Petition for Writ of Certiorari — Kirstein v. Parks Corp.

Supresve Court, UL

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Nol GBR LAH JAN 27 WH

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Supreme Court of the United States

October Term, 1998

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GEORGE KIRSTEIN and JOY KIRSTEIN.

Petitioners,

PARKS CORPORATION,

Respondent

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

PAUL R. SHULDINER, ESQUIRI

Counsel of Record

Law Office of Paul R. Shuldiner

70 West Madison

Suite 3700

Chicago, Illinois 60602

(312) 372-8242

Attorney for Petitioners

Appellate Service: Curry & Taylor (800) 222-8738/Appellate@webtv.com

i

QUESTION PRESENTED

WHETHER, UNDER GENERAL ELECTRIC COMPANY

V. JOINER, IT IS AN ABUSE OF DISCRETION FOR A

DISTRICT COURT TO BAR AN EXPERT WITHOUT UN-

DERTAKING A DAUBERT HEARING.

ii

TABLE OF CONTENTS

Question Presented. 3.....ccisss 401159 eelsieeeeeeee i

Tabblo Of CORR. 5a oo ans 0c05 be cee so be eee il

Table of Authotities «2.5 iniauweoe ee ill

Opantons Below... sccssscaese0enesneeee yee 1

FUTIGGICTION oa cine ceckssedevwsuauene dena eee l

Statutes Ievelwed .o.6 6 osccveedensdhvavens ee eee l

Statessent of thee Case ..66653<5. nd ieeeeee 2

Reasons for Granting the Writ ..........sscessssececsess 4

I. THIS COURT SHOULD GRANT THE PETI-

TION FOR WRIT OF CERTIORARI TO CLAR-

IFY WHETHER OR NOT A DAUBERT

HEARING SHOULD BE HELD PRIOR TO DIS-

MISSAL OF AN EAPERE. .ctstisvs ues 4

Il. THE COURT OF APPEALS ERRED IN AF-

FIRMING THE DISTRICT COURT'S DECISION

TO EXCLUDE THE EXPERT UNDER

DAUBERT WHEN THE DISTRICT COURT

HAD AN INSUFFICIENT RECORD. .................. 8

CONCHMION 4.05: sc00sscees0uemesaesen eh eee 10

Appendix

Circuit Court Opinion ...¢<:insssnnsd eee la

District Court Opmmiomt. «60s 03+0000nenceenes ceene eee 10a

District Court Order Denying Reconsideration ........ 35a

ill

TABLE OF AUTHORITIES

Cases

Cortez Irizarry v. Corporacion Insular

De Seguros, 111 F.3d 184 (Ist Cir.

es see ei ke ee eeneeheeceeeedascaereccoececouees 8

Daubert v. Merrill Dow Pharmaceuti-

cals, Inc., 509 U.S.579, 113 S.Ct. 2786

ee casi necebeebdaeaeeteseeuesssteeeneese 4

General Electric v. Joiner, 118 S.Ct.

ces pekadkecabacenheaxidabagnet<es Y

In Re Paoli R.R. Yard PCB Litigation,

ED ns co cengnsecevenseveteees a

Kannankeril v. Terminix International,

Re Re eo) eee 9

O'Connor v. Commonweaith Edison

ee eee ee Se LE, POUED os cack cdecscavesontesess 6

Rules and Regulations

Federal Rule of Evidence 104 .....................46-- 1,6

Statutes

l

OPINIONS BELOW

The Opinion of the United States Court of Appeals for the

Seventh Circuit is set forth in Appendix at (la-9a). The deci-

sion of the United States District Court for the Northern Dis-

trict of Illinois is contained in Appendix at (10a-33a).

JURISDICTION

On October 28, 1997, the United States District Court for the

Northern District of Illinois granted summary judgment in fa-

vor of the defendants.

The petitioner appealed to the United States Court of Appeals

for the Seventh Circuit and on October 29, 1998, that court

affirmed the grant of summary judgment to the respondent.

This Court has jurisdiction to review this case under 28 U.S.

Code §1254.

STATUTES INVOLVED

Federal Rule of Evidence 104

(a) Questions of admissibility generally.

Preliminary questions concerning the qualification of a per-

son to be a witness, the existence of a privilege, or the admis-

sibility of evidence shall be determined by the court, subject

to the provisions of subdivision (b). In making its determina-

tion it is not bound by the rules of evidence except those with

respect to privileges.

lila aaa

2

(b) Relevancy conditioned on fact.

When the relevancy of evidence depends upon the fulfillment

of a condition of fact, the court shall admit it upon, or subject

to, the introduction of evidence sufficient to support a finding

of the fulfillment of the condition.

(c) Hearing of jury.

Hearings on the admissibility of confessions shall in all cases

be conducted out of the hearing of the jury. Hearings on other

preliminary matters shall be so conducted when the interests

of justice require, or when an accused is a witness and so

requests.

(d) Testimony by accused.

The accused does not, by testifying upon a preliminary mat-

ter, become subject to cross-examination as to other issues in

the case.

(e) Weight and credibility.

This rule does not limit the right of a party to introduce be-

fore the jury evidence relevant to weight or credibility.

STATEMENT OF THE CASE

George Kirstein was seriously burned while using chemical

products to remove linoleum at his home in Westmont, IIli-

nois. Thereafter, he and his wife brought a products liability

suit, seeking damages for his injuries, in an Illinois state

court. The Parks Corporation and W.M. Barr & Company re-

moved the case to federal court, where the district judge

3

granted summary judgment, dismissing both defendants, and

the Kirsteins appealed only as to Parks.

When Kirstein removed the linoleum from his kitchen, foyer,

hallway, and bathroom, he discovered that he also had to re-

move adhesive left underneath the linoleum on the floor. He

purchased an adhesive remover manufactured by Parks and

heeded the warnings on the container -- he provided adequate

ventilation and kept the product away from heat, sparks, and

flame in order to eliminate the risk that toxic gases would be

produced. He used the product without incident, but unfortu-

nately the adhesive remover left a residue. Checking the la-

bel on the product, he found that Parks recommended the use

of its lacquer thinner to clean up the adhesive remover resi-

due. He bought a lacquer thinner manufactured by Barr, a

product not different from the Parks product in any signifi-

cant way. He heeded the even stronger warnings on the lac-

quer thinner label, warnings about the danger of flash fires or |

explosions. He opened doors, turned down the hot water |

heater so it would not ignite, and set his air conditioner at 79 ;

degrees. 7

He used the product, proceeding from the kitchen, through

the foyer, into the bathroom, and down ihe hallway. When he

was in the hallway, he closed the door to the outside because

it blocked an area he needed to clean. Soon after he closed

the door, an explosion occurred. It was later determined that

the explosion originated in a furnace return grill located in the

foyer adjacent to a door leading to a garage. The ignition

source was the electric motor for the air conditioning unit.

As the fire spread over the floor, Kirstein started to slip. His

shoes were burned off and his feet were incinerated. He was

severely burned over 20 percent of his body, with the most

extensive burns on his hands and feet. The plaintiff's expert

a a ee ee

eS

4

gave the opinion that the mixture of the lacquer thinner and

adhesive remover increased the danger for the consumer.

The Kirsteins sued the manufacturers of the two products Mr.

Kirstein was using as well as the retailers from whom he

bought the products. The retailers were dismissed by agree-

ment. The suit proceeded -- now in federal court -- against

the manufacturers, both of whom moved for summary

judgment.

The District Court, had before it only the criticism of the de-

fendant's attorneys that Dr. Gary Nelson, the plaintiff's expert,

was not a chemist and could not give a chemical opinion as to

the cause of the ignition and/or the aggravation of injury by

the mixture. There were no expert opinions of record urging

a chemical analysis. Dr. Nelson himself denied that a chemi-

cal analysis was even necessary. The judge did not hold any

hearing on her exclusion of the expert.

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD GRANT THE PETITION

FOR WRIT OF CERTIORARI TO CLARIFY WHETHER

OR NOT A DAUBERT HEARING SHOULD BE HELD

PRIOR TO DISMISSAL OF AN EXPERT.

Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S.579,

113 S.Ct. 2786 (1993), grants the power to the District Court

to exclude plaintiff's expert evidence as part of its gatekeep-

ing function. In order to best insure relevant and reliable tes-

timony and exclude unsupported speculation, Daubert

establishes a two-prong test which requires a District Court,

before it may admit scientific testimony, to determine

whether the expert is proposing to testify to scientific

5

knowledge and whether that will assist the trier of fact to un-

derstand or determine the issue. Daubert suggests that the

Court utilize certain factors in determining whether a particu-

lar theory is reliable: (1) its empirical testability; (2) whether

the theory or study has been published or subject to peer re-

view; (3) whether the known or potential rate of error is ac-

ceptable; and (4) whether the method is generally accepted in

the scientific community. 509 U.S. @ 593, 595, 113 S.Ct. @

2796, 2798. In the instant case, the District Court made a

finding that the question of whether adhesive remover ab-

sorbs methylethylketone in lacquer thinner and gradually re-

leases the vapor is a question of science (Appendix at 19a).

Dr. Nelson stated that it was not necessary to have the mix-

ture chemically tested as the Material Safety Data Sheets on

the products gave sufficient information for a safety engineer

to formulate an opinion. The Court's conclusion, that his

opinion was a matter of science and needed testing to validate

his conclusions, was not supported by any evidence in the re-

cord. No expert had come forward on behalf of the defen-

dants stating that (1) Dr. Nelson's theory was incorrect; and

(2) testing was necessary to support the theory. Conse-

quently, the District Court granted the motion for summary

judgment and the plaintiffs appealed.

The U.S. Court of Appeals held that the District Court, while

acknowledging that Dr. Nelson had respectable credentials,

concluded that because he was not a chemist and the combi-

nation of these products required knowledge of chemistry, his

opinion failed the first part of the Daubert test. (Appendix p.

4a) The petitioners argued they were entitled to a hearing on

the admissibility of the expert opinion pursuant to Jn Re Paoli

R.R. Yard PCB Litigation, 916 F.2d 829 (3d Cir. 1990) (Paoli

J). The 7th Circuit rejected that assertion stating that a

Daubert inquiry need not take any specific form and, in fact,

gohan, His htast IBD

PONT Ce a eee

6

within that circuit a sua sponte consideration of the admissi-

bility of expert testimony is appropriate. O'Connor v. Com-

monwealth Edison Co., 13 F.3d 1090 (7th Cir. 1994). (App.

4a)

In Paoli 1, the district court did not hold an in limine hearing

and found summary judgment in favor of the defendants

based on the inadequacy of plaintiff's experts in a toxic tort

case. The plaintiffs did not request an in limine hearing and

actually opposed it. 916 F. 2d 854. The appellate court held

that,

Closely related to the question whether the

district court conducted an appropriate and

adequate factual inquiry, is the question

whether the court provided the plaintiffs with

sufficient process for defending their eviden-

tiary submissions. The adversarial process

upon which our legal system is based, assumes

that a fact finder will give the parties an ade-

quate opportunity to be heard. If it does not, it

cannot find facts reliably. Thus the detailed

factual record requirement, firmly entrenched

in Our jurisprudence requires adequate process

at the evidentiary stage, particularly when a

summary judgment may flow from it. The dis-

trict court did not afford that process here.

Id.

The concept of a Paoli hearing is not new and is contem-

plated by Federal Rule of Evidence 104. This rule requires

that preliminary questions concerning the qualification of a

person to be a witness or the admissibility of evidence shall

7

be determined by the court. Rule 104(c) states that, "hearings

on other preliminary matters shall be so conducted when the

interest of justice require." It is clear that Rule 104 was

drafted with the intent to be a trial rule but it applies to pre-

trial proceedings. /n Re Paoli R.R. Yard PCB Litigation, 35

F.3d 717, 739 (3d Cir. 1994) (Paoli 2). The important result

of a Paoli hearing is that it requires the opposing party to

clearly state its attack on the expert's qualifications when the

proponent of the expert testimony can actually do something

about it.

In the instant case, the defendants produced no evidence

whatsoever to support their assertions that (1) Dr. Nelson's

testimony was scientific, (2) that testing was required, and (3)

that his opinion was deficient without testing. The District

Court adopted the defendant's argument without requiring any

proof under Daubert. The national importance of requiring

Daubert hearings will be that the proponent of expert evi-

dence will not be surprised by an opponent's attack on the ex-

pert as the attack vill be in the nature of a presentation of

evidence with proper procedure. Not only will the proponent

of the evidence be placed on notice as to claimed defects, but

what amounts to a case dispositive question will be fully ad-

dressed by the court. A hearing also will enable the courts to

assess the foundations for the expert's opinions. Very often

these foundations are lacking because they are provided to the

court in the form of an expert disclosure. When the summary

judgment procedure is used, the expert disclosure is fre-

quently inadequate to resist summary judgment. The sugges-

tion that perhaps expert disclosures should be lengthier and in

greater detail will be extraordinarily burdensome and expen-

sive to litigants as all of the Daubert factors would have to be

disclosed in detail and at length, including exhibits putting

forth the results of all tests and copies of the learned treatises

8

that the experts have used to come to their opinions. It would

be an impermissible burden on proponents of experts to be

required to do this even when the expert is not under

challenge.

I. THE COURT OF APPEALS ERRED IN AFFIRM-

ING THE DISTRICT COURT'S DECISION TO EXCLUDE

THE EXPERT UNDER DAUBERT WHEN THE DISTRICT

COURT HAD AN INSUFFICIENT RECORD.

In the instant case, the district court had no evidence before it

that testing was required to prove that the combination of the

products used was more dangerous. In fact, she had Dr. Nel-

son's testimony that it was not required. {his points to an

abuse of discretion.

In Cortez Irizarry v. Corporacion Insular De Seguros, 111

F.3d 184 (Ist Cir. 1997), the U.S. Court of Appeals for the Ist

Circuit cautioned the use of Daubert analysis in connection

with summary judgment motions.

"The fact that Daubert can be used in connec-

tion with summary judgment motions does not

mean that it should be used profligately. A

trial setting normally will provide the best op-

erating environment for the triage which

Daubert demands. Voir dire is an extremely

helpful device in evaluating proffered expert

testimony, see Sepulveda, 15 F.3d at 1184 n.

15, and this device is not readily available in

the course of summary judgment proceedings.

Moreover, given the complex factual inquiry

required by Daubert, courts will be hard-

pressed in all but the most clear-cut cases to

9

gauge the reliability of expert proof on a trun-

cated record. Because the summary judgment

process does not conform well to the disci-

pline that Daubert imposes, the Daubert re-

gime should be employed only with great care

and circumspection at the summary judgment

stage.”

Id. at p.188

General Electric v. Joiner, _ U.S. _, 118 S.Ct. 512, 517

(1997) provides that the abuse of discretion standard should

be used by the courts in reviewing district court determina-

tions under Daubert. In Kannankeril v. Terminix Interna-

tional, Inc., 128 F.3d 802 (3d Cir. 1997), the court found an

abuse of discretion in the district court ruling that an expert

may rely only on a certain type of test to determine whether

an individual had been exposed to a chemical. The court

noted that there was no expert opinion in the record to estab-

lish that an ambient air tcst is the only-appropriate way to

gauge exposure to the compound. /d. at 808. The court

noted that the trial court must not mistake credibility ques-

tions for admissibility questions. /d.

This is precisely the situation that faced the District Court in

the instant case. Here, the District Court ruled that only a

chemical test of the compound would be admissible. All

other determinations of the compounds’ effect on the plaintiff

were unscientific. The District Court, in the instant case,

mistook questions of credibility for questions of admissibil-

ity, thereby abusing its discretion. This is especially true

when it is noted that there is nothing in the record to suggest

that a chemical test had to be undertaken to render the opin-

ion that the expert did. The state of the record required for a

10

court to perform its gatekeeping function should be estab-

lished by this Court to provide consistency in the administra-

tion of justice.

CONCLUSION

For the foregoing reasons, the petitioners respectfully request

that the decision of the Seventh Circuit be reversed.

Respectfully submitted,

LAW OFFICES OF PAUL R.

SHULDINER

By:

PAUL R. SHULDINER

70 West Madison, Suite 3700

Chicago, Illinois 60602

(312) 372-8242

Attorneys for Petitioners

Dated: January 20, 1999

159 F.3d 1065

No. 97-4257

UNITED STATES COURT OF APPEALS FOR THE SEV-

ENTH CIRCUIT

GEORGE KIRSTEIN and JOY KIRSTEIN , Plaintiffs-

Appellants, V. PARKS CORPORATION,

Defendant-Appellee.

September 25, 1998, Argued

October 29, 1998, Decided

JUDGES: Before FLAUM, MANION, and EVANS, Circuit

Judges.

OPINION BY: EVANS

OPINION: EVANS, Circuit Judge. The kind of thing that all

do-it-your-selfers assume will not happen to them happened

to George Kirstein. He was seriously burned while using

chemical products to remove linoleum at his home in West-

mont, Illinois. Thereafter, he and his wife brought this prod-

ucts liability suit, seeking damages for his injuries, in an

Illinois state court. The Parks Corporation and W.M. Barr &

Company removed the case to federal court, where the dis-

trict judge granted summary judgment, dismissing both de-

fendants, and the Kirsteins appeal only as to Parks.

2a

When Kirstein removed the linoleum from his kitchen, foyer,

hallway, and bathroom, he discovered that he also had to re-

move adhesive left underneath the linoleum on the floor. He

purchased an adhesive remover manufactured by Parks and

heeded the warnings on the container--he provided adequate

ventilation and kept the product away from heat, sparks, and

flame in order to eliminate the risk that toxic gases would be

produced. He used the product without incident, but unfortu-

nately the adhesive remover left a residue. Checking the label

on the product, he found that Parks recommended the use of

its lacquer thinner to clean up the adhesive remover residue.

He bought a lacquer thinner manufactured by Barr, a product

not different from the Parks product in any significant way.

He heeded the even stronger warnings on the lacquer thinner

label, warnings about the danger of flash fires or explosions.

He opened doors, turned down the hot water heater so it

would not ignite, and set his air conditioner at 79 degrees.

He used the product, proceeding from the kitchen, through

the foyer, into the bathroom, and down the hallway. When he

was in the hallway, he closed the door to the outside because

it blocked an area he needed to clean. Soon after he closed

the door, an explosion occurred. It was later determined that

the explosion originated in a furnace return grill located in the

foyer adjacent to a door leading to a garage. The ignition

source was the electric motor for the air conditioning unit. As

the fire spread over the floor, Kirstein started to slip. His

shoes were burned off and his feet were incinerated. He was

severely burned over 20 percent of his body, with the most

extensive burns on his hands and feet.

The Kirsteins sued the manufacturers of the two products Mr.

Kirstein was using as well as the retailers from whom he

bought the products. The retailers were dismissed by

ah en ni a

;

$

;

4

3

i

3a

agreement. The suit proceeded--now in federal court--against

the manufacturers, both of whom moved for summary judg-

ment. The motions were granted in one of the orders we now

review. The others are an order denying a request to present a

second expert opinion and an order denying reconsideration

of the summary judgment decision.

The Kirsteins have a difficult case to make on the merits. The

lacquer thinner is almost certainly what caused the explosion,

but its container contains warnings which comply with the

Federal Hazardous Substances Act, 15 U.S.C. § 1261, and

this preempts the claim against Barr. That's why, it seems, the

Suit against Barr is not being pursued on appeal. What the

Kirsteins claim is that the Parks adhesive remover, while per-

haps safe in itself, includes an instruction which renders the

product unsafe. That instruction is that for cleanup of the resi-

due of adhesive remover, one should use lacquer thinner. No

warning on the adhesive remover container states that use of

lacquer thinner is hazardous.

In what has been a rather protean theory, the Kirsteins con-

tend that the combination of the products caused the severity

of Kirstein's burns. We will have more to say about the

changing nature of the theory later, but for now we need only

say that the case was heavily dependent on the opinion of the

Kirsteins' expert, Dr. Gary Nelson, regarding the combination

of the products. Both defendants moved for summary judg-

ment, in which the admissibility of Dr. Nelson's opinion be-

came a significant issue. Ultimately, his opinion testimony

was excluded under Daubert v. Merrell Dow Pharmaceuti-

cals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786

(1993), and its exclusion became the underpinning of the de-

cision granting summary judgment. Just prior to the ruling on

summary judgment, the Kirsteins requested leave to present

4a

an opinion from a second expert. That request was denied as

was a later motion to reconsider.

We review summary judgment de novo. Porter v. Whitehall

Laboratories, Inc., 9 F.3d 607 (7th Cir. 1993). However, the

Daubert issue is reviewed for an abuse of discretion, General

Electric v. Joiner, 139 L. Ed. 2d 508, 118 S. Ct. 512 (1997).

The district judge carefully analyzed the Daubert issue by em-

ploying the two-step inquiry for evaluating expert testimony

under Rule 702. First, she looked to see if the expert's testi-

mony is reliable; and, if so, whether it would assist the trier of

fact. Cummins v. Lyle Industries, 93 F.3d 362 (7th Cir.

1996). She acknowledged that Dr. Nelson had respectable

credentials, but she nevertheless concluded that because he

was not a chemist (and, in her view, the combination of these

products required knowledge of chemistry) and did no test-

ing, his opinion failed the first part of the Daubert test. Based

on Rosen v. Ciba-Geigy Corp., 78 F.3d 316 (7th Cir. 1996),

her conclusion was that she was confronted with "unscientific

speculation offered by a genuine scientist."

As a preliminary matter, the Kirsteins claim they were enti-

tled to a hearing on the admissibility of the expert opinion

pursuant to In Re Paoli R.R. Yard PCB Litigation, 916 F.2d

829 (3rd Cir. 1990). We are convinced, however, that the dis-

trict court had a sufficient basis for her decision without hold-

ing a hearing. We have not required that the Daubert inquiry

take any specific form and have, in fact, upheld a judge's sua

sponte consideration of the admissibility of expert testimony.

O'Conner v. Commonwealth Edison Co., 13 F.3d 1090 (7th

Cir. 1994).

Sa

Furthermore, we see no abuse of discretion in the exclusion

of the expert. It is true that Dr. Nelson has impressive creden-

tials. He is a safety engineer. His educational background is

in industrial and product safety. He has a Ph.D. from Texas

A&M University. He was vice president of the Texas Safety

Association and is a member of the National Fire Protection

Association. But the fact is that he did no testing on these

products, either alone or in combination. Neither did he pro-

vide studies which employed such testing. In short, Dr. Nel-

son offered only speculation. And we have sanctioned the

exclusion of speculation offered by persons with credentials

as impressive as those of Dr. Nelson. In Rosen, for instance,

the expert whose exclusion we upheld was a "distinguished

cardiologist and department head at the University of Chi-

cago." 78 F.3d at 318.

The fact that Dr. Nelson did no testing may account as well

for what we have referred to as the protean nature of the the-

ory of what happened here. The amended complaint says

Kirstein "read and carefully followed the labels on the prod-

ucts to the best of his ability when suddenly the products and

the combination of them exploded, Causing serious injury."

But the initial report of Dr. Nelson, which dealt primarily

with the inadequacy of the warnings on the products, did not

clearly mention any increased danger from the combination

of the products. The closest he came is a statement that "Barr

and Parks apparently failed to reasonably and properly fore-

See the circumstances (or readily conceivable similar circum-

Stances) that resulted in Mr. Kirstein's injury." We find the

theory of an increased danger from the combination of the

products in Dr. Nelson's deposition. At the time of the depo-

sition the theory seemed to be that lacquer thinner (methy!

ethyl ketone, or MEK) by itself would flash but not continue

6a

to burn. But if it is mixed with something else, such as cloth

or adhesive remover, it will continue to burn:

Answer by Dr. Nelson: If we have vapor in

this room, and we walk in, and there's a flash,

we're going to get our eyebrows singed, our

hair singed, and we're going to get some burns.

If | take MEK and I mix it with something,

and | spread this stuff on your skin, and that

flash ignites the MEK within that substance,

and it's continually giving off vapor from it, it

will continue to burn. If it's in your clothing,

clothing will continue to burn. If it's in your

shoes and on your shoes and on your feet, it

will continue to burn, and if it's mixed within

a gooey substance, that gooey substance will

continue to burn. We're no longer now talking

about just a flash and the fire is gone. We're

talking about a continually burning substance,

and if you look at the [photographs], this is ex-

actly what happened.

In the initial brief to this court the theory as to the combina-

tion of the products is stated as follows:

From a danger point of view, mixing the two

products creates an enhanced danger. . . . Pho-

tographs of the burn disclose that the mixture

stuck to the skin and ignited, and continued to

burn. . . . If you pour MEK on adhesive re-

mover and mix it up and scrape it off, and it

gets on your hands and clothing, then you are

going to have MEK mixed in with the adhe-

sive remover. . . . If you pour MEK onto a

7a

permeable surface, the MEK will continue to

burn after the initial flash.

But in the reply brief the plaintiffs explain their theory this

way:

At no time did the plaintiff argue that the lac-

quer thinner became more flammable or

changed its propensities. Plaintiff had always

argued instead that the adhesive remover be-

came more flammable and created a dangerous

condition by using the lacquer thinner.

It seems to us that experimentation on the products in combi-

nation might have helped to pin down exactly what it is that

happened--did the adhesive remover itself become more

flammable when it was mixed with the lacquer thinner? was

it the adhesive remover that burned? or did the lacquer thin-

ner burn longer and more dangerously when it was mixed

with adhesive remover? What we have is indeed "unscientific

speculation."

When they were confronted with the possible loss of their ex-

pert, or at least when it became clear that the admissibility of

his testimony was under serious attack, the Kirsteins at-

tempted to submit the testimony of a second expert, who had,

in fact, performed tests on the products. The district judge re-

fused to allow the submission of his report. The plaintiffs

contend that this decision also was an abuse of discretion

The Kirsteins say they were not given a chance to respond to

Parks’ attack on Dr. Nelson because the attack came in reply

briefs on the motion for summary judgment. We disagree.

The issue of the competence of the expert was clearly raised

8a

in the original briefs. But it is also true that the reply briefs

contained a more concerted attack on the expert than did the

original briefs. The way the issue was presented comes close

to sandbagging. But on the facts of this case, we see no abuse

of discretion in the way the judge resolved the issue.

First of all, the fact that Dr. Nelson's theory, whatever it was,

should have been submitted to testing seems elementary. It

would seem, in fact, that testing might have pinned down

which product became more dangerous by being mixed with

the other--which product was burning. Secondly, it is not so

simple a matter to allow the second report. Discovery was

closed; all deadlines were final. The report of the second ex-

pert is not self-explanatory; it raises more questions than it

answers. If the report were allowed, Parks would no doubt

want to depose the second expert and perhaps obtain more

expert testimony of its own. The admission of the report, in

other words, would cause significant delay, or so the district

judge could reasonably believe.

The report we are talking about is from Shelby Parchman,

who performed tests apparently checking for BTU's on six

different samples: 100% adhesive remover; 5% thinner/95%

remover; 25% thinner/75% remover; 50% each; 75%

thinner/25% remover; and 95% thinner/5% remover. Our

view of the unexplained results is that the BTU's (that is, the

measurement of heat capacity) increased as more lacquer

thinner was added to the mixture. What, if anything, does that

tell us about the cause of Kirstein's burns? Furthermore, the

product tested by itself is the adhesive remover; there is no

test of 100% lacquer thinner. Would the lacquer thinner by

itself have greater or less heat capacity than a combination of

the products? In short, would the Parchman report be--or, in

fact, has it been--the foundation for yet another theory as to

9a

just how the products become more dangerous when used to-

gether? The district judge, we think, was well within her dis-

cretion not to allow the late addition of another expert to the

case. And she was also well within her discretion not to re-

consider her rulings.

The Kirsteins put forth a number of other reasons why they

should survive summary judgment regardless of whether they

have an expert. We reject those reasons. No matter which

form it takes, their claim against Parks depends on the combi-

nation of the Parks' adhesive remover with lacquer thinner. If

there is no evidence of how the products operate in combina-

tion, there can be no claim. There is no claim that it was the

adhesive remover which exploded; there is no claim that the

adhesive remover is more dangerous, by itself, than the ordi-

nary consumer would contemplate. There is no competent

evidence as to what, if any, contribution the adhesive remover

made to the explosion and the resulting burns. Because Barr

has been dismissed, there can be no claim based solely on a

lacquer thinner explosion. Furthermore, the lacquer thinner

is, in fact, explosive; this is what the warnings on the con-

tainer are about. And because there is no evidence that what

happened would not have happened in the absence of adhe-

sive remover, Parks cannot be held responsible under a res

ipsa loquitur theory. For all of these reasons, the judgment of

the district court is

AFFIRMED.

10a

983 F. Supp. 753

GEORGE KIRSTEIN and JOY KIRSTEIN, Plaintiffs, vs.

W.M. BARR & COMPANY, INC. and PARKS CORPORA-

TION, Defendants.

No. 97 C 0002

UNITED STATES DISTRICT COURT FOR THE NORTH-

ERN DISTRICT OF ILLINOIS, EASTERN DIVISION

October 28, 1997, Decided

October 31, 1997, Docketed

COUNSEL: For GEORGE KIRSTEIN, plaintiff: Paul R.

Schuldiner, Attorney, Chicago, IL.

For W.M. BARR & COMPANY, INC., PARK CORPORA-

TION, THE, defendants: Jeffrey Adam Brauer, Williams &

Montgomery, Chicago, IL.

For PARK CORPORATION, THE, defendant: Daniel John

Donnelly, Michael James Mullen, Kralovec & Marquard,

Chartered, Chicago, IL.

For W.M. BARR & COMPANY INC., PARK CORPORA-

TION, THE, cross-claimants: Jeffrey Adam Brauer, Williams

& Montgomery, Chicago, IL.

lla

For PARK CORPORATION, THE, W.M. BARR & COM-

PANY INC., cross-defendants: Jeffrey Adam Brauer, Wil-

liams & Montgomery, Chicago, IL.

For PARK CORPORATION, THE, cross-defendant: Daniel

John Donnelly, Michael James Mullen, Kralovec & Mar-

quard, Chartered, Chicago, IL.

For PARK CORPORATION, THE, cross-claimant: Daniel

John Donnelly, Michael James Mullen, Kralovec & Mar-

quard, Chartered, Chicago, IL.

JUDGES: Suzanne B. Conlon, United States District Judge.

OPINIONBY: Suzanne B. Conlon

OPINION: MEMORANDUM OPINION AND ORDER

George Kirstein ("Kirstein") and his wife Joy Kirstein

("Joy") (collectively "plaintiffs") sue W.M. Barr & Company,

Inc. ("Barr") and Parks Corporation ("Parks") (collectively

"defendants"). Counts I and II are products liability claims

brought by Kirstein. Count III is a claim for loss of consor-

tium brought by Joy. In Count IV, Joy claims she is entitled

to reimbursement for Kirstein's medical expenses under the

Family Expense Act. The defendants have filed separate mo-

tions for summary judgment pursuant to Fed. R. Civ. P. 56.

BACKGROUND

Plaintiffs are residents of Westmont, Illinois. Barr is a Ten-

nessee corporation with its principal place of business in Ten-

nessee; Parks is a Massachusetts corporation with its

principal place of business in Massachusetts. As complete

12a

diversity exists and the amount in controversy exceeds $

75,000, this court has jurisdiction pursuant to 28 U.S.C. §

1332.

When Kirstein purchased his house, the kitchen, foyer, hall-

way and bath areas had linoleum flooring. Kirstein decided to

replace the linoleum flooring with parquet wood flooring.

Kirstein pulled the linoleum off the floor. Defendants’ 12(M)

Statement of Undisputed Material Facts ("Defs. 12(M)") P

18. Kirstein knew that before laying down the parquet floor

tiles, he needed to remove the mastic glue material that re-

mained on the floor; he realized he needed an adhesive re-

mover for this task. Id. On August 16, 1994, Kirstein

purchased two gallons of Parks Adhesive Remover, a product

manufactured by defendant Parks. Id. P 19. Kirstein read the

instructions on the label of the adhesive remover. Id. P 20.

The next morning, Kirstein coated the kitchen area with adhe-

sive remover and scooped up what was left behind with a

shovel. Kirstein then did the same in the foyer, hallway, and

bathroom. Id. P 21. After using the shovel, Kirstein found

there was still a residual gelatinous substance on the floor. Id.

P 22. He remembered that the adhesive remover instructions

stated, "For best results, wash stripped surface with Parks

Lacquer Thinner before applying new adhesive." Id.

Kirstein went to a store to purchase lacquer thinner. He

bought one gallon of Klean-Strip Lacquer Thinner, a product

manufactured by defendant Barr. Id. P 23. Prior to using the

lacquer thinner, Kirstein read the instructions, warnings, and

labels on the lacquer thinner can. Id. The warning label on

the lacquer thinner's main display panel states "EX-

TREMELY FLAMMABLE" and instructs the user to read

other cautions on the back panel. Barr Ex. H. The back panel

includes the following cautionary language:

l3a

DANGER! EXTREMELY FLAMMABLE. KEEP

AWAY FROM HEAT, SPARKS, FLAME AND

ALL OTHER SOURCES OF IGNITION. VAPORS

MAY CAUSE FLASH FIRE OR IGNITE EXPLO-

SIVELY. Do not smoke. Extinguish all flames and pi-

lot lights, and turn off stoves, heaters, electric motors

and all other sources of ignition during use and until

all vapors are gone. Beware of static electricity that

may be generated by synthetic clothing and other

sources.

Whenever possible, use outdoors in an open area. Do not use

in areas where vapors can accumulate and concentrate such as

basements, bathrooms or small enclosed areas. USE ONLY

WITH ADEQUATE VENTILATION TO PREVENT

BUILD-UP OF VAPORS. Open all windows and doors. Use

only with a cross-ventilation of moving fresh air across the

work area. If strong odor is noticed or you experience light

dizziness, headache, nausea or eye watering - STOP - ventila-

tion is inadequate. Leave area immediately.

Sa Vidi hucalnir be ec enebse “dois aes

Barr Ex. H. The Parks Adhesive Remover label contains the

following warning:

Contact with flame or hot surface may pro-

. duce toxic gases) KEEP AWAY FROM

HEAT, SPARKS, AND FLAME. DO NOT

SMOKE. Extinguish all flames and_ pilot

lights, and turn off stoves, heaters, electric

motors, and other sources of ignition during

use and until all vapors are gone. USE ONLY

WITH ADEQUATE VENTILATION. To

avoid breathing vapors or spray mist, open

windows and doors or use other means to

l4a

ensure fresh air entry during application and

drying.

Barr Ex. G.

In preparation for use of the lacquer thinner, Kirstein opened

the sliding door on the south side of his house (opposite of

the side where he was working), opened his front door, turned

off the furnace pilot and the fireplace pilot, and turned down

the water temperature of the hot water heater. Defs. 12(M) PP

26, 28; Pl. 12(N) P 3. Kirstein turned on the motorized elec-

tric exhaust fan in the downstairs bathroom. Defs. 12(M) P

27. Kirstein knew that his air conditioner was powered by

electricity, and was aware of a switch on his furnace that de-

activates the blower motor in the air conditioning unit. Id. P

29. He did not deactivate the blower motor. Id. Kirstein testi-

fied that he used a rag on a scraper to apply lacquer thinner

and to wipe the surface of the floor. Defs. 12(M) P 30; PI.

12(N) P 4. Kirstein completed the kitchen and then proceeded

to the bathroom, the hallway, and the foyer, working his way

backwards towards the front door. Defs. 12(M) P 30. To fin-

ish the hallway, Kirstein needed to close the front door. Id. P

31. Moments after he closed the front door, the hallway was

in flames. Id. Kirstein suffered burns over 20% of his body,

with slightly over one-third of those burns on his feet. Pl. Ex.

A. Kirstein had full thickness burns on the dorsal and wide

surfaces of both feet. Pl. Ex. A.

DISCUSSION

I. DR. NELSON'S TESTIMONY and FRE 702

Many assertions in the plaintiffs’ 12(N) statement are sup-

ported only by the deposition testimony of Dr. Gary Nelson, a

te Vad Aue

GAG et Hotness cite HO

Nel 2at Eras

Peden eine irbatid sass aie

_ ae

15a

safety engineer whose expert testimony plaintiffs proffer. Dr.

Nelson is prepared to testify as follows: The risks of using the

defendants’ products were enhanced by the direction to use

lacquer thinner after using the adhesive remover. Pl. 12(N) P

11. Another brand of adhesive remover advises the use of

mineral spirits instead of lacquer thinner; mineral spirits are

less hazardous than lacquer thinner. Id. PP 22 - 23. Methyl

ethyl ketone ("MEK"), the active ingredient in lacquer thin-

ner, is absorbed by permeable objects. Id. P 18. When the

products are used together, the "gooey substance thus cre-

ated" will continue to burn after the MEK "flashes out." Id. P

16. The product labels do not explain that vapor can travel

and create an explosive condition outside the area of use. Id.

P 19. The lacquer thinner individually, and the lacquer thin-

ner and adhesive remover combined, create a hazardous con-

dition that is beyond the understanding of the homeowner. Id.

P 17. Dr. Nelson further explains:

If we have vapor in this room and we walk in

and there's a flash, we're going to get our eye-

brows singed, our hair singed, and we're going

to get some burns. If I take MEK (the active

ingredient in lacquer thinner), and I mix it

with something and I spread this stuff on your

skin, and that flash ignites the MEK within the

substance, and it's continually giving off vapor

from it, it will continue to burn....if it's mixed

with a gooey substance, that gooey substance

will continue to burn. We're no longer now

talking about just a flash and the fire is gone.

We're talking about a continually burning

substance...

Pl. Ex. D at pp. 164

l6a

Defendants challenge the admissibility of Dr. Nelson's state-

ments pursuant to Federal Rule of Evidence 702, which

provides:

If scientific, technical, or other specialized

knowledge will assist the trier of fact to under-

stand the evidence or to determine a fact in is-

sue, a witness qualified as an expert by

knowledge, skill, experience, training, or edu-

cation, may testify thereto in the form of an

opinion or otherwise.

Fed. R. Evid. 702. This rule "clearly contemplates some de-

gree of regulation of the subjects and theories about which an

expert may testify." Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 589, 125 L. Ed. 2d 469, 113 S. Ct. 2786

(1993). Seventh Circuit cases interpreting Daubert have sug-

gested a two-step inquiry for evaluating expert testimony un-

der Rule 702. First, the court must determine whether the

expert's testimony is reliable. Second, the court must deter-

mine whether the testimony will assist the trier of fact. Cum-

mins v. Lyle Industries, 93 F.3d 362, 367-68 (7th Cir. 1996).

"In the context of theoretical and applied science, [the first]

requirement places on the court the obligation to ensure that

the proffered testimony pertains to scientific knowledge." Id.

(citing Deimer v. Cincinnati Sub-Zero Prods., Inc., 58 F.3d

341, 344 (7th Cir. 1994); Porter v. Whitehall Labs., 9 F.3d

607, 614 (7th Cir. 1993)). An expert scientific opinion must

be grounded in the "methods and procedures of science," and

must consist of more than "subjective belief or unsupported

speculation." Daubert, 509 U.S. at 589. Put another way, "a

district court asked to admit scientific evidence must deter-

mine whether the evidence is genuinely scientific, as distinct

17a

from being unsciertific speculation offered by a genuine sci-

entist." Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th

Cir. 1996). In Cummins, the plaintiff argued the application

of well-known instruments of the engineering profession to a

particular and "not-out-of-the-ordinary" application required

substantial deviation from the paradigm announced by the

Supreme Court in Daubert. The Seventh Circuit rejected that

argument, stating:

The Supreme Court did acknowledge in

Daubert that, because the case presented a

matter of scientific inquiry, its discussion was

limited to the "scientific context." (citation

omitted). The court also noted, just as point-

edly, that its holding was not limited to cases

involving "novel" scientific theories. [Daubert,

509 U.S. at 592 n. 11]. As the case law of this

circuit amply demonstrates, we believe that

this latter remark in Daubert counsels against a

wholesale abandonment of the Daubert analy-

sis simply because the issue before the court,

although rooted in science, involves the appli-

cation of science to a concrete and practical

problem. See, e.g., Buckner v. Sam's Club,

Inc., 75 F.3d 290, 292-94 (7th Cir. 1996)

(safety management expert); Deimer v. Cin-

cinnati Sub-Zero Prods. Inc., 58 F.3d 341 (7th

Cir. 1995) (testimony concerning cord wrap

on hospital equipment). Indeed, the drafters of

Rule 702 seem to have acknowledged that the

line between "scientific" and "technical" is not

a bright one.

Cummins, 93 F.3d at 367 n. 2.

18a

Dr. Nelson admits he is not a chemist; he is a safety engineer

with an educational background in industrial and product

safety. His graduate coursework included a course on fire

protection and prevention. Pl. Ex. D. In the last 10 to 25

years, Dr. Nelson has not done any lab work in the fire pro-

tection area. Id. at pp. 19, 32. Dr. Nelson contends he did not

have the products in this case or their mixture chemically

tested because

it wasn't necessary...the analysis that I per-

formed was a review of the chemical proper-

ties based on the material safety data sheets

from the point of view of what an industrial

hygienist or safety engineer would normally

do in relation to those sheets. In other words, I

relied on the information provided by Parks

and [Barr] rather than doing any of it myself.

Id. at p. 21.

Defendants urge that, based on the record before this court,

Dr. Nelson cannot be allowed to present to the factfinder his

hypothesis that Parks adhesive remover absorbs MEK from

the lacquer thinner and gradually releases MEK vapor,

thereby resulting in a continuous and longer burn upon igni-

tion of the MEK vapor on its surface. The material data safety

sheet ["MSDS"] for the adhesive remover lists it as nonflam-

mable, and nothing in the record supports a finding that it is

flammable. Dr. Nelson does not testify that the flammability

of either product was increased by its combination with the

other product. Rather, Dr. Nelson's testimony is that the dan-

ger of using either product is increased by using the products

together, because the absorption of MEK into the adhesive re-

mover can result in a continuous burn. Pl. Ex. D. at p. 164.

eee te eee eon en erat wa

19a

The issue, then, is whether Dr. Nelson can testify that both

products become more dangerous through the absorption of

one into the other.

Even assuming Dr. Nelson's experience as a safety engineer

qualifies him to testify about the gradual release of vapor

from a substance that has absorbed a liquid, there is no evi-

dence in the record that the Parks adhesive remover actually

absorbs MEK from the Klean-Strip lacquer thinner. Dr. Nel-

son did not perform tests on the products or the combination

of the products, and he did not arrange for any such tests to

be performed. He offers no clinical testing, data, or studies

that suggest the adhesive remover absorbs MEK. Nor does

Dr. Nelson offer data or studies suggesting adhesive removers

generally, or substances similar in chemical composition to

adhesive removers, absorb MEK or chemicals similar in com-

position to MEK. Indeed, the only information in the record

relating to MEK and absorption is: (1) the MSDS for Klean-

Strip lacquer thinner which states the lacquer thinner "may be

absorbed through the skin" (Barr Ex. F); and (2) Dr. Nelson's

description of his testimony in another case where rags and

clothing absorbed MEK (PI. Ex. D. p. 62). However, skin and

fabrics may absorb chemicals that adhesive remover does not

absorb.

The question whether adhesive remover absorbs the MEK in

lacquer thinner and gradually releases MEK vapor is a ques-

tion of science. An expert scientific opinion must be

grounded in the "methods and procedures of science," and

must consist of more than "subjective belief or unsupported

speculation." Daubert, 509 U.S. at 589. In presenting their hy-

pothesis about the danger of the adhesive remover/lacquer

thinner combination, plaintiffs rely upon 16 C.F.R. Part

1500.5, which provides in part:

20a

It may not be possible to reach a fully satisfac-

tory decision concerning the ... flammable ...

properties of a [mixture of substances] from

what is known about its components or ingre-

dients. The mixture itself should be tested.

Yet, Dr. Nelson performed no tests and presents no scientific

evidence of a synergistic or combinational effect that creates

a more continuous or longer burn. He offers only an untested

hypothesis. On this record, the court cannot conclude that Dr.

Nelson's absorption testimony has a grounding in the methods

and procedures of science. Accordingly, that testimony is in-

admissible under Fed. R. Evid. 702.

Nor is the court confident about Dr. Nelson's qualifications to

testify as an expert on the requirements of the federal labeling

laws. When asked for the basis of his opinions, Dr. Nelson

could not identify publications in his field or any other

sources that recommend the warnings and precautionary lan-

guage he suggests. He points to no industry customs as evi-

dence of the allegedly required additional warnings. Nor does

he provide tests or studies of any kind that demonstrate the

value of his proposed additional language, or suggest which

warnings and precautions should be removed to make room

for all the additional explanations he desires. Although Dr.

Nelson claims to consult companies about their warning la-

bels from time to time, he could not identify a single com-

pany or individual for whom he has done such work. Dr.

Nelson fails to explain the methodology by which people in

his field reach their conclusions about required warnings and

precautionary instructions under federal law. Indeed, Dr. Nel-

son admits the basis for his conclusions is the "logical" appli-

cation of the federal statute -- "a matter of two and two equals

four." Pl. Ex. D. at p. 95. This does not inspire great

2la

confidence in his ability to assist the factfinder. Dr. Nelson

may not give an opinion that amounts to an unsubstantiated

assertion of the warnings that are required by the law. See,

e.g., Strickland v. Royal Lubricant Co. Inc., 911 F. Supp.

1460, 1469 (M.D. Ala. 1995).

Nonetheless, Dr. Nelson is a safety engineer by training, and

for 12 years he worked at Texas A & M identifying, evaluat-

ing, and controlling potential hazards. He testifies safety en-

gineers evaluate hazards "in terms of risk, in terms of the

likely severity and probability of mishap, and then you con-

trol hazards basically by three methods ... the third is through

instructions and warnings and procedures and policies." PI.

Ex. D. at p. 23 - 24. However, Dr. Nelson offers no evidence

that he followed that methodology in this case. He presents

no evidence of the likely severity and probability of mishap

associated with the additional dangers, or that he analyzed

these factors; by his own admission, that is how safety engi-

neers evaluate hazards. Rather, Dr. Nelson offers only his

conclusions. "[A] district court asked to admit scientific evi-

dence must determine whether the evidence is genuinely sci-

entific, as distinct from being unscientific speculation offered

by a genuine scientist." Rosen v. Ciba-Geigy Corp., 78 F.3d

316, 318 (7th Cir. 1996). The Seventh Circuit has repeatedly

approved the application of the Daubert standard in cases in-

volving safety experts and matters of applied science. See

Cummins, 93 F.3d at 367 n. 2. Accordingly, Dr. Nelson's tes-

timony about additional principal hazards is inadmissible.

Il. SUMMARY JUDGMENT STANDARD

A movant is entitled to summary judgment under Rule 56

when the moving papers and affidavits show there is no genu-

ine issue of material fact and the movant is entitled to

22a

judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S.

Ct. 2548 (1986); Unterreiner v. Volkswagen of America, Inc.,

8 F.3d 1206, 1209 (7th Cir. 1993). Once a moving party has

met its burden, the non-moving party must go beyond the

pleadings and set forth specific facts showing there is a genu-

ine issue for trial. Fed.R.Civ.P. 56(e); Becker v. Tenenbaum-

Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). The

court considers the record as a whole and draws all reason-

able inferences in the light most favorable to the party oppos-

ing the motion. Fisher v. Transco Services-Milwaukee, Inc.,

979 F.2d 1239, 1242 (7th Cir. 1992).

A genuine issue of material fact exists when "the evidence is

such that a reasonable jury could return a verdict for the non-

moving party." Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Stewart

v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993), cert. denied,

510 U.S. 1121, 127 L. Ed. 2d 393, 114 8. Ct. 1075 (1994).

"The mere existence of a scintilla of evidence in support of

the [nonmoving party's] position will be insufficient; there

must be evidence on which the jury could reasonably find for

the [nonmoving party]." Anderson, 477 U.S. at 252.

Il. PRODUCTS LIABILITY CLAIMS

To prevail on a claim of strict liability under Illinois law,

plaintiffs must show: (1) the injury resulted from a condition

of the product; (2) the condition was unreasonably dangerous;

and (3) the condition existed at the time it left the manufac-

turer's control. Faucett v. Ingersoll-Rand Min. & Machinery

Co., 960 F.2d 653, 655 (7th Cir. 1992). A product may be un-

reasonably dangerous in two ways: (1) a design or manufac-

turing defect; or (2) a failure to warn of a danger posed by the

23a

product of which the average consumer would not be aware.

Lamkin v. Towner, 138 Ill. 2d 510, 563 N.E.2d 449, 150 Ill.

Dec. 562 (1990).

A. Failure to Warn and Preemption under the FHSA

The Federal Hazardous Substance Act ("FHSA") was enacted

in 1962 to "provide national uniform requirements for ade-

quate cautionary labeling of packages of hazardous sub-

stances which are sold in interstate commerce..." House

Comm. on Interstate and Foreign Commerce, Federal Hazard-

ous Substances Labeling Act, H.R. Rep. No. 1861, 86th

Cong. 2d Sess. 2 (1960), reprinted in 1960, U.S.C.C.AN.

2833. When the FHSA was amended in 1966, the legislative

history discussed "the impracticality of having the states pro-

duce potentially 50 different labels for a particular hazardous

substance." Moss v. Parks Corp., 985 F.2d 736 (4th Cir.

1993), cert. denied, 509 U.S. 906, 113 S. Ct. 2999, 125 L. Ed.

2d 693. The 1966 amendment added the following preemp-

tion provision:

If a hazardous substance or its packaging is

subject to a cautionary labeling requirement

under [the FHSA] designed to protect against

a risk of illness or injury associated with the

substance, no State ... may establish or con-

tinue in effect a cautionary labeling require-

ment applicable to such substance or

packaging and designed to protect against the

same risks of illness or injury unless such cau-

tionary labeling requirement is identical to the

labeling requirement under [the F HSA].

15 U.S.C. § 1261, Note (b)(1)(A) (emphasis added).

-

24a

Based on this preemption provision, the great majority of

courts around the country have held that as to products gov-

erned by the FHSA, a common law tort action based on an al-

leged failure to warn may be brought only for

non-compliance with the FHSA labeling requirements. See,

e.g., Moss, 985 F.2d 736; DeHaan v. Whink Prods. Co., 1994

U.S. Dist. LEXIS 650, 1994 WL 24322 (N.D. Ill. Jan. 26,

1994); Busch v. Graphic Color Corp., 169 Ill. 2d 325, 662

N.E.2d 397, 214 Ill. Dec. 831 (Ill. 1996). In Moss, the plain-

tiff suffered burns when fumes from a paint thinner erupted

into flames; the plaintiff alleged the paint thinner manufac-

turer provided inadequate warnings of the product's propen-

sity to ignite. In affirming the district court's granting of

summary judgment, the Moss court held that "if the plaintiff

requests a label that is more elaborate or different than the

one required by the FHSA and its regulations, the claim is

preempted." 985 F.2d at 740. Plaintiffs do not seem to seri-

ously dispute that their state law "failure to warn" claim is

preempted to the extent it would impose labeling require-

ments different from or in addition to those imposed by fed-

eral law. Rather, plaintiffs correctly point out they may still

recover under state tort law by proving defendants failed to

comply with the FHSA.

B. Misbranding Under the FHSA

It is undisputed that Parks adhesive remover and Klean-Strip

lacquer thinner are hazardous substances within the meaning

of the FHSA. A hazardous substance is misbranded under the

FHSA if it fails to bear a label which states conspicuously:

(e) an affirmative statement of the principal

hazard or hazards, such as "Flammable,"

"Combustible," "Vapor Harmful," "Causes

25a

Burns," "Absorbed Through Skin," or similar

wording descriptive of the hazard;

(f) precautionary measures describing the ac-

tion to be followed or avoided, except when

modified by regulation of the Secretary...

15 U.S.C. § 1261(p)(1).

Parks Adhesive Remover. Plaintiffs argue the labeling of

Parks adhesive remover is deficient in several respects. First,

plaintiffs argue Parks failed to warn of a "new element of

danger" created by using adhesive remover and lacquer thin-

ner in succession. This new danger is the continuous or

longer burning caused by the alleged absorption of MEK

from the extremely flammable lacquer thinner into the non-

flammable adhesive remover, creating a "gooey substance"

that gradually releases MEK vapor after the MEK vapor in

the air would otherwise have "flashed out." Resp. p. 6. This

argument fails to create a genuine issue for trial, because

there is no evidence in the record that Parks adhesive remover

actually absorbs MEK from lacquer thinner. The only sugges-

tion that this occurs comes from Dr. Nelson; for the reasons

previously discussed, Dr. Nelson's testimony about an

absorption effect between the two products is inadmissible.

Inadmissible testimony cannot be used to withstand summary

judgment. Navarro v. Fuji Heavy Industries, Ltd., 117 F.3d

1027 (7th Cir. 1997); Whitted v. General Motors Corp., 58

F.3d 1200, 1204 (7th Cir. 1995).

Because Dr. Nelson's hypothesis that the adhesive remover

absorbs MEK is inadmissible, (1) plaintiffs’ analogy to ex-

tremely flammable contact adhesives found unsafe by the

Consumer Product Safety Commission is inapposite and (2)

26a

there is no evidence that any danger stemming from Parks'

recommendation of lacquer thinner has anything to do with

the successive use of the products, as opposed to the extreme

flammability of lacquer thinner. Plaintiffs suggest "[Dr. Nel-

son's] hypothesis is proven by the photographs of Mr.

Kirstein's feet." Given that extremely flammable lacquer thin-

ner was used to wipe the floor at the time of the fire, the fact

that Mr. Kirstein's feet were severely burned is -- at most -- a

scintilla of evidence in support of Dr. Nelson's hypothesis.

The mere existence of a scintilla of evidence is insufficient to

create a genuine issue for trial. Anderson, 477 U.S. at 252.

Second, Dr. Nelson "criticizes" the Parks warnings as "not

set off within the text." Dr. Nelson does not elaborate on this

criticism, or explain how the placement of the warnings vio-

lates the FHSA. His conclusory assertion fails to create a

genuine issue for trial. Third, Dr. Nelson asserts the instruc-

tion on the front display panel to "See other health hazard in-

formation on back panel" appears in too small type size. The

relevant regulations require this instruction to appear in "the

same type size as that required in Table 1 for other cautionary

material which appears elsewhere on the label ... [which is]

determined by the area of the panel on which it does appear."

16 C.F.R., Part 1500.121(c)(2)(iii). "When an item of label-

ing is required to be in a specified type size, all upper case, or

capital, letters must be at least equal in height to the required

type size, and all other letters must be in the same style as the

upper case or capital letters." Id., Part 1500.121(c)(2)(11). The

court has examined Table 1, has measured the type size as de-

fined by the regulations, and has found Dr. Nelson's assertion

to be factually incorrect.

Finally, Dr. Nelson claims the Parks adhesive remover label

violates Part 1500.122 by advertising its product as

27a

“nonflammable" on its front display panel, thereby detracting

from the following warnings on the back display panel:

Contact with flame or hot surface may pro-

duce toxic gases. KEEP AWAY FROM

HEAT, SPARKS, AND FLAME. DO NOT

SMOKE. Extinguish all flames and pilot

lights, and turn off stoves, heaters, electric

motors, and other sources of ignition during

use and until all vapors are gone.

Barr Ex. G. As previously discussed, it is undisputed the ad-

hesive remover is nonflammable, and there is no admissible

evidence in the record that, as a matter of chemistry, its flam-

mability changes when used with lacquer thinner. It is plain

that the warning to keep the adhesive remover away from

"heat, sparks, and flame" relates back to the danger that "con-

tact with flame or hot surface may produce toxic gases." Es-

sentially, Dr. Nelson criticizes Parks for including more

cautionary language about sparks and flames than he deems

necessary for a nonflammable product that may produce toxic

gases when heated. Even assuming Parks showed an abun-

dance of caution in this regard, no reasonable jury could find

Parks' accurate description of its product as "nonflammable"

is misleading. As a matter of law, Parks’ display panels meet

the requirements of the federal labeling laws. To the extent

Dr. Nelson argues the Parks label should have included addi-

tional or different warnings not required by the FHSA or its

regulations, those claims are preempted. Moss, 985 F.2d at

740. Accordingly, Parks' motion for summary judgment is

granted as to Count II (failure to warn).

Klean-Strip Lacquer Thinner. Dr. Nelson next opines that the

warnings and precautionary measures listed on the Klean-

28a

Strip lacquer thinner do not meet the requirements of the 15

U.S.C. § 1261(p)(1)(e) and (f). The entirety of plaintiffs’

briefing on this point is quoted here: ‘

Nelson criticizes the Barr lacquer thinner as

not conforming to Section 1261. One principal

hazard that is not listed is that MEK is ab-

sorbed by clothing, rags and skin. (Plaintiff

Answer, Exhibit D, Nelson deposition, page

68) Additionally, the full nature of the hazard

is not, in any way, communicated by the

phrase, "flammable or extremely flammable."

Id. at 70.

Finally, it does not indicate that the vapor can

travel and create explosive conditions. (pages

73 - 75) Additionally, section 1261(f) [sic] re-

quires precautionary measures and the precau-

tionary measures stated are inadequate. Id. at

page 77.

Resp. at p. 7. As previously discussed, Dr. Nelson's conclu-

sions about additional "principal hazards" are inadmissible

under Fed. R. Evid. 702. Without any evidence in the record

concerning the severity and probability of mishaps associated

with Dr. Nelson's proposed additional hazards, no reasonable

jury could conclude those hazards are "principal hazards" for

which the FHSA requires explicit warnings.

Dr. Nelson also urges that the precautionary language on the

back of the lacquer thinner can is inadequate. Pursuant to Lo-

cal Rule 12(N), parties opposing summary judgment must set

forth in their 12(N) statements additional facts requiring de-

nial of summary judgment. Plaintiffs fail to set out facts in

29a

their 12(N) statement supporting their conclusion that the lac-

quer thinner's precautionary language is inadequate. Nor do

they even bother to set out these facts in their brief. "District

courts are not obliged in our adversary system to scour the re-

cord looking for factual disputes and may adopt local rules

reasonably designed to streamline the resolution of summary

judgment motions." Waldridge v. American Hoechst Corp.,

24 F.3d 918, 922 (7th Cir. 1994). The court has scoured the

deposition testimony of Dr. Nelson, and it concludes his pro-

posed precautionary language is preempted by the FHSA.

The back panel of the lacquer thinner can includes the follow-

ing cautionary language:

DANGER! EXTREMELY FLAMMABLE.

KEEP AWAY FROM HEAT, SPARKS,

FLAME AND ALL OTHER SOURCES OF

IGNITION. VAPORS MAY CAUSE FLASH

FIRE OR IGNITE EXPLOSIVELY. Do not

smoke. Extinguish all flames and pilot lights,

and turn off stoves, heaters, electric motors

and all other sources of ignition during use

and until all vapors are gone. Beware of static

electricity that may be generated by synthetic

clothing and other sources.

Whenever possible, use outdoors in an open

area. Do not use in areas where vapors can ac-

cumulate and concentrate such as basements,

bathrooms or small enclosed areas. USE

ONLY WITH ADEQUATE VENTILATION

TO PREVENT BUILD-UP OF VAPORS.

Open all windows and doors. Use only with a

cross-ventilation of moving fresh air across

30a

the work area. If strong odor is noticed or you

experience light dizziness, headache, nausea

or eye watering - STOP - ventilation is inade-

quate. Leave area immediately.

Barr Ex. H. Among Dr. Nelson's objections to the precaution-

ary language are these: (1) it instructs the user to turn off all

sources of ignition instead of instructing the user to turn off

the main circuit breaker and the main gas supply, which

would be a clearer instruction; (2) it fails to explicitly connect

the precaution of turning off all sources of ignition to the risk

of fire, and this explanation is required to make the instruc-

tion effective; (3) it fails to explain what "vapor" is, and that

it is invisible and can travel; (4) it fails to explain what it

means by "adequate ventilation"; and (5) it fails to suggest

wearing impermeable protective gear and a breathing appara-

tus. Dr. Nelson presents many ideas for more elegant and

elaborate instructions; he fails to explain why the actual pre-

cautionary instructions are inadequate under the FHSA. The

instructions label cautions the user to turn off all possible

sources of ignition. It explicitly mentions the danger of va-

pors building up and states in bold capitals: VAPORS MAY

CAUSE FLASH FIRE OR IGNITE EXPLOSIVELY. It gives

consumers a simple and understandable test for judging the

adequacy of ventilation: "if strong odor is noticed or you ex-

perience light dizziness, headache, nausea or eye watering -

STOP - ventilation is inadequate." The fact that more detailed

and thorough instructions can be written is unquestionable.

Of course, it is possible to write instructions that include defi-

nitions of terms like "vapor" and explanations of why and

how each precautionary instruction reduces risks. Plaintiffs

fail to explain why the actual precautionary instructions are

not sufficient to meet the requirements of the FHSA as a mat-

ter of law.

31a

Indeed, the Consumer Product Safety Commission ("CPSC"),

the agency which oversees enforcement of the FHSA, pro-

vides sample warning labels for some products. While sample

precautionary instructions are not specifically provided for

lacquer thinner, the CPSC has provided sample precautionary

instructions for "contact adhesives," the vapors of which are

extremely flammable. The CPSC offers the following as suf-

ficient precautionary instructions:

Prevent buildup of vapors -- open all windows

and doors -- use only with cross-ventilation.

Keep away from heat, sparks, and open flame.

Do not smoke, extinguish all flames and pilot

lights, and turn off stoves, heaters, electric

motors, and other sources of ignition during

use and until ail vapors are gone.

Close container after each use.

Keep out of the reach of children.

16 C.F.R. § 1500.133(b) (1997). If these precautionary in-

structions are sufficient, then the precautionary instructions

for Klean-Strip lacquer thinner are sufficient as a matter of

law. Accordingly, Barr's motion for summary judgment is

granted as to Count II (failure to warn).

C. Design and Manufacturing Defects

The second manner in which a product may be unreasonably

dangerous is through a design or manufacturing defect. Lam-

kin v. Towner, 138 Ill. 2d 510, 563 N.E.2d 449, 150 Ill. Dec.

32a

562 (1990). Plaintiffs' only argument that Parks adhesive re-

mover was unreasonably dangerous relates back to Dr. Nel-

son's MEK absorption hypothesis. As Dr. Nelson failed to

provide any support for that hypothesis, a reasonable jury

could not find the adhesive remover unreasonably dangerous.

When asked if the lacquer thinner was defective in some way

aside from the warnings, Dr. Nelson conceded it was not. PI.

Ex. D. at p. 137 - 138. However, plaintiffs argue the lacquer

thinner is unreasonably dangerous under the "consumer con-

templation" test because Dr. Nelson opines that to properly

use lacquer thinner in an enclosed space, one would have to

use respiratory equipment that is not reasonably available to

the consumer. Under the consumer contemplation test, "a

product is only considered defective or unreasonably danger-

ous if it fails to perform in a manner the ordinary consumer

would expect." Todd v. Societe Bic S.A., 21 F.3d 1402 (7th

Cir. 1994). Obviously, the ordinary consumer's expectations

relate in some way to the product's warnings. The manufac-

turer of Klean-Strip lacquer thinner warns, "Do not use in ar-

eas where vapors can accumulate and concentrate such as

basements, bathrooms or small enclosed areas." Barr Ex. H.

Thus, the ordinary consumer would expect that it is danger-

ous to use lacquer thinner in small enclosed areas.

Second, plaintiffs argue the lacquer thinner is unreasonably

dangerous under the "risk-utility" test, because mineral spirits

are less dangerous. A product is unreasonably dangerous un-

der the risk-utility test when the product could have been de-

signed to prevent foreseeable harm without hindering its

function or increasing its price. Lamkin, 138 Ill. 2d 510, 563

N.E.2d 449, 150 Ill. Dec. 562. Plaintiffs’ argument fails for

two reasons. First, the Seventh Circuit has questioned

whether Illinois courts apply the risk-utility test to simple but

33a

obviously dangerous products. See Todd, 21 F.3d at 1412.

Second, even if the test applies, it is not satisfied by showing

a completely different product is safer. Even if mineral spirits

are less dangerous, that does not mean lacquer thinner can be

manufactured to be less dangerous. Accordingly, plaintiffs’

argument is without merit. As no genuine issue of material

fact exists for trial, both defendants are entitled to summary

judgment on Count I.

Ill. DERIVATIVE CLAIMS

Because Joy Kirstein's claims derive from her husband's

product liability claims, defendants are entitled to summary

judgment on Counts III and IV.

CONCLUSION

Defendants' motions for summary judgment are granted.

Judgment~-is entered in favor of defendants W.M. Barr &

Company, Inc. and Parks Corporation and against plaintiffs

George Kirstein and Joy Kirstein.

ENTER:

Suzanne B. Conlon

United States District Judge

October 28, 1997

JUDGMENT IN A CIVIL CASE

34a

Decision by Court. This action came to trial or hearing before

the Court. The issues have been tried or heard and a decision

has been rendered.

IT IS ORDERED AND ADJUDGED that judgment is en-

tered in favor of defendants W.M. Barr & Company, Inc. And

Parks Corporation and against plaintiffs George Kirstein and

Joy Kirstein.

Date: 10/28/97

35a

GEORGE KIRSTEIN and JOY KIRSTEIN, Plaintiffs, vs.

W.M. BARR & COMPANY, INC. and PARKS CORPORA-

TION, Defendants.

No. 97 C 0002

UNITED STATES DISTRICT COURT FOR THE NORTH-

ERN DISTRICT OF ILLINOIS, EASTERN DIVISION

December 1, 1997, Decided

December 3, 1997, Docketed

COUNSEL: For GEORGE KIRSTEIN. plaintiff: Paul R.

Schuldiner, Attorney, Chicago, IL.

For W.M. BARR & COMPANY, INC., PARK CORPORA-

TION, THE, defendants: Jeffrey Adam Brauer, Williams &

Montgomery, Chicago, IL.

For PARK CORPORATION, THE, defendant: Daniel John

Donnelly, Michael Jarnes Mullen. Kralovec & Marquard,

Chartered, Chicago, IL.

For W.M. BARR & COMPANY, INC., PARK CORPORA-

TION, THE, cross-claimants: Jeffrey Adam Brauer, Williams

& Montgomery, Chicago, IL.

For PARK CORPORATION, THE, cross-claimant: Daniel

John Donnelly, Michael James Mullen, Kralovec & Mar-

quard, Chartered, Chicago, IL.

36a

For PARK CORPORATION, THE, W.M. BARR & COM-

PANY, INC., cross-defendants: Jeffrey Adam Brauer, Wil-

liams & Montgomery, Chicago, IL.

For PARK CORPORATION, THE, cross-defendant: Daniel

John Donnelly, Michael James Mullen, Kralovec & Mar-

quard, Chartered, Chicago, IL.

JUDGES: Suzanne B. Conlon, United States District Judge.

OPINIONBY: Suzanne B. Conlon

OPINION: MEMORANDUM OPINION AND ORDER

George Kirstein ("Kirstein") and his wife Joy Kirstein ("Joy")

(collectively "plaintiffs") sue W.M. Barr & Company, Inc.

("Barr") and Parks Corporation ("Parks") (collectively "de-

fendants"). Counts I and II are products liability claims

brought by Kirstein. Count III and IV are derivative claims

brought by Joy. The court granted defendants’ motions for

summary judgment on all counts. Memorandum Opinion and

Order, No. 97 C 002 (N.D. Ill. Oct. 28, 1997). Plaintiffs move

for reconsideration of the October 28 opinion pursuant to

Fed. R. Civ. P. 59(e).

Motions for reconsideration serve a limited purpose. On re-

consideration, a party may not introduce new evidence or le-

gal theories that could have been presented earlier. Caisse

Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d

1264, 1269 (7th Cir. 1996). A motion for reconsideration may

be proper to correct manifest errors of law or to present newly

discovered evidence that was unavailable prior to the hearing

on summary judgment. In the Matter of Prince, 85 F.3d 314,

324 (7th Cir. 1996), cert. denied, 136 L. Ed. 2d 534, 117 S.

37a

Ct. 608 (1996). However, "[a] Rule 59(e) motion cannot be

used to present evidence that could and should have been pre-

sented prior to the entry of final judgment." Id.

As the relevant facts are sei forth in the October 28 opinion,

there is no need to recite them here. Despite plaintiffs' failure

to present a coherent statement of Dr. Nelson's theory (or

theories) in their 12(N) statement or even in their response

brief, the court read Dr. Nelson's deposition testimony in

search of that theory. Pursuant to Fed. R. Evid. 702, the court

excluded Dr. Nelson's testimony about increased danger from

the absorption of MEK. Plaintiffs now argue the court misin-

terpreted Dr. Nelson's theory, in that Dr. Nelson testified -- in

an answer to a question on page 181 of his deposition tran-

script -- that the flammability of the Parks adhesive remover

is increased when combined with Barr's Klean-Strip lacquer

thinner.

Pursuant to Local Rule 12(N), parties Opposing summary

judgment must set forth in their 12(N) statements additional

facts requiring denial of summary judgment. Putting aside

plaintiffs’ failure to comply with the local rules, Dr. Nelson's

testimony about "increased flammability" is inadmissible un-

der Rule 702 for the same reasons discussed in the October

28 opinion. Plaintiffs respond that the increased flammability

theory and the MEK flash theory are supported by the prod-

ucts' labels, Kirstein's deposition, the photographs of

Kirstein's injuries, and other evidence in the record. Pl. Mot.

PP 1, 6, 13. Plaintiffs fail to explain how merely reading the

two labels, reading Kirstein's deposition, or viewing photo-

graphs can support a theory that the successive use of defen-

dants' products creates a more "explosive" mixture or

increases the flammability of the Parks adhesive remover.

More importantly, plaintiffs failed to provide these

38a

explanations when they responded to defendants’ motions for

summary judgment. Plaintiffs' new arguments come too late.

On November 5, 1997, plaintiffs' motion to disclose Shelby

Parchman -- an additional expert who performed chemical

testing -- came before the court. As the court's October 28

opinion granting summary judgment had already been issued,

the court ruled that plaintiffs’ motion to disclose an additional

expert was moot. Plaintiffs challenge this ruling, arguing that

Parchman's affidavit supports Dr. Nelson's theory and that "it

is obvious" Dr. Nelson's qualifications did not become an is-

sue until Parks filed its reply brief. Pl. Mot. PP 2 - 4, 12. On

the contrary, Barr raised the issue of Dr. Nelson's qualifica-

tions in its motion for summary judgment. Barr's Summary

Judgment Motion at pp. 14 - 15. Plaintiffs urge Barr's argu-

ment was merely an "afterthought," and was not truly pre-

sented in its summary judgment motion. However, Barr

devoted two pages of its brief arguing that Dr. Nelson lacked

a chemistry background. Plaintiffs were clearly put on notice

then (if not at Dr. Nelson's deposition) that chemistry was

critically important to their case. Plaintiffs thus had ample op-

portunity to address these arguments in their response.

More importantly, plaintiffs cannot reasonably assert that the

aspects of their case based on chemistry could survive sum-

mary judgment without presenting either chemical testing,

studies applying or discussing the chemical principles at is-

sue, or some sort of chemical foundation for their expert's

opinion. Disclosure of experts in this case was to be complete

by May 21, 1997. Plaintiffs argue that in November 1997 --

after discovery closed, after defendants exposed the deficien-

cies in plaintiffs' case, and after the court granted summary

judgment -- plaintiffs should be allowed to retain and disclose

another expert who might establish a material issue for trial.

39a

This would undercut the purpose and finality of dispositive

motions.

Plaintiffs argue it was fundamentally unfair for the court to

find their motion to disclose Shelby Parchman moot, because

the court had previously granted defendants leave to file addi-

tional support for their summary judgment motions. Plaintiffs

ignore that defendants were granted leave to file additional

support in part because the court granted plaintiff's request

for a (nearly) two month extension to file plaintiffs’ response.

Plaintiffs argue the court wrongly excluded Dr. Nelson's testi-

mony because the court "ignored" Dr. Nelson's Exhibit 4

"which discussed at length principles of safety engineering

and rules of hazard control." Plaintiffs misunderstand the

Seventh Circuit's interpretation of Daubert. "[A] district court

asked to admit scientific evidence must determine whether

the evidence is genuinely scientific, as distinct froni being un-

scientific speculation offered by a genuine scientist." Rosen

v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996). It is

not enough for plaintiffs to demonstrate Dr. Nelson belongs

to a field that employs scientific principles, or even that Dr.

Nelson usually applies those principles in his work. Rather,

Dr. Nelson had to explain how he applied those principles in

this case. He failed to do so, despite ample opportunity.

Plaintiffs argue the court "ignored" (1) the fact that Dr. Nel-

son has testified as an expert in "scores of cases throughout

the United States"; and (2) Dr. Nelson's "extensive resume."

Again, these facts are irrelevant to whether Dr. Nelson's testi-

mony in this case was admissible. Plaintiffs argue that Dr.

Nelson is not a "junk scientist." The court's October 28 opin-

ion does not conclude that Dr. Nelson is a junk scientist. He

may well be a genuine scientist who offered unscientific

speculation in this case. See id.

40a

laintiffs' remaining arguments were considered, addressed,

and rejected in the October 28 opinion. Plaintiffs offer no

valid reason why they should be reconsidered.

CONCLUSION

Plaintiffs' motion for reconsideration is denied.

ENTER:

Suzanne B. Conlon

United States District Judge

December 1, 1997