UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-40691

_____________________

OLAN J. GUILBEAU, SR., Et Al.,

Plaintiffs-Intervenors-Appellees,

Cross-Appellants,

versus

W. W. HENRY CO., Et Al.,

Defendants-Appellants,

Cross-Appellees.

ELWOOD STEVENS, Et Al.,

Intervenors-Appellants,

Cross-Appellees.

_________________________________________________________________

Appeals from the United States District Court

for the Western District of Louisiana

_________________________________________________________________ June 11, 1996

Before REYNALDO G. GARZA, BARKSDALE, and EMILIO M. GARZA, Circuit

Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The linchpin of this appeal is whethe r plaintiffs presented

evidence of product defect sufficient to with stand judgment as a

matter of law. W. W. Henry Company and its insurer, Truck

Insurance Exchange, challenge a judgment on a jury verdict awarding

$2 million to Olan Guilbeau for c hronic toxic encephalopathy

allegedly caused by exposure to a carpet adhesive manufactured by

Henry, and $900,000 (remitted to $50,000) to his wife, for loss ofOne of Guilbeau's diaries states:

At the beginning of my employment a t the New

Iberia Sales Lot I bro ught to the manager's

attention that there was a sm ell in the ...

[o]ffice.

- 2 - consortium, contending that there is insufficient evidence of

product defect and causation, and, in the alternative, that a new

trial should h ave been granted because the Guilbeaus' attorneys

del iberately appealed to jury prejudice by making inflammatory

arguments and referring to inadmissible evidence. Guilbeau's wife

cross-appeals the remittitur; the Guilbeaus cross-appeal the award

of prejudgment interest, and challen ge the exclusion of certain

evidence. Intervenors Elwood Stevens and his law firm, previous

counsel for the Guilbeaus, appeal from the district court's refusal

to award them any attorney's fees; the Guilbeaus cross-appeal the

allowance of intervention and the award of expenses to that firm.

Because no rational juror could find that Henry's product was

defective, the judgments in favor o f the Guilbeaus and the

intervenors are REVERSED and judgment is RENDERED for Henry.

I.

From the 1970s until August 1986, Guilbeau worked as a mobile

home salesman for various entities in and around New Iberia,

Louisiana. At the end of 1982, after his mobile home business

failed and he took personal bankruptcy, he returned to work for

Mobile Home Brokers (Luv Mobile Homes) in New Iberia. In 1985, he

began comp laining about an unpleasant odor in the mobile home

office in which he worked. 1 Mrs. Guilbeau testified that the....

I have been complaining ... for over a year,

but

... did not know what this odor was or

where it was coming from. In accordance to

[ sic ] the information I have received lately

that when particle board gets wet it releases

... chemicals which is called off-gasing

... when its [ sic ] hot a nd humid ... [and this]

off-gasing [is] dangerous to human health.

There was evidence that new mobile homes have strong smells, from

formaldehyde, that irritate the eyes and nose.

Two diaries, and a copy of another diary contai ning Mrs.

Guilbeau's handwritten additions, were admitted into evidence.

Although one of the diaries contains a cover page which includes

the statement , "I want all hereinwritten presented as evidence",

Mrs. Guilbeau testified that the diary was prepared in 1987 or 1988, for the purpose of trying to get medical help for Guilbeau,

and not for the purpose of litigation. And, Mrs. Guilbeau

testified that unusual phrasing (for example, "Due to the extreme

buckling of said mobile home particle board flooring in said lobby

and restroom area in said Mobile Home Office, ...") was just the

way her husband talks.

In a January 1993 minute entry, the district court stated

that, upon advice of all counsel, Guilb eau was unfit as a party

plaintiff; counsel were given 60 days to substitute a curator, or

to show cause why Guilbeau had the procedural capacity to stand

trial. An amended minute entry conditioned the continuance on

Guilbeau' s examination by a psychiatrist to determine whether he

had the physical and mental capacity to act as party plaintiff.

That August, Henry moved to dismiss, asserting that Guilbeau

lacked the capacity to proceed. The court denied the motion on

December 22.

On January 24, 1994 (the day the case was set for trial),

Henry moved to compel Guilbeau's testimony or, in the alternative,

for a competency hearing on whether he could testify. At a hearing

that same day, Henry's expert witness, Dr. Berger, who had examined

Guilbeau over the preceding weekend, testified that, if present and

- 3 - mobile home was parked in a low area, and that the smell from

underneath it would seep into Guilbeau's office from an improperly

sealed air conditioning duct; she stated that it was a rotten

smell , but never made him sick. 2 The mobile home had beena witness at trial, Guilbeau pro bably would disrupt the trial

because he has the emotional level of an eight-year-old, is unruly,

and throws violent, explosive tantrums as soon as he is stressed.

The court apparently rejected Dr. Berger's suggestion that a

trained policeman be appointed to assist the cour t in keeping

Guilbeau under control, and that a psychiatrist subject him to a major tranquilizer to prevent him from tearing the courtroom apart,

because Guilbeau did not testify at trial. Mrs. Guilbeau testified

that he was not capable of it physically or emotionally, because of

the odors in the courtroom, and because the questions would cause

him to become agitated and confused.

Shaw testified similarly that Guilbeau was in and out of the

office while the repairs were being made.

- 4 - manufactured in 1978; the floor was rotten and buckling, and the

carpet was old and worn out.

In August 1986, arrangements were made to repair the floor and

replace the carpet in the mobile home office. The new carpet was

installed in the living-dining area, which served as a waiting room

for customers, part of the hallway, and in the bathroom, but not in

Guilbeau's office.

On Thursday, August 14, two of Guilbeau's co-workers, Jonathan

Shaw and Rawlin Duplechin, removed the old carpet and particle

board subflooring, which had to be cut with a saw, and replaced the

subflooring w ith plywood. Duplechin testified that sawdust,

mildew, and mold were generated from the tearing-out operation, but

both he and Shaw testified that Guilbeau did not complain during

that phase of the repairs. Duplechin testified that Guilbeau

stayed in his office, which was in a separate roo m, most of that

day, but would go outside occasionally because "it was getting too

s trong, he had to get a little bit of air". 3 Guilbeau's diary

reports that "[t]he smoke, sa wdust and a strong smell ... got soThe sales receipt reflects that one three-and-one-half-gallon

can of Henry #170 adhesive was purchased; but Shaw testified that

he bought # 270, and that the receipt was in error. Henry

introduced another receipt from the same supplier, indicating that

#270 ad hesive was purchased on February 10, 1987, but Shaw

testified that there was no confusion about which adhesive was used

to make the August 1986 repairs. Shaw testified that he read the

lab el, which contained no warning about dangers to human health,

and that, if the label had contained such a warning, he would have

passed it on to Guilbeau.

Duplechin could not remember whether the carpet was installed

in the morning or afternoon; Mrs. Guilbeau testified that it was

not installed until after lunch.

- 5 - bad that it was hard for me to breath[e] and it would burn my eyes

and nose". Mrs. Guilbeau testified that he said the smell from the

repairs that day was strong, and burned his eyes and nose, but that

he was not sick. Guilbeau left the office early that afternoon,

about 4:00 or 4:30 p.m.

On August 15, Guilbeau arrived at the office around 8:00 or

8:30 a.m. His diary reports that he immediately noticed a strong,

irritating smell, had difficult y breathing, and that his eyes,

nose, throat, and lungs were badly irritated. Later that same day,

Shaw purchased a three-and-one-half-gallon can of Henry #270 carpet

adhesive from a local supplier. 4 Shaw and Duplechin began

installing the new carpet that same day, around 9:30 or 10:00 a.m. 5

Shaw spread the adhesive on the floor with a trowel, and Duplechin

rolled out the new carpet. They did not wear masks or use air

bottles. It took them an hour and a half to two and one-half hours

to install the new carpet.

Duplechin testified that while the adhesive was being used and

afterward, the windows and doors were open to ventilate the mobileGuilbeau's diary states, however, that duct tape was applied

to seal the floor air supply duct during the late morning on August

15.

- 6 - home, and that there was cross-ventilation throughout the repair

operation. Shaw testified, however, that the doors were closed

while the carpet was being installed, and that the windows and

doors were opened after the installation was completed. Duplechin

testified that Guilbeau was in the office while the carpet was

being instal led, but went in and out to show other homes to

customers.

Shaw testified that an air conditioni ng vent was under

Guilbeau's desk, and that the air conditioning system in the mobile

home recycled the air inside the mobile home. He testified that a

substantial amount of recycled air with the odor of adhesive was

coming from the vent under Guilbeau's desk and that, at Guilbeau's

req uest, he blocked the outlet in Guilbeau's office after the

repairs were completed at the end of the day that Friday. 6

Shaw and Duplechin testifie d that the smell of the adhesive

was "strong", but that it did not make them sick. Duplechin

testified that Guilbeau thought the adhesive had a strong smell,

and complained that it made him sick an d dizzy; but he did not

observe Guilbea u with watery eyes or having trouble breathing.

Shaw testified that Guilbeau started complaining when they began

installing the carpet, and put toilet tissue in his n ostrils

becau se of the smell; and that Guilbeau went in and out of the

office frequently to get fresh air because the fumes made it

difficult for him to stay in the office.Guilbeau's diary states that Travis K night noticed from his

facial expression that he was very depressed, but that he had not

noticed any depression until Knight mentioned it.

Although Guilbeau's diaries state that he left the office at

1:30 p.m., Mrs. Guilbeau testified that he stayed in the office

until 3:30 or 4:00 that day.

Guilbeau's diary reports that, after sitting at his desk for

some time, the next thing he became aware of was that it was 11:30

a.m., and he was in his truck, driving; he purchased food and drink

and returned to the mobile home office at 11:35 a.m.

- 7 - Guilbeau left the office between 3:30 and 4:30 p.m. on Friday,

to keep an appointment with some customers at the Lafayette sales

lot. 7 Mrs. Guilbeau testified that when he got home, he was

depressed, quiet, and irritable, but said that he was all right

when she asked him if something was wrong , and did not mention

odors.

Guilbeau returned to the office around 8:00 or 8:30 a.m. the

next day, Saturday, August 16. Mrs. Guilbeau testified that he

told her he could smell the odors from the mobile home from his

truck, 25 feet away. His diary states that the smell was one he

had never smelled before, and that it was "cool and burning"; that

he opened the windows and went o utside; and that he could still

smell a "slight odor" when he went back inside, but it was only the

smell of new carpet.

Guilbeau was at the office that Saturday until approximately

1:30 p.m., but had to leave becau se he was sick. 8 His diary

reports that he experienced numerous symptoms, including sweating,

numbness of his chin and mouth, burning eyes, ears, throat, and

l ungs, headache, nausea, and confusion. 9 His diary reports thatHis diary reports that the only odor he smelled was from the

new carpet.

- 8 - while driving away from the sales lot on his way to Lafayette, the

back of his head felt like someone was pushing on it, he felt

p aralyzed and it was hard for him to drive, it felt like someone

was squeezing his brain with their hands, his mouth was dry, and he

was light-headed and weak. He called Mrs. Guilbeau from Lafayette,

told her he was sick, and asked her to meet him at home. His diary

states that he ex perienced the same symptoms again while driving

home. When they arrived at home, Guilbeau told his wife that he

felt like something was squeezing his brain and that there was

"stuff" that was all over him.

Mrs. Guil beau testified that Guilbeau felt a little better

when he woke up on Sunday, but continued to complain of a headache,

weakness, dizziness, light-headedness, and aching all over, as if

he had the flu. He did not go to the office on Sunday.

The following Monday, August 18, he went to the office, but

stayed on ly three and one-half hours, because he was ill. 1 0

Guilbeau's diary reports that he arrived at the office at 8:30

a. m., left at 11:00 a.m., returned at 12:30 p.m., left again at

1:30 p.m. to go to the doctor, and did not return to the office

that day. Mrs. Guilbeau testified that he called and told her that

he had experienced the same symptoms of light-headedness, headache,

and confusion, and that he had gone to the doctor. Shaw testified

that the odor was still strong on Monday, and that Guilbeau wasAccording to Shaw, the odor continued "for a long time".

Thibodeaux testified that the smell was from the adhesive, but

that it was exactly the same smell he had encountered in new mobile

homes, except that it was much stronger.

Shaw testified, however, that Thibodeaux did not get sick.

Thibodeaux testified that Guilbeau came to his house because

Thibodeaux's telephone was out of order and Guilbeau's lawyers

wanted to reach him.

- 9 - still complaining and still had tissue in his nose. 11

Joseph Thibodeaux, the salesman who replaced Guilbeau,

testified that the odor from the adhesive "was tough

... rough ...

prett y bad", that it remained for a month or two, and that

customers complained about the smell, and had to leave the office

because their eyes were burning. 12 Thibodeaux testified that he

tried to use Guilbeau's office fo r a few days, but could not

because of the smell, so he moved to a different office; that the

smell made him sick, dizzy, and caused his eyes and nose to burn;

that he took off one afternoon, but did not go to the doctor; and

that he has been fine ever since, even though he continued to work

in the mobile home for two to three months. 13 Thibodeaux testified

that he had seen Guilbeau two nights prio r to his testimony, and

that Guilbeau had lost weight and looked sick. 14

On Monday, August 18, Guilbeau visited Dr. Clause, who had

been treating him since 1964. Guilbeau reported exposure to glue

two days earlier, and complained of headaches, light-head edness,

ti ngling sensations of the skin, and numbness in his chin. Dr.

Clause observed wheezing in his lungs and a red throat. Urine and

b lood tests were normal except for elevated cholesterol andHis diary reports that the odor was strong when he arrived,

but that after he opened the windows and doors, there was only a

slight smell, which was not as strong as it had been in the past.

- 10 - triglycerides. Dr. Clause testified that he observed no distress,

confusion, speech or learning impairments, or differences in

Guilbeau's behavior, that Guilbeau showed no signs of convulsions,

weakness, tremors, paralysis, twitching, unsteadiness, reflex

abnormalities, activity changes, or lack of coordination, and that

Guilbeau did not complain of sleep disturbance, na rcosis,

excitability, depression, irritability, restlessness, nervousness,

delirium, hallucinations, equilibrium changes, loss of appetite,

stupor, fatigue, nerve damage, or visual disorders.

Guilbeau did not go to the office on Tuesday, August 19, but

went back to work on Wednesday, the 20th. 15 Mrs. Guilbeau testified

that he did not stay a t the office all day, but went to the

hospit al; he did not call her because he could not remember her

telephone number. Guilbeau's diary states that he was at the

office from 8:30 a.m. until 4:30 p.m. At the hospital that day,

Guilbeau was examined by Dr. Sabatier, who found decreased oxygen

in Guilbeau's blood, which he attributed to smoking; but chest xrays showed no evidence of organic solvents, and no traces of such

materials were found in his blood or urine. Mrs. Guilbeau

testified that the doctors ran tests and said Guilbeau was fine,

but that he should stay away from the office for a couple of days.

She said that on Thursday and Friday, he complained about pressure

in his head, pain in a certain spot in his back, numbness in his

face, weakness, and bloating.- 11 -

Guilbeau did not return to the office until Monday, August 25.

Mrs. Guilbeau testified that he went home early because he could

n ot take the smell, which was making him sick. Guilbeau's diary

reports that he was at the office that day from 9:00 a.m. until

4:30 p.m., and that it was the last day he was able to go to work.

Mrs. Guilbeau testified that he was complaining about his stomach,

and she took him to see Dr. Fournet, who x-rayed his lu ngs and

tested his blood and urine, but found no abnormalities.

Although Dr. Four net prescribed Tagamet and gave Guilbeau a

cortisone shot, Mrs. Guilbeau testified that his condition

worsened. She stated that he would sit in his recliner like he was

in a daze, and would shake; she described a "pain attack" during

which Guilbeau got flushed, white around the mouth, and started

shaking and sweating. After the attack, he could not move his arms

and legs, and said i t was like everything inside him had quit

functioning.

Mrs. Guilbeau testified that Guilbeau was not sleeping well,

and could not find his way out of bed to the bathroom, and that his

condition continued to worsen gradually for the next two years.

She testified that his symptoms include impotence, vision problems,

pain in his ears, nose, throat, chest, an d back, sleep

disturbances, pressure in his head, penile le sions, sores in his

groin area and on his buttocks, fizzy urine with red, white, and

brown crystals and "mushroom" type things that looked like cottonHen ry's expert witness, Dr. Berger, testified that the

crystals in Guilbeau's urine were caused by high uric acid.

Mrs. Guilbeau testified that before the exposure, Guilbeau had

a bump on his foot, caused when he fell from a horse, but that the

bump went away after the exposure; and that Guilbeau gets lesions

when he smells smoke from a fireplace or when he is exposed to

chemicals, perfume, or shampoo. His diary contains a drawing of

his vein, and he reported that he could feel chemical deposits

moving through his veins, creating "a cool, itching, raw, burning

pain".

Guilbeau's diary states that Dr. Wong told him that if he

wanted to get rid of his wife, th at was the time to kill her,

because there was not a court in the land that would convict him in

the condition he was in.

- 12 - balls in it, 16 white particles in his stool, sores at his hair line,

which has started to recede, seizures, and confusion. 17

Dr. Fournet referred Gu ilbeau to Dr. Wong, a pulmonary

specialist. On September 4 and 5, Dr. Wong examined Guilbeau and

found a 30% loss of lung use. 18

On October 1, Guilbeau saw Dr. Ellithorpe at Tulane

University; he re ported that he was in his usual state of health

until August 15 when carpet was installed in his office; and that

he noticed some irritation from the carpet adhesive, which became

more noticeable in the next several days. He then saw an

internist, Dr. Nix, who referred him to a psychologist, Dr.

Friedberg, who testified for Henry at trial as an expert in

clinical psychology.

Dr. Friedberg examined Guilbeau on October 21, 1986; Guilbeau

was hospitalized at the time. Dr. Friedberg was unable to get a

complete history because Guilbeau was discharged from the hospital

before he could complete the eval uation. Dr. Friedberg- 13 -

administered the Minnesota Multiphasic Personality Inventory (MMPI)

to Guilbeau; the results and Friedberg's analysis indicated that

Guilbeau was a somaticizer, meaning that he complained of physical

ailments without physical cause. The MMPI scales for

hypochondriasis, hysterical components, conversion reactions,

depression, and psychopathic deviant (which measures impulsivity

and poor impulse control) were elevated. Friedberg thought

Guilbeau's anxiety levels were very high, and that he needed some

psychological or psychiatric t r eatment, but Guilbeau was very

resistant.

Friedberg testified that he had treated other toxic exposure

patients, and saw no parallels between those patients and Guilbeau;

however, he could not rule out that Guilbeau might have suffered

from organic brain damage with a psychological overlay. He

expressed no opinion as to whether Guilbeau's psychological

problems might be related to organic brain damage and exposure to

organic solvents.

Dr. Rees, a psychiatrist who testified at trial as an expert

witness for Henry, first examined Guilbeau on March 18, 1987, and

saw him four more times. Guilbeau reported that he had been

exposed to formaldehyde and c arpet adhesive, and complained of

feeling very ill and very weak. His symptoms included smelling

ether in the bathroom, seeing things that were not there, extreme

anxiety, anger, and complaints about at least eight parts of his

body; Dr. Rees was concerned that Guilbeau might go into an

uncontrollable rage.Mrs. Guilbeau testified that Dr. Rees insulted Guilbeau, and

that Guilbeau got upset with Dr. Rees.

Guilbeau was also seen by another psychiatrist, Dr. Covington,

who found no brain dysfunction.

- 14 - Dr. Rees testified that Guilbeau appeared to be qu ite

distressed and was very angry with every physician who had examined

him. He diagnosed a somaticization disorder. 1 9 He did not think

that exposure to toxins could have caused all the symptoms that

Guilbeau was reporting, and could not have caused Guilbeau's

unusual anger at every physician he had seen. He testified that he

was absolutely certain that Guilbeau's symptoms had nothing to do

with his exposure to adhesive, and that he was sure, as the result

of his examination, that Guilbeau did not have organi c brain

damage. 20

Dr. Black, a professor of psychiatry and neurology at Tulane

Medical Center, examined Guilbea u in 1988 or 1989 and 1990. On

both occasions, Dr. Black conducted extensive psychological

testing, and found no brain damage, but found somaticizing and

histrionic personality disorders. Dr. Black's 1989 report states

that Guilbeau's complaints are more likely than not due to a

psychiatric disorder rather than to residual effects of any alleged

toxic exposure. His 1990 report states that Guilbeau meets the

diagnostic cri teria for organic delusional syndrome, and he

testified in his deposition that "organic" does not mean an organic

brain disease or any brain dysfunction. The report concludes thatMrs. Guilbeau testified that, by that time, Guilbeau had begun

to be sickened by odors; that he has temper tantrums and loses all

control when he is exposed to chimney smoke; and that the odors of

cleaning fluid, new clothing, perfume, hair spray, deodorant, and

shampoo make him ill. A sign posted on the door of the Guilbeaus'

home states: "DO NOT ENTER If you are wearing the following[:]

perfume[,] hair spray[,] cologne[,] after shave[,] deodorants[,]

new clothing[,], powder[,] makeup[.] There is a Toxic person

living in this house who is allergic to all these above products.

With your understanding, we can help him from having severe seizures and severe multiple pain".

Amazingly, the smoke from the one and one-half to two packs of

cigarettes he smokes each day has no adverse effect on Guilbeau;

and he is not bothered if others smoke cigarettes in his presence. He uses a lighter with lighter fluid to light his cigarettes, but

has not complained about the smell from the lighter fluid.

Mrs. Guilbeau was employed by Dr. Callender at the time of the

trial; she began working for him after he began treating Guilbeau.

He testified, however, that her employment had not compromised his

medical objectivity.

- 15 - he does not feel that Guilbeau has brain damage based on available

data, but that brain damage "cannot be absolutely ruled out at this

time".

In March 1989, Guilbeau saw Dr. Callender, who had previously

seen him in December 1986. 21 Dr. Callender, who is board certified

in internal medicine, testified for the Guilbeaus at trial, as an

expert in internal medicine, neurotoxicology, and occupational

medicine. 22 Guilbeau reported to Dr. Callender that he had been

exposed to glue and forma ldehyde on August 15, 16, and 18, 1986,

and for one to two weeks thereafter. His complaints included

depression, numbness, difficulty walking, pressure in the back of

his head, difficulty thinking, difficulty breathing, bloating,

headaches, sweating, weakness, shaking, a bad taste in his mouth,

chest pain, irritation of eye s and nose, disorientation,SPECT is the acronym for single photon emission computerized

tomography, a brain imaging method which uses radiation tracers

injected into th e brain through the carotid artery to produce

computer-generated color images of blood flow.

There was testimony that "osmia" means "to smell" and "caco"

is a Greek word for "stool". Dr. Callender referred to an article

defining cacosmia as nausea, headaches, and subjective distress in

individuals exposed to neutral environmental odors.

- 16 - irritability, personality change, tingling sensations, fever,

tachycardia, shortness of breath, memory loss, ringing ears,

blurred or double vision, balance problems, sexual dysfunction, and

confusion. Except for depression, a raw throat, a little

congestion in the lungs with some wheezing, and a slightly tender

abdomen, Dr. Callender's physical examination of Guilbeau revealed

no abnormalities. Blood and urine tests were performed, as well as

an electroencephalogram (EEG) and magnetic resonance imaging (MRI),

and all of the results were normal.

A SPECT scan of Guilb eau's brain was administered by Dr.

Subraman ian on March 26, 1990. 2 3 The scan showed decreased blood

flow in the left frontal lobe, the left thalamus, and parts of the

right basal ganglia. An ultrasound scan revealed a 20-30%

obstruction of Guilbeau's left carotid artery in May 1990.

Bas ed on the SPECT scan, Guilbeau's history of exposure to

Henry's adhesive in the mobile home, and Guilbeau's

hypersensitivity to smells (cacosmia), 24 which Callender stated is

characteristic in individuals who have been exposed to neurotoxins,

especially solvents, Dr. Callender ruled out other possible causes

for Guilbeau's symptoms, and diagnosed severe chronic toxic

encephalopathy (permanent brain damage), vestibular dysfunction,Dr. Callender testified that vestibular dysfunction was

related to Guilbeau's symptoms of dizziness and panic attacks; and

that thalamic syndrome is equival ent to sensory dysfunction,

including hallucinations.

Dr. Morrow testified that she works with Dr. Callender, whom

she met in 1988, and that Dr. Callender has referred patients to

her, 18 of whom she is using in her res earch on persons who have

been exposed to solvents.

She testified that she did not test for secondary gain desire,

but that it was a possibility.

- 17 - and thalamic sensory syndrome, caused by exposure to the adhesive. 25

Guilbeau was seen by Dr. Lisa Mor row, a Pittsburgh

psychologist, in July 1989. 26 Guilbeau reported to her that he

smelled a strange, cool, burning odor emanating from an air vent

underneath his desk on Saturday, August 16, 1986; that he had pain

in his left wrist and sometimes in h is right arm and shoulders;

that smells such as perfumes burn his nose, make him weak and

dizzy, and cause pressure in his head; that he has headaches at the

same time every day; that he is often tired and does not sleep more

than two to three hou rs a night; that he has a 30% loss in his

lungs; that he has pains in his stomach and elsewhere 17-18 times

a day; and that he suffered from nervousn ess, itching, sweating,

dizziness, shaking, and hallucinations.

Dr. Morrow conducted tests, on which Guilbeau had high scores

for somatic preoccupation, depression, hysteria, and anxiety. 27

Based on her examination and the history and symptoms reported to

her by Guilbeau, Dr. Morrow opined that Guilbeau suffered a

psychological injury or psychiatric disorder as the result of hisHarper testified that Guilbeau reported a lot of symptoms that

doctors would consider t o be fairly impossible: a feeling of a

chemical flowing into his brain from his neck; a cool, numb,

itching feeling, then burning of the neck, and then a pain in his

head; and a feeling that his brain was twisting inside. Harper

testified further that Guilbeau reported that he coul d smell

chemicals coming out of his body at times, and that Mrs. Guilbeau

agreed that she could smell them, too; that he experienced swelling

in his left index finger, which traveled up into his forearm; and

that his spells could be set off by different smells or particular

television commercials.

- 18 - exposure to solvents in the adhesive. She testified that she

focused on the adhesive because of Guilbeau's sensitivity to other

odors which, based on her experience, could have been caused only

by solvent exposure.

Dr. Callender referred Guilbeau to Dr. Harper, a neurologist,

who testified at trial as an expert in pain management, neurology,

psychopharmacology, and addiction medicine. Dr. Harper testified

that Guilbeau described the repairs at the mobile home and reported

that he started having problems on August 14, 1986; he complained

of chemicals affecting his brain; pain, panic, and scare attacks;

and visual problems; and he reported a major behavioral change,

from being a successful s alesman before the exposure to being

ineffectual and depressed afterward.

Dr. Harper made no abnormal physical findings, but testified

that Guilbeau com plained of sensitivity to odors (cacosmia); he

testified that cacosmia is fairly rare, and that he ha s seen it

only in persons with a history of exposure to chemicals. Harper

te stified that Guilbeau had a variety of interesting complaints

that were complicated to interpret. 28 Harper ruled out somatization

disorder because there was a physical explanation for Guilbeau'sD r. Berger testified that he observed some malingering when

Guilbeau "made believe" his legs were paralyzed, fell off a chair,

and called it an attack or some kind of br ain seizure; that

Guilbeau tried to fake a reaction to one of the tests of his

reflexes; and that Guilbeau was trying to cover up his knowledge of

his blood sugar problem by refusing to eat before a urine test, and

then refusing to provide a urine sample the next morning after he

had eaten breakfast.

- 19 - physical complaints, and concurred in Callender's diagnosis, based

on Guilbeau's description of his history of exposure to the

adhesive, the symptoms he reported after the exposure, and the

SPECT scan of his brain, which showed abnormal areas of decreased

circulation in parts of his brain.

Henry's expert, Dr. Berger, examined Guilbeau the weekend

before the tr ial in January 1994. He testified that he found

chronic lung disease, clubbing of the fingernails (a sign of

advanced emphysema and bronchitis), gastro-intestinal disease,

bloating, poor circulation, and an irregular heart beat (a sign of

early atherosclerosis). 29 He performed neurological tests, and

testified that the results clearly showed that Guilbeau has no

brain dysfunction, but has a personality problem of using tantrums

and exaggerating his regular conditions to manipulate people.

Mrs . Guilbeau testified that, other than problems with his

sinuses and surgery for a dislocated knee, Guilbeau had no serious

health problems, seizures, or allergies prior to August 1986; and

that, before the mobile home repairs, Guilbeau behaved normally,

and she and Guilbeau were happy and had a very good relationship;

but afterward, he has been scared, depressed, aggravated, andDuplechin testified that, before he was exp osed to the

adhesive, Guilbeau was never sick and never complained, but that

after the carpet was installed, Guilbeau said that he felt dizzy at

times; and when he saw Guilbeau abo ut a year before the case was

tried in January 1994 , Guilbeau looked bad and had lost a lot of

weight. Shaw testified similarly that before the exposure,

Guilbeau was healthy, fun to be around, courteous, and hu morous;

that he was not a chronic complainer; that he had never seen him

have temper tantrums, fainting spells, or dizziness; but that when

he saw Guilbeau about two y ears before the trial, he could not

believe it was he because he looked so bad and had lost so much

weight. Thibodeaux testified that before August 1986, Guilbeau was

a top-notch salesman who had a good personality, but that afterward

he looked "like death warmed over" and did not have "the old getup-and-go". Leonard Brown, a former co-worker, testified similarly

that Guilbeau had nothing wrong with him before the exposure, but

that Guilbeau told him about trouble with his head, dizziness, and

lack of coordination after the exposure.

Dr. Clause, who prescribed the tranquilizers, testified that

he did not consider Guilbeau to be a chronically nervous or anxious

person; and saw no sign in 28 years tha t he was suffering from a

psychiatric disorder.

Mrs. Guilbeau testified that Guilbeau's cigarettes cost about

$90 per month.

- 20 - angry, and has temper tantrums. 30 There was evidence, however, that

Guilbeau attempted suicide in 1969, when he took an overdose of

sleeping pills ; he was honorably discharged from the Army after

serving two and one-half months, because of a knee problem, but the

discharge was authorized by a psychiatrist; he had complained about

nervousness and anxiety as far back as 1972, and had been

prescribed tranquilizers; 31 he is a heavy smoker, having smoked from

one and one-half to four packs of unfiltered cigarettes a day for

over 30 years, and suffers from chronic lung disease, frequent

upper respiratory infections, bronchitis, and wheezing, dating back

to 1964; 32 his blood sugar was high in 1971 and 1984; he had high

trigl ycerides, high cholesterol, and high uric acid; he had beenMrs. Guilbeau testified that Guilbeau told her that the

lightning episode felt like he was glued down, and snapped his

lower back.

The complaint was amended to add additional defendants

(manufacturers of formaldehyde products and their insurers) in

March 1988, and again in January 1990.

The Guilbeaus are represented by different counsel on appeal.

In a motion to dismiss filed in September 1993, Henry stated

that, before the fall of 1992, the Guilbeaus agreed to settle with

Henry for a nominal amount, but later reneged. At a hearing on

- 21 - treated for rectal bleeding and for prostatitis on se veral

occasions; he was treated for impotence in 1984; he suffered from

gastritis; he went to a doctor in 1976 after claiming to have been

nearly struck by lightning; 33 and in 1974 he went t o a hospital

emergency room complaining of toxic exposure to rice fumigation,

and was diagnosed as having a possible allergic reaction.

(Contrary to the dissent's suggestion, by summarizing this

evidence, aspersions are not cast on Guilbeau's sanity, nor are

improper inferences drawn.)

On August 14, 1987, the Guilbeaus filed suit against Henry and

others, alleging that, in August 1986, when the new sub-flooring

and carpet were installed in the mobile home where Guilbeau worked,

he became ill after being exposed to formaldehyde gas released from

particle board flooring, which synergistically combined with toxic

fumes emitted from carpet a d hesive manufactured by Henry. 34

Eventually all of the defendants except Henry were dismissed, and

the case finally proceeded t o trial in January 1994 on its 13th

setting, with the Guilbeaus being represented by their third set of

lawyers since suit was filed. 35December 13, 1993, the district court announced that it was going

to dismiss the case, because the Guilbeaus' attorneys were not

prepared to go to tria l, which was set for that day. The court

recalled the dismissal, however, to avoid penalizing the Guilbeaus

for their counsel's conduct. However, the court ordered one of the

Guilbeaus' attorneys to pay $11,186 to Henry as sanctions, to cover Henry's expenses in preparing for trial for the December setting.

- 22 - At trial, the district court denied Henry's motions for

judgment as a matter of law, as discussed i nfra

. In response to

interrogatories, the jury found that Henry's adhesive was defective

because it was unreasonably dangerous for normal use or because it

failed to include an adequate warning; and that the defec tive

condition of the adhesive was the legal cause of Guilbeau's

injuries. It awarded $2,000,000 to Guilbeau and $900,000 to Mrs.

Guilbeau.

The district court denied Henry's post-trial motion for

judgment as a matter of law or, in the alternative, for a new

trial; but found that the interrogatory regarding Mrs. Guilbeau's

damages was erroneous as a matter of law because, although her only

claim was for loss of consortium, i t allowed the jury to award

damages to her for many of the same types awarded her husband. The

court concluded that the maximum amount that prop erly could have

been awarded for loss of consortium was $50,000; it denied Henry's

motion for new trial on the issue of loss of consortium conditioned

on Mrs. Guilbeau's acceptance of the remittitur. The remittitur

was agreed to.- 23 - II.

Henry contends that the district court erred (1) by denying it

judgment as a matter of law, in light of the absence of scientific

evidence that the adhesive was either defective or caused

Guilbeau's alleged injury; and (2) by denying it a new trial,

because the Guilb eaus' trial counsel engaged in improper trial

conduct and made improper closing arguments to confuse and inflame

the jury. In addition to contesting the issues raised by Henry,

the Guilbeaus assert that, even if the evidence were insufficient,

the judgment should b e affirmed because the claimed erroneously

excluded evidence is sufficient; that the remittitur should be

reversed; and that the district court applied an erroneous rate and

date of accrual in awarding prejudgment interest. The Stevens firm

contends that the court erred by failing to award attorneys' fees

to it (any recovery by that firm is contingent on judgment being

awarded the Guilbeaus); the Guilbeaus respond that the firm is not

entitled to any recovery.

Before reachi ng whether judgment as a matter of law should

have been granted, whether the issue was preserved in district

court must be determined.

A.

The Guilbeaus claim that Henry failed to preserve the

sufficiency of the evidence question. They maintain that the only

ground stated by Henry in seeking judgment as a matter of law was

on "unreasonable dangerousness" only as to the failure to warn

theory of liability, and that Henry failed to challenge the- 24 -

evidence of exposure, other theories of defect, or causation.

At the conclusion of the Guilbeaus' case-in-chief, Henry moved

for judgment as a matter of law, stating:

[U]nder Federal Rule 50, I'll move for

judgmen t as a matter of law on the issues of

unreasonably dangerous [ sic ]. There's been no

showing by plaintiffs that this product is

unreasonably dangerous, and there's been no showing by these plaintiffs that this product

should have had a warning when it was

manufactured in 1986 or ... when the material

safety data sheet was promulgated in 1985;

you've heard no showing from the plaintiffs on

those issues. This has to do with a product

that was manufactured and distributed in early

1986 and used by the consum er in the eighth

month of 1986. You have no demonstration

e ither in fact or in law as to those issu es,

and under Rule 50 I move for judgment as a

matter of la w on those grounds. May I add,

Your Honor,

... that the expert which they

propounded on all of those issues, by his own

admission, only became an expert on this in

1990, four years after the product was

manufactured.

The Guilbeaus responded that there was evidence from which the

jury could find that the product was defective because of the

absence of the warning, and stated that their expert

also expressed the opinion that it should not

have been manufactured with pentachlorophenol

and that it shouldn't have had -- it could

have been m anufactured without the

pentachlorophenol, because all

pentachloroph enol did, a very dangerous,

highly dangerous chemical, was to extend the

shelf life of the produ ct. S o, we've got a

real fact issue on those two issues,

manufacturing defect which rendered the

product unreasonably dangerous and failure to

warn which rendered the product unreasonably

dangerous. We did also mention the failure to

test.

(Emphasis added.)- 25 -

The court took the motion under advisement "without prejudice

to the rights of either party to bring a similar motion at the end

o f the evidence". Although Henry's renewal of the motion is not

transcribed, a minute entry reflects that the court denied Henry's

motion, at the close of all the evidence, re-urging its motion for

judgment as a matter of law.

A motion for judgment as a matter of law "may be made at any

time before submission of the case to the jury" and "shall specify

... the law and the facts on which the moving party is entitled to

the judgment". F E D

. R. C IV

. P. 50(a)(2). The purpose of that

requirement "is to assure the res ponding party an opportunity to

cure any deficiency in that party's proof that may have been

overlooked until called to the party's attention by a late motion

for judgment". F E D

. R. C IV

. P. 50, advisory's committee's note (1991

amendment); see also MacArthur v. University of Tex. Health Center

,

45 F.3d 890, 897 (5th Cir . 1995) (Rule 50(b) "serves two basic

purposes: to enable the trial court to re-examine the sufficiency

of the evidence as a matter of law if, after verdict, the court

must address a motion for judgment as a matter of law, and to alert

the opposing party to the insufficiency of his case before being

submitted to the jury").

Although Henry's motion could (and should) have been m ore

specific, it was adequate, inter alia

, to preserve the issue of

sufficiency of the evidence of product defect. Despite the

Guilbeaus' protests to th e contrary, they were not prejudiced or

"sandbagged" by Henry's failure to articulate with more precision- 26 -

the grounds for the motion. Although the Guilbeaus characterize

this as a failure to warn case, that issue was not the most

prominent one at trial; by far, the bulk of the evidence related to

defect and causation. Review of the entire record leaves no doubt

that the most significant issues were whether Henry's product was

capable of causing, and did in fact cause, the alleged injuries.

As the court stat ed at a pre-trial hearing on December 13, 1993,

"[t]here's really one issue in this case and that's all; it's

cause". The court reiterated that fact on the eighth day of trial,

in the midst of Henry's case: "That's what this lawsuit is, to see

whether this [adhesive] or some other thing that was present that

brought this result to Mr. Guilbeau."

Moreover, as shown by his quoted comments about

pentachlorophenol in responding to the mot i on, the Guilbeaus'

counsel demonstrated that he knew exactly on what grounds the

motion was based. But, especially, this is reflected also by the

fact that earlier, during the Guilbea u s' case-in-chief, their

counsel inquired of Dr. Callender: if the jury was asked to

determine whether the product was defective ("unreasonably

dangerous"), was it because it contai ned pentachlorophenol? Dr.

Callender responded in the affirmative. The Guilbeaus' counsel was

fully aware of the bases for the motion.

B.

Because Henry preserved its challenge to t he sufficiency of

the evidence, the denial of its motion for judgment as a matter of

law is reviewed under the well-known standard from Boeing Co. v.As stated, this standard requires review of all of the

evidence that was before the jur y. Excerpts from several

depositions were read to the jury; in some instances, the excerpts

were transcribed, but i n others they were not. Counsel for both

sides apparently were oblivious to that fact; although they stated

where reading began, they frequently did not state where it stopped

before skipping to the next excerpt. In some instances, this might

preclude review of the sufficiency of the evidence. In this case,

it does not, because the entire depositions from which excerpts

were read were admitted into evidence, although not given to the

jury during their deliberations. These depositions have been

reviewed; even if read to the jury in their entirety, they do not

contain sufficient admissible evidence to support the verdict.

None of the deponents were expert witnesses, and none of the

depositions at issue contain any testimony about the decisive

factual dispute

-- pentachlorophenol and sodium pentachlorophenate.

- 27 - Shipman , 411 F.2d 365 (5th Cir. 1969) (en banc):

On motions for directed verdict and for

judgment notwithstanding the verdict the Court

should consider all of the evidence -- not

just that evidence which supports the nonmover's case -- but in the light and with all

reasonable inferences most favorable to the

party opposed to the motion. If the facts and

inferences point so strongly and

overwhelmingly in favor of one party that the

Court believes that reasonable men could not

arrive at a contrary verdict, granting of the

motions is proper. On the other hand, if

there is substantial evidence opposed to the

motions, that is, evidence of such quality and

weight that reasonable and fair-minded men in

the exercise of impartial judgment might reach

different conclusions, the motions should be

denied, and the case submitted to the jury. A

mere scintilla of evidence is insufficient to

present a question for the jury.... However,

it is the function of the jury as the

traditional fin der of the facts, and not the

Court, to weigh conflicting evidence and

inferences, and determine the credibility of

witnesses.

Id . at 374-75. 36

T his diversity case, to which Louisiana law applies,

apparently was presented to the jury solely on a strict productsThe charge was not transcribed and is not in the record.

- 28 - liability theory, both parties having agreed to omit negligence and

comparative negligence instructions. 37 This case was commenced

prior to the effective date of the Louisiana Products Liability Act

of 1988, La. Rev. Stat. §§ 9:2800.51-2800.59 (effective September

1, 1988). To recover from a manufacturer under that theory, the

applicable Louisiana law required the plaintiffs to "prove (1) that

the injury or damage resulted from the condition of the product;

(2) that the condition made the product unreasonably dangerous to

normal use; and (3) that the condition existed at the time the

product left the control of the manufacturer or supplier". B ell v.

Jet Wheel Blast , 462 So. 2d 166, 168 (La. 1985); see also Halphen

v. Johns-Manville Sales Corp. , 484 So. 2d 110, 113 (La. 1986).

"An essential element of a plaintiff's case

... is proof that

the defendant's product was unreasonably dangerous to normal use".

Halphen

, 484 So. 2d at 113. "A defective product is one that is

`unreasonably dangerous to normal use'". B loxom v. Bloxom

, 494 So.

2d 1297, 1302 (La. App. 2d Cir. 1986) (quoting Weber v. Fidelity &

Casualty Ins. Co. of N.Y.

, 25 9 La. 599, 250 So. 2d 754, 755 (La.

1971)), aff'd , 512 So.2d 839 (La. 1987). "`Normal use' is a term

of art that includes all intended uses, as well as all foreseeable

uses and misuses of the product". B loxom v. Bloxom

, 512 So. 2d

839, 843 (La. 1987). Obviously, if a product is not unreasonably

dangerous, there is no need to address causation. (The dissent

concludes that the evidence is sufficient to support a finding that

Henry's adhesive caused Guilbeau's alleged injuries, and that the- 29 -

adhesive was unreasonably dangerous because Henry failed to warn

about the danger posed by organic solvents. Because there is

insufficient evidence that the organic solvents made the adhesive

defective, it is unnecessary to address causation or the lack of a

warning. In any event, the insufficient proof of causation in

regard to the organic solvents is discussed infra .)

Henry contends that the Guilbeaus failed to prove that the

adhesive w as defective because (1) their experts' opinions were

based on the presence in the adhesive of chemicals that it did not

contain; and (2) Guilbeau's alleged reaction is idiosyncratic,

because, although the adhesive at issue has been manufactured and

sold for 20 years, no one but Guilbeau has ever claimed to have

been injured by it.

1.

Addressed first is whether the product was defective because

it contained pentachlorophenol and, then, whether organic solvents

are a basis for finding a defect.

a.

Henry asserts that the evidence is insufficient to prove that

the product was defective, because the Guilbeaus' expert witnesses'

opinions are based on the erroneous conclusion that the adhesive

was defective because it contained pentachlorophe n ol

, when it

instead contained sodium pentachlorophenate

. The Guilbeaus counter

that Henry's witnesses admitted that the product contained

pentachlorophenol. This response is facially correct; but, as

discus sed i nfra

, that evidence is insufficient to support aThe samples were picked up by The Subra Company from one of

the Guilbeaus' attorneys on September 10, 1990, approximately four

years after the incident in issue. Dr. Subra testified that her

company did not have the instrumentation to perform the analysis,

so she sent the samples to Chemtex.

On cross-examination, Shaw testified that Mrs. Guilbeau

obtained the three-and-one-half-gallon container of adhesive

pos sibly about two years after it was used in August 1986 to

install the carpet. After the noon recess, however, during which

the Guilbeaus' counsel asked Shaw abo ut the circumstances under

which the container was given to Mrs. Guilbeau, Shaw testified on

redirect that he was mistaken about the date, and that he had given

the container to Mrs. Guilbeau in September 1986; he said that he

remembered her saying that Dr. Wong wanted the container so that he

could analyze its contents. (Counsel's lunch hour discussion with

(some might say coaching of) this witness is a typical example of

the numerous problems arising out of the conduct of counsel

throughout the trial.) Mrs. Guilbeau testified that, about two

weeks after the alleged exposure, Dr. Wong asked her to bring the

container of adhesive; that Shaw gave her the container of

- 30 - conclusion that the adhesive contained pentachlorophenol.

Moreover, as also discussed infra

, the Guilbeaus failed to present

any competent evidence that pentachlorophenol is a form of sodium

pentachlorophenate, that sodium pentachlorophenate has the same

toxic properties as pentachlorophenol, or that sodium

pentachlorophenate is volatile.

Dr. Reddy, the director of the laboratory for Chemtex, which

analyzed samples of the adhesive, testified for the Guilbeaus as an

expert witness in industrial hygiene and chemistry. 38 He testified

that two samples were tested: a one-gallon metal can, and a threeand-one-half-gallon plastic container. Previous testimony by Mrs.

Guilbeau and the co-workers who installed the new carpet

established that the three-and-one-half-gallon plastic container

was the one that contained the adhesive used to install the carpet

in the mobile home. 39 The Guilbeaus' counsel admitted that the one-adhesive, and she brought it to Dr. Wong; that, after the visit,

Dr. Wong did not want the adhesive; that the container was locked

in the shed at her home until she took it to one of their lawyers,

who had it tested; and that the container was later taken to their

next lawyer. Guilbeau's diary reports that Dr. Wong examined him

on September 4 and 5, 1986.

- 31 - gallon can of adhesive was newer than the three-and-one-half-gallon

container, apparently having been purchased shortly before the

testing which was conducted in September 1990.

According to Dr. Reddy, both samples were tested for 40

different volatile organic compounds; but, pentachlorophenol was

not among the items for which the samples were tested

. Significant

amounts of fo ur of the compounds tested for were found in the

three-and-one-half-gallon container: ethylbenzene, methylene

chloride, xylene, and 2-Butanone (methyl ethyl ketone). The onegallon can contained significant amounts of those same four

compounds, as well as toluene and trichloroethane. Toluene and

trichloroethane were not detected in the three-and-one-half-gallon

container; the laboratory did not test it for toluene. Reddy

testified that all of these compounds are found in gasoline and

most petroleum distillates.

In their case-in-chief, the Guilbeaus presented the deposition

testimony of Lawrence Balling, Henry's technical director. A list

of ingredients produced by Balling at that deposition was admitted

into evidence; it shows that #270 adhesive contains 45-55% water,

2-8% petroleum distillate; 30-40% synthetic rubber/resin binder,

15-20% clay, 1-3% soap, 0.2% pentachlorophenate, a nd a trace of

ammonia. (The record does not support the dissent's statement thatDr. Callender was board certified in internal medicine. When

he first saw Guilbeau, he operated a walk-in clinic. He testified

that he became a toxicologist, and stopped holding himself out to

the public as a walk-in clinic, two or three years prior to the

January 1994 trial. Dr. Callender conceded that he was not a

chemist or industrial hygienist, and he was not tendered as an

expert in eithe r of those fields. Over Henry's objection to Dr.

Callender testifying as an expert in any field other than internal

medicine, the district court accepted him as an expert in that

field as well as neurotoxicology and occupational medicine.

"PCP" is the recognized abbreviation for phencyclidine

hydrochloride, a controlled substance which causes hallucinations

and serious psychological disturbances. R. S LOANE

, T HE S LOANE -D ORLAND

A NNOTATED M EDICAL L EGAL D ICTIONARY 545 (1987). However, plaintiffs'

exhibit 100, excerpts from a book on neurotoxicity, uses "PCP" as

the abbreviation for pentachlor ophenol; and so does an exhibit

attached to Henry's reply brief.

Perhaps b ecause he is not a chemist, Dr. Callender never

e xplained the basis for his statement that so dium

pentachlorophenate is a form of pentachlorophenol, nor did he

testify about any of the characteristics or toxic properties of

- 32 - "Henry refuse d to disclose the glue's ingredients until midway

through trial". It reflects, instead, that the Guilbeaus' trial

counsel were well aware that Henry had been willing to produce the

formula for the adhesive, with an appropriate prote ctive order,

since 1989. It was not until mid-trial that the Guilbeaus' counsel

requested the formula pursuant to a protective order.)

When the Guilbeaus' counsel first as ked their expert, Dr.

Callender, to identify the ingredients in the adhesive, he referred

to the material safety data sheet and stated correctly that it

contained "sodium pentachlorophenate". 40 Counsel then asked, "Is

that what is properly known as P.C.P., pentachlorophenol?" 4 1

Callender responded, "Well, there's

-- using initials can be

confusing, because there's

-- pentachloro

-- it's

pentachlorophenol. It's a form of pentachlorophenol". 4 2 From thatsodium pentachlorophenate.

The Guilbeaus' counsel interrupted Dr. Callender at this

point, and got him to agree that dioxin is "the chemical that was

in the Agent Orange tha t we hear about". Dr. Callender then

testified that "dioxin is probably the most toxic compound known,

and it's very often present in pentachlorophenol in amounts up to

20, 25 percent depending on the way it was produced, unless you're

dealing with a very special production where they purify it". The

Guilbeaus produced no evidence that sodium pentachlorophenate has

ever been contaminated by dioxins or any other substance; this line

of questioning is yet another example of the egregious conduct by

the Guilbeaus' trial counsel.

- 33 - point through the conclusion of his testimony on direct

examination, Dr. Callender and the Guilbeaus' counsel continued to

refer to the ingredient, inaccurately, as "pentachlorophenol".

Callender testified at length about the toxicity of

pentachlorophenol, its ca pacity to cause brain damage and other

symptoms, and the effects of synergism when p entachlorophenol is

added to solvents such as those detected in the samples of Henry's

adhesive.

When asked whether the adhesive could be used safely "in an

enclosed situation like this

... mobile home", Dr. Callender

responded that it could not, because pentachlorophenol lasts a long

time, and is very toxic; speculated that it probably also contained

dioxin, because the method used to produce pentachlorophenol at the

time usually resulted in a substantial amount of contamination from

dioxins; 43 and testified that the adhesive should have contained a

warning label including the following statement:

[T]his product contains volatile organic

compounds, chemical solvents,

pentachlorophenol and associated contaminants

such as dioxins and difurans. These chemicals

and solvents can be hazardous to human health.- 34 - The contaminants found in commercial grade

pentachlorophenols is [ sic ] considered to be

extremely toxic in very small amounts....

Dr. Callender opined that "[p]entachlorophenol is a major actor in

the toxicity of this product"; and, as noted earlier, that the

product was unreasonably dange rous and defective because it

contained pentachlorophenol:

Q. ... If the jury would be asked about ...

whether or not the product was unreasonably

d angerous as manufactured and definin g

unreasonably dangerous as being a danger

that's basically unreasonable, what would your opinion be?

A. My opinion, that it would be --

Q. With the pentachlorophenol in it.

A. With the pentachlorophenol, that the

danger would be pretty much unavoidable, but

it's unreasonable.

....

Q

.... If the jury is asked whether or not

the product is defective because it contains

-

- because it's unreasonably dangerous and

describes unr easonably dangerous as some

defect that's unreasonable and could be

eliminated and the product still have

u sability

-- I believe you said your opinio n

is that it is defective because it contains

pentachlorophenol; is that correct?

A. Right.

This testimony demonstrates undeniably that the whole thrust of the

Guilbeaus' theory was based on their i ncorrect claim that the

adh esive contained pentachlorophenol. In expressing his opinion

that th e product was unreasonably dangerous and defective, Dr.

Cal lender never mentioned organic solvents or any other

ingredients, only pentachlorophenol.- 35 -

On cross-examination, Dr. Callender testified that

pentachlorophenol was the most dangerous component of the adhesive.

Henry also cross-examined him about a 1991 published article

reporting on a study by Dr. Callender in which Guilbeau was one of

the subjects, and in which Dr. Callender described a "[o]ne year

e xposure to two levels of formaldehyde and phenol fro m

particleboard. 1986, acute high level of occupational exposure for

several workdays to strong fumes of formaldehyde, phenol, and glue

containing tetrachlorophenol, dichlorophenol, ammonia,

pentachlorophenol, methanol, petroleum distillates, ethyl benzene,

methylene chloride, xylene, methyl ethyl ketone, toluene". Dr.

Callender acknowledged that some of the chemicals listed in the

article were not in the adhesive, but were typically found in

pentachlorophenol and petroleum distillates, based on his

consultation with a toxicologist.

Henry called Balling as a witness. Balling testified that the

petroleum dis tillate, or solvent, is ordinary paint thinner,

commercially available on store shelves in 1986; and that each

gallon of adhesive contains about a cupful of solvent. He

testified that the product contains less than two tenths of one

percent of sodium pentachlorophenate, a preservative used to kill

bacteria in the water and prolong shelf life; that sodium

pentachlorophenate is not volatile and does not evaporate; and that

although the amount used in the adhesive was below the level

required to be disclosed on the material safety data sheet (MSDS)

in 1986, Henry reported both petroleum distillates and sodium- 36 -

pentachlorophenate on its 1985 MSDS.

Despite Balling's testimony, and the MSDS, which listed sodium

pentachlorophenate, not pentachlorophenol, as an ingredient, the

Guilbeaus' counsel repeatedly asked questions about

pentachlorophenol during cross-examination of Balling, at times

referring to it as "PCP". At times during cross-examination,

Balling was careful to distinguish between the two substances, and

did not allow himself to be misled by the Guilbeaus' counsel's

persistent references to pentachlorophenol.

For example, one of the first questions on cross was, "...

would you agree with me that it w as not necessary to include the

pentachlorophenol

... in order for it to be an effective

adhesive?"; Balling replied, "It would have been an effective

adhesive with out the sodium pentachlorophenate, but it would not

have good shelf life". When asked whether Henry bought laboratorypurified pentachlorophenol or the technical grade, Balling replied,

"... I couldn't tell you what grade we bought.... We bought the

ch emical sodium pentachlorophenate". And, when asked if he was

aware that pentachlorophenol was contaminated by dioxins, he

testified tha t he was "not aware of the fact that the sodium

pentachlorophenate was contam inated with dioxins". When asked

whether he was aware that pentachlorophenol becomes many times more

hazardous and much more readily absorbed if it is in the presence

of an organic solvent, he replied, "Yes, I do know th at; but the

sodium liminal, it's not a problem". When questioned about the

volatility of pentachlorophenol when dissolved in organic solvents,When asked whether Henry cond ucted any tests "to determine

what was contained in the pentachlorophenol that y'all purposely

dumped into the glue to extend its shelf life", he replied:

We used an amount that wasn't required even to

be put on an M.S.D.S., so I didn't really look

into it any furth er than that. And I'm sure

when the M.S.D.S. ... was set up, I'm sure if

there were contaminants in it, they were taken

into consideration. Maybe that's why the

figure was so low.

When the Guilbeaus' counsel asked whether a list of components,

including "ethylene benzene", methylene chloride, toluene,

"trichlorethylene", xylene, MEK, pentachlorophenol, and

styrenebutadiene, were in the product, Balling replied "yes",

without d istinguishing between the components he had previously

testified were in the product and those which he had testified were not in it. Later, counsel asked: "Now, you have also said that

pentachlorophenol was in there; right?" Balling replied, "[y]es".

- 37 - Bal ling testified that sodium pentachlorophenate was soluble in

water, and that it would remain if the water evaporated. Balling

testified unequivocally that sodium pentachlorophenate is not

volatile when dissolved in water. When questioned about

pentachlorophenol inhalation studies resulting in injuries and

deaths, Balling replied, "No, I'm not aware of that, and we put the

sodium pentachlorophenate in there".

At other times, however, Balling seemed oblivious to the

distinction, and failed to correct the Guilbeaus' counsel's

persistent references to pentachlorophenol. For example, when

asked whether "pentachlorophenol" has been found to be a hazardous

substance, he replied, "It is in the hazardous substance section of

the M.S.D.S. I am just aware that it is hazardous in the amounts

of two-tenths of a percent or over." 44- 38 -

The Guilbeaus' expert chemist, Dr. Subra, w as allowed to be

called as a rebuttal witness during the middle of the defense's

c ase-in-chief; the Guilbeaus' counsel stated that it was for the

sole purpose of rebutting testimony "on the volatil ity of PCP".

But, Dr. Subra testified solely about the v olatility of

pentachlorophenol when used as a wood preservative; she did not

testify about sodium pentachlorophen ate. She opined that

pentachlorophenol, which the Guilbeaus' counsel calle d "PCP", is

volatile, and would be more likely to go into the air if mixed with

volatile chemicals in the adhesive than by itself; and that it was

more toxic when combined with other chemicals than when considered

separately.

Considering Balling's testimony in its entirety, and in light

of all the other evidence, including the MSDS and other exhibits,

the Guilbeaus' contention that Balling admitted that

pentachlorophenol was in the product is unwarranted. True, Balling

was at times careless, failing to correct the Guilbeaus' attorney

every time counsel referred to pentachlorophenol as an ingredient

of the adhesive. And, Henry must shoulder some of the blame. Not

only did its counsel fail to object to the numerous references to

pentachlorophenol; it also did not conduct redirect examination of

Balling, in which it could have cleared up the discrepancies. (In

any event, failure to object to use of the term

"pentachlorophenol", for which the dissent asserts Henry could not

pass plain error muster, is different from relying for defect on an

ingredient that was not in the product.)- 39 -

But, the Guilbeaus' trial counsel must bear the lion's share

of the responsibility, becaus e their questions consistently were

about pentachlorophenol, even though the MSDS stated that the

product contained sodium pentachlorophenate, not pentachlorophenol,

and Balli ng had testified on direct examination that the product

contained sodium pentachlorophenate. Whether counsel acted out of

ignorance, or in an effort to mislead the jury and trick Balling

(it certainly appears to be the latter) is unknown; but it makes no

difference because, irres pective of their motive, the questions,

which assumed a fact that was not in evidence, are not evidence.

In any event, the gist of Balling's testimony is clear when

considered in the proper context : the adhesive contained sodium

pentachlorophenate. This conclusion is reinforced by the testimony

of Henry's expert witness, Dr. Berger, who was accepted as an

expert in environmental health, with sub-specialties in chemistry,

industrial hygiene, toxicology, pathology, general medicine,

psychiatry, neuroscience, and occupational medicine.

Although Dr. Berger's testimony on direct examination contains

several references to pentachlorophenol, on redirect he cleared up

a ny possible confusion about which substance was in Hen ry's

adhesive:

Q. .... Have you done some research in the

past on sodium pentachlorophenate?

A. Sure. First of all, we heard some

testimony about pentachlorophenol. That's not

in this case. It's the salt, sodium

pentachlorophenate. It's a completely

different compound. It's a non-volatile salt.

I have the MSDS from the people who made it,

their own analytical chemists, saying that- 40 - it's perfectly inert and has no vapor

pressure. And I also have some documents that

attest to the low

... volatility. In fact, it

needs steam ... to get it to volatilize. And

it's been studied by the world health

organization. And there are no reported cases

of any nerve injury, even in workers who make

it in all of North America.

Moreover, when asked whether sodium pentachlorophenate in

sufficient amounts will attack the body, he replied:

You'd have to paste it on the body. It can't

leave the ground. If you put it on the

ground , it's dead there. It's not going to

move. It doesn't volatilize. The MSDS says

it has no vapor pressure.... Your body would

have to find it and come in c ontact with it.

[If it became toxic to the body, it affects]

[t]he liver, the heart, and the kidneys. It's

not known to affect the nervous system at all,

as st udies have shown. It's never been

associated in North America or Europe with any

disease either of the central or peripheral

nervous system in workers who make it, who are the most exposed of all.... [T]hey can burn

their skin. They can get kidney problems....

Their livers tend to have elevated enzymes,

and they're monito red for that. But not in

your nervous system.... That's why this is a

puzzle to me, why in this case it's being

associated that way.

Finally, noting the failure of the Guilbeaus' chemical expert,

Dr. Subra, to distinguish between sodiu m pentachlorophenate and

pentachlorophenol in her testimony, discussed supra

, counsel asked

Dr. Berger whether the two compounds are identical; he replied, "Of

course not". Dr. Berger explained the difference as follows:

If you take sodium, which is explosive on

y ou, and chlorine gas, which will burn your

eyes, that's very different from sodium

chloride, the salt of them, which tastes good

and we're made of.... Now, in this particular

case the only product is the salt. It's a

different compound, and its manufacturers and

analytical chemists have certified to the- 41 - governmen t that it doesn't vaporize. It has

no vapor pressu re. And my knowledge, in the

industrial community, is the same, and I have

looked in texts and that's the same.

P entachlorophenol is an entirely differen t

substance.

I heard Ms. Subra's testimony, and I

wouldn't say that there's any text that agrees

with her. The conference of governmental

hygienists says it takes steam to evaporate

pentachlorophenol. And steam is 220 -- 215,

212 degrees Fahrenheit.

The compound here is inert, has no vapor

pressure, isn't volatile; that's sodium

pentachlorophenate. And after the adhesive is

laid, it diffuses in th e oil and stays there

to kill funguses, algae, snails, stuff like

that.

Dr. Berger's testimony was unr ebutted. The only evidence

offered by the Guilbeaus in an attempt to r e but it was the

testimony of Dr. Callender. Although he is not a chemist and was

not accepted as an expert witne ss in that field, he was asked

(wit hout objection) only whether "pentachlorophenol when in the

form of sodium pentachlorophenate" will evaporate. He replied that

"it does volatilize to a certain degree and in the solid form", but

then went on to testify about pentachlorophenol, not sodium

pentachlorophenate, opining that Guilbeau was exposed to

pentachlorophenol, and that the volatile organics and the

pentachlorophenol in Henry's adhesive caused Guilbeau's brain

damage.

As stated, Dr. Callender never explained the basis for his

testimony that sodium pentachlorophenate is a form of

pentachlorophenol, and never testified about the characteristics or

toxicity of sodium pentachlorophenate. (In fact, at oral argument,The dissent, in discussing the evidence of causation, relies

on Dr. Ha rper's opinion that Henry's adhesive contained organic

solvents which cause toxic encephalopathy. Although it is not

necessary to address causation, it bears notin g that Dr. Harper

conceded that, although he was told that Guilbeau was exposed to

- 42 - the Guilbeaus' counsel admitted that no one testified that sodium

pentachlorophenate would dissolve in organic solvents and produce

the pentachlorophenol radical.)

Based on the foregoing, the verdict cannot be sustained under

the Guilbeaus ' theory (claim) that the product was defective

because it contai ned pentachlorophenol. As discussed, neither

sodium pentachlorophenate nor pentachlorophenol were detected by

the laboratory that the Guilbeaus' attorneys retained to test

samples of the adhesive for 40 different volatile organic

compounds. The Guilbeaus never disputed Henry's evidence that

sodium pentachlorophenate and pentachlorophenol are different

substances, and failed to present any testimony by a qualified

expert witness that sodium pentachl orophenate is a form of

pentachlorophenol, that it has the same toxicity as

pentachlorophenol, or that the amount of it in Henry's adhesive was

capable of causing Guilbeau's alleged injuries. The dissent agrees

that "there is no evidence that t he glue contained

pentachlorophenol" and, there fore, "any testimony based upon the

presence of pentachlorophenol cannot support the verdict".

b.

The Guilbeaus contend erroneously that, irrespective of

whether the product contained pentachlorophenol, they proved that

it was defective because of organic solvents. 45 Although theyone and one-half gallons of "solvent" (not "adhesive"), he did not

know how much "solvent" was in Henry's adhesive (according to

Balling's uncontradicted testimony, each gallon of adhesive

contained only one cupful of solvent) and could not say how much of

it entered Guilbeau's brain, because such calculations are not very

helpful and can rarely be made in any m eaningful way. Henry's

adhesive was advanced by Dr. Harper as the most like ly cause of

G uilbeau's problems based on the history of exposure reported to

him by Guilbeau. Dr. Harper acknowledged that, if Guilbeau had

said nothing about the adhesive and had mentioned only exposure to

carpet, then his opinion would be that th e carpet was the most

likely cause of Guilbeau's toxic encephalopathy. None of

Guilbeau's experts' opinions are supported by any scientific

evidence based on a dose-response relationship even remotely

comparable to the facts of Guilbeau's exposure to the ingredients

in Henry's adhesive.

Although they also presented evidence abou t the toxicity of

toluene and trichloroethane, there was no evidence that those

compounds were present in the bucket of adhesive that was used to

install the carpet in the mobile home. The Guilbeaus' testing

l aboratory found those ingredients only in the one-gallon can of

adhesive, which was purchased by the Guilbeaus' counsel.

- 43 - presented some evidence about the toxicity of ethylbenzene,

methylene chloride, xylene, a nd methyl ethyl ketone, which their

testing laboratory found in the sample of adhesive to which

Guilb eau allegedly was exposed, their primary focus was on

pentachlorophenol, and the synergistic effects of it in combination

with the other ingredients. 46

As stated, Dr. Callender testified that pentachlorophenol was

a "major actor" in the toxicity of the adhesive, and that it was

unreasonably dangerous and defective because it contained

pentachlorophenol. And, in closing argument, the Guilbeaus'

counsel told the jury: "They shouldn't have had the PCP in the

product, therefore, the a nswer to Question No. 1 [whether theOf course, cl osing argument is not evidence; but, the

Guilbeaus' closing argument certainly und erscores that the true

thrust of their claim that the adhesive was defective was their

unsupported assertion that it contained pentachlorophenol.

Although their counsel referred briefly to Dr. Callender's

testimony about the toxicity of the organic solvents in the

a dhesive, and to scientific articles relied on by Dr. Callender,

documenting that long-term exposure to organic solvents can cause

brain damage and the symptoms experienced by Guilbeau, the only

chemical referred to specifically (other than one brief reference

to ammonia) was pentachlorophenol. The following is illustrative:

And as Dr. Callender told you, it was a design

defect to have the PCP in it. They could have

gotten something else to extend the shelf

life, because PCP is so dangerous that in 1984

they condemned it. And you heard the

testimony on that, and there's a whole book on

it that we'v e offered over here about PCP

[ referring, without objection, to 1993

government report which court had ruled

inadmissible] and how dangerous it is.

- 44 - product is unreasonably dangerous] is `Yes'". 47

2.

In the alternative, Henry contends that, as a matter of law,

the Guilbeaus cannot establish that t he adhesive is unreasonably

dangerous on the basis of a single adverse reaction by one

individual out of millions of applications of the same product

under similar conditions. The evidence shows that Henry has been

making adhesives since 1933. Henry's technical director, Balling,

testified that #270 adhesive had been on the ma rket for over 20

years, since it was developed in his laboratory in the 1970s, and

is similar to other adhesives on the market in 1986 and at the time

of trial.

The adhesive is made in 600-gallon mixers, the lids of which

are never closed. Although exposed to it on a daily basis, none of- 45 -

Henry's chemists or the workers who make the adhesive in plants all

over the country have ever reported any injury; and workers have

retired in good health after 20-30 years. OSHA requires no

breathing apparatus or masks for the mixer employees, and Henry's

employees have not ever worn them or any special clothing. Balling

testified that thousands of people use Henry's #270 adhesive on a

daily basis, and that millions of gallons of it have been sold, but

that no one other than Guilbeau has ever reported being injured by

it.

Henry cites Lemoine v. Aero-Mist, Inc.

, 539 So. 2d 712 (La.

App. 3d Cir. 1989), for the proposition that a product is not

unreasonably dangerous because someone has an idiosyncratic

reaction to it. Lemoine, a legal secretary, returned to her office

after lunch; while she was out, a pesticide had been sprayed in the

office. I d

. at 713. She became ill, and sued the pesticide

manufacturer, distributor, insurer, and sales representatives. I d

.

The trial court found for the defendants, and the appellate court

adopted its reasons, including that the product had been sprayed in

h omes and offices many times daily without serious effects, that

Lemoine was not present when it was sprayed, and that a large

quantity was not used. I d

. at 714. Louisiana cases were cited for

the propositions that the use of a chemical in the manufacture of

a product, which causes an extremely rare allergic reaction, is not

a defect; that there is no duty to warn against the possibility of

an unusual or rare idiosyncratic sensitivity; and that, in view of

Lemoine's rare susceptibility, it was not reasonably foreseea bleAt trial, one of the Guilbeaus' attorneys told the jury in

closing argument not to be concerned about the fact that Guilbeau

was the onl y person who had suffered an injury when the glue has

been used by thousands of people:

[Y]ou have enough evidence here

... to be able

to infer from what you've heard o n this

witness stand and from the documents in

evidence to know wh at would happen ... when

other people did complain. Look what happened

when Mrs. Guilbeau complained. She's been

trying for seven years to get the facts of

this case, to find out what was in the glue so

she could take care of her husband who is

sick. And what has happened, "No, no, no."

And now

... they've put t heir people on the

stand to tell you t here's no injury. That's

why there's no reported injuries....

Well, of course, there's not any reports

of hundreds that might have been injured

becau se they deny in every case that anybody

could be hu rt by their glue, even though the

literature says that organic solvents cause brain injury.

....

And I suspe ct, as I told you, there's been a

lot of these, because the way they have their

records, nobody gets hurt by their glue. So

they can honestly state in a deposition,

nobody has ever been reported, after thousands

of gallons of this stu ff, of being hurt. I

don't believe it. I don't believe it.

The outrageousness of such argument speaks for itself.

- 46 - that she would have been injured. Id . at 715.

The Guilbeaus understandably discount the absence of evidence

of other injuries, contending that Henry's assertions of the lack

of other complaints are false because of Thibodeaux 's testimony

that he was sickened as well when, after he took Guilbeau's place,

he occupied Guilbeau's office, and that all of his cu stomers

"experienced the same problem from this very product". 48 There was- 47 -

no evidence that Thibodeaux ever reported his "sickness" to Henry.

He testified that the smell made him sick (dizziness, burning eyes

and nose), but he did not go to the doctor, took one afternoon off,

and has felt fine ever since. Although Thibodeaux testified that

customers complained or asked about the smell and that some of them

had to go outside because of burning eyes, there is no evidence

that any of the customers complained to Henry.

Finally, in e quating the symptoms of Thibodeaux and his

customers with those expe rienced by Guilbeau, the Guilbeaus have

greatly exaggerated the evidence; there was no proof, or even any

suggestion, that Thibodeaux or any of his custo mers have been

diagnosed with chronic toxic encephalopathy or that they

experienced problems remotely similar in degree to those of which

Guilbeau complains.

The G uilbeaus do not even cite, much less attempt to

distinguish Lemoine ; they cited no authority, and research reveals

none, for imposing liability under Louisiana law on the basis of a

single injury t o a product that has been used by thousands of

people without any other reported injuries. Indeed, the authority

is to the contrary. S ee Booker v. Revlon Realistic Professional

P roducts, Inc.

, 433 So. 2d 407, 410 (La. App. 4th Cir . 1983)

(unus ual or rare idiosyncratic sensitivity on plaintiff's part

would not provide a basis for recovery or even a requirement of a

warning from manufacturer); Quiroz v. Max Factor, Inc.

, 264 So. 2d

263, 266 (La. App. 4th Cir. 1972) ( res ipsa loquitur inapplicable

where another reasonable explanation for plaintiff's scalpThe dissent considers these cases inapplicable because of its

conclusion that Guilbeau proved that he was injured because he was

exp osed to dangerous organic solvents, not because he had an

idiosyncratic reaction. But, even assuming that Guilbeau's injury

was caused by the organic solvents in the adhesive, that is not

enough to prove that the product was defective. Under Louisiana

law, a product is not defective merely because someone suffers an

idiosyncratic injury after being exposed to it. Based on the

evidence in the record, Guilbeau is the o nly person, among

thousands who were exposed to the adhesive during its manufacture

and use, who suffered such an injury. Accordingly, Guilbeau's

injury is, by definition, idiosyncratic. S ee W EBSTER ' S T HIRD N EW

I NTERNATIONAL D ICTIONARY 1123, 1124 (1986) (defining "idiosyncratic"

a s

, inter alia

, "peculiar to the individual"; defining

"idiosyncrasy" as, inter alia

, an individual hypersensitiveness, as

- 48 - irritation and hair loss was that she was unusually sensitive or

allergic to defendant's hair straightening product, and that her

rare id iosyncratic sensitivity, rather than a defect in the

product, was the sole cause of her injury); Thomas v. Gillette Co.

,

230 So. 2d 870, 876 (La. App. 3d Cir.) (possibility of allergic

reaction to manufacturer's hair relaxant was so remote and unlikely

that manufacturer was under no duty to warn users or purchasers of

such a possibility; res ipsa loquitur inapplicable be cause there

was reasonable possibility that plaintiff's reaction was result of

rare idiosyncratic sensitivity rather than product defect), w rit

ref'd

, 255 La. 809, 2 33 So. 2d 249 (1970); B lalock v. Westwood

Pharmaceuticals, Inc.

, 1990 WL 10557 at *2 (E.D. La. 1990) (product

not defective if injuries result from rare or idiosyncratic

reaction, nor is manufacturer obligated to warn against possibility

of such a reaction; summary judgment granted for manufacturer

because reaction was idiosyncratic where defendant had sold nearly

one million u nits of sunscreen without a complaint except by

plaintiff). 49 Even without considering the other problems with theto a drug or

food).

Henry maintains, as well, that ev en if Guilbeau's reaction

were no t considered idiosyncratic, no reasonable trier of fact

could conclude that the risk of injury in this case outweighed the

utility of the product. S ee Halphen v. Johns-Manville Sales Corp.

, 484 So. 2d 110, 115 (La. 1986). It is not necessary to reach this

issue.

- 49 - Guilbeaus' proof, this basis alone, on the facts in this case,

would support reversal of the jury's verdict. 50

3.

Two alternative bases are offered by the Guilbeaus for

upholding the verdict.

a.

The Guilbeaus claim that the verdict can be affirmed on the

ground that the adhesive was "unreasonably dangerous per se ". They

maintain that, if all products containing asbestos are unreasonably

dangerous per se in Louisiana, it follows that this category "must

include a product that is accompanied by absolutely no warning, and

that contains methyl ethyl ketone, xylene, methyl chloride, ethyl

benzen e, and toluene -- as well as pentachlorophenol, which has

been banned for the kind of use (in homes) to which it was put

here". This contention is rejected for several most obvious

reasons.

First, it is unclear whether the case was presented to the

jury on this theory. Second, it is patently absurd for the

G uilbeaus to compare Henry's adhesive to asbestos, when there is

uncontradicte d evidence in the record that thousands of persons

have manufactured and used the adhesive for years and have notAs discussed, Henry's product contained sodium

pentachlorophenate, not pentachlorophenol. Sodium

pentachlorophenate has not been banned, and has been authorized for

use as a preservative; and there was uncontradicted evidence that

Henry used it for that purpose in its adhes ive. S ee 21 C.F.R.

175:105(c).

In their initial br ief, the Guilbeaus also challenged the

exclusion of a Henry floor covering complaint form; but, in their

r eply brief, they conceded that the complaint "concerns pro duct

performance, and it probably was within the trial court's

discretion to exclude it".

- 50 - reported injuries to Henry. But most important, as noted s upra

,

there was no evidence that Henry's adhesive contained some of the

a bove listed ingredients, much less that the quantities of those

ingredients were sufficient to cause injury. 51

b.

Next, the Guilbeaus contend that, even if the evidence

presented to the jury is insufficient, the verdict should be upheld

based on evidence that they claim the district court excluded

improperly. They assert that the district court excluded

erroneously a 1993 report by the United States government, showing

the effec ts of ingredients in Henry's product, evidence of

evacuation of a government building, and lawsuits b y eight

individuals, all of which were offered to rebut Henry's claim that

there had been no complaints regarding its adhesive; 52 and that it

erroneously excluded labels used by Henry after the date of

Guilbeau's exposure, which represented that solvents and hazardous

ingredients had been removed from the product and admitted that

concentrated, prolonged inhal ation causes brain damage, and were

offered to imp each Balling's testimony that the product wasNor can any determinations be made about the nature of this

evidence from the questions asked by the Guilbeaus' counsel. It

appears that the Guilbeaus offered the 1993 government report

because of its statements about pentachlorophenol, which was not in

Henry's adhesive. The question regarding the evacuation of a

building does not even refer to any Henry products; and the

question about other lawsuits refers only to "Henry glue", without

specifying any particular product among the many that Henry makes.

- 51 - innocuous and to rebut Henry's assertion that there w as no

scientific basis for Guilbeau's claim.

It cannot be determined whether the district court abused its

discretion in refusing to admit the 1993 government report, the

evidence regarding evacua tion of a building, or the evidence of

other lawsuits, because the Guilbeaus did not include that evidence

in their proffers. Without knowing what ingredients were discussed

in the 1993 government report, the circumstances regarding the

evacuation of a building, and whether #270 adhesive was involved in

any of the eight lawsuits, it is impossible to determine whether

that evidence was relevant. 53 Moreover, it cannot be determined

whether this evidence would have been sufficient to sustain the

verdict.

Because Henry never claimed that it would not be feasible to

make the adhesive withou t the solvents and sodium

pentachlorophenate, its product labels used after the date of

Guilbeau's alleged exposure were properly excluded from evidence as

subsequent remedial measures. F E D

. R. E VID

. 407 (subsequent remedial

measures not admissible to show negligence or culpable conduct, but

may be admitted to prove feasibility of precautionary measures, if

controverted, or for impeachment). The labels were properlyIt is not necessary to reach any of the other issues

presented, includin g Henry's alternative contention that it is

entitled to a new trial because of the prejudicial trial tactics

and closing arguments of the Guilbeaus' attorneys; the Guilbeaus'

contentions on cross-appeal regarding remittitur, prejudgment

interest, and intervention; or the Stevens firm's appeal (any

recovery subject to recovery by Guilbeaus).

- 52 - excluded for the purpose of impeachment because they stated nothing

more than that concentrated, prolonged inhalation c auses brain

damage, which Henry did not deny; its position was that there had

been no concentrated, prolonged inhalation by Guilbeau.

Accordingly, even if excluded improperly from evidence, the

subsequent p roduct labels are not sufficient to sustain the

verdict. 54

III.

The dissent "admit[s] that the jury may have found for

Guilbeau because it mistakenly thought that Henry's glue contained

pentachloroph enol." A review of the record under the proper

standard of review, including making all reasonable inferences in

favor of the Guilbeaus, leaves no doubt that such mistaken belief

is exactly wh y the jury so found. The judgment in favor of OlanAs noted repeatedly at oral argument, and in this opinion, and

as reflected by the post-argument rejection of attempts by the

Guilbeaus' counsel to make improper filings, the conduct by the

Guilbeaus' trial counsel and appellate counsel cau ses more than

great concern. Counsel is cautioned that such conduct in the future

will result in the imposition of severe sanctions. But, this great

concern goes beyond sanctions; the greatest concern is that counsel

seems intent on w inning at any cost, notwithstanding concomitant

violations of long established rules of practice and evidence (all

designed to attempt to ensure fundamental fairness), and in

disregard, it seems, of the truth. Such tactics will not be

tolerated by this court.

S ee Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.

1969)(en banc).

- 53 - and Macklyn Guilbeau, and the judgment awarding expenses to the

intervenors, are REVERSED

, and judgment is RENDERED in favor of

Henry. 55

REVERSED and RENDERED

Emilio M. Garza, Circuit Judge, concurs in the judgment only.

REYNALDO G. GARZA, Circuit Judge, Dissenting:

I dissent. When the evidence in this case is properly

examined under the applicable standard of review, the evidence is

sufficient to support the verdict.

I.

The majority opinion sets out the correct standard of review.

This Court is to review all of the evidence in the light and with

all reasonable inferences most fa vorable to Guilbeau. 5 6 The

majority fails, however, to properly apply the proper standard of

review. The majority draws inferences in favor of Henry, even in484 So.2d 110 (La. 1986).

Gilboy v. American Tobacco Co., 582 So.2d 1263, 1264 (La.

1991).

Id.

K lem v. E.I. DuPont de Nemours Co., 19 F.3d 997, 1000 (5th

Cir. 1994).

See Klem , 19 F.3d at 1000; Antley v. Yamaha Motor Corp., 539

So.2d 696, 699-700 (La. App. 3d Cir. 1989)(citing Halphen

, 484

So.2d at 113).

K lem

, 19 F.3d at 1000. Under Louisiana law, a product is

unreasonably dangerous:

(1) if the danger inv olved in its use outweighs its

utility, it is said to be per se unreasonably dangerous;

(2) in construction or composition, if it contains an the face of evidence supporting Guilbeau, and at times ignores

crucial testimony in Guilbeau's favor. I am therefore forced to

dissent and show that the evidence supports the jury's verdict.

In this diversity case, we must apply Louisiana products

liability law as set out in Halphen v. Johns-Manville Sales Corp. 57

The Louisiana legislature overruled an aspect of H alphen when it

enacted the Louis iana Products Liability Act. 5 8 The Act did not

take effect, however, until September 1, 1988, and th e Louisiana

Supreme Court has held that it does not apply retroactively. 5 9

Because Guilbeau was exposed to Henry's product before September 1,

1988, we look to the case law tha t developed before the Act came

into effect. 60

Under Halphen

, Guilbeau must show (1) he was injured; (2) his

injury was caused by a condition in Henry's glue; (3) the condition

made the glue unreasonably dangerous for normal use; and (4) the

condition existed at the time the glue left Henry's control. 6 1

There are several categories of unreasonably dangerous products. 62unintended abnormality or condition that renders it more

dangerous than it is designed to be; (3) for lack of

warning, if the manufacturer failed to adequately warn of

the dangers that attend its use; or (4) by design, if

safer alternative products were available or the product

could have been designed in a less dangerous manner.

Id. at 1000-1001.

See Halphen , 484 So.2d at 115.

See id.

- 55 - One of these categories is products that are unreasonably dangerous

because of a failure to warn. Henry is required to provide an

a dequate warning of any danger inherent in the normal use of the

glue that is not within the knowledge of or obvious to the ordinary

user. 63 If Henry fails to adequately warn about a danger related

to the way the glue is designed, the glue is unreasonably

dangerous. 64

II.

When the evidence is reviewed in the light most favorable to

Guilbeau, it is sufficient to satisfy all the elements of a

products liability cause of action. First, Guilbeau was injured.

He was sickened after being exposed to Henry's glue. Second, his

injury was caused by a condition in Henry's glue; namely, the

presence of organic solvents. Third, Henry's failure to warn about

the prese nce of organic solvents made the glue unreasonably

dangerous. Finally, the organic solvents were present when the

glue left Henry's control.

A.G uilbeau's attorney asked Rollin Duplechin, one of Guilbeau's

co-workers, "But before the time that ya'll put the glue down, had

you ever seen Mr. Guilbeau appearing to be sick in any way?"

Duplechin replied, "No, never was sick. Never complained to us, at

leas[t] until they start[ed] putting do wn the glue." Similarly,

Jonathan Shaw, who also worked wi th Guilbeau, testified that

Guilbeau did not complain about odors or smells before the

exposure, and that he was "healthy and fun to be around" before he

was exposed the Henry's glue.

- 56 - The evidence is sufficient to support a finding that Guilbeau

was injured after being exposed to Henry's glue. Before Guilbeau

was exposed to Henry's glue, he was a relatively healthy and welladjusted man. His wife testified that he was not a sickly man, but

was "heal thy . . . a robust man. . . . and there was not a thing

wrong with him." His co-workers also testified that he was "never

sick," was "healthy," and that he "never complained . . . at

leas[t] until they start[ed] putting down the glue." 65 Granted, his

h ealth was not perfect. He smoked, had a few previous upper

respiratory infection s, and had bouts with high blood pressure.

But his health was dramatically better before he was exposed to

Henry's glue than after his exposure.

He was also psychologically well-adjusted. His wife and coworkers testified that, before he was exposed to Henry's glue, he

was a happy man, a wonderful husband and an extremely successful

salesman. Although he did attempt suicide after his wife refused

his initial marriage proposal in 1969, seventeen years be fore he

was exposed to Henry's glue—his wife testified that he did not do

"any other thing like that" after 1969.

The majority tries to cast aspersions on Guilbeau's sanity by

pointing out that his honorable discharge from the Army, which- 57 -

stated that he was discharged for having a knee problem, was signed

by a psychiatrist. However, his wife testified that he hurt his

knee before he enlisted in the Army, and then dislocated that same

knee while in the service when he sli d down an embankment. When

viewed in the light most favorable to the Guilbeau, this evidence

indicates that he was discharged because he had a knee problem.

Despite the requirement that all inferences be drawn in Guilbeau's

favor, however, the majority infers from the fact that a

psychiatrist signed the discharge that Guilbeau was a ctually

discharged for other reasons. Such an inference is simply not

allowable under the proper standard of review.

The majority attempts to further question Guilbeau's mental

stability by pointing out that Dr. Clause prescribed tranquilizers

to Guilbeau for anxiety in the early-to-mid 1970's. Dr. Clause

testified, however, that the last time he prescribed anxiety

medication to Guilbeau was May 27, 1977, nine years before his

exposure to Henry's glue. Dr. Clause also testified that Guilbeau

was not chronically nervous or anxious, and that during 28 years of

treatment he saw no sign that Guilbeau was suffering from a

psychiatric d isorder. Dr. Clause's opinion was collaborated by

Guilbeau's wife and co-workers' testimony that, before the

exposure, Guilbeau did not suffer from the "t emper tantrums" and

other psychological problems that he suffered after he was exposed

to Henry's glue. Finally, Dr. Clause testified that Guilbeau never

complained to him about a problem he did not have.

After Guilbeau was exposed to Henry's glue on August 15, 16A condition in which innocuous smells cause severe nausea.

Dr. Harper testified that cacosmia is an indication of exposure to

organic solvents.

- 58 - and 18, 1986, both his physical and mental health drastically

deteriorated. He began to suffer from equilibrium problems,

impaire d judgment, inability to control his emotions, panic

attacks, cacosmia, 66 and seizures. All of the witnesses—including

Dr. Clause, who was calle d by the defense—who observed Guilbeau

both before and after he was exposed to Henry's glue agree that he

was dramatically sickened immediately after the exposure.

In short, the evidence is sufficient to show that Guilbeau

exhibited many symptoms after being exposed to Henry's glue that he

did not exhibit before exposure. Although Guilbeau may not have

been in perfect health before he was exposed to Henry's glue, the

evide nce definitely supports a finding that he was better before

exposure than afterwards.

B.

Having found that the evidence is sufficient to show that

Guilbeau became sick after being exposed to Henry's glue, We now

turn to the next question: Whether the evidence supports a finding

that Guilbeau's sickness was caused by a condition in Henry's glue.

Our review of the record shows that the evidence is sufficient to

support such a finding. Specifically, there is sufficient evidence

to show that Guilbeau was injured because he was exposed to organic

solvents that were present in Henry's glue.

First, causation is supported by common sense inferences from- 59 -

the lay testimony. Guilbeau's wife and co-workers testified that

he became sickened after being exposed to the glue. That testimony

supports a common sen se inference that the glue caused his

sickness.

Second, Dr. Harper testified that Guilbeau's sickness was most

likely caused by exposure to organic solvents contained in Henry's

glue. Dr. Harper was a board certified neurologist, who was also

trained in pharmacology and psychopharmacology, and who had broad

experience with the toxic effe cts of various substances. Dr.

Harper testified that Guilbeau suffered from toxic encephalopathy,

a form of brain damage, and that exposure to Henry's glue was the

most likely cause of Guilbeau's brain damage. Dr. Harper's opinion

was based on several facts. First, he based it on the fact that

Guilbeau's health and behavior changed dras tically after he was

exposed to Henry's glue. Second, he based it on Guilbeau's

cacosmia. Dr. Harper testified that cacosmia is caused by exposure

to chemicals, and that he ha d never seen a patient who suffered

from cacosmia that was not exposed to chemicals. He also based his

opinion on a SPECT scan, which showed decreased blood flow in

portions of Guilbeau's brain in a pattern that was consistent with

toxic encephalopathy. Finally, he based his opinion on the fact

that Henry's glue contai ned several organic solvents, including

ethylbenzene, methylene chloride, xylene, methyl ethyl ketone and

toluene, all of which cause toxic e ncephalopathy. Notably, Dr.

Harper did not ba se his opinion upon the presence of

pentachlorophenol. In fact, he never mentioned the wordD r. Re ddy explained that the reason that the second sample

contained organic solvents that the first sample did not was that

the plastic can from which the first sample had been taken had been

opened. Volatile organic solvents like toluene and trichloroethane

easily evaporate from an open can. Thus, the jury could have

reasonably inferred that the glue to which Henry was exposed

contained toluene and trichloroethane, but that those solvents had

evaporated out of the plastic can from which the first sample had

been taken before Guilbeau had it tested.

- 60 - pentachlorophenol during his testimony. Dr. Harper also testified

that Guilbeau 's injury was not caused by smoking, sawdust or

formaldehyde, and that it was not a spontaneous psychological

experience.

In summary, Dr. Harper based his opinion on the fact that

Henry's glue cont ained chemicals that cause brain damage, that

Guilbeau was exposed to the glue, and that shortly thereafter he

w ent from being relatively healthy to suffering from toxi c

encephalopathy. This basis is sufficient to support his testimony

that the organic solvents in Henry's glue caused Guilbeau's

sickness.

Guilbeau also presente d the testimony of Dr. Reddy, a Ph.D.

chemist. Dr. Reddy's testimony establishes that Henry's glue

contains the organic solvents that Dr. Harper said caused

Gui lbeau's sickness. Henry refused to disclose the glue's

ingredients until midway through trial, so Guilbeau was forced to

have Dr. Reddy analyze two samples of Henry's glue to determine

which organic solvents were present. In one sample, Dr. Reddy

found significant amounts of ethylbenzene, methylene chloride,

xylene and me thyl ethyl ketone. In the other sample, Dr. Reddy

found those four solvents, as well as toluene and trichloroethane. 67- 61 -

These are the same organic solvents that Dr. Harper testified were

the most likely cause of Guilbeau's toxic encephalopathy.

Dr. Callender also te stified that Guilbeau was sickened by

exposure to Henry's glue. Dr. Callender is board certified in

internal medicine, and specializes in neurotoxicology—the study of

how chemicals affect the nervous system, including the brain. He

testified that Guilbeau suffered from toxic encephalopathy, which

was caused by exposure to compounds contained in Henry's glue. He

based his opinions on several factors. First, Guilbeau exhibited

numerous symptoms after being exposed to Henry's glue that he did

not exhibit before exposure. Second, chemicals that cause toxic

encephalopathy, including organic solvents, were present in Henry's

glue. Third, the symptoms Guilbeau suffered were consistent with

"acute organi c solvent exposure syndrome," a cluster of symptoms

associated with exposure to organic solvents. Fourth, the SPECT

scan showed areas of decreased brain function, which was consistent

with toxic encephalopathy. Finally, Dr. Callender eliminated all

possible confounders; that is, he determined that Gui lbeau's

symptoms were not caused by other factors.

Dr. Callender's opinions are limited, however, by his mistaken

belief that Henry's glue contained pentachlorophenol. Dr.

Callender's mistaken belief arose from his misreading of the

Material Safety Data Sheet (MSDS) for Henry's glue. The MSDS

indicated that Henry's glue contained sodium pentachlorophenate.

Dr. Callender mistakenly believed that sodium pentachlorophenate

was a form of pentachlorophenol. Dr. Callender went on to describe- 62 -

in great detail the dangerous nature of pentachlorophenol, and how

pentachlorophenol, in concert with the o rganic solvents, caused

Guilbeau's injuries.

Henry's counsel did nothing to clear up Dr. Callender's

confusion. He did not object to Dr. Callender's testimony

regarding pe ntachlorophenol on the ground that there was no

evidence that Henry's glue contained pentachlorophenol, nor did he

point out the difference between pentachlorophenol a n d sodium

pentachlorophenate during cross-examination. Further, both Henry's

counsel and Henry's expert witnesses referred to the sodium

pentachlorophenate in the glue as pentachlorophenol on num erous

occasions. In fact, Henry's counsel did not bring out the fact

that the glue did not contain pentachlorophenol until the last day

of trial, when Dr. Berger, one of Henry's experts, pointed out the

difference between the two compounds and testifie d that the glue

did not contain pentachlorophenol.

Despite the fact that Henry did not object to Gui lbeau's

experts' testimony regarding pentachlorophenol, the fact remains

that there is no evidence that the glue contained

pentachlorophenol. Therefore, any testimony based upon the

presence of pentachlorophenol cannot support the verdict. The fact

that Henry's glue did not contain pentachloro phenol does not end

our inquiry, however. This Court must still examine the record to

see i f there is sufficient testimony that is not based on the

presence of pentachlorophenol to support the verdict.

When the record is reviewed in the light most favorable to- 63 -

Guilbeau, it does contain sufficient evidence for a reasonable

person to find that organic solvents in the glue caused Guilbeau's

sickness. A reasonable juror would have believed Dr. Berger's

statement that the glue did not contain pentachlorophenol,

especially since Henry's counsel emphasiz ed during his closing

argument that the glue did not contain pentac hlorophenol. There

was evidence that the glue contained organic solvents, however.

Based on the testimony of Dr. Callender and Dr. Harper, a

reasonable juror could find that Guilbeau's injuries were caused by

those organic solvents.

Of course, Henry presented evidence that Guilbeau's injuries

were not caused by the glue. Dr. Friedberg testified that Guilbeau

suffered from a somatization disorder, although he could not rule

out the possibility that Guilbeau's problems were caused by

exposure to organic solvents. Dr. Rees and Dr. Black also opined

that Guilbeau was a somatisizer. Further, they testified that

Guilbeau did not suffer from brain damage, and that his problems

were not caused by exposure to organic solvents. Finally, Henry

presented the testimony of Dr. Berger, who testified that Guilbeau

suffered from lung disease and person ality problems, but was not

injured b y exposure to Henry's glue. Henry's experts' testimony

was inconsistent with Guilbeau's experts' tes timony. Guilbeau's

experts testified that his problems were caused by exposure to

organic solvents, while Henry's experts testified that his problems

were psychological. The resolution of this conflict, however, was

strictly within the province of the jury. The jury apparently- 64 -

found Guilbeau's experts more credible, and believed them instead

of Henry's experts. This Court does not have the power to overturn

such a credibility determination. Thus, the testimony of

Guilbeau's experts, bolstered by common sense inferences from lay

testimony, is sufficient evidence upon which a reasonable juror

could find that Guilbeau was sickened as a result of being exposed

to Henry's glue.

C.

The evidence was sufficient to establish that Henry's glue was

unreasonably dangerous because Henry failed to warn about the

danger posed by organic solvents. It is undisputed that Henry did

not include a warning about the danger of organic solvents on the

glue's label. Dr. Callender testified that the glue should have

contained a warning. His opinion was not contingent on the

presence of pentachlorophenol in the glue. In fact, he testified

that, even if the glue did not contain pentachlorophenol, it was

still unreasonably dangerous because it did not warn about the

dangerous organic solvents. Specifically, Dr. Callender testified

as follows:

[Mr. Musselwhite] Now, if for any reason the defendants

were to contend . . . that pentachlorophenol was not in

the product[,]

. . . would the warning be pretty much the

same except you'd just eliminate the refer ence to

pentachlorophenol:

[Dr. Callender] Yes.

[Mr. Musselwhite] So you would still warn as to these

other chemicals that showed up on the tests run by Dr.

Reddy and Dr. Subra, still warn as to those chemicals in

the same way you've warned here?539 So.2d 712 (La. App. 3d Cir. 1989).

See, e.g. , Booker v. Revlon Realistic Professional Products,

Inc., 433 So.2d 407, 410 (La. App. 4th Cir. 1983); Rhodes v. Max

Factor, Inc., 264 So.2d 263, 266 (La. App. 4th Cir. 1972).

- 65 - [Dr. Callender] Right.

[Mr. Musselwhite] Is that correct? And the failure to

do so would render the label ina dequate; is that your

opinion?

[Dr. Callender] Right.

The evidence supports Dr. Callender's testimony. Dr. Reddy found

that Henry's glue contained significant amounts of organic

solvents. Dr. Callender's testimony established that the dangers

of organic solvents were well estab lished in the scientific

literature when Henry manufactured the glue. Thus, there is a

sufficient foundation for Dr. Callender's opinion testimony t hat

the glue should have warned about the dangers of organic solvents.

Dr. Callender's opinion testimony, in turn, was sufficient evidence

for a reasonable juror to find that Henry's glue was unreasonably

dangerous because of Henry's failure to warn.

The majority contends that, assuming Guilbeau was sickened by

Henry's glue, the product was not unreasonably dangerous because,

out of the millions of applications of Henry's glue, Guilbeau was

t he only person to have an adverse reaction. In making this

contention, the majority cites L emoine v. Aero-Mist, Inc.

, 68 a

Louisiana case that held that a product is not unreasonably

dangerous because a person has an idiosyncratic re action to it.

Lemoine

, as well as the line of cases upon which its holding is

based, 69 is e asily distinguishable from Guilbeau's case. InLemoine , 539 So.2d at 713.

Id. at 713-14.

S ee, e.g.

, Booker

, 433 So.2d at 410 (holding tha t plaintiff

could not recover when the trial court found that she either

misapplied the product or suffere d an idiosyncratic allergic

reaction to it); Rhodes , 264 So.2d at 266 (Holding that plaintiff

could not recover for injury caused by her idiosyncratic allergic

reaction to a product).

- 66 - Lemoine

, a woman suffered an alle rgic reaction after she was

exposed to an insecticide manufactured by Aero-Mist, Inc. 70 The

trial court found that her allergic reaction was very rare, and

held that a manufacturer has no duty to warn against the

possibility of a rare or idiosyncratic sensitivity. 71 The other

cases cited by the majority are to the same effect. 72

The evidence in this case, however, supports a findin g that

G uilbeau did not have an idiosyncratic reaction. Guilbeau

presented evidence that the glue contained organic solvents, which

are known to be dangerous. He also presented evidence that he was

injured because he was exposed to dangerous organic solvents, not

because he had an idiosyncratic allergic reaction. His experts

testified that organic solvents are simply dangerous, not that they

cause an allergic reaction in a few people.

The majority simply misconstrues Louisiana law. A plaintiff

does not have to prove that other people have been injured by a

product in order to show that the product was unreasonably

dangerous. He simply has to show that the product—either because

o f inherent dangerousness or because or an inadequate warning—isE xtremely rare or idiosyncratic allergic reactions are not

reasonably foreseeable. Thus, there is no duty to warn about them.

- 67 - unreasonably dangerous to a reasonably foreseeable user. 73 Because

Guilbeau showed that the presence of organic solvents made the glue

unreasonably dangerous for normal use because of Henry's failure to

provide an adequate warning, rather than showing that he had a rare

allergic reaction to the glue, the evidence is sufficient to uphold

the verdict.

D.

The evidence was sufficient to show that the glue contained

organic solvents when it left Henry's control. Dr. Reddy testified

that a th ree-and-a-half gallon plastic can of Henry's glue

contained four organic solvents: ethylbenzene, methylene chloride,

xylene and methyl ethyl ketone. Dr. Reddy also tested a metal can

of Henry's glue, which was purchased after Guilbeau's exposure, and

found those four solvents, as well as toluene and trichloroethane.

Dr. Reddy explained that the reason that the metal can contained

organic solvents that the plastic can did not was that the plastic

can had been opened. Volatile organic solvents like toluene and

trichloroethane easily evaporate from an open can. Thus, the jury

could have reasonably inferred that the glue to which Henry was

exposed co n tained toluene and trichloroethane, but that those

solvents had evaporated out of the plastic can before Guilbeau had

it tested. Dr. Reddy's analysis of Henry's glue, especially that

of the unopened can bought off the shelf, is sufficient evidence toS ee McCann v. Texas City Refining, Inc., 984 F.2d 667, 673

(5th Cir. 1993)(holding that issues raised for the first time on appeal are reviewed only for plain error).

- 68 - support the jury's finding that the glue contained organic solvents

when it left Henry's control.

III.

Because , as we have shown, the record contains sufficient

evidence to uphold the verdict, I dissent. Although I admit that

the jury may have found for Guilbeau because it mistakenly thought

that Henry's glue contained pentachlorophenol, there is sufficient

evidence to support the inference—which, like all inf erences

supporting the verdict, must be m ade—that the jury based its

verdict on the presence of organic solvents rather than on the

mistaken belief that the glue contained pentachlorophenol.

Further, Henry neither objected to Guilbeau's evidence

regarding pentachlorophenol nor cross-examined Guilbeau's experts

on the ground that the glue did not contain pentachlorophenol. In

fact, Henry did not e ven point out that the glue did not contain

pentachlorophenol until the last day of trial. The first time that

Henry objected to Guilbeau's experts use of the terms

"pentachlorophenol" or "PCP" was in its motion for a new trial.

Because Henry failed to even object to Guilbeau's presentation of

evidence regarding pentachlorophenol during trial, I do not think

that the prejudice that Henry suffered because the jury was told

about pentachlorophenol is the kind of plain error that would

mandate a new trial. 74 Further, even if we found that the jury was- 69 -

affected by evidence of pentachlorophenol that should not have been

before it, the worst that this Court should do would be to remand

this case for a new trial, not to reverse and render.

For the reasons stated above, I would AFFIRM the district

court.