                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
      ___________

      No. 01-2246
      ___________

Troy Mattis; Patricia Mattis,        *
                                     *
                   Appellees,        *
                                     *
      v.                             *
                                     *
Carlon Electrical Products; Lamson   *
and Sessions; Oatey Company,         *
                                     *
                  Appellants.        *
                                         Appeals from the United States
                                         District Court for the
                                         District of South Dakota.
      ___________

      No. 01-2450
      ___________


Troy Mattis; Patricia Mattis,        *
                                     *
                  Appellants,        *
                                     *
      v.                             *
                                     *
Carlon Electrical Products; Lamson   *
and Sessions; Oatey Company,         *
                                     *
                   Appellees.        *
                                   ___________

                             Submitted: May 16, 2002

                                  Filed: July 10, 2002
                                   ___________

Before LOKEN, HEANEY, and MURPHY, Circuit Judges.
                           ___________

HEANEY, Circuit Judge.

       Following a jury verdict in favor of appellee Troy Mattis, appellants Carlon
Electrical Products, Lamson and Sessions, and Oatey Co. challenge the district
court’s evidentiary rulings and its refusal to grant judgment as a matter of law in
appellants’ favor. We affirm.

I.    Background

       In the summer of 1995, Mattis was 25 years old and was working as an
apprentice electrician. At the beginning of the summer, he had a well-documented
history of good health.1 On July 13, Mattis worked on a project near Wagner, South
Dakota and used Carlon All Weather Quick Set Cement (“Carlon cement”). Carlon
cement is manufactured by Oatey Co., and it is labeled and sold by Carlon Electrical
Products, a business unit of Lamson and Sessions. Carlon cement includes six


      1
        Mattis was a member of the National Guard and 1987 and 1988, he underwent
rigorous physical exams for that position. Those exams revealed no sign of
respiratory disease. In addition, in 1994, his wife sought to open a day care center,
so pursuant to state licensing rules, Mattis was tested for tuberculosis. He tested
negative and an x-ray of his chest demonstrated that he had “no sign of acute or
chronic pulmonary disease.” Appellee’s Appendix at 6. Mattis does not smoke or
chew tobacco.

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ingredients, four of which are respiratory irritants: tetrahydrofuran, acetone,
cyclohexanone, and methyl ethyl ketone.

       On July 13, 1995, Mattis spent most of the day outside laying ten foot sections
of three-quarter inch polyvinyl chloride (pvc) pipe in a trench that was six inches
wide and eighteen inches deep. The temperature was 109 degrees. After laying the
sections of pipe, he worked on his hands and knees using Carlon cement to connect
the sections. Before performing this work, Mattis read the safety warnings on the
label of the Carlon cement.2 When Mattis was not using the glue, he put the lid back
on the can according to his supervisor’s instructions. The can sat in the sun when not
in use. To reopen the can of cement, Mattis held it close to his chest and opened the
lid. As he did this, the can made sizzling sounds, like a can of soda-pop. He testified
that he opened the can at least ten to twelve times during the course of the day.

       On the morning of July 14, 1995, Mattis woke up with a severe headache,
nausea, vomiting, and soreness in his chest. Nevertheless, he returned to work and
again used the Carlon cement. On Saturday morning, July 15, Mattis awoke with
another severe headache, continued nausea, and tightness in his chest. His symptoms
were worsening, and it was difficult for him to breathe. On Sunday, he went to a
doctor and was treated for dehydration and released. He called in sick on Monday
and went to see another doctor on Tuesday. His physician, Dr. Weber, admitted him
to the hospital, where he stayed for six days. X-rays of his chest were taken on July


      2
          The label stated: “Danger: extremely flammable • harmful or fatal if
swallowed • vapor harmful • may irritate eyes and skin • may be absorbed through the
skin. Vapors may cause flash fires. Read precaution on back label.” With regard to
vapors, the back of the label stated: “Vapors may ignite explosively. Prevent build-up
of vapors – open all windows and doors – use only with cross-ventilation. . . . Close
container after use. . . . If inhaled get fresh air. If ill feelings persist, seek medical
attention.” Appellants’ Addendum at 21. Mattis testified that he avoided contact
between the product and his skin in accordance with the label’s warning.

                                           -3-
18, 1995, and again on July 19, 1995. The board certified radiologist, Dr. Frank
Messner, who read the x-ray concluded:

      The patient demonstrates a rather extensive bilateral infiltrate, which has
      a somewhat nodular component to it. . . . The distribution would
      suggest some type of unusual organism or cause. . . . IMPRESSION.
      Fairly extensive bilateral infiltrates suspicious for unusual pneumonia
      or some type of response to a noxious agent.

Appellee’s App. at 4. Dr. Weber diagnosed Mattis with bilateral pneumonia, reactive
airways disease, and exposure to PVC glue fumes, among other things. Dr. Weber
referred Mattis to Dr. Hansen, a board certified pulmonologist. She first met with
Mattis on August 18, 1995. At that time, she performed a differential diagnosis using
a specific medical methodology for reactive airways dysfunction syndrome (RADS).
After performing the differential diagnosis, Dr. Hansen diagnosed Mattis with RADS
and concluded that it was caused by his inhalation of the Carlon cement fumes.

      Since his release from the hospital, Mattis has experienced persistent
intermittent symptoms and some decline in his lung function. He must avoid
exposure to irritants such as smoke, dust, chemical odors, and extremes in
temperatures. Because of his health problems and work restrictions, he gave up
working as an electrician.

      Mattis and his wife brought a cause of action in federal court against Oatey,
Carlon, and Lamson and Sessions claiming negligence, strict liability based on failure
to warn, and negligence per se. The jury returned a verdict in favor of Mattis in the
amount of $600,000 and in favor of his wife for $300,000 on her loss of consortium
claim. Following the verdict, the defendants filed a renewed motion for judgment as
a matter of law and a motion for a new trial. The district court denied these motions
and Carlon, Oatey, and Lamson and Sessions appeal.



                                         -4-
II.   Discussion

       Appellants raise four issues on appeal. They contend that the district court
erred in refusing to grant judgment as a matter of law in their favor because: (1)
Mattis failed to establish causation; and (2) he failed to establish liability on the
failure to warn claim. Appellants also maintain that the district court erred in
excluding the results of field studies Oatey conducted after Mattis’s injury, and that
the court erred in admitting reports of health problems caused by Carlon cement.

      A. Causation

       We first address appellants’ argument that the district court should have
granted judgment as a matter of law in their favor because the expert testimony
offered by Mattis failed to prove that his exposure to Carlon cement caused his
illness. We review de novo the district court’s denial of a motion for judgment as a
matter of law and view the facts in the light most favorable to the nonmoving party.
Cardenas v. AT & T Corp., 245 F.3d 994, 998 (8th Cir. 2000) (citation omitted).
Judgment as a matter of law is only appropriate when no reasonable jury could have
found for the nonmoving party. Id. (citation omitted).

      “To prove causation in a toxic tort case, a plaintiff must show both that the
alleged toxin is capable of causing injuries like that suffered by the plaintiff in human
beings subjected to the same level of exposure as the plaintiff, and that the toxin was
the cause of the plaintiff's injury.” Bonner v. ISP Techs., 259 F.3d 924, 928 (8th Cir.
2001) (citing Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1106 (8th Cir. 1996)).
To meet his burden of proving causation, Mattis presented the testimony of two
expert witnesses, Dr. Hansen, his treating pulmonologist, and Roger Wabeke, an
industrial hygienist. The district court found that this testimony, in addition to the
testimony by appellants’ expert, Dr. Kapp, was sufficient for a reasonable jury to find
that Mattis’s exposure to the organic solvents in Carlon cement was capable of

                                          -5-
causing RADS and that exposure to those solvents did, in fact, cause his illness. We
agree. Dr. Kapp admitted that the organic solvents in Carlon cement were capable
of causing RADS at high exposure levels. Wabeke’s testimony established that
Mattis was exposed to dangerous levels of those organic solvents, and Dr. Hansen’s
testimony provided evidence that Mattis’s exposure to the organic solvents in the
cement caused him to develop RADS.

        Appellants argue, however, that Dr. Hansen’s and Wabeke’s testimony was
insufficient as a matter of law to establish causation. They fault Wabeke’s testimony
because he could not determine Mattis’s exact exposure level. To prove exposure
levels, plaintiffs need not produce a “‘mathematically precise table equating levels
of exposure with levels of harm.’” Bednar v. Bassett Furniture Mfg. Co., 147 F.3d
737, 740 (8th Cir. 1998) (quoting Wright, 91 F.3d at 1107). Rather, a plaintiff need
only make a threshold showing that he or she was exposed to toxic levels known to
cause the type of injuries he or she suffered. Id. Wabeke testified that experts have
known for a long time that the organic solvents in Carlon cement are respiratory
irritants capable of injuring respiratory mucous membranes in the nostrils, throat,
trachea, and lungs. In addition, Wabeke used a vapor concentration test to determine
whether Mattis was exposed to a dangerous level of fumes. To perform the test,3 he
heated a can of Carlon cement to 112 degrees and cut PVC pipe into five inch
sections. He then transferred the pipe and the cement to an air sampling chamber and
spread the cement on the pipe. The test showed that the solvent vapors accumulated
rapidly at extreme concentrations, far in excess of safe exposure levels. At trial,
Wabeke noted that Mattis’s exposure levels would have been higher than the levels
in his test because the hissing and sizzling sounds the can made indicated that it was
hotter than 112 degrees. This evidence is admissible and created a question of fact



      3
          Wabeke testified that he has used this methodology for twenty-five years and
that it is a well-accepted method among industrial hygienists.

                                         -6-
for the jury about whether Mattis was exposed to an unsafe level of fumes, capable
of causing respiratory problems.

       Next, appellants argue that Dr. Hansen’s testimony was legally insufficient.
We disagree. A medical opinion based upon a proper differential diagnosis is
sufficiently reliable to satisfy Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
593-94 (1993). Turner v. Iowa Fire Equip., Co., 229 F.3d 1202, 1208 (8th Cir. 2000).
Dr. Hansen performed a valid differential diagnosis to determine that Mattis’s
exposure to the cement caused his RADS. Cf. id. (noting that a proper differential
diagnosis is one that identifies the cause of a medical condition by eliminating the
likely causes until the most probable cause is isolated). While treating Mattis, Dr.
Hansen ruled out other possible causes of Mattis’s illness, such as smoking, asthma,
or ammonia, and concluded that he developed RADS as a result of his exposure to
Carlon cement fumes. She also relied on published studies linking RADS to organic
solvents like those in Carlon cement. This testimony was properly admitted at trial
and by relying on it, a reasonable jury could find that exposure to Carlon cement was
the cause of Mattis’s injury.

      Appellants also fault Dr. Hansen’s testimony because she could not identify
Mattis’s exposure level. As stated, exposures levels were adequately proven by
Wabeke’s testimony. The district court properly admitted the testimony of Wabeke
and Dr. Hansen and properly held that there was sufficient evidence from which a
reasonable jury could find that fumes from the Carlon cement caused Mattis’s injury.

      B.     Federal Hazardous Substances Act

      Next, appellants complain that the district court erred in refusing to grant their
motion for judgment as a matter of law on Mattis’s failure to warn claim. They argue
that Mattis failed to prove a violation of the Federal Hazardous Substances Act
(FHSA) and, therefore, cannot prevail. The FHSA was enacted in 1960 to “‘provide

                                          -7-
nationally uniform requirements for adequate cautionary labeling of packages of
hazardous substances which are sold in interstate commerce and are intended or
suitable for household use.’” Milanese v. Rust-Oleum Corp., 244 F.3d 104, 109 (2d
Cir. 2001) (quoting House Comm. on Interstate and Foreign Commerce, Federal
Hazardous Substances Labeling Act, H.R. Rep. No. 1861, 86th Cong., 2d Sess. 2
(1960), reprinted in 1960 U.S.C.C.A.N. 2833, 2833). As enacted, the FHSA did not
mention federal preemption, but the 1966 Amendments to the Act added a provision
to preempt any state cause of action that seeks to impose a labeling requirement
different from the requirements in the FHSA or the regulations promulgated
thereunder. See 15 U.S.C. § 1261 note (b)(1)(A) (“no state . . may establish or
continue in effect a cautionary labeling requirement applicable to such substance or
packaging and designed to protect against the same risk of illness unless such
cautionary labeling requirement is identical to the labeling requirement under [this
Act]”); see also Moss v. Parks Corp., 985 F.2d 736, 739 (4th Cir. 1993). Other
circuits interpreting this provision have held that a plaintiff may not bring a claim for
failure to warn based on state requirements that are more elaborate than the FHSA;
however, a common law tort action based on failure to warn may be brought for non-
compliance with the federal labeling requirements. See e.g. Milanese, 244 F.3d at
109-110; Moss, 985 F.2d at 740. Similarly, our circuit has held that “when a statute
only preempts state requirements that are different from or in addition to those
imposed by federal law, plaintiffs may still recover under state tort law when
defendants fail to comply with the federal requirements.” National Bank of
Commerce of El Dorodo v.Kimberly-Clark Corp., 38 F.3d 988, 993 (8th Cir. 1994).
Therefore, in order to prevail on his failure to warn claim, Mattis had the burden of
proving the Carlon cement label did not comply with the FHSA.

       The FHSA requires that a warning label contain, among other things, the
following information: “(E) an affirmative statement of the principal hazard or
hazards, such as . . . ‘Vapor Harmful’ . . . ; (F) precautionary measures describing the
action to be followed or avoided. . . ; (I) instructions for handling and storage. . . ; and

                                            -8-
(J) the statement (i) ‘Keep out of the reach of children.’” 15 U.S.C. § 1261(p)(1).
The district court held that there was a question of fact for the jury about whether
these requirements were met because the label did not state “[k]eep out of the reach
of children” and because the evidence about the harmful effects of Carlon cement
called into question whether the label’s statements about principal hazards,
precautionary measures, or instructions for handling were inadequate. We agree.
Although the label stated “vapor harmful,” this warning was followed by the
statements, “may irritate eyes and skin” and “vapors may cause flash fires.” The label
does not make it clear that inhalation of the vapors is harmful. The label did not state
handling instructions or specify any precautionary measures regarding inhalation of
fumes from the cement other than to say, “if inhaled, get fresh air.” Moreover, the
jury was properly instructed that if the label contained all the information required by
the FHSA, the appellants were not negligent. Neither party objected to this
instruction.4 We find that the court properly refused to grant judgment as a matter
of law on this issue.

      Appellants also argue that even if the label was deficient under the FHSA,
those deficiencies were not the proximate cause of Mattis’s injury. A deficient

      4
         Appellants also argue that Mattis was required to use expert testimony to
prove appellants’ noncompliance with the FHSA, but they cite no case for this
proposition. The district court held that expert testimony is not necessary to show
that a warning is inadequate if the alleged inadequacy of the warning is within the
comprehension of the average layperson. See e.g. Alexander v. Morning Pride Mfg.,
Inc., 913 F. Supp. 362, 371 (E.D. Pa. 1995); Chizmadia v. Smiley’s Point Clinic, 873
F.2d 1163, 1165 (8th Cir. 1989) (“[E]xpert testimony is not necessary where the
matters to be proved fall within an area of common knowledge. . . .”). Although
expert testimony may be necessary to prove noncompliance with the FHSA in some
cases, it was not necessary in this case. In light of the fact that the label did not
contain the requisite “keep out of reach of children” statement and did not state any
precautionary or handling instructions that warned the consumer to avoid fumes, the
jury was capable of finding noncompliance with the FHSA without expert testimony.


                                          -9-
warning cannot be considered the cause of a user’s injury when the user was fully
aware of the danger, see Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1084-85 (8th Cir.
1999), but that rule cannot be applied to the case at hand. Mattis was not an
experienced electrician who should have been aware of the dangers associated with
breathing fumes from hot cement; rather, he was an apprentice electrician. He
testified that he read the label and abided by its instruction not to get the cement on
his skin or in his eyes. He further testified that had the label warned him not to inhale
the fumes, he would not have held the can in his breathing zone to open it. This
evidence was sufficient for a reasonable jury to find that the deficient label was the
proximate cause of Mattis’s injuries.

      C. Evidentiary Issues

       Appellants also appeal the district court’s denial of their motion for a new trial
on the grounds that the district court erroneously excluded field monitoring studies
performed by the appellants and erroneously admitted evidence concerning health
complaints related to Carlon cement. When a motion for new trial is based on rulings
regarding the admissibility of evidence, the district court will not be reversed absent
a clear and prejudicial abuse of discretion. First Sec. Bank v. Union Pac. R.R. Co.,
152 F.3d 877, 879 (8th Cir. 1998) (citation omitted). The field monitoring studies in
question were performed after Mattis’s exposure. They measured the air quality that
two California construction workers breathed while they were working with another
Carlon cement product in trenches outside in 70 degree weather with wind. The
district court excluded the studies because they were performed under significantly
different working conditions and because they used different product types. The
district court concluded that the studies were not substantially similar to Mattis’s
exposure, but they were “confusingly similar.” We agree and find no abuse of
discretion by the district court.




                                          -10-
       Appellants also argue that the district court abused its discretion in admitting
reports from the Rocky Mountain Poison Control Center. The Center received
telephone calls regarding questions or problems relating to consumers’ exposure to
Carlon cement. The district court admitted the Center’s reports because they proved
that the organic solvents in Carlon cement were respiratory irritants and because the
reports were unlikely to confuse the jury. The district court also noted, however, that
the reports could not be used to prove causation. This ruling was not an abuse of
discretion.

III.   Conclusion

       For the reasons stated above, we affirm the district court’s decision.

       A true copy.

             Attest:

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




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