Mansfield et al v. United States of America

Filing 38

MEMORANDUM DECISION AND ORDER It is hereby ORDERED, that the motion for partial summary judgment (docket no. 29 ) is GRANTED and that the following claims are dismissed: (1) all personal injury claims based on cyanide exposure; (2) all claims based on a fear of future harm; (3) Mark and Theresas claims for negligent and intentional infliction of emotional distress; and (4) CM's claim for intentional infliction of emotional distress. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MARK L. MANSFIELD and THERESA
A. MANSFIELD, individually, and on
behalf of their minor child CM,
Plaintiffs,

Case No. 4:18-CV-278-BLW
MEMORANDUM DECISION AND
ORDER

v.
UNITED STATES OF AMERICA,
Defendant.

INTRODUCTION
The Court has before it a motion for partial summary judgment filed by the
Government. The Court heard oral argument on December 13, 2019, and granted
the motion from the bench. This decision will supplement the Court’s oral ruling.
BACKGROUND FACTS
On March 16, 2017, plaintiff CM, a minor child, and his dog Kasey were
playing in the area about 300 yards from their home. CM saw what looked like a
pipe protruding from the ground. He did not know that the “pipe” was an M/44
cyanide bomb placed by the Government to kill wolves and coyotes that might be
preying on livestock. No warning signs were installed. CM pulled on the device
and it exploded, spraying cyanide on CM’s face, left eye, left arm, and his legs and
Memorandum Decision & Order – page 1

his chest, leaving an orange powdery residue on him. The explosion also sprayed
cyanide on Kasey. While CM survived the incident, the dog died. The family –
CM and Mark Mansfield, his father, and Theresa Mansfield, his mother – filed this
lawsuit to recover damages for their injuries. The Government has agreed not to
contest negligence and the remaining issues are causation and damages.
The Government’s motion for partial summary judgment seeks to dismiss
“all personal injury claims, all claims arising from Plaintiffs’ fear of future injury,
all intentional infliction of emotional distress claims, and all of Mark and Theresa
Mansfield’s negligent infliction of emotional distress claims.” See Motion (Dkt.
No. 29).
ANALYSIS
Personal Injury Claims – Claims for Damages for Cyanide Exposure
The Court will first address the Government’s motion seeking to dismiss the
personal injury claims based on cyanide exposure. Those personal injuries include
CM’s migraine headaches, and vomiting, that started after the incident. The record
indicates that, initially, he suffered from migraine headaches every 5 to 6 days, but
currently is experiencing them every 2 to 3 weeks. CM is taking medication for
the headaches which make it harder for him to pay attention so that he has to work
harder in school. He also has suffered from numbness in his left hand and forearm,

Memorandum Decision & Order – page 2

and has nightmares where he experiences the event again and again. Also, at
times both of his eyes get red and burn.
There is no dispute that cyanide can kill or, in lesser doses, cause physical
ailments such as headaches. There is also no dispute that CM was exposed to
cyanide and there are at least questions of fact over the parents’ exposure: Theresa
Mansfield reached down the throat of the convulsing Kelsey thinking he might be
choking and then held him in her lap; Mark Mansfield carried Kelsey down the hill
to their driveway getting bloody slobber on himself.
The issue is whether this cyanide exposure caused any ailments. At the
hearing, plaintiffs alleged for the first time that a medical record from a treating
physician contains the necessary expert testimony to show that the cyanide
exposure caused their ailments. This argument was not contained in the briefing.
The medical record was prepared by a Dr. M. Elizabeth Gerard, who appears to be
a neurologist. The record relied on by plaintiffs is dated March 30, 2017, and was
prepared following Dr. Gerard’s exam of CM. It states that
[h]is exam is normal. It is likely the symptoms he has experienced
are from exposure. Unfortunately, not much is known about low level
exposure and chronic neurologic effects other than the well described
parkinsonian syndrome. He is improving now, do not think that MRI
would be helpful. If symptoms continue, they will let me know. May
consider referral to Primary children’s neurology department.
See Records (Dkt. No. 29-17). Plaintiffs have not submitted any affidavit of Dr.
Gerard and her deposition was never taken. There is nothing in the record
Memorandum Decision & Order – page 3

concerning her qualifications. She says causation is “likely” but does not explain
whether she reaches that conclusion to a reasonable degree of medical certainty.
An expert opinion would need to describe the symptoms and identify her
methodology for concluding that the cyanide exposure caused those symptoms.
She never identifies the “symptoms” she refers to. What is the level of “exposure”
that she assumed? Is she merely recounting what CM told her or did she conduct
an independent analysis of her own? All the medical tests in the record show no
cyanide levels in the blood and CM’s MRI showed no damage. So she cannot be
relying on other medical records. Her brief note quoted above does not identify
her qualifications or her methodology and therefore does not constitute an expert
opinion that can be relied upon in this summary judgment proceeding.
Plaintiffs have submitted four other items of evidence to show exposure
caused their ailments:
1. Dr. Mansfield intends to testify that their physical symptoms are the
result of cyanide exposure;
2. The opinion of toxicologist, Dr. Sander Orent that exposure caused
the ailments;
3. Testimony apparently from Dr. Mansfield regarding the experience of
an individual named Dennis Slaugh; and
4. The temporal connection – that is, plaintiffs’ physical ailments started
soon after the M/44 explosion.
With regard to the first item, Dr. Mansfield’s testimony on causation would be
an opinion based on scientific or technical knowledge. He therefore cannot testify
as a lay witness under Rule of Evidence 701 and must testify as an expert under
Memorandum Decision & Order – page 4

Rule 702. However, he has not been designated as an expert and has not filed the
expert report required by Rule 26. 1 Moreover, he has no training or experience to
qualify as an expert in toxicology or the effects of cyanide exposure. His
testimony will be based on articles he found on the internet but the conclusions of
those articles are inadmissible hearsay. While an expert can rely on otherwise
inadmissible material to form an opinion, the expert must establish that other
experts in the field of toxicology or cyanide exposure would reasonably rely on
those articles. see Rule of Evidence 703, Dr. Mansfield is not an expert and has no
information on what experts in the field rely upon. The bottom line is that there is
no way to know if the articles he relies upon are reliable. Thus, Dr. Mansfield’s
testimony on the effects of cyanide exposure is inadmissible.
Dr. Mansfield’s discussion with Dr. Sander Orent is inadmissible hearsay if
Dr. Mansfield attempts to relate it in trial testimony. To get around that, plaintiffs
could attempt to call Dr. Orent himself, but that attempt would fail because Dr.
Orent’s testimony, based on his scientific knowledge, would be expert testimony
that has not been disclosed through the filing of an expert report as required by

Dr. Mansfield was disclosed as a rebuttal expert. However, the Court will
typically not consider rebuttal expert reports from a non-moving party at the summary
judgment phase. Ellis v. Corizon, Inc., 2018 WL 6268199, at *4 (D. Idaho Nov. 30,
2018). This is because summary judgment tests the adequacy of a plaintiff’s case-inchief, and not what evidence the plaintiff might be able to present in response to evidence
which the defendant may, or may not, present at trial. Id.
1

Memorandum Decision & Order – page 5

Rule 26. Thus, Dr. Orent’s opinion is not admissible and provides no support for
causation.
Dr. Mansfield’s testimony regarding Dennis Slaugh’s death is likewise
inadmissible hearsay. Dr. Mansfield learned about Slaugh from newspaper
accounts, a movie called “Lethal Control”, and from talking with an individual
named Brooks Fahy – Dr. Mansfield never talked to Slaugh himself. See Dr.
Mansfield Deposition (Dkt. No. 34) at pg. 266, 271.
Dr. Mansfield learned that in 2002, Slaugh was sprayed with cyanide from a
M44 bomb and died 15 years later. But this testimony gleaned from news articles
and Brooks Fahy contains several layers of inadmissible hearsay.
Plaintiffs’ counsel has provided Slaugh’s death certificate stating that his
death was due to “Coronary artery disease” and just under that statement is a title
“Other significant conditions” and next to it is listed “cyanide poisoning from M44
device 2002.”
The statement on the death certificate is inadmissible hearsay. Even if the
certificate is admissible generally as a public record, any hearsay it contains must
be separately admissible under some exception. Here, the certificate states that no
autopsy was done so the listing of cyanide exposure must have come from the
hearsay accounts of family members or some other hearsay source. No exception

Memorandum Decision & Order – page 6

applies for that level of hearsay. Thus, the evidence regarding Dennis Slaugh is
inadmissible.
This leaves as the only evidence of causation the temporal connection
between CM’s exposure and his physical ailments. Plaintiffs cite several cases
stating the importance of a temporal connection in finding causation. But each of
the cases cited by plaintiffs involved evidence in addition to the temporal
connection itself, such as expert testimony.
A representative example is the case cited by plaintiffs, Clausen v M/V New
Carissa, 339 F.3d 1049 (9th Cir. 2003). There, an expert was allowed to testify that
the temporal connection between the deaths of oysters and an oil spill from the
ship “New Carissa” was an important factor in his opinion that the oil spill caused
the oyster death, even in the absence of any studies showing what level of oil is
needed to kill oysters. The expert was a renowned marine biologist and had
studied the dead oysters, finding oil from the New Carissa in each one studied. Id.
at 1061. He ruled out all other causes of the oyster deaths by conducting a
differential diagnosis with an established methodology. Id. This is similar to the
other cases cited by plaintiffs.
Such expert testimony is missing here. Plaintiffs cite no cases holding that
temporal connection by itself is sufficient to create a material issue of fact
precluding summary judgment on causation.
Memorandum Decision & Order – page 7

If temporal connection by itself was sufficient, patients who have been
vaccinated by a physician could sue that physician for malpractice if the patient
was shortly thereafter diagnosed with autism even though there is no scientific
evidence linking vaccinations with autism – that is clearly contrary to the law and
demonstrates why temporal connection by itself is not sufficient.
Parents’ Claims for Emotional Distress from Worry over CM’s health
The Court will address next the parents’ claim for negligent and intentional
infliction of emotional distress for their worry and anxiety over CM’s health.
Idaho law does not permit recovery for emotional distress arising from a child’s
injury. See Hayward v. Yost, 242 P.2d 971, 977 (Idaho 1952). Thus, the parents’
claims for negligent and intentional infliction of emotional distress resulting from
their worry and anxiety over CM’s health must be dismissed.
Plaintiffs’ Claims for Fear of Future Harm
The Government seeks to dismiss plaintiffs’ claims for damages for their
fear of future harm from their exposure to cyanide. On this issue there are two
important cases. The first is Neal v. Neal, 125 Idaho 617 (1994) where the Idaho
Supreme Court stated as follows:
Damages are recoverable for emotional distress claims
resulting from the present fear of developing a future
disease only if the mental injury alleged is shown to be
sufficiently genuine and the fear reasonable. We hold that
there can be no reasonable fear of contracting such a
disease absent proof of actual exposure.
Memorandum Decision & Order – page 8

The second case was decided by Judge David Nye in this District -- Hepburn
v. Boston Scientific Corp., 2018 WL 2275219 (D. Id. May 17, 2018):
Where the basis for awarding damages is the potential
risk of susceptibility to future disease, the predicted
future disease must be medically reasonably certain to
follow from the existing present injury. While it is
unnecessary that the medical evidence conclusively
establish with absolute certainty that the future disease
or condition will occur, mere conjecture or even
possibility does not justify the court awarding damages
for a future disability which may never materialize.
Hepburn, 2018 WL 2275219 at *4 (quoting Sterling v. Velsicol, 855 F.2d 1188,
1204 (6th Cir. 1988)). In this case there is only “mere conjecture” that future harm
might occur. At most there might be a “possibility” of future harm, but that is not
sufficient under the law. Thus, the claim for damages for fear of future harm must
be dismissed.
Claims for Infliction of Emotional Distress
The Government seeks to dismiss the parents’ claims for intentional and
negligent infliction of emotional distress and CM’s claim for negligent infliction of
emotional distress. These claims were never pled in the complaint. They are
duplicative of the claim for negligence, which is not at issue in this motion. At
most the intentional infliction claim might be necessary to obtain punitive damages
but plaintiffs cannot obtain punitive damages against the Government. Thus, the
Court will dismiss these claims.
Memorandum Decision & Order – page 9

Conclusion
For these reasons, the Court will grant the Government’s motion for partial
summary judgment dismissing (1) all personal injury claims based on cyanide
exposure; (2) all claims based on a fear of future harm; (3) Mark and Theresa’s
claims for negligent and intentional infliction of emotional distress; (4) CM’s
claim for intentional infliction of emotional distress.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for partial
summary judgment (docket no. 29) is GRANTED and that the following claims are
dismissed: (1) all personal injury claims based on cyanide exposure; (2) all claims
based on a fear of future harm; (3) Mark and Theresa’s claims for negligent and
intentional infliction of emotional distress; and (4) CM’s claim for intentional
infliction of emotional distress.

DATED: December 16, 2019
_________________________
B. Lynn Winmill
U.S. District Court Judge

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