# Conde v. Velsicol Chemical Corp.

> District Court, S.D. Ohio · October 13, 1992 · 804 F. Supp. 972

URL: https://www.frixlaw.com/law-library/cases/1651740

## Case

- **Full name:** James P. CONDE, Et Al., Plaintiffs, v. VELSICOL CHEMICAL CORP., Defendant
- **Court:** District Court, S.D. Ohio
- **Decided:** October 13, 1992
- **Citations:** 804 F. Supp. 972; 1992 U.S. Dist. LEXIS 15996; 1992 WL 293444
- **Precedential status:** Published
- **Opinion:** Opinion by Smith
- **Judges:** George C. Smith
- **Cited by:** 41 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1651740

## How later opinions describe it (automated extraction)

- discussing lack of epidemiological studies regarding adverse health effects of ehlordane

## Opinion text

OPINION AND ORDER
GEORGE C. SMITH, District Judge.
Plaintiffs James P. Conde, Rhonda Conde, Ryan Conde, Autumn Conde, and Kimberly Conde bring this action alleging that Defendant Velsicol Chemical Corporation (“Velsicol”) caused them personal injuries and deprived them of the economic value of their home when Swat Exterminators applied Velsicol’s Gold Crest C-100 insecticide to their home. The Condes allege that their exposure to chlordane, the insecticide, caused them headaches, nausea, diarrhea, liver problems, blood irregularities, immune system dysfunction, and other personal injuries. They further allege their house is uninhabitable.
Velsicol has filed the following motions:
1. For summary judgment on issues of medical causation filed June 1, 1992.
2. For summary judgment on fear and emotional distress claims filed June 1, 1992.
3. For summary judgment on product defect claim filed June 1, 1992.
4. For summary judgment on claims for punitive damages filed June 1, 1992.
5. For summary judgment on property damage claims filed June 1, 1992.
6. For summary judgment on warning claims filed June 1, 1992.
7.
In limine
to exclude opinion testimony of plaintiff Dr. James P. Conde filed June 1, 1992.
8.
In limine
to exclude opinion testimony of Peter McConnachie, Ph.D. and Arthur Zahalsky Ph.D. filed June 1, 1992.
9.To strike improper Rule 56 material filed July 16, 1992.
10.
In limine
to exclude evidence of testimony relating to the Illinois grand jury proceeding filed July 16, 1992.
11.
In limine
to exclude evidence and testimony concerning the August 11, 1987 Memorandum of Understanding and Accompanying Voluntary Product Withdrawal filed July 16, 1992.
12.
In limine
to exclude from evidence the July 1987 EPA draft Technical Support Document filed July 16, 1992.
13. Second motion to strike improper Rule 56 materials filed August 21, 1992.
14.
In limine
to exclude evidence and testimony relating to (1974-75) EPA Cancellation proceedings filed September 11, 1992.
15. To exclude evidence and testimony of the 1986 Carcinogenicity Assessment Group Report (CAG) filed September 11, 1992.
16.
In limine
to exclude opinion testimony of Robert K. Simon, Ph.D. relating to product defect filed September 11, 1992.
17.
In limine
to exclude opinion evidence concerning the alleged nature of untested house debris as “hazardous waste” filed September 11, 1992.
18.
In limine
to exclude opinion evidence by Dr. Simon and others concerning alleged presence of transnonachlor in plaintiffs’ blood filed September 11, 1992.
19.
In limine
to exclude evidence concerning death and alleged illnesses of family cat filed September 10, 1992.
20.
In limine
to exclude evidence and testimony regarding certain state regulatory proceedings and actions filed September 10, 1992.
On June 23, 1992, plaintiffs filed a motion for leave to file a. second amended complaint.
The Court will address in this Opinion plaintiffs’ motion- for leave to file an amended complaint and Velsicol’s motions for summary judgment on medical causation, the product defects claim, and the property damage claims, as well as its motions to exclude the opinion testimony of Drs. Conde, McConnachie, and Zahalsky, the motions to strike Rule 56(e) material, and the motion to exclude the July 1987 EPA Technical Support Document. In considering the motions, the Court first outlines the basic facts relating to the Condes’ claims against Velsicol. Next the Court grants plaintiffs’ motion for leave to file an amended complaint. Then the Court con
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siders the motion for summary judgment on the product defects claim. The Court holds that, reserving ruling on the element of medical causation, plaintiffs state a claim under the consumer expectation test, but that defendant is entitled to summary judgment under the risk benefit analysis.
The Court then turns to the evidentiary motions and denies Velsicol’s June 1, 1992 motions to exclude the opinion testimony of Drs. Conde, McConnachie, and Zahalsky. Next the Court grants Velsicol’s motion to strike the Epstein article, Harbison affidavit, and Hollingsworth letter, but denies the motion as to the Infante article. The Court denies Velsicol’s motion to exclude the 1987 TSD.
Then the Court grants Velsicol’s motion for summary judgment on medical causation, concluding that plaintiffs have failed to offer opinion testimony admissible under Rules 702 and 703, Fed.R.Evid. from which a jury could find by a preponderance of the evidence that the Condes’ exposure to chlordane caused their symptoms and diseases. Having granted summary judgment on medical causation, the Court further concludes that Velsicol is consequently entitled to summary judgment on plaintiffs’ product defects claim. Finally, the Court denies Velsicol’s motion for summary judgment on the property damage claims, finding a conflict of material fact about whether the Conde home has suffered compensable property damage.
BASIC FACTS
The Court views the facts in the light most favorable to plaintiffs. When there are fact conflicts, the Court accepts the facts asserted by plaintiffs as true.
In 1982 Darrell Mitchell contracted with the Condes to construct a new home for them at 33449 Wills Hill Road, Pomeroy, Ohio. Mitchell was to provide the Condes with a full pre-treatment of insecticide to protect the home against termites and other pests. He failed to do so. In the Spring of 1983 the Condes had already moved into the house although construction still continued. To provide some termite protection, Mitchell and John Swepston, owner/operator of Swat Exterminating (Swat), agreed to. a partial treatment. Mitchell drilled holes into concrete block, and on or about April 8, 1983, Swat applied 400 gallons of Velsicol’s Gold Crest C-100 solution to the basement walls and the soil perimeter of the Conde home. Mitchell was then to refill the holes, but he failed to do so.
Plaintiffs assert that following the application, chlordane seeped into the living areas, vaporized, and emitted toxic fumes throughout the house. The Condes allege that soon after their exposure all family members experienced headaches, nausea, diarrhea, and other physical discomfort caused by Velsicol’s chlordane. On April 16, 1983, Kimberly Conde, then 15 months old, was hospitalized for dehydration following a bout of severe vomiting, diarrhea, and fever.
When the Condes’ search for a cause of their symptoms turned to the termiticide applied in April 1983, Velsicol told them it was safe to remain in their new home. However, they continued to experience headaches, nausea, and other physical symptoms. Their cat died unexpectedly in August 1986, and subsequent tests revealed chlordane in the cat’s liver. In November 1986, the Condes moved out of their home. Since then, they have been living in a double-wide mobile home located elsewhere on the same property. Once the Condes moved from their home, their acute symptoms subsided.
Defendant Velsicol asserts, and plaintiffs do not controvert, that the highest average level of chlordane ever measured in the Conde’s home is roughly one microgram per cubic meter (1 ug/m
3
), which is Vm part per billion.
Plaintiffs state that chlordane can persist in the human body for up to 30 years. It is retained mainly in fat cells. However, defendant states, and plaintiffs do not controvert, that the Condes are unable to show the presence of chlordane in their bodies at all, despite numerous fat samples, blood samples, urine samples, and liver and bone
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marrow biopsies.
1
Two of the more serious long-term consequences identified by plaintiffs are that Ryan Conde suffers from an elevated bili-rubin count
2
and that Rhonda Conde has suffered blood irregularities and neurological injury. All plaintiffs argue that due to their chronic exposure to chlordane they have suffered damage to their immune systems and central nervous systems.
Defendant asserts that the Ohio Department of Health has reported that the Conde’s house would be habitable with a relatively minor clean-up.
3
Plaintiffs do not controvert this assertion in their responsive brief.
Plaintiffs have settled their claims against Swat. The suit continues against Velsicol, the manufacturer of the termiti-cide (chlordane).
AMENDED COMPLAINT
Plaintiffs’ June 23, 1992 motion for leave to file a second amended complaint is GRANTED. All counts relating to Swat Exterminators, Inc. of the amended complaint are DISMISSED with prejudice. Velsicol is not prejudiced by plaintiffs’ elimination of all references to Swat Exterminating from the complaint. Swat is no longer a defendant. Plaintiffs’ claims against Velsicol have always been based on Velsicol’s conduct. If Velsicol believes it has a viable defense based on Swat’s alleged negligence, it is free to pursue that defense at trial. Velsicol’s remaining objections to assertions made in the Second Amended Complaint are the subject of other pending motions and will not be considered here.
PRODUCTS DEFECTS
In
Knitz v. Minster Machine Co.,
69 Ohio St.2d 460 , 432 N.E.2d 814 (1982), the Ohio Supreme Court held that:
A product design is in a defective condition if it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or if the benefits of the challenged design do not outweigh the risks inherent in such design.
This formulation of the test for a defective product is based on § 402A of the Restatement (Second) of Torts, which was adopted by the Ohio Supreme Court in
Temple v. Wean United, Inc.,
50 Ohio St.2d 317 , 364 N.E.2d 267 (1977). Section 402A provides:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The Rule stated in Subsection (1) applies although
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(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
In
Leichtamer v. American Motors Corp.,
67 Ohio St.2d 456 , 424 N.E.2d 568 (1981), a Jeep rollover case, the Ohio Supreme Court extended the § 402A analysis to design defects. The court stated that “[wjith regard to design defects, the product is considered defective only because it causes or enhances an injury.”
Id.
at 465, 424 N.E.2d 568 .
In
Cremeans v. International Harvester Co.,
6 Ohio St.3d 232 , 452 N.E.2d 1281 (1983) the Ohio Supreme Court held that
Knitz, supra,
articulated a single test with two alternatives and that a plaintiff can prove that a product is defective by showing either: that the product design is in a defective condition because the product fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner (the consumer expectation test); or, that judged using relevant criteria, the product design is in a defective condition because the benefits do not outweigh the risks inherent in such design (the Risk/Benefit Test).
Cremeans,
6 Ohio St.3d 232 , 452 N.E.2d 1281 at syllabus. Plaintiffs offer evidence to support both theories.
Velsicol maintains that plaintiffs claim against Swat was that the termiticide was misapplied. Defendant argues plaintiffs’ misapplication theory is inconsistent with their products liability claim.
Second, Velsicol asserts that the highest average measured air concentration of chlordane in the Condes’ house has been less than one micron per cubic meter (1 ug/m
3
). In contrast, the permissible OSHA exposure level for workers exposed to chlordane 8 hours a day, 5 days a week, 50 weeks a year is 500 ug/m
3
. 29 C.F.R. § 1910.000 .
Consumer expectation.
Under the consumer expectancy prong, the defendant will incur liability for a defective product if the product is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.
Knitz, supra,
at syllabus.
In
Knitz, supra,
the court indicated that the question of whether a product was defectively designed could be considered by a jury using hindsight, that is, a product may be found to be defective in design even if it satisfies ordinary consumer expectations if the jury determines that the product’s design embodies “excessive preventable danger.” 69 Ohio St.2d at 465-466 , 432 N.E.2d 814 . The consumer expectancy test is designed to reflect the commercial reality that, implicit in a product’s presence on the market, is a representation that it will safely do the jobs for which it was built.
Id.
at 460 , 432 N.E.2d 814 . The test utilizes an objective standard and not the subjective expectations of a particular user or consumer.
Leichtamer, supra,
67 Ohio St.2d at 467 , 424 N.E.2d 568 ;
Delk v. Holiday Inns, Inc.,
545 F.Supp. 969, 971 (S.D.Ohio 1982).
Velsicol contends that the presence of trace levels of chlordane in living areas cannot be regarded as an unexpected or unintended consequence of using chlordane as a termiticide. Velsicol notes that the 1983 EPA Report commented on numerous public studies which “demonstrated the possible presence of trace levels of termiti-cides in treated homes.” Defendant’s Motion for Summary Judgment at 19. Whether or not objective consumers expected trace levels of chlordane in the living areas of their homes is not dispositive under the consumer expectation test. The relevant inquiry is whether the objective consumer thought the product was safe and would not cause adverse health effects.
In
Delk, supra,
the court held that the manufacturers of carpeting and wall covering were not liable under the consumer expectation theory of strict liability for plaintiffs’ injuries sustained in a hotel fire where the manufacturers did not advertise or represent to motel purchaser that their products were fire and smoke resistant.
Plaintiffs argue that Velsicol’s labels, manuals, and advertisements contained
*980
misstatements which raised consumer expectations about product safety, including:
—Independent study reveals “no evidence of any long-term latent effect.”
—Chlordane “does not pose a threat to health when it has been used properly.”
—There is “little opportunity for you or your pets to be exposed” to Chlordane,
—Chlordane is one of the “safest insecticides presently in use for control of termites.... ”
Plaintiffs assert that the second and third representations above were contrary to Velsicol’s own pre-1983 studies. Dr. Simon’s January 1992 deposition at pp. 132-134 and 140-141; W.P. Cahill and N.C. Jimenez’s March 3, 1983 Velsicol internal report. Further, plaintiffs urge, any ordinary consumer would be led to believe by the above representations that Velsicol’s chemical products were lethal to termites but would not harm them. Finally, plaintiffs allege that at the end of 1984 Dr. Conde talked with a Velsicol employee and a researcher that employee referred him to, both of whom assured him that Velsicol had no problem with chlordane and that chlordane was safe, not toxic. Dr. Conde’s October 30, 1986 deposition at pp. 24-26; Dr. Conde’s September 26,1991 depositions at pp. 206-207.
Velsicol responds that plaintiffs have admitted that no Velsicol communication ever came to their attention prior to the application of Gold Crest C-100 to their house. Supplemental Answer of Plaintiffs to Interrogatories, No. 7 (April 29, 1992) (Attachment C to Velsicol’s Reply). Although plaintiffs assert that the Velsicol documents containing the alleged misstatements reached home owners, they fail to offer any evidence supporting that allegation. Velsicol alleges that most of the documents were directed to professional pest control operators. Finally, defendant argues that none of the documents suggest that there is absolutely no exposure to trace amounts of chlordane. Even had plaintiffs read the documents, they could not reasonably have formed the opinion that they would not be exposed to average levels below 1 ug/m3 (Vieth of a part per billion), the highest level of chlordane ever measured at the Condes’ home.
Dr. Conde’s alleged telephone conversations with a Velsicol employee and Dr. Calo occurred long after the product was applied. Moreover, Dr. Conde testified that he did not believe the representations they made. Dr. Conde’s September 27, 1991 deposition at p. 241; Dr. Conde’s September 28, 1991 deposition at pp. 563-664 and 567-568.
Risk-benefit analysis.
Under Ohio law, the relevant factors in considering whether a product is defective under the risk/benefit test include: (1) the likelihood that the product will cause injury; (2) the gravity of the danger posed by the design; (3) the mechanical and economic feasibility of an alternative design; (4) the relative costs of producing, distributing and selling an alternative design; and (5) new or additional harms. that may result from an alternative design.
Knitz,
69 Ohio St.2d at 466 , 432 N.E.2d 814 ;
Cremeans,
6 Ohio St.3d 232 , 452 N.E.2d 1281 . The plaintiff need not prove all five factors to establish that the defendant’s product is defective, but rather, “[t]he appropriate factors, and the weight allocated to each factor, will vary with the facts of each case.”
Cremeans,
6 Ohio St.2d at 235, 452 N.E.2d 1281 (footnote omitted).
Velsicol first argues that the 1983 EPA report conclusively establishes that Gold Crest C-100 is not a defective product. Although the 1983 EPA report concludes that the benefits of chlordane use outweigh the risks, the EPA explicitly stated that the risk assessment was incomplete. The report concludes that:
After consideration of the available information on the risks and benefits for the termiticides the Agency concludes that the benefits from their use to control subterranean termites are extremely high.
The risk assessment for these chemicals is incomplete
because of the lack of definitive data on the extent of human exposure, the amount of exposure, and most importantly, data on the critical biological end point (health effect)
*981
in humans exposed to these pesticides. At this time in assessing the risks and benefits associated with the total national use of the termiticides based on available data, and
considering the lack of data
outlined above, the Agency finds that the benefits from the use of the currently registered pesticides outweigh the potential risks.
The Agency recognizes that in individual cases where termiticides were improperly applied or misused in treating a residential dwelling, the risks from exposure may exceed the benefits.
1983 EPA Report at V-4, V-5 (emphasis added). Contrary to Velsicol’s assertion, the 1983 EPA report does not “conclusively” establish that the benefits of chlordane outweigh the risks. Rather, the report indicates that the risk assessment is “incomplete” due to the “lack of data.” Finally, the EPA concludes that in a misapplication case “the risks from exposure may exceed the benefits.”
Plaintiffs principally rely on a July 1987 Technical Support Document (TSD) prepared by the USEPA. The TSD “presents EPA’s evaluation of the risks and benefits of [chlordane, heptachlor, aldrin and diel-drin] for use on subterranean termites.” TSD, Executive Summary at i. Plaintiffs have submitted evidence which suggests that the 1987 TSD is a final agency document representing the current EPA assessment of the risks and benefits associated with the use of cyclodien insecticides.
See
Memorandum of Daniel Banolo, Affidavit of William Marcus. The report relies on a National Academy of Sciences Natural Research Center’s Committee on Toxicology-(NRCCT) report which states that it could not determine a level of exposure to chlordane below which there would be no biologic effect under conditions of prolonged exposure.
Id.
Velsicol counters that the 1987 TSD is a draft that has never been issued by the EPA. Further, the Report is incomplete and lacks a concluding section, has never been peer-reviewed, and has been disavowed by USEPA officials in charge of the Office of Pesticide Programs at the time of its prepáration. Moreover, Velsicol asserts the 1987 TSD is irrelevant to the 1983 risk-benefit analysis required here. (The termi-ticide chlordane was applied to the Condes’ home in the spring of 1983.) Finally, the 1987 TSD is inadmissible hearsay. As such, plaintiffs cannot rely on it to resist defendant’s motion for summary judgment.
The 1983 USEPA Report balanced the estimated $100 million to $3.5 billion dollar annual damage to buildings from termites against the less effective and more costly alternatives available in early 1983. It concluded that “chlordane, heptachlor, and ald-rin are the most cost-effective chemicals for termite control.”
Id.
at III — 7. The 1983 USEPA Report also identified health risks from these termiticides. The 1983 report concluded: the benefits from the termiticides are very high and those benefits outweigh potential risks (even though trace levels of the termiticides will remain in the building treated). Plaintiffs counter that the 1987 TSD reached the opposite conclusion.
Id.
at pp. i & ii.
Next Velsicol argues that it is entitled to summary judgment on the risk-benefit test because plaintiffs’ expert testimony fails to create a genuine issue of fact about whether Gold Crest C-100 is defective. -Dr. Robert K. Simon, an analytic chemist, testified for plaintiffs that technical chlordane could have been manufactured so as to remove a number of unspecified “volatile components.” Defendant maintains that testimony is. entitled to no .weight because Dr. Simon has no expertise in or knowledge about the manufacture of termiticides or other chemicals. Plaintiffs’ memorandum contra makes
no
response to this argument. It does assert that Dr. Simon explained why the product was unsafe during his 1992 deposition at pp. 98-99 and 103-107. Similarly, Velsicol argues that plaintiffs’ expert Dr. Arthur C. Zahalsky, a geneticist and microbiologist, has no training or experience to permit him to express an opinion on alternative methods for manufacturing chlordane. Again, plaintiffs did not respond to this argument in their brief.
In its reply brief, Velsicol advances four reasons Dr. Simon’s opinions are of no evi-
*982
dentiary weight. First, Dr. Simon’s conclu-sory opinion that the product is unsafe is based on his apparent opinion that a product must be absolutely safe. Second, he bases his opinions on the 1987 TSD. Dr. Simon’s November 13, 1991 deposition at p. 39. That report has no evidentiary value. Third, Dr. Simon’s opinion is based on the alleged inadequacies of Velsicol’s warning labels, but plaintiffs have withdrawn that claim. Fourth, Dr. Simon has no expertise about alternative pesticides, alternative methods of pesticide control, and no knowledge about which pesticides were available for use as a termiticide in 1983.
Conclusions.
Defendant has failed to demonstrate that it is entitled to summary judgment dismissing in the entirety plaintiffs’ products defects claims. Under the
consumer expectation test,
consumers of residential termiticides in the Spring of 1983 would reasonably have believed that there would be no serious adverse health consequences from the application of Velsicol’s Gold Crest C-100 to their residence. Consequently, if plaintiffs have admissible evidence'to offer from which a jury could find by a preponderance of the evidence that the application of the chlordane to the Condes’ residence caused the diseases and symptoms reported by Dr. Conde, they would be entitled to- have the matter go to the jury for their determination.
Plaintiffs have offered no admissible evidence supporting a charge to the jury on a
risk-benefit analysis
theory. Plaintiffs’ experts have no knowledge of alternative termiticides available during or prior to the Spring of 1983, no knowledge of how termiticides are manufactured, and the like. Consequently, although plaintiffs have offered evidence about the likelihood that Velsicol’s product will cause, injury and the gravity of the danger posed by the product, they have failed to offer admissible evidence regarding the mechanical and economic feasibility of an alternative design, the relative costs of producing, distributing, and selling an alternative design, and the new or additional harms that may result from an alternative design. The 1987 TSD is not evidence which cures this deficiency. First, the 1987 TSD was not available to the industry during the Spring of 1983 and before. Second, the product alternatives relied upon in the 1987 TSD were not generally available in the Spring of 1983.
EVIDENTIARY MOTIONS
Many of the motions for summary judgment now at issue cannot be properly evaluated without first deciding several threshold evidentiary issues. Accordingly, the Court will first proceed to these issues.
Motion by Velsicol
In Limine
to Exclude Opinion Testimony of Plaintiff Dr. James P. Conde
Defendant has filed a motion
in limine
to exclude the intended expert opinion testimony of plaintiff, Dr. James P. Conde, on the grounds that Dr. Conde cannot be considered an expert witness under Fed. R.Evid. 702 and 703 because of his biased, non-objective status in this case as an interested party.
4
Velsicol further maintains that Dr. Conde’s testimony should also be excluded under Fed.R.Evid. 403 because its inflammatory nature would render it unduly prejudicial in comparison to its limited probative value.
5
Plaintiffs maintain that
*983
defendant’s motion is merely an attempt to deprive plaintiffs of their best medical evidence through the use of misleading and factually deficient allegations regarding Dr. Conde. Plaintiffs further argue that it is only because Velsicol cannot contradict Dr. Conde’s medical testimony that it has purposely decided to use “egregious ‘tactics and maneuvers’ to attempt to exclude such testimony.” Plaintiffs’ Statement Contra at p. 1.
This is not the first instance the Court has had occasion to consider Dr. Conde’s dual role in this litigation. Dr. Conde is a plaintiff in this action. He is also a licensed doctor of osteopathic medicine who specializes in family practice. He is the primary treating physician for the Conde family. In October 1991, Magistrate Judge Abel, in response to defendant’s motion to compel answers to deposition questions, concluded that “Dr. Conde’s role as a party to this lawsuit is predominant and ... defendant will be allowed to depose him without being required to compensate him for his time [under Fed.R.Civ.P. 26(b)(4)(C).].” October 24, 1991 Order at 7.
6
Magistrate Judge Abel’s ruling on the prior discovery dispute sought to reconcile a novel question of law. The question presented in that dispute was whether the Federal Rules of Civil Procedure require the defendant to provide expert witness fees in order to take the plaintiff’s deposition because the plaintiff was an “expert” as to some issue in the case. Magistrate Judge Abel answered the question in the negative. He ruled that defendant would be allowed to depose Dr. Conde for an additional four hours without payment of expert witness fees. However, when the four hours of deposition time contemplated in the October 24, 1991 Order proved to be inadequate, Magistrate Judge Abel further ruled:
Dr. James P. Conde
is ORDERED to sit for the completion of his deposition. He has already testified for three and a half days. I had hoped that the expert portion of his deposition could be completed within four hours. All counsel agree that Dr.. Conde’s testimony is not completed and that
defendants reasonably have the right to complete Dr. Conde’s deposition as an expert. Defendants are ORDERED to pay Dr. Conde the hourly rate he previously requested for his expert testimony
1
Dr. Conde also remains under a duty to be re-deposed as a non-expert, limited to events occurring subsequent to (or first known to defendants subsequent to) the conclusion of his previous deposition as a non-expert. Dr. Conde is not entitled to compensation for his “non-expert” testimony.
December 17, 1991. Order at 2-3 (emphasis added).
The October 24 and the December 17 Orders contemplate that Dr. Conde would qualify as an expert witness as plaintiffs’ treating physician. Often the testimony of the primary health care provider is the most relevant medical testimony concerning a plaintiff’s alleged injuries.
Velsicol argues that Dr. Conde should not be allowed to testify as an expert under Rules 702 and-703 because he lacks the required objectivity required of expert witnesses. Velsicol argues that Magistrate Abel’s October 24, 1991 Order establishes as the law of the case that Dr. Conde cannot be considered an expert witness be
*984
cause his role as a party is predominant. Defendant also argues that Dr. Conde’s extreme emotional involvement in this case precludes his role as an expert witness.
7
In
Viterbo v. Dow Chemical Co.,
646 F.Supp. 1420, 1425-26 (E.D.Tex.1986) (citing
Johnston v. United States,
597 F.Supp. 374 (D.Kan.1984)), the court observed that “where an expert becomes an advocate for a cause, he therefore departs from the ranks of an objective expert witness, and any resulting testimony would be unfairly prejudicial and misleading.” The “most important” factor for the court in excluding the opinion testimony of plaintiff’s expert in
Viterbo
was that the expert “affirmatively sought employment from the plaintiff’s attorneys in this case; thus, he ... did not view Viterbo’s condition objectively.”
Id.
Similarly, in
In re Air Crash at Detroit Airport,
737 F.Supp. 427 , 430 (E.D.Mich.1989)
aff'd without opinion,
917 F.2d 24 (6th Cir.1990), the court held that the president of a national “right to life” organization could not provide expert testimony as to when a fetus becomes viable because the witness could not be considered to be objective. Both of these cases, however, turn, at least in part, on the fact that the experts had preconceived notions before the litigation commenced.
Dr. Conde’s affidavit opposing the motion to exclude his opinion testimony states: he conducted objective tests and made objective evaluations; he listened to the complaints of the plaintiffs; and, he conducted physical examinations and referred family members to specialists when medically indicated. Further, his affidavit states that he has undertaken an exhaustive study of the medical and scientific literature regarding chlordane and its effects on animals and humans.
Should this case proceed to trial, Velsicol is clearly free to challenge Dr. Conde’s methodology, diagnosis, assumptions, and qualifications through cross-examination and through the presentation of its own witnesses. Velsicol may also argue its position that he has let his concern for his and his family’s health and their economic interest in this lawsuit affect his professional judgment. Ordinarily when the Court is confronted with a “battle of the experts, the jury must decide the victor.”
In re Bendectin Products Liability Litigation,
732 F.Supp. 744, 748 (E.D.Mich.1990) (citing
Ferebee v. Chevron Chemical Co.,
736 F.2d 1529, 1535 (D.C.Cir.),
cert. denied,
469 U.S. 1062 , 105 S.Ct. 545 , 83 L.Ed.2d 432 (1984)). The question here is whether defendant has demonstrated that Dr. Conde is so obsessed with what he perceives to be Velsicol’s tortious conduct that he cannot function as an expert witness at trial.
Defendant cites several cases in which courts have held that plaintiffs cannot provide expert testimony in their own cases.
See Proteus Books Ltd. v. Cherry Lane Music Co.,
873 F.2d 502 (2nd Cir.1989);
Yoder Bros., Inc. v. California-Florida Plant Corp.,
537 F.2d 1347 (5th
*985
Cir.1976);
In re Broad Associates Ltd. Partnership,
110 B.R. 632 (Bankr.D.Conn.1990). In
Proteus Books, supra,
the Court of Appeals for the Second Circuit held that the trial court’s ruling that an employee of the plaintiff could not qualify as an expert because he was an interested party was not “manifestly erroneous.” 873 F.2d at 515 . In
Yoder Bros., supra,
the court rejected “the isolated self-serving statements of the [defendant’s] officers ... [as] not enough to constitute substantial evidence for the jury on the causation, issue_” 537 F.2d at 1371 . In
Broad Associates, supra,
the bankruptcy court accorded no weight to the opinion testimony of the president of a Chapter 11 debtor’s corporate general partner as to estimates of the debtor’s cash flow. The court stated that “[although [the president] is an accountant, no evidence was offered that his opinion was based on an analysis of the potential cash flow of the building. He provided no detail or documentation in support of his naked assertion, and I find that his testimony was lacking in candor, self-serving, speculative, and entitled to no weight.” 110 B.R. at 637 . Contrary to Velsicol’s assertion, these cases do not impose a rigid requirement that parties are not permitted to provide opinion testimony. Rather, in
Yoder Bros.
and
Broad Associates,
the testimony was admitted but accorded little weight or credibility.
Proteus Books
only supports the proposition that a trial court has the discretion to exclude opinion testimony when the expert has an interest in the case. In this Court’s experience, employees of a party not infrequently give “expert” testimony at trial.
Plaintiffs cite
Nelco Corp. v. Slater Electric, Inc.,
80 F.R.D. 411 (E.D.N.Y.1978) for the proposition that one individual may be an “expert” as to some matters and an “actor” as to others.
Nelco
is a patent infringement case where the court permitted the witness to be deposed as to facts known to him as the co-inventor of the allegedly infringed device but not as an expert retained in anticipation of trial on the issue of infringement. • The result in
Nelco
is similar to Magistrate Judge Abel’s prior rulings on the discovery dispute, particularly the quoted portions from his December 17, 1991 Order. That Order recognizes that Dr. Conde wears two hats in this case.
Defendants argue that even if Dr. Conde’s expert opinions meet the requirements of Rules 702 and 703, the opinions should nevertheless be excluded under Rule 403 because their prejudicial impact outweighs their probative value. Under Rule 403, the Court may exclude otherwise relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice that admission of the evidence would pose. Velsicol argues that the personal attacks on the defendant and its attorneys will cause undue prejudice and confuse the issues before the jury.
8
The cases Velsicol cite in support of its Rule 403 argument are of only marginal relevance in making this decision. For example, Velsicol cites
United States v. McFadyen-Snider,
552 F.2d 1178, 1182 (6th Cir.1977) which held that evidence that “serve[s] only to cater to the passions of the jury” must be excluded. Examination of that case, however, reveals that the Court of Appeals held that testimony that the defendant was a prostitute and had “sold herself to wealthy men” should have been excluded in a criminal wire fraud prosecution. The other cases cited by Vel-sicol, also criminal cases, are equally unhelpful when applied to this case.
Conclusion.
Determinations of the permissible limits of expert testimony is left to the sound discretion of the trial court.
Finch v. Monumental Life Insurance Co.,
820 F.2d 1426, 1432 (6th Cir.1987);
United States v. Green,
548 F.2d 1261, 1268 (6th Cir.1977). “Juries are not as stupid as it pleases some people to be
*986
lieve.”
General Mills Supply Co. v. SCA Services, Inc.,
697 F.2d 704, 718 (6th Cir.1982). It is the province of the jury to weigh the credibility of witnesses, including witnesses testifying as experts.
Coal Resources, Inc. v. Gulf & Western,
865 F.2d 761 , 775 (6th Cir.1989). Thus, although an expert may ostensibly be clothed with the added credibility which inures to experts testifying at trial, juror common sense, cross-examination, argument by the party-opponent’s attorneys, the testimony of the party-opponent’s own expert witnesses, and a cautionary instruction from the Court, if required, will normally assure that the jury fairly evaluates the expert’s testimony.
Dr. Conde is plaintiffs’ only medical causation expert.
9
He is a family practitioner with no specialized medical training or experience in toxicology, immunology, or any of the other specialties related to the medical causation questions in this case. His testimony does not clearly link his clinical findings and the test results to the medical literature.
10
Dr. Conde has a substantial emotional and economic stake in this lawsuit. His and his family’s health is very important to him, and both he and his family have been under great stress as a result of the symptoms and diseases they have experienced over the past nine years.
11
The economic well-being of his family is also at risk. They have abandoned their expensive home, and they have invested substantial monies and energies in prosecuting this lawsuit.
The Court reserves ruling on the admissibility of Dr. Conde’s testimony at trial as a medical causation expert but will fully credit his testimony for purposes of ruling on the pending case-dispositive motions.
Motion by Velsicol
In Limine
to Exclude Opinion Testimony of Peter McConna-chie, Ph.D. and Arthur Zahalsky Ph.D.
Velsicol moves
in limine
to exclude the testimony of two of plaintiffs experts, Drs. McConnachie and Zahalsky, on the grounds that the doctors’ proposed opinions are not admissible under Rules 702, 703, and 403, Fed.R.Evid.
12
because their theories of immune system dysregulation are not generally accepted in the relevant sciéntifie and medical communities and would be unduly prejudicial in comparison to their limited probative value. Further, defendant argues that Drs. McConnachie and Zahalsky cannot offer evidence of medical causation because they are not medical doctors and, consequently, cannot make differential diagnoses.' Velsicol also argues that their opinions - should be excluded because the immune system effects they allegedly measure are not compensable injuries.
Plaintiffs counter that yesterday’s scientific skepticism has become today’s scientific certainty. They maintain that the fact that there may be a dispute in the scientific community concerning the effects of chlordane on the human body should not be reason to exclude the testimony of Drs. McConnachie and Zahalsky at the pretrial stage.
The admissibility of expert testimony is governed by Fed.R.Evid. 702. In
*987
accordance with the provisions of that rule, a four-part test is used to evaluate the admissability of expert testimony. The proponent of expert testimony must demonstrate that (1) the expert is qualified (2) testifying on a proper subject matter (3) which is in conformity to a generally accepted explanatory theory (4) the probative value of which outweighs its prejudicial effect.
United States v. Kozminski,
821 F.2d 1186, 1194 (6th Cir.1987),
aff'd on other grounds,
487 U.S. 931 , 108 S.Ct. 2751 , 101 L.Ed.2d 788 (1988);
United States v. Green,
548 F.2d 1261 (6th Cir.1977);
Sterling v. Velsicol Chemical Corp.,
855 F.2d 1188 (6th Cir.1988).
Velsicol challenges the competency of Drs. McConnachie and Zahalsky to testify based on all four elements of the test set out above. First, Velsicol characterizes plaintiffs’ experts as “alchemists,” “charlatans,” “inept professors,” and “phonies.” Defendant’s July 16,1992, Reply Statement at 2.
Velsicol also argues that the subject matter upon which plaintiffs’ experts seek to testify is not “proper” within the meaning of the four part test outlined above, because subclinical effects (the presence or absence of molecules on the surface of cells), such as immune system dysregulation, is not a compensable injury under Ohio law.
Immune System dysregulation.
In
Sterling, supra,
the court held that expert testimony based on the theory of “clinical ecology”
13
was inadmissable because the American Academy of Allergy and Immunology and the California Medical Association had rejected the theory as an unproven methodology lacking any scientific basis in either fact or theory. In addition, the court noted that although “numerous other professional organizations and societies, ..., have not discredited the potential usefulness of clinical ecology, few have endorsed either its scientific usefulness or the results of any experiments conducted under the guise of clinical ecology.”
Sterling,
855 F.2d at 1208 .
The court in
Sterling
also emphasized the fact that plaintiffs’ experts had not conducted tests in support of their conclusions nor had they examined or interviewed the plaintiffs on whose behalf they had testified in the toxic tort litigation arising from the defendant’s dumping of hazardous waste which contaminated the local water supply. “Without the requisite clinical tests and a widely accepted medical basis for reaching its conclusions,” the court stated, “plaintiffs’ expert opinions are insufficient to sustain plaintiffs’ burden of proof that the contaminated water damaged their immune system.”
Id.
at 1209 .
Unlike the experts in
Sterling ,
Drs. McConnachie and Zahalsky have conducted tests on the Condes. Plaintiffs assert, without pointing to specific deposition testimony, that one of defendant’s own experts, Dr. John Salvaggio, agrees that the types of tests performed by Drs. McConnachie and Zahalsky can measure immune system irregularities. Plaintiffs’ Memorandum Contra Velsieol’s Motion to Exclude Opinion Testimony of Drs. McConnachie and Zahalsky, at p. 6, citing Depositions of Dr. John Salvaggio.
14
- Thus, it appears that a concern of the
Sterling
court, namely, the lack of testing, has been met here. Accordingly, the determinative question becomes whether the theories and methodologies employed by plaintiffs’ experts are “generally accepted within the relevant medical community.” In connection with Velsicol’s motion for summary judgment on medical causation, the Court will ad
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dress below the issue of whether Drs. McConnachie’s and Zahalsky’s testimony about immune system dysregulation is sufficient, if credited, for a jury to find that the Condes’ exposure to chlordane caused injury to their immune systems.
Differential diagnosis.
Dr. McConna-chie testified during his November 26, 1990 deposition that he is not a medical doctor (Tr. 26). He cannot make medical diagnoses. (Tr. 81.) Only medical doctors can make such diagnoses. (Tr. 181.)
In response to a question asking him whether he was able to give any opinions about whether the Condes have a clinical disease entity, Dr. McConnachie testified: “That’s not my job. I am not allowed to do that.” (Tr. 162.)
Dr. McConnachie testified that his professional judgment leads him not to “testify about a single individual. I will study them, but I won’t testify about them....” (Tr. 413.) He further testified, “I choose not to provide individual opinions. I choose to provide group opinions, because that is how I do the scientific statistical analysis of this work.” (Tr. 414.)
However, Dr. McConnachie later testified that he believed Ryan Conde “had a selective IgM deficiency.” Dr. McConnachie based this opinion on “[a]n IgM of 440.” (Tr. 456.) Dr. McConnachie said that Ryan had “a hypo IgM.” He did not know whether there was a specific disease associated with hypo IgM. (Tr. 462.)
Dr. McConnachie expressed the opinion that the Condes have “an autoimmune disease” which “is a form of allergic disease” demonstrated by “sufficient antibody present.” (Tr. 470-471.) Since he is not a rheumatologist, Dr. McConnachie cannot testify about whether the Condes have any rheumatic disease. (Tr. 471.) Similarly, he is not an endocrinologist; consequently, he cannot testify whether they have any endocrine disease. (Tr. 472.)
Dr. McConnachie stated that the medical records indicate Rhonda Conde has aplastic anemia. However, he is not a hematologist and cannot testify about whether the Condes have any hematologic disease. (Tr. 473.) For the same reason, “I cannot testify to anything other than I have detected autoantibodies in the Conde family.” (Tr. 473.)
Plaintiffs submitted as Attachment 2 to their July 10, 1992 Statement Regarding the Admissibility of Expert Opinion Testimony the unsworn and undated “affidavit” of Dr. McConnachie. It states that he is Director of the Immunotransplant Laboratory at Memorial Medical Center, Southern Illinois University’s School of Medicine of Carbondale and Springfield, Illinois and Associate Professor in the Department of Medical Microbiology and Immunology of that Medical School. McConnachie “affidavit” ¶ 1. He performs clinical services involving tissue typing and cross-matching for renal, bone marrow, or pancreas transplants, monitoring the immune status of post-transplant patients, assessing the immune status of patients, and similar duties.
Id.
112. Since 1986 part of his laboratory’s research has been “devoted to studies of the alterations and abnormalities in immune systems of individuals who have been exposed to various chemicals, including technical chlordane.”
Id.
¶¶ 3. His work on the immune system has been peer-reviewed and he has presented papers at scientific meetings.
Id.
¶ 4.
In his November 25, 1991 deposition, Dr. Arthur C. Zahalsky testified that he is not a medical doctor. (Tr. 268.) He cannot provide medical treatment, “but I can certainly correlate the consequences with— that is, the symptoms, if you will, or the consequences with the etiology of those symptoms.” (Tr. 59.) He said that physicians rely on his “statements.” (Tr. 60.)' He has “immunological training in doing it but not medical training.” (Tr. 62.) When a doctor comes to him he can rule out a bacterial cause, a viral cause, and so on.
Id.
Nonetheless, he is not a treating physician; and the treating physician must rule out other medical causes. (Tr. 336.)
Plaintiffs have submitted Dr. Zahalsky’s July 7, 1992 affidavit which is attached as Exhibit 1 to plaintiffs’ July 10, 1992 Statement Regarding the Admissibility of Expert Opinion Testimony. Dr. Zahalsky is a Professor of Immunology in the Depart
*989
ment of Biological Sciences at Southern Illinois University at Edwardsville, Illinois. He has a doctorate in microbiology. Dr. Zahalsky has testified on the effects of technical chlordane on the human immune system in at least seven cases between 1986 and 1989. Zahalsky’s July 7, 199? affidavit, 111. He has co-authored a peer-reviewed paper on technical chlordane’s effect on the human immune system and presented papers on chlordane at scientific meetings.
Id.
114.
Although the Court agrees that Drs. McConnachie and Zahalsky cannot make a clinical diagnosis of medical causation, the Court nonetheless concludes that they have expertise in toxicology and immune system diseases which, within the meaning of Rule 702, Fed.R.Evid., may be helpful to the trier of fact in resolving medical causation issues. Consequently, their test results and their interpretations of those results and the other tests and medical evidence of record are admissible. However, the Court reserves ruling on whether the evidence offered by Drs. McConnachie and Zahalsky is sufficient to create a jury question on the issue of medical causation.
Are the immune defects Drs. McConnachie and Zahalsky identify compensable injuries?
There is substantial reason to doubt that the immune system “abnormalities” identified by Drs. McConnachie and Zahalsky are compensable injuries. Nonetheless, the Court views that question as an evidentiary one for the trier of fact. (The Court’s view of the probative value of the testimony is a factor in determining its “helpfulness” under Rule 702.)
Motion by Velsicol to Strike Improper Rule 56 Material
Velsicol moves for an order striking from the record four items relied upon by plaintiffs in their opposition to Velsicol’s motion for summary judgment on product defect claims, motion
in limine
to exclude the testimony of Dr. Conde and Drs. MeConna-chie and Zahalsky, and its motion for summary judgment on medical causation issues. The allegedly offending documents are: an article entitled “Corporate Crime: Why We Cannot Trust Industry-Derived Safety Studies” by Dr. Samuel Epstein (“Epstein Article); the letter to the editor by Dr. Peter F. Infante (“Infante Letter”); the December 22, 1980 Affidavit of Raymond D. Harbison filed in
United States v. Price,
Civ. Action No. 80-4104 (“Harbison Affidavit”); and the April 22, 1990 letter from Joe G. Hollingsworth (“Hollingsworth Letter”).
1. The Epstein Article
The Epstein Article, entitled “Corporate Crime: Why We Cannot Trust Industry-Derived Safety Studies,” appears at 20
International Journal of Health Services
443 (1990). The article abstract provides:
The control of pesticides, as of all synthetic chemicals, in most industrialized countries relies heavily or even entirely on safety data supplied by the manufacturers. Such a regulatory system can only be effective if the companies conducting and reporting the studies honestly disclose any adverse findings. The record shows, however, that all too often company executives and their scientists knowingly suppress or manipulate information that could affect the licensing and sale of their products. A case' in point is the gross manipulation of health and related data on the pesticides heptachlor and chlordane by the U.S. chemical company, Velsicol.
The article argues that Velsicol has,
inter alia,
failed to publish or misrepresented test data and made false and misleading statements concerning the safety of heptachlor and chlordane. Epstein also asserts Velsicol failed to conduct epidemiological studies concerning residential chlordane/heptachlor exposure. Based on governmental, scientific, and Velsicol’s reports and studies, Epstein concludes that it is inappropriate for safety decisions to be influenced by those with a direct economic interest in policy decisions.
Velsicol argues that the article, which it describes as “nothing more than a diatribe against Velsicol,” is inadmissible under Rule 56(e).. First, Velsicol argues that the
*990
Epstein article does not show that the author had any personal knowledge of the allegations contained in the article. Second, even if the article did allege personal knowledge, Dr. Epstein has not been named as an expert witness and has not been subjected to cross-examination. Third, the document is not attached to an affidavit based upon personal knowledge of any witness.
Plaintiffs argue that the Epstein Article and the Infante Letter (discussed below) are admissible because Dr. Conde refers to both pieces in his affidavit in opposition to Velsicol’s Motion for Summary Judgment on Medical Causation. Additionally, plaintiffs argue that the article and letter are admissible under the learned treatise exception to the hearsay rule. Fed.R.Evid. 803(18). That rule provides that statements in learned treatises are not hearsay:
To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
Plaintiffs argue that articles from medical journals are considered learned treatises in this circuit, citing
Ward v. United States,
838 F.2d 182 (6th Cir.1988). Further, plaintiffs contend the article and letter are relevant because they directly address issues raised by Velsieol in its motions for summary judgment. For example, the Epstein Article refutes Velsicol’s assertions that Gold Crest C-100 is not defective and that it was adequately tested. Thus, plaintiffs argue that the materials are probative and should be admitted. Fed.R.Evid. 403. Finally, plaintiffs contend that if the Epstein Article and the Infante Letter are deemed inadmissible, then the unauthenticated studies cited by Velsieol should also be stricken.
In reply, Velsieol argues that Rule 56(e) prohibits consideration of unsworn statements merely because it has been mentioned in an affidavit. Velsieol further argues- that plaintiffs have failed to demonstrate that the Epstein Article is admissible under the learned treatise exception to the hearsay rule.
The Court
concludes
that the Epstein Article is not admissible. First, it does not contain facts relevant to the issues raised by any of the pending case-dispositive motions. Second, there are no “facts” contained in the Article upon which the jury could rely in reaching its conclusions about whether the Condes suffered injuries as a result of their exposure to Velsicol’s product. Although the allegations against Vel-sicol in the Epstein Article are serious ones (and the Court assumes them to be true for purposes of deciding this motion
in li-mine),
these allegations are not relevant to resolving any of the material issues in this case. Third, Dr. Epstein was not listed as an expert witness and will not testify at the trial of this case. Fourth, plaintiffs have failed to submit an affidavit from an expert relying upon any specific factual assertions in the Epstein Article such that the Article would be admissible under Rule 803(18), Fed.R.Evid.
15
2. The Infante Letter
The Infante' Letter was published at 29
Journal of Occupational Medicine
908 (1987) in the Letter to the Editor section. In the letter, Dr. Infante (and his associate Caroline Freeman) criticizes a chlordane mortality study performed by Shindell and Associates. Velsieol has submitted several Shindell studies relating to mortality of workers at Velsicol’s Memphis, Tennessee and Marshall, Illinois chlordane/heptachlor manufacturing plants in support of its contention that human epide
*991
miological studies demonstrate that workers exposed to much higher levels of chlordane than the Condes suffered .no long-lasting adverse health effects.
The Infante Letter asserts that a 1982 National Research Council of the National Academy of Sciences report concluded that the Shindell and Associates data “suggested a significant trend in cancer deaths with duration of employment” contrary to Shin-dell and Associates (interpretation of the data). Shindell and Urlich then updated the previous follow-up of their cohort of workers exposed to chlordane and reported “there is generally an inverse relationship between cancer mortality and length of employment for cancers overall.... ” Infante criticizes the published data supporting this conclusion for failing to include the “expected” number of total cancer deaths for each years of employment interval. In-fante argues that you would generally expect a larger number of cancer deaths for 0-4 years of employment because of relatively high turnover. 29 Journal of Occupational Medicine at 908.
Infante then corrected the Shindell and Urlich data by estimating an “expected” total number of cancer deaths from labor statistics and comparing the “expected” total number of cancer deaths to the total number of cancer deaths in the Shindell and Urlich Yelsicol worker population. As adjusted, Dr. Infante stated that “their data show an almost perfect correlation between length of exposure to chlordane and lung cancer and a significant trend between length of employment and total cancer.”
Id.
at 909. Infante criticized Shindell and Urlich for failing to provide “their data not only for the observed, but also for the- expected cancer deaths' by length of employment.” Such data is normally included in epidemiological studies.
Id.
Shindell and Urlich replied to this critique of their epidemiologic study, asserting that Infante should have requested the data from them rather than making assumptions about what the “expected” rate of cancers would be. They state that they did include the “expected” rate in their epidemiological study but did not include it in the article “because the editors of this journal requested curtailment of the amount of material submitted and we elected to present the raw data rather than the calculated values.” To the Court’s non-expert eye, the actual “expected” cancer deaths supplied by Shindell and Urlich' are generally close to those assumed by In-fante in his criticism of the study.
16
Shin-dell and Urlich did not directly respond to Infante’s claim that there is a correlation between length of employment and increased risk of death by cancer.
Velsicol maintains that, like the Epstein Article, the Infante Letter is inadmissable. Velsicol argues first, that to the extent the letter reflects Infante’s opinions as an alleged expert, those opinions are irrelevant because Dr. Infante has not been named as an expert witness in this case and has not been subject to cross-examination.
Defendant Velsicol relies upon the Shin-dell and Urlich update criticized by Dr. Infante. The Court concludes that Dr. In-fante’s critique of that study is admissible under Rule 803(18) as evidence tending to undermine Velsicol’s assertion that the epi
*992
demiological studies demonstrate that ehlordane is not a significant health risk.
3. The Harbison Affidavit
The Harbison Affidavit, filed in
United States v. Price, No.
80-4104 (D.N.J.), details Dr. Harbison’s qualifications as a toxicologist and pharmacologist and discusses the study of toxicological effects on humans and the value of animal studies in predicting the carcinogenic effects of chemicals. The affidavit also discusses the limits of the predictive value of epidemiological studies. Finally, the affidavit discusses in detail the carcinogenic and other health effects of fourteen organic and inorganic compounds. Chlordane is not discussed by Dr. Harbison.
Velsicol argues that the Harbison Affidavit is not based on personal knowledge and Dr. Harbison has not been named as an expert witness. Moreover, Velsicol contends, the Harbison Affidavit is irrelevant to the questions before the Court on medical causation issues.
Plaintiffs assert that the Harbison Affidavit conforms to the requirements on Rule 56(e) and is admissible as an admission by a party opponent. Fed.R.Evid. 801(d)(2).
The Court concludes that the.Harbison Affidavit is not admissible here. . First, Dr. Harbison was not named as an expert by plaintiff. Second, his affidavit is not an admission by a party opponent within the meaning of Rule 801(d)(2). Third, Dr. Har-bison’s affidavit is not relevant to any of the central issues in this case. He does express opinions about the use of animal studies in determining whether a chemical poses a cancer risk in humans, Harbison Affidavit 111114-16, and expresses the opinion that “epidemiological methods are too insensitive to detect anything but extremely large increases in birth defects (terata-gens).”
Id.
II18. If plaintiffs had wanted to offer Dr. Harbison’s testimony on these points, they should have listed him as an expert when disclosing their expert witnesses to Velsicol.
4. The Hollingsworth Letter
The Hollingsworth Letter discusses the Harbison Affidavit concluding that statements made therein are “irreconcilably at odds with testimony ... previously given by Dr. Harbison” in the chlordane/heptachlor litigation. Although the letter is labeled “PRIVILEGED ATTORNEY-CLIENT COMMUNICATION,” Vel-sicol does not assert the attorney-client privilege as a ground for exclusion. Velsi-col urges the Court to find that the letter is irrelevant and immaterial to the issues in this litigation because Dr. Harbison has not been retained as an expert, witness by either party.
Plaintiffs argue that the Hollingsworth Letter is admissible as an admission of a party opponent.
Rule 56(e) states that when affidavits are used tc support or oppose a motion for summary judgment, they “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” A motion to strike may be used to direct the Court’s attention to questions concerning the admissibility of materials offered in opposition to a motion for summary judgment.
Monroe v. Board of Education of Town of Wolcott, Conn.,
65. F.R.D. 641, 645 (D.Conn.1975) (citing
Wimberly v. Clark Controller Co.,
364 F.2d 225, 227 (6th Cir.1966)). Affidavits may properly be considered only if the material in the affidavit would be admissible at trial.
Midland Engineering Co. v. John A. Hall Construction Co.,
398 F.Supp. 981, 989 (N.D.Ind.1975).
The Court concludes that the Hollings-worth Letter is not admissible. It is not relevant to any of the material issues in this case.
Motion by Velsicol
In Limine
to Exclude from Evidence the July 1987 EPA Draft Technical Support Document
Velsicol moves for an order excluding all evidence, testimony or reference to
*993
the July 1987 Technical Support Document (“TSD”) prepared by EPA on the basis that the document is hearsay. Velsicol further argues that the probative value of the TSD is substantially outweighed by considerations of prejudice and confusion. Plaintiffs assert that the document is admissible under Fed.R.Evid. 803(8).
Fed.R.Evid. 803(8), provides:
The following are not excluded by the hearsay rule, even if the declarant is available as a witness:
Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
In order to be admissible under 803(8)(C)
17
a report must first be a set of “factual findings.”
Baker v. Elcona Homes Corp.,
588 F.2d 551 (6th Cir.1978). Velsicol argues that the TSD cannot be considered a “factual finding” because “EPA never undertook an independent factual investigation of the alleged risks of chlordane and heptachlor; instead it simply surveyed and commented on existing data in a way calculated to support most strongly its position in anticipated litigation.” Defendant’s Memorandum in Support at p. 6. This argument is undermined by the fact that the 1983 EPA report upon which defendant places great confidence similarly does not contain original work of the agency, but also merely surveys and comments on existing data.
See
EPA,
Analysis of the Risks and Benefits of Seven Chemicals Used for Subterranean Termite Control,
(1983) (“1983 EPA Report”) (“The summaries of the health effects data are based upon a report ... developed by the National Academy of Sciences, August 1982, as well as other published reviews. Exposure data were taken from the open literature and unpublished data were obtained from the Departments of Air Force, Navy, and Army.”
Id.
at 1-2; “[I]n most cases the original report was not reviewed by the Agency, but rather the information was obtained from a secondary source.”
Id.
at IV-1.) Velsicol has not challenged the studies which underlie the TSD. In fact, as plaintiffs point out, much of the data regarding interior levels of chlordane following treatment was provided by Velsi-col as a result of EPA’s February 1984 “Data Call-In” notice.
The 1987 TSD “presents EPA’s evaluation of the risks and benefits of [chlordane, heptachlor, aldrin and dieldrin] for use on subterranean termites.” TSD at i. Velsi-col argues that the TSD was prepared by EPA as a precursor to potential litigation over the chlordane and heptachlor registrations and that EPA has repudiated the TSD in litigation in the United States District Court for the District of Columbia between the National Coalition Against the Misuse of Pesticides (“NCAMP”) and EPA. The NCAMP litigation was a suit brought by the environmental group challenging provisions of the August 11, 1987 Memorandum of Understanding and voluntary product withdrawal entered into between Velsicol and EPA. The Court has examined the pleadings from the NCAMP litigation submitted by Velsicol and finds that the language quoted by Velsicol in its brief does not appear in those documents.
See
Defendant’s Memorandum is Support at p. 3 (citing Defendant’s Exhibit B at p. 6); Defendant’s Reply Memorandum at p. 2 (citing same). Rather, those documents support plaintiffs’ position that the TSD represents
*994
EPA’s conclusions regarding the risks and benefits of chlordane termiticide.
John A. Moore, Assistant Administrator for Pesticides and Toxic Substances, EPA, in a pleading entitled “Statement of Reasons” states that the TSD “fairly summarizes the extent of the Agency’s knowledge of the hazards (and benefits) posed by chlordane termiticide use....” Statement of Reasons at p. 12 (Defendant’s Exhibit C).
See also
Defendant’s Exhibit E (“Defendant’s (EPA’s) Statement of Uncontro-verted Material Facts” which sets forth the substance of the TSD as “uncontroverted material facts” in the NCAMP litigation.). Further, the affidavit of William Marcus, Senior Science Advisor and Chief Toxicologist, EPA, states that the TSD represents the Agency’s “final conclusions” and is “marked ‘draft’ not because the conclusions are tentative but because Velsicol agreed to take the product off the market.” Marcus Affidavit, Plaintiffs’ Exhibit 2, Memorandum Contra Defendant’s Motion for Summary Judgment on Product Defect. Velsicol has not addressed any argument to the Marcus Affidavit.
The Advisory Committee Notes to Rule 803 states that the rule “assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present.” In light of this presumption of admissibility, the party opposing admission of the report must prove that the report is not trustworthy.
Baker v. Elcona Homes Corp.,
588 F.2d 551, 558 (6th Cir.1978),
cert. denied,
441 U.S. 933 , 99 S.Ct. 2054 , 60 L.Ed.2d 661 (1979);
Bank of Lexington & Trust Co. v. Vining-Sparks Securities, Inc.,
959 F.2d 606, 615 (6th Cir.1992). Here, the Court concludes that both the 1983 EPA Report and the 1987 TSD are admissible under Rule 803(8)(C).
MEDICAL CAUSATION
Dr. Conde is plaintiffs’ sole medical doctor expert causation witness.
18
He has treated himself and his family as their primary physician from April 1983 to the present. Other physicians have also treated plaintiffs, but they will not testify on medical causation. Drs. McConnachie, Zahal-sky, and Simon, none of whom are medical doctors, offer expert testimony in the areas of immunology and toxicology.
Velsicol argues that (1) there are no valid human epidemiological studies supporting plaintiffs’ claims; (2) even if there is a fact conflict as to valid studies, plaintiffs’ experts failed to conduct critical differential diagnoses to rule out other causes of plaintiffs’ symptoms; and (3) plaintiffs’ theory of causation is not based on a generally accepted explanatory theory and it does not accord with human epidemiological studies.
Under Ohio law, plaintiffs must establish a causal relationship between the tort alleged and the claimed physical injury by the opinion of medical witnesses competent to express such opinions.
Darnell v. Eastman,
23 Ohio St.2d 13, 16 , 261 N.E.2d 114 (1970) (“[T]he issue of causal connection between an injury and a specific subsequent physical disability involves a scientific inquiry and must be established by the opinion of medical witnesses competent to express such opinion”);
Stacey v. Carnegie-Illinois Steel Corp.,
156 Ohio St. 205 , 101 N.E.2d 897 (1951) (syllabus 1);
Yung v. Raymark Industries, Inc.,
789 F.2d 397, 399 (6th Cir.1986). A series of Sixth Circuit cases indicate that where the expert evidence upon .which a plaintiff relies is based on questioned data or a novel scientific explanatory theory, the Court must carefully scrutinize the evidence on causation to determine whether it is sufficient to survive summary judgment and go to the jury. The most recent, and clearest, statement of the Sixth Circuit’s position is
Tur
*995
pin v. Merrell Dow Pharmaceuticals, Inc.,
959 F.2d 1349 (6th Cir.1992). Since how the trial court goes about the evaluation of the evidence on causation may well have a determinative impact on the outcome of this motion, the Court will set out the
Turpin
facts and holding in some detail.
First, judges should respect scientific opinion and recognize their own limited scientific knowledge.
Turpin,
959 F.2d at 1350 . In toxic tort cases, the Court must be aware of “the difficulty of scientists and hence of judges, lawyers, and jurors in knowing what reasonable inferences of causation to draw from animal experiments and epidemiological studies” and be mindful of “the uncertainty of judges about how far they should enter the scientific thicket of conflicting inferences in order to determine whether the basis of a scientific opinion concerning causation is sufficiently plausible to allow a jury to ground a verdict on it.” 959 F.2d at 1352.
Turpin
is a Bendectin case. Betty Turpin took Bendectin for morning sickness. Her child, Brandy Turpin, was born with severely deformed hands and feet. The Turpins relied “primarily on animal experiments from which an inference is drawn that since chemical compounds in Bendec-tin, if administered at certain levels, caused birth defects in animals, they may cause similar defects in humans. The plaintiffs draw a further inference that Bendectin caused the birth defects in this particular case.” 959 F.2d at 1350. The treating physicians were unable to diagnose the cause of the birth defects. Merrell Dow relied on epidemiological studies “to show that the incidence of certain birth defects is no higher with women who used Bendectin than with those who did not_” 959 F.2d at 1350-1351.
The Sixth Circuit adopted the “hard look” doctrine, which requires the trial court to make a close judicial analysis of expert causation testimony on summary judgment. 959 F.2d at 1352. Applied to our case, “a hard look” analysis requires the Court to determine “what exactly are the general scientific experiments and studies capable of showing” whether chlordane caused the Condes’ personal injuries.
Id.
The Sixth Circuit found
close judicial analysis of such technical and specialized matter is necessary not only because of the likelihood of juror misunderstanding, but also because expert witnesses are not necessarily always unbiased scientists. They are paid by one side for their testimony.... [T]he potential for exaggeration and fraud on the court is present and may be impossible to discover without close inspection and careful consideration of the record.
959 F.2d at 1352-1353.
A plaintiff's expert's personal belief or opinion is not sufficient evidence that a chemical caused a personal injury to avoid summary judgment. 959 F.2d at 1360. The expert's testimony must be based "on the collective view of his scientific discipline." Id. Alternatively, the expert must explain the grounds for his differences with experts in his or related disciplines. Id.
The issues in
Turpin
were how to evaluate epidemiological and animal studies and whether animal studies were sufficient evidence that a chemical caused personal injuries where the epidemiological studies were generally negative. The Court was faced with many conflicting opinions:
The plaintiffs offered expert opinions from ten witnesses in eight scientific fields to assess whether Bendectin is “teratogenic,” i.e., capable of causing birth defects. These opinions were based on in vitro and in vivo animal studies, and reassessment of the defendant’s epidemiological studies derived from study of humans. In support of its motion for summary judgment, the defendant relies primarily on the 35 human epidemiological studies supporting a finding that the use of Bendectin does not cause birth defects. Some of these studies were conducted by scientists under contract with the defendant. Others were independent.
959 F.2d at 1353.
The
Turpin
Court concluded that the epidemiological studies did not conclusively
*996
demonstrate that Bendectin could not have caused the birth defects. The causes of congenital abnormalities are poorly understood, and the epidemiological studies demonstrate “that it is possible that Bendectin causes birth defects even though these studies do not detect a significant association.” 959 F.2d at 1358.
The animal studies demonstrated that when doxylamine succinate, an ingredient of Bendectin, is injected into animal cells, it interferes with cartilage cell formation. However, plaintiffs’ expert “can only testify that these chemical compounds connected with Bendectin are ‘capable of causing’ limb defects in humans, not that they do cause such defects.” 959 F.2d at 1358 (footnote omitted). Although plaintiffs offered evidence that subjecting animal cells to high dosages of a chemical and extrapolating the results to humans was an accepted practice, an authoritative treatise stated that relying upon high dosages “ ‘would eliminate most drugs and many useful chemicals upon which modern society depends heavily.’” 959 F.2d at 1359. While recognizing that animal studies “often comprise the backbone of evidence indicating biological hazards [and that] their legal value has been recognized by federal courts ...,” 959 F.2d at 1560, the
Turpin
Court concluded that the animal experiments regarding Bendectin would not “permit a reasonable jury to find that it is more probable than not that the substance causes a similar harm to humans.” 959 F.2d at 1559. The Court concluded that plaintiffs’ experts “stopped short of testifying that Ben-dectin more probably than not caused the birth defects ..., because they have no factual or theoretical basis for a stronger hypothesis.” 959 F.2d at 1359-1360. The Court concluded that plaintiffs’ experts “testified to a possibility rather than a probability.” 959 F.2d at 1360.
One expert expressed his opinion that the animal studies and medical records pertaining to Brandy Turpin demonstrated that Bendectin caused her limb defects. In holding that his testimony was unreliable, the Sixth Circuit stated that an expert’s testimony must be based “on the collective view of his scientific discipline,” 959 F.2d at 1360, or he must explain the grounds for his differences with other experts in his and related fields.
Id.
In summarizing its decision upholding the trial court’s grant of defendant’s motion for summary judgment, the Court of Appeals stated:
Here, the record’s explanation of the animal studies is simply inadequate. Although the animal studies themselves may have been scientifically performed, the exact nature of these tests is explained only in general terms. The record fails to make clear why the varying doses of Bendectin or doxylamine succi-nate given to rats, rabbits and in vitro animal cells would permit a jury to conclude that Bendectin more probably-than not causes limb defects in children born to mothers who ingested the drug at prescribed doses during pregnancy. The analytical gap between the evidence presented and the inferences to be drawn on the ultimate issues of human birth defects is too wide. Under such circumstances, a jury should not be asked to speculate on the issue of causation.
959 F.2d at 1360-1361.
When making a determination under Rule 703 about the admissibility of expert testimony, the Court has an obligation to fully develop the record.
In re Paoli Railroad Yard PCB Litigation,
916 F.2d 829, 853-854 (3d Cir.1990). The decision must be made on a “detailed factual record.” 916 F.2d at 854 .
In re Agent Orange Product Liability Litigation,
611 F.Supp. 1223, 1239 (E.D.N.Y.1985). Plaintiffs must be given a sufficient opportunity to fully develop and present their case. Here the Court’s September 17, 1992 Order, citing
Turpin,
gave the parties another opportunity, after all the briefs on medical causation had been filed, to supplement the record so that all evidence relevant to adjudicating Velsicol’s motion for summary judgment would be before the Court.
This is a motion for summary judgment. The Court cannot resolve issues of controverted fact on summary judgment. When resolving questions about the
*997
admissibility of expert testimony, a trial court must avoid merely choosing between expert opinions.
In re Paoli,
916 F.2d at 853 . Doubts about whether the proffered expert evidence would be helpful within the meaning of Rule 703 should be resolved in favor of admissibility.
19
In re Agent Orange Product Liability Litigation,
611 F.Supp. at 1267, 1279 (E.D.N.Y.1985).
Facts related to the determination of whether plaintiffs have made out a
prima facie
case that their exposure to chlordane caused their personal injuries
Plaintiffs maintain in their August 3, 1992 memorandum contra defendant Velsi-col’s motion for summary judgment on medical causation that studies on mice, rats, and dogs demonstrate that acute intoxication by chlordane causes symptoms related to the central nervous system and results in liver damage. Plaintiffs cite no studies or testimony supporting this factual assertion in any of their briefs. Dr. Zahalsky states in his September 22, 1992 affidavit, 11 5, that, based on animal studies, the USEPA listed chlordane as a “probable human carcinogen.”
Plaintiffs further argue in their August 3 memorandum contra that they have identified as expert witnesses Drs. McConna-chie and Zahalsky “who have conducted extensive studies into the effects of exposure to chlordane to the human body” and they “have concluded that” the Condes’ exposure to chlordane resulted in damage to their immune systems. Plaintiffs also assert that Dr. Robert K. Simon, an analytical chemist and toxicologist, “has extensively studied the toxilogical implications of human exposure to chlordane and its meta-bolities.” Dr. Simon “concludes that exposure to chlordane has caused elevated liver enzymes” in the Conde family. Velsicol responds that plaintiffs have submitted no affidavit(s) to demonstrate that the opinions of Drs. MeConnachie and Zahalsky are based on generally accepted theories.
20
Further, MeConnachie and Zahalsky have acknowledged that Stites and Terry’s
Basic and Clinical Immunology
(7th ed 1991) is authoritative. It does not support their position, and MeConnachie and Zahalsky cite no authoritative text to support their opinions.
Dr. McConnachie’s medical causation testimony.
Plaintiffs attached to their August 3, 1992 memorandum contra Velsicol’s motion
in limine
to exclude the opinion testimony of MeConnachie and Zahalsky pages 164-178 of Dr. McConnachie’s November 26, 1991 deposition and pages 222-223 and 476-477 of his April 25, 1992 deposition. Dr. MeConnachie testified that he believes the Condes’ immune systems are dysfunctional. (Tr. 164.) Dr. MeConnachie believes that 1991 immune system panel test results indicate significant elevations for CD25 and CD26.
Id.
and MeConnachie Deposition Exhibit 1. He testified that CD25 is the interleukin-2 receptor on T cells. When the interleukin-2 attaches to the receptor, the T cell activates. This is “part of the proliferative generative response in T cells when an immune system response gets going.” The values (apparently CD25) for the Conde family as a whole are “pretty much all elevated. And the p value between them as a group and the control was less than 1 in 10,000.” (Tr. 165.) The clinical significance of the 1991 test results is that the Condes’ “immune systems are highly activated, turned on. And I think they’re turned on to themselves. Autoreactive.”
Id.
Dr. MeConnachie explained how the immune system activation he found reflected in the elevated CD25 test results occurred:
.... My premise for this hypothetical discussion is that because of its fat solubility, 1,500 to 1 fat partition coefficient, chlordane is absorbed through the skin, leaves the blood quite rapidly, and ends
*998
up in the bone marrow fat — highest density fat deposition in the body....
,. All the white cells of the immune system originate in the bone marrow, and they pass through the bone marrow on a daily basis when they’re mature out of circulation.... The precursor cells for B cells and the precursor cells for the NK cells originate in the bone marrow.
Some start in the liver and get to the bone marrow, but they all get- into the bone marrow before they' get out of the thymus as a T cell, or to the lymph nodes, or the gut-associated lymph nodes, to the groin lymph nodes', to the inguinal lymph nodes-, to the particular epithelial system.
... And on a daily basis circulating cells are going through the bone marrow, some of them, not all of them....
So now we have fat cells with Chlordane and its metabolites and mixtures of compounds of Technical Chlordane sitting in the fat cells of the bone marrow, probably quite innocuously.
So I think, most of the time, they can sit in fat and nothing will happen. Fat doesn’t get metabolized very much, very easily, but occasionally it. does.
And particularly in children, children that are growing.... But they lose weight for one reason or another. I think that when bone marrow fat gets metabolized there are bursts of Chlordane released ... that will affect the cells traveling through the bone marrow.
And, moreover, those bursts of HAH [Chlordane] will get to the liver because they’ll be transported there in the blood. And that’s how I can see hepatotoxicity occurring a long time after exposure has finished. Certainly, I can see how bursts of HAH released from bone marrow metabolic activity will cause disarray among the circulating white cells, dysregulation of their functions.
Because these compounds are highly toxic, and here they are sequestered in the bone marrow and released from time to time. Because they are not metabolized at a recognized rate. They don’t biodegrade. They’re there. And the only way they get out is when they're excreted when fat cells are metabolized.
(Tr. 166-170.)
' Dr. McConnachie testified that this scenario assumes “a person who’s been exposed to some significant amount of Chlordane.” (Tr. 169.) This hypothesis also explains the differences in the CD25 and CD26 values in the 1987 and 1991 tests. (Tr. 170.)
As indicated above, CD25 is the interleukin-2 receptor on T cells. Dr. McConna-chie gave the following explanation of the increased appearance of the interleukin-2 receptors:
... I think Chlordane can act as an adjuvant ... and probably can attach to some of the biochemical structures on cell membranes, cell surfaces, and cause the immune system to say, “Ah-ah, there’s something different about this cell surface antigen. I now recognize my own self [as] something immune, different, and I’m going to start attacking it.”
“And when I start attacking it — ” says the immune system — “what do I do first? I release interleukin-2. And when I release interleukin-2 my T cells need to express more sup — ” [sic]. They are set up so that, as soon as they see interleukin-2, they are bound to produce more receptors for interleukin-2.
So that’s why I think Chlordane causes more CD25 expression.
(Tr. 170-172.)
Dr. McConnachie was then cross-examined as to why an elevated CD25 was not found in a study (Deposition Exhibit 1) he conducted. (Tr. 172-173.) Dr. McConna-chie responded that CD25 was only tested in 21 of the 27 subjects of .the study, and that most of the people in the study were tested a short period of time after their exposure to chlordane. “I think this is a later effect and shows up four years later.” (Tr. 173.)
■ Dr. McConnachie was then asked why the Condes’ CD25 was not elevated four years after their initial exposure yet was
*999
seven and a half years after the initial exposure. He responded, “I can’t explain that.” (Tr. 173-174.)
Dr. McConnachie testified that in the 1991 test the entire family’s CD26 was significantly increased. CD26 “measures a molecule on the surface of T. cells. Not specifically CD4 or CD8, just CD3 or CD2 T cells. That is a activation molecule.” (Tr. 174.) An activation molecule is an “activation marker that seems to be involved with autoimmunity.” (Tr. 174-175.) Dr. McConnachie did not know the mechanistic association between the CD26 marker and autoimmunity. He thought it “might be marking a suppressor cell that won’t suppress or a helper cell that’s helping wrongly. I think it is a marker of dysfunction.” (Tr. 176.) Dr. McConnachie testified that the CD26 values for the Condes changed between the 1987 test and the 1991 test because “[t]he form of dysregulation of their immune systems has changed from 1987 to 1991.” (Tr. 176.) He could not explain why that change had occurred. (Tr. 177.)
During his April 25, 1992 deposition, Dr. McConnachie testified that three members of the Conde family show the ASM antibodies which are “[inappropriate antibodies indicating [that the] immune system [is] not being properly controlled.” (Tr. 222.) Further, “the immune system is causing damage when it’s producing inappropriate antibodies.... They’re going somewhere in the body. I’m not sure what the targets really are.” (Tr. 222-223.) No antibodies exist without a target. Autoantibodies are bad. They shouldn’t be there. (Tr. 223.)
Finally, Dr. McConnachie expressed the opinion that the Condes’ complaints of frequent respiratory infections “are due to a dysregulated immune system.” (Tr. 477.)
Dr. Arthur C. Zahalsky’s testimony concerning medical causation.
Plaintiffs attached as Exhibit 1 to their August 3, 1992 memorandum contra Velsicol's motion
in limine
to exclude the opinion testimony of McConnachie and Zahalsky parts of Dr. Zahalsky’s April 24, 1992 deposition testimony.
Dr. Zahalsky testified that there are “members [of the Conde family] for whom there was evidence of a cryptogenic CAH [cryptogenic active hepatitis] and that that evidence was the evidence presented in two fashions; one, the autoimmunity antibody, and two, the enzyme levels.” (Tr. 432.)
Dr. Zahalsky testified that Autumn Conde has chronic active hepatitis and that James P. Conde also “shows evidence of cryptogenic active hepatitis.” (Tr. 435-436.) However, Dr. Zahalsky stated that his testimony was based on a “balance of probability whether the values- are consistent with a condition that I’m describing as [cryptogenic active hepatitis]. That’s the best I .can do. ...” (Tr. 436.) He would not testify to a reasonable degree of scientific certainty that they have cryptogenic active hepatitis. (Tr. 436-437.)
Dr. Zahalsky was asked whether exposure at a level of no higher than one micro-gram per cubic meter was “high enough to have caused any of the immune system diseases or dysregulations. that you are prepared to testify about?” Plaintiffs’ counsel objected that that was not a fair question because it assumed that the only exposure was through the air, while ehlor-dane can be ingested and absorbed through the skin just as easily as it can be inhaled from the air. (Tr. 503-504.) Defendant’s counsel then rephrased the question:
Assuming ... that in no case was any air concentration measured higher than one microgram per cubic meter; assuming as well that [ingestion and skin absorption] exposure ... did occur and that the concentrations on these surfaces were commensurate with values that I have mentioned to you in the air, do you have an opinion that that exposure did cause any of the Condes’ immune dysregulation?
(Tr. 505.) Plaintiffs’ counsel again objected, stating that the term “commensurate exposure” was not defined. Dr. Zahalsky then answered that there has
[n]ever been a study that correlates any value in the air, wipe samples, food items with what occurs in the bloodstream, ... [M]y opinion does not rely upon what it is that’s in the house; it’s what it is that is
*1000
contained within the body. So since there has never been a study ... that would test the hypothetical that you’ve posed, there is no possible answer to your question. Ergo, I rely on what it is that is found in the human being rather than what is found in the house.
(Tr. 505-507.) For those values, Dr. Zahal-sky relied upon the Washington Analytical Laboratory Results “showing ... some levels of Transnonachlor in their blood.” (Tr. 507-508.) He further testified that his opinion would change if no transnonachlor, heptachlor epoxide or oxychlordan were to be found in their blood. (Tr. 509-510.)
21
Finally, Dr. Zahalsky agreed that “some antibodies can be made by healthy people without causing disease or signifying a total breakdown of immunoregulation.” (Tr. 583.) Plaintiffs do have some form of immune system dysregulation caused by exposure to chlordane.
Id.
Dr. Zahalsky’s September 22, 1992 affidavit.
In response to the Court’s September 17, 1992 Order that plaintiffs’ experts make a “systematic statement of their opinions and the grounds upon which they are asserted,” Dr. Zahalsky submitted his September 22, 1992 affidavit. September 17, 1992 Order at p. 7. In it, Dr. Zahalsky states that chlordane “is a mixture of similar chemicals and often contains seven different chemical isomers.” These chemical isomers and their metabolites are soluble in human fat. Consequently, chlordane accumulates in areas of the human body where there are fat or adipose tissue cells. He states that the bone marrow “is especially vulnerable [to chlordane] because it contains a high percentage of fat_” Chlordane is taken into the body by absorption, inhalation, and ingestion. Zahalsky's September 22, 1992 affidavit ¶ 1.
Much of the chlordane that enters the body is excreted within a short period of time. The biological half life of chlordane is 18-30 days. But Dr. Zahalsky believes that chronic exposure, “even to decreasing quantities, over time, results in the added burden of the body to continue to process, continue to accumulate, continue to excrete and retain these chemical molecules, which penetrate and partition preferentially into the fats and oils of the body — substances which are part of many organs and tissues.”
Id.
11 2.
Animal studies have caused the USEPA to list chlordane as a probable human carcinogen. “Toxicologists and other scientists have always relied on animal experiments and such data served as criteria to determine whether human exposure to drugs, food additives, or pesticides is to be permitted.” It would be impossible for the government to regulate drugs or chemicals without using animal test data.
Id.
¶ 5.
Dr. Zahalsky states his opinion that the Condes suffer from a dysregulation of the immune system.
Id.
117. He states that the term “immune disorder” defines “any
*1001
symptoms, manifestations, or organ damage to the primary immune system (thymus gland; bone marrow) or secondary immune ■ organs (lymph nodes; spleen; lymph nodes patches of the intestines; immune cells and antibodies).”
Id.
11 6. He states that standard laboratory procedures were used “to test the fluid and cellular components of the circulating blood of the Conde family members.'...” Dr. Zahalsky further asserts:
The toxicity of damaging effects of such chemical agents as chlordane are revealed by their action within the primary and secondary immune tissues of the body with the result that alterations in the numbers of immune cells and their function may be detected and quantified by taking samples of blood. Alterations in cell numbers of the various immune cell types and subtypes (e.g. T cells, B cells) defines a dysregulation of the immune system that is described as being abnormal.
Id.
It 7. Dr. Zahalsky concludes that the immune abnormalities:
found in members of the Conde family include evidence of damage to (i) the maturation of immune cells that act in the immuno-surveillance functions of our body, (i.e. cells known as natural killer cells identify and eliminate transformed (cancer) cells), (ii) alteration in the ratio of cells that function to control our recognition of self, (iii) abnormal activation (hyper-activation) of immune compartment cells known as T cells, and (iv) deficiency in the production of bone marrow defined or B cells. These and other findings of derangements in the immune cells numbers and functions describe a cluster of abnormalities that reveal both dysregulation and dysfunction in the immune system of the Conde family members.
Id.
¶ 8. Dr. Zahalsky also states that Rhonda Conde, Autumn Conde, and Jamies P. Conde “show evidence of autoimmunity.”
Id.
¶ 9.
Dr. Zahalsky states that there is evidence in published scientific and medical literature of the ability of chlordane and its metabolites to cause injury to the human immune system.
Id.
¶ 10. Additionally, Dr. Zahalsky is conducting a study with Dr. McConnachie of 19 persons about damage to their immune systems caused, by exposure to chlordane.
Id.
¶¶ 11-12. He states that “[t]he immune findings on the Conde family correspond to the cluster of immune abnormalities noted in other families who have been exposed.”
Id.
¶ 13. Dr. Zahalsky concludes his affidavit:
Based on (1) the data that comes from members of the Conde family, (2) their known exposure as a consequence of misapplication, and (3) our scientific analyses that include other persons that have been exposed to these chemicals (chlordane), my opinion is that the Conde family members have sustained injury to their immune systems that was caused by their chlordane exposure. I believe that the laboratory evidence supports this opinion and that the criteria which exclude other causes have been properly applied, thus leaving chlordane and its various isomers as the most probable damaging chemicals.
Accordingly, my opinion is that chlordane is the proximate cause of the immune injuries sustained by the members of the Conde family based upon a reasonable degree of scientific certainty.
Id.
¶ 14.
Dr. Robert K. Simon’s medical causation testimony.
In his November 13, 1991 deposition, Dr. Simon testified that he had no medical school training (Tr. 10, 13). He is not qualified to make a differential medical diagnosis. (Tr. 11.) However, he can “comment on toxicology implications.” (Tr. 10-11.) Further, a medical doctor attempting to make a differential diagnosis would consult with a toxicologist. (Tr. 11.) But it is up to the medical doctor to make a diagnosis. (Tr. 12.) The toxicologist “can look at medical data and come to some conclusion as a toxicologist.” (Tr. 12.) The practical effect of a toxicologist being unable to make a differential medical diagnosis is that although Dr. Simon can testify that chlordane causes headaches, he cannot testify as an expert about other causes of headaches. (Tr. 12-13.)
*1002
Dr. Simon testified that the Condes were exposed at their residence to a “sufficient dose [of chlordane] to exceed the acceptable daily dose intake of those materials just from the air.” (Tr. 19.) From his review of the evidence, there were “certainly indications of either spillage of the pesticide or emission of the pesticide from the treatment areas into the basement floor and within various areas of the basement.”
Id.
Further, there were “significant contamination air” in the basement “as well as the first and second floor levels.... [T]he upper levels were maybe 50% of the air levels of the basement level.”
Id.
Dr. Simon indicated that “one of the SAE reports showed a significant number or virtually all of the items they tested, personal furnishings, toys, clothings, ... were contaminated with chlordane and heptachlor.”
Id.
As to chlordane’s effects on the liver, Dr. Simon testified that “the clinical biochemistry records ... are consistent with a response to a compound that causes liver toxicity.” (Tr. 108.) The records he has reviewed indicates that the Condes were exposed to chlordane “and all the reported symptomology is consistent with chlordane, heptachlor exposure. And I think the three things tie together that, yes, these folks were exposed to chlordane, heptachlor and have suffered health deficits because of that exposure.”
Id.
Ryan Conde’s health deficits include an elevated liver alkaline phosphatase on April 19, 1985 of 236. (Tr. 108.) Dr. Simon testified that it is his opinion that chlordane “could affect alkaline phosphatase.” (Tr. 109.) Dr. Simon could not recall during his deposition any articles which showed a correlation between exposures to 1-4 micrograms of chlordane per cubic meter with the elevation of specific liver enzymes. He thought that he would be able to do so. (Tr. 111.) Dr. Simon conceded that liver enzymes could be elevated in response to illness. (Tr. 118.) For example, some viruses can elevate liver enzymes.
Id.
Hepatitis and some over-the-counter medications can also elevate liver enzymes. (Tr. 119.)
Dr. Simon testified during his November 13, 1991 deposition that the “reported symptoms ... are very consistent with the reported toxic response to chlordane, heptachlor.” Ryan’s elevated liver enzymes “again are very consistent with that exposure.” (Tr. 107.) Dr. Simon testified, “I don’t see anything else in the history of this family ... that would be a motivating factor for their health problems other than chlordane, heptachlor.”
Id.
Consequently, he “would certainly testify that all the medical files that I have seen are consistent with exposure to compounds like chlordane, heptachlor, and we have documented evidence that that exposure in my opinion did occur” to a reasonable degree of scientific certainty. (Tr. 107-108.) Defendant Velsicol maintains that plaintiffs offer no evidence that “elevated liver enzymes” constituted a disease or illness..
Dr. Simon’s December 5, 1991 environmental assessment of the Condes’ home.
Some portion of Dr. Robert K. Simon’s January 6, 1992 report on chlordane, heptachlor sampling done at the Condes’ home December 5, 1991 have been submitted to the Court. Plaintiffs’ Memorandum Contra Property Damage, Exhibit 4.
22
The report indicates that there are standing pools of water in the basement and that water is seeping through the basement concrete block. Presumably the water contains chlordane, heptachlor, since Velsicol’s Gold Crest C-100 solution was poured into the concrete block through holes the contractor Mitchell drilled into the block. Air levels of chlordane were apparently below one microgram per cubic meter. Dr. Simon argues in the report:
Quantitative comparison of the Conde air levels to existing guidelines such as NAS (5 ug/m3 chlordane, 2 ug/m3 heptachlor) and ATSDR (0.5 ug/m3 chlordane) are not relevant for this survey in my opinion. Since the house has not been occupied for several years, most of the TC [technical chlordane] products have settled onto surfaces and into absorptive
*1003
materials. The high levels of surface and bulk material TC products indicates that circulating air levels have decreased by absorption of the TC chemicals onto surfaces. It would be anticipated that air levels would increase by an order of magnitude, or more, if occupancy occurred, without removal of all sources of chlordane.
Despite the unoccupied condition of the Conde house, the existence of heptachlor levels, on 120591, and the 0.1-0.2 ug/m3 range, indicates that the maximum acceptable dose level for heptachlor would be exceeded for children and adults, based upon 12 hours of residence time per day, using the dose guidelines of the U.S.E.P.A. 1987 Technical Support Document. The existence of 0.2 ug/m3 TPTC on the first floor indicates that a 50 kilogram person would receive 100% of the maximum acceptable dose level for chlordane, based upon 12 hours of residence time per day, using the dose guidelines of the U.S.E.P.A. 1987 Technical Support Document. The addition of the FPTC components indicates that significantly more than 100% of the maximum acceptable dose of chlordane components would be received daily by a 50 kilogram person.
Thus, air levels found on 120591 indicate that airborne heptachlor and chlordane persist in the Conde house, and would increase significant if occupied under current conditions.
Report at pp. 5-6. Dr. Simon also found chlordane, heptachlor present in wipe samples taken throughout the house. Report pp. 6-7.
Dr. Simon concluded that the Condes’ former home “is highly contaminated with heptachlor and technical chlordane components.” Report at p. 8. He concluded that the residence “is not fit for human habitation.” Report at p. 9. Further, it “cannot be decontaminated, in my opinion, without the potential for significant structural demolition of the basement and crawlspace areas, removal of the HVAC system, and other structural components. It is likely that any demolition-decontamination attempt would be more costly than removal of the entire structure.”
Id.
James P. Conde’s medical causation testimony.
James P. Conde is a doctor of osteopathic medicine. His specialty is family practice. He has no training in toxicology, immunology, epidemiological studies, or the other areas of specialized technical expertise involved in this case. Dr. Conde’s July 31, 1992 affidavit, ¶ 1 (Exhibit 1 to plaintiffs’ August 3, 1992 memorandum contra Velsicol’s motion for summary judgment on issues of medical causation.)
In his November 1, 1991 deposition, Dr. ■ Conde was asked whether he could identify any particular study about chlordane he relied on when he arrived at his opinions concerning medical causation. Dr. Conde responded, “I really don’t know at this point. If it’s necessary that I provide documentation, then I will. If not, then I’ll testify from my own medical perspective on it.” (Tr. 28-29.) Defendant’s counsel then asked:
Q. ... [W]ith respect to the problems that you’ve identified so far [during the deposition] you believe were caused by exposure to chlordane. As we sit here now, can you cite for me any specific study in support of these opinions?
A. Up to this point, I think there is a study by Zahalsky regarding the immune system; however, I don’t know the issue, magazine, chapter, page or anything else about that right at this timé.
I could try to find the article that I read that there was increased instance of skin carcinomas.
23
(Tr. 29.)
Later in his deposition, Dr. Conde testified that he felt that one of the family member’s urinary incontinence problem “was based on neurogenic problems with
*1004
the bladder, which is based on the neuro-toxicity of chlordane.” He said that he did not relate the bladder incontinence to a particular level of chlordane exposure. (Tr. 137.) He was unable to cite any articles showing that chlordane is associated with bladder incontinence. However, he maintained that “[a]ll the studies that state it’s neurotoxic” support his diagnosis. (Tr. 136.) Dr. Conde testified that chlordane accumulates in fat cells, the liver, and the brain.
Dr. Conde attributed severe plantars warts on Ryan Conde’s heel to a breakdown of his immune system caused by exposure to chlordane. (Tr. 149-151.) He could not cite any specific article supporting this conclusion, although “any treatise on immune systems will imply” immune system breakdowns cause plantars warts. (Tr. 151.)
From his deposition testimony, it was not clear whether Dr. Conde had read any particular epidemiological study.
E.g,.,
(Tr. 31). He did testify that he had read summaries of the epidemiological studies Velsi-col relies on, but not the studies themselves. (Tr. 240.)
Dr. Conde’s July 31, 1992 affidavit.
To demonstrate that their symptoms have been caused by their exposure to chlordane, plaintiffs have submitted the July 31, 1992 affidavit of Dr. James P. Conde, which is attached as Exhibit 1 to plaintiffs’ August 3, 1992 memorandum contra Velsi-col’s motion for summary judgment on issues of medical causation. Dr. Conde states that “[wjithin days of the treatment of the home with chlordane, and continuing until we abandoned the home in 1986, all of the members of our family experienced various signs and symptoms of illness and disease.” He attaches his summary of these signs and symptoms for the period 1983-1986 as Exhibit A to his affidavit. Dr. Conde’s July 31, 1992 affidavit ¶ 4. For each member of the family, these notes read:
24
Kimberly Brooke Conde
Birthdate 1/20/82
1. Had nausea, vomiting, diarrhea & hyperpyrexia 2-3 days after house treated in April 1983. Was hospitalized and treated with IV fluids for dehydration.
2. Has had URI symptoms & bronchitis several times/yr 1983-84-85-86
3. Very poor appetite and eats small amounts only
1984-85-86.
4. Abdominal pain — periumbilical and epigastric [with] abdominal bloating, gas & tympany 5-7/wk 1985-86 & worse recently.
5. Diarrhea intermittently 1984-86
6. Stools are frequently loose but formed and generally very pale (acholic) in color; occasionally brown, began in early 1986 to present.
7. Has had staph infection of buttocks & leg — once in 1985 & once 1986. Had staph infection toenail 1986.
8. Has urinary incontinence — dribbles enough to make panties damp & has to change them several times/day. Has not had frank enuresis since shortly after 1 yr old but occ dribbles panties at night also. This has occurred since approximately March, 1986.
9. Intermittent lethargy
10. Abnormal calcification of teeth— under care of Dr. Harold Brown DDS— etiology? No cavities 1984 (?)
11. Nausea & vomiting with fever lasting 1-2 days & occuring [sic] in proximity to similar episodes in other family members approximately one/yr.
12. Rashes — intermittent macular rashes with occasional isolated urticaria especially on neck or abdomen on arms but occasionally on other areas — generally last only briefly & resolve spontaneously; no other symptoms associated except brief pruritus.
13. One episode of sudden flushing and warmth of face — lasted only few hours; no obvious cause. Occured [sic] 1986.
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14. Headache and eyes “hurting” app. 2/wk 1985-86. ?too young to describe when younger.
15. Has occasionally complained of legs & feet “buzzing” — I think she is complaining of parazsthesias [sic]; this lasts briefly; noted app 10-12 times 1985-86. Possibly in hands also.
16. “Hiccoughing” frequently 1985— occasionally 1986.
Autumn Dawn Conde
Birthdate 8/20/78
I. URI symptoms & bronchitis several times/yr since 1983-86.
' 2. Good appetite generally but has complained of abdominal pain — generalized but worse in upper abdomen & peri-umbilical nearly every day & sometimes more than once/day since 1983 — worse gradual
3. Has abdominal bloating, gas & tympany frequently — nearly daily. Epi-gastric pain with eating 1986
4. Has diarrhea sometimes several days in a row and at least several days/ wk. Has varied stool color — pale-grey-brown, green, reddish 1983 to present
5. Complains of headaches 1983-84, were less frequent for app. 1 yr and have become more frequent recently.
6. Had staph infection 304/74 1985-86. Has occured [sic] following poison ivy sometimes but 1-2 times without cause.
7. Has had occasional enuresis at irregular intervals approximately 5-6/yr 1984-85.
8. Intermittent lethargy
9. Abnormal calcification of teeth— under care of Dr. Harold Brown DDS— etiology? Has had one cavity.
10. Occasional epistaxis — spontaneous day or nite 1985-86
II. Urinary incontinence and diarrhea at home and school app 10 times/yr 1984-85-86.
12.Otitis external 3-4 times/summer 1985-86
Ryan Conde
Birthdate 6/5/76
1.URI & bronchitis several times/yr 1983-84-85-86
2. Very frequent thick mucous rhinitis 1984-85-86
3. Generalized abdominal pain with gas, abdominal distention and tympany lasting several hours and occuring [sic] 3-4 times/wk 1983-4-5 and slightly less frequently 1986.
4. Poor appetite 1983-84-85, somewhat improved 1986.
5. Diarrhea approx. . twice/month 1983-4-5 and occ. 1986.
6. Headaches frequently 1983-84, occasionally 1985-86.
7. Staph infection buttocks
&
thighs which required prolonged antibiotics on 3 occasions 1986. Staph infection nose 2-3 times 1985.
8. Hemangioma on neck which I excised 1983. Had been present x several months and enlarging.
9. Complained of feeling “dizzy” occasionally 1983.
10. Abnormal calcification of teeth— under care of Dr. Harold Brown DDS— etiology? No cavities.
11. Interupted [sic] urinary stream with short intervals of flow lasting only few seconds. This occurs primarily on first morning voiding — 1984-85-86. Occasionally occurs through night.
12. At time irritable, impatient and highly emotional 1985-86.
13. Seems more forgetful at home & school 1986.
14. Occasional fleeting rashes arms and abdomen 2/month 1983-4-5-6.
15. [sic] Epistaxis worse at night once/month 1983-84.
16. Laryngitis and hoarseness of voice lasting few days 3-4 times 1986 and 1-2 times 1985.
Rhonda Conde
Birthdate 8/17/52
1. Blurred vision — intermittently 1983. Saw ophthalmologist.
2. Tremor of hands — somewhat present constantly but worse at times — 1983-84-85-86. Less in 1985-86.
3. Nausea & vomiting occasionally 1983. Nausea-Stomach pain-84-86.
4. Epigastric pain frequently 1983-84. Some improvement 1985 and more
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severe 1986. Had normal UGI 1984 or 85.
5. Night sweats 1983-84.
6. Hands and feet feel cold constantly 1983-4-5-6.
7. Headaches several times/wk 1983— 84. Occasionally 1985-86.
8. Abnormal menstrual cycles — longer duration, heavier & cramps 1983-84. Normal pap smears.
9. Epistaxis occasionally 1983-4-5
10. Sudden severe substernal chest pains — lasted 5-10 minutes — occurred 1-2/month at rest & relieved spontaneously— 1985-86.
11. Mid & lower thoracic back pain daily and worse on awakening. Relieved when gone from house even 2-4 days.
12. Frequent redness & small urticar-ial rash arms, neck, abdomen, legs, etc. 2-3 times/wk 1983-84-85-86.
13. Vesicular eruption over sacrum with extreme tenderness . 2 episodes— 1984 & 1986.
14. Multiple dental problems with root canal, fillings, gingivectomy, etc. 1983-84-85.
15. Parpesthesias occasionally hands & feet 1983-84.
16. Difficulty with memory and concentration 1983.
17. Extremely agitated and irritable [with] emotional instability 1983-84.
18. Occasional low abdominal cramping and gas, occ. sharp low left quadrant pain 1983-84-85-86.
19. Repasted small labial ulcerations during menses 6-8 times/yr 1983-84-85.
20. Occasionally a few peticchyae various areas 1983-84-85-86 and before.
21. Junctional nevus L foot excised by me in late 1983.
22. Epidermal inclusion cysts shoulder, arm, legs 1983-84-85.
23. Fullness in throat frequently 1986.
24. Pharyngitis once/mo 1983-84-85-86.
25. Breast tenderness L > R 1986.
26. Carbuncles chin & shoulders 1-2/mo 1983-84-85-86
27. Wt loss app 17# 1983-84, has regained since
28. Superficial venous varicosities gradually worsening since 1985. External hemorrhoids occ.
29. Inclusion cysts shoulders, legs since end 1983
30. Non-specific myositis & tendinitis various areas frequently 1983-86
Dr. Conde also attached to his July 31, 1992 affidavit a letter dated June 7, 1990 setting out his own medical history. The letter states that from the application of chlordane in April 1983 until the family moved out of their home in November 1986, Dr. Conde experienced:
1) personality changes, 2) difficulty with memory and concentration, 3) chronic sinus congestion [with] rhinitis and cough, 4) profuse nocturnal sweats, 5) general abdominal tenderness with tym-pany and increased bowel sounds, 6) infectious and lacrimation eyes, 7) recurrent faseiulations of various muscle groups, 8) reddened, periratic rash_ surface of feet, 9) loss of balance, 10) general lethargy, 11) scaly, dry areas of rash on scalp and right forearm, and 12) irrational and inappropriate behavioral changes.
Since moving out, the following symptoms have persisted:
1) moderate-severe short term memory loss, 2) difficulty with concentration, 3) rhinitis and lacrimation with sneezing frequency, 4) occasional paraesthesias L ulnar nerve distribution, 5) cough, 6) emotional irritability and depression, 6) rare episodes of ocular migraine with visual field disturbance (3 episodes since 1986), 7) occasional episodes of fatigue and lethargy.
In addition, the letter states, Dr. Conde has “developed a serious and persistent emotional distress for both the present and future health implications for myself and my family due to the chlordane poisoning that occured [sic] in our former home.” Dr. Conde is
continually pre-occupied with the threat of cancer, blood dyscrocias (leukemia or aplastic anemia), and other serious medi
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cal diseases known to be associated with chronic chlordane poisoning. Besides the health risks, I have been severely distressed by the fact that we are unable to obtain life or health insurance, and our long anticipated plan of raising our children in the home of our choice has been totally disrupted due to this chlordane problem. I have lost faith and trust in people as a result of the deception and lack of responsibility of the people we have had-to deal with in this chlordane problem. I also have severe guilt feeling about the amount of time my wife and I have had to spend in dealing with this problem, and the time it has taken us away from our children and each other.
Dr. Conde concludes his June 7, 1990 letter with a self-diagnosis:
1) chronic chlordane toxicity with residual effects; 2) elevated body burden-ehlor-dane; 3) immunological suppression 2° to chlordane poisoning; 4) chronic fatigue-2° physical
&,
emotional -factors; 5) chronic depression-2° to multiple problems associated with chlordane poisoning; 6) hypersensitivity reactions (allergic rhinitis); 7) mild schorktoic dermatitis; 8) lipoma L thigh-2° to biofy; 9) basal carcinoma-R chest.
Dr. Conde states that when he and members of his family were presented with these, signs and symptoms, he mentally formulated differential diagnoses. Id., 115. He lists the differential diagnoses he has rejected from the following categories of diseases: infectious, metabolic, gastrointestinal, neurologic, psychological, and autoimmune.
Id.
116. He also lists the medical tests which have been performed oh each member of the family, but not the results of these tests.
Id.
¶17. Each member of the family has undergone extensive testing, including general chemistry screening profiles, autoimmune antibody profiles, chlordane and metabolite blood levels, fat biopsy, viral antibody tests, urinalysis, and X-rays.
Id.
Further, Dr. Conde states in his July 31, 1992 affidavit:
As a result of the concern with chlordane exposure, I have extensively reviewed the medical and scientific literature and consulted appropriate agencies and specialists concerning chlordane. • Among these, I have reviewed toxicologic, epide-miologic and critiques of epidemiologic studies among other articles regarding chlordane.
118. As Exhibit B to his affidavit, Dr. Conde attached a numbered list of 141 articles, pamphlets, press releases, periodicals, and other written sources “I have reviewed concerning the subject of chlordane.”
Id.
Dr. Conde also lists 49 persons or groups of persons he has consulted concerning chlordane and his family’s medical problems. No specific communications from or to these people are set out in this affida-' vit.
25
Id.
¶ 9.
Dr. Conde then states his opinions on medical causation:
10. Based upon my education, training, medical experience, my review of the medical and scientific literature, and consultations with various specialists and agencies, I have concluded with a reasonable degree of medical certainty that the following medical conditions have been directly caused by my family’s exposure to chlordane:
• I. Rhonda Conde — (A) Acute and chronic chlordane toxicity with:
1. Immunological Dysfunction
2. ■ Chronic Viremia — secondary to immunological dysfunction
3. Chronic Anxiety — secondary to depressive neurosis (severe)
4. Chronic Hépatic Dysfunction
5. Hematologic Abnormality — lym-phocytosis, thrombocytopenia, bone marrow suppression
11. James P. Conde — (A) Acute and chronic chlordane toxicity with:
1. Immunological dysfunction
2. Chronic depressive neurosis (severe)
III.Ryan. Conde — (A) Acute and chronic chlordane toxicity with:
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1. Immunological dysfunction
2. Liver abnormality — hyperbiliru-binemia, hepatosplenomegaly, hepatic toxicity
3. Mild-moderate anxiety/depressive neurosis
IV. Autumn Conde — (A) Acute and chronic toxicity with:
1. Immunologic dysfunction
2. Chronic anxiety/depressive neurosis — (moderate—severe)
V. Kimberly Conde — (A) Acute and chronic chlordane toxicity with:
1. Immunologic dysfunction
2. Mild chronic anxiety neurosis
3. Chlordane
Id.
1110. Dr. Conde states that his opinions are based on his medical expertise “and not upon my personal opinions of Velsicol or its counsel.”
Id.
II11. He states that if he were not a plaintiff in this litigation, his conclusions regarding his and his family's medical condition would not change.
Id.
II12.
Dr. Conde’s September 22, 1992 affidavit.
In response to the Court’s September 17 Order, Dr. Conde executed a third affidavit outlining his medical treatment of himself and his family. He summarizes his diagnoses as follows:
1. Acute and chronic chlordane poisoning-all Conde family members (James P., Rhonda, Ryan, Autumn and Kimberly)
2. ■ Immunological dysfunction — All Conde family members
3. Bone marrow suppression — thrombo-cytopenia-Rhonda
4. Hepatosplenomegaly, Hepatic Dysfunction and Hyperbilirubinemia-Ryan
5. Hepatic Dysfunction-Rhonda
6. Chronic Viremia-Rhonda
7. Severe Anxiety/Depressive Neurosis-Rhonda, Autumn, James P.
8. Mild-moderate Anxiety/Depressive Neurosis-Ryan, Kimberly
Dr. Conde’s September 22, 1992 affidavit, ¶ 5. He again states his opinion that these diseases “were directly and proximately caused by the acute and chronic exposure to chlordane which occurred at our residence .... ”
Id.
In forming his medical opinions, Dr. Conde states, he “relied on a number of different resources, among them were telephone conversations with various medical specialists and scientists with particular knowledge, expertise and experience in toxic exposure in general, and chlordane exposure in particular.”
Id.
¶ 6. He then summarized their communications to him:
a. Mr. David Schneider — Velsicol Chemical Corporation Representative — misapplication of chlordane. He assured me that chlordane was perfectly safe. He advised me to call Dr. Calo, M.D. for further reassurance.
b. Charles J. Calo, M.D. — Director of Toxicology for Velsicol Chemical Corporation — Advised me that chlordane was perfectly safe, that I could remove it by washing with water and detergent, that it was not necessary to close the open holes in cement blocks of foundation, and that there were no health risks. He stated he sprayed it around his camper all the time to kill insects.
c. Dr. Samuel Epstein, M.D. — University of Illinois' Medical Center, School of Public Health — Advised that chlordane was dangerous and advised we move from the house to avoid further exposure. Advised me of possibility of immune system damage, leukemia, aplastic anemia, neuroblastomas, liver disease including cancer and felt the symptoms we were experiencing was due to ongoing chlordane poisoning. Advised chlordane could not be removed. ’
d. Diane Baxter — Toxicologist with NCAMP — Advised to abandon home. Advised of dangers including bone marrow suppression, liver problems, various cancers.
e. Dr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1651740. Public record. Not legal advice.