RENE JUNK, As Parent and Next Best Friend of Tyler Junk, a minor, and TYLER JUNK, Individually, Plaintiffs-Appellants,
HAROLD OBRECHT and JIM BRENEMAN, Defendants-Appellees.
Appeal from the Iowa District Court for Polk County, Terry Rickers, Judge.
Plaintiffs appeal the district court's ruling granting summary judgment to defendants in this toxic tort action.
Tracy N. Tool and C.M. Bye of Bye, Goff & Rohde, Ltd., River Falls, Wisconsin, and Donald Beattie and Brett Beattie of Beattie Law Firm, Des Moines, for appellants.
Stephen Swofford, David R. Creagh, and David J. Richards of Hinshaw & Culbertson, L.L.P., Chicago, Illinois, and Frank Comito and Kent Gummert of Gaudineer, Comito & George, L.L.P., West Des Moines, for appellees.
Heard by Doyle, P.J., Bower, J., and Huitink, S.J.[*]
I. Background Facts & Proceedings.
The following facts may be determined from the record presented on the defendants' motion for summary judgment. In 1992, while Rene Junk was pregnant, she and her husband, Dean Junk, contracted with Terminex International Company to have their home treated for the presence of spiders. Over a period of three years, Terminex employees, including Harold Obrecht and Jim Breneman, sprayed the interior of the home with Dursban. The Junks' son, Tyler, was born later in 1992. Tyler suffers from physical, neurological, and psychological problems.
On October 3, 2005, Rene, as parent and next friend of Tyler,  filed an action in Iowa district court against Terminex, Dow Chemical Company, Dow AgroSciences, Obrecht, and Breneman, claiming Tyler's problems were caused by exposure to chlorpyrifos, a chemical in Dursban. Plaintiffs also claimed Obrecht and Breneman had told the Junks that Dursban was not harmful to human beings.
On defendants' request, the case was removed to federal court based on diversity jurisdiction. On October 3, 2006, the federal district court dismissed all of the counts against Breneman. On August 11, 2008, plaintiffs voluntarily dismissed their claims against Obrecht. The federal case continued against defendants Terminex, Dow Chemical, and Dow AgroSciences.
Plaintiffs designated three expert witnesses: (1) Dr. Richard Fenske, a professor of environmental and occupational health sciences; (2) Dr. Cynthia Bearer, a pediatrician; and (3) Dr. Mohamed Abou-Donia, a professor of pharmacology, cancer biology, and neurobiology. In their affidavits, Dr. Bearer and Dr. Abou-Donia accepted the opinion of Dr. Fenske in his affidavit that while it was unknown how much chlorpyrifos Tyler had been exposed to, either in utero or as a child, the exposure probably exceeded the amount recommended by the Environmental Protection Agency (EPA).
Defendants filed a motion in limine seeking to exclude the testimony of Dr. Bearer and Dr. Abou-Donia. In an opinion dated September 11, 2008, the federal district court granted the motion as to the opinion of Dr. Abou-Donia because he did not estimate or calculate the levels of chlorpyrifos Rene or Tyler had been exposed to, stating only that it was enough to cause Tyler's neurobiological delays. The court issued a separate decision on the same day denying the motion in limine as to Dr. Bearer. Junk v. Terminex Int'l Co., 577 F.Supp.2d 1086, 1099 (S.D. Iowa 2008) (Junk I).
Defendants then filed a motion in limine seeking to exclude Dr. Fenske's and Dr. Bearer's specific causation opinions. The federal district court determined:
While Dr. Fenske reasonably estimates the amount of chlorpyrifos that was applied inside the Junk home, his opinions regarding the Junks' exposure and dosage suffer from a number of serious flaws. First, in rendering his opinions in this matter, Dr. Fenske did not apply the scientifically reliable model for estimating exposure that he typically utilizes in his research and teaching. Second, he based his opinion solely on the amount of chlorpyrifos applied to the Junk home without considering the size of the house, the areas treated, and the amounts applied to the exterior of the home. Third, Dr. Fenske attempted to compare the circumstances of chlorpyrifos exposures in the Junk home with the circumstances of exposures that occurred in certain academic studies. These comparisons are not reliable because they lack a sufficient factual basis.
Junk v. Terminex Int'l Co., 594 F.Supp.2d 1062, 1063 (S.D. Iowa 2008) (Junk II). The court concluded Dr. Fenske's opinion should be excluded because his methodology was not "scientifically valid, " using the analysis of Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-95 (1993). Id. at 1074. The court also determined that because Dr. Bearer's opinion relied on the exposure analysis of Dr. Fenske, her opinion was also inadmissible. Id. at 1075.
Defendants Terminex, Dow Chemical, and Dow AgroSciences filed motions for summary judgment. On November 3, 2008, in an unpublished opinion, the federal district court granted their motions for summary judgment finding, "[w]ithout expert testimony regarding specific causation of Tyler Junk's injuries, Junk failed to create a genuine issue of material fact regarding causation." Junk v. Terminex Int'l Co., 2008 WL 5142193, *3 (S.D. Iowa Nov. 3, ...