United States District Court, S.D. Ohio, Eastern Division
IN RE E. I. DU PONT DE NEMOURS AND COMPANY C-8 PERSONAL INJURY LITIGATION, Angela Swartz and Teddy Swartz
E. I du Pont de Nemours and Company, No. 2:18-cv-00136.
Elizabeth Preston Deavers Magistrate Judge
EVIDENTIARY MOTIONS ORDER NO. 27
A. SARGUS, JR. JUDGE
Motion to Exclude Plaintiffs Specific Causation
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), 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.
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.
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.
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
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.
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
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.
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.
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).
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).
Specific Causation Testimony
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
Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 678 (6th
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
Id. (quoting Tamraz v. Lincoln Elec. Co.,
620 F.3d 665, 674 (6th Cir. 2010)).
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)).
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.
Assumption or Presumption of Specific Causation.
first argues that Dr. Margulis' opinion should be
excluded because he starts with the ...