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Smolowitz v. Sherwin-Williams Co.

November 10, 2008


The opinion of the court was delivered by: Amon, United States District Judge



Plaintiffs Richard and Rose Smolowitz filed this action against a large number of paint manufacturers for injuries allegedly caused by Richard Smolowitz's exposure to benzene and benzene-containing products manufactured by defendants. Defendants removed the action to this Court on the basis of diversity jurisdiction. Plaintiffs' claims for relief are based upon negligence, strict products liability, breach of warranty, breach of duty to warn, distribution of an abnormally dangerous product, and loss of consortium. Defendants The Sherwin-Williams Company, Martin-Senour Paints, Mercury Paint Co., Pratt & Lambert United, Inc., Benjamin Moore & Co., and PPG Industries, Inc.*fn1 have filed the instant motion to dismiss plaintiffs' claims pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute or to comply with a court order or, alternatively, for summary judgment pursuant to Rule 56(b). For the following reasons, the Court grants defendants' motion for summary judgment.


Plaintiff Richard Smolowitz worked as a drywall taper and spackler over a thirty year period beginning in the 1950s and ending in the early 1980s. Although he was not a painter, he worked in areas where paint products were regularly used. Plaintiff alleges that his exposure to benzene caused him to contract myelodysplastic syndrome ("MDS"). Although he cannot remember the specific paint products to which he was exposed, plaintiff recalls seeing defendants' brand names on some of the paints that were used on his jobs.

It is undisputed that none of the defendants uses benzene as an ingredient or component of its paints. The solvents used in defendants' oil based paints, however, may contain a trace contamination of benzene due to the fact that the products are based on petroleum and it is not always possible to remove all of the benzene during the manufacturing process. A central factual issue in this case, therefore, is the level of exposure to which plaintiff was subject, and whether that level of exposure can cause MDS.

On September 5, 2006, defendants moved for summary judgment. They argued that because plaintiff is unable to identify the benzene-containing products to which he was exposed at any particular time and place, he could not prove that defendants' products caused his illness. On May 10, 2007, this Court denied defendants' motion for summary judgment. The Court's decision was based in large part on the representation of plaintiff's counsel that he would provide the testimony of expert witnesses who could prove that plaintiff was exposed to oil based paints with sufficient levels of benzene to cause his illness.

Following the Court's denial of defendants' motion for summary judgment, a discovery schedule was set. By order of then Magistrate Judge Kiyo A. Matsumoto dated May 17, 2007, fact discovery closed on August 31, 2007, and plaintiffs were ordered to provide expert reports and disclosures no later than October 1, 2007. Defendants' expert reports and disclosures were due November 1, 2007, and expert discovery was to be completed by December 3, 2007.

Plaintiffs did not submit any expert reports or disclosures by the deadline of October 1, 2007. On November 1, 2007, defendants submitted expert disclosures and the reports of four expert witnesses. On December 3, 2007, Magistrate Judge Matsumoto held a status conference at which both parties appeared, and memorialized it with a Minute Entry stating in part:

The court was very troubled to learn that plaintiff has not provided expert reports and disclosures, in violation of the court's 5/17/07 order that he do so by 10/1/7. Defendants have provided expert reports and disclosures as ordered, however, plaintiff's counsel represented that neither he nor the plaintiff's experts have reviewed the defense reports. Plaintiff's counsel offered no legitimate excuse for his failure to seek a timely extension of the court's expert discovery order, other than to represent that he was having difficulty obtaining information regarding paint quantities.

Minute Entry, December 3, 2007. Judge Matsumoto "very reluctantly order[ed] that plaintiff be granted one final extension to provide expert reports and disclosures by 1/18/08, and advise[d] plaintiff that he will be precluded if he does not meet this extended date." Id. Plaintiffs still have not submitted any expert reports or disclosures.


Defendants filed the instant motion on April 4, 2008 for dismissal pursuant to Federal Rule of Civil Procedure 41(b) or, alternatively, for summary judgment pursuant to Federal Rule of Civil Procedure 56(b). Defendants argue that plaintiffs have failed to comply with Rule 26(a)(2), which requires the disclosure of certain information regarding a party's expert witnesses, and also with the Court's May 17, 2007 and December 3, 2007 orders, and that these failures merit dismissal of all claims pursuant to Rule 41(b). Defendants argue in the alternative that plaintiffs are now precluded from offering any expert witnesses, which they claim renders plaintiffs unable to establish an essential element of their claims, namely that defendants' products were the cause of plaintiffs' injuries. As a result, defendants argue, the Court should grant them summary judgment on all counts.

Plaintiffs respond that they are relying on plaintiff's treating physician, Lewis R. Silverman, M.D., to provide expert testimony on issues of general and specific causation. Plaintiffs concede that they have not provided expert reports or disclosures in accordance with this Court's discovery schedule and subsequent order. Instead, they argue that they had previously provided to defendants a report of Dr. Silverman dated April 17, 2002, and a supplemental report dated February 21, 2007.*fn2 The April 17, 2002 "report" is a one-page letter from Dr. Silverman to plaintiffs' counsel stating, inter alia, that he was currently treating Mr. Smolowitz for Myelodysplastic Syndrome; that Smolowitz reported a history of exposure to oil based paints, thinners and benzene during a 35-year period; and that in his opinion it was "likely to a reasonable medical probability, that Mr. Smolowitz's exposure to benzene during the years that he worked as a dry-wall mechanic is causative for his current hematologic condition." Affidavit of Salvatore V. Azzoline, Esq., May 5, 2008 ("Azzoline Aff.") Ex. 7. The February 21, 2007 "supplemental report" is a nearly identical*fn3 one-page letter to plaintiffs' counsel, ...

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