Petition for Writ of Certiorari — Smith v. Brookshire Brothers, Inc.

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Supreme Court, U.«

1) FILED

No. 0 6-1 09 JUL 2° 2006

OFFICE OF THE CLERK _

In The

Supreme Court of the Gnited States

WESLEY SMITH,

Petitioner,

BROOKSHIRE BROTHERS, INC.,

Respondent.

On Petition For Writ Of Certiorari

To The Court Of Appeals Of Texas,

First Judicial District

PETITION FOR WRIT OF CERTIORARI

ALICE OLIVER-PARROTT

Counsel of Record for Petitioner

MARIA TERESA ARGUINDEGUI

Attorney for Petitioner

SHARI GOLDSBERRY _

Of Counsel

BURROW & PARROTT, L.L.P.

1301 McKinney Street

Suite 3500

Houston, Texas 77010-3092

(713) 222-6333

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Question One

Does the court of appeals’ holding that Material Safety

Data Sheets (MSDS) are not scientifically reliable conflict

with federal statutes requiring such reliability and man-

dating reliance by certain designated persons?

Question Two

Does the court of appeals’ conclusion that federally

mandated MSDS and warning labels are not scientifically

reliable evidence of causation undermine the use of MSDS

by emergency responders and others who are required by

law to rely on their scientific reliability and subject those

persons to potential third-party liability?

Question Three

Does the court of appeals’ conclusion that federally

mandated MSDS are not scientifically reliable evidence of

causation violate public policy?

PARTIES

Petitioner is Wesley Smith, Individually.

Respondent is Brookshire Brothers, Incorporated.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..........ccccccccosssocsssovcesevorsceee i

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OPINIONS AND ORDERS BELOW....................:cccccces

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FEDERAL STATUTES AND REGULATIONS

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STATEMENT OF THE CASE.............ccccsesssssssesssssseseeees 3

REASONS FOR GRANTING THE WRIT.................... 4

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APPENDIX A

Court of Appeals Decision .............0..cccescccserssccscovseosessocosers Al

APPENDIX B

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APPENDIX C

Texas Supreme Court Decision denying petition for

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APPENDIX D

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APPENDIX E

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APPENDIX F

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APPENDIX G |

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TABLE OF AUTHORITIES

Page

CASES

Brookshire Brothers, Inc. v. Smith, 176 S.W.3d 30

(Tex. App. — Houston [1st] 2004)... ee ceeees 2,4

Curtis v. M&S Petroleum, 174 F.3d 661 (5th Cir.

BE bsnl stosisaksstibs iaiesendtee dadsiedssccance cndicletadamcaiiee eda s eae 7

McCullock v. H.B. Fuller Co., 61 F.3d 1038 (2nd Cir.

IE sis cinssiphivn icy Aiki dasncovonsbaial te toenaieisependniieaname cat. 7

Moore v. Ashland, 151 F.3d 269 (5th Cir. 1998).................. 8

Westberry v. Gislared Gummi AB., 178 F.3d 257

Ce Ri cictterdiciduciccccdnnindedivenciiveracuasacmscmeeauns: 7

FEDERAL STATUTES AND REGULATIONS

Eres cic itaddcacdrcdennciiencinhds oe Ecuiniaioende 2

eas De OE OB vise resvcroveccdesscitsesiicvintvtseesseniantonenien 2

SOC Fe. SIG SIO OE GE, osc Sis thecsitcresicieiaiinre 2, 5, 7, 8,9

OTHER MATERIALS

AMERICAN MEDICAL ASSOCIATION, GUIDES

TO THE EVALUATION OF PERMANENT IM-

PAIRMENT (Lina Cocchiarella, MS, MSC &

Gunnar B.J. Andersson, MD, PhD eds., 5th ed.)

| RGSRRESRU Mp A eastetpaie etapa aay OAR e Sytchiay poly ete wy LEBEN tS g

ENVIRONMENTAL AND OCCUPATIONAL MEDI-

CINE (William N. Rom, M.D., M.P.H. ed., 2nd

CF CID thesitencsncrerticiasiscupissennlenctesntassbomipainciviaeandenes 9

OCCUPATIONAL MEDICINE (Carl Zenz, M.D.,

Sc.D., Q. Bruce Dickerson, M.D., M.P.H., Edward

P. Harvarth, Jr, M.D., M.PH. eds., 3rd ed.)

COI ricci ncenshosadiaondide tabi 9

TABLE OF AUTHORITIES — Continued

Page

OCCUPATIONAL AND ENVIRONMENTAL RES-

PIRATORY DISEASE (Phillip Harber, M.D.,

M.P.H., Marc B. Schenker, M.D., M.P.H., John R.

IE Rs ccktunncetts ceveeecivesokcactuiaebaituiadadevinidelaceks 10

HAZARDOUS MATERIALS TOXICOLOGY, CLINI-

CAL PRINCIPLES OF ENVIRONMENTAL

HEALTH (John B. Sullivan, Jr., M.D., Gary R.

Kriewer, M.D., MP3.) (1903).......cccccovscecovescesceseossssrooses 10

PETI) »°1 FOR WRIT OF CERTIORARI

This is a chemical-exposure case. Wesley Smith filed

this personal-injury lawsuit against his employer, Brook-

shire Brothers, Incorporated to recover damages for

injuries he undisputedly sustained while on the job. While

employed at Brookshire, Smith, a sixteen-year old boy at

the time, was exposed to a combination of several known

toxic chemicals at the direction of his immediate supervi-

sor. The supervisor forced Smith to continue working

without the benefit of protective equipment and con-

sciously disregarded Smith’s request for protective equip-

ment. As a result of Brookshire’s conduct, Smith suffered

permanent respiratory injury. After a four-day trial, the

jury returned a verdict in favor of Smith, concluding

Brookshire’s “negligence” and/or “failure to provide Smith

a reasonably safe work place ... proximately caused” his

injuries. The jury also found clear and convincing evidence

that the harm to Smith resulted from malice. Ultimately,

the trial court entered a final judgment that awarded

$46,000 in compensatory damages, $200,000 in punitive

damages, $27,165.90 in prejudgment interest, and post-

judgment interest on all damages at ten percent (10%) per

annum until paid. Brookshire Brothers appealed the

decision. The court of appeals rendered a take-nothing

verdict because it ruled the evidence relied upon by

Smith’s expert witness, the federally mandated Material

Safety Data Sheets for the specific products involved, were

not scientifically reliable.

OPINIONS AND ORDERS BELOW

The Texas Supreme Court denied discretionary review

in this case (App. C, infra) and its order is unpublished.

The opinion of the Court of Appeals for the First Judicial

District (App. A) is reported at 176 S.W.3d 30. The Judg-

ment of the 411th Judicial District Court, Trinity County,

Texas is unpublished (App. B, infra).

JURISDICTION

The Texas Supreme Court denied discretionary review

in this case. The Judgment of the Court of Appeals for the

First Judicial District in Houston, Texas is that of the

highest court possessing and exercising jurisdiction. (App.

A, infra). This Court’s jurisdiction rests on 28 U.S.C.

§1257(a).

FEDERAL STATUTES AND

REGULATIONS INVOLVED

The relevant provisions of the United States Code and

Code of Federal Regulations are set forth below:

The Occupational Safety and Health Act of 1970

(OSHA), 84 Stat. 1590, 29 U.S.C. §651 et seq. (1982 ed.),

authorizes the Department of Labor (DOL) to set health

and safety standards for workplaces.

The Department of Labor promulgated a hazard

communication standard requiring that the best, peer-

reviewed scientific literature from the Material Data

Safety Sheets. 29 C.F.R. §1910.1200 et seq. (1989).

STATEMENT OF THE CASE

The court of appeals’ decision about the scientific

reliability of federally mandated Material Safety Data

Sheets (“MSDS”) so greatly impacts the safety and welfare

of the general public that this Court should grant peti-

tioner’s Writ of Certiorari in this case. The court of ap-

peals’ holding that federally mandated MSDS are not

scientifically reliable is not only clearly erroneous, but it

also now subjects health-care providers, emergency first

responders and others to third-party liability for relying on

MSDS when they are actually required by training and

statute to rely 6n MSDS for diagnosis and treatment

purposes. This is a jurisdictionally significant case pre-

senting the Court for the first time the opportunity to

address the scientific reliability of federally mandated

MSDS and resolve the conflict between state and federal -

law created by the court of appeals’ opinion, and correct

the court of appeals’ erroneous conclusion that MSDS are

not scientifically reliakle.

The court of appeals’ holding that MSDS are not

scientifically reliable simply defies logic, given the specific

federal regulations that require manufacturers to reveal

known risks and hazards and require that MSDS be

scientifically reliable, and the information provided on the

MSDS be based on established, peer-reviewed scientific

literature. Clearly, this case presents issues of vital impor-

tance not only to the jurisprudence of the nation but to all

those health-care providers, first-responders, and others,

such as employers, employees, and transporter of hazard-

ous chemicals, who are required by federal and state law

to rely on the scientific reliability of MSDS. Attached as

Exhibit G are just a few examples of those persons who

will be materially and negatively impacted by the court of

appeals’ erroneous opinion.

REASONS FOR GRANTING THE PETITION

The jurisdictional impact of this case is clearly signifi-

cant, and it is important that this Court speak on the issue

of the scientific reliability of Material Safety Data Sheets

(MSDS), resolve the conflict created by the court of ap-

peals’ opinion, and correct the court’s erroneous conclusion

that MSDS are not scientifically reliable. The court of

appeals’ holding that MSDS are not scientifically reliable

if left uncorrected will expose all those required by federal

and state law to rely on the scientific reliability of MSDS

to liability for acting consistently with federal law. Specifi-

cally, this Court should grant certiorari for the following

reasons:

A. The court of appeals’ holding that federally

mandated MSDS is no evidence that the particu-

lar hazardous chemical can generally cause the

injury specifically identified in the MSDS is con-

trary to and conflicts with federal regulations

requiring the MSDS to be scientifically reliable

and accurate.

The court of appeals’ opinion holds that MSDS, which

are federally manaated of every manufacturer and im-

porter of hazardous chemicals, is no evidence that the

particular hazardous chemical can generally cause the

injury identified in the MSDS. The opinion is contrary to

and conflicts with federal regulations that require that all

MSDS be scientifically reliable and accurate. Brookshire

Brothers, Inc. v. Smith, 176 S.W.3d 30, 38 (Tex. App. —

Houston [1st Dist.] 2004, pet. denied). In this case, the court

of appeals held an evidentiary void existed and was caused

by the lack of a specific, detailed showing of scientific reliabil-

ity. The court held the evidentiary void could be remedied

only by an established, scientific connection between the

commercial cleaners and RADS (the injury sustained by

petitioner). Jd. This is precisely what the MSDS was de-

signed to provide and did provide in this case. Ss

Appendix B to 29 C.F.R. §1910.1200 mandates the

standards to which the MSDS should adhere. Appendix B

reads in pertinent part:

The quality of a hazard communication program is

largely dependent upon the adequacy and accuracy

of the hazard determination. ... Chemical manu-

facturers, importers, and employers evaluating

chemicals are not required to follow any specific

methods for determining hazards, but they must

be able to demonstrate that they have - *e-

quately ascertained the hazards of the chemi-

cals produced or imported in accordance with

the criteria set forth in this Appendix.

Hazard evaluation is a process which relies heav-

ily on the professional judgment of the evaluator,

particularly in the area of chronic hazards. The

performance-orientation of the hazard determi-

nation does not diminish the duty of the chemical

manufacturer, importer or employer to conduct

a thorough evaluation, examining all rele- _

vant data _ and producing a_ scientifically

defensible evaluation. For purposes of this

standard, the following criteria shall be used in

making hazard determinations that meet the re-

quirements of this standard.

1. Carcinogenicity: As described in paragraph

(d)(4) of this section and Appendix A of this sec-

tion, a determination by the National Toxicology

Program, the International Agency for Research

on Cancer, or OSHA that a chemical is a carcino-

gen or potential carcinogen will be considered

conclusive evidence for purposes of this section.

In addition, however, all available scientific

data on carcinogenicity must be evaluated

in accordance with the provisions of this Appen-

dix and the requirements of the rule.

2. Human data: Where available, epidemiol-

ogical studies and case reports of adverse

health effects shall be considered in the

evaluation.

3. Animal data: Human evidence of health effects

in exposed populations is generally not available

for the majority of chemicals produced or used in

the workplace. Therefore, the available results

of toxicological testing in animal populations

shall be used to predict the health effects that

may be experienced by exposed workers. In par-

ticular, the definitions of certain acute hazards re-

fer to specific animal testing results (see Appendix

A).

4. Adequacy and reporting of data. The results

of any studies which are designed and conducted

according to established scientific principles, and

which report statistically significant conclusions

regarding the health effects of a chemical, shall

be a sufficient basis for a hazard determination

and reported on any material safety data

sheet. In vitro studies alone generally do not

form the basis for a definitive finding of hazard

under the HCS since they have a positive or

negative result rather than a statistically signifi-

cant finding.

29 C.F.R. §1910.1200 App. 7 (emphasis added).

The court of appeals’ conclusion that MSDS are not

scientifically reliable is direct'y in conflict with federal

regulations which specifically require that the information

provided on the MSDS be scientifically reliable. As de-

tailed above, manufacturers and importers of hazardous

chemicals are, as a matter of law, required to research the

best, peer-reviewed scientific literature to form the MSDS.

29 C.F.R. §1910.1200(g)(5). See e.g. Curtis v. M&S Petro-

leum, 174 F.3d 661 (5th Cir. 1999); Westberry v. Gislared

Gummi AB., 178 F.3d 257, 265 (4th Cir. 1999); McCullock

v. H.B. Fuller Co., 61 F.3d 1038, 1043-44 (2nd Cir. 1995).

Should the court of appeals’ decision be allowed to stand, it

will render these federal regulations requiring the MSDS

to be scientifically reliable, completely meaningless, and

puts the jurisprudence of the State of Texas in direct

conflict with federal law.

The court of appeals’ holding that epidemiological

studies are required defies common sense when discussing

known hazardous chemicals. The federal government’s

regulation and enforcement of the MSDS ensures the

scientific reliability of the MSDS. It makes absolutely no

sense to expose existing populations to known toxins when

the federal government requires manufacturers and

importers of hazardous chemicals to prepare the MSDS

and warning labels with “all the information regarding

health and environmental hazards, analyze the chemistry

of hazardous chemicals, assess the hazard, provide hazard

warning information, and identify potential injury.” 29

C.F.R. §1910.1200 (1998). All manufacturers of hazardous

chemicals must make a health hazard determination that

includes a mandatory requirement to consider “when

available, epidemiological studies and case reports of

adverse health effects” when forming a MSDS. 29 C.F.R.

§1910.1200, App. B.

Finally, the-court-of appeals erroneously relies on the

Fifth Circuit’s opinion in Moore v. Ashland. In Moore, the

Fifth Circuit after finding the expert offered no scientific

support for his general theory that exposure to Toluene

solution at any level would cause RADS, the Court stated:

Given the paucity of facts Dr. Jenkins had avail-

able about the level of Moore’s exposure to the

Toluene solution, his causation opinion would

have been suspect even if he had scientific sup-

port for the position that the Toluene solution

could cause RADS in a worker exposed to some

minor level of the solution. Under Daubert, any

step that renders the analysis unreliable ...

renders the expert’s testimony inadmissible. This

is true whether the step completely changes a re-

liable methodology or merely misapplies that

methodology. See In re Paoli R.R. Yard PCB Liti-

gation, 35 F.3d 717, 745 (3d Cir. 1994) (emphasis

in original).

Moore v. Ashland, 151 F.3d 269, 279 n. 10 (5th Cir. 1998).

In this case, there is simply no dispute that the

methodology is reliable, and that the methodology was

applied correctly.

B. The court of appeals’ holding that MSDS are not

scientifically reliable will expose all those re-

quired by federal law to rely on the scientific reli-

ability of MSDS to liability for acting consistently

with federal law.

The court of appeals’ decision is not only directly in

conflict with federal law, but jeopardizes the ability of health-

care providers and other emergency responders to make

speedy and informed decisions about how to treat those who

are exposed to hazardous chemicals. The court of appeals’

opinion also negatively affects the decisions of those required

to rely on MSDS in the handling and transporting of hazard-

ous chemicals. Persons handling and transporting hazardous

chemicals are now at an increased risk of third-party liability

for reliance on MSDS. Federal and state law require employ-

ers, employees, practicing physicians, toxicologists, emergency

room doctors, hazardous materials teams and other health

care providers to rely on MSDS and warning labels prepared

by the manufacturer. 29 C.F.R. §1910.1200 (1989). They do so

because the manufacturer is required by the federal law to

consider “when available, epidemiological studies and case

reports of adverse health effects” when making a health

hazard determination in forming the MSDS. 29 C.FR.

§1910.1200, App. B.

As such, medical books and treatises tell physicians to

rely on MSDS and warning labels. AMERICAN MEDICAL

ASSOCIATION, GUIDES TO THE EVALUATION OF

PERMANENT IMPAIRMENT (Lina Cocchiarella, MS, MSC

& Gunnar B.J. Andersson, MD, PhD eds., 5th ed.) (2002),

ENVIRONMENTAL AND OCCUPATIONAL MEDICINE

(William N. Rom, M.D., M.P.H. ed., 2nd ed.) (1992); OCCUPA-

TIONAL MEDICINE (Carl Zenz, M.D., Sc.D., Q. Bruce

Dickerson, M.D., M.P.H., Edward P. Harvarth, Jr., M.D.,

M.P.H. eds., 3rd ed.) (1994); OCCUPATIONAL AND

ENVIRONMENTAL RESPIRATORY DISEASE (Phillip

Harber, M.D., M.P-H., Mare B. Schenker, M.D., M.P.H., John

R. Balmes, M.D. eds.); and HAZARDOUS MATERIALS

TOXICOLOGY, CLINICAL PRINCIPLES OF ENVIRON-

MENTAL HEALTH (John B. Sullivan, Jr., M.D., Gary R.

Krieger, M.D., M.P.P..) (1992). These medical books and

treatises demonstrate the utilization of MSDS and warn-

ing labels is widely recorded in the occupational medicine

literature and in fact, “are required,” “is necessary,” “must

be included,” “can be quite helpful” and serves as a “cor-

nerstone” according to the literature. Id.

Dr. Snodgrass, of the University of Texas Medical

Branch, Clinical Pharmacology-Toxicology and Texas

Poison Center, filed an amicus submission in the court of

appeals that clearly explains physicians are educated and

directed to rely on MSDS in treating patients exposed to

hazardous chemicals. (App. E., infra.) The court of appeals’

opinion would now require physicians and educators of

physicians to change their teaching practices and treat-

ment protocols when dealing with injuries resulting from

exposure to hazardous chemicals. Such a change has no

reasonable basis in scientific fact, and no basis in law. The

- impact of the court of appeals’ finding regarding the

scientific reliability of MSDS and warning labels is far

reaching and should be corrected.

C. The court of appeals’ degradation of MSDS is

contrary to public policy.

Serious public policy concerns are raised by the court of

appeals’ erroneous conclusion about the scientific reliabil-

ity of federally mandated MSDS. The safety and welfare of

the general public is at risk and those persons willing to

serve and provide medical treatment to victims of expo-

sure to hazardous chemicals will be subject to unwar-

ranted liability. Such a result is directly contrary to the

public policy of the State of Texas, the nation as a whole,

and the federal laws which created and govern the re-

quirements of MSDS.

The amicus submissions by the District Chiefs of the

Hazardous Materials Response Team demonstrate that

the Houston Fire Department’s ability to serve the general

public will be seriously and negatively eroded if the court

of appeals’ erroneous holding is not reversed. (App. F,

infra.) The amicus submission of District Chief Snell and

District Chief White clearly demonstrate why it is impor-

tant that this Court exercise jurisdiction in this case and

correct the court of appeals’ decision. District Chief Snell

and District Chief White both make clear in their respec-

tive submissions that members of the Hazardous Materi-

als Response Team are educated and directed to rely on

MSDS and, in fact, must routinely do so to perform their

duties as emergency first responders to incidents involving

hazardous chemicals and the safety and welfare of the

general public. The court of appeals’ opinion now says to

emergency responders that this federally mandated

information is not scientifically reliable in spite of regula-

tions that require scientific reliability. The safety and

welfare of the general public clearly merits this Court’s

consideration of the important issuer presented by this

case and the amicus submissions at‘ached hereto demon-

strate why this Court should exe® ‘se jurisdiction and

correct the court of appeals’ erm »*ous holding that feder-

ally mandated MSDS are not scien*i/ically reliable.

CONCLUSION

For the foregoing reason, Petitioners respectfully

request that certiorari be granted.

Respectfully submitted,

ALICE OLIVER-PARROTT

Counsel of Record for Petitioner

MARIA TERESA ARGUINDEGUI

Attorney for Petitioner

SHARI GOLDSBERRY

Of Counsel

BURROW & PARROTT, L.L.P.

1301 McKinney Street

Suite 3500

Houston, Texas 77010-3092

(713) 222-6333

APPENDIX A

2004 WL 1064776

Court of Appeals of Texas,

Houston (1st Dist.).

BROOKSHIRE BROTHERS, INC”, Appellant,

Wesley SMITH, Appellee.

No. 01-02-00677-CV.

May 13, 2004.

Supplemental Opinion Denying

Further Rehearing and En Banc

Reconsideration Feb. 17, 2005.

Curtis W. Fenley III, Warren T. McCollum, Fenley &

Bate, L.L.P., Lufkin, TX, for Appellant.

Alice Oliver-Parrott, Maria Teresa Arguindegui,

Burrow & Parrott, L.L.P., Houston, TX, Reese Andrews,

Nacogdoches, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices

ALCALA and HIGLEY.

OPINION ON REHEARING

ELSA ALCALA, Justice.

Appellee, Wesley Smith, has filed a motion for rehear-

ing and a motion for rehearing en banc of our opinion on

rehearing, issued on December 31, 2003. Appellant,

Brookshire Brothers, Inc. (Brookshire), has filed a re-

sponse to both motions. We grant rehearing, withdraw our

opinion of December 31, 2003, issue this opinion in its

stead, and vacate our judgment of December 31, 2003.

Accordingly, we deny the motion for rehearing en banc as

moot.’

In this chemical-exposure case, Brookshire appeals a

jury verdict rendered in favor of appellee, Wesley Smith,

for injuries Smith claims that he sustained when he was

exposed to commercial cleaning products while employed

by Brookshire. The jury awarded Smith $46,000 in actual

damages and $250,000 in punitive damages, but the trial

court reduced the punitive-damages award to $200,000.

See Tex. Civ. Prac. & Rem.Code Ann. § 41.008 (Vernon

Supp.2004). In seven issues, Brookshire challenges the

legal sufficiency of Smith’s causation evidence, the admis-

sibility of that evidence, and the jury’s finding of malice.

We reach only the legal-sufficiency issue and reverse and

render judgment that Smith take nothing.

Background

In September 1995, Smith was employed as a general

maintenance worker at a Brookshire grocery store. During

an evening shift, Doug Kranzler, Sm‘th’s immediate

supervisor, directed Smith to clean the walls and vents of

the store’s bakery. Kranzler provided Smith with several

commercial cleaners, including Clorox Liquid Bleach,

Easy-Off Oven Cleaner, Lime-A-Way, Scrubbing Bubbles,

and Clorox Formula 409. After Smith began applying the

commercial cleaners in the bakery, he experienced irrita-

tion to his eyes, skin, nose, and throat. Smith complained

to Kranzler about the irritation and asked for protective

gear to wear while cleaning the bakery. Kranzler informed

' See Giesberg v. State, 945 S.W.2d 120, 131 n. 3 (Tex.App.-Houston

[1st Dist.] 1996), aff’d, 984 S.W.2d 245 (Tex.Crim.App.1998).

Smith that protective gear was not available and directed

Smith to complete his work. Despite persistent irritation,

Smith continued cleaning the bakery.

On the following evening, Kranzler again directed

Smith to use the same combination of commercial cleaners

to clean the store’s bathroom. Kranzler did not provide

Smith with any protective gear, and Smith experienced the

same irritations as those of the previe:s evening. Smith

left at the end of his shift, feeling il:. Smith’s parents,

concerned about his condition, took him for emergency-

room treatment. Smith was diagnosed with reactive

airways dysfunction syndrome (RADS), an asthmatic

condition that impairs breathing and oxygen flow.

Smith sued Brookshire for personal injuries, alleging

that Brookshire’s negligence and failure to provide a

reasonably safe workplace proximately caused his RADS.

At trial, Smith presented excerpts of the deposition testi-

mony of Gary Friedman, M.D., a board-certified specialist

in pulmonary disease and internal medicine, as his sole

evidence of causation.’ Dr. Friedman testified that the

September 1995 chemical exposure proximately caused

Smith to suffer from either RADS or a similar asthmatic

condition. Dr. Friedman based his opinion on material

* Smith also presented the testimony of Smith’s treating physician,

G.W. Dahlberg, M.D., and an industrial-hygiene expert, Vernon E. Rose,

Ph.D. Dr. Dahlberg testified that Smith suffered from RADS. Dr. Rose

testified that Brookshire failed to provide Smith with a reasonably safe

workplace and that this failure constituted malice. Neither Dr. Dahl-

berg nor Dr. Rose testified that Smith’s exposure to the commercial

cleaners caused RADS, and Smith concedes on appeal that neither

doctor “was called to testify ... [regarding] causation.” Thus, we

evaluate Dr. Friedman’s testimony as Smith’s sole evidence of causa-

tion.

safety data sheets (MSDS), the commercial cleaners’

warning labels, Smith’s medical records, and Smith’s

personal account of his exposure to commercial cleaners on

the evenings in question. The MSDS and warning labels

identified the contents of the commercial cleaners and the

health hazards associated with each. Dr. Friedman clari-

fied, however, that he was not an expert in chemistry. He

did not know which commercial cleaner, or combination of

cleaners, caused Smith’s RADS and did not know the

amount of chemical concentration to which Smith had

been exposed. At no point did Dr. Friedman refer to any

scientific literature associating RADS with commercial

cleaners.

Causation and Chemical Exposure

In its fifth issue, which is dispositive of this appeal,

Brookshire contends that the evidence was legally insuffi-

cient to prove that Smith’s RADS resulted from chemical

exposure. This issue requires us to decide whether the

causation evidence Dr. Friedman offered was scientifically

reliable and thus more than a scintilla of evidence to

support the judgment in Smith’s favor.

A. Preservation of Error

As a preliminary matter, we address Smith’s conten-

tion that Brookshire did not preserve error. “To preserve a

complaint that scientific evidence is unreliable and thus,

no evidence, a party must object to the evidence before

trial or when the evidence is offered.” Kerr-McGee Corp. v.

Helton, No. 02-0356, 47 Tex. Sup.Ct. J. 248, 251, __

S.W.3d __., 2004 WL 224458, *5 (Jan. 30, 2004)

———)

(quoting Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402,

409 (Tex.1998)). An objection made after the jury has

returned its verdict comes too late. Id. (quoting same). The

purpose of the timeliness requirement is twofold: to allow

the offering party “an opportunity to cure any defect” and

to prevent “trial and appeal by ambush.” Jd. (quoting

same).

In Kerr-McGee Corporation, the expert testimony of

Michael Riley was the only evidence offered on the amount

of damages for breach of an implied covenant to protect a

leasehold. 47 Tex. Sup.Ct. J. at 248, 133 S.W3d at __,

2004 WL 224458 at *1. After cross-examining Riley, Kerr-

McGee objected and moved to strike the testimony as

unreliable. Jd. The trial court overruled the motion and

entered judgment on the jury verdict, and the court of

appeals affirmed. Jd. On Kerr-McGee’s petition for review,

the supreme court concluded that Riley’s expert testimony

was unreliable and, therefore, no evidence. As here, the

responding party argued that Kerr-McGee did not timely

object and therefore had not preserved error. See id. at

251, _ S.W.3d at __, 2004 WL 224458 at *4-*5. The

supreme court held that Kerr-McGee preserved error, as

required by Maritime Overseas v. Ellis, by objecting to

Riley’s testimony immediately after cross-examining him.

Kerr-McGee Corp., 47 Tex. Sup.Ct. J. at 252, S.W.3d at

___, 2004 WL 224458 at *6.

Before trial began, Brookshire moved to strike Dr.

Friedman’s testimony on the grounds that it was scientifi-

cally unreliable. The trial court considered this motion at a

pretrial hearing and overruled Brookshire’s objection.’ Dr.

* Although Brookshire captioned its motion as a “Motion in Limine

to Exclude Expert Witnesses,” both the motion and the reporter’s record

show that the purpose of the motion was to bar Dr. Friedman from

(Continued on following page)

Friedman testified at trial through excerpts of his deposi-

tion read into the record. Before his testimony was offered,

the trial court ruled on the objections that Brookshire had

made during the deposition and thus clarified which

excerpts would come into evidence. As Dr. Friedman’s

deposition testimony was presented, Brookshire objected

again to Dr. Friedman’s testimony, as follows: “(H]e is not

qualified based on Daubert-Havner. He does not know the

chemical concentrations and does not know the chemicals

and does not know the exposures. His testimony is based

on MSDS sheets, which is improper scientific evidence.”

Brookshire’s objection occurred just before the portion of

Dr. Friedman’s testimony in which he referred to MSDS

sheets. The trial court overruled Brookshire’s objection,

noting, “Your objection is overruled. You have it on the

record.”

We conclude that Brookshire complied with—the

timeliness requirements of Maritime Overseas v. Ellis by

moving to strike and exclude Dr. Friedman’s testimony,

both before trial began and during trial, on the grounds

that his expert testimony was not reliable. There was no

trial by ambush, and there has been no appeal by ambush.

See Kerr-McGee Corp., 47 Tex. Sup.Ct. J. at 252, __

S.W.3d at __, 2004 WL 224458 at *5.

B. Standard of Review

Brookshire’s burden on appeal is to demonstrate that

there is no evidence to support the adverse judgment in

favor of Smith. See Croucher v. Croucher, 660 S.W.2d 55,

testifying. Indeed, Smith’s trial counsel referred to Brookshire’s pretrial

motion as seeking that result.

58 (Tex.1983). In determining whether there is no evidence

of probative force to support a jury’s finding, we consider

the evidence in the light most favorable to the verdict and

indulge every reasonable inference in the prevailing

party’s favor. Merrell Dow Pharm., Inc. v. Havner, 953

S.W.2d 706, 711 (Tex.1997). We will sustain a no-evidence

point when (1) there is a complete absence of evidence of a

vital fact, (2) the court is barred by rules of law or of

evidence from giving weight to the only evidence offered to

prove a vital fact, (3) the evidence offered to prove a vital

fact is no more than a mere scintilla, or (4) the evidence

conclusively establishes the opposite of a vital fact. Id.

More than a scintilla of evidence exists when the evidence

supporting the finding, as a whole, rises to a level that

would enable reasonable and fair-minded ~— to differ

in their conclusions. Jd.

To establish causation in a personal-injury suit, a

plaintiff must prove that the defendant’s conduct caused

an event and that this event caused the plaintiff to suffer

compensable injuries. Burroughs Wellcome Co. v. Crye, 907

S.W.2d 497, 499 (Tex.1995); Coastal Tankships, U.S.A.,

Inc. v. Anderson, 87 S.W.3d 591, 603 (Tex.App.-Houston

{1st Dist.] 2002, pet. denied). When a lay person’s general

experience and common sense will not enable that person

to determine causation, expert testimony is required.

Coastal Tankships, 87 S.W.3d at 603. Expert testimony is

particularly necessary in chemical-exposure cases, in

which medically complex diseases and causal ambiguities

compound the need for expert testimony. See id.; see also

Hernandez v. Tex. Employers’ Ins. Ass’n, 783 S.W.2d 250,

252-53 (Tex.App.-Corpus Christi 1989, no writ) (holding

that expert testimony needed to determine cause of

asthma, which had uncertain causal nature).

Expert testimony must be reliable; otherwise, it is not

evidence.” See Hauner, 953 S.W.2d at 712-13; Coastal

Tankships, 87 S.W.3d at 610. An expert’s bare opinion will

not suffice. Havner, 953 S.W.2d at 711. We review an

expert’s testimony in its entirety and will not accept the

expert’s opinion as some evidence merely because the

expert used “magic words.” Jd. Expert testimony that is

not based on reasonable medical probability, but relies

instead on possibility, speculation, or surmise, does not

assist the jury and cannot support a judgment. See id. at

712.

Much like toxic-tort plaintiffs, chemical-exposure

plaintiffs must prove both general and specific causation.

See Havner, 953 S.W.2d at 714; Coastal Tankships, 87

S.W.3d at 602. General causation asks whether a sub-

stance is capable of causing a particular injury in the

general population; specific causation asks whether that

substance caused a particular individual’s injury. Id.

Proving one type of causation does not necessarily prove

the other, and logic dictates that both are needed for a

chemical-exposure plaintiff to prevail.° Id.; Minn. Mining

* The following non-exclusive factors may be considered in

determining reliability: (1) the extent to which the expert’s theory has

been or can be tested; (2) the extent to which the expert’s technique

relies upon his own subjective interpretation; (3) whether the expert’s

theory has been subjected to peer review and publication; (4) the

potential rate of error of the theory; (5) whether the expert’s theory or

technique has been generally accepted as valid by the relevant scientific

community; and (6) the non-judicial uses that have been made of the

expert’s theory or technique. See E.J. du Pont de Nemours & Co. v.

Robinson, 923 S.W.2d 549, 557 (Tex.1995).

* A plaintiff may not be able to offer direct, reliable evidence of

specific causation. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706,

715 (Tex.1997). A plaintiff may, however, be able to prove specific

causation circumstantially by offering general-causation evidence, such

(Continued on following page)

& Mfg. Co. v. Atterbury, 978 S.W.2d 183, 199-200

(Tex.App.-Texarkana 1998, pet. denied).

C. Dr. Friedman’s Testimony

Smith contends that Dr. Friedman based his causa-

tion opinion on (1) specialized training and experience, (2) .

Smith’s medical records and his account of the exposure in

question, (3) the MSDS and the commercial cleaners’

warning labels, and (4) “other peer review articles.” After

reviewing Dr. Friedman’s testimony in its entirety, we

conclude that his testimony cannot support the judgment

in Smith’s favor because Dr. Friedman’s opinion does not

provide scientifically reliable proof of general causation.

Dr. Friedman did not present a scientific foundation

regarding general causation, as required by Havner. See

id. at 714. Specifically, Dr. Friedman did not refer to a

single epidemiological study or scientific article to prove

that exposure to commercial cleaners can cause RADS.

Although Dr. Friedman testified that Lime-A-Way decom-

poses into a toxin “known to cause RADS,” he did not

substantiate that conclusion with any scientific evidence.

Rather, without presenting a scientific basis for general

causation, Dr. Friedman opined that Smith’s exposure to

toxins in the commercial cleaners, as identified in the

MSDS and warning labels, caused either RADS or a

similar asthmatic condition. A jury may not presume

general causation, however. See Coastal Tankships, 87

as epidemiological studies, and by showing similarities between himself

and the studies’ subjects. Jd. at 720; Coastal Tankships, U.S.A., Inc. v.

Anderson, 87 S.W.3d 591, 603 n. 21 (Tex.App.-Houston {1st Dist.] 2002,

pet. denied).

A10

S.W.3d at 610-11. The absence of any general-causation

evidence, combined with the absence of reliable scientific

literature, creates a fatal evidentiary gap in Smith’s claim.

See id.; see also Havner, 953 S.W.2d at 712 (citing Rosen v.

Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir.1996) (an

expert who supplies nothing but a bottom line supplies

nothing of value to the judicial process)).

1. Specialized Training and Experience

Although Dr. Friedman is an accomplished physician

with extensive training and expertise, the controlling issue

is not the adequacy of his qualifications but whether his

opinion testimony was scientifically reliable. No matter

how qualified an expert is, his opinion must still demon-

strate scientific indicia that evidences reasonable medical

probability before the opinion can be accorded evidentiary

value. See Hauner, 953 S.W.2d at 712. Without a scientific

indicia of reliability, the expert’s opinion is mere specula-

tion. See id. To the extent that Smith argues that Dr.

Friedman relied on his own education, training, and

expertise in forming his opinion, therefore, Smith’s argu-

ment relates only to Dr. Friedman’s qualifications and

does not address reliability.

2. Smith’s Medical Records and Personal Account

of the Exposure

Smith contends that Dr. Friedman’s testimony regard-

ing Smith’s medical records and his personal account of the

exposure in question sufficiently demonstrated scientific

All

reliability.. The excerpts of Dr. Friedman’s deposition

testimony that Smith read to the jury, however, did not

connect Smith’s medical records or his personal account of

the exposure with a scientific showing of general causa-

tion. Dr. Friedman’s testimony regarding the medical

records related to the type and extent of Smith’s injury

without offering a scientific insight into the general causes

of Smith’s condition. Smith attempts to substantiate Dr.

Friedman’s causation opinion by emphasizing portions of

Dr. Friedman’s testimony that do not relate to general

causation. There was no showing at trial that Smith’s

medical records addressed whether the commercial clean-

ers at issue were generally capable of causing RADS. To

prove general causation, Dr. Friedman needed to put forth

a scientific foundation. See id. at 719.

3. MSDS and Warning Labels

The record shows that Dr. Friedman based his causa-

tion opinion on the MSDS and the warning labels of the

commercial cleaners Smith used. Dr. Friedman’s extensive

reliance on the MSDS and warning labels was neverthe-

less insufficient because neither the MSDS nor the warn-

ing labels, standing alone, provide the type of specific,

detailed showing of scientific reliability required to accord

evidentiary value to an expert’s opinion. See Coastal

Tankships, 87 S.W.3d at 611 (holding that medical records,

discharge summaries, and MSDS were insufficient to

* The medical records were obtained from Smith’s treating

physicians, G.W. Dahlberg, M.D., C. Wayne Lawrence, Ph.D., and

Richard Jackson, M.D. Dr. Dahlberg and Dr. Jackson treated Smith for

RADS during the time leading up to trial, and Dr. Lawrence treated

Smith for anxiety.

Al12

establish scientific reliability); Moore v. Ashland Chem.,

Inc., 151 F.3d 269, 278 (5th Cir.1998) (noting that MSDS

have limited value in determining causation because of

lack of evidence showing what tests were conducted in

compiling MSDS). Smith is correct in asserting that the

MSDS and the warning labels identified particular toxins

in the commercial cleaners. Lime-A-Way’s MSDS and

warning label, for example, identified asthma or RADS as

a potential injury that could result from high levels of

exposure. But the MSDS and warning labels did not

demonstrate, scientifically, that the particular toxins at

issue generally cause RADS.’ See Moore, 151 F.3d at 278;

Coastal Tankships, 87 S.W.3d at 611. There was no evi-

dence produced at trial that discussed the scientific

foundation used in formulating the conclusions contained

in either the MSDS or the warning labels. Thus, even with

the MSDS and warning labels, an evidentiary void con- .

cerning general causation remained in Dr. Friedman’s

opinion. This void could have been remedied only by an

” In contending that Dr. Friedman’s reliance on the MSDS provided

an adequate scientific basis for general causation, Smith relies on

Curtis v. M & S Petroleum, 174 F.3d 661 (5th Cir.1999). In Curtis,

however, the expert cited several scientific studies in support of his

premise regarding genera) causation. See id. at 669. The court noted

that “both scientific literature and strong circumstantial evidence

support the causal connection.” Jd. at 670. Curtis did not, as Smith

contends, reject Moore’s holding that, in the absence of an established

scientific connection between the chemical exposure and illness, MSDS

are insufficient to show reliability. See Moore v. Ashland Chem. Inc.,

151 F.3d 269, 278 (5th Cir.1998). In this case, because Dr. Friedman did

not establish a scientific connection between Smith’s exposure to

commercial cleaners and RADS, his reliance on MSDS was not suffi-

cient to place evidentiary value on his causation opinion. See Havner,

953 S.W.2d at 712-13 (holding that expert testimony that is not reliable

is not evidence).

A13

established, scientific connection between the commercial

cleaners and RADS. See Moore, 151 F.3d at 278.

4. “Other Peer Review Articles”

Smith argues that Dr. Friedman established the

necessary scientific connection when he testified regarding

“other peer review articles,” including an article by Arch

Carson, M.D., before providing the causation opinion.

Although Dr. Friedman briefly answered a question

regarding Dr. Carson’s article, Dr. Friedman mentioned

the article only in passing and never referred to it for the

proposition that the commercial cleaners at issue gener-

ally cause RADS.’ In addition, although he discussed

MSDS extensively, Dr. Friedman did not discuss Dr.

Carson’s article in his causation report. The record does

not, therefore, support Smith’s assertion that Dr. Fried-

man relied on Dr. Carson’s article in forming an opinion

regarding general causation.

As to any “other peer review articles,” the only other

article to which Dr. Friedmari referred during his testi-

mony was an article published in the American Review of

Respiratory Disease. This article outlines the American

Thoracic Society’s guidelines on the evaluation of asthma

* At one point during the testimony, Smith asked Dr. Friedman the

following question regarding plaintiff’s exhibit 19:

Smith’s Counsel: No. 19, this is an article that was written

by Dr. Carson, along with a coauthor; and it indicates, I be-

lieve, that one of the determinants of injury, and I turn your

attention to page 519, it says, “Determinants of injury.” And

it says, “Toxic factors.” Is one of those factors, Dr. Friedman,

the duration of exposure?

Dr. Friedman: Yes.

Al4

impairment and disability, but is apparently a diagnosis

guide that is unrelated to causation. There was no testi-

mony at trial that referenced the article as scientific

evidence of general causation. Contrary to Smith’s conten-

- tion, the article appears irrelevant to the issue of general

causation.

Conclusion

In sum, the excerpts of Dr. Friedman’s deposition

testimony that Smith read to the jury did not present a

general-causation opinion based on reasonable medical

probability. Dr. Friedman provided no scientific support for

his theory that Smith’s exposure to the commercial clean-

ers in question was capable of causing RADS. The analyti-

cal gap between Dr. Friedman’s causation opinion and the

scientific data advanced to support that opinion was

simply too wide. See Moore, 151 F.3d at 279. Because

Smith’s causation expert provided opinion testimony that

was mere conjecture and, therefore, not evidence, we hold

that no scientifically reliable evidence supports the jury’s

verdict in favor of Smith. See Havner, 953 S.W.2d at 712.

We sustain issue five. We need not address Smith’s

remaining issues.

We reverse the judgment of the trial court and render

judgment that Smith take nothing.

Al5

SUPPLEMENTAL OPINION ON MOTIONS

FOR FURTHER REHEARING AND

FOR EN BANC RECONSIDERATION

ELSA ALCALA, Justice. |

Appellee, Wesley Smith (Smith), has challenged our

opinion issued on rehearing on May 13, 2004 by filing a

“Motion for Rehearing En Banc.” We construed Smith’s

motion as requesting both further rehearing and en banc

reconsideration. We have denied further rehearing, and

the en banc Court has voted to deny en banc reconsidera-

tion.

We issue this supplement to our opinion of May 13,

2004 to (1) explain the settled practice that this Court

follows when a party timely files both a motion for rehear-

ing or further rehearing and a motion for en banc recon-

sideration, as we described that practice in Butler v. State,

6 S.W.3d 636, 637 n. 1 (Tex.App.-Houston [1st Dist.] 1999,

pet. ref’d), and thus clarify that (2) the Butler practice

applies in civil cases.

Procedural Background

This Court has issued three opinions in this case — an

original opinion, issued on July 31, 2003, and two opinions

on rehearing ssued on December 31, 2003 and May 13,

2004. Smith cnallenged each of these by filing a single

motion in which he requested both rehearing by the

original pane! of justices who decided the case and recon-

sideration by the en banc Court. Appellant, Brookshire

' The Rules of Appellate Procedure contain no provisions for

“rehearing en banc.” See Tex.R.App. P. 49.7 (En Banc Reconsideration).

Al16

Brothers, Inc., responded to all three motions. The Court

has applied the same procedural practice to each of

Smith’s challenges to the three opinions. The panel of

justices who heard the case has twice granted Smith’s

motions for rehearing by issuing a new opinion and judg-

ment, These issued on December 31, 2003 to replace the

July 31, 2003 opinion and judgment, and on May 13, 2004

to replace the December 31, 2003 opinion and judgment.

Smith’s motions for en banc reconsideration of the July 31,

2003 and December 31, 2003 opinions were rendered moot

when the original panel granted rehearing.’

After we issued our May 13, 2004 opinion on rehear-

ing, Smith timely filed a “Motion for Rehearing en Banc.”

We construed that motion as requesting both further

rehearing and en banc reconsideration. The justices who

participated in the May 13, 2004 panel opinion considered

Smith’s motion, to the extent that it constituted a motion

for further rehearing, but concluded that it had no merit.

Smith’s motion was then presented to the en banc Court,

which voted to deny en banc reconsideration.

Discussion

A motion for rehearing differs from and serves a

different purpose than a motion for en banc reconsidera-

tion. For example, stricter time limits govern the motion

for rehearing than govern the motion for en banc reconsid-

eration. Compare Tex.R.App. P. 49.1 (must file motion for

? See Hartrick v. Great Am. Lloyds Inc. Co., 62 S.W.3d 270, 272

(Tex.App.-Houston [lst Dist.] 2001, no pet.) (opinion on rehearing;

citing Giesberg v. State, 945 S.W.2d 120, 131 n. 3 (Tex.App.-Houston

{1st Dist.} 1997) (opinion on rehearing), aff’d, 984 S.W.2d 245

(Tex.Crim.App.1998)).

Al7

rehearing within 15 days after court-of-appeals judgment

is rendered) with Tex.R.App. P. 49.7 (may file motion for

en banc reconsideration while court of appeals has plenary

jurisdiction);* see also Tex.R.App. P. 19.1 (plenary power of

court of appeals expires 60 days after judgment if no

timely filed motion to extend time or motion for rehearing

is then pending); Tex.R.App. P. 41.2(c) (stating that en

banc reconsideration is disfavored and listing standards);

Tex.R.App. P. 49.7 (reconsideration en bane suspends

finality of panel’s judgment or order).

Whether seeking rehearing, pursuant to rule 49.1, or

further rehearing, pursuant to rule 49.5, a party's sole

purpose is to convince the panel of justices who considered

the case to change the decision because it was erroneous —

for whatever reason. See Tex.R.App. P. 49.1, 49.5; see also

Tex.R.App. P. 49.3 (authorizing majority of justices who

participated in the case to grant rehearing). In contrast,

en banc reconsideration is limited to situations in which

(1) en banc reconsideration is necessary to secure or

maintain uniformity of the Court’s decisions or (2) ex-

traordinary circumstances require en banc consideration.

See Tex.R.App. P. 41.2(c).

Smith’s “Motion for Rehearing en Banc” begins by

arguing that extraordinary circumstances require en banc

consideration of this case and thus invokes one of the

standards of rule 41.2(c). See id. The arguments in the

motion, however, repeatedly assert that “the panel opinion

* Thus, a party who does not timely file a motion for rehearing or

timely move for an extension of time to file a motion for rehearing,

pursuant to rule 49.8, is limited to seeking en banc reconsideration

within the period of the appellate court’s plenary power. See Tex.R.App.

P. 19.1(a), 49.7, 49.8.

Al18

is wrong.” The substance of the motion thus concerns

matters pertinent to motions for further rehearing under

rule 49.5 and matters concerning rule 41.2(c).

When a party timely files both a motion for rehearing

or further rehearing and a motion for en banc reconsidera-

tion, it has long been the practice of this Court to present

the motion for rehearing or further rehearing to the

original panel of justices who heard the case; if the panel

denies rehearing or further rehearing, as here, the motion

for en banc reconsideration is then presented to the en

banc Court. See Butler v. State, 6 S.W.3d 636, 637 & n. 1

(Tex.App.-Houston [lst Dist.] 1999, pet. ref’d); see also

Barker v. Eckman, No. 01-01-00079-CYV, slip op. at 2, 2004

WL 163462 at *1 (Tex.App.-Houston [1st Dist.] Jan. 22,

2004, pet. granted) (mem. opinion on rehearing; citing

Butler for discussion of treatment of motions for en banc

consideration).*

Having considered the merits of Smith’s “motion for

_ rehearing en banc,” we deny the motion to the extent that

it constituted a further motion for rehearing under rule

49.5. See Tex.R.App. P. 49.5. On presentation of Smith’s

request for en banc reconsideration, the en banc Court

denied reconsideration en banc. See Tex.R.App. P. 49.7.

‘ If the panel grants rehearing, however, as occurred here twice

previously, then the “Motion for Rehearing En Banc” is rendered moot.

See Hartrick, 62 S.W.3d at 272 (citing Giesberg, 945 S.W.2d at 131 n. 3).

Al19

Conclusion

We deny further rehearing. =

En banc reconsideration was requested. No majority

of the en banc Court having voted for reconsideration, en

banc reconsideration is denied.

2004 WL 1064776 (Tex.App.-Hous. (1 Dist.))

APPENDIX B

CAUSE NO. 17290

bereigepcuieconsus : IN THE DISTRICT COURT OF

bie § TRINITY COUNTY, TEXAS

BROOKSHIRE §

BROTHERS, INC. ¢ 411th JUDICIAL DISTRICT

JUDGMENT

On the 10th day of December, 2001, came on to be

heard this civil cause, wherein Wesley Smith, the Plaintiff

in the cause, appeared both in person and through his

attorney of record and announced ready for trial, and

further, that Brookshire Brothers, Inc., Defendant in the

cause, appeared both by designated corporate representa-

tive and through its attorney of record and announced

ready for trial, and a jury having been previously de-

—.___manded a jury consisting of twelve qualified jurors was

duly empaneled by the Court and, thereafter, the case

proceeded to trial.

At the conclusion of the evidence, the Court submitted

the following questions of fact to the jury and obtained the

following answers (as reflected by the charge of the Court

which is incorporated herein by reference):

QUESTION NO. 1

- Did the negligence, if any, of the defendant, Brook-

shire Brothers, Inc., proximately cause the injury in

question to the plaintiff, Wesley Smith?

ANSWER “yes” or “no.”

ANSWER: Yes

QUESTION NO. 1A

Did the defendant, Brookshire Brothers, Inc., fail to

provide the plaintiff, Wesley Smith, a reasonably safe

work place which proximately caused the injvry in ques-

tion to the plaintiff Wesley Smith?

ANSWER “yes” or “no.”

ANSWER: Yes

You are instructed as follows:

Every employer shall furnish and maintain employ-

ment and a place of employment which shall be reasonably

safe and healthful for employees. Every employer shall

install, maintain, and use such methods, processes, de-

vices, and safeguards including methods of sanitation and

hygiene, as are reasonably necessary to protect the life

health, and safety of such employees, and shall do every

other thing reasonably necessary to render safe such

employment and place of employment.

QUESTION NO. 2

What sum of money, if paid now in cash, would fairly

and reasonably compensate Wesley Smith for his injuries,

if any, that resulted from the occurrence in question?

Consider the elements of damages listed below and

none other. Consider each element separately. Do not

include damages for one element in any other element. Do

not include interest on any amount of damages you find.

Answer separately, in dollars and cents, for damages,

if any.

a. Physical pain sustained in the past.

Answer $1,000.00

b. Physical pain that, in reasonable probability,

Wesley Smith will suffer in the future.

Answer $10,000.00

c. Mental anguish sustained in the past.

Answer $5,000.00

d. Mental anguish that, in reasonable probability,

Wesley Smith will. suffer in the future:

Answer $5,000.00

e. Loss of earning capacity sustained in the past.

Answer $0

f. Loss of earning capacity that, in reasonable

probability, Wesley Smith will sustain in the fu-

ture.

Answer $0

g. Physical impairment sustained in the past.

Answer $10,000.00

h. Physical impairment that, in reasonable probabil-

ity Wesley Smith will sustain in the future.

Answer $5,000.00

i. Medical care that, in reasonable probability

Wesley Smith will incur in the future.

Answer $10,000.00

QUESTION NO. 3

Do you find by clear and convincing evidence that the

_harm to Wesley Smith resulted from malice?

“Clear and convincing evidence” means the measure_

or degree of proof that produces a firm belief or conviction

of the truth of the allegations sought to be established.

“Malice” means an act or omission by Brookshire

Brothers,

(i) which, when viewed objectively from the

standpoint of Brookshire Brothers at the

time of its occurrence, involved an extreme

degree of risk, considering the probability

and magnitude of the potential harm to oth-

ers; and

(ii) of which Brookshire Brothers had actual,

subjective awareness of the risk involved,

but nevertheless proceeded with conscious

indifference to the rights, safety, or welfare

of others.

ANSWER “yes” or “no.”

ANSWER: Yes

QUESTION NO. 4

What sum of money, if any, if paid now in cash, should

be assessed against Brookshire Brothers and awarded to

Wesley Smith as exemplary damages, if any, for the

conduct found in response to Question No. 3.

“Exemplary damages” means an amount that you may

in your discretion award as a penalty or by way of pun-

ishment.

Factors to consider in awarding exemplary damages,

if any, are:

a. The nature of the wrong.

b. The character of the conduct involved.

c. The degree of culpability of Brookshire

Brothers.

d. The situation and sensibilities of the parties

concerned.

e. The extent to which, such conduct offends a

public sense of justice and propriety.

f. The net worth of Brookshire Brothers.

Answer in dollars and cents, if any.

$250,000.00

Inasmuch as it appears to the Court that the verdict of the

jury in the cause was for the Plaintiff Wesley Smith and

against the Defendant Brookshire Brothers, Inc., it is

therefore the ORDER of this Court that judgment be and

the same is hereby rendered on the verdict in favor of the

Plaintiff Wesley Smith and against Defendant Brookshire

Brothers, Inc.

It is, therefore, ORDERED, ADJUDGED, and

DECREED by this Court that the Plaintiff Wesley Smith

is entitled to recover and shall recover of and from the

Defendant Brookshire Brothers, Inc. the sum of $46,000 in

actual compensatory damages and the sum of $200,000 in

punitive damages.

It is FURTHER ORDERED that this judgment shall

include (by stipulation of the parties and without waiver of -

any rights otherwise perfectible by appeal) prejudgment

interest in the amount of $27,165.90; and postjudgment

interest on all damages, whether actual or punitive, in the

amount of ten percent (10%) per annum until paid.

It is FURTHER ORDERED that all costs of court

expended or incurred in this cause are adjudged against

Defendant Brookshire Brothers, Inc. All writs and proc-

esses for the enforcement and collection of this judgment

or the costs of court may issue as necessary. All other relief

not expressly granted herein is denied.

ENTERED this 26th day of February, 2002.

/s/ Robert H. Trap

JUDGE PRESIDING

[SEAL]

APPENDIX C

OFFICIAL NOTICE FROM

SUPREME COURT OF TEXAS [POSTMARK]

Post Office Box 12248 Apr. 21, 2006

Austin, Texas 78711-2248

RE: Case No. 05-0264

COA #: 01-02-00677-CV

STYLE: WESLEY SMITH

v. BROOKSHIRE BROTHERS, INC.

Today the Supreme Court of Texas denied the motion

for rehearing of the above-referenced petition for review.

MAIL TO:

MS. ALICE OLIVER-PARROT

BURROW & PARROTT LL P

1301 MCKINNEY SUITE 3500

HOUSTON TX 77010-3092

APPENDIX D

[LOGO] HAZARDOUS MATERIALS [LOGO]

RESPONSE TEAM

Houston Fire Department

7825 Harrisburg

Houston, Texas 77012

Phone: (713) 928-6711 or

(713) 928-6152

FAX (713) 928-6160

February 21, 2006

Mr. Andrew Weber, Clerk

Supreme Court of Texas

The Supreme Court Building

201 W. 14th Street, Room 104

Austin, Texas 78701

Re: Cause No 05-0264; Wesley Smith Brookshire

Brothers, Inc.; On Appeal from the lst Court of Ap-

peals, Houston, Texas.

Dear Mr. Weber:

Please file and submit this amicus letter brief to the

Justices of the Supreme Court. My name is Blake White,

and I am tendering this amicus submission for filing and

distribution to the Justices of the Court in my capacity as

the District Chief of the Houston Fire Department Haz-

ardous Materials Response Team. Because the court of

appeals’ opinion will greatly impact the ability of emer-

gency responders to treat victims of exposure to hazardous

chemicals, and may well expose emergency responders to

third-party liability when relying on Material Safety Data

Sheets (“MSDS”), the Houston Fire Department has an

interest in the correct development of the law with respect

to relying on the MSDS. I hav: » ot received any compen-

sation for the preparation of this letter.

On May 13, 2004, the First Court of Appeals in

Houston, Texas issued an opinion in the above-referenced

case, holding that the MSDS, required of every manufac-

turer and importer of hazardous chemicals by federal and

state law, cannot be relied upon as scientifically reliable

and accurate evidence that the particular hazardous

chemical named can generally cause the injury identified

in the MSDS itself. I have been advised that this Court

has declined to accept jurisdiction over this appeal to

correct this erroneous and significant holding. It is criti-

cally and vitally important to emergency responders who

treat victims of exposure to hazardous chemicals that the

Court accept jurisdiction and correct the court of appeals’

erroneous opinion. The court of appeals’ holding that a

MSDS is not scientifically reliable dramatically under-

mines established and approved education and practice of

the Houston Fire Department, and if allowed to stand will

result in a serious threat to public safety and health.

As members of the Hazardous Materials Response

Team, we are educated and directed to rely upon the

MSDS and must routinely rely on the information con-

veyed to perform our duties as emergency responders.

OSHA mandates that each product used commercially

which contains any hazardous ingredient must be accom-

panied by a Material Safety Data Sheet, or MSDS, upon

entering a facility if there is one or more person employed

at that location. The MSDS was initially designed to

convey important safety hazard information and measures

to protect persons who may come in contact with a prod-

uct, including employees, fire fighters, etc. Current,

revised and obsolete Material Safety Data Sheets must be

kept on file at a facility for 30 years or as long as the

company is in business (whichever comes first).

The MSDS also serves to provide important environ-

mental compliance information, including VOC content,

hazardous chemical ingredients and their CAS numbers,

product density, and vapor pressure. This information is

required for hazardous air pollutant (HAP) and VOC

emission calculations as well as other annual record

keeping and reporting requirements, such as SARA 311

and 312 reporting.

With the promulgation of the Hazard Communication

Standard (HCS) in 1983, the MSDS took a central role in a

regulatory scheme designed to ensure that workers had

essential safety and health information about the poten-

tially hazardous substances in their workplace. But as a

1996 NACOSH report noted, Material Safety Data Sheets

serve.a number of other purposes besides HCS and various

audiences beyond the general work force.

“The MSDS is used to provide information to emer-

gency responders and local planning authorities and also

serves as a primary data source for health professionals

working with exposed individuals,” the report noted.

The members of the Houston Fire Department’s

Hazardous Materials Response Team rely heavily upon

the information within the product’s MSDS. Because the

produc. manufacturer is required to generate the MSDS,

this information is very specific to the chemical in question

as opposed to the broad and general information found in

most references. Many times the Houston Fire Depart-

ment has provided, at the request of the receiving hospital,

an MSDS for the product to which victims were exposed or

contaminated with. The MSDS is also part of the docu-

mentation provided to medical facilities that subscribe to

MicroMedex, the nations leading information source on

chemicals and biological agents.

While there are other sources of technical data avail-

able, it is the experience of the Hazardous Material Re-

sponse Team that the MSDS is by far one of the most

useful pieces of product information readily available.

While the court of appeals was concerned about the

availability of epidemiological studies, it simply does not

make sense to expose existing populations to chemicals

that are already known toxins and are stipulated by their

manufacturer to cause certain reactions. Indeed, the

Federal Government requires manufacturers and import-

ers of hazardous chemicals to prepare the MSDS and

warning labels that have all the information regarding

health and environmental hazards, analyze the chemistry

of hazardous chemicals, assess the hazard, provide hazard

warning information, and identify potential injury. The

MSDS is required by federal law to be reliable and accu-

rate. In the context of known hazardous chemicals, the

MSDS may very well be the best available data to the

emergency responder. If the court of appeals’ opinion is not

corrected, victims of exposure to chemicals will suffer and

those emergency responders who are simply doing their

job could be subject to third-party liability. It is, therefore,

of vital importance to the public health and welfare that

this Court accept jurisdiction over this appeal to correct

the court of appeals’ erroneous holding about the scientific

reliability of Materials Safety Data Sheets.

Sincerely,

/s/ Blake White

Blake White

District Chief

Houston Fire Department

Hazardous Materials Response Team

ce: Ms. Alice Oliver-Parrott

Burrow & Parrott, LLP

1301 McKinney, Ste. 3500

Houston, Texas 77010

Curtis W. Fenley, III

Warren T. McCollum

FENLEY & BATE, L.L.P.

P.O. Box 450

Lufkin, Texas 75902-0450

CERTIFICATE OF SERVICE

This is to certify that on February 21, 2006, a true and

correct copy of the attached letter brief was served by

regular mail on all counsel shown below.

Ms. Alice Oliver-Parrott

Ms. Teresa Arguindegui

Burrow & Parrott, L.L.P.

1301 McKinney, Ste. 3500

Houston, TX 77010

Mr. Curtis Fenley, III

Mr. Warren T. McCollum

Fenley & Bate, L.L.P.

P.O. Box 450

Lufkin, TX 75902-0450

/s/ Blake White

Blake White

District Chief

Houston Fire Department

Hazardous Materials

Response Team

APPENDIX E

The University of Texas Medical Branch

School of Medicine Marine Biomedical Institute

Graduate School of Institute for the Medical

Biomedical Sciences Humanities

School of Allied Health UTMB Hospitals

Sciences

School of Nursing

Clinical Pharmacology-Toxicology

and

Texas Poison Center

University of Texas Medical Branch

301 University Blvd

Galveston

TX 77555-0631 |

tel: 409-772-9612

fax: 409-747-5205

(Filed Jan. 22, 2004)

Ms. Margie Thompson, Clerk

First Court of Appeals

1307 San Jacinto, 10th Floor

Houston

TX 77002

RE: No. 01-02-00677-CV; Breskshire Brothers, Inc. v.

Wesley Smith;

In the First Court of Appeals,

Houston, Texas

Dear Ms. Thompson: i

Please file and submit his amicus curiae letter brief to

Chief Justice Radack and Justices Alcala and Higley. I am

tendering to the Court as a Professor and Head of the

Clinical Pharmacology-Toxicology Unit, at the University

of Texas Medical Branch, and the Medical Director of the

Texas Poison Center — Houston/Galveston. My name is Dr. |

Wayne R. Snodgrass, M.D., Ph.D. This Court recently

issued an opinion in the above-referenced case, holding

that Material Safety Data Sheets (“MSDS”), required of

every manufacturer and importer of hazardous chemicals

by federal law, cannot be relied upon as scientifically

reliable and accurate evidence that the particular hazard-

ous chemical named can generally cause the injury identi-

fied in the MSDS itself. As physicians, we are educated

and directed to rely upon MSDS in treating patients

exposed to hazardous chemicals. The Court’s recent

opinion will impact greatly a physician’s ability to treat

patients and may well expose physician’s to third-part

liability when relying on MSDS. As a physician and

educator, I have an interest in the correct development of

the law with respect to relying on MSDS. I have not

received any compensation for the preparation of this

letter.

MSDS and warning labels may provide important infor-

mation regarding the irritancy and other properties of

chemicals. This information may include items such as

known instances of asthma resulting from certain inhaled

chemical vapors or fumes. To not utilize this information

in many instances would be substandard for a physician in

the course of evaluating and treating a patient.

Courts of law should be aware of the distinction between

the Havner/Robinson rulings including an odds ratio of 2.0

or greater in epidemiologic studies versus that of causa-

tion in general. The Havner and other similar rulings

apply when and if there is published peer-reviewed medi-

cal and scientific data in the form of an epidemiologic

study to address the issue under consideration. However,

many times, as we know in medicine and science, such

data may not exist. Thus, we physicians and scientists

utilize the best data available to make determinations of

causation as well as clinical diagnoses and selection of

optimal therapies.

This approach of utilizing the best available data has been

a tenet of medicine and science for more than 4 decades,

and pre-dates the U.S. legal system’s rulings of Havner

and similar legal writings, which are limited to and focus

only on a single odds ratio number from epidemiologic

studies.

The most widely cited written document on this approach

of utilizing the best available data is that of the Hill

criteria. These criteria were published in 1965 (cited

below) and include various considerations, not all of which

may be available in a given instance, that serve as a guide

to determination of causation. The Hill criteria include:

1. strength of the observed association,

consistency of the observed association,

specificity of the observed association,

temporal (time-course) relationship of the association,

7 * @ &

presence of a dose-response relationship (this may not

apply in cases of allergy),

biologic plausibility,

coherence of association (cause-effect interpretation

should not conflict with known pathology of the dis-

ease or illness in question),

8. experimentation, when feasible or available, i.e., does

preventive action based on some supposed association

in fact prevent the outcome in question.

Thus, courts of law should realize that Havner and other

similar writings apply only when sufficient data exist such

that an epidemiologic study has been done and published.

In many other instances, where such data is not available,

medically and scientifically rational consideration of the

best available data must be utilized and given appropriate

consideration with approaches such as the Hili criteria. To

not do so is to ignore and repudiate the most basic prem-

ises and foundations of medicine and science.

Sincerely,

/s/ Wayne R. Snodgrass

Wayne R. Snodgrass, M.D., Ph.D.

Professor and Head

Clinical Pharmacology-Toxicology Unit

Medical Directory, Texas Poison Center —

Houston/Galveston

Diplomate, American Board of Pediatrics

American Board of Medical Toxicology

American Board of Clinical Pharmacology

Past President, American Academy of Clinical Toxicology

Chairman, Scientific Advisory Committee, American

Association of Poison Control Centers

Chairman, Pediatric Expert. Committee, United States

Pharmacopeia

Chairman, Pata Safety Monitoring Board, Pediatric

Pharmacology Research Units, National Institutes of

Health

member, Steering Committee, Obstetric-Fetal Pharmacol-

ogy Research Units, National Institutes of Health

member, Council of Experts, United States Pharmacopeia

member, Non-Prescription Drug Advisory Committee, FDA

Hill AB: The environment and disease: association or

causation? Proceedings Royal Society Medicine 1965;

58:295 — 300

cc:

Ms. Alice Oliver-Parrott

Ms. Maria Teresa Arguindegui

Burrow & Parrott, LLP

Mr. Curtis W. Fenley, ITI

Mr. Warren T. McCollum

Fenley & Bate, LLP

_ APPENDIX F

[LOGO] HAZARDOUS MATERIALS [LOGO]

~~~ - RESPONSE TEAM

Houston Fire Department

7825 Harrisburg

Houston, Texas 77012

Phone: (713) 928-6711 or

(713) 928-6152

FAX (713) 928-6160

June 22, 2004

Ms. Margie Thompson, Clerk

First Court of Appeals

1307 San Jacinto, 10th Floor

Houston, Texas 77002

RE: No. 01-02-00677-CV;

Berkshire Brothers, Inc. v. Wesley Smith;

In the First Court of Appeals,

Houston, Texas

Dear Ms. Thompson:

Please file and submit this amicus curie [sic] letter

brief to the Chief Justice Radack and Justices Alcala and

Highley, tendered by the Houston Fire Department, Hazard-

ous Materials Response Team. My name is Daniel G. Spell

[sic], District Chief. This Court recently issued an opinion in

the above referenced case, holding that Material Safety

Data Sheets (“MSDS”), required of every manufacturer and

importer of hazardous chemicals by federal law, cannot be

relied upon as scientifically reliable and accurate evidence

that the particular hazardous chemical named can gener-

ally cause the injury identified in the MSDS itself. As

members of the Hazardous Materials Response Team, we

are educated and directed to rely upon MSDS and must

routinely rely on the information conveyed to perform our

duties as emergency responders. Because the Court’s

recent opinion will greatly impact the ability of emergency

responders to treat victims of exposure to hazardous

chemicals, and may well expose emergency responders to

third-party liability when relying on MSDS, the Houston

Fire Department has an interest in the correct develop-

ment of the law with respect to relying on MSDS. As

District Chief, I have not received any compensation for

the preparation of this letter.

OSHA mandates that each product used commercially

which contains any hazardous ingredient must be accom-

panied by a Material Safety Data Sheet or MSDS upon

entering a facility if there is one or more people employed

at that location. The MSDS was initially designed to

convey important safety hazard information and measures

to protect persons who may come in contact with a prod-

uct, including employees, fire fighters, etc. Currently,

revised, and obsolete MSDS must be kept on file at a

facility for 30 years or as long as the company is in busi-

ness (whichever comes first).

The MSDS also serves to provide important environ-

mental compliance information, including VOC content,

hazardous chemical ingredients and their CAS numbers,

product density, and vapor pressure. This information is

required for hazardous pollutant (HAPs) and VOC emis-

sion calculations, as well as other annual record keeping

and reporting requirements, such as SARA 311 and 312

reporting.

With the promulgation of the hazard communication

standard (HCS) in 1983, MSDSs took a central role in a

regulatory scheme designed to ensure that workers had

essential safety and health information about the poten-

tially hazardous substances in their workplace. But as a

1996 NACOSH report noted, MSDSs serve a number of

other purposes besides HCS and various audiences beyond

the general work force.

“The MSDS is used to provide information to emer-

gency responders and local planning authorities and also

serves as a primary data source for health professionals

working with exposed individuals,” the report noted.

The members of the Houston Fire Department’s

Hazardous Materials Response Team rely heavily upon

the information within the product’s MSDS. Because the

product manufacturer is required to generate the MSDS,

this information is very specific to the chemical in question

as opposed to the broad and general information feund in

most references. Many times the HFD has provided, at the

request of the receiving hospital, an MSDS for the product

to which victims were exposed or contaminated with. The

MSDS is also part of the documentation provided to

medical facilities who subscribe to MicroMedex, the

nations leading formation source on chemical and biologi-

cal agents.

CERTIFICATE OF SERVICE

This is to certify that on July 06, 2004, a true and

correct copy of the attached letter brief was served by

regular mail on all counsel shown below:

Ms. Alice Oliver-Parrott

Ms. Teresa Arguindegui

Burrow & Parrott, L.L.P.

1301 McKinney, Suite 3500

Houston, Texas 77010

Mr. Curtis W. Fenley, III

Mr. Warren T. McCollum

Fenley & Bate, L.L.P.

P.O. Box 450

Lufkin, Texas 75902-0450

/s/ Daniel G. Snell

Daniel G. Snell

District Chief

Houston Fire Department

Hazardous Materials

Response Team

APPENDIX G

Our federal government views Material Safety

Data Sheets as so reliable that the following are

exemplary categories of persons required by law to

use MSDS and to accept and acknowledge the

scientific reliability of the information contained

therein. Those listed below are also examples of

those persons who will be adversely and negatively

impacted by the court of appeals’ decision that

MSDS are not scientifically reliable. Additionally,

the court of appeals’ opinion conflicts with the

following federal regulations:

Affected Party |Federal Citation | Federal Mandate

Manufacturer 29 CFR Manufacturers and

and importers 1910.1200(g)(5) importers of

of hazardous hazardous chemi-

chemicals cals are required to

research the best,

peer-reviewed

scientific literature

to form the MSDS.

Every Employer {29 CFR ... “Employers are

in the United 1910.1200(d)\(1) not required to

States that 29 CFR evaluate chemicals

has a hazardous |1910.1200(gx8) unless they choose

chemical on site. not to rely on the

evaluation per-

formed by the

chemical manufac-

turer or importer

for the chemical

(the MSDS) to

satisfy this re-

quirement”

Affected Party

Federal Citation

Federal Mandate

29 CFR

1910.1200, App. E

OSHA regulations

tell employers

“you can rely on

the intormation

received from

your suppliers.

You have no inde-

pendert duty to

analyze the chemi-

cal or evaluate the

hazards of it.”

Local emergency

planning

committees

42 U.S.C.A.

§ 11021(a)(1)(A)

MSDS shall be

provided to the

agency under the

reporting require-

ments of the

Emergency

Planning and

Community Right

to Know Act

State Emergency

Response

Commissions

42 U.S.C.A.

§ 11021(a)(1)(A)

MSDS shall be

provided to the

agency under the

reporting require-

ments of the

Emergency

Planning and

Community Right

te Know Act

First Responders

and Fire

Departments

42 US.C.A.

§ 11021(a)(1)(A)

MSDS shall be

provided to the

agency under

the reporting

requirements of

Affected Party |Federal Citation |Federal Mandate

the Emergency _

Planning and

Community Right

to Know Act

Physicians 42U.S.C.A. - MSDS shall be

and Nurses § 11043(b) immediately

provided to a nurse

or physician when

they make a

request.

Manufacturers |7C.F.R. For initial accep-

of Filled Fiber § 1755.900 tance, the manu-

Optic Cables facturer must

submit... OSHA

MSDS for all

components.

Manufacturers ({C.F.R.§ 1755.910 |For initial accep-

of Outside Plant tance the manufac-

Housings and turer shall...

Serving Area Provide OSHA

Interface (SAI) MSDS for the

Systems product

Manufacturers /|16C.F.R. Where appropri-

of Products § 1500.14 ate, more detailed

requiring special information that

labeling

relates to chronic

hazard(s), such as

physical proper-

ties, decomposition

products, detailed

safety instructions,

or disposal recom-

mendations, shall

be included in

Affected Party

Federal Citation

Federal Mandate

supplemental

documents, such

as Material Safety

Data Sheets,

technical bro-

chures, technical

data sheets etc.

Manufacturers

of products

containing ~

Natamycin

21 C.F. R.

§ 573.685

To assure the safe

use of the additive,

the label or label-

ing of the additive

shall bear, in

addition to other

information re-

quired by the

Federal Food,

Drug, and Cos-

metic Act, the

following...A

contact address

and telephone

number for report-

ing adverse reac-

tions experienced

by users, or to

request a copy of

the MSDS for

natamycin.

Safety Managers |29 C.F-R. The employer shall

§ 1910.119 complete a compi-

lation of written

process safety

information before

conducting any

rocess hazard

Affected Party

Federal Citation

Federal Mandate

_—

analysis required

by the standard.

Note: MSDS

meeting the re-

quirements of 29

CFR 1910.1200(g)

may be used to

comply with this

requirement

Testers of Con-

centrated aque-

ous ammonium

hydroxide

29 C.F.R.

§ 1910.120, App. A

The person con-

ducting the test

shall review the

MSDS for aqueous

ammonia.

Analyzers

of asbestos

29 CFR.

§ 1915.1001, App. K

Some of the sol-

vents used, such as

THF (tetrahydro-

furan), are toxic

and should only be

handled in an

appropriate fume

hood and according

to instructions

given in the

MSDS.

‘One who deter- {29 C.F.R. Adequacy and

mines hazards ({§ 1917.28,App. B |reporting of data.

The results of any

studies which are

designed and

conducted accord-

ing to established

scientific princi-

ples, and which

report statistically

Affected Party

Federal Citation

Federal Mandate

significant conclu-

sions regarding the

health effects of a

chemical, shall be

a sufficient basis

for a hazard de-

termination and

reported on any

MSDS.

Chemical

manufacturer,

importer,

distributor,

or employer

29 C.FR.

§ 1917.28, App. C

The following is a

list of available

data sources which

the chemical

manufacturer,

importer, distribu-

tor, or employer

may wish to con-

sult to evaluate

the hazards of

chemicals they

produce or import

... Any informa-

tion obtained from

the supplier of the

chemical, such as

MSDS or product

safety bulletins.

First Aid Train-

ing Programs

29 C.F.R. Pt. 1918,

App. V

—

Trainees should be

instructed in the

acute effect of

chemicals utilized

in their plants, the

location of chemi-

cal inventories,

MSDS’s chemical

Affected Party

Federal Citation

Federal Mandate

emergency infor-

mation, and anti-

dote supplies.

Process Safety

Management

29 C.F.R.

§ 1926.64, App. C

Complete and

accurate written

information con-

cerning process

chemicals, process

technology, and

process equipment

is... anecessary

resource to a

variety of users

including the team

that will perform

the process haz-

ards analysis...

Current MSDS

information can be

used to help meet

this requirement.

Employers

working with

Asbestos

29 C.F-R.

§ 1926.1101, App. K

Some of the sol-

vents used, such as

THF (tetrahydro-

furan), are toxic

and should only be

handled in an

appropriate fume

hood and according

to instructions

given in the MSDS

Employers

working with

cadmium

29 C.F.R. "

§ 1926.1127

Prior to the per-

formance of any

construction work

where employees

Affected Party

Federal Citation

Federal Mandate

may be potentially

exposed to cad-

mium, the em-

ployer shall

establish the

applicability of this

standard by de-

termining whether

cadmium is pre-

sent in the work-

place and whether

there is the possi-

bility that em-

ployee exposures

will be at or abové

the action level.

Investigation shall

include a review of

relevant plans,

past reports,

MSDS and other

available records,

and consultations

with the property

owner and discus-

sions with appro-

priate individuals

and agencies

OSHA

requirements

29 C.F.R. § 1960.34

Agencies... and

suppliers... shall

establish and

maintain a product

safety program

which . . . Includes

preparation of

FEDSTD 313,

Affected Party

Federal Citation

Federal Mandate

MSDS, involving

all interested

agencies in review

to keep the stan-

dard current.

MSDS provided by

agencies or con-

tractors shall meet

the requirements

of FEDSTD 313

and be furnished

to DOD for filing

and distribution.

Creators of

HazCom

program

30 C.F.R. § 47.32

The HazCom

program must

include the follow-

ing ... MSDSs.

Mine Safety

and Health

Administration,

Department

of Labor

30 C.F.R. § 47.51

Operators must

have an MSDS for

each hazardous

chemical which

they produce or

use.

TMine Safety

and Health

Administration,

Department

of Labor

30 C.F.R. § 47.73

For a hazardous

chemical produced

at the mine, the

operator must

provide customers,

upon request,

with the chemical’s

label or a copy of

the label informa-

tion, and the

chemical’s MSDS.

G10

Affected Party | Federal Citation | Federal Mandate

Manufacturers |7C.F.R. § 1755.900/| For initial accep-

of Filled Fiber tance, the manu-

Optic Cables facturer must

submit ... OSHA

MSDS for all

components.

Manufacturers of|C.F.R. § 1755.910 |For initial accep-

Outside Plant tance the manufac-

Housings and turer shall...

Serving Area Provide OSHA

Interface (SAI) MSDS for the

Systems product

Manufacturers |16C.F.R. Where appropri-

of Products § 1500.14 ate, more detailed

requiring special information that

labeling relates to chronic _

hazard(s), such as

physical proper-

ties, decomposition

products, detailed

safety instructions,

or disposal recom-

mendations, shall

be included in

supplemental

documents, such

as Material Safety

~|Data Sheets,

technical bro-

chures, technical

data sheets etc.

Manufacturers [21 C.FR. To assure the safe

of products § 573.685 use of the additive,

containing the label or labelin

G11

Affected Party

Federal Cits*ion

Federal Mandate

Natamycin

of the additive shall

bear, in addition to

other information

required by the

Federal Food, Drug,

and Cosmetic Act,

the following ...A

contact address and

telephone number

for reporting ad-

verse reactions

experienced by

users, or to request

a copy of the MSDS

for natamycin.

Safety Managers

29 C.F.R.

§ 1910.119

The employer shall

complete a compila-

tion of written

process safety

information before

conducting any

process hazard

analysis required by

the standard. Note:

MSDS meeting the

requirements of 29

CFR 1910.1200(g)

may be used to

comply with this

requirement

Testers of Con-

centrated aque-

ous ammonium

hydroxide

29 C.F.R.

§ 1910.120, App. A

The person con-

ducting the test

shall review the

MSDS for aqueous

ammonia.

G12

Affected Party |Federal Citation | Federal Mandate

Analyzers 29 C.ER. Some of the sol-

of asbestos § 1915.1001, App. K| vents used, such as

THF (tetrahydro-

furan), are toxic

and should only be

handled in an

appropriate fume

hood and according

to instructions

given in the

MSDS.

One who deter-

mines hazards

29 C.F.R.

§ 1917.28, App. B

Adequacy and

reporting of data.

The results of any

studies which are

designed and

conducted accord-

ing to established

scientific princi-

ples, and which

report statistically

significant conclu-

sions regarding the

health effects of a

chemical, shall be

a sufficient basis

for a hazard de-

termination and

reported on any

MSDS.

Chemical 29 C.F.R. The following is a

manufacturer, § 1917.28, App. C /list of available

importer, data sources which

distributor, the chemical

or employer manufacturer,

G13

Affected Party

Federal Citation

Federal Mandate

importer, distribu-

tor, or employer

may wish to con-

sult to evaluate

the hazards of

chemicals they

produce or import

... Any informa-

tion obtained from

the supplier of the

chemical, such as

MSDS or product

safety bulletins.

First Aid Train-

ing Programs

29 C.F.R. Pt. 1918,

App. V

Trainees should be

instructed in the

acute effect of

chemicals utilized

in their plants, the

location of chemi-

cal inventories,

MSDS’s chemical

emergency infor-

mation, and anti-

dote supplies.

Process Safety

Management

~ 129 CER.

§ 1926.64, App. C

Complete and

accurate written

information con-

cerning process

chemicals, process

technology, and

process equipment

is... a necessary

resource to a

variety of users

including the team

G14

Affected Party

Federal Citation

Federal Mandate

that will perform

the process haz-

ards analysis...

Current MSDS

information can be

used to help meet

this requirement.

Employers

working with

Asbestos

29 C.FR.

§ 1926.1101, App. K

Some of the sol-

vents used, such as

THF (tetrahydro-

furan), are toxic

and should only be

handled in an

appropriate fume

hood and according

to instructions

given in the MSDS

Employers

working with

cadmium

29 C.F.R.

§ 1926.1127

Prior to the per-

formance of any

construction work

where employees

may be potentially

exposed to cad-

mium, the em-

ployer shall

establish the

aplicability of this

standard by de-

termining whether

cadmium is pre-

sent in the work-

place and whether

there is the possi-

bility that em-

ployee exposures

G15

Affected Party

Federal Citation

Federal Mandate

will be at or above

the action level.

Investigation shall

include a review of

relevant plans,

past reports,

MSDS and other

available records,

and consultations

with the property

owner and discus-

sions with appro-

priate individuals

and agencies

OSHA

requirements

29 C.F.R. § 1960.34

Agencies ... and

suppliers ... shall

establish and

maintain a product

safety program

which... Includes

preparation of

FEDSTD 313,

MSDS, involving

all interested

agencies in review

to keep the stan-

dard current.

MSDS provided by

agencies or con-

tractors shall meet

the requirements

of FEDSTD 313

and be furnished

to DOD for filing

and distribution.

G16

Affected Party |Federal Citation | Federal Mandate

Creators of 30 C.F.R. § 47.32 |The HazCom

HazCom program must

program include the follow-

ing ... MSDSs.

Mine Safety 30 C.F.R. § 47.51 |Operators must

and Health have an MSDS for

Administration, each hazardous

Department chemical which

of Labor they produce or

use.

Mine Safety 30 C.F.R. § 47.73 - | For a hazardous

and Health 7 chemical produced

Administration, at the mine, the

Department operator must

of Labor provide customers,

upon request, with

the chemical’s

label or a copy of

the label informa-

tion, and the

chemical’s MSDS.

Manufacturers |7C.F-R. § 1755.900| For initial accep-

of Filled Fiber tance, the manu-

Optic Cables facturer must

submit... OSHA

MSDS for all

components.

Manufacturers |C.F.R. § 1755.910 |For initial accep-

of Outside Plant tance the manufac-

Housings and turer shall...

Serving Area Provide OSHA

Interface (SAI) MSDS for the

Systems product

G17

Affected Party |Federal Citation |Federal Mandate

Manufacturers /|16C.F.R. § 1500.14|Where appropri-

of Products ate, more detailed

requiring special information that

labeling relates to chronic

hazard(s), such as

physical proper-

ties, decomposition

products, detailed

safety instructions,

or disposal recom-

mendations, shall

be included in

supplemental

documents, such

as Material Safety

Data Sheets,

technical bro-

chures, technical

data sheets etc.

Manufacturer of

Cleaning Solvent

40 C.F.R. § 63.750

Vapor pressure

determination. The

composite vapor

pressure of hand-

wipe cleaning

solvents used in a

cleaning operation

subject to this

subpart shall be

determined as

follows:

(1) For single-

component hand-

wipe cleaning

solvents, the vapor

ressure shall be

G18

Affected Party

Federal Citation

Federal Mandate

determined using

MSDS or other

manufacturer’s

data, standard

engineering refer-

ence texts, or

other equivalent

methods

Vendors to

Federal

Government

41 C.F R.

§ 101-42.202

Federal Acquisi-

tion Regulation

require that manu-

facturers identify

and document

potential hazards

on material safety

data sheets

(MSDS’s) as part

of the acquisition

process

Transporters

of hazardous

material for the

federal govern-

ment between

agencies

41 C.FR.

§ 101-42.207

Excess hazardous

materials may be

transferred among

Federal agencies

under § 101-

43.309-5, except

that the Standard

Form shall contain

a complete descrip-

tion of the actual

or potential hazard

associated with the

handling, storage,

or use of the item.

Such description

shall consist either

G19

Affected Party

Federal Citation

Federal Mandate

of a written narra-

tive, complying

with the require-

ments of 29 CFR

1910.1200, in block

13c or as an ad-

dendum, or an

MSDS.

Holding agencies

for Federal

Property that is

hazardous

41 C.F.R.

§ 101-42.302(a)

Holding agencies

shall be responsi-

ble for the identifi-

cation and

reporting of haz-

ardous materials

as set forth in

$§ 101- 42.202 and

101-42.203.

State Agencies

transferring

property with

the Federal

Government

41 C.F.R.

§ 101-42.302(b)

State agencies shall

prepare Standard

Form (SF) 123,

Transfer Order

Surplus Personal

Property, under

§ 101-44.4901-123-

1. A full description

of the actual or

potential hazard

associated with

handling, storage,

or use of the item

must be made

available by provid-

ing an MSDS.

Department

of Homeland

46 C.F.R.

A material safety

data sheet (MSDS)

G20

Affected Party

Federal Citation

Federal Mandate

Security employ-

ees that handle

Benzene

§ 197.565(a)

addressing ben-

zene must be made

available to all

persons involved in

the benzene opera-

tion.

Testers of vehicle

emissions

40 C.F.R.

§ 79.61(8)(i)

It is mandatory that

the upper explosive

limit (UEL) and

lower explosive

limit (LEL) for the

fuel and/or fuel

additive(s) that are

being tested be

determined. These

limits can be found

in the material

safety data sheets

(MSDS) for each

substance and in

various reference

texts.

Generators of

the EPS USFRS

XL Project

40 C.F.R.

§ 266.402(c)

USFRS will pro-

vide the person

with a copy of the

USFRS XL waste

MSDS, FPA and

training module

Debris treaters

for hazardous

debris

40 C.F.R. § 268.45

Debris treaters

should refer to the

safety precautions

specified in Mate-

rial Safety Data

Sheets

G21

Affected Party |Federal Citation |Federal Mandate

Any person 40 C.F.R. Any person may

submitting a § 370.30(a)(2) obtain an MSDS

written request with respect to a

under the EPA specific facility by

Community submitting-a-

right-to-know written request to

program the committee.

All personnel 40 C.F.R. Pt. 430, |A reference file of

involved inthe |App.A material safety

chemical analy- data sheets

sis of water and (MSDSs) should be

wastewater made available to

under Clean all personnel

Water Act; the involved in the

Resource Con- chemical analysis

servation and

Recovery Act; the

Comprehensive

Environmental

Response, Com-

pensation, and

Liability Act

All personnel 40 C.F.R. Pt. 435, |Areference file of

involved inthe |Subpt.A,App.5 |material safety

chemical analy- | data sheets

sis of NAF for (MSDSs) shall be

crude oil con- available to all

tamination personnel involved

in these analyses.

Those determin-

ing the concen-

tration of

Hazardous Air

Pollution

40 C.F.R.

§ 63.1292

The concentration

... be determined

using ... material

safety data sheets.

G22

Affected Party |Federal Citation |Federal Mandate

Chemists moni- |40C.F.R. Pt. 75, |Chemists should

toring vapor- App. K refer to the Mate-

phase mercury rial Safety Data

(Hg) emissions Sheet (MSDS) for

in combustion each chemical

flue gas streams, used.

using a sorbent

trap monitoring

system

All personnel on |33 C.F.R. Each deepwater

a deepwater port |§ 150.625 port must have a

hazard communi-

cation program

(HCP) available for

the training of,

and review by, all

personnel on the

deepwater port.

The program must

be in writing and

describe or include

... Amaterial

safety data sheet

(MSDS) for the

material.

Oil carriers 33 C.F.R. Appendices for

§ 155.1035(j)(10) | vessel-specific

information .. .

must include for

each vessel covered

by the plan the

following informa-

tion... Location of

information on the

name, description,

i mate ce

G23

Affected Party

Federal Citation

Federal Mandate

physical and

chemical charac-

teristics, health

and safety haz-

ards, and spill and

firefighting proce-

dures for the oil

cargo aboard the

vessel. A material

safety data sheet

meeting the re-

quirements of 29

CFR 1910.1200,

cargo information

required by 33

CFR 154.310, or

equivalent will

meet this require-

ment.

All facilities that

could reasonably

be expected to

cause significant

and substantial

harm to the

environment

33 C.F.R.

§ 154.1035

Appendices for the

response plan...

+must include for

each vessel covered

by the plan the

following informa-

tion . .. Location of

information on the

name, description,

physical and

chemical charac-

teristics, health

and safety haz-

ards, and spill and

firefighting proce-

dures for the oil

cargo aboard the

G24

Affected Party

Federal Citation

Federal Mandate

vessel. A material

safety data sheet

meeting the re-

quirements of 29

CFR 1910.1200,

cargo information

required by 33

CFR 154.310, or

equivalent will

meet this require-

ment.

veiteate

ees atthe

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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.