NO. 96-153 

IN THE SUPREME COURT OF THE STAT- E OF MONTANA 

1996 

. nl' ,,. i,; ( %y3# , , 

MISCHELLE SCHELSKE and RICK SCHELSKE. 

Plaintiffs and Appellants, 

CREATIVE NAIL DESIGN, INC., a foreign corporation; 

OPI PRODUCTS, INC., a foreign corporation; CLAIROL, INC., 

a foreign corporation, HELENE CURTIS, INC., a foreign 

corporation; NEXXUS PRODUCTS COMPANY, a foreign corporation; 

THE ADU COMPANY, a foreign corporation; REVLON PROFESSIONAL 

PRODUCTS, INC., a foreign corporation; COSMETIC ARTS, 

a foreign corporation; AMERICAN INTERNATIONAL, a foreign 

corporation; SEBASTIAN INTERNATIONAL, a foreign corporation; 

UNIT CHEMICAL CORPORATION, a foreign corporation; PAUL MITCHELL 

(BOCCHI LABORATORIES); MATRIX ESSENTIALS, INC., a foreign 

corporation; MALIBU 2000, a foreign corporation; HIGHLAND 

CORPORATION, a foreign corporation; CAPITAL HILL MALL PARTNERSHIP, 

a Utah limited partnership; JC PENNEY COMPANY, INC., a foreign 

corporation; PALMER DUNCAN CONSTRUCTION COMPANY, a Montana 

corporation; and DOES and ROES ONE THROUGH TEN, 

Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John C. Doubek; Small, 3atch, Doub-k 

& Pyfer; Helena, Montana 

For Respondents: 

Randy J. Cox; Boone, Rarlberg & Haddon; 

Missoula, Montana 

Susan P. Roy; Garlington, Lohn & Robinson; 

Missoula, Montana 

Ronald F. Waterman; Gough, Shanahan, 

Johnson & Waterman; Helena, Montana 

Filed: 

Submitted on Briefs: October 10 1996 

/"\ 

2 a. Decided: January 2, '1997 
Justice Charles E. Erdmann delivered the opinion of the Court. 

Mischelle and Rick Schelske appeal from the amended order 

granting summary judgment in favor of the defendant manufacturers 

as entered by the First Judicial District Court, Lewis and Clark 

County. We affirm. 

The issue on appeal is as follows: 

Did the District Court properly grant summary judgment in 

favor of the defendants? 

A. Did the District Court correctly conclude that the 

Schelskes failed to comply with the Case Management Order? 

B. Did the District Court err in determining that the 

Schelskes cannot exclusively rely upon Material Safety Data Sheets 

to establish a prima facie claim of product liability? 

C. Did the District Court err in not accepting the 

Schelskes' legal assertion that once the plaintiffs produce 

evidence of multiple product "indivisible injury" the causation 

element of the claimants' burden of proof is satisfied and the 

burden shifts to the manufacturer to prove that their product did 

not cause injury? 

FACTS 

Mischelle Schelske worked as a beautician at the JC Penney 

store in Helena from September 4, 1984, until October 1992, when 

she left her management position at the salon. On May 11, 1994, 

Mischelle and her husband Rick filed suit against fourteen cosmetic 

manufacturing and marketing companies, two construction companies, 
and the owner of the beauty salon space. The complaint alleges her 

work exposed her to different substances which allegedly were toxic 

and that, as a result, commencing in the summer of 1992, she began 

to experience a variety of pains, swelling, and digestive 

disorders. She states in her complaint that by December 1992, she 

was totally unable to continue her work at the salon because of her 

severe symptoms and debilitating injuries and that she has since 

been unable to hold gainful employment and has sustained permanent 

injuries. The Schelskes assert that each cosmetic manufacturer 

designed, manufactured, and sold products which were defective and 

that each product directly and proximately damaged them. 

On September 28, 1994, the District Court conducted a 

preliminary pretrial hearing. Pursuant to Rule 16, M.R.Civ.P., the 

District Court issued a Case Management Order (CMO). The CMO, 

dated October 11, 1994, was designed to help focus the extensive 

discovery and to aid in the handling of the complex, multi-party 

litigation. The Schelskes and the defendants agreed to the 

issuance of this order. The CMO granted the Schelskes sixty days 

to serve discovery requests on the defendants, but limited this to 

obtaining information regarding the contents of the products used 

by Mischelle, or those which she claims to have been exposed to in 

the salon. All other discovery was stayed pending compliance with 

the CMO. 

The CMO then provided that within ninety days from the entry 

of the order, the Schelskes were required to provide a list of 
products, the circumstances of the alleged exposure, an 

identification of each specific chemical which allegedly caused 

harm, and a physician's opinion of a causal connection between 

exposure and injury. The CMO required that the affidavit from the 

physician stating his or her opinion must: (1) list all injuries, 

illness, or conditions suffered by Mischelle; (2) specify the 

chemical is) that caused each illness, injury or condition; and 

(3) state the scientific bases for the physician's opinion. 

Specifically the court stated in its order that, 

It will not be sufficient for the affidavit to state a 

lllaundry list" of injuries and chemicals. Each injury, 

illness or condition must be itemized and specifically 

linked to the chemical or chemicals believed to have 

caused that particular injury, condition or illness. 

On January 9, 1995, the Schelskes filed the affidavit of Jack 

Thrasher, a toxicologist from New Mexico. On January 30, 1995, the 

cosmetic manufacturers moved to strike Thrasher's affidavit 

alleging that it failed to comply with the CMO. On the same date 

the Schelskes filed a notice of filing discovery requests to all 

defendants. This discovery was not conducted within the sixty days 

as provided in the CMO, thus the manufacturers resisted the 

discovery and moved for a protective order. 

A consolidated hearing for all pending motions was set for 

May 25, 1995. On April 13, 1995, prior to the hearing but after 

the ninety days provided for in the CMO, the Schelskes filed the 

affidavit of Curt G. Kurtz, M.D., and then on April 28, 1995, they 

also filed the affidavit of Gunnar Heuser, M.D. The defendants 
moved to strike both affidavits, alleging that neither came close 

to complying with the CMO. At the hearing, the District Court 

determined that the affidavits did not meet the requirements of the 

CMO because they did not list which chemicals produced which 

symptoms and stated that if the court were to accept them it would 

have the effect of reversing the burden of proof. The motions to 

strike were taken under advisement and the motion for protective 

order was granted as to the Schelskes' untimely discovery requests. 

The court gave the Schelskes three additional months to comply with 

the CMO. 

On August 18, 1995, the Schelskes filed a second affidavit by 

Dr. Heuser which included approximately 100 Material Safety Data 

Sheets (MSDS) . Manufacturers are required by federal law to obtain 

or develop MSDS for each chemical they produce which potentially 

can cause a health hazard in order to provide information to 

employees about the hazards of the chemicals being produced. On 

October 23, 1995, after consideration of Dr. Heuser's statement, 

the court determined that it did not comply with the CMO as an 

affidavit from a physician listing all of Mischelle's injuries, 

illnesses, and conditions caused by the exposures, specifying the 

chemicals which caused each injury, and medically substantiating 

the physician's opinion as to these matters. The court concluded 

that the Schelskes had not complied with the CMO within the 

three-month extension period previously granted. 
The cosmetic manufacturers therefore moved to strike Dr. 

Heuser's affidavit and moved for summary judgment asserting that 

the failure to comply with the CMO and the fundamental failure to 

offer any proof of a defective product was fatal to the Schelskes' 

case. A hearing was set for January 18, 1996. On January 16, 

1996, the Schelskes filed a third affidavit by Dr. Heuser. In its 

decision and order the court stated that upon reviewing all of Dr. 

Heuser's affidavits it concluded that they did not satisfy the 

requirements of the CMO and therefore granted the defendants' 

motion to strike. The District Court also granted the defendants' 

motion for summary judgment. The District Court stated that the 

Schelskes had not even remotely complied with the provisions of the 

Case Management Order and as a result there was a failure to allege 

a prima facie products liability cause of action as set forth in 

§ 27-1-719(2), MCA. The Schelskes appeal this decision and order. 

ISSUE 

Did the District Court properly grant summary judgment in 

favor of the defendants? 

We review appeals from summary judgment rulings de novo. 

Motarie v. Northern Montana Joint Refuse Disposal Dist. (19951, 274 

Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (19941, 264 

Mont. 465, 470, 872 P.2d 782, 785. When reviewing a district 

court's grant of summary judgment, we apply the same evaluation as 

the district court based on Rule 56, M.R.Civ.P. Bruner v . 

Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. 
Summary judgment is proper only when no genuine issue of material 

fact exists and when the moving party is entitled to judgment as a 

matter of law. Brown v. Demaree (1995), 272 Mont. 479, 901 P.2d 

567. This Court looks to the pleadings, depositions, answers to 

interrogatories, admissions on file, and affidavits to determine 

the existence or nonexistence of a genuine issue of material fact. 

Ulrigg v. Jones 11995), 274 Mont. 215, 907 P.2d 937 

A. Did the District Court correctly conclude that the 

Schelskes failed to comply with the Case Management Order? 

The District Court's issuance of the CMO was wholly within its 

discretion as a management tool contemplated by Rule 16, M.R.Civ.P. 

This order was patterned after a case management order issued by 

the United States District Court, District of Montana, in Eggar, 

et al. v. Burlington Northern R.R. Co. (D. Mont. 1991), 1991 WL 

315487, aff'd Claar v. Burlington Northern R.R. Co. (9th Cir. 

19941, 29 F.3d 499. The CMO in the present case required the 

Schelskes to establish the prima facie elements of their products 

liability claim. Failure to comply with the order would therefore 

result in a failure to establish that any genuine issues of 

material fact existed as to the products liability claim, making 

the case proper for summary judgment. This Court will therefore 

review the record de novo to determine whether any genuine issues 

of material fact exist as to the elements of the Schelskes' 

products liability claim as required by the CMO. 

Sectlon 27-1-719(2), MCA, codified che product liability 

common law in Montana. This section provides: 
A person who sells a product in a defective 

condition unreasonably dangerous to a user or consumer or 

to the property of a user or consumer is liable for 

physical harm caused by the product to the ultimate user 

or consumer or to his property if: 

(a) the seller is engaged in the business of 

selling such a product; and 

(b) the product is expected to and does reach the 

user or consumer without substantial change in the 

condition in which it is sold. 

This Court has previously held that in a products liability action 

the plaintiff must show: (1) the plaintiff was injured by the 

product; (2) the injury occurred because the product was defective 

and unreasonably dangerous; and (3 1 the defect existed when it left 

the hands of the defendant. Brothers v. General Motors Corp. 

(1983), 202 Mont. 477, 480, 658 P.2d 1108, 1109; Brown v, North 

American Mfg. Co. (19771, 176 Mont. 98, 105, 576 P.2d 711, 716. 

In sum, the Schelskes were required by the CMO to establish 

the following facts in order to proceed with a prima facie claim of 

products liability: (1) product identification; (2) use and 

exposure; and (3) causation linking product defect to an 

identifiable injury. 

The first element required by the CMO was a statement 

specifically identifying each product by manufacturer that 

Mischelle claims to have caused her harm. The affidavits submitted 

by the Schelskes listed numerous products that may have "potential 

adverse health effects." However these affidavits, many of which 

include over 150 pages of MSDS, do not sufficiently identify the 

specific products Mischelle claims to have been exposed to in her 

work at the salon. 
The Thrasher affidavit filed on January 9, 1995, includes a 

list of 153 products under the heading of "Products With Potential 

Human Adverse Health Effects." Although Thrasher's affidavit did 

not state that all 153 products listed were actually claimed by 

Mischelle to have caused her harm, this could possibly be inferred 

from the affidavit. Thrasher states that he had been requested "by 

Plaintiffs' counsel to address a number of products which plaintiff 

Mischelle Schelske has indicated she has used or come into contact 

with during the course of her working in the beauty salon." 

Regardless of whether Thrasher's affidavit only addresses products 

Mischelle allegedly claims to have come into contact with, many of 

the products were listed in generic terms such as "shampoos" or 

"bleach powders." Without specific product names, which would have 

provided the defendants with the necessary information to allow 

them to defend against the Schelskes' claim, the affidavit fails to 

meet the requirements of the CMO. 

Dr. Heuser's first affidavit does not provide any additional 

information as to specific product names that Mischelle alleges to 

have caused her harm. Heuser's second affidavit, filed August 18, 

1995, states that he has considered the list of products which 

Mischelle claims to have been exposed to; however, this list was 

not provided. The third affidavit of Dr. Heuser, submitted two 

days prior to the hearing on the motion for summary judgment, comes 

closest to complying with the CMO, but again does not provide a 

complete list of each product Mischelle alleges to have harmed her. 
The affidavits submitted, therefore, do not substantially comply 

with the CMO because of their fail~re to state each specific 

product that Mischelle Schelske personally identified as having 

caused her harm. 

The second element required by the CMO to form the basis of a 

prima facie products liability claim required Mischelle to 

specifically describe the circumstances of the alleged exposure to 

each of the products identified in the list required, including the 

time period during which she alleged exposure and the activities 

which resulted in the exposure. Mischelle worked at the JC Penney 

salon for a period of eight years. The record is devoid of any 

specific statement indicating the time period that each product was 

used by Mischelle, or the period when she came into contact with 

each product. In addition, the record only provides a general 

statement by the Schelskes that Mischelle used "each and every 

product on a daily basis," and that she used the products in a 

manner consistent with the nature of the product. Over a period of 

eight years, it is reasonable to assume that some products were 

used for the entire period and others were used for only a limited 

length of time. Some products may have been used several times 

daily and others only on a weekly basis. It is also reasonable to 

assume that some products were not even available at the salon for 

the entire eight-year period of alleged exposure. In fact, the 

Schelskes admit that " [tlhere may well have been some products 

which came on the market during the time Mischelle Schelske was 
employed but for the most part these products were in use the 

entire time she was employed." The Schelskes clearly did not 

comply with the CMO by providing a statement specifically 

describing the circumstances of the exposure to each of the 

products identified as having caused harm and the time period 

during which each of these products were used. 

The third and decisive element which the Schelskes failed to 

meet, as required by the CMO, is a physician's affidavit 

identifying specific injuries, specific chemicals which caused the 

injuries, and the scientific or medical basis for a causal 

connection between chemical exposure and injury. The Thrasher 

affidavit does not satisfy the initial threshold requirement, as 

Thrasher is not a physician. The affidavit of Dr. Kurtz only 

states Kurtz's acceptance of the statements made by Thrasher in his 

affidavit. It then proceeds to "laundry list" symptoms which 

Mischelle suffers, and states that she suffers from reactive airway 

disease and other conditions which have not yet surfaced or been 

diagnosed. This affidavit is clearly insufficient. The lengthy 

affidavits submitted by Dr. Heuser, however, require closer 

scrutiny. 

Heuser's first affidavit does not enumerate any specific 

injuries or illnesses, or state any specific chemicals alleged to 

have caused Mischelle harm. Heuser's second affidavit also fails 

to meet the requirements of the CMO. In this affidavit, Dr. Heuser 
states that chemicals in the defendants' products are "associated 

withn certain listed diseases. Dr. Heuser contends that: 

Chemicals in defendants' products associated with lung 

disease, including irritation of mucous membranes, 

storage disease, asthma, reactive airway dysfunction 

syndrome, sensitization, atelectasis, bronchiectasis, 

interstitial pulmonary fibrosis and lung cancer. 

Mischelle Schelske has exhibited symptoms compatible and 

susqestive of all the foregoing, with the exception that 

lung cancer has not yet been diagnosed. The list of 

diseases and injuries below are a part of what Ms. 

Schelske suffers from in my medical opinion. 

(Emphasis added. Dr. Heuser's statement only asserts an 

association between the chemicals in the defendants' products and 

the diseases of which Mischelle has exhibited symptoms. He does 

not claim that Mischelle actually suffers from those diseases or 

injuries, but rather that she has exhibited symptoms which are 

compatible and suggestive of those problems. The list that Dr. 

Heuser provides is a compilation of the data from the MSDS and is 

merely a collection of potential consequences from contact with the 

chemicals in the products and does not describe the particular 

injuries suffered by Mischelle. Furthermore, Dr. Heuser clearly 

asserts that the list of diseases and injuries provided is not an 

exhaustive list and is only a part of what Mischelle suffers from. 

The CMO specifically required that the physician's affidavit list 

"all" injuries, illnesses, or conditions suffered by Mischelle. 

The affidavit is also deficient in that it does not identify each 

chemical that caused each injury but lists generic terms such as 

"hair sprays" and "solvents." 
The third affidavit filed two days prior to the hearing on the 

motion for summary judgment speaks to some of the deficiencies of 

his second affidavit as noted by the court. Dr. Heuser complains 

in his affidavit, as did counsel for the Schelskes in a previous 

affidavit, that he is unable to identify certain undisclosed 

chemicals in some of the products such as "hair sprays." Although 

the Schelskes were limited in their discovery at this time due to 

concerns regarding trade secrets, they still failed to identify the 

known disclosed chemicals and connect them to particular injuries 

or illnesses. In his third affidavit, Heuser again states that the 

products are "associatedN with certain diseases and that Mischelle 

exhibits symptoms "compatible with" certain illnesses. These 

affidavits clearly do not comply with the CMO. The allegations 

made within the affidavits are vague and conclusory without 

providing the specific causation linking the product defect to an 

identifiable injury. This Court has consistently held that 

speculative and conclusory statements are not a sufficient basis on 

which to raise a genuine issue of material fact. Ulriqq, 907 P.2d 

at 941; Miller v. Herbert (1995), 272 Mont. 132, 137-38, 900 P.2d 

273, 276. 

The requirements of the CMO were explicitly detailed to the 

Schelskes in both the written order and orally during the pretrial 

proceedings. The Schelskes did not serve their discovery within 

the sixty days provided by the CMO. They did not provide the 

information required by the CMO wichin ninety days from entry of 
the order. On May 25, 1995, the cmrt determined that the CMO had 

not been complied with and specifically informed the Schelskes 

again what was necessary for compliance. The court granted the 

Schelskes an additional three months from May 25, 1995, to comply 

with the order. On January 16, 1996, the Schelskes made a last 

attempt to comply with the order, which was well beyond the 

additional three months granted by the District Court, and 

additionally, did not fulfill the requirements of the CMG. We 

therefore determine that the District Court was correct in 

concluding that the Schelskes did not comply with the Case 

Management Order. 

B. Did the District Court err in determining that the 

Schelskes cannot exclusively rely Gpon Material Safety Data Sheets 

to establish a prima facie claim of product liability? 

The Schelskes largely premise their assertion that they 

established a prima facie claim of products liability on the 

Material Safety Data Sheets submitted with the affidavits. They 

argue that the existence of these MSDS demonstrate that the 

manufacturers' products are toxic or hazardous. The Schelskes, in 

fact, seemingly urge this court to adopt a standard imposing 

absolute liability on any manufacturer who complies with federal 

law by publishing MSDS. 

The publication of MSDS is pursuant to federal law and is 

intended to provide information to employees about the hazards of 

the chemicals being produced. a 29 C.F.R. § 1910.1200. The 

chemical manufacturers must obtain or develop MSDS for each 
hazardous chemical they produce or import. A hazardous chemical is 

defined as one which can produce a physical hazard or health 

hazard. 29 C.F.R. 5 1910.1200. The description of the potential 

toxicity of the chemical in the MSDS is based on a pure, undiluted 

sample of the chemical and not on the product itself. 

The MSDS therefore provide no direct information regarding the 

possible toxicity of the products themselves and, furthermore, the 

MSDS do not establish that any particular product is in a defective 

condition and is unreasonably dangerous. Thortoii v. E.I. 

Du Pont De Nemours and Co., Inc. (11th Cir. 19941, 22 F.3d 284, 

288-89. In addition, the MSDS provided with the affidavits do not 

link a particular product with the chemical as one ingredient, to 

a specific injury, illness, or condition that Mischelle suffers 

from. This Court declines to adopt a standard imposing absolute 

liability on manufacturers solely on the basis that they have 

placed products into the stream of commerce for which MSDS have 

been provided pursuant to federal law. We conclude therefore that 

the District Court did not err in determining that the Schelskes 

cannot exclusively rely upon the Material Safety Data Sheets to 

establish their prima facie claim of product liability. 

C. Did Lhe District Court err in not accepting the Schelskes 

legal assertion that once the plaintiffs produce evidence of 

multiple product "indivisible injury' the causation element of the 

claimants' burden of proof is satisfied and the burden shifts to 

the manufacturer to prove that their product did not cause injury? 

The Schelskes assert that the principles of joint and several 

liability provide the means of achieving fairness where there are 
multiple defendants and multiple products which contain a variety 

of toxic or hazardous chemicals which combine to cause injury. 

They argue that it is not the responsibility of the injured party 

to allocate the harm among various tort feasors. 

The authority provided by the Schelskes for this assertion is 

1 52, Prosser on Torts, and § 433A, Restatement (Second) of Torts 

(1986). Neither of these sections absolves an injured party of the 

burden of first establishing causation. These sections provide 

only that once a defendant's conduct has been determined to be a 

cause of some damage suffered by the plaintiff then issues of 

apportionment can arise. The proof of causation is a necessary 

predicate to a claimant's burden of proof in a product liability 

action. § 27-1-719, MCA. We have determined the record in 

this case does not provide evidence that any specific substance 

caused specific harm to Mischelle Schelske, and therefore we need 

not address the issue of apportionment as it relates to damages and 

not causation. 

We affirm the District Court's amended order granting summary 

judgment in favor of the defendants. 

Justice 

We concur: 
Justices 
Justice Terry N. Trieweiler dissenting. 

I dissent from the majority opinion. 

Assuming for the purpose of this case only (because the 

plaintiffs have not argued otherwise), that the District Court had 

the authority to require that plaintiffs prove their case prior to 

trial, without any shifting of the burden pursuant to normal 

summary judgment procedures, I conclude that the plaintiffs' 

affidavits, when read in combination with each other, were 

sufficient to establish that products produced by the defendants 

included toxic chemicals which contributed as causes to specific 

injuries sustained by Mlschelle Schelske. 

The Schelskes submitted affidavits from three different 

professionals in response to the District Court's case management 

order. The first was from Jack Thrasher, Ph.D. , a toxicologist 

from New Mexico; the second from Curt Kurtz, M.D., Mischelle's 

attending physician; and the third from Gunnar Heuser, M.D., a 

physician with extensive experience in the effect of toxic chemical 

exposure. 

Dr. Thrasher indicated that he reviewed the products 

identified by Mischelle as those wlth which she had come into 

contact during the course of her employment, and also reviewed the 

Material Safety Sheets pertaining to each product. He listed those 

products by name, manufacturer, and the chemicals included in each 

product. He also listed products for which the chemical components 

had not been adequately ldentified by the manufacturer and for 

which further information was required. He ldentified typlcal 
adverse effects from the types of chemicals which were included in 

the list and stated that in his opinion, daily exposure to a 

combination of these chemicals caused Mischelle's physical 

ailments. He described her injuries as central and peripheral 

neuropathy, the presence of auto-antibodies in her immune system, 

and injuries to her organs, vascular system, and nervous system as 

a result of the auto-antibodies' presence. In his letter attached 

to his affidavit, he stated that: 

In short, the exposure to multiple chemicals and her 

symptom complex indicate that Ms. Schelske suffers from 

multiple organ injuries. These type of injuries have 

been collectivelytermed multiple chemical sensitivity by 

various clinicians. 

In conclusion, Ms. Schelske ' s current health 

problems are permanent. It is my opinion, within a 

reasonable degree of scientific and toxicologic 

probability, that her chronic daily exposure to emissions 

from various cosmetic products is directly related to her 

chronic health problems. 

Dr. Curt G. Kurtz stated, in his affidavit, that he is a 

medical doctor practicing in Bozeman and had treated Mischelle 

Schelske for the past year and was, therefore, familiar with her 

medical condition. It was his opinion that Mischelle had suffered 

injuries as a result of exposure to chemicals in the work place. 

He stated that her injuries include reactive airway disease and 

multiple organ injuries. He stated that she was also being 

evaluated for cognitive deficits due to chemical exposure. He had 

reviewed the affidavit of Dr. Jack Thrasher and stated overall 

agreement with its contents. He stated that all of the chemicals 

listed in the Thrasher affidavit are toxic to some extent and 
likely caused or contributed to the various injuries sustained by 

Mischelle. 

In his affidavit dated August 17, 1995, Dr. Heuser stated that 

during the previous month he and assorted other specialists had 

seen and examined Mischelle, and that based upon those 

examinations, and his consideration of the list of products to 

which she indicated she had been exposed, along with the 

information about those products included in the Material Safety 

Data Sheets, he believed that certain of the chemicals included in 

those products caused injuries to Mischelle. He then listed 

specific chemicals and the specific disease suffered by Mischelle 

which was associated with that chemical. He introduced the lists 

by stating in his affidavit that: 

A list of the mjurles sustained by Ms. Schelske, 

though not by any means an exhaustive list, is presented 

along with documentation from the medical literature 

which confirms that the symptoms and injuries sustained 

by Mischelle Schelske are in fact the result of repeated 

exposure to the said chemicals within the identified 

products . 

He went on to state that: 

Chemicals in defendants' products [are] associated 

with lung disease, including irritation of mucus 

membranes, storage disease, asthma, reactive airway 

dysfunction syndrome, sensitization, atelectasis, 

bronchiectasis, interstitial pulmonary fibrosis and lung 

cancer. Mischelle Schelske has exhibited symptoms 

compatible with and suggestive of all of the foregoing, 

with the exception that lung cancer has not yet been 

diagnosed. The list of diseases and injuries below are 

part of what Ms. Schelske suffers from in mv medical 

opinion. 

(Emphasis added. ) 
In other words, the affidavit of Jack Thrasher, Ph.D., 

identified the chemical component of each of the products to which 

Mischelle had been exposed. The af f idavit Gunnar Heuser, M.D., 

identified the injury that, in his opinion, Mischelle has sustained 

as a result of exposure to each of the chemical components. Both 

affidavits also stated that without further information from the 

manufacturers, there were some products whose chemical components 

were not known. However, it clearly is not correct, as the 

District Court concluded, that Dr. Heuser's affidavit failed to 

list Mischelle's injuries, and failed to identify chemicals which 

contributed as a cause of those injuries. 

I conclude that the Schelskes provided all of the information 

that could reasonably have been provided or required at thie stage 

of pretrial proceedings, and that that information was certainly 

adequate to enable the defendants to proceed with discovery by 

further depositions of the experts who had submitted affidavits. 

If further identification of specific time periods during which 

exposure occurred, or the nature of consequences from specific 

chemicals was necessary in order to defend against this case, the 

defendants had all of the information they needed with which to 

begin discovery of those details. 

I therefore conclude that if the District Court ever had 

authority to require the plaintiffs to prove their case prior to 

trial in as great a detail as was required by the District Court's 

case management order, then that order was satisfied by the 

information summarized above. 
For these reasons, I dissent from the majority opinion. I 

would reverse the District Court order granting summary judgment to 

the defendants. 
January 2, 1997 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

John C. Douhek 

Small, Hatch, Douhek & Pyfer 

P.O. Box 236 

Helena. MT 59624-0236 

John D. Stephenson 

Jardine, Stephenson, Blewett & Weaver, P.C. 

P.O. Box 2269 

Great Falls. MT 59403 

Susan P. Roy, Esq. 

Garlington, Lohn, & Robinson 

P.O. Box 7909 

Missoula. MT 59807-7909 

Ronald F. Waterman 

Gough, Shanahan, Johnson & Waterman 

P.O. Box 1715 

Helena, MT 59624-1715 

Randy .I. Cox 

Boone, Karlberg & Haddon 

P.O. Box 9199 

Missoula, MT 59807-9199 

John Poston 

Harrison, Loendorf & Poston, P.C. 

2225 11th Ave., Suite 21 

Helena, MT 59601 

Gene A. Picotte 

Attorney at Law 

$066 Helena Ave. 

Helena, MT 59601 
Curtis G. Thompson 

Thompson & Jacobsen, P.C. 

P.O. Box 2799 

Great Falls. MT 59403-2799 

John 3. Soltys 

Cozen and O'Connor 

1201 3rd Ave., Ste. 5200 

Seattle. WA 98101 

Steve Reida 

Landoe, Brown, Planalp & Braaksma, P.C. 

P.O. Box One 

Bozeman, MT 59771-0001 

Peter F. Habein & Michael S. Lahr 

Crowley, Haughey, Hanson, Toole & Dietrich 

P.O. Box 797 

Helena, MT 59624 

John Maynard 

Browning, Kaleczyc, Berry & Hoven, P.C 

P.O. Box 1697 

Helena. MT 59624 

Gary M. Zadick 

Ugrin, Alexander, Zadick & Higgins, P.C. 

P.O. Box 1746 

Great Falls, MT 59403 

Dennis P. Clarke 

Smith Walsh, Clarke & Gregoire 

P.O. Box 2227 

Great Falls, MT 59403-2227 

Mike Mulroney 

Luxan & Murfitt 

P.O. Box 1144 

Helena, MT 59624 

Brendon J. Rohan, Esq. 
Poore, Roth & Robinson, P.C. 

1341 Harrison Ave. 

Butte, MT 59701 

Steven T. Potts 

Jardine, Stephenson, Blewen & Weaver, P.C. 

P.O. Box 2269 

Great Falls, MT 59403-2269 

Steven S. Carey, Esq. 

Carey, Meismer & McKeon 

P.O. Box 8659 

Missoula, MT 59807-8659 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA