The Ho norable Pasco M. Bowman became Chief Judge of the United State s 1 Court of Appeals for the Eighth Circuit on April 18, 1998.



## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 97-4098

___________ Richard Bednar, Jr.; Laura Bednar, * Individually and as Next Friends of * Marian Kristen Bednar, * Appeal from the United States

Plaintiffs-Appellants, * Eastern District of Arkansas.

v. * Bassett Furniture Manufacturing * Company, Inc., *

Defendant-Appellee. * District Court for the

*

*

___________ Submitted: April 16, 1998 Filed: June 24, 1998

___________ Before BOWMAN, Chief Judge, McMILLIAN, and MURPHY, Circuit Judges. 1

___________ MURPHY, Circuit Judge.
Richard and Laura Bednar brought this action against Bassett Furnitur e Manuf acturing, Inc., (Bassett) based on diversity of citizenship, 28 U.S.C. § 1332 , all eging that a dresser it had manufactured emitted dangerous levels of formaldehyde-2-

whichinjured their baby, Marian Kristen. They appeal from a summary judgment in favor of Bassett. We reverse and remand.
The Bednars purchased the Bassett dresser from Montgomery Ward prior to the birth of Marian for the room they were preparing for the exp ected baby. They installed the dresser in the room and put various baby clothes, line ns, and blankets in it. Several family members noticed the dresser had what they described a s a “new” smell. Marian was born o n September 26, 1994 with no health problems and was taken to her room at home a few days later. The noticeable odor was still coming from the dresser, and by this time it had permeated the clothes and linens stored in it.

Mar ian soon began to suffer from unusually rapid breathing and redness in her eyes. D espite repeated visits to the doctor, the problems persisted and the Bednar s began to suspect that they were related to the dresser. In late November Marian’ s breathing problems worsened an d caused her parents to take her to the hospital and to contact poison control. They removed the dresser from Marian’s room when the y returnedfrom the hospital, and her respiratory difficulty and eye inflammation began to subside. She was nevertheless hospitalized again on Decemb er 1, and she continued to suffer chronic kidney infect ions that did not respond to normal antibiotic treatments and s he developed reactive asthma and gastrointestinal reflux. The Bednars notice d that Marian seemed irritable and hyperactive, grew quite slowly, and developed several allergies that required almost daily shots to control.
The Bednars filed suit against B assett and Montgomery Ward, raising claims of neglig ence, strict product liability, and breach of the implied warranties o f
mer chantability and fitness for a particular purpose under the Uniform Commercia l Code

. The district court administratively terminated the action against Montgomer y Ward after an automatic bankruptcy stay went into effect, and subsequently Basset t moved for summary judgment after there had been substantial discovery.-3-

The Bednars provided a vari ety of evidence to support their claims. Dr. Thomas Rimmer, an industrial hygienist, tested the dresser for formaldehyde emission. H e t e stified at his deposition about the test findings, as well as the levels of formaldehyde exposure that have been found to cau se various health problems. Guidelines developed by governmen

t and industry for formaldehyde exposure and its effects relied on by Dr. Rimmer were also put in the record. Evidence about the emission of formaldehyde from Bassett products was produced from its employee Wayne Atkins, its retained expert, Dr. Henry Simmons, and its internal testing reports. The baby’s treating physicians, Dr

. Christian Lindsey and Dr. Alfred Johnson, gave their diagnosis that she suffered from the effects of acute formaldehyde exposure, and several family members described her symptoms and the chemical odors coming from the dresser.
The district court granted summary judgment on the basis that the Bedna rs had not made a sufficient showing that the dresser’s emission of formaldehyde proximatel y caused Marian’s physical problems, citing Wright v. Willamett e Industries, Inc. , 91 F.3d 1105 (8th Cir. 1996) . Summary judgment is reviewed de novo, Unigroup v. O’Rourke Storage & Transfer , 980 F.2d 1217, 1219 (8th Cir. 1992), and is appropriateonly if there is no genuine i ssue of material fact and the moving party is entitled to judgment as a matt er of law. Fed. R. Civ. P. 56(c). The key question here is whether the evidence , viewed i n the light most favorable to the Bednars, could support a finding of causation in their favor. Matsush ita Electrical Industrial Co., v. Zenith Radio , 475 U.S. 574, 587 (1986).
Wright was also a toxic tort case involving Arkansas law. The plaintiffs there had prevailed at trial but lost on appeal because they had not made a submissible case o f causation. In Wright

the court explained that a plaintiff in such a case must establis h both “the levels of exposure that are hazardous to human beings generally” and “th e plaintiff’s actual level of exposure to the defendant’ s toxic substance.” 91 F.3d at 1106. The plain tiffs in Wright

failed to meet either requirement. Although their theory o f recovery rested on the effects of formaldehyde in wood fibers, they produced no-4-

evid ence about what level of exposure to such fibers would be harmful or about wha t amountof f

ormaldehyde was in the wood fibers present in their house. Id at 1107

. Their experts testified about the level of gaseous formaldehyde that would have adverse effec ts, but they did “not claim to have been injured from breathing gaseou s formaldehy de.” Id . They could not recover because they had not shown that they had been exposed to a hazardous level of formaldehyde from the fibers.

The Bed nars’ theory of recovery was based on hazardous levels of gaseou s formaldehyde emanating from the dresser manufactured by Bassett, and they supplied substantial evidence to meet both Wright requirements. They produced evidence tha t the threshold limit of safe exposure to gaseo us formaldehyde approved by the American Conference of Governmental Industrial Hygienists is 0.3 parts per million (PPM), that the average safety limit set by the National Institute for Occupational Safety & Health for a n eight hour period is 0.016 PPM and 0.1 PPM for any individual fifteen minut e exposur e, and that the safety limit recognized by the Occupational Safety and Health Admi nistration is 0.75 PPM for an eight hour average and 0.2 PPM for any fiftee n minute period. Dr. Rimmer testified that irritation of the eyes and respiratory syste m could be triggered by exposure over 0.1 PPM, th at diminished lung capacity and asthma could follow prolonged exposure to amount s over 0.24 PPM, and that the risk of cancer would increase from exposure ranging fro m 0.10 to 0.07 PPM. Dr. Simmons, Bassett’s own expert, testified that exposure to formaldehyde at a level of 0.10 PPM or more could
cause adverse health effects, and Bassett’s safety documents indicated that acut e exposure could trigger irritation of the eyes, respiratory system, and digestive tract.

In this case there was testing of the formaldehyde source, and the Bednar s produc ed evidence that Marian was actually exposed to dangerous levels of gaseou s formaldehyde. Before c onducting his tests Dr. Rimmer removed the covering that had b e en placed on the dresser while it was in storage and then left the dresser in the open for two days. The test results indicated that the air in the dresser drawers contained-5-

gaseou s formaldehyde at a level of 0.35 PPM. Dr. Rimmer testified as to the levels of formaldehyde that are considered unsafe and that the dresser was emitting gaseou s formaldehyde, that formaldehyde collects and concentrates in the air over time, and that the gaseous formaldehyde

in the drawers exceeded accepted safe limits. His testimony
was ba sed on his tests and recognized health standards and scientific literature. Se e Dauber t v. Merrell Dow Pharmaceuticals , 509 U.S. 709 (1993). Although Basset t argues that the formaldehyde in the dresser would have concentrated after it was covered for storag e, the dresser was left in open air for two days before testing. Dr. Rimme r testified that the formaldehyde emission rate from a new product would decrease rapidly
over time which made it impossible to recreate the exact conditions in Marian’s room after the fact, but he also testified that the formaldehyde gas would have concentrated in th e air in the room and that the concentration of formaldehyde gas in the dresse r drawers e xceeded recommended exposure levels. The evidence put in the recor d provided a sufficient basis from which a trier of fact cou ld infer that the baby’s exposure to gaseous formaldehyde exceeded safe levels.
Additional evidence of Marion’s exposure was present from other sources. Bas sett employee Atkins testified that the dresser was constructed of medium density fiberboard which has the highest formaldehyde emission rate of any pressed wood product and that company tests of the batch of fiberboard used in the dresser showed it had an unusually high fo rmaldehyde emission rate. Both Dr. Simmons and Dr. Rimmer testified tha t clothes and linens stored in the dresser would absorb formaldehyde, and th e concentration of formaldehyde gas in t he drawers exceeded safe levels according to Dr. Rimm er’s tests. Dr. Lindsey’s reaction upon examining baby clothes from the dresser atthe time he was treating Marion was, “[d]amn, that’s a chemical odor.” Marian’ s grandmother reported that her eyes burned after she used a towel stored in the dresser, and her aunt testified that she noticed a chemical odor whenever she was in the baby’s room and that the clothes and other items stored in the dresser smelled of it. Dr. Johnson te stifiedthat the baby had elevated levels of antibodies in her blood indicating recen t exposure to formaldehyde. He diagnosed her-6-

ill ness as caused by “toxic effects of formaldehyde exposure.” Bassett’s expert, Dr

. Simmon s, also admitted that Marian’s elevated level of antibodies and symptoms o f respirat ory distress and redness around the eyes were consistent with formaldehyd e exposure.
Based on this evidence, a jury could infer that it was more likely than not tha t baby Mar ian’s illnesses were caused by exposure to unsafe levels of formaldehyd e emanating f

rom the dresser. The Bednars did not need to produce “a mathematicall y precise table equating levels of exposure with levels of harm” in order to show Marian’s level of exposure to gaseous formaldehyde, but on ly “evidence from which a reasonable person could conclude that [the] defendant’s emission has probably caused” the har m ab out which they complain. Wright , 91 F.3d at 1107. The Bednars had to make a threshold showing that the dresser exposed the baby to levels of gaseous formaldehyde known to cause the type of injuries she suffered. This they did.
Since the Bednars produced a s ubmissible case on causation, summary judgment should not ha ve been granted. Whether they can prevail on the merits remains to b e seen, and Bassett may well persuade the trier of fact of its position. In the meantime , however, t he summary judgment is reversed, and the case is remanded for furthe r proceedings consistent with this opinion.
A true copy.

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