Douglas Tenbarge etc v. Ames Taping Tool ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-3888
___________
Douglas R. Tenbarge; Lilly Tenbarge, *
*
Appellants, *
* Appeal from the United
States
v. * District Court for the
* Eastern District of
Missouri.
Ames Taping Tool Systems, Inc.,
*
*
Appellee. *
___________
Submitted: June 11, 1997
Filed: October 22, 1997
___________
Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit
Judge, and BEEZER, Senior Circuit Judge.1
___________
HENLEY, Senior Circuit Judge.
Douglas R. and Lilly Tenbarge appeal from a judgment
of the district court granting summary judgment in favor
of Ames Taping Tool Systems, Inc. We reverse and remand
for further proceedings.
1
The Honorable Robert R. Beezer, United States Senior Circuit Judge for the
Ninth Circuit, sitting by designation.
Background
From 1983 until 1993, Douglas Tenbarge worked as a
drywall installer. His primary duty was to apply drywall
compound and tape along the seams of drywall panels. In
applying the compound and tape, Tenbarge used an Ames
Auto Taper, known as a Bazooka. In 1991, Tenbarge
began to experience numbness in his hands and fingers and
saw a physician, who eventually referred him to Dr.
Richard Chusak, a plastic surgeon. In November 1992, Dr.
Chusak diagnosed bilateral carpal tunnel syndrome (CTS),
and in December 1992 and January 1993 operated on both of
Tenbarge's hands.
In 1994, Tenbarge and his wife filed an action in
Missouri state court against Ames, the manufacturer and
lessor of the Bazooka. Tenbarge raised Missouri law
claims of strict liability, negligence, and breach of
warranty. His wife raised a loss of consortium claim.
After removing the action to federal district court, Ames
moved for summary judgment. Citing Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the
company argued that there was an "insufficient scientific
basis to prove that Tenbarge's use of the Bazooka caused
him to suffer [CTS]." J.A. at 45. In support of its
motion, Ames submitted portions of the depositions of
William Nelson, the Tenbarges' ergonomics expert, and
Digby Willard, their design expert. The Tenbarges
opposed the motion, asserting there was sufficient proof
-2-
of causation. In part, they relied on Dr. Chusak's
deposition, in which he expressed the opinion that the
repetitive and strenuous use of the Bazooka caused
Tenbarge's CTS and that there were no other contributing
factors. In reply, Ames submitted portions of the
deposition of Dr. Peter Nathan, who, at the company's
request, examined Tenbarge in February 1996. Dr. Nathan
stated that although no one knew the precise cause of
Tenbarge's CTS,
-3-
Tenbarge presented several risk factors associated with
CTS. The doctor noted that Tenbarge had rheumatoid
arthritis, was "somewhat" overweight at 220 pounds, and
had admitted to drinking twelve beers a week.
The district court granted Ames' motion for summary
judgment. The court found it unnecessary to resolve the
Daubert issue, holding that even if the expert testimony
was admissible it would fail to establish that the
Bazooka was a substantial factor in causing Tenbarge's
CTS. The court acknowledged Dr. Chusak's opinion that
the Bazooka caused Tenbarge's CTS, but discounted his
opinion because he had not ruled out other work and non-
work related activities that could have contributed to
the CTS. In particular, the court noted that Tenbarge
had rheumatoid arthritis, was overweight, and consumed
alcohol. The Tenbarges filed a post-judgment motion,
arguing that the court had improperly granted summary
judgment sua sponte. They asserted that Ames had not
raised a causation issue in its summary judgment motion
and that the court erred in relying on Dr. Nathan's
deposition because they had not had an opportunity to
respond to it. The Tenbarges argued that Dr. Nathan's
conclusions about contributory factors were either
refuted or unsupported by the record, citing to portions
of Dr. Chusak's and Dr. Nathan's depositions and to
additional medical records. The district court denied
the motion, holding it had not raised the issue of
-4-
causation sua sponte and refusing to consider the
additional citations or evidence.
Issues
"In reviewing a decision of a district court to grant
summary judgment we must apply the same strict standard
as the district court." Prudential Ins. Co. v. Hinkel,
1997 WL 422798, at *1 (8th Cir. July 30, 1997) (No. 96-
3684) (internal quotation
-5-
omitted). We repeat those well-established standards. "A
court should grant summary judgment if 'there is no
genuine issue of material fact' and 'the moving party is
entitled to a judgment as a matter of law.' " Id.
(quoting Fed. R. Civ. P. 56(c)).
Of course, a party seeking summary judgment
always bears the initial responsibility of
informing the district court of the basis for
its motion, and identifying those portions of
"the pleadings, depositions, answers to
interrogatories, admissions on file, together
with the affidavits, if any," which it believes
demonstrate the absence of a genuine issue of
material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting Fed. R. Civ. P. 56(c)) (emphasis added). In
the face of a properly supported motion, "[t]he burden
then shifts to the nonmoving party to 'set forth specific
facts showing that there is a genuine issue for trial.'
" Prudential, at *1 (quoting Fed. R. Civ. P. 56(c)).
"[I]n ruling on a summary judgment motion, the [c]ourt
views the facts in a light most favorable to the
nonmoving party and allows that party the benefit of all
reasonable inferences to be drawn from that evidence."
Id. at *2.
Applying those standards, we believe that the
district court erred in granting summary judgment. Even
if Ames had generally raised a causation issue in its
summary judgment motion, the district court erred in
relying on Dr. Nathan's deposition. Because Ames did not
initially rely on the doctor's deposition or any medical
-6-
evidence in support of its summary judgment, it did not
fulfill its burden of "identifying those portions" of the
record which "demonstrate the absence of a genuine issue
of material fact." Celotex, 477 U.S. at 323. Thus, the
Tenbarges did not have a meaningful opportunity to show
that there were disputed issues of fact as to the alleged
contributory causative factors. Cf. Madewell v. Downs,
68 F.3d 1030, 1048 (8th Cir. 1995) (sua sponte grant of
summary judgment "proper only where the party against
whom judgment will be entered was given sufficient
advance notice and an adequate
-7-
opportunity to demonstrate why summary judgment should
not be granted'') (internal quotation omitted).
On appeal, the Tenbarges assert that had they known
the district court would rely on Dr. Nathan's deposition
they would have been able to demonstrate, as they
attempted to do in their post-judgment motion, the
existence of disputed issues concerning the alleged
contributory causative factors. For example, as to the
rheumatoid arthritis, the Tenbarges point out that Dr.
Nathan conceded that the rheumatoid arthritis was first
diagnosed in September 1993, almost two years after
Tenbarge began experiencing CTS symptoms; that the
diagnosis did not refer to his wrists; and that there was
no evidence of active rheumatoid arthritis in Tenbarge's
wrists or hands during the doctor's 1996 examination.
J.A. at 818-19. The Tenbarges also note that Dr. Chusak
testified that he saw no evidence of rheumatoid arthritis
at the time of his examination. J.A. at 224. As to
Tenbarge's alleged weight problem, the Tenbarges note
that there was no record support for Dr. Nathan's belief
that Tenbarge weighed 220 pounds, and that September 1991
medical records show that at six feet tall and 190 pounds
he was not overweight. J.A. at 666. As to alcohol
consumption, the Tenbarges point out that Dr. Nathan
stated he did not know how much consumption would
contribute to CTS, believed that "one drink a day keeps
the doctor away," and had no evidence that Tenbarge drank
more than one to two beers a day. J.A. at 821. Viewing
the Tenbarges' evidence and all reasonable inferences
therefrom in the light most favorable to them, we agree
with them that there are disputed issues of fact as to
-8-
alleged contributory causative factors.2
2
The district court also believed that there were disputed issues of fact as to
whether Tenbarge's work-related activities contributed to his CTS. In arriving at this
conclusion, the court did not view the evidence in the light most favorable to the
Tenbarges, as it was required to do. Even Dr. Nathan stated that "as far as
[Tenbarge's] work was concerned . . . none of it presented . . . a risk factor in terms of
[CTS]." J.A. at 823.
-9-
The Tenbarges go on to argue that, even if there were
no disputed issues of fact as to alleged contributory
factors, the district court still would have erred in
granting summary judgment. They contend that the
district court misapplied Missouri law by placing the
burden on them to disprove other possible causes for CTS.
Again, we agree. Although in some jurisdictions a
plaintiff may be required to present evidence to
"eliminate other causes that may fairly arise from the
evidence[,]'' Kaplon v. Howmedica, Inc., 83 F.3d 263, 267
(8th Cir. 1996) (applying Arkansas law) (internal
quotation omitted), the Missouri Supreme Court has held
that in order to make a submissible case on causation, a
plaintiff is not required "to exclude every causative
factor, save that for which the defendant is liable."
Kircher v. Purina Mills, Inc., 775 S.W.2d 115, 117 (Mo.
1989) (en banc). Nor is a plaintiff required to "prove
an absolutely positive causal connection." Id. Instead,
a submissible case on " 'causation is made where the
evidence is susceptible to a reasonable inference that
injuries' to plaintiff resulted from defendant's
product." Ray v. Upjohn Co., 851 S.W.2d 646, 654 (Mo.
Ct. App. 1993) (quoting Kircher, 775 S.W.2d at 117). In
Kircher, the court explained that "[s]uch evidence
establishes that the injury or damage is not merely the
result of several equally probable causes." 775 S.W.2d
at 117.
Based on our review of Missouri cases, we conclude
that Dr. Chusak's opinion that Tenbarge's use of the
Bazooka caused his CTS is sufficient evidence of
-10-
causation.3
3
We note that in discussing causation both the Tenbarges and the district court
use the term "substantial factor." In Callahan v. Cardinal Glennon Hosp., 863 S.W.2d
852, 861 (Mo. 1993) (en banc), the Missouri Supreme Court noted some confusion
between the "substantial factor" causation test and the "but for" causation test. The
court observed that many cases, "although called substantial factor cases, are required
to meet a 'but for' causation test." Id. The court explained that " '[b]ut for' is an
absolute minimum for causation because it is merely causation in fact." Id. at 862. The
court then clarified that the " 'but for' test for causation is applicable in all cases except
those involving two independent torts, either of which is sufficient in and of itself to
cause the injury." Id at 862-63. In this case, it appears that the Tenbarges are relying
on "but for" causation, that is, "but for" the use of the Bazooka Tenbarge would not
have developed CTS. See Gage v. Morse, 933 S.W.2d at 416-417 ("but for" doctor's
negligence plaintiff was harmed despite intervening infection); Ray, 851 S.W.2d at 652
(chemical caused plaintiff's asthma even though other risk factors may have been
present).
-11-
In fact, this case is similar to Ray. In that case, a
jury awarded plaintiff $1.5 million for respiratory
problems caused by his inhalation at work of fumes from
a chemical manufactured by the defendant. On appeal, the
defendant argued that the plaintiff failed to make a
submissible causation case, noting testimony that
plaintiff's problems "could have been caused by other
chemicals, dust, or his smoking of cigarettes," and that
plaintiff had not proved that he had only been exposed to
defendant's chemical. Ray, 851 S.W.2d at 654. Citing
Kircher, the court rejected defendant's argument, noting
that at least two doctors had testified that the
plaintiff's problems were caused by inhalation of
defendant's fumes. Id. at 653. See also Gage v. Morse,
933 S.W.2d 410, 416-17 (Mo. Ct. App. 1996) (sufficient
evidence of causation based on physician's testimony that
initial treatment of plaintiff's knee caused harm despite
evidence of intervening infection); Nugent v. Owens-
Corning Fiberglas, Inc., 925 S.W.2d 925, 930 (Mo. Ct.
App. 1996) (sufficient evidence of causation based on
expert testimony that exposure to asbestos was cause or
contributing cause of disease); Kircher, 775 S.W.2d at
117 (sufficient evidence of causation based on testimony
of veterinarian that contaminated feed caused sickness).
As an alternative basis for affirmance, Ames renews
its argument that the testimony of the Tenbarges' design
and ergonomics experts was insufficient under Daubert.
We decline to address the Daubert issue in the first
instance. "The Supreme Court in Daubert makes it plain
that the trial court is to act as a gatekeeper in
screening [expert] testimony for relevance and
reliability, that is, make an assessment whether the
reasoning and methodology underlying the testimony is
-12-
scientifically valid." Peitzmeier v. Hennessy Indus.,
Inc., 97 F.3d 293, 296-97 (8th Cir. 1996), cert. denied,
117 S. Ct.
-13-
1552 (1997).4 In fact, Ames acknowledges that after
filing its summary judgment motion, it filed a motion in
limine to exclude the expert evidence and requested a
Daubert hearing, which the district court denied as moot.
We also decline to address in the first instance Ames'
other arguments raised on appeal as grounds for an
affirmance.
Accordingly, we reverse and remand for further
proceedings not inconsistent with this opinion.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
4
We note that the Ninth Circuit has recently held that Daubert is inapplicable to
a mechanical engineer's testimony in a products liability case. McKendall v. Crown
Control Corp., 1997 WL 448265 (9th Cir. Aug. 8, 1997) (No. 95-56657). However,
in Peitzmeier, this court held that Daubert is applicable to an engineer's testimony. 97
F.3d at 297.
-14-