Larson v. Kempker, et al.

A prisoner sued Missouri prison officials, alleging that he was subjected to excessive amounts of secondhand tobacco smoke while imprisoned.  The district court denied Larson’s preliminary injunction motion as to his Eighth Amendment claim and excluded the testimony of his expert witness, Dr. A. Judson Wells.  The U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal of the complaint because “Larson failed to put forth objective evidence that he was subjected to unreasonably high levels of ETS.  No scientific tests were performed to establish the levels of ETS in Larson’s cell.”  The court also held that “Dr. Wells was qualified as an expert to testify regarding the deleterious health effects of ETS.”  However, the court also found that the district court’s “error is nonetheless harmless because Larson still cannot meet Helling’s objective requirement of showing that he was exposed to unreasonably high levels of ETS and that it poses a risk that, in the Supreme Court’s words, ‘is not one that today’s society chooses to tolerate.’”  See also 2005 U.S. App. LEXIS 14418.  See Salter, J., “Appeals court Rules Against Prisoner in Second-hand Smoke Dispute,” Associated Press, July 15, 2005.

405 F.3d 645, 2005 U.S. App. LEXIS 7523 (U.S.C.A. 8th Cir. 2005).