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In re E. I. du Pont de Nemours and Co. C-8 Personal Injury Litigation

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

December 31, 2019

IN RE E. I. DU PONT DE NEMOURS AND COMPANY C-8 PERSONAL INJURY LITIGATION,
v.
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 EXNERTS

          EDMUND Y. SARGUS, JR. UNITEILSTATES DISTRICT JUDGE

         This 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[1]), 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).

         For the reasons set forth below, the Court GRANTS both of Plaintiffs' 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 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.

         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 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 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 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 at experts.

         II.

         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."); 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).

         III.

         Plaintiff 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.

         In Bartlett, Dr. Cohen offered the following opinions related to the specific cause of Mrs.

         Bartlett's kidney cancer:

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 cancer.
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, ...


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