Bingham v. Terminix International Co.

158 F.R.D. 97, 1994 U.S. Dist. LEXIS 14688, 1994 WL 563401
District Court, S.D. Mississippi·Decided May 27, 1994·No. Civ. A. No. 4:93-CV-44(L)(C)·Published·Cited by 2 cases

Opinion

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on the motion of defendants The Terminix International Company, L.P. (Terminix International) and Allied Bruce Terminix Company, Inc. (Allied Bruce Terminix) for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff William L. Bingham has responded to the motion. The court has considered the memoranda of authorities submitted by the parties, and concludes that the motion is well taken and should be granted.

The court previously entered a memorandum opinion and order in this cause on March 28,1994, granting in part and denying in part motions of defendants Miles, Inc. and FMC Corporation for summary judgment, 850 F.Supp. 516. The facts alleged by plaintiff are set forth in that opinion and will not [98]*98be repeated here, except to note plaintiffs allegations that as a result of his exposure to certain insecticides, Pryfon 6 and Permeth-rin, applied in his home by Allied Bruce Terminix Company, Inc., he suffered complications with asthma, and developed lung cancer. On the basis of these allegations, plaintiff has asserted causes of action against Terminix International and Allied Bruce Ter-minix for negligence, breach of an implied warranty of merchantability, failure to warn and strict liability.

On the present motion, these defendants seek summary judgment as to each of plaintiffs causes of action to the extent they are based on an allegation that the insecticides these defendants applied caused his lung cancer. They maintain, relying on the court’s earlier opinion of March 28, 1994, that plaintiff lacks proof that either Pryfon 6 or Per-methrin is a carcinogen. In that opinion, the court found that summary judgment was appropriate for Miles, Inc. and FMC Corporation, the manufacturers of Pryfon 6 and Per-methrin, respectively, as to plaintiffs claim that those defendants had “willfully and recklessly” distributed “cancer-causing products,” explaining as follows:

In his negligence count, plaintiff seeks to impose liability against defendants for “willfully and recklessly using a potential cancer-causing product, i.e., Pryfon and Permethrin.” Miles and FMC have moved for summary judgment as to this claim on the basis that their products are not “cancer-causing.” In support of [their] motions, defendants have submitted affidavits of toxicologists who state that the products at issue are not carcinogens.1 In response to defendants’ motion, plaintiff has submitted an affidavit of Dr. Arthur Hume, a toxicologist and professor in the Department of Pharmacology and Toxicology at the University of Mississippi Medical Center (UMC) and the Director of UMC’s Poison Control Service. Dr. Hume attests in his affidavit that he is familiar with the defendants’ products and that to his knowledge, neither Permethrin nor Pryfon “ha[s] been tested for carcinogenicity properties in humans nor [have they] been tested in the concentration used in treating Plaintiff’s home, nor [have they] been tested in the presence of other chemicals ... which [they] might enhance or be enhanced in carcinogenic activities.” Plaintiff argues that in light of Dr. Hume’s affidavit, there exists the “immeasurably significant” disputed factual issue of whether defendants’ products cause cancer. That, however, simply is not so. Indeed, Dr. Hume’s affidavit not only does not create an issue of fact on the issue, but appears to undercut plaintiffs cause of action. Dr. Hume does not opine that defendants’ products cause cancer; to the contrary, he states that there has never been any testing of these products to determine whether they may cause or contribute to cancer. In other words, according to Dr. Hume’s own affidavit, there is no proof that defendants’ products cause cancer.

In response to the motion presently before the court, plaintiff argues that in its earlier ruling, the court impermissibly shifted the burden of proof to the plaintiff to prove, at the summary judgment stage, the likelihood of these chemicals’ causing cancer in humans and that the court’s ruling was further in error as it eliminated part of plaintiffs claim “prematurely, [and] without the benefit of complete discovery.” The court rejects both contentions.2

[99]*99On the issue of the burden of proof, plaintiff insists that at the summary judgment stage, it did not, and does not have the burden to prove the likelihood that the chemicals manufactured and applied by the various defendants cause cancer. Presumably it is his position that because the issue was presented to the court in the context of a summary judgment motion, then it was the defendants’ burden to prove that the chemicals do not cause cancer. Plaintiff has apparently overlooked the language of Rule 56, and the Supreme Court’s holding in Celotex v. Catrett Corp., 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), wherein the Court explained what is required of a nonmovant to avoid the entry of summary judgment. The Court stated that a nonmovant, in order to withstand a properly supported motion for summary judgment, may not rest on the allegations of his pleadings, but must come forward with specific facts showing that there is a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553. Further, the court explained:

In our view, the plain language of Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact”, since a complete failure of proof concerning an essential element of a nonmoving party’s case necessarily renders all other facts immaterial.

Id. at 322, 106 S.Ct. at 2552 (emphasis added). Finally, the Court made it clear that a party not bearing the burden of proof at trial may discharge his summary judgment burden by showing the absence of an essential element of his opponent’s case, id. at 323,106 S.Ct. at 2552, such as causation.3 That is, the movant need not negate the nonmovant’s claim, but instead may discharge its burden by demonstrating the absence of evidence to support the nonmovant’s case.

In the present case, defendants FMC and Miles undertook to do both. They presented evidence that their products do not cause cancer, or that the likelihood that the products cause cancer is “nonexistent” or “extremely low,”4 and they pointed out that the plaintiff had no proof to the contrary. Based on defendants’ proof, and on the plaintiffs lack of proof, the court concluded, in accordance with Celotex, that summary judgment was proper. The court held plaintiff only to the burden prescribed by Celotex, and therefore, plaintiffs first contention is without merit.

Plaintiff next challenges what he characterizes as the court’s conclusion that the affidavit of Dr.

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Bingham v. Terminix International Co., 158 F.R.D. 97, 1994 U.S. Dist. LEXIS 14688, 1994 WL 563401 (S.D. Miss. 1994).

158 F.R.D. 97 (Bingham v. Terminix International Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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