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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA THOMAS J. MCCONNELL and diane McConnell, his wife. Individually and on their own behalves and as parents and natural guardians of KRISTINE MCCONNELL, a minor, vs. CIBA-GEIGY CORPORATION and | ORKIN EXTERMINATING CO., INC. : CIVIL ACTION : : ; NO. 30-1692 Philadelphia, Pennsylvania December 15, 1982 Before HONORABLE ALFRED L. LUONGO, CHIEF JUDGE, (and a jury of 8) ' PARTIAL TRANSCRIPT ARGUMENT OF COUNSEL David S. Ehrlich OFFICIAL COURT REPORTERS Room 2722 U.S. Courthouse Philadelphia Pa 19106 WAlnutT9480 RECEIVED FEB 2 1933 R. A. HFIJERMAN BFG05332 r ii \i I I ] i }i j :! ; -i , it ! i j ii 'i* `.i5 u i 2 1 APPEARANCES: STEPHEN R. BOLDEN, ESQ., 2 WILLIAM W. SPALDING, ESQ., 3 RICHARD C. FERRONI, ESQ., Attorneys for Plaintiffs 4 F. HASTINGS GRIFFIN, JR., ESQ., 5 FRANK J. EISENHART, JR., ESQ., Attorneys for Ciba-Geigy Corp. 6 EDWARD L. McCANDLESS, JR., ESQ., 7 Attorney for Orkin 8 9 (The jury withdrew from the courtroom at 11:18a.m.) 10 MR. GRIFFIN: If your Honor please, at 11 this time I move to strike the testimony of two gentle 12 13 men offered by the plaintiff as experts. One, Mr. 14 Todd, the other. Dr. Epstein. And, my basis for the motions to strike are these: With respect to Dr. 15 16 Epstein, I incorporate what I argued before, that is 17 his testimony taken as a whole is not sufficient 18 under Pennsylvania law anyhow. 19 I add this additional basic ground: It made it perfectly clear on the basis of his testimony 20 that he is not giving independent judgment. He 21 simply says, I'm giving you my evaluation of the 22 literature. That is hearsay. It can be given only if 23 24 there is an exception to the hearsay rule, and there 25 is no exception to the hearsay rule on this literature. f | BFG05333 1T m m ca.. u n m , m. HHI . rw* im , 'i I' i I MB) 3 1 It has never been established by any witness, and I | i 2 was waiting until the end of all the testimony, that i 3 any of the studies to which he referred is authoritative 4 in the field as a text, so it couldn't be independently 5 introduced under the Buies of Evidence. 6 The rule that an expert may refer to 7 matters in his field has not been even fulfilled by 8 Dr. Epstein. Neither he nor any other witness has 9 ever testified that these studies are the type that 10 he would -- that experts in that field would use. And, 11 even if it were, you wouldn't have the case where a 12 man had independent judgment and was basing an inde 13 pendent judgment in part on some studies, which is -- 14 that is the admissible exception. It is a case where 15 he is basing it only on the studies and, therefore, it 16 seems to me that the studies themselves must be 17 admissible by one standard or another. And, since 18 there is simply hearsay, there's no basis for an 19 opinion and, therefore, his opinion should be stricken. 20 Now, with respect to Mr. Todd, your Honor 21 allowed his testimony on accumulation in that building 22 on the theory that although he was basing it on hearsay 23 information, that was information and expert and ; 24 his field might take into account in reaching an opinion a25 It is perfectly clear now that that BFG05334 u TT 4 underlying evidence may be -- and, in my view certainly is -- inaccurate. To that extent, that also is hearsay. And, it is an expert basing his opinion strictly on hearsay testimony without any indicia of real truthfulness in that testimony. And, therefore, that also is an opinion that is, basically, from an evidentiary stand point, a nothing opinion. He would have to have some independent evidence to show the basis for his opinion is accurate. And, for those two reasons I move to strike those two items of evidence. THE COURT: Mr. Bolden. MR. BOLDEN: Your Honor, I believe that Dr. Epstein's testimony is based upon his own indepen dent evaluation of the literature and his own indepen dent evaluation of the entire aggregate of the facts in this case, the records that he had before him and the information that had been supplied to him, in cluding the information from Dr. Todd. His opinion was based on a review of 13 studies involving eight different species of animals, his conviction and his explained reasons that positive studies are more significant than negative studies; the insensitivity of animal studies when small samples were being used to identify teratological effects, 20737004 BFG05335 T :u !| iI :V'r iy 3 5 J which will presumably produce low incidents of mal 2 formations. 3 . Additionally, your Honor, he has testified 4 with conviction, and I quote from his testimony, that 5 "My opinion is that there's a substantial probability 6 that the exposure of Mrs. McConnell to the Diazinon was 7 a contributory factor or the cause of her" -- 1 think 8 this was not in the testimony -- "birth defect." 9 With respect to the dangerous teratogenic 10 potentials Dr. Epstein concluded, "My conclusion is 11 that there's a substantial probability that Diazinon 12 is a teratogenic and represents a teratogenic hazard 13 to humans exposed to it." 14 With respect to the question of standards. 15 he was pressed on that at length on cross-examination 16 and while his -- some of the testimony is not a model 17 of clarity, I would refer the Court to his testimony 18 on pages 92, if I might have just one moment, your 19 Honor. 20 (Pause.) 21 92, 76 and 77, where, on page 92 he was 22 asked the following question: 23 "I will go back to the exposure. On page 24 72 of your deposition did you not testify, 'If 25 she was not exposed at all, clearly my profession BPC`0S336 1T 20737005 6 interest in the case would cease immediately. The calculation which I offer was simply illustra tive of the kind of ball park dose level, the very high ball park dose level which she could have gotten. "Answer: Correct, sir." And then his testimony on page 76 and 77 as follows, by Mr. Griffin: Question: All right, sir. If you are going to -- if you're going to prove a cause and effect relationship, you're going to have to satisfy yourself as a scientist that there is at least -- was enough of an exposure to this substance to have caused a teratogenic effect. "Answer: Correct, sir. "Question: And, that means that you have to know or at least have a reasonable scientific basis for knowing what level of exposure is necessary in order to create such an effect. "Answer: The information which I per sonally would need would be the qualitative evidence of exposure, the fact that she was exposed. The quantitative aspects of the exposur e I did not consider myself competent to calculate, and for this reason at a very early stage I BFG05337 20737006 7 recommended that an industrial hygienist be brought in to produce estimations of the likely levels of exposure. "I should point out also that when it come to the areas of teratogenesis and carcinogenesis, there is a concensus in the informed independent scientific community that there is no way of setting safe levels or thresholds. So, any exposure to a teratogen is hazardous, can produce birth defects, the greater the exposure and the more prolonged the exposure the greater the risk. Therefore, the two points are, one, I was satisfied qualitatively about the exposure, there was an exposure, but, B, I felt as indeed you felt, sir, that it would be helpful to have the opinion of a qualified expert in this area on the levels and persistence over and above what I have read myself, and that was, I believe -- that was the area 1 believe Mr. Todd had discussed with you and your colleagues in the > court." Your Honor, on the basis of that testimony I think that the matter clearly is one which is properl^ submitted to the jury. I would like to refer the Court to the BFG05338 20737007 8 case of Roberts vs. The United States, which I would hand up to the Court. I have a memorandum on this. The Roberts case is in the -- is in there. (Document handed to the Court by Mr. Bolden.) In Roberts, your Honor, this was a case decided by the United States Third Circuit Court of Appeals involving an inhalation of ethyglycol manu factured by the defendant. It was a situation involvin 7 a case of first impression where there was no known prior cases of inhalation, where the only evidence that had previously been gathered was evidence relating to animal studies and relating to consumption of the ethyglycol rather than inhalation. Succinctly, the facts are that the plaintiff was employed as a mechanic by the All American Engineering Company on the premises of the United States at Lakehurst, New Jersey from January to December 1957. As part of his duties he worked on hydraulic air arresting gear which was being experimen tally tested for use by the United States Navy on air craft carriers. It goes on to point out how he was exposed to this ethylglycol. On the points I think which are relevant BFG05339 20737008 } Il . | -- .4 '* ' i :i i 1 ! J J ..) 9 1 to the subject matter before the Court, the Third 2 Circuit commented as follows: 3 "Even if oral ingestion cases are the 4 only known causes of harm, it is possible that 5 no person was ever exposed to ethylene glycol 6 in the same manner as plaintiff. Plaintiff's 7 and defendant's experts differed mainly in the 8 quantity and the type of exposure and the 9 effects from exposure. Their testimony and all 10 other evidence of causation were exclusively for 11 the jury." 12 On page 495 of the court's opinion I 13 quote from the following: 14 "From the first time it manufactured 15 ethylene glycol, commercial containers were 16 labeled with cautionary statements that it could 17 be harmful or fatal if swallowed, and that it 18 should not be stored in open or unlabeled 19 containers. In view of this, the incomplete 20 data on safe quantity which could be ingested 21 and the admission that inhalation is a means by 22 which the substance can be ingested, the jury 23 could have found forseeability. Defendant 24 stresses this is the first indictment against 25 ethylene glycol under the circumstances and ! fKMAO CO.. OAfONNC. M.J, OlOOl fOOM ? 60Q L&LQ Z BFG05340 .j -1 J 1i 5 * A A 1] .{ 1 10 1 urges this as a bar to a finding of foresee 2 ability. We disagree. 3 "In Martin vs. Bengue, supra. 4 the Supreme Court of New Jersey said, 'The fact S that the product may have been used by many people 6 over a considerable period of time without prior 7 injury would not preclude the findings of fore 8 seeability and negligence.'" Citing cases. 9 THE COURT: You are dealing with a 10 totally different subject. What was the proof there 11 that it was in fact harmful? That is our problem here. 12 The question whether there was any proof that this 13 is teratogenic. 14 MR. BOLDEN: Okay, your Honor. The proof 15 was as follows: 16 Dr- Lam,., a neurologist and neuro 17 psychiatrist who treated the plaintiff and Dr. Brieger, 18 a specialist in internal preventative and occupational 19 medicine and toxicology, testified without objection 20 to their qualifications. Each had an impressive back 21 ground and substantial experience in dealing with 22 disorders caused by toxic substances. 23 THE COURT: What page are you reading from? 24 MR. BOLDEN: Page 492, your Honor. 25 Each was familiar with the literature on BfG0534' TT 20737010 11 1 the toxic effects of ethylene glycol when orally 2 ingested. Dr. Brieger had performed experiments in 3 which rats were subjected to ethylene glycol mist. '4 On neither new causes other than that of 5 oral ingestion in which ethylene glycol had neuro 6 toxic effects, both concluded that plaintiff's disorder 7 was a toxic disease of the nervous system caused by 8 exposure to ethylene glycol. This testimony was for 9 the jury. It was not destroyed because their only 10 experience or knowledge had been with cases of oral 11 ingestion. 12 Defendant points to the testimony of Dr. 13 Lam, that in all cases of neurotoxic effects from 14 ethylene glycol known to him there was kidney damage, IS and he observed no kidney damage to the plaintiff. 16 This is not significant in view of the other testimony 17 Dr. Lam testified that certain tests 18 made prior to his examination showed the plaintiff 19 had had some kidney injury but that by the time kidney 20 tests were administered by . him the kidney had regenerated 21 that the kidney can withstand a considerable degree 22 of insult and recovery and that if the optic nerve is 23 atrophied it will not regenerate. 24 There was similar testimony by other 25 experts. There was also testimony that there were o -4 CD BFg0S342 1 'IT 12 known cases of death following ingestion of Ethylene glycol on which there had been no kidney damage. Another of plaintiff's expert witnesses. Dr. Bradley, an industrial hygienist and toxicologist, testified ethylene glycol mist is toxic to human beings. Defendant objected to his competency to testify on the toxicity of ethylene glycol and on its effects on humans. Dr. Bradley had extensive training and experience in the field of toxicology. This included training in chemistry, two years of scientific work in a medical school and many years experience in workinP with chemical compounds. His entire career had been devoted to toxicology. He had viewed several hundred individuals who had been exposed to various kinds of toxic com pounds. He was permited to testify because of his training in chemistry and related fields and his extensive experience in the field of toxicology. This was proper. None of these witnesses stated the reason for the toxicity of ethylene glycol. Through their training and experience which included training in chemistry and related fields, they had personal knowledge of the facts supporting their conclusion. BFG05343 2073701^ :1 . CO..N U U MVONNC. u , > > 13 1 It was not necessary to detail these facts, particularity 2 since defendant admitted ethylene glycol was toxic; 3 but rather this was at the option of the cross 4 examiner. 5 Your Honor, I think that there has been 6 adequate testimony by Dr. Eptstein, both as to the 7 basis upon which he comes to his conclusion and the 8 articulation of it. 9 I would also point out to the Court the 10 language of the Supreme Court in Hamil vs. Bashline, 11 which I believe is in the Smialek case versus Chrysler 12 Motors was extended to'apply to a products liability 13 case. 14 In that case the court said: 15 "It is the plaintiff's burden to prove 16 that the harm suffered was due to the conduct 17 of the defendant. As in many other areas of the 18 law the burden must be sustained by a prepon 19 derance of the evidence. 20 "Whether in a particular case that 21 standard has been met with respect to the 22 elements of causation is normally a question of 23 fact for the jury. The question is to be '24 removed from the jury's consideration only where 25 it is clear that reasonable minds could not 20737013 SPGos344 1T 14 1 differ on the issue. 2 "In establishing a prima facie case, the 3 plaintiff need not exclude every possible 4 explanation of the accident. It is enough that 5 reasonable minds are able to conclude that the 6 preponderance of the evidence shows that 7 defendant's conduct to have been a substantial 8 cause of the harm to plaintiff." "A substantial 9 cause." 10 "Thus, once a plaintiff has established 11 the facts from which a jury could reasonably 12 conclude that the defendant's actions were a 13 substantial factor in bringing about the harm, 14 the fact that some other cause concurs with the 15 negligence of the defendant in producing an 16 injury does not relieve the defendant from 17 liability unless he can show that such other 18 cause would have produced the injury independentl Y 19 of his negligence." \S 20 ' Further on in the opinion the court says 21 this: 22 "Once a plaintiff has introduced evidence 23 that the defendant's negligent act or omission 24 increased the risk of harm to a person in 25 plaintiff's position, and that the harm was in k T O lS L O Z BFG05345 j : .J j 3 i 1 * 1 j s S s A2J 9i 2 a*t | m $ .n9 i% a> 15 -1 fact sustained, it becomes a question for the jury as to whether or not that increased risk 3 was a substantial factor in producing the harm." 4 I believe there has been that degree of 5 testimony in this case, your Honor. THE COURT: Anything else? MR. BOLDEN: No, your Honor. 8 MR. McCANDLESS: Your Honor, I would also 9 like to add very briefly to the arguments along the 10 lines that have been made. I have -11 MR. GRIFFIN: Just so we don't get out of 12 order. All I move to do is to strike two items of testimony. I have not yet made my motion. Mr. Bolden 14 went a lot farther than that. 15 THE COURT: I am assuming there will be 16 other motions. 17 I deny your motion to strike the testimony 18 with extreme reservations on my part that I am 19 making error and I am so stating on the record. But, 20 I deny your motions to strike the testimony. 21 MR. GRIFFIN: Then, sir, I move for a 22 directed verdict under Rule 50 on what is left -- 23 THE COURT: Just a moment. Let's see if Mr. McCandless has something which might be regarded 25 as preliminary to the ultimate motions. M M M CO.i M O M H t, I J . 7 N I * f0>M ST04&602 BFG05346 TT 16 1 Do you have -- 2 MR. McCANDLESS: Yes, your Honor. 3 THE COURT: All right. 4 MR. McCANDLESS: Because I have prepared 5 a motion for directed verdict which includes -- 6 THE COURT: Just -- 7 MR. McCANDLESS: -- a motion to strike, 8 I will withhold handing that up now. i9 I will join in Mr. Griffin's motion on i 4 A1i 10 Mr. Todd with elaboration. 11 As to Dr. Epstein, I would join with Mr. 12 Griffin and add one or two points that I think ought \ 13 to be considered and raised. 14 I think within the context of the 1 j -3 15 qualifications of Dr. Epstein, he was qualified to be `| 4 i 16 a reader of literature and analyzer of risk. He 17 specifically, and I think the Court withheld him from r iM A O CO., OAVONNC. J . I 7 M I . rO IN 741 18 doing so, was not qualified to analyze a cause and 19 effect relationship. So, I think as to those areas, 20 and specifically the cause and effect relationship to 21 this particular cleft. Dr. Epstein must be regarded as 22 outside of his field and not qualified, and that \ 1 23 testimony be stricken for .that reason. 24 Additionally, I think if we take the 25 sum total of what Dr. Epstein has said to the jury. I 20737016 . BfG05347 TT / j: mx a w 17 1 there's nothing in this case with which the jury i i 2 can with any certainty choose a particular witness 3 and believe something and be able to conclude that 4 in fact what the plaintiff offers on causation did 5 indeed happen. 6 We have two areas of speculation here. 7 and the doctor is quite clear that -- and, he corrected 8 me on cross-examination. I recall asking him, are you 9 saying it is teratogenic, and he says, please don't 10 misquote me, I object to these legal tricks. What 11 I am saying, there is some kind of probability or 12 possibility that it could be. So, we start with the 13 first possibility or probability, and that is that it 14 can do this thing at all, and that leaves that margin 15 of error where the jury has to, by no real yardstick, 16 figure out where it hits. 17 Then we take that and we compound it with 18 the area of speculation that the doctor leaves us with 19 when he says, and it is probably some cause down here 20 in Kristine McConnell. So, we have to areas of 21 speculation, two holes through which we can slip, and 22 the jury has to essentially speculate. 23 I add to that that I think we have 24 established throughout the testimony, and essentially 25 from Dr. Epstein's own words, that really there is no BFG05348 1 `IT u o ib ^ o z 1 18 1 scientific acceptability for the proposition that he 2 wants to give to the jury, and that is, that Diazinon 3 can be teratogenic in man. He is only a reader of 1: i: 5 ; 4 literature and he had no literature whatsoever from 5 which he could do that. He acknowledged that there is | 6 no necessary obligation, it is just a personal opinion 7 on his part. 1- 8 Now, certainly the court is an appropriate 9 forum to advance accepted scientific theories. But, 10 when we get into the odd-ball theory, the unique 11 theory, I don't think the jury should be permitted to 1 12 consider such a thing if there is an admission that 13 as to a man who reads literature he has no basis to 14 draw that conclusion. I think that has been brought i 16 out throughout the testimony, that really it is not a 16 rat case, it is a child case, it is a human case; he 17 has nothing to take that quantitative step, the 18 qualitative step, beyond what he knows in rats. And, 19 when we tested him I think we see the entire scheme 20 of things here. He admitted that in other species 21 he just couldn't say a thing because there's no study 22 on that specific species. When asked about man, he 23 again said, well, there is no study on this. I just ii 24 don't know it. 25 He said, what I don't know I can't talk ? ( * * CO.. SAVONIM, I M . O V M t fOOM V40 &Q LZLQ Z V BFG05349 rt 0737019 osesooaa qx puB ' sn pxB ^,upxnow uxa^sda -aa pus aq qqBxui qx qsqw sou5[ Axuo paoq qnq 'euaq AqxxxqBqoxd sxqq qqxw paddxnba aou sx AanC aqq quxqq i pus qeqq Ajxquanb oq pasnja:r aq pus 'sauiaB Aaxd oq paquew qsnC qoqoop aqq 'qng *quaoaad aqnuxui b 'quaoaad owq 'aousqo quaoqad gi Abs pxnoo a 'sn uaAxfi aABq pxnow aq aanBxj auios 3J3H ajaqq jx qeqq Ajxqusnb oq Buisnjaj Axaqnxosqa 'sauixqainos uoxoxdsns a oq qaqq paonpaj aq pus ' AqxtTRTSSod ` Aqxxxqaqojcd saw pxas q TTY *AquTaq:iao 50 aaafiap amos aABq oq saq aoqoop aqq 'sx qsaq TeuoxqxpBjq aqq wax BTUBAxAsuuaj aapun * sqoaCqns Xaoxpani uo qsaq uoxqBsnBO b ux paxxdda aq qsnrn qaqq uoxuxdo 30 AqxiBnb aqq saqoBaq qoqaaqs Aub Aq qx ijuxqq q,uop i `uoxuxdo sxq jo Aquxaqqao aqq uo uoxuxdo sxq jo ssaupunos aqq ux 'uoxujdo sxq ux sdaB pub saxoq Auaui ooq qjax aq asnaoaq aouapxAa aqq Aq paxjxqsnC Axxjassaoau sx qsqq uoxsnxouoo b qosaj pua saxdxouxad oxjxquaxos aqq 'uoxqaoxxddB oxjxquaxos aqq asooqo pua qoxd oq aou qqBxa sxooq aqq saq AxnC aqq quxqq q,uop qsnC I 'AanC aqq oq Buxaajjo bjb aw qaqw puB suoxqaoxjxxanb sxq jo sxsaq aqq uo 'puv qaqq aoj sxsBq ou psq aq iBap aqxnb sx qx Sfuxqq i qnq 'mxq rnoxj Buxqqauios Buxpxq uaaq aABq qqBxui auoamos aqsjoqaxa oq paqusw aq pua 'qnoqa SZ PZ a ZZ IZ 0Z 61 81 U 91 SI Pi Cl Zl It 01 6 8 L 9 S P e z i 61 r f i r i ti \: \1 Et i i 20 1 just a right or wrong proposition for them. They can 2 hit or miss and the doctor, Dr. Epstein, did absolutely 3 nothing to aid them in avoiding that possible error 4 where he gave them no guidance with the terms 5 possibility and probability or suspicion. Thank you, 6 your Honor. 7 THE COURT: With the same reservations, 8 I will make the same ruling. And, I say with the 9 reservations. All I'm dealing with at this point is 10 the question in my mind whether there is that minimal 11 degree of reliability to these two expert witnesses' 12 testimony that could serve as a basis for the jury's 13 conclusion, for any reasonable minds to come to a 14 conclusion. 15 In my own view there is not that minimal 16 amount, but what I am in doubt about is whether those 17 who would review my judgment in that regard might 18 have a difference with me and, therefore, conclude 19 that reasonable minds could accept this kind of testi 20 mony as a sufficient basis for expert opinion. 21 I repeat: In my view, it is not, but I 22 am not certain that that view would be shared by the 23 judges on the Appellate Court, and for that reason I 24 deny the motion to strike. 25 Now, we will consider the other motions. 0t0Z.eZ.02! BFG05351 rt r m i CO.. KTOHNB. I J , I f N l . roM 940 .1 t K7 4 21 1 MR. GRIFFIN: Sir, I move for a directed 2 verdict under Rule 50, incorporating the arguments I 3 have made heretofore and not wanting to repeat them, 4 and adding the following: 6 There is no proof in this case of either 6 negligence on the part of Ciba-Geigy, or proof of a 7 defective product. There is no proof whatsoever that 8 the Diazinon that Ciba-Geigy supplied to Dettlebach 9 and was in turn supplied to Orkin, was in any way 10 defective. 11 There is -- 12 THE COURT: Yes, would you address that 13 point because I -- we have two different claims here, 14 of course: The negligence claim and the 402A claim. 15 And, as I understand AzzareUo versus Black, I have to 16 make a threshold determination whether there is a 17 defective product. 18 MR. GRIFFIN: That is I believe the law. 19 your Honor. 20 THE COURT: All right. But, address 21 yourselves to it, and I want Mr. Bolden to direct himse 1 22 to it because I do have an obligation, as I understand 23 it under Pennsylvania law, in order to eliminate from 24 the jury's consideration the question of unreasonably 25 dangerous, I have to make a determination. Well, tell 20737021 3?G05352 r 'ir 22 1 1 me how I go about that with the standards or lack of 2 standards that have been laid down by the Pennsylvania 3 Supreme Court. 4 MR. GRIFFIN: Well, you start, your 5 Honor, with, where is the proof in this case that I :i 8 there is unreasonable danger. 7 Now, unreasonable danger means that there 8 is a danger known or reasonably known to somebody as ] 9 of the time they did a certain act. As of the time 10 that -- if we are talking a negligence case -- as of I 11 the time that Ciba-Geigy sold its product -- 12 THE COURT: Well, wait a minute. If we 13 are talking Azz are'llo, we are talking 402A. 14 MR. GRIFFIN: All right, sir. 15 THE COURT: Which does not relate to what 16 knowledge anyone had. We are dealing now with a 17 weighing, perhaps, that has to be done in determining M R O O CO., OAVONNC, O J . OTOO* 18 whether a product with certain benefits and some 19 possible or potential dangers can be characterized 20 or labeled as unreasonably dangerous. I guess to that 21 extent the Pennsylvania Supreme Court has left it to 22 the judge to do that weighing and leave out of the 23 jury's consideration any possible contamination by 24 the thoughts of negligence. So, let's -25 MR. GRIFFIN: We're talking strict *5 O <1 w o *v BFG05353 TT 23 1 liability. 2 THE COURT: Yes. 3 MR. GRIFFIN: As far as the product is 4 concerned, has there in fact been shown by the evidence 5 evidence which shows that this product is dangerous 6 at all, and if there is any element of danger to it, 7 whether your Honor, in your best judgment, thinks that 8 is an unreasonable danger. 9 It will be true of any product that is 10 put out. Everytime I step into my automobile I increas 11 the risk that somebody is going to be injured. 12 THE COURT: All right. Let me ask one 13 other question, because you might as well address your 14 arguments as the others will have to. 15 In making that determination do I block 16 out everything that has been presented by way of 17 defense and take only that which has been presented by 18 the plaintiff and make the determination at that point 19 that assuming there was nothing else in the case, would 20 this pass the threshold, or, am I obligated to consider 21 all the evidence in the case; i.e., do I make some 22 kind of factual determination at the outset. 23 MR. GRIFFIN: Well, your Honor, I think 24 the cases don't answer that question with clarity. 25 And, for the purposes of argument here I will just -- K M I I CO.. AVO HNI. IM . N M I FORM M l 207370X3 BFG05354 rt 24 I will dispose of all the evidence in the case which I think`basically should be considered by the judge if in determining this question he really has to determine in his own best judgment, knowing society as he knows it and seeing this product, based on the evidence that he has heard, whether it is an unrea sonably dangerous product. That is a preliminary question that ha to be made. If, however, I eliminated all the evidence and said, let's just take the plaintiff's evidence and see whether it is an unreasonable product, leaving the judge with the problem of deciding whether there's enough evidence here to convince him that it is a dangerous product and, therefore, can be submitted on a strict liability theory. You're right back to where we started, because the very misgivings that you have about this testimony in this case has to lead you to the conclusion that there isn't any evidence of a dangerous product. You have to take into account what the plaintiff's witnesses have said and you have to take into account the basis for their opinions, and if as a judge and a man skilled in the law you say that that opinion, that evidence is really not sufficient to support an opinion like that, or if you say that BFG05355 20737024 25 ! t opinion, as far as the law is concerned, doesn't 2 really come up to the quantity that the law requires, 3 and 1, therefore, have grave misgivings about this \ 4 proof, how can you make a determination that the 5 product is defective? And, that is a preliminary 6 question that must be resolved, your Honor. The 7 system doesn't allow that to be submitted to the jury. 8 THE COURT: All right. Now go on to the i 9 negligence aspect, because that is a totally different i 41 3. 10 question. 11 MR. GRIFFIN: Well, sir, the -- I just 12 think there.is no evidence of negligence anywhere along 13 the line. We don't even have evidence of a defect 14 to start off with to see -- 15 THE COURT: Well, I will make an argument 16 for Mr. Bolden. I am going to anticipate. You had 17 NIOSH, you had this other literature that showed that t l H U IM U 18 there was some possible danger at some levels, shouldn' t T l 'SNNOIVB ' H n u 19 you have done something or said something. Query, 20 is any question for the jury. Does that provide a 21 sufficient basis for a question for the jury. 22 MR. GRIFFIN: No sir. I don't think it 23 provides a sufficient basis because, again, by defini 24 tion, it is not a question of whether there may be a 25 danger or whether there is a possible danger, or 20737025 BFG05356 1 I 26 1 whether somebody even said there was a danger. The 2 said always goes only to notice. That is all it goes 3 to. And, if there is proof of an underlying danger, 4 then there is some significance to what somebody said 5 about it because then you have notice for a negligence ! case and some reason that the defendant should have 6 7 acted on it. But, there still has -- you can't prove i 8 the underlying danger by the notice. 9 THE COURT: Well, but you have testimony, ;j 10 do you not, of Dr. Epstein that certainly they should i i 1 have warned pregnant women not to get within 100 miles 11 12 of this stuff, just to -- I am exaggerating, of course. 13 He never mentioned how far away. He just said they 14 should not be exposed at all. MR. GRIFFIN: Well, sir, where is the 15 16 evidence that the industry knew that, or ever brought 17 to the industry's attention? PCMCAO CO.. flAVONNC. I U . I T M I rO IH 94 18 THE COURT: No, no. What he said was -- 19 what he said was, that in light of this literature, 20 reasonable -- without using the term -- that a 21 manufacturer should have concluded that -- 22 MR. GRIFFIN: I now go back -- you are 23 simply bootstrapping by the literature, which is a 24 fundamental problem in the case. You can't do that. 25 You can't prove a negligence case by the introduction 20737026 BFGO5357 i fk t M a a > p '8 27 1 of hearsay documents that even aren't authoritative 2 in their field. 3 THE COURT: Well, for the moment, those 4 documents are in evidence. So, with all the reservation 5 I have, nevertheless, for the consideration of this 6 motion we have to consider that evidence. 7 MR. GRIFFIN: I would simply say to your 8 Honor, where is the evidence of negligence. The argu 9 ment is that we should have acted on a 1968 study. 10 All of this all boils down to is just one study. We 11 should have acted on that, even though it is all sub 12 mitted to the regulatory agencies. The regulatory 13 agencies have passed on it all, all the teratologists 14 in the world, as far as we know, every one of them 16 has passed on it and discarded it, and simply because 16 Or. Epstein misreads it, that that somehow creates a 17 basis for a negligence claim. That is about all it 18 boils down to. 19 There has to be, in all these areas, your 20 Honor, there has to be a reasonable threshold, because 21 if you follow any argument that a lawyer makes, or the 22 law makes, you can always get to the reduction ad 23 absurdum where in theory you can see a structure of it 24 but it is silly. And, the Court is the guardian of 26 that, and.it always has to be. If it is not, if it is iz o ie io s BpG05358 It 28 -- if all you have to do as a lawyer is to expound words until you can get a formula that makes it sound as if there might be something, and you submit that to the jury, then all cases go to the jury. I have on further thought, your Honor, in a case of this sort. It is really important because, you take a witness like Dr. Epstein who is currently advertising through the legal profession his services as a teacher of how to be an expert witness. He sends out these brochures and sets up a course on expert witnessing -- THE COURT: No, no. That is not before me. MR. GRIFFIN: I know it is not before you but I am saying, things like that do occur -- THE COURT: I will not consider that. Now, confine yourself to the record. My only interest in Dr. Epstein is that which was presented from the witness stand, and I don't know anything about these other matters and I don't want to know. MR. GRIFFIN: Every time, every time that a court, be it because of expediency or because the fact you spend a good deal of time on a case, and they say, well, this preliminary question, there might be BFG05359 rt 20737028 l 11i ii : A= iftii 29 % 1 something to it, every time that is done, if there 2 might be something to it, it is just like the proof 3 in this case. The fact of the matter is, for the 4 system to work properly a judgment has to be made 5 that there is something to it. 6 THE COURT: Okay. 7 How, this relates to cause and effect for 8 Kristine's injuries, and now address yourself -- I 9 suppose your motion goes also to the claim of emotional 10 distress, et cetera. 11 MR. GRIFFIN: Well, I have one further 12 just short argument to call to your Honor's attention. 13 As far as proof of any underlying claim, 14 be it defect or be it negligence, the plaintiffs are 16 bootstrapping, they're trying to argue from cause and 16 effect cases and say that there might be something 17 in these cases, and if your Honor extends the law in 18 the Hamil and Bashline area on causation, then they 19 have got their case proved. But, they don't. That 20 is only a causation element. You can't use the 21 causation line of reasoning to prove the underlying 22 cause of action. 23 The underlying cause of action has to be WO24 proved and proved independently. The Hamil-Bashline u 26 argument that they are making, your Honor, assumes -o C BFG05360 P fM A ft CO.. ATOMIC. N A I I H I | fOBM )M 30 1 every one of those cases assumes there has been proof 2 of either the underlying negligence or the underlying 3 defective product. 4 THE COURT: There's no question. It 5 starts with the proposition that when it has been 6 shown that^t^iere^is the -- that it is a contributing 7 factor, that's -- I accept that. I understand that. 8 Our problem here is whether there's any 9 proof of its being -- being a contributing factor. I 10 understand that. 11 MR. GRIFFIN: I already, sir, addressed 12 in the motion for directed verdict at the end of the 13 plaintiff's case, the emotional distress problems. 14 THE COURT: This is the time to repeat it. 15 I want everything summarized in light of the total 16 -- the totality of the evidence that has been presented 17 MR. GRIFFIN: All right, sir. Whatever 18 may be said about spraying and emotional distress, 19 does not apply, it seems me, to Ciba-Geigy in this 20 case. Just stripping all the other arguments aside. 21 The only thing that the proof shows was 22 used of Ciba-Geigy's on the 26th of March was Diazinon 23 dust, and there is not one word of evidence in the 24 case that that dust had anything to do with the 25 situation in the building. There's no one word of ! 20737030 BFG05361 IT i ii 3 3 K .\ I I 31 1 evidence in the case that one speck of that dust ever 2 got into the atmosphere anywhere. So that as far as 3 the 26th is concerned, we are uninvolved. 4 The only other day that they point to is 5 the 7th. Now, as far as the 7th is concerned, one 6 thing is absolutely sure is that Diane McConnell 7 didn't witness any spraying that day, and that to the 8 extent that spraying plays into this so-called 9 emotional problem, Ciba-Geigy's product had nothing 10 to do with it. 11 So, the underlying emotional problem 12 case seems to me to just disappear as far as we are 13 concerned. 14 If there is any thread to it at all, 15 if your Honor sees it, then I would go back to the 16 basic argument on the law that we submitted to your 17 Honor, I submitted a short brief on it, that the 18 plaintiff's attempt here is to simply stretch the 19 law as far as it goes. And, there is no basis for 20 claim of emotional distress on this record. 21 THE COURT: Thank you. 22 Mr. Bolden, I will ask you to respond 23 to Ciba-Geigy's argument first and then we will take 24 Mr. McCandless. 25 MR. BOLDEN: Your Honor, on the issue of leoLeioz BFG05362 r 'it l 32 1 negligence, I believe there is evidence from which the 2 jury can find not only notice, that is the 1978 NIOSH 3 report, not 1968, but a failure to act upon that 4 notice with knowledge of that notice at a time when 5 action could have been taken to prevent the spraying 6 in the presence of women of childbearing age. 7 THE COURT: What about 402A? 8 MR. BOLDEN: On 402A, your Honor, of course 9 the question of what the Court has to consider or how 10 it is to go about considering, has not been made totally 11 clear for me from the decisions of the Court. 12 I would not read the Azzarello case, or 13 the Berkebile case as requiring, even requiring a 14 risk versus benefit analysis in a failure to warn ( 15 situation. 16 THE COURT: Your problem is this: You 17 see, we used to use the nice homely illustrations that 18 even a kitchen knife has a potential for danger, and 19 before the Pennsylvania Supreme Court eliminated un 20 reasonably dangerous, it made a nice easy for us to 21 illustrate to the jury how they are to come to the 22 conclusion of whether a product is unreasonably danger 23 ous or not. By looking at the things that were around 24 them every day, a television set with all the possible 25 dangers that are inherent in a television set, or N H M ( f t . . AAVOHNC. M J . 99M S POftM f Z Q L L \)Z BFG05363 I 33 1 electrical equipment, or an automobile with the 2 potential to do .all the harm that it can if it is not 3 used in the way it is intended, et cetera. 4 Then the Supreme Court said, oh, that is 5 a terrible thing to do, to have the jury consider 6 negligence concepts and use the words "unreasonably 7 dangerous." So you, Mr. Trial Judge, make the deter 8 mination, and once you do, that says to the jury, yes, 9 you may consider whether this product is defective. 10 Now, somebody has to make the determination 11 whether this kitchen knife is a defective product for 12 the purpose for which we are talking about in a 13 particular case. Don't I have at least that obligation 14 in this case? , 16 MR. BOLDEN: I believe so, your Honor. Of 18 course a defective product includes a product for which 17 adequate warnings have not been provided. 18 THE COURT: I understand that. And, if 19 the evidence were such that you could show that it had 20 .the potential for danger that Dr. Epstein suggested 21 could be present from a single -- and, I don't know 22 whether he used molecule or milligram or what -- 23 MR. BOLDEN: Molecule. 24 THE COURT: -- that the presence of some 28 thing, some trace or some quantity which he refused roaM |4t 20737033 BFG05364 TT 34 to specify, of Diazinon in the air, then presumably it is defective simply from being in the atmosphere, and I think we could all agree that that would be a most unreasonable, if X am permitted to- use that term, interpretation of this product. Quite apparently it has been used for some number of years in the presence of human beings with no untoward effect except for what appears to be an -- what may be an untoward effect in this case. MR. BOLDEN: The problem with that is, once we have to start analyzing it in terms of past history and in terms of whether or not there has been other known cases, we get back to this problem of whether or not there is an epidemiologic study which confirms the teratogenic effect. And, I believe as a matter of policy the whole toxic tort issue is on the threshold of where is it going to go, and once we go to that level it will be virtually impossible to prove a toxic tort case. And, I believe that is what Hamil vs. Bashline type of reasoning was designed to deal with. THE COURT: No, I don't think so. Well, Mr. Bolden, the one thing that has been working in your favor is that I have invested, you have invested, we all have invested, a number of days BFG05365 20737034 35 in trying this case. And, I was tempted to submit all of these issues to the jury. But, on the matter of defectiveness, I cannot, with any degree of intellectual honesty, say that there is sufficient evidence in this case that this product is defective to permit it to go to the jury. I am evaluating, yes. I think I am obligated to. I am evaluating Dr. Todd's testimony and Dr. Epstein's testimony, and it had a degree of weakness even at the end of the plaintiff's case, that made it terribly suspect.. But then with the balance of the testimony came in, it simply eliminated in my mind to the extent that I have any obligation here on defective ness, as to the -- whether a jury should speculate that this is a defective product, and in conscience I cannot submit it to the jury. So, the 402A claim I grant Ciba-Geigy's motion for directed verdict. On the negligence-claim, you are pointing out to the only evidence that there is, which is the one or two statements in the literature, and in particular the NIOSH, that it may be-- may have some degree of danger. But, I think that all of;the evidence that has been submitted, including Dr. Farrow, would indicate that this was out of someone's excessive BFG05366 20737035 36 J caution, and we don't even know who the authors of that were, the statement was or were. And certainly the evidence has convinced me that the studies that were supposedly the basis for that statement simply would not support a manufacturer with its own studies and its own interpretations that what they did was unreasonable under the circumstances in the minds of any reasonable person. And I think that this jury would probably -- well, I won't say probably, would almost certainly come to that same conclusion because I don't think reasonable minds could differ on this. And again, I have to worry about whether I may have to go through eight more days of trial because those above me may disagree and say, oh, there was enough here for a jury to deal with. But, I think I would rather take the chance that I have to retry the case than to live with the intellectual dishonesty that I would feel if I were to say there was enough evidence here of negligence -to submit to a jury. I grant Ciba-Geigy's motion in its entirety, because without this cause and effect, and without any evidence of spraying on March 26th, which is the only incident to which Mrs. McConnell can attribute her emotional distress, I cannot allow any I S tO ltL O BFG05367 37 1 part of the diaim to remain against Ciba-Geigy. 2 You can understand the natural sympathies 3 that the Court has in a case like this, but in the 4 final analysis, and at the bottom line we do have 5 an obligation to all litigants, putting aside sympathy 6 and personal feelings, to come up with what we consider 7 the intellectually honest answers, and that 1 think is 8 the one in this case. 9 Mr. McCandless. 10 MR. McCANDLESS: Your Honor, would I 11 assume correctly, your Honor would grant the same 12 motions on the same bases to Orkin on a 402A claim and 13 a negligence claim relating to causation? 14 THE COURT: Well, you will have to spell 16 out to me in your argument to what extent what I have 16 ruled with respect to Ciba-Geigy necessarily applies 17 to you. There may be that complete similarity, but 18 I want you to spell it out on the record so there is 19 no question in anybody's mind. 20 MR. McCANDLESS: Very well, your Honor. 21 Initially I would like to hand up a 22 written motion for directed verdict which does have 23 a memorandum of law attached. 24 (Document handed to the Court and counsel 25 for Ciba-Geigy and for plaintiffs.) r 'it 20737037 ar* 38 1 Your Honor, of course on any products 2 liability claim we are talking about, at least for the 3 cause of the cleft pallet and cleft lip, the same 4 product. .There is no allegation, no proof that any 5 product other than Diazinon was the cause of this cleft lip and cleft pallet. 8 7 How did the exposure come about? Well, 8 it came about by Orkin. But, nonetheless, the question 9 is, did Diazinon do it. To tfrat extent, the motion that I make 10 ** V. on behalf of Orkin for directed verdict is the same 11 12 motion that Ciba-Geigy has made, and that is, that ther 13 has been no proof that Diazinon has caused this 14 particular cleft pallet. 15 Next, X find that as to any theory of 16 negligence against Orkin, there may be a couple of 17 them. One does directly overlap with Ciba-Geigy's 18 motion, and that is, is there any negligence as it 19 applies to that particular product in its use as 20 a pesticide in these circumstances with the inherent 21 question of, is there any proof that it can cause the type of defect claimed here. I think to that extent, 22 23 the extent that any negligence would attach to Orkin, 24 or be alleged against Orkin in the use of that 25 particular product for a defect or problem caused by BfG5369 ' 'IT CO.. OAfONOK. 20737039 i .! * ! .1 3 * { i 39 1 that product, the same lack of testimony, lack of 2 evidence obtains, and I would move and say that is the 3 same similar argument. 4 Also, we have potentially an argument 5 against Orkin, that Orkin was in some way wrong in 6 what it did; independent of the product it used, there 7 was something wrong about its procedures. There has 8 been absolutely no evidence in this case that says 9 Orkin did anything that was inconsistent with appro 10 priate standards. I don't think there is any evidence 11 in this case from which such an inference could be 12 drawn. There is no evidence in the case of the plain 13 tiff, although it may have been asked if an individual 14 were licensed, or one or two other things; no expert 15 testimony, no regulatory evidence came in here to say 16 it was -- that was a basis of any wrongdoing on the 17 part of Orkin. 18 So, we see that there is no independent 19 negligence on the part of Orkin independent of a 20 -potential claim that the use of Oiazinon was wrong. 21 All the evidence suggests is that Orkin 22 -- and, it is all on the defense case, I would suggest 23 -- that Orkin acted in accordance with the appropriate 24 standards and there has been nothing from which the 25 jury can judge this any other way. BFG05370 20737033 40 i Then we come to the incident of March 26th. That has a couple of very peculiar aspects to it. March 26th caused no physical injury to Diane McConnell. There has been no testimony that anything Orkin did was the medical cause of the sickness those other people encountered. If they in fact did, and it was all essentially hearsay evidence, no one came in here and said, I was sick and no doctor came in here and said this sickness was caused by Orkin. Granted, in the time relationships one did -- the servicing was followed by this incident. However, certainly, as we have seen in this case, science can differ and the jury does not know what the illnesses were or may have been; the jury does not know what the causes of those illnesses may have been; we don't know whether it was a mixture, a hysteria or anything to do with pesticides. It was merely a coincident event in which the entire world was spinning and go on at the same time as very many other contem poraneous events, and we ought to have had some expert proof to show that incident in any way related to pesticides. There being no proof of that, what claim can be asserted? First of all, for Diane McConnell, there BFG05371 0 I 41 1 is no proof at all she was made ill that day. 2 Certainly she didn't go to a doctor, didn't seek 3 medical treatment and left that day. There is no 4 suggestion that in any way disturbed her immediately 5 thereafter or until any time she had any emotional 6 or psychiatric distresses of any sort until the time 7 the baby was born, and then Dr. Toborowsky came in and 8 he says, well, he thinks it is a combination of things 9 with pesticide and with having a defective baby being 10 born. 11 But, the doctor couldn't tell you when in 12 the world this thing, this sickness he diagnosed, may 13 have begun, and part of his essential definition was, 14 what I found had to have begun within three months of 16 something. But, he dated it -- at the earliest he 16 ever dated it was September -- rather, August 1979 17 when the baby was born, or late July; he never related 18 it back to March. We have that failure of his own 19 testimony to relate anything specifically to pesticides 20 in general, or to the specific incident of March 26, 21 1979 -- '78 -- '79, excuse me. 22 Then there is the question of absent .11 23 injury, absent any physical injury can an independent 24 claim for mental or emotional distress be established 25 on this basis. BFG05372 fC M 141 BAVOMHt, MO. I I M NMM 20737ft-?! 42 I, at an earlier time, adopted the Ciba-Geigy memorandum of law on that point. I would merely reiterate that that continues to be my position, that Pennsylvania law has not yet said, and I doubt that it ever will, that for plaintiff's own peculiar reasons she may choose something and she may say it upsets me, and then she may say that that's enough to give me a cause of action, although she is only upset and not physically injured. I think the asbestos cases have shown pretty clearly that where you are merely exposed to something -- I'm not saying there was an exposure here -- without physical injury you're not entitled to make that mental distress claim. At any rate, there is no case that says independent of a tort can this mental distress be claimed. There must be some actionable basis. Mental distress is in this case only an element of damages truly. It is not the actionable incident. What was actionable about March 26th, what was actionable about anything Orkin has done at Amtrack. There has been no evidence that Orkin has ever done anything wrong. In fact, Mr. Steiger who came up here and testified acting on behalf of EPA and its associated state organization, said that after his investigation there was no wrongdoing found. BFG05373 20737042 43 So, what does the jury have to -- for the March 26th incident. What can the jury say orkin did wrong?. And, I put on experts -- THE COURT: Well, there is evidence that there was spraying that day and a number of people became "ill". MR. McCANDLESS: Right. But certainly, what is the legal link and the causal link to those two events. If people got sick after spraying occurred is that in itself negligence? There has been no evidence that something was done improperly that day. Mr. Steiger himself acknowledged that I had an incident here, people went to the hospital but I did an investigation and there was no wrongdoing foun i; nothing wrong. And, we don't know that the sickness was caused by the pesticide. No one has made that link other than by time. And, I think that in this type of case, we don't know what kind of sickness was involved, we don't know truly what the symptoms were, we don't know who the people were, you certainly have wonder can we relate this and can the jury speculate that that event had anything to do with the sickness that day. There has been no evidence of that. It can't be on Diane McConnell's part. We would have to wonder BFG05374 20737043 h m h c,, savonnc. i j , *tmi . roan fu 1 ii .-'"s 44 1 about the other people. There has been no evidence 2 as to what happened to the other people truly. 3 And I think when your Honor ruled on the 4 objection raised to that type of evidence, you said, 5 well, it may have some limited purpose if we find out 6 that it was an event that led her to believe something. 7 But that begs the question to whether there was an 8 independent legal action for anything Orkin had done, 9 and I find there is just absolutely no evidence that 10 Orkin has done anything other than act in accordance 11 with the guidelines of the regulatory agencies and 12 good pesticide control practices; just no evidence 13 to suggest they have done otherwise. 14 Even in the March 26th incident, even 15 then nobody came in here and said, you guys did it 16 wrong. There is something wrong here, you were negli 17 gent. Nobody said that. The fact of the matter is, 18 no wrongdoing was the only evidence that came out. 19 So really, I don't think -- nothing here 20 is actionable because there is no physical injury, therje 2T is no evidence that there was anything that could be 22 regarded as negligent, or other type of actionable 23 conduct on the part of Orkin. 24 And, the claims as they relate to the 25 Diazinon, or the cause of the cleft pallet and lip. 20737044 BFG05375 ) i 1 J 4I '4 i .1 t-. r i N M M .. ATOMIC. * J . H N I * l 45 1 are identical to those raised by Ciba-Geigy because it does relate specifically to the product and the proof 2 directed to that particular product. 3 So, absent any sufficient evidence to 4 5 link that product, I don't see how Orkin can be found to be liable on any count on this claim since there 6 is no injury demonstrated as a result of anything 7 Orkin had done. a For those reasons and the reasons I have 9 raised previously in my request that the testimony of 10 various experts be stricken, I would ask that the 11 Court award a directed verdict in favor of Orkin in 12 this case. 13 THE COURT: Mr. Bolden. 14 MR. BOLDEN: In light of the Court's 16 ruling as to Ciba-Geigy, the only issue that I think 16 I can appropriately address is the issue related to 17 the March 26 spraying. 18 As to that issue, I think that Orkin 19 puts forth a very anamolous and very interesting 20 argument. 21 By analogy I would suppose that Orkin 22 would take the position that if they were to take 23 Diane McConnell and lock her up into a room with 24 Agent Orange for about three days and then let her out, 25 BFG05376 tr 207370-15 46 1 and she were to say that she was distressed, that she 2 might get cancer, their answer would be, well, there 3 is no proof of that. We just locked you in a room -4 THE COURT: No, no. I think a more 5 apt argument would be -- I mean, if you could say that 6 she was locked up in a room with Agent Orange and was 7 told that she was locked in a room with a Agent Orange 8 and was told that there had been many suspicions of 9 the affect that Agent Orange can have, and if she 10 then had a nervous breakdown or suffered some emotional 11 impact, then perhaps we might have more analogous -- 12 MR. BOLDEN: I think we have that in this 13 case, your Honor. I think what we have -- 14 THE COURT: All right. 16 MR. BOLDEN: Z think what we have in this 16 case is precisely that. 17 THE COURT: All right. Then I think you 18 had better argue that -- 19 MR. BOLDEN: I think we have a situation 20 in which -- 21 THE COURT: You will recall as part of 22 my hypothetical I said, if she was told at the time 23 all this happened. Because what we may have to deal 24 with in this case is the temporal relationship of 25 one event with another when the alleged onset of BFG05377 M N C A A CO.. BAVOHHC* MU. 09001 ;0737046 i 47 1 emotional distress came about, and in relation to 2 what -- you know, this is what you have to argue. 3 MR. BOLDEN: I understand, your Honor. 4 I understand. 5 What we have here is a situation in which 6 a jury, I believe, could find that Orkin in a negligent 7 and indeed reckless manner sprayed this in a manner 8 which could be -- , 9 THE COURT: Excuse me, what was the 10 evidence of the manner of -- 11 MR. BOLDEN: The evidence was that they 12 were spraying it on the woman next to Mrs. McConnell, 13 on her coat, on her pocketbook if I'm not mistaken; 14 they sprayed it into the holes beneath the computer 15 terminals located no more than 12 inches away from 16 these people; that the man went around spraying it all 17 over the carpet, all over the -- over that particular 18 workman into the computer holes near these people. I 19 believe that when 46 people are carried out -- 20 THE COURT: No, no, excuse me. And then 21 who testified that that was improper? 22 MR. BOLDEN: Your Honor, nobody testified 23 that that was improper as an expert. I think this is 24 the kind of conclusion that a jury can make based on 25 their own common experience and their own common sense. BFG05378 f I H U I CO.. OATOHNC. I J , OIOOI * f f t l N f 20737047 48 1 You have almost a re ipsa loquitur 2 situation here. You have these people being carried 3 out. You have the fact that the labeling, the labeling 4 says that they are not to get it into a situation where 5 people can inhale the pesticide, or get it onto people. 6 And, that is precisely what was happening in this 7 situation. The jury can infer that they inhaled it, 8 the jury can -- the direct testimony is, it got onto 9 somebody. Diane McConnell was there and Diane 10 McConnell was in the room and was exposed to it at that 11 time. She -- although she was not herself specifically 12 sickened on that occasion by the pesticide, there is 13 clear evidence that she was emotionally upset by the 14 fact that the supervisor told her to get off the floor 16 because she was pregnant. Another person told her to 16 go get a blood test. Her refusal to take the blood 17 test is just evidence from which the jury can find that 18 she was emotionally concerned about the effect it would 19 have upon her' baby. 20 The traumatic event that occurred there 21 after was the birth of her baby and her sight of that 22 baby with the deformity that the baby had. 23 Now, I don't believe that there is any 24 thing in either the Sinn case or the Neiderman case 25 which requires a physical impact. BFG05379 H M M CO.. OAVONNtf. IM . OVOOI f O M 20737048 49 What Judge Takiff, in the Hughes case indicated was that one must be able to show under his interpretation of Pennsylvania law that there is a physical injury. A physical injury can either be a physical injury which proceeds the traumatic event thatj produced the emotional stress, or it can be a physical injury which results from the emotional stress. Now, in this particular case there is clear testimony from which the jury can find that Diane McConnell as a result of the emotional stress that she had because of these incidents did have physical symptoms. The spastic colitis to which Dr. Knouse testified and to which Toborowsky testified to as being the psychomatic conditions which he found resulting from the emotional stress. I might also point out that the defendant' own witness. Dr. Jackson, pointed out that Mrs. Mc Connell's concerns and her fears were reasonable fears, not from a scientific standpoint but from the stand point of a person in Mrs. McConnell's position confronted with a situation in which she found herself. It is true that in the Sinn case and the context in which the court was speaking in Sinn, you are dealing with the temporal relationship of experiencin BFG05380 rT 20737049 50 t an emotional upset of watching a specific traumatic 2 event. That particular analogy obviously does not 3 exist in a toxic situation or a creeping disease 4 situation, the asbestos situation. But, nothing that 5 I read in Judge Takiff's opinion ruled out the right 6 to recover for the emotional distress if it can be 7 shown that the emotional distress and physical injury 8 resulting from that emotional distress related back to 9 the exposure. Here we have that same situation. 10 THE COURT: Well, but the only physical 11 injury that you are referring to is that which resulted 12 from the emotional distress, isn't that so? 13 MR. BOLDEN: That is correct, your Honor. 14 THE COURT: So, there was nothing that 15 preceded that. What you are saying is that all of the 16 symptoms that she encountered after having this 17 emotional concern, and we will accept Dr. Toborowsky's 18 testimony, that it certainly was not abnormal, it 19 was even normal for her to look around for some 20 explanation. And then having done that, she became 21 emotionally concerned and disturbed about what might 22 have caused the defect in her child. 23 Once she developed the emotional concern. 24 then certain physical consequences flowed. But, I 25 think that simply from reciting that we can show how BFG05381 U 1 0 N N I. N.J. >MS 20737050 51 1 different that is from having a physical impact 2 accompanied by emotional distress as compared to 3 physical consequences of emotional distress. 4 Now, the closest case to support your 5 position -- and, I don't remember the name of it -6 it is the one in which the Supreme Court by divided 7 vote let stand a ruling of a lower court that refused 8 to extent viability in the case of the father who 9 learned -- was the father who learned of the child's 10 death. 11 MR. BOLDEN: Yes. 12 THE COURT: Now, that would have been an 13 extension of the Sinn and Burd cases. It was not 14 accepted, but even there you could see that that is 18 a possibility for some little extension of the emotional 16 distress accompanying a traumatic event to someone 17 within the close range of family relationship. But, 18 I think what we are talking about here is such an 19 extension of that that it would require the Pennsylvania 20 courts, I think, to announce it before I could apply 21 it in a case here. 22 I do not consider the cases the Pennsylvani; 23 court has come up with up to this point as predictive 24 of liability for emotional distress which relates back 25 in time to some event which may or may not have been BFG05382 20737051 52 1 accompanied with some physical distress. ' 2 In this case, from the March 26th incident. 3 as I recall the testimony, there is absolutely no 4 evidence of any distress to Mrs. McConnell herself. 5 There was apparently some effect, even if we can 6 supply cause and effect to the spraying, to some 7 persons, someone in particular who was across the 8 aisle from her at the computers behind her, and that 9 she herself later went, I believe, to that same 10 station. But, nothing to indicate that she had any 11 phsyical effect whatsoever that day. 12 She did testify that she didn't have the 13 blood test because she didn't want to know, so there 14 was a suggestion there of some possible concern at that IS moment, but, I still can't relate it to any physical IS impact of any kind. I have to draw the distinction 17 even with the case in the Third Circuit which had to 18 do -19 MR. BOLDEN: The Plummer case. 20 THE COURT: -- Plummer case is right. 21 The tubercular bacilli which the evidence was 22 actually invaded the body of these people and then 23 gave rise to concerns. And, I can accept that, and 24 if we had had evidence of the invasion of the body 25 by a substance, even it turned out ultimately to be / PSNBAB CO.. SAVONNC. H 4 . M M I fOBM 94* Z S i> L 2 L d Z BFG05383 S3 1 benign, but some invasion, we have no evidence of any 2 of that. 3 And, again most reluctantly, I don't 4 believe there is evidence to show negligence in the 5 manner of spraying. There is a deficiency in cause 6 and effect between the spraying and the untoward 7 effects that even these other persons suffered, and I 8 have no idea what the nature of their "illness" was. 9 It is just too much in the order of speculation to 10 allow a jury to conclude. And then finally in this 11 instance the time relationship of the emotional dis 12 tress which apparently built up over a period of time 13 after the birth of the child, and apparently was 14 fed by various TV programs and so forth, all of which 15 were following the event of birth, which was a con 16 siderable period of time after all of the events 17 chargeable to these defendants. 18 So, again, with a great deal of reluctance, 19 but in the exercise of what I consider the intellectual 20 honesty that is required, I have to grant the directed 21 verdict, motion for directed verdict for Orkin 22 Exterminating Company. 23 MR. BOLDEN: Thank you. 24 THE COURT: I have not attempted to 25 cover exhaustively all of the reasons, and I will simply BFG05384 20737053 54 1 leave it to counsel to, when and if this matter goes 2 up on appeal, to review all of the various elements 3 that were involved in this case. 4 I had particular concern, just to go back 5 and add what I can, I had particular concern over the 6 lack of evidence with relation to the effect of -- the 7 most possible effect of Diazinon as a teratogenic 8 substance, because it seemed to rely almost completely 9 on Dr. Epstein's interpretation of the literature, and 10 by his interpretation we were left to conclude that 11 it did not really matter how much exposure there might 12 have been by Mrs. McConnell to Diazinon. And, the 13 evidence appeared to be, in the light most favorable 14 to the plaintiff, that on the critical date, December 15 7, 1978, at the very most Mrs. McConnell might have 16 entered the premises to get her paycheck, she might hav 17 been on the premises as much as one hour, most likely 18 in the area where the personnel office was, considered 19 in the light most favorable to the plaintiff, Mr. Todd 20 -- Dr. Todd's testimony would indicate that this sub 21 stance was immediately generated throughout the entire 22 premises, and that it was probably at a concentration 23 level of .2, and I have forgotten what the formula is, 24 but, .2, a concentration level which is so far below 25 the levels at which there was any effect on rats that BFG05385 55 1 I just could not allow a jury to conclude, ndr could 2 I conclude, that there was any evidence of the defect iv 2- 3 ness of this product. 4 There are many other things that I could 5 cover, but I think I had better just leave it at that 6 and leave it to counsel to expound in future pro 7 ceedings . 8 I will have to call the jury back in, and 9 I feel an obligation to explain to the jury, even if 10 only briefly, what I have done and why. 11 If counsel have any objection, you had 12 better so state now. 13 Bring the jury in. 14 (Whereupon the jury entered the courtroom 15 at 12:28 p.m.) 16 17 18 19 20 21 22 23 24 v 25 BFG05386 K N C U CO.. OAVOMMi* H J . I T M t f O M 740 20737055