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Alder v. Bayer Corp.11/26/2002
roposition that all chemicals may be harmful if consumed in large quantities. In so doing, AGFA inadvertently concedes to the reasoning of McCullock and Kannankeril. Specifically, if all chemicals are harmful and the poison is in the dose, then wherever chemicals are part of the environment, victims' toxic symptoms are themselves evidence of harmful levels, at least as an issue of triable fact.
Furthermore, common law tort doctrine declares that "one who injures another takes him as he is." Brunson v. Strong, 17 Utah 2d 364, 367, 412 P.2d 451, 453 (1966). If AGFA has not breached a duty of care to Technicians, then the level of airborne chemicals in the mammography suite becomes irrelevant here. If, however, AGFA has committed the tort of negligence in allowing the Curix machine to be operated in an environment where the ventilation did not meet its own safety standards, then "toxic level" becomes any level that is harmful to these specific plaintiffs.
The district court's declaration that "plaintiffs are unable to prove exposure to any chemicals, let alone levels known to cause known toxic effects" ignored substantial testimonial and circumstantial evidence of Technicians' prolonged exposure to x-ray processing chemicals. The court invoked summary judgment although Technicians' level of exposure and even the operating definition of toxic level are vigorously contested issues of fact. In so doing, the court abused its discretion. The right of supplicants to prove that which they are able in court is a fundamental tenet of our jurisprudence. See Miller v. USAA Cas. Ins. Co., 2002 UT 6, 66, 44 P.3d 663 (stating that by inappropriately dismissing claims, "the district court unconstitutionally denied [the plaintiffs] the opportunity to have their day in court"); Gitsch v. Wight, 61 Utah 175, 178-79, 211 P. 705, 706 (1922) ("That every person has a right to his day in court and an opportunity to be heard before he can be deprived of a justiciable right is too elementary for discussion. . . .").
Therefore, Technicians' claims cannot be dismissed on the basis that incomplete tests administered after remediation by AGFA's own expert do not show "toxic" levels of exposure under AGFA's own definition of toxic. To thus stifle the unresolved factual issues of chemical exposure under a cloak of premature summary judgment effectively denies Technicians their day in court. Consequently, we reverse summary judgment on the issue of exposure.
VII. CAN A TEMPORAL RELATIONSHIP BETWEEN CHEMICAL EXPOSURE AND INJURY SUPPORT THE CAUSATION PRONG OF NEGLIGENCE?
The district court addressed proof of causation no further than finding that it failed because Technicians could not prove exposure. AGFA relies on Moore v. Ashland Chemical Inc., 151 F.3d 269, 279 (5th Cir. 1998) (en banc), in which the Fifth Circuit Court of Appeals held that the district court did not abuse its discretion in excluding expert testimony that plaintiff's exposure to a toluene mixture caused his subsequent reactive airways disease. In that case plaintiff's expert could cite little documented evidence that toluene causes reactive airway disease. In the case before us, however, the symptoms that Technicians have suffered are documented in connection with exposure to photographic processing chemicals. Any argument that their illnesses stem from other causes creates an issue of triable fact.
AGFA argues that numerous courts have rejected as unreliable the inference of causation from a temporal relationship between the exposure and illness. For this proposition, it cites Porter v. Whitehall Laboratories, Inc., 9 F.3d 607, 611-12 (7th Cir. 1993), and In re Breast Implant Litigation, 11 F.
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