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Steven Noffsinger v. the Valspar Corporation

March 15, 2012


The opinion of the court was delivered by: Judge Robert W. Gettleman


Plaintiff Steven Noffsinger filed a three-count amended complaint alleging strict liability and negligence claims (along with an alternate negligence claim under a res ipsa loquitor theory, which this court dismissed in its order dated May 26, 2010) against defendants The Valspar Corporation and its subsidiary, Engineered Polymer Solutions, Inc. Defendants have filed the instant motion under Fed. R. Evid. 104(a) to exclude the testimony of four of plaintiff's expert witnesses. Defendants contend that without this testimony, plaintiff cannot establish the elements of his claims, and therefore have also moved for summary judgment under Fed. R. Civ. P. 56. Along with his response to that motion, plaintiff moved to strike Exhibit I of defendants' motion to exclude and for summary judgment (actually an exhibit to defendants' Local Rule 56.1 statement of facts). A day after those filings, plaintiff filed a motion to supplement his response in opposition to defendants' motion with an after-acquired medical record. In addition, plaintiff has filed a motion to reconsider the court's April 20, 2011, scheduling order and to strike two opinions of Joel Cohen, an expert witness offered by defendants. Also pending is plaintiff's objections to Magistrate Judge Brown's June 17, 2011, memorandum opinion and order. For the following reasons, the court denies defendants' motion to exclude and for summary judgment, denies as moot plaintiff's motion to strike Exhibit I, denies as moot plaintiff's motion to supplement, and denies plaintiff's motion to strike Mr. Cohen's opinions two and three. Plaintiff's objections to Magistrate Judge Brown's June 17, 2011, order are also denied.


Unless otherwise specified, the following facts are undisputed. In February 2007, Valspar hired Midwest Coast Transport, Inc., for which plaintiff worked as a commercial truck driver, to deliver 72 55-gallon drums of Dynamprime paint, a solvent-based coating designed for use on metal coils, from Valspar's plant in Kankakee, Illinois, to Santa Fe Springs, California. On his way to Santa Fe Springs, plaintiff and his dog, Boomer, stopped to spend the night at a truck stop. Plaintiff awoke early in the morning of February 17, 2007, and discovered that Dynaprime was leaking from the front and rear of the trailer, and had pooled near the drive tires outside the cab of the truck. Plaintiff alleges that he developed permanent respiratory injuries-specifically, Reactive Airways Dysfunction Syndrome, or RADS-as a result of exposure to the paint fumes. On March 30, 2007, Boomer died.

RADS was first named and described in an academic article, based on a study of 500 asthma patients, that was published in 1985. See Stuart M. Brooks, Mark A. Weiss & I.L. Bernstein, Reactive Airways Dysfunction Syndrome: Persistent Asthma Syndrome After High Level Irritant Exposures, 88 Chest 376 (Sept. 1985). Based on their examinations of those patients, the authors arrived at eight criteria for diagnosing RADS, id. at 377 (Table 1):

1. A documented absence of respiratory complaints.

2. The onset of symptoms occurred after a single specific exposure or accident.

3. The exposure was to a gas, smoke, fume, or vapor present in a very high concentration and which had irritant qualities.

4. The onset of symptoms occurred within 24 hours after the exposure and persisted for at least 3 months.

5. Symptoms simulated asthma with cough, wheezing, and dyspnea predominating.

6. Pulmonary function tests may show airflow obstruction.

7. Methacholine challenge testing was positive.

8. Other types of pulmonary disease were ruled out.

At trial, plaintiff intends to present the testimony of five expert witnesses.*fn1 Dr. Thomas Milby, an expert on RADS and causation, would testify that plaintiff suffers from RADS caused by exposure to Dynaprime fumes on February 17, 2007. Similar testimony would be offered by Dr. James Tita, a pulmonologist who served as plaintiff's primary treating physician from June 13, 2007, until July 2010. Dr. Karen Pacheco, whom plaintiff states has been his treating physician since July 26, 2010, will testify that plaintiff suffers from RADS.*fn2 Dr. Sheldon Mostovoy is a metallurgist who would offer expert testimony that the drum had an obvious defect that defendants could have discovered before filling it with Dynaprime. Finally, Dr. Kenneth Brown, an expert in the paint and coating industry, would offer expert testimony regarding defendants' efforts to inspect the drum before filing it with Dynaprime.


A. Defendants' Motion to Exclude Testimony of Thomas Milby, James Tita, Sheldon Mostovoy, and Kenneth Brown

1. Legal Standard

Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), govern the admissibility of expert testimony. See Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). Under Rule 702, "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the ...

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