
fendants
professional
violated the
standard
vor of Plaintiffs as the non-moving party,
exterminators,
of care governing
evidence is to be
“[Plaintiffs’]
be
therefore conclude that Plaintiffs’ claim
Cardiology
lieved.” Martin v. Toledo
fail
must
because
pres
Plaintiffs failed to
Consultants,
(6th
Inc.,
548 F.3d
еnt expert testimony to establish the stan
Cir.2008) (citing Liberty Lobby, 477
atU.S.
applicable
dard of care
to exterminators.
2505).
255, 106
According
S.Ct.
to Plain
and,
agrees
The dissent
although it ac
DeJonge,
tiff
she returned to her hotel
knowledges that
‘profes
the case is “not a
room to find men in masks spraying chem
case,”
sional
Dissenting
care’
Op. at
it
icals. She testified that
there was a
that,
argues
Michigan, expert
“[i]n
testi
“thick, horrid,
putrid
acrid
odor” in the
(and
mony in professional negligence
toxic
room, and that the air was “sort of clou
tort) cases like this one
required
(J.A. 490-91.)
dy.”
The haze of chemicals
...,”
summary
avoid
judgment
id. How
in the room was so thick that she could
ever, Michigan law
require
does not
ex
it,
(J.A.
it,
it,
“see
smell
taste
feel it.”
pert
494.)
testimony under the circumstances
expo
Within fifteen minutes of her
presented in this case. The cases the dis
“cloud,”
sure to the
DeJonge claims that
cites,
Monson,
sent
such as Lince v.
she became ill. Similarly, Plaintiff Gass
(1961),
Mich.
Plaintiffs claim that Defendants’ literally dissent’s statement is true—medi- negligence caused their illnesses. Accord malpractice cal “complex, cases do involve ingly, alleging as case simple negli professional, law, ques- and scientific-based” gence Michigan under Plaintiffs must “(1) demonstrate: tions—the dissent’s use of such cases to defendant owed (2) care, require a duty produce expert them Plaintiffs to testi- defendant (3) duty, mony breached that under plaintiffs entirely the circumstances is (4) injured, and misleading. malpractice that defendant’s breach In the medical plaintiffs’ injuries.” context, Henry caused Dow as demonstrated the cases the *11 430 expert in the absence of testimo- on, judgment applicable standard
dissent relies weigh of the factfinder is “beyond ny is the ken where able generally of care Cmty. McPherson on his or Thomas v. and evaluate the evidence based laymen.” 700, 705, Ctr., 400 Mich.App. ordinary experience. Health her (1986). result, “in an As a N.W.2d 629 testimony, Plaintiffs al- Through their against hospital, a malpractice for action еntered their hotel lege that men masks required to establish testimony is and, presence of Plain- despite room conduct, of standard applicable and similar indications tiffs’ suitcases standard, and causation.” of that breach use, a thick sprayed the room was such Michigan Supreme Court has Id. As the “thick, that a pesticides concentration of negligence and causa- recognized, proving acrid[,] horrid, cloud of toxic chem- putrid” malpractice cases is differ- tion in medical (J.A. 490.) Expert the room. icals filled negligence ordinary than in cases. ent necessary to allow a rea- testimony is not “conduct, a like that of involving a case jury to conclude that such actions sonable judgment, resting upon opinion, surgeon, ordinary negligent, are inasmuch as theory, ordinary or rules for determin- unacceptable it person understands that Lince, prevail.” ing negligence do residing place to enter a where another is (internal quotation marks at 848 N.W.2d place poison, and fill that with airborne omitted). omitted) (citation Pervasively for evacuation of the providing without within an enclosed spraying pesticides inhabitants, ventilation, or tak- appropriate humans, however, is not room inhabited ing precautions. other judgment, opin- resting upon ... “conduct also havе introduced evidence Plaintiffs ion, theory,” “matter[ ] and is not or aware of indicating that Defendants were strictly involving profes- special knowledge injuries that result from contact potential Although Michigan sional skill.” Id. pesticides at two of the common- least require produce an ex- plaintiffs courts By ly exterminating used cockroaches. to ex- pert malpractice in medical cases care, manufacturers of haz- regulation, federal plain applicable standard require produce Plaintiffs to chemicals must a “material Michigan law does not ardous (“MSDS”), present expert regarding safety employ- data sheet” applicable spraying standard of care using keep copy chemicals must ers such quarters in the confined of an chemicals of the for each chemical that MSDS occupied room. § 1910.1200(g)(1). Each use. C.F.R. must detail health hazards of “[t]he MSDS pres- claim in the
Accordingly, Plaintiffs’ chemical, including signs the hazardous negligently ent case that Defendants symptoms exposure, medi- akin to an sprayed pesticides is more ordi- recog- generally cal conditions which are a claim nary negligence case than involv- aggravated by exposure to being nized as ing professional negligence. The dissent’s § Ac- 1910.1200(g)(2)(iv). the chemical.” classify Plaintiffs’ claim as one attempt to SC, Suspend for one cording to the MSDS negligence is not involving professional Defendants, used Sus- Thus, supported by Michigan case law. “[hjarmful inhaled,” if and the pend SC is expert testimony even the absence does in- person MSDS warns that who “how the room should have been regarding product “remove[d] hale the should be poi- chemical sprayed or how the risk of attention.” reduced,” given fresh air” and “medical Dis- soning should have been (J.A. 527.) Demand CS The MSDS for senting Op. Michigan law does not warnings, in- summary offers even more serious prevent avoiding Plaintiffs from may in contact structing persons particular symptoms. Additionally, who come *12 claim pesticide protective expert testimony to wear cloth- Defendants that with is required to establish ing “[u]nprotected to avoid contact” with causation. Neither chemical, that of these claims has merit. and to either ensure being applied areas where Demand CS is Defendants use three different persons are well-ventilated or to have in to chemicals exterminate cockroaches at (J.A. 535.) In- respirators. the area wear SSI-50, in the Marriott Maui: Demand deed, mere skin contact with Demand CS CS, SC, Suspend and Defendants ad pesti- dangerous, is and the MSDS for this mit that exterminators were Plaintiffs’ pesticide gets cide warns that if the on a response hotel room in to earlier Plaintiffs’ person’s clothing, person skin or that complaint of a dead cockroach the room. clothing,” should off contaminated “[t]ake Nevertheless, argue Defendants —without immediately plenty skin with of “[r]inse that, citing any because Plaintiffs cases— minutes,” water for 15-20 and “[c]all [the exactly do not know which chemical they manufacturer], a poison control center or to, exposed they were “as a matter of law (J.A. 534.) doctor for treatment advice.” competently cannot that establish such a person A reasonable would understand mystery substance caused their claimed seriously injure that he or she could anoth- (Def.’s 39.) Br. ailments.” person by filling occupied er an hotel room law, however, Michigan requires a cloud of or chemi- with toxic hazardous only plaintiff that a claiming negligence fact, cals. Based on this and the evi- by prove preponderance his or her case a indicating denced introduced Plaintiffs evidence, require and does not that Defendants were aware that at least a plaintiff alleging exposure to a harmful they routinely some of the chemicals use prove certainty substance that he or illness, jury could cause serious a reason- exposed particulаr she was to a chemical. ably neg- could find that Defendants were Liberty Bay City, See Mut. Ins. Co. ligent inundating occupied hotel Dept., 367 Mich. 116 N.W.2d Water pesticide spray room with in the absence (1962). Therefore, may Plaintiffs sur any warnings occupants. of to the Accord- summary judgment vive if a reasonable ingly, granting the district court erred jury likely could find that it than is more summary judgment to Defendants on the to Defendants caused Plaintiffs be ground that Plaintiffs failed to introduce a of a haz exposed quantity sufficient expert testimony establishing that Defen- capable causing ardous substance of their duty dants breached a of care. injuries. 2. Causation Although Defendants introduced arguments sup- testimony indicating Defendants offer two substantial porting jury their belief that no reasonable could not have SSI-50 illness, they could find that the chemicals Plaintiffs al- caused Plaintiffs’ declined to legedly exposed any regarding were their ill- offer evidence the toxic caused First, that, argue Suspend Demand properties ness. Defendants be- of CS and SC. exactly cause Plaintiffs do not know which the record contains little evidence While to, SC, they Suspend a of exposed regarding chemical were reason- the toxic effects CS, jury they for Demand a able could not conclude based on the MSDS chemical, exposed dispensеd by were to a reasonable could conclude that De Defendants, many capable producing these could have caused mand is of CS Plaintiffs, sprayed by Defendants. Plaintiffs have experienced symptoms ample failed to in- evidence to demonstrate especially produced because Defendants rebutting that at least one of the chemicals Defen- troduce evidence description routinely of Demand CS as cock- MSDS’s dants used exterminate causing roaches, CS, highly dangerous capable causing toxin capable Demand myriad symptoms. symptoms. Plaintiffs further have exposed testified that visi- Natzke, Dr. Plaintiff De- According to *13 pungent pesticides ble and cloud of after Jonge experienced range symp- a wide of sprayed pesticides in their Defendants toms, headache, including swelling “a of occupied room while Plaintiffs the room. hands, face, profuse tongue, her feet and significant began It that Plaintiffs is also dizziness, itching, shortness of breath ... symptoms fifteen min- experiencing within slurring tongue, complaints a and swollen alleged exposure pesticides utes of their mouth, in drooling of a foul taste her and addition, In in their hotel room. Defen- fatigue and in her mus- complaints pain dants have offered no evidence to refute joints,” in a cles and addition to need to representation the of Demand MSDS’s CS naps “take afternoon which wasn’t the case as a chemical which could have caused 7, September before the incident on 2004 symptoms. Plaintiffs’ droopy eye.” ... diarrhea and left [ ] (J.A. 846.) experienced Plaintiff Gass evidence, Despite argue Defendants over, chills, sweats, fever, all “achiness in this Court’s decision Kalamazoo tongue, droopiness blisters on her on the Study Group River Rockwell Interna- face, right spasms, side of her muscle diz- (6th Cir.1999), Corp., 171 F.3d tional ziness, memory prob- blurred vision and requires Plaintiffs to introduce an “essen- ... fatigue lems weakness [ ] expert tial element” “admissible testi- green/gray tongue which she said turned mony” in That prove order to causation. (J.A. 847.) black about weeks later.” lfé case, however, broadly. cannot be read so The MSDS for Demand warns that it CS Kalamazoo River was an environmental many symptoms, can cause of these includ- case, involving contamination 38 miles system ing depression,” “central nervous polluted by shoreline which was the chemi- eyes, respiratory “irritation to skin and (“PCB”). polychorinated biphenyl cal Id. tract,” “headaches, dizziness, anesthesia, in at 1066. The defendant Kalamazoo ... and other central drowsiness nervous manufac- parts River owned automotive (J.A. 536.) Moreover, system effects.” turing plant, located 3200 feet from an MSDS, according to the the chemicals in entry waterways, into the tainted which liver, target sys- Demand CS the nervous surrounding leaked PCB into the soil tem, blood, tract, kidney, respiratory skin 1993, defendant, In 1989. Id. at 1067. the eye. Although the does not MSDS acting approval with the of state environ- symptoms, account for all of Plaintiffs’ authorities, repair mental undertook to tongues, such as their discolored Dr. Natz- damage environmental caused the ke symptom stated his affidavit that this efforts, 1989 leak. As a result of these pesticide poisoning. could be attributed cu- approximately defendant excavated yards
Accordingly, viewing
surrounding
the evidence in the
bic
of soil from the area
leak,
light .most favorable to Plaintiffs as the
and conducted soil studies reveal-
non-moving parties,
ing
had traveled no farther then
reasonable
PCB
symptoms
away
could find that
1400 feet
from the site leak—1800
Plaintiffs’
nearby waterway.
feet
Id. at
caused
to the
short of
Nevertheless,
regarding
the de-
evidence
the effects of Demand
Suspend
was named in the Kalamazoo Riv- CS or
SC.
fendant
lawsuit,
alleged
er
that the 1989 leak
n
complexity
pre-
of the factual issue
had contributed to the PCB contamination
justified
sented in Kalamazoo River also
along the 38 miles of shoreline. Id. at 1067.
requiring
plaintiff
its case
support
expert testimony.
Kalamazoo River
holding
that the defendant could not
concerned whether a
chemical spill,
held hable for the PCB contamination
be
allegedly cleaned
up
traveled
shoreline,
the court noted that
along
through
nearby
3200 feet of
soil to
wa-
plaintiff presented
no reliable
terway,
spread
and then
along
out
38 miles
showing
which refuted evidence
shoreline.
Id.
1066-67. Such an
that PCB from the 1989 leak never
beyond
inquiry
capacity
of twelve
nearby waterway.
reached the
Id. at
lay people, absent some assistance from an
that,
Accordingly, the court held
1072-73.
*14
expert.
analytical gap between the evidence
“[t]he
[by
presented
plaintiff]
and the infer
contrast,
In
allege
they
Plaintiffs
that
ences to be
...
too
drawn
is
wide. Under
entered a room Defendants filled with a
circumstances,
jury
such
should not be
chemicals,
cloud of toxic
and became ill
speculate
asked to
on the issue of causa within fifteen minutes of their
to
exposure
(quoting Turpin
tion.” Id. at 1073
v. Mer
Moreover,
the toxins.
the record shows
Pharms.,
Inc.,
rell Dow
959 F.2d
acting
that exterminators
on behalf of De-
(6th Cir.1992)).
1360-61
fendants entered the room to exterminate
cockroaches, and that at
pesticide
least one
assertions,
Contrary to Defendants’
that Defendants use to control cockroach-
principle governing Kalamazoo River is
es—Demand
capable
producing
CS—is
applicable
to Plaintiffs’ claims. Unlike
many
symptoms
from which Plain-
River,
in Kalamazoo
where the defendant
expert
tiffs suffer.
It does not
an
to
take
presented
affirmatively
scientific evidence
that,
circumstances,
conclude
under these
that
demonstrating
responsible
it was not
likely
Defendants more
than not are re-
along
for
PCB contamination
sponsible
injuries.
for Plaintiffs’
shoreline,
presented
Defendants
have
nothing
more than statements
their
If
anything, the decision Kalamazoo
agent
own
exterminator who works River bolsters Plaintiffs’ case. Like the
—an
claiming
for
that neither De-
River,
intro-
defendant Kalamazoo
who
Defendants —
similarly
mand
nor a
CS
toxic chemical
showing
duced scientific evidence
it
was used in Plaintiffs’ hotel room.
responsible
was not
for
contamina-
PCB
words,
other
while the Kalamazoo River
shoreline,
along
tion
Plaintiffs have
proved
defendant
absence of causation
introduced
scientific
evidence-—the
by introducing objectively verifiable scien-
shows that Demand
MSDS—which
CS
evidence,
tific
have not
Defendants
done
their,
causing
capable
symptoms. See
reasonable,
Though
certainly
so.
it is
as
Defendants,
for such negligence, basically and the dis- down to the required to show This case boils import phrases: “post relative of two Latin holding trict court erred otherwise. Trice, case, re- in this as the dissent 5. The dissent asserts that Plaintiffs were involved produce expert testimony quired to to estab- acknowledges, primarily relies on the reason- support case. To its lish causation this ing very district court decision which is argument, unpublished the dissent cites to an Further, panel appeal. on under before Michigan Appeals. Court of decision from the law, opinion Michigan unpublished an from Dissenting Op. (citing v. See at 437-38 Trice appeals precedential the state court of lacks P’ship, No. 2008 Oakland Dev. Ltd. binding value and not on state courts. is Mich.App. (Mich.Ct.App. LEXIS at *32 7.215(C)(1). Mich.App. R. 16, 2008)). Dec. While the facts similar to
435 ” Therefore, ipsa loqui- plaintiffs allege, and “res ergo propter hoc hoc the latter must logical a well have tur.” The former is known been caused the former. The applicable fallacy (recognized Michigan permit as such since Aristotle’s law of does not Rhetoric). fallacy that saying It is the unsubstantiated connection to be made, happened point why expert because effect A at some and that is opinion is B, alleged alleged required. respectfully after cause cause I therefore dissent logic majority’s was the actual cause. Such has nev- from the invocation ipsa of res enough summary judg- er been to survive a case where it is warranted. See, e.g., Forge, ment. Abbott v. Federal Cir.1990) (“[P]ost (6th I F.2d
hoc, legal not a rule ergo propter hoc is This case assessing involves the connec- causation.”). tion between to some chemical phrase applies physical
The latter narrow substance and a series of symp- in which the connection be toms that generally class cases are attributable to a type of wide variety tween untoward effect some of causes. The district court (and experts fault is so clear the likelihood of an held that the plaintiffs low) explanation alternative so that no oth relied on to alleged exposure connect the (and required uphold er evidence is relating defendant’s behavior it) classic, original, exposi verdict. The to the plaintiffs’ symptoms could not Boadle, principle Byrne testify any tion of this relationship. causal (Exch.1863), Eng. Rep. majority a nine affirms decision but never- century English pe summary teenth case where a judgment, theless reverses hold- Liverpool ing ordinary experience destrian on the streets of was suffices to by a flying (regardless struck barrel of flour that came connect chemical used dose) second-story composition out of the window of a com or to the symptoms. view, I explain my mercial storeroom. As will be this resolution is not supported *16 low, by by it seems clear to me that the common Michigan venera sense or the law governs ble British case does not describe the case that the case. Both that a counsel extremely lay juror before us. A barrel flour is expected of cannot be to understand unlikely to flying city complex come out onto a the medical and scientific facts charged necessarily street without some fault those that underlie such an attri- barrels, and, with the care accordingly, require of similar and it is bution of fault extremely unlikely flying expert explanation jury also that the prior allowing bar to any place majority’s rel of flour came from other than verdict. The that in assessment adjacent (and, supposes, the flour warehouse. this case one unlike in cases) most toxic tort there is sufficient case, plaintiffs’ symptoms, In our the jury chаrge plaintiffs’ for the to evidence which worsened at a later time and after illnesses to the defendants because the care, medical and which are known to have reasonably began develop illness to soon causes, variety possible a wide of are much only exposure post after the hoc —which obviously unspecified less connected to an than ergo propter hoc—reinforces rather potentially poisonous pesticide. dose of a preference expertise. refutes this for Instead, fault, more, finding without the fully latter that the represents weight circumstances classic To understand the bear, post Something majority fallacy hoc reasoning. potentially post asks the hoc time; happened begin point agree- causative it is with a one some- useful thing happened majority opin- untoward at a later time. ment between the and this care, that hoped negligent that their treat- were or the chemicals plaintiffs ion. The just sprayed that were caused the illness. testify not to the ing physicians could with which were physical symptoms course, Of the absence of evidence is not likely cause of diagnosed also to the but The the same as evidence of absence. testimony That would symptoms. such majority plаce holds the plaintiffs’ that the have concluded illnesses absent evidence there is sufficient circum- poisoning chemical explained best stantial evidence of breach and causation. exposure pesti- to whatever Specifically, the historical fact that some cides defendants had used was the best quickly expo- illness came on the heels of plaintiffs came in con- explanation of how speaks up sure for itself and makes for that poisoned tact with the chemicals missing causal otherwise links. and affirmed in the them. As rehearsed II
majority the district court opinion, held exper- lacked sufficient these doctors presented, question Thus is whether alleged tise to make the causal connection plaintiffs expert testimony needed by plaintiffs. prove much chemical this case to how ex posure is too much chemical or to exposure proffered testimony Plaintiffs also prove exposure whether the amount of ac experts second set of demonstrate tually alleged caused the harmful conse duty liability experts and breach. These view, quence. my majority pays too (whose challenged exclusion was not on issue, rushing little attention to this from appeal) dangers would have testified to the symptoms the fact of and odd appropriate and an standard legal conclusion of fault. It is of of care for use. district court Michigan course correct that under law they prepared excluded them because no complex some cases involve breach or cau report plan give opinion and did not questions sation within the ken of the about the chemicals that defendants actu- professional notwithstanding the or scienti ally precautions or the defendants used litigation. fic nature of the See Thomas actually undertook. Center, Health 155 Mich.App. McPherson (1986). 400 N.W.2d But the Together, missing assumes, majority without citation or au summary judgment means that the record thority, that this case is such a case. contains no admissible evidence that di- rectly duty shows breach or *17 Michigan, expert testimony profes In in alleged shows causation between the (and tort) negligence sional toxic cases like sure, breach and the illnesses. To be the required summary this one is to avoid plaintiffs’ evidence spraying recounts the judgment professional “unless the lack of pesticide of the and potential details the care is manifest that it so would be within toxicity at unspecified some dose of the knowledge experience the common and probably sprayed chemicals that ordinary layman the that the conduct was ” establishing propo- defendants. But these Monson, Lince careless.... v. 363 Mich. (1961). sitions does not establish the room 135, 845, how 108 N.W.2d 848 sprayed should have been or how the risk Michigan provide do not courts test for poisoning of chemical should have been knowledge, require what is common but do is, result,” reduced. That the evidence not does more than “a bad Jones v. Porret ta, 863, (Mich.1987), tend prove the defendants’ activi- 405 874 and N.W.2d ties, light negligence held that can- frequently of the relevant standard of have
437
ordinary
Partnership,
not
inferred based on
knowl- ment Ltd.
2008 Mich.App.
be
16,
(Mich.Ct.App.
LEXIS 2484 at *30
edge simply
unexpected injury.
from an
Dec.
2008)
Marriott,
Custer,
(citing Gass v.
See,
1,
501
Mich.
e.g., Woodard
473
(W.D.Mich.2007)).
1011,
(“[Wjhether
F.Supp.2d
1023
(2005)
522,
702 N.W.2d
Specifically, “the dose of chemicals to
may
fractured in
leg
be
the absence
plaintiff
had
exposed
been
had not
line
negligence
placing
when
arterial
determined,”
*32,
been
at
id.
and so “with
leg
...
a newborn’s
is not within
plaintiff
out evidence that
had been ex
understanding
jury....”).
common
posed
chemicals at a level that
approach comports
general
This
with the
harmful,
would
plaintiff
be
could not estab
injuries
in professional negli-
view
specific
lish
causation.” Id. at *35.
cases,
gence
especially
involving
those
health,
against
background
It is
that I
complex сhemicals and human
“are
dis-
agree
majority’s
with the
conclusion that
usually
immediately
not
and the
obvious
plaintiffs’ proof,
without
testi-
injury
connection between
and
mony,
summary judgment.
survives
everyday
not a matter of common sense or
Meridia,
experience.”
re
Ill
(N.D.Ohio 2004).
F.Supp.2d
matter,
a general
As
weakness
it,
I
require
As
understand
these cases
majority’s reasoning
is demonstrated
expert testimony
complex, professional,
by reference to the
language
emotive
used
negligence
or scientific-based
cases in or-
to characterize the facts. The words as-
dangers
der to limit the
associated with
and,
negligence
accordingly,
sume
make it
indulging
post
impulse:
hoc
it is too
easy
agree
lay person
that a
could come
easy
charge
an uncommon harm to the
to an informed conclusion about the case.
presence
mysterious
of a
substance.
instance,
For
the cloud of pesticide was
Properly
expert testimony op-
credentialed
hazardous,”
Op.
“toxic or
at
it
against
erates as a bulwark
such fallacious
dose,”
433-34,
“high
Op.
delivered a
guilt.
attribution of
As in the Daubert
chemical exposure because of defendants’
context,
applying
our concern in
these
behavior,”
“unacceptable
Op. at 430-31.
cases should be to
that the power-
“assure
But one cannot know that
these conclu-
engine
liability
ful
of tort
...
to-
points
(that
sions
should
based on scientific
be
right
wards the
substances
does
impacts
of how a chemical
the human
facts
destroy
wrong
ones.”
Elec-
General
standards)
body
legal
appropriate
are
Joiner,
136, 148-49,
tric v.
522 U.S.
118 without an expert explaining what amount
(1997)
(Breyer,
S.Ct.
fendants’ behavior
relation
standard
instance,
of care. For
which chemical was
A
sprayed?
aIs
hotel room “well ventilat-
reversing
the district court’s breach
dissipate?
ed”?
the chemical effect
Does
holding,
majority
the
asserts that a “fact- How fast? What is its effect on articles in
weigh
finder is
and evaluate the
able
long
a room? How
does it last? Must a
ordinary
evidence
on his or her
ex-
based
room be vacant to
sprayed?
be
perience,”
plaintiffs
the
Op.
because
law,
I
Michigan’s
As understand
tort
testimony
that the
established
defendants’
gaps
suggested by
the evidence
these
“thick, horrid, acrid,
action
in a
resulted
questions
bridged by
are too wide to be
putrid” cloud
in the room.
sure,
jury inference. To be
the difference
sentence,
previous
The
in the
“because”
knowledge”
between “common
and a fact
the effect of which is to make it unneces-
explained by expert
that must be
testimo-
sary
plaintiffs’
for the
to introduce
ny
precisely
has not been
defined. But
duty,
establishing
breach
be,
may
questions
wherever the line
law.
supported
posed
previous
in the
paragraph about
proper precautions
health effects and
(and
danger
As to the
of the chemicals
mitigate
appear
beyond
them
to me well
care),
presumably
duty
the evidence
Thomas,
ordinary
juror.
ken of a
See
(1)
majority
following:
cited
is thе
(upholding
This fails for two reasons. assertion B
First, (lay there is no evidence or ex- support majority’s premises the pert) majority’s analysis The causation is even the defendants did. There is about what It persuasive. less boils down to an asser- pesticide as to which was used no evidence tion that there is evidence of causation (that is, poisonous poi- how the “airborne sprayed pesti- because the defendants actually plaintiffs’ allega- cide, was—on the son” scientific evidence shows that one of tions, are between De- there differences pesticides they may sprayed have SC); that it would Suspend mand CS and physical symptoms, certain and the causes seriously harm linger long enough to plaintiffs experience did fact those someone; that evacuation of all complete missing premises The from symptoms. necessary; that property the room was argument spray defendants did —-that appropriately a modern hotel room is not dangerous, the substance known to be ventilated; precautions” or that “other spray was sufficient amount to cause necessary. harm, The assertion thus fails plaintiffs’ minutes-long expo- harm, on its terms. own sure was sufficient to cause can other causes be excluded with confi- Second, argument it without asserts dence, too to list. many etc.—are almost knowledge. the standard of care is common majority premises The holds that those unsupportable. This is Some by private opinion, can in a home individ can be inference. supplied be used however, why attempt explain makes no prepara ual or extra supervision without causal link between the defendants’ require tenting tion and some and total plaintiffs’ actions and the illnesses are Simply reading evacuation of the home. (whose experience. good common There is reports warnings as to within MSDS in- to think that it is not. For Suspend SC and Demand CS mirror the reason stance, every- ordinary understanding of warnings on the can of over-the-counter chambers1) problems does not include the my day Ant & Roach Killer in as medical tongue ordinarily explain proposition cannot the dif that black majority does To by sрraying pesticides.2 caused be majority may ference. The be correct that poison example, compare warning Call a control center or doctor 1. the ma- utes. For treatment advice.” for proposition jority “mere skin cites for the dangerous” with Demand CS is contact Indeed, publically available information opinion page 15 of the with the over-the- common, other, suggests many causes: more warning regarding counter contact with skin (1) yeast changes or in the normal bacteria clothing: clothing. "Take off contaminated or following antibiotic content of the mouth immediately ... for 15-20 min- Rinse skin treatment; (3) (2) poor hygiene; oral medi- *20 sure, ordinary lay person an be- probably plaintiffs’ exposure; fects of the and at- assumption tongue an that black gins tributing causation on the basis of order of something gone wrong, but is evidence lay (jurors events—are the people reasons question something alike) here is what that is judges are advised to take ex- it chargeable and whether is to the defen- guidance in pert drawing scientific conclu- Thomas, 400 dants’ actions. See N.W.2d sions. I believe our require courts should (rejecting argument at similar to an guidance. I respectfully dissent. “injury plaintiffs’ suscep- because the was all explanations,
tible to a number of required knowledge medical to dis-
cern.”). reliance, 20-21, at majority’s pages
on Dr. that pesticide Nаtzke’s statement tongue could cause black to show possess knowledge that the would Sherry DeLISLE, Plaintiff-Appellee, necessary to make a reliable attribution of First, persuasive. fault is not Dr. Natzke say ‘plaintiffs’ injuries does not LIFE SUN ASSURANCE CO. OF pesticides are the result of or even that CANADA, Defendant- tongue.
these could cause black Appellant. Second, only is there a lack of knowl- No. 08-1142. edge about, about how the condition comes reliance on Natzke’s per- statement would United States of Appeals, Court lay people mit to make a determination Sixth Circuit. about the cause of unfamiliar medical only post tempo- condition based on a hoc Argued: Oct. 2008. ral connection and an abstract statement Decided and Filed: March aof risk of harm.
IV
We need look no further than this
case for an illustration of the concerns
underlying my belief that these standard require expert care and causation issues
explanation. The majority’s flaws
reasoning eliding the difficult scientific —
questions; conflating colloquial usage of “high
terms like “toxic” and dose” with
scientific conclusions about health ef- bismuth, containing Pepto- by plaintiffs cations such as OSHA document included in the Bismol; (4) regular use of mouthwash con- summary judgment record describes (5) taining oxidizing agents; drinking ex- diagnosis “Multiple Chemical Sensi- cessive amounts of coffee or tea. See Alan "[tjhere tivities” admits that insufficient Carr, Hairy Tongue? What Causes Black relationship scientific evidence to confirm a Mayo Specialist, Clinic: Ask a Dental avail- possible symptoms.” between ... causes and http://www.mayoclinic.com/health/ able J.A. 564.
black-hairy-tongue/HQ00325. Similarly, an