Several years ago, I had an unusual workman’s compensation case, pending in Salem County, New Jersey. The petitioner claimed that after his employment, he had developed a rare disease as a result of his workplace exposures. The exact disease really does not matter, other than to note that there was some suggestive epidemiologic evidence of an association, and some evidence against the association. As a result of the scientific ambiguity, the respondent had started to warn, on its material data safety sheets, and on its packaging, of the association. So when I stepped into the judge’s chambers, the first thing the petitioner’s counsel said was: “I win; the employer has admitted causation.” The judge looked skeptical, and when I pointed out that association is not causation, and that warnings are not statements of scientific conclusions, His Honor agreed enthusiastically. To the petitioner’s counsel’s shock and dismay, the judge directed us to brief the reliability issue. Things like that do not often happen in New Jersey, and especially not in a worker’s compensation case. (A statute of limitations issue ultimately turned out to be dispositive, and we never did get a ruling on the scientific claim.)
The use of the material safety data sheet (MSDS), or warnings on product packaging, is a recurring theme in so-called toxic tort litigation. The MSDS is a compilation of information about a hazardous material or substance. Under Occupational Safety and Health Administration (OSHA) regulations, the seller is required to compile information about hazards and provide to purchasers. See 29 C.F.R. § 1910.1200(g) (2006). Much of the required information is regulatory classification, which is often based upon precautionary judgments about hazards and risks, without information specific to actual exposures likely experienced by end users. The existence of the MSDS often provides claimants a basis to argue that the seller has admitted causation, but in reality, the argument is little more than a substitution of substituting regulatory precautionary judgment for causal assessments.
The Fifth Circuit’s recent, sure-footed decision in Johnson v. Arkema, Inc., below, reminded me how misleading and how persistent are the expert witnesses who argue causal conclusions based upon MSDS. The Fifth Circuit recognized that an MSDS cannot be more reliable than the evidence upon which it is based. Courts need to be on guard against the seductive argument that warnings and MSDS should substitute for scientific evidence of causation. Unfortunately, not all judges are as astute as the judge I drew in my Salem County worker’s compensation case, which means that there is work to be done.
FEDERAL CASES REJECTING RELIANCE UPON MSDS
Johnson v. Arkema Inc., Slip op. at 11-12, 2012 WL ___ (5th Cir. June 20, 2012) (per curiam) (affirming exclusion of expert witnesses who relied in part upon MSDS for two chemicals when the MSDS identified only a very general physical reaction of “respiratory tract irritation,” without identifying the underlying scientific support or specifying the relevant duration and exposure needed to induce any particular adverse outcome)
Pritchard v. Dow AgroSciences, LLC, 705 F. Supp. 2d 471 (W.D. Pa. 2010) (excluding expert witness who opined that Dursban caused NHL based in part upon MSDS), aff’d, 430 Fed. Appx. 102 (3d Cir. 2011), cert. denied, 132 S. Ct. 508 (2011)
Seaman v. Seacor Marine LLC, 564 F. Supp. 2d 598, 603 (E.D. La. 2008) (rejecting reliance on MSDS because, inter alia, “the MSDS … does not mention bladder cancer … as a potential effect”), aff’d, 326 F. App’x 721, 726 (5th Cir. 2009)
Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1209 (8th Cir. 2000) (affirming exclusion of expert witness who relied upon MSDS among other things)
Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir. 1999) (reliance upon MSDS insufficient)
Moore v. Ashland Chem. Inc., 151 F.3d 269, 278 (5th Cir. 1998) (en banc) (holding that the district court did not abuse its discretion in finding an expert witness’s reliance upon an MSDS because the withness “did not know what tests Dow [Corning] had conducted in generating the MSDS”)
Leake v. United States, 2011 U.S. Dist. LEXIS 149634 (E.D. Pa. 2011) (excluding expert witness who concluded that painting exposure caused liver failure based upon MSDS, etc.)
Henricksen v. ConocoPhillips Co., 605 F. Supp. 2d 1142, 1159 (E.D. Wash. 2009)(excluding expert witness who relied upon MSDS, among other items)
Moore v. P&G-Clairol, Case No. 09 C 1723, Slip op. (N.D. Ill. March 18, 2011)(excluding expert witness who relied upon MSDS to support a claim of a severe allergic reaction to Clairol hair dye; the MSDS did not address human reactions or consumer exposure levels)
STATE DECISIONS REJECTING RELIANCE UPON MSDS
OHIO
Braglin v. Lempco Indus., Inc., 2007 Ohio 1964; 2007 Ohio App. LEXIS 1773 (2007) (affirming exclusion of expert witness who relied upon MSDS among other things, and opined that plaintiff’s pancreatic cancer was caused by chemicals in raw metal processing)
TEXAS
Brookshire Bros., Inc. v. Smith, 176 S.W.3d 37-38 & n.7, 2003 WL 21756411, *4 (Tex. App. – Houston [1st Dist.] 2003, no pet. ) (MSDS or warning label cannot, alone, provide the specific, detailed, reliable showing of causation to support an expert witness’s opinion)
Coastal Tankships U.S.A. Inc. v. Anderson, 87 S.W.3d 591, 611 (Tex. App.‑ Houston [1st Dist.] 2002, pet. denied) (statement of health “effects” in MSDS was not reliable evidence of causation)
See also Exxon Corp. v. Makofski, 116 S.W.3d 176, 187-88 (Tex. App. 2003) (“standards used by OSHA [and] the EPA” inadequate for causal determinations)
UNTOWARD DECISIONS
There is, of course, some factual complexity to these decisions; some MSDS obviously will list well-established causal relationship; others not. The key point is that an MSDS is a tertiary source, compiled from primary sources at various levels in the hierarchy of evidence, as well as secondary reviews. To make matters really murky, most MSDS must also report regulatory classifications and determinations, which often are not evidence-based. Most of the “untoward” decisions, below, share typical fallacious elements:
- treating MSDS as an admission by the manufacturer or seller;
- confusing precautionary regulatory assessments with scientific determinations;
- ignoring considerations of dose, exposure, route of exposure, animal species; and
- confusing disease outcome discussed in MSDS with that claimed by plaintiff.
FEDERAL
Best v. Lowe’s Home Centers, Inc., 563 F.3d 171 (6th Cir. 2009), rev’g No. 3:04-CV-294, 2008 WL 2359986 (E.D. Tenn. June 5, 2008) (excluding expert witness who relied extensively upon MSDS)
Curtis v.M&S Petroleum, Inc. 174 F.3d 661, 669-70 (5th Cir. 1999) (reliance upon a particular MSDS was reasonable when the sheet was consistent with a body of reliable information about the hazards of benzene exposure)
Westberry v. Gislaved Gummi AB, 178 F.3d 257, 264-66 (4th Cir. 1999) (expert witness’s causation opinion of plaintiff’s sinus condition was reasonably based upon facts and data, including MSDS on talc)
McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1043-44 (2d Cir.1995) (affirming denial of Rule 702 motion when expert witness’s causation opinion was based upon wide array of materials, including product’s MSDS)
Allen v. Martin Surfacing, 263 F.R.D. 47 (D. Mass. 2009) (denying challenge to expert witness who concluded that plaintiff’s exposure to neurotoxic levels of floor-surfacing chemical caused his ALS)
In re Stand ‘n Seal Prod. Liab. Litig., 1:07 MD1804-TWT, MDL 1804, Order Sur Longo (N.D. Ga. June 15, 2009)(denying motion to exclude expert witnesses who relied in part upon MSDS)
In re Welding Fume Prod. Liab. Litig., 2006 WL 4507859, *35 (N.D.Ohio 2006)( OMALLEY, J.); 2005 WL 1868046, *36 (N.D.Ohio) (denying challenge to expert witnesses who claimed that welding causes Parkinson’s disease on basis of general statements in MSDS that a component of welding fume (manganese) can be neurotoxic, without specification of dose or duration)
Westley v Ecolab, Inc., 2004 WL 1068805 (E.D.Pa. 2004) (denying motion against expert witness who relied upon MSDS)
Blandin Paper Co. v. J&J Industrial Sales, Inc., No. Civ.02-4858 ADM/RLE, 2004 WL 1946388 (D. Minn. Sept. 2, 2004) (denying motion to exclude plaintiff’s expert witness who relied in part upon MSDS)
Lentz v. Mason, Case No. 1:96-cv-02319-SMO, Slip op. (D.N.J. Jan. 11, 1999)(denying motion to exclude expert witness who relied up MSDS as well as independent testing)
STATE
Langness v. Fencil Urethane Systems, Inc., 2003 ND 132, 667 N.W.2d 596 (2003) (reversing jury verdict on grounds of error in excluding expert witness who relied in part upon MSDS for physical properties of material)
