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Alder v. Bayer Corp.11/26/2002
s to chemical fumes in radiology departments and mortality patterns among press photographers. Twenty-seven of the sources reviewed specifically address the dangers of glutaraldehyde exposure. The titles of these articles alone list asthma, proctitis, tachycardia and palpitations, proctocolitis, allergy, peripheral sensory irritation and hypersensitivity, and epistaxis as possible side effects of such exposure. One "Chemical Caution" note labels glutaraldehyde "an effective but lethal sterilizer," and another calls it a potential health risk to nurses. Thirteen additional studies target the dangers of hydroquinone. These include a study on the mortality of technicians engaged in the manufacture and use of hydroquinone.
Furthermore, subsequent to Allen, the Fifth Circuit Court of Appeals decided Curtis v. M&S;Petroleum, Inc., 174 F.3d 661 (5th Cir. 1999). In Curtis, the plaintiffs alleged injury from workplace exposure to benzene. Id. at 664. No definitive air quality tests were available. Id. at 671. The plaintiffs' expert witness relied on, inter alia, knowledge of the working environment and observation of the workers' symptoms to conclude that refinery workers were exposed to benzene at several hundred times the permissible level. Id. at 671-72. The court admitted the expert's testimony that in the existing circumstances, the workers' symptoms themselves indicated high levels of benzene exposure. Id. at 671. The Curtis court held that "the law does not require plaintiffs to show the precise level of benzene to which they were exposed." Id. We find the closely analogous Curtis more persuasive than the earlier, more distinguishable Allen.
A number of other circuits have also admitted expert testimony without precise proof of toxic levels of exposure. In McCullock, 61 F.3d at 1040, proof of exposure consisted of testimony that the plaintiff worked within thirty feet of a hot glue pot and could smell the fumes. Nevertheless, the court admitted expert testimony that exposure to the fumes had caused plaintiff's throat polyps. Id. at 1043-44.
In Westberry, 178 F.3d 257 (4th Cir. 1999), the court rejected defendant's challenge to plaintiff's expert medical testimony where accumulations of talc were evident in the environment although the level of airborne talc was never measured and plaintiff's tissue concentration of talc was never determined. Id. at 263-66. The court stated that
it must be recognized that " nly rarely are humans exposed to chemicals in a manner that permits a quantitative determination of adverse outcomes. . . . Human exposure occurs most frequently in occupational settings where workers are exposed to industrial chemicals like lead or asbestos; however, even under these circumstances, it is usually difficult, if not impossible, to quantify the amount of exposure." Id. at 264 (quoting Federal Judicial Center, Reference Manual on Scientific Evidence 187 (1994)).
In Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802 (3d Cir. 1994), the plaintiff, a medical doctor, developed debilitating symptoms and was forced to give up her hospital position after her residence was sprayed with pesticide. Id. at 805. The symptoms included cognitive impairment and general chemical sensitivities. Id. Air quality samples taken nine months after the final application of pesticide indicated "nondetectable levels of pesticides." Id. The Third Circuit concluded that "it is for the trier of fact to determine what weight to give the ambient air test results as an indication of exposure." Id. at 809. We agree.
AGFA recognizes "the dose makes the poison" as one of the "central tenets" of toxicology. It admits, and even cites authority for the p
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