United States District Court, D. Arizona
G. Campbell, Senior United States District Judge.
February 28, 2016, Plaintiff Ahmad Alsadi was exposed to
hydrogen sulfide (“H2S”) while working at
Defendant Intel Corporation's technology development
campus in Chandler, Arizona. Alsadi asserts negligence claims
against Intel, alleging that his exposure to H2S caused him
toxic inhalation injuries. Doc. 20 ¶ 21. He claims to
have reactive airways dysfunction syndrome
(“RADS”) which has rendered him permanently
disabled. See Docs. 161 at 5, 195 at 3.
order dated September 30, 2019, the Court granted Intel's
motions to exclude Plaintiffs' experts from offering
causation opinions in Plaintiffs' case-in-chief at trial
or in response to Intel's summary judgment motion. Doc.
204 at 2-19, 22-25. The Court denied summary judgment on the
issue of causation because a jury reasonably could find,
without the benefit of expert medical testimony, that Alsadi
was exposed to H2S and the exposure caused a toxic inhalation
injury on the night in question and immediately thereafter.
Id. at 30-33.
Court's direction, the parties have filed supplemental
briefs addressing two issues: (1) whether an expert opinion
is required to prove that Alsadi's exposure to H2S caused
RADS, and (2) the extent of damages Plaintiffs can seek at
trial if they cannot recover for RADs without an expert
opinion. Id. at 33-34; Docs. 205, 206. For reasons
stated below, the Court will grant summary judgment on the
issue of whether Alsadi's exposure to H2S caused RADS and
deny summary judgment on the extent and duration of
Plaintiffs' injuries. The Court will also grant
Plaintiffs' request for clarification of its previous
order. Doc. 209.
Summary Judgment Ruling in Light of Supplemental
Summary Judgment on RADS.
expert medical testimony is required to establish causation
under Arizona law “depends upon the nature of the
illness with which the jury is concerned.” Crystal
Coca-Cola Bottling Co. v. Cathey, 317 P.2d 1094, 1100
(Ariz. 1957). Arizona courts “have long recognized that
unless the result of an accident is clearly apparent to a lay
person, expert medical evidence is required to establish the
fact of an injury and its causal connection to [the
accident].” Jones v. Indus. Comm'n of
Ariz., No. 2 CA-IC 2010-0009, 2011 WL 288028, at *3
(Ariz.Ct.App. Jan. 27, 2011) (citations omitted).
a chronic disease that begins with the sudden onset of asthma
symptoms following a high level exposure to a toxic gas,
vapor, or fume. See Doc. 161 at 12 (citing the
definition of RADS provided by the National Center for
Biotechnology Information); Howell v. CSX Transp.,
Inc., No. 2:11-CV-079 JD, 2013 WL 6145730, at *2 (N.D.
Ind. Nov. 21, 2013) (RADS is an “irritant-induced
asthma typically caused by exposure to high concentrations of
chemical fumes”); Karamolengos v. Durango Ga. Paper
Co., No. CV202-085, 2007 WL 9701006, at *2 (S.D. Ga.
Sept. 27, 2007) (“RADS is a permanent condition that
occurs when an individual has a sudden onset of non-allergic
asthma caused by a high level exposure to an irritant
gas.”); Mattis v. Carlon Elec. Prods., 114
F.Supp.2d 888, 890 (D.S.D. 2000) (describing the criteria for
RADS as set forth in the article first naming the disease)
(citing Stuart M. Brooks, Mark A. Weiss & I.L. Bernstein,
Reactive Airways Dysfunction Syndrome:
Persistent Asthma Syndrome after High Level Irritant
Exposures, 88 Chest 376 (Sept. 1985)).
Court agrees with the Seventh Circuit's observation that
“a typical layperson does not possess the requisite
knowledge to draw a causative line, without the assistance of
a medical expert, between a brief encounter with [a toxic]
gas and the onset of . . . RADS[, ] a disease with which . .
. most lay people have no familiarity[.]” Higgins
v. Koch Dev. Corp., 794 F.3d 697, 702 (7th Cir. 2015).
Courts in other jurisdictions have reached the same
conclusion. See Kolesar v. United Agri Prods., Inc.,
412 F.Supp.2d 686, 696 (W.D. Mich. 2006) (requiring the
plaintiff to present expert testimony that his exposure to
metam sodium fertilizer caused RADS “because the
effects of toxic chemical exposure are complex and not within
the ken of ordinary experience”); Byous v. L.M.
Scofield Co., No. 3:07-CV-053-JTC, 2009 WL 10664903, at
*10 (N.D.Ga. Jan. 27, 2009) (“Plaintiffs . . . cannot
prove that the Cureseal-S vapors caused [the plaintiff's]
RADS without expert testimony.”); Zamora v.
Champion Cooler Corp., No. 05-16-00577-CV, 2018 WL
507362, at *1-2 (Tex. App. Jan. 23, 2018) (requiring expert
testimony to prove that exposure to fumes from an acetylene
torch and machine grease caused RADS).
reliance on Sunnycalb v. CSX Transportation, Inc.,
926 F.Supp.2d 988 (S.D. Ohio 2013), is misplaced. Doc. 206 at
3-4. The plaintiff in that case presented testimony of
medical experts “who conducted numerous diagnostic
tests and ruled out other possible causes before diagnosing
[the] plaintiff with RADS.” Sunnycalb, 926
F.Supp.2d at 996. One expert had “exhaustively reviewed
the medical literature regarding RADS and the effects of
exposure to chlorine[, ]” and expressly opined that the
plaintiff's “sudden chemical exposure to chlorine .
. . could generally cause, and in [his] case, did
specifically cause, [the] plaintiff's injuries.”
Id. Plaintiffs present no admissible expert opinion
that the exposure in this case caused RADs. Moreover,
Sunnycalb involved claims under the Federal
Employers' Liability Act for which a “a relaxed
standard of causation applies” in “comparison to
tort litigation at common law[.]” CSX Transp., Inc.
v. McBride, 564 U.S. 685, 692 (2011) (citation omitted);
see Claar v. Burlington N. R.R. Co., 29 F.3d 499,
504 (9th Cir. 1994) (noting the “modicum of causation
[the] FELA requires”).
citation to Gass v. Marriott Hotel Services, Inc.,
558 F.3d 419 (6th Cir. 2009), fares no better. Doc. 206 at 3.
The Gass plaintiffs became ill within minutes of
entering a hotel room filled with a putrid cloud of toxic
pesticides, and were diagnosed with acute pesticide exposure
shortly thereafter. 558 F.3d at 422-24. The Sixth Circuit
concluded that it did not take an expert to find that the
defendants likely caused the plaintiffs' injuries given
their immediate adverse reaction to the pesticides in the
hotel room. Id. at 433. The Court has reached a
similar conclusion in this case: “a jury reasonably
could find, without the benefit of expert medical testimony,
that Alsadi was exposed to H2S and the exposure caused a
toxic inhalation injury.” Doc. 204 at 31-32 (citing
Cathey, 317 P.2d at 1100).
claim that the H2S exposure caused RADS - a permanent disease
with which most lay people have no familiarity -
distinguishes this case from Gass. The Seventh
Circuit aptly explained the distinction in Higgins:
[T]he Gass plaintiffs complained only of
“chemical poisoning” (i.e., headache, itching,
dizziness, etc.). The connection between the inhalation of
harmful pesticides - exposure to which occurred in a confined
hotel room - and those symptoms is fairly obvious, as the
Sixth Circuit found. Here, by contrast, Higgins primarily
complains that ...