Betty Roach, Administratrix of the Estate of Randall Roach, Deceased v. PPGIndustries, Inc. et al.

ca03-654

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CA03-654

October 6, 2004

BETTY ROACH, Administratrix of the AN APPEAL FROM WASHINGTON

Estate of RANDALL ROACH, Deceased COUNTY CIRCUIT COURT

APPELLANT [CIV 2001-507-4]

v.

HONORABLE MICHAEL H. MASHBURN,

PPG INDUSTRIES, INC., et al. CIRCUIT JUDGE

APPELLEES

AFFIRMED

Robert J. Gladwin, Judge

This appeal is from a take-nothing verdict in a product-liability case. Appellant Betty Roach, administratrix of the estate of Randall Roach, deceased, brings this appeal and raises five evidentiary issues and one issue concerning the trial court's refusal to instruct the jury on negligence. We affirm.

Randall Roach worked for over twenty years in several body shops as an auto body repairman, which sometimes required him to paint the cars he repaired. In the course of his work, Roach was exposed to products containing benzene manufactured by appellees PPG Industries, Sherwin Williams, and E.I. DuPont de Nemours. In December2000, Roach was diagnosed with acute myelogenous leukemia (AML). He died on January 18, 2001.

Appellant filed suit on April 20, 2001, later amended, alleging that appellees manufactured the paints, solvents, and respiratory equipment Roach used in his job; that exposure to the paints and solvents caused Roach's AML; and that Roach died from the AML. The complaint alleged causes of action based on strict liability and res ipsa loquitor.1 Appellees denied the material allegations.

Prior to trial, both sides moved to exclude certain evidence. DuPont moved to exclude the testimony of Dr. Greg Oakhill, the decedent's treating physician, concerning his opinion as to the specific causation of decedent's AML. The motion alleged that Dr. Oakhill's opinion on specific causation was not sufficiently reliable to be admitted because he had not conducted tests to determine decedent's level of exposure to benzene or researched the level of benzene exposure known to cause AML. In his deposition, Dr. Oakhill testified that it was his opinion that the decedent had a twenty-year history of exposure to benzene, which was known to cause AML, and that he developed AML from his exposure to benzene. He stated that he had not consulted with any toxicologist, epidemiologist, or industrial hygienist in forming his opinion that the decedent's AML was caused by benzene exposure. Dr. Oakhill also stated that he did not know of any threshold limit of exposure to benzene or the level of decedent's exposure to benzene in order to form his opinion. He also stated that he did not do any independent research onbenzene exposure, other than to rely on articles supplied to him by appellant's attorneys. The trial court excluded Dr. Oakhill's testimony concerning specific causation, stating that Dr. Oakhill's opinion was unrelated to his treatment of the decedent; that he was unable to connect his theory to peer-reviewed literature; that the testimony was likely to confuse the jury; and that the testimony was cumulative to appellant's other experts. The trial court also ruled that appellees could ask Dr. Oakhill whether he was stating an opinion as to specific causation. At trial, Dr. Oakhill stated on cross-examination that he was not giving an opinion on specific causation. His testimony was proffered consistent with his earlier deposition testimony. He also stated that he had done some internet research on the subject, in addition to reviewing the articles supplied to him.

Appellees PPG and Sherwin Williams moved to preclude appellant from offering evidence regarding each company's history of compliance with regulations promulgated by the Occupational Safety and Health Administration (OSHA), the Consumers Product Safety Commission (CPSC), and similar state and federal agencies for products, product labels, and warnings.2 Appellees argued that such evidence was not relevant. During discovery depositions, representatives of PPG and Sherwin Williams stated that both companies had been cited for violations of Department of Transportation (DOT), OSHA, or CPSC labeling requirements. The trial court stated specifically that it would not rule on the motion.

Appellant moved in limine to prohibit Dr. Philip Guzelian to testify concerning cytogenetics and the five and seven chromosome. The motion referenced statements from Dr. Guzelian's deposition in which he stated that he had not done any work on cytogenetics and chromosomal damage for workers exposed to benzene who develop AML. Guzelian also stated that there were no studies concerning deletion of the five and seven chromosome and the development of AML. The court did not rule on the motion in limine prior to trial, instead stating that it was going to take up the matter at the time Dr. Guzelian testified and that appellant should object at that time. The court viewed this as a Daubert3-type objection and allowed Dr. Guzelian to testify for the same reason appellant's experts were allowed to give their opinions. Appellant objected to two articles Dr. Guzelian relied on in forming his opinion. The trial court overruled the objections.

In his trial testimony, Dr. Guzelian made the distinction between being exposed to a substance and getting a dose of the substance. He stated that a dose is the amount of the substance that actually enters the body. He testified that a study funded by the federal government looked at 42,000 painters, including auto body painters, and found an increased risk of leukemia. He also stated that the same study did find a slight increase in lung cancer and possibly bladder cancer. Dr. Guzelian opined that being a painter was not associated with the development of leukemia. He stated that benzene is known, under certain conditions, to cause AML. He also stated that exposure to high amounts ofpure benzene does lead to increased risks of developing AML. Dr. Guzelian stated that he relies on industrial hygienists to do dose estimates. He also stated that there were studies with a link between smoking and AML. He opined that the decedent had spontaneous AML that developed from indigenous, native factors. He stated that this was primary AML, as opposed to secondary AML. He stated that there were studies showing that there is a correlation between AML and damage to the five and seven chromosome. He also stated that the decedent showed no such chromosomal damage. He stated that this was one factor that led him to conclude that the decedent had primary AML.

On cross-examination, Dr. Guzelian admitted that he had not evaluated workers' exposure to benzene at auto body shops. He stated that there were peer-reviewed industrial hygiene studies concerning automotive painting but that he did not use them in forming his opinion. He admitted that he did not work on cytogenetics or the deletion of the five and seven chromosome with leukemia. He also admitted that he had never performed cytogenetic tests on patients with AML. Dr. Guzelian stated that there were no studies to the effect that there must be a deletion of the five and seven chromosome for workers exposed to benzene to develop AML.

Appellees' expert Dr. Bernard Goldstein testified in his deposition that "there's at least a possibility that one cosmic ray coming through this building now, one molecule of benzene that's in this room right now could theoretically conceivably cause [decedent's AML]." Appellees moved in limine to exclude any such testimony on the "one molecule" theory. The trial court granted the motion in limine excluding the testimony. Dr. Goldstein testified at trial that it was his opinion, based on a reasonable degree of medical and toxicological certainty, that it was highly unlikely that decedent's AML was caused by exposure to benzene. Goldstein further testified that he was of the opinion that if there is less than 0.1% there should not be a cancer warning or a leukemia warning on appellees' products. He admitted that he was not a primary expert in reading cytogenetic material but that he did consider himself so in interpreting that material. Dr. Goldstein stated that he considered the 0.1% standard as being a reasonable amount of safety. He stated that the 0.1% works out to one thousand parts per million.

At the close of the evidence, appellant moved to amend the pleadings to conform to the proof so as to allege a negligence theory. Appellant stated that the allegations of failure to warn, failure to test, and failure to inspect were all implicated by the negligence claim. Appellant admitted that there was some overlap between the strict liability and negligence theories. Appellees argued that the case had been tried only on strict liability and not the failure to use ordinary care found in negligence. The trial court refused to allow appellant to amend her complaint to conform to the proof to include a negligence count, ruling that it would be unduly prejudicial to appellees to allow the amendment after all the proof was presented.

The jury returned a verdict finding that appellees were not at fault in causing damages to the decedent. Judgment was entered on the jury verdict on December 6,2002. Appellant filed a motion for a new trial on December 11, 2002. The motion was denied on January 3, 2003. This appeal timely followed.

Appellant raises six issues in this appeal: (1) that the trial court erred in excluding the testimony of Dr. Greg Oakhill on the issue of specific causation; (2) that the trial court erred in requiring Dr. Oakhill to pretend that he had no opinion as to specific causation; (3) that the trial court erred in prohibiting appellant from cross-examining appellees' expert, Dr. Bernard Goldstein, regarding the theory that one molecule of benzene could cause AML; (4) that the trial court erred in allowing Dr. Philip Guzelian to testify concerning cytogenetics and the five and seven chromosome; (5) that the trial court erred in excluding appellant's evidence that appellees had been cited for violations of federal regulations regarding labeling; and (6) that the trial court erred in refusing to instruct the jury on the issue of negligence.

Arkansas courts have consistently held that trial courts are accorded wide discretion in evidentiary rulings, and we will not reverse such rulings absent a manifest abuse of discretion. Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001); Jackson v. Buchman, 338 Ark. 467, 996 S.W.2d 30 (1999); Lovell v. Beavers, 336 Ark. 551, 987 S.W.2d 660 (1999). Nor will we reverse a trial court's ruling on evidentiary matters absent a showing of prejudice. Grummer v. Cummings, 336 Ark. 447, 986 S.W.2d 91 (1999); Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). Moreover, the balancing of probative value against prejudice, pursuant to Ark. R. Evid. Rule 403, is a matter left to the sound discretion of the trial judge, and that ruling will not be reversedabsent a manifest abuse of discretion. Grummer, supra. Similarly, a trial court has wide latitude to impose reasonable limits on cross-examination based upon concerns about confusion of the issues or interrogation that is only marginally relevant. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994).

In her first point, appellant argues that the trial court erred in excluding Dr. Oakhill's testimony concerning specific causation. Appellant argues that Dr. Oakhill performed a "differential diagnosis" and, therefore, his opinion should be admissible as to the specific causation of the decedent's AML. This theory, however, was not presented to the trial court, and we will not address a different argument raised for the first time on appeal. Thompson v. Perkins, 322 Ark. 720, 911 S.W.2d 582 (1995). Even if the issue had been preserved, we would not reverse the trial court.

In Chavers v. General Motors Corp., 349 Ark. 550, 79 S.W.3d 361 (2002), our supreme court adopted the "frequency, regularity, and proximity" test to use in determining causation in cases involving exposure to toxic substances. Under this test, appellant was required to prove the following elements: (1) Mr. Roach was exposed to a particular benzene- containing product made by appellees, (2) with sufficient frequency and regularity, (3) in proximity to where he actually worked, (4) such that it is probable that the exposure to appellees' products caused Mr. Roach's injuries. Dr. Oakhill's testimony did not meet the Chavers requirements when he stated that he did not know of any threshold limit of exposure to benzene, nor did he need to know the level of decedent's exposure to benzene in order to form his opinion. Further, Dr. Oakhill's causation opinion was not based upon a methodology that had been tested, subjected to peer review, and generally accepted in the medical community. Significantly, Dr. Oakhill did not systematically rule out all other possible causes. He was clearly more concerned with identifying and treating the decedent's condition than he was with identifying the specific substance that caused his condition. He arrived at his opinion about benzene more as an afterthought, in an ad hoc manner. We affirm on this point.

Appellant's second point is that the trial court erred in ruling that appellees could ask Dr. Oakhill whether he was presenting an opinion as to the specific causation of the decedent's AML and that the trial court instructed Dr. Oakhill to answer that he was not. When asked about this procedure, appellant stated that she had no objection to such procedure. It is well settled that an appellant may not argue on appeal that a trial court acted erroneously when the appellant encouraged, acquiesced, or consented to the action. Narup v. Narup, 75 Ark. App. 217, 57 S.W.3d 224 (2001).

Appellant argues that she did not acquiesce, but was instead proceeding under protest. We acknowledge that earlier in the proceedings, appellant did object to appellees' being able to ask the question about specific causation. However, there was considerable discussion between the judge and the attorneys after the initial objection, and we believe the following colloquy between the judge and the attorneys shows that appellant did, in fact, acquiesce to the procedure to be employed by the court:

The Court: Do you have any objection to the procedure I am talking about? I am going to let them ask that one question . . .

Mr. Winburn: And the specific question they are going to ask is, "You're not here to render an opinion on specific causation?"

The Court: Yes, sir.

Mr. Winburn: I have no objection to that.

Although we are affirming on the basis that this point was not preserved for appeal, we would be remiss if we did not comment on the trial judge's handling of this matter. Trial courts have considerable discretion in managing and controlling the proceedings at a trial, including controlling the witnesses. Walcott & Steele, Inc. v. Carpenter, 246 Ark. 95, 436 S.W.2d 820 (1969). However, in excluding the specific causation testimony, then allowing appellee to ask the doctor whether he was there to offer such testimony and requiring Dr. Oakhill to give a particular answer, which was, in fact, contrary to the doctor's opinion, the trial judge in this instance came dangerously close to exceeding the bounds of his discretion. The better approach would have been for the trial judge to simply disallow Dr. Oakhill's testimony on specific causation and stop there. Not only did the judge's actions require a witness to testify, in effect, that he had no opinion when in fact he did, it created a situation in which the jury might have been misled by implication. The trial judge's conduct in excluding Dr. Oakhill's opinion testimony but directing him to testify that he was not there to give an opinion on specific causation could have created the impression with the jury that the doctor's overall credibility was lacking because he had no opinion about what caused his patient's leukemia.

The trial judge's actions also could have created a situation in which appellees could insinuate to the jury, by drawing attention to the absence of an opinion on specific causation, that had Dr. Oakhill had such an opinion, it would have been adverse to appellant. See Reinmueller v. Chicago Motor Coach Co., 93 N.E.2d 120 (Ill. App. Ct. 1950). All of these potential problem areas could be eliminated by the proper use of discretion in controlling the proceedings, such as by disallowing inadmissible evidence and limiting the scope of questions that could be asked.

Appellant next argues that the trial court erred in prohibiting her from cross-examining appellees' expert, Dr. Bernard Goldstein, regarding the theory that one molecule of benzene could cause AML. As noted earlier, Dr. Goldstein testified in his deposition that "there's at least a possibility that one cosmic ray coming through this building now, one molecule of benzene that's in this room right now could theoretically conceivably cause [decedent's AML]." The trial court granted the motion in limine excluding testimony on the "one molecule" theory. Appellant now argues that such testimony was necessary to counter appellees' argument that they complied with the applicable 0.1% standard and that it would confirm testimony by their expert, Dr. Peter Infante, that there was no safe level of exposure to benzene.

As the trial court noted in ruling on the motion, the issue was not whether one molecule of benzene can cause AML; rather, the issue was what caused decedent's AML, and appellant's counsel agreed. Arkansas Rule of Evidence 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." This court has held that the weighing under Rule 403 is left to the trial court's sound discretion and will not be reversed absent a showing of manifest abuse. Potter v. Magee, 61 Ark. App. 112, 964 S.W.2d 412 (1998). Here, appellant's counsel agreed that the evidence went to a secondary issue. Therefore, we cannot say that the trial court abused its discretion in prohibiting cross-examination on this point.

For her fourth point, appellant argues that the trial court erred in allowing Dr. Philip Guzelian to testify concerning cytogenetics and the five and seven chromosome. Appellant argues that Dr. Guzelian's opinion is based on unreliable science. Under Daubert, supra, courts should review only the methodology used by the expert, not his conclusion in order to determine its reliability. See also Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003). This is because "vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596. This court has stated that "[i]t is not intrinsically `unscientific' for experienced professionals to arrive at a conclusion by weighing all available scientific evidence - this is not the sort of `junk science' with which Daubert was concerned." Regions Bank v. Hagaman, 79 Ark. App. 88, 95, 84 S.W.3d 66, 70 (2002) (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 153 (1997) (Stevens, J., concurring in part and dissenting in part)). Here, Dr. Guzelian's testimony was based on peer-reviewed studies, despite the fact that he admitted that there were other studies he did not rely upon supporting an opposite conclusion. The reliance on certain studies and not other studies goes to the weight to be given Dr. Guzelian's testimony and not its admissibility. Appellant argues that, under the analysis used by the trial court to exclude Dr. Oakhill's opinion, Dr. Guzelian's testimony should also be excluded. However, one factor the trial court relied on in excluding Dr. Oakhill's opinion was the lack of connection to peer-reviewed studies. Here, although Dr. Guzelian testified in his deposition that there were no studies supporting his opinion, his testimony at trial did rely on published studies and those studies were admitted into evidence. We cannot say the trial court abused its discretion in admitting Dr. Guzelian's testimony and, therefore, affirm on this point.

As her fifth point, appellant argues that the trial court erred in excluding appellant's evidence that appellees had been cited for violations of federal regulations regarding labeling. Appellees alleged that such evidence was irrelevant. The trial court did not specifically rule on the motion in limine and the abstract does not reveal any proffer. Appellant, citing Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984), argues that it was error for the trial court to preclude her from "fighting fire with fire" by showing that PPG and Sherwin Williams violated various DOT, CPSC, and OSHA labeling requirements. However, appellant did not make this argument to the trial court. We cannot consider appellant's argument because we do not address arguments made for the first time on appeal or theories upon which the trial court has not ruled. Presley v. Presley, 66 Ark. App. 316, 989 S.W.2d 938 (1999). We affirm on this point.

For her final point, appellant argues that the trial court erred in failing to instruct the jury on a negligence theory. The trial court refused to allow appellant to amend her complaint to conform to the proof to include a negligence count, ruling that it would be unduly prejudicial to appellees to allow the amendment after all the proof was presented. It was the duty of the court to submit a cause to the jury only upon issues raised by the written pleadings, or within the pleadings treated as amended to conform to the proof. Copeland v. Hollingsworth, 259 Ark. 603, 535 S.W.2d 815 (1976); Shibley v. White, 193 Ark. 1048, 104 S.W.2d 461 (1937); Dominion Textile Co. v. Beck, 188 Ark. 1090, 69 S.W.2d 862 (1934); Ozark Fruit Growers Ass'n v. Tetrick, 130 Ark. 165, 197 S.W. 30 (1917); Arkansas Fertilizer Co. v. Banks, 95 Ark. 86, 128 S.W. 566 (1910); Ward v. Russell, 32 Ark. App. 86, 796 S.W.2d 588 (1990). Ark. R. Civ. P. 15 provides an exception to that rule and vests broad discretion in the trial court to permit amendment to the pleadings, and the exercise of that discretion by the trial court will be sustained unless it is manifestly abused; and one seeking reversal on that ground must show the manifest abuse of discretion. Wingfield v. Page, 278 Ark. 276, 644 S.W.2d 940 (1983). Therefore, the issue is whether the trial court abused its discretion in refusing to allow the pleadings to be amended to conform to the proof.

Appellant argues that she pled a negligence cause by alleging that appellees failed to warn of the dangers of their products. As a general rule, there is a duty to warn the ultimate user of a product of the risk of the product. See West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608 (1991). This duty exists under either a negligence theory or astrict-liability theory. Id. Because the failure to warn is also part of a strict-liability claim, any evidence introduced was properly directed to that claim and not a negligence claim. This court will not imply consent to conform the pleadings to the proof merely because evidence relevant to a properly pled issue incidentally tends to establish an unpled one. Heartland Cmty. Bank v. Holt, 68 Ark. App. 30, 3 S.W.3d 694 (1999). Under these circumstances, the only theory before the jury was the strict-liability claim. Appellant also argues that references to allegations of negligence made in appellees' answers indicate that appellees realized they would not suffer prejudice if the amendment were allowed. This may have been true had appellant not withdrawn the res ipsa claim a few weeks prior to trial. With the res ipsa claim withdrawn, appellees were no longer on notice that a negligence theory would be at issue at trial. We affirm on this point.

Affirmed.

Pittman and Neal, JJ., agree.

1 The res ipsa loquitor claim was withdrawn by appellant prior to trial.

2 DuPont also moved to exclude evidence concerning any failure on its part to comply with OSHA labeling or warning requirements. Appellant submitted no proof that DuPont had, in fact, violated any standard.

3 Daubert v. Merrell-Dow Pharm., Inc., 509 U.S. 579 (1993).