Jacqueline Sue Uhler v. The Graham Group, Inc.

IN THE SUPREME COURT OF IOWA
No. 21–0723
Submitted December 14, 2022—Filed June 23, 2023
JACQUELINE SUE UHLER,
Appellant,
vs.
THE GRAHAM GROUP, INC.,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Samantha Grone-
wald, Judge.
A plaintiff alleging a permanent lung injury from exposure to chemical va-
pors in a building seeks further review of the court of appeals decision affirming
the district court’s grant of summary judgment in favor of the building’s owner.
DECISION OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT AF-
FIRMED.
McDermott, J., delivered the opinion of the court, in which Christensen,
C.J., and Waterman and Mansfield, JJ., joined. McDonald, J., filed a dissenting
opinion, in which Oxley, J. joined. May, J., took no part in the consideration or
decision of this case.
Jason D. Walke (argued) of Walke Law, LLC, West Des Moines, and Troy
A. Skinner of Skinner & Paschke, PLLC, West Des Moines, for appellant.
2
James S. Blackburn (argued) of Finley Law Firm, P.C., Des Moines, for
appellee.
3
McDERMOTT, Justice.
Jacqueline Uhler alleges that she suffered a permanent lung injury from
toxic vapors that spread throughout the multistory building where she worked
after a maintenance worker poured a chemical drain cleaner down a sink. The
district court dismissed her claim, determining that she failed to offer evidence
to establish the element of causation. In this appeal, we must decide whether
Uhler presented evidence to create a dispute of material fact about whether her
exposure to the chemical’s vapors caused her permanent lung injury.
I. Facts and Procedural Background.
A maintenance worker at a medical office building, responding to a call
about a clogged restroom sink on a lower level, used a chemical drain cleaner
called Draynamite to clear the clog. Although he didn’t measure out the chemical
as he was using it—instead pouring directly from the bottle into the sink—he
estimates that he used “about a cup.” The building’s maintenance crew had used
Draynamite to clear clogged sinks in the building in the past with no problems.
When he returned to the restroom about ten minutes later, the clog had cleared.
The maintenance manager’s phone soon rang with complaints from two
different people in offices on the building’s third and fourth levels about a rotten-
egg smell. The maintenance worker and his manager quickly began opening
stairwell doors throughout the building, setting up fans, and redirecting airflow
using the building’s computerized ventilation system. It reportedly took ten to
thirty minutes to air out the building (although some occupants reported that
they could still detect an odor the next day).
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A number of the building’s workers felt sick and went home for the rest of
the afternoon, and a pediatric clinic on the building’s third level closed early. The
next day, eleven workers filed incident reports about the odor. The complaints
ranged from nausea, headaches, and dizziness to chest tightness, burning sen-
sation, severe cough, and shortness of breath.
Uhler was among those who experienced adverse symptoms that after-
noon. As soon as she experienced those symptoms, she asked permission to
leave and went home. She worked in a cubicle in a records area on the building’s
fourth level—four floors above the restroom sink treated with Draynamite. Like
the others, she described a chemical, rotten-egg smell. In her incident report the
next day, she reported a headache, nausea, and difficulty breathing. A coworker
seated about five cubicles away said that the odor was stronger around Uhler’s
cubicle.
Two days after the incident, Uhler sought medical treatment for breathing
trouble. Uhler was 78 years old at the time of the incident and had been previ-
ously diagnosed with asthma. A pulmonologist to whom Uhler had been sent,
Dr. Gregory Hicklin, diagnosed Uhler with a permanent lung injury and pre-
scribed medication, including medicated inhalers. Uhler reports that her asthma
and general pulmonary function worsened after the incident. Although her con-
dition has stabilized to some extent, Uhler has continued to report shortness of
breath and difficulty doing many activities she once enjoyed.
Uhler sued the building’s owner and manager, Graham Group, Inc., for
negligence. Characterizing her cause of action as a premises liability claim, Uhler
5
alleges that Graham Group failed to maintain the premises and ventilate the
building adequately, warn tenants of the danger in a timely and safe fashion,
and minimize and contain the chemical exposure. She asserts that her inhala-
tion of the fumes in the building aggravated her preexisting asthmatic condition
and caused permanently reduced pulmonary function.
After discovery in the case, Graham Group moved for summary judgment,
arguing that Uhler had failed to present sufficient evidence that the chemical
fumes caused the permanent lung injury that she alleges. The district court
granted the motion and dismissed Uhler’s claim. Uhler appealed. We transferred
the case to the court of appeals, which affirmed the district court judgment over
a dissent. Uhler sought further review, which we granted.
II. Uhler’s Evidence of Causation.
Uhler characterizes her negligence cause of action as a premises liability
claim, not a toxic tort. She thus doesn’t discuss the two types of causation—
general and specific—that we require plaintiffs to show to prove factual causation
in toxic tort cases. See Ranes v. Adams Lab’ys, Inc., 778 N.W.2d 677, 687–88
(Iowa 2010). Toxic torts generally “involve plaintiffs who have been exposed to
allegedly toxic substances, such as chemicals, asbestos fibers, or a pharmaceu-
tical product, and allege that this exposure has caused their cancer, birth defect,
or other injury.” David E. Bernstein, Getting to Causation in Toxic Tort Cases, 74
Brook. L. Rev. 51, 51 n.1 (2008) [hereinafter Bernstein]. Uhler’s cause of action,
6
as pleaded, alleges that she was exposed to toxic fumes from the use of a chem-
ical drain cleaner and that the exposure caused permanent lung damage. That’s
a toxic tort claim, so we will apply our bifurcated causation analysis.
General causation is a showing that the substance in question was capa-
ble of causing the injury alleged. Ranes, 778 N.W.2d at 688; Bernstein, 74 Brook.
L. Rev. at 52–53. Specific causation is a showing that the exposure to the sub-
stance in fact caused the plaintiff’s injury. Ranes, 778 N.W.2d at 688; Bernstein,
74 Brook. L. Rev. at 52–53. We’ve described general causation as a process of
“ruling in” possible causes for the injury, and specific causation as a process of
“ruling out” those possible causes through a process of elimination. Ranes, 778
N.W.2d at 695.
Uhler argues that the manufacturer’s own safety data sheet establishes
that inhaling Draynamite vapors is capable of causing serious damage to the
lungs and, thus, a jury question on causation prevents summary judgment. The
safety data sheet for Draynamite includes this statement:
Risk of serious damage to the lungs (by inhalation). Causes burns
to the respiratory tract, nose, mouth, and throat with discomfort,
nasal discharge, sneezing, coughing, rapid heartbeat, and chest
pain. Inhalation of mist or vapors may cause chemical pneumonia
which can cause damage and may be fatal.
But disclosures required on a chemical safety data sheet are a step removed from
establishing causation. A manufacturer’s duty to provide basic information
about hazards on safety data sheets is imposed by federal regulation. See 29
C.F.R. § 1910.1200(b)(1), (g) (2012). “Regulatory standards are set for purposes
far different than determining the preponderance of evidence in a toxic tort case.”
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Bernard D. Goldstein & Mary Sue Henifin, Fed. Judicial Center, Reference Guide
on Toxicology, in Reference Manual on Scientific Evidence 633, 665 (3d ed. 2011)
[hereinafter Reference Manual on Scientific Evidence]. A safety data sheet alone
isn’t sufficient to establish causation in a toxic tort case because the sheets
aren’t evidence of what a toxic level of exposure might be, whether a particular
person was exposed to a toxic dosage, or whether the person’s exposure actually
caused her injuries. See Gass v. Marriott Hotel Servs., Inc., 501 F. Supp. 2d 1011,
1025 (W.D. Mich. 2007), rev’d and remanded on other grounds, 558 F.3d 419(6th Cir. 2009).
The safety data sheet proves that Draynamite is a toxin capable of causing
injury by inhaling its vapors, but it doesn’t prove that the vapors actually drifted
through the building to reach Uhler in a concentration sufficient to cause the
permanent lung injury that she alleges. To show that her exposure to Drayna-
mite vapors caused her injury, Uhler needed to present evidence of the level of
her exposure to the toxin and that that level could cause the injury she alleges.
The main issue surrounds “whether there has been exposure to a sufficient dose
to be a likely cause of this effect.” Reference Manual on Scientific Evidence at 638.
Concentration levels of toxins are influenced by a number of variables, including
dilution. A simple example illustrates the point: A drop of undiluted acid on your
skin might cause a horrible burn, while the same drop in a bathtub might reduce
the concentration such that you experience no effect. Id. at 641 n.25.
Uhler has presented evidence that the fumes traveled through four floors
of the building in some concentration, and that the fumes were associated with
8
brief symptoms in at least eleven people in the building. But this evidence of a
temporal connection between exposure to fumes and temporary symptoms, with-
out more, doesn’t permit the leap that the exposure involved toxins of a quantity
capable of causing the permanently reduced pulmonary function. See Cavallo v.
Star Enter., 892 F. Supp. 756, 769–75 (E.D. Va. 1995) (granting summary judg-
ment where expert testimony was based primarily on a temporal connection be-
tween exposure to jet fuel and the plaintiff’s onset of chronic respiratory illness)
aff’d in part and rev’d and remanded in part on other grounds, 100 F.3d 1150(4th Cir. 1996).
What’s more, the temporary symptoms that some in the building experi-
enced aren’t what Uhler alleges in this case; her claim seeks damages for a per-
manent injury. Yet she presents no evidence that the exposure to fumes caused
anyone else to suffer anything other than discomfort that subsided after leaving
the building. This evidence of causation—that the concentration of toxin ema-
nating in her workspace from the release of Draynamite was capable of causing
her permanent lung injury—requires expert testimony. Uhler didn’t offer it.
Uhler designated three physicians (two of them her treating physicians) as
experts: Dr. Gregory Hicklin, Dr. Daniel Dodge, and Dr. Jacqueline Stoken. But
Dr. Hicklin, a pulmonologist, is the only expert she designated to offer an opinion
about causation. Dr. Hicklin initially treated Uhler after the incident. Regretta-
bly, Dr. Hicklin died in the time between the incident and Uhler’s filing of her
lawsuit; he never prepared an expert report for this case. Uhler provided some of
Dr. Hicklin’s treatment records with her summary judgment materials. But as
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the district court found, Dr. Hicklin’s records are silent about the concentration
and toxicity of Draynamite fumes that could have reached Uhler, and whether
that concentration was capable of causing the permanent injury she alleges.
Uhler’s other experts, both osteopathic medicine physicians, fare no better
on this issue. Dr. Stoken specializes in rehabilitation medicine. Her expert affi-
davit says that she has treated patients with pulmonary injuries from inhaling
fumes from toxic chemicals. But she offers no opinion about the dosage of toxin
that could have reached Uhler and whether that dosage was capable of causing
Uhler’s permanent injury. Dr. Dodge specializes in pulmonology, which focuses
on ailments of the respiratory system. He took over Uhler’s pulmonary treatment
for Dr. Hicklin. Like Dr. Stoken, Dr. Dodge offers no opinion about the dosage of
toxin that could have circulated four floors up to Uhler’s workspace or whether
that dosage was capable of causing Uhler’s permanent injury.
To prove general causation in this case, Uhler needed a toxicology expert.
Toxicology, as a scientific endeavor, “attempts to determine at what doses foreign
agents produce their effects.” Reference Manual on Scientific Evidence at 637.
Toxicology’s oldest maxim is that “the dose makes the poison.” Bernard D. Gold-
stein, Toxic Torts: The Devil Is in the Dose, 16 J.L. & Pol’y 551, 551, 554–55
(2008). Unlike a toxicologist, “most physicians have little training in chemical
toxicology and lack an understanding of exposure assessment and dose–re-
sponse relationships.” Reference Manual on Scientific Evidence at 676. Uhler of-
fered no expert opinion from a toxicologist. Dr. Stoken’s expert affidavit, which
10
Uhler seems to rely on most for the causation issue, essentially offers that expo-
sure to Draynamite, followed by Uhler’s permanent injury diagnosis, establishes
causation. But this conclusion assumes that the exposure was capable of caus-
ing the injury. This step in the analytical process—evidence of general causa-
tion—is skipped. Evidence that a plaintiff’s symptoms are “consistent with” ex-
posure to a particular chemical doesn’t satisfy the plaintiff’s burden of proof as
to causation. See Turpin v. Merrell Dow Pharms., Inc., 959 F.2d 1349, 1359–61
(6th Cir. 1992) (holding that proof that a drug is “ ‘capable of causing,’ ‘could
cause’ or that its effects are ‘consistent with causing’ birth defects” was evidence
of a possibility rather than a probability and thus insufficient to support a find-
ing of causation); see also Bland v. Verizon Wireless, (VAW) L.L.C., 538 F.3d 893,
897, 899 (8th Cir. 2008) (affirming summary judgment where a treating physi-
cian didn’t know what amount of exposure to freon caused, or would have an
appreciable risk of causing, asthma).
At some point, a dose of sulfuric acid—the toxic agent that Uhler points to
in Draynamite as triggering her disease—becomes so low that it can’t produce a
particular effect. See Reference Manual on Scientific Evidence at 635–36, 669.
The complexity in understanding the dose–response relationship between Dray-
namite fumes and a person’s lungs places the causation question in this case
well beyond a layperson’s knowledge. A toxicologist measures exposure, for in-
stance, “by mathematical modeling, in which one uses a variety of physical fac-
tors to estimate the transport of the pollutant from the source to the receptor.”
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Id. at 666. That type of evidence of exposure is absent in this summary judgment
record.
Uhler cites Bloomquist v. Wapello County for the proposition that juries can
use “traditional cause and effect” testimony from physicians to resolve causation
questions and that epidemiological evidence is not “an absolute requirement in
establishing causation” in a toxic tort case. 500 N.W.2d 1, 3, 5 (Iowa 1993). These
propositions, while true, have limited application in this case. As the court of
appeals explained, the evidence of the plaintiffs’ exposure to the chemical pesti-
cide in Bloomquist involved evidence about the repeatedly monthly exposures
(from broadcast spraying inside work offices on desks, papers, carpets, and
seemingly all points between). See id. at 1. The evidence also included data from
on-site testing conducted to determine the amount of chemical residue still on
the carpets in the offices where the plaintiffs worked. Id. at 3. What’s more, and
as the court of appeals correctly observed, nothing in Bloomquist permits a read-
ing that expert epidemiological testimony is never required to establish exposure
levels in toxic tort cases, only that it isn’t “an absolute requirement.” Id. at 5(emphasis added).
We don’t require mathematical precision in equating levels of exposure
with levels of harm to prove causation. See Wright v. Willamette Indus., Inc., 91
F.3d 1105, 1107 (8th Cir. 1996). We recognize that “[t]oxicologists also have in-
direct means of approaching exposure through symptoms. For many agents,
there is a known threshold for smell and a reasonable range of levels that might
cause symptoms.” Reference Manual on Scientific Evidence at 657 n.66. But what
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is that threshold for Draynamite? Dr. Stoken’s affidavit states that inhalation of
sulfuric acid fumes “even in small amounts” could cause pulmonary injury, yet
we’re left to guess what that means, both as to the amount and the severity of
injury. Is a cup or two of Draynamite capable of producing enough vapor to cir-
culate through a large office building and reach four floors above while retaining
enough toxic potency to cause permanent pulmonary damage? None of Uhler’s
experts answer this question. Without some offer of evidence on this point, a jury
is left to speculate, and speculation won’t do. “Guesses, even if educated, are
insufficient to prove the level of exposure in a toxic tort case.” Mitchell v. Gencorp
Inc., 165 F.3d 778, 781 (10th Cir. 1999); see also Wright, 91 F.3d at 1106 (re-
versing the jury’s verdict in a toxic tort case for failing to offer evidence of “the
plaintiff’s actual level of exposure to the defendant’s toxic substance”).
Whether a plaintiff has proved causation is generally a jury question.
Thompson v. Kaczinski, 774 N.W.2d 829, 836 (Iowa 2009). But when a tort claim
requires an expert witness to prove causation, and no expert presents this evi-
dence, the claim is properly dismissed on summary judgment because “[s]pecu-
lation is not sufficient to generate a genuine issue of fact.” Hlubek v. Pelecky, 701
N.W.2d 93, 95–96 (Iowa 2005). Expert testimony is often critical in toxic tort
cases to prove causation. Ranes, 778 N.W.2d at 688. Indeed, in Ranes v. Adams
Laboratories, Inc., we determined that expert medical and toxicological testimony
was “unquestionably required to assist the jury” on general and specific causa-
tion. Id. A plaintiff’s “[f]ailure to reliably ‘rule in’ the defendant’s [toxin] as a cause
13
of the injuries in a particular case is commonly fatal to plaintiffs seeking to sur-
vive summary judgment in toxic tort cases.” Id. at 690.
And so it is in this case. “When the analytical gap between the evidence
presented and the inferences to be drawn is too wide, a jury should not be asked
to speculate on the issue of causation.” Gass, 501 F. Supp. 2d at 1026. Because
Uhler presented insufficient evidence about whether the dose of toxin to which
she was exposed was capable of causing the permanent injury alleged, she has
failed to establish a necessary element of her claim. We thus affirm the judgment
of the district court granting summary judgment in favor of Graham Group and
affirm the decision of the court of appeals.
DECISION OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT
AFFIRMED.
Christensen, C.J., and Waterman and Mansfield, JJ., join this opinion.
McDonald, J., files a dissenting opinion, in which Oxley, J., joins. May, J., takes
no part.
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#21–0723, Uhler v. The Graham Group, Inc.
McDONALD, Justice (dissenting).
“It is the duty of the jury to decide issues of fact.” Grismore v. Consol. Prods.
Co., 5 N.W.2d 646, 656 (Iowa 1942). Causation is an issue of fact and “ordinarily
a jury question.” Garr v. City of Ottumwa, 846 N.W.2d 865, 870 (Iowa 2014). It
is only in the “very exceptional cases where the facts are so clear and undisputed,
and the relation of cause and effect so apparent to every candid mind” that a
court should grant summary judgment on causation. Lindquist v. Des Moines
Union Ry., 30 N.W.2d 120, 123 (Iowa 1947) (quoting Fitter v. Iowa Tel. Co., 121
N.W. 48, 50 (Iowa 1909)). This is not one of the very exceptional cases where
summary judgment on the fact question of causation is appropriate. On the con-
trary, there is more evidence establishing causation in this summary judgment
record than disproving it. I thus respectfully dissent.
In affirming the grant of summary judgment and denying Uhler her right
to present her case to a jury, my colleagues misapply Ranes v. Adams Laborato-
ries, Inc., 778 N.W.2d 677 (Iowa 2010). In Ranes, we adopted and applied a “bi-
furcated toxic-tort-causation analysis” to claims arising out of the use of phe-
nylpropanolamine, an ingredient used for three decades in many cough and cold
products. Id. at 682, 687. Under this bifurcated analysis, we separated causation
into two parts: general causation and specific causation. Id. at 687–88. “General
causation is a showing that the drug or chemical is capable of causing the type
of harm from which the plaintiff suffers. Specific causation is evidence that the
drug or chemical in fact caused the harm from which the plaintiff suffers.” Id. at
15
688 (citation omitted). We explained that general causation and specific causa-
tion were merely “device[s] to organize a court’s analysis” and not “additional
elements of the tort.” Id. (quoting Restatement (Third) of Torts: Liab. for Physical
& Emotional Harm § 28 cmt. c, at 405 (Am. L. Inst. 2010) [hereinafter Restate-
ment (Third)]).
The bifurcated causation framework adopted and applied in Ranes is ap-
propriate and useful in certain categories of toxic tort cases. “Cases involving
toxic substances often pose difficult problems of proof of factual causation.” Re-
statement (Third) § 28 cmt. c, at 402. In certain types of toxic tort cases, like
Ranes, there are a host of unknown issues presented regarding exposure, la-
tency, etiology, environmental factors, preexisting conditions, and alternative po-
tential causes of disease, to name a few. The Restatement (Third) explains:
By contrast, the causes of some diseases, especially those with sig-
nificant latency periods, are generally much less well understood.
Even known causes for certain diseases may explain only a fraction
of the incidence of such diseases, with the remainder due to un-
known causes. Causal agents are often identified in group (epidemi-
ologic) studies that reveal an increase in disease incidence among a
group exposed to the agent as compared to a group not exposed.
Biological mechanisms for disease development—i.e., a series of
causally linked physiological changes from exposure to disease de-
velopment—are frequently complicated and difficult to observe.
Id.
The bifurcated framework is not appropriate or useful in all toxic tort
cases, however. In some cases the bifurcated causation analysis is inappropriate
and not useful because “the plaintiff can prove the causal role of the defendant’s
tortious conduct by observation, based upon reasonable inferences drawn from
everyday experience and a close temporal and spatial connection between that
16
conduct and the harm. Often no other potential causes of injury exist.” Id. In
other words, as the Restatement (Third) explains, “the evidence bearing on spe-
cific causation may be sufficient to pretermit the need to assess general causa-
tion.” Id. at 407.
To make the abstract more concrete: general causation and specific cau-
sation are at issue in every case. In an automobile collision case, there is a gen-
eral causation question—whether the cars collided with sufficient force to be ca-
pable of causing the type of harm the plaintiff suffered—and there is a specific
causation question—whether the collision in fact caused the harm the plaintiff
suffered. In automobile collision cases, however, courts do not apply the bifur-
cated general causation and specific causation framework. Courts do not require
plaintiffs to obtain a physicist to opine on the force of the automobile collision
and opine on whether the force was sufficient to cause the harm at issue. The
temporal relationship between the collision and the injury is sufficient to estab-
lish a nonspeculative inference of causation, both general and specific.
The same analysis applies in this case. While the majority tries to frame
this case as a complicated toxic tort case that requires extraordinary proof of
causation from an epidemiologist—like the toxic exposures at issue in the oft-
mentioned Bendectin, Agent Orange, and asbestos class-action cases—it is not.
This is a single-exposure case where injury occurred almost immediately after
exposure. It is more of a traumatic injury case akin to an automobile collision
case. This type of case is sometimes called an “isolated exposure” or “sporadic
accident” case. See Kuhn v. Sandoz Pharms. Corp., 14 P.3d 1170, 1184–85 (Kan.
17
2000). In this type of case, the bifurcated causation analysis is unnecessary to
organize the court’s analysis, and the testimony of a physician is generally suf-
ficient to establish a triable issue of fact on causation:
[D]ecisions such as those in the Bendectin and Agent Orange cases,
which have demanded confirming epidemiological proof in order to
make out a prima facie case, can be explained and better under-
stood, in comparison to decisions such as Ferebee, which did not
require such proof, by examining whether the exposures were, in
fact, mass exposures or, in contrast, were limited or isolated ones.
The courts should explicitly recognize that isolated exposure
cases are in reality more typical tort cases that can more com-
fortably be placed into the sporadic accident model of tort law.
. . . In isolated exposure cases, where only a single plaintiff or a few
persons have allegedly suffered harm from a toxic exposure, it is fair
and reasonable to allow the traditional sporadic accident model to
exert greater influence. A medical doctor is permitted to render an
opinion as to whether, to a reasonable degree of medical certainty,
exposure to Agent X caused the plaintiff’s physical disability. This
standard of causation will be referred to as the “testifying treating
physician” standard, and Ferebee is the paradigm case articulating
this standard. In rendering an opinion on causation under this
standard, the expert is not typically required to demonstrate the ex-
istence of supporting epidemiological data (or even much other tox-
icological proof) in order to justify admission of that opinion and to
reach a jury on that issue.
Gerald W. Boston, A Mass-Exposure Model of Toxic Causation: The Content of
Scientific Proof and the Regulatory Experience, 18 Colum. J. Env’t L. 181, 188–
89 (1993) (emphasis added) (footnote omitted).
With that understanding, when the summary judgment record is viewed
in the light most favorable to Uhler, the district court erred in granting the de-
fendant’s motion for summary judgment because there is a disputed issue of fact
regarding causation. First, consider the chemical at issue—Draynamite. The ma-
terial safety data sheet for Draynamite cautioned that “Acute Inhalation Toxicity
– Vapers” posed a “Category 2” risk. It also cautioned: “odor pungent acidic,”
18
“fatal if inhaled,” “obtain special instructions before use,” “wear respiratory pro-
tection,” “use in a well-ventilated area,” “IF INHALED: Remove person to fresh
air and keep at rest in a position comfortable for breathing,” “local ventilation is
suggested to control exposure from operations that can generate significant lev-
els of vapour, mist or fumes,” “risk of serious damage to lungs (by inhalation),”
“causes burns to the respiratory tract,” and “inhalation of mist or vapors may
cause chemical pneumonia.”
Next consider the close temporal and spatial relationship between the de-
fendant’s use of Draynamite in the building and the immediate and simultane-
ous onset of injury to Uhler and others. Sometime after noon, the defendant’s
maintenance workers received a complaint of a clogged sink on the basement
level of the building where Uhler worked. Brad Grismore responded to the com-
plaint. Grismore poured Draynamite down the drain to unclog the sink. Within
minutes of Grismore pouring Draynamite down the sink, Toby George, another
maintenance employee, received a call from a tenant who reported a strange odor
on the second floor. It smelled like rotten eggs. George contacted Grismore, who
said he was in the basement tending to the clogged sink. George joined Grismore
in the basement and could smell something. George “hurried back up to his office
one floor above, got on his computer and adjusted the settings on the building’s
air circulation system to vent out all circulating air in the system to the outside
of the building and to have all fresh outside air come into the system.”
Within minutes, people who worked in the building began to suffer various
injuries. Eleven people filed incident reports about what happened that day. Four
19
of the people worked on the third story, where Uhler worked. Seven of the people
worked on the second story. Not all of the incident reports are legible, but the
summary judgment record shows the following:
• One person “started smelling rotten eggs.” She experienced “flu
like symptoms.” She described her type of injury as “chest burn-
ing-indigestion-belching.”
• Another person “started smelling odor.” She said her “lungs” were
the “body part affected by the injury.” She said it was “hard to
breathe” and she was “coughing.” As for the type of injury, she
said, “breathing/severe cough last night and cough & chest tight-
ness today.”
• Another person started smelling “fumes.” She reported injuries
as “lungs, sinus, headache.” She described her type of injury as
shortness of breath, headache, and congestion.
• Another person complained of headache, dizziness, and nausea.
• Another said, “Started smelling sulfur/sewer smell. Continued to
get stronger. Started getting headache within 15-20 min. Nausea
and dizziness.” She described her type of injury as “headache,
nausea, dizziness, shortness of breath.”
• Another person described a “horrible smell in the clinic and we
had to close.” She stated she had a “headache” and was
“nau[seous], dizzy, today I feel dizzy. I can’t remember things.”
• Another reported fumes caused headache and stomachache.
• Another stated, “Fumes were circulating through the clinic air
system.” She stated this caused nausea and chest tightness. She
described her body part affected as “stomach, head, lungs” and
her type of injury as “headache, nausea, short of breath.”
• Another person described “fumes” and the injury as “headaches,
nausea, breathing.”
Uhler’s experience was similar to the ten other people who reported an injury
on the day in question. Uhler started having trouble breathing. She asked for,
20
and was granted, permission to leave as soon as she started experiencing symp-
toms. She saw Dr. Daphney Myrtil two days later for her symptoms. The doctor’s
report states Uhler’s chief complaint was “inhalation exposure to hydrogen sul-
fide” from “fumes in the building.” The report confirms “inhalation exposure
symptoms” and a history of asthma. The report further states that since the
incident, “she has been having symptoms of eye irritation, she has had a slight
headache, and she does feel like her nose is irritated as well.” Dr. Myrtil per-
formed a chest X-ray that showed “hyperinflation” in the lungs. Then, after an
“acute worsening of her asthma,” Uhler treated with pulmonologist Gregory Hick-
lin. Dr. Hicklin noted Uhler’s lung condition had been stable until her exposure
at work.
The close temporal and spatial relationship between Grismore’s use of the
Draynamite, the immediate onset of injury to Uhler, and the corroborating work
incident reports from at least ten other people in the building are more than
sufficient to “rule in” Draynamite as a cause of injury. See Cavallo v. Star Enter.,
892 F. Supp. 756, 774 (E.D. Va. 1995) (“[I]f a known chemical is accidentally
introduced into a company’s ventilation system, and all of the workers exposed
immediately develop the same adverse reaction, then the episode itself may be
sufficiently indicative of causation.”), aff’d in part, rev’d in part, 100 F.3d 1150(4th Cir. 1996).
Next, consider the fact that there is no other plausible explanation for what
happened sufficient to rule out Draynamite as a cause of injury. Grismore testi-
fied there was not “one specific plausible explanation for the complaints . . . other
21
than [his] use of the Draynamite product in the basement of the building that
day.” George testified that he could not “offer any explanation for the complaints
of the people who say they got sick . . . besides the use of chemicals in the base-
ment.” Jeff Hatfield, Graham Group’s senior vice president of medical properties,
also testified. Hatfield was George and Grismore’s boss. Hatfield stated he did
not “have a single plausible specific explanation for what happened that day that
does not involve the use of Draynamite in the basement.”
Not only has Graham Group failed to identify any alternative explanation
of harm—Graham Group has affirmatively admitted that the cause of harm to
the tenants’ employees was the Draynamite used in the building. A clinic admin-
istrator in the building at issue testified that she was told by Graham Group that
“the cause of all this was they had poured something down the drain.” Another
supervisor in the building was told by Graham Group “that there was a cup of
drain cleaner poured into a basement sink drain, and it resulted in fumes.” Hat-
field testified about the steps Graham Group took to investigate what happened
on the day in question. Based on Graham Group’s investigation, he testified that
the use of Draynamite “was part of what caused problems. We’re not sure what
it interacted with.”
Next, consider the medical opinions provided by Uhler’s experts in re-
sistance to the motion for summary judgment. Dr. Jacqueline Stoken stated she
was qualified to opine on lung injuries due to her education, training, and expe-
rience working in pulmonary care. In preparing her opinion, she relied on her
education, training, and experience; she examined Uhler; she reviewed Uhler’s
22
medical records; she reviewed Graham Group’s answers to interrogatories; she
reviewed the material safety data sheets for Draynamite; and she reviewed the
employee incident reports. She opined that Uhler has a preexisting medical con-
dition that made her more susceptible to injury from exposure to Draynamite.
She opined that Uhler’s injuries that day (and since) were caused by her expo-
sure to fumes generated by the use of Draynamite in the building. She also
opined that Uhler suffered a “long term permanent worsening of her asthma” as
a result of her exposure to Draynamite on the day in question; the “chemical
fume injury” caused “a material aggravation of [Uhler’s] underlying asthma and
permanent lung damage.” Pulmonologist Dr. Daniel Dodge opined that Uhler’s
exposure to Draynamite in the workplace caused a “significant and permanent
worsening of her pre-existing asthma.”
The majority’s response to all of this is that there is no evidence the
amount of Draynamite poured down the drain was generally capable of causing
Uhler’s harm, so she loses. This is vaporous. “We do not require a mathemati-
cally precise table equating levels of exposure with levels of harm” to prove cau-
sation. Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1107 (8th Cir. 1996). And
we do not demand evidence of the exact dose where, as here, the evidence may
very well be impossible to produce. Spaur v. Owens–Corning Fiberglas Corp., 510
N.W.2d 854, 861 (Iowa 1994) (holding “the jury could infer that [the defendant]
was a contributing cause of [the plaintiff’s] disease” because “it is not necessary
and indeed may be impossible to establish exactly how much” exposure plaintiff
experienced).
23
More important, the general causation evidence the majority now demands
is not needed because the close temporal and spatial relationship between the
defendant’s use of Draynamite and the onset of simultaneous injury to at least
eleven people within the building is sufficient to establish both general and spe-
cific causation. See Bonner v. ISP Techs., Inc., 259 F.3d 924, 931 (8th Cir. 2001)
(affirming jury award in toxic tort case where “the immediacy of [plaintiff’s] acute
symptoms to her exposure” was sufficient to establish causation); Kuhn, 14 P.3d
at 1184–85 (“A medical doctor will be permitted to render an opinion as to
whether the exposure caused the plaintiff’s injury” in “sporadic accident” expo-
sure case.); Bradford v. CITGO Petroleum Corp., 237 So. 3d 648, 666 (La. Ct. App.
2018) (affirming jury award where “the trial court was given significant circum-
stantial evidence that tied [plaintiffs’] exposures to the subject [chemical] spills”);
Christian v. Gray, 65 P.3d 591, 606 (Okla. 2003) (“The method for determining
the level of the toxin present in the environment may vary, and may include,
when appropriate, the observations of those non-experts present when the ex-
posure occurs.”). Cf. Heller v. Shaw Indus., Inc., 167 F.3d 146, 158 (3d Cir. 1999)
(explaining that if plaintiffs had experienced “prompt reaction” to toxin rather
than reporting reaction more than one year later, “this would be the type of tem-
poral relationship that might reliably support a” finding of causation).
The Kansas Court of Appeals issued a decision that correctly applies the
law and demonstrates the majority’s error. In Najera v. General Pest Control, LLC,
the plaintiffs sued a pest control company after being exposed to pesticides
sprayed in their workplace. 503 P.3d 1054, 1056, 1065 (Kan. Ct. App. 2021).
24
The district court granted judgment as a matter of law on the question of causa-
tion, and the appellate court reversed, holding there was a triable issue of fact
based on an expert’s “testimony regarding potential effects of exposure, the
MSDS [(material safety data sheet)] for the chemicals applied,” and a doctor’s
diagnosis of conditions consistent with the known side effects of the chemicals
at issue. Id. The court further explained that “the Plaintiffs’ symptoms developed
close in time to their exposure, which can be circumstantial evidence for estab-
lishing causation.” Id. at 1065. The court then explained at length why there was
sufficient evidence of causation and why the defendant was wrong in stating that
evidence of the dose was necessary:
The expert testimony here is not post hoc, ergo propter hoc rea-
soning. Dr. Henry’s and Dr. Goldstein’s testimony was not merely
based on pure speculation, nor the mere premise that because one
event occurred before another, the first must have caused the sec-
ond. The pesticides used are known, the exposure is known, the po-
tential effects of exposure are known, the Plaintiffs’ medical condi-
tions and diagnoses are known, and the physical exams and lab
work could support the medical diagnoses. . . . Here, there is no
speculation that Plaintiffs were in the same location during, right
after, and for prolonged periods after liquid chemicals were sprayed
onto surfaces and into the air of the Office Building. Their exposure
is not speculative; and to require them to list the weight or volume
of exposure would preclude the submission of causation to the jury
in almost every exposure case.
Defendants’ counsel argues that the Plaintiffs must prove the
exact amount of exposure. If plaintiffs claiming negligence were re-
quired to prove the exact amount of poison, salmonella, radiation,
or other toxin to which they were exposed, defendants could avoid
all liability simply through failure to keep accurate records. In the
case of a plaintiff working with toxins known to cause illness upon
inhalation, under Defendants’ argument that plaintiff would need to
prove the exact amount inhaled just to submit a case to the jury.
What about a toddler who drinks from a bottle of poison? Under
Defendants’ argument, the plaintiff would have to prove the exact
amount consumed before submitting the case to the jury. Let us
25
assume the toddler did not take a measurement and the plaintiff
forgot the amount in the bottle. In all such cases, a defendant could
avoid a trial and total liability by alleging the amount of toxin in-
gested, inhaled, touched, or otherwise introduced was not known
and thus causation could not be submitted to the jury. Such a result
defies logic. Defendants are free to provide evidence, which might be
compelling, contradicting Plaintiffs’ exposure allegations. But at
some point in the fact-finding, it must be left up to the jury to deter-
mine the sufficiency of the evidence.
Id. at 1066–67.
The majority pays little attention to the rationale underlying Ranes and
thus misapplies it here where the general and specific causation tests are un-
necessary and unhelpful. This court should be cautious to avoid adopting prin-
ciples “taken out of context, to formulate bright-line legal rules or conclude that
reasonable minds cannot differ about factual causation.” Restatement (Third)
§ 28 cmt. c, at 403. None of the concerns that motivated the creation of the bi-
furcated framework apply here. Graham Group concedes it had exclusive control
of the building. At least eleven people in the building, including Uhler, were in-
jured simultaneously and immediately after the defendant’s use of Draynamite.
None of the Graham Group’s employees responding to the clogged drain or in-
vestigating the incident have any plausible explanation of harm other than Dray-
namite. Graham Group admitted to tenants in the building that the cause of
harm was the use of Draynamite in the basement. Graham Group’s senior vice
president of medical properties has opined that at least part of the cause of harm
to tenants in the building was the use of Draynamite. Uhler’s experts opined that
Uhler’s exposure to Draynamite caused her injury and that Uhler was uniquely
vulnerable to Draynamite because of her preexisting medical conditions.
26
All of this is sufficient to rule in Draynamite as a cause of injury, while no
evidence rules Draynamite out. Indeed, the defendant admits Draynamite was a
cause of injury. “[W]hile epidemiological evidence is helpful, it should not be held
to be an absolute requirement in establishing causation.” Bloomquist v. Wapello
County, 500 N.W.2d 1, 5 (Iowa 1993). As one commentator predicted, “Ranes
illustrates the principle that bad toxic tort claims make hard toxic tort causation
rules that may later be applied to dismiss better but uncertain claims.” Steve C.
Gold, The “Reshapement” of the False Negative Asymmetry in Toxic Tort Causa-
tion, 37 Wm. Mitchell L. Rev. 1507, 1575 (2011). That is true here. I respectfully
dissent.
Oxley, J., joins this dissent.