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KIRSTEIN v. W.M. BARR & CO.

October 28, 1997

GEORGE KIRSTEIN and JOY KIRSTEIN, Plaintiffs,
v.
W.M. BARR & COMPANY, INC. and PARKS CORPORATION, Defendants.



The opinion of the court was delivered by: CONLON

 George Kirstein ("Kirstein") and his wife Joy Kirstein ("Joy") (collectively "plaintiffs") sue W.M. Barr & Company, Inc. ("Barr") and Parks Corporation ("Parks") (collectively "defendants"). Counts I and II are products liability claims brought by Kirstein. Count III is a claim for loss of consortium brought by Joy. In Count IV, Joy claims she is entitled to reimbursement for Kirstein's medical expenses under the Family Expense Act. The defendants have filed separate motions for summary judgment pursuant to Fed. R. Civ. P. 56.

 BACKGROUND

 Plaintiffs are residents of Westmont, Illinois. Barr is a Tennessee corporation with its principal place of business in Tennessee; Parks is a Massachusetts corporation with its principal place of business in Massachusetts. As complete diversity exists and the amount in controversy exceeds $ 75,000, this court has jurisdiction pursuant to 28 U.S.C. ยง 1332.

 When Kirstein purchased his house, the kitchen, foyer, hallway and bath areas had linoleum flooring. Kirstein decided to replace the linoleum flooring with parquet wood flooring. Kirstein pulled the linoleum off the floor. Defendants' 12(M) Statement of Undisputed Material Facts ("Defs. 12(M)") P 18. Kirstein knew that before laying down the parquet floor tiles, he needed to remove the mastic glue material that remained on the floor; he realized he needed an adhesive remover for this task. Id. On August 16, 1994, Kirstein purchased two gallons of Parks Adhesive Remover, a product manufactured by defendant Parks. Id. P 19. Kirstein read the instructions on the label of the adhesive remover. Id. P 20. The next morning, Kirstein coated the kitchen area with adhesive remover and scooped up what was left behind with a shovel. Kirstein then did the same in the foyer, hallway, and bathroom. Id. P 21. After using the shovel, Kirstein found there was still a residual gelatinous substance on the floor. Id. P 22. He remembered that the adhesive remover instructions stated, "For best results, wash stripped surface with Parks Lacquer Thinner before applying new adhesive." Id.

 Kirstein went to a store to purchase lacquer thinner. He bought one gallon of Klean-Strip Lacquer Thinner, a product manufactured by defendant Barr. Id. P 23. Prior to using the lacquer thinner, Kirstein read the instructions, warnings, and labels on the lacquer thinner can. Id. The warning label on the lacquer thinner's main display panel states " EXTREMELY FLAMMABLE " and instructs the user to read other cautions on the back panel. Barr Ex. H. The back panel includes the following cautionary language:

 
DANGER! EXTREMELY FLAMMABLE. KEEP AWAY FROM HEAT, SPARKS, FLAME AND ALL OTHER SOURCES OF IGNITION. VAPORS MAY CAUSE FLASH FIRE OR IGNITE EXPLOSIVELY. Do not smoke. Extinguish all flames and pilot lights, and turn off stoves, heaters, electric motors and all other sources of ignition during use and until all vapors are gone. Beware of static electricity that may be generated by synthetic clothing and other sources.
 
Whenever possible, use outdoors in an open area. Do not use in areas where vapors can accumulate and concentrate such as basements, bathrooms or small enclosed areas. USE ONLY WITH ADEQUATE VENTILATION TO PREVENT BUILD-UP OF VAPORS. Open all windows and doors. Use only with a cross-ventilation of moving fresh air across the work area. If strong odor is noticed or you experience light dizziness, headache, nausea or eye watering - STOP - ventilation is inadequate. Leave area immediately.
 
Contact with flame or hot surface may produce toxic gases. KEEP AWAY FROM HEAT, SPARKS, AND FLAME. DO NOT SMOKE. Extinguish all flames and pilot lights, and turn off stoves, heaters, electric motors, and other sources of ignition during use and until all vapors are gone. USE ONLY WITH ADEQUATE VENTILATION. To avoid breathing vapors or spray mist, open windows and doors or use other means to ensure fresh air entry during application and drying.

 Barr Ex. G.

 In preparation for use of the lacquer thinner, Kirstein opened the sliding door on the south side of his house (opposite of the side where he was working), opened his front door, turned off the furnace pilot and the fireplace pilot, and turned down the water temperature of the hot water heater. Defs. 12(M) PP 26, 28; Pl. 12(N) P 3. Kirstein turned on the motorized electric exhaust fan in the downstairs bathroom. Defs. 12(M) P 27. Kirstein knew that his air conditioner was powered by electricity, and was aware of a switch on his furnace that deactivates the blower motor in the air conditioning unit. Id. P 29. He did not deactivate the blower motor. Id. Kirstein testified that he used a rag on a scraper to apply lacquer thinner and to wipe the surface of the floor. Defs. 12(M) P 30; Pl. 12(N) P 4. Kirstein completed the kitchen and then proceeded to the bathroom, the hallway, and the foyer, working his way backwards towards the front door. Defs. 12(M) P 30. To finish the hallway, Kirstein needed to close the front door. Id. P 31. Moments after he closed the front door, the hallway was in flames. Id. Kirstein suffered burns over 20% of his body, with slightly over one-third of those burns on his feet. Pl. Ex. A. Kirstein had full thickness burns on the dorsal and plantar surfaces of both feet. Pl. Ex. A.

 DISCUSSION

 I. DR. NELSON'S TESTIMONY and FRE 702

 Many assertions in the plaintiffs' 12(N) statement are supported only by the deposition testimony of Dr. Gary Nelson, a safety engineer whose expert testimony plaintiffs proffer. Dr. Nelson is prepared to testify as follows: The risks of using the defendants' products were enhanced by the direction to use lacquer thinner after using the adhesive remover. Pl. 12(N) P 11. Another brand of adhesive remover advises the use of mineral spirits instead of lacquer thinner; mineral spirits are less hazardous than lacquer thinner. Id. PP 22 - 23. Methyl ethyl ketone ("MEK"), the active ingredient in lacquer thinner, is absorbed by permeable objects. Id. P 18. When the products are used together, the "gooey substance thus created" will continue to burn after the MEK "flashes out." Id. P 16. The product labels do not explain that vapor can travel and create an explosive condition outside the area of use. Id. P 19. The lacquer thinner individually, and the lacquer thinner and adhesive remover combined, create a hazardous condition that is beyond the understanding of the homeowner. Id. P 17. Dr. Nelson further explains:

 
If we have vapor in this room and we walk in and there's a flash, we're going to get our eyebrows singed, our hair singed, and we're going to get some burns. If I take MEK (the active ingredient in lacquer thinner), and I mix it with something and I spread this stuff on your skin, and that flash ignites the MEK within the substance, and it's continually giving off vapor from it, it will continue to burn....if it's mixed with a gooey substance, that gooey substance will continue to burn. We're no longer now talking about just a flash and the fire is gone. We're talking about a continually burning substance....

 Pl. Ex. D at pp. 164

 Defendants challenge the admissibility of Dr. Nelson's statements pursuant to Federal Rule of Evidence 702, which provides:

 
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

 "In the context of theoretical and applied science, [the first] requirement places on the court the obligation to ensure that the proffered testimony pertains to scientific knowledge." Id. (citing Deimer v. Cincinnati Sub-Zero Prods., Inc., 58 F.3d 341, 344 (7th Cir. 1994); Porter v. Whitehall Labs., 9 F.3d 607, 614 (7th Cir. 1993)). An expert scientific opinion must be grounded in the "methods and procedures of science," and must consist of more than "subjective belief or unsupported speculation." Daubert, 509 U.S. at 589. Put another way, "a district court asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist." Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996). In Cummins, the plaintiff argued the application of well-known instruments of the engineering profession to a particular and "not-out-of-the-ordinary" application required substantial deviation from the paradigm announced by the Supreme Court in Daubert. The Seventh Circuit rejected that argument, stating:

 
The Supreme Court did acknowledge in Daubert that, because the case presented a matter of scientific inquiry, its discussion was limited to the "scientific context." (citation omitted). The court also noted, just as pointedly, that its holding was not limited to cases involving "novel" scientific theories. [ Daubert, 509 U.S. at 592 n. 11]. As the case law of this circuit amply demonstrates, we believe that this latter remark in Daubert counsels against a wholesale abandonment of the Daubert analysis simply because the issue before the court, although rooted in science, involves the application of science to a concrete and practical problem. See, e.g., Buckner v. Sam's Club, Inc., 75 F.3d 290, 292-94 (7th Cir. 1996) (safety management expert); Deimer v. Cincinnati Sub-Zero Prods. Inc., 58 F.3d 341 (7th Cir. 1995) (testimony concerning cord wrap on hospital equipment). Indeed, the drafters of Rule 702 seem to have acknowledged that the line between "scientific" and "technical" is not a bright one.

 Cummins, 93 F.3d at 367 n. 2.

 Dr. Nelson admits he is not a chemist; he is a safety engineer with an educational background in industrial and product safety. His graduate coursework included a course on fire protection and prevention. Pl. Ex. D. In the last 10 to 25 years, Dr. Nelson has not done any lab work in the fire protection area. Id. at pp. 19, 32. Dr. Nelson contends he did not have the products in this case or their mixture chemically tested because

 
it wasn't necessary...the analysis that I performed was a review of the chemical properties based on the material safety data sheets from the point of view of what an industrial hygienist or safety engineer would normally do in relation to those sheets. In other words, I relied on the ...

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