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Admissibility Rate: .308    (4/13)

Wills v. Amerada Hess Corp., 379 F.3d 32 (2d Cir. 2004), cert. denied, 126 S. Ct. 355 (2005).  Seaman's executrix blames his death from squamous cell carcinoma on exposure to benzene and polycyclic aromatic hydrocarbons aboard defendants' vessels.  To show causation, plaintiff offers testimony from forensic toxicologist Dr. Jesse H. Bidanset.  District court strikes testimony as unreliable and awards summary judgment to defendants.  Exclusion affirmedDaubert applies in Jones Act proceedings notwithstanding relaxed burden of proof on causation.  District court permissibly found that expert offered insufficient support for his "oncogene" theory of causation.  Expert also failed to rule out seaman's smoking and alcohol consumption as causes.

Plourde v. Gladstone, No. 02-9136 (2d Cir. June 27, 2003) (unpublished).  Plaintiff develops medical symptoms after defendant's neighboring farm is sprayed with pesticide.  To show causation, plaintiff offers expert testimony from toxicologist Dr. Robert K. Simon.  District court excludes testimony and awards summary judgment to defendants.  Exclusion affirmed.  Expert is not medical doctor, and district court therefore properly found him unqualified to offer opinions based on differential diagnosis, or to rely on other doctors' diagnoses.

Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256 (2d Cir. 2002).  Worker alleges he developed asymmetric polyneuropathy and other neurological symptoms after exposure to xylene in paint at job site supervised by Amtrak.  Jury at first trial returns multimillion dollar verdict against Amtrak, but district judge concludes that verdict is against weight of evidence and orders new trial, relying in large part on Amtrak evidence suggesting that worker's symptoms are fabricated (e.g., surveillance video of worker walking without apparent difficulty, medical records from subsequent car accident in which neurological symptoms made no appearance, Amtrak expert's opinion that worker suffers at most from pinched nerve).  Case is reassigned to new trial judge.  Amtrak then moves under Daubert to exclude testimony from worker's three experts: (1) Dr. Jacqueline Moline, worker's treating physician, who opines that worker suffers from neurological conditions caused by xylene exposure; (2) toxicologist Dr. Jonathan S. Rutchik, who opines on generic causation; and (3) industrial hygienist Jack Caravanos, who opines on general causation and exposure levels.  District court strikes their testimony and awards summary judgment to Amtrak.  Exclusion affirmed.  Worker argues that district court was too aggressive in its gatekeeping and "traded a judicial robe for a white lab coat" by improperly weighing testimony's credibility rather than merely evaluating its reliability.  But "[t]he district court's rigorous analysis of the methods that plaintiffs' experts used in reaching their opinions was appropriate given the facts of this case."  District court did not err in conducting extensive analysis of underlying literature on which treating physician and toxicologist relied, nor in concluding that literature did not support finding of generic causation at relevant exposure levels.  Trial court likewise acted within its discretion in rejecting industrial hygienist's estimates of xylene concentration, where expert failed to consider variables he acknowledged were relevant.

Burleson v. Tex. Dep't of Crim. Justice, 393 F.3d 577 (5th Cir. 2004).  Prisoner blames his throat and lung cancer on inhalation of radioactive thorium dioxide emitted by welding tools in prison workshop.  In support of his section 1983 claim alleging cruel and unusual punishment, he offers causation testimony from toxicologist Dr. Arch Carson.  Magistrate judge grants defendants' motions to exclude toxicologist's testimony and for summary judgment.  Exclusion affirmed.  Toxicologist says he performed no dose assessment because he relies on "hot spot" theory, according to which "the primary risk factor for cancer is the local microscopic dose of radiation that is received by the one cell that transforms into cancer, not the total dose of radiation to the body."  But magistrate permissibly found scientific support for that theory to be weak.  Meanwhile, toxicologist offered no epidemiologic studies showing statistically significant link between thorium dioxide exposure in dust or fumes and plaintiff's type of lung and throat cancer.  No abuse of discretion.

Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581 (5th Cir.), cert. denied, 540 U.S. 825 (2003).  Industrial sweeper truck strikes and kills pedestrian.  Driver of truck admits smoking marijuana five or six hours earlier.  In wrongful death suit versus driver and others, plaintiff offers opinion of toxicologist Dr. Michael Evans that marijuana usage impaired driver's reaction time.  District court grants defendants' Daubert objection and strikes testimony, and jury returns verdict for defendants.  Exclusion reversed.  Toxicologist's testimony was supported by peer-reviewed literature and relied on generally accepted principles.  In concluding that testimony was inadmissible because it did not itself establish causal connection between marijuana ingestion and accident, district court erred.  Impairment of driver's reaction time was relevant, and expert testimony on that point would assist trier of fact.  Nor did absence of evidence on driver's precise dosage defeat admissibility.  Nor again did prejudicial impact of expert's testimony outweigh its probative value.  Remanded for new trial.

Marmo v. Tyson Fresh Meats, Inc., No. 05-1906 (8th Cir. Aug. 3, 2006).  Were plaintiff's medical problems caused by exposure to hydrogen sulfide gas released from defendant's wastewater treatment lagoons?  At trial, district court excludes causation testimony from plaintiff's toxicologist, Dr. Harriet Ammann, and awards summary judgment to defendant.  Exclusion affirmed.  Toxicologist did not examine plaintiff, inquire about other toxic exposures, or address potential confounding factors.  Toxicologist also admitted that causation standard she employed was much lower standard than medical causation and that she could not associate it with any rate of error.  No abuse of discretion.

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.

Clausen v. M/V New Carissa, 339 F.3d 1049 (9th Cir. 2003).  Vessel spills 70,000 gallons of crude oil near Oregon's Coos Bay, state's richest oyster-growing area.  Within three weeks, 3.5 million oysters have died.  Oyster farmers sue vessel owners and operators to recover damages for loss of their stock.  To prove causation, oyster farmers offer testimony from marine biologist Dr. Ralph Elston, who opines that contact with oil particulates caused oysters to develop lesions, which became infected, causing their death.  Defendants counter with their own marine biologist, Dr. Jerry Neff, who opines that oysters' lesions were caused by low salinity in bay due to heavy rainfalls.  District court denies defendants' motion to strike Dr. Elston's testimony, and jury awards damages to plaintiffs.  Admissibility affirmed.  Both experts performed differential diagnosis in which they first "ruled in" six potential causes: (1) infectious disease; (2) freezing trauma; (3) acute toxic effects of non-oil contaminants; (4) acute toxic effects of oil; (5) low salinity; and (6) low-level toxic effects of oil.  Both then "ruled out" causes (1) through (4).  Dr. Elston also "ruled out" cause (5), settling on cause (6) -- contact toxicity.  Defendants complain on appeal that Dr. Elston lacked sufficient scientific basis to "rule in" contact toxicity, but defendants' own expert did the same, and had previously written that oil exposure can cause gill lesions in fish.  It is true, as Dr. Elston conceded, that support for his theory in published literature relating specifically to shellfish is sparse, but experts need not always rely on peer-reviewed literature in "ruling in" potential causes, and may rely on other objective, verifiable evidence.  Here, in "ruling in" contact toxicity, Dr. Elston relied on histopathological investigations, detailed history of oyster site, government reports re oil spill, temporal and physical proximity of spill, and literature on contact toxicity in other species.  Similarly, in "ruling out" low salinity, he relied on historic rainfall patterns, government salinity tests, and failure of oysters to exhibit characteristics of anaerobic low salinity mortality.  No abuse of discretion.

Goebel v. Denver & Rio Grande Western R.R., 346 F.3d 987 (10th Cir. 2003).  Railroad engineer develops neurological symptoms and cognitive deficits following exposure to diesel fumes in tunnel at high altitude.  In engineer's FELA action, jury awards verdict of $755,000, after hearing toxicologist Dr. Daniel T. Teitelbaum testify to causation, but court of appeals vacates and remands for new trial because record reflects no Daubert analysis by district court.  See Goebel v. Denver & Rio Grande Western R.R., 215 F.3d 1083 (10th Cir. 2000) (infra).  On remand, district court conducts Daubert inquiry and holds toxicologist's testimony to be admissible.  Parties stipulate to entry of judgment in amount of prior jury verdict, with railroad reserving right to appeal Daubert ruling.  Admissibility affirmed.  Railroad contests toxicologist's opinion on general causation, and also faults differential diagnosis he conducted to opine on individual causation.  But district court acted within its discretion in concluding that his opinions reasonably flowed from data on which he relied.

Dodge v. Cotter Corp., 328 F.3d 1212 (10th Cir.), cert. denied, 540 U.S. 1003 (2003).  In toxic tort suit arising from operation of uranium mill, plaintiffs offer expert testimony from: (1) geologist Glen Miller, to show presence in environment of toxic substances from mill; (2) Dr. Malin Dollinger, to provide physician testimony that exposure to those toxic substances caused plaintiffs' health conditions; and (3) toxicologist Martyn Smith, Ph.D., to provide additional causation testimony.  Defendant files 47-page motion to strike, appending thousands of pages of expert reports, deposition testimony, and relevant literature.  District court concludes that motion and appendix violate local rules re length, and instructs defendant to file motion and appendix not exceeding twenty pages apiece.  District court also advises parties it will convene Daubert hearing but would prefer not to hear live testimony unless absolutely necessary.  At hearing, defendant seeks to introduce testimony from three of its own experts, but district court refuses, citing defendant's failure to notify court in timely manner.  After four hours of argument, district court then reserves ruling until trial.  During in camera voir dire at trial, district court issues oral rulings that testimony will be admitted, offering explanations focusing primarily on expert's qualifications.  Jury returns verdict for plaintiffs.  Admissibility reversed.  District court's various limitations on defendant's ability to present information, taken together, constituted abuse of discretion.  Moreover, district court did not prepare sufficiently detailed findings on reliability issues to permit appellate review.  Remanded for new trial.

Goebel v. Denver & Rio Grande Western R.R., 215 F.3d 1083 (10th Cir. 2000).  Train breaks down in Moffat Tunnel -- which is six miles long and crosses continental divide in Colorado at altitude of nearly two miles.  Conductor attributes subsequent neurological symptoms to prolonged inhalation of diesel fumes while trapped in tunnel.  Over railroad's objection, district court admits testimony from conductor's toxicologist to this effect.  Admissibility reversed.  District courts enjoy considerable leeway in procedures they adopt to evaluate reliability, but nothing in record indicates that district court conducted any Daubert inquiry at all, as it should on remand.  [For developments following remand, see Goebel v. Denver & Rio Grande Western R.R., No. 02-1391 (10th Cir. Oct. 9, 2003), supra.]

United States v. Ledesma, No. 99-8026 (10th Cir. Feb. 14, 2000) (unpublished).  Criminal defendant seeks to offer testimony from chemist-toxicologist re effects of methamphetamine use on perceptions and memories of witnesses who were or had been drug abusers.  Exclusion affirmed.  District court was concerned that witness's training and experience focused primarily on detection of toxic substances and chemicals in tissue and fluids, not on pharmacological or psychological effects of methamphetamine use.  Although witness may have read some literature on effects of drug use on perception and memory, district court was also concerned that her testimony would be time-consuming and potentially confusing to jury.  Same general points could be elicited from other witnesses.  District court acted within its sound discretion in concluding that proffered testimony, even if reliable, would not have assisted jury.

United States v. Hansen, 262 F.3d 1217 (11th Cir. 2001), cert. denied, 535 U.S. 1111 (2002).  Prosecution offers testimony from toxicologist at trial of defendants for conspiracy to commit various environmental crimes.  Admissibility affirmed.  Defendants argue on appeal that toxicologist's testimony was unreliable and irrelevant but did not raise objections to testimony at trial.

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