DES MOINES, Iowa (Legal Newsline) - A building owner isn’t responsible for an elderly woman’s lung injuries she blamed on a smelly drain cleaner called Draynamite, the Iowa Supreme Court ruled, citing a lack of scientific evidence.
Jacqueline Sue Uhler sued the Graham Group after she was sickened by fumes with a rotten-egg smell emanating from a clogged restroom sink on a lower floor in a medical office building. A maintenance worker poured an unknown amount of Draynamite into the sink and soon after building employees began calling in complaints, opening up windows and setting up fans to dissipate the smell.
Uhler, who was 78 and had a history of asthma, went home early from her fourth-floor office and later was treated by a pulmonologist who said she had suffered permanent lung injury from the fumes. Uhler’s lawyers pled the case as a premises liability claim, not a toxic tort, to try and sidestep proving general and specific causation. But after listing her allegations, the Iowa Supreme Court said “that’s a toxic tort claim” and upheld the dismissal in a June 23 decision for lack of evidence.
Uhler relied upon Draynamite’s warning label, which listed chemicals including sulfuric acid and said inhalation of the vapors could cause lung damage. She also submitted reports from two experts. One was a rehabilitation medicine specialist who offered no opinion on whether a toxin caused her injury. The other was a pulmonologist, Dr. Jacqueline Stoken, who had no opinion on the dose necessary to hurt Uhler four floors above the sink.
Dr. Stoken concluded that because Uhler’s diagnosis of permanent injury followed the bad smell, the one must have been caused by the other, the court said. But a jury doesn’t have the scientific training to reach that conclusion so Uhler needed an expert witness to state the dose of Draynamite needed to injure her lungs, the court said.
While courts don’t require “mathematical precision” in calculating the exposure needed to cause an injury, the court concluded, Uhler needed to provide some expert opinion.
“Is a cup or two of Draynamite capable of producing enough vapor to circulate through a large office building and reach four floors above while retaining enough toxic potency to cause permanent pulmonary damage?” the court asked. “None of Uhler’s experts answer this question.”
Justice Christopher McDonald dissented, saying the case shouldn’t have been dismissed at the summary judgment state and the two-step process of establishing causation wasn’t necessary. Just as in a car-crash lawsuit the plaintiff doesn’t need a physicist to explain what happens when two cars collide, the judge wrote, Uhler didn’t need an expert to explain how fumes that multiple people in the building complained about could have injured her lungs.
“All of this is sufficient to rule in Draynamite as a cause of injury, while no evidence rules Draynamite out,” the judge wrote.