Alsadi v. Intel Corp.

          ORDER

          David G. Campbell, Senior United States District Judge.

         On 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.

         In an 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.

         At the 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.

         I. Summary Judgment Ruling in Light of Supplemental Briefing.

         A. Summary Judgment on RADS.

         Whether 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).

         RADS is 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)).

         The 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).

         Plaintiffs' 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”).

         Plaintiffs' 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).^[1]

         But the 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 ...