United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 01-2246

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Troy Mattis; Patricia Mattis, *

*

 Appellees, *

*

v. *

*

Carlon Electrical Products; Lamson *

and Sessions; Oatey Company, *

*

 Appellants. *

Appeals from the United States

District Court for the

District of South Dakota.

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No. 01-2450

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Troy Mattis; Patricia Mattis, *

*

 Appellants, *

*

v. *

*

Carlon Electrical Products; Lamson *

and Sessions; Oatey Company, *

*

 Appellees. *
1

 Mattis was a member of the National Guard and 1987 and 1988, he underwent

rigorous physical exams for that position. Those exams revealed no sign of

respiratory disease. In addition, in 1994, his wife sought to open a day care center,

so pursuant to state licensing rules, Mattis was tested for tuberculosis. He tested

negative and an x-ray of his chest demonstrated that he had “no sign of acute or

chronic pulmonary disease.” Appellee’s Appendix at 6. Mattis does not smoke or

chew tobacco. 

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Submitted: May 16, 2002

Filed: July 10, 2002 

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Before LOKEN, HEANEY, and MURPHY, Circuit Judges.

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HEANEY, Circuit Judge.

Following a jury verdict in favor of appellee Troy Mattis, appellants Carlon

Electrical Products, Lamson and Sessions, and Oatey Co. challenge the district

court’s evidentiary rulings and its refusal to grant judgment as a matter of law in

appellants’ favor. We affirm.

I. Background

In the summer of 1995, Mattis was 25 years old and was working as an

apprentice electrician. At the beginning of the summer, he had a well-documented

history of good health.1

 On July 13, Mattis worked on a project near Wagner, South

Dakota and used Carlon All Weather Quick Set Cement (“Carlon cement”). Carlon

cement is manufactured by Oatey Co., and it is labeled and sold by Carlon Electrical

Products, a business unit of Lamson and Sessions. Carlon cement includes six
2

 The label stated: “Danger: extremely flammable • harmful or fatal if

swallowed • vapor harmful • may irritate eyes and skin • may be absorbed through the

skin. Vapors may cause flash fires. Read precaution on back label.” With regard to

vapors, the back of the label stated: “Vapors may ignite explosively. Prevent build-up

of vapors – open all windows and doors – use only with cross-ventilation. . . . Close

container after use. . . . If inhaled get fresh air. If ill feelings persist, seek medical

attention.” Appellants’ Addendum at 21. Mattis testified that he avoided contact

between the product and his skin in accordance with the label’s warning.

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ingredients, four of which are respiratory irritants: tetrahydrofuran, acetone,

cyclohexanone, and methyl ethyl ketone. 

 On July 13, 1995, Mattis spent most of the day outside laying ten foot sections

of three-quarter inch polyvinyl chloride (pvc) pipe in a trench that was six inches

wide and eighteen inches deep. The temperature was 109 degrees. After laying the

sections of pipe, he worked on his hands and knees using Carlon cement to connect

the sections. Before performing this work, Mattis read the safety warnings on the

label of the Carlon cement.2

 When Mattis was not using the glue, he put the lid back

on the can according to his supervisor’s instructions. The can sat in the sun when not

in use. To reopen the can of cement, Mattis held it close to his chest and opened the

lid. As he did this, the can made sizzling sounds, like a can of soda-pop. He testified

that he opened the can at least ten to twelve times during the course of the day.

On the morning of July 14, 1995, Mattis woke up with a severe headache,

nausea, vomiting, and soreness in his chest. Nevertheless, he returned to work and

again used the Carlon cement. On Saturday morning, July 15, Mattis awoke with

another severe headache, continued nausea, and tightness in his chest. His symptoms

were worsening, and it was difficult for him to breathe. On Sunday, he went to a

doctor and was treated for dehydration and released. He called in sick on Monday

and went to see another doctor on Tuesday. His physician, Dr. Weber, admitted him

to the hospital, where he stayed for six days. X-rays of his chest were taken on July
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18, 1995, and again on July 19, 1995. The board certified radiologist, Dr. Frank

Messner, who read the x-ray concluded:

The patient demonstrates a rather extensive bilateral infiltrate, which has

a somewhat nodular component to it. . . . The distribution would

suggest some type of unusual organism or cause. . . . IMPRESSION.

Fairly extensive bilateral infiltrates suspicious for unusual pneumonia

or some type of response to a noxious agent.

Appellee’s App. at 4. Dr. Weber diagnosed Mattis with bilateral pneumonia, reactive

airways disease, and exposure to PVC glue fumes, among other things. Dr. Weber

referred Mattis to Dr. Hansen, a board certified pulmonologist. She first met with

Mattis on August 18, 1995. At that time, she performed a differential diagnosis using

a specific medical methodology for reactive airways dysfunction syndrome (RADS).

After performing the differential diagnosis, Dr. Hansen diagnosed Mattis with RADS

and concluded that it was caused by his inhalation of the Carlon cement fumes. 

Since his release from the hospital, Mattis has experienced persistent

intermittent symptoms and some decline in his lung function. He must avoid

exposure to irritants such as smoke, dust, chemical odors, and extremes in

temperatures. Because of his health problems and work restrictions, he gave up

working as an electrician. 

Mattis and his wife brought a cause of action in federal court against Oatey,

Carlon, and Lamson and Sessions claiming negligence, strict liability based on failure

to warn, and negligence per se. The jury returned a verdict in favor of Mattis in the

amount of $600,000 and in favor of his wife for $300,000 on her loss of consortium

claim. Following the verdict, the defendants filed a renewed motion for judgment as

a matter of law and a motion for a new trial. The district court denied these motions

and Carlon, Oatey, and Lamson and Sessions appeal. 
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II. Discussion

Appellants raise four issues on appeal. They contend that the district court

erred in refusing to grant judgment as a matter of law in their favor because: (1)

Mattis failed to establish causation; and (2) he failed to establish liability on the

failure to warn claim. Appellants also maintain that the district court erred in

excluding the results of field studies Oatey conducted after Mattis’s injury, and that

the court erred in admitting reports of health problems caused by Carlon cement. 

A. Causation

We first address appellants’ argument that the district court should have

granted judgment as a matter of law in their favor because the expert testimony

offered by Mattis failed to prove that his exposure to Carlon cement caused his

illness. We review de novo the district court’s denial of a motion for judgment as a

matter of law and view the facts in the light most favorable to the nonmoving party.

Cardenas v. AT & T Corp., 245 F.3d 994, 998 (8th Cir. 2000) (citation omitted).

Judgment as a matter of law is only appropriate when no reasonable jury could have

found for the nonmoving party. Id. (citation omitted).

“To prove causation in a toxic tort case, a plaintiff must show both that the

alleged toxin is capable of causing injuries like that suffered by the plaintiff in human

beings subjected to the same level of exposure as the plaintiff, and that the toxin was

the cause of the plaintiff's injury.” Bonner v. ISP Techs., 259 F.3d 924, 928 (8th Cir.

2001) (citing Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1106 (8th Cir. 1996)).

To meet his burden of proving causation, Mattis presented the testimony of two

expert witnesses, Dr. Hansen, his treating pulmonologist, and Roger Wabeke, an

industrial hygienist. The district court found that this testimony, in addition to the

testimony by appellants’ expert, Dr. Kapp, was sufficient for a reasonable jury to find

that Mattis’s exposure to the organic solvents in Carlon cement was capable of
3

 Wabeke testified that he has used this methodology for twenty-five years and

that it is a well-accepted method among industrial hygienists. 

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causing RADS and that exposure to those solvents did, in fact, cause his illness. We

agree. Dr. Kapp admitted that the organic solvents in Carlon cement were capable

of causing RADS at high exposure levels. Wabeke’s testimony established that

Mattis was exposed to dangerous levels of those organic solvents, and Dr. Hansen’s

testimony provided evidence that Mattis’s exposure to the organic solvents in the

cement caused him to develop RADS. 

Appellants argue, however, that Dr. Hansen’s and Wabeke’s testimony was

insufficient as a matter of law to establish causation. They fault Wabeke’s testimony

because he could not determine Mattis’s exact exposure level. To prove exposure

levels, plaintiffs need not produce a “‘mathematically precise table equating levels

of exposure with levels of harm.’” Bednar v. Bassett Furniture Mfg. Co., 147 F.3d

737, 740 (8th Cir. 1998) (quoting Wright, 91 F.3d at 1107). Rather, a plaintiff need

only make a threshold showing that he or she was exposed to toxic levels known to

cause the type of injuries he or she suffered. Id. Wabeke testified that experts have

known for a long time that the organic solvents in Carlon cement are respiratory

irritants capable of injuring respiratory mucous membranes in the nostrils, throat,

trachea, and lungs. In addition, Wabeke used a vapor concentration test to determine

whether Mattis was exposed to a dangerous level of fumes. To perform the test,3

 he

heated a can of Carlon cement to 112 degrees and cut PVC pipe into five inch

sections. He then transferred the pipe and the cement to an air sampling chamber and

spread the cement on the pipe. The test showed that the solvent vapors accumulated

rapidly at extreme concentrations, far in excess of safe exposure levels. At trial,

Wabeke noted that Mattis’s exposure levels would have been higher than the levels

in his test because the hissing and sizzling sounds the can made indicated that it was

hotter than 112 degrees. This evidence is admissible and created a question of fact
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for the jury about whether Mattis was exposed to an unsafe level of fumes, capable

of causing respiratory problems.

Next, appellants argue that Dr. Hansen’s testimony was legally insufficient. 

We disagree. A medical opinion based upon a proper differential diagnosis is

sufficiently reliable to satisfy Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,

593-94 (1993). Turner v. Iowa Fire Equip., Co., 229 F.3d 1202, 1208 (8th Cir. 2000).

Dr. Hansen performed a valid differential diagnosis to determine that Mattis’s

exposure to the cement caused his RADS. Cf. id. (noting that a proper differential

diagnosis is one that identifies the cause of a medical condition by eliminating the

likely causes until the most probable cause is isolated). While treating Mattis, Dr.

Hansen ruled out other possible causes of Mattis’s illness, such as smoking, asthma,

or ammonia, and concluded that he developed RADS as a result of his exposure to

Carlon cement fumes. She also relied on published studies linking RADS to organic

solvents like those in Carlon cement. This testimony was properly admitted at trial

and by relying on it, a reasonable jury could find that exposure to Carlon cement was

the cause of Mattis’s injury.

 

Appellants also fault Dr. Hansen’s testimony because she could not identify

Mattis’s exposure level. As stated, exposures levels were adequately proven by

Wabeke’s testimony. The district court properly admitted the testimony of Wabeke

and Dr. Hansen and properly held that there was sufficient evidence from which a

reasonable jury could find that fumes from the Carlon cement caused Mattis’s injury.

B. Federal Hazardous Substances Act

Next, appellants complain that the district court erred in refusing to grant their

motion for judgment as a matter of law on Mattis’s failure to warn claim. They argue

that Mattis failed to prove a violation of the Federal Hazardous Substances Act

(FHSA) and, therefore, cannot prevail. The FHSA was enacted in 1960 to “‘provide
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nationally uniform requirements for adequate cautionary labeling of packages of

hazardous substances which are sold in interstate commerce and are intended or

suitable for household use.’” Milanese v. Rust-Oleum Corp., 244 F.3d 104, 109 (2d

Cir. 2001) (quoting House Comm. on Interstate and Foreign Commerce, Federal

Hazardous Substances Labeling Act, H.R. Rep. No. 1861, 86th Cong., 2d Sess. 2

(1960), reprinted in 1960 U.S.C.C.A.N. 2833, 2833). As enacted, the FHSA did not

mention federal preemption, but the 1966 Amendments to the Act added a provision

to preempt any state cause of action that seeks to impose a labeling requirement

different from the requirements in the FHSA or the regulations promulgated

thereunder. See 15 U.S.C. § 1261 note (b)(1)(A) (“no state . . may establish or

continue in effect a cautionary labeling requirement applicable to such substance or

packaging and designed to protect against the same risk of illness unless such

cautionary labeling requirement is identical to the labeling requirement under [this

Act]”); see also Moss v. Parks Corp., 985 F.2d 736, 739 (4th Cir. 1993). Other

circuits interpreting this provision have held that a plaintiff may not bring a claim for

failure to warn based on state requirements that are more elaborate than the FHSA;

however, a common law tort action based on failure to warn may be brought for noncompliance with the federal labeling requirements. See e.g. Milanese, 244 F.3d at

109-110; Moss, 985 F.2d at 740. Similarly, our circuit has held that “when a statute

only preempts state requirements that are different from or in addition to those

imposed by federal law, plaintiffs may still recover under state tort law when

defendants fail to comply with the federal requirements.” National Bank of

Commerce of El Dorodo v.Kimberly-Clark Corp., 38 F.3d 988, 993 (8th Cir. 1994).

Therefore, in order to prevail on his failure to warn claim, Mattis had the burden of

proving the Carlon cement label did not comply with the FHSA.

The FHSA requires that a warning label contain, among other things, the

following information: “(E) an affirmative statement of the principal hazard or

hazards, such as . . . ‘Vapor Harmful’ . . . ; (F) precautionary measures describing the

action to be followed or avoided. . . ; (I) instructions for handling and storage. . . ; and
4

 Appellants also argue that Mattis was required to use expert testimony to

prove appellants’ noncompliance with the FHSA, but they cite no case for this

proposition. The district court held that expert testimony is not necessary to show

that a warning is inadequate if the alleged inadequacy of the warning is within the

comprehension of the average layperson. See e.g. Alexander v. Morning Pride Mfg.,

Inc., 913 F. Supp. 362, 371 (E.D. Pa. 1995); Chizmadia v. Smiley’s Point Clinic, 873

F.2d 1163, 1165 (8th Cir. 1989) (“[E]xpert testimony is not necessary where the

matters to be proved fall within an area of common knowledge. . . .”). Although

expert testimony may be necessary to prove noncompliance with the FHSA in some

cases, it was not necessary in this case. In light of the fact that the label did not

contain the requisite “keep out of reach of children” statement and did not state any

precautionary or handling instructions that warned the consumer to avoid fumes, the

jury was capable of finding noncompliance with the FHSA without expert testimony.

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(J) the statement (i) ‘Keep out of the reach of children.’” 15 U.S.C. § 1261(p)(1).

The district court held that there was a question of fact for the jury about whether

these requirements were met because the label did not state “[k]eep out of the reach

of children” and because the evidence about the harmful effects of Carlon cement

called into question whether the label’s statements about principal hazards,

precautionary measures, or instructions for handling were inadequate. We agree.

Although the label stated “vapor harmful,” this warning was followed by the

statements, “may irritate eyes and skin” and “vapors may cause flash fires.” The label

does not make it clear that inhalation of the vapors is harmful. The label did not state

handling instructions or specify any precautionary measures regarding inhalation of

fumes from the cement other than to say, “if inhaled, get fresh air.” Moreover, the

jury was properly instructed that if the label contained all the information required by

the FHSA, the appellants were not negligent. Neither party objected to this

instruction.4

 We find that the court properly refused to grant judgment as a matter

of law on this issue.

Appellants also argue that even if the label was deficient under the FHSA,

those deficiencies were not the proximate cause of Mattis’s injury. A deficient
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warning cannot be considered the cause of a user’s injury when the user was fully

aware of the danger, see Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1084-85 (8th Cir.

1999), but that rule cannot be applied to the case at hand. Mattis was not an

experienced electrician who should have been aware of the dangers associated with

breathing fumes from hot cement; rather, he was an apprentice electrician. He

testified that he read the label and abided by its instruction not to get the cement on

his skin or in his eyes. He further testified that had the label warned him not to inhale

the fumes, he would not have held the can in his breathing zone to open it. This

evidence was sufficient for a reasonable jury to find that the deficient label was the

proximate cause of Mattis’s injuries. 

 

C. Evidentiary Issues

Appellants also appeal the district court’s denial of their motion for a new trial

on the grounds that the district court erroneously excluded field monitoring studies

performed by the appellants and erroneously admitted evidence concerning health

complaints related to Carlon cement. When a motion for new trial is based on rulings

regarding the admissibility of evidence, the district court will not be reversed absent

a clear and prejudicial abuse of discretion. First Sec. Bank v. Union Pac. R.R. Co.,

152 F.3d 877, 879 (8th Cir. 1998) (citation omitted). The field monitoring studies in

question were performed after Mattis’s exposure. They measured the air quality that

two California construction workers breathed while they were working with another

Carlon cement product in trenches outside in 70 degree weather with wind. The

district court excluded the studies because they were performed under significantly

different working conditions and because they used different product types. The

district court concluded that the studies were not substantially similar to Mattis’s

exposure, but they were “confusingly similar.” We agree and find no abuse of

discretion by the district court.
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Appellants also argue that the district court abused its discretion in admitting

reports from the Rocky Mountain Poison Control Center. The Center received

telephone calls regarding questions or problems relating to consumers’ exposure to

Carlon cement. The district court admitted the Center’s reports because they proved

that the organic solvents in Carlon cement were respiratory irritants and because the

reports were unlikely to confuse the jury. The district court also noted, however, that

the reports could not be used to prove causation. This ruling was not an abuse of

discretion.

III. Conclusion

For the reasons stated above, we affirm the district court’s decision. 

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.