Best v. Lowe’s Home Centers, Inc.

In June 2003, David Best (plaintiff) was shopping for chemicals for his swimming pool at a Lowe’s (defendant) store when he lifted a product called Aqua EZ Super Clear Clarifier (Aqua EZ) off a shelf. When Best lifted the Aqua EZ off the shelf, an unknown quantity of the product splashed onto his face and clothing. The container of Aqua EZ had been punctured by a knife when a Lowe’s employee was opening the shipping box. Best sought medical care and treatment from Dr. Moreno for his injuries. Best detailed his injuries to Dr. Moreno and reported that he had lost his sense of smell completely, known as anosmia. Dr. Moreno administered to Best the University of Pennsylvania Smell Identification Test (UPSIT), which tests olfactory functioning. Best’s score on the test was consistent with complete anosmia. Dr. Moreno reviewed the Material Safety Data Sheet prepared by the supplier of the active ingredient in Aqua EZ and concluded that the inhalation of Aqua EZ had the potential to cause nasal and sinus damage in olfactory nerve endings. The methodology Dr. Moreno used was a differential diagnosis, which is the process of determining what caused a patient’s symptoms by considering all possible causes of the symptoms and then eliminating them based on physical examinations, clinical tests, and case history. Dr. Moreno testified that loss of smell can be caused by a virus, an accident, brain tumor, brain surgery, or exposure to chemicals. After eliminating the potential for other causes of anosmia, Dr. Moreno formed the opinion that inhaling Aqua EZ caused Best to lose his smell. The district court excluded Dr. Moreno’s testimony, holding that his conclusions regarding causation were unscientific speculation. The district court granted summary judgment for Lowe’s.