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Kannankeril v. Terminix Intern.

October 17, 1997

CHARLES KANNANKERIL; MARY KANNANKERIL, INDIVIDUALLY AND AS NEXT FRIEND OF CHARLENE AND CRYSTAL KANNANKERIL; CHARLENE KANNANKERIL; CRYSTAL KANNANKERIL

v.

TERMINIX INTERNATIONAL, INC.; TM SPECIAL PARTNERS, INC.; TERMINIX MGP, INC., GENERAL PARTNERS OF THE TERMINIX INTERNATIONAL COMPANY LIMITED PARTNERSHIP; TERMINIX INTERNATIONAL; DOW CHEMICAL U.S.A.; WHITMIRE RESEARCH LABORATORIES, INC.; FORD CHEMICAL & SERVICE, INC.; DENNIS BUTTIMORE, C/O TERMINIX INTERNATIONAL; THE TERMINIX INTERNATIONAL COMPANY LIMITED PARTNERSHIP

MARY KANNANKERIL, INDIVIDUALLY AND AS NEXT FRIEND OF CHARLENE KANNANKERIL, APPELLANT.



On Appeal from the District Court for the District of New Jersey

(D.C. Civil Action No. 92-cv-03150)

Before: SLOVITER, Chief Judge, ROTH and MICHEL, *fn1 Circuit Judges

ROTH, Circuit Judge.

Filed October 17, 1997

Argued on July 17, 1997

(Opinion filed October 17, 1997)

OPINION OF THE COURT

The Kannankerils, Dr. Mary Kannankeril, her husband, Charles, and their children, Charlene and Crystal, sued a pest exterminator, the Terminix International Company L.P. ("Terminix"), seeking damages for injuries allegedly arising out of the application of pesticides to their residence. The district court found the opinion of Dr. Benjamin Gerson, the medical expert of Dr. Mary Kannankeril, to be unreliable and unsupported by facts. Having excluded Dr. Gerson's opinion, the district court held that Dr. Kannankeril had failed to produce any evidence that her cognitive impairment had been caused by exposure to pesticides applied by Terminix. The court granted summary judgment in favor of Terminix. The admissibility of Dr. Gerson's opinion is the sole issue on which the Kannankerils have appealed. They argue that the district court erroneously excluded the testimony of Dr. Gerson.

We conclude that the district court improperly exercised its gatekeeping role by excluding Dr. Gerson's testimony.

Accordingly, we will vacate that portion of the order of the district court, granting summary judgment against Dr. Mary Kannankeril on this point, and we will remand this case for further proceedings consistent with this opinion. *fn2

I. BACKGROUND

The Kannankerils entered into a one-year contract with Terminix on May 30, 1989, for the control of carpenter ants through the application of pesticides to certain interior portions and the outside deck of the Kannankerils' residence. From May 31, 1989, through October 5, 1990, Terminix treated the Kannankeril residence on at least twenty occasions at intervals ranging from once a month to twice in a three day period. Terminix applied pesticides, containing Dursban, until the Kannankerils canceled the service on October 5, 1990.

Dursban, the active ingredient in certain pesticides used by Terminix, is a formulation of chlorpyrifos, an organophosphate poison. The organophosphates kill insects by inhibiting the normal breakdown of acetylcholine, which functions as a neurotransmitter in several life forms, including humans. The Kannankerils argue that despite the well-known chronic effects of chlorpyrifos, Dursban was sprayed excessively and improperly in their home. For example, Dursban was sprayed on the cooking range, around the dishwasher, and on the baseboard heater. Dursban was also sprayed in cupboards where pots and pans were stored. Terminix, however, claims that any liquid pesticide that was applied consisted almost entirely of water, with minute concentrations of liquid pesticide added to make the final active solution.

The Kannankerils' suit against Terminix involved alleged injury to Dr. Mary Kannankeril, a former Medical Director of Psychiatric Emergency Services at Saint Mary's Hospital in Passaic, New Jersey. Dr. Kannankeril claims to suffer wide-ranging physiological and cognitive symptoms from exposure to the pesticides, including Dursban, applied by Terminix. *fn3 The symptoms first appeared in August 1990, over one year after Terminix began its service. The Kannankerils did not relate Dr. Kannankeril's symptoms with Terminix's ongoing pesticide applications until October 1990. After the entire family developed a rash, the Kannankerils began to suspect Dursban as the cause of their problems. When the Kannankerils complained of a strong odor in their home after the last application, Terminix sent Service Master to clean the Kannankerils' residence. In July 1991, nine months after the last application of pesticide, the Kannankerils requested that the New Jersey Department of Environmental Protection ("DEP") test their residence for the existence of pesticides. The DEP collected air samples from the residence on July 10, 1991. An analysis of the samples indicated non-detectable levels of pesticides.

Dr. Kannankeril allegedly developed chronic toxicity related to exposure to chlorpyrifos and became sensitized to multiple other chemicals so that further exposure to organophosphates would result in disabling physical problems. As a result of her ill health, she gave up her hospital ...


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