Alabama Supreme Court Affirms Summary Judgment Dismissing “Aerotoxic Syndrome” Claims

On August 30, 2013, the Alabama Supreme Court affirmed the Mobile County Circuit Court’s summary judgment dismissal of eleven claims of “toxic air” exposure by US Airways crew members. Patricia Forames, et al. v. ST Aerospace Mobile, Inc., Case No. 1111434 (Ala. Sup. Ct.) The court did not issue a written decision but included a string citation of rules and cases it relied upon.

The original Complaint named sixteen Plaintiffs (thirteen flight attendants and three pilots) who had flown at various times between December 2009 and April 2010 on a particular Boeing 767 aircraft. In October-November 2009, the defendant, a Maintenance, Repair, and Overhaul facility (“MRO”), had performed scheduled maintenance – a C-1 Check – on the aircraft. The MRO completed its work in late November and never touched the aircraft again.

Five Plaintiffs dropped out or had their claims dismissed prior to May 2012, when the Circuit Court granted summary judgment dismissing the claims of the eleven remaining Plaintiffs.

Four Plaintiffs were flight attendants on a December 28, 2009 flight from Charlotte, North Carolina, to San Juan, Puerto Rico. A fifth Plaintiff worked the same route on December 30, 2009. The remaining six Plaintiffs (four flight attendants and two pilots) had worked a round-trip flight between Charlotte and St. Thomas on January 16, 2010. All of the flight attendant Plaintiffs smelled something during their respective flights and began to experience various forms of discomfort. The pilots on the January 2010 flight never smelled anything but, once told about the smell and flight attendants’ irritations, they began to feel irritations too.

Subject to slight variations among them, the Plaintiffs all claim they experienced headaches, eye and throat irritations, and breathing difficulties during the flights, and various neurologic, pulmonary, and cognitive ailments since – several reported continuing stress and anxiety, difficulty multi-tasking, occasional forgetfulness, and tingling in the extremities.

The Plaintiffs claimed that these ailments resulted from exposure to tricresyl phosphate (“TCP,” or “TOCP” in reference to its active component, triorthocresyl phosphate) while performing their duties at different times on the US Airways Boeing 767 aircraft. TCP/TOCP is found in engine fuel oil and, in theory, can become pyrolized (atomized by heating) and carried into the cabin and cockpit via engine “bleed air.”

Each Plaintiff only alleged one cause of action: negligence. To prove negligence, they had to establish that: (1) the MRO owed them a duty; (2) the MRO breached that duty – in other words, that it had been “negligent” in carrying out its maintenance services; (3) the breach caused injury to each Plaintiff; and (4) the injuries resulted in legally cognizable damages.

In a toxic tort case, the element of “causation” requires proof not only of “event” causation” but also “damage” causation, both “general” and “specific.” Event causation means the defendant’s negligence must have caused the event resulting in damage – in this case, the release of a toxic substance. In the case of a car wreck or house fire, event causation is generally sufficient to link the defendant’s breach of duty with the Plaintiff’s injury. A toxic tort Plaintiff, however, must also show that the emitted toxin is capable of causing the injuries complained of (“general damage” causation) and that it actually caused the particular Plaintiff’s injuries (“specific damage” causation).

The MRO argued that it was entitled to summary judgment because Plaintiffs’ liability theory was not supported by the evidence but, rather, was based entirely on conjecture. With respect to the December 2009 claims, the defendant presented evidence, which Plaintiffs did not rebut, that the odors Plaintiffs smelled may have emanated from equipment the MRO had not serviced, including air conditioning systems in ground equipment.

With respect to causation, Plaintiffs relied entirely upon conclusory expert opinions that TCP/TOCP is capable of causing the type of ailments Plaintiffs complained of (e.g. headaches, anxiety, and breathing difficulties) if a Plaintiff is exposed to a sufficient dose for a sufficient time duration – but they offered no evidence of dosage or duration. They also did not eliminate other possible causes of such ailments, and most of the symptoms are quite common even among those who have never encountered pyrolized engine oil.

The Circuit Court granted summary judgment dismissing all eleven claims and the Plaintiffs appealed directly to the Alabama Supreme Court, which affirmed the dismissal.

Neither the Circuit nor Supreme Court issued a written opinion, but the latter cited decisions on which it had relied, and which supported defendant’s arguments that the Plaintiffs’ claims were founded entirely on speculation and conclusory statements by expert witnesses.

For example, the cited case of Ex Parte Mobile Power & Light1 arose out of a house fire. The Plaintiff hired an expert witness who traced the fire to unconnected wires inside a circuit breaker panel box. He also identified three possible reasons for loose wires, only one of which could be attributed to the defendant and which was no more or less likely than the other two possible causes. The Alabama Supreme Court concluded that summary judgment was proper because:

Proof which goes no further than to show an injury could have occurred in an alleged way does not warrant the conclusion that it did so occur, where from the same proof the injury can with equal probability be attributed to some other cause.2

Similarly, in Martin v. Arnold,3 the Plaintiff’s car was struck from the rear by one of the defendants. The impact forced the car to the other side of the road, where it was struck by a car driven by the defendant. The collision killed Plaintiff’s decedent. Plaintiff could not produce substantial evidence that contradicted the second defendant’s evidence he had tried to avoid the collision but was unable to do so, and second defendant was dismissed on summary judgment.

In Hollis v. Brock,4 the owner of a building destroyed by fire sued a lessee, who it claimed had set the fire and had deliberately burned down the building to put an end to her florist business. The only support for the owner’s theory was the fact that the lessee’s florist business was not doing well financially. The trial court’s grant of the lessee’s motion for summary judgment was affirmed by the Alabama Supreme Court because “[s]peculation and conclusory allegations are insufficient to create a genuine issue for trial.” 5

In Turner v. Azalea Box Co.,6 the Plaintiff had been injured when a pallet broke apparently at a bottling company. No one denied that the bottler had formerly purchased pallets from defendant, but it also purchased from a couple of other suppliers and sometimes repaired and reused broken pallets. A summary judgment motion by the defendant who was one of four possible pallet sellers was granted and affirmed.

The case of Townsend v. General Motors Corp. 7 is of particular interest because of its references to expert testimony. In the Forames Circuit Court case, the defendant had moved to strike Plaintiffs’ expert witnesses, the same experts used in earlier toxic cabin air cases against Original Equipment Manufacturers (“OEM”). Neither the Circuit nor Supreme Court ruled on these motions, which implicitly suggests that their credentials were immaterial. Their testimony simply failed in all respects.

Townsend was a product liability “crashworthiness” case where an expert opined that Plaintiff’s injuries would have been lessened if the defendant had designed the cabin of a truck differently. The court found the testimony insufficient to defeat summary judgment:

Kinsey [the purported expert] was not qualified to render an expert opinion as to whether the alternative design proposed by [plaintiffs] would be any safer than the design challenged in this action. Kinsey could not testify that either [plaintiff] would have escaped injury had he been riding on a platform located behind the cab of the truck. Moreover, although he doggedly insisted that a behind-the-cab placement of the riding platforms would be a safer design, Kinsey could only “assume” that the injuries [plaintiffs] received would have in some way been reduced by the use of that alternative design. This “assumption,” when considered in light of Kinsey’s overall testimony, his lack of formal training or practical experience in designing garbage trucks, or any on-the-road vehicle for that matter, and his lack of training or experience in the “biomechanics” of accidents of this kind, amounts to nothing more than speculation or conjecture on his part as to the relative safety of the alternative design.

We fail to see how Kinsey’s testimony, taken as a whole, could have been of any real benefit to a juror attempting to determine liability in regard to this complex product. Therefore, we must conclude that the trial court did not abuse its discretion in excluding Kinsey’s testimony. Without that testimony, one of the elements necessary to prove a case under the “crashworthiness” doctrine (that the design of the compaction unit was unreasonably dangerous) was missing. Therefore, the plaintiffs did not rebut [defendant’s] prima facie showing made in support of its summary judgment motion, and the trial court properly entered the summary judgment as to [that defendant].8

The remainder of the cases cited by the Alabama Supreme Court9 in affirming Forames stand for the general proposition that summary judgment may be granted without a hearing or allowing discovery to continue if the non-moving party cannot show that such activities would result in the production of anything crucial to defeating a motion for summary judgment.


  810 So. 2d 756 (Ala. 2001).
2  810 So. 2d at 761, quoting Southworth v. Shea, 30 
So. 774, 775 (Ala. 1901).
3  643 So. 2d 564 (Ala. 1994).
4  547 So. 2d 872, 873 (Ala. 1989).
5  547 So. 2d at 873.
6  508 So. 2d 253 (Ala. 1987).
7  642 So. 2d 411, 423 (Ala. 1994).
8  642 So. 2d at 423.
9  Ex parte General Motors Corp., 769 So. 2d 903, 909 (Ala. 1999); Hill v. Chambless, 757 So. 2d 409, 411 (Ala. 2000); Pate v. Rollison Logging Equip., Inc., 628 So. 2d 337, 341 (Ala. 1993); Cofield v. City of Huntsville, 527 So. 2d 1259, 1260 (Ala. 1988); Reeves v. Porter, 521 So. 2d 963, 965 (Ala. 1988); Kitchens v. Maye, 623 So. 2d 1082, 1088-89 (Ala. 1993). Summary judgment was reversed in Billingsley v. Gordon, 340 So. 2d 743, 744 (Ala. 1976), a contrasting case where the summary judgment motion was made orally, without notice, on the first day of trial. The Alabama Supreme Court also cited Rule of Appellate Procedure 53(a) which provides that a judgment without opinion may be affirmed if: (1) an opinion would serve no significant precedential purpose; and, (2)(E) the appeal is from, inter alia, summary judgment and the judgment is supported by the record.