Schelske v. Creative Nail Design, Inc.

NO. 96-153
IN THE SUPREME COURT OF THE STAT- OF MONTANA
E
1996
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MISCHELLE SCHELSKE and RICK SCHELSKE.
Plaintiffs and Appellants,
CREATIVE NAIL DESIGN, INC., a foreign corporation;
OPI PRODUCTS, INC., a foreign corporation; CLAIROL, INC.,
a foreign corporation, HELENE CURTIS, INC., a foreign
corporation; NEXXUS PRODUCTS COMPANY, a foreign corporation;
THE ADU COMPANY, a foreign corporation; REVLON PROFESSIONAL
PRODUCTS, INC., a foreign corporation; COSMETIC ARTS,
a foreign corporation; AMERICAN INTERNATIONAL, a foreign
corporation; SEBASTIAN INTERNATIONAL, a foreign corporation;
UNIT CHEMICAL CORPORATION, a foreign corporation; PAUL MITCHELL
(BOCCHI LABORATORIES); MATRIX ESSENTIALS, INC., a foreign
corporation; MALIBU 2000, a foreign corporation; HIGHLAND
CORPORATION, a foreign corporation; CAPITAL HILL MALL PARTNERSHIP,
a Utah limited partnership; JC PENNEY COMPANY, INC., a foreign
corporation; PALMER DUNCAN CONSTRUCTION COMPANY, a Montana
corporation; and DOES and ROES ONE THROUGH TEN,
Defendants and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John C. Doubek; Small, 3atch, Doub-k
& Pyfer; Helena, Montana
For Respondents:
Randy J. Cox; Boone, Rarlberg & Haddon;
Missoula, Montana
Susan P. Roy; Garlington, Lohn & Robinson;
Missoula, Montana
Ronald F. Waterman; Gough, Shanahan,
Johnson & Waterman; Helena, Montana
Submitted on Briefs: October 10 1996
2
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Decided: January 2 , '1997
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.
Mischelle and Rick Schelske appeal from the amended order
granting summary judgment in favor of the defendant manufacturers
as entered by the First Judicial District Court, Lewis and Clark
County. We affirm.
The issue on appeal is as follows:
Did the District Court properly grant summary judgment in
favor of the defendants?
A. Did the District Court correctly conclude that the
Schelskes failed to comply with the Case Management Order?
B. Did the District Court err in determining that the
Schelskes cannot exclusively rely upon Material Safety Data Sheets
to establish a prima facie claim of product liability?
C. Did the District Court err in not accepting the
Schelskes' legal assertion that once the plaintiffs produce
evidence of multiple product "indivisible injury" the causation
element of the claimants' burden of proof is satisfied and the
burden shifts to the manufacturer to prove that their product did
not cause injury?
FACTS
Mischelle Schelske worked as a beautician at the JC Penney
store in Helena from September 4, 1984, until October 1992, when
she left her management position at the salon. On May 11, 1994,
Mischelle and her husband Rick filed suit against fourteen cosmetic
manufacturing and marketing companies, two construction companies,
and the owner of the beauty salon space. The complaint alleges her
work exposed her to different substances which allegedly were toxic
and that, as a result, commencing in the summer of 1992, she began
to experience a variety of pains, swelling, and digestive
disorders. She states in her complaint that by December 1992, she
was totally unable to continue her work at the salon because of her
severe symptoms and debilitating injuries and that she has since
been unable to hold gainful employment and has sustained permanent
injuries. The Schelskes assert that each cosmetic manufacturer
designed, manufactured, and sold products which were defective and
that each product directly and proximately damaged them.
On September 28, 1994, the District Court conducted a
preliminary pretrial hearing. Pursuant to Rule 16, M.R.Civ.P., the
District Court issued a Case Management Order (CMO). The CMO,
dated October 11, 1994, was designed to help focus the extensive
discovery and to aid in the handling of the complex, multi-party
litigation. The Schelskes and the defendants agreed to the
issuance of this order. The CMO granted the Schelskes sixty days
to serve discovery requests on the defendants, but limited this to
obtaining information regarding the contents of the products used
by Mischelle, or those which she claims to have been exposed to in
the salon. All other discovery was stayed pending compliance with
the CMO.
The CMO then provided that within ninety days from the entry
of the order, the Schelskes were required to provide a list of
products, the circumstances of the alleged exposure, an
identification of each specific chemical which allegedly caused
harm, and a physician's opinion of a causal connection between
exposure and injury. The CMO required that the affidavit from the
physician stating his or her opinion must: (1) list all injuries,
illness, or conditions suffered by Mischelle; (2) specify the
chemical is) that caused each illness, injury or condition; and
( 3 ) state the scientific bases for the physician's opinion.
Specifically the court stated in its order that,
It will not be sufficient for the affidavit to state a
lllaundry list" of injuries and chemicals. Each injury,
illness or condition must be itemized and specifically
linked to the chemical or chemicals believed to have
caused that particular injury, condition or illness.
On January 9, 1995, the Schelskes filed the affidavit of Jack
Thrasher, a toxicologist from New Mexico. On January 30, 1995, the
cosmetic manufacturers moved to strike Thrasher's affidavit
alleging that it failed to comply with the CMO. On the same date
the Schelskes filed a notice of filing discovery requests to all
defendants. This discovery was not conducted within the sixty days
as provided in the CMO, thus the manufacturers resisted the
discovery and moved for a protective order.
A consolidated hearing for all pending motions was set for
May 25, 1995. On April 13, 1995, prior to the hearing but after
the ninety days provided for in the CMO, the Schelskes filed the
affidavit of Curt G. Kurtz, M.D., and then on April 28, 1995, they
also filed the affidavit of Gunnar Heuser, M.D. The defendants
moved to strike both affidavits, alleging that neither came close
to complying with the CMO. At the hearing, the District Court
determined that the affidavits did not meet the requirements of the
CMO because they did not list which chemicals produced which
symptoms and stated that if the court were to accept them it would
have the effect of reversing the burden of proof. The motions to
strike were taken under advisement and the motion for protective
order was granted as to the Schelskes' untimely discovery requests.
The court gave the Schelskes three additional months to comply with
the CMO.
On August 18, 1995, the Schelskes filed a second affidavit by
Dr. Heuser which included approximately 100 Material Safety Data
Sheets (MSDS). Manufacturers are required by federal law to obtain
or develop MSDS for each chemical they produce which potentially
can cause a health hazard in order to provide information to
employees about the hazards of the chemicals being produced. On
October 23, 1995, after consideration of Dr. Heuser's statement,
the court determined that it did not comply with the CMO as an
affidavit from a physician listing all of Mischelle's injuries,
illnesses, and conditions caused by the exposures, specifying the
chemicals which caused each injury, and medically substantiating
the physician's opinion as to these matters. The court concluded
that the Schelskes had not complied with the CMO within the
three-month extension period previously granted.
The cosmetic manufacturers therefore moved to strike Dr.
Heuser's affidavit and moved for summary judgment asserting that
the failure to comply with the CMO and the fundamental failure to
offer any proof of a defective product was fatal to the Schelskes'
case. A hearing was set for January 18, 1996. On January 16,
1996, the Schelskes filed a third affidavit by Dr. Heuser. In its
decision and order the court stated that upon reviewing all of Dr.
Heuser's affidavits it concluded that they did not satisfy the
requirements of the CMO and therefore granted the defendants'
motion to strike. The District Court also granted the defendants'
motion for summary judgment. The District Court stated that the
Schelskes had not even remotely complied with the provisions of the
Case Management Order and as a result there was a failure to allege
a prima facie products liability cause of action as set forth in
§ 27-1-719(2), MCA. The Schelskes appeal this decision and order.
ISSUE
Did the District Court properly grant summary judgment in
favor of the defendants?
We review appeals from summary judgment rulings de novo.
Motarie v. Northern Montana Joint Refuse Disposal Dist. (19951, 274
Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (19941, 264
Mont. 465, 470, 872 P.2d 782, 785. When reviewing a district
court's grant of summary judgment, we apply the same evaluation as
the district court based on Rule 56, M.R.Civ.P. Bruner v .
Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903.
Summary judgment is proper only when no genuine issue of material
fact exists and when the moving party is entitled to judgment as a
matter of law. Brown v. Demaree (1995), 272 Mont. 479, 901 P.2d
567. This Court looks to the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits to determine
the existence or nonexistence of a genuine issue of material fact.
Ulrigg v. Jones 11995), 274 Mont. 215, 907 P.2d 937
A. Did the District Court correctly conclude that the
Schelskes failed to comply with the Case Management Order?
The District Court's issuance of the CMO was wholly within its
discretion as a management tool contemplated by Rule 16, M.R.Civ.P.
This order was patterned after a case management order issued by
the United States District Court, District of Montana, in Eggar,
et al. v. Burlington Northern R.R. Co. (D. Mont. 1991), 1991 WL
315487, afd
f' Claar v. Burlington Northern R.R. Co. (9th Cir.
19941, 29 F.3d 499. The CMO in the present case required the
Schelskes to establish the prima facie elements of their products
liability claim. Failure to comply with the order would therefore
result in a failure to establish that any genuine issues of
material fact existed as to the products liability claim, making
the case proper for summary judgment. This Court will therefore
review the record de novo to determine whether any genuine issues
of material fact exist as to the elements of the Schelskes'
products liability claim as required by the CMO.
Sectlon 27-1-719(2), MCA, codified che product liability
common law in Montana. This section provides:
A person who sells a product in a defective
condition unreasonably dangerous to a user or consumer or
to the property of a user or consumer is liable for
physical harm caused by the product to the ultimate user
or consumer or to his property if:
(a) the seller is engaged in the business of
selling such a product; and
(b) the product is expected to and does reach the
user or consumer without substantial change in the
condition in which it is sold.
This Court has previously held that in a products liability action
the plaintiff must show: (1) the plaintiff was injured by the
product; (2) the injury occurred because the product was defective
and unreasonably dangerous; and (31 the defect existed when it left
the hands of the defendant. Brothers v. General Motors Corp.
(1983), 202 Mont. 477, 480, 658 P.2d 1108, 1109; Brown v , North
American Mfg. Co. (19771, 176 Mont. 98, 105, 576 P.2d 711, 716.
In sum, the Schelskes were required by the CMO to establish
the following facts in order to proceed with a prima facie claim of
products liability: (1) product identification; (2) use and
exposure; and (3) causation linking product defect to an
identifiable injury.
The first element required by the CMO was a statement
specifically identifying each product by manufacturer that
Mischelle claims to have caused her harm. The affidavits submitted
by the Schelskes listed numerous products that may have "potential
adverse health effects." However these affidavits, many of which
include over 150 pages of MSDS, do not sufficiently identify the
specific products Mischelle claims to have been exposed to in her
work at the salon.
The Thrasher affidavit filed on January 9 , 1995, includes a
list of 153 products under the heading of "Products With Potential
Human Adverse Health Effects." Although Thrasher's affidavit did
not state that all 153 products listed were actually claimed by
Mischelle to have caused her harm, this could possibly be inferred
from the affidavit. Thrasher states that he had been requested "by
Plaintiffs' counsel to address a number of products which plaintiff
Mischelle Schelske has indicated she has used or come into contact
with during the course of her working in the beauty salon."
Regardless of whether Thrasher's affidavit only addresses products
Mischelle allegedly claims to have come into contact with, many of
the products were listed in generic terms such as "shampoos" or
"bleach powders." Without specific product names, which would have
provided the defendants with the necessary information to allow
them to defend against the Schelskes' claim, the affidavit fails to
meet the requirements of the CMO.
Dr. Heuser's first affidavit does not provide any additional
information as to specific product names that Mischelle alleges to
have caused her harm. Heuser's second affidavit, filed August 18,
1995, states that he has considered the list of products which
Mischelle claims to have been exposed to; however, this list was
not provided. The third affidavit of Dr. Heuser, submitted two
days prior to the hearing on the motion for summary judgment, comes
closest to complying with the CMO, but again does not provide a
complete list of each product Mischelle alleges to have harmed her.
The affidavits submitted, therefore, do not substantially comply
with the CMO because of their fail~re to state each specific
product that Mischelle Schelske personally identified as having
caused her harm.
The second element required by the CMO to form the basis of a
prima facie products liability claim required Mischelle to
specifically describe the circumstances of the alleged exposure to
each of the products identified in the list required, including the
time period during which she alleged exposure and the activities
which resulted in the exposure. Mischelle worked at the JC Penney
salon for a period of eight years. The record is devoid of any
specific statement indicating the time period that each product was
used by Mischelle, or the period when she came into contact with
each product. In addition, the record only provides a general
statement by the Schelskes that Mischelle used "each and every
product on a daily basis," and that she used the products in a
manner consistent with the nature of the product. Over a period of
eight years, it is reasonable to assume that some products were
used for the entire period and others were used for only a limited
length of time. Some products may have been used several times
daily and others only on a weekly basis. It is also reasonable to
assume that some products were not even available at the salon for
the entire eight-year period of alleged exposure. In fact, the
Schelskes admit that " [tlhere may well have been some products
which came on the market during the time Mischelle Schelske was
employed but for the most part these products were in use the
entire time she was employed." The Schelskes clearly did not
comply with the CMO by providing a statement specifically
describing the circumstances of the exposure to each of the
products identified as having caused harm and the time period
during which each of these products were used.
The third and decisive element which the Schelskes failed to
meet, as required by the CMO, is a physician's affidavit
identifying specific injuries, specific chemicals which caused the
injuries, and the scientific or medical basis for a causal
connection between chemical exposure and injury. The Thrasher
affidavit does not satisfy the initial threshold requirement, as
Thrasher is not a physician. The affidavit of Dr. Kurtz only
states Kurtz's acceptance of the statements made by Thrasher in his
affidavit. It then proceeds to "laundry list" symptoms which
Mischelle suffers, and states that she suffers from reactive airway
disease and other conditions which have not yet surfaced or been
diagnosed. This affidavit is clearly insufficient. The lengthy
affidavits submitted by Dr. Heuser, however, require closer
scrutiny.
Heuser's first affidavit does not enumerate any specific
injuries or illnesses, or state any specific chemicals alleged to
have caused Mischelle harm. Heuser's second affidavit also fails
to meet the requirements of the CMO. In this affidavit, Dr. Heuser
states that chemicals in the defendants' products are "associated
withn certain listed diseases. Dr. Heuser contends that:
Chemicals in defendants' products associated with lung
disease, including irritation of mucous membranes,
storage disease, asthma, reactive airway dysfunction
syndrome, sensitization, atelectasis, bronchiectasis,
interstitial pulmonary fibrosis and lung cancer.
Mischelle Schelske has exhibited symptoms compatible and
susqestive of all the foregoing, with the exception that
lung cancer has not yet been diagnosed. The list of
diseases and injuries below are a part of what Ms.
Schelske suffers from in my medical opinion.
(Emphasis added. Dr. Heuser's statement only asserts an
association between the chemicals in the defendants' products and
the diseases of which Mischelle has exhibited symptoms. He does
not claim that Mischelle actually suffers from those diseases or
injuries, but rather that she has exhibited symptoms which are
compatible and suggestive of those problems. The list that Dr.
Heuser provides is a compilation of the data from the MSDS and is
merely a collection of potential consequences from contact with the
chemicals in the products and does not describe the particular
injuries suffered by Mischelle. Furthermore, Dr. Heuser clearly
asserts that the list of diseases and injuries provided is not an
exhaustive list and is only a part of what Mischelle suffers from.
The CMO specifically required that the physician's affidavit list
"all" injuries, illnesses, or conditions suffered by Mischelle.
The affidavit is also deficient in that it does not identify each
chemical that caused each injury but lists generic terms such as
"hair sprays" and "solvents."
The third affidavit filed two days prior to the hearing on the
motion for summary judgment speaks to some of the deficiencies of
his second affidavit as noted by the court. Dr. Heuser complains
in his affidavit, as did counsel for the Schelskes in a previous
affidavit, that he is unable to identify certain undisclosed
chemicals in some of the products such as "hair sprays." Although
the Schelskes were limited in their discovery at this time due to
concerns regarding trade secrets, they still failed to identify the
known disclosed chemicals and connect them to particular injuries
or illnesses. In his third affidavit, Heuser again states that the
products are "associatedNwith certain diseases and that Mischelle
exhibits symptoms "compatible with" certain illnesses. These
affidavits clearly do not comply with the CMO. The allegations
made within the affidavits are vague and conclusory without
providing the specific causation linking the product defect to an
identifiable injury. This Court has consistently held that
speculative and conclusory statements are not a sufficient basis on
which to raise a genuine issue of material fact. Ulriqq, 907 P.2d
at 941; Miller v. Herbert (1995), 272 Mont. 132, 137-38, 900 P.2d
273, 276.
The requirements of the CMO were explicitly detailed to the
Schelskes in both the written order and orally during the pretrial
proceedings. The Schelskes did not serve their discovery within
the sixty days provided by the CMO. They did not provide the
information required by the CMO wichin ninety days from entry of
the order. On May 25, 1995, the c m r t determined that the CMO had
not been complied with and specifically informed the Schelskes
again what was necessary for compliance. The court granted the
Schelskes an additional three months from May 25, 1995, to comply
with the order. On January 16, 1996, the Schelskes made a last
attempt to comply with the order, which was well beyond the
additional three months granted by the District Court, and
additionally, did not fulfill the requirements of the CMG. We
therefore determine that the District Court was correct in
concluding that the Schelskes did not comply with the Case
Management Order.
B. Did the District Court err in determining that the
Schelskes cannot exclusively rely Gpon Material Safety Data Sheets
to establish a prima facie claim of product liability?
The Schelskes largely premise their assertion that they
established a prima facie claim of products liability on the
Material Safety Data Sheets submitted with the affidavits. They
argue that the existence of these MSDS demonstrate that the
manufacturers' products are toxic or hazardous. The Schelskes, in
fact, seemingly urge this court to adopt a standard imposing
absolute liability on any manufacturer who complies with federal
law by publishing MSDS.
The publication of MSDS is pursuant to federal law and is
intended to provide information to employees about the hazards of
the chemicals being produced. a 29 C.F.R. § 1910.1200. The
chemical manufacturers must obtain or develop MSDS for each
hazardous chemical they produce or import. A hazardous chemical is
defined as one which can produce a physical hazard or health
hazard. 29 C.F.R. 5 1910.1200. The description of the potential
toxicity of the chemical in the MSDS is based on a pure, undiluted
sample of the chemical and not on the product itself.
The MSDS therefore provide no direct information regarding the
possible toxicity of the products themselves and, furthermore, the
MSDS do not establish that any particular product is in a defective
condition and is unreasonably dangerous. Thortoii v. E.I.
Du Pont De Nemours and Co., Inc. (11th Cir. 19941, 22 F.3d 284,
288-89. In addition, the MSDS provided with the affidavits do not
link a particular product with the chemical as one ingredient, to
a specific injury, illness, or condition that Mischelle suffers
from. This Court declines to adopt a standard imposing absolute
liability on manufacturers solely on the basis that they have
placed products into the stream of commerce for which MSDS have
been provided pursuant to federal law. We conclude therefore that
the District Court did not err in determining that the Schelskes
cannot exclusively rely upon the Material Safety Data Sheets to
establish their prima facie claim of product liability.
C. Did Lhe District Court err in not accepting the Schelskes
legal assertion that once the plaintiffs produce evidence of
multiple product "indivisible injury' the causation element of the
claimants' burden of proof is satisfied and the burden shifts to
the manufacturer to prove that their product did not cause injury?
The Schelskes assert that the principles of joint and several
liability provide the means of achieving fairness where there are
multiple defendants and multiple products which contain a variety
of toxic or hazardous chemicals which combine to cause injury.
They argue that it is not the responsibility of the injured party
to allocate the harm among various tort feasors.
The authority provided by the Schelskes for this assertion is
1 52, Prosser on Torts, and § 433A, Restatement (Second) of Torts
(1986). Neither of these sections absolves an injured party of the
burden of first establishing causation. These sections provide
only that once a defendant's conduct has been determined to be a
cause of some damage suffered by the plaintiff then issues of
apportionment can arise. The proof of causation is a necessary
predicate to a claimant's burden of proof in a product liability
action. § 27-1-719, MCA. We have determined the record in
this case does not provide evidence that any specific substance
caused specific harm to Mischelle Schelske, and therefore we need
not address the issue of apportionment as it relates to damages and
not causation.
We affirm the District Court's amended order granting summary
judgment in favor of the defendants.
Justice
We concur:
Justices
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion.
Assuming for the purpose of this case only (because the
plaintiffs have not argued otherwise), that the District Court had
the authority to require that plaintiffs prove their case prior to
trial, without any shifting of the burden pursuant to normal
summary judgment procedures, I conclude that the plaintiffs'
affidavits, when read in combination with each other, were
sufficient to establish that products produced by the defendants
included toxic chemicals which contributed as causes to specific
injuries sustained by Mlschelle Schelske.
The Schelskes submitted affidavits from three different
professionals in response to the District Court's case management
order. The first was from Jack Thrasher, Ph.D., a toxicologist
from New Mexico; the second from Curt Kurtz, M.D., Mischelle's
attending physician; and the third from Gunnar Heuser, M.D., a
physician with extensive experience in the effect of toxic chemical
exposure.
Dr. Thrasher indicated that he reviewed the products
identified by Mischelle as those wlth which she had come into
contact during the course of her employment, and also reviewed the
Material Safety Sheets pertaining to each product. He listed those
products by name, manufacturer, and the chemicals included in each
product. He also listed products for which the chemical components
had not been adequately ldentified by the manufacturer and for
which further information was required. He ldentified typlcal
adverse effects from the types of chemicals which were included in
the list and stated that in his opinion, daily exposure to a
combination of these chemicals caused Mischelle's physical
ailments. He described her injuries as central and peripheral
neuropathy, the presence of auto-antibodies in her immune system,
and injuries to her organs, vascular system, and nervous system as
a result of the auto-antibodies' presence. In his letter attached
to his affidavit, he stated that:
In short, the exposure to multiple chemicals and her
symptom complex indicate that Ms. Schelske suffers from
multiple organ injuries. These type of injuries have
been collectivelytermed multiple chemical sensitivity by
various clinicians.
In conclusion, Ms. Schelske ' s current health
problems are permanent. It is my opinion, within a
reasonable degree of scientific and toxicologic
probability, that her chronic daily exposure to emissions
from various cosmetic products is directly related to her
chronic health problems.
Dr. Curt G. Kurtz stated, in his affidavit, that he is a
medical doctor practicing in Bozeman and had treated Mischelle
Schelske for the past year and was, therefore, familiar with her
medical condition. It was his opinion that Mischelle had suffered
injuries as a result of exposure to chemicals in the work place.
He stated that her injuries include reactive airway disease and
multiple organ injuries. He stated that she was also being
evaluated for cognitive deficits due to chemical exposure. He had
reviewed the affidavit of Dr. Jack Thrasher and stated overall
agreement with its contents. He stated that all of the chemicals
listed in the Thrasher affidavit are toxic to some extent and
likely caused or contributed to the various injuries sustained by
Mischelle.
In his affidavit dated August 17, 1995, Dr. Heuser stated that
during the previous month he and assorted other specialists had
seen and examined Mischelle, and that based upon those
examinations, and his consideration of the list of products to
which she indicated she had been exposed, along with the
information about those products included in the Material Safety
Data Sheets, he believed that certain of the chemicals included in
those products caused injuries to Mischelle. He then listed
specific chemicals and the specific disease suffered by Mischelle
which was associated with that chemical. He introduced the lists
by stating in his affidavit that:
A list of the mjurles sustained by Ms. Schelske,
though not by any means an exhaustive list, is presented
along with documentation from the medical literature
which confirms that the symptoms and injuries sustained
by Mischelle Schelske are in fact the result of repeated
exposure to the said chemicals within the identified
products .
He went on to state that:
Chemicals in defendants' products [are] associated
with lung disease, including irritation of mucus
membranes, storage disease, asthma, reactive airway
dysfunction syndrome, sensitization, atelectasis,
bronchiectasis, interstitial pulmonary fibrosis and lung
cancer. Mischelle Schelske has exhibited symptoms
compatible with and suggestive of all of the foregoing,
with the exception that lung cancer has not yet been
diagnosed. The list of diseases and injuries below are
part of what Ms. Schelske suffers from in mv medical
opinion.
(Emphasis added.)
In other words, the affidavit of Jack Thrasher, Ph.D.,
identified the chemical component of each of the products to which
Mischelle had been exposed. The af fidavit Gunnar Heuser, M.D.,
identified the injury that, in his opinion, Mischelle has sustained
as a result of exposure to each of the chemical components. Both
affidavits also stated that without further information from the
manufacturers, there were some products whose chemical components
were not known. However, it clearly is not correct, as the
District Court concluded, that Dr. Heuser's affidavit failed to
list Mischelle's injuries, and failed to identify chemicals which
contributed as a cause of those injuries.
I conclude that the Schelskes provided all of the information
that could reasonably have been provided or required at thie stage
of pretrial proceedings, and that that information was certainly
adequate to enable the defendants to proceed with discovery by
further depositions of the experts who had submitted affidavits.
If further identification of specific time periods during which
exposure occurred, or the nature of consequences from specific
chemicals was necessary in order to defend against this case, the
defendants had all of the information they needed with which to
begin discovery of those details.
I therefore conclude that if the District Court ever had
authority to require the plaintiffs to prove their case prior to
trial in as great a detail as was required by the District Court's
case management order, then that order was satisfied by the
information summarized above.
For these reasons, I dissent from the majority opinion. I
would reverse the District Court order granting summary judgment to
the defendants.
January 2, 1997
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
John C. Douhek
Small, Hatch, Douhek & Pyfer
P.O. Box 236
Helena. MT 59624-0236
John D. Stephenson
Jardine, Stephenson, Blewett & Weaver, P.C.
P.O. Box 2269
Great Falls. MT 59403
Susan P. Roy, Esq.
Garlington, Lohn, & Robinson
P.O. Box 7909
Missoula. MT 59807-7909
Ronald F. Waterman
Gough, Shanahan, Johnson & Waterman
P.O. Box 1715
Helena, MT 59624-1715
Randy . .
ICox
Boone, Karlberg & Haddon
P.O. Box 9199
Missoula, MT 59807-9199
John Poston
Harrison, Loendorf & Poston, P.C.
2225 11th Ave., Suite 21
Helena, MT 59601
Gene A. Picotte
Attorney at Law
$066Helena Ave.
Helena, MT 59601
Curtis G. Thompson
Thompson & Jacobsen, P.C.
P.O. Box 2799
Great Falls. MT 59403-2799
John 3. Soltys
Cozen and O'Connor
1201 3rd Ave., Ste. 5200
Seattle. WA 98101
Steve Reida
Landoe, Brown, Planalp & Braaksma, P.C.
P.O. Box One
Bozeman, MT 59771-0001
Peter F. Habein & Michael S. Lahr
Crowley, Haughey, Hanson, Toole & Dietrich
P.O. Box 797
Helena, MT 59624
John Maynard
Browning, Kaleczyc, Berry & Hoven, P.C
P.O. Box 1697
Helena. MT 59624
Gary M. Zadick
Ugrin, Alexander, Zadick & Higgins, P.C.
P.O. Box 1746
Great Falls, MT 59403
Dennis P. Clarke
Smith Walsh, Clarke & Gregoire
P.O. Box 2227
Great Falls, MT 59403-2227
Mike Mulroney
Luxan & Murfitt
P.O. Box 1144
Helena, MT 59624
Brendon J. Rohan, Esq.
Poore, Roth & Robinson, P.C.
1341 Harrison Ave.
Butte, MT 59701
Steven T. Potts
Jardine, Stephenson, Blewen & Weaver, P.C.
P.O. Box 2269
Great Falls, MT 59403-2269
Steven S. Carey, Esq.
Carey, Meismer & McKeon
P.O.Box 8659
Missoula, MT 59807-8659
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA