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Admissibility Rate: .333    (1/3)

In re Meridia Prods. Liab. Litig., 447 F.3d 861 (6th Cir. 2006).  On summary judgment in multi-district products liability litigation, plaintiffs offer expert testimony from pharmacologist Arnold Schwartz, Ph.D.  District court permits him to opine that Meridia increases blood pressure but bars his opinion that its health risks outweigh its benefits.  District court then awards summary judgment to defendants.  Exclusion affirmed.  Although eminently qualified in pharmacology, witness lacked expertise to opine on health effects of high blood pressure, and his opinions on that subject lacked foundation and rested on subjective judgments.

United States v. Rushing, 313 F.3d 428 (8th Cir. 2004).  On remand from United States v. Rushing, 313 F.3d 428 (8th Cir. 2002) (infra), defendant charged with importing Chinese woman for sexual purposes seeks admission of testimony from pharmacologist Dr. Paul Gubbins, who opines that if defendant and woman had had regular sexual relations, defendant would have caught woman's hepatitis.  Trial court excludes testimony.  Exclusion affirmed.  Among other difficulties, expert made unsupported assumptions concerning women's level of infectiousness, assumed sexual relations were more frequent than woman's testimony supported, and failed to account for gender differences affecting progress of hepatitis and its transmissibility.  No abuse of discretion.

United States v. Rushing, 313 F.3d 428 (8th Cir. 2002), subsequent appeal following remand, United States v. Rushing, 338 F.3d 428 (8th Cir. 2004).  Defendant is charged with violating immigration laws to import Chinese woman for sexual services.  At trial, defendant offers testimony from Dr. Paul Gubbins, who is prepared to testify that Chinese woman: (a) had Hepatitis-B when he examined her; (b) probably had Hepatitis-B when she left China, given prevalence of disease there; and (c) if Chinese woman and defendant had sexual relations for period of one year, defendant would probably be infected (but is not).  Trial court excludes testimony as collateral under Fed. R. Evid. 403.  Jury convicts.  Exclusion reversed.  Testimony was highly relevant to government's theory of case.  If defendant did not engage in sex with Chinese woman, government's version of motive would crumble.  Government says its own expert would have testified that woman probably would not have transmitted disease to defendant in one-year sexual relationship, but that issue involves weighing competing expert testimony, which is jury's function.  Government also says defendant's expert is inadmissible under Daubert, but district court did not exclude expert on that basis.  Daubert hearing should be conducted on remand.

Bonner v. ISP Techs., Inc., 259 F.3d 924 (8th Cir. 2001).  Plaintiff alleges that workplace exposures to defendant's organic solvent caused: (1) psychological problems, caused both by initial exposure and subsequent health problems; (2) cognitive impairments and personality disorders, caused by brain damage; and (3) Parkinsonian symptoms caused by brain damage.  Plaintiff offers two causation experts: Dr. Terry Martinez (pharmacologist and toxicologist), and Dr. Raymond Singer (neuropsychologist and neurotoxicologist).  Defendant moves to exclude their testimony under Daubert.  District court bars Dr. Martinez from testifying re Parkinsonian symptoms but permits his testimony re plaintiff's acute post-exposure symptoms.  Dr. Singer is permitted to testify that plaintiff suffers from organic brain dysfunctions and personality disorders consistent with exposure to defendant's solvent at toxic levels.  Defendant appeals from jury verdict for plaintiff.  Admissibility affirmedIn general: Toxic tort plaintiffs must prove both that toxin is capable of causing injuries like plaintiffs' in human beings and that it did in fact cause plaintiff's injuries.  However, first several victims of new toxic tort should not be barred from suit simply because medical literature, which will eventually support causal connection, has not yet been completed.  Plaintiffs need not produce mathematically precise tables equating levels of exposure with levels of harm, but need merely offer evidence from which jurors can reasonably conclude that exposure probably caused injuries.  There is no requirement that plaintiff's expert must always cite published studies on general causation, nor that pertinent epidemiological studies supporting plaintiff's position exist.  Even if trial judge believes there are better grounds for some alternative conclusion, and that there are some flaws in expert's methods, expert's opinion should be admitted if there exist good grounds to support it.  Only question is whether testimony is sufficiently reliable and relevant to assist jury.  Factual basis of expert opinion generally goes to credibility, not admissibility.  As for Dr. Martinez, he testified that acute symptoms suffered by plaintiff immediately after exposure (nausea, headache, tiredness, respiratory problems, trembling, skin irritation) were caused by exposures, basing his testimony on temporal relationship between exposure and symptoms, animal studies on chemical contained in solvent, studies of other chemicals with similar structures, studies of mechanism by which chemical acts on nerve pathways, and plaintiff's medical records.  Defendant argues this testimony was irrelevant, and also prejudicial because it could support improper inference that if chemical could cause short-term symptoms like plaintiff's, it could also cause similar long-term ones.  But whether or not latter inference would be permissible, testimony was relevant both to Dr. Martinez's analysis of whether and to what extent plaintiff was exposed and to other expert's analysis of plaintiff's exposure level.  Defendant also argues testimony was unreliable, because Dr. Martinez cited no epidemiological studies supporting conclusion that solvent could cause relevant symptoms through inhalation as opposed to ingestion, never quantified plaintiff's exposure, did not rule out other potential causes, and had not yet tested his theory.  But immediate temporal association with acute post-exposure symptoms was strong indicium of causation, and defendant's own consumer literature lists inhalation symptoms similar to plaintiff's.  It was not required that expert quantify exposure, only that plaintiff produce evidence of exposure above safe levels.  Plaintiff offered several witnesses to establish that plaintiff was exposed to quantities sufficient to cause absorption through skin of at least one quarter teaspoon.  And Dr. Martinez testified he followed same diagnostic procedures with plaintiff that he normally would follow in clinical practice.  As for Dr. Singer, he testified that exposure to solvent caused plaintiff to suffer permanent organic brain dysfunction manifesting itself in Parkinsonian physical symptoms, cognitive impairments, and personality disorders.  He also testified that inhalation was more potent exposure mechanism than ingestion, and that he followed normal procedures for evaluating patients with potential toxic exposure.  Defendant says Dr. Singer's theory was developed for litigation, not subjected to peer review, had not been published in scientific literature, and was unsupported by epidemiology.  Defendant also says Dr. Singer did not quantify plaintiff's exposure, did not opine on threshold exposure necessary for injury, failed to rule out other potential causes, and did not follow established guidelines for evaluating brain injury.  But district court's role was not to determine whether Dr. Singer's theory was correct, and appellate court's role is not to duplicate district court's analysis, which correctly held after exacting scrutiny that Dr. Singer's testimony was based on sufficiently good science to go to jury.  Defendant offered no studies indicating its solvent was incapable of causing permanent damage.  Defendant argues, finally, that Dr. Singer had no degree or academic work in toxicology, but credentials were unchallenged below.

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