National Bank of Commerce v. Dow Chemical Co.

1 S.W.3d 443, 338 Ark. 752, 1999 Ark. LEXIS 499
CourtSupreme Court of Arkansas
DecidedOctober 14, 1999
Docket98-1148
StatusPublished
Cited by25 cases

This text of 1 S.W.3d 443 (National Bank of Commerce v. Dow Chemical Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Bank of Commerce v. Dow Chemical Co., 1 S.W.3d 443, 338 Ark. 752, 1999 Ark. LEXIS 499 (Ark. 1999).

Opinion

Donald L. Corbin, Justice.

Appellants National Bank of Commerce, as guardian of the estate of Ashley Marie Smits, and William J. Smits Jr., individually and as Ashley’s parent and next friend, initiated this products-liability action on September 16, 1994, in the Pulaski County Circuit Court against Dow Chemical Company, a Delaware corporation; Rofan Services, Inc., a Delaware corporation and wholly owned subsidiary of Dow; Epco, Inc. of Indiana d/b/a DowElanco, an Indiana corporation; and two John-Doe defendants, manufacturers and distributors of a pesticide known as Dursban LO (collectively, the “pesticide defendants”). Appellants also sued Steam Services, Inc., a California corporation and manufacturer of a fire-reodorant product called Firefog 404. Additionally, Appellants named as defendants Adams Pest Control of North Little Rock, an Arkansas corporation; Metro Builders & Restoration Specialists, Inc., an Arkansas corporation; and two John-Doe defendants, applicators of the Dursban and Firefog products (collectively, the “applicator defendants”).

Appellants’ complaint originates from allegations that during her pregnancy, Ashley Smits’s mother was exposed to Dursban and Firefog that ultimately caused Ashley’s severe birth defects. Maria Smits, Ashley’s mother, was employed at the Eagle Bank in Sherwood, Arkansas, during the early months of 1991. Ashley was conceived on or about January 16, 1991; Maria learned that she was pregnant on February 5, 1991. Ashley was born on September 20, 1991. On February 6, 1991, Adams Pest Control made a “crack and crevice” application of a 0.5% solution of Dursban in water around the baseboards of the interior of the bank. Maria Smits worked that day until two hours after Adams sprayed the pesticide.

One week later, on February 11, 1991, an electrical fire occurred at the bank. On that same day, Metro Builders & Restoration Specialists, Inc., applied Firefog to remove the odor left by the fire. Maria Smits also worked on this day and continued to work at the bank until early April 1991. In the instant case, Appellants claimed that the pesticide defendants, Steam Services, and the applicator defendants, either singly, or in combination, proximately caused Ashley’s birth defects.

Prior to the instant suit in state court, on January 27, 1994, Appellants filed a case in federal court 1 against the pesticide defendants and Steam Services. Notably, Appellants elected not to join the applicator defendants to ensure complete diversity in federal court. On May 19, 1996, and December 30, 1996, respectively, the federal court granted Steam Services’ and the pesticide defendants’ motions for summary judgment after excluding the opinion testimony of Appellants’ expert witnesses. In a sixty-six page opinion, the federal court dismissed Appellants’ complaint. See National Bank of Commerce v. Dow Chemical Co., 965 F. Supp. 1490 (E.D. Ark. 1996), aff'd, 133 F.3d 1132 (8th Cir. 1998). In reaching its decision, the federal district court concluded that Appellants failed to show that the proffered expert testimony had a valid scientific foundation, as required by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Specifically, the federal court excluded Appellants’ experts’ testimony because it was not based upon accepted scientific methodology for determining whether a chemical agent can cause birth defects in humans. Subsequently, in National Bank of Commerce, 133 F.3d 1132, the Eighth Circuit Court of Appeals affirmed the district court’s decision.

Following the federal court’s decision dismissing Appellants’ case against the pesticide defendants and Steam Services, the state trial court considered summary-judgment motions filed in the instant case by the pesticide defendants, Steam Services, and the applicator defendants. On June 3, 1998, after considering the motions, responses, pleadings of record, and statements of counsel, and subsequent to a hearing on May 15, 1998, the trial court granted Appellees’ motions for summary judgment and dismissed Appellants’ complaint. From that order comes the instant appeal, challenging the trial court’s findings that (1) all issues raised in the state case could have been addressed in the federal action, and (2) res judicata or collateral estoppel bars further litigation in state court against all Appellees. We find no merit in Appellants’ arguments, and we affirm the trial court’s grant of summary judgment in favor of all Appellees.

Notably, Appellants also urge this court to consider the standards of admissibility of expert testimony pursuant to Daubert, 509 U.S. 579, and to issue a detailed opinion regarding Daubert “that will offer guidance to attorneys and the lower courts of this State.” Although this appeal was originally filed in the Arkansas Court of Appeals, upon Appellants’ motion to transfer, we accepted the case to consider an issue of substantial public interest. See Ark. Sup. Ct. R. 1—2(b)(4). However, Appellants seek an advisory opinion with regard to Daubert. The state trial court never ruled on the applicability of the Daubert standards nor on the admissibility of Appellants’ expert testimony. Rather, the trial court ruled upon Appellees’ summary-judgment motions and concluded that res judicata and collateral estoppel barred Appellants’ action. Accordingly, we address the merits of the summary-judgment issue only.

I. Standard of Review

In reviewing summary-judgment cases, this court need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Further, the moving party always bears the burden of sustaining a motion for summary judgment. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. The moving party is entided to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Ark. R. Civ. P. 56; Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 966 S.W.2d 241 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).

Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Dillard v. Resolution Trust Corp., 308 Ark. 357, 824 S.W.2d 387 (1992).

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Bluebook (online)
1 S.W.3d 443, 338 Ark. 752, 1999 Ark. LEXIS 499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-bank-of-commerce-v-dow-chemical-co-ark-1999.