[Cite as Cooper v. BASF, Inc., 2013-Ohio-2790.]


STATE OF OHIO                    )                     IN THE COURT OF APPEALS
                                 )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

LARRY COOPER, et al.                                   C.A. No.   26324

        Appellants

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
BASF, INC., et al.                                     COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellees                                      CASE No.   CV 2010-06-4340

                                DECISION AND JOURNAL ENTRY

Dated: June 28, 2013



        MOORE, Presiding Judge.

        {¶1}    Plaintiffs-Appellants, Larry and Margaret Cooper (“the Coopers”), appeal from

the February 3, 2012 judgment entry of the Summit County Court of Common Pleas. We affirm.

                                                  I.

        {¶2}    This matter stems from an alleged misapplication of Termidor SC, a product

manufactured by Defendant-Appellee, BASF, Inc., and applied by Defendant-Appellee, Akron

Pest Control Company. The record indicates that the Coopers contacted Akron Pest Control

Company due to a termite infestation in various parts of their Flanders Avenue home. In April of

2008, Akron Pest Control Company applied Termidor SC, which contains the chemical fipronil,

inside an open wall in the Coopers’ bedroom, underneath a bathroom drain which is accessed

through an opening under a sink cabinet, and around the perimeter of the house.

        {¶3}    On July 11, 2008, Mrs. Cooper was hospitalized due to weakness, memory loss,

cognitive issues, tremors, and psychological/personality changes.     She was diagnosed with
                                                2


hypothyroidism and encephalopathy of unknown etiology, possible pesticide exposure. On July

16, 2008, Mrs. Cooper was hospitalized again due to convulsions and diagnosed with acute

psychotic reaction, hypothyroidism, possible exposure to pesticides of unknown significance,

and metabolic encephalopathy. Approximately one year later, Mrs. Cooper was diagnosed with

hypothyroidism caused by Hashimoto’s thyroiditis.

       {¶4}    The Coopers filed a complaint alleging: (1) negligence against BASF, Inc., and

Akron Pest Control Company, (2) products liability claims against BASF, Inc. and Akron Pest

Control Company, and (3) fraud against Akron Pest Control Company.

       {¶5}    In November of 2010, the trial court ordered the Coopers to identify one or more

expert witnesses who would support their theory of general and specific causation in this matter.

Further, the trial court required the Coopers to “submit either a letter or an affidavit of the

expert(s) indicating that he/she/they are prepared to testify that [Termidor SC] generally is

capable of causing the medical conditions about which [Mrs.] Cooper complains and that in this

specific instance there is a good faith basis for believing that her conditions were caused by her

exposure to [Termidor SC].”

       {¶6}    The Coopers identified Richard L. Lipsey, Ph.D., as their general causation

expert, and Lawrence J. Guzzardi, M.D., as their specific causation expert. Additionally, the

Coopers submitted Dr. Lipsey’s affidavit on general causation, which was relied upon by Dr.

Guzzardi in forming his opinion on specific causation.

       {¶7}    BASF, Inc. and Akron Pest Control Company filed several motions, including:

individual motions for summary judgment, a joint motion for summary judgment on the issue of

medical causation, a joint motion to exclude the opinions and testimony of Dr. Lipsey, and a

joint motion to exclude the opinions and testimony of Dr. Guzzardi.
                                                  3


       {¶8}    In granting BASF, Inc. and Akron Pest Control Company’s motions for summary

judgment on all claims, the trial court stated:

       ***

       After carefully reviewing Dr. Lipsey’s deposition, the Court finds that he has not
       based his opinion regarding general medical causation on reliable scientific,
       technical, or other specialized information. None of the articles or studies he
       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. 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.

       The animal studies cited by Dr. Lipsey fail to establish any correlation across
       species. Dr. Lipsey admitted that rat studies on Fipronil exposure are not
       appropriate models for humans. Like the experts in the Valentine case, Dr. Lipsey
       would be required to extrapolate from the conclusions of the underlying materials
       to reach an opinion regarding general medical causation as to Mrs. Cooper. In
       summary, Dr. Lipsey has no reliable scientific bases upon which to base his
       expressed opinion. For this reason, the Court cannot consider Dr. Lipsey’s
       opinion as to general medical causation.

       Without general causation having been established, the court need not examine
       specific causation testimony as it is unwarranted.

       ***

       {¶9}    The Coopers appealed, raising two assignments of error for our consideration. In

their cross-appeals, BASF, Inc. and Akron Pest Control Company also each raised three

assignments of error.
                                                 4


                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED, BOTH AS A MATTER OF LAW AND AS A
       MATTER OF DISCRETION, BY GRANTING SUMMARY JUDGMENT TO
       [BASF, INC. AND AKRON PEST CONTROL COMPANY] ON ALL OF [THE
       COOPERS’] CLAIMS.

       {¶10} In their first assignment of error, the Coopers argue that the trial court abused its

discretion in excluding the opinion and testimony of Dr. Lipsey and granting summary judgment,

on all claims, in favor of BASF, Inc. and Akron Pest Control Company. We disagree.

       {¶11} Evid.R. 702 governs the admissibility of expert testimony. Miller v. Bike Athletic

Co., 80 Ohio St.3d 607, 610 (1998). The rule provides that:

       A witness may testify as an expert if all of the following apply:

        (A) The witness’ testimony either relates to matters beyond the knowledge or
       experience possessed by lay persons or dispels a misconception common among
       lay persons;

        (B) The witness is qualified as an expert by specialized knowledge, skill,
       experience, training, or education regarding the subject matter of the testimony;

       (C) The witness’ testimony is based on reliable scientific, technical, or other
       specialized information. To the extent that the testimony reports the result of a
       procedure, test, or experiment, the testimony is reliable only if all of the following
       apply:

       (1) The theory upon which the procedure, test, or experiment is based is
       objectively verifiable or is validly derived from widely accepted knowledge, facts,
       or principles;

       (2) The design of the procedure, test, or experiment reliably implements the
       theory;

       (3) The particular procedure, test, or experiment was conducted in a way that will
       yield an accurate result.

Evid.R. 702.    “The qualification and reliability requirements of Evid.R. 702 are distinct.

Because even a qualified expert is capable of rendering scientifically unreliable testimony, it is

imperative for a trial court, as gatekeeper, to examine the principles and methodology that
                                                  5


underlie an expert’s opinion.” Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, ¶ 17.

“In evaluating the reliability of scientific evidence, several factors are to be considered: (1)

whether the theory or technique has been tested, (2) whether it has been subjected to peer review,

(3) whether there is a known or potential rate of error, and (4) whether the methodology has

gained general acceptance.” Miller at 611, citing Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579, 593-594 (1993). The focus must be on whether the expert’s opinion is based

“upon scientifically valid principles[.]” Miller at paragraph one of the syllabus.

       {¶12} Further, “‘[t]he determination of the admissibility of expert testimony is within

the discretion of the trial court * * * [and] will not be disturbed absent [an] abuse of discretion.’”

Finley v. First Realty Property Mgt., Ltd., 185 Ohio App.3d 366, 2009-Ohio-6797, ¶ 9 (9th

Dist.), quoting Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, ¶ 9. An abuse of

discretion means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling.

See Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse-of-

discretion standard, this Court may not substitute its judgment for that of the trial court. See

Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶13} Here, the Coopers sought to have Dr. Lipsey testify as their general causation

expert. If the trial court had permitted Dr. Lipsey’s testimony, he would have opined that

fipronil is capable of causing hypothyroidism in humans. However, Dr. Lipsey reached this

conclusion 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. Further, our review of Dr. Lipsey’s deposition transcript reveals that
                                                 6


he failed to identify the generally accepted methodology upon which he relied in determining

that fipronil is capable of causing hypothyroidism in humans.

       {¶14} In his deposition, Dr. Lipsey testified that: (1) he has never written any peer-

reviewed articles concerning the effects of fipronil or any other pesticide on the human thyroid,

(2) he did not do a differential diagnosis to rule out hypothyroidism or Hashimoto’s thyroiditis as

the cause of Mrs. Cooper’s symptoms, (3) he did not do a dose reconstruction as to the amount of

fipronil Mrs. Cooper was exposed to, (4) he did not find any epidemiology studies in his

literature search relating to fipronil exposure and its effect on the human thyroid, (5) there was

no biological sampling done on Mrs. Cooper’s blood or fatty tissue to prove that she had been

exposed to fipronil, (6) the rat model is not ideal for cross-species comparisons because rats are

more sensitive to thyroid disrupters than humans, (7) in a study of 103 humans exposed to

fipronil, none had any condition relating to their thyroid, and (8) nothing in his PubMed

literature search reflected that fipronil exposure caused hypothyroidism or Hashimoto’s

thyroiditis in humans.

       {¶15} After careful review of Dr. Lipsey’s deposition and the record, we conclude that

the trial court’s decision to exclude Dr. Lipsey’s opinion and testimony was not unreasonable,

arbitrary, or unconscionable because his theory that exposure to fipronil causes hypothyroidism

in humans is not based “upon scientifically valid principles[.]” See Miller, 80 Ohio St.3d 607, at

paragraph one of the syllabus. Thus, the trial court did not abuse its discretion.

       {¶16} Further, the Coopers have argued that the trial court erred in granting summary

judgment, on all claims, in favor of BASF, Inc. and Akron Pest Control Company.

       {¶17} An appellate court reviews an award of summary judgment de novo. Grafton v.

Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). It applies the same standard as the trial court,
                                                7


viewing the facts of the case in the light most favorable to the non-moving party and resolving

any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7,

12 (6th Dist.1983). Pursuant to Civ.R. 56(C), summary judgment is proper if:

       (1) No genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in the favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The moving party bears the initial

burden of informing the trial court of the basis for the motion and pointing to parts of the record

that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280,

292-93 (1996). Specifically, the moving party must support its motion by pointing to some

evidence in the record indicated in Civ.R. 56(C). Id. Once this burden is satisfied, the non-

moving party bears the burden of offering specific facts to show a genuine issue for trial. Id. at

293; Civ.R. 56(E).

       {¶18} In Terry v. Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023, at syllabus, the

Supreme Court of Ohio held:

       1. To present a prima facie case involving an injury caused by exposure to mold
       or other toxic substance, a claimant must establish (1) that the toxin is capable of
       causing the medical condition or ailment (general causation) and (2) that the toxic
       substance in fact caused the claimant’s medical condition (specific causation).

       2. Establishing general causation and specific causation in cases involving
       exposure to mold or other toxic substances involves a scientific inquiry, and thus
       causation must be established by the testimony of a medical expert.

       3. Without expert testimony to establish both general causation and specific
       causation, a claimant cannot establish a prima facie case of exposure to mold or
       other toxic substance.

       {¶19} The record indicates that the Coopers have exclusively relied upon the opinion

and testimony of Dr. Lipsey to prove general causation in this case. Having previously concluded
                                                8


that the trial court did not abuse its discretion in excluding Dr. Lipsey’s opinion and testimony,

the Coopers have no evidence of causation to support their claims that Mrs. Cooper’s exposure to

fipronil, a chemical component of Termidor SC, caused her medical conditions of

hypothyroidism and Hashimoto’s thyroiditis. As such, “there can be ‘no genuine issue as to any

material fact,’ since a complete failure of proof concerning an essential element of the

nonmoving party’s case necessarily renders all other facts immaterial.” Dresher, 75 Ohio St.3d at

288, quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). See also Finley, 2009-

Ohio-6797, ¶ 30. Therefore, as a matter of law, the Coopers are unable to meet their prima facie

burden of proving general causation. Accordingly, BASF, Inc. and Akron Pest Control are

entitled to summary judgment on all claims.

       {¶20} The Coopers’ first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED, AND ABUSED ITS DISCRETION, BY
       DENYING [THE COOPERS’] MOTION TO STRIKE THE REPLY BRIEFS
       FILED BY [BASF, INC. AND AKRON PEST CONTROL COMPANY].

       {¶21} In their second assignment of error, the Coopers argue that the trial court erred in

denying their motion to strike BASF, Inc.’s and Akron Pest Control Company’s reply briefs.

Specifically, the Coopers argue that BASF, Inc. and Akron Pest Control Company made new

arguments and submitted additional evidentiary materials in their reply briefs, to which the

Coopers were unable to respond.

       {¶22} “A trial court’s decision to grant a motion to strike will not be overturned on

appeal absent an abuse of discretion.” Nationwide Life Ins. Co. v. Kallberg, 9th Dist. No.

06CA008968, 2007-Ohio-2041, ¶ 20, quoting Matthews v. D’Amore, 10th Dist. No. 05AP-1318,

2006-Ohio-5745, ¶ 25. “Moreover, because the trial court retains broad discretion in the
                                                 9


admission or exclusion of evidence, an appellate court will not overturn the trial court’s ruling on

a motion to strike in the absence of material prejudice to the appellant.” Wallner v. Thorne, 189

Ohio App.3d 161, 2010-Ohio-2146, ¶ 17 (9th Dist.), citing Nationwide Life Ins. Co. v. Kallberg,

9th Dist. No. 06CA008968, 2007-Ohio-2041, ¶ 20. As stated above, an abuse of discretion

indicates that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. See

Blakemore, 5 Ohio St.3d at 219.

       {¶23} Here, BASF, Inc. and Akron Pest Control Company asked the trial court for leave

to file an additional affidavit to correct an error in BASF, Inc.’s and Akron Pest Control

Company’s joint motions for summary judgment on the issue of medical causation and to

exclude the opinion and testimony of Richard L. Lipsey, and in BASF, Inc.’s motion for

summary judgment. During the course of discovery, the Coopers had been propounded with

requests for admissions, including that Dr. Lipsey had a general causation opinion as to

Hashimoto’s thyroiditis (Request Number 14), and that Dr. Lipsey had a general causation

opinion as to hypothyroidism (Request Number 15). In the affidavit attached to their reply brief,

an attorney for BASF, Inc. attested that in preparing the motions, he inadvertently switched the

Coopers’ response to Request for Admission No. 15 with Request for Admission No. 14. Also,

in order to evidence an alleged misrepresentation by the Coopers’ attorney, BASF, Inc. and

Akron Pest Control Company asked for leave to attach a copy of a “Fipronil Fact Sheet.”

Finally, BASF, Inc. asked for leave to file an additional affidavit refuting one of the Coopers’

arguments asserted in their memoranda in opposition to the motions for summary judgment and

motions to exclude Drs. Lipsey’s and Guzzardi’s opinions and testimony.

       {¶24} The Coopers moved to strike the reply briefs and for the court to disallow any

additional evidence. The trial court granted BASF, Inc. and Akron Pest Control Company leave
                                                10


to file the additional evidence and denied the Coopers’ motion to strike stating: “[c]ontrary to the

[Coopers’] contention, the addition of such Rule 56 evidence will not result in ‘summary

judgment by ambush.’       Rather, these items correct scrivener errors and address specific

allegations raised by the [Coopers] in their global response to the motions.”

       {¶25} Upon review of the record, we conclude that the trial court did not abuse its

discretion in allowing the additional evidence and denying the Coopers’ motion to strike.

However, even assuming that the trial court erred, we conclude the error is harmless. In the first

assignment of error, we stated that summary judgment was appropriate because the Coopers are

unable to meet their prima facie burden of proving general causation: that fipronil causes

hypothyroidism/Hashimoto’s thyroiditis in humans. As such, the trial court’s denial of the

motion to strike did not materially prejudice the Coopers in this matter.

       {¶26} The Coopers’ second assignment of error is overruled.

BASF, INC.

                            CROSS-ASSIGNMENT OF ERROR I

       [BASF, INC.] IS ENTITLED TO JUDGMENT AS A MATTER OF LAW
       BECAUSE [THE COOPERS] LACKED ANY ADMISSIBLE EXPERT
       OPINION EVIDENCE AS REQUIRED TO ESTABLISH SPECIFIC MEDICAL
       CAUSATION.

                            CROSS-ASSIGNMENT OF ERROR II

       [BASF, INC.] IS ENTITLED TO JUDGMENT AS A AMATTER OF LAW
       BECAUSE [THE COOPERS’] CLAIMS ARE PREEMPTED BY THE
       FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT.

                           CROSS-ASSIGNMENT OF ERROR III

       [BASF, INC.] IS ENTITLED TO JUDGMENT AS A MATTER OF LAW
       BECAUSE IT DISCHARGED ANY DUTY TO WARN BY ITS
       REASONABLE RELIANCE ON A SOPHISTICATED PURCHASER, []
       AKRON PEST CONTROL [COMPANY][.]
                                               11


AKRON PEST CONTROL COMPANY

                           CROSS-ASSIGNMENT OF ERROR I

       A SPECIFIC CAUSATION EXPERT FAILS TO PROVIDE ADMISSIBLE
       OPINIONS WHEN THE EXPERT CAN CITE TO NO MEDICAL
       LITERATURE SUPPORTING THE OPINIONS AND HAS OPPOSING
       OPINIONS TO THE GENERAL CAUSATION EXPERT. DR. GUZZARDI
       TESTIFIED THAT NO MEDICAL LITERATURE LINKS FIPRONIL TO
       HUMAN THYROID CONDITIONS.       HE DISAGREES WITH THE
       DIAGNOSIS OF HASHIMOTO’S THYROIDITIS, IN CONFLICT WITH THE
       GENERAL CAUSATION EXPERT.       WAS SUMMARY JUDGMENT
       APPROPRIATE WHEN THE OPINION OFFERED BY THE SPECIFIC
       CAUSATION EXPERT LACKS SCIENTIFIC FOUNDATION?

                           CROSS-ASSIGNMENT OF ERROR II

       IN A TOXIC EXPOSURE CASE, [THE COOPERS] MUST SHOW ACTUAL
       EXPOSURE AND AN ADVERSE REACTION TO ESTABLISH PROXIMATE
       CAUSE. [THE COOPERS] DID NOT COME INTO DIRECT CONTACT
       INTERIORLY OR EXTERIORLY AND DID NOT INHALE THE
       SUBSTANCE THAT IS NEITHER GAS NOR VAPOR AT ROOM
       TEMPERATURE. WAS SUMMARY JUDGMENT APPROPRIATE WHEN
       THERE IS NO EVIDENCE TO ESTABLISH THAT [THE COOPERS] CAME
       IN CONTACT WITH A PESTICIDE IN SUCH A MANNER AS WOULD
       LEAD TO AN ADVERSE REACTION?

                          CROSS-ASSIGNMENT OF ERROR III

       FRAUD REQUIRES A KNOWINGLY FALSE STATEMENT MADE BY A
       PARTY WITH THE INTENT TO HAVE OTHERS RELY UPON THE
       STATEMENTS. TOM WHITTIS BELIEVED THAT NO ADVERSE EFFECT
       WOULD OCCUR TO HUMANS FROM EXPOSURE TO FIPRONIL. WAS
       SUMMARY JUDGMENT APPROPRIATE WHEN THE SEMINAL
       ELEMENTS OF FRAUD CANNOT BE ESTABLISHED?

       {¶27} As to BASF, Inc.’s and Akron Pest Control Company’s cross-assignments of

error, based upon our resolution of the Coopers’ first assignment of error, we conclude that they

are moot. See App.R. 12(A)(1)(c).
                                                12


                                                III.

       {¶28} In overruling both of the Coopers’ assignments of error, and rendering BASF,

Inc.’s and Akron Pest Control Company’s cross-assignments of error moot, the judgment of the

Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                       CARLA MOORE
                                                       FOR THE COURT



WHITMORE, J.
HENSAL, J.
CONCUR.
                                        13


APPEARANCES:

MICHAEL A. PARTLOW, Attorney at Law, for Appellants.

THOMAS R. WOLF, Attorney at Law for Appellee.

TIMOTHY J. COUGHLIN, JOHN R. MITCHELL, and CHRISTOPHER J. KLASA, Attorneys
at Law, for Appellee.
