Meyer v. Creative Nail Design, Inc.

No

No. 98-033

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 74

294 Mont. 46

975 P.2d 1264

VALERY Y. MEYER and JEFF C. MEYER,

Plaintiffs and Appellants,

v.

CREATIVE NAIL DESIGN, INC., a foreign corporation; OPI PRODUCTS, INC.,

a foreign corporation; CLAIROL, INC., a foreign corporation; HELENE CURTIS,

INC., a foreign corporation; NEXXUS PRODUCTS COMPANY, a foreign

corporation; THE ADU COMPANY, a foreign corporation; REVLON

PROFESSIONAL PRODUCTS, INC., a foreign corporation; COSMETIC

ARTS, a foreign corporation; AMERICAN INTERNATIONAL, a foreign

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corporation; SEBASTIAN INTERNATIONAL, a foreign corporation;

UNIT CHEMICAL CORPORATION, a foreign corporation; PAUL

MITCHELL (BOCCHI LABORATORIES), MATRIX ESSENTIALS, INC.,

a foreign corporation; MALIBU 2000, a foreign corporation; KING RESEARCH,

INC., a foreign corporation; HIGHLAND CORPORATION, a foreign

corporation; GOLDEN EAGLE CONSTRUCTION CO., INC., a Montana

corporation; PALMER DUNCAN CONSTRUCTION COMPANY, a Montana

corporation; and DOES and ROES ONE THROUGH TEN,

Defendants and Respondents.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

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Jack M. Scanlon, Attorney at Law; Helena, Montana

Leonard J. Haxby, Attorney at Law; Butte, Montana

For Respondents:

Ronald F. Waterman; Gough, Shanahan, Johnson & Waterman;

Helena, Montana (Clairol, Inc.)

Susan P. Roy; Garlington, Lohn & Robinson, PLLP; Missoula,

Montana (OPI Products)

John D. Stephenson; Jardine, Stephenson, Blewett & Weaver, P.C.;

Great Falls, Montana (Creative Nail Design)

Randy J. Cox; Boone, Karlberg & Haddon; Missoula, Montana

(Helene Curtis, Inc.)

John Poston; Harrison, Loendorf & Poston, P.C.; Helena, Montana

(Nexxus Products Company)

Gene A. Picotte, Attorney at Law; Helena, Montana (Adu Company)

Brendon J. Rohan; Poore, Roth & Robinson; Butte, Montana

(King Research, Inc.)

Peter F. Habein; Crowley, Haughey, Hanson, Toole & Dietrich;

Billings, Montana (Sebastian International and Bocchi Laboratories)

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John H. Maynard; Browning, Kaleczyc, Berry & Hoven; Helena,

Montana (Unit Chemical Corporation)

Gary M. Zadick; Ugrin, Alexander, Zadick & Higgins, P.C.;

Great Falls, Montana (John Paul Mitchell Systems)

Dennis P. Clarke; Smith, Walsh, Clarke & Gregoire; Great Falls,

Montana (Matrix Essentials. Inc.)

Michael J. Mulroney; Luxan & Murfitt; Helena, Montana (Malibu 2000)

Curtis G. Thompson; Thompson & Jacobson, P.C.; Great Falls,

Montana; and John J. Soltys; Cozen & O'Connor; Seattle, Washington

(Revlon Professional Products)

Steven W. Reida; Landoe, Brown, Planalp & Braaksma; Bozeman,

Montana (American International)

Bert A. Fairclough; James, Gray & McCafferty; Great Falls, Montana

(Highland Corporation and Capital Hill Mall)

P. Keith Keller; Keller, Reynolds, Drake, Johnson & Gillespie, P.C.;

Helena, Montana (Golden Eagle Construction)

Gregory G. Smith; Smith Law Offices; Great Falls, Montana

(Palmer-Duncan Construction Co.)

Submitted on Briefs: June 11, 1998

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Decided: April 15, 1999

Filed:

__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.

¶1. Valery and Jeff Meyer appeal from the order granting summary judgment in
favor of the defendant cosmetic manufacturers as entered by the First Judicial
District Court, Lewis and Clark County. We reverse.

¶2. The issues on appeal are as follows:

¶3. 1. Did the District Court err when it adopted the cosmetic manufacturers' case
management order?

¶4. 2. Does the case management order violate the Due Process Clause of the
Fourteenth Amendment of the United States Constitution, and Article II, Section 17,
of the Montana Constitution?

¶5. 3. Did the District Court err when it granted summary judgment in favor of the
cosmetic manufacturers?

FACTUAL AND PROCEDURAL BACKGROUND

¶6. Valery Meyer worked as a beautician at the J.C. Penney store in the Capital Hill
Mall in Helena, Montana, from August 1989, until July 1993. On March 29, 1995,
Valery and Jeff Meyer, Valery's husband, filed suit against fourteen cosmetic
manufacturers and marketers, two construction companies, the owner of the beauty
salon, and J.C. Penney, her employer. Their complaint alleged that while at work,
Valery was exposed to a variety of toxic substances which made her ill. As a result of
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her illness, Valery was unable to continue to work and quit her job in July 1993.

¶7. In their complaint, the Meyers assert that each cosmetic manufacturer designed,
manufactured, and sold products that were defective and "directly and proximately
damaged" them. Valery alleged that each product was inherently dangerous to her
as a result of using "each and every of the products usually on a daily basis."

¶8. After being served with the complaint, some of the cosmetic manufacturers filed
discovery requests and motions for more definite statements from the Meyers. In
their discovery requests, several cosmetic manufacturers asked the Meyers to set
forth those facts which support the Meyers' allegations that the cosmetic
manufacturers negligently manufactured their products, that they failed to give
adequate warning, that they breached implied and express warranties, and that their
products were in a defective or unreasonably dangerous condition. By March 1996,
the Meyers began to respond to the initial discovery requests submitted by the
cosmetic manufacturers. However, the cosmetic manufacturers believed that the
Meyers' responses failed to provide the requested information.

¶9. On March 22, 1996, cosmetic manufacturer Helene Curtis, Inc., filed a motion for
a preliminary pretrial conference and for entry of a case management order. All of
the cosmetic manufacturers joined in the motion. The Meyers did not object to the
entry of a case management order, but offered their own version. On April 14, 1997,
the District Court adopted the case management order proposed by Helene Curtis,
Inc. The case management order required the Meyers to provide the following:

(a) A statement specifically identifying each product, by manufacturer, that Plaintiff,
Valery Meyer, claims to have caused her harm;

(b) A statement specifically describing of the circumstances of the alleged exposure to
each of the products identified in response to the requirements of paragraph (a), including
the time period during which [Valery] alleges exposure and the activities which resulted in
the exposure. If [Valery] claims exposure as a result of a specific incident or incidents, as
opposed to ordinary use in the course of her work as a beautician, the statement shall
include for each such incident the date and location of the incident, the specific product or
products involved, a detailed description of the incident, a detailed description of the
manner in which that incident exposed [Valery] to the product or products and a
description of the route or routes of exposure;

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(c) A statement identifying each chemical in each of the products that [Valery] claims to
have harmed her in any way. The chemical shall be identified specifically by chemical
name rather than a generic name (e.g., "sodium laurylether sulfate" rather than
"shampoo");

(d) An affidavit from a physician stating his or her opinion, based on a reasonable degree
of medical certainty, that [Valery] has suffered injuries as a result of exposure to
chemicals. The affidavit shall list:

(i) all injuries, illnesses or conditions suffered by [Valery] that, in the opinion of the
physician, were caused by the alleged exposure;

(ii) shall specify the chemical or chemicals that, in the opinion of the physician, caused
each injury, illness and condition listed; and

(iii) shall state the scientific and medical bases for the physicians' opinion, complete with
references to medical and/or scientific literature supporting or forming the basis for the
opinion.

It will not be sufficient for the affidavit to state a "laundry list" of injuries and chemicals.
Each injury, illness or condition must be itemized and specifically linked to the chemical
or chemicals believed to have caused that particular injury, condition or illness.

The District Court prohibited the Meyers from serving further discovery until they
complied with the case management order.

¶10. By May 13, 1997, the Meyers filed the affidavits of Valery and Gunnar Heuser,

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M.D. On June 16, 1997, defendant Helene Curtis, Inc. filed a motion to strike Dr.
Heuser's affidavit on the grounds that it failed to comply with the case management
order. Also on that day, cosmetic manufacturers Clairol, Inc. and OPI Products, Inc.
filed a motion to stay discovery. The District Court held a hearing on the matter and
took under advisement the motion to strike Dr. Heuser's affidavit.

¶11. On November 27, 1997, the District Court granted the cosmetic manufacturer's
motion to strike Dr. Heuser's affidavit. Thereafter, on December 17, 1997, the
cosmetic manufacturers moved for summary judgment. On December 18, 1997, the
parties stipulated to an entry of an order which granted summary judgment to the
cosmetic manufacturers. By stipulating, the Meyers retained all rights to appeal from
the District Court's grant of summary judgment, including the court's ruling on the
motion to strike Dr. Heuser's affidavit.

¶12. The District Court granted the motion for summary judgment in favor of the
cosmetic manufacturers and certified the judgment as final pursuant to Rule 54(b),
M.R.Civ.P. On January 12, 1998, the Meyers timely filed their notice of appeal.

STANDARD OF REVIEW

¶13. This Court's standard of review in appeals from summary judgment rulings is
de novo. See Treichel v. State Farm Mut. Auto. Ins. Co. (1997), 280 Mont. 443, 446, 930
P.2d 661, 663 (citing Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995),
274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465,
470, 872 P.2d 782, 785). This Court reviews a summary judgment order entered
pursuant to Rule 56, M.R.Civ.P., based on the same criteria applied by the district
court. See Treichel, 280 Mont. at 446, 930 P.2d at 663 (citing Bruner v. Yellowstone
County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903).

¶14. In proving that summary judgment is appropriate:

The movant must demonstrate that no genuine issues of material fact exist. Once this has
been accomplished, the burden then shifts to the non-moving party to prove, by more than
mere denial and speculation, that a genuine issue does exist. Having determined that
genuine issues of material fact do not exist, the court must then determine whether the
moving party is entitled to judgment as a matter of law. [This Court] review[s] the legal
determinations made by a district court as to whether the court erred.

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Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).

¶15. In order to be granted summary judgment, the "moving party has the burden of
showing a complete absence of any genuine issue as to all facts considered material in
light of the substantive principles that entitle the moving party to judgment as a
matter of law and all reasonable inferences are to be drawn in favor of the party
opposing summary judgment." Kolar v. Bergo (1996), 280 Mont. 262, 266, 929 P.2d
867, 869.

DISCUSSION

¶16. The Meyers raise Issues 1 and 2 for the first time on appeal. We have held that
on appeal, we will not consider issues that were not properly addressed in the district
court. See In re Marriage of Glass (1985), 215 Mont. 248, 697 P.2d 96. Accordingly,
the only issue we will address in this case is issue three, whether the District Court
erred when it granted summary judgment in favor of the cosmetic manufacturers.

¶17. In its decision to grant summary judgment in favor of the cosmetic
manufacturers, the District Court relied on its order striking Dr. Heuser's affidavit
for failing to comply with the case management order. The District Court
determined that Dr. Heuser's affidavit simply incorporated by reference the report
of a toxicologist, Jack Thrasher, Ph.D., who is not a medical doctor. The court noted
that Dr. Thrasher referred to potential problems associated with various products
but did not provide the specificity required by the case management order. In the
order striking the affidavit, the court concluded that:

The affidavit fails to explain which chemical or chemicals caused which injuries. It further
fails to explain the scientific basis for Heuser's conclusion that Valery Meyer's injuries
were caused by a particular chemical or chemicals.

¶18. On appeal, the Meyers argue that the District Court erred when it struck Dr.
Heuser's affidavit. The Meyers claim that the affidavit sufficiently complies with the
intent and purpose of the case management order, and does, in fact and law, present
a prima facie case of product liability against the cosmetic manufacturers. Thus, they
argue that the District Court erred when it granted summary judgment in favor of
the cosmetic manufacturers.

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¶19. The cosmetic manufacturers counter that the District Court did not err when it
granted their motion for summary judgment. They state that pursuant to the case
management order, the Meyers were required to establish the prima facie elements of
a product liability action and that they failed to do so by not specifically identifying
each product alleged to have caused Valery harm and by not describing the
circumstances of her exposure to each product. Furthermore, the cosmetic
manufacturers argue that the Meyers did not submit a physician's affidavit which
identified Valery's specific injuries and the chemicals which caused those injuries.
They maintain that Dr. Heuser's affidavit merely provided vague statements about
the possible effects of various chemicals and that it did not comply with the case
management order.

¶20. For the reasons discussed below, we determine that the District Court erred
when it struck Dr. Heuser's affidavit for failing to comply with the case management
order. We further conclude that the District Court erred when it granted the
cosmetic manufacturers' motion for summary judgment.

¶21. A person who sells a product in a defective condition unreasonably dangerous to
a user or consumer is liable for the physical harm caused by the defective product.
Section 27-1-719, MCA. In a product liability action, in order to establish a prima
facie case of strict liability, a plaintiff must prove the following elements:

(1) The product was in a defective condition, "unreasonably" dangerous to the user or
consumer;

(2) The defect caused the accident and injuries complained of; and

(3) The defect is traceable to the defendant.

Brown v. North American Mfg. Co. (1978), 176 Mont. 98, 105-06, 576 P.2d 711, 716.

¶22. Pursuant to Rule 16, M.R.Civ.P., the District Court issued a case management
order to manage the early stages of discovery and identification of claims regarding
Valery's exposure to the chemicals and causation of her damages. The case
management order required the Meyers to establish the prima facie elements of a

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product liability claim. In sum, the Meyers were required to establish (1) product
identification; (2) use and exposure; and (3) causation linking the product defect to
an identifiable injury.

¶23. In response to the case management order, the Meyers produced two affidavits.
The first affidavit was from Valery. Her affidavit set forth a listing by company of
each product which she used or was exposed to and the time period and
circumstances of the exposures. The cosmetic manufacturers did not object to
Valery's affidavit.

¶24. The second affidavit was from Gunnar Heuser, M.D., a physician with extensive
knowledge of the effect of toxic chemical exposure. Dr. Heuser personally examined
Valery and reviewed the examinations and tests conducted by numerous physicians
under his supervision. In order to diagnose Valery, Dr. Heuser partially relied on
information and the report compiled by Dr. Thrasher. Dr. Thrasher's report set
forth the specific toxic chemicals contained in the cosmetic manufacturers' products
that Valery identified. Dr. Thrasher's report also set forth the scientific and medical
authorities regarding the causal connection between the chemical exposure and
injury. Based on our review of these affidavits, we conclude that they satisfy the four
requirements set out in the case management order to establish a prima facie claim of
product liability for many of the products to which Valery was exposed.

¶25. The first requirement of the case management order was a statement which
specifically identified each product, by manufacturer, that the Meyers claim to have
harmed Valery. The combined affidavits of Dr. Heuser and Valery state and list the
identity of each specific product, by manufacturer, that Valery has identified as
having caused her injuries (e.g., Creative Nail Design, Solar Nail liquid and Contours
liquid, Primacide, Nail Fresh, etc.). Valery's affidavit sufficiently complies with the
case management order and provides the information necessary for each
manufacturer to know the identity of each product and therefore to defend against
the Meyers' claims.

¶26. The second requirement of the case management order is a specific description
of the circumstances of the alleged exposure to each of the products identified in
Valery's list including the time period during which Valery alleges exposure and the
activities which resulted in the exposure. Once again, Valery's affidavit sets forth a
listing by company of each product which she used or was exposed to, and the time

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period involved and the circumstances of exposure, i.e., dermal or inhalation or both,
on a daily, hourly, and minute basis for many of the products she listed. This
information substantially complies with the case management order and helps
establish the second element of a prima facie case of product liability for many of the
products.

¶27. The third requirement, a statement which identifies each chemical, by chemical
name, in each of the products that Valery claims to have harmed her in any way, and
the fourth requirement, a physician's affidavit which identifies the specific injuries
suffered by Valery, the specific chemicals which caused her injuries, and the
scientific or medical support for the physician's opinion of the causal connection
between the chemical exposure and Valery's injuries, are satisfied by Dr. Heuser's
affidavit and Dr. Thrasher's report as to many of the products.

¶28. Attached and incorporated by reference to Dr. Heuser's affidavit is a report
drafted by Dr. Thrasher which identifies each chemical in the products that Valery
claims to have harmed her. By referencing the product listed by Valery in her
affidavit, Dr. Thrasher identified the chemical name or chemical components of each
product, reviewed the toxicology of each chemical, and provided a list of references
and literature to support the causal connection between the chemical and the possible
injuries as a result of exposure to the chemical. Although Dr. Thrasher's report
states that without further information from the manufacturer, there are some
products whose chemical components are not known, his report provides most of the
cosmetic manufacturers with more than ample identification of the products which
Valery claims to have harmed her. The third requirement of the case management
order is therefore clearly satisfied as to many of the products.

¶29. On July 24, 1995, Dr. Heuser personally examined Valery and performed a
comprehensive evaluation for her multi-system complaints. Additionally, six other
physicians under Dr. Heuser's auspices personally examined Valery. As a result of
these examinations, and his consideration of the list of products to which she
indicated she had been exposed, along with the information about those products
included in the Material Safety Data Sheets, Dr. Heuser concluded in his affidavit
that he and the other six doctors collectively diagnosed Valery as having seven
specific chemical injuries. Dr. Heuser describes these seven chemical injuries as
follows:

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1. Immune suppression as demonstrated by decreased Natural Killer Cell Activity and
decreased mitogen response;

2. Upper and lower respiratory problems as determined by the presence of chronic rhinitis/
laryngitis and persistent coughing;

3. Sensory polyneuropathy as determined by changes in current perception threshold in the
trigeminal, peroneal and ulnar nerves;

4. Irritable bowel syndrome;

5. Vestibular dysfunction and endolymphatic hydrops;

6. Changes in cerebral perfusion; and

7. Excessive dryness of the eyes resulting from loss of goblet cells.

Dr. Heuser also notes that Dr. Thrasher independently diagnosed the above seven
chemical injuries in his December 12, 1995, report and that, in Dr. Thrasher's opinion,
daily exposure to a combination of chemicals caused Valery's physical ailments. Dr.
Heuser specifically relied upon the data provided by Dr. Thrasher for the basis of his
opinion and incorporated it by reference into his affidavit. He stated that "[t]he attached
documents state the identity of each product, by manufacturer, that Valery Meyer has
identified as having caused her injuries and, in addition, identifies each hazardous toxic
chemical by chemical name and the injury caused, together with supporting medical and/
or scientific literature that serves as the basis for my opinion." Dr. Heuser then concluded
that the chemical injuries suffered by Valery "were directly and proximately caused by her

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use and exposure to those hazardous toxic chemicals that have been identified by Dr.
Thrasher," while she was employed as a beautician at the J.C. Penney beauty salon.

¶30. It is evident that the District Court, in part, struck Dr. Heuser's affidavit
because he incorporated by reference the information provided by Dr. Thrasher. We
conclude, however, that there is sufficient opinion testimony provided in the affidavit
to comply with the case management order for many of the products to which Valery
was exposed. Certainly, as the case progresses, Dr. Heuser will be subjected to cross-
examination in a deposition or at trial and his opinions may be appropriately
challenged. However, Dr. Heuser's reliance upon the data of Dr. Thrasher and
numerous other specialists is warranted pursuant to Rule 703, M.R.Evid., which
provides:

The facts or data in a particular case upon which an expert bases an opinion or inference
may be those perceived by or made known to the expert at or before the hearing. If of a
type reasonably relied upon by experts in a particular field in forming opinions or
inferences upon the subject, the facts or data need not be admissible in evidence.

¶31. Dr. Heuser concluded in his affidavit that according to his expert medical
opinion, the seven chemical injuries were directly and proximately caused by
Valery's use and exposure to the chemicals found in the cosmetic manufacturers'
products while she was employed as a beautician at the J.C. Penney beauty salon.
The scientific and medical bases for Dr. Heuser's opinion are provided in his own
affidavit and in Dr. Thrasher's report which was a basis for Dr. Heuser's opinion.
Thus, Dr. Thrasher's report, in conjunction with Dr. Heuser's affidavit, provides the
expert medical opinion which establishes the causal link between many of the
cosmetic manufacturers' products and Valery's identifiable injuries. Dr. Thrasher
states scientifically what injury the chemicals may cause, and Dr. Heuser medically
states the chemical injuries that were actually caused based on his personal medical
examination of Valery. The information provided in Dr. Heuser's affidavit, in
combination with Dr. Thrasher's report, therefore, sufficiently satisfies the fourth
requirement of the case management order and the prima facie case of product
liability as to many of the products identified by Valery.

¶32. The affidavits provided by the Meyers, when read in combination with each
other, were sufficient to establish that many of the products produced by the

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defendant cosmetic manufacturers included toxic chemicals which contributed as
causes to specific injuries sustained by Valery Meyer. Although Dr. Thrasher's
report states that without further information from the manufacturers, there were
some products whose chemical components were not known, it is clearly not correct
that the affidavits failed to list Valery's injuries and failed to identify chemicals
which contributed as a cause of those injuries.

¶33. The cosmetic manufacturers point out examples where the Meyers did not
comply with the case management order. It is certainly true that by cross-referencing
the affidavits, which one is required to do, there are products identified about which
the information is incomplete. It is also true, however, that there was clear
compliance as to many of the products. For example, the product Nail Fresh,
manufactured by Creative Nail Design, contains dimethyl ketone and diethyl ether.
Dr. Thrasher's report lists the associated illnesses with exposure to these chemicals,
as well as scientific references. Dr. Heuser then states in his affidavit that Valery
suffers from seven identifiable maladies as a result of exposure to these chemicals.
Whether Dr. Heuser's opinion and causation testimony is scientifically or medically
valid, is not the issue. The Meyers have clearly complied with the case management
order as to this product.

¶34. We also recognize that the District Court may properly consider dismissal of
some of the products from this litigation on the basis of the information provided;
however, it was not proper for the court to strike Dr. Heuser's entire affidavit, which
in turn became the basis for summary judgment as to all products and all
manufacturers.

¶35. We conclude that the Meyers provided sufficient information at this stage of
pretrial proceedings to allow the case to move forward, and that the information was
adequate to enable the cosmetic manufacturers to proceed with discovery by further
depositions of the experts who submitted affidavits.

¶36. Accordingly, we conclude that the four requirements of the District Court's case
management order were satisfied by the information discussed above as to many of
the products and, therefore, that the District Court erred when it granted summary
judgment to the cosmetic manufacturers.

¶37. Because the companion case, Schelske v. Creative Nail Design, Inc. (1997), 280

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Mont. 476, 933 P.2d 799, addresses similar affidavits and reports from Dr. Heuser
and Dr. Thrasher, it is important that we comment on its relevance. In Schelske, we
upheld an order which granted summary judgment in favor of the cosmetic
manufacturers for the Schelskes' failure to comply with an identical case
management order. See Schelske, 280 Mont. at 486, 933 P.2d at 805.

¶38. The District Court determined, and the cosmetic manufacturers argue, that our
decision in Schelske should control the outcome of this case. The District Court noted
in its order granting summary judgment in this case that it reviewed the Schelske
affidavits and concluded that the affidavits here do not go further than the deficient
affidavits in Schelske.

¶39. Our review of the Schelske affidavits, however, compels us to reach a different
conclusion. Both Dr. Heuser and Dr. Thrasher provided affidavits in the Schelske
case. In that case, the majority stated that Dr. Heuser's and Dr. Thrasher's affidavits
did not satisfy the first requirement of the case management order because the
affidavits failed to specifically identify the product names. See Schelske, 280 Mont. at
483, 933 P.2d at 803. The majority noted that Dr. Thrasher's affidavit referred to
generic terms such as "shampoos" and "bleach powders." Schelske, 280 Mont. at
483, 933 P.2d at 803. Dr. Heuser provided three affidavits; the first two did not
include a list of specific product names, and the third did provide a list but it was
incomplete. The majority concluded that the affidavits did not comply with the case
management order because they failed to state each specific product that Mischelle
Schelske personally identified as having caused her harm. See Schelske, 280 Mont. at
484, 933 P.2d at 803.

¶40. In the present case, Valery Meyer submitted two affidavits to comply with the
case management order, hers and Dr. Heuser's. Both she and Dr. Heuser specifically
listed the products in their affidavits.

¶41. The second element of the case management order in both cases required the
plaintiff to describe the circumstances of the alleged exposure. In Schelske, we
concluded that the Schelskes did not comply adequately with the case management
order as to this requirement. See Schelske, 280 Mont. at 484, 933 P.2d at 803-04. The
District Court's order in this case, however, is silent regarding Valery's affidavit, and
the cosmetic manufacturers did not move to strike it. Therefore, we conclude that the
second element is not at issue.

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¶42. The third element of both case management orders required that the plaintiff
provide a physician's affidavit which identifies the specific injuries, the specific
chemicals which caused the injuries, and the scientific or medical basis for a causal
connection between the exposure and the injury. In Schelske, the majority rejected
Dr. Thrasher's affidavit because he was not a medical doctor. See Schelske, 280
Mont. at 485, 933 P.2d at 804. Mischelle Schelske also provided an affidavit of Dr.
Kurtz, her local treating doctor in Bozeman. The majority stated that Dr. Kurtz's
affidavit was somewhat general and merely listed symptoms, with very little detail as
to a specific diagnosis, and concluded with an acceptance of Dr. Thrasher's opinions.
See Schelske, 280 Mont. at 485, 933 P.2d at 804. Dr. Heuser's first two affidavits did
not enumerate specific injuries or illnesses or state the specific chemicals alleged to
have caused Mischelle Schelske's injuries. See Schelske, 280 Mont. at 485, 933 P.2d at
804. The majority concluded that Dr. Heuser's third affidavit was deficient because
he stated that certain products are merely "associated" with certain diseases and
that Mischelle Schelske's symptoms were "compatible with" certain illnesses. See
Schelske, 280 Mont. at 486, 933 P.2d at 804-05.

¶43. In the present case, Dr. Heuser's affidavit is more definitive. In his affidavit, he
provides specific diagnoses, including seven itemized conditions from which Valery
suffers. He provides his medical opinion that the conditions were directly and
proximately caused by Valery's use and exposure to the chemicals identified in Dr.
Thrasher's report which he attached to his affidavit. His affidavit lists the products
identified by Valery and correlates each diagnosis to a specific product. Attached to
Dr. Heuser's list of products are letters written by Dr. Thrasher which explain the
chemical content of each of the products listed by Dr. Heuser. Dr. Heuser cross-
referenced the chemicals to the corresponding products which he concluded injured
Valery.

¶44. We conclude it was error for the District Court to strike the entire affidavit of
Dr. Heuser and then grant summary judgment to all the cosmetic manufacturers on
all products. Although the Meyers may not have completely complied with the case
management order as to every product listed, the Meyers did comply with regard to
many of the products. Further pretrial discovery and motions could have served to
eliminate those products for which insufficient information was provided.

¶45. We reverse the judgment of the District Court and remand this case for further
proceedings consistent with this opinion.

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/S/ JIM REGNIER

We Concur:

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

Chief Justice J.A. Turnage concurs and dissents as follows.

¶46 I concur with the majority opinion as to Issues 1 and 2, but I dissent as to Issue 3.

¶47 In this action, Meyer brought suit against eighteen named and ten unnamed defendants
for her alleged injuries from chemical exposure while she was employed at a beauty salon.
The Case Management Order was made at the request of defendant Helene Curtis, Inc., as
a means of allowing for the most expeditious and cost-effective way of proceeding
through the preliminary stages of this potentially very complicated lawsuit. The order
stated that it was designed to manage identification of Meyer's claims regarding exposure
and causation.

¶48 The Case Management Order required Meyer to file and serve a statement identifying
the chemicals in each of the products that she claimed to have harmed her. It further
required

[a] statement from a physician stating his or her opinion, based on a reasonable degree of
medical certainty, that the Plaintiff has suffered injuries as a direct and proximate result of
exposure to those chemicals. The statement shall list all injuries, illnesses, or conditions
suffered by the Plaintiff that, in the opinion of the physician, were caused by the alleged
exposure, and whether each injury, illness or condition can be specifically linked to the
chemical or chemicals believed to have caused the same.

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As the majority has stated, the Case Management Order was based on one used in
Schelske. As the majority has also stated, the essence of the order was to require Meyer to
establish three elements: product identification, use and exposure, and causation linking
the product defect to an identifiable injury.

¶49 In response to the Case Management Order, Meyer filed and served two affidavits,
one by herself and the second by Dr. Gunnar Heuser. In her affidavit, Meyer addressed the
product identification and use and exposure requirements of the Case Management Order.
In his affidavit, Dr. Heuser listed seven chemical injuries to Valery Meyer as found by
him and other doctors in "a comprehensive evaluation for her multi system complaints"
and also "independently diagnosed by Dr. Jack Thrasher in his report dated December 12,
1995, in which I concur." Dr. Heuser further stated:

[I]t is my expert opinion that the above chemical injuries, one through seven, suffered by
Valery Meyer were directly and proximately caused by her use and exposure to those
hazardous toxic chemicals that have been identified by Dr. Thrasher, in his attached
reports to Mr. Scanlon, while she was employed as a beautician at the J.C. Penneys beauty
salon in Helena, Montana.

While Dr. Heuser's affidavit identifies the seven specific chemical injuries to Meyer, its
answer to the requirement concerning a physician's statement of causation is problematical.

¶50 Attached to Dr. Heuser's affidavit are 78 pages attributed in part to Jack Thrasher,
who is described on his letterhead as a "medical/legal consultant," and who was identified
in Schelske as a Ph.D. toxicologist. Among those pages, fourteen separate lists (authorship
not indicated) show the names of products manufactured by the fourteen cosmetic
manufacturer and marketer defendants. Across from the names of most products in each of
those lists, under the caption "Chemical Injury," is listed one or more numbers between 1
and 7. Those numbers apparently correspond to the numbers in the list of chemical injuries
to Meyer as set forth in Heuser's affidavit. The remainder of the 78 pages consist of copies
of letters from Thrasher to Meyer's attorney, describing possible adverse health effects of
various chemicals in each of the products listed.

¶51 One basis for the Court's rejection of the affidavits in Schelske was that the list of
chemicals and associated diseases therein was "merely a collection of potential
consequences from contact with the chemicals in the products" which did not describe the
particular injuries suffered by the plaintiff. Schelske, 280 Mont. at 485, 933 P.2d at 804.

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Another basis for the Court's rejection was that the doctor's affidavit was vague and
conclusory without providing the specific causation linking the product defect to an
identifiable injury. Schelske, 280 Mont. at 486, 933 P.2d at 804-05.

¶52 Comparing the Schelske affidavits to those in the present case, the "improvements" in
the affidavits in the present case are that Meyer has submitted her own affidavit which
lists, by defendant, each product which she has identified as having caused her injuries
and, in summary fashion such as "all day every day"and either "inhalation " or "dermal,"
describes the time period involved and circumstances of her exposure.

¶53 What is not different from the affidavits in Schelske is that Thrasher's letters are
merely a list of a myriad of possible consequences from contact with various chemicals
and are not tied to Meyer or to her particular injuries. Other than the choice of products
named (of which there are well over two hundred), none of the information--for example,
the necessary level of exposure believed to lead to the listed health effects--is correlated
with Meyer's experience. Moreover, Thrasher's letters are only preliminary in nature, in
that they include various requests by him for more information from Meyer's attorney,
such as requests for information about the percentage concentrations of chemicals in
various of the products and, as to some of the products, requests for identification of the
specific chemicals present. As a result of his lack of complete information, Thrasher was
unable to list possible consequences from contact with at least fifty of the listed products.

¶54 A third point concerning Thrasher's letters is that many of the adverse health effects
listed--such as cancer, enlarged liver, skin burns, clonic convulsions, anorexia, and
pulmonary edema--are problems from which Meyer has not alleged that she suffers.
Finally, Thrasher makes statements not based upon medical or scientific knowledge--e.g.,
in providing support for his statement that fragrances may cause irritation to mucous
membranes, Thrasher states "[f]or now, until specifics are known, the reference on
fragrances would have to be personal knowledge based upon experience in a litigation
involving fragrances."

¶55 As the majority points out, in rejecting Dr. Heuser's affidavit, the District Court
reasoned that the affidavit failed to explain which chemical or chemicals were alleged to
have caused which injuries and also failed to explain the scientific basis for Dr. Heuser's
conclusion that Meyer's injuries were caused by a particular chemical or chemicals. Even
though Dr. Heuser states that in his expert opinion Meyer's chemical injuries were "caused
by her use and exposure to those hazardous toxic chemicals that have been identified by

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Dr. Thrasher," the nature of Thrasher's letters, the basis for that opinion on causation,
results in a causation link which, as in Schelske, is unacceptably vague and conclusory. Dr.
Heuser's affidavit, in its entirety, simply does not answer the question of whether each
injury, illness or condition can be specifically linked to the chemical or chemicals believed
to have caused the same. I would conclude that the affidavits here cannot fairly be said to
meet the District Court's Case Management Order. I would therefore affirm the summary
judgment order entered by the District Court.

/S/ J. A. TURNAGE

Justice Karla M. Gray and Justice James C. Nelson join in the foregoing concurring and
dissenting opinion of Chief Justice Turnage.

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

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