# In Re TMI Litigation Cases Consolidated II

> District Court, M.D. Pennsylvania · January 5, 1996 · 911 F. Supp. 775

URL: https://www.frixlaw.com/law-library/cases/1971018

## Case

- **Full name:** In Re TMI LITIGATION CASES CONSOLIDATED II. This Document Relates to All Plaintiffs
- **Court:** District Court, M.D. Pennsylvania
- **Decided:** January 5, 1996
- **Citations:** 911 F. Supp. 775; 1996 U.S. Dist. LEXIS 543; 1996 WL 12079
- **Precedential status:** Published
- **Opinion:** Opinion by Rambo
- **Judges:** Rambo
- **Cited by:** 17 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/1971018

## How later opinions describe it (automated extraction)

- finding dose estimates, “plume movie” 47 and water model to be inadmissible

## Opinion text

MEMORANDUM
RAMBO, Chief Judge.
Presently before the court is Defendants’ motion
in limine
to exclude the testimony of Plaintiffs’ experts on dose. Specifically, Defendants seek to exclude some or all of the testimony of the following experts: Richard Webb, David A. Loehbaum, Ignaz Vergeiner, Charles E. Armentrout, James E. Gunckel, Victor Neuwirth, Vladimir A. Shevchenko, Steven B. Wing, Douglas Crawford-Brown, and Bruce Molholt. The issues have been briefed, and the court has conducted extensive
in limine
hearings with respect to these experts.
1
Accordingly, Defendants’ motions
in limine
are ripe for disposition. In addition, the court previously issued an order, unaccompanied by a memorandum of law, with respect to the following experts: Dr. L.N. Smierennyi, Dr. Ivannovich (L.N.U.), Professor Vasilenko, Ronald Kerman, Zinovy Reyblatt, Professor Eggar, Professor Scharr, Victor Neuwirth, A. Tascev, G. Kozubov, V. Popov, A. Portman, and O. Tarasenko. This memorandum of law will set forth the court’s rationale with respect to those rulings.
I.
BACKGROUND
The events precipitating this litigation began to unfold at approximately 4:00 a.m. on March 28, 1979, within the Unit-2 reactor at the Three Mile Island nuclear power facility (“TMI”). The facility is located on an island in the Susquehanna River not far from Goldsboro, Pennsylvania, and the events are now known to have led to the nation’s most infamous nuclear reactor accident. Despite the diligent research efforts of many persons, including persons affiliated with the instant action, many important questions remain regarding the accident. In the context of this
*786
litigation, the parties have endeavored to answer these questions by explaining the course of events that constitute the TMI accident. The
in limine
hearings conducted by the court in November of 1995 focused on the parties’ theories regarding the dose of radiation emitted from TMI and allegedly received by Plaintiffs. The United States Court of Appeals for the Third Circuit has recently ruled that Defendants violated the relevant standard of care by allowing radioactive releases to occur.
In re TMI,
67 F.3d 1103, 1117-18 (3d Cir.1995). The issue that remains is that of the magnitude of release for purposes of proving causation and damages.
Id.
at 1119 . (“Defendants violated the standard of care.... Plaintiffs’ exposures to radiation remain relevant, but only to prove causation and damages.”)
Plaintiffs posit that a “blowout” occurred within the TMI Unit-2 reactor, thereby forcing high quantities of radioactive noble gases into the atmosphere. Plaintiffs have proffered the testimony of a variety of experts in support of this theory. These experts opine on subjects as diverse as nuclear reactor physics, meteorology, chromosomal abnormalities, cancer incidence, and plant biology. Through their experts, Plaintiffs seek to demonstrate that after the blowout occurred within the reactor, winds carried a dense yet narrow plume of radioactive noble gases through the atmosphere. This plume, according to Plaintiffs, made contact with land in areas north and east of TMI, with the most significant contact occurring at higher elevations.
2
Supporting their theory, Plaintiffs contend, is evidence of tree damage, chromosome abnormalities in humans, increased cancer incidence rates, and evidence of radiation sickness in both humans and animals.
Defendants do not deny that some radioactive noble gases escaped from the reactor building during the accident.
In re TMI,
67 F.3d at 1118 (“Defendants conceded that they violated § 20.106, [therefore we find] they violated their duty of care.”) However, Defendants contend that Plaintiffs cannot prove either that the release was significant and dangerous or that their alleged injuries were caused by radiation. Defendants challenge Plaintiffs’ proffered expert testimony on dose as lacking scientific reliability.
II.
LEGAL STANDARDS FOR THE ADMISSION OF EXPERT SCIENTIFIC TESTIMONY
In
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993), the Supreme Court outlined the standards and reasoning that a district court must apply in determining whether expert scientific testimony is admissible at trial. The Third Circuit Court of Appeals has interpreted
Daubert
to characterize the district court’s role as that of “gatekeeper.”
In re Paoli Railroad Yard PCB Litigation,
35 F.3d 717, 732 (3d Cir.1994)
(“Paoli II
”). Both
Daubert
and
Paoli II
require the district court “to act as ‘gatekeeper’ and to assure that the scientific methodology upon which the expert opinion is founded is reliable, i.e., that the expert’s conclusion is based on good grounds (the methods and principles of science).”
Paoli II,
35 F.3d at 732 (discussing
Daubert).
This court’s analysis of the proffered expert scientific testimony will be guided by the Third Circuit’s exhaustive discussion and interpretation of
Daubert
in
Paoli II.
Rule 702 of the Federal Rules of Evidence contains two basic requirements. The person proffered to testify as to scientific knowledge must be an expert, and the expert’s proffered scientific opinion must be reliable.
Paoli,
35 F.3d at 741-42 . A proffered expert’s qualifications should be evaluated under a rather liberal standard extending to the “substantive as well as the formal qualification^]” of the expert.
Id.
at 741 . Consequently, an expert who has little or no formal training in a given area may be found qualified based upon his life experience or extensive work history in that area. The reliability prong of the Rule 702 inquiry requires a district court to probe the scientific
*787
validity of proffered expert testimony.
Id.
at 742 . When making this reliability inquiry, “a district court should take into account all of the factors listed by either
Daubert
or
Downing
3
as well as any others that are relevant.”
Paoli II,
35 F.3d at 742 . Specifically, the court must consider the following factors:
(1) whether the method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be rehable; (7) the qualifications of the expert witness testifying based on the methodology; (8) the non-judicial uses to which the method has been put.
Id.
at 742 n. 8.
4
In addition to these factors, this court has apprised the parties that it also finds the following factors to be relevant:
Falsifiability. — Scientific explanations must be capable of falsification; that is, the logical form of a hypothesis must make it amenable to empirical testing ... [the factor is important enough that] the Supreme Court listed [it] first among its factors.
Logical Consistency. — A valid hypothesis cannot be self-contradictory.... [I]t is evident that a hypothesis that contradicts itself is logically ill-formed and cannot be tested.
Consistency with Accepted Theories.— Scientific knowledge tends to be cumulative and progressive, and a hypothesis that is not consistent with accepted theories should be regarded with great caution, whether or not the hypothesis ultimately proves true.... Though the Supreme Court rejected the Frye test, it did retain acceptance as one of the factors to be considered in evaluating science.
Precision. — Broad generalizations are far more difficult to corroborate than precise statements and have little explanatory power.... If severe and varied tests are the best indicator of validity, it follows that broad generalization that can account for any possible state of affairs, and thus cannot be empirically tested, are not as good.
In re TMI,
No. 88-1452 (M.D.Pa. November 9, 1995) (order explaining the factors the court would consider when ruling on
in li-mine
motions) (quoting Bert Black,
et al,
Science and the Law in the Wake of
Daubert :
A New Search for Scientific Knowledge, 72 Tex.L.Rev. 715, 783-84 (1994)).
Finally, Rule 702 also requires that there be a “fit” between the testimony offered and a fact in issue.
Paoli II,
35 F.3d at 743 .
“ ‘Fit’ is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes.” Thus, even if an expert’s proposed testimony constitutes scientific knowledge, his or her testimony will be excluded if it is not scientific knowledge
for purposes of the case.
Id.
(quoting
Daubert ,
509 U.S. at-, 113 S.Ct. at 2796 (citation omitted) (emphasis in original)). Once the party seeking to admit the testimony demonstrates that the proffered testimony is reliable by a preponderance of the evidence,
Paoli II,
35 F.3d at 744 n. 11 (citing Daubert), the court must evaluate the proffer pursuant to Rule 403.
Rule 403 requires the district court to consider whether the admission of proffered testimony might overwhelm or confuse the jury. As explained in
Paoli II:
[A] district court cannot exclude a scientific technique as too confusing and overwhelming simply based on its conclusion
*788
that scientific techniques by their very nature confuse and overwhelm the jury. There must be something about the particular scientific technique such as its posture of mythic infallibility that makes it especially overwhelming.
Id.
at 746 . Thus, “in order for a district court to exclude scientific evidence, there must be something
particularly
confusing about the scientific evidence at issue.... ”
Id.
With the foregoing framework in mind, the court will reach the merits of Defendants’ motion
in limine.
Embarking on this task, the court empathizes with the plight of the United States Court of Appeals for the Ninth Circuit as they recently ruled on the remand of
Daubert .
Before beginning their analysis, the Ninth Circuit reflected as follows:
[TJhough we are largely untrained in science and certainly no match for any of the witnesses whose testimony we are reviewing, it is our responsibility to determine whether those experts’ proposed testimony amounts to “scientific knowledge,” constitutes “good science,” and was “derived by scientific method.”
The task before us is more daunting still when the dispute concerns matters at the very cutting edge of scientific research, where fact meets theory and certainty dissolves into probability. As the record in this case illustrates, scientists often have vigorous and sincere disagreements as to what research methodology is proper, what should be accepted as sufficient proof for the existence of a “fact,” and whether information derived by a particular method can tell us anything useful about the subject under study.
Our responsibility, then, unless we badly misread the Supreme Court’s opinion, is to resolve disputes among respected, well-eredentialed scientists about matters squarely within their expertise, in areas where there is no scientific consensus as to what is and what is not “good science,” and occasionally to reject such expert testimony because it was not “derived by scientific method.”
Daubert v. Merrell Dow Pharmaceuticals,
43 F.3d 1311, 1316 (9th Cir.1995)
(“Daubert II”).
The scientific issues before this court are similarly daunting. As a nation, we are grateful that we have experienced only one nuclear power reactor accident of the severity of the TMI accident. In the context of this litigation, however, this translates into a lack of concrete data and knowledge regarding the specifics of such an accident. To an extent, then, this will be a journey into uncharted waters.
III.
RICHARD WEBB
A. Dr. Webb’s Blowout Theory
Dr. Webb, who holds a Ph.D. in Nuclear Reactor Physics, is proffered by Plaintiffs to discuss reactor operations during the accident, and to explain how fission product noble gases were released into the atmosphere. Dr. Webb’s report expresses his opinion that a “hydrogen blowout” occurred within the TMI Unitr-2 reactor, causing a chain reaction culminating in the atmospheric release of fission product noble gases through the Reactor Coolant System and the Letdown line.
5
*789
Richard Webb,
Analysis of the Three Mile Island Nuclear Accident With Respect to the Release of Noble Gas Fission Product Radioactivity into the Atmosphere,
June 19, 1993, at 19 (hereinafter “6/19/93 Webb Report”). The 6/19/93 Webb Report characterizes the blowout as follows:
The lack of forced coolant flow allowed the water in the RCS [ (Reactor Coolant System) ] to lay and collect in lower parts of the system by gravity. The water level in the 1A cold leg pipe of the RCS is specially [sic] important; for near the base of that pipe is where the Letdown pipe is connected to the RCS. In the period between 10 hours and 13.5 hours into the accident, the 1A cold leg pipe probably emptied of water, due to venting of the reactor coolant through the PORV valve Goss of water from the RCS), and drainage of the water by the letdown out-flow. Because of the large drop in water inventory in the RCS by the PORV venting (during which time the injection of “make-up” water was minimal, and the make-up water was injected into the B-loop cold legs, not the A-loop cold legs), the water level in the reactor vessel probably dropped below the elevation of the inlet and outlet nozzles of the reactor vessel, thereby stopping the water flow (pour) into the 1A cold leg from the vessel, and thus allowing the 1A cold leg pipe to drain completely, due to the continuous letdown out-flow.
Once the water level dropped below the intake of the Letdown pipe, the gas and water vapor in the gas space of the Reactor Coolant System could then enter the Letdown pipe (under high pressure) and
blow out
from the system.
(Id.
at 19 (citation omitted).) Dr. Webb did not testify at the
in limine
hearings, although his deposition is of record. Significant portions of Dr. Webb’s deposition are troubling, however, as they evidence Webb’s uncertainty about his own hypothesis, methods and report.
(See, e.g.,
Webb Dep. at 125 (“Q. What was in between the upper and lower crust?” “A. The consolidated region, yes, the consolidated region they call it. If you notice they give .2 percent is metal.
So apparently I just neglected it.
I don’t see it in my notes.”) (emphasis added); Webb Dep. at 225 (“And so I haven’t really finished my
*790
investigation of that second blowout possibility or additional hydrogen generation, therefore more release of hydrogen noble gases earlier in the accident.
So I have to make it more complete or accurate about the matter of hydrogen generation.”)
(emphasis added); Webb Dep. at 256 (“Q. On page two of your report you say that ‘A more detailed critique of Woodard’s analysis has been written for inclusion as a section of this present report, but it has not been possible to type this critique in time for submission in this present report.’ Did you ever type and submit that critique?” “A. Not yet. I’ve been involved in tremendous research_”); Webb Dep. at 372 (“You got to keep in mind,
this result
I’m getting of release by the model is not a,
is not presented and represented to be a very accurate plus or minus 1 percent sure established prediction.”)
(emphasis added); Webb Dep. at 529 (“Q. Now I’m really confused. Should that number be 163 or 171 or 213 or something else?” “A. You have a right to be confused_” “Q. What should it be?” “A. Well, I’ll, as I said, I wasn’t fully, my latest calculation is the number 171 I gave you.” “Q. All right.” “A. Now that 213, maybe that’s based on the 71 gallons per minute and
I neglected to correct it.
Again there was a very extreme deadline and I worked like 16-hour days and the last few days was like, like three hours’ sleep, this kind of thing the last few days.” (emphasis added).)
On December 6, 1995, the court became aware of a message left by Dr. Webb on the voice mail of A.H. Wilcox, co-counsel for Defendants. Through this message, Dr. Webb appears to have disavowed the underlying premise of his blowout theory. In relevant part, the message provides as follows:
Chub Wilcox, Richard Webb calling from Germany. As a courtesy to you I want to tell you why I haven’t answered your questions at the deposition. I did prepare a letter to send you but it, in fact was ready to mail out. But I wanted to pursue questions I had of my own mathematical analysis which I’ve done in a very intensive and several months of deep research and I’ve remodeled and perfected my release models and I don’t get the high releases that I got before, so it’s like 25 million curies instead of 106 million curies.
There’s no blowout, gas blowout, that I estimate now that I had done earlier. There’s a smaller one earlier in the accident that I’m predicting now, but it’s during the time when the weather conditions dispersed the material much more.
So it’s entirely, I always wanted to get back to the release model after I did all the dose and health effects research, get back to the release model that I did before and the deposition was an occasion to get back into that scene and pursue some of the questions I still had about which I noted in my original treatise. So I was going to make a report and submit it to the court about three weeks ago but I had to stop all that work after learning that the United States attacked Bosnia back in September ... so I’ve now been working full time the last three weeks to write up a paper on constitutional law about this war to give my government.
Transcript of Voice Mail Message received by A.H. Wilcox on 12/6/95 from Dr. Richard Webb (emphasis added).
B.
DaubertlPmli Analysis
In defining the phrase “scientific knowledge” as it pertains to Rule 702 of the Federal Rules of Evidence, the Supreme Court noted that “the word ‘knowledge’ connotes more than subjective belief or unsupported speculation. The term ‘applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.’”
Daubert,
509 U.S. at-, 113 S.Ct. at 2795 (citation omitted). The Court went on to conclude that “the requirement that an expert’s testimony pertain to ‘scientific knowledge’ establishes a standard of evidentiary reliability.”
Id.
Pursuant to Rule 104(a) of the Federal Rules of Evidence, this court must determine “whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.”
Id.
at-, 113 S.Ct. at 2796 .
In evaluating the Webb proffer, the court encountered difficulty deciphering the substance of the proposed testimony. During June of 1993, Dr. Webb submitted a series of
*791
reports and affidavits in support of his evaluation of the TMI accident. These filings are replete with statements by Dr. Webb that they are draft versions, and that more complete reports and explanations will follow at a later date. (See,
e.g.,
6/19/93 Webb Report at 1 (“[I]t has not been possible to write a full treatise which would contain the complete details of the analysis and proof in the time required for submitting the Affidavit. In place of such a treatise, which can be written later, the following report of the analysis is offered....”); 6/19/93 Webb Report at 24 (“I have written separate chapters ... which contain my critical evaluation of Daniels and Woodard treatises and the Presidents’ Commission Report ... but it has not been possible to type and print these chapters for submission of this present report.”).) No “final” report was filed prior to the close of fact discovery on dose experts. Moreover, as noted above, during his deposition Dr. Webb appeared particularly uncertain of his methodology and the means by which he reached his conclusions. Dr. Webb’s reports, standing alone, are inadequate to serve as a basis for finding that Dr. Webb would testify to scientific knowledge. Likewise, Dr. Webb’s deposition testimony does little to solidify or clarify his analysis; in fact, it only adds to the confusion. Finally, Plaintiffs chose not to have Dr. Webb testify during the
in limine
hearings. As such, the court was unable to probe Dr. Webb himself regarding the uncertainties expressed in his report and deposition testimony.
Based upon the aforementioned discussion, the court was prepared to exclude the testimony of Dr. Webb as unreliable pursuant to Rules 702 and 104(a) of the Federal Rules of Evidence.
Whiting v. Boston Edison Co.,
891 F.Supp. 12, 18 (D.Mass.1995) (excluding expert’s dose calculation based on formula of his own invention which, although superficially impressive, was “so riddled with factual inaccuracies and unproven assumptions that no reasonable jury could give his opinion credence.”). Receipt of the transcript of Dr. Webb’s voice mail message to Mr. Wilcox only reinforced the court’s decision on this matter. As Dr. Webb himself is unable to stand behind his hypothesis or to explain how he reached his conclusions, it is impossible for the court to see how he could assist a jury in understanding the complex facts of the captioned action. Accordingly, the court will grant Defendants’ motion
in limine
as it applies to the proffered testimony of Dr. Webb.
IY.
DAVID A.
LOCHBAUM
6
David Lochbaum is a nuclear engineer with fifteen years experience in the commercial reactor field. In his expert report, Lochbaum reviews Dr. Webb’s report and reaches the conclusion that “Webb’s methodology provides a valid approach for the determination of the release of fission product noble gases.” (Lochbaum Rpt. at 5.) Lochbaum did not testify during the
in limine
hearings, and does not advance any relevant theory or hypothesis independent of his review of Dr. Webb’s report. Because the court has found Dr. Webb’s testimony to be unreliable and therefore inadmissible, Loehbaum’s testimony no longer “fits” within the case. That Lochbaum can opine as to the methodological soundness of Dr. Webb’s report, or point to flaws in Dr. Webb’s methodology, is of no consequence as Dr. Webb’s report will not be admitted. Based upon the foregoing, the court will grant Defendants’ motion
in limine
to exclude the testimony of David Lochbaum as lacking the requisite Rule 702 fit with a fact in issue.
V.
IGNAZ VERGEINER
Dr. Vergeiner is a meteorologist affiliated with the University of Innsbruck in Innsbruck, Austria. He holds undergraduate degrees in math and physics, and a Ph.D. in meteorology. For the past twenty years he has taught meteorology at both the undergraduate and graduate levels. Plaintiffs proffer Dr. Vergeiner as an expert in meteorology, specifically boundary level meteorolo
*792
gy in alpine regions,
7
for the purpose of explaining how the alleged plume of radioactive noble gases travelled and dispersed after being released during the TMI accident. Defendants have filed a motion
in limine
seeking to exclude all of Dr. Vergeiner’s proffered testimony.
A.
Proffered Testimony
Dr. Vergeiner’s testimony can be subdivided into three distinct areas. First, he has been offered to testify on the subject of boundary layer meteorology. If permitted, Dr. Vergeiner will opine regarding the weather conditions at TMI and in surrounding areas at the time of the accident and during the period immediately following the accident.
8
Based upon his own assumptions and source term data supplied to him by Plaintiffs’ counsel,
9
Dr. Vergeiner produces estimates regarding plume dispersion. A “plume movie” and water model
10
are presented to assist Dr. Vergeiner in explaining his hypothesis. The “movie” is actually a series of sketches drawn by Dr. Vergeiner aimed at depicting the
possible
course of plume dispersion during the accident. (Tr. at 617-21, 634-36, 654.) Similarly, the water model is used to visually demonstrate how a plume
might
have dispersed over the TMI region during the accident. (Vergeiner Dep. at 235-38, 241.) Defendants seek to have the plume dispersion testimony excluded as scientifically unreliable and speculative. Further, Defendants seek exclusion of the plume movie and water model video on the ground that they will confuse the jury. Defendants fear that the jury will construe the examples as what
did
happen rather than what
could
have happened.
Second, Dr. Vergeiner is proffered to give his estimates of dose in certain areas surrounding TMI. These dose estimates are based upon his plume dispersion models, and on source terms given to him by Plaintiffs’ counsel. Defendants seek to exclude this
*793
portion of Dr. Vergeiner’s testimony as scientifically unreliable. During his deposition Dr. Vergeiner was unable to explain the genesis of his source terms. (Vergeiner Dep. at 248-49.) Further, at the hearing, he characterized his own models as a hybrid of art and science. (Tr. at 688.)
Finally, throughout his report, Dr. Ver-geiner expresses his opinions regarding subjects wholly unrelated to meteorology. These opinions center around a general distrust of the “original” plant data from TMI, and around an apparent suspicion of the nuclear power industry. Defendants object to this testimony as being outside Dr. Vergeiner’s area of expertise.
The court will analyze each of the above mentioned areas of proffered testimony under the
Daubert/Paoli II
framework set forth in Section II of this memorandum.
B.
Daubert/Paoli Analysis
1.
Is the Methodology Based Upon a Testable Hypothesis?
The logical starting point for an analysis of Dr. Vergeiner’s methodology is his own somewhat convoluted discussion of that methodology. When asked during the
in limine
hearings whether his method consisted of a testable hypothesis, Dr. Vergeiner responded as follows:
I would say this. When I started this work, I had no finished hypothesis. How should I? There was no way I could have. So I started drawing together the data and forming a picture — analyzing the data and forming a picture of the weather situation. In the end, I believe what I do have you may call a hypothesis, or a choice of hypotheses, and I would explain them this way.
One hypothesis is that most of the time that we are interested in, when releases occurred, plumes were narrow and relatively little diluted. So the concentrations were very high, depositions were very localized and you have to face the consequences.
The other hypothesis would be that plumes were overwhelmingly or exclusively as wide as Mr. Woodard has computed them to be, right? They were so diluted already before they hit any hills or mountains that impaction could not occur, that these features had practically no influence on what happened at that — of course, you must also then draw the consequences from that.
And I am convinced out of my work that there is strong reasons for the hypothesis that plumes were most of the time were very narrow and undiluted, and I will explain that. Of course, the best proof of that would be either if we had seen these plumes or if we had been able to have detailed measurements up in the air, documenting these plumes. Right? ... So we don’t have that kind of information.
So I’m trying to obtain a picture of how such a hypothesis might be verified. And of course, it is also true that when I think of what I would have needed to really verify any hypothesis, some of these, many of these data are not, do not exist. For example, it would have been great to have many, many measurements of air concentration, because what the model, the Gaussian model, the first thing it gives you is concentration of the release, right? Of the substance. . But there is no such measurement. There are some few measurements of iodine, but there is no measurement of the noble gases, as far as I remember, if I remember correctly, to until day eight or nine after the release, eight or nine days after the release, after the start of the accident.
So this type of information is absolutely lacking. And I did look at, just to confirm some assumptions, some scenarios, I call them, I did look at concentration' data....
(Tr. at 618-21.) From this explanation, the court surmises that the Vergeiner hypothesis provides that a narrow and highly concentrated plume was emitted from TMI during the accident, and that the plume remained concentrated for a prolonged period of time. (Pis.’ Findings of Fact and Conclusions of Law at 10 (“Dr. Vergeiner’s hypothesis is that the plume from the TMI accident did not disperse in accordance with a Gaussian plume model, but instead remained in a con
*794
centrated form and travelled in a narrow plume manner.”) (hereinafter “Pis.’ Findings”).) This hypothesis is testable insofar as another expert could use the data employed by Dr. Vergeiner to reach an independent conclusion.
11
However, because Dr. Vergeiner elected to “eyeball” his plume movie drawings they would necessarily be difficult to accurately test or replicate.
(See
Vergeiner Dep. at 312-13.)
Additionally, Dr. Vergeiner’s dose estimates do not lend themselves to empirical testing. The source terms used by Dr. Ver-geiner as a basis for his estimates were provided by Plaintiffs’ counsel.
12
Dr. Ver-geiner himself could not explain how the figures were derived. Consequently, any expert endeavoring to test the validity of Dr. Vergeiner’s dose estimates would be relegated to relying blindly on the source terms supplied by Plaintiffs’ counsel. As such, it would be impossible to subject the dose hypothesis to rigorous and unbiased testing.
13
Based upon the foregoing, the court finds that Dr. Vergeiner’s hypothesis cannot be empirically tested. The bulk of Dr. Vergeiner’s testimony consists of broad generalizations and suppositions regarding what might have happened during the accident. While such generalizations could provide a valid starting point for a detailed analysis, Dr. Vergeiner’s opinions never move beyond this starting point. Thus, no hypothesis is advanced that is capable of being tested. Accordingly, this factor weighs against admit ting Dr. Vergeiner’s proffered testimony.
2.
Has the Methodology Been Subject to Peer Review?
Insofar as boundary layer meteorology and synoptic analysis
14
are standard tech-
*795
ñiques, Dr. Vergeiner’s use of these standard techniques in a standard manner has been the subject of significant peer review. To the contrary, Dr. Vergeiner testified that the treatise that he prepared for this litigation has not been peer reviewed. (Tr. at 628.) However, Dr. Vergeiner stated that the principles underlying the conclusions reached in his treatise have been subject to peer review.
(Id.
at 624-26.) That Dr. Vergeiner has “been unable or unwilling to publish ... [his] work undermines plaintiffs’ claim that the findings [Dr. Vergeiner] proffer[s] are ‘ground[ed] in the methods and procedures of science’ and ‘derived by scientific method.’ ”
Daubert II,
43 F.3d at 1318 n. 9 (quoting
Daubert,
509 U.S. at-,-, 113 S.Ct. at 2795, 2796 ). The court finds nothing to indicate that Dr. Vergeiner’s plume movie or water model methodology has been subject to peer review.
15
Similarly, it is axiomatic that Dr. Vergeiner’s methodology of adopting source terms presented to him by Plaintiffs’ attorneys has not been subject to peer review.
This factor will weigh in favor of the admission of Dr. Vergeiner’s basic meteorologic and synoptic analysis testimony, and against the admission of Dr. Vergeiner’s plume movie, water model and dose estimate testimony.
3.
Is There a Known or Potential Rate of Error?
During his testimony, Dr. Vergeiner did not discuss whether there existed any known or potential rate of error with respect to his methodology. Rather, he expounded upon his personal belief that “the general picture and the general magnitude of the concentrations of these plumes would be right,” but that the exact course and concentration of the plume could not be calculated by anyone. (Tr. at 622-23.) The court finds the potential rate of error to be high. Much of Dr. Vergeiner’s report, as mentioned above, is based upon speculation and estimates. Moreover, although Dr. Vergeiner stated that he believes that it is important to test a hypothesis, he did not thoroughly test his hypothesis. According to Dr. Vergeiner, he tested his hypothesis “to the limited extent that seemed sensible” to him. (Tr. at 663.) When asked to explain the limitations, Dr. Vergeiner noted that he “did not compare ... [his] plume movie with TLDs because ... [he] believe[d] that the TLDs have very bad instruments, very insensitive and very not useful for discriminating plumes.”
(Id.
at 664.);
cf. Whiting,
891 F.Supp. at 18 n. 24 (discussing the flawed methodology where expert disregarded primary and secondary data due to his unsubstantiated mistrust of the accuracy of TLDs). In qualifying this answer, Dr. Vergeiner concluded that “[w]e have to get away from the idea that anything that is called data or measurement is beyond criticism.”
(Id.
at 664 — 65.)
In the long run, Dr. Vergeiner may be proven to be correct. TLDs
16
may eventually prove to be highly ineffective at measuring plume concentration. However, the court takes judicial notice of the fact that the relevant scientific communities regularly use TLDs and find them to be a valid means of measuring radioactivity.
See
NUREG-0637, “Report to the Nuclear Regulatory Commission from the Staff Panel on the Commission’s Determination of an Extraordinary Nuclear Occurrence (“ENO”)” at A1-A4 (January 1980) (general discussion of TLDs with specific attention paid to their use at TMI in conjunction with evaluating the TMI-2 accident). As such, the court finds that within the context of this litigation, Dr. Ver-geiner’s refusal to consider such information calls into question the reliability and scientific validity of his conclusions. At the very least, Dr. Vergeiner could have compared his results with the TLD readings and then ex
*796
plained to the court why his results were scientifically more sound than the TLDs. Instead, Dr. Vergeiner has disregarded arguably valid information without any rational explanation. The court finds that his failure to consider primary data in combination with his use of speculation, assumptions and “eyeballing” of figures, exposes Dr. Vergeiner’s methodology to a potentially high rate of error. Moreover, the court finds that the failure of the water model to take into account the actual topography of the TMI area increases the risk that any demonstration run through the water model will be subject to a high rate of error. (10/18/95 Vergeiner Aff. at 6, ¶6 (discussing limitations of the water model).)
This factor will weigh against the admission of Dr. Vergeiner’s testimony including his plume movie and water model.
4.
Were There Standards Controlling the Technique’s Operation?
The court finds this factor to have only tangential relevance to Dr. Vergeiner’s proffered testimony. Insofar as Dr. Vergeiner “eyeballed” his plume movie, the court holds that there were few standards controlling the operation of that technique. Further, the court finds that in making his dose estimates, Dr. Vergeiner failed to employ basic standards to control his technique’s operation.
17
It appears that there were available standards to control the operation of the water model,
see
Water Model Report at 9; however, this will prove irrelevant in light of the other flaws which the court has already touched upon.
Based upon the foregoing, the court will not accord any weight to this factor when determining the admissibility of the proffered testimony.
5.
Is the Methodology Generally Accepted?
Certain of Dr. Vergeiner’s methodologies are generally accepted while others appear to be directly contrary to generally accepted methods. Dr. Vergeiner’s methods with respect to his basic meteorological and synoptic analysis testimony are generally accepted. The parties do not dispute this. The plume dispersion and dose estimate methodologies cannot be categorized as generally accepted based upon a common flaw. At the hearing, Dr. Vergeiner testified that he discarded standard mathematical computer models
18
often used to estimate concentrations when actual concentration measurements are unavailable,
see
EPA 1992 at 22,-912; NRC 1995 at 36, on the ground that the models did not take into consideration the complicated wind and topographical conditions at TMI. (Tr. at 562-66.) In his report, however, Dr. Vergeiner gives a less scientific explanation for his disregard of generally accepted methods:
So why not straightaway model the flow numerically using the power of modern computers? Let me remind the reader of the enormous complexity of such a task. Transport and dispersion models exist to the hundreds, many of them in the nuclear industry or in the scientific “grey zone” around it.... Even to list the respective acronyms would fill pages.
Quite a few of these models are global in scale, and some apparently have succeeded in simulating the path and contaminating action of the Chernobyl clouds reasonably well, after years of tuning and verification on the many observations available.
Documentation is a problem, as well as the need for special graphics and internal rou
*797
tines, or compatibility of various computer languages. Not all applications have been successes ...
It was my judgement, therefore, not only that it did not seem feasible to obtain access and results within a limited time span and financial frame, but that relatively simpler, well-tested, more robust and accessible models might be just as good, even preferable. This may appear to do injustice to the more than 50 man-years’ [sic] expert work condensed in this enormous structure. There is no doubt that each of these models is capable of computing flow structures very suggestive of real nature, but I couldn’t convince myself that the enormously increased expense would bear a sound relation to similarly improved results.
Ignaz Vergeiner,
Treatise on the TMI-2 Accident of March 28, 1979, Particularly its Meteorological Aspects Including Transport and Dispersion of the Radionuclides Released,
at 50 (July 1994) (hereinafter ‘Ver-geiner Treatise I”).
Dr. Vergeiner admits to discarding the generally accepted computer models with respect to his dose calculations and plume dispersion analysis. Moreover, he fails to provide the court with anything other than his bare assertion that the self-styled models he does employ are generally accepted. Dr. Vergeiner has not met his
Daubert
burden in this respect.
Daubert II,
43 F.3d at 1319 .
Based upon the foregoing, this factor will weigh in favor of excluding Dr. Vergeiner’s testimony with respect to the plume movie and dose estimates. This factor will not weigh against the admission of the water model testimony.
6.
Is There a Relationship Between the Technique and Methods That are Established to be Reliable?
Portions of Dr. Vergeiner’s methodology resemble methods established to be reliable while other portions appear novel. Defendants do not challenge, and the court does not question, that Dr. Vergeiner’s broad meteorological statements and synoptic analysis comport with established and reliable meteorological principles. Less can be said with respect to his plume movie, water model and dose estimates. Using computerized models, such as the Gaussian model, as the “established and reliable” method against which Dr. Vergeiner’s methods must be judged,
19
the court finds no relationship between the two. Further, the court finds no recognizable similarities between established methods for dose reconstruction and Dr. Ver-geiner’s dose estimates. The literature does not support the notion that a scientist would blindly base a dose reconstruction upon an assumed and unverified source term supplied by attorneys.
See, e.g.,
Radiation Dose Reconstruction at 16 (“A full description of the source term includes what was released and in what form and where and when the release occurred. These factors must be described with enough accuracy and detail both to satisfy the scientific requirements for the design and conduct of epidemiologic studies and to address the public’s concern.”);
id.
at 18 (“The credibility of a comprehensive source term study depends on confirming that all pertinent documents have been seen and evaluated. Complete records are essential in identifying the source term.”)
The court finds that this factor weighs in favor of excluding Dr. Vergeiner’s plume movie, water model and dose estimate testimony.
7.
Qualifications of the Expert Based Upon the Methodology
Dr. Vergeiner’s curriculum vitae evidences his qualifications as a meteorological expert. Moreover, Defendants do not challenge his credentials. The court, however, questions Dr. Vergeiner’s ability to opine as an expert with respect to his dose estimates. A review of his curriculum vitae reveals no specialized experience tending to qualify Dr. Vergeiner as an expert in the area of dose reconstruction.
20
Thus, while the court agrees with Plaintiffs that “Dr. Vergeiner’s
*798
meteorological credentials unquestionably qualify him for his analysis of weather-related plume dispersion”, the court disagrees that this experience also qualifies him to discuss dose estimates. (Pis.’ Brief in Opposition at 74.)
Based upon the foregoing the court finds that this factor weighs against the admission of Dr. Vergeiner’s dose estimate testimony. It weighs in favor of his meteorological and synoptic analysis testimony, and will not weigh against the admission of the plume movie and water model.
8.
Non-Judicial Uses of the Methodology
Insofar as Dr. Vergeiner’s methods reflect standard meteorological analysis, they are widely used in non-judicial settings. The methodology followed with respect to the plume movie, water model and dose estimates deviates from standard methodology and appears to have been derived solely in connection with this litigation. This factor will weigh against the admission of Dr. Ver-geiner’s plume movie, water model and dose estimate testimony.
9.
Other Factors
In conjunction with the above
Dau-bert/Paoli II
analysis, the court indicated that Dr. Vergeiner’s explanations are, by and large, not subject to falsification. Further, while his hypothesis is generally logically consistent, it is not consistent with accepted theories. Most striking is Dr. Vergeiner’s disregard of primary data. While Dr. Ver-geiner might prove to be ahead of his time in his disdain for TLDs, TLDs are currently accepted devices for measuring atmospheric radiation. As such, Dr. Vergeiner’s cursory disregard of such measurements is unacceptable. Finally, the court finds that Dr. Ver-geiner’s plume movie and water model lack precision. “[B]road generalization[s] that can account for any possible state of affairs ... cannot be empirically tested, [and thus] are not as good.”
Science
72 Tex.L.Rev. at 784. Dr. Vergeiner himself indicated that his models are nothing more than generalizations and suppositions about what might have happened during the TMI accident. (Tr. at 635 — 36; Vergeiner Dep. at 278-79.) As such, the models are necessarily imprecise.
C.
Rule 702 Fit
The court’s analysis of the
Dau-bert/Paoli II
factors militates in favor of excluding Dr. Vergeiner’s plume movie and water model. While the court could exclude the proffered testimony based solely on those grounds, the court finds the more appropriate ground for exclusion of the plume movie and water model to be an absence of “fit.” The plume movie and water model are not accurate depictions of plume dispersion during the TMI accident. Plaintiffs do not dispute this fact. These models, instead, are proffered to demonstrate what may have happened. The models might have “fit” within the case if they bore any meaningful relationship to the actual topography of the TMI area or to the primary data.
The plume movie does not “fit” within the case because it is based upon an undefined source term, fails to account for weather readings on the TMI weather tower, and fails to incorporate all primary data. Thus, it cannot be found to bear a valid relationship to the TMI accident. Similarly, the water model does not take into account the actual topography of the TMI area. Any demonstration performed using the water model, therefore, would not bear a close relationship to the way a substance would be dispersed into the atmosphere around TMI. “Federal judges must ... exclude proffered scientific evidence under Rules 702 and 403 unless they are convinced that it speaks clearly and directly to an issue in dispute in the case, and that it will not mislead the jury.”
Daubert II,
43 F.3d at 1311 n. 17. Neither the plume movie nor the water model speak clearly to any issue in dispute in this case.
21
Because neither purports to provide an accurate representation of plume dispersion during the accident, the models cannot “clearly” speak to anything. Furthermore, there is a high potential that such models would mislead a jury insofar as the jury might perceive the models to accurately represent the manner in
*799
which plumes did disperse during the accident. The court will exclude the plume movie and water model testimony pursuant to Rules 702 and 403.
Robinson v. Missouri Pacific R.R. Co.,
16 F.3d 1083, 1089 (10th Cir.1994) (“Concerning future similar issues under Rule 702 we suggest that as ‘gatekeeper’ the district court carefully and meticulously make an early pretrial evaluation of issues of admissibility, particularly of scientific expert opinions in films or animations illustrative of such opinions.”).
D.
Conclusion
The foregoing analysis reveals that a significant portion of Dr. Vergeiner’s proffered testimony is unreliable and therefore inadmissible pursuant to Rule 702. Specifically, Dr. Vergeiner’s dose estimates will be excluded at trial as lacking scientific validity and reliability. Further, the court will exclude Dr. Vergeiner’s plume movie and water model as lacking the necessary “fit” with the instant litigation pursuant to Rule 702, and as potentially confusing to the jury pursuant to Rule 403.
McKnight v. Johnson Controls, Inc.,
36 F.3d 1396 , 1402 (8th Cir.1994) (excluding simulation “where some principles of some kind may be demonstrated but in a fashion that looks very much like a recreation of the events that gave rise to the trial”);
Robinson,
16 F.3d at 1089 n. 7 (noting that Rule 403 prejudice is a ground that a court should consider for exclusion of computer simulations and animations and the like);
Fusco v. General Motors Corp.,
11 F.3d 259, 264 (1st Cir.1993) (excluding accident replication videotape where the drama of the videotape was capable of overcoming the logic of the distinctions raised by opposing experts). As Dr. Vergeiner is an expert in meteorology, and can offer insights regarding the weather conditions during and immediately following the accident, the court will not exclude his testimony in this narrow area. The court will, however, require Plaintiffs to give a proffer as to how this narrow area of testimony “fits” absent Dr. Vergeiner’s other proposed testimony.
(See
Defs.’ Findings at 54, ¶8 (challenging the “fit” of the synoptic analysis presuming the inadmissibility of the plume movie and dose estimates).)
VI.
CHARLES E. ARMENTROUT
Professor Armentrout has masters degrees in Physics and Radiological Physics. According to his curriculum vitae, he is currently an Associate Professor at the University of Southern Maine. Professor Armentrout’s proffered testimony can be divided into four distinct areas as follows: (1) a discussion of what Armentrout calls “anomalously high” radiation background readings measured in Portland, Maine a few days after the TMI accident (2/20/95 Armentrout Rpt. at 2-4); (2) the results of soil sample analyses performed by Victor Neuwirth on soil samples extracted from TMI and its surrounding areas
{id.
at 4-23); (3) a discussion of radiation survey meter readings allegedly taken by a local resident during the TMI accident; and, (4) an explanation of the rate-dependant behavior of Geiger-Muller radiation detectors.
{Id.
at 26.)
22
The court has already precluded Professor Armentrout from testifying as to the substance of Victor Neuwirth’s report (e.g. soil sampling techniques and results).
In re TMI,
No. 88-1452 (M.D.Pa. November 9,1995) (preliminary order ruling on portions of Defendants’ motion
in
limine). Professor Neuwirth filed his own report and testified at the
in limine
hearings. Accordingly, Plaintiffs’ proffer with respect to the Armentr-out/Neuwirth soil sample analysis will be evaluated pursuant to the court’s discussion of the Neuwirth proffer. The court will now evaluate the remaining areas of Professor Armentrout’s proffered testimony.
A.
Proffered Testimony
1.
Section I of the Armentrout Report
On March 31, 1979, following a discussion with a former student, Professor Armentrout and that student assembled radiation detection equipment on the roof of the science building at the University of Southern Maine. (2/20/95 Armentrout Rpt. at 3.)
*800
The equipment recorded two “bursts” of what Professor Armentrout identifies as anomalous radiation readings. (Tr. at 1248-49.) Professor Armentrout memorialized his observations in a letter to the President of the University of Southern Maine. (Tr. at 1252-53.) The letter has been made part of the record. (2/20/95 Armentrout Rpt., Ex. A.) In his report, Professor Armentrout claims that government installations around Portland, Maine recorded similar radiation readings during the same time frame as his readings. (2/20/95 Armentrout Rpt. at 4.) Further, he notes that a Science magazine article stated that unusual radiation measurements were taken in Albany, New York shortly after the accident. Professor Armentrout contends that these reports verify the readings that he recorded and indicate that the TMI plume passed over the area. (2/20/95 Armentrout Rpt. at 4 & n. 4.) Despite these alleged “verifications,” Professor Armentrout testified that his readings do not tell him with a reasonable degree of scientific certainty what radionuclides were released at TMI or how large the release was. (Tr. at 1290.)
Defendants contend that this portion of Professor Armentrout’s proffered testimony should be excluded as it will not be helpful to the trier of fact. (Defs.’ Findings at 81, ¶ 15.) Plaintiffs’ findings do not directly address this section of the Armentrout report, but rather, focus on the soil sampling techniques and results. The court agrees with Defendants insofar as the testimony does not “fit” with any material fact in issue. Equipment on the roof of the science building at the University of Southern Maine registered radiation “spikes” shortly after the TMI accident began. Professor Armentrout suggests that the readings support the theory that the TMI plume passed over Maine. This contention is made absent reliable scientific corroboration or verification, and thus, cannot tie the radiation readings to any occurrence at TMI. Accordingly, the court finds that the proffered testimony will not assist the jury in determining any fact in issue. Professor Ar-mentrout will be precluded from testifying as to the substance of section I of his report.
23
2.
Section III of the Armentrout Report
In this section, Professor Armentrout speaks to his attempts to verify alleged radiation readings taken by civilians living near TMI during the accident. After repeated phone contact from a resident of Etters, Pennsylvania,
24
Professor Armentrout attempted to verify the resident’s alleged radiation readings. Professor Armentrout devised a means to calibrate the resident’s ion chamber monitor, and came to the Harrisburg area to meet with the gentleman and verify the alleged readings. However, when Professor Armentrout arrived in the area, he could not locate the gentleman who had contacted him. Instead, Professor Armentrout spoke to a neighbor who remembered the that he and the missing gentleman had purchased identical ion chamber monitors
25
from a local store. Further, this neighbor remembered that he made an indoor reading during the accident that sent his monitor off-scale. (Armentrout Rpt. at 25.) Professor Armentrout contends that this incident verifies the first gentleman’s reports of the high readings that he took during the accident.
Defendants challenge this section of the report “because experts in the field of dose reconstruction would not rely on hearsay statements which even Armentrout admitted were unreliable.” (Defs.’ Findings at 81, ¶ 16.) Again, Plaintiffs do not directly address this section of the Armentrout report,
*801
instead electing to concentrate on the soil sample analysis. The court must agree with Defendants. This anecdotal evidence does not meet the most basic standards of scientific validity or reliability. Accordingly, the court will exclude the testimony proffered in section III of the Armentrout report.
3.
Conclusion
Based upon the foregoing, the court finds the testimony proffered in section I of the Armentrout report to lack scientific validity, reliability and the requisite “fit” with the instant litigation. The testimony proffered in section III similarly lacks scientific validity and reliability; therefore, the testimony will be excluded. The court will now turn to the Neuwirth proffer and determine whether the testimony will be admitted at trial. Evaluation of the Neuwirth proffer will necessarily involve discussion of that portion of section II of the Armentrout report authored by Professor Armentrout.
VII.
VICTOR J. NEUWIRTH
Victor Neuwirth is a laboratory associate and Professor of Chemistry at the University of Southern Maine. Professor Armentrout enlisted the support of Professor Neuwirth to analyze soil samples from the TMI area to determine whether he could extract potentially radioactive materials from the samples. Professor Neuwirth performed the analysis on the soil samples and authored the portion of the Armentrout report dealing with the soil sample analysis. Additionally, Professor Neuwirth testified during the
in limine
hearings. Defendants challenge the proffered testimony as lacking a Rule 702 “fit” because no connection can be made between the results of the soil sampling and the 1979 TMI accident.
(See
Defs.’ Findings at 87, ¶ 1.)
A.
The Proffered Testimony
If permitted, Professor Neuwirth will testify as to the methods he employed and the results he obtained in analyzing certain TMI soil samples. At the direction of Professor Armentrout, Professor Neuwirth concentrated soil samples provided to him by Professor Armentrout and used a sodium iodine detector to make integrated counts of radionu-clides.
26
(Tr. at 1065-66; Armentrout Rpt. at 7-9.) Professor Neuwirth found certain samples to contain radioactive materials, but was unable to identify specific radionuclides. Despite his inability to identify specific ra-dionuclides, Professor Armentrout directed him to calculate the half life of each of the soil samples as a whole (rather than calculating the half lives of specific radionuclides within each soil sample).
27
Professor Neu-wirth took measurements of the same soil samples at a one year interval, with no intermediate readings. Based upon these two data points, he made a generalized half life calculation for each of the samples. Professor Armentrout used Professor Neuwirth’s half life calculations to make dose estimates for the TMI Plaintiffs.
B.
Daubert/Paoli Analysis
1.
Does the Method Consist of a Testable Hypothesis?
Plaintiffs contend that Professor Neuwirth’s hypothesis may be tested. Defendants do not directly address this issue. Professor Neuwirth’s hypothesis is that radioactive decay observed in the TMI soil samples is attributable to TMI fission products.
28
Plaintiffs argue that this hypothesis may be falsified insofar as the chemical ex
*802
traction process would either prove or disprove the notion that the soil samples were radioactive. The court agrees that this portion of the hypothesis is testable, and that it has been tested. However, the effect of the testing was negated as Professor Neuwirth did not use the test results to modify his hypothesis. After completing his soil sample analysis, Professor Neuwirth sent the samples to the Data Chem laboratories to obtain more specific radionuclide readings. The Data Chem results falsify Professor Neu-wirth’s hypothesis in that they demonstrate that the samples contain little other than naturally occurring background levels of radiation.
29
(Tr. at 295-303, 1050-52, 1296, 1298, 1300, 1303.) A proper methodology would have incorporated these findings and appropriately modified the underlying hypothesis. Professor Neuwirth neither acknowledged the findings nor modified the initial hypothesis.
Of more concern to the court are Professor Neuwirth’s half life calculations. Because he was unable to identify specific radionuclides within any sample, Professor Neuwirth was forced to make a generalized half life estimate for each soil sample as a whole. The estimate was based upon taking two separate readings of each sample with one year separating the two readings. Based upon the decay in the sample over an entire year, half life values were calculated. Professor Ar-mentrout then used the Neuwirth half life values to derive dose estimates for TMI residents.
Based upon the foregoing, this factor will weigh against the admission of the soil sample and half life calculation testimony.
2.Has the Methodology Been Subject to Peer Review?
The parties do not dispute that the chemical extraction process employed by Professor Neuwirth has been subject to peer review. It is doubtful, however, that the half life calculation technique utilized by Professor Neuwirth has been subject to peer review. Defense expert Dade Moeller testified that to determine the half life of a material, measurements must be taken at periodic intervals over time. (Tr. at 293-94.) He further testified that it is important to have more than two data points from which to calculate the half life.
(Id.)
Plaintiffs provide no evidence that the half life calculation approach utilized by Professor Neuwirth on the TMI soil samples has been peer reviewed. Consequently, the court finds that this factor weighs in favor of the admission of the chemical extraction testimony and against the admission of the half life calculation testimony.
3.Is There a Known or Potential Rate of Error?
Professor Neuwirth testified to the rate of error for his soil extraction calculations. (Tr. at 1033.) Based upon the testimony, the court believes that this is a standard rate of error for what the court has already found to be a standard extraction procedure. This factor will not weigh against the admission of the extraction testimony. To the contrary, the court finds the potential rate of error with respect to the half life calculations and dose estimates to be high. As discussed above, Professor Neu-wirth used only two data points when making his half life estimates. Consequently, the calculation does not accurately categorize the decay rate of the sample.
See Allen v. United States,
588 F.Supp. 247, 276 (D.Utah 1984); (Tr. at 293-94.). Because the decay rate is not properly categorized, the potential rate of error in estimating the half life value is high. Moreover, any error in the half life calculation carries over into Professor Ar-mentrout’s dose estimates as the half life calculations were integral to the dose calculations. Thus, this factor will weigh against the admission of the half life calculation and dose estimate testimony.
4.Were There Standards Controlling the Techniques Operation?
“A well-designed experiment shows how one variable responds to changes in
*803
variables under the control of the experimenter.” Federal Judicial Center,
Reference Manual on Scientific Evidence
347 (1994) (hereinafter “Reference Manual”). The court believes that the Neuwirth soil analysis can be categorized as an observational study. The Reference Manual notes the following regarding observational studies:
In an experiment the investigators select certain units for treatment. In an
observational study
the investigators have no control over who or what receives the treatment.
In such observational studies, investigators may speak of control groups ... and of controlling for potentially confounding variables ... [h]owever ... the causal inferences that can be drawn from such analy-ses rest on a less secure foundation than that provided by a controlled randomized experiment.
Research Manual at 351. During the hearings, Professor Neuwirth acknowledged that he and Professor Armentrout had yet to obtain a suitable control group from the TMI area. This control group, when found, would be used to confirm test results and assure that their equipment was functioning properly. (Tr. at 1022-23.) Professor Neuwirth also indicated that he never compared his samples with soil samples taken at or near the time of the TMI accident to determine whether his data was accurate or whether Professor Armentrout’s half life assumption was correct. (Tr. at 1045-46.) Professors Neuwirth and Armentrout have started with a less reliable methodology, and by their failure to find a suitable control group, placed the question of reliability into greater doubt. This factor will weigh against the admission of the proffered testimony.
5.
Is the Methodology Generally Accepted?
Although Defendants argue that use of gamma spectrometry, rather than use of a sodium iodine detector, is the preferable means of identifying specific radionuclides, Defendants do not suggest that sodium iodine detectors are not generally accepted. (Defs.’ Findings at 70, ¶ 8.) Indeed, Professor Neuwirth testified that his soil extraction techniques are generally accepted standard techniques. (Tr. at 1024-25.) The court finds that the technique utilized by Professor Neuwirth is generally accepted, and that the issue of whether it is the preferred technique goes to weight rather than admissibility. This factor will not weigh against the admission of the soil sample testimony.
The half life calculation methodology employed by Professor Armentrout does not enjoy the same level of acceptance as Professor Neuwirth’s extraction methods. There is nothing before the court to indicate that it is generally accepted to make a broad.half life calculation of a sample in lieu of delineating specific radionuclides within the sample and assigning half life values to each radionuclide. An expert’s self-serving assertion that his methodology is standard of generally accepted will not withstand the rigors of a
Daubert/Paoli II
analysis.
Daubert II,
43 F.3d at 1319 (“[Pjlaintiffs rely entirely on the experts’ unadorned assertions that the methodology they employed comports with standard scientific procedures.... We’ve been presented with only the experts’ qualifications, their conclusions and their assurances of reliability. Under
Daubert
that’s not enough.”) Accordingly, this factor will weigh against the admission of Professor Armentr-out’s half life calculation testimony.
6.
Is There a Relationship Between the Technique and Methods That are Established to be Reliable?
The court finds this factor most applicable to Professor Armentrout’s half life calculations. Dr. Moeller testified as to the proper and established techniques for calculating half lives of radionuclides.
30
Specifically, Dr. Moeller noted as follows:
In order to determine the half-life of a radioactive material, you must count it at periodic intervals, counting it over, you
*804
know, a period of time, and certainly you have a number of points, and then you plot those points on a curve. And if you plot the points on semi-log paper where the activity is on a logarithmic scale and the time is on an arithmetic scale, the points will follow a straight line if, indeed, you have one radionuclide and you’re following its half-life and the half-life is short enough so that it has decayed over the time period in which you’re counting it. He used his first and his last points and drew a straight line between them, and although he had at least in one case, an intermediate point, he did not bother to plot it. It would not have plotted on the straight line. And on the basis of that, and assuming that he had one radionuclide, he estimated a half-life.
(Tr. at 293.) Professor Armentrout’s methodology bears little relation to the established and reliable methodology outlined above by Dr. Moeller. The court finds that this factor weighs against the admission of Professor Armentrout’s half life calculations.
Similarly, Professor Neuwirth’s soil extraction techniques lack a key component evident in accepted and reliable methodologies — a suitable control sample. Without an appropriate control sample, it is impossible for Professors Armentrout and Neuwirth to verify their results in any meaningful way. This factor weighs against the admission of the soil sample analysis testimony.
7.
Qualifications of the Expert Based Upon the Methodology
Defendants do not challenge the qualifications of either Professor Neuwirth or Professor Armentrout. As the court agrees that Professor Neuwirth is qualified to testify as to the soil sample analysis and that Professor Armentrout is qualified to testify as to his half life calculations, no further evaluation of this factor is necessary. This factor will not weigh against the admission of the proffered testimony.
8.
Non-Judicial Uses of the Methodology
In a general sense, sodium iodine detectors are utilized and half life calculations are made in a variety of non-judicial settings. Indeed, but for the unique nature of this case, it is questionable whether these types of methodologies would ever have judicial uses. This factor will not weigh against the admission of the proffered testimony.
C.
Conclusion
Based upon the foregoing analysis, the court will exclude Professor Armentrout’s testimony on half life calculations and Professor Neuwirth’s testimony regarding his soil sample analysis. The testimony is not “derived from scientific method”, and does not represent “good science.”
Daubert,
509 U.S. at-,-, 113 S.Ct. at 2795, 2797 .
VIII.
JAMES E. GUNCKEL
Dr. Gunckel is a Ph.D. biologist now retired from a long-time position at Rutgers University, where he specialized in studying the effects of radiation on plants. A significant portion of Dr. Gunckel’s work experience involves his collaborative studies with Dr. Sparrow and the Brookhaven National Laboratory regarding the effect of radiation on plants. Dr. Gunckel is not a health physicist, nor does he have expertise in the area of tree biology.
A.
Proffered Testimony
Dr. Gunckel’s report consists of his evaluation of damaged trees in the TMI area, study of human and animal health in the TMI area, and estimates of dose based upon the tree, human and animal studies. The Gunckel hypothesis is as follows:
Radiation induced growth effects in trees would occur in areas where residents experienced symptoms indicating exposures to radioactivity at the time of the TMI accident and that those tree effects would occur in several species showing relative sensitivities (slight and severe growth effects, and lethality) corresponding to those determined in Brookhaven.
(10/23/95 Gunckel Aff. at 12.) Based upon his interviews with humans who complained of health irregularities during and after the accident, Dr. Gunckel concluded that a dose
*805
of 300-360 rem
31
was “the top dose at TMI that we could recognize by our yardsticks.” (Tr. at 1606.) This 360 rem dose is equal to “LD-50/60” — the dose at which “50 percent of the population would die from that dose in 60 days.” (Tr. at 1608.) Further, Dr. Gunckel indicated that he chose to study damaged trees located in the same areas as humans with health complaints to establish a method of comparing the erythema doses
32
experienced by humans with the doses presumably experienced by the trees.
(Id.
at 1606-07.) Through his study, Dr. Gunckel has concluded that the dose to trees was in the area of 1000 rem. (5/13/93 Rpt. at 10.) Dr. Gunckel is unable to adequately explain how doses of 360 rems to humans and 1000 rems to trees were delivered without significant human casualties.
(See
Tr. at 1611.)
The court will now evaluate Dr. Gunckel’s proffered testimony in light of the
Dau-bert/Paoli II
factors. The trees studies will be viewed separately from the human and animal studies. Additional facts related to each of these areas will be set forth where the court determines such explanation is necessary or helpful.
B.
Daubert/Paoli II Analysis
1.
Does the Method Consist of a Testable Hypothesis?
Dr. Gunckel has advanced a hypothesis capable of falsification. However, no effort has been made to verify either methodology or the conclusions reached,
a. Study of Human and Animal Health
In connection with this study, Dr. Gunckel interviewed approximately fifteen TMI residents regarding health effects they reportedly experienced at the time of the TMI accident. (Tr. at 1600-02.) During direct examination at the hearing, Dr. Gunckel described the nature and execution of his human health study as follows:
We went to these sites, and this was the case of revisiting the sites where people had complained of some sort of health effect. So we were there to do two things: First, to talk with them and to reaffirm whether their alleged effects were real, possible, or not, not trying to say as a doctor would be qualified to say that they had suffered from this, that and the other thing. We were simply asking, sort of trying to get a composite view of what had gone on. So we were not passing on identifying whether what they complained of was true or false. We were simply trying to associate people with possible episodic evidence with a plant indicator. That is, if we could — well, the ideal thing, of course, is if we had one of these indicators on every site and we could look at the indicator and see what the indication of damage was, and then going to our Brookhaven data bank, we could translate that effect into a dose. [Further we] ... found people weren’t very well informed, frankly, about what had happened to them. So you really had to go armed with a list of possibilities and see if they could recall or whether they had had anything on their medical records to authenticate what they thought they had experienced.... Specifically, we had a lot of conditions like, oh, let me see. Nausea, vomiting ... petechi-ae_low white blood counts_abnor-mal tastes and smells at the time.
(Tr. at 1600-01.) Based upon his interviews,
33
Dr. Gunckel concluded that five of
*806
the fifteen study subjects were exposed to erythemic doses.
In theory, Dr. Gunckel’s methodology is testable. He could have examined the medical records of the study subjects to determine whether their health complaints were consistent with a pre-existing medical condition.
34
Further, Dr. Gunckel could have made a differential diagnosis of each study subject to rule out potential causes of their symptoms other than radiation.
35
Most important for this court’s purposes, however, is that Dr. Gunckel made no effort to falsify and then modify his hypothesis. This factor will weigh against the admission of the proffered human/animal study testimony.
b. The Tree Study
After identifying areas in which persons described health effects allegedly related to the TMI accident, Dr. Gunckel looked for tree damage in these identified areas. At the hearing, Dr. Gunckel testified that he selected 80 damaged trees located in the fifteen areas where there was anecdotal evidence of human and animal health effects. (Tr. at 1608, 1610.) In describing how he selected the trees for his study, Dr. Gunckel noted the following:
[T]he kind of test I used, a very vague one, is the rule of thumb that most every observer uses on this sort of thing. If the tree, if the crown of the tree showed signs of thinning, in other words, you can see it better on a deciduous tree than you can on a pine tree, showed signs of thinning, in other words, it’s losing its leaves, that’s the first thing that comes down. And then if beyond that, you found that you had a color change, a color change is very significant in indicating that the tree is not terribly happy.
And I’ll certify every one of those trees as having received a thousand roentgen dose, which was adequate to kill the tip of the plant, the leader, the apical meristem of the leader on the tree.
(Tr. at 1608-09.) Notably, Dr. Gunckel did not attempt any type of differential diagnosis with the trees to determine whether their injury could have been caused by something other than radiation. (Gunckel Dep. at 188.) Thus, the court is again presented with a hypothesis that could be tested but that has not been tested. This factor will weigh against the admission of the proffered tree study testimony.
2.
Has the Methodology Been Subject to Peer Review?
a. Study of Human and Animal Health
Nothing before the court indicates that the human and animal health study methodology has been subject to peer review.
Peer review and publication do not, of course, guarantee that the conclusions reached are correct; much published scientific research is greeted with intense skepticism and is not borne out by further research. But the test under
Daubert
is not the correctness of the expert’s conclusions but the soundness of his methodology. That the research is accepted for publication in a reputable scientific journal after being subjected to the usual rigors of peer review is a significant indication that it is taken seriously by other scientists, i.e.,
*807
that it meets at least the minimal criteria of good science.
Dauberi II,
43 F.3d at 1318 . It is most curious to the court that in the sixteen years that this litigation has been pending, none of Plaintiffs’ experts’ reports, including this one, have been submitted for publication. This type of report, one purporting to show that persons and animals in the TMI area during the accident received erythemic doses, would surely be of interest to the relevant scientific community and the public at large. Yet, as Judge Kozinski of the Ninth Circuit observed of the Bendectin cases, “[i]t’s as if there were a tacit understanding within the scientific community that what’s going on here is not science at all, but litigation.”
Id.
(footnote omitted). This factor will weigh against the admission of the human and animal study.
b. The Tree Study
Plaintiffs contend that all methodologies utilized in the tree study have been the subject of extensive peer review. This argument is based on Plaintiffs’ characterization of the TMI tree study as being similar to studies performed by Dr. Gunckel and the late Dr. Sparrow at the Brookhaven National Laboratory. The court cannot agree with Plaintiffs’ characterization insofar as the TMI tree studies bear no functional relevance to the Brookhaven studies.
36
At Brookhaven, Drs. Gunckel and Sparrow irradiated trees with known doses of radiation using a gamma field. They then observed the effects exhibited by the trees following the known exposure. Finally, the doctors created a data base of the observations made and based upon the known dose exposures. To the contrary, the instant study involved looking at damaged trees and using the Brookhaven database to infer maximum possible dosage.
37
Accordingly, the fact that the initial Brookhaven studies were subject to extensive peer review is of little relevance to the study presently before the court.
As with the human and animal study, the court finds it odd that Dr. Gunckel’s tree study has never been submitted for publication. This factor will weigh against the admission of the proffered tree study testimony.
3.
Is There a Known or Potential Rate of Error?
a. Study of Human and Animal Health
Dr. Gunckel does not assign any specific rate of error to his human and animal health study. The court, however, finds the potential rate of error to be high. According to Dr. Gunckel’s
in limine
testimony, his opinion on dose at TMI is based primarily on the erythema allegedly experienced by five individuals he interviewed.
38
Dr. Gunckel did not review medical records or perform differential diagnosis. Moreover, as the court will discuss
infra,
Dr. Gunckel does not have the expertise in human or animal medicine sufficient to draw conclusions regarding medical conditions.
Dana Corp. v. American Standard Inc.,
866 F.Supp. 1481, 1501 (N.D.Ind.1994) (“An expert’s opinion ‘must be an “expert” opinion (that is, an opinion informed by the witness’s expertise) rather than simply an opinion broached by a purported expert.’” (citing
United States v.
*808
Benson,
941 F.2d 598, 604 (7th Cir.1991)). Finally, Dr. Gunckel did not employ any type of systematic survey, or case-control comparison of the TMI residents.
(See
Tr. at 1600.) These flaws in the methodology evidence to the court a potentially high rate of error. This factor will weigh against the admission of the human and animal health study testimony.
b. The Tree Study
During his
in limine
testimony, Dr. Gunckel proclaimed the rate of error with respect to his tree study to be five percent (5%). (Tr. at 1623.) It is not entirely clear how Dr. Gunckel calculated this rate of error, but his explanation indicates that this is the rate of error assigned to the work conducted by Dr. Gunckel and Dr. Sparrow at Brookha-ven.
(See id.
(witness’s explanation).) As discussed by the court above, the instant tree study bears little methodological relationship to the Brookhaven studies. Therefore, the court cannot credit the rate of error assigned by Dr. Gunckel. Because no efforts were made to falsify the Gunckel hypothesis, the court finds that his conclusion can amount to nothing more than speculation and conjecture. As such, the potential for error is high. This factor will weigh against the admission of the tree study testimony.
4.
Were There Standards Controlling the Techniques Operation?
a. Study of Human and Animal Health
Important standards that should have been controlling Dr. Gunckel’s techniques were notably absent from his study of human and animal health. Specifically, Dr. Gunckel made no differential diagnosis, did not examine all relevant medical records, based significant portions of his opinion on anecdotal evidence and did not attempt to make any type of systematic survey of all TMI residents. This factor will weigh against the proffered testimony on the human and animal health study.
b. The Tree Study
The tree study is somewhat more controlled than the human and animal health study; however, it too appears to be missing important control standards. A question of fact has arisen as to whether Dr. Gunckel made a differential diagnosis with respect to the trees. His initial report and deposition indicate that he did not, while an affidavit filed prior to the
in limine
hearing and his hearing testimony indicate that he did perform such a diagnosis. The court will presume that Dr. Gunckel’s testimony at the hearing was truthful.
(See
Tr. at 1608-09.) As such, the court finds that there were some standards controlling the operation of the tree study. This factor will neither weigh against the admission of the tree study testimony nor weigh strongly in favor of the admission of that testimony.
5.
Is the Methodology Generally Accepted?
a. Study of Human and Animal Health
Nothing before the
court
indicates that the methodology employed by Dr. Gunckel in conducting the human and animal health study is generally accepted by the relevant medical communities. Generally accepted medical opinions are not based solely upon anecdotal evidence.
39
The court has been presented with no other evidence aside from Dr. Gunekel’s self-serving statements, that his human and animal study methodology is generally accepted. Accordingly, this factor will weigh against the admission of the proffered testimony.
b. The Tree Study
The court cannot dispute that the methodologies employed by Dr. Gunckel and Dr. Sparrow at Brookhaven are generally accepted. Unfortunately, the tree study conducted by Dr. Gunckel in conjunction with the instant litigation bears little relation to the Brookhaven studies. Nothing on the record supports the contention that the specific methodology employed by Dr. Gunckel in the
*809
instant tree study is generally accepted. Dr. Gunekel’s assurances to this effect are not enough. This factor will weigh against the admission of the proffered testimony.
6.
Is There a Relationship Between the Technique and Methods That are Established to be Reliable?
The court has briefly discussed this factor in the context of other factors mentioned above. Dr. Gunckel’s methodologies in both the study of human and animal health and the tree study differ in important respects from methodologies established to be reliable. In the health study, Dr. Gunckel relies extensively on anecdotal information and fails to give a differential diagnosis.
40
At the hearing he admitted to not reviewing any medical files (Tr. at 1645-46). Moreover, what the court finds most unreliable and unusual about Dr. Gunckel’s medical testimony is that he is not a medical expert. Reliable methods allow qualified personnel to evaluate the data. In the tree study, Dr. Gunckel looks at damage in trees and extrapolates back to determine dose. This technique bears little relationship to his own pioneering standards of observing effects of known radiation doses through cellular and subcellular analysis. Based upon the foregoing, the court will weigh this factor against the admission of the proffered health and tree study testimony.
7.
Qualifícations of the Expert Based Upon the Methodology
a. Study of Human and Animal Health
Dr. Gunckel testified at his deposition that he is not a medical doctor, an epidemiologist, an immunologist, or a veterinarian. (Gunckel Dep. at 181-82.) He has not studied at all in the fields of human or veterinary medicine.
(Id.)
He has never diagnosed or treated people with acute radiation illness.
(Id.
at 169.) Moreover, his knowledge of animal and human health effects of radiation, by his own admission, was derived solely from literature reviewed in connection with his involvement in this litigation.
(Id.)
Although well-credentialed in his own field, Dr. Gunckel is not qualified to testify in the fields of medicine, epidemiology, immunology or veterinary medicine. Dr. Gunckel is therefore not qualified to give an expert opinion with respect to his human and animal health study.
b. The Tree Study
It is without question that Dr. Gunckel is a pioneer in the area of studying radiation effects on plants. Defendants only attack on Dr. Gunckel’s qualifications in this area is that Dr. Gunckel’s work was conducted on seedlings rather than on mature spruce trees. (Gunckel Dep. at 165.) This is the second instance where Dr. Gunckel’s deposition-testimony is contradictory. As before, the court will construe the facts most favorably to Plaintiffs and presume that he has studied the effects of radiation exposure on mature trees.
(See
Dep. at 162.) Based upon the foregoing, the court finds Dr. Gunckel qualified to testify as to his tree study. This factor will weigh in favor of the admission of the proffered testimony.
8.Non-Judicial Uses of the Methodology
The court finds no evidence that the novel approach taken by Dr. Gunckel with respect to his methodology for the health study enjoys any use beyond the scope of this litigation. Similarly, the court finds there to be little practical application of the tree study methodology outside the confines of this case. That being said, the court finds this factor to be of little relevance to its overall analysis. Part of the reason that these methods enjoy no use beyond this litigation is that, thankfully, nuclear accidents are an aberration rather than the norm. This factor will not weigh against the admission of any of the proffered testimony.
9.Other Factors
In its November 9, 1995 order, the • court noted that the internal logical consis
*810
tency of any hypothesis proffered would be a factor considered by the court when ruling on Defendants’ motion
in limine.
Defendants contend that the dose that Dr. Gunckel establishes as the threshold for the observed tree damage is logically inconsistent with the doses he estimated for humans, with doses estimated by Plaintiffs’ other experts, and to a large extent with the existence of human life. This criticism refers to Dr. Gunckel’s claim that the observed tree damage resulted from a dose of approximately 1000 rem. Dr. Gunckel further testified that a dose of 360 rem would be fatal to fifty percent of the human population within sixty days (“LD50/60”). Thus, Dr. Gunckel’s hypothesis regarding tree damage is logically inconsistent with the fact that the human mortality expected at a dose of 1000 rem did not occur. Dr. Gunckel attempts to explain the inconsistency by noting that the trees would have been outdoors during the entire accident and thus subject to a continuous dose of radiation. To the contrary, humans had the ability to go indoors and thereby lower the dose of radiation to which they were exposed. No testimony was offered to support the contention that trees could receive a dose equal to 1000 rem in the same area where persons staying indoors would receive a dose significantly less than 360 rem.
The court agrees with Defendants that Dr. Gunckel’s hypothesis is logically inconsistent on this point. Standing alone, this factor would not militate in favor of excluding the proffered testimony. Taken together with the court’s analysis of the
Daubert/Paoli II
factors, however, this factor adds to the factors already weighing in favor of the exclusion of the proffered testimony.
C.
Conclusion
Based upon the foregoing analysis, the court finds that the
Daubert/Paoli II
factors weigh decisively in favor of the exclusion of all of Dr. Gunckel’s proffered testimony. Application of the factors demonstrates that Dr. Gunckel’s methodologies lack scientific validity and reliability pursuant to Rule 702. Moreover, Dr. Gunckel lacks the qualifications to opine as a medical expert with respect to his human and animal health study. Because Dr. Gunckel is unable to verify his conclusion that the damage to the trees occurred at the time of the TMI accident, rather than at some earlier or later date, the proffered evidence also lacks the requisite Rule 702 “fit” with the instant litigation. Specifically, a jury would be unable to infer from Dr. Gunckel’s testimony that the tree damage he discusses was in fact caused by the TMI accident. Finally, the portion of Dr. Gunckel’s hypothesis related to dose is logically inconsistent with the lack of human casualties in the areas where tree damage was noted. The court will exclude all of Dr. Gunckel’s proffered testimony.
IX.
VLADIMIR A, SHEVCHENKO
Professor Shevchenko holds a Ph.D in Biological sciences, and has particular expertise in the area of radiation genetics; specifically with respect to the cellular and subeellular effects of radiation on plants. (Shevchenko Dep. at 7-9.) Much of his expertise has been developed through his practical experience studying radiation effects in the Eastern Ural Radiation Belt region, at the site of the Kyshtym atomic weapons plant accident, at the site of the Chernobyl nuclear power plant accident, at the Semipalatinsk Polygon, and at the sites of nuclear experiments in the Alti Region. (7/6/94 Shevchenko Rpt. at 2-3.) Professor Shevchenko has filed two reports with the court. The first report, filed July 6, 1994, discusses the tree study performed by Professor Shevchenko on damaged trees in the TMI area. The second report, filed February 21, 1995, summarizes four studies conducted by other Russian scientists.
41
On No
*811
vember 9, 1995, this court issued a preliminary order which,
inter alia,
prohibits any expert from testifying to the substance of a report conducted by a different expert.
In re TMI,
No. 88-1452 at 2 (M.D.Pa. November 9, 1995) (preliminary order granting limited portion of Defendants’ motion
in li-mine
). Based upon the 11/9/95 order, Professor Shevchenko was prohibited from testifying as to the substance of the Kozubov, Popov and Tarasenko reports.
See infra,
§ XII. The court did ultimately permit Professor Shevchenko to opine as to the Snigi-ryova report as the court found the substance of this report to be within Professor Shevchenko’s area of expertise. As such, Professor Shevchenko was capable of interpreting the data utilized and results obtained by Dr. Snigiryova, thereby affording Defendants the opportunity for meaningful cross-examination.
The court will next evaluate the proffered Shevchenko testimony pursuant to the
Dau-bert/Paoli II
factors. Separate analyses will be conducted for both the 7/6/94 tree study report and the 3/15/95 cytogenetic study of Dr. Snigiryova. Additional facts will be incorporated into the court’s analysis where necessary.
A.
Daubert/Paoli II Factor Analysis
1.
Does the Method Consist of a Testable Hypothesis?
a. 7/6/94 Tree Study Report
Professor Shevchenko visited the TMI area to study trees allegedly damaged during the TMI accident. While in the area, Professor Shevchenko was directed to the location of some of the damaged trees by Dr. Gunekel and Norman Aamodt.
42
(Shevchenko Dep. at 62-67.) Professor Shevchenko claims that he also selected some of the trees on his own.
(Id.)
In his report, Professor Shevchenko opines that tree damage observed in the TMI area is consistent with observations he has made at the Russian accident sites that he has studied. According to Plaintiffs, Professor Shevchenko’s hypothesis is that “the data reflected a release of radioactivity that was of a sufficient harmful dose to cause injury and radiation effects to trees, and ... [that] quantification of the amount of radioactivity released could be made from the data provided by the evaluation of the trees.” (Pis.’ Findings at 48.) This hypothesis is testable insofar as a scientist could examine the subject trees and determine whether there are other potential causes for the damage exhibited by the trees. A portion of the methodology, however, is not as readily testable.
Professor Shevchenko’s methodology was described by Plaintiffs as follows:
The methodology consisted of visual observation of trees in the TMI area, comparing the types and kinds of damages of the trees in the TMI area to trees observed in Chernobyl and damages in the gamma fields and making a professional judgment as to whether the damages and effects manifested by the trees in the TMI area reflected radiation exposure and dose within a specific range.
(Id.
at 48-49.) This portion of the hypothesis could only be tested by a person with the same type of background as Professor Shevchenko. Only someone who has been privy to the extensive on-site observation of nuclear accidents as Professor Shevchenko would be capable of judging whether radiation damage occurred based merely upon viewing a tree. Even with credentials and experience as impressive as Professor Shevchenko, the court questions the ability of any scientist to make a “radiation diagnosis” based upon little more than a visual comparison. Moreover, Plaintiffs have not identified evidence showing that Professor Shevchenko has developed a database of his tree observations, or that other scientists could access such a database if necessary.
The question as to whether the tree study methodology is testable is close. However, Professor Shevchenko did testify that he examined and ruled out all other potential
*812
causes of tree damage akin to the damage exhibited by the TMI trees. (Tr. at 1169-70.) This differential diagnosis, combined with Professor Shevchenko’s vast experience lead the court to believe that his methodology is testable and that it was tested by Professor Shevchenko. Accordingly, this factor will not weigh against the admission of the tree study testimony.
b. 3/15/95 Snigiryova Cytogenetic Report
Through its order dated November 9, 1995, this court permitted Professor Shevchenko to testify to the substance of the Snigiryova cytogenetic report. The hypothesis with respect to this report was that the TMI accident resulted in exposures and dose to persons in the TMI area reflected by an elevated number of chromosomal abnormalities. Specifically, Dr. Shevchenko believed that if radiation levels were higher than naturally occurring background levels, this would be reflected in a higher than average rate of chromosomal abnormalities. The methodology employed by Professor Shevchenko to test his hypothesis involved analyzing blood samples taken from persons living in the TMI area and looking for chromosome aberrations.
The blood samples for the cytogenetic study were collected by Plaintiffs’ attorneys and provided to Professor Shevchenko and Dr. Snigiryova. (Tr. at 1388.) The cytogen-etic method of dose reconstruction involves the identification under the microscope and scoring of chromosome aberrations in circulating lymphocytes in the blood. (3/15/95 Snigiryova Rpt. at 1-2.) The particular type of chromosome aberrations that the study focused on are called dicentrics.
43
(Id.
at 6-7.) A highly elevated frequency of dicentrics in a study group is indicative of radiation exposure.
(Id.
at 23.)
The court finds the hypothesis to be testable in that anyone with access to the blood samples could perform a similar analysis to verify the hypothesis. This factor will weigh in favor of the admission of the proffered cytogenetic testimony.
2.
Has the Methodology Been Subject to Peer Review?
a. 7/6/94 Tree Study Report
As with Dr. Gunckel, Plaintiffs contend that the published works of Dr. Gunckel and Dr. Sparrow evidence the peer review of the methodology employed by Professor Shevchenko. However, as the court discussed above, the methodology employed in examining trees in the TMI area bears little resemblance to the methodology peer reviewed in the Gunckel/Sparrow publications. Further, articles written about morphological damage observed in radiation-exposed trees, at best, establish a relation between exposure and effect, not that such observations are useful as a dose reconstruction method. The court cannot find evidence that the methodology of basing an opinion as to possible radiation exposure almost completely on visual inspection has been peer reviewed. Accordingly, this factor will weigh against the admission of the proffered testimony.
b. 3/15/95 Snigiryova Cytogenetic Report
Evidence has been presented indicating that the methodology employed by Dr. Snigiryova in the cytogenetic analysis is a standard methodology.
(See
Tr. at 343-401 (Testimony of Dr. Michael Bender).) The method has been subject to and withstood extensive peer review. (Tr. at 1171, 1406.) Defendants have raised an issue as to the propriety of the control group utilized by Dr. Snigiryova; however, as will be discussed
infra,
the court does not find this factor to substantially effect the validity of the methodology. This issue goes to weight rather than admissibility. Consequently, this factor will weigh in favor of the proffered cytogen-etic testimony.
3.
Is There a Known or Potential Rate of Error?
a. 7/6/94 Tree Study Report
No specific rate of error was assigned to the tree study. Professor Shevch-enko, instead, merely testified that he had
*813
studied enough trees to be confident that his conclusions were reliable to a reasonable degree of scientific certainty. (Tr. at 758.) Because so much of the methodology depends solely upon Professor Shevchenko’s comparative observations, an error in his judgment or recollection could significantly alter the conclusions reached. As such, it is impossible for the court to quantify this factor. Finding Professor Shevchenko’s vast experience to lend credence to his confidence in his results, this court will not weigh this factor against the admission of the proffered testimony; however, due to the inherently non-preeise nature of this methodology, this factor will neither be weighed in favor of the admission of the proffered testimony.
b. 3/15/95 Snigiryova Cytogenetic Report
Dose reconstruction through cyto-genetic analysis is an accepted and accurate method of dose reconstruction. The accuracy of the results, however, decreases as time elapses between exposure and testing. Plaintiffs have failed to introduce examples of other dose reconstruction efforts using the dicentric method conducted after so much time has elapsed since the alleged exposure. The passage of more than one decade from the alleged time of exposure to the execution of the dicentric study increases the potential rate of error of the study. Further, questions about the appropriateness of the control group (e.g. whether the historical Russian control group adequately controls for background radiation of a TMI area study population) tend to increase the potential for an erroneous conclusion. The court, however, finds these factors to go more to the weight to be accorded the testimony than to its admissibility. Accordingly, this factor will not weigh against the admission of the proffered cytogenetic testimony.
4.
Were There Standards Controlling the Technique’s Operation?
a. 7/6/94 Tree Study Report
Plaintiffs contend that there were proper standards controlling Professor Shevchenko’s tree study insofar as he studied a control group of trees in addition to the study trees. Further, Professor Shevchenko testified at the hearing, contrary to his report, that he did perform differential diagnosis to determine other possible causes of the tree damage. (Tr. at 1091-92.) The court finds that Professor Shevchenko did employ two of the most important standards to control the operation of his study. Accordingly, despite the absence of other types of controls, this factor will not weigh against the admission of the proffered tree study testimony.
b. 3/15/95 Snigiryova Cytogenetic Report
“Cytogenetic evaluation requires carefully controlled studies using analytical techniques not available in most laboratories.”
44
The methodology as performed by Drs. Shevchenko and Snigiryova did not employ several standards generally used to control the technique’s operation. Most significantly, the FISH method was not employed. This is the only method recognized in the literature as useful for assessing dose when so much time has elapsed since the alleged exposure. Further, the study did not attempt to match the presence in controls of potential confounders, such as age, gender or smoking. The data was not partitioned in accordance with these criteria to confirm that a confounder did not explain the presence of high dicentric counts. The court finds that important standards necessary to control the technique’s operation were absent from the cytogenetic study. Thus, this factor will weigh against the admission of the proffered cytogenetic testimony.
5.
Is the Methodology Generally Accepted?
a. 7/6/94 Tree Study Report
In support of their contention that Professor Shevchenko’s tree study methodology is generally accepted, Plaintiffs point to Professor Shevchenko’s “Bibliography” which lists the hundreds of publications he has
*814
authored and co-authored. While the list is certainly impressive, it has little relevance to the issue of whether or not the methodology employed in the instant tree study is generally accepted. Most importantly, the court notes that while the majority of the listed publications are on the subject of the effects of radiation in plants, most of these publications deal with effects at the cellular and subcellular levels. Moreover, the court was unable to find any publication dealing with the comparative symptomology diagnosis employed by Professor Shevchenko in the instant study. Accordingly, the court finds that Professor Shevchenko’s retrospective dose reconstruction through the observation of damage to tree tops is not a generally accepted method for reconstructing dose. This factor will weigh against the admission of the proffered tree study testimony.
b. 3/15/95 Snigiryova Cytogenetic Report
The parties do not disagree that dose reconstruction through cytogenetic analysis is a generally accepted method. Defendants question whether the instant study would fall within the generally accepted category due to the length of time that elapsed between the accident and the analysis of the study blood samples. The court finds that this issue goes more to weight than admissibility. As such, this factor will not weigh against the admission of the proffered cyto-genetic testimony.
6.Is There a Relationship Between the Technique and Methods That are Established to be Reliable?
a. 7/6/94 Tree Study Report
The court is unable to find an established and reliable method for back-calculating dose from observation of damage to trees due to the apparent novelty of the method. Accordingly, this factor is not helpful to the court in evaluating the reliability of the proffered testimony. This factor will weigh neither in favor nor against the admission of the proffered tree study testimony.
b. 3/15/95 Snigiryova Cytogenetic Report
The instant report bears a close relationship to cytogenetic analysis methodologies considered to be established and reliable. The most striking dissimilarities appear to be with respect to the length of time that has elapsed since exposure, and with respect to the selection of the control group. As was discussed above, the court finds that these factors go to weight rather than admissibility. Thus, it is of little consequence that the instant methodology differs from established and reliable methodologies in these ways. This factor will militate in favor of the admission of the proffered cytogenetic testimony. However, the weight accorded the testimony may be diminished due to the aforementioned flaws.
7.Qualifications of the Expert Based Upon the Methodology
Defendants have not challenged the qualifications of Professor Shevchenko with respect to either the tree study or the cytogen-etic analysis. Accordingly, this factor will weigh in favor of the admission of the proffered testimony.
8.Non-Judicial Uses of the Methodology
a. 7/6/94 Tree Study Report
For decades scientists such as Drs. Gunckel and Sparrow and Professor Shevch-enko have been observing the effect of radiation on plants. In general, these studies have consisted of subjecting a plant to a known quantity of radiation and then observing the plant’s reaction over time. Professor Shevchenko has also had the opportunity to observe the effect of radiation on trees based upon his visits to radiation exposed sites within the former Soviet Union. All of these studies and observations have been conducted in non-judicial settings. The observations made by Professor Shevchenko in the TMI area were made for the purposes of this litigation. It is unclear whether the technique employed by Dr. Shevchenko has been used extensively in non-judicial settings. The court, however, presumes that Dr. Shevchenko has employed this type of observational analysis when examining trees within exposed regions of the former Soviet Un
*815
ion. Due to the court’s own uncertainty with respect to the importance of this factor to the instant analysis, the court will weigh this factor neither in favor nor against the admission of the proffered testimony.
b. 3/15/95 Snigiryova Cytogenetic Report
The parties appear to agree that dose reconstruction through cytogenetic analysis has extensive use outside the present judicial setting. Accordingly, this factor will weigh in favor of the admission of the proffered cytogenetic testimony.
9.
Other Factors
Through its November 9, 1995 order, the court identified to the parties factors beyond the
Daubert/Paoli II
factors that it deemed to be particularly important to this case. These factors included falsifiability, logical consistency, consistency with accepted theories and precision.
In re TMI,
No. 88-1452 at 4 (M.D.Pa. November 9, 1995) (order explaining factors the court would consider in ruling on the motion
in limine).
Defendants have attacked Professor Shevchenko’s proffered testimony with respect to a number of these factors.
First, Defendants contend that the Shevchenko tree study report is not logically consistent with Professor Shevchenko’s testimony at the hearings. (Defs.’ Findings at 139-10, ¶ 19.) The court agrees that some of the hearing testimony of Professor Shevch-enko and others tends to contradict the Shevchenko hypothesis. These contradictions support the contention that Professor Shevchenko failed to subject his hypothesis to rigorous empirical testing.
45
While these examples evidence a degree of logical inconsistency with respect to the tree study, the court finds that the inconsistency is not significant enough to militate in favor of the exclusion of the proffered testimony. This factor will not weigh against the admission of the tree study testimony.
Second, Defendants contend that Professor Shevchenko did not attempt to falsify his cytogenetic findings by making dicen-tric counts of individuals who were measured by whole body counts, or who lived near TLDs, even though he testified that both whole body counts and TLD dosimetry were used in the development of the cytogenetic dose response curves in his Russian work. (Shevchenko Dep. at 221; Tr. at 1373, 1379.) The court agrees that Defendants have pointed to a flaw in Professor Shevchenko’s study design, however, the court cannot agree that this flaw dooms his proffered testimony in this area. The effect of his failure to falsify through comparison with TLDs and persons measured by whole body counts will go to weight rather than admissibility. Accordingly, this factor will not weigh against the admission of the proffered cytogenetic testimony.
Next, Defendants raise several issues which do not neatly fit within any of the categories discussed above. The court will now briefly touch upon those issues. First, Defendants raise an issue regarding the alleged time of death of the damaged tree tops. Professor Shevchenko testified that he used the dendrometric method to date the time of death of the tree tops. Nothing in Professor Shevchenko’s report indicates that he relied upon this method to determine the time of death of the tree tops. However, as in previous sections, the court will presume that the witness testified truthfully at the hearing. Professor Shevchenko’s statement is, however, contradicted by the report of Dr. Kozubov which indicates that the performance of the dendrometric analysis was based upon the
assumption
that the tree death occurred in approximately 1979. Accordingly, it is unclear how Professor Shevchenko determined when the tree tops died. It is evident that the time of death is related to determining the cause of the tree top death. If Professor Shevchenko merely
presumed
that the trees died within a few years of the TMI accident, his finding that radiation was the cause of
*816
death becomes less reliable. To the contrary, if Professor Shevchenko
determined,
scientifically that the tree top death occurred within a few years of the TMI accident, it would strengthen his finding that radiation exposure was the cause of death. The court finds that this issue goes to the weight rather than the reliability of Professor Shevchenko’s testimony. Accordingly, this factor will not weigh against the admission of the proffered testimony.
Second, with respect to the proffered cytogenetic testimony, Defendants raise an issue related to the propriety of the control group. Defendants contend that the cytogenetic analysis is flawed because Professor Shevchenko and Dr. Snigiryova did not employ a contemporaneous and geographically proximate control group. The effect of this, Defendants argue, is that it produces an erroneous background count for “normal” levels of dicentric chromosomes. Plaintiffs did, however, present testimony which showed that the historical Russian controls used by Professor Shevchenko and Dr. Snigiryova had background dicentric counts virtually identical to those of a control group measured at Hershey Medical Center in Hershey, Pennsylvania. (Tr. at 705.) The court finds that Plaintiffs have come forward with sufficient evidence to demonstrate that their control group, while not contemporaneous and geographically proximate, is adequate.
Finally, Defendants question the admissibility of certain testimony in light of Rule 26 of the Federal Rules of Civil Procedure. Defendants argue as follows:
Testimony about methodological steps that were not identified in an expert report violates the disclosure requirement of Rule 26. Federal Rule of Civil Procedure 26(2)(B), as amended in 1993, requires that testifying experts submit a written report which “shall contain a
complete
statement of all opinions to be expressed and the
basis and reasons therefor.”
(emphasis added). Contrary to the assertion of plaintiffs’ counsel during the hearing, the 1993 amendment did not merely recodify the status quo for expert discovery. The Advisory Committee Notes for the amended rule make clear that “a
detailed and complete
written report must be submitted.” Fed.R.Civ.P. 26(a)(2)(B) advisory committee notes (emphasis added). The note further provides that “[t]he information disclosed under the former rule in answering interrogatories about the ‘substance’ of expert testimony was frequently so sketchy and vague that it rarely dispensed with the need to depose the expert and often was even of little help in preparing for a deposition of the witness. Revised Rule 37(c)(1) provides an incentive for full disclosure; namely, that a
party will not ordinarily be permitted to use on direct examination any expert testimony not so disclosed. Id.
(emphasis added).
(Defs.’ Findings at 132-33, ¶ 2.) Defendants’ are most troubled by Professor Shevchenko’s hearing testimony that he did compare his study trees to a control area. No such use of a control group was mentioned in his report. While the court agrees with Defendants that Professor Shevchenko should not be permitted to introduce opinions not discussed in his report, the court finds the admission of this particular testimony to be harmless. Defendants have six months to prepare to cross examine Professor Shevchenko on the issue of the control group that he utilized. Further, they will have the benefit of his report, deposition and hearing testimony to assist them. Accordingly, the court finds the Defendants argument to be inapposite to this particular piece of testimony. This factor will not weigh against the admission of the proffered tree study testimony.
B.
Conclusion
Based upon the foregoing, the court finds the proffered tree study and cytogenetic testimony to be admissible. Defendants have made strong arguments in favor of the exclusion of this testimony. The court found the majority of these arguments to be credible and well-placed. Heeding the “the ‘liberal thrust’ of the federal rules,” however, the court finds that it cannot exclude the proffered testimony of Professor Shevchenko based upon Defendants arguments.
Paoli II,
35 F.3d at 739 (citing
Daubert,
509 U.S. at -, 113 S.Ct. at 2794 ). Vital to the courts decision on this matter is Professor Shevch-
*817
enko’s experience in the field. Likely more than any other expert before the court, Professor Shevchenko has had extensive firsthand experience examining the effects of radiation exposure. Since the early 1960s, Professor Shevchenko has been involved almost exclusively in studying the aftermath of nuclear accidents and nuclear testing at Kysh-tym, the Eastern Ural Radiation Belt Region, Chernobyl, Semipalatinsk Polygon, and the Altai Region. Thus, what his testimony may lack in rigid conformity to technical standards is amply counterbalanced by his extensive experience.
X.
STEVEN B. WING
Steven Wing, a Ph.D epidemiologist,
46
is currently a Professor of epidemiology at the University of North Carolina at Chapel Hill. (Tr. at 904.) He has filed two expert reports in this litigation. The first report, filed in January of 1994, focuses on Dr. Wing’s analysis of mortality rates in the TMI area. Steven Wing, “Mortality Trends in Relation to the Accident at Three Mile Island,” January, 1994 (hereinafter “1/94 Wing Rpt.”)
47
The second report, filed on February 25, 1995, is a reanalysis of the Susser/Hatch cancer incidence study. Steven Wing, “A Reanalysis of Cancer Incidence Near the Three Mile Island Nuclear Plant,” February 25, 1995 (hereinafter “2/25/95 Wing Rpt.”) Dr. Wing contends that the mortality and cancer data support the conclusion that persons in the TMI area were exposed to dangerous levels of radiation during the TMI accident. Defendants have challenged the admissibility of both of Dr. Wing’s reports and testimony related thereto.
Before proceeding with its analysis of Dr. Wing’s proffered testimony, the court notes that it will be guided in its inquiry by the following observations of the United States Court of Appeals for the Second Circuit:
By its nature, epidemiology is ill-suited to lead a factfinder toward definitive answers, dealing as it does in statistical probabilities and the continual possibility of confounding causal factors. In light of the inherent uncertainty shrouding issues of probabilistic causation, the decision of a district court on whether plaintiffs epidemiological evidence is sufficient to get to the jury should be guided by the well-established standards governing judgment as a matter of law—whether, viewed in the light most favorable to the non-moving party, “the evidence is such that, without weighing the credibility of the witness or otherwise considering the weight of the evidence, there can be but one conclusion as the verdict that reasonable [jurors] could have reached.”
Applied to epidemiological studies, the question is not whether there is some dispute about the validity or force of a given study, but rather it would be unreasonable for a rational jury to rely on that study to find causation by a preponderance of the evidence.
Asbestos Litigation,
52 F.3d at 1138 (citations omitted). The court will now proceed with an analysis of Dr. Wing’s testimony.
A.
Dr. Wing’s Mortality Study
1.
Proffered Testimony
Dr. Wing embarked upon the mortality trend study at the request of Norman Aam-odt, a consultant for Plaintiffs. (1/94 Wing Rpt. at 3.) According to Dr. Wing, Mr. Aamodt came to him with the results of a mortality trend analysis that he had performed.
48
(Id.)
According to the Aamodt
*818
analysis, mortality rates for 1980 were higher than historical averages. Mr. Aamodt suggested to Dr. Wing that the increase in mortality rates supported his theory that “high doses of radiation to small populations residing on elevated terrain in the path of noble gas plumes from the TMI accident lead to deaths of some older people who were already in poor health_”
(Id.
at 3.) After re-analyzing the data relied upon by Mr. Aamodt and reaching similar results, Dr. Wing agreed to perform a more extensive epidemiological study of mortality rates in the area.
Using a more sophisticated analysis than Mr. Aamodt, Dr. Wing was able to calculate age-adjusted death rates, and isolate by cause of death, for the time period in question.
(Id.
at 5.) Additionally, Dr. Wing included within his analysis a study of mortality trends in all Pennsylvania counties and nationwide during the 1970s and 1980s. Based upon his results, Dr. Wing concluded the following:
The major findings of this study that are
suggestive
of an effect of the TMI accident on mortality are:
1. an elevation of 1980 mortality in the . five counties around TMI amounting to about 490 more deaths than would have been expected from 1979 rates;
2. an increase in cancer mortality among young children in the five counties in 1980-82;
3. an increase of infectious disease death rates in the five counties after the accident; and
4. a geographic clustering of areas with higher-than-expected 1980 mortality in parts of Pennsylvania and the Middle Atlantic and New England States.
These results,
considered in the context of other studies and uncertainties about exposure estimates,
may reflect
mortality impacts of high-level radiation exposures
from
the 1979 accident at Three Mile Island.
(1/94 Wing Rpt. at 11 (emphasis added).)
2.
Daubert/Paoli II Factor Analysis
Defendants chose not to analyze the mortality study through the
Daubert/Paoli II
factors based upon their belief that the study testimony should be excluded because it “draws no conclusion regarding accident doses based on that study, [and] it is [therefore] not helpful to the trier of fact.” (Defs.’ Findings at 172, ¶ 1.) The court’s discussion of these factors will be drawn from the direct and cross examination of Dr. Wing. Defendants’ challenge to the proffered testimony will be addressed following the court’s review of the
Daubert/Paoli II
factors.
a.Does the Methodology Consist of a Testable Hypothesis?
At the
in limine
hearing, Dr. Wing stated his hypothesis as follows:
That high doses of radiation to small populations residing on elevated terrain in the path of noble gas plumes from the TMI accident led to deaths of some older people who are already in poor health, and that a high post-accident death rate in these small groups appears as a relatively small elevation of mortality in the five-county population as a whole.
(Tr. at 923.) The court finds this hypothesis to be testable. Adjusting his data for age, Dr. Wing was able to test and verify his hypothesis. (Tr. at 923.) This factor will weigh in favor of the admission of the proffered mortality study testimony.
b.Has the Methodology Been Subject to Peer Review?
Dr. Wing testified that the particular study at issue has not been subject to peer review. (Tr. at 924.) He added, however, that he has authored similar studies using some of the same methods and data which have been subject to peer review.
(Id.)
The court finds that the methodology of the TMI mortality study has been peer reviewed. Dr. Wing used basic and accepted epidemiological techniques to conduct the study. This factor will weigh in favor of the admission of the proffered testimony.
c.Is There a Known or Potential Rate of Error?
According to his hearing testimony, Dr. Wing did not apply statistical significance testing to the mortality study.
(Id.)
Dr.
*819
Wing implies that he has used another method to “assess issues of precision of the results.”
(Id.
at 925.) The court is unable to ascertain the specifics of this method. Nevertheless, with respect to the limited and preliminary conclusion that this study presents (discussed
infra),
the court finds the rate of error to be moderately high. Accordingly, this factor will weigh only slightly in favor of the admission of the proffered mortality study testimony.
d.Were There Standards Controlling the Technique’s Operation?
Because Dr. Wing’s underlying methodology was elementary and followed standard procedures, the court finds that he employed basic standards to control the operation of the technique.
(See
Tr. at 925.) This factor will weigh in favor of the proffered testimony.
e.Is the Methodology Generally Accepted?
As the court has alluded to in its analysis of previous factors, the underlying methodology utilized by Dr. Wing is a standard and generally accepted epidemiological methodology.
(Id.)
This factor will weigh in favor of the admission of the proffered testimony.
f.Is There a Relationship Between the Technique and Other Methods Established to be Reliable?
Dr. Wing contends that “these [mortality] studies have been in the past used to address many questions about health effects of agents on populations.” (Tr. at 926.) Insofar as the study may be viewed as a method of addressing questions a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1971018. Public record. Not legal advice.