United States District Court, S.D. Ohio, Eastern Division
IN RE E. I. DU PONT DE NEMOURS AND COMPANY C-8 PERSONAL INJURY LITIGATION,
E. I. du Pont de Nemours and Company, Case No. 2:18-cv-00136 This document relates to Angela Swartz and Teddy Swartz
Elizabeth Preston Deavers Magistrate Judge
EVIDENTIARY MOTIONS ORDER NO. 28 PLAINTIFFS'
MOTION TO EXCLUDE DEFENDANT'S SPECIFIC CAUSATION
Y. SARGUS, JR. UNITEILSTATES DISTRICT JUDGE
matter is before the Court on:
(1) Plaintiffs' Motion to Exclude the Specific Causation
Opinions and Testimony of Defendant's Expert Dr. Samuel
Cohen (ECF No. 53), Defendant's Memorandum in Opposition
(ECF No. 71), and Plaintiffs Reply Brief (ECF No. 78); and
(2) Plaintiffs' Motion to Exclude the Specific Causation
Opinions and Testimony of Defendant's Expert Dr. Douglas
Dahl (ECF No. 55), Defendant's Memorandum in Opposition
(ECF No. 69), and Plaintiffs Reply Brief (ECF No. 79).
reasons set forth below, the Court GRANTS
both of Plaintiffs' 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 mat 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 a Linked Diseases,
and that C-8 specifically caused their Linked Disease.
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 month-long trials in
this MDL: Carla Marie Bartlett v. E. I. du Pont
de Nemours and Company, Case No. 2:13-cv-170; David
Freeman v. E. I. du Pont de Nemours and Co.,
2:13-cv-1103; Kenneth Vigneron, Sr. v. E. I. du Pont de
Nemours Company, Case No. 13-cv-136, and; Larry Ogle
Moody v. E. I. du Pont de Nemours Company, Case No.
15-cv-803. The first two trials were bellwether trials and
the second two were non-bellwether trials. The parties
reached a global settlement of the 3, 500-plus cases in
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 that 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.");
John v. Equine Services, PSC 233 F.3d 382, 388 (6th
Cir. 2000) (stating that in Daubert "[t]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).
moves for exclusion of the opinions and testimony of
DuPont's specific causation expert, Samuel M. Cohen,
M.D., PhD, for the same reasons this Court excluded Dr.
Cohen's testimony and opinions in the first trial in this
action, Bartlett. In Bartlett, DuPont
offered Dr. Cohen as its specific causation expert and
Plaintiff moved for exclusion of his opinions and testimony
as irrelevant and unreliable. This Court addressed issues
related to Dr. Cohen in Evidentiary Motions Order No.
("EMO") 1 and EMO 1-A. (EMO 1, Pis' and Def s
Mots, to Exclude Expert Opinions Related to Causation, MDL
ECF No. 4079; EMO 1-A, Pis' Mot. to Exclude Dr. Cohen
Specific Causation Testimony, MDL ECF No. 4226.) Because the
Court finds that the reasons for exclusion of Dr. Cohen's
testimony and opinions in Bartlett are present in
his testimony and opinions in this case, the Court
incorporates both EMO 1 and EMO 1-A here and addresses
portions of them herein in explanation of the issues at hand.
Bartlett, Dr. Cohen offered the following opinions
related to the specific cause of Mrs.
I conclude, to a reasonable degree of medical certainty, that
Mrs. Bartlett's kidney tumor was most likely the result
of her history of morbid obesity and not related to her
claimed exposure to PFOA. Her cancer would have likely
occurred even without any exposure to PFOA.
The [PFOA] exposure that Mrs. Bartlett claims was not
associated [in any study] with an increased risk of kidney
In sum, it is my opinion . . . that the renal cell carcinoma
of Mrs. Bartlett resulted from her history of morbid obesity,
and was not caused by or related to her low exposure to PFOA.
As indicated above, there has been a suggestion of a possible
relationship in some studies between PFOA and kidney cancer.
However, this only occurs at exposures considerably higher
than Mrs. Bartlett's exposure.
(EMO 1-A, Pis' Mot. to Exclude Dr. Cohen Specific
Causation Testimony at 6, MDL ECF No. 4226) (citing Cohen
Report at 5, ...