## Facts

- Stand ‘N Seal “Spray-On” Grout Sealer was a household product used to seal ceramic tile grout, marketed as allowing users to stand and spray rather than apply with a brush.
- After the product’s formula changed to include a fluoropolymer chemical known as Flexipel (Flexipel S-22WS), users across the country reported serious respiratory problems, including chemical pneumonitis, allegedly from exposure to fumes released during use.
- Federal actions by injured users were centralized in an MDL in the Northern District of Georgia for coordinated pretrial proceedings.
- The MDL involved roughly 200 lawsuits asserting product-liability and related claims against entities involved in manufacturing, distributing, and selling Stand ‘N Seal with Flexipel.
- To prove general causation (that the product is capable of causing the type of respiratory injuries alleged), plaintiffs relied on several witnesses, including David Hurst, Henry Spiller, and Roger Wabeke.
- Defendants moved to exclude these witnesses’ testimony under Federal Rule of Evidence 702 and *Daubert*, and also moved to exclude or limit certain affidavits submitted by these witnesses.
- Defendants separately moved for summary judgment on general causation, arguing that without admissible general-causation testimony plaintiffs could not proceed.

## Issues

1. Whether plaintiffs’ general-causation witnesses’ opinions were admissible under Federal Rule of Evidence 702 and *Daubert* (including challenges to particular affidavits).
2. Whether, in light of the admissibility rulings and the summary-judgment record, defendants were entitled to summary judgment on the issue of general causation.

## Decision

- The court denied defendants’ motion for summary judgment on general causation.
- The court denied defendants’ motions to exclude the testimony of David Hurst, Henry Spiller, and Roger Wabeke.
- The court denied the motions to exclude the Spiller and Wabeke affidavits.
- The court granted in part and denied in part the motion to exclude the Hurst affidavit (limiting certain portions), while still allowing the affidavit in part.

## Legal Principles

- An opinion witness under Federal Rule of Evidence 702 must offer testimony that is relevant and based on reliable methods and sufficient facts or data.
- Under *Daubert*, the trial court serves as a gatekeeper, but disputes about the strength of an otherwise reliable methodology typically go to weight and cross-examination, not exclusion.
- In toxic-exposure and product-injury litigation, general causation may be shown through scientifically grounded reasoning drawing on multiple sources (such as medical and toxicological literature, case reports, and analysis of exposure mechanisms), even where the parties contest dose levels and alternative causes.
- Summary judgment under Rule 56 is inappropriate when admissible evidence would allow a reasonable factfinder to find general causation; conflicts between competing scientific opinions are ordinarily resolved at trial.

## Conclusion

In this MDL concerning respiratory injuries allegedly caused by Stand ‘N Seal grout sealer reformulated with Flexipel, the court largely admitted plaintiffs’ general-causation testimony under Rule 702 and *Daubert*, limited only portions of one affidavit, and held that the resulting record created genuine disputes for trial; it therefore denied defendants’ summary judgment motion on general causation and allowed the litigation to proceed.


In re Stand ‘N Seal Products Liability Litigation, 2009 WL 2224185 (2009)