Petition for Writ of Certiorari — Mills v. Para-Chem (No. 06-41)

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Supreme Court, U.S.

~ FILED

ae,

X-

06-41 JUL3 2006

OPFICE OF THE CLERK

No.

SUPREME COURT OF THE UNITED STATES

GERALDINE MILLS, M. D.

Appellant,

PARA-CHEM, d/b/a/ PARA-CHEM SOUTHERN, INC.,

Appellee

On Petition For Writ Of Certiorari

To The United States Court of Appeals

for The Firs? Circuit

PETITION FOR A WRIT OF CERTIORARI

July 6, 2006

Geraldine Mills, M.D. Jeffrey Gladstone,Esq

19] Squantum Drive Michael Gamboli,Esq

Warwick, Rhode Island 02888 180 South Main St

401-463-8433 Providence Rhodelsland

401-861-8200

QUESTIONS

Are there substantial due process questions as to render it

unconstitutional under the Due Process and Equal Protection

Clause of the Fourteenth Amendment under 28 U.S.C. 1257

Is Due Process denied when the record below is totally devoid

of evidence necessary to determine the facts on the record.

When does statute of limitations begin to accrue in instant case

1) when “injury” took place not just on July 19, 1996 but every

day after that date until physician informs her of “residual

vapors” 2) with immediate symptoms dizziness, headache or

later chemical induced abdominal! porphyna, loss of libido or

even later chronic latent separate and distinct injury of immune

disregulation and TILT ( toxicant induced lowered tolerance)

to items as certain perfumes, fabric softeners, room and car

deodorizers 3) does it accrue from July 19, 1996 with mere

speculation as to what “yellow substance was

Does the “discovery rule” well established in Rhode Island law

apply here when

1) plaintiff did not know for fact she was injured on

July 19, 1996 or would never have reentered the office; did not

know of chronic injury until some time in 2001 staying in next

office , 2) plaintiff did not know of the injury-causing wrongful

conduct (exercising all reasonable diligence by a) asking

outright was glue used, requesting answer to this question in

interrogatories, in testimonial) until September 5-6, 2001, 3)as

in Wilkinson and Lee “opportunity to become cognizant of

injury and cause”

Does the fact “discovery rule” has only been applied to cases

of medical malpractice, real estate, and drug product liability

cases in Rhode Island mandate that this rule cannot be applied

in other situations even if pertains to that other situation

1) when Court admits that there has never been such a

case in Rhode Island regarding carpet and glue

2) was due process denied this plaintiff if “discovery

rule” was used in prominent Rhode Island lead case many

years after injuries resulted

3) as in Renaud can this be considered a “certain

narrowly defined factual stituation

Should defendant’s action go unnoticed when it claims to be

manufacturing and distributing a water based product when

1) in fact it contains many VOC’s that are toxic and

carcinogenic

2) is in violation of Federal Hazardous Labeling Act

3) and has a potentially harmful affect on all public

consumers

4) as in Renaud “party asserting statute of limitations

attempts fraud, misrepresentation to conceal existence of cause

of action

Did defendam in this case conceal its own identity (conceal

composition of MPG) or did defendants ( not inclusive of John

Doe) in Mills vs Beaulieu, State Sales, Robert Weisberg

conceal Para-Chem’s identity or did all conceal Para-Chem’s

identity; did State Sales know MPG contained VOC’s

1) State Sales wrote MPG is nontoxic and water based

2)Should Defendants in Mills vs Beaulieu et al be held

totally responsible for defective product, fraudulent claim

MPG has “0" VOC’s; is not this case about different defendant,

different product, different injury not before litigated

What influence does the case Mills vs Beaulieu, State Sales,

Robert Weisberg, John Doe Cement and case Mills vs

Nahabedian have with regards to bringing complaint against

Para-Chem for its product Magnum Plus Gold (MPG)

itl

1) Was Due Process denied Mills when Justice denied

all affirmative evidence of September 5-6, 2001, expert

witnesses, and trial |

2) as in Arnold denial of discovery process for factual

investigation a) not allowing experts advantage of having

affirmative results, to testify with new knowledge MPG not

water based violating Federal regulations regarding CAS

identification b)barring Kenneth Reed, PhD IH as expert

(previously testified in carpet injury cases wica same model

[peer reviewed] never before denied all the while denying him

use of evidence c) labeling Toxicologist Joseph Regna, M.D.

“ learning impaired” all the while denying him use of evidence

Is it in violation of Plaintiff s Due Process to have decisions of

other cases submitted making collateral estoppel superfluous

Did Judicial abuse of discretion foster need for this claim being

brought when a Rule 50 b motion was not overturned (as is

usual practice in RI); defendants, subpoena of subcontractors,

product MPG were all concealed all not in the interest of

judicial economy

Is the acceptance of causation a matter of law

When do the benefits of design not outweigh the risks of

danger inherent in the design of a product ( Is not improper

design or lack of warning a factor in strict hability with

reasonableness of Defendant’s conduct )

Would plaintiff been able to proceed in prior case for both

acute “symptoms” as injury and for risk of prospective harm (If

permitted to seek recovery in prior case only for present injury

would plaintiff be barred on the ground of having split cause of

action from bringing a claim against a defendant in the future

Should a separate and distinct injury actually be sustained

TABLE OF CONTENTS

Questions Presented

Table of Contents

Table of Authorities

Table of Appendices

Introductory Paragraph and Opinions Below

Jurisdiction

Statement of the Case

Argument- Reasons for granting of appeal

Decision below conflicts with Precedents

Conclusion

I-11

TABLE OF AUTHORITIES

Page

Adams vs Johns-Manville Sales Corp 727 F.2d 533

5" Cir 1984 30

Ager v Jane C. Stormont Hospital & Training

School for Nurses 622 F.2d 496 (10" Cir 1980) 27

Allen vs U.S. 20,21

Id at 902

Amb Found Research J. 487, 496-503 (1982) 19

Anderson v W.R. Grace & Co supra 628 F. Supp 1219

1226 D. Mass 1986

Anello and Uhiman ys Shaw 2001 23

Amold vs R.J. Reynolds Tobacco Co, 956

F. Supp at 114-117(D.R.1. 1997) 29

Barker vs Lull Engineering Co (1978) 20 C. 3d 413, 143

Cal. Rptr 225 27

Basko vs SterlingDrug Co 588 F. Supp 247, 405-429

(D. Utah 1984) 21

Betrand vs Johns-Manville Sales Corp 529 F. Supp

539,544 ( D.Minn 1982) 19

Beshada vs Manville Sales Corp 90 N.J. 191, 447

A.2d 539 (1982) 28

Bichler v Eli Lilly & Co 35 NY 2d 571, 450 N_Y/S. 26

2d 776, 436 N.E. 2d 182 (1982)

Boldt vs Jostens, [nc 261 N.W.2d at 93 18

Braiford vs Susquchanna Corp 586 F. Supp 14, 131.C_D.

Colo. 1981) 30

eee

Bragg vs Shoppers World, Inc 102 RI 8, 227 A.2d 582

(1967) 4

Conway vs Blackfeet Indian Developers, Inc 669

P.2d 225 (Mont 1983) 18

Cox Broadcasting Corp v Cohn 420 US 469, 482-483

(1975) 1

Cramer vs Morrison, 88 Cal. App. 3d 873, 153 Cal Rptr

865 (1979) - 25

DiGiacomo vs Franzen 680 F.2d 515 (7" Cir 1982)

Court No. 3 | 25

Eagle Picher Industries Inc vs Cox 481, So.2d 517

Fla App 1985 30

FDIC vs O’Flahaven 857 F. Supp 154, 157-58

D.N.H 1994) 3

Feldman vs Lederle Laboratories 97 N.J. 429,479 A.2d 374

1984 23

Ferebee vs Chevron Chemical Corporation 736 F.2d

152¢,1534 D.C. Cir 1984 16,17

Fiske vs Kansas 274 US 380 385-86 (1927) 15

Frye vs U.S, 293 F. 1013 (D. C. Cir. 1923) 23

Garner vs Louisiana 286 US 157, 163 (1961) 2

Gordon vs Para Chem 1985 5,27

Graver Mfg Co v Linde Co 336 U.S. 271,275 (1949) 2

Haines vs Kerner 404 US 519, 520 92 S. Ct 594(1972) 4

Hart » Mazur 903 F. Supp 277, 279 (D.R.1.1995) 29

in Re Japanese Electronic Products 723 F 2d 238 276-279

_ 3°*Cir 1983 oa

Vii

Jackson vs Johns-Manville Sales Corp 781 F.2d 394

5" Cir 1986 td at 520, 521 1]

Jenkins v United S. 4+. 307 F.2d 637, 646 (D.C.

Cir 1962) 24

Kehm vs Proctor & Gamble Co 580 F Supp 890

N.D. Iowa 1982) 20

Koller vs Richardson-Merrell, Inc No. 80-1 258 (D.D.C.

Filed May 19, 1980) 20

Kyles Vs Whitley 514 U.S. 419,422 (1995) 13

Laswell vs Brown 524 F. Supp 847 (W.D. Mo. 1981) 1]

Martinez-Ferrer vs Richardson=Merrell 164 Cal Rptr

591-595 (2d Dist 1980) 10

McEven vs Ortho 270 Or 375,528 P.2d 522 (1974) 19

McGovern Toxic Substances Litigation in the 4"

Cir, 16 U. Richmond L. Rev. 247,257 ( 1982) If

Mink vs Univ Chicago 460 F Supp 713 (ill. 1978 i.

Napue vs Illinois 360 US 264 271- 72 (1959) 15

O'brien vs Muskin Corp., 94 NJ. 169,463 A.2d 298

1983 28

Parker vs Employers Mutual Liability Insurance CO

444 S.W. 2d 43 (Tex 1969) 19-20

Parklane Hosiery v Shore 439 U.S. 322 (1979) 26

Perreirays Dow Chemical Co Inc 181 CAL Rptr 364

Cal App 1982 15

Plummer vs Abbott Labs 568 F Supp 920,07DRI

1983 1]

Renaud vs Sigma Aldrich Corp 562 .\. 2d 713-715

RI. 1995 zy

vill

Rheingold vs E R Squibb & Sons, Inc. No. 74- 3420

S.D.N.Y Oct 8, 1975) 11

Rodi vs Ventctuolo 941 (1" Cir 1991) 4

Salem vs U.S. Lines Co 370 U.S. 31 (1962) 23

Sentilles vs InterCaribbean Corp 361 US 107 (1959) %6

Sindell vs Abbott Laboratories 26 Cal 3d at 605,

607 F.2d at 933, 163 Cal Rptrat | yea 26

Sterling vs Velsicol Chemical Corp. F.2d (6" Cir 1988) 23.

Summers vs Tice 33 Cal. 2d 80 (1948) 21

Thompson vs City Louisiana 362 U.S. 199 (1960) 2

United States vs Aluminum Co of America, 148 3

F.2d 416,446 (2d Cir. 1945) LL. Hand, J.)

United States vs Garland 991 F. 4d 328,332 (6" Cir 1993) 3

United States vs Jones 29 F.3d 1549, 1553 (11™ Cir 1994) 2

Washington vs US 357 U.S. 348 (1958) 2

Webb vs Fuller-Brush Co 378 F.2d 500 3% Cir 1967 23

Wells vs Ortho Pharmaceutical Corp 615 F Supp. 262,

266-67 (N.D. Ga. 1985) 16

Wilkinson v Harrington 243 A.2d 745 747-48

753 (RL. 1968) 29

Wilson vs Johns-Manville Sales Corp 684 F.2d III

D.C. Cir 1982 |2

Constitution

Amendment XIV, United States Constitution 2,30

Federal Statutes

28US.C. 1331 2

28 U.S.C. 1257 (a) I

42 U.S.C. 1254 (1) 1983 l

Title VII of Civil Rights Act 1964 2

Equal Employment Opportunity Act of 1972 U.S.C. 2000 2

Federal Substances Labeling Act 27

15 U.S.C. The Toxic Substance Control Act of 1976 (TSCA)

2601-2629 5 28

42 U.S.C. The Resource Conservation and Recovery Act of

1976 ( RCRA) 6901-6987 28

42 U.S.C. The Superfund Amendments and Reauthorization

Act of 1986 (“SARA”) 9658(a) (4) (A) Dec 11, 1980

Restatement of Torts 402A 28

Restatement 2™ of Torts July 1982 12

Section 432 (2) of 2nd 2]

4 Restatement of Torts pg 224 29

Federal Rules of Civil Procedure (FRCP)

104a

201 (b)

401

403

702

703

704

Books, Reports, Publications

Casarett and Doull’s Toxicology The Basic Science of

Poison, 3” Ed, John Doull, M.D., PhD 1986 13

Federal Practice and Procedure 256-257

21. C Wright & K Graham {d at 485 3

Ginsberg & Weiss Common Law Liability for Toxic Torts

9 Hofstra L Rev 859,889-892 25

McCann, J. L et al Potential risks from exposure to organic

compounds in indoor air LBL Report LBL- 22473

(1987) 21

E McElwain 63 Harvard L Rev 5, 13 (1949) 5

HW Perry “Deciding to Decide” (1991) 30

Prosser and Keeton on the Law of Torts (S* ed. 1985) il

W Prosser supra note 334 s 41 at 242 18

Justice Rhenquist- “ Oral Advocacy: A Disappearing Art”

35 Mercer L. Rev 1015, 1027 (1984) 5

APPENDIX

TABLE OF APPENDICES

Judgment of United States Court of

Appeals for First Circuit la

Order of United States District

Court for the District of RI 2a

DATA CHEM results 3a

VMA levels

ACCU CHEM results 4a-Sa

WOHL for RI DOH results 6a

MSDS on Product MPG 7a-8a

Carcinogens, McCann et al 8a

Report and Recommendation

Of United States District Court for

The District of Rhode Island

9a-22a

Evaluations by Drs Rogoff and

Pomm 23a-26a

State Sales Answer to Complaint

26a

Interrogatory Answers in

Mills vs Beaulieu 27a-28a

State Sales alleges MPG

Nontoxic 28a-29a

Objection to exclusion of experts

Farrel and Sampson 29a-30a

Kenneth Reed, PhD,JH

Carpet Injury Cases 3la

INTRODUCTORY PARAGRAPH

Appellant, Geraldine Mills, M.D. is appealing from the

judgment below as ordered by the United States Court of

Appeals For the First Circuit in the case of Mills v. Para-Chem,

d/b/a Para-Chem Southern, Inc entered April 7, 2006.

This appeal of that decision is submitted to show that

this Honorable United States Supreme Cow; has jurisdiction of

this appeal and that substantial questions are presented.

CITATIONS TO OPINIONS BELOW

The United States Court of Appeals For the First Circuit

affirmed the denial of Appellant’s ( heretofore known as Dr.

Mills), appeal from the lower Rhode Island District Court as,

“ Essentially for the reasons given by the magistrate judge in

his report and recommendation, dated April 11, 2005, we

affirm the dismissal of plaintiff's claims as time barred.”

JURISDICTION

This case falls within this Court’s Jurisdiction under 28

U.S.C. 1257 (a) and offers an ideal vehicle to resolve the

questions presented. This Court has jurisdiction under “fourth

Cox category” to review state court ruling if 1) “ reversal of the

state court on the Federal issue would be preclusive of any

further litigation on the relevant cause of action,” and 2)

refusal immediately to review the state court decision might

seriously erode federal policy.” Cox Broadcasting Corp v Cohn

420 US 469, 482-83 (1975), for application of this general

jurisdiction rule. Petitioner if so favored by this Court would

deem the state law causes of action by the District Court of

Rhode Island unconstitutional as so applied. Also jurisdiction

under 1254 (1) 42 U.S.C. 1983 as civil rights cases, applies.

A litany of events resulted in the deprivation of

substantive and procedural due process of Dr Mills. Actionable

misconduct by those so involved has deprived Dr Mills of her

civil rights. Jurisdiction of the state court was also invoked

under Title VII of the Civil Rights Act of 1964 as amended by

the Equal Employment Opportunity Act of 1972 U.S.C. 2000

and under 28 U.S.C. 1331. Dr Mills has been denied her

procedural, civil, constitutional rights as allowed by the

Fourteenth Amendment and denied her appeal. She was not

allowed any evidence, leaving the record totally devoid of

affirmative evidence necessary to determine the facts on

record. Thompson v City of Louisiana 362 U.S. 199 (1960) the

Court stated the question was whether disorderly conduct

charges “were so totally devoid of evidentiary support as to

render his conviction unconstitutional under the Due Process

Clause of the Fourteenth Amendment..... whether rests upon

any evidence at all.” Dr Mills’ case is resting on no evidence

at all. Washington vs United States 357 US 348 (1958) and

Garner v Louisiana 368 US. 157, 163 (1961) all reversed

because of the“insufficiency of evidence.” Unless there is a

“...very obvious and exceptional show of error...,” this Court

may not review.Graver Mfg v Linde Co 336 US 271 (1949). Dr

Mills’ case is a prime example of such an obvious and

exceptional show of error. In further violation of Dr Mills’ due

process and equal protection was the use of other ‘court’

proceedings in this case and in Mills vs Beaulieu et al. United

States vs Jones 29, F.3d 1549, 1553 (11" Cir 1994) “ Fed R.

Evid. 201 (b) provides a judicially noticed fact that must be

one not subject to reasonable dispute in that it is either (1)

generally known within the territorial jurisdiction of the trial

court or (2) capable of accurate and ready determination by

resort to sources whose accuracy—eannot reasonably be

questioned.” The RI Medical Board of Licensure Temporary

Suspension Order of Dr Mills’ license ends with a very

inaccurate as well as slanderous statement. Justice presented

this to the jury in the constructive eviction trial Mills vs

Nahabedian. At the time it was presented the case of Mills vs

Nolan ( re medical license) was on appeal and no decision

“was found to be true.” Even if this fact were found to be true

on appeal, ( there is no basis for this allegation) if it were

permissible for a court to take judicial notice of a fact merely

because of being found to be true in some other action, the

doctrine of collateral estoppel would be superfluous. 21 C.

Wright & K. Graham, Federal Practice and Procedure: 256-

257.Depriving Dr Mills from a right to jury with her evidence

where the facts were not indisputable violated her

constitutional guarantee of trial by jury. Id at 485. United

States v Aluminum Co of America 148 F.2d 416, 446 (2d Cir

1945). In this case there are many elements of great public

interest and principles of law. Dr Mills’ evidence reveals that

a product manufactured and distributed by defendant Para

Chem was done with misrepresentation, fraudulent claims, and

concealment. Dr Mills’ lab test results from reputable US

laboratories were denied her as evidence. Then one parent with

no medical background whatsoever made slanderous

comments describing Dr Mills as having “erratic psychological

behavior.” These false allegations were printed by the RI

State Supreme Court in numerous documents which now can

be read on the internet. All the while to clear her reputation

and name, Dr Mills has willingly undergone all psychiatric

testing and multiple evaluations in several states where she

held licenses. All reports read, “ no psychopathology, no

thought disorder, no personality disorder, no impairment.”

Only for the limited purpose of recognizing a ‘judicial act’ that

the order represents may a court take notice of another court’s

order, United States v Garland 991 F.2d 328, 332 (6" Cir 1993)

It “cannot judicially notice the veracity of allegations in

affidavits...” FDIC v O’Flahaven, 857 F. Supp 154, 157-58

(D.N.H. 1994). Without legal representation, now In chapter 7

Bankruptcy, due to a series of events which have literally

robbed her of her property rights, her career, and the hesitancy

of legal counsel due to the “political overtone,” Dr Mills

should not be held to the standards of counsel. According to

Rules of Civil Procedure 8 (e), ~ no technical forms of pleading

are required. A pleading is sufficient if it contains 1) short and

plain statement of claim showing pleader is entitled to relief 2)

demand for judgment (RCP 8(a)).” Dr Mills cites Haines vs

Kerner 404 US. 519,520, 92 S. Ct.594,596,30 L.Ed.2d

652(1972), * her pleadings are held to a less stringent standard

than those drafted by lawyer,” and in Rodi cs Ventetulo, 941

F.2d 22,23 (1% Cir 1991),” to be read with an extra degree of

solicitude.” Defendant states, 1) “ a claim upon which relief

may be granted was not stated by plaintiff.” Dr Mills did set

forth claims for relief as per Fed R. Civ P. 8(a), 8(e) - a short

and plain statement reads as, “ Wherefore, plaintiff demands

judgment against defendant Para-Chem, alias for personal

injury, loss of business, earning capacity plus interest and cost

and attorney fees as this court may allow as well as punitive

damages. Plaintiff claims a trial by jury on all issues.” It

is well established RI practice that a pleading should not be

dismissed for failure to state a claim unless the pleader can

prove no set of facts in support of the claims to entitle her to

the relief sought Bragg v Shoppers World (1967).When there

‘g room for doubt, courts historically have disfavored 12 b

motions. But here, Dr Mills did claim below that her

constitutional rights and her due process were denied.

Defendant Para-Chem, alias, presented a myriad of possible

defenses twelve (12) in number for the court to deny Dr Mills’

case. The Defendant ( heretofore known as Para Chem), went

so far as to allege that it was Dr Mills’ own fault that she was

subjected to the vapors from their product Magnum Plus Gold

( heretofore known as MPG) on the one hand, yet on the other

denies that MPG was ever used in the installation of carpeting

in Dr Mills’ rented Pediatric office, and even further

contradictory, claims MPG is water based and contains “0”

VOC’s (a potentially harmful claim to all consumers). They

simply cannot have it both ways. Para-Chem alleged to the

courts that Dr Mills had some preexisting medical problem but

never tells the court what this might be; Para-Chem alleged to

the courts that Dr Mills used MPG in some unintended

unreasonable way when in fact, Dr Mills did not even know for

fact if adhesive or glue was used in the installation until May

10, 2001 when by court order from Justice Thurnberg, Dr Mills

was allowed to obtain sampling from the office. All

Defendants in Mills vs Beaulieu, State Sales, Gloria

Nahabedian, and Robert Weisberg informed Dr Mills that she

was not taking any risks whatsoever by returning to the office

to practice pediatrics within just 24 hours. It simply cannot be

had both ways.

3 The First Court of Appeals has entered the order to

deny Dr Mills’ appeal based on the instant case being “time

barred.” This is the basis for argument but the other issues will

be addressed because they are based on no evidence

whatsoever. Justice Rehnquist, “ Oral Advocacy: A

Disappearing Art,” 35 Mercer L. Rev. 1015, 1027 (1984), “

Nonetheless, the mos’, common reason members of our Court

vote to grant certiorasi is that they doubt the correctness of the

decision of the lower court.” E McElwain 63 Harvard L Rev 5

13 (1949) “......because the decision below was unjust,

unreasonable, or plainly wrong...” Yet in Mills vs Para Chem

we do find a case of public importance. Any consumer (Gordon

vs ParaChem 1985) of MPG could potentially 4e harmed and

this cannot go unnoticed.

STATEMENT OF THE CA‘ °

Dr Mills, a Pediatrician, maintained an office rental for

her practice of medicine at 65 Jefferson Blvd, Warwick Rhode

[sland 02886 (lower level) from May 15, 1994 until August 15,

1996; renovating suite making it suitable for pediatric practice

during her first few months rental, by adding a small exam

room. March April 1996, after two years of peaceful enjoyment

Elisa Liberto DMD (above tenant) by human error allowed

hazardous chromium oxide xray tank fluid to overflow into Dr

Mills’ suite. Liberto did not notify OSHA or DEM but told

landlady it was melting snow. Mills contacted DEM and they

confirmed it was hazardous recommending the carpet in larger

room be changed. Landlady and Mills agreed only that one

room would be renovated so as to not further inconvenience

Mills during peak school exams. Three months lapsed before

renovation began (landlady brought claim against Liberto’s

insurance). That room remained closed off since April 1996.

On July 18, 1996 Mills went to office to retrieve patient

messages and found landlady removing Mills’ confidential

patient medical records/personal belongings (Mills refrained

from seeking local enforcement). Landlady told Mills she

could return the next day to resume practice, July 19, 1996.

Five hours into practice on the 19", Mills had acute symptoms

of dizziness, headache, scratchy throat, burning eye. In ensuing

weeks Mills altered practice only doing sick checks because of

otfensive odor in suite and recurring similar symptoms with

patients, employees, and family all making verbal and wnitten

complaints. Mills contacted RI DOH, DEM, EPA, Poison

Control, landlady, later Beaulieu, Inc, State Sales and more.

For the safety of her patients and self, Mills relocated her

practice in just three weeks. Still doing call for ten other

doctors, Mills took a subpar location and as one mother stated

when she left Mills’ practice, “* this is not up to ) our standards,

Dr Mills.” Mills spent months building a quality practice at 65

Jefferson. Only something as serious as this case could have

made her uproot an entire business, in essence start all over.

It was mere speculation that since Dr Mills and others

had no symptoms prior to the carpet installation, then it must

be something related to the installation causing the symptoms.

Mills did not bring a claim against anyone until landlady in

April 1997 sent Dr Mills a demand letter for all back rents

from time of moving out. Landlady tendered Miils the balance

of damage deposit (Mills did not agree on and never cashed),

so there was no reason for Mills to think she would be held

responsible for rent monies on a suite she was no longer

capable of using for purposes for which it was rented. Mills

had to bring a claim, KC 97-405 against landlady, but no other

defendants were named. It was not “ known” by Mills (as

lower court states), that she suffered “ injury from carpet

and/or other substances on July 18, 1996.” If Mills had

“known” she would have brought suit against the other

defendants in 1997. When Mills moved to the next office,

bringing all her belongings (exposed in newly carpeted suite),

she did not know transporting them would result in residual

vapors harming her further. Landlady told Mills, “it is not the

carpet making you sick;” States Sales testified Mills could

return to the office in 24 hours; Beaulieu wrote it was safe to

return in 24-48 hours. Physicians told Mills to just stay out of

the office for a few days. In the new office, Mills continued to

have symptoms which now changed ( severe abdominal attacks

of pain lasting hours lending one doctor to believe it was

adrenal carcinoid tumor). After hearing lectures at a D.C.

conference on residual effects of toxic vapors, Mills recopied

all patient charts (paper is porous absorbs vapors), but still her

symptoms remained. In 1998, Environmental physician told

Mills to get out of this office, leave everything behind or she

would die. Mills left, starting over again. This time her health

improved rapidly. Environmental lab testing revealed that

Mills had 50-60 times the normal levels of VOC’s in her blood

and levels of VMA in her urine 100 times normal. Levels did

re a

not clear from her blood until 2001. On or about July 19, 1999

Mills brought claim against Beaulieu, State Sales, Robert

Weisberg, IH (for RI DOH) and John Doe Cement. Even in

July 1999, Mills had no idea whatsoever that she was to suffer

a lifelong injury. Mills did not know until September 5-6, 2001

that chemicals found in Para Chem’s product MPG were those

found in her tissues. blood ‘urine; Mills did not know until 2001

that chemicals found in her blood were clearing ( rather than

from some new injury). Again, only with speculation did Mills’

then counsel bring claim against, ‘John Doe Cement’ because

carpets are usually installed with some materials. In this case

Defendants adamantly denied having used any , asking the

court to believe they installed a carpet on cement without any

materials. Subpoena for Suvann Kay,( subcontractors that

installed carpet for State Sales) was ignored. Defendants went

so far as to attempt to fool Dr Mills into believing that there

was no glue on that cement. On May 10, 2001, by Court order

of Justice Thunberg, Mills was allowed to obtain samples from

the original office. State Sales representative, Muscatelli and

counsel Reynolds pulled a piece of carpet back in the kitchen

area, telling Dr Mills to observe there- where there was only

linoleum on cement and no glue. Mills took her experts’ advice

and asked to sample from an arca one foot from the wall in the

area that had been her waiting room ( where on July 18, 1996

she had observed clean cement). Muscatelli commented, “ oh

[ guess there is glue, it must have been from when the original

carpet was installed.” This was thirty years prior. In 2001, Dr

Mills became aware that glue was on that cement floor. At all

times prior, she only speculated. August 30, 2001, State Sales

gave Mills’ then counsel a letter which read, “ ..had they used

any adhesive it would have been Magnum Plus Gold,” all the

while alleging to not have used any materials. Mills contacted

Para Chem to obtain its distributors name. In late August 2001

Mills purchased a 5 gallon drum of MPG from Carpet Products

a 9

and had it analyzed ( See Appendix). August 23, 2001 State

Sales gave Mills’ counsel MSDS (material safety data sheets)

on MPG (See Appendix). These MSDS clearly state that MPG-

is water based and contains “O" VOC’s ( volatile organic

compounds). Affirmative results were made available to lower

court justice on September 5-6, 2001, that very day Mills

received them. Justice denied Mills her constitutional right to

due process, denied her the right to have on the record any

evidence necessary to determine the facts i; that case.

Sometime after 2001 Mills began having allergic reactions to

a myriad of items as fabric softeners, room and car

deodorizers, certain perfumes, and later to certain plastic

products. Mills had never before experienced such reactions.

The lower court decision to bar Mills’ appeal in this case bases

that decision in part on, “Mills could have gotten that

information by ‘discovery’ in Mills vs Beaulieu. Justice with

abuse of discretion did not allow this. Mills could not have

known her life would be forever changed when she brought

first claim against landlady in 1997 or when bringing claim

ayainst defendants for acute injury in 1999. The law is replete

with cases regarding split causes of injury, questions as to

when statute of limitations accrue. This is the basis for

argument here, but also as lower court states, Mills vs Beaulieu

has to be reviewed along with this case to ciearly understand

the travel of this case. That review reveals the total abuse of

discretion in 1) denial of affirmative evidence, 2) a record

below totally devoid of evidence 3) failure to wam the public

consumer 4) misrepresentation, concealment, fraud in

manufacture. distribution of products to public 5) concealment

of defendants, witnesses and most significantly 6) ruling in

Mills vs Beaulicu that a SO b motion is acceptable to the RI

Supreme Court despite Justice Goldberg’s stating, “....we have

overtumed these kind of cases over and over and over again

just for this reason of a 50 b motion...”

ARGUMENT- REASONS FOR GRANTING THE APPEAL

In asbestosis cases, plaintiffs do not know whether they

will get cancer years later (mesotheliomas develop after 20

years plus). If all plaintiffs exposed were allowed to bring

claims for mere speculation that they might get cancer in future

many never so injured would be overcompensated. Yct if the

statute began to run from the time of initial exposure, many

plaintiffs would lose their right of action before they even

know they are hurt and with later developing cancers would go

uncompensated for their injuries. So the move has been to

afford plaintiffs in general, to run the statute from the time in

which they discover their injury. Date of discovery of injury in

the instant case was on or about September 5-6, 2001. There is

a three (3) year statute of limitations on toxic tort and personal

injury cases in Rhode Island. This case was timely filed in

Federal District Court of Rhode Island within the three year

statute. This court clearly has jurisdiction of this appeal in

which this plaintiff seeks to overturn the order entered by the

lower courts for the following reasons:1) Under the ususal

Discovery Rule, a plaintiff cannot bring a cause of action until

they are aware of the injury and its cause. Ayain, even

awareness of the injury alone would not suffice in the court

{instant case chronic/latent injury was not known until many

years later, the cause was known on or about September 5-6,

2001]. This case met the statute of limitations on discovery for

an injury and its causal relationship. At all times prior to

September 5-6, 2001, it would have been mere speculation and

speculation and as in Martinez-Ferrer v Richardson Merrell,

Inc 164 Cal. Rptr 591 (2™ Dist 1980) “would have been

laughed out of court.” As in Martinez, knowledge of acute

vasily identified adverse symptoms as dizziness, watery eye,

scratchy throat in 1996, and even later loss of libido could not

have put this appellant on notice that more than five ( now ten)

years later, she would be suffering a lifelong toxicant induced

lowered tolerance (TILT)as allergic respiratory. hoarseness,

skin reactions to substances never before affecting her (no

longer less traditional injury but ever so increasing in our

industrialized environmentally challenged society). Jackson vs

Johns-Manville Sales Corp 727 F.2d 506,521 (5" Cir 1984), *

plaintiff would not be barred from bringing a subsequent suit

based on claims for separate and distinct injuries following

materialization of later disease.” Even if successful in her case

against Defendants Beaulieu et al, as in Prosser & Keeton on

Law of Torts &30 @ 165 (W Keeton 5* ed 1984), “ the

majority of jurisdictions apply a traditional rule and do not

allow claims based on risk of disease in the future. "Mills could

have been compensated for acute symptoms as dizziness, even

loss of libido, lost business (having to move because of

symptoms and offensive vapors). She would not have been

compensated for injuries which did not yet exist. Laswell &

Brown 524 F.Supp 847 (W.D. Mo 1981) aff'd 683 F.2d 261 (8"

Cir 1982), cert denied, 459 U.S. 1210(1983), “ lawsuit for

personal injuries cannot be based upon possibility of some

future harm.” (See Rheingold v E.R. Squibb & Sons, Inc 1975,

Mink vs Univ of Chicago 1978, Plummer v Abbott Lab 568, F.

1983 Supp, 920 (D.R.1. Jackson vs Johns-Manville Sales Corp

1984, “... logic and justice require that presently latent injuries

must await their separate maturity as a cause of action,” Id at

520. “ To hold otherwise would result in a ‘mismatching of

entitlement, liability, compensation.” Those contracting

disease would be under-compensated, those not over-

compensated. 5" Cir stated it would not bar plaintiff from

bringing claim for a separate distinct injury, [d at 521

Restatement Second of Judgements 24-26 (1982), splitting a

cause. Citing McGovern Toxic Substance Litigation in the 4”

Cir, 16 U. Richmond L. Rev 247, 257 (1982) wherein the

court's willingness to make “Discovery rules,” is for purpose

of avoiding strict application of “exposure rules” to plaintiffs.

Wilson v Johns-Manville Sales Corp 684 F.2d 111 (D.C.Cir

1982) asbestos insulation worker so exposed in1973 suffering

“mild asbestosis” later dies of a mesothelioma. Question for

this court is, when does the statute of limitations begin to

accrue? Analysis of policies begins with, “ |) where defendants

interest in repose is viewed against other factors inclusive of

evidentiary, obtaining fair compensation when real harm,

determine which are uneconomical anticipatory lawsuits.” Id

at 120. With diagnosis of acute initial illness the injured party

may not need judicial relict. Exactly what took place in this

case; Mills did not bring suit for watery cye, scratchy throat,

dizziness or even later loss of libido/chemical induced

abdominal porphyria, when filing claim against landlady in

1997. Not until Mills was told by physicians that she would die

if removing herself from old belongings in 1998, was she able

to bring the claim against the other defendants. Court cites Para

Chem as alleging “ Plaintiff's injury occurred on July 18, 1996

and therefore this Plaintiff cannot meet the statute of

limitations.” Statute could not run from July 19 ( first day

exposed) since symptoms were only some dizziness, water eye

not yet any chronic injury. It does not follow that all with these

symptoms go on to have immune disregulation, nor is this type

of injury like a motorcycle accident leaving its victim without

a limb. The injury takes many exposures to result in immune

disregulation. With no further injury except dizziness, watery

eye, Dr Mills would have no cause to litigate. But there was

further injury which could not have been brought on mcre

speculation. On September 5-6, 2001, affirmative evidence for

this further injury was available. D.C. Circuit reversed that

district court’s dismissal of the action stating, * the action was

timely filed because the statute of limitations on that separate

and distinct disease did not begin to nin upon diagnesis vears

carlier of mild astestosis. Knowledge ii 1996 of acute adverse

reactions did not put Dr Mills on notice that in years after

2001, she’d be allergic to fabric softeners, certain plastic

products, certain perfumes, room and car deodorizers, and

other never before affecting her.

2) Reason to overturn relative to Causal Relationship

[t is patently absurd for Para Chem to allege, “ there is no

relationship between their product MPG and cither the

activities as pled by Plaintiff in her complaint or any injuries

or damages she sustained.” This is question for the jury and is

so contended by this appellant. [t is patently absurd for Para

Chem to make a blanket statement not based on any facts or

evidence whatsoever simply because no evidence was allowed.

Without any discovery allowed, in this case or in Mills vs

Beaulieu, without due process, with Justice of lower court

ignoring affirmative evidence during beginning of Daubert in

Mills vs Beaulieu, this aliegation cannot and should not stand.

Kyles v Whitley 514 U.S. 419,422 (1995), it was questionable

as to whether court of appeals evaluated excu!patory evidence

under correct constitutional standard. In defining causation all

principles of toxicology are involved. As exposure to a

substance increases so does probability of given adverse

response. Even before this, a certain dose (LD50 lethal dose)

may be fatal or fall into many categories ( Casarett & Doul’s

“Toxicology-Basic-Sciences of Poisons.” Range is super-toxic

to non-toxic. All chemicals are capable of being poisons, the

probability of assessing toxicity, route of exposure, assessing

individual and their response, the environment where exposed

and physical/chemical properties of agent all critical. All

available information must be evaluated before making blanket

allegations. Para Chem brought twelve (12) issues as reason to

bar this appeal, not one based on any facts as the record below

is so totally devoid of evidence. In Mills vs Beaulieu

defendants did an extensive search of fifty (50) years of Dr

Mills’ medical records resultant in no findings of a preexisting

‘IIness to account for her injuries. The record below is so

totally devoid of evidence that the issues need to be

reevaluated so that expert witnesses and jury can render

appropriate decisions based on facts; a case that needs to be

overturned and reason alone for being brought to this higher

court. It follows logically that if one resides in premises for

two years symptom free, renovation takes place, you and many

others begin to have symptoms ( increase when entering, abate

when leaving), each time exposed with same results, one can

arrive at a determination of probable cause. This is exactly

what took place in 1996- vapors from noxious substances in

carpet and other materials ( known as of September 5-6,

2001)caused many to have acute symptoms but this did not put

anyone on notice that a decade later they would suffer from

permanent injuries. However, the strength of association,

temporality, consistency of association and coherence with

existing information are all present. Yet Justice in lower court

in Mills v Beaulieu took cach of plaintiff's witnesses

instructing they could not testify as to having any symptoms (ie

dizziness) Justice redacted Mills’ father’s testimony by video

deposition to obscure the facts that he also had dizziness,

burning eyes so no longer able to open windows in office.

Justice allowed defendant landlady, after close of her

testimony, to return to stand stating, “my eyes did not burn.”

Mills was not allowed equal protection or due process. [a

constructive eviction jury trial did take place at which time

Justice presented, with plaintiff's full objection, jury with a

copy of Dr Mills’ temporary suspension wherein it reads,

“Dr Mills is in psychiatric care andor did not like the

diagnosis yiven.....” ] Mills was never in psychiatric care and

saw a medical board “pre-approved” psychiatrist arranged by

agreement between Bruce McIntyre legal counsel for the board

and John Harwood, Esq then Dr Mills’ counsel and Speaker of

the House, State of Rhode Island. Jerome Royott, M.D. of

Massachusetts and Raymond Pomm of PRN (Fla) both found

Dr Mills competent to practice medicine and to have no

psychiatric illness whatsoever. In toxic tort cases defendants

often attempt to prove the plaintiff has some mental illness. Dr

Mills was not allowed to present her evaluations or expert

witnesscs that had examined her. Justice only allowed a

fabricated slanderous statement on her temporary suspension

notice be given to jury. Outcome of that case against landlady

is obvious after they were allowed to read such statements. “In

cases involving the area of tension between the First and

Fourteenth Amendments on the one hand and state defamation

law on the other, we have frequently had occasion to review

‘the evidence in the ***® record to determine whether it could

constitutionally support a judgment’ for the plaintiff,” also

citing Napue v Illinois 360 U.S. 264, 271-72 (1959) “... falsity

of testimony used to convict.” Fiske v Kansas 274 U.S. 380,

385-86 (1927) “...where a conclusion of law as to Federal right

and finding of fact are so intermingled as to make it necessary

to....analyze facts....(See Appendix MPG results) The

exceptions to Fiske allowed for this Court to make independent

examination of facts (intermingled with law) to decide whether

individual is deprived of Constitutional rights. Dr Mills

immediately consulted with physicians but none were able to

inform her that she was in any danger by staying in the office

or by finding a new site and bringing the belongings with her-

not until late 1998. Defendants allegation that there is no

causal relationship is without basis. Pereira vs Dow Chemical

Co., “ it is not the plaintiff's duty to identify which of the

vapors caused or contributed to the chronic renal failure but

rather, it is the duty of the defendant ....to prove the contrary.’

They have not done that. Dr Mills has been able to prove which

vapors caused the acute and which the chronic latent injuries

and was able to do this on September 5-6, 2001 :critical

information necessary to determine the facts on the record and

would have abrogated the need for a model -all the experts

were allowed to go on due to judicial abuse of discretion.

Wells vs Ortho Pharmaceutical Corp, 738 F.2d 741 (11% Cir.

1986) noted Ferebee vs Chevron Chemical Co., 736 F.2d, ™...if

the fact-finder here is convinced that plaintiffs have proven to

a reasonable degree of medical certainty...legal standard....it

does not matter in terms of deciding the case that the medical .

community might require more research and evidence before

conclusively resolving the questions.” DES became a matter of

law as precedent to adenocarcinomas. Id at 745 (“ expert's

opinion need not be generally accepted in the scientific

community before it can be sufficiently reliable and probative

to support a jury finding.”) As in Wells, | gnoring science meant

rejection of valid evidence, court in Ferebee failed to address

scientific merit of plaintiff's evidence. Instant case, September

5-6, 2001 evidence is crucial and must be addressed in interest

of public. Federal Rule of Evidence 401 in part states, “

evidence is relevant if it has any tendency to make the

existence of a fact at issue more Or less probable than it would

be without the evidence.” Styrene was found (VMA) in

plaintiff's body, styrene in MPG, and styrene in glue obtained

from office in 2001 yet State of RI (Robert Weisberg) reported

no styrene was found that could harm Mills when they allege

to have tested carpet and air quality (never alleging to have

tested glue/adhesive). (See Appendix) It will require of the

courts, a consistency of decisions based on evaluation of the

validity of the expert witness reasoning, processing data-

resulting in inferences oF conclusions to prevent injustices as

this plaintiff endures. The injustice is a court relying on the

unfounded personal opinions of the defendants and their

counsel ( without expert testimony). Many cases as F crebee vs

Chevron show that, ~ 4 cause-uffect relationship aced not be

clearly established...as long as the basic methodology

employed to reach such a conclusion is sound such as the use

of tissue samples, standard tests, products law does not

preclude recovery until a ‘statistically significant’ number of

people have been injured or until science has had the time and

resources to complete sophisticated laboratory studies of the

chemical....to recover is not scientific certainty but legal

sufficiency....” Dr Mills had tissue samples, standard tests

results which were with abuse of discretion ignored/ wanton

disregard.(See Appendix)

Rule 703 Federal Rules of Evidence - it is not just in the

complaint but for expert(s) chosen by plaintiff, they need “ not

disclose the underlying facts or data until a cross examination

unless required to do so by the court.” In this case, Dr Mills

motioned the court to place on the record and reveal to the

court her test results, the results of products analysis- it was

not allowed with wanton disregard or excusable neglect. It

would have revealed more than a 51% probability, in fact a

100% affirmation that toxins in defendants’ product were the

same as adversely affected Dr Mills. Blood, urine, fat testing

completely correlate with the results of MPG analysis ( product

manufactured by Para Chem). [In Mills vs Beaulieu, plaintiff's

experts were forced to use a model which had been used in

state and federal courts throughout the U.S. and by which Dr

Kenneth Reed, IH had successfully brought claims against

carpet manufacturers, forced by abuse of discretion of Justice

who was given Data Chem results that would have obviated the

need for using a model. The model had been peer reviewed and

was awaiting publication but Justice threw out his testimony.

Justice further, labeled Joseph Regna, M.D. (Graduate of BU

Medical School and Johns Hopkins graduate in Toxicology as

well as President, at that time, of New England Society of

Toxicologists) as “ learning impaired.” Justice set aside two

weeks for the trial yet had her next jurors filing into the

courtroom before Dr Regna even completed his testimony

about one substance, not allowing the presentation of any

epidemiologic or animal studies, or any evidence. A Daubert

Hearing lasted little more than one day in a toxic tort case. W

Prosser supra note 334 s 41, at 242, “....where causal

connections have been abandoned as requirement, the

judgments were based upon “ (c)ircumstantial evidence, expert

testimony, or common knowledge...from which the causal

sequence ( could) be inferred.” Boldt v Jostens, Inc, plaintiff

claimed her injuries were from exposure to vapors from her

place of work-from heated glues which later caused her to

contract a condition known as Goodpasture’s Syndrome

wherein the body’s own immune system goes awry and attacks

the lungs and kidneys. Expert in that case, testified the

etiology/cause of Goodpasture’s is unknown, “ can probably be

many different things and different for different people.” He

also testified that “ the glue fumes had a great deal to do with

her illness, and certainly caused aggravation.” The Supreme

Court of Minnesota found that this testimony was sufficient to

award this plaintiff because, “ the truth of the opinion need not

be capable of demonstration.” The Montana Supreme Court

took a liberal path to proof of causation in Conway v Blackfeet

Indian Developers, Inc where after a backhoe injury, multiple

sclerosis symptoms very quickly arose. Medical experts agreed

there is no known cause for MS. Supreme Court ruled, “ those

who investigate the cause of MS and what causes it to become

symptomatic are at the frontier of medical science; until they

have explored further no one will have affirmative

evidence...this leaves plaintiff in the seemingly impossible

position of being required to prove proximate causation where

there is not direct medical evidence on this point.” The ruling

was based on indirect evidence that was the coincidental

development of a disease immediately after a trauma. In Koller

v Richardson-Merrell, Inc, court did not deny the evidence of

a plaintiff where a child’s birth defects were claimed to be

from the mother’s ingestion of Bendictin. Plaintiff was unable

to prove the mechanism by which this occurred nor were they

able to prove it was not from some other cause. The court in its

decision effectively did not want to deprive all plaintiff from

reaching a jury because a product was not an“ accepted cause”

of the injury. Dr Mills’ experts were just beginning to present

epidemiologic data and studies ( data which reveals disease in

exposed populations versus in unexposed ones). Going back to

the case law now known in asbestosis cases, the link between -

asbestosis and mesothelioma was not established until 1970's.

Epidemiologic studies rather than methodology established

causation, conclusions which allowed courts to accept

causation as a near matter of law. The inferences are often so

strong as to abrogate the need for reasoning and methodology.

See Betrand vs Johns-Manville Sales Corp 529 F. Supp

539,544 (D. Minn 1982), McEven vs Ortho Pharmaceutical

Corp where plaintiff claimed blindness was due to birth control

pills, Oregon Supreme Court upheld jury’s decision which

showed influence of causation “ more probably correct than

incorrect.” Inferences come from animal studies, quality of

epidemiologic studies, dose-response relationships. The

inaccessibility of evidence often allows for shift of burden

from plaintiffs to defendants. 1982 Amb Found Research J.

487, 496-503, “....plaintitfs should be required to produce

evidence sufficient to establish that the substance at issue

‘more likely than not’ caused the injury or disease in question.”

In this case, evidence was made inaccessible by abuse of

judicial discretion; precluded from doing so by lower justice.

In most toxic tort cases the evidence either never existed or no

longer existed due to time lapses and therefore there is no shift

of burden to defendants because the issue of superior access is

moot (lost of nonexistent evidence). [n this case and Mills vs

Beaulieu both sides had full access to the evidence so the shift

should be to defendants to prove otherwise or question for jury

to decide. All of the following issues of “ more likely than not

tests, probability, are questions for jury. Parker v Employers

\iutual Liability Ins Co., plaintiff alleged his cancer was work

related, court rules, ~ a possible cause becomes ‘probable’

- when in the absence of other reasonable causal explanations it

becomes more likely than not that the injury was a result of its

action.” This * more than likely not test, “ would have required

evidence from September 5-6, 2001 where economic interests

would have been most suited if not for judicial abuse of

_ discretion. Issues in the instant case would have been resolved

allowing for judicial economy. Increasing claims regarding

latent injuries by toxins concerns the way they work on the

body. It is critical to meet the evidentiary standard. This did not

happen in Mills vs Beaulieu, State Sales, Robert Weisberg nor

in Mills vs Nahabedian (later combined by the courts then

separated out again). A jury was never presented with any of

the evidence (not recognized agent as styrene, not identifiable

group of symptoms of many, not chronic signs of

immune/anatomic alterations (just a slanderous statement by

someone at RI Medical Board).Question to jury, ‘is there a

relationship between the “disease” (alteration) and the toxic

substance. Epidemiologist then use statistics, animal data

determine consequential effects on exposed/unexposed but in

end must make an “inference” concerning the information as

to whether or not the toxin was “ more likely than not” the

cause of the disease (altcration).Relationship between

disease, toxic substance lies with epidemiology as DES and

clear cell adenocarcinoma which is with almost certainty

established epidemiologically. Rule 703 allows an expert to

base his opinion upon hearsay as epidemiologic studies if

experts in the field reasonably also rely on them. Kchm vs

Proctor & Gamble, court allowed these studies under public

records exception to hearsay rule and experts in field also

relied on studies of same kind. Id at 902 Justice Jenkins in

Allen v United States, “ there appears to be no question

‘whether or not ionizing radiation causes cancer and

leukemia.” There is no question VOC’s are carcinogenic, some

cause leukemia. This is the threshold question. Summers v

Tice, a shift of burden of proof to defendants took place and

plaintiff recovered. Basko v Sterling Drug Co., relying on

Section 432(2) of Second Restatement of Torts reads in part “

the inference may rationally be drawn that defendant’s conduct

was a substantial factor contributing to plaintiff's

injury...unless the facts are proven otherwise by sufficient

evidence, the inference provides a rational basis for imposing

liability...” Mills vs Para Chem Mills v Beaulieu ct al totally

devoid of evidence McCann, et al (1987) scientifically

established organic compounds as those found in analysis

results of September 5-6, 2001 of MPG are carcinogenic (See

Appendix) Dr Mills can demonstrate that agent(s) were a

sufficient cause of the relevant chronic injuries being able to

do so only as of September 5-6, 2001, her blood, urine, fat

measuring these chemicals and their breakdown products in

numbers significantly higher than would be from chance or as

in Allen v United States, from “ background doses.” It is

biologically known VOC’s produce alterations in immune

function/are carcinogenic. Burden of proof must shift to

defendant because 1) it is more likely than not, the probability

is greater than 50% that MPG caused Dr Mills’ chronic injuries

2) biologically known VOC’s alter immunity 3) Dr Mills

denied analysis results‘any epidemiologic and animal data (

stipulated she would have the lunch hour only to obtain

discovery and only this would reach jury-no evidentiary

hearing took place. The case may be brought again if no due

process and equal protection. Yet here, there is a different

product, different c ‘endant, different injury- one that is

latent/chronic that couid not have been known in 1996. This is

question of res judicata and collateral estoppel.

3) Res Judicata and Collateral Estoppel apply states

Para Chem, because they claim the case was already heard, that

it was the “same set of events.” Then all plaintiffs exposed to

asbestos should not be allowed to bring claims for their

mesothelioma, years later, because the chronic and acute

injuries were resultant from the “same set of events.” Even if

one takes the defense position that prior case followed all

evidentiary rules, allowed for complete due process; this case

does not involve issues of res judicata because it is about |) a

different product, 2) different defendant and does not include

defendants in Mills vs Beaulieu 3) is a different toxic substance

with different chemical composition, 4) different chronic/latent

injuries and 5) results from analysis of MPG “ discovery” on or

about September 5-6, 2001. Prior to this date noone could

determine if there was a causal connection (MPG could have

been analyzed as having “0" VOC’s). It is not as defendant

states, a case brought just because identity of the party was

made known. It is the “identity” of the composition of MPG

that obligates Dr Mills bringing this claim not just for her own

injuries but for the potential injury MPG could cause any

public consumer ( due in most part to its fraudulent

labeling). There is no safeguard where attorneys and judges do

not know about scientific principles as residual vapors ( justice

in Mills v Beaulieu, “ they are not like spores that you can

see”- it does not require that you see or smell something to

make it harmful, example carbon monoxide-odorless and

colorless). Defense counsel mocked animal studies of hexane

exposure, studies cannot be done on humans because of

societal prohibitions against testing humans to the scope and

extent of animal testing for chemical exposure; also due to its

lethal toxicity. Animal test data is the principal source of

information regarding dose response and minimum safe levels

for exposure. Defense counsel stated hexane leaves the body

after twenty four hours when all VOC’s absorb into fat/blood

and take years to clear, often never completely. Defense had no

‘expert available to support such patently absurd testimony.

Rule 702 allows expert testimony to be admissible if it assists

trier of fact in understanding evidence to determine facts in

issue. Courts should err on side of proffered evidence not

denying all evidence as in Dr Mills’ cases. In Re Japanese

Electronic Products Antitrust Litigation 723 F.2d 238 3” Cir

1983, “ It was legal error for trial- court to substitute its

judgment or reliability for that of experts in the field.” In

determining what facts or data an expert reasonably relies upon

the proper inquiry is not what the court deems reliable but what

actual experts deem reliable. Rule 704 allows an expert to give -

an opinion or inference on issue decided by jury or trier of

fact. Webb vs Fuller Brush Co 1967, physician was not allowed

to testify because it was already shown that cream was

dangerous so jury did not need expert guidance. With 100%

affirmative evidence , MPG containing VOC’s in the quantities

found would afford any jury the obvious conclusion as to the

dangers of such a product. A tral court’s decision to admit or

not, expert testimony, may only be disturbed on appeal if

erroneous abuse of discretion stood ( Salem vs US Lines Co

370 US 31 (1962))-exactly what took place in Dr Mills’ cases.

Rule 104(a), 703 and 403 analysis of admissibility- no

independent scrutiny and evaluation of factual bases of expert

testimony took place. Frye v United States 293 F. 1013 (D.C.

Cir 1923), “ while courts will go a long way in admitting

expert testimony deduced from well-recognized scientific

principle or discovery, the thing from which the deduction is

made must be sufficiently established to have gained a general

acceptance in the particular field in which it belongs.” The

methodology ( model) proposed by Dr Kenneth Reed was used

in federal/state courts, favoring plaintiffs (Anello, Mass), even

without affirmative evidence. This case has affirmative

evidence so a model using speculative numbers would not be

necessary to calculate exposure levels in the office and later.

The model was peer reviewed, ready for general acceptance,

and was based upon objective and reproducible data. Sterling

v Velsicol Chemical Corp there was a lack of clinical tests for

diagnosis but in this case were available September 5-6, 2001,

are reproducible, objective, and have scientific consensus

necessary to establish a field of expertise. The chemical found

in MPG are known carcinogens and have known effects on the

human immune system. An objective procedure must be

allowed where qualified persons can either duplicate the results

or draw their own conclusions from fact. The courts must

inquire but not infringe upon the fact-finder’s role in assessing

the weight of expert testimony 104(a) 1244-1245. Rule 703,

Judge Weinstein noted, “ there is an independent duty to

evaluate the reliability of evidence offered,”- not done with

evidence of September 5-6, 2001. There is a built-in bias in this

data collection because defendants adamantly refused

independent testing leaving no bases whatsoever to deny

plaintiff her due process in Mills vs Beaulieu, leaving Dr Mills

no alternative upon discovery September 5-6, 2001 but to bring

this claim. Any reasonable expert toxicologist could use the

affirmative DATA CHEM results on MPG as condition of

admissibility, Fed R. Evidence 104 (a). In allowance of Dr

Mills’ due process, it is question for jury to evaluate this

evidence and testimony submitted by experts for Mills and

Para Chem (along with their inferences and statistics).

Opposing experts could reach opposite conclusions from the

same data or even agree, but it is for the jury, not the defense

counsel and justice to decide upon. Jenkins v United States 307

F.2d 637, 646 (D.C. Cir 1962) where experts used the same

methodology but differed “solely on the conclusions they drew

from the test results and other information.” Court decided,

“« ...was thus a classic battle of the experts, a battle in which the

jury must decide the victor.” Thus a cause effect relationship

need not be clearly established by animal or epidemiologic

studies before doctor can testify that in his opinion, such a

relationship exists.” Evidence is usually lost or never existed

in toxic tort cases. In this case affirmative cvidence still

remains and needs to be independently tested by Para Chem. It

is highly unusual for Defendants in a toxic tort case to not only

not independently test but to adamantly refuse to do so when

Mills was given court order to sample. Court No 3 US ex rel.

DiGiacomo v Franzen 1982, “...if witness were restric.ed to

testify only the hairs were similar, state would be deprived of

the full probative value of otherwise available evidence.”

Denial of fundamental fairness with no independent analysis or

any evidence took place here. Glue/carpet are preserved.

Experts can determine quantities present in 1996 based on

chemical and its properties to outgas. In Sentilles vs

InterCaribbean the mere probability by witnesses was

sufficient to submit issue to jury. It only remains for

“reasonable jurors” to determine if “legal sufficiency” based

on expert testimony shows MPG, “ more likely than not caused

plaintiff's injury.” Cramer v Morrison 1979, “..seldom is it

possible to exclude all possible chance for error...but there is

no requirement in our law that admissibility of scientific test

evidence must be predicated on 100% degree of accuracy.”Id

at 884. More probability of causal connection than exclusion

(Appendix Data Chem/AccuChem) Mills saw bare cement on

July 18, 1996, May 10, 2001 it was covered with straw colored

“Paste.” Barring by res judicata would so prejudice Mills

further giving authority to those concealing information which

may further injure public. Did defendants in Mills v Beaulieu

conceal P Chem’s identity or did P Chem conspire to conceal

identity as it did that of MPG’s composition? That is what this

case is about, not about learning identity of defendant. Unlike

DES manufacturers whose products are so similar that the

identity need not be known to bring claim, there cannot be

comparison of DES case law to that of glues. P Chem admits

some are water based safer, reasonable alternatives available.

Ginsberg & Weiss Common Law Liability for Toxic Torts-one

cannot claim “ concert of action theory, “ here because identity

was admitted by defendant, * if we used any it would be MPG,

and it is nontoxic.“( Appendix) This is question for jury based

on evidence. Concert of action theory as DES would “render

virtually any manufacturer liable for defective products of an

entire industry even if could be demonstrated the product

Causing injury was not made by defendant.” Sindeil vs Abbott

Labs ( Bichler vs Eli Lilly ruling no identity of defendant).

Here the jury just need determine MPG is not water based, was

misrepresented. In subsequent actions (only if a “full and fair”

opportunity to litigate an issue in prior action- not allowed in

Mills vs Beaulieu) trial courts have discretion to apply

collateral estoppel. Parklane Hoisery vs Shore. Plaintiff had

available new evidence, as did Mills in September 2001. Issues

in estoppel 1) extent of litigation- Daubert with no

epidemiologic, animal data, or any evidence ( no due process)

2) foreseeable of future litigation- not know of permanent

injury when case brought 3) negligence, strict liability,

conspiracy issues not litigated 4) did manufacturer P Chem

know or reasonably should have known of danger associated

with MPG- not litigated in prior case 5) instant case about

different substance, composition, defendant, different injuries.

Burden is upon each actor to prove he has not caused harm-

unable to do so in prior case where defendant “got away with

it.” Mills has three years from date of discovery to notify

defendant of toxic tort/personal injury in RI. Mills waited in

part to determine if the chronic injury would abate. To date

TILT (toxicant induced lowered tolerance) allergic reactions

immune alteration has not. (Of interest is P Chem requesting

extension to December 2004 to answer claim yet allege Mills

notified them “too late.” This claim could not be enjoined with

1999 filing for following reasons: 1) Justice denied Mills right

to due process not allowing evidence making prior record

totally devoid of evidence 2) prior defendants concealed both

identity and composition of MPG- did Para Chem know of

prior Case is question for jury: a ) denied what they claim they

would have used as glue, b) denied that any glue was used at

all c) ignored subpoena of subcontractors installing carpet-

Suvann Kay; 3) MPG known not to be water based September

2001. Ayer v JaneC Stormont Hospital, Defendant sought by

interrogatories identity of experts but plaintiff refused and

district court held plaintiff in contempt for refusal to supply

information. Justice here did not hold defendants in contempt

for refusal to answer subpoena or identifying (now known

adhesive company). 4) Statutory Standard of Care-Defendants

did conceal identity of Para Chem until 2001, but Para Chem

by concealing composition of MPG violated Federal

Substances Labeling Act committing fraud. This deprived Dr

Mills her right to full health by distributing a product without

warning, with misrepresentation also known as statutory

standard of negligence wherein inferences of negligence per se

arise from the federal statute labeling act; or there is

conclusive evidence of Para Chem’s breach of duty of care.

This case is about Para Chem’s violation of this standard of

care. Under Strict Liability Restatement of Torts 402A plaintiff

must prove a product is defective by reason of being

unreasonably dangerous after manufacture and distribution by

defendant. The “defect” can include manufacture, design, or

failure to warn. Barker vs Lull Engineering Co (1978) 20 C.3d

413, 143 Cal Rptr. 225, California Supreme Court case,

plaintiff could recover when product ‘failed to perform as

safely as an ordinary consumer would expect when used in a

reasonably foreseeable manner. Where benefits of design do not

outweigh risks of danger inherent in design.” Proving VOC's

in MPG was proximate cause, burden shifts to P-Chem to show

benefits outweigh risks.” Obien vs Muskin Corp No.A-45-95

( 1982), lav’ goes even further “ even if a product performs safe

as ordinary consumer would expect, a defect in product can

still be shown if an alternative was possible; or product “too

dangerous.” P Chem could have used water based (MSDS on

MPG-0 VOC’s) Public is led to believe MPG is safe-is it defect

or intentional violation is question for jury | )failure to warn 2)

manufacture defect and 3) desizn defect.P Chem markets MPG

as indoor/outdoor ( Gordon v P Chem 1985 explodes near

heater)it was reasonably foresevable that MPG would be used

in carpet installing. TSCA (Toxic Substance Control Act),

RCRA (Resource Conservation and Recovery Act) identify

hazardous substances citing private individuals right to seck

relief under common law. Common law theory encompasses

nuisance-substance offensive to senses, injurious to health,

obstruction to free use of property. MPG caused substantial

interference with peaceful enjoyment 4 Restatement of Torts

(@ 224: complaints of offensive smells and physical discomfort

(acute), prolonged exposure to residual vapors (chronic) show

proximate cause and distinct injuries.(belongings

preserved still vapors outgas) Feldman vs Lederle ( A-70 July

30, 1984) “ when strict liability defect consists of improper

design or warning, reasonableness of defendant’s conduct is a

factor in determining liability. "With knowledge of defect strict

liability analysis equates to negligence on reasonableness of

defendant’s conduct. Strict liability, common law: product

MPG did not perform properly, was defective when left

defendant's control being replete with VOC’s (alleged none),

injuring Dr Mills by defect. Beshada vManville, asbestos case

where without benefit of any factual record, defendants were

barred from proving they could not have known their products

would place plaintiff at risk. They were absolutely liable.

DECISION BELOW CONFLICTS

WITH THIS COURT’S PRECEDENTS

Court cannot state Mills “knew” was “aware” of injury

that had not yet occurred ( doctors had not yet told her of,

defendants told her did not cxist Mills only speculated carpet

(other materials if existed) caused her acute/chronic and

distinct injuries. Footnote -@ xiv, “...observed clear cement

foundation...” Not until May 10, 2001 did Mills “know”

become “aware” that a “yellow glue like substance” covered

that cement. At all times prior it was “ mere speculation”

having seen one drop of “yellow.. substance on a door. At pg

iv, “Neither test (air or carpet) revealed presence of toxic

substances..” Glue was not even tested by State. Unlike in

Amold, it is not Mills’ view that “..action does not accrue until

investigation is complete.” It is, action accrues when injury and

its cause become known. An altered immune response, lifelong

intolerance to substances could not have been known when

Mills had dizziness July 19, 1996. Court @ xiv Amold,”..such

factual investigation is subject of discovery process.”( not

afforded Mills Quoting from Court’s own argument, Wilkinson

and Lee, “...person should have reasonable opportunity to

become cognizant of an injury and its cause before statute of

limitations begins to run.” Renaud as well does not apply here.

“ In order to toll the running ..would have to be a

showing..attempted by fraud or misrepresentation to conceal

the existence of cause of action against it.” Mills wrote,

“Defendants in that case denied her right to any information

regarding MPG,” “ There was a “failure to warn” not only by

this Defendant but, by “all” defendants in... Beaulieu...” Court

is inaccurate, “ Plaintiff has made no allegation that Para Chem

concealed its identity from her.” Discovery rule should be

applicable. In Renaud, plaintiff inhaled fumes from one time

spill, here Mills unknowinyly suffered ongoing injury for years

(separate/distinct injuries).Hart v Mazur 1995 “if under any

theory allegations are sufficient to state cause of

action........, motion to dismiss must be denied.”

CONCLUSION

Appellant has been denied due process, denied “full

and fair” evidentiary review of her cases per Constitutional

Amendment XIV. Statute of three years from date of discovery

of injury ( chronic) and its cause was met (from September 5-6,

2001). The outcome is of public concern with impact on a

society with ever increasing environmental injuries. MPG is

potentially harmful to all being marketed falsely as safe. To

describe Mills as making “bold assertions and unsupported

conclusions,” evidence shows otherwise. Yet P Chem claims

Mills knew of her injury July 19, 1996. It cannot be had both

ways. Mills v Nahabedian 1997, Mills had no knowledge she

was to suffer chemical induced abdominal porphyria and lost

libido; Mills v Beaulieu, she had no knowledge she would

suffer TILT ( lowered tolerance lifelong), just as in this claim

she has no knowledge if she will contract cancer later on from

the present injuries. Eagle and Picher Industries v Cox

re:physical injury requirement, “..judicial system cannot handle

mere speculation or fear of exposure ..plaintiffs must be later

able to sue.” P Chem made bold assertions, unsupported claims

doing no independent testing, committed fraud. Brafford v

Susquehanna, “..both parties should be given full opportunity

to develop a complete factual record on issue.” It was not done.

Adams v Johns-Manville, “a requisite clement of causation is

lacking until injury actually materialized.” Acute symptoms

would not put one on notice that decades later there would be

distinct chronic injury. In a logical orderly approach in two

steps |) evaluate medical reports 2) evaluate MPG results-both

not done. Res Judicata/Collateral Estoppel: ask three questions

1) is there a burden to litigants in previous case- no, they are

not defendants in this case 2) is judicial economy benefitted-

if not for abuse of discretion in prior case this claim would not

be brought 3) does case affect minimizing of inconsistent

decision-MPG not litigated in prior case so is not relevant to

MIPG. The court cannot have it both ways-on one hand not

allowing MPG’s composition into evidence, on the other hand

stating the claim against Para Chem has already been litigated.

Dr Mills does have the constitutional nght to have the previous

case reheard because there was no “full and fair evidentiary

hearing,” but this case is only about MPG- a different product

and composition, different defendant, different chronic injury.

Wherefore, in interest of this Appellant as well as for public

concer this appeal should be granted. H W Perry Jr, “Deciding

to Decide 1991, “importance ultimately objective. importance

of case itself..its impact on society” is judged. Our society

demands fair review of environmental issues.

Respectfully submitted by

Petitioner prose :

Geraldine Mills, M.D.

191 Squantum Drive

Warwick, Rhode [sland 02888

401-463-8433

APPENDIX A

UNITED STATES COURT OF APPEALS

For the First Circuit

No. 05-1842

GERALDINE MILLS, M.D.

Plaintiff, Appellant

PARA-CHEM, dba PARA-CHEM SOUTHERN, INC..

Defendant, Appellee

Before

Lynch, Lipez and Howard

Circuit Judges

JUDGMENT

Entered: Apmil 7, 2006

We have carefully reviewed the record in this case,

including briefs of the parties. Essentially for the reasons given

by the magistrate judge in his report and recommendation

dated April 11, 2005, we affirm the dismissal of plaintitf’s

claims as time barred.

Affirmed.

By the Court:

Richard Cushing Donovan, Clerk.

By: 's; Margaret Carter

Chief Deputy Clerk

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

GERALDINE MILLS, M_D.,

Plaintitf,

v. C.A.No. 04-3938

PARA-CHEM db/a

PARA-CHEM SOUTHERN, INC,

PARA-CHEM STANDARD DIVISION

and PARA-CHEM, Aias, a

foreign corporation.

Defendants.

ORDER

The Report and Recommendation cf United States

Magistrate Judge David L. Martin filed on April 11, 2005, in

the above captioned matter is accepted pursuant to Title 28

United States Code 636 (b) (1). Defendant’s- Motion to

Dismiss is GRANTED because the Complaint is time-barred.

By Order,

iS/

Deputy Clerk

Enier:

‘si William Smith

Jnited States District Judge

Date: 3/2,05

APPENDIX 8B

PAGE 10

DATA CHEM

Laboratories SAMPLE ANALYSIS DATA SHEET

A Sorenson Company

Date Printed.....05-Sep-0! DCL Sample Name 01114196

Client Name...Geraldine Mills DCL Report Group 01 1-2045-01

Analytical Results

Analyte Date Result

Analyzed

Pentane, 2 methyl! (6.28) 05-Sep-01 38

Pentane 3 methyl (6.59) 05-Sep-01 65

(Results in ng/sample)

DATA CHEM

Laboratories

A Sorenson Company

Date Printed...05-Sep-O1 Client Sample Name Mayojar

Client Name....Geraldine Mills DCL ....011462

DCL Report Group 01 1-2101-01

Analytical Results

Analyte Date Analyzed MDL _ Result

2-Butanone 05-Sep-01 10:36 140

4-methyl-2-pentanone 98

Toluene 81

Ethy lbenzene ' 150

m,p-Xylene 35

o-Xylene 68

Stvrene 480

Rhode Island Hospital

Patient Mills, Geraldine MR =(0000)006440069

DOB 07:04:52

Ordering M.D. Hanna, George M.D.

Physician: Hanna, George M.D. Admitted 08/ 16,06

Location: POBL Discharge: 08/16/96

Department of Pathology

593 Eddy Street

Providence, Rhode Island 02903

Telephone 401-444-6107

CHEMISTR Y-ROUTINE

Endocrine-Metabolic

Procedures: VMA

Units: UG/MGC

08/16/96 1640 146

Date of Report 08/21/06 Time 2134

Hanna, George M.D.

185 A High Service Ave

North Providence

RI 029045114

ACCU-CHEM A Division of

Laboratories E.H.S. Inc.

990 Bowser

Suite 800

Richardson TX 75081

972-234-5412

1-800-451-0116

LABORATORY

REPORT

Patient Name Referring Physician

Miifs, Geraldine Dr N. Thomas LaCava

Sample Identification

806C25352

Date Collected Date Received Date Analyzed

4,8/98 4/9/98 4; 13,98

PANEL 8 Aliphatic Volatile Solvents Type of

Specimen

Blood

Compound Results Accu-Chem Detection limit

NG/ML (PPB) NG/ML (PPB)

2-methylpentane 8.9 1.0 1.0

3-methylpentane 14.2 4.5 1.0

N-Hexane 5.3 2.0 1.0

Date Received Date Analyzed

20 Apr 1999 22 Apr 1999

Compound Results Accu-Chem Detection Limit

2-methylpentane >50 1.0 “he

3-methylpentane >50 4.5 1.0

N-hexane 29.9 2.0 1.0

Date Received Date Analyzed

23-May 2001 12-Jun-2001

2-methylpentane «0.5 1.0

3-methylpentane 0.5 $5

n-hexane “0.5 2.0

* the above is from authentic documents reproducible from

labs in which testing was done and placed in this appendix to

show that these toxins take years to metabolize and clear from~

the human body

In June 2001 Dr Mills was aware of an injury and no longer

had to merely speculate; these toxins increase in the blood as

they are removed from fat ( being lipophilic) prior to clearing

from the body. On September 5-6, 2001 Dr Mills knew the

most likely cause of her injury ( at no time prior could she have

known). Sample mayojar was taken from MPG 5 galion drum

WOHL Wisconsin Occupational

Health Laboratory

Wisconsin State Laboratory of Hygeine

September 3, 1996

Robert Weisberg

_ ENV Monitoring

102 Slater Ave

Providence, RI 02906-5624

PROJ MILLS OFFICE

The results for the samples received by the lab on

08/16/96 are as follows:

_ Lab# Field# Analyte

593551 TUBE Styrene, phenylcyclohexene

593552 BLANK Styrene, pheny Icy clohexene

593553 BULK CARPET Styrene,phenylcyclohexene

593554 BULK TILE Styrene. phenylcyclohexene

Comments -: Phenylcyclohexene (4-) was too small to be

confirmed.

If you have any questions about these results please call the lab

at 800 446 0403

s/ Steve Strebel, Organic Supervisor

‘s/ Tim Eckert

* the results are not added, Robert Weisberg IH stated “no

styrene was found” but comments do not state that. This is

added to appendix only to show that NO GLUE was tested by

representative sent by RI DOH (Department of Health).

MATERIAL SAFETY DATA SHEET

Page |

PARA-CHEM PO BOX 127 Simpsonville SC 29681

24 hour emergency telephone 864-967-769 1

SECTION | PRODUCT IDENTIFICATION

Chemical Name MAGNUM PLUS GOLD —4099

Chemical Family WATER BASED ADHESIVE

SECTION 3 HAZARDOUS IDENTIFICATION

CARCINOGENICITY ; THIS PRODUCT CONTAINS NO

INGREDIENT LISTED AS A CARCINOGEN BY IARC, NTP

OR OSHA.

*Carpet Products

One Wholesale Way

?0 Box 8559

Cranston RI 02920

* this notation was on MSDS given to Dr Mills by State Sales,

Inc on August 23, 2001.

Page 2

SECTION 9 PHYSICAL AND CHEMICAL PROPERTIES

APPEARANCE AND ODCR.: light straw colored paste.

Grams Volatile Organic Compounds, Liter of Coating: 0 (Based

on no solvent)

Grams Volatile Organic Compounds’ Liter of Material: 0(Based

on no solvent)

SECTION 11 TOXICOLOGICAL INFORMATION

This product has been tested for toxicity (acute inhalation,

acute dermal skin irritation, oral) and has been found to be

non-toxic as defined by The Federal Hazardous Substance Act,

16 CFR 1500.3.

* Carpet Products

One Wholesale Way

PO Box 8559

Cranston RI 02920

PARA-CHEM REPORTS ON MSDS; MPG contains no

ingredients listed as carcinogens.

Concentrations of Some Organic Compounds in the Indoor

Air of Homes as adapted from McCann, ct al (1987)

Chemical Concentration

CARCINOGENS

Formaldehyde

Benzene

Styrene

Other compounds

Toluene

Xylene

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

GERALDINE MILLS, M_D..

Plaintitf

v. CA 04-3938

PARA-CHEM db/a

PARA-CHEM SOUTHERN, INC

PARA-CHEM STANDARD DIVISION

and PARA-CHEM, alias

a foreign corporation,

: Defendants

REPORT AND RECOMMENDATION

David L. Martin United States Magistrate Judge

Before the court is Defendant’s Motion to Dismiss

Plaintiff's Complaint ( Motion to Dismiss or ‘Motion”)

Dismissal is sought by Para-Chem, d/b/a/Para-Chem Southern

Inc Para-Chem Standard Division and Para-Chem

(“Defendants” or “Para-Chem”) pursuant to Fed. R. Civ. P. 12

(b) (6) because the Complaint is both time-barred and

precluded by the doctrine of res judicata. Plaintiff, Geraldine

Mills, M.D. (“Plaintiff” or “ Dr Mills”) has filed an objection

to the Motion to Dismiss. This matter has been referred to me

for preliminary review, findinys, and recommended disposition

pursuant to 28 U.S.C. 636 (b) (1) (B) and D.R.I. Local R. 32

(a). A hearing yeas conducted on March 23, 2995. For the

reasons stated herein, | recommend that the Motion to Dismiss

be vranted

Facts and Travel

10a

Plaintiff is a pediatrician whose office was located at

65 Jefferson Boulevard in Warwick, Rhode Island. In March

1996 a leak from an upstairs office damaged the carpet in

Plaintiff's office. The landlady had the carpet in Plaintiffs

office replaced on or about July 18, 1996 with a carpet

manufactured by Beaulicu of America, Inc (“Beaulieu”) and

installed by State Sales, Inc (“State Sales”). Thereafter, the rug

and/or cement cmitted strong, noxious vapors to such a degree

that Plaintiff her family, her employees and her patients

complained of a variety of symptoms including burning eves,

scratchy throats, dizziness, nausea, headaches, vertigo and

pressure in the ears. Plaintiff complained to the landlady,

Beaulieu, State Sales, the Rhode Island Department of

Environmental Management and the Rhode island Department

of Health. The Department of Health subsequently sent Robert

Weisberg to conduct air quality testing of Plaintiff's vacant

office. He also removed a section of the carpet for further

testing. Neither test revealed the presence of toxic substances

or fumes. In early to mid-August of 1996 Plaintiff vacated

office taking her belongings including medical records,

patient’s charts, books, furniture, and curtains, with her.

However, as Plaintiff subsequently learned, the belongings she

removed from her office may have been contaminated and the

same noxious vapors continued to cause adverse effects to

Plaintifi as well as to her family, employees and patients in her

new location. In July of 1999 Plaintiff sued Beaulieu, State

Sales her landlady, Robert Weisberg and John Doe Cement Co.

Alias in the RI Superior Court. The hearing justice conducted

a pretrial hearing pursuant to Daubert v Merrell Dow Pharm

Inc 509 US 579, 113 S Ct. 2786, 125 L.Ed 2d 469 (1993) after

the defendants challenged the validity and relevance of the

proposed trial testimony of Plaintiff's experts. The hearing

justice concluded that the cxpert’s opinions could not

withstand scrutiny under Daubert and refused to all them to

I3a

material clement necessary to sustain recovery under some

actionable legal theory.” Dartmouth Review, 889 F.2d at 16

(quoting Gooley v Mobil Oil Corp 651 F.2d 513 515 1“ Cir

1988.)In general when dealing with a motion to dismiss under

Fed R. Civ P. 12 (b\6) consideration of documents not

attached to the complaint or expressly incorporated therein

requires conversion of the motion to one for summary

judgment pursuant to Fed R. Civ P.56 See Watersoj v Page 987

F.2d 1 3 (1* Cir 1993) “ However, courts have made narrow

exceptions for parties for official public records; for documents

sufficiently referred to in the complaint.” Id

Discussion

Defendants argue that Plaintiff’ s complaint is barred by

the statute of limitations see Defendant’s memorandum of Law

in Support of Their Motion to Dismiss (“ Defendants’ Mem’’)

at 1,5 and by the doctrine of res judicata see id at 1-2 8-10.

Because the court concludes that Plaintiff's complaint is time

barred the court need not address Defendant’s res judicata

argument. Rhode Island General Laws 9-1-14 provides in

relevant part that : Actions for injuries to the person shall be

commenced and sued within three (3) years next after the cause

of action shall accrue and not after. RI Gen Laws 9-1-14 (1997

Reenactment) Section 9-1-14 (b) “ governs all tort suits to

recover damages for personal injuries, regardless of the

particular legal theory on which relief is sought.” Arnold v R.J.

Reynolds Tobacco Co 956Supp 110 113 (D.R.L 1997) (citing

Pirri v Toledo Scale Corp 619 A.2d 419 430-31 (R.I 1993)

(holding that personal injury claim based on product liability

negligence, implied warranty and failure to warn was governed

by 9-1-14 see also Renaud v Sigma Aldrich Corp 662A.2d 711

714 (R.L. 1995) (holding in product liability action that the

“three vear limitation period set forth in 9-1-14 for

commencing actions for * injuries to the person’ is the

applicable statute of limitations”) (citing Pirm).According to

Para Chem “Plaintiff filed her Complaint with the United

Ita

States District Court for the District of Rhdoe Island on

September 7, 2004 PlaintiffPalleged injury occurred on or

about July 18, 1996. Thus the Plaintiff did not file the present

claim until well over cight (8) years after the cause of action

accrued, which is over five (5) years after the statute of

limitations had run.” Defendant’s Mem at 5. Plaintiff counters

that the “cause of action accrued from the time of discovery

that Para-Chem was responsible for the injuries and

interference with normal course of business.” Plaintiff's Mem

of Law in Support of Objection to Defendant’s Motion to

Dismiss (“Plaintiff's Mem”) at 1. Thus the issue before the

court is when Plaintiff's cause of action accrued. See Armold

956 F Supp at 113 (“ The dispute in this case centers on when

the cause of action accrued, and whether defendants concealed

the existence of the cause of action so as to toll the running of

the limitations period.”) Generally a cause of action for

personal injury accrues and the statute of limitations begins to

run at the time of injury. See Amold 956 F. Supp at 113 Martin

v Howard 784 A. 2d 291 299 (RI 2001) Renaud 662 A.2d at

714.However, in certain narrowly circumscribed factual

situations, [the Rhode Island Supreme Court] has held that a

Statute of limitations will not begin to run until an injury or

some wrongful conduct should have, in the exercise of

reasonable diligence been discovered.”Renaud 662 A.2d at

714-15 see also Arnold 956 F. Supp at 113 (“{T] he Rhode

island Supreme Court has recognized that for some factual

settings, the operation of a ‘discovery rule’ serves to set this

accrual date at some time beyond the actual date of

injury.” Martin 784 A.2d at 299 (* [Ijn some narrowly

circumscribed situations however, when the fact of the injury

is unknown to the plaintiff when it occurs, the applicable

statute of limitations will be tolled and will not begin to run

until in the exercise of reasonable diligence the plaintiff should

have discovered theinjury or some injury-causing wrongtul

conduct.” ) ( internal quotations marks and citation

omitted). The Rhode Island Supreme Court has limited the use

of this discovey rule to cases involving medical malpractice see

Wilkinson v Harrington 243 A.2d 745 747-48 753 (RI 1968)

claims relating to improvements to real estate, see Lee v Morin

469 A.2d 358 359-60 (RI 1983) , and actions concerning drug

product liability see Anthony v Abbott Labs 490 A.2d 43 4448

(RI 1985).Plaintiff argues that the discovery rule is applicable

in the instant matter. See Plaintiff's Mem at 10, see also Id at

8 (“ Not until September 6, 2001, did the plaintiff become

aware (discovery) that the product Magnum Plus Gold was the

major source of styrene...”) Complaint 15 (“On or about

September 6, 2001 Plaintiff became fully aware that the carpet

was just one factor in her personal injury, the other being the

adhesive known as Magnum Plus Gold-4099.”) Plaintiff

acknowledges that she “brought a claim against Beaulieu, State

Sales Robert Weisberg and Industrial Hygienist sent the Rhode

{sland Department of Health, and John Doe Cement Co alias

[i]n 1999 within the required statute of limitations. Complaint

6. Plaintitf described the John Doe Carpet Cement company as

“ the unknown manufacturer of the cement used to install

carpet in Plaintiff's offices.” Appendix to Defendant’s Motion

to Dismiss ( complaint filed in Civil Action No KC 99-542)

“Defendant’s App”). At 4 She argues that the failure to name

Para-Chem in the previous action was due to the fact that the

defendants there not only failed to inform Plaintiff who John

Doe defendant was, but also denied that any cement was used

in the installation of the carpet on July 18, 1996. See

Complaint at 8-10; Plaintiff's Mem at 2, 5, 6, 9, 12. According

to Plaintiff the defendants in the previous litigation * with

wanton disregard purposefully and negligently withheld had

concealed this information from the Plaintiff from July 19,

1999 when Plaintiff filed that action to on or about August 30,

2001 when defendant State Sales Inc handed Plaintitf

iaformation citing Para-Chem as the [d]etcndant ramed in

1999 as John Doe Cement.” Plaintiff's Mem at 2. On or about

16a

August 30, 2001 during a deposition in the pnor litigation

counsel for State Sales gave Plaintitf information identifying

the product Magnum Plus Gold -4099 as the adhesive which

State Sales would have provided to the installer, although State

Sales continued to deny that any adhesive was used in the

installation of the carpet in Plaintiffs office. See Complaint at

11 Plaintiff's Mem at 2. Thereafter Plaintiff purchased a five

gallon drum of Magnum Plus Gold-4099 and sent it for testing.

See Complaint at 12 Plaintiff's Mem at 2. Plaintiff states that

she received the results, which confirmed the presence of

certain chemicals known as volatile organic compounds

(VOC’s) on or about September 6, 2001 See Complaint at 13,

15, Plaintiff's Mem at 2. Thus in Plaintiff's view the instant

Complaint is not time-barred under RI Gen Laws 9-1-14 (b) “

because it does meet the three year statute being filed on or

about September 6, 2004, three years to date of receipt of Data

Chem results on the composition of the product Magnum Plus

Gold.” Plaintiff's Mem at 2 The court rejects Plaintiff's

argument for the following reasons. As an initial matter, the

court notes that the RI Supreme Court has declined to exten the

discovery rule to product liability actions other than those

involving drug product liability. See Renaud 662 A.2d at 716

see also Amold 956 F. Supp at 114 noting that “[iJn its most

recent discussion of Anthony the RI Supreme Court left no

doubt that the rule announced therein applies solely to drug

product liability cases, and not to product liability or personal

injury cases generally”) citing Renaud. Although Plaintiff

argues that “[a{s to the RI Supreme Court extending the

discovery rule to only including ‘certain types of property

damage and drug product liability,” and to ‘certain narrowly

defined factual situations,’ admittedly the RI Supreme Courts

have never addressed the issue of carpet and glue toxicity as it

pertains to the situation at hand.” Plaintiff's Mem at 12 and

that ~ only extending the rules to cover those of drug product

liability underscores the very need of change needed in the RI

17a

State Court Judicial System.” id., the fact remains that the RI

Supreme Court has declined Plaintiff's invitation to extend the

discovery rule to product liability and personal injury cases in

general see Arnold 956 F. Supp at 114. Moreover, the

“discovery rule concerns the discovery that one has suffered an

injury not the discovery of the identity of the party allegedly.

responsible for causing the injury.” Renaud 662 A.2d at 715

see also id. (“ Anthony does not stand for the proposition that

the statute of limitations is tolled until a plaintiff should have

discovered the identity of the drug manufacturer.”:) The court

agrees with Para-Chem statement that, “by the Plaintiff's own

admission she knew of the alleged injury and the basis of the

alleged cause of action in the summer of 1996.” Defendant’s

Mem at 2. In the Superior Court complaint filed in 1999

Plaintitf alleged that “ John Doe Cement is the unknown

manufacturer of the cement used to install the carpet in

Plaintiff's office Defendant’s App at 4 “[o]n or about July 18,

1996, [d]efendants jointly and severally replaced carpet in

Plaintiff's offices located at 65 Jefferson Boulevard Warwick

RI “id. At 7 “[t}]hereafter the rug and/or cement emitted strong

noxious fumes to such a degree that Plaintiffs patients and

Plaintiff herself complained of burning eyes,scratchy throats

and dizziness after just a few minutes in the premises,” id at 8.

Plaintiff complained to both the landlord and to the

(djefendants stating that the rug and/or cement was defective

in that it caused her, her employees and patients to become il]

due to the fumes, id at 9; “[d]efendants failed and refused to do

anything about the defective rug and/or cement,” id at 10; * [o]

n or about August 9, 1996 the noxious fumes were such that

Plaintiff could no longer carry on her trade and profession in

that premises,” id at 11, and “Plaintiff vacated the premises

and lost business due to having to vacate the premises.” id at

i2 She further alleged that the defendants jointly severally

manufactured,sold, and installed the carpet and or cement in

her offices that they had a duty to do so ina workmanlike

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manner and that they were negligent in failing to do so. See id

at 14-16 Plaintiff stated that [t]hrough the negligent and or

improper application or use of the materials to install the rug

the [d]efendants jointly and severally have chemically

assaulted the Plaintitf, id at 19 and that as a result, * Plaintiff

sustained physical injury pain and suffering and sustained a

loss of business income and earning capaacity and expense for —

medical treatment. Id at 17 In the complaint filed in this court,

Plaintiff includes the same or similar allegations regarding the

installation of the carpet in her office on July 18, 1996 see

Complaint at 3 the resulting “strong noxious vapors, id at 4

which the rug and/or cement emitted, see id and which caused

Plaintiff and others to suffer “ myriads of symptoms.” id her

complaints to her landiady State Sales Beaulieu the RI

Department of Health that * the rug and/or cement was

defective in that it caused her her employees and patients to

become adversely affected by the vapors, id at 5 and her

relocation to different premises on August 15, 1996 with all of

her belongings and loss of business which resulted therefrom

see id at 7. Plaintiff notes that she brought a claim against

various defendants, including John Doe Cement Co alia

Complaint at 6 in 1999 “ within the required statute of

limitations id., and that those “claims were brought for these

parties jointly and severally failed and refused to do anything

about the defective rug and or cement, id. Additionally, she

notes that the 2001 test results on the Magnum Plus Gold-4099

were consistent with previous test results on a “ yellow

mustard appearing substance found on the bottom of the carpet

and carpet pad...” Id. 12 see also Plaintiff's mem at 2 stating

that results of the testing of Magnum Plus Gold “clearly

matched those of samples taken from the site of the carpet

installation from August 15, 1996 and from May 10, 2001. The

results also matched the chemicals determined to be the cause

vf acute and chronic personal injury to the Plainulf as

determined in 196 and alter May 2001.7 Itts abundantly clear

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to the court that not only was Plaintiff aware of her injury in

July and August 1996 but she was also aware thai tiie cement

may have played a role in that injury. As Senior Judge Ronald

R Legueux stated in Arnold In general once a plaintiff is aware

that he or she has been injured by a product that plaintiff has

enough information to commence a products liability action

based on that injury. For the action to accrue a plaintiff does

not need to be aware of all the facts supporting the claims,such

as whether a particular component was defective or whether

and how the design was flawed such factual investigation is the

subject of the discovery process. Plaintiff's view which is

essentially that a cause of action does not accrue until the

investigation is complete would render the statute of

limitations meaningless and ineffective.” Amold, 956 F. Supp

at 117 see also Martin 784 A.2d at 300 rejecting plaintiff's

argument that she did not appreciate the full nature and extent

of her injuries at the time she first knew she had suffered harm;

Renaud 662 A.2d at 716 (“ In the case at bar, plaintiff was

aware that she was injured within hours of her exposure to the

acetic acid fumes. She experienced symptoms that caused her

to seek emergency medical treatment on the very afternoon of

her exposure to those fumes. Unlike Wilkinsons and Lee where

the plaintiffs even if they had used reasonable diligence could

not have discovered that they had suffered an injury untilafter

the applicable statutes of limitation had expired, in the instant

case plaintiff knew that she was injured almost simultaneously

with the event precipitating the injury.). Anthony 490 A.2d at

45 (“The reasoning behind Wilkinson and Lee is that a person

should have reasonable opportunity to become cognizant of an

injury and it cause before the statute of limitations begins to

run.”Finally the RI Supreme Court in Renaud rejected an

argument very similar to that of Plaintiff here -that the

defendants in KC 99-542 “ concealed the information

necessary to fully and properly litigate the previous action, “

Plaintiff's Mem at 6 namely the plaintiff was injured as a result

20a

of inhaling fumes from acetic acid that had spilled at her place

of employment, Landmark Medical Center. See Renaud 662

A.2d at 713. She sued Sigma Aldrich Corporation (“ Sigma

Aldrich”) alleging that Sigma-Aldrich had manufactured and

supplied the container holding the acetic acid involved in the

incident. See id. Approximately four and a half years after the

spill, documents were obtained pursuant to a subpoena which

indicated that the supplier was Fisher Scientific Co. (“Fisher”)

not Sigma Aldrich. See Renaud 662 A.2d at 713 The Plaintiff

moved to amend her complaint to add Fisher which motion -

was granted. See id. Fisher thereafter field a motion to dismiss

pursuant to Fed R. Civ P 12 (b)(6) claiming that the three year

statute of limitations against it had expired prior to its being

added as a defendant. See id The motion was denied and Fisher

appealed. See id. The Renaud court stated that: The plaintiff

asserts that she exercised reasonable diligence in her efforts to

identify the party that manufactured and supplied the container

holding the acetic acid to Landmark. She alleges however, that

her efforts to identify the manufacturer/supplier were frustrated

by inter alia Landmark employees who told her that the

manufacture of the container was Sigma Chemical; employees

of Landmark’s purchasing department that told her that

invoices for the acetic acid were unavailable; and Landmark’s

workers’ compensation insurance carrier who sent a

subrogation notice to Sigma Chemical.Alihough certain of

these contentions were disputed by the Sigma defendants,

plaintiff nevertheless claims that she reasonably and

detrimentally relied on information obtained from her

employer, who misled her into believing Sigma Chemical to be

the proper defendant. The plaintiff further suggests that

Landmark employees and the two Sigma defendants may have

even intentionally concealed the identity of the supplier of the

container. Even if we accept each of plaintiff's allegations as

true, they provide no basis for tolling the statute of limitations

on a cause of action against Fisher. In order to toll the running

2la

of the statute of limitations with respect to Fisher, there would

have to be a showing that Fisher, the part asserting the statute

of limitations defense attempted by fraud or misrepresentation

to conceal the existence o fth cause of action. The plaintiff

does not allege that Fisher in any way attempted to conceal the

existence of the cause of action against it. Her claims of

concealment are directed at only Landmark and possibly th two

Sigma defendants Consequently plaintiff’;s allegations even if

accepted as true cannot serve to toll the statute of limitations

on a cause of action against Fisher. Renaud 662 A.2d at 714 (

internal citations and footnote omitted) The same is true in the

instant matter. Plaintiff has made no allegations that Para-

Chem concealed its identity from her. Accordingly, the court

rejects Plaintiff's contention that because the actions of the

defendants in KC99-542 precluded her from naming Para-

Chem previously the statute of limitations as it pertains to

Para-Chem should run from September 6, 2001. Statutes of

limitation promoted certainty and finality and avoid stale

claims,,,Roe v Gelineau 794 A.2d 476 485 R.I. 2002; see also

Martin 784 A.2d at 299 noting that theory behind statute of

limitations is that “even if one has a just claim it is unjust not

to put the adversary on notice to defend within the period of

limitation and that the nght to be free of stale claims in time

comes to prevail over the right to prosecute them.” Based on

the foregoing the court concludes that the discovery rule is

inapplicable in these circumstances and that Plaintiff's cause

of action against Para-Chem is barred by the three year statute

of limitations.

Conclusion

For the reasons stated above, I recommend that the

Motion to Dismiss be granted because the Complaint is time

barred. Any objections to this Report and Recommendation

must be specific and must be filed with the Clerk of Courts

within ten days of its receipt. See Fed R Civ P. 72(b); D.R.L.

Local R 32 Failure to file specific objections in a timely

22a

manner constitutes waiver of the right to review by the district

court and of the right to appeal the district court’s decision. See

United States v Valencia-Copete 792 F.2d 4,6 (1* Cir 1986)

Park Motor Mart Inc v Ford Motor Co 616 F.2d 603 605 (1*

Cir 1980).

/s/ David L. Martin

United States Magistrate Judge

April 11, 2005

23a

APPENDIX D

August 19, 2002

Geraldine Mills, M.D.

191 Squantum Drive

Warwick, RI 02888

Dear Dr Mills:

I would like to thank you for you (r) timely

participation in the confidential evaluation with Richard Seely,

M.D. in February of 2002 of this year. As you are aware, Dr

Seely found no psychopathology which would require further

participation with the Physician Recovery Network. I have

reviewed the material and concur with his assessment.

However, if we can be of further assistance with this or any

other matter, please feel free to contact my staff at (800)888-

8776.

Again, thank you for your cooperation.

Sincerely,

/s/ Raymond M. Pomm, M.D.

Medical Director

Consultant-Department of Health

Department of Business & Professional Regulation

RMP: dac

June 27, 2002

John B. Harwood, Esq

McKinnon & Harwood

1168 Newport Avenue

Pawtucket, RI 02861

RE: Geraldine Mills, M.D. (DOB 7/4/52)

24a

Dear Mr Harwood:

At her request, I interviewed Geraldine Mills, M.D. at

my office on June 25, 2002 for the purpose of evaluating her

psychiatrically, including a complete mental status

examination, for the purpose of determining whether or not she

was fit to practice medicine from the point of view of her

mental health.

My credentials are as follows: I am a psychiatrist,

certified in Psychiatry by the American Board of Psychiatry

and Neurology, a Fellow of the American Psychiatric

Association, and a former Councilor and Past President of the

Massachusetts Psychiatric Society. lam a Representative of the

Massachusetts Psychiatric Society in the Assembly of the

American Psychiatric Association. | am also a psychoanalyst

and member of the Boston Psychoanalytic Society and the

American Psychoanalytic Association, and I am a forensic

psychiatrist and member of the American Academy of

Psychiatry and Law. I was Associate Clinical Professor of

Psychiatry at Tufts Medical School from 1976 to 1986 and

Lecturer on Psychiatry at Harvard Medical School from 1986

to 1994 and from 2001 to the present. I was Chief of Inpatient

and Day Hospital Psychiatry at the Faulkner Hospital in Boston

from 1975 to 1994, where I continue on the staff. I was for four

years Senior Psychiatrist at the Massachusetts Correctional

Institution at Norfolk, have been a consultant to the

Massachusetts Governor's Board of Pardons and

Commutations, to the Parole Board and to the Probate Court of

Plymouth County, Massachusetts as well as to the LEAA in

Washington, D.C. I have served as an expert witness in most

areas of forensic psychiatry both civil and criminal. [ am a

founding partner of the Las and Psychiatry Resource Center —

P.C. of Boston. I am now in full-time private practice of

psychiatry, psychoanalysis and forensic psychiatry.

25a

Dr Mills a native of Rhode Island, graduated from

college at the University of Rhode Island. She completed two

years of a PhD program in pathology at Case Western Reserve

University and then earned a medical degree at Ross University

in the Caribbean. Her internship and residencies were at

several U.S. hospitals. Her first professional employment was

at St Joseph’s Hospital where she worked from 1989 to 1993.

In 1992 she was embroiled in a dispute with her supervisor

over the number of continuous hours she was required to work.

As a result. According to her, the supervisor call the Rhode

Island Hospital and denigrated her, so that she was persona non

grata at that hospital. She was called psychotic and/or paranoid,

despite the fact that she had no psychiatric history and was

never so diagnosed by a psychiatrist, or even by a psychologist.

DR Mills’s license to practice medicine was formally taken

away in Rhode Island in July 1901 (2001) after having been

told to stop practicing medicine in 1999. In her long struggle

to recover her license. She has been evaluated by four

psychiatrist at the request of lawyers or of the Board of

Registration in Medicine.All four found her fit to practice

medicine, none found her psychotic. One diagnosed her as

having an Obsessive-Compulsive Disorder (OCD) apparently

without any clinical evidence. She was also given an MMPI

psychological exam, which, while noting that she had tried to

make herself look good in taking the exam-not surprising under

the circumstances-also found no evidence of psychosis,

paranoia, or OCD, nor did it identify any personality problems

of consequence. It did find that her interpersonal relations were

good. On mental status exam, she showed no evidence of any

psychological or emotional abnormality, no thought disorder,

no abnormality of speech or mood. On formal testing, there

was no abnormality of any intellectual function. She was

oriented to person place time and situation. Her immediate

recall short-term and medium term memory were entirely

normal. Her fund of knowledge ability to compare and conirast

26a

concentrate calculate and think absolutely were entirely normal

and consonant with her level of education. Her social judgment

was also normal. | find no psychiatric reason whatsoever that

would interfere with the capacity and ability of Geraldine

Mills, M.D. to practice medicine including her specialty of

pediatrics.

Sincerely,

/s/ Jerome Rogoff, M.D.

STATE OF RHODE ISLAND

KENT, SC

GERALDINE MILLS, M.D.

STATE SALES, INC d/b/a KC99-542

ANSWER OF DEFENDANT STATE SALES, INC d/b/a

STATE RUG AND STATE RUG CLEANING

onal 8. Defendant, State Sales, Inc denies that it had anything

to do with manufacturing of carpet and/or cement, and

ADMITS THAT A PORTION OF THE CARPETING WAS

INSTALLED BY IT. ( caps added for emphasis by appellant)

STATE SALES, INC d/b/a

STATE RUG and STATE RUG CLEANING

By its attorney,

/s/ Stephen c. Mackie Esq /1202

Mackie & Reilly

681 Smith Street

Providence RI 02908

401-521-4100

401-274-5433 (fax)

CERTIFICATION

27a

I certify that a copy of the within Answer was mailed to

Geraldine Mills, M.D., Pro Se 191 Squantum Drive Warwick,

R.I. 02888 on the 1* day of October 1999.

/s/ Theresa Micale(sp?)

State of Rhode Island

Kent, SC

Geraldine Mills, M.D.

vs CA NO 97-405

Gloria Nahabedian

Geraldine Mills M.D.

vs CA NO 99-542

State Sales, Inc et al

Defendant State Sales, Inc’s Answers to Plaintiff's

Interrogatonies

eee ew eeeeee

Interrogatory No 26 Please state in reference to the substance

used in the installation of this carpet what the MSDS sheets

were in regard to the composition of the substance, how long

it takes to dry, how it is put down, where it is mixed, if so done

in what formulation it is mixed, what if any other substances or

materials, were used in installation and from whom purchased.

ANSWER: None used.

STATE SALES, INC

By /s/ Charles Muscatelli

Charles Muscatelli, Project Manager

Subscribed and sworn before me this 13" day of April 2001

Notary Public /s/ Catherine Snyde

My Commission Expires October 28, 2001

28a

Geraldine Mills, M.D.

Vs CANO °7-405

Glona Nahabedian

jai Interrogatory No 3 Please state as to whether you have any

knowledge of how the carpet was installed on or about July 17-

18, 1996, and if you have such knowledge please indicate

whether you witnesses any padding, tack strip or glues or

adhesives or cements employed.

ANSWER: Yes, I was present in the plaintiff's rented suite

both days. As I recall, there was a pad used, and tack strips. I

did not observe any glue or adhesives being used.

Gloria Nahabedian

Defendant by her attorney,

/s/John W. Kershaw

August 30, 2001

Via Facsimile 9410)322-1700

Judith I Scott, Esq

Scott& scott P.C.

45 Cove Road

Westerly, R.I. 028910

RE: Mills v State Sales, Inc et al

Our File No 600-5 10P

Dear Ms Scott

At your request I am writing to clarify a question you

had regarding my providing you with a copy of the MSDS

sheet concerning water base adhesive. It is still the position of

my client that no adhesive was used in this installation. Any

adhesive on the floor in the office space in question would be

from the prior rug that was in fact glued installation. The

MSDS sheet for the water base adhesive represents the glue

that would have been used had the installation in question been

giued. This is the adhesive that State Sales would have

29a

provided to the installer. | provided the MSDS sheet to show

that even if adhesive was used, it was a non-toxic adhesive. Dr

Reed agreed to this in his deposition based on the absence of

any CAS number. He also agreed that many water base

adhesives are non-toxic.

I hope this clarifies the question you had. If I can be of any

further assistance, let me know.

/s/ Paul Reynolds

Kent Sc Superior Court

Geraldine Mills, M.D.

Vv CA NO K97-405 _

Gloria Nahabedian

Geraldine Mills

v CANO K99-542

State Sales, Inc et al

MEMORANDUM IN SUPPORT OF OBJECTION TO

DEFENDANTS’ MOTION TO EXCLUDE EXPERTS

Kenneth Reed, PhD: Dr Reed did not have the advantage of

having the chemical breakdown of the carpet available for his

deposition ( added for emphasis by appellant- nor the glue

composition) Dr Reed has developed a model based on EPA

testing and an accepted mathematical formula developed by Dr

Karl Weil relative to evaporation in order to provide a means

for determining the probable exposure to environmental gases

in cases such as the instant matter in which valid testing was

not performed at the time of insult. Dr Reeds model has been

submitted for publication where it will be sudject to critique

and peer review. However, although the journal treatise

describing the model and method currently is awaiting

publication, the underlying foundational formulae and methods

30a

have been subjected to publication and peer review. Dr Reed

has been “ qualified” in prior Daubert and Daubert syle

hearings in other cases. .........

Cases 1) Farrell et al v. connetti Trailer Sales, Inc et al 727

A.2d 183 (RI 1999) In deciding to allow Plaintiffs to introduce

evidence of repairs where a motor home was not available for

inspection, the Farrell court cited, with approval, Sampson v

Marshall Brass Co 661 a2d 971 (RI 1995) “The court

concluded that ‘in the absence of a record exploring the

reasons for the inability of the plaintiffs in this case to produce

the missing [product], we are of the opinion that rule 37(b)(2)

does not permit such drastic consequences as dismissal with

prejudice.’) both Farrell and Sampson are products liability

cases in which the defective product could not be supplies as

in the instant case. 2) Tancrelle v Friendly Ice Cream

Corporation 756 A.2d 744 RI 2000 In discussing the spoilation

of evidence instruction the Tancrelle court stated that “ This

court has held that although a showing of bade(bad) faith may

strengthen the inference of spoilation such a showing is not

essential citing Farrell ( supra with approval.).....

Conclusion: For all the above, Plaintiff prays this Honorable

Court permit her expert to testify and provide the jury with the

opportunity to assess the available evidence in this very

unusual case of first impression.

Respectfully submitted, Plaintiff

iy attorneys, /s/ Judith I Scott # 4590

YEAR

2001

2000

1999

1998

1997

3la

KENNETH P. REED Ph.D., C.I.H.

LEGAL ASSISTANCE PROVIDED

PLAINTIFF OUTCOMES

FIRM ATTORNEY ACTION OUTCOME

Glenn Goodman Attorney

Anello and Uhiman vs Shaw Settled

Personal injury,chemicals from carpeting

R Hymel Attorney

Schxenayder vs American Freightways Settled

Personal injury chemical spill

D Schmitt Attorney

Shah vs Allstate Insurance et al Settled

property damages

S Franzen attorney

Horn Estate vs Highlands Nursing Home Trial

Jury awarded $700,000.00

wrongful death

J Carter attorney

McGrath vs Church of God et al Settled

Carpet installation injury

R Lovesky attorney

Editha Benton vs Bausch and Lomb

personal injury work Settled

JB Meade attorney

McCarty vs Tuflex

personal injury carpet Settled

S Eaton attorney

McAllester vs Mohawk Carpeting Settled

personal injury work

J Speer attorney

Cauberreaux vs DuPont

awarded $ 4,200,000.00 Trial

personal injury carpet

settled 1995 case of personal injury carpet Shutt vs JPS et al

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.