BASF Corporation (BASF), a leading pesticide manufacturer, represented by members Timothy Coughlin and John Mitchell, had a favorable summary judgment ruling affirmed late last month by a unanimous Ninth District Court of Appeals in Ohio when the panel agreed with the trial court that plaintiffs Larry and Margaret Cooper could not establish proximate cause for any of their claims due to a lack of general causation expert opinion. The “expert” retained by the Coopers, Dr. Richard L. Lipsey, was attempting to opine that BASF’s product, the termiticide Termidor SC, can cause hypothyroidism in humans, a claim that he could not substantiate through the medical literature or a proper methodology, and Ohio’s Ninth District affirmed his exclusion from offering a general causation opinion and the related no-evidence summary judgment ruling.
The case arose from an alleged misapplication of Termidor SC by co-defendant Akron Pest Control Company (Akron Pest) at the Coopers’ home in 2008. The Coopers claimed that 95 gallons of Termidor SC was applied negligently in and around their home by Akron Pest, in violation of the EPA approved warning label provided by BASF, and that Akron Pest had fraudulently secured their approval to use Termidor SC indoors. The Coopers also claimed that BASF’s label failed to disclose the risk of hypothyroidism.
More than two months after the pesticide application, Mrs. Cooper was hospitalized due to “weakness, memory loss, cognitive issues, tremors and psychological/personality changes” and diagnosed with hypothyroidism and “encephalopathy of unknown etiology, possible pesticide exposure.” Shortly after her discharge, without any additional exposure to BASF’s product, Mrs. Cooper was hospitalized again for convulsions and she was diagnosed with acute psychotic reaction, hypothyroidism, possible exposure to pesticides of unknown significance, and metabolic encephalopathy. Approximately one year later, long after the Coopers had abandoned their allegedly “contaminated” home, Mrs. Cooper was diagnosed with hypothyroidism associated with Hashimoto’s thyroiditis (the most common cause of hypothyroidism in women over the age of 50 like Mrs. Cooper) by a treating physician at the Cleveland Clinic.
Dr. Lipsey was prepared to testify that exposure to fipronil, the active ingredient in BASF’s Termidor SC product, can cause hypothyroidism in humans. However, the trial court excluded Dr. Lipsey’s testimony and granted BASF and Akron Pest’s motion for summary judgment on the ground that his inadmissible testimony was scientifically unreliable and was the plaintiffs’ only required, general causation opinion.
Affirming the trial court and likewise following a case argued in front of the Ohio Supreme Court by lead counsel Tim Coughlin, Valentine v. Conrad, 110 Ohio St. 3d 42 (2006), the Ninth District agreed that Dr. Lipsey formed his opinion “without any scientific proof of a causal link between fipronil and hypothyroidism in humans. The record contains no evidence of any generally accepted methodology that has been adopted by the scientific community to establish a causal link between fipronil and hypothyroidism in humans.”
The Ninth District panel cited heavily from the trial court’ opinion that found that “[n]one of the articles or studies [Dr. Lipsey] reviewed show a causal connection between fipronil exposure and hypothyroidism or Hashimoto’s thyroiditis. The fact that Mrs. Cooper was allegedly exposed to fipronil does not, in and of itself, establish that fipronil is capable of causing hypothyroidism or Hashimoto’s thyroiditis, her diagnosed condition.”
“Dr. Lipsey cannot reference any studies involving humans, other than one study of 103 workers exposed to Fipronil in the factory manufacturing flea collars,” the court continued. “In that study, symptoms brought on by Fipronil exposure were temporary, and workers’ conditions improved when no longer exposed. In contrast, Mrs. Cooper's condition worsened weeks and months after her alleged exposure. Thus, the only human study involving Fipronil does not support Dr. Lipsey's medical causation opinion.”
Since the Coopers did not have any general causation opinion after the exclusion of their “expert,” summary judgment was proper because the Coopers were unable to meet their prima facie burden of proving general causation. The Coopers’ other assignment of error on the denial of a motion to strike was also overruled and BASF and Akron Pest’s cross-assignments of error were rendered moot by the Ninth District’s decision.