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In re E. I. Du Pont De Nemours and Company C-8 Personal Injury Litigation

United States District Court, S.D. Ohio, Eastern Division

December 18, 2019

IN RE E. I. DU PONT DE NEMOURS AND COMPANY C-8 PERSONAL INJURY LITIGATION, Angela Swartz and Teddy Swartz
v.
E. I du Pont de Nemours and Company, No. 2:18-cv-00136.

          Elizabeth Preston Deavers Magistrate Judge

          EVIDENTIARY MOTIONS ORDER NO. 27

          EDMUND A. SARGUS, JR. JUDGE

         Defendant's Motion to Exclude Plaintiffs Specific Causation Expert

         This matter is before the Court on Defendant's Motion to Exclude the Opinion and Testimony of Plaintiff Angela Swartz's Specific Causation Expert Dr. Vitaly Margulis (ECF No. 48, Swartz Docket[1]), Plaintiffs' Memorandum in Opposition (ECF No. 63), and Defendant's Reply Brief (ECF No. 75). For the reasons that follow, the Court DENIES Defendant's Motion.

         I.

         The litigation between the parties in this multidistrict litigation ("MDL") began in 2001 in a class action in West Virginia state court captioned Leach v. E. I. du Pont de Nemours & Co., No. 01-C-698 (Wood County W.Va. Cir. Ct.) ("Leach Case"). The Leach Case ended in November 2004 when the parties entered into a class-wide settlement ("Leach Settlement Agreement"). (ECF No. 820-8.) In the Leach Settlement Agreement, the parties fashioned a unique procedure to determine whether the approximately 80, 000 members of the class ("Leach Class") would be permitted to file actions against Defendant E. I. du Pont de Nemours and Company ("DuPont") based on any of the human diseases they believed had been caused by their exposure to ammonium perfluorooctanoate ("C-8" or "PFOA") discharged from DuPont's Washington Works plant. The procedure required DuPont and the plaintiffs to jointly select three completely independent, mutually-agreeable, appropriately credentialed epidemiologists ("Science Panel") to study human disease among the Leach Class.

         The Science Panel engaged in what ultimately became one of the largest epidemiological studies ever convened, utilizing nearly 70, 000 blood samples and medical histories of the Leach Class members, and lasting seven years. In 2012, the Science Panel delivered Probable Link Findings for six human diseases ("Linked Diseases"): kidney cancer, testicular cancer, thyroid disease, ulcerative colitis, diagnosed high cholesterol (hypercholesterolemia), and pregnancy-induced hypertension and preeclampsia. The Probable Link Finding means that for the Leach Class members it is more likely than not that there is a link between their exposure to C-8 (i.e., drinking water containing at least .05 ppb of C-8 for at least one year) and their Linked Disease. Ultimately, over 3, 500 individuals filed cases in this MDL, all of whom alleged that they are Leach Class members, are subject to the Leach Settlement Agreement, have Linked Diseases, and that C-8 specifically caused their Linked Diseases.

         The Science Panel also delivered No. Probable Link Findings for approximately 50 diseases it studied. Any Leach Class member who received a No. Probable Link Finding was prohibited from filing a personal injury action against DuPont as a result of being subject to the Leach Settlement Agreement, regardless of whether any other study or expert disagreed with the Science Panel' No. Probable Link Finding.

         Beginning in February 2015, this Court held four trials in this MDL: Carlo Marie Bartlett v. E. I. du Pont de Nemours and Company, No. 2:13-cv-l 70; David Freeman v. E. I. du Pont de Nemours and Co., 2:13-cv-l 103; Kenneth Vigneron, Sr. v. E. I. du Pont de Nemours Company, No. 13-CV-136, and; Larry Ogle Moody v. E. I du Pont de Nemours Company, No. 15-cv-803. Each trial lasted at least four weeks. The parties reached a global settlement of the 3, 500 cases in February 2017.

         Since the global settlement, over 50 cases have been filed ("Post-Settlement Cases"). As did the plaintiffs in the pre-settlement cases, the plaintiffs in these Post-Settlement Cases allege mat they are Leach Class members, are subject to the Leach Settlement Agreement, have a Linked Diseases, and that C-8 specifically caused their Linked Disease. Pursuant to the Court's trial schedule, the parties have filed their motions directed at experts.

         II.

         A. Expert Testimony

         The Federal Rules of Evidence, in particular Rule 702 and 104(a), govern the admission of expert witness testimony and require that the trial judge "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). Because Rule 702 "requires that the evidence or testimony 'assist the trier of fact to understand the evidence, '" expert testimony "which does not relate to any issue in the case is not relevant and ergo, nonhelpful." Daubert, 509 U.S. at 590-90. "In other words, there must be a 'fit' between the proposed testimony and the question(s) presented by the case at bar." Daubert, 509 U.S. at 591.

         To determine whether expert testimony is "reliable," the court's role, and the offering party's responsibility, "is to make certain that an expert... employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Generally, the expert's opinions must reflect "scientific knowledge ... derived by the scientific method," representing "good science." Daubert, 509 U.S. at 590, 593. The test of reliability is, however, a "flexible" one. Kumho Tire Co., 526 U.S. at 140.

         The Supreme Court mandates that a district court exercise its responsibility in acting as the "gatekeeper" for expert testimony. Daubert, 509 U.S. at 588; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). This role, however, is not intended to supplant the adversary system or the role of the jury. In re Scrap Metal Antitrust Litig., 527 F.3d 517, 531-32 (6th Cir. 2008). Arguments regarding the weight to be given any testimony or opinions of an expert witness are properly left to the jury. Id. "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Id. (quoting Daubert, 509 U.S. at 596).

         The burden is on the party proffering the expert report to demonstrate by a preponderance of proof that the opinions of their experts are admissible. Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001). Any doubts regarding the admissibility of an expert's testimony should be resolved in favor of admissibility. Fed.R.Evid. 702 Advisory Committee's Notes ("[A] review of the case law... shows that rejection of the expert testimony is the exception rather than the rule."); Jahn v. Equine Services, PSC, 233 F.3d 382, 388 (6th Cir. 2000) (stating that in Daubert "[f]he Court explained that Rule 702 displays a liberal thrust with the general approach of relaxing the traditional barriers to opinion testimony") (internal quotations omitted).

         B. Specific Causation Testimony

         Defendant moves to exclude the testimony and opinion of Plaintiff s specific causation expert. As did all of the specific causation experts in the cases in this MDL, Plaintiffs expert utilized differential diagnosis to reach his ultimate conclusion, which the Sixth Circuit describes as follows:

This circuit has recognized differential diagnosis as an "appropriate method for making a determination of causation for an individual instance of disease." Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 260 (6th Cir. 2001); see also Best, 563 F.3d at 178 (stating that a causation opinion based upon a reliable differential diagnosis may satisfy the requirements of Rule 702). Differential diagnosis is "a standard scientific technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated." Hardyman, 243 F.3d at 260 (internal quotation marks omitted). As we explained in Best, a physician who applies differential diagnosis to determine causation "considers all relevant potential causes of the symptoms and then eliminates alternative causes based on a physical examination, clinical tests, and a thorough case history." 563 F.3d at 178 (internal quotation marks omitted).

Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 678 (6th Cir. 2011).

         Calling something a 'differential diagnosis' or 'differential etiology' does not by itself answer the reliability question but prompts three more:

(1) Did the expert make an accurate diagnosis of the nature of the disease? (2) Did the expert reliably rule in the possible causes of it? (3) Did the expert reliably rule out the rejected causes? If the court answers "no" to any of these questions, the court must exclude the ultimate conclusion reached.

Id. (quoting Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 674 (6th Cir. 2010)).

         '"The core of differential diagnosis is a requirement that experts at least consider alternative causes.'" Best v. Lowe's Home Centers, Inc., 563 F.3d 171, 179 (6th Cir. 2009) (quoting In re Paoli Railroad Yard PCB Lit., 35 F.3d 717, 759 (3d Cir. 1994)). Yet, "doctors need not rule out every conceivable cause in order for their differential-diagnosis-based opinions to be admissible." Id. at 181. '"The fact that several possible causes might remain uneliminated .. only goes to the accuracy of the conclusion, not to the soundness of the methodology.'" Jahn, 233 F.3d at 390 (quoting Ambrosini v. Labarraque, 101 F.3d 129, 140 (D.C. Cir. 1996)).

         III.

         Plaintiff Angela Swartz offers Vitaly Margulis, M.D., F.A.C.S. as her specific causation expert. Dr. Margulis was presented as a specific causation expert in the case of Carla Marie Bartlett, the first trial in this MDL, which was held in September 2015. In Evidentiary Motions Order No. ("EMO") 1, this Court granted in part and denied in part DuPont's Motion to Exclude the Opinions of Dr. Margulis. (EMO 1, Pis' and Def s Mots, to Exclude Expert Opinions Related to Causation, MDL ECF No. 4079.) Du Pont contends that the portions of Dr. Margulis's Expert Opinion that the Court did not exclude in EMO 1 should now be excluded because Dr. Margulis (1) begins with an assumption or presumption of specific causation, (2) bases his opinion on a fiction that the Science Panel made a scientific determination and unreliably employs two different methodologies, (3) adopts the "no safe dose" theory, and (4) uses a made-for-litigation approach that differs from the approach he uses in his regular professional practice outside the courtroom.

         1. An Assumption or Presumption of Specific Causation.

         DuPont first argues that Dr. Margulis' opinion should be excluded because he starts with the ...


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