Junk ex rel. T.J. v. Terminix International Co.

594 F. Supp. 2d 1062, 2008 U.S. Dist. LEXIS 108213
CourtDistrict Court, S.D. Iowa
DecidedOctober 31, 2008
DocketNo. 4:05-cv-06008-JAJ
StatusPublished

This text of 594 F. Supp. 2d 1062 (Junk ex rel. T.J. v. Terminix International Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Junk ex rel. T.J. v. Terminix International Co., 594 F. Supp. 2d 1062, 2008 U.S. Dist. LEXIS 108213 (S.D. Iowa 2008).

Opinion

ORDER

JOHN A. JARVEY, District Judge.

This matter comes before the Court pursuant to Defendants The Dow Chemical Company and Dow AgroSciences LLC’s (collectively “Dow AgroSciences”) October 8, 2008, Motion in Limine to exclude the opinions of Dr. Richard Fenske, Ph.D., MPH, and Dr. Cynthia Bearer’s specific causation opinions derived from Dr. Fenske’s report. [Dkt. 381]. Defendant Terminix International Company Limited Partnership (“Terminix”) filed a joinder to Dow AgroSciences’ motion on October 9, 2008. [Dkt. 334]. Plaintiff Rene Junk, as Parent and Next Best Friend of T.J., a minor (“Junk”), responded to Dow Agro-Sciences’ motion on October 27, 2008. [Dkt. 351],

Through this final expert witness, Junk was required to reliably demonstrate that the Junk’s exposure to chlorpyrifos “exceeded safe levels.” Bonner v. ISP Technologies, Inc., 259 F.3d 924, 931 (8th Cir.2001). Dr. Fenske failed to make such a demonstration. While Dr. Fenske reasonably estimates the amount of chlorpyrifos that was applied inside the Junk home, his opinions regarding the Junks’ exposure and dosage suffer from a number of serious flaws. First, in rendering his opinions in this matter, Dr. Fenske did not apply the scientifically reliable model for estimating exposure that he typically utilizes in his research and teaching. Second, he based his opinion solely on the amount of chlorpyrifos applied to the Junk home without considering the size of the house, the areas treated, and the amounts applied to the exterior of the home. Third, Dr. Fenske attempted to compare the circumstances of chlorpyrifos exposures in the Junk home with the circumstances of exposures that occurred in certain academic studies. These comparisons are not reliable because they lack a sufficient factual basis. For these reasons, which are more fully explained below, Dow AgroSciences Motion in Limine is granted in its entirety.

[1064]*1064 I. FACTUAL HISTORY 1

In February of 1992, Plaintiff Rene Junk became pregnant with her first child. During Rene Junk’s pregnancy, Terminix applied the pesticide Dursban L.O. (“Durs-ban”) to cracks and crevices in the interior of the Junk home to treat spider infestation. Dursban, a trademark of Dow Agro-Sciences, contains the organophosphate chlorpyrifos. Following Tyler Junk’s birth on August 28, 1992, Terminix continued to regularly apply Dursban to the Junk home. The last application of Dursban to the Junk home occurred on September 15, 1994.

On June 25, 1992, doctors discovered a chorioangioma, or a large tumor, in Tyler Junk’s umbilical cord. Throughout her pregnancy, Rene Junk suffered a number of symptoms, including nausea, vomiting, diarrhea, and skin rash. On August 25, 1992, three days prior to Tyler Junk’s birth, doctors discovered that he suffered from an enlarged heart and tachycardia, or a rapid heart rate. On August 28, 1992, Rene Junk gave birth to Tyler Junk. Tyler Junk suffered from tachycardia and had an enlarged heart and liver at the time of birth. The birth was approximately two months premature. Following the birth of her son, Rene Junk was diagnosed with pulmonary edema.

Throughout the first months of his life, Tyler Junk suffered from fussiness, loss of appetite, difficulty with breathing, and a runny nose. From the time that Tyler Junk was approximately six months old, Rene Junk observed that he appeared to exhibit symptoms of developmental delay. Tyler Junk was later diagnosed with cerebral palsy, and currently suffers from significant developmental delay.

On October 3, 2005, Rene Junk, on behalf of her minor son, filed a lawsuit against Dow AgroSciences, Terminix, and other defendants in Iowa state court. [Dkt. 1]. Junk alleged that her son suffered physical, neurological, and psychological injuries as a result of exposure to chlorpyrifos, which is contained in Durs-ban. On November 4, 2005, Defendants filed a notice removing the lawsuit to the United States District Court for the Southern District of Iowa. [Dkt. 1],

II. PROCEDURAL HISTORY

On August 10, 2006, this Court issued the initial scheduling order and discovery plan in this matter. [Dkt. 56]. After granting an extension, the Court set Junk’s initial expert witness disclosure deadline for June 18, 2007. [Dkt. 80]. In compliance with that deadline, Junk disclosed several expert witnesses, including Dr. Cynthia Bearer, M.D., Ph.D. and Dr. Mohamed Abou-Donia, Ph.D. Junk did not disclose Dr. Fenske as an expert witness on or before the disclosure deadline.

Terminix and Dow AgroSciences deposed Dr. Abou-Donia and Dr. Bearer on January 17, 2008, and January 23, 2008, respectively. During their depositions, both Dr. Abou-Donia and Dr. Bearer referred to a January 15, 2008, preliminary report completed by Dr. Fenske. The preliminary report contained an exposure analysis by Dr. Fenske. On March 12, 2008, Junk disclosed Dr. Fenske as an expert witness. The disclosure included Dr. Fenske’s revised report, also dated March 12, 2008. Dr. Fenske’s revised report is identical to the preliminary report except that it contains Dr. Fenske’s responses to criticisms of his qualifications.

[1065]*1065Dr. Fenske is a professor in the Department of Environmental and Occupational Health Sciences in the School of Public and Community Medicine at the University of Washington. [Dkt. 161, Junk App., p. 855]. He is also the associate chair of that department. [Dkt. 161, Junk App., p. 855]. Dr. Fenske is the director of the Pacific Northwest Agricultural Safety and Health Center, a federally-funded initiative that addresses occupational health and safety in the farming, forestry, and fishing industries. [Dr. Fenske Depo., p. 60]. Dr. Fenske received his MPH in environmental health sciences from the University of California, Berkeley, in 1978, and his Ph.D. in environmental health sciences from the same institution in 1984. [Dkt. 161, Junk App., p. 855]. Dr. Fenske is an expert in environmental health sciences generally, with exposure science as a spe-ciality within that field. [Dr. Fenske Depo., p. 59].

In his preliminary and revised reports and in his first declaration, Dr. Fenske provided the following opinions:

a. The nature and safety of Dursban products applied at the Junk residence were misrepresented by Ter-minix employees.
b. Dursban applications at the Junk residence were made by unqualified personnel.
c. Dursban applications at the Junk residence were made improperly, resulting in overuse of these products.
d. Chlorpyrifos, the active ingredient in Dursban products, was known to be a hazardous neurotoxic chemical agent at the time of these applications, and was the subject of regulatory scrutiny.
e. Inadequate data existed at the time of the applications to claim that no deleterious health effects might result from use in residences.
f. Mrs. Rene Junk was almost certainly exposed during her pregnancy to levels of chlorpyrifos sufficiently high to produce neurologic deficits in the child that she carried.
g. Tyler Junk was almost certainly exposed to levels of chlorpyrifos during early childhood that exceeded the U.S.

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Bluebook (online)
594 F. Supp. 2d 1062, 2008 U.S. Dist. LEXIS 108213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/junk-ex-rel-tj-v-terminix-international-co-iasd-2008.