                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 97-4098
                                      ___________
Richard Bednar, Jr.; Laura Bednar,         *
Individually and as Next Friends of        *
Marian Kristen Bednar,                     * Appeal from the United States
                                           * District Court for the
            Plaintiffs-Appellants,         * Eastern District of Arkansas.
                                           *
   v.                                      *
                                           *
Bassett Furniture Manufacturing            *
Company, Inc.,                             *

            Defendant-Appellee.
                                      ___________

                             Submitted: April 16, 1998
                                 Filed: June 24, 1998
                                  ___________

Before BOWMAN, Chief Judge,1 McMILLIAN, and MURPHY, Circuit Judges.
                             ___________

MURPHY, Circuit Judge.

       Richard and Laura Bednar brought this action against Bassett Furniture
Manufacturing, Inc., (Bassett) based on diversity of citizenship, 28 U.S.C. § 1332,
alleging that a dresser it had manufactured emitted dangerous levels of formaldehyde




        1
       The Honorable Pasco M. Bowman became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 18, 1998.
which injured their baby, Marian Kristen. They appeal from a summary judgment in
favor of Bassett. We reverse and remand.

       The Bednars purchased the Bassett dresser from Montgomery Ward prior to the
birth of Marian for the room they were preparing for the expected baby. They installed
the dresser in the room and put various baby clothes, linens, and blankets in it. Several
family members noticed the dresser had what they described as a “new” smell. Marian
was born on September 26, 1994 with no health problems and was taken to her room
at home a few days later. The noticeable odor was still coming from the dresser, and
by this time it had permeated the clothes and linens stored in it.

       Marian soon began to suffer from unusually rapid breathing and redness in her
eyes. Despite repeated visits to the doctor, the problems persisted and the Bednars
began to suspect that they were related to the dresser. In late November Marian’s
breathing problems worsened and caused her parents to take her to the hospital and to
contact poison control. They removed the dresser from Marian’s room when they
returned from the hospital, and her respiratory difficulty and eye inflammation began
to subside. She was nevertheless hospitalized again on December 1, and she continued
to suffer chronic kidney infections that did not respond to normal antibiotic treatments
and she developed reactive asthma and gastrointestinal reflux. The Bednars noticed
that Marian seemed irritable and hyperactive, grew quite slowly, and developed several
allergies that required almost daily shots to control.

      The Bednars filed suit against Bassett and Montgomery Ward, raising claims of
negligence, strict product liability, and breach of the implied warranties of
merchantability and fitness for a particular purpose under the Uniform Commercial
Code. The district court administratively terminated the action against Montgomery
Ward after an automatic bankruptcy stay went into effect, and subsequently Bassett
moved for summary judgment after there had been substantial discovery.



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        The Bednars provided a variety of evidence to support their claims. Dr. Thomas
Rimmer, an industrial hygienist, tested the dresser for formaldehyde emission. He
testified at his deposition about the test findings, as well as the levels of formaldehyde
exposure that have been found to cause various health problems. Guidelines developed
by government and industry for formaldehyde exposure and its effects relied on by Dr.
Rimmer were also put in the record. Evidence about the emission of formaldehyde from
Bassett products was produced from its employee Wayne Atkins, its retained expert, Dr.
Henry Simmons, and its internal testing reports. The baby’s treating physicians, Dr.
Christian Lindsey and Dr. Alfred Johnson, gave their diagnosis that she suffered from
the effects of acute formaldehyde exposure, and several family members described her
symptoms and the chemical odors coming from the dresser.

        The district court granted summary judgment on the basis that the Bednars had not
made a sufficient showing that the dresser’s emission of formaldehyde proximately
caused Marian’s physical problems, citing Wright v. Willamette Industries, Inc., 91 F.3d
1105 (8th Cir. 1996). Summary judgment is reviewed de novo, Unigroup v. O’Rourke
Storage & Transfer, 980 F.2d 1217, 1219 (8th Cir. 1992), and is appropriate only if there
is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). The key question here is whether the evidence,
viewed in the light most favorable to the Bednars, could support a finding of causation
in their favor. Matsushita Electrical Industrial Co., v. Zenith Radio, 475 U.S. 574, 587
(1986).

        Wright was also a toxic tort case involving Arkansas law. The plaintiffs there had
prevailed at trial but lost on appeal because they had not made a submissible case of
causation. In Wright the court explained that a plaintiff in such a case must establish
both “the levels of exposure that are hazardous to human beings generally” and “the
plaintiff’s actual level of exposure to the defendant’s toxic substance.” 91 F.3d at 1106.
The plaintiffs in Wright failed to meet either requirement. Although their theory of
recovery rested on the effects of formaldehyde in wood fibers, they produced no



                                          -3-
evidence about what level of exposure to such fibers would be harmful or about what
amount of formaldehyde was in the wood fibers present in their house. Id at 1107.
Their experts testified about the level of gaseous formaldehyde that would have adverse
effects, but they did “not claim to have been injured from breathing gaseous
formaldehyde.” Id. They could not recover because they had not shown that they had
been exposed to a hazardous level of formaldehyde from the fibers.

       The Bednars’ theory of recovery was based on hazardous levels of gaseous
formaldehyde emanating from the dresser manufactured by Bassett, and they supplied
substantial evidence to meet both Wright requirements. They produced evidence that
the threshold limit of safe exposure to gaseous formaldehyde approved by the American
Conference of Governmental Industrial Hygienists is 0.3 parts per million (PPM), that
the average safety limit set by the National Institute for Occupational Safety & Health
for an eight hour period is 0.016 PPM and 0.1 PPM for any individual fifteen minute
exposure, and that the safety limit recognized by the Occupational Safety and Health
Administration is 0.75 PPM for an eight hour average and 0.2 PPM for any fifteen
minute period. Dr. Rimmer testified that irritation of the eyes and respiratory system
could be triggered by exposure over 0.1 PPM, that diminished lung capacity and asthma
could follow prolonged exposure to amounts over 0.24 PPM, and that the risk of cancer
would increase from exposure ranging from 0.10 to 0.07 PPM. Dr. Simmons, Bassett’s
own expert, testified that exposure to formaldehyde at a level of 0.10 PPM or more could
cause adverse health effects, and Bassett’s safety documents indicated that acute
exposure could trigger irritation of the eyes, respiratory system, and digestive tract.

      In this case there was testing of the formaldehyde source, and the Bednars
produced evidence that Marian was actually exposed to dangerous levels of gaseous
formaldehyde. Before conducting his tests Dr. Rimmer removed the covering that had
been placed on the dresser while it was in storage and then left the dresser in the open
for two days. The test results indicated that the air in the dresser drawers contained




                                         -4-
gaseous formaldehyde at a level of 0.35 PPM. Dr. Rimmer testified as to the levels of
formaldehyde that are considered unsafe and that the dresser was emitting gaseous
formaldehyde, that formaldehyde collects and concentrates in the air over time, and that
the gaseous formaldehyde in the drawers exceeded accepted safe limits. His testimony
was based on his tests and recognized health standards and scientific literature. See
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 709 (1993). Although Bassett
argues that the formaldehyde in the dresser would have concentrated after it was covered
for storage, the dresser was left in open air for two days before testing. Dr. Rimmer
testified that the formaldehyde emission rate from a new product would decrease rapidly
over time which made it impossible to recreate the exact conditions in Marian’s room
after the fact, but he also testified that the formaldehyde gas would have concentrated
in the air in the room and that the concentration of formaldehyde gas in the dresser
drawers exceeded recommended exposure levels. The evidence put in the record
provided a sufficient basis from which a trier of fact could infer that the baby’s exposure
to gaseous formaldehyde exceeded safe levels.

        Additional evidence of Marion’s exposure was present from other sources. Bassett
employee Atkins testified that the dresser was constructed of medium density fiberboard
which has the highest formaldehyde emission rate of any pressed wood product and that
company tests of the batch of fiberboard used in the dresser showed it had an unusually
high formaldehyde emission rate. Both Dr. Simmons and Dr. Rimmer testified that
clothes and linens stored in the dresser would absorb formaldehyde, and the
concentration of formaldehyde gas in the drawers exceeded safe levels according to Dr.
Rimmer’s tests. Dr. Lindsey’s reaction upon examining baby clothes from the dresser
at the time he was treating Marion was, “[d]amn, that’s a chemical odor.” Marian’s
grandmother reported that her eyes burned after she used a towel stored in the dresser,
and her aunt testified that she noticed a chemical odor whenever she was in the baby’s
room and that the clothes and other items stored in the dresser smelled of it. Dr. Johnson
testified that the baby had elevated levels of antibodies in her blood indicating recent
exposure to formaldehyde. He diagnosed her



                                           -5-
illness as caused by “toxic effects of formaldehyde exposure.” Bassett’s expert, Dr.
Simmons, also admitted that Marian’s elevated level of antibodies and symptoms of
respiratory distress and redness around the eyes were consistent with formaldehyde
exposure.

       Based on this evidence, a jury could infer that it was more likely than not that
baby Marian’s illnesses were caused by exposure to unsafe levels of formaldehyde
emanating from the dresser. The Bednars did not need to produce “a mathematically
precise table equating levels of exposure with levels of harm” in order to show Marian’s
level of exposure to gaseous formaldehyde, but only “evidence from which a reasonable
person could conclude that [the] defendant’s emission has probably caused” the harm
about which they complain. Wright, 91 F.3d at 1107. The Bednars had to make a
threshold showing that the dresser exposed the baby to levels of gaseous formaldehyde
known to cause the type of injuries she suffered. This they did.

       Since the Bednars produced a submissible case on causation, summary judgment
should not have been granted. Whether they can prevail on the merits remains to be
seen, and Bassett may well persuade the trier of fact of its position. In the meantime,
however, the summary judgment is reversed, and the case is remanded for further
proceedings consistent with this opinion.

      A true copy.

             Attest:

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




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