Simon v. Select Comfort Retail Corp.

Filing 169

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Defendants' Motion to Exclude the Testimony of Dr. Ernest P. Chiodo 52 is GRANTED. IT IS FURTHER ORDERED that Defendants' Motion to Exclude the Testimony of Christopher A. Pastore, Ph.D. 54 is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that Defendants' Motion to Exclude the Testimony of Patsy Duncan 56 is GRANTED. IT IS FURTHER ORDERED that Defendants' Motion for Spoliation Sanctions 58 is DENIED. IT I S FURTHER ORDERED that Plaintiff's Motion to Exclude Defendants' Exhibit 44 158 is DENIED. IT IS FINALLY ORDERED that Defendants' Motion for Summary Judgment 60 is GRANTED. A separate Judgment will accompany this Memorandum and Order.. Signed by District Judge John A. Ross on 1/14/16. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RALPH SIMON,

)
)
Plaintiff,
)
)
v.
)
)
SELECT COMFORT RETAIL CORP., et al., )
)
Defendants.
)

No. 4:14-CV-1136 JAR

MEMORANDUM AND ORDER
This matter is before the Court on the following motions: Defendants Select Comfort
Retail Corporation and Select Comfort Corporation’s (collectively “Select Comfort”) Motions to
Exclude the Testimony of Dr. Ernest P. Chiodo (Doc. No. 52), Christopher A. Pastore, Ph.D.
(Doc. No. 54), and Patsy Duncan (Doc. No. 56); Motion for Spoliation Sanctions (Doc. No. 58);
and Motion for Summary Judgment (Doc. No. 60); and Plaintiff’s Motion to Exclude
Defendants’ Exhibit 44. (Doc. No. 158) The motions are fully briefed and ready for disposition.
Oral argument on the motions was held on December 11, 2015.
I.

Background

On November 19, 1999, Plaintiff Ralph Simon (“Simon”) purchased a 1999 model 5000
series Sleep Number® bed designed, manufactured and sold by Select Comfort.1 On February

1

Instead of using springs like a traditional mattress, the 5000 series Sleep Number® bed contains
inflatable air chambers that can be adjusted by a remote control to provide firmer or softer support for the
user. A foam layer sits directly on top of the air chamber. The foam layer in turn is covered with
additional padding layers and a pillow-top or mattress cover layer. The air chamber, foam, and padding
are encased in the mattress cover, which zips around the perimeter and encloses the inner workings of the
mattress, giving it the exterior appearance of a traditional mattress. The Sleep Number® mattress rests on
a flat foundation, and the entire sleep system (mattress and foundation) is referred to as the Sleep
Number® bed. (Defendants’ Statement of Uncontroverted Material Facts in Support of their Motion for
Summary Judgment (“SOF”), Doc. No. 62 at ¶¶ 4-7)

22, 2013, Simon contacted Select Comfort to report that the foam layer of his bed had broken
down and had an uncomfortable sag. Select Comfort sent Simon a replacement foam topper pad.
Approximately two weeks later, on or about March 1 or 2, 2013, Simon went to replace the foam
and discovered what he believed to be “toxic mold” on the foam pad. He took a photograph of
the foam pad before rolling it up, taking it to his garage, and placing it in a black plastic trash
bag. Simon then contacted Select Comfort to report the mold. A Select Comfort customer service
representative offered to and did send Simon a new pump, air chamber and control. After
discussing the bed components with the Select Comfort representative, Simon threw away the
old air chamber. He took no photographs of the air chamber. He discarded his pillows and
washed his other bedding. Within days, Simon retained counsel and took the foam pad in the
plastic trash bag to his counsel’s office.
On March 14, 2014, Simon filed a complaint against Select Comfort Retail Corporation
in St. Louis County Circuit Court alleging that in “early 2009,” he began experiencing a wide
range of physical ailments, including severe skin irritations, hearing loss, eye infections and
vision problems, sleep apnea and severe throat irritation, which he attributes to “toxic mold” that
grew on his Sleep Number® bed.2 The case was timely removed to this Court on June 23, 2014.
(Doc. No. 1) On March 20, 2015, Simon filed an amended complaint adding Select Comfort
Corporation as a defendant. (Amended Complaint (“AC”), Doc. No. 31) The operative complaint
alleges causes of action for strict liability defective design, strict liability failure to warn, and
negligence.
2

Simon has offered three different dates of onset. In an affidavit dated November 15, 2013, Simon stated
that “[i]n 2006, [he] began experiencing sudden-onset symptoms of respiratory, olfactory and vision
problems that had been attributed to the common cold or allergies.” (Affidavit of Ralph Simon (“Simon
Aff.”), Doc. No. 92 at ¶ 3) In both his original and amended complaints filed in March 2014 and March
2015 respectively, Simon alleges his physical symptoms began in “early 2009.” (Doc. No. 4 at ¶ 2; Doc.
No. 31 at ¶ 4) He testified on deposition that his symptoms began in 2002 or 2003. (Deposition of Ralph
Simon (“Simon Depo.”), Doc. No. 65-1 at 44:7-14; 78:5-10)

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II.

Discussion
A. Motion for spoliation sanctions

Select Comfort has moved for spoliation sanctions against Simon, arguing that his actions
regarding the components of his bed constitute intentional spoliation which justifies dismissal or,
in the alternative, an order excluding spoliated evidence. According to Select Comfort, Simon
contemplated filing a lawsuit soon after discovering what he believed to be mold on his mattress.
Despite this fact, Simon threw away the air chamber and stored the foam pad in such a manner as
to alter its condition. Select Comfort argues it has been denied the ability to examine the entire
bed and that the parts it has had access to, namely the foam pad, have been contaminated and/or
altered. Because there is no way to know from the current evidence whether there was mold on
Simon’s bed at the time of use and, if so, whether it was caused by a product defect or conditions
of use, Select Comfort argues its ability to prepare a full defense has been severely
compromised. Simon responds that he is a layman with no training or experience in preserving
materials contaminated with mold. Moreover, Select Comfort’s customer representative told him
he could dispose of both the air chamber and the foam pad and clean the remaining components
of his bed.
“The ultimate focus for imposing sanctions for spoliation of evidence is the intentional
destruction of evidence indicating a desire to suppress the truth, not the prospect of litigation.”
Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007). “Intent is rarely proved by
direct evidence, and a district court has substantial leeway to determine intent through
consideration of circumstantial evidence, witness credibility, motives of the witnesses in a
particular case, and other factors.” Id. (quoting Morris v. Union Pacific R.R., 373 F.3d 896, 902

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(8th Cir. 2004)). See also Menz v. New Holland N. Am., Inc., 440 F.3d 1002, 1006 (8th Cir.
2006); Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 746 (8th Cir. 2004).
Select Comfort points to the facts that Simon searched the internet for consumer
complaints and contemplated filing a lawsuit the same day he discovered the mold. He began
contacting attorneys within the week. He saved some parts of his bed and discarded others.
Select Comfort also asserts that Simon misrepresented his medical history of allergies when
providing a patient history to Select Comfort’s medical expert Dr. Wedner and his own medical
causation expert, Dr. Chiodo. According to Select Comfort, this is sufficient circumstantial
evidence for the Court to conclude that Simon intentionally destroyed or altered evidence to
bolster his lawsuit. The Court disagrees. Although Simon’s actions have had a significant effect
on Select Comfort’s ability to prepare a full defense, the Court finds no bad faith on his part
“indicating a desire to suppress the truth.” C.f. Sentis Group, Inc. v. Shell Oil Co., 763 F.3d 919
(8th Cir. 2014) (affirming district court’s decision to dismiss plaintiff’s case after finding
plaintiff bribed a witness to hide evidence and engaged in a pattern of abusive discovery tactics).
Mere prejudice is insufficient for the Court to dismiss this case or enter any other sanctions. See
Menz, 440 F.3d at 1006 (declining to adopt an “extreme prejudice” exception to the rule that a
district court must find bad faith before sanctioning a plaintiff for spoliation of evidence);
Johnson v. Avco Corp., 702 F. Supp. 2d 1093, 1111 (E.D. Mo. 2010). Accordingly, the motion
for spoliation sanctions will be denied.
B. Daubert motions
Select Comfort moves to exclude the testimony of Simon’s proposed experts, Patsy
Duncan, Ernest P. Chiodo, M.D., and Christopher A. Pastore, Ph.D. The parties have submitted
an extensive evidentiary record, including deposition transcripts and expert reports.

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The federal rules of evidence and related case law require that an expert be qualified and
that the expert's testimony be both reliable and relevant. See Fed. R. Evid. 702; Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 152 (1999). A district court acts as a “gatekeeper” when screening
expert testimony for relevance and reliability. Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 590-93 (1993); Russell v. Whirlpool Corp., 702 F.3d 450, 456 (8th Cir. 2012). To satisfy
the reliability requirement, the party offering the expert testimony “must show by a
preponderance of the evidence both that the expert is qualified to render the opinion and that the
methodology underlying his conclusions is scientifically valid.” Barrett v. Rhodia, Inc., 606 F.3d
975, 980 (8th Cir. 2010) (quoting Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757 (8th
Cir.2006)). To satisfy the relevance requirement, the proponent must show that the expert's
reasoning or methodology was applied properly to the facts at issue. Id. A court is entitled to
substantial discretion in determining whether expert testimony should be allowed. “There is no
single requirement for admissibility as long as the proffer indicates that the expert evidence is
reliable and relevant.” Russell, 702 F.3d at 456-57 (quotation omitted). “An expert's opinion
should be excluded only if that opinion is so fundamentally unsupported that it can offer no
assistance to the jury.” Synergetics, Inc. v. Hurst, 477 F.3d 949, 956 (8th Cir. 2007) (internal
quotation marks and citation omitted). See also Minn. Supply Co. v. Raymond Corp., 472 F.3d
524, 544 (8th Cir. 2006) (quotation omitted).
Patsy Duncan
Patsy Duncan is a Certified Mold Remediator (CMR) and Certified Indoor
Environmental Consultant (CIEC). (Duncan Report, Doc. No. 72 at 2) She owns Fungus-AMungus, a company that specializes in mold inspection and mold-related indoor environmental
issues. (Id.) Ms. Duncan was retained by Simon to test the foam pad from his Select Comfort

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mattress to determine if the discoloration on the pad was fungal growth. (Id. at 5) She took a
single tape lift sample the size of one square centimeter from the foam pad on July 26, 2013,
almost five months after Simon claimed to have found mold on his bed. She shipped the sample
to EMLab P&K, an AIHA (American Industrial Hygiene Association) accredited laboratory in
Marlton, New Jersey. EMLab provided a direct microscopic exam analysis and lab report to Ms.
Duncan on July 30, 2013. According to Ms. Duncan, she then “interpreted the lab report and
summarized [her] findings in a report titled ‘Mold Investigation and Sampling Analysis,’ dated
August 1, 2013.”3 (Id. at 4, 11-21) At that time Ms. Duncan qualified those findings as follows:
All samples taken during this project are limited to representing conditions at the time of
sampling. The results do not imply or deny conditions that may have existed prior to our
sampling or inspection.
(Id. at 17) On June 12, 2015, Ms. Duncan visually inspected the mattress stored at Simon’s home
and reviewed photographs of the foam pad taken after Simon discovered the alleged mold in
March of 2013. (Id. at 4, 5)
According to her June 17, 2015 report, “EMLab conducted a direct microscopic
examination of the tape sample lifted from the foam pad [sic] the lab report showed evidence of
Cladosporium4 mold growth with a 3+ density with a general impression stating mold growth.”
(Id. at 6) She opines that the Select Comfort model bed at issue could promote mold growth
because “moisture created by the person sleeping in the bed by perspiration during sleep creates
moisture and a humid environment over time on the untreated foam pad which sits directly on
top of the rubberized air mattress creating a moisture barrier with no ventilation or ability for air

3

Ms. Duncan’s findings from this report are incorporated into her June 17, 2015 report. (Duncan Report
at 7)
4

Cladosporium is one of the most common forms of mold. “There are about 500 species of Cladosporium
and it is the most frequently found genus of fungi in outdoor air in temperate climates.” (Duncan Report
at 15)

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to move through the mattress to help evaporate the moisture.” (Id. at 6) Although Ms. Duncan
does not opine in her report that there was mold on the foam pad in March of 2013, she later
testified on deposition that based on her review of the photographs Simon took of the mattress at
that time, mold was in fact present on the pad in March of 2013. (Deposition of Patsy Duncan
(“Duncan Depo.”), Doc. No. 111-2 at 91:5-92:9; 94:23-95:7)
The Court finds Ms. Duncan’s proposed testimony should be excluded first because she
is not qualified to opine on the existence, type and quantity of mold allegedly found on Simon’s
bed. Ms. Duncan has a B.A. in Economics from the University of Missouri-Columbia; she is not
a microbiologist, aerobiologist, physician, or engineer. (Id. at 12:12-21; 38:24-39:6) She
admitted during her deposition that she is not qualified to analyze or interpret tape lift samples.
(Id. at 35:14-17; 37:5-9) Based on her education and experience in mold remediation and indoor
environmental consultation, Ms. Duncan is qualified only to conduct visual inspections of
properties for mold-like substances and determine an appropriate sampling strategy. Based on
independent lab reports and her own visual inspection, she then develops remediation plans for
properties. (Id. at 34:5–35:2)
Second, Ms. Duncan’s testimony should be excluded because it is not an independent
opinion formed after examining facts or data. Her opinion regarding the existence, type and
quantity of mold found on Simon’s bed was based entirely on the microscopic exam analysis and
report conducted by EMLab, not her own expert analysis:
Q. You're not a microbiologist.
A. No, I'm not.
Q. So...
A. That's why I rely on EMLab who is accredited. They're a microbiologist.
Q. Right.
A. I can rely on their information, because they are an accredited lab, and it's reliable
information.

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(Id. at 139:12-24) No one from EMLab was identified by Simon as a potential fact or expert
witness in this case.
Federal Rule of Evidence 703 permits an expert to rely on data or facts collected by
another expert and use that information to form an opinion. However, Rule 703 does not permit
an expert to simply “parrot” the opinions of other experts. Hill v. Fikes Truck Line, LLC, 2012
WL 5258753, at *4 (E.D. Mo. Oct. 24, 2012) (collecting cases). “An expert’s opinion must be
based upon his or her own application of principles within his [or] her expertise to the facts of
the case.” Id. at *3 (citing Quiles v. Bradford–White Corp., 2012 WL 1355262, at *7 (N.D.N.Y.
Apr. 18, 2012)). “To allow otherwise would deprive the opposing party of the opportunity to
cross examine the expert on the basis for the nontestifying expert's opinion.” Id. Here, Ms.
Duncan did not merely use the EMLab report as data upon which an expert in her field would
reasonably rely to form an opinion, but rather “adopted wholesale the opinion of another expert.”
Id. at *3. She cannot even testify that she independently agrees with the EMLab report because
she admittedly is not qualified to analyze or interpret tape lift samples. Absent any independent
analysis, the Court finds Ms. Duncan’s opinion on this matter unreliable. Accordingly, Select
Comfort’s motion to exclude her report and testimony will be granted.
Ernest P. Chiodo, M.D.
Dr. Ernest P. Chiodo was retained to determine whether Simon suffered any injury or
illness due to mold exposure. (Chiodo Report, Doc. No. 70 at 1, 5) Dr. Chiodo is board certified
in the medical specialties of Internal Medicine, Occupational Medicine, and Public Health and
General Preventive Medicine. He is also certified in the engineering and public health discipline
of industrial hygiene by the American Board of Industrial Hygiene as a Certified Industrial

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Hygienist (C.I.H.) in the comprehensive practice of industrial hygiene, i.e., the study of
occupational and environmental hazards, including air toxins such as mold. (Id. at 1)
After examining Simon and reviewing his medical records, Dr. Chiodo opined that:
“[Simon] has suffered from disease in the form of allergic rhinitis and chronic sinusitis
due to exposure to mold from his contaminated mattress. However, in addition, due to his
treatment with gentamycin he has suffered permanent hearing loss. His treatment with
gentamycin occurred due to his treatment of symptoms believed to be arising out of an
infectious disease but was instead due to his mold exposure due to the contaminated
mattress in this matter. He also was treated with steroids in the form of prednisone. The
treatment with prednisone caused him to develop cataracts. The cataracts are permanent
and may require future surgical treatment. The treatment with prednisone was due to his
symptoms arise [sic] from his exposure to the hidden contamination of his mattress due to
mold.”
(Id. at 5)
In support of their motion to exclude Dr. Chiodo’s testimony and report, Select Comfort
first argues Dr. Chiodo is not qualified to opine on the cause of Simon’s symptomology because
he has no specialized training or education in diagnosing or treating allergies. Next, Select
Comfort argues Dr. Chiodo has failed to perform a scientific differential diagnosis. Lastly, Dr.
Chiodo relies on an unsupported “temporal relationship” between Simon’s alleged discovery of
mold in March 2013 and the onset date of his symptoms, which varies from 2006 to “early 2009”
to 2002.
Simon suggests that Dr. Chiodo will rely on the reports and testimony of Patsy Duncan as
part of the factual basis for his own opinion that Simon was exposed to mold from his mattress.
(See Chiodo Report at 5) As discussed above, the Court has determined that Ms. Duncan’s
proffered opinion testimony does not satisfy the Daubert standards for admission of expert
testimony. As a result, there is no basis for Dr. Chiodo to “rule in” exposure to Cladosporium
mold as a potential cause of Simon’s symptoms because there is insufficient evidence that he

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was in fact exposed to mold from his bed. Data regarding exposure is critical to a determination
of causation. Bland v. Verizon Wireless, (VAW) L.L.C., 538 F.3d 893, 898 (8th Cir. 2008)
(quoting Federal Judicial Center, The Reference Manual on Scientific Evidence 472 (2d ed.
2000)). Even if Ms. Duncan’s testimony was not excluded, Dr. Chiodo failed to test or consider
other potential allergens and did not “rule out” other potential sources of exposure to
Cladosporium mold in Simon’s environment.
The reliability of a specific causation opinion requires the proffered expert to consider
and rule out other likely causes of the plaintiff's alleged ailments, i.e., to perform a proper
differential diagnosis. See, e.g., Jenkins v. Slidella LLC, 2008 WL 2649510, *4 (E.D. La. June
27, 2008). “By failing to consider other causes, a differential diagnosis cannot, by definition, be
reliable.” Berg v. Johnson & Johnson, 940 F. Supp. 2d 983, 990 (D.S.D. 2013) (citing Bland, 538
F.3d at 897).
Simon’s claim rests on injuries resulting from an alleged allergic reaction to
Cladosporium mold. The results of skin testing conducted by Select Comfort’s medical expert,
Dr. H. James Wedner, indicated that in addition to Cladosporium, Simon is allergic to at least
thirty-six different allergens. (Report of H. James Wedner, M.D., Doc. No. 83 at 6-7) Yet Dr.
Chiodo did not conduct any allergy testing on Simon, asserting it was unnecessary. (Deposition
of Dr. Ernest P. Chiodo (“Chiodo Depo.”), Doc. No. 69 at 43:16) Instead, he ruled out symptoms
caused by allergies to other substances based on “[t]he history from [Simon] and review of the
records,” and noted he did not see “any sign of a lack of truthfulness on [Simon’s] part.” (Id. at
41:18-42:11; 47:25-48:12) An expert physician cannot eliminate causes based simply on the
patient's credibility as issues of credibility belong to the jury. Holloway v. Ameristar Casino St.
Charles, Inc., 2009 WL 5169535, at *4 (E.D. Mo. Dec. 18, 2009) (citing Nichols v. Am. Nat'l

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Ins. Co., 154 F.3d 875, 883 (8th Cir. 1998)). Simon relies on Heller v. Shaw Industries, Inc., 167
F.3d 146 (3rd Cir. 1999), for the proposition that a physician need not conduct every possible
test and rule out all possible causes in order to apply a proper differential diagnosis. This is true
so long as the physician “employed sufficient diagnostic techniques to have good grounds for his
or her conclusion.” Id. at 156. See also Holloway, 2009 WL 5169535, at *4 citing Turner v. Iowa
Fire Equipment Co., 229 F.3d 1202, 1209 (8th Cir. 2000) (emphasis in original) (An expert must
engage in a differential diagnosis that is reliably applied and “scientifically eliminate[s] the other
potential causes of a plaintiff's condition.”).
Without reliable evidence of exposure to mold or a reliable differential diagnosis, the
only remaining basis for Dr. Chiodo’s causation opinion is a temporal relationship between the
onset of Simon’s symptoms and the use of his Sleep Number® bed in 2002. According to Dr.
Chiodo, “[Simon’s] symptomatology matches his duration of sleeping on the moldy bed.”
(Chiodo Depo. at 51:21-23) He notes that Simon’s records show no allergic manifestations in
1999 (id. at 48:20-49:12), but that in 2002, he presented with complaints of nasal stuffiness and
shortness of breath at night (id. at 49:19-50:4). The issues “largely resolved” after he discovered
the mold contamination of his bed and stopped sleeping on it. (Id. at 50:4-12) Dr. Chiodo
concludes that because he is “not aware” of any other diet change or “any other exposure
circumstance that matches the temporal sequence of this symptomatology,” he has “ruled out”
any other possible sources of Simon’s allergy symptoms. (Id. at 50:10-51:7)
When asked what facts in the record he relied on to show there was mold in the bed in
2002, Dr. Chiodo replied:
We have the fact that [Simon] bought the bed some period of time beforehand, I think
1999. That would have given ample time for mold to have developed in the bed due to
the design defect of Select Comfort, that specifically the impermeable barrier that would
lead to accumulation of … water and mold growth. And then we have the later discovery

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of the mold, I think, sometime in 2012. So the deductive logic analysis is that there was
mold contamination there during the relevant time period.
(Chiodo Depo. at 52:4-19) Yet Dr. Chiodo provides no basis, other than the alleged onset of
Simon’s symptoms, to conclude that mold formed in his bed in 2002.
It is well-established that a medical opinion on specific causation based primarily, if not
solely, on the temporal proximity between the individual's exposure to a particular source and the
onset of symptoms does not meet Daubert standards. See, e.g., Roche v. Lincoln Property Co.,
278 F. Supp. 2d 744, 764-65 (E.D. Va. 2003) (collecting cases); Jenkins, 2008 WL 2649510 at
*6. “Under some circumstances, a strong temporal connection is powerful evidence of
causation.” Bonner v. ISP Techs., 259 F.3d 924, 931 (8th Cir. 2001) (citation omitted). For
example, “if a person were doused with chemical X and immediately thereafter developed
symptom Y, the need for published literature showing a correlation between the two may be
lessened.” Id. (quoting Heller, 167 F.3d at 154. In the instant case, however, the purported
temporal relationship is negated by the fact that Simon has offered three different onset dates
spanning a seven year period. In both his original and amended complaints, Simon alleges he
“began experiencing ailments” in “early 2009.” (Doc. Nos. 5, 31) In a prior affidavit, Simon
stated he experienced “sudden-onset symptoms” in 2006.

(Simon Aff. at ¶ 3) During his

deposition, Simon testified that beginning in 2002/2003, he began experiencing allergic reactions
that he now associates with mold in his Sleep Number bed. (Simon Depo. at 44:7-22; 78:5-10)
Lastly, Dr. Chiodo has no specialized training or education in diagnosing or treating
allergies or diagnosing cataracts or their causes5 and is, therefore, unqualified to opine on the

5

Dr. Chiodo acknowledged his unfamiliarity with the Lens Opacity Classification System (LOSC)
(Deposition of Ernest P. Chiodo, M.D. (“Chiodo depo.”), Doc. No. 69 at 86:10-12), the most commonly
used standard system for determining cataract types and grading opacities (Sher Report, Doc. No. 81 at 2,
4-5; Doc. No. 153). In connection with their argument that Dr. Chiodo lacks sufficient qualifications to
opine on the causation of Simon’s cataracts, Select Comfort referred to an article titled “The Lens

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cause of Simon’s symptomology. Relying on Robinson v. GEICO General Insurance Co., 447
F.3d 1096 (8th Cir. 2006) and Isham v. Booneville Community Hospital, 2015 WL 3965701
(W.D. Ark. June 30, 2015), Simon argues that physicians with general knowledge are permitted
to testify regarding medical issues that a specialist might treat in a clinical setting. (Doc. No. 118
at 4) Simon argues that Dr. Chiodo’s certifications in internal medicine, occupational medicine
and public health and general preventative medicine make him more qualified than most board
certified allergists or ophthalmologists to testify regarding the medical issues in this case. (Id.)
It is true that a medical expert need not be a specialist in the area of his or her testimony.
Hill, 2012 WL 5258753, at *2 (citing Robinson, 447 F.3d at 1100-01). However, Rule 702 does
require that “the area of the witness’s competence matches the subject matter of the witness’s
testimony.” Id. Rule 702 requires that an expert “possess ‘knowledge, skill, experience, training,
or education’ sufficient to ‘assist’ the trier of fact, which is ‘satisfied where expert testimony
advances the trier of fact’s understanding to any degree.’” Id. (citing 29 Charles Alan Wright &
Victor James Gold, Federal Practice & Procedure: Evidence § 6265 (1997)). Considering that
Simon’s very specific complaints are entirely allergen-based, Dr. Chiodo’s lack of board
certification as an allergist is problematic. See Roche v. Lincoln Property Co., 278 F. Supp. 2d
744 (E.D. Va. 2003); Jenkins v. Slidella L.L.C., 2008 WL 2649510, at *4 (E.D. La. June 27,
2008).

Opacities Classification System III,” by Leo T. Chylack, Jr., MD et al., published June 1993 in the
Archives of Ophthalmology, Volume 111, and marked as Defendants’ Exhibit 44. (Doc. No. 153) Simon
objects and moves to exclude Exhibit 44 for lack of foundation. He argues the article was not submitted
with the reports of Select Comfort’s experts and was not used in his cross-examination. (Doc. No. 158)
Select Comfort responds that Exhibit 44 was not offered for any finding in the article itself but merely to
demonstrate that the LOCS exists. Moreover, the article is self-authenticating and requires no extrinsic
evidence of authenticity to be admitted. Federal Rule of Evidence 902(6). (Doc. No. 159) Accordingly,
Simon’s objection is overruled and his motion denied.

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The Daubert test must be applied with due regard for the specialization of modern
medicine. Dr. Chiodo is without question well-credentialed and has significant experience. He
may not, however, be permitted to testify as to the cause of Simon’s symptomology because he
lacks qualifications in the field of allergy/immunology.
The Court finds Dr. Chiodo has failed to provide an adequate methodology for his
conclusions on causation, and his primary reliance on temporal relationships is insufficient to
satisfy the requirements of Daubert. Accordingly, Select Comfort’s motion to exclude his report
and testimony will be granted.
Christopher A. Pastore, Ph.D.
Dr. Pastore has a Ph.D. in Material Science and is currently Professor of
Transdisciplinary Studies and Co-Director of the Engineering and Design Institute of Kanbar
College of Design, Engineering, and Commerce at Philadelphia University. Dr. Pastore was
retained to testify as a design expert regarding the alleged defect in Simon’s Sleep Number®
bed. It is his opinion that the bed was defective at the time of manufacture and that this defect
was a direct cause of Simon’s injury. According to Dr. Pastore:
[t]he design of the bed system created a safety hazard for the user of the bed. The design
of the bed promotes mold growth at the interface between the air chamber and the foam
topper … where moisture can likely develop, there is negligible ventilation and no light.
Select Comfort had knowledge of this problem prior to selling the product to [Simon].
Remedies were available to Select Comfort but not employed. The design of this bed is
defective and unreasonably dangerous to consumers in normal use.
(Pastore Report, Doc. No. 80 at 12)
Dr. Pastore further opines that:
A manufacturer has the duty to warn of any danger from either intended or unintended by
reasonably foreseeable use of its products. The product provided a danger to the user in
the form of mold growth. This risk was known to Select Comfort from their own

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customer support data6 as well as industry knowledge, but no warnings or care
instructions were presented to the consumer. A warning that identified the likelihood of
mold growing at the interface of the foam topper and air chamber accompanied by care
instructions suggesting the cleaning of the surfaces with a vacuum (preferable HEPA)
and keeping the air chamber and foam topper exposed for a period of time every week
would have prevented the problems that [Simon] experienced.”
(Id. at 6, 12-13)
Select Comfort first argues that Dr. Pastore’s mold and causation opinions should be
excluded because, by his own admission, he is not a microbiologist, medical doctor or fungus
expert and has no experience with mold. (Deposition of Christopher Pastore (“Pastore Depo.”),
Doc. No. 79 at 9:22-10:4; 12:19-13:2; 14:15-15:11; 29:12-13; 82:17-18; 89:18-22) Next, Select
Comfort argues Dr. Pastore’s testimony should be excluded because he has no training,
education or experience in designing or consulting on mattress design and has failed to conduct a
scientifically reliable methodology in his design analysis. Select Comfort also asserts that Dr.
Pastore is not qualified to opine on the sufficiency of the warnings on Simon’s Sleep Number
bed. Lastly, Dr. Pastore’s opinion regarding Select Comfort’s awareness of mold growth on its
mattresses based on customer complaints is unreliable given his lack of expertise with the
Triumph data produced by Select Comfort.
Dr. Pastore’s education and experience in the field of materials, textiles and design
qualify him to testify regarding the properties of the materials that comprise Simon’s mattress
and opine that their configuration in the design of the mattress creates an environment which
could allow mold to grow. An expert need not have experience with the particular product at
issue to be qualified. Appropriate background and experience in a particular field can be
6

Pastore refers to Select Comfort’s customer support data (Triumph system data) showing over 1,800
complaints regarding mold or mildew for the model bed at issue here collected from 1995-1999. (Pastore
Report at 4) The Court notes Select Comfort asserts these entries comprise only 0.4% of customers with
Simon’s model bed and does not necessarily reflect instances of mold growth or even claims of mold
growth. (Doc. No. 55 at 11-12; Doc. No. 149 at 11)

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sufficient to qualify an expert. Stone & Alter Real Estate Co. v. Hobart Corp., 2003 WL
25694932, at *3 (E.D. Mo. Mar. 18, 2003). See also Morton v. Homelite, Inc., 183 FRD 657,
660 (W.D. Mo. 1998) (mechanical engineer and experience with fuel containment and leak
avoidance in aerospace industry qualified expert in design defect case involving multipurpose
saw). Moreover, as both sides acknowledge, the mattress at issue is unique; it is not a standard
innerspring or foam mattress. Instead, the mattress consists of several layers of porous materials
(i.e., pillow top, foam topper) resting upon an air chamber, a vulcanized rubber membrane.
(Pastore Report at 5-9) Select Comfort’s disagreement with Dr. Pastore’s assumptions and
methodology goes to the weight, not admissibility, of his testimony. Synergetics, Inc. v. Hurst,
477 F.3d 949, 956 (8th Cir. 2006). Raising questions about, and exposing gaps in analyses and
conclusions, is a task for Defendants to perform in front of a jury. Hanrahan v. Wyeth, Inc., 2012
WL 2395986, at *4 (E.D. Mo. June 25, 2012).
As for Dr. Pastore’s proffered opinion on warnings, Select Comfort argues that Dr.
Pastore’s lack of expertise in drafting warning labels for mattresses or bedding systems, or
experience regarding whether and when warnings are appropriate for potential mold growth,
renders his testimony unreliable. Again, these arguments about gaps in an expert’s qualifications
or experience relate more to the weight to be given the expert’s testimony than to its
admissibility. Holbrook v. Lykes Bros. S.S.Co., Inc., 80 F.3d 777, 782 (3rd Cir. 1996). See also
Robinson, 447 F.3d at 1100-01 (citations omitted).
The Court finds, however, that Dr. Pastore cannot provide the necessary causal link
between the design of the mattress and mold growth and Simon’s claimed injuries. He is not a
microbiologist or medical doctor; he testified he was not opining as a medical expert that
exposure to mold caused Simon’s injury. (Pastore Depo. at 89:12-15; 14:15-15:19) In

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formulating his opinions, Dr. Pastore relied on Ms. Duncan’s report regarding the presence and
type of mold (Pastore Depo. at 30:7-16; Pastore Report at 3), and the opinions of medical doctors
who provided reports (id. at 89:15-17; 90:12-17). As discussed above, the Court has ruled that
the opinions of both Ms. Duncan and Dr. Chiodo are unreliable and must be excluded. Without a
reliable factual basis for his opinion, Dr. Pastore’s testimony linking mold growth on the
mattress to the “problems Simon experiences” approaches a “leap of faith” condemned by courts.
See Roche, 278 F. Supp. at 761. For these reasons, Select Comfort’s motion to exclude Dr.
Pastore’s report and testimony will be granted in part and denied in part.
Motion for summary judgment
The standards for summary judgment are well settled. In determining whether summary
judgment should issue, the Court must view the facts and inferences from the facts in the light
most favorable to the nonmoving party. The moving party has the burden to establish both the
absence of a genuine issue of material fact, and that it is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247 (1986); Celotex Corp.
v. Carrett, 477 U.S. 317, 322 (1986). Once the moving party has met this burden, the nonmoving
party may not rest on the allegations in the pleadings but must set forth by affidavit or other
evidence specific facts showing that a genuine issue of material facts exists. Fed. R. Civ. P.
56(e). Rule 56(c) “mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex, 477 U.S. at 322.
Causation is an essential element of all of Simon’s claims. In order to prevail, Simon
must establish that his alleged injuries were caused by exposure to mold that grew in his Sleep

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Number bed. “In a negligence claim, Missouri law requires a plaintiff to establish a causal
connection between the defendant’s conduct and the plaintiff’s resulting injury.” Chism v. W.R.
Grace & Co., 158 F.3d 988, 991 (8th Cir. 1998) (citing Kraus v. Celotex Corp., 925 F. Supp.
646, 651 (E.D. Mo. 1996)). “A causal connection between the defendant and the injuryproducing agent must also be established in strict liability claims.” Id. To establish the necessary
causal connection, the plaintiff must prove both causation in fact (“but for” causation) and
proximate causation. Id. (citing Paull v. Shop ‘N Save Warehouse Foods, Inc., 890 S.W.2d 401,
403 (Mo. Ct. App. 1995)). The Missouri Supreme Court has stressed that “but for causation” is
an absolute minimum because it establishes causation in fact. Id. (citing Callahan v. Cardinal
Glennon Hosp., 863 S.W.2d 852, 862 (Mo. 1993)).
Proof of causation related to mold claims requires scientific expertise. Brown for Estate
of Kruse v. Seven Trails Investors, LLC, 456 S.W.3d 864, 870 (Mo. Ct. App. 2014). Simon
attempts to establish causation through the expert testimony of Patsy Duncan and Dr. Chiodo.
The Court has ruled herein that Ms. Duncan’s and Dr. Chiodo’s proffered opinion testimony
does not satisfy the Daubert standards for admission of expert testimony. Thus, the Court will
not consider their testimony on the element of causation in analyzing whether Select Comfort is
entitled to summary judgment as a matter of law.
The Court finds that without expert testimony, Simon cannot raise a genuine issue of
material fact concerning actual exposure to mold and whether exposure to mold caused his
purported ailments, an essential element of his claims.7 Thus, Select Comfort is entitled to
summary judgment on all of Simon’s claims. The Court need not address the remainder of Select
Comfort’s arguments.
7

Indeed, at oral argument, Simon’s counsel conceded that if the testimony and reports of Ms. Duncan
and Dr. Chiodo were excluded, then summary judgment in favor of Select Comfort should be granted.

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Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Exclude the Testimony of Dr.
Ernest P. Chiodo [52] is GRANTED.
IT IS FURTHER ORDERED that Defendants’ Motion to Exclude the Testimony of
Christopher A. Pastore, Ph.D. [54] is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that Defendants’ Motion to Exclude the Testimony of
Patsy Duncan [56] is GRANTED.
IT IS FURTHER ORDERED that Defendants’ Motion for Spoliation Sanctions [58] is
DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Exclude Defendants’ Exhibit 44
[158] is DENIED.
IT IS FINALLY ORDERED that Defendants’ Motion for Summary Judgment [60] is
GRANTED.
A separate Judgment will accompany this Memorandum and Order.
Dated this 14th day of January, 2016.

__________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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