Simon v. Select Comfort Retail Corp.

RALPH SIMON, Plaintiff, v. SELECT COMFORT RETAIL CORP., et al., Defendants.

No. 4:14-CV-1136 JAR

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

January 14, 2016

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 February22, 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.

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(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.

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-A-Mungus, 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 Comfortmattress 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...