Guilbeau v. W.W. Henry Co. ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-40691
_____________________
OLAN J. GUILBEAU, SR., Et Al.,
Plaintiffs-Intervenors-Appellees,
Cross-Appellants,
versus
W. W. HENRY CO., Et Al.,
Defendants-Appellants,
Cross-Appellees.
ELWOOD STEVENS, Et Al.,
Intervenors-Appellants,
Cross-Appellees.
_________________________________________________________________
Appeals from the United States District Court
for the Western District of Louisiana
_________________________________________________________________
June 11, 1996
Before REYNALDO G. GARZA, BARKSDALE, and EMILIO M. GARZA, Circuit
Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
The linchpin of this appeal is whether plaintiffs presented
evidence of product defect sufficient to withstand judgment as a
matter of law. W. W. Henry Company and its insurer, Truck
Insurance Exchange, challenge a judgment on a jury verdict awarding
$2 million to Olan Guilbeau for chronic toxic encephalopathy
allegedly caused by exposure to a carpet adhesive manufactured by
Henry, and $900,000 (remitted to $50,000) to his wife, for loss of
consortium, contending that there is insufficient evidence of
product defect and causation, and, in the alternative, that a new
trial should have been granted because the Guilbeaus' attorneys
deliberately appealed to jury prejudice by making inflammatory
arguments and referring to inadmissible evidence. Guilbeau's wife
cross-appeals the remittitur; the Guilbeaus cross-appeal the award
of prejudgment interest, and challenge the exclusion of certain
evidence. Intervenors Elwood Stevens and his law firm, previous
counsel for the Guilbeaus, appeal from the district court's refusal
to award them any attorney's fees; the Guilbeaus cross-appeal the
allowance of intervention and the award of expenses to that firm.
Because no rational juror could find that Henry's product was
defective, the judgments in favor of the Guilbeaus and the
intervenors are REVERSED and judgment is RENDERED for Henry.
I.
From the 1970s until August 1986, Guilbeau worked as a mobile
home salesman for various entities in and around New Iberia,
Louisiana. At the end of 1982, after his mobile home business
failed and he took personal bankruptcy, he returned to work for
Mobile Home Brokers (Luv Mobile Homes) in New Iberia. In 1985, he
began complaining about an unpleasant odor in the mobile home
office in which he worked.1 Mrs. Guilbeau testified that the
One of Guilbeau's diaries states:
At the beginning of my employment at the New
Iberia Sales Lot I brought to the manager's
attention that there was a smell in the ...
[o]ffice.
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mobile home was parked in a low area, and that the smell from
underneath it would seep into Guilbeau's office from an improperly
sealed air conditioning duct; she stated that it was a rotten
smell, but never made him sick.2 The mobile home had been
....
I have been complaining ... for over a year,
but ... did not know what this odor was or
where it was coming from. In accordance to
[sic] the information I have received lately
that when particle board gets wet it releases
... chemicals which is called off-gasing ...
when its [sic] hot and humid ... [and this]
off-gasing [is] dangerous to human health.
There was evidence that new mobile homes have strong smells, from
formaldehyde, that irritate the eyes and nose.
Two diaries, and a copy of another diary containing Mrs.
Guilbeau's handwritten additions, were admitted into evidence.
Although one of the diaries contains a cover page which includes
the statement, "I want all hereinwritten presented as evidence",
Mrs. Guilbeau testified that the diary was prepared in 1987 or
1988, for the purpose of trying to get medical help for Guilbeau,
and not for the purpose of litigation. And, Mrs. Guilbeau
testified that unusual phrasing (for example, "Due to the extreme
buckling of said mobile home particle board flooring in said lobby
and restroom area in said Mobile Home Office, ...") was just the
way her husband talks.
In a January 1993 minute entry, the district court stated
that, upon advice of all counsel, Guilbeau was unfit as a party
plaintiff; counsel were given 60 days to substitute a curator, or
to show cause why Guilbeau had the procedural capacity to stand
trial. An amended minute entry conditioned the continuance on
Guilbeau's examination by a psychiatrist to determine whether he
had the physical and mental capacity to act as party plaintiff.
That August, Henry moved to dismiss, asserting that Guilbeau
lacked the capacity to proceed. The court denied the motion on
December 22.
On January 24, 1994 (the day the case was set for trial),
Henry moved to compel Guilbeau's testimony or, in the alternative,
for a competency hearing on whether he could testify. At a hearing
that same day, Henry's expert witness, Dr. Berger, who had examined
Guilbeau over the preceding weekend, testified that, if present and
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manufactured in 1978; the floor was rotten and buckling, and the
carpet was old and worn out.
In August 1986, arrangements were made to repair the floor and
replace the carpet in the mobile home office. The new carpet was
installed in the living-dining area, which served as a waiting room
for customers, part of the hallway, and in the bathroom, but not in
Guilbeau's office.
On Thursday, August 14, two of Guilbeau's co-workers, Jonathan
Shaw and Rawlin Duplechin, removed the old carpet and particle
board subflooring, which had to be cut with a saw, and replaced the
subflooring with plywood. Duplechin testified that sawdust,
mildew, and mold were generated from the tearing-out operation, but
both he and Shaw testified that Guilbeau did not complain during
that phase of the repairs. Duplechin testified that Guilbeau
stayed in his office, which was in a separate room, most of that
day, but would go outside occasionally because "it was getting too
strong, he had to get a little bit of air".3 Guilbeau's diary
reports that "[t]he smoke, sawdust and a strong smell ... got so
a witness at trial, Guilbeau probably would disrupt the trial
because he has the emotional level of an eight-year-old, is unruly,
and throws violent, explosive tantrums as soon as he is stressed.
The court apparently rejected Dr. Berger's suggestion that a
trained policeman be appointed to assist the court in keeping
Guilbeau under control, and that a psychiatrist subject him to a
major tranquilizer to prevent him from tearing the courtroom apart,
because Guilbeau did not testify at trial. Mrs. Guilbeau testified
that he was not capable of it physically or emotionally, because of
the odors in the courtroom, and because the questions would cause
him to become agitated and confused.
Shaw testified similarly that Guilbeau was in and out of the
office while the repairs were being made.
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bad that it was hard for me to breath[e] and it would burn my eyes
and nose". Mrs. Guilbeau testified that he said the smell from the
repairs that day was strong, and burned his eyes and nose, but that
he was not sick. Guilbeau left the office early that afternoon,
about 4:00 or 4:30 p.m.
On August 15, Guilbeau arrived at the office around 8:00 or
8:30 a.m. His diary reports that he immediately noticed a strong,
irritating smell, had difficulty breathing, and that his eyes,
nose, throat, and lungs were badly irritated. Later that same day,
Shaw purchased a three-and-one-half-gallon can of Henry #270 carpet
adhesive from a local supplier.4 Shaw and Duplechin began
installing the new carpet that same day, around 9:30 or 10:00 a.m.5
Shaw spread the adhesive on the floor with a trowel, and Duplechin
rolled out the new carpet. They did not wear masks or use air
bottles. It took them an hour and a half to two and one-half hours
to install the new carpet.
Duplechin testified that while the adhesive was being used and
afterward, the windows and doors were open to ventilate the mobile
The sales receipt reflects that one three-and-one-half-gallon
can of Henry #170 adhesive was purchased; but Shaw testified that
he bought #270, and that the receipt was in error. Henry
introduced another receipt from the same supplier, indicating that
#270 adhesive was purchased on February 10, 1987, but Shaw
testified that there was no confusion about which adhesive was used
to make the August 1986 repairs. Shaw testified that he read the
label, which contained no warning about dangers to human health,
and that, if the label had contained such a warning, he would have
passed it on to Guilbeau.
Duplechin could not remember whether the carpet was installed
in the morning or afternoon; Mrs. Guilbeau testified that it was
not installed until after lunch.
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home, and that there was cross-ventilation throughout the repair
operation. Shaw testified, however, that the doors were closed
while the carpet was being installed, and that the windows and
doors were opened after the installation was completed. Duplechin
testified that Guilbeau was in the office while the carpet was
being installed, but went in and out to show other homes to
customers.
Shaw testified that an air conditioning vent was under
Guilbeau's desk, and that the air conditioning system in the mobile
home recycled the air inside the mobile home. He testified that a
substantial amount of recycled air with the odor of adhesive was
coming from the vent under Guilbeau's desk and that, at Guilbeau's
request, he blocked the outlet in Guilbeau's office after the
repairs were completed at the end of the day that Friday.6
Shaw and Duplechin testified that the smell of the adhesive
was "strong", but that it did not make them sick. Duplechin
testified that Guilbeau thought the adhesive had a strong smell,
and complained that it made him sick and dizzy; but he did not
observe Guilbeau with watery eyes or having trouble breathing.
Shaw testified that Guilbeau started complaining when they began
installing the carpet, and put toilet tissue in his nostrils
because of the smell; and that Guilbeau went in and out of the
office frequently to get fresh air because the fumes made it
difficult for him to stay in the office.
Guilbeau's diary states, however, that duct tape was applied
to seal the floor air supply duct during the late morning on August
15.
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Guilbeau left the office between 3:30 and 4:30 p.m. on Friday,
to keep an appointment with some customers at the Lafayette sales
lot.7 Mrs. Guilbeau testified that when he got home, he was
depressed, quiet, and irritable, but said that he was all right
when she asked him if something was wrong, and did not mention
odors.
Guilbeau returned to the office around 8:00 or 8:30 a.m. the
next day, Saturday, August 16. Mrs. Guilbeau testified that he
told her he could smell the odors from the mobile home from his
truck, 25 feet away. His diary states that the smell was one he
had never smelled before, and that it was "cool and burning"; that
he opened the windows and went outside; and that he could still
smell a "slight odor" when he went back inside, but it was only the
smell of new carpet.
Guilbeau was at the office that Saturday until approximately
1:30 p.m., but had to leave because he was sick.8 His diary
reports that he experienced numerous symptoms, including sweating,
numbness of his chin and mouth, burning eyes, ears, throat, and
lungs, headache, nausea, and confusion.9 His diary reports that
Guilbeau's diary states that Travis Knight noticed from his
facial expression that he was very depressed, but that he had not
noticed any depression until Knight mentioned it.
Although Guilbeau's diaries state that he left the office at
1:30 p.m., Mrs. Guilbeau testified that he stayed in the office
until 3:30 or 4:00 that day.
Guilbeau's diary reports that, after sitting at his desk for
some time, the next thing he became aware of was that it was 11:30
a.m., and he was in his truck, driving; he purchased food and drink
and returned to the mobile home office at 11:35 a.m.
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while driving away from the sales lot on his way to Lafayette, the
back of his head felt like someone was pushing on it, he felt
paralyzed and it was hard for him to drive, it felt like someone
was squeezing his brain with their hands, his mouth was dry, and he
was light-headed and weak. He called Mrs. Guilbeau from Lafayette,
told her he was sick, and asked her to meet him at home. His diary
states that he experienced the same symptoms again while driving
home. When they arrived at home, Guilbeau told his wife that he
felt like something was squeezing his brain and that there was
"stuff" that was all over him.
Mrs. Guilbeau testified that Guilbeau felt a little better
when he woke up on Sunday, but continued to complain of a headache,
weakness, dizziness, light-headedness, and aching all over, as if
he had the flu. He did not go to the office on Sunday.
The following Monday, August 18, he went to the office, but
stayed only three and one-half hours, because he was ill.10
Guilbeau's diary reports that he arrived at the office at 8:30
a.m., left at 11:00 a.m., returned at 12:30 p.m., left again at
1:30 p.m. to go to the doctor, and did not return to the office
that day. Mrs. Guilbeau testified that he called and told her that
he had experienced the same symptoms of light-headedness, headache,
and confusion, and that he had gone to the doctor. Shaw testified
that the odor was still strong on Monday, and that Guilbeau was
His diary reports that the only odor he smelled was from the
new carpet.
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still complaining and still had tissue in his nose.11
Joseph Thibodeaux, the salesman who replaced Guilbeau,
testified that the odor from the adhesive "was tough ... rough ...
pretty bad", that it remained for a month or two, and that
customers complained about the smell, and had to leave the office
because their eyes were burning.12 Thibodeaux testified that he
tried to use Guilbeau's office for a few days, but could not
because of the smell, so he moved to a different office; that the
smell made him sick, dizzy, and caused his eyes and nose to burn;
that he took off one afternoon, but did not go to the doctor; and
that he has been fine ever since, even though he continued to work
in the mobile home for two to three months.13 Thibodeaux testified
that he had seen Guilbeau two nights prior to his testimony, and
that Guilbeau had lost weight and looked sick.14
On Monday, August 18, Guilbeau visited Dr. Clause, who had
been treating him since 1964. Guilbeau reported exposure to glue
two days earlier, and complained of headaches, light-headedness,
tingling sensations of the skin, and numbness in his chin. Dr.
Clause observed wheezing in his lungs and a red throat. Urine and
blood tests were normal except for elevated cholesterol and
According to Shaw, the odor continued "for a long time".
Thibodeaux testified that the smell was from the adhesive, but
that it was exactly the same smell he had encountered in new mobile
homes, except that it was much stronger.
Shaw testified, however, that Thibodeaux did not get sick.
Thibodeaux testified that Guilbeau came to his house because
Thibodeaux's telephone was out of order and Guilbeau's lawyers
wanted to reach him.
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triglycerides. Dr. Clause testified that he observed no distress,
confusion, speech or learning impairments, or differences in
Guilbeau's behavior, that Guilbeau showed no signs of convulsions,
weakness, tremors, paralysis, twitching, unsteadiness, reflex
abnormalities, activity changes, or lack of coordination, and that
Guilbeau did not complain of sleep disturbance, narcosis,
excitability, depression, irritability, restlessness, nervousness,
delirium, hallucinations, equilibrium changes, loss of appetite,
stupor, fatigue, nerve damage, or visual disorders.
Guilbeau did not go to the office on Tuesday, August 19, but
went back to work on Wednesday, the 20th.15 Mrs. Guilbeau testified
that he did not stay at the office all day, but went to the
hospital; he did not call her because he could not remember her
telephone number. Guilbeau's diary states that he was at the
office from 8:30 a.m. until 4:30 p.m. At the hospital that day,
Guilbeau was examined by Dr. Sabatier, who found decreased oxygen
in Guilbeau's blood, which he attributed to smoking; but chest x-
rays showed no evidence of organic solvents, and no traces of such
materials were found in his blood or urine. Mrs. Guilbeau
testified that the doctors ran tests and said Guilbeau was fine,
but that he should stay away from the office for a couple of days.
She said that on Thursday and Friday, he complained about pressure
in his head, pain in a certain spot in his back, numbness in his
face, weakness, and bloating.
His diary reports that the odor was strong when he arrived,
but that after he opened the windows and doors, there was only a
slight smell, which was not as strong as it had been in the past.
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Guilbeau did not return to the office until Monday, August 25.
Mrs. Guilbeau testified that he went home early because he could
not take the smell, which was making him sick. Guilbeau's diary
reports that he was at the office that day from 9:00 a.m. until
4:30 p.m., and that it was the last day he was able to go to work.
Mrs. Guilbeau testified that he was complaining about his stomach,
and she took him to see Dr. Fournet, who x-rayed his lungs and
tested his blood and urine, but found no abnormalities.
Although Dr. Fournet prescribed Tagamet and gave Guilbeau a
cortisone shot, Mrs. Guilbeau testified that his condition
worsened. She stated that he would sit in his recliner like he was
in a daze, and would shake; she described a "pain attack" during
which Guilbeau got flushed, white around the mouth, and started
shaking and sweating. After the attack, he could not move his arms
and legs, and said it was like everything inside him had quit
functioning.
Mrs. Guilbeau testified that Guilbeau was not sleeping well,
and could not find his way out of bed to the bathroom, and that his
condition continued to worsen gradually for the next two years.
She testified that his symptoms include impotence, vision problems,
pain in his ears, nose, throat, chest, and back, sleep
disturbances, pressure in his head, penile lesions, sores in his
groin area and on his buttocks, fizzy urine with red, white, and
brown crystals and "mushroom" type things that looked like cotton
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balls in it,16 white particles in his stool, sores at his hair line,
which has started to recede, seizures, and confusion.17
Dr. Fournet referred Guilbeau to Dr. Wong, a pulmonary
specialist. On September 4 and 5, Dr. Wong examined Guilbeau and
found a 30% loss of lung use.18
On October 1, Guilbeau saw Dr. Ellithorpe at Tulane
University; he reported that he was in his usual state of health
until August 15 when carpet was installed in his office; and that
he noticed some irritation from the carpet adhesive, which became
more noticeable in the next several days. He then saw an
internist, Dr. Nix, who referred him to a psychologist, Dr.
Friedberg, who testified for Henry at trial as an expert in
clinical psychology.
Dr. Friedberg examined Guilbeau on October 21, 1986; Guilbeau
was hospitalized at the time. Dr. Friedberg was unable to get a
complete history because Guilbeau was discharged from the hospital
before he could complete the evaluation. Dr. Friedberg
Henry's expert witness, Dr. Berger, testified that the
crystals in Guilbeau's urine were caused by high uric acid.
Mrs. Guilbeau testified that before the exposure, Guilbeau had
a bump on his foot, caused when he fell from a horse, but that the
bump went away after the exposure; and that Guilbeau gets lesions
when he smells smoke from a fireplace or when he is exposed to
chemicals, perfume, or shampoo. His diary contains a drawing of
his vein, and he reported that he could feel chemical deposits
moving through his veins, creating "a cool, itching, raw, burning
pain".
Guilbeau's diary states that Dr. Wong told him that if he
wanted to get rid of his wife, that was the time to kill her,
because there was not a court in the land that would convict him in
the condition he was in.
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administered the Minnesota Multiphasic Personality Inventory (MMPI)
to Guilbeau; the results and Friedberg's analysis indicated that
Guilbeau was a somaticizer, meaning that he complained of physical
ailments without physical cause. The MMPI scales for
hypochondriasis, hysterical components, conversion reactions,
depression, and psychopathic deviant (which measures impulsivity
and poor impulse control) were elevated. Friedberg thought
Guilbeau's anxiety levels were very high, and that he needed some
psychological or psychiatric treatment, but Guilbeau was very
resistant.
Friedberg testified that he had treated other toxic exposure
patients, and saw no parallels between those patients and Guilbeau;
however, he could not rule out that Guilbeau might have suffered
from organic brain damage with a psychological overlay. He
expressed no opinion as to whether Guilbeau's psychological
problems might be related to organic brain damage and exposure to
organic solvents.
Dr. Rees, a psychiatrist who testified at trial as an expert
witness for Henry, first examined Guilbeau on March 18, 1987, and
saw him four more times. Guilbeau reported that he had been
exposed to formaldehyde and carpet adhesive, and complained of
feeling very ill and very weak. His symptoms included smelling
ether in the bathroom, seeing things that were not there, extreme
anxiety, anger, and complaints about at least eight parts of his
body; Dr. Rees was concerned that Guilbeau might go into an
uncontrollable rage.
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Dr. Rees testified that Guilbeau appeared to be quite
distressed and was very angry with every physician who had examined
him. He diagnosed a somaticization disorder.19 He did not think
that exposure to toxins could have caused all the symptoms that
Guilbeau was reporting, and could not have caused Guilbeau's
unusual anger at every physician he had seen. He testified that he
was absolutely certain that Guilbeau's symptoms had nothing to do
with his exposure to adhesive, and that he was sure, as the result
of his examination, that Guilbeau did not have organic brain
damage.20
Dr. Black, a professor of psychiatry and neurology at Tulane
Medical Center, examined Guilbeau in 1988 or 1989 and 1990. On
both occasions, Dr. Black conducted extensive psychological
testing, and found no brain damage, but found somaticizing and
histrionic personality disorders. Dr. Black's 1989 report states
that Guilbeau's complaints are more likely than not due to a
psychiatric disorder rather than to residual effects of any alleged
toxic exposure. His 1990 report states that Guilbeau meets the
diagnostic criteria for organic delusional syndrome, and he
testified in his deposition that "organic" does not mean an organic
brain disease or any brain dysfunction. The report concludes that
Mrs. Guilbeau testified that Dr. Rees insulted Guilbeau, and
that Guilbeau got upset with Dr. Rees.
Guilbeau was also seen by another psychiatrist, Dr. Covington,
who found no brain dysfunction.
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he does not feel that Guilbeau has brain damage based on available
data, but that brain damage "cannot be absolutely ruled out at this
time".
In March 1989, Guilbeau saw Dr. Callender, who had previously
seen him in December 1986.21 Dr. Callender, who is board certified
in internal medicine, testified for the Guilbeaus at trial, as an
expert in internal medicine, neurotoxicology, and occupational
medicine.22 Guilbeau reported to Dr. Callender that he had been
exposed to glue and formaldehyde on August 15, 16, and 18, 1986,
and for one to two weeks thereafter. His complaints included
depression, numbness, difficulty walking, pressure in the back of
his head, difficulty thinking, difficulty breathing, bloating,
headaches, sweating, weakness, shaking, a bad taste in his mouth,
chest pain, irritation of eyes and nose, disorientation,
Mrs. Guilbeau testified that, by that time, Guilbeau had begun
to be sickened by odors; that he has temper tantrums and loses all
control when he is exposed to chimney smoke; and that the odors of
cleaning fluid, new clothing, perfume, hair spray, deodorant, and
shampoo make him ill. A sign posted on the door of the Guilbeaus'
home states: "DO NOT ENTER If you are wearing the following[:]
perfume[,] hair spray[,] cologne[,] after shave[,] deodorants[,]
new clothing[,], powder[,] makeup[.] There is a Toxic person
living in this house who is allergic to all these above products.
With your understanding, we can help him from having severe
seizures and severe multiple pain".
Amazingly, the smoke from the one and one-half to two packs of
cigarettes he smokes each day has no adverse effect on Guilbeau;
and he is not bothered if others smoke cigarettes in his presence.
He uses a lighter with lighter fluid to light his cigarettes, but
has not complained about the smell from the lighter fluid.
Mrs. Guilbeau was employed by Dr. Callender at the time of the
trial; she began working for him after he began treating Guilbeau.
He testified, however, that her employment had not compromised his
medical objectivity.
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irritability, personality change, tingling sensations, fever,
tachycardia, shortness of breath, memory loss, ringing ears,
blurred or double vision, balance problems, sexual dysfunction, and
confusion. Except for depression, a raw throat, a little
congestion in the lungs with some wheezing, and a slightly tender
abdomen, Dr. Callender's physical examination of Guilbeau revealed
no abnormalities. Blood and urine tests were performed, as well as
an electroencephalogram (EEG) and magnetic resonance imaging (MRI),
and all of the results were normal.
A SPECT scan of Guilbeau's brain was administered by Dr.
Subramanian on March 26, 1990.23 The scan showed decreased blood
flow in the left frontal lobe, the left thalamus, and parts of the
right basal ganglia. An ultrasound scan revealed a 20-30%
obstruction of Guilbeau's left carotid artery in May 1990.
Based on the SPECT scan, Guilbeau's history of exposure to
Henry's adhesive in the mobile home, and Guilbeau's
hypersensitivity to smells (cacosmia),24 which Callender stated is
characteristic in individuals who have been exposed to neurotoxins,
especially solvents, Dr. Callender ruled out other possible causes
for Guilbeau's symptoms, and diagnosed severe chronic toxic
encephalopathy (permanent brain damage), vestibular dysfunction,
SPECT is the acronym for single photon emission computerized
tomography, a brain imaging method which uses radiation tracers
injected into the brain through the carotid artery to produce
computer-generated color images of blood flow.
There was testimony that "osmia" means "to smell" and "caco"
is a Greek word for "stool". Dr. Callender referred to an article
defining cacosmia as nausea, headaches, and subjective distress in
individuals exposed to neutral environmental odors.
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and thalamic sensory syndrome, caused by exposure to the adhesive.25
Guilbeau was seen by Dr. Lisa Morrow, a Pittsburgh
psychologist, in July 1989.26 Guilbeau reported to her that he
smelled a strange, cool, burning odor emanating from an air vent
underneath his desk on Saturday, August 16, 1986; that he had pain
in his left wrist and sometimes in his right arm and shoulders;
that smells such as perfumes burn his nose, make him weak and
dizzy, and cause pressure in his head; that he has headaches at the
same time every day; that he is often tired and does not sleep more
than two to three hours a night; that he has a 30% loss in his
lungs; that he has pains in his stomach and elsewhere 17-18 times
a day; and that he suffered from nervousness, itching, sweating,
dizziness, shaking, and hallucinations.
Dr. Morrow conducted tests, on which Guilbeau had high scores
for somatic preoccupation, depression, hysteria, and anxiety.27
Based on her examination and the history and symptoms reported to
her by Guilbeau, Dr. Morrow opined that Guilbeau suffered a
psychological injury or psychiatric disorder as the result of his
Dr. Callender testified that vestibular dysfunction was
related to Guilbeau's symptoms of dizziness and panic attacks; and
that thalamic syndrome is equivalent to sensory dysfunction,
including hallucinations.
Dr. Morrow testified that she works with Dr. Callender, whom
she met in 1988, and that Dr. Callender has referred patients to
her, 18 of whom she is using in her research on persons who have
been exposed to solvents.
She testified that she did not test for secondary gain desire,
but that it was a possibility.
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exposure to solvents in the adhesive. She testified that she
focused on the adhesive because of Guilbeau's sensitivity to other
odors which, based on her experience, could have been caused only
by solvent exposure.
Dr. Callender referred Guilbeau to Dr. Harper, a neurologist,
who testified at trial as an expert in pain management, neurology,
psychopharmacology, and addiction medicine. Dr. Harper testified
that Guilbeau described the repairs at the mobile home and reported
that he started having problems on August 14, 1986; he complained
of chemicals affecting his brain; pain, panic, and scare attacks;
and visual problems; and he reported a major behavioral change,
from being a successful salesman before the exposure to being
ineffectual and depressed afterward.
Dr. Harper made no abnormal physical findings, but testified
that Guilbeau complained of sensitivity to odors (cacosmia); he
testified that cacosmia is fairly rare, and that he has seen it
only in persons with a history of exposure to chemicals. Harper
testified that Guilbeau had a variety of interesting complaints
that were complicated to interpret.28 Harper ruled out somatization
disorder because there was a physical explanation for Guilbeau's
Harper testified that Guilbeau reported a lot of symptoms that
doctors would consider to be fairly impossible: a feeling of a
chemical flowing into his brain from his neck; a cool, numb,
itching feeling, then burning of the neck, and then a pain in his
head; and a feeling that his brain was twisting inside. Harper
testified further that Guilbeau reported that he could smell
chemicals coming out of his body at times, and that Mrs. Guilbeau
agreed that she could smell them, too; that he experienced swelling
in his left index finger, which traveled up into his forearm; and
that his spells could be set off by different smells or particular
television commercials.
- 18 -
physical complaints, and concurred in Callender's diagnosis, based
on Guilbeau's description of his history of exposure to the
adhesive, the symptoms he reported after the exposure, and the
SPECT scan of his brain, which showed abnormal areas of decreased
circulation in parts of his brain.
Henry's expert, Dr. Berger, examined Guilbeau the weekend
before the trial in January 1994. He testified that he found
chronic lung disease, clubbing of the fingernails (a sign of
advanced emphysema and bronchitis), gastro-intestinal disease,
bloating, poor circulation, and an irregular heart beat (a sign of
early atherosclerosis).29 He performed neurological tests, and
testified that the results clearly showed that Guilbeau has no
brain dysfunction, but has a personality problem of using tantrums
and exaggerating his regular conditions to manipulate people.
Mrs. Guilbeau testified that, other than problems with his
sinuses and surgery for a dislocated knee, Guilbeau had no serious
health problems, seizures, or allergies prior to August 1986; and
that, before the mobile home repairs, Guilbeau behaved normally,
and she and Guilbeau were happy and had a very good relationship;
but afterward, he has been scared, depressed, aggravated, and
Dr. Berger testified that he observed some malingering when
Guilbeau "made believe" his legs were paralyzed, fell off a chair,
and called it an attack or some kind of brain seizure; that
Guilbeau tried to fake a reaction to one of the tests of his
reflexes; and that Guilbeau was trying to cover up his knowledge of
his blood sugar problem by refusing to eat before a urine test, and
then refusing to provide a urine sample the next morning after he
had eaten breakfast.
- 19 -
angry, and has temper tantrums.30 There was evidence, however, that
Guilbeau attempted suicide in 1969, when he took an overdose of
sleeping pills; he was honorably discharged from the Army after
serving two and one-half months, because of a knee problem, but the
discharge was authorized by a psychiatrist; he had complained about
nervousness and anxiety as far back as 1972, and had been
prescribed tranquilizers;31 he is a heavy smoker, having smoked from
one and one-half to four packs of unfiltered cigarettes a day for
over 30 years, and suffers from chronic lung disease, frequent
upper respiratory infections, bronchitis, and wheezing, dating back
to 1964;32 his blood sugar was high in 1971 and 1984; he had high
triglycerides, high cholesterol, and high uric acid; he had been
Duplechin testified that, before he was exposed to the
adhesive, Guilbeau was never sick and never complained, but that
after the carpet was installed, Guilbeau said that he felt dizzy at
times; and when he saw Guilbeau about a year before the case was
tried in January 1994, Guilbeau looked bad and had lost a lot of
weight. Shaw testified similarly that before the exposure,
Guilbeau was healthy, fun to be around, courteous, and humorous;
that he was not a chronic complainer; that he had never seen him
have temper tantrums, fainting spells, or dizziness; but that when
he saw Guilbeau about two years before the trial, he could not
believe it was he because he looked so bad and had lost so much
weight. Thibodeaux testified that before August 1986, Guilbeau was
a top-notch salesman who had a good personality, but that afterward
he looked "like death warmed over" and did not have "the old get-
up-and-go". Leonard Brown, a former co-worker, testified similarly
that Guilbeau had nothing wrong with him before the exposure, but
that Guilbeau told him about trouble with his head, dizziness, and
lack of coordination after the exposure.
Dr. Clause, who prescribed the tranquilizers, testified that
he did not consider Guilbeau to be a chronically nervous or anxious
person; and saw no sign in 28 years that he was suffering from a
psychiatric disorder.
Mrs. Guilbeau testified that Guilbeau's cigarettes cost about
$90 per month.
- 20 -
treated for rectal bleeding and for prostatitis on several
occasions; he was treated for impotence in 1984; he suffered from
gastritis; he went to a doctor in 1976 after claiming to have been
nearly struck by lightning;33 and in 1974 he went to a hospital
emergency room complaining of toxic exposure to rice fumigation,
and was diagnosed as having a possible allergic reaction.
(Contrary to the dissent's suggestion, by summarizing this
evidence, aspersions are not cast on Guilbeau's sanity, nor are
improper inferences drawn.)
On August 14, 1987, the Guilbeaus filed suit against Henry and
others, alleging that, in August 1986, when the new sub-flooring
and carpet were installed in the mobile home where Guilbeau worked,
he became ill after being exposed to formaldehyde gas released from
particle board flooring, which synergistically combined with toxic
fumes emitted from carpet adhesive manufactured by Henry.34
Eventually all of the defendants except Henry were dismissed, and
the case finally proceeded to trial in January 1994 on its 13th
setting, with the Guilbeaus being represented by their third set of
lawyers since suit was filed.35
Mrs. Guilbeau testified that Guilbeau told her that the
lightning episode felt like he was glued down, and snapped his
lower back.
The complaint was amended to add additional defendants
(manufacturers of formaldehyde products and their insurers) in
March 1988, and again in January 1990.
The Guilbeaus are represented by different counsel on appeal.
In a motion to dismiss filed in September 1993, Henry stated
that, before the fall of 1992, the Guilbeaus agreed to settle with
Henry for a nominal amount, but later reneged. At a hearing on
- 21 -
At trial, the district court denied Henry's motions for
judgment as a matter of law, as discussed infra. In response to
interrogatories, the jury found that Henry's adhesive was defective
because it was unreasonably dangerous for normal use or because it
failed to include an adequate warning; and that the defective
condition of the adhesive was the legal cause of Guilbeau's
injuries. It awarded $2,000,000 to Guilbeau and $900,000 to Mrs.
Guilbeau.
The district court denied Henry's post-trial motion for
judgment as a matter of law or, in the alternative, for a new
trial; but found that the interrogatory regarding Mrs. Guilbeau's
damages was erroneous as a matter of law because, although her only
claim was for loss of consortium, it allowed the jury to award
damages to her for many of the same types awarded her husband. The
court concluded that the maximum amount that properly could have
been awarded for loss of consortium was $50,000; it denied Henry's
motion for new trial on the issue of loss of consortium conditioned
on Mrs. Guilbeau's acceptance of the remittitur. The remittitur
was agreed to.
December 13, 1993, the district court announced that it was going
to dismiss the case, because the Guilbeaus' attorneys were not
prepared to go to trial, which was set for that day. The court
recalled the dismissal, however, to avoid penalizing the Guilbeaus
for their counsel's conduct. However, the court ordered one of the
Guilbeaus' attorneys to pay $11,186 to Henry as sanctions, to cover
Henry's expenses in preparing for trial for the December setting.
- 22 -
II.
Henry contends that the district court erred (1) by denying it
judgment as a matter of law, in light of the absence of scientific
evidence that the adhesive was either defective or caused
Guilbeau's alleged injury; and (2) by denying it a new trial,
because the Guilbeaus' trial counsel engaged in improper trial
conduct and made improper closing arguments to confuse and inflame
the jury. In addition to contesting the issues raised by Henry,
the Guilbeaus assert that, even if the evidence were insufficient,
the judgment should be affirmed because the claimed erroneously
excluded evidence is sufficient; that the remittitur should be
reversed; and that the district court applied an erroneous rate and
date of accrual in awarding prejudgment interest. The Stevens firm
contends that the court erred by failing to award attorneys' fees
to it (any recovery by that firm is contingent on judgment being
awarded the Guilbeaus); the Guilbeaus respond that the firm is not
entitled to any recovery.
Before reaching whether judgment as a matter of law should
have been granted, whether the issue was preserved in district
court must be determined.
A.
The Guilbeaus claim that Henry failed to preserve the
sufficiency of the evidence question. They maintain that the only
ground stated by Henry in seeking judgment as a matter of law was
on "unreasonable dangerousness" only as to the failure to warn
theory of liability, and that Henry failed to challenge the
- 23 -
evidence of exposure, other theories of defect, or causation.
At the conclusion of the Guilbeaus' case-in-chief, Henry moved
for judgment as a matter of law, stating:
[U]nder Federal Rule 50, I'll move for
judgment as a matter of law on the issues of
unreasonably dangerous [sic]. There's been no
showing by plaintiffs that this product is
unreasonably dangerous, and there's been no
showing by these plaintiffs that this product
should have had a warning when it was
manufactured in 1986 or ... when the material
safety data sheet was promulgated in 1985;
you've heard no showing from the plaintiffs on
those issues. This has to do with a product
that was manufactured and distributed in early
1986 and used by the consumer in the eighth
month of 1986. You have no demonstration
either in fact or in law as to those issues,
and under Rule 50 I move for judgment as a
matter of law on those grounds. May I add,
Your Honor, ... that the expert which they
propounded on all of those issues, by his own
admission, only became an expert on this in
1990, four years after the product was
manufactured.
The Guilbeaus responded that there was evidence from which the
jury could find that the product was defective because of the
absence of the warning, and stated that their expert
also expressed the opinion that it should not
have been manufactured with pentachlorophenol
and that it shouldn't have had -- it could
have been manufactured without the
pentachlorophenol, because all
pentachlorophenol did, a very dangerous,
highly dangerous chemical, was to extend the
shelf life of the product. So, we've got a
real fact issue on those two issues,
manufacturing defect which rendered the
product unreasonably dangerous and failure to
warn which rendered the product unreasonably
dangerous. We did also mention the failure to
test.
(Emphasis added.)
- 24 -
The court took the motion under advisement "without prejudice
to the rights of either party to bring a similar motion at the end
of the evidence". Although Henry's renewal of the motion is not
transcribed, a minute entry reflects that the court denied Henry's
motion, at the close of all the evidence, re-urging its motion for
judgment as a matter of law.
A motion for judgment as a matter of law "may be made at any
time before submission of the case to the jury" and "shall specify
... the law and the facts on which the moving party is entitled to
the judgment". FED. R. CIV. P. 50(a)(2). The purpose of that
requirement "is to assure the responding party an opportunity to
cure any deficiency in that party's proof that may have been
overlooked until called to the party's attention by a late motion
for judgment". FED. R. CIV. P. 50, advisory's committee's note (1991
amendment); see also MacArthur v. University of Tex. Health Center,
45 F.3d 890, 897 (5th Cir. 1995) (Rule 50(b) "serves two basic
purposes: to enable the trial court to re-examine the sufficiency
of the evidence as a matter of law if, after verdict, the court
must address a motion for judgment as a matter of law, and to alert
the opposing party to the insufficiency of his case before being
submitted to the jury").
Although Henry's motion could (and should) have been more
specific, it was adequate, inter alia, to preserve the issue of
sufficiency of the evidence of product defect. Despite the
Guilbeaus' protests to the contrary, they were not prejudiced or
"sandbagged" by Henry's failure to articulate with more precision
- 25 -
the grounds for the motion. Although the Guilbeaus characterize
this as a failure to warn case, that issue was not the most
prominent one at trial; by far, the bulk of the evidence related to
defect and causation. Review of the entire record leaves no doubt
that the most significant issues were whether Henry's product was
capable of causing, and did in fact cause, the alleged injuries.
As the court stated at a pre-trial hearing on December 13, 1993,
"[t]here's really one issue in this case and that's all; it's
cause". The court reiterated that fact on the eighth day of trial,
in the midst of Henry's case: "That's what this lawsuit is, to see
whether this [adhesive] or some other thing that was present that
brought this result to Mr. Guilbeau."
Moreover, as shown by his quoted comments about
pentachlorophenol in responding to the motion, the Guilbeaus'
counsel demonstrated that he knew exactly on what grounds the
motion was based. But, especially, this is reflected also by the
fact that earlier, during the Guilbeaus' case-in-chief, their
counsel inquired of Dr. Callender: if the jury was asked to
determine whether the product was defective ("unreasonably
dangerous"), was it because it contained pentachlorophenol? Dr.
Callender responded in the affirmative. The Guilbeaus' counsel was
fully aware of the bases for the motion.
B.
Because Henry preserved its challenge to the sufficiency of
the evidence, the denial of its motion for judgment as a matter of
law is reviewed under the well-known standard from Boeing Co. v.
- 26 -
Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc):
On motions for directed verdict and for
judgment notwithstanding the verdict the Court
should consider all of the evidence -- not
just that evidence which supports the non-
mover's case -- but in the light and with all
reasonable inferences most favorable to the
party opposed to the motion. If the facts and
inferences point so strongly and
overwhelmingly in favor of one party that the
Court believes that reasonable men could not
arrive at a contrary verdict, granting of the
motions is proper. On the other hand, if
there is substantial evidence opposed to the
motions, that is, evidence of such quality and
weight that reasonable and fair-minded men in
the exercise of impartial judgment might reach
different conclusions, the motions should be
denied, and the case submitted to the jury. A
mere scintilla of evidence is insufficient to
present a question for the jury.... However,
it is the function of the jury as the
traditional finder of the facts, and not the
Court, to weigh conflicting evidence and
inferences, and determine the credibility of
witnesses.
Id. at 374-75.36
This diversity case, to which Louisiana law applies,
apparently was presented to the jury solely on a strict products
As stated, this standard requires review of all of the
evidence that was before the jury. Excerpts from several
depositions were read to the jury; in some instances, the excerpts
were transcribed, but in others they were not. Counsel for both
sides apparently were oblivious to that fact; although they stated
where reading began, they frequently did not state where it stopped
before skipping to the next excerpt. In some instances, this might
preclude review of the sufficiency of the evidence. In this case,
it does not, because the entire depositions from which excerpts
were read were admitted into evidence, although not given to the
jury during their deliberations. These depositions have been
reviewed; even if read to the jury in their entirety, they do not
contain sufficient admissible evidence to support the verdict.
None of the deponents were expert witnesses, and none of the
depositions at issue contain any testimony about the decisive
factual dispute -- pentachlorophenol and sodium pentachlorophenate.
- 27 -
liability theory, both parties having agreed to omit negligence and
comparative negligence instructions.37 This case was commenced
prior to the effective date of the Louisiana Products Liability Act
of 1988, La. Rev. Stat. §§ 9:2800.51-2800.59 (effective September
1, 1988). To recover from a manufacturer under that theory, the
applicable Louisiana law required the plaintiffs to "prove (1) that
the injury or damage resulted from the condition of the product;
(2) that the condition made the product unreasonably dangerous to
normal use; and (3) that the condition existed at the time the
product left the control of the manufacturer or supplier". Bell v.
Jet Wheel Blast, 462 So. 2d 166, 168 (La. 1985); see also Halphen
v. Johns-Manville Sales Corp., 484 So. 2d 110, 113 (La. 1986).
"An essential element of a plaintiff's case ... is proof that
the defendant's product was unreasonably dangerous to normal use".
Halphen, 484 So. 2d at 113. "A defective product is one that is
`unreasonably dangerous to normal use'". Bloxom v. Bloxom, 494 So.
2d 1297, 1302 (La. App. 2d Cir. 1986) (quoting Weber v. Fidelity &
Casualty Ins. Co. of N.Y., 259 La. 599, 250 So. 2d 754, 755 (La.
1971)), aff'd, 512 So.2d 839 (La. 1987). "`Normal use' is a term
of art that includes all intended uses, as well as all foreseeable
uses and misuses of the product". Bloxom v. Bloxom, 512 So. 2d
839, 843 (La. 1987). Obviously, if a product is not unreasonably
dangerous, there is no need to address causation. (The dissent
concludes that the evidence is sufficient to support a finding that
Henry's adhesive caused Guilbeau's alleged injuries, and that the
The charge was not transcribed and is not in the record.
- 28 -
adhesive was unreasonably dangerous because Henry failed to warn
about the danger posed by organic solvents. Because there is
insufficient evidence that the organic solvents made the adhesive
defective, it is unnecessary to address causation or the lack of a
warning. In any event, the insufficient proof of causation in
regard to the organic solvents is discussed infra.)
Henry contends that the Guilbeaus failed to prove that the
adhesive was defective because (1) their experts' opinions were
based on the presence in the adhesive of chemicals that it did not
contain; and (2) Guilbeau's alleged reaction is idiosyncratic,
because, although the adhesive at issue has been manufactured and
sold for 20 years, no one but Guilbeau has ever claimed to have
been injured by it.
1.
Addressed first is whether the product was defective because
it contained pentachlorophenol and, then, whether organic solvents
are a basis for finding a defect.
a.
Henry asserts that the evidence is insufficient to prove that
the product was defective, because the Guilbeaus' expert witnesses'
opinions are based on the erroneous conclusion that the adhesive
was defective because it contained pentachlorophenol, when it
instead contained sodium pentachlorophenate. The Guilbeaus counter
that Henry's witnesses admitted that the product contained
pentachlorophenol. This response is facially correct; but, as
discussed infra, that evidence is insufficient to support a
- 29 -
conclusion that the adhesive contained pentachlorophenol.
Moreover, as also discussed infra, the Guilbeaus failed to present
any competent evidence that pentachlorophenol is a form of sodium
pentachlorophenate, that sodium pentachlorophenate has the same
toxic properties as pentachlorophenol, or that sodium
pentachlorophenate is volatile.
Dr. Reddy, the director of the laboratory for Chemtex, which
analyzed samples of the adhesive, testified for the Guilbeaus as an
expert witness in industrial hygiene and chemistry.38 He testified
that two samples were tested: a one-gallon metal can, and a three-
and-one-half-gallon plastic container. Previous testimony by Mrs.
Guilbeau and the co-workers who installed the new carpet
established that the three-and-one-half-gallon plastic container
was the one that contained the adhesive used to install the carpet
in the mobile home.39 The Guilbeaus' counsel admitted that the one-
The samples were picked up by The Subra Company from one of
the Guilbeaus' attorneys on September 10, 1990, approximately four
years after the incident in issue. Dr. Subra testified that her
company did not have the instrumentation to perform the analysis,
so she sent the samples to Chemtex.
On cross-examination, Shaw testified that Mrs. Guilbeau
obtained the three-and-one-half-gallon container of adhesive
possibly about two years after it was used in August 1986 to
install the carpet. After the noon recess, however, during which
the Guilbeaus' counsel asked Shaw about the circumstances under
which the container was given to Mrs. Guilbeau, Shaw testified on
redirect that he was mistaken about the date, and that he had given
the container to Mrs. Guilbeau in September 1986; he said that he
remembered her saying that Dr. Wong wanted the container so that he
could analyze its contents. (Counsel's lunch hour discussion with
(some might say coaching of) this witness is a typical example of
the numerous problems arising out of the conduct of counsel
throughout the trial.) Mrs. Guilbeau testified that, about two
weeks after the alleged exposure, Dr. Wong asked her to bring the
container of adhesive; that Shaw gave her the container of
- 30 -
gallon can of adhesive was newer than the three-and-one-half-gallon
container, apparently having been purchased shortly before the
testing which was conducted in September 1990.
According to Dr. Reddy, both samples were tested for 40
different volatile organic compounds; but, pentachlorophenol was
not among the items for which the samples were tested. Significant
amounts of four of the compounds tested for were found in the
three-and-one-half-gallon container: ethylbenzene, methylene
chloride, xylene, and 2-Butanone (methyl ethyl ketone). The one-
gallon can contained significant amounts of those same four
compounds, as well as toluene and trichloroethane. Toluene and
trichloroethane were not detected in the three-and-one-half-gallon
container; the laboratory did not test it for toluene. Reddy
testified that all of these compounds are found in gasoline and
most petroleum distillates.
In their case-in-chief, the Guilbeaus presented the deposition
testimony of Lawrence Balling, Henry's technical director. A list
of ingredients produced by Balling at that deposition was admitted
into evidence; it shows that #270 adhesive contains 45-55% water,
2-8% petroleum distillate; 30-40% synthetic rubber/resin binder,
15-20% clay, 1-3% soap, 0.2% pentachlorophenate, and a trace of
ammonia. (The record does not support the dissent's statement that
adhesive, and she brought it to Dr. Wong; that, after the visit,
Dr. Wong did not want the adhesive; that the container was locked
in the shed at her home until she took it to one of their lawyers,
who had it tested; and that the container was later taken to their
next lawyer. Guilbeau's diary reports that Dr. Wong examined him
on September 4 and 5, 1986.
- 31 -
"Henry refused to disclose the glue's ingredients until midway
through trial". It reflects, instead, that the Guilbeaus' trial
counsel were well aware that Henry had been willing to produce the
formula for the adhesive, with an appropriate protective order,
since 1989. It was not until mid-trial that the Guilbeaus' counsel
requested the formula pursuant to a protective order.)
When the Guilbeaus' counsel first asked their expert, Dr.
Callender, to identify the ingredients in the adhesive, he referred
to the material safety data sheet and stated correctly that it
contained "sodium pentachlorophenate".40 Counsel then asked, "Is
that what is properly known as P.C.P., pentachlorophenol?"41
Callender responded, "Well, there's -- using initials can be
confusing, because there's -- pentachloro -- it's
pentachlorophenol. It's a form of pentachlorophenol".42 From that
Dr. Callender was board certified in internal medicine. When
he first saw Guilbeau, he operated a walk-in clinic. He testified
that he became a toxicologist, and stopped holding himself out to
the public as a walk-in clinic, two or three years prior to the
January 1994 trial. Dr. Callender conceded that he was not a
chemist or industrial hygienist, and he was not tendered as an
expert in either of those fields. Over Henry's objection to Dr.
Callender testifying as an expert in any field other than internal
medicine, the district court accepted him as an expert in that
field as well as neurotoxicology and occupational medicine.
"PCP" is the recognized abbreviation for phencyclidine
hydrochloride, a controlled substance which causes hallucinations
and serious psychological disturbances. R. SLOANE, THE SLOANE-DORLAND
ANNOTATED MEDICAL LEGAL DICTIONARY 545 (1987). However, plaintiffs'
exhibit 100, excerpts from a book on neurotoxicity, uses "PCP" as
the abbreviation for pentachlorophenol; and so does an exhibit
attached to Henry's reply brief.
Perhaps because he is not a chemist, Dr. Callender never
explained the basis for his statement that sodium
pentachlorophenate is a form of pentachlorophenol, nor did he
testify about any of the characteristics or toxic properties of
- 32 -
point through the conclusion of his testimony on direct
examination, Dr. Callender and the Guilbeaus' counsel continued to
refer to the ingredient, inaccurately, as "pentachlorophenol".
Callender testified at length about the toxicity of
pentachlorophenol, its capacity to cause brain damage and other
symptoms, and the effects of synergism when pentachlorophenol is
added to solvents such as those detected in the samples of Henry's
adhesive.
When asked whether the adhesive could be used safely "in an
enclosed situation like this ... mobile home", Dr. Callender
responded that it could not, because pentachlorophenol lasts a long
time, and is very toxic; speculated that it probably also contained
dioxin, because the method used to produce pentachlorophenol at the
time usually resulted in a substantial amount of contamination from
dioxins;43 and testified that the adhesive should have contained a
warning label including the following statement:
[T]his product contains volatile organic
compounds, chemical solvents,
pentachlorophenol and associated contaminants
such as dioxins and difurans. These chemicals
and solvents can be hazardous to human health.
sodium pentachlorophenate.
The Guilbeaus' counsel interrupted Dr. Callender at this
point, and got him to agree that dioxin is "the chemical that was
in the Agent Orange that we hear about". Dr. Callender then
testified that "dioxin is probably the most toxic compound known,
and it's very often present in pentachlorophenol in amounts up to
20, 25 percent depending on the way it was produced, unless you're
dealing with a very special production where they purify it". The
Guilbeaus produced no evidence that sodium pentachlorophenate has
ever been contaminated by dioxins or any other substance; this line
of questioning is yet another example of the egregious conduct by
the Guilbeaus' trial counsel.
- 33 -
The contaminants found in commercial grade
pentachlorophenols is [sic] considered to be
extremely toxic in very small amounts....
Dr. Callender opined that "[p]entachlorophenol is a major actor in
the toxicity of this product"; and, as noted earlier, that the
product was unreasonably dangerous and defective because it
contained pentachlorophenol:
Q. ... If the jury would be asked about ...
whether or not the product was unreasonably
dangerous as manufactured and defining
unreasonably dangerous as being a danger
that's basically unreasonable, what would your
opinion be?
A. My opinion, that it would be --
Q. With the pentachlorophenol in it.
A. With the pentachlorophenol, that the
danger would be pretty much unavoidable, but
it's unreasonable.
....
Q .... If the jury is asked whether or not
the product is defective because it contains -
- because it's unreasonably dangerous and
describes unreasonably dangerous as some
defect that's unreasonable and could be
eliminated and the product still have
usability -- I believe you said your opinion
is that it is defective because it contains
pentachlorophenol; is that correct?
A. Right.
This testimony demonstrates undeniably that the whole thrust of the
Guilbeaus' theory was based on their incorrect claim that the
adhesive contained pentachlorophenol. In expressing his opinion
that the product was unreasonably dangerous and defective, Dr.
Callender never mentioned organic solvents or any other
ingredients, only pentachlorophenol.
- 34 -
On cross-examination, Dr. Callender testified that
pentachlorophenol was the most dangerous component of the adhesive.
Henry also cross-examined him about a 1991 published article
reporting on a study by Dr. Callender in which Guilbeau was one of
the subjects, and in which Dr. Callender described a "[o]ne year
exposure to two levels of formaldehyde and phenol from
particleboard. 1986, acute high level of occupational exposure for
several workdays to strong fumes of formaldehyde, phenol, and glue
containing tetrachlorophenol, dichlorophenol, ammonia,
pentachlorophenol, methanol, petroleum distillates, ethyl benzene,
methylene chloride, xylene, methyl ethyl ketone, toluene". Dr.
Callender acknowledged that some of the chemicals listed in the
article were not in the adhesive, but were typically found in
pentachlorophenol and petroleum distillates, based on his
consultation with a toxicologist.
Henry called Balling as a witness. Balling testified that the
petroleum distillate, or solvent, is ordinary paint thinner,
commercially available on store shelves in 1986; and that each
gallon of adhesive contains about a cupful of solvent. He
testified that the product contains less than two tenths of one
percent of sodium pentachlorophenate, a preservative used to kill
bacteria in the water and prolong shelf life; that sodium
pentachlorophenate is not volatile and does not evaporate; and that
although the amount used in the adhesive was below the level
required to be disclosed on the material safety data sheet (MSDS)
in 1986, Henry reported both petroleum distillates and sodium
- 35 -
pentachlorophenate on its 1985 MSDS.
Despite Balling's testimony, and the MSDS, which listed sodium
pentachlorophenate, not pentachlorophenol, as an ingredient, the
Guilbeaus' counsel repeatedly asked questions about
pentachlorophenol during cross-examination of Balling, at times
referring to it as "PCP". At times during cross-examination,
Balling was careful to distinguish between the two substances, and
did not allow himself to be misled by the Guilbeaus' counsel's
persistent references to pentachlorophenol.
For example, one of the first questions on cross was, "...
would you agree with me that it was not necessary to include the
pentachlorophenol ... in order for it to be an effective
adhesive?"; Balling replied, "It would have been an effective
adhesive without the sodium pentachlorophenate, but it would not
have good shelf life". When asked whether Henry bought laboratory-
purified pentachlorophenol or the technical grade, Balling replied,
"... I couldn't tell you what grade we bought.... We bought the
chemical sodium pentachlorophenate". And, when asked if he was
aware that pentachlorophenol was contaminated by dioxins, he
testified that he was "not aware of the fact that the sodium
pentachlorophenate was contaminated with dioxins". When asked
whether he was aware that pentachlorophenol becomes many times more
hazardous and much more readily absorbed if it is in the presence
of an organic solvent, he replied, "Yes, I do know that; but the
sodium liminal, it's not a problem". When questioned about the
volatility of pentachlorophenol when dissolved in organic solvents,
- 36 -
Balling testified that sodium pentachlorophenate was soluble in
water, and that it would remain if the water evaporated. Balling
testified unequivocally that sodium pentachlorophenate is not
volatile when dissolved in water. When questioned about
pentachlorophenol inhalation studies resulting in injuries and
deaths, Balling replied, "No, I'm not aware of that, and we put the
sodium pentachlorophenate in there".
At other times, however, Balling seemed oblivious to the
distinction, and failed to correct the Guilbeaus' counsel's
persistent references to pentachlorophenol. For example, when
asked whether "pentachlorophenol" has been found to be a hazardous
substance, he replied, "It is in the hazardous substance section of
the M.S.D.S. I am just aware that it is hazardous in the amounts
of two-tenths of a percent or over."44
When asked whether Henry conducted any tests "to determine
what was contained in the pentachlorophenol that y'all purposely
dumped into the glue to extend its shelf life", he replied:
We used an amount that wasn't required even to
be put on an M.S.D.S., so I didn't really look
into it any further than that. And I'm sure
when the M.S.D.S. ... was set up, I'm sure if
there were contaminants in it, they were taken
into consideration. Maybe that's why the
figure was so low.
When the Guilbeaus' counsel asked whether a list of components,
including "ethylene benzene", methylene chloride, toluene,
"trichlorethylene", xylene, MEK, pentachlorophenol, and
styrenebutadiene, were in the product, Balling replied "yes",
without distinguishing between the components he had previously
testified were in the product and those which he had testified were
not in it. Later, counsel asked: "Now, you have also said that
pentachlorophenol was in there; right?" Balling replied, "[y]es".
- 37 -
The Guilbeaus' expert chemist, Dr. Subra, was allowed to be
called as a rebuttal witness during the middle of the defense's
case-in-chief; the Guilbeaus' counsel stated that it was for the
sole purpose of rebutting testimony "on the volatility of PCP".
But, Dr. Subra testified solely about the volatility of
pentachlorophenol when used as a wood preservative; she did not
testify about sodium pentachlorophenate. She opined that
pentachlorophenol, which the Guilbeaus' counsel called "PCP", is
volatile, and would be more likely to go into the air if mixed with
volatile chemicals in the adhesive than by itself; and that it was
more toxic when combined with other chemicals than when considered
separately.
Considering Balling's testimony in its entirety, and in light
of all the other evidence, including the MSDS and other exhibits,
the Guilbeaus' contention that Balling admitted that
pentachlorophenol was in the product is unwarranted. True, Balling
was at times careless, failing to correct the Guilbeaus' attorney
every time counsel referred to pentachlorophenol as an ingredient
of the adhesive. And, Henry must shoulder some of the blame. Not
only did its counsel fail to object to the numerous references to
pentachlorophenol; it also did not conduct redirect examination of
Balling, in which it could have cleared up the discrepancies. (In
any event, failure to object to use of the term
"pentachlorophenol", for which the dissent asserts Henry could not
pass plain error muster, is different from relying for defect on an
ingredient that was not in the product.)
- 38 -
But, the Guilbeaus' trial counsel must bear the lion's share
of the responsibility, because their questions consistently were
about pentachlorophenol, even though the MSDS stated that the
product contained sodium pentachlorophenate, not pentachlorophenol,
and Balling had testified on direct examination that the product
contained sodium pentachlorophenate. Whether counsel acted out of
ignorance, or in an effort to mislead the jury and trick Balling
(it certainly appears to be the latter) is unknown; but it makes no
difference because, irrespective of their motive, the questions,
which assumed a fact that was not in evidence, are not evidence.
In any event, the gist of Balling's testimony is clear when
considered in the proper context: the adhesive contained sodium
pentachlorophenate. This conclusion is reinforced by the testimony
of Henry's expert witness, Dr. Berger, who was accepted as an
expert in environmental health, with sub-specialties in chemistry,
industrial hygiene, toxicology, pathology, general medicine,
psychiatry, neuroscience, and occupational medicine.
Although Dr. Berger's testimony on direct examination contains
several references to pentachlorophenol, on redirect he cleared up
any possible confusion about which substance was in Henry's
adhesive:
Q. .... Have you done some research in the
past on sodium pentachlorophenate?
A. Sure. First of all, we heard some
testimony about pentachlorophenol. That's not
in this case. It's the salt, sodium
pentachlorophenate. It's a completely
different compound. It's a non-volatile salt.
I have the MSDS from the people who made it,
their own analytical chemists, saying that
- 39 -
it's perfectly inert and has no vapor
pressure. And I also have some documents that
attest to the low ... volatility. In fact, it
needs steam ... to get it to volatilize. And
it's been studied by the world health
organization. And there are no reported cases
of any nerve injury, even in workers who make
it in all of North America.
Moreover, when asked whether sodium pentachlorophenate in
sufficient amounts will attack the body, he replied:
You'd have to paste it on the body. It can't
leave the ground. If you put it on the
ground, it's dead there. It's not going to
move. It doesn't volatilize. The MSDS says
it has no vapor pressure.... Your body would
have to find it and come in contact with it.
[If it became toxic to the body, it affects]
[t]he liver, the heart, and the kidneys. It's
not known to affect the nervous system at all,
as studies have shown. It's never been
associated in North America or Europe with any
disease either of the central or peripheral
nervous system in workers who make it, who are
the most exposed of all.... [T]hey can burn
their skin. They can get kidney problems....
Their livers tend to have elevated enzymes,
and they're monitored for that. But not in
your nervous system.... That's why this is a
puzzle to me, why in this case it's being
associated that way.
Finally, noting the failure of the Guilbeaus' chemical expert,
Dr. Subra, to distinguish between sodium pentachlorophenate and
pentachlorophenol in her testimony, discussed supra, counsel asked
Dr. Berger whether the two compounds are identical; he replied, "Of
course not". Dr. Berger explained the difference as follows:
If you take sodium, which is explosive on
you, and chlorine gas, which will burn your
eyes, that's very different from sodium
chloride, the salt of them, which tastes good
and we're made of.... Now, in this particular
case the only product is the salt. It's a
different compound, and its manufacturers and
analytical chemists have certified to the
- 40 -
government that it doesn't vaporize. It has
no vapor pressure. And my knowledge, in the
industrial community, is the same, and I have
looked in texts and that's the same.
Pentachlorophenol is an entirely different
substance.
I heard Ms. Subra's testimony, and I
wouldn't say that there's any text that agrees
with her. The conference of governmental
hygienists says it takes steam to evaporate
pentachlorophenol. And steam is 220 -- 215,
212 degrees Fahrenheit.
The compound here is inert, has no vapor
pressure, isn't volatile; that's sodium
pentachlorophenate. And after the adhesive is
laid, it diffuses in the oil and stays there
to kill funguses, algae, snails, stuff like
that.
Dr. Berger's testimony was unrebutted. The only evidence
offered by the Guilbeaus in an attempt to rebut it was the
testimony of Dr. Callender. Although he is not a chemist and was
not accepted as an expert witness in that field, he was asked
(without objection) only whether "pentachlorophenol when in the
form of sodium pentachlorophenate" will evaporate. He replied that
"it does volatilize to a certain degree and in the solid form", but
then went on to testify about pentachlorophenol, not sodium
pentachlorophenate, opining that Guilbeau was exposed to
pentachlorophenol, and that the volatile organics and the
pentachlorophenol in Henry's adhesive caused Guilbeau's brain
damage.
As stated, Dr. Callender never explained the basis for his
testimony that sodium pentachlorophenate is a form of
pentachlorophenol, and never testified about the characteristics or
toxicity of sodium pentachlorophenate. (In fact, at oral argument,
- 41 -
the Guilbeaus' counsel admitted that no one testified that sodium
pentachlorophenate would dissolve in organic solvents and produce
the pentachlorophenol radical.)
Based on the foregoing, the verdict cannot be sustained under
the Guilbeaus' theory (claim) that the product was defective
because it contained pentachlorophenol. As discussed, neither
sodium pentachlorophenate nor pentachlorophenol were detected by
the laboratory that the Guilbeaus' attorneys retained to test
samples of the adhesive for 40 different volatile organic
compounds. The Guilbeaus never disputed Henry's evidence that
sodium pentachlorophenate and pentachlorophenol are different
substances, and failed to present any testimony by a qualified
expert witness that sodium pentachlorophenate is a form of
pentachlorophenol, that it has the same toxicity as
pentachlorophenol, or that the amount of it in Henry's adhesive was
capable of causing Guilbeau's alleged injuries. The dissent agrees
that "there is no evidence that the glue contained
pentachlorophenol" and, therefore, "any testimony based upon the
presence of pentachlorophenol cannot support the verdict".
b.
The Guilbeaus contend erroneously that, irrespective of
whether the product contained pentachlorophenol, they proved that
it was defective because of organic solvents.45 Although they
The dissent, in discussing the evidence of causation, relies
on Dr. Harper's opinion that Henry's adhesive contained organic
solvents which cause toxic encephalopathy. Although it is not
necessary to address causation, it bears noting that Dr. Harper
conceded that, although he was told that Guilbeau was exposed to
- 42 -
presented some evidence about the toxicity of ethylbenzene,
methylene chloride, xylene, and methyl ethyl ketone, which their
testing laboratory found in the sample of adhesive to which
Guilbeau allegedly was exposed, their primary focus was on
pentachlorophenol, and the synergistic effects of it in combination
with the other ingredients.46
As stated, Dr. Callender testified that pentachlorophenol was
a "major actor" in the toxicity of the adhesive, and that it was
unreasonably dangerous and defective because it contained
pentachlorophenol. And, in closing argument, the Guilbeaus'
counsel told the jury: "They shouldn't have had the PCP in the
product, therefore, the answer to Question No. 1 [whether the
one and one-half gallons of "solvent" (not "adhesive"), he did not
know how much "solvent" was in Henry's adhesive (according to
Balling's uncontradicted testimony, each gallon of adhesive
contained only one cupful of solvent) and could not say how much of
it entered Guilbeau's brain, because such calculations are not very
helpful and can rarely be made in any meaningful way. Henry's
adhesive was advanced by Dr. Harper as the most likely cause of
Guilbeau's problems based on the history of exposure reported to
him by Guilbeau. Dr. Harper acknowledged that, if Guilbeau had
said nothing about the adhesive and had mentioned only exposure to
carpet, then his opinion would be that the carpet was the most
likely cause of Guilbeau's toxic encephalopathy. None of
Guilbeau's experts' opinions are supported by any scientific
evidence based on a dose-response relationship even remotely
comparable to the facts of Guilbeau's exposure to the ingredients
in Henry's adhesive.
Although they also presented evidence about the toxicity of
toluene and trichloroethane, there was no evidence that those
compounds were present in the bucket of adhesive that was used to
install the carpet in the mobile home. The Guilbeaus' testing
laboratory found those ingredients only in the one-gallon can of
adhesive, which was purchased by the Guilbeaus' counsel.
- 43 -
product is unreasonably dangerous] is `Yes'".47
2.
In the alternative, Henry contends that, as a matter of law,
the Guilbeaus cannot establish that the adhesive is unreasonably
dangerous on the basis of a single adverse reaction by one
individual out of millions of applications of the same product
under similar conditions. The evidence shows that Henry has been
making adhesives since 1933. Henry's technical director, Balling,
testified that #270 adhesive had been on the market for over 20
years, since it was developed in his laboratory in the 1970s, and
is similar to other adhesives on the market in 1986 and at the time
of trial.
The adhesive is made in 600-gallon mixers, the lids of which
are never closed. Although exposed to it on a daily basis, none of
Of course, closing argument is not evidence; but, the
Guilbeaus' closing argument certainly underscores that the true
thrust of their claim that the adhesive was defective was their
unsupported assertion that it contained pentachlorophenol.
Although their counsel referred briefly to Dr. Callender's
testimony about the toxicity of the organic solvents in the
adhesive, and to scientific articles relied on by Dr. Callender,
documenting that long-term exposure to organic solvents can cause
brain damage and the symptoms experienced by Guilbeau, the only
chemical referred to specifically (other than one brief reference
to ammonia) was pentachlorophenol. The following is illustrative:
And as Dr. Callender told you, it was a design
defect to have the PCP in it. They could have
gotten something else to extend the shelf
life, because PCP is so dangerous that in 1984
they condemned it. And you heard the
testimony on that, and there's a whole book on
it that we've offered over here about PCP
[referring, without objection, to 1993
government report which court had ruled
inadmissible] and how dangerous it is.
- 44 -
Henry's chemists or the workers who make the adhesive in plants all
over the country have ever reported any injury; and workers have
retired in good health after 20-30 years. OSHA requires no
breathing apparatus or masks for the mixer employees, and Henry's
employees have not ever worn them or any special clothing. Balling
testified that thousands of people use Henry's #270 adhesive on a
daily basis, and that millions of gallons of it have been sold, but
that no one other than Guilbeau has ever reported being injured by
it.
Henry cites Lemoine v. Aero-Mist, Inc., 539 So. 2d 712 (La.
App. 3d Cir. 1989), for the proposition that a product is not
unreasonably dangerous because someone has an idiosyncratic
reaction to it. Lemoine, a legal secretary, returned to her office
after lunch; while she was out, a pesticide had been sprayed in the
office. Id. at 713. She became ill, and sued the pesticide
manufacturer, distributor, insurer, and sales representatives. Id.The trial court found for the defendants, and the appellate court
adopted its reasons, including that the product had been sprayed in
homes and offices many times daily without serious effects, that
Lemoine was not present when it was sprayed, and that a large
quantity was not used. Id. at 714. Louisiana cases were cited for
the propositions that the use of a chemical in the manufacture of
a product, which causes an extremely rare allergic reaction, is not
a defect; that there is no duty to warn against the possibility of
an unusual or rare idiosyncratic sensitivity; and that, in view of
Lemoine's rare susceptibility, it was not reasonably foreseeable
- 45 -
that she would have been injured. Id. at 715.
The Guilbeaus understandably discount the absence of evidence
of other injuries, contending that Henry's assertions of the lack
of other complaints are false because of Thibodeaux's testimony
that he was sickened as well when, after he took Guilbeau's place,
he occupied Guilbeau's office, and that all of his customers
"experienced the same problem from this very product".48 There was
At trial, one of the Guilbeaus' attorneys told the jury in
closing argument not to be concerned about the fact that Guilbeau
was the only person who had suffered an injury when the glue has
been used by thousands of people:
[Y]ou have enough evidence here ... to be able
to infer from what you've heard on this
witness stand and from the documents in
evidence to know what would happen ... when
other people did complain. Look what happened
when Mrs. Guilbeau complained. She's been
trying for seven years to get the facts of
this case, to find out what was in the glue so
she could take care of her husband who is
sick. And what has happened, "No, no, no."
And now ... they've put their people on the
stand to tell you there's no injury. That's
why there's no reported injuries....
Well, of course, there's not any reports
of hundreds that might have been injured
because they deny in every case that anybody
could be hurt by their glue, even though the
literature says that organic solvents cause
brain injury.
....
And I suspect, as I told you, there's been a
lot of these, because the way they have their
records, nobody gets hurt by their glue. So
they can honestly state in a deposition,
nobody has ever been reported, after thousands
of gallons of this stuff, of being hurt. I
don't believe it. I don't believe it.
The outrageousness of such argument speaks for itself.
- 46 -
no evidence that Thibodeaux ever reported his "sickness" to Henry.
He testified that the smell made him sick (dizziness, burning eyes
and nose), but he did not go to the doctor, took one afternoon off,
and has felt fine ever since. Although Thibodeaux testified that
customers complained or asked about the smell and that some of them
had to go outside because of burning eyes, there is no evidence
that any of the customers complained to Henry.
Finally, in equating the symptoms of Thibodeaux and his
customers with those experienced by Guilbeau, the Guilbeaus have
greatly exaggerated the evidence; there was no proof, or even any
suggestion, that Thibodeaux or any of his customers have been
diagnosed with chronic toxic encephalopathy or that they
experienced problems remotely similar in degree to those of which
Guilbeau complains.
The Guilbeaus do not even cite, much less attempt to
distinguish Lemoine; they cited no authority, and research reveals
none, for imposing liability under Louisiana law on the basis of a
single injury to a product that has been used by thousands of
people without any other reported injuries. Indeed, the authority
is to the contrary. See Booker v. Revlon Realistic Professional
Products, Inc., 433 So. 2d 407, 410 (La. App. 4th Cir. 1983)
(unusual or rare idiosyncratic sensitivity on plaintiff's part
would not provide a basis for recovery or even a requirement of a
warning from manufacturer); Quiroz v. Max Factor, Inc., 264 So. 2d
263, 266 (La. App. 4th Cir. 1972) (res ipsa loquitur inapplicable
where another reasonable explanation for plaintiff's scalp
- 47 -
irritation and hair loss was that she was unusually sensitive or
allergic to defendant's hair straightening product, and that her
rare idiosyncratic sensitivity, rather than a defect in the
product, was the sole cause of her injury); Thomas v. Gillette Co.,
230 So. 2d 870, 876 (La. App. 3d Cir.) (possibility of allergic
reaction to manufacturer's hair relaxant was so remote and unlikely
that manufacturer was under no duty to warn users or purchasers of
such a possibility; res ipsa loquitur inapplicable because there
was reasonable possibility that plaintiff's reaction was result of
rare idiosyncratic sensitivity rather than product defect), writ
ref'd, 255 La. 809, 233 So. 2d 249 (1970); Blalock v. Westwood
Pharmaceuticals, Inc., 1990 WL 10557 at *2 (E.D. La. 1990) (product
not defective if injuries result from rare or idiosyncratic
reaction, nor is manufacturer obligated to warn against possibility
of such a reaction; summary judgment granted for manufacturer
because reaction was idiosyncratic where defendant had sold nearly
one million units of sunscreen without a complaint except by
plaintiff).49 Even without considering the other problems with the
The dissent considers these cases inapplicable because of its
conclusion that Guilbeau proved that he was injured because he was
exposed to dangerous organic solvents, not because he had an
idiosyncratic reaction. But, even assuming that Guilbeau's injury
was caused by the organic solvents in the adhesive, that is not
enough to prove that the product was defective. Under Louisiana
law, a product is not defective merely because someone suffers an
idiosyncratic injury after being exposed to it. Based on the
evidence in the record, Guilbeau is the only person, among
thousands who were exposed to the adhesive during its manufacture
and use, who suffered such an injury. Accordingly, Guilbeau's
injury is, by definition, idiosyncratic. See WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY 1123, 1124 (1986) (defining "idiosyncratic"
as, inter alia, "peculiar to the individual"; defining
"idiosyncrasy" as, inter alia, an individual hypersensitiveness, as
- 48 -
Guilbeaus' proof, this basis alone, on the facts in this case,
would support reversal of the jury's verdict.50
3.
Two alternative bases are offered by the Guilbeaus for
upholding the verdict.
a.
The Guilbeaus claim that the verdict can be affirmed on the
ground that the adhesive was "unreasonably dangerous per se". They
maintain that, if all products containing asbestos are unreasonably
dangerous per se in Louisiana, it follows that this category "must
include a product that is accompanied by absolutely no warning, and
that contains methyl ethyl ketone, xylene, methyl chloride, ethyl
benzene, and toluene -- as well as pentachlorophenol, which has
been banned for the kind of use (in homes) to which it was put
here". This contention is rejected for several most obvious
reasons.
First, it is unclear whether the case was presented to the
jury on this theory. Second, it is patently absurd for the
Guilbeaus to compare Henry's adhesive to asbestos, when there is
uncontradicted evidence in the record that thousands of persons
have manufactured and used the adhesive for years and have not
to a drug or
food).
Henry maintains, as well, that even if Guilbeau's reaction
were not considered idiosyncratic, no reasonable trier of fact
could conclude that the risk of injury in this case outweighed the
utility of the product. See Halphen v. Johns-Manville Sales Corp.,
484 So. 2d 110, 115 (La. 1986). It is not necessary to reach this
issue.
- 49 -
reported injuries to Henry. But most important, as noted supra,
there was no evidence that Henry's adhesive contained some of the
above listed ingredients, much less that the quantities of those
ingredients were sufficient to cause injury.51
b.
Next, the Guilbeaus contend that, even if the evidence
presented to the jury is insufficient, the verdict should be upheld
based on evidence that they claim the district court excluded
improperly. They assert that the district court excluded
erroneously a 1993 report by the United States government, showing
the effects of ingredients in Henry's product, evidence of
evacuation of a government building, and lawsuits by eight
individuals, all of which were offered to rebut Henry's claim that
there had been no complaints regarding its adhesive;52 and that it
erroneously excluded labels used by Henry after the date of
Guilbeau's exposure, which represented that solvents and hazardous
ingredients had been removed from the product and admitted that
concentrated, prolonged inhalation causes brain damage, and were
offered to impeach Balling's testimony that the product was
As discussed, Henry's product contained sodium
pentachlorophenate, not pentachlorophenol. Sodium
pentachlorophenate has not been banned, and has been authorized for
use as a preservative; and there was uncontradicted evidence that
Henry used it for that purpose in its adhesive. See 21 C.F.R.
175:105(c).
In their initial brief, the Guilbeaus also challenged the
exclusion of a Henry floor covering complaint form; but, in their
reply brief, they conceded that the complaint "concerns product
performance, and it probably was within the trial court's
discretion to exclude it".
- 50 -
innocuous and to rebut Henry's assertion that there was no
scientific basis for Guilbeau's claim.
It cannot be determined whether the district court abused its
discretion in refusing to admit the 1993 government report, the
evidence regarding evacuation of a building, or the evidence of
other lawsuits, because the Guilbeaus did not include that evidence
in their proffers. Without knowing what ingredients were discussed
in the 1993 government report, the circumstances regarding the
evacuation of a building, and whether #270 adhesive was involved in
any of the eight lawsuits, it is impossible to determine whether
that evidence was relevant.53 Moreover, it cannot be determined
whether this evidence would have been sufficient to sustain the
verdict.
Because Henry never claimed that it would not be feasible to
make the adhesive without the solvents and sodium
pentachlorophenate, its product labels used after the date of
Guilbeau's alleged exposure were properly excluded from evidence as
subsequent remedial measures. FED. R. EVID. 407 (subsequent remedial
measures not admissible to show negligence or culpable conduct, but
may be admitted to prove feasibility of precautionary measures, if
controverted, or for impeachment). The labels were properly
Nor can any determinations be made about the nature of this
evidence from the questions asked by the Guilbeaus' counsel. It
appears that the Guilbeaus offered the 1993 government report
because of its statements about pentachlorophenol, which was not in
Henry's adhesive. The question regarding the evacuation of a
building does not even refer to any Henry products; and the
question about other lawsuits refers only to "Henry glue", without
specifying any particular product among the many that Henry makes.
- 51 -
excluded for the purpose of impeachment because they stated nothing
more than that concentrated, prolonged inhalation causes brain
damage, which Henry did not deny; its position was that there had
been no concentrated, prolonged inhalation by Guilbeau.
Accordingly, even if excluded improperly from evidence, the
subsequent product labels are not sufficient to sustain the
verdict.54
III.
The dissent "admit[s] that the jury may have found for
Guilbeau because it mistakenly thought that Henry's glue contained
pentachlorophenol." A review of the record under the proper
standard of review, including making all reasonable inferences in
favor of the Guilbeaus, leaves no doubt that such mistaken belief
is exactly why the jury so found. The judgment in favor of Olan
It is not necessary to reach any of the other issues
presented, including Henry's alternative contention that it is
entitled to a new trial because of the prejudicial trial tactics
and closing arguments of the Guilbeaus' attorneys; the Guilbeaus'
contentions on cross-appeal regarding remittitur, prejudgment
interest, and intervention; or the Stevens firm's appeal (any
recovery subject to recovery by Guilbeaus).
- 52 -
and Macklyn Guilbeau, and the judgment awarding expenses to the
intervenors, are REVERSED, and judgment is RENDERED in favor of
Henry.55
REVERSED and RENDERED
Emilio M. Garza, Circuit Judge, concurs in the judgment only.
REYNALDO G. GARZA, Circuit Judge, Dissenting:
I dissent. When the evidence in this case is properly
examined under the applicable standard of review, the evidence is
sufficient to support the verdict.
I.
The majority opinion sets out the correct standard of review.
This Court is to review all of the evidence in the light and with
all reasonable inferences most favorable to Guilbeau.56 The
majority fails, however, to properly apply the proper standard of
review. The majority draws inferences in favor of Henry, even in
As noted repeatedly at oral argument, and in this opinion, and
as reflected by the post-argument rejection of attempts by the
Guilbeaus' counsel to make improper filings, the conduct by the
Guilbeaus' trial counsel and appellate counsel causes more than
great concern. Counsel is cautioned that such conduct in the future
will result in the imposition of severe sanctions. But, this great
concern goes beyond sanctions; the greatest concern is that counsel
seems intent on winning at any cost, notwithstanding concomitant
violations of long established rules of practice and evidence (all
designed to attempt to ensure fundamental fairness), and in
disregard, it seems, of the truth. Such tactics will not be
tolerated by this court.
See Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.
1969)(en banc).
- 53 -
the face of evidence supporting Guilbeau, and at times ignores
crucial testimony in Guilbeau's favor. I am therefore forced to
dissent and show that the evidence supports the jury's verdict.
In this diversity case, we must apply Louisiana products
liability law as set out in Halphen v. Johns-Manville Sales Corp.57
The Louisiana legislature overruled an aspect of Halphen when it
enacted the Louisiana Products Liability Act.58 The Act did not
take effect, however, until September 1, 1988, and the Louisiana
Supreme Court has held that it does not apply retroactively.59
Because Guilbeau was exposed to Henry's product before September 1,
1988, we look to the case law that developed before the Act came
into effect.60
Under Halphen, Guilbeau must show (1) he was injured; (2) his
injury was caused by a condition in Henry's glue; (3) the condition
made the glue unreasonably dangerous for normal use; and (4) the
condition existed at the time the glue left Henry's control.61
There are several categories of unreasonably dangerous products.62
484 So.2d 110 (La. 1986).
Gilboy v. American Tobacco Co., 582 So.2d 1263, 1264 (La.
1991).
Id.Klem v. E.I. DuPont de Nemours Co., 19 F.3d 997, 1000 (5th
Cir. 1994).
See Klem, 19 F.3d at 1000; Antley v. Yamaha Motor Corp., 539
So.2d 696, 699-700 (La. App. 3d Cir. 1989)(citing Halphen, 484
So.2d at 113).
Klem, 19 F.3d at 1000. Under Louisiana law, a product is
unreasonably dangerous:
(1) if the danger involved in its use outweighs its
utility, it is said to be per se unreasonably dangerous;
(2) in construction or composition, if it contains an
One of these categories is products that are unreasonably dangerous
because of a failure to warn. Henry is required to provide an
adequate warning of any danger inherent in the normal use of the
glue that is not within the knowledge of or obvious to the ordinary
user.63 If Henry fails to adequately warn about a danger related
to the way the glue is designed, the glue is unreasonably
dangerous.64
II.
When the evidence is reviewed in the light most favorable to
Guilbeau, it is sufficient to satisfy all the elements of a
products liability cause of action. First, Guilbeau was injured.
He was sickened after being exposed to Henry's glue. Second, his
injury was caused by a condition in Henry's glue; namely, the
presence of organic solvents. Third, Henry's failure to warn about
the presence of organic solvents made the glue unreasonably
dangerous. Finally, the organic solvents were present when the
glue left Henry's control.
A.
unintended abnormality or condition that renders it more
dangerous than it is designed to be; (3) for lack of
warning, if the manufacturer failed to adequately warn of
the dangers that attend its use; or (4) by design, if
safer alternative products were available or the product
could have been designed in a less dangerous manner.
Id. at 1000-1001.
See Halphen, 484 So.2d at 115.
See id.- 55 -
The evidence is sufficient to support a finding that Guilbeau
was injured after being exposed to Henry's glue. Before Guilbeau
was exposed to Henry's glue, he was a relatively healthy and well-
adjusted man. His wife testified that he was not a sickly man, but
was "healthy . . . a robust man. . . . and there was not a thing
wrong with him." His co-workers also testified that he was "never
sick," was "healthy," and that he "never complained . . . at
leas[t] until they start[ed] putting down the glue."65 Granted, his
health was not perfect. He smoked, had a few previous upper
respiratory infections, and had bouts with high blood pressure.
But his health was dramatically better before he was exposed to
Henry's glue than after his exposure.
He was also psychologically well-adjusted. His wife and co-
workers testified that, before he was exposed to Henry's glue, he
was a happy man, a wonderful husband and an extremely successful
salesman. Although he did attempt suicide after his wife refused
his initial marriage proposal in 1969, seventeen years before he
was exposed to Henry's glue—his wife testified that he did not do
"any other thing like that" after 1969.
The majority tries to cast aspersions on Guilbeau's sanity by
pointing out that his honorable discharge from the Army, which
Guilbeau's attorney asked Rollin Duplechin, one of Guilbeau's
co-workers, "But before the time that ya'll put the glue down, had
you ever seen Mr. Guilbeau appearing to be sick in any way?"
Duplechin replied, "No, never was sick. Never complained to us, at
leas[t] until they start[ed] putting down the glue." Similarly,
Jonathan Shaw, who also worked with Guilbeau, testified that
Guilbeau did not complain about odors or smells before the
exposure, and that he was "healthy and fun to be around" before he
was exposed the Henry's glue.
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stated that he was discharged for having a knee problem, was signed
by a psychiatrist. However, his wife testified that he hurt his
knee before he enlisted in the Army, and then dislocated that same
knee while in the service when he slid down an embankment. When
viewed in the light most favorable to the Guilbeau, this evidence
indicates that he was discharged because he had a knee problem.
Despite the requirement that all inferences be drawn in Guilbeau's
favor, however, the majority infers from the fact that a
psychiatrist signed the discharge that Guilbeau was actually
discharged for other reasons. Such an inference is simply not
allowable under the proper standard of review.
The majority attempts to further question Guilbeau's mental
stability by pointing out that Dr. Clause prescribed tranquilizers
to Guilbeau for anxiety in the early-to-mid 1970's. Dr. Clause
testified, however, that the last time he prescribed anxiety
medication to Guilbeau was May 27, 1977, nine years before his
exposure to Henry's glue. Dr. Clause also testified that Guilbeau
was not chronically nervous or anxious, and that during 28 years of
treatment he saw no sign that Guilbeau was suffering from a
psychiatric disorder. Dr. Clause's opinion was collaborated by
Guilbeau's wife and co-workers' testimony that, before the
exposure, Guilbeau did not suffer from the "temper tantrums" and
other psychological problems that he suffered after he was exposed
to Henry's glue. Finally, Dr. Clause testified that Guilbeau never
complained to him about a problem he did not have.
After Guilbeau was exposed to Henry's glue on August 15, 16
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and 18, 1986, both his physical and mental health drastically
deteriorated. He began to suffer from equilibrium problems,
impaired judgment, inability to control his emotions, panic
attacks, cacosmia,66 and seizures. All of the witnesses—including
Dr. Clause, who was called by the defense—who observed Guilbeau
both before and after he was exposed to Henry's glue agree that he
was dramatically sickened immediately after the exposure.
In short, the evidence is sufficient to show that Guilbeau
exhibited many symptoms after being exposed to Henry's glue that he
did not exhibit before exposure. Although Guilbeau may not have
been in perfect health before he was exposed to Henry's glue, the
evidence definitely supports a finding that he was better before
exposure than afterwards.
B.
Having found that the evidence is sufficient to show that
Guilbeau became sick after being exposed to Henry's glue, We now
turn to the next question: Whether the evidence supports a finding
that Guilbeau's sickness was caused by a condition in Henry's glue.
Our review of the record shows that the evidence is sufficient to
support such a finding. Specifically, there is sufficient evidence
to show that Guilbeau was injured because he was exposed to organic
solvents that were present in Henry's glue.
First, causation is supported by common sense inferences from
A condition in which innocuous smells cause severe nausea.
Dr. Harper testified that cacosmia is an indication of exposure to
organic solvents.
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the lay testimony. Guilbeau's wife and co-workers testified that
he became sickened after being exposed to the glue. That testimony
supports a common sense inference that the glue caused his
sickness.
Second, Dr. Harper testified that Guilbeau's sickness was most
likely caused by exposure to organic solvents contained in Henry's
glue. Dr. Harper was a board certified neurologist, who was also
trained in pharmacology and psychopharmacology, and who had broad
experience with the toxic effects of various substances. Dr.
Harper testified that Guilbeau suffered from toxic encephalopathy,
a form of brain damage, and that exposure to Henry's glue was the
most likely cause of Guilbeau's brain damage. Dr. Harper's opinion
was based on several facts. First, he based it on the fact that
Guilbeau's health and behavior changed drastically after he was
exposed to Henry's glue. Second, he based it on Guilbeau's
cacosmia. Dr. Harper testified that cacosmia is caused by exposure
to chemicals, and that he had never seen a patient who suffered
from cacosmia that was not exposed to chemicals. He also based his
opinion on a SPECT scan, which showed decreased blood flow in
portions of Guilbeau's brain in a pattern that was consistent with
toxic encephalopathy. Finally, he based his opinion on the fact
that Henry's glue contained several organic solvents, including
ethylbenzene, methylene chloride, xylene, methyl ethyl ketone and
toluene, all of which cause toxic encephalopathy. Notably, Dr.
Harper did not base his opinion upon the presence of
pentachlorophenol. In fact, he never mentioned the word
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pentachlorophenol during his testimony. Dr. Harper also testified
that Guilbeau's injury was not caused by smoking, sawdust or
formaldehyde, and that it was not a spontaneous psychological
experience.
In summary, Dr. Harper based his opinion on the fact that
Henry's glue contained chemicals that cause brain damage, that
Guilbeau was exposed to the glue, and that shortly thereafter he
went from being relatively healthy to suffering from toxic
encephalopathy. This basis is sufficient to support his testimony
that the organic solvents in Henry's glue caused Guilbeau's
sickness.
Guilbeau also presented the testimony of Dr. Reddy, a Ph.D.
chemist. Dr. Reddy's testimony establishes that Henry's glue
contains the organic solvents that Dr. Harper said caused
Guilbeau's sickness. Henry refused to disclose the glue's
ingredients until midway through trial, so Guilbeau was forced to
have Dr. Reddy analyze two samples of Henry's glue to determine
which organic solvents were present. In one sample, Dr. Reddy
found significant amounts of ethylbenzene, methylene chloride,
xylene and methyl ethyl ketone. In the other sample, Dr. Reddy
found those four solvents, as well as toluene and trichloroethane.67
Dr. Reddy explained that the reason that the second sample
contained organic solvents that the first sample did not was that
the plastic can from which the first sample had been taken had been
opened. Volatile organic solvents like toluene and trichloroethane
easily evaporate from an open can. Thus, the jury could have
reasonably inferred that the glue to which Henry was exposed
contained toluene and trichloroethane, but that those solvents had
evaporated out of the plastic can from which the first sample had
been taken before Guilbeau had it tested.
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These are the same organic solvents that Dr. Harper testified were
the most likely cause of Guilbeau's toxic encephalopathy.
Dr. Callender also testified that Guilbeau was sickened by
exposure to Henry's glue. Dr. Callender is board certified in
internal medicine, and specializes in neurotoxicology—the study of
how chemicals affect the nervous system, including the brain. He
testified that Guilbeau suffered from toxic encephalopathy, which
was caused by exposure to compounds contained in Henry's glue. He
based his opinions on several factors. First, Guilbeau exhibited
numerous symptoms after being exposed to Henry's glue that he did
not exhibit before exposure. Second, chemicals that cause toxic
encephalopathy, including organic solvents, were present in Henry's
glue. Third, the symptoms Guilbeau suffered were consistent with
"acute organic solvent exposure syndrome," a cluster of symptoms
associated with exposure to organic solvents. Fourth, the SPECT
scan showed areas of decreased brain function, which was consistent
with toxic encephalopathy. Finally, Dr. Callender eliminated all
possible confounders; that is, he determined that Guilbeau's
symptoms were not caused by other factors.
Dr. Callender's opinions are limited, however, by his mistaken
belief that Henry's glue contained pentachlorophenol. Dr.
Callender's mistaken belief arose from his misreading of the
Material Safety Data Sheet (MSDS) for Henry's glue. The MSDS
indicated that Henry's glue contained sodium pentachlorophenate.
Dr. Callender mistakenly believed that sodium pentachlorophenate
was a form of pentachlorophenol. Dr. Callender went on to describe
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in great detail the dangerous nature of pentachlorophenol, and how
pentachlorophenol, in concert with the organic solvents, caused
Guilbeau's injuries.
Henry's counsel did nothing to clear up Dr. Callender's
confusion. He did not object to Dr. Callender's testimony
regarding pentachlorophenol on the ground that there was no
evidence that Henry's glue contained pentachlorophenol, nor did he
point out the difference between pentachlorophenol and sodium
pentachlorophenate during cross-examination. Further, both Henry's
counsel and Henry's expert witnesses referred to the sodium
pentachlorophenate in the glue as pentachlorophenol on numerous
occasions. In fact, Henry's counsel did not bring out the fact
that the glue did not contain pentachlorophenol until the last day
of trial, when Dr. Berger, one of Henry's experts, pointed out the
difference between the two compounds and testified that the glue
did not contain pentachlorophenol.
Despite the fact that Henry did not object to Guilbeau's
experts' testimony regarding pentachlorophenol, the fact remains
that there is no evidence that the glue contained
pentachlorophenol. Therefore, any testimony based upon the
presence of pentachlorophenol cannot support the verdict. The fact
that Henry's glue did not contain pentachlorophenol does not end
our inquiry, however. This Court must still examine the record to
see if there is sufficient testimony that is not based on the
presence of pentachlorophenol to support the verdict.
When the record is reviewed in the light most favorable to
- 62 -
Guilbeau, it does contain sufficient evidence for a reasonable
person to find that organic solvents in the glue caused Guilbeau's
sickness. A reasonable juror would have believed Dr. Berger's
statement that the glue did not contain pentachlorophenol,
especially since Henry's counsel emphasized during his closing
argument that the glue did not contain pentachlorophenol. There
was evidence that the glue contained organic solvents, however.
Based on the testimony of Dr. Callender and Dr. Harper, a
reasonable juror could find that Guilbeau's injuries were caused by
those organic solvents.
Of course, Henry presented evidence that Guilbeau's injuries
were not caused by the glue. Dr. Friedberg testified that Guilbeau
suffered from a somatization disorder, although he could not rule
out the possibility that Guilbeau's problems were caused by
exposure to organic solvents. Dr. Rees and Dr. Black also opined
that Guilbeau was a somatisizer. Further, they testified that
Guilbeau did not suffer from brain damage, and that his problems
were not caused by exposure to organic solvents. Finally, Henry
presented the testimony of Dr. Berger, who testified that Guilbeau
suffered from lung disease and personality problems, but was not
injured by exposure to Henry's glue. Henry's experts' testimony
was inconsistent with Guilbeau's experts' testimony. Guilbeau's
experts testified that his problems were caused by exposure to
organic solvents, while Henry's experts testified that his problems
were psychological. The resolution of this conflict, however, was
strictly within the province of the jury. The jury apparently
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found Guilbeau's experts more credible, and believed them instead
of Henry's experts. This Court does not have the power to overturn
such a credibility determination. Thus, the testimony of
Guilbeau's experts, bolstered by common sense inferences from lay
testimony, is sufficient evidence upon which a reasonable juror
could find that Guilbeau was sickened as a result of being exposed
to Henry's glue.
C.
The evidence was sufficient to establish that Henry's glue was
unreasonably dangerous because Henry failed to warn about the
danger posed by organic solvents. It is undisputed that Henry did
not include a warning about the danger of organic solvents on the
glue's label. Dr. Callender testified that the glue should have
contained a warning. His opinion was not contingent on the
presence of pentachlorophenol in the glue. In fact, he testified
that, even if the glue did not contain pentachlorophenol, it was
still unreasonably dangerous because it did not warn about the
dangerous organic solvents. Specifically, Dr. Callender testified
as follows:
[Mr. Musselwhite] Now, if for any reason the defendants
were to contend . . . that pentachlorophenol was not in
the product[,] . . . would the warning be pretty much the
same except you'd just eliminate the reference to
pentachlorophenol:
[Dr. Callender] Yes.
[Mr. Musselwhite] So you would still warn as to these
other chemicals that showed up on the tests run by Dr.
Reddy and Dr. Subra, still warn as to those chemicals in
the same way you've warned here?
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[Dr. Callender] Right.
[Mr. Musselwhite] Is that correct? And the failure to
do so would render the label inadequate; is that your
opinion?
[Dr. Callender] Right.
The evidence supports Dr. Callender's testimony. Dr. Reddy found
that Henry's glue contained significant amounts of organic
solvents. Dr. Callender's testimony established that the dangers
of organic solvents were well established in the scientific
literature when Henry manufactured the glue. Thus, there is a
sufficient foundation for Dr. Callender's opinion testimony that
the glue should have warned about the dangers of organic solvents.
Dr. Callender's opinion testimony, in turn, was sufficient evidence
for a reasonable juror to find that Henry's glue was unreasonably
dangerous because of Henry's failure to warn.
The majority contends that, assuming Guilbeau was sickened by
Henry's glue, the product was not unreasonably dangerous because,
out of the millions of applications of Henry's glue, Guilbeau was
the only person to have an adverse reaction. In making this
contention, the majority cites Lemoine v. Aero-Mist, Inc.,68 a
Louisiana case that held that a product is not unreasonably
dangerous because a person has an idiosyncratic reaction to it.
Lemoine, as well as the line of cases upon which its holding is
based,69 is easily distinguishable from Guilbeau's case. In
539 So.2d 712 (La. App. 3d Cir. 1989).
See, e.g., Booker v. Revlon Realistic Professional Products,
Inc., 433 So.2d 407, 410 (La. App. 4th Cir. 1983); Rhodes v. Max
Factor, Inc., 264 So.2d 263, 266 (La. App. 4th Cir. 1972).
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Lemoine, a woman suffered an allergic reaction after she was
exposed to an insecticide manufactured by Aero-Mist, Inc.70 The
trial court found that her allergic reaction was very rare, and
held that a manufacturer has no duty to warn against the
possibility of a rare or idiosyncratic sensitivity.71 The other
cases cited by the majority are to the same effect.72
The evidence in this case, however, supports a finding that
Guilbeau did not have an idiosyncratic reaction. Guilbeau
presented evidence that the glue contained organic solvents, which
are known to be dangerous. He also presented evidence that he was
injured because he was exposed to dangerous organic solvents, not
because he had an idiosyncratic allergic reaction. His experts
testified that organic solvents are simply dangerous, not that they
cause an allergic reaction in a few people.
The majority simply misconstrues Louisiana law. A plaintiff
does not have to prove that other people have been injured by a
product in order to show that the product was unreasonably
dangerous. He simply has to show that the product—either because
of inherent dangerousness or because or an inadequate warning—is
Lemoine, 539 So.2d at 713.
Id. at 713-14.
See, e.g., Booker, 433 So.2d at 410 (holding that plaintiff
could not recover when the trial court found that she either
misapplied the product or suffered an idiosyncratic allergic
reaction to it); Rhodes, 264 So.2d at 266 (Holding that plaintiff
could not recover for injury caused by her idiosyncratic allergic
reaction to a product).
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unreasonably dangerous to a reasonably foreseeable user.73 Because
Guilbeau showed that the presence of organic solvents made the glue
unreasonably dangerous for normal use because of Henry's failure to
provide an adequate warning, rather than showing that he had a rare
allergic reaction to the glue, the evidence is sufficient to uphold
the verdict.
D.
The evidence was sufficient to show that the glue contained
organic solvents when it left Henry's control. Dr. Reddy testified
that a three-and-a-half gallon plastic can of Henry's glue
contained four organic solvents: ethylbenzene, methylene chloride,
xylene and methyl ethyl ketone. Dr. Reddy also tested a metal can
of Henry's glue, which was purchased after Guilbeau's exposure, and
found those four solvents, as well as toluene and trichloroethane.
Dr. Reddy explained that the reason that the metal can contained
organic solvents that the plastic can did not was that the plastic
can had been opened. Volatile organic solvents like toluene and
trichloroethane easily evaporate from an open can. Thus, the jury
could have reasonably inferred that the glue to which Henry was
exposed contained toluene and trichloroethane, but that those
solvents had evaporated out of the plastic can before Guilbeau had
it tested. Dr. Reddy's analysis of Henry's glue, especially that
of the unopened can bought off the shelf, is sufficient evidence to
Extremely rare or idiosyncratic allergic reactions are not
reasonably foreseeable. Thus, there is no duty to warn about them.
- 67 -
support the jury's finding that the glue contained organic solvents
when it left Henry's control.
III.
Because, as we have shown, the record contains sufficient
evidence to uphold the verdict, I dissent. Although I admit that
the jury may have found for Guilbeau because it mistakenly thought
that Henry's glue contained pentachlorophenol, there is sufficient
evidence to support the inference—which, like all inferences
supporting the verdict, must be made—that the jury based its
verdict on the presence of organic solvents rather than on the
mistaken belief that the glue contained pentachlorophenol.
Further, Henry neither objected to Guilbeau's evidence
regarding pentachlorophenol nor cross-examined Guilbeau's experts
on the ground that the glue did not contain pentachlorophenol. In
fact, Henry did not even point out that the glue did not contain
pentachlorophenol until the last day of trial. The first time that
Henry objected to Guilbeau's experts use of the terms
"pentachlorophenol" or "PCP" was in its motion for a new trial.
Because Henry failed to even object to Guilbeau's presentation of
evidence regarding pentachlorophenol during trial, I do not think
that the prejudice that Henry suffered because the jury was told
about pentachlorophenol is the kind of plain error that would
mandate a new trial.74 Further, even if we found that the jury was
See McCann v. Texas City Refining, Inc., 984 F.2d 667, 673
(5th Cir. 1993)(holding that issues raised for the first time on
appeal are reviewed only for plain error).
- 68 -
affected by evidence of pentachlorophenol that should not have been
before it, the worst that this Court should do would be to remand
this case for a new trial, not to reverse and render.
For the reasons stated above, I would AFFIRM the district
court.
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